Edwards, W. v. Checkers Drive-in ( 2023 )

J-A14015-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
WILLIAM EDWARDS : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHECKERS DRIVE-IN RESTAURANTS, :
INC., SRI GUNINA, LLC, PANDYA :
RESTAURANTS, LLC, PANDYA REAL : No. 2252 EDA 2022
ESTATE HOLDINGS, LLC, PANDYA :
MANAGEMENT, LLC, BRANDON :
VENABLE, JIGNESH PANDYA, THE :
ROHAN GROUP, LLC, JOHN DOE #1, :
JANE DOE #1, JOHN DOE #2, JOHN :
DOE #3, JOHN DOE #4, JOHN DOE :
LLC OR CORPORATION #1, JOHN :
DOE LLC OR CORPORATION #2, :
JOHN DOE LLC OR CORPORATION :
#3, JOHN DOE LLC OR :
CORPORATION #4 :
:
:
APPEAL OF: JIGNESH PANDYA :
Appeal from the Order Entered June 29, 2022
In the Court of Common Pleas of Lehigh County Civil Division at No(s):
2020-C-01336
BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J.
MEMORANDUM BY DUBOW, J.: FILED OCTOBER 2, 2023
Appellant, Jignesh Pandya, appeals from the order entered by the Lehigh
Court of Common Pleas on June 29, 2022, denying Appellant’s Petition to Open
and/or Strike Default Judgment. After careful review, we affirm the order.
In June 2020, Appellee, William Edwards, filed a Writ of Summons and
a Complaint naming numerous defendants, including Appellant, in regard to
J-A14015-23
an alleged assault of Appellee by an employee of the Checkers Drive-in
Restaurant in Allentown.1 Appellee filed claims against Appellant sounding in,
inter alia, negligent supervision and vicarious liability. Appellee’s initial
attempts to serve Appellant and the Pandya Defendants were unsuccessful.
In September and October 2020, Appellee filed Amended and Second
Amended Complaints in response to preliminary objections filed by Checkers.
In December 2020, Appellee filed a Praecipe to Reissue the Writ of
Summons. Relevant to the instant appeal, on December 21, 2020, Appellee
filed an Acceptance of Service, signed on that date by “Krupa Patel” stating
that “I hereby accept service of the Reissued Writ of Summons on behalf of
the defendants named above and certify that I am authorized to do so.”2
Acceptance of Service, 12/21/20. The “defendants named above” included
Appellant and the other Pandya Defendants.
Appellee additionally filed an Affidavit of Service stating that he mailed
the Second Amended Complaint to Appellant and the other defendants on
December 31, 2020, to which Appellant did not respond. On February 4, 2021,
Appellee filed an Affidavit of Service, indicating that he mailed ten-day notices
____________________________________________
1 Appellee named various individuals and entities as defendants, including
Checkers Drive-In Restaurants, Inc. (“Checkers”) as well as Appellant and the
following entities connected to Appellant: Sri Gunina, LLC; Pandya
Restaurants, LLC; Pandya Real Estate Holdings, LLC; Pandya Management,
LLC; and The Rohan Group, LLC (collectively, “Pandya Defendants”). Only
Appellant filed the current appeal.
2 The court later found that Ms. Patel served as controller for Appellant and
the Pandya Defendants for fifteen years. Tr. Ct. Op., 6/29/22, at 11.
-2-
J-A14015-23
of intent to take default judgment pursuant to Pa.R.Civ.P. 237.1 (“Ten-Day
Notices”) to Appellant and all defendants other than Checkers on January 21,
2021. The court entered default judgment against Appellant and the other
defendants, except for Checkers, on February 4, 2021, with the amount to be
determined later.
On May 6, 2021, Appellant and the other Pandya Defendants filed a
Petition to Open and/or Strike Default Judgments, generally claiming that he
had not received proper service because Ms. Patel did not have authority to
accept service for Appellant and the Pandya Defendants.3
On March 9, 2022, the court held argument on the Petition to Strike and
a hearing on the Petition to Open, during which Appellant, Ms. Patel, and
Lehigh County Constable Dennis C. Huber, who obtained Ms. Patel’s signature
on the Acceptance of Service, testified. On June 29, 2022, following post-
hearing briefing, the trial court denied Appellant’s Petition to Open and/or
Strike Default Judgment, finding that Appellant had received service based
upon the Acceptance of Service form signed by Ms. Patel.
On July 29, 2022, Appellant filed a Notice of Appeal. After Appellant
filed his Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal, the
trial court issued a statement pursuant to Rule 1925(a), referencing the
reasoning included in its June 29, 2022 Opinion.
____________________________________________
3 Appellant additionally asserted technical challenges claiming that the
Acceptance of Service form failed to comply with Pa.R.Civ.P. 402(b). The trial
court rejected the claims, which Appellant does not raise on appeal.
-3-
J-A14015-23
Before this Court, Appellant challenges the trial court’s denial of the
Petition to Strike and/or Open Default Judgment. While phrased as eleven
queries, we find that Appellant raises two overarching questions on appeal:
1. Whether the trial court erred or abused its discretion by denying
the Petition to Open the Default Judgment after finding that
Appellant received service of the Writ of Summons and the Second
Amended Complaint based upon the Acceptance of Service signed
by Ms. Patel?
2. Whether the trial court erred as a matter of law by denying the
Petition to Strike the Default Judgment because the Writ of
Summons failed to comply with Pa.R.Civ.P. 402(b) and Appellee
did not file a return of service pursuant to Pa.R.Civ.P. 405?4
A.
Appellant first challenges the trial court’s denial of his Petition to Open
Default Judgment. “A petition to open a default judgment is an appeal to the
equitable powers of the court.” Smith v. Morrell Beer Distributors, Inc.,
29 A.3d 23, 25 (Pa. Super. 2011) (citation omitted). Thus, the decision to
grant or deny the petition “is within the sound discretion of the trial court, and
[appellate courts] will not overturn that decision absent a manifest abuse of
discretion or error of law.” Id. (citation omitted). It is well-established that
____________________________________________
4 Appellant’s eleven questions span seven pages of his brief, while his
argument is divided in only six parts. Appellant’s Br. at viii-xiv. His brief,
therefore, violates Pennsylvania’s Rules of Appellate Procedure, which
mandate that appellants “state concisely the issues to be resolved,” and
require that “the argument shall be divided into as many parts as there are
questions to be argued[.]” Pa.R.A.P. 2116, 2119. Moreover, Appellant fails
to include a copy of his Pa.R.A.P. 1925(b) Statement of Errors Complained of
on Appeal in his brief in violation of Pa.R.A.P. 2111. While the violations do
not prevent our review of the merits, we reframe and condense the issues for
ease of discussion.
-4-
J-A14015-23
“[i]ssues of credibility and conflicts in evidence are for the trial court to
resolve; this Court is not permitted to reexamine the weight and credibility
determinations or substitute our judgment for that of the factfinder.”
Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 888 (Pa. Super. 2006)
(citation omitted).
A court may grant a petition to open default judgment only if the moving
party demonstrates that it “(1) promptly filed a petition to open the default
judgment, (2) provided a reasonable excuse or explanation for failing to file a
responsive pleading, and (3) pleaded a meritorious defense to the allegations
contained in the complaint.” Digital Commc'ns Warehouse, Inc. v. Allen
Invs., LLC, 223 A.3d 278, 285 (Pa. Super. 2019) (citation omitted).
When the moving party challenges the validity of service, as in the
instant case, the court must consider that issue first, because without proper
service the court has neither jurisdiction over the defendant nor the authority
to enter judgment against the defendant. Cintas Corp. v. Lee's Cleaning
Servs., Inc., 700 A.2d 915, 919 (Pa. 1997). “In making this determination,
a court can consider facts not before it at the time the judgment was entered.”
Id. (citation omitted).
The Rules of Civil Procedure set forth procedures for serving original
process but also provides that “[i]n lieu of service under this rule, the
defendant or his authorized agent may accept service of original process by
filing a separate document which shall be substantially” in the form set forth
in Rule 402(b). Pa.R.Civ.P. 402(b). While Rule 405 generally requires persons
-5-
J-A14015-23
serving process to file a Return of Service, Rule 405(f) instructs that “[a]
return of service shall not be required when the defendant accepts service of
original process.” Pa.R.Civ.P. 405(f). Additionally, Rule 440 permits service
of “legal papers other than original process” by “mailing a copy to . . . the
place of business of the party” or if necessary “to the last known address of
the party to be served.” Pa.R.Civ.P. 440(a)(2).
Appellant argues that the trial court erred or abused its discretion in
denying his Petition to Open. Appellant’s Br. at 8-12, 15-18. He asserts that
he satisfied the three requirements for a petition to open, contending that (1)
he filed the Petition to Open promptly on May 6, 2021, after becoming aware
of the entry of default judgment in April 2021; (2) the delay in filing a
responsive pleading was reasonable as it resulted from Appellee’s failure to
serve Appellant properly with either the Writ of Summons or the Second
Amended Complaint and because he never received the Ten-Day Notice; and
(3) he presented a meritorious defense to Appellee’s underlying claims.5
Appellant’s arguments on the first two prongs hinge upon his contention
that the Acceptance of Service signed by Ms. Patel was invalid and that he did
not receive proper service of the Writ of Service for purposes of Rule 402(b).
Thus, Appellant argues that Rule 440 did not authorize Appellee to serve the
Second Amended Complaint on Appellant by mail because Appellee had not
first served Appellant with original process under Rule 402. Appellant’s Br. at
____________________________________________
5 Appellee did not contest, for purposes of the Petition, that Appellant
presented a meritorious defense.
-6-
J-A14015-23
8-12. In support for these assertions, Appellant relies upon a self-serving
reading of the record, claiming that Ms. Patel was not authorized to accept
service and/or that she did not actually sign the document. Appellant’s Br. at
8.
Appellant, however, does not confront the trial court’s credibility
determinations. The court found that Constable Huber credibly testified
regarding how he obtained Ms. Patel’s signature on the Acceptance of Service
form. Tr. Ct. Op. at 9-10. In contrast, the court described Appellant’s
testimony as “disingenuous[,]” noting that Appellant “was unable to say how
or when he or his lawyers first received notice of the lawsuit or how they knew
to contact outside counsel to respond.” Tr. Ct. Op. at 10-11. The court also
found Ms. Patel’s testimony “unconvincing[,]” noting that she “had a strong
motivation to deny signing the Acceptance of Service.” Id. at 11. Moreover,
the court rejected Appellant’s claim that Appellee had not served him by mail
with the Second Amended Complaint and Ten-Day Notice, finding it to be
“simply not true[,]” in light of the Affidavits of Service filed by Appellee
utilizing Appellant’s correct address. Id. at 13. The trial court opined that
Appellant’s failure to respond was not due to lack of receipt of the documents
but rather “a tactical decision not to respond.” Id. at 14.
After careful review and with deference to the trial court’s credibility
determinations, we conclude that the record fully supports the court’s findings
that Appellee served Appellant with the Reissued Writ of Summons, the
Second Amended Complaint, and the Ten-Day Notice. These factual findings
-7-
J-A14015-23
undermine Appellant’s Petition to Open because he cannot demonstrate a
reasonable excuse for his failure to file responsive pleadings, as is necessary
to open a default judgment. Accordingly, we affirm the trial court’s denial of
Appellant’s Petition to Open Default Judgment.
B.
Appellant next challenges the denial of his Petition to Strike. “A petition
to strike a judgment is a common law proceeding which operates as a
demurrer to the record [and] may be granted only for a fatal defect or
irregularity appearing on the face of the record.” Digital Commc'ns
Warehouse, Inc, 223 A.3d at 284 (citation omitted). “A fatal defect on the
face of the record denies the prothonotary the authority to enter judgment.”
Id. at 285. When considering whether to grant a petition to strike judgment,
“a court may only look at what was in the record when the judgment was
entered.” Cintas Corp., 700 A.2d at 917. As a petition to strike presents a
question of law, “our standard of review is de novo and our scope of review is
plenary.” Digital Commc'ns Warehouse, Inc., 223 A.3d at 284.
Appellant does not reassert the technical challenges to the Acceptance
of Service which he raised as fatal defects before the trial court. He instead
essentially reframes the arguments set forth above in support of his Petition
to Open, asserting the invalidity of the Acceptance of Service based upon the
testimony of Appellant and Ms. Patel. Appellant’s Br. at 13-14. He contends
that the trial court did not have personal jurisdiction over him because
Appellee failed to properly serve him with original process pursuant to Rule
-8-
J-A14015-23
402 or file a return of service as required by Rule 405. He claims “[a] default
judgment entered without the [c]ourt having jurisdiction over a defendant is
an apparent defect on the face of the record.” Appellant’s Br. at 14.
Appellant does not present a defect on the face of the record as required
for a petition to strike, but rather merely reasserts his own factual narrative,
which the trial court rejected. As noted, the court concluded that Ms. Patel
accepted original service on Appellant’s behalf by signing a form that
substantially complied with Rule 402(b). The valid Acceptance of Service
undermines Appellant’s arguments that Appellee failed to provide original
service under Rule 402 or file a return of service under Rule 405, as these
requirements are inapplicable in cases involving acceptance of service under
Rule 402(b). We, therefore, agree with the trial court that Appellant failed to
show a defect on the record to support his Petition to Strike.
Accordingly, we conclude that the trial court did not abuse its discretion
or commit an error of law in denying Appellant’s Petition to Open and/or Strike
Default Judgment.
Order affirmed.
Date: 10/2/2023
-9-