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Ronald Resh; and v. andrew Brosnac; and Realty Concepts

March 30, 2012

RONALD RESH; AND VALERIE RESH, INDIVIDUALLY AND AS TRUSTEES OF THE RESH LIVING TRUST PLAINTIFFS
v.
ANDREW BROSNAC; AND REALTY CONCEPTS, DEFENDANTS



The opinion of the court was delivered by: James Knoll Gardner United States District Judge

OPINION

Plaintiffs Ronald Resh and Valerie Resh, individually and as trustees of the Resh Living Trust commenced this lawsuit against defendants Andrew Brosnac and Realty Concepts in the Court of Common Pleas of Berks County, Pennsylvania. Plaintiffs alleged that they were the victims of a real estate scam perpetrated by the defendants utilizing dummy corporations, forged deeds, sham leases, and inflated appraisals to arrange a sale of property to plaintiffs at inflated values from a seller who did not own it.

The Complaint alleges causes of action for fraud, fraudulent concealment, misrepresentation, breach of the duty of good faith and fair dealing and negligence. The Complaint also alleges violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, the Pennsylvania Real Estate Appraisers Certification Act, and the federal Racketeer Influence and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968.

On March 18, 2011 defendants filed a Notice of Removal in this court, removing the cause of action from the state court to the United States District Court for the Eastern District of Pennsylvania.

This matter is before the court on the following requests and motions:

1. Plaintiffs' Request for Entry of Default Pursuant to Rule 55(a) of the Federal Rules of Civil Procedure, which request was filed July 1, 2011 (Document 16);

2. Plaintiffs' Request for Entry of a Default Judgment Pursuant to Federal Rules of Civil Procedure 55(b)(1), which request was filed July 5, 2011 (Document 18); *fn1

3. Motion of Realty Concepts, Ltd. to Strike the Entry of Default and Default Judgment or, in the Alternative, to Set Aside the Entry of Default and Default Judgment, which motion to strike or set aside was filed July 27, 2012 (Document 22) ("Motion to Strike or Set Aside"); *fn2 and

4. Motion of Realty Concepts, Ltd. to Dismiss the Complaint, which motion was filed August 25, 2011 (Document 29)("Motion to Dismiss"). *fn3

Plaintiffs Ronald Resh and Valerie Resh, individually and as trustees of the Resh Living Trust, commenced this action by filing a praecipe for writ of summons in the Court of Common Pleas of Berks County, Pennsylvania on June 4, 2010. Subsequently, on February 16, 2011, they filed a Complaint in the same court. On March 18, 2011 one of the original defendants, Lawyers Title Insurance Co. (subsequently dismissed from the case by Order dated May 3, 2011 and filed May 4, 2011), removed the case to this Federal court.

Defendant Realty Concepts is a corporation with an office in Fresno, California. *fn4 Plaintiffs attempted to serve process upon Realty Concepts by mailing the Writ of Summons and, later, the Complaint, to Realty Concepts at its Fresno, California office. Plaintiffs' Complaint asserts claims of fraud (Count III), fraudulent concealment (Count VI), and conspiracy in violation of RICO (Count VII) against Realty Concepts and seeks damages in excess of $50,000 dollars on each of those counts. *fn5

CONTENTIONS OF THE PARTIES In support of its motions to strike and or set aside, and to dismiss, defendant Realty Concepts contends that plaintiffs' documentation fails to prove proper service of process because (1) plaintiffs did not mail the Summons and Complaint by "restricted delivery" mail; and (2) plaintiff's Affidavit of Service and the attached return receipt does not establish that the receipt was signed by an agent of Realty Concepts authorized to accept service of legal process. *fn6

Plaintiffs contend that they properly served the summons and Complaint upon Realty Concepts by mail. Specifically, plaintiffs assert that (1) "the Writ of Summons was addressed to Realty Concepts and the green [return receipt] card was signed by Carmel Sanders"; and (2) "the Complaint was also served on [Realty Concepts] by regular mail, as is permitted under the Pennsylvania Rules of Civil Procedure." *fn7

The party asserting the validity of service (here plaintiffs) bears the burden of proof on that issue. Wallace v. Federal Employees of U.S. District Court, EDPA, 325 Fed.Appx. 96, 101 n.4 (3d Cir. 2009). For the following reasons, I conclude that plaintiffs ...


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