Lattimore Development Associates v. Wiss

26 Pa. D. & C.4th 561, 1994 Pa. Dist. & Cnty. Dec. LEXIS 57
CourtPennsylvania Court of Common Pleas, Pike County
DecidedAugust 19, 1994
Docketno. 27-1994
StatusPublished

This text of 26 Pa. D. & C.4th 561 (Lattimore Development Associates v. Wiss) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Pike County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lattimore Development Associates v. Wiss, 26 Pa. D. & C.4th 561, 1994 Pa. Dist. & Cnty. Dec. LEXIS 57 (Pa. Super. Ct. 1994).

Opinion

THOMSON, P.J.

This case arises out of an appeal by the defendants, Tom and Jean Wiss, Uri Brinbaum, Robert and Florence Cassidy, and Bernard and Rochelle Donefer, of this court’s order entered on May 12, 1994, denying defendants’ motion to open judgment and reinstate appeal from an adverse judgment entered by the district justice.

The order denying their petition to open judgment and reinstate appeal was duly appealed, and by our [562]*562order of June 9, 1994, we directed the defendants to file a concise statement of matters complained of on appeal. In response, the defendants submitted the required statement. The defendants’ statement alleges two errors on the part of the trial court. First, that defendants’ failure to rule plaintiff to file complaint was insufficient grounds to strike an otherwise timely appeal. Second, that we should have found good cause to reinstate defendants’ appeal.1

Before proceeding to appellants’ allegations of error, we will briefly recount the relevant facts and procedural history giving rise to this appeal.

A hearing was scheduled before District Justice Gudrun Quinn. Defendants failed to appear at the hearing, and Justice Quinn entered judgment December 21, 1993 in favor of the plaintiff, Lattimore Development Associates. On January 11, 1994, the defendants filed a notice of appeal for a trial de novo before this court. On January 14, 1994, a proof of service of the notice of appeal was filed. For the reasons that follow, it was not accompanied with a proof of service of a rule to file a complaint upon appellee. Thereafter, on February 4, 1994, the plaintiff filed a motion to strike the appeal for failure to comply with the Pennsylvania Rules of Civil Procedure for District Justices. On the same day, upon praecipe of the plaintiff, the Prothonotary of Pike County struck defendants’ appeal. On March 11, 1994, defendants filed their motion to open judgment and reinstate appeal. Despite defendants’ contention that the prothonotary had no authority to strike their appeal, and that plaintiff or counsel misrepresented the nature of the record to induce the prothonotary to so act, the [563]*563striking of the appeal by the prothonotary was proper. The prothonotary’s act was administrative, not discretionary. Pursuant to Rule 1006 of the District Justice Rules, “... the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record.” Pa.R.C.P.D.J. no. 1006.

The issues before us then are, first, whether defendants’ failure to rule plaintiff to file the complaint within the time limits required by statute is grounds to strike an appeal that is timely filed, and secondly, whether the defendants showed good cause sufficient to reinstate the appeal.

As to the first issue, we believe the answer is found at Pa.R.C.P.DJ. no. 1005(B), wherein it states:

“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 ... within 10 days after filing the notice of appeal.” The rule that provides sanctions for failing to comply with the time limits prescribed in Rule 1005(B) immediately follows. Therein it states:
“Upon failure of the appellant to comply with Rule 1004A or Rule 1005B, the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.” Pa.R.C.P.D.J. no. 1006.

Applying the preceding two rules, we found that the failure to file with the prothonotary proof of service of a rule upon the appellee to file a complaint was grounds to strike an appeal that was otherwise timely filed.2 The defendants’ notice of appeal had been filed on January 11, 1994. The proof of service of a rule [564]*564to file complaint should have been placed of record by January 21,1994. The appellee waited until February 4,1994, and then, citing disregard of the Pa.R.C.P.D.J., praeciped the prothonotary to strike appellant’s appeal. Noting the violation of the 10 day requirement to file the rule, we believe the prothonotary’s action was proper.

The second issue raised by the defendants in their concise statement of matters complained of on appeal is whether the defendants showed good cause to reinstate their appeal.

The court of common pleas may reinstate the appeal upon good cause shown. Pa.R.C.P.D.J. no. 1006. (emphasis added) “Good cause” is not defined in the rules governing district justice proceedings. Elsewhere, good cause has been interpreted to require an appealing party to proffer some substantial reason, one that is legally sufficient for reinstating the appeal. Anderson v. Centennial Homes Inc., 406 Pa. Super. 513, 517, 594 A.2d 737, 739 (1991). “[T]he determination of whether good cause has been demonstrated is trusted to the trial court’s sound discretion.” See State Farm Insurance Companies v. Swantner, 406 Pa. Super. 235, 594 A.2d 316 (1991) (en banc).

We determined that good cause was lacking, and therefore denied reinstating the defendant’s appeal. In making this determination, we relied upon two cases.

In The City of Easton v. Marra, 230 Pa. Super. 352, 326 A.2d 637 (1974), the appellant had similarly failed to file a rule upon the appellee to file a complaint as then-existing rules required. Justice of the Peace Rule 1004, subd. B. Appellant therein contended that the court below abused its discretion in refusing to reinstate the appeal. Appellants’ good cause in Marra consisted of the appellant’s belief that the proceedings were criminal in nature, and therefore, followed the appeal procedures for criminal violations set forth in [565]*565the Minor Judiciary Court Appeals Act.3 Had the proceedings been criminal, appellant would have been in compliance with appeals procedure. The proceedings however, were civil, not criminal. Compliance with the criminal appeal procedure left him in noncompliance with the civil appeals procedure.

Despite his error in classification of the action, and the court even admitting that the municipal ordinance violated by the appellant was confusing and unsettled as to its status as civil or criminal, the court nonetheless held that the appellant’s good faith error failed to establish the requisite good cause sufficient to open and reinstate the appeal.

In the case sub judice, there is even less of an allegation of good cause. In testimony proffered at the hearing, counsel for the appellant testified that his office staff had drawn up the documents incorrectly. He alleged that, on the appeal form, his staff had entered the plaintiffs as defendants and vice versa, which resulted in the failure to complete the rule to file complaint. It was not until after judgment had been entered against his clients that counsel for the defendants became aware of the error. This staff error constitutes appellants’ sole assertion of good cause.

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Related

City of Easton v. Marra
326 A.2d 637 (Superior Court of Pennsylvania, 1974)
Slaughter v. Allied Heating
636 A.2d 1121 (Superior Court of Pennsylvania, 1993)
Anderson v. Centennial Homes, Inc.
594 A.2d 737 (Superior Court of Pennsylvania, 1991)
State Farm Insurance Companies v. Swantner
594 A.2d 316 (Superior Court of Pennsylvania, 1991)

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Bluebook (online)
26 Pa. D. & C.4th 561, 1994 Pa. Dist. & Cnty. Dec. LEXIS 57, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lattimore-development-associates-v-wiss-pactcomplpike-1994.