*2 VOORT, SPAETH, VAN der JJ. Before BROSKY and VOORT, Judge: VAN der Appellee an in assumpsit.
This out of action arises on a for the balance due con- filed suit against appellants alleged that complaint goods tract for and services. (hereaf- Company had used Transit Construction appellants a means to defraud as as Company) ter referred to controlled the appellee. Appellee claims an answer failure to file default for Judgment by company. 9, agreement, judgment By entered on March an answer to 26,1976. filed opened April Appellants 1976, they on June in which complaint denied the including majority appellee’s allegations, wife’s in- volvement use company; company’s to de- fraud the On June filed appellee. appellee interroga- tories. answers on Appellants July filed their 1976. On a motion appellee production filed inspection requesting regarding company’s records cor- character; porate signed an appropriate order to produce requested therefor. failed Appellants records filed a appellee motion sanctions requesting a) court to: enter an adjudication appellants had admit- ted to of the several averments contained in the complaint; and, b) exclude at trial appellants proof on such issues. The lower granted requested relief and held that presumed were to have through acted the compa- *3 ny; the company was used as a device to defraud appellee, and the company had entered into a with appellee. contract
Appellants appellant’s counsel to appear failed at an arbitration hearing scheduled October 1977 and the arbitrators found for accordingly appellee. Appellants ap- pealed the findings; arbitrator’s counsel failed to before appear the lower court. The court dismissed the appeal and entered an finding appellee. order Ap- pellant’s denied; motion for a new nunc pro tunc was judgment appellee. was entered for This appeal followed.
Appellants here make arguments two for reversing the lower court:
I. The court erred in dismissing appeal from arbitration when counsel had no hearing notice and he was attached on cases of higher priority; II. The court erred in entering judgment without requiring the presentation of case. appellee’s
I. two Appellants argument. First, offer a fold they claim not they had received notice of the arbitration second, hearing, and that they contend counsel was attached on the day question matters which other under local rules had the arbitration priority appeal. over factually without arguments find is refuted prior notice claim of lack merit. Appellant’s was case called 18, 19781 when the August the record. On its crier the court discussed before lower court The counsel. record of appellant’s to locate attempts made crier had the court indicates day’s informing on June counsel telephoned appellant’s The August listed for him the case was of trial. day counsel on of efforts to locate also informed its that the trial opinion judicial The court took notice in The Legal had a week advance published date also been Intelligencer. Triangle Pacific distinguishable case is Enterprises Incorporated,
Philadelphia v. Trident Corp., Pacific In notice Pa.Super. 76, Triangle however, Intelligencer, there had also in The Legal appeared had received no Philadelphia and counsel had moved out of to trial when she received actual two days prior notice until the trial judge other informed brief. Counsel party's county that she in another engaged we remanded for In that case refused to continue case. Here, counsel had received actual a new we find that trial. date, to the trial therefore notice two months prior over controlling. Triangle Pacific is appellant’s at is established then Once actual notice file Rule Number under Local torney duty had a *4 proceedings transcript bears date 1975. the the 1. The of opinion page judge his refer to the trial in docket entries may safely presume August we that the date as 1978. believe 1978. occurred attorney case than one criminal listed more 2. “Where an has day, he shall file or cause to different for the same courtrooms busy slips case or cases are in each wherein his filed courtroom report highest priority expected the will be to to listed. Counsel busy slips assigned file has and must room for which he been assignment any conflicting A.M. 0:15 with connection priority) Priority (listed their in the order of List (1) Room case and Calendar Homicide (2) Felony Jury Room case Calendar (3) Juvenile Court courts in busy slips the which he had other cases listed for trial. did not busy Counsel file a The Court’s slip. to attempts appellant’s attorney locate were no avail. to Appellant’s claim that substitute counsel was on his to way the lower court when the entered court its order is not the record. supported by Since had actual notice of the counsel hearing, and failed to enter a there busy slip, is no need to the list priority argument discuss that appel- make lants here. Appellant’s
II. is argument second that while the court have may without properly proceeded being present, the have required plaintiff-appellee its case are to the court. We referred Rule Pennsylvania R.C.P. which reads: trial,
When a case called for if one is is party ready other is not ready, satisfactory without excuse being court, made known to the a non-suit be entered on may defendant, motion of the or the may proceed trial, as the may case be. Where the trial proceeds may or require prothonotary, authorize may any court, of attorney participate drawing jury behalf of the unready party. called,
If no party ready is trial when a case is court shall strike case from list. (Emphasis added) correct; is
Appellant’s position technically the plaintiff-ap- pellee should have its presented ex-parte case to the court. Instead, the court dismissed the and found for appeal appel- lee.
An appeal from is arbitration to be de novo.3 tried Shertona, Bell v. (1969); (4) Felony Non-Jury Room (5) Municipal Court List Room (6) Hearing Criminal Motion List and P.C.H.A. (7) Any assignment other ...” case, early authority stages In appealing this arbitrator’s However, 27, 1978, awards found in 5 P.S. § 71. effective June right 42 Pa.C.S.A. 7361 and 7362 §§ control
13 Lewis, (1967); and v. Lanigan Pa.Super. 210 Inc., A.2d Industries, 380 Lee v. Cel-Pek Pa.Super. 251 Cel-Pek, we held: In Lee v. (1976). 1243 to pro- this rule practice by The authorized [Rule 218] has been held absence ceed with trial in the defendant’s con- which has been practice a proper be reasonable and discretion. Meek judicial subject followed sistently find no Allen, Pa.Super. for the ex parte the defendant presented by authority The of counsel’s absence. dismissal of an because appeal other sanctions as the court subject defendant may the court by procedure employed see fit but may have The should approved. plaintiff below cannot be in the defendant’s ab- with the de novo trial proceeded at sence as in the rule. 251 outlined A.2d 1243 (1976). Ap dismissing appeal. court erred in lower no or prejudice suffered
pellee appellants contends were in dispute as no facts dismissing harm from A a defense. presenting and were barred from supports appellee’s position, close of the record scrutiny failure to As result of appellant’s to a certain extent. only previously imposed records the court had produce requested 4009. The court had deemed sanctions to Rule pursuant admitted and prohibited certain of appellee’s allegations However, evidence thereon. presenting from 9 of paragraphs through such pertain sanctions did been denied allegations having These complaint.4 7361(d) requires legislatively a trial de novo arbitration. Section appeals compulsory arbitration. as copy A is attached 4.6. true that written contract and correct “A” Exhibit hereto. obligations performed under the aforesaid 7. Plaintiff has all of its contract, satisfactory timely Defendants are fashion. Dollars, of Seven Thousand indebted to the in the amount thereon, “B” together in Exhibit hereto. as set forth with interest goods charges represent fair market value of 8. The plaintiff. by the services rendered made, Despite and refused defendants have failed demand payments make due. *6 still the disputed remained when case was before the trial court. The trial should have appellee’s heard case on these contentions. remaining Budget Laundry Compa-
As the
Court stated in
Supreme
Munter,
ny
v.
17,
13,
450 Pa.
Needless to this of type appeal provides maximum difficulty appellate for an court. The courts the of Com- monwealth have been striving mightily to reduce backlogs and to the of speed course all litigation. We are too created, aware of the problems extreme particularly large Commonwealth, counties of metropolitan calendar and the congestion attendant delays dispo- sition of It is litigation. only by adoption virtue of the of strict calendar control throughout courts Com- monwealth have been successful coming grips problem. We, course, this of the efforts of the support of common courts pleas solve the backlog problems. Cel-Pek, decision in Lee v. But Rule 218 our supra, control our disposition here. We vacate the reluctantly order of 18, 1978, the lower court dated judgment pursuant thereto, entered remand ex-parte plaintiff-appellee. of
Order the lower is vacated and the case is remanded for consistent with Opinion. this
BROSKY, J., a concurring files opinion.
BROSKY, concurring: Judge, I agree While with the I think it is majority, important emphasize Rule Pa.R.C.P. protects only those trial, parties present at time also those who are not present or not ready to to trial. proceed
At first reading, the rule seems to be only addressed those parties ready who are proceed. provision that may proceed a in the absence of the plaintiff defendant does to have his cause give plaintiff right and his attorney. defendant tried even the absence v. Radcliffe on the Co. Mutual Life Insurance Phoenix when Delaware, (1970). Similarly, A.2d 698 439 Pa. absent, defendant can move who is is it without a trial. one to a verdict is not right a nonsuit. The McAnlis, (1950). Mazi v. Pa. See reviewable to ex trials are parte rendered in The verdicts adequately supports evidence determine whether Allen, verdict. See Meek compliance can demand
A absent from trial defendant *7 presented evidence is that such with Rule to assure the court.
Maylan G. WARRINER A.
Priscilla LYON. County Tioga Appeal A. LYON and of Priscilla Agency. Service Children’s Pennsylvania. Superior Court 21, 1980. March Submitted Filed