John R. Bonner, Williamsport, for appellant.
John C. Youngman, Jr., Williamsport, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a dissenting opinion in which Cercone, J., joins. Spaeth, J., files a dissenting opinion.
[ 242 Pa. Super. Page 490]
This case comes to us on appeal from the Court of Common Pleas of Lycoming County and involves an interpretation of Rule 14(7) of the Lycoming County Rules of Court.
The plaintiff had filed an action in trespass against the defendant on October 10, 1972. On Wednesday, April 17, 1974 a jury trial was held on the matter which resulted in a verdict in favor of the defendant on the same date. The plaintiff filed a written motion for a new trial on April 23, 1974. On May 1, 1974 the defendant filed a motion to dismiss plaintiff's motion for a new trial on the ground that the plaintiff failed to comply with Lycoming County Rule 14(7) which required that a motion for a new trial be filed within four days of the verdict. On August 8, 1974 the court below granted the defendant's motion. Plaintiff is now appealing from the ruling.
The pertinent portion of Rule 14(7) of the Lycoming County Rules of Court provides as follows:
"(7) Motions Stopping Judgment. Motions for new trials, for judgment N.O.V., to take off nonsuits and
[ 242 Pa. Super. Page 491]
in arrest of judgment, with the reasons, shall be filed, and a copy given to the trial judge and adverse party, within four days after verdict or non-suit."
The plaintiff contends that Rule 14(7) has been superseded by Rule 1038(d) of the Pennsylvania Rules of Civil Procedure and by Rule 1123 of the Pennsylvania Rules of Criminal Procedure in that Rule 1038(d) provides for a period of twenty days in which to file post trial motions in a civil case and Rule 1123 provides for a period of seven days in which to file such motions in a criminal case. However, Pa.R.C.P. 1038(d) deals with the time period for filing post trial motions in an assumpsit case that is tried without a jury. Pa.R.Crim.P. 1123 deals with criminal cases and has no applicability to civil cases. Thus neither of the aforesaid rules governs the instant case nor supersedes Rule 14(7) of the Lycoming County Rules of Court in civil cases involving jury verdicts although the said local rule is superseded in criminal cases and in assumpsit cases involving non-jury verdicts. Therefore the only applicability of Rule 14(7) is in civil jury cases. By so holding we are construing the local rule in a manner not inconsistent with the Rules of the Supreme Court. See Coffey v. Faix, 426 Pa. 421, 233 A.2d 229 (1067).
The plaintiff contends that he did not violate Rule 14(7) because he filed his motion for a new trial on the fourth business day after the verdict was rendered by the jury. April 17, 1974 was a Wednesday. Therefore April 20, 1974 was a Saturday and April 21, 1974 a Sunday. The plaintiff's position is that neither day should have been computed in the time limitation for filing post trial motions so that Tuesday, April 23, 1974 would have been the fourth day of the time period. Since his motion was filed on that ...