Williams, M. v. Jauregui, R. ( 2015 )


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  • 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    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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    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).
    -4-
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    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.”).
    -5-
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    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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    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
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    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,
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    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.”).
    - 10 -
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    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 -
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    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 -
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    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).
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    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
    - 16 -