Allen, D. v. Cirello, J.
CourtSuperior Court of Pennsylvania
Date FiledOctober 22, 2026
Docket1744 EDA 2025
JudgeNichols
StatusUnpublished
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Full Opinion
J-A05023-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
DEBRA ALLEN AND GARY ALLEN, AS : IN THE SUPERIOR COURT OF
EXECUTORS OF THE ESTATE OF : PENNSYLVANIA
ASHLEY ALLEN :
:
Appellant :
:
:
v. :
: No. 1744 EDA 2025
:
JOSEPH A. CIRELLO, M.D., ATLANTIC :
MEDICAL GROUP, MATTHEW J. :
DOWNEY, M.D., AND NORTHEASTERN :
GASTROENTEROLOGY ASSOCIATES, :
PC :
Appeal from the Order Entered June 23, 2025
In the Court of Common Pleas of Pike County Civil Division at No(s):
2019-00684
BEFORE: KUNSELMAN, J., NICHOLS, J., and SULLIVAN, J.
MEMORANDUM BY NICHOLS, J.: FILED OCTOBER 22, 2026
Appellants Debra and Gary Allen, executors of the estate of Ashley Allen
(collectively referred to as the Estate or Appellants), appeal from the order
sustaining the preliminary objections filed by Appellee Joseph A. Cirello and
dismissing the Estate’s amended complaint. The Estate claims that the trial
court erred in granting Appellee’s preliminary objections and that transfer of
venue was improper. After careful review, we affirm.
The trial court set forth the underlying facts of this case as follows:
On May 24, 2019, [Appellants], executors of the Estate of Ashley
Allen . . . filed a writ of summons against the following defendants:
[Appellee], Atlantic Medical Group, Mathew J. Downey, M.D., and
Northeastern Gastroenterology Associates, P.C.[fn1] The Pike
J-A05023-26
County Sheriff’s Office made attempts to serve [Appellee] on May
28, 2019, May 29, 2019, and June 3, 2019. On [the] June 3,
2019, service attempt, the Pike County Sheriff served the
complaint on Marie Ellen Lucca, a registered nurse, [(Nurse
Lucca)] at the office location of Atlantic Medical Group (hereinafter
referred to as . . . Atlantic Medical)[, one of the other defendants
in this matter].[fn2]
fn1 When the writ of summons was filed, plaintiff Ashley Allen
(hereinafter referred to as Allen) was alive and the plaintiff
in the ligation. On June 20, 2019, defendants Mathew J.
Downey, M.D., and Northeastern Gastroenterology
Associates, P.C. filed a praecipe seeking a rule directing
Allen to file a complaint. On that same day[,] the Pike
County Prothonotary issued a rule directing Allen to file a
complaint within twenty (20) days. On September 29,
2019, Allen having failed to file a complaint, a ten-day notice
of intent to enter a judgment non pros was served upon
Allen’s counsel. Rather than filing a complaint on October
28, 2019, Allen’s counsel filed a praecipe to discontinue the
actions against defendants Mathew J. Downey, M.D., and
Northeastern Gastroenterology Associates, P.C.
fn2 At the oral argument on June 16, 2025, the Estate
conceded that it is asserting no claims against Atlantic
Medical and that Atlantic Medical was included on the writ
of summons merely as an address for [Appellee].
[Appellee] was never personally served with the writ of summons.
[Appellee] did not learn of the writ of summons until November
2024, when he received a copy of the Estate’s “amended”
complaint. [Appellee] practices medicine at Atlantic Medical but
he has no ownership interest in that business entity. [Nurse]
Lucca was not an agent of [Appellee] nor was she a person in
charge of Atlantic Medical. Finally, [Appellee] never authorized
[Nurse] Lucca to accept service of the writ of summons on his
behalf.
No further attempt was made to serve [Appellee] until [November
8,] 2024 when the “amended” complaint was mailed to
[Appellee].[fn3] The “amended” complaint has a count for wrongful
death and a count for a survival action. Both counts of the
“amended” complaint are lodged against [Appellee], and there is
no cause of action alleged against Atlantic Medical. [fn4]
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fn3 On October 30, 2024, the Pike County Court of Common
Pleas sent the Estate a notification that the case was going
to be terminated for inactivity. The “amended” complaint
was filed shortly after the notice of intent to terminate was
sent out.
fn4 During the oral argument on June 16, 2025, the Estate
again conceded that it was not asserting any claim against
Atlantic Medical.
On January 22, 2025, [Appellee] and Atlantic Medical filed
preliminary objections to the Estate’s “amended” complaint. . .
.[fn5]
fn5 The Estate was questioned as to whether the Estate
believed that the record was sufficient to decide the
outstanding preliminary objections. Counsel for the Estate
indicated that the Estate was satisfied with the current
record unless the court determined that more evidence was
necessary.
Trial Ct. Op., 6/23/25, at 1-3 (citations omitted and some formatting altered).
The Estate filed a timely notice of appeal and both the Estate and the
trial court complied with Pa.R.A.P. 1925.
On appeal, the Estate presents the following issues:
1. Whether the trial court made an error of law in granting
preliminary objections in favor of Appellee when sufficient
evidence existed to demonstrate service was satisfied under
Pennsylvania Rules of Civil Procedure?
2. Whether the transfer of jurisdiction from Pike County to
Susquehanna County was consummated in a way to afford
appropriate access to justice by [the Estate]?
Estate’s Brief at 6 (some formatting altered).
Preliminary Objections
In its first issue, the Estate argues that it effectuated proper service of
process on Appellee and therefore the trial court erred in sustaining Appellee’s
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preliminary objection to the Estate’s service of process attempt. See Estate’s
Brief at 11-22. Specifically, the Estate claims that the Pike County Sheriffs’
Office properly served Appellee by handing the Estate’s complaint to Nurse
Lucca at Appellee’s “office or place of business,” satisfying Rule 402(a)(2)(iii).
See id. at 15. The Estate argues that Nurse Lucca was authorized to accept
service on Appellee’s behalf under Rule 402(a)(2)(iii) because there was a
sufficient connection between Nurse Lucca and Appellee and Appellee had
more control over the office as its sole practitioner. See Estate’s Brief at 19-
21; see also N.T., 6/16/25, at 15-16. Additionally, the Estate claims that the
return of service was not facially defective despite the fact that the return of
service indicates that service was given at Appellee’s “place of abode.” See
Estate’s Brief at 19; see also N.T., 6/16/25, at 11. The Estate concludes that
the trial court erred in sustaining Appellee’s preliminary objections and in
dismissing the action based on lack of person jurisdiction for failure to
effectuate proper service of process. See Estate’s Brief at 19-22, 27.
We review a trial court’s ruling on preliminary objections for an error of
law. See Knight v. Springfield Hyundai, 81 A.3d 940, 947 (Pa. Super.
2013). This Court has explained:
In so doing, we employ the same standard as the trial court, to
wit, all material facts set forth in the amended complaint and
inferences reasonably drawn therefrom are admitted as true.
Preliminary objections which seek the dismissal of a cause of
action should be sustained only in cases in which it is clear and
free from doubt that the pleader will be unable to prove facts
legally sufficient to establish the right to relief.
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Id. at 947 (citations and quotation marks omitted, some formatting altered).
It is well settled that
[s]ervice 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. Without valid service,
a court lacks personal jurisdiction of a defendant and is powerless
to enter judgment against [the defendant].
Thus, improper service is not merely a procedural defect that can
be ignored when a defendant subsequently learns of the action. .
. . However, the absence of or a defect in a return of service does
not necessarily divest a court of jurisdiction of a defendant who
was properly served. [T]he fact of service is the important thing
in determining jurisdiction and . . . proof of service may be
defective or even lacking, but if the fact of service is established
jurisdiction cannot be questioned.
Cintas Corp. v. Lee’s Cleaning Services, 700 A.2d 915, 917-18 (Pa. 1997)
(citations and quotation marks omitted).
“Proper service is not presumed; rather, the return of service itself must
demonstrate that the service was made in conformity with the Pennsylvania
Rules of Civil Procedure.” Phillips v. Triple G. Farms, Inc., 514 MDA 2019,
2019 WL 5401109, at *2 n.4 (Pa. Super. filed Oct. 22, 2019) (unpublished
mem.).1
The Pennsylvania Rules of Civil Procedure govern service of process and
provide the following:
Rule 402. Manner of Service. Acceptance of Service.
____________________________________________
1 Pursuant to Pa.R.A.P. 126(b), we may cite unpublished memorandum
decisions of the Superior Court filed after May 1, 2019, for their persuasive
value.
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(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
(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(a).
Rule 405. Return of Service.
(a) When service of original process has been made the sheriff or
other person making service shall make a return of service
forthwith. If service has not been made and the writ has not been
reissued or the complaint reinstated, a return of no service shall
be made upon the expiration of the period allowed for service.
* * *
(b) A return of service shall set forth the date, time, place and
manner of service, the identity of the person served and any other
facts necessary for the court to determine whether proper service
has been made.
Pa.R.C.P. 405(a)-(b).
Further, it is well settled that “[w]hen a defendant presents a factual
dispute as to whether a plaintiff fulfilled [her duty to prove that she made a
good-faith effort to effectuate service of process in a timely manner], the
plaintiff carries an evidentiary burden to demonstrate that she met her good-
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faith mandate.” Gussom v. Teagle, 247 A.3d 1046, 1057 (Pa. 2021)
(citation omitted).
Here, the trial court explained:
In this case, the return of service indicates that service was
effectuated upon [Nurse Lucca] and that she was “a person of
suitable age and discretion then residing in the defendant’s usual
place of abode.” Thus, the return of service appears to seek to
effectuate service under Rule 402(a)(2)(i), which permits service
of process upon a defendant through a third party at a
defendant’s residence, provided that the third party is an adult
person in charge of the residence, not under Rule 402(a)(2)(iii),
relating to service of process at a defendant’s place of business to
defendant’s agent or person in charge of the business. [fn7]
[fn7]Rule 402(a)(2)(i) permits service of process at a
defendant’s residence to “an adult person in charge of such
residence.” The return of service in this case does not
contain any language that [Nurse] Lucca was in charge of
[Appellee’s] residence; rather, it simply notes that she was
an adult, she was residing at the location, and that the
location was [Appellee’s] usual place of abode. Thus, the
return of service likewise fails to satisfy Rule 402(a)(2)(i) in
that it fails to verify that [Nurse] Lucca was in charge of
[Appellee’s] “residence” when service was made.
* * *
[Here], the return of service is facially defective. While it provides
information regarding service to a third party, [Nurse] Lucca, it
makes clear that the service occurred at “Atlantic Medical Group,
Milford Medical Group, 111 E. Catherine Street, Suite 210, Milford,
PA 18337.” The only identifying information for [Nurse] Lucca is
that she was “a person of suitable age and discretion then residing
in the defendant’s usual place of abode.” From the face of the
return of service, the address where service was effectuated was
a business address—not a place of abode. Neither [Nurse] Lucca
nor [Appellee] resided there, and it was not [Appellee’s] “usual
place of abode.” Thus, the return of service is facially defective
and fails to demonstrate that proper service was made upon
[Appellee].
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To the extent that the Estate seeks to rely upon Rule 402(a)
(2)(iii) to demonstrate proper service of the writ of summons, the
return of service is again facially defective. The return of service
provides no explanation whatsoever as to [Nurse] Lucca’s
relationship with [Appellee] that would empower her to accept
service on his behalf. There is no verification in the return of
service that [Nurse] Lucca was [Appellee’s] agent nor was there
any verification that [Nurse] Lucca was the person in charge of
Atlantic Medical Group when service was made. As in [City of
Philadelphia v. Berman, 863 A.2d 156, 160 (Pa. Commw. Ct.
2004)2], no acceptance of service form was used as permitted
under Rule 402(b). In other words, the return of service is
woefully defective in that it relies upon the wrong subsection of
Rule 402 (relating to service at a defendant’s residence) when
service was made to a business address, and, even if this error is
overlooked, the return of service fails to provide sufficient
information to demonstrate effective service under Rule
402(a)(2)(iii). [Appellee’s] preliminary objection will be sustained
based upon the deficiencies in the return of service that fail to
demonstrate effective service under Rule 402(a)(2).
Even setting aside the facial[] deficiencies in the return of service,
[Appellee] submitted an affidavit providing the following
evidentiary support for his preliminary objection: (1) [Appellee]
practiced medicine at Atlantic Medical’s Milford office; (2)
[Appellee] has no ownership interest in Atlantic Medical; (3)
[Nurse] Lucca was not an agent of [Appellee]; (4) [Nurse] Lucca
was not a person in charge of Atlantic Medical; and (5) [Appellee]
never authorized [Nurse] Lucca to accept service on his behalf.
Having submitted this evidentiary basis for his challenge to
effective service under Rule 402(a)(2)(iii), the burden shifted to
the Estate to demonstrate that service was proper under Rule
402(a)(2)(iii).
As noted, Rule 402(a)(2)(iii) permits service of process at a
defendant’s “office or usual place of business” to the defendant’s
agent or to the person in charge of the business provided that the
defendant is more than an average employee, i.e., the defendant
must have more responsibility and control than the average
employee. At this point, the undisputed record reveals that
____________________________________________
2 We note that we may rely on decisions of the Commonwealth Court as
persuasive authority. See Turner v. Estate of Baird, 270 A.3d 556, 561 n.3
(Pa. Super. 2022).
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[Appellee] practiced medicine at Atlantic Medical’s Milford office,
but [Appellee] possessed no ownership interest in Atlantic
Medical. Given [Appellee’s] evidentiary submission, the burden
shifted to the Estate to demonstrate that [Appellee] occupied a
position with his employer that involved more control and
responsibility than the average employee. In its answer, the
Estate provided no evidence whatsoever regarding [Appellee’s]
role with Atlantic Medical. At the argument on the preliminary
objections, the Estate indicated that it was satisfied with the
record and did not supplement it. Given that the Estate has failed
to demonstrate that [Appellee] had greater responsibilities than
an average employee, proper service could not be effectuated
under Rule 402(a)(2)(iii) . . . [Appellee’s] preliminary objection
will [also] be sustained upon the failure of the Estate to
demonstrate that [Appellee] was more than an “average
employee” of Atlantic Medical.
Further, the Estate has failed to present any evidence to meet its
burden of demonstrating that [Nurse] Lucca was [Appellee’s]
agent or a person in charge of Atlantic Medical to permit her to
accept service for [Appellee] under Rule 402(a)(2)(iii). Instead,
the current record, as demonstrated by [Appellee’s] affidavit,
provides that [Nurse] Lucca was not [Appellee’s] agent, was not
the person in charge of Atlantic Medical’s Milford Office, and was
not authorized to accept service on behalf of [Appellee]. The
Estate has produced no evidence to counter [Appellee’s] affidavit.
. . . [Accordingly, Appellee’s] preliminary objection will be
sustained.
Trial Ct. Op., 6/23/25, 5-11 (some citations omitted, emphasis added, and
some formatting altered).
Following our review of the record, we conclude that the trial court did
not err in sustaining Appellee’s preliminary objections based on improper
service. See Knight, 81 A.3d at 947. As noted by the trial court, “the address
where service was effectuated was a business address—not a place of abode,”
and, therefore, service of process was facially defective under Rule
402(a)(2)(i) and 402(a)(2)(ii) for service at a residence. See Carter v. B.
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Game I, LLC, 1338 EDA 2022, 2023 WL 1795178 at *3-4 (Pa. Super. filed
Feb. 7, 2023) (unpublished mem.) (stating that a return of service is facially
defective where it fails to properly identify the location as an “office or usual
place of business”); see also Berman, 863 A.2d 156, 160; Pa.R.C.P.
402(a)(2)(i)-(ii) (providing for two methods to effectuate service of process
at the defendant’s residence). Since the Estate made no claim that service
was effectuated at Appellee’s residence, the trial court was correct in
concluding that the Estate failed to satisfy Rule 402(a)(2)(i) or 402(a)(2)(ii).
See Knight, 81 A.3d at 947.
We also agree with the trial court that the Estate’s service was facially
defective under Rule 402(a)(2)(iii) as the return of service sets forth
information suggesting Appellee was served at his residence when Appellee
was served at a business address and it does not explain whether Nurse Lucca
was empowered to accept service on Appellee’s behalf. See id.
Additionally, Appellee attested that, although he was employed by
Atlantic Medical, he did not have any ownership interest in the medical
practice; Nurse Lucca was not his agent; and he had not authorized Nurse
Lucca to accept service on his behalf. See Appellee’s Affidavit, 1/22/25, at 1-
2 (unpaginated). As the trial court stated, the Estate did not provide any
evidence contradicting Appellee’s affidavit. 3
____________________________________________
3 As we will discuss below, the Estate did not attempt to depose Nurse Lucca
or otherwise elicit information from her about her role at the business, whether
(Footnote Continued Next Page)
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Accordingly, the trial court correctly concluded that the Estate failed to
prove that Appellee had more proprietary responsibility and control over the
business than that possessed by the average employee, as required to
establish service under Rule 402(a)(2)(iii). See Mazzuca v. Abreu, 310 A.3d
775,788 n.10 (Pa. Super. 2024).4 Further, the trial court correctly concluded
that the Estate failed to meet its burden of demonstrating that Nurse Lucca
was authorized to accept service for Appellee under Rule 402(a)(2)(iii) either
as Appellee’s agent or as a person in charge of Atlantic Medical. See Knight,
81 A.3d at 947; see also Gussom, 247 A.3d at 1057.
Therefore, because the Estate failed to establish that proper service of
process was effectuated on Appellee under any of the subsections of Rule
402(a)(2), we conclude that the trial court did not err in sustaining Appellee’s
preliminary objections based on improper service. See Knight, 81 A.3d at
____________________________________________
she was Appellee’s agent, or whether Appellee had “more responsibility and
control over the business” than the average employee. See Mazzuca, 310
A.3d at 788 n.10 (stating that “service of an individual at his or her office or
usual place of business is only appropriate when the person to be served has
more proprietary responsibility and control over the business than that
possessed by the average employee” (citation and internal quotation marks
omitted)); Pa.R.C.P. 402(a)(iii).
4 We also note that while Atlantic Medical was Appellee’s usual place of
employment, that determination is not interchangeable with whether Atlantic
Medical also serves as Appellee’s “office or usual place of business” under Rule
402(a)(2)(iii). See Cintas Corp., 700 A.2d at 919 (explaining that the
distinction “place of employment” and “office or usual place of business” is not
merely semantic, as it carries legal significance) (citing Sharp v. Valley
Forge Med. Ctr. & Heart Hosp., Inc., 221 A.2d 185, 186-87 (Pa. 1966)
(interpreting former Rule 1009(b)(2)(iii), now Rule 402(a)(2)(iii))).
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947; Mazzuca, 310 A.3d at 788; Phillips, 2019 WL 5401109 at *2 n.4;
Pa.R.C.P. 402(a)(2). For these reasons, the Estate is not entitled to relief on
this issue.
Transfer of Venue
In its second issue, the Estate argues that the manner in which the trial
court in Pike County transferred venue to Susquehanna County “led to a denial
of appropriate access to justice for [the Estate] for further consideration of
the underlying preliminary objections.” Estate’s Brief at 23. Specifically, the
Estate argues that it was required to file its documents with Pike County, which
would in turn forward the motion to Susquehanna County, and this procedure
resulted in the Estate’s motion to supplement the record arriving in
Susquehanna County after the trial court entered its dismissal order. Id. at
23-25. The Estate claims that had its motion to supplement been timely
delivered to the trial court in Susquehanna County before the matter was
dismissed, it may have had the opportunity proffer additional evidence to
establish that it had properly served Appellee. Id. at 25-26.
Our Supreme Court has held that “trial courts have the inherent
discretion to reopen the record on their own and to grant the parties leave to
supplement it with evidence regarding a particular issue, as long as neither
party is prejudiced.” Commonwealth v. Safka, 141 A.3d 1239, 1249–50
(Pa. 2016). Additionally, while a trial court has the authority to reopen the
record by granting a motion to supplement the record, it is under no obligation
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to do so. See Cnty. of Bucks v. Brock, 531 C.D. 2023, 2025 WL 1982440,
at *8 (Pa. Cmmw. Ct. filed July 17, 2025) (unpublished mem.).
On this issue, the trial court explained:
[During the hearing the] Estate expressed a willingness to
seek to supplement the record if the court believed it was
necessary. [However,] [u]pon [Appellee] presenting his
affidavit . . . the burden shifted to the Estate to present
evidence to demonstrate that service was effective. The
Estate has simply failed to present any evidence whatsoever
to rebut the claims made by [Appellee’s] affidavit. The court
must simply review the record presented and not act as an
advocate for the Estate to determine whether the Estate
should or should not be presenting more evidence. Thus, it
was the Estate’s obligation, not the court’s obligation, to
determine whether the Estate wanted to supplement the
record. When pressed on this issue, the Estate indicated
that it was satisfied with the current record.
Trial Ct. Op., 6/23/25, at 9, n.8.
Initially, we note that even if the motion to supplement had been
received by the trial court in Susquehanna County prior to the dismissal order
of June 23, 2025, it does not then follow that the court would have reopened
the matter to permit additional evidence on the question of effective service.
See Safka, 141 A.3d at 1249–50; Brock, 2025 WL 1982440 at *8. As the
trial court noted, the Estate gave clear indication at the hearing that it did not
intend to supplement the record, and that it was satisfied with the current
record. See N.T., 6/16/25, at 16. The trial court was under no obligation to
reopen the matter to permit the Estate to supplement the record since the
decision of whether to do so is a discretionary action. See Safka, 141 A.3d
at 1249–50; Brock, 2025 WL 1982440 at *8.
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Further, a review of the Estate’s motion shows that the Estate’s
proposed supplemental evidence would not have been sufficient to defeat the
defects in service on Appellee. Notably, the Estate’s motion to supplement
did not seek to depose Appellee or Nurse Lucca to establish that Nurse Lucca
was, as Rule 402(a)(2)(iii) requires, qualified to accept service on behalf of
Appellee or that Appellee had proprietary responsibility and control over the
business. See Pa.R.Civ.P. 402(a); see also Knight, 81 A.3d at 947;
Mazzuca, 310 A.3d at 788 n.10. Instead, the record reflects that the Estate
sought to supplement the record with information to be elicited by deposing
Sheriff Hernandez about service of the writ of summons to Nurse Lucca,
information from Appellee and Atlantic Medical’s website about Appellee’s role
as the sole physician at the practice as of June 2025, and with an affidavit
from an expert who would explain that the current website information would
also apply back to the alleged date of service on June 3, 2019. See Mot. to
Supplement, 6/23/25, at 2 (unpaginated). While the Estate’s proposed
evidence attempts to shed light on its service attempt on Appellee, this
evidence does not rebut Appellee’s affidavit establishing that Nurse Lucca was
not authorized to accept service on Appellee’s behalf and that Appellee did not
have more proprietary responsibility and control over the business than that
possessed by the average employee. Cf. Hollinger v. Hollinger, 206 A.2d
1, 3 (Pa. 1965) (stating that when a sheriff completes a return of service the
place and time of the service is within the personal knowledge of the sheriff
but the sheriff does not have personal knowledge of facts stated in the return
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obtained through hearsay or statements made by third persons such as
whether the address is a dwelling house or residence of the party being
served); see also Mot. to Supplement, 6/23/25, at 6-15 (unpaginated)
(showing that the website descriptions do not establish Appellee’s proprietary
responsibility and control over the business despite the Estate’s claim).
Therefore, we conclude that even if the trial court had received the
supplementation motion prior to dismissing the action and granted the motion
to supplement the record, the Estate’s proposed evidence was not sufficient
to satisfy the Estate’s evidentiary burden. See Gussom, 247 A.3d at 1057;
Knight, 81 A.3d at 947; Mazzuca, 310 A.3d at 788 n.10. In sum, the
evidence the Estate sought to supplement the record within its motion would
not have established that the Estate effectively served Appellee, and,
therefore, the Estate is not entitled to relief on this issue. Accordingly, we
affirm.
Order affirmed. Jurisdiction relinquished.
Date: 10/22/2026
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