J. A02009/14

NON-PRECEDENTIAL DECISION            SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY THOMAS ANASTASIO                :    IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                  v.                    :
                                        :
CELESTE A. MORELLO,                     :         No. 2700 EDA 2012
                                        :
                       Appellant        :


           Appeal from the Judgment Entered October 31, 2012,
           in the Court of Common Pleas of Philadelphia County
            Civil Division at No. August Term, 2008, No. 01788


BEFORE: FORD ELLIOTT, P.J.E., OTT AND STRASSBURGER,* JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:         FILED AUGUST 28, 2014

     Appellant appeals the judgment entered following a hearing on

damages pertaining to a default judgment appellant obtained against

appellee. The trial court found that appellant failed to prove any damages

and awarded none. Appellant now appeals.

     The trial court briefly summarized the factual background:

                This case involves dueling claims for various
           forms of defamation arising out of a dispute in the

           business and Celeste Morello was selling her
           cookbook. This case commenced on August 15,
           2008 when Anthony Anastasio, (herein, Appellee)
           filed suit against Celeste Morello, (herein, Appellant)
           alleging defamation. The Appellant filed an Answer
           on March 16, 2009 and filed a counterclaim alleging
                                                   e 3, 2009, the

           unopposed Motion for Judgment on the Pleadings



* Retired Senior Judge assigned to the Superior Court.
J. A02009/14

            prejudice.   Thereafter on June 20, 2011 the
            Appellant secured a default judgment on her
            counterclaim when the Appellee failed to appear at

            William J. Fox, Esq. filed a motion for a hearing on
            damages; it was granted by the Honorable Paul P.

            was denied by the Honorable Paul P. Panepinto. On
            January 30, 2012, this Court held a hearing on the

            default judgment against the Appellee, she failed to
            prove damages for defamation existed. Two days
                                ttorney William J. Fox, Esq.
            withdrew his appearance.

                  The     Appellant     filed   a      Motion   for

            damages, docketed on January 31, 2012; this Court
            found no reason to respond. The Appellant also filed
            an untimely Post Trial Motion which this Court
            accepted as it appeared that when the Prothonotary
            withdrew the appearance of William J. Fox, they


            Trial Motion and docketed the Order on June 26,
            2012. On August 7, 2012 the Prothonotary entered


            Appellant had not received notice that her Post Trial
            Motion was denied. Subsequently, the Appellant
            appealed to the Superior Court on August 8, 2012.

Trial court opinion, 12/4/12 at 1-2.

      On appeal, appellant states her issues as follows:

            1.    Did the lower court err in the damages hearing
                  by not providing a legal basis to deny damages
                  to Appellant where an unappealed default
                  judgment was entered against Appellee who
                  waived all defenses and objections to all of the

                  defamation and false light claims?



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J. A02009/14

            2.    Did the lower court err and abuse its discretion
                  by failing to follow legal procedure and
                  Pennsylvania law while presiding over the
                  damages hearing where the defaulting party,
                  the Appellee, had waived his defenses, and
                  admitted to the claims?

            3.    Should a new damages hearing be granted
                  because the
                  were not in conformity with the law and had

                  actions by the judge at the damages hearing
                  lacked soundness for a lawful judgment?



      We must first note the many and largely insurmountable obstacles to



ensure that the notes of testimony from the damages hearing was included

                                                           appellant to ensure

that the original record certified for appeal contains sufficient information to

conduct a proper review may constitute a waiver of the issues sought to be

               Kessler v. Broder, 851 A.2d 944, 950 (Pa.Super. 2004).1

Appellant is essentially arguing that she presented sufficient evidence of


1
  Although this responsibility legally belongs to the appellant, it is our
practice to contact the trial court to attempt to obtain vital, but missing
parts of the record. Our prothonotary has reported to us that the trial court
was unable to find any notes of testimony. Thus, we have no choice but to
make appellant bear the consequences of a critically incomplete record.
Clearly, the notes of testimony existed at some point because appellant has
appended copies of a few pages from the notes of testimony to her appellate
brief and reply brief as reproduced record. Nonetheless, the few pages that
are provided are woefully insufficient for our review, and we also note that
reproduced record cannot substitute for the original certified record.
Kessler, 851 A.2d at 950.


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damages at trial to merit an award; however, without the notes of testimony

it is impossible for this court to determine the basic issue that underlies this

entire appeal.   Consequently, we can find no reason to reverse the trial



      Other major impediments exist. Appellant is proceeding pro se, and

while she does cite case precedent for support, her rambling brief reveals

that she is not conversant with the law or its application. The brief also does

not follow the statement of issues, but randomly raises and re-raises at later

points several unstated issues.   Ultimately, appellant appears to be of the

belief that once she has obtained a default judgment, she is automatically

entitled to some damages. That is simply not the law.

      Finally, we are without the guidance of a trial court opinion. The trial

                                                                      a concise

statement of errors complained of on appeal was so prolix as to constitute a

waiver of appellate rights, found no appealable legal issues, and provided no

analysis.



brief. Appellant contends that the trial court failed to follow the submitted

Pennsylvania Standard Jury Instructions as to awarding damages. However,



                                     ch is mandatory. We also note that the




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J. A02009/14

believes that the instructions mandate a finding of damages, but clearly the

language is permissive and conditional and does not mandate damages.

      Appellant next complains that the trial court failed to provide any legal

basis for its June 26, 2012 order awarding no damages and failed to provide

any legal basis in the ensuing opinion.      The June 26, 2012 order was

essentially the same as a jury verdict, that is, it was a finding of fact that

appellant proved no damages.       No legal analysis was called for and no

conclusions of law needed to be made.        Although the trial court did not

address this matter in its ensuing opinion for reasons already explained, had

it done so it may have indicated how appellant failed to meet her burden or

noted that the court found certain proffered evidence to be not credible.



not constitu

appellant failed to prove damages does not require legal analysis, and

without a transcript we are unable to review this finding.

      Next, appellant believes that the trial court made an improper

assessment as to liability between the parties where such had already been



following alleged comments by the trial court:

            THE COURT: This is where the Court, when I explain
            to the jury preponderance of the evidence, scales of
            justice preponderance.




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             MR. FOX: Preponderance of the evidence is the
             standard. We have to prove by preponderance of
             the evidence that she sustained damages.

             THE COURT:     Now, both counsel, what happens
             when the scales remain balanced at the end of the
             case? They remain equal?

Unattributed notes of testimony.



that it considered a contributory negligence defense.2           We disagree.

Espec

standard of proof as to damages, it is clear that the trial court was merely

observing that appellant had failed to tip the scales as to damages in her

favor. This was not an assessment as to contributory negligence or liability.

        Appellant next complains that the trial court failed to indicate in his

opinion that he had read the Counterclaim. Appellant asserts that a reading

of the Counterclaim is essential to an assessment of damages.

open to question that . . . facts averred in [pleadings] . . . are not evidence

                                                                 Singleton v.

Johnson, 929 A.2d 1224, 1231 (Pa.Cmwlth. 2007), quoting Atlas Bolt and

Screw Company v. Komins, 10 A.2d 871, 872 (Pa.Super. 1940). Thus, it

would have been improper for the trial court to consider the averments in




2
  One of the counts of the Counterclaim was for negligent defamation.
Appellant suggests that appellee raised a defense of contributory negligence
at the damages hearing. We have no way to verify this.


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the Counterclaim except where they were placed in evidence.       Appellant

makes no assertion that any of the averments were placed into evidence.

     Appellant next asserts that the trial court failed to make computations



see no error. Where a court has found that no damages have been proven,

it would be a pointless exercise to have the court itemize each category of




default judgment compels a finding of damages is incorrect. Moreover, the

certified record that has been compiled on appeal does not permit us to

review whether appellant proved any damages at the hearing. Accordingly,

we will affirm the judgment.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/28/2014




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