Modern Muzzle Loading, Inc. v. Gowen, T. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MODERN MUZZLE LOADING, INC. : IN THE SUPERIOR COURT OF
D/B/A KNIGHT RIFLES : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1514 EDA 2018
THOMAS F. GOWEN & SONS, INC. :
D/B/A/GOWEN & SONS :
Appeal from the Order April 30, 2018
In the Court of Common Pleas of Delaware County Civil Division at
No(s): No. 2017-009549
BEFORE: OLSON, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 19, 2019
Appellant, Modern Muzzle Loading, Inc. d/b/a Night Rifles (Modern
Muzzle), appeals from an order entered on April 30, 2018 which struck a
foreign default judgment entered in its favor and against Thomas F. Gowen &
Sons, Inc. d/b/a Gowen & Sons (TFG). We affirm.
The record reflects the following facts and procedural history. In April
2016, Modern Muzzle filed an action against TFG in McMinn County,
Tennessee. Anthony M. Gowen, the president of TFG, was personally served
with notice of that action by a process server in Pennsylvania on May 5, 2016.
TFG thereafter did not enter a defense in the Tennessee action and Modern
Muzzle obtained a default judgment in the amount of $7,447.35 on May 31,
2016.
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* Former Justice specially assigned to the Superior Court.
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Pursuant to 42 Pa.C.S.A. § 4306, the Uniform Enforcement of Foreign
Judgments Act (the Act), Modern Muzzle transferred the Tennessee judgment
to Pennsylvania by filing a copy of the judgment with the office of judicial
support in the Court of Common Pleas of Delaware County on November 14,
2017. Modern Muzzle then filed a writ of execution against TFG and BB&T
Bank, as garnishee, on November 20, 2017. TFG filed a “Petition to Open a
Judgment of Default and Amend or Correct the Judgment and Stay Execution
or Garnishment” (hereafter referred to as “petition”) on January 9, 2018.
TFG’s petition asked the trial court to vacate the judgment and direct TFG to
file an answer to the underlying Tennessee action. In support of these
requests, TFG’s petition averred that Modern Muzzle failed to comply with the
Pennsylvania Rules of Civil Procedure in serving the original, underlying
complaint and that Modern Muzzle lacked capacity to enforce a foreign
judgment in Pennsylvania because it was not registered to conduct business
within the Commonwealth.
Modern Muzzle filed a response and brief in opposition to TFG’s petition,
claiming that TFG had asked the court to open the Tennessee judgment and
compel the parties to litigate the case on the merits in Pennsylvania, which
the court lacked authority to do. In response, TFG filed a reply brief asserting
that it was not subject to personal jurisdiction in Tennessee. TFG also filed a
preacipe to amend that sought to convert its original petition into a petition to
strike the Tennessee judgment. In addition, TFG sought to incorporate the
arguments raised in its reply brief into its original petition.
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The trial court convened oral argument on TFG’s petition on April 23,
2018. Thereafter, on April 30, 2018, the trial court entered an order striking
the Tennessee judgment. Modern Muzzle filed a notice of appeal on May 14,
2018 and a court-ordered concise statement of errors complained of on appeal
on June 4, 2018. See Pa.R.A.P. 1925(b). The trial court filed its Rule 1925(a)
opinion on July 17, 2018. Among other things, the court explained in its
opinion that the Tennessee courts lacked jurisdiction over TFG since Modern
Muzzle failed to effect proper service upon TFG. See Trial Court Opinion,
7/17/18, at 1 and 6. Because Tennessee lacked jurisdiction over TFG,
Pennsylvania was not obligated to honor the underlying foreign judgment
entered in this case. See id.
On June 19, 2018, shortly after the instant appeal was filed, this Court
issued an order directing Modern Muzzle to show cause why its appeal was
not subject to quashal. See Superior Court Order, 6/19/18, at 1. Citing
Pa.R.A.P. 311(a)(1) and interpretive case law, our order noted that orders
opening, vacating, or striking off judgments were not appealable as of right.
See id. In its June 20, 2018 response, Modern Muzzle argued that the
decisions cited in our show cause order were distinguishable from this case
and that an order refusing to enforce a foreign judgment is appealable as of
right. By order entered on July 16, 2018, we discharged our show cause order
and referred issues concerning the finality and appealability of the trial court’s
April 30, 2018 to this panel for consideration. See Superior Court Order,
7/16/18, at 1. The issues are now ripe for review.
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In its brief, Modern Muzzle raises the following issues for our
consideration.
Is an order refusing to enforce a foreign judgment appealable as
of right?
[Did the trial court commit an error of law or abuse its discretion
in striking Modern Muzzle’s Tennessee judgment based upon
factual and/or legal grounds that were not included in TFG’s
original petition?]
[Did the trial court commit an error of law by striking Modern
Muzzle’s Tennessee judgment because Modern Muzzle failed to
serve TFG pursuant to the Pennsylvania Rules of Civil Procedure?]
[Did the trial court commit an error of law or abuse its discretion
in striking Modern Muzzle’s Tennessee judgment due to improper
service where TFG was personally served with a summons and
affidavit of sworn account and Tennessee law provides that a party
may commence a lawsuit through a sworn account?]
Modern Muzzle’s Brief at 4 (issues reordered to facilitate discussion).
The first issue we address is whether the April 30, 2018 order from
which Modern Muzzle appeals constitutes a final, appealable order. The
appealability of an order implicates the jurisdiction of this Court and raises a
question of law. See Carmen Enterprises, Inc. v. Murpenter, LLC, 185
A.3d 380, 388 (Pa. Super. 2018), appeal denied, 201 A.3d 725 (Pa. 2019).
As such, our scope of review is plenary and our standard of review is de novo.
Id.
“[I]t is incumbent [upon this Court] to determine, sua sponte when
necessary, whether [an] appeal is taken from an appealable order.” Kulp v.
Hrivnak, 765 A.2d 796, 798 (Pa. Super. 2000) (citation omitted). Generally
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speaking, this Court may assume jurisdiction over appeals taken from final
orders. See Angelichio v. Myers, 110 A.3d 1046, 1048-1049 (Pa. Super.
2015). In relevant part, Rule 341 of the Pennsylvania Rules of Appellate
Procedure defines a final order as follows:
Rule 341. Final Orders; Generally
(a) General rule. Except as prescribed in subdivisions (d)
[related to appeals from the Superior Court and Commonwealth
Court], and (e) [addressing criminal orders] of this rule, an appeal
may be taken as of right from any final order of an administrative
agency or lower court.
(b) Definition of final order. A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) is expressly defined as a final order by statute; or
(3) is entered as a final order pursuant to subdivision (c) of
this rule.
Pa.R.A.P. 341.
Notwithstanding Pa.R.A.P. 341, our appellate rules, in certain
circumstances, permit appeals from interlocutory orders. As our Supreme
Court explained:
in addition to an appeal from final orders of the Court[s] of
Common Pleas, our rules provide the Superior Court with
jurisdiction in the following situations: interlocutory appeals
that may be taken as of right, Pa.R.A.P. 311; interlocutory
appeals that may be taken by permission, Pa.R.A.P. [312];
appeals that may be taken from a collateral order, Pa.R.A.P.
313; and appeals that may be taken from certain distribution
orders by the Orphans’ Court Division, Pa.R.A.P. 342.
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Commonwealth v. Garcia, 43 A.3d 470, 478 n.7 (Pa. 2012) (internal
quotations omitted), quoting McCutcheon v. Phila. Elec. Co., 788 A.2d 345,
349 n.6 (Pa. 2002).
Pennsylvania Rule of Appellate Procedure 311 holds particular relevance
in the instant case. It provides that an appeal may be taken as of right from
an order refusing to open, vacate, or strike off a judgment; appeals from
orders that open, vacate, or strike off judgments are not appealable. See
Pa.R.A.P. 311(a)(1). Rule 311(a)(1) states:
Rule 311. Interlocutory Appeals as of Right
(a) General rule. An appeal may be taken as of right and without
reference to Pa.R.A.P. 341(c) from:
(1) Affecting judgments. An order refusing to open,
vacate or strike off a judgment. If orders opening,
vacating or striking off a judgment are sought in the
alternative, no appeal may be filed until the court has
disposed of each claim for relief.
Pa.R.A.P. 311(a)(1).
The parties dispute the appealability of the trial court’s April 30, 2018
order. To establish that the order was final and appealable, Modern Muzzle
cites our prior decision in Greate Bay Hotel & Casino, Inc. v. Saltzman,
609 A.2d 817 (Pa. Super. 1992) (Greate Bay) and contends that the trial
court effectively refused to enforce the Tennessee judgment. See Modern
Muzzle’s Response to Show Cause Order, 6/20/18, at 4, quoting Greate Bay,
609 A.2d at 818. More specifically, Modern Muzzle asserts that the court’s
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refusal to enforce the Tennessee judgment concluded all litigation pertaining
to the matter in Pennsylvania since no Pennsylvania court had the power or
authority to entertain the merits of the underlying Tennessee dispute. See
Greate Bay, 609 A.2d at 818. As such, Modern Muzzle characterizes the trial
court’s order as final and appealable under Pa.R.A.P. 341. TFG maintains that
the trial court’s order did not terminate the litigation since additional litigation
was needed to resolve issues surrounding the garnishment of funds in its bank
account. See TFG’s Brief at 9 and 12-18. Thus, according to TFG, the April
30, 2018 order – which struck off the Tennessee judgment - was interlocutory
and unappealable.
Great Bay addressed the appealability of an order purporting to open a
foreign default judgment in the context of circumstances quite similar to those
currently before us. There, Greate Bay, a New Jersey corporation,
commenced an action in New Jersey against Mark Saltzman, a Philadelphia
resident, to recover unpaid gambling debts. When Saltzman failed to appear
and defend against Greate Bay’s claims, a default judgment was entered
against him. Greate Bay eventually transferred the judgment to the Court of
Common Pleas of Philadelphia County pursuant to the Act and obtained a writ
of execution. Thereafter, the trial court granted Saltzman’s petition to open
the judgment. After Greate Bay appealed, the court issued an opinion stating
that its order was not appealable.
In rejecting the trial court’s conclusion, we said:
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A final order is one which terminates the litigation or precludes
further action in the trial court. In re Adoption of E.J.W., 515
A.2d 41, 43 (Pa. Super. 1986), citing Peterson v. Philadelphia
Suburban Transportation Co., 255 A.2d 577 (Pa. 1969); Dash
v. Wilap Corporation, 495 A.2d 950 (Pa. Super. 1985). Whether
an order is final “cannot necessarily be ascertained from the face
of a decree alone, nor simply from the technical effect of the
adjudication. The finality of an order is a judicial conclusion which
can be reached only after an examination of its ramifications.”
Pugar v. Greco, 394 A.2d 542, 545 (Pa. 1978); see also Gordon
v. Gordon, 439 A.2d 683 (Pa. Super. 1981), affirmed, 449 A.2d
1378 (Pa. 1982). Therefore, how the trial court may characterize
an order is not controlling, as its finality is determined by its effect.
In re Adoption of E.J.W., supra.
The trial court's order in the instant case is final. There is no
further litigation available to the plaintiff-appellant in
Pennsylvania. When the trial court “opened” the judgment
which had been transferred to Pennsylvania from New
Jersey, the effect of its order was to refuse to enforce the
New Jersey judgment. The Pennsylvania court lacked both
the power and jurisdiction to open the New Jersey
judgment and require that the merits of appellant's claim
be litigated in Pennsylvania. Only a court of competent
jurisdiction in New Jersey could open the default judgment
which had been entered in New Jersey. When the
judgment became final in New Jersey and was thereafter
filed in Pennsylvania, the Pennsylvania court could either
enforce the judgment or refuse to enforce the judgment.
When the Philadelphia court refused to enforce the
judgment, its order was appealable. Because the trial
court's order was final, it was not the same as and did not
have the effect of an order opening a Pennsylvania
judgment. The latter is interlocutory and not appealable
under Pa.R.A.P. 311(a)(1).
Greate Bay, 609 A.2d at 818 (parallel citations omitted).
Although an order opening a domestic Pennsylvania judgment is
interlocutory and not appealable, we conclude, pursuant to the rationale
employed in Greate Bay, that the trial court’s order in this case was final.
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Modern Muzzle’s monetary claims against TFG were reduced to judgment in
Tennessee and the judgment was transferred to Pennsylvania under the Act.
When the trial court struck off the judgment, the effect was to refuse
enforcement. As no Pennsylvania court possessed either the power or
authority to compel the parties to litigate the merits of the underlying
Tennessee action in Pennsylvania, the matter came to a conclusion when the
court refused to enforce the judgment and no further litigation was available
to Modern Muzzle in Pennsylvania.
We do not agree with TFG’s position that issues surrounding the
garnishment of funds held in its bank account preclude the exercise of
appellate jurisdiction under Rule 341. See TFG’s Brief at 16 (trial court’s order
was not final because it did not dispose of all claims and all parties) and 21
(“[Modern Muzzle’s] appeal was interlocutory in nature because the issue of
the garnished funds remained outstanding at the time that [Modern Muzzle]
filed the within appeal.”). TFG, in its brief, does not dispute that the amount
of the Tennessee judgment is readily ascertainable from the document but,
instead, merely attacks the validity of the judgment. Since no further
litigation was required to determine the extent of TFG’s obligations under the
Tennessee judgment, the order striking off the judgment was final and
appealable. See Greate Bay, 609 A.2d at 818.
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We turn now to Modern Muzzle’s challenges alleging that the trial court
erred in striking off the Tennessee judgment against TFG. The following
principles govern our review of such claims.
An appeal regarding a petition to strike a default judgment
implicates the Pennsylvania Rules of Civil Procedure. Oswald v.
WB Public Square Associates, LLC, 80 A.3d 790, 793 (Pa.
Super. 2013). Issues regarding the operation of procedural rules
of court present us with questions of law. Id. Therefore, “our
standard of review is de novo and our scope of review is plenary.”
Id.
“A petition to strike a judgment is a common law proceeding which
operates as a demurrer to the record. A petition to strike a
judgment may be granted only for a fatal defect or irregularity
appearing on the face of the record.” Midwest Financial
Acceptance Corp. v. Lopez, 78 A.3d 614, 622–623 (Pa. Super.
2013). “[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, [80
A.3d at 794]. A fatal defect on the face of the record denies the
prothonotary the authority to enter judgment. Erie Ins. Co. v.
Bullard, 839 A.2d 383, 388 (Pa. Super. 2003). When a
prothonotary enters judgment without authority, that judgment is
void ab initio. Id. “When deciding if there are fatal defects on
the face of the record for the purposes of a petition to strike a
[default] judgment, a court may only look at what was in the
record when the judgment was entered.” Cintas Corp. v. Lee's
Cleaning Services, Inc., 700 A.2d 915, 917 (Pa. 1997).
A judgment is void on its face if one or more of three
jurisdictional elements is found absent: jurisdiction of the
parties; subject matter jurisdiction; or the power or authority
to render the particular judgment. The term “jurisdiction”
relates to the competency of the individual court,
administrative body, or other tribunal to determine
controversies of the general class to which a particular case
belongs. Moreover, it is never too late to attack a judgment
or decree for want of jurisdiction, as any such judgment or
decree rendered by a court which lacks jurisdiction of the
subject matter or the person is null and void, and can be
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attacked by the parties at any time. A petition to strike a
judgment founded on a jurisdictional deficiency is therefore
not subject to the same “timeliness” considerations as a
petition to open the judgment.
Flynn v. Casa Di Bertacchi Corp., 674 A.2d 1099, 1105 (Pa.
Super. 1996).
Green Acres Rehabilitation and Nursing Center v. Sullivan, 113 A.3d
1261, 1267-1268 (Pa. Super. 2015) (parallel citations omitted) (Green
Acres).
Lack of personal jurisdiction will not only support an order granting a
motion to strike a judgment, it also serves as grounds to reject enforcement
of a foreign judgment. This Court previously said that judgments entered in
our sister states are
entitled to full faith and credit in Pennsylvania so long as “there
was jurisdiction by the court which originally awarded the
judgment, see Stambaugh v. Stambaugh, 329 A.2d 483 (Pa.
1974), and the defendant had an opportunity to appear and
defend, see Morris Lapidus Associates v. Airportels, Inc.,
361 A.2d 660 (Pa. Super. 1976).” Everson v. Everson, 431 A.2d
889, 895-896 (Pa. 1981). The courts in Pennsylvania will refuse
to give full faith and credit to a foreign judgment if it was obtained
in derogation of a basic, due process right of the defendant.
Hanson v. Denckla, 357 U.S. 235, 255 (1958). However, when
“the court of another state has purported to act on the merits of
a case, its jurisdiction to do so and the regularity of its proceedings
are presumptively valid.” Barnes v. Buck, 346 A.2d 778, 782
(Pa. 1975). The party challenging the validity of the judgment,
therefore, bears the burden of showing any irregularity in the
proceedings. Commonwealth, Department of Transportation
v. Granito, 452 A.2d 889, 891 (Pa. Cmwlth. 1982).
Greate Bay, 609 A.2d at 819 (parallel citations omitted), quoting Noetzel v.
Glasgow, Inc., 487 A.2d 1372, 1375-1376 (Pa. Super. 1985).
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Initially, Modern Muzzle challenges the order granting TFG’s petition to
strike by asserting that the trial court erred in considering factual issues and
grounds for relief that were not raised in TFG’s initial filing. Citing Pa.R.C.P.
206.1(b), Modern Muzzle argues that all grounds for relief asserted in support
of a petition to strike and/or open a default judgment must be included in a
single petition. See Modern Muzzle’s Brief at 14, quoting Pa.R.C.P. 206.1(b)
(“A petition shall specify the relief sought and state the material facts which
constitute the grounds therefor. All grounds for relief, whether to strike or
open a default judgment, shall be asserted in a single petition.”) (emphasis
omitted). Modern Muzzle maintains that the trial court impermissibly “based
its decision to strike the [Tennessee j]udgment on the additional grounds
raised in TFG’s [r]eply [materials].” Modern Muzzle’s Brief at 17.
We agree with the trial court that this claim is meritless. See Trial Court
Opinion, 7/17/18, at 5. TFG’s original petition alleged, among other things,
that there was a conflict between the procedural rules of Pennsylvania and
Tennessee as to who may serve original process, that Pennsylvania’s rules
should apply because it had the most significant relationship to the underlying
dispute, and that, as a result, service of original process should have been
accomplished by a sheriff and not a process server as occurred in this case.
See Petition, 1/9/18, at 6. Because service of original process was improper,
TFG asserted that the Tennessee judgment should be opened because the
court had no jurisdiction over TFG and lacked power to enter the challenged
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judgment. See Petition, 1/9/18, at 5 and 7. As we shall explain below, the
trial court entered a sustainable ruling confined strictly to these grounds.
Hence, Modern Muzzle is not entitled to relief on its claim that the trial court
erred or abused its discretion in striking the Tennessee judgment based upon
legal arguments and factual assertions that were not advanced by TFG in its
opening petition.1
Modern Muzzle next argues that the trial court committed an error of
law by striking the Tennessee judgment on grounds that Modern Muzzle failed
to serve TFG pursuant to the Pennsylvania Rules of Civil Procedure. To
recount, Modern Muzzle commenced this litigation by filing a collection action
in Tennessee on April 19, 2016. Thereafter, Modern Muzzle retained a process
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1 We also reject Modern Muzzle’s passing claim that TFG’s original petition
should be read only as a petition to “open” since it was captioned as such and
since it expressly asked the trial court to open the Tennessee judgment, which
the court lacked authority to do. See Greate Bay, 609 A.2d at 818
(Pennsylvania court lacked power and authority to open judgment entered in
New Jersey; only court of competent jurisdiction in New Jersey could do so).
We acknowledge TFG’s procedural misstep but, under the circumstances, shall
view its initial filing as a petition to strike the judgment. We note, as indicated
above, that TFG’s opening submission asserted improper service and lack of
jurisdiction, which constitute cognizable grounds for relief in the context of a
petition to strike off a judgment transferred from another state. In addition,
the trial court accepted TFG’s oral request, at the April 23, 2018 hearing, to
correct the title of its petition from a petition to open to a petition to strike.
See Trial Court Opinion, 7/17/18, at 2. In view of these circumstances, we
perceive no error in the trial court’s decision to overlook TFG’s failure to
caption its initial filing as a petition to strike. See Green Acres, 113 A.3d at
1272 (“Under the doctrine of substantial compliance, the trial court may
overlook any procedural defect that does not prejudice a party's rights.”)
(citation and internal quotation omitted).
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server who served a summons and civil warrant on a TFG officer in
Pennsylvania on May 5, 2016. Modern Muzzle claims on appeal that because
it commenced and obtained a judgment in the underlying action in Tennessee,
it could rely upon Tennessee’s procedural rules to effectuate service of original
process in Pennsylvania. TFG objected, claiming in its petition that
Pennsylvania and Tennessee procedural rules were in conflict, that
Pennsylvania had a more significant relationship to the dispute, and that a
sheriff needed to serve original process in accordance with Pennsylvania
procedural law. Without valid original service, TFG maintained that the
Tennessee court lacked jurisdiction to enter the judgment. The trial court
agreed with TFG and struck Modern Muzzle’s Tennessee judgment.
We begin our analysis by reviewing the relevant procedural rules in both
states. Pursuant to Rule 4.01 of the Tennessee Rules of Court, “[a] summons
and complaint may be served by any person who is not a party and is not less
than 18 years of age,” so long as the individual is identified by name and
address on the return of service. Tn.R.C.P. 4.01(2). When service is to be
made on a foreign corporation doing business in Tennessee, Rule 4.04(4)
allows service through the delivery of a copy of the summons and of the
complaint to an officer or managing agent of the corporation. Tn.R.C.P.
4.04(4). Lastly, in relevant part, Tennessee permits service upon defendants
outside the state “by any form of service authorized for service within this
state pursuant to Rule 4.04,” Tn.R.C.P. 4.05(1)(a), or “in any manner
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prescribed by the law of the state in which service is effected for an action in
any of the courts of general jurisdiction in that state.” Tn.R.C.P. 4.05(1)(b).
In Pennsylvania, with limited exceptions not applicable here, “original process
shall be served within the Commonwealth only by the sheriff.” Pa.R.C.P.
400(a) (emphasis added). A conflict emerges from a comparison of the
procedural rules of Tennessee and Pennsylvania since Tennessee allows
service of process outside the state by any individual over 18 who is not a
party to the action while Pennsylvania only permits a sheriff to effect service
within the Commonwealth.
The parties have not cited, and we have been unable to locate, an
analogous case considering the validity of a foreign judgment where the
judgment holder made original service in a manner that complied with a
procedural rule of the rendering state but which stood in conflict with a
corresponding rule of Pennsylvania procedure. In the absence of guiding
precedent that addressed such a conflict, the trial court looked to
Pennsylvania’s choice of law principles. See Trial Court Opinion, 7/17/18, at
6. Under Pennsylvania law, a choice of law issue is determined by ascertaining
which state possesses the greater interest in the application of its law to the
pending dispute. See, e.g., McDonald v. Whitewater Challengers, Inc.,
116 A.3d 99, 109 (Pa. Super. 2015), appeal denied, 130 A.3d 1291 (Pa.
2015). This inquiry turns on the nature and quality each state has with the
particular issue before the court. See id. Because the contract between
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Modern Muzzle and TFG was performed in Pennsylvania, the trial court
concluded that Pennsylvania’s procedural rules should govern the service of
original process in Pennsylvania. See Trial Court Opinion, 7/17/18, at 6.
Hence, it found that service of process was invalid.
The trial court did not err in concluding that Pennsylvania’s procedural
rules should govern the service of process issue in this matter. The United
States Supreme Court has explained that, “[t]he Full Faith and Credit Clause
[of the United States Constitution] does not compel a state to substitute the
statutes of other states for its own statutes dealing with a subject matter
concerning which it is competent to legislate.” Sun Oil Co. v. Wortman, 486
U.S. 717, 722 (1988). Moreover, since a state is competent to enact
provisions relating to judicial procedures, it may apply its own procedural rules
to cases litigated in its courts. See id. Pennsylvania follows these principles.
“Whenever Pennsylvania is the chosen forum state for a civil action, our state's
procedural rules[,] i.e. the Pennsylvania Rules of Civil Procedure[,] govern, no
matter what substantive law our courts must apply in resolving the underlying
legal issues.” Ferraro v. McCarthy–Pascuzzo, 777 A.2d 1128, 1137 (Pa.
Super. 2001) (citation modified).
In this case, however, Tennessee was the chosen forum, not
Pennsylvania. Relying on this fact, Modern Muzzle argues that it was entitled
to make service pursuant to Tennessee’s procedural rules. See Modern
Muzzle’s Brief at 21. Modern Muzzle’s contention is undermined, somewhat,
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by the plain terms of Rule 4.05(1) of the Tennessee Rules of Court. That
provision permits service upon out-of-state defendants by any method
permitted within Tennessee or by any manner prescribed by the law of the
state in which service is to be effected. See supra. Since Tennessee permits
out-of-state service by means of domestically approved service or by means
adopted by her sister states, Tennessee has, at best, a diminished interest in
the method used to achieve service on foreign defendants. For this reason,
the trial court did not err in holding that Pennsylvania’s procedural rules
applied and that service was defective in this case. See McDonald, 116 A.3d
at 107 (explaining that if only one jurisdiction's governmental interests would
be impaired by the application of the other jurisdiction's law, a court must
apply the law of the state whose interests would be harmed if its law were not
applied).
Finally, Modern Muzzle argues that the trial court erred or abused its
discretion in striking Modern Muzzle’s Tennessee judgment due to improper
service since a TFG officer was personally served with a summons and affidavit
of sworn account and Tennessee law provides that a party may commence a
lawsuit through such a form of service. Because we have concluded that
service was invalid owing to Modern Muzzle’s use of a process server and not
a sheriff, we need not consider Modern Muzzle’s final claim.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/19
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