Domus, Inc. v. Signature Building Systems ( 2019 )

J-S28009-19
2019 PA Super 349DOMUS, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SIGNATURE BUILDING SYSTEMS OF :
PA, LLC :
: No. 1547 MDA 2018
Appellant :
Appeal from the Order Entered August 2, 2018
In the Court of Common Pleas of Lackawanna County Civil Division at
No(s): 2015 Civil 4440
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
OPINION BY BOWES, J.: FILED NOVEMBER 26, 2019
Signature Building Systems of PA, LLC (“Signature”) appeals from the
August 2, 2018 order that denied its motion to strike a foreign judgment
obtained by Appellee Domus, Inc. (“Domus”) in New Hampshire, and executed
in this Commonwealth pursuant to the Pennsylvania Uniform Enforcement of
Foreign Judgments Act (“UEFJA”), 42 Pa.C.S. § 4306. After careful review,
we reverse.
This case arose as a contractual dispute between Signature and Domus
with respect to a residential construction project at Dartmouth College in
Hanover, New Hampshire. Domus contracted with Signature for the latter to
provide modular units. Domus alleged that the units Signature delivered were
defective and that Domus suffered damages as a result.
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* Retired Senior Judge assigned to the Superior Court.
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On October 17, 2011, Domus filed suit against a third-party inspection
entity, PFS Corporation (“PFS”), which had entered into a separate contract
with Signature and was responsible for inspecting and certifying the condition
of the at-issue modular residential units. PFS, with permission from the New
Hampshire trial court, added Signature as a party-defendant via a third-party
complaint. See New Hampshire Trial Court Docket, 6/29/15, at 2. That same
day, the New Hampshire trial court entered an order of notice of service upon
Signature. On April 12, 2012, PFS filed an affidavit of service averring that
Signature had been served with notice and relevant copies of PFS’s third-party
complaint filings via certified mail. See PFS Affidavit of Service, 4/11/12, at
1-5. The affidavit included a copy of the certified mail receipt and tracking
information confirming that the notice was delivered to Signature’s
Pennsylvania offices at 1004 Springbrook Avenue, Moosic, Pennsylvania
18507, which is located in Lackawanna County. Id. On June 20, 2012, PFS
filed a supplemental affidavit attesting that Signature did not maintain offices
in New Hampshire. See PFS Supplemental Affidavit of Service, 6/20/12, at 1.
The next day, the New Hampshire trial court entered a notice of default against
Signature with respect to PFS’ third-party claims. Id. On November 28, 2012,
counsel for Signature entered an appearance, but subsequently withdrew
those appearances on January 28, 2013.
On April 19, 2013, Domus filed, again with permission from the New
Hampshire trial court, a third-party complaint against Signature in the same
proceeding. Thereafter, an order of notice for service upon Signature was
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issued by the New Hampshire trial court. On June 21, 2013, Domus sent
copies of its third-party complaint and relevant documents to the Lackawanna
County Sheriff’s Office to effectuate in-person service upon Signature. On
July 2, 2013, Domus filed in New Hampshire an affidavit of service from the
Lackawanna County Sheriff indicating that a deputy hand-delivered a copy of
Domus’ third-party complaint to Signature’s offices on June 25, 2013, by
handing them to a “person in charge” named Briana Kresge. See Lackawanna
County Sheriff’s Affidavit of Service, 6/25/13, at 1. Domus
contemporaneously filed a return of service. However, on July 29, 2013, the
New Hampshire trial court declined to issue a default notice with respect to
Domus’ third-party claims against Signature.1
Thereafter, Domus filed a motion to extend time for service upon
Signature, which the New Hampshire trial court granted on September 11,
2013. That same day, the New Hampshire trial court issued a renewed order
of service upon Signature. Pursuant to this order of service, Signature was
given until December 3, 2013 to “file a written appearance form” with the New
Hampshire trial court. See Order of Service, 9/11/13, at unnumbered 1. On
September 19, 2013, Domus caused the Merrimack County Sheriff’s
Department to serve copies of the relevant documents upon the New
Hampshire Secretary of State. See Merrimack County Sheriff Affidavit of
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1 The reason for the New Hampshire trial court’s initial refusal to enter a
default is not evident from the contents of the certified record, and neither
party has offered an explanation beyond noting that the default was refused.
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Service, 9/19/13, at unnumbered 1. Domus also sent copies of the relevant
filings via certified mail to Signature’s office location in Lackawanna County,
which were delivered on October 23, 2013. See Domus Affidavit of Service,
11/4/13, at 1-2, 4-6. Domus filed an affidavit of service attesting to these
events with the New Hampshire trial court on November 5, 2013. That same
day, Domus also filed a return of service from the New Hampshire Secretary
of State with respect to Signature.
On December 10, 2013, the New Hampshire trial court entered a finding
of default against Signature as to the third-party claims filed by Domus for
failure to file an appearance. See Notice of Default, 12/10/13, at unnumbered
1. Three days later, Domus filed a motion for hearing as to final judgment
requesting an opportunity to “present evidence of damages,” which was
granted. Following a hearing on February 24, 2014, the New Hampshire trial
court entered a final judgment in favor of Domus and against Signature in the
amount of $293,081.00 with “interest at 2.1% from September 11, 2013.”
See Final Judgment, 2/24/14, at 1-2.
On July 28, 2015, Domus flied a praecipe for writ of execution in the
Court of Common Pleas of Lackawanna County, seeking to levy the default
judgment upon Signature’s real and other property in the amount of
$314,252.74. On August 10, 2015, Signature filed a motion to strike the
foreign judgment, arguing that “[a]t no time after August 2013 did Signature
receive any notice concerning any proceedings in the action filed in New
Hampshire.” See Motion to Strike Foreign Judgment, 8/10/15, at ¶ 5.
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Signature also argued that Domus had not complied with the affidavit and
authentication requirements set forth in the UEFJA. Id. at ¶ 11. By way of
explanation for its prolonged absence from the New Hampshire proceedings,
Signature averred: “Signature was briefly represented by counsel in the New
Hampshire action; however, it withdrew its defense since the action had been
brought in violation of the aforesaid arbitration agreement.” 2 Id. at ¶ 4. The
Pennsylvania trial court issued a rule to show cause. Thereafter, the parties
engaged in extensive discovery and briefing concerning the validity of the New
Hampshire default judgment. A hearing was held on July 24, 2018, and post-
hearing briefs from both parties were entertained.
On August 2, 2018, the Pennsylvania trial court denied Signature’s
motion to strike foreign judgment, concluding that “when a [d]efendant
receives notice and fails to participate in the proceedings, ‘due process doesn’t
require notice of [plaintiff’s] intent to enter a default judgment or of their
intent to take procedural steps to reduce their judgment to a monetary
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2 Our review of the relevant New Hampshire and the Pennsylvania dockets
and filings indicates that Signature has never made any argument that the
above-referenced arbitration clause has any impact upon the validity of the
New Hampshire action, or the default judgment obtained by Domus. More
importantly, Signature has not advanced any such claims in its briefing before
this Court. The only mention of such in the filings relevant to this appeal is
an unadorned and unexplored mention in Signature’s Rule 1925(b) filing. See
Rule 1925(b) Statement, 10/26/18, at ¶ 2. As such, we will not inquire
further. See Irwin Union Nat. Bank and Trust Co. v. Famous, 4 A.3d
1099, 1103 (Pa.Super. 2010) (“This Court will not act as counsel and will not
develop arguments on behalf of an appellant.”).
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amount.’” Order, 8/2/18, at ¶ 16 (quoting Noetzel v. Glasscow, 487 A.2d
1372, 1376 (Pa.Super. 1985)).
Signature filed a timely notice of appeal to this Court. The Pennsylvania
trial court directed Signature to file a concise statement of matters complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Signature timely complied, and
the Pennsylvania trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Signature raises two separate issues for our disposition: (1) whether the
Pennsylvania trial court erred in refusing to strike the foreign judgment where
“there is an insufficient affidavit filed at the time the judgment was
transferred;” and (2) whether the Pennsylvania trial court erred in refusing to
strike Domus’ foreign judgment when “the docket entries show no notice to
[Signature] of a trial assessing damages.” Signature’s brief at 2.
The applicable principles guiding our review are well-established: “Our
standard of review from the denial of a petition to strike a judgment is limited
to whether the trial court manifestly abused its discretion or committed an
error of law.” Reco Equipment, Inc. v. John T. Subrick Contracting, Inc.,
780 A.2d 684, 686 (Pa.Super. 2001). In this context, “[a] petition to strike a
judgment operates as a demurrer to the record, and must be granted
whenever some fatal defect appears on the face of the record.” Oswald v.
WB Public Square Associates, LLC, 80 A.3d 790, 793-94 (Pa.Super. 2013).
As a general proposition, “[t]he full faith and credit clause of the United
States Constitution requires state courts to recognize and enforce the
judgments of sister states.” Id. (citing U.S. CONST., Art. 4, § 1). In
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Pennsylvania, this constitutional mandate is fulfilled via the UEFJA, see Ward
v. Price, 814 A.2d 262, 263 (Pa.Super. 2002), which provides as follows:
(b) Filing and status of foreign judgments.—A copy of any
foreign judgment including the docket entries incidental thereto
authenticated in accordance with act of Congress or this
title may be filed in the office of the clerk of any court of common
pleas of this Commonwealth. The clerk shall treat the foreign
judgment in the same manner as a judgment of any court of
common pleas of this Commonwealth. A judgment so filed shall
be a lien as of the date of filing and shall have the same effect and
be subject to the same procedures, defenses and proceedings for
reopening, vacating, or staying as a judgment of any court of
common pleas of this Commonwealth and may be enforced or
satisfied in like manner.
42 Pa.C.S. § 4306(b) (emphasis added). Thus, parties seeking to enforce a
foreign judgment must properly authenticate the underlying documentation.
Id. In relevant part, parties must authenticate such records under either
federal law, see 28 U.S.C. § 1738, or under Pennsylvania law, see 42 Pa.C.S.
§ 5328. See Medina & Medina, Inc. v. Gurrentz Intern. Corp., 450 A.2d
108, 109 (Pa.Super. 1982).
We begin by addressing Signature’s contention that Domus failed to
provide a properly authenticated judgment pursuant to the UEFJA. However,
before adjudicating the claim on its merits, we must separately determine
whether Signature has waived this claim under the Pennsylvania Rules of
Appellate Procedure. See Domus brief at 15-19. Domus strenuously argues
that Signature has waived this claim under a variety of theories, including
Pa.R.A.P. 302(a) (failing to raise issue in lower court), Pa.R.A.P. 1925(b)
(failing to include issue in concise statement), Pa.R.A.P. 2116(a) (failing to
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include issue in statement of questions presented), Pa.R.A.P. 2117(c) (failing
to identify nature of issue preservation), and Pa.R.A.P. 2119(e) (failing to
include a statement of place of raising of preservation of issues). Id. at 8-9,
15-19.
Domus appears to have overlooked mentions of this issue in Signature’s
earlier motions practice before the Pennsylvania trial court. See Motion to
Strike Foreign Judgment, 8/10/15, at ¶ 11. But Domus is correct in observing
that Signature neglected to include this issue in its Rule 1925(b) statement.
Normally, this would result in waiver. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues
not included in the Statement . . . are waived.”). However, the precise issue
raised by Signature regarding the lack of a properly authenticated foreign
judgment is one of jurisdictional gravity under the precedent of this Court.
See Ward, supra at 264 (“Since [a]ppellant did not file an authenticated copy
of the judgment of record, the common pleas court was without
jurisdiction to enforce the purported judgment . . . .” (emphasis added)).
Although we did not explicitly utilize the term “subject matter
jurisdiction” in our holding in Ward, we readily discern that this issue “involves
the competency of a court to hear and decide the type of controversy before
it.” Cobbs v. SEPTA, 985 A.2d 249, 254-55 (Pa.Super. 2009). Our case law
interpreting the UEFJA also states that “a foreign judgment entered without
jurisdiction is a nullity” and, thus, void. Commonwealth Capital Funding,
Inc. v Franklin Square Hospital, 620 A.2d 1154, 1156 n.2 (Pa.Super.
1993). To that point, we have also long held that “a litigant may seek to strike
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a void judgment at any time.” Oswald v. WB Public Square Associates,
LLC, 80 A.3d 790, 793 n.2 (Pa.Super. 2013). As such, since this claim speaks
to the subject matter jurisdiction of the trial court to hear this controversy in
the first instance, it is not subject to waiver. See Cobbs, supra at 255 (“Any
issue going to the subject matter of a court to act in a particular matter is an
issue that cannot be foreclosed by agreement, estoppel, or waiver.”).
Turning to the substance of Signature’s claim that Domus has failed to
properly certify the underlying foreign judgment in this case, we must
examine the statutory requirements for such authentication. Under
Pennsylvania law, a “domestic record” may be authenticated as follows:
(a) Domestic record.—An official record kept within the United
States, or any state, district, commonwealth, territory, insular
possession thereof, or the Panama Canal Zone, the Truth Territory
of the Pacific Islands, or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or by
a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied by a certificate that
the officer has the custody. The certificate may be made by a
judge of a court of record having jurisdiction in the governmental
unit in which the record is kept, authenticated by the seal of the
court, or by any public officer having a seal of office and having
official duties in the governmental unit in which the record is kept,
authenticated by the seal of his office.
42 Pa.C.S. § 5328(a). Federal law provides a similar analogue stating in
pertinent part as follows:
The records and judicial proceedings of any court of any such
State, Territory or Possession, or copies thereof, shall be proved
or admitted in other courts within the United States and its
Territories and Possessions by the attestation of the clerk and seal
of the court annexed, if a seal exists, together with a certificate of
a judge of the court that the said attestation is in proper form.
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28 U.S.C. § 1738 (emphasis added).
The relevant commonality to note between these two statutes for the
purposes of this case is that both require a separate certificate to accompany
the foreign judgment. Pennsylvania law requires a certificate regarding the
custody of the original document, while federal law requires a certificate from
the issuing court attesting that the document being transferred is “in proper
form.” Regardless of which authentication method is utilized, a certificate is
required. Compare 42 Pa.C.S. § 5328(a) with 28 U.S.C. § 1738.
It is unclear from the record before us under which authentication
process Domus intended to proceed in this case, although its brief suggests
its intent was to utilize § 5328(a). See Domus’ brief at 19 (“[T]he NH
judgment and docket entries were adequately certified/authenticated/attested
by that jurisdiction in accordance with 42 Pa.C.S. §§ 4306(b) and 5328(a).”).3
Ultimately, this is a distinction without a difference because no certificate is
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3 Domus’ averment in its brief to this Court that they have fully complied with
these statutory provisions amounts to a bald statement of compliance without
the necessary supporting evidence. In relevant part, Domus attached a
scanned copy of the final judgment from New Hampshire that was stamped
with a seal to confirm its authenticity and signed by an individual averring to
be a “Court Assistant.” However, there is nothing that can even charitably be
construed as a certificate that either speaks to which government officer has
custody of the original document, see 42 Pa.C.S. § 5328(a), or that confirms
that the judgment is in its proper format. See 28 U.S.C. § 1738. Domus has
declined to direct our attention to such a filing, and our thorough review of
the certified record has uncovered no such certificate.
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attached to the copy of the purportedly final judgment accompanying the
initiating praecipe that Domus filed in the Lackawanna County Court of
Common Pleas. See Domus Praecipe, 7/16/15, at unnumbered 1-10. The
at-issue judgment is, thus, facially invalid due to the lack of a certificate. See
Webb v. Consumer Auto Leasing, Ltd., 340 A.2d 865, 867 (Pa.Super.
1975) (concluding that a foreign judgment from New York was not properly
authenticated in Pennsylvania under § 1738 because “it lacks a certificate of
a judge of the court that the said attestation is in proper form”).4 Case law
from our brethren in the Commonwealth Court also suggests that the lack of
a proper certificate under § 5328(a) undermines the validity of foreign
documents in Pennsylvania.5 See Rhoads v. Commonwealth, 620 A.2d
659, 663 (Pa.Cmwlth. 1993) (“[W]hen section 5328(a) is used as a basis for
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4 Our holding in Webb v. Consumer Auto Leasing, Ltd., 340 A.2d 865, 867
(Pa.Super. 1975), was later distinguished by this Court in Medina & Medina,
Inc. v. Gurrentz Intern. Corp., 450 A.2d 108, 109 n.2 (Pa.Super. 1982),
solely on the grounds that Webb suggested that § 1738 was the exclusive
method to authenticate foreign judgments in Pennsylvania. At the time Webb
was decided, “there were no existing state statutes relating to . . . the method
of authentication.” Webb, supra at 867. As we later observed in Medina,
“[a]lthough that statement was true when written, our legislature has since
adopted the present version of the Judicial Code, rendering appellant’s
contention patently frivolous.” Medina, supra at 109 n.2. The basic holding
in Webb as it relates to the preclusive effect of a lack of a certificate remains
valid for the purposes of this opinion.
5 While we are “not bound by the decisions of the Commonwealth Court,” we
cite such decisions as “persuasive authority.” Petow v. Warehime, 996 A.2d
1083, 1088 n.1 (Pa.Super. 2010). Overall, “we may turn to our colleagues on
the Commonwealth Court for guidance where appropriate.” Id.- 11 -
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such an admission in Pennsylvania, obviously, the certification must conform
to the requirements of that section . . . .”).6
The issue of whether the lack of this certificate under § 5328(a) is fatal
for the purposes of authentication under the UEFJA appears to be an issue of
first impression, and our review of the relevant case law has uncovered no
opinions squarely on point. However, the statutory language of the UEFJA
predicates the co-equal treatment of foreign judgments in Pennsylvania upon
complete adherence to these authentication procedures. See Ward, supra
at 263. Moreover, this Court has held that the requirements of the UEFJA are
not discretionary, and we have espoused a policy of strictly interpreting the
requirements set forth under the UEFJA. Id. at 264 (rejecting an invitation to
“artificially . . . create a discretionary standard that our legislature did not
intend” under the UEFJA). As such, we conclude that the authentication
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6 The holding in Rhoads v. Commonwealth, 620 A.2d 659 (Pa.Cmwlth.
1993) addressed whether the Pennsylvania Department of Transportation had
adequately authenticated a record of an out-of-state DUI conviction under §
5328(a). Following the holding in Rhoads that such authentication had not
been satisfied, the General Assembly adopted amendments at 75 Pa.C.S. §
1550(d) (“Documentation”) that “lessened the Department’s burden” in
authenticating such documents. See Mackall v. Comm., Dept. of Transp.,
Bureau of Driver Licensing, 680 A.2d 31, 34 (Pa.Cmwlth. 1996). Thus,
Mackall distinguished Rhoads to the extent that the intervening adoption of
§ 1550(d) had changed the state of the law with respect to the Pennsylvania
Department of Transportation. The portion of the holding in Rhoads
regarding non-compliance with § 5328(a) was unaffected by this
development.
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requirements contained within the UEFJA must be viewed strictly in this
context and are not “discretionary.”
Based on the foregoing discussion, Domus’ failure to attach a
certification pursuant to either § 1738 or § 5328(a) undermines its attempts
to authenticate the New Hampshire default judgment pursuant to the UEFJA.
Accord Webb, supra at 867; Rhoads, supra at 663. As a result of this
deficiency, the Pennsylvania trial court lacked jurisdiction from the inception
of Domus’ efforts to enforce the New Hampshire judgment in Pennsylvania.7
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7 The learned Concurrence has expressed concern regarding this conclusion,
arguing that the authentication requirements under the UEFJA should mirror
verification procedures under Pa.R.Civ.P. 1024 by permitting “substantial
compliance” and essentially excusing foreign judgments that lack
authentication as required by § 4306(b). See Concurring Opinion at 2
(“Because verification merely is necessary for the protection of the party, this
Court has rejected the notion that verification is required to invoke the
jurisdiction of the lower court.”). As an initial matter, we note that this opinion
does not include any issues that arguably touch upon Rule 1024 practice.
Moreover, as the Concurrence acknowledges, our Supreme Court has explicitly
held that the lack of verification does implicate issues of jurisdictional
dimension and is, accordingly, not subject to waiver. See In re Opening of
Ballot Boxes, Montour County, 718 A.2d 774, 777 (Pa. 1998). We also
note that the additional case law cited by the Concurrence regarding its “grave
doubts” do not arise in the context of foreign judgments, but merely address
situations in which a required verification for a domestic pleading has actually
been submitted but was simply signed by the wrong individual. See Monroe
Contract Corp. v. Harrison Square, Inc., 405 A.2d 954, 958 (Pa.Super.
1979) (concluding that a verification signed by attorney and not party
sufficiently complied with Rule 1024); Rupel v. Bluestein, 421 A.2d 406, 410
(Pa.Super. 1980) (same); George H. Atlof, Inc. v. Spartan Inns of
America, Inc., 441 A.2d 1236, 1238 (Pa.Super. 1982) (same). By contrast
in this case, no certification was submitted at all. Finally, we note that the
strict precedent governing compliance with § 4306(b) explicitly disapproves
of any such deferential standard of review. See Ward, supra at 263.
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Accord Ward, supra at 264. Therefore, the trial court committed an error
of law in not striking the foreign judgment because a fatal defect appears upon
the face of the record. Since we have determined that Signature is entitled
to relief based upon this first issue, we will not address the second issue
related to notice.8
Order reversed. Judgment stricken. Jurisdiction relinquished.
Judge McLaughlin joins the memorandum.
Judge Strassburger files a concurring memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2019
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8 Our holding does not address the validity of the underlying judgment in New
Hampshire, but is confined to a narrow conclusion that Domus has not
successfully invoked the jurisdiction of the Pennsylvania trial court as a result
of its failure to comply with the strictures of the UEFJA.
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