http://www.pacourts.us/OpPosting/Superior/out/a15024_12.pdf
Tuesday, September 25, 2012
Wednesday, September 19, 2012
UC - separation agreement - immediacy of threat of discharge - VQ v. invol. termination
Halldin v. UCBR – Cmwlth. Court – Septemver 19, 2012 –
unpublished memorandum opinion
The Board's own findings of fact showed that claimant met with management to discuss an involuntary separation of employment.” (FOF ¶ 2 (emphasis added).) On the day after this meeting discussing Claimant’s involuntary separation, Employer presented Claimant with the Separation Agreement, in which Employer agreed to pay Claimant severance pay for a period of time in exchange for Claimant signing the Separation Agreement and leaving her employment. Finally, finding of fact 5 states that “[C]laimant signed the Separation Agreement . . . because of her belief that her employment would have been involuntarily terminated in one (1) month if she decided not to accept and sign the Separation Agreement.” (FOF ¶ 5 (emphasis added).)
_________________________
Board denial of benefits reversed where its own
findings of fact did not support its legal conclusion that the
claimant quit her job when continuing work was available and chance of
termination was only speculative.
The Board's own findings of fact showed that claimant met with management to discuss an involuntary separation of employment.” (FOF ¶ 2 (emphasis added).) On the day after this meeting discussing Claimant’s involuntary separation, Employer presented Claimant with the Separation Agreement, in which Employer agreed to pay Claimant severance pay for a period of time in exchange for Claimant signing the Separation Agreement and leaving her employment. Finally, finding of fact 5 states that “[C]laimant signed the Separation Agreement . . . because of her belief that her employment would have been involuntarily terminated in one (1) month if she decided not to accept and sign the Separation Agreement.” (FOF ¶ 5 (emphasis added).)
Notwithstanding these findings
of fact, the Board concluded that there was no indication that there would not
be continuing work for Claimant had she not signed the Separation Agreement or
that Employer would discharge Claimant. Based on these conclusions, the Board
found Claimant ineligible for UC benefits.
However, the findings of fact do not support the
Board’s conclusions of law but, rather, support the contrary conclusion that
Claimant’s signing of the Separation Agreement and voluntarily leaving her
employment was done in anticipation of her imminent involuntary discharge. See
Wright-Swygert v. Unemployment Compensation Board of Review, 16 A.3d 1204, 1208
(Pa. Cmwlth. 2011)_________________________
The opinion, though not reported, may be
cited "for its persuasive value, but not as binding precedent." 210
Pa. Code § 67.55. Citing
Judicial Opinions.
Tuesday, September 18, 2012
Social Security - Chevron deference - AR 92(6) - cessation of disability
Hagans v. Commissioner of Social Security – 3d Cir. –
September 14, 2012
The primary issue in the case was the relevant date for determining whether claimant continued to be disabled – the date on which the SSA asserts that his disability had ceased or the date of the ALJ’s hearing or the date of the ALJ’s ruling. . Use of one of these later dates would bolster the claim for disability benefits because he had advanced into a different age category by the time of the ALJ’s hearing.
In holding that the claimant's disability had ceased,
interpreting 42 USC 423(f) and 92 AR-2(6), the court granted a "relatively
high level of deference" to SSA's interpretation of the statute and
the AR.
The primary issue in the case was the relevant date for determining whether claimant continued to be disabled – the date on which the SSA asserts that his disability had ceased or the date of the ALJ’s hearing or the date of the ALJ’s ruling. . Use of one of these later dates would bolster the claim for disability benefits because he had advanced into a different age category by the time of the ALJ’s hearing.
The court deferred to the SSA ruling that the earlier date
was appropriate.
Friday, September 14, 2012
UC - self-employment - findings on indiv. issues - notice of issues
Cooper v. UCBR - Cmwlth. Court -
Sept. 7, 2012 - unpublished memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/2118CD11_9-7-12.pdf
Lack of findings
Unfortunately, our ability to
perform effective appellate review of whether Claimant is self-employed and
ineligible for benefits pursuant to Sections 402(h) and 4(l)(2)(B) is
hindered by the lack of factual findings made by the Board in this matter. Although
it found that Claimant was free from the direction and control of ECI and
Hilton, the Board issued no findings of fact regarding the individual factors
necessary for making that determination. Additionally, the Board made no
findings of fact regarding whether Claimant was customarily engaged in an
independently established trade, occupation, profession or business. In fact,
the Board did not address the second prong of Section 4(l)(2)(B) in
determining that Claimant was ineligible for benefits as an independent
contractor. Thus, we must remand this matter to the Board.
Each prong has a number of factors that will be considered to determine whether a claimant is self-employed. See, e.g., Tracy v. UCBR, 23 A.3d 612, 616 (Pa. Cmwlth. 2011) , , , ,"No single factor is controlling . . . and, therefore, the ultimate conclusion must be based on the totality of the circumstances." Resource Staffing, Inc. v. UCBR, 961 A.2d 261, 264 (Pa. Cmwlth. 2008). Furthermore, we recently have held that "the fact that an unemployed person agrees to accept, and thereafter does accept, an occasional offer of work is simply not enough to demonstrate that said individual is customarily engaged in an independently established trade, occupation, profession or business." Silver v. UCBR, 34 A.3d 893, 898 (Pa. Cmwlth. 2011). . .. Minelli v. UCBR, 39 A.3d 593, 597-98 (Pa. Cmwlth. 2012).
Adequate notice of the issues - We have held that the Board’s regulations, including 34 Pa. Code § 101.107 (what issues can be considered on appeal) "are designed to prevent surprise to claimants." Sharp Equipment Co., 808 A.2d at 1026. Moreover, the Board may only consider what was "delineated in the Bureau’s determination notice. To allow a critique of other conduct against which charge the employee is unprepared to defend or explain is fundamentally unfair and, absent mutual consent of its consideration, is prohibited." Hanover Concrete Co. v. UCBR, 402 A.2d 720, 721 (Pa. Cmwlth. 1979). Thus, "where an applicant has been found ineligible for benefits, this Court will limit the hearing to the reason stated in the Bureau’s determination." Sharp Equipment Co., 808 A.2d at 1026 (second emphasis added).
We do not agree that a party’s due process rights of notice, an opportunity to be heard, and to defend are satisfied when, although a party is provided a general statement as to the section of the Law at issue, the Board bases its determination of ineligibility on a new legal theory that had not been raised or addressed in the prior proceedings or, most importantly, during the Referee’s hearing at which a party is supposed to have an opportunity to present evidence in support of his or her eligibility
While the overall legal issue has been whether Claimant was engaged in self-employment, the legal basis for that determination has differed at each stage of the proceedings in this matter. A remand is also required for these reasons.
________________
The opinion,
though not reported, may be cited "for its persuasive value, but not as
binding precedent." 210
Pa. Code § 67.55. Citing
Judicial Opinions.
UC - willful misconduct - email - threat - use of capital letters
Aversa v. UCBR – Cmwlth. Court – Sept.
13 2012
http://www.pacourts.us/OpPosting/Cwealth/out/1744CD11_9-13-12.pdf (2-1)
To find that Claimant intended a threat requires evidence. This evidence could take the form of an admission by Claimant to a third party, such as "I sent a threat to Mowery today." Otherwise, the words of the statement itself must establish, objectively, the intended threat. The HR manager believed that because "I won’t forget it" written in capitalized letters, it conveyed a threat. The manager did not consider the fact that capitalized letters in an e-mail are still quite small.
The context of a remark is also relevant. Bush v. UCBR, 409 A.2d 523, 544 (Pa. Cmwlth. 1980) (holding that a finding of willful misconduct on the basis of use of proscribed language requires consideration of the context in which the language is used). A message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture. Further, there is nothing threatening about the words "I won’t forget it." The use of capitalized letters adds emphasis, but it did not transform a four-word declarative sentence into a threat of violence. The message was not sent anonymously. The HR manager’s subjective construction is not itself substantial evidence of Claimant’s intent.
The words in the e-mail convey two points: Claimant noted Mowery’s perceived perfidy and informed Mowery that he was not going to forget Mowery’s act. Neither constitutes a threat. At most, the e-mail conveys the information that Claimant is angry and bears a grudge. The Associate Handbook does not forbid expressing anger or harboring grudges.
In sum, we hold that by objective standards, the e-mail did not convey an intentional threat or a wanton and deliberate violation of Employer’s workplace violence policy.
Accordingly, we reverse
http://www.pacourts.us/OpPosting/Cwealth/out/1744CD11_9-13-12.pdf (2-1)
Neutral words are converted into threat by use of CAPITAL LETTERS
When claimant perceived he was
wrongfully removed from a sales region, he wrote to the person who replaced
him, stating: Hey
Jim, you set me up pretty good … I WON’T FORGET IT.”
The employer fired him for threatening conduct. The UCBR denied benefits.
The Board did not believe Claimant’s statement that he
did not intend to convey a threat, but that credibility determination is not
substantive evidence that Claimant did, in fact, intend a threat. An adverse
credibility determination is not itself substantial evidence.
To find that Claimant intended a threat requires evidence. This evidence could take the form of an admission by Claimant to a third party, such as "I sent a threat to Mowery today." Otherwise, the words of the statement itself must establish, objectively, the intended threat. The HR manager believed that because "I won’t forget it" written in capitalized letters, it conveyed a threat. The manager did not consider the fact that capitalized letters in an e-mail are still quite small.
The context of a remark is also relevant. Bush v. UCBR, 409 A.2d 523, 544 (Pa. Cmwlth. 1980) (holding that a finding of willful misconduct on the basis of use of proscribed language requires consideration of the context in which the language is used). A message transmitted through cyberspace does not contain the same force or immediacy of an in-person exchange; it is absent of voice or hand gesture. Further, there is nothing threatening about the words "I won’t forget it." The use of capitalized letters adds emphasis, but it did not transform a four-word declarative sentence into a threat of violence. The message was not sent anonymously. The HR manager’s subjective construction is not itself substantial evidence of Claimant’s intent.
The words in the e-mail convey two points: Claimant noted Mowery’s perceived perfidy and informed Mowery that he was not going to forget Mowery’s act. Neither constitutes a threat. At most, the e-mail conveys the information that Claimant is angry and bears a grudge. The Associate Handbook does not forbid expressing anger or harboring grudges.
In sum, we hold that by objective standards, the e-mail did not convey an intentional threat or a wanton and deliberate violation of Employer’s workplace violence policy.
Accordingly, we reverse
Friday, September 07, 2012
UC - self-employment - indpt. contractor - 2-prong test
Jia v. UCBR - Cmwlth. Court - Septe.ber 7, 2012 - unreported memorandum opinion
http://www.pacourts.us/OpPosting/Cwealth/out/2459CD11_9-7-12.pdf
In employment cases, an individual receiving wages for his services is presumed to be an employee, and the employer bears a heavy burden to overcome that presumption. Thomas Edison State Coll. v. UCBR, 980 A.2d 736, 741 (Pa. Cmwlth. 2009). To overcome this statutory presumption of employment, the employer must show that the individual performed the work free from the employer's control and direction, and that the work was done for others, not just the employer, as part of an independent trade. Sharp Equip. Co. v. UCBR, 808 A.2d 1019 (Pa. Cmwlth. 2006). “[U]nless the employer can show that the employee [is] not subject to his control and direction and [is] engaged in an independent trade, occupation or profession, then [the worker is an employee].” C.A. Wright Plumbing Co. v. UCBR, 293 A.2d 126, 129 (Pa. Cmwlth. 1972) (en banc); see also Sharp; Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).
We hold that Employer did not overcome the strong presumption of Claimant’s status as an employee. While we question the Board’s determination regarding Employer’s purported control over Claimant, it is clear the Board erred in its resolution of the second prong involving an independent trade or business.
The Board’s only analysis of the two-prong test consists of three sentences: "The claimant worked pursuant to the independent contractor agreement both under the contract of service and in fact. The claimant had an independent business as an independent contractor. Therefore, the claimant was an independent contractor." The Board’s only finding related to his status as an independent contractor is a finding of fact that Claimant "could work for other contractors as long as there was no conflict of interest." The fact that Claimant signed a consulting contract is not dispositive of the work relationship. Nevertheless, the Board’s decision appears to rely entirely upon the existence of the consultant contract.
In considering the second prong of the test, we examine whether: (1) the claimant was capable of performing the activities in question for anyone who wished to avail themselves of his services; and, (2) the nature of the business compelled the claimant to look to only a single employer for continuation of work. Venango.
This Court recently emphasized the importance of an employer supplying evidence to show that a claimant is engaged in an independent business in Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa. Cmwlth 2012). Similarly, and significantly, the record here lacks any evidence that Claimant customarily engaged in an independent business or performed programming services for any other business. As in Minelli and Sharp, Claimant’s testimony is clear that he was not so engaged, and there is no contrary evidence. The single act of signing the consulting contract here does not suffice. Sharp. The contract language providing that Claimant could work for others does not establish that he engaged in an independent business, and did work for others. Minelli. Moreover, the scope of work requires Claimant to work in Employer’s offices during specified business hours, thus undermining his ability to work for others. See Sharp. The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.
-------------------
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.
http://www.pacourts.us/OpPosting/Cwealth/out/2459CD11_9-7-12.pdf
In employment cases, an individual receiving wages for his services is presumed to be an employee, and the employer bears a heavy burden to overcome that presumption. Thomas Edison State Coll. v. UCBR, 980 A.2d 736, 741 (Pa. Cmwlth. 2009). To overcome this statutory presumption of employment, the employer must show that the individual performed the work free from the employer's control and direction, and that the work was done for others, not just the employer, as part of an independent trade. Sharp Equip. Co. v. UCBR, 808 A.2d 1019 (Pa. Cmwlth. 2006). “[U]nless the employer can show that the employee [is] not subject to his control and direction and [is] engaged in an independent trade, occupation or profession, then [the worker is an employee].” C.A. Wright Plumbing Co. v. UCBR, 293 A.2d 126, 129 (Pa. Cmwlth. 1972) (en banc); see also Sharp; Venango Newspapers v. UCBR, 631 A.2d 1384 (Pa. Cmwlth. 1993).
We hold that Employer did not overcome the strong presumption of Claimant’s status as an employee. While we question the Board’s determination regarding Employer’s purported control over Claimant, it is clear the Board erred in its resolution of the second prong involving an independent trade or business.
The Board’s only analysis of the two-prong test consists of three sentences: "The claimant worked pursuant to the independent contractor agreement both under the contract of service and in fact. The claimant had an independent business as an independent contractor. Therefore, the claimant was an independent contractor." The Board’s only finding related to his status as an independent contractor is a finding of fact that Claimant "could work for other contractors as long as there was no conflict of interest." The fact that Claimant signed a consulting contract is not dispositive of the work relationship. Nevertheless, the Board’s decision appears to rely entirely upon the existence of the consultant contract.
In considering the second prong of the test, we examine whether: (1) the claimant was capable of performing the activities in question for anyone who wished to avail themselves of his services; and, (2) the nature of the business compelled the claimant to look to only a single employer for continuation of work. Venango.
This Court recently emphasized the importance of an employer supplying evidence to show that a claimant is engaged in an independent business in Minelli v. Unemployment Compensation Board of Review, 39 A.3d 593 (Pa. Cmwlth 2012). Similarly, and significantly, the record here lacks any evidence that Claimant customarily engaged in an independent business or performed programming services for any other business. As in Minelli and Sharp, Claimant’s testimony is clear that he was not so engaged, and there is no contrary evidence. The single act of signing the consulting contract here does not suffice. Sharp. The contract language providing that Claimant could work for others does not establish that he engaged in an independent business, and did work for others. Minelli. Moreover, the scope of work requires Claimant to work in Employer’s offices during specified business hours, thus undermining his ability to work for others. See Sharp. The test an employer must satisfy to overcome the presumption of an employment relationship is simply not met here.
-------------------
The opinion, though not reported, may be cited "for its persuasive value, but not as binding precedent." 210 Pa. Code § 67.55. Citing Judicial Opinions.
Thursday, September 06, 2012
Juvenile - notice of adjud. of delinquency to "school" includes colleges and universities
In the Interest of S.D., a minor - Superior Court - September 5, 2012
http://www.pacourts.us/OpPosting/Superior/out/s36029_12.pdf
Provision of Juvenile Act, 42 Pa.C.S.A. § 6341(b.1), which requires notice to minor's school of adjudication of delinquency, requires notice to colleges and universities as well as other schools.
http://www.pacourts.us/OpPosting/Superior/out/s36029_12.pdf
Provision of Juvenile Act, 42 Pa.C.S.A. § 6341(b.1), which requires notice to minor's school of adjudication of delinquency, requires notice to colleges and universities as well as other schools.
Wednesday, September 05, 2012
frivolous litigation - pro se plaintiff - Rule 233.1
Gray v. Buonopane - Superior Court - August 22, 2012
http://www.pacourts.us/OpPosting/Superior/out/s28004_12.pdf
Discussion of Rule 233.1 - frivolous litigation, pro se plaintiffs, motion to dismiss.
admin. law - burden of proof - procedure where non-burdened party does not appear
V.W. v. DPW - Cmwlth. Court - August 24, 2012
http://www.pacourts.us/OpPosting/Cwealth/out/1894CD11_8-24-12.pdf
Dismissal of appeal from decision in child abuse expungement case reversed, where
a) DPW put on no evidence of abuse, and
b) appellant, the alleged abuser, had notice of the hearing and failed to appear.
Under the relevant statute and case law, DPW had the burden of proving abuse, but presented no evidence, relying entirely on the appellant's non-appearance.
Generally, "the burden of proof … rests upon the party who … asserts the affirmative of an issue"; thus, "one alleging a fact … has the burden of establishing it." Lincoln Intermediate Unit #12 v. Bermudian Springs Sch. Dist., 441 A.2d 813, 815 (Pa. Cmwlth. 1982) [quoting Hervitz v. New York Life Ins. Co., 52 A.2d 368, 369 (Pa. Super. 1947)]. In Lee v. DPW, 523 A.2d 1188 (Pa. Cmwlth. 1987), the owner of the nursing home appealed the Department's audits but failed to appear at a scheduled hearing without seeking continuance. The Court upheld the dismissal of the appeal, stating: "The petitioners bore the burden of proof before the Hearing Officer … and by virtue of their non-appearance, failed to present any evidence to support their challenges as to the audit appeals …. The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper." Id. at 1189-90 (citations omitted).
Unlike in Lee, CYS, not V.W. who failed to appear at the hearing, had the burden of proof at the scheduled hearing. Section 6341(c) of the Law provides that "[t]he burden of proof in the hearing shall be on the appropriate county agency." Under the heading "[h]earings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," 55 Pa. Code § 3490.106a(g) also provides that "[t]he burden of proof in hearings held under this section is on the appropriate county agency."
In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), the court concluded that because the Department had the burden of proof in a statutory license suspension appeal, it was required to present a prima facie case despite the nonappearance of the licensee and his counsel at the hearing, noting that "a Licensee may prevail without presenting any evidence whatsoever." Zawacki, 745 A.2d at 703. See also Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004).
The same rule should apply to this expungement proceeding, in which CYS had the burden of proving existence of substantial evidence supporting the indicated report of child abuse. The Bureau should have proceeded to hold a hearing despite V.W.'s nonappearance and to determine whether CYS met its burden. Hence, the Bureau erred in dismissing V.W.'s appeal as abandoned. Accordingly, we vacate the Bureau's order and remand this matter to the Bureau to hold a hearing and determine V.W.'s entitlement to expungement of the indicated report based on evidence presented by the parties at the hearing.
http://www.pacourts.us/OpPosting/Cwealth/out/1894CD11_8-24-12.pdf
Dismissal of appeal from decision in child abuse expungement case reversed, where
a) DPW put on no evidence of abuse, and
b) appellant, the alleged abuser, had notice of the hearing and failed to appear.
Under the relevant statute and case law, DPW had the burden of proving abuse, but presented no evidence, relying entirely on the appellant's non-appearance.
Generally, "the burden of proof … rests upon the party who … asserts the affirmative of an issue"; thus, "one alleging a fact … has the burden of establishing it." Lincoln Intermediate Unit #12 v. Bermudian Springs Sch. Dist., 441 A.2d 813, 815 (Pa. Cmwlth. 1982) [quoting Hervitz v. New York Life Ins. Co., 52 A.2d 368, 369 (Pa. Super. 1947)]. In Lee v. DPW, 523 A.2d 1188 (Pa. Cmwlth. 1987), the owner of the nursing home appealed the Department's audits but failed to appear at a scheduled hearing without seeking continuance. The Court upheld the dismissal of the appeal, stating: "The petitioners bore the burden of proof before the Hearing Officer … and by virtue of their non-appearance, failed to present any evidence to support their challenges as to the audit appeals …. The petitioners, therefore, must be held to have failed to carry their burden, thus rendering the dismissal proper." Id. at 1189-90 (citations omitted).
Unlike in Lee, CYS, not V.W. who failed to appear at the hearing, had the burden of proof at the scheduled hearing. Section 6341(c) of the Law provides that "[t]he burden of proof in the hearing shall be on the appropriate county agency." Under the heading "[h]earings and appeals proceedings for indicated reports received by ChildLine after June 30, 1995," 55 Pa. Code § 3490.106a(g) also provides that "[t]he burden of proof in hearings held under this section is on the appropriate county agency."
In Zawacki v. Department of Transportation, Bureau of Driver Licensing, 745 A.2d 701 (Pa. Cmwlth. 2000), the court concluded that because the Department had the burden of proof in a statutory license suspension appeal, it was required to present a prima facie case despite the nonappearance of the licensee and his counsel at the hearing, noting that "a Licensee may prevail without presenting any evidence whatsoever." Zawacki, 745 A.2d at 703. See also Commonwealth v. 1992 Chevrolet, 844 A.2d 583 (Pa. Cmwlth. 2004).
The same rule should apply to this expungement proceeding, in which CYS had the burden of proving existence of substantial evidence supporting the indicated report of child abuse. The Bureau should have proceeded to hold a hearing despite V.W.'s nonappearance and to determine whether CYS met its burden. Hence, the Bureau erred in dismissing V.W.'s appeal as abandoned. Accordingly, we vacate the Bureau's order and remand this matter to the Bureau to hold a hearing and determine V.W.'s entitlement to expungement of the indicated report based on evidence presented by the parties at the hearing.
Tuesday, September 04, 2012
civil procedure - dismissal for lack of service by sheriff
Fonzone v. Tribune Corp. - Superior Court - August 31, 2012
http://www.pacourts.us/OpPosting/Superior/out/a15039_12.pdf
Dismissal of case for lack of proper service affirmed.
Plaintiff/Appellant had complaint served other than by the sheriff. Other methods of service do not supplant Rule 401, which requires service to be made by a sheriff in most instances. There is nothing in the record showing service by the sheriff.
Appellant’s alternative argument, that service deficiencies are irrelevant where Appellees in fact had the complaint, are unavailing. As our Supreme Court has explained:
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. Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917-18 (Pa. 1997).
http://www.pacourts.us/OpPosting/Superior/out/a15039_12.pdf
Dismissal of case for lack of proper service affirmed.
Plaintiff/Appellant had complaint served other than by the sheriff. Other methods of service do not supplant Rule 401, which requires service to be made by a sheriff in most instances. There is nothing in the record showing service by the sheriff.
Appellant’s alternative argument, that service deficiencies are irrelevant where Appellees in fact had the complaint, are unavailing. As our Supreme Court has explained:
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. Without valid service, a court lacks personal jurisdiction of a defendant and is powerless to enter judgment against him or her. Thus, improper service is not merely a procedural defect that can be ignored when a defendant subsequently learns of the action against him or her. Cintas Corp. v. Lee's Cleaning Servs., 700 A.2d 915, 917-18 (Pa. 1997).
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