J-S10013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH P. PROSCENO, III,                         IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

DEVRY UNIVERSITY, FORT
WASHINGTON, PENNSYLVANIA CAMPUS

                            Appellee                  No. 843 EDA 2014


                Appeal from the Order Entered January 21, 2014
             in the Court of Common Pleas of Montgomery County
                        Civil Division at No.: 2013-12077


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

MEMORANDUM BY PLATT, J.:                             FILED MARCH 11, 2015

        Appellant, Joseph P. Prosceno, III, appeals pro se from the order of

January 21, 2014, which granted the motion for summary judgment of

Appellee, DeVry University, Fort Washington, Pennsylvania Campus, in this

breach of contract case. For the reasons discussed below, we affirm.

        We take the underlying facts and procedural history in this matter

from the trial court’s opinion of October 3, 2014.

              Appellant enrolled at the DeVry University, Fort
        Washington, Pennsylvania Campus on July 7, 2008, and pursued
        a Bachelor of Science degree in Game Simulation Programming
        (“GSP”). The GSP program required that Appellant successfully
        complete a two-part senior project in which Appellant was to
        create a working video game or simulation application to
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S10013-15


     demonstrate his knowledge of software development. The first
     part of Appellant’s senior project was course GSP494 Senior
     Project I, for which Appellant and his partner needed to upload
     and present a working prototype/proof of concept of the game
     design (“Alpha Version”) to the class, the professor and
     potentially to advisors. Appellant and his partner were unable to
     demonstrate the prototype/proof of concept of their game design
     during their presentation. Ultimately, the professor assigned a
     score of 24/100 for the Alpha Version demonstration and an
     overall grade of B for course GSP494. Appellant disagreed with
     his grade and contacted the professor requesting a review. The
     professor declined to change Appellant’s grade for the course.

                                   *     *   *

            Appellant, acting pro se, filed a complaint on May 20,
     2013, alleging four counts of breach of contract. In Count I,
     Appellant alleges that the professor “breached the obligations
     listed under [Appellee’s] Code of Conduct and Ethics’ accurate
     books and records policy by deliberat[ely] giving [Appellant] a
     GSP494 Alpha Version Application assignment grade of 24/100
     which resulted in [Appellant’s] GSP494 Final Course Grade
     resulting in 899/1000, [‘B’], rather than awarding [Appellant] his
     GSP494 Alpha Version Application assignment grade after
     properly reviewing the content of [Appellant’s] submitted
     GSP494 Alpha Version Application game file[.]” In Count II,
     Appellant alleges that [Appellee’s] faculty, dean and the head of
     the IT department “breached the obligations listed under
     [Appellee’s] Mission and Purpose Statement by refusing
     [Appellant's] request to upgrade the UDK software already
     installed on the computers located within DeVry's GSP Lab[.]” In
     Count III, Appellant alleges that [Appellee’s] registrar “breached
     the obligations included under [Appellee’s] Employee Code of
     Conduct and Ethics accurate books and records policy by
     miscalculating [Appellant’s] Fall 2008 Term GPA and Summer
     2009 Term GPA[.]”        In Count IV, Appellant alleges “that
     [Appellee’s] Student Housing Department breached the terms of
     [Appellee’s]     Student     Housing     Agreement       by    not
     refunding/returning to him his Initial Reservation Fee/Security
     Deposit.”

                                   *     *   *




                                   -2-
J-S10013-15


             On December 12, 2013, Appellee filed a motion for
       summary judgment. . . . Appellant filed his answer in opposition
       to Appellee’s motion on January 2, 2014.         In his answer,
       Appellant admits that [Appellee’s] Code of Conduct and its
       Mission Statement, documents upon which he relies for his
       breach of contract claims, are contracts to which he is not a
       party. Appellant did not provide any deposition testimony or
       sworn affidavits based upon personal knowledge to the court,
       nor did Appellant request additional time to conduct discovery.

(Trial Court Opinion, 10/03/14, at 1-5, 7-8) (record citations and footnotes

omitted).

       On January 21, 2014, the trial court granted the motion of Appellee for

summary judgment. The instant, timely appeal followed.1

       On appeal, Appellant raises the following questions for our review.

       (5.1.1) Claim 1 — Question 1

       Did Professor Roberts deny the Appellant the option rightfully
       given to the Appellant to use currently accessible technologies
       from within the Appellant’s program of study, or determine to
       apply other technologies of the Appellant’s choosing by refusing
       to allow the Appellant to demonstrate the Appellant’s GSP494
       Alpha Version Application during the Appellant’s GSP494 Alpha
       Presentation with use of the Appellant’s HP dv7 laptop with or
       without being connection to a classroom projector?

       (5.1.2) Claim 1 - Question 2

       Did Professor Roberts admit to submitting/deliberately giving an
       assignment grade for the Appellant’s GSP494 Alpha Version
       Application without having read/reviewed the contents of the
       Appellant’s submitted GSP494 Alpha Version Application, which
____________________________________________


1
  On February 18, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b).
Appellant filed a timely statement on March 5, 2014. See id. The trial court
issued an opinion on October 3, 2014. See Pa.R.A.P. 1925(a).



                                           -3-
J-S10013-15


     negatively impacted the Appellant’s GSP494 Final Grade and GSP
     Degree Program Spring 2011 Term GPA and Cumulative GPA?

     (5.1.3) Claim 1 - Question 3

     Did Professor Roberts make a false and/or misleading entry in
     the Appellant’s grade book for the Appellant’s GSP494 Alpha
     Version Application assignment grade[,] which negatively
     impacted the Appellant’s GSP494 Final Grade (and GSP Degree
     Program Spring 2011 Term GPA and Cumulative GPA)?

     (5.2.1) Claim 2 - Question 1

     Would it have been possible to download and install an up-to-
     date and compatible version of the UDK software onto at least
     one of DeVry’s GSP Lab computers completely free with no
     licensing issues that would have hindered DeVry from flawlessly
     downloading and installing the up-to-date and compatible
     version of the UDK software?

     (5.2.2) Claim 2 - Question 2

     Did DeVry fail to supply the Appellant with compatible up-to-date
     and market-driven software as requested by the Appellant in
     order for the Appellant to work on and demonstrate the
     Appellant’s GSP497 Beta Version Application using DeVry’s
     Computers?

     (5.2.3) Claim - 2 Question 3

     Did Professor Roberts, Dean Suganthan, and/or the Head of the
     IT Department’s actions directly cause the Appellant to purchase
     an ASUS G73sw laptop in order to demonstrate the Appellant’s
     GSP497 Beta Version Application during the Appellant’s GSP497
     Final Presentation?

     (5.3.1) Claim 4 - Question 1

     Was/Is the Appellant’s Student Housing Initial Reservation
     Fee/Deposit Refundable/Returnable as stated as being in DeVry’s
     2007-2008 Student Handbook?

     (5.3.2) Claim 4 - Question 2


                                   -4-
J-S10013-15


      Has the Appellee brought forth and provided evidence showing
      that the Appellant did not pay any of the Appellant’s DeVry
      Student Housing Rent Term Payments in Full?

      (5.3.3) Claim 4 - Question 3

      Has the Appellee brought forth and provided evidence showing
      the cause of and proving the legitimacy of the $100 charge to
      the Appellant’s Student Housing Account?

      (5.3.4) Claim 4 - Question 4

      Was/[i]s the Appellant entitled to any interest that accumulated
      on the Appellant’s $250 Student Housing Initial Reservation
      Fee/Deposit over the two(2)-year period that the Appellant
      stayed in housing contracting/leased by DeVry?

(Appellant’s Brief, at 6-9) (italics and quotation marks omitted).

      Appellant appeals from the trial court’s grant of summary judgment to

Appellee.   Our scope and standard of review are settled.

            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 non-moving 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


                                     -5-
J-S10013-15


        of law or abused its discretion. Judicial discretion requires action
        in conformity with law based on the facts and circumstances
        before the trial court after hearing and consideration.

Cresswell v. Pa. Nat’l Mut. Cas. Ins. Co., 820 A.2d 172, 177 (Pa. Super.

2003) (citation and emphasis omitted).

        Prior to reaching the merits of Appellant’s claims, we must determine if

they are properly before us. For the reasons discussed below, we find that

Appellant has not properly preserved any issues for our review.                See

Commonwealth v. Wholaver, 903 A.2d 1178, 1184 (Pa. 2006), cert.

denied, 549 U.S. 1171 (2007) (holding that appellate courts may sua sponte

determine whether issues have been properly preserved on appeal). In its

Rule 1925(a) opinion, the trial court stated:

              . . . Appellant’s concise statement does not specify what
        genuine issues of material fact exist or what evidence of record
        before the trial court supported those facts. Moreover, any
        evidence not properly presented to the court prior to the entry of
        a final order may not be considered on appeal. As a result, this
        court is hampered in its review of Appellant’s claims.

                                       *       *   *

              In the case sub judice, Appellant’s first four Rule 1925(b)
        issues do not assert a sufficiently particularized argument to
        allow meaningful review. Furthermore, Appellant’s concise
        statement refers to evidence and issues not previously
        considered by the trial court. Accordingly, these issues are
        waived.

(Trial Ct. Op., at 11-12, 14).2

____________________________________________


2
    Appellant’s Rule 1925(b) statement states:
(Footnote Continued Next Page)


                                           -6-
J-S10013-15


                       _______________________
(Footnote Continued)


      [1.] Due to the Appellant’s lack of legal experience and
      knowledge of the Pennsylvania Rules of Civil Procedure, the
      Appellant’s previously filed Affidavits for Exhibits of Evidence
      contained a Verification instead of being properly notarized, and
      thus the Appellant’s submitted Exhibits of Evidence could not be
      considered in Court. However, genuine issues of material fact
      that are essential to the causes of action of the Appellant’s
      Complaint and the Appellant’s Opposition to the Appellee’s
      Motion for Summary Judgment do in fact exist, and shall be filed
      and served in the Reproduced Record as Exhibits A-N along with
      a properly notarized Affidavit in accordance with 052 Pa. Code §
      1.36., so that the Exhibits may now be considered in Court.
      Thus, Summary Judgment in favor of the moving party is not
      appropriate.

      [2.] Though not previously considered in Court due to the
      absence of a properly notarized Affidavit, the Appellant has in
      fact produced evidence of facts essential to the causes of action
      of the Appellant’s Complaint and the Appellant’s Opposition to
      the Appellee’s Motion for Summary Judgment, which shall be
      filed and served in the Reproduced Record as Exhibits A-N along
      with a properly notarized Affidavit 052 Pa. Code § 1.36., so that
      the Exhibits may now be considered in Court. Thus, Summary
      Judgment in favor of the moving party was and is not proper in
      this case.

      [3.] Other than relying on the Appellant’s Affidavits not
      previously being notarized in accordance with 052 Pa. Code §
      1.36. due to the Appellant’s lack of legal experience and
      knowledge of the Pennsylvania Rules of Civil Procedure, the
      moving party did not and has not produced genuine issues of
      material fact establishing the complete absence of genuine
      issues of material fact that are essential to the causes of action
      of the Appellant’s Complaint and the Appellant’s Opposition to
      the Appellee’s Motion for Summary Judgment.

      [4.] The non-moving party of the Motion (Appellant) has
      produced evidence of facts demonstrating genuine issues for
      trial, which shall be filed and served with the Brief for the
      Appellant in the Reproduced Record as Exhibits A-N along with a
(Footnote Continued Next Page)


                                            -7-
J-S10013-15


      We agree with the trial court that Appellant waived his first four

claims.   See Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super.

2011), appeal denied, 32 A.3d 1275 (Pa. 2011) (stating that where concise

statement is too vague, court may find waiver). Because Appellant failed to

specify any errors made by the trial court, other than generally stating that

the court erred in granting summary judgment, it was unable to address any

of the first four issues. Accordingly, Appellant has waived his claims. See

Commonwealth v. Hernandez, 39 A.3d 406, 411 (Pa. Super. 2012),

appeal denied, 63 A.3d 1244 (Pa. 2013) (waiving claim where Appellant

failed to specify error alleged); see also Hansley, supra at 415.

      While Appellant’s fifth claim is reasonably specific, the first time that

he claimed that there was a violation of the Landlord and Tenant Act of

1951, was in his Rule 1925(b) statement.          (See Rule 1925(b) Statement,

3/05/14, at 4; Trial Ct. Op., at 17). An Appellant cannot raise an issue for
                       _______________________
(Footnote Continued)

      properly notarized Affidavit 052 Pa. Code § 1.36., so that the
      Exhibits may now be considered in Court.

      [5]. In addition to the evidence produced by the Appellant not
      being considered in Court due to the absence of a properly
      notarized Affidavit, sections 250.511c and 250.512 of The
      Landlord and Tenant Act of 1951 were overlooked, both of which
      support Claim 4 of the Appellant’s Complaint and the Appellant’s
      Opposition to the Appellee’s Motion for Summary Judgment
      regarding Claim 4 of the Appellant’s Complaint.

(Rule 1925(b) Statement, 3/05/14, at 2-4).




                                            -8-
J-S10013-15


the first time in a Rule 1925(b) statement.            See Commonwealth v.

Coleman, 19 A.3d 1111, 1118 (Pa. Super. 2011) (issues raised for first time

in Rule 1925(b) Statement are waived).           Thus, Appellant waived his final

issue as well.

       Moreover, although Appellant raised five issues in his Rule 1925(b)

statement, in his statement of the questions involved he raises ten issues,

none of which he included in his Rule 1925(b) statement.              (See Rule

1925(b) Statement, 3/05/14, at 2-4; Appellant’s Brief, at 6-9). As amended

in 2007, Rule 1925 provides that issues that are not included in the Rule

1925(b) statement or raised in accordance with Rule 1925(b)(4) are waived.

See Pa.R.A.P. 1925(b)(4)(vii); see also Commonwealth v. Lord, 719 A.2d

306, 308 (Pa. 1998), superseded by rule on other grounds as stated in

Commonwealth v. Burton, 973 A.2d 428, 430 (Pa. Super. 2009).

Because of this, the trial court did not address any of the issues raised on

appeal in its Rule 1925(a) opinion. (See Trial Ct. Op., at 1-18). Therefore,

because Appellant failed to raise any of the issues raised in his pro se brief

in his Rule 1925(b) statement, he waived all issues on appeal.3

____________________________________________


3
  Furthermore, we note that Appellant’s brief utterly fails to comply with the
rules of appellate procedure.        For example, Appellant’s statement of
jurisdiction does not comply with Pennsylvania Rule of Appellate Procedure
2114. (See Appellant’s Brief, at 3). His statements of the scope and
standard of review are incorrect. (See id. at 6). His statement of the
questions involved is in violation of Pennsylvania Rule of Appellate Procedure
2116(a). (See id. at 6-9). His statement of the case does not comply with
(Footnote Continued Next Page)


                                           -9-
J-S10013-15


      Thus, for the reasons discussed above, we affirm the grant of

summary judgment in this matter.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/11/2015




                       _______________________
(Footnote Continued)

Pennsylvania Rule of Appellate Procedure 2117(a) and (b). (See id. at 9-
13). Appellant includes a section entitled “Brief Statement of Order Under
Review,” which is not contemplated by the rules of appellate procedure.
(See id. at 13-14). Further, his argument section is completely devoid of
citation either to the record or to relevant legal authority in violation of
Pennsylvania Rule of Appellate Procedure 2119.             (See id. at 15-25).
Appellant’s brief is essentially a repetitive narrative statement of his reasons
for believing that Appellee breached its contract. It is devoid of any legal
support other than boilerplate quotations on the standard of review for
summary judgment. Thus, the defects in Appellant’s brief are significant
and had he preserved any issues for appeal would have substantially
encumbered our appellate review. See Pennsylvania Rule of Appellate
Procedure 2101 (“if the defects are in the brief or reproduced record of the
appellant and are substantial, the appeal or other matter may be quashed or
dismissed.”). Thus, we would have been constrained to quash the appeal
because Appellant’s brief is defective to the point that it constitutes a
violation of Pennsylvania Rule of Appellate Procedure 2101.                  See
Commonwealth v. Sanford, 445 A.2d 149, 150 (Pa. Super. 1982); see
also Pa.R.A.P. 2101.



                                           - 10 -
J-S10013-15




              - 11 -
