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HomeMy WebLinkAbout05-3240COMMONWEALTH OF PENNSYLVANIA COURT OF COMMON PLEAS Judicial District, County Of r COMMON PLEAS No. ocr i5 = ?(() CtL.r NOTICE OF APPEAL fUM? aY.2005 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. 8 iF JUI /V't C This block will be signed ONLY when this notation is required under Pa. R.C.P.D.J. No. 1008B. This Notice of Appeal, when received by the District Justice, will operate as a SUPERSEDEAS to the judgment for possession in this case. sgnam olProt tayor Deputy NOTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT V5 3 1, SI+Aa!? ?. ?(bPE was before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after riling the NOTICE of APPEAL. 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. IF NOT USED, detach from copy of notice of appeal to be served upon appellee. PRAECIPE: To Prothonotary Enter rule upon Name of appelles(s) (Common Pleas No. Signature of appeltant or attomey oragent RULE: To , appellee(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 or by certified or registered mail. (2) It 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 rule if service was by mail is the date of the mailing. Date: 20 Signature&Pmlhor ay or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTI TRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. AOPC 312-02 appellee(s), to file a complaint in this appeal ) within twenty (20) days after service of rule or suffer entry of judgment of non pros. COURT 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) DAYS AFTER filing of the notice of appeal. Check appiicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF ; ss AFFIDAVIT: 1 hereby (swear) (affirm) that I served ? a copy of the Notice of Appeal, Common Pleas No, , upon the District Justice designated therein on (date of service) , 20 ? by personal service ? by {certified} (registered] mad, sender's receipt attached hereto, and upon the appellee, (name) , 20 ? by personal service ? by (certified) (registered) mail, sender's receipt attached hereto. C7 o O (SWORN) (AFFIRMED) AND SUBSCRIBED BEFORE ME "n THIS DAY OF , 20 ! _'ts" &pnature of official G©irm whom afldavd was meta :'-! -?Z Title of o>(crpl -L' C? GS My commission expires on 20 AOPC M 2A - 02 COMMONWEALTH OF PENNSYLVANIA rnl INTY nF- CUMBERLAND 09-3-05 MDJ Name. Hon. GAYLE A. ELDER Add1e' 507 N YORK ST MECHANICSBURG, PA Telephone'. (717 ) 766-4575 17055 ROD L. PONROY 258 CLARE STREET LEMOYNE, PA 17043-2009 THIS IS TO NOTIFY YOU THAT: Judgment: ® Judgment was entered for: NOTICE OF JUDGMENT/TRANSCRIPT CIVIL CASE PLAINTIFF: NAME and ADDRESS rP01[R0Y, ROD L 258 CLARE STREET LEMOYNE, PA 17043-2009 L -I VS, DEFENDANT: NAME and ADDRESS rDISTENFELD, PETER A 43 SYCAMORE DRIVE MECHANICSSURG, PA 17055 L -I Docket No.: CV-0000151-05 Date Filed: 4/12/05 (Name) _pouRQYf Ann T ® Judgment was entered against: (Name) nTA-rjmy4rn n4Tgg A in the amount of $ 1 toa6.6d on: Defendants are jointly and severally liable. M Damages will be assessed on: This case dismissed without prejudice. Amount of Judgment Subject to Attachment/42 Pa.C.S. § 8127 $ Portion of Judgment for physical damages arising out of residential lease $ (Date of Judgment) a L2a /n (Date & Time) Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Total Post Judgment Credits Post Judgment Costs Certified Judgment Total ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY BE ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date dLz Magisterial District Judge I certify That this is a true and correct copy of the record of the proceedings containing the judgment. Date , Magisterial District Judge My commission expires first Monday of January, 2006 . SEAL AOPC 315-05 nATE PRINTED: 6/24/05 1:46:31 PM (. c G' ^i1 ?i >7 ,T1 W ^c. THE LAW OFFICE OF SHANE B. KOPE BY: SHANE B. KOPE, ESQUIRE ATTORNEY I.D. 92207 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 sbkope(&_comcast. net ROD L. POMROY Appellant, V. PETER A. DISTENFELD Appellee. Attorney for Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - CV- 3240 DJ APPEAL CIVIL ACTION - LAW CERTIFICATE OF SERVICE: A copy of the attached Notice of Appeal was mailed by certified mail, return receipt requested to Peter A. Distenfeld, Defendant / Appellee, at his address of record on June 28, 2005. Respectfully Submitted, THE LAW OFFICE OF SHANE B. KOPE By: - SHANE B.I PE Attorney for Appellant Date: June 28, 2005 a ? ?.., -r "° `r. ? '? •' N ?4: ? ?? "? ??: YG ? ? """ ,pf?J THE LAW OFFICE OF SHANE B. KOPE BY: SHANE B. KOPE, ESQUIRE ATTORNEY I.D. 92207 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 sbkope(&comcast.net ROD L. POMROY Appellant, V. PETER A. DISTENFELD Appellee. Attorney for Appellant IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005 - CV - 3240 DJ APPEAL CIVIL ACTION - LAW CERTIFICATE OF SERVICE: A copy of the attached Notice of Appeal was mailed by certified mail, return receipt requested to Gayle A. Elder, District Justice in this matter, at his address of record on June 28, 2005. Respectfully Submitted, THE LAW OFFICE OF SHANE B. KOPE By: SHANE B.KOPE Attorney for Appellant Date: June 28, 2005 s ? L THE LAW OFFICE OF SHANE B. KOPE BY: SHANE B. KOPE, ESQUIRE ATTORNEY I.D. 92207 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 sbkoma)comcast.net ROD L. POMROY Appellant, V. PETER A. DISTENFELD Appellee. Attorney for Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-CV-3240 (DJ APPEAL) CIVIL ACTION - LAW PETITION FOR ALLOWANCE TO APPEAL NUNC PRO TUNC TO THE HONORABLE, THE JUDGES OF THE SAID COURT: AND NOW, comes the defendant, Rod Pomroy, I?y and through his Attorney, Shane B. Kope, Esquire, who respectfully represents that: 1. The petitioner, Rod Pomroy, is an adult individual residing at 258 Clark Street, Lemoyne, PA 17043. 2. The respondent, Pete Distenfeld, is an adult individual residing at 43 Sycamore Drive, Mechanicsburg, PA 17055. 3. This action arises out of respondent's failure to repay a personal loan made to respondent by petitioner in the amount of $3,900.00. 4. The facts leading up to this action or as follows: - - a. In 2001, petitioner offered to purchase a trip, via his PNC credit card, to St. Kits for respondent and his girlfriend in the amount of $3,900.00 in consideration for respondent's agreement to repay petitioner at a rate of $100.00 a month plus interest at a rate of 13% (the rate required by petitioner's PNC credit card at that time), the payment of which was to begin upon petitioners' receipt of the first PNC statement that included the $3,900.00 charge; the respondent agreed to these terms. b. The respondent did not make a single payment for approximately one and half years, at which point he started making payments not according the terms of the agreement, but at rate of $35.00 a week with a consistency that was sporadic at best. c. Due to the irregularity of respondent's payments, which petitioner has refused to supplement, the interest rate on the original $3,900.00 has increased to 27.49%. d. The higher rate coupled with respondent's haphazard payments had left a remaining balance due of $3,639.94 out of $3,900.00 as of April, 2005, approximately four years after petitioner and respondent entered into the original agreement. 5. This action was brought before District Justice Gayle A. Elder for a hearing on May 24, 2005 at CV-151-05. 6. On May 24, 2005, District Justice Elder entered judgment for the petitioner and against the respondent in the amount of $1,986.64. (See Copy of Judgment attached hereto as "Exhibit A"). 7. Petitioner hired present counsel after their initial consultation on June 20, 2005 to appeal said judgment. 2 8. During the consultation, counsel noticed there was not a notice of judgment included in the petitioner's material regarding this matter. Counsel explained to petitioner that he needed a notice of judgment to not only determine the date of judgment here, but also to file the appeal with the Prothontary's Office. 9. Petitioner explained that he would mail the notice immediately. 10. On June 23, 2005, counsel noticed that the notice of judgment had not yet arrived, which seemed unusual considering petitioner lives close to counsel's office. 11. Counsel contacted petitioner, who explained that he had, in fact, mailed the notice to counsel on June 20, 2005. 12. Realizing that the deadline to appeal was approaching quickly, counsel had a representative attempt to personally retrieve a copy of the notice directly from the District Justice Office that issued the notice; however, the District Justice Office would not release the notice, despite proof of representation, as the District Judge was not there to approve the release. 13. Consequently, counsel could not retrieve a copy of the notice until the following day, June 24, 2005, at approximately 1:45 p.m. 14. Counsel informed petitioner concerning the failure to file a timely appeal. 15. The petitioner was also informed of the elements of a Nunc Pro Tune Appeal. 16. Based on this information, petitioner instructed counsel that he wanted to move forward with the appeal. 17. Counsel filed a notice of appeal in this matter on June 24, 2005. (See Copy of Notice attached hereto as."Exhibit B"). 3 18. Counsel sent out a copy of the notice of appeal to respondent on June 28, 2005. (See Certificate of Service attached hereto as "Exhibit C"). 19. Respondent's counsel, Scott A. Stein, Esquire, contacted petitioner's counsel on or around July 1, 2005 to discuss the appeal. 20. Petitioner's counsel explained, inter alia, that petitioner was one day late in this matter and was planning to file an appeal nunc pro tunc; however, both counsel agreed to confirm their respective client's position before either party would move forward with their intentions concerning the appeal. 21. After a short time, on or about July 9, 2005, petitioner's counsel called respondent's counsel to reconfirm his client's intentions on moving forward with appeal, to which respondent's counsel replied that had not yet spoken with his client. 22. During this same conversation, petitioner's counsel explained that, if respondent's counsel prefers, he will wait for respondent to file a praecipe to strike the appeal before filing a nunc pro tunc petition; in addition, petitioner counsel explained that petitioner may also withdraw the appeal and re-file it with a nunc pro tunc petition. Respondent said that he would still prefer to talk to his client. 23. After hearing no response from respondent's counsel, petitioner decided to move forward by filing the current Petition for Allowance to Appeal Nunc Pro Tunc. In the process, petitioner's counsel also decided not to withdraw the appeal in this matter, but to wait until this Court enters an Order on this Petition before moving forward with filing a complaint as required under Rule 1002. 4 24. The petitioner asserts that the District Court's failure to release the notice of judgment to counsel despite proof of representation until one day past the appeal deadline constitutes a breakdown in the operations of the District Court and is the direct cause of the delay in the filing of petitioner's appeal. [See West Penn Power. Co. v. Goddard, 460 Pa. 551, 333 A.2d 909, 912 (Pa. 1975) (An appeal nunc pro tunc should be allowed where the court finds that the party's failure to file a timely notice of appeal was a direct result of fraud or a breakdown in the court's operations)]. 25. Furthermore, considering the above with the postal service's failure here to deliver the notice of judgment to petitioner's counsel in A reasonable amount of time proves that the appeal n this matter was late due to non-negligent circumstances on the part of petitioner; in addition, the petitioner filed the day after the expiration date and notified respondent immediately so as to not prejudice respondent by the delay. See Bass v Commonwealth Bureau of Corrections, et al., 485 Pa. 256, 401 A.2d 1133 (Pa. 1979) (an appeal nunc pro tunc should be permitted where the appellant proves that: (1) the appellant's notice of appeal was filed late as a result of non-negligent circumstances ...; (2) the appellant filed the notice of appeal shortly after the expiration date; and (3) the apellee was not prejudiced by the delay)]. 26. Respondent's counsel does not concur with this Petition. WHEREFORE, the petitioner, Rod Pomroy, requests this Honorable Court grant his Petition and instruct the Prothonotary to (1) validate the current appeal at 2005-CV- 5 3240 to coincide with the date of this Court's Order; and (2) to deny any praecipe to strike the current appeal at 2005-CV-3240- Respectfully Submitted, THE LAW OFFICE OF SHANE B. KOPE By: SHAN .5E Date: July 22, 2005 6 COMMONWEALTH OF PENNSYLVANIA rni IKITV nc• CUMBERLAND Mag. Diet. No.: MDJ Name: Hon. 09-3-05 GAYLE A. ELDER Add,e::: 507 N YORK ST MECHANICSBURG, PA Telephone- (717 ) 766-4575 17055 NOTICE OF JUDG ME NTITRANSCRIPT /? ?+ CIVIL CASE PLAINTIFF: NAME and ADDRESS rPONRO'Y ROD L 7 , 258 CLARK STREET LENOYNE, PA 17043-2009 L J VS. DEFENDANT: NAME and ADDRESS rDISTENFELD PETER A , 43 SYCAMORE DRIVE MECHANICSBURG, PA 17055 L J Docket f40.: CV-0000151-05 Date Filed: 4/12/05 ROD L. PONROY 258 CLARK STREET LENOYNE, PA 17043-2009 THIS IS TO NOTIFY YOU THAT: Judgment: ® Judgment was entered for: (Name) PnwRny, 12nn r. ® Judgment was entered against: (Name) nxsTHWELD- PaTgg A in the amount of $ 1 •9n& - 66 on: ? Defendants are jointly and severally liable. ? Damages will be assessed on: ? This case dismissed without prejudice. Amount of Judgment Subject to ? Attachment/42 Pa.C.S. § 8127 $ Portion of Judgment for physical damages arising out of residential lease $ ANY PARTY HAS THE RIGHT TO APPEAL WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOTARY/CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTICE OF JUDGMENT/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. EXCEPT AS OTHERWISE PROVIDED IN THE RULES OF CIVIL PROCEDURE FOR MAGISTERIAL DISTRICT JUDGES, IF THE JUDGEMENT HOLDER ELECTS TO ENTER THE JUDGMENT IN THE COURT OF COMMON PLEAS, ALL FURTHER PROCESS MUST COME FROM THE COURT OF COMMON PLEAS AND NO FURTHER PROCESS MAY 13E ISSUED BY THE MAGISTERIAL DISTRICT JUDGE. UNLESS THE JUDGMENT IS ENTERED IN THE COURT OF COMMON PLEAS, ANYONE INTERESTED IN THE JUDGMENT MAY FILE A REQUEST FOR ENTRY OF SATISFACTION WITH THE MAGISTERIAL DISTRICT JUDGE IF THE JUDGMENT DEBTOR PAYS IN FULL, SETTLES, OR OTHERWISE COMPLIES WITH THE JUDGMENT. Date , Magisterial District Judge I certify that this is a true and correct copy of the record of the proceedings containing the judgment. Date My commission expires first Monday of January, 2006 . AOPC 315-05 DATE PRINTED: 6/24/05 1:46:31 IPM (Date of Judgment) 5/24/05 (Date & Time) Amount of Judgment Judgment Costs Interest on Judgment Attorney Fees Post Judgment Credits Post Judgment Costs Certified Judgment Total Magisterial Dis w EXHIBIT COURT OF COMMON PLEAS Judicial District, County Of NOTICE OF APPEAL FROM DISTMCT JUSTICE JUDGMENT COMMON PLEAS No. ?jS 3nftJD e. ti, NOTICE OF APPEAL lane a! y, 42005- 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. R.C.P.D.J. No. 100813. This Notice of Appeal, when received by the District Justice, will operate asa SUPERSEDEAS to the judgment for possession in this case. Sonatas of Prolhonotaryor:Deputy before a District Justice, A COMPLAINT MUST BE FILED within twenty (20) days after tiling the NOTICE of APPEAL. PET, INTER RULE TO FILE COMPLAINT AND RULE TO' FILE (This section of form to be used ONLY when appellantioyss DEFENDANT (see Pe.R.C.P.D.J. No. 1001(7) in action before District Justice. IF NOT USED, detach from copy of notice of appeal to be sewed upon appellee. PRAECIPE: To Prothonotary Enter rule upon a ppellee(s), to file a complaint in this appeal Name of WOO N (Common Pleas No. ) wfthin,iwenty (20) days aftot90w oe otrtgl V suffer entry of judgment of non pros. Signature of appellant or attorney or agent RULE: To , appellee(s) Name of appelles(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 or by certified or registered mail (2) If you do not file a complaint within this time, a JUDGMENT OF NON PROS MAY 13E ENTERED AGAINST YOU. (3) The date of service of this rule if service was by mail is the date of the mailing. Date: 20 _ Signature of Prothonotary or Deputy YOU MUST INCLUDE A COPY OF THE NOTICE OF JUDGMENTITRANSCRIPT FORM WITH THIS NOTICE OF APPEAL. EXHIBIT AOPC 312-02 °t"e4NlRT PILE THE LAW OFFICE OF SHANE B. KOPE < c- g4 o BY: SHANE B. KOPE, ESQUIRE vvir ATTORNEY I.D. 92207 ro c? 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 L N Qm comcast.net sbkopeO Attorney for Appellant e ; - ROD L. POMROY IN THE COURT OF COMMON PLEAS Appellant, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005 - CV - 3240 DJ APPEAL PETER A. DISTENFELD CIVIL ACTION - LAW Appellee. CERTIFICATE OF SERVICE A copy of the attached Notice of Appeal was mailed by certified mail, return receipt requested to Peter A. Distenfeld, Defendant / Appellee, at his address of record on June 28, 2005. Respectfully Submitted, THE LAW OFFICE OF SHANE B. KOPE SHANE B.KOPE Attorney for Appellant Date: June 28, 2005 VERIFICATION I, Rod Pomroy, Petitioner in this matter, verify that the statements made in the foregoing Petition for Allowance to Appeal Nunc Pro Tunic are true and correct to the best of my knowledge, information, and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa. C.S.A. Section 4904 relating to unsworn falsification to authorities. Dated: July 25, 2005 Rod Pomroy r '" a - -?? --, -r .T ,,, ,:- ;'' ?; t- . -? r d y RECEIVED ti':.u 0 1 2C09 ROD L. POMROY Appellant, V. PETER A. DISTENFELD Appellee. AND NOW, this IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA : NO. 2005-CV-3240 (DJ APPEAL) CIVIL ACTION - LAW RULE TO SHOW CAUSE Z- 4 day of Pr ., I" , 2005 on petition of ROD POMROY, this Court grants a rule on the Respondent, PETER A. DISTENFELD, to show cause, if any he has, why the Petition for Allowance to Appeal Nunc Pro Tunc should not be granted. RULE RETURNABLE twenty (20) days after service upon the Respondent. Failure to respond will result in the Petition being granted. BY THE COURT i c: VSfiane B. Kope, Esquire For Petitioner „0cott A. Stein, Esquire For Respondent jJ I?? L l G LAW OFFICES OF PETER J. RUSSO, P.C. SCOTT A. STEIN, ESQUIRE PA Supreme Court ID: 81738 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 sstein(@-Pirlaw.com Attorney for Respondent ROD L. POMROY, Appellant V. PETER A. DISTINFELD, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 2005 - CV - 3240 (DJ APPEAL) RESPONSE TO APPELLANT'S PETITION FOR ALLOWANCE OF APPEAL NUNC PRO TUNC AND NOW, comes Appellee, Peter A. Distenfeld, through his counsel, Law Offices of Peter J. Russo, P.C., and responds to Appellant's Petition for Allowance of Appeal Nunc Pro Tunc as follows: Appellant filed a civil complaint against Appellee April 12, 2005 before Magisterial District Justice Gayle A. Elder. 2. A hearing was held in the matter on May 24, 2005 after which judgment was entered on behalf of Plaintiff/Appellant and against Defendant/Appellee in the amount of $1,903.14 plus costs of $83.50 for a total award of $1,986.64. On June 24, 2005, Counsel for Defendant/Appellee contacted Office of Prothonotary to determine if an appeal of MDJ Elder's judgment had been filed. 4. Upon finding out that no appeal had been filed prior to the expiration of the appeal period, Counsel advised Appellee that the judgment had become final. 5. On or about June 24, 2005, Appellee mailed the full amount of the judgment to Plaintiff/Appellant. 6. On or about June 29, 2005, Appellee received a certified letter from Appellant's counsel with a Notice of Appeal of the May 24, 2005 judgment. 7. Petitioner avers in his Petition for Allowance of Appeal Nunc Pro Tunc that he first retained counsel on or about June 20, 2005. 8. The petition further states that Petitioner mailed his copy of the Notice of Judgment to his counsel on June 20, 2005. 9. According to the Petition, counsel for Petitioner does not take any action on the appeal until June 23 when counsel notes that the Notice of Judgment had not yet arrived in his office despite the fact that it "seemed unusual considering petitioner lives close to counsel's office." (see Petition for Allowance of Appeal Nunc Pro Tunc, paragraph 12) 10. At that point in time, counsel realized that the deadline to appeal was quickly approaching and then proceeded to attempt other means of obtaining a copy of the Notice of Judgment. (see Petition, paragraph 12) 11. Petitioner's petition fails to state that any discussion or attempt was made on or after June 20 to determine the deadline date for appeal. 12. Either counsel or petitioner could have taken steps to ensure that the appeal was filed prior to the deadline date with due diligence. 13. With the exception of mailing the Notice on June 20, Petitioner fails to aver what efforts were made to prosecute an appeal prior to June 23 or whether any due diligence was taken by counsel to ascertain the appeal period and obtain the Notice of Judgment. 14. Petitioner rests blame for the untimely filing of the appeal on the District Justice office and the post office. 15. Petitioner argues that there was breakdown in the court's operations when counsel's agent was unable to obtain a copy of the judgment from the Magesterial District Justice's office staff. 16. Petitioner asserts that but for this "breakdown" in the operations of the court or the failure of the post office to deliver local mail in three days, his notice of appeal would have been filed. 17. In Nixon v. Nixon, 329 Pa. 256, 198 A. 154 (1938), and In Re Estate of Purdy, 447 Pa. 439, 291 A.2d 93 (1972), the Supreme Court held that the failure of a court official to send any notice to appellant's counsel of an Order of Court, where such notice was customarily done as a matter of practice, rose to the level of an "extraordinary condition" that a required a finding that a nunc pro tunc appeal was proper. 18. That is not the case in the case at bar, both parties received the notice of judgment from the magisterial district justice well before the expiration of the period for appeal. Petitioner acknowledges having possession of it at the time of his meeting with his counsel on June 20. 19. Despite the fact that Petitioner lives in close proximity to his counsel's office, he mailed his only copy of the Notice of Judgment to counsel. 20. Neither Petitioner, nor his counsel, avers that any attempt was made at or around the date of his meeting with counsel on June 20 to verify or ascertain when the appeal period would expire. 21. Counsel only attempted to exercise due diligence to obtain the judgment and verify the appeal period expiration date occurred three days later on the 30th day of the appeal period. 22. Petitioner further asserts that a petition for appeal nunc pro tune should be granted where there is no prejudice to appellee by the delay. (see Petition for Appeal nunc pro tune paragraph 25 citing Bass v. Commonwealth Bureau of Corrections, et. al.) 23. Respondent asserts that he is prejudiced by the delay of Petitioner in that Respondent, upon finding the judgment to be final, tendered payment in full to the petitioner by personal check in full satisfaction of this matter. 24. The courts have consistently held that the time for taking an appeal cannot be extended as a matter of grace, West Penn Power Co. v. Goddard, 460 Pa. 551, 333 A.2d 909, 912 (Pa. 1975), and that only upon a showing that the petitioner seeking the appeal nunc pro tune could not have reasonably filed a timely appeal because of some breakdown in the court process or fraud prevented him from doing so. 25. Neither of those circumstances exists here. Petitioner knew of the judgment for over 27 days before seeking counsel and had everything within his possession to facilitate a timely appeal. 26. Blame for the failure to file a timely appeal should not now rest with the court process or the post office as the circumstances surrounding petitioners averments for why his appeal was not timely filed do not rise to the level of an " extrordinary condition" necessitating the granting of leave to file an appeal nunc pro tune. WHEREFORE, Respondent requests that this Honorable Court (1) deny the Petition for Allowance to Appeal nunc pro tune; and (2) enter an Order of Court striking the appeal of Petitioner filed at 2005-CV-3240- Respectfully submitted, Law Offices of Peter J. Russo, P.C. By: 4,7?7 Scott A. Stein, Esquire Attorney LD. No. 81738 3800 Market Street Camp Hill, PA 17011 Tel: (717) 591-1755 Fax: (717) 591-1756 Attorney for Defendant Date: ?- p d - o s- LAW OFFICES OF PETER J. RUSSO, P.C. SCOTT A. STEIN, ESQUIRE PA Supreme Court ID: 81738 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 sstein anpidaw com Attorney for Respondent ROD L. POMROY, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PETER A. DISTINFELD, Appellee CIVIL ACTION - LAW NO. 2005 - CV - 3240 (DJ APPEAL) CERTIFICATE OF SERVICE I, Scott A. Stein, Esquire, of the law firm of Law Offices of Peter J. Russo, P.C., hereby certify that on the as day of August 2005, a copy of the foregoing Response to Appellant's Petition for Allowance to Appeal nunc pro tune was sent via First Class U.S. Mail, postage paid, to the following: The Law Offices of Shane B. Kope 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 Attorney for Petitioner VERIFICATION The undersigned does hereby verify that subject to the penalties of 18 Pa. C. S. § 4904 relating to unsworn falsification to authorities, he is an attorney for Respondent herein; makes this Verification based upon the facts as supplied to him by the Respondent, and that the facts set forth in the foregoing pleading are true and correct to the best of his knowledge, information and belief. Dated: ?- a - Cis- Scott A. Stein, Esquire LAW OFFICES OF PETER J. RUSSO, P.C. SCOTT A. STEIN, ESQUIRE PA Supreme Court ID: 81738 3800 Market Street Camp Hill, PA 17011 (717) 591-1755 sstein )pidaw.com Attorney for Respondent ROD L. POMROY, Appellant IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. PETER A. DISTINFELD, Appellee CIVIL ACTION - LAW NO. 2005 - CV - 3240 (DJ APPEAL) CERTIFICATE OF SERVICE I, Scott A. Stein, Esquire, of the law firm of Law Offices of Peter J. Russo, P.C., hereby certify that on the _ day of August 2005, a copy of the foregoing Response to Appellant's Petition for Allowance to Appeal nunc pro tunc was sent via First Class U.S. Mail, postage paid, to the following: The Law Offices of Shane B. Kope 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 Attorney for Petitioner Respectfully submitted, Law Offices of Peter J. Russo, P.C. By: i' Sc t A. Stein, Esquire Dated: r-' 1 I • ey r-? U (^ < P .i ?' !_'l rir-Tl ?' %?? ?? ,? N ? T -? ::? ?' ' ??' ?- ?..t -,' ? ? ` THE LAW OFFICES OF SHANE B. KOPE BY: SHANE B. KOPE, ESQUIRE ATTORNEY I.D. 92207 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 sbkop_@comcast.net ROD L. POMROY Appellant, V. PETER A. DISTENFELD Appellee. Attorney for Petitioner IN THE COURT" OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-CV-3240 (DJ APPEAL) HON. KEVIN A. HESS, JUDGE CIVIL ACTION.- LAW PETITION TO MAKE RULE ABSOLUTE AND NOW, comes petitioner / Appellant Rod L. Pomroy, by and through his attorney Shane B. Kope, Esquire, and Petition this Court to make absolute the Order that it issued in this matter on August 2, 2005, and in support of said Petition states as follows: 1, On July 29, 2005, Petitioner / Appellant filed with this Court a Petition for Allowance to Appeal Nunc Pro Tunc based on a District Justice Judgment that was entered on May 24, 2005. 2 On August 2, 2005, this Honorable Court, by Judge Kevin A. Hess, issued a Rule to Show Cause, ruling Respondent / Appellee to show cause why Petitioner / Appellants Petition for Allowance to Appeal Nunc Pro Tunc should not be granted. A g The order/Rule was returnable 20 days from the dame of service. via First 4. On August 10, 2005 said executed Rule to Show Cause i w Esquire served the Law Respondent 1 Appellee's counsel Scott. A. The certificate of Class Mail upon Hill PA 17011. Offices of Peter J. Russo, 3800 Market St, Camp service is attached hereto and incorporated herein as Exhibit B. (20) days have passed from the date of service of t Rule have 5 More than twenty Appellee, yet Respondent 1 Appellee Show Cause upon counsel for Respondent) App filed no response to the Rule to Show Cause. respectfully requests that WHEREFORE, Petitioner I Appellant Rod L. Pommy, rant this Court make absolute the Rule to Show Cause it issued on August 2, 2005 and g his Petition for Allowance to Appeal Nunc Pro Tunc. Respectfully Submitted, THE LAW OFFICES OF SHANE B. KOPE BY pe Esquire S Date: q/1 l05 ROD L. POMROY Appellant, V. PETER A. DI T ELD Appellee. RULE TO SHOW CAUSE day of L, 2005 on petition of ROD AND NOW, this POMROY, this Court grants a rule on the Res ndent, PETER A. DISTENFELD, to show cause, if any he has, why the petition for Allowance to Appeal Nunc Pro Tunc should not be granted. RULE RETURNABLE twenty (20) days after service upon the Respondent. Failure to respond will result in the Petition being granted. 13Y TK COURT, J. a Shane B. Kope, Esquire For Petitioner Scott A. Stein, Esquire For Respondent RECEIVED hUu 0 1205 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA .................... NO. 2005-CV-3240 (DJ APPEAL) CIVIL ACTIO14 - LAW EXHIBIT TRUE COPY FROM ? RECORD and I here 019 Ifl T aild CERTIFICATE OF SERVICE I, Shane B. Kope, of The Law Office of Shane B. IKope, hereby certify that on August 10, 2005 a true copy of the foregoing Rule to Show Cause and Petition for Allowance to Appeal Nunc Pro Tune was served upon the below-referenced individualat the below listed address by way of first class mail, postage pre-paid: ScottA. Stein, Esquire Law Offices of Peter J. Russo 3800 Market St, Camp Hill, PA 17011 THE LAW OFFICES OF SHANE B. KOPE q. 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 I.D. 92207 Attomey for Plaintiff EXHIBIT a CERTIFICATE OF SERVICE I, Shane B. Kope, of The Law Offices of Shane B. September 1, 2005 a true and correct co K°F'e, hereby certify that on Of the Absolute was served upon the below-referenced individual at'ttl Petition to Make Rule of first class mail, postage Pre-paid: Scott A. Stein, Esquire Law Offices of Peter J. Russo 3800 Market St, Camp Hill, PA 17011 THE LAW OFFICES OF SHANE B. KOPE Shane - sq. 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 I.D. 92207 Attorney for Plaintiff C7 ?' ' i ? - -1i ::i. !.r? '" ? ?- -? ? ? ?';" - " c_ _ n, .. j?..-? <Jt o.. ROD L. POMROY, Appellant vs. PETER A. DISTENFELD, Appellee IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 05-3240 CIVIL IN RE: PETITION FOR ALLOWANCE OF APPEAL NUNC PRO TUNC ORDER AND NOW, this / 4 + day of September, 2005, an on-record argument on the petition for allowance of appeal nunc pro tune is set for Friday, October 21, 2005, at 9:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, Kevin AKHess, J. Shane Kope, Esquire For the Appellant Scott A. Stein, Esquire For the Appellee Am Oq ?? y?i?3v'INIASININ-ld 1t.?:n(_T t lW 10 :+ 14d 61 d3S SON AdvioNll Oud 31Ni Jo 3i1- O-031H ROD L. POMROY, IN THE COURT OF COMMON PLEAS OF Appellant CUMBERLAND COUNTY, PENNSYLVANIA VS. PETER A. DISTENFELD, Appellee CIVIL ACTION - LAW NO. 05-3240 CIVIL IN RE: PETITION FOR ALLOWANCE OF APPEAL NUNC PRO TUNC ORDER AND NOW, this z r day of October, 2005, an on-record argument on the petition for allowance of appeal nunc pro tune set for October 21, 2005, is continued to Wednesday, November 30, 2005, at 9:00 a.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, PA. BY THE COURT, A. Hess, J. Xhane Kope, Esquire For the Appellant /Scott A. Stein, Esquire For the Appellee j :rlm /?? ,, _. + ... ? ri. ..i 1 _'. { /f? I_i _?'.,l THE LAW OFFICE OF SHANE B. KOPE BY: SHANE B. KOPE, ESQUIRE ATTORNEY I.D. 92207 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 sbkopeCDcomcast.net ROD L. POMROY Appellant, V. PETER A. DISTENFELD Appellee. Attorney for Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-CV-3240 (DJ APPEAL) CIVIL ACTION - LAW MOTION FOR CONTINUANCE OF NUNC PRO TUNC HEARING AND NOW, comes the Petitioner/Appellant Rod L. Pomroy by and through his Attorney Shane B. Kope, Esq. and respectfully avers the following: 1. An Appeal Nunc Pro Tunc hearing has been scheduled on November 30, 2005 at 9:30 AM. 2. Petitioner has a vacation scheduled that includes November 30, 2005. 3. Petitioner has had this vacation planned for over a year and will not be able to cancel to appear at the hearing. 4. Respondent/Appellee's Attorney has agreed to concur with this Motion For Continuance. WHEREFORE, Plaintiff respectfully requests that the Appeal Nunc Tunc hearing be continued. Respectfully Submitted, THE LAW OFFICES OF SHANE B. KOPE Kope, Esq. Date: November 8, 2005 CERTIFICATE OF SERVICE I, Shane B. Kope, Esquire, hereby certify that on November 4, 2005, 1 served a copy of the within Motion For Continuance of Nunc Pro Tunc Hearing by depositing same in the United States Mail, first class, postage prepaid in Camp Hill, Pennsylvania, addressed as follows: Scott A. Stein, Esquire Law Offices of Peter J. Russo, P.C. 3800 Market Street Camp Hill, PA 17011 Attorney for llee Sha o e squire Supreme Court I.D. # 92207 LAW OFFICE OF SHANE B. KOPE 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 Tele. (717) 761-7573 Attomey for Appellant (`J \? -I ? ? __? ?- -il 1. _; l'.. C'? l4 .... < j (-1 ???J , r r RECT''1VIF- j NOV , 5 LU0 ROD L. POMROY IN THE COURT OF COMMON PLEAS Appellant, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005-CV-3240 (DJ APPEAL) PETER A. DISTENFELD HON. KEVIN A. HESS, JUDGE Appellee. CIVIL ACTION - LAW ORDER AND NOW, this day of ???2005, it is hereby ORDERED and DIRECTED that the Motion For Continuance of Nuc Pro Tunc Hearing has been ?rnt GRANTED. The new zWefiFW4g will be scheduled on the day of 2005 aC 7& 4 Oa a ' m BY THE COURT: KEVIN A. HESS, JUDGE r C? { ?Uu -i li? THE LAW OFFICE OF SHANE B. KOPE BY: SHANE B. KOPE, ESQUIRE ATTORNEY I.D. 92207 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 sbkope(aD_comcast.net ROD L. POMROY Appellant, V. PETER A. DISTENFELD Appellee. Attorney for Petitioner IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 2005-CV-3240 (DJ APPEAL) CIVIL ACTION - LAW MOTION FOR CONTINUANCE OF NUNC PRO TUNC HEARING AND NOW, comes the Petitioner/Appellant Rod L. Pomroy by and through his Attorney Shane B. Kope, Esq. and respectfully avers the following: 1. An Appeal Nunc Pro Tunc argument has been scheduled on December 14, 2005 at 9:00 AM. 2. This was rescheduled from November 30, 2005 due to Petitioner's scheduled vacation. 3. Petitioner/Appellant's Attorney has a trial scheduled that day at the Dauphin County Court of Common Pleas. 3. This trial cannot be rescheduled. 4. Respondent/Appellee's Attorney has not responded to an attempt to obtain his concurrence. WHEREFORE, Plaintiff respectfully requests that the Appeal Nunc Tunc argument be continued. Respectfully Submitted, THE LAW OFFICES OF SHANE B. KOPE By: 7? B. Ko Esq. Date: December 2, 2005 CERTIFICATE OF SERVICE I, Shane B. Kope, Esquire, hereby certify that on December 2, 2005, 1 served a copy of the within Motion For Continuance of Nunc Pro Tunc Hearing by depositing same in the United States Mail, first class, postage prepaid in Camp Hill, Pennsylvania, addressed as follows: Scott A. Stein, Esquire Law Offices of Peter J. Russo, P.C. 3800 Market Street Camp Hill, PA 17011 Attorne pe e, Esquire Supreme Court I.D. # 92207 LAW OFFICE OF SHANE B. KOPE 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 Tele. (717) 761-7573 Attomey for Appellant DEC (^ o 1005. / r' THE LAW OFFICE OF SHANE B. KOPE BY: SHANE B. KOPE, ESQUIRE ATTORNEY I.D. 92207 4660 Trindle Road, Suite 201 Camp Hill, PA 17011 (717) 761-7573 sbkope(a)comcast.net Attorney for Petitioner ROD L. POMROY IN THE COURT OF COMMON PLEAS Appellant, CUMBERLAND COUNTY, PENNSYLVANIA V. NO. 2005-CV-3240 (DJ APPEAL) PETER A. DISTENFELD HON. KEVIN A. HESS, JUDGE Appellee. CIVIL ACTION - LAW ORDER AND NOW, this / W day of 2005, it is hereby ORDERED and DIRECTED that the Motion For Continuance of Nuc Pro' Tunc Hearing has been 20q9, at /-00 /?. M. GRANTED. The new argument will be scheduled on the 94 day of BY THE COURT: KEVIN A. HESS, JUDGE Curtis R. Long Prothonotary Off ire of the protbonotarp Cumberfanb Cauntp Renee K. Simpson Deputy Prothonotary John E. Slike Solicitor S - 32 q 6 CVIL TERM ORDER OF TERMINATION OF COURT CASES AND NOW THIS 28TH DAY OF OCTOBER, 2009, AFTER MAILING NOTICE OF INTENTION TO PROCEED AND RECEIVING NO RESPONSE - THE ABOVE CASE IS HEREBY TERMINATED WITH PREJUDICE IN ACCORDANCE WITH PA R C P 230.2. BY THE COURT, CURTIS R. LONG PROTHONOTARY One Courthouse Square • Carlisle, Pennsylvania 17013 • (717) 240-6195 • Fax (717) 240-6573