Opinion
No. 106 C.D. 2012
03-19-2013
Commonwealth of Pennsylvania v. The Real Property and Improvements Known as 636 Jackson Street, Philadelphia, PA 19148, Appellant
BEFORE: HONORABLE DAN PELLEGRINI, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Marie Fickling, current owner of The Real Property and Improvements Known as 636 Jackson Street, Philadelphia, PA 19148 (Property), appeals from the January 10, 2012 Order of the Court of Common Pleas of Philadelphia County (trial court) granting the Commonwealth of Pennsylvania's (Commonwealth) Forfeiture Petition (Petition). On appeal, Fickling argues that the trial court erred in granting the Petition because: (1) the Commonwealth did not prove a nexus between the Property and the criminal activity; (2) Fickling established that she was an innocent owner of the Property; (3) the trial court violated Fickling's due process rights when it failed to grant her Motion for Reconsideration after the trial court held a hearing on the Petition without Fickling or her counsel; and (4) the trial court failed to recognize an alleged settlement agreement between Fickling and the Commonwealth. For the following reasons, we affirm the trial court's Order.
Fickling testified that she had lived at the Property for thirty years, but that the Property's deed listed her ex-husband and one of her sons as the owners. The Property was transferred to Fickling by Special Warranty Deed dated September 2, 2009.
On August 1, 2007, the Commonwealth filed its Petition to forfeit the Property pursuant to legislation commonly known as the Controlled Substances Forfeiture Act (Forfeiture Act), 42 Pa. C.S. §§ 6801-6802. After many continuances and procedural issues, the trial court held a hearing on the Petition on November 9, 2011 (November hearing). Neither Fickling nor her counsel attended the hearing. The trial court permitted the hearing to proceed, and the Commonwealth presented the testimony of three City of Philadelphia police officers. The officers testified to incidents that occurred in 1999, 2000, 2004, and 2007. Those incidents are summarized as follows.
In 1999, one of the officers and his partner were investigating the 600 block of Jackson Street for drug activity, and the partner purchased crack cocaine from Fickling's son (G.M.) on the Property's front porch. The following day, another officer witnessed G.M. exchange small objects for U.S. currency from the Property's back door; the other individual involved in the exchange was stopped shortly thereafter and two packets of heroin were recovered. Based on these observations, the officers obtained and executed a search warrant for the Property, which resulted in the recovery of two handguns, $48 in U.S. Currency, evidence that G.M. resided at the Property, and a box that contained 20 grams of marijuana. G.M. was stopped outside the Property and arrested. (Trial Ct. Supp. Op. at 3.)
In 2000, officers used a phone number obtained from an informant to arrange to purchase three packets of heroin at the Property. At the time of the buy, G.M. came out of the Property's back door and handed the undercover police officer packages of heroin, stamped "Scar Face," in exchange for $30 in pre-recorded buy money. The officers set up another buy the next day, and an unidentified man sold the officers three packages of "Scar Face" heroin out of the Property's back door for $30 of pre-recorded buy money. After obtaining and executing a search warrant, G.M. was apprehended inside the Property with a packet of marijuana on his person. The officers found $492 in U.S. Currency, including the $30 pre-recorded buy money, and a cell phone with the number the officers used to set up the drug purchases in G.M.'s bedroom. G.M. informed the officers that he had flushed heroin down the toilet, and the officers found five packets of "Scar Face" heroin in the flush pipe. G.M. was arrested on the Property and charged with possession and distribution of a controlled substance. (Trial Ct. Supp. Op. at 4-5.)
In 2004, officers set up surveillance of the Property based on information they received about narcotics activity. The officers observed D.J., Fickling's granddaughter's boyfriend, leave the Property on his bike and exchange small objects for U.S. currency with an unknown male. D.J. was stopped and searched, and the officers recovered from D.J.'s person 38 packets of crack cocaine, cell phones, and two pieces of cardboard on which "24/7" and a phone number were written. Fickling gave the officers permission to search the Property. The search of the Property recovered $224 in U.S. Currency and five pieces of cardboard with the same information as those found on D.J. (Trial Ct. Supp. Op. at 5.)
Finally, in 2007, officers again set up surveillance on the 600 block of Jackson Street in response to complaints of drug activity. The officers watched both the Property and 627 Jackson Street, which is located directly across the street from the Property and owned by Fickling's son and daughter-in-law, C.F. and A.M. During the surveillance, an officer observed Fickling's grandson, Ch.F., standing on the Property's front porch and conversing briefly with an unidentified man, who handed Ch.F. money. Ch.F. then entered the Property and, after 30 seconds, exited and went to 627 Jackson Street. Ch.F. exited 627 Jackson after about a minute and handed the unidentified man a clear plastic bag. The officer also witnessed a confidential informant with $50 in pre-recorded buy money approach the Property's front porch, speak with Ch.F., and hand Ch.F. the pre-recorded buy money. As before, Ch.F. entered and exited the Property and went across the street to 627 Jackson before handing the informant a clear plastic baggie, which was later determined to be marijuana. The officers obtained and executed a search warrant of the Property and 627 Jackson Street, and arrested Ch.F., C.F., A.M., G.M., and Fickling. Inside the Property, the officers found a loaded handgun on an eye level shelf on the basement stairs, a shotgun and banana clip in the basement, a black Taser, a white plate with cocaine residue inside a bread box on top of the kitchen refrigerator, unused clear plastic baggies, and five plastic baggies containing heroin inside a jacket hanging in the basement hallway. The police officers acknowledged that they did not know how long these items had been on the Property or who owned the jacket. Fickling was charged with distribution and possession of a controlled substance and conspiracy to commit the same, but the charges were later dismissed for lack of evidence. (Trial Ct. Supp. Op. at 5-8.)
Based on the officers' testimony regarding these incidents, the trial court issued an Order on November 9, 2011 granting the Petition and forfeiting the Property. Fickling filed a Motion for Reconsideration on November 14, 2011, asserting that she had not received notice of the November hearing, the Commonwealth had not met its burden of proof, she was an innocent owner, and the Commonwealth was breaching a settlement agreement whereby the Commonwealth agreed not to seek forfeiture of the Property if the Property was transferred to Fickling via a Special Warranty Deed (Deed). The trial court held a reconsideration hearing on January 10, 2012 (January hearing). (Trial Ct. Supp. Op. at 1.)
During the January hearing, the Commonwealth presented the testimony of a fourth City of Philadelphia police officer regarding the above-referenced drug activities on the Property. The police officer also testified that, during the 2007 surveillance, Fickling was in the house during all of the ongoing events because she was not seen entering the Property and was arrested inside the house. (Trial Ct. Supp. Op. at 6-8.) Fickling asserted an innocent owner defense to the Petition and testified regarding her lack of knowledge of and consent to the illegal drug activities that occurred on the Property. Fickling testified that she did not work and was not aware that her family was using the Property for any criminal activities. (Hr'g Tr. at 39, 42, 44, January 10, 2012.) She acknowledged that she was aware of G.M.'s arrests in 1999 and 2000, which was contrary to her interrogatory answers, and D.J.'s arrest in 2004, although she pointed out that D.J. was not arrested on the Property and was not a relation. (Hr'g Tr. at 47-48, 50, 53, 55, 58-59, 65.) Although she initially stated that G.M. and other family members who have had problems with the law were not allowed on the Property except to help her with chores, she subsequently testified that they were allowed on the Property because they were family. (Hr'g Tr. at 41-42, 51, 60-62.) The trial court held that Fickling had not established the innocent owner defense, (Hr'g Tr. at 77), and issued a January 10, 2012, Order, again granting the Petition.
After the Commonwealth sustains its burden of proving a nexus between the Property and the illegal activity in a forfeiture proceeding, "the burden shifts to the property owner to disprove the evidence or establish statutory defenses to avoid forfeiture (i.e., the "innocent owner" defense)." Commonwealth v. 1992 Chevrolet, 844 A.2d 583, 585 (Pa. Cmwlth. 2004). Section 6801(a)(6)(ii) of the Forfeiture Act states that "[n]o property shall be forfeited . . . , to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner." 42 Pa. C.S. § 6801(a)(6)(ii). Section 6802(j)(3) of the Forfeiture Act places the burden on the owner to establish:
[t]hat [the property] was not unlawfully used or possessed by him. In the event it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented.42 Pa. C.S. § 6802(j)(3). An owner's knowledge of the illegal activity does not preclude use of the defense, if the owner proves by a preponderance of the evidence that he did not consent to that activity. Commonwealth v. $2,523.48 U.S. Currency, 538 Pa. 551, 555-56, 649 A.2d 658, 660 (1994). Under the Forfeiture Act, an owner is not required to take affirmative steps to stop the illegal uses, but the owner's actions or omissions may be relevant in establishing a lack of consent. Id. at 556, 649 A.2d at 660 (quoting Commonwealth v. $2,523.48 U.S. Currency, 618 A.2d 1074, 1076 (Pa. Cmwlth. 1992), rev'd and remanded by, 538 Pa. 551, 649 A.2d 658 (1994)). However, the owner's actions, or lack of action, to discourage the illegal activity is not required to "be more than what are reasonable under the circumstances." Id.
The trial court stated in its Supplemental Opinion that it denied Fickling's Motion for Reconsideration after holding the reconsideration hearing on January 10, 2012, (Trial Ct. Supp. Op. at 1); however, this is not reflected in the trial court's January 10, 2012 Order, (Order, January 10, 2012).
Fickling filed an appeal, and the trial court directed her to file a Statement of Matters Complained of on Appeal (Statement) pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). Fickling filed her Statement, in which she listed three issues: (1) the evidence was insufficient to support the forfeiture of the Property and the forfeiture was against the weight of the evidence; (2) the trial court erred in denying her Motion for Reconsideration because she was not permitted to have her counsel present during the November hearing, which denied her due process; and (3) the trial court erred and abused its discretion in not finding that she had a settlement agreement with the Commonwealth and that the Commonwealth breached that agreement. (Fickling's Statement.) The trial court issued two opinions in support of its grant of the Petition.
The trial court issued its first opinion without benefit of the transcript from the January hearing and its supplemental opinion after it received that transcript.
The trial court addressed each of Fickling's arguments, but noted that Fickling did not include her innocent owner defense as an issue in her Statement and, therefore, the trial court did not address that issue. (Trial Ct. Supp. Op. at 10 n.7.) Regarding the first issue raised by Fickling, the trial court found that the police officers' testimony from both the November hearing and January hearing was sufficient to meet the Commonwealth's burden of proving the nexus between the Property and the criminal activity. (Trial Ct. Supp. Op. at 9.) The trial court noted that Fickling was aware that G.M. was arrested for selling narcotics on the Property in 1999 and 2000 and, despite knowing that G.M. and other relatives had numerous arrests for drug offenses, permitted her family onto the Property. (Trial Ct. Supp. Op. at 8.) With regard to Fickling's second issue, the trial court held that, pursuant to Rule 218(b) of the Pennsylvania Rules of Civil Procedure, the Commonwealth was entitled to proceed with the November hearing in the absence of Fickling and her attorney, unless Fickling satisfactorily explained why she was not ready to proceed with the trial. (Trial Ct. Supp. Op. at 10.) The trial court found that Fickling's counsel had adequate notice of the November hearing and was not present at the hearing; therefore, it properly allowed the Commonwealth to proceed with its case. (Trial Ct. Supp. Op. at 10-11.) Additionally, the trial court noted that Fickling had the opportunity to present evidence to support her innocent owner defense during the January hearing. (Trial Ct. Supp. Op. at 11.) Finally, concerning the settlement agreement issue, the trial court rejected Fickling's arguments regarding the alleged settlement agreement, finding that it heard no credible evidence that such an agreement existed. (Trial Ct. Supp. Op. at 11.) Fickling now appeals to this Court.
Rule 218(b)(1) of the Pennsylvania Rules of Civil Procedure provides that, "[i]f without satisfactory excuse a defendant is not ready, the plaintiff may proceed to trial." Pa. R.C.P. No. 218(b)(1). Rule 218(c) of the Pennsylvania Rules of Civil Procedure further states that "[a] party who fails to appear for trial shall be deemed to be not ready without satisfactory excuse." Pa. R.C.P. No. 218(c).
"Our review of a forfeiture appeal is limited to determining whether the trial court's findings of fact are supported by substantial evidence and whether it abused its discretion or committed an error of law." Commonwealth v. The Real Property and Improvements Commonly Known as 5444 Spruce Street, Philadelphia, 890 A.2d 35, 38 (Pa. Cmwlth. 2008). The trial court's findings of fact are entitled to deference and can be reversed only if the record lacks evidence to support those findings. Commonwealth v. Fidelity Bank Accounts, 631 A.2d 710, 714 (Pa. Cmwlth. 1993). Moreover, determinations regarding the credibility of the witnesses are solely for the trial court, and the trial court may draw any reasonable inferences from all of the evidence presented. Id.
Fickling first argues that the Commonwealth did not meet its burden of proving a nexus between the illegal activity and the Property by a preponderance of the evidence. She contends that the incidents of illegal activity occurring at the Property to which the police officers testified did not rise to a level of more than a one-time occurrence, and that the only illegal activity that had a true connection to the Property was G.M.'s sale of narcotics in 1999. Specifically, Fickling points out that: in 2004, D.J. (who did not reside at the Property) was not arrested for any illegal activity inside the house on the Property, was stopped after exiting the Property, and the only drugs recovered were on his person; and, in the 2007 incident, the police officers testified that they could not determine how long the drugs, guns, baggies, and plate with cocaine residue had been on the Property or who owned the jacket where drugs were found.
Pursuant to Section 6801(a)(6)(i)(C) of the Forfeiture Act, the Commonwealth may seek the forfeiture of "[r]eal property used or intended to be used to facilitate any violation of The Controlled Substance, Drug, Devise and Cosmetic Act, [(Drug Act)] including structures or other improvements thereon. . . ." 42 Pa. C.S. § 6801(a)(6)(i)(C). It is the Commonwealth's burden to establish, "by a preponderance of the evidence, that a nexus exists between the pertinent unlawful activity and the property subject to forfeiture." Commonwealth v. 1992 Chevrolet, 844 A.2d 583, 585 (Pa. Cmwlth. 2004). The preponderance of the evidence standard requires the Commonwealth to "show that it is more likely than not that the nexus exists." Commonwealth v. Burke, 49 A.3d 542, 546 (Pa. Cmwlth. 2012). Police testimony of continuing drug sales effectuated inside and outside a property, which is documented by surveillance, undercover police purchases, and confiscation of drugs and paraphernalia from the property, is sufficient to establish a nexus. Commonwealth v. 5900 Market Street, 732 A.2d 659, 662 (Pa. Cmwlth. 1999); Commonwealth v. 502-504 Gordon Street, 607 A.2d 839, 842 (Pa. Cmwlth. 1992). A single undercover purchase of narcotics on a property, along with the discovery of other drug paraphernalia from the property, can establish the requisite nexus. Commonwealth v. Schill, 643 A.2d 1143, 1145 (Pa. Cmwlth. 1994).
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §§ 780-101—780-144.
After reviewing the record, we conclude that the police officers' credited testimony was sufficient to establish a nexus between the Property and the unlawful activity by a preponderance of the evidence. The police officers credibly testified that they witnessed multiple drug buys on the Property and, following searches of the Property, they found, inter alia, drugs, drug residue, weapons, and baggies like those used to package drugs. Moreover, the police officers testified that, although D.J. was not arrested on the Property, they found items on the Property that linked D.J.'s drug activities to the Property. Similarly, the police officers indicated that the drug buys involving Ch.F began on the Property, with the purchasers giving Ch.F the money while on the Property, and Ch.F. would immediately enter the Property following each purchase. Such evidence is sufficient to establish that it is more likely than not that a nexus exists between the Property and the various unlawful activities witnessed.
Fickling next asserts that she has continually maintained the innocent owner defense throughout all of the proceedings before the trial court and this Court and has established the necessary elements of the innocent owner defense. Fickling argues that, because she was not required to take affirmative steps to stop the illegal activity, her actions forbidding family members with drug arrests from living at the Property and allowing them to visit only to assist in the upkeep of the Property were reasonable steps that demonstrated that she did not consent to the illegal activity on the Property. Furthermore, she contends that her cooperation with the police in 2004 by permitting them to search the Property prior to D.J.s arrest, although the search found no drugs, is further evidence that she did not consent to illegal activities.
However, as the trial court and the Commonwealth point out, Fickling did not include the issue of whether the trial court erred in holding that she did not establish the innocent owner defense in her Statement. Rule 1925(b)(4)(vii) of the Pennsylvania Rules of Appellate Procedure provides that "[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived." Pa. R.A.P. 1925 (b)(4)(vii). The Pennsylvania Supreme Court has strictly interpreted and applied this standard and requires that "'[a]ny issues not raised in a Pa. R.A.P. 1925(b) statement will be deemed waived.'" Commonwealth v. Hill, 609 Pa. 410, 424, 16 A.3d 484, 492 (2011) (quoting Commonwealth v. Lord, 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)). Accordingly, we are constrained by this clear precedent to hold that this issue is waived.
Were this issue not waived, we would conclude that the trial court's conclusion that Fickling did not establish an innocent owner defense is supported by the record. Although the trial court did not expressly discredit Fickling's testimony, it did not believe that she had no knowledge of the unlawful activities or that she did not consent to those activities because it denied her that relief. Fickling testified that she was aware of her family's history of drug arrests, particularly G.M.'s sale of drugs from the Property, and indicated that those family members were still allowed on the Property. (Hr'g Tr. at 41-42, 51, 60-62, January 10, 2012.) Although Fickling testified that those family members were allowed on the Property only to assist with chores, she also stated that they are allowed to come just to visit. (Hr'g Tr. at 38, 41-42, 60-62.) Furthermore, Fickling testified that she did not work, was at home most days, and went into the basement on occasion, which is where the two guns were found in plain sight. (Hr'g Tr. at 16, 41, 44-45, 53, 61.) It is reasonable to infer from these circumstances that Fickling was aware of the activities and, because she did nothing beyond banning G.M. from residing on the Property, consented to that activity. We would, therefore, conclude that such actions were insufficient to establish that she acted reasonably under the circumstances to meet her burden of proving that she was an innocent owner.
Fickling next contends that the trial court erred by not granting reconsideration because she did not receive adequate notice of the time and place of the November hearing, and her counsel did not attend that hearing. According to Fickling, the public docket available to her counsel did not indicate the November hearing date and her counsel does not have access to the trial court's secure docketing statement; therefore, counsel was "unable to access the publication in order to be considered as having adequate notice." (Fickling's Br. at 16.) Because she did not have notice of the November hearing, Fickling asserts that she was unable to cross-examine or challenge the statements of the police officers who testified at that hearing, which violated her right to due process.
Fickling argues that this qualifies as a satisfactory excuse under Rule 218(b)(1) of the Pennsylvania Rules of Civil Procedure. However, given this Court's plurality decision in Commonwealth v. All That Certain Lot or Parcel of Land Located at 605 University Drive, State College, Centre County, Pennsylvania, ___ A.3d ___ (Pa. Cmwlth., No. 789 C.D. 2011, filed Nov. 21, 2012), which, in part, questions the application of the civil rules in forfeiture proceedings, we query whether this provision of the civil rules is still in effect in forfeiture proceedings. However, because we resolve this issue on other bases, we will not address the applicability of Rule 218(b)(1) in this forfeiture proceeding.
"Notice and an opportunity to be heard are procedural safeguards integral to forfeiture proceedings . . . and must be satisfied." Commonwealth v. One 1991 Cadillac Seville, 853 A.2d 1093, 1095 (Pa. Cmwlth. 2004) (citation omitted). The principals of procedural due process require that prior to the deprivation of property by adjudication, the property owner must receive "notice and an opportunity to a hearing appropriate to the nature of the case." Id.
It is unclear whether Fickling is arguing that she actually did not receive notice of the November hearing, or that the docket does not reflect that she received notice. The certified record in this matter is somewhat lacking in that each docket printout we have received is slightly different from the others and the hearing transcript from the November hearing is not complete. Notwithstanding this, the transcript of the January hearing contains no discussion at all about whether Fickling or her counsel had notice of the November hearing, and Fickling's counsel does not object to the trial court's consideration of the testimony of the three police officers who testified during the November hearing. (Hr'g Tr. at 1-78, January 10, 2012.) Therefore, Fickling failed to preserve the issue of notice by: (1) not objecting at the January hearing to the trial court's reliance on the evidence presented at the November hearing; and (2) not raising the lack of notice argument during the January hearing. Borough of Ulysses v. Mesler, 986 A.2d 224, 227 (Pa. Cmwlth. 2009) (citing Rule 302 of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 302, which states that "[i]ssues not raised in the lower court are waived and cannot be raised for the first time on appeal.") Moreover, the trial court did hold the January hearing after Fickling filed her Motion for Reconsideration, during which the Commonwealth presented additional testimony similar to that given at the November hearing, which was subject to cross-examination, and Fickling presented her evidence in support of her innocent owner defense. Hence, even if the issue had been preserved, Fickling did receive an opportunity to be heard on the issues she wished to challenge and the defenses she wanted to assert.
There is some dialogue between the trial judge, the court crier, and counsel for the Commonwealth (Ms. Knopf) as to why Fickling and her counsel were not present for the November hearing, which was:
MS. KNOPF: Your Honor, for the record, counsel and respondent are not present.(Hr'g Tr. at 4-5, November 9, 2011, R.R. at 18-19.) Without comment by the trial judge, the Commonwealth did proceed to present its case. After the Commonwealth finished, the trial court questioned Ms. Knopf as to the absence of Fickling and her counsel and the fact that there was no opportunity for Fickling to put on an innocent owner defense. While the transcript shows that the trial court and Ms. Knopf proceeded to discuss this issue, the transcript ends in the middle of this exchange without revealing whether the notice issue was pursued further by the trial court. (Hr'g Tr. at 24, R.R. at 23.) --------
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COURT CRIER: Your Honor, the young lady called me, I told her and Nino [Fickling's counsel] to call Jen. I don't know what transpired. The young lady was here on 11/4. The young lady comes all the time. I told her to call Nino. I told Nino to call Jen. Whatever transpired then I have no idea.
MS. KNOPF: And, Your Honor, this case was listed for today. It's on the list. Counsel's deemed to know about it. He's got it continued every time. I don't care [if] she came in on the 4th. I don't care. We called him. Tony spoke to him this morning, that's my understanding, on the phone. He knew he was supposed to be here. I'd like to proceed . . .
Finally, Fickling asserts that the trial court erred or abused its discretion in not recognizing the settlement agreement that she and the Commonwealth entered into whereby the Commonwealth agreed to withdraw the Petition if the Property was transferred by the Deed to Fickling. According to Fickling, she presented writings from her former counsel that indicated that there was, at least, an oral agreement to settle on these terms and the Deed indicating that the Property was, in fact, transferred to Fickling. Fickling argues that this evidence satisfies the elements of a contract: (1) there was an offer (the withdrawal of the Petition in exchange for the transfer of the Property); (2) she accepted; and (3) consideration (execution of the Deed transferring the Property into Fickling's name). Therefore, she asserts, the trial court erred in finding that there was not a settlement agreement and not requiring the Commonwealth to fulfill the terms of that agreement.
Settlement agreements are favored and are enforced according to the principles of contract law. Step Plan Services, Inc. v. Koresko, 12 A.3d 401, 408-09 (Pa. Super. 2010). Thus, there must be an offer, acceptance, and consideration; therefore, when a settlement agreement contains all of these requisite elements, a court must enforce the agreement. Id. at 409. Oral settlement agreements are enforceable, and an offeree's ability to accept that agreement is terminated only by: (1) a counter-offer by the offeree; (2) a lapse of time; (3) a revocation of the offer; or (4) the death or incapacity of either party. Id. There must be a meeting of the minds "of both parties to the agreement, or they have failed to execute an enforceable contract." City of Erie v. Fraternal Order of Police, Lodge 7, 977 A.2d 3, 12 (Pa. Cmwlth. 2009). The burden of proving an oral contract is on the party seeking to establish the contract's existence. Edmondson v. Zetusky, 674 A.2d 760, 764 (Pa. Cmwlth. 1996). That party must prove not only the contract's existence, but also the "essential terms and conditions" of the oral contract. Mackay v. Mackay, 984 A.2d 529, 534 (Pa. Super. 2009).
The trial court did not credit the limited evidence Fickling offered to prove the existence of that agreement. The letter from Fickling's former counsel did not elaborate on or even mention an agreement with the Commonwealth, but merely alluded to a discussion between counsel. The letters that Fickling added to her reproduced record were not presented to the trial court and, therefore, will not be considered. "It is well settled that an appellate court cannot consider anything which is not part of the certified record in a case." Commonwealth v. Geatti, 35 A.3d 798, 800 (Pa. Cmwlth. 2011) (citing Smith v. Smith, 637 A.2d 622, 623-24 (Pa. Super. 1993)). Moreover, none of the letters were authored by a representative of the Commonwealth or established the particular terms of the alleged agreement. Because Fickling did not present credible evidence establishing that the alleged settlement agreement existed, the trial court did not err or abuse its discretion in finding that there was no agreement and not directing the Commonwealth to comply with that non-existent agreement.
Accordingly, we affirm the trial court's Order.
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, March 19, 2013, the Order of the Court of Common Pleas of Philadelphia County entered in the above-captioned matter is AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge