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Home My WebLink About94-04652 \ I I , o - - aJ .- <( ~. .r 1- c.jl ~ VJ ~ - c;{) € ~ J ( I I I , ! q ~ - 'f' - -- ...,.- '. ,,~() ~_./ :::':~rAIELLO 4 ROUND HILL ROAD aI, CAMP HILL I MAG ~T~~_7~; ~ nJ '''I PA ZPCODI 17011 COMMONWIAL'H 0' "NNlfLVANIA COUI' 0' COMMON 'UAI NOTICE OF APPEAL fROM JUDICIAL DIItIICf DISTRICT JUSTICE JUDGMENT 94-4652 Civil Term COMMONltLlAINo. NOTICE OF APPEAL Nolice I. gi_ that the appellanl has filed In lhe above Caurl of Comman Plea. an appeal from lhe judgment rendered by lhe Di.tricl JUltice on lhe do.. and in lhe co.. menlioned below. A ,...." J July 19. 1994 BLUE SKY COMPUTING CORPORATION ~. DAVID AIELLO cvll)'! 0000232 _ 94 4~ MOOAGtNr lTl9 c...l,"";'u,i<.... C.('Iour.lD.... E<. , Thi. block will be signed ONLY when Ihi. notation i. required under Po. R.cPJP. Ne> If appellant was CLAIMANT (see Pa, R,C'p,J.P, No, l00BB. ., . , Thi. Notice of Appeal. when recei""d by lhe Di.lricl Ju.tice. will operate a. a 1001 (6) In action before Dlstnct Justice, he MUST SUPERSEDEAS to the judgmenl fa< pa....~on in Ihi. ca... FILE A COMPLAtNT within twenty (20) days after filing his NOTICE of APPEAL. {DuImdMIf I SJgooturo 0/ ProthonOlary Of Ocputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was DEFENDANT (soc Pa, R.C.P.J.P, No. IF NOT USED, detach from copy of notice 01 appeal to be served upon appel/oc). PRAECIPE, To Prolhonolary Enler rule upan BLUE SKY 100 1 (7) in action before District Justice. 9~ COMPUTING CORPORATION . appellee(.). to file a complaint in this appeal fUoo 01 OWC1loc(sJ ) wilhin lwenly (20) day. after ~fer enl1Y of judgment of non pn>~ ?'~, ~ SlgnatLtO 01 appe/IiJnI or hIS attorney or agent {Common Plea. Ne> 94-4652 Civil Term RULEI To BLUE SKY CCMPlITIOO CORPORATION _ oI_....s} . appellee{.), (1) You are nolified thaI a rule i. hereby entered upan you to file a complainl in this appeal within twenty (20) day. after the dale of ,",vice of this rule upon you by per.anal .ervice or by certifted or regi.tered mail (2) If you do nol file a complaint within Ihi. lime, a JUDGMENT OF NON PROS Will BE ENTERED AGAINST YOU. ... ":~::.:''''--'''''"'''"..:~4lr1"~W4J-~ .. \.~ AOPC31;l.84 COURT FILE TO BE FILED WITH PROTHONOTARY ,.......;"""'~..h PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (This pfOol 01 se,vice MUST BE FILED WITHIN TEN (10) DA YS AFTER fIImg the notice 01 eppea/. Check epplicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF : II AFFIDAVIT: I hereby swear or affirm that I served o a copy 01 the Nolice 01 Appeal, Common Pleas No. , upon Ihe Dlslrlcl Jusllce designated therein on (da'e olse,vice) , 19~ 0 by personal service 0 by (certilied) (registered) mail, sender's receipt affached hereto, and upon the appellee. (name) , on , 19 n by personal service 0 by (certified) (registered) mail, sender's receiptaltached hereto. o and further that I served the Rule to File a Complain I accompanying the above Notice 01 Appeal upon the appellee(s) to whom the Rule was addressed on , 19_ 0 by personal service 0 by (certified) (registered) mail, sender's receipt altached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , 19_ S,gnatuf8 of affiant Slllnalure 0' olflcl" belole whom allldalnl was made TltI, 0' olllclal My commission expires on ,19_, ~D ~ r- It::.. ~. - ..... cl 4::' C VJ ""'oJ \,,),J .... y y ---~ -:::::::- V'" V-.<:::::> V y ~. '-, \ -a .:r==- = ~ €;' y '-..,~ ~ .~::~ y ,.,.. c:: .., ;T. . '~'l' '. :':'1 ~~' - :;-'": '}. ~~ ~.;.J '.: p' ~ .~~ VI \J'I ~ ::z: - u:> .<::. f (". r- \.-.. t ( NOTICE OF APPEAL COMMONWIALlN 0' 'INNIYLYANIA coun 0' COMMON 'LIAS fROM IUOICIAL OlITelCT DISTRICT JUSTICE JUDGMENT 94-4652 Civil Term -. COMMONPLlASNo. .... NOTICE OF APPEAL Notice i. gi_ that the appellant ha. filed in lhe above Court of Common Plea. on appeal from the judgment rendered by the Di.lriet Ju'liee on lhe dote and in the co.. mentioned be1ov< ":'~ ~D AIELLO ADOIIW or AlftUANT 4 ROUl\D IIILL ROAIJ 01'1 CAI".P HILL I MM> ")'~~_~ ~~ 01 OJ ~... f PA I. COOl I.) 117011 N .July 19. 1994 IN A 1~lt'J RWE SKY COMPUTING CORPORATION f~' DAVID AIELLO cvU 0000232 - 94 LT 19 , c..l. \,oi (u iA... c. ('(0... du.. /:'\ , TN. block will be oigned ONLY when thi. notation i. required under Po. R.cPJP, No. I appellant was CLAIMANT (see Pa, R.C.P.J.P, No, 10088. . . Thi. Notice 01 Appeal. when received by the Di.tricl Ju.tiee, will operate a. 0 1001(6) in action belore Dislrict Justice, he MUST SUPERSEDEAS to the judgment 101 po..e.oion in thi. co... FILE A COMPLAINT within twenty (20) days alter liling his NOTICE 01 APPEAL. , N Sign<Jturo 01 Prothonot.."y Of Oeputy PRAECIPE TO ENTER RULE TO FILE COMPLAINT AND RULE TO FILE (This section 01 lann to bo used ONLY when appel/anI W1IS DEFENDANT (see PD. HC.P.JP, No. 100 I (7) in action bolorc District Justice. IF NOT USED, detach lrom cqJY 01 notice 01 appeal to bo served upon appcl/ee). PRAECIPEI To Prothonotary Enter rule upon . N.Jmc 01 """"''C/5 , ~" '<;<,", ~C11 )withi"t~ ...~, ee(.). to lile 0 complaint in thi. appeal (Common Plea. No. 94-4652 Civil Term 9htiSi~ Sq1.1h10 01 aweblt 01 his alfoinOY 01 agent RULEI To RIJIF. RKV CY'MPlmr-r. CTIRroRl>TlOO N<mo 01 awc//oc(sJ . appellee(.). ( I) You ore notiflUd that 0 rule i. hereby entered upon you to file 0 complaint in this appeal within twenty (20) day. after the dote 01 service of this rule upon you by personal service or by certified 01 registered mail , (2) II you do not file 0 complaint within this time. 0 JUDGMENT OF NON PROS WILL BE ENTERED AGAINST YOU, ,-_J -)(, j ,I If I i . J II ~' J ":r~~;F (3) The dote 01 service 01 thi. rule il .ervice wo. by moil i, the dote 01 moiling. Dote: lIUQ. 18 , 94 .1!,_, -'- AOPC JI;>.lW COURT FILE -- .-,. ---..:.......... ------ - ,------- .. l"".. . ,. - PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAINT (nfl. proo' 0/ .0rv1C0 MUST BE FILED WI r11IN TEN I 10, DA YS AF TER /.Imy "10 nollco 01 ""/Jo<l/. Chock appl/cabl. bo..s) COMMONWEALTH OF PENNSYLVANIA COUNTY OF _ Cumberland - ;.. AFFIDAVIT: I hereby sweor or olthm thotl served QlI a copy ollhe Nollco 01 Appoal2~ornmon Pleas No 94 - 4652 , upon Iho DIslrlcl Justlco deslgnalodlhe,oln 011 (dale 01 somce) August , 19~. 0 by po,sol1al so,vlco I!J by (cerlllr.d) (roglslorod) marl, sonder's recolpt oltochod herolo, ond upon tho oppelloo, (n.,mo) -BlulLSk.y_CorpOJ:4Uon , 011 AlIglIRt 29.19 94 n by personal SorVICC!Xl by lccrlllled) (reglsterod) mall, sender's receipt attached herelo [lg and furlhor lhat I servod Ihe Rule 10 File 0 Complarnl occomponymg Ihe abovo Nollceol Appeal upon Ihe oppellee(s) to whom tho Rulo was addressed 011 August 29 , 19~ 0 hy porsonal sorvlCo KJ by Icorllfled) (reglslered) mall. sunder's receipt attached hereto UK} SIgna,Ufo 0' aU/ant SWORN (AFFIRMED) AND SUBSCRIElED BEFORE ME THIS .J. q+h DAVOF/1Z!fil( rf ,19 q,,L ./ .I T,tle 0' ('ff'C'.JI My c.ommiSSlon expires on .' ~.:; " . :boo c:: n '" c..o . - ..: ,. l>.....', . :- ~ ') ~- .z:.. '" ..... ~ - ~ '.: - - -. - c..o .c. I .~...~;;., P 288 132 279 ~. - .:.'=:t"~':.:n Receipt for Certified Mail No InSUHHlCO Coveragu P,olildcd Dn nul 1I!.;o lor Inlmnatlonal Mall {Suo RUVCfsul .. Blue Sk '''p :d:' Box 52 oration I'to ',',"")' 1 ."i' L ... New Cumberland. 1'...1"1' t.,.".'...,'I.... ',1"".,0.,.",1" 1',-\1' ~ Ih' ,)., ,,-'''. f ,',' ;; th'!!;,,, 1"-"',(1 :""'."...J en b ~\""." "" 1,""- :'....".".., (. b~ Cl) I<.'h....'.".-.\,',.._."",.,'..... Il: IJth.,.,".'....,.'.,.""'r.ll.,.' ~ -, 'ql:., ""-"..1' o ..f..." o CD M E 5 u. '" "- l'nq(J'.I'. u 0.11,' $ :? ~ 9 f/;;,Q!9'/ :VoCk," T If r/.l.-If-(,S~ p, 288 132 28D ~ Receipt for . Certified Mail ... No Insurance Coverage Providod . ~ Do nol use for Inlcrnational M.lil .....,........, ISuc RO\lCfscl '."",., O:J. Robert Manlove ~',...-r ,\,..J .... 1507 Market Street I' () S'.., ~, I'.. 1 :," , .. "'" Cam Hill, PA 17011 $ . .:<9 /. C'O'o ""<.1"'1' (..,p.....l ~ ", ~l"" '.1' ,;.- .", r" f~..", .,: 10 " ! 10-. . "', '., en "d,,'" I', '-I' '.' ,~". I en ", 'o\'h'" ... ['),P, ", ".1, ! - .~ GJ !-ll'h,,,,!""""" C D,It<- ,1'--1'\ "~" . .... ,'.',' ",' " :"1', fill:.: I .;. $ .:(. ~ 0,0".." o CD M E 5 u. '" .. f'u"" I'. ,j. 8/.:2.f/9'-/- ~G."..1t 9if - 't~~J... \\ ,~~ , j j. . . .' ~ \~t t,) \ .j~' ,,., \',( J ..t 1 @ ~ ~ ~ ::l ~ S ~~ ~ ~~ ~..l "'~ o ~ 8~,,"' ~::l OJ! ~ ; = ~ ~ ~ = z - " ./ '0"'" .'). SEP 15 1.-' '.';- , : BLUE SKY COMPUTING 'CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 94-4652 Civil Term CIVIL ACTION - LAW v. .1 ,DAVID AIELLO, Defendant MOTION TO STRIKE APPEAL 1. Plaintiff is Blue Sky Computing Corporation, a <Pennsylvania Corporation, with its address at 126 Pleasant . iView Terrace, New Cumberland, Cumberland County, Pennsylvania. 2. Defendant is David Aiello, with his address at 4 Round Hill Road, Camp Hill, Cumberland County, Pennsylvania. 3. Plaintiff filed a Civil Complaint with a District Justice to Docket Number, CV-0000232-94 on June 13, 1994. On July 19, 1994, a judgment was entered for Plaintiff in the amount of $3,019.39. 4. On August 29, 1994, after receiving no notice of appeal, Plaintiff filed in accordance with Pa. Rules of Civil Procedure (DJP) No. 402(d), a Praecipe for Entry of Judgment in the Court of Common Pleas, Cumberland County, Pennsylvania, to Docket Number 94-4856 Civil Term. 5. On August 29, 1994, Plaintiff received a Judgement Certificate entering Judgment for the Plaintiff to Docket Number 94-4856. A copy of said certificate is attached as Exhibit "A". 6. On August 18, 1994, unknown to Plaintiff, Defendant filed a Notice of Appeal from District Justice Judgment with " " , (the Court of Common Pleas, Cumberland County, Pennsylvania, to !i , Docket Number, 94-4652 Civil Term. However, Defendant failed i: to timely serve Plaintiff. 7. Pursuant to Pa. Rules of Civil Procedure (DJP) No. '1005(h) proof of service of a rule upon the Appellee to file 'a complaint must be made within ten (10) days after filing of the Notice of Appeal. 8. Defendant did not file said Certificate of Service until after Plaintiff filed its Praecipe for Entry of Judgment and received a Judgment Certificate on August 29, 1994. 9. Plaintiff asks that said Appeal be Stricken due to Plaintiff's being given a certificate of judgment prior to the filing of the Certificate of Service, which filing was not timely in accordance with Pa. Rules of Civil Procedure. 10. Plaintiff respectfully requests that the Appeal of the Appellant be stricken for failing to act within the time limits pursuant to Pa. R.C.P. (DJP) 1005 (a) (b). WHEREFORE, Plaintiff asks that the Appeal be stricken and the Judgment be upheld. DATED: / Respectl lly sul;lmitted, /-- vY~ --- Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Supreme Court I.D. No. 32317 2 I, 1 ! , , 1 , ,. 'i . il :~ il ., I .i It h j "l ,l 'I I: EXHIBIT "A" ... I iubgmtnt <!ttrtificatt ~ Common Pleas of Cumberland County, Carlisle, Pennsylvania ~LL~9---.---'--- _,J~4HA;li-;t' ~/~_J __________._______ No,.9~('~4wr 19_ ~. cJJ . 19 ?~ Judgmcnl cnlcrcd ror s..3:J/9.3c( Dalcd_L:.L? .~,. Timc 101 if) f.M, &. .._-----~-_._.__.- ....~- . - --.-- I'ayablc f)lt~ ~& Tax and cnlry paid by /'~ s /~..li' ~;~<- ~ ~ I'r~~ry IIETURN mls I'AI'ER WilEN HIE JllllliMENT IS SATISFIED. / \ \ . : , / {. .~...... .-.''t''',..-. .' ~'..._I...j."L,,-......... :1 'BLUE SKY COMPUTING ,CORPORATION, , : IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 94-4652 Civil Term CIVIL ACTION - LAW !: Plaintiff v. iDAVID AIELLO, I' Defendant :: i CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on Ii this date, I served a true and correct copy of the foregoing MOTION .; i,Ta STRIKE APPEAL, in the above-captioned matter upon the following i; ;iindividual by first class mail, postage prepaid, addressed as , ii :follows: " I il Hubert X. Gilroy, EsqUire Broujos, Gilroy & Houston, P.C. 4 North Hanover treet Carlisle, PA 013 , Ii .1 " " 'j /Barbara Sumple-Sullivan, Esquire I 549 Bridge Street New Cumberland, PA 17070 Supreme Court 1.0. No. 32317 .DATED: 'j t ~ ~ Ii :1 l' ; SEP 15 199~ LAW OH'CII BARBAM SUMPLE-SULLlV AN 548 B"IDQI ST"IIT NIW CUM.IPlLAND, PINNIVLVANIA 17070 PHONI C7171 774-1445 FAX 17171 774-70511 September 15, 1994 Lawrence E. Welker, Prothonotary Cumberland County Courthouse 1 Courthouse Square Carlisle, PA 17013 Re: Blue Skv ComDutina CorD. v. Aiello No: 94-4652 Dear Mr. Welker: Enclosed for filing, please find an original and one (1) copy of a Rule to Show Cause and an ORDER that was inadvertently omitted upon filing of a Motion to Strike Appeal in the above cited matter mailed to your office on September 14, 1994. Your cooperation in attaching the Rule and Order is appreciated, if possible. Very truly YOU1' / k /S~~p{:;t;i;an . BSS/tge cc: Hubert X. Gilroy, Esquire Mr. William Hines, Pres. Blue Sky Corporation Enclosures 2 q\\:,c,-'l ../' ll." Q\u-. .c. \~ I: I' , , , 'I Ii " :BLUE SKY COMPUTING : CORPORATION, 1 Plaintiff v. ,DAVID AIELLO, , Defendant Ii AND NOW, this ,. SEP 15 1994:)1'" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 94-4652 Civil Term CIVIL ACTION - LAW RULE day of , 1994, a Rule is issued upon Defendant to show cause why Plaintiff's :Motion to Strike Appeal should not be granted. Rule is '!returnable wi thin i' " .' , i' days of service. By the Court: J. Ii . 'BLUE SKY COMPUTING : !CORPORATION, ,. v. 'i DAVID AIELLO, , ;: ,. II , Plaintiff Defendant AND NOW, this " SEP 15 1~9~Jr- IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 94-4652 Civil Term CIVIL ACTION - LAW ORDER day of 1994, "Plaintiff's Motion to Strike Appeal is granted. " I, li By the Court: , J. , f , , , i , I ! I , , I l I BLUE SKY COMPUTING . IN THE COURT OF COMMON PLEAS . CORPORATION, . CUMBERLAND COUNTY, PENNSYLVANIA . Plaintiff . . v. . NO: 94-4652 Civil Term . DAVID AIELLO, CIVIL ACTION - LAW Defendant . . MOTION TO STRIKR APPRAL 1. Plaintiff is Blue Sky Computing Corporation, a Pennsylvania Corporation, with its address at 126 Pleasant View Terrace, New Cumberland, Cumberland County, Pennsylvania. 2. Defendant is David Aiello, with his address at 4 Round Hill Road, Camp Hill, Cumberland County, Pennsylvania. 3. Plaintiff filed a Civil Complaint with a District Justice to Docket Number, CV-0000232-94 on June 13, 1994. On July 19, 1994, a judgment was entered for Plaintiff in the amount of $3,019.39. 4. On August 29, 1994, after receiving no notice of appeal, Plaintiff filed in accordance with Pa. Rules of Civil Procedure (DJP) No. 402(d), a Praecipe for Entry of Judgment in the Court of Common Pleas, Cumberland County, Pennsylvania, '. . to Docket Number 94-4656 Civil Term. 5. On August 29, 1994, Plaintiff received a Judgement Certificate entering Judgmen't for the Plaintiff to Docket Number 94-4656. A copy of said certificate is attached as Exhibit "A". 6. On August 16, 1994, unknown to Plaintiff, Defendant filed a Notice of Appeal from District Justice Judgment with filed a Notice of Appeal from District Justice Judgment with I the Court of Common Pleas, Cumberland County, Pennsylvania, to Docket Number, 94-4652 Civil Term. However, Defendant failed to timely serve Plaintiff. 7. Pursuant to Pa. Rules of Civil Procedure (DJP) No. 100S(h) proof of service of a rule upon the Appellee to file a complaint must be made within ten (10) days after filing of the Notice of Appeal. 8. Defendant did not file said Certificate of Service until after Plaintiff filed its Praecipe for Entry of Judgment and received a Judgment Certificate on August 29, 1994. 9. Plaintiff asks that said Appeal be Stricken due to Plaintiff's being given a certificate of judgment prior to the filing of the Certificate of Service, which filing was not timely in accordance with Pa. Rules of Civil Procedure. 10. Plaintiff respectfully requests that the Appeal of the Appellant be stricken for failing to act within the time limits pursuant to Pa. R.C.P. (DJP) 1005 (a) (b). WHEREFORE, Plaintiff asks that the Appeal be stricken and '. the Judgment be upheld. DATED: Respectfully submitted, Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Supreme Court 1.0. No. 32317 2 '~ BLUE SKY COMPUTING . IN THE COURT OF COMMON,PLEAS . CORPORATION, . CUMBERLAND COUNTY, PENNSYLVANIA . Plaintiff . . v. . NO: 94-4652 Civil Term . . . DAVID AIELLO, . CIVIL ACTION - LAW . Defendant . . CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of the foregoing MOTION TO STRIKE APPEAL, in the above-captioned matter upon the following individual by first class mail, postage prepaid, addressed as follows: Hubert X. Gilroy, Esquire Broujos, Gilroy & Houston, P.C. 4 North Hanover Street Carlisle, PA 17013 DATED: . Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, fA 17070 Supreme Court 1.0. No. 32317 -,:r cr ~~. I ,~ '.1 ":> .... ..> r;J ~ ~ _ :S ..l Z 5 ~g ~ ~ i~ UJ~ ~ ~ gg j II) lllj ~ ~Ci : ~ ~ ~ jj?pf I I. ", . I .. I I rl :~ . .. , PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter far the next Arg\Jnent court. CAPTION OF CASE (ent.iIe caption must be stated in full) BLUE SKY COMPUTING CORPORATION, '-? ,-, -< (Plaintiff) c::.. rv <r VB. ,"II " -.....- DAVID AIELLO c..Q 0<:.. (Defendant) No. 4652 Civil 19 94 1. State matter to be argued (Le.. plaintiff's IOOtion for new trial. defendant's denw:rer to CCJlillaint. etc.): Plaintiff's Motion to Strike Appeal 2. Identify counsel who will argue case: (a) far plaintiIf: Barbara Sumple-Sullivan, Esquire ~: 549 Bridge st., New Cumberland, PA 17070 (717) 774-1445 (b) for defendant: Hubert X. Gilroy, Esquire ~s:Broujos, Gilroy & Houston 4 North Hanover st., Carlisle, PA 17013 (717) 243-4574 3. I will notify all parties in writing within two days that this case has been listed for argurent. 4 . Arg\Jnent court Da te: December 7, 19/ . /'/ ; /~~IA- I .R::Irh::lT::I ~nmplp_~1J' 1 iV;:!in RRQuire Attorney far Plaintiff D3ted: October 10, 1994 /' .",.( I ;1 ;; :: il "BLUE SKY COMPUTING CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 94-4652 Civil Term Plaintiff v. CIVIL ACTION - LAW il , CERTIFICATE OF SERVICE : " I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on j' " II this date, I served a true and correct copy of the foregoing : PRAECIPE, in the above-captioned matter upon the following lindividual(s) by first class mail, postage prepaid, addressed as [follows: , Hubert X. Gilroy, Esquire Broujos, Gilroy & Houston, P.C. 4 North Hanover Street Carlisle, PA 17013 '[ " iDATED: " /~j0~Y /, ,~---- liarbara Sumple S:llivan, Esquire 549 Bridge street - New Cumberland, PA 17070 Supreme Court 1.0. No. 32317 Attorney for Plaintiff .. ... ..,.. . .. iii~" 1iW~K:~~~f~~.;.~N~::f:;~!~~L <;c'\;: ,of._ 4t!,f}- "_~,_H,<4\,'_;/""~~~';>"'" r.'" "'T';,; ';, '-GA"U.~"- f'aNiNeva.VANIAT,01. .",',-1.,. 'i'>~ ",I ;;,('J/ '",~(" ,:zM::\\;,~~~i~~!!~~l*~~~'L~~;:'::~' ~1'I'7"a.I~~74}.~I.~~,"< .~~;J:::::r.~j':) t" ..... :IN THE COURT OF COMMON PLEAS :CUMBERLAND COUNTY, PENNSYLVANIA : :NO: 94-4652 CIVIL TERM : :CIVIL ACTION - LAW : BLUE SKY COMPUTING CORPORATION, Plaintiff V DAVID AIELLO, Defendant BRIEF OF DAV7D AIELLO IN OPPOSI~ION TO PLAINTIFF'S MOTION TO STRIKE APPEAL I. Statement of Facts/History Defendant incorporates the Statement of Facts and Procedural History set forth in the Plaintiff's Brief. II. ARGUMENT Plaintiff correctly cites in their Brief the applicable rules dealing with an appeal from a District Justice Judgment. Plaintiff does not contest whether the Notice of Appeal was filed in a timely manner. Judgment was entered at the District Justice level on oIl/7y 7Q 1994. Notice of Appeal was filed on Allall,." 18, 1994 within the applicable thirty (30) day time limit pursuant 'to Pennsylvania Rule of Civil Procedure (DJP) 1002. Plaintiff takes issue with the filing of Proof of Service with the Prothonotary which, pursuant to Pennsylvania Rule of Civil Procedure (DJP) 1005(b), requires that it must be filed within ten (10) days after filing of Notice of Appeal. Plaintiff suggests that the Proof of Service was filed on August 29, 1994 which was more than ten (10) days after the filing of the Notice of Appeal. Defendant admits that the Proof of Service was filed eleven (11) days after filing of the Notice of Appeal. However, a review of the calendar will indicate that August 28, the last day on which to file the Proof of Service, fell on a Sunday. Pursuant to Pennsylvania Rule of Civil Procedure (DJPI 20~ whenever the last day of any time frame falls on a Saturaaiy or Sunday, such day shall be omitted from the computation'. Accordingly, the last date to file the Proof of Service was August 29, 1994. Defendant met the requirements of the J ~h1s rule is essentially identical to pennsylvania Rule ot civil procedure l06(b). t. applicable rule and the Petition to Strike the Appeal should be denied. submitted, Hubert . G roy, Esqu re Broujos, 1roy & Houston, PC 4 North nover Street Carl is , PA 17013 717-243-4574 . r '\ (0 ~ ~ ?: ~ o-l < ~ ~~ e III ~z IE ~ t3~ O::i: Q . ~ ~ iil~ ~ ~ffi : ~ ~ ~ " , ~ I L I.. J '1 I ~I i' i' 'I Ii l \ . '. NOV 23 1994 d,/!.- t, BLUE SKY COMPUTING CORPORATION, IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 94-4652 Civil Term : CIVIL ACTION - LAW Plaintiff v. ,DAVID AIELLO, Defendant BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO STRIKE APPEAL I. Statement of Facts/Historv: Plaintiff originally filed a Civil Complaint with a District Justice on June 13, 1994. On July 19, 1994, a judgment was entered 'for Plaintiff in the amount of $3,019.39. On August 29, 1994, after receiving no notice of appeal, Plaintiff filed a praecipe for Entry of Judgment. On August 29, 1994, Plaintiff received a . Judgment Certificate entering Judgment for the plaintiff at Docket Number 94-4856. Unknown to Plaintiff, Defendant filed on August 18, 1994 a Notice of Appeal from District Justice Judgment to the above captioned docket number. However, no attempt to serve Plaintiff was made withjn ten days of entry of the appeal. Further, no proof of service on Plaintiff was filed wi thin ten (10) days of the appeal date of August 18, 1994. Notice of service of the appeal was not filed until August 29, 1994, after entry of judgment in Plaintiff's favor had occurred Docket No. 94-4856. It is , i Plaintiffs' contention that the appeal must be stricken as being 'i : untimely perfected. " II. ISSUE: I: 1. Did Defendant meet all conditions to timely effectuate its appeal? NO III. DISCUSSION: I, 1. Defendant's Appeal from District Justice Judgment should be stricken due to untimeliness pursuant to Pa. Rules of Civil Procedure (DJP) No. 1005. PA RCP (DJP) 1005 (A) provides (in pertinent part): The aooellant shall bv oersonal service or bv certified or reaistered mail serve a cooy of his notice of aooeal uoon the aooellee and uoon the district iustice in whose office the iudament was rendered. PA RCP (DJP) 1005 (B) further provides that (in pertinent part) : The aooellant shall file with the orothonotarv oroof of service of cooies of his notice of aooeal. and oroof of service of a rule uoon the aooellee to file a comolaint if reauired to reauest such a rule by Rule 1004B. within ten (10) days after filina the notice of aooeal. The present case presents the issue of whether the appeal of 2 Defendant was perfected in a timely manner. While there is no ,specific time limit established for when notice of appeal and rule to file complaint must be served on the appellee, it does require 'that proof of service be filed within ten (10) days of the filing of the notice of appeal. Implicit in this requirement is that the notice and rule should be served within that ten (10) day period. Defendant filed its Notice of Appeal and Praecipe to Enter Rule to File Complaint on August 18, 1994 which appeal Plaintiff acknowledges was timely filed. However, Defendant made no effort to serve same on the Plaintiff until August 29, 1994. Defendant further failed to file with the Prothonotary proof of service until August 29, 1994, which filing was beyond the ten day period from the filing date for the appeal. In the interim, since no timely service was attempted on Plaintiff, Plaintiff has received a valid judgment. To require Plaintiff to continue this action with filing a complaint and the litigation costs after it has already perfected a timely entrance of judgment would result in substantial hardship, expense and prejudice to Plaintiff. Plaintiff contends that this is not a harsh result. Relying on 25A standard Pa. Practice 2d, ~130:152, it is noted that the t"'n (10) day rule "provides a clear line which must be satisfied, absent good cause", In this situation, where no 3 !! i; i; (' I, effort to even serve the Plaintiff Occurred until after the ten !i (10) days expired, the appeal should be stricken and the judgment , las entered to docket No. 94-4856 should be upheld. i, I, ,'i Ii , " :i I: I;/;~Ay , : DATED: ;: i' , i II , '; :1 !, " " I' ) ~~ar~~ Eaqu'ra 549 Bridge street New Cumberland, PA 17070 (717) 774-1445 Supreme Court I.D. No. 32317 Attorney for Plaintiff 4 i: i " , !" !. BLUE SKY COMPUTING : CORPORATION, Plaintiff . IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO: 94-4652 Civil Term CIVIL ACTION - LAW ]1 v. .! DAVID AIELLO, Defendant I: CERTIFICATB OF SBRVICB I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on d !this date, I served a true and correct copy of the foregoing BRIEF IN SUPPORT OF PLAINTIFF'S MOTION TO STRIKE APPEAL, in the above- captioned matter upon the following individual Is) by first class mail, postage prepaid, addressed as follows: DATED: '//;J!7y , Hubert X. Gilroy, Esquire Broujos, Gilroy & Houston, P.C. 4 North Hanover Street Carlisle, PA 17013 J . ~vd- . (Barbara Sumple-Sullivan, Esquire 549 Bridge Street New Cumberland, PA 17070 Supreme Court 1.0. No. 32317 Attorney for Plaintiff BLUE SKY COMPUTING CORPORATION, PLAINTIFF V. DAVID AIELLO, DEFENDANT IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION. LAW 94-4652 CIVIL TERM IN RE: MOTION OF PLAINTIFF TO STRIKE APPEAL BEFORE BAYLEY. J. AND HESS. J. ORDER OF COURT AND NOW, this 6th day of January, 1995, the motion of plalntiff, Blue Sky Computing Corporation, to strike an appeal by defendant, David Aiello, from a judgment of a District Justice, IS DENIED. Edgar B. ayley, J. Barbara Sumple-Sullivan, Esquire - C-.-j"'crfl"<.~'- 1/(",/'1;:;' For Plalntiff .J!,.l: Hubert X. Gilroy, Esquire - e<>t'lr4'! . ~1'"6'.." l-{€':"""" For Defendant :saa JAN i; J I,G Pli '95 :.il I .... , ,:' , l ij',;, ~. ~: (' ,r '., .", I I . I; , i I ~ .. .. ~ d z S ~ to ~ 3 :S Lf") z en :J ti ~ - UI e W;"J ~ iii ~ ~ ~- ~ .J '" t..." II. w Z '" 0 ~gffi -:r ~ :J ii: II. UI" . 0 ...., o(~z o:"~ ,.. ~ ffi -~.= 0: m 0( :l m :l 0 ~ Z (. BLUESKY COMPUTING CORPORATION, Plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 94-4652 Civil Term DAVID AIELLO, Defendant CIVIL ACTION - LAW PRAECIPE TO DISCONTINUE TO THE PROTHONOTARY: Please mark the above-captioned matter settled and discontinued, with prejudice. Dated: May 10, 1995 / Barb a Sumple- u livan, ire Attorney for Plaintiffs 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 I' ~t LUESKY COMPUTING ORPORATION, plaintiff IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA v. No. 94-4652 Civil Term CIVIL ACTION - LAW AVID AIELLO, Defendant CERTIFICATE OF SERVICE I, BARBARA SUMPLE-SULLIVAN, ESQUIRE, do hereby certify that on this date, I served a true and correct copy of the foregoing RAECIPE TO DISCONTINUE, in the above-captioned matter upon the individuals by first class mail, postage prepaid, as follows: Hubert X. Gilroy, Esquire Broujos, Gilroy & Houston, P. C. 4 North Hanover Street Carlisle, Pennsylvania 17013 DATED: May 10, 1995 Esquire /.;,~ ~arbara Attorney for Plaintiffs 549 Bridge Street New Cumberland, PA 17070-1931 (717) 774-1445 Supreme Court I.D. No. 32317 2