              IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marwan Kreidie                           :
                                         :   No. 846 C.D. 2016
             v.                          :
                                         :   Argued: February 7, 2017
Commonwealth of Pennsylvania,            :
Department of Revenue,                   :
                 Appellant               :


BEFORE:      HONORABLE P. KEVIN BROBSON, Judge
             HONORABLE PATRICIA A. McCULLOUGH, Judge
             HONORABLE DAN PELLEGRINI, Senior Judge


OPINION BY
JUDGE McCULLOUGH                                           FILED: March 10, 2017


             The Commonwealth of Pennsylvania, Department of Revenue (the
Department) appeals from the April 21, 2016 order of the Court of Common Pleas of
Philadelphia County (the trial court), which denied the Department’s motion to strike
entry of default judgment, its petition to open default judgment, and its motion for a
new trial.


                           Facts and Procedural History
             Marwan Kreidie (Appellee) filed a two-count complaint against the
Department on May 15, 2015, alleging discrimination in employment following his
discharge from the Department’s Bureau of Pennsylvania State Lotteries.
(Reproduced Record (R.R.) at 15-16.)
             Appellee filed an affidavit of service of this complaint indicating service
upon a Brenda Myles, who was labeled “Manager” and “a person authorized to
accept service” at the Commonwealth of Pennsylvania, Department of Treasury (not
Department of Revenue) at 700 Packer Avenue, Philadelphia, Pennsylvania, on May
22, 2015. There is no evidence that Appellee or his process server ever attempted to
serve the Attorney General of Pennsylvania.      There is nothing in the record to
identify who Ms. Myles is and whether the Packer Avenue address was a site for the
Department or just for the “Department of Treasury” as affirmed on the affidavit of
service. (R.R. at 22.) However the Department has since conceded that the Packer
Avenue address “does correspond with the street address for the Department of
Revenue.” (Brief for Appellant at 7, fn 2.)
             On August 3, 2015, Appellee sent a notice of praecipe to enter default
judgment (commonly referred to as a “ten day notice”) on the prescribed
Pennsylvania form to the Department at the 700 Packer Avenue address. This notice
was received by the Department on August 6, 2016. (R.R. at 28-31.) There is no
evidence of any effort by Appellee to send the “ten day notice” to the office of the
Attorney General. On September 11, 2015, a praecipe to enter default judgment was
filed. In addition to judgment, the praecipe sought “a hearing to assess damages.”
(R.R. at 23-24.)
             Appellee attached an exhibit (Exhibit D) to the praecipe, which included
a transcript of an e-mail exchange between his counsel and counsel for the
Department. The first e-mail message was from Appellee’s counsel on August 13,
2015, reading in pertinent part, “How long of an extension do you need for an
answer/New Matter only?” (R.R. at 32.) The Department’s counsel replied the same
day that, “I would like 21 days because I have quite a few more depositions the next 2
weeks.” Id. Appellee’s counsel replied, “Agreed.” Id.




                                          2
              The prothonotary entered judgment twenty-nine days after the above e-
mail exchange, and on October 13, 2015, the trial court issued a notice scheduling a
hearing on Monday, December 21, 2015, to assess damages on the judgment. (R.R.
at 34.)
              On Friday, December 18, 2015, the Department electronically filed a
petition to open judgment, which the court administrator rejected on December 21,
2015, because it needed to have been filed “in motion section.”                Accordingly, that
petition was not before the trial court when it convened the hearing on assessment of
damages. (R.R. at 39, 118-19, 121-22.)
              Appellee was the sole witness at the hearing. (R.R. at 35-62.) He
testified about his employment with the Department from January 1, 2011, through
March 5, 2011, what his pay and benefits totaled, and until what age he expected to
work. He did not address the allegations in his complaint as to liability.1
               At the close of the hearing, the trial court asked both parties to submit
proposed findings of fact and conclusions of law by January 8, 2016. (R.R. at 61-62.)
Both sides availed themselves of this post-hearing opportunity (R.R. at 130-46) and
the Department also submitted an affidavit from Linda Miller consisting of records
and other evidence not adduced at the hearing. (R.R. at 147-74.) Miller was the
Director of Human Resources for the Department.                 Miller’s affidavit contradicted
Appellee’s testimony before the trial court because it alleged that Appellee’s position
with the Department ended effective March 1, 2011, but that he immediately
commenced other Commonwealth employment the next day, attaching exhibits



          1
           The complaint contains allegations that his termination is related to his political party
affiliation, Democratic, and his religious affiliation, Muslim. See, R.R. at 15-21.



                                                 3
demonstrating the Commonwealth positions, the pay scales, and the levels of
benefits. (R.R. at 147-74.)
             In the meantime, the Department filed a second petition to open
judgment that was finally accepted for filing on December 23, 2015, which was
opposed by Appellee and denied by the trial court. (R.R. at 66-129, 175-86.)
             On March 14, 2016, the trial court issued its findings of fact, conclusions
of law, and award in favor of Appellee in the amount of $79,989.00. (R.R. at 187-
93.) The Department filed a motion for post-trial relief, asking alternatively for the
court to strike the default judgment, open the judgment, or grant a new trial
concerning damages. (R.R. at 194-205.)
             The trial court denied the Department’s post-trial motion by order dated
April 5, 2016, and the Department filed a timely appeal to this Court. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 10, 2016. In its opinion,
the trial court: (1) found that any objection to service of process was waived by the
Department, so that the judgment should not have been stricken; (2) found that the
Department’s petition to open judgment was not timely and lacked adequate excuse,
so that the trial court acted within its discretion in not opening the judgment; and, (3)
because the “after-discovered evidence” regarding damages was available to the
Department and/or could have been discovered with due diligence prior to the
hearing, the trial court did not abuse its discretion in refusing a new trial as to
damages.




                                           4
                                          Discussion
              On appeal,2 the Department argues that the default judgment should have
been stricken because of a facial defect on the record when the judgment was entered.
We agree.
              Pennsylvania practice is clear regarding whether to strike a judgment. If
there is a defect on the record as of the date the judgment was entered (an error so
obvious, one can see it on the face of the court record, or a “facial defect”), then the
judgment must be stricken.
              The Department argues that the failure to even attempt to serve the
Attorney General amounts to a defect on the face of the record as the record existed
when the judgment was entered. Therefore, the Department concludes, the judgment
should have been stricken.
              The Appellee argues, however, that such “facial defects” (such as
improper service where, as here, Appellee neglected to serve the Attorney General in
violation of state law), can be waived by a defendant, and were in fact waived here
when counsel for the Attorney General’s office agreed to the extension of time only
to file an answer or new matter (in other words, to preclude filing of preliminary
objections). Appellee argues that because preliminary objections were precluded by
the e-mail agreement and there are no other vehicles to challenge improper service,
any argument was waived by the Department. Further, Appellee argues (and the trial
court found) that the Department’s participation in the December 21, 2015, hearing
amounted to a second act of waiver on the Department’s part.

       2
        Our review in this non-jury setting is limited to determining whether an error of law was
committed or whether constitutional rights were violated. Swift v. Department of Transportation,
937 A.2d 1167, 1172 n.5 (Pa. Cmwlth. 2007).




                                               5
            We agree with the Department that the judgment should have been
stricken. When confronted with a petition to strike, “the court may only look to the
facts of record at the time the judgment was entered to decide if the record supports
the judgment; a judgment should be stricken only if a fatal defect appears on the face
of the record.” Cintas Corporation v. Lee’s Cleaning Service, Inc., 700 A.2d 915,
917 (Pa. 1997).
            In the present case, the affidavit of service (R.R. at 22) shows no service
on the Attorney General of Pennsylvania. Such a failure is directly contrary to both
statute and court rule, e.g., 42 Pa.C.S. §8523(b) and Pa.R.C.P. 422(a), both of which
direct a party serving process on any Commonwealth party to serve it as well on the
Attorney General.
            The relevant statute reads, “[s]ervice of process in the case of an action
against the Commonwealth shall be made at the principal or local office of the
Commonwealth agency that is being sued and at the office of the Attorney General.”
42 Pa.C.S. §8532(b) (emphasis supplied).
            The Pennsylvania Rules of Civil Procedure are equally clear: “Service
of original process upon the Commonwealth or an officer of the Commonwealth or a
department, board, commission, or instrumentality of the Commonwealth or a
member thereof, shall be made at the office of the defendant and the office of the
attorney general by handing a copy to the person in charge thereof.” Pa.R.C.P.
422(a) (emphasis supplied).
            Such a failure “cannot be overlooked” and “cannot be excused,” and the
failure by Appellee to serve the Attorney General renders Appellee’s service on
Department “defective and deprived the trial court of jurisdiction.”        Reaves v.
Knauer, 979 A.2d 404, 410 (Pa. Cmwlth. 2009). The failure to serve the Attorney



                                           6
General “is a fatal defect appearing on the face of the record” at the time the default
judgment was entered.         Id.    Such a facial defect cannot be waived. “Without
jurisdiction, the prothonotary lacked power to enter a default judgment.” Id.
              Appellee has attempted to distinguish Reaves from the present case,
arguing that the Department needed to show that it lacked actual knowledge of his
lawsuit. Such reasoning stretches the sound analysis of this Court in Reaves so as to
make its holding a nullity, and we reject that reasoning.


                                          Conclusion
              Because Appellee failed to serve the complaint on the Attorney General,
his service was defective and deprived the trial court of jurisdiction to enter a default
judgment.
              Accordingly, the trial court’s order denying the Department’s motion to
strike the judgment is reversed.3




                                                ________________________________
                                                PATRICIA A. McCULLOUGH, Judge




       3
         The Department also argues that the trial court erred in refusing to open the judgment and
in refusing to grant a new trial on damages. Given our disposition above, however, we need not
address these arguments.



                                                7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Marwan Kreidie                            :
                                          :    No. 846 C.D. 2016
             v.                           :
                                          :
Commonwealth of Pennsylvania,             :
Department of Revenue,                    :
                 Appellant                :


                                      ORDER


             AND NOW, this 10th day of March, 2017, the order of the Court of
Common Pleas of Philadelphia County (trial court) dated April 21, 2016, is hereby
reversed, the default judgment is stricken, and the matter is remanded to the trial
court for further proceedings.
             Jurisdiction relinquished.



                                              ________________________________
                                              PATRICIA A. McCULLOUGH, Judge
