HomeMy WebLinkAbout99-6730 civil termMELISSA LAUGHMAN, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
Mo
RICHARD CASSEL,
DEFENDANT 99-6730 CIVIL TERM
IN RE: MOTION OF PLAINTIFF TO REINSTATE AN APPEAL
ORDER OF COURT
AND NOW, this ~L~''~''' day of April, 2000, the motion of plaintiff to reinstate
an appeal, IS DENIED,
Edgar B. Baying, J.'/
Linus E. Fenicle, Esquire
For Plaintiff /
Steven Howell, Esquire
For Defendant
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MELISSA LAUGHMAN, IN THE COURT OF COMMON PLEAS OF
PLAINTIFF CUMBERLAND COUNTY, PENNSYLVANIA
RICHARD CASSEL,
DEFENDANT 99-6730 CIVIL TERM
IN RE: MOTION OF PLAINTIFF TO REINSTATE AN APPEAL
OPINION AND ORDER OF COURT
Bayley, J., April 25, 2000:--
Plaintiff, Melissa Laughman, entered suit against defendant, Richard Cassel,
before a District Justice seeking damages on a claim that defendant appropriated to his
own use various items of her personal property. On October 27, 1999, the District
Justice entered judgment for defendant. On November 5, 1999, plaintiff filed an appeal
from the judgment in this court. Plaintiffs complaint was filed of record in the office of
the Prothonotary on December 1, 1999. On December 16, 1999, defendant filed a
praecipe to strike the appeal and the appeal was stricken by the Prothonotary. On
December 23, 1999, plaintiff filed a motion to reinstate the appeal. A Rule was entered
against defendant with an order that the motion would be decided pursuant to Pa. Rule
of Civil Procedure 206.7. Defendant filed an answer with new matter to which plaintiff
filed a reply. The depositions of three persons were taken and the issues have been
briefed and are ready for decision.
The basis of defendant's praecipe to strike the appeal was a violation of
99-6730 CIVIL TERM
Pa.R.C.P.D.J. No. 1006, which provides:
Upon failure of the appellant to comply with Rule 1004A or
Rule 1005B, the prothonotary shall upon praecipe of the appellee,
mark the appeal stricken from the record. The court of common pleas
may reinstate the appeal upon good cause shown. (Emphasis added.)
Pa.R.C.P.D.J. No. 1004(A) provides:
If the appellant was the claimant in the action before the district
justice, he shall file a complaint within twenty (20) days after filing his
notice of appeal.
Pa.R.C.P.D.J. No.100$(B) provides:
The appellant shall file with the prothonotary proof of service of
copies of his notice of appeal.., within ten (10) days after filing the notice
of appeal.
As to the requirement in Rule 1005(B), that appellant must file with the prothonotary
proof of service of copies of the notice of appeal within ten days after filing, the form of
service is set forth in Rule 1005(A), that provides:
The appellant shall by personal service or by certified or
registered mail serve a copy of his notice of appeal upon the
appellee and upon the district justice in whose office the judgment was
rendered .... (Emphasis added.)
Plaintiff filed proof of service of the Notice of Appeal in the office of the
Prothonotary on November 9, 1999, four days after she filed her appeal. That document
contains her sworn affidavit that she served copies of the Notice of Appeal upon the
District Justice on November 8, 1999, "by personal service," and on defendant Richard
Cassel on November 9, 1999, "by personal service." In her deposition plaintiff admitted
that her sworn affidavit was not correct. She testified that what she actually did was
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99-6730 CIVIL TERM
send copies of the Notices of Appeal to the District Justice and to defendant by regular
mail. However, defendant testified in his deposition that he never received a copy of a
Notice of Appeal by regular mail or otherwise.
Filing under oath with the Prothonotary a blatantly incorrect proof of service of
the Notice of Appeal does not satisfy the requirement of Rule 1005(B).
Notwithstanding, plaintiff argues that because both the District Justice and defendant
ultimately learned of her appeal that it still should be reinstated for good cause shown
under Rule 1006. The fallacy in this argument is that there is no credible evidence that
defendant himself was ever served a copy of the Notice of Appeal even by regular mail.
See Howland, Hess, Guinan & Toprey v. Perzel, 667 A.2d 1163 (Pa. Super. 1995).
We conclude, therefore, that plaintiff has not shown good cause for reinstating her
appeal.
This resolution makes it unnecessary to address the other issue raised by
defendant which is that when plaintiff's complaint was filed on December 1, 1999, Rule
1004(A) was violated because the complaint was filed twenty-six days after the filing of
the Notice of Appeal on November 5, 1999. Accordingly, the following order is entered.
ORDER OF COURT
AND NOW, this. ~"~ day of April, 2000, the motion of plaintiff to reinstate
an appeal, IS DENIED.
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99-6730 CIVIL TERM
By theCourt~, ~ /
Edgar--B. Bayl, ~' ~.~
Linus E. Fenicle, Esquire ,~
For Plaintiff
Steven Howell, Esquire
For Defendant
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