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HomeMy WebLinkAbout2007-242 Civil PENNSYLVANIA CENTRAL : IN THE COURT OF COMMON PLEAS OF FEDERAL CREDIT UNION, : CUMBERLAND COUNTY, PENNSYLVANIA APPELLEE/APPELLANT : : V. : : DUWAYNE YOUNG AND : APRIL YOUNG, : APPELLANTS/APPELLEES : 07-0242 CIVIL TERM IN RE: PETITION TO REINSTATE APPEALS OPINION AND ORDER OF COURT Bayley, J., May 1, 2007:-- December 15, 2006Duwayne Young and April Young v. Pennsylvania On , in Central F.C.U. , Magisterial District Judge Clement entered a judgment in favor of December 18, 2006Pennsylvania Central F.C.U. v. Duwayne defendant. On , in Young and April Young , Judge Clement entered a judgment in favor of plaintiff and January 16, 2007 against defendants totaling $8,075. On , the Youngs filed a Notice of Appeal, with both judgments attached, upon which a Rule was entered against Pennsylvania Central F.C.U. to file a complaint within twenty days after service. On February 2, 2007 , April Young filed an affidavit of “Proof of Service of Notice of Appeal and Rule to File a Complaint.” The affidavit set forth, (1) that a copy of the Notice of Appeal was made on the District Justice on January 23, 2007, “by (certified) (registered) mail, sender’s receipt attached hereto,” and (2) that service was made against “appellee April Young on January 23, 2007.” Attached was a certified mail sender’s receipt and the certified mail return showing delivery to the Pennsylvania 07-0242 CIVIL TERM Central F.C.U. on January 23, 2007. February 1, 2007 On , Pennsylvania Central Federal Credit Union filed a praecipe to strike the appeal for failure to comply with Rule of Civil Procedure 1005B February 1, 2007 for Magisterial District Judges. On , the Prothonotary struck the April 5, 2007 appeal. On , Duwayne Young and April Young filed a “Petition to Reinstate Appeals.” The petition set forth: 2. Petitioners personally served District Judge Charles A. Clement on or about January 23, 2007 and served Appellee/Appellant by certified mail January 23, 2007. 3. On February 2, 2007, Petitioners filed a Proof of Service of Notice of Appeals and Rule to File Complaint, mistakenly indicating the wrong form of service on District Judge Clement and the wrong name for Appellee/Appellant. 4. The Proof of Service form was supposed to read that District Judge Clement was served by personal service and that Appellee/Appellant Pennsylvania Central Federal Credit Union was served by certified mail. 5. Petitioners also mistakenly believed she was to file the Proof of Service within twenty days of filing the notice of appeals, rather than within ten days as required by District Justice Rule 1005(B). The Pennsylvania Central Federal Credit Union filed an answer in opposition to the relief sought in the petition. MDJ Rule 1005B provides: The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004B, within ten (10) days after filing the notice of appeal. MDJ Rule 1006 provides: Upon failure of the appellant to comply with . . . Rule 1005B, the prothonotary shall, upon praecipe of the appellee, mark the appeal The Court of Common Pleas may reinstate stricken from the record. -2- 07-0242 CIVIL TERM the appeal upon good cause shown. (Emphasis added.) proffer a legally sufficient reason “Good cause” requires appellant to “ for reinstating Howland, Hess, Guinan & Torpey v. Perzel, the appeal.” (Emphasis added.) 667 A.2d 1163 (Pa. Super. 1995). The Verification on the Petition to Reinstate Appeals was signed by an attorney setting forth that the statements were “true and correct to the best of my knowledge, information and belief.” Pa. Rule of Civil Procedure 206.3 provides, “A petition or an answer containing an allegation of fact which does not appear of record shall be verified.” Rule 1024(c), provides: The verification shall be made by one or more of the parties filing the pleadings unless all the parties (1) lack sufficient knowledge or information, or (2) are outside the jurisdiction of the court and the verification of none of them can be obtained within the time allowed for filing the pleading. In such cases, the verification may be made by any person having sufficient knowledge or information and belief and shall set forth the source of the person’s information as to matters not stated upon his or her own knowledge and the reason why the verification is not made by a party. (Emphasis added.) The factual averments in the Petition to Reinstate Appeals are not properly verified. Therefore, there has been an inadequate proffer that Magisterial District Judge Clement was served with notice of the appeals from the judgments he entered on December 15 and 18, 2006. The Proof of Service of Notice of Appeal filed by April Young as to service against Judge Clement was clearly incorrect when it set forth that the certified sender’s receipt was attached, when in fact the attached sender’s receipt for which a certified mail return of service was also attached, was for the notice of the -3- 07-0242 CIVIL TERM appeals and the Rule to file a complaint sent to the Pennsylvania Central Federal Credit Union. Where there is no properly verified proffer that the Magisterial District Judge was ever served with the notice of the appeals in the first place, there is no good Howland, Hess, Guinan & Torpey v. Perzel, cause for reinstating the appeals. See supra. Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of May, 2007, the Petition to Reinstate Appeals, IS DISMISSED. By the Court, Edgar B. Bayley, J. Robert D. Kodak, Esquire For Pennsylvania Central Federal Credit Union Stacy B. Wolf, Esquire For Duwayne Young and April Young :sal -4- PENNSYLVANIA CENTRAL : IN THE COURT OF COMMON PLEAS OF FEDERAL CREDIT UNION, : CUMBERLAND COUNTY, PENNSYLVANIA APPELLEE/APPELLANT : : V. : : DUWAYNE YOUNG AND : APRIL YOUNG, : APPELLANTS/APPELLEES : 07-0242 CIVIL TERM IN RE: PETITION TO REINSTATE APPEALS ORDER OF COURT AND NOW, this day of May, 2007, the Petition to Reinstate Appeals, IS DISMISSED. By the Court, Edgar B. Bayley, J. Robert D. Kodak, Esquire For Pennsylvania Central Federal Credit Union Stacy B. Wolf, Esquire For Duwayne Young and April Young :sal