MOTION TO SET ASIDE

JUDGMENT OF NON-PROS

IN THE SUPERIOR COURT OF PENNSYLVANIA

COUNTY OF BERKS

PETITIONER’S  231 PA. CODE RULE 237.3 (a) MOTION TO SET ASIDE JUDGMENT OF NON-PROS

Petitioner, REMY MACEO-SAUNDERS d/b/a MACEO-REMY, in proper person, pursuant to 231 PA. CODE RULE 237.3 (a), hereby moves the Court for an order staying execution of the Judgment of Non-Pros entered herein for the reason that Petitioner was never served with due notice demonstrating intent to file Praecipe for Judgement of Non Pros herein and based upon the authorities set forth below. Petitioner requests the Judgment be set aside pending appeal of the Judgment. Petitioner further respectfully requests pursuant to 231 PA. CODE RULE 237.3 that this Court stay the execution of said Judgment pending hearing and determination of this Petition.

DATED _______________

BY:____________________________

Remy, Maceo Saunders dba

MACEO-REMY

[insert address]

[insert contact]

MEMORANDUM AND POINTS OF AUTHORITY

The Complaint herein was filed on [insert date]. Return of service of the summons and complaint was executed by [insert name] stating that same were served on Defendant. Defendant 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.

However, Petitioner was never served with Defendant’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 Defendant also had the 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 Defendant 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 complaint and was instead informed of the delivered judgment. 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.

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.

CONSTITUTIONAL DUE PROCESS REQUIRES NOTICE

It is axiomatic that notice of a praecipe and opportunity to defend is fundamental due process of law as required by the Constitution. An 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 defendant is void. Community Ins. Co. v. Sullivan, 1997 Ohio App. LEXIS 2836 (Ohio Ct.App., 1997).

CONCLUSION

Petitioner is accordingly entitled to an order staying Judgment No Pros entered herein for the reason that Petitioner was never served with notice of intent to file Praecipe for Judgement of Non-Pros herein. Petitioner also requests the Execution of the Judgement be stayed pending the disposition of the Petition and the intended Appeal by the Petitioner.

DATED _______________

BY:____________________________

Remy, Maceo Saunders dba

MACEO-REMY

[insert address]

[insert contact]

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