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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
DIANE R. GOCHIN, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. : No. 2822 EDA 2016
:
RANDEE FELDMAN :
Appeal from the Order Entered August 4, 2016,
in the Court of Common Pleas of Montgomery County
Civil Division at No. 2011-25251
BEFORE: BOWES, J., DUBOW, J. AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 17, 2017
Diane R. Gochin appeals pro se from the August 4, 2016 order
entered in the Court of Common Pleas of Montgomery County that denied
her motion to re-open or strike judgments. We affirm.
The trial court set forth the tortured procedural history of this case,
noting that, “[f]or the sake of brevity, only the history relevant to the
matters complained of on appeal will be discussed.” (Trial court opinion,
10/27/16, at 1 n.1.)
[Appellant] commenced this action by filing a
civil complaint against Randee Feldman, Esquire
(“[appellee]”), her husband’s divorce attorney, on
September 7, 2011. [Appellant] filed an Amended
Complaint on October 19, 2011 alleging two counts
of Abuse of Process and Tortious Interference with
Contractual Relations, Abuse of Process and Fraud,
Fraud upon the Court and Intentional Infliction of
Emotional Distress to [appellant] and her Minor
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Child.[Footnote 2] The counts alleging Abuse of
Process and Fraud and Fraud upon the Court were
stricken by the Honorable Wendy Demchick-Alloy by
order dated April 27, 2012 which sustained
[appellee’s] preliminary objections to those claims.
[Footnote 2] [Appellant’s] petition to
join her minor child was denied on
October 24, 2012. Therefore, [appellant]
only has standing to assert this claim on
her own behalf.
On May 16, 2012, [appellee] filed an Answer
with New Matter with Counterclaim to [appellant’s]
Amended Complaint alleging 107 paragraphs of
additional facts and raising a claim for attorney’s
fees and damages pursuant to 42 Pa.C.S.A. § 2503.
On June 11, 2012, [appellant] filed a Motion to
Strike [appellee’s] New Matter with Counterclaim
which was denied by order dated March 20, 2013.
On April 17, 2015 [appellant] filed an “Answer to
[appellee’s] Frivolous Counterclaim in the Nature of a
Motion for Judgment on the Pleadings” in which she
failed to respond to any of the factual allegations set
forth in [appellee’s] New Matter with Counterclaim.
Instead, [appellant] cited Pennsylvania Rule of Civil
Procedure 1034 regarding motions for judgment on
the pleadings. [Appellant] set forth six paragraphs
in which she alleged her complaint was given merit
by the court’s denial of [appellee’s] preliminary
objections and claimed [appellant] already addressed
[appellee’s] counterclaim in the answers to
preliminary objections and various memoranda. This
motion was treated as a motion for judgment on the
pleadings and was denied by the undersigned on
June 25, 2013. On August 26, 2014, [appellant]
filed a “Memorandum of Law in the Nature of a
Second Motion to Dismiss [appellee’s] New Matter
and Counterclaim” in which she argued the merits of
her own complaint rather than answer [appellee’s]
New Matter with Counterclaim. After oral argument,
the court denied said Motion by order dated
December 18, 2014. On January 30, 2015,
[appellant] filed a “Third Motion to Dismiss
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[appellee’s] Frivolous Counterclaim and Frivolous
New Matter and Motion for Sanctions for Vexatious
Filings.” On February 20, 2015, [appellee] filed a
Motion to Dismiss [appellant’s] Third Motion to
Dismiss. On February 25, 2015, [appellee] filed a
Petition to Enter Default Judgment on [appellee’s]
Counterclaim and Deem the Pleadings Closed. On
March 22, 2015, [appellant] filed a Petition for Leave
to file Joinder of Paul Troy as a Defendant. In this
Petition, [appellant] accused Mr. Troy of abuse of
process, making false statements, intentionally
delaying the litigation, acting in bad faith, and
violating attorney rules of conduct, the Pennsylvania
rules of civil procedure and the laws of the
Commonwealth. On April 8, 2015, [appellee] filed a
third Motion for Judgment on the
Pleadings.[Footnote 3]
[Footnote 3] The previous two, filed
January 2, 2014 and July 28, 2014 were
premature, because the pleadings did
not close until January 8, 2015 at which
time [appellant’s] answer to [appellee’s]
New Matter and Counterclaim was due.
Oral argument was held before the
undersigned on May 11, 2015 regarding nine
outstanding motions and petitions, including the four
at issue in the instant appeal. On June 23, 2015, the
court entered the following orders regarding the nine
outstanding motions and petitions:
1. Order denying [appellee’s] Motion for
Reconsideration of the October 10, 2014
Order Denying [appellee’s] Motion for
Judgment on the Pleadings as moot.
2. Order denying [appellant’s] Petition for
Leave to File Joinder of Paul Troy as
Defendant[.]
3. Order denying [appellee’s] Motion to
Dismiss [appellant’s] Amended
Complaint Pursuant to Pa.R.C.P. 233.1[.]
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4. Order granting [appellant’s] Petition to
Proceed In[ F]orma Pauperis.
5. Order granting [appellee’s] Motion for
Judgment on the Pleadings.
6. Order denying [appellee’s] Motion for
Sanctions Pursuant to 1023.1(c) and
1023.2(b) Related to [appellant’s] Motion
to Dismiss and for Sanctions (Again).
7. Order denying [appellant’s] Motion for
Protective Order as moot.
8. Order granting in part and denying in
part [appellee’s] Petition to Enter Default
Judgment on [appellee’s] Counterclaim
and Deem the Pleadings
Closed.[Footnote 4]
[Footnote 4] The court
denied as moot the portion of
this petition which sought to
have the pleadings deemed
closed as they were already
closed as a matter of law on
January 8, 2015. See
Newspaper Guild of
Greater Philadelphia,
AFL-CIO v. Philadelphia
Daily News, Inc., 164 A.2d
215 (Pa. 1960).
9. Order granting [appellee’s] Motion to
Dismiss [appellant’s] (Third) Motion to
Dismiss New Matter and Counterclaim
and Request for Sanctions pursuant to
Pa.R.C.P. 233.1.
[Appellant] filed a timely appeal of the
following four orders only on July 14, 2015:
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a) Order denying [appellant’s] Petition for
Leave to File Joinder of Paul Troy as
Defendant[.]
b) Order granting [appellee’s] Motion for
Judgment on the Pleadings.
c) Order granting in part and denying in
part [appellee’s] Petition to Enter Default
Judgment on [appellee’s] Counterclaim
and Deem the Pleadings Closed.
d) Order granting [appellee’s] Motion to
Dismiss [appellant’s] (Third) Motion to
Dismiss New Matter and Counterclaim
and Request for Sanctions pursuant to
Pa.R.C.P. 233.1.
The undersigned filed of record its
Rule 1925(a) opinion on September 11, 2015. On
November 30, 2015, the Superior Court quashed
[appellant’s] appeal because the court’s order
granting default judgment on [appellee’s]
counterclaim was not a final order.
On January 28, 2016, [appellee] withdrew
[his] counterclaim. On April 7, 2016, [appellant]
then filed a Petition to Strike Judgments asking the
court to “strike the Judgments entered on June 23,
2015, granting a default on [appellee’s] Motion for
Default Judgment on their Counterclaim and the
Order granting [appellee’s] Motion to Dismiss
[appellant’s] Motion to Dismiss that Counterclaim
and for Sanctions. On that same day, [appellant]
filed a Motion to Re-Open or Strike Judgments and
asked the court to strike or re-open the orders which
granted [appellee’s] Motion for Judgment on the
Pleadings and Motion for Leave to Join Paul Troy. By
orders dated August 4, 2016, the undersigned
denied [appellant’s] Petition to Strike and the Motion
to Re-Open or Strike.
[Appellant] filed a notice of appeal on
August 17, 2016 of the order denying her Motion to
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Re-Open or Strike only. The undersigned issued an
order directing [appellant] to file a concise statement
of errors complained of on appeal consistent with
Pa.R.A.P. 1925(b). In response, [appellant]
submitted a nine-page narrative on August 22, 2016.
Trial court opinion, 10/27/16 at 1-4 (record citations omitted).
A concise statement on appeal must be specific enough for the trial
court to identify and address the issue or issues that the appellant wishes to
raise on appeal. In re A.B., 63 A.3d 345, 350 (Pa.Super. 2013).
Pennsylvania Rule of Appellate Procedure 1925
provides that a Rule 1925(b) statement “shall
concisely identify each ruling or error that the
appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.”
Pa.R.A.P. 1925(b)(4)(ii). “Issues not included in the
Statement and/or not raised in accordance with the
provisions of this [Rule] are waived.”
Pa.R.A.P. 1925(b)(4)(vii).
This Court has considered the question of what
constitutes a sufficient 1925(b) statement on many
occasions, and it is well-established that “Appellant’s
concise statement must properly specify the error to
be addressed on appeal.” Commonwealth v.
Hansley, 2011 PA Super 129, 24 A.3d 410, 415 (Pa.
Super. 2011), appeal denied, 613 Pa. 642, 32 A.3d
1275 (2011) (citation omitted). “[T]he Rule 1925(b)
statement must be specific enough for the trial court
to identify and address the issue an appellant wishes
to raise on appeal.” Id. (brackets, internal quotation
marks, and citation omitted). Further, this Court
may find waiver where a concise statement is too
vague. Id. “When a court has to guess what issues
an appellant is appealing, that is not enough for
meaningful review.” Commonwealth v. Dowling,
2001 PA Super 166, 778 A.2d 683, 686 (Pa. Super.
2001) (citation omitted). “A Concise Statement
which is too vague to allow the court to identify the
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issues raised on appeal is the functional equivalent of
no Concise Statement at all.” Id. at 686-87.
Id.
Here, appellant’s nine-page “concise statement” begins with her
contention that “[i]t is very easy to rig the outcome of a case,” continues
with a rambling of various conspiracy theories as to how she lost the
underlying action, and then ends with an allegation that the trial court’s
“conduct is impeachable.” (Appellant’s concise statement pursuant to
Rule 1925(b), 8/22/16.) Appellant’s “concise statement” is the functional
equivalent of no statement at all. Therefore, appellant waives all issues on
appeal.
Nevertheless, we note that we have reviewed appellant’s “brief” and it
fails to include a statement of questions presented. We have recognized
that the omission of a statement of questions presented is “particularly
grievous since the statement . . . defines the specific issues this court is
asked to review.” Smathers v. Smathers, 670 A.2d 1159, 1160
(Pa.Super. 1996), quoting Commonwealth v. Maris, 629 A.2d 1014, 1016
(Pa.Super. 1993). “When the omission of the statement of questions
presented is combined with the lack of any organized and developed
arguments, it becomes clear that appellant’s brief is insufficient to allow us
to conduct meaningful judicial review.” Smathers, 670 A.2d at 1160.
Here, in addition to failing to include a statement of questions
presented, appellant also failed to include a statement of jurisdiction, a copy
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of the order in question, a statement of both the scope of review and the
standard of review, and a statement of the case. Notably, appellant even
failed to include an argument. Instead, appellant begins her submission to
this court as follows:
Appellant is submitting this to stand as her Brief.
[The trial court] was requested to recuse from this
case, but has refused to do so, even though the
following is the content of a federal lawsuit against
him and [appellee]. There will be no more time,
energy or money spent on trying to pursue justice in
a system that is obviously nothing more than legal
industry fueled by cronyism.
Appellant’s brief at 1. What follows appears to be the contents of the federal
complaint that appellant claims to have filed against the trial court and
appellee. After reviewing that, we wish to note that even if appellant did not
waive her appellate issues for failure to comply with Pa.R.A.P. 1925(b), the
substantial defects in her “brief” would have nevertheless precluded us from
conducting any meaningful judicial review, and we would have dismissed
this appeal. See Pa.R.A.P. Rule 2101; see also Smathers, 670 A.2d at
1160-1161.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/17/2017
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