No. 1500 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 79-23894.
Arnold J. Wolf, Philadelphia, for appellant.
Andrew L. Braunfeld, Norristown, for appellee.
Wickersham, McEwen and Wieand, JJ.
[ 291 Pa. Super. Page 256]
This appeal is from the dismissal of a complaint, pursuant to authority contained in Montgomery County Rule of Civil Procedure 302(d), for failure to file a timely brief in response to preliminary objections and from a subsequent refusal by the court to vacate the earlier order. For reasons hereinafter appearing, we reverse the later order and remand for further proceedings.
On December 14, 1979, the appellant, Pat Seidel, caused a five count complaint to be filed against the appellee, Great Factory Store. On February 19, 1980, appellee filed preliminary objections in the nature of a demurrer to the complaint, which appellant answered on March 10, 1980. Appellee thereafter caused the case to be listed for argument and
[ 291 Pa. Super. Page 257]
filed its brief. By stipulation of counsel, the time for filing appellant's brief was extended to May 20, 1980. Appellant failed to file his brief by that date, however, and on May 28, 1980 the trial court dismissed the complaint pursuant to authority contained in Montgomery County Rule of Civil Procedure No. 302(d).*fn1
On June 5, 1980, appellant presented to the trial court a motion to rescind and vacate the order dismissing the complaint,
[ 291 Pa. Super. Page 258]
alleging that the due date for appellant's brief had been incorrectly diaried and inadvertently overlooked by counsel. The same day, the court dismissed appellant's motion without hearing and without receiving evidence by depositions or stipulation.
On appeal to this Court, appellant argues that Montgomery County Rule 302(d) is invalid because it is inconsistent with the Pennsylvania Rules of Civil Procedure and, in any event, that his default in failing to file a timely brief should have been excused ...