COUNTY OF BERKS
IN THE SUPERIOR COURT OF PENNSYLVANIA
COUNTY OF BERKS
In re REMY MACEO-SAUNDERS d/b/a
MACEO-REMY COMMONWEALTH COURT OF THE
COUNTY OF BERKS
Civil Action-Law
Docket Number 21-3274
ORDER
And Now, this day _ of ___, 2021, upon the filing of the Petition for
Writ of Mandamus by REMY MACEO-SAUNDERS d/b/a MACEO-REMY, in accordance
with Section 709 of Act 47 as amended, a hearing on the said Petition is hereby scheduled
before this Court on the _ day of ___,2021 at ::_ in Courtroom _
Any party in interest intending to oppose the relief requested in the Petition for
Issuance of Writ of Mandamus is hereby directed to file any responsive pleading to the
Petition no less than __ days prior to the scheduled hearing. Any responsive pleading to the
said Petition shall be served simultaneously with filing upon the Petitioner’s counsel by hand-
delivery or electronic transmission.
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BY THE COURT:
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IN THE SUPERIOR COURT OF PENNSYLVANIA
COUNTY OF BERKS
REMY MACEO-SAUNDERS d/b/a MACEO-
REMY
Petitioner
VS
PROTHONOTARY OF BERK COUNTY
Respondent
Docket No.
PETITION FOR ISSUANCE OF WRIT OF MANDAMUS
AND NOW, comes REMY MACEO-SAUNDERS d/b/a MACEO-REMY(the
“Petitioner”), by and on his own behalf to Petition this Honorable Court, pursuant to 42 PA
Cons Stat § 5323 to issue a Writ of Mandamus upon the Prothonotary of the Berk County
Commonwealth Court situated at [insert location].
INTRODUCTION
The principal purpose of this Petition is to seek issuance of a writ of mandamus upon
the prothonotary and department of prothonotary directing the prothonotary to (a) time stamp
and record all presentments by the moving party; (b) deliver copies by signature mail to the
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Parties in [insert case number]; apply a policy of flexibility in the recording of presentments by
the moving party; equal treatment of the moving party as all other citizens; provide moving
party full access to the courts without restriction to the moving party and written notification is
required for any complaints warranting restrictive access.
This Petition has been served upon each Respondent.
PROCEDURAL BACKGROUND
The Petitioner filed a Complaint on [insert date] seeking relief against the David
Opperman in the said civil action. Return of service of the summons and complaint was
executed by [insert name] stating that same were served on David Opperman. David
Opperman filed its answer to the complaint on [insert date] and on [insert date] filed Praecipe
for Judgement of Non-Pros. On [insert date], the court entered judgment against the Petitioner.
Lack of notice of intent to file Praecipe for Judgement of Non-Pros
Contrary to statutory requirement, Petitioner was never served with David Opperman’s
notice of intent to file Praecipe for Judgement of Non-Pros as required by 231 PA. Code Rule
237.1. The Rule provides in part that:
“a) No judgment by default shall be entered by the prothonotary unless the
praecipe for entry includes a certification that a written notice of intention to file
the praecipe was mailed or delivered to the party against whom judgment is to be
entered and to his attorney of record, if any, after the default occurred and at
least ten days prior to the date of the filing of the praecipe. . . . “
Further, Petitioner is not a resident of the State of Pennsylvania, as he resides in [enter
state] where his place of residence is situated. As such the David Opperman also had the
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burden to comply with out-of-state service requirements pursuant to 42 PA Cons Stat § 5323,
which in part states that:
“(a) Manner of service.–When the law of this Commonwealth authorizes service
of process outside this Commonwealth, the service, when reasonably calculated to
give actual notice, may be made:
…(3) By any form of mail addressed to the person to be served and requiring a
signed receipt.
(b) Proof of service.–Proof of service outside this Commonwealth may be made
by affidavit of the individual who made the service or in the manner provided or
prescribed by the law of this Commonwealth, the order pursuant to which the
service is made, or the law of the place in which the service is made for proof of
service in an action in any of its courts of general jurisdiction. When service is
made by mail, proof of service shall include a receipt signed by the addressee or
other evidence of personal delivery to the addressee satisfactory to the tribunal.”
Pursuant to the above provision, the David Opperman has failed to demonstrate proper
service of the notice upon the Petitioner. In Rounsley v. DC Ventre & Sons, Inc. 361 Pa.
Superior Ct. 253 (1987) while giving its decision on the necessity of notice of intent to file
Praecipe for Judgement of Non-Pros, the court’s position was clear as “we find that Appellees’
failure to mail proper notice to Appellants and defense counsel resulted in the exact harm that
Rule 237.1 was meant to alleviate.”.
Judgment No Pros was entered herein on [insert date]. Petitioner first learned of the
judgment Non-Pros on [insert date], when he approached the Prothonotary to verify filing of
his amended complaint and was instead informed of the delivered judgment.
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Lack of service by the Prothonotary
Despite earlier follow ups by the Petitioner, prothonotary informed the Petitioner that
there was “no progress” to report about the case. This despite the fact that the Petitioner
submitted all necessary pleadings with the prothonotary for filing. Equally important, the
Petitioner demonstrated service by providing proof of signature when serving documents via
mail to the Defendant and to the prothonotary.
Petitioner has demonstrated willingness to comply and file all necessary documents
required. Nevertheless, the prothonotary has frustrated the efforts of the Petitioner. Petitioner
has attempted to file Writ of Summons several times. Three (3) out of the four (4) attempts
have all been rejected by the Prothonotary. Consequently, the Petitioner has spent over $1,200
as filing costs. On a separate occasion, Prothonotary has required the Petitioner to retain the
services of an attorney in order to be able to proceed with filings, yet the Petitioner is a Pro Se
litigant. Other times, the Prothonotary has simply made it clear that the Petitioners documents
will not be filed. As it stands, the Petitioner is denied access via phone or email. Petitioner is
equally unable to access the online platform to assess the progress of the case.
Lack of access to Court’s electronic filing system
Pursuant to 231 Pa. Code § 205.4, section (a) (1) provides in part that:
“A court by local rule may permit or require electronic filing of legal papers with
the prothonotary and shall specify the actions and proceedings and the legal
papers subject to the rule.”
By virtue of the above provision, the Prothonotary is mandated to receive documents
and cause such documents to be filed electronically. Contrary to the provision and as stated
above, the Prothonotary has either delayed filing of the Petitioner’s documents, or failed to file
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the Petitioner’s documents, with regard to the civil action that was before the Commonwealth
Court of Berk County. Failure of the Prothonotary to perform its function caused the David
Opperman to prepare and file a praecipe for judgment No Pros, a situation that would have
been avoided had electronic filing taken place.
Furthermore, pursuant to 231 Pa. Code § 205.4, section (c) (1) and (c) (2) state as
follows:
(1) The prothonotary when authorized to accept filings by electronic transmission
shall provide electronic access at all times.
(2) The prothonotary may designate a website for the electronic filing of legal
papers. Access to the website shall be available by the attorney identification
number issued by the Court Administrator of Pennsylvania. The court by local
rule shall designate the manner of access to the website for a filing party who is
not an attorney.
In light of section (c) (1), the Prothonotary is required to provide access to all users at
all times. Contrary to this provision, the Petitioner has not been granted such access as
required by statute. Petitioner has mentioned and brought to the attention of the prothonotary
his inability gain electronic access at all times. In fact, the lack of access has, in consideration
of other factors, contributed to the Petitioner’s lack of knowledge that a judgment No Pros was
delivered in the civil action.
Despite such attempts to notify the Prothonotary, no action has been taken to remove
the Petitioner from a state of total darkness.
In light of section (c) (2), the Prothonotary is tasked with providing non-attorney’s with
means of accessing the electronic filing system so as to allow Pro Se Litigants such as the
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Petitioner to gain access to the corridors of justice. Again, as stated above the prothonotary has
failed to provide the Petitioner with the means of accessing the electronic filing system. In
addition to refusal to address the Petitioner’s request for access, the prothonotary has
continually frustrated the Petitioner by demanding the Petitioner retain an attorney in order to
gain access to the electronic filing service. The prothonotary has failed to perform its mandate
as required under section (c) (1) and (2). As a result, the Petitioner has been unable to file the
necessary documents ergo leading to judgement No Pros.
Failure to receive documents submitted by Petitioner for electronic filing
The Petitioner has taken all steps necessary to file the required documents for his case
in the civil action that was before the commonwealth court of Berk County. Each document
was submitted to the prothonotary as required, but no confirmation of filing was ever
communicated. Pursuant to 231 Pa. Code § 205.4, section (c) (3), the prothonotary is required
to give an acknowledgement that a legal document has been received. Such acknowledgement
must indicate the date and time of receipt. This has not been the case for the Petitioner as no
acknowledgement, or other form of notification, was received by the Petitioner pursuant to
section (c) (3), which states:
“The time and date of filing submission and receipt of the legal paper to be filed
electronically shall be that registered by the electronic filing system. The
prothonotary shall provide, through the electronic filing system’s website, an
acknowledgement that the legal paper has been received, including the date and
time of receipt, in a form which can be printed for retention by the filing party.”
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Petitioner has been frustrated by the process. He has taken all necessary steps to
comply with statutory provision and have his documents filed in good time to enable the case
to proceed. unfortunately, Petitioner has stumbled on several road blocks hindering Petitioner’s
path to justice.
Failure to cause service or notify Petitioner of Praecipe for Judgment
Pursuant to 231 Pa. Code § 205.4, section (g), the prothonotary is to cause service of
documents filed by the filing party. Such service may be rendered electronically to the
receiving party and such service must be accompanied by signature or verification to confirm
such service. David Opperman filed Praecipe for Judgement of Non-Pros through the
prothonotary. David Opperman proceeded to pay the requisite filing fees and the prothonotary
accepted the filing.
Following such filing, the prothonotary did not make any attempt to serve the
Petitioner with filed praecipe. Further, each time the Petitioner made attempts to inquire the
status of the case, no information was given to notify the Petitioner that David Opperman had
filed a Praecipe for Judgement of Non-Pros.
Denial of Due Process
To satisfy the constitutional right to due process, a Judgement of No Pros must be
preceded by clear notice to the recipient of the potential consequences of failing to respond to
such notice. Without such notice, the law and the courts will be subject to uncontrollable abuse
and misapplication.
The actions, or lack thereof, of both the prothonotary and David Opperman have
denied the Petitioner his right of due process. It is axiomatic that notice of a praecipe and
opportunity to defend is fundamental due process of law as required by the Constitution. An
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elementary and fundamental requirement of due process in any proceeding which is to be
accorded finality is notice reasonably calculated, under all the circumstances, to apprize
interested parties of the pendency of the action and afford them an opportunity to present their
objections.
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652
(1950). Further, personal service must be obtained in order for a court to exercise personal
jurisdiction over a party; a judgment rendered without personal jurisdiction over a party is
void. Community Ins. Co. v. Sullivan, 1997 Ohio App. LEXIS 2836 (Ohio Ct.App., 1997).
WHY MANDAMUS SHOULD ISSUE
An action in mandamus lies “to compel official performance of a ministerial act or
mandatory duty where there is a clear legal right in the plaintiff, a corresponding duty in the
defendant, and a lack of any other adequate and appropriate remedy at law.” Delaware River
Port Authority v. Thornburgh, 508 Pa. 11, 20, 493 A.2d 1351, 1355 (1985). This Court may
issue a writ of mandamus where the petitioners have a clear legal right, the responding public
official has a corresponding duty, and no other adequate and appropriate remedy at law exists.
see Board of Revision of Taxes[, City of Philadelphia] v. City of Philadelphia, 4 A.3d 610,
627 ( [Pa.] 2010). Moreover, mandamus is proper to compel the performance of official
duties whose scope is defined as a result of the mandamus action litigation. Thornburgh, at
1355A.
As demonstrated above, the prothonotary is under statutory obligation to perform its
functions and duties, and the Petitioner is a beneficiary of such duty as a matter of right. Such
functions and duties are not limited to the special few, but intended for all as anticipated by
231 Pa. Code § 205.4 (c) (2) which provides not only for attorney access, but also for non-
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attorney persons access and the means to gain such access. Failure of the prothonotary to
exercise its mandate will surely lead to a miscarriage of justice as each action brought before
this court, or any other court, must first be received and processed by the prothonotary.
PRAYER FOR RELIEF
Petitioner is accordingly requesting the court issue mandamus and order the
Prothonotary of Berk County to:
- Time stamp and record all presentment by the Petitioner;
- Answer all calls, emails and forms of communication immediately by the
Petitioner. - Apply a policy of flexibility in the recording of presentments by the Petitioner
- Within 24 hours, deliver copies by signature mail the entire file of [insert case]
to the Petitioner; - Apply equal treatment of the Petitioner as all other citizens;
- Provide full access to the courts without restriction to the Petitioner and written
notification is required for any complaints warranting restrictive access.
DATED ___
BY:________________
Remy, Maceo Saunders dba
MACEO-REMY
[insert address]
[insert contact]
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