Kuruvila, G. v. Rajaratnam, A. ( 2017 )

J-A13013-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GEORGE KURUVILA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ARASU RAJARATNAM
APPEAL OF: GEORGE KURUVILA &
DEBORAH SILVER, ESQ.
No. 2667 EDA 2016
Appeal from the Order Entered August 3, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): 000450 May Term, 2012
BEFORE: LAZARUS, J., OTT, J., and RANSOM, J.
MEMORANDUM BY LAZARUS, J.:FILED OCTOBER 11, 2017
George Kuruvila and Deborah Silver, Esquire, (collectively
“Appellants”) appeal from the order, entered in the Court of Common Pleas
of Philadelphia County, declaring a mistrial in Kuruvila’s action against Arasu
Rajaratnam and ordering Kuruvila’s counsel, Attorney Silver, to pay a
$13,750.00 award of sanctions to Rajaratnam, defendant in the underlying
action. After our review, we affirm.
Kuruvila filed an action against Rajaratnam on May 9, 2012, alleging
breach of contract, unjust enrichment, constructive fraud, comingling and
diversion of assets, breach of fiduciary duty and an accounting. Following a
two-day trial, the court dismissed the matter with prejudice due to Kuruvila’s
failure to file a complaint within the four-year statute of limitations period.
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Kuruvila appealed. This Court affirmed the dismissal of all claims,
except the equitable claim for an accounting, and remanded to the trial court
for disposition. Kuruvila v. Rajaratnam, 421 EDA 2014 (Pa. Super. filed
April 6, 2015) (unpublished memorandum).1
The accounting action was tried before a jury on June 6-10, 2016, the
Honorable Robert P. Coleman presiding. As a result of what the court
characterized as “[Kuruvila’s] counsel’s deliberate and repeated prejudicial
actions[,]” the court declared a mistrial.2 Trial Court Opinion, 10/27/16, at
2.
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1 The trial court had dismissed this claim based upon the “gist of the action”
doctrine, which is designed to “maintain the conceptual distinction between
breach of contract claims and tort claims.” eToll, Inc. v. Elia/Savion
Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002). This Court
determined that, as pleaded in Kuruvila’s complaint, the action did not sound
in tort, but rather, was an equitable action that is defined as “an adjustment
of the accounts of the parties and a rendering of a judgment for the
balanced ascertained to be due.” Kuruvila, supra, at 20, quoting 1
Am.Jur.2d Accounts & Accounting § 52; 14 Standard Pennsylvania Practice
2d § 81:1.
2 During the 5½-day jury trial, the trial court warned Attorney Silver
repeatedly to stop testifying, to stop interrupting, and to stop giving
speeches. At one point, in response to the trial judge’s signaling her to stop,
Attorney Silver responded: “[P]ut your hand down. I’m not done.” N.T.
Trial, 6/8/16, at 152. Several times during trial, Attorney Silver’s client,
Plaintiff Kuruvila, beseeched his attorney to “sit down,” and “please stop.”
Id. at 158; N.T. Trial, 6/9/16, at 21. At one point, Attorney Silver
gratuitously commented on a defense witness’s credibility: “Great. Great.
But you know what? I don’t believe you[.]” N.T. Trial, 6/10/16, at 61.
“The responsibility is on the trial judge to see that counsel do not
transgress the bounds of what is proper, wholesome, and fair. [The judge]
(Footnote Continued Next Page)
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Kuruvila filed post-trial motions, and Rajaratnam filed a motion for
sanctions and post-trial relief. The court dismissed Kuruvila’s claim with
prejudice and ordered Attorney Silver to pay $13,750.00 in sanctions to
Rajaratnam. Attorney Silver filed a motion to stay enforcement of the
sanctions order pending appeal, which the court granted.
Appellants filed this appeal. The trial court ordered a Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal. On October
24, 2016, Appellants filed a 46-page statement, containing eleven (11)
errors complained of on appeal and pages of argument and sub-parts.3 See
(Footnote Continued) _______________________
accomplishes this end by employing judicious suggestion and, if necessary,
stern admonition.” Ferguson v. Morton, 84 A.3d 715, 723 (Pa. Super.
2013), quoting Libengood v. Penna. R. Co., 55 A.2d 756, 758 (Pa. 1947).
The trial transcripts in this case are replete with instances of counsel’s
disregard of the court’s repeated warnings and admonitions. As a result,
the court ordered a mistrial, sua sponte, and imposed sanctions on Attorney
Silver. See 42 Pa.C.S.A. § 2503(7); Kelley v. Thompson, 474 A.2d 44
(Pa. Super. 1984).
3 Attorney Silver, in what the court characterizes as an “additional effort to
`paper’ th[e] [c]ourt,” challenged the trial transcript and submitted
extensive errata sheet revisions. Trial Court Opinion, 10/27/16, at 2. The
court, on September 1, 2016, entered an order allowing for minor
grammatical changes to the transcript, but denied her requested substantive
changes. Id. The court also stated that it “has been flooded with
voluminous, redundant and superfluous pre[-] and post-trial filings and
supplemental filings by [Kuruvila’s] counsel throughout this trial.” Id. at 3.
We also note that in the prior appeal to this Court, Appellant Kuruvila raised
21 issues, and this Court reminded Appellant that the better practice on
appeal is to “distil one’s claims down to those with a meaningful likelihood of
success.” Kuruvila, supra (citing Commonwealth v. Robinson, 864 A.2d
460, 480 n.28 (Pa. 2004), quoting Ruggero J. Aldisert, The Appellate bar:
Professional Competence and Professional Responsibility - A View from the
(Footnote Continued Next Page)
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Pa.R.A.P. 1925(b) Statement, 10/24/16. The trial court determined it was
“impossible to engage in a meaningful analysis of the issues” and suggested
this Court find the matters waived. We agree.
Rule 1925(b)(4)(iv) provides, in relevant part: “The Statement shall
not be redundant or provide lengthy explanations as to any error.” Pa.R.A.P.
1925(b)(4)(iv). Here, Appellants have listed eleven errors complained of on
appeal with over forty (40) pages of explanations. Moreover, we note in the
first claim of error, Appellants refer to the Pennsylvania Rules of Criminal
Procedure, in particular Rule 605, which are inapplicable here. Careful
framing of the claims presented is the first step in providing for meaningful
review. Our review of the trial transcripts in this case evidences palpable
frustration on the part of the trial judge, and the Rule 1925(b) statement
compounded that frustration. In Kanter v. Epstein, 866 A.2d 394 (Pa.
Super. 2004), this Court found that the only “motive underlying such
conduct is to overwhelm the court system to such an extent that the courts
are forced to throw up their proverbial hands in frustration.” Id. at 402. In
Kanter, we held that the appellants’ failure to set forth issues in a concise
manner impeded the trial court's ability to prepare an opinion addressing the
issues appellants sought to raise before this Court, thereby frustrating this
(Footnote Continued) _______________________
Jaundiced Eye of the Appellate Judge, 11 Cap.U.L.Rev. 445, 458 (1982)
(“[W]hen I read an appellant’s brief that contains ten or twelve points, a
presumption arises that there is no merit to any of them.”)) (emphasis in
original).
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Court’s ability to engage in meaningful and effective appellate review. We
agree with the trial court that review here is significantly hampered, and,
therefore, we are constrained to find Appellants have waived their claims on
appeal. See Jones v. Jones, 878 A.3d 86 (Pa. Super. 2005) (when
appellant fails adequately to identify in concise manner issues sought to be
pursued on appeal, trial court is impeded in preparation of legal analysis).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/11/2017
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