No. 3067 Philadelphia, 1981, Appeal from the Order of October 28, 1981 in the Court of Common Pleas of Philadelphia County, Civil Division, at No. 4191 December, 1975.
Nino V. Tinari, Philadelphia, for appellants.
Jill A. Douthett, Assistant City Solicitor, Philadelphia, for appellees.
Wickersham, Rowley and Watkins, JJ.
[ 324 Pa. Super. Page 173]
This matter comes before us on direct appeal from the entry of a compulsory non-suit by the Honorable Ned L. Hirsh in the Court of Common Pleas of Philadelphia County on October 27, 1981 when appellants Frank, Michael and Florence Salladino failed to appear at the trial of their trespass action against Patrolmen Brooks and Conrad, two police officers employed by the City of Philadelphia. Appellants have presented one question for us on review and we limit our review to the question of whether the trial judge abused his discretion in granting appellee/defendant's request for a non-suit.
It is our opinion that as to appellants/plaintiffs Michael and Florence Salladino, the trial judge did not abuse his discretion in granting the non-suit. However, we find that as to Frank Salladino a non-suit should not have been granted.
The granting of continuances is governed by Rule 216*fn1 and Rule 218 of the Pennsylvania Rules of Civil Procedure.
[ 324 Pa. Super. Page 174]
Rule 218 states in its pertinent part, "When a case is called for trial, if one party is ready and the other is not ready, without satisfactory excuse being made known to the court, a non-suit may be entered on motion of the defendant, or the plaintiff may proceed to trial, as the case may be."
Appellants filed a Complaint in Trespass on December 29, 1975 alleging they were victims of police brutality in an incident that occurred on February 20, 1975. The record shows that between 1975 and August, 1980, plaintiffs' only activities of record were to respond to defendants' discovery. A certificate of Readiness for Trial was filed by plaintiffs on August 16, 1980 and on May 20, 1980, the
[ 324 Pa. Super. Page 175]
parties stipulated to place the case on the Major Trial List. From the time the case was placed on the Major Trial List until September, 1981, the plaintiffs requested several continuances. Approximately six weeks in advance of trial, the parties were notified of the time and place of trial. The scheduled trial date was for October 27, 1981. However, on that day at 9:15 a.m., counsel for the appellants telephoned the court to seek another continuance. This request was denied and at 10:00 counsel for the plaintiffs did appear but without his clients. Testimony was given as to the whereabouts of the plaintiff Frank Salladino. He was incarcerated in Montgomery County. Neither of the other plaintiffs appeared at trial and no excuses were offered for their ...