Submitted: December 20, 2013
Archie Simmons, Self-represented, Plaintiff-Below/Appellant
Andres Gutierrez de Cos, Esquire Attorney for Defendant-Below/Appellee
Honorable Carl C. Danberg, Judge
Plaintiff-Below/Appellant Archie Simmons ("Simmons") brings this Motion for Reargument of the Court's decision rendered July 5, 2013, dismissing Simmons' appeal. A hearing on the motion was held on November 25, 2013, and the Court heard oral argument from both parties. At the conclusion of the hearing, the Court reserved decision, and ordered supplemental briefing. This is the Court's Final Decision and Order.
Facts & Relevant Procedural History
Simmons brought this appeal from the Justice of the Peace Court on January 24, 2013. On March 19, 2013, Defendant-Below/Appellee Luis Oppenheimer ("Oppenheimer") filed a motion to require Simmons to obtain counsel, on the grounds that Simmons, pro se, was acting on behalf of corporation, Star Property Management, LLC. On April 8, 2013, Kevin William Gibson, Esq., served Oppenheimer's counsel with his entry of appearance on behalf of Simmons.
On April 8, 2013, the Court held a hearing on the Motion to Obtain Counsel. The Court determined that Star Property Management, LLC, was not a party to the present action, nor was it a party to the related action in the Justice of the Peace Court. Accordingly, Simmons was representing only himself, not a corporation and, as such, he was not required to be represented by an attorney. Oppenheimer's motion to obtain counsel was denied.
On April 8, 2013, Oppenheimer filed a motion to dismiss the appeal. A hearing on the motion was held on April 26, 2013. Simmons failed to appear at the hearing. On May 28, 2013, the Court entered an order requiring Simmons to file a response to the Motion to Dismiss within 15 days, admonishing that failure to do so would result in a dismissal of the appeal. On July 5, 2013, having received no response from Simmons, the Court entered an order dismissing the appeal.
On August 6, 2013, Simmons filed this Motion for Reargument, requesting that the Court reconsider its July 5, 2013 order dismissing the appeal. A hearing on the motion was held on------- November 25, 2013.
At the hearing, Simmons argued that he never received notice of the Motion to Dismiss, nor did he receive the Court's May 28th order. Mr. Gibson was present at the hearing. He explained to the Court that within a week of entering his appearance, the Court ordered that Simmons need not be represented by an attorney. Mr. Gibson said that he did not formally withdraw as counsel because, based on that order, he was of the understanding that he did not need to appear. Counsel for Oppenheimer presented oral argument in opposition of the motion, and made a request for attorney's fees. At the conclusion of the hearing, the Court reserved decision and ordered supplemental briefing from the parties.
On December 6, 2013, Simmons filed a document captioned "Response to Motion to Dismiss Appeal and Counter motion." In his response, Simmons requests relief from judgment pursuant to Court of Common Pleas Civil Rule 60, on the basis of clerical error and excusable neglect. Simmons argues, inter alia, that he did not receive the Court's May 28, 2013 order to respond to Oppenheimer's Motion to Dismiss and, furthermore, the order does not specify which motion to dismiss required a response. Simmons also contends that he is entitled to relief under CCP Civ. R. 61. Simmons argues that refusal to grant his appeal would be "inconsistent with substantial justice."
Motions for Reargument are governed by Court of Common Pleas Civil Rule 5 ...