J-A26002-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

HELEN B. LERNER, M.D. 

Appellant

v.

FIFTEEN HUNDRED LOCUST LP, 

BOZZUTO CORPORATION AND 

SERVPRO OF SOCIETY HILL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3016 EDA 2022

Appeal from the Order Entered October 28, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 190702926

HELEN B. LERNER, M.D. 

Appellant

v.

FIFTEEN HUNDRED LOCUST LP, 

BOZZUTO CORPORATION AND 

SERVPRO OF SOCIETY HILL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3017 EDA 2022

Appeal from the Order Entered October 28, 2022

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 190702926

BEFORE: DUBOW, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY DUBOW, J.: FILED MARCH 1, 2024

In these cross-appeals, Helen B. Lerner, M.D. (“Dr. Lerner”), pro se, and 

Fifteen Hundred Locust L.P. (“Landlord”) appeal from the October 28, 2022 

order entered in the Philadelphia County Court of Common Pleas reversing the 

jury verdict against defendant Bozzuto Corporation (“Management Company”)
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and ordering a new trial on damages against Landlord. After careful review, 

we affirm. 

The facts and procedural history relevant to this appeal are as follows. 

Landlord owns the apartment building at 1500 Locust Street and had retained 

Management Company to manage the building. Landlord and Dr. Lerner had 

entered into a Lease for one of the apartments (“Lease”). Management 

Company was not a party to the Lease. 

On July 30, 2017, a toilet supply line burst, causing a flood in Dr. 

Lerner’s apartment. Landlord and the Management Company (collectively 

referred to as “Appellees”) attempted to remediate the damage to Dr. Lerner’s 

apartment, but Dr. Lerner refused to cooperate.

Preliminary Injunction Action

On August 7, 2017, Appellees filed a complaint in equity seeking 

emergency injunctive relief alleging that Dr. Lerner was obstructing their 

efforts to remediate the flood. The trial court held a hearing the next day, at 

which Appellees elicited testimony that Dr. Lerner had excess possessions and 

a cockroach infestation in her apartment and that she had obstructed their 

remediation efforts. Appellees’ witnesses also testified that Dr. Lerner was 

aggressive and hostile towards them and the employees of Servpro of Society 

Hill (“Servpro”), a remediation company that Dr. Lerner had hired to document 

the flood damage to her personal property. The witnesses also testified that 

Dr. Lerner would not allow Servpro to remove her possessions from the 
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apartment. Dr. Lerner, through counsel, cross-examined Appellees’ witnesses 

at the hearing and presented evidence.

At the conclusion of the hearing, the trial court issued a preliminary 

injunction, requiring Dr. Lerner to remove herself and her possessions from 

the apartment by the next day, August 9, 2017. The court’s order stated: 

“This [o]rder shall remain in effect until the [apartment] has been properly 

remediated and rendered suitable for occupation, at which point this [o]rder 

shall be rescinded.” Order, 8/8/17. The trial court specifically noted on the 

record that it had found Appellees’ witnesses credible. N.T. Hr’g, 8/8/17, at 

62. Dr. Lerner did not appeal this order. On August 10, 2017, Appellees filed 

a praecipe notifying the trial court that this action had been settled, 

discontinued, and ended.

The Instant Action

Almost two years later, on July 24, 2019, Dr. Lerner filed a complaint 

against Appellees for, inter alia, breach of contract and abuse of process. She 

alleged that they had breached her lease by engaging in inadequate attempts 

to remediate the flood damage and by filing an improper motion to remove 

her from the property based on false claims that she had obstructed their 

remediation efforts. She claimed that, as a result, she suffered damage to 

and loss of her personal property and unlawful displacement. On August 19, 

2019, Lerner amended her complaint to add Servpro as a defendant.

Appellees and Servpro filed preliminary objections, which the court 

sustained. On February 24, 2020, Dr. Lerner filed a second amended 
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complaint, asserting 45 counts against Appellees and Servpro. Appellees and 

Servpro responded by again filing preliminary objections. Dr. Lerner did not 

file a response to the preliminary objections.

On May 21, 2020, the trial court sustained Servpro’s preliminary 

objections and dismissed Dr. Lerner’s claims against Servpro with prejudice.1 

The court entered a separate order sustaining Appellees’ preliminary 

objections and dismissing all counts against them with prejudice except for

the count that alleged that Appellees breached the Lease.

On May 31, 2022, a jury trial commenced on Lerner’s breach of the 

Lease claim against Appellees. Relevant to the instant appeal, during her 

opening statement, Dr. Lerner presented a PowerPoint presentation that 

exhibited those provision of the Lease that she alleged that Landlord and 

Management Company had breached. 

Dr. Lerner also testified about various provisions of the Lease that 

Appellees had allegedly breached and again provided the jury with a 

PowerPoint presentation that included the provisions of the Lease on which 

Dr. Lerner based her complaint.

2

 With respect to damages, Dr. Lerner 

____________________________________________

1 The court dismissed Dr. Lerner’s claims against Servpro with prejudice for 

failure to comply with Pa.R.Civ.P. 1019 and its mandate of conciseness. See 

Pa.R.Civ.P. 1019(a) (“The material facts on which a cause of action or defense 

is based shall be stated in a concise and summary form.”). Dr. Lerner has not 

appealed this order.

2 These included provisions pertaining to “Responsibilities of Owner” and 

“Move-Out Notice,” and “Move-Out Procedures.” Lease, 3/16/17, at ¶¶ 33, 

39, 40. 
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presented evidence of the value of each damaged or lost item and presented 

the jury with exhibits, again via a PowerPoint presentation, that showed the 

items. She also testified to her move-out costs, storage facility costs, inability 

to obtain future housing, rent payments and security deposit that were not 

refunded. 

Dr. Lerner also presented two other witnesses—Landlord’s former 

property manager, Michael Lerario, and its general manager and corporate 

representative, David McMurtrie—who provided testimony pertaining to, and 

acknowledging the existence of, the Lease between Dr. Lerner and Landlord. 

See, e.g., N.T. Trial, 6/6/22, 117-118 (where McMurtrie identified a document 

as “our lease” between “Helen Lerner [and] 1500 Locust, LP.”).

McMurtrie also acknowledged the existence of the Lease when he

testified that it was Dr. Lerner, and not the Landlord, who breached the Lease 

by obstructing Appellees’ remediation efforts. At the close of Dr. Lerner’s 

case, however, Appellees moved for compulsory nonsuit arguing that Dr. 

Lerner had failed to establish the existence of an enforceable lease between 

the parties. The trial court denied Appellees’ motion. 

On June 7, 2022, the jury returned a $175,000 verdict in Dr. Lerner’s 

favor and apportioned 40% of liability to Landlord and 60% to the

Management Company, i.e., $70,000 and $105,000, respectively. 

Dr. Lerner and Appellees filed post-trial motions. Appellees’ post-trial 

motion sought, inter alia, judgment notwithstanding the verdict in favor of

Management Company, arguing that the jury erred as a matter of law in 
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finding Management Company liable when Management Company was not a 

party to the Lease and, therefore, could not have breached it. 

Following oral argument, on October 28, 2022, the trial court entered 

an order reversing the judgment against Management Company and 

dismissing Dr. Lerner’s complaint against it, finding that Management 

Company was not a party to the Lease. Since the jury verdict reflected a 

damage award against both Landlord and Management Company, the trial 

court ordered a new trial on damages against Landlord. 

These cross-appeals followed. Dr. Lerner and Landlord each filed 

1925(b) statements and in response, the trial court issued a 1925(a) opinion. 

A.

Landlord’s Appeal

Landlord raises the following three issues on appeal:

1. Whether the trial court erred in finding that [] Lerner carried 

her burden to establish the existence of a contract at trial[?]

2. Whether the trial court erred by ordering a new trial on 

damages when the jury already apportioned damages between 

[Landlord and Management Company?]

3. Whether the trial court erred by permitting [] Lerner at trial to 

collaterally attack the credibility determinations and legal 

conclusions of the Prior Action, 1500 Locust, LP v. Helen 

Lerner, case no. 17080023[?]

Landlord’s Brief at 26.

I.

In its first issue, Landlord asserts that the trial court erred in denying 

its motion for compulsory nonsuit and its post-trial motion because Dr. Lerner 
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failed to prove at trial the existence of the Lease between Landlord and Dr. 

Lerner.3 Id. at 30. Landlord claims that Dr. Lerner never presented a full and 

complete copy of the Lease as part of her case in chief; rather she referred 

only to “cut-out portions of specific paragraphs flashed on the screen as part 

of her PowerPoint [presentation] without establishing any context or the 

fundamental existence of the Lease Contract from which these paragraphs 

were purportedly excised.” Id. Landlord further claims that Dr. Lerner never 

authenticated the Lease, demonstrated that the parties had signed it, 

established the consideration given for it, or entered it into evidence. Id. 

Landlord avers that because Dr. Lerner failed to establish the existence of a 

contract between the parties, she could not prove that Landlord breached it. 

Thus, Landlord concludes that this Court should vacate the jury’s verdict in 

Dr. Lerner’s favor. Id. at 34.

Three elements are necessary to establish a cause of action for breach 

of contract: (1) the existence of a contract, including its essential terms; (2) 

a breach of the contract; and (3) resultant damages. 412 N. Front St. 

Associates, LP v. Spector Gadon & Rosen, P.C., 151 A.3d 646, 657 (Pa. 

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3 A compulsory nonsuit is proper only “where it is clear that a cause of action 

has not been established[.]” Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa. 

Super. 2004) (citation omitted); McMillan v. Mountain Laurel Racing, Inc., 

367 A.2d 1106, 1111 (Pa. Super. 1976). “The plaintiff must be given the 

benefit of all favorable evidence along with all reasonable inferences of fact 

arising from that evidence. Any conflict in the evidence must be resolved in 

favor of the plaintiff.” Coatesville Contractors & Eng’rs, Inc. v. Borough 

of Ridley Park, 506 A.2d 862, 865 (Pa. 1986) (citation omitted); McMillan, 

367 A.2d at 1111.
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Super. 2016). Such a showing must be made by a preponderance of the 

evidence. Snyder v. Gravell, 666 A.2d 341, 343 (Pa. Super. 1995).

We agree with the analysis of the trial judge that Dr. Lerner presented 

sufficient evidence, albeit barely, to establish the existence of the Lease and 

the relevant provisions. The Honorable Michael E. Erdos has authored a 

comprehensive, thorough, and well-reasoned opinion which identifies the 

evidence that establishes the existence of the Lease and the relevant 

provisions. See Trial Ct. Op. at 38-42. Since we agree with Judge Erdos’ 

conclusion that Dr. Lerner presented sufficient evidence on this issue, we 

adopt as our own the portion of Judge Erdos’ opinion that sets forth the 

evidence of the Lease and the relevant provisions. Landlord is, thus not 

entitled to relief on its claim that the trial court erred in denying its motion for 

compulsory nonsuit and its post-trial motion.

II.

In its second issue, Landlord avers that the trial court erred in vacating 

the jury’s damages award and ordering a new trial on damages. Landlord’s 

Brief at 34-46. Landlord claims that, after the court belatedly dismissed 

Management Company from the case, the trial court erred in not molding the 

verdict to $70,000 to reflect the jury’s assessment of damages against 

Landlord. Id. at 34-35, 46. Landlord further argues that after the dismissal

of the Management Company, two of the jury’s “clearly manifested intentions” 

remained—that Landlord had breached the Lease and that Landlord was 

responsible for 40% of the $175,000 damages suffered by Dr. Lerner. Id at 
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35. It asserts that the trial court did not offer a legally sufficient explanation 

for its decision to disregard the “clearly expressed intent of the jury” that 

Landlord was only responsible for 40% of Dr. Lerner’s damages. Id. at 40. 

The decision to order a new trial is within the trial court’s discretion and 

we review such an order for an abuse of that discretion. Mazzie v. Lehigh 

Valley Hospital-Muhlenberg, 257 A.3d 80, 89 (Pa. Super. 2021). “An 

abuse of discretion exists when the trial court has rendered a judgment that 

is manifestly unreasonable, arbitrary, or capricious, has failed to apply the 

law, or was motivated by partiality, prejudice, bias, or ill will.” Mader v. 

Duquesne Light Co., 241 A.3d 600, 607 (Pa. 2020). “In determining 

whether the trial court abused its discretion in awarding a new trial, we must 

examine the underlying mistake and whether the reasons offered by the trial 

court in ordering a new trial based on this mistake constituted an abuse of 

discretion.” Mazzie, 257 A.3d at 91.

In addition, we are mindful that a trial court may order a new trial limited 

to the issues of damages when: “(1) the issue of damages is not intertwined 

with the issue of liability; and (2) where the issue of liability has been fairly 

determined or is free from doubt.” Mader, 241 A.3d at 614.

Here, the trial court explained that it erred as a matter of law when it 

misapplied the rules of contract law and denied Appellees’ motion for summary 

judgment to dismiss the Management Company as a defendant. Trial Ct. Op. 

at 37. The trial court noted that as a result of this error, the case erroneously 

proceeded to the jury against both Landlord and the Management Company, 
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even though the Management Company was not a party to the Lease and 

thus, the Lease imposed no legal liability on the Management Company. 

Consequently, the jury’s determination that the Management Company 

breached the Lease was legally indefensible. Id. 

Moreover, and critically, the trial court highlighted that this error directly 

impacted the jury’s verdict because the trial court instructed the jury to 

apportion liability between Landlord and the Management Company, an 

instruction that lacked any legal foundation. Id.

Following our review of the record, we agree with the trial court’s 

coherent analysis and discern no abuse of discretion in the court ordering a 

new trial on damages. As an initial matter, the issue of damages is separate 

and distinct from the issue of liability, so we find no error in the trial court’s 

refusal to grant a new trial on both liability and damages and only order a new 

trial on damages.

Additionally, we reject the Landlord’s argument that the trial court erred 

in not molding verdict and reducing the damages award by the amount that 

jury imposed on the Management Company. Rather, in light of the fact that 

the jury determined that the Management Company breached the Lease and 

awarded damages based on that legally insufficient determination as well as 

the incorrect jury instruction, the portion of the jury verdict about damages is 

fatally flawed. Landlord’s claim that the trial court erred in ordering a new 

trial on damages, thus, fails.
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III.

In its final issue, Landlord asserts, that if this Court affirms the trial 

court’s decision to order a new trial, the trial should address both liability and 

damages, claiming that the trial court erred in not applying the principles of 

collateral estoppel and in permitting Dr. Lerner to challenge the credibility of 

certain witnesses whom the trial court in the Preliminary Injunction hearing

had found credible. Landlord’s Brief at 46-58. Landlord argues that because 

no party appealed the preliminary injunction and the plaintiffs in that case 

discontinued the action, the credibility determinations were “sufficiently firm 

and procedurally definite to warrant preclusive effect.” Id. at 51-53. It 

further argues that the trial court erred in permitting Dr. Lerner to offer 

testimony that contested and contradicted testimony from, among others,

David McMurtrie and Michael Lerario. Id. at 55. 

Before we address the merits of this collateral estoppel claim, we 

consider whether Landlord has preserved it. In its Brief to this Court, Landlord

has failed to indicate where in the record it preserved this issue for our review. 

Instead, Landlord has provided more than twenty citations to the Notes of 

Testimony referencing the testimony that it argues is precluded by the 

doctrine of collateral estoppel. Id. at 55-57. However, our review of each of 

these citations indicates that Landlord lodged objections in only seven of those 

instances and in none of those instances did Landlord assert that the 
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testimony was improper on collateral estoppel grounds.4 In the remaining

instances, Landlord failed to raise any objection at all. Landlord has, thus, 

waived this issue by not raising it before the trial court. See Jones v. Ott, 

191 A.3d 782, 787 (Pa. 2018) (“In order to preserve an issue for appellate 

review, a litigant must place a timely, specific objection on the record.”).

B.

Dr. Lerner’s Issues on Appeal

Dr. Lerner purports to raise 43 issues on appeal. Before we address the 

merits of the claims raised by Dr. Lerner, however, we consider whether she 

has preserved them for our review. 

Pa.R.A.P. 1925(b)(4)(ii) requires an appellant to “concisely identify 

each error that [she] intends to assert with sufficient detail to identify the 

issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). 

“Issues not . . . raised in accordance with the provisions of this paragraph . . 

. are waived.” Id. at 1925(b)(4)(vii). See also In re Estate of Daubert, 

757 A.2d 962, 963 (Pa. Super. 2000) (“[w]hen an appellant fails adequately 

to identify in a concise manner the issues sought to be pursued on appeal, the 

trial court is impeded in its preparation of a legal analysis which is pertinent 

to those issues.”); see also Tucker v. R.M. Tours, 939 A.2d 343, 346-47 

(Pa. Super. 2007) (determining that a Rule 1925(b) statement that “consisted 

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4 See N.T. Trial, 6/2/22, at 120, 151; N.T. Trial, 6/3/22, at 22-23, 103, 151-

153; N.T. Trial, 6/6/22, at 5, 30.
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of sixteen pages, with seventy-six paragraph statements, plus exhibits” was 

sufficiently vexatious to support a ruling that all issues were waived).

In its Rule 1925(a) opinion, the trial court observed that Lerner’s 118-

page Rule 1925(b) statement was “anything but concise.” Trial Ct. Op. at 18. 

The court characterized it as “verbose, disorganized, and at times border[ing]

on incomprehensible.” Id. The court, therefore, found that Dr. Lerner had 

waived all issues raised in her Rule 1925(b) statement. We agree.

Similarly, Dr. Lerner’s appellate brief contains substantial defects that 

preclude us from being able to meaningfully provide appellate review. Her 

99-page pro se brief, in which, as noted above, she has raised 43 separate 

allegations of trial court error is similarly verbose and makes inaccurate and 

incomprehensible legal arguments and, thus, fails to comply with our Rules of 

Appellate Procedure. Notably, for example, the argument section of her brief, 

which begins with enumerated paragraph 88 and continues through paragraph 

311, is not “divided into as many parts as there are questions to be argued” 

as required by Pa.R.A.P. 2119(a), and is disjointedly interspersed with 

statements of law, pertaining to irrelevant topics such as abuse of process, 

gross negligence, and temporary restraining orders, which are not issues in 

this breach of contract action. 

“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.” Branch Banking and Trust v. Gesiorski, 

904 A.2d 939, 942 (Pa. Super. 2006) (citation omitted). “As our [S]upreme 
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[C]ourt has explained, any layperson choosing to represent [himself] in a legal 

proceeding must, to some reasonable extent, assume the risk that [his] lack 

of expertise and legal training will prove [his] undoing.” Id. (citation omitted).

Simply, Dr. Lerner’s failure to comply with our briefing requirements has

precluded our ability to conduct meaningful appellate review. Thus, we 

dismiss her appeal. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. 

Super. 2007) (“[W]hen defects in a brief impede our ability to conduct 

meaningful appellate review, we may dismiss the appeal entirely or find 

certain issues to be waived.”); Branch Banking and Trust, 904 A.2d at 942-

43 (citation omitted) (“When issues are not properly raised and developed in 

briefs, when the briefs are wholly inadequate to present specific issues for 

review[,] a Court will not consider the merits thereof.”); Pa.R.A.P. 2101 

(explaining that substantial briefing defects may result in dismissal of appeal).

C.

In sum, we affirm the trial court’s order reversing the jury verdict 

against the Management Company and ordering a new trial on damages 

against Landlord. We dismiss Dr. Lerner’s appeal.5

Appeal filed at Docket No. 3016 EDA 2022 is dismissed. Order appealed 

at Docket No. 3017 EDA 20223 is affirmed. Jurisdiction relinquished.

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5 We deny Dr. Lerner’s February 2, 2024 Motion to Request to File 

Supplemental Brief.
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Date: 3/1/2024
Circulated 02/09/2024 10:39 AM