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HARLEY DAVIDSON MOTOR CO. v. ROBIN HARTMAN AND LINDA HARTMAN (02/26/82)

filed: February 26, 1982.

HARLEY DAVIDSON MOTOR CO., INC., APPELLANT,
v.
ROBIN HARTMAN AND LINDA HARTMAN



No. 1955 Philadelphia, 1980, Appeal from Order of the Court of Common Pleas, Civil Division, of Lebanon County, No. 1403 of 1980.

COUNSEL

David H. Radcliff, Harrisburg, for appellant.

William M. Brandt, Palmyra, for appellees.

Price, Wieand and Hoffman, JJ.

Author: Wieand

[ 296 Pa. Super. Page 38]

This is an appeal from an order dismissing a complaint in assumpsit after plaintiff's counsel had neglected to file a

[ 296 Pa. Super. Page 39]

    brief, as required by Lebanon County Rule 1028,*fn1 in response to defendants' preliminary objections. We reverse.

On May 27, 1980, appellant, Harley Davidson Motor Co., Inc., filed a complaint in assumpsit against Robin and Linda Hartman, appellees, alleging that appellees had guaranteed the payment of certain advances made by appellant to Harrisburg Harley Davidson, Inc. On June 16, 1980, appellees filed preliminary objections in the nature of a demurrer, together with a supporting memorandum of law. The preliminary objections contended (1) that the written contract was incomplete because it failed to state the amount of the obligation being guaranteed, and (2) that the contract disclosed that appellant's contractual rights thereunder had been assigned to another company. A copy of the preliminary

[ 296 Pa. Super. Page 40]

    objections and brief were sent to appellant via first class mail.

Lebanon County Rule 1028, Section B, provides that any party desiring to oppose the sustaining of preliminary objections shall file a brief or memorandum of law within ten days after service of the preliminary objections. Appellant's counsel neglected to file a responsive brief or memorandum of law.*fn2 On July 14, 1980, twenty-eight days later, appellees certified the records to the Lebanon County Court of Common Pleas for disposition pursuant to Lebanon County Rule 1028. When the preliminary objections came before the court, they were sustained, and an order was entered which dismissed the complaint without leave to amend.

Following notice of appeal, the trial judge prepared a memorandum opinion in which he wrote: "Where, as here, no opponent's brief or memorandum of law having been filed within ten days, we have consistently interpreted the rule as meaning that the party does not oppose the sustaining of the preliminary objections. We find the preliminary objections facially valid. In that no opponent's brief has been filed for nearly thirty days after the service of the ...


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