Edwards, W. v. Checkers Drive-in

• Court: Superior Court of Pennsylvania
• Decided: October 2, 2023
• Docket: 2252 EDA 2022
• Status: Unpublished

Opinion

J-A14015-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

WILLIAM EDWARDS : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CHECKERS DRIVE-IN RESTAURANTS, : INC., SRI GUNINA, LLC, PANDYA : RESTAURANTS, LLC, PANDYA REAL : No. 2252 EDA 2022 ESTATE HOLDINGS, LLC, PANDYA : MANAGEMENT, LLC, BRANDON : VENABLE, JIGNESH PANDYA, THE : ROHAN GROUP, LLC, JOHN DOE #1, : JANE DOE #1, JOHN DOE #2, JOHN : DOE #3, JOHN DOE #4, JOHN DOE : LLC OR CORPORATION #1, JOHN : DOE LLC OR CORPORATION #2, : JOHN DOE LLC OR CORPORATION : #3, JOHN DOE LLC OR : CORPORATION #4 : : : APPEAL OF: JIGNESH PANDYA :

Appeal from the Order Entered June 29, 2022 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2020-C-01336

BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED OCTOBER 2, 2023

Appellant, Jignesh Pandya, appeals from the order entered by the Lehigh

Court of Common Pleas on June 29, 2022, denying Appellant’s Petition to Open

and/or Strike Default Judgment. After careful review, we affirm the order.

In June 2020, Appellee, William Edwards, filed a Writ of Summons and

a Complaint naming numerous defendants, including Appellant, in regard to J-A14015-23

an alleged assault of Appellee by an employee of the Checkers Drive-in

Restaurant in Allentown.1 Appellee filed claims against Appellant sounding in,

inter alia, negligent supervision and vicarious liability. Appellee’s initial

attempts to serve Appellant and the Pandya Defendants were unsuccessful.

In September and October 2020, Appellee filed Amended and Second

Amended Complaints in response to preliminary objections filed by Checkers.

In December 2020, Appellee filed a Praecipe to Reissue the Writ of

Summons. Relevant to the instant appeal, on December 21, 2020, Appellee

filed an Acceptance of Service, signed on that date by “Krupa Patel” stating

that “I hereby accept service of the Reissued Writ of Summons on behalf of

the defendants named above and certify that I am authorized to do so.”2

Acceptance of Service, 12/21/20. The “defendants named above” included

Appellant and the other Pandya Defendants.

Appellee additionally filed an Affidavit of Service stating that he mailed

the Second Amended Complaint to Appellant and the other defendants on

December 31, 2020, to which Appellant did not respond. On February 4, 2021,

Appellee filed an Affidavit of Service, indicating that he mailed ten-day notices

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1 Appellee named various individuals and entities as defendants, including Checkers Drive-In Restaurants, Inc. (“Checkers”) as well as Appellant and the following entities connected to Appellant: Sri Gunina, LLC; Pandya Restaurants, LLC; Pandya Real Estate Holdings, LLC; Pandya Management, LLC; and The Rohan Group, LLC (collectively, “Pandya Defendants”). Only Appellant filed the current appeal.

2 The court later found that Ms. Patel served as controller for Appellant and

the Pandya Defendants for fifteen years. Tr. Ct. Op., 6/29/22, at 11.

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of intent to take default judgment pursuant to Pa.R.Civ.P. 237.1 (“Ten-Day

Notices”) to Appellant and all defendants other than Checkers on January 21,

2021. The court entered default judgment against Appellant and the other

defendants, except for Checkers, on February 4, 2021, with the amount to be

determined later.

On May 6, 2021, Appellant and the other Pandya Defendants filed a

Petition to Open and/or Strike Default Judgments, generally claiming that he

had not received proper service because Ms. Patel did not have authority to

accept service for Appellant and the Pandya Defendants.3

On March 9, 2022, the court held argument on the Petition to Strike and

a hearing on the Petition to Open, during which Appellant, Ms. Patel, and

Lehigh County Constable Dennis C. Huber, who obtained Ms. Patel’s signature

on the Acceptance of Service, testified. On June 29, 2022, following post-

hearing briefing, the trial court denied Appellant’s Petition to Open and/or

Strike Default Judgment, finding that Appellant had received service based

upon the Acceptance of Service form signed by Ms. Patel.

On July 29, 2022, Appellant filed a Notice of Appeal. After Appellant

filed his Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal, the

trial court issued a statement pursuant to Rule 1925(a), referencing the

reasoning included in its June 29, 2022 Opinion.

3 Appellant additionally asserted technical challenges claiming that the Acceptance of Service form failed to comply with Pa.R.Civ.P. 402(b). The trial court rejected the claims, which Appellant does not raise on appeal.

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Before this Court, Appellant challenges the trial court’s denial of the

Petition to Strike and/or Open Default Judgment. While phrased as eleven

queries, we find that Appellant raises two overarching questions on appeal:

1. Whether the trial court erred or abused its discretion by denying the Petition to Open the Default Judgment after finding that Appellant received service of the Writ of Summons and the Second Amended Complaint based upon the Acceptance of Service signed by Ms. Patel?

2. Whether the trial court erred as a matter of law by denying the Petition to Strike the Default Judgment because the Writ of Summons failed to comply with Pa.R.Civ.P. 402(b) and Appellee did not file a return of service pursuant to Pa.R.Civ.P. 405?4

A.

Appellant first challenges the trial court’s denial of his Petition to Open

Default Judgment. “A petition to open a default judgment is an appeal to the

equitable powers of the court.” Smith v. Morrell Beer Distributors, Inc.,

29 A.3d 23, 25 (Pa. Super. 2011) (citation omitted). Thus, the decision to

grant or deny the petition “is within the sound discretion of the trial court, and

[appellate courts] will not overturn that decision absent a manifest abuse of

discretion or error of law.” Id. (citation omitted). It is well-established that ____________________________________________

4 Appellant’s eleven questions span seven pages of his brief, while his argument is divided in only six parts. Appellant’s Br. at viii-xiv. His brief, therefore, violates Pennsylvania’s Rules of Appellate Procedure, which mandate that appellants “state concisely the issues to be resolved,” and require that “the argument shall be divided into as many parts as there are questions to be argued[.]” Pa.R.A.P. 2116, 2119. Moreover, Appellant fails to include a copy of his Pa.R.A.P. 1925(b) Statement of Errors Complained of on Appeal in his brief in violation of Pa.R.A.P. 2111. While the violations do not prevent our review of the merits, we reframe and condense the issues for ease of discussion.

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“[i]ssues of credibility and conflicts in evidence are for the trial court to

resolve; this Court is not permitted to reexamine the weight and credibility

determinations or substitute our judgment for that of the factfinder.”

Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006)

(citation omitted).

A court may grant a petition to open default judgment only if the moving

party demonstrates that it “(1) promptly filed a petition to open the default

judgment, (2) provided a reasonable excuse or explanation for failing to file a

responsive pleading, and (3) pleaded a meritorious defense to the allegations

contained in the complaint.” Digital Commc'ns Warehouse, Inc. v. Allen

Invs., LLC, 223 A.3d 278, 285 (Pa. Super. 2019) (citation omitted).

When the moving party challenges the validity of service, as in the

instant case, the court must consider that issue first, because without proper

service the court has neither jurisdiction over the defendant nor the authority

to enter judgment against the defendant. Cintas Corp. v. Lee's Cleaning

Servs., Inc., 700 A.2d 915, 919 (Pa. 1997). “In making this determination,

a court can consider facts not before it at the time the judgment was entered.”

Id. (citation omitted).

The Rules of Civil Procedure set forth procedures for serving original

process but also provides that “[i]n lieu of service under this rule, the

defendant or his authorized agent may accept service of original process by

filing a separate document which shall be substantially” in the form set forth

in Rule 402(b). Pa.R.Civ.P. 402(b). While Rule 405 generally requires persons

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serving process to file a Return of Service, Rule 405(f) instructs that “[a]

return of service shall not be required when the defendant accepts service of

original process.” Pa.R.Civ.P. 405(f). Additionally, Rule 440 permits service

of “legal papers other than original process” by “mailing a copy to . . . the

place of business of the party” or if necessary “to the last known address of

the party to be served.” Pa.R.Civ.P. 440(a)(2).

Appellant argues that the trial court erred or abused its discretion in

denying his Petition to Open. Appellant’s Br. at 8-12, 15-18. He asserts that

he satisfied the three requirements for a petition to open, contending that (1)

he filed the Petition to Open promptly on May 6, 2021, after becoming aware

of the entry of default judgment in April 2021; (2) the delay in filing a

responsive pleading was reasonable as it resulted from Appellee’s failure to

serve Appellant properly with either the Writ of Summons or the Second

Amended Complaint and because he never received the Ten-Day Notice; and

(3) he presented a meritorious defense to Appellee’s underlying claims.5

Appellant’s arguments on the first two prongs hinge upon his contention

that the Acceptance of Service signed by Ms. Patel was invalid and that he did

not receive proper service of the Writ of Service for purposes of Rule 402(b).

Thus, Appellant argues that Rule 440 did not authorize Appellee to serve the

Second Amended Complaint on Appellant by mail because Appellee had not

first served Appellant with original process under Rule 402. Appellant’s Br. at ____________________________________________

5 Appellee did not contest, for purposes of the Petition, that Appellant presented a meritorious defense.

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8-12. In support for these assertions, Appellant relies upon a self-serving

reading of the record, claiming that Ms. Patel was not authorized to accept

service and/or that she did not actually sign the document. Appellant’s Br. at

8.

Appellant, however, does not confront the trial court’s credibility

determinations. The court found that Constable Huber credibly testified

regarding how he obtained Ms. Patel’s signature on the Acceptance of Service

form. Tr. Ct. Op. at 9-10. In contrast, the court described Appellant’s

testimony as “disingenuous[,]” noting that Appellant “was unable to say how

or when he or his lawyers first received notice of the lawsuit or how they knew

to contact outside counsel to respond.” Tr. Ct. Op. at 10-11. The court also

found Ms. Patel’s testimony “unconvincing[,]” noting that she “had a strong

motivation to deny signing the Acceptance of Service.” Id. at 11. Moreover,

the court rejected Appellant’s claim that Appellee had not served him by mail

with the Second Amended Complaint and Ten-Day Notice, finding it to be

“simply not true[,]” in light of the Affidavits of Service filed by Appellee

utilizing Appellant’s correct address. Id. at 13. The trial court opined that

Appellant’s failure to respond was not due to lack of receipt of the documents

but rather “a tactical decision not to respond.” Id. at 14.

After careful review and with deference to the trial court’s credibility

determinations, we conclude that the record fully supports the court’s findings

that Appellee served Appellant with the Reissued Writ of Summons, the

Second Amended Complaint, and the Ten-Day Notice. These factual findings

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undermine Appellant’s Petition to Open because he cannot demonstrate a

reasonable excuse for his failure to file responsive pleadings, as is necessary

to open a default judgment. Accordingly, we affirm the trial court’s denial of

Appellant’s Petition to Open Default Judgment.

B.

Appellant next challenges the denial of his Petition to Strike. “A petition

to strike a judgment is a common law proceeding which operates as a

demurrer to the record [and] may be granted only for a fatal defect or

irregularity appearing on the face of the record.” Digital Commc'ns

Warehouse, Inc, 223 A.3d at 284 (citation omitted). “A fatal defect on the

face of the record denies the prothonotary the authority to enter judgment.”

Id. at 285. When considering whether to grant a petition to strike judgment,

“a court may only look at what was in the record when the judgment was

entered.” Cintas Corp., 700 A.2d at 917. As a petition to strike presents a

question of law, “our standard of review is de novo and our scope of review is

plenary.” Digital Commc'ns Warehouse, Inc., 223 A.3d at 284.

Appellant does not reassert the technical challenges to the Acceptance

of Service which he raised as fatal defects before the trial court. He instead

essentially reframes the arguments set forth above in support of his Petition

to Open, asserting the invalidity of the Acceptance of Service based upon the

testimony of Appellant and Ms. Patel. Appellant’s Br. at 13-14. He contends

that the trial court did not have personal jurisdiction over him because

Appellee failed to properly serve him with original process pursuant to Rule

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402 or file a return of service as required by Rule 405. He claims “[a] default

judgment entered without the [c]ourt having jurisdiction over a defendant is

an apparent defect on the face of the record.” Appellant’s Br. at 14.

Appellant does not present a defect on the face of the record as required

for a petition to strike, but rather merely reasserts his own factual narrative,

which the trial court rejected. As noted, the court concluded that Ms. Patel

accepted original service on Appellant’s behalf by signing a form that

substantially complied with Rule 402(b). The valid Acceptance of Service

undermines Appellant’s arguments that Appellee failed to provide original

service under Rule 402 or file a return of service under Rule 405, as these

requirements are inapplicable in cases involving acceptance of service under

Rule 402(b). We, therefore, agree with the trial court that Appellant failed to

show a defect on the record to support his Petition to Strike.

Accordingly, we conclude that the trial court did not abuse its discretion

or commit an error of law in denying Appellant’s Petition to Open and/or Strike

Default Judgment.

Order affirmed.

Date: 10/2/2023

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