Hester-Allen, S. v. Perry, K.

• Court: Superior Court of Pennsylvania
• Decided: April 30, 2018
• Docket: 2910 EDA 2017
• Status: Unpublished

Opinion

J-A10017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

STEPHANIE HESTER-ALLEN : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : KEVIN PERRY AND ROSALYN PEDLAR : No. 2910 EDA 2017

Appeal from the Order August 24, 2017 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 02850 September Term 2016

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and RANSOM*, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED APRIL 30, 2018

Stephanie Hester-Allen appeals from the order denying her Motion for

Assessment of Damages Hearing. We affirm.

The trial court set forth the factual and procedural history, which we

adopt and incorporate herein. Trial Court Opinion, filed 11/20/17, at 1.

On appeal, Hester-Allen claims that the trial court erred in denying her

Motion for Assessment of Damages Hearing and that she properly served the

Complaint.

Whether a judgment is void due to lack of proper service of the

complaint raises a challenge to the “operation of procedural rules of court,”

which is a question of law. Green Acres Rehabilitation and Nursing Ctr.

v. Sullivan, 113 A.3d 1261, 1267 (Pa.Super. 2015). Therefore, our standard

of review is de novo and our scope is plenary. Id.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-A10017-18

The trial court did not err in denying the Motion for Assessment of

Damages Hearing. The trial court concluded Hester-Allen failed to properly

serve the complaint within 30 days and did not seek to re-instate the

complaint before attempting service. TCO, 11/20/17, at 2. Therefore, the

court found it lacked jurisdiction over Perry and Pedlar, the default judgment

was void, and it properly denied the Motion for Assessment of Damages

Hearing. Id. at 2-3. This was not error. After review of the briefs, record, and

relevant case law, we adopt the well-reasoned opinion of the Honorable Daniel

J. Anders, and incorporate it herein. Id. at 2-3.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/30/18

-2- Hesterallen vs Perry Etal-OPFLD Circulated 04/25/2018 02:15 PM

16090285000067 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY FIRST JUDICIAL DISTRICT OF PENNSYLVANIA TRIAL DIVISION - CIVIL STEPHANIE HESTER-ALLEN, 2910 EDA 2017 Plaintiff/Appellant, Trial case No. 160902850 KEVIN PERRY AND ROSALYN PEDLAR, Defendants/Appellees. OPINION

Plaintiff Stephanie Hester-Allen appeals the trial court's August 24, 2017 order denying

Plaintiffs Motion for Assessment of Damages Hearing. For the reasons discussed herein, the

Superior Court of Pennsylvania should affirm the trial court's order denying Plaintiffs Motion.

FACTUAL AND PROCEDURAL BACKGROUND

On September 26, 2016, Plaintiff filed a civil complaint against Defendants claiming

wrongful eviction, fraud, intentional and negligent infliction of emotional distress, and

negligence. Plaintiff failed to serve the Complaint on Defendants within 30 days of its filing and

did not request the Prothonotary to reinstate the complaint. 1

On December 27, 2016, Plaintiff mailed the Complaint by first-class prepaid postage to

Defendants at 1950 South 23 rd Street, Philadelphia, Pennsylvania 19145. Defendants failed to

respond to the complaint. On February 3, 2017, Plaintiff filed a Motion for Entry of Default

Judgment. After a hearing on April 6, 2017, the trial court granted Plaintiff's Motion for Entry of

Default Judgment and entered Default Judgment against Defendants on April 7, 2017.

On July 31, 2017, Plaintiff filed a Motion for Assessment of Damages Hearing. On

August 24, 2017, the trial court denied Plaintiffs Motion for Assessment of Damages Hearing.

On August 29, 2017, Plaintiff filed this timely appeal of the trial court's Order. I Between the filing of the Complaint and December 27, 2016, Plaintiff attempted to personally serve the Complaint on Defendants at 1950 South 23rd Street, Philadelphia, Pennsylvania 19145 or, alternatively, to serve pursuant to a motion for alternative service, which the trial court denied. DISCUSSION

Plaintiff appeals the trial court's order denying Plaintiff's motion for an assessment of

damages hearing. As explained below, the trial court denied Plaintiff's motion because it

determined that the trial court did not have jurisdiction over Defendants because Plaintiff failed

to serve her Complaint on Defendants in compliance with the Pennsylvania Rules of Civil

Procedure.

If, within 30 days after filing a complaint, a plaintiff fails to properly serve original process

of the complaint upon a defendant within the Commonwealth of Pennsylvania, then the complaint

is ineffective. See Pa. R.Civ.P. 401 (a) and (b); see also Dubrey v. Izaguirre, 685 A.2d 1391, 1394

(Pa. super. ct. 1996); Cahill v. Schults, 643 A.2d 121, 125 (Pa. super. Ct. 1994). If 30 days has

elapsed since the filing of the complaint, in order to make the complaint effective again and the

service valid, the plaintiff must first request the prothonotary to reinstate the complaint and then

properly serve original process of the reinstated complaint upon the defendant. See Pa. R.Civ.P.

400 and 401(a) and (b); Dubrey, 685 A.2d at 1394.

If a plaintiff fails to reinstate the complaint and properly serve the complaint upon a

defendant, then the trial court is without personal jurisdiction over the defendant. Dubrey, 685

A.2d at 1393-94. If a trial court does not have personal jurisdiction over a defendant, then any

default judgment that the trial court enters against the defendant is null and void. Id. If the

underlying default judgment is null and void, then the trial court cannot grant a plaintiff's motion

for assessment of damages hearing. Id

Here, Plaintiff filed her Complaint on September 26, 2016. Plaintiff failed to serve her

Complaint upon Defendants within 30 days, or by October 26, 2016. As such, the September 26,

2016 complaint was ineffective. Plaintiff never requested the Prothonotary to reinstate her

Complaint. Therefore, the Complaint remains ineffective even as of the date of this opinion.

-2- Additionally, Plaintiffs mailing of the Complaint on December 27, 2016 by first-class rd prepaid postage to Defendants at 1950 South 23 Street, Philadelphia, Pennsylvania 19145 was

improper service of original process. Cahill, 643 A.2d 121, 125 (Pa. Super. Ct. 1994) ("[s]ending

initial process by certified mail rather than by the sheriff, is improper."). As noted earlier,

Pennsylvania Rules of Civil Procedure 400.1 and 402 required Plaintiff to have the Sheriff (or a

competent adult) hand a copy of the Complaint to Defendants or to those lawfully designated to

receive original service on behalf of Defendants. See Pa. R.C.P. 400.1 and 402.

Thus, the mailing of the Complaint to Defendants was improper service. Since service

was improper, the trial court lacked personal jurisdiction over Defendants. Since the trial court

lacked personal jurisdiction over Defendants, the default judgment that the trial court entered on

April 7, 2017 was facially defective and void. Since the April 7, 2017 Default Judgment was

facially defective and void, Plaintiffs Motion for an Assessment of Damages Hearing was both

jurisdictionally and procedurally improper. Therefore, the trial court properly denied Plaintiff's

Motion.

CONCLUSION

Therefore, based on the foregoing, the Superior Court should affirm the trial court's order

denying Plaintiff's motion for an assessment of damages hearing.

Dated: November 20, 2017

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