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decided: September 24, 1981.


No. 120 January Term, 1979, Appeal from the Order of the Superior Court at No. 1837 October Term, 1977, dated December 14, 1978, reversing the Order of the Court of Common Pleas of Philadelphia, at No. 4386 April Term, 1972, dated May 16, 1977.


Steven H. Berkowitz, Philadelphia, for appellant.

M. Patricia Harkins, Layfayette Hill, for appellee.

Roberts, Nix, Larsen, Flaherty, Kauffman and Wilkinson, JJ. Flaherty, J., joins in this opinion and files a concurring opinion. Nix, J., concurs in the result. Larsen, J., files a dissenting opinion. O'Brien, C. J., did not participate in the consideration or decision of this case.

Author: Roberts

[ 495 Pa. Page 428]


At issue on this appeal is whether the Court of Common Pleas of Philadelphia abused its discretion in ordering an ex parte trial. The Superior Court held that the ex parte trial was improper under the principles established by this Court's decision in Budget Laundry Co. v. Munter, 450 Pa. 13, 298 A.2d 55 (1972). We share the Superior Court's view and, hence, affirm.*fn1


Appellant Triangle Pacific Philadelphia Corp. and appellee Trident Enterprises, Inc., were parties to a contract, executed in May of 1971, by which appellant agreed to supply appellee with lumber and materials at specified prices. In April of 1972, appellant filed a complaint in assumpsit alleging that it had sold and delivered goods to appellee pursuant to the contract, and that appellee had failed to pay for them. Appellant sought a judgment of $4,171.25, plus interest from the date the account had become due. The complaint was signed by Gilbert Newman, Esq., a member of a large Philadelphia law firm representing appellant.

[ 495 Pa. Page 429]

Appellee is represented by M. Patricia Harkins, Esq., a sole practitioner whose offices were located in Philadelphia at the time the complaint was filed. In an answer to the complaint, appellee denied that it had received all of the goods allegedly sold, and claimed that the prices actually charged and appellant's alleged schedule of prices varied. Appellee also filed a counterclaim in which it alleged that appellant's claimed failure to deliver materials and related defaults had caused appellee to expend $5,318.44, nearly $1,150 more than the amount of the judgment which appellant sought. Still represented by Gilbert Newman, Esq., appellant denied the allegations contained in appellee's counterclaim.

In June of 1972, appellant served upon appellee two sets of interrogatories which were prepared by Newman. The matter then proceeded to arbitration, with both sides represented by their original counsel. In March, 1973, a panel found in favor of appellant, in the full amount which appellant had claimed. Appellee appealed to the Court of Common Pleas of Philadelphia.

Some time after appellee had filed its appeal, counsel for appellee moved her law office from Philadelphia to Montgomery County and representation of appellant changed hands within the same Philadelphia law firm, from Newman to Steven Berkowitz, Esq. The record in no respect indicates that this change of representation was made known to counsel for appellee.

In December, 1975, and again early in January, 1976, the appeal was noted in The Legal Intelligencer, the official newspaper for the publication of notices of the court of common pleas. The December publication indicated that appellee's appeal, along with other appeals from arbitration, would be assigned for trial starting January 5, 1976. The January publication indicated that appellee's appeal was assigned for trial on January 16, 1976, before Judge McDevitt. It is agreed that counsel for appellee did not subscribe to the Intelligencer.

[ 495 Pa. Page 430]

Berkowitz, new counsel for appellant, did not contact the office of counsel for appellee until the week preceding the scheduled trial date, when he phoned several times. There is no indication on the record that Berkowitz explained that he had replaced appellant's previous counsel Newman. Berkowitz's calls were not returned.*fn2

On January 13, 1976, Berkowitz delivered a brief to Judge McDevitt and mailed a copy to counsel for appellee. On January 14, upon receipt of appellant's brief, counsel for appellee immediately wrote Berkowitz to advise him that she would be in trial in Montgomery County on the 16th. The letter went on to state:

"If you can arrange with Judge McDevitt to reschedule this for a date certain, I shall be most grateful. The main witness for the defense in this matter is a former superintendent of the Defendant Corporation who is now employed out of state and it will be necessary for me to secure his appearance, a task which might require several weeks notice to him."

On January 16, the scheduled date of trial, counsel for appellee phoned Judge McDevitt's chambers. Although the record indicates that the court continued the matter until January 19, there is nothing to indicate that the court directly informed counsel for appellee of the continuance.

[ 495 Pa. Page 431]

Indeed, an affidavit of counsel for appellant states that the court assigned to him the task of advising counsel for appellee of the new trial date.*fn3

On January 19, counsel for appellant appeared before Judge McDevitt ready to proceed in the absence of appellee or its counsel. Counsel for appellant stated to the court:

"I have, upon receiving notice of the pendency of this jury trial, attempted on approximately a dozen occasions in the past week or so to contact both counsel for the defendant [(appellee)] and the defendant itself.

I have left messages with the individuals who answered the phone calls which I placed and each time asked that the phone calls be returned. Not one of them has been returned.

I have notified Ms. Patricia Harkins, who is counsel of record for the Defendant by letter on Monday and by letter this past Friday that the matter was coming up for jury trial, first that it was coming up last Friday, and, then, subsequently, that it would be listed today at 10:00 a. m.

The only response I have received is a phone call from the attorney for the Defendant's secretary, who conveyed the request that a new date be set, with no specific number of days and no reason advanced for the request.

There was a letter sent to me of Friday, of which I have sent a copy to Your Honor, from Ms. Harkins, and she indicated that they would need a period of at least several weeks to locate a witness who is in another state.

[ 495 Pa. Page 432]

Based on these circumstances, Your Honor, and upon the fact that this is a simple book account case, if I can call it that -- goods were delivered and not paid for -- I must ...

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