Fore, G. v. Shue, B.

• Court: Superior Court of Pennsylvania
• Decided: May 29, 2024
• Docket: 1711 MDA 2023
• Status: Unpublished

Opinion

J-A11033-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

GINA FORE : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : BRANSTIN SHUE : No. 1711 MDA 2023

Appeal from the Judgment Entered November 13, 2023 In the Court of Common Pleas of York County Civil Division at No(s): 2023-SU-000655

BEFORE: BOWES, J., STABILE, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.: FILED: MAY 29, 2024

Gina Fore (Appellant) appeals from the judgment on the pleadings

entered against her and in favor of Branstin Shue (Shue). We affirm.

On March 7, 2023, Appellant, acting pro se, filed a civil complaint against

Shue relating to her purchase of Shue’s truck. The six-paragraph complaint

did not clearly identify a cause of action, but alleged Shue “misrepresented

the condition of the truck.” Complaint, 3/7/23, ¶ 3. Appellant sought

damages for “hardships and extra funds spent because of the truck” and for

“all the suffering and worry [Appellant] was under….” Id. ¶¶ 5-6. The

complaint did not include a notice to defend, see Pa.R.C.P. 1018.1, and

Appellant failed to properly serve Shue with original process. See Trial Court

Opinion, 1/26/24, at 3 n.2 (citing Pa.R.C.P. 400 and 403). J-A11033-24

On May 13, 2023, Appellant sent Shue a ten-day notice of intent to enter

a default judgment. See Pa.R.C.P. 237.1. Less than ten days later, on May

18, 2023, Appellant filed a praecipe to enter a $27,000 default judgment

against Shue. On May 30, 2023, Shue filed a petition to open the judgment.

The trial court granted Shue’s petition to open, and he thereafter filed an

answer and new matter. Appellant filed a reply to Shue’s new matter, which

referenced attached exhibits but failed to admit or deny Shue’s averments.

On August 7, 2023, Appellant filed a “Motion to present the case in trial.”

The trial court denied the motion that same day, but directed Appellant’s

attention to the local rules of court and advised her to file the appropriate

document to list the case for arbitration. Order, 8/7/23; see also Trial Court

Opinion, 1/26/24, at 4 n.3 (observing that local rules require compulsory

arbitration where amount in controversy was less than $50,000).

On August 9, 2023, Shue filed a motion for judgment on the pleadings,

arguing Appellant’s complaint failed to state a claim upon which relief could

be granted. On September 15, 2023, Shue filed a praecipe to list the motion

for disposition without oral argument, noting Appellant had filed no response.

On October 27, 2023, Appellant filed a “Request for hearing” in which she

requested “a court date to plead my case,” but made no reference to the

pending motion for judgment on the pleadings.

On November 13, 2023, the trial court entered an order and opinion

granting Shue’s motion for judgment on the pleadings and dismissing

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Appellant’s complaint. The order also denied as moot Appellant’s October 27,

2023, request for a hearing.

Appellant timely appealed. The trial court ordered Appellant to file a

Pa.R.A.P. 1925(b) concise statement of matters complained of on appeal, and

Appellant thereafter filed a concise statement.1 The trial court filed an

additional opinion under Rule 1925(a).

Appellant presents ten issues for our review:

1. How can [Appellant] have a fair trial when [Shue’s] lawyer does not follow the process of having someone served with papers?

2. How can the court allow for the default judgment to be opened when [Shue] chose not to do anything?

3. Did the court deny [Appellant her] rights to be heard in the court of law?

4. How can the court say [Appellant has] not proven [her] case when [Appellant] was not given a court date to make [her] case?

5. Can any of the filings and orders stand when [Appellant] was not able to respond to them?

6. How could [Appellant] get all the documents needed for [her] case when the subpoena was not answered?

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1 Appellant’s January 23, 2024, concise statement was not filed within 21 days

of the trial court’s December 19, 2023, order, and was therefore facially untimely. However, the trial court’s order did not specify where Appellant could mail or serve her concise statement in person, as is required by Pa.R.A.P. 1925(b)(3)(iii). Accordingly, we decline to deem Appellant’s claims waived on appeal. Linn v. Perrotti, 308 A.3d 885, 888 (Pa. Super. 2024) (“It would be inequitable to deem issues waived on appeal due to the untimely filing of a 1925(b) statement where the trial court’s order to file the statement does not comport with the requirements of Rule 1925(b).”).

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7. Did [Shue’s] lawyer fail to head to [sic] the subpoena?

8. How can the courts make a judgment on proceedings when they did not look at all the documents filed and accepted by the courts?

9. Were all the requirements met for fraudulent misrepresentation?

10. Were all the requirements met to prove breach of contract?

Appellant’s Brief at 4-5 (unpaginated) (issues reordered for ease of

disposition).

Preliminarily, we observe that

although 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, 264 A.3d 755, 760 (Pa. Super.

2021) (citations, quotation marks, and brackets omitted). “Briefs … shall

conform in all material respects with the requirements of” the Pennsylvania

Rules of Appellate Procedure “as nearly as the circumstances of the particular

case will admit.” Pa.R.A.P. 2101. If the defects in an appellant’s brief “are

substantial, the appeal … may be quashed or dismissed.” Id.

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Here, the defects in Appellant’s brief are substantial. Appellant includes

few citations to legal authorities or the record below,2 and she fails to organize

her argument section to correspond with the questions presented.3 Some of

the questions presented are not addressed in Appellant’s argument, while

most of her argument is devoted to issues not raised in her Rule 1925(b)

statement.4 Nevertheless, we will attempt to address “the arguments that

can reasonably be discerned from this defective brief.” Commonwealth v.

Lyons, 833 A.2d 245, 252 (Pa. Super. 2003).

In her first issue, Appellant argues Shue failed to properly serve her with

filings throughout the case, and asserts this failure should result in the

reinstatement of her default judgment against Shue. Appellant’s Brief at 8,

16. Appellant argues Pa.R.C.P. 403 required Shue to serve Appellant by

certified mail with a signed return receipt. Id. at 16; see also Pa.R.C.P. 403

2 “Each distinct issue in the argument section of a brief must, at a minimum,

contain ‘citations of authorities as are deemed pertinent.’” Commonwealth v. Pi Delta Psi, Inc., 211 A.3d 875, 883 (Pa. Super. 2019) (quoting Pa.R.A.P. 2119(a)). When an appellant “cites no pertinent authority to substantiate [her] claim … appellant’s issue is waived.” Id. (citation and quotation marks omitted).

3 “The argument [section] shall be divided into as many parts as there are questions to be argued; and shall have as the head of each part—in distinctive type or in type distinctively displayed—the particular point treated therein….” Pa.R.A.P. 2119(a).

4 “It is well-established that any issue not raised in a Rule 1925(b) statement

will be deemed waived for appellate review.” Commonwealth v. Bonnett, 239 A.3d 1096, 1106 (Pa. Super. 2020).

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(“If a rule of civil procedure authorizes original process to be served by mail,

a copy of the process shall be mailed to the defendant by any form of mail

requiring a receipt signed by the defendant or his authorized agent.”).

However, as the trial court noted, Rule 403 applies only to situations in which

a plaintiff is authorized to serve a defendant with original process by mail.

Trial Court Opinion, 1/26/24, at 5 (citing Pa.R.C.P. 403). Under Pa.R.C.P.

440, “[c]opies of all legal papers other than original process” may be served

on an unrepresented party by regular mail “at the address … endorsed on an

appearance or prior pleading … of the party.” Pa.R.C.P. 440(a)(2)(i). Our

review of the record discloses Shue properly served Appellant with his filings

by regular mail, at the address Appellant provided in her complaint.

Therefore, Appellant’s first issue merits no relief.

In her second issue, Appellant asserts the trial court erred in opening

the default judgment “because [Shue] chose to wait 81 days before doing

anything.” Appellant’s Brief at 9. Appellant devotes only one sentence to this

issue and cites no supporting authority. Id. The trial court correctly observed

that Appellant’s default judgment was void ab initio because her complaint did

not contain a notice to defend, and because she “entered judgment by default

prior to the tenth day after issuance of the notice of default….” Trial Court

Opinion, 1/26/24, at 3 (citing Pa.R.C.P. 1018.1 and 237.1); see also id. at 3

n.2 (noting Appellant also failed to effectuate proper service of original

process). Under these circumstances, the trial court properly concluded it

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“had no recourse but to open the judgment.” Id. at 3; see also Mother’s

Rest., Inc. v. Krystkiewicz, 861 A.2d 327 (Pa. Super. 2004) (holding default

judgment was void ab initio where plaintiff’s complaint did not contain a notice

to defend); Erie Ins. Co. v. Bullard, 839 A.2d 383, 387 (Pa. Super. 2003)

(a default judgment is void ab initio where the record reflects a plaintiff’s

“failure to comply with Rule 237.1.”). Accordingly, Appellant’s second issue

merits no relief.

In Appellant’s third, fourth, and fifth issues, she argues she was denied

“her rights to be heard,” was not given a court date, and was not able to

respond to unspecified filings and orders. Appellant’s Brief at 4-5, 9, 16. She

asserts “every time I asked for a court date … [t]hey claim[ed] there was no

law or reason to hold a hearing….” Id. at 16. Without citing any authority,

Appellant maintains she “should have gotten a hearing.” Id. at 16-17.

As set forth above, when denying Appellant’s “Motion to present the

case in trial,” the trial court advised Appellant to consult the local rules and

list the case for an arbitration hearing. See Order, 8/7/23. Our review of the

record discloses Appellant never sought to list the case for an arbitration

hearing, nor did she take any action that would have merited any other type

of hearing. Therefore, these issues merit no relief.

In her sixth, seventh, and eighth issues, Appellant challenges Shue’s

alleged failure to answer a subpoena and the trial court’s alleged failure to

“look at all the documents filed and accepted by the courts.” Appellant’s Brief

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at 4-5. Though set forth as questions presented, these issues are not

mentioned elsewhere in Appellant’s brief. Accordingly, they are waived. See

Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015) (“The

failure to develop an adequate argument in an appellate brief may result in

waiver of the claim under Pa.R.A.P. 2119.”). Even if not waived, however,

Appellant’s issues would not merit relief.

The trial court correctly observed that Appellant’s subpoena was

defective. Trial Court Opinion, 1/26/24, at 6 n.5. Moreover, any documents

Appellant might have obtained via subpoena or discovery would have been

irrelevant to the disposition of Shue’s motion for judgment on the pleadings.

Id. at 5-6; see also Tibbitt v. Eagle Home Inspections, LLC, 305 A.3d

156, 159 (Pa. Super. 2023) (in ruling on a motion for judgment on the

pleadings, a court “confines its consideration to the pleadings and documents

properly attached thereto.”). Finally, the trial court considered all the

appropriate documents in ruling on the motion for judgment on the pleadings.

See Trial Court Opinion, 11/13/23, at 11.

In her ninth and tenth issues, Appellant argues she met “all the

requirements” to prove fraudulent misrepresentation and breach of contract.

Appellant’s Brief at 5, 12-15. Appellant failed to raise these issues in her Rule

1925(b) statement and therefore, they are waived. Bonnett, 239 A.3d 1096,

1106 (Pa. Super. 2020). Even if not waived, they merit no relief. Appellant

asserts all the elements of fraudulent misrepresentation and breach of

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contract are met, but relies on a recitation of facts not alleged in her

complaint. Appellant’s Brief at 9-15. Appellant’s brief fails to cite her

complaint and address where it demonstrated the elements of any cause of

action. The trial court properly concluded Appellant’s pleadings failed to state

any cause of action. Trial Court Opinion, 11/13/23, at 12-14; see also

Monroe v. CBH20, LP, 286 A.3d 785, 796 (Pa. Super. 2022) (en banc)

(“Judgment on the pleadings may be entered when there are no disputed

issues of fact and the moving party is entitled to judgment as a matter of law.”

(citation omitted)).

For the reasons set forth above, none of Appellant’s issues merit relief.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 05/29/2024

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