J-A19035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GENE C. BENCKINI T/A BENCKINI                     IN THE SUPERIOR COURT OF
NURSERIES                                               PENNSYLVANIA

                             Appellant

                      v.

CHARLES GRANT, JR. T/A GRANTS AUTO
SALVAGE

                                                      No. 3268 EDA 2015


                 Appeal from the Order Entered October 8, 2015
          in the Court of Common Pleas of Lehigh County Civil Division
                             at No(s): 2014-C-3970

BEFORE: FORD ELLIOTT, P.J.E., OTT, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                  FILED OCTOBER 19, 2016

        Pro se Appellant, Gene C. Benckini,1 trading as Benckini Nurseries,

appeals from the order granting the motion for summary judgment filed by

Appellee, Charles Grant, Jr., trading as Grants Auto Salvage.         Appellant

contends that he timely filed his 2014 complaint within the two-year statute

of limitations for conversion that allegedly occurred in 2007. We affirm.

        We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 10/7/15, at 2-4; see also Benckini v. Hawk,

654 F. Supp. 2d 310, 316-19 (E.D. Pa. 2009) (summarizing exhaustive


*
    Former Justice specially assigned to the Superior Court.
1
  As one court noted, Appellant is a frequent pro se litigant. See Benckini
v. Hawk, No. 07-3580, 2009 WL 1078138 (E.D. Pa. Apr. 21, 2009).
J-A19035-16


history of this case); Benckini v. Lichtenwalner, No. 2956 EDA 2012,

2013 WL 11253383 (Pa. Super. Sept. 26, 2013) (joined by Fitzgerald, J.)

(unpublished memorandum) (same). Appellant timely appealed and timely

filed a court-ordered Pa.R.A.P. 1925(b) statement, which spanned twenty-

three paragraphs over six pages. The trial court declined to find waiver as it

could discern Appellant’s issue.

      In support of his issue, Appellant asserts that the thefts that form the

basis of his complaint occurred in 2012 and 2013. Appellant thus reasons

that his complaint, filed on December 9, 2014, fell within the two-year

statute of limitations. Appellant did not support his allegations with citations

to the record.

            Pennsylvania law provides that summary judgment may
         be granted only in those cases in which the record clearly
         shows that no genuine issues of material fact exist and
         that the moving party is entitled to judgment as a matter
         of law. The moving party has the burden of proving that
         no genuine issues of material fact exist. In determining
         whether to grant summary judgment, the trial court must
         view the record in the light most favorable to the
         nonmoving party and must resolve all doubts as to the
         existence of a genuine issue of material fact against the
         moving party. Thus, summary judgment is proper only
         when the uncontroverted allegations in the pleadings,
         depositions, answers to interrogatories, admissions of
         record, and submitted affidavits demonstrate that no
         genuine issue of material fact exists, and that the moving
         party is entitled to judgment as a matter of law. In sum,
         only when the facts are so clear that reasonable minds
         cannot differ, may a trial court properly enter summary
         judgment. With regard to questions of law, an appellate
         court’s scope of review is plenary. The Superior Court will
         reverse a grant of summary judgment only if the trial court
         has committed an error of law or abused its discretion.


                                     -2-
J-A19035-16



Charlie v. Erie Ins. Exchange, 100 A.3d 244, 250 (Pa. Super. 2014)

(alteration and citation omitted).   “Generally, for purposes of applying the

statute of limitations, a claim accrues when the plaintiff is injured.”

Rancosky v. Washington Nat’l Ins. Co., 130 A.3d 79, 99 (Pa. Super.

2015) (citation omitted). “Whether the statute of limitations has run on a

claim is usually a question of law for the judge; however, at times, a factual

determination by the jury may be required.” Marble v. Fred Hill & Son,

624 A.2d 190, 192 (Pa. Super. 1993) (citation omitted). Finally, “[a]lthough

this Court is willing to liberally construe materials filed by a pro se litigant,

pro se status confers no special benefit upon the appellant.” In re Ullman,

995 A.2d 1207, 1211-12 (Pa. Super. 2010) (citation omitted).

      Instantly, after careful review of the parties’ briefs (including a liberal

construction of Appellant’s pro se brief, see id.), the certified record, and

the trial court’s decision, we affirm on the basis of the trial court’s reasoning.

See Trial Ct. Op. at 5-7 (holding (1) Appellant failed to substantiate

allegation that Appellee allegedly misappropriated Appellant’s property

between 2012 and 2013; (2) Appellee’s only interaction with Appellant was

in 2007, seven years before Appellant filed the instant complaint; and (3)

Appellant’s claims are time-barred). Accordingly, having discerned no error

of law, we affirm the order below.

      Order affirmed.




                                      -3-
J-A19035-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/19/2016




                          -4-
                                                                                     Circulated 09/28/2016
                                                                                                09/28/2016 04:09 PM

  FILED 11/10/2015    1:    ;5 PM,Clerk óf Judicial Records, Civ           vision, Lehigh County, PA
                                                    2014 -C -3970           Is/I S




    IN THE COURT OF' COMMON PL EAS OF LEHIGH COUNTY, PENNSYLVANIA
                                         CVIL DIVISION

GENE C BENCKINI, TRADING AS
BENCKINI NURSERIES,
               Appellant,                                File No, 2014 -C -3970
    -VS-
CHARLES GRANT, JR., TRADING Ali`
GRANTS AUTO SALVAGE
              Appellee

                                                  ORDER

        AND NOW, this /4)        y   of N(   1,ember, 2015,

        IT APPEARING Appellant has tiled a Concise Statement of Matters Complained of on

 Appeal on November 9, 2015,

        IT FURTHER APPEARING             t t'c   accompanying Memorandum Opinion satisfies the

 requirements of Pa,R.AP. 1925(a),

        IT IS ORDERED the Clerk of ;Hurts Civil Division shall transmit the record in the

 above -captioned case to the Superior Court forthwith.

                                                         By the Court:




                                                         Douglaf`G. Reichlcy,   J.




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                                                    2014 -C -3970           /s /I S




   IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNNSYLVANIA
                                         (VIL DIVISION

GENE C BENCKINI, TRADING AS
BENCKINI NURSERIES,
             Appellant,                               File No. 2014 -C -3970
      - VS -
CHARLES GRANT, JR., TRADING                  S
GRANTS AUTO SALVAGE
             Appellee
                                                                                 November 12, 2015


                                                                             Douglas G. Reichley, J.
                                            1925 (a) Opinion

       Gene C. Benkini, Appellant, is a ¡pealing from the order entered October 8, 2015 granting

Appellee's Motion for Summary Judgm "nt on the basis that the within litigation is time -barred

and Appellant's claims were precluded by the applicable statute of limitations. For the reasons

set forth herein, the Court respecttúlly reommends that its order granting Appellee's Motion for

Summary Judgment be affirmed.

                              Factual and Procedural Background

       In 1996, Appellant entered into   in oral lease agreement for 6.5 acres of land owned by

Lloyd Liehtenwalner for the purpose of growing trees for nursery stock. In 2006, Lichtenwalner

filed a complaint in ejectment, trespass,,,lnd assumpsit. He alleged the lease between himself and

Appellant had been terminated. A Magisterial District Judge entered judgment in favor of

Liehtenwalner, and Appellant appealed 'to the Lehigh County Court of Common Pleas.

       On appeal, Appellant alleged tinil over $250,000 of inventory remained on the leased

premises. Appellant requested damages for that property. The case proceeded to arbitration, and

the arbitrators entered an award in favor   of Lichtenwalner on April   17, 2006. Appellant did not


file an appeal or otherwise seek to challenge the arbitration award.

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                                                    2014 -C -3970                   /s /I S



        On September 6, 2007, Appellar (filed a writ           of summons   in the Court   of Common Pleas
                                             i


of Lehigh County, docketed   at 2007 -C -3155, against the Lichtenwalners. There was not any

additional action in that case until the Honorable Carol K. McGinley sent a purge notice to

Appellant pursuant to Pa.R.C.P. 230.2        1.2010.   Appellant filed a pro se complaint on July 9,

2012, and after preliminary objections       ¿re filed, he filed an amended complaint on August 22,

2012. The amended complaint alleged b each of contract and unjust enrichment stemming from

the termination of the 1996 lease that wt    t   the subject   of the 2006 litigation. The Lichtenwalners

filed new preliminary objections to the Mended complaint. Judge McGinley sustained those

preliminary objections on September 2412012 and dismissed the matter entirely on the basis of

resjudicata. Appellant appealed and the Superior Court affirmed the dismissal on September 26,

2013 because his claims had previously been resolved through arbitration.

       The instant action was initiated y Appellant filing a complaint on December 9, 2014.
                                         1




The original complaint named both Cha .les Grant, Jr. and Lloyd Lichtenwalner as Appellees.

Appellant filed an amended complaint on January 14, 2015.

       The complaints averred that the lamed Appellees converted trees and equipment

belonging to Appellant front Lichtenwa1íter's property stemming from the 1996 agreement.

       Both Appellees filed preliminarl1;objections in February of 2015. Lichtenwalner's

preliminary objections asserted that this,action, like the prior 2007 action, was barred by the

doctrine of res jndicala. On April 23, 2015, the Court entered an order sustaining both

Appellees' preliminary objections. Liedlenwalner was stricken as            a   named Appellee with

prejudice based on the Court's finding t rat claims against him in relation to the 1996 lease are

barred by res,jta/icata, consistent with Judge McGinley's prior decision which was upheld by the

Superior Court. Appellee Grant's preliminary objections were sustained as well, but the Court


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                                                         2014 -C -3970         /s /I S



afforded Appellant another opportunity {6 properly plead his causes of action against Appellee

Grant.

         On May 5, 2015, Appellant filed     Ét   Second Amended Complaint. Appellee Grant again

filed preliminary objections raising teelmieai deficiencies in the complaint, The Court sustained

those objections on June 17, 2015. Appellant filed a Third Amended Complaint on June 29,

2015, and Appellee filed an Answer on Jidy 22, 2015.

         The "third Amended Complaint' ?;salient factual averments are that Appellee Grant

removed vehicles and trees from Lichte'üvalner's property which belonged to Appellant. The

complaint set forth that the removal occuíred sometime between 2012 and 2013. Appellant

averred that Appellee Grant, through the,operation of his business Grant's Auto Salvage,

wrongfully removed the subject equipment and trees.

         On September   1,   2015, Appelle filed a motion for summary judgment. Appellant filed

his own motion for summary judgment on September 16, 2015, and the Court heard oral

argument on the motions on October 6, 015.

         On October 8, 2015, the Court ci tered an order granting Appellee's summary judgment

motion and dismissing the case with                  on the grounds that the litigation was time -barred

by the statute of limitations.

         On October 28, 2015, Appellant tiled a Notice      of Appeal. The Court directed hint to file a

Concise Statement by Order dated October 30, 2015. Appellant filed his Concise Statement on

November 9, 2015.

         This opinion follows.




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                                                         2014 -C -3970                       /s /I S



                                                        Discussion

        Appellant is proceeding pro sell this appeal. His concise statement does not satisfy the

requirements of Pa.R,A.P. 1925(b) beca ise              it   instead consists of a series of numbered paragraphs

detailing Appellant's perspective on the facts and circumstances of the case. However,

recognizing Appellant's status as a pro ' litigant, the salient issue Appellant is attempting to
                                            .




raise is whether the Court erred in grants g summary judgment on the basis of the statute of

limitations. Related to that, Appellant further asserts that the evidence upon which the Court's

order was based was manufactured and 'tilsified.

       Any party may move for summa y judgment whenever there is no genuine issue of any

material fact as to a necessary element of the cause of action or defense which could be

established by additional discovery or es0ert report. Pa.R.C.P. 1035.2. In order to overcome a

motion for summary judgment, the "nos ;moving party must adduce sufficient evidence on an
                                                -




issue essential to its case and on which if bears the burden of proof such that a jury could return a

verdict favorable to the non -moving pal            '   Ranch       v.   Mike -Mayer, 783 A.2d 815, 824 (Pa.

Super. 2001). On appeal from an order luanting summary judgment, the appellate court's scope

of review   is plenary, and   courts "will reverse           a   grant of summary judgment only if the trial court

has committed an error of law or abused `its discretion." Harahan                   v.   AC & S, Inc., 816 A.2d 296,

297 (Pa. Super. 2003).

       Appellee's motion for summary judgment asserted that this action is barred by the

applicable statute of limitations. Because Appellant's complaint alleged Appellee wrongfully

took Appellant's personal property, his Oaims are subject to a two -year statute of limitations. 42

Pa.C.S.A.   §   5524.




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                                                       2014 -C -3970                     /s /I S



        Appellee owns and operates a sa .'or's business. Salvors are subject to certain specified

statutory requirements in Pennsylvania. 67 Pa. Code            §   253.1 et seq. Where a police department

requests that a salvor tow an abandoned i'ehicle, salvors are expressly precluded from refusing

that request. 67 Pa. Code   §   253.5(a). Th _ire is also documentation that salvors arc required to

provide to the police documenting reler nit information. Id.            §   253.5(b).

        Appellant's Third Amended                        in this case asserted that      the equipment and trees

were taken between 2012 and 2013. (Thnd Amended Complaint, 19.) f lowever, in the prior

litigation with Mr. Lichtenwalner, Appc !ant alleged that the equipment and trees were sold

between January of 2006 and November Of 2009.. (Amended Complaint, 2007-C-3155,1163.) In

this case, Appellant did not offer any ev tlentiary support regarding the timing of the purported

taking of his equipment and trees.

        By contrast, Appellee presented        kin   exhibit in his motion for summary judgment in the

form of a notarized affidavit from Robert E. Coyle, the current Police Chief for the Upper

Saueon Township Police Department.         I   ;Chief Coyle's affidavit, he indicated that on May 4,

2007, Lloyd Lichtenwalner reported thnj the subject vehicles were abandoned. An officer

responded to the scene and subsequent)) directed Appellee Grant to remove the vehicles which

were determined to be abandoned. The N ehicles were removed on May 18, 2007. Chief Coyle's

affidavit includes an incident report fro!       May 4, 2007 as an exhibit, detailing the information

about the vehicles that Appellee removed from Lichtenwalner's property.

       In response to Appellee's exhibi', and as an issue in the instant appeal, Appellant asserted

Chief Coyle lied in his affidavit and    ma> iufactured     the incident report. Appellant did not offer

any evidence in support of his allegations. Further, Appellant did not offer any evidence to

establish that Appellee Grant salvaged equipment or trees Appellant owned at any time other



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                                                         2014 -C -3970      /s /I S



than 2007. His blanket assertions about ichicles being removed between 2012 and 2013 were

wholly unsupported.

            Consequently, the sole evidence of record indicates that the only interaction Appellee

Grant had with Appellant's property occpiurred in May of 2007. Appellant failed to offer any

additional evidentiary support linking A Spellee to ally purported incidents between 2012 and

2013. Accordingly, the Court found that the instant litigation stems from the only incident of

record: Appellee's removal of Appellan4s equipment from Liehtenwalncr's property in May of

2007. Because the statute of limitationsffrr such claims is two years and the instant litigation was

not initiated until December of 2014, the Court properly held that Appellant's claims against

Appellee Grant were statutorily time -barred.

                                               Conclusion

        Because the only evidence of rect?rd indicated that the incident in which Appellee Grant

was involved relating to the removal of (ppellant's property occurred in May of 2007, and

because Appellant's complaint in this erj8e was not filed until December of 2014, the instant

action is time -barred by the applicable s {lute of limitations. Accordingly, the Court properly

granted Appellee's motion for summary Judgment and the Court respectfully recommends that

its order   of October   8, 2015 be affirmed

                                                         By the Court:




                                                        Douglas G. Reichlcy, J.




                                                                                                     7
         IN THE COURT OF COMMON PLEAS OF LEHIGH COUNTY, PENNSYLVANIA
                                         CIVIL COURT DIVISION




                                                                                                   ri
                                      Document Distribution List

File No.: 2014 -C -3970                                                               11/10/2015


  Gene C Benekini                                 612 Locust St
                                                  Coopersburg PA 18036

  Stephen A Shelly, Esq                           525 West Broad Street
                                                  Quakertown PA 18951



                                                236 NOTICE

          Pursuant to Pa.R.C.P.   §   236, notice is hereby given that an order, decree, or judgment in

the above captioned matter has been entered.



                                                                          Andrea E. Naugle
                                                                          Clerk of Judicial Records




CV i5b
