J-A33033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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