NO. 371 PITTSBURGH, 1981, Appeal from the Order of the Court of Common Pleas, Civil Action-Law, of Westmoreland County, at No 6071 of 1980.
John M. Means, Pittsburgh, for appellant.
Donald P. Tarosky, Greensburg, for appellees.
Cavanaugh, Montemuro and Van der Voort, JJ.
[ 305 Pa. Super. Page 537]
On June 30, 1980, a Justice of the Peace entered a judgment in assumpsit for $872.50, plus costs, in favor of plaintiffs-appellees, Quarato and against defendant-appellant, Facelifters, Ltd. Facelifters appealed to the Westmoreland County Court of Common Pleas on July 11, 1980. On July 14, 1980, Notice of Appeal and a Rule to File a Complaint were filed with the Prothonotary, together with an affidavit by appellant's counsel stating that he had served appellees with the Notice of the Appeal and the Rule to File a Complaint by certified or registered mail, "sender's receipt attached hereto". In fact, no sender's receipt was attached to the Notice of Appeal and the Rule to File a Complaint.
The receipts were attached to a praecipe for judgment for failure to file a complaint, filed by Facelifters, on September 3, 1980. On September 11, 1980, appellees filed a praecipe to strike the initial appeal because of appellant's failure to comply with Rule 1005(b) of the Rules of Civil Procedure for Justices of the Peace. Appellant's counsel filed a Motion to Reinstate Appeal on September 17, 1980 averring (1) that the appellant had complied with the rules, and (2) that the striking of the appeal after entry of the non-pros was invalid. Appellees filed an answer to this motion. The court sitting en banc heard arguments, and on March 19, 1981, dismissed the Motion to Reinstate Appeal. By praecipe the same day judgment was entered on the court's order.
Judge Marker's opinion states his belief that the court is bound to dismiss the Motion to Reinstate the Appeal because of appellant's failure to comply with Rule 1005(b) and Rule 1081, Pennsylvania Rule of Civil Procedure for Justices of the Peace. He relies on a similar ruling by Judge Klein in Voynik v. Davidson, 34 Beaver 98, 69 D. & C. 2d 267 (1975). Both Judges Klein and Marker concede that "the result
[ 305 Pa. Super. Page 538]
appears to be harsh" but feel duty bound to enforce a rule of the Supreme Court.*fn1
Rule 1005(b) Pa.R.C.P.J.P. required appellant to file "proof of service" of the notice of appeal and of the rule within five days after the filing of the notice of appeal. Rule 1001 defines "proof of service" as: "a sworn written statement that service was made by personal service or by certified or registered mail, with the sender's receipt for certified or registered mail attached thereto if service was made by mail. " (Emphasis supplied) Technically counsel's affidavit did not fully comply with Rule 1001 as the sender's receipt was not attached.
There is no serious question that the appellees received notice that the appeal had been taken. In addition, there are in the record copies of two receipts dated July 15, 1980, signed by Dora Quarato, presumably evidencing receipt of (a) the Notice of Appeal and (b) the Rule to File a Complaint. These receipts were attached to a praecipe for judgment ...