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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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also contends that the Rule requiring service by sheriff is outdated.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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