J-A28023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ROBERT DUNCAN                                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

MITRA QSR D/B/A KFC

                                                   No. 3292 EDA 2014


               Appeal from the Order Entered October 15, 2014
             In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): 4179 March Term, 2014


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                       FILED JANUARY 12, 2016

      Appellant, Robert Duncan, appeals pro se from the order sustaining

the preliminary objections of appellee, Mitra QSR d/b/a KFC (“KFC”), and

dismissing Duncan’s complaint. Duncan contends that the trial court erred

in striking the default judgment he took against KFC in this action, and

further, erred in subsequently sustaining KFC’s preliminary objections. After

careful review, we affirm.

      On March 27, 2014, Duncan filed a complaint in the trial court alleging

that a KFC employee had discriminated against him based upon his race and

religion.   Specifically, Duncan claimed that he had been charged an extra

$0.80 per piece of chicken due to his race and religion.     Duncan sought

$500,000 in damages against KFC.        The complaint did not contain any

indication that Duncan had received a “right to sue” letter from any
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appropriate agency.1        Attached to the complaint was an affidavit of service

signed by Leah Mann, indicating that the complaint had been served on KFC

by personal delivery on the same date it was filed.

       On April 30, 2014, Duncan filed a praecipe to enter default judgment

on his complaint. Default judgment was entered, and Duncan later filed a

praecipe for a writ of execution against KFC in the amount of $500,000. The

trial court subsequently entered an order scheduling an assessment of

damages hearing for August, 2014. Shortly thereafter, on June 27, 2014,

KFC filed a petition to strike or open the default judgment.

       The trial court granted the petition to strike the default judgment,

holding that Duncan had failed to properly serve KFC.            The trial court

dismissed the petition to open as moot. KFC subsequently filed preliminary

objections to Duncan’s complaint, asserting that the trial court did not have

jurisdiction since Duncan had not exhausted his administrative remedies.

The trial court sustained KFC’s preliminary objections and dismissed

Duncan’s complaint. This timely appeal followed.

       On appeal, Duncan first argues that the trial court erred in opening the

default judgment.       Initially, we note that Duncan confuses the remedy of

striking the judgment, which the trial court did here, with the remedy of
____________________________________________


1
  As discussed later in this memorandum, Pennsylvania statutory law
provides a bureaucratic remedy for Duncan’s claims, and Duncan was
required to exhaust the bureaucratic remedy, thereby receiving a “right to
sue” letter from the agency, before filing a complaint in the trial court.



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opening the judgment, which did not occur here. Striking a judgment and

opening a judgment are distinct remedies, and have distinct standards of

review on appeal. When presented with an issue premised upon a trial court

order striking a judgment, our standard of review is            set forth in

Knickerbocker Russell Co., Inc. v. Crawford, 936 A.2d 1145 (Pa. Super.

2007). There, we explained that

      [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.

      In determining whether fatal defects exist on the face of the
      record for the purpose of striking a judgment, a court may look
      only at what was in the record when the judgment was entered.
      We review a trial court’s refusal to strike a judgment for an
      abuse of discretion or an error of law.

Id., at 1146-1147 (citations omitted).

      Similarly, a challenge to an order granting a petition to open a

judgment, is reviewed for an abuse of discretion.      See PNC Bank, Nat.

Ass’n v. Bluestream Technology, Inc., 14 A.3d 831, 835 (Pa. Super.

2010). A petition to open judgment is an appeal to the equitable powers of

the court. See PNC Bank v. Kerr, 802 A.2d 634, 638 (Pa. Super. 2002).

As such, it is committed to the sound discretion of the hearing court and will

not be disturbed absent a manifest abuse of discretion.     See Bluestream

Technology, Inc., 14 A.3d at 835.        A “petition to open rests within the

discretion of the trial court, and may be granted if the petitioner (1) acts

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promptly, (2) alleges a meritorious defense, and (3) can produce sufficient

evidence to require submission of the case to a jury.” Id., at 836 (citation

omitted).

      As noted above, the trial court in this matter granted the petition to

strike, but dismissed the petition to open as moot. While we do not condone

Duncan’s failure to brief the appropriate issue, we decline to find waiver as

we easily conclude that the trial court correctly struck the default judgment.

      “Service of process is a mechanism by which a court obtains

jurisdiction of a defendant, and therefore, rules concerning service of

process must be strictly followed.”        Cintas Corp. v. Lee’s Cleaning

Services, Inc., 700 A.2d 915, 917 (Pa. 1997) (citation omitted).        In the

absence of valid service, a court is without jurisdiction over the defendant

and, as a result, lacks the power to enter judgment against the defendant.

See id, at 918. “However, 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). 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.

      Pursuant to Pa.R.C.P. 405(b), a return of service must “set forth the

date, time, place and manner of service, the identity of the person served

and any other facts necessary for the court to determine whether proper


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service has been made.”         The return of service attached to Duncan’s

complaint, signed by Leah Mann, does not identify the person served, nor

does it indicate the time or place of service. Absent this information, there

is no way for the court to determine whether proper service had been made.

Thus, the trial court did not abuse its discretion in striking the default

judgment for lack of service.

      In his second argument, Duncan contends that the trial court erred in

sustaining KFC’s preliminary objections and dismissing his complaint.    The

Pennsylvania Human Relations Act (“PHRA”) provides remedies for unlawful

racial and religious discrimination in public accommodations.   See Clay v.

Advanced Computer Applications, 559 A.2d 917, 919 (Pa. 1989); 43 P.S.

§ 953.    No action may be filed in court until administrative remedies are

pursued and exhausted under the PHRA. See Clay, 559 A.2d at 919-920.

When administrative remedies are exhausted, the administrative agency, in

this case the Philadelphia Human Relations Commission, must notify the

complainant of this fact. See 43 P.S. § 962(c)(1); 43 P.S. § 962.1. Upon

receiving this notice, the complainant is free to file a complaint in court.

See id.

      Duncan did not allege in his complaint that he had exhausted his

administrative remedies. He did not attach a copy of any notice from the

Philadelphia Human Relations Commission that he had exhausted his

remedies.    Nor did he allege that he had received notice that he had


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exhausted such remedies. As such, the trial court properly sustained KFC’s

preliminary objection and dismissed Duncan’s complaint.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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