Kennedy, S. v. K&J Construction ( 2016 )

J-S42014-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SAMUEL JEFF KENNEDY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
K&J CONSTRUCTION AND LANDSCAPING
LLC AND NATHAN HILL,
Appellants No. 1223 WDA 2015
Appeal from the Order Dated July 10, 2015
In the Court of Common Pleas of Washington County
Civil Division at No(s): No. 2014-487
BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED AUGUST 25, 2016
K&J Construction and Landscaping, LLC and Nathan Hill (collectively,
“Appellants”) appeal the July 10, 2015 order denying their petition to strike
and/or open a default judgment entered in favor of Appellee, Samuel Jeff
Kennedy (“Kennedy”). The issue for review concerns Appellants’ claim that
they were never served with the complaint. We affirm.
The trial court recounted the procedural history as follows:
On January 24, 2014, [Kennedy] commenced this action
by filing a Praecipe for Summons and Summons in Civil Action.
On February 11, 2014, a sheriff served Vanessa Hill, the wife of
[Appellant] Nathan Hill, with said praecipe at the couple’s home.
[Kennedy] filed a Proof of Service indicating that both
[Appellants] were duly served by the Fayette County Sheriff’s
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S42014-16
Department. Eight months later, on October 3, 2014, [Kennedy]
filed a Complaint, alleging breach of contract, as well as
violations of the Home Improvement Consumer Protection Act
(73 P.S. 517.1 §§ et seq) and the Unfair Trade Practice and
Consumer Protection Law (73 P.S. 101.1 §§ et seq). Complaint.
On November 21, 2014, [Kennedy] filed a Proof of Service, in
which [Kennedy’s] counsel, James R. Jeffries, Esq., represented
that he had served the Complaint on [Appellants] by U.S.
Certified Mail Return Receipt Request, and U.S. Regular Mail.
Proof of Service. According to Attorney Jeffries, the U.S.
Certified Mail came back unclaimed, but the U.S. Regular Mail
had not been returned after 14 days. Id. Approximately three
weeks later, [Kennedy] filed a Praecipe for Default Judgment
Pursuant to Pa.R.C.P. 1037(b).
On April 28, 2015, [Appellants] filed a Petition to Strike
and/or Open Judgment, and a hearing on the matter was held on
June 1, 2015. At said hearing, the following discourse took place
between the Court and [Appellants’] attorney, John M. Zeglen,
Esq.
MR. ZEGLEN: Do you want testimony, Your Honor,
or do you want just argument?
THE COURT: I don’t know if any of the facts are in
dispute. I don’t think so. Just argument is fine.
MR. ZEGLEN: And I think you’re right, based on the
answer that he filed and so forth.
Hearing transcript 2:13-19. Thus, no evidence was proffered.
On July 10, 2015, the Court denied [Appellants’] petition, and
reasoned:
Service [of the writ of summons] was proper
pursuant to Pa.R.C.P. 400 and Pa.R.C.P. 402, and
[Appellants] became parties to this litigation when
this service was affected. Accordingly, [Kennedy]
was permitted to mail the subsequent complaint to
[Appellants] Pa.R.C.P. 440. [Kennedy’s] counsel
indicated that a copy of the complaint sent by U.S.
Regular mail had not been returned after 14 days,
and thus it is presumed that the complaint was
received by [Appellants]. Breza v. Don Farr Moving
-2-
J-S42014-16
& Storage Co., 828 A.2d 1131, 1135 (Pa. Super.
2003) (The mailbox rule raises a rebuttable
presumption that the mailed item was received).
Thus, service was proper, no fatal defect, and the
Petition to Strike is DENIED. As to the Petition to
Open, the Court finds that the [Appellants] did not
act promptly in filing this Petition and no equitable
reason to open the judgment is apparent, and
Petition to Open is DENIED.
Court Order of July 10, 2015. [Appellants] timely filed this
appeal.
Trial Court Opinion, 12/16/15, at 1–2.
Appellants raise the following issues on appeal:
I. Whether the [Trial] Court Improperly Applied the Mailbox
Rule?
II. Whether the Court Violated the Appellants’ Due Process
Rights?
III. Whether the Trial Court Erred in Denying Appellants’ Petition
to Strike Default Judgment?
Appellants’ Brief at 3. Our standard of review is described as two-fold:
“A petition to strike a default judgment and a petition to
open a default judgment are two distinct remedies, which are
generally not interchangeable.” Williams v. Wade, 704 A.2d
132, 134 (Pa. Super. 1997) (quoting U.K. LaSalle, Inc. v.
Lawless, 421 Pa. Super. 496, 618 A.2d 447, 449 (1992)). A
petition to open default judgment is discretionary; to reverse, we
must find either a manifest abuse of discretion or an error of law
by the trial court. Bullard, 839 A.2d at 386 (citing Penn–Delco
School Dist. v. Bell Atlantic–Pa, Inc., 745 A.2d 14, 17 (Pa.
Super. 1999)). Conversely, “[a] petition to strike a judgment
raises a question of law and relief thereon will only be granted if
a fatal defect appears on the face of the record.” RAIT
Partnership, LP v. E Pointe Properties I, Ltd., 957 A.2d
1275, 1277 (Pa. Super. 2008) (citing Knickerbocker Russell
Co., Inc. v. Crawford, 936 A.2d 1145, 1146 (Pa. Super.
2007)).
-3-
J-S42014-16
Oswald v. WB Public Square Associates, LLC, 80 A.3d 790, 794 n.3 (Pa.
Super. 2013).
Appellants first contend that the trial court incorrectly relied upon the
mailbox rule in denying Appellants’ motion to strike.1 The mailbox rule
provides that:
depositing in the post office a properly addressed, prepaid letter
raises a natural presumption, founded in common experience,
that it reached its destination by due course of mail. Jenson v.
McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893)
(citation omitted). [ . . . ] Thus, [e]vidence that a letter has
been mailed will ordinarily be sufficient to permit a jury to find
that the letter was in fact received by the party to whom it was
addressed. Shafer v. A.I.T.S., Inc., 285 Pa.Super. 490, 428
A.2d 152, 156 (Pa. Super. 1981) (citations omitted).
Szymanski v. Dotey, 52 A.3d 289, 292 (Pa. Super. 2012) (internal
quotation marks omitted). However, “evidence of actual mailing is not
required.” Id. (quoting Commonwealth Dep't of Transp. v. Brayman
Constr. Corp., 513 A.2d 562, 566 (Pa. Cmwlth. 1986)). “Documentary
evidence of mailing or testimony from the author that a document was
mailed may establish the presumption of receipt.” Szymanski, 52 A.3d at
293 (citing Commonwealth Dep't of Transp. v. Grasse, 606 A.2d 544,
546 (Pa. Cmwlth. 1992)). In particular, “introducing testimony that the
notice was mailed suffices to establish the mailbox rule’s presumption of
____________________________________________
1
Appellants do not offer any particularized argument on the trial court’s
denial of the petition to open the judgment.
-4-
J-S42014-16
receipt.” Szymanski, 52 A.3d at 293 (citing Meierdierck v. Miller, 147
A.2d 406, 408 (Pa. 1959)).
Conversely, “the presumption under the mailbox rule is not nullified
solely by testimony denying receipt of the item mailed.” Murphy v.
Murphy, 988 A.2d 703, 709 (Pa. Super. 2010) (quoting Breza v. Don Farr
Moving & Storage Co., 828 A.2d 1131, 1135 (Pa. Super. 2003)). Instead,
the presumption of receipt under the mailbox rule may be nullified through
the production of evidence demonstrating that the mailing was not in fact
received. Breza, 828 A.2d at 1135 (citing Donegal Mutual Insurance
Company v. Insurance Department, 719 A.2d 825 (Pa. Cmwlth. 1998)
(finding that merely asserting that the letter was not received, without
corroboration, is insufficient to overcome the presumption of receipt)).
The trial court offered the following rationale for applying the mailbox
rule herein:
[Appellants] complain that the Court improperly applied
the mailbox rule, a likely reference to the Court’s citation of
Breza v. Don Farr Moving & Storage Co. See Court Order of July
10, 2015 (“[Kennedy’s] counsel indicated that a copy of the
complaint sent by U.S. Regular mail had not been returned after
14 days, and thus it is presumed that the complaint was
received by [Appellants]”). [Appellants] do not explain their
theory of misapplication, but the record is sufficient to satisfy the
rule, which states that “proof of a mailing raises a rebuttable
presumption that the mailed item was received.” Samaras v.
Hartwick, 698 A.2d 71, 73 (Pa. Super. 1997) (internal citations
omitted). Although [Kennedy] did not provide proof of mailing in
the form of testimony, as is common in mailbox rule cases,
[Appellants] agreed that an evidentiary hearing was
unnecessary, because no facts were in dispute. Hearing
transcript 2:13-19. Thus, [Kennedy] rightly enjoyed the rule’s
-5-
J-S42014-16
rebuttable presumption, which [Appellants] did not even attempt
to overcome. See Donegal Mut. Ins. Co. v. Insurance Dept., 719
A.2d 825, 827 (Pa. Cmwlth. 1998) (“Once this presumption is
established, the party alleging that it did not receive the letter
has the burden of establishing such, and merely asserting that
the letter was not received, without corroboration, is insufficient
to overcome the presumption of receipt.”).
Trial Court Opinion, 12/16/15, at 3–4.
Appellants argue that Kennedy is not entitled to the mailbox rule’s
rebuttable presumption of receipt because he did not offer testimony
providing proof of mailing. Appellants also contend that if the mailbox rule’s
presumption of receipt does apply, they overcame the presumption by
denying receipt of the complaint in their petition to strike and/or open. In
addition, they aver that non-receipt was corroborated by the fact that both
Appellants claimed they did not receive the complaint. We are not convinced
by these assertions.
First, the trial court correctly concluded that the fact of mailing was
established when Appellants agreed at the hearing on the petition’s merits
that there were no facts in dispute. N.T., 6/1/15, at 2; Trial Court Opinion,
12/16/15, at 4. Additionally, the certified record includes a Proof of Service
in which Kennedy’s counsel represented that he had served the complaint on
Appellants by U.S. Certified Mail Return Receipt Request, and U.S. Regular
Mail. The Proof of Service further informed that the U.S. Certified Mail came
back unclaimed, but the U.S. Regular Mail had not been returned after
fourteen days. Proof of Service, 11/21/10, Unnumbered Docket Entry. This
-6-
J-S42014-16
entry in the case docket provides documentary evidence that the complaint
was mailed to Appellants; therefore, the mailbox rule applies and the
presumption of receipt has been met. See Szymanski, 52 A.3d at 292.
Appellants’ companion argument that they overcame the presumption
of receipt likewise does not merit relief. Appellants’ position that non-receipt
was undisputed because they averred so in their petition to strike is
precisely what the mailbox rule precludes. Mere denial does not, by itself,
serve to rebut the presumption that a mailed item was not received. Breza,
828 A.2d at 1135. Also untenable is Appellants’ claim that the fact of non-
receipt was corroborated by each Appellant. Appellants cite Donegal
Mutual Insurance, 719 A.2d at 827, for the proposition that the
presumption of receipt can be nullified where the fact of non-receipt is
verified by another. Appellant omits, however, the Commonwealth Court’s
recognition that the corroborative testimonial evidence in Donegal
originated from “a disinterested third party.” Id. at 827. In this matter,
Appellants’ theory that Appellant K&J Construction, a business entity and a
party to this lawsuit, has the legal capacity to factually corroborate Appellant
Hill’s claim that the complaint was never received is not legally cognizable.
Accord Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1027–1028 (Pa.
Super. 2015) (“A corporation is a creature of legal fiction, which can act or
‘speak’ only through its officers, directors, or other agents.”). We therefore
-7-
J-S42014-16
conclude that Appellants are unable to overcome the mailbox rule’s
presumption of receipt of the complaint.
Appellants’ next argument is that the trial court violated their due
process rights when it denied them an opportunity to present testimony at
the hearing on the merits of their petition to strike and/or open the default
judgment. We agree with the trial court’s characterization of this allegation
as “disingenuous” in light of the fact that Appellants agreed at the outset of
the hearing that no facts were in dispute and agreed with the trial court to
proceed with argument only. Trial Court Opinion, 12/16/15, at 4; N.T.,
6/1/15, at 2. No further discussion is required.
Appellants’ final contention is that the trial court erred in denying its
petition to strike the judgment because they did not receive the complaint
by either certified or regular mail. While at first reading, this allegation of
error appears to be a re-styling of their mailbox rule argument, Appellants’
citation to Clymire v. McKivitz, 504 A.2d 937 (Pa. Super. 1986), in support
of their position indicates that they are asserting that the trial court failed to
consider the appropriate Rules of Civil Procedure with regard to service. In
Clymire, this Court decided that the record therein was fatally defective
partially because the record did not disclose that the complaint was ever
served upon McKivitz. Id. at 939. Here, we have already decided that
application of the mailbox rule created a presumption that Appellants
received the complaint. This conclusion itself distinguishes Clymire wherein
-8-
J-S42014-16
there was no evidence of an attempt at service. Additionally, the trial court
correctly explained why Clymire is not helpful to Appellants’ argument:
The Court relied on Pa.R.C.P. 440, which allows for service by
mail of all legal papers other than original process. Pa.R.C.P.
440(a)(1)(i). Despite [Appellants’] contention to the contrary,
this case’s original process was the Praecipe for Summons and
Summons in Civil Action, which was properly served by a sheriff
in February 2014. Thus, the Complaint in this case was
subsequent to original process, and was properly mailed under
Rule 440.
At the June 1, 2015, hearing, [Appellants] argued that
Clymire v. McKivitz, 504 A.2d 937 (Pa. Super. 1986) “indicate[s]
that when the complaint is not served on the defendant, that is a
basis for striking a default judgment.” Hearing transcript 5:24-
6:1. However, Clymire actually supports Plaintiff’s position. In
Clymire, the suit was initiated against three defendants via writ
of summons, and a default judgment was entered against one
such defendant, David McKivitz, who did not answer the
complaint. Id. at 937-938. Mr. McKivitz ultimately succeeded in
striking the default judgment, as the Superior Court held “[t]he
record in this case does not disclose that the complaint was ever
served upon David McKivitz.” Id. at 939. Crucially, this
sentence in the Superior Court’s opinion was followed by a
footnote, which read:
The manner of service is established by Pa.R.C.P.
1027 as follows:
A party filing a pleading, other than a complaint
by which an action is commenced or a complaint
used as alternative process as provided by Rule
1010(e), shall forthwith serve it on every other
party
(1) by leaving a copy for or mailing a copy to
him at the address endorsed on an
appearance or prior pleading of the party, but
if there is no such endorsement, then
(2) by leaving a copy for or mailing a copy to
him at the residence or place of business of the
-9-
J-S42014-16
party or the address of the party’s attorney of
record, but if there is no such residence or
place of business and no attorney of record,
then
(3) by leaving a copy for him with the
prothonotary of the court in which the action
was commenced for the use of the other party.
(emphasis added).
Id. at 940 n.3. Rule 1027 was replaced by Rule 440, and thus
Clymire acknowledges that when a suit has been initiated by
summons, service of the subsequent complaint is governed by
Rule 440.
Trial Court Opinion, 12/16/15, at 4–5. Accordingly, Appellants’ claim that
they were not properly served notice is without merit. See SmithKline
Beecham Corp. v. Stop Huntingdon Animal Cruelty USA, 959 A.2d 352,
360 (Pa. Super. 2008) (“Pennsylvania Rule of Civil Procedure 440(a)(2)(i)
states that, where an individual is not represented by an attorney [. . .]
‘service shall be made by ... leaving a copy for the party at ... the residence
or place of business of the party.’”).
Order affirmed.
- 10 -
J-S42014-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/25/2016
- 11 -