J. Salih v. County of Allegheny Office of D.A.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joel Salih, :

:

Appellant :

:

v. : No. 1524 C.D. 2018

: Submitted: March 29, 2019

County of Allegheny Office :

of District Attorney, the City :

of McKeesport, and Police :

Sergeant Derek Stitt :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE ROBERT SIMPSON, Judge1

HONORABLE MICHAEL H. WOJCIK, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION

BY JUDGE WOJCIK FILED: January 23, 2020

Joel Salih (Appellant) appeals pro se from the August 6, 2018 order of

the Court of Common Pleas of Allegheny County (trial court) sustaining the

preliminary objections filed by the City of McKeesport and Police Sergeant Derek

Stitt (together, Appellees) and dismissing Appellant’s complaint with prejudice.

We affirm.

On December 6, 2017, Appellant filed a civil complaint under

42 U.S.C. §1983 (Section 1983) against Appellees and the County of Allegheny

1

This matter was assigned to this panel before September 1, 2019, when Judge Simpson

assumed the status of senior judge and was decided before Judge Simpson’s service on the Court

ended on December 31, 2019.

Office of District Attorney (County), alleging that Appellees violated his

constitutional rights when he was arrested on November 16, 2016, without

probable cause. On March 29, 2018, Appellant filed a praecipe to discontinue the

case without prejudice against the County.

Appellant filed proof of service on April 6, 2018, certifying that the

complaint had been served on Appellees as of April 5, 2018, by United States mail,

pursuant to Pa. R.C.P. No. 403(1).2 Original Record at 8. On May 14, 2018,

Appellant filed a praecipe to enter default judgment. Attached as an exhibit to the

praecipe was a copy of a December 11, 2017 letter from Appellant addressed to the

Allegheny County Sheriff’s Office requesting service of the complaint pursuant to

Pa. R.C.P. No. 400.

On May 25, 2018, Appellees filed preliminary objections asserting (1)

a lack of jurisdiction based on Appellant’s failure to serve Appellees in accordance

2

Pa. R.C.P. No. 403(1) states:

If a rule of civil procedure authorizes original process to be served

by mail, a copy of the process shall be mailed to the defendant by

any form of mail requiring a receipt signed by the defendant or his

authorized agent. Service is complete upon delivery of the mail.

(1) If the mail is returned with notation by the postal authorities

that the defendant refused to accept the mail, the plaintiff shall

have the right of service by mailing a copy to the defendant at the

same address by ordinary mail with the return address of the

sender appearing thereon. Service by ordinary mail is complete if

the mail is not returned to the sender within fifteen days after

mailing.

Pa. R.C.P. No. 403(1).

2

with Pa. R.C.P. No. 400 (service by the sheriff)3 or to reinstate the complaint,4 and

(2) legal insufficiency of Appellant’s claim for false arrest where Appellant was

found guilty of all charges on January 25, 2018. Pa. R.C.P. No. 1028(a)(1), (a)(4).

By order dated August 6, 2018, the trial court sustained the preliminary objections

on both grounds and dismissed Appellant’s complaint with prejudice.

The trial court stated that the only proof of service of record was filed

on April 6, 2018, five months after the complaint was filed. The proof of service

states that the complaint was served by United States mail, rather than by the

sheriff as required under Pa. R.C.P. No. 400. The trial court also noted that the

complaint was never reinstated. The trial court concluded that it lacked personal

jurisdiction over Appellees based on Appellant’s failure to properly serve

Appellees via the sheriff.5

Additionally, the trial court determined the complaint was legally

insufficient to state a claim under Section 1983 based on false arrest. The trial

court explained that a claim for false arrest under the Fourth Amendment arises

when an arrest has been made without probable cause, and probable cause is

3

Pa. R.C.P. No. 400(a) states, “Except as provided in subdivisions (b) and (c) and in

Rules 400.1 and 1930.4, original process shall be served within the Commonwealth only by the

sheriff.”

4

See Pa. R.C.P. No. 401 (requiring service be made within thirty days after the filing of a

complaint and authorizing reissuance or reinstatement of original process when service is not

made timely).

5

The trial court acknowledged Appellant’s assertion that his praecipe for default

judgment reflects his attempt to effectuate service upon Appellees by the sheriff in December

2017, but characterized the assertion that service was attempted as insufficient. Because we

affirm on other grounds, we do not address the trial court’s determination that it lacked personal

jurisdiction over Appellees.

3

conclusively established where, as here, the accused has been convicted of the

charges for which he was arrested.

On appeal,6 we first consider Appellant’s Statement of the Questions

Involved,7 which asks only, “Is what happened to [Appellant] a crime and if so

does this vacate the lower court’s order due to the court’s knowledge of

[Appellant’s] attempt to effect service of original process?” Appellant’s Brief at 2.

In the argument section of his brief, Appellant asserts that the sheriff tampered

with public records and that the sheriff’s criminal conduct caused the dismissal of

his complaint. This issue was not decided or raised before the trial court during the

civil proceedings on Appellant’s Section 1983 claim and will not be addressed for

the first time on appeal. See Pa. R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”); Siegfried v.

Borough of Wilson, 695 A.2d 892, 894 (Pa. Cmwlth. 1997) (“Rule 302(a) clearly

states that issues not raised in the trial court are waived and cannot be raised for the

first time on appeal.”). Further, an appellate court may sua sponte refuse to

address an issue raised on appeal that was not raised and preserved below. In Re

Lehigh County Constables, 172 A.3d 712, 717 (Pa. Cmwlth. 2017). Consequently,

we conclude that Appellant has failed to preserve any issue for our review. Pa.

R.A.P. 302(a); Pa. R.A.P. 2116.

Moreover, overlooking Appellant’s waiver of all appellate claims, we

discern no error in the trial court’s dismissal of Appellant’s complaint on the

6

Appellant filed an appeal with Superior Court, which, by order of October 9, 2018, sua

sponte transferred the matter to this Court.

7

Pa. R.A.P. 2116 states, “No question will be considered unless it is stated in the

statement of questions involved or is fairly suggested thereby.”

4

grounds that the facts averred in the complaint are legally insufficient to state a

claim for relief under Section 1983. This Court has explained:

To determine whether Appellant has stated a [Section]

1983 action:

[T]he initial inquiry must focus on whether the two

essential elements to a [Section] 1983 action are present:

(1) whether the conduct complained of was committed by

a person acting under color of state law, and (2) whether

this conduct deprived a person of rights, privileges or

immunities secured by the Constitution or laws of the

United States.

Uram v. County of Allegheny, 567 A.2d 753, 757 (Pa. Cmwlth. 1989).

Appellant’s claim for relief under Section 1983 is for false arrest. In

determining liability in a Section 1983 action based on a claim of false arrest, the

critical issue is whether the arresting officers had probable cause to believe the

person arrested had committed the offense. Wagner v. Waitlevertch, 774 A.2d

1247, 1253 (Pa. Super. 2001). “Probable cause for arrest exists when the facts and

circumstances are sufficient to warrant a reasonable person to believe that an

offense had been or is being committed by the person to be arrested.” Id. In

McGriff v. Vidovich, 699 A.2d 797, 800 (Pa. Cmwlth. 1997), this Court affirmed

the dismissal of actions for false arrest on the basis that probable cause was

conclusively established by the appellant’s guilty plea to the offenses for which he

was charged.

The appellant in McGriff was arrested and charged with burglary,

theft, and criminal mischief. After pleading guilty to those crimes, the appellant

filed two complaints against the arresting police officer alleging that the officer

prepared a false, misleading, and incomplete arrest warrant and acted

incompetently, leading to the appellant’s false arrest. The appellant

5

simultaneously filed a petition to proceed in forma pauperis. The trial court

determined that the complaints for false arrest could not be maintained because the

appellant pled guilty to the charges for which he was arrested. Consequently, the

trial court dismissed the complaints as frivolous.

On appeal to this Court, we cited our Superior Court’s decision in

Cosmas v. Bloomingdale Bros., Inc., 660 A.2d 83 (Pa. Super. 1995), an appeal

from the grant of summary judgment in a malicious prosecution action. The

Superior Court observed in Cosmas that Pennsylvania courts generally consider a

conviction to be conclusive proof of the existence of probable cause. Id. at 86.

Our Court adopted that general rule in McGriff. We stated that while the law had

been somewhat unclear in the past, “we now agree with the Superior Court that

under the present state of Pennsylvania law, probable cause is conclusively

established at the time the arrest was made where there is a guilty plea or

conviction.” McGriff, 699 A.2d at 800. We affirmed the trial court’s order,

explaining that, having agreed with the Superior Court in Cosmas “that the law of

Pennsylvania is the Restatement position that a guilty plea conclusively establishes

probable cause, [the appellant] cannot establish an essential element needed to

make a cause of action for false arrest.” McGriff, 699 A.2d at 800.

Accordingly, we affirm.8

MICHAEL H. WOJCIK, Judge

8

On November 8, 2019, Appellant filed a Request for Oral Argument and a Request for

Argument En Banc, which, based on our disposition, we dismiss as moot.

6

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Joel Salih, :

:

Appellant :

:

v. : No. 1524 C.D. 2018

:

County of Allegheny Office :

of District Attorney, the City :

of McKeesport, and Police :

Sergeant Derek Stitt :

ORDER

AND NOW, this 23rd day of January, 2020, the order of the Court of

Common Pleas of Allegheny County, dated August 6, 2018, is AFFIRMED.

Appellant’s Request for Oral Argument and Request for Argument En Banc are

DISMISSED as moot.

__________________________________

MICHAEL H. WOJCIK, Judge