HomeMy WebLinkAbout2021-00192
MS RESTAURANT & EQUIPMENT : IN THE COURT OF COMMON PLEAS OF
SALES, LLC, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
v. : No. 2021-00192 Civil Term
:
: CIVIL ACTION- LAW
ADVANCED BUILDING :
CONSTRUCTION, LLC, :
Defendant :
OPINION PURSUANT TO PA. R.A.P. 1925(a)
Hyams, J., July 26, 2021.
th
In this civil case, Defendant has appy 14, 2021 Order
sustaining Plaintif. The sole
issue on appeal has been expressed in a statement of errors complained of on appeal as follows:
Whether, upon Appellant's failure to appear at oral argument, the Court in
granting the Appellee-Plaintiffs Preliminary Objection in the nature of a Motion
to Strike Appellant's Answer committed prejudicial error since the record before
the Court at the time of oral argument did not establish that Appellant was served
with a copy of Praecipe for Listing Case for Argument as required under C.C.R.P.
1028(c)(2).
This opinion in support of the order appealed from is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
PROCEDURAL BACKGROUND
Complaint. These Preliminary Objections were accompanied by a Brief in Support. On March
30, 2021, Plaintiff filed a Praecipe for Listing Case for Argument Court, which included an
30, 2021. Argument was held via Zoom on May 14, 2021 before Judges Placey, Smith, and
Hyams. No one appeared on Zoom or at the Cumberland County Courthouse on behalf of
Defendant and no brief was filed on behalf of Defendant.
DISCUSSION
Cumberland County Local Rule 1028(c)(2) case
shall be listed by filing a praecipe, in duplicate, with the Prothonotary. The party listing the case
for argument shall serve a copy of the praecipe on all counsel and any unrepresented party.
Defendant seems to infer from C.C.R.P. 1028(c)(2), a requirement of filing of a proof of service
or an inquiry by the court as to the manner or completion of service. However, neither
requirement are included in the cited rule, nor is this Court aware of such a requirement. It is
also of note that Defendant does not suggest they were not served properly, but only that
Indeed, the record before this Court at the time of oral argument reflected that
counsel provided signed verification that he would notify all parties in writing that the case was
listed for argument court. As C.C.R.P. 1028(c)(2) does not contain any proof of service filing
requirement, it is the understanding and practice of this Court to depend on signed averment of
counsel that service will be promptly made on all parties.
_______________________
Carrie E. Hyams, Judge
Thomas O. Williams, Esquire
Reager & Adler, P.C.
2331 Market Street
Camp Hill,PA 17011-4642
Attorney for Plaintiff
Matthew E. Hamlin, Esquire
P.O. Box 659
1215 Summit Way
Mechanicsburg, PA 17055-0659
Attorney for Defendant