Marrone, T. v. Mieloch, D.

• Court: Superior Court of Pennsylvania
• Decided: October 8, 2021
• Docket: 2294 EDA 2020
• Status: Unpublished

Opinion

J-A19006-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THOMAS MORE MARRONE AND MAX : IN THE SUPERIOR COURT OF PHILIP MARRONE : PENNSYLVANIA : Appellants : : : v. : : : No. 2294 EDA 2020 DANUTA MIELOCH :

Appeal from the Judgment Entered January 14, 2021 In the Court of Common Pleas of Philadelphia County Civil Division at No. 170903152

BEFORE: DUBOW, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY MURRAY, J.: FILED OCTOBER 8, 2021

Appellant, Thomas More Marrone, Esquire (Marrone),1 appeals from the

judgment entered in this replevin, trespass, and conversion action brought

against Appellee, Danuta Mieloch, who is Marrone’s estranged wife (Wife). We

affirm.

On April 9, 2017, the parties were involved in a domestic dispute which

led to Marrone’s arrest.2 On May 5, 2017, a temporary protection from abuse

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* Retired Senior Judge assigned to the Superior Court.

1 Appellant Max Philip Marrone is Marrone’s adult son. Although a named party, Max Marrone has had minimal involvement in this case. We reference Thomas Marrone as “Marrone,” and both men collectively as “Appellants.”

2 The record does not provide further details about the arrest or any charges. J-A19006-21

(TPFA) order was entered excluding Marrone from the couple’s condominium

(the Condo). Trial Court Opinion, 10/29/20, at 4-5.

In violation of the TPFA, Marrone went to the Condo several times to

retrieve belongings, but took only a few items and refused to take the rest.

Id. The parties thereafter arranged for Marrone to go to the Condo with a

police escort to retrieve the remaining items. Id. at 6. Wife “carefully

organized, hung and packed [Appellants’] personal belongings and neatly

located them together in an area where Mr. Marrone could easily remove

them.” Id. On July 24, 2017, “Mr. Marrone did visit the Condo . . . with a

police escort, driving there in a sedan apparently without a plan, capability or

the intention to remove his [or his son’s] personal property.” Id. at 7. He

took only a few things. Id.

At the advice of police, Wife rented a storage unit in Marrone’s name,

paid to move Appellants’ belongings to the unit, and paid the fees on the unit

for approximately 11 months. Id. at 7-10. Marrone knew about Wife’s actions

but refused a key to the unit and made no attempt to remove the belongings.

Id. at 9-10. Instead,

Mr. Marrone in what appears to be an unseemly spurious litigation (and intimidation) tactic, responded by accusing [Wife] of “identity theft” for causing the storage unit to be placed in his name, despite [the fact] that she provided no private Information in doing so and did not reveal his date of birth, social security number, bank account number or credit card information. Mr. Marrone reported the alleged “identity theft” to the police and FTC under the Fair Credit Reporting Act and by sending a letter along with the identity theft report to the storage facility on August 23, 2018.

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On September 20, 2017, Mr. Marrone, in a separate action in this [c]ourt, filed an Emergency Petition seeking a Preliminary Injunction to have the [c]ourt order [Wife] to move his personal property from the storage unit back to the Condo’s on-site storage unit, and other relief related to executing certain insurance proceed checks. On September 21, 2017, the [c]ourt entered an Order dismissing the Petition on the merits and closing the case, giving notice that the Order was a Final Order. Mr. Marrone did not appeal the dismissal of his action for injunctive relief.

Six days later, on September 27, 2017, Mr. Marrone filed this action seeking the same previously denied relief and asserting claims for replevin, trespass to chattels and conversion. Despite enjoying the free pre-paid storage and having no opposition accessing or freely using his personal property, Mr. Marrone irrationally refused the storage unit key, refused to obtain his property and ultimately refused to exercise any responsibility for or control over the property. Mr. Marrone elected to place his rights to the property at issue in this action and included a claim for injunctive relief requiring [Wife] to formally move his property into storage in the [Condo], relief to which he had already been denied. However, having failed to prevail on his emergency petition for that relief, Mr. Marrone again took no steps to recover or secure his property or exert dominion over it, but rather, elected to pursue a protracted, unreasonable and abusive litigious course of preliminary objections, discovery motions, multiple motions and other tactics that obstructed the fair and efficient progress of the matter and trial on the merits in this matter.

Mr. Marrone’s unreasonable and bad faith actions in refusing the key and declining to access or move his property, if he so chose, are inconsistent with the assertion of a possessory right over the property, leading to the conclusion that the non-credible self-hyper-valuation, and purported sentimental value based upon his identity theft claim and the institution of this and numerous other legal actions against [Wife] and her attorneys are the product of tactical posturing and a protracted litigation strategy rather than an honest desire to immediately secure possessions and protect their alleged value. Mr. Marrone conceded that his only reason for leaving the property at the storage unit for so long was a litigation posture (in other words, Mr. Marrone elected to exploit the court process and the self-inflicted “damages” and status of his property to try to pervert this action

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into an economic profit center for him and win at all costs, regardless of the status of the “priceless” property).

Id. at 11-13 (footnote, record citations, and paragraph numbers omitted;

paragraphs modified and emphasis added).

The case proceeded to a bench trial on October 7, 2020. On October

29, 2020, the trial court issued an order dismissing Appellants’ complaint, as

well as a comprehensive 33-page opinion detailing Marrone’s actions and

explaining the ruling in Wife’s favor. The court referenced Marrone’s “blatant

misrepresentation” that was “unfortunately consistent with Mr. Marrone’s . .

. conduct and misuse of the [c]ourt[.]” Id. at 4, n.2. The court expressly

found Marrone lacked credibility and described his claims as “specious.” Id.

at 11-12, 21. It concluded:

The [c]ourt finds Mr. Marrone’s testimony, in viewing it in totality, apparent self-interest, content and demeanor at trial, rendered him wholly non credible as a witness and the disproportionate amount of the conduct of litigation of dubious claims in this matter of record and the continuing evidence of truculent litigation posturing, unnecessarily contentiousness communication of counsel, e.g. in email exchanges and correspondence submitted of record, patent abuse of process and the perversion of this action into petty revenge seeking vehicle was and is a misuse of the [c]ourt.

Id. at 21.

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Appellants filed unsuccessful post-trial motions; they then filed this

appeal.3 The trial court ordered a Pa.R.A.P. 1925(b) concise statement. In

response, Appellants filed a 6-page statement listing 18 issues.4

The abuse of the court process continues in this appeal. Although there

were only three witnesses at the one-day bench trial, Appellants raise 16

issues and their brief exceeds 80 pages. See Commonwealth v. Small, 980

A.2d 549, 565 (Pa. 2009) (where appellant raised 18 issues, Supreme Court

noted “appellate advocacy is measured by effectiveness, not loquaciousness,”

and “volume on this scale numbs the reader and such quantity bespeaks a

lack of quality.”).

In addition, the brief contains numerous deficiencies which impede

appellate review. The 5-page, 16-issue statement of questions relates only

loosely to the argument. See Appellants’ Brief at 5-10, 41-73. Rule 2119

requires that the argument be “divided into as many parts as there are

3 Appellants purported to appeal from the order denying their post-trial motions. However, an appeal is properly taken from the entry of judgment. Appellants praeciped for entry of judgment on January 14, 2021, and thus jurisdiction has been perfected. See Pa.R.A.P. 905(a); American and Foreign Ins. Co. v. Jerry’s Sport Center, Inc., 948 A.2d 834, 842 n. 1 (Pa. Super. 2008) (a praecipe for the entry of judgment will perfect jurisdiction after an appeal is filed). 4 The statement is not concise or compliant with the Rules. See Pa.R.A.P. 1925(b)(4). Moreover, most of the claims are unpreserved and waived. See Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. 2004) (finding waiver where Rule 1925(b) statement contained numerous issues which “circumvented the meaning and purpose of Rule 1925(b)” and “effectively precluded appellate review”).

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questions to be argued.” See Pa.R.A.P. 2119(a). Appellants’ argument is

disorganized and repetitive. See e.g. Appellants’ Brief at pages 49-59

(conflating issues 5, 6, and 9), 62-73 (conflating issues 13 and 15). Further,

11 of the 16 issues are unpreserved either because they were not sufficiently

pled in the complaint,5 were not raised in post-trial motions,6 and/or are

undeveloped. See e.g., Zitney v. Appalachian Timber Products, Inc., 72

A.3d 281, 290-91 (Pa. Super. 2013) (citation omitted) (“If a plaintiff fails

properly to plead a separate cause of action, the cause he did not plead is

waived.”); see also Lenhart v. Cigna Companies, 824 A.2d 1193, 1196

(Pa. Super. 2003) (Pa.R.Civ.P. 227.1(c)(2) requires post-trial motions to

preserve issues for appellate review of a decision “in the case of a trial without

jury”; issues not raised in post-trial motions are waived). Appellants have not

included a “statement of place of raising or preserving of issues” as required

by Pa.R.A.P. 2117(c) and 2119(e). The record in this case is nearly 6,000

pages. It is “not the responsibility of this Court to scour the record to prove

that an appellant has raised an issue before the trial court, thereby preserving

5 Appellants did not plead a cause of action as to issues 8 and 10 (damages

to property caused by negligence of movers and identity theft). See Amended Complaint, 10/2/19, at 12-18; Appellants’ Brief at 6-7.

6 Issues 2, 3, 4, 5, 10, 12, 13, 14, 15, and 16 were not raised in post-trial

motions. See Motion for Post-Trial Relief, 11/12/20, at 1-8; Appellants’ Brief at 5-10.

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it for appellate review.” Commonwealth v. Baker, 963 A.2d 495, 502 n. 5

and n. 6 (Pa. Super. 2008) (citation omitted). We have explained:

The Rules of Appellate Procedure state unequivocally that each question an appellant raises is to be supported by discussion and analysis of pertinent authority. Appellate arguments which fail to adhere to these rules may be considered waived, and arguments which are not appropriately developed are waived. Arguments not appropriately developed include those where the party has failed to cite any authority in support of a contention. This Court will not act as counsel and will not develop arguments on behalf of an appellant. Moreover . . . the Commonwealth Court . . . has aptly noted that mere issue spotting without analysis or legal citation to support an assertion precludes our appellate review of a matter.

Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super. 2014) (bold and

underline emphasis added).

Appellants essentially argue facts in a light most favorable to themselves

— rather than Wife, who was the verdict winner — and attempt to retry the

case and/or impugn the trial judge. Much of the argument lacks citation to

pertinent authority or cites only general, boilerplate law, such that Appellants

have failed to develop meaningful legal argument for review. In sum,

Appellants have waived 11 issues, with the exception of issue 1 (relating to

trespass), issues 6, 7, and 11 (relating to damages), and issue 9 (relating to

collateral estoppel).

With respect to the remaining 5 issues, the Honorable James C.

Crumlish, III, sitting as the trial court, addresses the merits and explains: (1)

Appellants did not “address the Replevin cause of action and remedies or basis

for injunctive relief” at trial; (2) even if Appellants had made out a case for

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injunctive relief, they are collaterally estopped from pursuing it based on the

final order dismissing this claim in Marrone v. Kuestner, CCP No.

190501037; (3) the evidence was insufficient to sustain a claim for trespass

to chattels; (4) the evidence was insufficient to sustain a claim for conversion;

and (5) Appellants are not entitled to damages. See Trial Court Opinion,

10/29/20, at 2, 4-32; see also Restatement (Second) of Torts §§ 217, 218;

Martine v. National Sur. Corp., 262 A.2d 672, 675 (Pa. 1970). Accordingly,

we affirm Appellants’ preserved claims on the basis of the trial court’s well-

reasoned opinion. The parties shall attach a copy of the October 29, 2020

opinion to any relevant future pleadings in this case.

Judgment affirmed.

Judge Colins joins the memorandum.

Judge Dubow did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/8/2021

-8- Circulated 10/04/2021 11:43 AM