J-A22028-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SUSAN L. CHRISTMAN, INDIVIDUALLY, 

AND TRADING AS CHRISTMAN LAKE

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

THE ESTATE OF JAMES P. MATHENY, 

SR., KATHRYN P. MOYER, EXECUTRIX, 

AND KATHRYN P. MOYER, INDIVIDUALLY

Appellee NO. 160 MDA 2015 

NO. 161 MDA 2015

Appeal from the Order Entered August 12, 2014

In the Court of Common Pleas of Berks County

Orphans' Court at No(s): 06-11-1287

BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.: FILED AUGUST 28, 2015

Appellant Susan L. Christman,1individually and trading as Christman 

Lake ( “Christman Lake”), appeals from the order of the Berks County Court 

of Common Pleas denying Appellant’s motion for summary judgment and 

granting the motion for partial summary judgment filed by Appellees the 

Estate of James P. Matheny, Sr. (the “Estate”), Kathryn P. Moyer, Executrix 

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* Retired Senior Judge assigned to the Superior Court.

1 Mrs. Christman’s husband, Dennis C. Christman, commenced the action, 

but passed away prior to disposition. Mrs. Christman filed a substitution of 

successor, substituting Mrs. Christman individually and trading as Christman 

Lake. 
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of the Estate, and Kathryn P. Moyer, Individually (“Moyer”).2 We affirm the 

denial of Christman Lake’s motion for summary judgment and affirm the trial 

court’s grant of the Estate’s and Moyer’s partial summary judgment motion 

as to the breach of contract and declaratory judgment actions. We remand, 

however, for further findings by the trial court on the counterclaim filed by 

the Estate and Moyer pursuant to the Unfair Trade Practice Consumer 

Protection Law (“UTPCPL”), 73 Pa.C.S. §§ 201-1, et seq.

Christman Lake and James Matheny entered into a lease, dated 

September 1, 1983, granting Matheny the right to reside at 260 South Shore 

Drive, Lenhartsville, Berks County, Pennsylvania (“Property”), for a period of 

99 years. Matheny and Moyer moved into the Property in 1983. From 1983 

to the present, Moyer has resided on the Property.

On August 16, 2011, Matheny died. Matheny’s Will provided that his 

interest in the lease be devised to his significant other, Moyer.3 Specifically, 

the Will, dated March 25, 2009, provided:

My real estate including any and all Right, Title and 

Interest in Lease dated September 1, 1983 for said real 

estate (per Section 7 of said Lease) which is located at 260 

____________________________________________

2 Appellant filed two appeals from the order granting the Estate and Moyer’s 

partial summary judgment and denying her motion for summary judgment. 

The appeals were docketed at 160 MDA 2015 and 161 MDA 2015, 

respectively. On March 17, 2015, this Court consolidated the appeals sua 

sponte. Order, 3/17/2015.

3 The Estate and Moyer maintain Matheny and Moyer were common law 

husband and wife. Christman Lake disputes this. 
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South Shore Drive, Lenhartsville, Berks County, 

Pennsylvania, to my significant other, [Moyer], should she 

survive me by thirty (30) days. Should my significant 

other, [Moyer], fail to survive me by thirty (30) days, I

give such real estate including any and all Right, Title, and 

Interest in my lease dated September 1, 1983 for said real 

estate, in equal shares, to my friends, Scott Gardner and 

Connie Gardner or the survivor thereof.

Last Will and Testament of James P. Matheny, Sr., at 2 of 7, ¶7.

The lease provided the following regarding assignments:

In the event the Lessee shall have constructed a building 

on said premises, he may sell his interest therein and 

assign the within lease, provided, that all mechanic’s liens, 

taxes, assessments, and other charges shall have been 

paid to the date of such sale and assignment, that all 

covenants or agreements herein contained to be kept and 

performed by Lessee, his heirs and assigns, have been 

fully complied with at the date of such sale or assignment 

and that such sale or assignment is approved of in writing 

by the Lessor. The instrument of assignment shall provide 

that the assignee shall expressly assume the Lessee’s 

covenants and obligations hereunder, including the 

payment of all rent, taxes, assessments, liens, charges 

and encumbrances imposed upon the premises and 

improvements thereon. 

Defendant’s Partial Motion for Summary Judgment at Exh. M-4 at ¶ 7.

On March 26, 2012, Christman Lake filed a complaint in 

ejection/eviction in the Berks County Court of Common Pleas. On May 3, 

2012, the Estate and Moyer filed an answer containing new matter and 

counterclaims. On May 21, 2012, Christman Lake filed an answer to the 

new matter and filed a new matter to the counterclaim. On May 29, 2012, 

Moyer and the Estate filed an answer to Christman Lake’s new matter to the 

counterclaim.
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On July 29, 2013, Christman Lake filed a motion for summary 

judgment and/or partial summary judgment. On September 3, 2013, Moyer 

and the Estate filed a response to Christman Lake’s motion for summary 

judgment and filed a motion for partial summary judgment.4 On October 2, 

2013, Christman Lake filed an answer to the motion for partial summary 

judgment. 

On November 6, 2013, the trial court issued an order denying both 

motions without prejudice and transferring the case to the orphans’ court. 

On November 21, 2013, the Estate and Moyer filed a petition for 

reconsideration of the motion for partial summary judgment. On December 

6, 2013, Christman Lake filed an answer to the petition, requesting the court 

deny the motion for partial summary judgment and requesting the court 

enter summary judgment in its favor. The parties filed supplemental 

memoranda. On August 12, 2014, the court granted the motion for partial 

summary judgment filed by the Estate and Moyer and denied Christman 

Lake’s motion for summary judgment. The order provided:

AND NOW, this 12th day of August, 2014, upon 

consideration of the record, the supplemental filings of the 

parties, and upon consideration of the fact that [Christman 

Lake] and/or [Christman Lake’s] predecessor clearly 

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4 The motion for partial summary judgment sought an order “deciding all 

questions of right to possession and assignment” in the Estate and Moyer’s 

favor and denying all claims asserted by Christman Lake, “but not deciding 

the appropriate measure of damages due” to the Estate and Moyer. 

Defendant’s Motion for Partial Summary Judgment at 3.
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contemplated assignment and/or a successor lessee, in 

that [Christman Lake] and/or [Christman Lake’s] 

predecessor entered into a ninety-nine year lease with a 

party that was sui juris at the time of execution of said 

lease, it is hereby ORDERED and DECREED that [the Estate 

and Moyer’s] Motion for Partial Summary Judgment is 

GRANTED. It is FURTHER ORDERED that the [Christman 

Lake’s] Motion for Summary Judgment is hereby DENIED.

Order, 8/12/2014.

On August 27, 2014, Christman Lake filed exceptions. The exceptions 

were deemed denied by operation of law on December 26, 2014 and the 

clerk of the orphans’ court entered this denial on the docket. On January 

15, 2015, the clerk entered an unsigned order on the docket denying the 

exceptions by operation of law.

On January 20, 2015, Christman Lake filed a notice of appeal. Both 

Christman Lake and the trial court complied with Pennsylvania Rule of 

Appellate Procedure 1925.

Appellant raises the following claims on appeal:

A.1 Must a party claiming rights of assignment under a 

written lease prove compliance with the requirements of 

that written lease regarding any requested assignment?

A.2 Can the identity of a personal representative of an 

[e]state acting as a representative of the [e]state be 

commingled with that person’s individual identity to create 

legal rights in the [e]state and/or individual?

B. Where a party does not have any written contract or 

entitlement to possession to real estate, is that person a 

tenant at will whose tenancy can be terminated at will by 

[l]essor?

C. Where a [c]ourt enters [p]artial [s]ummary [j]udgment 

pursuant to Pa.R.C.P. 1035.5, should it specify the facts 
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that are without controversy to direct further proceedings 

in the action based upon that order?

Appellant’s Brief at 6.

A. Summary Judgment – Right of Possession

Christman Lake’s first three issues essentially argue the trial court 

erred in finding Moyer had a right of possession to the leasehold and 

granting the Estate and Moyer’s motion for partial summary judgment.

“[S]ummary judgment is appropriate only in those cases where the 

record clearly demonstrates that there is no genuine issue of material fact 

and that the moving party is entitled to judgment as a matter of law.” 

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa.2010) (quoting 

Atcovitz v. Gulph Mills Tennis Club, Inc., 812 A.2d 1218, 1221 

(Pa.2002)). A “trial court must take all facts of record and reasonable 

inferences therefrom in a light most favorable to the non-moving party” and 

“must resolve all doubts as to the existence of a genuine issue of material 

fact against the moving party.” Id. (citing Toy v. Metropolitan Life Ins. 

Co., 928 A.2d 186, 195 (Pa.2007)). Therefore, a trial court “may only grant

summary judgment ‘where the right to such judgment is clear and free from 

all doubt.’” Id. (quoting Toy, 928 A.2d at 195). This Court “may reverse a 

grant of summary judgment if there has been an error of law or an abuse of 

discretion.” Id. (quoting Weaver v. Lancaster Newspapers, Inc., 926 

A.2d 899, 902–03 (Pa.2007)).

Christman Lake argues that, because Matheny did not construct a 

building on the site, there was no right of assignment pursuant to the lease. 
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Appellant’s Brief at 27. It argues the devise contained in the Will violates 

the lease agreement because it occurred without notice and without written 

approval of Christman Lake. Id. at 27-29. Christman Lake further 

maintains Moyer has no possessory right as the Estate’s personal 

representative, because a personal representative has the right to take title 

only if necessary to protect the rights of claimants. Appellant’s Brief at 33-

34 (citing 20 Pa.C.S. § 3311). It further maintains Fortunato v. Shenango 

Limestone Co., 123 A. 482 (Pa.1924), relied on by the trial court, is 

inapplicable. Id. at 34. Christman Lake concludes that, because Moyer has 

no contract or entitlement to possession, she is a holdover tenant, and 

Christman Lake can evict her. Appellant’s Brief at 35.

The death of a lessee does not terminate a lease. Fortunato, 123 A. 

at 482; 42 A.L.R. 4th 963, § 2[a] (“the general rule for real property leases 

appears to be that the death of a lessee does not of itself constitute an event 

which will terminate the contract, at least absent peculiar circumstances”); 

cf. Kiernan v. Keeney, 62 Pa.D.&C. 469, 470 (C.P. Phila. 1947) (although, 

without language to the contrary “the ordinary covenant in a lease against 

subletting does not prohibit an assignment by the lessee’s executors,” but 

overruling defendants demurrer because lease provided: “Any transfer by 

process of law shall be deemed an assignment by the lessee,” which 

constituted plain and unambiguous language that parties’ intent was to 

prevent such transfers upon death). Further, regardless whether the nonassignment clause would apply if no building was constructed, such clauses 
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do not preclude the transfer of a lease upon the death of a leasee. See 42 

A.L.R. 4th 963 § 2[a] (Although “the courts construing the effect of general 

anti[-]assignment clauses have generally, though not universally, held that 

they did not apply to the death of the lessee (§ 7, infra), so that such 

clauses would not prevent the continued existence of the lease upon such 

death, the courts have given full effect to clauses specifically providing for 

the effect of the lessee’s death on the continued existence (§ 8[b], infra) or 

immediate termination (§ 8[a], infra) of the lease, the only questions in such 

cases being either just what effect such a clause should mandate under the 

circumstances as a whole, or whether such a clause has indeed been 

included in the lease.”).5 

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5

Further, as the Estate and Moyer contend, the ninety-nine year lease 

contemplated, and referenced, Matheny’s heirs. The trial court found:

In addition, it is clear upon review of the lease that 

assignment is permissible. . . . [Christman Lake] entered 

into a ninety-nine year lease agreement with [] Matheny, 

who was sui juris when he signed the lease. Clearly, 

assignment was contemplated. In addition, paragraph six 

of the lease provides, “The lessee shall also save the 

Lessor harmless and free from loss, cost, damage or 

expense arising out of any accident or other occasion 

causing injury to any person or property and due directly 

or indirectly from the use or occupancy of the premises or 

any of the adjacent facilities known as [‘]Christman Lake 

Development[’] by the Lessee, his heirs or assigns.” 

(Emphasis added). 

Opinion, 3/10/2015, at 8. 
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Accordingly, pursuant to Matheny’s Will, the remaining interest in the 

lease transferred to Moyer as Matheny’s executrix, and Moyer, as executrix, 

may transfer the lease to Moyer, as the devisee under the Will.6 The trial 

court did not err in granting the Estate and Moyer’s motion for partial 

summary judgment as to the breach of contract and declaratory judgment 

claims and in denying Christman Lake’s motion for summary judgment.

B. Summary Judgment - UTPCPL Claim

Christman Lake next argues the trial court should have specified the 

facts that are without controversy or the relief which is not in controversy 

and directed further proceedings. Appellants’ Brief at 36-40. Christman 

Lake argues the trial court only addressed Moyer’s present entitlement to 

the lease, not whether Christman Lake violated the UTPCPL. Id.7

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6

 The trial court found Moyer had a right to possess the leasehold as 

executrix of the Estate and the Estate had a right to assign the leasehold to 

Moyer because the non-assignment clause did not apply because Matheny 

did not build a building on the premises. We, however, can affirm the trial 

court on any basis. Commonwealth v. Clemens, 66 A.3d 373, 381 n.6 

(Pa.Super.2013).

7 Christman Lake also argues the trial court did not address other aspects of 

the Estate and Moyer’s motion for partial summary judgment, including the 

Estate and Moyer’s arguments that: (1) because the Estate and Moyer had a 

present possessory leasehold interest, summary judgment was properly 

entered against Christman Lake as to the counts raised in Christman Lake’s 

complaint; and (2) the trial court should enter a declaration that the Estate 

and Moyer had a right to transfer the lease without Christman Lake’s 

approval. Appellant’s Brief at 37. As to the counts raised in Christman 

Lake’s complaint, each relied on Christman Lake having a present 

possessory interest in the leasehold, which it does not, and, therefore, the 

trial court’s order addressed this concern. See Complaint. As to the grant 

(Footnote Continued Next Page)
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The Counterclaims filed by the Estate and Moyer include a claim 

Christman Lake violated the UTPCPL because Christman Lake was a seller of 

goods and services, the Estate and Moyer were “consumers,” the lease was 

entered into primarily for personal, family, or household purposes, and the 

Estate and Moyer suffered ascertainable loss of money or property as a 

result. Defendants’ Answer to Plaintiff’s Complaint at New Matter at Count 

III.8 

The trial court’s conclusion that the Estate and Moyer had the right to 

possess the leasehold does not, alone, support a summary judgment finding 

as to the UTPCPL claim. As to its UTPCPL claim, Moyer sought summary 

judgment, arguing she had a right to bring a private right of action, 

Christman Lake committed an unlawful action in arbitrarily refusing to 

approve the assignment, this refusal caused Moyer to suffer a loss of 

property, and this refusal caused Moyer to sustain actual damages. 

(Footnote Continued) _______________________

of summary judgment declaring that the Estate and Moyer have a right to 

transfer the lease without Christman Lake’s approval, such right would exist 

for transfer upon death. The grant would not impact future transfers, and 

the lease provisions would apply.

8 The claimed unfair practices included that Christman Lake claimed the 

lease contained a confessed judgment clause and engaged in other 

fraudulent or deceptive conduct which has created a likelihood of confusion 

by attempting (1) to defraud the Estate and Moyer, (2) to force Moyer to 

sign “the current lease and rules,” which would undermine her rights, and 

(3) to add provisions to the lease to unilaterally increase the rent. 

Defendants’ Answer to Plaintiff’s Complaint at ¶ 72.
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Memorandum in Support of Defendants’ Response to Plaintiff’s Motion for 

Summary Judgment and in Support of Defendants’ Request for Partial 

Summary Judgment at 10-11.9 Both the Estate and Moyer sought summary 

judgment that Christman Lake violated the UTPCPL, but asked that the court 

not decide damages. Id. at 11. 

The trial court did not make any ruling as to the UTPCPL claim and we 

remand to the trial court for additional findings as to the claim.

C. Christman Lake did not Waive Its Claims

The trial court and the Estate and Moyer maintain Christman Lake 

waived any issues because their 1925(b) statement included 36 allegations 

of error, many of which were frivolous, and the statement could “hardly be 

described as concise.” Opinion, 3/10/2015, at 6. We find the Estate and 

Moyer did not waive the issues. See Eiser v. Brown Williamson Tobacco 

Corp., 938 A.2d 417, 428 (Pa.Super.2007) (“the number of issues raised in 

____________________________________________

9 The title of the UTPCPL claim raised in the answer states the UTPCPL claim 

is asserted by the Estate and Moyer against Christman Lake. Defendants’ 

Answer to Plaintiff’s Complaint at ¶ 72. The memorandum in support of the 

partial motion for summary judgment states the UTPCPL claims is “Moyer’s 

claim” and the argument contained therein referenced the loss and damages 

suffered by Moyer. Memorandum in Support of Defendants’ Response to 

Plaintiff’s Motion for Summary Judgment and in Support of Defendants’ 

Request for Partial Summary Judgment at 10-11. The conclusion of the 

summary judgement UTPCPL section, however, states “this [c]ourt should 

grant summary judgment in favor of [the Estate and Moyer] finding that 

[Christman Lake] violated the UTPCPL and should not yet decide the amount 

of damages owed to [the Estate and Moyer].” Id. at 11. 
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a Rule 1925(b) statement does not, without more, provide a basis upon 

which to deny appellate review where an appeal otherwise complies with the 

mandates of appellate practice”). Although the statement was lengthy, 

Christman Lake had no guidance as to the basis of the grant of partial 

summary judgment, which was in a one-paragraph order. Further, the trial 

court was able to determine the main issue raised, i.e., that it erred in 

granting partial summary judgment.

D. Christman Lake Timely Filed Its Notice of Appeal

Because the trial court granted a motion for partial summary judgment 

which determined an interest in real property, Appellants arguably had to file 

their notice of appeal within 30 days of the date of the order granting partial 

summary judgment. Pa.R.A.P. 342(a)(6) (“An appeal may be taken as of 

right from the following orders of the Orphans’ Court Division: . . . (6) An 

order determining an interest in real or personal property.”); Estate of 

Moskowitz, 115 A.3d 372, 378 n.5 (Pa.Super. Feb. 4, 2015) (“Under the 

Pennsylvania Rules of Appellate Procedure, Appellants were obligated to 

appeal the court’s grant of partial summary judgment immediately to avoid 

waiver. See Pa.R.A.P. 342(a)(6), (c)).”). We need not address this issue, 

however, as there is no docket entry indicating the order granting partial 

summary judgment was mailed to the parties. Vertical Resources, Inc. v. 

Bramlett, 837 A.2d 1193 (Pa.Super.2003) (appeal timely because no 

indication on docket notice of entry of order was sent). The order itself has 

a stamp stating:
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August 12, 2014, Certified Copy of Order issued to Counsel 

of Record and/or Unrepresented parties being see list 

above by first class and inter-office mail by Register of 

Wills.

Order, 8/12/2014. The docket, however, contains no entry indicating 

service, as required by Pennsylvania Rule of Civil Procedure 236(b). See 

Pa.R.Civ.P. 236(b) (“The prothonotary shall note in the docket the giving of 

notice and, when a judgment by confession is entered, the mailing of the 

required notice and documents”). Therefore, the time to file an appeal did 

not begin to run. Pa.R.A.P. 108(b) (“The date of entry of an order in a 

matter subject to the Pennsylvania Rules of Civil Procedure shall be the day 

on which the clerk makes the notation in the docket that notice of entry of 

the order has been given as required by Pa.R.Civ.P. 236(b).”).

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/28/2015