Giunta’s Green Valley Landscaping v. Protechs Enterprises, LLC; Nos. 2016-00964 and 2016-00965

Civil Action-Law-Notice of Appeal-Magisterial District Court Judgment-Proof of Service-Timeliness-Praecipe to Reinstate Appeal-Good Cause

Plaintiff filed a Notice of Appeal with the Court of Common Pleas from a judgment entered by a magisterial district judge on behalf of Defendant. Defendant filed a Praecipe to Strick the Appeal, asserting that Plaintiff failed to file the Proof of Service of the Notice of Appeal within the time constraints of Pa.R.C.P.M.D.J. Rule 1005(B). Plaintiff subsequently filed a Petition to Reinstate Appeal.

1. Pa.R.C.P.M.D.J. Rule 1006 indicates that the trial court has the discretion to determine whether good cause exists to reinstate an appeal from a judgment of a magisterial district judge.

2. In order to set forth good cause to reinstate an appeal, the appealing party is required to proffer some legally sufficient reason for reinstating the appeal.

3. Rule 1005(B) requires that service of a complaint be made within five (5) days after the filing of the notice of appeal and proof of service be filed to eliminate any dispute as to whether service actually was accomplished, to prevent parties from appealing an adverse judgment and delaying the case by failing timely to notify the nonappealing party and to ensure that the magisterial district judge will be notified with regard to actions to execute on the judgment rendered by the magisterial district judge.

4. The five (5) day requirement for filing of proof of service under Rule 1005(B) is not a jurisdictional or mandatory requirement. Rather, the court may overlook procedural errors when a party substantially has complied with the requirements of the rule and no prejudice results.

5. Pa.R.C.P. Rule 126 provides that the rules of civil procedure are to be construed liberally to secure the just, speedy and inexpensive determination of cases and the court may disregard any error or defect of procedure that does not affect the substantial rights of the parties.

6. When an appellant timely has served the notice of appeal from a magisterial district judge judgment and there is no dispute on that issue, none of the purposes underlying Rule 1005(B) would be served by penalizing an appellant who fails to file a proof of service within five (5) days of the lodging of the notice of appeal.

7. In light of the fact that evidence was presented that the filing of the proof of service more than five (5) days after the filing of the notice of appeal was the result of waiting by Plaintiff’s counsel to receive the certified return receipts from service of the notice of appeal, the return of which may have been delayed by the intervening holiday weekend, for filing with the proof of service, Plaintiff substantially complied with Rule 1005(B) without deliberate ignorance of its directives, there is no contention that Defendant did not receive the notice of appeal in a timely manner, Defendant has shown no prejudice and Plaintiff’s late filing placed no additional burdens on Defendant or the court, good cause has been established to excuse the delay in filing the proof of service and to justify reinstatement of Plaintiff’s appeal.

L.C.C.C.P. Nos. 2016-00964 and 2016-00965, Opinion by John C. Tylwalk, President Judge, January 17, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION NO. 2016-00964 and NO. 2016-00965

GIUNTA’S GREEN VALLEY LANDSCAPING

v.

PROTECHS ENTERPRISES, LLC

APPEARANCES:

GREER ANDERSON, ESQUIRE FOR GIUNTA’S GREEN VALLEY

LANDSCAPING

KURT BLAKE, ESQUIRE FOR PROTECHS ENTERPRISES, LLC

OPINION, TYLWALK, P.J., JANUARY 17, 2017.

Plaintiff commenced two actions before Magisterial District Judge Carl Garver (“MDJ”) seeking compensation for salt application and landscaping services allegedly provided to Defendant. Judgment in favor of Defendant was entered on June 9, 2016 by the MDJ. Plaintiff filed a Notice of Appeal with this Court on June 21, 2016 and mailed notice to the MDJ and Defendant by certified mail on June 24, 2016. The certified mail return receipts indicate that the Notice of Appeal was delivered to the MDJ’s office on June 27, 2016 and to Defendant’s counsel on June 29, 2016. After the receipts were returned to Plaintiff’s counsel, the Proof of Service was filed on July 7, 2016.

Defendant’s counsel entered his appearance on July 1, 2016. On July 25, 2016, Defendant filed a Praecipe to Strike the Appeal pursuant to Pa.R.C.P.M.D.J. 1006:

Rule 1006. Striking Appeal

Pa.R.C.P.M.D.J. 1006. As the basis for its Petition to Strike Appeal, Defendant asserts that the Proof of Service was not filed within the time constraints of Pa.R.C.P.M.D.J. 1005(B):

Pa.R.C.P.M.D.J. 1005(B).

Plaintiff filed its Complaint in these actions on July 29, 2016. On August 11, 2016, it filed its Response to Defendant’s Praecipe to Strike Appeal. On October 26, 2016, Plaintiff filed the Petition to Reinstate Appeal. On November 14, 2016, Defendant filed its Answer to the Complaint with New Matter. We conducted a hearing on Plaintiff’s Petition to Reinstate Appeal on December 12, 2016, both parties have submitted Briefs, and the matter is now before us for disposition.

At the hearing, the assistant of Plaintiff’s counsel’s testified that the Proof of Service was not filed until July 7, 2016 because she was waiting for the certified mail receipts to be returned to their office. She noted that the intervening July 4^th holiday weekend would have contributed to the delay in the return of the receipts and in the filing of the Proof of Service.

Under Rule 1006, the trial court has discretion to determine whether there is good cause for reinstating the appeal. Pa.R.C.P.M.D.J. 1006. After examining the appellant’s excuse for failing to timely file the proofs of service, the trial court is not required, but is permitted to reinstate the appeal, in its discretion. Hanni v. Penn Warranty Corporation, 658 A.2d 1349 (Pa. Super. 1995). Rule 1006 does not define what constitutes good cause shown; however, the Superior Court has interpreted it to require an appealing party to proffer some legally sufficient reason for reinstating the appeal. Harp Landscaping & Brandon Cominsky v. O’Linchey, 2016 WL 5266544 (Pa. Super. 2016) (non-precedential memorandum decision), citing Slaughter v. Allied Heating, 636 A.2d 1211 (Pa. Super. 1993). Simply stating that the noncompliance did not substantially affect the rights of the appellee, without explanation for the noncompliance, is not alone sufficient to demonstrate good cause to reinstate an appeal. Harp Landscaping, at p. 7, citing Anderson v. Centennial Homes, Inc., 594 A.2d 737, 740 (Pa. Super. 1991).

Rule 1005B serves several purposes: that service be made within five days after the filing of the notice of appeal and that proof of service be filed to eliminate any dispute as to whether service was actually accomplished. Hyde v. Crigler, 10 Pa.D. & C.3d 769 (C.C.P. Allegheny Cnty. 1979). This rule is also meant to prevent parties from appealing from an adverse judgment of a district magistrate 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). It also ensures that the district magistrate will be notified as the notice of appeal may act as a supersedeas, and thus, may affect the prevailing party’s attempt to execute on the judgment. Id.

The five-day requirement for filing the proof of service under Rule 1005(B) is not a jurisdictional or mandatory requirement. Seiple v. Pitterich, supra. A court may overlook procedural errors when a party has substantially complied with the requirements of a rule and no prejudice results. Pomerantz v. Goldstein, 387 A.2d 1280 (Pa. 1978). Pa.R.C.P. No. 126 provides that “the rules of civil procedure are to be construed liberally “to secure the just, speedy and inexpensive determination” of cases, and that the court “may disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Pa.R.C.P. No. 126. Many cases have excused strict compliance with the requirements of Rule 1005(B) based on Rule 126 and the holding in Pomerantz: “… when an appellant has timely served the notice of appeal and there is no dispute on the issue, none of the purposes underlying Rule 1005 are served by penalizing the appellant who fails to file the proof of service within five days after filing the notice of appeal.” Seiple v. Pitterich, supra. at 596, and have found “good cause” to reinstate an appeal in various instances. See, e.g., Berry v. Sheaffer, 42 Pa. D. & C. 3d 480 (C.C.P. Cumberland Cnty. 1987) (agreement between parties to cooperate in appeal if settlement was not reached); Katsantonis v. Freels, 419 A.2d 778 (Pa. Super. 1980) (attorney acted promptly in mailing proof of service on same day that rule to file complaint and notice was received from Prothonotary); Felker v. Seashock, 47 Pa. D. & C. 3d 126 (C.C.P. Monroe Cnty. 1987) (inexperience/mistake of counsel as to requirements for appeal).

Hyde v. Crigler, supra, involved a situation similar to the one before us. The appellant in that case also waited until the certified mail receipts were returned before filing the proof of service. As a result, the proof of service was filed outside of the ten-day period permitted by Rule 1005(B) and the appellee filed a praecipe to strike the appeal. In granting the appellant’s petition to reinstate, the Court explained:

Hyde, at 774.

Likewise, Plaintiffs here are in substantial compliance with Rule 1005(B) and did not deliberately ignore its directives. There is no contention that the Notice of Appeal was not timely filed or that Defendant did not receive the Notice in a timely manner. We believe that counsel’s assistant’s mistake in awaiting return of the certified mail receipts, together with the delay caused by the intervening holiday, constitute good cause to excuse the minor delay and to justify reinstatement of the appeal. Defendant has shown no prejudice and Plaintiff’s late filing placed no additional burdens on Defendant or the Court. Thus, we believe that Plaintiff’s Petition to Reinstate Appeal should be granted. We will issue an Order to quash the Defendant’s Praecipe to Strike and reinstate the appeal.