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HomeMy WebLinkAbout79-1384 CivilWM. B. TENNY, Builder and IN THE COURT OF COMMON PLEAS OF Developer, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW TOWNSHIP OF HAMPDEN, NO. 1384 CIVIL 1979 Cumberland County, Pennsylvania, Defendant IN EMINENT DOMAIN WILLIAM B. TENNY and IN THE COURT OF COMMON PLEAS OF SHIRLEY A. TENNY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA and WM. B. TENNY, Builder and Developer, Plaintiffs CIVIL ACTION - LAW NO. 3188 CIVIL 1984 V. IN RE: TAKING OF REAL AND PERSONAL PROPERTY IN THE TOWNSHIP OF HAMPDEN, CUMBERLAND COUNTY, PENNSYLVANIA, IN TOWNSHIP OF HAMPDEN, CONJUNCTION WITH THE EXTENSION Cumberland County, OF THE SANITARY SEWER SYSTEM Pennsylvania and REPORTEDLY INSTALLED AND OWNED HAMPDEN TOWNSHIP SEWER BY HAMPDEN TOWNSHIP SEWER AUTHORITY AUTHORITY, Defendants ACTION IN EMINENT DOMAIN IN RE: MOTION TO SUPPLY RECORD BEFORE OLER. J. ORDER OF COURT AND NOW, this day of May, 1993, upon careful consideration of the record and briefs of counsel, the matter having been submitted to the Court for disposition on briefs, it is ORDERED as follows: Plaintiffs' Motion for Order of Court Certifying Tenny's Legal Papers Lodged in the Office of the Prothonotary for Cumberland County, Pennsylvania, As Constituting the Original Record of C.C.Ct. Case No. 1384 Civil, 1979, in Emi- Domain, Reportedly Either Lost or Destroyed, is: (1) GRANTED with respect to the following documents: (a) Petition for Appointment of Board of View — March 27, 1979; (b) Order of Court — March 28, 1979; (c) Petition for Jury Trial — April 11, 1979, and Affidavit of Service —April 11, 1979; (d) Preliminary Objections to Petition For Appointment of Board of View — May 1, 1979; (e) Defendant's Answer To Rule and Petition For Appointment of Board of View — May 1, 1979; and W Preliminary Objections to Preliminary Objections To Petition For Appointment of Board of View — May 23, 1979; .1. (2) DENIED with respect to the following documents: (a) 1979 Docket for No. 1384 CIVIL, 1979, showing entries up to and including 5/23/79; (b) Letters to Judge Sheely dated: 10/26/83, 11/1/84, 12/23/85, 11/3/86, and 11/9/87.* BY THE COURT, i iia J/ esley Oler, J William B. Tenny, Pro Se Plaintiff 2204 Market Street P.O. Box 637 Camp Hill, PA 17001-0637 Keith D. Brenneman, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, pA 17055 Attorney for Hampden Township J. Jay Cooper, Esq. 320E Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Hampden Township Sewer Authority :rc * The Court's disposition in this matter does not affect any remedy the Defendants may possess with respect to the substantial period of time in which no action was taken in this case. See, e.g., Penn Piping, Inc. v. INA, 529 Pa. 350, 603 A.2d 1006 (1992). WM. B. TENNY, Builder and IN THE COURT OF COMMON PLEAS OF Developer, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff V. CIVIL ACTION - LAW TOWNSHIP OF HAMPDEN, NO. 1384 CIVIL 1979 Cumberland County, Pennsylvania, Defendant IN EMINENT DOMAIN WILLIAM B. TENNY and IN THE COURT OF COMMON PLEAS OF SHIRLEY A. TENNY, his wife, CUMBERLAND COUNTY, PENNSYLVANIA and WM. B. TENNY, Builder and Developer, Plaintiffs IN RE: MOTION TO SUPPLY RECORD BEFORE OLER. J. OPINION AND ORDER OF COURT Oler, J. The issue presented in the instant matter is whether the Plaintiffs should be permitted to supply copies of certain papers and other documents for certification by the Court to replace the original record of a case docketed in the Cumberland County Prothonotary's Office at 1384 Civil 1979; the original record was either lost or destroyed. A brief summary of the relevant facts is as follows: CIVIL ACTION - LAW NO. 3188 CIVIL 1984 V. IN RE: TAKING OF REAL AND PERSONAL PROPERTY IN THE TOWNSHIP OF HAMPDEN, CUMBERLAND COUNTY, PENNSYLVANIA, IN CONJUNCTION WITH THE EXTENSION TOWNSHIP OF HAMPDEN, OF THE SANITARY SEWER SYSTEM Cumberland County, REPORTEDLY INSTALLED AND OWNED Pennsylvania and BY HAMPDEN TOWNSHIP SEWER HAMPDEN TOWNSHIP SEWER AUTHORITY AUTHORITY, Defendants ACTION IN EMINENT DOMAIN IN RE: MOTION TO SUPPLY RECORD BEFORE OLER. J. OPINION AND ORDER OF COURT Oler, J. The issue presented in the instant matter is whether the Plaintiffs should be permitted to supply copies of certain papers and other documents for certification by the Court to replace the original record of a case docketed in the Cumberland County Prothonotary's Office at 1384 Civil 1979; the original record was either lost or destroyed. A brief summary of the relevant facts is as follows: No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 On November 20, 1992, William B. Tenny, "Builder and Developer" (Plaintiffs), filed a motion seeking certification of certain papers and documents to replace the original record in an eminent domain action initiated by him against the Township of Hampden (Township).' Plaintiffs seek certification of the following papers or documents: (1) 1979 Docket for No. 1384 CIVIL, 1979, showing entries up to and including 5/23/79; (2) Letters to Judge Sheely dated: 10/26/83, 11/1/84, 12/23/85, 11/3/86, and 11/9/87; (3) Petition For Appointment Of Board Of View — March 27, 1979; (4) Order of Court — March 28, 1979; (5) (a) Petition For Jury Trial — April 11, 1979, and (b) Affidavit Of Service — April 11, 1979; (6) Preliminary Objections To Petition For Appoingment [sic] of Board of View — May 1, 1979; (7) Defendant's Answer To Rule And Petition For Appointment of Board of View — May 1, 1979; and (8) Preliminary Objections To Preliminary Objections To Petition For Appointment of Board of View — May 23, 1979.2 (Replacement Record) In response to Plaintiffs' Motion this Court issued a Rule on ' Cumberland County docket, 1384 Civil 1979. The original action was initiated in March of 1979. It is undisputed that the original record has either been lost or destroyed. Plaintiffs' "Motion For Order Of Court Certifying Tenny's Legal Papers Lodged In The Office Of The Prothonotary For Cumberland County, Pennsylvania, As Constituting The Original Record of C.C.Ct. Case No. 1384 Civil, 1979, In Eminent Domain, Reportedly Either Lost Or Destroyed." No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 the Township and Hampden Township Sewer Authority (Authority)' to show cause why Plaintiffs' Motion should not be granted.4 On December 14, 1992, the Authority and the Township filed Answers with New Matter.' In their Answers, the Authority and the Township state: It is denied that the documents listed in Paragraph 7 of the Plaintiffs' Motion comprise the complete original record of the case docketed in this Court to No. 1384 Civil 1979. It is further denied that any letters sent or delivered by Plaintiffs to Judge Harold [E.] Sheely are part of the original record of the aforementioned action for the reason that such letters were never submitted into the record, have never been noted on the docket as having been filed and do not, in the first instance, have the proper form or substance to be included as part of the record....' Plaintiffs subsequently filed a Reply to the New Matter raised by the Authority and s It should be noted that the Hampden Township Sewer Authority is not a party to the case docketed at 1384 Civil 1979; however, the Authority may have an interest in the matter or content of the record docketed at that term by virtue of the fact that it is a party in an action docketed at 3188 Civil 1984, which Plaintiffs have sought to consolidate with the earlier action. a Cumberland County Docket, 1384 Civil 1979. 5 Id. b Answer Of Hampden Township Sewer Authority To Plaintiffs' Motion For Order of Court Certifying Legal Papers Lodged In The Office Of The Prothonotary As Constituting The Original Record Of Case at No. 1384 Civil 1979 In Eminent Domain (hereinafter Authority's Answer), paragraph 7. Defendant Township of Hampden's Answer To Motion For Order Of Court Certifying Tenny's Legal Papers Lodged In The Office Of The Prothonotary For Cumberland County, Pennsylvania, As Constituting The Original Record of C.C.Ct. Case No. 1384 Civil, 1979, In Eminent Domain, Reportedly Either Lost or Destroyed (hereinafter Township's Answer), paragraph 7. 3 No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 a pleading entitled, in part, "Replication to Purported `New Matter"' in response to the Township's Answer with New Matter.' On February 4, 1993, Plaintiffs filed several praecipes listing the instant matter for Argument Court, which was scheduled for February 24, 1993.8 Plaintiffs did not schedule or take depositions regarding factual disputes as to the contents of the Replacement Record prior to listing the matter for argument. Plaintiffs subsequently filed a motion, on February 11, 1993, requesting that the matter be submitted to the Court for disposition on briefs.' After having been advised by opposing counsel that they did not object to Plaintiffs' motion in this regard, the Court issued an Order striking the matter from the February 24, 1993, argument court list and setting a briefing schedule. 10 On March 12, 1993, Plaintiffs filed a motion requesting: (1) that the Court identify any and all waivable issues; (2) that the Court grant an extension of time for the filing of briefs; and (3) that the Court schedule a pre -briefing conference to identify issues to be briefed. Upon being advised by opposing counsel that they did not object to Plaintiffs' motion, the Court withdrew the briefing schedule set forth in its Order ' Cumberland County Docket, 1384 Civil 1979. 8 Id. 9 Id. io Id. 4 No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 dated February 18, 1993 and scheduled a pre -briefing conference for April 1, 1993.11 Following the pre -briefing conference, the Court issued an Order on April 5, 1993, establishing a briefing schedule and limiting the issue to be addressed in the briefs to the question of whether Plaintiffs should be permitted to supply the Replacement Record to the Court for certification to replace the original record.' This limitation was without prejudice to the parties as to any eventual consideration of other issues involved in the case. 13 Pursuant to the Order of Court of April 5, 1993, briefs were submitted to the Court by Plaintiffs and the Township; 14 the Authority elected not to file a brief in this matter.15 Statement of Law. With respect to the responsibility of a Court where a record is lost, it has been stated that "it is the duty of the Court, upon proper proof of the loss and contents of lost papers, to make an order supplying them." In Re. Road in Adams Township, 130 Pa. 190, 192, 18 A. 600, 601(1889). "A person seeking the substitution of lost or destroyed records has the burden of proving the facts necessary to entitle him to the relief sought." 76 C.J.S. Records §49, at 154 (1952) citing Puckett v. Morris, 15 See note 3 supra. h1 No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 181 Ky. 374, 706 S.W. 157 (1918). It is within the inherent powers of a court to correct its records. Davis v. Commonwealth Trust Company, 335 Pa. 387, 390-91, 7 A.2d 3, 5 (1939). It should also be noted that "[t]he docket is the book which contains brief entries or descriptions regarding each paper that is filed or action that is taken in a case." Hepler v. Urban, _ Pa. _, _, 609 A.2d 152, 154 (1992). Under Pennsylvania Rule of Civil Procedure 209, it is provided as follows: "[A]fter the filing and service of the answer, the moving party [must] within fifteen days ... [p]roceed by rule or by agreement of counsel to take depositions on disputed issues of fact...." Where a petitioner lists a matter including factual disputes for argument without taking depositions, he or she admits all averments in the answer responsive to the petition. Id. "Rule 209 contemplates that when a respondent in an answer effectively denies material allegations in a petition, a petitioner will either take depositions on disputed factual issues or order the cause for argument on the petition and answer, thereby conceding the existence of all facts properly pleaded in the answer." 1 Goodrich Amram §209:11, at 153-54 (1991). Amlication of law to facts. Plaintiffs have provided as an attachment to their "Motion for Order of Court Certifying Tenny's Legal Papers Lodged in the Office of the Prothonotary for Cumberland County, Pennsylvania, As Constituting the Original Record of C.C.Ct. Case No. 1384 Civil, 1979, in Eminent Domain, Reportedly Either Lost or Destroyed" certain copies certified by Deputy Prothonotary Shirley Peiper on C No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 October 10, 1992, as true copies from the original record. The certified copies include the following: (1) Petition For Appointment of Board of View — March 27, 1979; (2) Order of Court — March 28, 1979; (3) (a) Petition For Jury Trial — April 11, 1979, and (b) Affidavit Of Service — April 11, 1979; (4) Preliminary Objections To Petition For Appointment of Board Of View — May 1, 1979; (5) Defendant's Answer To Rule and Petition For Appointment of Board of View — May 1, 1979; and (6) Preliminary Objections To Preliminary Objections To Petition For Appointment of Board of View — May 23, 1979. The Court is satisfied that Plaintiffs have met their burden with respect to the above- cited documents. Plaintiffs have not, however, satisfied their burden with respect to the following documents: (1) 1979 Docket for No. 1384 CIVIL 1979, showing entries up to and including 5/23/79; and (2) Letters to Judge Sheely dated: 10/26/83, 11/1/84, 12/23/85, 11/3/86, and 11/9/87. The Township and the Authority have denied that these documents constituted a portion of the original record.18 Therefore, neither the Letters addressed to Judge Sheely dated 10/26/83, 11/1/84, 12/23/85, 11/3/86, and 11/9/87 or the docket sheet, which is not part of the record, but rather is an index of the papers filed or action taken in the case, can be accepted or certified by the Court as replacements for the is See note 6 supra. 7 No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 original record. Accordingly, in light of the foregoing authority, the following order will be entered: ORDER OF COURT AND NOW, this 4Uday of May, 1993, upon careful consideration of the record and briefs of counsel, the matter having been submitted to the Court for disposition on briefs, it is ORDERED as follows: Plaintiffs' Motion for Order of Court Certifying Tenny's Legal Papers Lodged in the Office of the Prothonotary for Cumberland County, Pennsylvania, As Constituting the Original Record of C.C.Ct. Case No. 1384 Civil, 1979, in Eminent Domain, Reportedly Either Lost or Destroyed, is: (1) GRANTED with respect to the following documents: (a) Petition for Appointment of Board of View — March 27, 1979; (b) Order of Court — March 28, 1979; (c) Petition for Jury Trial — April 11, 1979, and Affidavit of Service — April 11, 1979; (d) Preliminary Objections to Petition For Appointment of Board of View — May 1, 1979; (e) Defendant's Answer To Rule and Petition For Appointment of Board of View — May 1, 1979; and (f) Preliminary Objections to Preliminary Objections To Petition For Appointment of Board of View — May 23, 1979; WereI (2) DENIED with respect to the following documents: E:: No. 1384 CIVIL 1979 No. 3188 CIVIL 1984 (a) 1979 Docket for No. 1384 CIVIL 1979, showing entries up to and including 5/23/79; (b) Letters to Judge Sheely dated: 10/26/83, 11/1/84, 12/23/85, 11/3/86, and 11/9/87.* BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr. J. William B. Tenny, Pro Se Plaintiff 2204 Market Street P.O. Box 637 Camp Hill, PA 17001-0637 Keith D. Brenneman, Esq. 44 West Main Street P.O. Box 318 Mechanicsburg, PA 17055 Attorney for Hampden Township J. Jay Cooper, Esq. 320E Market Street P.O. Box 1268 Harrisburg, PA 17108-1268 Attorney for Hampden Township Sewer Authority :rc * The Court's disposition in this matter does not affect any remedy the Defendants may possess with respect to the substantial period of time in which no action was taken in this case. See e.g. Penn Piping, Inc. u. INA, 529 Pa. 350, 603 A.2d 1006 (1992).