J-S42014-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SAMUEL JEFF KENNEDY,                             IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

K&J CONSTRUCTION AND LANDSCAPING
LLC AND NATHAN HILL,

                            Appellants               No. 1223 WDA 2015


                   Appeal from the Order Dated July 10, 2015
              In the Court of Common Pleas of Washington County
                      Civil Division at No(s): No. 2014-487


BEFORE: SHOGAN, OTT, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                           FILED AUGUST 25, 2016

       K&J Construction and Landscaping, LLC and Nathan Hill (collectively,

“Appellants”) appeal the July 10, 2015 order denying their petition to strike

and/or open a default judgment entered in favor of Appellee, Samuel Jeff

Kennedy (“Kennedy”). The issue for review concerns Appellants’ claim that

they were never served with the complaint. We affirm.

       The trial court recounted the procedural history as follows:

              On January 24, 2014, [Kennedy] commenced this action
       by filing a Praecipe for Summons and Summons in Civil Action.
       On February 11, 2014, a sheriff served Vanessa Hill, the wife of
       [Appellant] Nathan Hill, with said praecipe at the couple’s home.
       [Kennedy] filed a Proof of Service indicating that both
       [Appellants] were duly served by the Fayette County Sheriff’s
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S42014-16


     Department. Eight months later, on October 3, 2014, [Kennedy]
     filed a Complaint, alleging breach of contract, as well as
     violations of the Home Improvement Consumer Protection Act
     (73 P.S. 517.1 §§ et seq) and the Unfair Trade Practice and
     Consumer Protection Law (73 P.S. 101.1 §§ et seq). Complaint.
     On November 21, 2014, [Kennedy] filed a Proof of Service, in
     which [Kennedy’s] counsel, James R. Jeffries, Esq., represented
     that he had served the Complaint on [Appellants] by U.S.
     Certified Mail Return Receipt Request, and U.S. Regular Mail.
     Proof of Service.    According to Attorney Jeffries, the U.S.
     Certified Mail came back unclaimed, but the U.S. Regular Mail
     had not been returned after 14 days. Id. Approximately three
     weeks later, [Kennedy] filed a Praecipe for Default Judgment
     Pursuant to Pa.R.C.P. 1037(b).

           On April 28, 2015, [Appellants] filed a Petition to Strike
     and/or Open Judgment, and a hearing on the matter was held on
     June 1, 2015. At said hearing, the following discourse took place
     between the Court and [Appellants’] attorney, John M. Zeglen,
     Esq.

          MR. ZEGLEN: Do you want testimony, Your Honor,
          or do you want just argument?

          THE COURT: I don’t know if any of the facts are in
          dispute. I don’t think so. Just argument is fine.

          MR. ZEGLEN: And I think you’re right, based on the
          answer that he filed and so forth.

     Hearing transcript 2:13-19. Thus, no evidence was proffered.
     On July 10, 2015, the Court denied [Appellants’] petition, and
     reasoned:

          Service [of the writ of summons] was proper
          pursuant to Pa.R.C.P. 400 and Pa.R.C.P. 402, and
          [Appellants] became parties to this litigation when
          this service was affected. Accordingly, [Kennedy]
          was permitted to mail the subsequent complaint to
          [Appellants] Pa.R.C.P. 440.    [Kennedy’s] counsel
          indicated that a copy of the complaint sent by U.S.
          Regular mail had not been returned after 14 days,
          and thus it is presumed that the complaint was
          received by [Appellants]. Breza v. Don Farr Moving

                                   -2-
J-S42014-16


            & Storage Co., 828 A.2d 1131, 1135 (Pa. Super.
            2003) (The mailbox rule raises a rebuttable
            presumption that the mailed item was received).
            Thus, service was proper, no fatal defect, and the
            Petition to Strike is DENIED. As to the Petition to
            Open, the Court finds that the [Appellants] did not
            act promptly in filing this Petition and no equitable
            reason to open the judgment is apparent, and
            Petition to Open is DENIED.

      Court Order of July 10, 2015.        [Appellants] timely filed this
      appeal.

Trial Court Opinion, 12/16/15, at 1–2.

      Appellants raise the following issues on appeal:

      I. Whether the [Trial] Court Improperly Applied the Mailbox
      Rule?

      II. Whether the Court Violated the Appellants’ Due Process
      Rights?

      III. Whether the Trial Court Erred in Denying Appellants’ Petition
      to Strike Default Judgment?

Appellants’ Brief at 3. Our standard of review is described as two-fold:

             “A petition to strike a default judgment and a petition to
      open a default judgment are two distinct remedies, which are
      generally not interchangeable.” Williams v. Wade, 704 A.2d
      132, 134 (Pa. Super. 1997) (quoting U.K. LaSalle, Inc. v.
      Lawless, 421 Pa. Super. 496, 618 A.2d 447, 449 (1992)). A
      petition to open default judgment is discretionary; to reverse, we
      must find either a manifest abuse of discretion or an error of law
      by the trial court. Bullard, 839 A.2d at 386 (citing Penn–Delco
      School Dist. v. Bell Atlantic–Pa, Inc., 745 A.2d 14, 17 (Pa.
      Super. 1999)). Conversely, “[a] petition to strike a judgment
      raises a question of law and relief thereon will only be granted if
      a fatal defect appears on the face of the record.”           RAIT
      Partnership, LP v. E Pointe Properties I, Ltd., 957 A.2d
      1275, 1277 (Pa. Super. 2008) (citing Knickerbocker Russell
      Co., Inc. v. Crawford, 936 A.2d 1145, 1146 (Pa. Super.
      2007)).

                                     -3-
J-S42014-16




Oswald v. WB Public Square Associates, LLC, 80 A.3d 790, 794 n.3 (Pa.

Super. 2013).

       Appellants first contend that the trial court incorrectly relied upon the

mailbox rule in denying Appellants’ motion to strike.1         The mailbox rule

provides that:

       depositing in the post office a properly addressed, prepaid letter
       raises a natural presumption, founded in common experience,
       that it reached its destination by due course of mail. Jenson v.
       McCorkell, 154 Pa. 323, 325, 26 A. 366, 367 (Pa. 1893)
       (citation omitted). [ . . . ] Thus, [e]vidence that a letter has
       been mailed will ordinarily be sufficient to permit a jury to find
       that the letter was in fact received by the party to whom it was
       addressed. Shafer v. A.I.T.S., Inc., 285 Pa.Super. 490, 428
       A.2d 152, 156 (Pa. Super. 1981) (citations omitted).

Szymanski v. Dotey, 52 A.3d 289, 292 (Pa. Super. 2012) (internal

quotation marks omitted).          However, “evidence of actual mailing is not

required.”    Id. (quoting Commonwealth Dep't of Transp. v. Brayman

Constr. Corp., 513 A.2d 562, 566 (Pa. Cmwlth. 1986)).              “Documentary

evidence of mailing or testimony from the author that a document was

mailed may establish the presumption of receipt.” Szymanski, 52 A.3d at

293 (citing Commonwealth Dep't of Transp. v. Grasse, 606 A.2d 544,

546 (Pa. Cmwlth. 1992)).           In particular, “introducing testimony that the

notice was mailed suffices to establish the mailbox rule’s presumption of
____________________________________________


1
  Appellants do not offer any particularized argument on the trial court’s
denial of the petition to open the judgment.



                                           -4-
J-S42014-16


receipt.”   Szymanski, 52 A.3d at 293 (citing Meierdierck v. Miller, 147

A.2d 406, 408 (Pa. 1959)).

      Conversely, “the presumption under the mailbox rule is not nullified

solely by testimony denying receipt of the item mailed.”            Murphy v.

Murphy, 988 A.2d 703, 709 (Pa. Super. 2010) (quoting Breza v. Don Farr

Moving & Storage Co., 828 A.2d 1131, 1135 (Pa. Super. 2003)). Instead,

the presumption of receipt under the mailbox rule may be nullified through

the production of evidence demonstrating that the mailing was not in fact

received.   Breza, 828 A.2d at 1135 (citing Donegal Mutual Insurance

Company v. Insurance Department, 719 A.2d 825 (Pa. Cmwlth. 1998)

(finding that merely asserting that the letter was not received, without

corroboration, is insufficient to overcome the presumption of receipt)).

      The trial court offered the following rationale for applying the mailbox

rule herein:

            [Appellants] complain that the Court improperly applied
      the mailbox rule, a likely reference to the Court’s citation of
      Breza v. Don Farr Moving & Storage Co. See Court Order of July
      10, 2015 (“[Kennedy’s] counsel indicated that a copy of the
      complaint sent by U.S. Regular mail had not been returned after
      14 days, and thus it is presumed that the complaint was
      received by [Appellants]”). [Appellants] do not explain their
      theory of misapplication, but the record is sufficient to satisfy the
      rule, which states that “proof of a mailing raises a rebuttable
      presumption that the mailed item was received.” Samaras v.
      Hartwick, 698 A.2d 71, 73 (Pa. Super. 1997) (internal citations
      omitted). Although [Kennedy] did not provide proof of mailing in
      the form of testimony, as is common in mailbox rule cases,
      [Appellants] agreed that an evidentiary hearing was
      unnecessary, because no facts were in dispute.               Hearing
      transcript 2:13-19. Thus, [Kennedy] rightly enjoyed the rule’s

                                      -5-
J-S42014-16


      rebuttable presumption, which [Appellants] did not even attempt
      to overcome. See Donegal Mut. Ins. Co. v. Insurance Dept., 719
      A.2d 825, 827 (Pa. Cmwlth. 1998) (“Once this presumption is
      established, the party alleging that it did not receive the letter
      has the burden of establishing such, and merely asserting that
      the letter was not received, without corroboration, is insufficient
      to overcome the presumption of receipt.”).

Trial Court Opinion, 12/16/15, at 3–4.

      Appellants argue that Kennedy is not entitled to the mailbox rule’s

rebuttable presumption of receipt because he did not offer testimony

providing proof of mailing. Appellants also contend that if the mailbox rule’s

presumption of receipt does apply, they overcame the presumption by

denying receipt of the complaint in their petition to strike and/or open. In

addition, they aver that non-receipt was corroborated by the fact that both

Appellants claimed they did not receive the complaint. We are not convinced

by these assertions.

      First, the trial court correctly concluded that the fact of mailing was

established when Appellants agreed at the hearing on the petition’s merits

that there were no facts in dispute. N.T., 6/1/15, at 2; Trial Court Opinion,

12/16/15, at 4. Additionally, the certified record includes a Proof of Service

in which Kennedy’s counsel represented that he had served the complaint on

Appellants by U.S. Certified Mail Return Receipt Request, and U.S. Regular

Mail. The Proof of Service further informed that the U.S. Certified Mail came

back unclaimed, but the U.S. Regular Mail had not been returned after

fourteen days. Proof of Service, 11/21/10, Unnumbered Docket Entry. This


                                     -6-
J-S42014-16


entry in the case docket provides documentary evidence that the complaint

was mailed to Appellants; therefore, the mailbox rule applies and the

presumption of receipt has been met. See Szymanski, 52 A.3d at 292.

      Appellants’ companion argument that they overcame the presumption

of receipt likewise does not merit relief. Appellants’ position that non-receipt

was undisputed because they averred so in their petition to strike is

precisely what the mailbox rule precludes. Mere denial does not, by itself,

serve to rebut the presumption that a mailed item was not received. Breza,

828 A.2d at 1135. Also untenable is Appellants’ claim that the fact of non-

receipt was corroborated by each Appellant.              Appellants cite Donegal

Mutual Insurance, 719 A.2d at 827, for the proposition that the

presumption of receipt can be nullified where the fact of non-receipt is

verified by another. Appellant omits, however, the Commonwealth Court’s

recognition   that   the   corroborative   testimonial    evidence     in   Donegal

originated from “a disinterested third party.”     Id. at 827.       In this matter,

Appellants’ theory that Appellant K&J Construction, a business entity and a

party to this lawsuit, has the legal capacity to factually corroborate Appellant

Hill’s claim that the complaint was never received is not legally cognizable.

Accord Yocabet v. UPMC Presbyterian, 119 A.3d 1012, 1027–1028 (Pa.

Super. 2015) (“A corporation is a creature of legal fiction, which can act or

‘speak’ only through its officers, directors, or other agents.”). We therefore




                                      -7-
J-S42014-16


conclude that Appellants are unable to overcome the mailbox rule’s

presumption of receipt of the complaint.

      Appellants’ next argument is that the trial court violated their due

process rights when it denied them an opportunity to present testimony at

the hearing on the merits of their petition to strike and/or open the default

judgment. We agree with the trial court’s characterization of this allegation

as “disingenuous” in light of the fact that Appellants agreed at the outset of

the hearing that no facts were in dispute and agreed with the trial court to

proceed with argument only.       Trial Court Opinion, 12/16/15, at 4; N.T.,

6/1/15, at 2. No further discussion is required.

      Appellants’ final contention is that the trial court erred in denying its

petition to strike the judgment because they did not receive the complaint

by either certified or regular mail. While at first reading, this allegation of

error appears to be a re-styling of their mailbox rule argument, Appellants’

citation to Clymire v. McKivitz, 504 A.2d 937 (Pa. Super. 1986), in support

of their position indicates that they are asserting that the trial court failed to

consider the appropriate Rules of Civil Procedure with regard to service.      In

Clymire, this Court decided that the record therein was fatally defective

partially because the record did not disclose that the complaint was ever

served upon McKivitz. Id. at 939.        Here, we have already decided that

application of the mailbox rule created a presumption that Appellants

received the complaint. This conclusion itself distinguishes Clymire wherein


                                      -8-
J-S42014-16


there was no evidence of an attempt at service. Additionally, the trial court

correctly explained why Clymire is not helpful to Appellants’ argument:

     The Court relied on Pa.R.C.P. 440, which allows for service by
     mail of all legal papers other than original process. Pa.R.C.P.
     440(a)(1)(i). Despite [Appellants’] contention to the contrary,
     this case’s original process was the Praecipe for Summons and
     Summons in Civil Action, which was properly served by a sheriff
     in February 2014.       Thus, the Complaint in this case was
     subsequent to original process, and was properly mailed under
     Rule 440.

            At the June 1, 2015, hearing, [Appellants] argued that
     Clymire v. McKivitz, 504 A.2d 937 (Pa. Super. 1986) “indicate[s]
     that when the complaint is not served on the defendant, that is a
     basis for striking a default judgment.” Hearing transcript 5:24-
     6:1. However, Clymire actually supports Plaintiff’s position. In
     Clymire, the suit was initiated against three defendants via writ
     of summons, and a default judgment was entered against one
     such defendant, David McKivitz, who did not answer the
     complaint. Id. at 937-938. Mr. McKivitz ultimately succeeded in
     striking the default judgment, as the Superior Court held “[t]he
     record in this case does not disclose that the complaint was ever
     served upon David McKivitz.”        Id. at 939.    Crucially, this
     sentence in the Superior Court’s opinion was followed by a
     footnote, which read:

           The manner of service is established by Pa.R.C.P.
           1027 as follows:

               A party filing a pleading, other than a complaint
               by which an action is commenced or a complaint
               used as alternative process as provided by Rule
               1010(e), shall forthwith serve it on every other
               party

                 (1) by leaving a copy for or mailing a copy to
                 him at        the     address endorsed on an
                 appearance or prior pleading of the party, but
                 if there is no such endorsement, then

                 (2) by leaving a copy for or mailing a copy to
                 him at the residence or place of business of the

                                    -9-
J-S42014-16


                  party or the address of the party’s attorney of
                  record, but if there is no such residence or
                  place of business and no attorney of record,
                  then

                  (3) by leaving a copy for him with the
                  prothonotary of the court in which the action
                  was commenced for the use of the other party.
                  (emphasis added).

      Id. at 940 n.3. Rule 1027 was replaced by Rule 440, and thus
      Clymire acknowledges that when a suit has been initiated by
      summons, service of the subsequent complaint is governed by
      Rule 440.

Trial Court Opinion, 12/16/15, at 4–5.        Accordingly, Appellants’ claim that

they were not properly served notice is without merit.         See SmithKline

Beecham Corp. v. Stop Huntingdon Animal Cruelty USA, 959 A.2d 352,

360 (Pa. Super. 2008) (“Pennsylvania Rule of Civil Procedure 440(a)(2)(i)

states that, where an individual is not represented by an attorney [. . .]

‘service shall be made by ... leaving a copy for the party at ... the residence

or place of business of the party.’”).

      Order affirmed.




                                     - 10 -
J-S42014-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/25/2016




                          - 11 -
