J-S13036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JAY V. YUNIK                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

RENEE YUNIK

                            Appellee                  No. 1505 WDA 2014


                Appeal from the Order entered August 12, 2014
               In the Court of Common Pleas of Crawford County
                       Civil Division at No: A.D. 2014-541


BEFORE: BENDER, P.J.E., MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 27, 2015

        Appellant, Jay V. Yunik, appeals pro se from the August 12, 2014

order entered in the Court of Common Pleas of Crawford County, denying his

petition to proceed in forma pauperis and dismissing his case pursuant to

Pa.R.C.P. 240(j)(1).1 Following review, we affirm.



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1
    Pa.R.C.P. 240(j)(1) provides:

        If, simultaneous with the commencement of an action or
        proceeding or the taking of an appeal, a party has filed a petition
        for leave to proceed in forma pauperis, the court prior to acting
        upon the petition may dismiss the action, proceeding or appeal if
        the allegation of poverty is untrue or if it is satisfied that the
        action, proceeding or appeal is frivolous.

Id.
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       In his complaint filed before a Crawford County magisterial district

judge, Appellant sought damages in the amount of $500 based upon the

following claim:

       On or about August of 2009, [Appellee] and her deceased
       husband Bryce Yunik agreed to a verbal contract, wherein they
       would hold [Appellant’s] 18 speed peddle [sic] mountain bike
       until [Appellant] requested said bike. [Appellee] now refuses to
       return [Appellant’s] bike, in violation of Pa.C.S. Section 3921
       theft by unlawful taking. [Appellant] demands return of his bike
       or else value thereof of $500.00.

Complaint, 5/2/14.

       Following the district judge’s entry of judgment in favor of Appellee on

June 20, 2014, Appellant filed a pro se notice of appeal to the Court of

Common Pleas of Crawford County2 and a petition to proceed in forma

pauperis. The trial court dismissed the action by order entered August 12,

2014, in which the trial court explained:

       [T]he [c]ourt has received and reviewed [Appellant’s] Petition to
       Proceed in Forma Pauperis in [his] appeal from the judgment of
       the Magisterial District Judge, and while satisfied [Appellant] is
       indigent, nevertheless notes that this is [the] fourth proceeding
       in which he has sought the return of his “18 speed peddle mount
       bike,” or the value thereof, from his son’s widow, [Appellee].
       The first action, filed at Case No. AD 2012-5, was voluntarily
____________________________________________


2
  The notice of appeal reflects the district judge rendered judgment on June
20, 2014. The Crawford County Common Pleas docket indicates the appeal
was docketed on August 4, 2014, more than 30 days after entry of the
judgment. We cannot ascertain from the record before us when notice of
the judgment was served on Appellant or whether or not the appeal was
timely filed. However, because the trial court did not address the issue and
because we have no information to support a finding the appeal was
untimely filed, we shall proceed under the assumption it was timely filed.



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     dismissed by [Appellant]. He also moved to discontinue the
     second action, filed at Case No. AD 2012-1162, although a
     judgment of non-pros had already been entered for his failure to
     pay the filing fee. The third action, filed at Case No. 2013-98,
     was dismissed for failure to properly serve [Appellee].

     The present action seems primarily intended to harass
     [Appellee], with the multiple items of personal property he
     sought to recover at Case Nos. AD 2013-433 and 2013-1162
     now becoming the objects of individual suits. See Cases Nos.
     AD 2013-433 and AD 2013-593 (Yamaha boat motor); Case No.
     AD 2014-185 (Stihl chainsaw).           [Appellant] contends that
     [Appellee’s] refusal to return the bicycle – useless to him while
     he remains incarcerated – violated Section 3921 of the Criminal
     Code (theft by unlawful taking or disposition).             The mere
     allegation of a theft offense will not support a civil suit.

     Moreover, more than two years have passed since [Appellee]
     allegedly refused to return the bicycle, as [Appellant] made the
     same allegation in his complaint filed on January 4, 2012 at Case
     No. AD 2012-5. An action for specific recovery of personal
     property is barred by the two year statute of limitations. 42
     Pa.C.S. § 5524(3). In addition, no consideration is alleged for
     [Appellee] and her late husband to have orally contracted to
     “hold the [bicycle] until [Appellant] requested said bike.” See,
     e.g., Utility Appliance Corporation v. Kuhns, 393 Pa. 414,
     143 A.2d 35 (1958) (oral contract that lacked consideration was
     unenforceable). Storage fees would offset if not equal the
     bicycle’s claimed value.

     As President Judge Vardaro noted in dismissing [Appellant’s]
     action filed at Case No. AD 2013-433, “not only in this litigation
     involving [Appellee], but in numerous other litigation he has
     continued to burden this [c]ourt with his repetitive filings and at
     some point it must stop.” Order of July 23, 2013, p. 2. We do
     not think that [Appellee] should likewise be burdened with
     further defending against another, apparently time-barred suit
     founded upon an alleged criminal violation having no
     prosecutorial merit.

     The [c]ourt is accordingly satisfied that the appeal from the
     magisterial district judgment is frivolous, and hereby DISMISSES
     the action pursuant to Pa.R.C.P. 240(j)(1).


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Trial Court Order, 8/13/14, at 1-2 (footnotes omitted).

      In his timely appeal to this Court, Appellant raises three issues, which

we have reordered for ease of discussion:

      I.       Did the lower court order violate Appellant’s due process,
               equal protections, and intent of legislature?

      II.      Did the lower court judge misrepresent the truth claiming
               bar of case, due to statute of limitations?

      III.     Was lower     court   judge   order,   by   definition,   legally
               frivolous?

Appellant’s Brief at 1.

      Although Appellant submits that this Court’s scope of review is

“plenary” and our standard of review is “de novo,” id. at iii, this Court has

explained:

      Our review of a decision dismissing an action pursuant to
      Pa.R.C.P. 240(j) is limited to a determination of whether the
      plaintiff’s constitutional rights have been violated and whether
      the trial court abused its discretion or committed an error of law.
      Rule 240 provides for a procedure by which a person who is
      without the financial resources to pay the costs of litigation may
      proceed [in forma pauperis]. The obligation of the trial court
      when a party seeks to proceed under Rule 240 is as follows:

            (j) If, simultaneous with the commencement of an action
            or proceeding or the taking of an appeal, a party has filed
            a petition for leave to proceed in forma pauperis, the court
            prior to acting upon the petition may dismiss the action,
            proceeding or appeal if the allegation of poverty is untrue
            or if it is satisfied that the action, proceeding or appeal is
            frivolous.

      Pa.R.C.P. 240(j). “A frivolous action or proceeding has been
      defined as one that ‘lacks an arguable basis either in law or in
      fact.’” Id. at Note (quoting Neitzke v. Williams, 490 U.S. 319,
      109 S.Ct. 1827, 104 L.Ed.2d 338 (1989)). Under Rule 240(j),

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       an action is frivolous “if, on its face, it does not set forth a valid
       cause of action.” McGriff [v. Vidovich, 699 A.2d 797, 799 (Pa.
       Cmwlth. 1997),] (citing Keller v. Kinsley, 415 Pa. Super. 366,
       609 A.2d 567 (1992)). As we review [appellant’s] complaint for
       validity under Rule 240, we are mindful that a pro se complaint
       should not be dismissed simply because it is not artfully drafted.
       Hill v. Thorne, 430 Pa. Super. 551, 635 A.2d 186 (1993).

Ocasio      v.     Prison       Health         Services,   979    A.2d      352,    354

(Pa. Super. 2009) (some citations omitted).3

       We first consider whether the trial court’s ruling violated any of

Appellant’s constitutional rights, including due process or equal protection as

Appellant suggests in his first issue.          We find no violation.    The trial court

determined Appellant’s action was frivolous, i.e., “on its face, it does not set

forth a valid cause of action.”        Ocasio, 979 A.2d at 354 (citation omitted).

The trial court offered three grounds for that finding: basing a civil suit on a

criminal offense; failing to file within the two-year statute of limitations for

recovery of personal property; and asserting breach of an oral contract not

supported by consideration.         Any one of those three grounds supports the

trial court’s conclusion that Appellant failed to set forth a valid cause of action

and, therefore, his action is frivolous.            “No litigant, indigent prisoner or

otherwise, is permitted to prosecute a lawsuit which fails to state a claim

upon which relief may be granted. The United States Supreme Court stated,

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3
  Pa.R.C.P. 240(j) was amended in 2012, designating the text of former
subsection (j) as (j)(1) and adding subsection (j)(2) for cases initiated by
writ of summons.



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‘[d]epriving someone of a frivolous claim . . . deprives him of nothing at all,

except perhaps the punishment of . . . sanctions.’” Jae v. Good, 946 A.2d

802, 809 n.14 (Pa. Cmwlth. 2008) (quoting Lewis v. Casey, 518 U.S. 343,

353 n.3 (1996)). Appellant has not been deprived of any constitutional rights

by virtue of the trial court’s dismissal of his frivolous claims. Appellant’s first

issue fails.

      Continuing with our review of the order in accordance with Ocasio, we

likewise conclude the trial court neither committed error of law nor abused

its discretion in dismissing Appellant’s case.      Appellant’s civil complaint

sought return of his mountain bike or, alternatively, damages in the amount

of $500 for an alleged violation of a criminal statute, i.e., 18 Pa.C.S.A.

§ 3921 (theft by unlawful taking).      Appellant acknowledges that Appellee

and her late husband, Appellant’s son, have possessed the bike since shortly

after Appellant’s divorce settlement in September 2009. Appellant’s Brief at

2. Appellant asserts that “[o]n or about October 1, 2011, Appellant[’s] son,

Bryce, died apparently of a suicide, per state police, contradicted by

compelling evidence that [Appellee], more-in-likely [sic], contracted out the

murder of Bryce.” Id. Appellant requested return of his bike shortly of his

son’s death but Appellee “nefariously refused to return” it. Id.

      The trial court recognized the mountain bike in question was also the

subject of an action filed by Appellant against Appellee in January of 2012,

more than two years prior to the filing of the action giving rise to this


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appeal. Trial Court Order, 8/13/14, at 2. Appellant admits he filed various

actions, including the January 2012 suit, in his attempt to obtain possession

of the bike.    Appellant’s Brief at 2.        Because his cause of action arose no

later than January 2012, his current claim—filed on May 2, 2014—was

barred by the two-year statute of limitations, 42 Pa.C.S.A. § 5524(3), and

the trial court did not commit error of law in so finding.4

       Further, the trial court concluded that no consideration was alleged to

support a claim for breach of an oral contract. Trial Court Order, 8/12/14, at

2 (citing Utility Appliance for the proposition that oral contract that lacked

consideration was unenforceable)). As this Court has recognized:

       “A cause of action for breach of contract must be established by
       pleading (1) the existence of a contract, including its essential
       terms, (2) a breach of a duty imposed by the contract and (3)
       resultant damages.” Corestates Bank, N.A. v. Cutillo, 723
       A.2d 1053, 1058 (Pa. Super. 1999). While not every term of a
       contract must be stated in complete detail, every element must
       be specifically pleaded. Id. at 1058. Clarity is particularly
       important where an oral contract is alleged. Snaith v. Snaith,
       422 A.2d 1379, 1382 (Pa. Super. 1980).

                                       ***


____________________________________________


4
  In his second issue, Appellant suggests the trial court “misrepresented the
truth” and is attempting to mislead this Court by finding the statute of
limitations “began with Case AD 2012-5,” filed on January 4, 2012.
Appellant’s Brief at 4. As explained herein, even though the exact date of
the “refusal” to return the bike is unknown, it clearly occurred no later than
January 4, 2012 when Appellant brought suit based upon that refusal. More
than two years elapsed before the instant action was filed on May 2, 2014.
Appellant’s second issue fails for lack of merit.



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       It is axiomatic that consideration is “an essential element of an
       enforceable contract.” Stelmack v. Glen Alden Coal Co., 14
       A.2d 127, 128 (Pa. 1940). See also Weavertown Transport
       Leasing, Inc. v. Moran, 834 A.2d 1169, 1172 (Pa. Super.
       2003) (stating, “[a] contract is formed when the parties to it (1)
       reach a mutual understanding, (2) exchange consideration and
       (3) delineate the terms of their bargain with sufficient clarity.”).
       “Consideration consists of a benefit to the promisor or a
       detriment to the promiser. Weavertown, 834 A.2d at 1172
       (citing Stelmack). “Consideration must actually be bargained
       for as the exchange for the promise.” Stelmack, 14 A.2d at
       129.

Pennsy Supply, Inc. v. Am. Ash Recycling Corp. of Pa., 895 A.2d 595,

600 (Pa. Super. 2006) (parallel citations omitted). We find no error in the

trial court’s conclusion that any alleged contract failed for lack of

consideration.

       Because Appellant’s claim is barred by the statute of limitations and

because Appellant does not suggest any consideration to support an oral

contract, Appellant’s claims lack any arguable basis either in law or in fact

and, on their face, fail to set forth a valid cause of action. Having concluded

Appellant’s constitutional rights have not been violated and because the trial

court neither committed error of law nor abused its discretion, we find that

the trial court appropriately dismissed Appellant’s action as frivolous

pursuant to Pa.R.C.P. 240(j)(1). Therefore, we affirm.

       Order affirmed.5

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5
  Although not specifically addressed herein, we reject as meritless
Appellant’s third issue, contending that the trial court’s order was “by
(Footnote Continued Next Page)


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2015




                       _______________________
(Footnote Continued)

definition, frivolous.” Appellant’s Brief at 1. Not only has Appellant failed to
support his argument with any applicable case law, but also we have stated
herein that the trial court’s order appropriately dismissed Appellant’s action.



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