Opinion
J-S58002-15 No. 1966 MDA 2014
11-25-2015
ALTON D. BROWN, Appellant v. LARRY KRAMER, Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered October 6, 2014 in the Court of Common Pleas of Huntingdon County
Civil Division at No.: 2013-01594 BEFORE: GANTMAN, P.J., OLSON, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Alton D. Brown, appeals pro se from the order sustaining preliminary objections to his amended complaint against Appellee Larry Kramer. We affirm on the basis of the trial court opinion.
The trial court also entered orders denying Appellant's motion for sanctions, and denying a motion to compel discovery. Appellant has not raised these additional issues in this appeal. Therefore, we deem them abandoned.
This is a highly convoluted lawsuit, compounded by Appellant's endless stream of ultimately superfluous motions, and a near constant shift in claims and arguments. The brief is meandering, unfocused and substantially non-compliant. Nevertheless, it is apparent that Appellant's underlying claim, a breach of contract claim against the then-publisher of USA Today, personally, is utterly frivolous.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them at length here.
For the convenience of the reader, we note that Appellant, currently an inmate at S.C.I. Smithfield, and an admitted pro se filer of similar complaints for eighteen years, chiefly claims a breach of contract, and breach of warranty, personally, by Larry Kramer, formerly the editor and publisher of the newspaper USA Today. Appellant complains that after his subscription began, USA Today stopped publishing Las Vegas odds and other related data on sporting events. Appellant claims he needs this information to run his book-making operation in prison. ( See Appellant's Amended Complaint, 5/21/14, at 2, ¶ 12).
We take judicial notice that Appellee Larry Kramer, formerly publisher and president of USA Today, resigned effective June 29, 2015, from the newspaper and joined the board of directors of the new Gannett, in a corporate restructuring by which Gannett, the new publishing company, began trading as a separate company. See usatoday.com, June 8, 2015.
After a hearing, the trial court sustained Appellee's preliminary objections to the amended complaint, and denied the motion for reconsideration. This timely appeal followed.
We give Appellant the benefit of the doubt that his appeal was timely filed, pursuant to the Prisoner Mailbox Rule. See Thomas v. Elash , 781 A.2d 170, 178 (Pa. Super. 2001) (holding that prisoner mailbox rule applies to all pro se filings by incarcerated litigants).
Appellant raises three questions for our review on appeal:
I. Whether trial court erred as a matter of law or abused [its] discretion by sustaining preliminary objections, including the motion for reconsideration of same?(Appellant's Brief, at 1).
II. Whether trial court erred in [its] holding and actions surrounding prison staff refusal to allow Appellant access to his case files during hearing on preliminary objections?
III. Whether trial court's claim that appeal is untimely is supported by evidence?
In reviewing a trial court's grant of preliminary objections, the standard of review is de novo and the scope of review is plenary. The salient facts are derived solely from the complaint and pursuant to that standard of review, the court accepts all well-pleaded material facts in the complaint, and all inferences reasonably deduced therefrom must be accepted as true.Martin v. Rite Aid of Pennsylvania , Inc., 80 A.3d 813, 814 (Pa. Super. 2013) (citations omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that there is no merit to the issues Appellant has raised on appeal. The trial court opinion properly disposes of the questions presented. ( See Trial Court Opinion, 1/05/15, at 1-3) (concluding that Appellant (1) failed to establish in his amended complaint that he had contracted personally with Appellee Kramer; and (2) failed to allege averments of fraud with particularity).
Moreover, for the sake of clarity and completeness, we conclude on independent review that, in addition to a veritable cornucopia of procedural and technical defects, there is no merit to Appellant's overarching claim. Appellant not only fails to show that he contracted directly with Appellee Kramer for a subscription to USA Today; he offers no pertinent argument or supporting evidence in the record for his claims. Furthermore, he fails to develop a legal argument that a subscriber to a publication has any contractual right or claim to specific editorial content, much less a warranty, express or implied, that the publisher will maintain specific editorial content for the length of any individual subscription. We observe that Appellant cites to caselaw for general principles only. None are pertinent to his specific claims.
Additionally, we conclude that Appellant failed to raise and preserve, or properly develop, his claim that the trial court could or should interfere with the Department of Corrections based on his (Appellant's) bald assertion that prison staff interfered with his access to case files.
Finally, we note that we have given Appellant the benefit of the doubt on the timeless of his notice of appeal, based on evidence of his apparent timely mailing pursuant to the Prisoner Mailbox Rule. ( See supra at 3 n.3; see also Thomas v. Elash , supra at 178). Therefore, Appellant's third claim is moot.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/25/2015
We direct the Prothonotary to forward a copy of this memorandum to the Superintendent at SCI Smithfield for appropriate review of Appellant's self-confessed operation of a facially illegal gambling business in prison.
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