J-A34041-14


                                 2015 PA Super 131

ALEXANDRA AND DEVIN TREXLER,                       IN THE SUPERIOR COURT OF
HUSBAND AND WIFE                                         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 two-

year 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




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