The URL can be used to link to this page

Home My WebLink About2007-7487 Civil THOM LEWIS, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 07-7487 CIVIL MARK BECKERMAN, : Appellee : IN RE: APPELLANT’S MOTION TO REINSTATE STRICKEN APPEAL BEFORE HESS, J. OPINION AND ORDER Before the court is a Motion to Reinstate a Stricken Appeal. Appellant, Thom Lewis, is seeking reinstatement of an Appeal from two Magisterial District Justice Judgments, on both Appellee Mark Beckerman’s complaint and Appellant Lewis’s cross-complaint. On November 16, 2007, judgment was entered in favor of Appellee Beckerman on both Beckerman’s original complaint, and Appellant Lewis’s counterclaim. Less than a month later, on December 13, 2007, Appellant Lewis filed a Notice of Appeal and Praecipe to Enter Rule to File Complaint with the Prothonotary, attaching both the notice of judgment on Appellee Beckerman’s complaint and the notice of judgment on Appellant Lewis’s counterclaim. Appellant filed his complaint on January 8, 2008. Two days later, Appellee Beckerman filed his Praecipe for Striking Appeal from the Record, asserting that Appellant failed to file his complaint within the twenty-day period in accordance with Pa. R.C.P.D.J. 1004A. On January 11, 2008, the appeal was stricken in accordance with Pa. R.C.P.D.J. 1006. As noted above, Appellant is now seeking reinstatement of that appeal. Rule 1004(A) of the Pa.R.C.P.M.D.J. requires an appellant to file a complaint within twenty days after filing his notice of appeal. If the appellant fails to do so, Rule 1006 provides NO. 07-7487 CIVIL that “the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record.” Pa.R.C.P.M.D.J. No. 1006. The Rule further states that “[t]he court of common pleas may reinstate the appeal upon good cause shown.” Id. This requirement of a showing of good cause mandates that, in order to for the appeal to be reinstated, an appellant must “proffer some legally sufficient reason for the trial court to reinstate its appeal.” Anderson v. Centennial Homes, Inc., 594 A.2d 737, 739 (Pa. Super. 1991). Under Pennsylvania law, however, Rule 1006 is not self-enforcing. See Friedman v. Lubecki, 524 A.2d 987, 989 (Pa. Super. 1987). Friedman concerned an appellant who timely perfected an appeal of a judgment entered against him. See id. at 988. He filed his complaint twenty-four days later. Four days after he did so, the appellee praeciped to strike appellant’s appeal for failure of appellant to file his complaint within twenty days of the filing of his notice of appeal. See id. Appellant then filed a petition to reinstate his appeal, alleging that a shortened holiday work period prevented timely preparation and filing. The petition was denied. See id. On appeal from this denial, the Pennsylvania Superior Court found that “the Rule 1006 procedure must be triggered before an appellant files his Complaint in Common Pleas Court . . . . [T]he filing of the [c]omplaint by appellants pursuant to Pa.R.C.P.D.J. 1004A barred appellee from thereafter invoking her remedy under Pa. R.C.P.D.J. 1006.” Friedman, 524 A.2d at 989. Appellee argues, conversely, that Friedman does not apply to the instant case, contending that the Notice of Appeal failed to adequately notify Appellee of the nature of the appeal being taken. Appellee states that he was provided with absolutely no notice that Appellant was appealing from the judgment against Appellant as Plaintiff until the complaint itself was filed, as Appellant did not provide separate notices of appeal when appealing from the judgments as both 2 NO. 07-7487 CIVIL Plaintiff and Defendant. Under American Appliance v. E.W. Real Estate Management, Inc., 769 A.2d 444, 448 (Pa. 2001), however, “[t]here is no language . . . [in Rule 1004] that expressly requires the filing of a separate notice of appeal when an appellant (as opposed to an appellee) appeals from judgments on a complaint and cross-complaint.” (Emphasis in original.) In American Appliance, plaintiff American filed a complaint in district justice court against defendant E.W. for breach of contract, attempting to recover payment for various household appliances purchased pursuant to various sales contracts. See id. at 445. The following year, E.W. filed a cross-complaint against American, alleging property damage arising from American’s improper installation of a washing machine; both the complaint and the cross- complaint were given the same docket number. See id. When E.W. did not appear at the hearing, the district justice entered two separate default judgments; one in favor of American on its complaint, and the other in favor of American on the cross-complaint. See id. E.W. filed a timely notice of appeal with the common pleas court, attaching to such notice of appeal both the notice of the judgment on the complaint and the notice of the judgment on the cross-complaint, as well as a praecipe to enter rule upon American to file a complaint. See American Appliance, 769 A.2d at 445. American filed its complaint, and E.W. filed an answer, new matter and counterclaim. American then filed preliminary objections, in the nature of a motion to strike E.W.’s counterclaim, contending that E.W. was simply reasserting the cross-complaint it previously filed in the district justice court and, as E.W. never appealed that judgment as required by 1004, E.W. could not pursue the claim in a court of common pleas. See id. The common pleas court sustained American’s preliminary objections, striking the counterclaim solely on the ground that E.W. failed to preserve the claim asserted in the cross- 3 NO. 07-7487 CIVIL complaint, as it did not file a separate notice of appeal from that judgment. The Superior Court affirmed on appeal, holding that “when separate judgments on a claim and counterclaim are entered at the district court level, the rules require that the adverse judgment on the counterclaim be appealed separately in order to preserve the issues raised therein.” Id. at 446. On appeal, the Pennsylvania Supreme Court reversed, finding that “there is no language … that expressly requires the filing of a separate notice of appeal when an appellant (as opposed to an appellee) appeals from judgments on a complaint and cross-complaint.” American, 769 A.2d at 448. E.W.’s attachment of the notices of judgment from the complaint as well as the cross-complaint, the court reasoned, sufficiently satisfied Rule 1002’s requirement concerning appeals. See id. The rules do not treat claims and cross-claims independently. See id. Complaints filed by the defendant are given the same docket number as those filed by the plaintiff, and a defendant may bring a claim before the district justice that does not arise from the same transaction or occurrence as the plaintiff’s claim, and a single hearing is held for all claims. See id. Finally, the court found that “[i]nterpreting the rule to require preparation of a separate notice of appeal, along with the payment of an additional filing fee, does not serve the intended simplicity of district justice proceedings.” Id. at 448-49. The holdings of American are clearly applicable to the instant action. Like E.W., the Appellant in the case at bar attached both notices of judgment as required by Rule 1002, and included a praecipe to enter rule upon Appellee Beckerman to file a complaint. Finally, Appellant Beckerman contends that “Mr. Lewis’ Complaint fails to provide any facts establishing a cause of action, is slanderous, appalling, and thus any continuation of this case will only serve to waste the court’s time with several preliminary objections to dismiss the 4 NO. 07-7487 CIVIL Complaint[‘s] palpably frivolous claims.” Appellee’s Br. in Opp. To Appellant’s Mot. To Reinstate the Stricken App. 7-8. A brief in opposition to the pending motion is not the proper vehicle by which to raise such allegations. Though Appellee asserts that the filing of preliminary objections will only waste the court’s time, it nevertheless remains the proper method by which to raise such issues. ORDER AND NOW, this day of April, 2008, the Motion of Appellant, Thom Lewis, to Reinstate Appeal is GRANTED. BY THE COURT, _______________________________ Kevin A. Hess, J. Thom Lewis, Pro Se Appellant Eric Wiener, Esquire For the Appellee :rlm 5 THOM LEWIS, : IN THE COURT OF COMMON PLEAS OF Appellant : CUMBERLAND COUNTY, PENNSYLVANIA : vs. : CIVIL ACTION – LAW : NO. 07-7487 CIVIL MARK BECKERMAN, : Appellee : IN RE: APPELLANT’S MOTION TO REINSTATE STRICKEN APPEAL BEFORE HESS, J. ORDER AND NOW, this day of April, 2008, the Motion of Appellant, Thom Lewis, to Reinstate Appeal is GRANTED. BY THE COURT, _______________________________ Kevin A. Hess, J. Thom Lewis, Pro Se Appellant Eric Wiener, Esquire For the Appellee :rlm