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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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J-A02029-16


        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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J-A02029-16



              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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J-A02029-16


      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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J-A02029-16


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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