Gary J. Heim v. Pennex Aluminum Company, Metal Exchange Corporation, Wizard Transport, LLC, and Neil Schnetzka No. 2015-02060

Civil Action-Law-Magisterial District Court-Notice of Appeal-Proof of Service-Timeliness-Prejudice-Good Cause-Instructions of Prothonotary

Plaintiff brought an action against Defendants before the Magisterial District Court for property damages resulting from a motor vehicle accident. The Magisterial District Judge entered judgment on behalf of Defendants. Plaintiff filed a Notice of Appeal to the Court of Common Pleas on November 18, 2015, but he did not file Proof of Service until December 2, 2015. Defendants Pennex Aluminum Company and Metal Exchange Corporation (“Moving Defendants”) filed a Praecipe to Strike Appeal based upon Plaintiff’s untimely filing of the Proof of Service, and the Prothonotary of Lebanon County accepted a Praecipe to Not Strike/to Reinstate Appeal subsequently filed by Plaintiff. Moving Defendants filed a Motion to Strike Plaintiff’s Appeal based upon the untimeliness of the filing of the Proof of Service.

1. Pa.R.C.P.J.P. Rule 1005B provides that an appellant shall file with the Prothonotary proof of service of copies of a notice of appeal within ten (10) days after filing the notice of appeal. The purpose of Rule 1005B is to prevent parties from appealing from an adverse judgment of a district judge and then delaying the case by failing timely to notify the non-appealing party.

2. Pa.R.C.P. Rule 126 vests the court with discretion to disregard procedural defects if the substantive rights of the parties have not been prejudiced. In addition, the party seeking to excuse a procedural defect also must show that good cause existed for the party’s noncompliance.

3. Since Defendants received the Notice of Appeal within ten (10) days of its filing, they were not prejudiced by Plaintiff’s failure to file Proof of Service within ten (10) days as required by Rule 1005B. In light of the fact that Plaintiff followed the Rules listed on the Prothonotary’s website in lodging the Proof of Service, Plaintiff established good cause for his noncompliance with regard to the filing of the Proof of Service so as to excuse the procedural defect.

L.C.C.C.P. No. 2015-02060, Opinion by Charles T. Jones, Jr., Judge, May 19, 2016.

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

CIVIL DIVISION No. 2015-02060

GARY J. HEIM, Plaintiff

v.

PENNEX ALUMINUM COMPANY, METAL EXCHANGE CORPORATION, WIZARD TRANSPORT, LLC, and NEIL SCHNETZKA, Defendants

ORDER

AND NOW, this 19^th day of May, 2016, after careful consideration of the record and the oral arguments set forth by parties at oral argument on February 26, 2016, Defendant’s Motion to Strike Plaintiff’s Appeal and Preliminary Objections are hereby DENIED in part and GRANTED in part. Plaintiff shall submit an amended complaint with proper specificity and proper service within thirty (30) days. Plaintiff shall also file a motion to reinstate this Appeal.

APPEARANCES:

Gary Heim, pro se For Plaintiff

Hunter Schenck, Esquire For Defendants

OPINION BY JONES, JR., J.:

Before the Court are Defendants Pennex Aluminum Company (hereinafter “Pennex”) and Metal Exchange’s Motion to Strike Plaintiff’s Appeal/Preliminary Objections and Plaintiff’s Motion to Reinstate the Appeal. After careful review of the record as well as briefs submitted by all parties, Defendants Pennex and Metal Exchanges’ Motion to Strike/Preliminary Objections are hereby denied in part and granted in part. Plaintiff is hereby directed to file a Motion to Reinstate Appeal.

PROCEDURAL AND FACTUAL HISTORY

Gary Heim (herein “Plaintiff”) brought an action against Pennex Aluminum Company, Metal Exchange Corporation, Wizard Transport, LLC, and Neil Schnetzka (herein “Defendants”) in Magisterial District Court for property damages that resulted from a motor vehicle accident that occurred on May 18, 2015. The Magisterial District Judge ruled in favor of the Defendants, and Plaintiff filed an Appeal on November 18, 2015. Plaintiff filed Notice of Appeal on November 18, 2015 but did not file Proof of Service until December 2, 2015.

On December 16, 2015, Defendants, Pennex Aluminum and Metal Exchange Corporation (herein “Moving Defendants”), filed a Praecipe to Strike the Appeal because Plaintiff failed to comply with Pa.R.C.P.J.P. 1005B. Plaintiff filed a Praecipe to Not Strike/to Reinstate Appeal, which was received by all Defendants on December 30, 2015. The Prothonotary accepted the Plaintiff’s Praecipe to Not Strike/to Reinstate Appeal.

Moving Defendants submitted briefs arguing that the Appeal was properly stricken due to Plaintiff’s failure to comply with Pa.R.C.P.J.P. 1005B, and the Prothonotary lacks the authority to reinstate the appeal upon the Plaintiff’s Praecipe. Moving Defendants also argue that because the Appeal was properly stricken, the Court lacks subject matter jurisdiction over the Appeal. Plaintiff argues that he complied with Pa.R.C.P.J.P. 1005B, but if this Court finds that he did not comply with Pa.R.C.P.J.P. 1005B, pursuant to Pa.R.C.P. 126, the Court should disregard his noncompliance with Pa.R.C.P.J.P. 1005B. Plaintiff further argues that he has demonstrated good cause under Pa.R.C.P. 1006, and the Court should deny Moving Defendant’s Motion to Strike. Plaintiff also argues that the Court should reinstate the appeal at this time.

Moving Defendants also argue that they should be removed from this action because they are shippers, and there is no law that provides shippers can be held vicariously liable for the alleged actions of carriers of whom the shipper has never held authority. Plaintiff argues that he believes that Moving Defendants had a legal relationship with the other Defendants that Moving Defendants can be held liable due to that agreement. Plaintiff argues that no discovery has taken place, so he does not yet know the true relationship between the Defendants, and until Plaintiff has a chance to conduct discovery, Moving Defendants should not be removed from this action.

Finally, Moving Defendants argue that Plaintiff is not entitled to attorney’s fees because he is proceeding pro se and there is no action or statute which would enable Plaintiff to receive attorney’s fees. Plaintiff argues that although he is currently proceeding pro se, he may hire an attorney, and therefore, attorney’s fees should not be denied at this point. The matter is now ripe for disposition.

STANDARD OF REVIEW

Preliminary objections should be sustained only in cases that are clear and free from doubt. Baker v. Brennan, 213 A.2d 362 (Pa. 1965). The test for preliminary objections is whether it is clear and free from doubt from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Firing v. Kephart, 353 A.2d 833 (Pa. 1976). To determine whether preliminary objections have been properly sustained, the court must consider as true all of the well-pleaded material facts set forth in the complaint and all reasonable inferences that may be drawn from those facts. Feingold v. Bell of Penn., 383 A.2d 791 (Pa. 1977).

DISCUSSION

Defendant raises a Motion to Strike Plaintiff’s Appeal and four (4) additional preliminary objections.

Pa. R.C.P.J.P. 1005B 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 if required to request such a rule by Rule 1004B, within ten (10) days after filing the notice of appeal.” Pa.R.Civ.P.J.P. 1005B. The purpose of Pa.R.C.P.J.P. 1005B 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, (Pa.Super.1993). Pa.R.C.P. 126 states that the Court has the discretion to disregard procedural defects where the substantive rights of the parties have not been prejudiced. Pa.R.Civ.P. 126. Along with showing that there is no prejudice, the party must also show that there was good cause for the party’s noncompliance. Id.

In the current case, Plaintiff filed the Notice of Appeal on November 18, 2015, and filed the Proofs of Service for the Notice of Appeal on December 12, 2015. Plaintiff sent copies of the Notice of Appeal to the Defendants and their attorneys. The Defendants received the Notice of Appeal on November 25, 2015. Since the Defendants received the Notice of Appeal within the ten (10) days required by Pa.R.C.P.J.P. 1005, they were not prejudiced by the Plaintiff’s failure to file Proof of Service of the Notice of Appeal.

Plaintiff argues that he filed the Proof of Service within ten (10) business days, and Pa.R.C.P.J.P. 1005B does not specify if Proof of Service must be filed within ten (10) business days or ten (10) consecutive days. Although Plaintiff is correct in stating that the rule is not specific about whether the ten (10) days should be counted as business days or consecutive days, inadvertent error does not necessarily satisfy the good cause requirement in Pa.R.C.P 1006. Slaughter v. Allied Heating, 636 A.2d 1121, (Pa.Super.1993) Plaintiff further argues that he was following the rules that were on the Prothonotary’s webpage, and those rules were incorrect.

Because Plaintiff was following the Prothonotary’s instructions, and there was no reason for Plaintiff to believe the instructions were incorrect, the Court determines that Plaintiff has demonstrated good cause. Plaintiff has demonstrated good cause and no prejudice was caused by Plaintiff’s failure to comply with Pa.R.C.P.J.P. 1005B. Therefore, the Court will disregard the procedural defects pursuant to Pa.R.C.P. 126, and Defendant’s Motion to Strike is denied. Plaintiff must file a proper Motion to Reinstate in order to get the appeal reinstated.

Moving Defendants argue that because the Lebanon County Prothonotary reinstated Plaintiff’s Appeal without having the authority to do so, this Court does not have jurisdiction of this matter because it was properly stricken, and therefore, no longer exists. Pa. R.C.P 1006 allows the Court of Common Pleas to reinstate an appeal upon good cause shown, so even if the Prothonotary would not have reinstated Plaintiff’s appeal, this Court would continue to have subject matter jurisdiction over this matter. Therefore, Moving Defendants’ Preliminary Objection regarding subject matter jurisdiction is denied.

Moving Defendants argue that they are shippers and have never held authority over any vehicle owned by Wizard Transport, LLC (co-defendant). Moving Defendants further argue that shippers of goods are not vicariously liable for alleged actions of a carrier over whom the party had no authority, and therefore, all claims against Moving Defendants should be dismissed. Plaintiff argues that it is Plaintiff’s belief that Moving Defendants either owned the vehicle that collided with Plaintiff’s vehicle and/or due to a legal arrangement between Moving Defendants, Plaintiff’s allegations regarding authority, control, employment and agency are legitimate. Plaintiff argues that Moving Defendants should continue to be parties to this action until Plaintiff has the opportunity to conduct discovery to determine the relationships between all defendants.

Because there has been no discovery conducted, Plaintiff is unable to determine the legal relationship of Moving Defendants to the other parties. Plaintiff has a reason to believe that Moving Defendants, as shippers, have a have a legal liability under respondeat superior or other vicarious liability legal theory, and Moving Defendants should not be dismissed until discovery proves that there is no legal theory that allows for Moving Defendants to continue as parties to this action.

Moving Defendants argue that Plaintiff failed to comply with Pa.R.C.P. 1019 because Plaintiff did not specifically state special damages. Moving Defendants state that Plaintiff alleges damage to his own vehicle but does not specify where the damage appears on his vehicle, what the damage to his vehicle is or the amount of the damage to his vehicle. Moving Defendants argue that due to Plaintiff’s failure to comply with Pa.R.C.P. 1019, the Court should direct Plaintiff to file a more specific Complaint. This Court finds that Plaintiff has failed to state with specificity the damages to his vehicle, where the damage is and the amount of the damage. Therefore, this Court will allow Plaintiff to refile his Complaint.

Moving Defendants argue that Plaintiff is not entitled to Attorney’s fees because he is proceeding pro se, and therefore, he has no attorney’s fees regarding this matter. Moving Defendants further argue that Plaintiff states no cause of action which would enable him to recover attorney’s fees. Plaintiff argues that he is currently proceeding pro se but may hire an attorney at some point, so attorney’s fees should not be removed at this time. This Court finds that there is no cause of action or statute that enables Plaintiff to recover attorney’s fees.

CONCLUSION

For the reasons set forth above, Defendant’s Motion to Strike/Preliminary Objections are hereby granted in part and denied in part. Plaintiff is directed to file a Motion to Reinstate Appeal. An Order will be entered consistent with the foregoing.