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HomeMy WebLinkAbout97-04922 RADKAR XNC., Plaintiff Xn the Court of Common Plea. of Cumberland County, Pennaylyania Civil Dividon No. 97-4922 Y. HXOH CONSTRUCTION, Defendl'mt PIU\JlCIPIl lINn POWER OF ATTORNIlY FOR SATISFACTION ANDIOR TIlRMINATION TO THIl PROTHONOTARY OF SAID COURT. You are hereby authorized, empowered, and directed to enter, a. indicated, the following on the records thereof. -..L- The within suit i. Settled, DiBcontinued, Ilnded and Coat. paid. The within auit ia Settled, Diecontinued, Ilnded lIITH PRllJUDICI and Coete paid. The within suit is Settled, DiBcontinued, Ilnded lIITHOUT PRllJUDICI e,nd Costs paid. SATISFACTION of the Award or Verdict in the within suit iB acknowledged. Satiefaction cf Judgment, with intereet and coete, in the within matter ie acknowledged. O!IIR. Date. 10 / ~~ /q7 . I /0 /41/17 I I Date. COST PAYMENT VERIFICATION I UNDmRSTAND THAT THIl ABOVE ACTION CANNOT BIl FILED AND DOCKETIlD UNTIL ALL COSTS HAVE BIlIlN PAID, INCLUDING SHERIFF'S COSTS, AND HEREBY VERIFY THAT ALL COSTS HAVE BIlIlN PAID, I UNDERSTAND THAT FALSE STATEMENTS HERlIN ARB AND MADI SUBJIlCT TO THIl PIlNALTIES OF 18 Pa.C.S. SEe 49 ~ RELATING TO UNSWORN FALSIFICATION TO AUTHORITIES. f~~ft.f-.,..~e couna / ~ - - Radmar, Inc. 431 NOI1h Geyers Church Road Middletown, PA 17057.3397 Plaintiff/Respondent - c~ (l"~,J... Cf/J'/9'1. . . ~./p' John J. Mlravich, Esquire For Defendant/Petitioner " :988 " " , I;. " . , , , " ! .,1 '" , ' " ," .2. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL DIVISION RADMAR, INC. plaintiff v. NO. q 1- Y 9.2.z. (,'.vJ "";.4.- HIGH CONSTRUCTION Defendant DEFENDANT HIGH CONSTRUCTION'S MOTION TO PERMIT APPEAL FROM DISTRICT JUSTICE JUDGMENT NUN~PRO TUNC Pursuant to Cumberland county Rule 206-2(a), Defendant High Construction ("High"), by its attorneys, Stevens & Lee, files the following motion requesting that High be permitted to file an appeal from a district justice judgment nunc pro tunc, which appeal was attempted to be docketed one day late.1 Although counsel's paralegal mailed the appeal two days before the deadline, rather than Federal Expressing it, as directed by counsel, the appeal was not received until gnl day after the deadline. Because counsel's request is in compliance with ~ v. Unemplovment ComDensation Bd. of Review, 543 Pa. 381, 384, 671 A.2d 1l.30 (1996), High respectfully requests that its motion be granted. In support hereof, High avers the following: 1. On July 3, 1997, plaintiff Radmar Inc. tiled with District Justice Ronald E. Klair a civil complaint against High. 1 Pursuant to Cumberland County Rul~ 206-2(a), High informs the Court and the Court Administrator that no judge has previously ruled upon any other issue in this matter or a related matter. 1 2. The hearing on this complaint was held before District Justioe Klair on August 5, 1997, at 10 a.m. 3. Defendant appeared at the hearing without counsel and presented a defense to plaintiff's claims. 4. A judgment was entered on August 6, 1997 in favor of the plaintiff. 5. After the district juetice judgment was entered, High discovered that, because it is a corporation, it had to retain counsel to file any pleadings, including an appeal, in the Court of Common Pleas. Therefore, on Tuesday, September 2, 1997, High engaged counsel to file an appeal. 6. The next day, wednesday, september 3, 1997, counsel for High, John Miravich, prepared and signed a notice of appeal, and issued a check for costs. A true and correct copy of these documents are attached as Exhibit A. 7. Counsel's paralegal, who was unaware that the appeal was due by Friday, September 5, 1997, rather than Federal Expressing the appeal papers, placed them in the mail to the Prothonotary. The envelope containing the appeal papers was metered September 3, 1997. 8. Completely beyond the control of both counsel, who remained unaware that the appeal papers were not Federal Expressed, and his paralegal, the mail apparently was not picked up on september 3, 1997 at the receptacle owned by the Postal Service but was picked up the next day. The envelope, therefor., 2 contains a second postmark of Thursday, september 4, 1997. (The envelope remains in the possession of the Prothonotary's Office.) 9. The Prothonotary did not open the envelope containing the appeal papers until Monday, September a, 1997. 10. Because the Prothonotary lacked discretion to accept the appeal, which was 2D& day late, the appeal papers were returned to counsel on September 10, 1997. A true and correct copy of the letter with a handwritten notation by the Prothonotary and the envelope in which it was enclosed are attached as Exhibit B. 11. Normally, all filings of court papers are performed by counsel's secretary, who has been instructed to Federal Express all such filings. Due to the fact that counsel's secretary was performing a court filing in another county, counsel's paralegal agreed to assist in filing these appeal papers. Unlike counsel, who attended law school in Cumberland County and knows the distance from Reading, counsel's paralegal is formerly from New Jersey. 12. An appeal nunc pro tunc is proper if the moving party can show that "an operational breakdown of the attorney's internal office procedures" occurred which is "beyond the attorney's control and is non-negligent." Paul v. Commw. Dept. of TransD., 651 A.2d 711, 713 (1994), ~ng, Bass v. Commw., 485 Pa. 256, 401 A.2d 1133 (1979) (no negligence found and late appeal permitted because secretary was out sick six days and 3 appeal had not been filed.) Recently, the Pennsylvania supreme Court redefined the test for appeals nunc pro tunc: . . . where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses i9 of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. Cook v. Unemclovment Compensation Bd. of Revi~~, 543 Pa. at 384-85, 671 A.2d at 1131 (1996). 13. This test was a slight relaxation of the prior test set forth in~. There, a secretary, who was responsible for filing the appeal, became ill and did not return until a week later. The error was not discovered by the attorney or any other secretary apparently because that sam~ secretary was the person responsible for checking that secretarial work was properly performed. The pennsylvania supreme Court held that this conduct was non-negligent, and the late appeal was permitted. ~ AlAQ, Cook v. Unemclovment compensation Bd~of Review, 543 Pa. 381, 384, 671 A.2d 1130, 1131 (1996) (Supreme Court reversed Commonwealth Court because it had read the ~ decision too narrowly; late appeal permitted because appellant was ill). 14. In a similax' case to the one at bar, Paul v. Commw. Dept. of Transp., 651 A.2d 711, 712 (Commw. 1994), the Commonwealth Court affirmed the granting of an appeal nunc pro tunc when the attorney mailed the appeal on April 12, two day. before an April 14 deadline, but it was not docketed by the 4 Prothonotary until April 19, five days after the deadline. There, the Prothonotary was uncertain when the appea,l was received. 15. The facts here are virtually identical to those in fAUl, where the Commonwealth Court permitted an appeal nunc pro tunc. Although, here, the Prothonotary is certain that it did not receive the appeal papers until ~ business day after the deadline, the remaining facts are identical. The appeal here, as in fAYl, was mailed two days before the deadline but not docketed by the Prothonotary in time. 16. Moreover, High meets the standard under~. First, the actions of counsel and his paralegal were reasonable and not negligent. Normally, filings of all court papers are performed by counsel's secretary who has been instructed to Federal Express such filings. Here, due to the secretary performing another filing, counsel was assisted by his paralegal. Second, counsel attempted to file the appeal only ~ business day after the deadline. Third, upon receiving the documents back from the Prothonotary, counsel filed this motion the next day. Fourth, no prejudice will occur to plaintiff because the proceeding is just beginning. 17. Counsel respectfully suggests that his office's actions are in compliance with the standard set forth in ~. Therefore, High requests that its motion to permit this appeal nunc pro tunc be granted. 5 " " ,~. . I~ '" II) Ul '-110..-0 PIP'I'*........ APIOIIII 8 ~ o ;;, IX ~ i~ i~ ~ ; i !j = ~ i ... = ... .,. " I!!'" ~.... ~~ S eN in i~ .. - .. .. 0 , . , ' .~t,: 0 Q 0 ~ 0 ... LiJ .. ~ ~ II: r1l ~ ~ III ~ 0 5l~ .. - ~1~lu ~ & " Q U lll~ ru I Z > ~lf r1l II: ru !r;l .. a: 111 .... ~ ... UI ~ ~!~~ ~ ~ lI:LiJ d3~ 0 " ~ ...~ .J ~ ~~ c LiJ Q,U U :> ... LL I > ... H~ I ~ ! lL LL I ...-.-.-- ...11 , , , , " " " " I', , , " " " ""\ , , , ~ i " '" , @ " i ,I,. i , , . , II . R I, I ~ 1,' , ~ " . ...) " CQMMON~EAL TH 0' PENNSVLVANIA COURT 0' COMMON PLEAS NOTICE OF ,~PEAL FROM JUOICIAL OISTRICT DISTRICT JUSTICE JUOGMENT '", i" COMMON PLEAS No. . NOTICE OF APPEAL NotIce is given that the appellallt has filed in the abovll Court of Common Pleas an appeal from tho judgment rendered by the District JUSliu 0" the daw and In the case mllntioned billow. CITY _ ~~]O~__.3':05.-';~~".id' B. IT"'''. IU.1r ~.o... ;.joiilii..-';~NT.'.+'-- "__n_______."_.____ ---~.-~~ lIiqh Construction :"""iJOiiC..Q"';' ;"'io~'i:'':'-I.-ANT-~'- I'" ca.. 11153 "-'i,lU_ Penll W<C\Y I P.O. Hox 10008 Lancuter PA 17605 :;~;~u;;M;"'__~;_~.:.:~~l'~~;~'~~~-I~~~;-~'~:~:--~;l , ., \ >, ,.~':'''''''':'. '! <':1....,... "0'1 , , . ..,:-r. '''''TUII If' ",.. N't 0" ""1 A1''toi'{.""",O.'l A".'" ~;':!7-165 ......._J:~_O_tl.I\__~~_~i~~V~Ch/. ~:q\lh. TIllS block will be sIgned ONLY when Ihis Ilf.ltatlon is rl!qulr~u umJl!r Pa, R.CP.J.P, No, 10088. ThiS Notice of Appeill, whrm n.!cellJijcl In the DIstrict JustIce, wm operate as J SUPERSEDEAS to the judgmflllt for possession in this casu. ,;' I S'9MIUf. ,f Prulh"nollJry t}f OflplJr'l If appellant was Claimant 1_ Pa, R,C.P.J,P, No. 100//6) in action bIlfo" Di.trlcr JU.tICfl, f,. MUST FILE A CQMPLAINTwlrhll/ """'Ir ,~! . ',,' dav..'t"fIlingh/.NOfICEO'A~II.I.;' ,.. .,;' ":, , '.I...:,~,," I ",-, '~. I , \,r ".',' COPY TO BE SI:flVl:[J ON DISTFlIC r .JUS lIel: ...,...,... , , I \" } .\,' ...",.- - ... 1'--...... ,.~.:.-.~.. f_ -'1 , , , ;" i'.=. ,.:;I' ';.0 !, , .:.1 I'; ..-.~ ~, !:-'.~ .. "-/ 11.lj;. -- ',.1 <..,~ (.,,: ~... " ~ .,:" fL' '! .~ I f!: " ,1/ ,....., , ~ ,: l~; J:jl.l I ,',~ ~.:~ ' fr 11 J ,." J, ,.I , " Hr: (..1 'LJo.. c;J ....,. ~ I- f':'; C7' U "" , , ';, " 7. Ne i ther admi t ted nor denied. Respondent is wi thout sufficient knowledge upon which to base an answer to the averment that counsel's paralegal, who was unaware that the appeal was due by Friday, September 5, 1997, rather than Federal Expressing the appeal papers, placed them in the maH to the Prothonotary. Therefore, strict proof of said averment is demanded. 8. Denied as stated. It is denied that, completely beyond the control of both counsel and his paralegal, the mail apparently was not picked up on September 3, 1997, at the receptacle owned by the Postal Service but was picked up the next day. To the contrary, counsel admits in paragraph 7 of the petition that counsel's paralegal was ignorant as to the date that the appeal was due. Further, counsel for Respondent believes and therefore avers that mail receptacles have listed pick-up times and dates and it is, therefore, the responsibility of Petitioner's counselor paralegal to make themselves aware of said picJt-up times. 9. Neither admitted nor denied. Respondent is '",ithout sufficient knowledge upon which to base an answer to the averment that the Prothonotary did not open the envelope containing the appeal papers until Monday, September 8, 1997. By way of further answer, the Respondent believes and therefore avers that the Prothonotary did not open the envelope containing the appeal papers until Monday, September 8, 1997, because said envelop~ was not delivered until Monday, September 8, 1997. :2 10. Denied as stated. It is denied that because the Prothonotary lacked discretion to accept the appeal, which was one day l.ate, the appeal papers were returned to counsel on September 10, 1997. By way of further answer, the appeal papers were returned because they were untimely. 11. Neither admitt.ed nor denied. Respondent is without sufficient knowledge upon which to base all answer to the averment that all filings of court papers are normally performed by Petitioner's counsel's secretary, who has been instructed to Federal Express all such filings. Further, Respondent is wi thout sufficient knowledge to base an answer to the averment that due to the fact that counsel's secretary was performing a court filing in another county, counsel's paralegal agreed to assist in filing these appeal papers, Further, Respondent is without sufficient knowledge upon which to base an answer to the averment that unlike Petitioner's counsel, who attended law school in Cumberland County and knows the distance from Reading, counsel's paralegal is formerly from New Jersey. Therefore, strict proof of these averments is demanded. 12. The averment contained in this paragraph is a conclusion of law to which no response is required. 13. The averment contained in this paragraph is a conclusion of law to which no response is required. By way of further answer, the case of Cook v. UnemDlovment ComDensation Bd. of Review, 543 3 Pa, 381, 671 A,2D 1130, (1996) and the case of Bass v. Commw., 485 Pa. 256, 401 A,2d 1133 (1979) speak for themselves. 14. 'rhe case of Paul v. Commw. Dect. of Transc., 651 A.2d 711 (Cornrnw. 1994) speaks for itself. By way of further answer, it is denied that the ~ case is similar to the case at bar. 15. Denied as stated. It is denied that the facts of the case at bar are virtually identical to those in BaYl. By way of further answer, as the petitioner cites, the Prothonotary in the case at bar is certain that it did not receive the appeal papers until one business day following the deadline. This fact is, of course, the controlling distinction between BaYl and the case at bar. 16. The averment contained in this paragraph is a conclusion of law to which no response is required. By way of further answer, it is denied that actions of counsel and his paralegal were reasonable and not negligent. As the counsel for the Petitioner points out, the Supreme Court has redefined the test for the granting of appealo nunc pro tunc to include the granting of appeals where untimeliness is due to "non-negligent" circumstances. In this case, the Respondent believes and therefore avers that the petitioner may not excuse his failure to file a timely appeal based on the fact that his secretary was performing another filing or that his paralegal was uncertain as to the deadline for filing the appeal. Such conduct is clearly negligent and is not based on the It " , , ... \l) 1';; it; IJ', .1 " I.: .. '~; ~i ll.1~-': N, 1,1,"; (...'" :r; ,.-'. U,\ u.. , :~~! ~\ (,I ' \J} rI". I '1 .' ~ ,", ,. L.4!1' , t- ,~'I r~j ,;: t' ,r.\1.L. CJ . ....'~ ~ ~ d " , , ,il " ""I,; " "