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CITY PHILADELPHIA v. KATHERINE TASKER (09/19/88)

decided: September 19, 1988.

CITY OF PHILADELPHIA, APPELLANT
v.
KATHERINE TASKER, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County, in the case of Katherine Tasker v. City of Philadelphia, No. 529 April Term, 1983.

COUNSEL

Miriam B. Brenaman, Assistant City Solicitor, with her, Barbara R. Axelrod, Divisional Deputy in Charge of Appeals, Norma S. Weaver, Chief Deputy in Charge of Claims, and Handsel B. Minyard, City Solicitor, for appellant.

George F. Schoener, Jr., M. Mark Mendel, Ltd., for appellee.

Judges Barry and McGinley, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Barry.

Author: Barry

[ 119 Pa. Commw. Page 521]

The City of Philadelphia (City) appeals from an order of the Court of Common Pleas of Philadelphia County dismissing its motion for post-trial relief for failure to file its brief in support of those motions within the time period prescribed by a local rule of court.

Katherine Tasker (appellee) instituted an action against the City to recover damages for injuries she sustained when she tripped on a walkway while walking through Overington Park. A jury trial before the Honorable Charles P. Mirarchi, Jr. was subsequently held on the matter. The jury returned a verdict in favor of appellee. Thereafter, the City filed a timely motion for post-trial relief, while the appellee filed motions for delay damages and for sanctions and attorney's fees against the City and Maura J. Lynch, the Assistant City Solicitor who had tried the case. At the time the City filed its motion for post-trial relief, it indicated that a full transcript of the proceedings was necessary in order to write a brief in support of its motion.

The notes of testimony were eventually transcribed and delivered in two parts to all counsel; the first part on January 12, 1987 and the second on January 27, 1987. Subsequently, on April 1, 1987, the post-trial motions clerk, pursuant to subsection (c)(6) of Philadelphia Civil Rule 240 (Rule 240) sent all counsel notice that the moving party (the City) was required to file its brief within thirty-five days from the date of the notice. The City, however, failed to file its brief within that period of time. On May 12, 1987, the appellee filed a motion to dismiss the City's motion for post-trial relief because of this failure.

On May 21, 1987, Ms. Lynch wrote a letter to the trial judge, in which she claimed that the reason that

[ 119 Pa. Commw. Page 522]

    the City's brief in support of its motion for post-trial relief had not been filed within the time period prescribed by the local rule was that she had never received the notice which had been sent by the post-trial motions clerk on April 1, 1987 and that she had only seen a copy of this notice when she had received a copy of the appellee's motion to dismiss the motion for post-trial relief, to which a copy of the April 1, 1987 notice was attached. It was contended that the reason that the notice had not been received was that it was inadequately addressed.*fn1 A request for an opportunity for the City to formally respond to the appellee's motion to dismiss the City's motion for post-trial relief within thirty days after the date it had been filed and to file a brief in support of the City's motion for post-trial relief within the thirty-five day period following the receipt of the appellee's motion to dismiss the City's motion for post-trial relief was made therein.

The day after the above letter was written, however, Ms. Lynch received a copy of an order that had been entered by the trial judge on May 19, 1987, dismissing the City's motion for post-trial relief with prejudice.

[ 119 Pa. Commw. Page 523]

Pursuant to that order, judgment was entered on the jury verdict on June 4, 1987.

On May 29, 1987, the City filed a motion for reconsideration of the May 19, 1987 order. By this motion, the City requested the trial court to dismiss the appellee's motion of May 12, 1987 for the reasons that had been set forth in Ms. Lynch's letter of May 21, 1987. Appellee filed an answer to this motion in which the City's allegations were denied. On June 10, 1987, the City filed this appeal from the May 19, 1987 order. After having done so, it filed, on July 6, 1987, an amended motion for reconsideration of the May 19, 1987 order. On September 24, 1987, the trial court entered an order denying the City's motion for reconsideration.*fn2 On October 2, 1987, it then filed an opinion in support of the appealed order. Attached to the opinion were three undated affidavits; one from each of the two court reporters who transcribed the notes of testimony and one from the post-trial motions clerk.

The City contends here that the trial judge, in automatically dismissing its motion for post-trial relief pursuant to a local rule which mandated such action, acted inconsistently with Pennsylvania Rules of Civil Procedure Nos. 126 and 239(f). It also contends that the trial judge erroneously interpreted the brief filing requirement of Rule 240 and that it denied it its constitutional right to cross-examine adverse witnesses and produce witnesses of its own. This occurred, it argues, when, in its opinion, the trial court ruled on the issues raised by the City's motion for reconsideration without having afforded the City a hearing and, at the same time, solicited ex parte affidavits which provided the evidentiary support for certain findings of fact made in the opinion.

[ 119 Pa. Commw. Page 524]

Finally, the City contends that the trial court abused its discretion in dismissing its motion for post-trial relief for failure to file a timely brief in support of it while, at the same time, granting appellee permission to improve upon memoranda of law that she had filed in support of her motions for delay damages and for sanctions and attorney fees. According to the City, those memoranda were never filed with the post-trial motions clerk within the time prescribed by Rule 240. Furthermore, at the time the court granted the appellee such permission to improve the memoranda, the period for filing briefs in support of those motions had expired. Before addressing these issues, we address two other issues raised by the appellee.

Pennsylvania Rule of Appellate Procedure No. 2116(a) provides, in pertinent part, that:

[The statement of the questions involved] should not ordinarily exceed fifteen lines, must never exceed one page and must always be on a separate page, without any other matter appearing thereon.

Here, the "Statement of Questions Involved" section of the City's brief, as originally filed, violated the above rule, inasmuch as it covered two pages, with three issues appearing on the first page and the remaining issues on the second page. The appellee contends that this violation of Rule 2116(a) should result in either striking the appeal or in a limitation of the appeal to those issues appearing on the first page of the Statement of Questions. We note, however, that, after the City's brief was filed, it filed a one page replacement "Statement of Questions Involved" section, on which all five of its issues appeared. Therefore, we will not exercise the discretion that we have to sanction the City for noncompliance with Pa. R.A.P. No. 2116(a).

Appellee also contends that certain issues raised by the City in this appeal were not raised in either the City's motion for reconsideration or amended motion for

[ 119 Pa. Commw. Page 525]

    reconsideration and that, therefore, they should be deemed to have been waived for the purpose of this appeal. The City contends that it did raise all of the issues that it seeks to raise on this appeal and that the appellee is confusing failure to present issues to the trial judge with failure to present legal arguments to the trial judge.

In order for issues to be preserved for appeal, the law requires only that they be raised at the earliest opportunity. Commonwealth v. Cieri, 346 Pa. Superior Ct. 77, 94 n.7, 499 A.2d 317, 326 n.7 (1986). Here, the trial judge entered an order granting the appellee's motion to dismiss the City's motion for post-trial relief without having afforded the City the opportunity to file an answer or answering memorandum to that motion within the period of time prescribed by Philadelphia Civil Rule 140(B) for the filing of such a pleading.*fn3 Under such circumstances, the earliest opportunity the City would have had to raise in the trial court the issues that it seeks to raise on appeal would have ...


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