Efco Products v. Dunkin Donuts

20 Pa. D. & C.3d 136, 1980 Pa. Dist. & Cnty. Dec. LEXIS 66
CourtPennsylvania Court of Common Pleas, Somerset County
DecidedNovember 10, 1980
Docketno. 13 of 1980
StatusPublished

This text of 20 Pa. D. & C.3d 136 (Efco Products v. Dunkin Donuts) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Somerset County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Efco Products v. Dunkin Donuts, 20 Pa. D. & C.3d 136, 1980 Pa. Dist. & Cnty. Dec. LEXIS 66 (Pa. Super. Ct. 1980).

Opinion

COFFROTH, P.J.,

This assumpsit action is before the court on plaintiff’s motion to strike the judgment of non pros entered by defendant against plaintiff in this appeal from a civil judgment of the district justice of the peace, for failure of plaintiff to file a complaint after being ruled to do so within 20 days, on the following grounds:

(1) The appeal was not timely filed;

(2) Failure of defendant to file the certified mail return receipt card evidencing receipt of the appeal notice and rule, by plaintiff;

(3) Failure of defendant to serve or notify plaintiff’s counsel of the appeal and rule, and entry of judgment.

FACTS

This action was initially brought by plaintiff [137]*137against defendant before the district justice who gave judgment on the merits for plaintiff on December 13, 1979. On January 10, 1979, defendant filed an appeal to the court with a praecipe for a rule on plaintiff to file a complaint within 20 days after service of the rule “or suffer entry of judgment of non pros,” in prescribed form and in accordance with 1004B.1 The appeal and rule were mailed to plaintiff by certified mail on January 14, 1979, without serving or notifying plaintiff’s counsel who was named in the original complaint filed with the district justice. On February 13, 1980, defendant filed a praecipe for judgment of non pros, plaintiff having filed no complaint, and judgment of non pros was entered for defendant on that date; notice of the entry of that judgment was given to plaintiff but not to plaintiff’s counsel.

On or about April 1, 1980, counsel for plaintiff learned of entry of the non pros judgment, and on April 2, 1980, he filed the motion to strike which was mailed to defendant and defendant’s counsel by certified mail on the same date.

DISCUSSION

The authority for entry of judgment of non pros against a plaintiff for failure to comply with the rule to file a complaint in an appeal from a civil judgment of the district justice is impliedly authorized by Rule 1004B, quoted in note [1] supra, and is specifically authorized by Pa.R.C.R 1037(a) which provides as follows:

[138]*138“(a) If an action is not commenced by a complaint, the prothonotary, upon praecipe of the defendant, shall enter a rule upon the plaintiff to file a complaint. If a complaint is not filed within twenty (20) days after service of the rule, the prothonotary, upon praecipe of the defendant shall enter a judgment of non pros.”2

Accordingly, while the procedure for entry of the judgment of non pros in such case is begun under the rules with issuance and service upon plaintiff of the appeal notice and rule to file the complaint, it shifts to the Rules of Civil Procedure for entry of the judgment which is accomplished under Rule 1037(a), supra, and for subsequent procedures in the action.

Before dealing with the specific issues presented, we are reminded that a judgment can be stricken only for a material defect apparent on the record; if relief depends upon proof of material facts outside the record, the remedy is a petition to open and the judgment may not be stricken: Keystone Bank v. Benford, 34 Somerset 312 (1978). To justify striking or opening a judgment of non pros for failure to file a complaint: (1) the motion or petition must be promptly filed, (2) the default must be reasonably explained or excused, and (3) facts must be presented which furnish substantive grounds for the relief sought, that is, a defect on the face of the record to warrant striking, a claim or defense on the merits to warrant opening. See Walker v. Penelec, 35 Somerset 233 (1978).

Time For Appeal

This appeal was filed 27 days after entry of the [139]*139judgment. Plaintiff contends that Rule 1002 prescribes an appeal period of 20 days and that this appeal was therefore filed late. But plaintiff is incorrect in that contention; while Rule 1002 originally specified a 20 day appeal period, the rule was amended on April 25, 1979 to enlarge the period to 30 days, effective in 30 days. Compare Mayak v. Jonnet (No. 2), 39 Somerset 1 (1979), and Editor’s Note thereto. Consequently, defendant’s appeal in this case was timely filed.

Service Of Appeal and Rule On Plaintiff

Service of an appeal from a civil judgment of a district justice, and of the rule upon a plaintiff appellee to file a complaint, are governed by Rule 1005A and B which provide as follows:

“Rule 1005. Service of Notice of Appeal and Other Papers.
“A. The appellant shall by personal service or by certified or registered mail serve a copy of his notice of appeal upon the appellee and upon the justice of the peace in whose office the judgment was rendered. If required by Rule 1004B to request a rule upon the appellee to file a complaint, he shall also serve the rule by personal service or by certified or registered mail upon the appellee. The address of the appellee for the purpose of service shall be his address as listed on the complaint form filed in the office of the justice of the peace or as otherwise appearing in the records of that office. If the appellee has an attorney of record named in the complaint form filed in the office of the justice of the peace, the service upon the appellee may be made upon the attorney of record instead of upon the appellee personally.
“B. The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, [140]*140and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by Rule 1004B, within five (5) days after fifing the notice of appeal.” (Emphasis supplied.)

There is no support in the foregoing language for plaintiff’s argument that service by certified mail is incomplete without proof of receipt thereof and that the proof of service must include the certified mail return receipt; the fair implication from the rule’s language is that mailing by certified or registered mail completes service. In addition, Rule 1001(8) settles any argument about the matter by providing that: “Service ‘by certified or registered mail’ means the mailing of properly addressed certified or registered mail” (emphasis supplied), and Rule 1001(9) defines “proof of service” as “a sworn written statement that service was made by personal service or by certified or registered mail, with the sender’s receipt for certified or registered mail attached thereto if service was made by mail.” In this case the sworn written return of service is filed with the sender’s receipt attached. Obviously, proof of receipt is not essential to service.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Corcoran v. Fiorentino
419 A.2d 759 (Superior Court of Pennsylvania, 1980)
Christie v. Open Pantry Food Marts, Inc. of Delaware Valley
352 A.2d 165 (Superior Court of Pennsylvania, 1975)

Cite This Page — Counsel Stack

Bluebook (online)
20 Pa. D. & C.3d 136, 1980 Pa. Dist. & Cnty. Dec. LEXIS 66, Counsel Stack Legal Research, https://law.counselstack.com/opinion/efco-products-v-dunkin-donuts-pactcomplsomers-1980.