J-A09043-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 SILK ALDERETTE AND KIXX                  :   IN THE SUPERIOR COURT OF
 ALDERETTE                                :        PENNSYLVANIA
                                          :
                    Appellants            :
                                          :
                                          :
              v.                          :
                                          :
                                          :   No. 1529 WDA 2017
 DOLLAR TREE, INC. AND DOLLAR             :
 TREE STORES, INC.                        :

                Appeal from the Order September 19, 2017
     In the Court of Common Pleas of Lawrence County Civil Division at
                         No(s): 10352 of 2016 CA

BEFORE: BOWES, J., DUBOW, J., and MURRAY, J.

MEMORANDUM BY MURRAY, J.:                              FILED MAY 15, 2018

      Silk and Kixx Alderette (Appellants) appeal pro se from the trial court’s

order granting summary judgment in favor of Appellees, Dollar Tree, Inc., and

Dollar Tree Stores, Inc. (Dollar Tree).

      In the spring of 2016, Appellants, represented by Angelo Papa, Esquire,

filed a complaint and amended complaint against Dollar Tree in which they

raised claims of negligence, premises liability, and negligent infliction of

emotional distress. The claims arose from an incident that occurred on June

9, 2014, when Appellants entered a Dollar Store and Appellant Silk Alderette

injured the middle finger of her left hand on the locking mechanism of the

door. The trial court recounted the factual and procedural history of this case

as follows:
J-A09043-18


            On June 9, 2014, the Plaintiffs, Silk Alderette and Kixx
     Alderette, and their son, Skylar Alderette, entered the Dollar Tree
     store located at 2567 West State Street, New Castle, Lawrence
     County, Pennsylvania. The Dollar Tree store is equipped with a set
     of exterior and interior metal double-doors to enter the store. The
     left side of the exterior doors was locked while ingress and egress
     to the store was provided through the right door. Kixx Alderette
     held the exterior door open while Skylar Alderette entered the
     store first followed by the Plaintiff, Silk Alderette. The left side of
     the interior double-doors was blocked by shopping carts of bargain
     items while the right interior door was being propped open. Skylar
     Alderette entered the interior doors first and moved to the side
     upon noticing another individual approaching the doorway in an
     attempt to exit the store. The other individual stood to the side to
     allow Plaintiff and her son to walk through the door before exiting.
     Plaintiff walked through the interior door after her son. While
     walking through the doorway, Plaintiff struck her left hand on the
     locked left interior door and her middle finger became lodged
     within a rectangular hole used for the locking system. Unaware
     that her finger was lodged in the door, Plaintiff continued to walk
     into the store, but was jerked backwards.

           Plaintiff and her husband dislodged Plaintiff’s finger, but she
     suffered two large lacerations as a result. She was subsequently
     taken to Jameson Memorial Hospital where she was diagnosed
     with two deep lacerations and a severe sprain. Plaintiff also avers
     she injured her shoulder during the incident, was examined by an
     orthopedic surgeon, Dr. Robert McGann, and she was diagnosed
     with bicipital tendonitis.

             Plaintiff initiated this action by filing a Praecipe for Writ of
     Summons on April 8, 2016, and filed a complaint on May 11, 2016,
     asserting claims for negligence, premises liability and negligent
     infliction of emotional distress. [Dollar Tree] responded by filing
     Preliminary Objections and [Appellants] filed a First Amended
     Complaint on June 1, 2016. [Dollar Tree] issued Preliminary
     objections to [A First Amended complaint and, after oral
     argument, the Court sustained [Dollar Tree’s] preliminary
     objection concerning the legal insufficiency of [Appellants’] claim
     for negligent infliction of emotional distress and that count was
     stricken from the Amended Complaint. Appellants were granted
     leave to file a Second Amended Complaint alleging negligent
     infliction of emotional distress within 20 days, but Appellants failed
     to do so.

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            On June 28, 2017, [Dollar Tree] filed a Motion for Summary
      Judgment asserting they [we]re entitled to judgment as a matter
      of law as [Appellants] failed to present evidence to demonstrate
      [Dollar Tree] breached a duty of care concerning the doors and
      locking mechanisms at issue.

Trial Court Opinion, 9/19/17, at 1-3.

      The trial court heard oral argument on Dollar Tree’s motion for summary

judgment on August 28, 2017. Attorney Papa sent Mark Neff, Esquire on his

behalf to argue against summary judgment.          On August 29, 2017, Silk

Alderette wrote the trial court a letter expressing her dissatisfaction with Mr.

Neff. On August 30, 2017, the trial court entered the following order:

             AND NOW, this 30th day of August, 2017, in consideration
      of the attached correspondence of the Plaintiff, Silk Alderette, pro
      se, and to ensure that every consideration is given to the
      argument of the parties, the Plaintiffs are given ten (10) days to
      present to the Court through counsel any additional argument, in
      writing, related to the law or testimony or declarations located in
      Plaintiffs’ evidentiary materials that are of record. The Defendant
      shall have ten (10) days from the date or receipt of any written
      memorandums submitted on behalf of the Plaintiffs to submit a
      written reply thereto. Any material submitted to the Court shall
      be submitted by counsel for the parties and not by any party pro
      se.

Order, 8/30/17.

      On September 7, 2017, Attorney Papa filed a “Second Brief in Opposition

to Defendant’s Motion for Summary Judgment.” Dollar Tree, on September

15, 2017, filed a “Reply to Plaintiffs’ Second Brief in Opposition to Summary

Judgment.” On September 19, 2017, the trial court entered an order and

opinion granting summary judgment in favor of Dollar Tree.



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       On September 27, 2017, Silk Alderette wrote two letters to the trial

court indicating her desire to file for reconsideration and appeal; Ms. Alderette

also referenced her emergency treatment and surgery for a kidney stone, as

well as “saving my case for other legal counsel.” The next day, on September

28, 2017, the trial court ordered:

              AND NOW, this 28th day of September, 2017, the Court
       being in receipt of the attached pro se correspondence of the
       Plaintiff, it is ORDERED and DECREED that the same shall be filed
       of record.

Order, 9/28/17.

       On October 30, 2017, after apparently receiving the second letter from

Ms. Alderette dated September 27, 2017, the trial court ordered:

              AND NOW, this 30th day of September, 2017, the Court
       being in receipt of the attached pro se correspondence of the
       Plaintiff, it is ORDERED and DECREED that the same shall be filed
       of record.

Order, 9/30/17.

       During the same timeframe, Attorney Papa filed a petition to withdraw

as counsel.1 The trial court granted the petition by order dated September

29, 2017 and filed on October 2, 2017. On October 13, 2017, Appellants,

acting pro se, filed a motion for reconsideration, in which they conceded the

untimeliness of the petition, and explained that it was due to “complications

of the plaintiffs which plaintiffs did give notice to this court.”   Motion for


____________________________________________


1Attorney Papa’s petition to withdraw contains a certificate of service dated
September 28, 2017; the docket indicates that it was filed on October 2, 2017.

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Reconsideration, 10/13/17, at 2. On October 18, 2017, the trial court entered

an order denying Appellants’ motion for reconsideration.       A day prior, on

October 17, 2017, Appellants filed their timely appeal. The trial court directed

compliance with Pa.R.A.P. 1925, and on November 22, 2017, entered an order

in which it stated that “the Opinion and Order from which the appeal is taken

satisfies the requirements of Pa.R.A.P. 1925(a) and the record is otherwise

complete for purposes of appeal.”

      Appellants present four issues for our review:

      1. The Trial Court erred and/or abused its discretion when it did
         not “take in consideration” and/or “act upon” [Appellants’]
         complaint    of    “incompetence”,     “abandonment”      and
         “contemptuous misconduct” by their attorney of record, when
         brought to the court’s attention?

      2. The Trial Court erred and abused its discretion due to the
         court’s bias against [Appellants] new “pro se” status causing
         [Appellants] “constitutional” and “substantive” rights to be
         violated?

      3. The Trial Court erred and or abused its discretion by applying
         the wrong case law, omitting other relevant case law and did
         not rule on the “weight of the evidence” provided by
         [Appellants]?

      4. The Trial Court erred and/or abused its discretion when it did
         not take into consideration Plaintiff Silk’s medical obesity as a
         handicap since the U.S. EEOC now claims obesity is a disability
         under the Americans with Disabilities Act Amendments Act
         (ADAAA).


Appellants’ Brief at 6 (italics in original).




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      Before we address Appellants’ issues, we address Dollar Tree’s motion

to quash this appeal, in which they argue that this Court should dismiss the

appeal because Appellants have failed to comply with Pennsylvania Rules of

Appellate Procedure 2186 (service and filing of reproduced record) and 2188

(consequence of failure to file reproduced records). See Dollar Tree Brief at

5. Dollar Tree states that Appellants “have failed to file a reproduced record”

and “cite to no specific portions of any record.” Id. They explain:

             [Appellants] have attached to their brief, a mish mash of
      various documents, some of which were filed of record with the
      trial court, while others were not matters of record but apparently,
      [Appellants] are attempting to make them matters of record here.

             Without a formal reproduced record, [Dollar Tree is]
      prejudiced so severely, that they find it nearly impossible to
      author a coherent brief. Many of the filings made by [Appellants]
      at the trial court were made merely to file something and the
      filings have no relevance or context.

Id. at 5-6.

      This Court has stated that the failure to file a reproduced record is an

“abject” failure to comply with the Pennsylvania Rules of Appellate Procedure

and warrants dismissal of an appeal. McGee v. Muldowney, 750 A.2d 912,

913 n.1 (Pa. Super. 2000); see In re Crespo, 738 A.2d 1010, 1013 n.2 (Pa.

Super. 1999) (“Compliance with the Pennsylvania Rules of Appellate

Procedure [ ] regarding the contents of reproduced records on appeal is

mandatory.”). Moreover, we cannot accord special relief to Appellants merely

because of their pro se status. As stated in Commonwealth v. Rivera, 685

A.2d 1011 (Pa. Super. 1996):

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      While this court is willing to liberally construe materials filed by a
      pro se litigant, we note that appellant is not entitled to any
      particular advantage because she lacks legal training. As our
      supreme court has explained, any layperson choosing to represent
      [herself] in a legal proceeding must, to some reasonable extent,
      assume the risk that [her] lack of expertise and legal training will
      prove [her] undoing.

Id. at 1013, quoting O'Neill v. Checker Motors Corp., 567 A.2d 680, 682

(Pa. Super. 1989).

      Instantly, although we could quash or dismiss this appeal pursuant to

Pennsylvania Rule of Appellate Procedure 2101, we exercise our discretion and

decline to so.

      In their first and second issues, Appellants assert trial court error on the

basis that the trial court did not “take in consideration” and/or “act upon”

Appellants’ complaint of “incompetence”, “abandonment” and “contemptuous

misconduct” by their attorney of record; and exhibited bias against Appellants’

“new pro se” status. These issues are meritless.

      The argument portion of Appellant’s brief presents an all-encompassing

but scattershot approach to issues relating to counsel’s representation and

Appellants’ subsequent and very brief period of acting pro se before the trial

court. The sum effect is nonsensical. See Smathers v. Smathers, 670 A.2d

1159 (Pa. Super. 1996) (a pro se appellant’s brief precluded meaningful

review where the brief contained no organized and developed arguments, and

even a liberal construction of the brief based on appellant’s pro se status did

not remedy the brief’s inadequacies). We further note that Appellants were


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represented by counsel throughout almost all of the underlying litigation,

including the entry of the summary judgment order from which they appeal.

As accurately noted by Dollar Tree, this appeal “is solely and strictly based on

the granting of [Dollar Tree’s] motion for summary judgment.” Dollar Tree

Brief at 7. If Appellants “are of the belief that they did not receive proper

representation by their former attorney, then those issues can be addressed

in another manner, forum or proceeding.”2 Id. at 7-8 (noting the deposition

testimony of Silk Alderette that she has a law degree from British American

University). For these reasons, we find no merit to Appellants’ first two issues.

       Next, in their third and fourth issues, Appellants address the summary

judgment order from which they appeal. They argue that the trial court erred

by applying the wrong case law and failing to consider Silk Alderette’s various

health conditions, including obesity as a handicap under the Americans with

Disabilities Act Amendments Act.           Appellant’s Brief at 43-51.   Again, we

conclude that Appellants’ issues lack merit.

       Motions for summary judgment necessarily and directly implicate
       the plaintiff’s proof of the elements of his cause of action. Thus, a
       record that supports summary judgment will either (1) show the
       material facts are undisputed or (2) contain insufficient evidence
       of facts to make out a prima facie cause of action or defense and,
       therefore, there is no issue to be submitted to the fact-finder.
       Upon appellate review, we are not bound by the trial court's
       conclusions of law, but may reach our own conclusions. The


____________________________________________


2At oral argument, we advised Appellants that issues they have with counsel
are not properly before this Court on appeal and there are other avenues by
which Appellants may seek recourse.

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J-A09043-18


      appellate court may disturb the trial court’s order only upon an
      error of law or an abuse of discretion.

Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1084–85 (Pa. Super.

2016), appeal denied, 141 A.3d 481 (Pa. 2016) (citation omitted).

      After a thorough review of the record and the well-reasoned opinion of

the Honorable Dominick Motto, we conclude that the trial court opinion

correctly discusses and properly disposes of Appellants’ third and fourth issues

relating to the entry of summary judgment on their claims of negligence,

premises liability, and negligent infliction of emotional distress. Accordingly,

we adopt the trial court’s analysis as our own on the issue of summary

judgment and affirm on the basis of the trial court’s opinion. See Trial Court

Opinion, 9/19/17, at 3-14 (finding that Appellants failed to present evidence

to demonstrate that Dollar Tree breached a duty of care).

      Dollar Tree motion to quash denied.        Order affirmed.    Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/15/2018




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