Thinkgrow Partners v. Parks – Pa. Super. – 8-26-24 – non-precedential ***
https://www.pacourts.us/assets/opinions/Superior/out/J-A09043-24m%20-%20106049081278758898.pdf?cb=1
Appellant filed writ of certiorari from MDJ decision giving appellee, property owner and judgment for possession in alleged landlord-tenant case. Appellant claimed that he was not a tenant but rather a purchases under a lease-purchase agreement, which is not subject to LT law and over which MDJ does not have jurisdiction.
It is undisputed that appellant timely served counsel for the property owner. Appellant also timely served MDJ using a form – apparently issued and approved by AOPC – which contained “only a section for proof of service” on the MDJ but with “no corresponding section for proof of service on the opposing party.” So appellant didn’t filed proof of service on owner’s counsel until after her case was dismissed for failure to comply with MDJ Rule 1011(c), which required proof of service within 5 days of service.
Superior Court affirmed the trial court’s dismissal of the certiorari action for failure to comply with MDJ Rule 1011 C, noting that it was a “particularly harsh” result, expecially given that locak of dispute that the owner’s counsel had been timely served. Both courts also noted that a different result might have occurred if this were an appeal rather than certiorari. The Rules for appeals, MDJ Rule 1006, allow a court to reinstate an appeal, where there was an untimely proof of service, “upon good cause shown.”
Both courts relied on the mandatory language of MDJ Rule 1011 © (certiorari “shall....be stricken”) with no saving language as with appeals, thus negating any discretion.
+++++++++++++++
*** Superior Court – citing non-precedential decisions
B. Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b).
