Hester-Allen, S. v. Perry, K. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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