J-S10013-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH P. PROSCENO, III, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DEVRY UNIVERSITY, FORT
WASHINGTON, PENNSYLVANIA CAMPUS
Appellee No. 843 EDA 2014
Appeal from the Order Entered January 21, 2014
in the Court of Common Pleas of Montgomery County
Civil Division at No.: 2013-12077
BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED MARCH 11, 2015
Appellant, Joseph P. Prosceno, III, appeals pro se from the order of
January 21, 2014, which granted the motion for summary judgment of
Appellee, DeVry University, Fort Washington, Pennsylvania Campus, in this
breach of contract case. For the reasons discussed below, we affirm.
We take the underlying facts and procedural history in this matter
from the trial court’s opinion of October 3, 2014.
Appellant enrolled at the DeVry University, Fort
Washington, Pennsylvania Campus on July 7, 2008, and pursued
a Bachelor of Science degree in Game Simulation Programming
(“GSP”). The GSP program required that Appellant successfully
complete a two-part senior project in which Appellant was to
create a working video game or simulation application to
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*
Retired Senior Judge assigned to the Superior Court.
J-S10013-15
demonstrate his knowledge of software development. The first
part of Appellant’s senior project was course GSP494 Senior
Project I, for which Appellant and his partner needed to upload
and present a working prototype/proof of concept of the game
design (“Alpha Version”) to the class, the professor and
potentially to advisors. Appellant and his partner were unable to
demonstrate the prototype/proof of concept of their game design
during their presentation. Ultimately, the professor assigned a
score of 24/100 for the Alpha Version demonstration and an
overall grade of B for course GSP494. Appellant disagreed with
his grade and contacted the professor requesting a review. The
professor declined to change Appellant’s grade for the course.
* * *
Appellant, acting pro se, filed a complaint on May 20,
2013, alleging four counts of breach of contract. In Count I,
Appellant alleges that the professor “breached the obligations
listed under [Appellee’s] Code of Conduct and Ethics’ accurate
books and records policy by deliberat[ely] giving [Appellant] a
GSP494 Alpha Version Application assignment grade of 24/100
which resulted in [Appellant’s] GSP494 Final Course Grade
resulting in 899/1000, [‘B’], rather than awarding [Appellant] his
GSP494 Alpha Version Application assignment grade after
properly reviewing the content of [Appellant’s] submitted
GSP494 Alpha Version Application game file[.]” In Count II,
Appellant alleges that [Appellee’s] faculty, dean and the head of
the IT department “breached the obligations listed under
[Appellee’s] Mission and Purpose Statement by refusing
[Appellant's] request to upgrade the UDK software already
installed on the computers located within DeVry's GSP Lab[.]” In
Count III, Appellant alleges that [Appellee’s] registrar “breached
the obligations included under [Appellee’s] Employee Code of
Conduct and Ethics accurate books and records policy by
miscalculating [Appellant’s] Fall 2008 Term GPA and Summer
2009 Term GPA[.]” In Count IV, Appellant alleges “that
[Appellee’s] Student Housing Department breached the terms of
[Appellee’s] Student Housing Agreement by not
refunding/returning to him his Initial Reservation Fee/Security
Deposit.”
* * *
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On December 12, 2013, Appellee filed a motion for
summary judgment. . . . Appellant filed his answer in opposition
to Appellee’s motion on January 2, 2014. In his answer,
Appellant admits that [Appellee’s] Code of Conduct and its
Mission Statement, documents upon which he relies for his
breach of contract claims, are contracts to which he is not a
party. Appellant did not provide any deposition testimony or
sworn affidavits based upon personal knowledge to the court,
nor did Appellant request additional time to conduct discovery.
(Trial Court Opinion, 10/03/14, at 1-5, 7-8) (record citations and footnotes
omitted).
On January 21, 2014, the trial court granted the motion of Appellee for
summary judgment. The instant, timely appeal followed.1
On appeal, Appellant raises the following questions for our review.
(5.1.1) Claim 1 — Question 1
Did Professor Roberts deny the Appellant the option rightfully
given to the Appellant to use currently accessible technologies
from within the Appellant’s program of study, or determine to
apply other technologies of the Appellant’s choosing by refusing
to allow the Appellant to demonstrate the Appellant’s GSP494
Alpha Version Application during the Appellant’s GSP494 Alpha
Presentation with use of the Appellant’s HP dv7 laptop with or
without being connection to a classroom projector?
(5.1.2) Claim 1 - Question 2
Did Professor Roberts admit to submitting/deliberately giving an
assignment grade for the Appellant’s GSP494 Alpha Version
Application without having read/reviewed the contents of the
Appellant’s submitted GSP494 Alpha Version Application, which
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1
On February 18, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely statement on March 5, 2014. See id. The trial court
issued an opinion on October 3, 2014. See Pa.R.A.P. 1925(a).
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negatively impacted the Appellant’s GSP494 Final Grade and GSP
Degree Program Spring 2011 Term GPA and Cumulative GPA?
(5.1.3) Claim 1 - Question 3
Did Professor Roberts make a false and/or misleading entry in
the Appellant’s grade book for the Appellant’s GSP494 Alpha
Version Application assignment grade[,] which negatively
impacted the Appellant’s GSP494 Final Grade (and GSP Degree
Program Spring 2011 Term GPA and Cumulative GPA)?
(5.2.1) Claim 2 - Question 1
Would it have been possible to download and install an up-to-
date and compatible version of the UDK software onto at least
one of DeVry’s GSP Lab computers completely free with no
licensing issues that would have hindered DeVry from flawlessly
downloading and installing the up-to-date and compatible
version of the UDK software?
(5.2.2) Claim 2 - Question 2
Did DeVry fail to supply the Appellant with compatible up-to-date
and market-driven software as requested by the Appellant in
order for the Appellant to work on and demonstrate the
Appellant’s GSP497 Beta Version Application using DeVry’s
Computers?
(5.2.3) Claim - 2 Question 3
Did Professor Roberts, Dean Suganthan, and/or the Head of the
IT Department’s actions directly cause the Appellant to purchase
an ASUS G73sw laptop in order to demonstrate the Appellant’s
GSP497 Beta Version Application during the Appellant’s GSP497
Final Presentation?
(5.3.1) Claim 4 - Question 1
Was/Is the Appellant’s Student Housing Initial Reservation
Fee/Deposit Refundable/Returnable as stated as being in DeVry’s
2007-2008 Student Handbook?
(5.3.2) Claim 4 - Question 2
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Has the Appellee brought forth and provided evidence showing
that the Appellant did not pay any of the Appellant’s DeVry
Student Housing Rent Term Payments in Full?
(5.3.3) Claim 4 - Question 3
Has the Appellee brought forth and provided evidence showing
the cause of and proving the legitimacy of the $100 charge to
the Appellant’s Student Housing Account?
(5.3.4) Claim 4 - Question 4
Was/[i]s the Appellant entitled to any interest that accumulated
on the Appellant’s $250 Student Housing Initial Reservation
Fee/Deposit over the two(2)-year period that the Appellant
stayed in housing contracting/leased by DeVry?
(Appellant’s Brief, at 6-9) (italics and quotation marks omitted).
Appellant appeals from the trial court’s grant of summary judgment to
Appellee. Our scope and standard of review are settled.
Pennsylvania law provides that summary judgment may be
granted only in those cases in which the record clearly shows
that no genuine issues of material fact exist and that the moving
party is entitled to judgment as a matter of law. The moving
party has the burden of proving that no genuine issues of
material fact exist. In determining whether to grant summary
judgment, the trial court must view the record in the light most
favorable to the non-moving party and must resolve all doubts
as to the existence of a genuine issue of material fact against
the moving party. Thus, summary judgment is proper only
when the uncontroverted allegations in the pleadings,
depositions, answers to interrogatories, admissions of record,
and submitted affidavits demonstrate that no genuine issue of
material fact exists, and that the moving party is entitled to
judgment as a matter of law. In sum, only when the facts are so
clear that reasonable minds cannot differ, may a trial court
properly enter summary judgment.
. . . With regard to questions of law, an appellate court’s scope
of review is plenary. The Superior Court will reverse a grant of
summary judgment only if the trial court has committed an error
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of law or abused its discretion. Judicial discretion requires action
in conformity with law based on the facts and circumstances
before the trial court after hearing and consideration.
Cresswell v. Pa. Nat’l Mut. Cas. Ins. Co., 820 A.2d 172, 177 (Pa. Super.
2003) (citation and emphasis omitted).
Prior to reaching the merits of Appellant’s claims, we must determine if
they are properly before us. For the reasons discussed below, we find that
Appellant has not properly preserved any issues for our review. See
Commonwealth v. Wholaver, 903 A.2d 1178, 1184 (Pa. 2006), cert.
denied, 549 U.S. 1171 (2007) (holding that appellate courts may sua sponte
determine whether issues have been properly preserved on appeal). In its
Rule 1925(a) opinion, the trial court stated:
. . . Appellant’s concise statement does not specify what
genuine issues of material fact exist or what evidence of record
before the trial court supported those facts. Moreover, any
evidence not properly presented to the court prior to the entry of
a final order may not be considered on appeal. As a result, this
court is hampered in its review of Appellant’s claims.
* * *
In the case sub judice, Appellant’s first four Rule 1925(b)
issues do not assert a sufficiently particularized argument to
allow meaningful review. Furthermore, Appellant’s concise
statement refers to evidence and issues not previously
considered by the trial court. Accordingly, these issues are
waived.
(Trial Ct. Op., at 11-12, 14).2
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2
Appellant’s Rule 1925(b) statement states:
(Footnote Continued Next Page)
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_______________________
(Footnote Continued)
[1.] Due to the Appellant’s lack of legal experience and
knowledge of the Pennsylvania Rules of Civil Procedure, the
Appellant’s previously filed Affidavits for Exhibits of Evidence
contained a Verification instead of being properly notarized, and
thus the Appellant’s submitted Exhibits of Evidence could not be
considered in Court. However, genuine issues of material fact
that are essential to the causes of action of the Appellant’s
Complaint and the Appellant’s Opposition to the Appellee’s
Motion for Summary Judgment do in fact exist, and shall be filed
and served in the Reproduced Record as Exhibits A-N along with
a properly notarized Affidavit in accordance with 052 Pa. Code §
1.36., so that the Exhibits may now be considered in Court.
Thus, Summary Judgment in favor of the moving party is not
appropriate.
[2.] Though not previously considered in Court due to the
absence of a properly notarized Affidavit, the Appellant has in
fact produced evidence of facts essential to the causes of action
of the Appellant’s Complaint and the Appellant’s Opposition to
the Appellee’s Motion for Summary Judgment, which shall be
filed and served in the Reproduced Record as Exhibits A-N along
with a properly notarized Affidavit 052 Pa. Code § 1.36., so that
the Exhibits may now be considered in Court. Thus, Summary
Judgment in favor of the moving party was and is not proper in
this case.
[3.] Other than relying on the Appellant’s Affidavits not
previously being notarized in accordance with 052 Pa. Code §
1.36. due to the Appellant’s lack of legal experience and
knowledge of the Pennsylvania Rules of Civil Procedure, the
moving party did not and has not produced genuine issues of
material fact establishing the complete absence of genuine
issues of material fact that are essential to the causes of action
of the Appellant’s Complaint and the Appellant’s Opposition to
the Appellee’s Motion for Summary Judgment.
[4.] The non-moving party of the Motion (Appellant) has
produced evidence of facts demonstrating genuine issues for
trial, which shall be filed and served with the Brief for the
Appellant in the Reproduced Record as Exhibits A-N along with a
(Footnote Continued Next Page)
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We agree with the trial court that Appellant waived his first four
claims. See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.
2011), appeal denied, 32 A.3d 1275 (Pa. 2011) (stating that where concise
statement is too vague, court may find waiver). Because Appellant failed to
specify any errors made by the trial court, other than generally stating that
the court erred in granting summary judgment, it was unable to address any
of the first four issues. Accordingly, Appellant has waived his claims. See
Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012),
appeal denied, 63 A.3d 1244 (Pa. 2013) (waiving claim where Appellant
failed to specify error alleged); see also Hansley, supra at 415.
While Appellant’s fifth claim is reasonably specific, the first time that
he claimed that there was a violation of the Landlord and Tenant Act of
1951, was in his Rule 1925(b) statement. (See Rule 1925(b) Statement,
3/05/14, at 4; Trial Ct. Op., at 17). An Appellant cannot raise an issue for
_______________________
(Footnote Continued)
properly notarized Affidavit 052 Pa. Code § 1.36., so that the
Exhibits may now be considered in Court.
[5]. In addition to the evidence produced by the Appellant not
being considered in Court due to the absence of a properly
notarized Affidavit, sections 250.511c and 250.512 of The
Landlord and Tenant Act of 1951 were overlooked, both of which
support Claim 4 of the Appellant’s Complaint and the Appellant’s
Opposition to the Appellee’s Motion for Summary Judgment
regarding Claim 4 of the Appellant’s Complaint.
(Rule 1925(b) Statement, 3/05/14, at 2-4).
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the first time in a Rule 1925(b) statement. See Commonwealth v.
Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time
in Rule 1925(b) Statement are waived). Thus, Appellant waived his final
issue as well.
Moreover, although Appellant raised five issues in his Rule 1925(b)
statement, in his statement of the questions involved he raises ten issues,
none of which he included in his Rule 1925(b) statement. (See Rule
1925(b) Statement, 3/05/14, at 2-4; Appellant’s Brief, at 6-9). As amended
in 2007, Rule 1925 provides that issues that are not included in the Rule
1925(b) statement or raised in accordance with Rule 1925(b)(4) are waived.
See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d
306, 308 (Pa. 1998), superseded by rule on other grounds as stated in
Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super. 2009).
Because of this, the trial court did not address any of the issues raised on
appeal in its Rule 1925(a) opinion. (See Trial Ct. Op., at 1-18). Therefore,
because Appellant failed to raise any of the issues raised in his pro se brief
in his Rule 1925(b) statement, he waived all issues on appeal.3
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3
Furthermore, we note that Appellant’s brief utterly fails to comply with the
rules of appellate procedure. For example, Appellant’s statement of
jurisdiction does not comply with Pennsylvania Rule of Appellate Procedure
2114. (See Appellant’s Brief, at 3). His statements of the scope and
standard of review are incorrect. (See id. at 6). His statement of the
questions involved is in violation of Pennsylvania Rule of Appellate Procedure
2116(a). (See id. at 6-9). His statement of the case does not comply with
(Footnote Continued Next Page)
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Thus, for the reasons discussed above, we affirm the grant of
summary judgment in this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/11/2015
_______________________
(Footnote Continued)
Pennsylvania Rule of Appellate Procedure 2117(a) and (b). (See id. at 9-
13). Appellant includes a section entitled “Brief Statement of Order Under
Review,” which is not contemplated by the rules of appellate procedure.
(See id. at 13-14). Further, his argument section is completely devoid of
citation either to the record or to relevant legal authority in violation of
Pennsylvania Rule of Appellate Procedure 2119. (See id. at 15-25).
Appellant’s brief is essentially a repetitive narrative statement of his reasons
for believing that Appellee breached its contract. It is devoid of any legal
support other than boilerplate quotations on the standard of review for
summary judgment. Thus, the defects in Appellant’s brief are significant
and had he preserved any issues for appeal would have substantially
encumbered our appellate review. See Pennsylvania Rule of Appellate
Procedure 2101 (“if the defects are in the brief or reproduced record of the
appellant and are substantial, the appeal or other matter may be quashed or
dismissed.”). Thus, we would have been constrained to quash the appeal
because Appellant’s brief is defective to the point that it constitutes a
violation of Pennsylvania Rule of Appellate Procedure 2101. See
Commonwealth v. Sanford, 445 A.2d 149, 150 (Pa. Super. 1982); see
also Pa.R.A.P. 2101.
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Prosceno, J. v. Devry University
Combined Opinion