J-A27037-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    LEE E. CLAYPOOL                            :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    OLIVER H. CLAYPOOL, JR.,                   :
                                               :
                      Appellant                :       No. 616 WDA 2017

             Appeal from the Judgment entered on March 14, 2017
               In the Court of Common Pleas of Clarion County
                      Civil Division at No(s): 894 CD 2014

BEFORE: BENDER, P.J.E., SHOGAN, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                         FILED DECEMBER 12, 2017

        Oliver H. Claypool, Jr. (“Oliver”), appeals, pro se, from the Judgment

entered against him and in favor of the plaintiff in the underlying action, Lee

E. Claypool (“Lee”).1 We affirm.

        The trial court set forth the relevant history underlying this appeal as

follows:

        In 2011, [Oliver] filed a quiet title action against [Lee, Oliver’s
        brother,] at case number 566 CD 2011 (hereinafter the “2011
        Case”). In this action, [Oliver] attempted to gain title [to] a
        parcel of land in Clarion County that he and his ex-wife[,
        Elizabeth J. Claypool (“Elizabeth”),] had conveyed to “Lee E.
        Claypool” in 1980 [(hereinafter the “Property”)]. [Oliver] argued
        that he had been using the pseudonym Lee Edward Claypool,
        and that the 1980 deed conveyed the [P]roperty to himself
        under this name. [Lee] … maintained that the 1980 deed
        transferred the [P]roperty from [Oliver] to [Lee]. The 2011 Case
____________________________________________


1
    Relevant to this case, Lee’s middle name is Emerson.
J-A27037-17


       terminated by summary judgment in favor of [Lee] on January
       4, 2013. [Lee] then filed the above-captioned action [against
       Oliver] for wrongful use of civil proceedings under the Dragonetti
       Act, seeking to recover for the attorney’s fees [that Lee]
       expended in defending against the 2011 Case. See 42 Pa.C.S.A.
       § 8351, et seq.

             At a hearing in chambers before the trial began, [Oliver,
       proceeding pro se,] offered as exhibits two court opinions in
       support of his defense that he brought the 2011 Case in good
       faith [(hereinafter the “Opinions”)]. [The trial court] allowed
       [Oliver] to read portions of the [O]pinions to the jury and to
       explain why he thought the 2011 Case was justified based on
       those [O]pinions. [Notably, the trial court] did not allow the jury
       to have copies of the [Opinions] during its deliberations.

Trial Court Opinion, 5/18/17, at 1-2.

       At the close of trial, the jury entered a verdict against Oliver in the

amount of Lee’s legal fees incurred in the 2011 Case, $12,841.14.            Oliver

then filed a pro se Motion for Post-Trial relief, which the trial court denied by

an Order entered on March 13, 2017.              On March 14, 2017, Lee filed a

Praecipe seeking entry of judgment in his favor.         On the same date, the

Prothonotary entered judgment against Oliver in the amount of $12,841.14.

       Oliver timely filed a Notice of Appeal,2 in response to which the trial

court ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors



____________________________________________


2
  Though Oliver purported to appeal from the March 13, 2017 Order denying
his Motion for Post-Trial relief, it is settled that, “[u]nder our Appellate Rules,
an appeal in a civil case in which post-trial motions are filed lies from the
entry of judgment.” K.H. v. J.R., 826 A.2d 863, 871 (Pa. 2003) (citing
Pa.R.A.P. 301). We have altered the caption accordingly.



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J-A27037-17


complained of on appeal. Oliver filed a timely Concise Statement, and the

trial court then issued a Pa.R.A.P. 1925(a) Opinion.

      Oliver now presents the following issues for our review:

      1. Whether the trial court erred when[,] although allowing
         [Oliver] to read excerpts from [the O]pinions … to show that
         [Oliver] acted appropriately in filing his action [], [the trial
         court] refus[ed] to admit into evidence the actual true copies
         of the [] [O]pinions?

      2. Whether the absence of an indispensable party[, Elizabeth,]
         in the underlying action resulted in the decision therein being
         void and due no respect[,] and therefore[,] as a matter of
         law[,] not a determination in favor of [Lee,] so that [Lee]
         may not prevail in his action for improper use of civil
         proceedings?

Brief for Appellant at 5.

      In his first issue, Oliver argues that the trial court erred by denying his

request to permit the jury to have copies of the Opinions during

deliberations.   See id. at 15-17.     Oliver contends that “where [Lee] was

allowed to introduce into evidence [at trial] … the [trial c]ourt Order in [the

2011] Case …, in its written form, in its entirety, it is patently unfair for the

court not to allow the jury to have the [] [O]pinions offered by [Oliver].” Id.

at 15; see also id. at 16 (asserting that, therefore, “the jury only had the

opportunity to consider one side of the story.”). However, Oliver concedes

that “[w]hile the court may make exhibits available to the jury during its

deliberations, it is not required to do so.”   Id. at 15.

      It is settled law that “[t]he determination of what documents should

go out with the jury is within the discretion of the trial judge.”      Ratti v.

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J-A27037-17


Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 710 (Pa. Super. 2000);

see also Williams v. Lumbermen’s Ins. Co., 1 A.2d 658, 662 (Pa. 1938)

(same).   Pennsylvania Rule of Civil Procedure 223.1, Conduct of the Trial,

provides, in pertinent part, that “[t]he court may … make exhibits available

to the jury during its deliberations[.]” Pa.R.C.P. 223.1(d)(3) (emphasis

added).

      In its Rule 1925(a) Opinion, the trial court explained its reasons for

not allowing the jury to take copies of the Opinions into its deliberations,

stating as follows:

      I determined that reading and interpreting case law was beyond
      the ken of a jury of laypeople, and allowing the jury to view the
      full [O]pinions during its deliberations had potential to create
      confusion. The jury’s role was properly limited to making a
      factual determination as to [Oliver’s] motive in filing the 2011
      Case. Therefore, this complaint of error is without merit.

Trial Court Opinion, 5/18/17, at 2. As we discern no error or abuse of the

trial court’s discretion in this regard, and agree with its rationale and

determination, Oliver’s first issue thus fails.   See, e.g., Kearns v. Clark,

493 A.2d 1358, 1362 (Pa. Super. 1985) (holding that the trial court acted

within its discretion in not permitting certain exhibits, i.e., “the curriculum

vitae of two defense expert witnesses, an expert witness’[s] report, and [a

physician’s] patient records of [plaintiff,]” to go out with the jury during

deliberations, where the substance of some of these exhibits was already

presented to the jury via testimony, and some of the exhibits could be

“subject to misinterpretation in the absence of explanation.”).

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J-A27037-17


         In his second issue, Oliver argues that the jury’s verdict in favor of Lee

in this case is void as a matter of law, due to Lee’s failure to join an

indispensable party to the underlying 2011 Case, i.e., Elizabeth. See Brief

for Appellant at 17-23. Oliver avers that “in actions intended to affect the

title to property which is either held or claimed by tenants by the entireties,

both spouses are indispensable parties and must be joined.”            Id. at 23.

Oliver contends that “[c]learly, Elizabeth … has an interest in the issue of

whether ‘Lee E. Claypool’ is [Lee] or [Oliver].” Id. at 19; see also Reply

Brief for Appellant at 28 (protesting that “for the [trial c]ourt to rule to the

effect that [Elizabeth] has no interest, without her ever having a chance to

be heard, would violate her rights to due process of law.”). Therefore, Oliver

maintains, the entry of summary judgment for Lee in the 2011 Case is not a

valid determination in favor of Lee, and Lee thus could not prevail in a

subsequent action for improper use of civil proceedings. Brief for Appellant

at 17.

         The trial court addressed this claim in its Opinion, and set forth the

applicable law, as follows:

         To succeed on a claim for Wrongful Use of Civil Proceedings, the
         [p]laintiff must establish that the proceedings he contends were
         wrongfully initiated were “terminated in favor of the person
         against whom they [were) brought.” 42 Pa.C.S.A. § 8351(a)(2).
         Here, [Oliver] claims that the court’s grant of summary
         judgment in favor of [Lee] in the 2011 Case was void for want of
         jurisdiction; therefore, the 2011 Case was not validly terminated
         in [Lee’s] favor.      [Oliver] claims that [Elizabeth] was an
         indispensable party to the 2011 Case. In the first of several
         [A]mended [C]omplaints in the 2011 Case, [Oliver] joined

                                        -5-
J-A27037-17


     [Elizabeth] as a defendant. However, in response to
     [P]reliminary [O]bjections by [Lee], [Oliver] voluntarily removed
     [Elizabeth] as a party in his subsequent [A]mended [C]omplaint.

            Failure to join an indispensable party “implicates the trial
     court’s subject matter jurisdiction,” Orman v. Mortgage I.T.,
     118 A.3d 403, 406 (Pa. Super. 2015), and a judgment may be
     collaterally attacked in any case and in any court for want of
     subject matter jurisdiction, Barnes v. McKellar, 644 A.2d 770,
     773 (Pa. Super. 1994). “[A] party is indispensable when his or
     her rights are so connected with the claims of the litigants that
     no decree can be made without impairing those rights. If no
     redress is sought against a party, and its rights would not be
     prejudiced by any decision in the case, it is not indispensable
     with respect to the litigation.”     Orman, 118 A.3d at 406
     (internal quotations omitted). Here, [Elizabeth] was not an
     indispensable party to the 2011 Case. The deed contested in the
     2011 Case was signed in 1980[,] and conveyed [P]roperty from
     [Oliver] and [Elizabeth], as grantors, to “Lee E. Claypool,” as
     grantee. [Oliver] and [Elizabeth] were legally divorced in 1981.
     The factual issue in the 2011 Case thus revolved around whether
     “Lee E. Claypool” was [Lee] or [Oliver]. By virtue of both the
     deed and the[] divorce shortly after the 1980 conveyance,
     [Elizabeth] had no remaining rights to the contested [P]roperty.
     Since [Elizabeth] had no rights that could have been impaired by
     the 2011 Case, she cannot be considered an indispensable party.

            As a matter of law, the 2011 Case terminated in favor of
     [Lee] through the January 14, 2013 [O]rder granting summary
     judgment to [Lee].        This [O]rder was a final judgment
     adjudicating all issues raised in the Complaint. “[E]ntry of
     summary judgment does not constitute a ‘favorable termination’
     as understood in the context of a wrongful use of civil
     proceedings suit until the summary judgment is final, meaning
     that it has been upheld by the highest appellate court having
     jurisdiction over the case or that the summary judgment has not
     been appealed.” D’Ella v. Folino, 933 A.2d 117, 122 (Pa.
     Super. 2007). For the 2011 Case, the time for filing an appeal of
     the court’s summary judgment [O]rder has long since passed,
     and [Oliver] did not appeal that [O]rder. Therefore, it was
     properly considered a final order for the purposes of the
     Dragonetti Act, and [Oliver’s] second claim of error is meritless.




                                    -6-
J-A27037-17


Trial Court Opinion, 5/18/17, at 2-4.            The trial court’s sound analysis is

supported by the law and the record, and we agree with its legal

determination. We therefore affirm on this basis in rejecting Oliver’s second

issue. See id.

        Finally, to the extent that Oliver presents issues in his brief that he did

not raise in the trial court, or preserve in his court-ordered Concise

Statement,3 these issues are waived. See Pa.R.A.P. 302(a) (stating that a

claim    cannot    be    raised    for   the   first   time   on   appeal);   Pa.R.A.P.

1925(b)(4)(vii) (stating that issues not included in a court-ordered concise

statement are waived).

        Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/12/2017



____________________________________________


3
  See, e.g., Brief for Appellant at 19-20 (asserting that the deed to the
Property was invalid because the signatures were not witnessed), 21
(complaining that “[t]he January 14, 2013 Order granting summary
judgment did not consider all of the issues raised in the 2011 Complaint, and
it makes no mention of a ruling on [Oliver’s] New Matter and
Counterclaim[.] Thus, the … Order was interlocutory ….”).



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