The opinion
J-S24033-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEVEN A. GARDNER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JASON B. KAMER : No. 6 WDA 2021
Appeal from the Order Entered November 17, 2020
In the Court of Common Pleas of Butler County Civil Division at No(s):
AD 07-10732
BEFORE: DUBOW, J., KING, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED: SEPTEMBER 16, 2021
Appellant, Steven A. Gardner, appeals pro se from the order entered in
the Court of Common Pleas of Butler County granting Appellee/Defendant
Jason B. Kamer’s Motion for Summary Judgment and dismissing Appellant
Gardner’s action seeking title to real property and damages for breach of
contract. We affirm.
The trial court sets forth the pertinent facts and procedural history as
follows:
In 1992, Plaintiff [hereinafter, “Gardner”] and Dale M. Ruediger
(hereinafter referred to as “Ruediger”) entered into an agreement
regarding the sale of two parcels of land in Cabot, Pennsylvania,
to wit, . . . a 50’ x 125’ lot . . . and [a parcel consisting of] 6.55
acres, located on Railroad Street (collectively referred to as “the
Property”). Amended Complaint, 8/11/2017, at ¶ 1. Gardner
agreed to pay $2,000.00 down and $200.00 per year for a period
____________________________________________
* Former Justice specially assigned to the Superior Court.
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of 10 years to purchase the Property. Id. at ¶ 2. Gardner also
agreed to pay the yearly land taxes. Id.
In 1994, Gardner moved to the property and placed his three (3)
trailers and two (2) trucks on the property, installed electric,
telephone and water service and hooked into the existing sewage
system. Id. at ¶ 3. Gardner also placed other personal property
in the housing, on the land, and within a shed on the land. Id.
Gardner’s personal property included tools, clothes, furniture,
appliances and sporting goods. Id.
In 1995, Gardner was convicted of first degree murder and
sentenced to life imprisonment. Id. at ¶ 4 . . . . Upon
incarceration, Gardner ceased payment of property taxes as well
as payments to Ruediger. Amended Complaint, at ¶ 6; Amended
Complaint, Exhibit 3; Plaintiff’s Brief in Response to Motion for
Summary Judgment at 7.
At EQ 2000-50029, on August 28, 2000, Gardner filed a document
in the nature of a Complaint in Equity captioned: Injunction to
Protect; Property, Land and Evidence, Habeas Corpus ad
Testificandum. On January 4, 2002, a Decree Nisi was entered at
EQ 2000-50029 which denied the injunction and became a Final
Decree thirty (30) days thereafter.
On August 1, 2001, at the Magisterial District Court, default
judgment was entered for Ruediger and against Gardner in the
amount of $8,093.50 for removal of Gardner’s personal property
form the Property. See A.D. 2001-10833.
On May 16, 2005, Ruediger conveyed the Property to Defendant
[Kamer] in consideration of the sum of $29,000.00, and the Deed
was recorded on May 18, 2005, at Instrument No.
200505180012595 of the Butler County Recorder’s Office .
Amended Complaint at ¶ 10 Exhibit 11. A title insurance policy
on the Property was issued to Defendant [Kamer] on May 18,
2005. Response to Second Amended Complaint and New Matter,
9/05/2017, Exhibit B.
At Docket No. A.D. 2006-10047, on January 17, 2006, the Court
of Common Pleas of Butler County denied Gardner’s Motion for
Preliminary Injunction, Temporary Restraining Order, and Motion
to Devoid, Rescind, Strike, and Nullify Recently Transacted
Indenture/Transfer on January 25, 2008.
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...
This action commenced upon Gardner filing a Complaint in Civil
Action on May 9, 2007, naming Ruediger and Kamer as
Defendants. The Honorable Marilyn J. Horan was the judge
originally assigned to the case.
The Complaint was reinstated on August 21, 2007. After almost
two years of inactivity, on September 18, 2009, Gardner filed a
Statement of Intention to Proceed.
Following another period of inactivity, a Statement of Intention to
Proceed was again filed on February 9, 2016 and the Complaint
was reinstated. On May 17, 2016, the court denied a Motion to
Dismiss pursuant to Pa.R.C.P. 233.1, filed on behalf of Defendant
Ruediger. However, in an Order of Court dated December 6,
2016, the court granted Defendant Ruediger’s Motion for
Summary Judgment and dismissed all Gardner’s claims against
Ruediger with prejudice because all applicable statutes of
limitation expired. The court afforded Gardner leave to file an
Amended Complaint against Defendant Kamer.
An Amended Complaint was filed on January 9, 2017. In an Order
of Court entered on March 29, 2017, the court denied Kamer’s
Motion for Judgment of Non Pros.
A second Amended Complaint was filed on April 12, 2017. An
Order of Court entered July 24, 2017, addressing Preliminary
Objections, dismissed all claims in Gardner’s Second Amended
Complaint, and afforded Gardner the opportunity to file a Third
Amended Complaint.
Gardner’s third Amended Complaint was filed on August 11, 2017.
A Response and New Matter were filed by Kamer on September 5,
2017.
This case was assigned to the Honorable Thomas J. in October,
2018. After over two years of inactivity, a Statement of Intention
to Proceed was filed by Gardner on November 21, 2019. Following
a Status Conference on February 14, 2020, the court directed that
the parties take the appropriate actions in accordance with the
Rules of Civil Procedure to move the case forward.
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Kamer filed a Motion for Summary Judgment and Brief in Support
on July 2, 2020. On August 26, 2020, Gardner filed a Response
and Brief in Response. Oral Argument was held on October 6,
2020, with Gardner appearing pro se via video conference and
Attorney Coyer appearing on behalf of Kamer.
Following Oral Argument, this matter was taken under advisement
by the court. Gardner filed an Addendum to his Arguments on
October 16, 2020. [The court, however,] did not consider the
Addendum to Gardner’s Arguments, filed on October 16, 2020, as
it was received untimely.
TCO, 11/16/20, at 1-5.
On November 16, 2020, the court issued its Memorandum Opinion and
Order granting Kamer’s Motion for Summary Judgment and dismissing
Gardner’s Second Amended Complaint, with prejudice. Specifically, the court
first determined that Defendant Kamer was a bona fide purchaser for value
for purposes of Pennsylvania’s recording statute, 21 P.S. § 351, as he did not
have actual or constructive notice of any prior equitable interest in the
property and paid $29,000.00, thereby fulfilling the requirement of giving
value for the land.
In making this finding, the court observed:
It is undisputed that, at the time of the conveyance of the Property
to Kamer, there was not a deed, conveyance, contract, or other
instrument of writing recorded with the Butler County recorder of
deeds wherein there was the intention of Ruediger selling or
conveying the land to Gardner. Moreover, no written contract
between Ruediger and Gardner was ever produced in this action.
Kamer performed due diligence by having a title search conducted
on the Property prior to the conveyance. The title search did not
reveal any defects or encumbrances on the title. Although there
was prior litigation concerning the property, the actions . . . were
concluded prior to the conveyance of the Property to Kamer.
Whether or not a shed was on the Property at the time of
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conveyance is irrelevant because existence of the same does not
equate to actual or constructive notice of a prior equitable
interest.
TCO, at 7.
The second finding informing the court’s determination was that Gardner
could not enforce his claim against Kamer’s title to the Property under the
Statute of Frauds where Gardner could produce neither a written agreement
as required under the statute nor an applicable exception to this requirement.
The court noted Gardner’s references to written instruments recording
a schedule of payments made and endorsed checks, and understood them to
be in the nature of an article of agreement or lease with an option to purchase
with a portion of each rent payment reducing the outstanding balance of the
purchase price. It concluded, however, that even when accepting them as
true for the sake of argument, Gardner not only never brought the purchase
agreement to completion, he also had neither made any payment under the
alleged agreement since 1995 nor been in possession of the property since his
incarceration in 1995.
To Gardner’s claim that the Property was clearly not vacant due to the
presence of a utility shed, a shed serving as a pumphouse for a well, and
utility entrances on a service pole on the property, the court responded that
Ruediger had removed all Gardner’s personal property from the Property in
2001, and possession of the property for the past 25 years is not established
by the presence of such items. As such, the court concluded, the Statute of
Frauds applies, without applicable exception, to bar Gardner’s claim to title.
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The court’s third basis for granting summary judgment in favor of Kamer
was the unenforceability of Gardner’s personal property claims under the
applicable statute of limitations. There is a two-year limitations period on
actions “for taking, detaining or injuring personal property, including actions
for specific recovery thereof.” 42 Pa.C.S.A. § 5524. On August 1, 2001, the
Magisterial District Court entered a default judgment for $8,093.50 in favor of
Ruediger and against Gardner for removal of Gardner’s personal property from
the Property. The court noted that the present action did not commence until
over six years later, on May 9, 2007 and was therefore time-barred.
Finally, the court addressed Kamer’s position that there was no factual
basis for Gardner’s breach of contract claim in the amount of $50,000.00
against Kamer because Kamer was not a party to any agreement between
Ruediger and Gardner and, therefore, may not be held liable for damages
arising from a breach of such agreement.
Accordingly, consistent with its Memorandum Opinion and Order, the
lower court entered Judgment for Kamer on November 17, 2020. This pro se
appeal followed, in which Gardner presents the following questions for this
Court’s consideration:
1. Was it Trial Court error to rule that Plt.’s Addendum to Plaintiff’s
Arguments concerning the October 6, 2020 hearing was filed
untimely?
2. As Plaintiff has sufficient showings that a genuine dispute of
material facts exists on Plaintiff’s Property Claim/Land Rights
to the ‘Property-In-Dispute’, was it Trial Court error to Dismiss
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Plaintiff’s Amended Complaint W/Exhibits in support, and to
grant the Defendant a summary judgment in def.’s favor?
3. As the Trial Court and Defendant WAIVED upon an issue(s) that
might arise within Appellee’s Briefs, after this Appellant’s
review; would it be appropriate for Appellant to further respond
to this Appellate Court; [I]f the known about issue(s) arises?
Appellant’s brief, at 4 (verbatim).
Our standard of review of an order granting or denying a motion for
summary judgment is well-settled:
We view the record in the light most favorable to the nonmoving
party, and all doubts as to the existence of a genuine issue of
material fact must be resolved against the moving party. Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Our scope of review of
a trial court's order granting or denying summary judgment is
plenary, and our standard of review is clear: the trial court's order
will be reversed only where it is established that the court
committed an error of law or abused its discretion.
Good v. Frankie & Eddie's Hanover Inn, LLP, 171 A.3d 792, 795 (Pa.
Super. 2017) (citing Hall v. CNX Gas Co., LLC, 137 A.3d 597, 601 (Pa. Super.
2016) (citation omitted)).
Upon review of Gardner’s brief, we construe his issues to coalesce into
the argument that his wrongful conviction of first-degree murder, which
rendered him unable to continue payments under his written agreement with
Ruediger, qualifies as an “unforeseen event” under the agreement with
Ruediger that may not be used to initiate default proceedings against him. It
follows under his logic that all subsequent rulings culminating with the
judgment at issue in the present appeal are invalid. We disagree.
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Specifically, Gardner begins by arguing against the trial court’s finding
that his “Addendum to Argument,” which the court received on October 16,
2020 ten days after the hearing on Kamer’s Motion for Summary Judgment,
was untimely. Gardner maintains that at the conclusion of the October 6,
2020 hearing, the court advised him, “If you have anything further, forward
it to this Court immediately.” Appellant’s brief, at 9. Gardner avers he
delivered his “Addendum to Argument” to prison authorities on October 9,
2020, and the lower court received his Addendum on October 16, 2020.
Under the prisoner mailbox rule, he maintains, his Addendum should
have been credited as received by the court on October 9, 2020, just three
days after the hearing. Nevertheless, the court indicated in its Opinion and
Order of November 16, 2020, that it declined to accept the Addendum for
reasons of untimeliness.
According to Gardner, the purpose of his Addendum was to “bring[]
pertinent factors addressing the fact that [Kamer’s] own EXHIBITS clearly
show that a perpetrated FRAUDULENT CONVEYANCE took place between
[Kamer’s] Predecessor-in-Deed; Dale M. Ruediger and Defendant; Jason
Kamer. The Addendum also contains a (possible) SETTLEMENT that could
appease both parties involved (i.e. Pa.R.C.P. Rule 1560, Partition of Land).”
Appellant’s brief, at 9.
We discern no reason to disturb the lower court’s ruling in this regard.
While Gardner attempts to substantiate his allegation with an explanation of
what these “pertinent factors” are and how Kamer’s exhibits “clearly show”
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that the conveyance between Ruediger and Kamer was fraudulent, he fails to
explain how he was precluded from offering his insights into Kamer’s exhibits
at the hearing, nor does he make a plausible case that he incurred prejudice
as a result of the court’s ruling.
Indeed, Gardner’s core argument with respect to Kamer’s exhibits is
that they contain the 1992 agreement between Ruediger and himself which
includes the stipulation that Gardner, the buyer, cannot be deemed to have
reneged or defaulted on the deal “if it’s for some reason(s) that [Gardner]
(the buyer) can’t foresee or that I don’t have any control over.”
Gardner contends his sentence of life imprisonment comes within the
scope of this clause as he neither foresaw nor had any control over his
attacker’s attempts to kill him and, therefore, was justified in protecting
himself by a self-defense shooting in his own residence. Because, he says,
the jury wrongfully found him guilty, the terms of the agreement preclude
finding him in default, such that he retains rightful title under the agreement.
Appellant’s brief, at 10-11.
It is the continued existence and enforceability of this agreement,
therefore, that strips Kamer of his status as a bona fide purchaser of the
Property, Gardner argues. Moreover, Gardner devotes the remainder of his
brief to relitigating the significance of various rulings of the courts from 2001
to the present, and he comes to the conclusion that Ruediger was barred from
selling the Property to Kamer.
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We reject in its entirety Gardner’s absurd theory that his conviction for
first-degree murder—and the consequential inability to maintain payments on
the Property—was an unforeseeable event under terms of the agreement that
preclude entering default judgment against him. It follows that Gardner may
not defeat Kamer’s status as a bona fide purchaser by claiming the
enforceability of this agreement. In all other respects, to the extent Gardner
argues Kamer had actual or constructive notice of Gardner’s rights, we concur
with the lower court’s rationale and conclusion, discussed supra, discrediting
these arguments.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/16/2021
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