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JOHN N. CONRAD v. ARLAND KEMMERER AND MARTHA V. KEMMERER (01/07/82)

submitted: January 7, 1982.

JOHN N. CONRAD, T/A ARTHUR MURRAY DANCE SCHOOL
v.
ARLAND KEMMERER AND MARTHA V. KEMMERER, APPELLANTS



No. 1560 Philadelphia, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, Lehigh County, at No. 81-C-1039.

COUNSEL

Dennis J. Monaghan, Bethlehem, for appellants.

Frank A. Baker, Allentown, for appellee.

Spaeth, Cavanaugh and Montemuro, JJ.

Author: Montemuro

[ 301 Pa. Super. Page 411]

This case concerns a judgment rendered by default before a district justice on February 10, 1981. Notice of the judgment, dated February 18, 1981, was sent to the defendants, herein the appellants. The notice was apparently received and read on February 20, 1981.

On or about March 10, 1981, a month after the entry of judgment was made, a constable levied upon some of the appellants' property pursuant to a Writ of Execution. On March 19, 1981, the appellants appealed the district court judgment, and on March 20, 1981 they obtained a Rule to Show Cause why the Writ and Execution of Levy should not be set aside.

The lower court found that the appeal was not timely filed, and it denied relief. We affirm that decision.

Appellants argue that their appeal was taken within thirty days of the date notice was sent, pursuant to Pa.R.C.P.J.P. 324, and that as "the quintessential element of due process is notice", the thirty-day appeal period should be

[ 301 Pa. Super. Page 412]

    calculated from the date of notice rather than day of entry of judgment.

We have been unable to find an appellate court case on point, but numerous cases from the common pleas courts support the result reached in the instant matter.*fn1

It is the information recorded by the justice of the peace in her records that fixes the time of judgment and not the written notice to defendant. Annie M. Warner Hospital v. Miller, 53 D. & C.2d 376, 13 Adams LJ 64 (1971). Under Section 5 of the Act of December 2, 1968 P.L. 1137 (42 P.S. ยง 3005), and Pa.R.C.P.J.P. 1002, the 20-day limit for the filing of an appeal from a district justice begins to run from the time of entry of the judgment and not from the date appellant received notice thereof, and such ...


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