Slaughter v. Allied Heating

BROSKY, Judge.

This is an appeal from the final order entered by the lower court which denied appellant’s petition to reinstate its appeal from the judgment entered by the district justice.¹ Appellant presents the following issues for review: (1) whether appellant’s failure to technically comply with the requirements of Pa.R.C.P.D.J., Rule 1005B, 42 Pa.C.S.A. should be disregarded; (2) whether' appellant substantially complied with the requirements of Pa.R.C.P.D.J., Rule 1005B, 42 Pa.C.S.A.; and (3) whether appellant’s procedural noncompliance prejudiced appellee. For the reasons set forth below, we affirm.

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.² No proofs of service were filed by appellant within the ten-day period specified by Rule 1005B of the Pennsylvania Rules of Civil Procedure for District Justices, 42 Pa.C.S.A. Although appellant had been unrepresented during the proceedings before the district justice, appellant retained counsel in January, 1993. Counsel discovered that the proofs of service were absent from the record and promptly served appellee and the district justice with the notice of appeal on January 15, 1993. Proofs of service were then filed with the trial court. On January 19,1993 appellee filed a praecipe to strike the appeal because of appellant’s failure to comply with Rule 1005B. As a result, the prothonotary struck the appeal. Appellant filed an emergency petition to reinstate the appeal on January 28, 1993. Appellant’s petition was denied by the lower court. Appellant thereafter initiated this timely appeal.³

As all of the issues raised by appellant are inextricably intertwined, they will be addressed together.⁴ Appellant essentially challenges the trial court’s refusal to reinstate the appeal from the judgment entered by the district justice. Pursuant to Rule 1006, the trial court may reinstate an appeal which has been stricken “upon good cause shown.” Pa. R.C.P.D.J., Rule 1006, 42 Pa.C.S.A. While the phrase “good cause shown” has not been precisely defined, this court has interpreted it to require an appealing party to proffer some legally sufficient reason 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.” Id.

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 reinstate stricken appeals even though the technical requirements of the rules were not fully satisfied.⁵ See, e.g., DelVerme v. Pavlinsky, 405 Pa.Super. 443, 450, 592 A.2d 746, 749 (1991) (plaintiffs failure to comply with Rule 1004A was disregarded where the notice of appeal was timely filed and served on the defendants and the district justice, and no prejudice resulted to the defendants); Quarato v. Facelifters, Ltd., 305 Pa.Super. 536, 538-539, 451 A.2d 777, 778 (1982) (defendant’s failure to comply with Rule 1005B was disregarded where the defendant failed to timely file the proofs of service but there was evidence that the plaintiff had received actual notice of the appeal within the requisite time period); Katsantonis v. Freels, 277 Pa.Super. 294, 295-296, 419 A.2d 778, 779-780 (1980) (per curiam) (good.cause for reinstating the appeal was shown where the defendant’s counsel promptly mailed the proofs of service to the prothonotary as soon as they were received and the proofs were filed on the sixth rather than the fifth day after the notice of appeal was filed); Beck v. Weitzenhoffer, 49 Pa. D. & C.3d 112, 114 (C.C.P. Dauphin County 1988) (failure to timely file proofs of service was disregarded where the notice of appeal was timely filed and served upon the opposing party and good cause for the noncompliance was shown); Felker v. Seashock, 47 Pa. D. & C.3d 126, 127-129 (C.C.P. Monroe County 1987) (failure to serve the notice of appeal on the adverse party and the district justice until seventeen days after the notice of appeal was filed was disregarded where good cause for the noncompliance was shown); Seiple v. Pitterich, 35 Pa. D. & C.3d 592, 596-597 (C.C.P. Mercer County 1984) (failure to timely file the proofs of service was disregarded where the notice of appeal was timely filed and served and good cause for the noncompHance was shown). While appellant’s interpretation of the above authorities is indeed correct, we find these decisions to be factually distinguishable from the case sub judice.

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 at 628-629; Berry v. Sheaffer, 42 Pa.D. & C.3d at 484; Hyde v. Crigler, 133 Pittsburgh Legal Journal at 271-272, 10 Pa.D. & C.3d at 774. Consequently, the mere failure to file the proofs of service in a timely manner will be disregarded where it is clear that the opposing party has received notice of the appeal and that the purpose of the rules has been satisfied. See Wander v. National Development Corp., Beck v. Weitzenhoffer, Berry v. Sheaffer, Seiple v. Pitterich and Hyde v. Crigler, supra.

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 15.⁶ See Trial Court Opinion, dated 2/12/93 at 2-3 n. 1. Under these circumstances, the decisions which disregard a technical failure to timely file the proofs of service are distinguishable from this case.⁷

Appellant acknowledges the distinction between the facts presented here and the decisions upon which it relies. Appellant nevertheless contends that Pa.R.C.P., Rule 126, 42 Pa.C.S.A. compelled the trial court to disregard the procedural defects. Notwithstanding appellant’s assessment, Rule 126 does not require the trial court to disregard procedural defects; rather, it permits the trial court, in the exercise of its discretion, to do so where the substantive rights of the opposing party have not been prejudiced. Anderson v. Centennial Homes, Inc., 406 Pa.Super. at 518, 594 A.2d at 739. In the context of this particular case, however, the trial court must additionally consider whether appellant has demonstrated good cause for reinstating the appeal in determining whether to disregard appellant’s failure to comply with the rules. See id., 406 Pa.Super. at 516-517, 594 A.2d at 739-740 and Pa.R.C.P.D.J., Rule 1006, 42 Pa.C.S.A. and Note thereto (providing that the trial court may reinstate an appeal upon good cause shown; the note further indicates that this rule was intended to provide sanctions for failing to act within the prescribed time limits). Appellant has not satisfied the good cause requirement here.

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.⁸ Appellant’s Emergency Petition to Reinstate Appeal, dated 1/28/93 at paragraph 5. However, an unspecific allegation that the failure to comply with Rule 1005B was attributable to “inadvertent error” is insufficient to show good cause. See Wander v. National Development Corp., 139 Pittsburgh Legal Journal at 369, 12 Pa.D. & C.4th at 628. Appellant does not pursue its assertion of inadvertent error on appeal. Instead, appellant provides us with no explanation for its noncompliance aside from a vague reference to the fact that it was unrepresented by counsel at the time the notice of appeal was filed. It is well settled that an individual who chooses to proceed pro se is not entitled to any particular advantage because of his or her lack of legal training. O’Neill v. Checker Motors Corp., 389 Pa.Super. 430, 434, 567 A.2d 680, 682 (1989). As our Supreme Court has explained, an individual choosing to represent him- or her-self must, to some reasonable extent, assume the risk that the lack of expertise and legal training will prove his or her undoing. Vann v. Commonwealth, Unemployment Compensation Board of Review, 508 Pa. 139, 149, 494 A.2d 1081, 1086 (1985). Accord O’Neill v. Checker Motors Corp. Appellant’s pro se status, without more, thus does not establish good cause.

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 unable to conclude that the trial court abused its discretion by refusing to reinstate the appeal in this case. We therefore affirm the order entered by the trial court.

Order affirmed.

POPOVICH, J., files a dissenting opinion.

1 . 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).

2 . 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.

3 . Appellee has neither filed a brief nor otherwise advised us of her position in these proceedings.

4 . 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.

5 . 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.

6 . 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.

7 . 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 permitted to indefinitely extend the time for serving the notice of appeal so as to frustrate the purposes of the rule. Felker is further distinguishable because the appealing party in that case demonstrated good cause for reinstating the appeal. Unlike the appealing party in Felker, the appellant here has not offered sufficient explanation for its noncompliance. We are also unpersuaded by the reasoning set forth in Allied since the court therein focused exclusively upon the question of whether the non-appealing party’s rights would be prejudiced and failed to consider whether the appealing party had established good cause for reinstating the appeal as required by Pa.R.C.P.DJ., Rule 1006, 42 Pa.C.S.A.

8 . 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 the district justice on or about November 18, 1992. See Pa.R.C.P.D.J., Rule 1001(9) and Note to Rule 1005, 42 Pa.C.S.A. (defining proof of service and requiring a sender’s receipt to be attached to the proof of service where service is made by mail). In the absence of such evidence, we áre unable to ascertain how the failure to file the proofs of service was inadvertent since there is no indication that appellant had obtained the proofs of service at the time the notice of appeal was filed.