J-A12030-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

RONALD ANDREW KESSELRING,                 : IN THE SUPERIOR COURT OF
                                          :      PENNSYLVANIA
                    Appellant             :
                                          :
              v.                          :
                                          :
PAMELA J. HARLOW A/K/A          PAMELA J. :
MORRIS, DAVID MORRIS,           AND RENT :
FOR LESS,                                 :
                                          :
                    Appellees             : No. 1639 MDA 2014

               Appeal from the Order entered September 5, 2014,
                    Court of Common Pleas, Adams County,
                         Civil Division at No. 07-S-1547

BEFORE: BOWES, DONOHUE and ALLEN, JJ.

MEMORANDUM BY DONOHUE, J.:                               FILED JUNE 10, 2015

      Ronald Andrew Kesselring (“Kesselring”) appeals from the order of

court granting the motion for summary judgment filed by Pamela Morris,

David Morris and Rent for Less (collectively “Appellees”). We affirm.

      The trial court succinctly summarized the facts underlying this appeal

as follows:

                      The pathetic factual history in this litigation
              finds its genesis in the deterioration of a romantic
              relationship between [Kesselring] and his former
              girlfriend, [Pamela Morris].        The parties were
              involved in an on-and-off relationship between 2002
              and approximately July 12, 2007, when Pamela
              Morris moved out of Kesselring’s residence.
              Following the parties’ separation, [Kesselring] alleges
              a history of juvenile acts including various vandalism
              [sic] to Kesselring’s property; threatening and
              assaultive behavior; and the public display of signs
              and circulation of fliers containing unflattering and
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           degrading comments toward Kesselring, similar to
           comments one may normally associate with grade
           school behavior.       Based upon these allegations,
           Kesselring [] filed suit against Pamela Morris her
           husband David Morris, and the company partly
           owned and operated by David Morris, Rent for Less.
           In his [c]omplaint, Kesselring includes causes of
           actions based upon trespass to chattels, defamation,
           false light, assault, conspiracy, and intentional
           infliction of emotional distress. The [Appellees] …
           move[d] for summary judgment generally claiming
           that Kesselring is unable to provide competent proof
           as to the elements necessary to support any of the
           causes of action. [Appellees] also claim[ed] [that]
           the causes of action for trespass, conspiracy, and
           intentional infliction of emotional distress are barred
           by the doctrine of res judicata due to a previous
           litigation involving the same parties and the same
           factual history which was resolved in [their] favor.

Trial Court Opinion, 9/8/14, at 1-2 (footnote omitted).       The trial court

granted summary judgment in Appellees’ favor as to all claims raised by

Kesselring. This timely appeal follows.

     Kesselring challenges the trial court’s ruling in five respects.     He

presents these issues as follows:

           Whether the trial court abused its discretion in
           granting summary judgment in its entirety in favor
           of [Appellees], as there remained several issues of
           material fact, which make a grant of summary
           judgment improper.

              a. Whether [Kesselring] presented sufficient
              evidence to preclude the grant of summary
              judgment as to Count 1 [t]respass to
              [c]hattels?

              b. Whether [Kesselring] presented sufficient
              evidence to preclude the grant of summary



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                judgment as to Counts 2 and 3, [d]efamation
                and [f]alse [l]ight?

                c. Whether [Kesselring] presented sufficient
                evidence to preclude the grant of summary
                judgment as to Count 4 [a]ssault?

                d. Whether [Kesselring] presented sufficient
                evidence to preclude the grant of summary
                judgment as to Count 5 [c]onspiracy?

                e. Whether [Kesselring] presented sufficient
                evidence to preclude the grant of summary
                judgment as to Count 6 [i]ntentional
                [i]nfliction of [e]motional [d]istress?

Kesselring’s Brief at 6.

      To begin, Kesselring did not challenge the trial court’s determination

with regard to his claim for assault in his Pa.R.A.P. 1925(b) statement of

matters complained of on appeal or amended statement of matters

complained of on appeal.       As such, it is waived.        See Lazarski v.

Archdiocese of Philadelphia, 926 A.2d 459, 463 (Pa. Super. 2007)

(providing that an issue not raised in a statement filed pursuant to Pa.R.A.P.

1925(b)    is   deemed     waived    for   purposes    of   appeal);   Pa.R.A.P.

1925(b)(4)(vii).

      Furthermore,    Kesselring    has    provided   woefully   underdeveloped

arguments for his first, second and fourth issues.          The arguments he

presents for each are limited to one paragraph. Kesselring does not set forth




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the elements of any of these claims nor provide citation to, much less

discussion of, relevant authority and how it relates to the facts of his case. 1

            The Rules of Appellate Procedure state unequivocally
            that each question an appellant raises is to be
            supported by discussion and analysis of pertinent
            authority. See Pa.R.A.P. 2119(b); Estate of
            Lakatosh, [] 656 A.2d 1378, 1381 ([Pa. Super.]
            1995) (concluding that appellant had waived issue
            raised on appeal as corresponding argument in brief
            included only general statements without appropriate
            citation to authority). Without a reasoned discussion
            of the law against which to adjudge [an appellant’s]
            claims, our ability to provide appellate review is
            hampered.

Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002). We

have long recognized that “[t]his Court will not act as counsel and will not

develop arguments on behalf of an appellant.” Bombar v. West American

Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007).         Accordingly, we find these

issues waived. McGinley, 799 A.2d at 161.

      We turn to the remaining claim: that the trial court erred in granting

summary judgment with regard to Kesselring’s intentional infliction of

emotional distress claim. We consider this claim cognizant that


1
   Kesselring’s “arguments” for his first and second issues contain no case
citations. See Kesselring’s Brief at 17-18. We recognize that with regard to
his fourth issue, Kesselring cites two cases: one for the generic premise that
a conspiracy may be proved by direct or circumstantial evidence, and
another for the proposition that credibility determinations are matters for the
finder of fact. Id. at 20. He provides no relevant discussion of these
principles, stating only that “because the nature of this count can be proven
by circumstantial evidence, summary judgment was improper … because
there still remained a genuine issue of material fact that is a determination
for the trier of fact.” Id. This is not argument, it is a conclusion.


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           an appellate court may reverse the entry of a
           summary judgment only where it finds that the lower
           court erred in concluding that the matter presented
           no genuine issue as to any material fact and that it is
           clear that the moving party was entitled to a
           judgment as a matter of law.           In making this
           assessment, we view the record in the light most
           favorable to the non-moving party, and all doubts as
           to the existence of a genuine issue of material fact
           must be resolved against the moving party. As our
           inquiry involves solely questions of law, our review is
           de novo.

Payne v. Commonwealth Dep’t of Corr., 871 A.2d 795, 800 (Pa. 2005)

(citations omitted). Pennsylvania Rule of Civil Procedure 1035.2 governs

motions for summary judgment and provides as follows:

           After the relevant pleadings are closed, but within
           such time as not to unreasonably delay trial, any
           party may move for summary judgment in whole or
           in part as a matter of law

              (1) whenever there is no genuine issue of any
              material fact as to a necessary element of the
              cause of action or defense which could be
              established by additional discovery or expert
              report, or

              (2) if, after the completion of discovery
              relevant to the motion, including the
              production of expert reports, an adverse party
              who will bear the burden of proof at trial has
              failed to produce evidence of facts essential to
              the cause of action or defense which in a jury
              trial would require the issues to be submitted
              to a jury.

Pa.R.C.P. 1035.2.




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      “In order to sustain a claim for intentional infliction of emotional

distress, the plaintiff must demonstrate that by extreme and outrageous

conduct, the defendant intentionally or recklessly caused the plaintiff severe

emotional distress.” Kryeski v. Schott Glass Technologies, Inc., 626

A.2d 595, 600 (Pa. Super. 1993). The law in this Commonwealth requires

the plaintiff to establish the existence of the alleged emotional distress with

competent medical evidence:

            It is basic to tort law that an injury is an element to
            be proven. Given the advanced state of medical
            science, it is unwise and unnecessary to permit
            recovery … without expert medical confirmation that
            the plaintiff actually suffered the claimed distress.
            Moreover, the requirement of some objective proof
            of severe emotional distress will not present an
            unsurmountable obstacle to recovery. Those truly
            damaged should have little difficulty in procuring
            reliable testimony as to the nature and extent of
            their injuries. We therefore conclude that …
            existence of the alleged emotional distress must be
            supported by competent medical evidence.

Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 995 (Pa. 1987).

The requirement of expert medical evidence serves to “support claims of

emotional distress, both as to the fact of the distress itself and as to the

causation element[.]”    Wecht v. PG Pub. Co., 725 A.2d 788, 791 (Pa.

Super. 1999).

      Presently, the trial court found that Kesselring failed to produce the

requisite medical evidence to support his claim of intentional infliction of

severe emotional distress. Trial Court Opinion, 9/8/14, at 8-9. Kesselring



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disagrees.   He argues that his treating physician, Dr. David Zickafoose,

would testify at trial and points to a note that he produced from Dr.

Zickafoose. Kesselring’s Brief at 20. We have reviewed the letter to which

Kesselring refers.   It provides only that Kesselring began taking Paxil for

anxiety and depression in 2000; stopped taking it in 2006; and began to

take a different medication for stress and depression in April 2011.

Appellees’ Motion for Summary Judgment, 7/24/14, at Exhibit C.         In his

letter, Dr. Zickafoose does not opine that Kesselring’s anxiety and

depression were related to Appellees’ alleged actions.     Furthermore, it is

notable that the events that form the basis for Kesselring’s intentional

inflection of emotional distress claim occurred in 2007 and 2008, see

Amended Complaint, 4/6/10, at 2-8, a period of time during which

Kesselring was not taking medication for anxiety or depression, and

according to Kesselring’s medical expert, he did not resume taking this

medication until approximately three years after these events occurred.

Kesselring has failed to produce evidence to establish that Appellees’ alleged

conduct caused his alleged emotional distress, and therefore failed to

produce evidence of facts essential to the cause of action.         As such,

summary judgment on this count was proper pursuant to Pa.R.C.P.

1035.2(2).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/10/2015




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