J-S63032-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARSHALL L. WILLIAMS, ESQUIRE,           :       IN THE SUPERIOR COURT OF
                                         :             PENNSYLVANIA
                 Appellant               :
                                         :
           v.                            :
                                         :
RAUL JAUREGUI, ESQUIRE,                  :
                                         :
                 Appellee                :           No. 574 EDA 2015

           Appeal from the Order entered on December 2, 2014
           in the Court of Common Pleas of Philadelphia County,
                  Civil Division, No. 02094 July Term 2013

BEFORE: DONOHUE, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                     FILED DECEMBER 10, 2015

     Marshall L. Williams, Esquire (“Williams”), appeals from the December

2, 2014 Order striking his Complaint filed against Raul Jauregui, Esquire

(“Jauregui”), and dismissing the action, with prejudice, for lack of proper

service. We affirm.

     The trial court summarized the relevant factual and procedural

background underlying this appeal as follows:

          The case that gave rise to the instant appeal started out
     when a client of [Jauregui] apparently fired him and retained
J-S63032-15

      [Williams.1] [Williams] filed a [Praecipe for] writ of summons
      [on] July 15, 2013[. This was] followed by a [C]omplaint [filed]
      on October 18, 2013[,] charging [Jauregui] with tortious
      interference with a business relationship, misuse and abuse of
      process,    infliction of    emotional   distress,   commercial
      disparagement, and requested punitive damages. The [alleged]
      tortious acts appear to have occurred in 2006 and 2007[,]
      although there are allegations of tortious conduct as late as
      2010.

             On November 7, 2013, the Honorable John Herron entered
      an [O]rder [] provid[ing] that if the [C]omplaint was not served
      within 60 days[, it] would be dismissed without prejudice.[2]
      [Williams] was ordered to appear on January 21, 2014[,] to
      show cause [as to] why the [C]omplaint should not be
      dismissed.

           [Williams] filed an affidavit of service on January [21],
      2014[,] which stated that[,] on January 16, 2014[,] he sent a
      copy of the [C]omplaint to [Jauregui] by certified mail.[3] The

1
   Prior to Williams’s initiation of the instant action, Jauregui had filed a
breach of contract action against the client, as well as a related action
against Williams, alleging tortious interference with a contractual
relationship. Concerning Jauregui’s action against Williams, after Williams
had failed to appear at scheduled pre-trial conferences and for trial, the trial
court entered a default judgment against Williams. In a Memorandum filed
on May 26, 2011, this Court thoroughly discussed the facts and procedural
history concerning Jauregui’s prior actions.      See Jauregui v. Udujih,
Ukogu, and Williams, 30 A.3d 549 (Pa. Super. 2011) (unpublished
memorandum at 1-5); see also id. at 12 (holding that “[w]hile we do not
sanction [Williams’s] continuous inability to appear or his pro[test]ations
that the trial court is misinforming this Court that [he] was notified of the
trial date, we are compelled to strike the [default] judgment and reverse.
By rule, the failure to appear at trial can result only in a judgment of non
pros or nonsuit against a plaintiff ….”).
2
  See Pa.R.C.P. 401(a) (providing that “[o]riginal process shall be served
within the Commonwealth within thirty days after the issuance of the writ or
the filing of the complaint.”).
3
  Williams attached to the affidavit of service a U.S. Postal Service certified
mail return receipt card (hereinafter “the mail return receipt”), which,
according to Williams, was signed by Jauregui upon his receipt of the
Complaint at his residence in Swarthmore, Pennsylvania.

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J-S63032-15

        January 21 court date was administratively cancelled because an
        affidavit of service had been filed.

              [Jauregui] filed a [M]otion to strike   service and dismiss the
        [C]omplaint [“Motion to dismiss”] on          November 3, 2014[,]
        claiming that service had not been made       in the manner required
        under P[a.]R.Civ.P. 402[,4] alleging           that [Williams] had
        committed a fraud on the court by filing      the affidavit of service,
        and requesting attorney fees.

             On the same day, [Jauregui] also filed an in forma
        pauperis letter [(hereinafter “the IFP Praecipe”)], alleging that
        he was the attorney for the party proceeding in forma pauperis,
        and that he believed that the party was unable to pay court

4
    Rule 402 provides as follows:

      (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.

      (b) In lieu of service under this rule, the defendant or his
      authorized agent may accept service of original process by filing a[n
      acceptance of service] document[.]

Pa.R.C.P. 402. In support of his request that the Complaint be stricken,
Jauregui (1) pointed out that Rule 402 does not provide for service by
certified mail; and (2) denied ever receiving the Complaint via certified mail,
or by any other means. See Memorandum in Support of Motion to Dismiss,
11/3/14, at 1-2 (unnumbered).

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     costs. The so-called party was[,] in fact[, Jauregui].[FN 1] There
     were no supporting financial documents filed with the [IFP
     Praecipe].
          [FN 1]
                [Jauregui’s] accompanying [M]otion to dismiss was
          signed by Tannia Jauregui, Esq. [(“Tannia”),] who
          [Williams] has alleged is [Jauregui’s] wife[, and] who
          resides with [Jauregui,] in Swarthmore, PA.

            On November 6, 2014[, i.e., over one year after initially
     filing the Complaint, Williams] filed a [P]raecipe to reinstate the
     [C]omplaint.[5]   On November 24, 2014[, Williams] filed an
     [A]nswer to [Jauregui’s M]otion to dismiss the [C]omplaint[,] in
     which he claimed that [Jauregui] was in default and subject to a
     default judgment for not answering the [C]omplaint[. Williams
     additionally alleged] that [Jauregui] had been served with the
     [C]omplaint because he had signed for it,[FN 2] [and] that
     [Jauregui’s] allegations that the court did not have jurisdiction
     over [Jauregui] because the [C]omplaint had not been served
     were defamatory. Finally, [Williams] included a proposed order
     that would permit him to serve the [C]omplaint pursuant to
     P[a.]R.Civ.P. 430.[6]
          [FN 2]
                Apparently[,] by signing the mail return receipt.
          [Jauregui] denies that he signed anything.

           On December 2, 2014, the [trial] court dismissed the
     case[,] with prejudice[,] for lack of service[,] and denied
     [Jauregui’s] request for attorney fees.

           [Williams] filed a [Motion] for reconsideration on December
     17, 2014[,] alleging that the Sheriff of Delaware County [had]
     attempted to serve [Jauregui,] at his last known address of 307
     Riverview Road, Swarthmore, PA 19081[,] on December 4,
5
  The trial court did not specifically rule upon Williams’s Praecipe. Rather,
the court impliedly denied it by the subsequent entry of its December 2,
2014 Order dismissing Williams’s action.
6
  Rule 430 provides, in relevant part, that “[i]f service cannot be made
under the applicable rule[,] the plaintiff may move the court for a special
order directing the method of service. The motion shall be accompanied by
an affidavit stating the nature and extent of the investigation which has been
made to determine the whereabouts of the defendant and the reasons why
service cannot be made.” Pa.R.C.P. 430(a).

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J-S63032-15

      2014.[7] [Williams] requested that the [C]omplaint be reinstated
      and that [Jauregui] be ordered to file an answer within twenty
      days or suffer a default judgment.

Trial Court Opinion, 3/12/15, at 1-3 (footnotes added; other footnotes in

original; some footnotes omitted).

      The trial court denied Williams’s Motion for reconsideration, after which

Williams timely filed a pro se Notice of Appeal.8 While the trial court did not

order Williams to file a Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal, it issued a Rule 1925(a) Opinion, stating, in

relevant part, as follows:

      Service in the instant case was not made in conformity with the
      applicable court rules. [Williams] did not file a motion to serve
      [Jauregui] by special order of court pursuant to P[a.]R.Civ.P.
      430. From the inception of this case in July 2013[,] to its
      dismissal in December 2014, there was only one indication of an
      attempt to serve [Jauregui] by means that would have been
      proper[, i.e., the failed attempt to serve Jauregui made by the
      Sheriff on December 4, 2014,] had the court not already
      dismissed the [C]omplaint on December 2, 2014.

7
  Williams attached to the Motion an Affidavit of Service form completed by
the Sheriff. This form stated that service was not made, as there was no
response at the door to the residence.
8
  Although Williams filed his Notice of Appeal more than 30 days from the
entry of the December 2, 2014 Order, the Notice of Appeal was timely filed
on January 5, 2015. See Pa.R.A.P. 903(a) (mandating that appeals from
the lower courts must be filed within 30 days of the entry of the order
appealed from). Our Prothonotary contacted the Prothonotary Office of the
Court of Common Pleas of Philadelphia County (“lower court prothonotary”)
concerning the timeliness of this appeal, and discovered that the lower court
prothonotary was closed between January 1, 2015, and January 4, 2015, for
a court holiday and weekend closure. See Pa.R.C.P. 106(b) (providing that
“[w]henever the last day of any such period shall fall on Saturday or
Sunday, or on any day made a legal holiday by the laws of this
Commonwealth or of the United States, such day shall be omitted from the
computation.”).

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J-S63032-15


Trial Court Opinion, 3/12/15, at 3-4. Importantly, the trial court additionally

found that Williams had not acted in good faith to effectuate service of the

Complaint. Id. at 4.

      On appeal, Williams presents the following issues for our review:

      1. Did the trial court commit an error of law or abuse its
         discretion by dismissing [Williams’s] re-instated [C]omplaint
         with prejudice[,] based upon [Jauregui’s] allegation of “lack of
         service”?

      2. Whether the trial court committed an error of law or abused
         its discretion when it failed to issue an order for alternative
         service of [Williams’s] pleadings upon [Jauregui]?

      3. Did the trial court’s subject matter jurisdiction[,] and its
         jurisdiction over the parties[,] attach upon [Jauregui’s] filing
         as the attorney for himself, the client, a praecipe waive [sic]
         the filing fees in forma pauperis for his [M]otion to dismiss
         [Williams’s] case[,] when his attorney of record [was] Tannia
         []?

      4. Did [Jauregui’s] failure to file preliminary objections regarding
         his allegations of lack of service of process constitute a waiver
         of the objection?

      5. Whether the trial court abused its discretion when it denied
         [Williams’s M]otion for reconsideration on December 19,
         2014?

Brief for Appellant at 4.

      Service of process is the mechanism by which a court obtains

jurisdiction over a defendant. Sharp v. Valley Forge Med. Ctr. & Heart

Hosp., Inc., 221 A.2d 185, 187 (Pa. 1966). The “fil[ing of a] complaint

within the time permitted by the applicable statute of limitations … is not the

only requirement for correctly commencing a lawsuit.        Service of process


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J-S63032-15

must also be properly effectuated.” Cahill v. Schults, 643 A.2d 121 (Pa.

Super. 1994). Additionally, “[t]he rules relating to service of process must

be strictly followed[.]”   Sharp, 221 A.2d at 187; see also U.K. LaSalle,

Inc. v. Lawless, 618 A.2d 447, 449 (Pa. Super. 1992). 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.    Sharp, 221 A.2d at 187.      Improper service is not merely a

procedural defect that can be ignored, even where a defendant subsequently

learns of the action against him or her.    Cintas Corp. v. Lee’s Cleaning

Serv., Inc., 700 A.2d 915, 918 (Pa. 1997).

      In his first issue, Williams argues that the trial court erred by

dismissing his action, since Jauregui did not show how he had been

prejudiced by the defective service of process.     Brief for Appellant at 11.

Additionally, according to Williams, pursuant to our appellate case law, the

trial court should have set aside the defective service, rather than dismiss

his Complaint with prejudice. Id. at 12 (citing Fox v. Thompson, 546 A.2d

1146, 1149 (Pa. Super. 1988) (holding that the trial court erred in

dismissing the plaintiffs’ complaint for failure to make service alone, and that

the court should have given the plaintiffs an opportunity to reinstate their

complaint)); see also Frycklund v. Way, 599 A.2d 1332, 1335 (Pa. Super.

1991), (holding that “[w]here service of process is defective, … the remedy

is to set aside the service.   The action, however, remains; and, if plaintiff




                                  -7-
J-S63032-15

can properly bring defendant on the record, the original action may be

pursued.”).

      In Fox, supra, the plaintiffs instituted a personal injury action against

the defendant by filing a writ of summons.      Fox, 546 A.2d at 1146.       The

Sheriff attempted to serve the writ at the defendant’s address listed on the

police report, but noted on the return of service that no such address

existed.   Id.   Approximately three months after the writ was filed, the

plaintiffs filed a complaint. Id. The defendant subsequently filed a motion

to strike the complaint for the plaintiffs’ failure to effectuate service.   Id.

The trial court granted the defendant’s motion to strike, after which the

plaintiffs appealed.

      In holding that the trial court had erred and abused its discretion, this

Court stated as follows:

      The only explanation given by the trial court for granting the
      [defendant’s] motion to strike was that the [plaintiffs] failed to
      properly serve the defendant in accordance with Pa.R.C.P. 402.
      However, Pa.R.C.P. 402 should be considered together with
      Pa.R.C.P. 401[,] which provides in pertinent part that “a writ
      may be reissued or a complaint reinstated at any time and any
      number of times.” Pa.R.C.P. 401(b)(2).

           Indeed[,] a party may reinstate a complaint or reissue a
           writ of summons “at any time or any number of times,”
           although a late reinstatement will be subject to the
           statute of limitations. The party who files the initial
           process bears the burden of acting to ensure its
           continued efficacy. Katz v. Greig, 234 Pa.Super. 126,
           339 A.2d 115 (1975) [].            In applying these
           reinstatement rules, our courts have consistently
           considered irrelevant both the time the filing party
           became aware the sheriff could not serve process and
           the time the original cause of action arose. Rather,

                                  -8-
J-S63032-15

          once a party files process with the prothonotary, the
          party has been allotted a fixed time equal to the statute
          of limitations to either file new process, or risk losing
          the action to the bar of the statute of limitations.

     Wible v. Apanowicz, 306 Pa.Super. 262, 452 A.2d 545 (1982);
     see also Washington v. Papa, 253 Pa.Super. 293, 384 A.2d
     1350 (1978).

            “The suit is not dead merely because the complaint has not
     been served within thirty days of its filing.” Lauterbach v.
     Lauterbach, 202 Pa.Super. 260, 195 A.2d 159 (1963). Under
     Pa.R.C.P. 401(b), the complaint may be reinstated without
     requiring that the [plaintiffs] commence a new lawsuit. Sherry
     v. Trexler-Haines Gas, Inc., 373 Pa.Super. 330, 541 A.2d 341
     (1988). The [plaintiffs] properly followed all the necessary
     procedures in keeping their cause of action alive. The [plaintiffs]
     filed the praecipe for writ of summons and request for service on
     October 15, 1985. In so doing, they tolled the applicable statute
     of limitations, which would not have run until two years from
     that date. Wible, supra. The failure to complete service does
     not affect the [plaintiffs’] rights to reinstate the complaint within
     the statutory period. Rule 401 clearly provides that a complaint
     [that] is not served within thirty [] days of issuance may be
     reinstated. Although service made after the expiration of the
     thirty [] days may be considered void, failure to serve the
     complaint within that period does not render the complaint a
     nullity. [] See Bowman v. Mattei, 309 Pa.Super. 486, 455
     A.2d 714 (1983). Based upon the foregoing, we conclude that
     the trial court erred in granting [the defendant’s] motion to
     strike the complaint on the basis that [the plaintiffs] failed to
     effectuate service.

Fox, 546 A.2d at 1148-49 (footnote and brackets omitted).              Notably,

however, the Fox Court specifically observed that the trial court made no

finding as to whether the plaintiffs had failed to act in good faith to

effectuate service. Id. at 1149 n.1.




                                  -9-
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      In Cahill, supra, this Court addressed the impact of Fox in a situation

where the trial court found a lack of good faith by the plaintiff in attempting

to make service:

      “Unless a party applies to a court for an extension of time in
      which to serve original process, or unless the parties agree to
      waive the thirty-day time restriction, a writ or complaint will be
      ‘dead’ at the expiration of 30 days. However, if such a party has
      actively tried to attempt service, a writ or complaint may be
      reissued or reinstated and then served.” Goodrich-Amram 2d
      § 401(a):1 [(emphasis added)]; see [also] Pa.R.C.P. 401(b).
      Because we conclude that [plaintiff] has not met his good faith
      burden of effectuating service [of] the original complaint, we will
      not allow the reinstated complaint and subsequent service to
      provide [plaintiff] with a second chance to properly institute his
      lawsuit. This is what Lamp[9] and its progeny attempts to
      prevent. While there is case law which states that a law suit is
      not dead when there is a failure to serve a complaint within
      thirty days of its filing, see Fox …, 546 A.2d at 1148 []; Smith
      v. City of Philadelphia, 148 Pa. Commw. 84, , 609 A.2d 873,
      875 (1992), there are no allegations and no evidence in those
      cases that the plaintiffs failed to meet their good faith effort
      pursuant to Lamp.

Cahill, 643 A.2d at 124 n.7 (footnote and emphasis added).


9
  See Lamp v. Heyman, 366 A.2d 882, 889 (Pa. 1976) (holding that “a writ
of summons shall remain effective to commence an action only if the plaintiff
then refrains from a course of conduct which serves to stall in its tracks the
legal machinery he has just set in motion.”); see also Farinacci v. Beaver
County Indus. Dev. Auth., 511 A.2d 757, 759 (Pa. 1986) (holding that
“Lamp requires of plaintiffs a good-faith effort to effectuate notice of
commencement of the action[,]” and stating that a determination that a
plaintiff has not acted in good faith is committed to the discretion of the trial
court, and will not be disturbed on appeal absent an abuse of that
discretion); see also McCreesh v. City of Philadelphia, 888 A.2d 664,
665, 672 (Pa. 2005) (clarifying what constitutes a “good-faith effort” under
Lamp and Farinacci); Bigansky v. Thomas Jefferson Univ. Hosp., 658
A.2d 423, 433 (Pa. Super. 1995) (stating that “although there is no
mechanical approach to be applied in determining what constitutes a good
faith effort, it is the plaintiff’s burden to demonstrate that his efforts were
reasonable.”).

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J-S63032-15

      Here, the trial court expressly found that Williams had not acted in

good faith in attempting to serve Jauregui.              See Trial Court Opinion,

3/12/15, at 4. We discern no abuse of the trial court’s sound discretion in

making this finding. See Farinacci, 511 A.2d at 759 (emphasizing that it is

within a trial court’s “sound discretion” to determine whether a good-faith

effort to effectuate service was made). Accordingly, as was the situation in

Cahill, supra, because we determine that Williams did not meet his good

faith burden of effectuating service on Jauregui, the trial court did not abuse

its discretion in striking the Complaint, rather than setting aside the

defective service.    Accordingly, Williams’s reliance upon Fox, supra, and

Frycklund, supra, is misplaced, as there was no finding of a lack of good

faith by the plaintiffs in those cases.

      Moreover, contrary to Williams’s claim, an inquiry into prejudice to

Jauregui was unnecessary under the circumstances of this case, given the

trial court’s finding that Williams had failed to act in good faith by stalling

the action.    See, e.g., McCreesh, 888 A.2d at 674 (stating that the

plaintiffs’ claims could be dismissed, for lack of service of original process,

only where “plaintiffs have demonstrated an intent to stall the judicial

machinery or where plaintiffs’ failure to comply with the Rules of Civil

Procedure has prejudiced defendant.”) (emphasis added).               Accordingly,

Williams is not entitled to relief on his first issue.

      Next, Williams asserts that the trial court improperly granted the

Motion to dismiss where Jauregui had allegedly accepted service of the

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Complaint by signing the mail return receipt. See Brief for Appellant at 14-

16; see also id. at 14 (arguing that Williams “was compelled to notify

[Jauregui] by certified mail after [Jauregui had] evaded personal service in

Delaware County.”).

      Even assuming that Jauregui had signed the mail return receipt and

received the Complaint, this is still not proper service.

      Sending initial process by certified mail, rather than by the
      sheriff, is improper. See Mooney v. Borough of West Mifflin,
      134 Pa. Commw. 557, 578 A.2d 1384 (1990) (delivery of a
      complaint by certified mail rather than service by the sheriff was
      unacceptable and was not cured by service of an amended
      complaint after the expiration of the statutory period); Pa.R.C.P.
      400(a). Moreover, this court has held that “attempted service
      by anyone else [other than the sheriff] -- even a duly elected
      constable -- does not constitute effective service.” Vogel v.
      Kutz, 348 Pa. Super. 133, 501 A.2d 683 (1985).

Cahill, 643 A.2d at 125 (footnote omitted).         Therefore, Williams’s claim

lacks merit.

      In his third issue, Williams argues that “the trial court’s subject matter

jurisdiction[,] and its jurisdiction over the parties[,] attach[ed] upon

[Jauregui’s] filing as the attorney for himself, the client, a praecipe waive

[sic] the filing fees in forma pauperis for his [M]otion to dismiss [Williams’s]

case[,] when his attorney of record [was] Tannia[.]” Brief for Appellant at 4.

      Though Williams raised this issue in his Statement of Questions

Presented section, he does not provide a corresponding discussion of the

issue under a separate heading in the Argument section of his brief.       See

Pa.R.A.P. 2119(a) (requiring the appellant to divide the argument section



                                  - 12 -
J-S63032-15

into separate sections for each issue set forth in the statement of questions

presented, with distinctive headings for each such section).        Rather, he

briefly addresses it in connection with his first issue. See Brief for Appellant

at 12 (arguing that the trial court erred by considering Jauregui’s Motion to

dismiss because “[the IFP P]raecipe that [Jauregui] himself filed as his own

attorney was not valid because he, the client-attorney, represented to the

[trial c]ourt that he was his own attorney[,] when Tannia … filed the []

[M]otion to dismiss on the same day.”).

      Williams has not cited to any legal authority in support of his claim,

which merely consists of one paragraph of argument.             See Pa.R.A.P.

2119(a) (mandating that an appellant develop an argument with citation to

and analysis of relevant legal authority). Accordingly, because Williams has

failed to meaningfully develop this claim for our review, we deem it waived.

See Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (stating that

“[w]here an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.” (citation




                                 - 13 -
J-S63032-15

omitted)).10

      Next, Williams contends that the trial court erred by granting the

Motion to dismiss because Jauregui did not comply with the Rules of Civil

Procedure concerning the format in which he challenged the lack of service.

See Brief for Appellant at 17 (asserting that “[t]o dismiss a case for the

defective service of process, a defendant must file a preliminary objection

pursuant to [Pa.R.C.P.] 1028[].”)

      Williams is correct that where a party files preliminary objections, but

fails to raise therein a challenge to improper service, the party has waived

that claim. See Brief for Appellant at 18 (citing Silver v. Thompson, 26

A.3d 514, 517 n.6 (Pa. Super. 2011) (stating that “[p]er Pa.R.C.P.

1028(a)(1), preliminary objections may be filed for ‘improper form or service

of summons or a complaint[.]’       A party who fails to object to service of

process in preliminary objections waives that claim. Cinque v. Asare, 401

Pa. Super. 339, 585 A.2d 490 (Pa. Super. 1990).”).       In the instant case,

though Jauregui titled his objection as a Motion to dismiss, rather than a

preliminary objection under Rule 1028, he did object to the lack of service in

his Motion to dismiss, and therefore preserved his objection.      Unlike the

10
  Even if this claim was not waived, we would have determined that it lacks
merit. Our independent research discloses no support for Williams’s claim,
and Jauregui’s filing of the IFP Praecipe did not result in a waiver of any
objections to jurisdiction. See, e.g., Fleehr v. Mummert, 857 A.2d 683,
685 (Pa. Super. 2004) (stating that “[a] defendant manifests an intent to
submit to the court’s jurisdiction when the defendant takes some action
(beyond merely entering a written appearance) going to the merits of the
case, which evidences an intent to forego objection to the defective
service.”) (citation and quotation marks omitted).

                                 - 14 -
J-S63032-15

situation in Cinque, supra, where waiver was premised upon the fact that

the defendant had filed an answer to the complaint, without filing

preliminary objections to the manner of service, see Cinque, 585 A.2d at

492, Jauregui only filed the Motion to dismiss.11    We therefore deem any

defect in this regard by Jauregui to not be of such consequence to merit

waiver of a preserved objection.

      Finally, Williams argues that the trial court improperly granted the

Motion to dismiss where Jauregui had intentionally “conceal[ed] his

whereabouts or where [he] could be served with process[, which] prevented

effective service of process.”     Brief for Appellant at 19.    According to

Williams, he “will be unduly prejudiced if this Court does not permitted [sic]

alternate service pursuant to Pa.R.C.P[.] 430.” Brief for Appellant at 22.

      We lack the information in the certified record to either confirm or

deny Williams’s assertions concerning Jauregui’s alleged concealment.

Moreover, the trial court did not make any findings in this regard, and it is

not within our purview to make factual findings.      Accordingly, we cannot

grant Williams relief on this claim.

      Order affirmed.




11
   Additionally, this Court in Silver, supra, did not find waiver of the
appellant’s claims based upon the holding announced in Cinque. See
Silver, 26 A.3d at 517 n.6.

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J-S63032-15

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/10/2015




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