Loading...
HomeMy WebLinkAbout02-40950 o 0 o o o o o o c~ m ~ ~ 06 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN, : Plaintiff : vs. : No. CI-01-08688 ROBERT KASPER, : Defendant : OPINION AND ORD~ By CULLEN, J. The issue presented for resolution is whether a defendant has waived the right to challenge improper venue in the court of common pleas by filing an appeal from an adverse judgment of a district justice pursuant to Pa. R.C.P.D.J. No. 1002 rather than a praecipe for writ of certiorari pursuant to Pa. R.C.P.D.J. No. 1009. The court concludes that an objection to improper venue may be raised following an appeal from the decision of a district justice and, therefore, sustains Defendant's preliminary objections. Procedural History On August 29, 2001, Defendant, Robert Kasper, filed a notice of appeal from a judgment entered by a district justice in favor of Plaintiff, Dennis R. Hackman, and a rule to file a complaint was entered contemporaneously upon Plaintiff. On September 18, Defendant filed preliminary October 24, 2001, Plaintiff 2001, Plaintiff filed his complaint to which objections challenging venue. On filed an answer to the preliminary objections with new matter to which Defendant responded on November 13, 2001. On October 31, 2001, Plaintiff filed a praecipe to place the preliminary objections on the pre-trial proceedings list. Briefs and reply briefs were filed by both parties, and on February 28, 2002, Plaintiff filed a praecipe requesting that the preliminary objections be assigned to the court for disposition. The Prothonotary thereafter referred the matter to the court. Statement of Fac~ The pertinent facts are not in dispute.~ Defendant resident of Cumberland County,2 Pennsylvania. On June 19, Defendant signed and accepted is a 2001, in Cumberland County a proposal by 1The facts are based upon admissions in the pleadings. Further, since Plaintiff listed this matter for disposition without taking depositions on disputed questions of fact, he is bound by Defendant's averments of fact in the reply to new matter. 2In the complaint, Plaintiff alleges that Defendant resides at a particular address in Camp Hill, Dauphin County, Pennsylvania. The court notes, however, that Camp Hill is in Cumberland County, not Dauphin County. Plaintiff subsequently admits that the work in question was performed at Defendant's home in Cumberland County leading the court to conclude that the reference to Dauphin County was inadvertent. 2 Plaintiff3 to perform certain work on Defendant's home Cumberland County where the work was subsequently done. A dispute over payment arose and Plaintiff commenced an action before a district justice in Lancaster County notwithstanding that the cause of action arose in Cumberland County. Defendant was served with the district justice complaint in Cumberland County. Prior to the hearing, Defendant contacted the district justice's office by telephone objecting to venue and was told that the district justice would maintain venue over the complaint. Defendant subsequently appeared at the hearing on August 14, 2001, and did not renew his objection to entered judgment against Defendant Defendant venue. The district justice in the amount of $531.50, and filed an appeal to the court of common pleas. With respect to individuals, an action may be brought in and only in the magisterial district or county in which (1) the individual may be served, (2) the cause of action arose, or (3) a transaction or occurrence took place out of which the cause of action arose. Pa. R.C.P.D.J. No. 302A, Pa.R.C.P. 1006. 3Exhibit A of Plaintiff's complaint. 3 If the district justice in the magisterial district in which the complaint is filed finds that venue in that district is improper, the complaint shall be transferred to the magisterial district having proper venue. Pa. R.C.P.D.J. No. 302H. A similar provision in the Rules of Civil Procedure provides that if a preliminary objection to venue is sustained and there is a county in the Commonwealth where venue is proper, be dismissed, but shall be transferred to Pa.R.C.P. 1006(e). thus the complaint shall not the appropriate county. Given the facts in this case, Plaintiff does not argue, and waives,4 the claim that venue is proper in Lancaster County. Instead, he contends that Defendant, by failing to initially contest venue before the district justice and then by filing an appeal from the adverse decision instead of a praecipe for writ of certiorari, has waived the right to challenge improper venue ia Lancaster County. Questions of personal jurisdiction, venue and notice must be raised at the first reasonable opportunity or they are deemed Kubik v. Route 252, Inc., 762 A.2d 1119 (Pa. Super. 2000). waived. 4By failing to brief or argue the issue that venue is improper in Lancaster County based upon the Federal Fair Debt Collection Practices Act and Pennsylvania's Unfair Trade Practices and Consumer Protection Law, Defendant is deemed to have waived this claim. 4 In this instance, Defendants contacted the district justice's office and objected to venue but was told that the district justice would maintain venue. This is sufficient to preserve an objection to improper venue if necessary, whether or not Defendant renewed his objection at the time of the hearing.6 A party dissatisfied with the decision of a district justice has a right to appeal to the court of common pleas for a de novo proceeding, Pa. R.C.P.D.J. Nos. 1002, 1004, or the right to seek more limited relief by means of a praecipe for writ of certiorari. Pa. R.C.P.D.J. Nos. 1009, 1001(3). However, a judgment may not be the subject of both an appeal and a writ of certiorari, and the writ of certiorari will be stricken if an appeal is pending. Pa. R.C.P.D.J. No. 1015. Rule 1007 and the accompanying note provide: 5There is nothing in the record to indicate that Defendant was represented by counsel at this time. 6It appears that an objection to improper venue need not be raised before the district justice in order to be preserved. Unlike Pa.R.C.P. 1006(e), Pa. R.C.P.D.J. NO. 302 does not include a provision that failure to object to improper venue constitutes a waiver of the right to do so. This is understandable since many parties appearing in civil proceedings before district justices are likely to be unrepresented by counsel and to have no familiarity at all with the legal concept of venue. Further, both Pa. R.C.P.D.J. No. 1002 relating to appeals and Pa. R.C.P.D.J. NO. 1009 relating to a praecipe for writ of certiorari allow such action to be taken from a "judgment" of a district justice which includes a default judgment. Pa. R.C.P.D.J. No. 1001(1); Wilkes-Barre Clay Products Co. v. Koroneos, 342 Pa. Super. 582, 493 A.2d 744 (1985); Gottlieb v. Smith, 450 Pa. Super. 608, 677 A.2d 1213 (1996). While a challenge to improper venue may certainly be raised by filing a praecipe for writ of certiorari, Gottlieb v. Smith, 450 Pa. Super. 608, 677 A.2d 1213 (1996); Atkins v. Flaherty, 17 D.&C. 2d 143 (1958), a£f'd per curiam, 189 Pa. Super. 550, 152 A.2d 280 (1959), neither party has referred to any appellate court case which holds that a writ of certiorari is the exclusive means of challenging improper venue following an adverse decision by a district justice. Plaintiff, however, has cited two cases from the Court of Common Pleas of Luzerne County, Salamon v. Miller, 43 D.&C. 3rd 167 (1987) and Hagen v. Benson, 44 D.&C. 3rd 563 (1986) which bear directly on this issue. In Salamon, the plaintiff, a travel agency located in Luzerne County, brought an action against residing in Dauphin County, before County. Salamon v. Miller, 43 D.&C. the defendant, an individual a district justice in Luzerne 3rd 167 (1987). The plaintiff obtained a default judgment and defendant filed an appeal to the court of common pleas. Id. The defendant, who had not previously challenged either personal jurisdiction or venue, filed preliminary objections to the complaint challenging jurisdiction. Id. The defendant's preliminary objections were overruled without extended discussion. Id. The court stated only that by filing an appeal instead of a praecipe for writ of certiorari the defendant had failed to question the district justice's jurisdiction over him. Id. Further, by filing an appeal the court maintained that the defendant had submitted himself to its jurisdiction by making a general appearance.7 Id. There was a more extended discussion of the in Hagen. underlying court's reasoning Hagen v. Benson, 44 D.&C. 3rd 563 (1986). Although the facts are not set out in the opinion, it appears that the defendant took an appeal from an adverse decision of a district justice and ruled the plaintiff to file a complaint. Id. The defendant filed preliminary objections challenging venue to which the plaintiff filed preliminary objections. Id. The defendant relied upon Pa. R.C.P.D.J. No. 1007 in support of his position while the plaintiff cited Pa. R.C.P.D.J. No. 1009. Id. The court in its Pa. R.C.P.D.J. No. 1015 and an appeal. Id. to file preliminary would in effect permit him to utilize both the writ of certiorari and an appeal thereby rendering either Rule 1009 or Rule 1015 superfluous. Id. decision considered the applicability of which prohibits both a writ of certiorari The court reasoned that to allow the defendant objections to venue after taking an appeal 7In support of this proposition the court cited Mack Construction Co. v. Quonset Real Estate Corp., 122 A.2d 163 (1956), a decision by the Supreme Court of Rhode Island. Accordingly, the court concluded that the defendant was required to make an election regarding how to proceed. Id. If the defendant wished to contest venue, he must do so by praecipe for writ of certiorari pursuant to Pa. R.C.P.D.Jo No. 1009, and may not do so by preliminary objections following an appeal. Id. If the aggrieved party filed an appeal, his remedy was a trial de novo on the merits and any defects, other than jurisdiction over the person, are deemed waived. Id. The court did indicate that following an appeal the aggrieved party did have the option of requesting a change of venue pursuant to Pa.R.C.P. 1006(d). Id. After careful consideration of the language employed in the various rules, and the policies embodied in Pa.R.C.P. 126, this court declines to follow the decisions of the Court of Common Pleas of Luzerne County and concludes that a defendant may, if he so elects, challenge improper venue by preliminary objections after taking an appeal from an adverse judgment by a district justice. There are several reasons which support this decision. Pa. R.C.P.D.J. No. 1009 does not state in mandatory language that it is the exclusive means of challenging improper venue following a judgment by a district justice, and that the failure to utilize this avenue constitutes a waiver of the issue. This is in stark contrast to Pa.R.C.P. 1006(e) which explicitly requires that, 9 "Improper venue shall be raised by preliminary objection and if not so raised shall be waived." Under Pa. R.C.P.D.J. No. be conducted de novo in accordance with Procedure that would be applicable if the Pa.R.C.P. 1006(e). 1007, the proceedings on appeal shall the Rules of Civil suit had been filed initially in the court of common pleas without being limited with regard to the amount in controversy, joinder of causes of action or parties, added or particulars of the action before the district justice. changed averments, or otherwise because of the The Note following this Rule states specifically: Under subdivision B, the court of common pleas on appeal can exercise its full jurisdiction and all parties will be free to treat the case as though it had never been before the district justice, subject of course to the Rules of Civil Procedure. Pa. R.C.P.D.J. No. 1007, Note. When the case is before the court of common pleas, the parties may proceed as if it had been filed there initially, subject only to the Rules of Civil Procedure, not the Rules of Civil Procedure for District Justices. It would be anomalous to permit the plaintiff to recast his action completely by joining additional causes of action or parties and adding or changing allegations but deny the defendant the right to challenge improper venue. 10 Both the court in Hagen and Plaintiff in this instance view the proceeding in the court of common pleas as a de novo hearing on the merits instead of a proceeding de novo. While this would be correct if the appeal were from a criminal conviction, it is inconsistent with the specific provisions of Pa. R.C.P.D.J. No. 1007B. McDonald v. Cupka, 17 D.&C. 4th 48 (1992). There are additional reasons which also support the court's position. In order to challenge an adverse district justice decision on the merits, days of the no appeal a defendant must file an appeal within 30 entry of the judgment. Pa. R.C.P.D.J. No. 1002A. If is filed, the judgment is final. Accordingly, a defendant may be forced to forego a challenge to improper venue by means of a praecipe for writ of certiorari for fear that if he is unsuccessful he will have forfeited his right to contest the judgment on the merits. Even if a defendant does file a praecipe for writ of certiorari, he may still be denied the right to challenge improper venue if the plaintiff files an appeal. Since a judgment by a district justice may not be the subject of both an appeal and certiorari, the Prothonotary must strike the writ of certiorari if proof of service of the notice of appeal is filed. Pa. R.C.P.D.J. No. 1015. The plaintiff may appeal from a judgment by the district justice, amount sought, or defendant would be deprived of The court's decision in even if favorable, because he recovered less than the full as a tactical matter.8 In either event, the an opportunity to challenge venue. this matter does not preclude a defendant from challenging improper venue by filing a praecipe for writ of certiorari if the defendant chooses, it simply does not require that he do so. Thus, Pa. R.C.P.D.J. Nos. 1007 and 1009 can continue to co-exist.9 Further, any administrative problems 8Using the facts in Salamon where the plaintiff was from Luzerne County and the defendant was from Dauphin County as an example, a plaintiff may commence an action before the district justice in his home county for his convenience knowing that venue was improper and, even if successful, take an appeal if the defendant files a praecipe for writ of certiorari because he would prefer to litigate the case in the court of common pleas in his home county rather than before a district justice or court in the county where venue is proper. 9A proposed amendment to Rule 302H was recently submitted to make practice in the district justice courts more consistent with practice in the courts of common pleas. Almost identical to the language of Rule 1006(e), proposed Rule 302H states that, "Improper venue shall be raised by objection prior to the conclusion of the hearing and if not so raised shall be waived. If an objection to venue is sustained and there is a court of proper venue within Pennsylvania, the complaint shall not be dismissed but transferred to the court having proper venue." Pa. R.C.P.D.J. No. 302H (proposed April 23, 2002). This amendment is intended to clarify that an objection to improper venue will be waived if not raised before the district justice. Minor Court Rules Committee, Report on Proposed Amendments to Pa. R.C.P.D.J. Nos. 302 and 1009 (Comm. Print April 23, 2002, pp. Ct.R-53 - 61). At the same time, a proposed amendment to Rule 1009 was submitted to delete the right to seek a writ of certiorari on the ground of improper venue. Id. Without such an amendment to Rule 1009, an objection to improper venue would be waived by failing to assert it at the hearing before the district justice, but relief in the form of a writ of certiorari could be sought on the same grounds following an adverse decision, thereby defeating the policy underlying the proposed Rule 302H requirements. Id. Although the proposed amendments would eliminate the ability to challenge venue by means of a writ of certiorari after an adverse decision by a district justice, they do not address the issue in this case which is whether venue could be raised by preliminary objection following an appeal to the court of common pleas under Rule 1007. At this time, no proposed amendment to Rule 1007 has been submitted. 12 presented by the pendency of both an appeal and certiorari do not exist if only an appeal is filed and the plaintiff then files a complaint to which the defendant files preliminary objections. Based upon the plain language of the relevant rules and the policy set forth in Pa.R.C.P. 126, the court concludes that Defendant's preliminary objections in this case are well-founded. Accordingly, the court enters the following: IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKSUd~, : Plaintiff : VS. : ROBERT KASPER, : Defendant : No. CI-01-08688 AND NOW, this ~/~ day of June, 2002, the preliminary objections of Defendant, Robert Kasper, to the complaint of Plaintiff, Dennis R. Hackman, are sustained. The Prothonotary of Lancaster County is directed to transfer this action to the Court of Common Pleas of Cumberland County, Pennsylvania, pursuant to Pa.R.C.P. 1006(e) upon the payment of the costs by Plaintiff. Attest: BY THE COURT: ~'JAMES P. CULLEN, JUDGE Copies to: James S. Sorrentino, Esquire x~~ Jeffrey N. Yoffe , Esquire ~.~ NOTICE OF ENTRY OF ORDER OR DECREe/ PURSUANT TO PA. R.C.R NO: 236 NOTIFICAtiON - THE ATrAOHED DOCUMEN'F--~ HAS BEEN FILED IN THIS CASE PROTHONOTARY OF LANCASTER CO., PA DATE: JUN 0 ? ZI]OZ IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA DENNIS R. HACKMAN CIVIL ACTIOh Plaintiff No. CI-01-08688 Defendant PRAECIPE ROBERT KASPER TO THE PROTHONOTARY: Please assign the preliminary objections of Defendant to the court for disposition. Respectfully submitted, SORRENTINO & SAVOCA Jame~ S. Sorr~nti~ 0-~ Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 Dated: February 28, 2002 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN Plaintiff No. CI-01-08688 ROBERT KASPER Defendant REPLY BRIEF OF PLAINTIFF DENNIS R. HACKMAN -~ Defendant contends that a party challenging venue has two options - 1) to file a praecipe for writ of certiorari or 2) to raise the venue issue by preliminary objection. In support of his argument, Defendant relies on the notes following Distdct Justice Rule No. 1015, which state that an appeal involves a trial de novo on the merits. He also relies on the fact that Pa.R.C.P.D.J. No. 1009 provides that certiorari is a mechanism for contesting procedural matters. Initially, Defendant fails to recognize that venue is a procedural matter, not an issue of the merits of the case. Thus, the proper procedure to challenge venue is to file a praecipe for a writ of certiorari. On two separate occasions, the Luzerne County Court of Common Pleas has addressed facts that are strikingly similar to those here. Each case is both persuasive and instructional. In a well-reasoned opinion by Judge Toole in the case of Hagen v. Benson, 44 Pa. D&C 3d 563,1986 Pa. D&C LEXIS 220 (1986) the court opined that the DJ Rules were designed to compel the contesting litigant to make a choice based upon whether the issue is procedural or on the merits of the case. The court also reasoned that giving an aggrieved party the option of filing either a praecipe for writ of certiorari or filing an appeal renders P.R.C.P.D.J. 1009 (certiorari) and 1015 (prohibiting dual filings) superfluous. A copy of Hagen v. Benson, is attached hereto for the court's convenience. Furthermore, in Salamon v. Mille[, 43 Pa. D&C 3d 167; 1987 Pa. D&C LEXIS 5 (1987), the court reasoned that by electing to file an appeal to the court of common pleas rather than filing a praecipe for writ of certiorari regarding the venue issue, the aggrieved party had failed to question the district justice's jurisdiction over him and submitted himself to the jurisdiction of the Luzeme County Court of Common Pleas. ^ copy of Salamon v. Miller, is attached hereto for the court's convenience. Contrary to Defendant's arguments, forcing an aggrieved party to choose between filing a praecipe for a writ of certiorari or filing an appeal does not deprive the party of the right to a hearing de novo. However, the de novo hearing is held in the court of common pleas in the county where the district justice who initially heard the case sits rather than in the jurisdiction of the aggrieved party's choice. Finally, Defendant argues that because there is no record at the district justice hearing, there is no way to determine whether the issue of venue was raised. To the contrary, Pa.R.C.P.D.J. No. 302(h) provides that the district justice may find that venue is improper and transfer the case to a district having proper venue. Thus, if venue is raised at the first possible opportunity as required, the district justice will address the issue, note it in the transcript and act accordingly. The absence ora specific form raising the issue of venue does not excuse the aggrieved party from raising the issue at the earliest opportunity. 2 No. CI-01-08688 Based upon the foregoing, Plaintiff, Dennis R. Hackman, respectfully requests that this Honorable Court dismiss the Defendant's preliminary objections. Respectfully submitted, SORRENTINO & SAVOCA - James-S. Sorrentin0..)~L,J Attorney for Plaintiff '-' Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 3 No. CI-01-08688 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff No. CI-01-08688 Defendant CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the Reply Brief of Plaintiff, Dennis R. Hackman was served upon the following: SERVICE BY FIRST CLASS MAIL AND FACSIMILE TO: Jeffrey N. Yoffe, Esquire Yoffe & Yoffe 214 Senate Avenue Camp Hill, PA 17011 Respectfully submitted, SORRENTINO & SAVOCA Jame~S. Sorrent~;~ ~) Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 Dated: November 30, 2001 4 No. CI-01-08688 Search - 32 Remits - "distr' 'ustice"/s appeal & venue Source: My Sources > _Pennsylvania · Cases and Court Rules · B_y Court · PA Cases, Combined O Terms: "district justice" Is appeal & venue (Edit Search) ~-Select for FOCUSTM or Delivery 44 Pa. D. & C. Jd 563, ~ i986 Pa. D. & C. LEXIS 220, ** Hagen v. Benson no. 4797-c COMMON PLEAS COURT OF LUZERNE COUNTY, PENNSYLVANIA 44 Pa. D. & C.Jd 563; 1986 Pa. D. & C. LEXIS 220 Page 1 of 4 ,1uly 8, 1986, Decided PRIOR HISTORY: [**1] Preliminary objections to complaint. CORE TERMS: venue, writ of certiorari, aggrieved party, contest, change of venue, contesting, motion to strike, court of common pleas, trial de novo, praecipe, deposition, opposing counsel, party aggrieved, oral argument, prothonotary, transcribed, courtroom, stricken, assigned, waived HEADNOTES: Civil procedure -- Judgment of district justice -- Challenge to venue -- Petition for certiorari -- Pa.R.C,P.D.J. 1009 -- Preliminary objections improper-- Appeal limited to trial de novo -- Jurisdictional defects waived If a party aggrieved by a judgment of a district justice desires to contest venue, it may be done by way of certiorari pursuant to Pa.R.C.P.D.J. 1009, not by preliminary objections following an appeal. If the aggrieved party, however, proceeds by way of appeal any remedy will be limited to a trial de novo and any defects, other than jurisdiction over the person, will be deemed waived. COUNSEL: Bruce .1. Phillips, for plaintiff. Richard A. Vanderlin, for defendant. JUDGES: TOOLE, OPINIONBY: TOOLE OPINION: [*563] The controversy presently before us concerns the propriety of questioning venue by preliminary objection following an appeal from a district justice judgment. Defendant appealed and ruled plaintiff to file a complaint. Subsequently, defendant filed preliminary objections to the complaint contesting, inter alia, the venue of the action. Plaintiff then filed preliminary objections to defendant's preliminary objections, setting forth the following issue: "(Does) the failure of a party to file a writ of certiorari objecting to venue subsequent to a district justice's verdict against him and that party's entry of appearance in the county where the action was initiated preclude him from objection to venue further?" Search - 32 Results - "distri 'ustice"/s appeal & venue Page 2 of 4 Plaintiff, of course, answers in the affirmative and cites as authority Pennsylvania Rule of Civil Procedure [*564] for District Justices 1009 (a) which provides, in pertinent part: "Rule 1009. Praecipe for Writ of Certiorari "(A) Unless he was the plaintiff in the action before the district justice, [**2] a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction over the parties or subject matter, improper venue or such gross irregularity of procedures as to make the judgment void...." (emphasis added). Defendant argues that an aggrieved party desiring to contest venue has an option to proceed by writ pursuant to rule 1009 or to file preliminary objections under the authority of Pa. R.C.P.D.J. 1007, which provides in relevant part: "Rule 1007. Procedure on Appeal "(A) The proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas." Defendant opines that since preliminary objections would be appropriate "if the action was initially commenced in the court of common pleas," they are a permissible and appropriate procedural vehicle to contest venue on this appeal. If rules 1007 and 1009 were the only applicable rules, we would have no difficulty in holding that the rules afford alternative [**3] procedures rather than an exclusive procedure to contest venue. However, Pa.R.C.P.D.J. 1015 is also applicable and must be considered: "Rule 1015. Certiorari and Appeal Not Permitted. "A judgment may not be the subject of both certiorari and appeal. The prothonotary shall mark stricken from the record any writ of certiorari concerning [*565] a judgment as to which an appeal is pending if proof of service of copies of the notice of appeal has been filed. Zf the appeal is stricken or voluntarily terminated, the writ of certiorari shall be reinstated upon praecipe of the party obtaining the writ." There is no question that an aggrieved party cannot seek both a writ of certiorari and an appeal. However, that does not resolve the issue of whether the writ of certiorari is the exclusive means for contesting improper venue. At first glance it would appear that the provisions of 1009 are permissive rather than mandatory and therefore authorize the alternative procedure employed by defendant in this case. However, w_~.~,j:~L reason to prohibit simultaneous use of these procedural avenues if the aoori~ved party can cl.u. estion the pr,opnet¥ ot venue Pe?fectin,,g an apPeai £~'4] and then filing pre~ ,~~f the latter procedure is permi[ted~ then it see~§ tO us we will hav~ ~uth-~nze-T~~ the aggrieved party to do indirectly what he cannot do directly--that is, file both a writ and an appeal. Of what real use or purpose is section 1009 if venue can be raised by preliminary objection after an appeal and if that section is not exclusive, of what value is the prohibition in rule 10157 We are satisfied that the intent and purpose of the rule was to compel or require the contesting litigant to make a choice. Procedural defects and improprieties must be tested ~~]-Wr~-fi~6~:'~6~:~i:i-~vh~l~ t-h~ merits of the case can and should be Search - 32 Results - "dist6~' Justice"/s appeal & venue Page 3 of 4 reconsidered and determined through an appeal "without regard to any such procedural defects." Such a holding will avoid the administrative difficulties mentioned in the comment to rule 1015 and facilitate the disposition of the case. [*566]'"'~cordingly, we hold that if an aggrieved party desires to contest venue, he must do so by way of certiorari pursu_a~nt.~to rctle 1Q09 and thaLh~ ~a¥ not do so by pre m nary ) ....... o~b~jections following an appeal~f~:he aggriev~ pa-r~-'~-~:oceecls'~ way of'appea ,~the '- rer~d~ '[**~'-J~ §hall be limited to a trial de novo on the merits and any defects, other than! jurisdiction over the person, (see comment to rule 1015) shall be deemed to be waived. While imp. roper venue must then be raised by writ of certiorari, that does not preclude an aggrievee party from requesting a change of venue on the basis that a fair and an impart al trial cannot be held in the county or for the convenience of the parties and witnesses ~ pursuant to Pa.R.C.P. 1006 (d) (1) (2) The preliminary objections filed here contained in addition to the attack on venue a motion o strike, a motion for a more specific complaint, and what is designated as a "petition for ~R.C.P. 1006 (d) (1) or (2). ~ndeed, it would appear that the request f6r a change (of venue is based upon defenda-n~*s contention that venue is improper and should be transferred to the appropriate county pursuant to Pa.R.C.P. 1006 (e). When defendant's objections were filed, he failed to file a brief as required by local rule. Noting his error, counsel requested and was granted leave to file a late brief in support of his [**6] objections. ~n addition, the court directed in the order that the matter was not to be assigned to any judge until depositions were completed regarding the venue issue. Subsequently, plaintiff filed preliminary objections to defendant's objections and the latter motion was assigned to this court for resolution. Since we have [*567] now held that exclusive method of contesting improper venue must be by writ of certiorari, that still leaves the other issues raised by the objections, that is, the motion to strike and the motion for a more specific complaint unresolved. Those issues have not yet been addressed by a brief or oral argument. Zn order to resolve all outstanding procedural matters, we will schedule argument and direct a briefing schedule. In addition to hearing the motion to strike and motion for a more specific complaint, we will also afford defendant the opportunity, if he desires, not to contest venue, but to request a change of venue pursuant to Pa.R.C.P. 1006 (d) (1) or (2). If defendant is so inclined, then any necessary depositions must be taken and transcribed within the time limits hereinafter set forth. Accordingly, weenter the following ~ ~ ~l~t/~ It is ordered and directed (1) That the preliminary objection of Robert Hagen to the preliminary objection of Lee Benson, t/d/b/a Replica Car Company contesting venue is sustained. (2) The preliminary objections of defendant in the nature of a motion to strike and a motion for a more specific complaint shall be argued, if necessary, on Wednesday, July 30, 1986, at 1:30 p.m. in courtroom 3. Defendant's brief shall be filed and served upon the court and opposing counsel no later than Friday, July ~8, 1986, while the opponent's brief shall be filed with the court and opposing counsel no later than Friday, July 25, 1986. Search - 32 Results - "distr:-' justice"/s appeal & venue Page 4 of 4 (3) If defendant cares to pursue a petition for change of venue under Pa.R.C.P. 1006 (d) (1) or (2), evidentiary support must be provided by deposition(s) [*568] which must be taken, transcribed and filed with the court on or before Monday, 3uly 28, 1986, at 4:00 p.m. Briefs shall then be filed and oral argument heard on Wednesday, 3uly 30, 1986, at 1:30 p.m. in courtroom 3. Source: My Sources > Pennsylvania > Cases and Court Rules > By Court > PA Cases, Combined O Terms: "district justice" Is appeal & venue (Edit Search) View: Full Date/Time: Thursday, November 29, 2001 - 11:43 AM EST About LexisNexi~ I Terms and Conditions Copvriaht © 2(301 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Search - 32 Results - "distr: :ustice"/s appeal & venue Soume: ~y Sources · Pennsylvania · Cases and Court Rules · B~v Court · PA Cases, Combined O Terms: "district justice" Is appeal & venue (Edit Seamh) ~-Select for FOCUSTM or Delivery 43Pa. D. & C. 3d167, ~ 1987Pa. D. & C. LEXIS5, ** Salamon v. Hiller no. 1900-C COMMON PLEAS COURT OF LUZERNE COUNTY, PENNSYLVANIA 43 Pa. D. & C.3d 167; 1987 Pa. D. & C. LEXIS 5 Page 1 of 3 Harch 4, 1987, Decided CORE TERMS: writ of certiorari, praecipe, prothonotary, general appearance, lacks jurisdiction, conformity to law, motion to strike HEADNOTES: Civil procedure -- Appeal from judgment of district justice -- Defendant's submission and jurisdiction of' court -- Absence of challenge to jurisdiction by writ of certiorari A defendant is deemed to have submitted to the jurisdiction of the court by entering a general appearance where the defendant elects to file an appeal from the judgment of a district justice rather than challenge jurisdiction by filing a praecipe for a writ of certiorari in accordance with Pa. R.C.P.D.J. 1009. COUNSEL: [*'1] Joseph F. Castellino, for plaintiff. Clarence B. Turns, Jr., for defendant. JUDGES: PODCASY, OPZNIONBY: PODCASY OPZNZON: Preliminary objections to complaint. ['167] This matter comes before the court on preliminary objections filed by defendant, Stephen D. Hiller, in the nature of a petition raising a jurisdictional question and a ['168] motion to strike off a pleading because of lack of conformity to law or rule of court. Plaintiff, Travelworld, is a travel agency located in Wilkes-Barre, Luzerne County, Pa. Defendant (Hiller) is a resident of Harrisburg, Dauphin County, Pa. Plaintiff is seeking to recover from defendant compensation for services rendered in arranging a trip for defendant to the Orient. The location or specific circumstances surrounding the making of the contract upon which this action is based are unclear from the pleadings. Travelworld instituted suit against defendant Hiller before a district justice in Luzerne County, Pa. Defendant did not appear at the scheduled hearing and judgment was entered against him on April 11, 1986. On Hay 5, 1986, defendant Hiller subsequently filed an appeal from the magistrate's decision to the Luzerne County Court [**2] of Common Pleas, and entered a rule to file a complaint upon plaintiff, Travelworld. Defendant Hiller Search - 32 Results - "distr: :ustiee"/s appeal & venue Page 2 of 3 neither raised personal jurisdiction nor venue at that particular time or prior thereto. Defendant now asks this court to dismiss plaintiffs complaint on the basis that this court lacks jurisdiction over defendant Miller. In deciding the question raised by defendant as to jurisdiction, it is important to look at Pa. R.C.P.D.J. 1009, which provides in pertinent part as follows: "Unless he was the plaintiff in the action before the district justice, a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction over the parties...." In the instant case, defendant Miller did not file a praecipe for writ of certiorari, but instead elected to file an appeal and, thus, by his actions failed to ['169] question the district justice's jurisdiction over him. Furthermore, defendant, by filing an appeal to the Luzerne County Court of Common Pleas on Hay 5, 1986, submitted himself to the jurisdiction of this court by making a general [**3] appearance in the above matter. See Mack Construction Co. v. Qunset Real Estate Corp., Pa. ,122 A.2d 163 1956 . Accordingly, we find no merit to defendant Miller's contention that this court lacks jurisdiction over him. We now turn to the motion to strike off Travelworld's complaint because of lack of conformity to law or rule of court. Specifically, defendant Hiller contends that since plaintiff's complaint was not filed in the above matter until approximately six months and 10 days after the expiration of the 20-day period of time prescribed by Pa. R.C.P.D.3. 1004B, his complaint should be dismissed. We note that under Pa.R.C.P.D..1. 1004B, the procedure for failure to file a complaint pursuant to a rule to do so is governed by Pa.R.C.P. 1037(a). Under the latter-mentioned rule it is provided that, "if a complaint is not filed within 20 days after service of the rule, the prothonotary, upon praecipe of the defendant (Emphasis added.), shall enter a judgment of non pros." Defendant Miller had from approximate y Hay 26, 1986, (20 days after service of the rule) through December 8, 1986, (the day plaintiff's complaint was filed) to exercise this [**4] remedy. If defendant did not feel that this "delay" was unreasonable as evidenced by his failure to exercise the remedy available to him under Pa.R.C.P. 1037(a), we decline to do so today. ORDER It is hereby ordered, adjudged and decreed as follows: ['170] (1) Defendant's preliminary objections are overruled, and defendant, Stephen D. Hiller, shall have the right to plead over within 20 days after notice of this order; and (2) The Prothonotary of Luzerne County is directed to mail notice of entry of this order to all counsel of record pursuant to Pa.R.C.P.D..]. 236. Source: tvly Sources > _Pennsylvania > Cases and Court Rules · By Court · PA Cases, Combined Terms: "district justice" Is appeal & venue (Edit Search) View: Full -- Date/Time: Thursday, November 29, 2001 - 11:40 AM EST Search - 32 Results - "distri '-~stice"/s appeal & venue Page 3 of 3 About LexisNexis ~ Terms and Conditions Coovdaht © 2001 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff No. CI-01-08688 Defendant REPLY BRIEF OF PLAINTIFF DENNIS R. HACKMAN Defendant contends that a party challenging venue has two options - 1) to file a praecipe for writ of certiorari or 2) to raise the venue issue by preliminary objection. In support of his argument, Defendant relies on the notes following District Justice Rule No. 1015, which state that an appeal involves a trial de novo on the merits. He also relies on the fact that Pa.R.C.P.D.J. No. 1009 provides that certiorari is a mechanism for contesting procedural matters. Initially, Defendant fails to recognize that venue is a procedural matter, not an issue of the merits of the case. Thus, the proper procedure to challenge venue is to file a praecipe for a writ of certiorari. On two separate occasions, the Luzerne County Court of Common Pleas has addressed facts that are strikingly similar to those here. Each case is both persuasive and instructional. In a well-reasoned opinion by Judge Toole in the case of Ha.qen v Benson, 44 Pa. D&C 3d 563,1986 Pa. D&C LEXIS 220 (1986) the court opined that the DJ Rules were designed to compel the contesting litigant to make a choice based upon whether the issue is procedural or on the merits of the case. The court also reasoned that giving an aggrieved party the option of filing either a praecipe for writ of certiorari or filing an appeal renders P.R.C.P.D.J. 1009 (certiorari) and 1015 (prohibiting dual filings) superfluous. A copy of Hagen v. Benson, is attached hereto for the court's convenience. Furthermore, in Salamon v. Miller, 43 Pa. D&C 3d 167; 1987 Pa. D&C LEXIS 5 (1987), the court reasoned that by electing to file an appeal to the court of common pleas rather than filing a praecipe for writ of certiorari regarding the venue issue, the aggrieved party had failed to question the district justice's jurisdiction over him and submitted himself to the jurisdiction of the Luzeme County Court of Common Pleas. A copy of Salamon v. Miller, is attached hereto for the court's convenience. Contrary to Defendant's arguments, forcing an aggrieved party to choose between filing a praecipe for a writ of certiorari or filing an appeal does not deprive the party of the right to a hearing de novo. However, the de novo hearing is held in the court of common pleas in the county where the district justice who initially heard the case sits rather than in the jurisdiction of the aggrieved party's choice. Finally, Defendant argues that because there is no record at the district justice hearing, there is no way to determine whether the issue of venue was raised. To the contrary, Pa.R.C.P.D.J. No. 302(h) provides that the district justice may find that venue is improper and transfer the case to a district having proper venue. Thus, if venue is raised at the first possible opportunity as required, the district justice will address the issue, note it in the transcript and act accordingly. The absence of a specific form raising the issue of venue does not excuse the aggrieved party from raising the issue at the earliest opportunity. 2 No. CI-01-08688 Based upon the foregoing, Plaintiff, Dennis R. Hackman, respectfully requests that this Honorable Court dismiss the Defendant's preliminary objections. Respectfully submitted, SORRENTINO & SAVOCA - Jarnes~. Sorrentin~J~LJ Attorney for Plaintiff '-' Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 No. CI-01-08688 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff No. CI-01-08688 Defendant CERTIFICATE OF SERVlCF The undersigned hereby certifies that on this date, a true and correct copy of the Reply Brief of Plaintiff, Dennis R. Hackman was served upon the following: SERVICE BY FIRST CLASS MAIL AND FACSIMILE TO: Jeffrey N. Yoffe, Esquire Yoffe & Yoffe 214 Senate Avenue Camp Hill, PA 17011 Respectfully submitted, SORRENTINO & SAVOCA James S. Sorrent~:~ Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 Dated: November 30, 2001 4 No. CI-01-08688 Search - 32 Results - "district justice"/s appeal & venue Source: _My Sources · P~ennsylvania_ · --Cases and Court Rules · By Court · PA Cases, Combined O Terms: "district justice"/s appeal & venue (Edi~tt Search) ~-Select for FOCUSTM or Delivery [] 01 -08688 44 Pa. D, & C. Jd 563, ~ 1986 Pa. D. & C. LEXIS 220, ** Hagen v. Benson no. 4797-c COHMON PLEAS COURT OF LUZERNE COUNTY, PENNSYLVANIA 44 Pa. D. & C.3d 563; 1.986 Pa. D. & C. LEXIS 220 Page 1 of 4 July 8, 1986, Decided PRIOR HISTORY: [*-1] Preliminary objections to complaint. CORE TERNS: venue, writ of certiorari, aggrieved party, contest, change of venue, contesting, motion to strike, court of common pleas, trial de nero, preecipe, deposition, opposing counsel, party aggrieved, oral argument, prothonotary, transcribed, courtroom, stricken, assigned, waived HEADNOTES: Ovil procedure -- Judgment of district justice -- Chaflenge to venue -- Petition for certiorari -- Pa.R.C.P. Dj. 1009 -- Preliminary objections improper-- Appeal limited to trial de novo -- Jurisdictional defects waived If a party aggrieved by a judgment of a district justice desires to contest venue, it may be done by way of certiorari pursuant to Pa.R.C.P.D.J. 1009, not by preliminary objections following an appeal. If the aggrieved party, however, proceeds by way of appeal any remedy will be limited to a trial de novo and any defects, other than jurisdiction over the person, will be deemed waived. COUNSEL: Bruce 3. Phillips, for plaintiff. Richard A. Vanderlin, for defendant. JUDGES: TOOLE, J. OPINZONBY: TOOLE OPINION: [*563] The controversy presently before us concerns the propr ety of questioning venue by preliminary objection following an appeal from a district Justice judgment. Defendant appealed and ruled plaintiff to file a complaint. Subsequently, defendant filed preliminary objections to the complaint contesting, inter alia, the venue of the action. Plaintiff then filed preliminary objections to defendant's preliminary objections, setting forth the following issue: "(Does) the failure of a party to file a writ of certiorari objecting to venue subsequent to a district justice's verdict against him and that party's entry of appearance in the county where the action was initiated preclude him from objection to venue further?" Search - 32 Results - "district justice"/s appeal & venue Page 2 of 4 Plaintiff, of course, answers in the affirmative and cites as authority Pennsylvania Rule of Civil Procedure ['5641 for District Justices 1009 (a) which provides, in pertinent part: "Rule 1009. Praecipe for Writ of Certiorari "(A) Unless he was the plaintiff in the action before the district justice, [**2] a party aggrieved by a judgment may fi/e with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction over the parties or subject matter, improper venue or such gross irregularity of procedures as to make the judgment void...." (emphasis added). Defendant argues that an aggrieved party desiring to contest venue has an option to proceed by writ pursuant to rule 1009 or to file preliminary objections under the authority of Pa. R.C.P.D.J. 1007, which provides in relevant part: "Rule 1007. Procedure on Appeal "A ( ) The proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the court of common pleas." Defendant opines that since preliminary objections would be appropriate "if the action was initially commenced in the court of common pleas," they are a permissible and appropriate procedural vehicle to contest venue on this appeal. If rules 1007 and 1009 were the only applicable rules, we would have no difficulty in holding that the rules afford alternative [**3] procedures rather than an exclusive procedure to contest venue. However, Pa.R.C.P.D..]. 1015 is also applicable and must be considered: "Rule 1015. Certiorari and Appeal Not Permitted. "A judgment may not be the subject of both certiorari and appeal. The prothonotary shall mark stricken from the record any writ of certiorari concerning [*565] a judgment as to which an appeal is pending if proof of service of copies of the notice of appeal has been filed. If the appeal is stricken or voluntarily terminated, the writ of certiorari shall be reinstated upon praecipe of the party obtaining the writ." There is no question that an aggrieved party cannot seek both a writ of certiorari and an appeal. However, that does not resolve the issue of whether the writ of certiorari is the exclusive means for contesting improper venue. At first glance it would appear that the provisions of 1009 are permissive rather than mandatory and therefore authorize the alternative procedure employed by defendant in this case. However, we see no logical reason to prohibit simultaneous use of these procedural avenues if the aggrieved party can question the propriety of venue by perfecting an appeal [**4] and then filing preliminary objections. If the latter procedure is permitted, then it seems to us we will have authorized the aggrieved party to do indirectly what he cannot do directly--that is, file both a writ and an appeal. Of what real use or purpose is section 1009 if venue can be raised by preliminary objection after an appeal and if that section is not exclusive, of what value is the prohibition in rule 10157 We are satisfied that the intent and purpose of the rule was to compel or require the contesting litigant to make a choice. Procedural defects and improprieties must be tested and pursued by writ of certiorari while the merits of the case can and should be Search- 32 Results-"district justice"/s appeal & venue ~ ~ ~ ~ ?,, i~Q /~ ~ Page 3 of 4 reconsidered and determi,.~d through an appeal "without regard ,,, any such procedural defects.' Such a holding will avoid the administrative difficulties mentioned in the comment to rule 1015 and facilitate the disposition of the case. [*$66] Accordingly, we hold that if an aggrieved party desires to contest venue, he must do so by way of certiorari pursuant to rule 1009 and that he may not do so by preliminary objections following an appeal. If the aggrieved party proceeds by way of appeal, the remedy [**$] shall be limited to a trial de nuvo on the merits and any defects, other than jurisdiction over the person, (see comment to rule 1015) shall be deemed to be waived. While improper venue must then be raised by writ of certiorari, that does not preclude an aggrieved party from requesting a change of venue on the basis that a fair and an impartial trial cannot be held in the county or for the convenience of the parties and witnesses pursuant to Pa.R.C.P. 1006 (d) (1) (2) The preliminary objections filed here contained in addition to the attack on venue a motion to strike, a motion for a more specific complaint, and what is designated as a 'petition for change of venue." The latter does not clearly allege or indicate any factual or legal premise under Pa.R.C.P. 1006 (d) (1) or (2). Indeed, it would appear that the request for a change of venue is based upon defendant's contention that venue is improper and should be transferred to the appropriate county pursuant to Pa.R.C.P. 1006 (e). When defendant's objections were filed, he failed to file a brief as required by local rule. Noting his error, counsel requested and was granted leave to file a late brief in support of his [**6] objections. In addition, the court directed in the order that the matter was not to be assigned to any judge until depositions were completed regarding the venue issue. Subsequently, plaintiff filed preliminary objections to defendant's objections and the latter motion was assigned to this court for resolution. Since we have [*567] now held that exclusive method of contesting improper venue must be by writ of certiorari, that still leaves the other issues raised by the objections, that is, the motion to strike and the motion for a more specific complaint unresolved. Those issues have not yet been addressed by a brief or oral argument. In order to resolve all outstanding procedural matters, we will schedule argument and direct a briefing schedule. In addition to hearing the motion to strike and motion for a more specific complaint, we will also afford defendant the opportunity, if he desires, not to contest venue, but to request a change of venue pursuant to Pa.R.C.P. 1006 (d) (1) or (2). If defendant is so inclined, then any necessary depositions must be taken and transcribed within the time limits hereinafter set forth. Accordingly, we enter the following ORDER [**7] It is ordered and directed (1) That the preliminary objection of Robert Hagen to the preliminary objection of Lee Benson, t/d/b/a Replica Car Company contesting venue is sustained. (2) The preliminary objections of defendant in the nature of a motion to strike and a motion for a more specific complaint shall be argued, if necessary, on Wednesday, July 30, 1986, at 1:30 p.m. in courtroom 3. Defendant's brief shall be filed and served upon the court and opposing counsel no later than Friday, July 18, 1986, while the opponent's brief shall be filed with the court and opposing counsel no later than Friday, July 25, 1986. Search- 32 Results- "district justice"/s appeal & venue ~ ~ ~: ~ ?, ,:-~ (~ ,, ,, ~ Page 4 of 4 (3) If defendant cares to ~ursue a petition for change of venue -.,,der Pa.R.C.P. 1006 (d) (1) or (2), evidentiary support must be provided by deposition(s) 1"568] which must be taken, transcribed and filed with the court on or before Monday, .July 28, 1986, at 4:00 p.m. Briefs shall then be filed and oral argument heard on Wednesday, July 30, 1986, at 1:30 p.m. in courtroom 3. Source: My Sources > _Pennsylvani~ > Cases and Court Rules > DY Coud_ · PA Cases, Combined O Terms: "district justice" la appeal & venue (Edit Search) View: Full - Date/Time: Thursday, November 29, 2001 - 11:43 AM EST ~About LexisNexis Terms and Conditions Copvriaht © 2~O1 LexJsNexis, a division of Reed Elsevier Inc, All rights reserve. Search - 32 Results - "district justice"/s appeal & venue Source: ~ Sources > Pennsyi,~,fi~a · Cases and Court Rules · By Court · PA b,ses. Combined O Terms: "district justice" Is appeal & venue (Edit~Searc~h) ~-Select for FOCUSTM or Delivery [] 0I 43 Pa. D. & C. 3d 167, ~ 1987Pa. D. & C. LEXIS 5, ** Salamon v. Hiller no. 1900-C COHHON PLEAS COURT OF LUZERNE COUNTY, PENNSYLVANIA 43 Pa. D. & C.3d 167; 1987 Pa. D. & C. LEXIS 5 Page 1 of 3 March 4, 1987, Decided CORE TERNS: writ of certiorari, praecipe, prothonotary, general appearance, lacks jurisdiction, conformity to law, motion to strike HEADNOTES: Civil procedure -- Appeal from judgment of district justice -- Defendant's submission and jurisdiction of court --Absence of challenge to jurisdiction by writ of certiorari A defendant is deemed to have submitted to the jurisdiction of the court by entering a general appearance where the defendant elects to file an appeal from the judgment of a district justice rather than challenge jurisdiction by filing a praecipe for a writ of certiorari in accordance with Pa. R.C.P.D..~. 1009. COUNSEL: [*'1] Joseph F. Castellino, for plaintiff. Clarence g. Turns, Jr., for defendant. JUDGES: PODCASY, J. OPZNZONBY: PODCASY OPZNION: Preliminary objections to complaint. [*:167] This matter comes before the court on preliminary objections filed by defendant, Stephen D. Hiller, in the nature of a petition raising a jurisdictional question and a ['168] motion to strike off a pleading because of lack of conformity to law or rule of court. Plaintiff, Travelworld, is a travel agency located in Wilkes-Barre, Luzerne County, Pa. Defendant (Hiller) is a resident of Harrisburg, Dauphin County, Pa. Plaintiff is seeking to recover from defendant compensation for services rendered in arranging a trip for defendant to the Orient. The location or specific circumstances surrounding the making of the contract upon which this action is based are unclear from the pleadings. Travelworld instituted suit against defendant Hiller before a district Justice in Luzerne County, Pa. Defendant did not appear at the scheduled hearing and judgment was entered against him on April 11, 1986. On Hay 5, 1986, defendant Hiller subsequently filed an appeal from the magistrate's decision to the Luzerne County Court [**2] of Common Pleas, and entered a rule to file a complaint upon plaintiff, Travelworld. Defendant Hiller Search - 32 Results _ ,, ' ' ' ' ,, d~stnct justme /s appeal & venue 0 1 "0 8 6 8 8 Page 2 of 3 neither raised personal ju,sdiction nor venue at that particular t~me or prior thereto. Defendant now asks this court to dismiss plaintiffs complaint on the basis that this court lacks jurisdiction over defendant Miller. In deciding the question raised by defendant as to jurisdiction, it is important to look at Pa. R.C.P.D.J. 1009, which provides in pertinent part as follows: "Unless he was the plaintiff in the action before the district justice, a party aggrieved by a judgment may file with the prothonotary of the court of common pleas a praecipe for a writ of certiorari claiming that the judgment should be set aside because of lack of jurisdiction over the parties...." In the instant case, defendant Hiller did not file a praecipe for writ of certiorari, but instead elected to file an appeal and, thus, by his actions failed to ['169] question the district justice's jurisdiction over him. Furthermore, defendant, by filing an appeal to the Luzerne County Court of Common Pleas on Hay 5, 1986, submitted himself to the jurisdiction of this court by making a general [**3] appearance in the above matter. See Mack Construction Co. v. Qunset Real Estate Corp., Pa. , 122 A.2d 163:1956 . Accordingly, we find no merit to defendant Hiller's contention that this court lacks jurisdiction over him. We now turn to the motion to strike off Travelworld's complaint because of lack of conformity to law or rule of court. Specifically, defendant Hiller contends that since plaintiff's complaint was not filed in the above matter until approximately six months and 10 days after the expiration of the 20-day period of time prescribed by Pa. R.C.P.D..1. 1004B, his complaint should be dismissed. We note that under Pa.R.C.P.D.J. 10048, the procedure for failure to file a complaint pursuant to a rule to do so is governed by Pa.R.C.P. 1037(a). Under the latter-mentioned rule it is provided that, "if a complaint is not filed within 20 days after service of the rule, the prothonotary, upon praecipe of the defendant (Emphasis added.), shall enter a judgment of non pros." Defendant Miller had from approximately Hay 26, 1986, (20 days after service of the rule) through December 8, 1986, (the day plaintiff's complaint was filed) to exercise this [**4] remedy. If defendant did not feel that this "delay" was unreasonable as evidenced by his failure to exercise the remedy available to him under Pa.R.C.P. 1037(a), we decline to do so today. ORDER It is hereby ordered, adjudged and decreed as follows: ['170] (1) Defendant's preliminary objections are overruled, and defendant, Stephen D. Hiller, shall have the right to plead over within 20 days after notice of this order; and (2) The Prothonotary of Luzerne County is directed to mail notice of entry of this order to all counsel of record pursuant to Pa.R.C.P.D.3. 236. Source: ~y Sources~ > Pennsylvani_a · Cases and Court Rules · By Court · PA Cases, Combined Terms: "district justice" Is appeal & venue (Edit Search) View: Full Date/Time: Thursday, November 29, 2001 - 11:40 AM EST Search- 32 Results- "district justice"/s appeal & venue ~ ~ ~ ~) ~ ~ 8 ~ About LexisNexi_s [ .Terms and Cond[tign~s ~oDvriaht ~_ 2001 LexisNexis, a division of Reed Elsevier Inc. All rights reserved. Page 3 of 3 DENNIS R. HACKN3kN, VS. ROBERT F~ASPER, Plaintiff In Defendant waived the right to raise the issue of venue in the Court of Common Pleas. First, Defendant did not raise the issue of venue at the actual District Justice hearing; and Second, Defendant must challenge venue after the District Justice hearing by writ of certiorari. Plaintiff is incorrect. Filing a praecipe for writ of certiorari is not the only way of challenging venue. District Justice Rule 1009 states that an aggrieved party ma~ (as opposed to must) file a praecipe for writ of certiorari to challenge venue. Civil Procedure Rule 1006(e) states that improper venue shall (as opposed to ma~) be raised by preliminary objection. Nothing in any of the rules suggests that failure to raise venue : IN THE COURT OF C~(~N PZEAS* D~ : LANCASTER COUNTY, PENNSYLVANIA NO. CI-01-08688 Defendant CIVIL ACTION - LAW ~ ' i i~ REPLY BRIEF OF ROBERT KASPER his brief, Plaintiff suggests that for two reasons at the District Justice level or failure to praecipe for writ of certiorari constitutes a waiver. Actually, the District Justice Rules suggest the contrary. District Justice Rule 1015 states that a judgment may not be the subject of both certiorari and appeal. According to the Note following Rule 1015, appeal involves a trial de novo on the merits. According to District Justice Rule 1009, certiorari is a mechanism for contesting procedural errors. District Justice Rule 1015 states that if a judgment is the subject of both certiorari and appeal, the certiorari will be striken. and If an a99rieved party chooses to praecipe for writ of certiorari thereafter loses, then pursuant to District Justice Rule 1014(B) and 1013(C} the District Justice judgment remains in full force and effect (see Note following rule 1014). Therefore, according to Plaintiff's version of the District Justice Rules, an aggrieved party wanting to challenge venue assumed by a District Justice must risk losing the opportunity to have a hearing de novo on the merits of his entire case, just for the opportunity to challenge venue. If the District Justice Rules state this (something which Defendant strongly argues they do not) then they state this regardless of whether the aggrieved party actually showed up at the District Justice hearing and contested venue. The District Justice Rules strongly suggest that Plaintiff's interpretation is incorrect. The District Justice Rules provide for a trial de novo on appeal at which all issues, including venue, can be raised regardless of whether the issues were raised in front of the District Justice. The Note to District Justice Rule 1015 provides KAn appeal involves a trial de novo on the merits ." District Justice Rule 1007 provides: A. The proceeding on appeal shall be conducted de novo in accordance with the Rules of Civil Procedure that would be applicable if the action was initially commenced in the Court of Common Pleas. B. The action upon appeal shall not be limited with respect to amount in controversy, joinder of causes of action or parties, counterclaims, added or changed averments or otherwise because of the particulars of the acion before the District Justice. The Note following District Justice rule 1007 states ~Under subdivision B, the Court of Common Pleas on Appeal can exercise its full jurisdiction and all parties will be free to treat the case as though it had never been before the District Justice, subject of course to the Rules of Civil Procedure". Finally, Plaintiffs interpretation position must fail as a practical matter. Plaintiff is taking the position that if Defendant would have raised venue at the District Justice level than that would either entitle Defendant to raise venue on appeal or would at least be a factor in the Court's decision as to whether Defendant could raise venue on appeal. The reality is that in Civil cases, no record is usually made at the District Justice level. How is a Court of Common Pleas going to determine whether venue was raised before the District Justice? Is the Court of Common Pleas going to take testimony from the parties? From the District Justice? There is no place on the District Justice Judgment transcript raised. There is no form District Justice raising the venue issue. WHEREFORE, Robert Kasper requests that be sustained. to indicate that the issue of venue was for an aggrieved party to file with the his preliminary objections YOFFE & YOFFE, P.~. /~ef~ey~N. Yo~f~, Esquire Attorney for Robert Kasper 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA NO. CI-01-08688 : : CIVIL ACTION - I~W CERTIFICATE OF SERVICE The undersigned certifies that on the date indicated below, he served a true and correct copy of the foregoing reply Brief on James S. Sorrentino, Esquire. Service was in the United States Mail, first as follows: James S. Sorrentino, Esquire 600-H Eden Road Lancaster, PA 17601 accomplished by depositing the same class, postage prepaid and addressed Date: November 23, 2001 YOFFE & YOFFE, P.C. /~FkFFREf N. ~O~E, ESQUIRE Attorney for Defendant 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN Plaintiff v. No. CI-01-08688 ' -: -- -~ ROBERT KASPER '~ Defendant :' ' PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'~ BACKGROUND. PRELIMINARY OBJECTION-~ On June 7, 2001, Plaintiff, Dennis R. Hackman, entered into a contract with Defendant, Robert Kasper, for the removal of an existing shingled roof, the installation of new shingles and the reflashing of the existing stone chimney at a contract price of $1,383.00. The contract further provided that the need for any additional roof layers, replacement or reworking of flashing, or the replacement ~)f rotten wood would result in extra charges. Plaintiff was required to remove a second shingled roof and replace rotten plywood in the chimney area. Therefore, upon completion of the work, Plaintiff submitted an invoice dated August 14, 2001 to Defendant in the amount of $1,861.00. Defendant paid to Plaintiff the sum of $1,383.00, however, he refused and he continues to refuse to pay the balance due for the charges related to the necessary extra work. On July 13, 2001, Plaintiff brought suit against Defendant in Lancaster County before District Justice Jayne F. Duncan alleging breach of contract and unjust enrichment. Thereafter, on August 14, 2001, after a hearing at which Defendant appeared and defended his actions, District Justice Duncan, entered a judgment against Defendant in the amount of $531.50, consisting of $468.00 due on the invoice and $63.50 in judgment costs. On August 29, 2001, Defendant filed an appeal from the judgment in the Lancaster County Court of Common Pleas. Plaintiff filed the Complaint at issue on September 18, 2001. Defendant's Preliminary Objections were filed on October 4, 2001. This brief is filed in opposition to Defendant's Preliminary Objections. II. QUESTION PRESENTEr). Whether Defendant waived the right to object to improper venue by appearing at and defending himself in the District Justice hearing and by filing an appeal from the judgment to the Lancaster County Court of Common Pleas? Suggested Answer: Yes. III. .DISCUSSION. Defendant claims that venue is improper in Lancaster County and that venue properly lies in Cumberland County. However, Defendant waived the right to attack venue when he did not address it at the earliest possible opportunity, i.e., at the District Justice hearing. Pennsylvania Rule of Civil Procedure No. 1006 provides, in part, as follows: (a) Except as otherwise provided by subdivisions (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of 2 No. C1-01-08688 action arose or in any other county authorized by law. (e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county. The costs and fees for transfer and removal of the record shall be paid by the Plaintiff. Venue is properly raised by preliminary objection; and if no objection is made, the objection to venue is deemed to be waived. Pa.R.C.P. 1006(e). Merely entering an appearance in a matter does not waive the right to attack improper venue. Pa.R.C.P. 1012(a). However, entering an appearance and doing nothing constitutes a waiver. Kubik v. Rte 252, Inc., tJa Alberto's Newtown Square, Effezeta SRI, 2000 Pa. Super 349, 762 A.2d 1119, LEXIS 3407 (2000). ~ The Pennsylvania rules pertaining to civil procedure for District Justice level practice also provide that the District Justice may find that venue is improper and transfer the case to a district having proper venue. Pa.R.C.P.D.J. No. 302 H. Furthermore, Pa.R.C.P.D.J. No. 1009 provides that a Defendant who is aggrieved by a judgment of a District Justice may file a praecipe for a writ of certiorari with the Prothonotary of the Court of Common Pleas claiming that the judgment should be set aside for lack of jurisdiction over the parties or subject matter, improper venue or gross irregularity of procedure. The praecipe must be filed within thirty (30) days of the judgment unless lack of jurisdiction is claimed. Flaherty v. Atkins, 189 Pa. Super. 550, 3 No. CI-01-08688 152 A.2d 280 (1959). Issues pertaining to improper venue are not heard ifa party files a praecipe after the thirty (30) day period has run. (Note, Pa.R.C.P.D.J. 1009). It is well settled that questions of personal jurisdiction, venue and notice related to the "method by which a court having the power to adjudicate the matter first obtained superintendence of the cause of action must be raised at the first reasonable opportunity or they are waived." .Kubik, id., quoting Commonwealth ex rel. Schwartz v. Schwartz, 252 Pa. Super. 95, 380 A.2d 1299 (1977); Collier Twp. v. Robinson Twp., 25 Pa. Commw. 227, 230, 360 A.2d 839, 840 (1976); See also, Papincordt v. Masterwork Paint Co., 412 Pa. 508, 194 A.2d 878 (1963); Commonwealth ex rel. Camp v. Camp, 150 Pa. Super. 649, 29 A.2d 363 (1942). Although there is no specific procedure for the determination of venue at the District Justice level, a defendant may raise an objection at the hearing before the District Justice and/or by praecipe for a writ of certiorari to the Common Pleas Court. Gottlieb v. Smith, 450 Pa. Super. 608, 677 A.2d 1213 (1996), re-argument denied July 17, 1996. In the instant case, Defendant's first reasonable opportunity to object to venue was at the District Justice proceeding. He did not do so, however. Instead, Defendant appeared at the hearing and presented his case. After an unfavorable ruling, Defendant had the opportunity to object to venue by filing a praecipe for a writ of certiorari with the Court of Common Pleas in accordance with Pa.R.C.P.D.J. No. 1009. Again, he did not do so. Instead, he further availed himself of the jurisdiction of the Lancaster County Court system by filing an appeal to the Lancaster County Court of Common Pleas. Having done so and having failed to object to venue at his first 4 No. CI-01-08688 opportunity, Defendant waived the right to object to venue. IV. CONCLUSION. For the foregoing reasons, the Plaintiff respectfully requests that this Honorable Court dismiss the Defendant's preliminary objections. Respectfully submitted, SORRENTINO & SAVOCA a r James S. Sorredtir~O Attorney for Plaintiff' Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 No. CI-01-08688 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN Plaintiff ROBERT KASPER Defendant No. CI-01-08688 CERTIFICATE OF SERVICF The undersigned hereby certifies that on this date, a true and correct copy of the Plaintiff's Brief in Opposition to Defendant's Preliminary Objections was served upon the following: SERVICE BY FIRST CLASS MAIL AND FACSIMILE TO: Jeffrey N. Yoffe, Esquire Yoffe & Yoffe 214 Senate Avenue Camp Hill, PA 17011 Respectfully submitted, SORRENTINO & SAVOCA James S. Sorrentin~L~"-J Attorney for Plaintiff Attomey I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 Dated: IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN Plaintiff v. No. Cl-01-08688 ROBERT KASPER Defendant - PLAINTIFF'S BRIEF IN OPPOSITION TO DEFENDANT'~ c~ PRELIMINARY OBJECTIONS I. BACKGROUND. On June 7, 2001, Plaintiff, Dennis R. Hackman, entered into a contract with Defendant, Robert Kasper, for the removal of an existing shingled roof, the installation of new shingles and the reflashing of the existing stone chimney at a contract price of $1,383.00. The contract further provided that the need for any additional roof layers, replacement or reworking of flashing, or the replacement of rotten wood would result in extra charges. Plaintiff was required to remove a second shingled roof and replace rotten plywood in the chimney area. Therefore, upon completion of the work, Plaintiff submitted an invoice dated August 14, 2001 to Defendant in the amount of $1,861.00. Defendant paid to Plaintiff the sum of $1,383.00, however, he refused and he continues to refuse to pay the balance due for the charges related to the necessary extra work. On July 13, 2001, Plaintiff brought suit against Defendant in Lancaster County before District Justice Jayne F. Duncan alleging breach of contract and unjust enrichment. Thereafter, on August 14, 2001, after a hearing at which Defendant appeared and defended his actions, District Justice Duncan, entered a judgment against Defendant in the amount of $531.50, consisting of $468.00 due on the invoice and $63.50 in judgment costs. On August 29, 2001, Defendant filed an appeal from the judgment in the Lancaster County Court of Common Pleas. Plaintifffiled the Complaint at issue on September 18, 2001. Defendant's Preliminary Objections were filed on October 4, 2001. This brief is filed in opposition to Defendant's Preliminary Objections. I1. QUESTION PRESENTED. Whether Defendant waived the right to object to improper venue by appearing at and defending himself in the District Justice hearing and by filing an appeal from the judgment to the Lancaster County Court of Common Pleas? Suggested Answer: Yes. III. DISCUSSION. Defendant claims that venue is improper in Lancaster County and that venue properly lies in Cumberland County. However, Defendant waived the right to attack venue when he did not address it at the earliest possible opportunity, i.e., at the District Justice hearing. Pennsylvania Rule of Civil Procedure No. 1006 provides, in part, as follows: (a) Except as otherwise provided by subdivisions (b) and (c) of this rule, an action against an individual may be brought in and only in a county in which the individual may be served or in which the cause of action arose or where a transaction or occurrence took place out of which the cause of 2 No. CI-01-08688 action arose or in any other county authorized by law. (e) Improper venue shall be raised by preliminary objection and if not so raised shall be waived. If a preliminary objection to venue is sustained and there is a county of proper venue within the State the action shall not be dismissed but shall be transferred to the appropriate court of that county. The costs and fees for transfer and removal of the record shall be paid by the Plaintiff. Venue is properly raised by preliminary objection; and if no objection is made, the objection to venue is deemed to be waived. Pa.R.C.P. 1006(e). Merely entering an appearance in a matter does not waive the right to attack improper venue. Pa.R.C.P. 1012(a). However, entering an appearance and doing nothing constitutes a waiver. Kubik v. Rte 252, Inc., t/a Alberto's Newtown Square, Effezeta SRI, 2000 Pa. Super 349, 762 A.2d 1119, LEXIS 3407 (2000). The Pennsylvania rules pertaining to civil procedure for District Justice level practice also provide that the District Justice may find that venue is improper and transfer the case to a district having proper venue. PaR.C.P.D.J. No. 302 H. Furthermore, Pa.R.C.P.D.J. No. 1009 provides that a Defendant who is aggrieved by a judgment of a District Justice may file a praecipe for a writ of certiorari with the Prothonotary of the Court of Common Pleas claiming that the judgment should be set aside for lack of jurisdiction over the parties or subject mal~er, improper venue or gross irregularity of procedure. The praecipe must be filed within thirty (30) days of the judgment unless lack of jurisdiction is claimed. _Flaherty v. Atkins, 189 Pa. Super. 550, 3 No. C1~01-08588 152 A.2d 280 (1959). Issues pertaining to improper venue are not heard if a party files a praecipe after the thirty (30) day period has run. (Note, Pa.R.C.P.D.J. 1009). It is well settled that questions of personal jurisdiction, venue and notice related to the "method by which a court having the power to adjudicate the matter first obtained superintendence of the cause of action must be raised at the first reasonable opportunity or they are waived." Kubik, id., quoting Commonwealth ex rel. Schwartz v. Schwartz, 252 Pa. Super. 95, 380 A.2d 1299 (1977); .Collier Twp. v. Robinson Twp., 25 Pa. Commw. 227, 230, 360 A.2d 839, 840 (1976); See also, papincordt v. Masterwork Paint Co., 412 Pa. 508, 194 A.2d 878 (1963); _Commonwealth ex rel. Camp v. Camp, 150 Pa. Super. 649, 29 A.2d 363 (1942). Although there is no specific procedure for the determination of venue at the District Justice level, a defendant may raise an objection at the hearing before the District Justice and/or by praecipe for a writ of certiorari to the Common Pleas Court. Gottlieb v. Smith, 450 Pa. Super. 608, 677 A.2d 1213 (1996), re-argument denied July 17, 1996. In the instant case, Defendant's first reasonable opportunity to object to venue was at the District Justice proceeding. He did not do so, however. Instead, Defendant appeared at the hearing and presented his case. After an unfavorable ruling, Defendant had the opportunity to object to venue by filing a praecipe for a writ of certiorari with the Court of Common Pleas in accordance with Pa.R.C.P.D.J. No. 1009. Again, he did not do so. Instead, he further availed himself of the jurisdiction of the Lancaster County Court system by filing an appeal to the Lancaster County Court of Common Pleas. Having done so and having failed to object to venue at his first 4 No. CI-01-08688 opportunity, Defendant waived the right to object to venue. IV. CONCL____USION. For the foregoing reasons, the Plaintiff respectfully requests that this Honorable Court dismiss the Defendant's preliminary objections. Respectfully submitted, SORRENTINO & SAVOCA James S. Sorrer(ti~r'oO' Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 5 No. CI-01-08688 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff Defendant CERTIFICATE OF SERVICF No. CI-01-08688 The undersigned hereby certifies that on this date, a true and correct copy of the Plaintiff's Brief in Opposition to Defendant's Preliminary Objections was served upon the following: SERVICE BY FIRST CLASS MAIL AND FACSIMILE TO: Jeffrey N. Yoffe, Esquire Yoffe & Yoffe 214 Senate Avenue Camp Hill, PA 17011 Respectfully submitted, SORRENTINO & SAVOCA James S. Sorrentin~Y~ Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 Dated: /~,t~.~/ 1N THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNsYLvAI~A r.~. CIVIL ACTION - LAW DENNIS R. HACKMAN, : Plaintiff : _. vs. : CI-01-08688 : ROBERT KASPER : Defendant : CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a tree and correct copy of Plaintiff's Brief in Opposition to Defendant's Preliminary Objections was served upon the following: SERVICE BY FIRST CLASS MAIL ADDRESSED TO: Jeffrey N. Yoffe, Esquire YOFFE & YOFFE, PC 214 Senate Avenue Camp Hill, PA 17011 Date: November 16, 2001 SORRENTINO & SAVOCA "x.(a/~es S. Sorrentino Atl~rney for Plaintiff Attorney I.D. No. 07006 600-H Eden Road Lancaster, PA 17601 (717) 519-0805 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA : NO. CI-01-08688 : Defendant : CIVIL ACTION - LAW RESPONSE OF DEFENDANT TO PLAINTIFF'S NEW MATTER 8. No response required. 9. Admitted. 10. Admitted. By way of further response, Defendant did object to venue prior to the hearing by calling the District Justice Office and voicing his objection. Defendant was told by the Office of District Justice Duncan that the same office would maintain venue over the complaint - essentially denying Defendant's objection. 1t. Admitted. 12. Admitted. 13. Denied. Defendant did object to venue prior to the hearing as set forth in paragraph 10 above. By way of further response, neither failure to object to venue at the actual District Justice hearing, or an appeal from the District Justice Judgment constitutes a waiver of the right to attack improper venue. YOFFE & YOFFE, P.C. ~ef~re~/N. Yo~e[ Esquire Attorney for Robert Kasper 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACK~, : IN THE COURT OF COMMON PLEAs OF VS. Plaintiff : LANCASTER COUNTy, PENNSYLVANIA : ROBERT }CASPER, : NO. CI-01-08688 Defendant : CIVIL ACTION _ LAW CERTIFICATE OF SERVICE The undersigned certifies that on the date indicated below, he Served a true and Correct copy of the foregoing response to new matter on James S. Sorrentino, Esquire. Service was accomplished by depositing the Same in the United States Mail, first class, postage prepaid and addressed as follows: James S. Sorrentino, Esquire 600-H Eden Road Lancaster, PA 17601 Date: November 9, 2001 YOFFE & YOFFE, P.C. Attorney for Defendant 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, Plaintiff VS. ROBERT KASPER, Defendant : IN THE COURT OF COMMON PLEAS OF : LANCASTER COUNTY, PENNSYLVANIA : · NO. CI-01-08688 : : CIVIL ACTION - LAW VERIFICATION I hereby state that I am an adult individual who is authorized to make this verification and that the facts set forth in the foregoing response to new matter are true to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Dated: Robert Kasper DENNIS R. KACKMAN, VS. ROBERT KASPER, : IN THE COURT OF COMMO~'~ OF Plaintiff : LANCASTER COUNTY, PENNSYL im : NO. CI-01-08688 Defendant : CIVIL ACTION - ~W , BRIEF OF ROBERT ~SPER IN SUPPORT OF PRELIMIN~y OBJECTIONS CHALLENGING VENUE I HISTORY OF THE CASE On August 29, 2001, Robert Kasper (Kasper) timely filed an appeal from a District Justice Judgment. The notice of appeal was properly served. The proof of service of notice of appeal was timely and properly filed. Dennis R. Hackman (Hackman) filed his complaint on September 18, 2001. On October 4, 2001 Kasper filed preliminary objections challenging venue. II FACTS It appears from the response file by Hackman that most of the facts set forth in the preliminary objections have been admitted. Admitted are paragraphs 2 through 6 of the preliminary objections which set forth that Kasper lives in Cumberland County, that the contract was signed and accepted by Kasper in Cumberland County, that Kasper was served with the District Justice Complaint in Cumberland County, that Plaintiff,s cause of action arose in Cumberland County and that all relevant work set forth in the Complaint occurred in Cumberland County. III STATEMENT OF QUESTIONS INVOLVED If a Defendant cannot be served in Lancaster County, the cause of action did not arise in Lancaster County and neither a transaction or occurrence took place in Lancaster County, can Lancaster County have venue? Suggested Answer: Pursuant to rule 1006, Kasper suggests the answer is no. IV ARGL~MENT Kasper argues that his preliminary objection can be resolved by looking at the pleadings in this case (most importantly, the preliminary objections and the response thereto) and rule 1006 of the Pennsylvania Rules of Civil Procedure. Kasper lives in Cumberland County, the contract was signed and accepted by Kasper in Cumberland County, Kasper was served with the District Justice Complaint in Cumberland County, Plaintiff's cause of action arose in Cumberland County and all relevant work set forth in the Complaint occurred in Cumberland County. In anticipating Hackman's arguments, Kasper believe Hackman will argue that Lancaster County has venue because allegedly Kasper did not raise the issue with the District Justice. This brief is not the proper place for Kasper to respond to this allegation. Nothing in rule 1006(e) of the PA Rules of Civil Procedure or District Justice Rule 302(A) or 302(H) supports Hackman's anticipated argument. This brief is the proper place to state that it does not matter what Kasper may or may not have said to the District Justice. District Justice Rule 1007 provides that the appeal is de novo. V CONCLUSION WHEREFORE, Robert Kasper requests that the Court requested in the Preliminary Objections filed. grant the relief YOFFE & YOFFE, P.C. ~/~effrey N. Yoffe, Esquire Attorney for Robert Kasper 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF : LANCASTER COLrNTY, PENNSYLVANIA : NO. CI-01-08688 : : CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned certifies that on the date indicated below, he served a true and correct copy of the foregoing Brief on James S. Sorrentino, Esquire. Service was accomplished by depositing the same in the United States Mail, first class, postage prepaid and addressed as follows: James S. Sorrentino, 600-H Eden Road Lancaster, PA 17601 Esquire Date: Noven%ber 5, 2001 YOFFE & YOFFE, P.C. ~EFFREY~N. YOF~E, ESQUIRE Attorney for Defendant 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff : LANCASTER COUNTY~ PENNSYLVANIA ;~!1 ~,0~ -6 ~NIO : NO. CI-01-08688 Defendant : CIVIL ACTION - LA~I,:,iJ[~; i ~ ~ :' ~ BRIEF OF ROBERT KASPER IN SUPPORT OF PRELIMINARY OBJECTIONS CHALLENGING VENUE I HISTORY OF THE CASE On August 29, 2001, Robert Kasper (Kasper) timely filed an appeal from a District Justice Judgment. The notice of appeal was properly served. The proof of service of notice of appeal was timely and properly filed. Dennis R. Hackman (Hackman) filed his complaint on September 18, 2001. On October 4, 2001 Kasper filed preliminary objections challenging venue. II FACTS It appears from the response file by Hackman that most of the facts set forth in the preliminary objections have been admitted. Admitted are paragraphs 2 through 6 of the preliminary objections which set forth that Kasper lives in Cumberland County, that the contract was signed and accepted by Kasper in Cumberland County, that Kasper was served with the District Justice Complaint in Cumberland County, that Plaintiff's cause of action arose in Cumberland County and that all relevant work set forth in the Complaint occurred in Cumberland County. III STATEMENT OF QUESTIONS INVOLVED If a Defendant cannot be served in Lancaster County, the cause of action did not arise in Lancaster County and neither a transaction or occurrence took place in Lancaster County, venue? Suggested Answer: Pursuant to rule answer is no. can Lancaster County have 1006, Kasper suggests the IV ARGUMENT Kasper argues that his preliminary objection can be resolved by looking at the pleadings in this case (most importantly, the preliminary objections and the response thereto) and rule 1006 of the Pennsylvania Rules of Civil Procedure. Kasper lives in Cumberland County, the contract was signed and accepted by Kasper in Cumberland County, Kasper was served with the District Justice Complaint in Cumberland County, Plaintiff's cause of action arose in Cumberland County and all relevant work set forth in the Complaint occurred in Cumberland County. In anticipating Hackman's arguments, Kasper believe Hackman will argue that Lancaster County has venue because allegedly Kasper did not raise the issue with the District Justice. This brief is not the proper place for Kasper to respond to this allegation. Nothing in rule 1006(e) of the PA Rules of Civil Procedure or District Justice Rule 302(A) or 302(H) supports Hackman's anticipated argument. This brief is the proper place to state that it does not matter what Kasper may or may not have said to the District Justice. District Justice Rule 1007 provides that the appeal is de novo. 0 I~ 07~ ?~ V CONCLUSION WHEREFORE, Robert Kasper requests that the Court grant the requested in the Preliminary Objections filed. relief YOFFE & YOFFE, P.C. ~f~rey~N. Esquire Attorney for Robert Kasper 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, Plaintiff VS. ROBERT KASPER, Defendant : IN THE COURT OF COMMON PLEAS OF : LANCASTER COUNTY, PENNSYLVANIA : NO. CI-01-08688 : CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned certifies that on the date served a true and correct copy of the foregoing Sorrentino, Esquire. Service was in the United States Mail, first as follows: James S. Sorrentino, Esquire 600-H Eden Road Lancaster, PA 17601 indicated below, he Brief on James S. accomplished by depositing the same class, postage prepaid and addressed Date: November 5, 2001 YOFFE & YOFFE, P.C. ~EF~RE~N. YOF~E[ ESQUIRE Attorney for Defendant 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNS~LV~_NI~ CIVIL ACTION - LAW '-' --- - Plaintiff v. No. CI-01-08688 :~ ~ ROBERT KASPER ~ ~ DENNIS R. HACKMAN Defendant CERTIFICATE OF SERVICF The undersigned hereby certifies that on this date, a true and correct copy of the Praecipe to list the matter on the pre-trial proceedings list was served upon the following: SERVICE BY FIRST CLASS MAIL AND FACSIMILE TO: Jeffrey N. Yoffe, Esquire Yoffe & Yoffe 214 Senate Avenue Camp Hill, PA 17011 Respectfully submitted, SORRENTINO & SAVOCA BY:(~I~,~/~ ~ James S. Sorrentin(~-U Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 Dated: November 1, 2001 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN Plaintiff :, v. No. Cl-01-08688 ROBERT KASPER Defendant PRAECIPE '~'~ -- - TO THE PROTHONOTARY: Please list the above-captioned matter on the pre-trial proceedings list. Respectfully submitted, SORRENTINO & SAVOCA James S. Sorrent~0~__~'~ Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 Dated: October 31, 2001 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff Defendant NOTICE TO PLEAD No. CI-01-08688 You are hereby notified to file a written response to the enclosed New Matter within twenty (20) days from the service hereof or a judgment may be entered against yOU. SORRENTINO & SAVOCA ~_J~mes S. Sorrentino Attorney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff No. CI-01-08688 Defendant PLAINTIFF'S ANSWER TO PRELIMINARY OBJECTION-~ 1. Denied. 2. Admitted. 3. Admitted. AND NEW MATTER 4. Admitted. 5. Admitted. 6. Admitted. 7. Denied. NEW MATTER 8. Paragraphs 1 through 7 are incorporated herein by reference as though set forth at length. 9. On July 13, 2001, Plaintiff brought suit against Defendant before Lancaster County District Justice Jayne F. Duncan. 10. Defendant appeared at the District Justice proceeding on August 14, 2001. He did not object to improper venue at the hearing. 11. On August 14, 2001, judgment was entered against Defendant and in IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff No. C1~01-08688 Defendant CERTIFICATE OF SERVICE The undersigned hereby certifies that on this date, a true and correct copy of the Plaintiff's Answer to Preliminary Objections and New Matter was served upon the following: SERVICE BY FACSIMILE AND FIRST CLASS MAIL TO: Jeffrey N. Yoffe, Esquire Yoffe & Yoffe, PC 214 Senate Avenue Camp Hill, PA 17011 975-1912 (Fax) ~.'~ames S, -Sorr~-ntino ~-torney for Plaintiff Attorney I.D. No. 07006 600-H Eden Road Lancaster, PA 17601 (717) 519-0805 Dated: October 24, 2001 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF : LANCASTER COUNTY, PENNSYLVANIA : NO. CI-01-08688 : CIVIL ACTION - LAW NOTICE TO PLEAD To: Dennis R. Hackman You are hereby notified to file a written response to the enclosed preliminary objections within twenty (20) days from service hereof or a judgment may be entered against you. YOFFE & YOFFE, P.C. Atf~e~N. Yo~fe] Esquire Attorney for Robert Kasper 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff Defendant IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA NO. CI-01-08688 CIVIL ACTION - LAW 1. Venue for this is not proper. PRELIMINARY OBJECTIONS civil action in Lancaster County, 2. As indicated in paragraph 2 of the Complaint, lives in Cumberland County, Pennsylvania. 3. On or around June 19, 2001, the contract accepted by Robert Kasper in Cumberland County, Exhibit "A" of Complaint. 4. Robert Kasper was via certified mail which 1006. 5. The cause of action alleged in Plaintiff's Cumberland County, Pennsylvania. 6. All the work alleged in the Complaint occurred Kasper's house located in Cumberland County. 7. Should Lancaster County retain venue over this case, violate the venue provisions Pennsylvania Collection Practices Act Consumer Protection Law. Robert Kasper was signed and Pennsylvania. See served with the District Justice Complaint he signed for in Cumberland County. Rule complaint arose in on/at Robert it would of the United States' Fair Debt and Pennsylvania's Unfair Trade Practices and WHEREFORE, Robert requests that the complaint be dismissed or, at the expense of Plaintiff, be transferred to Cumberland County, Pennsylvania. YOFFE & YOFFE, P.C. /~z~e~fre~ N. Yof~, Esquire Attorney for Robert Kasper 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, Plaintiff VS. ROBERT KASPER, Defendant : IN THE COURT OF COMMON PLEAS OF : LANCASTER COUNTY, PENNSYLVANIA : NO. CI-01-08688 : CIVIL ACTION - LAW VERIFICATION I hereby state that I am an adult individual who is authorized to make this verification and that the facts set forth in the foregoing preliminary objections are true to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Dated: Robert Kasper / DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF : LANCASTER COUNTY, PENNSYLVA/qIA : NO. CI-01-08688 : : CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned certifies that on the date indicated below, he served a true and correct copy of the foregoing Preliminary Objections on James S. Sorrentino, Esquire. depositing the same in the United prepaid and addressed as follows: James S. Sorrentino, Esquire 600-H Eden Road Lancaster, PA 17601 Service was accomplished by States Mail, first class, postage Date: October 3, 2001 YOFFE & YOFFE, P.C. /~FR~Y N.~'¥OFFE, ~Uf~E ~Attorney for Defendant 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN, : Plaintiff : vs. : CI-01-08688 ROBERT KASPER : Defendant : CERTIFICATE OF SERVICE r~ The undersigned hereby certifies that on this date, a true and correct copy of Notice to Defend and Complaint was served upon the following: SERVICE BY FIRST CLASS MAIL ADDRESSED TO: Jeffrey N. Yoffe, Esquire YOFFE & YOFFE, PC 214 Senate Avenue Camp H~I, PA 17011 Date: September 19, 2001 SORRENTINO & SAVOCA Attorney I.D. No. 07006 600-H Eden Road Lancaster, PA 17601 (717) 519-0805 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN Plaintiff No. Cl-01-08688 Defendant NOTICE TO DEFEND AND CLAIM RIGHTR ROBERT KASPER 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 either entering a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claim set forth against you. You are warned that if you fail to do so, the case may proceed without you and a judgement 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 LAWYERS 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: Court Administrator Court Administration Office Lancaster County Courthouse 50 North Duke Street Lancaster, Pennsylvania 17602 Telephone (717) 299-8041 SORRENTINO & SAVOCA s S. ~orre~fino ney for Plaintiff Attorney I. D. No. 07006 600-H Eden Road Lancaster, Pennsylvania 17601 (717) 519-0805 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CIVIL ACTION - LAW DENNIS R. HACKMAN ROBERT KASPER Plaintiff No. Cl-01-08688 Defendant COMPLAINT 1. Plaintiff is Dennis R. Hackman, an adult individual whose business address is 2181 Elizabethtown Road, Elizabethtown, Lancaster County, Pennsylvania. 2. Defendant is Robert Kasper, an adult individual who resides at 3806 Conestoga Road, Camp Hill, Dauphin County, Pennsylvania. 3. On June 7, 2001, Defendant entered into a contract with Plaintiff for the removal of an existing shingled roof and the installation of new shingles and the reflashing of the existing stone chimney at a contract price of $1,383.00. A true and correct copy of the contract is attached hereto as Exhibit "A" and incorporated herein by reference. 4. The contract attached hereto as Exhibit "A" provides that any additional roof layers, flashing needing replaced or reworked or rotten wood will be extra charges in addition to the contract price. 5. Plaintiff was required to remove a second shingle roof and replace rotten plywood at the chimney area. 6. Upon completion of the work, Plaintiff submitted an invoice dated August 14, 2001 to Defendant herein for a total of $1,861.00. Defendant paid Plaintiff the sum of $1,383.00 but refused and continues to refuse to pay the balance due pursuant to the invoice. A true and correct copy of said invoice is attached hereto as Exhibit "B" and incorporated herein by reference. 7. Because of Defendant's failure to pay the total amount of the invoice, Plaintiff brought suit before District Justice Jayne F. Duncan where he obtained a judgment in the amount of $531.50 on August 14, 2001, which judgment consisted of the amount of $468.00 due on the invoice and $63.50 in judgment costs. 8. Defendant filed an appeal to said judgment on October 29, 2001 with the Prothonotary of the Court of Common Pleas of Lancaster County, Pennsylvania and Plaintiff is filing this complaint in response thereto. COUNT I - BREACH OF CONTRACT 9. Paragraphs 1 through 8 are incorporated herein by reference as though set forth at length. 10. Defendant, as hereinabove alleged, contracted with Plaintiff for the work described in the contract attached hereto as Exhibit "A" as well as the extra work described in the invoice attached hereto as Exhibit "B". 11. Plaintiff has performed all work and provided all the materials pursuant to the contract in a good and workmanlike manner on a timely basis. 12. Defendant, despite repeated demands by Plaintiff, has failed and refused to pay Plaintiff for the goods and services provided to him pursuant to the contract 2 No. Cl-01-08688 attached hereto as Exhibit "A". WHEREFORE, Plaintiff requests judgment in the amount of $531.50 for the balance due on the invoice attached hereto as Exhibit "B" and for judgment costs assessed by the District Justice, together with penalties and attorneys' fees pursuant to the Contractor and Sub-Contractor Payment Act plus costs of suit. The amount demanded does not exceed the jurisdictional amount requiring arbitration. COUNT II - UNJUST ENRICHMENT 13. Paragraphs 1 through 12 are incorporated herein by reference as though set forth at length. 14. At all times relevant hereto, Defendant was the legal and equitable owner of the property located at 3806 Conestoga Road, Camp Hill, Pennsylvania, where the services described in the contract and invoice were performed. 15. Plaintiff avers that the value of the goods and services provided by Plaintiff for which Defendant is withholding payment totals $468.00. 16. Despite repeated demands, Defendant has failed and refused to pay to the Plaintiff the $468.00 due and owing. 17. Plaintiff avers that Defendant will be unjustly enriched by retaining benefits conferred on him by Plaintiff without payment for the value of those benefits. WHEREFORE, in the alternative, Plaintiff seeks judgment in the amount of $531.50, representing $468.00 due on the invoice attached hereto as Exhibit "B" and $63.50 for judgment costs assessed by the District Justice, plus penalties and 3 No. CI-01-08688 attorneys' fees pursuant to the Contractor and Sub-Contractor Payment Act, plus costs of suit. The amount demanded does not exceed the jurisdictional amount requiring arbitration. SORRENTINO & SAVOCA k....._~ames S.~Sorrentino, Esquire -'b"00-H Eden Road Lancaster, PA 17601 (717) 519-0805 Attorney ID No. 07006 Attorney For Plaintiff 4 No. C1-01-08688 VERIFICATION I, JAMES S. SORRENT1NO, ESQUIRE, Attorney for Dennis R. Hackman, hereby indicate that the Petitioner is not available to sign the verification and I am making this verification based on knowledge I have obtained fi.om the Petitioner or his agents. I state that the statements in the foregoing are tree and correct to the best of my knowledge, information and belief. I also understand that the statements contained herein are subject to the penalites of 18 Pa. C.S.A. Section 4904 relating to unswom falsification to authorities. DATED: September 18, 2001 'x~S S. SORRENTINO No. CI-01-08688 EXHIBIT "A" No. CI-01-08688 Proposal ....... Dennis R. Hackman 2181 Ehzabethtown Rd. Eliza~ethtown, PA 17022 (717)3672348 1-S00488-2244 We hereby submit specifications and estimates for: Page No.~ of Pages · Shingle Roofing · Rubber Roofing · Replacemer~ Windows · Vinyl Siding · Mum. Soffit & Fascia · Seamless Spouting / / Clean up ~nd haul aw-ay all debris. ,amy building per~uts needed to perform above mentioned work will be the homeown~'s responsibLlity and cost. Any additional roof layers, flashing needing replac~t or reworked, or rotten wood wil] be extra charge to contract price. Any cancellation of this proposal a/ter three business days subject to ten percent penalty of total contract. We pra~ose hereby lo famish material and labor- complete in accordance with above specifications, for the ~um of: dollars ($ AulhorizedSignature ~':~ ~/ff~3~ NOTE:Thi. p--~almaybewithdrawnbyu, i~nota¢.ptedwith'u~--~y~. No. 01-01-08688 £XI-IIBIT "i3" No. CI-01-08688 Dennis R. Hackman 2181 Elizabethtown Rd. Elizabethtown, PA 17022 (717) 367-2348 1-800-788-2244 A I']nance Charge o! I V~ % per month, which I$ an a ~ No. CZ-01-08688 PROOF OF SERVICE OF NOTICE OF APPEAL AND RULE TO FILE COMPLAJNT ~ Proof of Sert~ce MUST BE FIL ~ W177qlN ~ (f OJ DA Y$ AF ~ =~f fffft~ the noffce of aplOe~l. Check COMMONW~aJ..TH OF I=~.NI,~'YI.V, NqlA .AFFIDAVIT: I herabyswear or afra'm mat I served ~ a c~.ofthi Nol~ce OfAppeaLComl, non pleas No.~'uP°n Dk~rlct JuS~ce d--'-n~ t~?re~n on ~re~eipt attached he~utu, and upen the appellee, (name) l::~ol~rl'15 )~ ~ ~fl/I ~ , on and further that I ~rved the Rule to File a Complaint accompanying t~e above Notice of Appeal upen the appe~e(s) to whom the Rule was addm~ed on~~_~ ~ a,~Ohl, [] ~ personalse~ce ~ by cerltlled/regl~ered rnal, sender's receipt attached herebo. SWORN (AFRRMED) ANL:) ~UB,.~,RIBED BEFORE ME THIS _. OTARIAL SEAL ~ N. YOFFE, Notary public HllliBoto, Oumberland County ~N~O{Imflll~on Expires Oct. 23, 2004 My Cammies/an Expires on. ,1,9 Postage Ce~ified Fee Return Receipt Fee (Endorsement Required) Restricted Delivery Fee (Endorsement Required) Postrnark Here Postage Certified Fee Return Receipt Fee (Endorsement Required) Restricted Delivew Fee (Endorsement Required) Total Postage & Fees 2, I0 $ 5,q¢ Postmark Here SIYV 886 I. ~$1J~doo ~,.... * S I. - ~'~ t, INI:IO.-I · qons JOj .p.md uJn!tueJd pue lsu!e§e peJnsu! ~lleo~!.oeds sselun '/~uedoJd pe~equJnoue eq~,jo uo!ssessod u! pemeUl ue ~Cl uo!leJoes, JO lueuJelzzequJe 'uo!sJe4uoo peJeN~a i~u si lseJelU! s,~ued peJnoes eq~ 'Je^eMoH ~ .3tJetUeejl~e eq~, JOt teJelellOO se plet~ Sellpnoes .pue lueuJeeJ§e /~.Jnoes eqi jo luetuu§!s~e IlnJ eN. eoeJ ileqS e~ S!Cll Ul :'3seJe),u! penJooe eql snld lueuJeeJ§e /qpnoes-ecll uo enp lunouJe §ulu!~uJeJ eLll /kurd peJnoes eLI1 Xed ~uJ e~ 'uo!Ido Jno ~ (~ Jo /~1. noes eql Jepun petcreJ§ f~ued pe~noes ecl~, jo. S~l§p ecl~ lie o~, 'SSOl eLll JOj pled ®~altur~ouJe eLI1 '0), dn 'pe~eD..oJqns eJ~ e~ (~ moX o1' ~ueuJXed /[uep~.p .u~, ssol ~ JOJ/~tJ~,d peJnoes eLI1 ~ed ®~ it. 'o ' ? ' 'l,~e seqel uo~ IleOU~O e~ep eqi e?oleq sX~p Ot ~eel ~e f~md pe~noes e~Lp,'~.IbU' II!~ e~ '~!lod S!.q), leou~o e~ Jl~q .~. 'esn~lo s!ql ~q pe§u~qo sselun fku~cl peJn°es ~Ll~ m,/qdd~ ~O!lod s!Lp, Jo · os op oi Pel.rej s~eq peJnsul u~ ~. · n udoJj eollou §u!N. eoeJ ~eve s~p 09 ulLIl!,t~ SSOl lo tooJduJo~s -'peu§!s ~ pel~.uJqns pLm '.uJnluJeJd eq~ · ed ol peloel§eU SeLl pemSUl u~ t!. puamep uo ~O!lod s!Lp, jffpun enp ...n!uJeJd eqi Pl~d (~ '.eJ~/~e ~[ue3eq/kued peJnoes eq3 to qsp u! e§u~qo le!~uelsqns Jo ~ou~dnooo 'd!LISJeu~o uL e§u~qo ~ Jo en pe~),ou (~ COMMONWEALTH OF PENNSYLVl COURT OF COMMON PLEAS JUDICIAL DISTRICT OTICE OF APPEAL FROM DISTRICT JUSTICE JUDGMENT COMMON PLEAS NO, ~ .dT./I _~/%~:~ ~5 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 mentioned below. (DEFENDAND CLAIMNO. INA EOEAPPEL ~TO I ATTORN 0 E t ~ LT I ThiSR.c.P.J.p.bl°ck wilINo.bel008B.signed ONLY when this notation is required under PA. C/ If appelmn?~, gI~p{3~PA_ , R C.P.5. O. This notice of Appeal, when received by the District Justice, will operate as No. 1001(6)) in act/on before district Justice, he A SUPERSEDEAS to the Judgment for possession in this case. MUST FILE A COMPLAINT within twenty (20) days after filing his NOT/CE of APPEAL. PRAEClP~ ~~U~ m ~E~MPLAINT AND RULE TO FILE (This s~tion of form to be used ONLY when appellant was D~ENDAN r see PA R.C.P.J.P. No. 1001(7) in a~ion before District Justice. IF NOT USED, detach from ~opy of notice of appeal to be se~ed upon appellee PRAEClPE: To Prothonota~ Enter rule u~nX' ~~ ~' ~(~¢~ , appellee(s), to file a complaint in this appeal (Common Pleas No. ~.~ ' ~ ~ "(~within twenty (20) days after se~i~l~[~ff~nt~ o~udgment of non pros. ~ ~ ' ~ignature of aPPellant or hl~ttomey o; a~ent .UL : (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 WILL BE ENTERED AGAINST YOU UPON PRAECIPE. (3) White - Prothonotary Copy Green - Cour[ File Copy Yellow - Appelant's Copy Pink - Appeffee Copy Gold - D. J: Copy The date of service of this rule if service was bY mail is the date of the mailing· ,,.-'.-I ..->J t ,.,~. Y: / , Year ENTERED a?;<2 r IL,LU Sigr~atoroof'ProthonolarYo/Oel~u~y i00t ~,UG 29 PH 12:25 ,-':::iti;-;b:;] ' i'; :"; OFFICE Ptoth.- 76 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 the notice o! appeal. Check applicable boxes) COMMONWEALTH OF PENNSYLVANIA COUNTY OF k0 ~'~ ~'P~' ; SS AFFIDAVIT: I hereby swear or affirm that I served __, upon the District Justice designated therein on [~ a c°py °f the N°tice °f Appeal' C°mm°n Pleas ~;~ar ~ , [~by p~rsona, service [~] by (caf'tiffed) (registered) mail. sender's (date of service) _ (name_ receipt attached hereto, and upon the appellee, , year ....... [] by personal service [] by (certified) (registered) mail, sender's receipt attached hereto. []~] and further that I served the Rule to File a Complaint accompanying the above Notice of Appeal upon the appellee(s) to whom the Rule was addressed on ., year_ , [] by personal service [~ by (certified) (registered) mail, sender's receipt attached hereto. SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS DAY OF , YEAR Signature of official before whom aff~davit was made My commission expires on , year coMMONWEALTH OF PENNSYLVA~~ cOURT OF coMMON PLEAS JUDICIAL DiSTRiCT NI,--'ICE OF APPEAL FROM DISTRICT JusTICE juDGMENT coMmON pLE^S No. O_ q::-OI NOTICE OF APPEAL Notice is given that the appellant has flied in the above Court o! Common Pleas an appeal from the iudgmerit rendered by the District Justice on the date and in the case mentioned below. __ ~o~ N"~-~Ap p ELLANT STATE ZiP CODE ~ ~is required under ~' ~ ';;~;;01(6)) in action before district justice, he This block w~tl be s~gned .... · .... ~a INT w~thm twenty (20) Signature of Prothonotary or Dep~y ~ PRAECIPE TO ENTER RULE TO FILE coMPLAINT AND RULE TO FILE (This section of form to be used ONLY when appellant was QEFENDAN [ (see PA R.C.P.J.P. No. 1001(7) in action defore Oistrict 3ustice. iF NOT USED, detach ~rom copy ut notice o~ appeal to be se~ed upon appellee. pRAECIPE: To Prothonota~ . ~. · ~-~, appellee(s), to file a complaint in this appeal Enter rule upon ~ seWi~r~fi~try o~udgment gl non pros. (1) You are notified that a rule is hereby entered upo~ you to file a complaint in this appeal within twenty(20) days eiter the date of se~ice oi this rule upon you by personal se~ice or by ce~ified or registered ma~l. (2J ~ you do not tile a complaint within this time, e juDGMENT OF NON PROS WiLL BE ENTERED AGAiNS~ YOU upON pRAECIPE. is the date of the mailing. (3) The date gl se~ice gl this rule [~ se~ice was bY mail White _ prothonotary Copy Green - Court File Copy yellow - Appelant's Copy pink Appellee Copy Gold - D.J. Copy ~ p~oth.-76 PROOF OF SERVICE OF NOTICE OF APPEAL '^' ...... ~ (ThYproof of service MUST BE FILED WITHIN TEN {10) DAYS Ac"'r~-I'~- HULE. TO FILE COMPLAINT COMMONWEALTH OF PENNSYLVANIA , , ~n m~ug the no,ice of appeal. Check applicable boxes) COUNTY OF AFFIDAVIT: I hereby SWear or affirm that I served []a copy of the Notice of Appeal, Common Pleas No. (date of service) receipt attached hereto, and upon the appellee, (name __, upon the District Justice designated therein on __, year---~_, [] by personal service [] by (certified) (registered) mai~, sender's _, year ...... [~ by personal service [] , oil ]and further that I served the Rule to File a by (certified) (registered) mail, Sender's receipt attached hereto whom the Rule was addressed on Complaint accompanying the above Notice of Appea~ upon the appellee(s) to mail, sender's receipt attached hereto. _ , year ...... [] by persona~ service [] by (certified) (registered) SWORN (AFFIRMED) AND SUBSCRIBED BEFORE ME THIS ~ DAy OF ~ ~, YEAR My commission expires on -----~, year COMMONWEALTH OF PENNSY~LVANIA COUNTY OF: LANCASTEB"~',~ 02-3 ?~09 ,_ JAYNE F. DUNCAN Add ..... 920 S SPRUCE ST P. O. BOX 511 4~LI ZABETHTOWN, PA Telephone (717) 367-4330 17022 ROBERT KASPER 3806 CONESTOGA RD CAMP HILL, PA 17011 NOTICE OF JUDGMENT/TRANSCRIPT ? "VIL CASE PLAiNTiFF: ~ NAME add ADDRESS rHACKMAN,~ D~IS R 2181 ELIZABETHTOWN RD ELIZABEr~I'{TO~3~', PA 17022 u J VS. DEFENDANT: NAME and ADDRESS U~PER, ROBERT 3806 ~STOGA ~P HILL, PA 17011 L Docket No.: ~-0000135-01 ~ Bate F eO: THIS IS TO NOTIFY YOU THAT: Judgment: ~-~ Judgment entered for: was ~-~ Judgment was entered against:. (Name) in the amount of $ r-.~'41~ fi on F--~ Defendants are jointly and se Ily liable. [] Damages wdl be assessed or~'~): '!,, ~ This case dismissed without pr%,j~dice~I ~] Amount of Judgment Subject to Attachment/Act 5 of 1996 $ ~-,' ~ Levy is stayed for ~ daYS~"]~ generally stayed. FOR pT,ATNTIFF (Name) wacw~aN_ ~R~'I~TT.~ w (Date of Judgment) (Date & Time) Date: ' ~ Place: Time: ,I,~ ' ?~ Objection to levy f~as been file~-~nd hearing will be held: Amount of Judgment $ z168.00' Judgment Costs $ 63.50 Interest on Judgment $ ,00 Attorney Fees $. ,00 Total $ 531.50 Post Judgment Credits $ Post Judgment Costs $ Certified Judgment Total $ ANY PARTY HAS THE RIGHT TO AP~L~WITHIN 30 DAYS AFTER THE ENTRY OF JUDGMENT BY FILING A NOTICE OF APPEAL WITH THE PROTHONOT~R¥~CLERK OF THE COURT OF COMMON PLEAS, CIVIL DIVISION. YOU MUST INCLUDE A COPY OF THIS NOTIC~OF JUDGMEN.T/TRANSCRIPT FORM WITH YOUR NOTICE OF APPEAL. ~/'~/~i Date 0"-~~-~/ ~'c~.-~-- ~) , District Justice is a true and correct copy of the record of the proceedings conta n ng the judgment,?/, ~[~; ? 9 *,, Date Dist ri~t-J ~J't~e / certify that this My commission expires first Monday of January, 200~- SEAL AOPC 315-99 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff : CUMBERLAND COUNTY, : : NO. 02-4095 Defendant : CIVIL ACTION - LAW RESPONSE OF DEFENDANT TO PLAINTIFF'S COMPLAINT 1. Admitted. 2001. and correct qopy of the contract. "A" is altered in that paragraph 2 is crossed the contract is attached hereto as Exhibit "A". 4. Admitted. IN THE COURT OF COMMON PLEAS OF PENNSYLVANIA 2. Admitted. 3. Denied. The contract was accepted by Robert Kasper on June 19, It is also denied that what is attached as Exhibit "A" is a true What Plaintiff attaches as Exhibit off. A correct copy of 5. Denied. Removal of the second shingle roof and replacement of rotton plywood was not required. By way of further response, said work was never authorized by the Defendant. 6. Denied. Defendant never saw the invoice attached as Exhibit "B" to the complaint. What Defendant did receive was the invoice dated July 2, 2002 attached hereto as Exhibit "B". 7. Admitted. By way of further response, the office of District Justice Duncan improperly found that it had venue over this case even after the Defendant objected to Venue being in that office. In fact, in response to Preliminary Objections filed by the Defendant, the Lancaster County Court of Common Pleas found that Venue was not in Lancaster County but that suit should properly have been brought in Cumberland County. 8. Denied. August 29, 2001 is the date the appeal was filed. 9. No response required. 10. Denied. Defendant only contracted for Plaintiff,s Exhibit "A". With the exception of for which Defendant paid to Plaintiff, Defendant did not the work set iforth in Plaintiff's Exhibit "B". 11. Denied. Plaintiff did more work than Defendant him to do. 12. Denied. Defendant is contractually obligated. 13. No response required. 14. Admitted. 15. Denied. Never did Plaintiff ask Defendant if Defendant wanted the extra work to be done. Never did Plaintiff show Defendant why the extra work needed to be done. Accordingly, since work was done on Defendant,s house which Defendant did not authorize, the value of that work is zero. 16. Admitted Defendant refuses to pay the $468.00. Denied that Defendant owes Plaintiff $468.00. By way of further response, Plaintiff did not make repeated demands for payment. Only one demand for payment was made. the work set forth in Item #1 for $1,383.00, contract for authorized Defendant has paid to Plaintiff all amounts for which WHEREFORE, Defendant requests that Plaintiff,s complaint be dismissed. YOFFE & YOFFE, P.C. ~ /~ef~rey~N. Yoff~,'Esquire Attorney for Robert Kasper 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933 DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-4095 CIVIL ACTION - LAW VERIFICATION I hereby state that I am an adult individual who is authorized to make this verification and that the facts set forth in the foregoing response to complaint are true to the best of my knowledge, information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. ~4904 relating to unsworn falsification to authorities. Dated: DENNIS R. HACKMAN, VS. ROBERT KASPER, Plaintiff Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : NO. 02-4095 : : CIVIL ACTION - LAW CERTIFICATE OF SERVICE The undersigned certifies that served a true and correct copy of the on James S. Sorrentino, Esquire. depositing the same in the United States prepaid and addressed as follows: James S. Sorrentino, Esquire 600-H Eden Road Lancaster, PA 17601 on the date indicated below, he foregoing response to complaint Service was accomplished by Mail, first class, postage Date: October 23, 2002 YOFFE & YOFFE, P.C. ~_~'P'~EY'~q. YOFF~, ESQUIRE Attorney for Defendant 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney ID No. 52933  Proposal Page No. of Pages Dennis R. Hackman ; Shingle Roofing 2!81 Elizabothtown Rd. . (717) ~7-~ 1-~-7~-~ · ' ~e h~b~ submi~tiohs a.~ ~d~ for: ~au~ away all debris ~ roof la~/e~s, flashhlg need~g replaced or reworked, or rotte~ wood wffi be extra charge to contract price. ~y~"~at~on of th~ PrOl:~al after thr~ Ix,~i~ da~ ~ub~-t to t~ perc~t penal O/~ T~ Pmpo~e hereby to fumxeh material ~nd labor- mmpleie.m ~ccordance with above ~'ifica~o~, ~fo~. th~ ~m of: , - - . . ' propOSaL {nay t~ withdrawn by bm il' not accepted wllhht~.~ ~ V _.~ '~ ......... ~ by ~s if not accepted within .~,~=. Signature Si~n~h~re EXH~B'r~ Dennis R. Hackman 2181 Elizabethtown Rd. Elizabethtown, PA 17022 (717) 367-2348 1-800-788.2244 /v'.~. A ~nance Cha~g¢ o[f ~ % per monlh, w~lch l~ an ann ualp~en~ge tale ~ 18~. wl~ be cha~ged on all ~1 due ac~un~ EXHIBIT "B" DENNIS R. HACKMAN, Plaintiff ROBERT KASPER, Defendant RULE 1312-1. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 02-,4095 CIV/L 19 The Petition for Appointment of Arbitrators shall be substantially in the following form: PETITION FOR APPOINTMENT OF ARBITRATORS TO THE HONORABLE, THE JUDGES OF SAID COURT: James S. Sorrentino, Esquire , counsel for the plaintiff/defendant in the above action (or actions), respectfully represents that: 1. The above-captioned action ~ is fftYd9 at issue. 2. The claim of the plaintiff in the action is $_ ~31 50 The counterclaim of the defendant in the action is _ N/A The following attorneys are interested in the case(s) as counsel or are otherwise disqualified to sit as arbitrators: ~ WHEREFORE, your petitioner prays your Honorable Court to appoint three (3) arbitrators to whom the caSe shall be submitted. foregoingpetitio.~,, K f~'~/O ('~ Esq., and actions) as prayed for. Respectfully submitted, S S. SORRENTINO ORDER OF COURT , ~ ~, in con/si~eration of the _, Esq., are a ointed ' '//' / PP ar~itr~Ors in the above captioned action (or Dennis R. Hackman, Plaintiff V. Robert Kasper, Defendant ) ) ) ) In The Court of ¢omnou Pleas of Cumberl--d Couuty. Pennsylvania HO.. 02 , .4095 CIVIL ~ #e do oolenmly m~ear (or affirm) that ye F~ll oupport, obey and defend ~he Constitution of the Un, ted States and the ConstituZtou of this Counon- vealth and that ye will discharge the dutie A~ARD ~e, the undersiKaed arbitrators, h.aviag been duly appointed and (or .'affirmed), make the fo~ovia$ award, sworn (Note: If d~ages for de~ay are avarded, they sha~! be separately stated.) applicable. ) flute o~ Heari~K: Date o£ Award: · Arbitrator, dissents. (Insert name if award was entered upon ~he docket and otice thereof given by mail to the n ~ ;__.. ., the above parties or their attorneys. Arbitrators' compensation to be ~. paid upon appeal: Deput~_ --..~'oo 0 04-~,