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WALTER R. DAVISON v. JOHN W. HARPER (05/24/85)

filed: May 24, 1985.

WALTER R. DAVISON, APPELLEE,
v.
JOHN W. HARPER, INC. AND JOHN W. HARPER, JR., APPELLANTS



Appeal from Order of the Court of Common Pleas, Civil Division, of Delaware County, No. 80-11028.

COUNSEL

Bernard M. Berman, Media, for appellants.

Stephen S. Smith, Upper Darby, for appellee.

Wieand, Montemuro and Cercone, JJ.

Author: Wieand

[ 342 Pa. Super. Page 562]

The Court of Common Pleas of Delaware County, relying upon a local rule of court, dismissed post-trial motions without considering the substantive merit thereof because the motions had not been accompanied by an order directing that the trial record be transcribed. On appeal, it is argued that the trial court placed an improper construction on the local rule and, if proper, the rule is in conflict with the Rules of Civil Procedure and invalid. We agree and reverse.

Walter R. Davison successfully prosecuted a civil claim for the recovery of real estate commissions in the amount of $4,770. John W. Harper, Jr. and John W. Harper, Inc., the defendants, filed timely motions for judgment n.o.v. and for new trial.*fn1 Their post-trial motions, however, were not accompanied by an order for the transcribing of the testimony received at trial. This order was not presented to the court until September 1, 1983. On September 23, 1983, the trial judge sua sponte dismissed the post-trial motions without hearing. His order contained a finding that the defendants had intentionally delayed filing an order to transcribe for nearly five months. This, he held, was in violation of Delaware County Rule 227.2. The local rule provided as follows:

[ 342 Pa. Super. Page 563]

All post-trial motions shall be accompanied by an order directing that the trial testimony and the court's charge or such portion thereof as is requested be transcribed at the cost of the moving party. Where less than all the testimony and charge have been requested to be transcribed any party shall have ten (10) days after the service of the post-trial motions and proposed order for transcription in which to file objections to the proposed order. The trial judge shall rule on the objections.

[ 342 Pa. Super. Page 564]

It is without dispute that a local court has the right to promulgate local rules of procedure. Ricci v. Ricci, 318 Pa. Super. 445, 447, 465 A.2d 38, 39 (1983); 42 Pa.C.S. ยง 323. It is equally well settled that "[t]he application, construction and interpretation of a local rule of court are matters primarily to be determined by the court promulgating the local rule[,] and we will interfere only where the court commits an abuse of discretion." Gutman v. Rissinger, 334 Pa. Super. 259, 264-265, 482 A.2d 1324, 1327 (1984), quoting Equipment Finance, Inc. v. Toth, 328 Pa. Super. 351, 355, 476 A.2d 1366, 1369 (1984). Local rules, however, must be consistent with and not in conflict with the Pennsylvania Rules of Civil Procedure. To the extent that they are not consistent with state procedural rules, local rules are invalid and cannot be followed. Gonzales v. Procaccio Brothers Trucking Co., 268 Pa. Super. 245, 249, 407 A.2d 1338, 1340 (1979) (allocatur denied October 29, 1979). See also: Sporkin v. Affinito, 326 Pa. Super. 481, 485, 474 A.2d 343, 345 (1984); Wills Equipment Co. v. Goldman Enterprises, Inc., 325 Pa. Super. 116, 120, 472 A.2d 674, 677 (1984). "A rule which arbitrarily and automatically requires the termination of an action in favor of one party and against the other based upon a non-prejudicial procedural mis-step, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of Civil Procedure." Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, 501 Pa. 234, 240, 460 A.2d 1093, 1096 (1983). See also: Dream Page 564} Pools of Pennsylvania, Inc. v. Baehr, 326 Pa. Super. 583, 474 A.2d 1131 (1984).

The Delaware County rule mandates that all post-trial motions shall be accompanied by an order directing that the testimony and the trial court's charge be transcribed. This rule, however, provides neither remedy nor penalty in the event that the rule is not followed. The trial court in the instant case interpreted the rule to require dismissal of a post-trial motion filed in violation of the rule. It dismissed the post-trial motions without hearing argument thereon or otherwise considering the merits thereof. We conclude that such an interpretation of the rule was an abuse of discretion. If automatic dismissal of post-trial motions was to be the penalty for violating the rule, the bar and the public were entitled to notice in the form of a specific mandate in the language of the rule. The interpretation placed on the rule by the trial court, moreover, rendered the local rule in conflict with the Pennsylvania Rules of Civil Procedure.

The decision of the Supreme Court in Byard F. Brogan, Inc. v. Holmes Electric Protective Company of Philadelphia, supra, is instructive if not precisely on all fours. There the Supreme Court invalidated a local rule in Montgomery County which had mandated that upon late filing of briefs the court was to decide a pending motion, petition or preliminary objection against the tardy party. The Supreme Court found the local rule inconsistent with Pa.R.C.P. 126, which directs the liberal construction of rules "to secure the just, speedy and inexpensive determination of every action or proceeding to which they are ...


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