VICTOR R. SAWYERS Appellant
NOVELETTE DAVIS AND JOSITA DEJESUS
from the Order Entered July 6, 2018 In the Court of Common
Pleas of Dauphin County Civil Division at No(s):
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
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." We vacate the order dismissing the case
and remand for further proceedings.
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
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.
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.
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.
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
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.
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.
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.
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.
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?
brief at 4 (unnecessary capitalization omitted).
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).
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.
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 other evidence in support of its
preliminary objections challenging jurisdiction."). When
the plaintiff introduces such evidence, defendant must come
forward and rebut it.
of original process upon an out-of-state defendant is
governed by Pa.R.C.P. 403-405. Rule 404 provides in pertinent
part: "Original process shall be served outside the
Commonwealth within ninety days of the issuance of the writ
or the filing of the complaint or the reissuance or the
reinstatement thereof. . . (2) by mail in the manner provided
by Rule 403." Pa.R.C.P. 404. Rule 405(c) provides that
service of process by mail under Rule 403 "shall include
a signed return receipt signed by the defendant."
Pa.R.C.P. 405. Rule 403 directs that "a copy of the
process shall be mailed to the defendant by any form of mail
requiring a receipt signed by the defendant or his authorized
agent. Service is complete upon delivery of the mail."
Pa.R.C.P. 403. Nonetheless, Pa.R.C.P. 126 provides that the
Rules of Civil Procedure "shall be liberally
construed" and that courts "at every stage of any
such action or proceeding may disregard any error or defect
of procedure which does not affect the substantial rights of
the parties." Pa.R.C.P. 126.
support of her claim that service of process was defective,
Ms. Davis relies solely upon a technical defect in the
service of process: the lack of a return receipt card. She
maintained below, and renews the argument herein, that absent
a return of service bearing her signature, original service
of process was not effectuated. Davis's brief at 12-13
(citing ANS Assocs. v. Gotham Ins Co., 42 A.3d 1074
offered evidence in the form of an affidavit that the
complaint was mailed by certified mail, return receipt
requested as provided in the rules. Appellant contended
below, and again on appeal, that counsel complied with the
Rules, but that the green return receipt card was lost by the
USPS. In lieu of a return receipt, Appellant provided USPS
tracking documentation confirming that the complaint was sent
by certified mail and that it was delivered
to an individual who signed for it at the
Brooklyn address where the search service had located Ms.
Davis. The USPS also furnished a scanned copy of the
signature of the recipient, although it was not clear that
the signature belonged to Ms. Davis.
Davis offered no countervailing evidence, not even an
affidavit. Furthermore, she did not dispute that the Brooklyn
address was a valid address for her, deny receiving the
certified mail, disavow the signature on the return receipt,
or allege that the person who signed the receipt was not
authorized to do so. Despite the total absence of
countervailing proof, the trial court focused on purported
inadequacies in Appellant's proof. It noted that the
certified mail sender's receipt was not post-marked; the
USPS tracking document indicated that it was sent
"certified," but did not denote return receipt
requested; and that the "unsigned letter from the USPS,
not on letterhead" provided only "a scanned image
of an illegible scribble and no printed version of the
name." Trial Court Opinion, 9/21/18, at 7. The trial
court concluded that, despite the additional documentation
from the USPS, "[t]echnical non-compliance with the
service of process rules was never properly cured."
Id.at 9. "Based upon this evidence," the
court reasoned, "it cannot be concluded that service was
properly effectuated on Novelette Davis." Id.
the trial court's ruling flawed in many respects. First,
the trial court did not view the evidence in the light most
favorable to Appellant as the non-moving party, as it was
required to do. The certified mail sender's receipt,
although not postmarked, contains the name of the intended
recipient, Novelette Davis, at 2822 Beverley Road, Brooklyn,
New York, 11226. It bears a twenty-digit number, which is the
same number that is referenced on the USPS tracking results.
The tracking results confirm that the mail associated with
that sender's receipt arrived at the United States Post
Office in Brooklyn on March 25, 2017 at 2:00 p.m., and was
delivered to an individual at the address noted on March 27,
2017, at 10:59 a.m. The recipient signed for it. Further
inquiry from Appellant's counsel yielded correspondence
from the USPS showing a scanned copy of the signature of the
recipient and the address.
in our review of the record, we observed the following.
Service was attempted upon Ms. DeJesus by certified mail,
return receipt requested, as evidenced by a green return
receipt card in the file. Notably, the USPS tracking
information for that attempted service described the product
merely as "certified mail," the same notation as
the one appearing on the tracking documents for Ms. Davis.
Thus, the "certified mail" notation on the USPS
tracking documents was apparently the designation used by the
USPS for certified mail, return receipt requested.
trial court makes much of the fact that the USPS
correspondence is not on USPS letterhead and that the name of
the recipient is illegible. However, Ms. Davis did not
challenge the authenticity of the USPS documents. Nor did she
deny, let alone offer any evidence, refuting that delivery
was made at her address, or that she signed for
that Appellant offered sufficient evidence that he had
complied with the manner of service designated in Rules 403,
404, and 405 to shift the burden back to Ms. Davis. Ms. Davis
offered no evidence refuting Appellant's evidence that
service complied with the Rule. Glaringly absent was any
allegation or proof that she did not reside at 2822 Beverley
Road, Brooklyn, New York, that delivery was not made, or that
it was not her signature on the USPC pink sheet.
Supreme Court noted in Cintas Corp. v.
Lee's Cleaning Services, Inc., 700 A.2d
915, 917 (Pa. 1997), "the absence of or a defect in a
return of service does not necessarily divest a court of
jurisdiction of a defendant who was properly served."
Id. (citation omitted; emphasis in original). The
Court added that, "So long as the return of service
provides sufficient facts to allow the court to determine if
service was proper, technical defects in the return will not
deprive the court of jurisdiction." See id.
that the evidence, viewed in the light most favorable to the
non-moving party, Appellant herein, showed that service was
made by certified mail return receipt requested. Thus,
"Service [was] complete upon delivery of the mail."
addition, Appellant argues that any technical defect in
service of process was excused because Ms. Davis had notice
of the lawsuit. In McCreesh v. City of Philadelphia,
888 A.2d 664, 666 (Pa. 2005), our Supreme Court adopted the
more flexible approach advocated in Leidich v.
Franklin, 575 A.2d 914 (Pa.Super. 1990), "excusing
plaintiffs' initial procedurally defective service where
the defendant has actual notice of the commencement of
litigation and is not otherwise prejudiced." Our High
Court concluded that this view "sufficiently protects
defendants from defending against stale claims without the
draconian action of dismissing claims based on technical
failings that do not prejudice the defendant."
trial court acknowledged that actual notice could excuse
technical defects in service. However, the court found the
record to be "devoid" of evidence that Ms. Davis
had notice of the lawsuit, and dismissed counsel's
representations that he had spoken to Ms. Davis and that she knew
about the lawsuit, as "he offered no proof
thereof." Trial Court Opinion, 9/21/18, at 9.
record refutes the trial court's assessment of the
evidence. Counsel's representations were not the only
indication that Ms. Davis had notice of the lawsuit. The
November 9, 2016 Sheriff's return bore a notation that
Ms. Davis called and advised the Sheriff on that date that
she lived out of town. It stated further that Ms. Davis
refused to provide a current address. One can reasonably
infer from the fact that Ms. Davis initiated contact with the
Sheriff's office that she knew that service had been
attempted at her former address, that she had notice of the
lawsuit, and that she was avoiding service.
foregoing reasons, we find that it was not clear and free
from doubt that service of process was defective, and hence,
dismissal of the action was improper. Ms. Davis offered no
evidence to refute Appellant's evidence that counsel
served the complaint by certified mail return receipt
requested in compliance with Rules 403, 404, and 405.
Furthermore, there was evidence in the record that Ms. Davis
had notice of the lawsuit. Hence, we vacate the order
sustaining the preliminary objections and dismissing the case
with prejudice and remand for further proceedings.
vacated. Case remanded. Jurisdiction relinquished.
Stabile joins the opinion.