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DOROTHY E. WINGER v. CROWTHERS (05/27/86)

SUPERIOR COURT OF PENNSYLVANIA


filed: May 27, 1986.

DOROTHY E. WINGER, APPELLANT,
v.
CROWTHERS, INC., ANDREWS AND PINKSTONE, INC., TOOLE ASSOCIATES, INC., AND SUMMIT HOUSE CONDOMINIUM ASSOCIATION

Appeal from the Order of the Court of Common Pleas, Civil Division, of Chester County at No. 168 May Term, 1981

COUNSEL

Frederick W. McBrien, III, Norristown, for appellant.

Nancy C.M. Balliet, West Chester, for appellee.

Cavanaugh, Wickersham and Hoffman, JJ.

Author: Wickersham

[ 353 Pa. Super. Page 370]

Dorothy E. Winger appeals from the order of the Court of Common Pleas of Chester County which denied her motion to reactivate and/or reinstate a dismissed cause of action.

On October 31, 1979, appellant purchased Unit 646F, Summit House Condominiums, located in West Chester, Chester County, Pennsylvania. On October 28, 1980, she filed a complaint alleging that she had been fraudulently induced into purchasing the condominium unit by appellees Crowthers, Inc. ("Crowthers") and Andrews and Pinkstone, Inc. ("Andrews and Pinkstone"), the realtors involved in the sale; Toole Associates, Inc. ("Toole"), the firm managing the condominium; and Summit House Condominium Association ("SHCA"), a homeowners' group. Appellant claimed

[ 353 Pa. Super. Page 371]

    that all appellees knew or should have known about various latent construction defects in the condominium unit and on this basis sought recovery of the cost of repairs to her unit or, in the alternative, the diminution in value of her property caused by the defects. The complaint was inadvertently filed in Montgomery County, but was subsequently transferred to Chester County by order dated March 9, 1981. On October 26, 1983, the trial court dismissed appellant's action for inactivity pursuant to Chester County Rule 214.4.*fn1 Appellant allegedly did not receive any notice of the court's termination of this action until June 29, 1984, in the course

[ 353 Pa. Super. Page 372]

    of another action involving SHCA, one of the appellees herein.*fn2

On July 25, 1984, appellant filed a motion to reactivate and/or reinstate the dismissed action. Subsequently, after answers were filed and the deposition of appellant's counsel was taken, the court denied appellant's petition by order dated January 16, 1985. Appellant filed this timely appeal to our court in which she raises the following four issues for our consideration:

1. Is Local Rule 214.4 of the Rules of Procedure of the Court of Common Pleas of Chester County ineffective and unenforceable for failure to provide for pre-termination notice as required by Rule 1901 of Pennsylvania Rules of Judicial Administration?

2. Did the Chester County Common Pleas Court's enforcement of Local Rule 214.4 in effect dispense with notice to the parties prior to termination of the case for inactivity in violation of Rule 1901 of the Pennsylvania Rules of Judicial Administration?

3. Does Local Rule 214.4 of the Rules of Procedure of the Court of Common Pleas of Chester County, Pennsylvania

[ 353 Pa. Super. Page 373]

    and/or its implementation herein violate the due process clause of both the Pennsylvania and the United States Constitutions?

4. Did plaintiff meet its burden of proving "good cause" for the reinstatement and/or reactivation of her case dismissed, without notice to any of the parties, for inactivity?

Because of our disposition of appellant's first issue, however, we find it unnecessary to reach the merits of those issues remaining.

In her first issue, appellant alleges that Chester County Common Pleas Local Rule 214.4, which provides for the automatic termination of cases in which there has been no activity of record for a period of two years or more, without notice of an opportunity for a pre-termination hearing, is inconsistent with Pennsylvania Rule of Judicial Administration 1901(c) so as to render the local rule unenforceable.*fn3

Rule 214.4 provides for the automatic termination "by operation of law" of any matter in which there has been no activity of record for two years or more. The rule contains a provision for reactivation of a case by the court for "good

[ 353 Pa. Super. Page 374]

    cause" shown. The local rule was enacted pursuant to Rule 1901 of the Pennsylvania Rules of Judicial Administration and in fact, is identical to the suggested local rule provided in the note to that general rule. Appellant nonetheless contends that the local rule is inconsistent with the general rule because it does not contain a provision for "at least 30 days' written notice of opportunity for hearing on such proposed termination," as does the general rule.*fn4

In light of our recent disposition of the same issue in Taylor v. Oxford Land, Inc., 338 Pa. Super. 609, 488 A.2d 59 (1985), concerning the similar Allegheny County Local Rule 229, we are constrained to agree. In Taylor we stated that even were the note following Rule 1901 read to authorize the adoption of a local rule which eliminated the pre-termination notice required in the rule itself, the general rule must govern. Id., 338 Pa. Superior Ct. at 614, 488 A.2d at 62. Our court in Taylor further explained that it did not construe the note to have such a meaning, stating:

Rule 1901(c) provides two methods of giving the prescribed pre-termination notice. Notice must be given in person or by mail, or by publication "in the manner provided by rule of court . . . ." The statement contained in the [Note] clearly refers to the second method of providing notice, that is, by publication. As we understand

[ 353 Pa. Super. Page 375]

    it, the 30 days prior notice may be given periodically, by the trial court's entry of an order or adoption of a general rule providing for the publication of a list of cases by name and docket number in which there has been no activity for a period in excess of two years. After such publication, those cases listed in the notice will then be considered terminated if no action is taken within the 30 days provided. Such an interpretation thus gives meaning to both the rule and the [note]. A contrary interpretation . . . would effectively rewrite the rule and eliminate the requirement for pre-termination notice. Such an interpretation would render subsection (c) utterly meaningless and without effect. We do not believe that the Supreme Court, in adopting Rule 1901(c), intended to perform a useless act.

Id., 338 Pa. Superior Ct. at 614-15, 488 A.2d at 62.

Following Taylor, we conclude that "the clear language of Rule 1901 requires pre-termination notice and because . . . [the] local rule fails to provide for such notice, it is ineffective and unenforceable."*fn5 Id., 338 Pa. Superior Ct. at 615, 488 A.2d at 62-63. Therefore, appellant's case was not "automatically" terminated and the order must be reversed.

Order reversed, case remanded. Jurisdiction relinquished.

Disposition

Order reversed, case remanded. Jurisdiction relinquished.


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