Sibley, J. v. Weisberg, M. ( 2021 )

J-S29032-21
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JOHN W. SIBLEY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MATTHEW B. WEISBERG, ESQ., :
GRAHAM F. BAIRD, ESQ., AND :
WEISBERG LAW P.C. :
:
Appellees : No. 2131 EDA 2020
Appeal from the Order Entered October 5, 2020
in the Court of Common Pleas of Montgomery County
Civil Division at No(s): No. 2014-25063
BEFORE: PANELLA, P.J., KUNSELMAN, J. and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED OCTOBER 25, 2021
Appellant, John W. Sibley, appeals pro se from the trial court’s order
entered on October 5, 2020, which granted summary judgment in favor of
Weisberg Law, P.C. (“the Firm”), Matthew B. Weisberg, Esquire, and Graham
Falville Baird, Esquire (collectively, “the Attorneys”). We dismiss this appeal
based upon Sibley’s failure to comply with the Rules of Appellate Procedure.
This appeal stems from Sibley’s legal malpractice lawsuit against the
Firm, Weisberg, who is a named partner at the Firm, and Baird, who was
employed by the Firm at one point as an associate attorney. The Firm
represented Sibley in connection with two lawsuits he instituted in Lehigh
County and Bucks County. Both suits involved legal malpractice claims
against Glenn McGogney, legal counsel who represented Sibley in various
* Former Justice specially assigned to the Superior Court.
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matters in the early 2000s, and various claims against former business
partners.
Sibley commenced the instant legal malpractice lawsuit against the
Firm and the Attorneys in Montgomery County by writ of summons filed
September 4, 2014. Sibley filed a complaint two months later, and after a
series of pleadings by both parties and a period of inactivity, Sibley filed an
amended complaint on May 21, 2018, which the Firm and the Attorneys
answered. On May 17, 2019, Sibley filed a motion for summary judgment.
The Firm and the Attorneys filed their own motion for summary judgment on
April 11, 2020. Baird also filed a separate motion for summary judgment on
April 22, 2020.
In an order entered July 20, 2020, the trial court granted the defense
motions for summary judgment. It also entered a second order on the same
date, which denied Sibley’s motion for summary judgment. Sibley moved
for reconsideration of all of the rulings, but pursuant to a September 23,
2020, order, the trial court agreed to reconsider only its rulings as to the
defense motions. On October 5, 2020, the trial court entered an order that
once again granted the motion for summary judgment filed by Baird and the
motion for summary judgment filed by the Firm and the Attorneys.
Sibley timely filed a notice of appeal pro se from the October 5, 2020,
order, and the trial court ordered him to file a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b). Sibley filed a Rule
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1925(b) statement with twenty-one issues for review spanning twenty-two
pages. The trial court filed a trial court opinion pursuant to Pa.R.A.P.
1925(a). It noted the length of Sibley’s Rule 1925(b) statement and
responded with a Rule 1925(a) opinion summarizing the bases for its
rulings.
On appeal, Sibley’s brief confusingly contains two statements of
questions presented. The first set is as follows.
1. Did the Trial Court Err and Abuse its Discretion and commit
reversible error by erroneously stating incorrectly the facts
established on the record in determining whether this instant
Malpractice and Breach of Contract Complaint is founded in
Tort due to Negligence which is two (2) years or Contract due
to breach of the terms of the Contract (Retainer Agreement)
which is four (4) years and the method used occurrence rule
or the equitable discovery rule or “to avoid waiver of either
claim, a plaintiff must assert them together in one action, as
the claims arose from the same transaction or occurrence
against the same person” for calculating the Statute of
Limitations?
2. Did the Trial Court Err and Abuse its Discretion and commit
reversible error by Denying Plaintiff Sibley’s Motion for
Summary Judgment and specifically the claim for Breach of
Contract (Retainer Agreement) based on the facts and Court
Record?
3. Did the Trial Court Err and Abuse its Discretion and commit
reversible error by denying Plaintiff Sibley’s claims against the
Defendant Weisberg for the following Breaches of Duty of
Care?
a. Failure to show Philadelphia Legal Malpractice and
Breach of Contract complaint filed in Philadelphia
Court to Plaintiff Sibley prior to filing?
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b. Failure to verify Philadelphia Legal Malpractice and
Breach of Contract complaint filed in Philadelphia
Court with Plaintiff Sibley prior to filing?
c. Failure to attach the underlying contract to the
Philadelphia Legal Malpractice and Breach of Contract
complaint filed in Philadelphia Court for Plaintiff
Sibley and incorrectly referring to contract as
retainer agreement prior to filing?
d. Failure to Amend Philadelphia Legal Malpractice and
Breach of Contract complaint filed in Philadelphia
Court to Plaintiff Sibley prior to filing?
e. Failure to name the correct parties as defendants in
the Philadelphia Legal Malpractice and Breach of
Contract complaint, specifically BARR & MCGOGNEY
LAW FIRM and Barrnett Food Group, LLC?
f. Failure to Amend Philadelphia Legal Malpractice and
Breach of Contract complaint to include the financial
damages suffered by the loss of Plaintiff’s home to
foreclosure after filing in Philadelphia Court after
Plaintiff Sibley discovered the missing claim by
Defendants after filing on 7/26/2010?
4. Did the Trial Court Err and Abuse its Discretion by ignoring
admitted facts that Appellees’ Weisberg and Baird Failed to
Plead Accord and Satisfaction as an affirmative defense to
Defendants’ McGogney’s and Dippolito’s New Matter and
Counter Claims, filed on April 27, 2012, in which Defendants
claimed unpaid balances on Sibley’s two Promissory Mortgage
Notes by presenting the Mortgage Satisfaction Pieces signed,
executed and recorded in the Bucks County Recorder of
Deeds on March 9, 2009, in connection with the Joint Venture
investment financing of Barnett Food Group LLC? Did the
Trial Court Err and Abuse its Discretion by ignoring admitted
facts that Appellees’ Weisberg and Baird Failed to include
Plaintiff’s home was not in the original complaint, upon being
notified by Plaintiff, Defendants Failed to Amend the
Philadelphia Complaint once Plaintiff Sibley was provided with
a copy of the filed complaint on July 26, 2010, to include the
damages for the loss of Appellant Sibley’s $545,000 home to
foreclosure, on January 8, 2009, Plaintiff Sibley’s largest and
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most valuable asset, due to the negligent representation and
abandonment of Appellant by Defendant Glenn McGogney,
Esquire, in the Bucks County foreclosure Action?
Sibley’s Brief at 39-40 (verbatim except suggested answers omitted).
Sibley’s second set of issues is as follows.
5. Did the Trial Court err or abuse of discretion when the Trial
Judge failed to require Defendant Barr, to plead with
specificity and otherwise prove that Plaintiff’s complaint failed
to assert a breach of contract claim and failing to find that
Defendant’s New Matter and Affirmative Defenses did not
contain material facts to support that finding?
6. Did the Trial Court err or abuse its discretion when the Trial
Court failed to find that a contract existed between the
Plaintiff and the Defendants?
7. Did the Trial Court err or abuse of its discretion by a ruling
that Barr & McGogney were not a Partnership and ruling that
the Partnership issue was “MOOT" as set forth on pages 8 and
9 of Trial Court Order?
8. Did the Trial Court err or abuse of its discretion and commit a
reversible err by holding the Pro Se Plaintiff Sibley, to the
same standard as a licensed attorney with respect to the
pleadings set forth in Plaintiff’s complaint?
Id. at 41-47 (verbatim except issues have been renumbered and
subheadings, proposed answers, comments, and duplicative issues have
been omitted).
Upon review of Sibley’s brief, we note with displeasure Sibley’s
repeated failure to comply with our Rules of Appellate Procedure. First, as
stated, Sibley impermissibly sets forth two statements of questions involved,
which makes it unclear whether he intends for this Court to review one or
both sets of questions. See Sibley’s Brief at 39-47.
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Together, the two sets of questions span nine pages of his brief and
are far from concise. Many of the questions inappropriately include Sibley’s
own argumentative commentary instead of succinctly outlining the issues at
hand. See id. Sibley’s chosen approach violates Pennsylvania Rule of
Appellate Procedure 2116(a). See Pa.R.A.P. 2116(a) (“The statement of the
questions involved must state concisely the issues to be resolved, expressed
in the terms and circumstances of the case but without unnecessary
detail.”). Further, despite presenting eight questions with subparts in his
statements of questions presented, Sibley’s argument section is divided into
only two sections. See Pa.R.A.P. 2119(a) (requiring the argument to be
“divided into as many parts as there are questions to be argued”).
The more significant issue in this particular case is that Sibley fails to
include any citations to the record, in violation of Rules 2117 and 2119. See
Pa.R.A.P. 2117(a)(4) (requiring a narrative statement of “all the facts which
are necessary to be known in order to determine the points in controversy,
with an appropriate reference in each instance to the place in the record
where the evidence substantiating the fact relied on may be found”);
Pa.R.A.P. 2119(c) (requiring the argument in a brief to be accompanied by a
reference to the place in the record where the matter referred appears).
Sibley sets forth a multitude of factual assertions throughout his
statement of the case and argument, including cutting and pasting images or
texts of emails and other documents, leaving this Court mystified whether
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the referenced material appears in the certified record or are matters dehors
the record that we may not consider. See Commonwealth v. Rush, 959
A.2d 945, 949 (Pa.Super. 2008) (“This Court does not rely on items dehors
the record, such as assertions in an appellate brief or a trial court opinion
reviewing a case on appeal.”). It is simply not the job of this Court to “scour
the record to find evidence to support an argument; instead, we will deem
[the] issue to be waived.” Milby v. Pote, 189 A.3d 1065, 1079 (Pa.Super.
2018).
Lastly, Sibley’s argument section largely consists of block quotations
from the trial court opinion in the instant case and three cases from this
Court. See Sibley’s Brief at 93-101. He makes no attempt to connect the
law he cites from these three Superior Court decisions to the facts of his own
case, and he merely restates in a conclusory fashion that he is entitled to
relief, rendering his argument underdeveloped. See Pa.R.A.P. 2119(a)
(stating that the argument shall include “such discussion and citation of
authorities as are deemed pertinent”); see also Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa.Super. 2007) (stating that “it is appellant’s duty to
present arguments that are developed for our review” and “[t]his Court will
not act as counsel and will not develop arguments on behalf of an
appellant.”).
Although this Court construes materials filed by a pro se litigant
liberally, we cannot act as Sibley’s counsel. Branch Banking and Trust v.
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Gesiorski, 904 A.2d 939, 942-43 (Pa.Super. 2006). Any layperson who
chooses to represent himself assumes the risk that his lack of legal training
will be his undoing. Id. As a whole, Sibley’s disregard for the Rules of
Appellate Procedure has left this Court without the ability to conduct
effective review. See id. (declining to consider merits due to brief that was
“wholly inadequate to present specific issues for review”). Accordingly, we
dismiss this appeal without consideration of the merits of Sibley’s issues.
See 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.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2021
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