Luo, J. v. Lowe's Home Center, LLC ( 2018 )

J-S61032-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JENN-CHING LUO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
LOWE'S HOME CENTERS, LLC, JAMES : No. 284 EDA 2018
R. WALTERS, and CHRIS S. ERNEST :
Appeal from the Judgment Entered February 12, 2018
In the Court of Common Pleas of Chester County Civil
Division at No(s): 2014-09864
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY PANELLA, J. FILED NOVEMBER 02, 2018
Jenn-Ching Luo appeals pro se from the judgment1 entered in the
Chester County Court of Common Pleas following the trial court’s denial of his
petition to vacate his arbitration award. Appellant raises many, many
challenges to the trial court’s rulings over the three-year course of this matter.
Given the woeful state of Appellant’s brief, we dismiss this appeal.
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1 Appellant purports to appeal, in part, from the order entered December 27,
2017, denying his petition to vacate an arbitration award. See Notice of
Appeal, 1/18/18. However, “a court order denying a petition to vacate … is
not an appealable order.” Dunlap by Hoffman, State Farm Ins. Co., 546
A.2d 1209, 1210 (Pa. Super. 1988). Rather it is the final judgment entered
following the denial of this petition which is appealable. See id., at 1211.
Judgment was not entered until February 12, 2018, making Appellant’s notice
of appeal prematurely filed. However, as judgment has been entered in this
matter, we will treat the notice of appeal previously filed in this case as filed
after the entry of judgment. See Pa.R.A.P. 905(a)(5). The appeals statement
has been corrected.
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Due to our disposition, a detailed recitation of the facts and procedural
history of this case is unnecessary. Briefly, in the spring of 2014, Appellant
contracted with Appellee, Lowe’s Home Centers, LLC (“Lowe’s”) for the
installation of a new residential roof, skylights, and gutters. The contract
between Appellant and Lowe’s contained a standard arbitration clause. Lowe’s
hired Kolb Roofing Company, owned by Appellee, James R. Walters, to
perform the work described in Appellant’s installation contract.
Walters completed the work on Appellant’s property on June 3, 2014.
Following the installation, Appellant contacted Lowe’s claiming Walters failure
to adequately protect against a brief rainstorm during the installation
damaged his property. Lowe’s contracted with Appellee, Charles S. Ernest, to
evaluate the alleged damages to Appellant’s property. However, when Ernest’s
estimate of the damage did not meet Appellant’s expectations, Appellant filed
suit against Lowe’s, Walters, and Ernest in the Chester County Court of
Common Pleas.
Following a series of motions and trial court rulings, this case proceeded
to arbitration on July 7, 2017. The arbitrator found in favor of Appellant and
against Lowe’s and Walters in the amount of $2,034.07.2 As the arbitrator’s
award was significantly below Appellant’s requested damages of $451,000.00,
Appellant filed a petition to vacate the arbitration award. This appeal follows
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2 The arbitrator found that Ernest was not liable to Appellant.
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the trial court’s denial of his petition to vacate, and subsequent confirmation,
of his arbitration award.
Preliminarily, we note Appellant raises a staggering 23 issues in his
appellate brief. Issue selection is a key hallmark of appellate advocacy. Justice
Robert H. Jackson warned of the dangers of this shotgun approach many years
ago:
Legal contentions, like the currency, depreciate through
overissue. The mind of an appellate judge is habitually receptive
to the suggestion that a lower court committed an error. But
receptiveness declines as the number of assigned errors
increases. Multiplicity hints at a lack of confidence in any one. Of
course, I have not forgotten the reluctance with which a lawyer
abandons even the weakest point lest it prove alluring to the same
kind of judge. But experience on the bench convinces me that
multiplying assignments of error will dilute and weaken a good
case and will not save a bad one.
Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,”
at 130 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy Before the United
States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)). This “much quoted”
advice, unfortunately, “often ‘rings hollow’….” Commonwealth v. Robinson,
864 A.2d 460, 480 n.28 (Pa. 2004) (citing Ruggero J. Aldisert, J. “The
Appellate Bar: Professional Competence and Professional Responsibility–A
View From the Jaundiced Eye of the Appellate Judge,” 11 Cap. U.L. Rev. 445,
458 (1982)). But its importance cannot be overstated. See, e.g., Jones v.
Barnes, 463 U.S. 745, 751-752 (1983) (“Experienced advocates since time
beyond memory emphasized the importance of winnowing out weaker
arguments on appeal and focusing on one central issue if possible, or at most
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on a few key issues.”); Howard v. Gramley, 225 F.3d 784, 791 (7th Cir.
2000) (“[O]ne of the most important parts of appellate advocacy is the
selection of the proper claims to urge on appeal. Throwing in every
conceivable point is distracting to appellate judges, consumes space that
should be devoted to developing the arguments with some promise, inevitably
clutters the brief with issues that have no chance … and is overall bad appellate
advocacy.”); Aldisert, supra at 129 (“When I read an appellant’s brief that
contains more than six points, a presumption arises that there is no merit to
any of them.”)
Nevertheless, we would ordinarily proceed by evaluating Appellant’s
preserved arguments. However, perhaps due to Appellant’s attempt to raise
such an extraordinary number of issues on appeal, the resulting brief is,
frankly, a convoluted mess that violates several of the appellate rules. We
need not catalog the violations at length here. We need only highlight the
most egregious violations and problems.
Importantly, we recognize that
appellate briefs and reproduced records must materially conform
to the Pennsylvania Rules of Appellate Procedure. This Court may
quash or dismiss an appeal if the appellant fails to conform to the
requirements set forth in the Pennsylvania Rules of Appellate
Procedure.
Commonwealth v. Adams, 882 A.2d 496, 497 (Pa. Super. 2005) (citations
omitted).
Rule 2119 governs the argument section of an appellate brief. See
Pa.R.A.P. 2119. The rule provides:
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(a) General rule. 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.
(b) Citations of authorities. Citations of authorities in briefs
shall be in accordance with Pa.R.A.P. 126 governing citations of
authorities.
(c) Reference to record. If reference is made to the pleadings,
evidence, charge, opinion or order, or any other matter appearing
in the record, the argument must set forth, in immediate
connection therewith, or in a footnote thereto, a reference to the
place in the record where the matter referred to appears (see
Pa.R.A.P. 2132).
(d) Synopsis of evidence. When the finding of, or the refusal to
find, a fact is argued, the argument must contain a synopsis of all
the evidence on the point, with a reference to the place in the
record where the evidence may be found.
Pa.R.A.P. 2119(a)-(d).
“This Court will not consider the merits of an argument which fails to
cite relevant legal case or statutory authority. Failure to cite relevant legal
authority constitutes waiver of this claim on appeal.” In re Estate of Whitley,
50 A.3d 203, 209 (Pa. Super. 2012) (citations and quotation marks omitted).
While we recognize Appellant is proceeding pro se in this appeal, we
note that, “[a]lthough this Court is willing to construe liberally materials filed
by a pro se litigant, pro se status generally confers no special benefit upon an
appellant.” Commonwealth v. Lyons, 833 A.2d 245, 251-252 (Pa. Super.
2003). As such, a pro se litigant must comply with the requirements as set
forth in the Pennsylvania Rules of Appellate Procedure. See id., at 252.
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Our review of Appellant’s brief reveals substantial and numerous
violations of the appellate rules. Although his brief contains an argument
section, it is not divided “into as many parts as there are questions to be
argued.” Pa.R.A.P. 2119(a). Appellant raises 23 issues on appeal, but only
divides the argument portion of his brief into five sections. While some of
these sections include subsections, they are repetitive of previously argued
issues and do not correspond with the issues raised on appeal.
Additionally, throughout the entirety of his argument section, Appellant
fails to cite to the record. See Pa.R.A.P. 2119(c)-(d). Instead, claiming his
own recitation of the facts was “verified,” Appellant cites to his own brief rather
than the record on appeal. See, e.g., Appellant’s Brief, at 59 (“[I]t has been
verified previously that [Appellant] completely complied with the Pennsylvania
Rule of Civil Procedure to serve the 10-day notice … on Walters. (This Br. pp.
30-31)”).
Finally, and most importantly, while Appellant’s brief contains numerous
references to case law, it is devoid of references to relevant case law. See
Pa.R.A.P. 2119(a). The majority of Appellant’s citations only serve to define
legal concepts, exist outside our jurisdiction, or are entirely wildly inaccurate
statements of the law. See, e.g., Appellant’s Brief, at 65 (defining “defense
upon the merits”), 61 (citing “Reshard v. McQueen, 562 So. 2D 811 (Fla. 1st
DCA 1990)”)), 62 (citing Frow v. De La Vega, 82 U.S. 552 (1872) for
proposition that defaulting defendant could not defend a second amended
complaint; in fact, Frow does not contemplate a second amended complaint).
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The remainder of his citations do not support the legal positions Appellant has
taken in his brief. See, e.g., Appellant’s Brief, at 59-60 (citing law relating to
a petition to strike in support of his argument that the trial court erred in
granting Walters’s petition to open). Appellant’s brief, unsupported by
references to the record or citation to relevant authority, does not provide this
Court with any basis upon which to engage in meaningful appellate review.
Given the numerous problems with Appellant’s brief, we are constrained
to dismiss this appeal.3
Appeal dismissed. Motions denied and denied without prejudice.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/2/18
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3 On October 5, 2018, Walters filed a “Motion for Cost of Producing the
Supplemental Reproduced Record.” Walters is entitled to the award of costs.
See Pa.R.A.P. 2741(1). The costs recoverable include the costs of paperbooks
(briefs and reproduced records). See Pa.R.A.P. 2742. However, Walters
should not be seeking costs in this Court. The proper procedure is to file a bill
of costs in the prothonotary of the trial court. See Pa.R.A.P. 2762(a). See
also G. Ronald Darlington, et al., West’s Pennsylvania Practice, Pennsylvania
Appellate Practice § 2762:1, at p. 834 (2009-10 ed.) (“Except in cases that
have gone to the Supreme Court, all appellate costs are to be collected in the
lower court in the same manner as costs in the lower court are normally
collected, that is, through a bill of costs.”)
Additionally, on October 12, 2018, Walters filed a “Motion for Sanctions
Against Appellant.” We deny this motion. See Pa.R.A.P. 2744 (“appellate court
may award as further damages costs).
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