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EQUIPMENT FINANCE v. EDWARD J. TOTH (06/08/84)

filed: June 8, 1984.

EQUIPMENT FINANCE, INC.
v.
EDWARD J. TOTH, APPELLANT



No. 491 Pittsburgh, 1982, Appeal from the Judgment entered April 19, 1982, Court of Common Pleas, Allegheny County, Civil Division at NO. GD 79-33141.

COUNSEL

Daniel F. Svidro, Washington, for appellant.

John A. Miller, Beaver, for appellee.

Rowley, Johnson and Popovich, JJ. Popovich, J., concurred in the result.

Author: Johnson

[ 328 Pa. Super. Page 352]

Appellant seeks review of the trial court's refusal to grant him a jury trial, where he had failed to demand such right by endorsement on a pleading or by a separate writing in compliance with Pa.R.C.P. 1007.1, and where the right was first requested when the case was called for trial. Because we find that appellant failed to comply with the local rules of court governing post-trial review, we conclude the only issue before us to have been waived and we, accordingly, dismiss the appeal.

Suit had been instituted against appellant to recover an alleged indebtedness owed under the terms of a note and suretyship agreement. After the pleadings had been closed, the case was scheduled for pretrial conciliation.

[ 328 Pa. Super. Page 353]

Neither appellant nor his counsel attended the pretrial conciliation conference which was held before a judge of the court of common pleas. Prior to the action being listed for the next trial list, neither party had made a formal demand for a trial by jury.

On March 10, 1982, the case was regularly called for trial. The Calendar Control Judge, noting that neither party had demanded a jury trial, assigned the case for disposition on a non-jury basis, even though the pretrial conciliation judge had previously entered a pro forma order listing the case on the jury trial list when the case had not settled. Counsel for appellant asserted a claim of a right to trial by jury both to the Calendar Control Judge and the judge to whom the case was assigned for disposition. When this claim was rejected, appellant, through counsel, noted his exception to the court's ruling.*fn1 Counsel then withdrew from the trial courtroom.

The case proceeded and a verdict was entered against appellant in the amount of $234,940.68. Upon receiving the verdict, appellant through counsel filed his exceptions. See Pa.R.C.P. 1038(d). In due course, these exceptions were scheduled for argument before the common pleas court en banc.

Post-trial proceedings before the court en banc in the Court of Common Pleas of Allegheny County are controlled by Local Rule 249(c)(3). In accordance with that local rule, argument lists before the court en banc are printed in the daily edition of the Pittsburgh Legal Journal at least seventeen (17) days before the date scheduled for argument, all matters to be presented to the court en banc which have been filed ...


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