J-A16034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES PINOSKI                                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

SHEFFIELD TAVERN, LLC, EDWARD
BRADLEY, INDIVIDUALLY AND T/A
SHEFFIELD TAVERN, LLC AND ALSO T/A
E & J ENTERPRISES, LLC

                            Appellees                No. 3277 EDA 2014


                Appeal from the Order Entered October 24, 2014
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): May Term, 2012, No. 1206


BEFORE: LAZARUS, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                      FILED SEPTEMBER 15, 2015

        James Pinoski appeals from the order entered in the Court of Common

Pleas of Philadelphia County, which struck the judgment against Edward

Bradley and E & J Enterprises, LLC (“E & J”) (collectively, Appellees) and

dissolved the writ of execution in attachment levied on bank accounts

belonging to Appellees. After careful review, we affirm.

        The trial court summarized the relevant facts and procedural history as

follows:

        On May 15, 2012, the then[-]living [appellant] James Pinoski
        commenced this action by complaint against Sheffield Tavern,
        LLC[,] trading as Sheffield Tavern (hereinafter referred to as
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A16034-15


       “Sheffield Tavern”).     [The complaint alleged that Pinoski
       sustained injuries when an employee of Sheffield Tavern
       recklessly attacked him and removed him from the
       establishment.] An affidavit of service as to Sheffield Tavern
       was filed on May 23, 2012. As of June 30, 201[2], an answer to
       the complaint was not filed; a default judgment was entered
       against Sheffield Tavern only.

       An assessment of damages hearing was held on April 16, 2013.
       The record, at the request of the [Pinoski], was left open to
       permit [Pinoski] to supplement the record. On August 21,
       2013[,] an order assessing damages against Sheffield Tavern in
       the amount of $135,000 was issued.

       Five (5) days after issuance of the order, on August 26, 2013,
       [Pinoski] filed a motion to amend the judgment to include
       Edward Bradley, Individually and t/a Sheffield Tavern, LLC and
       t/a E & J Enterprises, LLC. All parties were notified of the filing
       of the motion. No opposition was provided. On October 15,
       2013, the motion was granted.

       On July 24, 2014, a Praecipe to Issue a Writ of Execution against
       Sheffield Tavern, Edward Bradley, and E & J Enterprises, LLC 1
       was filed by counsel for the now[-]deceased [Pinoski]. On
       September 11, 2014, the writ was served upon the [Appellees’]
       bank accounts.       [Appellees’] accounts were subject to
       garnishment.
          1
             It was belatedly learned that [Pinoski] passed away
          sometime in 2014. The exact date is unknown as counsel
          for [Pinoski] failed to file a Notice of Death. See Pa.R.C.P.
          § 2355(a). It is noted that a personal representative of
          the decedent was not substituted.            See Pa.R.C.P. §
          2352(a).1

       On September 15, 2014, an emergency motion, subject of this
       appeal, was filed. Oral arguments were heard on September 16,
       2014 and October 20, 2014.        On October 24, 2014, the
       judgments against Edward Bradley and E & J Enterprises, LLC

____________________________________________


1
 We note that this action is not moot as it relates to Appellees. We make
no further comment on the status of Pinoski or his putative estate.



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J-A16034-15


      were stricken as void and the writs [served on their bank
      accounts were] dissolved.

Trial Court Opinion, 2/9/15, at 1-2.

      Pinoski timely filed a notice of appeal and court-ordered concise

statement of errors complained of on appeal.      Pinoski raises the following

issues for our review:

      1. Did the lower court have proper jurisdiction over [Appellees]
         in the case?

      2. Did the lower court properly grant the Motion to Amend the
         Name [of] the [Appellees] in the case?

      3. Did the [Appellees] fail to file a timely appeal from a “final
         order?”

      4. By [their] intentional delay, did [Appellees] waive the right to
         seek vacating the judgment?

      5. By [their] intentional delay, did [Appellees] waive the right to
         have the default judgment opened?

Brief of Appellant, at v.

      Though Pinoski lists several issues for our review, the crux of the

instant matter is whether the judgment against Bradley and E & J was void

because the trial court did not have jurisdiction over them.        Thus, the

dispositive question before us is whether the trial court erred in granting the

Appellees’ petition to strike the judgment on this basis.

      A petition to strike a judgment alleges that there is a fatal defect or

irregularity on the face of the record. EMC Mortgage, LLC v. Biddle, 114

A.3d 1057, 1063 (Pa. Super. 2015).           If the nature of the defect is

jurisdictional, the judgment is void and may be stricken at any time. M & P

Management, L.P. v. Williams, 937 A.2d 398, 400-01 (Pa. 2007). For a

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J-A16034-15



court to exercise jurisdiction over a party, the party must have been served

with a complaint in accord with the rules of civil procedure. “If there is no

valid service of initial process, a subsequent judgment by default must be

deemed defective.     In the absence of valid service, a court lacks personal

jurisdiction over a party and is powerless to enter judgment against him.”

Brooks v. B & R Touring Co., 939 A.2d 398, 401 (Pa. Super. 2007)

(citation omitted).

      A petition to strike does not involve the discretion of the court; thus,

we review an order regarding a petition to strike to determine whether the

record is sufficient to sustain the judgment.   Wells Fargo Bank, N.A. v.

Lupori, 8 A.3d 919, 920 (Pa. Super. 2010). In this respect,

      a court may only look at what was in the record when the
      judgment was entered. Importantly, a petition to strike is not a
      chance to review the merits of the allegations of a complaint.
      Rather, a petition to strike is aimed at defects that affect the
      validity of the judgment and that entitle the petitioner, as a
      matter of law, to relief.

Oswald v. WB Public Sq. Assoc., LLC, 80 A.3d 790, 794 (Pa. Super.

2013).

      Instantly, at the time judgment was entered, neither Bradley nor E & J

were parties to the action. They were never served with a complaint naming

them as parties or advising them of the claims asserted against them.

Instead, the record reveals that Appellees’ names were merely added to the




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J-A16034-15



judgment2 after it was obtained against a separate and unrelated legal

entity, Sheffield Tavern, LLC.3 Thus, the trial court did not have jurisdiction

over Bradley and E & J and the judgment against them is void as a matter of

law. See Brooks, supra, at 402 (where defendant was never served with

complaint naming her as defendant, judgment against her void for lack of

jurisdiction).

       Finally, we note that Pinoski’s arguments regarding whether Appellees

waived their right to strike the judgment are without merit, since a

judgment that is deemed to be void for jurisdictional reasons may be

stricken at any time. M & P Management, L.P., supra.

       Order affirmed.




____________________________________________


2
   Pinoski relied upon Pa.R.C.P. 1033 to add Appellees’ names to the
judgment, even though the rule is not a means of adding “a new and distinct
party.” Borough of Berwick v. Quandel Grp. Inc., 655 A.2d 606, 608
(Pa. Super. 1995). However, the fact that Appellees’ names were added to
the judgment is inconsequential because it does not cure the trial court’s
lack of jurisdiction.
3
 The record reveals that Appellees were aware of claims asserted against
Sheffield Tavern, LLC.      However, jurisdiction was not obtained over
Appellees since proper service of process was not made on them.



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J-A16034-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/15/2015




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