Ochoa, M. v. Levine, A.

J-S34033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
MICHAEL RAMON OCHOA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
DR. ARTHUR LEVINE; UNIVERSITY : No. 240 WDA 2022
OF PITTSBURGH BOARD OF :
TRUSTEES; UPMC BOARD OF :
DIRECTORS; DAVID S. POLLOCK, :
BRIAN C. VERTZ; BENJAMIN E. :
ORSATTI; POLLOCK BEGG KOMAR :
GLASSER VERTZ LLC; DR. GEORGE :
K. MICHALOPULOS; DR. ANTHONY :
JAKE DEMETRIS; PRESTON G. :
ATHEY; ZACHARY LEHMAN; THE HILL :
SCHOOL; DR. ANNE THOMPSON; DR. :
PARMJEET S. RANDHAWA; DR. :
MICHAEL A. NALESNIK; DR. MARTA :
I. MINERVINI; DR. TONG WU; :
THOMAS E. STARZL :
TRANSPLANTATION INSTITUTE; DR. :
MUKESH SAH; DR. PIERRE AZZAM; :
DR. ROLF G. JACOB; DR. DUANE G. :
SPIKER; DR. SAMUEL :
WESMORELAND; WESTERN :
PSYCHIATRIC INSITITUTE AND
CLINIC; DR. ERIN RUBIN
Appeal from the Order Dated February 7, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-13-011757
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: September 30, 2022
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34033-22
Michael Ramon Ochoa (Ochoa) appeals, pro se, an order of the Court of
Common Pleas of Allegheny County (trial court) dismissing his claims against
the above-captioned Appellees.1 We affirm.
The procedural history of the present matter is lengthy and convoluted.
Essentially, Ochoa commenced this case in 2013, alleging, among other
things, that a group of physicians and medical institutions had mistreated him
and then withheld information about his hospitalizations. In 2018, Ochoa filed
a complaint which included a total of 43 counts and 25 defendants. All of
those counts were dismissed in 2019 except for Count 26, which concerned a
request for medical records, and these documents are the sole point of
contention in the present appeal.2
In 2021, the parties agreed that the request for relief in Count 26 would
be satisfied if the subject records were released to Ochoa upon his submission
of an authorization of their release. Ochoa submitted an authorization for the
release of the records to the Health Information Management Department of
____________________________________________
1Ochoa filed a separate appeal (docket number 241 WDA 2022) as to the trial
court’s simultaneous order denying Ochoa’s motion in limine, and the appeal
was quashed due to being interlocutory and duplicative of the present appeal.
2Judgment was entered as to the remaining 42 counts on April 15, 2019, after
Ochoa failed to file an amended complaint to cure the deficiencies in those
counts. The named defendants as to remaining claim in Count 26 are Dr.
Mukesh Sah; Dr. Arthur Levine; Dr. Anne Thompson; the Department of
Critical Care Medicine University of Pittsburgh; the University of Pittsburgh
Board of Trustees; and the UPMC Board of Directors.
-2-
J-S34033-22
the UPMC Western Psychiatric Institute and Clinic (WPIC) on August 21, 2021.
Lynn Conway (Conway), the records custodian of WPIC, submitted an affidavit
averring that all medical records in WPIC’s possession had been released to
Ochoa. Subsequent to his receipt of those records, however, Ochoa continued
to request additional materials pertaining to 57 days of inpatient treatment in
WPIC facilities and 9 days he spent at the Allegheny County Jail. These dates
ranged roughly from 2006 to 2009.
The Appellees filed a motion to dismiss Ochoa’s complaint on November
12, 2021, on the ground that Ochoa’s claim for outstanding medical records
had been mooted by his receipt of those records. Conway’s affidavit was
attached to the motion. Ochoa, in turn, filed a motion in limine on December
21, 2021, seeking to question Conway as to WPIC’s record keeping and
challenging the admissibility of Conway’s affidavit if such questioning were not
permitted. On February 7, 2022, the trial court entered an order denying
Ochoa’s motion in limine, as well as a separate order granting the Appellees’
motion to dismiss.
Ochoa timely appealed, and the trial court then directed Ochoa to submit
a Rule 1925(b) statement.3 In response, Ochoa filed a statement which
included 25 purported errors. However, Ochoa appeared to misapprehend the
purpose of the filing, as almost all the points raised were factual or
____________________________________________
3 Pa.R.A.P. 1925(b).
-3-
J-S34033-22
argumentative rather than specific instances of error on the part of the trial
court.
In its 1925(a) opinion, the trial court reasoned that Ochoa had waived
all claims on appeal because his 1925(b) statement was so incoherent that it
was “the functional equivalent of no [s]tatement at all.” Trial Court 1925(a)
Opinion, at 5. Moreover, the trial court noted that even if Ochoa had
submitted an adequate 1925(b) statement, no relief would be due because
Ochoa seeks to obtain medical records which he has already received or which
simply do not exist. The trial court further explained that it acted within its
discretion in crediting evidence that Ochoa had already received all of the
documentation of his medical treatment which he sought from the Appellees.
Ochoa’s brief does little to clarify the specific points of fact and law which
he believes entitle him to appellate relief. The brief’s statement of the
questions involved reads as follows:
1. Do[es] evidence in the original record, data analysis, and
factual admissions of opposing counsel prove beyond any
reasonable doubt that the UPMC defendants remain in violation of
28 Pa. Code 115.29? = YES
2. Did [the trial court] abuse [its] discretion by disregarding that
evidence in the original record, data analysis, factual admissions
by opposing counsel, the Rules of Evidence, controlling case law,
and the precedents of the trial court to justify false conclusions of
fact and law with unexamined, unsupported and contradictory
testimony? = YES
3. Does Judge Ward’s order end this case? = NO
Appellant’s Brief, at 2-3.
-4-
J-S34033-22
After reviewing the record and the applicable law, we agree with the
entirety of the trial court’s analysis. First, Ochoa has indeed waived his
appellate claims by failing to file an adequate 1925(b) statement. The
Pennsylvania Rules of Appellate Procedure mandate that the statement must
“concisely identify each error that the appellant intends to assert with
sufficient detail to identify the issue to be for the judge.” Pa.R.A.P.
1925(b)(4)(ii). “The Statement should not be redundant or provide lengthy
explanations as to any error.” Pa.R.A.P. 1925(b)(4)(iv). “Issues not included
in the Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.” Ochoa’s 1925(b) statement does not conform
to any of these requirements and the resulting waiver of his appellate claims
now precludes appellate relief.4
Second, Ochoa has failed to submit an appellate brief to this Court which
conforms to the procedural rules. The arguments in a brief must be developed
enough for the reviewing court to discern the essence of the issues and allow
the opposing party to offer a reasonable response. See Pa.R.A.P. 2109(a);
see also Norman for Estate of Shearlds v. Temple Univ. Health Sys.,
208 A.3d 1115, 1119 (Pa. Super. 2019) (holding that claims were waived
____________________________________________
4 Due to Ochoa’s frivolous and burdensome litigation in his divorce
proceedings, a panel of this Court, on May 24, 2014, in appellate docket
number 1766 WDA 2013, entered an order barring further appeals.
-5-
J-S34033-22
because the arguments in the brief were “undeveloped and lack[ed] citation
to pertinent legal authority.”).5
The brief submitted by Ochoa is incoherent, preventing this Court from
undertaking meaningful appellate review. While Ochoa states that the
Appellees have violated a provision entitling him to medical records (28 Pa.
Code § 115.29), he does not cogently identify which records are outstanding
or why a provision of law entitles him to such materials.
To the extent that Ochoa has asserted coherent legal arguments as to
the dismissal of his claim (Count 26 of the complaint) and the denial of his
motion in limine, it would be of no avail. Both issues would turn on whether
the trial court had discretion6 to credit the affidavit of Conway as the factual
____________________________________________
5 “Briefs and reproduced records shall conform in all material respects of these
rules as nearly as the circumstances of the particular case will admit,
otherwise they may be suppressed, and, if the defects are in the brief or
reproduced records of the appellant and are substantial, the appeal or other
matter may be quashed or dismissed.” Pa.R.A.P. 2101. These rules are
applicable to attorneys as well as pro se litigants. See Bolick v.
Commonwealth, 69 A.3d 1267 (Pa. Super. 2013) (barring pro se appellant
from filing future appeals due to years of filing frivolous appellate claims).
6 An order granting a motion to dismiss is reviewed for an abuse of discretion.
See Sigall v. Serrano, 17 A.3d 946, 949 (Pa. Super. 2011). An abuse of
discretion is not merely an error of judgment, but rather, it exists when the
trial court has rendered a judgment that is “manifestly unreasonable,
arbitrary, or capricious, has failed to apply the law, or was motivated by
partiality, prejudice, bias, or ill will.” Wall Rose Mut. Ins. Co. v. Manross,
939 A.2d. 958, 962 (Pa. Super. 2007) (holding that the court did not abuse
its discretion where the record adequately supports the trial court’s reasons
and factual basis).
-6-
J-S34033-22
basis for determining that Ochoa’s record request was moot. We find the trial
court’s reasoning persuasive in this regard:
[A] record of an act constitutes competent evidence if:
(1) the custodian testified to its identity and the mode of its
preparation;
(2) it was made in the regular course of business at or near
the time of the act; and
(3) if the sources of information, method and time of
preparation justify its admission according to the tribunal’s
opinion.
[42 Pa.C.S. § 6108.]
In addition, a custodian of original medical charts or records may
only be required to testify on an issue in dispute “if the subpoena
duces tecum so specifies[.]” 42 Pa.C.S. § 6158. Even if a health
care facility fails to produce all records specified in a subpoena,
“the custodian of the charts or records shall so state in a notarized
affidavit[.]” 42 Pa.C.S. § 6154.
Here, . . . Ms. Conway was not required to testify in person
[because WPIC and Conway were never subpoenaed]. See In Re
Ulrich, 109 A. at 924; 42 Pa.C.S. § 6158. Rather, Lynn Conway’s
affidavit constitutes competent evidence that provided support to
[the] Motion to Dismiss, amidst other documents including those
submitted by [Ochoa] himself. In Lynn Conway’s affidavit, Ms.
Conway attested to the record’s identity and mode of preparation,
the requirements for a valid authorization and the steps taken to
process a valid authorization, and that [Ochoa’s] request was
processed pursuant to the same.
Trial Court 1925(a) Opinion, at 8-9 (footnotes omitted).7
____________________________________________
7 The trial court added that WPIC was only statutorily required to retain
Ochoa’s records for 7 years (28 Pa.C.S. § 563.6), and that more than that
period of time had elapsed between 2009 (the final year in which Ochoa
(Footnote Continued Next Page)
-7-
J-S34033-22
Ochoa has submitted no legal authority for the proposition that
Conway’s affidavit could not be considered as competent evidence in this case.
Nor has he submitted legal authority for the proposition that he was entitled
to question Conway before her affidavit could be considered as competent
evidence in support of the motion to dismiss. Thus, Ochoa has waived all
potential issues on appeal due to the deficiencies in his 1925(b) statement
and his brief, and even if he had adequately raised issues as to whether there
was competent evidence to support the dismissal, such claims would have no
legal merit.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/30/2022
____________________________________________
received treatment) and 2021 (the year in which Ochoa submitted the
necessary authorization for the release of those materials).
-8-