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HomeMy WebLinkAbout07-4502 b7 -45oa C.v. t T~rw- Commonwealth of Pennsylvania Ctiimberland County Court of Common Pleas Judicial District NOTICE OF APPEAL C o FROM ~ "~' v ~_,, L DISTRICT JUSTICE JUDGMENT ~ ^t~ rc-,__ ~ Common Pleas No. ~~ ~- NOTICE OF APPEAL ~ i;~-~ ~ Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgmenndeure~d b e District Justice on the Date and in the case mentionedbelow. Name of Appellant Mag. Dist. No. or Name of D.J. • ~7eT1 - - Address of Appellant City State Zip Code killer Road ShiPPe~ ~'9 Date of Judgment In The Case of (PlaintlfQ (Defendant) Teamsters Local Union No. 77 vs. 1 Claim No. cv0000159-06 Sign ure of Ilant or His from or Agent Ta 19 ` LT 19 ' This block will be signed ONLY when this notation is required under Pa. R.C.P.. ~ . No. 10 This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDERS to the Judgment for possession in this case. Kappellant was Claimant {see Pa. R.C.P.J.P. No. 1001(6) in action before Dfst3lctJusSce, he MUST R COMP ith FI AI T t 20 d f Signature of Prothonotary or Deputy LE L N in twen y ( ) ays a w ter filing his NOTICE OF APPEAL PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of the form to be used ONLY when appellant was DEFENDANT (see Pa. R.C.P.J.P. No. 1001(7) in the action before District Justice. !F NOT USED, detach from copy of nofice of appeal to be seared upon appellee). PRAECIPE: To Prothonotary Enter rule upon Teamsters Local Union No. 77 appellees) to file a complaint in this appeal Name of lee s (Common Pleas No. ) within twenty (20) days after rvice of rule or suffer entry of judgment of non pros. Signat of Ap or His Attorney or Agent RULE: To Teamsters Local Union No. 77 a ellee s Name of A alias s (1) (2) (3) You are notified that a rule is hereby entered upon you to file a complain 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. If you do not file a complaint within this time, a JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU. The date of service of this rule if service was by mall is the date of mailing. Date: , 20 Sin of P thonota or De Court File /Court Proof of Service / Ilant's Co / A Ilea's Co /District Justice OUNTY O~F.:.:.cum.~a~~....°" ~ ~MMONWEALTH OF PENNSY~ 'NIA Map.-Dist. No.;, . 09-2-.d1 MDJ Name: Hon. .PAULA P. CORSSAL Address: 22.60 3P$IIiIG R,D SUITF #3 CARLISLS, PA Telephone: (717}" 218-5250. 17013-0000 ATT08b1S3C D$F PRIYAT$ e N0~1CE OF `J-DGMENT/TRANSC~I~T t,~-U(L CASE . PLAINTIFF: NAME and ADDRESS rT.SAMSTSHS LOCAL UNIOIff#77 V~TI~TCP AS~ ~SCUTIV'S PLAZA FT ~PASHII~GTOIQ; 19 0 3 4 L J VS. DEFENDANT: NAME and ADDRESS rLIYS~1G00n, ~NDBLL ~ 116 HOR.S~ILL$R 8D SHIPPffi![SSURG, PA 17257 L. J qP J. YOtJ~'tG D1RT7t~ LBGAL DHFg Docket No.: CV-0000159-06 8001 SRADDOCiC BD. ST8 600. Date Filed: 10/06/06 $PH.I~TGFIHLDr YA 2216'0 THIS IS TO NOTIFY YOU THAT: Judgment: F08' PLAIi~TIFF Date of Jud ment 12/18/06 Judgment was entered for: (Name). TZ~BTEHS LOCAL UbTIOM#?7 UJeTIIQC .~ • ~ ,. Jui~grrrerlt Was~en#ared against:, (Name) LI'P8I~t300D, ~11rLL ~: ~ .. 91:0.9 in the arnour~t'of $ Amount of Judgment •$_ 88':40 Defendants are lolntly. and severally llatrie, Judgment Costs $_~'0 Interest on Judgment $ ~~ . ~ Damages wilt be.assesse~d Orr Date & Time Attorney Fees $ • 00 This case dismissed without prejudice:9.10.90 Arrrount of Judgment SLibJect to Attachment/42 Pa.C.S. § 8127 post Judgment' Credits $ . $. Post Judgment Costs $ :~ Portion of Jutlgmentfor.physical damages arising out of •. ~ N residen#ial lease ~. •. Certified Judgment Total $ :.. .. .. ANY.PARTY HAS THE RIC,HT TO APPEAL WRNIN 30 DAYS' AFTER THE ENTRY OF JUDGMENT BY FILING`A NOTICE• OF APPEAL WITH THE PR~THGlNOTARY/CLEf3K OF 7HE COURT OF COMMON PLEAS, CIVIL DIVISION; YOU MUST RJCCUDE'A CQPY'OF TNlS NOTICE OF,JUDGMENT/TRANSCRIPT FARM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN TI9E RULES.OF CNILPROC'EDURE FflEi••MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOt~DER ELEC'T$ TO~Ei~iTER THE JUDGMENT IN'THE.COURT OF COINMON PLEAS, ALL FURTHER PROCESS MUST C~1VIE.FR,DM TNI~ COUR3 OF COMMON~P,LEI4S AND NO'F4JRT.F[1nEl'PAD~E~S •IkfIAY„~E-.tSS~1E~;BY.'LH£.1ilIAGiI.S~ERIAL..W.SIRICT.JJIDG~ ..: , :..:CINL:ESS THE J.UDGMEi~1T IS'~NTEfiE{5`.iN. T'F~E.COURSOF COMMON PLEAS, ANYONE.INTERESTED IN THE JUDGMENT MANY FILE A REQUEST FQR ENTRY OF S~ATtSFA"CT1ON WI'rhLTHE MAGtSTERIA.L DISTRICT JUD{sE IF THE JUDGMENT DEBTOR PAYS IN~FULL, • SETTLfS~iOR ~rt'HEftWISE COMPLIES WITH THE•JUDGMENT. ~ :. My cornmissiori expires first Monday of January, 2012 AORC 31.5=06 ' DAT$ ,PS.IleTBD': 12'/ 2 0,/ 0 6 1:07:0 0 P>bl< ay :: SEAL ~'~ r.;:. :~. T. ~` :i `': r' i. a C'~ ~ ~ ~ ~ # J ocf ~ ~~ ~' ~ - r4 ~~ ~~ a h va ~i na .,.. t_._ r`- Cam? M1^~ `tV ~i ~~ ~~ .~~~ -~i ~^'~~^'~ CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing [Proposed] Order Granting Defendant's Petition for Leave to Appeal Nunc Pro Tunc was deposited in the United States Mail, first class postage prepaid, addressed to: Kenneth S. Hall, Esq. 212 Cherry Street Norristown, Pennsylvania 19401 this day of July, 2007. LAVERNE K. STANLEY Page -2- IN COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA TEAMSTERS LOCAL UNION NO. 77, I DOCKET No. CV-0000159-06 Plaintiff, PETITION FOR LEAVE TO APPEAL v. NUNC PRO TUNC WENDELL LIVENGOOD, Defendant. PETITION FOR LEAVE TO APPEAL NUNC PRO TUNC COME NOW Defendant, Wendell Livengood, by and through his attorney, and hereby submits his Petition for Leave to Appeal Nunc Pro Tunc from the judgment entered by District Justice Paula P. Correal in the above-styled action, as follows: 1. Hearing in the above-referenced matter was conducted on 18 December 2006, before the Honorable Paula P. Corneal, District Justice in District Court 09-2-01, in Cumberland County. Judgment for Plaintiff in the amount of $910.90 was entered on 18 December 2006, and Defendant was duly notified of the adverse judgment against him. 2. On Friday, 12 January 2007, Defendant's counsel prepared and signed, and his assistant duly mailed, First-Class mail, postage pre-paid, a Notice of Appeal, including the prescribed fee, to the Prothonotary's Office. See Declaration of Laverne K. Stanley (attached hereto), ¶ 3. Said Notice of Appeal was sent regular mail. 3. Defendant's case is one among dozens of similar cases throughout the Page -1- Commonwealth in which Defendant's undersigned counsel is representing similarly-situated individuals defending against similar claims brought against them by Plaintiff herein, or by another Teamsters local. Similar cases are pending in not fewer than six different counties of the Commonwealth (Dauphin; Bedford; Somerset; Allegheny; York; and Cumberland counties). Proceedings in said cases, particularly those in Somerset County and Bedford County, have moved slowly: a. In Teamsters Local Union No. 77 v. John Varga, Docket No. 5 CIVIL 2007, pending in Somerset County, Defendant's Notice of Appeal from an adverse District Justice decision was filed on 13 January 2007, with a Complaint filed by Plaintiff on 18 January 2007. Defendant thereafter filed his Preliminary Objections and/or Demurrer to Plaintiff s Complaint which have not, to date, been ruled upon; and b. In Teamsters Local Union No. 77 v. Michael Robinson, No. 1422 for the year 2006, and others,' pending in Bedford County, Defendants' Notices of Appeal from adverse District Justice decisions were filed on 30 November 2006, with Complaints filed by Plaintiff on 16 December 2006. Defendants thereafter filed their Preliminary Objections and/or Demurrer to Plaintiff s Complaint. Argument was not heard on those pleadings until 4 June 2007, and short orders were not entered on them unti124 July 2007. Declaration of W. James Young (attached hereto), ¶ 6. 4. Upon review of the various files in this action, and in planning to conduct ' Teamsters Local Union No. 77 v. Jeffrey Rupert, No. 1423 for the year 2006; Teamsters Local Union No. 77 v. William E. Clark, No. 1425 for the year 2006; and Teamsters Local Union No. 77 v. Michael D. Gibbons, No. 1426 for the year 2006. Page -2- discovery, Defendant's counsel learned that his office had never received from the Prothonotary a date-stamped copy of the Notice of Appeal for service. See Declaration of W. James Young, ¶ 7. Upon further inquiry by his legal assistant, it was discovered that the Notice of Appeal had not been received by the Prothonotary's office, and that the check for the appeal fee had not been negotiated. Stanley Decl., ¶ 4. Upon discovery of these facts, Defendant's undersigned counsel promptly prepared this Motion, and respectfully submits it contemporaneously with another copy of Defendant's Notice of Appeal and the required fee, this time transmitted via FedEx. 6. As the Superior Court observed in Nagy v. Best Home Services, Inc., 829 A.2d 1166, 1167, 2003 Pa.Super. 271 (2003): "Allowance of an appeal Hunt pro tune lies at the sound discretion of the Trial Judge." McKeown v. Bailey, 731 A.2d 628, 630 (Pa.SuPEU.1999) (citations omitted). In the usual case, where a party requests permission to file an appeal Hunt pro tune, it is because counsel for the appealing party has not timely filed an appeal. That party must therefore show more than mere hardship. Rather, a trial court may grant such an appeal only if the delay in filing is caused by "extraordinary circumstances involving `fraud or some breakdown in the court's operation through a default of its officers.' " Id., quoting Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 383-384, 671 A.2d 1130, 1131 (1996) (other citation omitted). 829 A.2d at 1167 (original emphasis). Defendant respectfully submits that the facts of this case justify the granting of his Motion. 7. Here, as in Nagy, Defendant timely submitted his Notice of Appeal, re-submitted herewith. He attempted to transmit that Notice of Appeal to the Court via United States Mail, deposited with more than enough time to be transmitted in the normal course of business from his counsel's office in Northern Virginia to the Prothonotary's office in Carlisle, Pennsylvania. It Page -3- was apparently only through the vicissitudes of the United States Mail that the Notice of Appeal was not timely delivered or, in fact, delivered at all. However, as distinct from Nagy, the failure to file timely was not owing to "a breakdown in the court's operations," 829 A.2d at 168, but rather, a breakdown in the normal processes of the United States Postal Service. Defendant respectfully submits that his counsel acted reasonably in mailing a Notice of Appeal five (5) days prior to expiration of the appeal period to an office fewer than 100 miles distant, and that his right to appeal should not be denied by virtue of the failure or error of the United States Postal Service. 9. Plaintiff will suffer no prejudice by virtue of the granting of Defendant's instant Petition. Plaintiff is pursuing similar cases, in similar postures, in not fewer that four other counties (Dauphin; Somerset; Bedford; and York counties) in the Commonwealth, against not fewer than two dozen defendants, all represented by the undersigned counsel of Defendant herein. Virtually all of said cases have been defended vigorously before various District Justices, and all save a few have been appealed. Plaintiff therefore had no reasonable expectation that this case would be treated any differently. Moreover, said defendants are raising defenses similar to those anticipated to be raised by Defendant herein. //// //// //// //// //// //// Page -4- WHEREFORE, Defendant Wendell Livengood respectfully requests that his instant Petition be granted, that the Court grant him leave to appeal nunc pro tunc, and that the Prothonotary be directed to file his contemporaneously-submitted Notice of Appeal. DATED: 27 July 2007 Re pec lly su fitted, . J MES ~, EsQ. Pe syly i ar No. 56300 c/o National fight to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, Virginia 22160 TELEPHONE - (703) 321-8$10 FACSIMILE (703) 321-9319 ATTORNEY FOR DEFENDANT H:\WP\Pennsylvania Cases\Silks\Livengood\LeaveAppeal.mot.wpd Friday, 27 July 2007, 13:10:13 pm, E.S.T. Page -5- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Defendant's Petition for Leave to Appeal Nunc Pro Tunc was deposited in the United States Mail, first class postage prepaid, addressed to: Kenneth S. Hall, Esq. 212 Cherry Street Norristown, Pennsylvania 19401 t is day of July, 2007. LAVERNE K. STANLEY Page -6- IN COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA TEAMSTERS LOCAL UNION NO WENDELL LIVENGOOD, DOCKET No. CV-0000159-06 DECLARATION OF LAVERNE K. STANLEY IN SUPPORT OF DEFENDANT'S PETITION FOR LEAVE TO APPEAL NUNC PRO TUNC Laverne K. Stanley, pursuant to Section 1746 of the Judicial Code, 28 U.S.C. § 1746, declares as follows: 1. I have first hand knowledge of all of the facts set forth herein, and if called to testify could do so competently. 2. I am employed as a Legal Assistant by the National Right to Work Legal Defense Foundation, Inc., and have been so employed for more than ten years. I am currently assiged to work with W. James Young. 3. Upon receipt of District Justice Correal's ruling in this case, Mr. Young directed me to prepare for filing an appeal from District Justice Correal's judgment. As part of my regular duties, and per my practice in these cases, I promptly procured a check for the required fee from the Foundation's Accounting Department, and prepared a Notice of Appeal. I presented it to Mr. Young for signing, and he duly executed it, and directed me to transmit it to the Prothonotary's Office via regular mail. On Friday, 12 January 2007, I duly deposited the executed Notice of Appeal, submitted with Defendant's instant Motion, into the United States Page -1- Mail, first-class postage pre-paid, along with a return FedEx envelope for use by the Prothontary in returning adate-stamped copy of the Notice of Appeal and the Rule to File Complaint and Rule to File to me. However, I never received said documents from the Prothonotary's office in this case. 4. I did not become aware that we had not received the date-stamped copy of the Notice of Appeal and the Rule to File Complaint and Rule to File issued by the Prothonotary until it was pointed out to me by Mr. Young on or about 17 July. At that time, I inquired of the Prothonotary's office as to whether it had received the Notice of Appeal and the other documents sent with it, and was told that it had not. Furthermore, I checked with the Foundation's Accounting Department, and learned that the check for the filing fee for the Notice of Appeal was, while duly deposited, lost in the United States Mail, and never received by the Prothonotary. I declare under penalty of perjury that the foregoing is true and correct. 2~ Executed on ~ July 2007. H:\WP\Pennsylvania Cases\Silks\Livengood\[.KS.dec.wpd Friday, 27 July 2007, 13:09:55 PM Page -2- IN COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA TEAMSTERS LOCAL UNION NO. 77, I DOCKET No. CV-0000159-06 Plaintiff, DECLARATION OF W. JAMES v. YOUNG IN SUPPORT OF DEFENDANT'S PETITION FOR LEAVE WENDELL LIVENGOOD, TO APPEAL NUNCPRO TUNC Defendant. W. James Young, pursuant to Section 1746 of the Judicial Code, 28 U.S.C. § 1746, declares as follows: 1. I have first hand knowledge of all of the facts set forth herein, and if called to testify could do so competently. 2. I am attorney for Defendant in the within suit, and appeared as his counsel before District Justice Paula P. Correal. 3. Upon receipt of District Justice Correal's ruling in this case, I consulted with my client to ascertain his intentions regarding his right to appeal. Approximately one week after the New Year holiday, my client directed me to appeal from District Justice Correal's judgment, and I promptly procured a check for the required fee (Mr. Livengood is receiving free legal aid from the National Right to Work Legal Defense Foundation which is, as a part of its legal aid program, paying his costs), reviewed and signed the Notice of Appeal prepared by my legal assistant, Laverne K. Stanley, and transmitted it to the Prothonotary's office by letter dated Friday, 12 January 2007. Because of the intervening weekend, and the five days remaining before Page -1- expiration of the period for appeal, I directed her to transmit it via United States Mail. 4. Additionally, I represent more than two dozen other individuals who are being sued by Plaintiff Teamsters Local Union No. 77 on a virtually identical claim, in various counties throughout the Commonwealth. Many of these cases are pending in the Court of Common Pleas for Dauphin County, but a number are pending in other courts: four are pending in the Court of Common Pleas for Bedford County; one is pending in the Court of Common Pleas for Somerset County; four were heard by a District Justice in York County on Tuesday, 24 July. 5. In the normal course of things in these cases, my assistant receives the date- stamped copy of the Notice of Appeal and the Rule to File Complaint and Rule to File issued by the Prothonotary, and transmits said documents to Plaintiff with no further action or review on my part. In this case, having not received said documents from the Prothonotary's office, she did nothing further. 6 Proceedings in said cases, particularly those in Somerset County and Bedford County, have moved slowly: a. In Teamsters Local Union No. 77 v. John Varga, Docket No. 5 CIVIL 2007, pending in Somerset County, Defendant's Notice of Appeal from an adverse District Justice decision was filed on 13 January 2007, with a Complaint filed by Plaintiff on 18 January 2007. Defendant thereafter filed his Preliminary Objections and/or Demurrer to Plaintiff s Complaint which have not, to date, been ruled upon; and b. In Teamsters Local Union No. 77 v. Michael Robinson, No. 1422 for the Page -2- year 2006, and others,' pending in Bedford County, Defendants' Notices of Appeal from adverse District Justice decisions were filed on 30 November 2006, with Complaints filed by Plaintiff on 16 December 2006. Defendants thereafter filed their Preliminary Objections and/or Demurrer to Plaintiff's Complaint. Argument was not heard on those pleadings until 4 June 2007, and short orders were not entered on them unti124 July 2007. 7. Because of the multitude of similar cases in which I am representing similarly- situated employees, I did not become aware that we had not received the date-stamped copy of the Notice of Appeal and the Rule to File Complaint and Rule to File issued by the Prothonotary until such time as I was preparing to conduct discovery of Plaintiff in the other pending cases. Upon the information gathered and provided to me by Ms. Stanley, it has become clear to me that the Notice of Appeal was, while duly deposited, lost in the United States Mail, and never received by the Prothonotary. 8. I anticipate that this case will be litigated quite similarly to each and every other case in which I am currently representing an individual being sued by Plaintiff herein. I declare under penalty of perjury that the foregoing is true and correct. Executed on0~ ~ July 2007. H:\WP\Pennsylvania Cases\Si]ks\Livengood\WJY.dec.wpd Friday, 27 July 2007, 13:10:25 PM ' Teamsters Local Union No. 77 v. Jeffrey Rupert, No. 1423 for the year 2006; Teamsters Local Union No. 77 v. William E. Clark, No. 1425 for the year 2006; and Teamsters Local Union No. 77 v. Michael D. Gibbons, No. 1426 for the year 2006. Page -3- -E~ ~q ~t ~ ' ~ g ,~ d ~ ~ ',t J oa . ~ W ~ g, v1 ,~,/ ~ oc+ 9J tl1 IN COURT OF COMMON PLEAS COUNTY OF CUMBERLAND COMMONWEALTH OF PENNSYLVANIA TEAMSTERS LOCAL UNION NO. 77, DOCKET No. CV-0000159-06 Plaintiff, AMENDED PETITION FOR LEAVE TO v. APPEAL NUNC PRO TUNC WENDELL LIVENGOOD, Defendant. AMENDED PETITION FOR LEAVE TO APPEAL NUNC PRO TUNC COME NOW Defendant, Wendell Livengood, by and through his attorney, and hereby submits his Amended Petition for Leave to Appeal Nunc Pro Tunc from the judgment entered by District Justice Paula P. Corneal in the above-styled action, and pursuant to Cumberland County Local Rule 208.3(a), shows as follows: 1. Hearing in the above-referenced matter was conducted on 18 December 2006, before the Honorable Paula P. Corneal, District Justice in District Court 09-2-01, in Cumberland County. Judgment for Plaintiff in the amount of $910.90 was entered on 18 December 2006, and Defendant was duly notified of the adverse judgment against him. 2. On Friday, 12 January 2007, Defendant's counsel prepared and signed, and his assistant duly mailed, First-Class mail, postage pre-paid, a Notice of Appeal, including the prescribed fee, to the Prothonotary's Office. See Declaration of Laverne K. Stanley (attached hereto), ¶ 3. Said Notice of Appeal was sent regular mail. Page -1- 3. Defendant's case is one among dozens of similar cases throughout the Commonwealth in which Defendant's undersigned counsel is representing similarly-situated individuals defending against similar claims brought against them by Plaintiff herein, or by another Teamsters local. Similar cases are pending in not fewer than six different counties of the Commonwealth (Dauphin; Bedford; Somerset; Allegheny; York; and Cumberland counties). Proceedings in said cases, particularly those in Somerset County and Bedford County, have moved slowly: a. In Teamsters Local Union No. 77 v. John Varga, Docket No. 5 CIVIL 2007, pending in Somerset County, Defendant's Notice of Appeal from an adverse District Justice decision was filed on 13 January 2007, with a Complaint filed by Plaintiff on 18 January 2007. Defendant thereafter filed his Preliminary Objections and/or Demurrer to Plaintiff s Complaint which have not, to date, been ruled upon; and b. In Teamsters Local Union No. 77 v. Michael Robinson, No. 1422 for the year 2006, and others,' pending in Bedford County, Defendants' Notices of Appeal from adverse District Justice decisions were filed on 30 November 2006, with Complaints filed by Plaintiff on 16 December 2006. Defendants thereafter filed their Preliminary Objections and/or Demurrer to Plaintiff's Complaint. Argument was not heard on those pleadings until 4 June 2007, and short orders were not entered on them unti124 July 2007. Declaration of W. James Young (attached hereto), ~ 6. ` Teamsters Local Union No. 77 v. Jeffrey Rupert, No. 1423 for the year 2006; Teamsters Local Union No. 77 v. William E. Clark, No. 1425 for the year 2006; and Teamsters Local Union No. 77 v. Michael D. Gibbons, No. 1426 for the year 2006. Page -2- 4. Upon review of the various files in this action, and in planning to conduct discovery, Defendant's counsel learned that his office had never received from the Prothonotary a date-stamped copy of the Notice of Appeal for service. See Declaration of W. 3ames Young, ¶ 7. Upon further inquiry by his legal assistant, it was discovered that the Notice of Appeal had not been received by the Prothonotary's office, and that the check for the appeal fee had not been negotiated. Stanley Decl., ~ 4. 5. Upon discovery of these facts, Defendant's undersigned counsel promptly prepared this Motion, and respectfully submits it contemporaneously with another copy of Defendant's Notice of Appeal and the required fee, this time transmitted via FedEx. 6. As the Superior Court observed in Nagy v. Best Home Services, Inc., 829 A.2d 1166, 1167, 2003 Pa.Super. 271 (2003}: "Allowance of an appeal nunc pro tunc lies at the sound discretion of the Trial Judge." McKeown v. Bailey, 731 A.2d 628, 630 (PA.SuPEx.1999) (citations omitted). In the usual case, where a party requests permission to file an appeal nunc pro tunc, it is because counsel for the appealing party has not timely filed an appeal. That party must therefore show more than mere hardship. Rather, a trial court may grant such an appeal only if the delay in filing is caused by "extraordinary circumstances involving `fraud or some breakdown in the court's operation through a default of its officers.' " Id., quoting Cook v. Unemployment Compensation Board of Review, 543 Pa. 381, 383-384, 671 A.Zd 1130, 1131 (1996) (other citation omitted). 829 A.2d at 1167 (original emphasis). Defendant respectfully submits that the facts of this case justify the granting of his Motion. 7. Here, as in Nagy, Defendant timely submitted his Notice of Appeal, re-submitted herewith. He attempted to transmit that Notice of Appeal to the Court via United States Mail, deposited with more than enough time to be transmitted in the normal course of business from Page -3- his counsel's office in Northern Virginia to the Prothonotary's office in Carlisle, Pennsylvania. It was apparently only through the vicissitudes of the United States Mail that the Notice of Appeal was not timely delivered or, in fact, delivered at all. However, as distinct from Nagy, the failure to file timely was not owing to "a breakdown in the court's operations," 829 A.2d at 168, but rather, a breakdown in the normal processes of the United States Postal Service. 8. Defendant respectfully submits that his counsel acted reasonably in mailing a Notice of Appeal five (5) days prior to expiration of the appeal period to an office fewer than 100 miles distant, and that his right to appeal should not be denied by virtue of the failure or error of the United States Postal Service. 9. Plaintiff will suffer no prejudice by virtue of the granting of Defendant's instant Petition. Plaintiff is pursuing similar cases, in similar postures, in not fewer that four other counties (Dauphin; Somerset; Bedford; and York counties) in the Commonwealth, against not fewer than two dozen defendants, all represented by the undersigned counsel of Defendant herein. Virtually all of said cases have been defended vigorously before various District Justices, and all save a few have been appealed. Plaintiff therefore had no reasonable expectation that this case would be treated any differently. Moreover, said defendants are raising defenses similar to those anticipated to be raised by Defendant herein. 10. Other than the Honorable Paula P. Correal, District Justice in District Court 09-Z- O1, in Cumberland County, from whose decision an appeal is saught to be taken, no Judge has ruled upon any other issue in the same or related matter. 11. On Wednesday, 1 August 2007, at approximately 3:00 p.m., concurrence in the Petition was sought telephonically from Kenneth S. Hall, opposing counsel before District Page -4- Justice Correal, and was denied. WHEREFORE, Defendant Wendell Livengood respectfully requests that his instant Petition be granted, that the Court grant him leave to appeal nunc pro tunc, and that the Prothonotary be directed to file his contemporaneously-submitted Notice of Appeal. DATED: 1 August 2007 esp lly submitted, W MES Y c, ESQ. Pennsyly ar No. 56300 c/o Nati nal Right to Work Legal Defense Foundation, Inc. 8001 Braddock Road, Suite 600 Springfield, Virginia 22160 TELEPHONE - (703) 321-8510 FACSIMILE - (703) 321-9319 ATTORNEY FOR DEFENDANT H:\WP\Pennsylvania CaseslSilksU.ivengood\AmLeaveAppeal.mot.wpd Wednesday, 1 August 2007, 15:06:15 pm, E.S.T. Page -5- CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Amended Defendant's Petition for Leave to Appeal Nunc Pro Tunc was deposited in the United States Mail, first class postage prepaid, addressed to: Kenneth S. Hall, Esq. 212 Cherry Street Norristown, Pennsylvania 19401 S~ this ~ day of August, 2007. Page -6- C'~ C~ ^' 4 ~ .r ~ ~t : ~~.9 y __ ./'"~ -~ _._, G.y rn ~ t =. ~ ' r ~ rj t °7 +; _ ~=+ .-,, " ~ ~: N ~ s~'t ~. • • '~"' --! !V '"~ NATIONAL RIGHT TO WORK LEGAL DEFENSE FOUNDATIONS INC. 8001 BRADDOCK ROAD • SPRINGFIELD, VIRGINIA 22160 • (703) 321-8510 Staff Attorney FACSIMILE - (703) 321-9319 Admitted in PA & DC only E-1VIAIL - wjy~ ft1'tW. org VIA FedEx Wednesday, 1 August 2007 Curtis R. Long, Prothonotary Cumberland County Court of Common Pleas 1 Courthouse Square Carlisle, PA 17013 RE: Teamsters Local Union No. 77 v. Wendell Livengood Docket No. CV-0000159-06 Dear Mr. Long: Pursuant to the letter from Melissa H. Calvanelli of this date, enclosed herein for filing please find Defendant's Amended Petition for Leave to File Appeal Nunc Pro Tunc. Please process this in accordance with the Pennsylvania Rules of Civil Procedure and returned the extra copies to me in the FedEx return envelope that I have enclosed for your convenience. Thank you in advance for your prompt attention to this matter. ~, dant WJY/lks cc: Wendell Livengood Kenneth S. Hall, Esq. H:\WP\Pennsylvania Cases\Silks\Livengood\LeaveApp.trs.wpd Wednesday, 1 August 2007, 15:08:25 pm, E.S.T. Defending America's working men and women against the injustices of forced unionism since 1968. PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This Proof of Service Must be filed within Ten (10) days after filing the Notice of Appeal. Check Applicable Boxes) Commonwealth of Pennsylvania County of ~nnharl and ; SS AFFIDAVIT: I hereby swear or affirm that I served a copy of the Notice of Appeal, Common Pleas No.07-4502 ,upon District Justice designated therein on (date of service) 8/3/ , 20,7 _ by certified/registered mail, sender's receipt attached hereto, and upon the appellee, (name) _ 2'Eamsters Local Union 77 , on 8~~ , 20 07 ~p~iee by certified/registered mail, sender's receipt attached hereto. and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellees) to whom the Rule was addressed on g/~ , 20~ ~j-peree++eFxrriee by certified/registered mail, sender's receipt attached hereto. 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N .; or Q~ ~ city, srat~' ZiP+M C~ ~ ~ ~' .-a -c~ ~- ~ ~7 , r ._ ' `_~ C-7 `r TEAMSTERS LOCAL UNION NO. 77, Plaintiff vs. WENDELL LIVENGOOD, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-4502 CIVIL IN RE: PETITION FOR LEAVE TO APPEAL NUNC PRO TUNC ORDER AND NOW, this / 3 ` day of August, 2007, a rule is issued on the plaintiff to show cause why the relief requested in the within petition for leave to appeal nunc pro tunc ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, C ~~ t .,.;~ I ~~ fir. i ~-.~~ ~~1 ~~ eft ~ I ~i~1~ LOCI ~V~R.~ ~~;_r~~~fi~ TEAMSTERS LOCAL UNION NO. 77, Plaintiff vs. WENDELL LIVENGOOD, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW : N0.07-4502 CIVIL IN RE: PETITION FOR LEAVE TO APPEAL NUNC PRO TUNC ORDER AND NOW, this ~" day of September, 2007, argument on the defendant's petition for leave to appeal nunc pro tunc is set for Thursday, October 4, 2007, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Kevin .Hess, J. Kenneth Hall, Esquire For the Plaintiff W. James Young, Esquire For the Defendant :rlm 4~'Y~o7 ~''l ~~~. f1 ~ =h Nd !.- d3S tEl~ ro~~ ~ TEAMSTERS LOCAL UNION NO. 77, Plaintiff vs. WENDELL LIVENGOOD, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07-4502 CIVIL IN RE: PETITION FOR LEAVE TO APPEAL NUNC PRO TUNC ORDER AND NOW, this ~' day of October, 2007, following argument thereon, the petition of the defendant to appeal nunc pro tunc is DENIED. Kenneth Hall, Esquire For the Plaintiff W. James Young, Esquire For the Defendant rlm BY THE COURT, t~+ ,.,~ ~. , i.;' ~; i"rr~~ Zn~1 ~. } ~~ ~~,. ~i~ ~~v {.1s ~;' TEAMSTERS LOCAL UNION N0.77, vs. Plaintiff WENDELL LIVENGOOD, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION -LAW NO. 07- 4502 CIVIL ORDER TO SETTLE. DISCONTINUE AND END To the Office of the Prothonotary: Kindly mark the above captioned matter Settled, Discontinued and Ended upon payment of your costs only. Date: ! ~ ~ ~ A#torney for Plaintiff, Teamsters Local Union No. 77 c ~' ~ r' ~ ..~ t". ~~ -' ~~~ ~ ;: r ; ~" ~ C:r?