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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
NANCY NICOLAOU AND NICHOLAS IN THE SUPERIOR COURT OF
NICOLAOU PENNSYLVANIA
Appellants
v.
JAMES J. MARTIN, M.D., LOUISE A.
DILLONSYNDER, CRNP, JEFFREY D.
GOULD, M.D., ST. LUKE’S HOSPITAL, ST.
LUKE’S HOSPITAL AND HEALTH
NETWORK, ST. LUKE’S HOSPITAL UNION
STATION MEDICAL SURGICAL CLINIC
D/B/A ST. LUKE’S SOUTHSIDE MEDICAL
CENTER, ST. LUKE’S ORTHOPEDIC
SURGICAL GROUP, AND NAZARETH
FAMILY PRACTICE
Appellees No. 1286 EDA 2014
Appeal from the Order Entered on February 24, 2014
In the Court of Common Pleas of Lehigh County
Civil Division at No.: 2012-C-0518
BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY WECHT, J.: FILED MARCH 24, 2015
Pennsylvania Rule of Appellate Procedure 2101 empowers this Court to
dismiss an appeal “if the defects . . . in the brief or reproduced record of the
appellant . . . are substantial.” Pa.R.A.P. 2101. In this case, the Nicolaous,
representing themselves, have submitted to this Court a brief that does not
include a substantive argument that addresses the merits of their claim. Nor
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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do the Nicolaous support their putative claim for relief with citations to
binding cases or authorities, in plain violation of Pa.R.A.P. 2119(a)
(mandating that an appellant’s argument be “followed by such discussion
and citation of authorities as are deemed pertinent.”).
The failure entirely to submit an argument to this Court is the most
“substantial” defect that I can envision when reviewing the adequacy of an
appellant’s brief, trumped only by failing to file a brief at all. Under
established precedent, the Nicolaous’ pro se status does not afford them an
exemption from our deeply entrenched rules of waiver, rules that inarguably
are necessary to ensure the fair and expedient disposition of cases. We
must apply our rules equally to the represented and the unrepresented, the
worthy and the unworthy, and the sympathetic and the unsympathetic. The
law is a process, not a result.
Despite the Nicolaous’ clear and inexcusable failure to supply this
Court with a meaningful argument, the learned Majority nonetheless
exempts them from our waiver rules because they are (the Majority
assumes) advancing the same argument that they raised in the trial court.
See Maj. Mem. at 8 n.5. This ad hoc, informal exemption violates multiple
rules of waiver. The esteemed Majority’s rationale functionally upends those
rules. Hence, I respectfully dissent.
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa.
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Super. 2002); see Pa.R.A.P. 2119(a), supra. “It is not this Court’s function
or duty to become an advocate for the appellant.” Commonwealth v.
Birdseye, 637 A.2d 1036, 1043 (Pa. Super. 1994). “[W]here an appellate
brief fails to provide any discussion of a claim with citation to relevant
authority or fails to develop the issue in any other meaningful fashion
capable of review, that claim is waived.” Commonwealth v. Johnson, 985
A.2d 915, 924 (Pa. 2009); Estate of Lakatosh, 656 A.2d 1378, 1381 (Pa.
Super. 1995) (an appellant waives issues where corresponding argument in
brief includes only general statements without appropriate citation to
authority); Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011)
(same).
The body of the Nicolaous’ brief spans only four pages. The entirety of
the argument section of that brief contains only the following eleven lines of
single-spaced text, which are mostly quotations from the depositions taken
in this case, and which I reproduce verbatim (and uncorrected) here:
Pg. 8 (Pg 59 §14) Question; “Who was Dr. Anthony Lionetti is
that familiar to you?” Answer; yes but I don’t recall.
Pg. 6 (Pg 33 § 9) Question; “I was asked after Dr. Martin
Counsel proceeds to say I started treating at St. Lukes Union
Station” Answer; Yes.
Those answers were incorrect reason of memory loss. This is an
example of brain fog totally leaving out the Lyme Disease Center
in Philipsburg, NJ.
Pg. 7 (Pg 38 §§7-10) Question; after no longer being seen by
Dr. Martin, who did you go to for medical care? Answer; To the
St Lukes clinic.
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At three times I was asked and I’m still leaving out the Lyme
Disease Center. These are three examples of brain fog and
memory loses from lesions all over my brain spread by lack of
treatment, from the wrong drug and countless times given IV
steroids.
Brief for the Nicolaous at 5. Conspicuously absent from the Nicolaous’
argument are citations to relevant statutes or precedential cases. In fact,
the argument section contains no citations to authority at all, nor is it
developed in a manner that would allow us to comprehend or analyze the
argument. Indeed, the Nicolaous have failed to supply this Court with
cogent, developed arguments accompanied by citations to relevant binding
authority sufficient to satisfy Pa.R.A.P. 2119. Without such arguments and
citations, this Court cannot engage in meaningful appellate review.
In the face of this, the learned Majority endeavors to manufacture an
exception specifically designed to permit the Nicolaous to avoid waiver. Why
the Majority does so is unclear. The Majority does not reveal whether it is
giving special treatment to the Nicolaous because they happen to strike the
Majority as sympathetic appellants or because the Majority feels that the
Nicolaous must somehow and in some way be afforded relief on their claim.
What is clear is that the Majority’s special exemption finds no support in our
case law, statutes, or rules of procedure, a fact made glaringly evident by
the conspicuous absence of any supporting authorities in the Majority’s
discussion of waiver. See Maj. Mem. at 8 n.5.
The Majority says that the Nicolaous have not waived their argument
because they raised the same argument below. How the Majority can
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discern or even imagine the contours of the argument that the Nicolaous
actually are raising is unknowable, inasmuch as the Nicolaous raise no
substantive argument whatsoever in their brief. As we are a common law
court, we must be pronouncing that every party who has preserved an issue
before a trial court now would fall under the Majority’s newly-created
exception. To hold that a party is exempt from our precedents because it
raised an issue in the court below is to erase the many rules that we have
(and that we apply daily and remorselessly, as, for example, many post-
conviction petitioners can attest) pertaining to the form and content of
appellate briefs, including the requirement to draft and submit an argument
that is supported by pertinent authorities. Even worse, if the Majority’s
analysis is to be credited, a party need not file a brief at all. We could
simply look to the certified record and rummage around there to cobble
together some kind of argument to assist an appellant. Of course, we
cannot do that; we are prohibited from acting as counsel for a party. See
Birdseye, supra. On appeal, we only address the arguments presented to
us here by the parties; we do not search around in the trial papers and then
craft arguments after the fact in order to lend a hand to those parties we
deem worthy of our assistance. Rules are rules because they apply
uniformly to all.
By fair extension, the Majority’s logic also would rewrite the waiver
rules that accompany Pa.R.A.P. 1925(b) practice. Typically, if a party fails
to include an issue in its Rule 1925(b) concise statement, that issue is
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waived for appellate purposes. See Lineberger v. Wyeth, 894 A.2d 141,
148 (Pa. Super. 2006). However, the Majority’s innovation here (assuming
it applies to everyone and not just to appellants deemed sympathetic to a
particular panel on a particular day) would excuse the failure to comply with
the rule so long as the issue seems to be the same as that raised and
argued before the trial court. Needless to say, such a result is not
sustainable.
The Majority’s analysis fails not only in its grand strokes, but in its
finer points as well. The Majority’s holding necessarily rests upon the notion
that a party’s argument remains fixed and unchanging as the party
maneuvers from the trial court into and through the appellate process. Of
course, this is simply not the case. While the crux of the argument must
stay the same, so as to avoid waiver for not preserving the issue, the
argument can and does evolve and develop based upon a multitude of
factors. For instance, an appellant’s argument must be framed on appeal
based upon the relevant standard of review that we apply. Before the trial
court, an argument is framed to achieve substantive relief. However, on
appeal, the argument most often must be constructed so as to demonstrate
that the trial court’s decision was an abuse of discretion. Additionally, the
appellant often must respond to the rationale that the trial court sets forth
for a particular decision in the court’s Pa.R.A.P. 1925(a) opinion. There is no
question that an argument may change, expand, or contract based upon the
manner in which a trial court resolves an issue, which often cannot be
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ascertained until that court explains itself in its Rule 1925(a) opinion.
Finally, the law itself changes. It is not uncommon for our precedents to
shift in one direction or another between the day when an initial argument is
made at the trial level and the day when the argument is presented to this
Court. Respectfully, I believe that the Majority’s approach--plucking an
argument from the trial record and insisting that the argument will be
exactly the same on appeal--is misguided, and functionally ignores each of
the possible scenarios (and in some cases, probabilities) referenced above.
It cannot be gainsaid that we often exercise judicial discretion. But
our discretion is not unlimited. We must apply our rules fairly and
consistently, no matter the individual status of the appellant. Otherwise,
they are not rules, but perhaps guidelines to be honored in the breach, or
idiosyncratically when the mood strikes us. The Nicolaous have failed in
their substantive obligation to provide this Court with an argument.
Sympathetic as the Nicolaous may be, we cannot grant them special
privileges that we refuse to extend to all who come before this Court. When
we head down that path, there is no end. We open the door to free-
wheeling creation of different rules for the more sympathetic and the
privileged, and we close doors to those that we personally deem undeserving
of the fruits of our equity. We are duty-bound to treat everyone who seeks
relief in this Court equally. By granting the Nicolaous an exemption, we take
the first step in derogation of that duty.
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I would hold that the Nicolaous have waived the only issue that they
present to this Court. The learned Majority holds otherwise. Therefore, I
respectfully dissent.
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