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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


ROBERT L. PAULETTA, JR,                    :      IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                        Appellant          :
                                           :
                  v.                       :
                                           :
THOMAS HAMILTON and                        :
THERESA HAMILTON,                          :
                                           :
                                           :      No. 1474 MDA 2015

                Appeal from the Order Entered August 14, 2015
               In the Court of Common Pleas of Dauphin County
                      Civil Division at No.: 2014 CV 3177

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.:                                  FILED MAY 24, 2016

      Appellant Robert L. Pauletta, Jr., plaintiff below, appeals pro se from

the Order dated August 14, 2015, granting summary judgment to Appellees

Theresa and Thomas Hamilton, defendants below. After careful review, we

affirm.

      In 2008, Appellant entered into a business relationship with Appellees,

husband and wife, to acquire, rehabilitate, and sell properties for a profit.

      In October 2010, Appellant started working for Mid-Atlantic Corporate

Federal Credit Union (“Mid-Atlantic”) as a temporary Senior Loan Officer.

Mid-Atlantic   hired   Appellant    through    Aerotek    Professional   Services

(“Aerotek”), a temporary employment agency.              Appellant’s employment

contract with Aerotek provided for employment at its client Mid-Atlantic “for
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a temporary period[.]” Aerotek Employment Agreement, dated 10/14/10, at

1.   Appellant continuously worked with Mid-Atlantic through Aerotek for

nearly two years until August 2012.

      The parties had disagreements over their business venture, and in

August 2012 Appellees started sending Appellant threatening text messages

and harassing him with phone calls. When Appellees threatened to come to

Mid-Atlantic and cause problems for Appellant, Appellant informed his

supervisors at Mid-Atlantic of the threatening messages and phone calls on

August 13, 2012.       Appellant believed it was necessary to alert his

supervisors for the safety of the other Mid-Atlantic employees.       After

listening to Appellant’s report and viewing the threatening messages, Mid-

Atlantic contacted the local police department.

      Police Officer Daniel Tingle responded to Mid-Atlantic and spoke with

Appellant.   After briefly viewing the threatening messages, Officer Tingle

cautioned Appellant that his text messages inflamed the situation and told

Appellant he should not contact Appellee Thomas Hamilton. “Call Summary

Report” authored by Officer Tingle, dated 8/13/12, at 1-2.

      Officer Tingle also spoke with Appellee Thomas Hamilton and warned

him that he should not contact Appellant directly and that he should stay

away from Mid-Atlantic or risk an arrest for criminal trespass. Id. Officer

Tingle advised Appellant and Mid-Atlantic that Appellee Thomas Hamilton




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requested a “no trespass letter” and confirmed they would send the letter to

Appellee’s address. Id. Officer Tingle filed his report on August 13, 2012.

      Later that evening, a representative of Aerotek informed Appellant that

Mid-Atlantic had decided to terminate Appellant’s temporary employment

contract and that he should not return to work the next day.

      On April 8, 2014, Appellant filed a pro se Complaint against Appellees

seeking $472,814.89 in damages for lost wages, and $1,418,444.67 in

punitive damages and treble damages for pain and suffering.

      Appellees filed preliminary objections to Appellant’s Complaint, which

the trial court sustained following a hearing on December 5, 2014.        The

court concluded that Appellant failed to state a cause of action and failed to

plead facts against Appellee Theresa Hamilton with specificity.    Trial Court

Order, dated 12/5/14, at 1. The trial court granted Appellant leave to file an

Amended Complaint within 20 days. Id.

      Appellant filed an Amended Complaint on December 10, 2014,

asserting a claim of Tortious Interference with Contractual Relations.

Appellees filed an Answer on December 30, 2014.1 Appellees filed a Motion

for   Summary   Judgment on     February   5, 2015, attaching      Appellant’s


1
  The scant certified record does not contain much information about the
discovery proceedings in this matter or the documentary evidence obtained.
The parties refer to several items, however, including interrogatories,
Appellant’s Aerotek Employment Agreement, and the Call Summary Report
authored by Officer Tingle, some of which made their way into the record
appended to various pleadings, in whole or in part.



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employment agreement with Aerotek and several of Appellant’s answers to

interrogatories.     Appellant responded with general denials and again

attached the Call Summary Report authored by Officer Tingle. He conducted

no further discovery.

      After additional briefing by the parties and a hearing, the trial court

granted Appellees’ Motion for Summary Judgment on August 14, 2015,

concluding as a matter of law that Appellant failed to set forth a prima facie

case with respect to Appellees’ intent, Appellees’ actual interference with

Appellant’s    contractual   relationship   with   Mid-Atlantic,   and   causation

regarding any damage attributable to Appellees.         Trial Court Memorandum

and Order, filed 8/14/15, at 2.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      On appeal, Appellant presents two issues for our review:

      (1)     [Are] there more genuine issues of any material facts as to
              a necessary element of the cause of action[,] which could
              be established by additional discovery or expert report?

      (2)     Is Defendant/Appellee relying on mere denials in their
              [M]otion for Summary Judgment?

Appellant’s Brief at 2-3.

      A trial court may grant summary judgment “only in those cases where

the record clearly demonstrates that there is no genuine issue of material

fact and that the moving party is entitled to judgment as a matter of law.”

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (citation


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and quotation omitted); see also Pa.R.C.P. No. 1035.2(1).              “When

considering a motion for summary judgment, the trial court must take all

facts of record and reasonable inferences therefrom in a light most favorable

to the non-moving party.”     Summers, supra at 1159 (citation omitted).

“In so doing, the trial court must resolve all doubts as to the existence of a

genuine issue of material fact against the moving party, and, thus, may only

grant summary judgment ‘where the right to such judgment is clear and free

from all doubt.’” Id. (citation omitted).

      “Where the non-moving party bears the burden of proof on an issue,

he may not merely rely on his pleadings or answers in order to survive

summary judgment.”      Truax v. Roulhac, 126 A.3d 991, 997 (Pa. Super.

2015) (citation and quotation omitted).     “Further, failure of a non-moving

party to adduce sufficient evidence on an issue essential to his case and on

which he bears the burden of proof establishes the entitlement of the

moving party to judgment as a matter of law.”       Id. (citation and internal

quotation marks omitted).

      On appellate review, then, an appellate court may reverse a
      grant of summary judgment if there has been an error of law or
      an abuse of discretion. But the issue as to whether there are no
      genuine issues as to any material fact presents a question of
      law, and therefore, on that question our standard of review is de
      novo. This means we need not defer to the determinations
      made by the lower tribunals. To the extent that this Court must
      resolve a question of law, we shall review the grant of summary
      judgment in the context of the entire record.




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Summers, supra at 1159 (citations and internal quotation marks omitted).

“If there is evidence that would allow a fact-finder to render a verdict in

favor of the non-moving party, then summary judgment should be denied.”

Truax, supra at 997 (citation and quotation omitted).

     In his first issue, Appellant avers that genuine issues of material fact

exist and that the trial court erred in granting Appellees’ Motion for

Summary Judgment. Appellant’s Brief at 2, 6. Appellant contends that he

has set forth a prima facie case for tortious interference, that there are

genuine issues of material fact,2 and that it is clear that Appellees were not

entitled to summary judgment as a matter of law. Id. at 6-8.

     In order to hold a defendant liable for Tortious Interference with

Contractual Relations, whether existing or prospective, the plaintiff must

prove the following four elements:

     (1) The existence of a contractual, or prospective contractual
     relation between the complainant and a third party;

     (2) purposeful action on the part of the defendant, specifically
     intended to harm the existing relation, or to prevent a
     prospective relation from occurring;

     (3) the absence of privilege or justification on the part of the
     defendant; and



2
  Appellant contends the following present genuine issues of material fact:
(1) “The purpose or intent to harm the [Appellant] by preventing the relation
from occurring; (2) “The absence of privilege or justification on the part of
the [Appellee]”; and (3) “The occasioning of actual damage resulting from
the [Appellee]’s conduct[.]” Appellant’s Brief at 4.



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      (4) the occasioning of actual legal damage as a result of the
      defendant’s conduct.

Reading Radio, Inc. v. Fink, 833 A.2d 199, 211 (Pa. Super. 2003)

(citation and quotation omitted).

      The trial court explained in its Pa.R.A.P. 1925(a) Opinion that

it granted summary judgment because:

            [Appellant] has failed to provide any evidence that
      [Appellees] had any purpose or intent to harm him by preventing
      his employment at [Mid-Atlantic]. [Appellant] has failed to put
      forth evidence to support [Appellees]’ intent to interfere with the
      contractual relationship with [Mid-Atlantic], nor has [Appellant]
      provided any evidence that [Appellees] actually interfered with
      said relationship.

            [Appellant] has failed to provide evidence that any damage
      was attributable to [Appellees]. While it is not in dispute that
      [Appellant]’s employment at [Mid-Atlantic] was terminated,
      there is no evidence in the record to establish that his
      termination was the result of any of the allegations made against
      [Appellees].

Trial Court Memorandum and Order, filed 8/14/15, at 2.

      We agree with the trial court’s assessment.     Based on our review of

the certified record, Appellant failed to provide any evidence of Appellees’

intent, or “purposeful action” intended to harm Appellant’s relationship with

Mid-Atlantic. Although the police report mentions in the narrative portion of

the report that Officer Tingle “review[ed] the text messages on [Appellant]’s

phone briefly[,]” Appellant did not offer any of the actual text messages or

any phone records.     “Call Summary Report” authored by Officer Tingle,

dated 8/13/12, at 1.    Although the police report mentions that Appellee



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Thomas “Hamilton did threaten to come to [Appellant’s] work place[,]” id.,

Appellant failed to provide any evidence of Appellees’ intent to interfere with

Appellant’s relationship with Mid-Atlantic or Aerotek.

      Moreover, Appellee Thomas Hamilton sent these communications to

Appellant rather than Mid-Atlantic or Aerotek.     Appellant failed to provide

any evidence of Appellees’ actions that actually interfered with Appellant’s

relationship with Mid-Atlantic or Aerotek.     Appellant reported Appellee’s

communications to his supervisors at Mid-Atlantic.

      Accordingly, the trial court did not err or abuse its discretion in

granting Appellees’ Motion for Summary Judgment.

      In his second issue, Appellant avers that Appellees improperly relied

on “mere denials” in their Motion for Summary Judgment in derogation of

Pa.R.C.P. No. 1035.3.

      Rule 1035.3 (“Response. Judgment for Failure to Respond”) provides:

      (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

        (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.

      (b) An adverse party may supplement the record or set forth the
      reasons why the party cannot present evidence essential to


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      justify opposition to the motion and any action proposed to be
      taken by the party to present such evidence.

      (c) The court may rule upon the motion for judgment or permit
      affidavits to be obtained, depositions to be taken or other
      discovery to be had or make such other order as is just.

      (d) Summary judgment may be entered against a party who
      does not respond.

         (e)(1) Nothing in this rule is intended to prohibit a court,
         at any time prior to trial, from ruling upon a motion for
         summary judgment without written responses or briefs if
         no party is prejudiced. A party is prejudiced if he or she is
         not given a full and fair opportunity to supplement the
         record and to oppose the motion.

         (2) A court granting a motion under subdivision (e)(1)
         shall state the reasons for its decision in the written
         opinion or on the record.

Pa.R.C.P. No. 1035.3.

      Appellant misreads Rule 1035.3 as it applies here. Appellees made the

Motion for Summary Judgment; accordingly, Appellant was the “adverse

party” under Rule 1035.3.      Starting from his flawed premise, Appellant

mischaracterizes the relative burdens and erroneously argues that Appellees

failed to carry their burden.3 In light of this proper reading of Rule 1035.3,

Appellant actually failed to appropriately address Appellees’ Motion for




3
  In fact, the certified record belies Appellant’s assertion. Appellees included
Appellant’s employment agreement with Aerotek in their Motion for
Summary Judgment. Additionally, Appellees attached several of Appellant’s
answers to interrogatories to supplement their Motion for Summary
Judgment.



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Summary Judgment and instead relied on “mere allegations or denials of the

pleadings” in his response. Pa.R.C.P. No. 1035.3.

     In fact, Appellant’s response to Appellees’ Motion for Summary

Judgment consisted of mere admissions or denials based on the pleadings,

specifically, his Complaint. “Objections to [Appellees’] Motion for Summary

Judgment,” dated 2/26/15, at 1-5.        Appellant also did not invoke Rule

1035.3(c) to supplement the record through affidavits, depositions, or other

additional discovery. Pa.R.C.P. No. 1035.3(c). Thus, it was Appellant who

failed to comply with Rule 1035.3.

     Accordingly, the trial court did not err as a matter of law or abuse its

discretion in granting Appellees’ Motion for Summary Judgment.

     Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/24/2016




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