Opinion
J-S45001-15 No. 1954 MDA 2014
08-07-2015
JORGE SALAS, Appellant v. WAL-MART STORES EAST, INC., Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 20, 2014
In the Court of Common Pleas of Berks County
Civil Division at No(s): 11-1137
BEFORE: BOWES, WECHT, AND FITZGERALD JJ. MEMORANDUM BY BOWES, J:
Former Justice specially assigned to the Superior Court.
Jorge Salas appeals from the October 21, 2014 order granting preliminary objections and dismissing this action against Wal-Mart Stores East, Inc. due to defective service of original process. We affirm.
On January 24, 2011, Appellant instituted this action by writ of summons directed to Wal-Mart Stores East, Inc., with an address at 5370 Allentown Pike, Temple, Pennsylvania. The writ was sent to the sheriff's office that same day. The Sheriff's Department Order for Service completed by Appellant asked the sheriff to personally serve the writ upon: "Wal-Mart Stores East, Inc.," at the location, "5370 Allentown Pike, Temple, PA 19560." Sheriff's Department Order for Service, 1/24/11, at 1. The form contains a blank portion for "Special Instructions," but it was not completed. Id. The sheriff's return, which was filed on February 16, 2011, stated that the summons was served at 5:40 p.m. on January 31, 2011 by "handing to PHAEDRA MILLER ASSET PROTECTION/Person in Charge by handing a True and Attested Copy thereof at: 5370 ALLENTOWN PIKE, Muhlenberg Township, Berks County, Pa." Sheriff's Return, 2/16/11, at 1.
On December 17, 2012, the Prothonotary of Berks County sent a notice of proposed termination of this case due to inactivity. On February 15, 2013, Appellant filed a notice of intention to proceed. Seventeen months later, Appellant filed a complaint averring that on January 23, 2009, he was in the Wal-Mart located at 5370 Allentown Pike, Temple, when he slipped and fell on a round spice container that was on the floor in one of the aisles.
A copy of the complaint was mailed to the address listed above. Appellee thereafter filed preliminary objections based upon defective service of process. It set forth that Wal-Mart Stores East, Inc. is a Delaware corporation with its principal place of business in Arkansas. Attached as an exhibit to the preliminary objections was Appellee's filing with the Pennsylvania Department of State. That document indicated that Wal-Mart Stores East, Inc. had its registered office for purposes of original service of process in Pennsylvania at C T Corporation System located at 116 Pine Street, Suite 320, Harrisburg, Pennsylvania. It further reported that Phaedra Miller was not the person in charge of the Wal-Mart store on Allentown Pike on January 31, 2011 at 5:40 p.m. Finally, Appellee stated that it did not own the Wal-Mart store where Appellant was allegedly injured and that the store in question was owned by Wal-Mart Stores East, L.P.
Appellant responded that Appellee owned all 11,000 Wal-Mart stores in this country and that Phaedra Miller was in charge of the store in question on January 31, 2011 at 5:40 p.m. The response to the preliminary objections did not have exhibits, such as corporate filings or affidavits, to support these factual assertions. Appellee's preliminary objections were granted on October 20, 2014. This appeal followed. Appellant presents one issue for our review, "Whether the Lower Court erred in striking the return of service and sustaining the preliminary objections to dismiss the action, where the individual served was a security supervisor for Appellee at the location where Appellant was injured, and that service was timely made." Appellant's brief at 4.
We first address Appellee's motion to dismiss this appeal. Appellee asks us to dismiss this appeal due to Appellant's failure to send his designation of the contents of the reproduced record in a timely manner. The case law provides that the dismissal of an appeal for such an infraction is unwarranted. Morgan Guar. Trust Co. of New York v. Mowl , 705 A.2d 923, 924 n. 1 (Pa.Super. 1998) (since failure to timely designate the contents of the reproduced record did not "affect our ability to engage in meaningful appellate review of the issues involved," we refused to dismiss the appeal); see also Reliance Ins. Co. v. IRPC , Inc., 904 A.2d 912 (Pa.Super. 2006) (declining to quash appeal due to appellant's failure to timely designate contents of reproduced record).
Appellee also seeks a dismissal of this appeal due to Appellant's failure to prosecute this matter in a diligent manner. It notes that the case was nearly dismissed for lack of docket activity and that the complaint was not filed for seventeen months after Appellant indicated that he intended to proceed. A judgment of non pros was not granted in the court below, and Appellee provides no legal authority for the proposition that we can dismiss an appeal based upon a party's lack of diligence or any procedural irregularities with respect to the proceedings in the court of common pleas.
Finally, Appellee requests that we dismiss this appeal due to Appellant's failure to file his brief in accordance with the original briefing schedule. On March 30, 2015, this Court entered an order granting Appellant's request for an extension of time to file his brief and reproduced record, which were timely filed under that order. Appellee suggests that the extension should not have been granted, but we are not free disregard the fact that this Court already ruled on the matter and accorded Appellant the extension. Hence, we decline to dismiss this appeal, and thus we now address it merits.
Initially, we observe that our "standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court." Richmond v. McHale , 35 A.3d 779, 783 (Pa.Super. 2012). Hence, our standard of review is de novo and our scope of review is plenary. Morrison Informatics , Inc. v. Members 1st Fed. Credit Union , 97 A.3d 1233, 1237 (Pa.Super. 2014).
Also pertinent to our resolution is the precept that, "Service of process is a mechanism by which a court obtains jurisdiction of a defendant, and therefore, the rules concerning service of process must be strictly followed." Trexler v. McDonald's Corp., ___ A.3d ___, 2015 WL 3488538 (Pa.Super. 2015) (quoting Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917 (Pa. 1997)). Additionally, "There is no presumption as to the validity of the service and the return itself is required to set forth service in conformance with the rules." Sharp v. Valley Forge Medical Center & Heart Hospital , Inc., 221 A.2d 185, 187 (Pa. 1966).
On appeal, Appellant maintains that the two entities at issue are related and that Appellee owns Wal-Mart Stores East, L.P. Appellant's brief at 13. He thus claims that notice to Wal-Mart Stores East, Inc. was sufficient to notify its related corporation, Wal-Mart Stores East, L.P., and implicitly admits that Wal-Mart Stores East, L.P. is the actual owner of the store where he purportedly fell. This position was not raised in the court below and is waived. Moranko v. Downs Racing LP , 2015 WL 3609361, 3-4 (Pa.Super. 2015) (issues not raised in the trial court are waived for purposes of appeal); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
Appellant's claim in his response to the preliminary objections was that Appellee owned the Wal-Mart store in question. Specifically, Appellant averred, "Wal-Mart Stores East, Inc., is Walmart's Home Office and is liable for all of its 11.000 [sic] stores, especially the ones in the United States of America and Pennsylvania." Plaintiff's Answer to Plaintiff's Preliminary Objections, 9/27/14 at ¶ 16; see also Plaintiff's Memorandum of Law in Support of Its [sic] Answer to Defendant's Preliminary Objections, 9/27/14, at (unnumbered page) 2 ("Walmart is connected to all Walmart's [sic] throughout the United States of America and outside of this great country.") To support this position, Appellant referenced an Exhibit A, but the record contains no exhibits attached to the response to the preliminary objections.
Additionally, even if the owner of the Wal-Mart store on Allentown Pike was Appellee, service was not proper. Pa.R.C.P. 424 outlines the rules applicable to service of original process on corporations or similar entities:
Service of original process upon a corporation or similar entity shall be made by handing a copy to any of the following persons provided the person served is not a plaintiff in the action:
Pa.R.C.P. No. 424.(1) an executive officer, partner or trustee of the corporation or similar entity, or
(2) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the corporation or similar entity, or
(3) an agent authorized by the corporation or similar entity in writing to receive service of process for it.
Thus, the critical question on appeal is whether the person in asset protection, in other words, a security guard, who was handed the writ was the person in charge of the Wal-Mart store when service of process was made at 5:40 p.m. on January 31, 2011. We conclude that a security guard is not a person in charge of an open retail store.
In support of his assertion that the asset protection officer was the person then in charge of the open Wal-Mart store, Appellant relies solely upon our Supreme Court's decision in Cintas , supra. Therein, the action was instituted in Philadelphia, where any competent adult can serve process. The plaintiff established that an adult handed its complaint to a receptionist at the defendant's dry cleaning establishment. The plaintiff additionally presented an affidavit wherein the person who served the receptionist attested that the receptionist specifically represented that she was in charge of the office when service was effectuated.
Our High Court, which ruled that service was proper, noted that, in determining whether the person who was served was the "person for the time being in charge" under Pa.R.C.P. 424(2), the key question is whether the service satisfied the purposes of the rule. The rules for service of process are designed to accord a defendant his due process right to "be given adequate notice that litigation has commenced." Id. at 919-920. The Cintas court continued that the case law provides that there "must be a sufficient connection between the person served and the defendant to demonstrate that service was reasonably calculated to give the defendant notice of the action against it." Id. at 920.
For example, in Grand Entertainment Group , Ltd. v. Star Media Sales , Inc., 988 F.2d 476 (3d Cir.1993), the Third Circuit held that a receptionist who was located in the lobby of the building where the defendants rented space and who was not the defendants' employee was not a person in charge of the defendants' place of business. See also Trzcinski v. Prudential Property and Casualty Ins. Co., 597 A.2d 687 (Pa.Super. 1991) (handing process to receptionist at defendant's law firm did not satisfy Pa.R.C.P. 424); Fisher v. Kemble Park , Inc., 1142 A.2d 353 (Pa.Super. 1958) (service on a janitor in a building owned by the defendant was defective).
Herein, handing a copy of process to a security officer located in an open retail store of a multi-national corporation with its principal place of business in Arkansas is not reasonably calculated to give actual notice to that corporation of the pendency of a lawsuit. The connection between a security guard in a store in Pennsylvania and a corporation running thousands of retail stores from another state is too attenuated to sustain valid service under Pa.R.C.P. 424.
We also note that, throughout his appellate brief, Appellant maintains that he was entitled to an evidentiary hearing to establish his factual claims. Appellant never requested a hearing in response to Appellee's preliminary objections, and his claim is therefore waived. Appellant also contends that he had no control over the manner in which the sheriff served the writ. We disagree with this position. The service request form for the sheriff's office leaves space for special instructions. Appellant merely had to insert instructions to serve the person then in charge of the store, i.e., the store manager. Additionally, Appellant could have served the entity designated as Appellee's registered agent in Pennsylvania for purposes of service of original process. For the foregoing reasons, we agree with the trial court's conclusion that Appellant's service of original process was defective and that this action must be dismissed since Appellant did not obtain jurisdiction over Appellee.
Motion to dismiss appeal denied. Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/7/2015