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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
WILLIAM EDWARDS

v.

CHECKERS DRIVE

- IN RESTAURANTS, INC., SRI GUNINA, LLC, PANDYA RESTAURANTS, LLC, PANDYA REAL ESTATE HOLDINGS, LLC, PANDYA MANAGEMENT, LLC, BRANDON VENABLE, JIGNESH PANDYA, THE ROHAN GROUP, LLC, JOHN DOE #1, JANE DOE #1, JOHN DOE #2, JOHN DOE #3, JOHN DOE #4, JOHN DOE LLC OR CORPORATION #1, JOHN DOE LLC OR CORPORATION #2, JOHN DOE LLC OR CORPORATION #3, JOHN DOE LLC OR CORPORATION #4

APPEAL OF: JIGNESH PANDYA : : : : : : : : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 2252 EDA 2022

Appeal from the Order Entered June 29, 2022 In the Court of Common Pleas of Lehigh County Civil Division at No(s): 2020

- C

- 01336

BEFORE: PANELLA, P.J., DUBOW, J., and SULLIVAN, J. MEMORANDUM BY DUBOW, J.: FILED OCTOBER 2, 2023 Appellant , Jignesh Pandya , appeals from the order entered by the Lehigh Court of Common Pleas on June 29, 2022, denying Appellant’s Petition to Open and/or Strike Default Judgment. After careful review, we affirm the order. In June 2020, Appellee , William Edwards, filed a Writ of Summons and

a Complaint naming numerous defendants , including Appellant , in regard toJ

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an alleged assault of Appellee by an employee of the Checkers Drive

- in
Restaurant in Allentown

. 1 Appellee filed claims against Appellant sounding i n , inter alia , negligent supervision and vicarious liability. Appellee’s initial attempts to serve Appellant and the Pandya Defendants we re unsuccessful.
In September and October 2020, Appellee filed Amended and Second Amended Com plaints in response to preliminary objections filed by Checkers

. In December 2020, Appellee filed a P raecipe to R eissue the Writ of Summons

. Relevant to the instant appeal, o n December 21, 2020, Appellee filed an Acceptance of Service, signed on that date by “Krupa Patel ” stating that “ I hereby accept service of the Reissued Writ of Summons on behalf of the defendants named above and certify th at I am authorized to do so .” 2 Acceptance of Service, 12/21/20. The “defendants named above” included Appellant and the other Pandya Defendants

. Appellee additionally filed an Affidavit of Service stating that he mailed the Second Amended Complaint to A ppellant and the other defendants on December 31, 2020 , to which Appellant did not res pond. On February 4 , 2021, Appellee filed an A ffidavit of S ervice , in dicating that he mailed ten

- day notices

_________________ __________ ______ ____ _______ 1 Appellee named various individuals and entities as defendants, including Checkers Drive

- In Restaurants, Inc. (“Checkers”) as well as Appellant and the following entities connected to Appellant: Sri Gunina, LLC; Pandya Restaurants, LLC; Pandya Real Estate Holdings, LLC; Pandya Management, LLC; and The Rohan Group, LLC (collectively, “Pandya Defendants”). Only Appellant filed the current appeal.

2 The court later found that Ms. Patel served as controller for Appellant and the Pandya Defendants for fiftee n years. Tr. Ct. Op., 6/29/22, at 11.J

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of intent to take default judgment pursuant to Pa.R.Civ.P. 237. 1 (“Ten

- Day Notices”) to Appellant and all defendants other than Checkers on January 21, 2021. The court entered default judgment against Appellant and the other defendants , except for Checkers, on February 4, 2021 , with the amount to be determined later. On May 6, 2021, Appellant and the other Pandya Defendants filed a Petition to Open and/or Strike Default Judgment s , generally claiming that he had not received proper service because Ms. Patel did not ha ve authority to accept service for Appellant and the Pandya Defendants

. 3
On March 9, 2022 , the court held argument on the Petition to Strike and a hearing on the Petition to Open , during which Appellant, Ms. Patel , and Lehigh County Constable Dennis C. Hube r , who obtained Ms. Patel’s signature on the Acceptance of Service, testified. On June 29, 2022, f ollowing post

hearing briefing, the trial court denied Appellant ’ s Petition to Open and/or Strike Default Judgment , finding that Appellant had received service based
upon the Acceptance of Service form signed by Ms. Patel

. On July 29, 2022 , Appellant filed a Notice of Appeal. After Appellant filed his Pa.R.A.P. 1925(b) Statement of Matters Complained of on Appeal, th e trial court issued a statement pursuant to Rule 1925(a), referencing the reasoning included in its June 29, 2022 Opinion.

_________________ __________ ______ ____ _______ 3 Appellant additionally asserted technical challenges claiming that the Acceptance of Service form failed to comply with Pa.R.Civ.P. 402(b ). The trial court rejected the claims, which A ppellant does not raise on app eal.J

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Before this Court, Appellant challenges the trial court ’s denial of the
Petition to Strike and/or Open Default Judgment. While phra sed as eleven
que ries , we find that Appellant raises two overarching questions on appeal :
1. Whether the trial court erred or abused its discretion by denying the Petition to Open the Default Judgment after finding that Appellant received service of the W rit of S ummons and the Second A mended Complaint based upon the A cceptance of S ervice signed by M s. Patel ? 2. Whether the trial court erred as a matter of law by denying the P etition to S trike the D efault J udgment because the W rit of S ummons failed to comp ly with Pa.R.Civ.P . 402(b) and Appellee did not file a return of service pursuant to P a .R.Civ.P . 405? 4 A. Appellant first challenges the trial court’s denial of his Petition to Open Default Judgment. “ A petition to open a default judgment is an appeal t o the equitable powers of the court

. ” Smith v. Morrell Beer Distributors, Inc. , 29 A.3d 23, 25 (Pa. Super. 2011) (citation omitted)

. Thus, the decision to grant or deny the petition “is within the sound discretion of the trial court, and [appellate courts] will not overturn that decision absent a manifest abuse of discretion or error of law.” Id. (citation omitted). It is well

- established t hat

_________________ __________ ______ ____ _______ 4 Appellant’s eleven questions span seven pages of his brief, while his argument is divided in only six parts. Appellant’s Br. at viii

- xiv. His brief, therefore, violates Pennsylvania’s Rules of Appellate Procedure, which mandate that appellants “st ate concisely the issues to be resolved,” and require that “the argument shall be divided into as many parts as there are questions to be argued [.]” Pa.R.A.P. 2116 , 2119. Moreover, Appellant fails to include a copy of his Pa.R.A.P. 1925(b) S tatement of E rrors C omplained of on A ppeal in his brief in violation of Pa.R.A.P. 2111. While the violations do not prevent our review of the merits, we reframe and condense the issues for ease of discussion.J

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“[i]ssues of credibility and conflicts in evidence are for the trial court to resolve; this Court is not permitted to reexamine the weight and credibility determinations or substitute our judgment for that of the factfinder.” Ruthrauff, Inc. v. Ravin, Inc. , 914 A.2d 880, 888 ( Pa. Super. 2006) (citation omitted)

. A court may grant a p etition to o pen d efault j udgment only if the moving party demonstrates that it “ (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 meritorious defense to the allegations contained in the complaint

. ” Digital Commc'ns Warehouse, Inc. v. Allen Invs., LLC , 223 A.3d 278, 285 (Pa. Super. 2019) (ci tation omitted). When the moving party challenges the validity of service, as in the
instant case, the court must consider that issue first , because without proper service the court has neither jurisdiction over the defendant no r the aut hority to enter j udgment against the defendant

. Cintas Corp. v. Lee's Cleaning Servs., Inc . , 700 A.2d 915, 91 9 (Pa. 1997). “In making this determination, a court can consider facts not before it at the time the judgment was entered.” Id. (citation omitted). The Rules of Civil Procedure set forth procedures for serving original
process but also provides that “[i]n lieu of service under this rule, the defendant or his authorized agent may accept service of original process by filing a separate document which shall be substantially” in the form set forth in Rule 402(b). Pa.R.Civ.P. 402(b). While Rule 405 generally requires personsJ

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serving process to file a Return of Service , Rule 405(f) instructs that “[a] return of service shall not be required when the defendant accepts service of original process.” Pa.R.Civ.P. 405(f). Additionally, Rule 440 permits service of “legal papers other than original process” by “mailing a copy to

. . . the place of business of the party” or if necessary “to the last known address of
t he party to be served.” Pa.R.Civ.P. 440 (a) (2). Appellant argues that the trial court erred or abused its discretion in denying his Petition to Open

. Appellant’s Br. at 8

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. He asserts that he satisfied the three requirement s for a petition to open, contending that (1) he filed the Petition to Open promptly on May 6, 2021, after becoming aware of the entry of default judgment in April 2021 ; (2) the delay in filing a respons ive pleading was reasonable as it resulted from Appel lee’s failure to

serve Appellant properly with either the Writ of Summons or the Second Amended Complaint and because he never received the Ten

- Day Notice ; and (3) he presented a meritorious defense to Appellee’s underlying claim s . 5 Appellant’s arguments on the first two prongs hinge upon his c ontention that the Acceptance of Service signed by Ms. Patel wa s invalid and that he did not receive proper service of the Writ of Service for purposes of Rule 402(b)

. Thus, Appellant argues th at Rule 440 did not authorize Appellee to serve the Second Amended Complaint on Appellant by mail because Appellee had not first served Appellant with original process under Rule 402

. Appellant’s Br. at

_________________ __________ ______ ____ _______ 5 Appellee did not contest, for purposes of the Petition, t hat Appellant presented a meritorious defense

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8

- 12. In support for these assertions , Appellant re lies upon a self

- serving reading of the record , claiming that Ms. Patel was not authorized to accept service and/or that she did not actually sign the document. Appellant’s Br. at 8. Appellant , however, does not confront the trial court’s credibility determinations

. The court found that Constable Huber credibly testified regarding how he obtain ed Ms. Patel’s signature on the Acceptance of Service form. Tr. Ct. Op. at 9

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. In contrast, the court described Appellant’s
t estimony as “ disingenuous [ , ]” noting that Appellant “was unable to say how or when he or his lawyers first received notice of the lawsuit or how they knew to contact outside counsel to respond.” Tr. Ct. Op. at 1 0

- 11 . The court also found Ms. Patel’s test imony “ unconvincing [,] ” noting that she “had a strong
motivation to deny signing the Acceptance of Service.” Id. at 11. Moreover, the court rejected Appellant’s claim that Appellee had not served him by mail with the Second Amended Complaint and Ten

- Day Notice, finding it to be “simply not true[,]” in light of the Affidavits of Service filed by Appellee utilizing Appellant’s correct address

. Id. at 13. The trial court opined that Appellant’s failure to respond was not due to lack of receipt of the documents but rather “a tactical decision not to respond.” Id. at 14. After careful review and with deference to the trial court’s credibility determination s, we conclude that the record fully supports the court’s findings that Appellee served Appellant with the Reissued Writ o f Summons , the Second Amended Complaint, and the Ten

- Day Notice

. These factual findingsJ

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undermine Appellant’s Petition to Open becaus e he cannot demonstrate a reasonable excuse for his failure to file r esponsive pleadings , as is necessary to open a default judgment. Accordingly, we affirm the trial court’s denial of Appellant’s Petition to Open Default Judgment

. B. Appellant next chall enges the denial of his Petition to Strike. “A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record [and] may be granted only for a fatal defect or irregularity appearing on th e face of the record .” Digital Commc'ns Warehouse, Inc , 223 A.3d at 284 (citation omitted). “ A fatal defect on the face of the record denies the prothonotary the authority to enter ju dgment. ” Id. at 285

. When considering whether to grant a petition to strike judgment ,

“ a court may only look at what was in the record when the judgment was entered. ” Cintas Corp. , 700 A.2d at 917

. As a petition to strike presents a question of law, “o ur standard of review is de novo and our scope of review is plenary

. ” Digital Commc'ns Warehouse, Inc . , 223 A.3d at 284. Appellant does not reassert the technical challenges to the Acceptance of Service which he raised as fatal defects before the trial court . He instead essentially reframes the arguments set forth above in support of his Petition to Open, asserting the invalidity of the Acceptance of Service based upon the testimony of Appellant and Ms. Patel

. Appellant’s Br. at 13

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. He conten ds that the trial court did not have personal jurisdiction over him because Appellee failed to properly serve him with original process pursuant to RuleJ

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402 or file a return of service as required by Rule 405. He claims “[a] default judgment entered witho ut the [c] ourt having jurisdiction over a defendant is an apparent defect on the face of the record .” Appellant’s Br. at 14. Appellant does not present a defect on the face of the record as required for a petition to strike, but rather merely reasserts his own factual narrative, which the trial court rejected

. As noted , the court conclud ed that Ms. Patel accepted original servi ce on Appellant’s behalf by signing a form that substantially complied with Rule 402(b) . The valid Acceptance of Service undermines Appellant ’ s arguments that Appellee failed to provide original service under Rule 402 or file a return of service under Rul e 405 , as these requirements are inapplicable in cases involving acceptance of service under Rule 402(b)

. We , therefore, agree with the trial court that Appellant failed to show a defect on the record to support his Petition to Strike. Accordingly, w e conclude that the trial court did not abuse its disc retion or commit an error of law in denying Appellant’s Petition to Open and/or Strike Default Judgment. Order a ffirmed.



### Date: 10/2/2023