J-A10015-14
2015 PA Super 18
DONALD R. SISSON AND
MARY : IN THE SUPERIOR COURT OF
SISSON, HIS WIFE, : PENNSYLVANIA
:
Appellants :
:
v. :
:
JOSEPH STANLEY, HIS HEIRS, :
SUCCESSORS, EXECUTORS, ASSIGNS, :
AND ANY PERSONS CLAIMING BY, :
THROUGH, OR FROM THEM, :
:
Appellees : No. 1347 MDA 2013
Appeal from the Order entered June 28, 2013,
Court of Common Pleas, Susquehanna County,
Civil Division at No. 2010-620 C.P.
BEFORE: DONOHUE, ALLEN and STABILE, JJ.
DISSENTING OPINION BY DONOHUE, J.: FILED JANUARY 27, 2015
With due deference to the Majority, the decision to affirm the trial
court’s order opening the judgment in the absence of any evidentiary record
completely disregards our standard of review. The certified record on appeal
reflects that the Appellee, Rita Stanley Lupold (“Lupold”), submitted no
evidence to the trial court in support of her allegations in the petition to
open the judgment, including no evidence of a lack of actual notice of the
action (either as a result of the service by publication or otherwise) and no
evidence to support a finding that the search for potential heirs was
insufficient. The trial court, in the absence of any evidence, apparently
conducted its own factual investigation to provide itself with a basis for its
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decision. The learned Majority, rather than follow our standard of review
requiring reversal in the absence of any evidence of record, has instead
“supplemented” the certified record on appeal in direct contravention of the
Pennsylvania Rules of Appellate Procedure. While I am not blind to the
laudable desire to rectify an apparent prejudice when a judgment appears to
have been entered without adequate notice of suit, we cannot do so based
upon mere assumptions and unsupported allegations. For these reasons, I
must respectfully dissent.
Unlike the Majority, I begin with our standard of review. A petition to
open a judgment is an appeal to the equitable powers of the court. Cintas
Corp. v. Lee's Cleaning Servs., Inc., 700 A.2d 915, 919 (Pa. 1997); First
Seneca Bank & Trust Co. v. Laurel Mountain Development Corp., 485
A.2d 1086, 1088 (Pa. 1984). Our standard of review in matters of equity is
to determine whether the findings of fact are supported by competent
evidence, whether an error of law has been committed, or whether there has
been a manifest abuse of discretion. Possessky v. Diem, 655 A.2d 1004,
1008 (Pa. Super. 1995). To do so, we must “examine the entire record” and
“where the equities warrant … this Court will not hesitate to find an abuse of
discretion.” Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d
1269, 1280 (Pa. Super. 2005) (quoting Reid v. Boohar, 856 A.2d 156, 159
(Pa. Super. 2004)).
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My review of the record here discloses no basis upon which to affirm
the trial court’s decision to open the judgment. In connection with a quiet
title action filed by Appellants, Donald and Mary Sisson (the “Sissons”), the
trial court granted a motion for service by publication pursuant to Rule
430(a) of the Pennsylvania Rules of Civil Procedure, directed to the heirs or
assigns of Joseph M. Stanley. On May 5, 2010, the Sissons published notice
of their suit in the Susquehanna County Independent (per Rule 430(b)).
After no heirs or assigns of Joseph M. Stanley responded to the service by
publication, on August 2, 2010, the trial court entered judgment in favor of
the Sissons.
Four months later, on November 9, 2010, Lupold (by and through her
powers of attorney) filed a verified petition to open the judgment (the
“Petition”) entered on August 2, 2010. The trial court immediately entered
an order in the form provided in Rule 206.6 of the Pennsylvania Rules of
Civil Procedure.1
1
By local rule, Susquehanna County has adopted the alternative procedure
in Pa.R.C.P. 206.6 requiring the issuance of a rule to show cause as a matter
of course upon the filing of a petition. Susq. Civil Rule 206.4(c). The form
of order prescribed by Rule 206.6 requires the trial court to set a date for
completion of depositions and schedule an argument thereafter. The Note to
Rule 206.6 provides that a county may opt to replace the discovery and
argument provisions in paragraphs (4) and (5) of the order with an
evidentiary hearing. Pa.R.C.P. 206.6 Note. Susquehanna County has not
adopted this optional practice.
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ORDER
AND NOW, this 9th day of November, 2010, upon consideration
of the foregoing petition, it is hereby ordered that
(1) A rule is issued upon the Respondents to show
cause why the petitioner is not entitled to the relief
requested;
(2) The Respondents shall file an answer to the
petition within twenty (20) days of service upon the
Respondents;
(3) This petition shall be decided pursuant to
Pennsylvania Rule of Civil Procedure 206.7;
(4) Depositions shall be completed within __ days of
this date;
(5) Argument [] shall be held on December 28,
2010, 11:15 a.m. in Courtroom #1 of the
Susquehanna County Courthouse; and
(6) Notice of the Entry of this Order shall be provided
to all parties by the Petitioner or her counsel.
BY THE COURT
Trial Court Order, 11/9/2010, at 1 (emphasis added).
The Sissons filed a verified answer and new matter to the Petition on
December 3, 2010, and Lupold filed an answer to the new matter on
December 21, 2010. The record does not reflect any other activity by the
parties until oral argument on December 28, 2010, including no depositions
or other discovery and no briefs or other submissions to the trial court. The
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record does not contain a transcript of the oral argument. The trial court
then issued the following order:
ORDER
NOW TO WIT, this 28th day of December 2010, after
argument held on the [Petition], it be and is hereby Ordered that
the judgment ordered July 12, 2010, be and is hereby Opened.
[Lupold is] directed to file a responsive pleading to
Plaintiffs’ Complaint within twenty (20) days of this Order.
We specifically find under the circumstances that [the
Sissons] averred that they believed John M. Stanley to be
deceased[,] that the attempts to locate his heirs were
insufficient as outlined in the Affidavit Pursuant to Pa.R.C.P.
430(a), and as such service upon the heirs of John M. Stanley
was invalid. We specifically note no mention of investigation of
contents of the will at Will Book 20 Page 570. See Deer Park
Lumber v. Major, 384 Pa. Super. 625, 559 A.2d 941 (1989).
BY THE COURT
Trial Court Order, 12/28/2010, at 1.2 On December 29, 2010, counsel for
the Sissons, apparently not having received service of the trial court’s order,
filed a post-argument brief in opposition to the Petition.
In paragraph (1) of its November 9, 2010 order, the trial court issued
a rule to show cause why the relief requested in the Petition should not be
granted, and in paragraph (3) the trial court acknowledged that the rule to
show cause would be decided in accordance with Rule 206.7 of the
Pennsylvania Rules of Civil Procedure.
2
On January 24, 2011, the trial court issued an Amended Order noting the
will was at page 560 rather than page 570.
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Rule 206.7. Procedure After Issuance of Rule to Show Cause
(a) If an answer is not filed, all averments of fact in
the petition may be deemed admitted for the
purposes of this subdivision and the court shall enter
an appropriate order.
(b) If an answer is filed raising no disputed issues of
material fact, the court on request of the petitioner
shall decide the petition on the petition and answer.
(c) If an answer is filed raising disputed issues of
material fact, the petitioner may take depositions on
those issues, or such other discovery as the court
allows, within the time set forth in the order of the
court. If the petitioner does not do so, the petition
shall be decided on petition and answer and all
averments of fact responsive to the petition and
properly pleaded in the answer shall be deemed
admitted for the purpose of this subdivision.
(d) The respondent may take depositions, or such
other discovery as the court allows.
Pa.R.C.P. 206.7.3
3
In a footnote, the Majority contends that any discussion of Rule 206.7 is
“inapposite” because the Sissons did not challenge the trial court’s lack of
compliance with the rule. Majority Opinion at 5 n.4. Whether the Sissons
objected to the lack of compliance with Rule 206.7 is entirely irrelevant,
however, since the lack of compliance by everyone involved in the process
resulted in the absence of any evidentiary record to consider on appeal –
which implicates our standard of review. It is impossible to review the
adequacy of the record in this appeal without understanding the petition and
rule proceedings that generated the trial court’s decision. Noncompliance
with Rule 206.7 is not the basis of my dissent – the lack of evidence in the
record is.
Frankly, nothing in the certified record suggests that counsel for the Sissons
had any better understanding of proper petition and rule practice under Rule
206.7 than did counsel for Lupold or the trial court. Unfortunately, as the
present discussion demonstrates, for our purposes, the result of this
collective confusion is the lack of any evidentiary record -- and thus
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As indicated, the Sissons filed a verified answer to the Petition on
December 3, 2010. My review of this answer shows that it raised at least
two disputed issues of fact material to the resolution of the rule to show
cause. First, the Sissons disputed that service by publication had not
provided Lupold with notice of the action prior to the entry of judgment, as
alleged in paragraph 10 of the Petition:
Petition ¶ 10. [Lupold] never received actual or
constructive notice of the above captioned action prior
to entry of the Order or judgment entered thereon.
Answer ¶ 10. The allegations contained in Paragraph
10 of [the Petition] are conclusions of fact and law to
which no response is required under the Pennsylvania
Rules of Civil Procedure and they are, therefore,
deemed denied and placed at issue. Strict proof
thereof is demanded at the time of trial.
Petition, 11/9/2010, ¶ 10; Answer, 12/3/2010, ¶ 10. Second, the Sissons
disputed Lupold’s contention that the search for heirs as set forth in the
affidavit accompanying the motion for service by publication was insufficient
and, more specifically, that they had failed to locate an obituary in a local
newspaper that would have disclosed Joseph M. Stanley’s heirs:
Petition ¶ 8. [Lupold] alleged the search made by [the
Sissons] was insufficient under the circumstances,
particularly in light of the fact that they failed to
discover Joseph M. Stanley’s obituary, published in a
local newspaper, which would have resulted in the
discovery of his surviving sister and nieces and
nephews.
providing no basis on which to affirm the trial court’s order granting the
petition to open.
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Answer ¶ 8. The allegations contained in Paragraph 8
of [the Petition] are conclusions of fact and law to
which no response is required under the Pennsylvania
Rules of Civil Procedure and they are, therefore,
deemed denied and placed at issue. Strict proof
thereof is demanded at the time of trial.
Petition, 11/9/2010, ¶ 8; Answer, 12/3/2010, ¶ 8.
Because the Sissons filed a timely answer raising disputed issues of
material fact,4 they triggered the application of section (c) of Rule 206.7.
Pursuant to Rule 206.7(c), Lupold had the burden of taking depositions or
other discovery to provide the trial court with evidence to support the factual
allegations in the Petition. As Rule 206.7 makes clear, the burden of proof
with respect to disputed issues of material fact rests with the petitioner,
since if the petitioner fails to present evidence, the trial court must accept as
true the allegations of fact in the respondent’s answer. Petition of Tax
Claim Bureau of Westmoreland Cnty., 613 A.2d 634, 638 (Pa. Cmwlth.
1992) (“[T]he party who has obtained the rule has the burden of proof upon
him.”); McCoy v. Mahoney, 820 A.2d 736, 740 (Pa. Super. 2003); see
4
Arguably, the Sissons’ answers here constitute general denials under Rule
1029(b). Pa.R.C.P. 1029(b). Rule 1029(b), however, has no application in
rule to show cause practice under Rules 206.1-206.7. By its terms, Rule
1029(b) applies only to “pleadings,” and Rule 1017 (which lists the types of
pleadings allowed in civil actions) does not include petitions for rules to show
cause or answers filed thereto as “pleadings.” See Pa.R.C.P. 1017. Rule
206.7(c) requires only that an answer to a petition for a rule to show cause
raise one or more disputed issues of material fact, and the Sissons’ answers
to paragraphs 8 and 10 of the Petition, which deny Lupold’s allegations of
fact in those paragraphs and demand strict proof to the contrary, satisfy this
basic requirement.
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also 500 James Hance Court v. Pennsylvania Prevailing Wage
Appeals Bd., 33 A.3d 555, 575-76 (Pa. 2011) (“In every lawsuit, somebody
must go on with it; the plaintiff is the first to begin, and if he does nothing
he fails. … The test, therefore, as to the burden of proof is simply to
consider which party would be successful if no evidence at all was given.”).
The certified record on appeal does not disclose that Lupold took any
depositions or other discovery. The record likewise does not demonstrate
that Lupold ever introduced or otherwise submitted any evidence to the trial
court in support of the disputed issues of material fact alleged in her
Petition. The trial court did not conduct an evidentiary hearing. While the
trial court’s December 28, 2010 order confirms that it heard oral argument
before granting the rule, there is no indication in the record that it received
any evidence at this proceeding.5 Far from disputing this point, in her
appellate brief filed with this Court, Lupold freely admits that “not one word
of testimony was taken in this case,” and she agrees that the trial court
decided the case despite “the lack of an evidentiary record.” Lupold’s Brief
at 3, 7.6
In granting the rule to show cause and opening the judgment, the trial
court necessarily and/or expressly decided the disputed issues of material
5
As noted hereinabove, the record does not contain a transcript of the oral
argument.
6
Clearly unaware that the burden of proof rested with her, Lupold faults the
Sissons for not requesting an evidentiary hearing. Lupold’s Brief at 3, 7.
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fact in Lupold’s favor despite the absence of any evidence of record to
support those determinations. No evidence of record supports Lupold’s
allegation that she did not receive notice of the Sissons’ action, either as a
result of the service by publication or otherwise. Lupold also introduced no
evidence of record to provide any basis for the trial court’s determination
that the Sissons’ search for potential heirs was insufficient. Lupold’s only
specific factual allegation in this regard (that an obituary in a local
newspaper had identified said heirs) remains wholly unsupported, as Lupold
never introduced the alleged obituary into evidence or offered any
information upon which the trial court could have found that the Sissons
should have located it (including, inter alia, the name of the local newspaper
in question, the date of publication of the obituary, or the heirs identified).
As set forth hereinabove, our standard of review permits affirmance of a trial
court’s order only if its findings of fact are supported by competent evidence.
Possessky, 655 A.2d at 1008. In the absence of any evidentiary record to
support the trial court’s factual findings in this case, we must reverse.
In the absence of an evidentiary record, the trial court conducted its
own factual investigation to provide a basis for its decision. In its December
28, 2010 order, the trial court refers to Joseph M. Stanley’s will, which it
found in the Susquehanna Recorder of Wills’ office. Trial Court Order,
12/28/2010, at 1. This is the first, and the only, reference to the Stanley
will during the entirety of the proceedings in the trial court until this time,
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including no references in either Lupold’s Petition or the Sissons’ answer.
Nothing in the certified record on appeal demonstrates, or even suggests,
that the Stanley will was ever introduced into evidence by either of the
parties, including at oral argument or otherwise. In a brief filed with the
trial court after oral argument, the Sissons still did not mention a will,
representing instead that at oral argument Lupold had relied almost
exclusively on Deer Park. Brief in Opposition to Petition to Open and/or
Strike Judgment, 12/29/2010, at 2. On appeal, Lupold does not represent
that she was responsible for bringing the Stanley will to the trial court’s
attention, while the Sissons suggest that the trial court found it as a result of
its own efforts. See Sissons’ Brief at 16 (“The lower court determined the
search was insufficient only after locating the Will of [Lupold’s] father.”).
Trial courts are not empowered to conduct their own investigations to
obtain evidence to decide disputed issues of fact. See, e.g., Klemow v.
Time Inc., 352 A.2d 12, 14 n.3 (Pa. 1976); HYK Const. Co., Inc. v.
Smithfield Tp., 8 A.3d 1009, 1017 (Pa. Cmwlth. 2010) (“The trial court
improperly embarked on an extramural investigation….”). As our Supreme
Court made clear in Klemow, a trial court’s act of conducting its own fact-
finding investigation is “inconsistent with the established role of the trial
court in adversarial litigation.” Id. To this end, the Supreme Court recently
amended Canon 2 of the Code of Judicial Conduct to clarify that “[a] judge
shall not investigate facts in a matter independently, and shall consider only
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the evidence presented and any facts that may properly be judicially
noticed.” CODE OF JUDICIAL CONDUCT, Canon 2.9(C) (2014).
In a footnote, the Majority contends that the trial court “had authority”
to take judicial notice of the Stanley will pursuant to Rule 201 of the
Pennsylvania Rules of Evidence. Majority Opinion at 9-10 n.6. I do not
agree. In the case before us, no party attempted to prove the fact of the
will or even mentioned it. As this Court has repeatedly emphasized, “Judicial
notice is intended to avoid the formal introduction of evidence in limited
circumstances where the fact sought to be proved is so well known that
evidence in support thereof is unnecessary….” Floors, Inc. v. Altig, 963
A.2d 912, 918 (Pa. Super. 2009) (quoting Styers v. Bedford Grange Mut.
Inc. Co., 900 A.2d 895, 898-99 (Pa. Super. 2006)). The two cases cited in
the Majority’s footnote merely reiterate this fundamental point, as in both
instances we approved of a trial court’s decision to take judicial notice of
public records already at issue in the case but which had not been formally
introduced into the record. Bykowski v. Chesed, Co., 625 A.2d 1256,
1257-58 & n.1 (Pa. Super. 1993) (stating that the trial court was permitted
to take judicial notice of a deed confirming ownership of real property, which
ownership had already been admitted in the pleadings); Pocono Summit
Realty, LLC v. Ahmad Amer. LLC., 52 A.3d 261, 249 (Pa. Super. 2012)
(stating that the trial court was permitted to take judicial notice of
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subdivision plans that the plaintiffs had referenced and discussed in their
complaint but had failed to attach to said pleading).
More importantly, neither Bykowski nor Pocono authorize what
occurred here; namely, for a trial court to conduct its own factual
investigation and then take judicial notice of the “evidence” it found. In
Chaplin v. Pelton, 423 A.2d 8 (Pa. Super. 1980), the trial judge decided a
real estate case based upon “his own examination of records in the
Record[er] of Deeds Office.” Id. at 8. The appellees had attached various
deeds to a trial brief, but did not introduce them into evidence. The trial
judge, in deciding the case after a non-jury trial, indicated that he had
undertaken his own investigation and examination of the deeds, which he
insisted was appropriate because they were “matters of public record in the
Clearfield County Recorder of Deeds Office.” Id. This Court emphatically
disagreed, ruling that the independent examination was improper and could
not be justified based upon “judicial notice.”
The fact that the deeds were recorded and hence
public records gave them no special sanctity, being
merely public notice of title. Proper exemplification
of recorded deeds makes them available as legal
evidence, and simply dispenses with the necessity of
producing the original deeds in those cases where
such deeds would be competent testimony. This
does not obviate the necessity of producing and
introducing into the record either the original or
exemplified copies of such documents at trial.
Nor can such action by the trial judge be
sustained on the ground of judicial notice.
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Aside from the fact that it concerned disputed
questions of fact which are not within the domain of
judicial notice, no request to take such notice was
made nor was any authorization given to make such
an examination.
The trial judge’s action in examining the deed
records not only deprived appellant of the
opportunity to question, as well as dispute, the
relevancy of any such recorded deeds, but made it
impossible for this court to determine the basis for
his factual findings.
Id. at 9 (emphasis added; footnotes omitted).7
7
The Majority attempts to distinguish Chaplin on the grounds that there,
the trial judge relied upon the contents of the document uncovered by its
investigation, while instantly the trial court’s decision rested on the Sissons’
“failure to discover an easily discoverable document.” Majority Opinion at 10
n.7.
The Majority relies upon a false dichotomy, since in Chaplin we emphasized
that a trial court may not conduct its own factual investigation and then take
judicial notice of the results of its improper efforts. Chaplin, 423 A.2d at 9.
Our decision in Chaplin did not turn on the degree of difficulty the trial court
encountered in conducting its search. Similarly, the issue here is that the
trial court’s factual investigation was fundamentally inappropriate, regardless
of its purpose or complexity.
The Majority’s reference to the Stanley will as “easily discoverable” is itself
noteworthy, as the Majority offers no explanation why Lupold did not locate
the document herself. Under proper petition and rule practice pursuant to
Rule 206.7, it was Lupold’s obligation to locate the “easily discoverable”
will, reference it in her petition to open, and then come forward with proof of
its existence – which would have provided the trial court with a proper
evidentiary basis for a decision to open the judgment.
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The Majority’s footnote further states that “[p]ursuant to our 8 request,
the Stanley will has been incorporated into the certified record.” Majority
Opinion at 9-10 n.6. This attempt to supplement the certified record was, in
my view, a clear violation of our Rules of Appellate Procedure. This Court’s
ability to correct or modify a certified record is governed by Pa.R.A.P.
1926(b)(1), which provides as follows:
Rule 1926. Correction or Modification of the Record
* * *
(b) If anything material to a party is omitted from
the record by error, breakdown in processes of the
court, or accident or is misstated therein, the
omission or misstatement may be corrected by the
following means:
(1) by the trial court or the appellate
court upon application or on its own
initiative at any time; in the event of
correction or modification by the trial
court, that court shall direct that a
supplemental record be certified and
transmitted if necessary[.]
Pa.R.A.P. 1926(b)(1). The Note to Pa.R.A.P. 1921 provides further
clarification:
[I]f the appellate court determines that something in
the original record or otherwise presented to the trial
court is necessary to decide the case and is not
included in the certified record, the appellate court
may, upon notice to the parties, request it from the
trial court sua sponte and supplement the certified
8
The Authoring Judge of the Majority decision acted alone in making this
request.
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record following receipt of the missing item. See
Rule 1926 (correction or modification of the record).
Pa.R.A.P. 1921 Note.
Pursuant to Pa.R.A.P. 1926(b)(1), this Court may correct or modify a
certified record to add anything in the original record or presented to the
trial court, but which was omitted as a result of error, breakdown in
processes of the court, or by accident or misstatement. As discussed at
length hereinabove, however, the Stanley will meets none of these
requirements. The parties never presented the Stanley will to the trial court
or sought its introduction into evidence in connection with Lupold’s Petition.
To the contrary, nothing in the certified record suggests that the parties
were even aware of its existence at the time the trial court referenced it in
its order granting the Petition and opening the judgment. The absence of
the Stanley will from the certified record transmitted to this panel on appeal
was not the result of any error, breakdown in processes, accident, or
misstatement. It was not included in the certified appellate record because
the parties never made the Stanley will a part of the certified appellate
record. Nothing in our Rules of Appellate Procedure permits this Court to
“incorporate” a document into a certified record if the certified record
discloses no proper basis for the document’s incorporation.
The Majority correctly notes that the current climate to find and secure
properties for gas exploration in Pennsylvania will likely result in an increase
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in the number of motions requesting service by publication. Maj. Op. at 13
n.11. To this end, the Majority’s recognition of the need to “properly
scrutinize, document, and verify” such motions before permitting service by
publication is commendable. Id. This worthy goal cannot be accomplished,
however, by ignoring the Rules of Civil and Appellate Procedure and deciding
cases without regard for our standard of review. By rule, petitioners seeking
to open judgments have the burden to present evidence with respect to
disputed issues of fact and the trial court must decide those disputed issues
of fact based upon the evidence presented. Here, the Majority apparently
embraces an alternative procedure in which the burden of coming forward
with evidence is eliminated and the trial court may instead rely on unproven
allegations (or worse, its own extramural investigation, which this Court then
blesses by “supplementing” the certified record to incorporate its findings).
Because our standard of review requires it, I dissent.
I also disagree with the learned Majority’s application of this Court’s
prior decision in Deer Park Lumber, Inc. v. Major, 559 A.2d 941 (Pa.
Super. 1989). In my view, Deer Park has no application to the present
case, since there we ruled only that the trial court should have opened the
judgment because the appellee had failed to comply with Rule 430(a) when
moving for service by publication. Id. at 944-47. Rule 430(a) provides that
a party seeking permission to serve original process by publication must file
a motion “accompanied by an affidavit stating the nature and extent of the
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investigation which has been made to determine the whereabouts of the
defendant and the reasons why service cannot be made.” Pa.R.C.P. 430(a).
In Deer Park, our review of the certified record on appeal disclosed
that the appellee had not complied with these requirements:
In the case at bar, appellee did not file a motion
requesting that service be accomplished by
publication. Rather, appellee filed an affidavit along
with its complaint stating that the whereabouts of
appellants were unknown. This affidavit, drafted
pursuant to former Rule 1064(c), failed to provide
any indication of the types of procedures used to
locate C.B. or Eunice Major or any of the appellants
herein. Nevertheless, the trial court, without
inquiring into the investigation undertaken to
establish the whereabouts of any potential
defendants, ordered service by publication. This was
clearly error. Service by publication is the exception,
not the rule, and can only be ordered provided
the requirements of Rule 430(a) have been
met. In this case, the record reveals that they
have not.
Deer Park, 559 A.2d at 944-45 (emphasis added; footnote omitted).
Leaving no doubt about the basis for our decision in Deer Park, we
concluded the opinion as follows:
In light of the foregoing, what we hold today is that
in order to effect service by publication pursuant to
the provisions of Rule 430(b), the party must first
file a motion, accompanied by an affidavit
conforming to the requirements set forth in Rule
430(a). Because the appellee and the trial court
failed to follow this procedure, we conclude
that a default judgment should not have been
entered. Under the present circumstances, we find
that appellants were not properly served with notice
of this action, therefore, the trial court had not
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obtained the requisite personal jurisdiction needed
for entry of judgment. Accordingly, we conclude that
the trial court’s action in refusing to open the default
judgment and allow the appellants to file an answer
to the complaint constituted an abuse of discretion.
Under these circumstances, we have no alternative
but to reverse their order and remand for
proceedings consistent with this opinion.
Id. at 946-47 (emphasis added; citation and footnote omitted).
In the present case, the Majority does not dispute that the Sissons
complied with the requirements of Rule 430(a), as they filed with the trial
court a “Motion for Order Authorizing and Directing Service by Publication
Pursuant to Pa.R.C.P. 430(a),” attaching thereto an affidavit “stating the
nature and extent of the investigation which has been made” to locate the
heirs of Joseph M. Stanley. The Majority chooses to ignore this obvious
difference from Deer Park, instead relying upon a discussion in that case
regarding the shortcomings of the search conducted by the appellee (as
established at a subsequent evidentiary hearing, rather than based upon the
contents of the non-compliant affidavit). This discussion in Deer Park
regarding the parameters of the search was mere non-decisional dicta,
however, as it was only undertaken in response to a counter argument
posed by the appellee in an effort to sustain the trial court’s ruling. Id. at
945 (“It is also argued by appellee that the investigation undertaken to
locate the appellants, while not actually placed in its affidavit, was
nevertheless sufficient under the rules to allow for service by publication.”).
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The outcome of this discussion was not in any respect essential to our
decision to reverse the trial court, since as the above-quoted passages from
Deer Park make clear, we reversed because the appellee failed to comply
with the requirements of Rule 430(a), and this outcome would have been
the same even if the appellee in that case had conducted an adequate
investigation designed to locate potential heirs.
The doctrine of stare decisis does not apply to dicta unnecessary to the
outcome of the prior case. In re L.J., 79 A.3d 1073, 1081 (Pa. 2013). Our
decision in Deer Park does not require trial courts, in response to a petition
to open a judgment, to review the adequacy of a plaintiff’s investigation into
a defendant’s whereabouts before obtaining permission to serve by
publication. To the contrary, Deer Park, properly understood, provides that
the requisite personal jurisdiction needed for entry of judgment following
service by publication is conferred only after strict compliance with the
dictates of Rule 430(a). In the absence of any contention that the Sissons
failed to comply with Rule 430(a), I would reverse the trial court’s decision
to open the judgment in this case.
Contrary to the Majority’s representations, its affirmance of the trial
court’s decision is not an exercise in stare decisis mandated by Deer Park,
but rather is an unwarranted expansion and misapplication of that case. In
so doing, the Majority creates a procedure never intended or contemplated
by Rule 430(a) and one that distorts the requirements for obtaining personal
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jurisdiction under that rule. As described hereinabove, under Rule 430(a), a
plaintiff in a real estate case must file a motion requesting service by
publication and attach an affidavit stating the nature and extent of the
investigation undertaken to locate potential heirs and assigns of the real
estate interests in question. Pa.R.C.P. 430(a). The trial court must then
determine, based upon the contents of the affidavit, whether the plaintiff has
conducted a good faith search and whether service by publication is a
method of service reasonably calculated to give the potential heirs and
assigns notice of the pending litigation and an opportunity to be heard.9
Romeo v. Looks, 535 A.2d 1101, 1105 (Pa. Super. 1987), appeal denied,
542 A.2d 1370 (Pa. 1988). Where this procedure is properly followed, see
Deer Park, 559 A.2d at 944-47, and where the trial court grants the
motion, service by publication confers personal jurisdiction over the
potential heirs or assigns. Pa.R.C.P. 410;10 Pa.R.C.P. 430(b)(2) (“When
9
Two other cases cited by the Majority are also inapposite to the present
circumstances. In both Fusco v. Hill Financial Sav. Ass’n, 683 A.2d 677
(Pa. Super. 1996), and PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219
(Pa. Super. 2007), the affidavits filed pursuant to Rule 430(a) identified a
specific heir whose location in the Commonwealth was known to the affiant.
Fusco, 683 A.2d at 680; PNC, 929 A.2d at 229. Pursuant to Rule
430(b)(2), service by publication is not permitted if the identity of an heir or
assign is known. Pa.R.C.P. 430(b)(2).
10
Rule 410 provides in relevant part:
(a) In actions involving title to, interest in,
possession of, or charges or liens upon real property,
original process shall be served upon the defendant
in the manner provided by Rule 400 et seq.
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service is made by publication upon the heirs and assigns of a named former
owner or party in interest, a court may permit publication against the heirs
or assigns generally if it is set forth in the complaint or in an affidavit that
they are unknown.”).
According to the Majority, however, compliance with Rule 430(a) may
or may not confer personal jurisdiction. Although not described anywhere
in the Pennsylvania Rules of Civil Procedure, the Majority insists that a
potential heir or assign may, at any point in the future without limitation,
come forward and file a petition to open the judgment. At that time, the
trial court must reconsider its prior decision authorizing service by
publication based upon any new information provided in the petition to open.
And if, so the argument goes, the trial court determines in hindsight that it
should not have granted the motion for service by publication, then it never
actually obtained personal jurisdiction over the petitioner and the judgment
must be opened. In my view, our Rules of Civil Procedure establish the
methods by which personal jurisdiction may be obtained (in this case, by
compliance with Rule 430(a)), and include no contrary provisions for
* * *
(c) If service is made pursuant to an order of court
under Rule 430(a), the court shall direct one or more
of the following methods of service:
(1) publication as provided by Rule 430(b),
Pa.R.C.P. 410(a), (c)(1).
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“hindsight withdrawal” of personal jurisdiction once conferred. In addition to
the absence of any authorization under our procedural rules for such an
approach, from a policy perspective, it is unwise and counterproductive, as it
erodes the reliability and finality of judgments entered after service by
publication, as such judgments are always and forever subject to collateral
attack by potential heirs or assigns.
For all of these reasons, I respectfully dissent.
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