Slaughter v. Allied Heating
Slaughter v. Allied Heating
Opinion of the Court
This is an appeal from the final order entered by the lower court which denied appellant’s petition to reinstate its appeal
Before proceeding to consider appellant’s allegations of error, we will briefly recount the pertinent facts and procedural history giving rise to this appeal. Appellant, Allied Heating, contracted with Melvin Slaughter, Jr. to install a furnace in his residence. Mr. Slaughter was apparently dissatisfied with the performance of the furnace and the installation completed by appellant. For reasons which do not appear of record, Mr. Slaughter’s sister, Emma Slaughter, filed a complaint against appellant with the district magistrate in which she sought to recover $4,000.00 plus costs. Appellant did not attend the hearing and a judgment in the sum of $4,037.00 was entered in favor of Miss Slaughter on November 4, 1992.
Appellant thereafter filed a timely notice of appeal from the judgment with the trial court. According to appellant, notices of the appeal were allegedly sent via regular mail to appellee, Emma Slaughter, and to the district justice.
As all of the issues raised by appellant are inextricably intertwined, they will be addressed together.
As applied here, appellant admits that the proofs of service were not filed within the time period specified by Pa.R.C.P.D.J., Rule 1005B, 42 Pa.C.S.A., but nevertheless argues that its noncompliance should be disregarded pursuant to Pa.R.C.P., Rule 126, 42 Pa.C.S.A. Appellant refers us to several decisions issued by this court as well as the courts of common pleas which have found sufficient good cause to
Nearly all of the cases cited by appellant indicate that the appealing party timely served the notice of appeal upon both the opposing party and the district justice and had merely failed to timely file their proofs of service or their complaint. See, e.g., DelVerme v. Pavlinsky, 405 Pa.Super. at 445 and 450, 592 A.2d at 747 and 749; Quarato v. Facelifters, Ltd., 305 Pa.Super. at 537-539, 451 A.2d at 778; Katsantonis v. Freels, 277 Pa.Super. at 295-296, 419 A.2d at 779; Beck v. Weitzenhoffer, 49 Pa.D. & C.3d at 114; Seiple v. Pitterich, 35 Pa.D. & C.3d at 593, supra. But see Felker v. Seashock, 47 Pa.D. & C.3d at 127 (in which the notice of appeal was not served upon the opposing party until seventeen days after it had been filed). This distinction is significant when it is considered in light of the essential purposes of Rule 1005, which 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. Berry v. Sheaffer, 42 Pa.D. & C.3d 480, 483 (C.C.P. Cumberland County 1987). The rule also ensures 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. See Note, Pa.R.C.P.D.J., Rule 1005, 42 Pa.C.S.A. and Berry v. Sheaffer, supra. The requirements of Rule 1005 further promote the speedy, orderly and just determination of the appeal and eliminate any dispute as to whether service was actually made. Hyde v. Crigler, 133 Pittsburgh Legal Journal 270, 271, 10 Pa.D. & C.3d 769, 773 (C.C.P. Allegheny County 1979). Accord Wander v. National Development Corp., 139 Pittsburgh Legal Journal 369, 370, 12 Pa.D. & C.4th 627, 628-629 (C.C.P. Allegheny 1991). 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. See Wander v. National Development Corp., 139 Pittsburgh Legal Journal at 370, 12 Pa.D. & C.4th
Unlike the situations presented in the authorities cited by appellant, the record in this case is 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 prior to January 15, 1993 when they were served with the notice by appellant’s counsel. In fact, both appellee and the district justice deny receiving the notice of appeal before January 15.
In its petition to reinstate the appeal, the sole reason offered by appellant to explain its noncompliance was that it neglected to file the proofs of service due to inadvertent error.
Although appellant offers no justification for its failure to comply with the rules, appellant asserts that the noncompliance nonetheless should be disregarded because appellee has suffered no prejudice. As recognized by this court, “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.” Anderson v. Centennial Homes, Inc., 406 Pa.Super. at 518, 594 A.2d at 740. Because appellant has substantially failed to comply with the procedural rules for perfecting an appeal from a judgment entered by a district justice and because appellant has failed to show good cause for its procedural noncompliance, we are
Order affirmed.
. An order denying a motion to reinstate an appeal is a final order for purposes of appeal. Anderson v. Centennial Homes, Inc., 406 Pa.Super. 513, 516 n. 2, 594 A.2d 737, 739 n. 2 (1991).
. The rules governing appeals to the trial court do not provide for service by regular mail. Rather, Rule 1005A requires an appellant to serve a copy of the notice of appeal by personal service or by certified or registered mail. Pa.R.C.P.D.J., Rule 1005A, 42 Pa.C.S.A. There is nothing in the record indicating that appellant actually served the notice of appeal on appellee and the district; both appellee and the district justice informed the trial court that they did not receive the November notices allegedly mailed by appellant. Trial Court Opinion, dated 2/12/93, at 2-3 n. 1.
. Appellee has neither filed a brief nor otherwise advised us of her position in these proceedings.
. The three claims raised by appellant do not actually represent three distinct questions for review. Rather, appellant has presented us with three arguments as to why its appeal from the district justice’s judgment should be reinstated.
. Appellant, represented by the same counsel, previously appeared before this court in Allied Heating & Cooling, Inc. v. Reeves, 413 Pa.Super. 650, 596 A.2d 248 (1991), No. 1180 Pittsburgh 1990 (filed June 11, 1991). Although Allied v. Reeves presented essentially the same issue as that raised in the instant appeal, we note that Allied took the opposite position in that case and argued that the rules of procedure should be strictly construed and that the failure to comply with the rules should not be disregarded. Id., unpublished memorandum at 4.
. Appellee’s lack of notice of the appeal prior to January 15 is further supported by the fact that she did not file a praecipe to strike the appeal until January 19, 1993.
. In reaching this conclusion, we are not unmindful of the holdings in Felker v. Seashock, supra as well as this court’s decision in Allied v. Reeves, ante at n. 5 in which the appealing party’s failure to comply with Rule 1005 was disregarded even though the notice of appeal was not served upon the opposing party within the five-day period after the notice was filed with the court. See Felker v. Seashock and Allied v. Reeves, supra. However, neither of these decisions constitute binding precedent. See NPW Medical Center of N.E. Pennsylvania v. LS Design Group, P.C., 353 Pa.Super. 341, 347 n. 4, 509 A.2d 1306, 1309 n. 4 (1986) and Turner v. May Corp., 285 Pa.Super. 241, 252 n. 7, 427 A.2d 203, 208 n. 7 (1981). More importantly, both Felker and Allied are distinguishable from this case in that both involved the service of the notice of appeal within a relatively short period of time after the notice of appeal was filed. See Felker v. Seashock, 47 Pa.D. & C.3d at 127 (notice of appeal was served seventeen (17) days after it was filed with the court) and Allied v. Reeves, unpublished memorandum at 5-6 (notice of appeal was served twenty-eight (28) days after it was filed with the court). By way of contrast, fifty-eight (58) days elapsed between the filing of the notice of appeal and actual service of the notice in this case. Although the ten-day rule is flexible and is to be liberally construed, we do not believe that an appealing party should be
. Appellant’s claim of “inadvertent error” is puzzling as it implies that appellant possessed the proofs of service and simply failed to timely file them with the trial court. However, such an inference is negated by the fact that appellant has not presented any sender’s receipts demonstrating that copies of the notice of appeal were mailed to appellee and
Dissenting Opinion
dissenting:
While I recognize the majority’s resolution of this case complies with the Pennsylvania Rules of Civil Procedure for District Justices, I write separately to express concern over the draconian penalty which appellant must endure for its relatively minor violation of the Pa.R.C.P.D.J., Rule 1005B. I believe that striking appellant’s appeal is a harsh result where the brief delay in service of the notice of appeal has not prejudiced appellee. Accordingly, I dissent and would reinstate the appeal.
I note that civil actions before the district justice are routinely litigated by lay citizens of this Commonwealth who are not learned in the law and the applicable rules of civil procedure. Thus, I believe that when ruling upon violations of the rules of civil procedure of our own “people’s court”, we should liberally construe the rules and “disregard any error or defect or procedure which does not affect the substantial rights of the parties.” See, Pa.R.C.P. Rule 126.
Instantly, appellant timely filed its notice of appeal with the prothonotary of Allegheny County on November 11, 1992. Pa.R.C.P.D.J. Rule 1002. Although it claims to have served appellee and the district justice by first class mail in a timely manner, both appellee and the district justice deny receiving notice until January of 1993, well after the ten-day time limit imposed by Rule 1005B. Rule 1005A requires the appellant to serve the appellee and district justice via personal service or certified or registered mail which appellant did on January 15, 1993, when legal counsel was retained.
If an appellant demonstrates “good cause” why it neglected to comply with Rule 1005B, the lower court may reinstate appellant’s appeal. Pa.R.C.P.D.J. Rule 1006. It is my opinion
I am aware that such an interpretation of “good cause” would greatly expand its definition. However, I believe it is necessary to insure that ordinary citizens without the assistance of lawyers are able to secure adjudication of their disputes, despite insignificant, non-prejudicial deviations from the procedural rules.
Reference
- Full Case Name
- Emma SLAUGHTER v. ALLIED HEATING, Appellant
- Cited By
- 23 cases
- Status
- Published