Law Offices of Popper & Yatvin
A Tangled Procedural Web
Takes Case From State Court to
Federal Court and Back Again.
Popper & Yatvin was retained by John Palko to sue a Philadelphia Police
Officer for false arrest and injuries arising from a dispute with an upstairs
tenant in a building where Palko was the resident manager. Palko had
originally called the police when Deborah Cook, his upstairs neighbor,
was loudly playing gospel music and slamming items against the floor, as
Palko's pre-teen son attempted to sleep. The responding officer ended
up injuring and arresting Palko.
In a fortunate bit of timing, Deborah Cook, commenced the action by filing
a Praecipe to Issue Writ of Summons in the Philadelphia County Court of
Common Pleas on September 20, 2000, under September Term, 2000,
No. 2291, naming our client and the property manager as defendants.
Subsequently Cook filed a complaint.
Popper & Yatvin, counsel for Palko, filed preliminary objections in the
Court of Common Pleas alleging, inter alia, defects in service and
inadequacy of pleading. On September 12, 2001, the Honorable Patricia
McInerney, Judge of the Court of Common Pleas for the First Judicial
District of Pennsylvania, sustained the preliminary objections and ordered
the filing and service of an amended complaint.
On or about September 18, 2001, Cook filed an Amended Complaint. On
September 24, 2001, Popper & Yatvin filed an Answer to the Amended
Complaint with New Matter, as well as a New Matter Counter Claim
asserting Palko’s claims against Cook. Also on September 24, 2001, we
then filed a Joinder Complaint on Palko's behalf, naming P.O. Tonkinson
as a third-party defendant, asserting claims under the federal Civil Rights
Based upon the federal claims, the City Solicitor, counsel for Officer
Tonkinson, removed this matter to United States District Court for the
Eastern District of Pennsylvania. Popper & Yatvin filed a timely motion to
remand the matter to state court, alleging that Tonkinson, a third-party
defendant, could not remove the matter.
On November 12, 2001, we filed a Demand for Default (not default
judgment) under Fed.R.Civ.P. 55. The Clerk of District Court entered a
default against Cook, pursuant to the rule. Thereafter, Cook filed her
answer to the counterclaim, along with a motion for relief from “judgment”.
On January 3, 2002, the District Court issued an order granting Palko’s
motion and remanding the case to the Court of Common Pleas of
Philadelphia. Tonkinson filed an appeal to the Third Circuit Court of
Appeals on January 31, 2002. On February 7, 2002, Popper & Yatvin
filed Palko's motion to dismiss this appeal for lack of jurisdiction. The
motion was referred to the merits panel on April 22, 2002.
Tonkinson did not seek a stay of the remand order in either the district
court or the Court of Appeals. When he learned that the matter was
being called to trial before a Court of Common Pleas arbitration panel,
Tonkinson sought a stay in the Court of Common Pleas, pending
disposition of the instant appeal. A stay was originally granted ex parte,
however, upon reconsideration on the merits, the Court of Common Pleas
denied the motion for a stay.
Popper & Yatvin then filed a motion to transfer the case from arbitration to
the Day Forward 2000 Major Jury Program, which motion was granted by
the Court of Common Pleas on June 6, 2002. A case management order
was entered and while the case was pending in the Court of Common
Pleas, the Court of Appeals dismissed the officer's appeal of the remand
order, for lack of jurisdiction. Thereafter the City settled with Palko, and
Cook withdrew her claims against Palko.
Cook v. Wikler, 320 F.3d 431 (3rd Cir. 2003)