Cagnoli v. Bonnell

611 A.2d 1194, 531 Pa. 199, 1992 Pa. LEXIS 422

• Court: Supreme Court of Pennsylvania
• Decided: June 17, 1992
• Docket: 23 W.D. Appeal Docket 1990
• Status: Published

Opinions

OPINION

ZAPPALA, Justice.

This is an appeal by Pearl Cagnoli from an order of the Superior Court, which affirmed an order of the Court of Common Pleas of Erie County, which granted appellee’s motion for judgment on the pleadings, 389 Pa.Super. 644, 560 A.2d 822. We granted allocatur to consider whether proper notice was given to appellant pursuant to Pennsylvania Rule of Civil Procedure 1034 and Erie County Rule of Court 304(d). Finding that these rules have been violated, we now reverse.

Appellant brought this action to recover damages for personal injuries which she suffered in a fall down the stairs at the home of Helen Bonnell on February 23, 1983. As a result of her fall, Mrs. Cagnoli sustained serious injuries to her right elbow, her left thumb and her right collar bone which resulted in seven hospitalizations and eight surgical procedures. She also sustained injury to her head as well as miscellaneous bruises and contusions generally to her body.

A writ of summons was filed on February 20, 1985; the complaint was filed March 14,1986.¹ In appellant’s complaint, she alleged that she was a social guest in the home and that Mrs. Bonnell had been negligent in failing to use reasonable care in the design, construction, and maintenance of the stairway, and in failing to warn the appellant of the dangerous conditions presented.

Appellee filed an answer and new matter in which he summarily raised the affirmative defenses of the statute of limitations, and also recited various factual averments in support of the affirmative defenses of comparative negligence and assumption of the risk on the part of the appellant. Appellant never filed a reply to appellee’s new matter.

Following discovery which included interrogatories to and the sworn deposition of the appellant, this matter was listed for a jury trial during the April, 1988 term of the Court of Common Pleas of Erie County, Pennsylvania. On Friday, April 15, 1988, a jury was empaneled and trial was scheduled to commence on Monday, April 18, 1988.

Immediately before the trial began on Monday morning, appellee’s counsel presented two written motions; a Motion in Limine regarding appellant’s expert witnesses, and a Motion for Admission and/or Judgment on the Pleadings based upon the lack of a reply to new matter. Following brief arguments on the motions, the trial court entered an Order dated April 18, 1988, granting both motions and directing that judgment be entered in favor of the appellee. The empaneled jury was then dismissed.

The appellant filed a Motion for Reconsideration on May 6, 1988, of the Order of Court entered on April 18, 1988.² On May 13, 1988, the trial court entered an Order denying said motion. A Notice of Appeal to the Superior Court was then filed by the appellant on May 17, 1988. The Superior Court affirmed, finding that appellant had waived any claim of error below.

The Superior Court based its decision upon the in-chambers discussion held on the morning the Motion for Judgment on the Pleadings was presented. That Court determined that, since appellant’s counsel did not present the issues in this appeal to the Common Pleas Court until the filing of the Motion for Reconsideration, counsel failed to raise them at the first possible instance and is therefore barred from raising them in later challenges to the trial court’s ruling or on appeal.

While it is well settled that issues not raised by motion or complaint before the trial court in the first instance may not be raised in later challenges to that court’s ruling or on appeal, Pa.R.A.P. 302(a); Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114, 117 (1974), in this instance, strict compliance with the rule is inappropriate. Pa.R.C.P. 126. Trial counsel had neither notice nor an opportunity to research and prepare cogent legal arguments regarding the motions that were presented the morning he was expecting to begin trial. Therefore, appellant’s first opportunity to raise these issues was at the time of filing his Motion for Reconsideration. Consequently, appellant’s issues were preserved for appellate review.

Pennsylvania Rule of Civil Procedure 1034, which permits judgment on the pleadings, provides:

a. After the pleadings are closed, but within such time as not to delay trial, any party may move for judgment on the pleadings.

b. The court shall enter such judgment or order as should be proper on the pleadings, (emphasis added)

Clearly, the drafters of Rule 1034 did not envision that a Motion for Judgment on the Pleadings would be submitted, let alone considered, on the very morning that trial is to begin and a jury has been empaneled. The party opposing the motion must have a full and fair opportunity to argue against the motion. The opposing party here, the appellant, was not afforded this opportunity.

In addition, Erie County Rule of Court 302 provides:

Argument Lists and Arguments.

(a) All motions and petitions requiring decision and other matters not within the scope of pre-trial Rule 212.1, shall be listed for argument by any party filing a Praecipe and Brief with the Prothonotary on or before the date designated by the Court for the closing of the argument list for a particular month.

(b) Preliminary objections not raising an issue of fact, a motion for judgment on the pleadings, ... shall be placed upon the argument list within twenty (20) days of the filing on said motion by the moving party filing a praecipe for the argument list which must be accompanied by the moving party’s brief.... If the briefs of either the moving party or responding party are not timely filed within the period above stated unless the time shall be extended by the court or by stipulation, the court may then, or at any time subsequent thereto ... [take appropriate action] ...

(e) The responding party must then file its brief within twenty (20) days after receipt of the moving party’s brief....

Further, Erie County Rule 304(d) provides:

Notices

(d) Opposing counsel and unrepresented parties must be given at least forty-eight (lp8) hours notice prior to the presentation to the Court of any motion or petition requesting an immediate order of the Court. The notice must give the date and time when the motion or petition will be presented to the Court and must include a copy of the proposed motion and order____ (emphasis added)

Appellee had the opportunity over a period of almost two years to file his Motion for Judgment on the Pleadings in compliance with the procedures required by the local rules in conjunction with Pa.R.A.P. 1034 for timely filings. He did none of these. As a consequence, the appellant was deprived of the opportunity to fully and fairly argue against both of appellee’s motions.

Finally, in support of its action, the trial court found that “not only was this motion submitted so as not to delay trial, but the granting of the motion eliminated the necessity for a trial.” Trial Court opinion at 3. (footnote omitted). However, this rationale creates a “Catch-22” situation and would eliminate the need for timely filings in every instance so long as the party filing untimely is successful. This we will not permit.

The order of the Superior Court is reversed, the judgment of the Court of Common Pleas of Erie County is vacated, and this matter is remanded to the Court of Common Pleas of Erie County for trial.³

LARSEN, J., joins in this majority opinion and files a concurring opinion. McDERMOTT, j., concurs in the result. NIX, C.J., files a dissenting opinion.

1 . Helen Bonnell died on February 22, 1986. Her son, Chester Bonnell, as executor of her estate, was substituted as the named defendant prior to the filing of the answer to the complaint.

2 . We note that Attorney Robert B. McCullough acted as counsel for the appellant on all matters pre-trial and matters relative to the Order issued by the trial court on April 18, 1988. Thereafter, on all matters, Attorney James P. Lay assumed representation of the appellant.

3 . In light of our disposition, it is unnecessary to address any other issues raised by the appellant. In any event, since the order granting the appellee's motion in limine is interlocutory, consideration of that order is inappropriate.