J-S95019-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RAYMOND JOSEPH SMOLSKY IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

SAMUEL C. TOTARO, JR.

No. 1286 EDA 2016

Appeal from the Order Entered March 11, 2016

In the Court of Common Pleas of Bucks County

Civil Division at No(s): 2015-03051

BEFORE: STABILE, J., MOULTON, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.: FILED APRIL 19, 2017

Raymond Joseph Smolsky appeals, pro se, from the March 11, 2016 

order entered in the Bucks County Court of Common Pleas sustaining 

Samuel C. Totaro, Jr.’s preliminary objections to Smolsky’s complaint and 

dismissing the complaint with prejudice. We affirm.

This appeal arises from a dispute over a property belonging to the 

estate of Smolsky’s late father. Included in the estate was a property 

located at 717 and 721 Forest Lane, Pottsville, Pennsylvania (“Forest Lane 

property”), which Smolsky, who is currently incarcerated at the State 

Correctional Institution-Mahanoy, sought to use as a residence when 

released on parole. Accordingly, Smolsky offered, in writing, his residual 

interest in the estate to purchase the Forest Lane property. Totaro, who was 
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appointed as administrator of the estate d.b.n.c.t.a.,1 mailed a letter to the 

father’s five residual heirs, including Smolsky, informing them that as 

administrator of the estate, Totaro was required to gather the estate assets, 

liquidate those assets to pay the estate’s debts, taxes and expenses, and 

finally distribute the remaining assets to the residual heirs. In the letter, 

Totaro noted that Smolsky had expressed an interest in purchasing the 

Forest Lane property, which was appraised at $110,000. Totaro also stated 

that if Smolsky did not purchase the property, then Totaro would list the 

property for sale.

On January 2, 2015, Smolsky filed a motion in the orphans’ court of 

the Bucks County Court of Common Pleas for court approval to 

lease/purchase the Forest Lane property. On January 22, 2015, Smolsky 

sent a letter to Totaro, asking for authorization to lease or purchase the 

Forest Lane property, by allowing him to withdraw the motion pending in the 

orphans’ court. Totaro responded by letter dated January 23, 2015, in which 

Totaro stated that Smolsky had made an offer to lease the property for $500 

per month. Totaro informed Smolsky that Wells Fargo Bank had a lien on 

the property that required a payment of $1,572 per month. Totaro also 

responded to Smolsky’s assertion that his brother and sister would give him 

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1

Letters of administration de bonis non cum testamento annexo

(“d.b.n.c.t.a.”) are granted when the decedent died testate and “an entire 

vacancy occurs in the office of personal representative before administration 

is completed.” 20 Pa.C.S. § 3159.
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their residual shares to purchase the Forest Lane property, stating that he 

would need written confirmation from them confirming that they would 

relinquish their shares. Totaro further stated that he remained concerned 

that he would not be able to make any distributions to the residual heirs. 

The letter also stated that he would be willing to consider a more specific 

plan that allowed the estate to pay the expenses on the Forest Lane 

property, but that the estate would continue to market the property for sale.

On March 23, 2015, Totaro sent another letter to Smolsky, indicating 

that the estate had entered into an agreement of sale for the Forest Lane 

property. Totaro also acknowledged Smolsky’s pending motion in the 

orphans’ court and, while asserting that he had authority to sell the property 

without court authorization and reject Smolsky’s lease offer, noted he 

requested that the orphans’ court schedule a hearing on the petition. During 

the pendency of this motion, on April 22, 2015, Smolsky filed a civil 

complaint against Totaro, asserting fraud and intentional misrepresentation 

claims based on the negotiations in the sale of the Forest Lane property. He 

attached to his complaint all of the above-referenced letters. On July 1, 

2015, the orphans’ court denied Smolsky’s motion for approval to lease or 

purchase the Forest Lane property.2

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2 On appeal, this Court affirmed the orphans’ court’s denial of the 

motion. See In re Estate of Leonard J. Smolsky, Deceased, 141 A.3d 

586 (Pa.Super. 2016) (unpublished memorandum).
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On November 23, 2015, Smolsky served his civil complaint on Totaro. 

On December 11, 2015, Totaro filed preliminary objections, alleging that the 

complaint sought to relitigate the issue brought before the orphans’ court, to 

litigate an issue still pending before this Court on appeal, see supra note 2, 

and was insufficient because Smolsky failed to plead fraud with particularity. 

Smolsky responded to the preliminary objections on December 31, 2015. 

On March 15, 2016, the trial court sustained Totaro’s preliminary objections 

and dismissed Smolsky’s complaint with prejudice. On March 29, 2016, 

Smolsky filed a motion for oral argument to open judgment, along with a 

memorandum of law in support. On April 15, 2016, Smolsky filed a notice of 

appeal.3

Smolsky raises two issues on appeal:

I. DID THE LOWER COURT SHOW ILL-WILL OR BIAS 

TO [SMOLSKY] WITH FAVORITISM TO [TOTARO] BY 

MISCONSTRUING THE CAUSE OF ACTION AND 

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3 Smolsky did not file his notice of appeal within 30 days as required 

by Pennsylvania Rule of Appellate Procedure 903, as the Bucks County 

Prothonotary received this notice of appeal on the 31st day. Smolsky claims 

that he complied with Rule 903’s requirement because he delivered the 

notice of appeal to prison officials for mailing on April 8, 2016, thus meeting 

the prisoner mailbox rule. See Thomas v. Elash, 781 A.2d 170, 176 

(Pa.Super. 2001) (extending prisoner mailbox rule to prisoner pro se appeals 

in civil matters). However, Smolsky has the burden of proving that he 

delivered the notice of appeal for mailing within the 30-day window. Id. 

The only proof that Smolsky provides is an unsworn verification, which is 

insufficient to prove the date of mailing. Id. “Normally, in such a case, we 

would remand to the trial court for a hearing on the issue.” Id. However, 

no remand is necessary because we conclude that Smolsky is not entitled to 

relief on the merits. Id.
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FACTS OF THE CASE AS WELL AS IGNORING 

DOCUMENT EVIDENCE ATTACHED TO THE 

COMPLAINT’S PRIVATE RIGHT CAUSE OF ACTION 

PLEADING FRAUD, FRAUDULENT REPRESENTATION 

AND INTENTIONAL FRAUDULENT 

MISREPRESENTATION CONDUCT AND ACTIONS 

COMMITTED BY [TOTARO]?

II. BASED UPON [SMOLSKY]’S CLAIMS OF “NEWLY 

DISCOVERED EVIDENCE” WAS IT ERROR TO NOT 

HOLD AN ORAL ARGUMENT HEARING ON 

[SMOLSKY]’S TIMELY FILED MOTION TO OPEN 

JUDGMENT?

Smolsky’s Br. at 4 (suggested answers omitted).

Our standard of review of an order sustaining or overruling preliminary 

objections “is to determine whether the trial court committed an error of 

law. When considering the appropriateness of a ruling on preliminary

objections, the appellate court must apply the same standard as the trial 

court.” Perelman v. Perelman, 125 A.3d 1259, 1263 (Pa.Super. 2015) 

(quoting Haun v. Comm. Health Sys., Inc., 14 A.3d 120, 123 (Pa.Super. 

2011)) (internal citations omitted), app. denied, 141 A.3d 435 (Pa. 2016).

Where affirmance of the trial court’s order sustaining 

preliminary objections would result in the dismissal of an 

action, we may do so only when the case is clear and free 

from doubt.

To be clear and free from doubt that dismissal is 

appropriate, it must appear with certainty that the law 

would not permit recovery by the plaintiff upon the facts 

averred. Any doubt should be resolved by a refusal to 

sustain the objections. We review the trial court’s decision 

for an abuse of discretion or an error of law. A demurrer 

tests the sufficiency of challenged pleadings. Fact-based 

defenses, even those which might ultimately inure to the 

defendant's benefit, are thus irrelevant on demurrer.
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Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539, 544 

(Pa.Super. 2005) (quoting Werner v. Plater-Zyberk, 799 A.2d 776, 784 

(Pa.Super. 2002)) (internal citations and quotation marks omitted).

First, Smolsky asserts that the trial court improperly sustained Totaro’s 

preliminary objections and dismissed the complaint based on bias and 

favoritism toward Totaro.4 Smolsky’s Br. at 11. Smolsky argues that his 

civil complaint seeks to hold Totaro personally liable for his dealings with 

Smolsky. Id. Further, Smolsky contends that the orphans’ court lacked 

jurisdiction to preclude Smolsky from advancing his fraud and intentional 

misrepresentation claims. Id. at 12. He asserts that the trial court “does 

not address the well pled facts of this case at all,” instead “discuss[ing 

Smolsky]’s incarceration with more vim and vigor far beyond the scope of 

the case litigation issues and facts pled while ignoring the ‘fraud’ causes of 

action completely.” Finally, Smolsky argues that his fraud and intentional 

misrepresentation claims are properly pled. Id. We disagree.

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4

Preliminarily, we conclude that Smolsky’s claims that the trial court 

showed bias and favoritism to Totaro are meritless. Smolsky presents no 

evidence of his claims, instead baldly asserting that the trial court’s ruling 

that Smolsky was collaterally estopped from relitigating the issue of Totaro’s 

duty “shows bias and favoritism towards [Totaro] because he is an attorney” 

and because “[Smolsky] is incarcerated on totally unrelated matters.” 

Smolsky’s Br. at 11. Because “claims [of bias] against a trial judge should 

not be made without clear support for the same in the record,” Zdrok v. 

Main Line Nat. Mortg. Co., 921 A.2d 1226, 1229 (Pa.Super. 2007), and 

“[a]dverse rulings alone do not establish the requisite bias warranting 

recusal,” Arnold v. Arnold, 847 A.2d 674, 681 (Pa.Super. 2004), we reject 

Smolsky’s claims of bias and favoritism.
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“Pennsylvania is a fact-pleading jurisdiction.” Sevin v. Kelshaw, 611 

A.2d 1232, 1235 (Pa.Super. 1992). “A complaint must therefore not only 

give the defendant notice of what the plaintiffs’ claim is and the grounds 

upon which it rests, but it must also formulate the issues by summarizing 

those facts essential to support the claim.” Id.

Under Pennsylvania Rule of Civil Procedure 1019(b), plaintiffs who 

assert fraud claims must aver fraud or mistake with particularity. This rule 

is meant to “protect those against whom generalized and unsupported fraud 

may be levied.” Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066, 1072 

(Pa.Super. 2003). “Thus, a party raising a claim of fraud must set forth in 

its pleadings specific facts to support the alleged fraud.” Id.

Averments of fraud are meaningless epithets unless 

sufficient facts are set forth which will permit an inference 

that the claim is not without foundation or offered simply 

to harass the opposing party and to delay the pleader's 

own obligation. . . . The pleadings must adequately 

explain the nature of the claim to the opposing party so as 

to permit him to prepare a defense and they must be 

sufficient to convince the court that the averments are not 

merely subterfuge.

Id. at 1072-73 (quoting Bata v. Central-Penn Nat. Bank of 

Philadelphia, 224 A.2d 174, 179 (Pa. 1966)).

To prove fraud or intentional misrepresentation, the plaintiff must 

establish:

(1) a representation; (2) which is material to the 

transaction at hand; (3) made falsely, with knowledge of 

its falsity or recklessness as to whether it is true or false; 

(4) with the intent of misleading another into relying on it; 
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(5) justifiable reliance on the misrepresentation; and (6) 

the resulting injury was proximately caused by the 

reliance.

Milliken v. Jacono, 60 A.3d 133, 140 (Pa.Super. 2012).

In his complaint, Smolsky alleges that Totaro falsely represented that 

he would negotiate with Smolsky regarding the Forest Lane property and 

beginning on January 14, 2015, Totaro “beg[a]n a vexatious plight of deceit, 

fraud, fraudulent representation and intentional fraudulent 

misrepresentation of facts to falsely mislead [Smolsky] into relying on those 

facts as true all to the harms, injury and damage to [Smolsky] when 

[Totaro] never intended to deal truthfully or fairly with [Smolsky].” Compl. 

at ¶ 4-5. Smolsky alleges that, among other things, Totaro informed him, 

through a secretary, that there was a conflict of interest that prevented 

Totaro from discussing the estate administration with Smolsky. Id. ¶ 5. 

Smolsky continues by asserting that the secretary informed him that all his 

concerns should be placed in writing and Totaro would address each of those 

in a separate letter. Id. ¶ 6. According to Smolsky, these delays harmed 

his inheritance and allowed Totaro to “pad his pockets with undue extra uncalled for work.” Id.

Smolsky further avers that on January 22, 2015, Totaro told Smolsky 

that if he withdrew the motion pending before the orphans’ court, then 

Totaro would sign Smolsky’s parole home plan form and allow Smolsky to 

lease or purchase the Forest Lane property. Id. ¶ 7. He then alleges that 

Totaro “continued not to deal with [him] all to [Smolsky]’s continued 
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confinement, injury, harms and damage by [Totaro] delaying administration 

under false pretenses.” Id. (emphasis in original). Smolsky then refers to a 

January 23, 2015 letter from Totaro, wherein Totaro stated he would 

continue to negotiate with Smolsky if Smolsky could provide a reasonable 

plan. Id. ¶ 8. Smolsky avers that this was ongoing fraud, specifically to 

deprive Smolsky of the Forest Lane property and to “pad [Totaro’s] own 

administrative pockets through ‘self-dealing.’” Id.

Smolsky then avers that on March 23, 2015, Totaro wrote another 

letter to Smolsky informing Smolsky that an agreement of sale was in place 

for the Forest Lane property, that Totaro had the authority to enter into this 

agreement of sale, and that he would abide by the instructions of the court. 

Id. ¶ 9. According to Smolsky, however, Totaro “prior thereto continuously 

represented to [Smolsky] and all the beneficiaries that [Totaro] could NOT 

sell any estate properties of the Deceased to a beneficiary without Court 

approval or the consent of all beneficiaries agreeing to it.” Id. Smolsky 

alleges that the prior communications were thus fraud and intentional 

misrepresentations designed “to keep the realty of the Deceased from 

Smolsky and the other beneficiaries” and “create work to deprive [Smolsky] 

of his inheritance.” Id.

Smolsky also attached the letters, which include his own handwritten 

annotations. A letter from Totaro to the beneficiaries on December 17, 2014 

states that Smolsky has an interest in buying the property through his 

distributive share and asks the other beneficiaries to respond within 10 days 
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if they object to such a sale. The next letter is from Smolsky to Totaro on 

January 14, 2015, wherein he asserts that there is no conflict of interest 

between himself and Totaro and attached a “boiler-plate lease-purchase, 

proposed-agreement on property.” Next is a letter from Smolsky to Totaro 

on January 22, 2015, wherein Smolsky expresses his understanding that 

Totaro “will promptly authorize me to lease/purchase the [Forest Lane] 

property . . . so that [Smolsky] may have a place to live and reside . . ., 

upon receipt of [an] enclosed praecipe and its filing to withdraw [the] 

motion.” 

The next attachment is a letter from Totaro to Smolsky on January 23, 

2015, wherein Totaro explains that the estate is having difficulty paying off 

various debts. Totaro continues that the lease/purchase agreement 

enclosed with Smolsky’s earlier letter, which allegedly offered to lease the 

Forest Lane property at $500 per month, would not cover the lien Wells 

Fargo held on the property for $1,572 per month. With respect to Smolsky’s 

claim that his brother and sister would give up their distributive shares to 

help Smolsky purchase the property, Totaro responds that he would need 

something in writing from each of them and would need to determine how 

the other heirs would be compensated. Specifically, Totaro states that “once 

you [(Smolsky)] give me a more specific plan that will pay all the expenses 

with regard to the Forest Lane property, I will be happy to submit the 

proposal to the other heirs for approval.” Notably, at the end of the letter, 

Totaro states that the estate “will continue to market the property, but will 
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continue to negotiate with you if you can provide . . . a reasonable plan.” 

Smolsky finally attaches a letter from Totaro dated March 23, 2015, which 

states:

This is to inform you that I have entered into an 

Agreement of Sale for the [Forest Lane property]. The 

sale price is $100,000 and settlement is to occur on or 

before May 16, 2015. 

I also understand that you have filed a petition to have 

me, as Administrator d.b.n., c.t.a of the Smolsky estate 

enter into a lease agreement with you for this property. 

Although it is my position that I as Administrator have the 

authority to enter into an Agreement of Sale for this 

property without court authorization, and also to reject 

your lease agreement offer, I have requested the 

[orphans’ c]ourt to schedule a hearing on your petition so 

you could advise the court as to your position. I will abide 

by the instructions given to me by the [orphans’ c]ourt.

We conclude that Smolsky has failed to sufficiently and particularly 

plead his fraud and related intentional misrepresentation claims, albeit on a 

different basis than the trial court.5 Smolsky’s claims of fraud, which 

contend that Totaro caused a delay in the distribution of estate assets by 

failing to negotiate Smolsky’s desired purchase of the Forest Lane property, 

is belied by the documents Smolsky attached to his complaint. These 

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5

 This Court is not bound by the rationale of the trial court, and we 

may affirm on any basis. See In re Jacobs, 15 A.3d 509, 509 n.1 

(Pa.Super. 2011). In sustaining Totaro’s preliminary objections, the trial 

court found that Smolsky’s complaint failed to plead any injury and, even if 

Smolsky could prove some form of injury, he failed to plead how the injury 

was proximately caused by his reliance on Totaro’s statements. Trial Ct. 

Op., 6/14/16, at 12-13.
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documents, in contrast to Smolsky’s pleadings, confirm that Smolsky cannot 

plead, sufficiently or particularly, that Totaro made a false statement or, 

even if Totaro made a false statement, that such a statement was material 

to the discussions regarding the Forest Lane property. 

The December 17, 2014 letter shows that Smolsky, a residual heir of 

the estate, expressed an interest in the Forest Lane property, which Totaro 

conveyed to the other residual heirs of the estate. Smolsky then made a 

unilateral, unbinding offer on the Forest Lane property, which Totaro, as the 

administrator of the estate, could not accept because it would not cover the 

bank lien that encumbered the Forest Lane property, a debt chargeable to 

the estate. In response, Totaro gave Smolsky the option to make an offer 

that would cover these encumbrances while the estate continued to search 

for a buyer. Two months later, Totaro settled on a third-party purchaser 

who offered an amount $10,000 less than appraised value of $110,000. 

Under these circumstances, Smolsky has not pled with sufficient particularity 

that Totaro made any false statement. Rather, the documents that Smolsky 

attached confirm that Totaro explained to Smolsky why he could not accept 

the offer and allowed Smolsky to present an offer that would be amenable to 

the estate. Because “the sine qua non of actionable fraud is the showing of 

deception[,]” see Frowen v. Blank, 425 A.2d 412, 415 (Pa. 1981), and 

Smolsky’s pleadings fail to show any deception by Totaro, we conclude that 

Smolsky has not pled his fraud and intentional misrepresentation claims 

sufficiently or particularly.
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Further, even if any of Totaro’s statements to Smolsky could be 

considered false, Smolsky fails to plead how these statements were material 

to any discussions surrounding the lease or sale of the Forest Lane property. 

“A misrepresentation is material if it is of such character that had it not been 

made, . . . the transaction would not have been consummated.” Sevin v. 

Kelshaw, 611 A.2d 1232, 1237 (Pa.Super. 1992). A review of the 

complaint and attached documents fails to show that had Totaro’s 

statements been false, Smolsky would have discontinued his pursuit of the 

Forest Lane property. Contrarily, the pleadings and documents show that 

Smolsky continued to push an offer that was untenable to the estate and 

Totaro left Smolsky the option to put forth another proposal. Because 

Smolsky fails to plead how any of Totaro’s communications changed his 

position regarding the Forest Lane property, we conclude that he has not 

pled materiality sufficiently or particularly.

For these reasons, we conclude that Smolsky’s pleading deficiencies 

are substantive, as he will not be able to plead a transaction between 

himself and Totaro with sufficient particularity.6 See Budd, 832 A.2d at 

1073.

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6

In light of our conclusion regarding Smolsky’s failure to plead fraud 

and his other related claims with specificity or particularity, we need not 

address Totaro’s other preliminary objections – a demurrer based on res 

judicata and pendency of a prior action – which were sustained by the trial 

court.
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Next, Smolsky contends that the trial court erred in failing to hold a 

hearing on his “timely filed motion to open judgment.” Smolsky’s Br. at 15. 

Smolsky contends that he found new evidence that shows Totaro lied to the 

orphans’ court and would support a motion to open judgment. Id. at 16. 

According to Smolsky, the trial court should have allowed him to argue his 

motion to open judgment, despite “some administrative snafu[7][that] may 

have delayed the lower court from reviewing [his] pending motion for oral 

argument to open judgment.”8 Id. We disagree.

Preliminarily, we note that the certified record contains no petition to 

open judgment; the motion Smolsky filed was titled “motion for oral 

argument to open judgment.” The trial court returned Smolsky’s motion, 

stating that it was inappropriate for submission under Bucks County Rule of 

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7 The “administrative snafu” to which Smolsky refers was the trial 

court returning Smolsky’s motion because it was inappropriate for 

submission under Bucks County Local Rule of Civil Procedure 208.3(b) and 

was unclear regarding the relief sought, as there was no judgment in the 

matter and no motion to open judgment was pending. See Return of 

Application, 4/14/16.

8 Smolsky’s remaining arguments repeat his fraud averments, at one 

point even suggesting that Totaro should be disbarred, Smolsky’s Br. at 17, 

and that Totaro is equitably estopped from changing his position before the 

trial court in the civil matter, id. at 18. While we are “wiling to liberally 

construe materials filed by a pro se litigant,” O’Neill v. Checker Motors 

Corp., 567 A.2d 680, 682 (Pa.Super. 1989), Smolsky failed to raise these 

issues in his Pennsylvania Rule of Appellate Procedure 1925(b) statement. 

See Pa.R.A.P. 1925(b)(4)(vii). Therefore, he had waived these claims.
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Civil Procedure 208.39and that it was unclear regarding the relief sought, as 

“[n]o judgment has been entered in this matter,” and “[n]o motion to open 

judgment is pending.” Return of Application, 4/22/16. Further, even if 

judgment had been entered and Smolsky had filed his motion correctly, 

Smolsky did not file a petition to open judgment in accordance with 

Pennsylvania Rule of Civil Procedure 2959. Therefore, no motion existed 

upon which the trial court could schedule an oral argument.

Order affirmed.

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9 Bucks County Rule of Civil Procedure 208.3(b) provides:

(1) This rule shall govern disposition of:

(a) rules to show cause to which responses in 

opposition have been filed;

(b) preliminary objections;

(c) motions for judgment on the pleadings;

(d) motions for summary judgment;

(e) objections to written discovery requests; 

and

(f) such other miscellaneous applications as 

may be designated by the Court.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/19/2017