Alderette, S. v. Dollar Tree

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
SILK ALDERETTE AND KIXX : IN THE SUPERIOR COURT OF
ALDERETTE : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 1529 WDA 2017
DOLLAR TREE, INC. AND DOLLAR :
TREE STORES, INC. :
Appeal from the Order September 19, 2017
In the Court of Common Pleas of Lawrence County Civil Division at
No(s): 10352 of 2016 CA
BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED MAY 15, 2018
Silk and Kixx Alderette (Appellants) appeal pro se from the trial court’s
order granting summary judgment in favor of Appellees, Dollar Tree, Inc., and
Dollar Tree Stores, Inc. (Dollar Tree).
In the spring of 2016, Appellants, represented by Angelo Papa, Esquire,
filed a complaint and amended complaint against Dollar Tree in which they
raised claims of negligence, premises liability, and negligent infliction of
emotional distress. The claims arose from an incident that occurred on June
9, 2014, when Appellants entered a Dollar Store and Appellant Silk Alderette
injured the middle finger of her left hand on the locking mechanism of the
door. The trial court recounted the factual and procedural history of this case
as follows:
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On June 9, 2014, the Plaintiffs, Silk Alderette and Kixx
Alderette, and their son, Skylar Alderette, entered the Dollar Tree
store located at 2567 West State Street, New Castle, Lawrence
County, Pennsylvania. The Dollar Tree store is equipped with a set
of exterior and interior metal double-doors to enter the store. The
left side of the exterior doors was locked while ingress and egress
to the store was provided through the right door. Kixx Alderette
held the exterior door open while Skylar Alderette entered the
store first followed by the Plaintiff, Silk Alderette. The left side of
the interior double-doors was blocked by shopping carts of bargain
items while the right interior door was being propped open. Skylar
Alderette entered the interior doors first and moved to the side
upon noticing another individual approaching the doorway in an
attempt to exit the store. The other individual stood to the side to
allow Plaintiff and her son to walk through the door before exiting.
Plaintiff walked through the interior door after her son. While
walking through the doorway, Plaintiff struck her left hand on the
locked left interior door and her middle finger became lodged
within a rectangular hole used for the locking system. Unaware
that her finger was lodged in the door, Plaintiff continued to walk
into the store, but was jerked backwards.
Plaintiff and her husband dislodged Plaintiff’s finger, but she
suffered two large lacerations as a result. She was subsequently
taken to Jameson Memorial Hospital where she was diagnosed
with two deep lacerations and a severe sprain. Plaintiff also avers
she injured her shoulder during the incident, was examined by an
orthopedic surgeon, Dr. Robert McGann, and she was diagnosed
with bicipital tendonitis.
Plaintiff initiated this action by filing a Praecipe for Writ of
Summons on April 8, 2016, and filed a complaint on May 11, 2016,
asserting claims for negligence, premises liability and negligent
infliction of emotional distress. [Dollar Tree] responded by filing
Preliminary Objections and [Appellants] filed a First Amended
Complaint on June 1, 2016. [Dollar Tree] issued Preliminary
objections to [A First Amended complaint and, after oral
argument, the Court sustained [Dollar Tree’s] preliminary
objection concerning the legal insufficiency of [Appellants’] claim
for negligent infliction of emotional distress and that count was
stricken from the Amended Complaint. Appellants were granted
leave to file a Second Amended Complaint alleging negligent
infliction of emotional distress within 20 days, but Appellants failed
to do so.
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On June 28, 2017, [Dollar Tree] filed a Motion for Summary
Judgment asserting they [we]re entitled to judgment as a matter
of law as [Appellants] failed to present evidence to demonstrate
[Dollar Tree] breached a duty of care concerning the doors and
locking mechanisms at issue.
Trial Court Opinion, 9/19/17, at 1-3.
The trial court heard oral argument on Dollar Tree’s motion for summary
judgment on August 28, 2017. Attorney Papa sent Mark Neff, Esquire on his
behalf to argue against summary judgment. On August 29, 2017, Silk
Alderette wrote the trial court a letter expressing her dissatisfaction with Mr.
Neff. On August 30, 2017, the trial court entered the following order:
AND NOW, this 30th day of August, 2017, in consideration
of the attached correspondence of the Plaintiff, Silk Alderette, pro
se, and to ensure that every consideration is given to the
argument of the parties, the Plaintiffs are given ten (10) days to
present to the Court through counsel any additional argument, in
writing, related to the law or testimony or declarations located in
Plaintiffs’ evidentiary materials that are of record. The Defendant
shall have ten (10) days from the date or receipt of any written
memorandums submitted on behalf of the Plaintiffs to submit a
written reply thereto. Any material submitted to the Court shall
be submitted by counsel for the parties and not by any party pro
se.
Order, 8/30/17.
On September 7, 2017, Attorney Papa filed a “Second Brief in Opposition
to Defendant’s Motion for Summary Judgment.” Dollar Tree, on September
15, 2017, filed a “Reply to Plaintiffs’ Second Brief in Opposition to Summary
Judgment.” On September 19, 2017, the trial court entered an order and
opinion granting summary judgment in favor of Dollar Tree.
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On September 27, 2017, Silk Alderette wrote two letters to the trial
court indicating her desire to file for reconsideration and appeal; Ms. Alderette
also referenced her emergency treatment and surgery for a kidney stone, as
well as “saving my case for other legal counsel.” The next day, on September
28, 2017, the trial court ordered:
AND NOW, this 28th day of September, 2017, the Court
being in receipt of the attached pro se correspondence of the
Plaintiff, it is ORDERED and DECREED that the same shall be filed
of record.
Order, 9/28/17.
On October 30, 2017, after apparently receiving the second letter from
Ms. Alderette dated September 27, 2017, the trial court ordered:
AND NOW, this 30th day of September, 2017, the Court
being in receipt of the attached pro se correspondence of the
Plaintiff, it is ORDERED and DECREED that the same shall be filed
of record.
Order, 9/30/17.
During the same timeframe, Attorney Papa filed a petition to withdraw
as counsel.1 The trial court granted the petition by order dated September
29, 2017 and filed on October 2, 2017. On October 13, 2017, Appellants,
acting pro se, filed a motion for reconsideration, in which they conceded the
untimeliness of the petition, and explained that it was due to “complications
of the plaintiffs which plaintiffs did give notice to this court.” Motion for
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1Attorney Papa’s petition to withdraw contains a certificate of service dated
September 28, 2017; the docket indicates that it was filed on October 2, 2017.
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Reconsideration, 10/13/17, at 2. On October 18, 2017, the trial court entered
an order denying Appellants’ motion for reconsideration. A day prior, on
October 17, 2017, Appellants filed their timely appeal. The trial court directed
compliance with Pa.R.A.P. 1925, and on November 22, 2017, entered an order
in which it stated that “the Opinion and Order from which the appeal is taken
satisfies the requirements of Pa.R.A.P. 1925(a) and the record is otherwise
complete for purposes of appeal.”
Appellants present four issues for our review:
1. The Trial Court erred and/or abused its discretion when it did
not “take in consideration” and/or “act upon” [Appellants’]
complaint of “incompetence”, “abandonment” and
“contemptuous misconduct” by their attorney of record, when
brought to the court’s attention?
2. The Trial Court erred and abused its discretion due to the
court’s bias against [Appellants] new “pro se” status causing
[Appellants] “constitutional” and “substantive” rights to be
violated?
3. The Trial Court erred and or abused its discretion by applying
the wrong case law, omitting other relevant case law and did
not rule on the “weight of the evidence” provided by
[Appellants]?
4. The Trial Court erred and/or abused its discretion when it did
not take into consideration Plaintiff Silk’s medical obesity as a
handicap since the U.S. EEOC now claims obesity is a disability
under the Americans with Disabilities Act Amendments Act
(ADAAA).
Appellants’ Brief at 6 (italics in original).
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Before we address Appellants’ issues, we address Dollar Tree’s motion
to quash this appeal, in which they argue that this Court should dismiss the
appeal because Appellants have failed to comply with Pennsylvania Rules of
Appellate Procedure 2186 (service and filing of reproduced record) and 2188
(consequence of failure to file reproduced records). See Dollar Tree Brief at
5. Dollar Tree states that Appellants “have failed to file a reproduced record”
and “cite to no specific portions of any record.” Id. They explain:
[Appellants] have attached to their brief, a mish mash of
various documents, some of which were filed of record with the
trial court, while others were not matters of record but apparently,
[Appellants] are attempting to make them matters of record here.
Without a formal reproduced record, [Dollar Tree is]
prejudiced so severely, that they find it nearly impossible to
author a coherent brief. Many of the filings made by [Appellants]
at the trial court were made merely to file something and the
filings have no relevance or context.
Id. at 5-6.
This Court has stated that the failure to file a reproduced record is an
“abject” failure to comply with the Pennsylvania Rules of Appellate Procedure
and warrants dismissal of an appeal. McGee v. Muldowney, 750 A.2d 912,
913 n.1 (Pa. Super. 2000); see In re Crespo, 738 A.2d 1010, 1013 n.2 (Pa.
Super. 1999) (“Compliance with the Pennsylvania Rules of Appellate
Procedure [ ] regarding the contents of reproduced records on appeal is
mandatory.”). Moreover, we cannot accord special relief to Appellants merely
because of their pro se status. As stated in Commonwealth v. Rivera, 685
A.2d 1011 (Pa. Super. 1996):
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While this court is willing to liberally construe materials filed by a
pro se litigant, we note that appellant is not entitled to any
particular advantage because she lacks legal training. As our
supreme court has explained, any layperson choosing to represent
[herself] in a legal proceeding must, to some reasonable extent,
assume the risk that [her] lack of expertise and legal training will
prove [her] undoing.
Id. at 1013, quoting O'Neill v. Checker Motors Corp., 567 A.2d 680, 682
(Pa. Super. 1989).
Instantly, although we could quash or dismiss this appeal pursuant to
Pennsylvania Rule of Appellate Procedure 2101, we exercise our discretion and
decline to so.
In their first and second issues, Appellants assert trial court error on the
basis that the trial court did not “take in consideration” and/or “act upon”
Appellants’ complaint of “incompetence”, “abandonment” and “contemptuous
misconduct” by their attorney of record; and exhibited bias against Appellants’
“new pro se” status. These issues are meritless.
The argument portion of Appellant’s brief presents an all-encompassing
but scattershot approach to issues relating to counsel’s representation and
Appellants’ subsequent and very brief period of acting pro se before the trial
court. The sum effect is nonsensical. See Smathers v. Smathers, 670 A.2d
1159 (Pa. Super. 1996) (a pro se appellant’s brief precluded meaningful
review where the brief contained no organized and developed arguments, and
even a liberal construction of the brief based on appellant’s pro se status did
not remedy the brief’s inadequacies). We further note that Appellants were
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represented by counsel throughout almost all of the underlying litigation,
including the entry of the summary judgment order from which they appeal.
As accurately noted by Dollar Tree, this appeal “is solely and strictly based on
the granting of [Dollar Tree’s] motion for summary judgment.” Dollar Tree
Brief at 7. If Appellants “are of the belief that they did not receive proper
representation by their former attorney, then those issues can be addressed
in another manner, forum or proceeding.”2 Id. at 7-8 (noting the deposition
testimony of Silk Alderette that she has a law degree from British American
University). For these reasons, we find no merit to Appellants’ first two issues.
Next, in their third and fourth issues, Appellants address the summary
judgment order from which they appeal. They argue that the trial court erred
by applying the wrong case law and failing to consider Silk Alderette’s various
health conditions, including obesity as a handicap under the Americans with
Disabilities Act Amendments Act. Appellant’s Brief at 43-51. Again, we
conclude that Appellants’ issues lack merit.
Motions for summary judgment necessarily and directly implicate
the plaintiff’s proof of the elements of his cause of action. Thus, a
record that supports summary judgment will either (1) show the
material facts are undisputed or (2) contain insufficient evidence
of facts to make out a prima facie cause of action or defense and,
therefore, there is no issue to be submitted to the fact-finder.
Upon appellate review, we are not bound by the trial court's
conclusions of law, but may reach our own conclusions. The
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2At oral argument, we advised Appellants that issues they have with counsel
are not properly before this Court on appeal and there are other avenues by
which Appellants may seek recourse.
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appellate court may disturb the trial court’s order only upon an
error of law or an abuse of discretion.
Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1084–85 (Pa. Super.
2016), appeal denied, 141 A.3d 481 (Pa. 2016) (citation omitted).
After a thorough review of the record and the well-reasoned opinion of
the Honorable Dominick Motto, we conclude that the trial court opinion
correctly discusses and properly disposes of Appellants’ third and fourth issues
relating to the entry of summary judgment on their claims of negligence,
premises liability, and negligent infliction of emotional distress. Accordingly,
we adopt the trial court’s analysis as our own on the issue of summary
judgment and affirm on the basis of the trial court’s opinion. See Trial Court
Opinion, 9/19/17, at 3-14 (finding that Appellants failed to present evidence
to demonstrate that Dollar Tree breached a duty of care).
Dollar Tree motion to quash denied. Order affirmed. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/15/2018
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