J-S37003-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
KATHLEEN HACKETT : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HOME SOLUTIONS GROUP, LLC, M : SQUARED GROUP, LLC, GARY J. : MURRAY, JR., RAOUL SEQUIERA : No. 380 EDA 2021 AND KARINA BURDA : : : APPEAL OF: HOME SOLUTIONS : GROUP, LLC, M SQUARED GROUP, : LLC, AND GARY J. MURRAY, JR. :
Appeal from the Order Entered January 7, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): No. 190202344
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED MARCH 07, 2022
Home Solutions Group, LLC, M Squared Group, LLC, and Gary J. Murray,
Jr., (collectively “the Appellants”) appeal from the order denying their motion
to strike and/or open the default judgments entered in favor of Kathleen
Hackett. The Appellants argue that Hackett failed to properly serve the
complaint, and therefore, the default judgments were improperly entered. We
affirm.
____________________________________________
* Former Justice specially assigned to the Superior Court. J-S37003-21
Hackett owns three contiguous lots in the Kensington South section of
Philadelphia, which she has maintained as a garden for more than thirty years.
M Squared and Home Solutions owned the properties on either side of
Hackett’s garden lots. Murray was the principal owner of both M Squared and
Home Solutions.
Beginning in 2018, M Squared and Home Solutions started construction
projects on either side of Hackett’s lots and used her land as a dumping ground
for materials, excavated a five-foot area of Hackett’s property, encroached on
Hackett’s property, and cut back a cherry tree that was planted by Hackett’s
son, who has since died. On February 22, 2019, Hackett filed a complaint
against the Appellants for trespass, boundary line encroachment, and
negligent infliction of emotional distress.1 Relevantly, in the complaint,
Hackett indicated that Home Solutions is a domestic LLC, which was registered
with the Pennsylvania Corporation Bureau at 93 Old York Road, Suite 1-546,
Jenkinstown, Pennsylvania. However, Hackett further averred that Home
Solutions does business from Murray’s residence on Thyme Lane, Philadelphia.
Hackett also noted that M Squared was registered as an LLC with the
1 After filing the suit, Hackett recorded a lis pendens on March 4, 2019, to stop the prospective sale of Home Solutions’s property and receive compensation for her damages. Thereafter, Murray signed a deed transferring title of Home Solutions’s property to Raoul Sequeira and Karian Burda for $502,000. Prior to the filing of Hackett’s complaint, M Squared sold its neighboring property. Notably, the sales agreement on behalf of M Squared was signed by Gary Murray, without any differentiation or use of Jr. or Sr.
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Pennsylvania Corporation Bureau at 836 N. 3rd Street, Philadelphia. Finally,
Hackett stated that Murray conducted business from his residence on Thyme
Lane, and at all times acted as an authorized agent for M Squared and Home
Solutions.
Subsequently, in March 2019, Hackett filed an affidavit of service,
indicating that Murray had been served with the complaint at Thyme Lane,
through his father, Gary Murray, Sr., with whom Murray resided. Hackett filed
a separate affidavit of service, indicating that Home Solutions had been served
with the complaint at Thyme Lane, through Gary Murray, Sr., an agent, or
person in charge of the party’s office or usual place of business. Likewise,
Hackett filed an affidavit of service, indicating that M Squared had been served
with the complaint at Thyme Lane, through Gary Murray, Sr., an agent, or
person in charge of the party’s office or usual place of business.2 The
Appellants did not respond to Hackett’s complaint.
Consequently, upon praecipe by Hackett, the trial court entered default
judgment against M Squared on June 18, 2019, and Murray and Home
Solutions on August 6, 2019. The trial court indicated that it would later assess
damages against the Appellants. Thereafter, Hackett filed an amended
complaint, wherein she restated her averments against the Appellants and
raised additional claims against Sequeira and Burda. Subsequently, the trial
2An attempt to serve M Squared at the address provided to the Pennsylvania Department of State Corporations Bureau was unsuccessful.
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court scheduled trial for November 23, 2020. Although Hackett filed an
affidavit of service, indicating that the Appellants were served with notice of
the trial at Thyme Lane, the Appellants did not appear. Ultimately, the trial
court found in favor of Hackett and against the Appellants in the amount of
$100,000. The trial court also found in favor of Sequeira and Burda.
On December 11, 2020, the Appellants filed a petition to strike and/or
open the default judgments against them, arguing that the three affidavits of
service did not properly reflect service of the complaint upon them. More
specifically, the Appellants argued that Hackett knew, or should have known,
that at the time service was effectuated, Murray did not reside at Thyme Lane,
and neither Home Solutions nor M Squared did business at Thyme Lane. The
Appellants indicated that Murray lived on 4th Street, Philadelphia in March
2019, and that Murray last resided at Thyme Lane in 2013, over 5 years prior
to Hackett’s alleged service on Gary Murray, Sr. The Appellants also maintain
that they first became aware of this action on December 7, 2020, due to an
unrelated docket search by their counsel.
In response to the Appellants’ petition to strike and/or open, Hackett
emphasized that the evidence and information provided by the Appellants
confirmed that Thyme Lane was a good address to effectuate service on
Murray, M Squared, and Home Solutions, and that service of the complaints
was properly provided to Gary Murray, Sr. More specifically, Hackett affirmed
that Murray lived at Thyme Lane, and the complaint was properly provided to
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Gary Murray, Sr., an adult member of the family where Murray resided.
Hackett further disputed the Appellants’ bald claim that Murray lived on N. 4th
Street in March 2019, highlighting that the Appellants offered no proof to
support the claim. Hackett also noted that the N. 4th Street address is owned
by one of Murray’s development companies, which lists a mailing address of
Thyme Lane for the owner. Additionally, Hackett argued that service provided
to Gary Murray, Sr., regarding Home Solutions and M Squared at Thyme Lane
was proper. Hackett presented supplemental material establishing that Gary
Murray, Sr., was listed as an organizing member and vice president of Home
Solutions; the deed for Home Solutions’s neighboring property listed Home
Solutions’ address as Thyme Lane; an agreement between Philadelphia
Redevelopment Authority and Home Solutions regarding Home Solutions’s
property that provided notices be sent to Thyme Lane; a letter from
Philadelphia License and Inspections Commissioner citing Home Solutions’s
address as Thyme Lane; a mortgage and security agreement for the two
properties identified “Gary Murray” with an address of Thyme Lane; a
certificate of organization for M Squared identifying Murray as an organizer
with an address of Thyme Lane; and M Squared listed its address at Thyme
Lane for purposes of Licenses and Inspections, appeals to the Zoning Board
of Adjustment, and the Department of Records.
The trial court ultimately denied the petition to strike and/or open
without a hearing. The Appellants filed a motion for reconsideration. Attached
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to this motion, the Appellants, for the first time, attached a Comcast cable bill
from March 2019, which purportedly established that Murray lived on N. 4th
Street at the time. Additionally, with regard to Home Solutions, the Appellants
submitted a membership certificate, dated June 1, 2003, and an operating
agreement, from 2007, evidencing that Murray was its sole member. The trial
court denied the motion. This timely appeal followed.
On appeal, the Appellants raise the following questions for our review:
I. Whether the trial court erred in refusing to strike or in the alternative open a default judgement when the court relied on evidence submitted by [Hackett] that de hors the record, capriciously disregarded Appellants’ evidence submitted in support of the petition to open and failed to schedule a record hearing to allow for the development of a record on service efforts?
II. Whether the record includes any evidence as to valid personal service on Gary J. Murray Jr. in his personal capacity?
Brief for Appellants at 4 (capitalization omitted).
The Appellants first contend the trial court erred in denying their petition
to strike and/or open default judgments without conducting an evidentiary
hearing on the service of process dispute. See id. at 14, 16, 17-18. The
Appellants argue that the trial court relied on documents attached to Hackett’s
answer, which were outside the trial court’s record, to deny the petition,
without considering their documentary evidence. See id. at 16-18.
Specifically, the Appellants assert that the trial court did not consider Murray’s
personal Comcast cable bill for his residence on N. 4th Street from March
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2019, which substantiated Murray’s proper residence, and a membership
certificate and operating agreement for Home Solutions, which established
that Murray was its sole member. See id. at 17-18. The Appellants claim that
once there was competing evidence regarding Murray’s address, the trial court
was required to hold a “hearing thereon at which the burden rests upon the
one seeking to open the default judgment[.]” Id. at 15 (quoting Johnson v.
Leffring, 235 A.2d 435, 436 (Pa. Super. 1967)).
The Rules of Civil Procedure governing petition practice for petitions to
strike and/or open do not mandate that the trial court hold an evidentiary
hearing prior to ruling on the petition, but rather leaves it to discretion of the
trial court. See Pa.R.C.P. 206.5(d), cmt. (stating that “the court might prefer
to hold a hearing to determine facts and . . . [t]he court might also decide not
to hold hearing or oral argument and decide the matter on briefs alone.”);
see also Pa.R.C.P. 206.6, cmt. (noting that “the court might decide the matter
on briefs alone without a hearing or oral argument”). Moreover, the Court of
Common Pleas of Philadelphia County has promulgated Local Rule *206.4(c),
which provides that “[a] [h]earing or [a]rgument shall be scheduled at the
discretion of the Assigned Judge[.]” Phila.Civ.R. *206.4(c).
As an initial matter, the Appellants do not provide any analysis as to the
continued viability of Johnson in light of Local Rule *206.4 and Pa.R.C.P.
206.5(d) or acknowledge the fact that the trial court had discretion in whether
to hold a hearing on the service issue. Here, there existed no dispute as to
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material fact that required fact-finding prior to the trial court’s resolution of
Appellants’ petition to strike and/or open. In this regard, the parties agree
that Hackett purported to effectuate service on Murray, Home Solutions
Group, and M Squared by serving Murray’s father at Thyme Lane. The only
dispute between the parties is whether such service provided proper notice to
the Appellants. In their petition to strike or open the default judgment,
Appellants provided only a bare assertion that Thyme Lane was not Murray’s
residence at the time service was attempted. In contrast, in her answer,
Hackett provided a multitude of documents indicating that legal notices
regarding Home Solutions’s and M Squared’s properties be sent to the
residence on Thyme Street.
Moreover, the Appellants’ attachment of a cable bill for N. 4th Street
from March 2019, and a certificate of organization for Home Solutions to its
motion for reconsideration, do not establish a dispute of material fact
regarding the service issue because the trial court is not required to consider
new evidence presented for the first time in a reconsideration motion. See
Bollard & Assocs., Inc. v. H & R Indus., Inc., 161 A.3d 254, 256 (Pa.
Super. 2017).3 Under these circumstances, we cannot conclude the trial court
3 We note that the Appellants make much of the fact that the trial court considered the documents attached to Hackett’s answer to the petition to strike and/or open. However, the Appellants have not established how the trial court’s consideration of these documents, which were part of the record, required that it hold an evidentiary hearing. Indeed, these documents spoke (Footnote Continued Next Page)
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abused its discretion in finding, without a hearing, that service was
accomplished. See Capstone Cap. Grp., LLC v. Alexander Perry, Inc., 263
A.3d 1178, 1185 (Pa. Super. 2021) (acknowledging that under Local Rule
*206.4, the Philadelphia County Court of Common Pleas did not abuse its
discretion in declining to hold a hearing in considering a petition to open a
default judgment, as there was no dispute that required fact-finding prior to
the trial court’s resolution of the petition); Neducsin v. Caplan, 121 A.3d
498, 510 (Pa. Super. 2015) (concluding that because appellant failed to
support his allegations in the petition to open judgment, the trial court had no
need to conduct an evidentiary hearing).
We also reject Appellants’ reliance on Frycklund v. Way, 599 A.2d
1332 (Pa. Super. 1991), to establish that an evidentiary hearing for a petition
to strike and/or open was required. First, Frycklund addressed the
defendant’s preliminary objections, not a petition to open/strike. Importantly,
however, this Court did not mandate an evidentiary hearing to address the
defendant’s preliminary objections regarding service issues but instead held
that a trial court may hold an evidentiary hearing when determining whether
a given place is the defendant’s residence. See Frycklund, 599 A.2d at 1333-
34.
to the central dispute in this case — whether Hackett properly served the Appellants at Thyme Lane.
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The Appellants next contend that they presented evidence to support
opening or striking the default judgment. See Brief for Appellants at 19.
According to the Appellants, “a fatal defect exists on the face of the record,”
because Hackett improperly effectuated service on Murray, Home Solutions,
and M Squared by serving Murray’s father at Thyme Lane. Id. at 19-20. The
Appellants suggest that the record is devoid of any evidence that he resided
at his father’s home. See id. at 24. The Appellants further claim that Murray’s
father was not Murray’s agent or a person in charge of the businesses, and,
therefore, did not have authority to accept service on behalf of Murray, Home
Solutions, or M Squared. See id. at 20, 22. The Appellants conclude that the
trial court summarily disregarded their evidence regarding Murray’s home
address, and that the trial court’s order should be “stricken” and/or vacated
and remanded for an evidentiary hearing. See id. at 23, 25.
Preliminarily, although the Appellants set forth the standards of review
for both a petition to strike and open, they, in arguing there is a fatal defect
on the face of the record and the trial court’s order should be “stricken,”
appear to only raise a claim regarding the denial of their petition to strike.4 To
4 In their Statement of Questions Involved, the Appellants only raise a claim regarding personal service of Murray and do not include similar claims concerning M Squared or Home Solutions. Pa.R.A.P. 2116(a) states that “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Despite the Appellants’ failure in this regard, we will address their claims as they are interrelated.
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that end, the Appellants fail to acknowledge that petitions to open and strike
are different remedies subject to different standards. See U.S. Bank Nat’l
Ass’n for Pennsylvania Hous. Fin. Agency v. Watters, 163 A.3d 1019,
1027 (Pa. Super. 2017). Indeed, although the Appellants generally seek a
remand for an evidentiary hearing to further develop the record regarding
where Murray lived and whether Murray’s father was an executive for Home
Solutions, they ignore that a petition to strike is proper only when the defect
in the original judgment appears on the face of the record at the time the
judgment was entered. See Digital Commc’ns Warehouse, Inc. v. Allen
Invs., LLC, 223 A.3d 278, 287 (Pa. Super. 2019).
On the other hand, if the truth of the factual averments contained in
such record are disputed, such as the substance of the Appellants’ argument
here, “then the remedy is by a proceeding to open the judgment and not to
strike.” Id. (citation omitted). Nevertheless, despite the Appellants’ failure to
properly differentiate the remedies available to them, we will review the trial
court’s decision to deny both the petition to strike and open.
We begin by noting that a petition to strike a default judgment presents
the lower court with a question of law; consequently, on appeal, our standard
of review is de novo, and our scope of review is plenary. See Oswald v. WB
Pub. Square Assocs., LLC, 80 A.3d 790, 793 (Pa. Super. 2013). “A petition
to strike a judgment is a common law proceeding which operates as a
demurrer to the record.” Digital Commc’ns Warehouse, 223 A.3d at 284
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(citation omitted). “A petition to strike a judgment may be granted only for a
fatal defect or irregularity appearing on the face of the record.” Id. (citation
omitted). When deciding if there are fatal defects on the face of the record for
the purposes of a petition to strike a default judgment, the court will be limited
to a review of only the record as filed by the party seeking to uphold the
judgment — the complaint and the documents containing the judgment
clauses. See Resolution Trust Corp. v. Copley Qu-Wayne Associates,
683 A.2d 269, 273 (Pa. 1996).
“Service of process is a mechanism by which a court obtains jurisdiction
of a defendant, and therefore, the rules concerning service of process must
be strictly followed.” Trexler v. McDonald’s Corp., 118 A.3d 408, 412 (Pa.
Super. 2015) (citation omitted). Here, the parties dispute service to Murray,
as an individual under Pa.R.C.P. 402, and Home Solutions and M Squared
under Pa.R.C.P. 424. Relevantly, Rule 402 allows for original process to be
served “at the residence of the defendant to an adult member of the family
with whom he resides; but if no adult member of the family is found, then to
an adult person in charge of such residence[.]” Pa.R.C.P. 402(a)(2)(i).
Additionally, Rule 424 states the following:
Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action:
(1) an executive officer, partner or trustee of the corporation or similar entity, or
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(2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or (3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.
Pa.R.C.P. 424.
Here, in considering the Appellants’ petition to strike and looking
exclusively at the record at the time the default judgment was entered, we
are unable to ascertain any fatal defect on the record. Indeed, the record
indicated that Murray lived at the Thyme Lane residence, and the complaint
was properly served on Murray’s father, who is an adult member of the family
with whom Murray resides. Likewise, Hackett properly effectuated service on
Home Solutions and M Squared under Pa.R.C.P. 424. The record establishes
that Murray, as the principal of Home Solutions and M Squared, conducted
business at Thyme Lane. In this regard, Hackett properly served Murray’s
father, who was the owner of the home and was a “person for the time being
in charge” of the regular place of business. Cintas Corporation v. Lee’s
Cleaning Service, Inc., 700 A.2d 915, 920 (Pa. 1997) (stating that service
on a “person for the time being in charge” is proper when there is “a sufficient
connection between the person served and the defendant to demonstrate that
service was reasonably calculated to give the defendant notice of the action
against it.”). Moreover, the Appellants’ arguments that Murray did not live at
Thyme Lane and Murray’s father could not accept service on behalf of Murray,
Home Solutions, and M Squared cannot be considered in a motion to strike as
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any such evidence was outside the record. See Digital Commc’ns
Warehouse, 223 A.3d at 287-88 (recognizing that defendant’s argument that
the individual who signed the return receipt cards was not an authorized agent
could not be considered in a motion to strike because any such evidence was
outside the record). Based on this record, the trial court did not err in denying
Appellants’ petition to strike, as there was no fatal defect appearing of record.5
Furthermore, while the Appellants failed to provide any substantive
analysis of the trial court’s denial of their petition to open, we conclude that
the trial court did not abuse its discretion in denying the petition to open.
Initially, we observe that “[a] petition to open a default judgment is an appeal
to the equitable powers of the court.” Watters, 163 A.3d at 1028 (citation
omitted). “The decision to grant or deny a petition to open a default judgment
is within the sound discretion of the trial court, and we will not overturn that
decision absent a manifest abuse of discretion or error of law.” Id. Generally,
“a default judgment may be opened if the moving party has (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
5 In its opinion, the trial court references evidence provided by Hackett in her answer to the Appellants’ motion to strike/open. To the extent the trial court relied on such evidence, it erred. Nevertheless, we conclude that the trial court’s conclusion denying the motion to strike was proper. See Grabowski v. Carelink Cmty. Support Servs., Inc., 230 A.3d 465, 472 n.3 (Pa. Super. 2020) (stating that “we may affirm a trial court’s decision if there is a proper basis for the result reached, even if it is different than the basis relied upon by the trial court”).
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meritorious defense to the allegations contained in the complaint.” Digital
Commc’ns Warehouse, 223 A.3d at 285 (citation omitted). “However,
where the party seeking to open a judgment asserts that service was
improper, a court must address this issue first before considering any other
factors.” Id. at 288. Further, “[w]hen determining a petition to open a
judgment, matters dehors the record filed by the party in whose favor the
warrant is given, i.e., testimony, depositions, admissions, and other evidence,
may be considered by the court.” Resolution Trust Corp., 683 A.2d at 273
(citation omitted).
Here, there was ample evidence establishing that Murray’s address was
the Thyme Lane residence at the time of service. Specifically, Murray listed
Thyme Lane as his personal address in the certificate of organization for M
Squared, the mortgage agreement for both Home Solutions’s property and M
Squared’s property identify “Gary Murray” as residing at Thyme Lane; and the
agreement between the Philadelphia Redevelopment Authority and Home
Solutions regarding Home Solutions’s property provided for notices to be sent
to Home Services “c/o Gary Murray, Jr. [] Thyme Lane, Philadelphia, 19128.”
Agreement, 10/23/13, at 12. Moreover, as noted above, Appellants failed to
offer any evidence in their petition establishing that Murray lived on N. 4th
Street in March 2019. See Dominic’s Inc. v. Tony’s Famous Tomato Pie
Bar & Rest., Inc., 214 A.3d 259, 270 (Pa. Super. 2019) (stating that the
“petitioning party [in a default judgment] bears the burden of producing
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sufficient evidence to substantiate its alleged defenses”). Therefore, Hackett
properly served the complaint on Murray’s father, “an adult member of the
family with whom [Murray] resides[.]” Pa.R.C.P. 402(a)(2)(i).
Moreover, the evidence established that Gary Murray, Sr., was an
organizing member and vice president (executive officer) of Home Solutions
Group, the deed for Home Solutions’s property listed Home Solutions’ address
as the Thyme Lane residence, and an agreement between Philadelphia
Redevelopment Authority and Home Solutions regarding Home Solutions’s
property provided that notices be sent to Thyme Lane. Accordingly, Murray’s
father properly accepted service on Home Solutions Group’s behalf at the
Thyme Lane residence under Rule 424.
Likewise, Murray’s father properly accepted service for M Squared at
Thyme Lane under Rule 424, as he was the owner of the home and was a
“person for the time being in charge” of the regular place of business. Indeed,
the certificate of organization for M Squared identified Murray as an organizer
with an address of Thyme Lane, and M Squared listed its address at Thyme
Lane for purposes of Licenses and Inspections, appeals to the Zoning Board
of Adjustment, and the Department of Records. Further, Hackett attempted
to serve M Squared at its corporate address but was unsuccessful. See Trial
Court Opinion, 7/13/21, at 6 (“It would be unjust to allow [the Appellants] to
insulate themselves from liability by pointing to addresses on the record that
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were listed for service but failed when service was attempted.”).6 Based upon
the foregoing, the trial court properly denied the Appellants’ petition to open
the default judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/7/2022
6 Finally, as the trial court articulated, the Appellants failed to file a petition to open until over one year after the trial court entered the default judgments, and their “excuse” that they only learned about the judgments inadvertently through another docket search did not qualify as a reasonable excuse. See Trial Court Opinion, 7/13/21, at 9-10; see also Digital Commc’ns Warehouse, 223 A.3d at 286 (noting that in “cases where the appellate courts have found a ‘prompt’ and timely filing of the petition to open a default judgment, the period of delay has normally been less than one month”) (citation omitted).
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