J-A12036-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ALBERT E. CUNEO                                  IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

FINANCIAL DIMENSIONS, INC.

                         Appellee                     No. 1518 WDA 2016


                  Appeal from the Order September 8, 2016
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): AR-16-1258


BEFORE: OLSON, SOLANO and RANSOM, JJ.

MEMORANDUM BY OLSON, J.:                        FILED: OCTOBER 23, 2017

      Appellant, Albert E. Cuneo, appeals pro se from the order entered on

September 8, 2016, granting a motion for judgment on the pleadings filed

by Financial Dimensions, Inc. (“Financial Dimensions”).       Upon review, we

affirm.

      We briefly summarize the facts and procedural history of this case as

follows.   As gleaned from the record, in April 2015, Appellant parked his

girlfriend’s pick-up truck in Financial Dimensions’ parking lot and left it there

while he reported to work as a commercial truck driver.         After the West

Mifflin Police Department received a telephone call about the vehicle, a

towing company removed it from Financial Dimensions’ lot.

      On June 3, 2015, Appellant was convicted, in Magisterial District Court,

of the summary offense of abandonment of vehicles pursuant to 75
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Pa.C.S.A. § 3712. Appellant statutorily appealed that decision to the Court

of Common Pleas of Allegheny County, wherein the trial court vacated the

conviction after the Commonwealth failed to present witnesses against

Appellant.

     Thereafter, on April 11, 2016, Appellant filed a civil complaint against

Financial Dimensions with the Magisterial District Court.   Appellant alleged

that an agent of Financial Dimensions told him he could park in the lot, but

later called West Mifflin police to report that Appellant had abandoned the

pick-up truck. Moreover, Appellant alleged that Financial Dimensions’ agent

provided false information to the police about the length of time Appellant

the vehicle remained at the lot. Following a hearing, the magistrate entered

an order on March 3, 2016, granting judgment in favor of Financial

Dimensions.

     On March 28, 2016, Appellant appealed that decision to the Court of

Common Pleas of Allegheny County.      On April 11, 2016, Appellant filed a

four-count complaint with the trial court against Financial Dimensions,

alleging: (1) negligence seeking damages resulting from defense of false

charges; (2) interference with business and contractual relationships; (3)

trespass upon person and moveable property; and, (4) conversion of time,

money and legal rights. In response, Financial Dimensions filed an answer,

new matter, and counterclaim.      Appellant filed preliminary objections to

Financial Dimensions’ counterclaim, which the trial court denied.      Upon

review of the record, Appellant served various subpoenas on Financial

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Dimensions, Financial Dimensions’ landlord, the Pennsylvania Department of

Transportation, the West Mifflin Police Department, Appellant’s girlfriend,

and the truck dealership where his girlfriend purchased the vehicle in

question. At the close of discovery, both parties filed motions for judgment

on the pleadings.

       On September 8, 2016, the trial court entered an order, with an

accompanying memorandum, that granted Financial Dimensions’ motion for

judgment on the pleadings and dismissed Appellant’s complaint with

prejudice.     This timely pro se appeal resulted.1      On appeal, Appellant

presents the following issues, pro se, for our review:

       I.     In considering an abandoned vehicle, does the Department
              of Transportation (Department) or any other law presume
              a land owner or one in control of private land, be in
              possession of the vehicle because of where the vehicle is
              parked?

       II.    Can possession of an abandoned vehicle manifest to one
              who controls private land in a manner of giving authority
              to sign a [v]ehicle processing form which consigns, or in
              any way transfers possession of the vehicle to law
              enforcement agents for removal and any other legal
              process?

       III.   Did the trial court give a fair and full review and reach a
              correct disposition of [Financial Dimensions’] motion for
____________________________________________


1   Appellant filed a pro se notice of appeal on October 6, 2016. The trial
court did not order Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b). Instead, the trial court entered
an order on October 20, 2016, citing Pa.R.A.P. 1925(a), wherein it relied
upon its earlier, September 8, 2016 memorandum in support of its decision
to dismiss Appellant’s complaint with prejudice.



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             judgment on pleadings in making its dispositive judgment
             in this matter?

      IV.    Did the trial court give a fair and full review and correct
             disposition of [Appellant’s] motion for judgment on the
             pleadings in making its dispositive judgment in this
             matter?

      V.     Did the trial court following review and disposition of
             [Financial Dimensions’] motion for judgment on the
             pleadings follow standard Pennsylvania [p]ractice to afford
             [Appellant] opportunity to amend his pleadings for
             re-service, and thereafter to receive an amended answer
             to the amended pleas and additional actions?

      VI.    Did the trial court err by not permitting pleading
             amendment for causes of action which could have resulted
             in recovery under any theory as prescribed under relevant
             Supreme Court procedural rule dispositions?

      VII.   Did the trial court cause prejudice in the proceeding
             against [Appellant]?

      VIII. Does a private property owner become liable for trespass
            or conversion if [the] lawful procedure of removing any
            vehicle from private property is not properly administered?


Appellant’s Brief at 8-9 (parenthetical and suggested answers omitted).

      Initially we note that Appellant failed to follow the rules of appellate

procedure by dividing the argument section of his brief to this Court to

correspond with the questions presented. See Graziani v. Randolph, 856

A.2d 1212, 1216 (Pa. Super. 2004) (noting a brief containing argument

sections that do not clearly correspond to the questions presented violates

Pa.R.A.P. 2116(a)).    We remind Appellant that, “[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.”      Wilkins v. Marsico, 903

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A.2d 1281, 1284–1285 (Pa. Super. 2006) (citation omitted).                 “To the

contrary, any person choosing to represent himself in a legal proceeding

must, to a reasonable extent, assume that his lack of expertise and legal

training will be his undoing.”     Id.     However, here, to the extent that

Appellant’s arguments address the issues presented, we will examine them.

See Lundy v. Manchel, 865 A.2d 850, 855 (Pa. Super. 2004) (addressing

the merits of an appellant’s arguments to the extent they were similar to the

questions presented).

       Appellant’s arguments are somewhat confusing, but overarching, so

we will examine them all together. Essentially, Appellant is challenging the

trial court’s decision to dismiss his complaint for a lack of viable causes of

legal action.     He claims there was no legal justification for an agent of

Financial Dimensions to call the police to have the vehicle towed and that

under the doctrine of respondeat superior, Financial Dimensions and the

West    Mifflin   Police   Department    were   responsible   for   his   damages.

Appellant’s Brief at 29, 33-36. Appellant avers that someone from Financial

Dimensions gave him permission to park in Financial Dimensions’ parking lot

and, thus, he suggests he was a licensee and privileged to park there. Id.

at 30-31.    Appellant argues that Financial Dimensions, as possessor of the

land, was subject to liability for harm caused by dangerous conditions

therein. Id. at 31. Appellant proposes that Financial Dimensions “created

its own danger” by: (1) not knowing how long the automobile had been on

its property, and; (2) “erect[ing] signs that were not compliant with the

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private parking lot sign posting law.”    Id.    Appellant claims that because

ultimately he was found not guilty of abandonment of vehicles pursuant to

75 Pa.C.S.A. § 3712, Financial Dimensions lacked authority to call the police

to have the vehicle towed. Id. at 36-39.

      Appellant then challenges the trial court’s reasons for dismissing each

of the individual counts of his complaint. Id. at 39-52.      With regard to the

first count of his complaint, Appellant claims the trial court erred in relying

upon the Motor Vehicle Code in determining that there were no grounds for

a civil action. Id. at 40. He suggests that he should be allowed to amend

this count of the complaint from negligence to “civil conspiracy.” Id. at 41.

With regard to the second count of his complaint, i.e. interference with

business   and   contractual   obligations,   Appellant   claims   that   Financial

Dimensions interfered with “the various contracts on the vehicle held by” his

girlfriend. Id. at 43. Next, in relation to the third count of his complaint,

Appellant argues that the trial court “misconstrued the count as a suggestion

to conversion, when in reality it was trespass.”     Id. at 44. He claims the

trial court erred in determining Financial Dimensions did not have possession

of the car, but that he is, nevertheless, entitled to damages for “emotional

and financial distress, forced payments to attain reversal of the initial

criminal conviction, and largely, for the pain of inconvenience and

embarrassment for publication on the docket as an alleged private parking

lot law violator.” Id. at 44-45. Finally, Appellant maintains that Financial

Dimensions “had to have known it was committing an illegal act of

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converting [] Appellant’s property       under   the   strict   definition [] for

conversion.” Id. at 46.

      Our standard of review is as follows:

      The standard of review of a grant of a motion for judgment on
      the pleadings is limited. A motion for judgment on the pleadings
      will be granted where, on the facts averred, the law says with
      certainty that no recovery is possible. Since this matter presents
      a legal question, the scope of review is plenary.

Dietz v. Chase Home Finance, LLC, 41 A.3d 882, 884 (Pa. Super. 2012).

      “[J]udgment on the pleadings can be awarded on the basis that [an]

appellant[] failed to state a cause of action.”     Aikens v. Baltimore and

Ohio R. Co., 501 A.2d 277, 279 (Pa. Super. 1985) (citation omitted). “If

[an] appellant[] attempt[s] to recover on a theory which is not recognized as

a matter of law, a grant of judgment on the pleadings is proper.” Id.         “In

such case, a trial would surely be a ‘fruitless exercise.’” Id.

      In this case, the trial court concluded:

                                     Count I
      I am dismissing this count because of violations of the provisions
      of the Motor Vehicle Code upon which [Appellant] relies do not
      serve as the basis for a civil damage action.

                                   Count II
      Count II is dismissed because the [c]omplaint does not set forth
      any facts that [Financial Dimensions] was aware of and intended
      to interfere with any contractual relationships.

                                    Count III
      This count fails to    state a cause of action because [Financial
      Dimensions] never     exercised possession of the subject vehicle.
      It was towed at       the direction of the West Mifflin [P]olice
      [Department] and       remained in its possession, custody, or
      control.

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                                  Count IV
      [Appellant] appears to be seeking reimbursement for time and
      money lost in dealing with this matter. There is no case law that
      recognizes this claim.

Trial Court Order and Memorandum, 9/8/2016, at 1-2.

      Based upon our standard of review, our examination of the certified

record, and a survey of applicable law, we conclude that the trial court

properly granted Financial Dimensions’ motion for judgment on the

pleadings and subsequent dismissal of the complaint with prejudice. Upon

review, 75 Pa.C.S.A. § 3712 (abandonment of vehicles), does not contain an

explicit,   per   se,   or   statutory   right   to   recover   damages   for   false

misrepresentations to authorities when vehicles are towed from private

property.     Moreover, in alleging negligence in count I, Appellant failed to

plead or prove that Financial Dimensions owed Appellant a duty.                 See

Bilt-Rite Contractors, Inc. v. The Architectural Studio, 866 A.2d 270,

280 (Pa. 2005) (“[a] cause of action in negligence requires allegations that

establish the breach of a legally recognized duty or obligation that is causally

connected to the damages suffered by the complainant. The primary

element in any negligence cause of action is that the defendant owes a duty

of care to the plaintiff.”).        Here, Appellant has not shown, and our

independent research has not revealed, a duty to a vehicle owner when

supplying facts to the police regarding the removal of a vehicle from private

property.




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      Next, “[o]ne who intentionally and improperly interferes with the

performance of a contract (except a contract to marry) between another and

a third person by inducing or otherwise causing the third person not to

perform the contract, is subject to liability to the other for the pecuniary loss

resulting to the other from the failure of the third person to perform the

contract.” Walnut Street Associates, Inc. v. Brokerage Concepts, Inc.,

982 A.2d 94, 98 (Pa. Super. 2009) (citations omitted).           The necessary

elements of the cause of action are:

      (1) the existence of a contractual relationship between the
      complainant and a third party; (2) an intent on the part of the
      defendant to harm the plaintiff by interfering with that
      contractual relationship; (3) the absence of privilege or
      justification on the part of the defendant; and (4) the
      occasioning of actual damage as a result of defendant's conduct.

Id. (citations omitted). Here, Appellant never alleged facts suggesting that

Financial Dimensions knew who owned the vehicle, or about any existing

contracts pertaining to the vehicle, when it was towed. Moreover, there was

no evidence of an intent to harm or interfere with those contractual

relationships. Financial Dimensions simply asked for a car to be towed off its

private property. There is nothing of record to suggest that its motivation

was to intentionally harm Appellant.

      Appellant claims that the trial court misconstrued the third count of his

complaint, considering it a claim for conversion, rather than an averment for

“trespass upon person and moveable property.”          Appellant’s Brief at 44.

However, his citations to two inapplicable cases from 1795 and 1965, do not


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lend support.    See id. at 44.    Moreover, upon review of count three of

Appellant’s complaint, he alleged that Financial Dimensions “committed

theft” and “exercised unlawful control over [Appellant’s] property with the

intent of depriving him of it.” Complaint, 4/11/2016, at 32, ¶¶ 37-38. As

discussed below, the language in Appellant’s complaint tracks the definition

of conversion. “The classic definition of conversion under Pennsylvania law

is ‘the deprivation of another's right of property in, or use or possession of, a

chattel, or other interference therewith, without the owner's consent and

without lawful justification [and] the exercise of control over the chattel

must    be   intentional.’”   HRANEC     Sheet    Metal,    Inc.   v.   Metalico

Pittsburgh, Inc., 107 A.3d 114, 119 (Pa. Super. 2014) (citation omitted).

Thus, the trial court properly treated the third count of Appellant’s complaint

as sounding in conversion.        Moreover, we agree with the trial court’s

conclusion that Financial Dimensions never possessed the vehicle and,

therefore, did not exercise control over it.       Finally, we note that “the

measure of damages for conversion is the market value of the converted

property at the time and place of conversion[.]”      Lynch v. Bridges & Co.

Inc., 678 A.2d 414, 415 (Pa. Super. 1996).           Thus, Appellant was not

entitled to out-of-pocket expenses or for his time as alleged in count four of

his complaint.

       Finally, as mentioned, at count four of his complaint, Appellant sought

reimbursement for his time and expenses in litigating this matter.         Upon

review of Appellant’s appellate brief, Appellant solely argues that he is

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entitled to damages for conversion. As stated, he would not be entitled to

out-of-pocket expenses or monetary reimbursement of his time under a

theory of conversion. Lynch, supra. Thus, the trial court was correct when

it concluded that there was no case law recognizing Appellant’s final claim.

Moreover, we note that because there are no cognizable causes of action,

Appellant is not entitled to any damages.

      For all of the foregoing reasons, we conclude that the trial court

properly granted judgment on the pleadings in favor of Financial Dimensions

and aptly dismissed Appellant’s complaint with prejudice.

      Finally, we note that Appellant filed an application for relief with this

Court on April 6, 2017. In that filing, Appellant suggests that his damages

in this case total $67,729.57, which exceed the $50,000.00 limit on

arbitration proceedings. Appellant’s Petition to Set Aside Controversy Limit,

4/6/2017, at 3.    However, because we determined that the trial court

properly entered judgment on the pleadings in favor of Financial Dimensions,

there is no controversy, rendering Appellant’s request moot.              See

Warmkessel v. Heffner, 17 A.3d 408, 413 (Pa. Super. 2011) (“If an event

occurs that renders impossible the grant of the requested relief, the issue is

moot[.]”).

      Order affirmed.   Appellant’s petition to set aside judicial controversy

limit for disposition of appeal and judgment denied as moot.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/23/2017




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