In Re: Lien Asserted Against Heffran, M. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
IN RE: LIEN ASSERTED AGAINST IN THE SUPERIOR COURT OF
MATTHEW HEFFRAN PENNSYLVANIA
APPEAL OF: MATTHEW HEFFRAN
No. 2140 EDA 2013
Appeal from the Judgment Entered October 30, 2013
in the Court of Common Pleas of Pike County
Civil Division at No.: 1389-2012
BEFORE: SHOGAN, J., FITZGERALD, J.*, and PLATT, J.**
DISSENTING MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 03, 2014
I respectfully dissent. In my view, Appellant failed to present clear
and convincing evidence of fraud, or any of his additional claims. I discern
no abuse of discretion or error of law. Therefore, I would conclude, under
our standard of review, that the trial court properly granted a directed
verdict in favor of Appellee. Accordingly, I would affirm.
To prove fraud, Appellant was required to establish the following
elements:
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*
Former Justice specially assigned to the Superior Court.
**
Retired Senior Judge assigned to the Superior Court.
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(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; (5) justifiable reliance
on the misrepresentation; and (6) the resulting injury was
proximately caused by the reliance.
Weissberger v. Myers, 90 A.3d 730, 735 (Pa. Super. 2014) (citation
omitted). From my review of the record, Appellant failed to prove any of
these elements.
oof to prove [a] fraud claim is clear and
convincing evidence. Clear and convincing evidence is the highest burden
in our civil law and requires that the fact-finder be able to come to clear
conviction, without hesitancy, of the truth of the precise fact Id.
(citation omitted, emphasis added).
The learned Majority acknowledges that evidence of fraud must be
clear and convincing. (See Majority, at *5). Nevertheless, assuming,
(without citation to authority, or the record), that the intent of Appellee
(Id.
dispositi -and-
convincing evidence to a mere hypothetical uncertainty.
well-settled clear-and-convincing standard for his burden of proof.
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Furthermore, in my view, by not addressing the six elements required
to establish fraud, and relying instead on an incidental mistake of the trial
court, (see infra at *4 n.3), the learned Majority errs in disregarding the
claims
are, in reality, predicated.
Similarly, I can discern no error of law or abuse of discretion in the
the learned Majority, punitive damages are appropriate only in cases of
denials notwithstanding, all of his claims, including the punitive damages
claim, rely on the same predicate, the purported attempt to collect on the
allegedly fraudulent miscalculation of the subrogation lien. Absent this
claim, no others remain.
Taking the evidence here in the light most favorable to Appellant as
the non-moving party, there was vigorous disagreement, most notably
between counsel, and various apparent mistakes on both sides, over
calculation of the amount of the subrogation lien (representing how much
Appellant had to reimburse the workers compensation carrier, out of the
settlement he reached with the tortfeasor, for funds the insurer had already
advanced to him). There is no dispute that Appellant owed some amount to
Appellee to satisfy the subrogation lien.
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The record is replete with instances of dilatory and uncooperative
well as his apparent delay in reporting the settlement with the tortfeasor
(making it impossible to calculate an exact amount for repayment of the
subrogation lien), engendered aggressive strategic responses.
ed egregious conduct,
evil motive or reckless indifference.
In my opinion, this deficit was not remedied by the simple expedient of
having a de facto expert witness,1 who only reviewed the limited
documentation2 provided to him by counsel for Appellant, proclaim
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1
James C. Haggerty, Esq. testified over the objection of counsel for
Appellee. (See N.T. Trial, 6/18/13, at 58-59). It is undisputed that he had
no direct involvement in the underlying case. The trial court stresses that
Attorney Haggerty was never formally qualified as an expert witness. (See
Trial Court Opinion, 9/12/13, at 6). The record confirms that he was never
formally offered, let alone accepted, as an expert witness.
2
E.g.
of the
final calculation of the subrogation amount, and a persistent issue in the
litigation. (See N.T. Trial, at 101).
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involvement in the case, Attorney Haggerty could not testify as a fact
witness. The record confirms that Haggerty was never properly admitted as
an expert. personal opinions are no substitute for proof
of facts.
issue of material fact, which would require that any of the claims at issue go
to the jury.3
Moreover, I would conclude that all of
waived for failure to develop an argument supported by pertinent citation to
authority. Mere recitation of multiple cases, and appendage of a blanket
conclusion, without specific, pertinent analysis applying the principles of the
cited cases to the case on appeal, is insufficient to develop an argument or
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3
I agree with the learned Majority that the trial court incorrectly relied on
conclusion. (Majority, at 6). This was a specific concession (used, in the
event, to commend Appella
taking advantage). (See N.T. Trial, at 80). However, in the paragraph
following the one cited by the Majority, the trial court qualifies its conclusion
Op., at 5). Furthermore, for
completeness, this was not the only reference to a mistake. Mr. Haggerty
did not dispute that in his direct testimony he had used the term mistake
seven
do See N.T. Trial, at 101). To be sure, Attorney Haggerty took many
factual evidence of the fraud cla
apparent over-
conclusion that Appellant failed to produce clear and convincing evidence of
fraud remains unimpeached. We may affirm the decision of the trial court
on any basis, provided it is legally correct. See Matharu v. Muir, 86 A.3d
250, 261 (Pa. Super. 2014).
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to enable meaningful appellate review. (See -15);
see also
has been shown r see
fails to comply with Pa.R.A.P. 2119(c), Reference to record
develop an argument for [the appellant], nor shall we scour the record to
find evidence to support an argument; consequently, we deem this issue
J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402,
411 (Pa. Super. 2012) (citation omitted). I would conclude here that
Appellant failed to present a case for the jury at trial, and failed to develop a
pertinent argument on appeal. The trial court properly granted a directed
verdict under our standard of review.
Accordingly, I respectfully dissent.4
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4
For the sake of completeness, I note my disagreement with the learned
eably
distinct legal claim, namely, clear and convincing evidence, sufficiency of
evidence for the additional (non-fraud) claims, and whether there were
genuine issues of material fact. (See
none of the separate issues merit relief on any other basis, it is not
necessary to address them further.
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