J-A22028-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSAN L. CHRISTMAN, INDIVIDUALLY,                IN THE SUPERIOR COURT OF
AND TRADING AS CHRISTMAN LAKE                          PENNSYLVANIA

                            Appellant

                       v.

THE ESTATE OF JAMES P. MATHENY,
SR., KATHRYN P. MOYER, EXECUTRIX,
AND KATHRYN P. MOYER, INDIVIDUALLY

                            Appellee                  NO. 160 MDA 2015
                                                      NO. 161 MDA 2015


                 Appeal from the Order Entered August 12, 2014
                 In the Court of Common Pleas of Berks County
                      Orphans' Court at No(s): 06-11-1287


BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                          FILED AUGUST 28, 2015

        Appellant Susan L. Christman,1 individually and trading as Christman

Lake ( “Christman Lake”), appeals from the order of the Berks County Court

of Common Pleas denying Appellant’s motion for summary judgment and

granting the motion for partial summary judgment filed by Appellees the

Estate of James P. Matheny, Sr. (the “Estate”), Kathryn P. Moyer, Executrix

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Mrs. Christman’s husband, Dennis C. Christman, commenced the action,
but passed away prior to disposition. Mrs. Christman filed a substitution of
successor, substituting Mrs. Christman individually and trading as Christman
Lake.
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of the Estate, and Kathryn P. Moyer, Individually (“Moyer”).2 We affirm the

denial of Christman Lake’s motion for summary judgment and affirm the trial

court’s grant of the Estate’s and Moyer’s partial summary judgment motion

as to the breach of contract and declaratory judgment actions. We remand,

however, for further findings by the trial court on the counterclaim filed by

the Estate and Moyer pursuant to the Unfair Trade Practice Consumer

Protection Law (“UTPCPL”), 73 Pa.C.S. §§ 201-1, et seq.

       Christman Lake and James Matheny entered into a lease, dated

September 1, 1983, granting Matheny the right to reside at 260 South Shore

Drive, Lenhartsville, Berks County, Pennsylvania (“Property”), for a period of

99 years. Matheny and Moyer moved into the Property in 1983. From 1983

to the present, Moyer has resided on the Property.

       On August 16, 2011, Matheny died. Matheny’s Will provided that his

interest in the lease be devised to his significant other, Moyer.3 Specifically,

the Will, dated March 25, 2009, provided:

          My real estate including any and all Right, Title and
          Interest in Lease dated September 1, 1983 for said real
          estate (per Section 7 of said Lease) which is located at 260
____________________________________________


2
  Appellant filed two appeals from the order granting the Estate and Moyer’s
partial summary judgment and denying her motion for summary judgment.
The appeals were docketed at 160 MDA 2015 and 161 MDA 2015,
respectively. On March 17, 2015, this Court consolidated the appeals sua
sponte. Order, 3/17/2015.
3
  The Estate and Moyer maintain Matheny and Moyer were common law
husband and wife. Christman Lake disputes this.



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          South    Shore    Drive,   Lenhartsville,   Berks    County,
          Pennsylvania, to my significant other, [Moyer], should she
          survive me by thirty (30) days. Should my significant
          other, [Moyer], fail to survive me by thirty (30) days, I
          give such real estate including any and all Right, Title, and
          Interest in my lease dated September 1, 1983 for said real
          estate, in equal shares, to my friends, Scott Gardner and
          Connie Gardner or the survivor thereof.

Last Will and Testament of James P. Matheny, Sr., at 2 of 7, ¶7.

     The lease provided the following regarding assignments:

          In the event the Lessee shall have constructed a building
          on said premises, he may sell his interest therein and
          assign the within lease, provided, that all mechanic’s liens,
          taxes, assessments, and other charges shall have been
          paid to the date of such sale and assignment, that all
          covenants or agreements herein contained to be kept and
          performed by Lessee, his heirs and assigns, have been
          fully complied with at the date of such sale or assignment
          and that such sale or assignment is approved of in writing
          by the Lessor. The instrument of assignment shall provide
          that the assignee shall expressly assume the Lessee’s
          covenants and obligations hereunder, including the
          payment of all rent, taxes, assessments, liens, charges
          and encumbrances imposed upon the premises and
          improvements thereon.

Defendant’s Partial Motion for Summary Judgment at Exh. M-4 at ¶ 7.

     On     March   26,   2012,    Christman    Lake   filed   a   complaint   in

ejection/eviction in the Berks County Court of Common Pleas.         On May 3,

2012, the Estate and Moyer filed an answer containing new matter and

counterclaims.   On May 21, 2012, Christman Lake filed an answer to the

new matter and filed a new matter to the counterclaim. On May 29, 2012,

Moyer and the Estate filed an answer to Christman Lake’s new matter to the

counterclaim.



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       On July 29, 2013, Christman Lake filed a motion for summary

judgment and/or partial summary judgment. On September 3, 2013, Moyer

and the Estate filed a response to Christman Lake’s motion for summary

judgment and filed a motion for partial summary judgment.4 On October 2,

2013, Christman Lake filed an answer to the motion for partial summary

judgment.

       On November 6, 2013, the trial court issued an order denying both

motions without prejudice and transferring the case to the orphans’ court.

       On November 21, 2013, the Estate and Moyer filed a petition for

reconsideration of the motion for partial summary judgment. On December

6, 2013, Christman Lake filed an answer to the petition, requesting the court

deny the motion for partial summary judgment and requesting the court

enter summary judgment in its favor.             The parties filed supplemental

memoranda. On August 12, 2014, the court granted the motion for partial

summary judgment filed by the Estate and Moyer and denied Christman

Lake’s motion for summary judgment. The order provided:

          AND NOW, this 12th day of August, 2014, upon
          consideration of the record, the supplemental filings of the
          parties, and upon consideration of the fact that [Christman
          Lake] and/or [Christman Lake’s] predecessor clearly
____________________________________________


4
  The motion for partial summary judgment sought an order          “deciding all
questions of right to possession and assignment” in the Estate     and Moyer’s
favor and denying all claims asserted by Christman Lake, “but      not deciding
the appropriate measure of damages due” to the Estate              and Moyer.
Defendant’s Motion for Partial Summary Judgment at 3.



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        contemplated assignment and/or a successor lessee, in
        that [Christman Lake] and/or [Christman Lake’s]
        predecessor entered into a ninety-nine year lease with a
        party that was sui juris at the time of execution of said
        lease, it is hereby ORDERED and DECREED that [the Estate
        and Moyer’s] Motion for Partial Summary Judgment is
        GRANTED. It is FURTHER ORDERED that the [Christman
        Lake’s] Motion for Summary Judgment is hereby DENIED.

Order, 8/12/2014.

     On August 27, 2014, Christman Lake filed exceptions. The exceptions

were deemed denied by operation of law on December 26, 2014 and the

clerk of the orphans’ court entered this denial on the docket. On January

15, 2015, the clerk entered an unsigned order on the docket denying the

exceptions by operation of law.

     On January 20, 2015, Christman Lake filed a notice of appeal. Both

Christman Lake and the trial court complied with Pennsylvania Rule of

Appellate Procedure 1925.

     Appellant raises the following claims on appeal:

        A.1 Must a party claiming rights of assignment under a
        written lease prove compliance with the requirements of
        that written lease regarding any requested assignment?

        A.2 Can the identity of a personal representative of an
        [e]state acting as a representative of the [e]state be
        commingled with that person’s individual identity to create
        legal rights in the [e]state and/or individual?

        B. Where a party does not have any written contract or
        entitlement to possession to real estate, is that person a
        tenant at will whose tenancy can be terminated at will by
        [l]essor?

        C. Where a [c]ourt enters [p]artial [s]ummary [j]udgment
        pursuant to Pa.R.C.P. 1035.5, should it specify the facts


                                   -5-
J-A22028-15


         that are without controversy to direct further proceedings
         in the action based upon that order?

Appellant’s Brief at 6.

      A. Summary Judgment – Right of Possession

      Christman Lake’s first three issues essentially argue the trial court

erred in finding Moyer had a right of possession to the leasehold and

granting the Estate and Moyer’s motion for partial summary judgment.

      “[S]ummary judgment is appropriate only in those cases where the

record clearly demonstrates that there is no genuine issue of material fact

and that the moving party is entitled to judgment as a matter of law.”

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.2010) (quoting

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221

(Pa.2002)). A “trial court must take all facts of record and reasonable

inferences therefrom in a 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.” Id. (citing Toy v. Metropolitan Life Ins.

Co., 928 A.2d 186, 195 (Pa.2007)). Therefore, a trial court “may only grant

summary judgment ‘where the right to such judgment is clear and free from

all doubt.’” Id. (quoting Toy, 928 A.2d at 195). This Court “may reverse a

grant of summary judgment if there has been an error of law or an abuse of

discretion.”   Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926

A.2d 899, 902–03 (Pa.2007)).

      Christman Lake argues that, because Matheny did not construct a

building on the site, there was no right of assignment pursuant to the lease.

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Appellant’s Brief at 27. It argues the devise contained in the Will violates

the lease agreement because it occurred without notice and without written

approval of Christman Lake.       Id. at 27-29.          Christman Lake further

maintains   Moyer   has   no   possessory   right   as    the   Estate’s   personal

representative, because a personal representative has the right to take title

only if necessary to protect the rights of claimants. Appellant’s Brief at 33-

34 (citing 20 Pa.C.S. § 3311). It further maintains Fortunato v. Shenango

Limestone Co., 123 A. 482 (Pa.1924), relied on by the trial court, is

inapplicable. Id. at 34. Christman Lake concludes that, because Moyer has

no contract or entitlement to possession, she is a holdover tenant, and

Christman Lake can evict her. Appellant’s Brief at 35.

      The death of a lessee does not terminate a lease. Fortunato, 123 A.

at 482; 42 A.L.R. 4th 963, § 2[a] (“the general rule for real property leases

appears to be that the death of a lessee does not of itself constitute an event

which will terminate the contract, at least absent peculiar circumstances”);

cf. Kiernan v. Keeney, 62 Pa.D.&C. 469, 470 (C.P. Phila. 1947) (although,

without language to the contrary “the ordinary covenant in a lease against

subletting does not prohibit an assignment by the lessee’s executors,” but

overruling defendants demurrer because lease provided: “Any transfer by

process of law shall be deemed an assignment by the lessee,” which

constituted plain and unambiguous language that parties’ intent was to

prevent such transfers upon death). Further, regardless whether the non-

assignment clause would apply if no building was constructed, such clauses

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do not preclude the transfer of a lease upon the death of a leasee.    See 42

A.L.R. 4th 963 § 2[a] (Although “the courts construing the effect of general

anti[-]assignment clauses have generally, though not universally, held that

they did not apply to the death of the lessee (§ 7, infra), so that such

clauses would not prevent the continued existence of the lease upon such

death, the courts have given full effect to clauses specifically providing for

the effect of the lessee’s death on the continued existence (§ 8[b], infra) or

immediate termination (§ 8[a], infra) of the lease, the only questions in such

cases being either just what effect such a clause should mandate under the

circumstances as a whole, or whether such a clause has indeed been

included in the lease.”).5

____________________________________________


5
  Further, as the Estate and Moyer contend, the ninety-nine year lease
contemplated, and referenced, Matheny’s heirs. The trial court found:

          In addition, it is clear upon review of the lease that
          assignment is permissible. . . . [Christman Lake] entered
          into a ninety-nine year lease agreement with [] Matheny,
          who was sui juris when he signed the lease. Clearly,
          assignment was contemplated. In addition, paragraph six
          of the lease provides, “The lessee shall also save the
          Lessor harmless and free from loss, cost, damage or
          expense arising out of any accident or other occasion
          causing injury to any person or property and due directly
          or indirectly from the use or occupancy of the premises or
          any of the adjacent facilities known as [‘]Christman Lake
          Development[’] by the Lessee, his heirs or assigns.”
          (Emphasis added).

Opinion, 3/10/2015, at 8.




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       Accordingly, pursuant to Matheny’s Will, the remaining interest in the

lease transferred to Moyer as Matheny’s executrix, and Moyer, as executrix,

may transfer the lease to Moyer, as the devisee under the Will. 6 The trial

court did not err in granting the Estate and Moyer’s motion for partial

summary judgment as to the breach of contract and declaratory judgment

claims and in denying Christman Lake’s motion for summary judgment.

       B. Summary Judgment - UTPCPL Claim

       Christman Lake next argues the trial court should have specified the

facts that are without controversy or the relief which is not in controversy

and directed further proceedings.              Appellants’ Brief at 36-40.   Christman

Lake argues the trial court only addressed Moyer’s present entitlement to

the lease, not whether Christman Lake violated the UTPCPL. Id.7
____________________________________________


6
   The trial court found Moyer had a right to possess the leasehold as
executrix of the Estate and the Estate had a right to assign the leasehold to
Moyer because the non-assignment clause did not apply because Matheny
did not build a building on the premises. We, however, can affirm the trial
court on any basis. Commonwealth v. Clemens, 66 A.3d 373, 381 n.6
(Pa.Super.2013).
7
  Christman Lake also argues the trial court did not address other aspects of
the Estate and Moyer’s motion for partial summary judgment, including the
Estate and Moyer’s arguments that: (1) because the Estate and Moyer had a
present possessory leasehold interest, summary judgment was properly
entered against Christman Lake as to the counts raised in Christman Lake’s
complaint; and (2) the trial court should enter a declaration that the Estate
and Moyer had a right to transfer the lease without Christman Lake’s
approval. Appellant’s Brief at 37. As to the counts raised in Christman
Lake’s complaint, each relied on Christman Lake having a present
possessory interest in the leasehold, which it does not, and, therefore, the
trial court’s order addressed this concern. See Complaint. As to the grant
(Footnote Continued Next Page)


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        The Counterclaims filed by the Estate and Moyer include a claim

Christman Lake violated the UTPCPL because Christman Lake was a seller of

goods and services, the Estate and Moyer were “consumers,” the lease was

entered into primarily for personal, family, or household purposes, and the

Estate and Moyer suffered ascertainable loss of money or property as a

result.   Defendants’ Answer to Plaintiff’s Complaint at New Matter at Count

III.8

        The trial court’s conclusion that the Estate and Moyer had the right to

possess the leasehold does not, alone, support a summary judgment finding

as to the UTPCPL claim.          As to its UTPCPL claim, Moyer sought summary

judgment, arguing she had a right to bring a private right of action,

Christman Lake committed an unlawful action in arbitrarily refusing to

approve the assignment, this refusal caused Moyer to suffer a loss of

property, and this refusal caused Moyer to sustain actual damages.

                       _______________________
(Footnote Continued)

of summary judgment declaring that the Estate and Moyer have a right to
transfer the lease without Christman Lake’s approval, such right would exist
for transfer upon death. The grant would not impact future transfers, and
the lease provisions would apply.
8
  The claimed unfair practices included that Christman Lake claimed the
lease contained a confessed judgment clause and engaged in other
fraudulent or deceptive conduct which has created a likelihood of confusion
by attempting (1) to defraud the Estate and Moyer, (2) to force Moyer to
sign “the current lease and rules,” which would undermine her rights, and
(3) to add provisions to the lease to unilaterally increase the rent.
Defendants’ Answer to Plaintiff’s Complaint at ¶ 72.




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Memorandum in Support of Defendants’ Response to Plaintiff’s Motion for

Summary Judgment and in Support of Defendants’ Request for Partial

Summary Judgment at 10-11.9 Both the Estate and Moyer sought summary

judgment that Christman Lake violated the UTPCPL, but asked that the court

not decide damages. Id. at 11.

       The trial court did not make any ruling as to the UTPCPL claim and we

remand to the trial court for additional findings as to the claim.

       C. Christman Lake did not Waive Its Claims

       The trial court and the Estate and Moyer maintain Christman Lake

waived any issues because their 1925(b) statement included 36 allegations

of error, many of which were frivolous, and the statement could “hardly be

described as concise.”       Opinion, 3/10/2015, at 6.   We find the Estate and

Moyer did not waive the issues. See Eiser v. Brown Williamson Tobacco

Corp., 938 A.2d 417, 428 (Pa.Super.2007) (“the number of issues raised in

____________________________________________


9
  The title of the UTPCPL claim raised in the answer states the UTPCPL claim
is asserted by the Estate and Moyer against Christman Lake. Defendants’
Answer to Plaintiff’s Complaint at ¶ 72. The memorandum in support of the
partial motion for summary judgment states the UTPCPL claims is “Moyer’s
claim” and the argument contained therein referenced the loss and damages
suffered by Moyer. Memorandum in Support of Defendants’ Response to
Plaintiff’s Motion for Summary Judgment and in Support of Defendants’
Request for Partial Summary Judgment at 10-11. The conclusion of the
summary judgement UTPCPL section, however, states “this [c]ourt should
grant summary judgment in favor of [the Estate and Moyer] finding that
[Christman Lake] violated the UTPCPL and should not yet decide the amount
of damages owed to [the Estate and Moyer].” Id. at 11.




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a Rule 1925(b) statement does not, without more, provide a basis upon

which to deny appellate review where an appeal otherwise complies with the

mandates of appellate practice”).     Although the statement was lengthy,

Christman Lake had no guidance as to the basis of the grant of partial

summary judgment, which was in a one-paragraph order. Further, the trial

court was able to determine the main issue raised, i.e., that it erred in

granting partial summary judgment.

      D. Christman Lake Timely Filed Its Notice of Appeal

      Because the trial court granted a motion for partial summary judgment

which determined an interest in real property, Appellants arguably had to file

their notice of appeal within 30 days of the date of the order granting partial

summary judgment.      Pa.R.A.P. 342(a)(6) (“An appeal may be taken as of

right from the following orders of the Orphans’ Court Division: . . . (6) An

order determining an interest in real or personal property.”); Estate of

Moskowitz, 115 A.3d 372, 378 n.5 (Pa.Super. Feb. 4, 2015) (“Under the

Pennsylvania Rules of Appellate Procedure, Appellants were obligated to

appeal the court’s grant of partial summary judgment immediately to avoid

waiver. See Pa.R.A.P. 342(a)(6), (c)).”). We need not address this issue,

however, as there is no docket entry indicating the order granting partial

summary judgment was mailed to the parties. Vertical Resources, Inc. v.

Bramlett, 837 A.2d 1193 (Pa.Super.2003) (appeal timely because no

indication on docket notice of entry of order was sent). The order itself has

a stamp stating:

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        August 12, 2014, Certified Copy of Order issued to Counsel
        of Record and/or Unrepresented parties being see list
        above by first class and inter-office mail by Register of
        Wills.

Order, 8/12/2014.      The docket, however, contains no entry indicating

service, as required by Pennsylvania Rule of Civil Procedure 236(b).    See

Pa.R.Civ.P. 236(b) (“The prothonotary shall note in the docket the giving of

notice and, when a judgment by confession is entered, the mailing of the

required notice and documents”). Therefore, the time to file an appeal did

not begin to run.   Pa.R.A.P. 108(b) (“The date of entry of an order in a

matter subject to the Pennsylvania Rules of Civil Procedure shall be the day

on which the clerk makes the notation in the docket that notice of entry of

the order has been given as required by Pa.R.Civ.P. 236(b).”).

     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/28/2015




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