J-S37016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MICHAEL CALISTO,                       :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                   Appellant            :
                                        :
                                        :
              v.                        :
                                        :
                                        :
 MICHAEL RODGERS                        :   No. 2834 EDA 2018

           Appeal from the Judgment Entered November 2, 2018,
            in the Court of Common Pleas of Philadelphia County,
                     Civil Division at No(s): 160801903.

BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

DISSENTING MEMORANDUM BY BOWES, J.:                  Filed: August 6, 2020

     I cannot join the Majority memorandum.        In my view, my learned

colleagues have ventured far afield from the record and issues that are

properly before us in this appeal.   Furthermore, the Majority’s analysis is

based upon a misunderstanding and misapplication of several relevant legal

principles, and results in an inappropriate disposition of this appeal.

Therefore, I dissent, and offer the following discussion of my main areas of

disagreement.

I.   The Majority fails to view the record in the light most favorable
     to the verdict winner and misuses judicial notice to improperly
     augment the certified record.

     The trial court found that Rodgers and Calisto had an oral agreement

for the sale of three properties that Calisto inherited from his mother; that

Calisto executed a sales agreement when Rodgers supplied a cash down

payment; that Calisto provided Rodgers with deeds to the properties upon
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Rodgers’s cash tender of the remainder of the sale price; and that Calisto

feigned ignorance of the deal and accused Rodgers of fraud when Rodgers

went to take possession of the properties. While professing adherence to the

proper standard of review, the Majority nevertheless proceeds to view the

evidence in a light most unfavorable to Rodgers, the verdict winner, in

reviewing this appeal. 1 See Majority Memorandum at 18, 25 (observing that

dates on the deeds “cast doubt upon Rodgers’[s] story”); id. at 26




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1 For example, the Majority’s factual summary of record omits reference to
evidence supporting the trial court’s determination that Calisto’s story was
incredible. The record shows that Calisto at no time sought to have the
properties transferred into his name, because he never had “[a] disposable
$5,000” to cover the transfer fees. See N.T. Trial, 3/26/18, at 168. Further,
under his management, the properties fell into such disrepair that the city of
Philadelphia filed blighted-property conservatorship actions against them.
Id. at 145. Additionally, Calisto was cited for numerous property violations,
and owed thousands of dollars in back taxes. Id. at 150-51. A tenant in one
of the duplexes remained in his apartment although he stopped paying rent
in 2008, but Calisto took no steps to evict him because he lacked funds to pay
a lawyer. Id. at 163. Moreover, Calisto personally was subject to a $160,000
judgment in 2012. Id. at 153.

Yet, despite his lack of funds to satisfy any of his obligations or to have the
properties transferred to his name, Calisto purported to have accumulated
$20,000 to pay contractors to do repair work on the dilapidated properties
and “was prepared that very day in July 2016” to begin fixing up the duplexes
when, in a stroke of incredible misfortune, “this thing with Rodgers happened.”
Id. at 168-69. See also id. at 170 (“That very day, that very day, I was
actually recounting in my head who I was going to call that day. I had a list
of contractors, people who were ready to go.”). According to Calisto, “that
thing” included being assaulted by Rodgers’s locksmith and having eight
Russians show up and seize one of the properties. Id. at 106, 114.



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(highlighting inconsistencies in the versions of events offered by Rodgers and

a witness to the transaction).

        It is well settled that “our standard of review [following a non-jury

verdict] demands that we consider the evidence in a light most favorable to

the verdict winner.” Levitt v. Patrick, 976 A.2d 581, 589 (Pa.Super. 2009)

(internal quotation marks omitted). Further, “[w]hen reviewing the results of

a non-jury trial, we give great deference to the factual findings of the trial

court.” Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa.Super.

2008). Accordingly, this Court must accept the trial court’s findings because

they are supported by the record,2 not, as the Majority contends, because

Calisto fails to challenge them.

        The Majority further stumbles out of the gate by including within its

scope of review evidence that is not properly before this Court in this appeal

through the incorrect use of judicial notice. Specifically, the Majority discusses

Rodgers’ case against Calisto, which has absolutely no bearing on this appeal,

by relying upon an uncertified copy of a transcript from that case that Calisto

appended to his supplemental brief.              After reciting Calisto’s self-serving

testimony, which was expressly rejected by this trial court, the Majority

proceeds to take judicial notice not merely of the existence of a judgment in

the Rodgers case, but the entire record of the case.                   See Majority



____________________________________________


2   See N.T. Trial, 3/27/18, 35-66, 158-65; Plaintiff’s Exhibit 4.

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Memorandum at 1-3, 6.       The Majority then pronounces that two judges

reached “diametrically opposite conclusions” in the two cases, with the

judgment in the case that is not before us having become not only a final

judgment, but a final judgment on the merits. Id. at 10, 18-19 n.7.

     It is axiomatic that “an appellate court is limited to considering only the

materials in the certified record when resolving an issue.” Ruspi v. Glatz, 69

A.3d 680, 691 (Pa.Super. 2013) (internal quotation marks omitted). Indeed,

“any document which is not part of the officially certified record is deemed

non-existent—a deficiency which cannot be remedied merely by including

copies of the missing documents in a brief or in the reproduced record.” Id.

(internal quotation marks omitted).

     The Majority speaks of the “Ruspi Rule” as if the principle had not been

long-established before that case was decided. See Majority Memorandum at

9 n.3. Far from it, the portions of Ruspi quoted by the Majority are taken

from this Court’s decision in Commonwealth v. Preston, 904 A.2d 1

(Pa.Super. 2006).   The Preston opinion, in turn, noted that “[t]he law of

Pennsylvania is well settled that matters which are not of record cannot be

considered on appeal,” and cited for that proposition Commonwealth v.

Bracalielly, 658 A.2d 755, 763 (Pa. 1995); Commonwealth v. Baker, 614

A.2d 663, 672 (Pa. 1992); Commonwealth v. Quinlan, 412 A.2d 494, 496

(Pa. 1980); and Commonwealth v. Young, 317 A.2d 258 (Pa. 1974).

Preston, supra at 6. See also Pa.R.A.P. 1921, Note (“An appellate court


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may consider only the facts which have been duly certified in the record on

appeal.”).

      The Majority suggests that Pa.R.E. 201 is an exception to this canon of

appellate review and allows it to take judicial notice of the other case’s record.

See Majority Memorandum at 9 n.3.         Rule 201 governs the circumstances

when a court may take judicial notice of an adjudicative fact. “Judicial notice

allows the trial court to accept into evidence indisputable facts to avoid the

formality of introducing evidence to prove an incontestable issue. However,

the facts must be of a matter of common knowledge and derived from reliable

sources whose accuracy cannot reasonably be questioned.” Kinley v. Bierly,

876 A.2d 419, 421 (Pa.Super. 2005) (cleaned up).

      Adjudicative facts subject to judicial notice under Rule 201 “are facts

about the events, persons and places relevant to the matter before the court.”

Pa.R.E. 201, Comment. Such adjudicative facts properly established through

judicial notice include, for example, the day of the week upon which a certain

date falls, Mentz v. Unemployment Comp. Bd. of Review, 370 A.2d 1232,

1233 (Pa. 1977); “geographical facts such as the county in which a city or

town is located, or the distance between places,” Goff v. Armbrecht Motor

Truck Sales, Inc., 426 A.2d 628, 630 (Pa.Super. 1980); and the qualities

and properties of matter, such as that cement does not ordinarily give way

under the weight of an average person. Walters v. Char-Mar, Inc., 284

A.2d 139, 143 (Pa.Super. 1971).


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      A court may take judicial notice of uncontested notations on its own

docket and in record in the case before it. See, e.g., Commonwealth v.

Bond, 532 A.2d 339, 343 (Pa. 1987); Commonwealth v. Harris, 462 A.2d

725, 729 (Pa.Super. 1983). However, time and time again, dating back nearly

a century, Pennsylvania appellate courts have rejected the use of judicial

notice to import the record of one case into another. See, e.g., Callery v.

Blythe Township Municipal Authority, 243 A.2d 385 (Pa. 1968) (citing

Naffah v. City Deposit Bank, 13 A.2d 63, 64 (Pa. 1940) (“It is well

established that a court may not ordinarily take judicial notice in one case of

the records of another case, whether in another court or its own, even though

the contents of those records may be known to the court.”).            See also

Richner v. McCance, 13 A.3d 950, 957 n.2 (Pa.Super. 2011) (same, noting

the lack of this Court’s authority to take judicial notice of a stay order entered

in another case); In re J.C., 5 A.3d 284, 289 (Pa.Super. 2010) (same,

refusing to take judicial notice of a custody order entered in another case);

In re Estate of Brockerman, 480 A.2d 1199, 1202 (Pa.Super. 1984) (same,

refusing to take judicial notice of estate accounts filed of record in another

case).

      Accordingly, the Majority’s use of judicial notice in this case is improper.

No testimony, evidence, or other record from the subsequent Rodgers case

cited and discussed by the Majority is properly before us in this appeal. This




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decision must be based solely upon the certified record in this appeal, viewed

in the light most favorable to Rodgers as the verdict winner.

II.   The Majority misapprehends the purpose and requirements of
      the statute of frauds and misapplies it to overturn a properly-
      reached verdict in this case.

      The purpose of the statute of frauds is “the prevention of successful

fraud by inducing the enforcement of contracts that were never in fact made.

It is not to prevent the performance or the enforcement of oral

contracts that have in fact been made.” In re Beeruk’s Estate, 241

A.2d 755, 758 (Pa. 1968) (cleaned up, emphasis added). See also Zuk v.

Zuk, 55 A.3d 102, 107 (Pa.Super. 2012) (“Pennsylvania courts have

emphasized that the Statute is not designed to prevent the performance or

enforcement of oral contracts that in fact were made.” (emphasis in original,

internal quotation marks omitted)).

      “The Statute of Frauds does not void those oral contracts relating to land

which fail to comply with the Statute’s formal requirements.”        Fannin v.

Cratty, 480 A.2d 1056, 1059 (Pa.Super. 1984)). Rather, it “prevent[s] the

enforcement of unfounded fraudulent claims by requiring that contracts

pertaining to interests in real estate be supported by written evidence.”

Strausser v. PRAMCO, III, 944 A.2d 761, 765 (Pa.Super. 2008) (internal

quotation marks omitted).

      A writing need not be so formal as a deed to fulfill the statute’s

requirements. Instead, a court “should always be satisfied with some note or


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memorandum that is adequate to convince the court that there is no serious

possibility of consummating fraud by enforcement.” Beeruk's Estate, supra

at 758 (cleaned up).     “When the mind of the court has reached such a

conviction as that, it neither promotes justice nor lends respect to the statute

to refuse enforcement because of informality in the memorandum or its

incompleteness in detail.” Id.

      This Court has noted that the writing necessary to satisfy the statute

“need only contain a sufficient statement of the terms of the agreement and

the signature of the grantor.” In re Estate of Dotterrer, 579 A.2d 952, 954

(Pa.Super. 1990). Similarly, “there is no requirement in the Statute or the

decisional law that a signature be in any particular form.” Hessenthaler v.

Farzin, 564 A.2d 990, 993 (Pa.Super. 1989).

      Instead, the focus has been on whether there is some reliable
      indication that the person to be charged with performing under
      the writing intended to authenticate it. Thus, for example, the
      Restatement (Second) of Contracts provides that:

            The signature to a memorandum may be any symbol
            made or adopted with an intention, actual or
            apparent, to authenticate the writing as that of
            the signer.

Id. (emphasis in original) (quoting Restatement of Contracts § 134).

      The Majority’s decision to overturn the verdict in this case is based upon

a construction of the statute of frauds inconsistent with the above authority.

The Majority operates under the misperception that the statute of frauds only

allows courts to enforce contracts for the sale of land if a writing evidencing


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the agreement is in and of itself an enforceable contract.         See Majority

Memorandum at 17. That is contradicted by the cases cited above: all that is

required is some informal writing to support the existence of an oral contract.

See, e.g., Beeruk's Estate, supra at 758.

       Furthering this misapprehension, the Majority also incorrectly deems

any evidence of the oral agreement that was supported by the offered writings

to be improper parol evidence because it does not rise to the level of

“indubitable proof.”3 See Majority Memorandum at 20, 25 (quoting Kurland

v. Stolker, 533 A.2d 1370 (Pa. 1987). See also id. at 37 (citing Kurland

for the proposition that the written sales agreement in evidence in this case

cannot satisfy the statute of frauds because it “only applies to these parties if

Rodgers resorts to parol evidence and thereby converts it to an unenforceable

parol agreement” ). The authority supra makes it abundantly clear that oral

contracts that were, in fact, made are fully valid and enforceable so long as

there is some note or memorandum sufficient to convince the court that




____________________________________________


3 The Majority also conflates distinct legal principles by suggesting that the
invalid deeds cannot serve as a writing in support of the fact that Calisto
agreed to transfer the properties to Rodgers because the only means to
effectuate a transfer of the properties to Rodgers was through a valid deed.
See Majority Memorandum at 20. The question pertinent to the statute-of-
frauds analysis is not whether Calisto completed a legal transfer of the
properties to Rodgers when he provided Rodgers with the defective deeds that
he signed on behalf of his mother. Rather, the question is whether the deeds,
or any other writing in evidence, sufficiently supported the oral contract
between the parties to render it enforceable.

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enforcing the oral contract would not consummate fraud. See, e.g., Beeruk's

Estate, supra at 758.

      The Majority relies heavily upon our Supreme Court’s Kurland decision

as a basis to reverse the trial court’s verdict. See Majority Memorandum at

23-25, 27, 29. Such reliance is misplaced. Kurland involved a trial court’s

enforcement of an oral contract that was unsupported by any writing. In

such cases, Kurland demands proof of the terms of the oral contract beyond

a doubt to “take an oral contract out of the statute” and permit its

enforcement. Kurland, supra at 1373. In the case sub judice, the trial court

did not remove the case from the statute and enforce a purely oral agreement.

Instead, it determined that the record contained writings sufficient to satisfy

the statute of frauds.    Therefore, Kurland is inapposite in deciding the

question before this Court in the instant appeal—namely, whether one or more

of the writings in evidence satisfied the requirements of the statute of frauds.

      In my view, applying the proper law detailed above to the duly-rendered

findings of the trial court, the statute of frauds serves as no basis to disturb

the judgment in this case. Rodgers testified to the terms of an oral contract

for the sale of the three properties to which Calisto agreed. The trial court

believed Rodgers.    The record contains a writing that supports the oral

contract: the purchase agreement that listed the properties by address,

identified Joan as the owner, stated the purchase price and the down payment,

and was signed by Calisto, albeit on behalf of a fictitious selling company. The


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purchase agreement was offered into evidence by Calisto.          See Plaintiff’s

Exhibit 4.    That writing was sufficient to satisfy the statute of frauds and

establish that Calisto contracted with Rodgers to sell the properties.4 Accord

John Deere Co. v. Haralson, 599 S.E.2d 164, 166–67 (Ga. 2004) (holding

writing satisfied the statute of frauds in case in which the signature was

illegible, the defendant’s name was not printed on the writing, and the

defendant denied signing it, because oral testimony established that the

defendant was in fact the signatory, and such testimony did not implicate the

parol evidence rule).5 Therefore, the trial court did not err in concluding that

Calisto failed to prove that he was entitled to a judgment in his favor on the

quiet title claim upon which he bore the burden of proof.            See, e.g.,

Woodhouse Hunting Club, Inc. v. Hoyt, 183 A.3d 453, 457 (Pa.Super.

2018) (“The plaintiff bringing a quiet title action has the burden of proof and

must recover on the strength of its own title.”).

       The statute of frauds “is to be used as a shield and not as a sword, as it

was designed to prevent frauds, not to encourage them.”                 Empire


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4 The trial court relied upon the deeds rather than the purchase agreement as
the significant writing. However, “it is well established that this Court may
affirm a trial court’s ruling on any basis.” Zehner v. Zehner, 195 A.3d 574,
582 n.12 (Pa.Super. 2018).

5 I have discovered no Pennsylvania cases addressing this particular factual
scenario. However, this Court, considering the validity of a signature on a
form to change the beneficiary of an insurance policy, similarly affirmed a
verdict based upon oral testimony that established that an illegible mark was
that of the insured. See Tomilio v. Pisco, 187 A. 86, 89 (Pa.Super. 1936).

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Properties, Inc. v. Equireal, Inc., 674 A.2d 297, 302 (Pa.Super. 1996)

(internal quotation marks omitted). By casting aside the trial court’s findings

and awarding the properties to Calisto, the Majority allows Calisto to use the

statute of frauds to perpetrate a fraud.

III. The record does not contain sufficient evidence to support the
     Majority’s decision to quiet title in the properties in favor of
     Calisto, and its sua sponte award of equitable relief to Rodgers
     exceeds our function as a reviewing court.

      The Majority remands for the trial court to quiet title in favor of Calisto.

See Majority Memorandum at 39.           This determination is based upon its

conclusion that, because Rodgers had no enforceable interest in the

properties, Calisto is the legal owner of them via his mother’s will. Id. at 27.

      “[Q]uiet title serves to determine the relative and respective rights of

all potential title holders.”   Becker v. Wishard, 202 A.3d 718, 721-22

(Pa.Super. 2019). The litigation of an action to quiet title is governed by the

Rules of Civil Procedure. See Pa.R.C.P. 1061-1068. A quiet title action may

be brought:

      (1) to compel an adverse party to commence an action of
      ejectment;

      (2) where an action of ejectment will not lie, to determine any
      right, lien, title or interest in the land or determine the validity or
      discharge of any document, obligation or deed affecting any right,
      lien, title or interest in land;

      (3) to compel an adverse party to file, record, cancel, surrender
      or satisfy of record, or admit the validity, invalidity or discharge
      of, any document, obligation or deed affecting any right, lien, title
      or interest in land; or


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      (4) to obtain possession of land sold at a judicial or tax sale.

Pa.R.C.P. No. 1061(b).

      Based upon the relief Calisto requested, it appears that the instant quiet

title claim was made pursuant to Pa.R.C.P. 1061(b)(2), which allows a party

to bring a quiet title action only “where an action of ejectment will not lie.”

Pa.R.C.P. 1061(b)(2).

      “The purpose of an ejectment action as opposed to quiet title is not to

determine the relative and respective rights of all potential title holders, but

rather the immediate rights between plaintiff and defendant involved in that

particular litigation.”   Siskos v. Britz, 790 A.2d 1000, 1006 (Pa. 2002)

(internal quotation marks omitted).        See also 4 Goodrich Amram 2d

§ 1061(b):3 (“The action to quiet title is designed to cover all the situations

that ejectment cannot adjudicate; between the two actions, every available

title question should be subject to adjudication in an action at law.”).

Accordingly, before even entertaining a quiet title action under Rule

1061(b)(2), the court first must determine who is in possession of the

property at issue. See Siskos, supra at 1007.

      Calisto did not allege that he was in possession of the properties at the

time he filed the complaint. Nor did Rodgers’s answer and new matter assert

that he was in possession of any of the properties and that title should instead

be quieted in him. Testimony at trial suggested Calisto maintained possession

of some of the properties, while Rodgers secured another. See N.T. Trial,


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3/26/20, at 114 (Calisto testifying that eight Russians showed up and seized

one of the properties). The trial court did not make a determination as to

possession, whether an ejectment action was available, or proclaim the

respective rights of the title holders. Rather, with the quiet title and identity

fraud causes of action before it, the trial court merely entered a general

defense verdict.

       Therefore, the Majority’s direction to the trial court to enter a decree

quieting title in all three properties in Calisto, without acknowledging the legal

requirements of a quiet title action, let alone addressing how Calisto met his

burden of proof to establish his claim, serves as further basis for my dissent.

See Siskos v. Britz, 790 A.2d 1000, 1008 (Pa. 2002) (“Permitting an out-of-

possession plaintiff to maintain an action to quiet title is impermissible

because it constitutes an enlargement of the plaintiff’s substantive rights as

defined by statute, and thus exceeds the court’s jurisdiction to proceed.”

(internal quotation marks omitted)); Woodhouse Hunting Club, Inc. v.

Hoyt, 183 A.3d 453, 457 (Pa.Super. 2018) (“The plaintiff bringing a quiet title

action has the burden of proof and must recover on the strength of its own

title.”).

       Finally, the Majority supports its decision to sua sponte order Calisto to

return the $150,000 purchase price to Rodgers with neither law nor facts. The

Majority indicates that this Court is empowered to grant equitable relief to

Rodgers because we granted Calisto the equitable relief he sought.           See


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Majority Memorandum at 38.           However, the Majority did not itself grant

equitable relief to Calisto, it determined that the trial court committed an error

of law and remands for the trial court to enter a decree consistent with this

opinion. See id. at 10.

      More significantly, while the Majority cites authority for the general

proposition that a court sitting in equity may do justice for all litigants before

it, see id. at 38, the Majority offers zero precedent that suggests that this

Court, in reviewing a verdict in a quiet tile or any other action, may sua sponte

grant relief to an appellee which he never requested and which was never

considered by the trial court.       Stated plainly, I believe the Majority has

overreached by forsaking this Court’s function as an error-correcting court and

placing itself in the role of a trial court. Hence, even if I agreed that Calisto

were entitled to relief, I would leave it for the trial court to determine in the

first instance whether equity demanded corresponding relief to Rodgers.

IV.   Conclusion

      For all of the above reasons and more, I cannot join the Majority.

Therefore, I respectfully dissent.




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