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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 IN RE: LIEN ASSERTED AGAINST MATTHEW HEFFRAN IN THE SUPERIOR COURT OF PENNSYLVANIA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 t o present clear and convincing evidence of fraud, or any of his additio nal 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 a ffirm. To prove fraud, Appellant was required to establish th e following elements:

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* Former Justice specially assigned to the Superior Court

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** Retired Senior Judge assigned to the Superior Court.J-A12023- 14

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(1) a representation; (2) which is material to the tra nsaction at hand; (3) made falsely, with knowledge of its falsit y or recklessness as to whether it is true or false; (4) with th e intent of misleading another into relying on it; (5) justif iable 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 f ailed to prove any of these elements. “The . . . burden of pr oof to prove [a] fraud claim is clear and convincing evidence. Clear and convincing evidence is t he highest burden in our civil law and requires that the fact-finder be able to come to cl ear conviction, without hesitancy, of the truth of the preci se fact in issue.” Id. (citation omitted, emphasis added). The learned Majority acknowledges that evidence of fra ud 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 w as not a certainty.” ( Id. at 7). In effect, by assuming that the possibility of a plaintiff’s verdict is dispositi ve, the Majority reduces Appellant’s burden of proof f rom 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 Appella nt’s failure to meet the well-settled clear-and-convincing standard for his burd en of proof.J-A12023- 14

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Furthermore, in my view, by not addressing the six el ements required to establish fraud, and relying instead on an incident al mistake of the trial court, ( see infra at *4 n.3), the learned Majority errs in disregardin g the burden of proof for the claim on which all of Appell ant’s additional claims are, in reality, predicated. Similarly, I can discern no error of law or abuse of d iscretion in the trial court’s directed verdict on Appellant’s remaining claims. As noted by the learned Majority, punitive damages are appropria te only in cases o f outrageous behavior where the defendant’s egregious con duct shows either an evil motive or reckless indifference to the rights o f others. Appellant’s denials notwithstanding, all of his claims, including t he punitive damages claim, rely on the same predicate, the purported attem pt to collect on the allegedly fraudulent miscalculation of the subrogatio n 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 car rier, out of the settlement he reached with the tortfeasor, for funds t he insurer had already advanced to him). There is no dispute that Appellant owed some amount to Appellee to satisfy the subrogation lien.J-A12023- 14

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The record is replete with instances of dilatory and unco operative behavior by Appellant’s counsel. It is readily inferab le 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 off ice 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 respon ses. What is missing from the record, not to mention Appell ant’s argument on appeal, is actual factual evidence of Appellee’s alle g ed egregious conduct, evil motive or reckless indifference. In my opinion, this deficit was not remedied by the si mple expedient of having a de facto expert witness, 1 who only reviewed the limited documentation 2 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 t hat he had no direct involvement in the underlying case. The tr ial court stresses that Attorney Haggerty was never formally qualified as an expert witness. ( See Trial Court Opinion, 9/12/13, at 6). The record conf irms that he was never formally offered, let alone accepted, as an expert wit ness.

2 E.g. , Appellant’s counsel did not provide Haggerty with hi s fee agreement, documenting the attorney’s fee to be deducted, a critica l component of the final calculation of the subrogation amount, and a pe rsistent issue in the litigation. ( See N.T. Trial, at 101).J-A12023- 14

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involvement in the case, Attorney Haggerty could not testify as a fact witness. The record confirms that Haggerty was never pro perly admitted as an expert. Attorney Haggerty’s personal opinions are no substitute for proof of facts. Leaving aside Haggerty’s personal opinions, there was n o 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 app endage of a blanket conclusion, without specific, pertinent analysis applying the principles of the cited cases to the case on appeal, is insufficient to dev elop an argument or

____________________________________________ 3 I agree with the learned Majority that the trial co urt incorrectly relied on Attorney Haggerty’s reference to one incident as a “mis take” for an overall conclusion. (Majority, at 6). This was a specific concession (used, in the event, to commend Appella nt’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 co urt 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 ben efit of the do ubt.” ( See N.T. Trial, at 101). To be sure, Attorney Haggerty took many other opportunities to condemn Appellee’s various alle ged actions, in his personal opinion, as “outrageous.” Nevertheless, Appellan t established no factual evidence of the fraud cla ims 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 con vincing 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).J-A12023- 14

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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 asserti on that “[i]t has been shown r epeatedly 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 w e 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 co nclude here that Appellant failed to present a case for the jury at tr ial, and failed to develop a pertinent argument on appeal. The trial court prope rly granted a directed verdict under our standard of review. Accordingly, I respectfully dissent. 4

____________________________________________ 4 For the sake of completeness, I note my disagreement w ith the learned Majority’s decision to treat all three of Appellant’s cl aims interchang eably (“concurrently”). (Majority, at 4). Each of Appellant’ s issues raises a distinct legal claim, namely, clear and convincing evi dence, sufficiency of evidence for the additional (non-fraud) claims, and w hether 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 b asis, it is not necessary to address them further.