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Home My WebLink About01-2321 FX STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant ORDER AND NOW, this day of , 2001, upon consideration of Plaintiff's Motion to Reinstate Plaintiffs Appeal, it is hereby ORDERED that Plaintiffs Motion to Reinstate Plaintiff's Appeal is GRANTED and Plaintiff is allowed to file his Complaint relative to the above captioned matter. J. Document #: 206278.1 ",,,~~"I'!,"o "-" Il< ~, """1"" '" 1.1-, r I ,~ ,--" ... JUN 0 120~ IN THE COURT OF COMMON Pt:~~~ CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 2001-02321 Civil Term v. ALL TUNE AND LUBE, Defendant. ORDER AND NOW, this day of , 2001, upon consideration of Plaintiff's Motion to Reinstate Appeal, and Defendant's response thereto, it is hereby ORDERED that Plaintiff's Motion to Reinstate Appeal is DENIED. J. 82248.15125/01 "", .'- "--, ,n,.,,,.,,,,,' ---~"-. -'-,-,'''i'~'l'''fp_,,,,~~-~,,,,'~~''c,'-_r_,.:T~_,-",_, ':'~", ._"~T"_'~_~ , _.. "H~ ". / . ' MAY 3 0200100 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 2001-02321 Civil Term v. ALL TUNE AND LUBE, Defendant. BRIEF IN SUPPORT OF DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO REINSTATE APPEAL Defendant All Tune & Lube ("All Tune"), by and through its attorneys, Saul Ewing LLP, respectfully submits this Brief in Support of Defendant's Response to Plaintiff's Motion to Reinstate Appeal. I. PROCEDURAL HISTORY AND STATEMENT OF FACTS On or about December 12, 2001, Steven C. Courtney, Esquire, ("Petitioner") filed a civil complaint in Magisterial District No. 09-1-02 against All Tune alleging, inter alia, that All Tune improperly performed work on Mr. Courtney's 1996 Honda Accord. On March 22,2001, Petitioner, represented by counsel, presented his case to District Justice Robert V. Manlove. On March 23,2001 judgment was entered in favor of All Tune, and notice of the judgment was provided to both parties by mail. A true and correct copy of the Notice of Judgment in that case is attached hereto as Exhibit "A". On April 20, 2001, Petitioners fIled a Notice of Appeal from District Justice Judgment with the Cumberland County Court of Common Pleas, and the Prothonotary assigned that case docket number 01-2321-CV. On May 15, 2001, after 82254.15/25/01 '-~,('L~n~""'''' - ,-" \,"'~ ~ ,~, rl,"--~ n,_ " ~, t' not having received service of a copy of Plaintiff's complaint and verifying that no such complaint had been filed with this Court, All Tune filed a Praecipe to Strike Appeal pursuant to Pa. R.C.P.J.P. No. 1006. On May 17,2001, the Cumberland County Prothonotary marked the appeal stricken pursuant to Pa. R.C.P.J.P. 1006. A true and correct copy of Defendant's Praecipe to Strike Appeal is attached hereto as Exhibit "B". On or about May 17, 2001, All Tune received a copy of Petitioner's Motion to Reinstate Appeal. Petitioner's motion alleges that the United States Postal Service failed to deliver a copy of Petitioner's complaint, which was allegedly mailed to the Cumberland County Prothonotary on May 8, 2001. Petitioner does not allege that a copy of the Complaint was served upon All Tune's counsel of record, or that it took any of several very basic measures to assure its complaint had been properly filed. Only after All Tune filed a Praecipe to Strike Appeal five (5) days after Petitioner's complaint was to be filed did Petitioner undertake any efforts to determine the status of its alleged filing. II. QUESTION PRESENTED WHETHER PETITIONER'S FAILURE TO TAKE ANY BASIC MEASURES TO VERIFY THE TIMELY RECEIPT OF A MAILED COMPLAINT CONSTITUTES "GOOD CAUSE" EXCUSING ITS FAILURE TO TIMELY FILE A COMPLAINT PURSUANT TO THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. Suggested Answer: No III. ARGUMENT 82254.15/25/01 "!"1~~~~ ,,~~~. ~, PI-- . -,,",,~ .". r, , ~ ".,,' ,~ -~ ., Petitioner has failed to timely file a complaint with this Court and has failed to demonstrate any "good cause" sufficient to excuse his conduct. Rule 1004 of the Pennsylvania Rules governing District Justice procedure in civil cases ("the Rules") provides that an appellant who was the claimant in a district justice action "shall file a complaint within twenty (20) days after filing his notice of appeal." Pa. R.C.P.J.P. 1004A. A pleading that is sent by mail is not considered to be filed until it is received by the appropriate officer, in this case the Cumberland County Prothonotary. Pa.R.C.P.J.P. 205.1. The Rules further provide that upon an appellant's failure to comply with Rule 1004A "the Prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record." Pa. R.C.P.J.P. 1006 (emphasis added). Rule 1006 gives this Court discretion to reinstate an appeal stricken pursuant to Rule 1006 for good cause shown. No hard rule exists for a court to determine whether a Petitioner has demonstrated "good cause" sufficient to disregard that party's failure to adhere to the Rules of Civil Procedure. The Pennsylvania Superior Court has, however, found good cause to exist where a Petitioner has made a good faith attempt to comply with the Rules. See Voland v. Gray, 438 Pa Super. 525, 652 A 2d. 935 (1995). Here, Petitioner has alleged no facts that demonstrate a good faith effort to comply with the Rules. Petitioner merely blames its failure to timely me a complaint on the United States Postal Service, who allegedly has yet to deliver the complaint nearly twenty days after it was mailed. Recent appellate authority in this Commonwealth, however, rejects 82254.15/25101 " ~~ 'f-,I'i, --',~..'" ,~ .. . - ~"'" . ~ the notion that a party can blame the mail when other reasonable and relatively effortless actions would have effected the timely filing of a document., In Hanni v. Penn Warranty Corporation, 442 Pa. Super. 160,658 A.2d 1349 (1995), the Prothonotary struck an appeal after the appellant failed to file proof of service of its notice of appeal within the ten days provided under Pa.R.C.P.D.J. 1005(b). In denying Penn Warranty's petition to reinstate the appeal the trial court noted that the appellant "chose to trust the timeliness of the regular mail during the holiday season, when it could have used an Express Mail service, or brought the proofs of service to the Prothonotary by hand to be docketed within the ten-day limit." Id. at 163,658 A.2d at 1350. The Pennsylvania Superior Court determined that the trial court had not abused its discretion in denying the appellant's petition, and affirmed the trial court's decision. Like the appellant in H~nni, the Petitioner in this case failed to exercise even the most minimal effort to comply with the Rules. Petitioner could have easily taken any number of reasonable and relatively effortless actions to effect service, including hand delivering the appeal to the Prothonotary's office, sending the appeal via a courier (which can guarantee delivery dates) or, perhaps requiring the least amount of effort, calling the Prothonotary to confirm receipt and filing of its complaint. Petitioner also uureasonably failed to take any action after it possessed constructive notice that its filing was not timely received by the Prothonotary. Petitioner's cover letter to the Prothonotary dated May 8, 2001, requested the return of time-stamped copies of its complaint in an enclosed self-addressed stamped envelope. As of May 15, 2001, Petitioner had not received the requested copies, yet failed to 82254.15/25/01 ;--.- ^-- ~"'1, ~ __0 ". ~-~ '~I<"k ""'_" ~"~<_' - , inquire as to the status of its filing. It was only after All Tune filed its Praecipe to Strike Appeal that the Petitioner undertook any efforts with respect to its fIling. The seven (7) days between Petitioner's mailing its complaint and All Tune's filing on May 15,2001, provided ample notice that the complaint had not been received by the Prothonotary, and Petitioner's failure to act demonstrates anything but a good faith effort to comply with the Rules. In light of the above, there can be no question that Petitioner did not make a good faith attempt to comply with the Rules and therefore no "good cause" exists to excuse its failure to comply with the Pennsylvania Rules of Civil Procedure. IV. CONCLUSION For the reasons set forth above, Respondent All Tune & Lube respectfully submits that the Petitioner has failed to show good cause sufficient for this Court to reinstate the appeal filed in this matter, and Petitioner's Motion should be denied. Respectfully submitted, By: Saul Ewing LLP ~ 'iJc- FC ' Joe C. Hopkins, Esquire Supreme Court ID No. 85096 Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 Dated: May~, 2001 Attorneys for All Tune & Lube 82254.15/25/01 :;~'"' - , ,~ "J. __' ,.~_ ,e .., ~. ,""1""" "" .. ~, 'n _ .,_ _ L. , - NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS IcoURTNEY, ESQ., STEVEN C I 3211 N FRONT ST PO BOX 5300 ~ISBURG, PA 17110 ~ VS. COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. Qis!. No.: 09-1-02 OJ Name: Hon. ROBERT V. MANLOVE A<"eo,,, 1901 STATE STREET CAMP HILL, PA T",pho,,, (717) 761-0583 DEFENDANT: NAME and ADDRESS lALL TUNE AND LUBE 3 E SHADY LN ENOLA, PA 17025 L Docket No.: CV-0000451-00 Date Filed: 12/12/00 17011-0000 ATTORNEY DEF PRIVATE : JOEL HOPKINS, ESQ. 2N2NDST 7TH FL HARRISBURG, PA 17101 ,;:. ~i THIS IS TO NOTIFY YOU THAT: Judgment: FOR DRpRNDANT [iJ Judgment was entered for: (Name) IIT,T. 'I'TTNR liNn T.TTRR [iJ Judgment was entered against: (Name) COTJRTNRV, RRQ _ _ RTRVRN' C in the amount of $ (Date of Judgment) (Date & Time) "1/2"1/01 00 on: D Defendants are jointly and severally liable. o Damages will be assessed on: Amount of, Judgment Judgment Costs Interest on Judgment Attorney Fees Total D This case dismissed without prejudice. D Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Post Judgment Credits Post Judgment Costs D Levy is stayed for days or D generally stayed. Certified Judgment Total $ D Objection to levy has been filed and hearing will be, held: Date: Place: Time: I ~ .". .\ ..... ..... .."...,.. . $ $ $ $ $ .00 .00 .00 .00 .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 T S E JUD C F M WITH YOUR NOTICE OF APPEAL. . .~...... ,'-. .<,. -... ,.' .~:.:!1istrict~ustice t~- . ,.' '~, . . . .. -.. " . . 'f the proceeding5'coilfili~i.og the judgment; - ..,.....~. -', ' , -~, ': .... .-:: i:-V . :;: . -";~ DistricitJustice .. -.. \"t ~'.. --....:;. { ~ '.. '-0, ''<II. ..~ ", -. -...- .' ," 2006 ... '..;' SEAL ..- .,~, .. . . ..~'" '''>'\o~ .'t'~~ ''''':'''-''"::_~;<''T_t~~ 3-83-01 Date ! I certify that this is a true "0l,3-0 J Date ' My commission expires first Monday of January, AOPC 315.99 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. Qt-2321 Civil Term v. ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J .P. No. 1006, please strike the appeal filed by plaintiff in the above-captioned matter for failure to file a Complaint within twenty days of filing the Notice of Appeal from District Justice Judgment. Respectfully SUbmitte~~1 -=-c-7 r C-ff'- Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7111 Floor Harrisburg, PA 17101 Attorney for Defendant DATED: May 15,2001 PRO PROTHY: Appeal stricken pursuant to c~ tRUE copy FROM RECORD '. Testimony wll8reof, I here unto set my llano , ;,,1 t~ se.al of said Court at carll~. Pa. (\". If/It- ~ ~I Thi~ (j'f~~ () - ~ I~ = . ,'.,.,' ProthollotBf'Y 82002.1 j/U/Ql ~~-^ ",,--~ -~" --",,~-~""'_I~--" _._~,,_. CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on thisZSth day of May, 2001, I served a true and correct copy of the foregoing Brief in support of Defendant's Response to Plaintiffs Motion to Reinstate Appeal, via First Class Mail, postage prepaid, upon the following: Steven C. Courtney, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, P A 1711 0-0300 q PC~ Joel C. Hopkins 82254.15125/01 ,Oli'" "" , ~.', , ~ ""I~ I, _..,- '" , - - ~ MAY 3 02001 t/I IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 2001-02321 Civil Term v. ALL TUNE AND LUBE, Defendant. BRIEF IN SUPPORT OF DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO REINSTATE APPEAL Defendant All Tune & Lube ("All Tune"), by and through its attorneys, Saul Ewing LLP, respectfully submits this Brief in Support of Defendant's Response to Plaintiff's Motion to Reinstate Appeal. I. PROCEDURAL mSTORY AND STATEMENT OF FACTS On or about December 12, 2001, Steven C. Courtney, Esquire, ("Petitioner") filed a civil complaint in Magisterial District No. 09-1-02 against All Tune alleging, inter alia, that All Tune improperly performed work on Mr. Courtney's 1996 Honda Accord. On March 22,2001, Petitioner, represented by counsel, presented his case to District Justice Robert V. Manlove. On March 23,2001 judgment was entered in favor of All Tune, and notice of the judgment was provided to both parties by mail. A true and correct copy of the Notice of Judgment in that case is attached hereto as Exhibit "A". On April 20, 2001, Petitioners filed a Notice of Appeal from District Justice Judgment with the Cumberland County Court of Common Pleas, and the Prothonotary assigned that case docket number 01-2321-CV. On May 15, 2001, after 82254.15125101 \, ..'" _'~',__ ~'_~,_, 'd_~')_'__~-,~,,"_ . ' -,-~, . '. ,~r 1""1 - of , '_I, not having received service of a copy of Plaintiff's complaint and verifying that no such complaint had been filed with this Court, All Tune filed a Praecipe to Strike Appeal pursuant to Pa. R.C.P.I.P. No. 1006, On May 17, 2001, the Cumberland County Prothonotary marked the appeal stricken pursuant to Pa. R.C.P.I.P. 1006. A true and correct copy of Defendant's Praecipe to Strike Appeal is attached hereto as Exhibit "B". On or about May 17,2001, All Tune received a copy of Petitioner's Motion to Reinstate Appeal. Petitioner's motion alleges that the United States Postal Service failed to deliver a copy of Petitioner's complaint, which was allegedly mailed to the Cumberland County Prothonotary on May 8, 2001. Petitioner does not allege that a copy of the Complaint was served upon All Tune's counsel ofrecord, or that it took any of several very basic measures to assure its complaint had been properly fIled. Only after All Tune rued a Praecipe to Strike Appeal five (5) days after Petitioner's complaint was to be rued did Petitioner undertake any efforts to determine the status of its alleged filing. II. QUESTION PRESENTED WHETHER PETITIONER'S FAILURE TO TAKE ANY BASIC MEASURES TO VERIFY THE TIMELY RECEIPT OF A MAILED COMPLAINT CONSTITUTES "GOOD CAUSE" EXCUSING ITS FAILURE TO TIMELY FILE A COMPLAINT PURSUANT TO THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. Suggested Answer: No m. ARGUMENT 82254.1S/25fOl 'of'.,'''. -f-.' "" ,_~_ ",_}_,~, ."=,_ _, ' , '" I~.- , , - " ~ Petitioner has failed to timely fIle a complaint with this Court and has failed to demonstrate any "good cause" sufficient to excuse his conduct. Rule 1004 of the Pennsylvania Rules governing District Justice procedure in civil cases ("the Rules") provides that an appellant who was the claimant in a district justice action "shall file a complaint within twenty (20) days after filing his notice of appeal." Pa. R.C.P.J.P. 1004A. A pleading that is sent by mail is not considered to be fIled until it is received by the appropriate officer, in this case the Cumberland County Prothonotary. Pa.R.C.P.J.P.205.l. The Rules further provide that upon an appellant's failure to comply with Rule lOO4A "the Prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record." Pa. R.C.P.J.P. 1006 (emphasis added). Rule 1006 gives this Court discretion to reinstate an appeal stricken pursuant to Rule 1006 for good cause shown. No hard rule exists for a court to determine whether a Petitioner has demonstrated "good cause" sufficient to disregard that party's failure to adhere to the Rules of Civil Procedure. The Pennsylvania Superior Court has, however, found good cause to exist where a Petitioner has made a good faith attempt to comply with the Rules. See Voland v. Gray, 438 Pa Super. 525, 652 A 2d. 935 (1995). Here, Petitioner has alleged no facts that demonstrate a good faith effort to comply with the Rules. Petitioner merely blames its failure to timely fIle a complaint on the United States Postal Service, who allegedly has yet to deliver the complaint nearly twenty days after it was mailed. Recent appellate authority in this Commonwealth, however, rejects 82254.ISI25JOI n,~ ~ ". ,'~'''l~ ,,-.0' <-- "..,.."._ ",.", , ~~, the notion that a party can blame the mail when other reasonable and relatively effortless actions would have effected the timely filing of a document. In Hanni v. Penn Warranty Corporation, 442 Pa. Super. 160,658 A.2d 1349 (1995), the Prothonotary struck an appeal after the appellant failed to file proof of service of its notice of appeal within the ten days provided under Pa.R.C.P.D.J. 1005 (b). In denying Penn Warranty's petition to reinstate the appeal the trial court noted that the appellant "chose to trust the timeliness of the regular mail during the holiday season, when it could have used an Express Mail service, or brought the proofs of service to the Prothonotary by hand to be docketed within the ten-day limit." Id. at 163,658 A.2d at 1350. The Pennsylvania Superior Court determined that the trial court had not abused its discretion in denying the appellant's petition, and affinned the trial court's decision. Like the appellant in Hanni, the Petitioner in this case failed to exercise even the most minimal effort to comply with the Rules. Petitioner could have easily taken any number of reasonable and relatively effortless actions to effect service, including hand delivering the appeal to the Prothonotary's office, sending the appeal via a courier (which can guarantee delivery dates) or, perhaps requiring the least amonnt of effort, calling the Prothonotary to confIrm receipt and filing of its complaint. Petitioner also unreasonably failed to take any action after it possessed constructive notice that its fIling was not timely received by the Prothonotary. Petitioner's cover letter to the Prothonotary dated May 8,2001, requested the return of time-stamped copies of its complaint in an enclosed self-addressed stamped envelope. As of May 15, 2001, Petitioner had not received the requested copies, yet failed to 82254.15/25/01 '"1f1FT -', . ~_ ,. _ _. , "'4'_,,~, . I~"i' ',- inquire as to the status of its filing. It was only after All Tune filed its Praecipe to Strike Appeal that the Petitioner undertook any efforts with respect to its filing. The seven (7) days between Petitioner's mailing its complaint and All Tune's filing on May 15,2001, provided ample notice that the complaint had not been received by the Prothonotary, and Petitioner's failure to act demonstrates anything but a good faith effort to comply with the Rules. In light of the above,there can be no question that Petitioner did not make a good faith attempt to comply with the Rules and therefore no "good cause" exists to excuse its failure to comply with the Pennsylvania Rules of Civil Procedure. IV. CONCLUSION For the reasons set forth above, Respondent All Tune & Lube respectfully submits that the Petitioner has failed to show good cause sufficient for this Court to reinstate the appeal filed in this matter, and Petitioner's Motion should be denied. Respectfully submitted. By: Saul Ewing LJLP ~ Y!1c FC ' Joe C. Hopkins, Esquue Supreme Court ID No. 85096 Penn National Insurance Tower 2 North Second Street, 7Th Floor Harrisburg, PA 17101 (717) 257-7525 Dated: May~, 2001 Attorneys for All Tune & Lube 82254.15125101 ~,.~, . "-_,_.7' '" ""H_,,' ""',' _ ' I~"I __ ,. "_,"', .~ -'r,- "-'~"\"":'. COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag.Oist.No.: 09-1-02 NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE, " PLAINTIFF: NAME and ADDRESS IcoURTNEY, ESQ., STEVEN C I 3211 N FRONT ST PO BOX 5300 ~ISBURG, PA 17110 ~ VS. OJ Name; Hon. ROBERT V. MANLOVE Add"'" 1901 STATE STREET CAMP HILL, PA Teleph"" (717) 761-0583 17011-0000 DEFENDANT: NAME and ADDRESS fALL TUNE AND LUBE 3 E SHADY LN ENOLA, PA 17025 L Docket No.: cv- 0000451-00 Date Filed: 12/12/00 I AT'l'ORNEY DEF PRIVATE : JOEL HOPKINS, ESQ. 2N2NDST 7TH FL ,HARRISBURG, PA 17101 ~ . ff THIS IS TO NOTIFY YOU THAT: Judgment: FOR DEFENDANT [!] Judgment was entered for: (Name) lIT.T. 'I'TTN1"- urn T.TTRR [!] Judgment was entered against: (Name) ('nlTR~, 'RsQ , STRVRlIT C'. in the amount of $ nn on: (Date of Judgment) (Date & Time) "l/?"l/n1 o Defendants are jointly and severally liable. o ,Damages will be assessed on: ' O Amount of Judgment Subject to Attachment! Act 5 of 1996 $ Amount of Judgment $ .00 Judgment Costs $ .00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ . Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ o This case dismissed without prejudice. o Levy is stayed for days or [j generally stayed. o Objection to levy has been filed and hearing will be,held: Date: Place: Time: 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 T S E JUD C T F M WITH YOUR NOTICE OF APPEAL. I certify that this is a true -J.3-o I Date ' < "f' ~..... ...,-." . ,/" '~'-.:Disi(i'ctJUstice f .. oC. 'l-~' '~,) '-., -.. J' . . _. '~_, ,"'" r f the proceedings'cot}f~ifli,og the judgment; iN' ~ ' ; 2'" ," -':~;istri6; j~~tice . I.,;;~~ ;.. ___j." . .~ ;. .,,~. -.. "'... -'<11 .. .. 2006 ... ....'" SEAL .... ~"'''' ... . . ~.. "1' \" ~#t.., _ ~..'~~ .'y.':'.!..r~t.~!,,,,r_1r 3~3-ol Date My commission expires first Monday of January, AOPC 315-99 ""'~"""""~,~~". ~,~l\""" ~" ~,- r 1'1 , ". , ,. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. of-232l Civil Term v. ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J.P. No. 1006, please strike the appeal filed by plaintiff in the above-captioned matter for failure to file a Complaint within twenty days of filing the Notice of Appeal from District Justice Judgment. Respectfully SUbmitte~:'1 ~7 r e-It"''- Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 Attorney for Defendant DATED: May 15, 2001 PRO PROTHY: Appeal stricken pursuant to (!~ T RUE copy FROM RECORD , I" Testimony wnereof. I here unto set my hano ';;d the seal of said Court at CarusIe.:;: GO' Ittz- ~ 1/ Thi~ (J.~~y f1 -: I ~~ . ~, ., .,' ProthonotarY 82002.15115/01 ';1 ,". "",,"",,,,..,-, - .." . ~ ,~ CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certifY that on thisZSth day of May, 2001, I served a true and correct copy of the foregoing Brief in support of Defendant's Response to Plaintiff's Motion to Reinstate Appeal, via First Class Mail, postage prepaid, upon the following: Steven C. Courtney, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, P A 17110-0300 q PC~ Joel C. Hopkins &2254.15/25/01 !~" ,"; '0_ '-'-'",,-- = c,',".-. ~--,'," ...< ~,." ,-P-! _I, ,. ~-- , -~-~. . -' ~ MAY 8 0 2DD1~ IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 2001-02321 Civil Term v. ALL TUNE AND LUBE, Defendant. BRIEF IN SUPPORT OF DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO REINSTATE APPEAL Defendant All Tune & Lube ("All Tune"), by and through its attorneys, Saul Ewing LLP, respectfully submits this Brief in Support of Defendant's Response to Plaintiff's Motion to Reinstate Appeal. I. PROCEDURAL mSTORY AND STATEMENT OF FACTS On or about December 12, 2001, Steven C. Courtney, Esquire, ("Petitioner") filed a civil complaint in Magisterial District No. 09-1-02 against All Tune alleging, inter alia, that All Tune improperly performed work on Mr. Courtney's 1996 Honda Accord. On March 22,2001, Petitioner, represented by counsel, presented his case to District Justice Robert V. Manlove. On March 23,2001 judgment was entered in favor of All Tune, and notice of the judgment was provided to both parties by mail. A true and correct copy of the Notice of Judgment in that case is attached hereto as Exhibit "A". On April 20, 2001, Petitioners filed a Notice of Appeal from District Justice Judgment with the Cumberland County Court of Common Pleas, and the Prothonotary assigned that case docket number 01-2321-CV. On May 15,2001, after 82254.15125101 r\;!('i, ,""~__ -r ,-:',<',-''''P'',;; ~,- ~ -, _-_'~ '7'--~'__,..,._r~"" _, ,_",", not having received service of a copy of Plaintiff's complaint and verifying that no such complaint had been fIled with this Court, All Tune fIled a Praecipe to Strike Appeal pursuant to Pa. R.C.P.I.P. No. 1006. On May 17,2001, the Cumberland County Prothonotary marked the appeal stricken pursuant to Pa. R.C.P.I.P. 1006. A true and correct copy of Defendant's Praecipe to Strike Appeal is attached hereto as Exhibit liB". On or about May 17,2001, All Tune received a copy of Petitioner's Motion to Reinstate Appeal. Petitioner's motion alleges that the United States Postal Service failed to deliver a copy of Petitioner's complaint, which was allegedly mailed to the Cumberland County Prothonotary on May 8,2001. Petitioner does not allege that a copy of the Complaint was served upon All Tune's counsel of record, or that it took any of several very basic measures to assure its complaint had been properly fIled. Only after All Tune filed a Praecipe to Strike Appeal five (5) days after Petitioner's complaint was to be filed did Petitioner undertake any efforts to determine the status of its alleged filing. II. QUESTION PRESENTED WHETHER PETITIONER'S FAILURE TO TAKE ANY BASIC MEASURES TO VERIFY THE TIMELY RECEIPT OF A MAILED COMPLAINT CONSTITUTES "GOOD CAUSE" EXCUSING ITS FAILURE TO TIMELY FILE A COMPLAINT PURSUANT TO THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. Suggested Answer: No m. ARGUMENT 82254.15/25(01 "1, ,- ~ ro,: ^."," L__~' -'7 1"1' -, ~> "',-, I --_.,,- ",To:'" ., Petitioner has failed to timely file a complaint with this Court and has failed to demonstrate any "good cause" sufficient to excuse his conduct. Rule 1004 of the Pennsylvania Rules governing District Justice procedure in civil cases ("the Rules ") provides that an appellant who was the claimant in a district justice action "shall file a complaint within twenty (20) days after fIling his notice of appeal." Pa. R.C.P.J.P. lO04A. A pleading that is sent by mail is not considered to be filed until it is received by the appropriate officer, in this case the Cumberland County Prothonotary. Pa.R.C.P.J.P.205.1. The Rules further provide that upon an appellant's failure to comply with Rule 1004A "the Prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record." Pa. R.C.P.J.P. 1006 (emphasis added). Rule 1006 gives this Court discretion to reinstate an appeal stricken pursuant to Rule 1006 for good cause shown. No hard rule exists for a court to determine whether a Petitioner has demonstrated "good cause" sufficient to disregard that party's failure to adhere to the Rules of Civil Procedure. The Pennsylvania Superior Court has, however, found good cause to exist where a Petitioner has made a good faith attempt to comply with the Rules. See Voland v. Gray, 438 Pa Super. 525, 652 A 2d. 935 (1995). Here, Petitioner has alleged no facts that demonstrate a good faith effort to comply with the Rules. Petitioner merely blames its failure to timely fIle a complaint on the United States Postal Service, who allegedly has yet to deliver the complaint nearly twenty days after it was mailed. Recent appellate authority in this Commonwealth, however, rejects 82254.15"125/01 VJ.,_H'y," ",~- '. ,",.~-,", . ."" .~ ~ ,",," ~, ,> ,,' .- . -'" the notion that a party can blame the mail when other reasonable and relatively effortless actions would have effected the timely fIiing of a document. In Hanni v. Penn Warranty Corporation, 442 Pa. Super. 160, 658 A.2d 1349 (1995), the Prothonotary struck an appeal after the appellant failed to fIie proof of service of its notice of appeal within the ten days provided under Pa.R.C.P.D.J. 1005(b). In denying Penn Warranty's petition to reinstate the appeal the trial court noted that the appellant "chose to trust the timeliness of the regular mail during the holiday season, when it could have used an Express Mail service, or brought the proofs of service to the Prothonotary by hand to be docketed within the ten-day limit." Id. at 163,658 A.2d at 1350. The Pennsylvania Superior Court determined that the trial court had not abused its discretion in denying the appellant's petition, and affirmed the trial court's decision. Like the appellant in Hanni, the Petitioner in this case failed to exercise even the most minimal effort to comply with the Rules. Petitioner could have easily taken any number of reasonable and relatively effortless actions to effect service, including hand delivering the appeal to the Prothonotary's office, sending the appeal via a courier (which can guarantee delivery dates) or, perhaps requiring the least amount of effort, calling the Prothonotary to confirm receipt and fIiing of its complaint. Petitioner also unreasonably failed to take any action after it possessed constructive notice that its fIiing was not timely received by the Prothonotary. Petitioner's cover letter to the Prothonotary dated May 8, 2001, requested the return of time-stamped copies of its complaint in an enclosed self-addressed stamped envelope. As of May 15, 2001, Petitioner had not received the requested copies, yet failed toÿ 82254.15125/01 :Ji-_,__,_~~ "~-", ~-'" ._~- ., I"!"" -~, ,~ , , ,. '.'; inquire as to the status of its filing. It was only after All Tune filed its Praecipe to Strike Appeal that the Petitioner undertook any efforts with respect to its filing. The seven (7) days between Petitioner's mailing its complaint and All Tune's filing on May 15,2001, provided ample notice that the complaint had not been received by the Prothonotary, and Petitioner's failure to act demonstrates anything but a good faith effort to comply with the Rules. In light of the above,' there can be no question that Petitioner did not make a good faith attempt to comply with the Rules and therefore no "good cause" exists to excuse its failure to comply with the Pennsylvania Rules of Civil Procedure. IV. CONCLUSION For the reasons set forth above, Respondent All Tune & Lube respectfully submits that the Petitioner has failed to show good cause sufficient for this Court to reinstate the appeal filed in this matter, and Petitioner's Motion should be denied. Respectfully submitted, By: Saul Ewing LLP ~ "iJc- FC ' Joe C. .Hopkins, Esqurre Supreme Court ill No. 85096 Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 Dated: May~, 2001 Attorneys for All Tune & Lube 82254.15125/01 "," r . -.{:"',~", ~ ,"~-"-' ' - ,~ ,F""''' COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. DisI.No.: 09-1-02 OJ Name: Hon. ROBERT V. MANLOVE Add'''' 1901 STATE STREET CAMP HILL, PA T"'phoo" (717) 761-0583 17011-0000 ATTORNEY DEF PRIVATE : JOEL HOPKINS, ESQ. 2N2NDST 7TH FL : HARRISBURG, PA 17101 .~!, ~* 1- THIS IS TO NOTIFY YOU THAT: Judgment: [i] Judgment was entered for: (Name) [i] Judgment was entered against: (Name) NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS IcoURTNEY, ESQ., STEVEN C ., 3211 N FRONT ST PO BOX 5300 ~ISBURG, PA 17110 ~ VS. DEFENDANT: NAME and ADDRESS IALL TUNE AND LUBE 3 E SHADY LN ENOLA, PA 17025 L Docket No.: cv- 0000451- 00 Date Filed: 12/12/00 ., ~ .'.....'... ,- .,- , . -ti FOR nRFlrnD~NT lIT.T. 'I'f1'IIl'R lIl\Tn T.TTRli! in the amount of $ nn on: C'.DTTRTNRV, RRO RTF:VF:IIT C o Defendants are jointly and severally liable. o Damages will be assessed on: ',0 This case dismissed without prejudice. O Amount of Judgment Subject to AttachmenV Act 5 of 1996 $ o Levy is stayed for days or [j generally stayed. o Objection to levy has been filed and hearing will be. held: Date: Place: Time: (Date of Judgment) (Date & Time) '1/?'1/n1 . Amount Of Judgment Judgment Costs Interest on Judgment Attorney Fees Total $ $ $ $ $ .00 .00 .00 .00 .00 Post Judgment Credits Post Judgment Costs $ $ ------------ ------------ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOT ARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COpy OF T S E JUD C T F M WITH YOUR NOTICE OF APPEAL. 3193-01 Date I certify that this is a true ';;<3-0 J Date My commission expires first Monday of January, AOPC 315-99 ~_'Ri_ ,~.. ,.... __ ." 1"""+ -, ... j.f.......'..'.; ",;"" ,::.:pis~rictJUstice ;. 0.. ". ~. '~.~I . , -' ',~ -~'-' -.... r 'f the proceeding5cor}f?j~i,og the judgme!1!; . .,........ -' -', '. .:' ~ " :~ iJV' . : ;,Districit.Ju~tice . '.':.~~:.~-:;.- .{ 2006 ~.. .,... ~ -..." ~ . . - . -" , ~) "t. -. ..' SEAL ~.,. ",,1.> ~.. . ~ ~... ,..#~ .i" ....."r.>'-~"t.~!'-..~1......'-- IN THE COURT OF COMMON PLEAS CUMBERLANDCOUNTY,PENNSYLV~A STEVEN C. COURTNEY, Plaintiff, No. Qf-2321 Civil Term v. ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J.P. No. 1006, please strike the appeal filed by plaintiff in the above-captioned matter for failure to file a Complaint within twenty days of filing the Notice of Appeal from District Justice Judgment. Respectfully SUbmitted~1 ~7 rCV-tt'- Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7"' Floor Harrisburg, PA 17101 Attorney for Defendant DATED: May 15, 2001 PRO PROTHY: Appeal stricken pursuant to (7~~. t RUE copy FROM RECORD , '. T~""lmo. ny wnereof, I here unto sat my llano ,. "'" I at CartlsM Pa ;l;i\l the ~ at said court _ . ~ I T.ni~/t(1-~~Y J~hOn~ lnOOZ.131l5J01 . .";'0.0. _,~~~..."""'~_ ~~ , . ~. CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on thisZSth day of May, 2001, I served a true and correct copy of the foregoing Brief in support of Defendant's Response to Plaintiffs Motion to Reinstate Appeal, via First Class Mail, postage prepaid, upon the following: Steven C. Courtney, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, P A 17110-0300 q c=>C~ Joel C. Hopkins 82254,15125/01 ",\lil~!(I;;f..ni1\l1l!i~~Wb,6*~f l~WU';I'!.@l;ij~ ",,",' ",iL,,~,i?(0~{~~ "" ~ ,. .-. COMMONWEALTH OF PENNSYLVANIA (1 >?/jp/J;;'T~! czt;/ J;~S ~ JU~IAL DIS;~' NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT Entd in Protlw"s Office 4-20-01 COMMON PLEAS No, 01-2321 Civi1 Term NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case mentioned below. CITV V., A"T\J-RE 01'" APP<e;L.I...ANT OR l-l1'S ATTO'nNEY QR AGENT QNL Y 'when t'n"IS notation is require will operate as was Claimant (see Pa, R,CP,J,P, No, 7007(6) in action before District Justice, he MUST FILE A COMPLAIN'l"'within",twenty (20) days after filing his NO TICE ofAPPE;AL . Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE "',' ,",-, ". 1,.," .',' ", " , ' (This section of form to be used ONL Y when appellant was DEFENDANT (see Pa, R,C,P,J,P, Nd\7Q07t7Ui1 action before District Justice, IF NOT USED, detach from copy of noticeofappea( to ,?e served.Y~o(' appellee), ' ' ' , , ,",',.\', ' ,-' , , - PRAECIPE: ToProthonotary Enter rule upon. Name of appell'ee(s) within twenty (20) days after service of r:ule or suffer- entry< of judgment of non pros. ,appellee(s)"to file a complaint in this appeal (Common Pleas No. jifl!!fture pf appellant or. his at,t-omey or agent RULE: To Name of appellee(s) , appellee(s) r1J cr M fT1 MENTOI U1 fT1 I rhe date c ~ , fT1 I fT1 \ U1 o Postage $ ~ feputy I I I i I C1l 'YQltJ ,are .notified "that .a rule' is, hereby entered ,upon you to ,m~ _. ~ ,,,,' e,rtifi~.d 0' fT1 postage $ fT1 U1 Certltied Fee o Return Receipt Fee ,..lJ (Endorsement Required) : r4 ,CJ Restricted DeliveT'j Fee 'Cl (E(ldorSement Required) Certified Fee Postmark ...n M o o Return Receipt Fee (Endorsement Required) Restricted Deiivery Fee (Endorsement Required) tr tr o .... ~ \ tolq o o cr fT1 ! 0 '0 cr ",m ,;,.L~;w.:;;~~~""'\'I?="""""""'~<';_""""":~'''''~''':;;'\"!'''"''I'C~'''11\\'i'''1)"~\'I,'1~"""i~~~ ,,,,,,,,.,;:,,,;...,,,,,,,,,.,. ~'.,",[,w, :",~;""";_ PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FilE COMPLAINT (This proof of service MUST BE'FILED WITHIN FI,VE (5) DA YS AFTER filing the notice of appeal, Check applicable boxes) COMMOMWEAljO" PZ;, M,SYZ;{j" COUNTY OF ~m. ;ss AFFIDAVIT: I hereby swear or affirm that I served ria cOPS of the N:o,tw1;Q&?peal, Common Pleas No,',Qf,~-?3,"~(ponthe DisUlct Justice, d,esignated therein all ':I7date of service) ~ ,;11--f-' ,0, II~onal S~y (certified) {registered} mail. sender's rec(~ attjlthed hel'8to,.~ upon the app~ie((,ame) I}; , nt'",t/ :e~,__~_~~,__ all ,'1~/C)( ,p~D by personal service D~ (certi'fied) (registered) :nail, sender's receipt attached her'eta. D' and 'further that I served the Rule to File a whom the Rule was addressed on mail, sender's :receipt attached hereto. Complaint-.accompanying the- ilbove Notice .of Appeal up0n the appellee\s) "to ,19~, D' by pet"sanal Sf?i'?J1-i:iY-rcertitjedl (t-egisterecJ) '. ~ /i(/ ~, ~~-~::'"~~~!.Dt/:JreDfi)friant SWORN (AFFIRMED) AND~SCRIBEDBEFOREME THIS 'CJ77f-. DAY OF ''JPfli' ,41.200/. Signature of official before whom ffidavit was made "r(J/)~.y ,'..p2tlLl~' Title of official My commission expires on ,19_, c' ,~~, .,~ r ';1[, U(~ ',1 ~,~ .ui'P ~' ." /H k' " rt1rtl :;r:) j~~-;:,# Z:JJ 1",) _.-.l'n m5~ "J,q c..!l c,gf~ -'< ... t<D ''0 ~q :J,t ::o-<,d '-P. f.) in '- =-t Z :::> :; ~ 0' 0< NOTARIAL SEAL CAROL A. LYTER, NOTARY PUBLIC Harrisburg, Dauphin County My Commission Expires Dee, 28 2004 , ~ '.0-=.,. R{b. iliw.Jff;; COM~ .:;,TH OF PENNSYLVANIA !] C9URT(l C<W'MO~P Er :J/Pi~11frJ ~ . . JU ICIAL DIST. ICT , NOTICE OF APPEAL FROM DISTRICT ,JUSTICE JUDGMENT Entd in Pmthy's Office 4-20-01 COMMON PLEAS No, 01-2321 Civil Term NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal trom -the judgment rendered by the District Justice on the date and in the case mentioned below. CITY s~ (Defendant) 1/7~ 4nt:l VS, SI A....URE OF APPELLANT OR HI& ATTORNEY OR AGENT This block will be signed ONLY when this notation is requir R,C,P,J,P, No, 1008B, This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. If appellant was Claimant (see Pa, R,C.P,J,P, No, 1001(6) in action before District Justice, he MUST FILE A COMPLAINT within twenty (20) days after filing his NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa, R,C,P,J,P, No, 1001(7) in action before District Justice, IF NOT USED, detach from copy of notice of appeal to be served upon appellee), PRAECIPE: To Prothonotary Enter rule upon Name of appellee(s) , appellee(s), to file a complaint inthis appeal (Common Pleas No. ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. Signature of appellant or his attorney or agent RULE: To Name of appeffee(s) , appellee(s) (1l You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date-of service of this rule upon you by personal service or by certified or registered mail. (2) If you do not file a complaint within'this time, a JUDGMENT OF NON PROS WI LL BE ENTERED AGAINST YOU, (3) The date of service of this rule if service was by mail is the date of mailing. Date: ,19_, Signature of Prothonotary or Deputy AOPC 312-84 COURT FILE TO BE FILED WITH PROTHONOTARY -.'\-'~!f'1J;11~'"~~~on~1il:,~~~;wm~.m.l .1 ~ . _ ~ .~ ""r.'-. '~~~-""h_ _-" """'0- .,." -"'""""-' ,_~' "wc, _~,,_, ",-,-' "L''''''-- -'K",," -">'-~~"-<U", "" ~''',~",_',~ ~ -f'ht- PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN FIVE (5) DA YS AFTER filing the notice of appeal, Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIOAVIT, I hereby swear or affirm that I served o a copy of the Notice of Appeal, Common Pleas (date of service) , 19_, receipt attached hel'eto, and upon the appellee, (name) ,19_D by personal service No._ , upon the District Justice designated therein on D by personal service D by (certified) (registered) mail, sender's "__~______~. .. on [J bV (certified) (registered) maii, sender's receipt attached hereto. o and further that I served the Rule to whom the Rule was addressed on mail, sender's receipt attached hereto. File a Complaint accompanying the above Notic~ of Appeal upon the appellee(s) to ,19~, D by personal set'vice 0 by (certified) (registered) SWORN {AFFIRMED) AND SUBSCRIBED BEFORE ME THIS_ DAYOF ,19_, Signature of affiant (~ ~)~' ~ ".---, Signatur~ of official before whom affidavit was made n'ifO;, -/'., Title of official .l".J ,-r, My cornmission expires on ,19_, ---- -... '=> d LN '- ~ f3 ~> "r- c'.,:':....' ~." ~ ~ ~-'.-, ,~ ' '>J ~i ~j \ ~ '?\ \.~ \- \' ~ -------~-~m__m__.~.~""~~~wm~\)"o"",w:'il',_~t'%*'_';;;'''"\f''F.-~P'C>',- ",,,,-,,,,__!,,,:,,';~_',,,g;; ,,"..i,","'" ",,!""-F.~".]!'-f~,':""II6P,pq STEVEN C. COURTNEY, Pblintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v : Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant PLAINTIFF'S MOTION TO REINSTATE APPEAL AND NOW, comes the Plaintiff, Steven C. Courtney, Esquire, and respectfully moves this Honorable Court to reinstate his appeal and in support thereof avers as follows: I. Plaintiff, Steven C. Courtney, Esquire, filed an appeal of the District Justice Judgment relative to the above referenced matter on or about April 20, 200 I. 2. On April 23, 2001, Plaintiff filed the Proof of Mailing of the appeal with this Court. 3. On April 27, Plaintiff filed a Proof of Service relative to Defendant's receipt of the appeal to the Court of Common Pleas. 4. On April 27, Plaintiff filed a Proof of Service relative to the District Justice's receipt of the appeal to the Court of Common Pleas. 5. On May 8, 2001, Plaintiff timely mailed to the Prothonotary's Office of the Court of Common Pleas of Cumberland County for filing an original and three (3) copies of Plaintiffs Complaint relative to the above referenced matter. A true and correct copy of the filing letter and Complaint is attached hereto, incorporated herein and marked as Exhibit "A". 6. On May 16, 2001, Plaintifflearned that Defendant through its counsel filed a Praecipe to Strike Plaintiff's Appeal pursuant to Rule 1006. A true and correct copy of the letter Document #: 206278.1 I.~","""",-,.. - . 'T~II .~ ~,.,~- from Defendant's Counsel is attached hereto, incorporated herein and marked as Exhibit "B". 7. Pursuant to Pa.R.c.PJ.P. No. 1006, this Honorable Court may reinstate an appeal that is stricken upon a showing of good cause. 8. Plaintiff avers that the above appeal should be reinstated for the following reasons: a. Plaintiff prepared and mailed his Court of Common Pleas Complaint in a timely manner; b, The letter addressed to Cumberland County's Prothonotary's Office enclosing the Complaint was not returned to Plaintiff; c. Plaintiff acted in good faith and reasonable belief that the Complaint would be received by the Prothonotary's office in a timely manner for filing; d. Plaintiff has just learned that the letter enclosing the complaint was not received by the Prothonotary's Office in a timely manner; e. Plaintiff immediatley filed the instant Motion upon learning of the filing Defendant's Praecipe to Strike Plaintiff's appeal; f. Plaintiff will be unduly and unfairly prejudiced by the striking of his timely appeal filed in the above referenced matter; g. Defendant will not be prejudiced by the reinstatement of Plaintiff s appeal and the filing of the Complaint. Document #: 206278.1 i't~'~ ~" ~~~ rl" , ',j ~ "~ ~. " - WHEREFORE, Plaintiff, Steven C. Courtney, Esquire, respectfully requests that this Honorable Court grant Plaintiff's Motion to Reinstate Plaintiffs Appeal and allow Plaintiff to file his Complaint. Respectfully submitted, METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By Steven . Co 3211 North ron P,O, Box 5300 Harrisburg, PA 17110-0300 (717) 238~8187 Attorney ID No.: 74669 Attorney for Plaintiff Dated:flJyl,{; ,2001 Document #: 206278.1 ,-,,,,,,,,!f'''''~'~''' -",- ~ 'FI,"f . ",.,..". ~" ,~~ ""; VERIFICA nON I, Steven c. Courtney, do hereby certify that the statements made in the foregoing Motion are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. ~4904 relating to unsworn falsification to authorities Dated :rf;r..jc ( Steven . Document #: 162754.1 ''''~~''~~ "...... 11 -~ ~~. (C Re: ""~C-'I1!:,""",< 8 May 2001 SINCE 1888 3211 North Front Street PO, Box 5300 Harrisburg, PA 17110-0300 717-238-8187 Fax: 717-234-9478 Cumberland County Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 Other Offices Colonial Park 717-652-7020 Mechanicsburg 717-691-5577 Shippensburg 717-530-7515 Steven C. Courtney v All Tune and Lube Case No. 2001-2321 Civil Term Dear Sir or Madam: (Q) Enclosed herein for filing please find an original and three (3) copies of Plaintiff's Complaint with reference to the above captioned matter. Kindly file the enclosed documents and return the time- stamped copies to my office in the enclosed self-addressed and stamped envelope contained herein.' lP Please contact me with any questions or concerns. v Very truly yours, METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Steven C. Courtney, Esquire SCC/dlr Enclosures JamesF.Carl Edward E. Knauss, IV* Jered L. Hock Karl R. Hildabrand* Steven P. Miner Clark DeVere E, Ralph Godfrey Steven C. Courtney Francis J. Lafferty, IV David H. Martineau Andrew W. Norfleet Steven C. Skoff Melissa L. Stickel .. Board Certified in civil trial law and advocnClJ by the National Board afTrial Advocacy Document #: 204425.1 ,_ ___ __ __'~,C'_' -"','~ -'~-' ~,. .'.'-" ,>. ~ ~ <- .. .J...~ SAUL .EwrNG~p ATTORNEYS AT LAW JOEL C, HOPKINS Phooe: 717-257-7525 Fax: 717-257-7590 jhopkins@saul.com www.saul.com May 15, 2001 Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 RE: Steven C. Courtney v. All Tune and Lube Case No. Ol-2321-CV Dear Mr. Long: Enclosed please find Defendant All Tune and Lube's Praecipe to Strike Appeal pursuant to Pa.R.c.PJ.P. No. 1006. Please file the original and return a time-stamped copy to our office in the enclosed envelope. Thank you for your anticipated cooperation. By copy ofthis letter all parties of record have been served with the attached filing. Thank you for your anticipated cooperation. Sincerely, .11/ ~-7 f?L-'-/t ~ Joel C. Hopkins JCH/aja Enclosure / cc: Steven C. Courtney' 2 North Second Street, 7th Floor. Harrisburg, FA 17101.1604. Phone: (717) 257.7500. Fax: (717) 238-4622 82003.15/15/01 BALTIMORE CHESTERBROOK HARRISBURG NEW YORK PHILADELPHIA PRINCETON WILMINGTON A DELAWARE UMITED LlABlUTY PARTNERSlUP I:~ -"- .~,,- '" ,-" 1'1- -', ,., - - IN THE COURT OF COMMQN PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 00-2321 Civil Term v. ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J.P. No. 1006, please strike the appeal filed by plaintiff in the above-captioned matter for failure to file a Complaint within twenty days of filing the Notice of Appeal from District Justice Judgment. Respectfully SUbmitted:"1 -=..::7 r C-It'- Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 Attorney for Defendant DATED: May 15, 2001 PRO PROTHY: Appeal stricken pursuant to Pa. R.C.P.J.P. No. 1006. 82002.15115/01 '".- j--' ~-",.. "1 1<'''-, l.-f.,W:, '-',"" -_.~,-~",-- , ! 0; -,-~- . - , ~ CERTIFICATE OF SERVICE I, Aimee J. Albright, hereby certifY that on this 15th day of May, 2001, I served a true and correct copy of the foregoing Praecipe to Strike Appeal via First Class Mail, postage prepaid, upon the following: Steven C. Courtney 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 dm1f~ Aimee J. Al ght Secretary to Joel C. Hopkins, Esquire 82002.15115101 )13:1' "..' -)- ~.," .;, ',' ~ ".- "'. , -j"I'7-" -<." . 0 ~ . I, STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant CERTIFICATE OF SERVICE I, Steven C. Courtney, Esquire, do hereby certify that on MafJ-_, 2001, a true and correct copy of the Plaintiff's Motion to Reinstate Complaint was served upon the following individual by First Class United States Mail to: Joel C. Hopkins, Esquire 2 North Second Street 7'h Floor Harrisburg, PA 17101 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Steven C, Courtney, Esq . e 3211 North Front Street ' P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney ID No.: 74669 By Attorney for Plaintiff Document #: 206278.1 "";~""'~~'fi'" .'. /'1 ! ~ ~~~~ ~ . - '~~ ,,-~ - ~~ "" )'!l ~.~~ ~~ g ,.- .c",,,_,,, "" _ ill_IT' rr.:mijI!'\;;;;Ir'l!['twf~m~'t!O!f~..~__ljjI~~_~~1&!~""'i_';'- 0 "-.-,,"" r:-::, G , , m. r',.) ~-'C) C-> - .., 5 c.~. , (- ':-) 2~ :.,.) .-.) -.-! ~n ~~ hO -< - ."..' 'rJ~ ~;'-'" -""-i'''',;,'fi=r-'.Je?e,;!(''<1i~~f!-:'rf,~:!W1j'!'~~'Vj!11~N:(::ql~jti'r1!}iJl!,'f.~i)l;1m~f~f'(i';[ .Q:jf~',,;!.:)NX;:tL1i~; . STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND' COUNTY, PENNSYLVANIA vs. 01-2321 CIVIL ALL TIJNE AND LUBE, Defendant CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE PLAINTIFF'S APPEAL ORDER AND NOW, this ;2 S' day of May, 200 I, a rule is issued on the defendant to show cause why the relief requested in the within petition ought not to be granted. This rule returnable ten (10) days after service. BY THE COURT, J1apuD L DS -J..9-{)/ , ~ c. ,"_,., " ,- .,. . ,"I L ..e= ,',"",., , "., ,- ~ ,(\6 ,,'" ~' \ c~\ 'l,::::"t"\'_~'\\ \~J >'n"V,;:),...,\'v'-':~,: ., \1t':~j1 \(\;~';_-~: \ ',' :"rCi ,.','. ',N\i" ~),),' .' , \, ';'-:"1 \.. .\:'.\~ ,'~. \ \\.J \ \~ -~~ r'/ ;,.-" < ~;' .1 L ""'~, l .,~,~,,~ . '. ",~ ~~I""_""-~'_> h' ~, ~<-~-'~"-'" ~i'nC"', j;-,/"-",;~,,. d;"~"" ';"''''1 "!W"-'"-".i<-'\O':"'~f':'K'i5!i~k'\im1{'t$]!,*~ .,f\ ')'..) ~ ___;l,ilJlfl!~~!'l<!iI'li,n;p:f:i","'~~""'r!'i'1(o;'!W';"--;0,\",,!,,{,~E""-"f"~f-W"W!'I;-_1~'1'1)~~~qm,~_~~~'1~~1l'!' " . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 2001-02321 Civil Term v. ALL TUNE AND LUBE, Defendant. RESPONSE TO PLAINTIFF'S MOTION TO REINSTATE APPEAL Respondent, All Tune and Lube ("All Tune") by and through its attorney's, Saul Ewing LLP, hereby responds to Plaintiff's Motion to Reinstate Appeal as follows: 1. Admitted. 2. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 2. 3, Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contailled in paragraph 3. 4. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 4. 82248.15/25101 ;,.,'~ ~c". ., -~ '''~_'''"'. "",.,,"_~" ~~_'", .~. __ .'-' ,,' " ',_' ,_,~ """"Iml~ __ ,_ "'''"'"..,__-.,. 0 ,_ _'__ . " 'F .. ~_. ~,-. ~ - .,. " ~ ., - 5. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 5. 6. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 6. 7. Admitted. 8. Denied. The averments of paragraph 8 are legal conclusions to which no responsive pleading is required. To the extent the averments of paragraph 8 are deemed factual, after reasonable investigation All Tune is with out knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 8, and same are denied. WHEREFORE, All Tune respectfully requests this Court enter an Order denying Plaintiff's Motion to Reinstate Appeal. Respectfully submitted, By: Saul Ewing LLP ,AI ~ Pcv-t1~ Joel C. Hopkins, Esquire Supreme Court ID No. 85096 Peun National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 Dated: May~S, 2001 Attorneys for All Tune & Lube 82248.15/25/01 "'.0 ~'" ,-'-' ~ -~- ;;,,-"";":,~'f''.:':'', :"--';' '_"" -:c-'''' ,-" '.-). _"'C<"'~"';__'}C' ,'_ ~-T-T' '-'~ _~., > _ . O' __o_'_'-,,"<~,,__., _~ ,_0 ,., " . ," ~ -" ~, ->, ~. -. ,. ~ . CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certifY that on this2Sth day of May, 2001, I served a true and correct copy of the foregoing Response to Plaintiff's Motion to Reinstate Appeal, via First Class Mail, postage prepaid, upon the following: Steven C. Courtney, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 c-; PC1~ Joel C. Hopkins ">,;k, v .' :"->-_'_"''T_,_'''.,'''!;~_,--_C~_--''-'~-'''' '-'<' '-"'<---~:'~'l'-I'~'--;.-,,'~,'_~-_,~__. - .t__~"'"'~-_~- n_'.-,', _~)'" -T. ,"~"~ ___, ."__ _ ,~, ,n ~,,,,,_ " "0, _ "._ , ~ . , O~_ ~ ~ ~'_I _M~ .~. ~ - -.. -~,","""~~ =-,~.'"'~,",-- ~"'~"~~~.=,~ (j ~:; .L~ ;:-~ ;-:-'1/-:- L'. /'i- (j::"'- :,:c' :-', ..,...-....:- --1 ''''J --<, ()"\ r C'" C~ -; Cq~ ,*~P.lfI~~,IM'!li'~.w~!WW1!m~IN_q!ljiI~, _, (' ~~~rl'Of," _""!I;",."~~.,,,.~~ STEVEN C. COURTNEY, Plaintiff vs. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA 01-2321 CIVIL ALL TUNE AND LUBE, Defendant CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE PLAINTIFF'S APPEAL ORDER AND NOW, this S" day of July, 2001, a brief hearing in the above captioned matter is set for Thursday, August 9, 2001, at 10:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. BY THE COURT, Steven C. Courtney, Esquire Plaintiff ~Oy Joel C. Hopkins, Esquire For the Defendant :rlm {il. "", '___'___~_ ,," r. _ ",_, ',oT'-"","" ___ , ",,"r -- '<"':'17'"1 - ~ ---,--<< ~ .- _. - ::r ~lMl ""'" ~, ,.~ ,'~ - ..u , ,~ r U,\"..ii\l\Q(,I\\I':Jrl :/ll ",~,..I :,.;: -;---' .;. ,:::::~:!,gV~ I \ f\., i f1 r~. I ; l'., ! l.'--~ .., , . J " '. I A:_l'1; ,..' , , .. .... - ", ,,,,,".' .,,:~..., = '''Cc'''''''~ .~. ~ " "'c'_ <~.-..., ,.""" '.,"", >""<' 7'_"~'" -"'~~""""'~""~"'''"''''--''-''''"''~lrJ cko , "' "T~ l!i'il!IllT'!f~~l~~~m!f'\jl~tl!"-,j>:Ji""'fi~<i"'"">t.,r":"'~l'-1""'~J"-'~"'l\-q;;""I)1ii~';~t"'~W1"~I'iN'l'~,~"-\~~'!"IllI'~~J!"'f'lS''''']'1'!Wll''fiQ!~ "'I,..' U ~~, , ' ~ ~ r " , ,- "I';W 1,: .i.: MAY 3 020CUff} IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 2001-02321 Civil Term v. ALL TUNE AND LUBE, Defendant. BRIEF IN SUPPORT OF DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO REINSTATE APPEAL Defendant All Tune & Lube ("All Tune"), by and through its attorneys, Saul Ewing LLP, respectfully submits this Brief in Support of Defendant's Response to Plaintiff's Motion to Reinstate Appeal, I. PROCEDURAL mSTORY AND STATEMENT OF FACTS On or about December 12, 2001, Steven C. Courtney, Esquire, ("Petitioner") filed a civil complaint in Magisterial District No. 09-1-02 against All Tune alleging, inter alia, that All Tune improperly performed work on Mr. Courtney's 1996 Honda Accord. On March 22,2001, Petitioner, represented by counsel, presented his case to District Justice Robert V. Manlove. On March 23,2001 judgment was entered in favor of All Tune, and notice of the judgment was provided to both parties by mail. A true and correct copy of the Notice of Judgment in that case is attached hereto as Exhibit "A". On April 20, 2001, Petitioners filed a Notice of Appeal from District Justice Judgment with the Cumberland County Court of Common Pleas, and the Prothonotary assigned that case docket number 01-2321-CV. On May 15, 2001, after 82:l54,15/25101 7""" ~ ',-" ,~,-,-,-'r':"F""~""" - ,U .,. ,>,',' """'T,'''''''fml~,>,~,,''''~~A:''_',,_~~-,. ',_, C"_=" ,y"-,, ". -., '"", .e=..". _,_, ,T;<O'," _ ._ :,'~"r_' .. ',,~_,r_ not having received service of a copy of Plaintiff's complaint and verifying that no such complaint had been filed with this Court, All Tune filed a Praecipe to Strike Appeal pursuant to Pa. R.C.P.I.P. No. 1006. On May 17,2001, the Cumberland County Prothonotary marked the appeal stricken pursuant to Pa. R.c.P.J.P. 1006. A true and correct copy of Defendant's Praecipe to Strike Appeal is attached hereto as Exhibit "B". On or about May 17, 2001, All Tune received a copy of Petitioner's Motion to Reinstate Appeal. Petitioner's motion alleges that the United States Postal Service failed to deliver a copy of Petitioner's complaint, which was allegedly mailed to the Cumberland County Prothonotary on May 8, 2001. Petitioner does not allege that a copy of the Complaint was served upon All Tune's counsel of record, or that it took any of several very basic measures to assure its complaint had been properly filed. Only after All Tune filed a Praecipe to Strike Appeal five (5) days after Petitioner's complaint was to be filed did Petitioner undertake any efforts to determine the status of its alleged filing. II. QUESTION PRESENTED WHETHER PETITIONER'S FAILURE TO TAKE ANY BASIC MEASURES TO VERIFY THE TIMELY RECEIPT OF A MAILED COMPLAINT CONSTITUTES "GOOD CAUSE" EXCUSING ITS FAILURE TO TIMELY FILE A COMPLAINT PURSUANT TO THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. Suggested Answer: No III. ARGUMENT 82254.15/25/01 ,~t -'.~." ---\_""':'~':'F':I":,!' " -...^_..,; ~"" ,~.,. '".. C,' _,..,.. 1'''-; Petitioner has failed to timely file a complaint with this Court and has failed to demonstrate any "good cause" sufficient to excuse his conduct. Rule 1004 of the Pennsylvania Rules governing District Justice procedure in civil cases ("the Rules ") provides that an appellant who was the claimant in a district justice action "shall file a complaint within twenty (20) days after filing his notice of appeal." Pa. R.C.P.J.P. 1004A. A pleading that is sent by mail is not considered to be filed until it is received by the appropriate officer, in this case the Cumberland County Prothonotary. Pa.R.C.P.J.P.205.1. The Rules further provide that upon an appellant's failure to comply with Rule 1004A "the Prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record." Pa. R.C.P.J.P. 1006 (emphasis added). Rille 1006 gives this Court discretion to reinstate an appeal stricken pursuant to Rule 1006 for good cause shown. No hard rule exists for a court to determine whether a Petitioner has demonstrated "good cause" sufficient to disregard that party's failure to adhere to the Rules of Civil Procedure. The Pennsylvania Superior Court has, however, found good cause to exist where a Petitioner has made a good faith attempt to comply with the Rules. See Voland v. Gray, 438 Pa Super. 525, 652 A 2d. 935 (1995). Here, petitioner has alleged no facts that demonstrate a good faith effort to comply with the Rules. Petitioner merely blames its failure to timely file a complaint on the United States Postal Service, who allegedly has yet to deliver the complaint nearly twenty days after it was mailed. Recent appellate authority in this Commonwealth, however, rejects 82t54.15125/01 {. - '."' , , -"7,";'.'?'P,-> '~'f'-,; '.' ,- . <',^," <" .., ~ ~, ~- < !''"'I' V,[,,_ {':"_""'--~ ,',' _.~- , ,_" >" _'''' ',' """'r"' ~=- r ",., 1'~ , _, "0___ ,_"c,. . , ~ 0' . . the notion that a party can blame the mail when other reasonable and relatively effortless actions would have effected the timely filing of a document. In Hanni v. Penn Warranty Corporation, 442 Pa. Super. 160,658 A.2d 1349 (1995), the Prothonotary struck an appeal after the appellant failed to file proof of service of its notice of appeal within the ten days provided under Pa.R.C.P.D.J. 1005 (b). In denying Penn Warranty's petition to reinstate the appeal the trial court noted that the appellant "chose to trust the timeliness of the regular mail during the holiday season, when it could have used an Express Mail service, or brought the proofs of service to the Prothonotary by hand to be docketed within the ten-day limit." Id. at 163,658 A.2d at 1350. The Pennsylvania Superior Court determined that the trial court had not abused its discretion in denying the appellant's petition, and affIrmed the trial court's decision. Like the appellant in Hanni, the Petitioner in this case failed to exercise even the most minimal effort to comply with the Rules. Petitioner could have easily taken any number of reasonable and relatively effortless actions to effect service, including hand delivering the appeal to the Prothonotary's office, sending the appeal via a courier (which can guarantee delivery dates) or, perhaps requiring the least amount of effort, calling the Prothonotary to confum receipt and filing of its complaint. Petitioner also uureasonably failed to take any action after it possessed constructive notice that its flling was not timely received by the Prothonotary. Petitioner's cover letter to the Prothonotary dated May 8, 2001, requested the return of time-stamped copies of its complaint in an enclosed self-addressed stamped envelope. As of May 15, 2001, Petitioner had not received the requested copies, yet failed to 82254.]5/25101 f," , '~~'t"?,--"';,,, ':' ,~:c;"!-~;-!''''Zc~''''' ,'", - ~" ',-" : ',e, ','" "~:1'"':1 ,~,:-, -,"C''''.' '0 .".' ,-";.",,- l-- --', r 1- '-,.,' ~ " ,,- inquire as to the status of its filing. It was only after All Tune filed its Praecipe to Strike Appeal that the Petitioner undertook any efforts with respect to its filing. The seven (7) days between Petitioner's mailing its complaint and All Tune's filing on May 15,2001, provided ample notice that the complaint had not been received by the Prothonotary, and Petitioner's failure to act demonstrates anything but a good faith effort to comply with the Rules. In light of the above, there can be no question that Petitioner did not make a good faith attempt to comply with the Ru1es and therefore no "good cause" exists to excuse its failure to comply with the Pennsylvania Ru1es of Civil Procedure. IV. CONCLUSION For the reasons set forth above, Respondent All Tune & Lube respectfully submits that the Petitioner has failed to show good cause sufficient for this Court to reinstate the appeal filed in this matter, and Petitioner's Motion should be denied. Respectfully submitted, By: Saul EW.ing LLP ~ tk pC ' Joe C. Hopkins, Esqurre Supreme Court ID No. 85096 Penn National Insurance Tower 2 North Second Street, 7th Floor Harrisburg, PA 17101 (717) 257-7525 Dated: May~, 2001 Attorneys for All Tune & Lube 82254.15/25/01 Fr_~ "' ", . ~ '"'""'- '-"}"I ,- _00.,__,,__ ,- -- - ~"-" . -, -, -I .',' r - I~- --- - '-. '.-' -,,~t......~~i COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag, Disl. No.: 09-1-02 OJ Name: Hon, ROBERT V. MANLOVE Add"'" 1901 STATE STREET CAMP HILL, PA Tel'phoo, (717) 761-0583 17011-0000 ATTORNEY DEF PRIVATE : JOEL HOPKINS, ESQ. 2 N 2ND ST 7TH FL HARRISBURG, PA 17101 f': ;,~ c, :;. NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE, ., PLAINTIFF: NAME and ADDRESS 'coURTNEY, ESQ., STEVEN C -, 3211 N FRONT ST PO BOX 5300 ~ISBURG, PA 17110 ~ VS. DEFENDANT: NAME and ADDRESS fALL TONE AND LUBE 3 E SHADY LN ENOLA, PA 17025 L Docket No.: CV- 0000451- 00 Date Filed: 12/12/00 -, ~ THIS IS TO NOTIFY YOU THAT: Judgment: FOR DEFRNDlINT [!] Judgment was entered for: (Name) ll. T.T. 'I'T1NR urn T.TTRFo [!] Judgment was entered against: (Name) COURTNEY, FoRO . RTF.VF.1IT C in the amount of $ 00 on: o Defendants are jointly and severally liable. [J Damages will be assessed on: . 0 This case dismissed without prejudice. O Amount of Judgment Subject to AttachmenVAct 5 of 1996 $ o Levy is stayed for days or 0 generally stayed, o Objection to levy has been filed and hearing will be, held: (Date of Judgment) (Date & Time) 1/7.1/01 . . Amount of, Judgment . $ .00 Judgment Costs $ .00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits $ . Post Judgment Costs $ ------------ ------------ Certified Judgment Total $ Date: Place: . Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOT ARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COpy OF T S E JUD C T F M WITH YOUR NOTICE OF APPEAL. ~i13~ol Date '- I certify that this is a true '~3 -0 I Date My commission expires first Monday of January, AOPC 315-99 ~ 'e ~ '-I-I" ,,-,-,-- ,"f' ~~'. -'-' -.' .d( '-, ,\ \ \ . ~-!l\'.... _ . '-;'~~ , '.. ". pistrich~ustice ! '-0; '" -_i:~ .--..) '. r. .. ,'. -' -~ '-", -.,' '".- f the proceedingS'cor!,f~iHi.Og thE! judQ':IEl!1!:. . ~;;,;' .,.:I~....,,"" ~,:. .~~ . .;; '" i.,DistrictJustice . i~":~ :.~ ~..;. . t ~,.. "".. ~... ".. . . "," _ . ~ .' 't 2006 ',.,. ' SEAL ,,' ~,.*' .. ~ . ~ ~.. '#~ ~t~ ""t.,:~""-.""i'~f'47.tr~'~' ' - -' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 01-2321 Civil Term v. ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa,R.C.PJ.P. No. 1006, please strike the appeal fIled by plaintiff in the above-captioned matter for failure to file a Complaint within twenty days of filing the Notice of Appeal from District Justice Judgment. Respectfully sUbmitte~:"'1 ~7 pC-II""- Joel C. Hopkins, Esquire Pa, ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7m Floor Harrisburg, PA 17101 Attorney for Defendant DATED: May 15, 2001 PRO PROTHY: Appeal stricken pursuant to c~;~ TRUE COPV FROM RECORD " ,. est\mony Wll8reof, I here unto satl~LamYPahallc I ol ,.04 Court at Can...... . .,'i\! the ~ saN ~ ( Thj~ I~ J...~y J~ >~ . :" . ProthonotarY 82002.1511S/0l , '''~l'H " . ~~~,-- <c. lV, '~.e, ~,'" ~ r,. 'l""' l CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on thisZSth day of May, 2001, I served a true and correct copy ofthe foregoing Brief in support of Defendant' s Response to Plaintiffs Motion to Reinstate Appeal, via First Class Mail, postage prepaid, upon the following: Steven C. Courtney, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 q PC~ Joel C. Hopkins 82254.15'/25/01 ,,,-~,,,,,,-,-..,,-" -' --"~-"'-'''''''''''<-''--"",-_:-1'.7':'-'''-'''''' -''''''' . - ~",.., -,'_:~I'-~-I~ "'---_".,_~-~t~"~_ '__","_.< .,'" "";,, _~ 'j, ", '"r.', C ,- ,'0-, , --~-.." - . .. 1 STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant PROOF OF SERVICE BY MAIL I, Steven C. Courtney, Esquire, do hereby certify that on April 23, 2001, a copy of the Notice of Appeal filed in the above referenced matter was served upon the following person by certified mail, as is evidenced by the Certified Mail Return Receipt attached hereto as Exhibit "A." All Tune and Lube 3 East Shady Lane Enola, P A 17025 Respectfully submitted, METZGER, WIC Document #: 204237.1 !-if1i\'~',~~"""1'~""""~'_' ~'" ~ , ,^ r. r~ " " , . Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. , . Print your name and address on the reverse so that we can return the carel to you. , . Attach this card to the back of the mailplece, , or on t e front if space permits. 1., . e Addressed to: All Tune and Lube 3 East Shady Lane Enola, PA 17025 dellvely add.... d' Item 1? If YES. enter delivery address below: .-1>- ~. Agent DAd DYes ONo 3. ServIce Type lCI: Certified Mail 0 Exp.... Mail [J Registered I 19tRetum Receipt for Merchandise o Insunod Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) D Yes , 2. Article Number (Copy from service label) , 7099 3400 0016 0533 3135 ! PS Form 3811, Juli 1999 Domestic Return Receipt ';--, ,~,_~_ ," .""<- ,~." - --', l . ,-'<- "I" - " -~', H '.- <, ,~ 10259S.oo-M-G9S2 --."-~'C~"",,,~., I i' /' f . I I I: I I I' I , I I I~ I' Ii II I I I: I II II i: MIIr .~~" ~. "1~~" ,~~ [l ""'" :'l:i~"'" lT1/f,}? ;k;;L 0;', ;:5 i";'~ $" ?O ~O )>c- -,;; <<... =< w -.. -~ '" f o - n -', ho "V ;0" 1'" ~ :..-, ,-:dt:;J ') i :'::J:;:; D~(;:Y droq -I ;ro> ::0 -< ..." ::::: I\) " """'~" ~,,~~~~~t'~:f"f~Sri'<-"': ,.~;o;.""i'",'n:Yk,;"'~::;;i('_' -"~'~'7,","''',V'mj''';~:;H,~i@;',Pi'''K~1;;';o,,;''e''.?;''''''''1f'"'f'~"",,,,,~'l')\'ji1If1'~"'''lJ~ . " STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant PROOF OF SERVICE BY MAIL I, Steven C. Courtney, Esquire, do hereby certify that on April 23, 2001, a copy of the Notice of Appeal filed in the above referenced matter was served upon the following person by certified mail, as is evidenced by the Certified Mail Return Receipt attached hereto as Exhibit "A." District Justice Robert Manlove 1901 State Street Camp Hill, PA 17011 Respectfully submitted, By: , KNAUSS & ERE, P.C. Steven C. Courtney, Esquire 3211 N. Front Street Box 5300 Harrisburg, PA 17110 (717) 238-8187 LD. # 74669 Attorney for Plaintiff Documenf #: 204425.1 ,ri'f~fil\'~rr" .8.;1 , ,., , " . .., :':'-7':'?4~~:?=':'---.:~-'~~~'^:~'''7~~~:<;';'~'~:~-'''?v;.~~~~~-).:~~~7:~:~:::-~.::i-~~~~;?/; r::;;~~~:;_:~~ ;::.:;;;~;:~, ~~:-:. ::~",:,::~.~~~'::'~.. ... :t?k1iJj~ill "--"'.--';--" ~- ,~--.- '-- II Complete Items 1. 2. and 3. Also complete Item 4 ff RestrtcIed oi!Iivery Is deslred. . Print your name and address on the reverse 80 that we can return the cartI to you. 1 . Attach this cartI to the back of the mellplece, . '1 Of on the ftofIt II space permits. j 1. Article Addressed to: " i D. Is dellvely odd.... different from Item 1? it YES, enter deUvery address below: _. -. '~:5;"::;~~;';"~~;~~~' District Justice Robert 1901 State Street Camp Hill, PA 17011 Manlov , , t \ 3. Service type 't!'Certified Mall 0 Express Mall o Reg_ ~rn Receipt lor Merchandise [J Insunod Mall 0 C.O.D. 4. _ DeIIvely? (Extra Fee) DYes I i , . I ".'_.' .. .,,_,_~.~..->-:-.;-_._.,.i.,;:~..~ 2. MicIe NumberP>f>yfromservicelsbel) ,L',:=;~C:!::'~=it:-:ll'''''' "\ 7099 34000016 0533 3142 Domestic Return Receipt 1025g5.00.M.()952 .:--------"--~-~., ---------~~ ". ~ T UNITED STATES POSTAL SERVICE I !. First.Class Mall Postage & Fees Paid USPS Permil No. G., 0 . Sender: Please print your name, address, and ZIP+4 in this box. , ~ ,~ - I . ! I 1-. , , , , t I I I , ! I , li,'i;i~~~S~;": ,".~----, ' - ;t:;~r/4 -... --r'-'-'" ~~'":"-:_:~'-;;: '.:?':tt2:: ~ i k. Metzger, Wickersham, Knauss & Erb, P.C. POBox 5300 Harrisburg, PA 17110-0300 SCC '. ,-.:;._~ -. - :;,:;;~-.:~;~;'k~:' -...~. ~;;-, ,~"WIt'_ _ n_rl ~~ - ~"f I. .. ", I UIl - - ~"~~~. .~" , "0 -, --~ ;~~ ~- ' ,,' ~ p,",~ " ..~. -- ."" - ,.' ~, _,_-" .~. 1'" ~ "~",--",."""""",~-~''''''''-''_<' ,~~_'c.""..~.~" _. (") 0 C) C ....n S. 1"" -OeD -0 rnm ?:J c= :;;:::C' W ""lfT1 -7C ;~~~i~ VJ '-~> 0 =<~~', ~CJ -0 " ',;~ '7.~1 :S;,Q ~ .~C) ~-,--"rn ""'0 "', ~ >c: .' ~ N 55 -< ,'-' Co< ,.~~~"",WW'\"H_-o'!''.Tf1;zJ'F'-'''''-- ;:~'_"Ji""'-:-~'<;~""'f\""""I\'""R;;:pJ~%;!fE~'Wm!"'!!,~Ill'~~~'R-l~*,,r~W"'!lj~:'ffl$m!~mr , . . .'1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 0'-2321 Civil Term v. ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J.P. No. 1006, please strike the appeal fIled by plaintiff in the above-captioned matter for failure to file a Complaint within twenty days of filing the Notice of Appeal from District Justice Judgment. Re. spectfully sUbmitte~:'1 -=c:7 pC-tt'- Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7th Floor Harrisburg, PA 17101 Attorney for Defendant DATED: May IS, 2001 PRO PROTHY: Appeal stricken pursuant to (i~ 82002.15115/01 I...'.. . ".,',- , '-W_'-o~"__r'<,,,~_'""'f__"'_, ",'--',',~- ~ ---'~-'''''''''','l"'-I "--,,,--,.,q,-,~.--, -. ,~, ,~ " ~, . '> . CERTIFICATE OF SERVICE I, Aimee J. Albright, hereby certify that on this 15th day of May, 2001, I served a true and correct copy of the foregoing Praecipe to Strike Appeal via First Class Mail, postage prepaid, upon the following: Steven C. Courtney 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 ~./~;// Aimee J. Al ght Secretary to Joel C. Hopkins, Esquire 82002.15/15/01 ~~-""'""'. - "," '-',"/ ,-, e, 'a - , 0 ~ ,_~ "".', _ ,r., " ,__~ : ., 1"_1'''".: ":"__<:___;,,:,;'t-~ -'-: <_:''" ,_, ,', ~ . .'. ,^,_, 'n .~~ ",' .'''' .". ,. . . I ~ ~" , ~ " ~" f." 'l"'. _.F ,'.' ef~" ~_~n""N"""f ',,- "" , . c '~ . C) ... " ~.::- :o:~.. -cJ ',," fTl 1-'-- , ~ u:~ (; , ,':: ~ -. ,- ~.... /;:,- 'j:.:; ~; '-".f "-....., ..,::.:... 2: -.... .~ -< { l' ~< . 'I'~~ftl- ".' ^._ "''''!''''::-'''';''''''_-_''''_,'~'', _~'."_' - _<_~ . ' +~G. ATTORNEYS AT LAW JOEL C. HOPKINS Phone: 717-257-7525 Fax: 717-257-7590 jhopkins@sau1.com www.saul.com May 15,2001 Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, P A 17013 RE: Steven C. Courtney v. All Tune and Lube Case No. Ol-2321-CV Dear Mr. Long: Enclosed please find Defendant All Tune and Lube's Praecipe to Strike Appeal pursuant to Pa.R.C.PJ.P. No. 1006. Please file the original and return a time-stamped copy to our office in the enclosed envelope. Thank you for your anticipated cooperation. By copy of this letter all parties of record have been served with the attached filing. Thank you for your anticipated cooperation. Sincerely, 4 <---7 at:; ~ l Joel C. Hopkins JCH/aja Enclosure cc: Steven C. Courtney 2 North Second Street, 7th Floor. Harrisburg, PA 17101-1604 . Phone: (717) 257-7500. Fax: (717) 238-4622 82003,15115/01 BALTIMORE CHESTERBROOK HARRISBURG NEW YORK PHILADELPHIA PRINCETON WILMINGTON A DELAWARE LIMITED LIABILITY PARTNERSlliP .'-;, ~,""," - --,,,'c'<:,,; ,,_;,___ ,_,-.,,"-""'<-'_~' ''''~_'''-,I<tCI'~.'~'!""_":,,,,.,,_'''_:_"1;''."("~ -~ .,'-' I -" -', ,~,,"- 0_,' - - STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant CIVIL ACTION-LAW PRAECIPE TO THE PROTHONOTARY: Please amend Plaintiffs Motion to Reinstate Plaintiffs Appeal to include the attached Exhibit "A". Respectfully Submitted, D'~~/ft(q Ste C Attorney No. 3211 North Fron treet P.O. Box 5300 Harrisburg, P A 17110-0300 (717) 238-8187 Attomey for Plaintiff Document #: 196208.1 -t,.:_ ,,^, _ ",_<",L ,_ ,. '~!",~_,~,_ . " ~, '~?, '-, , - . ~= STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant CIVIL ACTION-LAW NOTICE TO DEFEND TO: All Tune and Lube 3 East Shady Lane Enola, P A 17025 NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice is served, by entering a written appearance, personally or by attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint, or document, or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. NOTICIA Le han demandado a used en la corte. Si used qui ere defenderse de estas demandas expuestas en las paginas siguientes, used tiene viente (20) dias de plazo al partir de la fecha de lademanda y la notificacion. Used debe presentar una apariencia escrita 0 en persona 0 por abogado y archivar en la corte en forma escrita sus defensas 0 sus objeciones a las demandas en contra de su persona. Sea avisado que si used no se defienda, la corte tomara medidas y puede entrar una orden contra used sin previo aviso 0 notificacion y por cualquier queja 0 alivio que es pedido en la peticion de demanda. Used puede perder dinero 0 sus propiedades 0 otros derechos importantes para used. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO 0 SI NO TIENE EL DINERO SUFICIENTE DE P AGAR TAL SERVICIO, VA Y A EN PERSONA 0 LLAME POR TELEFONO A LA OFICINA CUY A DIRECCION SE ENCUENTRA ESCRlTA ABAJO PARA AVERlGUAR DONDE SE PUEDE CONSEGUlR ASSISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle,PA 17013 (717) 249-3166 l)ocument#:134944 ~C'~~ll1M,~"~.~ ,_~ ~ - 11-1 "~ ..--""~~~~, STEVEN C. COURTNEY, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v Case NO. 2001-02321 Civil Term ALL TUNE AND LUBE, Defendant CML ACTION-LAW CIVIL COMPLAINT AND NOW, comes the Plaintiff, Steven C. Courtney, and files the following Civil Complaint against Defendant, All Tune and Lube, and in support thereof avers the following: 1. Plaintiff, Steven C. Courtney, is an adult individual residing at 4177 Nantucket Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant, All Tune and Lube, is averred to be a business entity with a principal place of business located at 3 East Shady Lane, Enola, Cumberland County, Pennsylvania 17025. 3. Plaintiff is, and at all relevant times was, the owner of a 1996 Honda Accord (hereinafter referred to as "Vehicle"). 4. Defendant is, and at all relevant times was, a garage specializing in automotive repairs and maintenance. 5. At all times relevant hereto, Defendant acted or failed to act by and through its duly authorized agents, servants, workmen, and/or employees, acting in the course and scope of their authority, employment and/or agency on behalf of said Defendant. 6. All of the acts alleged to have been done or not to have been done by the Defendant, were done or not done by said Defendant, their agents, servants, workman, and/or employees, acting within the course and scope of their authority, employment and/or agency on behalf of said Defendant. DOCllment #: 206562.1 c7f'~__>~, " . "-for' ......-.._...,"-~~ """"~ " C' ~,_,.~, ~~~ " ~_, 7. On or about September 25, 2000, the parties entered into an agreement whereby Defendant agreed to perform work on Plaintiff's Vehicle in the nature of, inter alil!, checking for the source of an oil leak, checking of gaskets and seals and other possible sources of oil loss. 8. In exchange for the work to be performed by Defendant, Plaintiff agreed to pay for the reasonable and necessary services provided by Defendant. 9. The aforesaid agreement was reached between the parties following inspection of the Vehicle by Defendant. 10. Shortly thereafter, Defendant began to perform the work on Plaintiff's Vehicle. 11. On or about September 30, 2000, Defendant notified Plaintiff that the repairs to the Vehicle were completed, and the Vehicle was ready to be picked up. 12. At the time that Plaintiff picked up his Vehicle, Defendant stated to Plaintiff that the vehicle had other problems in the nature of vibrations when the Vehicle was running, the constant presence of the oil and check engine warning lights and the Vehicle may stall, which had not been present when the Vehicle was given to Defendant for the repairs. 13. Defendant stated to Plaintiff that the Vehicle vibrated, could be driven despite the constant presence of the check engine and oil warning lights and that the Vehicle may stall when quickly pulling in front of approaching cars. 14. The work performed by Defendant was very poor, not performed in a good and workmanlike manner, done in a negligent, careless and reckless manner which was the direct and proximate cause of damage to Plaintiff's Vehicle hereinafter stated. Document #: 206562./ '~lV._. , ~~.""'- " - ' 1.1 ~ - =,"~~a,.,.....,w__=" 15. More specifically, Defendant failed to properly install or misaligned the time belt whereby causing the values to get bent, improperly setting the balance shaft belt tension, leaving a hose clamp in the engine, and failing to replace bolts and covers. COUNT I Breach of Contract 16. Paragraphs 1 through 15 hereof are incorporated herein by reference as if fully set forth. 17. Defendant agreed to perform the required work and repairs under the terms of the aforesaid agreement in a professional workmanlike manner. 18. Defendant's failure to perform the required work and repairs in a proper and professional workmanlike manner constitutes a breach ofthe agreement. 19. As a direct and proximate result of the breach of the agreement by Defendant, Plaintiff has sustained damages as follows: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of$1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A true and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (d) Market value loss of the Vehicle. Document #: 206562.1 ,"O(!#-~q;;;-4'1'_\"'j,=""" +_ ~"'. . ,~~~ I-I ,,- ""'_0, +>~.~^~"""""~. WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, danlages for delay and/or attorney fees as allowed by law. COUNT II Unfair Trade Practices and Consumer Protection Law 20. Paragraphs 1 through 19 hereof are incorporated herein by reference as if fully set forth. 21. The transactions between Plaintiff and Defendant as described above constitutes one under and subject to the provisions of the Unfair Trade Practices and Consumer Protection Law, 73 P.S.g201-1 et. seq. 22. The services contracted for by Plaintiff with Defendant were for the repair to his vehicle, and Plaintiff has suffered ascertainable loss as a result of the Defendant's use of methods, acts, or practices declared unlawful under said Statute including: a) Engaged in unfair or deceptive acts or practices in the conduct of its business; b) Represented that the goods, services and benefits contracted for by Plaintiff would be provided by Defendant; c) Engaged in fraudulent conduct which created confusion and misunderstanding concerning Defendant's obligation to repair the Vehicle; d) Made false or misleading statements of fact concerning the repair of the Vehicle; e) Failing to complete the repairs and/or improvements to the Vehicle; f) Making repairs to the Vehicle which were clearly poor and inferior and which require significant repairs and/or measures to complete and correct the work; and Document N: 206562./ '''t~_. ,.",,~, -', -1',1-- _. ,-" ,-=- ,~ ",""""'~ g) Misrepresenting to Plaintiff that the work would be properly and competently completed and timely performed. 23. Defendant's conduct is in violation of the Unfair Trade Practices and Consumer Protection Law and is willful for which Plaintiff seek damages as set forth above together with treble damages and such additional relief as provided by said statute or as the Court deems necessary or proper. 24. As a result of the Defendant's violations of the Unfair Trade Practices and Consumer Protection Law, Plaintiff sustained the following damages: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of$1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A true and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (d) Market value loss of the Vehicle. 25. In addition, Plaintiff is entitled to treble damages for the actual damages sustained, costs and reasonable attorney fees in accordance with the Unfair Trade Practices and Consumer Protection Law. WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, damages for delay and/or attorney fees as allowed by law. Document #: 106562.1 --"":"1"nm~"""-,,!;r:>."\ ,~- ~ -"~~"-~ r I' ,~ - ~, ~" " "~~-~- -""~"'''''''''''''"._-'''''"''''''' forth. COUNT III NCl!Iil!cncc 26. Paragraphs 1 through 25 hereof are incorporated herein by reference as if fully set 27. Defendant owed a duty to Plaintiff to perform the work in a good and workmanlike manner and not to cause damage to Plaintiffs Vehicle. 28. Defendant breached the duty owed to Plaintiff by failing to perform the work in a good and workmanlike manner and causing damage to Plaintiff's Vehicle. More specifically, Defendant failed to properly install or misaligned the time belt whereby causing the values to get bent, improperly setting the balance shaft belt tension, leaving a hose clamp in the engine, and failing to replace bolts and covers. 29. As a result of Defendant's negligence, carelessness and recklessness, Plaintiff has sustained as a direct and proximate result the following damages: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of$1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A true and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (d) Market value loss of the Vehicle. Document #: 206562.J '''tl':i'''F''_f''''''. .., "~ I Ff~' ,'" "l . " -~ ~ ~' WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, damages for delay and/or attomey fees as allowed by law. COUNT IV Misrenresentation and/or Fraud 30. Paragraphs 1 through 29 hereof are incorporated herein by reference as if fully set forth. 31. Defendant represented to Plaintiff the following: a) That the repairs would be completed by the following work day; b) That the work performed to the Vehicle by Defendant would be completed in a good workmanlike manner; c) That the Vehicle could be properly operated despite the constant presence of the check engine warning light; d) That the Vehicle could be properly operated despite the constant presence of the oil warning light; e) That the Vehicle could be properly operated despite the constant vibrations; and f) That the vehicle could be properly operated despite the possibility of stalling while pulling out into oncoming traffic. 32. Plaintiff relied on the aforesaid representations of Defendant. 33. The Defendant knowingly and/or within intent to defraud failed to complete the repairs to Plaintiff s Vehicle. Document #: 206562. J "~"'~'i!""""'''''""'~''~_ - , r~~' _, "II " ,~- ~~~". - ,.. -~".=~~ -""""'I' ,,_~ '.b, ~ ,~- ~ .-< 34. As a direct and proximate result of the misrepresentation and/or fraud of Defendant, Plaintiff sustained the following damages: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of$1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A true and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (d) Market value loss of the Vehicle. 35. Plaintiff is also entitled to punitive damages because Defendant's actions were intentional with the intent to defraud Plaintiff. WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, damages for delay and/or attorney fees as allowed by law. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. l\ By: Steven C. Co Attorney J.D. 4 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiff Document #: 206562./ ~~!1!1 H ~ , -~-' I' I ~""""""'"' 'r' -""0-> ,,,- ,,~. "~ ,-, VERIFICATION I, Steven C. Courtney, do hereby certify that the statements made in the foregoing Complaint are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. 94904 relating to unsworn falsification to authorities omro# Document #: 134944 ,';';if"I'1l'~""o/"''''''~ ~~ ~ ~~If"1 ,~~, -"~"".,~~ '-,-- ~~ ~~~-~~'---~_---k--~ f\ ~ [ > ~~(}\ ~ ~~, ~ t s i\> ~ I? ~ '1 Vi hi i:;:. 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'" 0 ~~ ~ ~ ~ ~ '^ ~ Q\ ~.. ~-Jm 0 B I film ! ~i ~ I il ~ ;~:\I~ ~ ~.~ ~ i ,IIV ._~ II z ~ c; m @tJ IiiiiJ ::mJ ~ = If>> IiiiiJ ~ ::@ (QJ IiiiiJ ::mJ -~"'-"""1r~"~""''''i""",,,,,,,,,~~~!II:'Il'I~"'~_'''" P"'I,~! "~ , ~~~~,""" 'I~ F""_"'"~,, """"1\~,,>T,~ ~~lEnierprlsel .~L _. '1 800 I'en....a-car ~ .~-:;~,':-~?';:;>!Y0':.::~;i'.~.:.':~~'~~~~~~&I~1~~{t;;~~~ OTHER PHONE llAlR HOU-RS'. /I>.'c..:" .!ill~ b i3 -'i~l~~- -: S-~______ 'ii': ! 6:3 IJICt> ~t:WJ ~9;,_i~L7~__ l-".s~ RtEL CHARGE , ; __(P,.'!: ~</ 1-.,1.... I I .,1. ____.______'--_:r) J2[ " PL # TYPE "DAlE PD. F U . ~ IN I AM REJECTING UNINSURED MOTORIST COVERAGE, ' UNDER THIS RENTAL OR LEASE AGREE- MENT AND ANY" POUC)' OF INSURANCE OR SELF~NSURANCE ISSUED UNDER THIS AGREEMENT. FOR MYSELF, AND - ALJ.OTHER f'ASSENGERS OF THIS VEHICI.E. UNINSURED 'COVERAGE PRO" TECTS ME AND OTHER PAS- SENGERS IN THIS VEHICLE FOR LOSSES AND DAMAGES SUFFERED IF INJURY IS CAUSED BY THE NEGUGENCE OF A PERSON WHO DOES NOT HAVE ANY INSURANCE TO PAY FOR LOSSES AND DAMAGES. . EXT>' 'io' EXT. TO EXr. TO EXT. ' TO ~ITIONAl ,NFORMATlON: )~OUNT ,< INSD. , LOSS DATE HONE T1tEfT_ACClllEMT_ NAME EPAtR SHOP ;.(,. , t PE CAR INVOICE @Enterprise Rent-A-Car Company. 1999 " I..;,.::~ :i:':'~';"'j~ll, "l)U'~ i{'I.: ~ '::.-'~; ':,'/.. ::~::. ;-"f~"""""~"""e""';'''''''1''1!"~''''fIP''''''-~~~'''''-''''~'''''"_I~T "~~~_ ,'" ,~ ,...,- >-~""'~~~ - ,. ~ ,~,~" .'"-.r 1'""""" ,~, ~ -" . ,~ "" 'R~. ,,~. ~- .,.- "",~~,,-,. " -"'~~' ~~---'''~=~. IIUlI o (-) (~' ,--) , "n : - , -"-- , '"' -, ~:) -,") , Tl t'S ~- j'--..) <.:51'n p L. '"4 ",- " )> ----1 -'0 -<. CO .-=< ~J~ "~r~.:uR!tfJ!t.~m:4n;;.'1;W'~%.,,ti;;ri:;ml"",f~~~~~~~~~I1!!FJi'!jw,~lIWffllliim~~i~~ STEVEN C. COURTNEY, Plaintiff vs. ALL TUNE AND LUBE, Defendant ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND. COUNTY, PENNSYLVANIA 01-2321 CIVIL CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE PLAiNTIFF'S APPEAL AND NOW, this ORDER /"''' f .I day 0 August, 2001, following hearing on the pending matter, the motion of the plaintiff to reinstate appeal is DENIED. Steven C. Courtney, Esquire Plaintiff Joel C. Hopkins, Esquire For the Defendant :rIm "-J:;i~_,_ ~....~ ~ ~ ,~ ", -~. ",-' '~I"'r '\" BY THE COURT, ~~ 8- 1'1-01 9- .--"; - " " :~- ':3 ~--- - ^~ -<,~ ,.~ ~-- .'<'-" tl::"i ': ,~, , x"'rrt,R: \/ ,~- if" I OJ ,qilr I ' rnjL7 I L} I!UIO !J ~.. . fOil . h2 CUM~X:HU"',LJ COUNTY PtNNSYlVANIA ~!!lJJJ_l!iI"".,.;;l.14 ~"'1~'!I'",!;lJ<l , -~ . '. '4"~' -, ., ,",,;-t.,'_".,' "._ .__~ '~"'" '.",.,' -",",'.'_, '=~""=-~I<,_.M ~"111 .III] ~ ~j,!J1)1~~!i~"M-;-i!lt_"!!";l""'--!""o:-\",_r"fi"_W"'}",'<?')imt?*{"lfi,~%~!~'~~W~I"!<1~I~Wif0~~~~