Commonwealth v. Mara
45 Pa. D. & C.5th 117
Pennsylvania Court of Common P...2014Background
- Commonwealth filed UTCPA action May 28, 2003; service affidavit signed June 16, 2003 and filed August 19, 2013 after defendant Mara moved to strike.
- Cascio personally served Christy Mara, wife of Edward Mara, at 24 Olde Mill Run, Stroudsburg on May 30, 2003; service time recorded as 12:30 p.m.
- Amended complaint filed October 22, 2009; no answer; default judgment entered October 8, 2010 after 10-day notice.
- Final order December 16, 2010 granted injunctive relief and awarded the Commonwealth $428,809.49 in damages.
- Commonwealth sought sanctions in 2013 for alleged renewed violations; numerous motions and continuances; hearing scheduled for July 30, 2014.
- Mara moved to strike judgment and dismiss for lack of jurisdiction July 26, 2014; court found no affidavit of service of record at time of judgment and granted strike, vacating the December 16, 2010 judgment; Mara ordered to respond to amended complaint within 20 days.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the default judgment can be struck for lack of an affidavit of service on the record at judgment time. | Commonwealth argues the late-filed Cascio affidavit suffices under Rule 402(a)(2) and that the record shows proper service. | Mara contends there was no service record to support the judgment, rendering it void or voidable. | Motion granted; default judgment struck and vacated. |
| Whether Christy Mara’s service was valid to support the action against Edward Mara. | Service at the marital residence to an adult in the household complied with Rule 402(a)(2). | Argues lack of timely, recordable service documentation invalidates the judgment. | Service on Christy Mara was valid for Rule 402(a)(2), but insufficient to preserve judgment absent record evidence. |
| Whether Edward Mara was actually served with the original complaint. | Record shows personal service on Christy Mara; Edward Mara later acknowledged involvement in related proceedings. | Defendant contends lack of appearance implies insufficient service on him personally. | Court finds Edward Mara was actually served; however the judgment was struck for lack of service record at judgment time. |
Key Cases Cited
- Malakoff v. Zambar, Inc., 288 A.2d 819 (Pa. 1972) (demurrer to defects in record; motion to strike requires fatal record defects)
- Scheiner v. Redevelopment Authority of the City of McKeesport, 465 A.2d 140 (Pa. Cmwlth. 1983) (demonstrates scope of review for petitions to strike defects on record)
- Franklin Interiors v. Wall of Fame Management, 511 A.2d 761 (Pa. 1986) (petition to strike may be granted only for defects appearing on the face of the record)
- Linett v. Linett, 254 A.2d 7 (Pa. 1969) (look to record at the time judgment was entered to assess defects)
- Cintas Corp. v. Lee’s Cleaning Services, Inc., 700 A.2d 915 (Pa. 1997) (affidavit timing; proportional to whether record shows service details at judgment time)
- Knickerbocker Russell Co., Inc. v. Crawford, 936 A.2d 1145 (Pa. Super. 2007) (sufficiency of information for prothonotary to determine service when affidavits filed after judgment)
- ANS Associates, Inc. v. Gotham Ins. Co., 42 A.3d 1074 (Pa. Super. 2012) (writ served by regular mail; evidence not part of record at judgment entry cannot cure defect)