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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RAHEEM JONES IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
DEBORAH BOHN
No. 165 MDA 2017
Appeal from the Order Entered December 21, 2016
In the Court of Common Pleas of Lackawanna County
Civil Division at No(s): 2016-03018
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY MOULTON, J.: FILED NOVEMBER 28, 2017
Raheem Jones appeals, pro se, from the December 21, 2016 order of
the Lackawanna County Court of Pleas denying Jones’ motion to dismiss the
preliminary objections filed by Deborah Bohn and dismissing Jones’ amended
complaint. We affirm.
The trial court summarized the factual and procedural history of this
case as follows:
On May 16, 2016, [Jones] filed this declaratory and civil
action against [Bohn] for alleged violations of the
Wiretapping and Electronic Surveillance Control Act, 18 Pa.
C.S.A. § 570 et seq. Specifically, Jones . . . averred that on
March 24, 2016, . . . Bohn hacked into [Jones’] Facebook
account and began harassing Nia Malik Bostick (the mother
of [Jones’] son) via Facebook messaging on [Jones’]
account. [Jones] maintains that he did not share his
Facebook password with [Bohn] or any other person or
entity, and never gave [Bohn] or any other person or entity
permission to access his account. [Jones] filed this action
setting forth twelve separate violations of various
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Pennsylvania laws, and sought declaratory relief as well as
damages amounting to a total of $36,000.00. [Bohn] filed
Preliminary Objections to the Complaint, and then [Jones],
on July 21, 2016, filed an Amended Complaint. On July 26,
2016, [Bohn] filed a second set of Preliminary Objections,
this time to the Amended Complaint, and the following
month, [Jones] filed a Motion to Dismiss Preliminary
Objections.
According to [Bohn], there is an agreement between
[Jones], [Bohn], and the District Attorney’s Office of
Lackawanna County pursuant to a negotiated plea between
the District Attorney and [Jones] in Central Court wherein
[Jones] agreed he would not initiate a civil action against
[Bohn] as part of the terms and provisions of the plea
bargain. [Jones’] cause of action, according to . . . Bohn,
should be dismissed pursuant to the agreement reached by
the parties in [Jones’] prior criminal matter.
Trial Ct. Op., 12/28/16, at 1-2 (unpaginated) (emphasis omitted).
The trial court held a hearing on the preliminary objections and Jones’
motion to dismiss on November 22, 2016. Jones, acting pro se, testified on
his own behalf, and Bohn presented the testimony of Assistant District
Attorney (“ADA”) Catherine Tully, who prosecuted Jones in the criminal matter
and participated in the plea negotiations.1 ADA Tully testified that as part of
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1 Although neither party raises this issue on appeal, we are compelled
to note a significant irregularity with regard to the November 22, 2016
“hearing.” In its opinion, the trial court referred to the parties’ on-the-record
statements as “testimony.” However, the trial court did not administer an
oath to either ADA Tully or Jones before they testified about the circumstances
surrounding the entry of the plea agreement. Pennsylvania Rule of Evidence
603 provides, “Before testifying, a witness must give an oath or affirmation to
testify truthfully. It must be in a form designed to impress that duty on the
witness’s conscience.” Pa.R.E. 603. Our Court has explained that “[w]ithout
an administration of an oath to a witness, the taking of testimony is
meaningless.” Tecce v. Hally, 106 A.3d 728, 731 (Pa.Super. 2014) (quoting
Commonwealth ex rel. Freeman v. Superintendent of State Corr. Inst.,
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the negotiated plea, Jones orally agreed not to file any future civil actions
against Bohn, the complainant in Jones’ criminal matter.2 Bohn also admitted
into evidence the transcript of a June 17, 2016 Grazier3 hearing, during which
Jones, his counsel, and ADA Tully referenced the terms of the plea agreement,
including the agreement not to sue. At the Grazier hearing, Jones’ counsel
stated:
There was an offer from the Commonwealth, wherein,
the criminal charges were reduced to two disorderly
conducts, misdemeanors of the third degree.
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242 A.2d 903, 908 (Pa.Super. 1968)). In Tecce, we stated that “[t]he lack
of an oath means that there was no testimony.” Id. Without testimony, there
is “no record evidence upon which the trial court could support its order” and
no basis “upon which any credibility determination could be made.” Id.
In this case, the trial court made factual findings and credibility
determinations based on statements that were not “testimony” as described
by our analysis in Tecce, which was error. See id. at 732. However, Jones
failed to object to this procedural defect at the hearing or raise this issue on
appeal. Therefore, he has waived this claim. See id. (“Pennsylvania’s
appellate courts have held, without apparent exception, that the failure to
object to unsworn testimony subjects a litigant to waiver.”); Pa.R.A.P. 302(a).
That Jones has represented himself throughout these proceedings is
immaterial to our waiver finding. See Commonwealth v. Adams, 882 A.2d
496, 498 (Pa.Super. 2005) (“[A]ny person choosing to represent himself in a
legal proceeding must, to a reasonable extent, assume that his lack of
expertise and legal training will be his undoing.”). Because Jones has waived
any challenge to the trial court’s characterization of the November 22, 2016
proceeding, we will likewise refer to the proceeding as a “hearing” and to the
evidence presented as “testimony.”
On April 5, 2016, Jones pled guilty to two third-degree misdemeanors
2
before a magisterial district judge. The plea proceeding was not transcribed.
3 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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In exchange for that plea, there was discussion that Mr.
Jones would not pursue any other avenues, criminally or
civilly against the victim.
And what I discussed with [Jones] is that I believed,
based on that, that we had a better chance in coming before
this Court on a petition for work release . . . .
In our discussion, Mr. Jones and I agreed that that would
be the course of action to follow.
N.T., 6/17/16, at 11-12. ADA Tully also referenced the agreement not to sue,
id. at 27, to which Jones responded, “[W]hen we actually had the hearing
. . ., the Commonwealth requested that the Judge make that a stipulation.
And the Judge clearly stated that it was not allowed to do that. So, I did not
agree to not pursue any civil action against Miss Bohn,” id. at 28. Defense
counsel then stated, “I believe what [ADA Tully] is saying, the agreement in
the criminal case[] is that it would be two M3s, with a sentence of time served,
[and Jones] would not pursue any criminal[] [or] civil actions further against
[Bohn] in that case.” Id. at 30.
On December 21, 2016, the trial court denied Jones’ motion to dismiss
the preliminary objections and dismissed Jones’ amended complaint. Jones
timely appealed to this Court.
On appeal, Jones presents one question for our review:
Did the trial court abuse its discretion when it misapplied
the law, inter alia, in dismissing [Jones’] Amended
Complaint and all causes of action within absent any legally
competent evidence of a valid written or oral “agreement
not to sue” as analy[z]ed under the standards pronounced
by Employers Liability Assurance Corp. v. Greenville
Business Men’s [Ass’n], 224 A.2d 620 (Pa. 1966)?
Jones’ Br. at 5.
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Our standard of review of an order sustaining “preliminary objections is
to determine whether the trial court committed an error of law.” Freundlich
& Littman, LLC v. Feierstein, 157 A.3d 526, 530 (Pa.Super. 2017). We
must accept as true all material facts pled in the complaint, as well as all
reasonable inferences therefrom. Id. “Preliminary objections [seeking] the
dismissal of a cause of action should be sustained only in cases in which it is
clear and free from doubt that the [plaintiff] will be unable to prove facts
legally sufficient to establish the right to relief.” Id. (quoting Richmond v.
McHale, 35 A.3d 779, 783 (Pa.Super. 2012)).
Jones first asserts that Bohn failed to comply with Pennsylvania Rule of
Civil Procedure 1019(i) because she did not attach to her preliminary
objections a copy of the alleged agreement not to sue. We disagree. Rule
1019(i) requires that an agreement upon which a pleading is based be
appended to the pleading only if the agreement is written. See Pa.R.C.P.
1019(i). Here, ADA Tully explained that the agreement not to sue was part
of the oral plea negotiations and was stated on the record at the plea
proceeding:
[W]e offered [Jones] two M-3’s with those stipulations,
which is there would be no civil suits either way and no
additional charges for anything that either party could have
done up to date that we were in court.
...
So the plea offer was conveyed to [defense counsel]. He
went back privately, spoke to Mr. Jones, came back, said
the terms were acceptable. While we were before
Magistrate [Paul] Ware, I laid out all of these terms.
[Defense counsel] concurred. Mr. Jones was nodding his
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head in affirmance of what the plea offer was. The plea was
accepted by Magistrate Ware.
N.T., 11/22/16, at 13-14. Therefore, because the agreement not to sue was
oral, Bohn was not required to attach a copy of the agreement to her
preliminary objections.
Next, Jones asserts that the trial court erred in concluding that an
agreement not to sue existed because Bohn failed to present competent
evidence of such an agreement. After considering the testimony presented at
the hearing by ADA Tully and Jones, as well as the transcript of the prior
Grazier hearing, the trial court concluded:
[ADA Tully’s] very clear recollection is that [Jones] and
[Bohn] have a long and problematic relationship history,
and that the reaching of a plea agreement was the
culmination and ending of that history and the problems that
arose therein. While [Jones] disputed the testimony of [ADA
Tully], he was unable to point to any evidence of a different
plea agreement, one which did not disallow the continued,
repetitive filing of civil actions concerning internet hacking
and stalking by [Jones] against [Bohn]. The Court found
credible the testimony of the [ADA], who had no interest or
stake in the antagonistic, litigious relationship between
[Jones] and [Bohn]. We currently rule that, due to the
agreement reached by the parties in regard to the previous
criminal charges against [Jones], the Amended Complaint
and the causes of action contained therein should be
dismissed pursuant to the plea bargain reached by [Jones]
and the Commonwealth that [Jones] would not initiate any
more civil actions against [Bohn] concerning Facebook
activity.
Trial Ct. Op., 12/28/16, at 2 (unpaginated). We conclude that the evidence
credited by the trial court established that, as part of the plea negotiations in
his criminal case, Jones agreed not to file any civil actions against Bohn
relating to Facebook activity. Accordingly, the trial court properly denied
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Jones’ motion to dismiss the preliminary objections and dismissed his
amended complaint.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
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4Jones devotes the remainder of his brief to contesting the validity of
the agreement not to sue on several grounds. To the extent Jones is
challenging the terms of his negotiated plea agreement with the
Commonwealth or his counsel’s ineffectiveness during the plea negotiations,
such matters are not properly before this Court. See Commonwealth v.
Duffey, 639 A.2d 1174, 1177 (Pa. 1994) (recognizing that defendant cannot
attempt to withdraw his criminal guilty plea in civil proceeding). Moreover,
Jones’ reliance on Employers Liability Assurance Corp. v. Greenville Bus.
Men’s Ass’n, 224 A.2d 620 (Pa. 1966), is misplaced. Employers Liability
involved the requirements for enforcement of an exculpatory clause in a civil
contract and is inapplicable to the enforcement of the terms of a negotiated
plea agreement in a criminal matter.
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Jones, R. v. Bohn, D.
Combined Opinion