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EDMOND J. TESSIER AND REGINA TESSIER v. PETER AND JEAN PIETRANGELO AND CENTRAL EXTERMINATING COMPANY (03/06/87)

SUPERIOR COURT OF PENNSYLVANIA


filed: March 6, 1987.

EDMOND J. TESSIER AND REGINA TESSIER, APPELLANTS,
v.
PETER AND JEAN PIETRANGELO AND CENTRAL EXTERMINATING COMPANY

Appeal from the Order of the Court of Common Pleas, Civil Division, of Bucks County at No. 81-04173-05-2.

COUNSEL

Gary R. Block, West Chester, for appellants.

JoAnne W. Rathgeber, Trevose, for appellees.

Wickersham, McEwen and Beck, JJ.

Author: Wickersham

[ 361 Pa. Super. Page 211]

This is an appeal from an order entered on May 15, 1986, by the Honorable Isaac S. Garb, President Judge of the Court of Common Pleas of Bucks County, denying appellants' application to reactivate this case which was terminated by local rule. We reverse.

[ 361 Pa. Super. Page 212]

On May 5, 1981, appellants, Edmond J. and Regina Tessier, filed a complaint alleging that appellees concealed termite damage in the home sold to them. Appellees, Peter and Jean Pietrangelo, countered with preliminary objections to the complaint on June 5, 1981. Appellants then filed an answer to the preliminary objections as well as a supporting memorandum.

No further action occurred until September 30, 1983, when a termination notice issued pursuant to Bucks County R.C.P. 900*fn1 was mailed to appellants. Thereafter, on November 7, 1984, the action was terminated by the court due to inactivity. The appellants filed an application to reactivate the matter on August 23, 1985. The lower court denied same citing appellants' failure to explain the period of inactivity before the notice of termination was mailed and the failure to act promptly after the notice was mailed in support of its order. Appellants filed a timely appeal from this order.

On appeal appellants raise the following issues:

A. The trial court erred in refusing to grant buyers [sic] application to reactivate their cause when the buyers promptly filed their application after discovery of the termination and when the sellers failed to present evidence of prejudice.

B. The Honorable Trial Judge erred in failing to grant the buyers the right to oral argument prior to the entry of an order.

Brief for Appellant at 3.

Appellants' second issue calls upon us to determine whether Bucks County C.P.R. 266*fn2 conflicts with Pa.R.C.P.

[ 361 Pa. Super. Page 213]

No. 211*fn3 so as to render the local rule ineffective and unenforceable:

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,

[ 361 Pa. Super. Page 214]

    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.

Davison v. John W. Harper, Inc., 342 Pa. Super. 560, 563, 493 A.2d 732, 734 (1985).

Instantly, the Bucks County local rule dispenses with oral argument on all motions, rules, preliminary objections, motions for summary judgment, etc., except "oral argument as may be required by the Judge." This is in direct conflict with the clear and unambiguous language of Pa.R.C.P. No. 211 which provides for a right to argue any motion by a party or his attorney. The local rule is thus invalid and cannot be followed.

In choosing to ignore appellants' praecipe for oral argument entered on May 9, 1986, and, instead, proceeding in the summary fashion prescribed by local rule in denying oral argument, the lower court has violated the express mandate of Pa.R.C.P. No. 211.*fn4 Order vacated, and the case remanded for proceedings consistent with this opinion. Jurisdiction is relinquished.

Disposition

Jurisdiction is relinquished.


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