Smolsky, R. v. Gale, D.

J-S29033-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RAYMOND JOSEPH SMOLSKY : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DAWN E. GALE : No. 2872 EDA 2016
Appeal from the Order Entered August 12, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2013-05846
BEFORE: LAZARUS, SOLANO, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED MAY 26, 2017
Raymond Joseph Smolsky (“Appellant”), appeals from the order
entered by the Court of Common Pleas of Bucks County granting Dawn
Gale’s (“Appellee”) motion for summary judgment and dismissing Appellant’s
civil complaint. We affirm.
The trial court aptly summarizes the procedural and factual history of
the case as follows:
On July 31, 2013, Appellant filed a Complaint against Appellee
for violating Appellant’s “inherent rights of mankind” under
Article I, Section 1 of the Pennsylvania Constitution[,] . . . for
actions arising out of the care of Appellant’s now-deceased
father, who suffered from dementia. Complaint 07/31/13, ¶¶ 1[,
9-12, 14,] 19; Defendant’s Motion for Summary Judgment, ¶ 8.
Though no oral testimony occurred, Appellant averred the
following in his Complaint and his Answer to Appellee’s New
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S29033-17
matter: (1) while Appellant cared for Appellant’s father, she
screened his calls out of jealousy of their father-son relationship;
(2) Appellee refused to allow a neighbor, with Appellant’s Power
fo Attorney, into Appellant’s father’s home; (3) Appellee
instructed the hospice nurses to not answer calls from the
Appellant’ (4) Appellee treated Appellant’s father poorly out of
spite; (5) Appellee ignored Appellant’s phone calls because
Appellee was engaging in an extramarital affair with one of the
hospice nurses in the home; and (6) Appellee fraudulently
claimed Appellant has been calling her residence, not Appellant’s
father’s residence. Complaint 7/13/13, ¶¶ 9-12, 14-18.
Appellee averred that due to the Appellants’ now deceased
father’s dementia, speaking with his son on the telephone upset
him because he did not understand [with] who[m] he was
speaking []. Defendant’s Motion for Summary Judgment, ¶ 8;
Defendant’s Answer to Plaintiff’s Complaint Together with New
Matter 2/7/14, ¶ 12-13. Appellee averred Appellant has not
resided in the home he claims as his domicile, in the twenty-five
(25) years due to incarceration.1 Defendant’s Answer to
Plaintiff’s Complaint Together with New Matter. 2/7/14, ¶ 6.
1
Appellant was sentenced to a twenty-two-and-a-half (22.5) to
forty-five (45) year sentence for corruption of minors,
involuntary deviate sexual intercourse and rape.
***
To provide more context of what [Plaintiff/]Appellant is actually
claiming, [the trial court] includes the “Summary of Claims”
outlined by Appellee in his Complaint:
The Plaintiff avers that the Plaintiff’s most-cherished
inherent rights of mankind Article I. [sic] Section 1.
[sic] By the Constitutioan of the Commonwatlh of
Pennsylvania, is [sic] being [sic] violated and
Plaintiff’s most-cherished of [sic] loving rights of his
Father-Son sharing of [sic] their enjoyments of
natural senior-years of life and happiness together,
is [sic] wantonly and recklessly purposefully being
interfered with by the Defendant in order to deprive
the Plaintiff these human rights and cause ot the
Plaintiff extreme anxieties, harms, annoyance,
harassment and alarm, by the Defendant’s fraud,
-2-
J-S29033-17
envy, lust and greed, through, among other things,
hatred of this relationship, to sabotage it and to
come between Father and Son’s last-years [sic]
together on earth [sic] for Defendant’s personal
greater freedoms and gain, without legal authority to
do so, to deprive to [sic] the Plaintiff these all
important and most-cherished human immediate
[sic] family and other rights by committing these
acts complained about herein, as pled, that warrant
relief.
***
On August 28, 2013, the [trial court] approved Appellant’s in
forma pauperis application. The Sheriff’s Office received a
request for service from Appellant on January 8, 2014, and
served Appellee on January 13, 2014. On February 7, 2014,
Appellee filed an Answer to Appellant’s Complaint along with a
New Matter. Appellant filed an answer to Appellee’s New Matter
on March 13, 2014. Appellee moved for a Judgment on the
Pleadings on May 6, 2014.
On May 27, 2014, Appellant filed an Answer to Appellee’s
Judgment on the Pleadings in conjunction with a Motion for
Summary Judgment. Appellee answered Appellant’s Motion for
Summary Judgment on June 26, 2016, and Appellant praecipied
the issue. [The trial court] denied Appellant’s Motion for
Summary Judgment on May 27, 2015. Appellee then filed a
Motion for Summary Judgment on February 23, 2016, which the
Court granted on August 16, 2016, after it was praecipied.
Appellant filed a Notice of Appeal to Superior Court on November
9, 2016.
Trial Court Opinion, filed 11/14/16, at 1-2.
In Appellant’s court-ordered Pa.R.A.P. 1925(b) concise statement of
errors complained of on appeal, he made the following assertions:
1. The lower court deprived to the Plaintiff due process under
law and access to the court by mischaracterizing the
Complaint facts. Secured under Article I, [sic] Section II [sic]
Courts to be Open [sic] to hear all claims under the
Pennsylvania Constitution. Where “the record” explicitly
reflects genuine issues of material fact in dispute.
-3-
J-S29033-17
2. Thereby abusing it’s [sic] discretion, erring as a matter of
law, showed bias or ill-will with prejudice towards the Plaintiff,
while showing favoritism to the Defendant, and granting
summary judgement [sic] to the Defendant in conflict with
the Complaint [sic] well pled record facts that also sought
“liberal construction” as a pro se litigant besides monetary
relief.
Appellant’s Pa.R.A.P. 1925(b) statement, 10/20/16. In response, the trial
court authored a Rule 1925(a) opinion in which it denies mischaracterizing
the Complaint facts and rejects the Complaint’s assertion that Article I, § 1
of the Pennsylvania Constitution supports a cause of action against private
individuals. Trial Court Opinion, at 6. In the alternative, the court indicated
it would deny Appellant’s claim because “money damages are inappropriate
for violations of the Pennsylvania Constitution such as this.” Id. (citing
Jones v. City of Philadelphia, 890 A.2d 1188, 1208 (Pa. Commw. 2006).
Our standard of review of an order granting a motion for summary
judgment is well-settled:
We view the record in the light most favorable to the non-
moving 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.
Daley v. A.W. Chesterton, Inc., 37 A.3d 1175, 1179 (Pa. 2012) (citation
omitted).
-4-
J-S29033-17
In Appellant’s pro se brief, he maintains that the court erroneously
granted summary judgment based on its mischaracterization of the facts
pled and apparent misapprehension of the causes of action maintained in his
complaint. Our review of his complaint, however, belies his charge, as the
complaint invokes the court’s jurisdiction over matters involving “inherent
rights of mankind under Section 1 of the Constitution of the Commonwealth
of Pennsylvania[,]” and it states one claim, under its section entitled
“Summary of Claims,” asserting that Appellee violated Appellant’s “most-
cherished inherent rights of mankind Article I. Section 1. by the Constitution
of the Commonweatlh of Pennsylvania[.]” Appellants’ Complaint at 1, 5.
We, therefore, reject the predicate to Appellant’s assertion on appeal.
In that vein, after careful review of the record, party briefs, and the
trial court’s Rule 1925(a) opinion, we discern no error with the trial courts’
reliance on decisional law recognizing no cause of action for money damages
under Article I, § 1 of the Pennsylvania Constitution. Accordingly, we adopt
the rationale of the trial court in deciding this matter.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2017
-5-
Circulated 05/15/2017 10:41 AM
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL ACTION-LAW
RAYMOND JOSEPHSMOLSKY No. 2013-05846
DAWNE.GALE
v.
1 1 ~~~il~illl 1 1
Case#: 2013-05846 809
Code: 5214 Judge:34
11447584
Patricia L. Bachtle, Bucks County Prothonotary
Rcpt: 21645798 11114/2016 8:15:19 AM
OPINION
_,
Plaintiff Raymond Joseph Smolsky (hereinafter "Appellant") appeals this Court' s·August
16, 2016, Order granting Dawn E. Gale's (hereinafter"Appellee") Motion for Summary Judgment.
We file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
PROCEDURAL HISTORY
On July 31, 2013, Appellant filed a Complaint against Appellee for violating Appellant's
"inherent rights of mankind" under Article I, Section I of the Pennsylvania Constitution.
Complaint 07/31/13, 11, 19. On August 28, 2013, the Court approved Appellant's in forma
pauperis application. The Sherriff's Office received a request for service from Appellant on
January 8, 2014, and served Appellee on January 13, 2014. On February 7, 2014, Appellee filed
an Answer to Appellant's Complaint along with a New Matter. Appellant filed an answer to
Appellee's New Matter on March 13, 2014. Appellee moved for a Judgment on the Pleadings on
May 6, 2014.
On May 27, 2014, Appellant filed an Answer to Appellee's Judgment on the Pleadings in
conjunction with a Motion for Summary Judgment. Appellee Answered Appellant's Motion for
Summary Judgment on June 26, 2016, and Appellant paecipie'd the issue. This Court denied
Appellant's Motion for Summary Judgment on May 27, 2015. Appellee then filed a Motion for
Summary Judgment on February 23, 2016, which the Court granted on August 16, 2016, after it
was praecipie'd. Appellant filed a Notice to Appeal to Superior Court on November 9, 2016.
BACKGROUND
Appellant sued Appellee, his niece, for actions arising out of the care of Appellant's now-
deceased father, who suffered from dementia. Complaint 7/31/13, ~1, 9-12, 14; Defendant's
Motion for Summary Judgment,~ 8. Though no oral testimony occurred, Appellant averred the
following in his Complaint and his Answer to Appellee's New Matter: (1) while Appellee cared
for Appellant's father, she screened his calls out of jealousy of their father-son relationship; (2)
Appellee refused to allow a neighbor, with Appellant's Power of Attorney, into Appellant's
father's home; (3) Appellee instructed the hospice nurses to not answer calls from the Appellant;
( 4) Appellee treated Appellant's father poorly out of spite; (5) Appellee ignored Appellant's phone
calls because Appellee was engaging in an extramarital affair with one of the hospice nurses in the
home; and (6) Appellee fraudulently claimed Appellant has been calling her residence, not
Appellant's father's residence. Complaint 7/31/13, ~ 9-12, 14-18.
Appellee averred that due the Appellant's now deceased father's dementia, speaking with
his son on the telephone upset him because he did not understand who he was speaking with.
Defendant's Motion for Summary Judgment, ~ 8; Defendant's Answer to Plaintiff's Complaint
Together with New Matter 2/7/14, ~ 12-13. Appellee averred Appellant has not resided in the home
he claims as his domicile, in the twenty-five (25) years due to incarceration.1 Defendant's Answer
to Plaintiff's Complaint Together with New Matter 2/7/14, 9i[ 6.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
1
Appellant was sentenced to a twenty-two-and-a-half (22.5) to forty-five ( 45) year sentence for corruption of
minors, involuntary deviate sexual intercourse and rape.
2
On October 4, 2016, this Court issued a 1925(b) Order directing Appellant to file a Concise
Statement of Errors within twenty-one (21) days. Appellant submitted his timely Statement of
Errors on October 20, 2016, which raised the following issues, verbatim:
1. The lower Court deprived to the Plaintiff due process under law and access to the court
by mischaracterizing the Complaint facts. Secured under Article I. [sic] Section 11.
[sic] Courts to be Open [sic] to hear all claims under the Pennsylvania Constitution.
Where "the record" explicitly reflects genuine issues of material fact in dispute.
2. Thereby abusing it's discretion, erring as a matter of law, showed bias or ill-will with
prejudice towards the Plaintiff, while showing favoritism to the Defendant, and
granting summary judgement [sic] to the Defendant in conflict with the Complaint [sic]
well pled record facts that also sought "liberal construction" as a pro se litigant besides
monetary relief.
To provide more context of what Appellant is actually claiming, we also include the "Summary of
Claims" outlined by Appellee in his Complaint:
The Plaintiff avers that the Plaintiffs most-cherished inherent rights of mankind
Article I. [sic] Section 1. [sic] By the Constitution of the Commonwealth of
Pennsylvania, is [sic] being [sic] violated and Plaintiff's most-cherished of [sic]
loving rights of Father-Son sharing of [sic] their enjoyments of natural senior-years
of life and happiness together, is [sic] wantonly and recklessly purposefully being
interfered with by the Defendant in order to deprive the Plaintiff these human rights
and cause to the Plaintiff extreme anxieties, harms, annoyance, harassment and
alarm, by the Defendant's fraud, envy, lust and greed, through, among other things,
hatred of this relationship, to sabotage it and to come between Father and Son's
last-years [sic] together on earth [sic] for Defendant's personal greater freedoms
and gain, without legal authority to do so, to deprive to [sic] the Plaintiff these all
important and most-cherished human immediate [sic] family and other rights by
committing these acts complained about herein, as pled, that warrant relief.
ANALYSIS
As a threshold matter, we note merely filing "a timely Pa.R.A.P. 1925(b) statement does
not automatically equate with issue preservation." Tucker. v. R.M. Tours, 939 A.2d 343, 346
(Pa.Super. 2007). The Superior Court made clear that "Pa.R.A.P. 1925(b) is not satisfied by simply
filing any statement. Rather, the statement must be 'concise' and coherent as to permit the trial
court to understand the specific issues being raised on appeal." Id.; see also Pa.R.A.P.
3
1925(b )( 4 )(ii) ("The Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for the judge").
Appellant's Complaint and Statement of Errors Complained of on Appeal do not
coherently state a concise claim for the court. In an attempt to tease out the issues, it appears
Appellant is appealing this Court's ruling granting Appellee's motion for summary judgment by
stating a portion of the legal standard on appeal in his 1925(b) filing. Appellant's Complaint
purportedly arises from Article I, § 1 of the Pennsylvania Constitution, as such, we begin by
discussing the construction of Article I, § 1, then addressing the standard of review on a summary
judgment appeal.
The Pennsylvania Constitution empowers the "Legislature to enact all laws which are not
forbidden by its letter or spirit" meaning all powers reside in the state but for those denied to it.
Commonwealth v. Wormser, 103 A. 500, 501 (Pa. 1918). A basic function of the American system
of government is that the power rests in its people and that maxim is present in Article I - "Article
I does not restrain the power of the people, it retrains the government structure that the people have
created." Gondelman v. Commonwealth, 554 A.2d 896, 904-05 (Pa. 1989). In addition to
protecting individuals from the government, Article I of the Pennsylvania Constitution specifically
lists the powers denied to the state. Pa. Const. art. I, § 25; see generally Pa. Const. art. I, § 1-24.
Article I § 1 of the Pennsylvania Constitution is as follows:
§ 1. Inherent rights of mankind
All men are born equally free and independent, and have certain inherent
and indefeasible rights, amongd with are those of enjoying and defending life and
liberty, of acquiring, possessing and protecting property and reputation, and of
pursuing their own happiness.
Pa. Const. art. I, § 1. The language of this Section protects a citizen's right to the enjoyment of
private property whilst thwarting any governmental interference as circumscribed by the Fifth and
4
Fourteenth Amendments to the United States Constitution. Township of Exeter v. Zoning Board
of Exeter Township, 962 A.2d 653 (Pa. 2009). A basic tenant of our state constitutional
jurisprudence "is that the provisions of Article I of the Pennsylvania Constitution are intended to
govern only the actions of the state government." Dillon v. Homeowner's Select, 957 A.2d 772,
776 (Pa. Super. 2008).
Under the Pennsylvania Rules of Civil Procedure 1035.2, summary judgment may be
rendered as a matter of law:
(1) whenever there is no genuine issue of material fact as to a necessary element of
the cause of action or defense which could be established by additional discovery
or expert report; or
(2) if after the completion of discovery relevant to the motion ... an adverse party
who will bear the burden of proof at trial has failed to produce evidence of facts
essential to the cause of action or defense which in a jury trial would require the
issues to be submitted to a jury.
Summary judgment is appropriate when the moving party establishes that the case is free and clear
of doubt, that there are no genuine issues of material fact and the moving party is entitled to relief
as a matter oflaw. Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010). The burden is on the
moving party but it has long been recognized that summary judgment should be granted to the
movant unless the opposing party offers competent evidence, which would be admissible at trial,
showing that there is genuine issue as to a material fact which would warrant submitting the case
to the trier of fact. Community Medical Services of Clearfield, Inc. v. Local 2665, 437 A.2d 23,
27 (Pa. Super. 1981); see also Godlewski v. Pars Manufacturing Co., 597 A.2d 106 (Pa. Super.
1991) (moving defendant "may point to materials indicating that the plaintiff is unable to satisfy
an element of his cause of action"); Roland v. Kravco, Inc., 513 A.2d 1029, 1033 (Pa. Super. 1986)
(quoting Tom Morello Construction v. Bridgeport Federal Savings and Loan Association, 421
A.2d 747, 750 (Pa. Super. 1980)) (holding the non-moving party must show a genuine issue of
5
material fact exists through evidence of specific facts). The nction of the court is to examine the
record in the light most favorable to the non-moving party a d accept as true all well-pleaded facts
in the pleadings together with all reasonable inferences there from favoring the non-moving party.
Ryan v. Asbestos Corp. Ltd., 829 A.2d 686 (Pa. Super. 200 ).
The scope of review of an order granting or den ing summary judgment is plenary.
Universal Teleservices Arizona LLC v. Zurich American I s. Co., 879 A.2d 230, 232 (Pa. Super.
2005). The well-established standard of review demonstrat s that "the trial court's order will be
reversed only where it is established that the court com itted an error of law or abused its
discretion." Universal Health Services, Inc. v. PIGA, 884 .2d 889, 892 (Pa. Super. 2005). "An
abuse of discretion exists when the trial court has rend red a judgment that is manifestly
unreasonable, arbitrary, or capricious, has failed to apply thllaw, or was motivated by partiality,
prejudice, bias, or ill will." Chane v. Meadville Medical C nter, 912 A.2d 300, 306 (Pa. Super.
2006); citing Harman v. Borah, 756 A.2d 1116, 1123 (Pa. 2 00).
Appellant sued his niece under the Pennsylvania Con titution asserting her actions violated
the inherent rights of mankind. Article I, § 1 of the Pennsyl ania Constitution does not permit a
private cause of action against private individuals. Logically, no facts can be at issue, nor material,
if no cause of action exists. Therefore, in viewing the facts ost favorably to the Appellant, this
claim fails as a matter of law and the Court was obligated to g ant Appellee' s Motion for Summary
Judgment.
Even if, arguendo, Appellant had a legally actionab e claim under Article I, § 1 against
Appellee, money damages are inappropriate for violations of the Pennsylvania Constitution such
as this.2 Cf. Jones v. City of Philadelphia, 890 A.2dl 188, bas (Pa. Commw. 2006); see also
2
Appellant asserts a claim of damages greater than $50,000, equitable, a d injunctive relief. Complaint 7 /31/13, p.
6:3-7: 1. However, since Appellant's father has died, the requests for equi able and injunctive relief are moot.
6
Hillgartner v. Port Authority of Allegheny County, 936 A.2 131, 141 (Pa. Cornrow. 2007). The
Pennsylvania Supreme Court has not recognized a private c use of action for damages under Art.
I, § 1 of the Pennsylvania Constitution and generally does n t recognize a cause of action against
individuals under any constitutional provision. Douris v. S hweiker, 229 F. Supp. 2d 391, 405
(E.D. Pa. 2002) aff'd sub nom. Douris v. Rendell, 100 F. A p'x 126 (3d Cir. 2004); see Ryan v.
Gen. Mach. Prod., 277 F. Supp. 2d 585, 595 (E.D. Pa. 2003); see also Dooley v. City of
Philadelphia, 153 F. Supp. 2d 628, 663 (E.D. Pa. 2001); but c E.E.O.C. v. Fed. Express Corp., 537
F. Supp. 2d 700, 718 (M.D. Pa. 2005) (allowing a private ause of action for damages but only
under the Equal Rights Amendment to the Pennsylvania Co stitution).
Appellant also claims in his Statement of Errors Co plained of on Appeal, that this Court
"mischaracteriz[ed] the Complaint facts ... [showed] bias rill-will with prejudice towards the
Plaintiff, while showing favoritism to the [Appellee] ... " hese claims are inaccurate, baseless,
and irrelevant to the dispositive legal flaw in Appellant's clam (no private cause of actions exists
against another private individual through Article I, § 1 o the Pennsylvania Constitution). As
evidence of the inaccurate and baseless nature of Appellan 's claims, at no point did this Court
characterize any facts of the case. As the docket clearly i dicates, only four orders have been
entered by the Court, none of which included factual charact rizations.3
Appellant's claim failed as a matter of law and th remedy sought was inappropriate,
therefore, this Court was obligated to grant Appellee's Moti n for Summary Judgment.
3
The Orders entered by the Court include the following: (I) 8/28/13 Ord r Approving Appellant's in Propria
Persona Application; (2) 5/27/15 Order Denying Appellant's Motion for ummary Judgment; (3) 8/16/16 Order
Granting Appellee's Motion for Summary Judgment; (4) 10/4/16 Order t file a 1925(b) Concise Statement of
Errors Complaint of on Appeal.
7
CONCLUSION
For the foregoing reasons, this Court perceives that ppellee presents no genuine issue of
material fact, and therefore this Court's August 16, 2016, rder granting Appellee's Motion for
Summary Judgment should be affirmed. We respectfully re est the Superior Court to affirm this
Court's decision.
~~q UY~
Date
8
Copies to:
David A. Baun,
Baun & Litt
4 West Oakland Ave.
Doylestown, PA 18901
Attorney for Appellee
Raymond Joseph Smolsky
SCI Mahanoy, BM-2892
301 Morea Road
Frackville, PA 17932
pro se Appellant
9