Opinion
J-A17004-16 No. 1566 EDA 2015
08-10-2016
US BANK NATIONAL ASSOCIATION, AS TRUSTEE OF JP MORTGAGE TRUST 2006-A5, Appellee v. MARYANNE APPLEGATE, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order May 1, 2015 in the Court of Common Pleas of Bucks County
Civil Division at No.: 2011-04207 BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Maryanne Applegate, appeals pro se from the order granting summary judgment in favor of Appellee, US Bank National Association, as Trustee of JP Mortgage Trust 2006-A5, in this mortgage foreclosure action. Appellant has also filed a pro se Petition to Include Written Oral Argument Summary en [sic] Lieu of Receipt of the Designated Standard Argument at Session (Petition). We affirm on the basis of the trial court opinion and deny Appellant's Petition as moot.
In its opinion, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. ( See Trial Court Opinion, 8/19/15, at 1-4). Therefore, we have no reason to restate them.
Appellant raises the following four questions for our review:
I. Did the [trial c]ourt commit a reversible error of law by granting a motion for summary judgment when several material issues of fact remain disputed in the record, such as whether or not Appellee has standing to initiate the instant litigation and whether or not Appellee violated TILA and RESPA in issuing the loan?(Appellant's Brief, at 5-6).
II. Did the [trial c]ourt commit a reversible error of law when it dismissed Appellant's counterclaims, and denied Appellant's preliminary objections to Appellee's complaint and reply to new matter?
III. Did the [trial c]ourt commit a reversible error of law when it accepted and considered Appellee's numerous unverified court filings over Appellant's repeated objections?
IV. [ ] Did the [trial c]ourt commit a reversible error of law when it failed to construe Appellant's Pro Se pleadings liberally, as required by Pa.R.C.P. 126?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, we conclude that there is no merit to the issues Appellant has raised on appeal. The trial court opinion properly disposes of the questions presented. ( See Trial Court Opinion, 8/19/15, at 7-15) (concluding: (1) there are no material issues of disputed fact in this matter; (2) the originating bank's assignment of mortgage was proper and valid; (3) the trial court properly struck Appellant's counterclaims and denied (overruled) Appellant's preliminary objections; and (4) while this Court is willing to construe liberally materials filed by a pro se litigant, pro se status does not entitle a litigant to any particular advantage). See also Branch Banking & Trust v. Gesiorski , 904 A.2d 939 (Pa. Super. 2006):
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. As our supreme court has explained, any layperson choosing to represent [herself] in a legal proceeding must, to some reasonable extent, assume the risk that [her] lack of expertise and legal training will prove [her] undoing.
Id. at 942-43 (some citations omitted).
[ Commonwealth v. Rivera , 685 A.2d 1011, 1012 (Pa. Super. 1996)] (quoting O'Neill v. Checker Motors Corp., [ ] 567 A.2d 680, 682 ([Pa. Super.] 1989)). The Rivera court concluded that "we decline to become the appellant's counsel. 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."
We note in particular that Appellant incorrectly assumes that Pennsylvania Rule of Civil Procedure 126 required the trial court to construe her pro se pleadings in a light most favorable to her. ( See Appellant's Brief, at 41-42). Appellant's reliance on Rule 126 is misplaced. First, the rule applies to all litigants, not only those who proceed pro se. In any event, the principle of liberal construction embodied in Pa.R.C.P. 126 does not entitle Appellant — or any other litigant — to review in the light most favorable to her claims.
We add for clarity and completeness that Appellant's third claim ("numerous unverified court filings") does not merit reversal of summary judgment or any other relief. (Appellant's Brief, at 5). Appellant's blanket claim that Appellee's pleadings were "rife with unverified documents" is too vague to enable meaningful review. ( Id. at 40). It is not the function of this Court to scour the record to find evidence to support a litigant's claims. See J.J. DeLuca Co. v. Toll Naval Associates , 56 A.3d 402, 411 (Pa. Super. 2012). In any event, Appellee supplied a verification in support of its answer to Appellant's preliminary objections. ( See Verification of William Bellows, filed 6/25/13). We find that Appellant has waived her third claim.
In view of our disposition is it is unnecessary for us to review the numerous other defects and errors in Appellant's argument, and we expressly decline to do so.
Finally, as previously noted, Appellant has petitioned this Court for permission to present a "written oral argument summary" [sic] for our consideration. (Petition, 7/06/16, at 1). Appellant maintains that she was "mistakenly" assigned to the expedited argument list and deprived of the fifteen minutes of standard argument time she had anticipated and for which she had prepared. ( Id.). She asks this Court to review and consider her petition as a written version of the full oral argument she would have made had she not been deprived of the opportunity, in supplementation of the expedited argument she already made. ( See id. at 1-7). Appellant's claim is moot and would not merit relief.
Preliminarily, we note that Appellant's factual claim is not supported by the evidence of record. As conceded by Appellant, her case was listed for standard, not expedited, argument. ( See Petition, at 1). While the presiding judge has the prerogative to move an argument to the expedited list, that did not happen here.
Notably, Appellant made no claim to the panel at the time of argument that she had been mistakenly assigned to the expedited argument list, and did not request any other special relief. In fact, there would have been no point in doing so, because court records confirm that she received the full amount of time allotted for standard argument. Therefore, her petition is moot.
We observe that many litigants, especially those unfamiliar with appellate procedure, and particularly pro se appellants, wish in hindsight that they had received more time to argue, or regret omitting arguments they wish they had made. However, the natural regrets of hindsight do not constitute a valid ground for extraordinary legal relief.
Moreover, it would not merit relief.
[O]ral argument is not a matter of right. This Court, in its discretion, may direct that any case brought before it be removed from an argued list and considered on the submitted briefs. We may also curtail the time allocated for oral argument in our sole discretion.
In support, we cite to Pennsylvania Rule of Appellate Procedure 2315, which provides in relevant part as follows:
Rule 2315. Time for Argument; Argument Lists
(a) General rule. Oral argument is not a matter of right and will be permitted only to the extent necessary to enable the appellate court to acquire an understanding of the issues presented. The presiding judge may terminate the argument for any party notwithstanding the fact that the maximum time for argument specified in the applicable provision of these rules has not been exhausted.
Pa.R.A.P. 2315(a) (emphasis added [in original]).
Coulter v. Ramsden , 94 A.3d 1080, 1090 (Pa. Super. 2014), appeal denied, 110 A.3d 998 (Pa. 2014) (first emphasis added; one citation and internal quotation marks omitted).
We repeat that oral argument is only necessary to enable [this Court] to acquire an understanding of the issues.
Accordingly, even if this Court had reduced Appellant's argument time, which we repeat for clarity and emphasis that it did not, the claim would be virtually unreviewable, short of clear and convincing proof of a palpable abuse of discretion.
Moreover, Appellant fails to develop a proper claim for reargument. Reargument in the appellate courts is governed by Pennsylvania Rules of Appellate Procedure 2541-2547. Rule 2543 provides that reargument will be allowed only when there are compelling reasons. "Reargument before an appellate court is not a matter of right, but of sound judicial discretion, and reargument will be allowed only when there are compelling reasons therefor." Pa.R.A.P. 2543. The rule does not define "compelling," but the Official Note to the rule lists four examples of reasons that might be considered compelling. ( See Pa.R.A.P. 2543 Note).
The following, while neither controlling nor fully measuring the discretion of the court, indicate the character of the reasons which will be considered:
(1) Where the decision is by a panel of the court and it appears that the decision may be inconsistent with a decision of a different panel of the same court on the same subject.Pa.R.A.P. 2543, Note.
(2) Where the court has overlooked or misapprehended a fact of record material to the outcome of the case.
(3) Where the court has overlooked or misapprehended (as by misquotation of text or misstatement of result) a controlling or directly relevant authority.
(4) Where a controlling or directly relevant authority relied upon by the court has been expressly reversed, modified, overruled or otherwise materially affected during the pendency of the matter sub judice, and no notice thereof was given to the court pursuant to Rule 2501(b) (change in status of authorities).
Here, Appellant's petition falls far short of the quality and character of the compelling reasons required for reargument. To the contrary, Appellant's petition more closely resembles a request for a "second bite of the apple," that is, an unauthorized opportunity to repeat claims and arguments already made, beyond the rules of appellate procedure. See , e.g., Pa. Tpk. Comm'n v. Murphy , 25 A.3d 1294, 1298 (Pa. Commw. Ct. 2011) (denying Turnpike Commission's application to supplement record as seeking proverbial second bite of the apple).
See also Pa.R.A.P. 2315 Note, which in pertinent part advises that: "The maximum time is intended as a limit for complex cases, and counsel should prepare for argument on the assumption that less than the maximum time for argument may be allowed by the presiding judge." (emphases added).
This Court is not bound by decisions of the Commonwealth Court, but they may provide persuasive authority. See Md. Cas. Co. v. Odyssey Contracting Corp., 894 A.2d 750, 756 n.2 (Pa. Super. 2006), appeal denied, 909 A.2d 1290 (Pa. 2006), cert. denied, 549 U.S. 1305 (2007).
Accordingly, we will affirm on the basis of the trial court's opinion.
Order affirmed. Petition denied as moot. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/10/2016
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