HomeMy WebLinkAbout00-07742
KEITH NEWKAM and ILEANA
NEWKAM, husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
00-7742 CIVIL
vs.
CIVIL ACTION - LAW
LEN BIANCHI t/d/b/a BIANCHI
CONSTRUCTION,
Defendant
IN RE: DEFENDANT'S MOTION TO OPEN AND/OR STRIKE JUDGMENT
ORDER
AND NOW, this 2.,' day of December, 2000, on agreement of counsel for the
parties, hearing herein is continued. Counsel will submit a stipulation to be filed of record. The
parties are given ten (10) days within which to file legal memoranda.
BY THE COURT,
Michael 1. Bangs, Esquire
For the Plaintiffs
R. Mark Thomas, Esquire
For the Defendant
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KEITH NEWKAM and
ILEANA NEWKAM,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
"17"1 '>----
: NO, 2000~ CIVIL TERM
: CIVIL ACTION - LAW
LEN BIANCHI, t/d/b/a BIANCHI
CONSTRUCTION,
Defendant
RULE
AND NOW, this
z./! day of
,,~-
, 2000, a Rule is entered
upon the plaintiffs to show cause, if any, as to why the relief in question by the defendant should
not be granted.
cI;i;lJ b. ~ ?wv. ,;{~ ~ d, 3 ;tl?Jp.m,
Rule Retumable"- vvqi7...~u Q:l~fg '.lftpr I\:f'rvice of thii P..yle YfJ8B fL.\.! !-,la~Htiffs.
.....v.n.- (]/2. ;I;L L/.
S...1Vk... ,hall be by Ctal;f;...d Maa, It''ll1rn 1<.ecelpt Kequesteo and addrebbed LU the anorney of
f,GQQnl fSf taB {3IaiBtifY:.
By the Court,
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cc: Michael Bangs, Esquire
R. Mark Thomas, Esquire
Defendant
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KEITH NEWKAM and
ILEANA NEWKAM,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
77l(~
: NO. 2000.~ CIVIL TERM
: CIVIL ACTION - LAW
LEN BIANCHI, t/d/b/a BIANCHI
CONSTRUCTION,
Defendant
ORDER
AND NOW, this
:z I .. day of
tV,~
, 2000, upon
consideration of the Motion to Open and/or Strike Judgment in the above captioned case along
with an Application for Allowance to File an Appeal Nunc Pro Tunc which has been filed by .the
defendant, it is hereby ordered that all efforts to execute judgment pursuant to the judgment
which was filed on November 1, 2000 be stayed pending further Order of this Court.
By the Court,
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cc: Michael Bangs, Esquire
R. Mark Thomas, Esquire
Defendant
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KEITH NEWKAM and
ILEANA NEWKAM,
Plaintiffs
: IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
v.
: NO. 2000-7442 CIVIL TERM
: CIVILACTION-IAW
LEN BIANCHI, t/d/b/a BIANCHI
CONSTRUCTION,
Defendant
MOTION TO OPEN AND/OR STRIKE JUDGMENT AND APPLICATION
FOR ALLOWANCE OF APPEAL NUNC PRO TUNC
AND NOW, comes the defendant, Len Bianchi, t/dlb/a Bianchi Construction, by and
through his counsel, R. Mark Thomas, Esquire, and files these motions and application and in
support thereof respectfully represents:
1. On or about December 18, 1999 the defendant entered into an agreement with the
plaintiffs to make certain repairs to the exterior of the plaintiffs' house and to install vinyl siding.
2. A dispute arose between the parties and a claim against the defendant was filed by
the plaintiffs before District Justice Thomas A. Placey in Magisterial District No. 09-3-04.
3. A hearing was held and on September 13, 2000 the district magistrate entered
judgment in favor of plaintiffs and against the defendant in the amount of $3,436.00 plus costs in
the amount of $116.00.
4. On November 1, 2000, the plaintiffs filed the District Justice's judgment with the
Prothonotary's Office in the Court of Common Pleas of Cumberland County.
MOTION TO OPEN AND/OR STRIKE JUDGMENT
5. Paragraphs 1 through 4 are incorporated herein as if set forth in length.
6. The Notice of Judgment provided to the defendant advised the defendant that he
had thirty (30) days within which to file a Notice of Appeal with the Prothonotary of the Court of
Common Pleas, but did not specify which Court of Common Pleas.
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7. The defendant was unrepresented and was advised by a third party that the
Prothonotary was located in the courthouse in Dauphin County.
8. On October 10, 2000, the twenty-seventh (27th) day following the Notice of
Judgment, the defendant appeared in the Prothonotary's Office in the Dauphin County Court of
Common Pleas and filed a Notice of Appeal. A copy of the Notice of Appeal is attached hereto
and marked Defendant's Exhibit A.
9. The Dauphin County Prothonotary's Office did not realize the defendant was
appealing this matter in the wrong county and proceeded to process his Notice of Appeal.
10. It is believed and therefor averred that a Notice of the appeal filed in the Dauphin
County Court of Common Pleas was served upon the plaintiffs along with a Praecipe To Enter
Rule to File Complaint.
11. The defendant believed he had timely appealed the magistrate's ruling.
12. The defendant received Notice Pursuant to Rule 236 dated November 1, 2000
and served upon him by the Cumberland County Prothonotary's Office which advised him that
judgment had been entered on the district magistrate's ruling.
13. The defendant has a meritorious defense to the cause of action originally filed by
the plaintiffs and the defendant did file a timely appeal of the district justice's decision, but
unknowingly filed it in the wrong court.
14. Plaintiffs were notified of the Notice of Appeal that had been filed by the
defendant yet they proceeded to have judgment entered against the defendant in Cumberland
County.
15. The court has the right to open this judgment on equitable grounds.
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16. Under the circumstances of this case equitable principles would justify the
opening of this judgment so that the defendant could have his day in court.
17. In the alternative, in as much as the defendant had filed an appeal in a Court of
Common Pleas which has statewide jurisdiction, the appeal was timely and it was error for the
Prothonotary to enter judgment in favor of the plaintiffs.
18. Due to the error the judgment should be stricken, vacated and set aside.
WHEREFORE, defendant prays this Honorable Court will grant his Motion to either
open or strike off the judgment entered in this matter.
APPLICATION FOR LEAVE TO FILE AN APPEAL NUNC PRO TUNC
19. Paragraphs 1 through 18 are incorporated herein as if set forth at length.
20. As indicated above, the defendant did file a timely Notice of Appeal, but filed that
Notice with the wrong Court of Common Pleas.
21. The Dauphin County Court of Common Pleas failed to realize that this was a
Cumberland County case and therefor they did not advise the defendant that he should file his
Notice of Appeal in Cumberland County.
22. The failure to recognize that the defendant was in the wrong court was a
breakdown ill the judicial system and it resulted in the defendant not filing his appeal in
Cumberland County in a timely fashion.
23. Had the Dauphin County Court advised the defendant that he was in the wrong
court the defendant had sufficient time in which to timely file a Notice of Appeal in the
Cumberland County Court of Common Pleas.
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24. Upon learning that he had filed the Notice of Appeal in the wrong court the
defendant acted promptly in contacting counsel and preparing this Application For Leave to File
an Appeal Nunc Pro Tunc in Cumberland County Court.
WHREFORE, defendant prays that this Honorable Court will grant his Application for
Allowance to File Appeal Nunc Pro Tunc, and pending the outcome of the decision on this
Application the defendant prays that this Honorable Court will stay the execution of judgment
which is being prosecuted by the plaintiffs.
Respectfully submitted,
~
R. Mark Thomas, squire
Attorney for Defendant
101 South Market Street
Mechanicsburg, P A 17055
(717)796-2100
ID# 41301
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CERTIFICATE OF SERVICE
I, R. Mark Thomas, Esquire, hereby certify that I have served a copy of the within
document on the following by depositing a true and correct copy of the same in the U.S. Mail at
Mechanicsburg, Pennsylvania, Postage pre-paid, addressed to:
Michael Bangs, Esquire
302 South 18th Street
Camp Hill, P A 17011
Date: Mv. /0 ;?t?a::/
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R. Mark Thomas, Esq.
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KEITH NEWKAM and ILEANA
NEWKAM, husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
00-7742 CIVIL
vs.
CIVIL ACTION - LAW
LEN BIANCHI t/d/b/a BIANCHI
CONSTRUCTION,
Defendant
IN RE: DEFENDANT'S MOTION TO OPEN AND/OR STRIKE JUDGMENT
ORDER
AND NOW, this 2.'" day of November, 2000, at the request of counsel for the
plaintiffs and with the concurrence of counsel for the defendant, hearing in the above matter set
for November 29, 2000, is continued to Friday, December 29,2000, at 9:00 a.m. in Courtroom
Number 4, Cumberland County Courthouse, Carlisle, P A.
BY THE COURT,
Michael 1. Bangs, Esquire
For the Plaintiffs
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R. Mark Thomas, Esquire
For the Defendant
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IN THE COURT OF COMMON PLEAS
OF CUMBERLAND COUNTY,
PENNSYL VANIA
KEITH NEWKAM and
ILEANA NEWKAM,
Plaintiffs
LEN BIANCHI, t/d/b/a
BIANCHI CONSTRUCTION,
Defendant
NO. 2000-1'1't~ CIVIL TERM
CIVIL ACTION - LAW
PRAECIPE
TO THE PROTHONOTARY:
Please enter judgment in favor ofthe Plaintiffs and against the Defendant in the amount
of $3,552.00, in accordance with the attached District Justice Judgment.
Respectfully submitted,
?
ICHAEL 1. BANGS
Attorney for Plaintiffs
302 South 18th Street
Camp Hill, PA 17011
(7l7) 730-7310
Supreme Court ID #41263
Date: October 30, 2000
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COMMONWEALTI;I OF PENNSYLVANIA
COUNTY OF: CUMBERLAND
Mag. Disl. No.:
09-3-04
OJ Name: Hon.
THOMAS A. PLACEY
Add,,,,, 104 S. SPORTING HILL RD.
MECHANICSBURG, PA
T"'phoc, (717) 761-8230
17050
REITH & ILEANA NEWKAM
3825 CONESTOGA RD.
CAMP BILL, PA 17011
"
THIS IS TO NOTIFY YOU THAT:
Judgment:
[!] Judgment was entered for: (Name)
[!] Judgment was entered against: (Name)
in the amount of $
":\, ""2 nn on:
D Defendants are jointly and severally liable.
D Damages will be assessed on:
D This case dismissed without prejudice.
D
D
D
Amount of Judgment Subject to
AttachmenVAct 5 of 1996 $
NOTICE OF JUDGMENTITRANSCRIPT
CIVIL CASE
PLAINTIFF: NAME ,cd ADDRESS
1NEwKAM, REITH & ILEANA
3825 CONESTOGA RD.
CAMP HILL, PA 17011
L
VS.
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DEFENDANT: NAME and ADDRESS
'LEN BIANCHI/BIANCHI CONSTRUCTION I
P.O. BOX 7102
MECHANICSBURG, PA 17055
L .J
Docket No.: cv- 0000216 - 00
Date Filed: 6/20/00
FOR PLAINTIFF
NRW'R'lI.M ll'RT'I'H s:.. Tr.RlI.lITlI.
.
T.RI\T RTlI.lITCHT /RTlI.lITCHT C'..ollTR'I'RTTC'I'TOllT
(Date of Judgment)
(Date & Time)
Amount of Judgment
Judgment Costs
Interest on Judgment
Attorney Fees
Total
Levy Is stayed for
Post Judgment Credits $
Post Judgment Costs $
days or D generally stayed.
Certified Judgment Total $
Date:
Objection to ievy has been filed and hearing will be held:
Time:
Place:
Q/1'1/nn
. .
$ 3.436.00
$ 116.00
$ .00
$ .00
$ 3.552.00
------------
------------
ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE
OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU
MUST INCLUDE A COPY OF THIS NO RANSCRIPT FORM WITH YOUR NOTICE OF APPEAL.
q-l '?l~OO Date.
I certify that this is a true and correct c
q-\~-DD Date
My commission expires first Monday of January,
AOPC 315,99
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eedings containing the judgment.
, District Justice
SEAL
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PRAECIPE FOR WRIT OF EXECUTION (MONEY JUDGMENTS)
PRe.p. 3101 TO 3149
KEITH NEWKAM and
I LEANA NEWKAM
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PA
Plaintiff
Writ No. Term
No. 60 - -nl{).. Cu: t Term
vs.
LEN BIANCHI, t/d/b/a
BIANCHI CONSTRUCTION
Defendant
TO THE PROTHONOTARY OF SAID COURT: ISSUE A WRIT OF EXECUTION IN THE ABOVE
MATTER,
(1)
Directed to the Sheriff of Cumber land
County, Pennsylvania;
(2) again& Len Bianchi, t/d/b/a Bianchi Construction
Defendant(s);
(3)
and against
Garnishee(s);
(4) and index this writ:
(a) against Len Bianchi, t/d/b/a Bianchi Construction
Defendant(s) and
(b) against
Garnishee(s),
as a lis pendens against the real property of the Defendant(s) in the name of the Garnishee(s) as follows:
(Specifically describe property and note any specific direction to Sheriff) Furnish 4 copies for real estate
levy.
Please levy upon all personal property of the Defendant located
at 6280 Carlisle Pike, Lot #539, Mechanicsburg, Pennsylvania.
(5) Amount due
Interest from
[Costs to be added]
$3,552.00
$
$
Date: (O\~l t5n
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KEITH NEWKAM and ILEANA
NEWKAM, husband and wife,
Plaintiffs
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYL VANIA
00-7742 CIVIL
vs.
CIVIL ACTION - LAW
LEN BlANCHI t/d/b/a BIANCHI
CONSTRUCTION,
Defendant
IN RE: DEFENDANT'S MOTION TO OPEN AND/OR STRIKE JUDGMENT AND
FOR ALLOWANCE TO FILE AN APPEAL NUNC PRO TUNC
ORDER
AND NOW, this
,t,"
day of February, 2001, following careful consideration
hereof, the court finding no authority whereby same should be granted, the defendant's motion to
open and/or strike judgment and for allowance to file an appeal nunc pro tunc is DENIED.
BY THE COURT,
Michael Bangs, Esquire
For the Plaintiffs
. Ad
R. Mark Thomas, Esquire
F or the Defendant
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WRIT OF EXECUTION and/or ATTACHMENT
COMMONWEALTH OF PENNSYLVANIA)
COUNTY OF CUMBERLAND)
NO.
00-7742 CIVIL~ Term
CIVIL ACTION. LAW
TO THE SHERIFF OF
Cumberland
COUNTY:
Keith Newkam and Ileana Newkam
To satisfy the debt, interest and costs due
PLAINTIFF(S)
from T"'n Ri"n"hi. t-/C1/h/" Ri"n"hi f'nn<<t-rll"Hnn, n?RO f'"rli<<lE" pikE". Lot #539.
MP-chanicsburg. PA
DEFENDANT(S)
(1) You are directed to levy upon the property of the defendant(s) and to sell all personal property
(2) You are also directed to attach the property of the defendant(s) not levied upon in the possession of
GARNISHEE(S) as follows:
and to notify the garnishee(s) that: (a) an attachment has been issued; (b) the garnishee(s) is/are enjoined from paying any
debt to or for the account of the defendant(s) and from delivering any property of the defendant(s) or otherwise disposing
thereof;
(:3) If property ofthe defendant(s) not levied upon an subject to attachment is found inthe pol;session of anyone other
than a named garnishee. you are directed to nomy him/her that he/she has been added as a garnishee and is enjoined as above
stated.
Amount Due
Interest
Atty's Comm
Atty Paid
Plaintiff paid
%
L.L.
Due Prothy
Other Costs
$.50
$1.00
S1SS?.OO
$31. 75
Date:
November 1, 2000
Curtis R. Long
Prothonotary, Civil Division
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Deputy
REQUESTING PARTY:
Name Michael L. Banqs, Esq.
Address: 302 South 18th Street
Camp Hill, PA 17011
Attorney for: Plaintiff
Telephone: 717-730-7310
Supreme Court 10 No. 41263
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R. Thomas Kline, Sheriff, who being duly sworn according
to law, states this writ is returned NULLA BONA. Defendant moved and
left no forwarding address with the post office.
Sheriff's Costs:
Docketing
Poundage
Law Library
Prothonotary
Service
Nulla Bona Return
Surcharge
$18.00
.89
.50
1. 00
6.20
9.00
10.00
$45.59
Advance Costs:
Sheriff's Costs:
$150.00
45.59
$104.41
Refund to atty on 2/27/01
So Answers:
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R. Thomas Kline, Sheriff
Sworn and subscribed to before me
This ,u!i:-' d~y ofla,....'}
2001, A.D. (-b1' Q.l2.1~PO'" 'fP7i
f Prothonotaty
BY ~1Jd~ JrvUffl
D puty Sheriff
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