No. 143 March Term, 1978, Appeal from the Judgment of the Court of Common Pleas, Civil Division of Allegheny County at No. 2030 January Term, 1973 and the Order of the Superior Court of Pennsylvania dated April 13, 1978 and entered at No. 118 April Term, 1977
Allen N. Brunwasser, Pittsburgh, for appellant.
Joseph E. Schmitt, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Manderino, Larsen and Flaherty, JJ. Roberts and Manderino, JJ., each filed dissenting opinions.
We are called upon in this appeal to assess the propriety of the trial court's decision to permit the plaintiff in a civil suit to proceed to trial and verdict in the defendant's absence under Pa.Rule of Civil Procedure 218. The trial court concluded that the attending circumstances justified permitting the trial to be conducted without the presence of defendant, his witnesses if any, and counsel.*fn1 On appeal to the Superior Court, the judgment was sustained. Recognizing the serious problems created by on-the-day-of-trial continuances for the fair and proper administration of justice and the need to fashion rules to limit such practices to cases
of the clearest necessity, it is nevertheless imperative that the circumstances justifying the invocation of a sanction that deprives a party of his day in court must be carefully defined. We therefore granted review.
Appellant argues that the result reached was basically unfair under all of the circumstances and that the sanction of Rule 218 was improperly imposed since there was a "satisfactory excuse" for the defense's unreadiness when the case was called to trial. To answer these questions we must first consider the factual setting in which the trial court concluded that the sanction of Rule 218 was properly invoked. On December 22, 1972, appellee, Dublin Sportswear, commenced suit in assumpsit in the Court of Common Pleas of Allegheny County against Vincent Charlett and his business, the Arthur Robert School of Beauty Culture, for goods sold and delivered. The case was first placed on the jury trial list for April 3, 1975 but was not reached on that date.
On September 23, 1975, notice was given in the Pittsburgh Legal Journal that the case was on the trial list for Monday, November 10, 1975 and that it would be called on Friday, November 7, 1975. At the call of the list on Friday, November 7, both counsel responded that they were ready to proceed to trial on Monday at 10 a. m. On Monday morning, counsel agreed to expedite the jury selection by accepting the first twelve jurors. Counsel for appellant advised appellee's counsel that he had to return to the Federal Court and the Juvenile Division of the Common Pleas Court on November 12 to honor prior commitments (November 11 was a legal holiday) and that if trial in the instant matter did not begin on November 10, that he would not be available until mid-morning on Thursday, November 13.*fn2
When it was apparent that the case could not be tried on November 10 because there was no ...