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CITY PHILADELPHIA v. LOUIS SILVERMAN (08/30/85)

decided: August 30, 1985.

CITY OF PHILADELPHIA, APPELLANT
v.
LOUIS SILVERMAN, APPELLEE



Appeal from the Order of the Court of Common Pleas of Philadelphia County in the case of City of Philadelphia v. Louis Silverman, No. 1561 August Term, 1983.

COUNSEL

Barbara S. Gilbert, with her, Stephen Bosch, Stephen P. Ulan, Chief Assistant City Solicitor, and Barbara W. Mather, City Solicitor, for appellant.

Leon W. Silverman, for appellee.

Judges MacPhail, Doyle and Palladino, sitting as a panel of three. Opinion by Judge Doyle.

Author: Doyle

[ 91 Pa. Commw. Page 452]

The City of Philadelphia (Appellant) seeks our review of an order of the Court of Common Pleas of Philadelphia County which denied Appellant's petition to reinstate its appeal to common pleas court from an adverse judgment which was entered in Philadelphia Municipal Court on July 28, 1983.

This matter arises out of an enforcement proceeding initiated in Municipal Court against Louis Silverman (Appellee) for alleged violations of the Philadelphia Building Code. On August 9, 1983, Appellant filed a notice of appeal from the judgment in Appellee's favor. On August 10, 1983, Appellant forwarded

[ 91 Pa. Commw. Page 453]

    a copy of the notice and a code enforcement complaint to Appellee by regular first class mail at his office address in Philadelphia. On September 9, 1983, counsel for Appellee entered an appearance in the common pleas court and filed a praecipe requesting the prothonotary of that court to dismiss the appeal for failure to file a timely proof of service according to Philadelphia Rule of Civil Procedure 310(D). The appeal was accordingly stricken. Appellant filed the affidavit of service on September 15, 1983, and on September 27, 1983, filed a petition to reinstate its appeal. On November 4, 1983, following an argument before the court, the petition was denied.

Rule 310(D) provides as follows:

(D) A copy of the Notice of Appeal shall be filed upon the Deputy Court Administrator of the Municipal Court and shall be served by certified mail or personally upon other parties in interest within twenty (20) days; and Proof of Service shall be filed with the Prothonotary within ten (10) days thereafter. If the Appeal be not thus perfected, upon praecipe of appellee, the Prothonotary shall mark the appeal 'stricken from the record.'

The trial court based its denial of Appellant's petition on the mandatory language appearing in the last sentence of this rule, as well as on his interpretation of the rule as a notice provision designed to ensure due process. Acknowledging that the facts in this case indicated that Appellee did have actual notice that an appeal had been taken, the court stated that nevertheless, due process requirements must not be applied on an ad hoc basis.

Appellant argues that Rule 310(D) is inconsistent with two provisions of the Pennsylvania Rules of Civil Procedure: ...


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