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HomeMy WebLinkAbout99-3033 civilBECKLEY AND MADDEN, PLAINTIFF/RESPONDENT V. LYDIA KELLER, DEFENDANT/PETITIONER 99-3033 CIVIL TERM IN RE: PETITION OF LYDIA KELLER TO STRIKE OR OPEN A JUDGMENT BEFORE BAYLEY, J. OPINION AND ORDER OF COURT Bayley, J., August 20, '!999:-- On January 8, 1999, Beckley and Madden, a law firm, filed a civil complaint against Richard and Lydia Keller in Magisterial District Number 12-1-04 in Dauphin County. The complaint sought a total of $3,957.45 with interest for "the fair and reasonable value of the services provided by Plaintiffs t(~ Defendants." On February 18, `1999, the District Justice entered judgment against Richard Keller and Lydia Keller in the amount of $4,073.99? A timely pro se notice of appeal containing a praecipe to file a complaint, signed by Richard Keller and naming himself as appellant, was filed in the Court of Common Pleas of Dauphin County, Pennsylvania. The caption on the appeal is Beckley and Madden versus Richard and Lydia Keller. On April 29, 1999, IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ' The District Justice entered separate judgments against Richard Keller and Lydia Keller each in the amount of $4,073.99, despite the fact that amount was the total of the debt plus interest and costs claimed by plaintiff to be owed by both defendants. 99-3033 CIVIL TERM Beckley and Madden filed a complaint against both Richard Keller and Lydia Keller seeking a total of $3,957.45 with interest it alleges is due from the Kellers. Richard Keller and Lydia Keller then signed and filed a pro se answer to the complaint with new matter. On May 19, 1999, Beckley and Madden had the $4,073.99 Dauphin County judgment against Lydia Keller transferred to Cumberland County. A writ of execution was issued on which a levy was made on the personal property of Lydia Keller. On June 3, 1999, Lydia Keller filed this petition to strike or open the judgment with a stay of execution. A Rule was entered against Beckley and Madden pursuant to Pa. Rule of Civil Procedure 206.7 to show cause why the relief should not be granted. No depositions were taken. Under Rule 206.7(c), the issues shall be decided on the petition and answer and all averments of fact responsive to the petition and properly pleaded in the answer are admitted. Briefs were filed and oral argument held on August 10, 1999. Petitioner maintains that the judgment entered against her in Dauphin County could not be legally transferred to Cumberland County because of the pending appeal in Dauphin County to which respondent filed a complaint against both her and her husband. Respondent maintains that because the appeal from the judgment in Dauphin County was signed by Richard Keller only, and despite the fact that it was captioned against both defendants and that it responded to the appeal by filing a complaint against both Lydia Keller and Richard Keller, the judgment against Lydia -2- 99-3033 CIVIL TERM Keller is final and thus was properly transferred to Cumberland County. In its brief, respondent states that it filed a complaint in Dauphin County against both Richard Keller and Lydia Keller "out of an abundance of caution" in case this court rejects its position. It concludes that if it had failed to name Lydia Keller as a defendant and this court grants her petition to strike or open the Cumberland County judgment, then Lydia Keller could obtain a judgment of non pros in Dauphin County. Beckley and Madden further concludes that if its judgment against Lydia Keller is satisfied in Cumberland County she will have an affirmative defense of payment to the action against her in Dauphin County, and it will withdraw its complaint against Richard Keller. Pa. Rule of Civil Procedure for District Justices 1002(A) provides that "A party aggrieved by a judgment for money .... may appeal therefrom within thirty (30) days after the date of the entry of the judgment." Pa. Rule of Civil Procedure 1309 governing appeals from awards of boards of arbitration provides that "An appeal by any party shall be deemed an appeal by all parties as to all issues unless otherwise stipulated in writing by the parties." No similar rule exists regarding appeals from judgments entered before a District Justice. Although this case involves two Rules of Procedure, respondent still concludes, citing Seliga v. State Employees' Retirement System, 682 A.2d 77 (Pa. Commw. 1996), that "[VV]here a section of a statute contains a given provision, the omission of that provision from a similar section is significant to show a different intention existed." In Maybee v. McKnight, 264 Pa. Super. 16 (1979), the district justice entered -3- 99-3033 CIVIL TERM judgment in favor of plaintiff and against defendant Coryea and in favor of defendant McKnight and against plaintiff. Coryea appealed. Plaintiff did not. Pursuant to Coryea's appeal, plaintiff filed a complaint naming Coryea and McKnight as defendants. Subsequently, plaintiff also obtained a court order permitting McKnight to be joined as a defendant. McKnight filed a preliminary objection to plaintiff's complaint contending that plaintiff's failure to appeal from the judgment entered in his favor deprived the court of jurisdiction over the case as it related to this defendant. The Superior Court concluded: While we do not believe that an appeal to the Common Pleas Court by one defendant automatically reopens the issue of another's liability, see, e.g., Delmarmol v. Fidelity and Deposit Co. of Maryland, 225 Pa. Super. 90,310 A.2d 363 (1973) (appeal of one defendant from arbitration award does not reopen issue of another defendant's liability); Fante v. Philadelphia Transportation Co., 222 Pa. Super. 276, 294 A.2d 776 (1972), we do believe that Rule 1007B allows any party to join another in an appeal already instituted by another without filing a separate appeal. We also believe that, with respect to the common pleas court's jurisdiction over the jointed defendant, this application of Rule 1007B does not contravene 42 Pa.C.S. § 3005(b). (emphasis in original) Judge Wieand, concurring, stated: I concur fully in the majority's decision to affirm the order causing appellant to be joined as a party to the action pending in the trial court. Therefore, I find it unnecessary to determine whether, in the absence of such an order, one defendant's appeal from a magistrate's decision would carry with it the issue of another defendant's liability. (Emphasis added.) In Burrell Industries, Inc. v. Phillips, 8 D. & C. 4th 665 (1990), the Court of Common Pleas of Allegheny County held that Rule 1309 governing appeals from 99-3033 CIVIL TERM awards of boards of arbitration should be applied to appeals from judgments entered by District Justices. However, in Glen Rock Borough v. Miller, 720 A.2d 800 (Pa. Commw. 1998), the facts were that Esther and William Miller owned property in Glen Rock Borough in which James E. Holmes was a tenant. The Borough filed a civil complaint before a District Justice charging Holmes and the Millers with the illegal use of the property as an outdoor repair shop and short term parking lot in violation of the Borough zoning ordinance. The District Justice entered judgment against Esther and William Miller and James E. Holmes individually in the amount of $100 per day plus costs. William Miller filed an appeal and a Rule against the Borough to file a complaint. The Borough filed a complaint against William Miller and entered judgment against Esther Miller and James E. Holmes. The court of common pleas heard the appeal and entered a judgment against William Miller. The Borough executed its judgment against Esther Miller but she claimed in a petition to strike or open the judgment that its entry against her was improper because her husband's appeal from the District Justice's entry of the judgment also applied to her. The Commonwealth Court stated: Since there is no procedural rule promulgated by the Pennsylvania Supreme Court to support the Allegheny County common pleas court holding in Burrell, we cannot embrace Esther Miller's assertion that, by operation of law, an appeal by one party from a district justice judgment encompasses all parties as to all issues. Nonetheless, from the limited facts on ownership of the subject property that were presented to us, we believe that Esther should have been joined in her husband's appeal. Pa. R.C.P. No. 2227(a), regarding compulsory joinder, provides: 'Persons having only a joint interest in the subject matter of an action must be joined on the same side as plaintiffs or defendants.' -5- 99-3033 CIVIL TERM While the record is unclear as to how the Millers held their property (e.g, tenancy by the entireties, tenancy in common), there appears to be no dispute that they owned it together. Although it obtained judgments against them on the same date and the zoning violations on jointly held property were the same, the borough's actions in proceeding against the Millers were confusing and clearly contributed to Esther's belief that her husband's appeal from the district justice judgment also must have included her. In reaching this conclusion, we note that it is the single property that was subject to violations, not the separate conduct of individuals. (Emphasis added.) (Footnote omitted.) Despite the fact that there is no question that the Millers received adequate and separate notice of the judgments against them, due process considerations are also present here. By failing to include Esther in the suit brought against William in common pleas court, the borough, albeit unwittingly, may have denied her an opportunity to be heard in her capacity as owner of the property. This is particularly true if Esther and William owned their property as tenants by the entireties, since Esther reasonably relied on her status as VVilliam's wife to think that his appeal from the district justice judgment necessarily included her. (Footnote omitted.) Here, the record falls short in at least one curious evidentiary respect--that is, how do Esther and William hold the property that was violative of the zoning ordinance. Because the petition to strike off or, in the alternative, open judgment offers sufficient reason for Esther's delay in filing it (her reasonable belief that her husband's appeal necessarily included her), we vacate the common pleas court's order denying that petition. We also remand the case to that court for a hearing in which additional evidence with respect to how the Millers held their property shall be taken. If, based on this additional evidence, the common pleas court determines that the Millers did in fact hold the property jointly, then Esther should have been joined as an indispensable party in William's appeal, and the judgment entered against her on December 12, 1995 is void. (Emphasis added.) (Footnote omitted.) The claim of Beckley and Madden in its suit before the District Justice, and in the -6- 99-3033 CIVIL TERM complaint it filed in the Court of Common Pleas of Dauphin County, is for attorney fees of $3,957.45 incurred jointly by Richard Keller and Lydia Keller. The Kellers either owe plaintiff $3,957.45, or something less or nothing at all. The liability for the total amount of the single debt is joint although the collection of such a debt can be made against either defendant. As such, Lydia Keller is an indispensable party under the reasoning in Glen Rock Borough v. Miller, supra. She has already been made a party in plaintiff's complaint that has been filed against her and her husband in the appeal captioned against both defendants in Dauphin County. The judgment entered against her by the District Justice is not final. While petitioner seeks to strike this judgment we cannot do so because a judgment can only be stricken if a fatal defect appears on the face of the record at the time it is filed. Cintas Corporation v. Lee's Cleaning Services, Inc., 700 A.2d 915 (Pa. 1997). The fa~:t that this judgment is subject to the appeal in Dauphin County does not appear on the face of this record as of the time it was transferred and filed in Cumberland County. We will open the judgment because the petition was promptly filed fourteen days after the judgment was entered, and petitioner has a meritorious defense. Cintas Corporation v. Lee's Cleaning Services, Inc., supra. ORDER OF COURT AND NOW, this '"~O day of August, 1999, the judgment entered by Beckley and Madden against Lydia Keller at 99-3033 Civil Term, IS OPENED. -7- 99-3033 CIVIL TERM Thomas S. Beckley, Esquire. For Plaintiff VVilliam J. Fulton, Esquire For Defendant :saa Edgar B. Bayley, J.~,~ -8-