Tricome, D. v. LaRiviere, P.

• Court: Superior Court of Pennsylvania
• Decided: August 27, 2014
• Docket: 3161 EDA 2013
• Status: Unpublished

Opinion

J-A20034-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DOMENIC TRICOME, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : PAUL LaRIVIERE, GMP : NUTRACEUTICALS, INC., : : Appellees : No. 3161 EDA 2013

Appeal from the Order entered on October 4, 2013 in the Court of Common Pleas of Chester County, Civil Division, No. 2012-04325

BEFORE: FORD ELLIOTT, P.J.E, MUNDY and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 27, 2014

pro se, from the Order

Tricome filed a Complaint against the Appellees alleging that LaRiviere,

formerly a vice-president of All the Whey, Inc., committed bank fraud,

embezzlement, stock fraud, fraud, and breach of contract. Tricome, who

founded in part and directed All the Whey, Inc., further alleged that

n of the company and the depletion

Ground

The Appellees filed Preliminary Objections requesting dismissal of the

Complaint for improper service. The trial court J-A20034-14

Preliminary Objections and dismissed the Complaint. Tricome filed a timely

Notice of Appeal.

On appeal, Tricome raises the following questions for our review:

1. If a plaintiff does not have the money to pay for service of the [C]ompl and if the defendant signed for receipt of the [C]omplaint by a carrier other than a sheriff, and if the defendant states in the preliminary objections that they received the [C]omplaint, is the service of the complaint valid?

2. If a plaintiff does not have the money to pay for a lawyer

understand the [C]omplaint, should the [C]omplaint be allowed to be amended?

3. If the trial court judge in two almost identical lawsuits makes two opposite decisions within weeks, should the Superior Court of Pennsylvania automatically grant the [a]ppeal?

Brief for Appellant at 1-2.1

In his first claim, Tricome contends that the trial court erred when it

liminary Objections for improper service of the

Complaint, as he could not afford service by a sheriff. Id. at 3. Tricome

also contends that the Rule requiring service by sheriff is outdated. Id.

Further, Tricome argues that service by sheriff should not be required

because the intention of the Rule is simply that the complaint is received.

Id.

1 Argument section is inconsistent with the questions raised in the Statement of Questions, in violation of Pennsylvania Rules of Appellate Procedure. See Pa.R.A.P. 2116(a); Pa.R.A.P. 2119(a). However, we will address the claims as argued in the Argument section.

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Our standard of review on these matters is well settled:

Our standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.

[] When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. 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. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.

Joyce v. Erie Ins. Exch., 74 A.3d 157, 162 (Pa. Super. 2013).

original process shall be

Pa.R.C.P. 400(a).

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.

, 700 A.2d 915, 917-918 (Pa.

1997) (citations omitted).

Here, Tricome concedes that service of process was delivered by

Federal Express Ground and by email and not by the sheriff. Brief for

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deficie

Fonzone v. Tribune Corp., 52 A.3d 375, 376 (Pa. Super. 2012). Thus as

Tricome did not properly serve the Appellees, the trial court did not err in

In his second claim, Tricome contends that the trial court should have

allowed him to amend his Complaint because it would not prejudice the

Appellees. Brief for Appellant at 3. Tricome states that the trial court

allowed him to amend his Complaint in a separate case, where he had failed

to provide proper service of his Complaint. Id.

Initially, Tricome has failed to present any case law in support of his

argument. See Pa.R.A.P. 2119(a); see also Lackner v. Glosser, 892 A.2d

21, 29-30 (Pa. Super. 2006) (citing Pa.R.A.P. 2119 for rule that failure to

cite pertinent authority results in waiver). In any event, Tricome never

sought to file an amended complaint after the Appellees filed the Preliminary

Objections. See

amended pleading as of course within twenty days after service of a copy of

second claim.

In his third claim, Tricome argues that, because he was allowed to

amend his complaint in a similar case against other defendants, this case

should be consolidated with that case. Brief for Appellant at 3-4.

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Again, Tricome has not demonstrated by pertinent analysis or citation

to relevant authority that the two cases should be joined. See Pa.R.A.P.

2119(a); see also Lackner, 892 A.2d at 29-30. Indeed, Tricome only

undeveloped argument, we cannot grant him relief on his third claim. See

Miller v. Miller

the [a]ppellant who has the burden of establishing his entitlement to relief

by showing that the ruling of the trial court is erroneous under the evidence 2

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/27/2014

2 To the extent Tricome raises any additional claims, he is not entitled to relief.

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