J-A08006-17


                                  2017 PA Super 210

CHARLES N. FINDER                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

TODD B. CRAWFORD AND JENNIFER L.
CRAWFORD

                            Appellee                  No. 1228 EDA 2016


                  Appeal from the Order Entered March 15, 2016
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2014-09663


CHARLES N. FINDER                                 IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

TODD B. CRAWFORD AND JENNIFER L.
CRAWFORD

                            Appellants                No. 1372 EDA 2016


                  Appeal from the Order Entered March 15, 2016
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2014-09663


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

OPINION BY PANELLA, J.                                  FILED JULY 06, 2017




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A08006-17


       Appellant,1 Charles N. Finder, appeals from the order that granted

summary judgment to Todd and Jennifer Crawford and dismissed Finder’s

complaint asserting a claim of malicious prosecution. After careful review,

we agree with the trial court’s conclusion that Finder failed to create a

factual record capable of supporting his claim. We therefore affirm.

       Finder and the Crawfords were neighbors, whose suburban driveways

were separated by a thin strip of lawn. Unfortunately, they did not enjoy this

proximity, and the Crawfords filed several complaints to the local police

regarding Finder’s behavior.

       The police never filed charges against Finder, but the Crawfords

ultimately filed a private criminal complaint asserting that Finder was guilty

of the summary offense of harassment. The Montgomery County District

Attorney’s Office approved the complaint, and it proceeded to trial before

Magisterial District Judge Karen Eisner Zucker.

       While the Crawfords were presenting their case, Judge Zucker

interrupted the proceedings and urged the parties to “settle their differences

… and get along as neighbors.” What happened next is disputed by the

parties and forms the crux of the trial court’s decision to grant summary

judgment.

____________________________________________


1
  This appeal includes the consolidated cross-appeal filed by the Crawfords.
For ease of reference, we will refer to Finder as the appellant and the
Crawfords as appellees. We address the cross appeal later in our decision.



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       The Crawfords, in their motion for summary judgment, asserted that

Judge Zucker presided over attempts to have the parties settle their

differences and resolve the litigation amicably. In particular, the Crawfords

asserted that at “the conclusion of her compromise discussions with the

parties … Judge Zucker advised the Crawfords and [Finder’s] counsel that, in

essence, a compromise had been reached involving a conditional dismissal of

the harassment charge[.]” Motion for Summary Judgment, at ¶ 10(f). The

dismissal was to be conditioned upon Finder’s behavior over the next month

and a half.

       In contrast, Finder asserted “absolutely no conditional compromise

was reached.” Answer to Motion for Summary Judgment, at ¶ 10(f).

However, he admitted that he had “no total recollection of exactly what

[Judge Zucker] said[,]” and that he had “no recollection of the judge talking

about an opportunity for the parties to settle the matter[.]” Id., at ¶ 10(c),

(e).

       Both parties acknowledged that the trial was continued to a later date.

The Crawfords asserted that the continuance was “an adjournment in

contemplation of dismissal to which [Finder] consented, [as well as] a

conditional   dismissal,   and   a   compromise   between   [Finder]   and   the

Crawfords.” Motion for Summary Judgment, ¶ 10(i). Finder, for his part,

denied that there was “an adjournment in contemplation of dismissal[.]”




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      Both parties agree that shortly before the date for the rescheduled

trial, the Crawfords requested that Judge Zucker cancel the trial, as they had

not had any issues with Finder since the previous hearing. Judge Zucker

subsequently dismissed the Crawford’s private criminal complaint. Finder’s

counsel wrote to Judge Zucker, inquiring whether it was necessary to file a

motion for judgment of acquittal. No judgment of acquittal was entered on

the docket.

      Finder subsequently filed the instant suit, asserting multiple claims

against the Crawfords. After the Crawfords filed preliminary objections,

Finder amended his complaint and asserted only a single claim premised

upon malicious prosecution.

      The Crawfords subsequently filed for summary judgment, asserting

that Finder had not provided evidence capable of supporting a favorable

verdict on his claim for malicious prosecution. Finder filed a response to the

motion, and attached a “certification” that asserted several facts.

      The trial court granted the motion for summary judgment, dismissed

Finder’s complaint, and denied the Crawfords’ request for attorney’s fees.

Both parties filed timely appeals from the trial court’s order.

      On appeal, Finder challenges the trial court’s dismissal of his

complaint. The Crawfords challenge the trial court’s refusal to award

attorney’s fees. We will address these issues sequentially.




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      First, Finder argues that the trial court erred in granting summary

judgment. We review a challenge to the entry of summary judgment as

follows:

      [We] may disturb the order of the trial court only where it is
      established that the court committed an error of law or abused
      its discretion. As with all questions of law, our review is plenary.

      In evaluating the trial court’s decision to enter summary
      judgment, we focus on the legal standard articulated in the
      summary judgment rule. See Pa.R.C.P., Rule 1035.2. The rule
      states that where there is no genuine issue of material fact and
      the moving party is entitled to relief as a matter of law,
      summary judgment may be entered. Where the nonmoving
      party bears the burden of proof on an issue, he may not merely
      rely on his pleadings or answers in order to survive summary
      judgment. Failure of a non-moving party to adduce sufficient
      evidence on an issue essential to his case and on which he bears
      the burden of proof establishes the entitlement of the moving
      party to judgment as a matter of law. Lastly, we will review 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.

E.R. Linde Const. Corp. v. Goodwin, 68 A.3d 346, 349 (Pa. Super. 2013)

(citation omitted; brackets in original).

      Here, the trial court concluded that Finder had failed to adduce

sufficient evidence to support his claim for malicious prosecution. We agree.

Initially, we observe that the record subject to review pursuant to a motion

for summary judgment is explicitly limited. Pursuant to Rule 1035.1 of Civil

Procedure,    the   record   consists   of:   (1)   pleadings;   (2)   depositions,

admissions, responses to interrogatories, affidavits; and (3) reports signed

by expert witnesses that comply with the rules of discovery.


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      Finder contends that his “certification” qualified as an affidavit, and

that it asserted sufficient facts to withstand the motion for summary

judgment. In order to qualify as an affidavit, it must be “a statement … of

fact or facts, signed by the person making it, that … is unsworn and contains

a statement that it is made subject to the penalties of 18 Pa.C.S.A. § 4904

relating to unsworn falsification to authorities.” Pa.R.C.P. 76.

      The trial court concluded that Finder’s “certification” does not qualify

as evidence of record under the Rules of Civil Procedure as it was not signed.

The “certification” contains a signature line with the phrase “/s/ original

signature retained by filing party.” The trial court concluded that this

signature line does not constitute a signature by Finder.

      Under    traditional   circumstances,   this   would   be    a   reasonable

conclusion. See Pa.R.C.P. 205.3. However, Finder filed his “certification”

through electronic means. It therefore is subject to the dictates of Pa.R.C.P.

205.4.

      Under Rule 205.4, the “electronic filing of a legal paper constitutes a

certification … by the filing party that a hard copy of the legal paper was

properly signed and, where applicable, verified[.]” We read this Rule as

permitting a signature such as that used by Finder in this case. The rule

provides that the electronic filing constitutes a certification, subject to

sanctions, that the document has been properly signed and verified. If any

other party doubts that the document has been properly signed or verified, it


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J-A08006-17


may require the filing party to produce the hard copy for inspection. See

Pa.R.C.P. 205.4(b)(5).

      Thus, while Finder’s signature line is perhaps not best practice–the

filing of a scanned signature page is less likely to create additional

opportunities for litigation–it is sufficient to qualify as signed under the rules.

However, it does not contain an assertion that the statement is made

subject to the penalties of 18 Pa.C.S.A. § 4904, unsworn falsification to

authorities. Instead, it contains a statement that it is made “subject to the

penalties of 18 Pa.C.S.A. § 4909[.]”

      Section 4909 describes the crime of a witness or informant soliciting or

accepting   a   bribe.   Arguably,   this   constitutes   a   mere   de   minimus

typographical error. But we think not. The requirement for the statement

evinces a policy seeking to ensure the reliability of affidavits by making it

clear to the affiant that he is subjecting himself to criminal penalties if he

knowingly makes false statements.

      The incorrect citation to the criminal penalty would provide an affiant

with an argument that he was unaware of the applicability of criminal

penalties, thereby frustrating the intent of the rule. Sometimes, the practice

of law requires strict compliance. We conclude that this rule is one such

instance.

      As a result, the “certification” does not qualify as an affidavit under

Pa.R.C.P. 76. While we disagree with part of the trial court’s reasoning, we


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ultimately determine that it did not abuse its discretion when it refused to

consider the “certification.” See Welsh v. National Railroad Passenger

Corp., 154 A.3d 386, 391 (Pa. Super. 2017) (trial court did not err in

refusing to consider purported affidavits that did not comply with Rule 76).

       Similarly, the denials2 in his response to the motion for summary

judgment do not qualify as evidence of record. The only evidence of record

under Rule 1035.1 adduced by Finder was his pleadings.

       However, Finder was not entitled to merely rely on his pleadings but

rather was required to set forth specific facts demonstrating a genuine issue

of fact. See Bank of America, N.A. v. Gibson, 102 A.3d 462, 464 (Pa.

Super. 2014); Pa.R.C.P. 1035.3. Thus, he utterly failed to produce any

evidence of record to support his opposition to the motion for summary

judgment. “Failure of a non-moving party to adduce sufficient evidence on

an issue essential to its case and on which it bears the burden of proof ...

establishes the entitlement of the moving party to judgment as a matter of

law.” Young v. Commonwealth Dep’t of Transportation, 744 A.2d 1276,

1277 (Pa. 2000) (citation omitted). We therefore conclude that Finder’s only

issue on appeal merits no relief.

       Turning to the Crawford’s cross-appeal, we note that they challenge

the trial court’s refusal to award them attorney’s fees. We review the denial
____________________________________________


2
  The admissions in his response qualify as evidence of record. See
Pa.R.C.P. 1035.1.



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of a motion for sanctions for an abuse of discretion. See Dean v. Dean, 98

A.3d 637, 644 (Pa. Super. 2014). The trial court has significant discretion in

determining      whether     to   impose       sanctions.   See    Pa.R.C.P.   1023.1,

Explanatory Comment.

       An award of attorney’s fees is appropriate where utilized as a sanction

only where it is shown that a party’s conduct during the pendency of the

matter was “dilatory, obdurate or vexatious,” or in bad faith. See 42

Pa.C.S.A. § 2503(7); Thunberg v. Strause, 682 A.2d 295, 299-300 (Pa.

1996).3 See also Twp. of South Strabane v. Piecknick, 686 A.2d 1297,

1301 (Pa. 1996) (denying sanctions in contempt case and stating, “[w]e do

not believe the intent of the rule permitting the recovery of counsel fees is to

penalize all those who do not prevail in an action”).             A grant of summary

judgment does not necessarily mean that the pleading at issue meets the

definition of vexatious or arbitrary conduct. See Santilo v. Robinson, 557

A.2d 416, 417 (Pa. Super. 1989).

       The Crawfords first assert that the trial court only considered whether

Finder had acted in bad faith in instituting this civil proceeding. They claim

that the court failed to consider whether Finder’s actions in initiating the
____________________________________________


3
  “Arbitrary conduct is that which is based on random or convenient selection
or choice rather than based upon reason or nature. Litigation is vexatious
when suit is filed without sufficient grounds in either law or fact and if the
suit served the sole purpose of causing annoyance. A lawsuit is commenced
in bad faith when it is filed for purposes of fraud, dishonesty or corruption.”
Thunberg, 682 A.2d at 299-300.



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J-A08006-17


proceeding were     vexatious,   or   whether   Finder’s continuation of    the

proceeding was obdurate.

      Our review of the trial court’s reasoning does not comport with the

assertions made by the Crawfords. The trial court declined to award

attorney’s fees to the Crawfords as it determined that Finder’s claims were

“not without any basis in law or fact so as to exclude the possibility he was

proceeding in good faith.” Thus, the trial court found that Finder had a

reasonable basis in law and fact to make his claims.

      Based upon the record before us, we cannot conclude that this was an

abuse of the trial court’s discretion. Finder has consistently argued that he

did not compromise on his claim of innocence before Judge Zucker. His

failure to establish this claim sufficiently to withstand the Crawfords’ motion

for summary judgment may simply have been a procedural misstep, as

opposed to a substantive flaw in his case. The trial court’s conclusion is

supported by the record and is not unreasonable.

      Next, the Crawfords argue that the trial court erred in requiring that

they establish bad faith to justify the award of attorney’s fees. Similar to

their previous argument, we conclude that this construction misidentifies the

basis for the trial court’s conclusion. The trial court determined that the

Crawfords had failed to establish that Finder’s actions had no justifiable basis

in the law. It did not require them to establish bad faith. As noted above,

these conclusions are supported by the record and reasonable.


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J-A08006-17


      Finally, the Crawfords request this Court to award them attorney’s fees

due to the frivolity of this appeal. While we conclude that Finder’s appeal

does not merit any relief, we do not conclude that his appeal was frivolous.

He identified a legitimate issue with the trial court’s reasoning, even though

it was not sufficient to afford him relief. We therefore decline the Crawfords’

request for attorney’s fees.

      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/6/2017




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