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11/17/97 BOROUGH DOWNINGTOWN v. THOMAS J. WAGNER

November 17, 1997

BOROUGH OF DOWNINGTOWN
v.
THOMAS J. WAGNER, APPELLANT



Appealed From No. 94-08532. Common Pleas Court of the County of Chester. Judge SUGERMAN.

Before: Honorable Dan Pellegrini, Judge, Honorable James R. Kelley, Judge, Honorable Charles P. Mirarchi, Jr., Senior Judge. Opinion BY Judge Kelley. Judge Leadbetter did not participate in the decision in this case.

The opinion of the court was delivered by: Kelley

OPINION BY JUDGE KELLEY

FILED: November 17, 1997

Thomas J. Wagner appeals from an order of the Court of Common Pleas of Chester County (trial court) granting the Borough of Downington's (borough) petition to strike an appeal by Wagner of the judgment entered by the district Justice in the matter of Borough of Downingtown v. Thomas J. Wagner, No. CV-299-94. We affirm.

The issues raised in this appeal require this court to construe the Pennsylvania Rules of Civil Procedure Governing Actions and Proceedings before District Justices, particularly Pa.R.C.P.D.J. No. 1004. Rule 1004 governs the filing of complaint or praecipe on appeal and appeals involving cross-complaints. Rule 1004 provides as follows:

A. If the appellant was the claimant in the action before the district Justice, he shall file a complaint within twenty (20) days after filing his notice of appeal.

B. If the appellant was the defendant in the action before the district Justice, he shall file with his notice of appeal a praecipe requesting the prothonotary to enter a rule as of course upon the appellee to file a complaint within twenty (20) days after service of the rule or suffer entry of a judgment of non pros.

C. When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within thirty (30) days after the date on which the appellant served a copy of his notice of appeal upon the appellee.

I. FACTS

On July 21, 1994, the borough filed a complaint against Wagner with the district court for unpaid sewer and refuse charges and for late fees and penalties related thereto. *fn1 The complaint was docketed at No. CV-299-94.

On August 19, 1994, Wagner filed a cross-complaint against the borough alleging that the borough's collection for late fees and penalties was not authorized by an enabling statute and was usurious and unconstitutional. Wagner sought damages against the borough for past late charges and penalties assessed and paid by Wagner in the amount of $80.77. Wagner's cross-complaint was consolidated with the borough's complaint docketed at No. CV-299-94.

On August 30, 1994, after hearings on both complaints, the district Justice entered two separate judgments: one in favor of the borough on its complaint for $58.42 and the other in favor of the borough and against Wagner on Wagner's cross-complaint.

On September 29, 1994, Wagner filed a single notice of appeal with the trial court. The notice of appeal indicated that Wagner was appealing from both matters before the district Justice -- Borough of Downingtown v. Thomas J. Wagner and Thomas J. Wagner v. Borough of Downingtown. The notice of appeal did not contain a praecipe to enter rule upon the borough to file a complaint. Wagner's appeal was docketed with the prothonotary and Wagner paid the $55.25 fee for filing a single notice of appeal.

On October 19, 1994, Wagner filed a complaint with the trial court which was based on his cross-complaint filed with the district court. Wagner also requested that the prothonotary issue a rule to file a counterclaim upon the borough which the prothonotary refused to issue. ...


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