Hackett, K. v. Home Solutions Group

J-S37003-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

KATHLEEN HACKETT : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HOME SOLUTIONS GROUP, LLC, M :
SQUARED GROUP, LLC, GARY J. :
MURRAY, JR., RAOUL SEQUIERA : No. 380 EDA 2021
AND KARINA BURDA :
:
:
APPEAL OF: HOME SOLUTIONS :
GROUP, LLC, M SQUARED GROUP, :
LLC, AND GARY J. MURRAY, JR. :

Appeal from the Order Entered January 7, 2021
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): No. 190202344

BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.: FILED MARCH 07, 2022

Home Solutions Group, LLC, M Squared Group, LLC, and Gary J. Murray,

Jr., (collectively “the Appellants”) appeal from the order denying their motion

to strike and/or open the default judgments entered in favor of Kathleen

Hackett. The Appellants argue that Hackett failed to properly serve the

complaint, and therefore, the default judgments were improperly entered. We

affirm.

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* Former Justice specially assigned to the Superior Court.
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Hackett owns three contiguous lots in the Kensington South section of

Philadelphia, which she has maintained as a garden for more than thirty years.

M Squared and Home Solutions owned the properties on either side of

Hackett’s garden lots. Murray was the principal owner of both M Squared and

Home Solutions.

Beginning in 2018, M Squared and Home Solutions started construction

projects on either side of Hackett’s lots and used her land as a dumping ground

for materials, excavated a five-foot area of Hackett’s property, encroached on

Hackett’s property, and cut back a cherry tree that was planted by Hackett’s

son, who has since died. On February 22, 2019, Hackett filed a complaint

against the Appellants for trespass, boundary line encroachment, and

negligent infliction of emotional distress.1 Relevantly, in the complaint,

Hackett indicated that Home Solutions is a domestic LLC, which was registered

with the Pennsylvania Corporation Bureau at 93 Old York Road, Suite 1-546,

Jenkinstown, Pennsylvania. However, Hackett further averred that Home

Solutions does business from Murray’s residence on Thyme Lane, Philadelphia.

Hackett also noted that M Squared was registered as an LLC with the

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1 After filing the suit, Hackett recorded a lis pendens on March 4, 2019, to
stop the prospective sale of Home Solutions’s property and receive
compensation for her damages. Thereafter, Murray signed a deed transferring
title of Home Solutions’s property to Raoul Sequeira and Karian Burda for
$502,000. Prior to the filing of Hackett’s complaint, M Squared sold its
neighboring property. Notably, the sales agreement on behalf of M Squared
was signed by Gary Murray, without any differentiation or use of Jr. or Sr.

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Pennsylvania Corporation Bureau at 836 N. 3rd Street, Philadelphia. Finally,

Hackett stated that Murray conducted business from his residence on Thyme

Lane, and at all times acted as an authorized agent for M Squared and Home

Solutions.

Subsequently, in March 2019, Hackett filed an affidavit of service,

indicating that Murray had been served with the complaint at Thyme Lane,

through his father, Gary Murray, Sr., with whom Murray resided. Hackett filed

a separate affidavit of service, indicating that Home Solutions had been served

with the complaint at Thyme Lane, through Gary Murray, Sr., an agent, or

person in charge of the party’s office or usual place of business. Likewise,

Hackett filed an affidavit of service, indicating that M Squared had been served

with the complaint at Thyme Lane, through Gary Murray, Sr., an agent, or

person in charge of the party’s office or usual place of business.2 The

Appellants did not respond to Hackett’s complaint.

Consequently, upon praecipe by Hackett, the trial court entered default

judgment against M Squared on June 18, 2019, and Murray and Home

Solutions on August 6, 2019. The trial court indicated that it would later assess

damages against the Appellants. Thereafter, Hackett filed an amended

complaint, wherein she restated her averments against the Appellants and

raised additional claims against Sequeira and Burda. Subsequently, the trial

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2An attempt to serve M Squared at the address provided to the Pennsylvania
Department of State Corporations Bureau was unsuccessful.

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court scheduled trial for November 23, 2020. Although Hackett filed an

affidavit of service, indicating that the Appellants were served with notice of

the trial at Thyme Lane, the Appellants did not appear. Ultimately, the trial

court found in favor of Hackett and against the Appellants in the amount of

$100,000. The trial court also found in favor of Sequeira and Burda.

On December 11, 2020, the Appellants filed a petition to strike and/or

open the default judgments against them, arguing that the three affidavits of

service did not properly reflect service of the complaint upon them. More

specifically, the Appellants argued that Hackett knew, or should have known,

that at the time service was effectuated, Murray did not reside at Thyme Lane,

and neither Home Solutions nor M Squared did business at Thyme Lane. The

Appellants indicated that Murray lived on 4th Street, Philadelphia in March

2019, and that Murray last resided at Thyme Lane in 2013, over 5 years prior

to Hackett’s alleged service on Gary Murray, Sr. The Appellants also maintain

that they first became aware of this action on December 7, 2020, due to an

unrelated docket search by their counsel.

In response to the Appellants’ petition to strike and/or open, Hackett

emphasized that the evidence and information provided by the Appellants

confirmed that Thyme Lane was a good address to effectuate service on

Murray, M Squared, and Home Solutions, and that service of the complaints

was properly provided to Gary Murray, Sr. More specifically, Hackett affirmed

that Murray lived at Thyme Lane, and the complaint was properly provided to

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Gary Murray, Sr., an adult member of the family where Murray resided.

Hackett further disputed the Appellants’ bald claim that Murray lived on N. 4th

Street in March 2019, highlighting that the Appellants offered no proof to

support the claim. Hackett also noted that the N. 4th Street address is owned

by one of Murray’s development companies, which lists a mailing address of

Thyme Lane for the owner. Additionally, Hackett argued that service provided

to Gary Murray, Sr., regarding Home Solutions and M Squared at Thyme Lane

was proper. Hackett presented supplemental material establishing that Gary

Murray, Sr., was listed as an organizing member and vice president of Home

Solutions; the deed for Home Solutions’s neighboring property listed Home

Solutions’ address as Thyme Lane; an agreement between Philadelphia

Redevelopment Authority and Home Solutions regarding Home Solutions’s

property that provided notices be sent to Thyme Lane; a letter from

Philadelphia License and Inspections Commissioner citing Home Solutions’s

address as Thyme Lane; a mortgage and security agreement for the two

properties identified “Gary Murray” with an address of Thyme Lane; a

certificate of organization for M Squared identifying Murray as an organizer

with an address of Thyme Lane; and M Squared listed its address at Thyme

Lane for purposes of Licenses and Inspections, appeals to the Zoning Board

of Adjustment, and the Department of Records.

The trial court ultimately denied the petition to strike and/or open

without a hearing. The Appellants filed a motion for reconsideration. Attached

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to this motion, the Appellants, for the first time, attached a Comcast cable bill

from March 2019, which purportedly established that Murray lived on N. 4th

Street at the time. Additionally, with regard to Home Solutions, the Appellants

submitted a membership certificate, dated June 1, 2003, and an operating

agreement, from 2007, evidencing that Murray was its sole member. The trial

court denied the motion. This timely appeal followed.

On appeal, the Appellants raise the following questions for our review:

I. Whether the trial court erred in refusing to strike or in the
alternative open a default judgement when the court relied
on evidence submitted by [Hackett] that de hors the record,
capriciously disregarded Appellants’ evidence submitted in
support of the petition to open and failed to schedule a
record hearing to allow for the development of a record on
service efforts?

II. Whether the record includes any evidence as to valid
personal service on Gary J. Murray Jr. in his personal
capacity?

Brief for Appellants at 4 (capitalization omitted).

The Appellants first contend the trial court erred in denying their petition

to strike and/or open default judgments without conducting an evidentiary

hearing on the service of process dispute. See id. at 14, 16, 17-18. The

Appellants argue that the trial court relied on documents attached to Hackett’s

answer, which were outside the trial court’s record, to deny the petition,

without considering their documentary evidence. See id. at 16-18.

Specifically, the Appellants assert that the trial court did not consider Murray’s

personal Comcast cable bill for his residence on N. 4th Street from March

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2019, which substantiated Murray’s proper residence, and a membership

certificate and operating agreement for Home Solutions, which established

that Murray was its sole member. See id. at 17-18. The Appellants claim that

once there was competing evidence regarding Murray’s address, the trial court

was required to hold a “hearing thereon at which the burden rests upon the

one seeking to open the default judgment[.]” Id. at 15 (quoting Johnson v.

Leffring, 235 A.2d 435, 436 (Pa. Super. 1967)).

The Rules of Civil Procedure governing petition practice for petitions to

strike and/or open do not mandate that the trial court hold an evidentiary

hearing prior to ruling on the petition, but rather leaves it to discretion of the

trial court. See Pa.R.C.P. 206.5(d), cmt. (stating that “the court might prefer

to hold a hearing to determine facts and . . . [t]he court might also decide not

to hold hearing or oral argument and decide the matter on briefs alone.”);

see also Pa.R.C.P. 206.6, cmt. (noting that “the court might decide the matter

on briefs alone without a hearing or oral argument”). Moreover, the Court of

Common Pleas of Philadelphia County has promulgated Local Rule *206.4(c),

which provides that “[a] [h]earing or [a]rgument shall be scheduled at the

discretion of the Assigned Judge[.]” Phila.Civ.R. *206.4(c).

As an initial matter, the Appellants do not provide any analysis as to the

continued viability of Johnson in light of Local Rule *206.4 and Pa.R.C.P.

206.5(d) or acknowledge the fact that the trial court had discretion in whether

to hold a hearing on the service issue. Here, there existed no dispute as to

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material fact that required fact-finding prior to the trial court’s resolution of

Appellants’ petition to strike and/or open. In this regard, the parties agree

that Hackett purported to effectuate service on Murray, Home Solutions

Group, and M Squared by serving Murray’s father at Thyme Lane. The only

dispute between the parties is whether such service provided proper notice to

the Appellants. In their petition to strike or open the default judgment,

Appellants provided only a bare assertion that Thyme Lane was not Murray’s

residence at the time service was attempted. In contrast, in her answer,

Hackett provided a multitude of documents indicating that legal notices

regarding Home Solutions’s and M Squared’s properties be sent to the

residence on Thyme Street.

Moreover, the Appellants’ attachment of a cable bill for N. 4th Street

from March 2019, and a certificate of organization for Home Solutions to its

motion for reconsideration, do not establish a dispute of material fact

regarding the service issue because the trial court is not required to consider

new evidence presented for the first time in a reconsideration motion. See

Bollard & Assocs., Inc. v. H & R Indus., Inc., 161 A.3d 254, 256 (Pa.

Super. 2017).3 Under these circumstances, we cannot conclude the trial court

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3 We note that the Appellants make much of the fact that the trial court
considered the documents attached to Hackett’s answer to the petition to
strike and/or open. However, the Appellants have not established how the
trial court’s consideration of these documents, which were part of the record,
required that it hold an evidentiary hearing. Indeed, these documents spoke
(Footnote Continued Next Page)

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abused its discretion in finding, without a hearing, that service was

accomplished. See Capstone Cap. Grp., LLC v. Alexander Perry, Inc., 263

A.3d 1178, 1185 (Pa. Super. 2021) (acknowledging that under Local Rule

*206.4, the Philadelphia County Court of Common Pleas did not abuse its

discretion in declining to hold a hearing in considering a petition to open a

default judgment, as there was no dispute that required fact-finding prior to

the trial court’s resolution of the petition); Neducsin v. Caplan, 121 A.3d

498, 510 (Pa. Super. 2015) (concluding that because appellant failed to

support his allegations in the petition to open judgment, the trial court had no

need to conduct an evidentiary hearing).

We also reject Appellants’ reliance on Frycklund v. Way, 599 A.2d

1332 (Pa. Super. 1991), to establish that an evidentiary hearing for a petition

to strike and/or open was required. First, Frycklund addressed the

defendant’s preliminary objections, not a petition to open/strike. Importantly,

however, this Court did not mandate an evidentiary hearing to address the

defendant’s preliminary objections regarding service issues but instead held

that a trial court may hold an evidentiary hearing when determining whether

a given place is the defendant’s residence. See Frycklund, 599 A.2d at 1333-

34.

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to the central dispute in this case — whether Hackett properly served the
Appellants at Thyme Lane.

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The Appellants next contend that they presented evidence to support

opening or striking the default judgment. See Brief for Appellants at 19.

According to the Appellants, “a fatal defect exists on the face of the record,”

because Hackett improperly effectuated service on Murray, Home Solutions,

and M Squared by serving Murray’s father at Thyme Lane. Id. at 19-20. The

Appellants suggest that the record is devoid of any evidence that he resided

at his father’s home. See id. at 24. The Appellants further claim that Murray’s

father was not Murray’s agent or a person in charge of the businesses, and,

therefore, did not have authority to accept service on behalf of Murray, Home

Solutions, or M Squared. See id. at 20, 22. The Appellants conclude that the

trial court summarily disregarded their evidence regarding Murray’s home

address, and that the trial court’s order should be “stricken” and/or vacated

and remanded for an evidentiary hearing. See id. at 23, 25.

Preliminarily, although the Appellants set forth the standards of review

for both a petition to strike and open, they, in arguing there is a fatal defect

on the face of the record and the trial court’s order should be “stricken,”

appear to only raise a claim regarding the denial of their petition to strike.4 To

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4 In their Statement of Questions Involved, the Appellants only raise a claim
regarding personal service of Murray and do not include similar claims
concerning M Squared or Home Solutions. Pa.R.A.P. 2116(a) states that “[n]o
question will be considered unless it is stated in the statement of questions
involved or is fairly suggested thereby.” Pa.R.A.P. 2116(a). Despite the
Appellants’ failure in this regard, we will address their claims as they are
interrelated.

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that end, the Appellants fail to acknowledge that petitions to open and strike

are different remedies subject to different standards. See U.S. Bank Nat’l

Ass’n for Pennsylvania Hous. Fin. Agency v. Watters, 163 A.3d 1019,

1027 (Pa. Super. 2017). Indeed, although the Appellants generally seek a

remand for an evidentiary hearing to further develop the record regarding

where Murray lived and whether Murray’s father was an executive for Home

Solutions, they ignore that a petition to strike is proper only when the defect

in the original judgment appears on the face of the record at the time the

judgment was entered. See Digital Commc’ns Warehouse, Inc. v. Allen

Invs., LLC, 223 A.3d 278, 287 (Pa. Super. 2019).

On the other hand, if the truth of the factual averments contained in

such record are disputed, such as the substance of the Appellants’ argument

here, “then the remedy is by a proceeding to open the judgment and not to

strike.” Id. (citation omitted). Nevertheless, despite the Appellants’ failure to

properly differentiate the remedies available to them, we will review the trial

court’s decision to deny both the petition to strike and open.

We begin by noting that a petition to strike a default judgment presents

the lower court with a question of law; consequently, on appeal, our standard

of review is de novo, and our scope of review is plenary. See Oswald v. WB

Pub. Square Assocs., LLC, 80 A.3d 790, 793 (Pa. Super. 2013). “A petition

to strike a judgment is a common law proceeding which operates as a

demurrer to the record.” Digital Commc’ns Warehouse, 223 A.3d at 284

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(citation omitted). “A petition to strike a judgment may be granted only for a

fatal defect or irregularity appearing on the face of the record.” Id. (citation

omitted). When deciding if there are fatal defects on the face of the record for

the purposes of a petition to strike a default judgment, the court will be limited

to a review of only the record as filed by the party seeking to uphold the

judgment — the complaint and the documents containing the judgment

clauses. See Resolution Trust Corp. v. Copley Qu-Wayne Associates,

683 A.2d 269, 273 (Pa. 1996).

“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.” Trexler v. McDonald’s Corp., 118 A.3d 408, 412 (Pa.

Super. 2015) (citation omitted). Here, the parties dispute service to Murray,

as an individual under Pa.R.C.P. 402, and Home Solutions and M Squared

under Pa.R.C.P. 424. Relevantly, Rule 402 allows for original process to be

served “at the residence of the defendant to an adult member of the family

with whom he resides; but if no adult member of the family is found, then to

an adult person in charge of such residence[.]” Pa.R.C.P. 402(a)(2)(i).

Additionally, Rule 424 states the following:

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

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(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.

Here, in considering the Appellants’ petition to strike and looking

exclusively at the record at the time the default judgment was entered, we

are unable to ascertain any fatal defect on the record. Indeed, the record

indicated that Murray lived at the Thyme Lane residence, and the complaint

was properly served on Murray’s father, who is an adult member of the family

with whom Murray resides. Likewise, Hackett properly effectuated service on

Home Solutions and M Squared under Pa.R.C.P. 424. The record establishes

that Murray, as the principal of Home Solutions and M Squared, conducted

business at Thyme Lane. In this regard, Hackett properly served Murray’s

father, who was the owner of the home and was a “person for the time being

in charge” of the regular place of business. Cintas Corporation v. Lee’s

Cleaning Service, Inc., 700 A.2d 915, 920 (Pa. 1997) (stating that service

on a “person for the time being in charge” is proper when there is “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.”). Moreover, the Appellants’ arguments that Murray did not live at

Thyme Lane and Murray’s father could not accept service on behalf of Murray,

Home Solutions, and M Squared cannot be considered in a motion to strike as

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any such evidence was outside the record. See Digital Commc’ns

Warehouse, 223 A.3d at 287-88 (recognizing that defendant’s argument that

the individual who signed the return receipt cards was not an authorized agent

could not be considered in a motion to strike because any such evidence was

outside the record). Based on this record, the trial court did not err in denying

Appellants’ petition to strike, as there was no fatal defect appearing of record.5

Furthermore, while the Appellants failed to provide any substantive

analysis of the trial court’s denial of their petition to open, we conclude that

the trial court did not abuse its discretion in denying the petition to open.

Initially, we observe that “[a] petition to open a default judgment is an appeal

to the equitable powers of the court.” Watters, 163 A.3d at 1028 (citation

omitted). “The decision to grant or deny a petition to open a default judgment

is within the sound discretion of the trial court, and we will not overturn that

decision absent a manifest abuse of discretion or error of law.” Id. Generally,

“a default judgment may be opened if the moving party has (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

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5 In its opinion, the trial court references evidence provided by Hackett in her
answer to the Appellants’ motion to strike/open. To the extent the trial court
relied on such evidence, it erred. Nevertheless, we conclude that the trial
court’s conclusion denying the motion to strike was proper. See Grabowski
v. Carelink Cmty. Support Servs., Inc., 230 A.3d 465, 472 n.3 (Pa. Super.
2020) (stating that “we may affirm a trial court’s decision if there is
a proper basis for the result reached, even if it is different than the basis relied
upon by the trial court”).

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meritorious defense to the allegations contained in the complaint.” Digital

Commc’ns Warehouse, 223 A.3d at 285 (citation omitted). “However,

where the party seeking to open a judgment asserts that service was

improper, a court must address this issue first before considering any other

factors.” Id. at 288. Further, “[w]hen determining a petition to open a

judgment, matters dehors the record filed by the party in whose favor the

warrant is given, i.e., testimony, depositions, admissions, and other evidence,

may be considered by the court.” Resolution Trust Corp., 683 A.2d at 273

(citation omitted).

Here, there was ample evidence establishing that Murray’s address was

the Thyme Lane residence at the time of service. Specifically, Murray listed

Thyme Lane as his personal address in the certificate of organization for M

Squared, the mortgage agreement for both Home Solutions’s property and M

Squared’s property identify “Gary Murray” as residing at Thyme Lane; and the

agreement between the Philadelphia Redevelopment Authority and Home

Solutions regarding Home Solutions’s property provided for notices to be sent

to Home Services “c/o Gary Murray, Jr. [] Thyme Lane, Philadelphia, 19128.”

Agreement, 10/23/13, at 12. Moreover, as noted above, Appellants failed to

offer any evidence in their petition establishing that Murray lived on N. 4th

Street in March 2019. See Dominic’s Inc. v. Tony’s Famous Tomato Pie

Bar & Rest., Inc., 214 A.3d 259, 270 (Pa. Super. 2019) (stating that the

“petitioning party [in a default judgment] bears the burden of producing

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sufficient evidence to substantiate its alleged defenses”). Therefore, Hackett

properly served the complaint on Murray’s father, “an adult member of the

family with whom [Murray] resides[.]” Pa.R.C.P. 402(a)(2)(i).

Moreover, the evidence established that Gary Murray, Sr., was an

organizing member and vice president (executive officer) of Home Solutions

Group, the deed for Home Solutions’s property listed Home Solutions’ address

as the Thyme Lane residence, and an agreement between Philadelphia

Redevelopment Authority and Home Solutions regarding Home Solutions’s

property provided that notices be sent to Thyme Lane. Accordingly, Murray’s

father properly accepted service on Home Solutions Group’s behalf at the

Thyme Lane residence under Rule 424.

Likewise, Murray’s father properly accepted service for M Squared at

Thyme Lane under Rule 424, as he was the owner of the home and was a

“person for the time being in charge” of the regular place of business. Indeed,

the certificate of organization for M Squared identified Murray as an organizer

with an address of Thyme Lane, and M Squared listed its address at Thyme

Lane for purposes of Licenses and Inspections, appeals to the Zoning Board

of Adjustment, and the Department of Records. Further, Hackett attempted

to serve M Squared at its corporate address but was unsuccessful. See Trial

Court Opinion, 7/13/21, at 6 (“It would be unjust to allow [the Appellants] to

insulate themselves from liability by pointing to addresses on the record that

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were listed for service but failed when service was attempted.”).6 Based upon

the foregoing, the trial court properly denied the Appellants’ petition to open

the default judgment.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/7/2022

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6 Finally, as the trial court articulated, the Appellants failed to file a petition to
open until over one year after the trial court entered the default judgments,
and their “excuse” that they only learned about the judgments inadvertently
through another docket search did not qualify as a reasonable excuse. See
Trial Court Opinion, 7/13/21, at 9-10; see also Digital Commc’ns
Warehouse, 223 A.3d at 286 (noting that in “cases where the appellate
courts have found a ‘prompt’ and timely filing of the petition to open a default
judgment, the period of delay has normally been less than one month”)
(citation omitted).

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