Tradesman Rod & Gun Club v. Engle

• Decision Date: 02 January 1976
• Docket Number: 1093 in equity
• Parties: Tradesman Rod and Gun Club v. Engle
• Court: Pennsylvania Commonwealth Court

75 Pa. D. & C.2d 492

Tradesman Rod and Gun Club v. Engle

No. 1093 in equity

Common Pleas Court of Northumberland County, Pennsylvania

January 2, 1976

Rule to show cause why motion to remove nonsuit should not be filed nunc pro tunc.

Jack C. Younkin, of Wiest & Younkin, for plaintiff.

Myron M. Moskowitz, for defendants

OPINION

KIVKO P.J.

Plaintiff filed an action in equity for the specific performance of an agreement to sell and convey real estate; with an abatement in the purchase price. At the conclusion of plaintiff's testimony, defendants moved for a compulsory nonsuit. On May 22, 1973, the court sustained defendants' motion for a compulsory nonsuit and dismissed plaintiff's complaint. On June 15, 1973, plaintiff presented a petition for a rule to show cause why a motion to remove the nonsuit should not be filed nunc pro tunc, on which the court granted a rule to show cause why plaintiff should not be permitted to file such a motion.

Rule 922 of the Northumberland County Rules of Court provides that a motion to take off a nonsuit " must be made, and the reasons on which the motion is grounded must be filed within four days after the... nonsuit."

Counsel for petitioner has stated that immediately following defendant's motion for a nonsuit and before the filing of the written opinion disposing of it, he had been instructed to appeal from the court's decision if it sustained the motion. While preparing a motion to remove the nonsuit on the weekend of June 9th, he discovered that the local rule of court provided that such a motion should be filed within four days instead of 20 days on which he was relying. He spoke to the hearing judge on June 11th (the twentieth day), advising him of his error and stated that it was his intention to file a motion nunc pro tunc but that the necessity of mailing the new motion to Philadelphia for verification by his client would cause a few additional days of delay. The new motion was filed June 15, the twenty-fourth day after the entry of the opinion.

Respondent contends that the rule of court is mandatory. However, a time limitation on such a motion prescribed by a local rule " may, in the discretion of the Court, be waived, if the interests of justice require it. Thus, even though the time permitted by court rule for seeking the removal of a compulsory nonsuit has expired, the court in its discretion may allow a motion for removal of nonsuit" : 6 Standard Pa. Pract. § 92, p. 378; Murray v. Hoffman, 115 Pa.Super 148, 175 A. 293 (1934).

Plaintiff relies on Straff v. Nationwide Mutual Fire Insurance Co., 230 Pa, Superior Ct. 403, 326 A.2d 586 (1974), in which the appellate court sustained the trial court's quashing of defendant's motion for a new trial where defendant failed to comply with the local rule of court pertaining to the filing of the motion. The Superior Court said, at 230 Pa.Super 407;

" It cannot seriously be contended that procedural rules either at the state or local level are not an absolute essential to the orderly administration of justice and the smooth and efficient operation of the judicial process. The lower court has correctly stated: 'The sheer number of cases and appeals make it imperative the rules be strictly enforced. Anything less would disrupt the already tenuous flow of trials and resulting appeals."

The Straff case does not support plaintiff's 'contention that Rule 922 is mandatory. It merely sustained the principle that the interpretation and application is within the discretion of the lower Court and that the use of discretion, if not abused, will be sustained on appeal. In the opinion of the minority in that case, the lower court's insistence on strict compliance of its rule was an abuse of discretion. The rationale behind such a conclusion was ably stated by Judge Hoffman (230 Pa.Super at 408-09):

" I am... sympathetic with the lower court's reasons for requiring compliance with such rules at the trial level. I cannot agree that such harsh measures as the quashing of post-trial motions, which would in a civil case preclude an appeal to this Court, should be employed where the rule prescribes certain ministerial acts which the court require in the perfection of an 'appeal' and where the opposing party has not been prejudiced by the failure of a party to adhere technically to such rule.

" In applying the Supreme Court's Rules of Civil Procedure, we are guided by two overriding policies that appear in separate rules. First, Rule 126 dictates that '... The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.' In another rule, the Supreme Court authorizes the trial court to extend or shorten the time prescribed by any rule of civil procedure for the doing of any act. Pa. R. C. P. 248. Our Court has repeatedly restated this policy that '(t)he niceties of procedure and pleading make fine intelligence games for lawyers but should never be used to deny ultimate justice. This is the reason for our modern approach to rules of civil procedure.' Godina v. Oswald, 206 Pa.Super 51, 55, 211 A.2d 91, 93 (1965); see also, Commonwealth ex rel. Morgan v. Smith, 209 Pa.Super 364, 228 A.2d 6 (1967), rev'd on other grounds, 429 Pa. 561, 241 A.2d 531 (1968)."

The underlying basis for such an approach in determining the limits on the discretion the lower court may exercise is not to preclude a litigant from the opportunity to be heard on the trial or appellate level because of an inadvertent failure on the part of counsel...