Heller, F. v. The Glen Summit Co. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FREDERICK J. HELLER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
THE GLEN SUMMIT COMPANY : No. 328 MDA 2019
Appeal from the Order Entered February 1, 2019
In the Court of Common Pleas of Luzerne County Civil Division at No(s):
2009-05323
BEFORE: STABILE, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: FEBRUARY 5, 2020
Fredrick J. Heller appeals pro se from the February 1, 2019 order
sustaining the Preliminary Objections of The Glen Summit Company (“Glen
Summit”) and dismissing Heller’s Second Amended Complaint. We affirm.
We glean the following factual and procedural history from the certified
record. In March 2009, Heller commenced this action by filing a praecipe for
a writ of summons naming as defendants Glen Summit and David Hourigan.
Shortly thereafter, Heller asked the Sheriff to serve the writ upon the then-
current President of Glen Summit, Thomas MacFarland, and on David
Hourigan, a former President of Glen Summit. The Sheriff unsuccessfully
attempted to serve MacFarland twice, as indicated on the return of service
filed by the Luzerne County Sheriff’s office. Conversely, the Sheriff was able
to serve Hourigan, via his wife, who was home to receive service.
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Glen Summit obtained a rule to compel Heller to file a complaint. Heller
eventually filed a Complaint in June 2013, asserting causes of action against
Glen Summit only. He has not made any claim against Hourigan. Glen Summit
then filed Preliminary Objections, averring, inter alia, improper service, and
Heller responded with an Amended Complaint. Glen Summit re-filed its
Preliminary Objections, again raising improper service. After Heller filed yet
another Amendment Complaint, and Glen Summit resubmitted the same
Preliminary Objections, the trial court held oral argument in January 2019.
During oral argument, Heller contended that service upon Hourigan,
Glen Summit’s admitted past President, should have constituted sufficient
notice for Glen Summit. Heller also maintained that he could not discern the
proper corporate address for Glen Summit because the company used many
different addresses. Glen Summit disagreed that service was proper. It
emphasized that even after becoming aware that the Sheriff’s attempted
service on MacFarland had failed, Heller never sought to serve the company
again in the more than 10 years since Heller had instituted this litigation.
In an order dated February 1, 2019, the trial court sustained Glen
Summit’s Preliminary Objections and dismissed Heller’s Second Amended
Complaint. Heller filed a motion for reconsideration, which the trial court
denied. Heller filed the instant timely appeal and a court-ordered Rule 1925(b)
statement.
Heller raises a single issue: “Did the [trial court] err or abuse its
discretion in granting preliminary objections terminating [Heller’s] case due
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to a failure to make proper service upon [Glen Summit]?” Heller’s Br. at 4. He
contends that because the Sheriff served Hourigan, via his wife, the trial court
should have deemed Glen Summit sufficiently notified. He supports this
contention by averring that Glen Summit had used Hourigan’s home address
for corporate purposes and therefore the trial court should have found that
service to that address constituted effective service to an individual in charge
of a “corporate office.” Heller likens his case to the federal decision in
Giordani v. Hoffmann, 295 F. Supp. 463, 469 (E.D. 1969), where service
upon the defendant corporation’s in-house attorney was effective where the
attorney was in charge of the corporate offices at which the sheriff served
notice. Heller also argues that because Glen Summit used several addresses,
confusion regarding where to effectuate service was the cause of his failure to
make proper service. To this end, Heller baldly contends, without support,
that Glen Summit failed to maintain a registered office in Pennsylvania.
When reviewing an order sustaining preliminary objections, our
standard of review is de novo and our scope of review is plenary. Trexler v.
McDonald's Corp., 118 A.3d 408, 412 (Pa.Super. 2015). Therefore, this
Court must determine whether the trial court erred as a matter of law. Id.
“Service of process is a mechanism by which a court obtains jurisdiction
of a defendant, and therefore, the rules concerning service of process must
be strictly followed.” Id. (quoting Cintas Corp. v. Lee’s Cleaning Servs.,
700 A.2d 915, 917 (Pa, 1997)). “Without valid service, a court lacks personal
jurisdiction of a defendant and is powerless to enter judgment against him or
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her. Thus, improper service is not merely a procedural defect that can be
ignored when a defendant subsequently learns of the action against him or
her.” Cintas, 700 A.2d at 917-18.
Pennsylvania Rule of Civil Procedure 424 governs service of original
process on corporations:
Rule 424. Corporations and Similar Entities
Service of original process upon a corporation or similar
entity shall be made by handing a copy to any of the
following persons provided the person served is not a
plaintiff in the action:
(1) an executive officer, partner or trustee of the
corporation or similar entity, or
(2) the manager, clerk or other person for the time being in
charge of any regular place of business or activity of the
corporation or similar entity, or
(3) an agent authorized by the corporation or similar entity
in writing to receive service of process for it.
Pa.R.C.P. 424.
In this case, the trial court aptly found that Heller never properly
provided Glen Summit with service. Heller attempted to serve then-company
President MacFarland in 2009, but the Luzerne County Sheriff was not able to
do so, after two attempts. Heller concedes he never made another attempt to
serve Glen Summit. Further, although the Sheriff did effectively serve David
Hourigan, via his wife, such service is instantly inapposite because Hourigan,
as a past executive of the company, was not an individual eligible to accept
service on behalf of Glen Summit. Likewise, Hourigan’s wife, as a mere
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shareholder of the company, was also ineligible to accept service on behalf of
Glen Summit. See Pa.R.A.P. 424. Furthermore, contrary to Heller’s assertion,
Giordani is distinguishable because, unlike in that case, nothing here
suggests that Hourigan’s home was serving as a corporate office at the time
of service. We therefore cannot fairly characterize Hourigan as an individual
“in charge of any regular place of business or activity of the corporation.” See
Pa.R.C.P. 424(2).
Moreover, the trial court did not err by finding unavailing Heller’s
argument regarding his confusion over the proper address at which to serve
Glen Summit. As noted by the trial court, even if confusion about Glen
Summit’s address hindered him, Heller failed to take any action whatsoever
to effectuate service once he knew the Sheriff’s attempt to serve MacFarland
had failed in 2009. Heller does not contend that MacFarland’s address was
unknown to him. Heller never again attempted to effectuate service through
the Luzerne County Sheriff, nor did he ever petition the trial court to authorize
alternate service. See Pa.R.C.P. 430. Accordingly, we conclude that the trial
court properly sustained Glen Summit’s Preliminary Objections.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/05/2020
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