Lerner, H. v. Fifteen Hundred Locust

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

HELEN B. LERNER, M.D. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : FIFTEEN HUNDRED LOCUST LP, : No. 3016 EDA 2022 BOZZUTO CORPORATION AND : SERVPRO OF SOCIETY HILL :

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. : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : FIFTEEN HUNDRED LOCUST LP, : No. 3017 EDA 2022 BOZZUTO CORPORATION AND : SERVPRO OF SOCIETY HILL :

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. ____________________________________________ 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 ____________________________________________ 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. ____________________________________________

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

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Date: 3/1/2024

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