J-A30039-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SANDRA ROBERTS NAVARRA, BY HER :               IN THE SUPERIOR COURT OF
AGENT UNDER A DURABLE POWER OF :                     PENNSYLVANIA
ATTORNEY, CHRYSTIE CLARKE        :
                                 :
                 v.              :
                                 :
RICHARD E. NAVARRA AND PAULA R. :
NAVARRA, AND NAVARRA INSURANCE :
ASSOCIATES, INC.                 :
                                 :
APPEAL OF: PAULA R. NAVARRA, NOW :
KNOWN AS PAULA R. STAPP          :           No. 967 WDA 2018

                 Appeal from the Order Entered June 11, 2018
              in the Court of Common Pleas of Lawrence County
                  Civil Division at No(s): 10282 of 2013, C.A.

BEFORE: SHOGAN, J., KUNSELMAN, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                      FILED APRIL 9, 2019

     Paula R. Navarra, now known as Paula R. Stapp (Paula) appeals from

the order entered on June 11, 2018, which denied her petition to open or

strike a judgment entered against herself, Richard E. Navarra (Richard), and

Navarra Insurance Associates, Inc. (collectively, Defendants). Upon review,

we affirm.

     This case involves a dispute between family members regarding a loan

guarantee. By way of background, Navarra Insurance was owned by Paula

and Richard, who were previously married. Paula and Richard separated on

November 19, 2012, when Paula moved from Pennsylvania to Dallas, Georgia.



* Retired Senior Judge assigned to the Superior Court.
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While living together in Pennsylvania, Paula and Richard resided at 711

Trillium Court in Wexford, Pennsylvania, which was also listed as the address

of Navarra Insurance at all times relevant to this matter.

      Richard’s father, Fred Navarra (Fred), and his step-mother, Sandra

Roberts Navarra (Sandra), personally guaranteed a loan taken by Navarra

Insurance from First Commonwealth Bank (the Bank).           Navarra Insurance

defaulted on the loan, and the Bank applied against the balance of the loan a

$200,000 certificate of deposit owned by Fred and Sandra but held by the

Bank as security. The Bank also obtained judgment of $86,093.14 against

Fred and Sandra. Thereafter, the Bank agreed to accept $55,000 from Fred

and Sandra in satisfaction of the judgment. Thus, on March 20, 2013, Sandra,

the guarantor,1 filed a complaint in the Court of Common Pleas of Lawrence

County to recover $255,000 from Defendants, the obligors.

      The Allegheny County Sheriff’s Department was charged with serving

this complaint on Defendants. On April 5, 2013, the sheriff filed a return of

service, which set forth that Richard was served personally on March 26, 2013,

at 711 Trillium Court; that Paula’s complaint was served on Richard as Paula’s

husband on the same date at the same location; and that Richard accepted

service on behalf of Navarra Insurance at the same address. See Return of

Service, 4/5/2013.




1 Fred died in 2012 prior to Sandra’s filing of the complaint. His estate is not
a party to this action.
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      On April 19, 2013, Attorney Jonathan Solomon filed an answer and new

matter to the complaint on behalf of Defendants. On March 17, 2015, the trial

court granted Sandra’s motion for judgment on the pleadings against

Defendants, and judgment was entered in favor of Sandra and against

Defendants for $255,000 (March 2015 judgment).           On April 16, 2015,

Defendants timely filed a notice of appeal to this Court, which was docketed

at 620 WDA 2015 (Defendants’ appeal).       Subsequently, on May 19, 2015,

Paula, through Attorney Stephanie Kramer, presented a petition to strike the

judgment in the Court of Common Pleas. On June 2, 2015, the trial court

entered an order denying Paula’s motion, concluding it lacked jurisdiction due

to the fact that Defendants’ appeal was still pending. See Pa.R.A.P. 1701(a).

On June 22, 2015, Paula filed a notice of appeal from that order, which was

docketed at 978 WDA 2015 (Paula’s appeal).

      On May 20, 2016, this Court issued a memorandum in Paula’s appeal,

affirming the order denying Paula’s petition to strike judgment and agreeing

with the trial court that it lacked jurisdiction pursuant to Pa.R.A.P. 1701(a).

Navarra v. Navarra, 151 A.3d 1155 (Pa. Super. 2016) (unpublished

memorandum).      On July 8, 2016, this Court issued a memorandum in

Defendants’ appeal affirming a modified March 2015 judgment in favor of




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Sandra and against Defendants.2 Navarra v. Navarra, 154 A.3d 848 (Pa.

Super. 2016) (unpublished memorandum).

     On January 9, 2018, Paula filed the petition at issue in this case,

requesting, once again, that the trial court strike or open the modified March

2015 judgment against her only. The trial court issued a rule to show cause,

and Sandra filed a response. A hearing was held on February 27, 2018.

     The hearing began with stipulations, which included the fact that at the

time of service of the complaint, the address of Navarra Insurance was 711

Trillium Court. N.T., 2/27/018, at 5. At the hearing, Paula testified that on

November 19, 2012, she moved to Dallas, Georgia. N.T., 2/27/2018, at 11.

She “filed a change of address with the U.S. Postal Service” on November 21,

2012. Id. She moved to Georgia to take a job with Wells Fargo Insurance

Services, which she began on November 30, 2012. She testified that up until

that time, she worked for Navarra Insurance as the president and senior

account executive. Id. at 13. According to Paula, once she moved to Georgia,

she was “no longer working actively with Navarra Insurance.” Id. at 14.




2The March 2015 judgment was for $255,000 jointly and severally against
Defendants. However, this Court modified the judgment such that the
$255,000 was joint and several against Navarra Insurance, and judgment for
half, or $127,500, was entered against Richard and Paula each as individuals.
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         On June 11, 2018, the trial court denied Paula’s petition. Paula timely

filed a notice of appeal.3 Both Paula and the trial court complied with Pa.R.A.P.

1925.

         On appeal, Paula contends the trial court erred or abused its discretion

in denying her petition to strike or open the judgment. According to Paula,

she never received proper service of the complaint, and therefore the trial

court was without jurisdiction to enter judgment against her. See Paula’s Brief

at 18.

                A court must have personal jurisdiction over a party to enter
         a judgment against it. [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. Sharp v. Valley Forge Med. Ctr. & Heart
         Hosp., Inc., [] 221 A.2d 185, 187 ([Pa.] 1966). See also Cintas
         Corp. v. Lee’s Cleaning Servs., Inc., [] 672 A.2d 1371 ([Pa.
         Super.] 1996) (striking default judgment for lack of jurisdiction
         when return of service was filed by plaintiff’s attorney instead of
         process server); U.K. LaSalle, Inc. v. Lawless, [] 618 A.2d 447
         ([Pa. Super.] 1992) (striking default judgment for lack of
         jurisdiction when plaintiff served attorney who represented
         defendant in a different matter); Mischenko v. Gowton, [] 453
         A.2d 658 ([Pa. Super.] 1982) (granting petition to open default
         judgment when defendant has actual notice of lawsuit but lacks
         proper service). “In the absence of valid service, a court lacks
         personal jurisdiction over a party and is powerless to enter
         judgment against him.” U.K. LaSalle[, Inc.], [] 618 A.2d at 449.
         Moreover, this Court has held that a judgment may be attacked
         for lack of jurisdiction at any time. Cintas, [] 672 A.2d at 1373.




3 An order denying a petition to strike or open a judgment is appealable as an
interlocutory order appealable as of right. See Pa.R.A.P. 311(a)(1).


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J-A30039-18


Dubrey v. Izaguirre, 685 A.2d 1391, 1393 (Pa. Super. 1996) (some citations

and internal quotation marks omitted).

      “A petition to strike a default judgment and a petition to open a default

judgment are two distinct remedies, which are generally not interchangeable.”

U.K. LaSalle, Inc., 618 A.2d at 449.

            A petition to strike a judgment does not involve the
      discretion of the court. Id. Instead, it acts as a demurrer to the
      record and, as such, may be granted only when “a fatal defect in
      the judgment appears on the face of the record.” Id. Therefore,
      to grant a petition to strike a judgment based on improper service,
      the court must be unable to find proper service, reviewing only
      the record as it existed when judgment was entered.

Dubrey, 685 A.2d at 1393.

             A petition to open a default judgment is an appeal to the
      court’s equitable powers, and the trial court’s disposition of the
      petition will not be disturbed absent an error of law or a manifest
      abuse of discretion. In deciding whether to open the judgment,
      three factors should be considered and must coalesce: (1) the
      petition to open must be promptly filed; (2) the failure to enter an
      appearance or file a timely answer must be excused; and (3) the
      party seeking to open the judgment must exhibit a meritorious
      defense.

            We need not, however, engage in the above analysis if the
      party seeking to open the judgment has not received valid service
      or notice of the proceedings. Under those particular
      circumstances, the court has no jurisdiction over the party and is
      powerless to enter judgment.

Deer Park Lumber, Inc. v. Major, 559 A.2d 941, 943 (Pa. Super. 1989)

(citations omitted).

      In this case, although Paula sought primarily to strike the judgment,

and only to open it as an alternative, the trial court could not have ruled upon


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her petition to strike without looking at facts outside the record as it stood at

the time the March 2015 judgment was entered. In denying Paula’s petition,

the trial court considered the facts established during Paula’s testimony at the

hearing on the petition to open or strike the judgment. Specifically, the trial

court denied Paula’s petition based upon its finding that Paula was the

president of Navarra Insurance and service was effectuated on her personally

because process was served at her “office or usual place of business” pursuant

to Pa.R.C.P. 402(a)(2)(iii). See Trial Court Opinion, 7/11/2018, at 9. Thus,

we evaluate this case as an appeal from an order denying a petition to open

the judgment, which we evaluate for an error of law or abuse of discretion.

See Deer Park Lumber, Inc., 559 A.2d at 943.

      We now consider Paula’s argument that service was improper. See

Paula’s Brief at 7-16. Service of process is governed by Pa.R.C.P. 402, and

the following subsections are applicable.

      (a) Original process may be served

            (1) by handing a copy to the defendant; or

            (2) by handing a copy

                 (i) at the residence of the defendant to an adult
                 member of the family with whom he resides; but if no
                 adult member of the family is found, then to an adult
                 person in charge of such residence; or

                 (ii) at the residence of the defendant to the clerk or
                 manager of the hotel, inn, apartment house, boarding
                 house or other place of lodging at which he resides; or



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J-A30039-18


                 (iii) at any office or usual place of business of the
                 defendant to his agent or to the person for the time
                 being in charge thereof.

Pa.R.C.P. 402.

      On appeal, Paula contends that such service was ineffective because

even though she was listed as the president of Navarra Insurance, her “usual

place of business” was at Wells Fargo, where she was employed at the time.

Paula’s Brief at 13-14. She argues that because she testified that she was no

longer working actively at Navarra Insurance, it was no longer her office or

usual place of business. Id.

      “The reference to an office or usual place of business of the defendant

requires that the defendant have more proprietary responsibility and control

over the business than that possessed by the average employee.” Slater v.

Goldberg, 402 A.2d 1073, 1074 (Pa. Super. 1979) (internal quotation marks

omitted). In this case, even though Paula was living in Georgia, she was the

president and an owner of Navarra Insurance.4 It is hard to imagine how one

could have more proprietary interest than that. Thus, while 711 Trillium Court




4 Although Paula claims that the trial court conducted its own internet search
to ascertain this information, see Paula’s Brief at 12-13, the document
referenced by the trial court was admitted into evidence at the hearing on the
petition to open or strike the judgment. See N.T., 2/27/018, at 6-7 (admitting
exhibits attached to Sandra’s answer to petition to strike or open judgment
by agreement of parties); Exhibit C to Sandra’s Answer to Petition to Strike
Judgment, or in the Alternative, to Open Judgement (12/22/2017 web search
for Navarra Insurance at Pennsylvania Department of State website indicating
Paula was president and treasurer of Navarra Insurance with an address of
711 Trillium Court).
                                    -8-
J-A30039-18


was not a “usual place of business” for Paula, it was certainly an office where

she had “proprietary responsibility and control over the business.” Slater, 402

A.2d at 1074. Accordingly, we hold that service on Paula at Navarra Insurance

was proper pursuant to Pa.R.C.P. 402(a)(2)(iii), and therefore the trial court

did not err in denying Paula’s petition to open the judgment.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/9/2019




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