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filed: April 13, 1984.


No. 116 Pittsburgh, 1982, Appeal from the Order of the Court of Common Pleas, Civil Division, of Allegheny County, at No. G.D. 81-26265


Jonathan Walters, Pittsburgh, for appellants.

John J.B. Jones, Pittsburgh, for appellee.

Cavanaugh, Johnson and Montgomery, JJ.

Author: Montgomery

[ 326 Pa. Super. Page 477]

This appeal arises from a lower court order denying a petition to strike or open a judgment. Plaintiff-Appellee, Vision Service Plan of Pennsylvania, instituted this action in the lower court against Defendant-Appellants, Pennsylvania AFSCME Health and Welfare Fund, Gerald W. McEntee, Trustee, and Jesse C. Newcomer, Trustee and Administrator, seeking damages for breach of contract.

Plaintiff's Complaint was served on Defendants on September 29, 1981. On October 14, 1981, Defendants' counsel telephoned Plaintiff's counsel and requested an extension of time in which to respond to the Complaint. Plaintiff's counsel agreed to an extension of twenty days from the date of the telephone call. By letter dated October 20, 1981, Defendants' counsel confirmed the oral agreement and stated that a response would be filed on or before November 3, 1981.*fn1 On November 4, 1981, counsel for Defendants mailed preliminary objections to the Prothonotary

[ 326 Pa. Super. Page 478]

    and to Plaintiff's counsel, which were received by both on November 6, 1981. However, the Prothonotary's office refused to docket Defendants' preliminary objections because they were not accompanied by a brief, as was required by Administrative Order No. 43 of the Court of Common Pleas of Allegheny County, dated October 17, 1979.*fn2 On November 13, 1981, Plaintiff's counsel filed a praecipe for entry of default judgment and judgment was entered that day by the Prothonotary.*fn3

On November 23, 1981, Defendants filed a petition to strike, or, in the alternative, to open the default judgment. On January 26, 1982, after submission of briefs and oral argument, the lower court denied Defendants' petition. A request for reconsideration was submitted on February 8, 1982, and was denied on February 10, 1982. This appeal followed.*fn4

[ 326 Pa. Super. Page 479]

In support of their contention that the lower court committed an error of law, the Appellants point out the long-established rule that although the filing of a responsive pleading may be late, if it is filed before the filing of a praecipe for judgment, it will nevertheless bar a default judgment. See Fuel City Manufacturing Co. v. Waynesburg Products Corp., 268 Pa. 441, 112 A. 145 (1920); Von Schirach v. Vance, 239 Pa. 300, 86 A. 856 (1913); Bordentown Page 479} Banking Co. v. Restein, 214 Pa. 30, 63 A. 451 (1906); Barndollar v. Fogarty, 203 Pa. 617, 53 A. 492 (1902); Metz v. Hoffman, 131 Pa. Super. 303, 200 A. 132 (1938). The rationale of these decisions is that once a responsive pleading is filed a default judgment cannot thereafter be entered because the responding party is no longer in default. In denying Appellants' petition to open or strike the default judgment, the lower court held that the above-stated rule of law has been abrogated by the adoption of Pennsylvania Rule of Civil Procedure 237.1(a), which provides:

No judgment by default shall be entered by the prothonotary unless the praecipe for entry includes a certification that a written notice of intention to file the praecipe was mailed or delivered to the party against whom judgment is to be entered and to his attorney of record, if any, after the default occurred and at least ten days prior to the date of the filing of the praecipe. If a written agreement for an extension of time specifies a time within which the required action must be taken and a default occurs thereafter, judgment by default may be entered by the prothonotary without prior notice under this rule. A copy of the notice or agreement shall be attached to the praecipe. (Emphasis added.)

We conclude that the lower court erred in so holding. Rule 237.1 merely provides the notice requirements mandated prior to the entry of default judgments and, in our opinion, does not in any way alter the long-existing rule clearly enunciated in the cases cited above. The common law rule and Rule 237.1 are not inconsistent, and each can exist without offending the other. We must hold that the lower court erred in reaching a contrary conclusion.

Unfortunately, our resolution of that issue does not, standing alone, permit us to dispose of this appeal. In its opinion, the lower court stated that the Prothonotary's office should not have refused to accept Appellants' preliminary objections and, further, that the preliminary objections were deemed to have been filed when they were received by the Prothonotary on November 6, 1981. In light of our

[ 326 Pa. Super. Page 480]

    finding that the filing of preliminary objections would inhibit the valid subsequent entry of a default judgment, the lower court's conclusion that the preliminary objections were properly filed is crucial to the issue of the validity of the default judgment entered on November 13, 1981.

Obviously, the lower court did not require strict adherence to Administrative Order No. 43, which provided that "No Preliminary Objections shall be accepted for filing by the Prothonotary unless it is accompanied with a brief." Ordinarily, the application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule and our Court will not interfere unless that court commits an abuse of discretion. Commonwealth v. Prisznyak, 306 Pa. Super. 137, 452 A.2d 253 (1982). Unfortunately, the lower court gives no rationale in its opinion for its declaration that the Prothonotary should not have refused to accept Defendants' preliminary objections. Thus, we have no meaningful basis for review of this issue in the case.

We could simply remand this case to the lower court for further proceedings, beginning with the consideration of the Preliminary Objections filed by the Defendant-Appellants. The issue of whether or not the lower court was correct in its holding that the Prothonotary should have accepted the Defendants' Preliminary Objections would then only come before us if the Plaintiff was dissatisfied with the outcome of the litigation in the lower court, and elected to include that issue in any subsequent appeal it might file to our Court.*fn5 However, it would not be fair to the parties, nor serve the interests of judicial economy, to require that the parties proceed through substantial additional litigation, if we would ultimately disagree with the lower court's holding that the Preliminary Objections should have been considered to have been filed on the date

[ 326 Pa. Super. Page 481]

    they were received but rejected by the Prothonotary.*fn6 Further, it is evident that the issue of whether the Appellants' Preliminary Objections were properly filed is critical to the resolution of the questions presently before us in this case. In light of such factors, we conclude that it would be preferable to remand this matter to the lower court for a prompt clarification of the rationale for its decision on this point, so as to permit us to expeditiously dispose of all of the issues necessary in the resolution of the instant appeal.

The order of the lower court is temporarily vacated, and this case is remanded to the lower court with directions to prepare a supplemental opinion clarifying the reasons for its conclusion that the Preliminary Objections of the Defendants were to be considered as having been filed on November 6, 1981, when they were rejected by the Prothonotary. The lower court is requested to complete this task and submit its supplemental opinion to us within thirty days of the date of the filing of this Opinion. Jurisdiction of this appeal is retained by our Court.

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