J-S23017-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 APRIL PLOEGER                              :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                    Appellant               :
                                            :
                                            :
              v.                            :
                                            :
                                            :
 TRYP BY WYNDHAM                            :   No. 2600 EDA 2019

                Appeal from the Order Entered July 10, 2019
    In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 181103039


BEFORE: NICHOLS, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                            FILED JUNE 22, 2020

      April Ploeger (Appellant) appeals from the order entered in the

Philadelphia County Court of Common Pleas, sustaining preliminary objections

filed by Appellee Tryp by Wyndham (Tryp) and dismissing Appellant’s

complaint without prejudice. We conclude Appellant’s issues are waived for a

deficient brief and, accordingly, affirm.

      The trial court summarized the facts and procedural history as follows:

          On December 4, 2016, [Appellant] checked into Tryp by
      Wyndham Hotel . . . located at 345 West 35th Street, New York,
      NY 10001. [Appellant] claims jewelry and personal items in the
      amount of $50,000 were stolen from a safe in her hotel room.
      [Appellant] filed a complaint [in the Philadelphia County Court of
      Common Pleas] to recover damages. Tryp [ ] filed preliminary
      objections to the complaint which argued jurisdiction was not
      proper in Pennsylvania. On July 8, 2019, this court sustained
      Tryp[’s] Preliminary Objections[, finding Appellant failed to
      establish the court had general jurisdiction or specific jurisdiction
      over Tryp.]
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           [Appellant] filed a timely appeal from the court’s July 8, 2019
      order and timely complied with this court’s order to file a
      statement of errors complained of on appeal pursuant to Pa.R.A.P.
      1925(b).

Trial Ct. Op., 1/17/20, at 1 (unpaginated) (paragraph break added).

      Appellant presents one issue for our review:

      Did the trial [c]ourt commit reversible error in finding that it did
      not have in personam jurisdiction over the corporate [d]efendant,
      [Tryp]?

Appellant’s Brief at 1.

      The entirety of Appellant’s counseled brief, excluding the cover page and

certificate of service, spans two pages and two lines. The argument section

states, in sum:

           [Appellant’s] response to Tryp’s Fourth Amended Complaint
      [sic] asserted that . . . she was harmed by [Tryp’s] failure to take
      reasonable care of valuable jewelry placed by [Appellant] in a safe
      provided by Tryp and locked with key [sic] provided by Tryp. Tryp
      is a subsidiary of Wyndham. Wyndham continuously conducts
      business in this Commonwealth, thus vesting jurisdiction in this
      matter on courts of the Commonwealth, and in Philadelphia, thus
      causing venue to lie in the Courts of Philadelphia.

Appellant’s Brief at 2. The brief lacks discussion of, or even citation to, any

legal authority.

      Tryp points out that Appellant’s argument consists of “one lone

paragraph devoid of a single citation to the record or any case law,” and that

in any event, although Tryp “is a franchisee of Wyndham Worldwide Hotels . .

. each hotel is individually owned” and here, Tryp is owned by Eros




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Management and Realty LLC, a limited liability company incorporated in New

York.1 Tryp’s Brief at 6.

       In a five-page reply brief, Appellant argues that “[i]n addition to any

other bases for . . . jurisdiction,” the trial court could exercise personal

jurisdiction over Tryp under Subsection 5322(a)(4) of our Judicial Code:

           (a) General rule.—A tribunal of this Commonwealth may
       exercise personal jurisdiction over a person . . . who acts directly
       or by an agent, as to a cause of action or other matter arising
       from such person:

                                       *       *   *

               (4) Causing harm or tortious injury in                  this
            Commonwealth by an act or omission outside                 this
            Commonwealth.

Appellant’s Reply Brief at 1-2, quoting 42 Pa.C.S. § 5322(a)(4). Appellant

contends that, consistent with this subsection, the cause of harm occurred in

New York and “[i]ts effects continue, unabated, in Philadelphia.” Id. at 2.

Appellant then “copy/pasted” text from Tryp’s website as evidence of Tryp’s

contacts with Pennsylvania. Id. at 3.

       Pennsylvania Rule of Appellate Procedure 2111 requires an appellant’s

brief to contain a “[s]ummary of argument” section and an “[a]rgument”



____________________________________________


1 Tryp further notes it previously pleaded this ownership information. See
Tryp’s Brief at 6; Reply Brief of Defendant, Eros Management and Realty LLC,
(Incorrectly Designated as Tryp by Windham) in Support of their Preliminary
Objections, and in Opposition to Plaintiff’s Reply to Preliminary Objections
6/4/19, at 3.


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section, “separately and distinctly entitled.” Pa.R.A.P. 2111(a)(6), (8). “The

summary of argument shall be a concise, but accurate, summary of the

arguments presented in support of the issues in the statement of questions

involved.” Pa.R.A.P. 2118. “The 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). “If reference is made to the pleadings,

evidence, . . . opinion or order, or any other matter appearing in the record,

the argument must set forth, in immediate connection therewith, or in a

footnote thereto, a reference to the place in the record where the matter

referred to appears[.]” Pa.R.A.P. 2119(c).

      This Court has explained:

      Appellate arguments which fail to adhere to these rules may be
      considered waived, and arguments which are not appropriately
      developed are waived. Arguments not appropriately developed
      include those where the party has failed to cite any authority in
      support of a contention.

Lackner v. Glosser, 892 A.2d 21, 29–30 (Pa. Super. 2006) (citations

omitted). Thus, failure to cite authority in support of a claim results in waiver

of that argument, Giant Food Stores, LLC v. THF Silver Spring Dev., L.P.,

959 A.2d 438, 444 (Pa. Super. 2008), and it is axiomatic that this Court will

not develop arguments on behalf of an appellant. Bombar v. West Am. Ins.

Co., 932 A.2d 78, 93 (Pa. Super. 2007).


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      Here, Appellant’s brief does not contain a summary of the argument and

does not set forth references to the record.         See Pa.R.A.P 2111(a)(6),

2119(a).   Furthermore, her entire argument consists of three sentences,

including a conclusory statement that Tryp continuously conducts business in

Pennsylvania, thus vesting jurisdiction and venue in Philadelphia’s courts.

Appellant’s Brief at 2. Appellant’s only citation to authority is contained in her

reply brief, where she cites 42 Pa.C.S. § 5322. Appellant’s Reply Brief at 2.

Nevertheless, her sole discussion there is likewise vague as she baldly alleges

that while the cause of the harm occurred in New York, its effects still continue

in Philadelphia. Id. at 2. We emphasize Appellant fails to address, with any

discussion of authority, the trial court’s finding that she failed to establish

general or specific jurisdiction. See Trial Ct. Op. at 2-4. Because her brief

and argument are deficient, Appellant’s claim is waived.       See Giant Food

Stores, 959 A.2d at 444; Lackner, 892 A.2d at 29–30.

      Moreover, even if we were to reach the merits of Appellant’s issue, no

relief would be due.

      Our standard and scope of review over a trial court’s decision to
      sustain a litigant’s preliminary objections are well settled:

           . . . [W]e accept as true all well-pleaded material facts
           set forth in the . . . complaint and all reasonable
           inferences which may be drawn from those facts. . . .
           Where, as here, upholding sustained preliminary
           objections would result in the dismissal of an action, we
           may do so only in cases that are clear and free from
           doubt. To be clear and free from doubt that dismissal is
           appropriate, it must appear with certainty that the law
           would not permit recovery by the plaintiff upon the facts

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          averred. . . We review for merit and correctness—that is
          to say, for an abuse of discretion or an error of law. . . .

McCabe v. Marywood Univ., 166 A.3d 1257, 1261 (Pa. Super. 2017)

(citations omitted).

      Here, the trial court found Appellant failed to establish the court had

general jurisdiction over Tryp, where Appellant’s complaint is premised on a

claim that Tryp is a subsidiary of Wyndham Hotels, which does business in

Pennsylvania. Trial Ct. Op. at 2-3 (unpaginated), citing, inter alia, 42 Pa.C.S.

§ 5301(a)(2)(i)-(iii) (factors for general jurisdiction over corporations). The

court reasoned that Wyndham Hotels was not named as a party, and in any

event, Tryp has pleaded it is owned by Eros Management and Realty LLC,

which is likewise not a party to this suit. Id. Furthermore, the court found it

was undisputed that Tryp is not registered to do business in, nor provides any

services in, Pennsylvania; the alleged incident occurred in New York; and thus

there was insufficient “evidence of ‘systemic and continuous’ carrying on of

business within Pennsylvania.” Id. at 3 (unpaginated).

      The trial court also found Appellant failed to establish it had specific

jurisdiction over Tryp. Trial Ct. Op. at 3-4 (unpaginated), citing, inter alia,

Kenneth H. Oaks, Ltd. v. Josephson, 568 A.2d 215, 216 (Pa. Super. 1989)

(“A court may exercise in personam jurisdiction over a nonresident if (1)

jurisdiction is conferred by the state long-arm statute and (2) the exercise of

jurisdiction under the statute meets constitutional standards of due process.

Under Pennsylvania’s long-arm statute, the Pennsylvania courts may exercise

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jurisdiction over nonresident defendants ‘to the fullest extent allowed under

the Constitution of the United States’ and jurisdiction may be based ‘on the

most minimum      contact with    this     Commonwealth allowed under         the

Constitution of the United States.’”) (citations omitted).        The trial court

concluded Appellant “has not provided any specific evidence that . . . Tryp[ ]

conducted business in Pennsylvania so as to ‘purposefully avail’ [itself] of

conducting business in this state.”      Trial Ct. Op. at 4.   Appellant does not

refute any of the court’s discussion. See McCabe, 166 A.3d at 1261.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/22/20




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