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FRANK J. HANEY ET AL. v. MICHAEL G. SABIA ET AL. (05/04/81)

COMMONWEALTH COURT OF PENNSYLVANIA


decided: May 4, 1981.

FRANK J. HANEY ET AL., APPELLANTS
v.
MICHAEL G. SABIA ET AL., APPELLEES

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.

COUNSEL

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.

Author: Palladino

[ 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 Administrator shall distribute to the Judge or Judges assigned to hear those matters, a copy of said brief or briefs.

The responding party or parties, within thirty (30) days of the filing and service of the moving party's brief, shall likewise file three (3) copies of its brief with the Court Administrator's Office, who shall stamp the same received, and shall serve concurrently therewith copies upon all other parties of the record. The Court Administrator shall distribute to the Judge or Judges assigned to hear those matters, a copy of said brief or briefs.

[ 59 Pa. Commw. Page 127]

If the briefs of either the moving party or responding party are not timely filed within the Page 127} period above stated, unless the time shall be extended prior thereto by the Court for good cause and reason shown, the Court Administrator shall notify the Court, and the Court shall, without further notice, mark the Motion, Petition or Preliminary Objection granted or dismissed, depending upon which party does not comply with the brief filing requirements of this rule. (Emphasis added.)

While we are mindful of the lower court's power to promulgate and enforce procedural rules, we feel compelled in the interests of justice to remand this case to allow appellants the opportunity to file a brief in opposition to the Motion for Summary Judgment and to request oral argument thereon if they so desire.

Pa. R.C.P. 126 provides:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.

Rule 126 was adopted to allow the courts an opportunity to waive or modify procedural rules to insure that justice is not denied litigants because of non-prejudicial procedural errors. In applying the above standard of liberal construction to overlook procedural errors in cases similar to the one at bar, the Pennsylvania Supreme Court has made the following observations: "Procedural rules are not ends in themselves, but means, whereby justice, as expressed in legal principles, is administered. They are not to be exalted to the status of substantive objectives."

[ 59 Pa. Commw. Page 128]

& Co., Inc. v. Iceland Products, 475 Pa. 610, 381 A.2d 441 (1977).

Thus, in light of prior case law, we are left with the following considerations in determining whether a lower court abused its discretion in refusing to waive a non-prejudicial procedural error: Was an obvious injustice done to the complaining party, and if so, was the reason given for the noncompliance more than the mere inadvertence of counsel?

The record reveals that the lower court's order of August 31, 1979, allowed 30 days for taking depositions, in addition to ordering that the matter be placed on the Argument List upon the filing of a Praecipe. Appellee filed a Praecipe and brief in support of its Motion for Summary Judgment on September 10, 1979. Rule No. 302(d) states that the responding party (appellants) must file a brief within 30 days of the filing of the moving party's brief. Appellants contend that their counsel, although admittedly unaware of new brief filing deadlines imposed by recent amendments to the local rules, was confused by the 30-day time period allotted for taking depositions. Counsel thought that any brief filing time period would not commence to run until the 30 days for taking depositions had expired. Appellants argue that this belief was reasonable and that the lower court erred in allowing appellee to file its brief before the period for taking depositions had expired.

Although we do not mean to suggest that it was improper for the lower court to accept appellee's brief before the deposition period had expired, we are convinced that under the circumstances, the appellants were justified in believing that their brief was not due until October 30, 1979, 30 days after the deposition period had expired. As such, we find that appellants' noncompliance with Rule No. 302(d) was not due to the mere inadvertence of counsel and that

[ 59 Pa. Commw. Page 130]

    strict enforcement of the rule in this instance amounted to an abuse of discretion by the lower court. To hold otherwise would unjustly deny appellants an opportunity to present their case on the merits.

We therefore issue the following

Order

And Now, May 4, 1981, the order of the Court of Common Pleas of Montgomery County, dated March 10, 1980, denying appellants' Motion to Rescind the order granting Summary Judgment for appellee is reversed, the order dated November 21, 1979, granting Summary Judgment is vacated and the case is remanded to the lower court for final disposition consistent with this opinion.

Judge Wilkinson, Jr. did not participate in the decision in this case.

Disposition

Reversed.


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