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.
2

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).
3

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. 
4

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.”
5

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 
6

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. 
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 :

O R D E R

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