Neal, W. v. Sheridan, V.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM C. NEAL, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant :

:

v. :

:

VIRGINIA A. SHERIDAN & JUDITH A. : No. 1857 MDA 2016 SMITH :

Appeal from the Order entered October 5, 2016 in the Court of Common Pleas of York County, Civil Division, No(s): 2013-SU-2157-94

BEFORE: STABILE, MOULTON and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JUNE 29, 2017

William C. Neal (“Neal”) appeals, pro se, from the Order (“the Summary

Judgment Order”) granting the Motion for Summary Judgment filed by

Virginia A. Sheridan and Judith A. Smith (collectively, “Defendants”). We

affirm.

On June 20, 2013, Neal, a resident of Stewartstown, Pennsylvania, filed

a civil Complaint against Defendants, owners of a residence located at 3 Park

Street, Stewartstown, Pennsylvania (“the Property”). Neal’s Complaint

alleged that he had an option contract (“the Option Contract”) with

Defendants to purchase the Property. Neal asserted that Defendants

breached the Option Contract by refusing to settle on the Property.

Approximately three months after filing the Complaint, Neal filed a

Petition for Chapter 13 bankruptcy in the United States Bankruptcy Court for

the Middle District of Pennsylvania (hereinafter “the bankruptcy proceeding”).

Notably, Neal did not disclose the Option Contract1 in his Chapter 13

Bankruptcy Plan.2

Defendants filed Preliminary Objections on August 8, 2013, pointing to

Neal’s failure to attach to his Complaint a copy of the written Option Contract.

Neal thereafter filed an Amended Complaint (with a copy of the Option

Contract appended thereto) and a Response to the Preliminary Objections.

On June 30, 2015, Defendants filed an Answer and New Matter asserting,

inter alia, that Neal’s failure to disclose the Option Contract in the bankruptcy

proceeding rendered the contract void and unenforceable. Neal thereafter

filed an Answer to Defendants’ New Matter, wherein he urged that his filings

in the bankruptcy proceeding are irrelevant to the enforceability of the Option

Contract.

On June 23, 2016, Defendants filed a Motion for Summary Judgment,

which the trial court granted via the Summary Judgment Order on October 5,

2016. The trial court stated in its Memorandum accompanying the Summary

Judgment Order (the “S/J Memorandum”), in sum, that no enforceable

contract existed because Neal had rejected the Option Contract by failing to

disclose it in the bankruptcy proceeding.

1 Relevant to this appeal, an option contract is considered an “executory contract” under the federal Bankruptcy Code. See 11 U.S.C.A. § 365. 2 Neal filed a total of four Chapter 13 Bankruptcy Plans (collectively referred to as “the Bankruptcy Plans”), none of which disclosed the Option Contract. Notably, Defendants attached to their Motion for Summary Judgment copies of the Bankruptcy Plans. The bankruptcy court confirmed Neal’s third amended Bankruptcy Plan in April 2014.

3

Neal timely filed a pro se Notice of Appeal, followed by a court-ordered

Pa.R.A.P. 1925(b) Concise Statement of errors complained of on appeal. The

trial court thereafter issued a Pa.R.A.P. 1925(a) Opinion.

Neal now presents the following issues for our review:

1. Did the trial court err in entering summary judgment where there was insufficient material to do so pursuant to Pennsylvania Rule of Civil Procedure 1035.2?

2. Did the trial court err in effectively not affording [Neal] the right to cross-examine writings pursuant to Pennsylvania Rules of Evidence 612(a) and 612(b)(1)?

3. Did the trial court err[] in permitting witnesses to not be made available to [Neal] for cross-examination pursuant to Pennsylvania Rule of Evidence 614(a)?

4. Did the trial court err[] in permitting inadmissible hearsay pursuant to Pennsylvania Rule of Evidence 801(a)[-](c)?

5. Did the trial court err[] in permitting inadmissible hearsay pursuant to Pennsylvania Rule of Evidence 802?

6. Did the trial court err in not following the requirement of authentication and identification of evidence pursuant to Pennsylvania Rule of Evidence 901(a)?

7. Did the trial court err in causing and permitting [Neal’s] right to the Confrontation Clause under Article 1 Section 9 of the Pennsylvania Constitution to be denied?

8. Did the trial court err in causing [and] permitting [Neal’s]

right to the Confrontation Clause under Amendment Six of the United States Constitution to be denied?

Brief for Appellant at 4 (unnumbered; issues renumbered for ease of

disposition).

4

Neal first argues that the trial court erred in entering summary

judgment against him because there was insufficient evidence presented that

the Option Contract was unenforceable. Id. at 8 (unnumbered). Neal

contends that “it cannot even be clearly established that [Defendants] herein

had a cause of action below[,] let alone sufficient evidence to ever prevail in

the case.” Id. According to Neal, “[i]n this case, there never could have

been any facts at all, let alone undisputed facts[,] because the mere papers

that were submitted by a mere attorney [(i.e., counsel for Defendants),]

rather than a legitimate testifying witness[,] cannot by themselves even

determine a cause of action[,] let alone the outcome of the case.” Id.

We review a challenge to the entry of summary judgment as follows:

A reviewing court may disturb the order of the trial court only where it is established that the court committed an error of law or abused its discretion. As with all questions of law, our review is plenary.

In evaluating the trial court’s decision to enter summary judgment, we focus on the legal standard articulated in the summary judgment rule. Pa.R.C.P. 1035.2. The rule states that where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. Pa.R.C.P. 1035.2(1). Where the nonmoving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. Failure of a non-moving party to adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof establishes the entitlement of the moving party to judgment as a matter of law. Pa.R.C.P. 1035.2(2). Lastly, we will review the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.

5

Davis v. Wright, 156 A.3d 1261, 1266 (Pa. Super. 2017) (case citation and

brackets omitted).

In the S/J Memorandum, the trial court thoroughly addressed this

claim, summarized the law concerning executory contracts for purposes of a

bankruptcy plan, and properly determined that (1) Neal effectively rejected

the Option Contract (upon confirmation of his Chapter 13 Bankruptcy Plan) by

his failure to disclose it in the bankruptcy proceeding; and (2) viewing the

record in the light most favorable to Neal, Defendants are entitled to

judgment as a matter of law. See S/J Memorandum, 10/5/16, at 3-6

(unnumbered); see also Trial Court Opinion, 12/19/16, at 6-7. We agree

with the trial court’s sound rationale, which is supported by the law and the

record, and affirm on this basis as to Neal’s first issue. See S/J

Memorandum, 10/5/16, at 3-6 (unnumbered).

6

We next address Neal’s issues numbered 2-6 together,3 as they all

allege that the trial court violated various Pennsylvania Rules of Evidence.

Specifically, Neal contends as follows:

 The trial court violated Rule 612(a) and (b)(1),4 where “no testimony ever took place[,]” by depriving him of “the right to cross-examine

3 Neal has failed to meaningfully develop his argument on these issues, (which, combined, spans less than one page), some of which set forth no citation to legal authority and are only one sentence in length. See Brief for Appellant at 7 (unnumbered). We could deem these issues waived on this basis. See Coulter v. Ramsden, 94 A.3d 1080, 1089 (Pa. Super. 2014) (stating that mere issue spotting, without meaningful analysis or citation to relevant legal authority to support an assertion, precludes our appellate review of a matter); see also Pa.R.A.P. 2119(a) (providing that the argument section of an appellate brief shall contain discussion of issues raised therein and citation to pertinent legal authorities). Moreover, we could deem these issues waived for Neal’s failure to raise them before the trial court prior to filing his Rule 1925(b) Concise Statement. See Pa.R.A.P. 302(a) (stating that a claim cannot be raised for the first time on appeal); see also Steiner v. Markel, 968 A.2d 1253, 1257 (Pa. 2009) (holding that “a 1925(b) statement can [] never be used to raise a claim in the first instance.”). However, assuming, arguendo, that Neal preserved these issues, we will briefly address them. See Branch Banking & Trust v. Gesiorski, 904 A.2d 939, 942 (Pa. Super. 2006) (stating that “this [C]ourt is willing to liberally construe materials filed by a pro se litigant[.]” (citation omitted)). 4 Rule 612 provides, in relevant part, as follows:

(a) Right to Refresh Memory. A witness may use a writing or other item to refresh memory for the purpose of testifying while testifying, or before testifying.

(b) Rights of Adverse Party.

(1) If a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have it produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.

Pa.R.E. 612(a), (b)(1).

7

writings submitted … as evidence[.5]” Brief for Appellant at 6 (unnumbered; footnote added);

 “Pursuant to Pennsylvania Rule of Evidence 614(a),[6] witnesses to written testimony must be made available to be cross-examined on those writings[,] and that did not occur in this case[,] thereby posing a violation to [Neal].” Id. (footnote added);

 “Pursuant to Pennsylvania Rule of Evidence 801(a)[-](c) [(which defines the terms “hearsay,” “declarant,” and “statement”)], the testimonial evidence submitted at trial was hearsay, as it was made while not testifying at trial by a declarant[,] while still being a person’s statement[,] and therefore was inadmissible ….” Id.;

 “Since no witness was ever made available to be cross-examined on the hearsay presented by the attorney for [Defendants], said hearsay was inadmissible ….” Id.;

 The trial court erred in finding that the documentary evidence presented by Defendants was properly authenticated, pursuant to Pa.R.E. 901(a),7 where Defendants “chose not to make … available” witnesses who were “clearly available” to authenticate the evidence. Id.

5 Though Neal offers no clarification on this point, it appears that the documents to which he objects are the Bankruptcy Plans, which Defendants appended to their Motion for Summary Judgment. 6 Rule 614(a) provides that “[c]onsistent with its function as an impartial arbiter, the court, with notice to the parties, may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness.” Pa.R.E. 614(a). 7 Rule 901(a) provides that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).

8

The trial court concisely addressed all of the above issues in its Rule

1925(a) Opinion, discussed the applicable law, 8 and determined that each

issue lacked merit. See Trial Court Opinion, 12/19/16, at 3-6. We agree

with the trial court’s rationale and determination, and therefore would affirm

on this basis as to Neal’s issues numbered 2-6. See id.

In his seventh and eighth issues, which we will address together, Neal

contends that the trial court deprived him of his confrontation clause rights,

under Article 1, Section 9 of the Pennsylvania Constitution and the Sixth

Amendment to the United States Constitution.9 Brief for Appellant at 7-8

(unnumbered). We disagree.

Although a criminal defendant has the right to confront witnesses

against him under the Sixth Amendment, Neal is a civil plaintiff in this case,

where such rights are inapplicable. See Turner v. Rogers, 564 U.S. 431,

442-43 (2011); In the Interest of A.P., 692 A.2d 240, 242 (Pa. Super.

1997). Accordingly, Neal’s final two issues entitle him to no relief.

Based upon the foregoing, we affirm the Summary Judgment Order.

8 To the extent that the trial court references the exception to the rule against hearsay contained in Pa.R.E. 803(25), this provision states that a statement made by a party opponent is admissible to be offered against him, if it was, inter alia, “made by the party in an individual or representative capacity;” or “is one the party manifested that [he] adopted or believed to be true.” Pa.R.E. 803(25)(A), (B). 9 This Court has “held that the Confrontation Clause of the Pennsylvania Constitution affords defendants the same rights as the Sixth Amendment of the United States Constitution.” Commonwealth v. Yohe, 39 A.3d 381, 385 n.4 (Pa. Super. 2012).

9

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/29/2017

Circulated 06/06/2017 04:04 PM

Circulated 06/06/2017 04:04 PM