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DONALD J. SHAPIRO AND JILL D. SHAPIRO v. THOMAS E. ALBRIGHT AND ANDREA C. ALBRIGHT (05/22/81)

filed: May 22, 1981.

DONALD J. SHAPIRO AND JILL D. SHAPIRO, HUSBAND AND WIFE, APPELLANTS,
v.
THOMAS E. ALBRIGHT AND ANDREA C. ALBRIGHT, AND CHARLES H. DAGER T/A DAGER REALTOR



No. 1085 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action, No. 79-24122.

COUNSEL

Marc D. Jonas, Lansdale, for appellants.

Richard W. Rogers, Norristown, did not file a brief on behalf of appellees.

Spaeth, Brosky and Hoffman, JJ.

Author: Hoffman

[ 287 Pa. Super. Page 416]

Appellants contend that the lower court erred in dismissing their complaint as to appellees Thomas E. Albright and Andrea C. Albright (the Albrights) pursuant to Rule 302(d) of the Montgomery County Rules of Civil Procedure. For the reasons which follow, we reverse the order of the court below and remand for further proceedings.

Appellants initiated this action by filing a complaint in trespass and assumpsit to recover damages resulting from a latent defect in real estate which they had purchased from the Albrights.*fn1 The Albrights subsequently filed preliminary objections, alleging, inter alia, that the court lacked personal jurisdiction over them and that service of process had been defective. On March 11, 1980, the Albrights filed a brief in support of their preliminary objections. By letter dated March 12, their attorney mailed a copy of the brief to appellants' attorney, who received it on March 14. By letter dated April 10, 1980, appellants' attorney mailed three copies of a brief in opposition to the preliminary objections to the Court Administrator of Montgomery County. The court administrator received the briefs on April 14, 1980. One week later, the lower court issued an order dismissing appellants' complaint as to the Albrights on the ground that appellants had failed to file their brief within the period mandated by Rule 302(d) of the Montgomery County Rules of Civil Procedure. This appeal followed.

At the time the Albrights filed their brief in support of their preliminary objections, Rule 302(d) provided:

[ 287 Pa. Super. Page 417]

Briefs required -- In Interlocutory matters, 302(c)(1), briefs or memoranda of law may be submitted by counsel to the court administrator at any time prior to the day of argument or to the hearing judge at the time of argument. In Appealable matters, 302(c)(2), the moving party or parties shall file its brief within 30 days of the filing of Page 417} the motion, petition or preliminary objection, and shall file the same by giving three 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 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 30 days of the filing and service of the moving party's brief, shall likewise file three 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 record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of said brief or briefs.

If the briefs of either the moving party or responding party are not timely filed within the 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. If neither party complies, the court, at the time of argument and upon notification of joint non-compliance, shall impose whatever sanction it deems appropriate. In the case of multiple parties, the relief shall be granted or the action dismissed as appropriate to the position of the non-filing party or parties. The court administrator shall notify the judge or judges to whom the argument has been assigned. There can be no extension of the time for the filing of briefs by agreement of counsel.

The moving party shall file a praecipe in duplicate with the prothonotary at the time it files its Appealable matter and the ...


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