Opinion
J-A30010-18 No. 45 WDA 2018
04-15-2019
DR. ROGER STEWART Appellant v. DR. GREGORY NICOSIA INDIVIDUALLY; AND DR. GREGORY NICOSIA PARTNER TRADING AS ADVANCED DIAGNOSTICS; AND ADVANCED DIAGNOSTICS, INC.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered December 5, 2017
In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-01-013980, GD-01-014628 BEFORE: SHOGAN, J., KUNSELMAN, J., and STRASSBURGER, J. MEMORANDUM BY SHOGAN, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Dr. Roger Stewart, appeals from the judgment entered December 5, 2017, in the Court of Common Pleas of Allegheny County. After careful review, we affirm.
This complex litigation has a lengthy procedural history. This case stems from disagreements regarding a chiropractic business involving two former friends. Appellant is a licensed chiropractor. Dr. Gregory Nicosia ("Nicosia") is a psychologist without a chiropractic license. The two formed a business wherein Appellant provided chiropractic treatments to the public and supervised staff, while Nicosia managed the money for the business. On July 17, 2001, Appellant sued Nicosia at docket number GD-01-013980 (Equity) for: 1) a declaration of partnership between the two men as to the chiropractic business; 2) an accounting of the financial activity of the chiropractic business on a year-by-year basis; and 3) a receiver for chiropractic assets.
On July 24, 2001, Appellant sued Nicosia at docket number GD-01-014628 (Law) for 1) breach of contract; 2) fraud; 3) unjust enrichment; 4) conversion of chiropractic property; 5) violations of Pennsylvania's Wage Payment Law; and 6) piercing of the corporate veil. On May 28, 2002, Appellant filed an amended complaint at law, containing the same six causes of action. On July 3, 2002, Nicosia filed an answer to Appellant's amended complaint, and also filed a counterclaim, alleging that Appellant owed him money.
On March 3, 2003, Appellant filed an amended complaint in equity and on March 6, 2003, Appellant filed his second amended complaint in equity, which contained the same causes of action. On March 10, 2003, Appellant's causes of action in equity and at law were consolidated for trial.
On July 1, 2003, Allegheny County Court of Common Pleas Judge Livingstone M. Johnson stated that he would divide the actions into three trial phases: Phase One, Appellant's declaratory action for a partnership; Phase Two, Appellant's accounting action; and Phase Three, the causes of action at law and Nicosia's counterclaim. On September 25, 2003, Appellant filed an amended complaint at law and added a cause of action for breach of partnership fiduciary duties. Nicosia answered the complaint and denied the averments.
From September of 2003 through March of 2005, Judge Johnson conducted trial of Phase One and concluded that a partnership existed between the parties, in agreement with Appellant's position, and entered an order accordingly on September 14, 2005. The parties filed post-trial motions. Nicosia filed an appeal that was quashed as interlocutory by this Court on March 20, 2008. Stewart v. Nicosia , 946 A.2d 1103 (Pa. Super. 2008).
Judge Johnson's September 14, 2005 order also set forth the matter that would be covered by Phase Two: the accounting. Phase Three was expected to handle the claims at law set forth at docket number GD 01-14628.
In July of 2008, Judge Christine A. Ward was appointed to handle the consolidated matters. An accountant was appointed to perform the accounting of the chiropractic business (Phase Two), pursuant to paragraphs seven, eight, and nine of Judge Johnson's September 14, 2005 order.
In January of 2016, the consolidated cases were assigned to Judge Judith L. A. Friedman. Because the court-appointed accountant was not able to finalize the accounting, the trial court took over the accounting and conducted a trial of Phase Two without appointing a different master. Trial Court Opinion, 6/9/17, at 3. Judge Friedman conducted a trial on Phase Two in May of 2017, and on June 9, 2017, entered an accounting in favor of Nicosia and against Appellant for $35,640.33. Id. at 15. Judge Friedman believed that her factual findings during Phase Two left nothing to be tried in Phase Three, and in her June 9, 2017 memorandum, she indicated that she would enter an order cancelling Phase Three of the trial. Id. at 3. On June 27, 2017, the court entered an order reflecting same. Appellant filed several post-trial motions on July 7, 2017, and on the same date, Nicosia filed various motions, including a motion to dismiss the remaining claims as moot.
On August 7, 2017, Judge Friedman entered a judgment against Appellant in the amount of $119,019.16. By order and memorandum entered October 25, 2017, the trial court granted Nicosia's motion to dismiss Appellant's causes of action at law (Phase Three) because Appellant failed to present "any valid basis for his contention that the above-listed counts at law are still viable." Trial Court Opinion, 10/25/17, at 4. The court also struck the judgment for $119,019.16, as being prematurely entered. Id. at 4.
This judgment included $35,640.33, the amount determined to be owed to Nicosia through the accounting. Trial Court Opinion, 6/9/17, at 15. It also included pretrial and post-trial interest on the $35,640.33, in the amount of $38,758.86. Further included were the fees paid to Mr. Ickert, the court-appointed accountant, by Nicosia in the amount of $44,619.97. Trial Court Opinion, 8/7/17, at 5.
On December 5, 2017, Judge Friedman dismissed the litigants' post-trial motions and entered judgment against Appellant in the amount of $119,019.26. Trial Court Opinion, 12/5/17, at 1-3. On January 4, 2018, Appellant filed a notice of appeal. On January 26, 2018, Appellant filed his Pa.R.A.P. 1925(b) statement, and on February 20, 2018, Judge Friedman filed her Pa.R.A.P. 1925(a) opinion.
We note the inconsistency in the identified award amount in the August 7, 2017 order, but do not find this discrepancy to impact the outcome of this matter.
Appellant subsequently filed a Combined Motion and Brief on March 8, 2019, and a Motion and Combined Reply Brief on March 27, 2019, with this Court. These motions are denied as moot in light of our holding herein.
Appellant presents the following issues for our review:
1. Whether the first trial court, Judge Johnson, correctly concluded the Chiropractic Business at issue was a partnership, and that Dr. Nicosia, as an unlicensed person, could not legally be the 100% owner of the Chiropractic Business as a "division" of his corporation Advanced Diagnostics PC.
2. Whether Dr. Nicosia, as an unlicensed individual, could legally be a 50% partner in the Chiropractic Business with [Appellant] a licensed chiropractor, the other 50% partner.
3. The third trial court, Judge Friedman, incorrectly concluded that if the Chiropractic Business is an illegal partnership, then [Appellant] was in pari delicto with Dr. Nicosia and not entitled to any relief.
4. Whether the accounting determined by the third trial court, Judge Friedman, must be overturned because it did not account for the substantial amount of chiropractic revenue which both litigants claim is still missing.
5. Whether the second trial court, Judge Ward, and the third trial court, Judge Friedman, abused their discretion, and committed an [sic] errors of law, in the manner in which they handled the accounting phase - including subsidy questions per Pa R.A.P. Rule 2111(b).
6. Whether the third trial court, Judge Friedman, abused her discretion, and committed an error of law, by her dismissal as "moot" the third phase of Stewart v. Nicosia, which included dismissal of [Appellant's] seven causes of action at law at GD-01-014628.Appellant's Brief at 5 (emphases in original).
Appellant's first three issues pertain to the trial court's findings as related to his partnership with Nicosia. Appellant first asserts that Judge Johnson correctly ruled that the chiropractic business was a partnership. Appellant's Brief at 22. Appellant furthers this position by stating that:
There [were] more than sufficient facts and circumstances for Judge Johnson to conclude that the Chiropractic Business was a 50%-50% partnership between [Appellant] and [Nicosia], including that the litigants agreed to split 50%-50% the profits and losses from the Chiropractic Business.Id. Despite these assertions, Appellant then states that "[Nicosia], as an unlicensed person, violated Section 2922(a) of the PA Professional Corporation Law in his attempt to be the sole owner of the Chiropractic Business." Id. at 24. He further inexplicably mentions Judge Johnson's observation during the Phase One trial that if Nicosia were the sole owner of the chiropractic business, such action would be unlawful. Id. at 25.
We are unable to discern what, if any, challenge Appellant is attempting to raise in this issue. Judge Johnson indeed agreed with Appellant's position that there was a fifty-fifty partnership, and entered an order consistent with that determination. Order, 9/14/05, at 1-2. Judge Johnson did not declare it to be an illegal partnership. Id. Thus, Appellant is entitled to no relief on this issue.
Appellant next argues that Nicosia, an individual without a chiropractic license, could not legally be a fifty percent partner in the chiropractic business with Appellant, a licensed chiropractor and the other fifty percent partner. Appellant's Brief at 26. Generally, Appellant asserts that because Nicosia was an unlicensed entity, he could not be a fifty percent partner in a professional partnership, and therefore the partnership was illegal. Id. at 27-28.
We first note that Appellant failed to raise this issue before Judge Johnson during Phase One of the litigation relating to the partnership. Moreover, throughout litigation at the trial phase, it was Appellant's position that the chiropractic business was a lawful partnership. Complaint, 7/17/01; Complaint, 7/24/01; Amended Complaint, 5/28/02. Accordingly, Appellant cannot now argue that it was not a lawful partnership. Indeed, in Issue one of his appellate brief, as discussed above, Appellant asserts that Judge Johnson correctly determined that the chiropractic business was a lawful partnership owned equally by the parties. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Thus, this issue is waived and Appellant is entitled to no relief on this claim.
In his third issue, Appellant argues that Judge Friedman incorrectly concluded that if the chiropractic business was an illegal partnership, then Appellant was in pari delicto with Nicosia and not entitled to any relief. Appellant's Brief at 30. Appellant maintains that in this case, Nicosia is the "sole culpable party on the illegal issue." Id. Appellant further states:
This is because, as Judge Johnson found, [Nicosia] had knowledge prior to the start of the Chiropractic Business it was likely illegal under Pennsylvania law for him to be the 100% owner of the Chiropractic Business.Id. at 30 (emphasis in original, internal citations omitted).
[Appellant], however, did not have any knowledge of the illegality issue until [Nicosia's accountant, Mr. Gerson] testified about it during the partnership trial. Further, Mr. Gerson testified he did not share his research on the illegality issue with [Appellant]. As such, [Nicosia] can not obtain court relief while [Appellant] can obtain court relief.
We again note that there was no finding by the trial court that the chiropractic business was an illegal partnership. As Judge Friedman noted in her Pa.R.A.P. 1925(a) opinion:
Judge Johnson, not [Judge Friedman], agreed with [Appellant's] position that there was indeed a partnership. He declined to declare it an "illegal" partnership but rather concluded that it was a 50-50 partnership which needed to be wound up and entered an order by which the First Phase of the trifurcated trial was concluded. Furthermore, [Appellant] would be in pari delicto with [Nicosia] regarding the existence of an illegal chiropractic partnership and would not be entitled to any relief from the [c]ourt.Trial Court Opinion, 2/21/18, at 6 (emphasis in original). Judge Friedman simply observed that if there were an illegal partnership, Appellant would be in pari delicto with Nicosia, and therefore not entitled to any relief. She did not make that statement as a finding. Thus, Appellant is not entitled to relief on this issue.
In his fourth issue, Appellant argues that the accounting must be overturned because it did not account for the substantial amount of chiropractic revenue which both litigants claim is still missing. Appellant's Brief at 31. Appellant asserts that during discovery, Nicosia testified that after the chiropractic business ended, Nicosia and his wife:
[r]eviewed the patient files in the Greycat Computer, and compared those entries to the patient paper records, and they compiled a "big long list" of patients who received chiropractic services, were billed for those services, but that the money which was paid for those services was missing.Id. at 31 (emphases in original). Appellant further contends that there was a dispute as to whom the list of patients and services was given, but asserts that it was never provided to him. Id. Appellant posits that the accounting did not include the amounts of missing money, and as a result, the case must be remanded for a more accurate accounting of chiropractic revenue with a focus on this missing money. Id.
We first note that Appellant has failed to identify where in the record he raised this issue before the trial court, either during the accounting phase of trial or in post-trial motions. "Issues not raised in the lower court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a).
Moreover, we shall not assume the burden of searching through the voluminous record in this case in an attempt to determine whether Appellant raised this issue before the trial court. "This Court will not act as counsel and will not develop arguments on behalf of an appellant." Irwin Union Nat. Bank and Trust Co. v. Famous , 4 A.3d 1099, 1103 (Pa. Super. 2010). It is not this Court's responsibility to comb through the record seeking the factual underpinnings of a claim. Id. When deficiencies in a brief hinder our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived. Id.; Pa.R.A.P. 2101. Because Appellant failed to establish that this issue was raised before the trial court and such failure hinders our ability to conduct meaningful appellate review, we find this claim to be waived. Pa.R.A.P. 2101.
Even if the issue had not been waived, we would conclude that it lacks merit. As referenced in the trial court's June 9, 2017 decision addressing Phase Two of the litigation related to the accounting, the court was aware of the patient files and billing as included in the Greycat computer system utilized for the partnership. Trial Court Opinion, 6/9/17, at 6-15. Specifically, the trial court stated the following with regard to the Greycat billing information:
We therefore find that [Appellant's wife] made the complete Greycat billing printouts, probably to be sure [Appellant] had those billing records; we believe it is more likely than not that he had his own patient treatment records for his current patients in his Mt. Troy office and therefore only needed the Greycat printouts to be able to follow up regarding monies that might be due him from the Shadyside practice.Id. at 11. Therefore, Appellant had the information from the Greycat system that he alleges to have been missing. Moreover, the trial court made the following finding: "There was sufficient evidence available for a reasonably accurate accounting of the revenue and expenses and profits and losses of the partnership to be made." Id. Thus, there is no evidence that a substantial amount of revenue was missing from the records supporting the accounting. As such, we would not conclude that the trial court erred in conducting the accounting.
In his fifth issue, Appellant argues that "the second trial court, Judge Ward, and the third trial court, Judge Friedman, abused their discretion, and committed an errors [sic] of law, in the manner in which they handled the accounting phase-including subsidy questions per Pa R.A.P. Rule 2111(b)." Appellant's Brief at 5. Despite presenting this single issue in his statement of questions involved, Appellant attempts to expand this vague single issue into an additional eight "sub-issues" in the argument section of his brief. Id. at 32-43. The Rules of Appellate Procedure provide that issues to be resolved must be included in the statement of questions involved or "fairly suggested" by it. Pa.R.A.P. 2116(a). "[Pa.R.A.P. 2116(a)] is to be considered in the highest degree mandatory, admitting of no exception; ordinarily, no point will be considered which is not set forth in the statement of questions involved or suggested thereby." Thomas v. Elash , 781 A.2d 170, 177 (Pa. Super. 2001); see also Wirth v. Com., 95 A.3d 822, 858 (Pa. 2014)). These sub-issues are not included in the statement of questions involved, nor are they "fairly suggested" by the extraordinarily vague issue listed in the statement of questions involved. Thus, we hold that Appellant has waived these claims. Graziani v. Randolph , 856 A.2d 1212, 1216 (Pa. Super. 2004).
We note that Pa.R.A.P. 2111(b) relates to the contents of an appellate brief and the requirement that an opinion from the trial court be appended to the brief. Accordingly, we are uncertain of the reason or basis for Appellant's citation to that rule in the context of this issue.
Moreover, review of these eight sub-issues reveals that at least two of them were not raised in Appellant's Pa.R.A.P. 1925(b) statement. Specifically, in Appellant's sub-issue "A," he asserts that Judge Ward and Judge Friedman erred in failing to apply Clement v. Clement , 260 A.2d 728 (Pa. 1970), to shift the burden in the accounting phase to Nicosia. Appellant's Brief at 32. This issue was not raised in Appellant's Pa.R.A.P. 1925(b) Statement. Pa.R.A.P. 1925(b) statement, 1/26/18, at 1-13. Further, Appellant's sub-issue "B" alleges error by Judge Ward in the appointment of an alleged incompetent witness. Appellant's Brief at 34. Review of Appellant's Pa.R.A.P. 1925(b) statement shows no allegation of abuse of discretion or error by Judge Ward. Pa.R.A.P. 1925(b) statement, 1/26/18, at 1-13. Because these issues were not raised in his Pa.R.A.P. 1925(b) statement, they would be waived on this basis as well. See U.S. Bank , N.A. for Certificateholders of LXS 2007-7N Trust Fund v. Hua , 193 A.3d 994, 997 (Pa. Super. 2018) ("Any issues not raised in a Pa.R.A.P. 1925(b) statement will be deemed waived.") (quoting Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998)).
Moreover, the trial court conducted a thorough accounting as is reflected in its June 9, 2017 decision. We conclude that the trial court did not abuse its discretion in preparing the accounting, and to the extent that the sub-issues raised in Appellant's brief under heading "Argument #5" are not waived, we would affirm on the basis of that opinion.
The parties are instructed to attach a copy of the trial court's June 9, 2017 decision to further pleadings in this matter.
In his final issue, Appellant argues that Judge Friedman abused her discretion and committed an error of law in dismissing as "moot" the third phase of the trial, which resulted in dismissal of Appellant's seven causes of action at law. Appellant's Brief at 43. Appellant maintains that he had viable claims remaining against Nicosia, including claims of unjust enrichment and breach of fiduciary duties. Id. at 43. The trial court addressed this issue in its October 25, 2017 memorandum. Therein, the trial court explained that, given the findings and determinations made during Phase Two of the litigation, there were no viable claims at law remaining against Nicosia. Trial Court Opinion, 10/25/17, at 3-4. Specifically, the trial court explained:
All of the claims at law arise from the relationship between the parties, which [Appellant], in Phase One, had successfully asserted was an "oral at-will partnership." However, during the Phase Two accounting, the material facts supporting each of these claims at law were decided adversely to [Appellant]. After consideration of the arguments of counsel, we conclude that the claims, as we suspected, are indeed moot. There is no count at law that remains to be tried. Crucial elements, if not all elements of each of the above claims, have already been decided, adversely to [Appellant].
One important missing element is harm to [Appellant]. The accounting of the partnership revealed that [Appellant] suffered no harm.Trial Court Opinion, 10/25/17, at 3-4 (emphasis in original).
Another missing element is wrongdoing by [Nicosia]. The accounting revealed that [Nicosia] had not acted wrongfully at all, and, in fact, that it was [Appellant] who did so, by, inter alia, misappropriating funds that should have gone into the partnership's "main account," the Advanced Diagnostics checking account at PNC Bank.
Another significant finding of fact in Phase Two is that the partnership made no profit so there was nothing to be distributed to [Appellant]. There can be no wrongful withholding of distributions if there was nothing to distribute.
Regarding the Wage Payment Law/Act violations, [Appellant] successfully contended that he and [Nicosia] were 50-50 partners, and presented no evidence during the Phase Two Accounting regarding unpaid salaries, an item that certainly should have been part of the accounting.
Regarding conversion, the evidence and factual findings at Phase Two belie [Appellant's] assertions that [Nicosia] converted chiropractic equipment to his own use.
The evidence and factual findings at Phase Two also make it clear that [Appellant], not [Nicosia], ended the partnership when he walked out at the end of April 1999.
We agree with the trial court's conclusion regarding Appellant's final issue and affirm on the basis of its October 25, 2017 memorandum. Accordingly, Appellant is entitled to no relief on this claim.
The parties are instructed to attach a copy of the trial court's October 25, 2017 decision to further pleadings in this matter.
Judgment affirmed. Application for relief denied. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/15/2019
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