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ANDREW P. RODNEY AND ANNA RODNEY v. LARRY J. WISE AND LIQUID CARBONIC CORPORATION (08/05/85)

submitted: August 5, 1985.

ANDREW P. RODNEY AND ANNA RODNEY, HIS WIFE, APPELLANTS,
v.
LARRY J. WISE AND LIQUID CARBONIC CORPORATION, APPELLEES



Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 81-08662.

COUNSEL

Raymond Radakovich, Pittsburgh, for appellants.

Louis Anstandig, Pittsburgh, for appellees.

Wieand, Popovich and Lipez, JJ.

Author: Wieand

[ 347 Pa. Super. Page 539]

The issue in this appeal is the validity of a waiver of trial by jury entered in a civil action in order to obtain a delay in the commencement of trial. The trial court held that the waiver was valid and denied a request to withdraw it immediately prior to commencement of a non-jury trial. We find no error in the trial court's ruling and affirm the judgment entered on the verdict of the court.

On August 20, 1979, a vehicle owned by Liquid Carbonic Corporation (Liquid Carbonic) and driven by Larry J. Wise, one of its employees, was involved in a collision with an automobile operated by Andrew P. Rodney. Rodney and his wife, Anna, brought a trespass action against both Wise and Liquid Carbonic to recover damages for injuries sustained by the husband-plaintiff as a result of the accident. The trespass action was heard by a board of arbitrators, which entered an award in favor of the defendants, Wise and Liquid Carbonic. The Rodneys filed a timely appeal and requested trial by jury in the Court of Common Pleas of Allegheny County.

The case was scheduled for trial on Monday, March 12, 1984. On Friday, March 9, 1984, the Rodneys' attorney moved for a continuance because of a scheduling conflict. The motion was granted by the calendar control judge who rescheduled the case for April 4, 1984. In the order granting the continuance appeared the judge's handwritten notation that the case was "to [be] heard non-jury upon the consent of all parties." The Rodneys subsequently changed their minds, and their lawyer informed opposing counsel that they again desired a jury trial. In an effort to confirm the non-jury status of the impending trial, counsel for the appellees requested that the Rodneys sign a written agreement to proceed non-jury. The Rodneys refused. Thereafter, Wise and Liquid Carbonic filed a motion to compel the Rodneys to elect between a jury and non-jury trial. The

[ 347 Pa. Super. Page 540]

    object of this motion allegedly was to insure that the Rodneys would not elect at the time of trial to defer the case to a future jury trial list. This was necessary because of the inconvenience and expense inherent in appellees' preparation for trial, involving, as it did, the production of out-of-state witnesses. The motion was denied by the calendar control judge in an order dated March 28, 1984. The order neither referred to nor purported to affect the prior order directing the Rodneys to proceed non-jury; and the Rodneys themselves made no formal attempt to modify or withdraw the order directing a non-jury trial.

Prior to commencement of trial on April 4, 1984, counsel for the Rodneys informed the trial judge that Rodney had changed his mind and now wished to withdraw his consent to a non-jury trial. Rodney's request was denied, and the case was thereupon tried before the court sitting without a jury. After hearing all of the evidence, the judge entered a verdict in favor of Wise and Liquid Carbonic. Exceptions*fn1 were filed which alleged, inter alia, that appellants had been deprived of their right to trial by jury. The trial court dismissed the exceptions and directed that judgment be entered on the verdict. This appeal followed.

Section 25 of the Schedule to Article V of the Pennsylvania Constitution provides, inter alia, that " [u]ntil otherwise provided by law, the parties, by agreement filed, may in any civil case dispense with trial by jury . . . ." (Emphasis added). The Rodneys argue that this section required, at least by implication, a written agreement waiving the right to jury trial. Because their consent to proceed non-jury was not reduced to writing, they argue, it was not an effective waiver. Appellants' argument, however, ignores the fact that this constitutional provision, as allowed by its specific terms, was suspended by a contrary rule of ...


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