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'.::. ..".... ":.' ..., .. i:' .' , "."" '.." , ' . ,y'....,t:~.. '., .' .' ,.' ::', , ;, '''. ", :, ",;. . ." ':i:::"',:;' , ,,> 'i'( ,".' "~I ;".. . D~ , .... "'.:',::, . ;. ......: . ;';'" ." ',. ':~:.C~. . .:....,., . ,-,~;::" ;'". ','<I/:~.~~i-.if r~'~~?l'~;~:!;mi;! :,\!1~;; ~A .'~, . LA-:omcu h'.'~'~ ~ ~i:V~:,.':1 ~ :' O'BRIEN D!Rlr. .o..sCJfERER '". v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY. PENNSYLVANIA CIVIL ACTION - LAW DAVID CAUTHEN, Plaintiff SUSAN K. DAY, DISTRICT JUSTICE, Defendant NO. 95-1070 CIVIL TERM IN RE: DEFENDAN12S...PRELlMINARY OBJECTION Before HOFFER. J. and BAYLEY. J. ORDER OF COURT AND NOW, ~ 3 ( . 1995. by this Order and Opinion, we notify counsel that the defendant's preliminary objection to dismiss this case for lack of subject matter jurisdiction will be granted unless by praecipe filed within 15 days of today, plaintiff requests this Court to transfer the matter to the Pennsylvania Supreme Court. By the Court, J. Robert L. O'Brien, Esquire 17 West South Street Carlisle, PA 17013 For the Plaintiff District Justice Susan K. Day PO Box 167 Mt. Holly Springs, PA 17065 Howard M. Holmes. Esquire 1515 Market Street. Suite 1414 Philadelphia, PA 19102 For the Defendant e.,.u"-,..l,,.-.l,.!... /11 '31) cl S \l . l' '':> ' District Justice Paula P. Correal 1 Courthouse,~ql.!ar~ I" 1r,~ Carlisle. PJ\, 17013 . DAVID CAUTHEN, Plaintiff v. : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW SUSAN K. DAY, DISTRICT JUSTICE, Defendant NO. 95-1070 CIVIL TERM Before !::IOFFER, J. and BAYLEY. J, QeINlQH HOFFER, J.: This case Involves the authority of the Court of Common Pleas to Issue a writ of mandamus against a district justice compelling execution of a judgment. The operative facts In this case may be summarized as follows: The plaintiff asserts that In November of 1994, District Justice Paula Correal entered a judgment In the amount of $365.50 In favor of the plaintiff against Mr. Dennis Ness (hereinafter Correal Judgment). The plaintiffs complaint further alleges that the Correal judgment arose from Ness's failure to fulfill his obligations under a contract for the sale and purchase of a mobile home. (Complaint ~ 3.)1 In attempting to lThls judgment was executed and the amount In question was collected by means of an execution sale which produced a surplus of approximately $500. District Justice Correal currently holds this amount In escrow pending resolution of this matter. 95.1070 CIVIL TERM acquire possession of the property In question, the plaintiff leamed of a judgment lien on the mobile home entered by District Justice Day In favor of Property Management Inc. (hereinafter Property Management Judgment). The plaintiffs complaint alleges, that In consideration for the plaintiff's payment of $1,300.00, Property Management assigned Its judgment to the plaintiff. (Complaint 11 4.) Plaintiff further avers that he attempted to execute the Property Management Judgment In the Issuing office of District Justice Day, but that Day refused, and continues to refuse to execute the judgment. The plaintiff has filed an action In mandamus seeking execution of the judgment. For her part, the defendant, District Justice Day, averts that the District Justice Rules of Civil Procedure do not recognize holders In due course and, therefore, that she was not authorized to execute the Property Management Judgment. (Preliminary Objections 11 11.) Additionally, the defendant has filed preliminary objections pursuant to Pa. R.C.P. 1028 (a)(I), moving to dismiss the plaintiffs complaint for lack of subject matter Jurisdiction. (Preliminary Objections 11 16.) In the altematlve, the defendant requests that this Court transfer the plaintiffs action to the Pennsylvania Supreme Court pursuant to 42 Pa.C.S.A. ~ 5103(a). We address these preliminary objections. 2 95-1070 CIVIL TERM Discussion Initially, we note that a preliminary objection averring lack of subject matter Jurisdiction Involves a determination of whether a court has Jurisdiction over the subject matter of an action. 2 Goodrich Amram 2d ~ 1017(b):7, at 249 (1991). "The test In such a situation Is the competency of [the] court to determine controversies of the general class to which [the case] belongs. .!.d. With regard to the subject matter Jurisdiction of this Court in the Instant case, the defendant asserts that jurisdiction does not properly reside with the Court of Common Pleas, but with the Pennsylvania Supreme Court. In addressing this allegation we Initially note section 931 of the Judicial Code, which provides In pertinent part: (a) General Rule. Except where exclusive original jurisdiction of an action or proceeding Is by statute . . . vested In another court of this Commonwealth, the courts of common pleas shall have unlimited original Jurisdiction of all actions and proceedings Including all actions and proceedings heretofore cognizable by law or usage In the courts of common pleas. 42 Pa.C.S.A. ~ 931. Thus, Jurisdiction lies with this Court uniess exclusive original Jurisdiction is vested In another court. Pursuant to sections 716 (a) and (b) of the Judicial Code, the 3 , 95.1070 CIVIL TERM Commonwealth Court possesses exclusive original Jurisdiction over suits "against the Commonwealth govemment. Including any officer thereof. acting In his official capacity." 42 Pa.C.S.A. ~ 761 (a). (b). In addressing the Issue of whether suits against district justices fall within the purview of section 761. the Commonwealth Court has held that "since district Justices are Commonwealth officers. . . the plain language of section 761 (a)(1) vests [the Commonwealth] Court with Jurisdiction over a district justice." LmPer v. County of Alleghenv, _ Pa. Commonwealth -' 654 A.2d 11 (1994). Thus, original Jurisdiction In actions Involving district justices is vested In the Commonwealth Court. Although the analysis to this point demonstrates that this Court may not exercise Jurisdiction In this matter, the defendant's request for a transfer to the Pennsylvania Supreme Court necessitates further examination of the Jurisdictional provisions of the Judicial Code. In this portion of the analysis. we are again guided by the holding of the Commonwealth Court In the ~ case, supra. The Leiber case Involved a factual situation, similar to the one before us. In which the plaintiff flied a complaint In mandamus against a district Justice. ~. _ Pa. Commonwealth _. 654 A.2d at 12. The trial court found that It lacked original Jurisdiction over the dispute and transferred the matter to the Commonwealth Court. lQ. at 13. 4 95.1070 CIVIL TERM In examining the issue of whether the Commonwealth Court had original jurisdiction In the matter, that Court examined the provisions of section 721 of the Judicial Code, which provide that the Commonwealth Court has original jurisdiction In cases of mandamus where such relief is ancillary to the Court's appellate Jurisdiction. 42 Pa.C.S.A. ~721. Noting that there was no appeal pending In the Commonwealth Court at the time that the writ of mandamus was requested, the Court concluded that it did not have jurisdiction to Issue a writ of mandamus. ld.. at 14. Additionally, the Court held that the Pennsylvania Supreme Court had exclusive Jurisdiction to Issue the writ of mandamus. jg. at 14. In accordance with the reasoning set forth in Lieber, we find that transfer should be made to the Supreme Court. At oral argument In this case, plaintiffs counsel suggested that It was not financially feasible for his client to pursue this mandamus action In the Pennsylvania Supreme Court. However, that course of action should not be necessary. This Court agrees with the resolution suggested by Judge Bayley In his Concurring Opinion attached hereto, and we encourage the District Justice to follow that reasoning. 5 DAVID CAUTHEN, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. SUSAN K. DAY, DISTRICT JUSTICE, DEFENDANT 95.1070 CIVIL TERM CONCURRING OPINION BAYLEY, J. I agree with Judge Hoffer that we are bound by LeIber v. County of Allegheny, _ Pa. Commw. _, 654 A,2d 11 (1994). Under that decision, this Court cannot issue a writ of mandamus to a District Justice. It Is worth noting, however, that the execution of a judgment for the payment of money rendered by a District Justice Is governed by Rule 401 et~. of the Rules of Civil Procedure for District Justices. Rule 401 sets forth the following definitions: As used In this chapter: (1) "Plaintiff' means the holder of the judgment. (2) "Defendant" means a party against whom the judgment has been rendered. . Obviously, a "plaintiff," as defined, Is broader than simply a party to whom a judgment has been Issued. The exact definitions of "plaintiff' and "defendant" used in Rule 401 are used in Pennsylvania Rule of Civil Procedure 3101 (a) applicable to the enforcement of money judgments for the payment of money. As summarized in the commentary of Goodrich Amran 2d ~ 3101 (a): (2): The word .plalntlff' means the person who has the right at law to enforce the judgment. This definition Is more In accordance with NORTH MIDDLETON TOWNSHIP CARLISLE BOROUGH PAULA P. CORREAL DISTRICT JUSTICE 09-2-01 EAST WING. COURTHOUSE 1 COURTHOUSE SQUARE CARLISLE. PA 17013 June I, 1995 County 01 Cumbe~and ome. (717) 243-0292 The Honorable George E. Hoffer Cumberland County Court House 1 Court House Square - 4th Floor Carlisle, Pa. 17013 Re: David Cauthen vs Susan K. Day - District Justice 95-1283 Civil Denr Judge Hoffer: Please be advised that this Court is currently holding in escrow a total of $1,304.00. This nmount represents proceeds from execution sale held on February 18, 1995. The proposed distribution of said funds is as follows: David Cauthen----------$54l.57 Dennis Ness------------$557.43 Constable Charles York-$205.00 $1,304.00 I believe the only portion in dispute is the amount Dennis Ness is to receive. It is my intention to continue to hold all the sale proceeds in escrow until Cauthen vs Day is resolved. I would apprecinte if you will send me a copy of the order when the case is decided. Any questions. please feel free to contact me. Yours tru~-,_)",-- e ( ,) .' C. . '/",~-1 <t'-C.." .J (r; liV < . , Pnula P. Correal District Justice PPC/rmm ) ,.J. .... J '....1 ~ 5 P,. n <> ,,:, 'j, 7- J .. C ~ .~ ~ . ~~. .f _ leI'~. '~,...1 (.1 'J' '. .n- ~ ~~:;~:; ) \: ~,;:~ ".:.: 3~ I ld- ~ "~ ,;).... .1: 0_ ,~. 1-.... :;> ~~f.:. ~ r- ~ - - - ... ... ::c x Z rn p:: OA.c ~ 1&1 ~Z~ ~ E-< 1&1 a ~ ~ o.c.c A , U ..:I ..:I u..:l> Z Z 'H H c...gj~ ~ 1&1", ><E-<~ I > ;:.:'" .crnl': H o~~ E-<... AP", Z U ~ ~ I ~ Z P~ "''0 0 E-<uZ H .cl': . tCE-<1': H P:: 1&1 U... > E-< Pc...p.. E-< UOl U it ~ ~ 0 Z A'" ZH'" .c S lQ ~ uO , H H" .cp::0I >< .c >p.. mE-< A ..:I I&IrnE-< ..:I .c ern H I ~ I ;:.:.cE5 p.. A rnH > I E-<I&I X A H In ..:10 0 U 0\ 0 Zp..u U H 0 Z . . . . . , . \' o 'J'o '1 ~ DAVID CAUTHEN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW V. SUSAN K. DAY, DISTRICT JUSTICE, Defendant NO. 95- ;0 '1,-, CIVIL TERM COMPLAINT IN MANDAMUS 1) Plaintiff is David Cauthen, an adult individual, residing at 134 B Street, Carlisle, Pennsylvania, 17013. 2) Defendant is Susan K. Day, a District Justice, with offices at 229 Mill Street, Box 167, Mt. Holly Springs, Pennsylvania, 17065. 3) On or about November 2S, 1994, Plaintiff had a judgment issued by District Justice Paula P. Correal in his favor and against Dennis Ness of Lot #1S, Spring Garden Estates, Carlisle, Pennsylvania, 17013, in the amount of $365.50. This claim arose from Mr. Ness's failure to perform obligations under a contract for the sale and purchase of a mobile horne, or to pay the fair rental value thereof as demanded. Plaintiff, subsequent to the appeal period, requested that he be given possession of the property, only to find in dealing with Constable York that that property had been secured by virtue of a judgment against Dennis Ness arising in favor of Property Management, Inc., and issued by Defendant District Justice Susan K. Day's office. The amount of that judgment was $7S0.00 plus court costs. 4) Plaintiff, realizing that his mobile home was on land and subject to being removed therefrom due Mr. Ness's failure to pay the lot rent negotiated with Property Management, Inc., and agreed to a 1 ; settlement Mr. Ness's account. Plaintiff agreed to pay Property Management, Inc., the sum of $1,300.00 and to take an assignment of all its interest in the judgment against Dennis Ness. 5) On or about February 2, 1995, Plaintiff's attorney, Robert L. O'Brien, Esquire, appeared at District Justice Correal's office to pay the costs for execution and file the necessary paperwork to begin the execution process. 6) At or about that same time, Attorney O'Brien asked that plaintiff begin the execution process on his assigned judgment by filing the request directly with Defendant District Justice Day's office. 7) Plaintiff avers that, pursuant to the Rules of civil Procedure governing actions before District Justices, pursuant to Rule 401, he had every right to proceed with the execution process. S) Defendant refused and continues to refuse to sign the paperwork in order to effect the execution. 9) It is averred that, had Defendant signed the execution, the plaintiff would have had a claim against the property of Dennis Ness pursuant to Rule 416(d). 10) As of February 2S, 1995, Attorney O'Brien had sent, on two separate occasions, a photo copy of a page from standard PA Practice in reference to his understanding of Plaintiff's rights to proceed as the assignee and holder of the Property Management, Inc. claim. This information had been sent the same day as requested by Defendant, 2 thereafter, plaintiff hand delivered a copy of it to Defendant's office. 11) On or about February 27, 1995, Attorney o'Brien, received a call from plaintiff indicating that the Defendant's office had been told by an Attorney Morgan that the procedure requested was not lawful. 12) Attorney o'Brien called Attorney James Morgan and discussed with him the legal interpretation of the rules. Attorney Morgan indicated that his recollection of conversations of some 20 years ago was that this was not permitted. 13) When Defendant continued to refuse to honor the legal request by the Plaintiff, as holder of the judgment, Plaintiff, on February 27, 1995, requested that his counsel, Robert L. O'Brien, Esquire, contact Property Management, Inc., to see if he would arrange to appear as attorney for property Management, Inc., in the collection of judgment in its name. Robert L. o'Brien, Esquire contacted property Management, Inc. and received an authorization on February 2S, 1995 at about 12:30 P.M. to initiate the paperwork to have an Order of Execution entered with his appearance as its attorney. 14) On February 2S, 1995, between the hours of 1:30 P.M. and 2:30 P.M., Attorney O'Brien, appeared in the Defendant's offices and paid the money and signed the request to initiate the execution form. At or about 1:45 P.M., February 2S, 1995, he requested of the clerk in Defendant's office, that he would like to have a signed copy of the Notice of Execution in order to bring same to District Justice 3 Correal's office where funds of Mr. Ness, being subject to distribution at the close of business that same day, were being held. Between the hours of 1:45 P.M. and 2:25 P.M., February 2S, 1995, Attorney O'Brien waited for a photo copy of the signed form. At about 2:25 P.M., the Defendant called him back into her office and indicated that she did not believe that he was authorized to proceed on behalf of Property Management, Inc. Attorney O'Brien responded that, in fact, he was authorized; that he had spoken with Mr. James stephens of that office over the lunch hour and that he requested that she sign the paperwork. Defendant indicated that she did not believe Attorney O'Brien and that she was not going to sign the paperwork. 15) It is believed and therefore averred that, if a local attorney appears at the District Justice's office and signs to have an execution process begun, his authority to do the same is not questioned, nor is the attorney's truthfulness of his right of representation called into question by the District Justice. 16) Pursuant to the aforesaid rules, Rule 402, in order to have execution as set forth on the foregoing facts, the only office that can issue execution on the judgment, is Defendant District Justice Susan K. Day'S office because that is where the judgment was rendered within this same county. A) By virtue of Defendant's refusal to cooperate with the lawful request of Plaintiff or his attorney, Robert L. O'Brien, Esquire, Plaintiff may well have lost the benefit of having execution against the property of Dennis Ness to the extent of the judgment of 4 . . Property Management, Inc., in the sum of $7S0.00, plus additional costs. B) The act or duty that the Plaintiff has requested is the issuance of the process of execution which begins with Rule 401 and being the rules in the 400 series. C) The interest of the Plaintiff in the result is that the Plaintiff is a holder of the judgment, or in the alternative, the Plaintiff's attorney was authorized on behalf of Property Management, Inc., to request in that entity's name, that execution be begun. In both instances, the Defendant has refused the reasonable and lawful request. D) The Plaintiff has no other adequate remedy at law. WHEREFORE, the Plaintiff respectfully requests that Your Honorable Court: A) Order and Direct Defendant District Justice Susan K. Day proceed with the execution process, nunc pro tunc, first requested by David cauthen as assignee of Property Management, Inc.; B) Make a determination pursuant to the rules as to whether or not Plaintiff is a holder of the judgment and, hence, a Plaintiff pursuant to Rule 401; and, C) Order and Direct Defendant Justice Susan K. Day pay the cost of the action. D) Order and Direct such other relief as is just and equitable. 5 Respectfully submitted, O'BRIEN, BARIC & SCHERER l BY :"'cf:?~AJQA~ Robert L. O'Brien, Esquire Attorney for Plaintiff I.D. 2S351 17 West South Street Carlisle, PA 17013 (717) 249-6873 6