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HomeMy WebLinkAbout01-2321,~MMONWEALTH OF PENNSYLVANIA COUNTY OF: Mag Dist. NO.: 09 -1-02 DJ Name: Hon ROBERT V. MANLOVE AOdr~s~ 1901 STATE STREET CAMP HIT.L, PA (717) 761-0583 STEVEN C. COU~TNEY, ESQ. 3211 N FRONT ST PO BOX 5300 HArRISBUrG, PA ~ .i 20 17011-0000 NOTICE OF JUDGMENT/TRANSCRIF CIVIL CASE PLAINTIFF: NAME and ADDRESS FCOU~TNEY, ESQ., STEVEN C 3211 N FRONT ST PO BOX 5300 ~RRISBUKG, PA 17110 VS. DEFENDANT: NAME and ADDRESS 3 E SHADY LN ENOLA, PA 17025 L Docket No.: CV- 0000451- 00 Date F ed: 12/12/00 THIS IS TO NOTIFY YOU THAT: Judgment: ~-~ Judgment was entered for: (Name) ~'] Judgment was enterecJ~against: (Name) in the amount of $ .00 on: ~-] Defendants are jointly and severally liable. ~ Damages will be assessed on: [--~ This case dismissed without prejudice. ~-~ Amount of Judgment Subject to Attachment/Act 5 of 1996 $ [] Levy is stayed for__days or [] generally stayed. [~] Objection to levy has been filed and hearing will be held: (Date of Judgment) (Date & Time) Amount of Judgment $ .00 Judgment Costs $ .00 Interest on Judgment $ . O0 Attorney Fees $ .00 Total $ .00 Post Judgment Credits Post Judgment Costs Certified Judgment Total $ $ Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF Th~C.~.~JU. D~I'i~;IP. T F/(~M WITH YOUR NOTICE OF APPEAL j-a3-ol Date." . o,str,ct ust,ce I certify that this isa true ~;~~~f the proceedings containing the judgment. '3 -~2'~3--O ] Date/~"~/~//~/~,~;~¢'~,~~ ,District Justice My commission expires firs~,Mgnday of January, 2006 SEAL AOPC 315-99 COMMONWEALTH OF PENNSYLVANIA NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT eatd ia P~othyts Of~iee 4-20-01 COMMON PLEAS No. 01-2321 Civil Tern 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 Jus on the date and in the case mentioned below. TA19 ~ ~,~ ~ This block wlil~ si~ned O~kY ~h,n this n~tat,on is requ~~ ~ ~ ~.C.P.J.~. ~o. ~0088. No. IO0~GJ in action be~or~ D/str[cr ~ust/ce, ~ This ~otice of A00eal. when received by the District Justice~ w~ll operate as a SUPERSEDEAS to the judgment for possession in this case. MUST FiLE A COMPLAINT within twenty (26 days after filing his NO TICE of APPEAL. S/gnature of Prothonotary or Deputy PRAEClPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appel/ant was DEFENDANT(see Pa. R.C.P.J.P. No: 1001(7) in action before District Just IF NOT USED, detach from copy of notice of appeal to be served upon appellee). PRAEClPE: To Prothonotary Enter rule upon {Common Pleas No. , appellee(s), to file a complaint in this apl Name o f appellee (s) ) within twenty (20) days after service of rule or suffer entry of judgment of non p~ RULE: To , appellee(s) Nacle of appellee(s) (1) You are notified that a rule is hereby entered upon you to file service of o the date MENT O' the date ! PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE rO F:!L~ COMPLAINT (Th~sproofofservi~oMUSTBEF/LED WITHin'FiVE H>'DA~,, ~l~ ,,'£ ' //~. H,,, , ~Ji..~ , ,~,~,, OMMONWEALT, zOF PE NSYLV NIA ' OUNTY OF ~ . . NOTARIAL SIAL CAROL A. L'~ER, NOTARY PURLIC Harrisburg. Da~l~bin Co~qly My I~ommission Expires Dec. 28 2004 _TH OF PENNSYLVANIA JUDICIAL OIST~ICT NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT Ent~t in ~£u~hy's Offic~ 4-20-01 COMMON PLEAS No. 01--2321 Civil Term NOTICE OF APPEAL Notice [s given that the appe%{ant has filed [n the above Court of Common Pleas an appeal from the iudgme~t rendered by the O~strict Justice on the date and in the case mentioned below, TA19 . ~~ R.C.P,J.P. No. 1008B. ~. ~001~61 /n action before D~tr/ct Justice, he e SUP~RSEDEAS to the ~ud~men~ f~r posses~o~ in th[~ case. MUST FILE A COMPLAINT w/th~ twenty ~20~ da~s a~ter firing his ~0 TICE of APPEAL. PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of forfn to be used ONLY when appe//ent was DEFENDANT (see Pa. R.C.P.J.P. No. ~001(?) iD action before D/strict Jostice. IF NOT USED, detach from copy of/lot/ce of eppea/ to be served opon appellee). PRAECIPE: To Prothonotary (Common Pleas No. · appelJee(s}, to file a compJaint in this appe~ Name Of appeffee(sl ) within twenty (20) days after service of rule or suffer entry of judgment of non pro RULE: TO , appellee(s) Name of appellee(~) (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 service of this rule upon you by personal service or by cert(fied or registered mail. (2) If you do not file a complaint within this time· a JUDGMENT OF NON PROS WiLL BE ENTERED AGAINST YOU, (3) The date of service of this ru~e if service was by mai) )s the date of mailing, Date: ,19__, Signature of Prothonotary or De COURT FILE TO BE FILED WITH PROTHONOTARY PROOF OF SERVICE OF NOTICE OF APPEAL /AND F~UL~. TO FII.~ ,~,.)M LA vt' COMMONWEALTH OF PENNSYLVANIA AFFIDAVIT: I hl!reby swl,~ar eli alfi!m thir ! mw~; SWORN (AFFIRMED) AND SUBSCRIBED THIS ....... DAY OF ..... STEVEN C. COURTNEY, Plaintiff ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case NO. 2001-02321 Civil Term PLAINTIFF'S MOTION TO REINSTATE APPEAL AND NOW, comes the Plaintiff, Steven C. Courtney, Esquire, and respectfully moves this Honorable Court to reinstate his appeal and in support thereof avers as follows: 1. Plaintiff, Stevcn C. Courtney, Esquire, filed an appeal of the District Justice Judgment relative to the above referenced matter on or about April 20, 2001. On April 23,2001, Plaintiff filed the Proof of Mailing of the appeal with this Court. 3. On April 27, Plaintiff filed a Proof of Service relative to Defendant's receipt of the appeal to the Court of Common Pleas. 4. On April 27, Plaintiff filed a Proof of Service relative to the District Justice's receipt of the appeal to the Court of Common Pleas. 5. On May 8, 2001, Plaintifftimely mailed to the Prothonotary's Office of the Court of Common Pleas of Cumberland County for filing an original and three (3) copies of Plaintiff's Complaint relative to the above referenced matter. A true and correct copy of the filing letter and Complaint is attached hereto, incorporated herein and marked as Exhibit "A". 6. On May 16, 2001, Plaintiff learned that Defendant through its counsel filed a Praecipe to Strike Plaintiff's Appeal pursuant to Rule 1006. A true and correct copy of the letter Document #: 206278.1 from Defendant's Counsel is attached hereto, incorporated herein and marked as Exhibit "B". 7. Pursuant to Pa.R.C,P.J.P. No. 1006, this Honorable Court may reinstate an appeal that is stricken upon a showing of good cause. 8. Plaintiff avers that the above appeal should be reinstated for the following reasons: a. Plaintiff prepared and mailed his Court of Common Pleas Complaint in a timely manner; b. The letter addressed to Cumberland County's Prothonotary's Office enclosing the Complaint was not returned to Plaintiff; c. Plaintiff acted in good faith and reasonable belief that the Complaint would be received by the Prothonotary's office in a timely manner for filing; d. Plaintiff has just learned that the letter enclosing the complaint was not received by the Prothonotary's Office in a timely manner; e. Plaintiff immediatley filed the instant Motion upon learning of the filing Defendant's Praecipe to Strike Plaintiff s appeal; f. Plaintiff will be unduly and unfairly prejudiced by the striking of his timely appeal filed in the above referenced matter; g. Defendant will not be prejudiced by the reinstatement of Plaintiff's appeal and the filing of the Complaint. Document ii: 206278.1 WHEREFORE, Plaintiff, Steven C. Courtney, Esquire, respectfully requests that this Honorable Court grant Plaintiff's Motion to Reinstate Plaintiff' s Appeal and allow Plaintiff to file his Complaint. Respectfully submitted, METZGER, WICKERSHAM, KNAUSS & ERB, P.C. By P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney ID No.: 74669 Attorney for Plaintiff Dated:/~/~//~ ,2001 Document #: 206278.1 VERIFICATION I, Steven C. Courtney, do hereby certify that the statements made in the foregoing Motion are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities Dated Document #: 162754.1 Exhibit A 8 May 2001 Cumberland County Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 SINCE 188B 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 717-238~8187 Fax: 717-234-9478 Other Offices Colonial Park 717-652-7020 Mechanicsburg 717-691-5577 Shippensburg 71%530-7515 Re.' Steven C. Courtney v All Tune and Lube Case No. 2001-2321 Civil Term Dear Sir or Madam: Enclosed herein for filing please find an original and three (3) copies of Plaintiff's Complaint with reference to the above captioned matter. Kindly file the enclosed documents and return the time- stamped copies to my office in the enclosed self-addressed and stamped envelope contained herein. Please contact me with any questions or concerns. Very truly yours, METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Steven C. Courtney, Esquire SCC/dlr Enclosures Document #: 204425 1 /ames E Carl Edward E. Knauss, 1V* lemd L. Hock Karl R. Hildabrand* Steven P. Miner Clark DeVere E. Ralph Godfrey Steven C. Courtney Francis 1. Lafferty, IV David H. Mar tlneau Andrew W. Norfleet Steven C. Skoff Melissa L. Stickel * Board Certified ill civil trial law and advocacy by tile National Board of Trial Advocacy ATTORNEYS AT LAW JOEL C, HOPKINS Phone: 717-257-7525 Fax: 717-257-7590 jhopkins@saul.com www.saul.¢om May 15, 2001 Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Steven C. Courtney v. All Tune and Lube Case No. 01-2321-CV Dear Mr. Long: Enclosed please find Defendant All Tune and Lube's Praecipe to Strike Appeal pursuant to Pa.R.C.P.J.P. No. 1006. Please file the original and return a time-stamped copy to our office in the enclosed envelope. Thank you for your anticipated cooperation. By copy of this letter all parties of record have been served with the attached filing. Thank you for your anticipated cooperation. JCH/aja Enclosure b/~ cc: Steven C. Courtney ~rSfincerely, ./~ Joel C. Hopkins 2 North Second Street, 7'~ Floor · Harrisburg, PA I7101-1604 ~. Phone: (717) 257-7500 * Fax: (717) 238-4622 8200315/15/01 BALTIMORE CHESTERBROOK HARRISBURG NEW YORK PHILADELPHIA PRINCETON WILMINGTON IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, V. ALL TUNE AND LUBE, Defendant. No. 00-2321 Civil Term PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J.P. No. 1006, please strike the appeal filed by plaintiff in the above-captioned matter for failure to file a Complaint within twenty days of filing the Notice of Appeal from District Justice Judgment. DATED: May 15, 2001 PRO PROTHY: Appeal stricken pursuant to Pa. R.C.P.J.P. No. 1006. Respectfully submitted, Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7~ Floor Harrisburg, PA 17101 Attorney for Defendant 82~215/15101 CERTIFICATE OF SERVICE I, Aimee J. Albright, hereby certify that on this 15th day of May, 2001, I served a tree and correct copy of the foregoing Praecipe to Strike Appeal via First Class Mail, postage prepaid, upon the following: Steven C. Courtney 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Secretary to Joel C. Hopkins, Esquire 820021 5/15101 STEVEN C. COURTNEY, Plaintiff V ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case NO. 2001-02321 Civil Term CERTIFICATE OF SERVICE Courtney, Esquire, do hereby certify that on M~/J~ ,2001, a true I, Steven C. and correct copy of the Plaintiff's Motion to Reinstate Complaint was served upon the following individual by First Class United States Mail to: Joel C. Hopkins, Esquire 2 North Second Street 7th Floor Harrisburg, PA 17101 METZGER, WICKERSHAM, KNAUSS & ERB, P.C. P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney ID No.: 74669 Attorney for Plaintiff Document #: 206278.1 STEVEN C. COURTNEY, Plaintiff VS. ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA : : 01-2321 CIVIL : : CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE PLAINTIFF'S APPEAL ORDER AND NOW, this 2 $° day of May, 2001, a role is issued on the defendant to show cause why the relief requested in the within petition ought not to be granted. This rule returnable ten (10) days after service. BY THE COURT, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, V. ALL TUNE AND LUBE, Defendant. No. 2001-02321 Civil Term RESPONSE TO PLAINTIFF'S MOTION TO REINSTATE APPEAL Respondent, All Tune and Lube ("All Tune") by and through its attorney's, Saul Ewing LLP, hereby responds to Plaintiff's Motion to Reinstate Appeal as follows: 1. Admitted. 2. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 2. 3. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 3. 4. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 4. 822481 5/25/01 5. Denied. After reasonable investigation All Tune is without knowledge or information sufficiem to form a belief as to the truth of the averments contained in paragraph 5. 6. Denied. After reasonable investigation All Tune is without knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 6. 7. Admitted. 8. Denied. The averments of paragraph 8 are legal conclusions to which no responsive pleading is required. To the extent the averments of paragraph 8 are deemed factual, after reasonable investigation All Tune is with out knowledge or information sufficient to form a belief as to the truth of the averments contained in paragraph 8, and same are denied. WHEREFORE, All Tune respectfully requests this Court enter an Order denying Plaintiff's Motion to Reinstate Appeal. Dated: May~__~g, 2001 By: Respectfully submitted, Saul Ewing LLP A~ . Joel C. Hopkins, Esquire Supreme Court ID No. 85096 Penn National Insurance Tower 2 North Second Street, 7~ Floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for All Tune & Lube 822481 CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on this2.~th day of May, 2001, I served a tree and correct copy of the foregoing Response to Plaintiffs Motion to Reinstate Appeal, via First Class Mail, postage prepaid, upon the following: Steven C. Courtney, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110~0300 Joel C. Hopkins STEVEN C. COURTNEY, Plaintiff VS. ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2321 CIVIL CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE PLAINTIFF'S APPEAL ORDER AND NOW, this 5-" day of July, 2001, a brief hearing in the above captioned matter is set for Thursday, August 9, 2001, at 10:30 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Steven C. Courtney, Esquire Plaintiff Joel C. Hopkins, Esquire For the Defendant :rlm MAY 0 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVAN STEVEN C. COURTNEY, Plaintiff, V. ALL TUNE AND LUBE, Defendant. No. 2001-02321 Civil Term BRIEF IN SUPPORT OF DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION TO REINSTATE APPEAL Defendant All Tune & Lube ("All Tune"), by and through its attorneys, Saul Ewing LLP, respectfully submits this Brief in Support of Defendant's Response to Plaintiff' s Motion to Reinstate Appeal. I. PROCEDURAL HISTORY AND STATEMENT OF FACTS On or about December 12, 2001, Steven C. Courmey, Esquire, ("Petitioner") filed a civil complaint in Magisterial District No. 09-1-02 against All Tune alleging, inter alia, that All Tune improperly performed work on Mr. Courtney's 1996 Honda Accord. On March 22, 2001, Petitioner, represented by counsel, presented his case to District Justice Robert V. Manlove. On March 23, 2001 judgment was entered in favor of All Tune, and notice of the judgment was provided to both parties by mail. A true and correct copy of the Notice of Judgment in that case is attached hereto as Exhibit "A". On April 20, 2001, Petitioners filed a Notice of Appeal from District Justice Judgment with the Cumberland County Court of Common Pleas, and the Prothonotary assigned that case docket number 01-2321-CV. On May 15, 2001, after 822541 5/25/01 not having received service of a copy of Plaintiff's complaint and verifying that no such complaint had been filed with this Court, All Tune filed a Praecipe to Strike Appeal pursuant to Pa. R.C.P.J.P. No. 1006. On May 17, 2001, the Cumberland County Prothonotary marked the appeal stricken pursuant to Pa. R.C.P.J.P. 1006. A true and correct copy of Defendant's Praecipe to Strike Appeal is attached hereto as Exhibit On or about May 17, 2001, All Tune received a copy of Petitioner's Motion to Reinstate Appeal. Petitioner's motion alleges that the United States Postal Service failed to deliver a copy of Petitioner's complaint, which was allegedly mailed to the Cumberland County Prothonotary on May 8, 2001. Petitioner does not allege that a copy of the Complaint was served upon All Tune's counsel of record, or that it took any of several very basic measures to assure its complaint had been properly filed. Only after All Tune filed a Praecipe to Strike Appeal five (5) days after Petitioner's complaint was to be filed did Petitioner undertake any efforts to determine the status of its alleged filing. II. QUESTION PRESENTED WHETHER PETITIONER'S FAILURE TO TAKE ANY BASIC MEASURES TO VERIFY THE TIMELY RECEIPT OF A MAILED COMPLAINT CONSTITUTES "GOOD CAUSE" EXCUSING ITS FAILURE TO TIMELY FILE A COMPLAINT PURSUANT TO THE PENNSYLVANIA RULES OF CIVIL PROCEDURE. Suggested Answer: No III. ARGUMENT 82254 1 5/25/01 Petitioner has failed to timely file a complaint with this Court and has failed to demonstrate any "good cause" sufficient to excuse his conduct. Rule 1004 of the Pennsylvania Rules governing District Justice procedure in civil cases ("the Rules") provides that an appellant who was the claimant in a district justice action "shall file a complaint within twenty (20) days after filing his notice of appeal." Pa. R.C.P.J.P. 1004A. A pleading that is sent by mail is not considered to be filed until it is received by the appropriate officer, in this case the Cumberland County Prothonotary. Pa.R.C.P.J.P. 205.1. The Rules further provide that upon an appellant's failure to comply with Rule 1004A "the Prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record." Pa. R.C.P.J.P. 1006 (emphasis added). Rule 1006 gives this Court discretion to reinstate an appeal stricken pursuant to Rule 1006 for good cause shown. No hard rule exists for a court to determine whether a Petitioner has demonstrated "good cause" sufficient to disregard that party's failure to adhere to the Rules of Civil Procedure. The Pennsylvania Superior Court has, however, found good cause to exist where a Petitioner has made a good faith attempt to comply with the Rules. See Voland v. Gray, 438 Pa Super. 525,652 A 2d. 935 (1995). Here, Petitioner has alleged no facts that demonstrate a good faith effort to comply with the Rules. Petitioner merely blames its failure to timely file a complaint on the United States Postal Service, who allegedly has yet to deliver the complaint nearly twenty days after it was mailed. Recent appellate authority in this Commonwealth, however, rejects 822541 5/25/01 the notion that a party can blame the mail when other reasonable and relatively effortless actions would have effected the timely filing of a document. In Hanni v. Penn Warranty Corporation, 442 Pa. Super. 160, 658 A.2d 1349 (1995), the Prothonotary struck an appeal after the appellant failed to file proof of service of its notice of appeal within the ten days provided under Pa.R.C.P.D.J. 1005(b). In denying Penn Warranty's petition to reinstate the appeal the trial court noted that the appellant "chose to trust the timeliness of the regular mail during the holiday season, when it could have used an Express Mail service, or brought the proofs of service to the Prothonotary by hand to be docketed within the ten-day limit." Id_.:. at 163,658 A.2d at 1350. The Pennsylvania Superior Court determined that the trial court had not abused its discretion in denying the appellant's petition, and affirmed the trial court's decision. Like the appellant in Hanni, the Petitioner in this case failed to exercise even the most minimal effort to comply with the Rules. Petitioner could have easily taken any number of reasonable and relatively effortless actions to effect service, including hand delivering the appeal to the Prothonotary's office, sending the appeal via a courier (which can guarantee delivery dates) or, perhaps requiring the least amount of effort, calling the Prothonotary to confirm receipt and filing of its complaint. Petitioner also unreasonably failed to take any action after it possessed constructive notice that its filing was not timely received by the Prothonotary. Petitioner's cover letter to the Prothonotary dated May 8, 2001, requested the return of time-stamped copies of its complaint in an enclosed self-addressed stamped envelope. As of May 15, 2001, Petitioner had not received the requested copies, yet failed to 82254 I 5/25/01 inquire as to the status of its filing. It was only after All Tune filed its Praecipe to Strike Appeal that the Petitioner undertook any efforts with respect to its filing. The seven (7) days between Petitioner's mailing its complaint and All Tune's filing on May 15, 2001, provided ample notice that the complaint had not been received by the Prothonotary, and Petitioner's failure to act demonstrates anything but a good faith effort to comply with the Rules. In light of the above, there can be no question that Petitioner did not make a good faith attempt to comply with the Rules and therefore no "good cause" exists to excuse its failure to comply with the Pennsylvania Rules of Civil Procedure. IV. CONCLUSION For the reasons set forth above, Respondent All Tune & Lube respectfully submits that the Petitioner has failed to show good cause sufficient for this Court to reinstate the appeal filed in this matter, and Petitioner's Motion should be denied. Dated: May~, 2001 Respectfully submitted, By: Saul Ewing LLP Hopkins, Esquire Supreme Court ID No. 85096 Penn National Insurance Tower 2 North Second Street, 7~ Floor Harrisburg, PA 17101 (717) 257-7525 Attorneys for All Tune & Lube 822541 5/25/01 Exhibit A COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag Dist NO.: 09-1-02 DJ Name: Hon. A~,e,,: 1901 STATE STREET CAMP HILL, PA Telephone; (717) 761-0583 ATTOP/qEY DEF PRIVATE : JOEL HOPKINS, ESQ. 2N 2ND ST 7TH FL HAERISBU~G, PA 17101 THIS IS TO NOTIFY YOU THAT: Judgment: I~ Judgment was entered for: (Name) ~ Judgment was entered against: (Name) 17011-0000 NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS FCOIIRTNEY, E~Q., STEVEN C ~ 3211 N FRONT ST PO BOX 5300 iHARRISBURG, PA 17110 VS. DEFENDANT: NAME and ADDRESS FALL 'J.'u~l~ ~ LUBE -~ 3 E SHADY LN ENOLA, PA 17025 Docket No.: CV- 0000451- 00 Date F ed: 12/12/00 FOR DEFRNDANT AT.T.,l'lllgT~. alql'~ T,TTRR COIT~TNI~, ESQ., ST]~ ~ in the amount of $ on: (Date of Judgment) ~-~ Defendants are jointly and severally liable. Damages will be assessed on: F-] This case dismissed without prejudice. F~ Amount of Judgment Subject to Attachment/Act 5 of 1996 $ Levy is stayed for days or [] generally stayed. [~ Objection to levy has been filed and hearing will be held: (Date & Time) Amount of Judgment $ o 00 Judgment Costs $ .00 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ .00 Post Judgment Credits Post Judgment Costs Certified Judgment Total $ $ Date: Place: Time: ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF TI~..~.~/;D~/~r~_ T Fi~:IM WITH .YOUR NOTICE OF APPEAL · ..~-0~ (-~ / Date [~ .b*~ ' / )i/ . / / ' ce~if, that this is a true ~' c~~/¢/, the proceedings Ct~aini0g the j0dgmen~. My commission expires first Monday of January, 2006 AOPC 315-99 Exhibit B IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 0~-2321 Civil Term ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J.P. No. 1006, please strike the appeal filed by plaintiff in the above-captioned matter for failure to file a Complaim within twenty days of filing the Notice of Appeal from District Justice Judgment. DATED: May 15, 2001 PRO PROTHY: Appeal stricken pursuant to Pa. R.C.P.J.P. No. 1006. 82002.1 5115101 Respectfully submitted, Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 7~ Floor Harrisburg, PA 17101 Attorney for Defendant IRUE COPY FROM RECORD ~ T~timony wrmreot, I here unto set m~j han~ CERTIFICATE OF SERVICE I, Joel C. Hopkins, hereby certify that on thisZS,th day of May, 2001, I served a tree and correct copy of the foregoing Brief in support of Defendant's Response to Plg~nfifl's Motion to Reinstate Appeal, via First Class Mail, postage prepaid, upon the following: Steven C. Courtney, Esquire 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Joel C. Hopkins 82254 I 5/25/01 STEVEN C. COURTNEY, Plaintiff V ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case NO. 2001-02321 Civil Term PROOF OF SERVICE BY MAIL I, Steven C. Courtney, Esquire, do hereby certify that on April 23, 2001, a copy of the Notice of Appeal filed in the above referenced matter was served upon the following person by certified mail, as is evidenced by the Certified Mail Return Receipt attached hereto as Exhibit All Tune and Lube 3 East Shady Lane Enola, PA 17025 Respectfully submitted/ METZGER, WlC/~SHAM, KNAUSS & ERB, P.C. ~ St~~ourtney, ~re I.D. # 74669 Attorney for Plaintiff Document #: 2042371 Exhibit A · Complete ~tems 1, 2, and 3. Also complete A. Receh~ed by ~fease Print C/ear/y) } 13~:)me~f Delivery · Print your name and address on the reverse ' / so that we can return the card to you. · Attach this card to the back of the mailplece, or o.~J3e front ~f space permits. 3. Ar'd~e Actclreseed to: Ail Tune and Lube 3 East Shady Lane Enola, PA 12025 7099 3400 0016 0533 3135 PS Fon'n 3811, Ju~y 1990 ~t/ If YES, enter deINery address bek)w: 1'3 No I 3{~ Ca, tiffed Mall. r"l Expre-~s Mail [] Registered ~Retum Rec~pt for Merchandise I~ insured Mail [] C.O.D. 4. Restricted Delivery? (Extra Fee) r-I Yes Domestic Return Receipt STEVEN C. COURTNEY, Plaintiff V ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case NO. 2001-02321 Civil Term PROOF OF SERVICE BY MAIL I, Steven C. Courmey, Esquire, do hereby certify that on April 23, 2001, a copy of the Notice of Appeal filed in the above referenced nmtter was served upon the following person by certified mail, as is evidenced by the Certified Mail Remm Receipt attached hereto as Exhibit District Justice Robert Manlove 1901 State Street Camp Hill, PA 17011 Respectfully submitted, M~ZGER,~_~KNAUSS & ERB, P.C. B Steven C. Cou-'~ney, Esquire'~-~ _) 3211 N. Front Street Box 5300 Harrisburg, PA 17110 (717) 238-8187 I.D. # 74669 Attorney for Plaintiff Document #: 204425.1 F4 District Justice Robert Manlove t901 State Street Camp Hill, PA [7011 f-i Inwumd Mall r3 D.O.D. 4. Rest~cted D~tEX~F~e) ~ y~ 7099 3400 0016 0533 3142 UNITED STATES POSTAL SERVICE Fimt-Class Mail P~tage&FeesPa~ USPS Perm~No, G-10 · Sender: Please pdnt your name, address, and ZIP+4 in this box ° Metzger, Wickersham, Knauss & Erb, P 0 Box 5300 Harrisburg, PA 17110-0300 SCC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA STEVEN C. COURTNEY, Plaintiff, No. 04-2321 Civil Term ALL TUNE AND LUBE, Defendant. PRAECIPE TO STRIKE APPEAL TO THE PROTHONOTARY: Pursuant to Pa.R.C.P.J.P. No. 1006, please strike the appeal filed by plaintiff in the above-captioned matter for failure to file a Complaim within twenty days of filing the Notice of Appeal from District Justice Judgment. DATED: May 15, 2001 PRO PROTHY: Appeal stricken pursuant to Pa. R.C.P.J.P. No. 1006. Respectfully submitted,_~ Joel C. Hopkins, Esquire Pa. ID No. 85096 Saul Ewing, LLP 2 North Second Street, 72 Floor Harrisburg, PA 17101 Attorney for Defendant CERTIFICATE OF SERVICE I, Aimee J. Albright, hereby certify that on this 15th day of May, 2001, I served a tree and correct copy of the foregoing Praecipe to Strike Appeal via First Class Mail, postage prepaid, upon the following: Steven C. Courtney 3211 North Front Street P.O. Box 5300 Harrisburg, PA 17110-0300 Aimee J. Alb'fight Secretary to Joel C. Hopkins, Esquire ~2002 I 5/15/01 P_,W1NG=. A~FORNEY5 AT LAW IOEL C. HOPKINS Phone: 717-257-7525 Fax: 717-257-7590 jhopkins~saul.com www.saul.com May 15, 2001 Curtis R. Long, Prothonotary Cumberland County Courthouse One Courthouse Square Carlisle, PA 17013 RE: Steven C. Courtney v. All Tune and Lube Case No. 01-2321-CV Dear Mr. Long: Enclosed please find Defendant All Tune and Lube's Praecipe to Strike Appeal pursuant to Pa.R.C.P.J.P. No. 1006. Please file the original and return a time-stamped copy to our office in the enclosed envelope. Thank you for your anticipated cooperation. By copy of this letter all parties of record have been served with the attached filing. Thank you for your anticipated cooperation. JCH/aja Enclosure cc: Steven C. Courmey Sincerely, .mi Joel C. Hopkins 2 North Second Street, 7~h Floor * Harrisburg, PA 17101-1604 * Phone: (717) 257-7500 * Fax: (717) 238-4622 82003 i 5/15/01 BALTIMORE CHESTERBROOK HARRISBURG NEW YORK PHILADELPHIA PRINCETON WILMINGTON STEVEN C. COURTNEY, Plaintiff ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case NO. 2001-02321 Civil Term CIVIL ACTION-LAW PRAECIPE TO THE PROTHONOTARY: Please amend Plaintiff's Motion to Reinstate Plaintiff's Appeal to include the attached Exhibit "A". Respectfully Submitted, Attorney l%L~o~ 321~1 ~Nort~hfffffn~ P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiff Document #: 196208.1 STEVEN C. COURTNEY, Plaintiff ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case NO. 2001-02321 Civil Term CIVIL ACTION-LAW NOTICE TO DEFEND TO: All Tune and Lube 3 East Shady Lane Enola, PA 17025 NOTICE You have been sued in Court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this Complaint and Notice is served, by entering a written appearance, personally or by attorney, and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint, or document, or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP~ NOTICIA Le han demandado a used en la corte. Si used quiere defenderse de estas demandas expuestas en las paginas siguientes, used tiene viente (20) dias de plazo al partir de la fecha de laaemanda y la notificacion. Used debe presentar una apariencia escrita o en persona o por abogado y archivar en la corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si used no se defienda, la corte tomara medidas y puede entrar una orden contra used sin previo aviso o notificacion y por cualquier queja o alivio que es .pedido en la peticion de demanda. Used puede perder dinero o sus propiedades o otros derechos ~mportantes para used. LLEVE ESTA DEMANDA A UN ABODAGO INMEDIATAMENTE. SI NO TIENE ABOGADO O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONO A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRITA ABAJO PARA AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013 (717) 249-3166 Document #: 134944 STEVEN C. COURTNEY, Plaintiff ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA Case NO. 2001-02321 Civil Term CIVIL ACTION-LAW CIVIL COMPLAINT AND NOW, comes the Plaintiff, Steven C. Courtney, and files the following Civil Complaint against Defendant, All Tune and Lube, and in support thereof avers the following: 1. Plaintiff, Steven C. Courtney, is an adult individual residing at 4177 Nantucket Drive, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Defendant, All Tune and Lube, is averred to be a business entity with a principal place of business located at 3 East Shady Lane, Enola, Cumberland County, Pennsylvania 17025. 3. Plaintiff is, and at all relevant times was, the owner of a 1996 Honda Accord (hereinafter referred to as "Vehicle"). 4. Defendant is, and at all relevant times was, a garage specializing in automotive repairs and maintenance. 5. At all times relevant hereto, Defendant acted or failed to act by and through its duly authorized agents, servants, workmen, and/or employees, acting in the course and scope of their authority, employment and/or agency on behalf of said Defendant. 6. All of the acts alleged to have been done or not to have been done by the Defendant, were done or not done by said Defendant, their agents, servants, workman, and/or employees, acting within the course and scope of their authority, employment and/or agency on behalf of said Defendant. Document #: 206562.1 7. On or about September 25, 2000, the parties entered into an agreement whereby Defendant agreed to perform work on Plaintiffs Vehicle in the nature of, inter alia, checking for the source of an oil leak, checking of gaskets and seals and other possible sources ofoil loss. In exchange for the work to be performed by Defendant, Plaintiff agreed to pay for the reasonable and necessary services provided by Defendant. 9. The aforesaid agreement was reached between the parties following inspection of the Vehicle by Defendant. 10. Shortly thereafter, Defendant began to perform the work on Plaintiff s Vehicle. 11. On or about September 30, 2000, Defendant notified Plaintiff that the repairs to the Vehicle were completed, and the Vehicle was ready to be picked up. 12. At the time that Plaintiff picked up his Vehicle, Defendant stated to Plaintiff that the vehicle had other problems in the nature of vibrations when the Vehicle was ming, the constant presence of the oil and check engine warning lights and the Vehicle may stall, which had not been present when the Vehicle was given to Defendant for the repairs. 13. Defendant stated to Plaintiff that the Vehicle vibrated, could be driven despite the constant presence of the check engine and oil warning lights and that the Vehicle may stall when quickly pulling in front of approaching cars. 14. The work performed by Defendant was very poor, not performed in a good and workmanlike manner, done in a negligent, careless and reckless manner which was the direct and proximate cause of damage to Plaintiff's Vehicle hereinafter stated. Document #: 206562. I 15. More specifically, Defendant failed to properly install or misaligned the time belt whereby causing the values to get bent, improperly setting the balance shaft belt tension, leaving a hose clamp in the engine, and failing to replace bolts and covers. COUNT I Breach of Contract 16. Paragraphs 1 through 15 hereof are incorporated herein by reference as if fully set 17. Defendant agreed to perform the required work and repairs under the t6rms of the aforesaid agreement in a professional workmanlike manner. 18. Defendant's failure to perform the required work and repairs in a proper and professional workmanlike manner constitutes a breach of the agreement. 19. As a direct and proximate result of the breach of the agreement by Defendant, Plaintiff has sustained damages as follows: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of $1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A true and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (d) Market value loss of the Vehicle. Document #: 206562. I WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, damages for delay and/or attorney fees as allowed by law. COUNT II Unfair Trade Practices and Consumer Protection Law 20. Paragraphs 1 through 19 hereof are incorporated herein by reference as if fully set forth. 21. The transactions between Plaintiff and Defendant as described above constitutes one under and subject to the provisions of the Unfair Trade Practices and Consumer Protection Law, 73 P.S.§201-1 et. seq. 22. The services contracted for by Plaintiff with Defendant were for the repair to his vehicle, and Plaintiff has suffered ascertainable loss as a result of the Defendant's use of methods, acts, or practices declared unlawful under said Statute including: a) Engaged in unfair or deceptive acts or practices in the conduct of its business; b) Represented that the goods, services and benefits contracted for by Plaintiff would be provided by Defendant; c) Engaged in fraudulent conduct which created confusion and misunderstanding concerning Defendant's obligation to repair the Vehicle; d) Made false or misleading statements of fact concerning the repair of the Vehicle; e) Failing to complete the iepairs and/or improvements to the Vehicle; f) Making repairs to the Vehicle which were clearly poor and inferior and which require significant repairs and/or measures to complete and correct the work; and Document #: 206562. I g) Misrepresenting to Plaintiff that the work would be properly and competently completed and timely performed. 23. Defendant's conduct is in violation of the Unfair Trade Practices and Consumer Protection Law and is willful for which Plaintiff seek damages as set forth above together with treble damages and such additional relief as provided by said statute or as the Court deems necessary or proper. 24. As a result of the Defendant's violations of the Unfair Trade Practices and Consumer Protection Law, Plaintiff sustained the following damages: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of $1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A true and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (d)Market value loss of the Vehicle. 25. In addition, Plaintiff is entitled to treble damages for the actual damages sustained, costs and reasonable attorney fees in accordance with the Unfair Trade Practices and Consumer Protection Law. WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, damages for delay and/or attorney fees as allowed by law. Document #: 206562. I forth. 26. COUNT III Negli~,ence Paragraphs 1 through 25 hereof are incorporated herein by reference as if fully set 27. Defendant owed a duty to Plaintiffto perform the work in a good and workmanlike manner and not to cause damage to Plaintiffs Vehicle. 28. Defendant breached the duty owed to Plaintiff by failing to perform the work in a good and workmanlike manner and causing damage to Plaintiffs Vehicle. More specifically, Defendant failed to properly install or misaligned the time belt whereby causing the values to get bent, improperl3) setting the balance shaft belt tension, leaving a hose clamp in the engine, and failing to replace bolts and covers. 29. As a result of Defendant's negligence, carelessness and recklessness, Plaintiff has sustained as a direct and proximate result the following damages: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of $1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A tree and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (~t) Market value loss of the Vehicle. Document #: 206362.1 WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, damages for delay and/or attorney fees as allowed by law. COUNT IV Misrel~resentation and/or Fraud 30. Paragraphs 1 through 29 hereof are incorporated herein by reference as if fully set forth. 31. a) b) Defendant represented to Plaintiff the following: That the repairs would be completed by the following work day; That the work performed to the Vehicle by Defendant would be completed in a good workmanlike manner; c) That the Vehicle could be properly operated despite the constant presence of the check engine warning light; d) That the Vehicle could be properly operated despite the constant presence of the oil warning light; That the Vehicle could be properly operated despite the constant vibrations; e) That the vehicle could be properly operated despite the possibility of stalling while pulling out into oncoming traffic. 32. Plaintiffrelied on the aforesaid representations of Defendant. 33. The Defendant knowingly and/or within intent to defraud failed to complete the repairs to Plaintiff's Vehicle. Document #: 206562. I 34. As a direct and proximate result of the misrepresentation and/or fraud of Defendant, Plaintiff sustained the following damages: (a) Out-of-pocket expenses in the amount of approximately $125.00; (b) Cost to repair and/or complete the work in the amount of $1,685.93. A true and correct copy of the invoice for the repairs made to the vehicle is attached hereto, incorporated herein and marked as Exhibit "A"; (c) Expenses for a rental vehicle in the amount of $952.45. A true and correct copy of the rental car invoice is attached hereto, incorporated herein and marked as Exhibit "B"; and (d) Market value loss of the Vehicle. 35. Plaintiff is also entitled to punitive damages because Defendant's actions were intentional with the intent to defraud Plaintiff. WHEREFORE, the Plaintiff, Steven C. Courtney, demands judgment in his favor and against Defendant in the amount of $2,763.38 which is within the arbitration limits, plus costs of suit, interest, damages for delay and/or attorney fees as allowed by law. METZGER, WICKERSHAM, KNAUSS & ERB, P.C. Steven"-~ · Co)/rtne3X~Esquire/' ~ Attorney I.D.S_ ~ 3211 Nort~F~r,,ont Street .....-~..~ P.O. Box 5300 Harrisburg, PA 17110-0300 (717) 238-8187 Attorney for Plaintiff Document #: 206562.1 VERIFICATION I, Steven C. Courtney, do hereby certify that the statements made in the foregoing Complaint are true and correct to the best of my information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa.C.S. §4904 relating to unswom falsification to authorities Dated: Document #: 134944 Exhibit A Exhibit B -- =jl nterPr,se :. "' ~ aoo APPROVAL I AM REJECTING UNINSURED EXT. MOTET COVERAQE UNDER THIS RENTAL OR LEASE AGREE- EXT. FOR MYSELF AND ALL OTHER ~BF. NGERS IN THIS VEHICLE FOR L.O~ES AND DAMAGES ~.IFFERED DOE~ NOT HAVE ANY INSURANCE INVOICE © Entemrise Rent-A-Car Company, lgg9 DEPOSITS STEVEN C. COURTNEY, Plaintiff VS. ALL TUNE AND LUBE, Defendant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 01-2321 CIVIL CIVIL ACTION - LAW IN RE: MOTION TO REINSTATE PLAINTIFF'S APPEAL ORDER AND NOW, this /~?" day of August, 2001, following hearing on the pending matter, the motion of the plaintiff to reinstate appeal is DENIED. Steven C. Courtney, Esquire Plaintiff Joel C. Hopkins, Esquire For the Defendant :rim BY THE COURT,