Discover Bank v. Collins, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DISCOVER CARD, ISSUER OF DISCOVER IN THE SUPERIOR COURT OF
CARD, BY ITS AGENT DISCOVER PENNSYLVANIA
FINANCIAL SERVICES, INC.
v.
DOROTHY M. COLLINS AND DEBRA A.
COLLINS
APPEAL OF: DEBRA A. COLLINS
No. 1224 WDA 2016
Appeal from the Order July 18, 2016
In the Court of Common Pleas of Fayette County
Civil Division at No(s): 2598 of 2008 GD, No. 521 DSB 2016
BEFORE: BENDER, P.J.E., MOULTON, J., and SHOGAN, J.,
MEMORANDUM BY MOULTON, J.: FILED SEPTEMBER 20, 2017
Debra A. Collins appeals from the July 18, 2016 order entered in the
Fayette County Court of Common Pleas denying Collins’ petition to strike/
open default judgment. Because we conclude that the trial court applied the
wrong standard when it denied Collins’ motion to strike, we vacate and
remand for further proceedings.
The trial court set forth the relevant history as follows:
Following reinstatement of the Complaint on August 19,
2009,[1] service thereof was made by Deputy Sheriff Helms
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1
Discover Card, Issuer of Discover Card, by its Agent Discover
Financial Services, Inc. (“Discover”) initially filed its complaint on August 8,
(Footnote Continued Next Page)
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on September 2, 2009, at 204 Edison Street, Uniontown,
Fayette County, Pennsylvania. Sheriff Helms filed an
Affidavit of Service stating that he personally served
[Collins2] by handing a copy to her at said address on that
date. The ten day notice of intention to enter the default
judgment was later mailed to [Collins’] actual address at
the time, 1260 Connellsville Road, Lemont Furnace,
Fayette County, Pennsylvania, on November 5, 2009.
When [Collins] failed to respond, Judgment by default was
entered on December 1, 2009, but no address for the
notice of entry of the judgment is set forth in the docket.
[Collins] claim[ed] that she did not learn of the default
judgment until March 16, 2016, when she was served with
the Writ of Revival[,] which had been filed two days
earlier. The Writ of Revival was personally served on
[Collins] at 204 Edison Street, Uniontown. She then filed
the instant Petition to Strike the Confessed Judgment on
April 20, 2016. A hearing/oral argument on the motion
was held on June 8, 2016. The Court notes that although
defense counsel stated to the Court that she was seeking
only to strike the judgment, see N.T. Oral
Argument/Hearing on Motion to Strike Judgment
Proceedings, p. 8, she nevertheless argued relative to
opening a judgment, [i]d. p. 18, and has presented a
further argument regarding opening a judgment in her
Brief, p. 14. The Court will thus consider the instant
motion as one requesting [to] strike or, alternatively, one
seeking to open the judgment.
_______________________
(Footnote Continued)
2008; however, the sheriff’s return of service indicated “not found.” The
return stated that Dorothy Collins was deceased and Debra Collins had
moved.
2
While both Dorothy M. Collins and Debra A. Collins were named
defendants, because Dorothy M. Collins has been deceased since 2007, the
trial court referred to Debra A. Collins as “Collins.” See Opinion and Order,
7/19/16, at 1 n.1 (“Op.”).
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Opinion and Order, 7/19/16, at 1-2 (“Op.”).3
Collins raises the following issues on appeal:
[1.] Whether [the] trial court erred as a matter of law
and/or abused its discretion in according the sheriff’s
return of September 2, 2009 indicating service at [Collins’]
residence conclusive affect [sic] when the sheriff lacked
personal knowledge that the individual he served was
indeed Debra Collins and/or lived at the address as
indicated.
[2.] Whether [the] trial court erred as a matter of law
and/or abused its discretion in failing to consider and place
due weight on the extrinsic evidence presented, i.e. the
testimony of Debra Collins and the documentation
supporting her testimony that she did not live at the
address where service of her was allegedly made.
[3.] Whether [the] trial court erred as a matter of law
and/or abused its discretion in denying the petition to open
when [Collins] pursuant to her brief in support of the
motion to strike set forth a reasonable excuse for delay,
i.e. she was not served with the complaint and a
meritorious defense to the action, i.e. Discover cannot
support the elements of the cause of action.
Collins’ Br. at 5.
Collins’ first two issues relate to her petition to strike. “A petition to
strike [a default judgment] does not involve the discretion of the [trial]
court.” Keller v. Mey, 67 A.3d 1, 4 (Pa.Super. 2013) (quoting Wells Fargo
Bank, N.A. v. Lupori, 8 A.3d 919, 920 (Pa.Super. 2010)). The trial court
must “look at the facts of record at the time judgment was entered” and
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3
The trial court submitted a statement in lieu of a Rule 1925(a)
opinion wherein it refers to its July 19, 2016 Opinion and Order as
addressing all of Collins’ issues.
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grant the petition if it finds “a fatal defect in the judgment [that] appears on
the face of the record.” Id. (quoting Wells Fargo, 8 A.3d at 920).
“A petition to strike a judgment is a common law proceeding which
operates as a demurrer to the record.” Id. (quoting Wells Fargo, 8 A.3d at
921). “Where a fatal defect or irregularity is apparent from the face of the
record, the prothonotary will be held to have lacked the authority to enter
[a] default judgment and the default judgment will be considered void.” Id.(quoting Wells Fargo, 8 A.3d at 921). “Importantly, a petition to strike is
not a chance to review the merits of the allegations of a complaint. Rather,
a petition to strike is aimed at defects that affect the validity of the
judgment and that entitle the petitioner, as a matter of law, to relief.”
Oswald v. WB Public Square Assocs., LLC, 80 A.3d 790, 794 (Pa.Super.
2013) (quoting City of Phila. v. David J. Lane Advert., 33 A.3d 674, 677
(Pa.Cmwlth. 2011)).
“Among the defects that might satisfy the above standard, the
foremost might be a failure with respect to service of process.” Brooks v.
B&R Touring, Co., 939 A.2d 398, 400 (Pa.Super. 2007). This is because
“in order to enter a judgment against a person, the court must first possess
jurisdiction over that individual.” Id. “In order to exercise jurisdiction over
a party, that party must be served with a complaint in a manner approved
by the rules of civil procedure.” Id. at 401. We have explained: “If there is
no valid service of initial process, a subsequent judgment by default must be
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deemed defective. In the absence of valid service, a court lacks personal
jurisdiction over a party and is powerless to enter judgment against him.”
Id. (quoting U.K. LaSalle, Inc. v. Lawless, 618 A.2d 447, 449 (Pa.Super.
1992)). Thus, “rules relating to service of process must be strictly followed.”
McCreesh v. City of Phila., 888 A.2d 664, 666 n.1 (Pa. 2005) (quoting
Sharp v. Valley Forge Med. Ctr. & Heart Hosp., Inc., 221 A.2d 185, 187
(Pa. 1966)).
Collins claims that the judgment entered against her was fatally
defective on its face because she was not properly served in violation of
Pa.R.C.P. 402(a).4 Collins contends that while the sheriff’s return of service
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4
Rule 402(a) states:
(a) Original process may be served
(1) by handing a copy to the defendant; or
(2) by handing a copy
(i) 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; or
(ii) at the residence of the defendant to the clerk
or manager of the hotel, inn, apartment house,
boarding house or other place of lodging at which
he resides; or
(iii) at any office or usual place of business of the
defendant to his agent or to the person for the
time being in charge thereof.
Pa.R.C.P. 402(a).
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indicates that she was personally served at her “current address,” 204
Edison Street, Uniontown, Pennsylvania (“Edison address”), that was not
possible because she has not lived at this address since 1985 and because
she was at work at the day and time service was completed. Further, she
claims that Discover knew that she did not reside at the Edison address
because the sheriff’s August 27, 2008 return of service stated that she had
moved and because in November 2009, Discover sent its “Important Notice
of Default” to her present address, 1260 Connellsville Street, Lemont
Furnace, Pennsylvania (“Connellsville address”).
Generally, “in the absence of fraud, the return of service of a sheriff,
which is full and complete on its face, is conclusive and immune from attack
by extrinsic evidence.”5 Hollinger v. Hollinger, 206 A.2d 1, 3 (Pa. 1965).
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5
Rule 405 governs return of service and states:
(a) When service of original process has been made the
sheriff or other person making service shall make a return
of service forthwith. If service has not been made and the
writ has not been reissued or the complaint reinstated, a
return of no service shall be made upon the expiration of
the period allowed for service.
...
(b) A return of service shall set forth the date, time, place
and manner of service, the identity of the person served
and any other facts necessary for the court to determine
whether proper service has been made.
Pa.R.C.P. 405(a), (b).
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This rule is “based upon the presumption that a sheriff, acting in the course
of his official duties, acts with propriety and, therefore, when the sheriff in
the course of such official duties makes a statement, by way of an official
return, such statement is given conclusive effect.” Id. However, we have
explained that
both logic and common sense restrict the conclusive
nature of a sheriff’s return only to facts stated in the
return of which the sheriff presumptively has personal
knowledge, such as when and where the writ was served;
when, in his official return, the sheriff states that he
served a writ at a certain time and at a certain place, such
facts are known to the sheriff personally and should be
given conclusive effect. However, the immutability of a
return should not extend (a) to facts stated in the return of
which the sheriff cannot be expected to have personal
knowledge and which are based upon information obtained
through hearsay or statements made by third persons or
(b) to conclusions based upon facts known to the sheriff
only through statements made by others. When a sheriff’s
return states that a certain place is the residence or
dwelling house of the defendant, such statement is not of
a matter ordinarily within the personal knowledge of the
sheriff but only a statement based upon that which he has
been told by other persons, i.e., he had been instructed by
a third person to make service at a certain place which he
is told is the residence or dwelling house of the defendant.
No sound reason exists for giving a conclusive effect to a
statement in the sheriff’s return as to a fact or conclusion
which arises not from the sheriff’s own personal knowledge
or observation but from information given him by other
persons.
Id. (emphasis in original).
In denying Collins’ petition to strike, the trial court accepted as
conclusive the sheriff’s return in its entirety. During oral argument on
Collins’ petition to strike, the following exchange occurred:
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THE COURT: But [the complaint] was served. The
[s]heriff says it was served.
[COLLINS’ COUNSEL]: I’m trying to show fraud, Your
Honor, that they knew her address yet did not serve her
with the complaint at her address, and she will testify –
THE COURT: Unless [the sheriff] comes in here and says
I never served her, that Affidavit of Service is incorrect,
it[’s] on its face valid.
[COLLINS’ COUNSEL]: I think it can’t, the service can’t
be disproved by extrinsic evidence but I’m arguing there’s
[] fraud here, that they filed a complaint that’s defective
on its face, cannot be cured and that the only way to do it
is serve it where they know she’s not, and that’s exactly
what happened.
THE COURT: So you want me to find that [the sheriff]
fraudulently –
[COLLINS’ COUNSEL]: No.
THE COURT: – completed an Affidavit of Service.
[COLLINS’ COUNSEL]: Well –
THE COURT: He says he served her.
[COLLINS’ COUNSEL]: I know what he said.
THE COURT: So you want me to find that he fraudulently
completed the Affidavit of Service.
...
THE COURT: But I also know him as a Deputy Sheriff for
however many years. There’s no conceivable way that I’m
going to find that he falsified that Affidavit of Service.
[COLLINS’ COUNSEL]: I’m not alleging that. I’m
alleging that he handed it to somebody that he didn’t
know. The fraud is on part of [Discover].
N.T., 6/8/16, at 9-10.
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Further, while the trial court permitted Collins to testify, it made clear
that her testimony would not affect its determination. See N.T., 6/8/16, at
12, 13 (“THE COURT: Okay. I’ll let you have her testify to whatever it is
you want her to say but – . . . Okay. Have her say whatever you want her
to say.”).
As stated in Hollinger, the conclusiveness of a sheriff’s return applies
only to facts within the sheriff’s personal knowledge, such as when and
where service occurred. Facts not within the sheriff’s own personal
knowledge should not be given the same conclusive effect. See Hollinger,
206 A.2d at 3. In Hollinger, the trial court explained that a statement in
the sheriff’s return regarding whether a certain place was the defendant’s
residence was not a matter within the sheriff’s personal knowledge; rather,
it was a statement relayed to him by a third party. Id. Thus, our Supreme
Court held that no conclusive effect could be given to such a statement. Id.
Similarly, in Anzalone v. Vormack, 718 A.2d 1246, 1247 (Pa.Super.
1998), service of process was made by a constable 6 and indicated that it had
been served upon the defendant’s girlfriend. There, we restated the holding
in Hollinger “that statements in a return of service listing when and where
a complaint is delivered constitute matters which are within the personal
knowledge of the process server and not subject to attack[, which] renders
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6
A constable, like a sheriff, is authorized to serve a complaint.
Anzalone, 718 A.2d at 1249.
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the date, time and place service was made . . . conclusive and immune from
a[ttack].” Id. at 1249. However, we explained that “with regard to the
status of the person to whom service was made being a ‘girlfriend’ named
‘Stacy Fuller’ and the defendant’s address being ‘15 Sunnyhill Drive, Beaver
Falls, PA[,’] these are matters which the [sheriff] presumptively had no
personal knowledge but learned via third-party disclosure.” Id. “As such,
the defendant was not precluded from attacking such representations.” Id.Therefore, whether Collins was the person the sheriff served and
whether the Edison address was Collins’ then-current residence were not
matters within the sheriff’s personal knowledge and, thus, were not immune
from attack. See Hollinger, 206 A.2d at 3; Anzalone, 718 A.2d at 1249.
Therefore, the trial court erred in giving conclusive effect to those facts in
the return and in failing to consider the testimony and other extrinsic
evidence presented by Collins to rebut the validity of the return.
Accordingly, we vacate the trial court’s order and remand this matter
to the trial court for further proceedings.
The trial court and the parties also address whether Collins effectively
filed a petition to open judgment, and if so, whether such petition should
have been granted.7 However, because resolution of the petition to open,
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7
We have explained that, “[a] petition to open a default judgment and
a petition to strike a default judgment seek distinct remedies and are
generally not interchangeable.” Green Acres Rehab. and Nursing Center
(Footnote Continued Next Page)
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assuming it was filed, may turn on the resolution of the petition to strike, we
decline to address that issue at this time.
Order vacated. Case remanded with instructions. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/20/2017
_______________________
(Footnote Continued)
v. Sullivan, 113 A.3d 1261, 1270 (Pa.Super 2015) (quotation omitted).
While a petition to open “is an appeal to the equitable powers of the court,”
whose decision “we will not overturn . . . absent a manifest abuse of
discretion or error of law,” id. (quotation omitted), “a petition to strike a
default judgment should be granted where a fatal defect or irregularity
appears on face of record,” id. (quotation omitted). See also Cintas Corp.
v. Lee’s Cleaning Services, Inc., 700 A.2d 915, 918-19 (Pa. 1997)
(stating that a petition to strike does not involve the discretion of the court,
rather it operates as a demurrer to the record, and “can only be granted if a
fatal defect appears on the face of the record,” while a petition to open “is
an appeal to the equitable powers of the court . . . and will not be disturbed
absent a manifest abuse of . . . discretion.” Moreover, for a petition to open
a judgment 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.”) (internal citations omitted).
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