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DAVID G. STOKES v. DENNIS E. THIEMANN AND AMBER THIEMANN (03/05/82)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 5, 1982.

DAVID G. STOKES
v.
DENNIS E. THIEMANN AND AMBER THIEMANN, HIS WIFE, APPELLANT

No. 98 Harrisburg, 1980, Appeal from the order dated April 8, 1980, Court of Common Pleas, 41st Judicial District, Perry County, Civil Action No. 78-1377.

COUNSEL

William R. Balaban, Harrisburg, for appellants.

Bruce D. Foreman, Harrisburg, for appellee.

Price, Johnson and Shertz, JJ. This case was decided prior to the expiration of Shertz, J.'s commission of office.

Author: Johnson

[ 296 Pa. Super. Page 113]

An action was filed in assumpsit and trespass, the plaintiff, appellee in this appeal, alleging that the defendants, appellants before us, owed him certain sums of money for services rendered. A jury trial ended on December 14, 1979,

[ 296 Pa. Super. Page 114]

    with a verdict for the plaintiff. The defendants then tried to settle the dispute by tendering an amount less than the jury verdict. This was refused by the plaintiff. The defendants did not file their post-trial motions until a month after the verdict.*fn1 Pennsylvania Rule of Civil Procedure 227.1*fn2 provides that post-verdict motions must be filed within ten days of the verdict. Appellants argue that they should be allowed to file their motion late where there is no prejudice to the appellee and the reason for the delay is justifiable. They do not supply us, however, with any case law which supports their proposition.

One case on which they rely, McAleer & Co. v. Iceland Products, 475 Pa. 610, 381 A.2d 441 (1977), concerned Pa.R.Civ.P. 1038(d) which applies to non-jury trials in assumpsit, and which provided that exceptions to rulings may be filed within twenty days.*fn3 In McAleer our Supreme Court acknowledged that a trial court may in appropriate circumstances grant leave to file exceptions late, but found no legally cognizable reason for the failure to comply with the rule where counsel's explanation was inadvertence. In the case before us, counsel's explanation for the delay in filing a Rule 227.1 motion is that he was attempting to settle the amount due the other party to the lawsuit and that he believed he would not prejudice his clients' right to appeal by thus delaying. This does not reach the level of a legally cognizable excuse for delay in complying with a mandatory, unambiguous rule.

[ 296 Pa. Super. Page 115]

The other cases which appellants cite to us, including those they cite as involving a situation similar or identical to theirs, are default judgment cases. Counsel would analogize his motion to a petition to open a non pros or default judgment. We see no analogy. A non pros judgment is entered against a plaintiff who has failed to file a complaint after being served with a rule to do so. Pa.R.Civ.P. 1037(a). A default judgment is entered against a defendant who has failed to answer a complaint. Pa.R.Civ.P. 1037(b). In neither situation have the parties had their day in court.*fn4 We are therefore not persuaded that the criteria for granting a petition to open those judgments are adaptable to the consideration of a motion asking the court to permit the untimely filing of post trial motions.

Appellants further argue the applicability of Pa.R.Civ.P. 248 and 126*fn5 to their situation. Rule 248 does not apply, as there was no written agreement or order of court. With respect to Rule 126, our courts require good and sufficient reasons before they permit a waiver of procedural rules.

[ 296 Pa. Super. Page 116]

See, e.g., McAleer & Co., Inc. v. Iceland Products, supra, where the court said, after citing the above two rules:

We thus hold that it is within the discretion of the trial court to allow exceptions under Rule 1038(d) to be filed out of time in a case where the particular circumstances indicate that there are good and sufficient reasons for so doing.

475 Pa. at 614, 381 A.2d at 443 (emphasis added). See also Gagliardi v. Lynn, 446 Pa. 144, 285 A.2d 109 (1971), where our Supreme Court said, in the context of the late filing of a pleading:

We have considered this question previously and our position is clear: '. . . a lower court will not be reversed either for waiving or refusing to waive noncompliance with procedural rules in the absence of a showing of an abuse of discretion which has caused manifest and palpable injury to the complaining party: see Richter v. Mozenter, 356 Pa. 650, 654, 53 A.2d 76.' Templeton Appeal, 399 Pa. 10, 16, 159 A.2d 725, 729 (1960), quoting from Coppage v. Smith, 381 Pa. 400, 404, 113 A.2d 247 (1955). This practice comports with Pa.R.C.P. 126 . . . .

446 Pa. at 151, 285 A.2d at 112. Thus appellant must show good reasons for the delay and also that he was injured by an abuse of discretion by the trial court. Appellant has failed to do so. The reason for the delay is insufficient to justify a waiver of the rule, as the trial court correctly found. The trial judge based his decision on the applicable case law.*fn6 He did not abuse his discretion in refusing to waive compliance with a clear, mandatory rule.

The denial by the trial judge of the Motion to Seek Leave to Obtain an Extension of Time to File Post-Trial Motions is affirmed.


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