J-A26042-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL GLASS,                                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TONY KRAUSE,

                            Appellant                  No. 224 MDA 2015


                 Appeal from the Order Entered January 2, 2015
                 in the Court of Common Pleas of Berks County
                         Civil Division at No.: 14-21276


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED SEPTEMBER 29, 2015

        Appellant, Tony Krause, appeals from the trial court’s order denying

his petition to open his appeal from a judgment by a magisterial district

judge (MDJ).1 After careful review, we affirm.

        The trial court summarized the procedural history as follows:

              On or about October 14, 2014, [the MDJ] entered
        judgment against [Appellant] for rent in arrears owed to
        [Appellee Michael Glass] pursuant to a residential lease.
        [Appellant] filed a timely appeal of the judgment to [the trial]
        court’s prothonotary . . . on November 10, 2014. Significantly,
        however, [Appellant] failed to file proofs of service of the appeal
        on opposing counsel and the [MDJ]. On December 8, 2014[,
        Appellee] filed a praecipe to strike appeal from [MDJ] judgment
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  “An order denying a motion to reinstate an appeal is a final order for
purposes of appeal.” Slaughter, infra, at 1122 n.1 (citation omitted).
J-A26042-15


       for failure to file a proof of service within ten days after filing the
       notice of appeal from the [MDJ] judgment.

(Trial Court Opinion, 3/12/15, at unnumbered pages 1-2) (citations,

quotation marks, and most capitalization omitted).

       On December 18, 2014, Appellant filed a petition to open his appeal.

The trial court denied the petition on January 2, 2015.           On January 30,

2015, Appellant timely appealed.2 While this appeal was pending, Appellee

filed a motion to dismiss. This Court denied the motion without prejudice to

Appellee’s raising the issue before the merits panel. (See Per Curiam Order,

7/15/15).

       Appellant raises the following questions for our review:

       A.   Whether the [trial] court committed an abuse of discretion
       and error of law in summarily [denying] the petition to reinstate
       appeal without applying or analyzing the “good cause” standard
       under [Pa.R.C.P.M.D.J. No.] 1006[?]

       B.   Whether the [trial] court committed an abuse of discretion
       and error [of] law by not considering [Pa.R.C.P.] 126[?]

(Appellant’s Brief, at 4) (most capitalization omitted).3

       Preliminarily, we note, “[a]s all of the issues raised by [A]ppellant are

inextricably intertwined, they will be addressed together.”          Slaughter v.
____________________________________________


2
  The court did not order Appellant to file a Rule 1925(b) statement. The
court entered its Rule 1925(a) opinion on March 12, 2015. See Pa.R.A.P.
1925.
3
 We observe that Appellant filed his brief twenty-five days late, on May 22,
2015, and he has repeatedly missed this Court’s deadlines for filing the
docketing statement. (See Per Curiam Order, 3/17/15; Per Curiam Order,
4/02/15).



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J-A26042-15



Allied Heating, 636 A.2d 1121, 1123 (Pa. Super. 1993), appeal denied,

652 A.2d 839 (Pa. 1994) (footnote omitted).

       Here, Appellant argues that the trial court erred in refusing to reinstate

his appeal.    Specifically, he asserts that he has presented good cause for

failing to comply with the Pennsylvania Rules of Civil Procedure for

Magisterial District Judges No. 1006 and the court should have liberally

construed the rule pursuant to Pennsylvania Rule of Civil Procedure 126.

(See Appellant’s Brief, at 8-14).4 Appellant’s issues lack merit.

       Rule 1006 provides:

             Upon failure of the appellant to [timely file proof of
       service], the prothonotary shall, upon praecipe of the appellee,
       mark the appeal stricken from the record. The court of common
       pleas may reinstate the appeal upon good cause shown.

Pa.R.C.P.M.D.J. 1006.

       It is well-settled that:

             Pursuant to Rule 1006, the trial court may reinstate an
       appeal which has been stricken upon good cause shown. While
       the phrase good cause shown has not been precisely defined,
       this court has interpreted it to require an appealing party to
       proffer some legally sufficient reason for reinstating the appeal.
       [T]he determination of whether good cause has been
       demonstrated is trusted to the trial court’s sound discretion.

Slaughter, supra at 1123 (citations and quotation marks omitted).

       In reviewing the prior version of Rule 1006, this Court explained:

____________________________________________


4
  “[T]rial courts have the power to liberally construe and apply procedural
rules under Pa.R.C.P. 126[.]” Hanni, infra at 1350.



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J-A26042-15


               As the rule clearly states, the trial court is never required
        to reinstate appeals (whereas the prothonotary can be required
        to strike them). The rule provides two levels of discretion. First,
        the trial court has discretion to determine whether there is good
        cause for reinstating the appeal. After examining appellant’s
        excuse for failing to timely file the proofs of service, the trial
        court is not required, but is permitted to reinstate the appeal, in
        its discretion. Considering the weight this rule gives to the trial
        court’s discretion, we should be careful that we do not simply
        substitute our judgment as to whether an appeal should be
        reinstated. Rather, we should uphold any reasonable decision by
        the trial court, even though we might not agree with it
        ourselves.

Hanni v. Penn Warranty Corp., 658 A.2d 1349, 1350-51 (Pa. Super.

1995), appeal denied, 670 A.2d 142 (Pa. 1995) (citations omitted).

        Here, the record reflects that Appellant filed a notice of appeal to the

trial court on November 10, 2014. (See Docket, at 1).           Appellee and the

MDJ received actual notice of Appellant’s appeal.         (See Trial Ct. Op., at

unnumbered page 7).           However, Appellant did not file proofs of service

within the ten-day timeframe, by November 20, 2014.5            On December 8,

2014, Appellee filed a praecipe to strike the appeal and the prothonotary

complied.     (See Docket, at 1).       On December 18, 2014, Appellant filed a

petition to open the judgment, attaching photocopies of the proofs of

service. (See Appellant’s Petition, 12/18/14, at unnumbered pages 4-5).

        In his petition, Appellant concedes that the proofs of service were not

filed on November 20, 2014 “because counsel became ill, and had to leave


____________________________________________


5
    Appellant has not filed proofs of service to date. (See Docket, at 1).



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J-A26042-15



work early . . . [and] was hospitalized from November 23, 2014, to

November 28, 2014.” (Id. at unnumbered pages 1-2 ¶¶ 4-5).

      The trial court aptly explained:

              . . . Though the [c]ourt certainly understands that
      Appellant’s counsel was unable to file the proofs of service
      before November 28, 2014, Appellee’s counsel did not praecipe
      to strike the appeal until December 8, 2014, nearly [one] month
      after the [n]otice of [a]ppeal was filed. Appellant did not then
      file [] [p]roof[s] of service . . . .

            . . . [T]he [c]ourt finds that [A]ppellant has not
      demonstrated good cause here. . . . The [c]ourt acknowledges
      that it has the power to reinstate the appeal for good cause
      shown, at its discretion, but can find no legally sufficient reason
      for doing so here.

            The [c]ourt also acknowledges that it has the discretionary
      authority under [Pa.R.C.P.] 126 to ignore procedural defects so
      long as the parties will not be prejudiced. However, the [c]ourt
      declines to exercise its discretion to reinstate the appeal here.
      Appellant’s counsel could have filed the proofs of service at some
      date after she was released from [the] hospital, or could have
      arranged for another attorney to file it for her as was the case
      with the filing of [the MDJ] judgment appeal to this [c]ourt.

(Trial Ct. Op., at unnumbered pages 6-7) (quotation marks and citations

omitted). Upon review, we agree and conclude that the trial court did not

abuse its discretion.   See Slaughter, supra at 1123; Hanni, supra at

1351. Accordingly, Appellant’s issues do not merit relief.

      Order affirmed.




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J-A26042-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/29/2015




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