Trial Court

IN THE SUPERIOR COURT OF PENNSYLVANIA

COUNTY OF BERKS

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.

BY THE COURT:

____________________________

IN THE SUPERIOR COURT OF PENNSYLVANIA

COUNTY OF BERKS

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 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 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.

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 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 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.”

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 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 by 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-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.

CONCLUSION

Petitioner is accordingly requesting the court issue mandamus and order the Prothonotary of Berk County to:

1. Time stamp and record all presentment by the Petitioner;
2. Apply a policy of flexibility in the recording of presentments by the Petitioner
3. Within 24 hours deliver copies by signature mail the entire file of [insert case] to the Petitioner;
4. Apply equal treatment of the Petitioner as all other citizens;
5. 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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