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HomeMy WebLinkAbout2005-3246 Civil RANDEE MCQUOWN Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. JUDITH KREBS Defendant NO. 2005 - 3246 CIVIL TERM IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO DEFENDANT'S COUNTERCLAIM MEMORANDUM OPINION AND ORDER The parties filed cross complaints against each other before Magisterial District Judge Robert Manlove. Judgment was entered in favor of defendant Judith Krebs in connection with plaintiff s complaint. Plaintiff filed the instant appeal from that judgment. Magisterial District Judge Manlove found in favor ofRandee McQuown in connection with the cross complaint filed by Judith Krebs. Ms. Krebs did not appeal that decision. Rather, she merely raised those issues in a counterclaim to the complaint filed by plaintiff in connection with the instant appeal. Plaintiff contends that the counterclaim must be dismissed because defendant did not appeal from Judge Manlove's decision on her cross complaint as required by Rule 1 004( c) of the Pennsylvania Rules of Civil Procedure for Magisterial District Judges. We must agree. The procedure for appealing from a Magisterial District Judge's decision on cross complaints is set forth in Pa. RC.P. M.D.J. 1004. Subdivision C provides as follows: NO. 2005 - 3246 CIVIL TERM When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within thirty (30) days after the date on which the appellant served a copy of his notice of appeal upon the appellee. Since it uses the term "may", the rule would seem to be discretionary with regard to the need for appellee to file a notice of appeal in order to pursue a counterclaim. However, the comment to the rule makes clear that the requirement is mandatory. Subdivision C permits the appellee, when there were cross- complaints in the action before the magisterial district judge and the appellant appeals from the judgment on his complaint or on both complaints, to assert his claim by way of a counterclaim in the court of common pleas if the claim is cognizable as a counterclaim in that court. However, even when this procedure is permissible, the appellee must, if he desires to use it, still give a notice of appeal under Rule 1002 with the time extension allowed by subdivision C . . . if he intends to appeal from the judgment on his complaint and the appellant has not appealed from that judgment, . . . See comment to Pa. RC.P.M.D.J. 1004 (emphasis added). In American Appliance v. E. W Real Estate 564 Pa. 473, 769 A.2d 444 (2001) the Pennsylvania Supreme Court was called upon to interpret the language of the Rule at issue. It said "Rule 1004. C only requires a separate notice of appeal if the appellee wishes to appeal from judgment on the appellee's complaint and the appellant has not appealed that judgment." (emphasis in original) 769 A.2d 447. Since that is the exact factual scenario before us, we must grant plaintiff s preliminary objections and dismiss the defendant's counterclaim. 2 NO. 2005 - 3246 CIVIL TERM ORDER OF COURT AND NOW, this 17TH day of APRIL, 2006, after having reviewed the briefs filed by the parties, and having heard argument thereon, Plaintiffs Preliminary Objections are GRANTED and Defendant's Counterclaim is DISMISSED. By the Court, Isl Edward E. Guido Edward E. Guido, J. Edmund J. Berger, Esquire 2104 Market Street Camp Hill, Pa. 17011 Elizabeth J. Saylor, Esquire 3800 Market Street Camp Hill, Pa. 17011 :sld 3