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Home My WebLink About05-0631 "COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of Cumberland NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. {)j; -1..6{ U DLfT0z....""'l NOTICE OF APPEAL Notice is given that the appellant has filed in the above Court of Common Pieas an appeal from the judgment rendered by the District Justice on the date and in the case referenced below. NAME OF APPELLANT MAG. 0I8T. NO. Michael 1. Stone ADDRESS OF APPELLANT 093-05 CITY NAME OF D.J. Charles A. Clement Jr. STATE ZIP CODE l' Jan 05 DOCKET No. IN THE CASE OF (Plainliff) Derrick Koontz (Defendant)' DATE OF JUDGMENT " Michael L. Stone SIGNATURE Of' APPELLANT OR ATIORNEY OR AGENT CV-0000304 x~~ This block will be signed ONLY when this notation is required under Pa. RC,P.D,J. No. 100BB. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. If appe/fant was Claimant (see Pa. R.C.P.D.J. No. 1001(6) in action before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after flling the NOTICE of APPEAL. SignatufflofProthonolaryorDeputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be usea ONL Y when appellant was DEFENDANT (see Pa.R,C.P,D,J. No, 1001(7) in action before District Justice, tF NOT USED. aetach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Derrick Koontz appeilee{s). to file a complaint in this appeal Name o(appellee(s} (Common Pleas No, Df -I..- 3 ( ~~~ ) within twenty (20) days after service of rule or suffer ent of judgment of non pros. ~~~ .... Signature of appellant or attorney or agent '/., "7J1.{,...c RULE: To Derrick Koontz . appeilee(s) Name of appellee(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 upon you by personal service Of by certified or registered mail. (2) If you do not file a complaint within this time. a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this mie if service was by mail is the date of the mailing. /J n ~ t:tWJ Date: F b -J ,20as '--- tdzt?.o'>--P ~.~A-a,_ e ruary. --_ --_ Si a~ure of Prorhonota or uty YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 COURl FILE TO BE FILED WITH PROTHONOTARY ~-~ PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This proof of service MUST BE FILED WITHIN TEN (10) DA YS AFTER filmg of/he notice of appeal, Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF : 55 AFFIDAVIT: I hereby (swear) (affirm) thai I served o a copy of the Notice of Appeal, Common Pieas No. , upon the District Justice designated therelJ1 on (dale of service) ,20 o by personal service 0 by (certified) (registered) l11aii, sender's receipt attached hereto, and upon the appellee, (name) , on ,20 o by personal service o by (certified) (registered) mail, sender's receipt attached hereto, (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF 20 Signature of affiant Signature of official before whom affidfNit was made Title of official My commission expires on 20 -i<J ,..,., 0 (':) = iQ ~ C;::;l> "11 "'" \l: ~ ..." :r.,.., f'T1 v:> n1p ~ I -urn "'- -- W 66 r-- ~ \ -..-'1 ) rP -0 .~~~ (), :::J:: '" ~ d .~-l ... )> W :.0 - ..... --< f AOPC 312A - 02 _".c::"~.",...,, '-','" /" ..: COMMONWEALTH OF PENNSYLVANIA COUNTY OF: CUMBERLAND Mag. O;sl. No.: 09-3-05 NOTICE OF JUDGMENTITRANSCRIPT CIVIL CASE PLAINTIFF: NA~EaI'ldAODAESS f"iOONTZ, DERRICK I 708 APPLE DRIVE MECHANICSBURG, PA 17055 L ~ VS. OJ Name: Hon. GAYLE A. ELDER Add"" 507 N YORK ST MECHANICSBURG, PA T.~phOO" (717) 766-4575 17055 DEFENDANT: 'sTONE, MICHAEL L 205 S.WASHINGTON ST MECHANICSBURG, PA 17055 L NAME and ADDRESS I ATTORNEY DEF PRIVATE : JOHN M. EAKIN MARKET SQ BLDG MECHANICSBURG, PA 17055 Docket No.: CV-0000304-04 Date Filed: 11/16/04 ~ at&t.. ....,_ ~ i~ THIS IS TO NOTIFY YOU THAT: . Judgment: IiJ Judgment was entered for: (Name) [i] Judgment was entered against: (Name) FOR PLATNT'IFF 11'00111'1'9: TIRRRTC'lI' . RTOm;:. MTC'HA1U. T. in the amount of $ "i,10;1 4<; on: (Date of Judgment) 1 /14/0<; o Defendants are jointly and severally liable. o Damages will be assessed on: (Date & Time) O Amount of Judgment SUbject to Allachment/42 Pa.C.S. ~ 8127 $ o Portion of Judgment tor physical damages arising out of residential lease $ Amount of Judgment $ 5,019.95 Judgment Costs $- 133.50 Interest on Judgment $ .00 Attorney Fees $ .00 Total $ 5,153.45 Post Judgment Credits $ Post Judgment Costs ' $ ------------ , ------------ Certified Judgment T~tal $ . o This case dismissed without prejudice. 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 JUDGMENTITRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR DISTRICT JUSTICES, 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 ,~LEAS AND NO FURTHER PROCESS MAYBE ISSUED BY THE DISTRICT JUSTICE. 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 DISTRICT JUSTICE IF THE JUDGMENr DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. I certify thatth;s ;s a true and correct copy of the record of the proceedings contai Date istrict Justice JAN 1 It 2005 Date , District Justice My commission expires first Monday of January, 2006 . SEAL AOPC 315-03 DATE PRINTED: 1/14/05 3:16:10 PM seNDeR: _CompIefeltems 1 and/or 2 for additional sel'\lices. _Compete itemS 3, 4a. and 4b. _Print your name and address on the reverse of this form so that we can return this -~- . -Attach this form to the front of the mailpi&ce, or on the back If apace does not permit. -Write "RtItum R8C8ipt RflQuested' on the mailpiece below the article number. -The Retum Receipt wi" show to whom the article was delivered and the date delivered. 3. M'ete Addressed to: A~ 4rti....I,:o 1\.11 Irnh,:or I also wish to receive the tollowing services (tor an extra fee): Ii 1. 0 Addressee's Address .~ 2. 0 Restricted Delivery /Jl Consult postmaster for fee. f' " ., Derrick Koontz"Jsec",: 7 ,8 Apple Drive /. /'--., :' Mechanicsburg, rf'W055 "\'> ': r<:<8" ~\ ?, ~" <'4;>" .c'.' '" '..(:)1 ",0/'" 7002 2410 0004 8736 2138 4b. Service Type o Registered o Express Mail o Return Receipt tor Merchandise 7, Date of Delivery i 'ti.certified a: '" o Insured i o COD :l .e :l o >- .. c .. .s:; I- fJ lo't:; '''' Co> C;:) en ::E "".. ;:0 I -.J o -n ':T!'Tl m_ ."9'-- ::1) ;J (':)r~. -:~~f. ,~1~ ..) , ::-f }.'>< 3! f~"T~ re' B. Addressee's Address (Only il requ8sted and 188 is paid) -0 ::r.: <.11 <.D '02595.97.8.0179 Domestic Return Receipt PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (ThiS proof'Jt service MUST BE FILED WITHIN TEN (10) DA YS A..r:.7ER filing of the notice of iJm:maf Choc/( appiicoNe boxes.} COMMONWEALTH OF PENNSYLVANiA COUNTY OF Cumberland ; S5 AFFIDAVIT: I hereby (swear) (affirm) that' served [Xl a copy of the Notice of Appeal, Common Pleas No. 05-631 ,upon the Distnct Justice H!8rein on (date 01 service) February 8 ,20 05 sender's receipt attached hereto, and upon the appellee, (name) Der"rick Koontz o by personal service IlIJ I)y o by personal servlo) [Xi by 01311, , on February 7 ' 20 05 sender's receipt attached hereto maiL (SWORNJ.(AFFIRMED) AND SUBSCRIBED BEFORE ME THIS. fH. DAY OF .~ .2001-. ~. cjY) --I7j)~ Signature of' official before whom affidavit was made Jtl _t:,-_ Signafure of affien! Titleofofficiaf l4ia"'l51 ~ompl~te ite~s 1,2, and 3. Also complete Its.m 4 If Restncted Delivery is desired. · Pnnt your name and address on the reverse so that we can return the card to you. · Attach this car~ to the back of the mailpiece, or on the front If space permits. 1. Article Addressed to: My commission expires on Charles A. Clement , Distr.ict Justice 400 Bridge Street Old Town Commons New Cumberland, PA Jr. 17070 3. Servict;:' Type i!ftertified Mail D Express Mail o Registered 0 Return Receipt for MerChatldlSE o Insured Mail 0 COD 4. Restricted Delivery? (Extra Fee) DYes AOPC 312A - ()2 2. Article Number (Transfer from service label) PS Form 3811, August 2001 7002 2410 0004 8736 2152 Domestic Return Receipt 102595-D2-M_10: . COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS No. 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. TMEOPO,J..----.------..-------.-----u STATE 'ZIP COOE- NAME OF APPELLANT -I MA:;;;5 CITY ADDRESS OF APPELLANT DATE Of JUDGMENT IN THE CASE OF (Plaintiff) --(Del~ndanlr-- DOCKET No " SIGNATURE OF APPE\.lANT OR AI10RNEY OR AGENT 'I';. . /,! )~) This block will be signed ONLY when this notation is" requiredunder Pa. If appelfant was Claimant RC.P.D.J, No, 10088. 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 SUPERSEDEAS to the judgment for possession in this case. (20) days after filing the NOTICE of APPEAL. Signature of Prothonotary or Deputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (see Pa.R.CP.D.J. No, 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon appellee(s), to file a complaint in this appeal Name of appellee(s) (Common Pleas No. /' ,. ' . c, ' ~_~.------!-.--LL-.\ ) within twenty (20) days after service of rule or ~uffer entff of Judgment of non pros ;' 'Y':&. 7/1.,< -I-t:fl-< ,,: '.." ~7 ,. Signature of appellant or :'Jttomey or agent RULE: To :it::'f ) ,~ ' , appellee(s) -- ---,---- Name ofappeijee(s)~-----._--- (1) You are notified thata rule is hereby entered upon you to file a complaint in this appeal within twenty (20) days after the date of service of this rule upon you by personal service or by certified orJegistered mail. (2) If you do not file a cdmplaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: ;,~} ru ,20 Sighaturo of Prothonotary or'Dbputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTfTRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312.02 COURT FILE c;l ~ -- p ,- r- "^'" ~ ~ ;;: 0 15 "0 '" a """ ~ \ f" s- f 0 c " " 0 t ~ S Q rV 0- (')- Qo C ::l (r :: - -:"" \ '" '" ::..n " 0 ::l C Q.., ~ n- o :; c (') =-0 ':' :: ":l3 n '" 0 ::l ::l ~ ::l '" ":l ~~ '" .. "" " '" ::l 0 lli'- \ ~ <t \ ~ ~ \.:l ~ l).< .... ... U \.:l ~ ~ l).< ~ -::: '1'-< 1, ------ /00 W -l.:- '1-> .;-- IN </l VI -- ~"" ').:::, J "'\!'\ --.S\ \ C) C q, --, -~'.~.. -(. ....,...! '.. i-'n-p~" ~ "-i1r~ "-"2 It. C; ;~~~~ t;~/, ..~ ,.1 ~;:<::>:;,t\ OJ" '::--\ '"9 r-' ~ Cr"\ C,.:J IV :::':~1 .~. i ... DERRICK KOONTZ Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 05-0631 v. MICHAEL L. STONE Defendant PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Please enter my appearance for Michael Stone, defendant. Papers may be served at the address set forth below: John M. Eakin Market Square Building Mechanicsburg, PA 17055 ID 06351 (717) 766-3172 (717) 691-3281 Fax Date: May L ! ' 2005 Whl~L J M. Ea1Q'n . ... - (") <-' 0 = ~:;~ (,:;;;> -n '-" .-1 -- ~~ :;:.,~ -'':::' , - ~~; r1~ ~ .. ..,- ,.d CJ -".' ..s;. \2l) ~ -r ~~. DERRICK KOONTZ Plaintiff, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PA CIVIL ACTION - LAW NO. 05-0631 v. MICHAEL L. STONE Defendant PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Please enter my appearance for Michael Stone, defendant. Papers may be served at the address set forth below: John M. Eakin Market Square Building Mechanicsburg, P A 17055 ID 06351 (717) 766-3172 (717) 691-3281 Fax Date: May L I ' 2005 C~i y ...O-t h\ ,LJ/L J M. EalQ'n. OEnlCK KOONTZ, Plaintif1' : IN THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO.: 05-631 CIVIL TERM MICHAEL L. STONE, Oefendant 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 are 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 YOll. You are warned that jf you fail to do so the case rnay 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 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. CUMBERLAND COUNTY BAR ASSOCIATION 2 UBERTY AVENUE CARLISLE, PENNSYLVANIA 17013 TELEPHONE: (717)-249-3166 AMERICANS WITH DISABILITIES ACT OF 1990 The Court of Common Pleas of Cumberland County is required by law to comply with the Americans With Disabilities Act of 1990. For information about accessible facilities and reasonable accommodations available to disabled individuals having business before the court, please contact our office. All arrangements must be made at least 72 hours prior to any hearing or business before the court. You must attend the scheduled conference or hearing. DERICK KOONTZ, Plaintiff : IN THE COURT OF COMMON PLEAS, CUMBERLAND COUNTY, PENNSYLVANIA v. NO.: 05-631 CIVIL TERM MICHAF:L L. STONE, Defendant COMPLAINT 1 , PlaintitT Derick Koontz is an adult individual who currently resides at 110 North Walnut Street. Mechanicsburg. Cumberland County, Pennsylvania. ') Defendant Michael L. Stone is an adult individual who currently resides at 205 South Washington Street. Mechanicsburg. Cumberland County, Pennsylvania 17055. ], Defendant owns real property located at III South Washington Street, Mechanicsburg. Cumberland County. Pennsylvania. 4, On or about October 2002. Plaintiff and Defendant entered into an oral lease agreement whereby Plaintiff rented the second floor of 111 South Washington Street. Mechanicsburg. Cumberland County. Pennsylvania for a monthly rental fee of $600.00.. 5, Pursuant to the terms of the oral lease agreement the Plaintiff paid the Defendant a security deposit in the amount of $600.00. 6, Following various disputes concerning repairs to the leasehold premises Plaintiff refusal to pay rent to the Defendant. who subsequently filed a Complaint for past rent and for possession of the leasehold premises before the local magistrate, District Justice Gayle Elder. 7. Following a hearing. a judgment was entered on September 30, 2004 which set forth thc amount of rent owed hy the Plaintiff to the Defendant and granted possession of the leasehold prcmises to the Defendant. 8. Pursuant to thejudgment of September 30, 2004 and the ora] instructions given to the parties hy the magistrate. the Plaintiff was to vacate the leasehold premises by October 31, 2004. 9, Pursuant to the judgment entered by the magistrate the Plaintiff paid the Defendant the total amount of damages awarded by the magistrate and made arrangements to move ti'om the leasehold prcmises at 1] 1 South Washington Street, Mechanicsburg, by October 31. 2004. 10, On October 2]. 2004, while Plaintiff was still in the process of removing his personal property from the leasehold premises but before Plaintiff had removed all of his personal property trom the leasehold premises the Defendant exercised self-help measures to evict Plainti ff II. On October 21. 2004. the Defendant removed Plaintiffs remaining personal property from the leasehold premises by tossing same from the second floor to the ground. 12. On October 21. 2004 the weather was steady rain. 13. The property that was thrown from the second floor window was either broken or ruined by the rain. 14. Some items belonging to Plaintiff were moved to another location where Plaintiff had no access, COUNT I THE COVENANT OF OUlET ENJOYMENT 15, Paragraphs I through 14 are incorporated herein as ifset forth at length. J h. The understanding of the judgment and the ruling of the magistrate was that the I'laintitl would vacate the leasehold premises by October 31,2004. 17, The Defendant's actions of seJt:help resulted in a breach of the Plaintiffs quiet enjoyment of the leasehold premises prior to the end of the lease term. 1 R. The Defendant failed to comply with 42 Pa.R.C.P.DJ. 515 in that the Defendant never requestcd an order for possession. 19, The Defendant failed to comply with the 42 Pa.R.C.P.DJ. 5] 6 s1l1ce the Defendant ncver had an order for possession. 20, As a resuil of the Defendant's violation of the Rules of the District Courts the Plaintitlhercin sutTered damages for which he is entitled to recover. 21. As a result of the Defendant's conduct the Plaintiff has suffered the following damages: a. damages for concealed, lost or destroyed items of personal property in the amount of $5.0 19. 95; b, damages for inconvenience. embarrassment, humiliation, and emotional suffering resulting in the amount 01'$5,000.00; and c, damages due to the Defendant's failure to return the Plaintiffs security deposit in the amount 01'$550.00. WHI';REFORE. Plaintitl prays that this Honorable Court will enter damages in his favor and against the Defendant in the amount of $1 0,569.95, plus court costs. COUNT II PUNITIVE DAMAGES 22, Paragraphs 1 through 2 J are incorporated herein as if set forth at length. )' _.1, The Defendant's resort to selt~help eviction was outrageous conduct which resulted in severe emotional distress to the Plaintiff. WHEREFORE. Plaintiff prays that this Honorable Court will enter damages in his favor and against the Defendant in a reasonable amount as punitive damages due to Defendant's outrageous conduct. Respectfully submitted, ~,JJk. R. Mark Thomas, Esquire lD# 4]30] 101 S. Market Street Mechanicsburg, P A 17055 (717) 796-2100 VERIFICATION I verifY that the statements made in the foregoing document are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904, relating to unsworn falsification to authorities. Date: (, -l'~ 'O<\" ~ ~ff~--'- CERTIFICATE OF SERVICE I. R. Mark Thomas, Esquire, hereby certify that I have served a true and correct copy of the within document on the following by depositing a true and correct copy of the same in the U.S. Mail at Mechanicsburg. Pennsylvania, Certified Mail, Return Receipt Requested, Postage Prepaid and by depositing a true and correct copy of the same in the U.S. Mail at Mechanicsburg, Pennsylvania. First Class Mail. Postage pre-paid. addressed-to: Michael L. Stone 205 South Washington Street Mechanicsburg, P A 17055 Date: R. Mark Thomas, Esq. r-> ""' = <f' <- c:: -- ~"'~ - -' q, -1-cl nl~ :S,\:;5 )(') ~,~j. -];1, '~~.~. ~~ ~\ ~; >.-<0 -". ~.A <'2 .r:- :::- ". DERRICK KOONTZ, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA v. NO. 05-631 CIVIL TERM MICHAEL L. STONE, Defendant PETITION FOR SUMMARY JIJDGMENI To the Honorable, the judges of the said Court The petition of Michael L. Stone by John M. Eakin, his attorney respectfully represents. I. ) Your petitioner is the defendant in the above captioned matter. 2.) On January 14,2005, Charles A. Clement Jr, District Justice, entered a money judgment in favor of plaintiff Derrick Koontz and against defendant Michael L. Stone in the amount of$5,153.45, docket number CV-0000304-04 3.) On February 3, 2005, Michael L. Stone filed an appeal numbered 2005-00631 from the district justice judgment pursuant to district justice Rule 1002, et seq. 4.) Plaintiff Derrick Koontz did not file a complaint within 20 days of service of the notice of appeal served on him February 3, 2005 as required by Rule 1004(b ). 5.) On May 10, 2005, judgment of non pros was entered in favor of defendant Michael L. Stone and against plaintiff Derrick Koontz for failure to file a complaint pursuant to Pa R.C.P. 1037(a). 6.) On June 17,2005, plaintiff Derrick Koontz filed his complaint which was 38 days after judgment was entered in favor of defendant. 7.) A copy of the docket entries is attached as Exhibit A. 8.) There is no issue of a material fact which could be established by further evidence or discovery. WHEREFORE your petitioner respectfully prays your Honorable Court to grant a rule directing the plaintiff to show cause if any hf~ has, why the complaint should not be stricken as untimely filed and summary judgment granted in favor of defendant. Respectfully submitted ~h\.~ Jo . . Eakin Mar et Square Building Mechanicsburg, PA 17055 (717) 766-3172 # 06351 VERIFICATION I, John M. Eakin, hereby verify that the statements of fact made in the foregoing instrument are true and correct to the best of my knowledge, information and belief. I understand that any false statements therein are subject to the criminal penalties contained in 18 Pa. C.S. 4904, relating to unsworn falsification to authorities. J1J . ;;~ Jo kin M t Square Building M 'csburg,PA17055 (717) 766-3172 #06351 DERRICK KOONTZ, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYI. V ANIA v. NO. 05-631 CIVIL TERM MICHAEL L STONE, Defendant CERTIFICATE OF SERVICE I John M. Eakin, certify that on July 12,2005 I served a true and correct copy of the attached Order of Court dated July 12, 2005, upon the following by depositing the same in the U.S. Mail, First Class, postage paid, certified mail, return receipt requested at Mechanicsburg, Pennsylvania, addressed to the following: R. Mark Thomas, Esquire 101 S. Market Street Mechanicsburg, P A 17055 Attorney for Derrick Koontzy John . Mark uare Building Mechanicsburg, PA 17055 (717)766-3172 #06351 10410107L12005 Cumberland County Prothonotary's Office PYS510' Civil Case Print. . 2005-00631 KOONTZ DERRICK (vs) STONE MICHAEL L ~age 1 Reference No. . : Case Type.....: APPEAL - DJ Judgment.. .... .00 Judge Assigned: Disposed Desc.: ------------ Case Comments ------------- Filed........ : Time......... : Execution Date Jury Trial. . . . Disposed Date. Higher Crt 1.: Higher Crt 2.: 2/03/2005 1:37 0/00/0000 0/00/0000 ******************************************************************************** General Index Attorney Info KOONTZ DERRICK PLAINTIFF THOMAS R MARK 708 APPLE DRIVE MECHANICSBURG PA 17055 STONE MICHAEL L DEFENDANT EAKIN JOHN M 205 S WASHINGTON ST MECHANICSBURG PA 17055 Judgment Index KOONTZ DERRICK Amount Date Desc 5/10/2005 JUDGMENT OF NON PROE **************************************************'k***************************** * Date Entries * ******************************************************************************** 6/17/2005 - - - - - - - - - - - - - FIRST ENTRY APPEAL FROM DISTRICT JUSTICE JUDGMENT ------------------------------------------------------------------- PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE ------------------------------------------------------------------- PROOF OF SERVICE OF NOTICE OF APPEAL P~D RULE TO FILE COMPLAINT --------------------------------------.----------------------------- PRAECIPE FOR ENTRY OF APPEARANCE - ENTER MY APPEARANCE FOR MICHAEL STONE DEFT JOHN MEAKIN ESQ PRAECIPE FOR ENTRY OF JUDGMENT OF NON PROS AND JUDGMENT ENTERED NOTICE MAILED JOHN MEAKIN ESQ -------------------------------------.------------------------------ COMPLAINT BY PLFF R MARK THOMAS ESQ - - - - - - - - - - - - - - LAST ENTRY 2/03/2005 2/03/2005 3/07/2005 5/10/2005 *******************************************************************************~ * Escrow Information · * Fees & Debits Beq Bal Pvmts/Adi End Bal · ********************************~********~*************************************; APPEAL D.J. 35.00 35.00 .00 TAX ON APPEAL .25 .25 .00 SETTLEMENT 5.00 5.00 .00 AUTOMATION FEE 5.00 5.00 .00 JCP FEE 10.00 10.00 .00 JDMT 9.00 9.00 .00 ------------------------ ------------ 64.25 64.25 .00 *******************************************************************************7 * End of Case Information ' *******************************************************************************, Q c.- ;.:!; 4"""i ~~,c-: n":, -7 ~Z'~ (,'-'. ~ ..<::, r:.n- .....> ~ <J' <- c:. r - - r-> -<) :;>;: <,;f. :(-n (1'?: -<'...._18 '"0-L ',:)\C) :i:.>-\ '~~ 9~ -~",.. ~~ - - >.J:) DERICK KOONTZ, Plaintiff : IN THE COURT OF COMMON PLEAS, : CUMBERLAND COUNTY, PENNSYLVANIA v. : NO.: 05-631 CIVIL TERM MICHAEL L. STONE, Defendant ANSWER TO DEFENDANT'S PETITION FOR SUMMARY JUDGMENT AND MOTION TO STRIKE JUDGMENT PREVIOUSLY ENTERED AND NOW. comes the Plaintiff, Derick Koontz, by and through his counsel, R. Mark Thomas, Esquire, and files this Answer to Defendant's Petition for Summary Judgment and Motion to Strike Judgment Previously Entered: 1, Admitted. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted in part, denied in part. It is admitted that pursuant to the Docket Entry Sheet the appellant, through counsel, filed a praecipe for entry of non pros and that judgment was entered. However, it is denied that any judgment of non pros entered pursuant to Pa.R.C.P. 1 037(a) was validly entered since the appellant did not comply with Pa.R.C.P. 237.]. 6. Admitted. 7. Admitted. 8. Denied, Plaintiff has filed a Complaint which sets forth a meritorious cause of action against the defendant and the cause of action has not been <:xtinguished because appellant did not comply with Pa.R.C.P. 237.1, which requires the appellant to serve upon the plaintiff a ten (10) day notice of intent to seek entry of ajudgment of non pros. WHEREFORE, the plaintiff prays that this Honorable Court will deny the defendant's Petition for Summary Judgment and grant the plaintiffs Motion to Strike Judgment. Respectfully submitted, ;V)(J~ R. Mark Thomas, Esquire ID# 41301 101 S. Market Street Mechanicsburg, P A 17055 (717) 796-2100 CERTIFICATE OF SERVICE I. R, Mark Thomas. Esquire, hereby certify that I am this day serving a copy of the ttwegoing document upon the person and in the manner indicated below, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, by hand-delivering a copy of same to: John M. Eakin, Esq. Attorney for Defendant/Appellant Main & Market Streets Mechanicsburg, P A 17055 ~W'~ R. Mark Thomas, Esquire 101 S. Market St. Mechanicsburg, P A 17055 Date: July] 5,2005 "",\J'- l-"~ \ . ~~. :::,.:... (>:'" ~ o i:" ,..., CC> (:;;.? dO ~ r- -- 0:> r:; )". -z -J _ ~::.t. -<: Q. .-\ ::r;--T\ r""-r: --ort"" :aY <>0 ;:H, :,_ -n ;~t) .:.~. rn ":2~ ,c'b :C<: -0 :$. (~;; t"".) ...p ,. PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten aud submitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. --~---------------_.----------------------------~----------------~---------------------------------------~----------- CAPTION OF CASE (entire caption mllst be stated infll/l) (') S ~p~' ~)": . c/i _/ DERICK KOONTZ (Plaintiff) vs. r~ ~~ ~:f':-' ~C.i c ~ MICHAEL L. STONE (Defendant) No. 05-631 Civil Term 1. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint, etc.): Plaintiff's Motion to Strike Judgment 2. Identify counsel who will argue cases: (a) for plaintiff: R. Mark Thomas (Name and Address) 101 S. Market st., Mechanicsburg, FA 17055 (b) for defendant: John M. Eakin ... (Name and Address) Mark~t square Bldg., Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. R. Mark Thomas 4. Argument Court Date: November 23, 2005 mJ~ Signature R. Mark Thomas Plinl your name Date: 11/02/2005 Del'l';r:.~ ;(,,,,12- Allom,y for Plaintiff ,..., = = c.n Z o <: I W ~ S=!" rnp 339 06 ::::!-ri ;;;.l... :IJ '.:Jo 2m 2. ;<> ::0 .< -a :::lI: .r:- \.t:! DERICK KOONTZ, PLAINTIFF V. MICHAEL L. STONE, DEFENDANT AND NOW, this IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-0631 CIVIL TERM ORDER OF COURT 2"'-- day of November, 2005, the within case is stricken from the November 23, 2005, argument court list. Counsel may relist when ready. R. Mark Thomas, Esquire For Plaintiff John M. Eakin, Esquire For Defendant Court Administrator :sal By the Court, / . / // / ,//. . / /' ~ J(- H~6 (l<~ /I1,<-t~;:J.... )4;- }I: j', ('"..l,~", :f.', ",'! -r)~, f~\J "1,':7 T ~ , C. Co I ,,):' :JJJ~ AU\iH-.', - il ,Xl -~---,- PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and submitted in duplicate) TO THE PROTHONOT AR Y OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. CAPTION OF CASE (entire caption must be stated in full) DERICK KOONTZ (Plaintiff) vs. MICHAEL L. STONE (Defendant) No. 05.-631 Civil Term I. State matter to be argued (i.e., plaintiffs motion for new trial, defendant's demurrer to complaint,etc.): 1 . t'ff' M t. t St "k J d t P a1n 1 s 0 10n 0 r1, e u gmen 2. Identify counsel who will argue cases: (a) for plaintiff: R. Mark Thomas (Name and Address) 101 S. Market st., Mechanicsburg, PA 17055 (b) for defendant: John M. Eakin (Name and Address) Market Square Bldg., Mechanicsburg, PA 17055 3. I will notify all parties in writing within two days that this case has been listed for argument. R. Mark Thomas 4. Argument Court Date: ;2.//7 / ;Xt)O~ :{);W~ Signature R. 11ark Thomas Print your name Date: 01112/2006 Derrick Koontz Attorneyfor Plaintiff ~, '::;;h .~ ,,0 ,-' .' \..~ \....) - DERRICK KOONTZ, PLAINTIFF V. MICHAEL L. STONE, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 05-0631 CIVIL TERM IN RE: "MOTION" TO STRIKE JUDGMENT OF NON PROS AND NOW, this of non pros, IS DENIED. R. Mark Thomas, Esquire F or Plaintiff John Eakin, Esquire For Defendant :sal BEFORE BAYLEY, J. ORDER OF COURT rl- day of March, 2006, the "motion" to strike judgment By the CourY,"' / / ( ((~:"L<> ~ ~r--' / JJ>' DERRICK KOONTZ, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. MICHAEL L, STONE, DEFENDANT 05-0631 CIVIL TERM IN RE: "MOTION" TO STRIKE JUDGMENT OF NON PROS BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., March 7, 2006:-- On February 3, 2005, defendant, Michael L. Stone, filed an appeal from the entry by a then District Justice of a judgment against him in favor of plaintiff, Derrick Koontz. A rule was entered directing plaintiff to file a complaint "within twenty (20) days after the date of service," with notice that "If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY BE ENTERED AGAINST YOU." Proof of service was filed on March 7, 2005, On May 10, 2005, defendant filed a praecipe with the Prothonotary to enter a judgment of non pros against plaintiff "for failure to timely file a complaint.'" On June 17, 2005, plaintiff filed a complaint. On July 12, 2005, defendant filed a petition for summary judgment. On July 18, 2005, plaintiff filed a combined "answer to the petition for summary judgment," and a "motion to strike judgment previously entered." The next docket entry on November 3,2005, is a praecipe by plaintiff listing for argument his motion to strike the judgment. After that argument was stricken, plaintiff, on January 12, 2006, relisted the motion for argument. The parties submitted the matter on briefs, Plaintiff's brief is "in support of motion to strike 1 See Pa, Rule of Civil Procedure 237.1. 05-0631 CIVIL TERM judgment." Defendant's brief is "in support of defendant's motion for summary judgment," although the contents include an argument with respect to the entry of the judgment of non pros. The motion of defendant for summary judgment was not listed for argument, and consequently, not briefed by plaintiff. The motion is not properly before us and it will not be considered, Relief from a judgment of non pros entered under Pa, Rule of Civil Procedure 237,1, is by petition pursuant to Rule 237.3.' Upon such a petition, a Rule would be entered, ultimately leading to the framing of an issue for presentation to the court.' Plaintiff filed a "motion to strike judgment of non pros" in combination with an answer to the petition of defendant for summary judgment. There is no such procedure. Listing the motion for argument does not frame an issue that is ready for disposition. For the foregoing reasons the following order is entered. AND NOW, this ORDER OF COURT '1'tL.-. day of March, 2006, the "motion" to strike judgment of non pros, IS DENIED. , Rule 237,3 provides: (a) A petition for relief from a judgment of non pros or of default entered pursuant to Rule 237,1 shall have attached thereto a verified copy of the complaint or answer which the petitioner seeks leave to file. (b) If the petition is filed within ten days after the entry of the judgment on the docket, the court shall open the judgment if the proposed complaint or answer states a meritorious cause of action or defense. , See Peters Township Sanitary Authority v. American Home and Land Development Company, 696 A.2d 899 (Pa. Commw, 1997). -2- - 05-0631 CIVIL TERM R. Mark Thomas, Esquire For Plaintiff / John Eakin, Esquire For Defendant :sal -3-