MDJ judgments - certiorari - timely filing of proof of service of appellee and MDJ

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 – 8-26-24 – non-precedential ***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.

 

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***  Superior Court – citing non-precedential decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

 

 

 

 

 

 

mailbox rule

 

Angels of Care v. DHS – Cmwlth. Court – 8-28-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Commonwealth/out/390CD23_8-28-24.pdf?cb=1

 

Pursuant to what has commonly been termed the “mailbox rule,” where there is evidence that an agency mailed a notice to a provider’s last known address that is not returned as undeliverable, that evidence ordinarily will be sufficient to permit a factfinder to find that the notice was, in fact, received the party to whom it was addressed. Douglas v. Unemployment Compensation Board of Review, 151 A.3d 1188, 1191 (Pa. Cmwlth. 2016); Gaskins v. Unemployment Compensation Board of Review, 429 A.2d 138, 140 (Pa. Cmwlth. 1981). “[W]hen a letter has been written and signed in the usual course of business and placed in the regular place of mailing, evidence of the custom of the establishment as to the mailing of such letters is receivable as evidence that it was duly mailed.” Pinnacle Health Hospitals v. Unemployment Compensation Board of Review, 210 A.3d 1127, 1132 (Pa. Cmwlth. 2019) (citation and quotation omitted). When such evidence is present, it will give rise to a presumption that the recipient of the notice received it. Douglas, 151 A.3d at 1191. To defeat the presumption, the recipient must come forward with evidence showing that the notice was not, in fact, received. Id; Pinnacle Health Hospitals, 210 A.3d at 1133. It is well settled that merely denying receipt of an agency determination is not sufficient to defeat the presumption. Id. at 1132; J.A. v. Department of Public Welfare, 873 A.2d 782, 786 (Pa. Cmwlth. 2005). 

 

evidence - authentication - screen shots of texts and emails

Walker v. Walker – Pa. Superior – 8-9-24 – reported, precedential

https://www.pacourts.us/assets/opinions/Superior/out/J-A09010-24o%20-%20106031657276969196.pdf?cb=1

 

In PFA contempt proceeding, court held that victim’s  testimony sufficiently authenticated screen shots of defendant’s texts and emails, which supported a finding of contempt, citing Pa. R. E. 901 (b)(11)(B).

 

 

 

default judgment - opening - citing meritorious preliminary objection

Lin v. Bernard – Pa. Super. – 8-12-24 – non-precedential***

 

https://www.pacourts.us/assets/opinions/Superior/out/J-A07028-23m%20-%20106033356277194969.pdf?cb=1

 

Pursuant to Pa. R.C.P. 237.3, a court “must grant a petition to open a default judgment where the petitioner attaches one or more preliminary objections.” In this contract case, the plaintiff didn’t plead whether the contract was oral or written, and if written, failed to attached the writing.

 

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*** Superior Court – citing non-precedential decisions

https://www.pacodeandbulletin.gov/Display/pacode?file=/secure/pacode/data/210/chapter65/s65.37.html&d=reduce

B.  Non-precedential decisions filed after May 1, 2019, may be cited for their persuasive value, pursuant to Pa.R.A.P. 126(b). 

 

 

 

Home Improvement Consumer Protection Act - oral notice of cancellation is effective

Commonwealth v. Gillece Services - Cmwlth. Court - 7-3-24 - reported case

https://www.pacourts.us/assets/opinions/Commonwealth/out/861CD23(2)_7-3-24.pdf?cb=1

 

In a case of  first impression, the court held that a home improvement contractor must honor an oral  cancellation request from a customer. The written notice requirement under the UTP/Consumer Protection Law, 73 P.S. sec. 201-1 et seq.,  does not apply to the Home Improvement Consumer Protection Act, 73 P.S. sec. 517.1, et seq.