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HomeMy WebLinkAbout10-5557Postal Service im R-r11Fi?n'MAILT. RECEIF v? m 13- m a' Q C3 r`- AU6 15 WIM `;t .if.{Apt N .....--....- BOX 1? 4 _..,,. ;4 1 r-- f r ?6, . Fly}-?^4"F1r..? TART Z: 08 ? PENNSYLYANIA PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DAYS AFTER filing of the notice of appeal Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF i nr ? 4\ - ss AFFIDAVIT: I hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal. Common Pleas upon the iDistrict Justice designated therein on (date of service) 1 20_1_b ? by personal service by {cettifif d) (registered) mail, sender's receipt attached h Veto, and upon the appellee. (name) ( ( f" J L,E?; _'On , 20> c ? by personal service by (ceftified) (registered) mail, sender's receipt attached hereto. (SWO ) jAFFIRMED) A D SUBSCRIBED BEFOR ME THIS 4 DAY OF . 20 Signature oftxifraal btfore whhop1,?uadeL ?.; ?c,YL?rr.?lA C?t.? - ---° ---- A;,I:' ` L S ,? LIC Title of official _r GUILFORD TV1iP. F'R-hP!K%_I? -COUNTY My commission ex F &OMMISSION EXPIR iE. 29 22011 Signature of affiant Postal RECEIPT fa (I)qtrestic Mail Prily; No Insu rance Ceverage Provided) Q a f* M ?? - ' 0 ? u. (4J Q 1 S t t JL I L i ? ? ? !? to<t ? UcGvr^y ?,. - Ef ? ?.3 f Il 3G <ter C.` rn 117 ??f= ti , >) t? l 47 T , r 7IV Q Q _ Street-Apt. No.' ,r r 7 'a'x __.,.._., _....? y , I i ? ey S r r ZrF«a C_, pig llt-L- i PS Forin 3800 ALJCjLJSt'?)006 I? L' t See Reverse for Instructions THE COMPUTER BARN, IN THE COURT OF COMMON PLEAS Plaintiff :CUMBERLAND COUNTY PENNSYLVANIA SAIDIS SULLIVAN LAW 26 West High Street Cazlisle, PA v. N0.2010-5557 DONN P. LUM and SUE D. LUM :CIVIL ACTION -LAW ,~-;~~ ~' Defendants ~ ° ``' ~' ~'' ~~ ~' PETITION TO FILE AN APPEAL FROM DISTRICT JU3E 7 ~M+~~ NUNC PRO TUNC °~, ~ , ? ,, ., ~-~ 1. On or about June 4, 2010, Plaintiff filed a civil action before fhe~=fiorb'rable Paula P. Correal against Defendants Donn and Sue Lum. A true and correct copy of the Civil Complaint is attached hereto and incorporated herein as Exhibit A. 2. Following a hearing, judgment was entered in favor of Plaintiff and against Defendants Donn and Sue Lum on July 29, 2010. A true and correct copy of the Notice of Judgment against Sue Lum is attached hereto as Exhibit B. 3. Defendant Donn Lum filed a timely Notice of Appeal with the Prothonotary's Office on August 25, 2010. See Notice of Appeal attached hereto as Exhibit C. 4. Defendant Donn Lum properly served the Notice of Appeal on the Plaintiff. See Proof of Service of Notice of Appeal attached hereto as Exhibit D. 5. Defendant Donn and Sue Lum were once husband and wife and have since divorced. 6. Defendant Sue Lum believed that Donn Lum had perfected her appeal when he had filed the appeal on August 25, 2010. 7. The Complaint against both Defendants was docketed at the same docket number. 8. It was not until September 16, 2010, that Defendant Sue Lum learned that Defendant Donn Lum's appeal filed on August 25, 2010, did not perfect her appeal. 9. Defendant Sue Lum requests that she be permitted to file an appeal to the District Justice Judgment Nunc Pro Tunc. 10. Plaintiff will not be prejudiced by Defendant Sue Lum's Appeal Nunc Pro Tunc. 11. Defendant Sue Lum asserts that she has a viable defense to this matter. 12. Undersigned counsel sought concurrence from Douglas Miller, Esq., counsel for Plaintiff and concurrence was denied. 13. No judge has been assigned to this case. WHEREFORE, Defendant, Sue Lum respectfully requests that she be permitted to file a nunc pro tunc appeal to the judgment entered by the Honorable Paula P. Correal. Respectfully submitted, SAIDIS SULLNAN LAW 26 West High Street Carlisle, PA ' -- ZU v D to SAIDIS SULLIVAN LAW By: ~an'E:~nd~a, Esquire upreme Court .D. # 80440 26 West High Street Carlisle, Pa 17013 Telephone: (717) 243-6222 Fax: (717) 243-6486 Counsel for Defendant VERIFICATION I, Sue Lum hereby verify that the statements made in the faregaing document are true and correct to the best of my information, knowledge and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Dated: ~.~ , 2010 C`J~-F_.7(.tt_~,-yc_-~ Sue Lum THE COMPUTER BARN, Plaintiff v. DONN P. LUM and SUE D. LUM Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY PENNSYLVANIA N0.2010-5557 CIVIL ACTION -LAW CERTIFICATE OF SERVICE AND NOW, October ~~ , 2010, I, Dean E. Reynosa, Esquire, hereby certify that I did serve a true and correct copy of the Defendants Petition to file an Appeal from District Justice Nunc Pro Tunc upon Plaintiffs counsel of record and Magisterial District Judge Paula P. Correal by depositing, or causing to be deposited, same in the U.S. mail, postage prepaid, at Carlisle, Pennsylvania, addressed as follows: By First-Class Mail: Douglas G. Miller, Esquire Erwin & McKnight, P.C. 60 West Pomfret Street Carlisle, PA 17013 Magisterial District Judge Paula P. Correal 2260 Spring Road, Suite 3 Carlisle, PA 17013 SAIDIS SULLIVAN LAW 26 West High Street Cazlisle, PA De eynosa, E uire S dis Sullivan Law 26 West High Street Carlisle, PA 17013 (717) 243-6222 COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CIIMRF'uTAi~m 09-2-0:1 MDJName: Hon. Paula P.. Corneal 2260 Spring Road ~'Addrese> Suite 3 Carlisle., PA 17D13 re~ephone: (717) 218-5250 AMOUNT DATE PAID FILING COSTS $ f 3 , D4 ~ Q/ 4 / t ~ POSTAGE $~ 1 /~ C..j / 1 p SERVICE COSTS $ / / CONSTABLE ED. $ / / .TOTAL $ CJ . c>O [ D / ~ / I C~ CIVIL COMPLAINT ,~ 0 ~ Ji1N ~~'d PLAINTIFF: NAME and ADDRESS The Computer Barn, Inc. 1460 Newville Road Carlisle, PA 17015 ~ J VS. DEFENDANT: NAME and AoDRess ~ ~ Donn P. Lum Sue D. Lum 2707 Lawyers Road ~--~hambersburg, PA 17201 ~ Docket No.: (.._V" $ ~j ~- Lc~ p ~ L~3tn Filed: ~4 ~ ~-(! i G Pa.R.C.P.D.J. No. 206 sets forth those costs recoverable by the prevailing party. TO THE~DEFENDANT.: The_above named.piaintifF(s) asks judgment against you for ~ 4.469.89 together with costs upon the following claim (Civil fines must include citation of the statute or ordinance violated): Defendants signed a Lease with Plaintiff on or about May 29, 2009, for the rental of commercial space at 1758 Lincoln Way East, Chambersburg, Pennsylva --~... 17202.. Pursuant to the Lease terms, Plaintiff paid a security deposit o~ ~2~440.0^OJ and Plaintiff also significantly improved the condition of the commercial space. After termination of the Lease, Defendants have failed and refused to return the .security deposit. Despite significant advertising expenses paid by Plaintiff in the amotmnit xoYC ;$2„5029.;59;, De=fe~ndant-s ;also ~Lailed ;and refused to release the telephone '"~ "~nu~dbe?i ~=fret 'ihe '`husiness ~to Plaintiff Plaintiff also requests a judgment for its costs and reasonable attorney fees. =1, `Dduglas G. Miller verifv that the facts set forth in this r_ompiaint are uue and correct to the ;best of my3knowiedge, information, and belief. This statement is made subject to the penalties of Section 4904 of the Crimes Code (18 PA. C:S"§4904) related to unsworn falsification to authorities. T ' igna a of P aintiff or ut o zetl Agentl ~~.rP,laintiff's '_,atto'rney: ~Dout?:las G Mille Address: 60 West Pomfret Street ~'TieiephoneN~( X71.7;) :2.49-2:35.3 Carlisle. PA 17013 ~:EWTER~A'`DEFENSE TO THIS COMPLAINT, YOU SHOULD SO NOTIFY THIS OFFICE IMMEDIATELY AT THE ~NEfNUMBER. YOU MUST APPEAR AT THE HEARING AND PRESENT YOUR DEFENSE. UNLESS YOU DO, 8E~!?NTERED~AGAINST YOU BY DEFAULT. !laim;againstahe plaintiff which is within magisterial district judge jurisdiction and which you tt:at-,the hearing, you must file it on a complaint form at this office at feast five (5) days ;set~forthe hearing. abled .and require a reasonable accommodation to terial wand+tts=services, please contact the Magisterial Di dress raumYber. 'yWe<are unable to provide transportation. .~. .~'' -COMMbNWEALTH _OF PENNSYLVANIA: .NOTICE OF JUDGMENT/T.RANSGRIPT COUNTY 01=:~..~>~RTA,~,~. CIVIL'CASE Mag: Dist ~No.: PLAINTIFF: NAME and ADDRESS ~~ 09 2 =D1° ". rTJ~ COMPIITER BARN, -l ' -MDJ Name: ~HOn..:. ~ 1460 NEWVILLE RD - ~' ' ~ P~AIILA ~P::. CORREAL '~'. ~ . `~ <--.:CARLISLE, PA 17015 ~. :.Add,e55 226"0 SPRING ItD $U2TE #3 - L ° r J ~ ~, ~. t, ~CARLISI;$,` :FA "~ VS. / ~ ~ ,>. ~; '~ <~. DEFENDANT ~,.na rf.~ a~iubr~, `~ ~ .•:, , ' .-4-~ ~" NAME and ADDRESS ., 4'~e . ,ry A; raiePao~g~j7~7*„~ .238 5250 '1:7013.-:00.00 fLUMr DONN P:, -:}3T AL. ~` - - ~~, .: ~; , £ ~ 2707 LA~PYERS RD ~~~~'~:.~::~ ,~, 4..'-t Rte.-~., xe:,~~2 . , ' CI3~I~ERSBIIRG, PA 172.01 ,. DONN `P-. I.IIM t- _I ~T07 ";WYERS :RD Docket No.: CV- 0000085 -10 '~` ,CHERSBIIRG, -PA 17201 Date 'Filed: 6/04/10 - THIS !S TO NOTIFY YOtt THAT: _ _FOR „P-LAINTII?F ' .--,: , .. - ~ -.~- ___' .- ..- 7 2 9 10 _ t, ~.~-~-_:F-~., ~ladgment:~ ~' ~~ _ (Date ©f_,J - - - --- - - u&1.gfxtent~ - .,.`~ _. ® Judgment was entered for: (Name) T~ COrwTSR BARN, Judgment was entered against: (Name). LIIM, SDE D ~" in the amount of $ 4, 627.8 - Amount of Judgment $ 4, 4.69.89 -~ -:Defendants are"jointly, and severally liable. Judgment Costs ~ $ 158.:00 ~,~,,; ~ ,Damages well be assessed on-Date & Time interest' n Judgment. $ - } Attorne Fees $ ' ~. ~':~ This.case dfsmissed without prejudice. ~ Total ~ 4, 6:27. 89 - Amount of Judgment~~ubject to Attachment/42 Pa.C.S..§ 8127 Post,Judgment Credits $ $ Post :Judgment Costs $ _ •Portion of Judgment for physical damagesarisinp out of ~~ residential lease $ Certified,Judgment Total -$ ~~""a`,AtN~P,Y/kRl`~YaHAtS`THE~RIGHT'TOrA"PPEAL WITHIN 30'DAYS AFTER THE ENTRY OF JUDGMENT BY FILING .A`NOTICE ""'ti '`' OF•y/CP.PEAL`~YVITH,THE"~PR"OTH'ONOTARY/CLERK OF.THE COURT OFCOMMON PLEAS, CIVIL DIVISION. YOU MIST<INCLUDE;A'C"OPY OF THIS NOTICE~OF JUDGMENTlTRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. ` E~CCEPT.AS OTHERWISE PROVIDED IN'THE RULES OF CIVIL PROCEDURE FOR:.MAGISTERIAL .DISTRICT JUDGES;~.IF THE 3gDOAAEDI.T Hn.~..,_.~._,nFR.EL~t'LQ,;EIsI~E,F.iYLHE.,Ji1D.GMEN(C.JN T~E.~D.URTAF GQMMON PL1~1~,.ALL,:.E47RTI•IER.. RQGESS:M11.S7 . ; ~,,;~„~. ~~~COM~51Vi"1`i~'~''C-O,0'F~"O~iriN9101C7~1"I~CE~%1-Nb"'I+(~'URTff'EA"PRdOE$5 Ml~fYjBE ISSU~D`B!V'THE'"MA'GIST~RI`AL''DCSTRI'GT;IUbGE : -' '-" ` UNLESS THE JUDGI4IENT IS ENTEREb~IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE ` ~A-RECIUEST-FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE 1F THE JUDGMENT DEBTOR.PAYS IN FULL; ~;,,, , SETTLES, OR.OTHERWI$E:GOMPLIES WITH THE JUDGMENT. ;;,; _• . _... r, - -'; , ,. , ; r,. ,, . ,. ,m, r ~ 3„ ~ , d}jam' , 4 -' , -, ~,: Date s. '~ a ~; .- ~ , v ` r, ,~ t - `"" ,"Magis~'~~ri~l F3'lstrrcC, ~dg~, ~' ,, ~~~ d certify-'that thrs ~IS a true and: rr~ct c y~df ttie,record ' f'the,.pC©ceedings conta~rnr~c,~~t~ fir` ~` - ~'~ ~ ~ ~ Date- _~ ~ ~.. ~" ( ~..~ . ' Ma .~~r 1 tri ~ ~~ ~ ~~ *~'~ - - d'ge ' ~ '" ~- ,.:` 2012 ~ - - `Nly=commission expires first Monday of January, . . ~...._ _ AOP.C 31.5-07 _ _ ~,,~~.~°= •, DATE PRINTED : `7 / 2 9 / 10 3 : 2 5 : 0 0 PM _~ f. /: COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS NOTICE OF APPEAL Judicial District, County Of FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. `~ /®' 55.:3? iiv-t'~;~rm NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pleas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. rw~. uw i . nc~. nwr~t or u.r. ADDRESS APPELLANT G(TY ~ STATE DP CODE DATE OF JUDGMENT NJ THE CASE OF (PNinf (De/sndanl)' This block will be signed ONLY when this notation is required under Pa. If a lant was Claims (see Pa. R.C.P.D.J. No. 1001(6) in action R_C.P.D.J. No. 10068. This Notice of Appeal, when received by the District Justice, will operate as a before a District Justice, A COMPLAINT MUST BE FILED within twenty SUPERSEDERS to the judgment for possession in tF~is.case`-'""' _,...~---^°'-""`~"~ (20) days after filing the NOTICE of APPEAL. ~~~ " "'J _ - SignstundProtMOnotrryorDspuy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.C.P.D.J. No. 1001(7) in action before District Justice. lF NOT USED, detach from copy of notice of appeal to be served upon apps/lee. PRAECIPE: To Prothonotary _. __ Enter rule upon ~Jjr$ ~~~~~~ ~~,,~ appellee(s), 1o fife a complaint in this appeal ~-+" Name of appeMee(a) (Common Pleas No. ~b- J~.`)57 lug t )within twenty (20) days after service of rule or suffer entry of judgment of non pros. 7Errn Sigrrattee Or appellant orattomey or agent RULE: 70 ~~ xlj~jf~"" ~ ~ ~ ~ , aPPellee(s) Name of appeNee(s) (1) You are notified that a rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upgn, you.by personal service or by certified or.registered mail. '~ (~) If. you•do,not.file;,a'comptaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. .. s "' (3)',~Th~e~a~~,d#service~of this rule if service was by mail is the date of the mailing. '' ~.. .s~.r ~ .~ : ~` r, . t f,.. . ~ , ~ .~. Signature of Prothonotary or DePoh' r' ...N' ys. ~ 1. ,_ y... `.'. ,~i} YOU MUS,,T' IAI_C~LUDE A,COPY OF THE NOTICE FORM WITH THIS NOTICE OF APPEAL. 40PC 312-02 WHITE -COURT FILE TO BE FILED WITH PROTHONOTARY GREEN -COURT FILE YELLOW - APPEtlANTS COPY PINK - COPY TO BE SERVED ON APPELLEE GOLD -COPY TO BE SERVED ON DtSTRiCT Jt95TlCE ~e `~ .G 1 r d J 7 ~etum Receipt Fee ~ {E:ro~sement Required) 3 Re_tricted Delivery Fee ~~srsement Required; J a ~ -.~.;,;I Postage & Fees _._._ ._.~._ ~.o;as~;i:.. c>., „~, ;:; r Lf'S m >r Q ~ Return Receipt Fee ~ {indorsement Required) O ?estricted Delivery Fes ;~ndarsement Required) G a ~- Tofal Postage & Fees m PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (T 0) DAYS AFTER filing of the notice of a ppeat. Check applicable boxes.) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ~~~ n~ ~ ~ ; ss AFFIDAVIT: I hereby (swear} (affirm} that I served ^ a copy of the Notice of Appeal, Common Pleas ,upon the District Justice designated therein on (date of service) 1 , 20~, ^ by personal service by (certified) (registered) mail, senders receipt attached h~ eto, and upon the appellee, (name) [_(j F ~ ~~ '~,~'>,..~ ~ ~ ~ ~ , on 20~~ ^ by personal service ~ by (certified) (registered) mail: sender's receipt attached hereto. _ (SWO ).LFFIRMED) A D SUBSCRIBED BEFORE ME ~' t ~e, ~- ~~^ ~~ THIS ~~~_ DAY OF . 20~. ~'''~ ~ ` }`~`-`"'~~' •~ ~ ~~' Signature of alfiant Signature or t9trrc~af b fore wfjo -a(fe¢c~,v~j rtass, rt~q~- ,-:~;, .~` +; L~ra,ilA Title of official v ~. rnr;:•._. <:. ; .:. '~ ~~(~ GUILFORD TVVP. FR t[``•~.~ ~iy COi;NI"Y My commission ex irt'a'~tt5i~DMM1S510N EXP1RrS~R. 2i, 2011 ~ /ICE First-Class Mail Postage & Fees Paid POSTAL SERVICE First-Class Mail Permit No. G-10 Postage & Fees Paid USPS Permit No. G-10 int your name, address, and ZIP+4 in this box • :r: Please print your name, address, and ZIP+4 in this box • i1 ~ a ~ t t (~ ~J ~ // it y ~~s ~ --, ~ ~~•- U:~: Postal ~ervicE ~• ,~E33TtF1~D .M~A1L~~.,=~EG~GPT ~ntestic Mail'Only;'No'Insurance.Cavecage Amvideti) ... _. __ _..~u.w.... o..:a¢..'s~.ai,rnunYi r~encnnrh.. ` ~ H THE COMPUTER BARN, IN THE COURT OF COMMON PLEAS OF C, PLAINTIFF :CUMBERLAND COUNTY, PENNSYLVAN~ ~_ -'' • `~, ~ ~ cnr, ~ N ~ ~c~ DONN P. LUM and °- ~ ~ ~_-~, -`O SUE D. LUM, ~c-~ ~ ~~ DEFENDANTS NO. 10-5557 CIVIL y~ ~ ~~ «a ORDER OF COURT °~ G~ ° ~ AND NOW, this 25th day of October, 2010, upon consideration of Sue D. Lum's Petition to File an Appeal from District Justice Nunc Pro Tunc, IT IS HEREBY ORDERED AND DIRECTED that: 1. A Rule is issued upon the Parties to show cause why the Petitioner is not entitled to the relief requested; 2. The Parties will file an answer to this petition on or before November 10, 2010; 3. The Prothonotary is directed to forward said Answers to this Court. 4. Any depositions needed for this matter shall be completed by November 30, 2010; 5. A hearing/argument on the matter will be held on Thursday, December 14, 2010, at 3:30 p. m. in Courtroom No. 2 of the Cumberland County Courthouse, Carlisle, Pennsylvania. Dean E. Re nosa, Es uire Y q Attorney for Defendants M. L. Ebert, Jr., By the Court, • ,/Douglas G. Miller, Esquire Attorney for Plaintiff bas i ~.5 rrL~Jl lS~4v !o j~c. f ca ~rr~ FILED-OFFICE OF THE PROTHONOTARY THE COMPUTER BA j",Noy 10 PM 3:2 kN THE COURT OF COMMON PLEAS OF Plaintiff, CUMBERLAND COUNTY PENNSYLVANIA CUMBERLAND COUNTY ' vYLVANI : No. 2010 - 5557 CIVIL TERM DONN P. LUM, Defendant. : CIVIL ACTION -LAW ANSWER TO PETITION TO FILE AN APPEAL FROM DISTRICT JUDGE NUNC PRO TUNC AND NOW, this 10TH day of November, 2010, comes the Plaintiff, THE COMPUTER BARN, by and through its attorneys, IRWIN & MCKNIGHT, P.C., and makes the following Answer to the Petition to File an Appeal Nunc Pro Tunce 1. The averments of fact contained in paragraph one (1) of the Petition to File an Appeal Nunc Pro Tunc are admitted. 2. The averments of fact contained in paragraph two (2) are admitted. 3. The averments of fact contained in paragraph three (3) are admitted. 4. The averments contained in paragraph four (4) are denied as stated. Defendant did not serve the Notice of Appeal upon the undersigned attorney, legal counsel of record for the :Plaintiff, but instead mailed the document directly to the Plaintiff. 5. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph five (5) so they are therefore specifically denied and strict proof thereof is demanded. 6. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph six (6) so they are therefore specifically denied and strict proof thereof is demanded. By way of further answer, the only Notice of Judgment filed in this matter is the one entered against Defendant Donn P. Lum, the only signature on the Notice of Appeal is that of Mr. Lum, and the only name written on the filed Notice of Appeal by Mr. Lum is his own name. The first appearance of the name of Sue D. Lum in this matter is on the instant Petition before this Court. 7. The averments contained in paragraph seven (7) are denied as stated. It is admitted that one Complaint was filed against both Mr. and Mrs. Lum before the Magisterial District Judge. The remaining averments in paragraph seven (7) are specifically denied and strict proof is demanded, including any averment that Sue D. Lum is a proper party to this action. By way of further answer, the Notice of Judgment in favor of Plaintiff and against Sue D. Lum was previously filed at Cumberland County Docket No. 2010 - 5818. A true and correct copy of the time-stamped Notice of Judgment is attached hereto and incorporated herein as Exhibit "A." It is therefore averred that Plaintiff has already entered a valid judgment against Sue D. Lum that is :filed of record in Cumberland County and arises out of this matter. 8. After reasonable investigation, Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph eight (8) so they are therefore specifically denied and strict proof thereof is demanded. 9. The averments contained in paragraph nine (9) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded. By way of further answer, outside of a result of fraud or a breakdown in the operation of the courts, an appellant may only appeal nunc pro tunc where the failure to file a timely notice of appeal is due to non-negligent circumstances, the notice of appeal is filed shortly after the expiration date, and appellee is not prejudiced by the delay. Criss v. Wise, 566 Pa. 437, 781 A.2d 1156, 1159 (2001). "The exception for allowance 2 of an appeal nune pro tune in non-negligent circumstances is meant to apply only in unique and compelling cases in which the appellant has clearly established that she attempted to file an appeal, but unforeseeable and unavoidable events precluded her from actually doing so." Id. at 1160. "[T]he mere neglect or mistake of the appellant or his counsel is not considered a sufficient excuse for failure to file a timely appeal." Morflng v. Dunne, 342 Pa. Super. 414, 493 A.2d 89, 91 (1985). See also 16 Standard Pa. Practice 2d § 85:63. In the instant case, the failure of Sue D. Lum to appeal is not the result of non-negligent circumstances, and in fact she has not yet even filed a notice of appeal. Furthermore, a judgment against her is already filed and docketed at Cumberland County Docket No. 2010 - 5818. There is no explanation provided in the instant Petition to set forth or outline the non-negligent circumstances justifying an appeal nune pro tune, and there is no indication from the documents filed of record that Defendant sought to also, appeal on behalf of Sue D. Lum. 10. The averments contained in paragraph ten (10) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded. By way of further answer, Sue D. Lum has not yet filed a notice of appeal and a judgment against her is already filed and docketed at Cumberland County Docket No. 2010 - 5818, so Plaintiff would in fact be prejudiced. 11. The averments contained in paragraph eleven (11) are conclusions of law to which no response is required. To the extent that a response is required, the averments are specifically denied and strict proof thereof is demanded. 12. The averments of fact contained in paragraph twelve (12) are admitted. 13. The averments of fact contained in paragraph thirteen (13) are admitted. 3 WHEREFORE, the Plaintiff respectfully requests that this Honorable Court deny the Petition to File an Appeal Nunc Pro Tunc, and grant such other and further relief as may be necessary and just. Respectfully submitted, IRWIN & McKNIGHT, P.C. Date: November 10, 2010 By: Douglas G. iller, Esquire Supreme Co in I.D. No: 83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for the Plaintiff, The Computer Barn 4 VERIFICATION The foregoing document on behalf of the Plaintiff is based upon information which has been gathered by counsel for the Plaintiff in the preparation of this document. The statements made in this document are true and correct to the best of the counsel's knowledge, information and belief. The Plaintiff's verification cannot be obtained within the time allowed for filing the pleading. The undersigned is therefore verifying on behalf of the Plaintiff according to 42 Pa.C.S.A. § 1024(c)(2). The undersigned understands that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. e %-? Ai4a- A ik- Douglas G M' er, Esquire Date: November 10, 2010 EXHIBIT "A" COMMONWEALTH OF PENNSYLVANIA COUNTY OF: -E_r A>N"' Mag: Dist. No.: 09=2=.01 MDJ Name: Hon, PAULA P. CORREAL Address: 22.60. 'SPRING 'RD SUITL. 43.: CARLISLE, PA Telephone: (717) 218 - 5250 17013 004 1. ? luxff? DONN P, $T AL' - - ATTORNEY FOR PLAINTIFF DOUGLAS G. MILLER 60 W POMFRET ST CARLISLE, PA 17013 THIS IS TO NOTIFY YOU THAT: 27.07 .LAWYERS' RD CRAMBERSBURG, PA 17201 L.. J . ..DocketNo.: CV-0000085-10 'Date Filed: 6/04/10 Judgment: FOR PLAINTIFF (Date.:of Judgment). 7/29010 Judgi-neht-was entered for: (Name).. TIM COMPUTER AWN, Judgment was entered against.({Name . 'LUM, SUE D in the amount of $ 4; 527 . s -r Defendants are jointly and .severally liable. F] Damages Will be assessed on Date A Time F] This case dismissed without prejudice: Amount of Judgment Subject to Attachment/42 Pa.C.S: 18127 Portion of Judgment for physical .damages arising out of residential lease $ Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAY&AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL `WITH. THE.PROTHONOTARY/CLERK OF THE 60.URT 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 SHE COURT OF COMMON PLEAS:AND N.O:FURTHER•PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT`ISENTERED 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. Zloe' Ll"U Date , Magisterial District Judge f c7effy27 that this Is a true and rect of er r t dngs c fining the judgment. Aoe , Magisterial `District Judge Date My commission expires first. Monday of January, 2012 SEAL AOPC 315-07 DATE PRINTED: 7/29/10 3:25:00 PM CERTIFICATE OF SERVICE I, Douglas G. Miller, Esquire, do hereby certify that I have served a true and correct copy of the foregoing document upon the persons indicated below by first class United States mail, postage paid in Carlisle, Pennsylvania 17013, on the date set forth below: DEAN E. REYNOSA, ESQUIRE 26 WEST HIGH STREET CARLISLE, PA 17013 :Date: November 10, 2010 IRWIN & McKNIGHT, P.C. Douglas Miller, Esquire Supreme ourt I.D. No. 83776 West Pomfret Professional Building 60 West Pomfret Street Carlisle, Pennsylvania 17013-3222 (717) 249-2353 THE COMPUTER BARN, IN THE COURT OF COMMON PLEAS OF PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA V. DONN P. LUM and SUE D. LUM, DEFENDANTS NO. 10-5557 CIVIL ORDER OF COURT AND NOW, this 15th day of December, 2010, by the agreement of counsel for the parties, the argument scheduled for Thursday, December 14, 2010, at 3:30 p. m. is continued generally to allow for a settlement agreement to be completed. If need be, either party may request that the argument be rescheduled. By the Court, M. L. Ebert, Jr., Dean E. Reynosa, Esquire Attorney for Defendants Douglas G. Miller, Esquire Attorney for Plaintiff bas toes en:2-1 LL Iz isPo J. C- C=3 -?, ?C ra rte, r) r-n rriM r= pp C -1 Q O'=1 p .O CC) THE COMPUTER BARN, : IN THE COURT OF COMMON PLEAS OF Plaintiff, : CUMBERLAND COUNTY, PENNSYLVANIA V. : No. 2010 - 5557 CIVIL TERM ? a -vim = DONN P. LUMM, zr Defendant. CIVIL ACTION - LAW Ch r- r-:;? W PRAECIPE TO SETTLE AND DISCONTINUE 0 zCD TO THE PROTHONOTARY: Please mark the above-captioned case settled and discontinued and mark the judgment related thereto as paid in full and satisfied and issue evidence of the same to the undersigned. Respectfully submitted, IRWIN & McKNIGHT, P.C. Date: January 112011 By: ' A&A, Doug as G. iller, Esquire Supreme Court ID 1#83776 60 West Pomfret Street Carlisle, Pennsylvania 17013 (717) 249-2353 Attorney for Plaintiff SAIDIS, SULLIVAN & ROGERS Date: January A , 2011 By: Jeafi lb e , 1, squire Supreme Court I #`nbyg0 26 West High Street Carlisle, Pennsylvania 17013 (717) 243-6222 Attorney for Defendant 7 S ?' C)- . Z;:; -°