J-A34041-14

2015 PA Super 131

ALEXANDRA AND DEVIN TREXLER, 

HUSBAND AND WIFE

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

MCDONALD’S CORPORATION

Appellee No. 903 MDA 2014

Appeal from the Order Entered May 2, 2014

In the Court of Common Pleas of Schuylkill County

Civil Division at No: S-596-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

OPINION BY STABILE, J.: FILED JUNE 03, 2015

Appellants, Alexandra and Devin Trexler, appeal from the May 2, 2014 

order sustaining the preliminary objections of Appellee, McDonald’s 

Corporation. We affirm. 

The sole question before this Court is whether the trial court erred in 

finding that Appellants failed to serve process on Appellee. We will begin 

with a detailed review of the procedural history and pleadings. This litigation 

arose from Alexandra Trexler’s February 11, 2011 slip and fall accident at a 

McDonald’s restaurant located at the intersection of Route 61 and Tunnel 

Road in Pottsville, Pennsylvania (the “Pottsville McDonald’s”). Appellants 

filed a complaint on March 21, 2012 naming Appellee as a defendant and 

alleging Appellee was negligent in allowing a slippery condition to exist on 
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the floor of the Pottsville McDonald’s. Appellants served the complaint on 

the manager of the Pottsville McDonald’s. On April 25, 2012, Appellee, 

through its counsel, filed preliminary objections alleging improper service. 

Appellants filed an amended complaint on May 16, 2012. On August 17, 

2012, the trial court entered an order dismissing Appellee’s preliminary 

objections as moot in light of the amended complaint. 

On April 19, 2013, more than eleven months after the amended 

complaint was filed, Appellee once again filed preliminary objections. 

Appellee alleged its counsel never agreed to accept service of the amended 

complaint on behalf of Appellee. Preliminary Objections to Plaintiffs’ 

Amended Complaint, 4/19/13, at ¶ 6. In support of that assertion, Appellee 

attached a series of emails between Appellee’s counsel and Appellants’ 

counsel. 

The first email, sent from Appellants’ counsel to Appellee’s counsel on 

May 2, 2012, reads as follows: 

I am in receipt of your P.O.’s related to service of process. While 

I disagree with your position I would like to avoid unnecessary 

motion practice and would ask you to accept service of the 

complaint for your client. There is plenty of time under the SOL 

so if necessary I can effectuate service assuming the Court rules 

in your favor. I think it would be better if we work together and 

get discovery going. 

Id. at Exhibit B. 

Appellee’s counsel responded on May 11, 2012: 

I am not authorized to accept service. Sorry. 
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Id. 

On May 16, 2012, Appellants’ counsel responded to Appellee’s counsel: 

Thank you for the response. I will advise my client and will 

extend the same courtesies to your client during this litigation. 

Id. 

Later the same day, Appellee’s counsel wrote: 

Service of process is not an issue of professional courtesy. This 

is not the same as needing some extra time on an answer, brief, 

or discovery responses. 

McDonald’s does not let anyone accept service for them. It has 

nothing to do with you or me. 

Id. 

Appellee’s preliminary objections to the amended complaint also 

attached a May 29, 2012 email from Appellee’s counsel to Appellants’ 

counsel discussing substitution of the franchise owner as the defendant: 

I have tried to call you regarding the above. I have had 

communications with McDonalds [sic]. Please see attached 

affidavit. 

I would like to talk to you about substituting the franchise owner 

for McDonalds [sic]. This franchise has $1 million dollars [sic] in 

coverage which seem [sic] to make McDonald [sic] Corporation 

an unnecessary target. 

Thank you. 

Id. at Exhibit C. 

The email refers to the affidavit of David Bartlett (the “Bartlett 

Affidavit”), which is also a part of Exhibit C. Bartlett identifies himself as 

Appellee’s managing counsel. Bartlett Affidavit at ¶ 1. The affidavit alleges 
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Appellee does not own or operate the Pottsville McDonald’s. Id. at ¶¶ 3-4. 

Specifically, Appellee does not hire and discharge employees, file tax 

returns, pay utilities, sell products, supply products, or have any other 

connection to the day-to-day operation of the Pottsville McDonald’s. Id. at 

¶¶ 5-11. Finally, the Bartlett Affidavit alleges W. Pace Limited Partnership 

owns and operates the Pottsville McDonald’s pursuant to a franchise 

agreement. Id. at ¶ 12. 

On May 8, 2013, Appellants filed preliminary objections to Appellee’s 

preliminary objections, alleging Appellee’s preliminary objections were 

untimely. Appellants further alleged the untimely preliminary objections 

prejudiced them because the statute of limitations expired on February 11, 

2013. Appellants also alleged the email correspondence between counsel 

did not excuse Appellee’s untimely preliminary objections. Appellants 

alleged Appellee’s preliminary objections came in response to a letter 

threatening to file a default notice. 

Appellee filed a response to Appellants’ preliminary objections dated 

May 14, 2013. Appellee alleged Appellants never completed service of 

original process, and that Appellants failed to serve the amended complaint 

on Appellee’s counsel in accordance with Pa.R.C.P. 440, governing service of 
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papers other than original process.1 Appellee also alleged it filed the 

preliminary objections because Appellants allowed the statute of limitations 

to run without serving their complaint on Appellee. 

On July 3, 2013, the trial court dismissed Appellants’ preliminary 

objections, ruling Appellee’s preliminary objections were not time-barred 

because the docket failed to reflect proper service on Appellee. The trial 

court permitted Appellants to file an answer to Appellee’s preliminary 

objections, and they did so on July 18, 2013. The answer alleged counsel 

entered an appearance on behalf of Appellee by filing preliminary objections 

to the original complaint, and that they served the amended complaint on 

Appellee’s counsel of record.2 Answer to [Appellee’s] Preliminary Objections, 

7/18/13, at ¶ 6. Appellants also disputed Appellee’s assertion that it does 

not own the Pottsville McDonald’s. Appellants attached to their July 18, 

2013 filing a document from the Schuylkill County Assessment Bureau 

____________________________________________

1

 Rule 440 provides for copies of papers other than original process to be 

served on another party’s counsel by handing, mailing, or faxing them to 

counsel. Pa.R.C.P. 440. Appellants’ counsel did not use any of these 

methods, instead sending the amended complaint to Appellee’s counsel as 

an email attachment. 

2

 Where a party files a pleading for the sole purpose of challenging 

jurisdiction, the court may treat the pleading as a special appearance and 

not as consent to personal jurisdiction. Bergere v. Bergere, 527 A.2d 171, 

174 (Pa. Super. 1987). Appellants do not argue this point in their appellate 

brief.
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indicating Appellee owns the land on which the Pottsville McDonald’s stands. 

Id. at Exhibit 1. 

In response, on August 8, 2013, Appellee filed an affidavit from Wayne 

Pace (the “Pace Affidavit”). The Pace Affidavit corroborates information 

contained in the Bartlett Affidavit. Specifically, the Pace Affidavit alleges 

Wayne Pace’s partnership, known as W. Pace Limited Partnership, owns and 

operates the Pottsville McDonald’s. Id. at ¶ 2. The Pace Affidavit alleges 

the Pottsville McDonald’s is a “McDonald’s Corporation franchise” operating 

pursuant to a franchise agreement. Id. The Pace Affidavit further alleges 

Appellee was not the owner or operator of the Pottsville McDonald’s on the 

day of the accident or any time thereafter, and that Appellee does not 

conduct regular business at the Pottsville McDonald’s. Id. at ¶¶ 7-9. The 

Pace affidavit avers Appellee owns the property on which the Pottsville 

McDonald’s is located and was leasing it to W. Pace Limited Partnership as of 

the date of the alleged slip and fall. Id. at ¶ 13. 

On January 6, 2014, the trial court entered an order giving the parties 

60 days to conduct discovery, inasmuch as Appellee’s preliminary objections 

and Appellants’ answer thereto raised a question of fact.3 The parties took 

____________________________________________

3

 Pa.R.C.P. 1028 authorizes the trial court’s course of action here. The note 

to Rule 1028 explains: “Preliminary objections raising an issue under 

subdivision (a)(1), [...] cannot be determined from facts of record.” In other 

words, a dispute over proper service cannot be resolved by reference to 

facts pled in the complaint. Additional evidence is required. Rule 

(Footnote Continued Next Page)
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no action during this sixty-day period. On May 1, 2014, well after the 

expiration of the discovery period, Appellants filed a motion for enlargement 

of the discovery period. In that motion and the accompanying brief, 

Appellants offered no explanation why they needed more time or why they 

failed to meet the trial court’s original 60-day deadline. On May 2, 2014, the 

trial court entered the order on appeal without having received Appellants’ 

motion for enlargement of time. The trial court noted it did not receive the 

motion for enlargement of time until Appellants filed their May 22, 2014 

appeal from the May 2, 2014 order. The court therefore dismissed the 

motion as moot. 

Appellants frame the issues on appeal as follows: 

A. Whether [Appellee] was properly served, as it owned 

the property where it was served, which was a 

McDonald’s restaurant? 

B. Whether the trial court erred when it granted 

[Appellee’s] preliminary objections which were filed 

over 300 days late? 

Appellants’ Brief at 4. 

In reviewing an order sustaining preliminary objections, our standard 

of review is de novo and our scope of review is plenary. Morrison 

Informatics, Inc. v. Members 1st Fed. Credit Union, 97 A.3d 1233, 1237 

(Footnote Continued) _______________________

1028(c)(2) provides that where “an issue of fact is raised, the court shall 

consider evidence by depositions or otherwise.” Pa.R.C.P. 1028(c)(2). 
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(Pa. Super. 2014). We must determine whether the trial court committed 

an error of law. Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 

2012). “When a defendant challenges the court’s assertion of personal 

jurisdiction, that defendant bears the burden of supporting such objections 

to jurisdiction by presenting evidence.” De Lage Landen Fin. Servs., Inc. 

v. Urban P'ship, LLC, 903 A.2d 586, 590 (Pa. Super. 2006). “The burden 

of proof only shifts to the plaintiff after the defendant has presented 

affidavits or other evidence in support of its preliminary objections 

challenging jurisdiction.” Id. 

Appellee filed its preliminary objections pursuant to Pa.R.C.P. 

1028(a)(1). That subsection permits a preliminary objection based on 

improper service. Rule 424 governs service on corporations: 

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

(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. “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. v. Lee’s Cleaning Servs., 
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700 A.2d 915, 917 (Pa. 1997). Appellants argue that service on the 

manager of the Pottsville McDonald’s constituted service on the manager of 

a regular place of business in accord with Rule 424(2). 

Appellants rely on Goldstein v. Carillon Hotel of Miami Beach, 227 

A.2d 646 (Pa. 1967). There, the plaintiff sued the defendant hotel for a slip 

and fall that occurred while she was staying at a hotel located in Miami 

Beach, Florida. Id. at 647. The plaintiff served process on the employee of 

an office defendant maintained at a hotel located in Philadelphia. Id. Our 

Supreme Court held that service in the Philadelphia office was sufficient 

service process on the hotel, which operated as a partnership. Id. at 648-

49. The Supreme Court noted that the personnel in Philadelphia were 

employees of the Florida hotel who were authorized to issue confirmed 

reservations for stays at the Florida hotel. Id. at 648. All money and 

supplies for the Philadelphia office came from the Florida hotel. Id. As 

such, the Philadelphia office was a regular place of business of the Florida 

hotel. 

Goldstein does not support Appellants’ argument. The Philadelphia 

employee who accepted service was directly employed by the Florida hotel, 

and the Florida hotel paid for and maintained the office where the 

Philadelphia employee worked. Here, the Bartlett and Pace Affidavits clearly 

indicate Appellee was not involved in the day-to-day operations of the 

Pottsville McDonald’s. Thus, the manager who accepted service was not 
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Appellee’s employee. Unlike the situation in Goldstein, Appellee does not 

hire the employees, pay for supplies, or otherwise support the Pottsville 

McDonald’s. Nothing in Goldstein supports a conclusion that service on the 

manager of a McDonald’s franchise constitutes service on Appellee. 

Appellants also rely on Cintas. The Cintas Court considered whether 

service on a receptionist was service on a person in charge for purposes of 

Rule 424(2). Cintas, 700 A.2d at 916. In dicta,

4

the Supreme Court held 

“there must be 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.” Id. at 920. Thus, the appellant 

was unable to have the judgment against it stricken based on improper 

service. Id. 

Cintas also fails to support Appellants’ argument. Appellee does not 

dispute (or concede) that the manager on duty who was served the original 

complaint at the Pottsville McDonald’s was a person in charge for purposes 

of Rule 424(2). Ultimately, that question is irrelevant to the outcome of this 

appeal. This case does not turn on whether Appellants served a person in 

charge at the Pottsville McDonald’s. Rather, this case turns on whether the 

Appellant served a person at the Pottsville McDonald’s who was authorized 

____________________________________________

4

 The issue was not properly before the Court because the appellant filed a 

petition to strike (not open) the judgment, and the authority of the person 

who accepted service was not apparent from the face of the record. Id. at 

918-19. 
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to accept service on behalf of the Appellee under Rule 424. The trial court 

found it was not. Appellants’ reliance on Cintas is misplaced. 

Finally, Appellants cite Romeo v. Looks, 535 A.2d 1101, 1105 (Pa. 

Super. 1987), appeal denied, 542 A.2d 1370 (Pa. 1988) for the proposition 

that service of process is sufficient if it provides the defendant adequate 

notice of the lawsuit filed against it. While we agree with this well-settled 

proposition, it does nothing to answer the question before us, namely, 

whether service at the location of a McDonald’s franchise constitutes service 

on Appellee, the corporate franchisor. 

Addressing this service issue of fact pursuant to Rule 1028(c)(2),5

Appellee offered two affidavits establishing that no relationship exists 

between Appellee and the Pottsville McDonald’s, outside of the franchise and 

lease agreements for the land on which the Pottsville McDonald’s stands. 

Pursuant to DeLage, these affidavits were sufficient to place the burden on 

Appellants to come forward with evidence establishing the contrary. 

Appellants did not do so. Appellants produced only a document confirming 

Appellee’s ownership of the property. Appellee does not dispute that point. 

Appellants however, failed to establish that they served a person at the 

Pottsville McDonald’s who qualified as one of those persons authorized under 

Rule 424 to accept service on behalf of the Appellee. It was not sufficient 

____________________________________________

5

 See note three, supra. 
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for the Appellant to serve an employee of the Pottsville McDonald’s not 

employed or authorized to act on behalf of the Appellee, an absent landlord 

and franchisor, to perfect service on the Appellee under Rule 424. 

Regardless of whether the Appellee could be considered to regularly conduct 

business at the Pottsville McDonald’s site based upon its ownership of the 

real estate, Appellants still were obligated to serve a person authorized to 

accept service on behalf of the Appellee. They did not do so. Based on all of 

the foregoing, we conclude the trial court did not err in finding Appellants 

failed to serve process on Appellee. 

Appellants also argue the trial court erred in sustaining Appellee’s 

preliminary objections because they were untimely. Appellee filed its 

preliminary objections more than 11 months after Appellants filed the 

amended complaint. Appellants rely on Pa.R.C.P. 1026(a), which provides 

that “every pleading subsequent to the complaint shall be filed within twenty 

days after service of the preceding pleading[.]” Pa.R.C.P. 1026(a). We 

have already explained why Appellants failed to establish they served the 

complaint on Appellee. Appellee correctly asserts that, under the plain 

language of Rule 1026(a), the twenty-day requirement applies only “after 

service” of the preceding pleading. Since service never occurred, the Rule 

1026(a) timeliness requirement posed no impediment to Appellee’s 

preliminary objections. 
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Appellants further argue they have been unfairly prejudiced by 

Appellee’s decision to file preliminary objections after the applicable twoyear statute of limitations period expired.6

 Appellants’ failure to serve 

process on Appellee severely undercuts this argument. Furthermore, the 

facts as found by the trial court indicate Appellants were at fault for 

permitting the statute of limitations to expire: 

[Appellants] were aware of the questionable service since 

on or about April 25, 2012. [Appellants] filed an amended 

complaint in response to the preliminary objections alleging 

improper service. They modified the complaint to assert that 

[Appellee] has a restaurant located at Route 61 and Tunnel 

Road, Route 61 North, Pottsville, PA 17901. They did not take 

any steps to correct the deficiencies in service alleged in the 

preliminary objections to the original complaint. [Appellee] also 

provided evidence that it informed [Appellants] of the name of 

the franchise owner well before the running of the statute of 

limitations. 

This court allowed [Appellants] to conduct discovery and 

provide evidence of service before ruling on [Appellee’s] 

preliminary objections. The court Order provided that this court 

would rule on the preliminary objections at the close of 60 days 

based upon the evidence of record. [Appellants] failed to 

provide any additional information to this Court in support of its 

position that the [Pottsville McDonald’s] was a regular place of 

business of [Appellee]. [Appellee] filed two affidavits indicating 

its lack of ownership in the business and identifying the franchise 

owner. [Appellants] did not file any documents or motions until 

approximately 115 days after the Order that allowed them 60 

days to provide such evidence before the Court would rule on 

the objections. After 115 days, they filed a Motion for Extension 

of Time, which this Court did not address as we did not receive it 

before we lost jurisdiction over the case due to the Notice of 

____________________________________________

6

 Appellants concede the two-year statute of limitations expired on February 

11, 2013. See 42 Pa.C.S.A. § 5524(2). 
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Appeal. Furthermore, there was no evidence on the record that 

the Plaintiffs ever properly served McDonald’s Corporation, which 

was the basis for this Court’s dismissal of the action. 

Trial Court Opinion, 7/17/14, at 7-8. 

Regardless of their characterization of Appellee’s tactics, Appellants 

had sufficient information and sufficient time to effect service before the 

two-year limitations period expired. Appellee did not prevent Appellants 

from timely serving process at Appellee’s corporate offices if they believed 

Appellee was the proper defendant and subject to the trial court’s 

jurisdiction. Indeed, Appellants’ counsel, in his May 2, 2012 email to 

Appellee’s counsel, noted he had time under the “SOL” to effect service on 

Appellee in the event counsel refused to accept service. Preliminary 

Objections to Plaintiffs’ Amended Complaint, 4/19/13, at Exhibit B. Despite 

this, Appellants took no further action to effect service. Appellee’s counsel 

provided the Bartlett Affidavit to Appellants’ counsel as an attachment to his 

May 29, 2012 email. Id. at Exhibit C. The Bartlett Affidavit identified W. 

Pace Limited Partnership as the McDonald’s franchisee. Appellants made no 

effort to substitute the franchisee for Appellee or add it as an additional 

defendant. 

In summary, the record supports the trial court’s findings that 

Appellants had sufficient information to effect proper service within the 

statute of limitations period. Some of that information came in the form of 

an affidavit from the franchise owner filed by Appellee. 
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For all of the foregoing reasons, we conclude the trial court did not err 

in sustaining Appellee’s preliminary objections. 

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/3/2015