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MARY CATHERINE WARDEN v. T. RICHARD ZANELLA AND LOIS R. ZANELLA (04/16/80)

submitted: April 16, 1980.

MARY CATHERINE WARDEN, ZORA KURTZ, THEODORE SOKOLOVICH, JR., DIANNA KALDON AND CORA SOKOLOVICH, AS HEIRS OF THE ESTATE OF THEODORE SAMUEL SOKOLOVICH, DECEASED, ORIGINAL MORTGAGEE
v.
T. RICHARD ZANELLA AND LOIS R. ZANELLA, HUSBAND AND WIFE, APPELLANTS



No. 713 April Term 1979, Appeal from the Order of the Court of Common Pleas of Beaver County, Civil Action - Law, at No. 937 of 1978.

COUNSEL

T. Richard Zanella, appellant, in pro. per.

Lois R. Zanella, appellant, in pro. per.

Alfred L. Steff, Jr., Beaver, for appellees.

Spaeth, Wickersham and Lipez, JJ.

Author: Spaeth

[ 283 Pa. Super. Page 139]

This is an action of mortgage foreclosure.

On March 29, 1973, appellants T. Richard and Lois R. Zanella (husband and wife), executed a bond accompanied by a mortgage mortgaging certain real estate to Theodore Samuel Sokolovich. Appellants were to pay $51,900 at a rate of $400.00 per month over a five year period, beginning May 1, 1973, and all taxes and insurance on the property.

[ 283 Pa. Super. Page 140]

At the expiration of this period, on April 1, 1978, the entire balance was due. In case of default, the mortgage called for payment of the unpaid balance, along with interest, damages, costs and attorney's fees.*fn1 On December 6, 1973, Sokolovich died, devising his interest in the mortgage to appellees as his heirs. On June 1, 1978, appellees brought the present action, alleging that appellants had failed to make timely payment of the March 1, 1978, installment, and had not paid the full balance of principal and interest that became due on April 1, 1978. At the time of the complaint, appellees claimed that this amount totaled $44,932.97.

After a non-jury trial, the lower court rendered a verdict in favor of appellees in the amount of $48,396.18. Appellants discharged their attorney, who petitioned for and was granted permission to withdraw her appearance. Appellants then filed a motion for a new trial, which was denied by the lower court en banc by order of July 9, 1979. This appeal is from that order.

1

Appellants make essentially five arguments in their pro se brief. Appellant's first argument is that their attorney failed to protect their constitutional rights to a trial by jury. However, we find that appellants effectively waived their right to a trial by jury.

It is settled that the right to a trial by jury may be waived by conduct as well as by express statement. Downs v. Scott, 201 Pa. Super. 278, 191 A.2d 908 (1963). In Cohen v. Sykes, 180 Pa. Super. 427, 118 A.2d 208 (1955), a plaintiff in an assumpsit action waived the right to a jury, but the defendant asserted it in a counterclaim filed with the court. However, through an error of the prothonotary's office, the case was placed on the non-jury list. The defendant failed to notify the court of the error, and went to trial without objection. In fact, the defendant did not complain about the

[ 283 Pa. Super. Page 141]

    lack of a jury until three days after the verdict was rendered. Finding waiver, we said:

It is well settled that the right to a jury trial may be waived, either expressly or by implication, Wright v. Barber, 270 Pa. 186, 113 A.2d 200. Although defendant did not expressly waive his right by following the statutory procedure, he clearly waived it by implication by standing by on numerous occasions and accepting a non-jury trial without protest.

180 Pa. Super. at 430, 118 A.2d at 209.

See also Stathas v. Wade Estate, 251 Pa. Super. 269, 380 A.2d 482 (1977).

In the present case, the only time appellants requested a jury trial was on August 3, 1978, when they included a demand for a jury in a Motion to Quash service. However, on March 26, 1979, the attorney for appellees filed a Certificate of Readiness, representing that the trial would be non-jury. Appellants took no exception to this representation. Nor did appellants reinstate their demand for a jury in the pre-trial statement filed with the lower court, or when the lower court filed its pre-trial order of June 5, 1979, which called for a non-jury trial. Finally, appellants made no objection to the lack of a jury at the trial.

Appellants attribute their failure to object to a non-jury trial to their attorney, who they allege failed to assert their rights before the court. This argument closely resembles the claims of ineffectiveness of counsel, ordinarily raised in post conviction proceedings. Even in a criminal trial, however, decisions of counsel strategic in nature are binding on the client. Commonwealth ex rel. Bell v. Rundle, 420 Pa. 127, 216 A.2d 57, cert. denied, 384 U.S. 966, 86 S.Ct. 1599, 16 L.Ed.2d 678 (1966). In Commonwealth ex rel. Adderley v. Myers, 418 Pa. 366, 211 A.2d 481 (1965), our Supreme Court said:

Decisions of a trial attorney are binding upon his client if they are strategic in nature: Henry v. Mississippi, 379 U.S. 443, 85 S.Ct. 564 [13 L.Ed.2d 408] (1965). As if such decisions ...


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