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HomeMy WebLinkAbout2005-3246 Civil RANDEE MCQUOWN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: MOTION TO REINSTATE APPEAL BEFORE HESS AND OLEK JJ. OPINION AND ORDER On June 21,2005, Magisterial District Judge Robert V. Manlove entered judgment in favor of defendant, Judith Krebs, and against plaintiff, Randee McQuown, with respect to plaintiffs Complaint and defendant's Counterclaim. On June 27,2005, six days after the entry of judgment, the plaintiff filed a Notice of Appeal pursuant to Rule 1002 of the Pennsylvania Rules of Civil Procedure for Magisterial Judges. Pa. RC.P. M.D. J. 1002. Plaintiffs Notice of Appeal was served on District Judge Manlove on June 29,2005, and defendant Krebs on July 5, 2005, both of whom were served by Certified Mail and signed receipts were received by plaintiff with respect to both of them. 1 On August 3, 2005, defendant Krebs filed a Praecipe to Dismiss. The basis of the the Praecipe was plaintiff s failure to attach Proof of Service of the Notice of Appeal within 10 days of filing the Notice of Appeal, in violation ofPa. RC.P.M.D.J. 1002. On August 3,2005, the prothonotary's office dismissed plaintiffs appeal. On August 8, 2005, plaintiff McQuown filed a Motion to Reinstate Appeal and filed the required Proof of Service at that time. On August 18, 2005, the court entered an Order upon defendant to show cause why plaintiff was not entitled to 1 These matters are undisputed having been pled in the Motion to Reinstate and admitted in the answer thereto. NO. 05-3246 CIVIL relief. Subsequently, defendant Krebs filed his Answer to Plaintiff s Motion to Reinstate Appeal, admitting the salient factual averments. DISCUSSION Pennsylvania Rules of Civil Procedure for Magisterial District Judges 1005(B) provides: "The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004(B), within ten (10) days after filing the notice of appeal." Pa. RC.P.M.D.J.I005(B). The essential purpose of Rule 1005, is to prevent parties from appealing from an adverse judgment of a district justice and then delaying the case by failing to timely notify the non-appealing party. Slaughter v. Allied Heating, 636 A.2d 1121, 1124 (Pa. Super. 1993). The specific purpose of Rule 1005(B) is to eliminate any dispute as to whether service was actually made. Hyde v. Crigler, 10 Pa. D.& C. 769, 773 (Allegheny Co. 1986). The requirements of Rule 1005 promote the speedy, orderly and just determination of the appeal. Slaughter, 636 A.2d at 1124. The ten-day rule is flexible and is to be liberally construed. Id. The mere failure to file the proofs of service in a timely manner will be disregarded where it is clear that the opposing party has received notice of the appeal and that the purpose of the rules of civil procedure has been satisfied. Volandv. Gray, 652 A.2d 935,936 (Pa. Super. 1995). It is clear in the case at bar that appellee had received notice of the appeal. Appellee's sole reason for seeking dismissal is not that he had not received notice of the appeal but rather that appellant had failed to attach its certificate of service. Pursuant to Pa. RC.P.M.D.J. 1006, the trial court may reinstate an appeal "upon good cause shown." Defendant relies on the Slaughter case for the proposition that inadvertent error is 2 NO. 05-3246 CIVIL insufficient to show good cause. The Slaughter case is distinguishable from the case at bar in that there was nothing in the record indicating that appellant actually served the notice of appeal on appellee and the district magistrate. Slaughter, 636 A.2d at 1123. Pennsylvania Rule of Civil Procedure 126 provides that the court may disregard any error or defect of procedure which does not affect the substantive rights of the parties. Pa.R.Civ.P. 126. Here, the appellant has produced receipts establishing that the notices of appeal were timely served. In addition, it is clear that he did not deliberately ignore the filing requirements of Rule 1005(B). The appellee has also not shown that it was harmed in any way by the appellant's error. ORDER AND NOW, this 18th day of November, 2005, the motion of the plaintiff to reinstate appeal is GRANTED. BY THE COURT, Kevin A. Hess, J. Edmund Berger, Esquire F or the Plaintiff Scott Stein, Esquire F or the Defendant :rlm 3 RANDEE MCQUOWN, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 05-3246 CIVIL JUDITH KREBS, Defendant IN RE: MOTION TO REINSTATE APPEAL BEFORE HESS AND OLEK JJ. ORDER AND NOW, this 18th day of November, 2005, the motion of the plaintiff to reinstate appeal is GRANTED. BY THE COURT, Kevin A. Hess, J. Edmund Berger, Esquire F or the Plaintiff Scott Stein, Esquire F or the Defendant :rlm