J-A11008-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    ANITA LUI                                  :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STANLEY J. ZUKOS JR.                       :
                                               :
                       Appellant               :    No. 1233 MDA 2019

                   Appeal from the Order Dated June 26, 2019
                In the Court of Common Pleas of Luzerne County
                       Civil Division at No(s): 2018-5451


BEFORE:      PANELLA, P.J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, P.J.:                       FILED: MAY 27, 2020

        Stanley J. Zukos, Jr., appeals from the order entered June 26, 2019, in

the Luzerne County Court of Common Pleas, granting summary judgment in

favor of Anna Lui in an underlying possession/ejectment action. On appeal,

Zukos contends the trial court erred in dismissing his motion to enforce

settlement at the time when the pleadings were completed because the matter

was ripe for a determination. See Appellant’s Brief, at 3. Based on the

following, we affirm.

        The trial court set forth the facts and procedural history as follows:

        [Lui]’s complaint filed on May 18, 2018 alleges an action for
        possession/ejectment and an action for past due rent/unjust
        detention. The complaint further alleges that [Lui] purchased a
        residence with the address 6 Wheatfield Lane, Mountain Top,
        Pennsylvania at the Luzerne County Sheriff Sale on February 28,
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*   Former Justice specially assigned to the Superior Court.
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       2018. The deed is recorded in the Luzerne County Deed Book
       3018, Page 38219. [Zukos] was the owner of the property prior
       to sheriff sale and occupies the property. [Zukos] refused to
       vacate the premises. The complaint further alleged that [Zukos]
       did not pay money or adequate consideration for his occupation
       of the premises from February 28, 2018 to the present.

              Procedurally, judgment for possession was found in favor of
       [Lui] on May 2, 2018 and a monetary award in the amount of one
       thousand six hundred sixty-eight dollars and fifteen cents
       ($1668.15) was awarded to [Lui] before the magistrate court. On
       May 11, 2018, [Zukos] appealed the judgment in the Luzerne
       County Court of Common Pleas. Upon filing the appeal, [Zukos]
       on May 11, 2018 began paying one thousand five hundred
       seventy-nine dollars ($1579.00) into escrow. On June 13, 2018,
       [Lui] filed a praecipe to strike the supersedeas effect from
       [Zukos’s] appeal. On June 17, 2018, an answer and new matter
       to the complaint was filed by [Zukos].[1] On June 25, 2018,
       [Zukos] filed a motion to reinstate supersedeas and to stay
       removal from property.

             On June 25, 2018, the Honorable Fred A. Pierantoni, III,
       Luzerne County Court of Common Pleas Court, granted [Zukos’s]
       motion to reinstate supersedeas permitting [Zukos] to remain in
       the property provided that [he] pay one thousand five hundred
       seventy-nine dollars ($1579.00) into escrow each month until
____________________________________________


1 In his answer, in pertinent part, Zukos averred that he offered, through
counsel, to make a payment on a monthly basis of the rental amount, but Lui
refused to accept, and that he placed funds in an escrow account, which was
identified by the magisterial district judge as the amount being in arrears for
rent. See Answer and New Matter, 6/17/2018, at ¶¶ 7-9, 19. In his new
matter, he pled the affirmative defenses of consent, justification, accord and
satisfaction, illegality, estoppel, and failure of consideration. See id., ¶¶ 19-
24. Notably, Zukos did not assert a counterclaim for breach of contract against
Lui, and the new matter does not allege a breach of contract claim.

      On June 25, 2018, Lui filed an answer to Zukos’s new matter, alleging
she was a bona fide purchaser of the property at issue and holds clean title to
the premises. See Plaintiff’s Answer to Defendant’s New Matter, 6/25/2018,
at ¶¶ 25-26. While Lui admitted she rejected his offer to lease the property,
she asserted that no contract was established nor was any agreement
reached. See id., at ¶ 28.

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       final disposition of the matter. The court further stayed the
       eviction proceedings.

               On June 26, 2018, [Zukos] filed a motion to enforce
       settlement agreement and brief in support of same. [In his
       motion, Zukos alleged: (1) that on March 16, 2018, he was
       provided with notice that Lui wanted to discuss the home with
       him; (2) two days later, Zukos and his counsel contacted Lui and
       he confirmed he would purchase the legal title back from the
       home; (3) Lui confirmed she would sell it back if Zukos paid the
       full amount due, which is what she paid ($130,000.00) plus all
       expenses incurred and all expenses that would be due to reconvey
       title; (4) Zukos agreed to the same and the parties confirmed that
       he would arrange for financing; and (5) Lui refused to honor the
       contract and settlement and filed the instant action. See Motion
       to Enforce Settlement Agreement, 6/26/2018, at ¶¶ 6-12. Zukos
       argued oral settlement agreements are enforceable in
       Pennsylvania, and he was prepared to make payment to Lui. See
       id., at 18-24.] After a response and brief was filed,[2] on July 23,
       2018, Judge Pierantoni dismissed [Zukos’s] motion to enforce
       settlement agreement without prejudice to underlying claim.[3]
       The court further denied [Lui]’s claim for legal fees.

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2 In her response, Lui admitted she briefly considered reselling the home to
Zukos, but alleged she decided not to do so because the parties never agreed
upon a price, and consequently, no contract was formed. Additionally, she
argued the statute of frauds renders oral contracts for the sale of land
unenforceable where specific performance is sought. See Plaintiff’s Answer to
Defendant’s Motion to Enforce Settlement, 7/5/2018, at ¶¶ 8-23

3  The miscellaneous judge held a hearing that day to address the motion,
particularly on the issue of jurisdiction to proceed in the matter. Zukos alleged
that the only remedy to enforce the settlement agreement was before the
judge, and this was a collateral issue to the underlying claims. Lui argued that
the underlying action was an arbitration level eviction case, the requested
value of relief that Zukos sought exceeded arbitrational limits, and that he
should be required to file a separate action for breach of contract. The court’s
finding focused on Zukos’s request in light of the fact that a jury trial had been
demanded, and that he was seeking to have a contract enforced with a sale
of real estate involved over $100,000.00. See N.T., 7/23/2018, at 2-9.




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              On June 26, 2018, the case was certified for a Luzerne
       County arbitration panel pursuant to Pa.R.C.P. 1301, et seq. On
       August 8, 2018, Wen Hui Zie4 was added to the action as a plaintiff
       after [Lui] petitioned the court to join an additional plaintiff.

             On November 1, 2018, a Luzerne County arbitration panel
       found in favor of the plaintiffs ordering [Zukos] to pay three
       thousand one hundred fifty-eight dollars ($3158.00) for unpaid
       rent and ordering that [Zukos] vacate the premises within sixty
       (60) days of the date of the order and continue to pay $1579 per
       month for rent until [Zukos] vacates the premises. The arbitration
       panel further awarded [Zukos] to pay the court costs. On
       November 30, 2018, [Zukos] appealed the arbitration award.

             On January 3, 2019, the court held a status/scheduling
       hearing wherein dates were assigned for discovery, dispositive
       motions and a jury trial was scheduled for September 12, 2019.
       On February 20, 2019, the plaintiffs filed a motion for summary
       judgment and brief in support of same.5 After a response was filed
       by [Zukos],[6] oral argument was held on the motion for summary
____________________________________________


4 Based on Zukos’s February 7, 2019, deposition testimony, it appears that
Zie is Lui’s husband. See Plaintiff’s Motion for Summary Judgment,
2/20/2019, Exhibit C (Deposition Transcript of Stanley J. Zukos), at 16.
Collectively, we treat Lui and Zie as “the Plaintiffs.” It merits mention Zie is
not a party to this appeal.

5 In their motion for summary judgment, the Plaintiffs argued Zukos did not
possess any valid defenses to an ejectment or eviction action, and the statute
of frauds rendered any notion of an oral agreement between the parties as
unenforceable. See Plaintiff’s Motion for Summary Judgment, 2/20/2019, at
13-22.

6 In his response, Zukos averred Lui had orally agreed to transfer the deed to
him, and she subsequently refused to transfer the property. He states:

       The nature of that agreement is clearly in a factual dispute.
       [Zukos] was to remain in the premises and pay monthly rent of
       which he had paid, until such time as [he] reimbursed [Lui] for
       costs incurred and the purchase price, as a settlement of litigation
       to evict him. Once paid, [Lui] would re-convey [Zukos’s] property
       back to him. The only issue was [Lui] gathering all costs incurred



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       judgment on March 29, 2019. On June 26, 2019, the motion for
       summary judgment was granted awarding possession to the
       plaintiffs.

Trial Court Opinion, 11/19/2019, at 4-6 (italics in original; some capitalization

removed). This appeal followed.

       Preliminarily, we note that on August 23, 2019, Zukos filed a concise

statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925,

raising issues that concerned the dismissal of his motion to enforce the

settlement agreement and the court’s granting of the motion for summary

judgment. On September 23rd, this Court dismissed his appeal for failure to

comply with Pa.R.A.P. 3517. Zukos then filed a motion to reinstate the appeal,

which was granted on October 7, 2019.

       In preparation to draft its opinion, the trial court could not find a request

for transcript or a filed transcript. The court then issued an order, indicating

Zukos failed to file a motion for transcripts and ordered that he comply with



____________________________________________


       and providing it back to [Zukos]. In all respects, the agreement
       was confirmed.

Defendant’s Answer to Plaintiff’s Motion for Summary Judgment, 3/25/2019,
at ¶ 15.

He further claimed the agreement was for the settlement of litigation, and not
for the sale of real property, and consequently, the statute of frauds was not
applicable. See id., at ¶ 15. In the alternative, Zukos alleged that if the statute
of frauds applied, the present action constituted an exception because he was
in actual, open, notorious, and continuous possession of the property. See
Defendant’s Brief in Opposition to Plaintiff’s Motion for Summary Judgment,
at ¶ 11.

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the appellate rules. Zukos filed a request, but limited it to the July 23, 2018

argument regarding his motion to enforce settlement. On October 21, 2019,

the assigned court reporter sent an email to Zukos’s counsel indicating that

he was awaiting a deposit for the requested transcript. Additionally, the court

later received correspondence from Lui’s counsel directed to counsel for Zukos

requesting that the transcript for the motion for summary judgment be

included in the reproduced record.

      The court reporter notified the court that Zukos did not request the

transcript of the hearing on the motion for summary judgment. At that time

when the court drafted its opinion, it still had not received any transcripts to

include in its review. To this date, Zukos has not filed a motion for transcripts

as required by Pa.R.A.P. 1911(a).

      [T]he Rules of Appellate Procedure require an appellant to order
      and pay for any transcript necessary to permit resolution of the
      issues raised on appeal. Pa.R.A.P. 1911(a).... When the appellant
      ... fails to conform to the requirements of Rule 1911, any claims
      that cannot be resolved in the absence of the necessary transcript
      or transcripts must be deemed waived for the purpose of appellate
      review. It is not proper for either the Pennsylvania Supreme Court
      or the Superior Court to order transcripts nor is it the responsibility
      of the appellate courts to obtain the necessary transcripts.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (some internal

citations omitted). See also Pa.R.A.P. 1911(d) (“If the appellant fails to take

the action required by these rules and the Pennsylvania Rules of Judicial

Administration for the preparation of the transcript, the appellate court may




                                       -6-
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take such action as it deems appropriate, which may include dismissal of the

appeal.”).

      On appeal, Zukos contends the trial court committed an error of law by

refusing to hold a full evidentiary hearing on his motion to enforce settlement

based on a lack of jurisdiction. See Appellant’s Brief, at 8. He insists the

matter never should have proceeded beyond the motion proceedings as there

was a factual dispute regarding the existence of a settlement. Id., at 7-9.

Furthermore, he claims:

      It is understood that [the trial court], in [its] opinion, claims that
      because the proceedings for the motion to enforce settlement
      were dismissed “without prejudice”, Zukos had a right and
      opportunity to refile the same, which he did not do. Unfortunately,
      the nature of Judge Pierantoni’s dismissal related to “jurisdiction”
      because it was an alleged landlord/tenant matter entitled to
      arbitration only, put Zukos in a position that he would not have
      the right to a hearing at any time during this litigation. In fact, Lui
      actually argued that if Zukos felt that there was a breach of a
      settlement agreement, he should have filed it [under] a new
      breach of contract action.

Id., at 10 (reproduced record omitted; some capitalization removed). Lastly,

Zukos asserts he will not intentionally defend Lui’s argument concerning the

statute of frauds due to the fact that the court failed to hold a full evidentiary

hearing on his motion. Id., at 13. Zukos’s argument fails for several reasons.

      First, because Zukos’s challenge concerns whether the court held a full

hearing on his motion to enforce settlement and its corresponding findings

made at the hearing, we find adequate appellate review is not possible without

the July 23, 2019 hearing transcript. Pursuant to Pa.R.A.P. 1911(a), Zukos


                                       -7-
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was required to pay for any transcript necessary to permit the resolution of

the issues he raises on appeal. As indicated above, Zukos was on notice by

both the trial court and the court reporter that he had not paid for the

transcript to be transcribed and that the transcript was never filed. His failure

to adhere to the requirements of Rule 1911 results in the waiver of this issue

for the purpose of appellate review. See Preston, 904 A.2d at 7.

       In any event, Zukos’s underlying defense argument, central to this

litigation, is unavailing. Not only does Zukos attempt to distract this Court

with an emphasis on his motion to enforce settlement and lack of a full

hearing, he also characterizes the agreement at issue as a settlement of

litigation rather than a property contract.

       We are unpersuaded. We note that in his motion, and subsequent

pleadings, Zukos maintained that in March of 2018, the parties entered into a

verbal agreement as to the property in dispute, and therefore, he is in rightful

possession of the home. Lui denied the existence of an oral contract.

Accordingly, the agreement is subject to the Statute of Frauds despite the fact

that it also allegedly is a settlement agreement. See Firetree, Ltd. V. Dept.

of Gen. Svcs., 978 A.2d 1067, 1074 (Pa. Cmwlth. 2009).7




____________________________________________


7 While opinions of the Commonwealth Court are not binding on this Court, we
may accept them for their persuasive value. See Petow v. Warehime, 996
A.2d 1083, 1089 n.1 (Pa. Super. 2010). In this instance, we find the reasoning
in Firetree persuasive and an accurate application of Pennsylvania law.

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        Our standard of review regarding motions for summary judgment are

well-settled:

        We view the record in the light most favorable to the nonmoving
        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.

QBE Ins. Corp. v. M & S Landis Corp., 915 A.2d 1222, 1225 (Pa. Super.

2007).

        Because the matter before us concerns a property agreement, we are

guided by the following:

        The [S]tatute of [F]rauds[8] directs that agreements for the sale
        of real estate shall not be enforced unless they are in writing and
        signed by the seller. The purpose of the statute is to prevent
        perjury and fraudulent claims. The Statute of Frauds does not void
        those oral contracts relating to land which fail to comply with the
        Statute’s formal requirements. It is to be used as a shield and not
        as a sword, as it was designed to prevent frauds, not to encourage
        them. Therefore, even though an oral contract for the sale of real
        estate may not be specifically enforced, it may form the basis for
        an action to recover damages.

Empire Props., Inc. v. Equireal, Inc., 674 A.2d 297, 302 (Pa. Super. 1996)

(internal citation, quotations, and footnote omitted). “[The Statute of Frauds]

is not a mere rule of evidence, but a declaration of public policy. In the absence



____________________________________________


8   See 33 P.S. § 1.

                                           -9-
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of equities sufficient of themselves to take the case out of the statute, it

operates as a limitation upon judicial authority to afford a remedy unless

renounced or waived by the party entitled to claim its protection.” Kurland v.

Stolker, 533 A.2d 1370, 1372 (Pa. 1987) (citation omitted).

     However, there is an exception to the general rule regarding oral

contracts for the sale of real property. In Kurland, the Pennsylvania Supreme

Court explained that in order to satisfy the exception, a party seeking to

enforce the oral agreement must establish the following:

     The terms of the contract must be shown by full, complete, and
     satisfactory proof. The evidence must define the boundaries and
     indicate the quantity of the land. It must fix the amount of the
     consideration. It must establish the fact that possession was taken
     in pursuance of the contract, and, at or immediately after the time
     it was made, the fact that the change of possession was notorious,
     and the fact that it has been exclusive, continuous and
     maintained. And it must show performance or part performance
     by the vendee which could not be compensated in damages, and
     such as would make rescission inequitable and unjust.

                                      …

     The “indubitable proof” a claimant is required to proffer is
     evidence that should not only be found credible, but of such
     weight and directness as to make out the facts alleged beyond a
     doubt. As the alleged contract is not between parent and child, it
     may be proven by the acts and declarations of the parties, either
     together or separately. The acts and declarations relied upon,
     must not, however, be of an equivocal character; they must have
     such clearness and directness as will leave no doubt as to their
     meaning and purpose.

Kurland, 533 A.2d at 1373 (citations omitted).

     Here, the trial court found the following:




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     [Zukos’s] deposition transcript does not support the existence of
     an oral contract supporting an exception to the Statute of Frauds
     requirements. When [Zukos] was asked what facts he believes
     justify his remaining on the property, [Zukos] replied

        A. I have been a resident there for more than 32 years. I
        basically had communication, as did [counsel for Zukos],
        with Wells Fargo, and they did not follow through on calls
        that both I and [counsel] made to them concerning the
        regaining of the property by me.

        Q. Just so it’s clear for the record, it pertains to the eviction
        and ejection action that [Lui] has filed. Is your bases (sic)
        for challenging that that the Wells Fargo did not act
        properly, am I correct in saying that?

        A. Yes.

        Q. You have no other factors to justify why you should
        remain in the property besides that

        A. Correct.

     [Zukos] testified that he witnessed a telephone conversation
     between his attorney and [Lui], to which he was not a party:

        A. The purchase price of the house, the. (sic) what she was
        willing to do, and all related costs that had occurred in her
        purchasing the house, as well as any financial costs that
        would be incurred of me retaking the house.

        Q. Okay. Did you sign any documents pertaining to the sale
        of this house between you and Miss L[ui]?

        A. There were no documents signed.

     [Zukos] further testified:

        Q. Have you ever entered into a lease agreement with Ms.
        L[ui] is my question.

        A. No.




                                     - 11 -
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        Q. Have you ever entered into a lease agreement with Mr.
        Zie?

        A. No. I’ve never spoken to the man.

           Although [Zukos] avers that the parties reached an
     agreement with regard to settling the litigation which included that
     [Zukos] would re-acquire title to the property on March 18, 2018,
     the testimony of record as addressed above reflects that if there
     was an agreement, it appears to be a phone conversation between
     [Zukos’s] counsel and [Lui]. Importantly, a follow up letter from
     [Zukos’s] counsel to [Lui] summarizing the alleged telephone
     conversation or agreement does not exist. [Zukos’s] only
     knowledge as to the alleged agreement is the phone conversation
     he overheard where the agreement was formulated.

            [Zukos] argues that in accordance with the Kurland case,
     the fact that [Zukos’s] possession has been exclusive, continuous
     and maintained in that he has been paying rent to the
     Prothonotary’s Office makes it an exception to the Statute of
     Frauds. The Supreme Court opined in Kurland, that the “demand
     for specific performance was bold. To execute a parol contract
     against an express statute is the exercise of a large power; to
     execute it without competent proof of its existence, without the
     established test of its past execution, is a wild stretch of authority,
     which no court of law or equity ought to make.” Id. at 1376.
     Summary judgment was properly granted in the case at bar as a
     right for execution of the alleged oral agreement was “simply too
     weak” for the Court’s consideration. Kurland, [s]upra.

Trial Court Opinion, 11/19/2019, at 11-13 (record citations omitted).

     We agree with the court’s well-reasoned analysis. We cannot review

Zukos’s self-serving allegations and infer that the terms of the contract at

issue were “shown by full, complete, and satisfactory proof.” Kurland, 533

A.2d at 1373.

     Moreover, other than asserting that his possession has been exclusive,

continuous and maintained, his argument did not address all the factors


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identified in Kurland as necessary to establishing a transfer of real property

by oral agreement. Of most importance, Zukos’s argument did not show

performance or part performance which could not be compensated in

damages. See id. Viewing the record in the light most favorable to Lui, the

nonmoving party, there is no evidence demonstrating an actual, finalized

agreement between Lui and himself, let alone evidence of “such clearness and

directness” that would “leave no doubt” that there was a purported oral

agreement between the parties that should be taken out of the Statute of

Frauds. Id. Accordingly, the underlying argument is without merit, and the

trial court did not err in granting Lui’s motion for summary judgment.

       In a related matter, on April 9, 2020, Zukos filed an emergency petition

to extend deadline to remove personal property from real estate based on the

COVID-19 pandemic crisis. Zukos had previously sought relief with the trial

court, which denied his petition on March 31, 2020.9 In light of our disposition

and the trial court’s order, we deny Zukos’s request for relief.




____________________________________________


9 In its order, the court indicated that Zukos was evicted from the residence
and Lui took possession on February 18, 2020. Zukos was then given 30 days,
or until March 19, 2020 to remove his personal belongings pursuant to Section
250.505(a) of the Pennsylvania Landlord Tenant Act. However, as of the date
of the order, Zukos had not secured a residence nor did he rent a storage unit
for his belongings. The court noted that the matter identified in the emergency
petition did not involve an eviction action.

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     Order granting summary judgment affirmed. Appellant’s Emergency

Petition to Extend Deadline to Remove Personal Property from Real Estate

denied.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/27/2020




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