J-A12023-14


NON-PRECEDENTIAL DECISION                      SEE SUPERIOR COURT I.O.P 65.37



IN RE: LIEN ASSERTED AGAINST                          IN THE SUPERIOR COURT OF
MATTHEW HEFFRAN                                             PENNSYLVANIA




APPEAL OF: MATTHEW HEFFRAN

                                                          No. 2140 EDA 2013


              Appeal from the Judgment Entered October 30, 2013
                 in the Court of Common Pleas of Pike County
                        Civil Division at No.: 1389-2012


BEFORE: SHOGAN, J., FITZGERALD, J., and PLATT, J.*

DISSENTING MEMORANDUM BY PLATT, J.:                  FILED SEPTEMBER 03, 2014


        I respectfully dissent.     In my view, Appellant failed to present clear

and convincing evidence of fraud, or any of his additional claims. I discern

no abuse of discretion or error of law. Therefore, I would conclude, under

our standard of review, that the trial court properly granted a directed

verdict in favor of Appellee. Accordingly, I would affirm.

        To prove fraud, Appellant was required to establish the following

elements:

        (1) a representation; (2) which is material to the transaction at
        hand; (3) made falsely, with knowledge of its falsity or
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A12023-14


       recklessness as to whether it is true or false; (4) with the intent
       of misleading another into relying on it; (5) justifiable reliance
       on the misrepresentation; and (6) the resulting injury was
       proximately caused by the reliance.

Weissberger v. Myers, 90 A.3d 730, 735 (Pa. Super. 2014) (citation

omitted).   From my review of the record, Appellant failed to prove any of

these elements.



convincing evidence. Clear and convincing evidence is the highest burden

in our civil law and requires that the fact-finder be able to come to clear

                                                                               Id.

(citation omitted, emphasis added).

       The learned Majority acknowledges that evidence of fraud must be

clear and convincing.     (See Majority, at *5).       Nevertheless, assuming,

(without citation to authority, or the record), that the intent of Appellee

                                                                disagree on the



(Id.

                                                                             -and-

convincing evidence to a mere hypothetical uncertainty.




well-settled   clear-and-convincing   standard   for   his   burden   of     proof.

       Furthermore, in my view, by not addressing the six elements required

                                      -2-
J-A12023-14


to establish fraud, and relying instead on an incidental mistake of the trial

court, (see infra at *4 n.3), the learned Majority errs in disregarding the

                                                                      claims

are, in reality, predicated.

      Similarly, I can discern no error of law or abuse of discretion in the



the learned Majority, punitive damages are appropriate only in cases of




denials notwithstanding, all of his claims, including the punitive damages

claim, rely on the same predicate, the purported attempt to collect on the

allegedly fraudulent miscalculation of the subrogation lien.     Absent this

claim, no others remain.

      Taking the evidence here in the light most favorable to Appellant as

the non-moving party, there was vigorous disagreement, most notably

between counsel, and various apparent mistakes on both sides, over

calculation of the amount of the subrogation lien (representing how much

Appellant had to reimburse the workers compensation carrier, out of the

settlement he reached with the tortfeasor, for funds the insurer had already

advanced to him). There is no dispute that Appellant owed some amount to

Appellee to satisfy the subrogation lien.




                                     -3-
J-A12023-14


       The record is replete with instances of dilatory and uncooperative

behavior



well as his apparent delay in reporting the settlement with the tortfeasor

                                       , but to a remote office in Kentucky), not to



(making it impossible to calculate an exact amount for repayment of the

subrogation lien), engendered aggressive strategic responses.

       What



evil motive or reckless indifference.

       In my opinion, this deficit was not remedied by the simple expedient of

having a de facto expert witness,1 who only reviewed the limited

documentation2       provided    to   him      by   counsel   for   Appellant,   proclaim


____________________________________________


1
   James C. Haggerty, Esq. testified over the objection of counsel for
Appellee. (See N.T. Trial, 6/18/13, at 58-59). It is undisputed that he had
no direct involvement in the underlying case. The trial court stresses that
Attorney Haggerty was never formally qualified as an expert witness. (See
Trial Court Opinion, 9/12/13, at 6). The record confirms that he was never
formally offered, let alone accepted, as an expert witness.
2
   E.g.
documentin
final calculation of the subrogation amount, and a persistent issue in the
litigation. (See N.T. Trial, at 101).




                                            -4-
J-A12023-14


involvement in the case, Attorney Haggerty could not testify as a fact

witness. The record confirms that Haggerty was never properly admitted as

an expert.

of facts.

issue of material fact, which would require that any of the claims at issue go

to the jury.3



waived for failure to develop an argument supported by pertinent citation to

authority.    Mere recitation of multiple cases, and appendage of a blanket

conclusion, without specific, pertinent analysis applying the principles of the

cited cases to the case on appeal, is insufficient to develop an argument or
____________________________________________


3
    I agree with the learned Majority that the trial court incorrectly relied on

conclusion.     (Majority, at 6).    This was a specific concession (used, in the

taking advantage). (See N.T. Trial, at 80). However, in the paragraph
following the one cited by the Majority, the trial court qualifies its conclusion

completeness, this was not the only reference to a mistake. Mr. Haggerty
did not dispute that in his direct testimony he had used the term mistake
seven
          See N.T. Trial, at 101). To be sure, Attorney Haggerty took many


factual evidence of the fraud claims at issu
apparent over-
conclusion that Appellant failed to produce clear and convincing evidence of
fraud remains unimpeached. We may affirm the decision of the trial court
on any basis, provided it is legally correct. See Matharu v. Muir, 86 A.3d
250, 261 (Pa. Super. 2014).




                                           -5-
J-A12023-14


to enable meaningful appellate review.           (See Appe                  -15);

see also

                                                    see

fails to comply with Pa.R.A.P. 2119(c), Reference to record

develop an argument for [the appellant], nor shall we scour the record to

find evidence to support an argument; consequently, we deem this issue

            J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402,

411 (Pa. Super. 2012) (citation omitted).            I would conclude here that

Appellant failed to present a case for the jury at trial, and failed to develop a

pertinent argument on appeal.          The trial court properly granted a directed

verdict under our standard of review.

       Accordingly, I respectfully dissent.4




____________________________________________


4
    For the sake of completeness, I note my disagreement with the learned


distinct legal claim, namely, clear and convincing evidence, sufficiency of
evidence for the additional (non-fraud) claims, and whether there were
genuine issues of material fact. (See A
none of the separate issues merit relief on any other basis, it is not
necessary to address them further.



                                           -6-
