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CINTAS CORPORATION v. LEE'S CLEANING SERVICES

September 16, 1997

CINTAS CORPORATION, APPELLANT
v.
LEE'S CLEANING SERVICES, INC., T/A LEE'S INDUSTRIES, INC., APPELLEE



Appeal from the Order of the Superior Court entered March 12, 1996 at No. 2228PHL95, reversing the Order of the Court of Common Pleas of Philadelphia County entered May 30, 1995 at No. 2008 February Term, 1994. Before: Flaherty, C.j., And Zappala, Cappy, Castille, And Newman, JJ. Madame Justice Newman. Mr. Justice Nigro did not participate in the consideration or decision of this case.

The opinion of the court was delivered by: Newman

OPINION OF THE COURT

MADAME JUSTICE NEWMAN

DECIDED: September 16, 1997

This appeal concerns a default judgment that Appellant, Cintas Corporation (Cintas), obtained against Appellee, Lee's Cleaning Services, Inc. (Lee's Cleaning). Lee's Cleaning filed a petition to strike the default judgment, alleging improper service of process. The Court of Common Pleas of Philadelphia County (trial court) denied the petition to strike and the Superior Court reversed. For the reasons that follow, we reverse the Superior Court.

FACTS AND PROCEDURAL HISTORY

In December of 1992, the parties entered into an agreement by which Cintas rented uniforms to Lee's Cleaning. When Lee's Cleaning allegedly failed to pay for the uniform rentals, Cintas filed a complaint for breach of contract on February 22, 1994. On February 28, 1994, Cintas served the complaint on Lee's Cleaning. Howard Zavodnick, Esquire, counsel for Cintas, filed a return of service on March 16, 1994 describing the method of service and stating that his employee, Albert Zavodnick, had served the complaint on Lee's Cleaning. The return of service provides, in relevant part, as follows:

HOWARD B. ZAVODNICK, hereby certifies that Albert Zavodnick did serve a true and correct copy of the Civil Action complaint upon the defendant, Lee's Cleaning Services Inc, at 3858 Pulaski Street, Philadelphia, PA 19140 on February 28, 1994 at 8:30 A.M. by hand delivering same to Virginia Watson, the person in charge.

After Lee's Cleaning failed to respond to the complaint, Cintas sent a ten-day notice of its intent to take a default judgment to Lee's Cleaning on August 31, 1994. Lee's Cleaning did not respond to the default notice. Cintas then filed a praecipe to enter a default judgment for $7,685.85 on September 23, 1994. The Prothonotary entered judgment against Lee's Cleaning on September 26, 1994. Approximately six months later, on March 23, 1995, Lee's Cleaning filed a petition to strike the default judgment. First, Lee's Cleaning argued that the return of service was defective because it was not completed by Albert Zavodnick, the person who actually made service, and thus, it violated Pa.R.C.P. 405, which requires the person making service to complete the return of service. Second, Lee's Cleaning argued that service of process was improper because the complaint was delivered to Virginia Watson, who was a receptionist and not a person "in charge" as required by Pa.R.C.P. 424. In support of this argument, Lee's Cleaning filed the affidavit of Nina Kinnard, its vice president, secretary and treasurer. The affidavit states that Watson was not the person in charge of business at Lee's Cleaning.

The trial court denied Lee's Cleaning's petition to strike the default judgment. Without addressing the Rule 405 claim, the court held that service was proper under Rule 424 because Kinnard's affidavit did not deny that Watson held herself out as the person in charge on the day Albert Zavodnick served the complaint. On appeal, the Superior Court held that the return of service was defective pursuant to Rule 405 because Albert Zavodnick did not complete it. Cintas Corp. v. Lee's Cleaning Services, Inc., 449 Pa. Super. 94, 672 A.2d 1371 (1996). *fn1 Based on its Disposition of the first issue, the Superior Court did not reach the Rule 424 claim that service was improper because Watson was not in charge of the office. Cintas then filed a petition for allowance of appeal, which we granted.

Discussion

In Resolution Trust Corp. v. Copley Qu-Wayne Associates, 546 Pa. 98, 683 A.2d 269 (1996), we described a petition to strike a judgment as follows:

A petition to strike a judgment is a common law proceeding which operates as a demurrer to the record. A petition to strike a judgment may be granted only for a fatal defect or irregularity appearing on the face of the record. . . . An order of the court striking a judgment annuls the original judgment and the parties are left as if no judgment had been entered.

Id. at 106, 683 A.2d at 273 (citations omitted). When deciding if there are fatal defects on the face of the record for the purposes of a petition to strike a judgment, a court may only look at what was in the record when the judgment was entered. Linett v. Linett, 434 Pa. 441, 254 A.2d 7 (1969). Here, Lee's Cleaning alleges that the record supporting the default judgment against it was ...


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