No. 81-3-450, On Appeal From the Order of the Superior Court of Pa. (October Term, 1979, Nos. 1292, 1293, 1692), Affirming the Judgment of the Court of Common Pleas of Montgomery County at No. 76-16984, 292 Pa. Super. 605, 435 A.2d 238 (1981)
David R. Strawbridge, A. Richard Bailey, Philadelphia, for appellant.
Dean B. Stewart, Jr., John O'Rourke, Norristown, for appellee.
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix, J., files a dissenting opinion. Zappala, J., dissents.
On October 21, 1976, appellant, Byard F. Brogan, Inc. (Brogan) initiated a lawsuit in trespass and assumpsit against appellee, Holmes Electric Protection Company (Holmes). The action sought recovery of damages for a burglary loss at Brogan's place of business in Glenside, Pennsylvania. The gravamen of appellant's complaint is the malfunction of a burglary detection system installed by appellee which, it is alleged, caused Brogan to suffer losses in excess of $358,000.00.
On April 20, 1979, pursuant to Pennsylvania Rule of Civil Procedure No. 1035, appellee filed a motion for summary judgment on the grounds that, under the pleadings and applicable law, either Holmes was entitled to judgment on liability, or Brogan was entitled to judgment for the limited amount as set forth in a liability limitation provision of the admitted agreement between the parties. Contemporaneous with the filing of its motion for summary judgment, appellee filed a brief in support of its motion in the office of the local court administrator.
On May 22, 1979, appellee's motion for summary judgment was granted sua sponta solely because appellant Brogan failed to file a reply brief within 30 days from the date the appellee's brief was filed with the court administrator as provided by Montgomery County Rule of Civil Procedure No. 302(d), as amended. On May 31, 1979, appellant filed a motion to vacate the May 22, 1979 order granting summary judgment in favor of appellee Holmes. Appellant's motion was summarily denied on June 1, 1979. On June 21, 1979, Brogan filed a motion to open judgment. Again, this motion was refused by order dated June 22, 1979. The appellant then appealed to the Superior Court from the orders of May 22, 1979 and June 1, 1979 and the judgment entered on July 13, 1979. In a memorandum opinion, the Superior Court affirmed.*fn1 We granted appellant's petition for allowance of appeal.
Appellant Brogan argues that Montgomery County Rule of Civil Procedure No. 302(d)*fn2 is invalid in that it is inconsistent with the Pennsylvania Rules of Civil Procedure.*fn3 At the time appellee filed its summary judgment motion, Rule 302(d) provided:
(d) 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. In Appealable matters, 302(c)(2), the moving party or parties shall file its brief within 30 days of the filing of the motion, petition or preliminary objection, and shall file the same by giving three copies of the brief to the court administrator's office, who shall stamp the same received, and by serving concurrently therewith copies upon all other parties of record. The court administrator shall distribute to the judge or judges assigned to hear those matters, a copy of the said brief or briefs.
The responding party or parties, within 30 days of the filing and service of the moving party's brief, shall likewise file three copies of its brief with the court administrator's office, who shall stamp the same received, and shall serve concurrently therewith copies upon all other parties of record. The court administrator shall distribute ...