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HomeMy WebLinkAbout08-0321COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag Dist No.: 09-3-04 MW Name Hon. THOMAS A. PLACEY Address: 104 S SPORTING HILL RD MECHANICSBURG, PA leiephone (717 ) 761-8230 17050 ATTORNEY FOR PLAINTIFF : JOHN A. DAVIDSON APT A292 208 N 3RD ST STE 130 HARRISBURG, PA 17101 THIS IS TO NOTIFY YOU THAT: DEFAULT JUDGMENT PLTF --- Judgment. ® Judgment was entered for: dame) - ® Judgment was entered against: (Name) in the amount of $ 1,915.25- F-1 are jointly and severally liable. ? Damages will be assessed on Date & Time L] This case dismissed without prejudice. 08 - S2011 ou C ivi Z"em NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rFETTEROLF, NUMLIN T 90 SALEM CHDRI7H RD LOT #525 PCHANCISBURG,, PA 17050 VS. DEFENDANT: NAME and ADDRESS rR-OGG, TIMOTHY 119 S. THIRD STREET LEMOYNE, PA 17043 L J Docket No.: CV-0000473-07 Date Filed: 7/26/07 (Date of Judgment) 12/03/07 FETTEROLF, MARLIN T HOGG, TIMOTHY I? Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 $ Portion of Judgment for physical damages arising out of residential lease T, Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total $ 1,404.00 $; 131.2 5 $ 40113. DO $ 1,915.2 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 PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. a (21or-w - Magisterial District Judge Date I certk-o that this is a true an correct-ryt#3q reeed-cif ttae. pr ceedings containing the judgment. 63 bate' Magisterial District Judge My commission expires first Monday of January, 2010 SEAL AOPC 315-07 DATE PRINTED: 12/03/07 2:42:00 PM l W of ? l C Q -n ;z co l1; Mr- p c r; c n i va`Y ?t David J. Lanza Attorney I.D. #55782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attomey for Defendant MARLIN T. FETTERHOFF IN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY, PENNSYLVANIA vs. TIM HOGG NO. 321 Civil 2008 Defendant DEFENDANT'S PETITION TO STRIKE JUDGMENT 1. A judgment was entered against Defendant by default by District Justice Thomas A. Placey on December 3, 2007. A true and correct copy of the aforesaid judgment is attached hereto as Exhibit "A." 2. A copy of the aforesaid judgment was mailed to Defendant Hogg at 119 S. Third Street, Lemoyne, PA 17043, which mailing was returned to the District Justice by the Post Office as undeliverable. A true and correct copy of the envelope containing the return notation is attached hereto as Exhibit "B". 3. Defendant received no actual or constructive notice of the judgment, as said judgment was mailed to an incorrect address and a different address than the address at which the original complaint was served. A copy of the return of service indicating an address at 304 Market Street for the Defendant is attached hereto as Exhibit "C. 4. The judgment notice was not sent to 304 Market Street despite service of the original Complaint being made at that address. 5. Defendant Tim Hogg maintains an address at P.O. Box 624, New Cumberland, PA 17070. 6. Neither Defendant nor any company owned by Defendant maintained an address at 119 S. 3rd Street at the time the District Justice entered judgment or mailed the notice to that address. 7. Defendant discovered that judgment had been entered only on January 17, 2008 and only after Plaintiff transferred the judgment to this Court and sent a Rule 236 Notice to P.O. Box 624, New Cumberland, PA 17070. A true and correct copy of the envelope in which the 236 notice was mailed is attached hereto as Exhibit "D." 8. Plaintiff gave the District Justice the address of 119 S. Third Street, Lemoyne for Defendant despite being aware of the New Cumberland P.O. Box from a related case. A true and correct copy of correspondence from Plaintiffs counsel to Defendant using the correct address in a related case is attached hereto as Exhibit "E". 9. The appeal period expired because Defendant was unaware that judgment had been entered due to the use of the invalid address for Defendant. 10. Defendant maintains a meritorious defense to any Complaint that Plaintiff might file. 11. Plaintiff has no basis for a Complaint against Defendant, in that Plaintiffs only relationship with Defendant was that Plaintiff guaranteed a residential lease in which Defendant was the Lessor. 12. The rental agreement that Plaintiff guaranteed in April 2006 specifically listed P.O. Box 624, New Cumberland as Defendant's address. A true and correct copy of the first page of the aforesaid agreement is attached hereto as Exhibit "F" 13. Defendant has filed this Petition in a timely manner after discovering the entry of judgment and the improper mailing of said judgment. 14. No judge has been involved in this case or any proceeding related thereto. Wherefore, Defendant requests that this Court enter an Order striking the judgment in this case, or, in the alternative, opening the judgment and allowing Defendant to file an appeal with Cumberland County Prothonotary. Respectfully submitted, CALDWEL EARNS Dated: By: 73 David J. Lanza Attorney I.D. #55782 3631 North Front Street Harrisburg, PA 17110 14-032/127994 (717) 232-7661 Jan 18 2008 12:36PM HP LASERJET FAX COMMQNWEALTH OF PENNSYLVANIA rni may np• .C91?SEALAliD MeQ. Gist. NO:: 09-3-04 MDJ Name: Hon. THOKAS A. 'PY.ACRY .Wd`ess: 1R4 S SPORTING HILL RD XMCSAKICOMMM, PA Telephone: (717.) 761-6230 17050 TIMOTHY HOG G 119 S. THIRD STRSST LRKOYNB, PE 13043 P.5 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAIN'nFF: NAME wd ADDRESS rFsTTSRO>vr KARLIN T , 90 9ALZK C$QACH RD . LOT. #525 LHSC83ICISBVRQ, PJk 17050 J VS. DEFENDANT- NAME and ADDRESS rzooQ, TXKDTHY 119 3. THIRD. STREET LZKO"Z, PA 17.043 L J Docket No.; CV-0000473-07 Date Filed: 7/26/07 Ago= THIS IS TO NOTIFY YOU THAT. - - DBr.AM"I??ZDDlfiihi??l'I'- Jud'ment. EDate c:f- g 1}.. 12 03 .07 Judgment was entered for: (Name) FETTEROLP, KARLIN T Judgment was entered against: (Name) HOGG, TIW%I Y • h f 1.915.2 In t e amount Q $ Defendants are jointly and severally liable. Damages will be assessed on Date & Time This base dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. §.8127 0 Portion of Judgment for physical damages arising out of residential lease Post ,Judgment. Credits sis $----?-- Post Judgment Costs $ Certified Judgment Total $ } ANY PARTY HAS, THE RIGHT TO.APPEAL WITHIN 30 DAYS AFTER Tim ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PIROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION: YOU MUST'INCLUDE A COPY OF. TM NOTICE OF JUDGM.ERWRANSCRIPT FORM VATH:YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWIStc PROVIDED IN THE RULES OF CIVIL PROCEDURE IF-on MAGISTERIAL DISTRICT JUDGES, IF THE _ JU0QME.I+1T_HQLMR.KWrrta TQ i :P THE JQD NT IR..TNE GDURT OF Cgk4MON PLEAS ALL FURTHER PFiOCE_ SS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PFIOGESS MAY BE Isij D BY THE 1i?AGI STEE41r1hL i515TF2iCT JUDGE . UNLESS THE.JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A,14WUEST FOR ENTRY°OF SATisPACTK>N-WITH THE MAGISTERIAL DISTRICT JUDGE IF THE. JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES IWITH. THE JUDGMENT. lui Date ,.Magisterial. District Judge I certi that this is a true a a. ceedings containing the judgment. Date Magisterial District Judge My commission expires first Monday of January, 2010 SEAL AOPC 315-07 DAT8 gBINT'BD: 12/03/07 2:42:00 PK Jan 18 2008 12:35PM HP LASERJET FAX 0 2 IF 00.410 0002423ECIS DEC 04 2007 MAILED FRS t4 E!P GORE 170 6 0 7• 1l' /.? art . ?;?..??' ?7 fj. ??' ;r ??? ? _. ? r',?t.,?ti+x.11 ??}'? -- 't-rJ?"'i? ? i ?`(f:??: ;??-'?? AU71 00 TO SENC?Ei? ? }k?GG TZMOT1-11? M4UNABLE TONFORWAR0SS RETURN TO SSNOER ?O c 1700.*03OS704 . moo. oar. 1,.,lli„?i11?„?i?1?l1,??;?1I?11?„?i,1?1,?.{tl?„,E,,1i„i?1 p.2 0??Yq ???y. ?.?Jan 18 2008 12:35PM HP LRSERJET FAX COMMONWEALTH OF PENNSYLVANIA COUNTY OF wag. D'nt. F1o,: 09-3-04 NDJ Flame: Hon. TROKILS A. PLACRY Am 104 S SPORTINQ SILL RD = MwffxCSBMQ, PA Talap.& (717) 761-8230 17050 Tsoms A. PL czy 104 S SPORTING BILL LLD HHCHAzxC88MW'.PA 17050 P.3 SERVICE OF PROCESS PLAINTIFF: MME WW ADDRESS rrarrMw1x. MULIM T 90 8ALNM CSAHCS iwy T 'arc JMCKUMIBWM, PA 17050 L J VS. DEFENDANT: NmE and uMIMADDRESS SHOW, TIIWTSY 119 s . THIRD STRMT LMWYM, PAL 17043 L J Docket No.: CV-0000473-07' Date Filed: 7/26/07 to (Madh Actually Served) - lati on M., al Q 19 at (Dater (Time) (Location) .For Landlord[Tenant complaints: Since none of the above found, served by posting a copy of the complaint conspicuously an the Miles Traveled: (Signature) A0FC 624-04 (Print Name and Tide) DATR P233M % 7/26/07 11:47226 AK Jan 18 2008 1:32PM HP LASERJET FAX 19 .r" ;T+ till y, ? r "3 {ti 4D M Y a' .f J [ .1, s z a v 0 z r. r 'T r L ^'C i. a p.2 p.2 Jan 18 2008 12:37PM HP LASERJET FR 77 d^ L_4W OmcB of JOHN A. DAvtosoN AMORNEr$GOUNSC•LOR rL4W 208 North Third Street Suite 130 Harrisburg, Pennsylvania 17101-1513 Telephone. (717) 238-4043 E-Mail, JADQjohnADavidsonESQ.com Fax: (717)2384198 August 16, 2007 Mr. Timothy Hogg PO BOX 624 New Cumberland, PA 17070 Dear Mr. Hogg, Enclosed is our complaint filed in answer to your appeal of the District Magistrate Appeal. If you have any questions feel free to contact me. Sincerely, t.. Jahn A. Davidson Enclosures RENTAL AGREEMENT THIS IS A LEGAL DOCUMENT. By signing, the Tenant agrees that Tenant has read this lease and has had the opportunity to ask questions about the lease. 'a'le Tenaaeit and Landlord aLgree that THIS IS A LEASE. T mothy. Hogg is t.be Landlord. ++ t .??? j tm the Tenant. at z Afki,'? stza?. T is e? s tb P K J?- Q . ? s. _.lease.. gs n n - + GS This lease ends on .Tenant must Notify Landlord in writing Sixty days efo the end of this lease that Tenant is moving out. If Tenant does not notify Landlord that he/she is moving out, the lease will automatically become a month-to-month lease. In order to end the lease during the month-to-month periods, the Tenant must notify Landlord in writing at least 60 days before Tenant intends to move out. A full month's rent shall be due for any partial month in which Tenant occupies the apartment. The total rent for this lease is $ )0,500-()() (yearly) payable in monthly installments of $T(6.00 Rent is due in advance on or before the FIRST day of each month of this Lease. Rent is to be mailed to the following address: Tim Hogg PO Box 624 New Cumberland, PA 17070 Rent Meeks or None?y -®rders are to be made out to "Tim Hogg" only. SECURITY DEPOSIT: The Tenant has deposited an amount equal to one month's rent 'A l iV,00 as a SECURITY DEPOSIT. This security deposit is eld by the Landlord in full throughout the term of the lease regardless to the amount of the deposit and applied to any damages to the apartment caused by Tenant, his/her family, guests or pets. The Security deposit can also be used for any damages from breaking the lease, Tenant's unpaid bills, or not paying part of the rent due. At no time during the tenancy will any part of the deposit be refunded. Security deposit shall be refunded withtn thirty days of the end of the month in which the lease terminates. 1 s?? . = .--+ ? . _-; C.. T`?# ^ ".i r ?? ?.. W ` .? ??. ? .. - t ?...+' -r +?_ (0jj U David J. Lanza Attorney I.D. #55782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attomey for Defendant JAN 2 2 Mb r^v MARLIN T. FETTERHOFF IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 321 Civil 2008 TIM HOGG Defendant ORDER And now, thiso?;? day of January, 2008, a Rule is issued upon Plaintiff to show cause, if any he has, why the relief requested in Defendant's Petition should not be granted. P All proceedings to stay in the meantime. J. ?? ?r 4t., s3oj9d I MARLIN T. FETTEROLF PLAINTIFF VS. TIMOTHY HOGG Defendant IN THE COURT OF COMMOPLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 321 Civil 2008 AND NOW COMES the Plaintiff, Marlin T. Fetterolf, an adult individual, by his attorneys, The Law Office of John A. Davidson, respectfully represents: 1. Admitted. 2. Admitted. 3. Denied, specifically on August 15, 2008 the District Magistrate omas Placey signed a Notice of Intent to Defend, Attached hereto as Exhibit A, indicating that the Defendant was aware that there would be a hearing. Further such an act on indicates that the Defendant was aware of the content of the complaint including that it was addressed to an old address, an address that was published in the 2007-2008 Harris urg Yellow Book Directory. 4. Admitted. • 5. Admitted, by way of further clarification the 119 S. Third Street as belonging to Timothy Hogg on Page 311 of the 2007-2008 Harrisbui Directory. 6. Denied. 7. Denied 8. Denied. By way of clarification at the time this suit was initiate, handling this matter Pro Se at the time of filing. 9. Denied. 10. Denied. 11. Denied. 12. Denied. 13. Denied. 14. Admitted. NEW MATTER 15. The Plaintiff incorporates by reference the preceding paragraph was set forth fully herein. 16. On or before August 15, 2007 the Defendant went to District Ma H. Placey office and filed a Notice of Intent to the Defend. 17. At that time the Defendant knew that the Original Complaint w incorrect address as he had sufficient notice to file a Notice of Intent to ddress was listed Yellow Book Plaintiff was is if the same ate Thomas served at 18. The Defendant was either notified at the time of his filing of the ew date or in the alternative would have been notified by mail if he had provided a corr ct address. As the Defendant has had many encounters with numerous District Magis rates he would have been awaiting the notice of a new trial date. Failure to get one sh Id have caused him to inquire. 19. The Defendant knew or should have known of the trial date any gnorance of the trial date would be due to his not prudently correcting the incorrect ad ress when he file his Notice of Intent to Defend. 20. The Defendant was aware of the outcome as he choose not to come to the District Magistrate hearing on December 3, 2007. Wherefore, the Plaintiff request that the Defendant's Motion to denied. Judgment be fohn A. Davidson ID No. Attorney for Plaintiff EXHIBIT A Received Fax : Jan 25 2008 3:34PM Fax Station : Law Office John A Davidson . 3 01/25/2008 15:26 7177376779 COMMONWEALTH OF PENNSYLVANIA rrnl KiTV nP CUMERLAND DISTRICT COURT 09304 PAGE 03 Meg. Disc. No 09-3-04 MOJ Name Hon. THOMAS A. PLACZY Add,esn 104 S SPORTING HILL RD XZCRANICSBURB, PA Telaenon, (717) 761-0230 17050 THOMAS A. PLACEY 104 S SPORTING SILL RD MCEASICSSURG, PA 17050 HEARING: CIVIL ACTION BEARING NOTICE OF INTENT TO DEFEND PLAINTIFF: NAME end ADDaESS rFETTEROLF, MARLIN T 9 0 SALEN CHURCH RD LOT #525 LMECBANCISHURS, PA 17050 vs. (DEFENDANT: NAME aid ADDRESS FEOOG, TINOTBY 119 S. TdIRD STREET LICKOY1Ri , PA 17043 L Docket No.: CV-0000473-07 Aeft- Date Filed 7/16/07 Date: 12/03/07 Place!DISTRICT COURT 09-3-04 104 S SPORTING HILL RD Time: 1:15 Ps M CHANICSBURG, PA 170501 PLAINTIFF: FETTEROLF, MARLIN T You are hereby notified that the defendant named below has given notice of his intent to present a defense at the hearing in the above case. DEFENDANT: NOGG, TXXOTHY 8/15/07 Date My commission expires first Judge J J DATE PRINTED: 6/15/07 9t44:25 lUl AOPC 623-05 ca V 1 MARLIN T. FETTEROLF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TIMOTHY HOGG : NO. 321 CIVIL 2008 ORDER OF COURT AND NOW, this 7TH day of MARCH, 2008, a hearing on Defendant's Petition to Strike Judgment is scheduled for THURSDAY, APRIL 24, 2008, at 10:30 a.m. in Courtroom # 3 of the Cumberland County Courthouse, Carlisle, Pa. By urt, Edward E. Guido, J. ,1,66n A. Davidson, Esquire 208 North Third Street, Suite 130 Harrisburg, Pa. 17101-1513 ,avid J. Lanza, Esqui 3631 North Front Stre Harrisburg, Pa. 17111 : sld 0 £ a3 Wd L- NVN B00Z JWIQNUHIQbd 3Nl 30 30WA?-WM David J. Lanza Attorney I.D. #55782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendant MARLIN T. FETTEROLF, Plaintiff vs. TIM HOGG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : NO. 321 Civil 2008 DEFENDANT'S ANSWER TO PLAINTIFF'S NEW MATTER TO PETITION TO STRIKE JUDGMENT 15. Defendant/Petitioner incorporates the averments of paragraphs 1 - 14 as if fully set forth herein. 16. Admitted in part. Denied in part. It is admitted that Defendant indicated to the office of the Magisterial District Justice his intention to defend. By way of denial, this averment is irrelevant to the facts and claims of this Petition. 17. Denied. The original Complaint was not served at an incorrect address. The original Complaint was served at 304 Market Street. Had all subsequent notices been sent to the same address at which process was originally served (304 Market Street), Defendant would have been aware of the judgment and would have timely filed an appeal. 18. Denied. Had any such notice been sent to the same address at which the original process was served (304 Market Street), Defendant would have been on notice of the trial date. The remainder of this averment constitutes a conclusion of law which requires no responsive pleading. 19. Denied. Had the subsequent notices been mailed to the same address at which service was made, the aforesaid issue would not have arisen. Service was made at a correct address (304 Market Street). Subsequent notices were mailed to a different address. 20. Denied. Defendant did not "choose not to come to the District Magistrate Hearing on December 3, 2007." Regardless of Defendant's attendance, Notice of Judgment must be mailed to Defendant's last known address - the same address at which service was made - 304 Market Street, Lemoyne. Contrary to this requirement, notice was mailed to a different address. The Post Office returned the notice to the Magisterial District Justice Office after the Magisterial District Justice Office mailed the notice to an incorrect address provided by Plaintiff at which Defendant did not receive mail. The Magisterial District Justice Office never mailed anything to the service address - 304 Market Street. WHEREFORE, Defendant requests that this Honorable Court enter an Order striking the judgment and allowing Defendant to enter an appeal. Respectfully submitted, i David J. Lanza CALDWELL & KEARNS Date: CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document this day of April 2008, on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: John A. Davidson, Esquire 208 North Third St., Suite 130 Harrisburg, PA 17101-1513 CALDWELL & KEARNS 14-034:131880 c? ? !: L:D ;.? 5`? i 4 ? ? ? s°Tl ... . r? r {_.., .._., _,: ,; i.°? ? ,- ?-? -?G David J. Lanza Attorney I.D. 455782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney.for Defendant MARLIN T. FETTEROLF, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA TIM HOGG, vs. : NO. 321 Civil 2008 Defendant PRAECIPE TO FILE DEPOSITION Please file the Deposition of Timothy Hogg of record in the above matter. Respectfully submitted, David J. Lanza Date: CALDWELL & KEARNS II TO THE PROTHONOTARY: CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document this 02y of April 2008, on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: John A. Davidson, Esquire 208 North Third St., Suite 130 Harrisburg, PA 17101-1513 CALDWELL & KEARNS y 14-034:132091 Co s. I CD { '?? C-n ;zl 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA MARLIN T. FETTEROLF, PLAINTIFF VS TIMOTHY HOGG, DEFENDANT APPEARANCES: LAW OFFICE BY: JOHN FOR - CALDWELL & BY: DAVID FOR - NO. 321 CIVIL 2008 DEPOSITION OF: TIMOTHY HOGG TAKEN BY: DEFENDANT BEFORE: TERESA K. BEAR, REPORTER NOTARY PUBLIC DATE: APRIL 14, 2008, 10:12 A.M. PLACE: CALDWELL & KEARNS 3631 NORTH FRONT STREET HARRISBURG, PENNSYLVANIA OF JOHN A. DAVIDSON k. DAVIDSON, ESQUIRE PLAINTIFF KEARNS J. LANZA, ESQUIRE DEFENDANT GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 FOR DEFENDANT Timothy Hogg HOGG EXHIBIT NO. TABLE OF CONTENTS W I T N E S S DIRECT CROSS REDIRECT RECROSS 3 17 30 31 E X H I B I T S PRODUCED AND MARKED 1 - Rider G, rental guarantee 4 2 - Copy of envelope 13 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 TIMOTHY HOGG, called as a witness, being sworn, testified as follows: MR. LANZA: This is the date and time set for the deposition of Timothy Hogg in this captioned matter. DIRECT EXAMINATION BY MR. LANZA: Q Mr. Hogg, can you state your name for the record. A Timothy Hogg, H-o-g-g. Q What's your occupation? A I'm a real estate owner. Q What is your current mailing address? A P.O. Box 624, New Cumberland, 17070. Q How long have you maintained that address? A Since 1995. Q And do you know a man by the name of Marlin Fetterolf? A Yes. Q Have you had dealings with him? A Yes. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 10 r L_ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 Q What were those dealings and if you'd just summarize them briefly? A He was the guarantor of a lease for Monica Hand and Joshua Traxler. Q What property was that? A 211 Market Street, Unit C, New Cumberland. Q And were you the landlord? A Yes. Q And Monica Hand and Joshua Traxler, were they the tenants? A They were the tenants, yes. Q I'm going to give you what I'm having marked as Hogg Exhibit 1. (Rider G, rental guarantee produced and marked as Hogg Exhibit No. 1.) BY MR. LANZA: Q And I'd ask if you recognize that. A Sure I do, that's our standard rental guarantee for guarantors. Q And to the best of your knowledge is that Mr. Fetterolf's signature? A Yes. Q And this is part of a larger lease document? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 C 1 ] • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct. Q And who were the tenants on that lease? A Monica Hand, Josh Traxler. Q And that's indicated in the first paragraph? A Yes, it is. Q Why did you need a guarantor for that lease? A They had substandard credit so we needed, you know, s ome additional form of security. Q Did Mr. Fetterolf live in the property? A No, he did not. Q And under this lease, did you have any obligations to Mr. Fetterolf? A No. Q Did the tenants eventually go into default? A Yes, they did. Q And what did you do then when the lease went into default? A Well, they moved out before I did anything, but they turned over the apartment with an outstanding balance. Q What did you do about that outstanding balance? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A I turned it to collections. Q And did that include Mr. Fetterolf as well? A Oh, yes. Q And did you ever collect any money from him? A Yes, I did - - or actually the collection agency did. Q Okay. A And I eventually received a check in the amount of $383. Q Was there still outstanding obligations? A I don't think so. I think that took care of the entire obligation. Q Do you know why Mr. Fetterolf is apparently suing you at this point? A No, I don't. Q How did you discover that there was a judgment entered against you? A How did I discover it? Q Yes. A I received a letter from Mr. Davidson somewhere in the middle of January. Q And what I'm going to show you is we filed a petition in court, as you're aware, and just GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ?J 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 for the record the petition was filed January 22nd, 2008. It's labeled Defendant's petition to strike judgment. There are a number of exhibits attached to the petition which I'll be referring to. So we won't mark -- for the record, we won't mark those separately. We'll just refer to the exhibit labels that were on the original petition. I'm going to show you Exhibit A -- A Okay. Q -- to the petition. Do you recognize that document? A Yes, I do. Q What is that? A It's a default judgment transcript in the amount of 1915.25 from Thomas Placey. The plaintiff is Marlin Fetterolf and the defendant is Timothy Hogg. This is what I received -- actually first received from Davidson's office. Q Hold on now, before we go on. So when's the first time you saw this piece of paper? A In the middle of January. Q When was judgment entered? A Judgment was entered on 12/3/07. Q And it lists an address of -- for Hogg, Timothy at 119 South Third Street, Lemoyne. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Yes. Q Is that your mailing address? A No. Q Is that your property? A Yes. Q Are there tenants in that property? A Are there tenants in the property currently, yes. Q Was that your address in December of '07? A No, it was not. Q And do you normally have mail go to your tenants that is intended for you? A No. Q Now, I'm going to show you Exhibit B of the same petition and ask you what that is. A That is a copy of the envelope that I received from the DJ's office. Q When you say you received it, when did you receive it? A Upon receiving Mr. Davidson's letter, I called the DJ's office, asked, you know, what was going on. Q And when was this? A Probably the day or the day after I actually received the letter. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 • • 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 9 Q What month are we talking about? A Oh, January. Yeah, January. Q So you called the DJ to find out what -- where did you get that piece of paper that's Exhibit B? A I went to the DJ's office and asked to see the file and I had requested that they make several copies of items within the file and they did so and they provided them to me. Q So what is that that's Exhibit B? A That's a copy of the envelope that was sent to -- that was sent to the 119 South Third address. Q And what does it indicate that happened to that mailing? A It was returned to sender. Q And the sender being? A The sender being Thomas Placey, DJ. And that's dated here 12/5/07. Q So from the document itself you never got the document? A Never got the document, no. Q Now, I'm going to show you Exhibit C, the same petition. Can you tell me what that is? A Exhibit C is the service of process that GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • L` 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10 was generated as a result of the Fetterolf -- the original Fetterolf complaint. Q So I'm going to show you or point you to the bottom. Whose signature is that? A That is Elfren Garcia. Q Who is he? A Well, he -- in this case he's actually the process server or the constable that came out. We know him as one of our tenants, as a matter of fact. Q He was a tenant on another property? A Correct. Q What address did he make service? A He made service at 304 Market Street, Lemoyne. Q What was there at that time? What was at 304 Market in Lemoyne at that time? A We had an office there. Q And how did he find you? How did he know you were there? A Well, since he was a tenant of ours, he just called Georgette. He knew how to get ahold of Georgette, called her and she took the -- she was she was able to accept, you know, the process, whatever you call that thing. Q And Georgette -- there's a Georgette GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1" • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Tinkey listed on this paper. A Yes. Q Is that the same person? A Yes. Q And who is she? A She's my leasing manager. Q And when did you obtain this document? A When did I obtain this document? I received that on the same day that I went to the Placey off ice. That was one of the copies. Q And, again, when was that? A Or, no, excuse me, wait a minute. Yes, yes, yes, that was. Q When was that, again, that you went to the Placey office? A Oh, the middle of January sometime. Q And this was after discovering that there was a judgment entered? A Correct. Q I'm going to show you -- first I'm going to ask you, did Mr. Davidson, attorney for the plaintiff, did he have reason to know your correct address? A Yes. Q I'm having you look at Exhibit E of the GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 12 • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 petition that we filed. Do you recognize that document? A Yes. Q What is that? A It's a letter that filed an appeal at the DJ office for another suit that shows our correct mailing addre ss to be P.O. Box 624, New Cumberland. Q And where did you get this letter from? A From Mr. Davidson. Q What address does it indicate? A P.O. Box 624, New Cumberland. Q When did he send i t? What's the date on it? A It would be August 16th, 2007. Q And there was a different suit that Mr. Davidson was involved in? A It's related to this case, but, yes. Q And he sent it to Box 624? A Yes. Q Now, I'm going to turn back to Exhibit D and ask you what that is. A That is the -- the envelope -- apparently the envelope the letter came in. Q And this did arrive at your -- A P.O. box, yes. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1, • C: C 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q And the envelope that's Exhibit D, whose return address is on that? A The return address would be Law Office of John A. Davidson. Q And to whom is it addressed? A Timothy Hogg, P.O. Box 624, New Cumberland, PA, 17070. Q And just for the record, since there will be another envelope, this is the one with the James Stewart stamp on it. MR. DAVIDSON: They didn't have Darth Vader. BY MR. LANZA: Q Have you received other mailing recently from Mr. Davidson? A Have I received other mailings, yes, yes. Q I'm going to show you what we're going to have marked as Hogg Exhibit 2. (Copy of envelope produced and marked as Hogg Exhibit No. 2.) BY MR. LANZA: Q And I'm going to ask you if you recognize that. A Yes. Q And what is that? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1Z • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A It's an envelope addressed to Timothy Hogg, P.O. Box 624, New Cumberland, PA, 17070 which contained a 10-day notice with regard to another -- the other suit that we earlier discussed. Q The other action, all right. And whose return address is on this envelope? A Law Office of John A. Davidson. Q So this one came to the correct address also? A Yes. Q And then we did respond to that other suit? A Yes. Q That's still pending, as far as you know? A As far as I know, yes. Q And just for the purpose of the record, just to distinguish between the envelopes, this exhibit has a lighthouse stamp on it? A Yes. Q Now, I'm going to show you what is marked in the petition as Exhibit F and ask if you recognize that. A Yes. Q What is that? A A copy of the front page of the rental GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 • 10 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 15 agreement signed between Monica Hand, Josh Traxler and Timothy Hogg. Q And this is part of the same document that we included as Exhibit 1, which was the guarantee? A Yes. Q Does this document indicate an address for you? A Yes, right in the middle of the page, set off from everything else, Tim Hogg, P.O. Box 624, New Cumberland, PA, 17070. Q And at the time of the execution was a copy of this lease provided to the tenants? A At the time of the execution of the lease, yes. Q And was a copy also provided to the guarantor? A I do not know. We generally do not send to the guarantor unless they request it. Q So that would be a matter for the leasing agent to have handled? A Yes. Q When you received notice from Mr. Davidson after -- was it after the appeal period had expired, after the judgment? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 lE • E 13 1 2 3 4 5 6 7 8 9 10 11 12 14 15 16 17 18 19 20 21 22 23 24 25 A I'm sorry, can you repeat that question? Q You testified earlier you got a letter from Mr. Davidson. A Yes. Q In January -- A Okay, yes. Q -- telling you there was a judgment entered. A Yes. Q And it was after the appeal period had expired? A Just after, yes. Q What did you do when you got that? A I called Mr. Davidson. Q And for the purpose of trying to work something out or -- A I tried to work something out. Q What was his response? A His response was to swear at me, call me pig and hog and -- MR. DAVIDSON: Objection. BY MR. LANZA: Q You can finish your answer. A And, you know, several times I tried to make some -- some kind of peace and didn't -- it GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17 didn't seem to happen so I ended the telephone call. MR. LANZA: At this point those are all the questions I have. I turn it over to Mr. Davidson for cross-examination. CROSS-EXAMINATION BY MR. DAVIDSON: Q In the Verizon 2007 phone book what does it list your address as? A I have no idea. Q Did you not place the ad? A (Witness shook his head negatively.) Q You placed no ad in the Verizon phone book? You didn't have a phone listing? A I have honestly no idea. MR. LANZA: Wait. Just for the record, you were shaking your head. You have to answer verbally. A Oh, I apologize. I have no idea what was in the Verizon -- whichever telephone book you're talking about. BY MR. DAVIDSON: Q Did you go to Thomas Placey's office on I August 15th? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 A August 15th? What would have happened August 15th? Help me out with that. Q If you look at our answer, you filed a notice of intent to defend. A I probably called that in, in all honesty. Q Called it in, okay. And did you ever get a notice of intent to defend served on you by the DJ? A I don't recall. Q You don't recall. According to the clerk, you showed up personally. A I -- MR. LANZA: Objection. A Yeah, I -- MR. LANZA: You can answer. A Yeah, I -- I honestly don't recall if I went there personally or if I called in. Normally in such a case I merely call in. MR. LANZA: Just for the record -- BY MR. DAVIDSON: Q Were you aware -- MR. LANZA: Hold it. I'm not finished with my objection. Just for the purpose of the record, that question included hearsay and also was argumentative. Go ahead. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 10 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 19 BY MR. DAVIDSON: Q So it's your position you never got a notice of intent to defend? A I won't take that position because I honestly don't recall. Q So you were unaware of a trial date set for December 3rd? A No, I was aware of it but -- I was made aware of it. I could have been made aware by telephone. I do not know. Q How many times have you been in district magistrate court? A I'm a landlord. I own a lot of units. Q Okay. A I can't -- I can't count on two hands, if that's what you're asking. Q You generally represent yourself in these proceedings? A Yes, for the most part. Q So you're familiar with district magistrate procedure? A Correct, although I will say this, from district magistrate to district magistrate, each one proceeds slightly differently. So each -- and I have never been in front of Thomas Placey so ... GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2C • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 • 23 24 25 Q Never in front of Thomas Placey, okay. So you were aware of the trial date? A Yes, I was. Q And you had intent to defend? A I had intent to defend, yes. Q Why didn't you? A It's actually kind of sad. My BlackBerry quit in November. I transferred all my data from one BlackBerry to another BlackBerry and nobody told me that the calendars don't transfer and that was the only thing that was out that far. Q Are you aware of any time which I became Mr. Fetterolf's attorney? A The document there -- I don't think it was on there or anything about you being the representative. MR. LANZA: I'm going to object on relevance. Go ahead. MR. DAVIDSON: The relevance is he seems to be making a heck of a case that I screwed up, okay. MR. LANZA: Well, I'm going to object. MR. DAVIDSON: And if he's going to -- he's going to have to base all that on facts not in evidence. MR. LANZA: Well, our case is not GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 21 1 is 2 3 4 5 6 7 8 9 10 11 • 12 13 14 15 16 17 18 19 20 21 22 23 24 25 necessarily that you screwed up. It's not about you personally, Mr. Davidson. MR. DAVIDSON: Okay. MR. LANZA: It sounds like potentially the DJ screwed up. BY MR. DAVIDSON: Q Are you aware of this -- you did get good service, did you not? You did get this service in your hand, the -- A The original -- the original service process, yes, but only because it went to -- it went through Elfren Garcia who knows us and Georgette -- Q Just answer the question. That's fine. A Well, that was -- and written on that form -- Q Sir, just answer my question. A -- is 304 Market Street. I did. We got good service at 304 Market Street. Q Right. And when you filed your notice of intent to defend, you did know that -- A I had every reasonable intention to defend, yes. As a matter of fact -- Q Well, let me -- A I have reason for intent to defend. Q May I ask a question? GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2, I41 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. LANZA: Hold it. A Sure. MR. LANZA: First of all, I'm going to ask you, Mr. Davidson, not to raise your voice in this room. MR. DAVIDSON: All right. Well, then I expect your client to answer the question and not rattle on. MR. LANZA: I object to that characterization. Please go on to the next question. MR. DAVIDSON: Okay. BY MR. DAVIDSON: Q At the time you got service, did you read the complaint? A The complaint. I'm sure I did. Q The piece of paper -- okay, did you notice that your address was incorrect? A I -- no. Q You didn't notice that at all? A (Witness shook his head negatively.) Q You did know to go to the DJ, did you not? A Well, I didn't go so -- I was supposed to go, I didn't go. Q Well, I mean you went to the DJ to file GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 23 your notice to defend? A I don't think I went to the DJ. I think I actually called it in, but, you know, like I said -- Q Okay, so what were you doing on August 15th, 2007? A I honestly can't recall. Q Your BlackBerry died, okay. MR. LANZA: Object to that characterization. MR. DAVIDSON: Well, his BlackBerry died. It's a fact he's already testified to. MR. LANZA: Well, it didn't relate to why he doesn't remember August 15th. MR. DAVIDSON: Well, he might be able to go back and look at it, refresh his recollection. BY MR. DAVIDSON: Q Did you engage ANS Collection Associates? A Yes. Q Where did you find them? A Kind of a convoluted story, but a gentleman approached me back in 2000 -- or probably 97 or '98. Q So you've used them for some time? A Many years, yes. Q When you didn't get the notice to defend GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 10 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 24 sent from the DJ, did you make any inquiries? A I don't know if I didn't get the notice of intent to defend. Like I said, I get -- I get paperwork from all over. So it can be generally, you know, confusing. Q So you have never had an office at the address that it was served at, the previous -- the wrong address, you've never had an office there? A For a short time I had an office there. Q When was that? A Good question. Hogg Properties had an office there for all of four or five months. Q When? A Through the winter and spring prior to that year. Q Spring of 2007? A Yes. Q When you moved your office to wherever, did you put a change of address notice in? A For Hogg Properties, yes. Q Not your personal mail? A I never received -- I never received personal mail there. Q What did you offer to settle this case? MR. LANZA: Objection. He's not going to GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 2E 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 talk about his settlement offers. That's not admissible. MR. DAVIDSON: Okay, all right. BY MR. DAVIDSON: Q When was Hogg Properties, LLC formed? A That's a good question. Q Hopefully you were there. A Dave might actually be the better guy to answer that question. Was it '05? MR. LANZA: Well, I'm going to object to relevance. They're not even a party to this case. It's a separate entity. BY MR. DAVIDSON: Q If the judgment stands, do you have the ability to pay it? MR. LANZA: Objection. A That's -- MR. LANZA: Objection. This is not about asset discovery. MR. DAVIDSON: You opened the door. There is no reason to depose a client for his deposition in the first place. MR. LANZA: Well, that's a legal conclusion which I submit is incorrect, but notwithstanding that this is not asset discovery. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 26 lie ? 0 • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 BY MR. DAVIDSON: Q Did there ever come a time that what was owed in the underlying rental agreement turned out not to be owed to you? A I'm not sure I understand the question. Q I'm not sure I understand it either. Let me clear that up, okay. A Okay. Q The debt that was owed to you that was paid by Mr. Fetterolf -- A Okay. Q -- was based on a lease signed by Ms. Hand and a Josh Traxler. And did there come a time that that was invalidated for any period of time? A I'm not sure I understand -- Q That they didn't owe you the money. A I would submit that they do owe me the money. Q It's still under litigation at this point? A Right. So the question still needs to be answered. Q Well, the question -- okay, we'll move on. A By a judge. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 27 • • • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Okay, fair game. Are you aware of the tactics used by ANS Collections? A By the what? Q Are you aware of the tactics used by ANS Collections? A I'm sure that they are -- they're a federally monitored company, you know, under -- from what I understand, they use everything within the Fair Credit Reporting Act and the fair -- what is it, the Fair Collection Act? Q Fair Debt Collection Practices. A Yeah, that's what I understand. I don't -- Q Okay. MR. LANZA: Let him finish. He was saying something else. A I don't -- you know, they're contractors. Therefore, it's not up to me to monitor their day-to-day activity, just as I wouldn't monitor Dave's day-to-day activity who is a contractor of mine as well. MR. DAVIDSON: Okay. A Dave meaning Mr. Lanza. BY MR. DAVIDSON: Q Attorney Lanza, okay. Well, we'll take GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 r? L 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 28 that -- okay. But you did hire ANS Collections? A Sure. Q Personally, it wasn't Georgette or whoever your assistant was? A No, I -- I am in charge of who goes where and Q Okay. When you didn't hear from the DJ court in December, you knew some day in December they were going to have a hearing, didn't you? A You know what, my company is a good size. I don't -- I don't -- unless I have it on the calendar, I am not going to be able to retain -- especially since, you know, this was -- this was August or so. So, you know, four months is a long stretch for my little brain to be able to retain that information. Q Question, how many properties do you own or does your company own? A Various entities, 23. Q Twenty-three properties, okay. How geographically dispersed are these properties? MR. LANZA: Again, this is not asset discovery. MR. DAVIDSON: I'm not doing asset discovery. I'm asking the extent -- he claims he GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 ? 9 I? • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 29 doesn't know, he just has vast holdings. I want to know how vast his holdings are. MR. LANZA: Well, no, he did not open the door to asset discovery by -- MR. DAVIDSON: I'm not doing asset discovery. I didn't ask where the properties were. MR. LANZA: Well, you asked geographic. MR. DAVIDSON: Well, are they in four counties, two counties, one county. MR. LANZA: I'm going to object here. I think at this point we've gone beyond the purpose of this -- we've gone beyond the matters referred to in this petition and the answer. MR. DAVIDSON: Well, he still has to answer. MR. LANZA: Well, I would submit he does not at this point. MR. DAVIDSON: Then we'll ask this entire deposition be stricken. MR. LANZA: Well, I don't think you'll get anywhere with that. Do you have anything further? MR. DAVIDSON: No. MR. LANZA: All right. I have a follow-up. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 r? E • 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 30 REDIRECT EXAMINATION BY MR. LANZA: Q Hogg Properties, LLC, that's a separate LLC? A Correct. Q And there was a reference earlier to an ad. I think Mr. Davidson asked you if you placed an ad. Did you place an ad in the phone book? A For Hogg Properties or -- Q For yourself. A -- for Tim Hogg? No, I would never put an ad in for Tim Hogg. Q And did you ever place an ad listing 119 South Third Street as an address? A No. Q Now, just to clarify what we're claiming here, we're not claiming that the service of the original complaint was incorrect. It's the service of the judgment notice that was to the wrong address. A I agree. Q Just so we understand that for the record. MR. LANZA: I don't have anything further. GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 1 is 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 31 MR. DAVIDSON: I do. RECROSS-EXAMINATION BY MR. DAVIDSON: Q Did you ever have a telephone on the Third Street address? A Yes. Q It was listed in the phone book? A I do not know. Q Did you ask it to be unlisted? A Probably Georgette took care of it. Q Okay, lack of personal knowledge, I'll buy that. A Yeah. Q Okay. MR. LANZA: Was that it? MR. DAVIDSON: That's it. MR. LANZA: Nothing else for me. (The deposition was concluded at 10:43 p.m.) GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 10 25 18 19 20 21 22 23 24 COUNTY OF CUMBERLAND SS COMMONWEALTH OF PENNSYLVANIA I, Teresa K. Bear, Reporter-Notary Public, authorized to administer oaths within and for the Commonwealth of Pennsylvania and take depositions in the trial of causes, do hereby certify that the foregoing is the testimony of TIMOTHY HOGG. I further certify that before the taking of said deposition, the witness was duly sworn; that the questions and answers were taken down stenographically by the said Teresa K. Bear, a Reporter-Notary Public, approved and agreed to, and afterwards reduced to typewriting under the direction of the said Reporter. I further certify that the proceedings and evidence are contained fully and accurately to the best of my ability in the notes taken by me on the within deposition, and that this copy is a correct transcript of the same. In testimony whereof, I have hereunto subscribed my hand this 16th day of April 2008. ----------------------------- Teresa K. Bear, Reporter Notary Public my commission expires on April 25, 2011 GEIGER & LORIA REPORTING SERVICE - 1-800-222-4577 Rider G Rental Guarantee • This rider is attached to and forms a part of the lease beginning April 1, 2006 between Timothy J. Hogg, the Landlord, and Monica Hand & Joshua Traxler, the Tenant(s). This document is by and between Timothy J. Hogg, Landlord and Marlin T. Fetterolf, an individual and grandfather of tenant, who will serve as guarantor of said lease. Guarantor, in consideration for the rents and covenants of said lease, pledges personally owned cash and assets of Guarantor to be used by Landlord to satisfy lease in the event of default by Tenant under the terms and conditions of this lease. Guarantor realizes that Landlord is relying upon Guarantor's guarantee of lease in an agreement that landlord would not otherwise make. Date ? r,• (? n Guarantor Landlord n r s? ?i a i ez 0 Ul 4 0 a z 0 LL 0 w u L} r IL 0 Q L w z y • 00 ?°Uz • o =: ?I ^ ? of ?. ? ?' ? ? i ,_ ?' . ?".? ?' .. _ ' 3 .L. (i _ '? J`^• ? ` J .: e ? . ?? - , ..; . ? - c j ,-.? ? ?v C..7 N David J. Lanza Attorney I.D. #55782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendant MARLIN T. FETTEROLF, Plaintiff VS. TIM HOGG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 321 Civil 2008 PRAECIPE TO ATTACH VERIFICATION To the Prothonotary: Please attach the verification page attached hereto to Defendant's Answer to New Matter in the above-referenced matter. Respectfully submitted, CALDWELL & KEARNS Dated: By: _-A& David J. Lanza Attorney I.D. #55782 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorney for Defendant VERIFICATION The undersigned hereby verifies that the facts set forth in the foregoing document are true and correct to the best of his/her knowledge, information and belief and further states that false statements herein are made subject to the penalties of 18 Pa.C.S § 4904 relating to unsworn falsification to authorities. Dated: `7 2 Tim Hogg so CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the within document this 2 y?ay of April 2008, on the following by depositing a true and correct copy of the same in the U.S. Mails at Harrisburg, Pennsylvania, postage prepaid, addressed to: John A. Davidson, Esquire 208 North Third St., Suite 130 Harrisburg, PA 17101-1513 CALDWELL & KEARNS By- /7? - C. c -TI fV `i `4 -t ( i N ? MARLIN T. FETTEROLF, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS NO. 321 CIVIL 2008 TIMOTHY HOGG, Defendant ORDER OF COURT AND NOW, this 24th day of April, 2008, the parties are given until Friday, May 2nd, 2008, to file briefs in support of their respective posi By Edward E. Guido, J. Zjohn A. Davidson, Esquire 208 North Third Street, Suite 130 Harrisburg, PA 17101-1513 For Plaintiff Z David J. Lanza, Esquire 3631 North Front Street Harrisburg, PA 17110 :mlc I .c/% 1Dg 1?1??:???., ??? ??? a,? ,,? .? j;?? y??? ?`t??l? MARLIN T. FETTEROLF, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA VS NO. 321 CIVIL 2008 TIMOTHY HOGG, Defendant FINDINGS OF FACT 1. Complaint was filed against Defendant on July 26th 2007, listing his address as 119 South Third Street, Lemoyne, PA 17043. 2. Service of the complaint was effectuated by the constable at one of the Defendant's other properties on August 10, 2007. 3. The Defendant indicated to the Magisterial District Judge that he intended to defend. He did not tell the Magisterial District Judge that the address of 119 South Third Street, Lemoyne, Pennsylvania was incorrect. 4. The hearing was scheduled on the matter for December 3, 2007. The Defendant acknowledges that he was informed of the time and place of said hearing. 5. The Defendant did not appear at the hearing and a default judgment was entered against him. 6. The notice of judgment was mailed to the address listed in the complaint on December 4, 2007. 7. The the notice of judgment was returned to the Magisterial District Judge as moved left no forwarding address. 8. The Defendant worked out of 119 South Third Street, Lemoyne through another entity as a pricipal known as Hogg Properties, LLC. He moved from that premises sometime in the summer of 2007. -MARLIN T. FETTEROLF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. TIMOTHY HOGG NO. 321 CIVIL 2008 CIVIL ACTION - LAW IN RE: DEFENDANT'S PETITION TO STRIKE JUDGMENT BEFORE GUIDO, J. ORDER OF COURT AND NOW, this 12TH day of MAY, 2008, after hearing and having reviewed the briefs filed by the parties, the Defendant's Petition to Strike Judgment is DENIED. -1 John A. Davidson, Esquire 208 North Third Street, Suite 130 Harrisburg, Pa. 17101-1513 ZDavid J. Lanza, Esquire 3631 North Front Street Harrisburg, Pa. 17110 Edward E. Guido, J. Court Administrator _ eo f :sld a I'F.s ,if ??-T q VIN'V/\IAS N3d I I: I I NV h I AN BQOZ AWONO-HLGdd -3U ?O David J. Lanza Attorney I.D. #55782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendants MARLIN T. FETTEROLF, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA vs. NO. 321 Civil 2008 TIM HOGG, Defendant NOTICE OF APPEAL Notice is hereby given that Defendant Tim Hogg, hereby appeals to the Superior Court of Pennsylvania from the Order entered in this matter on the 12th day of May 2008. This Order has been entered in the docket as evidenced by the attached copy of the docket entry. Respectfully submitted, CALDWELL & KEARNS By: Dated: C Wo I David J. Lanza Attorney I.D. #55782 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 14-032/134004 FYS511 Cumberland County Prothonotary's Office Page 1 Civil Case Print 2008-00321 FETTEROLF MARLIN T (vs) HOGG TIMOTHY Reference No..: Filed........: 1/15/2008 Case Type;. . . . .: JUDGMENT - DJ Time...... 3:03 Judgment.... : 1915.25 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: Higher Crt 2.: ******************************************************************************** General Index Attorney Info FETTEROLF MARLIN T PLAINTIFF DAVIDSON JOHN A 90 SALEM CHURCH RD LOT #525 MECHANICSBURG PA 17050 HOGG TIMOTHY DEFENDANT LANZA DAVID J 119 S THIRD ST LEMOYNE PA 17043 ******************************************************************************** Judgment Index Amount Date Desc HOGG TIMOTHY 1,915.25 1/15/2008 TRANSCRIPT JUDGMENT ******************************************************************************** * Date Entries ******************************************************************************** FIRST ENTRY - - - - - - 1/15/2008 JUDGMENT FROM DISTRICT JUSTICE IN THE AMOUNT OF $1915.25 DATED DECEMBER 3, 2007 BY JOHN A DAVIDSON ESQ ------------------------------------------------------------------- 1/15/2008 NOTICE MAILED TO DEFENDANT ------------------------------------------------ ------------------- 1 22/2008 DEFENDANT'S PETITION TO STRIKE JUDGEMENT - BY DAVID J LANZA ATTY FOR DEFT ----- - ------- -- --- ------ -------- -- ------ --------- - - 1/22/2008 ORDER-- - 1/22/08 - IN - RE: - DEFT'S - PETITION - TO - STRIKE - JUDGEMENT - - - A - - - - - RULE IS ISSUED UPON THE PLFF TO SHOW CAUSE IF ANY HE HAS WHY THE RELIEF REQUESTED IN DEFT'S PETITION SHOULD NOT BE GRANTED - RULE RETURNABLE 20 DAYS AFTER SERVICE - ALL PROCEEDINGS TO STAY IN THE MEANTIME - BY EDWARD E GUIDO J - COPIES MAILED 1/23/08 ---------------------------------------------------------- 2/08/2008 ANSWER TO PETITION TO STRIKE JUDGMENT - BY JOHN A DAVIDSON ATTY FOR PLFF ------------------------------------------------- 3/07/2008 ORDER OF COURT - 3/7/08 IN RE: DEFT'S PETITION TO STRIKE JUDGEMENT - SCHEDULED FOR 4 24/08 AT 10:30 AM IN CR3 CUMBERLAND COUNTY COURTHOUSE - BY E WARD E GUIDO J - COPIES MAILED 3/7/08 ------------------------------------------------------ ------------- 4 16/2008 DEFENDANT'S ANSWER TO PLFF'S NEW MATTER TO PETITION TO STRIKE JUDGMENT - BY DAVID J LANZA ATTY FOR DEFT ----------------------------------------------- -------------------- 4 18/2008 PRAECIPE TO FILE DEPOSITION - OF TIMOTHY HOGG - BY DAVID J LANZA ATTY FOR PLFF ------------------------------------------------------------------- 4/18/2008 DEPOSITION OF TIMOTHY HOGG/DEFT - 4/14/08 ------------------------------------- ------------------------------ 4 28/2008 PRAECIPE TO ATTACH VERIFICATION - BY DAVID J LANZA ATTY FOR DEFT ------------------------------------------------------------------- 4/29/2008 FORDE ILERBRIEFSUIIN SUPPORTOOF PARTIES ARE GIVEN POSITIONS I- BY2EDWARD E GUIDO J - COPIES MAILED 4/2908 ----------------------------------------------- 5/14/2008 ORDER OF COURT - 4/12/08 IN RE: DEFT'S PETITION TO STRIKE JUDGMENT - AFTER HEARING AND HAVING REVIEWED THE BRIEFS FILED BY THE PARTIES THE DEFTS PETITION TO STRIKE JUDGMENT IS DENIED - BY EDWARD E GUIDO J - COPIES MAILED 5/14/08 - - - - - - - - - - - - - - - - LAST ENTRY - - - - - - - - _ - _ - ******************************************************************************** * Escrow Information * Fees & Debits Beg Bal Pymts/Adj End Bal PYS511 Cumberland County Prothonotary's Office Page 2 A. Civil Case Print 2008-00321 FETTEROLF MARLIN T (vs) HOGG TIMOTHY Reference No..: Case Type.....: JUDGMENT - DJ Filed........: 1/15/2008 Judgment.,.., 1915.25 Judge Assigned: GUIDO EDWARD E Time.........: Execution Date 3:03 0/00/0000 Disposed Desc.: Jury Trial.... ------------ Case Comments -- --------- -- Disposed Date. Hi her Crt 1 0/00/0000 ***************************************************** g .: Higher ********************* JDMT/DJ TAX ON JDMT DJ 14.00 .25 14.00 25 .00 00 SATISFACTION AUTOMATION FEE 8.00 . 8.00 . .00 ----- 5.00 ---------- 5.00 --- .00 27.25 ------ --- 27.25 --------- .00 ******************************************************************************** * End of Case Information ******************************************************************************** O? E %^^^.OPV FROM Ri-EG-0- Rd 4n Tes ftW wtwid,?jIY?I?? -. #??- to set my hang so d a' Cow at Cad", Pa. k 42M "Hie David J. Lanza Attorney I.D. #55782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendant MARLIN T. FETTEROLF, Plaintiff vs. TIM HOGG, Defendant NO. 321 Civil 2008 ADDITIONAL CERTIFICAT OF SERVICE AND NOW, this =day of June, 2008, I hereby certify that I have served a copy of the Notice of Appeal on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: Honorable Edward E. Guido Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 By: IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CALD & KF.ARNR CERTIFICATE OF URVICE AND NOW, this day of June 2008, I hereby certify that I have served a copy of the within Notice of Appeal on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, 4ddressed to: John A. Davidson, Esquire 208 North Third St., Suite 130 Harrisburg, PA 17101 ?!1513 CALDWELL & KEARNS By: (V 6, COMMONWEALTH OF PENNSYLVANIA e Superior Court of Pennsylvania Karen Reid BrambleM Esq. Middle District 100 Pine Street. Suite 400 Prothonotary Harrisbure. PA 17101 James D. McCullough, Esq. June 12, 2008 717-772-1294 Deputy Prothonotary www.supenor.court.state.pa.us Mr. Curtis R. Long Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: 1000 MDA 2008 Marlin T. Fetterolf V. Tim Hogg, Appellant Dear Mr. Long: Enclosed please find a copy of the docket for the above appeal that was recently filed in the Superior Court. Kindly review the information on this docket and notify this office in writing if you believe any corrections are required. Appellant's counsel is also being sent a Docketing Statement, pursuant to Pa.R.A.P. 3517, for completion and filing. Please note that Superior Court Dockets are available on the Internet at the Web site address printed at the top of this page. Thank you. Very truly yours, TP Enclosure Karen Reid Bramblett, Esq. Prothonotary 10:20 AA Appeal Docket Sheet Docket Number: 1000 MDA 2008 Superior Court of Pennsylvania SOL Page 1 of 2 June 12, 2008 Marlin T. Fetterolf V. Tim Hogg, Appellant Initiating Document: Notice of Appeal Case Status: Active Case Processing Status: June 10, 2008 Journal Number: Case Category: Civil Awaiting Original Record CaseType: Civil Action Law Consolidated Docket Nos.: Related Docket Nos.: SCHEDULED EVENT Next Event Type: Receive Docketing Statement Next Event Due Date: June 26, 2008 Next Event Type: Original Record Received Next Event Due Date: August 11, 2008 COUNSEL INFORMATION Appellant Hogg, Tim Pro Se: Appoint Counsel Status: IFP Status: No Appellant Attorney Information: Attorney: Lanza, David J. Bar No.: 55782 Law Firm: Address: 3631 North Front Street Harrisburg, PA 17110 Phone No.: (717)730-3775 Fax No.: (717)232-2766 Receive Mail: Yes E-Mail Address: dlanza@caldwellkearns.com Receive E-Mail: Yes Appellee Fetterolf, Marlin T. Pro Se: Appoint Counsel Status: IFP Status: Appellee Attorney Information: Attorney: Davidson, John Andrew Bar No.: 200503 Law Firm: Address: 208 N 3rd Street Suite 130 Harrisburg, PA 17101 Phone No.: (717)238-4043 Fax No.: (717)238-4198 Receive Mail: Yes E-Mail Address: jad@johnadavidsonesq.com Receive E-Mail: Yes 6/12/2008 3023 10:20 A.M. Appeal Docket Sheet Docket Number: 1000 MDA 2008 Paqe 2 of 2 June 12, 2008 Superior Court of Pennsylvania Z40A FEE INFORMATION Paid Fee Date Fee Name Fee Amt Amount Receipt Number 6/12/08 Notice of Appeal 60.00 60.00 2008SPRMD000486 TRIAL COURT/AGENCY 114I-UKmA 1 FUN Court Below: Cumberland County Court of Common Pleas County: Cumberland Division: Civil Date of Order Appealed From: May 12, 2008 Judicial District: 9 Date Documents Received: June 12, 2008 Date Notice of Appeal Filed: June 10, 2008 Order Type: Order Entered OTN: Judge: Guido, Edward E. Lower Court Docket No.: 321 Civil 2008 Judge ORIGINAL RECORD CONTENTS Original Record Item Filed Date Content/Description Date of Remand of Record: BRIEFS DOCKET ENTRIES Filed Date Docket Entry/Document Name Party Type Filed By June 10, 2008 Notice of Appeal Filed Appellant Hogg, Tim June 12, 2008 Docketing Statement Exited (Civil) Middle District Filing Office 6/12/2008 3023 D mss =U rn C-) r-n O ,TO& MARLIN T. FETTEROLF V. . TIM HOGG IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 321 CIVIL 2008 CIVIL ACTION - LAW ORDER OF COURT AND NOW, this 18TH day of JULY, 2008, pursuant to Pa.R.C.P. 1925, Defendant Tim Hogg shall file of record and serve on this judge, within twenty-one (21) days of this date, a concise statement of errors complained of on appeal. Any issue not properly included in the concise statement timely filed and served pursuant to Rule 1925(b) shall be deemed waived. By the Court, David J. Lanza, Esquire 3631 North Front Street Harrisburg, Pa. 17110 Court Reporter Edward E. Guido, J. :sld Zn kffitf Slow 53.1©I ? J ?- <17 4 C I'll ? .g m 1 z 0 - go?irlt David J. Lanza Attorney I.D. #55782 CALDWELL & KEARNS 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Attorneys for Defendant MARLIN T. FETTEROLF, Plaintiff VS. TIM HOGG, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 321 Civil 2008 CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL AND NOW comes Defendant-Appellants, Timothy & Jana Hogg by and through their attorneys, Caldwell & Kearns, and files the within Concise Statement of Matters Complained of pursuant to Pa.R.A.P. 1925(b) and the Order of the Honorable Edward E. Guido, dated May 12, 2008, and set forth the following for consideration on appeal to the Superior Court of Pennsylvania. 1. The above-captioned matter was disposed of by the Order of the Honorable Edward E. Guido, dated May 12, 2008, which granted certain relief sought by Plaintiff and denied relief sought by Defendant; said Order is a "final" appealable Order; 2. The matters complained of by Defendants/Appellants on appeal are as follows. The aforesaid errors are set forth in general terms pursuant to Pa. R.A.P. 1925 (b) (4) (vi): a. The Honorable Court erred in failing to find that the District Justice Court mailed the Notice of Judgment to an incorrect address despite the return of said mail by the Post Office to the District Justice. b. The Court's conclusion contradicts the weight of evidence regarding the Defendant's address and the proper service address. C. The Court's conclusion failed properly to interpret Pennsylvania Law regarding the validity of judgments despite service upon the Defendant at an incorrect address. d. The Court erred in failing to allow evidence of a meritorious defense even though Defendant sought, in its pleadings, both to strike and open the Judgment. e. The Court failed to consider this case in accordance with the terms of Pa.R.C.P. 206. f. The Court improperly interpreted the significance of the Constable's Return of Service. g. The Court's ruling improperly places the burden upon Defendant to correct errors in the Court system despite the existence of a proper Return of Service from the Constable. h. The Court failed to distinguish between addresses of an individual and that of an LLC. i. The Court failed to interpret properly Pa.R.C.P. 440. The Court failed to apply the proper standards for opening or striking a judgment. Respectfully submitted, CALDWELL A7 RKS By: David I Lanza Attorney I.D. #55782 3631 North Front Street Harrisburg, PA 17110 (717) 232-7661 Dated: $ 14-032/136383 CERTIFICATE OF SERVICE AND NOW, this - day of August 2008, I hereby certify that I have served a copy of the within Statement of Matters Complained Of on the following by depositing a true and correct copy of the same in the U.S. Mail at Harrisburg, Pennsylvania, postage prepaid, addressed to: John A. Davidson, Esquire 208 North Third St., Suite 130 Harrisburg, PA 17101-1513 The Honorable Edward E. Guido (via hand delivery) Cumberland County Court of Common Pleas Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 CALDWELL & KEARNS By: t r- Q G C-0 CD ? r. r . MARLIN T. FETTEROLF, IN THE COURT OF COMMON PLEAS OF Plaintiff CUMBERLAND COUNTY, PENNSYLVANIA V. TIMOTHY HOGG, NO. 321 CIVIL 2008 Defendant CIVIL ACTION -LAW IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., September a ?- , 2008 On December 3, 2007 a Magisterial District Judge awarded plaintiff a default judgment against the defendant in the amount of $1915.25. On January 15, 2008 plaintiff entered the judgment on record with the Prothonotary of Cumberland County. Defendant filed a petition to strike the judgment on January 22, 2008. The petition alleged that the MDJ failed to notify the defendant of the entry of the default judgment. Based upon the plaintiff's response we conducted an evidentiary hearing on April 24, 2008. On May 12, 2008, after reviewing the briefs filed by the parties, we denied defendant's request to strike the judgment. He has filed this timely appeal in which he alleges that we erred in denying his motion. On July 26, 2007 plaintiff commenced this action by filing a complaint with Magisterial District Judge Thomas Placey. The complaint listed the defendant's address as 119 South Third Street, Lemoyne, Pennsylvania. The building located at that address is owned by the defendant.' It is titled in the name of Hogg Properties, LLC, a limited liability company owned solely by the defendant and his wife. The defendant maintained an office at that address through the summer of 2007. At least one local telephone ' The defendant makes his living as a landlord. He owns several buildings titled in various entities. He uses numerous addresses for different purposes. NO. 0321 CIVIL 2008 directory carried a listing for the defendant at that address. Furthermore, in June of 2007 he gave it as his contact address to another Magisterial District Judge in a separate action naming him as a defendant.2 On August 10, 2007 the complaint was personally served upon the defendant at another building he owned in Lemoyne. He immediately contacted the MDJ's office to advise of his intention to defend. He was told that the hearing was rescheduled for December 3, 2007 at 1:15 p.m. He did not mention any problem with his address as listed in the complaint. Consequently, notice of the rescheduled hearing was sent to that address.3 The defendant failed to attend the December 3, 2007 hearing resulting in a default judgment being entered against him. Notice of the judgment was mailed on that same day to the address listed in the complaint. It was returned to the MDJ's office marked "MOVED LEFT NO ADDRESS, UNABLE TO FORWARD." On January 15, 2008 plaintiff recorded the judgment with the Prothonotary of Cumberland County. Defendant's "Petition to Strike Judgment" was filed on January 22, 2008. "A petition to strike a default judgment and a petition to open a default judgment request distinct remedies and generally are not interchangeable." Erie Insurance Co. v. Bullard, 839 A.2d 383, 386 (Pa.Super. 2003). The defendant's petition is clearly labeled a motion to strike. However, at the evidentiary hearing he began to explore the merits of the case. In order to clarify exactly what we were being asked to decide, we had the following exchange with counsel: z See Plaintiffs Exhibit 1. 3 The Defendant testified that he did not receive anything regarding this case at the 119 South Third Street address. We found his testimony in that regard to be less than credible. We note that he presented a copy of the envelope containing the notice of judgment being returned to the MDJ's office as being undeliverable. No such evidence was presented with regard to the notice of the hearing. 2 NO. 0321 CIVIL 2008 THE COURT: Where are we going with that? What's before me is whether or not your client got appropriate notice. MR. LANZA: Yes, Your Honor. THE COURT: That's - let's get to the point. MR. LANZA: All right. Well, then, we'll move to - I think also we have to establish that there's a meritorious defense at this point... . THE COURT: On a motion to open I think you'd have to establish a meritorious defense. Correct me if I'm wrong, on a motion to strike, you're relying on the procedural defense? MR. LANZA: That's correct, Your Honor. And there's been no real claim anyway. We don't know what the claim is. That's really the point just to eliminate that issue, Your Honor. All right. THE COURT: Well, do you agree? I don't have a motion to open the judgment? MR. LANZA: I agree, Your Honor. THE COURT: So you're - you're standing on the procedural aspects. MR. LANZA: All right. Well, then I'll move on to the exhibits from the petition itself.4. .. The law applicable to this matter is well settled. The Superior Court summarized it as follows: With regard to a motion to strike a default judgment, "[a] court may only look at the facts of record at the time judgment was entered to decide if the record supports the judgment. A petition to strike does not involve the discretion of the court." Erie Ins. Co., 839 A.2d at 386 (quoting Triangle Printing Co. v. Image Quest, 730, A.2d 998, 999 (Pa.Super. 1999)). "A petition to strike a judgment will not be granted unless a fatal defect in the judgment appears on the fact of the record. Matters outside of the record will not be considered, and if the record is self-sustaining, the judgment will not be stricken." Cargitlada v. Binks Mfg. Co., 837 A.2d 547, 549-50 (Pa.Super. 2003). Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269, 1280 (Pa. Super. 2005). 4 Transcript of April 24, 2008, Proceedings p. 8. NO. 0321 CIVIL 2008 Applying that standard to the case at bar, we were satisfied that no fatal defects appeared on the face of the records The defendant's only complaint with the judgment is that he did not get notice of its entry in time to file a timely appeal to this Court. Under these circumstances the correct remedy would be to grant an allowance of an appeal nunc pro tunc. As a general matter, a Trial Court may grant an appeal nunc pro tunc when a delay in filing [an appeal] is caused by extraordinary circumstances involving fraud or some breakdown in the court's operation through a default of its officers. Where an appeal is not timely because of non-negligent circumstances, either as they relate to appellant or his counsel, and the appeal is filed within a short time after the appellant or his counsel learns of and has an opportunity to address the untimeliness, and the time period which elapses is of very short duration, and appellee is not prejudiced by the delay, the court may allow an appeal nunc pro tunc. In re: M.SK, 936 A.2d 103, 105 (Pa.Super. 2007) citations omitted. We were satisfied that there was neither a breakdown in the Court's operation nor non-negligent circumstances which precluded the defendant from filing a timely appeal. Defendant argued that his failure to receive notice of the entry of the default judgment was the result of a breakdown in the court's operation. He contended that the MDFs office personnel were obligated to search through the file for an alternative address. We disagreed. The defendant was properly served. He made contact with the s The facts of this case are similar to those in Triangle Printing Co. v. Image Quest, 730 A.2d 998. (Pa. Super. 1999). The defendant in that case moved to strike a District Justice judgment entered with the Prothonotary. The motion alleged that the defendant had not received notice of the entry of judgment from the District Justice. As the Superior Court noted: The Rules require service, to be sure, but no rule requires service to be memorialized on the transcript. District Justice Rule 402D sets forth the procedure for a judgment to be entered in the county office; filing shall be of a certified "copy of the record of the proceedings containing the judgment," namely, the transcript. The Rule does not prescribe what "proceedings" need be on that transcript, beyond the entry of judgment and the passage of 30 days; specifically, it does not require the copy of the record to include anything about compliance with Rule 324. As the only requirements of the Rule are present, there is no violation of the Rule, and no defect or irregularity appears on the face of the district justice transcript sufficient to preclude entry of judgment. 730 A.2d 998 at 1000. 4 NO. 0321 CIVIL 2008 MDJ's office and received notice of the rescheduled hearing. Once service was properly made it was incumbent upon the defendant to keep the Court apprised of his correct address. Since he did not, his failure to receive notice of the entry of the default judgment was not attributable to a breakdown of the court's operation. Failure to inform the Court of his correct address was not the only error committed by the defendant. He admitted that he received actual notice of the December hearing. He testified that he lost track of the date because his Blackberry crashed. Yet he made no effort to contact the MDJ's office after the crash. Furthermore, more than 4 months elapsed from the time he was notified of the rescheduled hearing date until he took any further action in this case. While the above circumstances prevented the defendant from filing a timely appeal, we could not find that they were non-negligent. Therefore, we refused to grant him relief. `? 14AW40 DATE John A. Davidson, Esquire 208 North Third Street, Suite 130 Harrisburg, Pa. 17101-1513 ?David J. Lanza, Esquire 3631 North Front Street Harrisburg, Pa. 17110 :sld co Z F-S rrc:a t 9fz3 Edward E. Guido, J. r-? tm:s w x CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Marlin T. Fetterolf VS. Timothy Hogg 2008-321 Civil 1000 MDA 2008 The documents comprising the record have been numbered from No.1 to 121, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 09/26/2008. Curtis . Long, Prothonotary Regina Lebo An additional copy of this certificate is enclosed. Please sign and date cony, thereby acknowledging receipt of this record. Date Signature & Title Commonwealth of Pennsylvania County of Cumberland ss: 1, -f-1-r+J-Q R. long , Prothonotary of the Court of Common Pleas in and for said County, do hereby certify that the foregoing is a full, true and correct copy of the whole record of the case therein stated, wherein Marlin T. Fetterolf Plaintiff, and Timothy Hogg Defendant , as the same remains of record before the said Court at No. 2008-311 of Civil Term, A. D. 19 . In TESTIMONY WHEREOF, 1 have hereunto set my hand and affixed the seal, of said Court this 26th day of Santemher ZA. D., *&2Q$. Prothonotary 1, Edgar R Ba3rlM President Judge of the "Ninth Judicial District, composed of the County of Cumberland, do certify that 0,Xtus R. Long , by whom the annexed record, certificate and attestation were made and given, and who, in his own proper handwriting, thereunto subscribed his name and affixed the seal of the Court of Common Pleas of said County, was, at the time of so doing, and now is Prothonotary in and for said County of na^asri ana in the Commonwealth of Pennsylvania, duly commissioned and qualifie of whose acts as such full faith and credit are and ought to be given as well in Courts of judicat a as elsew e , e said record, certificate and attestation are in due form of law and made y e prop ffic President Ju e Commonwealth of Pennsylvania County of Cumberland ss: 1, Curtis R. Lmq Prothonotary bf the Court of Common Pleas in and for the said County, do certify that the Honorable F.Jgar S_ BaVI,y by whom the foregoing attestation was made, and who has thereunto subscribed his name, was, at the time of making thereof, and still is President Judge of the Court of Common Pleas, Orphan' Court and Court of Quarter Sessions of the Peace in and for said County, duly Commissioned and qualified; to all whose acts as such full faith and credit are and ought to be given, as well in Courts of judicature as elsewhere. IN TESTIMONY WHEREOF, I have hereunto set in hand and affixed the seal of said Court this day ?f _?ptanbe A.D. ?MC20B 72145 Among the Records and Proceedings enrolled in the court of Common Pleas in and for the county of 188g-32 p, O nberland in the Commonwealth of Pennsylvania to No. 1 ?iyil Term, 19 is contained the following: COPY OF Appearance DOCKET ENTRY Marlin T. Fetterolf vs. Timothy Hogg **See certified copy of the docket** LO N r r ? a ?= ? P 0 rn 0 d Q V a 0 w • ? a W a. b w ed V o 1 ° 0 t w r O 0. PYS511 Cumberland County Prothonotary's Office Civil Case Print 2008-00321 FETTEROLF MARLIN T (vs) HOGG TIMOTHY Reference No..: Case Type.....: JUDGMENT - DJ Judgment..... 1915.25 Judge Assigned: GUIDO EDWARD E Disposed Desc.: ------------ Case Comments ------------- Page 1 Filed......... 1/15/2008 Time. .... . 3.03 Execution Date 0/00/0000 Jury Trial.... Disposed Date. 0/00/0000 Higher Crt 1.: 1000MD 2008 Higher Crt 2.: ******************************************************************************** General Index Attorney Info FETTEROLF MARLIN T PLAINTIFF DAVIDSON JOHN A 90 SALEM CHURCH RD LOT #525 MECHANICSBURG PA 17050 HOGG TIMOTHY DEFENDANT LANZA DAVID J 119 S THIRD ST LEMOYNE PA 17043 ******************************************************************************** Judgment Index Amount Date Desc HOGG TIMOTHY 1,915.25 1/15/2008 TRANSCRIPT JUDGMENT ******************************************************************************** * Date Entries ******************************************************************************** - - - - - - - - - FIRST ENTRY - - - - - - - - - - - - - - 1/15/2008 JUDGMENT FROM DISTRICT JUSTICE IN THE AMOUNT OF $1915.25 DATED DECEMBER 3, 2007 BY JOHN A DAVIDSON ESQ ------------------------------------------------------------------- 1/15/2008 NOTICE MAILED TO DEFENDANT -------------------------------------------------------------- 3 1/22/2008 FDEF OREDEFTT'S-PETITION TO STRIKE JUDGEMENT - BY DAVID J LANZA-ATTY --- ------------------------------------------------------------------- IF I ANY HEJUDGEMENT 1/22/2008 ORDER B UPON R THE DPLFF S TO PETITION SHOW O CAUSE STRIKE HAS N RULE IS I WHY THE RELIEF REQUESTED IN DEFT'S PETITION SHOULD NOT BE GRANTED - RULE RETURNABLE 20 DAYS AFTER SERVICE - ALL PROCEEDINGS O STAY IN THE MEANTIME - BY EDWARD E GUIDO J - COPIES MAILED 1/23//08 ------------------------------------------------------------------- 2/08/2008 ANSWER TO PETITION TO STRIKE JUDGMENT - BY JOHN A DAVIDSON ATTY FOR PLFF ------------------------------------------------------------------- 3/07/2008 ORDER OF COURT - 33L7/08 IN RE: DEFT'S PETITION TO STRIKE JUDGEMENT COURTHOUSED-FBY EDZZW4 08EAGUIDO3J - COPIES3MAILEDR3 7/080UNTY ------------------------------------------------------------------- 4/16/2008 DGNNDDAANNT'SBYNSWER TO PLANZASANEW MATTER DEFTTO PETITION TO STRIKE FOR ------------------------------------------------------------------- 4/18/2008 ATTYCFOR PEFFILE DEPOSITION OF TIMOTHY HOGG - BY DAVID J LANZA ------------------------------------------------------------------- 4/18/2008 DEPOSITION OF TIMOTHY HOGG/DEFT - 4/14/08 ------------------------------------------------------------------- - - ?t?lf 4/28/2008 PRAECIPE TO ATTACH VERIFICATION - BY DAVID J LANZA-ATTY-/FOR-DEFT ??_ ? 4/29/2008 ORDER R BRIEFS COURT IN 4/24/08 SUPPORT OF THEIR PARTIES RESPECTIVE POSITIONSI - BY2EDWARD E GUIDO J - COPIES MAILED 4/29/08 ------------------------------------------------------------------- 5/14/2008 ORDER OF COURT -_4112/08 IN RE: DEFT'S PETITION TO-STRIKE JUDGMENT - AFTER HEARING AND HAVING REVIEWED THE BRIEFS FILED BY THE PARTIES THE DEFTS PETITION TO STRI JUDGMENT IS DENIED - BY EDWARD E GUIDO J - COPIES MAILED 54/08 ------------------------------------------------------------------- 7a 6/10/2008 NOTICE OF APPEAL TO SUPERIOR COURT - BY DAVID J LANZA ATTY FOR DEFTS ------------------------------------------------------------------- 7 3_75" 6/13/2008 SUPERIOR COURT OF PA NOTICE OF APPEAL DOCKETING TO # 1000 MDA 2008 PYS511 Cumberland County Prothonotary's Office Page Civil Case Print 2008-00321 FETTEROLF MARLIN T (vs) HOGG TIMOTHY Reference No... Filed......... 1/15/2008 Case Ty e.....: JUDGMENT - DJ Time...... . 3:03 Judgmen ... 1915.25 Execution Date 0/00/0000 Judge Assigned: GUIDO EDWARD E Jury Trial.... Disposed Desc.: Disposed Date. 0/00/0000 ------------ Case Comments ------------- Higher Crt 1.: 1000MDA2008 Higher Crt 2.: ------------------------------------------------------------------- ](?, 7/21/2008 ORDER OF COURT - 7L18/08 - PURSUANT TO PA RCP 1925 DEFT TIM HOGG SHALL FILE OF RECOAND SERVE ON THIS JUDGE WITHIN 21 DAYS OF THIS DATE A CONCISE STATEMENT OF ERRORS COMPLAINED OF ON APPEAL - ANY ISSUE NOT PROPERLY INCLUDED IN THE CONCISE STATEMENT TIMELY FILED AND SERVED PURSUANT TO RULE 1925B SIJALL BE DEEMED WAIVED - BY EDWARED E GUIDO J - COPIES MAILED 7/21/08 ------------------------------------------------------------------- 8/08/2008 CCONCISESSTATEMENT OF MATTERS COMPLAINED OF ON APPEAL BY DAVID J LANZA ------------------------------------------------------------------- 8/27/2008 TRANSCRIPT OF PROCEEDINGS - BY EDWARD E GUIDO J --------------------------------------------------------------------TO PA R llto_1 9/23/2008 EIN RE DWARD EIGUIDOPJR- COPIES MAILED 9/2 3 08 DATED 9/22/08 - BY ------------------------------------------------------------------- 9/26/2008 NOTICE OF DOCKET ENTRIES MAILED TO DAVID J LANZA ESQ AND JOHN A DAVIDSON ESQ - - - - - - - - - - LAST ENTRY - - - - - - - - - - - - - - * Escrow Information * Fees & Debits Bed Bal Pmts/Add End Bal JDMT/DJ 14.00 14.00 .00 TAX ON JDMT/DJ .25 .25 .00 SATISFACTION 8.00 8.00 .00 AUTOMATION FEE 5.00 5.00 .00 APPEAL HIGH CT 48.00 48.00 .00 ------------------------ ------------ 75.25 75.25 .00 ******************************************************************************** * End of Case Information ******************************************************************************** TRUE COP'S Fa In Testimony whereof, I h?, = unto sot my hand and the seal of said Court at Carlisle, Pa. This ....a .. _ day of. ,.r?! :....., ,......?:...::f ............ Prothonotary Karen Reid Bramblett, Esq. buperior Court of Veunoprbania 100 Pine Street, Suite 400 Prothonotary Middle District Harrisburg, PA 17101 Milan K. Mrkobrad, Esq. (717) 712-1294 Deputy Prothonotary www.superioccourt.state.pa.us CERTIFICATE OF REMITTAUREMAND OF RECORD TO: Mr. Long C-) Prothonotary , v3 j rY t RE: Fetterolf, M. v. Hogg, T. 1000 MDA 2008 _ . Intermediate Court Docket No: s r Trial Court: Cumberland County Court of Common Pleas 53 Trial Court Docket No: 321 Civil 2008 . Annexed hereto pursuant to Pennsylvania Rules of Appellate Procedure 2571 and 2172 is the entire record for the above matter. Original Record contents: Item Filed Date Description Part September 29, 2008 1 Remand/Remittal Date: 09/11/2009 ORIGINAL RECIPIENT ONLY - Please acknowledge receipt by signing, dating and returning the enclosed copy of this certificate to our office. Copy recipients (noted below need not acknowledge receipt. Re ectfully, /aas Enclosure cc: John Andrew Davidson, Esq. The Honorable Edward Guido, Judge David J. Lanza, Esq. Milan K. Mrko rad, Esq. Deputy Prothonotary J. A14043/09 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 6537 MARLIN T. FETTEROLF, IN THE SUPERIOR COURT' OF PENNSYLVANIA Appellee V. TIM HOGG, NO. 1000 MDA 2008 Appellant Appeal from the Order entered May 12, 2008 In the Court of Common Pleas of Cumberland County Civil Division at No. 321 Civil 2008 BEFORE: ORIE MELVIN, GANTMAN AND CLELAND, JJ. MEMORANDUM: FILED: August 4, 2009 Appellant, Tim Hogg (Hogg), appeals the order of the trial Ourt denying his Petition to Strike Judgment (Petition to Strike). Because there are no fatal defects or irregularities on the face of the record, we affirm? On December 3, 2007, Appellee, Marlin T. Fetterolf (Fetterolf),', (took default judgment against Hogg in a Magisterial District Court proceeding when Hogg, although properly served by hand-delivery of the complaint and I although notifying the Magisterial District Court of his intention to dq?end, failed to appear at the hearing. On January 15, 2008, Fetterolf entered the judgment in the Cumberland County Court of Common Pleas. On January 22, 2008, Hogg filed his Petition to Strike alleging that, following the default judgment, the Magisterial District Court sent the required notice of judgment 1. A14043/09 to him at an incorrect address.' Petition to Strike at ¶¶ 2, 3. See Pa.R.C.P.M.D.J. 324 (Notice of Judgment or Dismissal and the Right to Appeal).2 As a result, Hogg maintains he did not learn of the default judgment until after its entry at the common pleas level. Id. at ¶ 7. He, thus, complains that mailing the notice of judgment to the wrong address deprived him of his right to appeal the default judgment.3 Hogg points out the complaint identified the same incorrect address4 for him, but I,that, because a constable personally served the complaint on him at a diffi rent location, the Magisterial District Court knew of his correct address yet failed to use it. On May 12, 2008, the trial court denied his Petition to Strike because "no fatal defects appeared on the face of the record." Trial Court Order, 9/22/08, at 4. Although not part of the record at the time the judgment was entered with the prothonotary, the post office returned the letter marked "Retu to Sender Moved Left No Address." Petition to Strike at $ 2 and atta hed Exhibit B. 2 The rule requires the court to promptly give or mail written notice of judgment to the defendant. The notice must contain "notice of the right of the parties to appeal, the time within which the appeal must be taken, and that the appeal is to the court of common pleas." Pa.R.C.P.M.D.J. 324B (L). 3 Pa.R.C.P.M.D.J. 1000 allows an appellant 30 days within which to appeal to the court of common pleas. 4 It was established at an evidentiary hearing conducted by the trial tpurt that the address was for a building owned by Hogg Properties, LLC b6t at which he did not maintain an office. N.T., 4/24/08, at 10, 15, 18-19. -2- V 1. A14043/09 On appeal to the Superior Court, Hogg raises the question whether the trial court abused its discretion in failing to treat the Magisterial District Court's mailing of the notice of judgment to an incorrect address as a breakdown in the court system warranting the striking of the judgment.' As we have stated before: Our standard of review is clear. A petition to strike a default judgment operates as a demurrer to the record and may be granted only for a fatal defect or irregularity appearing on the face of the record. Cintas Corp. v. Lee's Cleaning Servs., 549 Pa. 84, 700 A.2d 915, 917, 919 (1997). "A court may only look at the facts of record at the time judgment was entered to decide if the record supports the judgment." Id., at 919. A petition to strike does not involve the discretion of the court. Id., at 918. Triangle Printing Company v. Image Quest, 730 A.2d 998, 999 (Pa. Super. 1999). A petition to strike a judgment is a distinct but narrowly defined remedy: A petition to strike a default judgment and a petition to open a default judgment request distinct remedies and generally are not interchangeable. A petition to open is an appeal to the discretion of the trial court; hence, we cannot reverse the trial court's determination absent a manifest abuse of discretion or error of law. Conversely, a petition to strike a default judgment should be granted where a fatal defect or irregularity appears on face of record. Erie Insurance Company v. Bullard, 839 A.2d 383, 386 (Pa. 2003) (internal citations omitted). Super. - 3 - r 3. A14043/09 While Hogg might have filed a petition to open, he chose, instead, to file a petition to strike.5 We are thus confined to searching the recordlthat existed at the time judgment was entered. That record at that moment did not reveal whether the Magisterial District Court mailed the Pa.R.C.P.M?D.J. 324 notice to Hogg, let alone to a correct address. Such information was not part of the "record of the proceedings containing the judgment" to wh iich a district judge must certify to enable a plaintiff to enter his judgme?,lnt at common pleas. See Pa.R.C.P.M.D.J. 402D(2).6 As we held in Triangle Printing Company: The question before us is not whether there was notice from the district justice; the question is whether the prothonotary can enter judgment on a transcript that does not contain on its face a date when notice of judgment was given. That is, the issues raised all turn on the facial contents of the transcript, not the question of whether the district justice actually gave notice. There is no procedural rule requiring such an entry. The Rules require service, to be sure, but no rule requires service to be memorialized on the transcript. District Justice Rule 402D sets forth the procedure for a judgment to be entered in the county office; filing shall be of a certified "copy of the record of the proceedings containing the 5 To clarify whether Hogg was seeking to open rather than strike the judgment, the trial court asked Hogg's counsel: "Well, do you agree? I don't have a motion to open the judgment?" Counsel responded: "I agree, Your Honor." N.T., 4/24/08, at 8. 6 Rule 402D(2) provides that, after 30 days from date of judgment, ' 'The judgment may be entered in the court of common pleas by filing with? the prothonotary a copy of the record of the proceedings containing the judgment, certified to be a true copy by the magisterial district judo in whose office the judgment was rendered or by any other official custodian of the record." -4- 3. A14043/09 judgment," namely, the transcript. The Rule does not prescribe what "proceedings" need be on that transcript, beyond the entry of judgment and the passage of 30 days; specifically, it does not require the copy of the record to include anything about compliance with Rule 324. As the only requirements of the Rule are present, there is no violation of the Rule, and no defect or irregularity appears on the face of the district justice transcript sufficient to preclude entry of judgment. Triangle Printing Company, 730 A.2d at 1000. Hogg maintains the trial court should have granted his Petitibn to Strike on the ground there was a breakdown in the processes of court. Absent a fatal defect of record, a trial court does not have authority to strike a judgment. Id. at 999. Where there has been a breakdown and an application for an appeal nunc pro tunc, we have permitted appeals finder appropriate circumstances. See Commonwealth v. Braykovich, 664 A. 2d 133, 138 (Pa. Super. 1995). Where there has been a breakdown and a petition to open has been filed, we have opened the ]'ud9 ?ent. Southeastern Pennsylvania Transp. Authority v. DiAntonio, 618', IA.2d 1182 (Pa. Cmwlth. 1992).' However, as our Supreme Court has often reminded us, "A petition to strike a default judgment and a petition to open a default judgmen are A petition to open must be filed promptly and present a merits ious defense. It also must set forth a reasonable excuse for the petiti er's inaction that enabled the judgment to be entered or the appeal period to expire. Cintas Corp. v. Lee's Cleaning Services, Inc., 549 Pa. 84, 9j -94, 700 A.2d 915, 919. In Southeastern Pennsylvania Transp. Auth ity, 618 A.2d at 1184, where an error by the prothonotary constituted the breakdown in the processes of court, the "error was more than a reasol, able excuse for opening default judgment." -5- J. A14043/09 generally not interchangeable." Cintas Corp,, 549 Pa. at 93, 700 A.2d at 918 (1997). We, therefore, affirm the trial court's order denying Hogg's Petition to Strike. Jurisdiction relinquished. Judgment Entered. Deputy Prothonotary August 4, 2009 Date: -6- OF THE PRODTP s ")"-I! RY 2069 SE1 15 i'1: i 11: 10-119 • CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Marlin T. Fetterolf vs. Timothy Hogg 2008-321 Civil • 1000 MDA 2008 The documents comprising the record have been numbered from No.l to 121, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 09/26/2008 . acknowledging receipt of this record. Date Curti R. Long, Prothonota~~ Regina Lebo py, th COUn SEP 2 ~ ~~g~ Signature & Title MIDDLE CERTIFICATE AND TRANSMITTAL OF RECORDS UNDER PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1931 (C) To the Prothonotary of the Apellate Court to which the within matter has been appealed: Superior Court of PA The undersigned, Prothonotary of the Court of Common Pleas of Cumberland County, the said court being a court of record, do hereby certify that annexed hereto is a true and correct copy of the whole and entire record, including an opinion of the court as required by PA R.A.P. 1925, the original papers and exhibits, if any on file, the transcript of the proceedings, if any, and the docket entries in the following matter: Marlin T. Fetterolf vs. Timothy Hogg 2008-321 Civil • 1000 MDA 2008 The documents comprising the record have been numbered from No.l to 121, and attached hereto as Exhibit A is a list of the documents correspondingly numbered and identified with reasonable definiteness, including with respect to each document, the number of pages comprising the document. The date on which the record has been transmitted to the Appellate Court is 09/26/2008 . Curt' R. Long, Prothonotary Regina Lebo An additional cony of this certificate is enclosed. Please sign and date copy, thereby acknowledging receipt of this record. Date RECORQ FIlEp IN SUPERIOR Gp 1RT Signature & Title SEP 2 9 2008 mIDDtE