J-A12023-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

IN RE: LIEN ASSERTED AGAINST 

MATTHEW HEFFRAN 

IN THE SUPERIOR COURT OF 

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: 

____________________________________________ 

*

 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. 

“The . . . burden of proof 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 in issue.” 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 

remains at issue, it concludes that “reasonable minds could disagree on the 

outcome of the case and that a verdict for Appellee was not a certainty.” 

(Id. at 7). In effect, by assuming that the possibility of a plaintiff’s verdict is 

dispositive, the Majority reduces Appellant’s burden of proof from clear-andconvincing evidence to a mere hypothetical uncertainty. 

The Majority’s conclusion thus disregards both our standard of review, 

(for abuse of discretion or error of law), and Appellant’s failure to meet the 

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 

burden of proof for the claim on which all of Appellant’s additional claims 

are, in reality, predicated. 

Similarly, I can discern no error of law or abuse of discretion in the 

trial court’s directed verdict on Appellant’s remaining claims. As noted by 

the learned Majority, punitive damages are appropriate only in cases of 

outrageous behavior where the defendant’s egregious conduct shows either 

an evil motive or reckless indifference to the rights of others. Appellant’s 

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 by Appellant’s counsel. It is readily inferable from the record that 

counsel’s dismissive and patronizing communications to carrier’s counsel, as 

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

(reported not to carrier’s counsel, but to a remote office in Kentucky), not to 

mention his apparent refusal to disclose his attorney’s fee and costs, 

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

subrogation lien), engendered aggressive strategic responses. 

What is missing from the record, not to mention Appellant’s argument 

on appeal, is actual factual evidence of Appellee’s alleged 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 

repeatedly that Appellee’s conduct was outrageous. With no personal 

____________________________________________ 

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., Appellant’s counsel did not provide Haggerty with his fee agreement, 

documenting the attorney’s fee to be deducted, a critical component 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. Attorney Haggerty’s personal opinions are no substitute for proof 

of facts. Leaving aside Haggerty’s personal opinions, there was no genuine 

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 Appellant’s claims on appeal are 

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 

____________________________________________ 

3

 I agree with the learned Majority that the trial court incorrectly relied on 

Attorney Haggerty’s reference to one incident as a “mistake” for an overall 

conclusion. (Majority, at 6). This was a specific concession (used, in the 

event, to commend Appellant’s counsel for his professional restraint in not 

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 

by the limiting words, “at least part.” (Trial Ct. 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 times, which he characterized as giving Appellee “the benefit of the 

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

other opportunities to condemn Appellee’s various alleged actions, in his 

personal opinion, as “outrageous.” Nevertheless, Appellant established no 

factual evidence of the fraud claims at issue. Despite the trial court’s 

apparent over-reliance on Attorney Haggerty’s limited concession, the 

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 Appellant’s Brief, at 13-15); 

see also Pa.R.A.P. 2119(a), (b). Similarly, a conclusory assertion that “[i]t 

has been shown repeatedly in the record,” (see Appellant’s Brief, at 15), 

fails to comply with Pa.R.A.P. 2119(c), Reference to record. “We shall not 

develop an argument for [the appellant], nor shall we scour the record to 

find evidence to support an argument; consequently, we deem this issue 

waived.” 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 

Majority’s decision to treat all three of Appellant’s claims interchangeably 

(“concurrently”). (Majority, at 4). Each of Appellant’s issues raises a 

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 Appellant’s Brief, at 5). However, as 

none of the separate issues merit relief on any other basis, it is not 

necessary to address them further.