Appeal from the Order of the Court of Common Pleas of Montgomery County in the case of Frank J. Haney, and Laura M. Haney, h/w, and Leonard Schaff and Estelle Schaff, h/w, and Joan Yambor v. Michael G. Sabia, S-H, Inc., Fox Chase Federal Savings & Loan Association and Whitemarsh Township, No. 75-4615, In Equity.
John M. Demcisak, for appellants.
Mark C. Schultz, for appellee, Whitemarsh Township.
Judges Rogers, MacPhail and Palladino, sitting as a panel of three. Opinion by Judge Palladino. Judge Wilkinson, Jr. did not participate in the decision in this case.
[ 59 Pa. Commw. Page 124]
This is an appeal by several homeowners (appellants) from an order of the Court of Common Pleas of Montgomery County which denied appellants' Motion to Rescind a previously issued order granting Summary Judgment in favor of Whitemarsh Township.
Appellants brought an action against Michael G. Sabia; S-H, Inc.; Fox Chase Federal Savings and Loan Association, and Whitemarsh Township seeking restitution for damages to their homes allegedly caused by defendants' negligence in allowing the homes to be built on unsatisfactory soil.*fn1 Whitemarsh
[ 59 Pa. Commw. Page 125]
Township (hereinafter referred to as appellee) filed a Motion for Summary Judgment with a Rule to Show Cause why the Motion should not be granted. The lower court assigned the Rule a returnable date of August 31, 1979. Appellants filed a timely reply to the Rule and on August 31, 1979, the court entered an order designating the matter to be placed on the Argument List "upon the filing of a Praecipe, in duplicate, in the Office of the Prothonotary and allowing thirty days for taking depositions if such be deemed necessary." On September 10, 1979, appellee filed a Praecipe for Argument List along with a brief in support of its Motion for Summary Judgment. On October 23, 1979, the lower court granted Summary Judgment because of appellants' failure to file a brief in opposition to the Motion within 30 days of the filing of appellee's brief as required by Montgomery County Rule of Civil Procedure No. 302(d). Appellants thereafter filed a Motion to Rescind the Summary Judgment and to Strike the Praecipe for Argument List which was denied by the lower court, after argument, on March 10, 1980. This appeal followed.
Appellants argue that their brief was not due until October 30, 1979, 30 days after the period for taking depositions had expired and that the Motion for Summary Judgment was therefore prematurely, and thus improperly, granted. In the alternative, appellants maintain that the lower court abused its discretion by strictly enforcing Rule No. 302(d) in light of Pa. R.C.P. 126, which requires liberal construction of procedural rules in the interests of justice.*fn2
[ 59 Pa. Commw. Page 126]
When the lower court granted Summary Judgment, Rule No. 302(d) then provided in pertinent part:*fn3
In appealable matters, 302(c)(2), the moving party or parties shall file its brief within thirty (30) days of the filing of the Motion, Petition or Preliminary Objection, and shall file the same by giving three (3) copies of the brief to the Court Administrator's Office, who shall stamp the same received, and by serving concurrently therewith copies upon all other parties of the record. The Court ...