Calisto v. Rodgers

• Decision Date: 06 August 2020
• Docket Number: No. 2834 EDA 2018,J-S37016-19,2834 EDA 2018
• Parties: MICHAEL CALISTO, Appellant v. MICHAEL RODGERS
• Court: Pennsylvania Superior Court

MICHAEL CALISTO, Appellant v. MICHAEL RODGERS

J-S37016-19

No. 2834 EDA 2018

SUPERIOR COURT OF PENNSYLVANIA

August 6, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment Entered November 2, 2018, in the Court of Common Pleas of Philadelphia County, Civil Division at No(s): 160801903.

BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

DISSENTING MEMORANDUM BY BOWES, J.:

I cannot join the Majority memorandum. In my view, my learned colleagues have ventured far afield from the record and issues that are properly before us in this appeal. Furthermore, the Majority's analysis is based upon a misunderstanding and misapplication of several relevant legal principles, and results in an inappropriate disposition of this appeal. Therefore, I dissent, and offer the following discussion of my main areas of disagreement.

I. The Majority fails to view the record in the light most favorable to the verdict winner and misuses judicial notice to improperly augment the certified record.

The trial court found that Rodgers and Calisto had an oral agreement for the sale of three properties that Calisto inherited from his mother; that Calisto executed a sales agreement when Rodgers supplied a cash down payment; that Calisto provided Rodgers with deeds to the properties upon Rodgers's cash tender of the remainder of the sale price; and that Calisto feigned ignorance of the deal and accused Rodgers of fraud when Rodgers went to take possession of the properties. While professing adherence to the proper standard of review, the Majority nevertheless proceeds to view the evidence in a light most unfavorable to Rodgers, the verdict winner, in reviewing this appeal.¹ See Majority Memorandum at 18, 25 (observing that dates on the deeds "cast doubt upon Rodgers'[s] story"); id. at 26(highlighting inconsistencies in the versions of events offered by Rodgers and a witness to the transaction).

It is well settled that "our standard of review [following a non-jury verdict] demands that we consider the evidence in a light most favorable to the verdict winner." Levitt v. Patrick, 976 A.2d 581, 589 (Pa.Super. 2009) (internal quotation marks omitted). Further, "[w]hen reviewing the results of a non-jury trial, we give great deference to the factual findings of the trial court." Recreation Land Corp. v. Hartzfeld, 947 A.2d 771, 774 (Pa.Super. 2008). Accordingly, this Court must accept the trial court's findings because they are supported by the record,² not, as the Majority contends, because Calisto fails to challenge them.

The Majority further stumbles out of the gate by including within its scope of review evidence that is not properly before this Court in this appeal through the incorrect use of judicial notice. Specifically, the Majority discusses Rodgers' case against Calisto, which has absolutely no bearing on this appeal, by relying upon an uncertified copy of a transcript from that case that Calisto appended to his supplemental brief. After reciting Calisto's self-serving testimony, which was expressly rejected by this trial court, the Majority proceeds to take judicial notice not merely of the existence of a judgment in the Rodgers case, but the entire record of the case. See MajorityMemorandum at 1-3, 6. The Majority then pronounces that two judges reached "diametrically opposite conclusions" in the two cases, with the judgment in the case that is not before us having become not only a final judgment, but a final judgment on the merits. Id. at 10, 18-19 n.7.

It is axiomatic that "an appellate court is limited to considering only the materials in the certified record when resolving an issue." Ruspi v. Glatz, 69 A.3d 680, 691 (Pa.Super. 2013) (internal quotation marks omitted). Indeed, "any document which is not part of the officially certified record is deemed non-existent—a deficiency which cannot be remedied merely by including copies of the missing documents in a brief or in the reproduced record." Id. (internal quotation marks omitted).

The Majority speaks of the "Ruspi Rule" as if the principle had not been long-established before that case was decided. See Majority Memorandum at 9 n.3. Far from it, the portions of Ruspi quoted by the Majority are taken from this Court's decision in Commonwealth v. Preston, 904 A.2d 1 (Pa.Super. 2006). The Preston opinion, in turn, noted that "[t]he law of Pennsylvania is well settled that matters which are not of record cannot be considered on appeal," and cited for that proposition Commonwealth v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995); Commonwealth v. Baker, 614 A.2d 663, 672 (Pa. 1992); Commonwealth v. Quinlan, 412 A.2d 494, 496 (Pa. 1980); and Commonwealth v. Young, 317 A.2d 258 (Pa. 1974). Preston, supra at 6. See also Pa.R.A.P. 1921, Note ("An appellate courtmay consider only the facts which have been duly certified in the record on appeal.").

The Majority suggests that Pa.R.E. 201 is an exception to this canon of appellate review and allows it to take judicial notice of the other case's record. See Majority Memorandum at 9 n.3. Rule 201 governs the circumstances when a court may take judicial notice of an adjudicative fact. "Judicial notice allows the trial court to accept into evidence indisputable facts to avoid the formality of introducing evidence to prove an incontestable issue. However, the facts must be of a matter of common knowledge and derived from reliable sources whose accuracy cannot reasonably be questioned." Kinley v. Bierly, 876 A.2d 419, 421 (Pa.Super. 2005) (cleaned up).

Adjudicative facts subject to judicial notice under Rule 201 "are facts about the events, persons and places relevant to the matter before the court." Pa.R.E. 201, Comment. Such adjudicative facts properly established through judicial notice include, for example, the day of the week upon which a certain date falls, Mentz v. Unemployment Comp. Bd. of Review, 370 A.2d 1232, 1233 (Pa. 1977); "geographical facts such as the county in which a city or town is located, or the distance between places," Goff v. Armbrecht Motor Truck Sales, Inc., 426 A.2d 628, 630 (Pa.Super. 1980); and the qualities and properties of matter, such as that cement does not ordinarily give way under the weight of an average person. Walters v. Char-Mar, Inc., 284 A.2d 139, 143 (Pa.Super. 1971).

A court may take judicial notice of uncontested notations on its own docket and in record in the case before it. See, e.g., Commonwealth v. Bond, 532 A.2d 339, 343 (Pa. 1987); Commonwealth v. Harris, 462 A.2d 725, 729 (Pa.Super. 1983). However, time and time again, dating back nearly a century, Pennsylvania appellate courts have rejected the use of judicial notice to import the record of one case into another. See, e.g., Callery v. Blythe Township Municipal Authority, 243 A.2d 385 (Pa. 1968) (citing Naffah v. City Deposit Bank, 13 A.2d 63, 64 (Pa. 1940) ("It is well established that a court may not ordinarily take judicial notice in one case of the records of another case, whether in another court or its own, even though the contents of those records may be known to the court."). See also Richner v. McCance, 13 A.3d 950, 957 n.2 (Pa.Super. 2011) (same, noting the lack of this Court's authority to take judicial notice of a stay order entered in another case); In re J.C., 5 A.3d 284, 289 (Pa.Super. 2010) (same, refusing to take judicial notice of a custody order entered in another case); In re Estate of Brockerman, 480 A.2d 1199, 1202 (Pa.Super. 1984) (same, refusing to take judicial notice of estate accounts filed of record in another case).

Accordingly, the Majority's use of judicial notice in this case is improper. No testimony, evidence, or other record from the subsequent Rodgers case cited and discussed by the Majority is properly before us in this appeal. Thisdecision must be based solely upon the certified record in this appeal, viewed in the light most favorable to Rodgers as the verdict winner.

II. The Majority misapprehends the purpose and requirements of the statute of frauds and misapplies it to overturn a properly-reached verdict in this case.

The purpose of the statute of frauds is "the prevention of successful fraud by inducing the enforcement of contracts that were never in fact made. It is not to prevent the performance or the enforcement of oral contracts that have in fact been made." In re Beeruk's Estate, 241 A.2d 755, 758 (Pa. 1968) (cleaned up, emphasis added). See also Zuk v. Zuk, 55 A.3d 102, 107 (Pa.Super. 2012) ("Pennsylvania courts have emphasized that the Statute is not designed to prevent the performance or enforcement of oral contracts that in fact were made." (emphasis in original, internal quotation marks omitted)).

"The Statute of Frauds does not void those oral contracts relating to land which fail to comply with the Statute's formal requirements." Fannin v. Cratty, 480 A.2d 1056, 1059 (Pa.Super. 1984)). Rather, it "prevent[s] the enforcement of unfounded fraudulent claims by requiring that contracts pertaining to interests in real estate be supported by written evidence." Strausser v. PRAMCO, III, 944 A.2d 761, 765 (Pa.Super. 2008) (internal quotation marks omitted).

A writing need not be so formal as a deed to fulfill the statute's requirements. Instead, a court "should always be satisfied with some note ormemorandum that is adequate to convince the court that there is no serious possibility of consummating fraud by enforcement." Beeruk's Estate, supra at 758 (cleaned up). "When the mind of the court has reached such a conviction as that, it neither promotes justice nor lends respect to the statute to refuse enforcement because of informality in the memorandum or its incompleteness in detail." Id.

This Court has noted that the writing necessary to satisfy the statute "need only contain a sufficient statement of the terms of the agreement and the signature of the grantor." In re Estate of Dotterrer, 579 A.2d 952, 954 (Pa.Super. 1990). Similarly, "there is no requirement in ...