J-A07038-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARIANNE F. GASIOR, AN INDIVIDUAL              IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                         Appellant

                    v.

KENNAMETAL, INC., A PENNSYLVANIA
CORPORATION, QUENTIN C. MCKENNA,
ROBERT L. MCGEEHAN, RICHARD J.
ORWIG, DAVID T. COFER, THE LATROBE
BULLETIN, THE GREENSBURG TRIBUNE
REVIEW AND MICHAEL MAHADY

                         Appellees                  No. 1375 WDA 2014


                Appeal from the Order Entered July 25, 2014
             In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD 92-13689


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                           FILED MARCH 20, 2015

      Appellant, Marianne F. Gasior, appeals pro se from July 25, 2014 order

denying her motion to open a judgment of non pros entered in favor of

Appellees, Kennametal, Inc. (Kennametal), Quentin C. McKenna, Robert L.

McGeehan, Richard J. Orwig, David T. Cofer, The Latrobe Bulletin (Bulletin),

The Greensburg Tribune (Tribune), and the Honorable Michael Mahady.

After careful review, we affirm.

      The trial court summarized the underlying factual history of this case,

taken from Gasior’s complaint, as follows.

                  [Gasior] is an attorney licensed to practice law
            in the Commonwealth of Pennsylvania. She resigned
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          from her previous employment to take a position
          with Kennametal on May 1, 1989.

                On June 26, 1989, she was asked by the Credit
          Department whether or not the Legal Department
          had authorized an ongoing exportation of military-
          related products to Matrix Churchill Company, a
          company owned by the Republic of Iraq. [Gasior],
          upon investigation, determined that Kennametal did
          not have a license to export military-related material
          to Iraq and attempted to halt the transaction.
          However, the matter was taken away from [Gasior]
          by the head of Kennametal’s Legal Department
          (Cofer).

                On November 17, 1989, Kennametal’s branch
          in North Carolina and its German branch asked
          [Gasior] to collect on a letter of credit involving
          funds owed to Kennametal under Banca Nazionle de
          Lavoro and the Central Bank of Iraq. [Gasior] was
          unable to complete this task because of a lack of
          cooperation within the company.

                Shortly after being employed by Kennametal,
          [Gasior] was subject to physical as well as verbal
          sexual harassment by Cofer, [Gasior]’s superior in
          the Legal Department.

                Eventually, [Gasior] reported Cofer’s sexual
          harassment to [] Orwig, Vice President of Human
          Resources, on November 17, 1989. At meetings
          between December 20, 1989 and January 12, 1990,
          [] McKenna and Orwig assured [Gasior] that Cofer
          would stop this behavior and told her that her work
          performance was more than satisfactory. During a
          January 12, 1990 meeting with [] McKenna, [Gasior]
          voiced her objections to Kennametal’s proposed
          scheme to place an agent in the country of Iran.

                The next business day, January 15, 1990,
          Orwig, on behalf of Kennametal, asked [Gasior] for
          her resignation. She refused. Eventually, on March
          27, 1990, there was a settlement in which a
          payment was made to [Gasior] in exchange for her

                                  -2-
J-A07038-15


          signing a separation agreement waiving all rights
          and claims to sue Kennametal.

                 After March 27, 1990, [Gasior] continued to
          socialize with Ann Savis, Kennametal’s secretary to
          McKenna, McGeehan, and Orwig. On December 12,
          1990, [Gasior] had a social meeting with Ann Savis
          at which Barbara Henderson, an agent or employee
          of Kennametal, appeared.         To prevent any
          information from being exchanged at the social
          meeting, Ms. Henderson punched, shoved, and
          slammed [Gasior] into a car door and followed
          [Gasior].

                 On December 13, 1990, [Gasior] reported
          Kennametal’s continuing harassment to the U.S.
          Attorney’s Office. On December 14, 1990, [Gasior]
          contacted the State Police to report the December
          12, 1990 incident to Trooper Steven Lapasky.
          Unbeknowst to [Gasior], Kennametal on the same
          day called Trooper Lapasky to its headquarters
          where various employees including Orwig and
          Henderson falsely alleged that [Gasior] was
          harassing Ann Savis. The Trooper obtained an arrest
          warrant, charging [Gasior] with disorderly conduct
          and harassment from District Justice Mahady based
          on an affidavit which he executed. On December 16,
          1990, an article appeared in the [Bulletin] which
          falsely stated that [Gasior] has been arrested on
          December 12, 1990. On January 2, 1991, Trooper
          Lapasky withdrew the charges.

                On January 3, 1991, an article appeared in the
          [Bulletin] which falsely characterized [Gasior] as a
          Pittsburgh woman who would face charges of
          disorderly conduct and harassment.

                Since December 12, 1990, Kennametal,
          through Barbara Henderson, has constantly spread
          other lies and false statements concerning [Gasior].
          The lies include that [Gasior] had sexually harassed
          Ann Savis and that Ms. Henderson became involved
          to protect Ms. Savis.


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J-A07038-15


                  [Gasior]’s [a]mended [c]omplaint lists fifteen
            companies and organizations to which Kennametal
            made false and malicious statements regarding
            [Gasior] to prevent her from obtaining gainful
            employment.

                   On January 24, 1991, [Gasior] read an article
            referring to Kennametal’s involvement in illegal
            military sales to Iraq. She then recalled that during
            the course of her employment she had innocently
            stumbled upon information concerning letters of
            credit and military sales to Matrix Churchill, an Iraqi
            company. She immediately contacted the FBI and,
            later, the U.S. Customs Service. On August 1, 1991,
            [Gasior]     appeared    before    a    Congressional
            subcommittee where she testified as to her
            knowledge of Kennametal’s involvement in illegal
            military sales to Iraq.

                  Immediately thereafter, Kennametal engaged
            in a campaign to discredit, defame, malign, and
            destroy the professional reputation, integrity, and
            earning capacity of [Gasior] by falsely disseminating
            numerous      defamatory     statements,     including
            statements that her testimony before Congress was
            untrue. Kennametal publicly characterized [Gasior]
            as a vengeful former employee making false
            statements to harm her previous employer and
            stated that she was fired because she was sexually
            harassing a female employee.

                   Thereafter, the [Bulletin] published articles
            stating that [Gasior] had, in fact, verbally authorized
            the illegal military sales; that she had spent her life
            getting even since she left Kennametal; and that
            [Gasior] had narrowly avoided arrest in 1990 for
            allegedly harassing a female company secretary.
            Also, [Gasior] bases a libel claim on an article in the
            Trib stating that [Gasior] had spent her life since she
            left Kennametal getting even.

Trial Court Opinion, 7/1/14, at 2-4. The trial court summarized the relevant

procedural history of this case as follows.

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J-A07038-15


              On July 31, 1992, [Gasior] commenced this action by
              writ of summons. [Gasior] filed a complaint on
              September 16, 1992 and an amended complaint on
              January 29, 1993. In her complaint and amended
              complaint, [Gasior] named the following defendants:
              Kennametal, Inc., Quentin C. McKenna, Robert L.
              McGeehan, Richard J. Orwig, and David T. Cofer ….
              [Gasior] also filed suit against two newspapers – the
              [Bulletin and Tribune] – and against Michael Mahady,
              a District Justice in Latrobe, Pennsylvania.

                    A January 18, 1994 order of [the trial] court
              transferred this case to the Court of Common Pleas
              of Westmoreland County. On January 24, 1994,
              [Gasior] appealed the transfer of venue.           On
              December 22, 1995, the Superior Court reversed
              [the trial] court’s transfer of venue and ordered the
              record remanded to [the trial] court. [Gasior v.
              Kennametal, 674 A.2d 323 (Pa. Super. 1995)
              (unpublished memorandum).]

                    Apart from a substitution of appearance on
              July 28, 2004 and a withdrawal and entry of
              appearance on January 24, 2006, the docket
              remained inactive until Judge O’Brien of [the trial]
              court sua sponte, issued a Notice of Proposed
              Termination of Court Case on May 17, 2013. In
              response to the Notice, [Gasior] filed a Statement of
              Intention to Proceed on July 19, 2013.

                    Thereafter,   the   Kennametal    Defendants,
              [Bulletin and Tribune], and Mahady each filed
              [m]otions for [j]udgment of [n]on [p]ros and briefs
              seeking dismissal of the case due to inactivity.
              [Gasior] filed a response and brief in opposition to
              the motions.      The Kennametal Defendant and
              Mahady filed supplemental briefs.

Id. at 1-2.    On July 1, 2014, the trial court entered an order granting all

motions for judgments of non pros. On July 15, 2014, Gasior filed a petition

to open the judgment of non pros pursuant to Pennsylvania Rule of Civil


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J-A07038-15


Procedure 3051. On July 25, 2014, the trial court entered an order denying

Gasior’s Rule 3051 petition. On August 22, 2014, Gasior filed a timely notice

of appeal.1

        On appeal, Gasior raises one issue for our review.

                     Whether the trial court abused its discretion in
               denying [Gasior]’s [p]etition for [r]elief from
               [j]udgment of [n]on-[p]ros when her petition was
               timely filed, showed a meritorious cause of action,
               and presented compelling reasons for the delay:
               fear for her physical safety, numerous delays caused
               by a breakdown in the court system, and
               [Appellees]’ unclean hands[?]

Gasior’s Brief at 3.

        We begin by noting our well-settled standard of review. “A trial court’s

denial of a petition to open a judgment of non pros is reviewed using an

abuse     of   discretion    standard.”        Sullivan   v.   Belmont   Ctr.   for

Comprehensive Treatment, 848 A.2d 994, 995 (Pa. Super. 2004) (citation

omitted), appeal denied, 863 A.2d 1148 (Pa. 2004).

               [I]n order to remove a judgment of non pros, three
               elements must be met: (1) a petition to open must
               be promptly filed; (2) the delay must be reasonably
               explained; and (3) facts must be shown to exist
               which support a cause of action.



____________________________________________
1
  The trial court did not order Gasior to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). The trial court filed a Rule 1925(a) “order” on August
25, 2014, directing this Court to its opinion filed with its original July 1, 2014
order granting the motions for judgments of non pros.



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J-A07038-15


Jacobs v. Halloran, 710 A.2d 1098, 1101 n.4 (Pa. 1998). Our Supreme

Court has held that actual prejudice must be shown to receive a judgment of

non pros.2    Id. at 1103. In addition, our Supreme Court has emphasized

that “[a] party who seeks the equitable relief provided by the entry of a

judgment of non pros must do so with clean hands.” Id.

              The doctrine of unclean hands is … far more than a
              mere banalty. It is a self-imposed ordinance that
              closes the doors of a court of equity to one tainted
              with inequitableness or bad faith relative to the
              matter in which he seeks relief, however improper
              may have been the behavior of the defendant. That
              doctrine is rooted in the historical concept of court of
              equity as a vehicle for affirmatively enforcing the
              requirements of conscience and good faith …. Thus
              while “equity does not demand that its suitors shall
              have led blameless lives” … as to other matters, it
              does require that they shall have acted fairly and
              without fraud or deceit as to the controversy in issue
              ….

Id., quoting Shapiro v. Shapiro, 204 A.2d 266, 268 (Pa. 1964).           Our

Supreme Court has stated that unclean hands are an affirmative bar to the

entry of a judgment of non pros, even if the party suffered actual prejudice.

Id.




____________________________________________
2
  Appellees do not contest that Gasior’s Rule 3051 petition was timely and
that her complaint would support a cause of action.




                                           -7-
J-A07038-15


       Gasior essentially has four arguments on appeal.3 Specifically, Gasior

argues that she has shown a reasonable explanation for the delay, Appellees

came into the trial court with unclean hands, Appellees have not shown

actual prejudice, and the trial court was biased. Gasior’s Brief at 14, 15, 20,

25.    In her first issue, Gasior avers that the trial court erred when it

concluded that she has not shown a compelling reason for the delay in the

prosecution of her case between our memorandum remanding this case to

Allegheny County in December 1995 and 2014 when the motions for

judgments of non pros were originally filed by Appellees. Id. at 14. In her

second issue, Gasior argues that Appellees came into the trial court with

unclean hands.       Id. at 16-17.       As these issues are interrelated, we will

discuss them as one.

       We note that the courts of this Commonwealth have consistently

stated that it is the plaintiff’s burden to keep the case moving forward.

                           It is the policy of the unified judicial
                     system to bring each pending matter to a final
                     conclusion as promptly as possible consistently
                     with the character of the matter and the
                     resources of the system. Where a matter has
                     been inactive for an unreasonable period of
                     time, the tribunal, on its own motion, shall
                     enter an order terminating the matter.

              Pa.R.J.A.1901, Prompt Disposition of Matters;
              Termination of Inactive Cases (a) General
____________________________________________
3
  We will address Gasior’s arguments in a slightly different order than
presented in her brief for ease of disposition.



                                           -8-
J-A07038-15


           Policy. The plaintiff in a case has an affirmative
           duty to move its case forward.

                        The law is settled that it is the plaintiff,
                 not defendant, who bears the risk of not acting
                 within a reasonable time to move a case along.
                 If plaintiff’s counsel finds [herself] faced with
                 delays created by others, [she] must take
                 action to move the case forward, such as filing
                 praecipes for argument on undecided motions,
                 moving to compel [her] opponent to file a
                 certificate of readiness, or requesting a
                 conference with the judge, as provided by local
                 rule to have the case put on the trial list.

           Pilon [v. Bally Eng’g Structures, 645 A.2d 282,
           285 (Pa. Super. 1992), appeal denied, 652 A.2d
           1325 (Pa. 1994)] (citations and quotations omitted,
           brackets in original).

Indep. Tech. Servs. v. Campo’s Express, Inc., 812 A.2d 1238, 1240 (Pa.

Super. 2002).

     In this case, Gasior avers that she has shown due diligence in moving

the case forward based on the following.

                 [Gasior] has over the years made multiple trips
           to the Allegheny County Prothonotary to attempt to
           move the case forward but was met with missing
           and/or misplaced files and direction from the
           Honorable Judge McGowan’s staff that a “notice”
           would issue from the [trial c]ourt by mail, indicating
           to [Gasior] that there was nothing further she could
           do[.]




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J-A07038-15


Gasior’s Brief at 15.4 Gasior also argues that the case was delayed due to

Appellees’ outstanding preliminary objections from 1993, as well as “fears

for her physical safety[.]” Id. at 14, 17. In addition, Gasior lists several of

the same obstructions purportedly committed by Appellees in her brief

regarding their alleged unclean hands.

              a.     [Appellees’] failure to schedule hearings on
                     their own [p]reliminary [o]bjections for over
                     seventeen years;

              b.     [Appellees’] efforts to harass, defame, and
                     intimidate [Gasior] as a litigant and federal and
                     congressional witness in order to coerce her
                     into dropping her case;

              c.     [Appellees’] improper handling and possession
                     of the case record;

              d.     [Appellees’] deceptive non pros pleadings
                     omitting key procedural facts and withholding
                     key documents from the trial court;

              e.     [Appellees’] submission of an affidavit in
                     support of its [m]otion for [j]udgment [of]
                     [n]on [p]ros which knowingly and falsely
                     claimed that … Orwig was unavailable as a
____________________________________________
4
  To the extent Gasior attempts to incorporate by reference the “reasons set
forth in her [r]esponses and [b]riefs in [o]pposition to [Appellees]’ [m]otions
for [j]udgments of [n]on [p]ros, and … her testimony and legal argument
presented on March 28, 2014,” we do not consider such arguments.
Gasior’s Brief at 15.     Our rules require that an appellant’s brief be
developed with “discussion and citation of authorities[.]” Pa.R.A.P. 2119(a).
Our Supreme Court has expressly disapproved of the practice of arguing via
incorporation by reference, calling it “an unacceptable manner of appellate
advocacy for the proper presentation of a claim for relief.” Commonwealth
v. Briggs, 12 A.3d 291, 343 (Pa. 2011), cert. denied, Briggs v.
Pennsylvania, 132 S. Ct. 267 (2011).



                                          - 10 -
J-A07038-15


                   witness     when     Orwig’s     [s]eparation
                   [a]greement required his participation in this
                   litigation;

            f.     [Appellees’] involvement and participation in
                   the more than one[-]year delay in transmitting
                   the case record to the Superior Court in order
                   to cause the litigation to be delayed until after
                   the Republicans took over Congress in
                   November, which ended all congressional
                   investigations of Kennametal and caused
                   [Gasior] to lose her congressional attorneys
                   and federal protection.

Id. at 16-17.

      After careful review, we conclude Gasior is not entitled to relief. First,

Gasior has not provided any evidence or explanation as to these claims, or

why they excuse her failure to move this case forward for 18 years from

1995 onward.      Additionally, to the extent Gasior faults Appellees for not

scheduling argument on their outstanding 1993 preliminary objections, this

argument fares no better. This Court has held that it is a plaintiff’s duty to

move the case forward, even when the opposing party has not scheduled

argument on its own motions. See Indep. Tech. Servs., supra; accord

Hughes v. Fink, Fink & Assocs., 718 A.2d 316, 320-321 (Pa. Super.

1998); Pennridge Elec., Inc. v. Souderton Area Joint Sch. Auth., 615

A.2d 95, 99 (Pa. Super. 1992). Based on these considerations, we conclude

Gasior is not entitled to relief on her first two issues.

      In her next issue, Gasior argues that the trial court erred when it

concluded that Appellees have suffered actual prejudice under Jacobs.


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J-A07038-15


Specifically, Gasior argues the trial court made misstatements of fact

concerning the testimony of witnesses already contained within the record.

Gasior’s Brief at 20-25.

      Our Supreme Court has held that, in requiring a party seeking a

judgment of non pros, “defendants may be prejudiced by undue delays in

litigation-memories fade, witnesses disappear and documents become lost or

are destroyed.” Jacobs, supra at 1102. In addition, “prejudice could be

established by the death or absence of a material witness … [as well as] any

substantial diminution of a party’s ability to properly present its case at

trial.” Id. at 1103 (internal quotation marks and citations omitted).

      In this case, Appellees have pointed to several instances where they

have suffered prejudice due to Gasior’s delay in pursuing her claims.

Specifically, McKenna and Trooper Laposky have passed away during the

dormancy of the litigation below. Kennametal’s Brief at 23, 28. In addition,

several witnesses during their depositions stated that their memories had

faded over time although they noted they would have been able to recall

material facts and details had they been asked about the same years ago.

      For example, Jack Markowitz, the business editor for the Tribune

testified at his deposition that he had no recollection of any of the research

or work that went into several articles he authored about Kennametal in

1991 and 1992. N.T., 1/15/14, at 11-34. Judge Mahady also testified that

he had no independent recollection of the arrest warrant he issued for Gasior


                                    - 12 -
J-A07038-15


in 1990, his only recollection was based on documents showed to him during

his deposition. N.T., 1/16/14, at 8-17. Also, Kozar, who was the reporter

for the Bulletin who authored the articles Gasior claims were defamatory

towards her, testified at his deposition that he could not recall how he

investigated the story, fact-checked his story, the editing process, or the

sources thereof. N.T., 2/14/14, at 33-54. Although Gasior has pointed to

some witnesses’ recollections in the record, it does not alter our conclusion

that the death of one witness and one defendant, as well as the fading

memories of witnesses, have prejudiced Appellees’ ability to present a

defense. See Jacobs, supra. Based on these considerations, we conclude

Gasior is not entitled to relief on this issue.

       In her fourth issue, Gasior argues that the trial court and its officers

were biased against her in various ways. Gasior’s Brief at 25-27. However,

before we may review the merits of Gasior’s claim, we must first ascertain

whether Gasior has waived this issue.

       Generally, appellate briefs are required to conform to the Rules of

Appellate Procedure. See generally Pa.R.A.P. 2101. This Court is willing to

construe pro se materials liberally, but “pro se status confers no special

benefit on an appellant.”5 In re Ullman, 995 A.2d 1207, 1211-1212 (Pa.

Super. 2010) (citation omitted), appeal denied, 20 A.3d 489 (Pa. 2011).
____________________________________________
5
  Although Gasior filed her brief pro se, she was represented by counsel at
oral argument.



                                          - 13 -
J-A07038-15


Pennsylvania Rule of Appellate Procedure 2119(a) states that an appellant’s

“argument shall be divided into as many parts as there are questions to be

argued; and shall have at the head of each part--in distinctive type or in

type distinctively displayed--the particular point treated therein, followed by

such discussion and citation of authorities as are deemed pertinent.”

Pa.R.A.P. 2119(a).

                  The argument portion of an appellate brief
            must include a pertinent discussion of the particular
            point raised along with discussion and citation of
            pertinent authorities. This Court will not consider
            the merits of an argument which fails to cite relevant
            case or statutory authority. Failure to cite relevant
            legal authority constitutes waiver of the claim on
            appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (internal

quotation marks and citations omitted), appeal denied, 69 A.3d 603 (Pa.

2013).

      In this case, Gasior’s final issue alleges that the trial court was biased

when it “seal[ed] the case record without a proper court order, impound[ed]

the record in various judicial offices, and fail[ed] to properly enter certain

pleadings on the record[.]”    Gasior’s Brief at 26.   Gasior further contends

that “at least four Common Pleas judges had or have conflicts of interests

related to this case[.]” Id. Although Gasior has cited one case pertaining to

due diligence, she does not discuss or develop any argument with citations

to relevant legal authority as to why or how the trial court was biased

against her during the pendency of this case. Gasior does not cite to any of

                                    - 14 -
J-A07038-15


our cases involving trial court bias, or make any attempt to apply them to

this case.     Based on these considerations, we deem Gasior’s fourth issue

waived for want of development. See Whitley, supra.

      Based on the foregoing, we conclude all of Gasior’s issues are either

waived or devoid of merit. Accordingly, the trial court’s July 25, 2014 order

is affirmed.

      Order affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/20/2015




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