J-A02029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MARTIN MUSSER IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
C. WAYNE COMPANY, L.P.
No. 1250 MDA 2015
Appeal from the Order Entered June 23, 2015
in the Court of Common Pleas of Centre County Civil Division
at No(s): 2015-422
BEFORE: PANELLA, STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED MAY 31, 2016
Appellant, Martin Musser, appeals from the order of the Centre County
Court of Common Pleas that sustained the preliminary objection of Appellee,
C. Wayne Company, L.P., raising the defense of collateral estoppel.
Appellant concedes he waived an objection to the presentation of an
affirmative defense in a preliminary objection, but claims the trial court
erred in sustaining the objection by looking beyond the pleadings and
determining that his prior action resolved the same issue presented in the
present action. We affirm.
*
Former Justice specially assigned to the Superior Court.
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The ongoing dispute between the parties concerns the former property
of Amy Musser, Appellant’s mother, on which there is a barn/home.
Appellant suffered head trauma as a result of an accident when he was a
teenager. Amy Musser died in 2001, and in her will, she transferred the
contested property “to a Trust for the use and benefit [Appellant] if he
survives me by thirty days.” See Ex. B, Appellant’s Compl., 1/26/15. One
of the conditions of the trust was set forth as follows:
I direct that [Rick Brooks, the executor of the estate and
the trustee] permit [Appellant] to reside in and utilize my
barn/home and land for as long as he is able. If he is no
longer able to maintain the property, or does not desire to
live there, the Trust is to terminate and the property is to
be transferred by my Trustee to the Supervisors of Gregg
Township for the use and benefit of citizens of Gregg
Township in any manner they deem appropriate and in
their absolute and unfettered discretion.
Id.
As it is material to this appeal, we set forth the following background
regarding Appellant’s prior action regarding the contested property.
By deed dated August 14, 2002, [Brooks] conveyed [the
contested] property to Gregg Township Supervisors,
reserving a conditional life estate for [Appellant,1] after
determining that [Appellant] did not desire to live there
and advising [Appellant] of his intentions. [Appellant] did
not object. No member of [Appellant’s] family objected.
[Brooks] transferred the property in order to reduce the
1
The August 14, 2002 indenture read, in relevant part, that Brooks “does
transfer and convey said property to SUPERVISORS OF GREGG
TOWNSHIP, UNDER AND SUBJECT TO THE RIGHT OF [APPELLANT]
TO RESIDE IN OR UTILIZE THE PROPERTY FOR AS LONG AS HE IS
ABLE.” Ex. B., Appellant’s Compl.
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taxes that were being paid out of the trust. [Brooks]
maintained the residue of the estate for [Appellant’s]
benefit, and accounted for all trust funds. Gregg Township
continued to allow [Appellant] to use the property, though
[Appellant] has never lived there. In 2011, after speaking
to [Appellant] and [Appellant’s] family, the Supervisors of
Gregg Township advertised the property for sale, and the
successful bidder was [Appellee].
[Appellant] filed his Complaint—Petition in Equity on
December 19, 2011, seeking the following relief: (1) an
accounting; (2) declaration that the deed dated August 14,
2002[,] be declared null and void because of the breach of
fiduciary duty by [Brooks]; (3) imposition of a constructive
trust and appointment of a new trustee; (4) injunctive
relief barring the Supervisors of Gregg Township from
completing the sale to [Appellee]; and (5) imposition of a
resulting trust.
A non-jury trial was held before [the trial court] on April
10, 2013. At the conclusion of [Appellant]’s case, [ ]
Defendants moved for a demurrer without presenting
witnesses or evidence. The [c]ourt granted the demurrer
because it found that [Brooks] followed the directions in
[Amy Musser’s] Will. The [c]ourt found that [Brooks] had
properly exercised his authority to transfer the property.
An Order was entered on April 18, 2013, dismissing all
claims and parties.
Musser v. Gregg Twp. Supervisors, 1690 MDA 2013 (Pa. Super. July 25,
2014) (unpublished memorandum at 2-3 (quoting Trial Ct. Op., 9/10/13, at
2-3)), appeal denied, 789 MAL 2014 (Pa. Feb. 18, 2015). Appellant filed a
post-trial motion to remove the nonsuit, which the trial court denied as
follows:
AND NOW, on this 10th day of September, 2013,
[Appellant’s] Motion for Post Trial Relief is DENIED. The
property was transferred to [Appellee] on October 13,
2011 after Gregg Township Supervisors advertised the
property for sale and [Appellee] was the highest bidder.
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[Appellant], who has not desired to live in the
property since 2002, no longer maintains any
interest in the property.
Order, 9/10/13 (emphasis added). This Court affirmed the September 13,
2010 order, and the Pennsylvania Supreme Court denied Appellant’s petition
for allowance of appeal on February 18, 2015. See Musser, 1690 MDA
2013 at 4-5.
Meanwhile, on December 11, 2014, the Supervisors of Gregg Township
deeded the contested property to Appellee. The deed described the
contested property as: “ALSO BEING the same premises which Richard
Brooks, Executor of the Last Will and Testament of Amy Musser, granted and
conveyed unto Supervisors of Gregg Township . . . .” Ex. A, Appellant’s
Compl. Next to that description, the following statement appeared in a
distinctive manner: “The life estate claim of [Appellant] was extinguished by
Order of Centre County Court of Common Pleas dated 9/10/13. Docket No.
2011-4845.” Id.
On January 26, 2015, Appellant commenced the present action against
Appellee by filing a complaint. Appellee filed preliminary objections on
March 19, 2015, challenging, in part, Appellant’s capacity to bring suit in his
own right. In response, Appellant, though his guardian ad litem, Susan
Musser, filed an amended complaint on April 1, 2015, alleging Appellee
posted “No Trespassing” signs in January 2015 and he did not enter the
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property thereafter, fearing criminal prosecution. Appellant’s Am. Compl.,
4/1/15, at ¶¶ 9, 11. Appellant sought the following relief:
[Appellant] therefore prays that this [c]ourt provide [him]
with the following equitable remedy in accordance with the
law of equity in the Commonwealth of Pennsylvania; that
is, that [Appellee] be barred from interference with [his]
continuing right to use the property pursuant to the life
estate granted to him, that [Appellee] remove all signage,
and that [Appellee] be enjoined from [his] use of the
property and structures located thereon until the
termination of the life estate.
Id. at ¶ 14.
Appellee filed preliminary objections to the amended complaint,
claiming, in relevant part, that Appellant was attempting “to retry the [prior]
case” and had “no interest in the property.” Appellee’s Prelim. Objections,
4/20/15, at ¶¶ 6-7. Appellee asserted that the trial court in the prior case
“was persuaded that [Appellant] had abandoned his interest in the subject
property and therefore his interest had lapsed and the Trustee could
therefore transfer the property pursuant to the authority granted him under
the will of [Amy Musser].” Id. at ¶ 6. Appellant answered the preliminary
objections on April 28, 2015, and denied the objection based on collateral
estoppel as conclusions of law. Appellant’s Answer to Appellee’s Prelim.
Objections to Am. Compl., 4/28/15, at ¶¶ 6-7. The parties submitted briefs,
and on June 23, 2015, the trial court sustained Appellee’s preliminary
objection based on collateral estoppel and dismissed the action. Trial Ct.
Op., 6/23/15, at 4-5.
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Appellant filed a timely notice of appeal on July 20, 2015,2 and
complied with the trial court’s order to submit a Pa.R.A.P. 1925(b)
statement. The trial court relied on its order and opinion sustaining the
preliminary objection.
Appellant raises the following issues:
The trial court, in going outside the record, abused its
discretion and/or committed an error of law in granting
demurrer.
The [trial c]ourt incorrectly applied the doctrine of
collateral estoppel/res judicata.
Appellant’s Brief at 2.
We summarize Appellant’s arguments. First, Appellant sets forth a
perfunctory assertion, relying on an unpublished memorandum of this
Court,3 that “no testimony or other evidence outside of the complaint may
2
Appellant also filed a motion to reconsider on July 2, 2015, which the trial
court did not rule on before Appellant filed his notice of appeal.
3
As this Court has stated,
An unpublished Superior Court memorandum decision shall
not be relied upon or cited by a Court or a party in any
other action or proceeding, except that such a
memorandum decision may be relied upon or cited (1)
when it is relevant under the doctrine of law of the case,
res judicata, or collateral estoppel, and (2) when the
memorandum is relevant to a criminal action or proceeding
because it recites issues raised and reasons for a decision
affecting the same defendant in a prior action or
proceeding.
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be considered to dispose of the legal issues presented by the demurrer.” Id.
at 5. Second, he contends the trial court erred in concluding that the issues
in the prior and present action were identical. He asserts the prior action
resolved his rights as against Brooks under Amy Musser’s will only. The
present action, according to Appellant, seeks the enforcement of his rights
under Brooks’ August 14, 2002 conveyance of the contested property to the
Supervisors of Gregg Township.
The principles governing our review are well settled.
“Our standard of review of an order of the trial court
overruling or granting preliminary objections is to
determine whether the trial court committed an error of
law. When considering the appropriateness of a ruling on
preliminary objections, the appellate court must apply the
same standard as the trial court.”
“Preliminary objections in the nature of a demurrer
test the legal sufficiency of the complaint.” When
considering preliminary objections, all material facts
set forth in the challenged pleadings are admitted as
true, as well as all inferences reasonably deducible
therefrom. Preliminary objections which seek the
dismissal of a cause of action should be sustained
only in cases in which it is clear and free from doubt
that the pleader will be unable to prove facts legally
sufficient to establish the right to relief. If any doubt
exists as to whether a demurrer should be sustained,
it should be resolved in favor of overruling the
preliminary objections.
* * *
Coleman v. Wyeth Pharm., Inc., 6 A.3d 502, 522 n.11 (Pa. Super. 2010)
(citations omitted). Appellant’s citation of a memorandum decision does not
fit within these narrow exceptions.
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Collateral estoppel applies if (1) the issue decided in
the prior case is identical to the one presented in the
later case; (2) there was a final judgment on the
merits; (3) the party against whom the plea is
asserted was a party or in privity with a party in the
prior case; (4) the party or person privy to the party
against whom the doctrine is asserted had a full and
fair opportunity to litigate the issue in the prior
proceeding and (5) the determination in the prior
proceeding was essential to the judgment.
Collateral estoppel is also referred to as issue preclusion.
It is a broader concept than res judicata and operates to
prevent a question of law or issue of fact which has once
been litigated and fully determined in a court of competent
jurisdiction from being relitigated in a subsequent suit.
Perelman v. Perelman, 125 A.3d 1259, 1263, 1265 (Pa. Super. 2015)
(citations omitted). “[T]he doctrine of res judicata/collateral estoppel
applies not only to matters decided, but also to matters that could have, or
should have, been raised and decided in an earlier action.”
BuyFigure.com, Inc. v. Autotrader.com, Inc., 76 A.3d 554, 561 (Pa.
Super. 2013) (citation and emphasis omitted).
“A court may not ordinarily take judicial notice in one
case of the records of another case, whether in another
court or its own, even though the contents of those
records may be known to the court.” It follows, therefore,
that unless the facts relied upon to establish it appear from
the complaint itself, the defense of res judicata, may not
be raised by preliminary objections.
Kelly v. Kelly, 887 A.2d 788, 791 (Pa. Super. 2005) (citations omitted)
(noting “doctrine of res judicata ‘subsumes’ the modern doctrine of collateral
estoppel”).
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However, as the Kelly Court recognized, there are “very limited
circumstances” in which “the trial court’s action of considering the defense of
res judicata (or collateral estoppel) raised in the context of a preliminary
objection” is not improper. Id.
[I]n Dempsey v. Cessna Aircraft Co., 439 Pa.Super.
172, 653 A.2d 679, 680 (1995) (en banc), this Court
considered a matter in which, in response to preliminary
objections, the trial court dismissed the action on the
grounds of res judicata. Although we recognized that res
judicata is an affirmative defense and should be pleaded as
new matter in an answer, we did not reverse on that basis
because the facts were not in dispute and because neither
party objected to the procedure. Ultimately, in fact, we
affirmed the trial court. Here, in contrast, appellant in her
first issue effectively objects to this procedural irregularity.
Although we acknowledge with displeasure that proper
procedure was not followed in this case, we will not
reverse on this basis. As in Dempsey, the facts in this
case are not in dispute, and thus, appellant was not
deprived of an opportunity to prove or disprove a fact. In
ruling on the preliminary objections, moreover, the court
did not take notice of any collateral facts.
Id. at 791. The Kelly Court thus declined to reverse based on a “procedural
abnormality” and proceeded to review the trial court’s ruling that res
judicata applied. Id. at 791-92.
As to Appellant’s first argument, we initially note the claim that the
trial court improperly considered matters outside of the pleading is waived
for his failure to develop any meaningful argument beyond a recitation of the
law. See In re S.T.S., Jr., 76 A.3d 24, 42 (Pa. Super. 2013) (noting “mere
issue spotting without analysis or legal citation to support an assertion
precludes our appellate review of a matter”); Connor v. Crozer Keystone
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Health Sys., 832 A.2d 1112, 1118 (Pa. Super. 2003) (noting “‘[a]rguments
that are not appropriately developed are waived’”).
In any event, Appellant did not object to Appellee’s presentation of an
affirmative defense in a preliminary objection. Moreover, there is an order
from the court in the prior action, which states that “[Appellant], who has
not desired to live in the property since 2002, no longer maintains any
interest in the property.” Order, 9/10/13. We thus conclude that the instant
case fits within the limited exception to the rule that a court ruling on a
preliminary objection “may not ordinarily take judicial notice in one case of
the records of another case.” See Kelly, 887 A.2d at 791-92.
Appellant next contends that the prior action did not consider or afford
him a full and fair opportunity to assert a claim of right under the August 14,
2002 indenture under which the Supervisors of Gregg Township took the
property “under and subject to the right of [Appellant] to reside or utilize the
property for as long as he is able.” Ex. B., Appellant’s Compl. He argues
the prior action considered only Brooks’ duties under Amy Musser’s will. We
are constrained to disagree.
Appellant cannot avoid the fact that his prior action resulted in a
determination that he “no longer maintains any interest in the property.”
Order, 9/10/13. That ruling makes clear that the issues considered in the
prior and present action are identical. Moreover, in light of the trial court’s
ruling in the prior matter, the fact that Appellant had the opportunity to
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present evidence of his alleged rights under the August 14, 2002 indenture
challenge, and his opportunity the ruling in his appeal from that order, we
discern no merit to his contention that he was not afforded a full and fair
opportunity to litigate the issue. See BuyFigure.com, Inc., 76 A.3d at
561.
Thus, having reviewed Appellant’s arguments in light of the record, we
conclude Appellant failed to demonstrate the trial court committed legal
error in sustaining Appellee’s preliminary objection raising the defense of
collateral estoppel. See Perelman, 125 A.3d at 1263, 1265.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2016
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