J-S27002-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
WELLS FARGO BANK, N.A. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JARELLE GREEN-HALEY :
:
Appellant : No. 723 EDA 2017
Appeal from the Order Entered January 26, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): December Term, 2012 No. 121200009
BEFORE: SHOGAN, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 28, 2018
Jarelle Green-Haley (“Appellant”) appeals pro se from the order entered
on January 26, 2017, denying his petition to strike a default judgment entered
in favor of Wells Fargo Bank, N.A. (“Wells Fargo” or “Appellee”) in the
underlying mortgage foreclosure action. After review, we affirm.
In its opinion, the trial court set forth the relevant facts of this case as
follows:
[Wells Fargo] initiated this mortgage foreclosure action
against [Appellant] on November 30, 2012 for defaulting on his
mortgage on the property located at 1963 Rowan Street,
Philadelphia, PA 19140. See Complaint filed November 30, 2012
generally. [Appellant] was personally served with the complaint at
his residence on December 11, 2012. See Affidavit of Service filed
December 12, 2012. Despite failing to appear at the first
conciliation conference, [Appellant] filed a motion to dismiss the
case, which the [c]ourt constructively denied by entering default
judgment. See Motion to Dismiss filed October 25, 2013; Entry of
Default Judgment docketed November 1, 2013. In compliance
with the conciliation conference listing order and as a result of
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[Appellant’s] failure to answer the complaint as required by the
Pennsylvania Rules of Civil Procedure, default judgment was
entered against [Appellant] on November 1, 2013. See Praecipe
for Entry of Judgment by Default filed on November 1, 2013.
[Appellant] subsequently filed a motion to vacate default
judgment asserting, among other arguments, lack of service of
process, which was denied. See Order entered January 9, 2014.
In addition, [Appellant] filed a motion to strike the pleadings,
which also was denied. See Order entered February 19, 2015.
[Appellant] then filed a motion to strike the default judgment that
was denied on August 17, 2015. See Order entered August 17,
2015. He appealed this decision to the Superior Court on
September 11, 2015.1 See Notice of Appeal docketed September
11, 2015. In the opinion accompanying the record sent to the
Superior Court, [the trial court] held [that the] original service of
process [was] proper. See Opinion filed November 25, 2015 at 7.
1 This appeal was dismissed [due to Appellant’s]
failure to comply with Pa.R.A.P. 3517 [(failure to file
a docketing statement)]. See Superior Court order
dated December 4, 2015.
[Appellant] then filed the motion to strike default judgment
and sheriff’s sale at issue in this appeal, asserting that the [c]ourt
lacked jurisdiction over him because there was no original service
of process and that the sheriff’s sale was based upon a void
judgment due to this lack of jurisdiction. See Motion to Strike filed
on November 18, 2016. [The trial court] denied this motion on
January 26, 2017. [Appellant] filed a timely appeal to the Superior
Court on February 14, 2017. See Notice of Appeal filed on
February 14, 2017.
Trial Court Opinion, 1/17/18, at 1-2.
Due to the delay between the entry of the default judgment on
November 1, 2013, and Appellant’s November 18, 2016 petition to strike the
default judgment, we address the issue of timeliness.
The effect of timeliness on petitions to strike default judgment
depends entirely upon the validity of the underlying judgment: If
the judgment was found to be void ... timeliness would not be a
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factor and the petition to strike would be granted. If the judgment
was found to be voidable, timeliness would be a factor and the
petition would be granted only if it was filed within a reasonable
time. Finally, if the judgment was found to be valid and fully
effective, the petition to strike would be denied and timeliness
would not be a factor[.] There is a clear distinction between
judgments which are simply voidable based upon mere
irregularities and those which are void ab initio. The general rule
is that if a judgment is sought to be stricken for an irregularity,
not jurisdictional in nature, which merely renders the judgment
voidable, the application to strike off must be made within a
reasonable time. Conversely, judgments which are void ab initio
are those which the prothonotary was without authority to enter
in the first place. Such judgments are not voidable, but are legal
nullities.
Oswald v. WB Public Square Associates, LLC, 80 A.3d 790, 797 (Pa.
Super. 2013) (internal citations and quotation marks omitted). “[A] default
judgment entered where there has not been strict compliance with the rules
of civil procedure is void.” Id. at 797 n.5 (citation omitted).
Appellant’s petition was filed three years after the default judgment was
entered in favor of Wells Fargo. Appellant argued in both his petition to strike
and on appeal that the default judgment was void due to defective service in
violation of the Pennsylvania Rules of Civil Procedure. Petition to Strike,
11/18/16, at ¶¶ 3-22; Appellant’s Brief at 5. “The courts of this
Commonwealth have long held that an individual may seek to strike a void
judgment at any time.” Mother’s Restaurant Inc. v. Krystkiewicz, 861
A.2d 327, 337 (Pa. Super. 2004). Additionally, “an individual may even seek
to strike a void judgment after a trial court has previously denied his/her
petition to open the same judgment.” Id. (citation omitted). Thus, the trial
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court had jurisdiction to assess the merits of Appellant’s petition to strike the
default judgment, and we conclude that this appeal is properly before our
Court. Id.
On appeal, Appellant raises the following issues for this Court’s
consideration:
1. Did Appellee fail to serve the foreclosure complaint upon
Appellant?
2. [Did] the Return of Service submitted to court fail to identify
the specific person that was served with the foreclosure
complaint?
3. Did the trial court have jurisdiction to enter a default judgment
against Appellant?
4. Is it a fatal defect on the face of the record if a default judgment
is improperly entered and the record does not support the
judgment at the time it was entered?
5. Is the trial court[’s] November 1, 2013 default judgment void
on its face?
6. Is a Sheriff Sale executed based upon a void judgment [] void
itself?
7. Did Appellee properly invoke the trial court subject matter
jurisdiction?
Appellant’s Brief at 1-2.1
We note that the aforementioned issues concern one over-arching
claim: Appellant’s averment that Wells Fargo did not properly serve him with
the November 30, 2012 complaint. It is on this basis alone that Appellant
____________________________________________
1 The trial court did not direct Appellant to file a Pa.R.A.P. 1925(b) statement.
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asserts that the trial court lacked jurisdiction from the outset and erred in
denying his petition to strike the default judgment.
An appeal regarding a petition to strike a default judgment implicates
the Pennsylvania Rules of Civil Procedure. Bank of New York Mellon v.
Johnson, 121 A.3d 1056, 1059 (Pa. Super. 2015) (citation omitted).
Issues regarding the operation of procedural rules of court present
us with questions of law. Therefore, our standard of review is de
novo and our scope of review is plenary.
A petition to strike a judgment is a common law proceeding which
operates as a demurrer to the record. A petition to strike a
judgment may be granted only for a fatal defect or irregularity
appearing on the face of the record. A petition to strike is not a
chance to review the merits of the allegations of a complaint.
Rather, a petition to strike is aimed at defects that affect the
validity of the judgment and that entitle the petitioner, as a matter
of law, to relief. A fatal defect on the face of the record denies the
prothonotary the authority to enter judgment. When a
prothonotary enters judgment without authority, that judgment is
void ab initio. When deciding if there are fatal defects on the face
of the record for the purposes of a petition to strike a default
judgment, a court may only look at what was in the record when
the judgment was entered.
Id. (internal brackets and citation omitted).
As noted, Appellant’s issue concerns service of process. Our Rules of
Civil Procedure provide, in relevant part, as follows:
(a) Original process may be served
(1) by handing a copy to the defendant; or
(2) by handing a copy
(i) at the residence of the defendant to an
adult member of the family with whom he
resides; but if no adult member of the
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family is found, then to an adult person in
charge of such residence; or
(ii) at the residence of the defendant to
the clerk or manager of the hotel, inn,
apartment house, boarding house or
other place of lodging at which he resides;
or
(iii) at any office or usual place of business
of the defendant to his agent or to the
person for the time being in charge
thereof.
Pa.R.C.P. 402(a).
Pa.R.C.P. 405 states:
(a) When service of original process has been made the sheriff or
other person making service shall make a return of service
forthwith. If service has not been made and the writ has not been
reissued or the complaint reinstated, a return of no service shall
be made upon the expiration of the period allowed for service.
(b) A return of service shall set forth the date, time, place and
manner of service, the identity of the person served and any other
facts necessary for the court to determine whether proper service
has been made.
(c) Proof of service by mail under Rule 403 shall include a return
receipt signed by the defendant or, if the defendant has refused
to accept mail service and the plaintiff thereafter has served the
defendant by ordinary mail,
(1) the returned letter with the notation that the
defendant refused to accept delivery, and
(2) an affidavit that the letter was mailed by ordinary
mail and was not returned within fifteen days after
mailing.
(d) A return of service by a person other than the sheriff shall be
by affidavit. If a person other than the sheriff makes a return of
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no service, the affidavit shall set forth with particularity the efforts
made to effect service.
(e) The return of service or of no service shall be filed with the
prothonotary.
(f) A return of service shall not be required when the defendant
accepts service of original process.
(g) The sheriff upon filing a return of service or of no service shall
notify by ordinary mail the party requesting service to be made
that service has or has not been made upon a named party.
Pa.R.C.P. 405.
Appellant baldly avers that Wells Fargo failed to serve him or any other
person with the complaint. Appellant’s Brief at 5, 6, 7, and 8; Appellant’s
Reply Brief at 1 and 2. Appellant’s argument is belied by the record.
Wells Fargo filed its complaint on November 30, 2012. On December 4,
2012, process server Brian Daly noted that he was unable to locate Appellant.
Affidavit/Return of Service, filed 12/7/12. However, one week later on
December 11, 2012, process server Jonathan Barnes personally served
Appellant with the complaint at 1:03 p.m. at Appellant’s residence.
Affidavit/Return of Service, filed 12/12/12. After reviewing Appellant’s
petition to strike the default judgment, the trial court found that service was
proper, there were no irregularities on the face of the record, and that it had
jurisdiction in the underlying matter. Trial Court Opinion, 1/17/18, at 3-4.
Accordingly, it denied Appellant’s petition to strike.
We agree with the trial court. The December 12, 2012 affidavit fulfilled
the requirements set forth in the Rules of Civil Procedure; the affidavit
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provided the date, time, place, and manner of service, and it identified the
person served as required by Rules 402 and 405. Accordingly, we conclude
that Appellant’s challenge to the service of the complaint is meritless.
Moreover, as noted above, improper service was the basis for each of
Appellant’s arguments. Having found that service was proper, we conclude
that Appellant’s remaining issues are meritless as well.
For the reasons set forth above, we conclude that Appellant is entitled
to no relief. Accordingly, we affirm the January 26, 2017 order denying
Appellant’s petition to strike the default judgment.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/18
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