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RITA BURNS AND JOSEPH BURNS v. CITY PHILADELPHIA (02/18/86)

filed: February 18, 1986.

RITA BURNS AND JOSEPH BURNS
v.
CITY OF PHILADELPHIA, APPELLANT



Appeal from the Judgment of the Court of Common Pleas, Trial Division, Civil Section, of Philadelphia County, October Term, 1979, No. 591.

COUNSEL

Michael Tolcott, Philadelphia, for appellant.

Peter C. Gardner, Philadelphia, for appellees.

Rowley, Watkins and Geisz, JJ.*fn*

Author: Rowley

[ 350 Pa. Super. Page 617]

OPINION OF THE COURT

Appellee, Rita Burns, was injured when she stepped into a "tree well" located on a walkway at Veteran's Stadium in the City of Philadelphia. Mrs. Burns and her husband filed an action in trespass against the City to recover damages for her injuries. The trial judge, sitting without a jury, found the City negligent. In order for the tree well to be able to retain a sufficient amount of water for the tree, the surface level of the soil in the well was kept several inches below that of the surrounding walkway. Specifically, the court concluded that the well constituted a danger to person's traveling on the walkway, and was the proximate cause of the injuries sustained by Mrs. Burns.*fn1 The City of Philadelphia appeals from the judgment entered on the verdict in favor of plaintiffs-appellees, Rita and Joseph Burns.

By a per curiam order of this Court, the judgment was affirmed because the original record certified on appeal did not include appellant's exceptions to the trial court's decision, and the docket entries showed that appellant's exceptions were filed eleven days late. Appellant filed an application for reconsideration or reargument asserting that it had timely filed its exceptions with the "post-trial motions clerk" of the Philadelphia Court of Common Pleas pursuant

[ 350 Pa. Super. Page 618]

    to Philadelphia Civil Rule 240, and the timely filing of its exceptions was noted on the docket maintained by the post-trial motions clerk. However, no such exceptions and docket entries, as indicated, were transmitted to the Superior Court with the original record when the appeal was filed. Reargument was denied, but reconsideration was granted, and the per curiam order and accompanying memorandum affirming the judgment were withdrawn. Both parties were directed to file briefs addressing the issue of the practice and procedure under Philadelphia Civil Rule 240 as well as its relationship to the Pennsylvania Rules of Civil and Appellate Procedure.*fn2

I.

Philadelphia Civil Rule 240(C) provides:

(C) Filing Procedure

(1) All exceptions and post-trial motions shall be filed in triplicate with the Post-Trial Motion Clerk and shall contain the telephone numbers of all counsel involved in the trial of the case. In addition, said motions and exceptions shall contain a Certification of Service on all counsel named therein, and, if desired, should be accompanied by a written request for argument of the exceptions or motions before a court en banc. Any request by opposing counsel for argument before a court en banc shall be filed in writing within five (5) days of the service of the exceptions or motions.

(2) Under the direction of the Court Administrator, the Post-Trial Motion Clerk shall maintain an Individual Court Docket for each Judge of the Common Pleas Court.

The Post-Trial Motion Clerk shall docket exceptions and post-trial motions in the Individual Docket of the Trial Judge and in the General Appearance Docket and forward ...


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