J-S29033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RAYMOND JOSEPH SMOLSKY                     :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    DAWN E. GALE                               :   No. 2872 EDA 2016

                 Appeal from the Order Entered August 12, 2016
                 In the Court of Common Pleas of Bucks County
                       Civil Division at No(s): 2013-05846


BEFORE:      LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                             FILED MAY 26, 2017

        Raymond Joseph Smolsky (“Appellant”), appeals from the order

entered by the Court of Common Pleas of Bucks County granting Dawn

Gale’s (“Appellee”) motion for summary judgment and dismissing Appellant’s

civil complaint. We affirm.

        The trial court aptly summarizes the procedural and factual history of

the case as follows:

        On July 31, 2013, Appellant filed a Complaint against Appellee
        for violating Appellant’s “inherent rights of mankind” under
        Article I, Section 1 of the Pennsylvania Constitution[,] . . . for
        actions arising out of the care of Appellant’s now-deceased
        father, who suffered from dementia. Complaint 07/31/13, ¶¶ 1[,
        9-12, 14,] 19; Defendant’s Motion for Summary Judgment, ¶ 8.
        Though no oral testimony occurred, Appellant averred the
        following in his Complaint and his Answer to Appellee’s New
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S29033-17


     matter: (1) while Appellant cared for Appellant’s father, she
     screened his calls out of jealousy of their father-son relationship;
     (2) Appellee refused to allow a neighbor, with Appellant’s Power
     fo Attorney, into Appellant’s father’s home; (3) Appellee
     instructed the hospice nurses to not answer calls from the
     Appellant’ (4) Appellee treated Appellant’s father poorly out of
     spite; (5) Appellee ignored Appellant’s phone calls because
     Appellee was engaging in an extramarital affair with one of the
     hospice nurses in the home; and (6) Appellee fraudulently
     claimed Appellant has been calling her residence, not Appellant’s
     father’s residence. Complaint 7/13/13, ¶¶ 9-12, 14-18.

     Appellee averred that due to the Appellants’ now deceased
     father’s dementia, speaking with his son on the telephone upset
     him because he did not understand [with] who[m] he was
     speaking []. Defendant’s Motion for Summary Judgment, ¶ 8;
     Defendant’s Answer to Plaintiff’s Complaint Together with New
     Matter 2/7/14, ¶ 12-13. Appellee averred Appellant has not
     resided in the home he claims as his domicile, in the twenty-five
     (25) years due to incarceration.1       Defendant’s Answer to
     Plaintiff’s Complaint Together with New Matter. 2/7/14, ¶ 6.

     1
       Appellant was sentenced to a twenty-two-and-a-half (22.5) to
     forty-five (45) year sentence for corruption of minors,
     involuntary deviate sexual intercourse and rape.


     ***
     To provide more context of what [Plaintiff/]Appellant is actually
     claiming, [the trial court] includes the “Summary of Claims”
     outlined by Appellee in his Complaint:

           The Plaintiff avers that the Plaintiff’s most-cherished
           inherent rights of mankind Article I. [sic] Section 1.
           [sic] By the Constitutioan of the Commonwatlh of
           Pennsylvania, is [sic] being [sic] violated and
           Plaintiff’s most-cherished of [sic] loving rights of his
           Father-Son sharing of [sic] their enjoyments of
           natural senior-years of life and happiness together,
           is [sic] wantonly and recklessly purposefully being
           interfered with by the Defendant in order to deprive
           the Plaintiff these human rights and cause ot the
           Plaintiff extreme anxieties, harms, annoyance,
           harassment and alarm, by the Defendant’s fraud,

                                    -2-
J-S29033-17


            envy, lust and greed, through, among other things,
            hatred of this relationship, to sabotage it and to
            come between Father and Son’s last-years [sic]
            together on earth [sic] for Defendant’s personal
            greater freedoms and gain, without legal authority to
            do so, to deprive to [sic] the Plaintiff these all
            important and most-cherished human immediate
            [sic] family and other rights by committing these
            acts complained about herein, as pled, that warrant
            relief.

      ***
      On August 28, 2013, the [trial court] approved Appellant’s in
      forma pauperis application.    The Sheriff’s Office received a
      request for service from Appellant on January 8, 2014, and
      served Appellee on January 13, 2014. On February 7, 2014,
      Appellee filed an Answer to Appellant’s Complaint along with a
      New Matter. Appellant filed an answer to Appellee’s New Matter
      on March 13, 2014. Appellee moved for a Judgment on the
      Pleadings on May 6, 2014.

      On May 27, 2014, Appellant filed an Answer to Appellee’s
      Judgment on the Pleadings in conjunction with a Motion for
      Summary Judgment. Appellee answered Appellant’s Motion for
      Summary Judgment on June 26, 2016, and Appellant praecipied
      the issue.     [The trial court] denied Appellant’s Motion for
      Summary Judgment on May 27, 2015. Appellee then filed a
      Motion for Summary Judgment on February 23, 2016, which the
      Court granted on August 16, 2016, after it was praecipied.
      Appellant filed a Notice of Appeal to Superior Court on November
      9, 2016.

Trial Court Opinion, filed 11/14/16, at 1-2.

      In Appellant’s court-ordered Pa.R.A.P. 1925(b) concise statement of

errors complained of on appeal, he made the following assertions:

      1. The lower court deprived to the Plaintiff due process under
         law and access to the court by mischaracterizing the
         Complaint facts. Secured under Article I, [sic] Section II [sic]
         Courts to be Open [sic] to hear all claims under the
         Pennsylvania Constitution.     Where “the record” explicitly
         reflects genuine issues of material fact in dispute.

                                     -3-
J-S29033-17


      2. Thereby abusing it’s [sic] discretion, erring as a matter of
         law, showed bias or ill-will with prejudice towards the Plaintiff,
         while showing favoritism to the Defendant, and granting
         summary judgement [sic] to the Defendant in conflict with
         the Complaint [sic] well pled record facts that also sought
         “liberal construction” as a pro se litigant besides monetary
         relief.

Appellant’s Pa.R.A.P. 1925(b) statement, 10/20/16.       In response, the trial

court authored a Rule 1925(a) opinion in which it denies mischaracterizing

the Complaint facts and rejects the Complaint’s assertion that Article I, § 1

of the Pennsylvania Constitution supports a cause of action against private

individuals. Trial Court Opinion, at 6. In the alternative, the court indicated

it would deny Appellant’s claim because “money damages are inappropriate

for violations of the Pennsylvania Constitution such as this.”        Id. (citing

Jones v. City of Philadelphia, 890 A.2d 1188, 1208 (Pa. Commw. 2006).

      Our standard of review of an order granting a motion for summary

judgment is well-settled:

      We view the record in the light most favorable to the non-
      moving party, and all doubts as to the existence of a genuine
      issue of material fact must be resolved against the moving party.
      Only where there is no genuine issue as to any material fact and
      it is clear that the moving party is entitled to a judgment as a
      matter of law will summary judgment be entered. Our scope of
      review of a trial court's order granting or denying summary
      judgment is plenary, and our standard of review is clear: the
      trial court's order will be reversed only where it is established
      that the court committed an error of law or abused its discretion.

Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation

omitted).




                                      -4-
J-S29033-17



      In Appellant’s pro se brief, he maintains that the court erroneously

granted summary judgment based on its mischaracterization of the facts

pled and apparent misapprehension of the causes of action maintained in his

complaint. Our review of his complaint, however, belies his charge, as the

complaint invokes the court’s jurisdiction over matters involving “inherent

rights of mankind under Section 1 of the Constitution of the Commonwealth

of Pennsylvania[,]” and it states one claim, under its section entitled

“Summary of Claims,” asserting that Appellee violated Appellant’s “most-

cherished inherent rights of mankind Article I. Section 1. by the Constitution

of the Commonweatlh of Pennsylvania[.]”         Appellants’ Complaint at 1, 5.

We, therefore, reject the predicate to Appellant’s assertion on appeal.

      In that vein, after careful review of the record, party briefs, and the

trial court’s Rule 1925(a) opinion, we discern no error with the trial courts’

reliance on decisional law recognizing no cause of action for money damages

under Article I, § 1 of the Pennsylvania Constitution. Accordingly, we adopt

the rationale of the trial court in deciding this matter.

     Order affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/26/2017



                                      -5-
                                                                                   Circulated 05/15/2017 10:41 AM




    IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
                                    CIVIL ACTION-LAW


 RAYMOND JOSEPHSMOLSKY                                 No. 2013-05846




 DAWNE.GALE
               v.
                                                                      1 1 ~~~il~illl 1 1
                                                                        Case#: 2013-05846 809

                                                                        Code: 5214          Judge:34
                                                                                                     11447584


                                                                        Patricia L. Bachtle, Bucks County Prothonotary
                                                                        Rcpt: 21645798 11114/2016 8:15:19 AM



                                        OPINION
                                                                                         _,
       Plaintiff Raymond Joseph Smolsky (hereinafter "Appellant") appeals this Court' s·August

16, 2016, Order granting Dawn E. Gale's (hereinafter"Appellee") Motion for Summary Judgment.

We file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).

                                PROCEDURAL HISTORY

       On July 31, 2013, Appellant filed a Complaint against Appellee for violating Appellant's

"inherent rights of mankind" under Article I, Section I of the Pennsylvania Constitution.

Complaint 07/31/13, 11, 19. On August 28, 2013, the Court approved Appellant's in forma

pauperis application. The Sherriff's Office received a request for service from Appellant on

January 8, 2014, and served Appellee on January 13, 2014. On February 7, 2014, Appellee filed

an Answer to Appellant's Complaint along with a New Matter. Appellant filed an answer to

Appellee's New Matter on March 13, 2014. Appellee moved for a Judgment on the Pleadings on

May 6, 2014.

       On May 27, 2014, Appellant filed an Answer to Appellee's Judgment on the Pleadings in

conjunction with a Motion for Summary Judgment. Appellee Answered Appellant's Motion for

Summary Judgment on June 26, 2016, and Appellant paecipie'd the issue. This Court denied

Appellant's Motion for Summary Judgment on May 27, 2015. Appellee then filed a Motion for
Summary Judgment on February 23, 2016, which the Court granted on August 16, 2016, after it

was praecipie'd. Appellant filed a Notice to Appeal to Superior Court on November 9, 2016.

                                                  BACKGROUND

           Appellant sued Appellee, his niece, for actions arising out of the care of Appellant's now-

deceased father, who suffered from dementia. Complaint 7/31/13, ~1, 9-12, 14; Defendant's

Motion for Summary Judgment,~ 8. Though no oral testimony occurred, Appellant averred the

following in his Complaint and his Answer to Appellee's New Matter: (1) while Appellee cared

for Appellant's father, she screened his calls out of jealousy of their father-son relationship; (2)

Appellee refused to allow a neighbor, with Appellant's Power of Attorney, into Appellant's

father's home; (3) Appellee instructed the hospice nurses to not answer calls from the Appellant;

( 4) Appellee treated Appellant's father poorly out of spite; (5) Appellee ignored Appellant's phone

calls because Appellee was engaging in an extramarital affair with one of the hospice nurses in the

home; and (6) Appellee fraudulently claimed Appellant has been calling her residence, not

Appellant's father's residence. Complaint 7/31/13, ~ 9-12, 14-18.

           Appellee averred that due the Appellant's now deceased father's dementia, speaking with

his son on the telephone upset him because he did not understand who he was speaking with.

Defendant's Motion for Summary Judgment, ~ 8; Defendant's Answer to Plaintiff's Complaint

Together with New Matter 2/7/14, ~ 12-13. Appellee averred Appellant has not resided in the home

he claims as his domicile, in the twenty-five (25) years due to incarceration.1 Defendant's Answer

to Plaintiff's Complaint Together with New Matter 2/7/14, 9i[ 6.

                   STATEMENT OF MATTERS COMPLAINED OF ON APPEAL




1
    Appellant was sentenced to a twenty-two-and-a-half (22.5) to forty-five ( 45) year sentence for corruption of
minors, involuntary deviate sexual intercourse and rape.

                                                            2
       On October 4, 2016, this Court issued a 1925(b) Order directing Appellant to file a Concise

Statement of Errors within twenty-one (21) days. Appellant submitted his timely Statement of

Errors on October 20, 2016, which raised the following issues, verbatim:

       1. The lower Court deprived to the Plaintiff due process under law and access to the court
          by mischaracterizing the Complaint facts. Secured under Article I. [sic] Section 11.
          [sic] Courts to be Open [sic] to hear all claims under the Pennsylvania Constitution.
          Where "the record" explicitly reflects genuine issues of material fact in dispute.
       2. Thereby abusing it's discretion, erring as a matter of law, showed bias or ill-will with
          prejudice towards the Plaintiff, while showing favoritism to the Defendant, and
          granting summary judgement [sic] to the Defendant in conflict with the Complaint [sic]
          well pled record facts that also sought "liberal construction" as a pro se litigant besides
          monetary relief.

To provide more context of what Appellant is actually claiming, we also include the "Summary of

Claims" outlined by Appellee in his Complaint:

       The Plaintiff avers that the Plaintiffs most-cherished inherent rights of mankind
       Article I. [sic] Section 1. [sic] By the Constitution of the Commonwealth of
       Pennsylvania, is [sic] being [sic] violated and Plaintiff's most-cherished of [sic]
       loving rights of Father-Son sharing of [sic] their enjoyments of natural senior-years
       of life and happiness together, is [sic] wantonly and recklessly purposefully being
       interfered with by the Defendant in order to deprive the Plaintiff these human rights
       and cause to the Plaintiff extreme anxieties, harms, annoyance, harassment and
       alarm, by the Defendant's fraud, envy, lust and greed, through, among other things,
       hatred of this relationship, to sabotage it and to come between Father and Son's
       last-years [sic] together on earth [sic] for Defendant's personal greater freedoms
       and gain, without legal authority to do so, to deprive to [sic] the Plaintiff these all
       important and most-cherished human immediate [sic] family and other rights by
       committing these acts complained about herein, as pled, that warrant relief.

                                           ANALYSIS

       As a threshold matter, we note merely filing "a timely Pa.R.A.P. 1925(b) statement does

not automatically equate with issue preservation." Tucker. v. R.M. Tours, 939 A.2d 343, 346

(Pa.Super. 2007). The Superior Court made clear that "Pa.R.A.P. 1925(b) is not satisfied by simply

filing any statement. Rather, the statement must be 'concise' and coherent as to permit the trial

court to understand the specific issues being raised on appeal." Id.; see also Pa.R.A.P.



                                                 3
1925(b )( 4 )(ii) ("The Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for the judge").

       Appellant's Complaint and Statement of Errors Complained of on Appeal do not

coherently state a concise claim for the court. In an attempt to tease out the issues, it appears

Appellant is appealing this Court's ruling granting Appellee's motion for summary judgment by

stating a portion of the legal standard on appeal in his 1925(b) filing. Appellant's Complaint

purportedly arises from Article I, § 1 of the Pennsylvania Constitution, as such, we begin by

discussing the construction of Article I, § 1, then addressing the standard of review on a summary

judgment appeal.

        The Pennsylvania Constitution empowers the "Legislature to enact all laws which are not

forbidden by its letter or spirit" meaning all powers reside in the state but for those denied to it.

Commonwealth v. Wormser, 103 A. 500, 501 (Pa. 1918). A basic function of the American system

of government is that the power rests in its people and that maxim is present in Article I - "Article

I does not restrain the power of the people, it retrains the government structure that the people have

created." Gondelman v. Commonwealth, 554 A.2d 896, 904-05 (Pa. 1989).                   In addition to

protecting individuals from the government, Article I of the Pennsylvania Constitution specifically

lists the powers denied to the state. Pa. Const. art. I, § 25; see generally Pa. Const. art. I, § 1-24.

       Article I § 1 of the Pennsylvania Constitution is as follows:

       § 1. Inherent rights of mankind
               All men are born equally free and independent, and have certain inherent
       and indefeasible rights, amongd with are those of enjoying and defending life and
       liberty, of acquiring, possessing and protecting property and reputation, and of
       pursuing their own happiness.

Pa. Const. art. I, § 1. The language of this Section protects a citizen's right to the enjoyment of

private property whilst thwarting any governmental interference as circumscribed by the Fifth and



                                                   4
Fourteenth Amendments to the United States Constitution.      Township of Exeter v. Zoning Board

of Exeter Township,      962 A.2d 653 (Pa. 2009).      A basic tenant of our state constitutional

jurisprudence "is that the provisions of Article I of the Pennsylvania Constitution are intended to

govern only the actions of the state government." Dillon v. Homeowner's Select, 957 A.2d 772,

776 (Pa. Super. 2008).

       Under the Pennsylvania     Rules of Civil Procedure 1035.2, summary judgment may be

rendered as a matter of law:

       (1) whenever there is no genuine issue of material fact as to a necessary element of
       the cause of action or defense which could be established by additional discovery
       or expert report; or

       (2) if after the completion of discovery relevant to the motion ... an adverse party
       who will bear the burden of proof at trial has failed to produce evidence of facts
       essential to the cause of action or defense which in a jury trial would require the
       issues to be submitted to a jury.

Summary judgment is appropriate when the moving party establishes that the case is free and clear

of doubt, that there are no genuine issues of material fact and the moving party is entitled to relief

as a matter oflaw. Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010). The burden is on the

moving party but it has long been recognized that summary judgment should be granted to the

movant unless the opposing party offers competent evidence, which would be admissible at trial,

showing that there is genuine issue as to a material fact which would warrant submitting the case

to the trier of fact. Community Medical Services of Clearfield, Inc. v. Local 2665, 437 A.2d 23,

27 (Pa. Super. 1981); see also Godlewski v. Pars Manufacturing Co., 597 A.2d 106 (Pa. Super.

1991) (moving defendant "may point to materials indicating that the plaintiff is unable to satisfy

an element of his cause of action"); Roland v. Kravco, Inc., 513 A.2d 1029, 1033 (Pa. Super. 1986)

(quoting Tom Morello Construction v. Bridgeport Federal Savings and Loan Association, 421

A.2d 747, 750 (Pa. Super. 1980)) (holding the non-moving party must show a genuine issue of


                                                  5
material fact exists through evidence of specific facts). The             nction of the court is to examine the

record in the light most favorable to the non-moving party a d accept as true all well-pleaded facts

in the pleadings together with all reasonable inferences there from favoring the non-moving party.

Ryan v. Asbestos Corp. Ltd., 829 A.2d 686 (Pa. Super. 200 ).

         The scope of review of an order granting or den ing summary judgment is plenary.

Universal Teleservices Arizona LLC v. Zurich American I s. Co., 879 A.2d 230, 232 (Pa. Super.

2005). The well-established standard of review demonstrat s that "the trial court's order will be

reversed only where it is established that the court com                  itted an error of law or abused its

discretion." Universal Health Services, Inc. v. PIGA, 884                .2d 889, 892 (Pa. Super. 2005). "An

abuse of discretion exists when the trial court has rend red a judgment that is manifestly

unreasonable, arbitrary, or capricious, has failed to apply thllaw, or was motivated by partiality,

prejudice, bias, or ill will." Chane        v. Meadville Medical C nter, 912 A.2d 300, 306 (Pa. Super.

2006); citing Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2 00).

         Appellant sued his niece under the Pennsylvania Con titution asserting her actions violated

the inherent rights of mankind. Article I, § 1 of the Pennsyl ania Constitution does not permit a

private cause of action against private individuals. Logically, no facts can be at issue, nor material,

if no cause of action exists. Therefore, in viewing the facts              ost favorably to the Appellant, this

claim fails as a matter of law and the Court was obligated to g ant Appellee' s Motion for Summary

Judgment.

         Even if, arguendo, Appellant had a legally actionab e claim under Article I, § 1 against

Appellee, money damages are inappropriate for violations of the Pennsylvania Constitution such

as this.2 Cf. Jones v. City of Philadelphia, 890 A.2dl 188,              bas (Pa. Commw.           2006); see also


2
 Appellant asserts a claim of damages greater than $50,000, equitable, a d injunctive relief. Complaint 7 /31/13, p.
6:3-7: 1. However, since Appellant's father has died, the requests for equi able and injunctive relief are moot.

                                                          6
Hillgartner v. Port Authority of Allegheny County, 936 A.2            131, 141 (Pa. Cornrow. 2007). The

Pennsylvania    Supreme Court has not recognized a private c use of action for damages under Art.

I, § 1 of the Pennsylvania Constitution and generally does n t recognize a cause of action against

individuals under any constitutional provision. Douris v. S hweiker, 229 F. Supp. 2d 391, 405

(E.D. Pa. 2002) aff'd sub nom. Douris v. Rendell, 100 F. A p'x 126 (3d Cir. 2004); see Ryan v.

Gen. Mach. Prod., 277 F. Supp. 2d 585, 595 (E.D. Pa. 2003); see also Dooley v. City of

Philadelphia, 153 F.Supp.2d 628, 663 (E.D. Pa. 2001); but c E.E.O.C. v. Fed. Express Corp., 537

F. Supp. 2d 700, 718 (M.D. Pa. 2005) (allowing a private ause of action for damages but only

under the Equal Rights Amendment to the Pennsylvania Co stitution).

        Appellant also claims in his Statement of Errors Co plained of on Appeal, that this Court

"mischaracteriz[ed] the Complaint facts ... [showed] bias rill-will with prejudice towards the

Plaintiff, while showing favoritism to the [Appellee] ... " hese claims are inaccurate, baseless,

and irrelevant to the dispositive legal flaw in Appellant's clam (no private cause of actions exists

against another private individual through Article I, § 1 o the Pennsylvania Constitution). As

evidence of the inaccurate and baseless nature of Appellan 's claims, at no point did this Court

characterize any facts of the case. As the docket clearly i dicates, only four orders have been

entered by the Court, none of which included factual charact rizations.3

        Appellant's claim failed as a matter of law and th remedy sought was inappropriate,

therefore, this Court was obligated to grant Appellee's Moti n for Summary Judgment.




3
 The Orders entered by the Court include the following: (I) 8/28/13 Ord r Approving Appellant's in Propria
Persona Application; (2) 5/27/15 Order Denying Appellant's Motion for ummary Judgment; (3) 8/16/16 Order
Granting Appellee's Motion for Summary Judgment; (4) 10/4/16 Order t file a 1925(b) Concise Statement of
Errors Complaint of on Appeal.

                                                      7
                                         CONCLUSION

        For the foregoing reasons, this Court perceives that ppellee presents no genuine issue of

 material fact, and therefore this Court's August 16, 2016,   rder granting Appellee's Motion for

 Summary Judgment should be affirmed. We respectfully re      est the Superior Court to affirm this

 Court's decision.




~~q                  UY~
 Date




                                                8
Copies to:


David A. Baun,
Baun & Litt
4 West Oakland Ave.
Doylestown, PA 18901
Attorney for Appellee

Raymond Joseph Smolsky
SCI Mahanoy, BM-2892
301 Morea Road
Frackville, PA 17932
pro se Appellant




                         9
