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ART MCFARLANE T/A ART MCFARLANE ADVERTISING v. EUGENE HICKMAN AND GENE HICKMAN CAMPAIGN COMMITTEE. APPEAL EUGENE HICKMAN (05/10/85)

filed: May 10, 1985.

ART MCFARLANE T/A ART MCFARLANE ADVERTISING
v.
EUGENE HICKMAN AND GENE HICKMAN CAMPAIGN COMMITTEE. APPEAL OF EUGENE HICKMAN



Appeal from the Order entered March 22, 1983 in the Court of Common Pleas of Lancaster County, Civil Division, at No. 232 Oct. Term 1980.

COUNSEL

Louis J. Fanti, Coatesville, for appellant.

James H. Thomas, Lancaster, for appellee.

McEwen, Olszewski, and Hoffman, JJ.

Author: Hoffman

[ 342 Pa. Super. Page 242]

This is an appeal from the March 22, 1983 order entering final judgment in appellee's favor in the amount of $1,324.35. We affirm.

On October 27, 1980, appellee Art McFarlane, t/a Art McFarlane Advertising, filed a complaint in assumpsit against appellant Eugene Hickman and the Gene Hickman Campaign Committee seeking to recover $1,480 allegedly due for services rendered in connection with appellant's political campaign for election to the Pennsylvania Senate. Robert L. Beggs, Esquire, filed a praecipe to enter his appearance on behalf of appellant on November 14, 1980, and subsequently filed preliminary objections, an answer, and a counterclaim. A request for arbitration was filed,

[ 342 Pa. Super. Page 243]

    and on August 12, 1982, an arbitration award was filed in appellee's favor in the sum of $940 without interest and less the balance in appellee's checking account. On September 13, appellant, proceeding pro se, filed an appeal from this arbitration award and demanded a jury trial. On the scheduled trial date of February 22, 1983, appellant failed to appear in court, whereupon the lower court determined that proper notice of the trial had been sent to appellant and asked appellee whether he wanted to proceed before a jury or before the court alone. Appellee expressed his desire to proceed without a jury. The court heard the case ex parte and entered a verdict in appellee's favor in the sum of $1,324.35. Appellant subsequently filed exceptions and motions. In an order dated March 22, 1983, the lower court dismissed the exceptions and post-trial motions, and directed that final judgment be entered against appellant in the amount of $1,324.35. Appellant, represented by Louis J. Fanti, Esquire, then filed the instant appeal.

Appellant first alleges that the lower court (1) failed to give him adequate notice of the trial date, thus resulting in his nonappearance, and (2) erred in proceeding to hear the case without a jury despite his demand for a jury trial. The record reveals the following facts: Appellant filed the notice of appeal from the arbitration award pro se and listed his address on this notice as 8 Betsy Lane, Thorndale, Pa. 19372. Notice of the December 20, 1982 order certifying appellant's case as ready for trial and placed on the trial list for the month of February, 1983, was personally given to appellant at the listed address and also given to appellant's former counsel Beggs. (N.T. February 22, 1983 at 7-8). On February 7, 1983, a copy of the civil trial list was mailed to appellant at the Betsy Lane address and was not returned to the Court Administration office as not deliverable. (Id. at 9). This list contained a trial counsel index listing all attorneys or any parties proceeding pro se and a further detailed listing of all civil trials starting on February 22, 1983. Appellant's name was listed on the trial counsel index, and his trial (and its estimated length of time) was

[ 342 Pa. Super. Page 244]

    listed on the following pages as the first case to be tried in Courtroom # 4. (Id. at 10-11). Prior to the February 7 mailing, the court administrative assistant tried unsuccessfully to obtain appellant's telephone number from the telephone company and his file from the Prothonotary's Office. (Id. at 9).

On appeal, appellant does not dispute that he received these mailings. He claims, however, that the trial index, titled "Trial Term Beginning February 22, 1983," was not understandable, that he had a listed telephone number, and that the court should have contacted his previous counsel of record (i.e., Beggs) in order to get his telephone number.*fn1 We disagree. It was appellant's decision to proceed pro se, even though he had ample time after the mailing of the civil trial list to retain counsel. See 42 Pa.C.S.A. ยง 2501(a) (in civil case, litigant has the right to be heard by himself). We think that the trial index was clear in informing counsel and pro se parties that the listed trials would begin on February 22, 1983. However, if appellant was confused by the trial index, he certainly could have contacted the court or prior counsel for clarification, especially when his trial appeared imminent. Cf. Commonwealth, Dept. of Transportation, Bureau of ...


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