J-S10016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    THE BANK OF NEW YORK MELLON                    IN THE SUPERIOR COURT
                                                      OF PENNSYLVANIA
                             Appellee

                        v.

    LISA COLTON

                             Appellant                No. 613 EDA 2017


                 Appeal from the Order Entered January 9, 2017
              In the Court of Common Pleas of Philadelphia County
                         Civil Division at No: 150900357


BEFORE: GANTMAN, P.J.E, STABILE, and COLINS,* JJ.

MEMORANDUM BY STABILE, J.:                              FILED MAY 09, 2019

        Appellant, Lisa Colton, appeals from the January 9, 2017 order denying

her petition to open a default judgment in favor of Appellee, The Bank of New

York Mellon (“BNYM”). We affirm.

        BNYM filed this foreclosure action against Appellant on September 10,

2015.      The property involved is located at 319-321 South Third Street,

Philadelphia (“the 319 Action”). A separate foreclosure action between BNYM

and Appellant, involving an adjacent property at 323 South Third Street (“the

323 Action”) was pending before the 319 Action began.          Appellant was

represented by counsel in the 323 Action.




____________________________________________


*    Retired Senior Judge assigned to the Superior Court.
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      BNYM reinstated the complaint in the 319 Action on January 6, 2016,

but was unable to serve Appellant after multiple attempts. On February 23,

2016, BNYM filed a motion for alternative service pursuant to Pa.R.C.P. No.

430. The trial court granted that motion the next day, permitting BNYM to

serve Appellant by posting the property and by mail, in accord with

Pennsylvania Rules of Civil Procedure 430(a) and 410(c)(2) and (3). Appellant

never responded, and a default judgment against her was entered on June

17, 2016.   On September 14, 2016, Appellant filed a petition to open the

default judgment, along with a proposed answer, new matter, and

counterclaim. On January 6, 2017, at the conclusion of a hearing, the trial

court denied Appellant’s petition. This timely appeal followed.

      On appeal, Appellant claims the trial court erred in denying her petition

to open the default judgment because BNYM did not make a good faith effort

to locate her prior filing its motion for alternate service. “A petition to open a

default judgment is an appeal to the equitable powers of the court.           The

decision to grant or deny a petition to open a default judgment is within the

sound discretion of the trial court, and we will not overturn that decision

absent a manifest abuse of discretion or error of law.” Smith v. Morrell Beer

Distributors, Inc., 29 A.3d 23, 25 (Pa. Super. 2011). To be successful, a

petition to open judgment must be timely filed, must demonstrate that the

failure to file a timely answer can be excused, and must show a meritorious

defense. PNC Bank, N.A. v. Unknown Heirs, 929 A.2d 219, 228 (Pa. Super.


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2007).      Before we examine the merits of the petition, however, we must

determine whether the plaintiff properly served the defendant. Id. A court

without personal jurisdiction over a party cannot enter judgment against that

party.     Aquilino v. Philadelphia Catholic Archdiocese, 884 A.2d 1269,

1280 (Pa. Super. 2005). “[A]ction taken by a court without jurisdiction is a

nullity. Because jurisdiction over a person is dependent upon proper service,

the Pennsylvania Supreme Court has held that the rules relating to service of

process must be strictly followed.” Id.

         Instantly, after several unsuccessful attempts to serve Appellant, BNYM

moved for alternate service under Pa.R.C.P. No. 430(a).                 Rule 430(a)

provides:

         (a) If service cannot be made under the applicable rule the plaintiff
         may move the court for a special order directing the method of
         service. The motion shall be accompanied by an affidavit stating
         the nature and extent of the investigation which has been made
         to determine the whereabouts of the defendant and the reasons
         why service cannot be made.

            Note: A sheriff's return of “not found” or the fact that a
            defendant has moved without leaving a new forwarding
            address is insufficient evidence of concealment. Gonzales
            v. Polis, 357 A.2d 580 (Pa. Super. 1976). Notice of
            intended adoption mailed to last known address requires a
            “good    faith     effort”   to    discover  the   correct
            address. Adoption of Walker, 360 A.2d 603 (Pa. 1976).

            An illustration of a good faith effort to locate the defendant
            includes (1) inquiries of postal authorities including inquiries
            pursuant to the Freedom of Information Act, 39 C.F.R. Part
            265, (2) inquiries of relatives, neighbors, friends, and
            employers of the defendant, (3) examinations of local
            telephone directories, courthouse records, voter registration



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         records, local tax records, and motor vehicle records, and
         (4) a reasonable internet search.

Pa.R.C.P. No. 430(a).

      Thus, before seeking to effect service under Rule 430(a), a plaintiff must

make a good faith effort to locate the defendant, and the Rule 430(a) affidavit

must detail the plaintiff’s good faith efforts. This is so because due process

requires notice. PNC Bank, N.A., 929 A.2d at 230. “The adequacy of this

notice, as applied to substituted service, depends upon whether it is

reasonably calculated to give the party actual notice of the pending litigation

and an opportunity to be heard.” Id.

      BNYM filed an affidavit indicating that Appellant’s last known address,

per credit bureau and local tax office inquiries, was 319-321 South Third

Street, Philadelphia. Affidavit in Support of Motion for Alternative Service,

2/23/16, at Exhibit D.    Attempts to serve Appellant at that address were

unsuccessful, and the property appeared to be vacant.              Id.    BNYM

unsuccessfully attempted to contact Appellant at six telephone numbers

garnered from credit bureau listings. Id. BNYM unsuccessfully attempted to

serve Appellant at an address under her name in Pearl River, New York, and

BNYM was unsuccessful in contacting Appellant’s nearest neighbors in New

York. Id.

      Despite the foregoing, Appellant argues BNYM’s efforts fell short

because BNYM failed to contact Appellant’s attorney of record in the 323

Action. The law is clear, however, that “[a] lawyer has no authority to accept

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service of process on behalf of his client in a suit other than that for which he

was employed.”     U.K. LaSalle, Inc. v. Lawless, 618 A.2d 447, 450 (Pa.

Super. 1992). Appellant never produced any evidence that her counsel in the

323 Action had authority to accept service. The same attorney now represents

Appellant in this action. At the hearing on the petition to open, counsel stated

his belief that BNYM was required to take all proper steps to effect valid service

of the 319 Action, regardless of the pending 323 Action. N.T. Hearing, 1/6/17,

at 18-19. Appellant did not appear personally at the hearing, and counsel

gave no indication that he would have accepted or facilitated service of this

action.

      Appellant also argues that BNYM should have asked the trial court to

order service of the 319 Action upon counsel for the 323 Action, in accord with

Rule 410(c)(4). See Pa.R.C.P. No. 410(c)(4) (“If service is made pursuant to

an order of court under Rule 430(a) the court shall direct one or more of the

following methods of service: […] such other methods, if any, as the court

deems appropriate to give notice to the defendant.”). Appellant, however,

cites no law for the extraordinary proposition that Rule 410(c)(4) permits a

trial court to order an attorney to accept service on behalf of a client, without

the client’s authority, in any matter pending against that client.

      In summary, Appellant argues that BNYM failed to act in good faith

under Rule 430(a) because BNYM failed to contact counsel for the 323 Action,

even though, pursuant to Lawless, counsel for the 323 Action could not have


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accepted service of the 319 Action without Appellant’s authority. The record

fails to establish that counsel had such authority.       Thus, it appears that

providing notice of the present action to counsel in the 323 Action would have

been fruitless. Appellant has provided no legal or factual basis to support a

different conclusion.     The law required BNYM to make efforts reasonably

calculated to give Appellant notice of the 319 Action. PNC Bank, N.A., 929

A.2d at 230. The law does not require efforts that are obviously futile. We

discern no abuse of discretion in the trial court’s decision to deny Appellant’s

petition to open the default judgment.

        Order affirmed.

        Judge Colins did not participate in the consideration or decision of this

case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/19




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