J-A17030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAMES DICKERSON                                      IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

DESIMONE, INC. D/B/A DESIMONE AUTO
GROUP

                            Appellee                      No. 1581 EDA 2015


                Appeal from the Judgment Entered May 15, 2015
              In the Court of Common Pleas of Philadelphia County
                 Civil Division at No(s): 4526 August Term, 2011


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

MEMORANDUM BY LAZARUS, J.:                          FILED SEPTEMBER 07, 2016

        James Dickerson appeals from the judgment entered in favor of

DeSimone, Inc. D/B/A DeSimone Auto Group (“DeSimone”) in the Court of

Common Pleas of Philadelphia County. After our review, we affirm.

        This case involves a failed transaction between Dickerson and

DeSimone for the sale of a vehicle.            On January 12, 2008, Dickerson

purportedly     purchased     a   2004     Chevy   Silverado   from   DeSimone   for

$16,383.05. DeSimone allowed Dickerson to take possession of the vehicle,

without any exchange of money, and Dickerson drove the vehicle off the lot.

Thereafter, Dickerson replaced the tire rims, and he discarded the ones he

had replaced. DeSimone was unable to obtain financing terms agreeable to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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both parties, and Dickerson returned the car to DeSimone on January 22,

2008.     However, Dickerson returned the vehicle without the original tire

rims.

        DeSimone filed a criminal complaint against Dickerson, alleging theft.

On January 24, 2008, police arrested Dickerson at his home. The court

released Dickerson on bond the next day, and on January 6, 2009, at the

request of the Philadelphia District Attorney’s Office, the Honorable

Gwendolyn Bright ordered the charges against Dickerson nolle prossed.

        In August of 2011, Dickerson commenced a fraud action against

DeSimone by writ of summons, and thereafter filed an amended complaint

alleging one count of malicious prosecution. DeSimone filed an answer, new

matter and counterclaim, alleging trespass to chattels, conversion, unjust

enrichment and breach of contract.            Dickerson filed an answer to

DeSimone’s counterclaim. DeSimone filed a motion for summary judgment,

and the Honorable Shelley Robbins-New granted the motion and entered

judgment against Dickerson on the malicious prosecution claim. Thereafter,

following a non-jury trial, the Honorable Jacqueline Allen entered a verdict in

favor of Dickerson on DeSimone’s counterclaims, concluding that DeSimone

failed to establish a prima facie case on any of its claims.

        Dickerson raises two issues on appeal, challenging the orders entered

by both Judge Robbins-New and Judge Allen:

        1. Did [Judge Robbins-New] commit an error of law in granting
           DeSimone’s Motion for Summary Judgment when [she] held
           Dickerson had not met the elements of malicious prosecution?

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       2. Did [Judge Allen] commit an error of law in granting (in part)
          DeSimone’s post-trial motion (therefore causing the entry of
          judgment in favor of DeSimone) on its counterclaim when the
          court found DeSimone presented no credible evidence of
          damages but nonetheless vacated the trial court verdict in
          part upon Dickerson’s failure to plead new matter to
          DeSimone’s counterclaim?

Appellant’s Brief, at 10.

       In reviewing the trial court's grant of summary judgment, “[a]n
       appellate court may disturb the order of the trial court only
       where there has been an error of law or a manifest abuse of
       discretion. Notwithstanding, the scope of review is plenary and
       the appellate court shall apply the same standard for summary
       judgment as the trial court.” Cooper v. Delaware Valley
       Medical Ctr., 539 Pa. 620, 632, 654 A.2d 547, 553 (1995).

BLaST Intermediate Unit 17 v. CNA Insurance Companies, 674 A.2d

687, 689 (Pa. 1996).

         To establish a successful claim of malicious prosecution, a plaintiff

must show that the defendant “instituted proceedings without probable

cause, with malice, and that the proceedings were terminated in favor of the

plaintiff.”   Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa.

Super. 1995) (citations omitted). Probable cause in the context of malicious

prosecution does not require proof beyond a reasonable doubt, but rather, is

defined as “a reasonable ground of suspicion supported by circumstances

sufficient to warrant an ordinary prudent man in the same situation in

believing that a party is guilty of the offense.” Id. at 86 (citations omitted).

A showing of probable cause to institute proceedings against a plaintiff

establishes an absolute defense against an action for malicious prosecution,



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which renders immaterial the issue of whether the prosecutor’s motive is

malicious or otherwise.   Bruch v. Clark, 507 A.2d 854, 856 (Pa. Super.

1986).

      Judge Robbins-New found that Dickerson voluntarily returned the

vehicle to DeSimone when financing could not be arranged; however, he

returned the vehicle without its original tire rims. Dickerson admitted to

replacing and discarding the “original spinning rims.” See Plaintiff’s Answer

to New Matter and Counterclaim, 3/12/12, at ¶ 55. DeSimone claimed the

missing tire rims were of greater value than the replacements, thus

depriving DeSimone of the value removed from the vehicle.

      We agree with Judge Robbins-New’s determination that the evidence,

viewed in the light most favorable to Dickerson, as plaintiff, established that

he removed the tire rims, replaced them, returned the vehicle without the

original rims, and, after receiving notice about the condition of the returned

vehicle, failed to either return the original rims or reimburse DeSimone for

them. As the court stated, “[t]hese facts demonstrated reasonable grounds

of suspicion that [Dickerson] obtained a vehicle from DeSimone, removed

value from the vehicle and returned the vehicle with the intent to deprive

the DeSimone of the value removed from the vehicle.”          See Trial Court

Opinion, 11/26/13, at 3-4.      Thus, the evidence established there was

probable cause for the arrest and, consequently, DeSimone had a complete

defense to the claim of malicious prosecution. Accordingly, we agree with




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Judge Robbins-New that summary judgment was appropriate.              Bruch,

supra.

       Next, Dickerson argues that Judge Allen erred in vacating her February

2, 2015 order. Following the non-jury trial on DeSimone’s counterclaims,

Judge Allen entered a verdict in favor of Dickerson, finding DeSimone had

failed to establish a prima facie case on its counterclaims of trespass to

chattel, conversion, unjust enrichment and breach of contract. Thereafter,

on April 23, 2015, following post-trial motions and oral argument, Judge

Allen withdrew her findings, vacated her February 2, 2015 order, and issued

an order finding in favor of DeSimone on the trespass to chattel claim.

Judge Allen assessed no damages, however, concluding that DeSimone had

failed to meet its burden of establishing a quantifiable loss.1

       On appeal, Dickerson argues Judge Allen erred in vacating her

February 2, 2015 order and ruling in favor of DeSimone on the trespass to

chattels claim because DeSimone “presented no credible evidence of

damages[.]”      Appellant’s Brief, at 10. We find no error. The court entered

its verdict after determining, on post-trial motions, that DeSimone had

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1
  Appellee DeSimone argues that the trial court equated “15 inch standard
steel rims with 20 or 22 inch chrome alloy spinning rims, which is against
the weight of the evidence[,]” see Appellee’s Brief, at 24, and, therefore,
damages should have been awarded. However, there is no indication in the
record before us that DeSimone filed an appeal or cross-appeal from Judge
Allen’s order of April 23, 2015.




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presented evidence, in part based on Dickerson’s admissions, sufficient to

establish a prima facie case of trespass to chattels.2         It was within the

court’s province to assess no damages. The trial court, sitting as factfinder,

was free to reject DeSimone’s evidence of value as not credible.               See

Condio v. Erie Insurance Exchange, 899 A.2d 1136 (Pa. Super. 2006)

(credibility determinations of trial court sitting as factfinder are binding on

appellate court); see also Northeast Fence & Iron Works, Inc. v.

Murphy Quigley Co., Inc., 933 A.2d 664 (Pa. Super. 2007).

       Dickerson also claims Judge Allen erred in vacating the original ruling

on the trespass to chattels claim in part due to Dickerson’s failure to plead

new matter in his reply to DeSimone’s counterclaim. This claim is waived.

Dickerson’s argument consists of the following: “As to Dickerson’s failure to

plead New Matter to the counterclaim, neither DeSimone nor the trial court

even specify why that would occasion the transfer (via post-trial motion) of

judgment from Dickerson to DeSimone.” Appellant’s Brief, at 25. Dickerson

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2
    A trespass to a chattel may be committed by intentionally (a)
dispossessing another of the chattel, or (b) using or intermeddling with a
chattel in the possession of another. One who commits a trespass to a
chattel is subject to liability to the possessor of the chattel if, but only if, (a)
he dispossesses the other of the chattel, or (b) the chattel is impaired as to
its condition, quality, or value, or (c) the possessor is deprived of the use of
the chattel for a substantial time, or (d) bodily harm is caused to the
possessor, or harm is caused to some person or thing in which the possessor
has a legally protected interest. See Restatement (Second) of Torts §§ 217,
218. See also Pestco, Inc. v. Associated Products, Inc., 880 A.2d 700
(Pa. Super. 2005).



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fails to develop this argument in his brief, and he cites no authority. See

Pa.R.A.P. 2119(a), (b), 2101; see also Rettger v. UPMC Shadyside, 991

A.2d 915 (Pa. Super. 2010) (appellant’s failure to cite single source of

authority to support its analysis or to set forth standard of review waived its

claim on appeal); Borough of Mifflinburg v. Heim, 705 A.2d 456, 467 (Pa.

Super. 1997) (deeming question waived [b]ecause appellant's discussion of

this issue in the argument portion of his brief is limited to one sentence and

includes no supporting citations to law[.]”).3

       Judgment affirmed.

       PLATT, J., Joins the memorandum.

       GANTMAN, President Judge, Concurs in the result.

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3
  In any event, we note that the pleadings established a prima facie case. In
its counterclaim, DeSimone alleged:

       Defendant did not consent to Plaintiff’s removal of the special
       spinning wheel rims, nor did Defendant consent to Plaintiff’s
       retaining the special spinning wheel rims; Defendant has been
       harmed by Plaintiff’s actions, in that Defendant has lost the
       value of the special spinning wheel rims; [Plaintiff] intentionally
       removed the special spinning wheel rims from the truck and,
       despite repeated demands, failed and refused to return said
       special spinning wheel rims to Defendant.

Defendant’s Answer, New Matter and Counterclaim to Plaintiff’s Amended
Complaint, 2/20/12, at ¶¶ 60-63. In reply to DeSimone’s counterclaim,
Dickerson admitted that he removed the rims. See Plaintiff’s Reply to
Defendant’s New Matter and Counterclaim, 3/12/12, at ¶ 63. Dickerson did
not plead new matter, the heading under which defenses are pleaded in a
reply. See Pa.R.C.P. 1030. Defenses that are not presented by preliminary
objection, answer or reply are waived. See Pa.R.C.P. 1032.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/7/2016




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