HomeMy WebLinkAbout92-3089 CivilCARL D. HABIG and
ANNE H. HABIG,
Plaintiffs
Ve
MARY JANE SPENCER, t/a
and d/b/a WINDSOR RIDGE
HOMES, and JOHN H.
HOCKER,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 3089 CIVIL 1992
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., March 18, 1998.
In this construction case, Plaintiffs have appealed to the
Pennsylvania Superior Court from an order denying their request to
file a motion for post-trial relief nunc pro tunc. The basis for
the request was inadvertence of counsel, and it was opposed by
Defendants.
This opinion in support of the court's order is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
This building construction case arises out of the construction
by Defendant Mary Jane Spencer, trading and doing business as
Windsor Ridge Homes, of a house for Plaintiffs Carl D. Habig and
Anne H. Habig. Defendant John H. Hocker served as agent and
foreman for Defendant Spencer.
Following a five-day bench trial in 1994, the court found in
favor of Plaintiffs in the amount of $30,726.28 and additionally
excused their payment of an unpaid balance on the $160,000.00
contract price of $20,000.00; the verdict, in effect, withheld from
the builder about a third of the agreed-upon price due to poor
quality work or incomplete work. Plaintiffs appealed from the
NO. 3089 CIVIL 1992
judgment entered in their favor, contending that more contract
damages should have been awarded and that a claim under
Pennsylvania's Unfair Trade Practices and Consumer Protection Law
should have been sustained.
On April 11, 1997, the Superior Court issued an order
sustaining Plaintiffs' position in part, and remanding the case to
this court for an award of certain additional contract damages and
an award under the Unfair Trade Practices and Consumer Protection
Law. Following a re-trial pursuant to the Superior Court's order,
the court issued an order in open court on October 20, 1997,
awarding Plaintiffs additional contract damages in the amount of
$9,500.00 and damages under the Unfair Trade Practices and Consumer
Protection Law in the amount of $5,000.00.~
On November 7, 1997, Plaintiffs filed a request to file a
motion for post-trial relief nunc pro tunc. The request cited
inadvertence of counsel in failing to file a timely motion, and
indicated that Plaintiffs wished to challenge the amount of damages
awarded to them under the Unfair Trade Practices and Consumer
Protection Law.
In response to Plaintiffs' request, the court issued a rule
upon Defendants to show cause why the request should not be
granted. Defendants filed an answer to the rule, vigorously
~ This order, which was issued in open court in the presence
of counsel and the parties, was entered on the docket by the
prothonotary on October 24, 1997.
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NO. 3089 CIVIL 1992
opposing any waiver of the ten-day period prescribed under
Pennsylvania Rule of Civil Procedure 227.1. On December 5, 1997,
the court entered the following order, from which Plaintiffs now
appeal:
AND NOW, this 5th day of December, 1997,
upon consideration of Plaintiffs' Petition for
Leave To File a Post Trial Motion, and of
Defendant[s'] Answer to Petition for Leave To
File a Post-Trial Motion, Plaintiffs' petition
is DENIED. See Gallagher v. Bensalem, 142 Pa.
Commw. 604, 598 A.2d 325 (1991).
DISCUSSION
In Gallagher v. Bensalem, 142 Pa. Commw. 604, 598 A.2d 325
(1991), the Pennsylvania Commonwealth Court upheld a lower court's
refusal to grant a party's request to file a motion for post-trial
relief nunc pro tunc, where the basis for the request was
inadvertence of counsel and where an objection to the request was
lodged by the opposing party. In affirming the order of the trial
court, the Commonwealth Court stated as follows:
[W]e hold that counsel's mistake in
determining the deadline for filing post-trial
motions in the present case is not a legally
cognizable excuse which would warrant non-
compliance with Rule 227.1, and the resulting
prejudice to the objecting adverse party,
acceptable. The Rules of Civil Procedure
should not be treated lightly by attorneys or
the courts and deviation should only be
permitted for sound reason.
Id. at 611, 598 A.2d at 328.
In this case, the court believed that under all the
circumstances, including Defendants' objection to Plaintiffs'
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NO. 3089 CIVIL 1992
request, the basis for the request, and the authority cited above,
Plaintiffs' request to file a motion for post-trial relief should
not have been granted, and the court accordingly declined to do so.
Andrew C. Sheely, Esq.
127 South Market Street
P.O. Box 95
Mechanicsburg, PA 17055
Attorney for Plaintiffs
Sally J. Winder, Esq.
701 East King Street
Shippensburg, PA 17257
Attorney for Defendants
: rc
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