Sawyers v. Davis, 1186 MDA 2018

Citation222 A.3d 1
Decision Date22 October 2019
Docket NumberNo. 1186 MDA 2018,1186 MDA 2018
Parties Victor R. SAWYERS, Appellant v. Novelette DAVIS and Josita DeJesus
CourtSuperior Court of Pennsylvania

Daniel J. Siegel, Havertown, for appellant.

Wade D. Manley, Lemoyne, for Davis, N., appellee.

Marsha L. Albright, Harrisburg, for Davis, J., appellee.

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY BOWES, J.:

Victor R. Sawyers appeals from the July 6, 2018 order denying reconsideration of the June 19, 2018 order dismissing his complaint against Novelette Davis with prejudice, and expressly determining, pursuant to Pa.R.A.P. 341(c), that "an immediate appeal would facilitate resolution of the entire case."1 We vacate the order dismissing the case and remand for further proceedings.

This lawsuit arises from a head-on collision on October 20, 2014, on State Route 322 in Dauphin County, Pennsylvania. Appellant was a passenger in a vehicle driven by his cousin Ms. Davis, which collided head-on with a vehicle operated by Josita DeJesus. Appellant filed a complaint against both Ms. Davis and Ms. DeJesus on October 12, 2016, alleging that their negligence caused his injuries. Specifically, Appellant pled that Ms. Davis was driving the wrong way on a one-way road while legally intoxicated at the time of the accident. Complaint, 10/12/16, at ¶13. He also alleged that Ms. DeJesus was driving negligently and recklessly and that she was operating her vehicle while under the influence of illegal drugs.

Appellant made several unsuccessful attempts through the Sheriff's office to personally serve the defendants. With respect to Ms. Davis specifically, the Sheriff's November 9, 2016 return of service reported that Ms. Davis was not found at the address listed in the police report. The return further indicated that Ms. Davis called and advised the Sheriff on November 9, 2016, that she lived out of town, and noted that she refused to provide a current address.

Appellant filed a praecipe to reinstate the complaint on November 25, 2016, and again tried to effect personal service upon Ms. Davis at a different address on Lexington Street in Harrisburg. The Sheriff filed a return indicating that Ms. Davis was not found at that address on December 1, 2016, and that the current resident stated that Ms. Davis did not live at that address. On January 27, 2017, Appellant filed another praecipe to reinstate the complaint. On February 1, 2017, the Sheriff attempted to serve Ms. Davis at an address on South 13th Street in Harrisburg. The return of service indicated that Ms. Davis did not live there and was unknown to the person residing there.

On February 27, 2017, Appellant filed a petition for alternative service upon Ms. Davis. In it, Appellant described the multiple attempts to serve Ms. Davis at addresses gleaned from the police report, four internet database searches, and a deed search. Counsel for Appellant appended to the petition his own affidavit attesting to the facts in the petition, a memorandum of law, the police report, copies of the service returns, the internet results summaries for the database searches, and deed search results. The trial court denied the petition because it was not a proper application for the relief sought under Local Rule 206.1, and the pleading did not contain a proposed order and rule to show cause or a distribution legend reflecting the persons to be served. The court directed Appellant to read the local rules, to resubmit a conforming filing, and to conduct a good faith investigation and internet search to locate Ms. Davis.2

Thereafter, according to counsel for Appellant, he spoke to Ms. Davis and learned that she was living in Brooklyn, New York. He hired a search service to locate Ms. Davis's address. Counsel then sent a copy of the complaint by certified mail, return receipt requested, to Ms. Davis at that address in compliance with the rules for service of out-of-state defendants, and filed an affidavit of service detailing those steps. See Affidavit, 3/24/17, at 1; see also Pa.R.C.P. 404 and 403. Counsel for Appellant attached thereto a USPS sender's receipt, and the information from the search service showing that Ms. Davis lived at that Brooklyn address.

Counsel for Appellant filed yet another praecipe to reinstate the complaint on May 9, 2017, and a second affidavit on June 8, 2017, appended to which were "USPS Tracking Results" indicating service was made by certified mail to an individual at 2822 Beverley Road, Brooklyn, New York 11226 on March 27, 2017.

The record reveals that counsel for Appellant notified Ms. Davis's insurer that service had been effectuated and provided a courtesy copy of the complaint. The insurer requested and was granted a short extension in which to file an answer on behalf of its insured. When no answer was forthcoming almost one year later, Appellant filed a ten-day notice of default. Just a few days later, on April 20, 2018, counsel for Ms. Davis filed preliminary objections endorsed with a notice to plead, alleging that service of process was improper as it was not sent certified mail, return receipt requested. Appellant filed preliminary objections to Ms. Davis's preliminary objections challenging their timeliness, and appended thereto additional documentation obtained from the USPS.

The trial court heard oral argument on the preliminary objections on June 19, 2018. In support of the preliminary objections, counsel for Ms. Davis argued that service had to be effected by certified mail, return receipt requested, and that it required the return receipt bearing the signature of the defendant or her authorized agent. Counsel for Appellant countered that the complaint was sent certified mail, return receipt requested, as he had attested in his affidavits filed with the court. However, he represented that the green return receipt card was lost by the USPS. Counsel supplied tracking documentation from the USPS showing that the complaint was delivered at the Brooklyn address, and the scanned signature of the individual who accepted it. Moreover, counsel for Appellant orally represented to the court that Ms. Davis had contacted him and was aware of the lawsuit and the earlier attempts to serve her.

The trial court subsequently ruled that Appellant did not achieve service on Ms. Davis by certified mail, return receipt requested in accordance with Pa.R.C.P. 404 and 403. In support of its finding, the court pointed to the lack of a green return receipt card, a notation on the tracking documents that said merely "certified mail," and the absence of a USPS letterhead on the correspondence containing the scanned signature. Trial Court Opinion, 9/21/18, at 9. It discounted counsel's representation that he spoke to Ms. Davis over the telephone as "he offers no proof thereof." Id. Moreover, it found that the scribbled signature could not be determined to belong to Ms. Davis. The court concluded that the record was "devoid of any evidence that Ms. Davis had actual notice of the commencement of the litigation." Id. at 7. Hence, the court sustained Ms. Davis's preliminary objections to service of process, and dismissed the case against her with prejudice.

Appellant filed a motion for reconsideration on June 29, 2018, to which he appended USPS correspondence containing a copy of the signature from the certified mail return receipt, the internal delivery signature record called "the pink sheet." Motion for Reconsideration, 6/29/18, at ¶10, Exhibit H. Reconsideration was denied by order entered July 6, 2018, which contained the trial court's express determination "that an immediate appeal of this Order would facilitate resolution of the entire case." Order, 7/6/18, at 1. Appellant timely appealed and he presents one question for this Court's review:

Pa.R.Civ.P. 404 permits service of process outside the Commonwealth by mail, consistent with Pa.R.Civ.P. 403. Under Pa.R.Civ.P. 403, service is complete upon delivery of mail requiring a receipt to a defendant or his authorized agent. Therefore, did the trial court err by dismissing the complaint when Plaintiff (1) served the complaint by certified mail return receipt requested at defendant's New York residence and (2) the U.S. Postal Service confirmed delivery of the complaint and provided a receipt containing the signature of the individual who accepted the mailed complaint at defendant's residence?

Appellant's brief at 4 (unnecessary capitalization omitted).

We are reviewing an order that sustained preliminary objections to service of process and dismissed the action. In conducting such review, "our standard of review is de novo and our scope of review is plenary. We must determine whether the trial court committed an error of law." Trexler v. McDonald's Corp. , 118 A.3d 408, 412 (Pa.Super. 2015) (internal citations and quotation marks omitted).

When we review the trial court's ruling on preliminary objections, we apply the same standard as the trial court. Id. In deciding a preliminary objection for lack of personal jurisdiction that, if sustained, would result in dismissal, the court must consider the evidence in the light most favorable to the nonmoving party. Hall-Woolford Tank Co., Inc. v. R.F. Kilns, Inc. , 698 A.2d 80 (Pa.Super. 1997). Where upholding the sustaining of preliminary objections results in dismissal of the action, we may do so only in cases that are clear and free from doubt. Baker v. Cambridge Chase, Inc. , 725 A.2d 757, 764 (Pa.Super. 1999).

A mere allegation that the court lacks jurisdiction does not automatically place the burden on the plaintiff to prove that the court has jurisdiction. A defendant challenging personal jurisdiction by preliminary objection bears the burden of supporting such objections by presenting evidence. Trexler , supra at 412 (citing 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...

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    ...only upon the presentation of evidence supporting the jurisdictional challenge does the burden shift to the petitioner. Sawyers v. Davis , 222 A.3d 1, 5 (Pa. Super. 2019). We have held that a mere allegation that the court lacks jurisdiction is insufficient to shift the burden to the petiti......
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