*1 434 A.2d CORP., Appellant, PHILADELPHIA PACIFIC TRIANGLE ENTERPRISES, INCORPORATED. TRIDENT Pennsylvania. Supreme Court 27, 1981. Argued April Sept. Decided *2 Berkowitz, Philadelphia, appellant. H. Steven Hill, Harkins, for appellee. M. Layfayette Patricia FLAHERTY, ROBERTS, NIX, LARSEN, Before WILKINSON, JJ. and KAUFFMAN THE OF COURT OPINION ROBERTS, Justice. whether the of Common

At on this is Court appeal issue an ex ordering its discretion in Pleas of abused Philadelphia ex parte held that the parte Superior trial. The Court established this Court’s by under the principles was improper 13, Munter, Laundry Co. Budget decision in and, We Court’s view (1972). A.2d 55 share hence, affirm.1 Philadelphia Corp. appellee Pacific Triangle

Appellant contract, Inc., were to a exe- parties Trident Enterprises, supply which appellant agreed cuted in ofMay by specified prices. and materials at with lumber appellee assumpsit filed a complaint April appellant goods appellee had sold and delivered alleging contract, had failed to pay and that pursuant to the $4,171.25, judgment plus a for them. Appellant had become due. date the account interest from the Newman, a member Esq., Gilbert signed by was complaint appellant. law firm Philadelphia representing of a large reassigned this writer on June 1. This case was Harkins, Esq., M. Patricia by represented Appellee in Philadelphia located offices were whose practitioner sole at the tir the complaint filed. In an answer to all of the it had received denied that complaint, appellee actually sold, prices claimed that goods allegedly varied. prices schedule of alleged appellant’s charged alleged in which it counterclaim also filed a Appellee and related materials failure to deliver claimed appellant’s $5,318.44, nearly to expend defaults had caused which appel- $1,150 judgment the amount more than Newman, Esq., Gilbert sought. represented lant Still coun- appellee’s contained allegations denied the appellant terclaim. two sets upon appellee served

In June of Newman. The prepared which were interrogatories *3 arbitration, repre- both sides to with matter then proceeded March, 1973, panel In a counsel. original sented their appel- which in the full amount appellant, found in favor of of Com- to the Court Appellee appealed lant had claimed. mon Philadelphia. Pleas of counsel appeal, had filed its appellee time after

Some to Mont- Philadelphia from moved her law office appellee changed gomery County representation firm, Newman law from Philadelphia hands within the same in no indi- Berkowitz, respect The record Esq. to Steven was made known representation cates that change appellee. counsel for 1976, the December, 1975, early January, again Legal Intelligencer, in The the official was

appeal noted the court of of notices of publication for the newspaper indicated that The December publication common pleas. arbitration, appeals with other appellee’s along appeal, 5, 1976. The January for trial starting would be assigned appeal appellee’s indicated that publication January McDev- 16,1976, before Judge assigned January for trial on did not subscribe appellee counsel for itt. It that agreed to the Intelligencer.

Berkowitz, new did not contact the appellant, until preceding office of counsel for the week appellee date, he times. There phoned scheduled trial several is no on record that Berkowitz that explained indication he had Newman. Ber- replaced appellant’s previous counsel were returned.2 kowitz’s calls 13,1976, Berkowitz a brief to January Judge On delivered to counsel for On copy appellee. McDevitt mailed a brief, counsel for appellant’s January receipt him to advise appellee wrote Berkowitz immediately Montgomery be in trial in on 16th. County she would on The letter went to state: can to reschedule arrange Judge McDevitt you

“If The certain, a date I shall be main grateful. this for most superin- in this matter is a former witness for defense Corporation of the Defendant who is now em- tendent be me out of and it will ployed necessary state which secure his a task several appearance, might require weeks notice to him.” trial, counsel for

On the scheduled date of January Although phoned McDevitt’s chambers. Judge the matter until record indicates that the court continued the court nothing there is indicate informed of the continuance. directly Record,” part “Supplemental Reproduced of its made a brief In a Court, appellant Triangle includes an affidavit filed with the counsel, Berkowitz, of Steven sworn to and subscribed before its 24, 1977, year notary public after more than one the ex parte trial. affidavit states: *4 attempted during the week “I Defendant’s counsel of contact 1976, January making telephone to counsel at least four calls Defendant, were In most these for none of which returned. calls, calling upcoming jury I to the I indicated was reference Philadelphia Triangle Corp. and Trident Enter- trial between Pacific telephone Incorporated, prises I towards the and in the calls made week, proximity emphasized strongly I as I could the end of the as secretary taking for the of the trial date to the calls for counsel Defendant.” appellant supplemental counsel for This record fails disclose that replaced appellant’s previous explained counsel. More- that he had week,” over, appellee undisputed by of the counsel for it is the “end already scheduled taken to seek relief from the had measures date of 16. See infra text. that states appellant for of counsel Indeed, an affidavit for counsel advising the task of to him assigned new trial date.3 of the before appeared for appellant counsel On of appellee in the absence to proceed ready McDevitt Judge to the court: stated appellant for its counsel. Counsel or this jury of the pendency notice have, receiving “I in the a dozen occasions trial, approximately on attempted the defendant counsel for contact both or so to past week itself. defendant and the [(appellee)] answered individuals who with the messages I have left asked that and each time I placed calls which phone been of them has Not one be returned. calls phone returned. Harkins, who is counsel Ms. Patricia

I have notified by Monday letter on by Defendant record for the coming up was the matter that Friday letter this past and, Friday, last coming up it was trial, first that jury 10:00 listed at today it would be then, that subsequently, a. m. from call phone is a I have received

The only response who conveyed secretary, Defendant’s for the attorney set, no specific new date be that a request the request. advanced for no reason days number I have of which Friday, sent to me of letter There was a Harkins, and she Honor, to Your copy sent a of at least several period need a would they indicated that state. who is in another witness to locate a weeks Reproduced affidavit, Supplemental Rec- in the also contained Court, supra states: see note ord filed with the 16, 1976, appeared Friday, January before the “At 10:00 A.M. on McDevitt, III, Judge prepared for trial.... Honorable John J. Monday, go would forward the case McDevitt ruled for the Defendant.” to so inform counsel asked me by appellant “inform” counsel for of an effort The sole indication ruling is the statement of the court of the counsel Monday, January he to the court on counsel ruling is no letter. There opposing notified appellee. timely received indication that the letter See infra text. *5 circumstances, Honor, Based on these Your and case, book I can simple the fact that this account if call it were and not for—I goods paid delivered that — must this case forward this request go morning.

This is the which we have present second occasion [been] trial and we have prepared go to to caused Plaintiff to incur the two significant expenses having witnesses who were on and who are present Friday here available for both present today days.”4 indication that counsel for had re- any Without ceived notice that trial “would be listed at 10:00 a. today m.,” proceed parte. the court ordered the case to to trial ex The court stated:

“I can in the course of for the record we are say operating a five week in excess of dispose something schedule 3,000 arbitration appeals.

A has built and there has been a drive to backlog up make a substantial dent in the number.

The list of cases to on these lists was first appear daily case, course, published ago. about six weeks This on it. list,

It was on a list number one. That daily Friday, last believe, was first a week in advance of that published date, or either a week or two weeks in advance of that date.

I have heard from Ms. Harkins. nothing directly She here; hasn’t she application made an has not written Court; she has failed to follow the instructions which have published repeatedly respect been to cases list, on the of counsel and the requirements part procedure for a continuance. obtaining

A continuance can be obtained an application Judge, Judge Greenberg Calendar at this point. Harkins or should be aware of that. is aware

She said she was We engaged Montgomery County. are not accepting engagement from other counties. slips 4. Record at 24a-25a. *6 I don’t have an

Actually, engagement slip from her. I have no word from her at all.

The other counties are not our accepting So, busy slips. with a program like this in front of us we’re not accepting theirs, either.

Again, I repeat, we have no busy slip. week, told Mr. Berkowitz last I guess before Friday, when this question a continuance first came up, that Ms. Harkins must follow regulations the or the will case on go So, trial. the case is now going to trial.”5 $4,916.01 returned a jury verdict of in favor of appellant, the sum of the arbitrators’ plus award interest. The jury did not consider appellee’s counterclaim.

Appellee filed written To “Exceptions Verdict” advising the that, based on conversations with the court’s secretary, counsel for had appellee believed that an appro- priate continuance would be entered. Without evi- taking dence, the court denied appellee relief. In its accompanying opinion, the trial court sought the ex justify parte trial on the ground that no excuse” “satisfactory within the meaning Pa.R.Civ.Proc. had been offered for the absence of counsel for Even appellee. though letter of counsel for appellee out merely pointed the difficulty she have in might obtaining the attendance of appellee’s witness,” “main requested certain,” a “date the court expressed its belief that for counsel appellee sought a continuance of “several weeks.”

On appeal, the Superior Court reversed. 264 Pa.Super. 76, 399 A.2d (1978). This Court granted ap- allowance of peal.

II From this record emerge two critical facts overlooked by the trial First, court. although the trial court had commit- ted the task of advising counsel appellee of the new trial date of 19 to counsel for appellant, there was 5. Record at 25a-27a. 19th, on

nothing before the trial court it authoriz- trial, establishing ed the ex that counsel for parte appellee the new trial date. Counsel for appellant aware of had written to counsel appellee advised the court he 16th, letter receipt but did not confirm Friday, result, the court appellee. counsel for As permitted time proceed trial to ex at a when counsel for parte was unaware that matter would be considered. Second, appel- that counsel for nothing there indicate lee relief pending unreasonable any correspondence date. In her court, with the allude to the possibil- did take “several weeks” for her obtain ity might *7 However, in nothing “main witness.” presence appellee’s her that she a continuance correspondence suggested the To the availability that assure of the witness. would a “date certain.” contrary, appellee requested counsel Thus it the concern appear would that immediate to any was avoid conflict with her commitment the appear in the Montgomery County proceedings trial date. originally scheduled Consideration of these critical facts the conclu- requires sion that trial failed to to the principles the court adhere Munter, In Laundry in Co. v. Budget supra. articulated the one Budget Laundry, represented by defendants were member law firm. When case was of a two-member the selection, calendar was that ready judge the advised jury in trial before another of the same judge was then court and thereafter in a federal district appear scheduled the court. The informed that previously court been However, the case. the try one member of the firm could court to commence in counsel’s ab- jury directed selection sence. On the of evidence following day, presentation seeking was to counsel for the defendants appeared, begin, completed Counsel had the trial before anoth- continuance. er his in judge pleas, of the court of common and appearance federal court to last the expected beyond district was term, the or to conflict with expiration jury Nonetheless, of counsel for plaintiff. schedule and trial, which resulted in a verdict an ex parte directed plaintiff. in favor of judgment . . . problems extreme created “the recognized

This Court in the the attendant delays congestion calendar adoption It is virtue of the only by disposition litigation. that courts the Com- throughout of strict calendar control in coming grips monwealth have been successful However, the 17, 298 A.2d at 56. 450 Pa. at problem.” concluding reversed. unanimously was judgment discretion, this Court stressed the trial court abused its the trial between importance “cooperative policy” district court: court and federal so matters informally arranged two courts have “[T]he are able to alternate between trial counsel busy . . . such Although two courts where there are conflicts. an cannot work to arrangement possibly perfection, courts, to the must be of assistance to both surely great litigants.” involved and to the lawyers of such “approve arrangements The Court went on to Pa. at A.2d at 58. urge their continuance.” 450 here were the Manifestly lacking requisite flexibility court’s of its the trial administration “cooperative policy” docket. a matter pursuing Counsel for validly when she learned of Montgomery County pending *8 trial in the matter. As in counsel present Budget Laundry, sched- conflicting reasonable relief from the simply as ule. As a sole she was in the same practitioner, position partner counsel in whose was unfamiliar Budget Laundry, with the matter to be tried and unable to assume responsi- for the bility litigation. failure of to emphasizes appellee the

Appellant make herself aware of the trial date originally-scheduled in the as weli Legal Intelligencer, as advertised January as her failure to return the calls of counsel phone 16 trial the week appellant during preceding January once counsel for emphasis date. This overlooks the fact that date, she became aware of the 16 trial January to to known both made her conflict to consider time to the court permit the court in sufficient for relief. Dublin Compare Sports- and act upon request Charlett, (1979). 403 A.2d 568 wear v. The misplaced. is appellant’s emphasis More important, what actions have been might focus is not proper upon 16, when January the trial court on taken appropriately Rather, the focus must be court chose to relief. grant court’s action on January the reasonableness of the trial ex proceed parte. the matter to when it ordered that for appel- which fails to establish that counsel On a record the trial court on lant as directed obligation, fulfilled his of the January to inform counsel for the trial court to date, proceed it was improper appellee. of counsel for trial on 19 in the absence affirmed. Order of the Court and files a concur- FLAHERTY, J., opinion in this joins ring opinion.

NIX, J., in the result. concurs LARSEN, J., dissenting opinion. files a or in the consideration O’BRIEN, J., did not participate C. decision this case. Justice,

FLAHERTY, concurring. join majority opinion. difficulty. providing us with presents great This case area, it is in a urbanized highly justice large population main- be rigorous scheduling policy indeed that a essential harsh What can to be appear tained and enforced. pay keep machinery is the we price certain cases mind, we must With this in our system justice operating. institu- to the almost inevitable be careful lest we succumb of the insti- very purpose syndrome neglecting tional the institution in and for itself. tution for the mere sake of provide justice, institution judicial purpose course, is, *9 promptly and providing justice efficiently pro- this balance purpose. Accommodating inherent in that task. vides us with a difficult case, in it is noted that the the record this

Examining . a five week operating court was “. . in the course 3,000 in arbitra- something schedule to excess dispose tion a backlog up ... A built and there appeals [had] [was] drive dent in the to make a substantial number.” a appellee, single practitioner apparently

Counsel for the and, when professional relied a upon perception courtesy made aware that a bona fide conflict of trial dates confront- her, ed appel- communicated letter counsel for the lant, date, of her difficulties with the trial both as advising in securing appear- the trial conflict and the task of ance of a located outside of Pennsylvania. witness She trial, requested counsel to seek “date certain” for the True, not an unreasonable counsel could certainly request. have, herself, court, she, petitioned appears, but as fellow cooperation opposing of her unfortunately, member of the Bar. is clear that the court was aware of the record but,

problems counsel for the in total besetting institution, disregard judicial of the very purpose institution, chose to serve is evident instead as the statements:

. .. engaged Montgomery County. She said she was We are not from other coun- accepting engagement slips ties . .. So,

The other counties are not our accepting busy slips. program accepting with a like this front of us we’re not theirs, either . . . I ....

Again, busy slip we have no repeat, week, I told Mr. Berkowitz last before guess Friday, up, of a continuance first came question or the will regulations Harkins must follow the case So, go going (Emphasis trial. the case is now to trial. Supplied.)

438 in eliminat- interested primarily the was

Obviously, judge slip” even if a justice: “busy in doing the case—not ing disre- filed, arbitrarily would have been it would have been Harkins, not Ms. Mr. Berkowitz ...” “. . . told garded; he The problems. aware of the being all the while judge the officer, was to appear, it would judicial of this only concern the it out of case so that would be of this get particular rid system. did consider the jury “trial” and the not

The case went to or the counterclaim. defense a myopic mispercep- an illustration of This case provides the of the part both on occurring, tion of too often duty, attempts and transparent counsel. Arbitrary court and expense very purpose at the court congestion reduce this Court. cannot be tolerated of the institution judicial which demonstrates experience We believe there is maintained consistent achieved and can be efficiency matter how of due process with the traditions highest —no controversy. or subject or small the amount great LARSEN, Justice, dissenting. which its two “critical facts” sets forth majority 1) nothing turns: that “there

resolution of this case 19th, the ex on the authorized before the trial court for was aware trial, that counsel parte establishing date”; “there 2) nothing the new trial unreasonable appellee sought any indicate that counsel the pending relief from trial date.” At 1168. If the record conclusions, in the join these I would in this case supported However, its first arrives at majority majority opinion. which was not conclusion after an issue considering review or raised parties; preserved appellate part an affidavit which was considering improperly and which pleas in the court of common record majori- attention. The never to this Court’s parties brought this by misapplying arrives at its second conclusion ty Munter, Budget Laundry Company Court’s decision in Accord- to the facts of this case. (1972) Pa. 298 A.2d 55 I dissent. ingly, fact,” lack of no issue of to the first “critical

With respect court, in in the trial by appellee notice was ever raised briefs filed with this Court. Since Court, or in raised, preserved it was not properly never issue was (“Issues not review. See 302(a), Rule Pa.R.A.P. appellate waived and cannot be raised lower court are raised in the v. Piper, Commonwealth appeal.”); the first time Roberts, J.). (1974) (majority opinion by A.2d 845 error is held that where a claim of “We have repeatedly *11 must review, appellate not an preserved properly Benson v. Penn Central appeal.” not consider that claim on 37, 41, 393, 395 Company, 463 Pa. 342 A.2d Transportation Roberts, cases J.) (footnote citing (1975) by (majority opinion Branham, v. 605, also Commonwealth 467 Pa. omitted). See 607-08, 766, (1976). 359 A.2d 767 courts appellate may

This has also held that Court an but rather should resolve consider issues not presented, the parties. of the issues raised by on the basis appeal 256, 482, 485, 257-58 Wiegand Wiegand, v. 461 Pa. 337 A.2d Roberts, J.). See for unanimous Court (1975) (opinion by Sloan, 570, 421, 423 n.4 n.4, 575 381 A.2d also Reed v. 475 Pa. (1977). of the issue of and consideration raising

The majority’s as an unwarranted of notice be characterized lack can not, I do there- departure precedent; and unreasoned of it. fore, in treatment majority’s concur the the Further, upon to the reliance object majority’s which was signed January, appellant’s affidavit case, for the 1977, purpose one after the trial this year Ms. Harkins had no notice conclusion that bolstering its made affidavit was the 19 trial date.1 Counsel’s upon purports at one fact which to establish least 1. That affidavit silent, namely, trial court the fact trail court record is duty notifying opposing imposed upon appellant’s party nor Since neither trial date of counsel of the new majority opinion provided this the members of has the author of the affidavit, actual- copies writer has never of counsel’s this Court with has, ly complete in the formulation of affidavit and seen the 440 Court;2 before the it brief

part appellant’s court, and it was of the record in the part never made either The party. majority never to this Court presented and relied has, nevertheless, upon out this affidavit reliance not be in this such would appeal, though even directly the affidavit parties presented if the permissible to this Court. refusing its reasons for con-

This Court has discussed filed an the contents of a document sider on appeal: with this Court initially under discussion question of our review on the scope lower court abused its discretion is whether or not the basis of the .... That issue must be resolved on court and in the record facts before the lower ... permit date the court rendered its decision. To at this late date would be addition to the record proposed a very dangerous precedent. unfair and establish grossly Distributors, Inc., 344, v. Pa. Allegheny County Kilian 409 See also Commonwealth 348-49, 185 (1962). A.2d 114-15, Young, (1974) (majori Pa. 317 A.2d Estate, England's In re Roberts, J.); ty opinion by unanimous *12 115, 122, (1964) (opinion 200 900-01 A.2d Roberts, J.). by Court for the additional reasons of this light precedent Investigat- in In re: County dissenting opinion

stated in my 1979, 1, Appeal of June Richard ing Grand Jury Drapczuk, 5, at 206-210, 433 A.2d at J., not in the 15-16, (1981) (Larsen, dissenting), join do a factual statement willingness rely upon majority’s record which neither which was not in the trial court ever submitted to Court. party dissent, quoted solely upon portions the affidavit in relied those opinion. majority routinely copies intermediate receive of trial or 2. This Court does not appeals. Superior pending appellate court briefs connection with briefs, provided if to the members of this Court Court prothonotary parties, or are available from the Court throughout paperbook kept the state. in libraries in the collections fact,” With to the second respect “critical the majority’s conclusion is incredible. The opinion shifts the majority for Ms. Harkins’ absence from responsibility Doth the trial court and opposing counsel. It assumes that appellant’s counsel never notified Ms. Harkins that he had replaced counsel, appellant’s previous and implies that counsel had an so; obligation to do it disapproves the trial court’s read- ing Ms. Harkins’ letter of 14 to coun- opposing sel; and it misquotes of appellee’s “excep- content tions,” stating that Ms. Harkins expressed, in one “excep- tion,” the belief that an appropriate continuance would be entered.4

Yet the responsibility counsel’s absence from trial and for the resulting judgment against appellee must be borne herself, Harkins and in this case counsel failed to act and failed to make a responsibly excuse for her satisfactory inability attend the trial as scheduled known to the court at the earliest possible moment.5 Ms. Harkins did not read 3. That letter stated that main witness for in this “[t]he the defense employed necessary matter ... me is now out of state and it will be appearance, might require to secure his a task which several (Emphasis however, supplied.) majority, weeks notice to him.” ignores very language opinion of the letter and concludes in its that while possibility presence might did allude to the take appellee’s “several weeks” for her to obtain the “main

witness,” nothing correspondence suggested ... in her that she availability a continuance that would assure the contrary, witness. To certain. requested counsel for a date At correctly interpreted The trial court when it this letter weeks, determined that Ms. Harkins desired a continuance of several “exception” 4. This reads: despite The Court counsel to the Court’s erred direct advice from Defendant’s secretary that Defendant’s counsel was on Montgomery County Friday, January trial in the case 1976 and that may well have been continued onto was, despite which in request fact it defense counsel’s for a certain, was, nevertheless, judgment continuance to a date tered evidence or en- *13 pursuant ato verdict rendered after trial at which no defense argument was heard. 218, governs 5. Rule present Pa.R.C.P. cases like one which one party prepared is provides: not for trial. That rule case was officially in which this Legal Intelligencer, 14, when Ms. noticed on numerous dates. On January counsel, apparently Harkins learned from who opposing proceeding no the date of and ascertaining trouble two she did just days away, that trial was accordingly, Intelligencer in the Legal follow the listed procedures Rules of Civil Procedure Rule 216 of the Pennsylvania to did not a call place a continuance. Ms. Harkins obtaining conflict, nor she telephone the trial to warn of the did scheduling him that there was a to opposing notify wrote trial, Ms. Hawkins Rather, before days two problem. counsel, copy a carbon a letter to opposing court, to obtain a continuance asking opposing that letter into the U. S. weeks, dropped then several to the until its Mail, days delivery where it remained for two hour for the commencement court after the scheduled trial, morning on the January trial. It was not until court, after the trial finally telephoned that Ms. Harkins which court continued the case until the trial conduct, she was fortu- Harkins’ course of view of Ms. Yet on trial court continuance. granted any nate that the scheduled to again begin when trial was judge the trial appear, Harkins had failed again heard directly noted the record that he had still not her. trial, ready party other if is and the one When a case is called satisfactory being ready, known to the excuse made

is not court, without trial, may may proceed be plaintiff as the case ... which constitutes This Court has defined at least one circumstance “satisfactory meaning of Rule and the man- excuse” within the to the trial court. ner in excuse must be made known which that attorney general previous of an court commitment As a rule a tribunal, requires presence if made before another which his a continuance or an extension known to the court before which “satisfactory sought, within the mean- constitute a excuse” would However, legitimacy regardless ing of Rule 218. ... delay provide it is to be which the basis for the circumstances expected court, to the the conflict should be communicated possible sought, at the earliest before which the continuance is 216(C). g. moment. See e. Pa.R.C.P. 633, 638, Charlett, Sportswear 403 A.2d Dublin added; omitted). (1979) (emphasis citations and footnote *14 Despite this mishandling matter, Harkins’ of relies Court’s in majority upon Budget this decision Laundry Munter, supra, Company justify affirming order of new Superior Court a trial. granting Budget who Laundry applies to have done parties everything possi- ble, unable, have yet remained to resolve con- scheduling flicts. In Budget Laundry, required granting Court remedy a continuance to a conflict one attorney’s schedule. That decision based the facts that counsel had informed the court con- promptly scheduling counsel, flicts and of the that the unavailability substitute requested continuance was for a period days, several did not opposing object continuance, that no result prejudice would of a granting continuance,6 The facts of this do not come clearly case within the requirements Budget Laundry, and the majori- application of ty’s that decision to this case only serves to put attorneys on notice that are no they longer bound to follow rules of procedure concerning the of civil scheduling trials.

In view of repeated counsel’s failure to appear for trial inform the trial court of scheduling conflicts in a timely fashion, I hold would court in the trial this case discretion, did abuse its and I would reverse the order of Court. January appellant’s 6. On counsel did state the record that “significant expenses” having incurred two of its present prepared witnesses in court and on both