Opinion
858 EDA 2022 J-S31017-22
03-08-2023
PETER KREHER AND LAUREN KOGEN v. CAROL MOORE, CLASS HARLAN, INC., INDIVIDUALLY AND/OR A/K/A AND/OR D/B/A CLASS HARLAN REAL ESTATE, COMPASS PENNSYLVANIA, LLC, INDIVIDUALLY AND/OR A/K/A AND/OR D/B/A FLO SMERCONISH REAL ESTATE, LLC, JAY GINSBURG, INDIVIDUALLY AND/OR A/K/A AND/OR D/B/A THE JAY GINSBURG GROUP AND/OR A/K/A AND/OR D/B/A THE JAY GINSBERG GROUP AT ADDISON WOLFE REAL ESTATE, AND MANCUSO AND MAZZELL, LLC, INDIVIDUALLY AND/OR A/K/A AND/OR D/B/A ADDISON WOLFE REAL ESTATE AND/OR A/K/A AND/OR D/B/A THE JAY GINSBERG GROUP AT ADDISON WOLFE REAL ESTATE AND JOHN DOE/JANE DOE/ABC CORP. APPEAL OF: CAROL MOORE
Joseph D. Seletyn, Esq.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered February 22, 2022 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2021-01126
Joseph D. Seletyn, Esq.
BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E. [*]
MEMORANDUM
NICHOLS, J.
Appellant Carol Moore appeals from the February 22, 2022 order denying Appellant's petition to open and set aside the default judgment entered against her in the amount of $450,000.00, and in favor of Appellees Peter Kreher and Lauren Kogen. After review, we affirm in part, reverse, in part, and remand for further proceedings consistent with this memorandum.
An order denying a motion to open, vacate, or strike off a judgment is immediately appealable. See Pa.R.A.P. 311(a)(1) (interlocutory appeals as of right).
The trial court summarized the relevant facts and procedural history of this matter as follows:
This case arises out of a slip and fall incident. On March 7, 2019, Plaintiff, Peter Kreher (hereafter "Appellee") was walking in the parking lot area on the premises of the property known as 101-103 Mechanics Street, Doylestown, Pennsylvania, when due to an alleged accumulation of snow and ice, Appellee slipped and fell resulting in alleged injuries to Appellee.
Appellee commenced this action by filing a complaint on March 2, 2021. Pertinent to the instant appeal, in said Complaint Appellee avers that [Appellant], along with the other named defendants, were agents, servants, workmen, representatives, and/or employees of their joint venture/business which entailed the owning and operation of the above referenced property. On April 7, 2021, Appellee filed an affidavit of service attesting that service of the complaint on [Appellant] was effectuated via Federal Express two (2) day service at [Appellant's] address of 240 Pine Valley Road SE, Marietta, Georgia, 30067. Proof of service was attached to the affidavit in the form of the Federal Express detailed tracking sheet that shows said [the] complaint was delivered on Thursday, March 11, 2021 at 10:[07] a.m. On April 7, 2021, Appellee filed a praecipe to reinstate the complaint. On April 14, 2021, Appellee filed another praecipe to reinstate the complaint. On April 27, 2021, Michael H. Fienman, Esq., entered his appearance as counsel of record for [Appellant].
Appellant . . . never filed any response to the complaint and as such on May 7, 2021, Appellee filed a praecipe for default judgment against [Appellant] for $450,000.00. The praecipe was signed by the Bucks County Prothonotary. Said praecipe included a Pa.R.C.P. 236 notice, also signed by the Bucks County Prothonotary. Also attached to the praecipe was a copy of the Notice to Appellant . . . dated April 7, 2021, that Appellee would seek a default judgment and that Appellant had ten (10) days to respond to the complaint. As the docket and court file reflects, no responsive pleading by Appellant was filed upon receipt of said notice on April 7, 2021, and as such the default judgment against Appellant was entered on May 7, 2021.
On May 21, 2021, Appellant filed a petition to open and set aside the default judgment, arguing that the default judgment should be opened because Appellee never properly effectuated service of the complaint on Appellant because Appellee did not require nor obtain a "signed receipt by [Appellant]" allegedly in violation of Pa.R.C.P. 403, Pa.R.C.P. 404, and 42 Pa.C.S. § 5323. On June 3, 2021, Appellee filed response in opposition to the motion to lift default, which argues that Appellant did receive actual notice of the complaint and actual notice of the intent to seek a default judgment which included a copy of the complaint. Furthermore, Appellee's response also argues that in the time after Appellant's counsel entered his appearance but before the default judgment was entered, Appellee's counsel was in repeated contact and conversation with Appellant's counsel about allowing Appellant time to filing a responsive pleading, such as preliminary objections, before Appellee would seek the default judgment, but that Appellant's counsel refused to respond because it was counsel's position that service was improper.
On November 11, 2022, Mr. Fienman, Esq., filed a motion to withdraw as counsel citing irreconcilable differences with [Appellant] and good cause to withdraw in compliance with the grounds set forth in Pennsylvania Rule of Professional Conduct 1.16(b). On January 27, 2022, this court issued a rule to show cause as to why counsel's motion to withdraw should not be granted. On February 17, 2022, this court issued an order denying Appellant's motion to open and [set] aside the default judgment. On February 22, 2022, Mr. Fienman filed a motion to make rule absolute arguing that he should be permitted leave to withdraw because no party, including [Appellant] had filed a response to his motion to withdraw. On March 14, 2022, this court issued an order granting Mr. Fienman leave to withdraw as counsel
for [Appellant]. On March 16, 2022, Mr. Fienman, Esq., filed a praecipe for withdrawal of appearance as counsel for Appellant.Trial Ct. Op., 5/31/22, at 1-3.
The February 17, 2022 order denying Appellant's motion to open and set aside the default judgment was entered on the trial court docket and served on the parties on February 22, 2022. On March 18, 2022, Appellant filed a timely appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
See Pa.R.A.P. 108(a)(1) (providing that the date of entry of an order is the day the clerk of court mails or delivers copies of the order to the parties); see also Pa.R.C.P. 236.
On appeal, Appellant raises the following issues:
Whether the trial court committed an error of law or abused its discretion in denying [Appellant's] petition to open and set aside the default judgment (the "petition") in its order dated February 17, 2022, which was entered on the docket on February 22, 2022, for the following reasons:
1. Because oral argument on the petition was specifically requested by Appellant and was denied by the trial court, there is no transcript or opinion relating to the court's order denying the petition and the reasons for the trial court's order are vague and/or not discernable from the record.
2. Because Appellant alleged in her petition all of the three prongs necessary for opening the default judgment 1) a prompt filing of a petition to open the default judgment; 2) a meritorious defense; and 3) a reasonable excuse or explanation for her failure to file a responsive pleading, which required the trial court to open the default judgment.
3. Because Appellant alleged in her petition significant irregularities or fatal defects apparent in the record to render the default judgment invalid (because [Appellees] failed to properly serve original process on Appellant because Appellant lives out of state and a signed return receipt was not obtained), which required the trial court to strike the default judgment, and the trial court did not have discretion not to do so.
4. Because there was no assessment of damages hearing related to the default judgment and the default judgment was entered against Appellant in the amount of $450,000.00, a figure that was pulled out of thin air and is only referenced in the default judgment papers themselves, not in the complaint or otherwise determined at an assessment of damages hearing.Appellant's Brief at 6 (formatting altered).
Our standard of review regarding the denial of a petition to open a default judgment is as follows:
[We must] examine the entire record for any abuse of discretion, reversing only where the trial court's findings are inconsistent with the clear equities of the case. Moreover, this Court must determine whether there are equitable considerations which require that a defendant, against whom a default judgment has been entered, receive an opportunity to have the case decided on the merits. Where the trial court's analysis was premised upon record evidence, where its findings of fact were deductions from other facts, a pure result of reasoning, and where the trial court made no credibility determinations, this Court may draw its own inferences and arrive at its own conclusions. Finally, where the equities warrant opening a default judgment, this Court will not hesitate to find an abuse of discretion.Reid v. Boohar, 856 A.2d 156, 159 (Pa. Super. 2004).
A petition to open a judgment is an appeal to the equitable powers of the court. It is committed to the sound discretion of the hearing court and will not be disturbed absent a manifest abuse of that discretion. Ordinarily, if a petition to open a judgment is to be successful, it must meet the following test: (1) the petition to open
must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defense[.]
We need not, however, engage in the above analysis if the party seeking to open the judgment has not received valid service or notice of the proceedings. If the plaintiff has failed to effectuate valid service and if the defendant lacks notice of the proceedings against him, the court has no jurisdiction over the party and is powerless to enter judgment.Century Sur. Co. v. Essington Auto Center, LLC, 140 A.3d 46, 53-54 (Pa. Super. 2016) (citations omitted and formatting altered).
Additionally, we note that "[a] petition to strike a judgment operates as a demurrer to the record. As such, it is not a matter calling for the exercise of discretion." Williams v. Wade, 704 A.2d 132, 134 (Pa. Super. 1997) (citation omitted). "A petition to strike a judgment may be granted only where a fatal defect in the judgment appears on the face of the record." Id.
In her first three issues, Appellant argues: 1) the reasons for the trial court's order are vague and not discernable from the record; 2) she satisfied the requirements to open a default judgment; and 3) there is a fatal defect in the record because Appellant failed to effectuate service of process. Appellant's Brief at 14-28.
After review of the briefs of the parties, the certified record, and relevant legal authority, we conclude that the trial court's opinion accurately and thoroughly addresses each of these issues. See Trial Ct. Op., at 5-15. Accordingly, with respect to Appellant's first three issues, we discern no error of law or abuse of discretion in the trial court's order entered on February 22, 2022, and we affirm on the basis of the trial court opinion. See id.
In the Dissenting Memorandum, our learned colleague contends that the trial court erred in concluding that service was proper, and would, therefore, reverse the trial court's order denying Appellant's petition to strike. See Dissenting Mem., at 2-7. We respectfully disagree. As the trial court noted, Appellant's counsel entered his appearance for Appellant on April 27, 2021, prior to entry of the default judgment. See Trial Ct. Op., 5/31/22, at 2. The trial court also noted that service of process outside of Pennsylvania will be deemed proper where service comports with the requirements of that jurisdiction. See id. at 9 (citing Pa.R.C.P. 404(4)). As stated, Appellees served Appellant in the state of Georgia. Under Georgia law, a party waives defects in service where counsel enters a general appearance in a court having subject matter jurisdiction. See Brown v. Fokes Properties 2002, Inc., 657 S.E.2d 820, 821 (Ga. 2008). Where a court otherwise has subject matter jurisdiction, this waiver "confers jurisdiction of his person regardless of the fact that process was not served on him or that the service may have been defective." Id. Georgia caselaw provides that the entry of appearance must be in a court with subject matter jurisdiction; it does not state that the entry of appearance must be in Georgia. See id. Here, the court having subject matter jurisdiction is in Bucks County, Pennsylvania, where Appellant's counsel entered his appearance on April 27, 2021, prior to the entry of the default judgment. Bearing in mind these principles, Appellant waived defects to service in Georgia under Georgia law. As such, the trial court correctly concluded that there was no defect as to service, and, therefore, there is no fatal defect supporting a petition to strike.
In Appellant's fourth issue, she asserts that the trial court abused its discretion or committed an error of law in awarding Appellees $450,000.00 in damages. Appellant's Brief at 28-29. Appellant contends that Appellees' complaint did not contain a "sum certain," there is no support for an award of $450,000.00, and there was no assessment of damages. Id. at 29-31.
Appellees respond that this issue is waived due to Appellant's failure to raise it before the trial court. Appellees' Brief at 35-36. Appellees contend that Appellant raised this issue for the first time in her Rule 1925(b) statement. Id. at 36. Appellees argue that issues, which are not presented to the trial court, cannot be raised for the first time in a Rule 1925(b) statement. See id. (citing Cabot Oil v. Speer, 241 A.3d 1191, 1196 (Pa. Super. 2020) (stating "[a]ppellants cannot raise issues for the first time in a Rule 1925(b) statement").
Similarly, the trial court found this issue waived because Appellant did not raise it in her petition to open and set aside default judgment. See Trial Ct. Op., at 16 (citing Pa.R.A.P. 302(a) (stating "Issues not raised in the trial court are waived and cannot be raised for the first time on appeal."). However, the trial court continues:
now that the issue of assessment of damages has been raised, and upon this court's independent review of the record with regard to the default judgment entered by the prothonotary, this court is now concerned that the default judgement perhaps should have been entered only as to liability against Appellant and an assessment of damages hearing should have been held.Id. at 16-17 (formatting altered).
After careful review of the record, we conclude that the amount of damages was an issue before the trial court. In the complaint, Appellees state above the caption: "This is a major jury case assessment of damages hearing Required." Appellees' Compl., 3/2/21, at 2. Moreover, we note that "default judgments generally are governed by the Pennsylvania Rules of Civil Procedure and are entered by prothonotaries and without judicial involvement." EMC Mortg., LLC v. Biddle, 114 A.3d 1057, 1069 n.8 (Pa. Super. 2015). Upon entry of a default judgment:
The prothonotary shall assess damages for the amount to which the plaintiff is entitled if it is a sum certain or which can be made certain by computation, but if it is not, the damages shall be assessed at a trial at which the issues shall be limited to the amount of the damages.Pa.R.C.P. 1037(b)(1).
Upon review, we agree with Appellant that there was no sum certain, and the prothonotary lacked the authority to assess damages and enter an award of $450,000.00. See Evans v. Allied Discount Co., 184 A.2d 345, 347 (Pa. Super 1962) (concluding that the prothonotary has authority to award damages where the amount is a sum certain or can be made certain by computation, otherwise "the damages shall be assessed at a trial at which the issues shall be limited to the amount of damages."); see also Oguejiofor v. Sgagias, 2022 WL 4589773, at *5 (Pa. Super. 2022) (noting that while the prothonotary was permitted to enter default judgment, it lacked the authority to assess damages); Pa.R.C.P. 1037(b)(1).
For these reasons, we conclude that although the prothonotary properly entered default judgment, the prothonotary lacked the authority to assess damages and the portion of the judgment awarding damages must be stricken. See Oguejiofor, 2022 WL 4589773 at *5. Accordingly, we vacate that part of the judgment awarding Appellees $450,000.00, and we remand for a separate trial as to damages only. See King v. Fayette Aviation, 323 A.2d 286, 226 (Pa. Super. 1974) (concluding that although default judgment should not have been opened, where the amount of damages depended upon reasonable value of an aircraft and its salvage value, the damages were not a "sum certain," and a separate trial on damages was necessary).
In conclusion, we conclude that Appellant is due no relief on her first three issues, and we reach this conclusion based on the trial court opinion. See TCO. However, with respect to the amount of damages, we vacate the that portion of the judgment awarding Appellees $450,000.00 and remand for a trial on damages only.
Judgment affirmed in part and reversed in part. Case remanded for further proceedings consistent with this memorandum. Jurisdiction relinquished.
President Judge Emeritus Stevens joins the memorandum.
Judgment Entered.
DISSENTING MEMORANDUM
BOWES, J.
I respectfully dissent. Upon review, I cannot agree with the learned Majority's conclusion that Appellant received effective service of original process. Since I find the lack of proper service apparent and dispositive, I would reverse the order denying Appellant's petition to strike.
I note that Appellant's counsel at the time misnamed Appellant's petition to open and petition to strike as "Defendant's Petition to Open and Set Aside the Default Judgment." See Defendant's Petition to Open and Set Aside the Default Judgment, 5/21/21 (capitalization altered). Nonetheless, it is apparent that counsel purported to file a petition to open and/or strike and merely misnamed the striking portion. See id. at 8 (asking that the default judgment "be opened, vacated, and set-aside, based on the lack of proper original service of process, and Plaintiffs' claims dismissed").
This Court's standard of review regarding appeals from petitions to strike is de novo and our scope of review is plenary. See Penn Nat'l Mut. Cas. Ins. Co. v. Phillips, 276 A.3d 268, 273 (Pa.Super. 2022). "A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record." Id. at 273-74 (cleaned up). "When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a default judgment, a court may only look at what was in the record when the judgment was entered." Id. at 274 (cleaned up). I also emphasize that "the rules concerning service of process must be strictly followed." ANS Assocs., Inc. v. Gotham Ins. Co., 42 A.3d 1074, 1076 (Pa.Super. 2012) (cleaned up).
In the case sub judice, Appellee attempted service as follows:
On April 7, 2021, Appellee filed an affidavit of service attesting that service of the complaint on [Appellant] was effectuated via Federal Express two[-]day service at [Appellant's] address of 240
Pine Valley Road SE, Marietta, Georgia, 30067. Proof of service was attached to the affidavit in the form of the Federal Express detailed tracking sheet that shows said complaint was delivered on Thursday, March 11, 2021 at 10:[07] a.m.
Trial Court Opinion, 5/31/22, at 1-2 (cleaned up). Critically, below where the tracking sheet stated that the package had been "delivered," it indicated that "signature not required." Id. at 10; see also Affidavit of Service of Complaint, 4/7/21, at 3.
Pennsylvania Rule of Civil Procedure 404 provides for service outside the Commonwealth of Pennsylvania as follows:
Original process shall be served outside the Commonwealth within ninety days of the issuance of the writ or the filing of the complaint or the reissuance or the reinstatement thereof:
(1) by a competent adult in the manner provided by Rule 402(a);
(2) by mail in the manner provided by Rule 403;
(3) in the manner provided by the law of the jurisdiction in which the service is made for service in an action in any of its courts of general jurisdiction;
(4) in the manner provided by treaty; or
(5) as directed by the foreign authority in response to a letter rogatory or request.
Pa.R.C.P. 404. Service in this case implicates Rule 404(2) and (3).
Rule 403 provides in pertinent part that "[i]f a rule of civil procedure authorizes original process to be served by mail, a copy of the process shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant or his authorized agent. Service is complete upon delivery of the mail." Pa.R.C.P. 403.
The Georgia statute implicated by Rule 404(3) provides that proof of service shall be made as follows:
Process shall be served by:
(1) The sheriff of the county where the action is brought or where the defendant is found or by such sheriff's deputy;
(2) The marshal or sheriff of the court or by such official's deputy;
(3) Any citizen of the United States specially appointed by the court for that purpose;
(4) A person who is not a party, not younger than 18 years of age, and has been appointed by the court to serve process or as a permanent process server; or
(5) A certified process server as provided in Code Section 9-11-4.1.Ga. Code § 9-11-4(c).
The Majority affirms the trial court's denial of Appellant's petition to strike on the basis of the trial court's opinion. See Majority Memorandum at 7. For the reasons that follow, I find the trial court's analysis fundamentally flawed. First, the trial court considered Appellant's claims pertaining to the petition to open and the petition to strike together, notwithstanding that "[a] petition to open a default judgment and a petition to strike a default judgment seek distinct remedies and are generally not interchangeable." Penn Nat'l Mut. Cas. Ins. Co., supra at 274 n.6 (citation omitted). In doing so, the trial court considered its denial of Appellant's petition to strike pursuant to the standard of review reserved for a denial of a petition to open. See Trial Court Opinion, 5/31/22, at 7-8, 15 (setting forth only the three-prong analysis and abuse of discretion standard for a denial of a petition to open in addressing Appellant's claims that the court erred in denying her petition to open and her petition to strike). Thus, to the extent that the Majority relies upon the trial court's reasoning, I find that it has erroneously ratified a significant legal defect. Indeed, the trial court's conflation of the legal standards essentially results in the denial of Appellant's petition to strike sub silentio.
The trial court also found that Appellant waived her service-of-process claims because she failed to file preliminary objections raising such a claim. See Trial Court Opinion, 5/31/22, at 13. I find this conclusion to be based on a misapplication of our precedent and the Rules of Civil Procedure. This Court has held that "[d]efects in service of process must be raised in preliminary objections." Cinque v. Asara, 585 A.2d 490, 492 (Pa.Super. 1990) (citations omitted). However, critical in the Cinque decision was that the defendant's attorney had entered an appearance and filed an answer and new matter regarding the underlying merits of the litigation despite defendant not being served. Contrarily, other than counsel entering an appearance, Appellant in the case sub judice did not otherwise engage in the litigation. Thus, no waiver results. See, e.g., Cathcart v. Keene Indus. Insulation, 471 A.2d 493, 499 (Pa.Super. 1984) ("For waiver to occur, a party must take some action (beyond merely entering a written appearance) going to the merits of the case, which evidences an intent to forgo objection to the defective service.").
Second, the trial court found that service was properly effectuated because there was sufficient proof of service pursuant to Georgia law and, therefore, service was also in compliance with the Pennsylvania rules governing service of process. See id. at 14-15. However, upon review, I conclude that Appellee failed to effectuate service of process in a manner that comported with Pennsylvania or Georgia law. With respect to Georgia law, the trial court erroneously relied on Ga. Code § 9-11-4(h), which concerns return of service and is the counterpart to our Pa.R.C.P. 405. As noted, the portion of the Georgia statute pertaining to service of process is § 9-11-4(c). Here, Appellee's attempted service did not comply with this subsection because a Federal Express driver is not one of the enumerated individuals authorized to serve process pursuant to § 9-11-4(c). Thus, service did not comport with Pa.R.C.P. 404(3).
The Majority finds that Appellant waived her challenge to the defects in service pursuant to Georgia law because Appellant's counsel entered his appearance prior to the entry of default judgment in a court having subject matter jurisdiction in Bucks County, Pennsylvania. See Majority Memorandum at 7 n.3 (citing Brown v. Fokes Properties 2002, Inc., 657 S.E.2d 820 (Ga. 2008)). I disagree.
It is a long[-]standing rule of law that where the record discloses that a defendant was never served with a copy of the complaint and summons attached thereto, and if the defendant has not either waived service or made a general appearance in the case, there is no valid suit pending in the trial court and the trial court does not acquire personal jurisdiction over the defendant. However, any act by which one consents to the jurisdiction of the court constitutes a waiver.Bigley v. Lawrence, 253 S.E.2d 870, 871 (Ga.Ct.App. 1979) (citations omitted). In Brown, the Supreme Court of Georgia concluded that Brown had waived a defense of defective service by entering a general appearance. Specifically, Brown, acting pro se, entered his appearance in the appropriate Georgia court and, in response to plaintiff's discovery request, filed a timely response objecting to the requests. In finding waiver, the Court relied in part upon its previous decision in Shepherd v. Shepherd, 235 S.E.2d 538, 539 (Ga. 1977). In Shepherd, the Court noted as follows with regards to general appearances and waivers to defects in the service of process:
"A general appearance by a defendant in an action in a court having jurisdiction of the subject matter amounts to a waiver of the issuance of, or defects in the process served, and confers jurisdiction of his person regardless of the fact that process was not served on him or that the service may have been defective. A defendant who appears and pleads to the merits without previous objection to the process, and without also objecting to the jurisdiction of the court over his person, waives any objection which he may have had to the issuance of the process, or the service, and even any objection based on the ground of total want of service."Shepherd v. Shepherd, 235 S.E.2d 538, 539 (Ga. 1977) (quoting E.G.L. Appearances Vol. 2, p. 161) (emphases added).
An appearance is general where it is an absolute submission to the jurisdiction of the court, or defendant takes any substantive step in the proceedings, or does some act which recognizes the case as in court, which is made or done for any purpose other than to question the jurisdiction thereof, and which bears some substantial relation to the cause. Such appearance must be express, or arise by implication from defendant seeking, taking or agreeing to some step or proceeding in the cause beneficial to himself, or detrimental to plaintiff, other than one contesting the jurisdiction only.Tate v. Leres, 200 S.E. 325, 327-28 (Ga.Ct.App. 1938). In Tate, the Georgia Court of Appeals found that a general appearance had been entered because "the defendants not only made this informal appearance by the attorney marking his name opposite the defendants' names on the docket, but followed up this informal appearance with a motion for a continuance, and thus derived a benefit thereunder." Id. at 327. In a subsequent case, the Georgia Supreme Court held that the mere entry of an appearance by wife's counsel and communication between wife's counsel and husband's counsel did not constitute a general appearance waiving wife's challenge to defective service where she did not submit any motions or pleadings or commit any other overt acts evincing participation in the litigation. See Baker v. Baker, 120 S.E.2d 308, 311 (Ga. 1961).
Here, as in Baker, Appellant's counsel entered an appearance and communicated with Appellee's counsel. However, also as in Baker, Appellant did not otherwise participate in the litigation. Accordingly, pursuant to Georgia law, I find that the written entry of appearance and communication with Appellee's attorney did not rise to the level of a general appearance by Appellant that would have resulted in a waiver of Appellant's challenge to defective service of process.
Having found that service of process was not proper under Georgia law and that Appellant did not waive that defective service, I would next consider whether service conformed with Pennsylvania law. Upon review, I conclude that service did not conform to Pa.R.C.P. 403 because Appellee mailed the complaint to Appellant via Federal Express in a manner that did not require a signature upon receipt. See Affidavit of Service of Complaint, 4/7/21, at 3. Thus, this is not a case where Appellant acted in a dilatory manner by refusing to sign a receipt; it is a case where Appellee chose to effect service in a manner that did not require a receipt, in contravention of the requirements of Pa.R.C.P. 403. See ANS Assocs., supra at 1076 (holding that attempted service of process to out-of-state defendant by ordinary mail did not comply by Rule 403 because it lacked a signature requirement).
Finally, the trial court erred insofar as it relied heavily on Appellant receiving actual notice of the complaint in denying her petition to strike. See Trial Court Opinion, 5/31/22, at 2-3, 11-13, 15. In considering a petition to strike, the law of this Commonwealth is that "a court may only look at what was in the record when the judgment was entered." Penn Nat'l Mut. Cas. Ins. Co., supra at 274 (cleaned up). At the time judgment was entered, the record was silent as to actual notice. It was not until after Appellant filed her petition to open or set aside judgment that Appellee asserted Appellant had actual notice of the complaint. Instead, the record at the time judgment was entered contained Appellee's affidavit of service, which included the Federal Express tracking sheet expressly stating that no signature was required. This Court has previously disapproved of considering evidence under analogous circumstances. See ANS Assocs., supra at 1076-77 (holding that evidence that defendant received actual notice of the commencement of a civil action could not be considered in ruling on a petition to strike where it was "not part of the record at the time the default judgment was entered").
Based on the foregoing, the face of the record at the time judgment was entered demonstrated a fatal defect. Therefore, I would conclude that the trial court erred in denying Appellant's petition to strike. Accordingly, I would reverse the order denying the petition to strike. Having determined that the trial court should have granted the petition to strike, I would not reach Appellant's remaining issues. See id. at 1076 n.2 (declining to address whether trial court erred in denying a petition to open default judgment where this Court reversed the court's order denying a petition to strike).
I respectfully dissent.
[*] Former Justice specially assigned to the Superior Court.