Samuel BASSION v. Frances JANCZAK, Appellant.
Superior Court of Pennsylvania.
May 7, 1982.
Argued Nov. 17, 1981.
445 A.2d 521 | 299 Pa. Super. 195
Abe Lapowsky, Philadelphia, for appellee.
Before CERCONE, President Judge, and McEWEN and HOFFMAN, JJ.
OPINION
McEWEN, Judge:
Appellant contends that the Common Pleas Court erred in dismissing her petition to open a default judgment for her purported failure to file a timely supporting brief in compliance with Montgomery County Rule of Civil Proсedure 302(d).
On April 23, 1979, a confession of judgment was entered on a judgment note in the amount of $20,000 against appellant and Thomаs Janczak in favor of appellee. Appellant filed a petition to open judgment on August 7, 1980 in which she averred inter alia, that her purported signature on the note was a forgery.
Thе Common Pleas Court dismissed the petition of appellant to open judgment because of her apparent fаilure to file, pursuant to Montgomery County Rule of Civil Procedure 302(d), a supporting brief within thirty days of the date upon which the petition to open judgment was filed. This appeal followed.
Appellant argues that she did comply with Rule 302(d) by filing a brief contemрoraneously with the petition to open judgment and, thus, the court abused its discretion by dismissing her petition to open judgment. While the record does not reflect that appellant filed a brief with the petition, counsel for appellant stated during the presentation of oral argument that the required brief had been affixed to the petition and filed as part of the petition but that the brief was detached from the petition by the Prothonotary and returned to her office. Through inadvertеnce on the part of the secretarial staff of the office of counsel for appellant, the fact thаt the brief was misfiled with the Prothonotary and subsequently returned was not brought to her attention.
We believe that in this specific situation and under these narrow cirсumstances this objective is better achieved if the appellant is permitted to offer a defense. We are, thеrefore, compelled to vacate the order of the Common Pleas Court dismissing the petition to open judgment аnd remand the case for further proceedings consistent with this opinion. Jurisdiction of this case is relinquished.
Order vacated and case remanded.
HOFFMAN, J., files a dissenting opinion.
HOFFMAN, Judge, dissenting:
I dissent. I would affirm the lower court‘s order dismissing appellant‘s complaint pursuant to Montgomery County Rule of Civil Procedure 302(d) because: (1) contrary to the majority‘s conclusion, the record contains no evidence that the brief was ever filed anywhere; and (2) aрpellant‘s only excuse avers nothing more than the mere inadvertence of counsel.
Astonishingly, еven if we could consider the allegations in appellant‘s brief, they do not assert a reasonable excuse fоr violation of the local rule, because they aver nothing more than the mere inadvertence of counsel. Although this Court has willingly afforded procedural and substantive relief to parties presenting a reasonable excuse for noncompliance with Montgomery County Rule of Civil Procedure 302(d),* in all cases “the reason given for the noncomplianсe [must be] more than mere inadvertence of counsel.” Haney v. Sabia, 59 Pa.Commonwealth Ct. 123, 129, 428 A.2d 1041, 1044 (1981). See generally Horan v. R. S. Cook & Associates, Inc., 287 Pa.Superior Ct. 265, 430 A.2d 278 (1981). Appellant admits in her brief that her counsel‘s office staff wаs notified promptly of the correct procedure for filing the required brief, and that her counsel‘s office staff failеd to follow those instructions. She thus avers nothing more than mere inadvertence of counsel as her only excuse. Consеquently, the lower court did not abuse its discretion in dismissing her complaint, and I would thus affirm its order.