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decided: May 27, 1983.


No. 13 E.D. Appeal Docket 1982, Appeal from the Order of the Superior Court, Entered November 30, 1981, at No. 1498, Philadelphia, 1980, Affirming the Judgment of the Court of Common Pleas of Montgomery County, Civil Action, Equity, Entered July 11, 1980, at No. 80-06890.


Sidney M. DeAngelis, I.P.P., Norristown, for appellant.

Marvin Wilenzik, Norristown, for appellee.

Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Zappala, J., dissents. Nix, J., files a dissenting opinion.

Author: Larsen

[ 501 Pa. Page 145]


On April 24, 1980, appellant, Sidney M. DeAngelis, commenced a suit in equity against appellee, Sandra Schultz Newman, Receiver of the Foeroerer Tract Committee, Inc. seeking specific performance of an Agreement of Sale for a certain tract of real estate. On May 6, 1980, replying to appellant's complaint, appellee filed preliminary objections avering four grounds for relief: (1) objection raising a question of jurisdiction; (2) demurrer; (3) laches; (4) lack of capacity to sue.*fn1 Two days later appellant filed a notice to take the deposition of appellee by oral examination pursuant to Pa.R.C.P. 4007. Appellee responded to the deposition notice with a motion for a protective order. On May 13, 1980 the court entered a Rule against the appellant to show cause why a protective order should not issue. The Rule was made returnable July 18, 1980. Thereafter the appellant filed a reply to appellee's preliminary objections. On

[ 501 Pa. Page 146]

June 11, 1980, the court sua sponta dismissed appellant's lawsuit with the following order:

"And now, this 11th day of June, A.D.1980, preliminary objections having been filed by defendant as well as Praecipe for Argument and Briefs in Support thereof, and thirty (30) days having lapsed and no responsive briefs having been filed by plaintiff, the complaint is dismissed as required by M.C.R.C.P. 302(d)."

On appeal to the Superior Court, the lower court's order was affirmed.*fn2 We granted appellant's petition for allowance of appeal.

The appellant contends that the lower court erred in dismissing his complaint on the ground that he failed to file a responsive brief within thirty (30) days from the time the appellee filed preliminary objections and briefs as required by Rule 302(d) of the Montgomery County Rules of Civil Procedure. For the reasons set forth in our opinion in Brogan v. Holmes, 501 Pa. 234, 460 A.2d 1093 (1983), filed May 27, 1983, we agree and reverse.

In Brogan v. Holmes, supra, we stated that "Rule 126 [of the Pennsylvania Rules of Civil Procedure]*fn3 is not a judicial recommendation which a court may opt to recognize or ignore. Rather the rule is a statement of the requirement of fairness and establishes an affirmative duty courts are bound to follow in applying all procedural rules whether they be statewide or local in origin." A rule which mandates summary dismissal of a law suit based upon a non-prejudicial procedural error is inconsistent with the fairness required by the Pennsylvania Rules of Civil Procedure.

In cases such as this where a defendant files preliminary objections involving appealable matters, to the plaintiff's

[ 501 Pa. Page 147]

    complaint, the failure to file a brief within the time prescribed by M.C.R.C.P. 302(d) brings different results depending upon which is the defaulting party. If the defendant-preliminary objector fails to comply, the objections are dismissed and the defendant is free to defend on the merits. If, however, it is the plaintiff-respondent who fails to strictly meet the brief filing time requirement, the lawsuit is dismissed. It may very well be that in a given case, a plaintiff's lawsuit should be dismissed. However, a dismissal should not be mandatory when a brief is not filed in strict compliance with a local filing requirement. This would conflict with Rule 126 of the Pennsylvania Rules of Civil Procedure.

The order of the Superior Court is reversed and the case remanded to the lower court for proceedings consistent with this opinion.

NIX, Justice, dissenting.

I dissent for the reasons set forth in my dissenting opinion in Brogan v. Holmes Electric Protective Co., of Philadelphia, 501 Pa. 234, 243, 460 A.2d 1093, 1096 (1983).

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