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PAT SEIDEL v. GREAT FACTORY STORE (10/09/81)

SUPERIOR COURT OF PENNSYLVANIA


filed: October 9, 1981.

PAT SEIDEL, APPELLANT
v.
GREAT FACTORY STORE

No. 1500 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Montgomery County, No. 79-23894.

COUNSEL

Arnold J. Wolf, Philadelphia, for appellant.

Andrew L. Braunfeld, Norristown, for appellee.

Wickersham, McEwen and Wieand, JJ.

Author: Per Curiam

[ 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 because it was caused by inadvertence on the part of his attorney.

The validity of the Montgomery County Rule 302(d) has been upheld by recent decisions of this Court. In Dunham v. Temple University, 288 Pa. Super. 522, 432 A.2d 993 (1981), it was held that Rule 302(d) was not in conflict with Pa.R.C.P. No. 1034(b) or 1037(c). In Hesselgesser v. Glen-Craft Contractors, Inc., 287 Pa. Super. 319, 430 A.2d 305 (1981), a panel of the Court held further that Rule 302(d) was not unreasonable. The panel observed, however, that the court making such a rule has broad power to suspend or disregard the rule to prevent an injustice. It said: "Accordingly, although Rule 302(d) is silent as to the procedure to be followed after a sanction has been imposed, we believe that the Montgomery County Court of Common Pleas would vacate an order imposing a sanction if the non-complying party, by timely petition, offered a reasonable excuse for its failure to file a brief within the prescrt's refusal to excuse noncompliance constituted an abuse of discretion, its decision would be reversed on appeal." Id., 287 Pa. Super. 319, 430 A.2d 305. See also: Shapiro v. Albright, 287 Pa. Super. 455, 430 A.2d 672 (1981).

[ 291 Pa. Super. Page 259]

Inadvertence of counsel, if reasonably explained, is an adequate excuse for the failure to file a brief and will justify relief. See generally Horan v. R. S. Cook & Associates, Inc., 287 Pa. Super. 265, 430 A.2d 278 (1981); St. Joe Page 259} Paper Co. v. Marc Box Co., Inc., 260 Pa. Super. 515, 394 A.2d 1045 (1978); Dupree v. Lee, 241 Pa. Super. 259, 361 A.2d 331 (1976); Alexander v. Jesray Construction Co., 237 Pa. Super. 99, 346 A.2d 566 (1975).

A review of the order and opinion of the trial court in the instant case discloses that the adequacy of the excuse offered by appellant was neither considered nor determined. Appellant's application to vacate the court's dismissal order contained averments that the failure to file a brief had been attributable to an inadvertent failure by counsel to diary the correct date on which the brief was due. Appellee's answer contained an effective denial of those averments. No evidence was taken, and the court made no findings. The motion was disposed of by a simple order of denial. A subsequently filed opinion discussed the reasons for the Montgomery County rule but disclosed affirmatively that there had been no consideration given and no determination made concerning the reasonableness of the excuse offered for appellant's default. Such a determination is essential to our present review.

Therefore, we will reverse the order of June 5, 1980, and remand for further proceedings on appellant's application to vacate the court's dismissal order of May 29, 1980.

It is so ordered.


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