J-S58002-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALTON D. BROWN,                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

LARRY KRAMER,

                            Appellee                 No. 1966 MDA 2014


                 Appeal from the Order Entered October 6, 2014
              in the Court of Common Pleas of Huntingdon County
                        Civil Division at No.: 2013-01594


BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                        FILED NOVEMBER 25, 2015

        Appellant, Alton D. Brown, appeals pro se from the order sustaining

preliminary objections to his amended complaint against Appellee Larry

Kramer.1 We affirm on the basis of the trial court opinion.

        This is a highly convoluted lawsuit, compounded by Appellant’s endless

stream of ultimately superfluous motions, and a near constant shift in claims

and arguments. The brief is meandering, unfocused and substantially non-

compliant. Nevertheless, it is apparent that Appellant’s underlying claim, a

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
   The trial court also entered orders denying Appellant’s motion for
sanctions, and denying a motion to compel discovery. Appellant has not
raised these additional issues in this appeal. Therefore, we deem them
abandoned.
J-S58002-15


breach of contract claim against the then-publisher of USA Today,

personally, is utterly frivolous.

       In its opinion, the trial court fully and correctly sets forth the relevant

facts and procedural history of this case. Therefore, we have no reason to

restate them at length here.

       For the convenience of the reader, we note that Appellant, currently an

inmate at S.C.I. Smithfield, and an admitted pro se filer of similar

complaints for eighteen years, chiefly claims a breach of contract, and

breach of warranty, personally, by Larry Kramer, formerly the editor and

publisher of the newspaper USA Today.2 Appellant complains that after his

subscription began, USA Today stopped publishing Las Vegas odds and other

related data on sporting events. Appellant claims he needs this information

to run his book-making operation in prison.         (See Appellant’s Amended

Complaint, 5/21/14, at 2, ¶ 12).




____________________________________________


2
  We take judicial notice that Appellee Larry Kramer, formerly publisher and
president of USA Today, resigned effective June 29, 2015, from the
newspaper and joined the board of directors of the new Gannett, in a
corporate restructuring by which Gannett, the new publishing company,
began trading as a separate company. See usatoday.com, June 8, 2015.




                                           -2-
J-S58002-15


       After a hearing, the trial court sustained Appellee’s preliminary

objections    to   the   amended       complaint,   and   denied   the   motion   for

reconsideration. This timely appeal followed.3

       Appellant raises three questions for our review on appeal:

             I. Whether trial court erred as a matter of law or abused
       [its] discretion by sustaining preliminary objections, including
       the motion for reconsideration of same?

             II. Whether trial court erred in [its] holding and actions
       surrounding prison staff refusal to allow Appellant access to his
       case files during hearing on preliminary objections?

            III. Whether trial court’s claim that appeal is untimely is
       supported by evidence?

(Appellant’s Brief, at 1).

             In reviewing a trial court’s grant of preliminary objections,
       the standard of review is de novo and the scope of review is
       plenary. The salient facts are derived solely from the complaint
       and pursuant to that standard of review, the court accepts all
       well-pleaded material facts in the complaint, and all inferences
       reasonably deduced therefrom must be accepted as true.

Martin v. Rite Aid of Pennsylvania, Inc., 80 A.3d 813, 814 (Pa. Super.

2013) (citations omitted).

       After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the trial court we conclude

that there is no merit to the issues Appellant has raised on appeal. The trial
____________________________________________


3
 We give Appellant the benefit of the doubt that his appeal was timely filed,
pursuant to the Prisoner Mailbox Rule. See Thomas v. Elash, 781 A.2d
170, 178 (Pa. Super. 2001) (holding that prisoner mailbox rule applies to all
pro se filings by incarcerated litigants).



                                           -3-
J-S58002-15


court opinion properly disposes of the questions presented. (See Trial Court

Opinion, 1/05/15, at 1-3) (concluding that Appellant (1) failed to establish in

his amended complaint that he had contracted personally with Appellee

Kramer; and (2) failed to allege averments of fraud with particularity).4

       Additionally, we conclude that Appellant failed to raise and preserve,

or properly develop, his claim that the trial court could or should interfere

with the Department of Corrections based on his (Appellant’s) bald assertion

that prison staff interfered with his access to case files.

       Finally, we note that we have given Appellant the benefit of the doubt

on the timeless of his notice of appeal, based on evidence of his apparent

timely mailing pursuant to the Prisoner Mailbox Rule. (See supra at 3 n.3;

see also Thomas v. Elash, supra at 178).            Therefore, Appellant’s third

claim is moot.




____________________________________________


4
   Moreover, for the sake of clarity and completeness, we conclude on
independent review that, in addition to a veritable cornucopia of procedural
and technical defects, there is no merit to Appellant’s overarching claim.
Appellant not only fails to show that he contracted directly with Appellee
Kramer for a subscription to USA Today; he offers no pertinent argument or
supporting evidence in the record for his claims. Furthermore, he fails to
develop a legal argument that a subscriber to a publication has any
contractual right or claim to specific editorial content, much less a warranty,
express or implied, that the publisher will maintain specific editorial content
for the length of any individual subscription. We observe that Appellant cites
to caselaw for general principles only. None are pertinent to his specific
claims.



                                           -4-
J-S58002-15


       Order affirmed. 5



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




____________________________________________


5
  We direct the Prothonotary to forward a copy of this memorandum to the
Superintendent at SCI Smithfield for appropriate review of Appellant’s self-
confessed operation of a facially illegal gambling business in prison.




                                           -5-
                                                                                                                       Circulated 10/29/2015 04:56 PM




                                ALTON      D. BROWN~·                        : IN'THE       COURT OF COMMON PLEAS
                                                         Plaintiff           : OF HUNTINGDON
                                                                                   .   ·.    . COUNTY,
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                                         vs.                                 : PENNSYLVANIA,
                                                                             : CIVIL DIVISION
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                                        -Plaintiff has appealed fromourOctober 6, 2014 Orders-granting
                                , Preliminary Objections, denying a Motion for Sanctions and denying a Motion to
                                Compel Dlscoverv.! We write to fulfil our duties pursuant to Pa.R.A.P. No. 1925(a).
                                Plaintiff's Amended Complaint alleges that Plaintiff is an inmate at the State
                                Correctional Institution at Smithfield and 'Defendant, Larry Kramer, is the
                                president and publisher of. the  ·of the "USA
                                                              . . .         .
                                                                              Today
                                                                                .   newspaper."
                                                                                       .'   .


                                         Plaintiff commenced this action by Com pl a int filed on December 12, 2013.
                                An Amended Complaint was subsequently filed on May 21, 2014, and Defendant
                                filed. Preliminary Objections on·July 18, 2014. The Amended Complaint raises .
                                counts of Breach of Contract (Co.u nt I), Breach of Warranty (Count II), a nd
                                Misrepresentation (Count Ill). We held argument on October 2, 2014 wherein
                                Plaintiff participated via video conference from the State Correctional Institution
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                                at Smithfield. By Order dated October 6, 2014, this Court sustained the
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        <'.(    .....
                ~·              Preliminary Objections to·Plaintiff's Amended Complaint. On November 18, 2014,
B~ fJ.w~ ~O                     Plaintiff filed an untimely Notice of Appeal from our October: 6·, 2014 Orders. 2 We
                                                                  ,
 ~gg .~ ~                       would also note that the caption of Plaintiff's Amended Complaint added U.S.A.
}~~80~§ re                      Today as a Defendant, whereas in the original Complaint, Larry Kramer was the
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                            o   sole named Defendant,
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                                  ln'.his Statement of Matters Complained of on Appeal, Plaintiff failed to address any issues relating to the denial
 wl-Qo~                         of the Motion for Sanctions or the denial of the Motion to Compel Discovery. This Memorandum only addresses
 L!...1-1-WO
 o:z;~~z                        the issues raised in the Pa.R.A.P; 1925(b) statement.
 w·~.o:._o                      2
                                  The docket transcript indicates, that the appeal was filed on November 18, 2014, however, there is an indication·
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         z "1-I r.!.li'
 1-o:: r-w o 1-                 on the envelope that the Prothonotary received the Notice of Appeal on November 7, 2014. Giving Plaintiff the
 o ::i O LLi rx: <t:            benefit of the doubt, and using the November 7, .2014 receipt date, the Notice of Appeal was received 32 days
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                                after October 6, 2014 'Order.           ·
                                                                     Circulated 10/29/2015 04:56 PM




           When ruling on preliminary objections, this Court is required to "accept as
    true all well-pleaded facts and all inferences reasonably deducible therefrom."
    Dorfman v. Pennsylvania Social Servs. Union B Local 668, 752 A.2d 933, 936 (Pa.
    Cornrnw, Ct. 2000); See also Stone and Edwards Insurance Agency Inc. v.
    Department of Insurance, 151 Pa.Commw. 266, 626 A.2d 1060 (Pa. Cmwlth.
    1992). Furthermore, in orderto sustain preliminary objections, this Court must be
    certain that "the law will not permit recovery, and any doubt should be resolved
    by a refusal to sustain them."~;     See also Envirotest Partners v. Dept;1rtment of
    Transportation, 664 A.2d 208 {Pa. Cmwlth. 1995).


           We have only considered the three issues raised in Plaintiff's Statement of
    Errors Complained of on Appeal. The first issue is "whether the Court erred in
    sustaining preliminary objections." Count I of Plaintiff's Amended Complaint
    raises a breach of contract claim. Plaintiff, however, failed to attach to his
    Amended Complaint any written documentation reflecting a contract and/or
    agreement allegedly breached by Larry Kramer. Although a letter sent to Plaintiff
    (when Plaintiff was a resident of Montgomery County) is attached to the pleading,
    the letter ls not from Larry Kramer. Pa.R.C.P. No. 1019(h) requires that "when any
    claim or defense is based upon an agreement, the pleading shall state specifically
    if the agreement is ora I or written. If the agreement is in writing, it must be
    attached to the pleading." Even 'if we were to determine that the attached letter
    constituted a contract, the contract was not with Larry Kramer.


          As such, Plaintiff has failed to establish in his Amended Complaint that Larry
    Kramer personally contracted with him or that Larry Kramer acted at any time in
    an individual capacity. Plaintiff also failed to allege averments of fraud with
    particularity as is required by Pa.R.C.P .. 1019(b).


           Plaintiff secondly inquires as to "whether the court erred in holding that it
    had no authority to prevent prison staff from denying Plaintiff access to his case
files during hearing on preliminary objections." At argument on October 2, 2014,
.                     '

    Plaintiff advised the Court that he did not have his file at the time. N.T. 10/2/2014
    at 5. The Court answered, "There is nothing I can do about that." N.T. 10/2/2014 ·
                                                                   Circulated 10/29/2015 04:56 PM




at 5. The issue raised by Plaintiff has no relevance to our ruling on the Preliminary
Objections.


         Plaintiff's last issue claims the Court erred by denying his "Motion     for.
Reconsideration."    This issue is misguided as the Court never ruled on Plaintiff's
Motion as the Notice of Appea I was filed prior to a ruling being issued by the
Court.


         For the foregoing   reasons, the Orders entered   by this Court on October 6,
2014 should be affirmed.


                                         BY THE COURT,




                                            ,24 Zi~
                                          .George N. Zanic, P.J.
