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NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37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: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or ____________________________________________

* Retired Senior Judge assigned to the Superior Court.

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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.

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 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 disagree on the

(Id. -and- convincing evidence to a mere hypothetical uncertainty.

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

Furthermore, in my view, by not addressing the six elements required -2- J-A12023-14

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 behavior

well as his apparent delay in reporting the settlement with the tortfeasor , but to a remote office in Kentucky), not to

(making it impossible to calculate an exact amount for repayment of the subrogation lien), engendered aggressive strategic responses.

What

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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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.

E.g. documentin 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. of facts. issue of material fact, which would require that any of the claims at issue go to the jury.3

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 ____________________________________________

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 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 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 See N.T. Trial, at 101). To be sure, Attorney Haggerty took many

factual evidence of the fraud claims at issu 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 Appe -15); see also 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

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For the sake of completeness, I note my disagreement with the learned

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

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