IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

 

MONICA FERRETTI,                              :

Plaintiff                                                      :

                                                                   :

          v.                                                       :                            No. 2011-01717

                                                                   :

INTERIORS WITH STYLE, INC.,                   :

Defendant                                                  :

                                                                   :

 

ORDER

 

AND NOW, this 7th day of December, 2011, after careful consideration of the Defendant’s Petition to Reinstate Stricken Appeal, Defendant’s Petition is HEREBY GRANTED.

 

 

 

BY THE COURT:

____________________________, J.

CHARLES T. JONES, JR.

 

 

Cc: David Warner, Esquire

Kurt Ehresman, Esquire

IN THE COURT OF COMMON PLEAS

OF LEBANON COUNTY, PENNSYLVANIA

 

CIVIL DIVISION

 

 

MONICA FERRETTI,                             :

Plaintiff                                                      :

                                                                   :

          v.                                                       :                            No. 2011-01717

                                                                   :

INTERIORS WITH STYLE, INC.,                   :

Defendant                                                  :

                                                                   :

 

APPEARANCES:

 

David Warner, Esquire                                       For Plaintiff

Buzgon Davis

 

Kurt Ehresman, Esquire                                     For Defendant

 

OPINION BY JONES, JR., J.:

Before this Court is Defendant’s Petition to Reinstate Stricken Appeal. For the reasons that follow, we grant Defendant’s Petition.

 

1. I.                  FACTUAL & PROCEDURAL HISTORY

 

This case arises after Defendant entered into a contract with Plaintiff in April 2010 to perform renovations, including a bathroom design and remodeling job. As permitted in the proposal, Defendant hired a contract tiling professional, SK Flooring and Skip Cleland, to tile Plaintiff’s bathroom.  Upon completion of the job, Plaintiff alleged that several of the tiles on her bathroom wall were misaligned.

On June 23, 2011, Plaintiff filed a Complaint against Defendant for damages as a result of the misaligned tiles. After a hearing was held before Magisterial District Judge Hazel Swisher, Plaintiff obtained judgment against Defendant. Sharon Gatt, the owner of Interiors With Style, appeared pro se before the Magistrate. An award was entered in favor of Plaintiff for $4,308.72 and against Defendant. Gatt wished to appeal immediately after receiving an unfavorable judgment.

Gatt testified that on August 25, 2011, she gave the Lebanon County Prothonotary staff a Notice of Appeal, which had a cover letter, and four (4) copies of the appeal. The copies were not accompanied by a stamped envelope as local rule requires. Gatt spoke with a new staff member, who was unfamiliar with the appeal process, and then asked another staff member for assistance. Gatt was informed by the Prothonotary’s office that she could keep the four (4) copies of the appeal and that nothing further needed to be done in order for her to file the appeal. Gatt asked if they were sure that they did not need the four (4) copies of the appeal, and they stated that they did not need the copies. Gatt then asked if she needed to do anything else in order for the appeal to be filed and they assured her that they would mail everything out. The Prothonotary staff did not mention the absence of stamped envelopes. Gatt testified that the entire filing process took over an hour. In reliance on the Prothonotary’s office, Gatt did not serve Plaintiff with the Notice of Appeal.

Gatt obtained counsel after August 25, 2011.  Counsel for Defendant received service of a Praecipe to Strike Appeal filed by Plaintiff on September 13, 2011. Upon learning that the Notice of Appeal was not served upon Plaintiff, counsel for Defendant served the Notice of Appeal on or about September 13, 2011. On September 23, 2011, Defendant filed a Petition to Reinstate Stricken Appeal. The matter was listed for Argument Court held on October 28, 2011. A hearing was held before this Court on November 29, 2011. The matter is now ripe for disposition.

 

1. II.               STANDARD OF REVIEW

 

Rule 1002(A) of the Rules of Civil Procedure Governing Actions and Proceedings Before Magisterial District Judges provides:

A party aggrieved by a judgment for money . . . may appeal therefrom within thirty (30) days after the date of the entry of the judgment by filing with the prothonotary of the court of common pleas a notice of appeal on a form which shall be prescribed by the State Court Administrator together with a copy of the Notice of Judgment issued by the magisterial district judge.

 

Pa.R.C.P.M.D.J. No. 1002.

Service of a notice of appeal is to be in accordance with Rule 1005, which provides the following:

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 magisterial district judge 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 magisterial district judge 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 magisterial district judge, 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, 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.

 

C. In lieu of service and proof of service pursuant to subparagraphs A. and B. of this Rule, the court of common pleas may, by local rule, permit or require that the appellant file with the notice of appeal a stamped envelope pre-addressed to the appellee at his address as listed on the complaint form filed in the office of the magisterial district judge or as otherwise appearing in the records of that office, or the attorney of record, if any, of the appellee, and a stamped envelope pre-addressed to the magisterial district judge in whose office the judgment was rendered. Copies of the notice of appeal, and Rule pursuant to 1004B, if applicable, shall thereupon be mailed by the prothonotary or court by first class mail, with such service and any return being noted on the court’s docket.
Pa.R.C.P.M.D.J. 1005.

Furthermore, local rule provides the following:

By leaving a copy of all filed documents and proposed Orders together with stamped envelopes addressed for each opposing counsel and/or pro se litigant(s). The prothonotary shall use the envelopes provided to serve all filed documents and accompanying Orders of Court by mail. Thereafter, the prothonotary shall complete and file a Certificate of Service in compliance with sub-section (D). Such certificate shall constitute prima facie proof that service was accomplished.

 

Leb.Co.R.Civ.P. No. 52-205(D)(1).

The purpose of Rule 1006 is to “provide sanctions for failing to act within the time limits prescribed.” Pa.R.C.P.M.D.J. 1006. Failure to comply with the above-mentioned rules may result in the appeal being stricken. Pa.R.C.P.M.D.J. 1006. An appeal may be reinstated by the court of common pleas if good cause is shown. Pa.R.C.P.M.D.J. 1006. It is within sound discretion of the trial court to determine whether good cause is shown. Perin v. Gochnauer, 98 A.2d 755, 756 (Pa.Super.1953).With the foregoing in mind, we turn to the facts of this case.

 

 

1. III.           DISCUSSION

 

We find that good cause exists in this case. While there is no statutory definition of “good cause shown,” our courts have “interpreted it to require an appealing party to proffer some legally sufficient reason for reinstating the appeal.” Slaughter v. Allied Heating, 636 A.2d 1121, 1123 (Pa.Super.1993) (quoting Anderson v. Centennial Hones, 594 A.2d 737 (Pa.Super.1991)). For example, our Superior Court has consistently disregarded the mere failure to file the proof of service in a timely manner where it is clear that the opposing party has received notice of the appeal and the purpose of the rules has been satisfied. See, e.g., DelVerme v. Pavlinsky, 450, 592 A.2d 746, 749 (Pa.Super.1991); Quarato v. Facelifters, Ltd., 451 A.2d 777, 778 (Pa.Super.1982); Katsantonis v. Freels, 419 A.2d 778, 779-80 (Pa.Super.1980) (per curiam).

The purposes of Rule 1005 were enunciated in Slaughter as follows: (1) to prevent parties from appealing an adverse judgment of a district justice and delaying the case by failing to timely notify the non-appealing party; (2) to ensure that the district justice 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; and (3) to promote the speedy, orderly and just determination of the appeal and eliminate any dispute as to whether service was actually made. Slaughter, 636 A.2d at 1124. In Slaughter, a pro se appellant timely filed a notice of appeal, but due to inadvertent error, she allowed fifty-eight (58) days to elapse until actual service was effected. Slaughter, 636 A.2d at 1124. The trial court refused to reinstate the appeal, and the Superior Court affirmed, finding that the good cause requirement was not met. The court reasoned that appellant gave no explanation as to the lateness and that appellant’s pro se status alone does not establish good cause. Slaughter, 636 A.2d at 1125. The court also provided that “where 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.” Slaughter, 636 A.2d at 1124.

Our case is distinguishable from Slaughter because a sufficient explanation was given for Defendant’s noncompliance. It is uncontested that Defendant filed the Notice of Appeal in a timely manner; it is only the timeliness of service of the appeal that is at issue. Sharon Gatt filed her appeal pro se and reasonably relied upon the Prothonotary personnel to effect service. Gatt testified that she filed the Notice of Appeal on August 25, 2011, which was well within the appeal period. When filing the appeal, Gatt brought several copies of the Notice of Appeal with her and repeatedly asked the Prothonotary staff if they needed such copies to which they replied they did not. Gatt also asked whether she needed to do anything else for the appeal and the Prothonotary staff assured her that she did not. Gatt primarily dealt with a new staff member, who had been working at the Prothonotary’s office for approximately two (2) weeks. Gatt’s interaction with the Prothonotary staff was over one (1) hour.

In addition, the Prothonotary staff member who helped Gatt testified that she did not know the proper appeal procedure when speaking with Gatt and could not provide a definition of “effect service” to the Court. When asked about the Prothonotary’s practice of providing service for appellants, she initially stated that they mail out documents “all of the time” then later stated that it only happens “sometimes.” We found Gatt’s testimony credible as to her reliance on the Prothonotary staff. Moreover, we agree with Defendant that appellants, whether pro se or counsel, should be able to rely upon the Prothonotary staff as to advice on procedural steps when filing documents. See Warner v. Cortese, 288 A.2d 550 (Pa.Cmwlth.1972) (prothonotary has the duty to inspect documents tendered for filing and reject them if not on their face in the proper form).

Furthermore, the purposes of Rule 1005 have been satisfied. First, we find that there was no intent to delay here because Gatt believed that service was effected based on the Prothonotary staffs’ representations. Moreover, upon learning that service was not made, Defendant’s counsel immediately made service upon Plaintiff. The fact that the appeal was filed well before the thirty (30) day deadline to appeal is further evidence that there was no intent to delay here. Secondly, Plaintiff received notice of the appeal, which is evidenced by the fact that she filed a Praecipe to Strike Appeal. See Slaughter, 636 A.2d at 1124, n. 6 (finding that the fact that a party filed a praecipe to strike an appeal suggests that the party received notice of the appeal). Third, the appeal will be determined in a speedy, orderly and just way because service was effected within a short time after the appeal was filed—specifically seven (7) days after the appeal period lapsed.[1] See Felker v. Seashock, 47 Pa.D.&C.3d 126, 127 (Pa.Com.Pl. 1987) (appeal reinstated when service effected seventeen (17) days after appeal filed); cf. Slaughter, 636 A.2d at 1124 (appeal not reinstated when service effected fifty-eight (58) days after appeal filed).

In conclusion, we find that the Defendant has shown good cause for reinstating the appeal and the purposes of Rule 1005 were not hindered. Consequently, Defendant’s Petition is granted. To find otherwise would result in a harsh application of rules of procedure and caselaw. An Order will be entered consistent with the foregoing.

 

 

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