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COMMERCIAL CREDIT CORPORATION v. RUTH ANN CACCIATIORE (05/24/85)

filed: May 24, 1985.

COMMERCIAL CREDIT CORPORATION, APPELLANT,
v.
RUTH ANN CACCIATIORE, A/K/A RUTH ANN LEWIS



Appeal from the Order of the Court of Common Pleas, Civil Division, of Delaware County at No. 81-14909.

COUNSEL

William L. McLaughlin, Paoli, for appellant.

Beck, Popovich and Trommer, JJ.*fn*

Author: Popovich

[ 343 Pa. Super. Page 431]

This is an appeal from the order of the Court of Common Pleas of Delaware County (per Judge Levy) dismissing the appellant's, Commercial Credit Corporation's, complaint in assumpsit against Ruth Ann Cacciatiore, a/k/a Ruth Ann Lewis. We affirm.

[ 343 Pa. Super. Page 432]

The facts reveal that on October 13, 1981, the appellant filed a complaint alleging that the appellee owed it a balance of $5,993.55 on monies loaned October 6, 1976.

On October 19, 1981, and August 2, 1983, the Sheriff was unsuccessful in serving the appellee. On both occasions, the Sheriff's return read that the appellee had either moved or no longer lived at the address where the service of process was attempted.

It appears of record that, prior to the second unsuccessful service of the complaint, counsel for the appellant filed a praecipe with the "Office of Judicial Support" seeking reinstatement of the complaint. Thereafter, service of the complaint was effectuated and prompted the filing of a "Motion For Dismissal Pursuant To Delaware County Rule of Court No. 212" by counsel for the appellee. The Rule provides:

In all actions begun on or before December 31, 1981, a certificate of readiness must be filed not more than 240 days after the action is commenced. A civil action is commenced when the praecipe for writ or complaint is filed. Any party may certify a case ready for trial prior to the expiration of the 240 day deadline.

In response, counsel for the appellant filed an answer and new matter alleging, as is relevant herein, that:

12. Counsel for the [appellant] for the purpose of this rule, has always construed to [sic] rule to mean that the 240 day period commences when an unserved complaint is reinstated and service later-made [sic] of the reinstated complaint.

According to the appellant's brief, with which no one takes issue, no briefs were submitted by either side nor did the trial court hear argument before granting the dismissal motion. This appeal ensued, and, thereafter, a "concise statement of the matters complained of in appeal" was ordered filed by the trial court. (See Appellant's Brief at 5) In compliance therewith, the appellant posits ...


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