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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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



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*
    Former Justice specially assigned to the Superior Court.
**
     Retired Senior Judge assigned to the Superior Court.
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       (1) a representation; (2) which is material to the transaction at
       hand; (3) made falsely, with knowledge of its falsity or
       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.

                                 oof to prove [a] fraud claim is clear and

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

conviction, without hesitancy, of the truth of the precise fact                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




(Id.

dispositi                                                                    -and-

convincing evidence to a mere hypothetical uncertainty.




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

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

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.


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           The record is replete with instances of dilatory and uncooperative




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




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

subrogation lien), engendered aggressive strategic responses.



                                                                    ed egregious conduct,

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


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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.
                                                                    of the
final calculation of the subrogation amount, and a persistent issue in the
litigation. (See N.T. Trial, at 101).




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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.                            personal opinions are no substitute for proof

of facts.

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

to the jury.3

        Moreover, I would conclude that all of

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
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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
event, to commend Appella
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
                                                   Op., at 5). Furthermore, for
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
do        See N.T. Trial, at 101). To be sure, Attorney Haggerty took many


factual evidence of the fraud cla
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).




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

see also

has been shown r                                    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
                                                                    eably

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
none of the separate issues merit relief on any other basis, it is not
necessary to address them further.



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