Superior court sends Discover Card case back to trial court

By Dee Thompson | Oct 5, 2017

HARRISBURG - Debra Collins claims she was never properly served with the lawsuit filed against her in 2009 by Discover Card, and the Superior Court of Pennsylvania has now sent the matter back to the trial court.

The case of Discover Card v. Dorothy M. Collins and Debra A. Collins was appealed from an order dated July 18, 2016 in the Court of Common Pleas in Fayette County that had denied Debra Collins’ petition to strike/open default judgment.

The superior court ruled the trial court applied the wrong standard when it denied the motion and vacated it for further proceedings Sept. 20.

According to the court's opinion, the original case was filed by Discover Card by its agent Discover Financial Services on Aug. 8, 2008. The sheriff returned service saying defendants were not found; Dorothy Collins was deceased and Debra Collins had moved. 

The complaint was reinstated in 2009 and a deputy sheriff filed an affidavit saying he personally served Collins on Sept. 2, 2009 by handing her the complaint. 

“The 10-day notice of intention to enter the default judgment was later mailed to [Collins’] actual address at the time, 1260 Connellsville Road, Lemont Furnace, Fayette County, Pennsylvania, on Nov. 5, 2009. When [Collins] failed to respond judgment by default was entered on Dec. 1, 2009, but no address for the notice of entry of the judgment is set forth on the docket,” according to the court's Sept. 20 opinion. 

A writ of revival was served on Collins on March 15, 2016 at 204 Edison St., Uniontown. Collins claimed that was the first she knew of the suit. She claimed she was never served with the original complaint and had lived for years at a different address.

“Collins contends that while the sheriff’s return of service indicates she was personally served at her 'current address,' that was not possible because she has not lived at this address since 1985 and because she was at work at the day and time service was completed,” the opinion states.

Collins raised the issue of whether the sheriff had knowledge that the residence where he served the petition was actually her residence, the opinion states.

“In denying Collins’ petition to strike, the trial court accepted as conclusive the sheriff’s return in its entirety,” the opinion states.

The court noted, “Whether Collins was the person the sheriff served and whether the Edison address was Collins’ then -- current residence were not matters within the sheriff’s personal knowledge and, thus, were not immune from attack... Therefore, the trial court erred in giving conclusive effect to those facts in the return and in failing to consider the testimony and other extrinsic evidence presented by Collins to rebut the validity of the return.”

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