Liberty Bell Invest. v. Ava-G Properties ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
LIBERTY BELL INVESTMENTS, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
AVA-G PROPERTIES, LLC :
:
Appellant : No. 2207 EDA 2022
Appeal from the Order Entered July 25, 2022
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 210202594
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 07, 2023
Appellant, AVA-G Properties, LLC (“AVA-G”), appeals from the order
entered July 25, 2022, denying its petition to strike default judgment. We
affirm.
The procedural and factual history of this case is as follows. On February
26, 2021, Appellee, Liberty Bell Investments, LLC (“Liberty Bell”), initiated the
present matter by filing a praecipe for writ of summons. On March 22, 2021,
Liberty Bell personally served a copy of the writ of summons on AVA-G through
its registered agent Edward Johnson, Esquire (“Attorney Johnson”). Trial
Court Opinion, 11/23/22, at 3. “In a letter dated March 24, 2021, [however,
Attorney] Johnson [informed counsel for Liberty Bell] that his office ‘ha[d] not
represented AVA-G [] in quite some time and [that he] ha[d] no right to accept
any documents on its behalf.’” Id. As such, on April 20, 2021, Liberty Bell
served another copy of the writ of summons on Antoine Gardiner, the sole
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member of AVA-G, by personally serving a “tenant who refused to provide his
name” at 5713 Wyndale Avenue, Philadelphia, Pennsylvania. Id. at 2-3.
Then, on May 11, 2021, Liberty Bell served its complaint, setting forth claims
of breach of contract. Id. “The [c]ertificate of [s]ervice attached to the
[c]omplaint indicate[d] that service was made upon AVA-G [via] first class
mail at (i) 5713 Wyndale Avenue[, Philadelphia, Pennsylvania,] and (ii) [Post
Office] Box 447[, Ardmore, Pennsylvania].”1 Id. at 3. Thereafter, “AVA-G did
not file a responsive pleading.” Id. Thus, after serving a ten-day notice of
intent to enter default judgment pursuant to Pa.R.Civ.P. 237.1, Liberty Bell
requested, and obtained, a default judgment against AVA-G on November 16,
2021. Id.
On June 3, 2022, through counsel, AVA-G filed a petition to strike the
default judgment. In the petition, AVA-G averred that it was a “New Jersey
corporation,” Attorney Johnson was its registered agent, and its registered
office was in Hackensack, New Jersey. AVA-G’s Petition to Strike the Default
Judgment, 6/3/22, at ¶ 3. AVA-G further averred that Liberty Bell initiated
the instant action by “serving the summons on March 22, 2021, by personal
service [to] its registered agent[, Attorney] Johnson,” at AVA-G’s registered
office. Id. at ¶ 4. Nonetheless, AVA-G claimed that Liberty Bell failed to
properly serve its complaint on AVA-G. Id. at ¶¶ 15-23. Specifically, AVA-G
alleged that, instead of mailing the complaint to the Wyndale Avenue address
____________________________________________
1As we shall explain below, AVA-G, in its operating agreement, identified the
postal box in Ardmore, Pennsylvania as its principal place of business.
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or the postal box in Ardmore, Pennsylvania, Liberty Bell should have served
the complaint on AVA-G’s agent, Attorney Johnson, “whose address was, as
[Liberty Bell] well knew from the service of the [w]rit [of summons in],
Hackensack, N[ew Jersey], or [upon AVA-G at its’] business address, which
was [in] Teaneck, N[ew Jersey.] Id. at ¶ 21. Accordingly, AVA-G asserted
that, because “[Liberty Bell’s c]omplaint was never served” on AVA-G, a fatal
defect existed, requiring the trial court to grant its petition to strike the default
judgment. Id. at ¶ 23.
On July 25, 2022, the trial court entered an order denying AVA-G’s
petition to strike default judgment. See Trial Court Order, 7/25/22, at 1. In
its subsequent 1925(a) opinion, the trial court explained its’ reasons for
denying AVA-G’s petition to strike. Initially, the trial court found that Liberty
Bell properly served the writ of summons, the original process in this matter,
by personally serving Attorney Johnson, AVA-G’s registered agent. Trial Court
Opinion, 11/23/22, at 7; see Pa.R.Civ.P. 424(3). Accordingly, the trial court
considered Liberty Bell’s service of the complaint under Pa.R.Civ.P. 440. Trial
Court Opinion, 11/23/22, at 6 (explaining that “service of the subsequent
complaint when suit has been initiated by writ of summons is governed by
Rule 440”). Ultimately, the trial court held that Liberty Bell’s service of the
complaint, as secondary service, was properly accomplished when Liberty Bell
mailed a copy of the complaint to the postal box in Ardmore, Pennsylvania,
which was listed in AVA-G’s operating agreement as a valid mailing address
for AVA-G’s business operations. Trial Court Opinion, 11/23/22, at 6-7; see
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also Pa.R.Civ.P.440 (a)(2)(ii) (explaining that service is proper when no
attorney has entered his or her appearance for a party by “leaving a copy at
or mailing a copy to the last known address of the party to be served”).
AVA-G filed a timely notice of appeal on August 24, 2022. On appeal,
AVA-G raises the following issue:
Did the trial court commit an error of law in denying [AVA-G’s]
petition to strike the default judgment where on the face of
[the] record[,] the writ of summons was never served on AVA-G
and[,] therefore[,] the trial court never obtained personal
jurisdiction over [AVA-G] and did not have power to enter a
judgment against it?
AVA-G’s Brief at 2 (superfluous capitalization omitted).
We review a trial court's ruling on a petition to strike or open a confessed
judgment for an abuse of discretion or error of law. See, e.g., Ferrick v.
Bianchini, 69 A.3d 642, 647 (Pa. Super. 2013). “[T]he court abuses its
discretion if, in resolving the issue for decision, it misapplies the law or
exercises its discretion in a manner lacking reason.” Neducsin v. Caplan,
121 A.3d 498, 506 (Pa. Super. 2015).
As a preliminary matter, we find that the trial court correctly determined
that AVA-G was not entitled to relief because, based upon the record before
the trial court, no facial defect existed. Indeed, pursuant to the affidavit of
service filed by Liberty Bell, on March 22, 2021, Liberty Bell personally served
the writ of summons on Attorney Johnson, AVA-G’s registered agent. Affidavit
of Service, 4/2/21, at 1. Shortly thereafter, Attorney Johnson informed
Liberty Bell that he was no longer affiliated with AVA-G; nevertheless, more
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than a year later, AVA-G, in its petition to strike default judgment, averred
that Attorney Johnson remained, in fact, its registered agent. See AVA-G’s
Petition to Strike Default Judgment, 6/3/22, ¶ 4 (claiming that Liberty Bell
initiated the instant action by “serving the summons on March 22, 2021, by
personal service [to AVA-G’s] registered agent. . . [Attorney] Johnson”).
Accordingly, based upon AVA-G’s own filing, Liberty Bell properly served
original process, i.e., the writ of summons, upon AVA-G. See Pa.R.Civ.P.
424(3) (explaining that “[s]ervice of original process upon a corporation or a
similar entity may be made by handing a copy to . . . an agent authorized by
the corporation or similar entity in writing to receive service of process for it”).
Because Liberty Bell properly initiated this matter through personal service of
the writ of summons upon Attorney Johnson, AVA-G’s registered agent, the
service of the complaint in this action was governed by Pa.R.Civ.P. 440
(outlining the rules for service of legal papers other than original process).
Because Liberty Bell properly initiated this matter through the personal service
of the writ of summons upon Attorney Johnson AVA-G’s registered agent,
Pa.R.Civ.P. 440(a)(2)(ii) permitted Liberty Bell to serve the complaint “by
leaving a copy at or mailing a copy to [AVA-G’s] last known address.” Id.That is exactly what Liberty Bell did. In particular, Liberty Bell mailed, via first
class mail, a copy of the complaint to the postal box in Ardmore, Pennsylvania,
which was identified in AVA-G’s operating agreement as its primary business
address. See Liberty Bell’s Memorandum of Law in Opposition to [AVA-G’s]
Motion to Strike and/or Vacate the Default Judgment, 6/23/22, at Exhibit D.
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Accordingly, based upon the record before it, the trial court properly denied
AVA-G’s petition to strike default judgment.
On appeal, however, AVA-G changes track and now argues that, at the
time Liberty Bell served the writ of summons, Attorney Johnson was not
AVA-G’s registered agent. See AVA-G’s Brief at 14-19. Undoubtedly, this
wholly contradicts AVA-G’s averments in its petition to strike default
judgment. See AVA-G’s Petition to Strike the Default Judgment, 6/3/22, at
¶¶ 4 and 21 (claiming that Attorney Johnson was AVA-G’s registered agent
and Liberty Bell failed to abide by the rules of civil procedure when it failed to
serve its complaint upon him). It is apparent, therefore, that AVA-G, for the
first time on appeal, sets forth factual allegations completely contrary to those
presented before the trial court. This is impermissible under our appellate
rules. As such, we conclude AVA-G failed to preserve for appellate review the
claims based upon its newly-introduced facts. See Pa.R.A.P. 302(a) (“Issues
not raised in the trial court are waived and cannot be raised for the first time
on appeal.”).
Moreover, further review of the record yields additional grounds upon
which to find that AVA-G waived its appellate claims. Indeed, we note that,
regardless, we cannot consider the issue AVA-G currently sets forth on appeal
because it is not properly preserved. It is well-settled that, “[w]henever a
trial court orders an appellant to file a concise statement of [errors]
complained of on appeal pursuant to Rule 1925(b), the appellant must comply
in a timely manner.” Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa. Super.
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2011) (emphasis, citations and quotations omitted). Thus, when ordered, an
appellant must file a timely concise statement, raising all issues it intends to
subsequently raise on appeal. The “failure to comply with the minimal
requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues
raised.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88
A.3d 222, 224 (Pa. Super. 2014) (en banc); see also Commonwealth v.
Castillo, 888 A.2d 775, 780 (Pa. 2005) (explaining that an untimely concise
statement waives all claims on appeal); Commonwealth v. Lord, 719 A.2d
306, 309 (Pa. 1998) (“[F]rom this date forward . . . [a]ppellants must comply
whenever the trial court orders them to file a [s]tatement of [errors]
[c]omplained of on [a]ppeal pursuant to Rule 1925. Any issues not raised in
a 1925(b) statement will be deemed waived.”).
Herein, the record reflects that, after AVA-G filed a timely appeal, on
August 31, 2022, the trial court ordered it to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days of the
docketing of the order, i.e., on or before September 21, 2022. Trial Court
Order, 8/31/22, at 1. The order also informed AVA-G that “[a]ny issues not
properly included in the [s]tatement timely filed and served pursuant to
Pa.R.A[.]P. 1925(b) shall be deemed waived.” Id. at 2. Despite the trial
court’s order, AVA-G filed its Rule 1925(b) statement on September 23, 2022.
AVA-G’s 1925(b) statement, therefore, was manifestly untimely, rendering its
claim waived on appeal. See Castillo, supra.
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In addition, in AVA-G’s Rule 1925(b) statement, AVA-G set forth the
following claims of error:
1. The trial court committed an error of law/abuse of discretion
in denying [AVA-G’s] petition to strike the default judgment
based on a lack of service of the complaint.
2. There was a defect on the face of the record establishing that
the complaint was not served on [AVA-G], namely:
a. The summons was served on [AVA-G’s] agent in New
Jersey;
b. The complaint was not served on [AVA-G’s] agent in
New Jersey, but instead was served at 5713 Wyndale
Avenue;
c. As the [Office of Property Assessment] records
attached to the petition to strike established, the place
where the complaint was served – 5713 Wyndale
Avenue, is not owned by [AVA-G] . . . but instead is a
rental properly owned by Antoine Gardiner.
d. The place where the complaint was served is not a
property associated with [AVA-G] and has no
connection with [AVA-G];
e. Accordingly, on the face of the record, [AVA-G] was
not served the complaint at any address associated
with [AVA-G];
f. Even where a writ of summons is properly served, the
failure to properly serve the complaint is a fatal
defect that requires the striking of a default judgment.
Clymire v[.] McKivitz, [504 A.2d 937, 939 (Pa.
Super. 1986)];
g. As the [C]ourt reasoned, “[the service of the writ of
summons] imposes no duty whatever upon the
defendant until the plaintiff files and serves his
complaint, to which the defendant will be required to
plead[.]” Clymire, [504 A.2d at 939] (emphasis in
original).
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h. In this case, the face of the record established that the
complaint was never served on [AVA-G] and
therefore[,] the trial court committed an error of law
in denying [AVA-G’s] petition to strike default
judgment[.]
AVA-G’s Rule 1925(b) Concise Statement, 9/23/22, at *1-*2 (unpaginated)
(emphasis added). Although AVA-G challenged the service of Liberty Bell’s
complaint in its Rule 1925(b) statement, in its appellate brief, AVA-G presents
the following issue for our review:
Did the trial court commit an error of law in denying [AVA-G’s]
petition to strike the default judgment where on the face of
[the] record[,] the writ of summons was never served on
AVA-G and[,] therefore[,] the trial court never obtained
personal jurisdiction over [AVA-G] and did not have power to
enter a judgment against it?
Appellant’s Brief at 2-3 (emphasis added) (superfluous capitalization omitted).
Hence, AVA-G completely abandons its earlier claim alleging Liberty Bell failed
to properly serve its complaint and, on appeal, now challenges Liberty Bell’s
alleged failure to properly serve its’ writ of summons. See id. at 13-26.
Because AVA-G failed to raise the latter issue in its 1925(b) concise statement,
it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”); see also Lord, supra.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/7/2023
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