Tuesday, February 16, 2016

Pennsylvania Defendant's Signing of Green Card Receipt of Complaint By Mail Does Not Negate Improper Service of Original Process

Lackawanna County Court of Common Pleas

In his recent decision in the case of Brown v. Vito, No. 2014-CV-5768 (C.P. Lacka. Co. Jan. 26, 2016 Minora, J.), Judge Carmen D. Minora of the Lackawanna County Court of Common Pleas granted a Petition to Strike a Default Judgment in a civil litigation matter.  
According to the Opinion, the Plaintiff secured a default judgment against the Defendant in a partnership dispute case where the Plaintiff had alleged a breach of fiduciary duty, fraud, partnership oppression, and a request for account in escrow.   The Plaintiff asserted that the Defendant failed to file a timely answer to the Complaint.   The judgement was entered by the Plaintiff in the amount of $200,000.00.  
The Defendant filed a Petition to Strike the default judgment along with a request for an emergency temporary stay of the Plaintiff’s attorney's plan to execute on the judgment. 
In his decision, the court reviewed the well-settled standard of review for a Petition to Strike a Default Judgment.   Concisely, under that standard of review, a Petition to Strike a Default Judgment may be granted only where a fatal defect or irregularity is apparent on the face of the record.  
After reviewing the record before the court in this matter, Judge Minora found that the Plaintiff failed to follow the Pennsylvania Rules of Civil Procedure pertaining to service of original process which, in this matter, was the Complaint.  
Here, the Plaintiff produced a certified mail receipt with the Defendant’s signature in an effort to show that service was properly made under the Rules.   However, Judge Minora noted that, “[e]ven if  Defendant signed for and received Plaintiff’s Complaint, that does not necessarily make service proper under the Rules.”  
Judge Minora noted that Pa. R.C.P. 403 permits original process to be served by mail if a Rule of Civil Procedure authorizes so under certain limited exceptions.   Otherwise, the general rule, under Pa.R.C.P. 400, is that original service has to be served by a Sheriff.  
Since the court found that it did not appear that any Rule of Civil Procedure permitted original service to be served by mail in this matter, the court found that the Plaintiff failed to comply with the applicable Rules of Civil Procedure.  Accordingly, the court found a fatal defect in the record that supported a striking of the default judgment.  
The court also went on to note additional defects with respect to the Plaintiff’s non-compliance with Pa. R.C.P. 237.1 pertaining to the mandated steps to properly request the entry of a default judgment.   The court found that these defects were fatal defects that likewise supported striking the entry of the default judgment.  


Anyone desiring a copy of this decision may contact me at dancummins@comcast.net.

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