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HomeMy WebLinkAbout98-4502 civilPP&L, Inc., Plaintiff/Respondent VS. LISA N. MACKINNON, Defendant/Petitioner IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 98-4502 CIVIL CIVIL ACTION- LAW IN RE: PETITION TO STRIKE JUDGMENT BEFORE BAYLEY AND HESS, J.J. AND NOW, this ORDER day of June, 2001, the petition of Lisa M. MacKinnon to strike a judgment in the captioned matter is GRANTED. BY THE Augustus C. Martin, Esquire For the Plaintiff/Respondent Robert J. Mulderig, Esquire For the Defendant/Petitioner :rlm Edgar B. ,/ PP&L, Inc., · Plaintiff/Respondent · · vs. · 98-4502 CIVIL · LISA N. MACKINNON, · CIVIL ACTION - LAW De fe ndant/P e ti ti o ner · IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE' PETITION TO STRIKE JUDGMENT BEFORE BAYLEY AND HESS, J.J. OPINION AND ORDER Before the court is a petition to strike a judgment. The petition relates that on or about August 1997, the petitioner was involved in an accident that damaged a street light pole owned the respondent, PP&L, Inc. It further relates that on April 17, 1998, a complaint was filed by the respondent against the petitioner with District Justice Susan K. Day. Service of process was made upon a Sean MacKinnon with a relationship listed as "father," on May 7, 1998, at 199 Old York Road, New Cumberland, Pennsylvania. The return of service, attached to the petition as an exhibit, was signed by a constable. The petition to strike goes on to relate that the petitioner's father is Frank D. MacKinnon, not Sean MacKinnon, and that the petitioner never received notice or service of process with regard to the complaint filed at the district justice's officer. Service of process is a mechanism by which a court obtains jurisdiction and, therefore, the rules concerning service of process must be strictly followed. Without valid service, a court · lacks personal jurisdiction over the defendant and is powerless to enter judgment against him or her. U.K. LaSalle, Inc. v. Lawless. 421 Pa. Super. 496, 618 A.2d 447 (1992). Because this is a motion to strike, our inquiry concerning the sufficiency of the return of service is limited to the face of the record. Thus, many of the factual allegations made in the 98-4502 CIVIL petition to strike are inapposite to our resolution to the matter. They are, instead, more properly addressed to a petition to open the judgment. As noted in Cintis Corp. v. Lee's Cleaning Service, 78 A.2d 915, 919 (Pa. 1997), "if a party seeks to challenge the truth of factual averments in the record at the time judgment was entered, then the party should pursue a petition to open the judgment, not a petition to strike the judgment." In order to be ultimately successful in a petition to open, it must be shown' (1) the petition to open must be promptly filed; (2) the failure to appear or file a timely answer must be excused; and (3) the party seeking to open the judgment must show a meritorious defenses. Id.__:. These criteria for opening a judgment were discussed in the petitioner's brief. The discussion is, however, to no avail as the petitioner has filed a petition to strike and not to open. Were our inquiry to end here, it is clear that Ms. MacKinnon would not be entitled to relief. We are satisfied, however, that further review of this matter on the face of the record reveals that service was not proper. The rule governing service of a complaint in district justice matters is found at Pa.R.C.P.D.J. 308. That role provides, in pertinent part, that: Service of the complaint upon an individual defendant shall be made' · o o 2. by handing a copy: a. to an adult member of the defendant's family at his residence, but if no adult member of the family is found, then to an adult person in charge of such residence, ... In this case, in an apparent reference to the residence of the defendant at 145 Appalachian Drive, Carlisle, the return of service recites "house vacant, defendants moved about one moth [sic] ago." The return then goes on to indicate that service Was made to a "Sean N. MacKinnon" 98-4502 CIVIL described as the "father" of the defendant and indicates that service was made at 199 Old York Road, New Cumberland, Pennsylvania 17070. There is no indication in the retum that the Old York Road address was the address of the defendant. In Shelter v. Woods, 32 D.&C.3d 128 (1984), a complaint was served, albeit at the residence of the defendant, upon a person described as a "grandmother." In Shelter, the court concluded that because the retum did not describe the "grandmother" as a member of the defendant's family, service was deemed improper and the judgment was set aside. In the matter sub judice, the problem with the constable' s return is even more acute. Here, while Sean MacKinnon is referred to as the defendant's "father," nowhere is there an indication that 199 Old York Road, New Cumberland, is the residence of the defendant. There is no presumption as to the validity of service and the retum itself is required to set forth service in conformance with the rules. Id. at 133 citing Neff v. Tribune Printing Co., 421 Pa. 122, 218 A.2d 756 (1966). We are satisfied that the return in this case is defective as it does not reflect that service was made at the residence of the defendant. Accordingly, the petitioner is entitled to the relief of having the judgment stricken. ORDER AND NOW, this day of June, 2001, the petition of Lisa M. MacKinnon to strike a judgment in the captioned matter is GRANTED. Edgar B .ey, J. 98-4502 CIVIL Robert J. Mulderig, Esquire For the Petitioner August C. Martin, Esquire For the Respondent :rlm