J-A02032-21
NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P. 65.37
JOHN KELLEY AND TRICIA KELLEY IN THE SUPERIOR COURT OF PENNSYLVANIA
V.
TODD HARR
Appellant No. 720 WDA 2020
Appeal from the Judgment Entered February 4, 2019 In the Court of Common Pleas of Bedford County Civil Division at No(s): 1008-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, 1.
MEMORANDUM BY MCLAUGHLIN, J.: FILED: MAY 4, 2021
Todd Harr appeals from the order denying his motion to reinstate an
appeal from amagisterial district court decision entered in favor of John Kelley
and Tricia Kelley ("the Kelleys") and against Harr. Harr argues the trial court
erred because there was good cause for his failure to file a proof of service of
the notice of appeal and the Kelleys did not suffer prejudice. We affirm.
The Kelleys initiated a civil action against Harr before a magisterial
district judge ("MDJ"), claiming they paid Harr for automobile work that he
failed to perform. The MDJ entered judgment in favor of the Kelleys and
against Harr, on August 28, 2018, in the amount of $9,500. Harr filed a pro
se appeal to the Court of Common Pleas of Bedford County, but did not file a
proof of service of the notice of appeal. In October 2018, the Kelleys filed a
praecipe to strike the appeal from the MDJ judgment, and the court struck the
appeal. J-A02032-21
Harr obtained counsel, who in December 2018 filed amotion to reinstate
the appeal. After a hearing, the court denied the motion, finding that "nothing
in the record nor the averments indicate that [Harr] actually served [the
Kelleys] with notice of the appeal regardless of whether a proof of service was
filed pursuant to Pa.R.C.P.M.D.J. 1005(B)." Order, filed Feb. 4, 2019. Harr
appealed to this Court.'
Harr raises the following issue:
I. Whether the trial court erred or abused its discretion in denying [Harr's] Motion to Reinstate an appeal from a magisterial district justice's decision, when it struck for failure of [Harr] to file proof of service of the notice of appeal with the prothonotary within the prescribed period, but [Harr] has demonstrated good cause to reinstate the appeal and [the Kelleys] have not shown prejudice as [the Kelleys] have received notice of the appeal?
Harr's Br. at 5.
Harr argues the Court of Common Pleas improperly denied his petition
to reinstate his appeal from the MDJ judgment. He claims he filed a timely
notice of appeal to the Court of Common Pleas and paid the fees, and "just
fifteen days later," on October 10, 2018, the Kelleys filed a praecipe to strike
'We quashed Harr's initial appeal to this Court as untimely, without prejudice for him to seek an appeal nunc pro tunc. Harr filed a motion in the Court of Common Pleas for such relief, but in July 2019, the trial court denied it. Harr appealed to this Court, and we reversed, finding that there had been a breakdown in the trial court's operations when Harr had first attempted to appeal from the February 2019 order. Harr then filed a notice of appeal, docketed at 564 WDA 2020. We issued a rule to show cause, noting that further trial court action was required, and Harr discontinued that appeal. In July 2020, the trial court entered an order granting Harr leave to file a notice of appeal within 20 days, and Harr filed the instant appeal on July 17, 2020.
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the appeal, citing his failure to file proof of service. Harr's Br. at 22. Harr
argues that "[t]here is no question that" the Kelley's received "at the least,
constructive notice that the appeal had been taken," without any delay in the
proceedings, and points out that they filed the praecipe to strike the appeal.
Id. at 21-22. Harr distinguishes Slaughter v. Allied Heating, 636 A.2d
1121, 1125 (Pa.Super. 1993), claiming that unlike the defendant in
Slaughter, who waited two months to serve the notice of appeal, the Kelleys
filed the praecipe 15 days after the appeal. Harr concludes that he
demonstrated good cause, as he was initially unrepresented and as soon as
he received notice that the appeal had been stricken, he retained counsel. He
further claims the Kelleys failed to show prejudice, and that he will suffer
prejudice if the appeal is not allowed, as he will be subject to an unfair
judgment.
This court reviews atrial court's decision regarding whether to reinstate
the appeal from a MDJ judgment for an abuse of discretion. See Slaughter ,
636 A.2d at 1123.
Pennsylvania Rule of Civil Procedure for Magistrate District Judges 1005
requires that the party appealing from an MDJ judgment both to serve the
notice of appeal on the appellee and MDJ, and to file proofs of such service:
A. The appellant shall by personal service or by certified or registered mail serve a copy of the notice of appeal upon the appellee and upon the magisterial district judge in whose office the judgment was rendered.... If the appellee has an attorney of record named in the complaint form filed in the office of the magisterial district judge, the service
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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 the notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such arule by Rule 100413, within 10 days after filing the notice of appeal.
Pa.R.C.P.M.J.D. 1005A, B.
MDJ Rule 1006 provides a mechanism for the appellee to have the
prothonotary strike an MD] appeal upon praecipe, for failure to file a proof of
service: "Upon failure of the appellant to comply with Rule 1004A or Rule
10056, the prothonotary shall, upon praecipe of the appellee, mark the appeal
stricken from the record." Pa.R.C.P.M.J.D. 1006. However, Rule 1006 also
allows the Court of Common Pleas to reinstate the appeal "upon good cause
shown." Id. In this usage, "good cause" "require[s] an appealing party to
proffer some legally sufficient reason for reinstating the appeal." Slaughter ,
636 A.2d at 1123 (citing Anderson v. Centennial Homes, Inc., 594 A.2d
737, 739 (Pa.Super. 1991)).
In Slaughter, the appellant did not file the proof of service required
under the rules and did not serve the appellees with notice of the appeal. 636
A.2d at 1122. The appellant later obtained counsel, who filed the proof of
service and served the appellee and district justice with notice of the appeal.
The Court noted that prior court decisions found good cause to reinstate an
appeal where the Rule's technical requirements were not satisfied. Id. at
1123. It found, however, that "[n]early all of the cases ... indicate that the
appealing party timely served the notice of appeal upon both the opposing
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party and the district justice and had merely failed to timely file their proofs
of service or their complaint." Id. at 1124. The Court noted that "[w]here the
notice of appeal is timely filed and served upon the non-appealing party and
the district justice, the intent underlying the rule has been fulfilled and no
further purpose remains to be served by penalizing the appealing party for
failing to timely file the proofs of service." Id. It noted that "the mere failure
to file the proofs of service in a timely manner will be disregarded where it is
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J-A02032-21
NON-PRECEDENTIAL DECISION -SEE SUPERIOR COURT I.O.P. 65.37
JOHN KELLEY AND TRICIA KELLEY IN THE SUPERIOR COURT OF PENNSYLVANIA
V.
TODD HARR
Appellant No. 720 WDA 2020
Appeal from the Judgment Entered February 4, 2019 In the Court of Common Pleas of Bedford County Civil Division at No(s): 1008-2018
BEFORE: BOWES, J., NICHOLS, J., and McLAUGHLIN, 1.
MEMORANDUM BY MCLAUGHLIN, J.: FILED: MAY 4, 2021
Todd Harr appeals from the order denying his motion to reinstate an
appeal from amagisterial district court decision entered in favor of John Kelley
and Tricia Kelley ("the Kelleys") and against Harr. Harr argues the trial court
erred because there was good cause for his failure to file a proof of service of
the notice of appeal and the Kelleys did not suffer prejudice. We affirm.
The Kelleys initiated a civil action against Harr before a magisterial
district judge ("MDJ"), claiming they paid Harr for automobile work that he
failed to perform. The MDJ entered judgment in favor of the Kelleys and
against Harr, on August 28, 2018, in the amount of $9,500. Harr filed a pro
se appeal to the Court of Common Pleas of Bedford County, but did not file a
proof of service of the notice of appeal. In October 2018, the Kelleys filed a
praecipe to strike the appeal from the MDJ judgment, and the court struck the
appeal. J-A02032-21
Harr obtained counsel, who in December 2018 filed amotion to reinstate
the appeal. After a hearing, the court denied the motion, finding that "nothing
in the record nor the averments indicate that [Harr] actually served [the
Kelleys] with notice of the appeal regardless of whether a proof of service was
filed pursuant to Pa.R.C.P.M.D.J. 1005(B)." Order, filed Feb. 4, 2019. Harr
appealed to this Court.'
Harr raises the following issue:
I. Whether the trial court erred or abused its discretion in denying [Harr's] Motion to Reinstate an appeal from a magisterial district justice's decision, when it struck for failure of [Harr] to file proof of service of the notice of appeal with the prothonotary within the prescribed period, but [Harr] has demonstrated good cause to reinstate the appeal and [the Kelleys] have not shown prejudice as [the Kelleys] have received notice of the appeal?
Harr's Br. at 5.
Harr argues the Court of Common Pleas improperly denied his petition
to reinstate his appeal from the MDJ judgment. He claims he filed a timely
notice of appeal to the Court of Common Pleas and paid the fees, and "just
fifteen days later," on October 10, 2018, the Kelleys filed a praecipe to strike
'We quashed Harr's initial appeal to this Court as untimely, without prejudice for him to seek an appeal nunc pro tunc. Harr filed a motion in the Court of Common Pleas for such relief, but in July 2019, the trial court denied it. Harr appealed to this Court, and we reversed, finding that there had been a breakdown in the trial court's operations when Harr had first attempted to appeal from the February 2019 order. Harr then filed a notice of appeal, docketed at 564 WDA 2020. We issued a rule to show cause, noting that further trial court action was required, and Harr discontinued that appeal. In July 2020, the trial court entered an order granting Harr leave to file a notice of appeal within 20 days, and Harr filed the instant appeal on July 17, 2020.
-2- J-A02032-21
the appeal, citing his failure to file proof of service. Harr's Br. at 22. Harr
argues that "[t]here is no question that" the Kelley's received "at the least,
constructive notice that the appeal had been taken," without any delay in the
proceedings, and points out that they filed the praecipe to strike the appeal.
Id. at 21-22. Harr distinguishes Slaughter v. Allied Heating, 636 A.2d
1121, 1125 (Pa.Super. 1993), claiming that unlike the defendant in
Slaughter, who waited two months to serve the notice of appeal, the Kelleys
filed the praecipe 15 days after the appeal. Harr concludes that he
demonstrated good cause, as he was initially unrepresented and as soon as
he received notice that the appeal had been stricken, he retained counsel. He
further claims the Kelleys failed to show prejudice, and that he will suffer
prejudice if the appeal is not allowed, as he will be subject to an unfair
judgment.
This court reviews atrial court's decision regarding whether to reinstate
the appeal from a MDJ judgment for an abuse of discretion. See Slaughter ,
636 A.2d at 1123.
Pennsylvania Rule of Civil Procedure for Magistrate District Judges 1005
requires that the party appealing from an MDJ judgment both to serve the
notice of appeal on the appellee and MDJ, and to file proofs of such service:
A. The appellant shall by personal service or by certified or registered mail serve a copy of the notice of appeal upon the appellee and upon the magisterial district judge in whose office the judgment was rendered.... If the appellee has an attorney of record named in the complaint form filed in the office of the magisterial district judge, the service
-3 J-AO2032-21
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 the notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such arule by Rule 100413, within 10 days after filing the notice of appeal.
Pa.R.C.P.M.J.D. 1005A, B.
MDJ Rule 1006 provides a mechanism for the appellee to have the
prothonotary strike an MD] appeal upon praecipe, for failure to file a proof of
service: "Upon failure of the appellant to comply with Rule 1004A or Rule
10056, the prothonotary shall, upon praecipe of the appellee, mark the appeal
stricken from the record." Pa.R.C.P.M.J.D. 1006. However, Rule 1006 also
allows the Court of Common Pleas to reinstate the appeal "upon good cause
shown." Id. In this usage, "good cause" "require[s] an appealing party to
proffer some legally sufficient reason for reinstating the appeal." Slaughter ,
636 A.2d at 1123 (citing Anderson v. Centennial Homes, Inc., 594 A.2d
737, 739 (Pa.Super. 1991)).
In Slaughter, the appellant did not file the proof of service required
under the rules and did not serve the appellees with notice of the appeal. 636
A.2d at 1122. The appellant later obtained counsel, who filed the proof of
service and served the appellee and district justice with notice of the appeal.
The Court noted that prior court decisions found good cause to reinstate an
appeal where the Rule's technical requirements were not satisfied. Id. at
1123. It found, however, that "[n]early all of the cases ... indicate that the
appealing party timely served the notice of appeal upon both the opposing
-4- J-A02032-21
party and the district justice and had merely failed to timely file their proofs
of service or their complaint." Id. at 1124. The Court noted that "[w]here the
notice of appeal is timely filed and served upon the non-appealing party and
the district justice, the intent underlying the rule has been fulfilled and no
further purpose remains to be served by penalizing the appealing party for
failing to timely file the proofs of service." Id. It noted that "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 has been satisfied." Id.
However, the Slaughter Court distinguished the facts there from those
in cases where the Court excused the failure to file proofs of service. The Court
stated that the record there was "devoid of any evidence, aside from
appellant's own unsupported allegations that appellee and the district justice
were actually served with the notice of appeal" before the late notice served
on them. Id. The Court added that the appellant's claim that the failure to
comply with the rule was "inadvertent error" did not satisfy the good cause
requirement, and that the appellant's pro se status, without more, also did
not constitute good cause. Id. at 1125.
The Court further addressed the appellant's argument that the court
should disregard the non-compliance because the appellee did not suffer
prejudice. Id. It reasoned that "simply stating that the ...noncompliance
did not substantially affect the rights of the [adverse party] is not alone
sufficient to demonstrate good cause to reinstate the appeal." Id. {quoting
-5- J-A02032-21
Anderson v. Centennial Homes, Inc., 594 A.2d at 740) (alteration in
original)).
Here, the trial court denied the motion to reinstate the appeal of the
MDJ judgment, finding that "nothing in the record nor the averments indicate
that [Harr] actually served [the Kelleys] with notice of the appeal regardless
whether a proof of service was filed." Order, filed Feb. 4, 2019. It also found
Harr had failed to comply with the proof-of-service requirements contained in
Rule 1005(B). Trial Court Opinion, filed Sept. 18, 2020. It noted that Harr
argued the appeal should be re-instated because he was unrepresented at the
time of the appeal and unaware of Rule 1005(B), and that the Kelleys will not
be prejudiced by reinstatement. The trial court found the case analogous to
Slaughter, and concluded Harr failed to establish good cause.
We conclude the trial court did not abuse its discretion in denying the
motion to reinstate the appeal. The court did not err in finding itself bound by
Slaughter. The record contains no evidence that Harr served the Kelleys or
the MDJ with the notice of the appeal. He also filed no proof of service. Harr's
pro se status and his assertion the Kelleys did not suffer prejudice, without
more, do not establish good cause, pursuant to Slaughter.
Order affirmed.
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Judgment Entered.
lbYseph D. Seletyn, E Prothonotary
Date: 5/4/2021
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