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STRAFF ET AL. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY (09/23/74)

decided: September 23, 1974.

STRAFF ET AL., APPELLANTS,
v.
NATIONWIDE MUTUAL FIRE INSURANCE COMPANY



Appeal from order of Court of Common Pleas of Montgomery County, No. 71-8423, in case of Paul Straff and Helen Straff v. Nationwide Mutual Fire Insurance Company.

COUNSEL

Herbert D. Rossman, with him Gregory J. Dean, for appellants.

William H. Bradbury, III, with him Charles A. Kerlavage, and Wright, Spencer, Manning and Sagendorph, for appellee.

Watkins, P. J., Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. (Jacobs, J., absent). Opinion by Price, J. Jacobs, J., took no part in the consideration or decision of this case. Spaeth, J., concurs in the result. Dissenting Opinion by Hoffman, J. Cercone, J., joins in this dissenting opinion.

Author: Price

[ 230 Pa. Super. Page 404]

We are here presented with the question of whether appellants' failure to comply with a local rule of court pertaining to the filing of a Motion for a New Trial constitutes an abandonment of the motion. The lower court held that there was an abandonment and granted a motion to quash appellants' post-trial motions. We agree and, therefore, will affirm.

Appellants initiated this cause of action claiming $93,500.00 loss by reason of a fire which destroyed their home on December 1, 1970. Appellee had denied the claim and defended this action, based upon its claim that the fire insurance policy was void by reason of a

[ 230 Pa. Super. Page 405]

    violation of the conditions of the policy, and, specifically, that the fire was set directly by appellants or at their instigation and under their direction.

The jury rendered a verdict in favor of appellee on November 14, 1972. Appellants filed a Motion for a New Trial on December 1, 1972. Montgomery County Civil Rule 252 provides: ". . . counsel filing (motions for new trial) shall forthwith send copies in triplicate thereof to the trial judge. The duplicate copies shall immediately thereafter be filed with the official court stenographer and with the court administrator. . . ." Appellants acknowledge that they did not comply with the mandate of this rule, and that they took no further affirmative action on the record until, in response to appellee's Motion to Quash Post Trial Motions filed March 26, 1973, on May 30, 1973, they filed an Answer to the Motion to Quash setting forth matters which they contend entitles them to be permitted equitably to move forward with their Motion for a New Trial. Appellants contend that their failure to comply with the local rule of court should be excused because of difficulty encountered in raising sufficient funds to further retain counsel and pay costs and the reluctance of their counsel to incur the costs of appeal without a firm commitment from them. These costs and fee arrangements were further complicated because Montgomery County counsel were not the original trial attorneys, but were only later engaged to handle the appeal. Agreement on an acceptable forwarding fee arrangement also contributed to the delay.

This was very properly covered in the opinion of President Judge Groshens of the Montgomery County Court of Common Pleas:

"These financial and practical problems may explain but they do not excuse plaintiffs' noncompliance with Rule 252. Motions and rules play an important part in modern ...


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