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HomeMy WebLinkAbout2004-5133 Civil DEMPSEY UNIFORM AND LINEN SUPPLY, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALL TUNE AND LUBE, DEFENDANT 04-5133 CIVIL TERM IN RE: PETITION TO OPEN JUDGMENT OPINION AND ORDER OF COURT Bayley, J., March 3, 2005:-- Dempsey Uniform and Linen Supply, Inc. instituted a civil action against All Tune and Lube in the office of District Justice Thomas A. Placey in Mechanicsburg, Cumberland County. The address of defendant in the proceedings before the District Justice is 6506 Carlisle Pike, Mechanicsburg, Pennsylvania 17050. That is defendant's correct address and is the address at which defendant was personally served with the complaint on April 13, 2004. The District Justice conducted a hearing on August 24, 2004, which defendant did not attend. Judgment against defendant was entered on that date for $6,885.18. On October 12,2004, pursuant to Pa.R.C.P.D.J. 402D, the judgment was entered in this court and notice was mailed to defendant at 6506 Carlisle Pike, Mechanicsburg. Defendant received the notice and filed a petition to open the judgment on November 5, 2004. A Rule was entered against plaintiff to show cause why the petition should not be granted. Plaintiff was directed to file an answer, and the 04-5133 CIVIL TERM order provided that the petition would be decided under Pa. Rule of Civil Procedure 206.7. No depositions were filed. Briefs were filed by both parties and argument was conducted on March 2, 2005. In its petition, defendant avers that the District Justice sent it notice of the hearing and notice of the judgment by "regular surface mail;" however, (1) it never received notice of the hearing on August 24, 2004, (2) it never received notice of the entry of the judgment on August 24, 2004, and (3) the first time it learned of the judgment was after it received notice of its entry on October 12, 2004, in this court. In its answer to the petition, plaintiff avers that it is without sufficient information to admit or deny the averments of non-receipt of the regular mail. The judgment entered by the District Justice on August 24, 2004, became final when no appeal was filed in this court within thirty days. Pa.R.C.P.D.J.1002A. Defendant seeks to open the judgment based on lack of notice of the hearing and entry of the judgment before the District Justice. In Breza v. Don Farr Moving & Storage Company, 828 A.2d 1131 (Pa. Super. 2003), the Superior Court of Pennsylvania stated that the "mailbox rule" provides that proof of a mailing raises a rebuttal presumption that the mailed item was received. The presumption is not nullified solely by testimony denying receipt of the item mailed. Id. Asserting that a letter was not received, without corroboration, is insufficient to overcome the presumption of receipt. Id. In the case sub judice, defendant's assertion of non-receipt is insufficient to -2- 04-5133 CIVIL TERM overcome the presumption that it received the notice of the hearing and notice of the entry of judgment before the District Justice which were sent by "regular surface mail." Accordingly, the following order is entered. ORDER OF COURT AND NOW, this day of March, 2005, the petition of defendant to open a judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Monica E. Baturin, Esquire For Plaintiff Lawrence A. Durkin, Esquire F or Defendant :sal -3- DEMPSEY UNIFORM AND LINEN SUPPLY, INC., PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. ALL TUNE AND LUBE, DEFENDANT 04-5133 CIVIL TERM IN RE: PETITION TO OPEN JUDGMENT ORDER OF COURT AND NOW, this day of March, 2005, the petition of defendant to open a judgment, IS DENIED. By the Court, Edgar B. Bayley, J. Monica E. Baturin, Esquire For Plaintiff Lawrence A. Durkin, Esquire F or Defendant :sal