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HANKEY EXCAVATING COMPANY v. MR. AND MRS. PAUL TRAYLOR (03/26/84)

submitted: March 26, 1984.

HANKEY EXCAVATING COMPANY
v.
MR. AND MRS. PAUL TRAYLOR, APPELLANTS



No. 114 Pittsburgh, 1983, Appeal from the Order of the Court of Common Pleas, Civil Division, of Butler County at No. 79-1423

COUNSEL

Jerry B. Landis, Pittsburgh, for appellants.

James A. Taylor, Butler, for appellee.

Spaeth, President Judge, and Brosky and Montgomery, JJ.

Author: Montgomery

[ 330 Pa. Super. Page 148]

The Appellants, Mr. and Mrs. Traylor, file the instant appeal from an order of the lower court dismissing certain exceptions filed by the Appellants as untimely and entering judgment for the Appellee, Hankey Excavating Company. For the reasons explained below, we will remand this case for further proceedings.

The record shows that on December 17, 1979, the Appellee filed a complaint in assumpsit alleging that pursuant to an agreement, the Appellee had performed certain construction work for the Appellants on their property. The Appellee claimed it had not been fully paid and sought a recovery in the amount of $3,959.20. On April 11, 1980, the Appellants

[ 330 Pa. Super. Page 149]

    filed an answer and counterclaim, contesting liability and asserting that by reason of negligent and defective work allegedly done by the Appellee, the Appellants suffered losses in the amount of $14,000.00.

The case was initially tried before a board of arbitrators and, on July 8, 1980, the arbitrators entered an award in favor of the Appellee on both its claim and the Appellants' counterclaim. A notice of appeal was filed by the Appellants on August 7, 1980. Thereafter the lower court fixed December 1, 1982 as the date for a non-jury trial. A copy of the court's hearing order was allegedly sent by the Prothonotary, by regular mail, to the Appellants' trial counsel, E. Larry Kovel. However, the Appellants have maintained that they never received a notice of the date of trial. A non-jury trial was held, as scheduled, on December 1, 1982, but the Appellants did not appear, and the lower court entered a decision in favor of the Appellee on both the complaint and counterclaim. Apparently due to their failure to appear, the court awarded the Appellee attorney fees and costs.

On December 30, 1982, the Appellants filed exceptions to the court's decision, together with the appearance of Appellants' current counsel. These exceptions recited that E. Larry Kovel, Appellants' counsel of record at the time of the arbitration proceedings, had never been informed of the scheduling of the December 1, 1982 trial, was no longer associated with his former law firm, and could not be located in telephone directories or through the local bar association, the Disciplinary Board or the State Court Administrator's Office. Appellants averred that they had a valid defense and counterclaim and asserted that a miscarriage of justice would result if they were denied the right to a trial in these circumstances.

The lower court, in an order dated January 3, 1983, dismissed the exceptions as being ...


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