J-S48032-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
O. HOWARD MUMMAU, RAE W. IN THE SUPERIOR COURT OF MUMMAU, GERALDINE M. ZIMMERMAN, PENNSYLVANIA AND ELI ZIMMERMAN,
Appellants
v.
JEFFREY D. MOHLER AND CLYMER & MUSSER, P.C. CLAIR S. MUMMAU, INDIVIDUALLY AND IN HIS CAPACITY AS ATTORNEY IN FACT FOR IVA K. MUMMAU, LAWRENCE N. MUMMAU, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF IVA K. MUMMAU, I. BERNICE TAMKIN AND GALEN S. SPICKLER,
Appellees No. 161 MDA 2014
Appeal from the Order December 30, 2013 in the Court of Common Pleas of Lancaster County Civil Division at No.: CI-06-04412
BEFORE: DONOHUE, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 09, 2014
Appellants, O. Howard Mummau, Rae W. Mummau, Geraldine M.
Zimmerman, and Eli Zimmerman, appeal from the order of December 30,
second amended complaint with prejudice. After careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court. J-S48032-14
December 30, 2013, supplemented as necessary for our review by the
family farm and the estate of Iva K. Mummau. Owen and Iva Mummau,
husband and wife, had eight children and owned a broiler chicken farm in
Mount Joy Township, Pennsylvania. Each of their children owned a 3.8%
their children re-conveyed their interests back to Owen and Iva. (See
Complaint, 12/19/06, at 6 ¶ 26, 7-8 ¶¶ 41-43). The other two siblings, O.
Howard Mummau and Geraldine M. Zimmerman, refused to re-convey their
interests. (See id. at 9-10 ¶ 52).
. Howard Mummau,
subdividing a portion of the farm zoned for residential use.1 (See id. at 6 ¶¶
30-32). On February 11, 1997, he received a notice letter terminating his
power to act as See id. at 16-17 ¶ 95).
fact, executed an agreement between him and his wife and Owen and Iva to
record, O. Howard Mummau is also an attorney-at-law, who represents himself and the other Appellants in this appeal.
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purchase the farm, with advice from attorney Jeffrey D. Mohler of the law
firm Clymer and Musser, P.C. (See id. at 4 ¶ 13-14). In January 1999,
Owen and Iva executed new wills which eliminated a marital bypass trust
from their previous wills. (See id. at 3 ¶ 17; see also Petition to Extend
Time in Which to File Complaint, 9/21/06, at 2-3 ¶ 10-11). In his new will,
estate to Iva, whom he appointed executor.
Owen died on March 13, 1999. The subdivision of the residential lots
was completed shortly thereafter. On May 23, 2000, Iva executed a codicil
to her will, assisted by Clair Mummau as attorney in fact and Jeffrey D.
Mohler. On February 22, 2000, Mohler filed a Petition for Partition of Real
a resolution to the fractional interests
in the farm and lots[ and to] reunit[e] the farm and lots into a single
partition action was filed in order to remove O. Howard Mummau and
Geraldine Zimmerman as record owners of the farm and residential lots due
to their respective 3.8% interests that they did not re-convey back to Owen
in 1985. (See Complaint, 12/19/06, at 26-27 ¶¶ 159-61). Appellants
demanded consideration for their interests in the farm, claiming that the
was to achieve the ultimate objective to effect a disinheritance of
[Appellants] by Iva Mummau and the acquisition of the farm by Clair at a
price he ha
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Complaint, 7/14/08, at 31 ¶ 179). Appellants did not attend a settlement
conference scheduled in February 2004. (See Complaint, 12/19/06, at 37 ¶
167(z)).
Eventually, Mohler, as representative for Iva K. Mummau, Clair
Mummau, family friend Galen Spickler, O. Howard Mummau, and Geraldine
in the farm and residential lots, and provided that Clair would buy the farm
for $402,000.00, thus settling their respective interests in the lots and the
farm. (See id. at 38-39 ¶ 168(j)). As a result, the partition action was
withdrawn, and in 2004, the farm was conveyed to Clair and Jean Mummau,
and then to their son, Kevin and his wife Stacey. (See id. at 39 ¶ 168(o)).
Appellants claim the sale price was well below fair market value. (See id. at
38-39 ¶ 168(j)).
Iva died on August 8, 2006. (See id. at 3 ¶ 7). Her sons Lawrence
Mummau and Clair Mummau were appointed executors of the estate. (See
id.
on September 16, 2006. (See Petition to Extend Time in Which to File
Complaint, 9/21/06, at Exhibit I).
pellants continued to
litigate this action. Eventually, on May 29, 2010, all eight children and six
grandchildren of Owen and Iva entered into a settlement agreement which
resolved all the objections and caveats raised by Appellants in their
challenges to See
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In re Estate of Iva K. Mummau, No. 1382 MDA 2013, unpublished
memorandum at Exhibit B, page 7 (Pa. Super. filed May 12, 2014)). The
settlement included a tortfeasor release and provided that
estates did not include the farm. (See id. at *2).
writ of summons in the instant case on May 4, 2006. (See Trial Ct. Op.,
12/30/13, at 1). As stated by Appellant O. Howard Mummau:
The gravamen of this case arises from . . . an underlying
Court brought by [Appellees Jeffrey D. Mohler and Clymer & Musser, P.C.] as counsel in the name of Iva [K]. Mummau, but initiated by Clair Mummau as her attorney in fact, against [Appellants] in connection with the purported settlement of the estate [of] Owen E. Mummau, Deceased, who was the father of [Appellant], O. Howard Mummau.
(Petition to Extend Time in Which to File Complaint, 9/21/06, at 2 ¶ 6).
malicious use of process, abuse of process, tortious interference with
contractual relations, intentional infliction of emotional distress by
outrageous conduct, and unjust enrichment/constructive trust, and
requested compensatory and punitive damages. (See generally Complaint,
12/19/06). Appellees filed preliminary objections. On January 26, 2007,
im for
another set of preliminary objections, and on June 25, 2008, the trial court
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dismissed with prejudice the intentional infliction of emotional distress count
in the amended complaint, granting Appellants leave to amend this claim
within twenty days. (See Order, 6/25/08, at unnumbered pages 1-3). On
July 14, 2008, Appellants filed a second amended complaint claiming fraud,
Appellees filed preliminary objections, and Appellants responded with
preliminary objections of their own. (See Second Amended Complaint,
7/14/08, at 35). Appellants then filed a motion to discontinue against all
defendants except Jeffery Mohler and Clymer & Mussler, PC, which the court
denied on November 4, 2009. (See Order, 11/04/09). Eventually, on
and sustained those of Appellees, dismissing the complaint. (See Order,
12/30/13). Appellants timely appealed.2
Appellants raise three questions for our review:
I. second amended complaints when it granted, then revoked, a complaint where damages to be claimed are dependent upon an underlying case now on appeal to this Court, where it made no finding in disposing of preliminary objections that [Appellants] failed to state a cause or causes of action, and failed to dispose of preliminary objections for more than five years, without explanation, claiming that [Appellants] were required to appeal interlocutory orders within thirty days of entry?
statement on February 18, 2014. The trial court entered a Rule 1925(a) opinion on April 2, 2014. See Pa.R.A.P 1925.
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II. discontinue their action against all defendants named except Jeffrey D. Mohler and Clymer & Mussler, P.C., in 2009 where the defendants whose discontinuance was requested were
of the action in its final order, inter alia, was its claim that the case was a family dispute which it could not understand?
III. reversed where it engaged in a pattern of procedural manipulation in conjunction with the underlyin case (on appeal in the Superior Court) including, inter alia, an ex parte defendants Mohler and Clymer & Musser, P.C. prior to disposition of preliminary objections, denial of discovery requested by
as to defendants other than Mohler and Clymer & Mussler, P.C., while failing to dispose of preliminary objections for more than five years without explanation in violation of the judicial code?
-5).
In their first issue, Appellants argue, inter alia, that the trial court
their complaints. (See -51). However, Appellants fail
to develop with citation to the record or relevant authority their assertion
that the trial court erred in revoking their extension of time to file their initial
complaint. (See -15, 17); see also Pa.R.A.P.
2119(a)-(c). Therefore, to the extent that we can discern the first issue as a
Our standard of review is as follows:
When reviewing the dismissal of a complaint based upon preliminary objections in the nature of a demurrer, we treat as true all well-pleaded material, factual averments and all inferences fairly deducible
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therefrom. Where the preliminary objections will result in the dismissal of the action, the objections may be sustained only in cases that are clear and free from doubt. To be clear and free from doubt that dismissal is appropriate, it must appear with certainty that the law would not permit recovery by the plaintiff upon the facts averred. Any doubt should be resolved by a refusal to sustain the
decision for an abuse of discretion or an error of law.
Further, this Court has noted the following with regard to review on to sustain preliminary objections.
decision to sustain preliminary objections, we examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven.
regarding preliminary objections only where there has been an error of law or an abuse of discretion.
, 924 A.2d 675, 679-80 (Pa. Super.
2007) (citations omitted).
This Court, during review of an order granting a demurrer, may not supply a fact missing in the complaint. We are also precluded from considering any conclusions of law or inferences which are not supported by the factual allegations contained in the complaint. This includes argumentative allegations or expressions of opinion. And while it is true that allegations of malice, intent and other conditions of the mind may be pled generally, see Pa.R.C.P. 1019(b), such characterizations of conduct, without supporting factual allegations, are insufficient.
, 647 A.2d 542, 552-53 (Pa. Super. 1994), affirmed, 676
A.2d 222 (Pa. 1996) (citations omitted).
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First, Appellants assert that the court erred in dismissing their claims
for wrongful use of civil proceedings and malicious use of process regarding
the partition actio
was a termination
at 18, 22 (emphasis in
original); see id. at 17-40). We disagree.
Mi-
Lor, Inc. v. DiPentino, 654 A.2d 1156, 1157 (Pa. Super. 1995) (citation
omitted).
A person who takes part in the procurement, initiation or continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings:
(1) he acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based; and
(2) the proceedings have terminated in favor of the person against whom they are brought.
42 Pa.C.S.A. § 8351(a).
The burden of proof is prescribed by 42 Pa.C.S.A. § 8354 as follows:
In an action brought pursuant to this subchapter the plaintiff has the burden of proving, when the issue is properly raised, that:
(1) The defendant has procured, initiated or continued the civil proceedings against him.
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(2) The proceedings were terminated in his favor.
(3) The defendant did not have probable cause for his action.
(4) The primary purpose for which the proceedings were brought was not that of securing the proper discovery, joinder of parties or adjudication of the claim on which the proceedings were based.
(5) The plaintiff has suffered damages as set forth in section 8353 (relating to damages).
42 Pa.C.S.A. § 8354.
Here, Appellants contend that the partition action was a wrongful use
of civil proceedings against them. It is well-
effect of a partition is to give each of [the] joint owners the possession he is
entitled to o Ramsey v. Taylor, 668 A.2d 1147,
1150 (Pa. Super. 1995) (citation and internal quotation marks omitted).
Bernstein v. Sherman, 902 A.2d 1276, 1278 (Pa.
Super. 2006) (citations and internal quotation marks omitted).
In the instant case, Appellants argue that they stated a prima facie
the partitio
partition action ended in withdrawal, constituting termination in favor of
that they retained two 3.8% interests in the farm, and that the litigation was
commenced in order
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(Second Amended Complaint, 7/14/08, at 31 ¶ 178). Thus, Appellees had a
right to partition, and probable cause to bring the partition action. See
Bernstein, supra at 1278. Because Appellees had probable cause,
Appellants cannot state a claim for wrongful use of civil proceedings. See
42 Pa.C.S.A. § 8354(3); Mi-Lor, Inc., supra at 1157. Accordingly, the trial
court did not err in dismissing this claim.
the defendant instituted proceedings without probable cause, with malice,
De Salle
v. Penn Cent. Transp. Co., 398 A.2d 680, 682 (Pa. Super. 1979) (citation
and footnote omitted). As previously discussed, Appellees did not lack
probable cause to bring the partition action, and thus Appellants could not
recover on this claim. See Burgoyne, supra at 679-80. Thus, the court
did not err in dismissing this claim.
Next, Appellants assert that the court erroneously dismissed their
part of [Appellees] whose purposes were not the legitimate object of a
Abuse of civil process is concerned with the perversion of a process after it is issued. The Restatement (Second) of Torts
process against another primarily to accomplish a purpose for which it is not designed. To establish a claim for abuse of process, it must be shown that the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a
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purpose for which the process was not designed, and (3) harm has been caused to the plaintiff the tort of abuse of process has been interpreted broadly and encompasses the entire range of procedures incident to the litigation process.
* * *
. . . [A]n essential element of the tort of abuse of process[ is] that the process was used primarily for a purpose for which the process was not designed. It is not enough that the process employed was used with a collateral purpose in mind.
A cause of action for abuse of process requires some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process . . .[;] there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions.
Hart, supra at 551-52 (citations and quotation marks omitted; emphasis in
original).
As previously discussed, Appellees initiated the partition action in
general allegation that Appellees
only actual, specific assertion of use of the litigation process against them is
s signature to the Petition
Id.). Rule
1023 was rescinded April 22, 2002, effective July 1, 2002, and thus we are
unable to discern what Appellants intend in arguing bad faith on this basis.
See Pa.R.C.P. 1023; Pa.R.A.P. 2119(a)-(b). This claim does not merit relief.
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Next, Appellants contend that they stated a cause of action in fraud
fraudulently and unduly by said fraud induced her to become engaged in
litigation against [Appellants] and to change her testamentary instruments
Brief, at 40). We disagree.
To state a claim for fraud, Appellants must show:
(1) A representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and, (6) the resulting injury was proximately caused by the reliance.
Weston v. Northampton Pers. Care, Inc., 62 A.3d 947, 960 (Pa. Super.
2013), appeal denied
mistake sh
prima facie case of fraud, the recipient of the
misrepresentation must be the one to reasonably rely upon the
misrepresentation and to be damaged as a proximate cause of that
Joyce v. Erie Ins. Exch./Erie Ins. Co., 74 A.3d 157, 167 (Pa.
Super. 2013) (citation omitted; emphasis in original). Here, Appellants aver
Appellants were damaged as a result. (See Appellan -41).
allege that the recipient of the misrepresentation was the individual or entity
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damaged as a proximate cause of reasonable reliance upon the
misrepresentation Joyce, supra at 167. Thus, the court did not err in
dismissing this claim.
Next, Appellants allege that they have stated a cause of action for
concerning the actions of [Appellees] f
wrongful and tortious conduct Iva would have included Howard and
res
judicata from pursuing this claim.
The fundamental principle upon which [res judicata] is based is that a court judgment should be conclusive as between the parties and their privies in respect to every fact which could properly have been considered in reaching the determination and in respect to all points of law relating directly to the cause of action and affecting the subject matter before the court. The essential inquiry is whether the ultimate and controlling issues have been decided in a prior proceeding in which the present parties had an opportunity to appear and assert their rights.
Chada v. Chada, 756 A.2d 39, 43-44 (Pa. Super. 2000) (citation and
emphasis omitted).
A judgment upon the merits bars a subsequent suit upon the same cause, though brought in a different form of action, and a party therefore cannot, by varying the form of action or adopting a different method of presenting his case, escape the operation of the principle that one and the same cause of action shall not be twice litigated.
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Dempsey v. Cessna Aircraft Co., 653 A.2d 679, 682 (Pa. Super. 1995),
appeal denied, 663 A.2d 684 (Pa. 1995) (citation omitted).
the ultimate and controlling issues,
Appellants availed themselves of the opportunity to appear and assert their
rights. (See In re Estate of Iva K. Mummau, No. 1382 MDA 2013 (Pa.
Super. filed May 12, 2014)). Furthermore, a panel of this Court affirmed the
inter alia,
Appellants and the other Mummau children, which agreed that the family
relevant part:
WHEREAS, all the parties to this Agreement believe it will be in the best interest of all parties hereto that all of the claims and causes of action, either actual or potential, between and among the parties to this Agreement be forever settled and resolved.
8. O. Howard Mummau and Geraldine M. Zimmerman shall execute a joint tortfeasor release in the civil action filed by O. Howard Mummau and Geraldine M. Zimmerman to No. CI-06- 04412 and currently pending in Lancaster County releasing Clair S. Mummau, Laurence N. Mummau, Bernice Tamkin, Galen Spickler, Kevin Mummau, Stacy Mummau and Clair S. Mummau and Laurence N. Mummau in their capacity as personal representatives of the Estate of Owen E. Mummau, Laurence N. Mummau in his capacity as personal representative of the Estate of Iva K. Mummau, and Clair S. Mummau in his capacity as attorney-in-fact for Iva K. Mummau.
9. Each and every party to this Agreement, on behalf of himself or herself and his or her heirs, executors and assigns do
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forever release, acquit, discharge and hold harmless each other individually and collectively for any and all actions, causes of action, claims, demands, damages, costs, losses, expenses and compensation, on account of or in any way growing out of any and all known or unknown claims, either actual or potential, between and among each other which have arisen or may have occurred at any time heretofore. . . .
(Id. at *3, Exhibit A, at 2 ¶¶ 8, 9; see also id. at Exhibit A, at 2 ¶ 10).
Thus, Appellants had a full and fair opportunity to litigate their claims related
tortfeasor release of the relevant parties. See Chada, supra at 43-44.
Therefore, we will not permit this issue to be twice-litigated, and conclude
that it is barred by the doctrine of res judicata. See Dempsey, supra at
682. Appellants cannot state a claim for tortious interference with an
inheritance.3
[t]hird [p]arty [b]eneficiaries against [Appellees] Mohler and Clymer &
3 Appellees persuaded Iva K. Mummau to transfer the farm to Clair Mummau at a diminished price, does not state a claim for tortious interference with an
of inter vivos transfers alleged to diminish an eventual bequest. Rather, we have limited the parameters of potential . . . claims to instances involving demonstrable interference with the testamentary scheme the decedent had Estate of , 859 A.2d 472, 477 (Pa. Super. 2004), appeal denied, 876 A.2d 396 (Pa. 2005) (citation omitted). Appellants have not asserted that Appellees prevented Iva from changing her will in favor of Appellants. Therefore, even if Appellants had not released Appellees from tortfeasor liability, their claim would not merit inter vivos transfer to Clair.
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ey
they would have standing to make claims as third party beneficiaries,
Id. at 45).
As previously discussed, Appellants failed to state a claim for tortious
interference.
Furthermore, their claim is barred by the doctrine of res judicata, in
that they have already been given the opportunity to be heard on their
claims against the perpetuation of Iva K. Mummau See Chada,
supra at 43-44; (see also In re Estate of Iva K. Mummau, No. 1382
MDA 2013 (Pa. Super. filed May 12, 2014)). Thus, this claim would not
merit relief.
cause of actio
Brief, at 47). We disagree.
There remains some question as to whether the courts of this Commonwealth recognize a cause of action for intentional infliction of emotional distress. However, our Supreme Court has indicated that in order for a plaintiff to prevail on such a claim, he or she must, at the least, demonstrate intentional outrageous or extreme conduct by the defendant, which causes severe emotional distress to the plaintiff.
Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. 2005) (citations
show physical injury or harm in order to
Fewell v. Besner, 664 A.2d 577, 582 (Pa. Super. 1995) (emphasis added;
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Kazatsky v. King David Memorial Park, 527 A.2d 988, 995 (Pa.
1987) (stating that claim for intentional infliction of emotional distress
i
See id.
They claim, in pertinent part:
301.
fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, depression.
302. uct has been the direct and proximate
health care and medical professionals.
(First Amended Complaint, 1/26/07, at 8 ¶¶ 301-02). Appellants fail to aver
hysical illness requiring the services of
Id. at 8 ¶ 302).
Thus, they failed to aver sufficient facts to state a claim for intentional
infliction of emotional distress. See Kazatsky, supra at 995; Fewell,
supra at 582. The court did not err in dismissing this claim. See
Burgoyne, supra at 679-
merit.
were arbitrary and capricious, an abuse of discretion and in violation of the
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urt Estate of Iva K.
Id. at 52).
of various canons of the Judicial Code of Conduct, effective July 1, 2014, and
the duties of judges under the Pennsylvania Constitution Article V, Section
Id. at 54; see also id. at 53).4 These issues are waived.
a self-serving and speculative history
at 56; see also id. at 51-56). They cite only to general case law and
canons of the Pennsylvania Code of Judicial Conduct to assert that the court
5 (Id. at 53); see also Lakatosh, supra at ____________________________________________
4 Appellants also raise a second sub- permitted fail to develop this assertion with citations to the record or relevant
see also Pa.R.A.P. 2119(a)-(b); Estate of Lakatosh, 656 A.2d 1378, 1381 (Pa. Super. 1995). 5 Appellants later repeat this assertion, claiming that, pursuant to Commonwealth v. Druce the Judicial Code of Conduct . . . combined with evidence of bias or prejudice -57). Druce is inapposite,
(Footnote Continued Next Page)
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argument section pertaining to these issues consists of general statements
unsupported by any citation of authority. The argument portion of an
appellate brief must include a pertinent discussion of the particular point
omitted). Thus, they have waived these claims. See Lakatosh, supra at
1381.
stated that four of its prior orders were interlocutory and suggested that the
appeal deadlines fell thirty days after their respective entries. (See Trial
assertion that these orders were interlocutory and not appealable until a
final order was entered, but nevertheless determine that Appellants are
entitled to no relief on this claim.
_______________________ (Footnote Continued)
a criminal case did not violate judicial canons or codes of conduct, and does no fail to indicate that they ever properly filed a petition to recuse, and thus, have waived this claim on this ground as well. See Coulter v. Ramsden, 2014 Pa. Super. Lexis 1192, at *21 (Pa. Super. 2014) -settled that a party seeking recusal or disqualification must raise the objection at
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It is well-settled that an appeal may be taken as of right from any final
order of a lower court. See Pa.R.A.P. 341. Rule 341(b) provides that a
(2) is expressly defined as a final order by statute; or (3) is entered as a
final order pursuant to Pa.R.A.P. 341(c). Id.
n, the orders at issue were interlocutory, (see
Trial Court Opinion, 4/02/14, at unnumbered page 2), and based on our
all parties, or were entered as final orders pursuant to Rule 341(c): the
November 29, 2006 order required Appellants to file a complaint within
intentional infliction of emotional distress claim; the October 2, 2008 order
was a scheduling order and did not dispose of any claims or issues; and the
except Jeffery D. Mohler and Clymer & Mussler, and therefore did not
dispose of the parties or claims. Thus, the orders were interlocutory and
unappealable until the court entered the final order of December 30, 2013,
from which Appellants properly appealed.
Louis Dreyfus Commodities Suisse SA v.
Fin. Software Sys., Inc., 2014 Pa. Super. Lexis 2319, at *6 (Pa. Super.
relief based on the substance of those prior orders lack merit or have been
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waived on
relief.
In their third issue, Appellants obje
matter solely with respect to [Appellees] Jeffrey D. Mohler and Clymer &
-58). We disagree.
First, Appellants fail to develop or cite any authority for their
Id. at 57). Thus, this contention is
waived. See Lakatosh, supra at 1381.
Court, they should be permitted to pursue their claims against Appellees
Jeffrey D. Mohler and Clymer & Musser, P.C. (See -
59). This claim is also waived for failure to cite to any relevant or
persuasive authority. See Lakatosh, supra at 1381. Moreover, as
In re Estate
of Iva K. Mummau, No. 1382 MDA 2013 (Pa. Super. filed May 12, 2014),
-party beneficiary claims against Appellees are barred by res
judicata
issue does not merit relief.
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Order affirmed.
Donohue, J., joins the memorandum.
Jenkins, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 9/9/2014
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