Triangle Pacific Philadelphia Corp. v. Trident Enterprises, Inc.

OPINION OF THE COURT

ROBERTS, Justice.

At issue on this appeal is whether the Court of Common Pleas of Philadelphia abused its discretion in ordering an ex parte trial. The Superior Court held that the ex parte trial was improper under the principles established by this Court’s decision in Budget Laundry Co. v. Munter, 450 Pa. 13, 298 A.2d 55 (1972). We share the Superior Court’s view and, hence, affirm.¹

I

Appellant Triangle Pacific Philadelphia Corp. and appellee Trident Enterprises, Inc., were parties to a contract, executed in May of 1971, by which appellant agreed to supply appellee with lumber and materials at specified prices. In April of 1972, appellant filed a complaint in assumpsit alleging that it had sold and delivered goods to appellee pursuant to the contract, and that appellee had failed to pay for them. Appellant sought a judgment of $4,171.25, plus interest from the date the account had become due. The complaint was signed by Gilbert Newman, Esq., a member of a large Philadelphia law firm representing appellant.

Appellee is represented by M. Patricia Harkins, Esq., a sole practitioner whose offices were located in Philadelphia at the tir 3 the complaint was filed. In an answer to the complaint, appellee denied that it had received all of the goods allegedly sold, and claimed that the prices actually charged and appellant’s alleged schedule of prices varied. Appellee also filed a counterclaim in which it alleged that appellant’s claimed failure to deliver materials and related defaults had caused appellee to expend $5,318.44, nearly $1,150 more than the amount of the judgment which appellant sought. Still represented by Gilbert Newman, Esq., appellant denied the allegations contained in appellee’s counterclaim.

In June of 1972, appellant served upon appellee two sets of interrogatories which were prepared by Newman. The matter then proceeded to arbitration, with both sides represented by their original counsel. In March, 1973, a panel found in favor of appellant, in the full amount which appellant had claimed. Appellee appealed to the Court of Common Pleas of Philadelphia.

Some time after appellee had filed its appeal, counsel for appellee moved her law office from Philadelphia to Montgomery County and representation of appellant changed hands within the same Philadelphia law firm, from Newman to Steven Berkowitz, Esq. The record in no respect indicates that this change of representation was made known to counsel for appellee.

In December, 1975, and again early in January, 1976, the appeal was noted in The Legal Intelligencer, the official newspaper for the publication of notices of the court of common pleas. The December publication indicated that appellee’s appeal, along with other appeals from arbitration, would be assigned for trial starting January 5, 1976. The January publication indicated that appellee’s appeal was assigned for trial on January 16,1976, before Judge McDevitt. It is agreed that counsel for appellee did not subscribe to the Intelligencer.

Berkowitz, new counsel for appellant, did not contact the office of counsel for appellee until the week preceding the scheduled trial date, when he phoned several times. There is no indication on the record that Berkowitz explained that he had replaced appellant’s previous counsel Newman. Berkowitz’s calls were not returned.²

On January 13,1976, Berkowitz delivered a brief to Judge McDevitt and mailed a copy to counsel for appellee. On January 14, upon receipt of appellant’s brief, counsel for appellee immediately wrote Berkowitz to advise him that she would be in trial in Montgomery County on the 16th. The letter went on to state:

“If you can arrange with Judge McDevitt to reschedule this for a date certain, I shall be most grateful. The main witness for the defense in this matter is a former superintendent of the Defendant Corporation who is now employed out of state and it will be necessary for me to secure his appearance, a task which might require several weeks notice to him.”

On January 16, the scheduled date of trial, counsel for appellee phoned Judge McDevitt’s chambers. Although the record indicates that the court continued the matter until January 19, there is nothing to indicate that the court directly informed counsel for appellee of the continuance. Indeed, an affidavit of counsel for appellant states that the court assigned to him the task of advising counsel for appellee of the new trial date.³

On January 19, counsel for appellant appeared before Judge McDevitt ready to proceed in the absence of appellee or its counsel. Counsel for appellant stated to the court:

“I have, upon receiving notice of the pendency of this jury trial, attempted on approximately a dozen occasions in the past week or so to contact both counsel for the defendant [(appellee)] and the defendant itself.

I have left messages with the individuals who answered the phone calls which I placed and each time asked that the phone calls be returned. Not one of them has been returned.

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

The only response I have received is a phone call from the attorney for the Defendant’s secretary, who conveyed the request that a new date be set, with no specific number of days and no reason advanced for the request.

There was a letter sent to me of Friday, of which I have sent a copy to Your Honor, from Ms. Harkins, and she indicated that they would need a period of at least several weeks to locate a witness who is in another state.

Based on these circumstances, Your Honor, and upon the fact that this is a simple book account case, if I can call it that — goods were delivered and not paid for — I must request that this case go forward this morning.

This is the second occasion which we have [been] present and prepared to go to trial and we have caused the Plaintiff to incur significant expenses in having the two witnesses who were present on Friday and who are present here today available for both days.”⁴

Without any indication that counsel for appellee had received notice that trial “would be listed today at 10:00 a. m.,” the court ordered the case to proceed to trial ex parte. The court stated:

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

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

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

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

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

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

She said she was engaged in Montgomery County. We are not accepting engagement slips from other counties.

Actually, I don’t have an engagement slip from her. I have no word from her at all.

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

Again, I repeat, we have no busy slip.

I told Mr. Berkowitz last week, I guess before Friday, when this question of a continuance first came up, that Ms. Harkins must follow the regulations or the case will go on trial. So, the case is now going to trial.”⁵

The jury returned a verdict of $4,916.01 in favor of appellant, the sum of the arbitrators’ award plus interest. The jury did not consider appellee’s counterclaim.

Appellee filed written “Exceptions To Verdict” advising the court that, based on conversations with the court’s secretary, counsel for appellee had believed that an appropriate continuance would be entered. Without taking evidence, the court denied appellee relief. In its accompanying opinion, the trial court sought to justify the ex parte trial on the ground that no “satisfactory excuse” within the meaning of Pa.R.Civ.Proc. 218 had been offered for the absence of counsel for appellee. Even though the letter of counsel for appellee merely pointed out the difficulty she might have in obtaining the attendance of appellee’s “main witness,” and requested only a “date certain,” the court expressed its belief that counsel for appellee had sought a continuance of “several weeks.”

On appeal, the Superior Court reversed. 264 Pa.Super. 76, 399 A.2d 131 (1978). This Court granted allowance of appeal.

II

From this record emerge two critical facts overlooked by the trial court. First, although the trial court had committed the task of advising counsel for appellee of the new trial date of January 19 to counsel for appellant, there was nothing before the trial court on the 19th, when it authorized the ex parte trial, establishing that counsel for appellee was aware of the new trial date. Counsel for appellant advised the court that he had written to counsel for appellee on Friday, the 16th, but did not confirm receipt of the letter by counsel for appellee. As a result, the court permitted trial to proceed ex parte at a time when counsel for appellee was unaware that the matter would be considered.

Second, there is nothing to indicate that counsel for appellee sought any unreasonable relief from the pending trial date. In her correspondence with counsel for appellant and with the court, counsel for appellee did allude to the possibility that it might take “several weeks” for her to obtain the presence of appellee’s “main witness.” However, nothing in her correspondence suggested that she sought a continuance that would assure the availability of the witness. To the contrary, counsel for appellee requested a “date certain.” Thus it would appear that the immediate concern of counsel for appellee was to avoid any conflict with her commitment to appear in the Montgomery County proceedings on the originally scheduled trial date.

Consideration of these critical facts requires the conclusion that the trial court failed to adhere to the principles articulated in Budget Laundry Co. v. Munter, supra. In Budget Laundry, the defendants were represented by one member of a two-member law firm. When the case was ready for jury selection, the calendar judge was advised that counsel was then in trial before another judge of the same court and scheduled to appear thereafter in a federal district court. The court had been previously informed that only the one member of the firm could try the case. However, the court directed jury selection to commence in counsel’s absence. On the following day, when presentation of evidence was to begin, counsel for the defendants appeared, seeking a continuance. Counsel had completed the trial before another judge of the court of common pleas, and his appearance in federal district court was not expected to last beyond the expiration of the jury trial term, or to conflict with the schedule of counsel for plaintiff. Nonetheless, the court directed an ex parte trial, which resulted in a verdict and judgment in favor of plaintiff.

This Court recognized “the extreme problems created . . . by calendar congestion and the attendant delays in the disposition of litigation. It is only by virtue of the adoption of strict calendar control that courts throughout the Commonwealth have been successful in coming to grips with this problem.” 450 Pa. at 17, 298 A.2d at 56. However, the judgment was unanimously reversed. In concluding that the trial court abused its discretion, this Court stressed the importance of the “cooperative policy” between the trial court and the federal district court:

“[T]he two courts have informally arranged matters so that busy trial counsel are able to alternate between the two courts where there are conflicts. . . . Although such an arrangement cannot possibly work to perfection, it must surely be of great assistance to both courts, to the lawyers involved and to the litigants.”

The Court went on to “approve of such arrangements and urge their continuance.” 450 Pa. at 21, 298 A.2d at 58.

Manifestly lacking here were the requisite flexibility and “cooperative policy” in the trial court’s administration of its docket. Counsel for appellee was validly pursuing a matter in Montgomery County when she learned of the pending trial in the present matter. As in Budget Laundry, counsel simply sought reasonable relief from the conflicting schedule. As a sole practitioner, she was in the same position as counsel in Budget Laundry, whose partner was unfamiliar with the matter to be tried and unable to assume responsibility for the litigation.

Appellant emphasizes the failure of counsel for appellee to make herself aware of the originally-scheduled trial date of January 16, as advertised in the Legal Intelligencer, as weli as her failure to return the phone calls of counsel for appellant during the week preceding the January 16 trial date. This emphasis overlooks the fact that once counsel for appellee became aware of the January 16 trial date, she made her conflict known both to counsel for appellant and to the court in sufficient time to permit the court to consider and act upon the request for relief. Compare Dublin Sportswear v. Charlett, 485 Pa. 633, 403 A.2d 568 (1979).

More important, appellant’s emphasis is misplaced. The proper focus is not upon what actions might have been appropriately taken by the trial court on January 16, when the court chose to grant relief. Rather, the focus must be upon the reasonableness of the court’s action on January 19, when it ordered that the matter proceed to trial ex parte. On a record which fails to establish that counsel for appellant fulfilled his obligation, as directed by the trial court on January 16, to inform counsel for appellee of the January 19 trial date, it was improper for the trial court to proceed with trial on January 19 in the absence of counsel for appellee.

Order of the Superior Court affirmed.

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

1 . This case was reassigned to this writer on June 30, 1981.

2 . In a “Supplemental Reproduced Record,” made a part of its brief filed with the Superior Court, appellant Triangle includes an affidavit of Steven Berkowitz, its counsel, sworn to and subscribed before a notary public on January 24, 1977, more than one year after the ex parte trial. The affidavit states:

“I attempted to contact Defendant’s counsel during the week of January 12, 1976, making at least four telephone calls to counsel for Defendant, none of which were returned. In most of these calls, I indicated I was calling in reference to the upcoming jury trial between Triangle Pacific Philadelphia Corp. and Trident Enterprises Incorporated, and in the telephone calls I made towards the end of the week, I emphasized as strongly as I could the proximity of the trial date to the secretary taking the calls for counsel for the Defendant.”

This supplemental record fails to disclose that counsel for appellant explained that he had replaced appellant’s previous counsel. Moreover, it is undisputed by the “end of the week,” counsel for appellee had already taken measures to seek relief from the scheduled trial date of January 16. See infra text.

3 . The affidavit, also contained in the Supplemental Reproduced Record filed with the Superior Court, see supra note 2, states:

“At 10:00 A.M. on Friday, January 16, 1976, I appeared before the Honorable John J. McDevitt, III, prepared for trial.... Judge McDevitt ruled that the case would go forward on Monday, and asked me to so inform counsel for the Defendant.”

The sole indication of an effort by counsel for appellant to “inform” counsel for appellee of the ruling of the court is the statement of counsel for appellant to the court on Monday, January 19, that he had notified opposing counsel of the ruling by letter. There is no indication that the letter was timely received by counsel for appellee. See infra text.

4 . Record at 24a-25a.

5 . Record at 25a-27a.