J-S53020-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MAYSOON ABED ALLAN,                              IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                           Appellee

                      v.

YASER MOHMOUD ALLAN,

                           Appellant                  No. 525 EDA 2017


             Appeal from the Judgment Entered December 30, 2016
              In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): January Term, 2015 No. 02230

BEFORE: BENDER, P.J.E., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                        FILED SEPTEMBER 18, 2017

        Yaser Mohmoud Allan (“Husband”) appeals from the December 30,

2016 judgment entered in favor of Maysoon Abed Allan (“Wife”), as made

final by the order entered on January 4, 2017.1        We are constrained to

affirm.

        The factual background and procedural history of this case are as

follows.    Husband and Wife were married on June 2, 1990.            In 1996,

Husband was convicted of attempted murder and was sentenced to 8 to 16

years’ imprisonment. See State v. Allan, Case No. 92000306 (N.J. Super.

Passaic).    Later that year, he was convicted of six counts including, inter

alia, counterfeiting labels and was sentenced to an aggregate term of 11




1
    As discussed infra, this order resolved Wife’s claims against Husband.
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years’ imprisonment. See United States v. Allan, 2001 WL 1152925, *1

(E.D. Pa. Sept. 18, 2001).

      While Husband was incarcerated, Wife incorporated Collectible Art &

Gallery, Inc. (“Collectible Art”).    On December 11, 2000, the Court of

Common Pleas of Philadelphia County entered a divorce decree dissolving

the parties’ matrimonial bond.       Once Husband was released from prison,

Wife hired him to work at Collectible Art. During this time, the parties lived

together, engaged in romantic relations, and Husband made several

investments in merchandise and equipment in Collectible Art.      On January

29, 2014, Husband moved out of Wife’s residence, where he had been

staying since his release from prison.

      On January 20, 2015, Wife filed a complaint in equity and a motion for

a temporary restraining order and preliminary injunction seeking an order

barring Husband from stating that he was still married to Wife. On March

27, 2015, the trial court denied Wife’s temporary restraining order and

preliminary injunction motion.   On May 6, 2015, Husband filed an answer

which included new matter. On January 11, 2016, Husband requested leave

to file an amended answer and counterclaim. On March 15, 2016, five days

after the trial court granted his request, Husband filed an amended answer

and counterclaim alleging conversion.     Husband averred that, “On or near

[January 29, 2014, Wife] revealed that she intended to deprive [Husband] of

his merchandise and equipment and the proceeds of each of the same.”



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Husband’s Amended Answer and Counterclaim, 3/15/16, at 3.             On April 22,

2016, Wife filed an answer to the counterclaim which included new matter.

      On October 25, 2016, Wife moved for summary judgment on

Husband’s    conversion   counterclaim.      Wife    argued    that    Husband’s

counterclaim was barred by the statute of limitations.        On December 30,

2016, the trial court granted Wife’s motion for summary judgment.              On

January 7, 2017, the trial court entered an order discontinuing Wife’s cause

of action. This timely appeal followed.2

      Husband presents four issues for our review:

    1. Whether the [t]rial [c]ourt committed an error of law and abused
       its discretion in granting [the m]otion for [s]ummary [j]udgment
       without full and/or proper review of [Pennsylvania Rule of Civil
       Procedure] 1033?

    2. Whether the [t]rial [c]ourt committed an error of law and abused
       its discretion by improperly granting [the m]otion for [s]ummary
       [j]udgment pursuant to [Pennsylvania Rule of Civil Procedure]
       1035.2 and the standard the [trial c]ourt must use in granting
       and/or denying same?

    3. Whether the [t]rial [c]ourt committed an error of law and abused
       its discretion in concluding [Husband’s] cause of action for
       conversion was barred by the statute of limitations for
       conversion pursuant to 42 Pa.C.S.[A. §] 5524 when the record is
       unclear as to when the alleged conversion took place?

    4. Whether the [t]rial [c]ourt committed an error of law and abused
       its discretion in granting [m]otion for [s]ummary [j]udgment as
       [Wife’s m]otion . . . was premature [since] discovery had not yet
       been completed?

2
  The trial court did not order Husband to file a concise statement of errors
complained of on appeal. See Pa.R.A.P. 1925(b). Nonetheless, the trial
court issued a Rule 1925(a) opinion on April 25, 2017.



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Husband’s Brief at 6.3

        Husband challenges the trial court’s order granting Wife’s motion for

summary judgment. “The trial court’s entry of summary judgment presents

a question of law, and therefore our standard of review is de novo and our

scope of review is plenary.”     Branton v. Nicholas Meat, LLC, 159 A.3d

540, 545 (Pa. Super. 2017) (citation omitted).       “A motion for summary

judgment is based on an evidentiary record that entitles the moving party to

a judgment as a matter of law.” Yenchi v. Ameriprise Fin., Inc., 161 A.3d

811, 818 (Pa. 2017) (citation omitted).        “In considering a motion for

summary judgment, a court views the evidence 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.” Green v.

Pennsylvania Prop. & Cas. Ins. Guar. Ass’n, 158 A.3d 653, 658 (Pa.

Super. 2017) (citation omitted).       “When the facts are so clear that

reasonable minds cannot differ, a trial court may properly enter summary

judgment.” Brown v. Everett Cash Mut. Ins. Co., 157 A.3d 958, 962 (Pa.

Super. 2017) (citation omitted).

        Pursuant to statute, “[a]n action for taking, detaining or injuring

personal property, including actions for specific recovery thereof” must be

commenced within two years.        42 Pa.C.S.A. § 5524(3).    This statute of

limitations begins to run “from the time the cause of action accrued.”    42

3
    We have re-numbered the issues for ease of disposition.


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Pa.C.S.A. § 5502(a).     A claim for conversion accrues when an individual

“unreasonably withhold[s] possession [of property] from one who has the

right to it.”   PTSI, Inc. v. Haley, 71 A.3d 304, 314 (Pa. Super. 2013)

(internal alteration and citation omitted).    In her motion for summary

judgment, Wife alleged that Husband judicially admitted that the statute of

limitations on his counterclaim began to run on January 29, 2014 when she

withheld his property. The trial court agreed and concluded that, because

Husband filed his counterclaim for conversion on March 15, 2016, it was

barred by the statute of limitations.

      In his first issue, Husband argues that even if the limitations period

began to run on January 29, 2014, he filed his counterclaim within two years

because he filed his motion to amend his answer, which attached a copy of

his amended answer and counterclaim, on January 11, 2016. Wife argues

that Husband failed to preserve this issue for appellate review.    We agree

that Husband has waived this claim of error.

      Pennsylvania Rule of Civil Procedure 1035.3 provides, in relevant part:

      (a) Except as provided in subdivision (e), the adverse party may
      not rest upon the mere allegations or denials of the pleadings
      but must file a response within thirty days after service of the
      motion identifying

      (1) one or more issues of fact arising from evidence in the record
      controverting the evidence cited in support of the motion or from
      a challenge to the credibility of one or more witnesses testifying
      in support of the motion, or




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     (2) evidence in the record establishing the facts essential to the
     cause of action or defense which the motion cites as not having
     been produced.

Pa.R.C.P. No. 1035.3(a) (note omitted). This Court’s most detailed analysis

of waiver for failing to raise an issue in opposition to summary judgment was

in Harber Philadelphia Ctr. City Office Ltd. v. LPCI Ltd. P’ship, 764

A.2d 1100 (Pa. Super. 2000), appeal denied, 782 A.2d 546 (Pa. 2001). This

Court explained that:

     In cases preceding the promulgation of [Pennsylvania Rules of
     Civil Procedure] 1035.2 and 1035.3, [this Court] allowed
     presentation of arguments for the first time on appeal where the
     non-moving party had failed to file a response to the motion for
     summary judgment and the trial court granted the undefended
     motion without conducting an independent review of the record.
     [This Court] based [its] decisions on the premise established by
     former [Pennsylvania Rule of Civil Procedure] 1035 that the
     burden of persuasion on summary judgment remained with the
     moving party and that the non-moving party had no duty even
     to respond to a summary judgment motion. In the absence of a
     response, [Rule 1035] imposed a duty on the trial judge to
     conduct an independent review of the record to discern the
     movant’s entitlement to judgment as a matter of law.
     Accordingly, [this Court] addressed arguments presented for the
     first time on appeal because the non-moving party had no duty
     to present them below and because the trial court’s failure to
     discern such points indicated a failure in the process of
     adjudication mandated by Rule 1035. Thus, [this Court] allowed
     appellants to raise points not addressed by the trial court
     precisely because the court did not address them despite the
     mandate of the former rule that those points be considered prior
     to entry of summary judgment.

     By contrast, under Rule 1035.2 and its corollary, Rule 1035.3,
     the non-moving party bears a clear duty to respond to a motion
     for summary judgment. If the non-moving party does not
     respond, the trial court may grant summary judgment on that
     basis. Clearly, Rule 1035.3 substantially attenuates the duty of
     the trial court as it existed under former Rule 1035 to conduct an


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     independent review of the record. Accordingly, the trial court’s
     failure to scour the record for every conceivable ground on which
     to deny summary judgment cannot serve as a basis for appellate
     review.     Because, under Rule 1035.3, the non-moving
     party must respond to a motion for summary judgment,
     he or she bears the same responsibility as in any
     proceeding, to raise all defenses or grounds for relief at
     the first opportunity. A party who fails to raise such defenses
     or grounds for relief may not assert that the trial court erred in
     failing to address them. To the extent that our former case law
     allowed presentation of arguments in opposition to summary
     judgment for the first time on appeal it stands in derogation of
     Rules 1035.2 and 1035.3. . . . Th[is] Court, as an error-
     correcting court, may not purport to reverse a trial court’s order
     where the only basis for a finding of error is a claim that the
     responsible party never gave the trial court an opportunity to
     consider.

Harber, 764 A.2d at 1104-1105 (internal quotation marks and citations

omitted; second emphasis added).

     Applying this Rule in Harber, this Court found that the appellant

waived its argument that the trial court erred when finding its claim was

barred by the doctrine of res judicata. See id. This Court explained that

the appellant’s choice to only argue that there was a genuine issue of

material fact for trial was a strategic decision that foreclosed appellate

review of its purely legal argument regarding the doctrine of res judicata.

See id. at 1105.

     The scenario in the case sub judice is similar. In his response to Wife’s

motion for summary judgment, Husband chose to focus on the date the

statute of limitations began to run. Specifically, he argued that the statute

of limitations did not begin to run on or about January 29, 2014. He did not



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assert the position, which he does on appeal, that his January 11, 2016 filing

satisfied the two-year statute of limitations because he attached his

proposed counterclaim to his motion to amend his answer.           This was a

strategic error that proves fatal to Husband’s argument that his counterclaim

was timely filed.

         This Court applied Harber in the context of a statute of limitations

defense in Devine v. Hutt, 863 A.2d 1160 (Pa. Super. 2004). In Devine,

this Court affirmed that “arguments not raised initially before the trial court

in opposition to summary judgment cannot be raised for the first time on

appeal.” Id. at 1169. As such, this Court found that the plaintiffs waived

their arguments as to why their lawsuit was timely filed because they failed

to present those arguments to the trial court. See id. at 1170. Applying

Harber and Devine, we conclude that Husband waived his first appellate

issue.

         In his second and third issues, Husband argues that the trial court

erred in finding that the statute of limitations period began to run on

January 29, 2014.      The trial court found that Husband judicially admitted

that the statute began to run on that date. This finding rested on Husband’s

averment that, “[o]n or near [January 29, 2014, Wife] revealed that she

intended to deprive [Husband] of his merchandise and equipment and that

the proceeds of each of the same.”          Husband’s Amended Answer and

Counterclaim, 3/15/16, at 3.



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      As this Court recently explained, five elements must be satisfied

      for an averment to be a judicial admission. First, the averment
      must be made in a verified pleading, stipulation, or similar
      document. Second, the averment must be made in the same
      case in which the opposing party seeks to rely upon it. . . . Third,
      the averment must relate to a fact and not a legal conclusion.
      Fourth, the averment must be advantageous to the party who
      made it. Finally, the fact must be plausible.

Branton, 159 A.3d at 557.

      In this case, the first four requirements are easily satisfied. Husband’s

amended answer and counterclaim was verified by Husband. The averments

were made in the instant action, not another unrelated action. Third, when

Wife told Husband that she would not return his property is a factual, not

legal, question.   Next, Wife telling Husband that she would not return his

property is a key element of the tort of conversion and, therefore, was

advantageous to Husband.        Thus, we focus our attention on the final

requirement to determine whether the averment made in Husband’s

amended answer and counterclaim was a judicial admission which binds

Husband.

      After careful review, we conclude that Husband’s averment was

plausible. Husband points to no evidence in the record that contradicts his

statement that Wife told him she would deprive him of his property on or

about January 29, 2014. To the contrary, Husband admits in his amended

answer and counterclaim that the parties separated on or about that date.

As such, the trial court correctly found that Husband judicially admitted that



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Wife told him she would deprive him of his property on January 29, 2014.

Accordingly, the statute of limitations began to run on that date.4

      In his final issue, Husband argues that the trial court erred in granting

summary judgment prior to the end of discovery. This argument is without

merit. Pursuant to rule, a party may file a motion for summary judgment at

any time after the relevant pleadings have been filed.          See Pa.R.C.P.

1035.2; Manzetti v. Mercy Hosp. of Pittsburgh, 776 A.2d 938, 950-951

(Pa. 2001) (citation omitted) (“Summary judgment may be entered prior to

the completion of discovery in matters where additional discovery would not

aid in the establishment of any material fact.”); see also Anthony Biddle

Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d 916, 928 (Pa.

Super. 2011) (trial courts are only required to give parties a reasonable time

to complete discovery).

      In his brief, Husband only makes general averments that more

discovery was necessary to develop his conversion claim. He points to no

discovery which he could have completed that would show that the statute

of limitations would commence after January 29, 2014.            Instead, the

pleadings in this case indicate that Husband judicially admitted that the

statute of limitations began to run on or about January 29, 2014. Therefore,

4
  Husband also argues that some conversions occurred after January 29,
2014. This argument is waived for failure to present any argument related
to what specific conversions occurred after that date.      See Pa.R.A.P.
2119(a). Moreover, even if this argument were not waived, Husband’s
counterclaim is only premised on conversions that occurred prior to January
29, 2014.


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we conclude that the trial court did not err by considering Wife’s summary

judgment motion prior to the close of discovery. Accordingly, we affirm the

judgment entered in favor of Wife.

        In her brief, Wife argues that we should award attorney fees and costs

pursuant to Pennsylvania Rule of Appellate Procedure 2744, which provides

that:

        In addition to other costs allowable by general rule or Act of
        Assembly, an appellate court may award as further costs
        damages as may be just, including [ ] a reasonable counsel fee
        . . . if it determines that an appeal is frivolous or taken solely for
        delay or that the conduct of the participant against whom costs
        are to be imposed is dilatory, obdurate[,] or vexatious.

Pa.R.A.P. 2744. Specifically, Wife argues that this appeal is frivolous.

        We decline Wife’s request because, although they are either waived or

without merit, Husband’s arguments are not frivolous.           Although Husband

points to no cases precisely on point, and we are similarly unable to find

any, the decisional law of this Commonwealth indicates that Husband’s

motion to amend his counterclaim may have been the operative day for

purposes of the statute of limitations.         See Meadows v. Goodman, 993

A.2d 912, 915 (Pa. Super. 2010) (trial court erred in denying motion to

amend because the motion was filed prior to the expiration of the statute of

limitations); cf. Sardo v. Smith, 851 A.2d 168, 169 n.1 (Pa. Super. 2004)

(internal alteration and quotation marks omitted) (“It is well settled in this

jurisdiction that the tolling for the statute of limitations occurs when there is

proper, prompt service of a timely filed writ of summons.”); Aivazoglou v.


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Drever Furnaces, 613 A.2d 595, 598–600 (Pa. Super. 1992) (motion to

amend to add new defendants does not toll statute of limitations because it

does not give notice to the party against whom the additional claims are

being asserted).

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/18/2017




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