J-A34041-14
2015 PA Super 131
ALEXANDRA AND DEVIN TREXLER, IN THE SUPERIOR COURT OF
HUSBAND AND WIFE PENNSYLVANIA
Appellants
v.
MCDONALD’S CORPORATION
Appellee No. 903 MDA 2014
Appeal from the Order Entered May 2, 2014
In the Court of Common Pleas of Schuylkill County
Civil Division at No: S-596-2012
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.
OPINION BY STABILE, J.: FILED JUNE 03, 2015
Appellants, Alexandra and Devin Trexler, appeal from the May 2, 2014
order sustaining the preliminary objections of Appellee, McDonald’s
Corporation. We affirm.
The sole question before this Court is whether the trial court erred in
finding that Appellants failed to serve process on Appellee. We will begin
with a detailed review of the procedural history and pleadings. This litigation
arose from Alexandra Trexler’s February 11, 2011 slip and fall accident at a
McDonald’s restaurant located at the intersection of Route 61 and Tunnel
Road in Pottsville, Pennsylvania (the “Pottsville McDonald’s”). Appellants
filed a complaint on March 21, 2012 naming Appellee as a defendant and
alleging Appellee was negligent in allowing a slippery condition to exist on
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the floor of the Pottsville McDonald’s. Appellants served the complaint on
the manager of the Pottsville McDonald’s. On April 25, 2012, Appellee,
through its counsel, filed preliminary objections alleging improper service.
Appellants filed an amended complaint on May 16, 2012. On August 17,
2012, the trial court entered an order dismissing Appellee’s preliminary
objections as moot in light of the amended complaint.
On April 19, 2013, more than eleven months after the amended
complaint was filed, Appellee once again filed preliminary objections.
Appellee alleged its counsel never agreed to accept service of the amended
complaint on behalf of Appellee. Preliminary Objections to Plaintiffs’
Amended Complaint, 4/19/13, at ¶ 6. In support of that assertion, Appellee
attached a series of emails between Appellee’s counsel and Appellants’
counsel.
The first email, sent from Appellants’ counsel to Appellee’s counsel on
May 2, 2012, reads as follows:
I am in receipt of your P.O.’s related to service of process. While
I disagree with your position I would like to avoid unnecessary
motion practice and would ask you to accept service of the
complaint for your client. There is plenty of time under the SOL
so if necessary I can effectuate service assuming the Court rules
in your favor. I think it would be better if we work together and
get discovery going.
Id. at Exhibit B.
Appellee’s counsel responded on May 11, 2012:
I am not authorized to accept service. Sorry.
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Id.
On May 16, 2012, Appellants’ counsel responded to Appellee’s counsel:
Thank you for the response. I will advise my client and will
extend the same courtesies to your client during this litigation.
Id.
Later the same day, Appellee’s counsel wrote:
Service of process is not an issue of professional courtesy. This
is not the same as needing some extra time on an answer, brief,
or discovery responses.
McDonald’s does not let anyone accept service for them. It has
nothing to do with you or me.
Id.
Appellee’s preliminary objections to the amended complaint also
attached a May 29, 2012 email from Appellee’s counsel to Appellants’
counsel discussing substitution of the franchise owner as the defendant:
I have tried to call you regarding the above. I have had
communications with McDonalds [sic]. Please see attached
affidavit.
I would like to talk to you about substituting the franchise owner
for McDonalds [sic]. This franchise has $1 million dollars [sic] in
coverage which seem [sic] to make McDonald [sic] Corporation
an unnecessary target.
Thank you.
Id. at Exhibit C.
The email refers to the affidavit of David Bartlett (the “Bartlett
Affidavit”), which is also a part of Exhibit C. Bartlett identifies himself as
Appellee’s managing counsel. Bartlett Affidavit at ¶ 1. The affidavit alleges
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Appellee does not own or operate the Pottsville McDonald’s. Id. at ¶¶ 3-4.
Specifically, Appellee does not hire and discharge employees, file tax
returns, pay utilities, sell products, supply products, or have any other
connection to the day-to-day operation of the Pottsville McDonald’s. Id. at
¶¶ 5-11. Finally, the Bartlett Affidavit alleges W. Pace Limited Partnership
owns and operates the Pottsville McDonald’s pursuant to a franchise
agreement. Id. at ¶ 12.
On May 8, 2013, Appellants filed preliminary objections to Appellee’s
preliminary objections, alleging Appellee’s preliminary objections were
untimely. Appellants further alleged the untimely preliminary objections
prejudiced them because the statute of limitations expired on February 11,
2013. Appellants also alleged the email correspondence between counsel
did not excuse Appellee’s untimely preliminary objections. Appellants
alleged Appellee’s preliminary objections came in response to a letter
threatening to file a default notice.
Appellee filed a response to Appellants’ preliminary objections dated
May 14, 2013. Appellee alleged Appellants never completed service of
original process, and that Appellants failed to serve the amended complaint
on Appellee’s counsel in accordance with Pa.R.C.P. 440, governing service of
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papers other than original process.1 Appellee also alleged it filed the
preliminary objections because Appellants allowed the statute of limitations
to run without serving their complaint on Appellee.
On July 3, 2013, the trial court dismissed Appellants’ preliminary
objections, ruling Appellee’s preliminary objections were not time-barred
because the docket failed to reflect proper service on Appellee. The trial
court permitted Appellants to file an answer to Appellee’s preliminary
objections, and they did so on July 18, 2013. The answer alleged counsel
entered an appearance on behalf of Appellee by filing preliminary objections
to the original complaint, and that they served the amended complaint on
Appellee’s counsel of record.2 Answer to [Appellee’s] Preliminary Objections,
7/18/13, at ¶ 6. Appellants also disputed Appellee’s assertion that it does
not own the Pottsville McDonald’s. Appellants attached to their July 18,
2013 filing a document from the Schuylkill County Assessment Bureau
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1
Rule 440 provides for copies of papers other than original process to be
served on another party’s counsel by handing, mailing, or faxing them to
counsel. Pa.R.C.P. 440. Appellants’ counsel did not use any of these
methods, instead sending the amended complaint to Appellee’s counsel as
an email attachment.
2
Where a party files a pleading for the sole purpose of challenging
jurisdiction, the court may treat the pleading as a special appearance and
not as consent to personal jurisdiction. Bergere v. Bergere, 527 A.2d 171,
174 (Pa. Super. 1987). Appellants do not argue this point in their appellate
brief.
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indicating Appellee owns the land on which the Pottsville McDonald’s stands.
Id. at Exhibit 1.
In response, on August 8, 2013, Appellee filed an affidavit from Wayne
Pace (the “Pace Affidavit”). The Pace Affidavit corroborates information
contained in the Bartlett Affidavit. Specifically, the Pace Affidavit alleges
Wayne Pace’s partnership, known as W. Pace Limited Partnership, owns and
operates the Pottsville McDonald’s. Id. at ¶ 2. The Pace Affidavit alleges
the Pottsville McDonald’s is a “McDonald’s Corporation franchise” operating
pursuant to a franchise agreement. Id. The Pace Affidavit further alleges
Appellee was not the owner or operator of the Pottsville McDonald’s on the
day of the accident or any time thereafter, and that Appellee does not
conduct regular business at the Pottsville McDonald’s. Id. at ¶¶ 7-9. The
Pace affidavit avers Appellee owns the property on which the Pottsville
McDonald’s is located and was leasing it to W. Pace Limited Partnership as of
the date of the alleged slip and fall. Id. at ¶ 13.
On January 6, 2014, the trial court entered an order giving the parties
60 days to conduct discovery, inasmuch as Appellee’s preliminary objections
and Appellants’ answer thereto raised a question of fact.3 The parties took
____________________________________________
3
Pa.R.C.P. 1028 authorizes the trial court’s course of action here. The note
to Rule 1028 explains: “Preliminary objections raising an issue under
subdivision (a)(1), […] cannot be determined from facts of record.” In other
words, a dispute over proper service cannot be resolved by reference to
facts pled in the complaint. Additional evidence is required. Rule
(Footnote Continued Next Page)
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no action during this sixty-day period. On May 1, 2014, well after the
expiration of the discovery period, Appellants filed a motion for enlargement
of the discovery period. In that motion and the accompanying brief,
Appellants offered no explanation why they needed more time or why they
failed to meet the trial court’s original 60-day deadline. On May 2, 2014, the
trial court entered the order on appeal without having received Appellants’
motion for enlargement of time. The trial court noted it did not receive the
motion for enlargement of time until Appellants filed their May 22, 2014
appeal from the May 2, 2014 order. The court therefore dismissed the
motion as moot.
Appellants frame the issues on appeal as follows:
A. Whether [Appellee] was properly served, as it owned
the property where it was served, which was a
McDonald’s restaurant?
B. Whether the trial court erred when it granted
[Appellee’s] preliminary objections which were filed
over 300 days late?
Appellants’ Brief at 4.
In reviewing an order sustaining preliminary objections, our standard
of review is de novo and our scope of review is plenary. Morrison
Informatics, Inc. v. Members 1st Fed. Credit Union, 97 A.3d 1233, 1237
_______________________
(Footnote Continued)
1028(c)(2) provides that where “an issue of fact is raised, the court shall
consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2).
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(Pa. Super. 2014). We must determine whether the trial court committed
an error of law. Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super.
2012). “When a defendant challenges the court’s assertion of personal
jurisdiction, that defendant bears the burden of supporting such objections
to jurisdiction by presenting evidence.” De Lage Landen Fin. Servs., Inc.
v. Urban P'ship, LLC, 903 A.2d 586, 590 (Pa. Super. 2006). “The burden
of proof only shifts to the plaintiff after the defendant has presented
affidavits or other evidence in support of its preliminary objections
challenging jurisdiction.” Id.
Appellee filed its preliminary objections pursuant to Pa.R.C.P.
1028(a)(1). That subsection permits a preliminary objection based on
improper service. Rule 424 governs service on corporations:
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. “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.” Cintas Corp. v. Lee’s Cleaning Servs.,
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700 A.2d 915, 917 (Pa. 1997). Appellants argue that service on the
manager of the Pottsville McDonald’s constituted service on the manager of
a regular place of business in accord with Rule 424(2).
Appellants rely on Goldstein v. Carillon Hotel of Miami Beach, 227
A.2d 646 (Pa. 1967). There, the plaintiff sued the defendant hotel for a slip
and fall that occurred while she was staying at a hotel located in Miami
Beach, Florida. Id. at 647. The plaintiff served process on the employee of
an office defendant maintained at a hotel located in Philadelphia. Id. Our
Supreme Court held that service in the Philadelphia office was sufficient
service process on the hotel, which operated as a partnership. Id. at 648-
49. The Supreme Court noted that the personnel in Philadelphia were
employees of the Florida hotel who were authorized to issue confirmed
reservations for stays at the Florida hotel. Id. at 648. All money and
supplies for the Philadelphia office came from the Florida hotel. Id. As
such, the Philadelphia office was a regular place of business of the Florida
hotel.
Goldstein does not support Appellants’ argument. The Philadelphia
employee who accepted service was directly employed by the Florida hotel,
and the Florida hotel paid for and maintained the office where the
Philadelphia employee worked. Here, the Bartlett and Pace Affidavits clearly
indicate Appellee was not involved in the day-to-day operations of the
Pottsville McDonald’s. Thus, the manager who accepted service was not
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Appellee’s employee. Unlike the situation in Goldstein, Appellee does not
hire the employees, pay for supplies, or otherwise support the Pottsville
McDonald’s. Nothing in Goldstein supports a conclusion that service on the
manager of a McDonald’s franchise constitutes service on Appellee.
Appellants also rely on Cintas. The Cintas Court considered whether
service on a receptionist was service on a person in charge for purposes of
Rule 424(2). Cintas, 700 A.2d at 916. In dicta,4 the Supreme Court held
“there must be a sufficient connection between the person served and the
defendant to demonstrate that service was reasonably calculated to give the
defendant notice of the action against it.” Id. at 920. Thus, the appellant
was unable to have the judgment against it stricken based on improper
service. Id.
Cintas also fails to support Appellants’ argument. Appellee does not
dispute (or concede) that the manager on duty who was served the original
complaint at the Pottsville McDonald’s was a person in charge for purposes
of Rule 424(2). Ultimately, that question is irrelevant to the outcome of this
appeal. This case does not turn on whether Appellants served a person in
charge at the Pottsville McDonald’s. Rather, this case turns on whether the
Appellant served a person at the Pottsville McDonald’s who was authorized
____________________________________________
4
The issue was not properly before the Court because the appellant filed a
petition to strike (not open) the judgment, and the authority of the person
who accepted service was not apparent from the face of the record. Id. at
918-19.
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to accept service on behalf of the Appellee under Rule 424. The trial court
found it was not. Appellants’ reliance on Cintas is misplaced.
Finally, Appellants cite Romeo v. Looks, 535 A.2d 1101, 1105 (Pa.
Super. 1987), appeal denied, 542 A.2d 1370 (Pa. 1988) for the proposition
that service of process is sufficient if it provides the defendant adequate
notice of the lawsuit filed against it. While we agree with this well-settled
proposition, it does nothing to answer the question before us, namely,
whether service at the location of a McDonald’s franchise constitutes service
on Appellee, the corporate franchisor.
Addressing this service issue of fact pursuant to Rule 1028(c)(2),5
Appellee offered two affidavits establishing that no relationship exists
between Appellee and the Pottsville McDonald’s, outside of the franchise and
lease agreements for the land on which the Pottsville McDonald’s stands.
Pursuant to DeLage, these affidavits were sufficient to place the burden on
Appellants to come forward with evidence establishing the contrary.
Appellants did not do so. Appellants produced only a document confirming
Appellee’s ownership of the property. Appellee does not dispute that point.
Appellants however, failed to establish that they served a person at the
Pottsville McDonald’s who qualified as one of those persons authorized under
Rule 424 to accept service on behalf of the Appellee. It was not sufficient
____________________________________________
5
See note three, supra.
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for the Appellant to serve an employee of the Pottsville McDonald’s not
employed or authorized to act on behalf of the Appellee, an absent landlord
and franchisor, to perfect service on the Appellee under Rule 424.
Regardless of whether the Appellee could be considered to regularly conduct
business at the Pottsville McDonald’s site based upon its ownership of the
real estate, Appellants still were obligated to serve a person authorized to
accept service on behalf of the Appellee. They did not do so. Based on all of
the foregoing, we conclude the trial court did not err in finding Appellants
failed to serve process on Appellee.
Appellants also argue the trial court erred in sustaining Appellee’s
preliminary objections because they were untimely. Appellee filed its
preliminary objections more than 11 months after Appellants filed the
amended complaint. Appellants rely on Pa.R.C.P. 1026(a), which provides
that “every pleading subsequent to the complaint shall be filed within twenty
days after service of the preceding pleading[.]” Pa.R.C.P. 1026(a). We
have already explained why Appellants failed to establish they served the
complaint on Appellee. Appellee correctly asserts that, under the plain
language of Rule 1026(a), the twenty-day requirement applies only “after
service” of the preceding pleading. Since service never occurred, the Rule
1026(a) timeliness requirement posed no impediment to Appellee’s
preliminary objections.
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Appellants further argue they have been unfairly prejudiced by
Appellee’s decision to file preliminary objections after the applicable two-
year statute of limitations period expired.6 Appellants’ failure to serve
process on Appellee severely undercuts this argument. Furthermore, the
facts as found by the trial court indicate Appellants were at fault for
permitting the statute of limitations to expire:
[Appellants] were aware of the questionable service since
on or about April 25, 2012. [Appellants] filed an amended
complaint in response to the preliminary objections alleging
improper service. They modified the complaint to assert that
[Appellee] has a restaurant located at Route 61 and Tunnel
Road, Route 61 North, Pottsville, PA 17901. They did not take
any steps to correct the deficiencies in service alleged in the
preliminary objections to the original complaint. [Appellee] also
provided evidence that it informed [Appellants] of the name of
the franchise owner well before the running of the statute of
limitations.
This court allowed [Appellants] to conduct discovery and
provide evidence of service before ruling on [Appellee’s]
preliminary objections. The court Order provided that this court
would rule on the preliminary objections at the close of 60 days
based upon the evidence of record. [Appellants] failed to
provide any additional information to this Court in support of its
position that the [Pottsville McDonald’s] was a regular place of
business of [Appellee]. [Appellee] filed two affidavits indicating
its lack of ownership in the business and identifying the franchise
owner. [Appellants] did not file any documents or motions until
approximately 115 days after the Order that allowed them 60
days to provide such evidence before the Court would rule on
the objections. After 115 days, they filed a Motion for Extension
of Time, which this Court did not address as we did not receive it
before we lost jurisdiction over the case due to the Notice of
____________________________________________
6
Appellants concede the two-year statute of limitations expired on February
11, 2013. See 42 Pa.C.S.A. § 5524(2).
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Appeal. Furthermore, there was no evidence on the record that
the Plaintiffs ever properly served McDonald’s Corporation, which
was the basis for this Court’s dismissal of the action.
Trial Court Opinion, 7/17/14, at 7-8.
Regardless of their characterization of Appellee’s tactics, Appellants
had sufficient information and sufficient time to effect service before the
two-year limitations period expired. Appellee did not prevent Appellants
from timely serving process at Appellee’s corporate offices if they believed
Appellee was the proper defendant and subject to the trial court’s
jurisdiction. Indeed, Appellants’ counsel, in his May 2, 2012 email to
Appellee’s counsel, noted he had time under the “SOL” to effect service on
Appellee in the event counsel refused to accept service. Preliminary
Objections to Plaintiffs’ Amended Complaint, 4/19/13, at Exhibit B. Despite
this, Appellants took no further action to effect service. Appellee’s counsel
provided the Bartlett Affidavit to Appellants’ counsel as an attachment to his
May 29, 2012 email. Id. at Exhibit C. The Bartlett Affidavit identified W.
Pace Limited Partnership as the McDonald’s franchisee. Appellants made no
effort to substitute the franchisee for Appellee or add it as an additional
defendant.
In summary, the record supports the trial court’s findings that
Appellants had sufficient information to effect proper service within the
statute of limitations period. Some of that information came in the form of
an affidavit from the franchise owner filed by Appellee.
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For all of the foregoing reasons, we conclude the trial court did not err
in sustaining Appellee’s preliminary objections.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2015
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