J-S42018-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAHEEM JONES                                      IN THE SUPERIOR COURT
                                                            OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

DEBORAH BOHN

                                                      No. 165 MDA 2017


             Appeal from the Order Entered December 21, 2016
            In the Court of Common Pleas of Lackawanna County
                     Civil Division at No(s): 2016-03018


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY MOULTON, J.:                      FILED NOVEMBER 28, 2017

      Raheem Jones appeals, pro se, from the December 21, 2016 order of

the Lackawanna County Court of Pleas denying Jones’ motion to dismiss the

preliminary objections filed by Deborah Bohn and dismissing Jones’ amended

complaint. We affirm.

      The trial court summarized the factual and procedural history of this

case as follows:
            On May 16, 2016, [Jones] filed this declaratory and civil
         action against [Bohn] for alleged violations of the
         Wiretapping and Electronic Surveillance Control Act, 18 Pa.
         C.S.A. § 570 et seq. Specifically, Jones . . . averred that on
         March 24, 2016, . . . Bohn hacked into [Jones’] Facebook
         account and began harassing Nia Malik Bostick (the mother
         of [Jones’] son) via Facebook messaging on [Jones’]
         account. [Jones] maintains that he did not share his
         Facebook password with [Bohn] or any other person or
         entity, and never gave [Bohn] or any other person or entity
         permission to access his account. [Jones] filed this action
         setting forth twelve separate violations of various
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           Pennsylvania laws, and sought declaratory relief as well as
           damages amounting to a total of $36,000.00. [Bohn] filed
           Preliminary Objections to the Complaint, and then [Jones],
           on July 21, 2016, filed an Amended Complaint. On July 26,
           2016, [Bohn] filed a second set of Preliminary Objections,
           this time to the Amended Complaint, and the following
           month, [Jones] filed a Motion to Dismiss Preliminary
           Objections.

              According to [Bohn], there is an agreement between
           [Jones], [Bohn], and the District Attorney’s Office of
           Lackawanna County pursuant to a negotiated plea between
           the District Attorney and [Jones] in Central Court wherein
           [Jones] agreed he would not initiate a civil action against
           [Bohn] as part of the terms and provisions of the plea
           bargain. [Jones’] cause of action, according to . . . Bohn,
           should be dismissed pursuant to the agreement reached by
           the parties in [Jones’] prior criminal matter.

Trial Ct. Op., 12/28/16, at 1-2 (unpaginated) (emphasis omitted).

       The trial court held a hearing on the preliminary objections and Jones’

motion to dismiss on November 22, 2016. Jones, acting pro se, testified on

his own behalf, and Bohn presented the testimony of Assistant District

Attorney (“ADA”) Catherine Tully, who prosecuted Jones in the criminal matter

and participated in the plea negotiations.1 ADA Tully testified that as part of
____________________________________________


       1 Although neither party raises this issue on appeal, we are compelled
to note a significant irregularity with regard to the November 22, 2016
“hearing.” In its opinion, the trial court referred to the parties’ on-the-record
statements as “testimony.” However, the trial court did not administer an
oath to either ADA Tully or Jones before they testified about the circumstances
surrounding the entry of the plea agreement. Pennsylvania Rule of Evidence
603 provides, “Before testifying, a witness must give an oath or affirmation to
testify truthfully. It must be in a form designed to impress that duty on the
witness’s conscience.” Pa.R.E. 603. Our Court has explained that “[w]ithout
an administration of an oath to a witness, the taking of testimony is
meaningless.” Tecce v. Hally, 106 A.3d 728, 731 (Pa.Super. 2014) (quoting
Commonwealth ex rel. Freeman v. Superintendent of State Corr. Inst.,


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the negotiated plea, Jones orally agreed not to file any future civil actions

against Bohn, the complainant in Jones’ criminal matter.2 Bohn also admitted

into evidence the transcript of a June 17, 2016 Grazier3 hearing, during which

Jones, his counsel, and ADA Tully referenced the terms of the plea agreement,

including the agreement not to sue. At the Grazier hearing, Jones’ counsel

stated:
               There was an offer from the Commonwealth, wherein,
            the criminal charges were reduced to two disorderly
            conducts, misdemeanors of the third degree.




____________________________________________


242 A.2d 903, 908 (Pa.Super. 1968)). In Tecce, we stated that “[t]he lack
of an oath means that there was no testimony.” Id. Without testimony, there
is “no record evidence upon which the trial court could support its order” and
no basis “upon which any credibility determination could be made.” Id.

       In this case, the trial court made factual findings and credibility
determinations based on statements that were not “testimony” as described
by our analysis in Tecce, which was error. See id. at 732. However, Jones
failed to object to this procedural defect at the hearing or raise this issue on
appeal. Therefore, he has waived this claim. See id. (“Pennsylvania’s
appellate courts have held, without apparent exception, that the failure to
object to unsworn testimony subjects a litigant to waiver.”); Pa.R.A.P. 302(a).
That Jones has represented himself throughout these proceedings is
immaterial to our waiver finding. See Commonwealth v. Adams, 882 A.2d
496, 498 (Pa.Super. 2005) (“[A]ny 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.”). Because Jones has waived
any challenge to the trial court’s characterization of the November 22, 2016
proceeding, we will likewise refer to the proceeding as a “hearing” and to the
evidence presented as “testimony.”

       On April 5, 2016, Jones pled guilty to two third-degree misdemeanors
       2

before a magisterial district judge. The plea proceeding was not transcribed.

       3   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
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            In exchange for that plea, there was discussion that Mr.
         Jones would not pursue any other avenues, criminally or
         civilly against the victim.

            And what I discussed with [Jones] is that I believed,
         based on that, that we had a better chance in coming before
         this Court on a petition for work release . . . .

            In our discussion, Mr. Jones and I agreed that that would
         be the course of action to follow.

N.T., 6/17/16, at 11-12. ADA Tully also referenced the agreement not to sue,

id. at 27, to which Jones responded, “[W]hen we actually had the hearing

. . ., the Commonwealth requested that the Judge make that a stipulation.

And the Judge clearly stated that it was not allowed to do that. So, I did not

agree to not pursue any civil action against Miss Bohn,” id. at 28. Defense

counsel then stated, “I believe what [ADA Tully] is saying, the agreement in

the criminal case[] is that it would be two M3s, with a sentence of time served,

[and Jones] would not pursue any criminal[] [or] civil actions further against

[Bohn] in that case.” Id. at 30.

      On December 21, 2016, the trial court denied Jones’ motion to dismiss

the preliminary objections and dismissed Jones’ amended complaint. Jones

timely appealed to this Court.

      On appeal, Jones presents one question for our review:
            Did the trial court abuse its discretion when it misapplied
         the law, inter alia, in dismissing [Jones’] Amended
         Complaint and all causes of action within absent any legally
         competent evidence of a valid written or oral “agreement
         not to sue” as analy[z]ed under the standards pronounced
         by Employers Liability Assurance Corp. v. Greenville
         Business Men’s [Ass’n], 224 A.2d 620 (Pa. 1966)?

Jones’ Br. at 5.


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      Our standard of review of an order sustaining “preliminary objections is

to determine whether the trial court committed an error of law.” Freundlich

& Littman, LLC v. Feierstein, 157 A.3d 526, 530 (Pa.Super. 2017). We

must accept as true all material facts pled in the complaint, as well as all

reasonable inferences therefrom. Id. “Preliminary objections [seeking] the

dismissal of a cause of action should be sustained only in cases in which it is

clear and free from doubt that the [plaintiff] will be unable to prove facts

legally sufficient to establish the right to relief.” Id. (quoting Richmond v.

McHale, 35 A.3d 779, 783 (Pa.Super. 2012)).

      Jones first asserts that Bohn failed to comply with Pennsylvania Rule of

Civil Procedure 1019(i) because she did not attach to her preliminary

objections a copy of the alleged agreement not to sue. We disagree. Rule

1019(i) requires that an agreement upon which a pleading is based be

appended to the pleading only if the agreement is written. See Pa.R.C.P.

1019(i). Here, ADA Tully explained that the agreement not to sue was part

of the oral plea negotiations and was stated on the record at the plea

proceeding:
           [W]e offered [Jones] two M-3’s with those stipulations,
         which is there would be no civil suits either way and no
         additional charges for anything that either party could have
         done up to date that we were in court.

                                     ...

            So the plea offer was conveyed to [defense counsel]. He
         went back privately, spoke to Mr. Jones, came back, said
         the terms were acceptable.        While we were before
         Magistrate [Paul] Ware, I laid out all of these terms.
         [Defense counsel] concurred. Mr. Jones was nodding his

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         head in affirmance of what the plea offer was. The plea was
         accepted by Magistrate Ware.

N.T., 11/22/16, at 13-14. Therefore, because the agreement not to sue was

oral, Bohn was not required to attach a copy of the agreement to her

preliminary objections.

      Next, Jones asserts that the trial court erred in concluding that an

agreement not to sue existed because Bohn failed to present competent

evidence of such an agreement. After considering the testimony presented at

the hearing by ADA Tully and Jones, as well as the transcript of the prior

Grazier hearing, the trial court concluded:
         [ADA Tully’s] very clear recollection is that [Jones] and
         [Bohn] have a long and problematic relationship history,
         and that the reaching of a plea agreement was the
         culmination and ending of that history and the problems that
         arose therein. While [Jones] disputed the testimony of [ADA
         Tully], he was unable to point to any evidence of a different
         plea agreement, one which did not disallow the continued,
         repetitive filing of civil actions concerning internet hacking
         and stalking by [Jones] against [Bohn]. The Court found
         credible the testimony of the [ADA], who had no interest or
         stake in the antagonistic, litigious relationship between
         [Jones] and [Bohn]. We currently rule that, due to the
         agreement reached by the parties in regard to the previous
         criminal charges against [Jones], the Amended Complaint
         and the causes of action contained therein should be
         dismissed pursuant to the plea bargain reached by [Jones]
         and the Commonwealth that [Jones] would not initiate any
         more civil actions against [Bohn] concerning Facebook
         activity.

Trial Ct. Op., 12/28/16, at 2 (unpaginated). We conclude that the evidence

credited by the trial court established that, as part of the plea negotiations in

his criminal case, Jones agreed not to file any civil actions against Bohn

relating to Facebook activity.   Accordingly, the trial court properly denied

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Jones’ motion to dismiss the preliminary objections and dismissed his

amended complaint.4

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/28/2017




____________________________________________


       4Jones devotes the remainder of his brief to contesting the validity of
the agreement not to sue on several grounds. To the extent Jones is
challenging the terms of his negotiated plea agreement with the
Commonwealth or his counsel’s ineffectiveness during the plea negotiations,
such matters are not properly before this Court. See Commonwealth v.
Duffey, 639 A.2d 1174, 1177 (Pa. 1994) (recognizing that defendant cannot
attempt to withdraw his criminal guilty plea in civil proceeding). Moreover,
Jones’ reliance on Employers Liability Assurance Corp. v. Greenville Bus.
Men’s Ass’n, 224 A.2d 620 (Pa. 1966), is misplaced. Employers Liability
involved the requirements for enforcement of an exculpatory clause in a civil
contract and is inapplicable to the enforcement of the terms of a negotiated
plea agreement in a criminal matter.
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