Straff v. Nationwide Mutual Fire Insurance , 230 Pa. Super. 403 ( 1974 )

Opinion by

Price, J.,

We are here presented with the question of whether appellants’ failure to comply with a local rule of court pertaining to the filing of a Motion for a New Trial constitutes an abandonment of the motion. The lower court held that there was an abandonment and granted a motion to quash appellants’ post-trial motions. We agree and, therefore, will affirm.

Appellants initiated this cause of action claiming $93,500.00 loss by reason of a fire which destroyed their home on December 1, 1970. Appellee had denied the claim and defended this action, based upon its claim that the fire insurance policy was void by reason of a violation of the conditions of the policy, and, specifically, that the fire was set directly by appellants or at their instigation and under their direction.

The jury rendered a verdict in favor of appellee on November 14, 1972. Appellants filed a Motion for a New Trial on December 1, 1972. Montgomery County Civil Rule 252 provides: “. . . counsel filing (motions for new trial) shall forthwith send copies in triplicate thereof to the trial judge. The duplicate copies shall immediately thereafter be filed with the official court stenographer and with the court administrator. . . .” Appellants acknowledge that they did not comply with the mandate of this rule, and that they took no further affirmative action on the record until, in response to appellee’s Motion to Quash Post Trial Motions filed March 26, 1973, on May 30, 1973, they filed an Answer to the Motion to Quash setting forth matters which they contend entitles them to be permitted equitably to move forward with their Motion for a New Trial. Appellants contend that their failure to comply with the local rule of court should be excused because of difficulty encountered in raising sufficient funds to further retain counsel and pay costs and the reluctance of their counsel to incur the costs of appeal without a firm commitment from them. These costs and fee arrangements were further complicated because Montgomery County counsel were not the original trial attorneys, but were only later engaged to handle the appeal. Agreement on an acceptable forwarding fee arrangement also contributed to the delay.

This was very properly covered in the opinion of President Judge Groshens of the Montgomery County Court of Common Pleas:

“These financial and practical problems may explain but they do not excuse plaintiffs’ noncompliance with Rule 252. Motions and rules play an important part in modern practice, and the tendency is to enlarge rather than restrict their operation. Much of the procedure outlined by motions and rules is governed by local county rules, the validity and vitality of which are no less than of those rules promulgated on a state-wide basis.

“It is understandable that plaintiffs’ counsel did not want to incur the expense of transcribing and printing the record without a firm financial commitment from the client. In denying defendant’s assertion that plaintiffs have generally failed to move forward with their motion for new trial, plaintiffs’ counsel refer to their correspondence with the forwarding attorney in Philadelphia, their efforts to have plaintiffs raise the requisite funds to finance the appeal, and the attorneys’ attempts to work out a fair forwarding fee arrangement.

“To our mind, however, these endeavors helped little or not at all to move the matter forward within the judicial process. Instead, the communications demonstrate that the attorneys and the client were aware that time was an important factor. Though so apprised, plaintiffs failed to move the matter forward. The failure of a petitioner to press a motion for new trial may, in a proper case, be regarded as an abandonment thereof. 6A Standard Pennsylvania Practice 174.”

Where, as here, the rule is clear and precise, it cannot be claimed that there is difficulty in interpretation and, unless a lower court has made a clearly erroneous interpretation, we have held we will adopt the lower court’s interpretation. New Castle Metal Products Co. v. Campbell, 131 Pa. Superior Ct. 367, 200 A. 118 (1938); Caples v. Klugman, 202 Pa. Superior Ct. 517, 198 A. 2d 342 (1964). Only when a lower court’s construction amounts to an abuse of discretion will an appellate court interfere. Nerkowski v. Yellow Cab Company, 436 Pa. 306, 259 A. 2d 171 (1969); Budget Laundry Co. v. Munter, 450 Pa. 13, 298 A.2d 55 (1972); Caples v. Klugman, supra. No such abuse exists in the case presently before us.

Further 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 order of the lower court quashing appellants’ Motion for a New Trial is affirmed.

Jacobs, J., took no part in the consideration or decision of this case. Spaeth, J., concurs in the result.