Carter, D. v. Bar Game I

J-S38033-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DARYL CARTER : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

BAR GAME I, LLC; BARON D. :

HERDER; DEBORAH HERDER; LEVEL :

38 BAR & GRILL; RONG CHEN; D :

LINE SECURITY, LLC; JOHN DOE; :

AND ABC CORPORATION : No. 1338 EDA 2022

Appeal from the Order Entered April 14, 2022,

in the Court of Common Pleas of Philadelphia County,

Civil Division at No(s): 210702133.

BEFORE: KUNSELMAN, J., MURRAY, J., and SULLIVAN, J.

MEMORANDUM BY KUNSELMAN, J.: FILED FEBRUARY 7, 2023

This case arises from a 2019 shooting incident that occurred outside

Level 38 Bar & Grill in Philadelphia. The victim, Daryl Carter, sued Bar Game

I, LLC; Baron D. Herder; Deborah Herder; Level 38 Bar & Grill; Rong Chen; D

Line Security, LLC; John Doe; and ABC Corporation. Mr. Carter obtained

default judgments against Bar Game I, the Herders, Level 38, and Rong Chen

(“Judgment Debtors”). The Judgment Debtors appeal, as of right, from the

order denying their petition to strike or to open those default judgments. For

the reasons below, we partially reverse and partially affirm.

According to Mr. Carter’s complaint, filed on July 26, 2021, Level 38 Bar

& Grill is the operating name for Bar Game I, LLC, a restaurant and bar at

3800 Lancaster Ave. in Philadelphia. Baron and Deborah Herder are

“owner[s], principal[s], shareholder[s] and/or officer[s] of Bar Game I and

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Level 38 . . . .” (“the Bar”). Complaint at 3, ¶¶ 5, 6. Additionally, Rong Chen

is the Bar’s landlord.

In his lawsuit, Mr. Carter claimed that the Judgment Debtors failed to

provide reasonable security to protect him, a patron of Level 38, from John

Doe, a fellow patron. When Mr. Doe opened fire at other patrons, stray bullets

struck Mr. Carter as he departed the premises. See id. at 5-6. Mr. Carter

brought counts for negligence, negligent infliction of emotion distress, and

intentional infliction of emotional distress against the Judgment Debtors.

On July 28, 2021, Ms. Chen accepted service of Mr. Carter’s complaint.

On August 16, 2021, service also went “to AL BROWN as AUTHORIZED

AGENT, who stated they are authorized to accept service for [the Herders

and the Bar] at the address of: 3800 Lancaster Ave., Philadelphia, PA

19104 . . . .” Affidavits of Service to Level 38 Bar & Grill; Deborah Herder;

Baron Herder; and Bar Game I, LLC at 1 (emphasis in original).

No defendant responded to the complaint. Thus, on August 25, 2021,

Mr. Carter sent a notice of default to Ms. Chen, and, on September 8, 2021,

he sent notices of default to the Bar and the Herders at the 3800 Lancaster

Ave. address. The defendants still did not respond. Thus, the Office of Judicial

Records of Philadelphia County entered default judgments against the Bar (on

October 22, 2021) and against Ms. Chen and the Herders (on October 28,

2021).

Two months later, on January 2, 2022, Thomas W. Harrity, Esq. entered

his appearance on behalf of the Judgment Debtors. Nearly six weeks passed

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with no activity on the docket. Then, on February 10, 2022, the Judgment

Debtors filed the “Defendants, Bar Game I, LLC; Baron D. Herder; Deborah

Herder; Level 38 Bar & Grill; and Rong Chen’s Petition to Strike or Open

Default Judgments.”

In their petition, the Judgment Debtors only raised theories to support

striking of the default judgments. Moreover, they prayed for relief, as follows:

“WHEREFORE, defendants, Level 38 Bar & Grill and Bar Game I, LLC; Baron

D. Herder; and Deborah Herder, respectfully request that this court enter an

Order striking the default judgments entered.” Judgment Debtor’s Petition

to Strike the Default Judgments at 7 (emphasis added). Notably, Ms. Chen

was omitted from the prayer for relief and, thus, did not seek any relief in the

petition. The other Judgment Debtors asked the trial court to strike the default

judgments, not to open them. Specially, the Judgment Debtors alleged that

Al Brown was not their agent. See id. at 4, 6.

A Memorandum of Law accompanied the petition. It repeated the claim

that Al Brown was not an agent of the Bar or the Herders. They also presented

an argument that equity required the trial court to open the default judgments

against the Bar and the Herders.

The memorandum, unverified and unsupported by affidavit, relates that,

“On October 7, 2021, Mr. Herder retained the Offices of Eric D. Thomas, LLC

to enter an appearance in court to defend him, as well as Bar Game I, LLC;

Level 38 Bar & Grill; and his ex-wife, Deborah Herder . . . .” Memorandum of

Law at 4-5. Mr. Herder believed Mr. Thomas was a Pennsylvania lawyer who

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would take appropriate steps on his behalf; he therefore paid Mr. Thomas a

$3,000.00 retainer fee. See id.

After several weeks in which Mr. Herder heard nothing from Mr. Thomas,

another attorney investigated Eric D. Thomas, LLC. Internet searches

revealed that “Mr. Thomas was not a licensed attorney in the Commonwealth

Pennsylvania but instead appeared to be posing as an attorney.” Id. at 5.

After several attempts, “Mr. Herder reached Mr. Thomas and at that point

demanded that he immediately refund the retainer he paid or risk reporting

him to the appropriate authorities for misrepresentation and deception in

offering legal services.” Id. “In late November 2021, after recovering his

$3,000.00 retainer previously paid to Mr. Thomas, Mr. Herder sought the

services of a competent trial lawyer to defend him in this case.” Id.

Mr. Herder eventually located and retained Attorney Harrity to represent

the Bar, the Herders, and Ms. Chen. As mentioned above, Attorney Harrity

entered his appearance on January 2, 2022, and he filed a Petition to Strike

the Default Judgments about a month-and-a-half later.

Mr. Carter filed an Answer opposing the petition, and the Judgment

Debtors filed a reply. The trial court denied the petition on April 13, 2022.

This timely appeal followed.

The Judgment Debtors raise four appellate issues. They are:

1. Did the [trial] court err when it refused to strike the

default judgments entered against [the Herders] on

the ground that the returns of service on them are

defective on their faces?

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2. Did the [trial] court err when it refused to strike

default judgments entered on a complaint that asserts

a claim for failure to provide security outside the

premises, a cause of action that is not recognized in

this Commonwealth?

3. Did the [trial] court err when it refused to open the

default judgments[,] because service of process on

four of the defendants was defective?

4. [Did the trial court err when it refused to open the

default judgments,] because the defendants asserted

valid equitable grounds for the opening of the

judgments?

Judgment Debtors’ Brief at 7-8. We address each issue in turn.

1. Petition to Strike Based on Service to the Herders

First, the Herders contend that the trial court erred, as a matter of law,

by refusing to strike the default judgments against them. They argue that the

returns of service against them are facially defective, “because the returns of

service do not track the language of the applicable rule and are, therefore,

defective.” Id. at 18-19.

The Herders claim the affidavits of service needed to contain the phrase

“office or usual place of business” to comply with the language of Pennsylvania

Rule of Civil Procedure 402. In their view, the “failure of the affidavits of

service to identify 3800 Lancaster Avenue, Philadelphia, PA as [their] ‘office

or usual place of business’ is a fatal law, which should result in the judgments

being stricken.” Id. at 21. They assert this defect rendered the default

judgments void ab initio, because it deprived the trial court of in personam

jurisdiction over them.

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In his brief, Mr. Carter observes that the Herders raise this claim for the

first time on appeal. He also argues that the absence of the phrase “office or

usual place of business” from the affidavit of return of service is not a fatal

defect when read in context with the entire record. Mr. Carter believes the

allegations in his complaint sufficiently establish that 3800 Lancaster Ave. was

the Herders’ place of business.

Before reaching the merits of this issue, we must determine whether the

Herders have waived it by failing to raise the claim before the trial court. “The

issue of waiver presents a question of law, and, as such, our standard of

review is de novo, and our scope of review is plenary.” Trigg v. Children's

Hosp. of Pittsburgh of UPMC, 229 A.3d 260, 269 (Pa. 2020). Usually,

“[i]ssues not raised in the trial court are waived and cannot be raised for the

first time on appeal.” Pennsylvania Rule of Appellate Procedure 302(a).

Here, the Herders did not argue to the trial court that the affidavits of

service were facially defective due to the absence of the phrase “office or usual

place of business.” Instead, they asserted that Al Brown was not an agent,

manager, clerk, or other person in charge of the business. See Petition to

Strike at 6. Hence, we agree with Mr. Carter that the Herders are pursuing a

new legal theory on appeal.

Nevertheless, this Court has held that issue-preservation principles do

not apply to petitions to strike default judgments where, as here, appellants

claim that default judgments are void ab initio, because “a litigant may seek

to strike a void judgment at any time.” Oswald v. WB Pub. Square

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Assocs., LLC, 80 A.3d 790, 793 n.2 (Pa. Super. 2013) (collecting cases).

Consequently, we will address the merits of the Herders’ first issue regarding

their petition to strike the default judgment.

“An appeal regarding a petition to strike a default judgment is a

question of the Pennsylvania Rules of Civil Procedure” and presents “us with

questions of law.” Green Acres Rehab. & Nursing Ctr. v. Sullivan, 113

A.3d 1261, 1267 (2015). Therefore, “our standard of review is de novo, and

our scope of review is plenary.” Id. However, that plenary review is confined

to the facts of record when the default judgment was entered, because a

“petition to strike a judgment is a common-law proceeding which operates as

a demurrer to the record. A petition to strike a judgment may be granted only

for a fatal defect or irregularity appearing on the face of the record.” Id.

As such, “a petition to strike is not a chance to review the merits of the

allegations of a complaint. Rather, a petition to strike is aimed at defects that

affect the validity of the judgment and that entitle the petitioner, as a matter

of law, to relief.” Id. “A fatal defect on the face of the record denies the

[office of judicial records] the authority to enter judgment.” Id. Thus, if our

de novo review reveals a fatal defect that renders the default judgments void

ab initio, we must strike those judgments.

According to Pennsylvania Rule of Civil Procedure 405(b), the ”return of

service shall set forth the date, time, place and manner of service, identity of

the person served and any other facts necessary for the court to determine

whether proper service has been made.”

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Interpreting the previous rule, which was identical to Rule 405(b), the

Supreme Court of Pennsylvania held “it is essential that the return set forth

all of the necessary facts to show proper service.” Neff v. Trib. Printing Co.,

218 A.2d 756, 758 (Pa. 1966) (emphasis added). Thus, Mr. Carter’s assertion

that we may rely upon the allegations of his complaint to supplement the

sworn testimony of the process server in the affidavit of return of service is

wrong. Instead, our scope of review for purposes of Rule 405(b) is confined

to the return of service for each party.

To be effective, “[o]riginal process may be served . . . at any office or

usual place of business of the defendant to his agent or the person for the

time being in charge thereof.” Pa.R.C.P. 402(a)(2)(iii).

The affidavits at issue identified Al Brown as the Herders’ agent. Thus,

they satisfy the latter part of Rule 402(a)(2)(iii), but the affidavits did not

identify 3800 Lancaster Ave. as the “office or usual place of business” of either

Mr. Herder or Ms. Herder. See Affidavits of Service to Deborah Herder and

Baron Herder at 1. Therefore, on their face, the returns of service here do

not contain “all of the necessary facts to show proper service.” Neff, 218

A.2d at 758.

“The rules relating to service of process must be strictly followed, and

jurisdiction of the court over the person of the defendant is dependent upon

proper service having been made.” Id. at 757. “Without valid service, a

court lacks personal jurisdiction of a defendant and is powerless to enter

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judgment against him or her.” Cintas Corp. v. Lee's Cleaning Servs., Inc.,

700 A.2d 915, 917–18 (Pa. 1997).

Here, the process server offered no testimony in the four corners of his

affidavits to establish that 3800 Lancaster Ave. was a proper location where

the Herders could be served via an agent. Hence, we agree with the Herders

that their affidavits of service are facially defective, as a matter of law.

Strictly applying the service-of-process rules, we conclude the default

judgments against the Herders are fatally flawed, due to improper service.

Because there was improper service of process, the Court of Common Pleas

of Philadelphia County did not acquire personal jurisdiction over the Herders.

See Cintas Corp., supra. Thus, the office of judicial records lacked authority

to enter default judgments against the Herders; those default judgments were

void ab initio.

The first appellate issue is meritorious.

2. Petition to Strike Based on Negligence Cause of Action

For their second issue, the Judgment Debtors suggest that the trial court

erroneously refused to strike the default judgments, “because the complaint

purports to state a cause of action unrecognized in Pennsylvania law against

landowners for failure to provide security off their premises.” Judgment

Debtors’ Brief at 23. The Judgment Debtors’ fault the trial court for not

addressing this argument. See id. However, the record reveals that the fault

lies with the Judgment Debtors, not the trial court.

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The Judgment Debtors claim to have raised this issue below and cite to

the Memorandum of Law to support their assertion of issue preservation. See

id. They are incorrect. The page of the memorandum to which they cite is

their argument to open the default judgments, not their argument to strike

the default judgments. The Judgment Debtors never argued to strike the

judgments based on an unrecognized cause of action in either their petition

or their Memorandum of Law.

The fact that the Judgment Debtors discussed the validity of their cause

of action in their argument to open the default judgments did not apprise the

trial court that they were also seeking to strike the judgments on the same

basis. “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). The two types of

petitions have different tests and different scopes and standards of review.

Thus, the Judgment Debtors did not raise their second appellate issue in the

trial court.

Unlike their first appellate issue, regarding facially defective service of

process, the second appellate issue does not render the default judgments

void ab initio due to lack of in personam jurisdiction. Instead, the Judgment

Debtors ask us to strike the judgments, because a cause of action in Mr.

Carters’ complaint is supposedly not cognizable under Pennsylvania law.

In default-judgment cases where complaints failed to state cognizable

causes of action, our precedents do not indicate that the default judgments

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would be stricken, because they were void ab initio. Instead, this Court

subsequently voided those judgments, because “the interests of justice

require[d] that relief be afforded to [the] defendant . . . .” Rosser v. Cusani,

97 Pa. Super. 255, 258 (1929). In these instances, the default judgment was

voidable, rather than void ab initio. As a result, the exception to the issue-

preservation requirements in Oswald, supra, regarding void judgments, is

inapplicable when asking a court to strike a voidable judgment.

Therefore, Rule of Appellate Procedure 302(a), dictating that issues not

raised below are waived and may not be raised for the first time on appeal,

applies. Because the Judgment Debtors failed to raise it below, we dismiss

their second appellate issue as waived.

3. Petition to Open Based on Service of Process

Next, the Bar contends this Court should reverse the trial court’s refusal

to open the default judgments, because service of process against it was

defective.1 The Bar argues the trial court erred by failing to address its

allegations of defective service of process before proceeding to the merits of

its equitable argument to open the default judgment. See Judgment Debtors’

Brief at 29. The Bar urges us to vacate the order and remand for a hearing

on whether it authorized Al Brown to serve as its agent, in writing, pursuant

to Pa.R.C.P. 424.

____________________________________________

1 The Herders joined this appellate issue. However, because we determined

that the default judgments against must be stricken due to improper service,

we dismiss, as moot, this issue with respect to the Herders.

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As mentioned above, the Judgment Debtors entitled their petition as one

to strike or open the default judgments against them. However, the petition

never offered any grounds to open the default judgments, and the only relief

that it sought was to strike the default judgments. Also, in its Memorandum

of Law, the Bar did not argue to open the default judgment based upon

defective service, nor did it request a hearing on whether the Al Brown was

its authorized agent. Thus, the Bar never raised this issue in either its petition

or Memorandum of Law.

As the Supreme Court of Pennsylvania has said, “issue preservation is

foundational to proper appellate review.” In re F.C. III, 2 A.3d 1201, 1211

(Pa. 2010). “Requiring issues to be properly raised first in the trial court

ensures that trial judges have the opportunity to consider a potential appellate

issue and correct any error at the first available opportunity.” Trigg, 229 A.3d

at 269.

The Bar did not provide the trial court with an opportunity to rule upon

this basis for opening the record in the first instance. Nor did it ask the trial

court for an evidentiary hearing.

Thus, we dismiss the third appellate as waived. See Pa.R.A.P. 302(a).

4. Petition to Open Based on Equitable Principals

For their fourth and final issue, the Judgment Debtors claim the “trial

court erroneously denied the petition . . . to open the judgment on equitable

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grounds.”2 Judgment Debtors’ Brief at 41. As this framing of the issue

suggests, the Judgment Debtors fail to appreciate this Court’s deferential

standard of review for the denial of petition to open a default judgment. They

relitigate their claim that equity requires the opening of the default judgments

as if our standard of review were de novo. It is not.

A “petition to open a default judgment is an appeal to the equitable

powers of the court, and, absent an error of law or a clear, manifest abuse of

discretion, it will not be disturbed on appeal.” Myers v. Wells Fargo Bank,

N.A., 986 A.2d 171, 175 (Pa. Super. 2009). “An abuse of discretion occurs

when a trial court, in reaching its conclusions, overrides or misapplies the law,

or exercises judgment which is manifestly unreasonable or the result of

partiality, prejudice, bias, or ill will.” Id.

In arguing this issue, the Judgment Debtors do not allege that the trial

court committed an error of law. Instead, they contend that, because they

were defrauded by Mr. Thomas, “equity has the power to open the judgment,

even after the 30-day period that is ordinarily considered to be ‘prompt.’”

Judgment Debtors’ Brief at 46. Simply because equity empowers the court to

grant the relief a party seeks does not mean the court is required to do so.

Critically, the Judgment Debtors do not claim that the trial court abused

its discretion here. They do not identify which form of abuse of discretion the

trial court committed or persuade us that such an abuse occurred.

____________________________________________

2 We dismiss this issue as moot regarding the Herders. See note 1, supra.

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The trial court explained its rationale for denying the Judgment Debtors

equitable relief as follows:

Pennsylvania Courts have held that to be considered

prompt, a Petition to Open Judgment shall typically be filed

less than one month between the entry of default judgment

and the filing of a Petition to Open. Myers v. Wells Fargo

Bank, N.A., 986 A.2d 171, 176 (Pa. Super. 2009). Here,

default judgments were entered against [the Judgment

Debtors] on October 22, 2022, and October 28, 2022,

respectively, and [they] filed the instant Petition to Open

Judgment on February 11, 2022. The instant Petition to

Open Judgment was filed more than three months after the

entry of the default judgments, and thus should not be

considered prompt. Id.; Casting Condominium Ass'n,

Inc. v. Klein, 663 A.2d 220, 222 (Pa. Super. 1995) (delay

of three months between entry of default judgment and

filing of Petition to Open not prompt). Therefore, [the

Judgment Debtors] have not demonstrated that the subject

filing was prompt, failing to satisfy the first prong in the test

to open a default judgment.

* * *

[The Judgment Debtors] claim that their failure to file

a responsive pleading was reasonably excused because at

the onset of the case, [Mr. Herder] had mistakenly hired a

non-attorney to represent them. [They] claim that once it

was discovered that they were being represented by a non-

attorney, [the Judgment Debtors] sought and secured

counsel, and then filed the instant Petition. Default

judgment was taken against the Appellants on October 22,

2022, and October 28, 2022, respectively. [The Judgment

Debtors] realized that they were not being represented by

an attorney in mid-November. However, despite this

realization, new counsel was not obtained until January 2,

2022.

New counsel did not file the instant Petition to Open

Judgment until over one month after he entered his

appearance. Even though [the Judgment Debtors] had

sufficient notice of the entrance of the default judgments,

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[they] delayed significantly (approximately four months) in

securing new counsel and filing the subject Petition to Open.

[They] provided no excuse or justification explaining these

additional delays. Therefore, [their] excuse justifying their

delay in filing a responsive pleading should not be

considered reasonable. See Alba [v. Urology Assocs. of

Kingston, 598 A.2d 57, 58 (Pa. Super. 1991)].

Trial Court Opinion, 6/7/22, at 2-4 (some citations omitted).

This opinion is logical. Further, the trial court accepted the unverified,

unsupported factual assertions in the Judgment Debtors’ Memorandum of Law

for purposes of its review. Despite giving them the benefit of every factual

doubt, the trial court still found that the Judgment Debtors’ delay between

learning of this lawsuit and securing competent counsel and ultimately filing

the Petition to Strike was unreasonable.

While another judicial mind might have reached a different conclusion

as to what constituted undue delay under these circumstances, nothing in the

trial court’s decision is manifestly unreasonable. Reasonable minds may differ

as to how and when the Judgment Debtors should have responded to the

situation in which Mr. Thomas seemingly placed them.3

The trial court’s concern about the additional, six weeks’ delay between

the entry of Attorney Harrity’s appearance and the filing of the Petition to

____________________________________________

3 We are sympathetic to the fact that Eric D. Thomas, LLC may have tricked

Mr. Herder into thinking Mr. Thomas was a licensed attorney. However, at

this point, any claims against Eric D. Thomas, LLC and Mr. Thomas should be

resolved in a separate suit, where the matter can be fully litigated. Also, the

Judgment Debtors and their counsel may contact the appropriate authorities

to report the unauthorized practice of law in this Commonwealth and the other

states listed in the company’s letterhead.

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Strike the Default Judgments is particularly persuasive. The Judgment

Debtors knew they were against a running clock to strike or to open the default

judgments in early January.4 The trial court was well within its equitable

discretion to hold the Judgment Debtors accountable for that additional,

inexcusable delay.

Also, the court did not misapply the equitable test for reviewing a

petition to open a default judgment. Finally, the Judgment Debtors make no

allegation of partiality, bias, prejudice, or ill will. Thus, the trial court did not

abuse its discretion.

The fourth and final appellate issue is meritless.

Order reversed, in part – i.e., default judgment against Baron D. Herder

stricken; default judgment against Deborah Herder stricken. Order affirmed

in all other respects. Case remanded for further proceedings.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/7/2023

____________________________________________

4 Best practice would have been to file the petition to strike with the entry of

appearance, i.e., before negotiating with opposing counsel. This would have

eliminated the extra month-and-a-half delay between the entry of appearance

and the petition’s filing.

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