J-S11002-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

LIBERTY BELL INVESTMENTS, LLC

v.

AVA-G PROPERTIES, LLC 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2207 EDA 2022

Appeal from the Order Entered July 25, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 210202594

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED JUNE 07, 2023

Appellant, AVA-G Properties, LLC (“AVA-G”), appeals from the order 

entered July 25, 2022, denying its petition to strike default judgment. We 

affirm. 

The procedural and factual history of this case is as follows. On February 

26, 2021, Appellee, Liberty Bell Investments, LLC (“Liberty Bell”), initiated the 

present matter by filing a praecipe for writ of summons. On March 22, 2021, 

Liberty Bell personally served a copy of the writ of summons on AVA-G through 

its registered agent Edward Johnson, Esquire (“Attorney Johnson”). Trial 

Court Opinion, 11/23/22, at 3. “In a letter dated March 24, 2021, [however, 

Attorney] Johnson [informed counsel for Liberty Bell] that his office ‘ha[d] not 

represented AVA-G [] in quite some time and [that he] ha[d] no right to accept 

any documents on its behalf.’” Id. As such, on April 20, 2021, Liberty Bell 

served another copy of the writ of summons on Antoine Gardiner, the sole 
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member of AVA-G, by personally serving a “tenant who refused to provide his 

name” at 5713 Wyndale Avenue, Philadelphia, Pennsylvania. Id. at 2-3. 

Then, on May 11, 2021, Liberty Bell served its complaint, setting forth claims 

of breach of contract. Id. “The [c]ertificate of [s]ervice attached to the 

[c]omplaint indicate[d] that service was made upon AVA-G [via] first class 

mail at (i) 5713 Wyndale Avenue[, Philadelphia, Pennsylvania,] and (ii) [Post 

Office] Box 447[, Ardmore, Pennsylvania].”

1

 Id. at 3. Thereafter, “AVA-G did 

not file a responsive pleading.” Id. Thus, after serving a ten-day notice of 

intent to enter default judgment pursuant to Pa.R.Civ.P. 237.1, Liberty Bell 

requested, and obtained, a default judgment against AVA-G on November 16, 

2021. Id.

On June 3, 2022, through counsel, AVA-G filed a petition to strike the 

default judgment. In the petition, AVA-G averred that it was a “New Jersey 

corporation,” Attorney Johnson was its registered agent, and its registered 

office was in Hackensack, New Jersey. AVA-G’s Petition to Strike the Default 

Judgment, 6/3/22, at ¶ 3. AVA-G further averred that Liberty Bell initiated 

the instant action by “serving the summons on March 22, 2021, by personal 

service [to] its registered agent[, Attorney] Johnson,” at AVA-G’s registered 

office. Id. at ¶ 4. Nonetheless, AVA-G claimed that Liberty Bell failed to 

properly serve its complaint on AVA-G. Id. at ¶¶ 15-23. Specifically, AVA-G

alleged that, instead of mailing the complaint to the Wyndale Avenue address 

____________________________________________

1 As we shall explain below, AVA-G, in its operating agreement, identified the 

postal box in Ardmore, Pennsylvania as its principal place of business.
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or the postal box in Ardmore, Pennsylvania, Liberty Bell should have served 

the complaint on AVA-G’s agent, Attorney Johnson, “whose address was, as 

[Liberty Bell] well knew from the service of the [w]rit [of summons in], 

Hackensack, N[ew Jersey], or [upon AVA-G at its’] business address, which 

was [in] Teaneck, N[ew Jersey.] Id. at ¶ 21. Accordingly, AVA-G asserted 

that, because “[Liberty Bell’s c]omplaint was never served” on AVA-G, a fatal 

defect existed, requiring the trial court to grant its petition to strike the default 

judgment. Id. at ¶ 23. 

On July 25, 2022, the trial court entered an order denying AVA-G’s 

petition to strike default judgment. See Trial Court Order, 7/25/22, at 1. In 

its subsequent 1925(a) opinion, the trial court explained its’ reasons for 

denying AVA-G’s petition to strike. Initially, the trial court found that Liberty 

Bell properly served the writ of summons, the original process in this matter, 

by personally serving Attorney Johnson, AVA-G’s registered agent. Trial Court 

Opinion, 11/23/22, at 7; see Pa.R.Civ.P. 424(3). Accordingly, the trial court 

considered Liberty Bell’s service of the complaint under Pa.R.Civ.P. 440. Trial 

Court Opinion, 11/23/22, at 6 (explaining that “service of the subsequent 

complaint when suit has been initiated by writ of summons is governed by 

Rule 440”). Ultimately, the trial court held that Liberty Bell’s service of the 

complaint, as secondary service, was properly accomplished when Liberty Bell 

mailed a copy of the complaint to the postal box in Ardmore, Pennsylvania, 

which was listed in AVA-G’s operating agreement as a valid mailing address

for AVA-G’s business operations. Trial Court Opinion, 11/23/22, at 6-7; see 
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also Pa.R.Civ.P.440 (a)(2)(ii) (explaining that service is proper when no 

attorney has entered his or her appearance for a party by “leaving a copy at 

or mailing a copy to the last known address of the party to be served”). 

AVA-G filed a timely notice of appeal on August 24, 2022. On appeal, 

AVA-G raises the following issue: 

Did the trial court commit an error of law in denying [AVA-G’s] 

petition to strike the default judgment where on the face of 

[the] record[,] the writ of summons was never served on AVA-G 

and[,] therefore[,] the trial court never obtained personal 

jurisdiction over [AVA-G] and did not have power to enter a 

judgment against it? 

AVA-G’s Brief at 2 (superfluous capitalization omitted). 

We review a trial court's ruling on a petition to strike or open a confessed 

judgment for an abuse of discretion or error of law. See, e.g., Ferrick v. 

Bianchini, 69 A.3d 642, 647 (Pa. Super. 2013). “[T]he court abuses its 

discretion if, in resolving the issue for decision, it misapplies the law or 

exercises its discretion in a manner lacking reason.” Neducsin v. Caplan, 

121 A.3d 498, 506 (Pa. Super. 2015).

As a preliminary matter, we find that the trial court correctly determined 

that AVA-G was not entitled to relief because, based upon the record before 

the trial court, no facial defect existed. Indeed, pursuant to the affidavit of 

service filed by Liberty Bell, on March 22, 2021, Liberty Bell personally served 

the writ of summons on Attorney Johnson, AVA-G’s registered agent. Affidavit 

of Service, 4/2/21, at 1. Shortly thereafter, Attorney Johnson informed 

Liberty Bell that he was no longer affiliated with AVA-G; nevertheless, more 
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than a year later, AVA-G, in its petition to strike default judgment, averred 

that Attorney Johnson remained, in fact, its registered agent. See AVA-G’s 

Petition to Strike Default Judgment, 6/3/22, ¶ 4 (claiming that Liberty Bell 

initiated the instant action by “serving the summons on March 22, 2021, by 

personal service [to AVA-G’s] registered agent. . . [Attorney] Johnson”). 

Accordingly, based upon AVA-G’s own filing, Liberty Bell properly served 

original process, i.e., the writ of summons, upon AVA-G. See Pa.R.Civ.P. 

424(3) (explaining that “[s]ervice of original process upon a corporation or a 

similar entity may be made by handing a copy to . . . an agent authorized by 

the corporation or similar entity in writing to receive service of process for it”). 

Because Liberty Bell properly initiated this matter through personal service of 

the writ of summons upon Attorney Johnson, AVA-G’s registered agent, the 

service of the complaint in this action was governed by Pa.R.Civ.P. 440 

(outlining the rules for service of legal papers other than original process). 

Because Liberty Bell properly initiated this matter through the personal service 

of the writ of summons upon Attorney Johnson AVA-G’s registered agent, 

Pa.R.Civ.P. 440(a)(2)(ii) permitted Liberty Bell to serve the complaint “by 

leaving a copy at or mailing a copy to [AVA-G’s] last known address.” Id. 

That is exactly what Liberty Bell did. In particular, Liberty Bell mailed, via first 

class mail, a copy of the complaint to the postal box in Ardmore, Pennsylvania, 

which was identified in AVA-G’s operating agreement as its primary business 

address. See Liberty Bell’s Memorandum of Law in Opposition to [AVA-G’s] 

Motion to Strike and/or Vacate the Default Judgment, 6/23/22, at Exhibit D. 
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Accordingly, based upon the record before it, the trial court properly denied 

AVA-G’s petition to strike default judgment. 

On appeal, however, AVA-G changes track and now argues that, at the 

time Liberty Bell served the writ of summons, Attorney Johnson was not 

AVA-G’s registered agent. See AVA-G’s Brief at 14-19. Undoubtedly, this 

wholly contradicts AVA-G’s averments in its petition to strike default 

judgment. See AVA-G’s Petition to Strike the Default Judgment, 6/3/22, at 

¶¶ 4 and 21 (claiming that Attorney Johnson was AVA-G’s registered agent 

and Liberty Bell failed to abide by the rules of civil procedure when it failed to 

serve its complaint upon him). It is apparent, therefore, that AVA-G, for the 

first time on appeal, sets forth factual allegations completely contrary to those 

presented before the trial court. This is impermissible under our appellate 

rules. As such, we conclude AVA-G failed to preserve for appellate review the 

claims based upon its newly-introduced facts. See Pa.R.A.P. 302(a) (“Issues 

not raised in the trial court are waived and cannot be raised for the first time 

on appeal.”). 

Moreover, further review of the record yields additional grounds upon 

which to find that AVA-G waived its appellate claims. Indeed, we note that, 

regardless, we cannot consider the issue AVA-G currently sets forth on appeal 

because it is not properly preserved. It is well-settled that, “[w]henever a 

trial court orders an appellant to file a concise statement of [errors]

complained of on appeal pursuant to Rule 1925(b), the appellant must comply 

in a timely manner.” Feingold v. Hendrzak, 15 A.3d 937, 940 (Pa. Super.
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2011) (emphasis, citations and quotations omitted). Thus, when ordered, an 

appellant must file a timely concise statement, raising all issues it intends to 

subsequently raise on appeal. The “failure to comply with the minimal 

requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues 

raised.” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 

A.3d 222, 224 (Pa. Super. 2014) (en banc); see also Commonwealth v. 

Castillo, 888 A.2d 775, 780 (Pa. 2005) (explaining that an untimely concise 

statement waives all claims on appeal); Commonwealth v. Lord, 719 A.2d 

306, 309 (Pa. 1998) (“[F]rom this date forward . . . [a]ppellants must comply 

whenever the trial court orders them to file a [s]tatement of [errors] 

[c]omplained of on [a]ppeal pursuant to Rule 1925. Any issues not raised in 

a 1925(b) statement will be deemed waived.”).

Herein, the record reflects that, after AVA-G filed a timely appeal, on 

August 31, 2022, the trial court ordered it to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days of the 

docketing of the order, i.e., on or before September 21, 2022. Trial Court 

Order, 8/31/22, at 1. The order also informed AVA-G that “[a]ny issues not 

properly included in the [s]tatement timely filed and served pursuant to 

Pa.R.A[.]P. 1925(b) shall be deemed waived.” Id. at 2. Despite the trial 

court’s order, AVA-G filed its Rule 1925(b) statement on September 23, 2022. 

AVA-G’s 1925(b) statement, therefore, was manifestly untimely, rendering its 

claim waived on appeal. See Castillo, supra. 
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In addition, in AVA-G’s Rule 1925(b) statement, AVA-G set forth the 

following claims of error:

1. The trial court committed an error of law/abuse of discretion 

in denying [AVA-G’s] petition to strike the default judgment 

based on a lack of service of the complaint. 

2. There was a defect on the face of the record establishing that 

the complaint was not served on [AVA-G], namely: 

a. The summons was served on [AVA-G’s] agent in New

Jersey; 

b. The complaint was not served on [AVA-G’s] agent in 

New Jersey, but instead was served at 5713 Wyndale 

Avenue; 

c. As the [Office of Property Assessment] records 

attached to the petition to strike established, the place 

where the complaint was served – 5713 Wyndale 

Avenue, is not owned by [AVA-G] . . . but instead is a 

rental properly owned by Antoine Gardiner. 

d. The place where the complaint was served is not a 

property associated with [AVA-G] and has no 

connection with [AVA-G]; 

e. Accordingly, on the face of the record, [AVA-G] was 

not served the complaint at any address associated 

with [AVA-G]; 

f. Even where a writ of summons is properly served, the 

failure to properly serve the complaint is a fatal 

defect that requires the striking of a default judgment. 

Clymire v[.] McKivitz, [504 A.2d 937, 939 (Pa. 

Super. 1986)];

g. As the [C]ourt reasoned, “[the service of the writ of 

summons] imposes no duty whatever upon the 

defendant until the plaintiff files and serves his 

complaint, to which the defendant will be required to 

plead[.]” Clymire, [504 A.2d at 939] (emphasis in 

original).
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h. In this case, the face of the record established that the 

complaint was never served on [AVA-G] and 

therefore[,] the trial court committed an error of law 

in denying [AVA-G’s] petition to strike default 

judgment[.] 

AVA-G’s Rule 1925(b) Concise Statement, 9/23/22, at *1-*2 (unpaginated)

(emphasis added). Although AVA-G challenged the service of Liberty Bell’s 

complaint in its Rule 1925(b) statement, in its appellate brief, AVA-G presents 

the following issue for our review: 

Did the trial court commit an error of law in denying [AVA-G’s] 

petition to strike the default judgment where on the face of 

[the] record[,] the writ of summons was never served on 

AVA-G and[,] therefore[,] the trial court never obtained 

personal jurisdiction over [AVA-G] and did not have power to 

enter a judgment against it? 

Appellant’s Brief at 2-3 (emphasis added) (superfluous capitalization omitted). 

Hence, AVA-G completely abandons its earlier claim alleging Liberty Bell failed 

to properly serve its complaint and, on appeal, now challenges Liberty Bell’s 

alleged failure to properly serve its’ writ of summons. See id. at 13-26. 

Because AVA-G failed to raise the latter issue in its 1925(b) concise statement, 

it is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the 

Statement and/or not raised in accordance with the provisions of this 

paragraph (b)(4) are waived.”); see also Lord, supra. 

Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/7/2023