91 Pa. Commw. 451 | Pa. Commw. Ct. | 1985
Opinion by
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 Silver-man (Appellee) for alleged violations of the Philadelphia Btiilding Code. On August 9, 1983, Appellant filed a notice of appeal from the judgment in Appellee’s favor. On August 10, 1983, Appellant for
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: Pa. R.C.P. No. 233, which permits
In support of his Rule 126 argument, Appellant refers us to the following passage from the Pennsylvania Supreme Court decision in Byard F. Brogan, Inc. v. Holmes Electric Protective Co. of Philadelphia, 501 Pa. 234, 460 A.2d 1093 (1983):
A rule which arbitrarily and automatically requires the termination of an action in favor of one party and against the other based upon a non-prejudicial procedural mis-step, without regard to the substantive merits and without regard to the reason for the slip, is inconsistent with the requirement of fairness demanded by the Pennsylvania Rules of ¡Civil Procedure. Rule 126 is not a judicial recommendation which a court may opt tó recognize or ignore.
Id. at 240, 460 A.2d at 1096.
Appellee responds by arguing that since Rule 310(D) states that compliance therewith is a requirement for perfection of an appeal, Appellant’s failure to comply deprived the common pleas court of subject matter jurisdiction over the cause of action. He also contends that Appellant’s failure to comply with the service requirements of Rule 310(D) deprived the common pleas court of personal jurisdiction over Appellee.
Buie 310(D) does not .technically conflict with Pa. B.C.P. No. 233, as the latter is concerned only with papers to be served upon a party under any “Buie of Civil Procedure,” which we interpret to mean any Pennsylvania Buie of Civil Procedure. Nevertheless, we are able to abstract some meaningful guidance by analogy to the Pennsylvania Buies of Appellate Pro
Considering this problem in the context of “perfection” of an appeal, we are cognizant of the Note following Pa. E.A.P. 902, which indicates that the procedure contemplated in Chapter 9 of the Eules of Appellate Procedure was intended, inter alia, to eliminate the “trap” of failure to perfect an appeal by making the notice of appeal self-perfecting. Appellee is correct that failure to comply with the requirements of a statute or a general rule in perfecting an appeal will deprive a court of subject matter jurisdiction. Drozdowski v. Keystone Truck Leasing Co., 277 Pa. Superior Ct. 55, 419 A.2d 657 (1980). We do not believe, however, that failure to comply with a local rule can have a similar effect.
Appellee argues further that Appellant’s failure to comply with Rule 310(D) prevented the court from obtaining jurisdiction over his person. He points out that subsection (B) of Rule 310 requires the filing of a complaint within twenty days after the notice of appeal, and argues that even if the notice of appeal was adequately served, the complaint should have been served with process as required by Pa. R.C.P. No. 1009. Appellee apparently believes that the trial court’s de novo review of matters appealed from Municipal Court entitles him to original process before he can be subjected to the trial court’s jurisdiction.
We are guided in our decision by an additional Eule of Civil Procedure which became effective in July of 1983, just after the Brogan decision and just prior to the decision of the common pleas court in this case. Pa. E.C.P. No. 239(f) provides that “[n]o civil action or proceeding shall be dismissed for failure to comply with a local rule other than one promulgated under Eule of Judicial Administration 1901. ”
Having rejected Appellee’s claims regarding personal and subject matter jurisdiction, we conclude that dismissal for failure to comply with a local rule is exactly what occurred in this case. While the common pleas court .surely would have been within its rights in requiring Appellant to cure a technical defect such
Accordingly, we reverse the decision of the court of common pleas and remand this matter to that court for proceedings on the merits of the appeal.
Order
Now, August 30, 1985, the Order of the Court of Common Pleas of Philadelphia County, No. 1561, August Term, 1983, dated November 4, 1983, is hereby vacated. The court is ordered to reinstate the appeal of the City of Philadelphia, and the record is hereby remanded for proceedings on the merits. Jurisdiction relinquished.
Insofar as Appellee lias raised a question of personal jurisdiction arising out of improper service of the notice of appeal and complaint, an interesting problem is presented. Questions of personal jurisdiction, notice and venue must be raised at the first reasonable opportunity or they are waived. Commonwealth ex rel. Schwarz v. Schwarz, 252 Pa. Superior Ct. 95, 99, 380 A.2d 1299, 1301 (1977).
This policy of the Supreme Court of Pennsylvania is currently embodied in Pa. R.C.P. No. 239(b). The Note following this rule indicates that its purpose is “to implement the unified judicial system under the Constitution of 1968, to facilitate the statewide practice of law under this Court’s general rules, and to promote the further policy that a general rule of civil procedure normally preempts the subject covered.”
We note that the Pennsylvania Superior Court has held to the contrary. See Grossman v. Mitchell, 291 Pa. Superior Ct. 385, 435 A.2d 1280 (1981), interpreting Philadelphia Rule of Civil Procedure
We also note that Section 5571(b) of the Judicial Code, 42 Pa. C. S. §5571 (b), requires only that an appeal be commenced within thirty days.
This is the provision currently governing service of complaints in Municipal Court. When this matter was commenced in 1983, similar provisions appeared in former Philadelphia Municipal Court Rule 107.
Rule of Judicial Administration 1901 directs the common pleas courts and the tribunals below them to provide rules for the terminations of actions which have been inactive for an unreasonable length of time.
Rule 239(f) was neither brought to the trial court’s attention nor argued before this Court.