No. 3301 Philadelphia 1982, Appeal from the Order of the Court of Common Pleas, Civil Division of Montgomery County at No. 78-19569.
Allen L. Feingold, Philadelphia, for appellants.
Joseph A. Whip, Jr., Norristown, for appellee.
Wickersham, Wieand and Lipez, JJ.
[ 334 Pa. Super. Page 261]
Plaintiffs-appellants Rita and Austin Gutman and Renee and Arthur Robinson appeal from the order of the Court of Common Pleas of Montgomery County granting defendant Ruth Rissinger's petition to dismiss plaintiffs' motion for a new trial on damages only. The motion for new trial was dismissed because of plaintiffs'-appellants' failure to comply with Montgomery County Rule of Civil Procedure 252 in two respects: (1) failure to forward a copy of the motion to the official court reporter; and (2) failure to pay for transcripts within thirty (30) days.
Prior to discussing the issue presented by appellants, we feel compelled to address a procedural issue regarding the timeliness of appellants' post trial motion. At oral argument before this court, the panel members noted that appellants' motion for a new trial on damages only was filed thirteen (13) days after the jury verdict. Pa.R.C.P. 227.1(c) provides that post trial motions must be filed within ten (10) days of the jury verdict. Thus, the panel questioned whether any issues were preserved for appellate review given the apparent untimeliness of appellants' post
[ 334 Pa. Super. Page 262]
trial motion. In response to the panel's question, appellants and appellee submitted post argument memoranda. After reviewing these memoranda, we find that Pa.R.C.P. 227.1 was substantially complied with and that appellee was not prejudiced by the late filing of the motion.
The facts relating to this procedural question are as follows:*fn1 The jury rendered verdicts in favor of plaintiffs-appellants on March 18, 1982. On Wednesday, March 24, 1982, appellants' counsel served his post trial motion for new trial on damages only on the trial court judge and appellee's counsel by first class mail. He sent the original of the motion to the trial court judge; he also sent a copy of the motion to the prothonotary for filing. On Friday, March 26, 1982, the prothonotary's office returned the copy of the motion to appellants' counsel, informing him that the original was required for docketing. Appellants' counsel alleges that he received the time-stamped note from the prothonotary on Tuesday, March 30, 1982. Appellants' counsel further avers that on the same day, he placed an original signature on the copy of the motion and returned it to the prothonotary's office, again informing the prothonotary that the original motion had been forwarded directly to the trial judge. The docket entries indicate that the motion was officially docketed on March 31, 1982.
Pa.R.C.P. 227.1(c) provides that post trial motions shall be filed within ten days after the jury verdict. Instantly, appellants' post trial motion was not docketed until thirteen days after the verdict. It is clear, however, that appellants' counsel attempted to file the motion on March 24, 1982, only six days after the jury verdict. This attempted filing was invalid because local rules required that the original motion be filed with the prothonotary, whereas appellants' counsel had provided the prothonotary with a copy of the motion. Upon being informed of the error by
[ 334 Pa. Super. Page 263]
the prothonotary's office, appellants' counsel promptly corrected the mistake and properly filed the motion. While the motion was officially docketed three days late, appellee and the trial court judge were given notice of appellants' motion well within the prescribed ten day period. Furthermore, appellee has raised no allegations of prejudice caused by the minor delay in docketing the motion. Given the fact that appellants substantially complied with Pa.R.C.P. 227.1(c) by attempting to file their post trial motion within the ten day period and by acting promptly to correct their prior error, and ...