J-A02024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

LAWRENCE L. MCINTIRE, II AND 

BETH ANNE MCINTIRE

v.

ROBERT ALBRO D/B/A C&A AUTO 

SALES AND MICHAEL D. BROOKS 

D/B/A BROOKS AUTO REPAIR

APPEAL OF: ROBERT ALBRO D/B/A 

C&A AUTO SALES

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1151 MDA 2023

Appeal from the Order Entered July 12, 2023

In the Court of Common Pleas of Centre County

Civil Division at No(s): 2021-1833

BEFORE: NICHOLS, J., KING, J., and SULLIVAN, J.

MEMORANDUM BY KING, J.: FILED: MAY 6, 2024

Appellant, Robert Albro d/b/a C&A Auto Sales, appeals from the order 

entered in the Centre County Court of Common Pleas, which denied his 

petition to open default judgments entered in favor of Appellees, Lawrence L. 

McIntire, II and Beth Anne McIntire (“the McIntires”) and Michael Brooks d/b/a 

Brooks Auto Repair. We affirm. 

The relevant facts and procedural history of this appeal are as follows:

This action arises from a transaction in which [the McIntires] 

purchased a used 2008 Jeep Wrangler (“vehicle”) from C&A 

Auto Sales on or about April 26, 2021. A discrepancy 

existed between the vehicle’s odometer reading recorded at 

the time of sale and the reading recorded at the time of 
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inspection by Mr. Brooks.[1] Following the purchase, the 

vehicle experienced numerous nonconformities and defects 

which [the McIntires] alleged substantially affected the use, 

value, and safety of the vehicle. Among these 

nonconformities and defects was complete failure of the 

front differential. Following an incident wherein [the 

McIntires] had to pull off of the interstate and have the

vehicle towed, a third-party mechanic discovered metal 

shavings in the front differential, necessitating its 

replacement. The vehicle’s brakes were also severely 

rusted. The third-party mechanic thus informed [the 

McIntires] the vehicle should not have passed state 

inspection. The vehicle was rendered inoperable, and [the 

McIntires] alleged, inter alia, [Appellant] and Mr. Brooks

deliberately concealed the nature of the vehicle’s 

nonconformities and defects, ultimately resulting in financial 

damage to [the McIntires]. 

[The McIntires] filed a complaint on August 9, 2021,

sounding in violation of the Pennsylvania Unfair Trade 

Practices and Consumer Protection Law (“UTPCPL”), 

violation of the Automotive Industry Trade Practices 

Regulations (“Auto Act”) and UTPCPL, and fraud as to both 

[Appellant] and Mr. Brooks as well as breach of contract and 

unjust enrichment as to [Appellant]. This complaint was 

served on [Appellant] at the Centre County Sheriff’s Office 

on August 26, 2021. On November 1, 2021, Mr. Brooks filed 

an answer, new matter and crossclaim against [Appellant]. 

[The McIntires] filed a response to Mr. Brooks’ new matter 

on November 24, 2021. Mr. Brooks filed a sole preliminary 

objection to [the McIntires’] response to his new matter on

December 3, 2021, for lack of verification.... [The McIntires]

thereafter filed a praecipe to substitute verification to their 

response, which included a proper verification, on January 

5, 2022. A seemingly identical praecipe was filed on January 

7, 2022. On February 23, 2022, [the McIntires] filed a 

motion to compel [Appellant’s] responses to [the McIntires’] 

interrogatories and requests for production. [The] court 

____________________________________________

1 The complaint alleged that Mr. Brooks inspected the vehicle in December 

2020, at which time the vehicle’s odometer read 132,911 miles. (See

Complaint, filed 8/9/21, at 4). At the time of sale, however, Appellant 

“recorded the vehicle’s odometer as 132,693 miles.” (Id.) 
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entered an order compelling [Appellant] to respond to said 

interrogatories and requests for production on February 28, 

2022. 

On March 4, 2022, default judgment was entered against 

[Appellant] in favor of Mr. Brooks for want of an answer to 

Mr. Brooks’ crossclaim. On April 4, 2022, [the McIntires] 

filed a motion for sanctions against [Appellant] for failure to 

comply with [the] court’s February 28, 2022, order 

compelling him to respond to [the McIntires’] discovery 

requests. Pursuant to that motion, [the] court entered an 

order imposing sanctions in the amount of $1,000 on June 

8, 2022. On September 19, 2022, default judgment was 

entered against [Appellant] in favor of [the McIntires] for

want of an answer to [the McIntires’] complaint. A writ of 

execution pursuant to this judgment was entered on 

November 3, 2022. On December 2, 2022, Garnishee 

Citizens Bank (“Garnishee”) submitted answers to 

interrogatories served on them by [the McIntires] incident 

to the writ of execution and then amended answers, 

reflecting a $1,824.77 balance in [Appellant’s] checking

account, on January 9, 2023. On February 3, 2023, 

judgment was entered against Garnishee in favor of [the 

McIntires] in that amount, $1,824.77. 

[Appellant] filed the instant petition to open default 

judgments, along with a proposed answer and new matter, 

on March 6, 2023. Therein, he [sought] to have both default 

judgments entered against him opened. [Appellant] 

assert[ed] he had no knowledge of this action against him 

until his landlord provided him with notice of the default 

judgment in favor of Mr. Brooks, which was found in the 

landlord’s mailbox, in late October of 2022. [Appellant] 

represent[ed] he never received the complaint initiating this 

matter and, further, never received notice of either default 

judgment. Upon learning of the entry of default judgment 

against him, [Appellant] consulted with several attorneys 

before retaining the services of his current counsel on 

January 9, 2023, and allege[d] the delay in responding since 

October 2022 was incident to his difficulty in finding counsel. 

[Appellant] also argue[d] he has a meritorious defense. ... 

A hearing was held on June 12, 2023. 

(Trial Court Opinion, filed 7/12/23, at 2-4) (some capitalization omitted). 
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By order and opinion entered July 12, 2023, the court denied Appellant’s 

petition to open the default judgments. In its opinion, the court emphasized 

that Appellant failed to file his petition to open the default judgments in a 

prompt manner. Appellant timely filed a notice of appeal on August 11, 2023. 

On August 15, 2023, the court ordered Appellant to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. Appellant timely filed 

his Rule 1925(b) statement on August 28, 2023. 

Appellant now raises two issues for our review. 

Did the trial court commit an abuse of discretion when it 

held that Appellant had not presented sufficient excuse for 

his delay in responding to the complaint despite his 

testimony that he did not learn of the lawsuit until after the 

default judgments were entered? 

Did the trial court commit an abuse of discretion when it 

held that Appellant’s petition to open default judgment was 

untimely where Appellant testified he had difficult[y]

securing legal counsel? 

(Appellant’s Brief at 4). 

“A petition to open a default judgment is an appeal to the equitable 

powers of the court.” Smith v. Morrell Beer Distributors, Inc., 29 A.3d 

23, 25 (Pa.Super. 2011) (quoting Dumoff v. Spencer, 754 A.2d 1280, 1282 

(Pa.Super. 2000)). “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. 

In his first issue, Appellant challenges the propriety of the service of the 
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McIntires’ original complaint. Appellant acknowledges that the record includes 

the return of service indicating that a sheriff handed him the complaint at the 

Centre County Sheriff’s Office on August 26, 2021. Appellant insists, however, 

that he never went to the sheriff’s office. Instead, Appellant emphasizes his 

testimony from the evidentiary hearing, where he claimed that his father, also 

named Robert Albro, went to the sheriff’s office, picked up the complaint, and 

did not tell Appellant about the filing. Appellant complains that the trial court 

“did not address” this testimony and simply relied on the return of service to 

conclude that service was proper. (Appellant’s Brief at 14). 

Relying on Hollinger v. Hollinger, 416 Pa. 473, 206 A.2d 1 (1965) and 

Anzalone v. Vormack, 718 A.2d 1246 (Pa.Super. 1998), Appellant argues 

that “the conclusiveness of a return does not extend to facts of which the 

Sheriff does not have personal knowledge. ... The question of who was 

served, the identity of the person, is not in the Sheriff’s personal knowledge.” 

(Appellant’s Brief at 13) (internal quotation marks omitted). As such, 

Appellant contends his testimony from the hearing was sufficient to strip the 

return of service of any conclusive effect. Because Appellees did not offer any 

evidence to contradict Appellant’s testimony, Appellant opines that service of 

the complaint was improper and the court lacked personal jurisdiction over 

him. On this basis alone, Appellant concludes that the court should have 

granted his petition to open the default judgments. We disagree. 

“[W]here the party seeking to open a judgment asserts that service was 
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improper, a court must address this issue first before considering any other 

factors.” Digital Communications Warehouse, Inc. v. Allen 

Investments, LLC, 223 A.3d 278, 288 (Pa.Super. 2019) (quoting Cintas 

Corp. v. Lee’s Cleaning Services, Inc., 549 Pa. 84, 94, 700 A.2d 915, 919 

(1997)). “The absence of personal jurisdiction will require the opening of a 

judgment.” Sharpe v. McQuiller, 206 A.3d 1179, 1185 (Pa.Super. 2019). 

“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., supra at 91, 700 A.2d at 917. 

Without valid service, a court lacks personal jurisdiction of 

a defendant and is powerless to enter judgment against him 

or her. Thus, improper service is not merely a procedural 

defect that can be ignored when a defendant subsequently 

learns of the action against him or her. However, the 

absence of or a defect in a return of service does not 

necessarily divest a court of jurisdiction of a defendant who 

was properly served. [T]he fact of service is the important 

thing in determining jurisdiction and ... proof of service may 

be defective or even lacking, but if the fact of service is 

established jurisdiction cannot be questioned. 

Id. at 91, 700 A.2d at 917-18 (internal citations and quotations omitted). 

Pennsylvania Rule of Civil Procedure 402 provides that original process 

may be served “by handing a copy to the defendant[.]” Pa.R.C.P. 402(a)(1). 

Further, Pennsylvania Rule of Civil Procedure 405 provides:

Rule 405. Return of Service

(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 
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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. 

Pa.R.C.P. 405(a), (b). 

“A claim of false return of service is not grounds for setting aside a 

judgment because it is long established that absent a showing of fraud, a 

[s]heriff’s return, true and regular on its face, is conclusive as to service of 

individuals present in Pennsylvania.” MacClain v. Penn Fruit, Inc., 361 A.2d 

403, 404 (Pa.Super. 1976) (internal quotation marks omitted). “[A] sheriff’s 

return which is complete on its face is conclusive and immune from extrinsic 

attack as to facts of which the sheriff presumptively has personal knowledge.” 

American Exp. Co. v. Burgis, 476 A.2d 944, 949 (Pa.Super. 1984). 

Nevertheless, 

The rule of conclusiveness of a return of service of process 

is based upon the presumption that a sheriff, acting in the 

course of his official duties, acts with propriety and, 

therefore, when the sheriff in the course of such official 

duties makes a statement, by way of an official return, such 

statement is given conclusive effect. However, both logic 

and common sense restrict the conclusive nature of a 

sheriff’s return only to facts stated in the return of which the 

sheriff presumptively has personal knowledge, such as when 

and where the writ was served; when, in his official return, 

the sheriff states that he served a writ at a certain time and 

at a certain place, such facts are known to the sheriff 

personally and should be given conclusive effect. However, 

the immutability of a return should not extend (a) to facts 
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stated in the return of which the sheriff cannot be expected 

to have personal knowledge and which are based upon 

information obtained through hearsay or statements made 

by third persons or (b) to conclusions based upon facts 

known to the sheriff only through statements made by 

others. When a sheriff’s return states that a certain place 

is the residence or dwelling house of the defendant, such 

statement is not of a matter ordinarily within the personal 

knowledge of the sheriff but only a statement based upon 

that which he has been told by other persons, i.e., he had 

been instructed by a third person to make service at a 

certain place which he is told is the residence or dwelling 

house of the defendant. No sound reason exists for giving 

a conclusive effect to a statement in the sheriff’s return as 

to a fact or conclusion which arises not from the sheriff’s 

own personal knowledge or observation but from 

information given him by other persons. 

Hollinger, supra at 477-78, 206 A.2d at 3 (emphasis omitted). See also 

Anzalone, supra at 1249 (stating: “[W]ith regard to the status of the person 

to whom service was made being a ‘girlfriend’ named ‘Stacy Fuller’ and the 

defendant’s address being ‘15 Sunnyhill Drive, Beaver Falls, PA,’ these are 

matters which the constable presumptively had no personal knowledge but 

learned via third party disclosure. As such, the defendant was not precluded 

from attacking such representations”). 

Instantly, the record includes a sheriff’s return of service. The return 

indicates:

08/26/21 02:49 PM - Clerk Rondia M Schenck, being duly 

sworn according to law, deposes and says, the complaint in 

civil action (CICA) was served upon Robert Albro d/b/a Auto 

Sales at Centre County Sheriffs Office, 213 E High St, 

Bellefonte, PA 16823 by handing a true and attested copy 

to the defendant and made known the contents thereof. 

(Return of Service, filed 8/31/21, at 1) (some capitalization omitted). The 
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return of service was singed and notarized by Ms. Schenck. Thus, the sheriff’s 

return was complete on its face. See Pa.R.C.P. 405. 

Regarding Appellant’s attack on the accuracy of the return of service, 

the court conducted an evidentiary hearing. At that time, Appellant expressly 

denied going to the sheriff’s office and receiving a copy of the McIntires’ 

complaint on August 26, 2021. (See N.T. Hearing, 6/12/23, at 5). On crossexamination, Appellant advanced his theory that his father had received the 

complaint: 

I’m at auctions four days out of the week. So the best of 

my knowledge, my father, he signed [the certified mail slip 

confirming delivery of the McIntires’ discovery requests]. 

He already admitted he was the one who got the—the first 

one from the sheriff’s department. So I’m assuming he got 

the second one, as well, and I never received it. 

(Id. at 20). Although Appellant claimed to speak with his father “[e]very day,” 

Appellant insisted that his father “never mentioned” the pending litigation. 

(Id.) Appellant did not present any other witnesses to substantiate his 

allegations. 

Contrary to Appellant’s argument on appeal, the trial court addressed

Appellant’s testimony from the hearing. The court, however, declined to credit 

Appellant’s self-serving allegations and concluded that his “claim of 

unawareness of this action is contradicted by the sheriff’s return of service 

indicating service on one Robert Albro[.]” (Trial Court Opinion at 6). The 

court opted to credit the averments in the return of service instead of 

Appellant’s testimony, and we will not re-weigh the evidence. See Conway 
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v. Conway, 209 A.3d 367, 371 (Pa.Super. 2019) (explaining appellate court 

is bound by trial court’s appraisal of witness credibility; however, appellate 

court need not accept finding that is unsupported by evidence). Although 

Appellant correctly cites relevant authority for the proposition that the 

immutability of a return should not extend to facts of which the sheriff cannot 

be expected to have personal knowledge, Appellant ignores the fact that the 

court provided him with an opportunity to attack the reliability of the return 

at an evidentiary hearing. Compare Anzalone, supra at 1250 (Judge Orie 

Melvin dissenting) (opining that evidentiary hearing was warranted to provide 

appellant with opportunity to resolve dispute of fact concerning appellant’s 

residence on date of service of complaint). On this record, we agree with the 

court’s determination that service of the complaint was proper, and the court 

obtained jurisdiction over Appellant.

2

 See Cintas Corp., supra. Accordingly, 

Appellant is not entitled to relief on his first claim. 

In his second issue, Appellant maintains that he did not learn about the 

McIntires’ lawsuit until the end of October 2022. Appellant also claims that 

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2

In his brief, Appellant provides two sentences of argument in an attempt to 

claim that Mr. Brooks also failed to provide proper service of the crossclaim. 

(See Appellant’s Brief at 15-16). Because Appellant failed to develop this 

discrete claim with any citation to relevant authority, it is waived. See In re 

Estate of Whitley, 50 A.3d 203, 209 (Pa.Super. 2012), appeal denied, 620 

Pa. 724, 69 A.3d 603 (2013) (reiterating that, “This Court will not consider 

the merits of an argument which fails to cite relevant case or statutory 

authority”); Bombar v. West American Ins. Co., 932 A.2d 78, 93

(Pa.Super. 2007) (explaining that appellate court “will not act as counsel and 

will not develop arguments on behalf of an appellant”). 
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he did not file his petition to open the default judgments until March 2023 

“because of an inability to obtain legal counsel.” (Appellant’s Brief at 17). 

Appellant asserts that he initially contacted his sister, who is a lawyer, but she 

could not assist him because she had recently given birth. Appellant contends 

that he contacted two other lawyers, who did minimal work on his behalf,

before securing current counsel. Despite these circumstances, Appellant 

argues that “he used reasonable diligence to pursue a number of leads until 

he was able to retain a lawyer to file the petition.” (Id. at 18). Appellant 

characterizes the delay in filing the petition as “reasonable,” and the delay 

“should not be a bar to a review of the case on the merits.” (Id.) Under these 

circumstances, Appellant concludes that the trial court abused its discretion 

by denying his petition to open the default judgments. We disagree. 

“If the petition [for relief from a default judgment] is filed within ten 

days after the entry of a default judgment on the docket, the court shall open 

the judgment if one or more of the proposed preliminary objections has merit 

or the proposed answer states a meritorious defense.” Pa.R.C.P. 237.3(b)(2). 

Where a petition to open a default judgment is not filed within ten days after 

the entry of a default judgment, the movant must “(1) promptly file a petition 

to open judgment; (2) provide a meritorious defense; and (3) offer a 

legitimate excuse for the delay in filing a timely answer.” Reid v. Boohar, 

856 A.2d 156, 160 (Pa.Super. 2004). “[T]he trial court cannot open a default 

judgment based on the ‘equities’ of the case when the defendant has failed to 
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establish all three of the required criteria.” US Bank N.A. v. Mallory, 982 

A.2d 986, 995 (Pa.Super. 2009). 

With respect to the prompt filing of a petition to open, this Court “does 

not employ a bright line test[.]” Flynn v. America West Airlines, 742 A.2d 

695, 698 (Pa.Super. 1999). Courts focus on two factors: “(1) the length of 

the delay between discovery of the entry of the default judgment and filing 

the petition to open judgment, and (2) the reason for the delay.” Id. One 

month or less between the entry of the default judgment and the filing of a 

petition for relief from the judgment typically meets the requirement for a 

prompt filing. See Myers v. Wells Fargo Bank, N.A., 986 A.2d 171, 176 

(Pa.Super. 2009). See also US Bank N.A., supra (comparing cases and 

finding an 82-day delay between entry of default judgment and filing of 

petition for relief was not prompt). 

Instantly, the trial court concluded that Appellant’s “failure to appear 

throughout the twenty-two (22) months of this litigation cannot be excused.” 

(Trial Court Opinion at 6). The court emphasized that Appellant filed his 

petition to open the default judgments well beyond the one-month period after 

entry of the default judgments. See Myers, supra. On this basis alone, the 

court properly denied Appellant’s petition. Moreover, Appellant’s purported 

inability to retain counsel does excuse the delay in filing the petition to open 

the default judgments. See American Exp. Co., supra at 950 (concluding 

defendant “was dilatory in seeking to insulate his rights,” and expressly 
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disagreeing with trial court’s finding that “two month period was needed [by 

the defendant] to become aware of the entry of default ... and to allow him to 

secure adequate counsel”). Because Appellant did not promptly file his 

petition to open or provide a legitimate excuse for the delay, the court did not 

abuse its discretion in this case. See Smith, supra; Reid, supra. 

Accordingly, we affirm the order denying the petition to open the default 

judgments. 

Order affirmed. 

Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 5/6/2024