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JAMES M. HESSELGESSER III v. GLEN-CRAFT CONTRACTORS (05/22/81)

filed: May 22, 1981.

JAMES M. HESSELGESSER III
v.
GLEN-CRAFT CONTRACTORS, INC., APPELLANT



No. 1189 Philadelphia, 1980, Appeal from the Order of the Court of Common Pleas of Montgomery County, Civil Action, No. 79-21165, November Term. 1979.

COUNSEL

Thomas J. McGoldrick, Bala Cynwyd, for appellant.

Daniel C. Barrish, Norristown, for appellee.

Spaeth, Brosky and Hoffman, JJ.

Author: Hoffman

[ 287 Pa. Super. Page 321]

Appellant contends that the lower court erred in dismissing its petition to open a default judgment on the ground that it had failed to file a supporting brief within the period mandated by Rule 302(d) of the Montgomery County Rules of Civil Procedure. We disagree and, accordingly, affirm the order of the court below.

Appellee commenced this breach of contract action on October 31, 1979. Upon appellant's failure to answer the complaint, appellee caused a default judgment to be entered on November 27, 1979. On December 27, 1979, appellant filed a petition to open the judgment, alleging, inter alia, that it had not been served with the complaint and that it had no knowledge of the action until it received notice of entry of the default judgment. After appellee answered the petition, the lower court, by order dated February 4, 1980, directed that the case be placed on the argument list upon the filing of a praecipe and, if necessary, the taking of depositions. Appellant filed the praecipe on March 3, 1980. On April 9, 1980, the lower court issued an order dismissing the petition to open judgment because appellant had failed to file a supporting brief within the thirty day period mandated by Rule 302(d) of the Montgomery County Rules of Civil Procedure. This appeal followed.

As amended in June of 1979, Rule 302(d) provided:

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.

[ 287 Pa. Super. Page 322]

    moving party shall serve a copy of the praecipe on opposing counsel or unrepresented party along with the motion or petition. (Emphasis added.)*fn1

Appellant argues that Rule 302(d) is in conflict with Rule 126 of the Pennsylvania Rules of Civil Procedure. "Although the several courts of common pleas may properly adopt local rules, such rules are invalid to the extent they conflict with or are inconsistent with the Pennsylvania Rules of Civil Procedure." Gonzales v. Procaccio Brothers Trucking Co., 268 Pa. Super. 245, 249, 407 A.2d 1338, 1340 (1979). See also 42 Pa.C.S.A. ยง 323 ("[E]xcept as otherwise prescribed by general rules, every ...


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