No. 2535 October Term, 1978, Appeal from Judgment of the Court of Common Pleas, Civil Division, County of Philadelphia, at No. 4277 October Term, 1975.
Harold W. Rehfuss, Philadelphia, for appellants.
Steven A. Segal, Philadelphia, for appellee.
Spaeth, Brosky and Van der Voort, JJ. Brosky, J., files a concurring opinion.
This appeal arises out of an action in assumpsit. Appellee filed suit against appellants for the balance due on a contract for goods and services. The complaint alleged that appellants had used Transit Construction Company (hereafter referred to as the Company) as a means to defraud appellee. Appellee claims that appellants controlled the company. Judgment by default for failure to file an answer was entered on March 9, 1976. By agreement, judgment was opened on April 26, 1976. Appellants filed an answer to
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the complaint on June 7, 1976, in which they denied the majority of appellee's allegations, including the wife's involvement in the company; and the company's use to defraud the appellee. On June 7, 1976 appellee filed interrogatories. Appellants filed their answers on July 15, 1976. On April 1, 1977 appellee filed a motion for production and inspection requesting records regarding the company's corporate character; the court signed an appropriate order therefor. Appellants failed to produce the requested records and appellee filed a motion for sanctions requesting the court to: a) enter an adjudication that appellants had admitted to several of the averments contained in the complaint; and, b) exclude at trial appellants proof on such issues. The lower court granted the requested relief and held that appellants were presumed to have acted through the company; the company was used as a device to defraud appellee, and the company had entered into a contract with appellee.
Appellants and appellant's counsel failed to appear at an arbitration hearing scheduled for October 20, 1977 and the arbitrators accordingly found for appellee. Appellants appealed the arbitrator's findings; appellants and counsel failed to appear before the lower court. The court dismissed the appeal and entered an order finding for appellee. Appellant's motion for a new trial nunc pro tunc was denied; judgment was entered for appellee. This appeal followed.
Appellants here make two arguments for reversing the lower court:
I. The court erred in dismissing the appeal from arbitration when counsel had no notice of the hearing and he was attached on cases of higher priority; and
II. The court erred in entering judgment without requiring the presentation of appellee's case.
I. Appellants offer a two fold argument. First, they claim they had not received notice of the arbitration appeal hearing, and second, they contend that counsel was attached on the day in question on other matters which under ...