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Home My WebLink About2007-4319 Civil HOGG PROPERTIES, LLC, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MARIA TSIRIGOTIS AND : ERIC NEARHOFF, : DEFENDANTS : 07-4319 CIVIL TERM IN RE: MOTION TO REINSTATE SUPERSEDEAS OPINION AND ORDER OF COURT Bayley, J., March 17, 2008:-- January 11, 2007 On , plaintiff, Hogg Properties, LLC, leased a premises for $755 per month at 19 Gettysburg Pike, Upper Allen Township, Cumberland County, to July 12, 2007 defendants, Maria Tsirigotis and Eric Nearhoff. On , plaintiff obtained a judgment against defendants before a Magisterial District Judge for possession of the July 23, 2007 property and for monetary damages for unpaid rent. On , pursuant to Pa.R.C.P.M.D.J. 1002 A, defendants filed a timely appeal and deposited unpaid rent to the Prothonotary upon which a supersedeas was issued. Payments of rent have thereafter continued to be deposited by defendants. February 20, 2008 On , plaintiff filed a “Praecipe to Terminate Supersedeas 1 Pursuant to PA.D.J.R. 1008(B).” The reason set froth was “the Defendant’s failure to make the monthly rental payments from and after February, 2008.” The Prothonotary February 22, 2008 terminated the supersedeas. On , defendants filed an “Emergency Motion to Reinstate Supersedeas.” On the same day, they deposited $755 in escrow February 22, 2008, with the Prothonotary. On this court entered an order temporarily __________ 1 The proper designation is Pa.R.C.P.M.D.J. No. 1008 B. 07-4319 CIVIL TERM February 26, 2008 reinstating the supersedeas and scheduled a hearing. On ,plaintiff March 14, 2008 filed an answer to the motion. A hearing was conducted on . Pa.R.C.P.M.D.J. No. 1008 B, provides: When an appeal is from a judgment for the possession of real property, receipt by the magisterial district judge of the copy of the notice of appeal shall operate as a supersedeas only if the appellant ] at the time of filing the appeal, deposits with the prothonotary a sum of money (or a bond, with surety approved by the prothonotary) equal to the lesser of three (3) month’s rent or the rent actually in arrears on the date of the filing of appeal, based upon the magisterial district judge’s order of and, thereafter, depositscashwith the judgment, or bond prothonotary ina sum equal to the monthly rent which becomes due during the period of time the proceedings upon appeal are pending in the court of common pleas, such additional deposits to be made within thirty (30) days following the date of the appeal, and each successive thirty (30) day period thereafter . Upon application by the landlord, the court shall release appropriate sums from the escrow account on a continuing basis while the appeal is pending to compensate the landlord for the tenant’s actual possession and use of the premises during the pendency of the appeal. In the event the appellant fails to deposit the sums of money , required by this rule when such deposits are due, the or bond, prothonotary, upon praecipe filed by the appellee, shall terminate the supersedeas . Notice of the termination of the supersedeas shall be forwarded via first class mail to all parties, but if any party has an attorney of record named in the complaint form or other filings with the court, notice shall be given to the attorney instead of to the party. Notice to a party that does not have an attorney of record is sufficient if mailed to the party’s last known address of record. Where the deposit of money or bond is made pursuant to this Rule at the time of filing the appeal, the prothonotary shall make upon the notice of appeal and its copies a notation that it will operate as a supersedeas when received by the magisterial district judge. (Emphasis added.) By February, 2008, when counting continuous thirty day periods from the date the appeal was filed on July 23, 2007, the end of the last thirty day period was on -2- 07-4319 CIVIL TERM thth February 18. The Prothonotary terminated the supersedeas on February 20. nd Defendants did not deposit the rent of $755 until February 22. Notwithstanding, defendants maintain that the deposit was timely because it was not due until February rd 2 23, the monthly anniversary date from July 23, 2007. Rule 1008 B is not ambiguous. Additional deposits of rent with the Prothonotary to secure the continuation of a supersedeas must be “made within thirty (30) days and each successive thirty (30) day period following the date of the appeal, th thereafter .” Black’s Law Dictionary, 7 Edition, defines “successive” to include “following in order; consecutive,” while an “anniversary date” is a “recurring date.” Plaintiff’s interpretation of the rule is correct. The phrase “each successive thirty (30) day period thereafter” requires the counting of consecutive days. It does not create a recurring anniversary date. Defendants did not deposit $755 that was due on February 18, 2008, until February 22, 2008, two days after the Prothonotary, on the praecipe by plaintiff, properly terminated the supersedeas. Therefore, the following order is entered. ORDER OF COURT __________ 2 Defendants also maintain that plaintiff’s praecipe to terminate the supersedeas must be stricken because it violates Cumberland County Rule of Procedure 357(3). This local rule provides that where a judgment is entered by a district justice for possession of residential property, and an appeal is filed and a supersedeas issued pursuant to Pa.R.C.P.J.P. 1008 B, “if the appellant subsequently fails to pay rent into the Court when due, the appellee may have the supersedeas terminated on application to the Court.” This Rule was effective on October 15, 1978, and has not been vacated. It is now in conflict with Pa.R.C.P.M.D.J. 1008 B. This local rule is unenforceable because it is inconsistent with a general rule of the Supreme Court. Pa.R.C.P. 239(b)(1). -3- 07-4319 CIVIL TERM AND NOW, this _________ day of March, 2008, defendants’ Emergency Motion -4- 07-4319 CIVIL TERM IS DENIED. to Reinstate Supersedeas, The order entered on February 22, 2008, IS VACATED. temporarily reinstating the supersedeas, By the Court, Edgar B. Bayley, J. David J. Lanza, Esquire For Plaintiff Jordon D. Cunningham, Esquire For Defendants :sal -5- HOGG PROPERTIES, LLC, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MARIA TSIRIGOTIS AND : ERIC NEARHOFF, : DEFENDANTS : 07-4319 CIVIL TERM IN RE: MOTION TO REINSTATE SUPERSEDEAS ORDER OF COURT AND NOW, this _________ day of March, 2008, defendants’ Emergency Motion IS DENIED. to Reinstate Supersedeas, The order entered on February 22, 2008, IS VACATED. temporarily reinstating the supersedeas, By the Court, Edgar B. Bayley, J. David J. Lanza, Esquire For Plaintiff Jordon D. Cunningham, Esquire For Defendants :sal