Howard, D., Jr. v. Blair, N. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DOUGLASS EARL HOWARD, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
NORA F. BLAIR : No. 1455 MDA 2020
Appeal from the Judgment Entered December 31, 2020
In the Court of Common Pleas of Dauphin County Civil Division at No(s):
2015-CV-08020-CV
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: OCTOBER 13, 2021
Douglass Earl Howard, Jr. appeals pro se from the judgment entered
against him and in favor of Appellee Nora F. Blair. We dismiss this appeal.
Mr. Howard filed an action against Ms. Blair, an attorney, which
proceeded to a non-jury trial on September 28, 2020, on counts of breach of
contract and legal malpractice. Specifically, Mr. Howard contended that he
provided $500 to retain Attorney Blair at the rate of $225 per hour to
undertake specific actions in connection with an intra-family dispute regarding
his mother’s estate, and that she “failed to perform her initially instructed duty
and was generally negligent in how she handled the issue.” Concise
Statement, 11/30/20, at 2. Mr. Howard attempted to prove his claims
primarily through his testimony and that of his paramour; he did not offer an
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expert witness to establish what standard of care Attorney Blair breached.
Attorney Blair testified in her defense.
At the appropriate times during trial, Attorney Blair moved for a
compulsory nonsuit and a directed verdict. The trial court took the matter
under advisement, and ultimately concluded that Attorney Blair was entitled
to a directed verdict. In a memorandum opinion, the court explained that Mr.
Howard’s own testimony established that:
the essential terms of the contract were for [Attorney Blair] to
contact [Mr. Howard’s sister] to see if there was a way to settle
the [e]state matter without having to resort to litigation. If it
appeared that litigation was inevitable, [Attorney Blair] was to
contact [Mr. Howard] first and discuss the potential cost of
litigation so that [Mr. Howard] could make a decision how to
proceed.
Memorandum Opinion 10/5/20, at 4. The trial court opined that Mr. Howard’s
claim for breach of contract failed because no reasonable minds could disagree
that the evidence demonstrated that Attorney Blair contacted counsel for Mr.
Howard’s sister, performed more than $500 worth of work, contacted Mr.
Howard to explain the additional work necessary and to ask for an additional
retainer of $1,500, and that Mr. Howard never paid any additional money to
Attorney Howard. Id.
As for Mr. Howard’s malpractice claim, the trial court concluded that it
was “unclear how [Attorney Howard] allegedly failed to exercise ordinary skill
and duties in performing her duties on behalf of [Mr. Howard].” Id. at 3.
Therefore, expert testimony was required to explain how Attorney Blair failed
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to exercise ordinary skill in the work that she performed, and Mr. Howard’s
failure to offer an expert was fatal to his claim. Id.
Mr. Howard filed a post-trial motion for reconsideration, purporting to
offer therein “the core reasons, though not the sole basis, for an appeal if
needed.” Motion for Reconsideration, 10/8/20, at 2. The reasons Mr. Howard
offered were that he did “not agree with the court regarding the need for an
expert witness,” and that the trial evidence did not support the trial court’s
determination that Attorney Blair performed her contractual duties. Id. at 1-
2. The trial court promptly denied Mr. Howard’s motion.
Mr. Howard filed a notice of appeal. This Court directed him to file a
praecipe in the lower court to have judgment entered upon the trial court’s
verdict. Mr. Howard complied, resulting in the entry of judgment on December
31, 2020. Both Mr. Howard and the trial court complied with Pa.R.A.P. 1925.
In his concise statement, Mr. Howard did not reiterate any issue contained in
his post-trial motion, but rather raised challenges to pre-trial rulings,
suggested that the trial court was biased and made incorrect credibility
determinations, and generically cited “[i]ssues raised at and during the
trial[.]” Concise Statement, 11/30/20, at 2.
In this Court, Attorney Blair filed an application to quash this appeal on
the bases that Mr. Howard had waived the issues argued in his appellate brief
and that his brief failed to conform with a host of the Rules of Appellate
Procedure. Mr. Howard filed a response in which he inappropriately invoked
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judicial notice, cited his status as a pro se litigant as cause for leniency, and
denied that he had failed to preserve his issues or to substantially comply with
the rules. This Court denied Attorney Blair’s motion without prejudice for her
to re-raise the issues in her brief, which she has done.
The case was listed for oral argument before this panel to take place on
October 13, 2021. Mr. Howard filed a motion to attend argument remotely
based upon risk of severe COVID-19 illness, and counsel for Attorney Blair
sought a continuance based upon prepaid travel arrangements. Addressing
both concerns, this Court scheduled the instant case for remote oral argument
to take place on October 26, 2021. However, upon examination of the parties’
briefs, we conclude that oral argument is unnecessary.
It is well-settled 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. A pro se litigant must comply with the
procedural rules set forth in the Pennsylvania Rules of the Court.
Any layperson choosing to represent himself or herself in a legal
proceeding must, to some reasonable extent, assume the risk that
his or her lack of expertise and legal training will prove his or her
undoing.
Smithson v. Columbia Gas of PA/ NiSource, ___ A.3d ___, 2021 WL
3483301 at *4 (Pa.Super. Aug. 9, 2021) (cleaned up).
Mr. Howard’s brief opens with a demand that this Court take judicial
notice of federal cases concerning pleading requirements. See Appellant’s
brief at 1-2. Except for subsequent cites to the Rules of Professional Conduct,
the brief is otherwise devoid of citations to authorities as is required by
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Pa.R.A.P. 2119(b). For example, Mr. Howard’s statement of jurisdiction
presents no statutory basis for our exercise of jurisdiction, but rather indicates
that “[t]he Superior Court Middle District holds jurisdiction over the trial court
and is therefore the proper venue for this appeal from the Court of Common
Pleas, Dauphin County. Appellant demands proof otherwise.” Appellant’s
brief at 2. Mr. Howard offers a statement of the scope and standard of review
that discusses not whether he presents questions of law which we review de
novo or those implicating the trial court’s discretion, but rather his personal
beliefs about what our review should include. See Appellant’s brief at 3-4
(providing, inter alia, that our standard of review “should include questioning
at oral arguments to clarify the briefs in contrasts with the pleadings before
the lower court”).
The statement of the case Mr. Howard offers does not conform with the
requirements of Pa.R.A.P. 2117, most notably lacking any references to where
the proffered facts are substantiated in the record or indications where he
raised and preserved the issues he argues in this Court.1 Compare
Appellant’s brief at 11-14, with Pa.R.A.P. 2117(a)(4), (c). Mr. Howard’s brief
supplies a statement of fourteen questions presented, but the argument
section is not divided into separate corresponding sections as is mandated by
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1 Indeed, as Attorney Blair observed, it appears unlikely that Mr. Howard
preserved any issues for appellate review, as there appears to be no issue
that was raised in his post-trial motion, in his Pa.R.A.P. 1925(b) statement,
and in his statement of questions presented. See Appellee’s brief at 27-28.
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Pa.R.A.P. 2119(a). Instead, Mr. Howard offers a one-paragraph account of
his grievances with Attorney Blair and the trial court with no indication of how
the law provides a remedy for his complaints. See Appellant’s brief at 15-17.
This Court cautioned Mr. Howard in his prior appeal that his status as a
pro se litigant did not absolve him of the duty to comply with the Rules of
Appellate Procedure and that a failure to cite pertinent legal authority could
result in waiver of all his claims.2 See Howard v. Blair, 185 A.3d 1122(Pa.Super. 2018) (unpublished memorandum at 5 n.1.). In that appeal, we
nonetheless elected to determine the legal issue of whether Mr. Howard’s
complaint stated a cognizable cause of action, particularly in the face of no
objection to the briefing defects from Attorney Blair. Id. However, in the
instant appeal, Attorney Blair has objected, and most importantly the briefing
defects are so substantial that this Court would effectively have to act as Mr.
Howard’s counsel to provide meaningful review. See Smithson, supra at *4
(dismissing appeal where disregard for appellate rules left this Court unable
to conduct effective review, citing the prohibition against acting as counsel for
a pro se appellant). Accordingly, we dismiss this appeal without considering
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2 In his reply brief, Mr. Howard asks us to take judicial notice “that case law
is an option and not a necessity for a pleading unless the court itself specifies
supporting case law is needed and demands such directly.” Appellant’s Reply
Brief at 8. Mr. Howard’s contention evinces a lack of understanding of judicial
notice, the difference between pleadings and appellate briefs, or the
inapplicability of federal procedural rules and decisions on the Pennsylvania
courts.
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its merits. See id.; Pa.R.A.P. 2101 (“[I]f the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal or other
matter may be . . . dismissed.”).
Appeal dismissed. Remote oral argument scheduled for October 26,
2021, is cancelled.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/13/2021
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