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FAIRMONT CORPORATION v. MORT EISNER (07/12/84)

submitted: July 12, 1984.

FAIRMONT CORPORATION
v.
MORT EISNER, INDIVIDUALLY AND T/A CERTIFIED CARPET DISTRIBUTORS, APPELLANT



No. 883 Pittsburgh, 1982, Appeal from the Judgment entered July 29, 1982, in the Court of Common Pleas of Allegheny County, Civil Division, at No. 1979 of 1981 - Assumpsit.

COUNSEL

Shelley W. Elovitz, Pittsburgh, for appellant.

Samuel Avins, Pittsburgh, for appellee.

Rowley, Hester and Roberts, JJ.

Author: Roberts

[ 333 Pa. Super. Page 184]

This appeal is taken from a judgment entered against appellant in the amount of $2783.95, following the dismissal of appellant's exceptions to a non-jury verdict in the same amount. Among appellant's exceptions was his main contention on this appeal, that the court improperly permitted appellee to proceed ex parte.

Appellee commenced the present action in March of 1981 to recover the above sum, which represents the amount of allegedly "unauthorized discounts" which appellant had taken in connection with goods purchased from appellee. Through counsel, Gilbert M. Gerber, Esq., appellant filed a "Notice of Intention to Appear" which denied that the discounts taken had been unauthorized. The matter proceeded to arbitration. On October 26, 1981, a panel of arbitrators entered an award in favor of appellant. Appellee filed a notice of appeal from the award with the court of common pleas. The January 12, 1982, edition of the Pittsburgh Legal Journal listed 9:00 a.m., March 15, 1982, as the time and date for trial, before Doyle, J.

By order of our Supreme Court dated February 3, 1982, counsel for appellant was disbarred on consent, pursuant to Pa.R.D.E. 215. See The Pennsylvania Lawyer, Vol. 4, No. 3 (April 15, 1982), p. 33. Under Pa.R.D.E. 217, the disbarrment would take effect in 30 days, on March 5, 1982. See former Pa.R.D.E. 217(c), now Pa.R.D.E. 217(d). During that interim period, counsel for appellant was required to give appellant notice of the disbarrment, "advise the prompt substitution of another attorney or attorneys in place of the formerly admitted attorney," and

"In the event the client does not obtain substitute counsel before the effective date of the disbarrment, supervision, or transfer to inactive status, it shall be the responsibility of the formerly admitted attorney to move in the court or

[ 333 Pa. Super. Page 185]

    agency on which the proceeding is pending for leave to withdraw."

Id. No substitute counsel entered an appearance on appellant's behalf prior to trial, and no motion for leave to withdraw appears of record in this case.

The matter proceeded to trial ex parte before a judge sitting without a jury on March 15, 1982, the date advertised in the Pittsburgh Legal Journal. Prior to appellee's presentation of evidence, Robert W. Koehler, Esq., counsel for appellee at trial, told the court of a conversation between appellant and Samuel Avins, Esq., counsel for ...


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