Ploeger, A. v. Tryp By Wyndham ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
APRIL PLOEGER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
TRYP BY WYNDHAM : No. 2600 EDA 2019
Appeal from the Order Entered July 10, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 181103039
BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY McCAFFERY, J.: FILED JUNE 22, 2020
April Ploeger (Appellant) appeals from the order entered in the
Philadelphia County Court of Common Pleas, sustaining preliminary objections
filed by Appellee Tryp by Wyndham (Tryp) and dismissing Appellant’s
complaint without prejudice. We conclude Appellant’s issues are waived for a
deficient brief and, accordingly, affirm.
The trial court summarized the facts and procedural history as follows:
On December 4, 2016, [Appellant] checked into Tryp by
Wyndham Hotel . . . located at 345 West 35th Street, New York,
NY 10001. [Appellant] claims jewelry and personal items in the
amount of $50,000 were stolen from a safe in her hotel room.
[Appellant] filed a complaint [in the Philadelphia County Court of
Common Pleas] to recover damages. Tryp [ ] filed preliminary
objections to the complaint which argued jurisdiction was not
proper in Pennsylvania. On July 8, 2019, this court sustained
Tryp[’s] Preliminary Objections[, finding Appellant failed to
establish the court had general jurisdiction or specific jurisdiction
over Tryp.]
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[Appellant] filed a timely appeal from the court’s July 8, 2019
order and timely complied with this court’s order to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b).
Trial Ct. Op., 1/17/20, at 1 (unpaginated) (paragraph break added).
Appellant presents one issue for our review:
Did the trial [c]ourt commit reversible error in finding that it did
not have in personam jurisdiction over the corporate [d]efendant,
[Tryp]?
Appellant’s Brief at 1.
The entirety of Appellant’s counseled brief, excluding the cover page and
certificate of service, spans two pages and two lines. The argument section
states, in sum:
[Appellant’s] response to Tryp’s Fourth Amended Complaint
[sic] asserted that . . . she was harmed by [Tryp’s] failure to take
reasonable care of valuable jewelry placed by [Appellant] in a safe
provided by Tryp and locked with key [sic] provided by Tryp. Tryp
is a subsidiary of Wyndham. Wyndham continuously conducts
business in this Commonwealth, thus vesting jurisdiction in this
matter on courts of the Commonwealth, and in Philadelphia, thus
causing venue to lie in the Courts of Philadelphia.
Appellant’s Brief at 2. The brief lacks discussion of, or even citation to, any
legal authority.
Tryp points out that Appellant’s argument consists of “one lone
paragraph devoid of a single citation to the record or any case law,” and that
in any event, although Tryp “is a franchisee of Wyndham Worldwide Hotels . .
. each hotel is individually owned” and here, Tryp is owned by Eros
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Management and Realty LLC, a limited liability company incorporated in New
York.1 Tryp’s Brief at 6.
In a five-page reply brief, Appellant argues that “[i]n addition to any
other bases for . . . jurisdiction,” the trial court could exercise personal
jurisdiction over Tryp under Subsection 5322(a)(4) of our Judicial Code:
(a) General rule.—A tribunal of this Commonwealth may
exercise personal jurisdiction over a person . . . who acts directly
or by an agent, as to a cause of action or other matter arising
from such person:
* * *
(4) Causing harm or tortious injury in this
Commonwealth by an act or omission outside this
Commonwealth.
Appellant’s Reply Brief at 1-2, quoting 42 Pa.C.S. § 5322(a)(4). Appellant
contends that, consistent with this subsection, the cause of harm occurred in
New York and “[i]ts effects continue, unabated, in Philadelphia.” Id. at 2.
Appellant then “copy/pasted” text from Tryp’s website as evidence of Tryp’s
contacts with Pennsylvania. Id. at 3.
Pennsylvania Rule of Appellate Procedure 2111 requires an appellant’s
brief to contain a “[s]ummary of argument” section and an “[a]rgument”
____________________________________________
1 Tryp further notes it previously pleaded this ownership information. See
Tryp’s Brief at 6; Reply Brief of Defendant, Eros Management and Realty LLC,
(Incorrectly Designated as Tryp by Windham) in Support of their Preliminary
Objections, and in Opposition to Plaintiff’s Reply to Preliminary Objections
6/4/19, at 3.
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section, “separately and distinctly entitled.” Pa.R.A.P. 2111(a)(6), (8). “The
summary of argument shall be a concise, but accurate, summary of the
arguments presented in support of the issues in the statement of questions
involved.” Pa.R.A.P. 2118. “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). “If reference is made to the pleadings,
evidence, . . . 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[.]” Pa.R.A.P. 2119(c).
This Court has explained:
Appellate arguments which fail to adhere to these rules may be
considered waived, and arguments which are not appropriately
developed are waived. Arguments not appropriately developed
include those where the party has failed to cite any authority in
support of a contention.
Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa. Super. 2006) (citations
omitted). Thus, failure to cite authority in support of a claim results in waiver
of that argument, Giant Food Stores, LLC v. THF Silver Spring Dev., L.P.,
959 A.2d 438, 444 (Pa. Super. 2008), and it is axiomatic that this Court will
not develop arguments on behalf of an appellant. Bombar v. West Am. Ins.
Co., 932 A.2d 78, 93 (Pa. Super. 2007).
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Here, Appellant’s brief does not contain a summary of the argument and
does not set forth references to the record. See Pa.R.A.P 2111(a)(6),
2119(a). Furthermore, her entire argument consists of three sentences,
including a conclusory statement that Tryp continuously conducts business in
Pennsylvania, thus vesting jurisdiction and venue in Philadelphia’s courts.
Appellant’s Brief at 2. Appellant’s only citation to authority is contained in her
reply brief, where she cites 42 Pa.C.S. § 5322. Appellant’s Reply Brief at 2.
Nevertheless, her sole discussion there is likewise vague as she baldly alleges
that while the cause of the harm occurred in New York, its effects still continue
in Philadelphia. Id. at 2. We emphasize Appellant fails to address, with any
discussion of authority, the trial court’s finding that she failed to establish
general or specific jurisdiction. See Trial Ct. Op. at 2-4. Because her brief
and argument are deficient, Appellant’s claim is waived. See Giant Food
Stores, 959 A.2d at 444; Lackner, 892 A.2d at 29–30.
Moreover, even if we were to reach the merits of Appellant’s issue, no
relief would be due.
Our standard and scope of review over a trial court’s decision to
sustain a litigant’s preliminary objections are well settled:
. . . [W]e accept as true all well-pleaded material facts
set forth in the . . . complaint and all reasonable
inferences which may be drawn from those facts. . . .
Where, as here, upholding sustained preliminary
objections would result in the dismissal of an action, we
may do so only in cases that are 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
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averred. . . We review for merit and correctness—that is
to say, for an abuse of discretion or an error of law. . . .
McCabe v. Marywood Univ., 166 A.3d 1257, 1261 (Pa. Super. 2017)
(citations omitted).
Here, the trial court found Appellant failed to establish the court had
general jurisdiction over Tryp, where Appellant’s complaint is premised on a
claim that Tryp is a subsidiary of Wyndham Hotels, which does business in
Pennsylvania. Trial Ct. Op. at 2-3 (unpaginated), citing, inter alia, 42 Pa.C.S.
§ 5301(a)(2)(i)-(iii) (factors for general jurisdiction over corporations). The
court reasoned that Wyndham Hotels was not named as a party, and in any
event, Tryp has pleaded it is owned by Eros Management and Realty LLC,
which is likewise not a party to this suit. Id. Furthermore, the court found it
was undisputed that Tryp is not registered to do business in, nor provides any
services in, Pennsylvania; the alleged incident occurred in New York; and thus
there was insufficient “evidence of ‘systemic and continuous’ carrying on of
business within Pennsylvania.” Id. at 3 (unpaginated).
The trial court also found Appellant failed to establish it had specific
jurisdiction over Tryp. Trial Ct. Op. at 3-4 (unpaginated), citing, inter alia,
Kenneth H. Oaks, Ltd. v. Josephson, 568 A.2d 215, 216 (Pa. Super. 1989)
(“A court may exercise in personam jurisdiction over a nonresident if (1)
jurisdiction is conferred by the state long-arm statute and (2) the exercise of
jurisdiction under the statute meets constitutional standards of due process.
Under Pennsylvania’s long-arm statute, the Pennsylvania courts may exercise
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jurisdiction over nonresident defendants ‘to the fullest extent allowed under
the Constitution of the United States’ and jurisdiction may be based ‘on the
most minimum contact with this Commonwealth allowed under the
Constitution of the United States.’”) (citations omitted). The trial court
concluded Appellant “has not provided any specific evidence that . . . Tryp[ ]
conducted business in Pennsylvania so as to ‘purposefully avail’ [itself] of
conducting business in this state.” Trial Ct. Op. at 4. Appellant does not
refute any of the court’s discussion. See McCabe, 166 A.3d at 1261.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/22/20
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