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HomeMy WebLinkAbout98-6502/6503 civilHOPEWELL TOWNSHIP BOARD : IN THE COURT OF COMMON PLEAS OF OF SUPERVISORS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LANARK INVESTMENT FUND : NO. 98-6502 CIVIL TERM : : HOPEWELL TOWNSHIP BOARD : IN THE COURT OF COMMON PLEAS OF OF SUPERVISORS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MEADOWLAND HOLDINGS : NO. ~8-6503 CIVIL TERM : : IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE BAYLEY, GUIDO, J.J. ORDER AND NOW, this /~~ day of MARCH, 1999, Defendants' Preliminary Objections are DENIED. Each Defendant is directed to file an answer within twenty (20) days. By Edward E. Guido, J. Sally J. Winder, Esquire For the Plaintiff Toni Lee Cavanagh, Esquire For the Defendant :sld HOPEWELL TOWNSHIP BOARD : IN THE COURT OF COMMON PLEAS OF OF SUPERVISORS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : LANARK INVESTMENT FUND : NO. 98-6502 CIVIL TERM : : HOPEWELL TOWNSHIP BOARD : IN THE COURT OF COMMON PLEAS OF OF SUPERVISORS : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MEADOWLA~D HOLDINGS : NO. 98-6503 CIVIL TERM : : IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE BAYLEY, GUIDO, J.J. OPINION AND ORDER OF COURT Both of these cases arise from an appeal of a judgment entered by default by District Justice Perkins on October 21, 1998. On November 18, 1998 the Defendants filed an appeal to this Court pursuant to Pa. R.C.P.D.J. 1002. At the request of Defendants' counsel, a rule was issued directing Plaintiff to file a complaint within twenty (20) days. On December 11, 1998 the Plaintiff filed a complaint against each Defendant. Both Defendants filed preliminary objections to the respective complaints on December 28, 1998. The parties filed briefs and argued before this Court. Since the issues are identical in each case, we have consolidated the matters for purposes of this decision. NO. 98-6502 CIVIL - 98-6503 CIVIL DISCUSSION The sole issue raised in Defendants' preliminary objections is an attack on the jurisdiction of the district justice. They allege that Plaintiff never effectuated proper service of the district justice complaint upon them. Therefore, they argue that the district justice's judgment was a nullity. For the reasons hereinafter set forth, we must deny Defendants' preliminary objections. At the outset, it should be noted that if the Defendants wished to attack the jurisdiction of the district justice, they should have filed a praecipe for writ of certiorari pursuant to Pa. R.C.P.D.J. 1009. That rule provides in relevant part as follows: RULE 1009. PRAECIPE FOR WRIT OF CERTIORARI A. 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 or subject matter .... Pa. R.C.P.D.J. 1009(A). The rules go on to provide that "[a] judgment may not be the subject of both certiorari and appeal." Pa. R.C.P.D.J. 1015. The comments to Rule 1015 state: This rule forbids bringing both certiorari and an appeal. An appeal involves a trial de novo on the merits. . . without regard to any defects in the proceeding below, whereas certiorari does attack defects, not going to the merits, in the proceedings below. (emphasis added) Pa. R.C.P.D.J. 1015 note. NO. 98-6502 CIVIL - 98-6503 CIVIL The filing of the instant appeal and request for a hearing de novo effectively waived any defect in the district justice proceedings. Therefore, the Defendants' Preliminary Objections are DENIED. ~ ORDER AND NOW, this 18TH day of MARCH, 1999, Defendants' Preliminary Objections are DENIED. Each Defendant is directed to file an answer within twenty (20) days. By the Court, Sally J. Winder, Esquire For the Plaintiff Toni Lee Cavanagh, Esquire For the Defendant :sld /s/ Edward E. Guido Edward E. Guido, J. ~Even if the Defendants had followed the appropriate procedure and filed a praecipe for writ of certiorari pursuant Pa. R.C.P.D.J. 1009, it is clear that any attack upon the jurisdiction of the district justice would have failed. The parties agree that prior to the original hearing scheduled before the District Justice, Defendants' counsel requested and obtained a continuance. The default judgments were entered when the Defendants refused to appear at the rescheduled hearing, claiming defective service. Pa. R.C.P.D.J. 314 (C) specifically provides that "[t]he appearance of a defendant in person or by representative . · . shall be deemed a waiver of any defect in service .... " See also Naids v. Bonnie Sugarman, Ind., 455 Pa. Super. 401, 688 A.2d 709 (1996).