Burda, S. v. Doherty, M. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
STEVEN BURDA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MARY CUSHING DOHERTY, ESQUIRE,
JOO Y. PARK, ESQUIRE,
ANDREW W. FERICH, ESQUIRE, AND
HIGH SWARTZ, LLP
No. 3800 EDA 2015
Appeal from the Order Entered November 19, 2015
in the Court of Common Pleas of Montgomery County Civil Division
at No(s): 2014-27298
BEFORE: SHOGAN, MOULTON, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED DECEMBER 30, 2016
Appellant, Steven Burda, appeals pro se from the order entered in the
Montgomery County Court of Common Pleas granting the motion to dismiss
with prejudice Appellant’s Amended Complaint filed by Appellees, Mary
Cushing Doherty, Esq., Joo Y. Park, Esq., Andrew W. Ferich, Esq. and High
Swartz, LLP.1 We affirm.
The trial court summarized the facts and procedural history as follows:
This case arose out of Appellee [Doherty’s] role as
arbitrator in Appellant’s underlying divorce litigation. On
*
Former Justice specially assigned to the Superior Court.
1
The trial court noted that Appellees “Joo Y. Park and Andrew W. Ferich
were law clerks and/or associates at High Swartz at the time of this case’s
events.” Trial Ct. Op., 1/28/16, at 1 n.1.
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or about October 28, 2011, Appellant, his ex-spouse Alla
Korenman, and Appellee Doherty entered into a binding
“Agreement to Arbitrate.” The Agreement gave Appellee
Doherty the authority to “consider, adjudicate, and make
awards on the economic issues in the pending divorce” and
“to resolve related issues of discovery.”
After arbitration proceedings concluded, Appellee
Doherty issued an Arbitration Award on June 27, 2012.
After both parties made requests for reconsideration and
clarification, Appellee Doherty issued a revised Final
Arbitration Award on September 4, 2012. Appellant was
represented in arbitration by Attorney (now Judge) Daniel
Clifford and subsequently Andrew Laird. Presently,
Appellant represents himself pro se.
After the Final Arbitration Award was issued, Appellant
filed a Petition to Vacate Final Arbitration Award on
October 4, 2012, alleging, inter alia, that the arbitrator,
Appellee Doherty, was improperly biased against him.
Appellant also filed a Petition for Modification or Correction
of Arbitration Award. After a hearing, Judge Daniele
denied both petitions . . . .[2]
On or about October 3, 2014, Appellant initiated the
instant action against [Appellees] for legal malpractice,
among various other causes of action. After oral
arguments, this [c]ourt sustained the majority of
Appellee’s Preliminary Objections, allowing Appellant to file
an Amended Complaint limited to breach of contract
and/or professional negligence causes of action.
Thereafter, Appellees filed a Motion to Dismiss the
Amended Complaint pursuant to Pa.R.C.P. 233.1. This
[c]ourt granted said Motion, dismissing Appellant’s
Amended Complaint with prejudice and barring Appellant
from pursuing additional pro se litigation against Appellees
raising the same or related claims without leave of court.
2
This Court affirmed the trial “court’s orders of December 6, 2012, and
December 13, 2012, dismissing [Appellant’s] petition to vacate final
arbitration award and petition to modify or correct final arbitration award on
the basis of the trial court’s opinion.” Burda v. Korenman F/K/A Burda,
315 EDA 2013 (unpublished memorandum at 8) (Pa. Super. Jan. 15, 2014).
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Trial Ct. Op., 1/28/16, at 1-2 (citation and footnote omitted). Appellant
timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement of
errors complained of on appeal.
Appellant raises the following issues for our review:
1. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures, by not having nor requiring the
parties be sworn-in or otherwise affirmed under oath in the
November argument, thus not having a record under oath
and this is contrary to the rules and legal procedures,
making the argument a legal nullity and default judgment
is not favored by the Courts at any level. (Note: there was
no hearing nor trial, just short-list argument).
2. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures, by not giving an opportunity to
have a hearing nor trial, where a trial by jury was
demanded, and simply granted preliminary objections of
the defendant on grounds not on the records nor in any of
the filings. No swearing-in of the parties or their witnesses
at the time of the argument. No transcripts made
available.
3. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures by simply favoring the attorney
for opposing party versus an educated and well-informed
plaintiff, and by default ruling for the attorney. No
swearing-in of the parties or their witnesses at the time of
the argument. No transcripts made available.
4. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures by ignoring the complete record,
objections, facts and legal authority provided by the
Plaintiff by simply ignoring the true facts of the cases. No
swearing-in of the parties or their witnesses at the time of
the argument. No transcripts made available.
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5. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures by not permitting any witnesses
to testify at any of the proceedings (hearing/trial) and thus
keeping the plaintiff out of court, by further not permitting
nor compelling the Defendants to participate or produce
discovery as properly filed by the Plaintiff, where the
Amended Complaint was not frivolous, and accurate in fact
and law. No swearing-in of the parties or their witnesses
at the time of the argument. No transcripts made
available.
6. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures by allowing hearsay statements
by the defendants’ attorney on an unrelated, complete
different case of the Plaintiff where the Defendant was not
a party at all. No swearing-in of the parties or their
witnesses at the time of the argument. No transcripts
made available.
7. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures by favoring and protecting the
attorney for the defendant, and targeting the pro-se
Plaintiff, simply ruling that Plaintiff had no grounds without
any hearing or trial, and contrary to the record appearing
on the trial docket. No swearing-in of the parties or their
witnesses at the time of the argument. No transcripts
made available.
8. The trial Court (Judge Steven C. Tolliver, Sr.) had erred
and/or grossly abused its discretion, committed an error of
law and legal procedures by accepting ex parte faxes and
other communication from attorney for the defendants.
Appellant’s Brief at 5-6.
As a prefatory matter, we consider whether Appellant has waived the
issues raised on appeal. Our Rules of Appellate Procedure set forth the
required contents of appellate briefs. See Pa.R.A.P. 2111(a)(1)-(11). “The
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statement of the questions involved must state concisely the issues to be
resolved, expressed in the terms and circumstances of the case but without
unnecessary detail.” Pa.R.A.P. 2116(a).
The argument shall be divided into as many parts as there
are questions to be argued; and shall have at the head of
each part─in distinctive type or in type distinctively
displayed─the particular point treated therein, followed by
such discussion and citation of authorities as are deemed
pertinent.
Pa.R.A.P. 2119(a). Citations of authorities must set forth the principle for
which they are cited. Pa.R.A.P. 2119(b).
This Court has stated:
Rule 2119 contains mandatory provisions regarding the
contents of briefs. We have held consistently, [a]rguments
that are not appropriately developed are waived.
It is the appellant who has the burden of establishing
his entitlement to relief by showing that the ruling of the
trial court is erroneous under the evidence or the law.
Where the appellant has failed to cite any authority in
support of a contention, the claim is waived.
Bunt v. Pension Mortg. Assocs., Inc., 666 A.2d 1091, 1095 (Pa. Super.
1995) (quotation marks and citations omitted); accord J.J. Deluca Co. v.
Toll Naval Assocs., 56 A.3d 402, 412 (Pa. Super. 2012).
Instantly, the argument section of Appellant’s brief recites the issues
raised on appeal verbatim without any legal analysis or citation to authority.
Because Appellant has cited no legal authority, he has waived his claims on
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appeal.3 See Pa.R.A.P. 2119(a), (b); J.J. Deluca Co., 56 A.3d at 412;
Bunt, 666 A.2d at 1095. Therefore, we affirm the order of the trial court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/30/2016
3
This Court has noted:
While this court is willing to liberally construe materials
filed by a pro se litigant, we note that appellant is not
entitled to any particular advantage because [he] lacks
legal training. As our supreme court has explained, “any
layperson choosing to represent [himself] in a legal
proceeding must, to some reasonable extent, assume the
risk that [his] lack of expertise and legal training will prove
[his] undoing.”
O'Neill v. Checker Motors Corp., 567 A.2d 680, 682 (Pa. Super. 1989)
(citations omitted).
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