J-S95019-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAYMOND JOSEPH SMOLSKY                          IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                   v.

SAMUEL C. TOTARO, JR.

                                                      No. 1286 EDA 2016


              Appeal from the Order Entered March 11, 2016
              In the Court of Common Pleas of Bucks County
                    Civil Division at No(s): 2015-03051


BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                            FILED APRIL 19, 2017

     Raymond Joseph Smolsky appeals, pro se, from the March 11, 2016

order entered in the Bucks County Court of Common Pleas sustaining

Samuel C. Totaro, Jr.’s preliminary objections to Smolsky’s complaint and

dismissing the complaint with prejudice. We affirm.

     This appeal arises from a dispute over a property belonging to the

estate of Smolsky’s late father.     Included in the estate was a property

located at 717 and 721 Forest Lane, Pottsville, Pennsylvania (“Forest Lane

property”), which Smolsky, who is currently incarcerated at the State

Correctional Institution-Mahanoy, sought to use as a residence when

released on parole.     Accordingly, Smolsky offered, in writing, his residual

interest in the estate to purchase the Forest Lane property. Totaro, who was
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appointed as administrator of the estate d.b.n.c.t.a., 1 mailed a letter to the

father’s five residual heirs, including Smolsky, informing them that as

administrator of the estate, Totaro was required to gather the estate assets,

liquidate those assets to pay the estate’s debts, taxes and expenses, and

finally distribute the remaining assets to the residual heirs.         In the letter,

Totaro noted that Smolsky had expressed an interest in purchasing the

Forest Lane property, which was appraised at $110,000. Totaro also stated

that if Smolsky did not purchase the property, then Totaro would list the

property for sale.

       On January 2, 2015, Smolsky filed a motion in the orphans’ court of

the   Bucks    County     Court    of   Common   Pleas   for   court   approval   to

lease/purchase the Forest Lane property.         On January 22, 2015, Smolsky

sent a letter to Totaro, asking for authorization to lease or purchase the

Forest Lane property, by allowing him to withdraw the motion pending in the

orphans’ court. Totaro responded by letter dated January 23, 2015, in which

Totaro stated that Smolsky had made an offer to lease the property for $500

per month. Totaro informed Smolsky that Wells Fargo Bank had a lien on

the property that required a payment of $1,572 per month.               Totaro also

responded to Smolsky’s assertion that his brother and sister would give him
____________________________________________


       1
         Letters of administration de bonis non cum testamento annexo
(“d.b.n.c.t.a.”) are granted when the decedent died testate and “an entire
vacancy occurs in the office of personal representative before administration
is completed.” 20 Pa.C.S. § 3159.



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their residual shares to purchase the Forest Lane property, stating that he

would need written confirmation from them confirming that they would

relinquish their shares.      Totaro further stated that he remained concerned

that he would not be able to make any distributions to the residual heirs.

The letter also stated that he would be willing to consider a more specific

plan that allowed the estate to pay the expenses on the Forest Lane

property, but that the estate would continue to market the property for sale.

       On March 23, 2015, Totaro sent another letter to Smolsky, indicating

that the estate had entered into an agreement of sale for the Forest Lane

property.     Totaro also acknowledged Smolsky’s pending motion in the

orphans’ court and, while asserting that he had authority to sell the property

without court authorization and reject Smolsky’s lease offer, noted he

requested that the orphans’ court schedule a hearing on the petition. During

the pendency of this motion, on April 22, 2015, Smolsky filed a civil

complaint against Totaro, asserting fraud and intentional misrepresentation

claims based on the negotiations in the sale of the Forest Lane property. He

attached to his complaint all of the above-referenced letters.     On July 1,

2015, the orphans’ court denied Smolsky’s motion for approval to lease or

purchase the Forest Lane property.2


____________________________________________


       2
       On appeal, this Court affirmed the orphans’ court’s denial of the
motion. See In re Estate of Leonard J. Smolsky, Deceased, 141 A.3d
586 (Pa.Super. 2016) (unpublished memorandum).



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       On November 23, 2015, Smolsky served his civil complaint on Totaro.

On December 11, 2015, Totaro filed preliminary objections, alleging that the

complaint sought to relitigate the issue brought before the orphans’ court, to

litigate an issue still pending before this Court on appeal, see supra note 2,

and was insufficient because Smolsky failed to plead fraud with particularity.

Smolsky responded to the preliminary objections on December 31, 2015.

On March 15, 2016, the trial court sustained Totaro’s preliminary objections

and dismissed Smolsky’s complaint with prejudice.       On March 29, 2016,

Smolsky filed a motion for oral argument to open judgment, along with a

memorandum of law in support. On April 15, 2016, Smolsky filed a notice of

appeal.3

       Smolsky raises two issues on appeal:

            I.   DID THE LOWER COURT SHOW ILL-WILL OR BIAS
                 TO [SMOLSKY] WITH FAVORITISM TO [TOTARO] BY
                 MISCONSTRUING THE CAUSE OF ACTION AND
____________________________________________


       3
         Smolsky did not file his notice of appeal within 30 days as required
by Pennsylvania Rule of Appellate Procedure 903, as the Bucks County
Prothonotary received this notice of appeal on the 31st day. Smolsky claims
that he complied with Rule 903’s requirement because he delivered the
notice of appeal to prison officials for mailing on April 8, 2016, thus meeting
the prisoner mailbox rule. See Thomas v. Elash, 781 A.2d 170, 176
(Pa.Super. 2001) (extending prisoner mailbox rule to prisoner pro se appeals
in civil matters). However, Smolsky has the burden of proving that he
delivered the notice of appeal for mailing within the 30-day window. Id.
The only proof that Smolsky provides is an unsworn verification, which is
insufficient to prove the date of mailing. Id. “Normally, in such a case, we
would remand to the trial court for a hearing on the issue.” Id. However,
no remand is necessary because we conclude that Smolsky is not entitled to
relief on the merits. Id.



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                  FACTS OF THE CASE AS WELL AS IGNORING
                  DOCUMENT    EVIDENCE   ATTACHED   TO   THE
                  COMPLAINT’S PRIVATE RIGHT CAUSE OF ACTION
                  PLEADING FRAUD, FRAUDULENT REPRESENTATION
                  AND         INTENTIONAL         FRAUDULENT
                  MISREPRESENTATION CONDUCT AND ACTIONS
                  COMMITTED BY [TOTARO]?

            II.   BASED UPON [SMOLSKY]’S CLAIMS OF “NEWLY
                  DISCOVERED EVIDENCE” WAS IT ERROR TO NOT
                  HOLD   AN   ORAL  ARGUMENT   HEARING  ON
                  [SMOLSKY]’S TIMELY FILED MOTION TO OPEN
                  JUDGMENT?

Smolsky’s Br. at 4 (suggested answers omitted).

       Our standard of review of an order sustaining or overruling 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.”    Perelman v. Perelman, 125 A.3d 1259, 1263 (Pa.Super. 2015)

(quoting Haun v. Comm. Health Sys., Inc., 14 A.3d 120, 123 (Pa.Super.

2011)) (internal citations omitted), app. denied, 141 A.3d 435 (Pa. 2016).

              Where affirmance of the trial court’s order sustaining
           preliminary objections would result in the dismissal of an
           action, we may do so only when the case is clear and free
           from doubt.

              To be clear and free from doubt that dismissal is
           appropriate, it must appear with certainty that the law
           would not permit recovery by the plaintiff upon the facts
           averred. Any doubt should be resolved by a refusal to
           sustain the objections. We review the trial court’s decision
           for an abuse of discretion or an error of law. A demurrer
           tests the sufficiency of challenged pleadings. Fact-based
           defenses, even those which might ultimately inure to the
           defendant's benefit, are thus irrelevant on demurrer.



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Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539, 544

(Pa.Super. 2005) (quoting Werner v. Plater-Zyberk, 799 A.2d 776, 784

(Pa.Super. 2002)) (internal citations and quotation marks omitted).

       First, Smolsky asserts that the trial court improperly sustained Totaro’s

preliminary objections and dismissed the complaint based on bias and

favoritism toward Totaro.4        Smolsky’s Br. at 11.   Smolsky argues that his

civil complaint seeks to hold Totaro personally liable for his dealings with

Smolsky.     Id.    Further, Smolsky contends that the orphans’ court lacked

jurisdiction to preclude Smolsky from advancing his fraud and intentional

misrepresentation claims. Id. at 12. He asserts that the trial court “does

not address the well pled facts of this case at all,” instead “discuss[ing

Smolsky]’s incarceration with more vim and vigor far beyond the scope of

the case litigation issues and facts pled while ignoring the ‘fraud’ causes of

action completely.”      Finally, Smolsky argues that his fraud and intentional

misrepresentation claims are properly pled. Id. We disagree.
____________________________________________


       4
        Preliminarily, we conclude that Smolsky’s claims that the trial court
showed bias and favoritism to Totaro are meritless. Smolsky presents no
evidence of his claims, instead baldly asserting that the trial court’s ruling
that Smolsky was collaterally estopped from relitigating the issue of Totaro’s
duty “shows bias and favoritism towards [Totaro] because he is an attorney”
and because “[Smolsky] is incarcerated on totally unrelated matters.”
Smolsky’s Br. at 11. Because “claims [of bias] against a trial judge should
not be made without clear support for the same in the record,” Zdrok v.
Main Line Nat. Mortg. Co., 921 A.2d 1226, 1229 (Pa.Super. 2007), and
“[a]dverse rulings alone do not establish the requisite bias warranting
recusal,” Arnold v. Arnold, 847 A.2d 674, 681 (Pa.Super. 2004), we reject
Smolsky’s claims of bias and favoritism.



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      “Pennsylvania is a fact-pleading jurisdiction.” Sevin v. Kelshaw, 611

A.2d 1232, 1235 (Pa.Super. 1992).         “A complaint must therefore not only

give the defendant notice of what the plaintiffs’ claim is and the grounds

upon which it rests, but it must also formulate the issues by summarizing

those facts essential to support the claim.” Id.

      Under Pennsylvania Rule of Civil Procedure 1019(b), plaintiffs who

assert fraud claims must aver fraud or mistake with particularity. This rule

is meant to “protect those against whom generalized and unsupported fraud

may be levied.”     Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072

(Pa.Super. 2003). “Thus, a party raising a claim of fraud must set forth in

its pleadings specific facts to support the alleged fraud.” Id.

           Averments of fraud are meaningless epithets unless
           sufficient facts are set forth which will permit an inference
           that the claim is not without foundation or offered simply
           to harass the opposing party and to delay the pleader's
           own obligation. . . .       The pleadings must adequately
           explain the nature of the claim to the opposing party so as
           to permit him to prepare a defense and they must be
           sufficient to convince the court that the averments are not
           merely subterfuge.

Id.   at     1072-73   (quoting   Bata    v.   Central-Penn     Nat.   Bank   of

Philadelphia, 224 A.2d 174, 179 (Pa. 1966)).

      To prove fraud or intentional misrepresentation, the plaintiff must

establish:

           (1) a representation; (2) which is material to the
           transaction at hand; (3) made falsely, with knowledge of
           its falsity or recklessness as to whether it is true or false;
           (4) with the intent of misleading another into relying on it;


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           (5) justifiable reliance on the misrepresentation; and (6)
           the resulting injury was proximately caused by the
           reliance.

Milliken v. Jacono, 60 A.3d 133, 140 (Pa.Super. 2012).

         In his complaint, Smolsky alleges that Totaro falsely represented that

he would negotiate with Smolsky regarding the Forest Lane property and

beginning on January 14, 2015, Totaro “beg[a]n a vexatious plight of deceit,

fraud,       fraudulent    representation     and     intentional   fraudulent

misrepresentation of facts to falsely mislead [Smolsky] into relying on those

facts as true all to the harms, injury and damage to [Smolsky] when

[Totaro] never intended to deal truthfully or fairly with [Smolsky].” Compl.

at ¶ 4-5. Smolsky alleges that, among other things, Totaro informed him,

through a secretary, that there was a conflict of interest that prevented

Totaro from discussing the estate administration with Smolsky.          Id. ¶ 5.

Smolsky continues by asserting that the secretary informed him that all his

concerns should be placed in writing and Totaro would address each of those

in a separate letter. Id. ¶ 6. According to Smolsky, these delays harmed

his inheritance and allowed Totaro to “pad his pockets with undue extra un-

called for work.” Id.

         Smolsky further avers that on January 22, 2015, Totaro told Smolsky

that if he withdrew the motion pending before the orphans’ court, then

Totaro would sign Smolsky’s parole home plan form and allow Smolsky to

lease or purchase the Forest Lane property. Id. ¶ 7. He then alleges that

Totaro “continued not to deal with [him] all to [Smolsky]’s continued


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confinement, injury, harms and damage by [Totaro] delaying administration

under false pretenses.” Id. (emphasis in original). Smolsky then refers to a

January 23, 2015 letter from Totaro, wherein Totaro stated he would

continue to negotiate with Smolsky if Smolsky could provide a reasonable

plan.   Id. ¶ 8.   Smolsky avers that this was ongoing fraud, specifically to

deprive Smolsky of the Forest Lane property and to “pad [Totaro’s] own

administrative pockets through ‘self-dealing.’” Id.

        Smolsky then avers that on March 23, 2015, Totaro wrote another

letter to Smolsky informing Smolsky that an agreement of sale was in place

for the Forest Lane property, that Totaro had the authority to enter into this

agreement of sale, and that he would abide by the instructions of the court.

Id. ¶ 9. According to Smolsky, however, Totaro “prior thereto continuously

represented to [Smolsky] and all the beneficiaries that [Totaro] could NOT

sell any estate properties of the Deceased to a beneficiary without Court

approval or the consent of all beneficiaries agreeing to it.”   Id.   Smolsky

alleges that the prior communications were thus fraud and intentional

misrepresentations designed “to keep the realty of the Deceased from

Smolsky and the other beneficiaries” and “create work to deprive [Smolsky]

of his inheritance.” Id.

        Smolsky also attached the letters, which include his own handwritten

annotations. A letter from Totaro to the beneficiaries on December 17, 2014

states that Smolsky has an interest in buying the property through his

distributive share and asks the other beneficiaries to respond within 10 days

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if they object to such a sale. The next letter is from Smolsky to Totaro on

January 14, 2015, wherein he asserts that there is no conflict of interest

between himself and Totaro and attached a “boiler-plate lease-purchase,

proposed-agreement on property.” Next is a letter from Smolsky to Totaro

on January 22, 2015, wherein Smolsky expresses his understanding that

Totaro “will promptly authorize me to lease/purchase the [Forest Lane]

property . . . so that [Smolsky] may have a place to live and reside . . .,

upon receipt of [an] enclosed praecipe and its filing to withdraw [the]

motion.”

     The next attachment is a letter from Totaro to Smolsky on January 23,

2015, wherein Totaro explains that the estate is having difficulty paying off

various debts.    Totaro continues that the lease/purchase agreement

enclosed with Smolsky’s earlier letter, which allegedly offered to lease the

Forest Lane property at $500 per month, would not cover the lien Wells

Fargo held on the property for $1,572 per month. With respect to Smolsky’s

claim that his brother and sister would give up their distributive shares to

help Smolsky purchase the property, Totaro responds that he would need

something in writing from each of them and would need to determine how

the other heirs would be compensated. Specifically, Totaro states that “once

you [(Smolsky)] give me a more specific plan that will pay all the expenses

with regard to the Forest Lane property, I will be happy to submit the

proposal to the other heirs for approval.” Notably, at the end of the letter,

Totaro states that the estate “will continue to market the property, but will

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continue to negotiate with you if you can provide . . . a reasonable plan.”

Smolsky finally attaches a letter from Totaro dated March 23, 2015, which

states:

              This is to inform you that I have entered into an
           Agreement of Sale for the [Forest Lane property]. The
           sale price is $100,000 and settlement is to occur on or
           before May 16, 2015.

              I also understand that you have filed a petition to have
           me, as Administrator d.b.n., c.t.a of the Smolsky estate
           enter into a lease agreement with you for this property.
           Although it is my position that I as Administrator have the
           authority to enter into an Agreement of Sale for this
           property without court authorization, and also to reject
           your lease agreement offer, I have requested the
           [orphans’ c]ourt to schedule a hearing on your petition so
           you could advise the court as to your position. I will abide
           by the instructions given to me by the [orphans’ c]ourt.

       We conclude that Smolsky has failed to sufficiently and particularly

plead his fraud and related intentional misrepresentation claims, albeit on a

different basis than the trial court.5             Smolsky’s claims of fraud, which

contend that Totaro caused a delay in the distribution of estate assets by

failing to negotiate Smolsky’s desired purchase of the Forest Lane property,

is belied by the documents Smolsky attached to his complaint.                These

____________________________________________


       5
         This Court is not bound by the rationale of the trial court, and we
may affirm on any basis. See In re Jacobs, 15 A.3d 509, 509 n.1
(Pa.Super. 2011). In sustaining Totaro’s preliminary objections, the trial
court found that Smolsky’s complaint failed to plead any injury and, even if
Smolsky could prove some form of injury, he failed to plead how the injury
was proximately caused by his reliance on Totaro’s statements. Trial Ct.
Op., 6/14/16, at 12-13.



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documents, in contrast to Smolsky’s pleadings, confirm that Smolsky cannot

plead, sufficiently or particularly, that Totaro made a false statement or,

even if Totaro made a false statement, that such a statement was material

to the discussions regarding the Forest Lane property.

      The December 17, 2014 letter shows that Smolsky, a residual heir of

the estate, expressed an interest in the Forest Lane property, which Totaro

conveyed to the other residual heirs of the estate.      Smolsky then made a

unilateral, unbinding offer on the Forest Lane property, which Totaro, as the

administrator of the estate, could not accept because it would not cover the

bank lien that encumbered the Forest Lane property, a debt chargeable to

the estate. In response, Totaro gave Smolsky the option to make an offer

that would cover these encumbrances while the estate continued to search

for a buyer.    Two months later, Totaro settled on a third-party purchaser

who offered an amount $10,000 less than appraised value of $110,000.

Under these circumstances, Smolsky has not pled with sufficient particularity

that Totaro made any false statement. Rather, the documents that Smolsky

attached confirm that Totaro explained to Smolsky why he could not accept

the offer and allowed Smolsky to present an offer that would be amenable to

the estate. Because “the sine qua non of actionable fraud is the showing of

deception[,]” see Frowen v. Blank, 425 A.2d 412, 415 (Pa. 1981), and

Smolsky’s pleadings fail to show any deception by Totaro, we conclude that

Smolsky has not pled his fraud and intentional misrepresentation claims

sufficiently or particularly.

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        Further, even if any of Totaro’s statements to Smolsky could be

considered false, Smolsky fails to plead how these statements were material

to any discussions surrounding the lease or sale of the Forest Lane property.

“A misrepresentation is material if it is of such character that had it not been

made, . . . the transaction would not have been consummated.” Sevin v.

Kelshaw, 611 A.2d 1232, 1237 (Pa.Super. 1992).               A review of the

complaint and attached documents fails to show that              had Totaro’s

statements been false, Smolsky would have discontinued his pursuit of the

Forest Lane property.       Contrarily, the pleadings and documents show that

Smolsky continued to push an offer that was untenable to the estate and

Totaro left Smolsky the option to put forth another proposal.          Because

Smolsky fails to plead how any of Totaro’s communications changed his

position regarding the Forest Lane property, we conclude that he has not

pled materiality sufficiently or particularly.

        For these reasons, we conclude that Smolsky’s pleading deficiencies

are substantive, as he will not be able to plead a transaction between

himself and Totaro with sufficient particularity.6   See Budd, 832 A.2d at

1073.


____________________________________________


        6
        In light of our conclusion regarding Smolsky’s failure to plead fraud
and his other related claims with specificity or particularity, we need not
address Totaro’s other preliminary objections – a demurrer based on res
judicata and pendency of a prior action – which were sustained by the trial
court.



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       Next, Smolsky contends that the trial court erred in failing to hold a

hearing on his “timely filed motion to open judgment.” Smolsky’s Br. at 15.

Smolsky contends that he found new evidence that shows Totaro lied to the

orphans’ court and would support a motion to open judgment.            Id. at 16.

According to Smolsky, the trial court should have allowed him to argue his

motion to open judgment, despite “some administrative snafu[7] [that] may

have delayed the lower court from reviewing [his] pending motion for oral

argument to open judgment.”8 Id. We disagree.

       Preliminarily, we note that the certified record contains no petition to

open judgment; the motion Smolsky filed was titled “motion for oral

argument to open judgment.”            The trial court returned Smolsky’s motion,

stating that it was inappropriate for submission under Bucks County Rule of


____________________________________________


       7
        The “administrative snafu” to which Smolsky refers was the trial
court returning Smolsky’s motion because it was inappropriate for
submission under Bucks County Local Rule of Civil Procedure 208.3(b) and
was unclear regarding the relief sought, as there was no judgment in the
matter and no motion to open judgment was pending. See Return of
Application, 4/14/16.
       8
        Smolsky’s remaining arguments repeat his fraud averments, at one
point even suggesting that Totaro should be disbarred, Smolsky’s Br. at 17,
and that Totaro is equitably estopped from changing his position before the
trial court in the civil matter, id. at 18. While we are “wiling to liberally
construe materials filed by a pro se litigant,” O’Neill v. Checker Motors
Corp., 567 A.2d 680, 682 (Pa.Super. 1989), Smolsky failed to raise these
issues in his Pennsylvania Rule of Appellate Procedure 1925(b) statement.
See Pa.R.A.P. 1925(b)(4)(vii). Therefore, he had waived these claims.




                                          - 14 -
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Civil Procedure 208.39 and that it was unclear regarding the relief sought, as

“[n]o judgment has been entered in this matter,” and “[n]o motion to open

judgment is pending.”          Return of Application, 4/22/16.   Further, even if

judgment had been entered and Smolsky had filed his motion correctly,

Smolsky did not file a petition to open judgment in accordance with

Pennsylvania Rule of Civil Procedure 2959. Therefore, no motion existed

upon which the trial court could schedule an oral argument.

       Order affirmed.




____________________________________________


       9
           Bucks County Rule of Civil Procedure 208.3(b) provides:

               (1)   This rule shall govern disposition of:

                     (a) rules to show cause to which responses in
                        opposition have been filed;

                     (b)     preliminary objections;

                     (c)     motions for judgment on the pleadings;

                     (d)     motions for summary judgment;

                     (e) objections to written discovery requests;
                        and

                     (f)     such other miscellaneous applications as
                           may be designated by the Court.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/19/2017




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