Appeal from order of Court of Common Pleas of Montgomery County, No. 70-9478, in case of George A. Shegda, Inc. v. Standard Merchandising Co., Inc.
Steven M. Dranoff, with him Gary A. Krimstock, and Spivack, Dranoff & Shaw, for appellant.
Sidney E. Herold, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Concurring and Dissenting Opinion by Hoffman, J. Spaeth, J., joins in this concurring and dissenting opinion.
[ 231 Pa. Super. Page 195]
This appeal follows the dismissal of appellant's exceptions to the verdict for failure to file a timely brief with the lower court en banc, as required by a local rule of civil procedure in Montgomery County.
The facts are as follows: On January 10, 1970, the appellee, George A. Shegda, Inc., and appellant, Standard Merchandising Co., Inc., entered into a written contract under which appellee was to repair and alter appellant's industrial building in Camden, New Jersey. The contract price was $19,732. A contract for additional work to be performed by Shegda at a cost of $4,480 was entered into at a later date. At the completion of performance, appellant had paid 90% of the original contract price and none of the second contract price. Appellee thereupon instituted this action, seeking to recover the 10% due on the original contract plus $4,480 on the second contract.
Standard filed an answer and new matter, and a counterclaim in which appellant alleged that Shegda had not completed the original contract, that a substantial amount of the work Shegda had performed was done in an unworkmanlike manner, and that there had never been a second contract for additional work. Standard also alleged that it had paid $999.85 to certain subcontractors and suppliers because appellee had failed to do so.
[ 231 Pa. Super. Page 196]
Following a non-jury trial on February 13, 1973, the trier of fact rendered a verdict for Shegda in the amount of $3,198, and in favor of Standard in the amount of $568.60, on the counterclaim.
Standard filed timely exceptions to both verdicts on March 1, 1973, and Shegda praeciped the case for argument on April 23, 1973. On October 12, 1973, appellant filed its brief. Argument was to have taken place on October 15, 1973. Instead, the court en banc dismissed the exceptions without argument due to Standard's failure to file its brief within 30 days of the notice of the praecipe, which the court below assumed was April 23, 1973.
However, the court en banc acted improperly in dismissing the exceptions, apparently because it was unaware that appellee had also violated local court Rule 301(d) by failing to notify Standard that the argument was praeciped. Rule 301(d) in part requires the respondent to serve upon the moving party notice of the filing of a praecipe on the date of filing. By its admission on the record and during oral argument before this court, appellee conceded its failure to notify appellant of the filing, thus precluding appellant from complying with that section of Rule 301(d), which requires the filing of briefs within 30 days of notice of the praecipe.
Standard was first notified that the case had been praeciped when it received a letter from the Court Administrator on September 13, 1973. Appellee thereupon complied with Rule 301(d) by filing its brief within the 30-day period. Therefore, the court en banc should not have dismissed the exceptions ...