Kesselring, R. v. Harlow, P. ( 2015 )

J-A12030-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
RONALD ANDREW KESSELRING, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
PAMELA J. HARLOW A/K/A PAMELA J. :
MORRIS, DAVID MORRIS, AND RENT :
FOR LESS, :
:
Appellees : No. 1639 MDA 2014
Appeal from the Order entered September 5, 2014,
Court of Common Pleas, Adams County,
Civil Division at No. 07-S-1547
BEFORE: BOWES, DONOHUE and ALLEN, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 10, 2015
Ronald Andrew Kesselring (“Kesselring”) appeals from the order of
court granting the motion for summary judgment filed by Pamela Morris,
David Morris and Rent for Less (collectively “Appellees”). We affirm.
The trial court succinctly summarized the facts underlying this appeal
as follows:
The pathetic factual history in this litigation
finds its genesis in the deterioration of a romantic
relationship between [Kesselring] and his former
girlfriend, [Pamela Morris]. The parties were
involved in an on-and-off relationship between 2002
and approximately July 12, 2007, when Pamela
Morris moved out of Kesselring’s residence.
Following the parties’ separation, [Kesselring] alleges
a history of juvenile acts including various vandalism
[sic] to Kesselring’s property; threatening and
assaultive behavior; and the public display of signs
and circulation of fliers containing unflattering and
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degrading comments toward Kesselring, similar to
comments one may normally associate with grade
school behavior. Based upon these allegations,
Kesselring [] filed suit against Pamela Morris her
husband David Morris, and the company partly
owned and operated by David Morris, Rent for Less.
In his [c]omplaint, Kesselring includes causes of
actions based upon trespass to chattels, defamation,
false light, assault, conspiracy, and intentional
infliction of emotional distress. The [Appellees] …
move[d] for summary judgment generally claiming
that Kesselring is unable to provide competent proof
as to the elements necessary to support any of the
causes of action. [Appellees] also claim[ed] [that]
the causes of action for trespass, conspiracy, and
intentional infliction of emotional distress are barred
by the doctrine of res judicata due to a previous
litigation involving the same parties and the same
factual history which was resolved in [their] favor.
Trial Court Opinion, 9/8/14, at 1-2 (footnote omitted). The trial court
granted summary judgment in Appellees’ favor as to all claims raised by
Kesselring. This timely appeal follows.
Kesselring challenges the trial court’s ruling in five respects. He
presents these issues as follows:
Whether the trial court abused its discretion in
granting summary judgment in its entirety in favor
of [Appellees], as there remained several issues of
material fact, which make a grant of summary
judgment improper.
a. Whether [Kesselring] presented sufficient
evidence to preclude the grant of summary
judgment as to Count 1 [t]respass to
[c]hattels?
b. Whether [Kesselring] presented sufficient
evidence to preclude the grant of summary
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judgment as to Counts 2 and 3, [d]efamation
and [f]alse [l]ight?
c. Whether [Kesselring] presented sufficient
evidence to preclude the grant of summary
judgment as to Count 4 [a]ssault?
d. Whether [Kesselring] presented sufficient
evidence to preclude the grant of summary
judgment as to Count 5 [c]onspiracy?
e. Whether [Kesselring] presented sufficient
evidence to preclude the grant of summary
judgment as to Count 6 [i]ntentional
[i]nfliction of [e]motional [d]istress?
Kesselring’s Brief at 6.
To begin, Kesselring did not challenge the trial court’s determination
with regard to his claim for assault in his Pa.R.A.P. 1925(b) statement of
matters complained of on appeal or amended statement of matters
complained of on appeal. As such, it is waived. See Lazarski v.
Archdiocese of Philadelphia, 926 A.2d 459, 463 (Pa. Super. 2007)
(providing that an issue not raised in a statement filed pursuant to Pa.R.A.P.
1925(b) is deemed waived for purposes of appeal); Pa.R.A.P.
1925(b)(4)(vii).
Furthermore, Kesselring has provided woefully underdeveloped
arguments for his first, second and fourth issues. The arguments he
presents for each are limited to one paragraph. Kesselring does not set forth
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the elements of any of these claims nor provide citation to, much less
discussion of, relevant authority and how it relates to the facts of his case. 1
The Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be
supported by discussion and analysis of pertinent
authority. See Pa.R.A.P. 2119(b); Estate of
Lakatosh, [] 656 A.2d 1378, 1381 ([Pa. Super.]
1995) (concluding that appellant had waived issue
raised on appeal as corresponding argument in brief
included only general statements without appropriate
citation to authority). Without a reasoned discussion
of the law against which to adjudge [an appellant’s]
claims, our ability to provide appellate review is
hampered.
Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002). We
have long recognized that “[t]his Court will not act as counsel and will not
develop arguments on behalf of an appellant.” Bombar v. West American
Ins. Co., 932 A.2d 78, 93 (Pa. Super. 2007). Accordingly, we find these
issues waived. McGinley, 799 A.2d at 161.
We turn to the remaining claim: that the trial court erred in granting
summary judgment with regard to Kesselring’s intentional infliction of
emotional distress claim. We consider this claim cognizant that
1
Kesselring’s “arguments” for his first and second issues contain no case
citations. See Kesselring’s Brief at 17-18. We recognize that with regard to
his fourth issue, Kesselring cites two cases: one for the generic premise that
a conspiracy may be proved by direct or circumstantial evidence, and
another for the proposition that credibility determinations are matters for the
finder of fact. Id. at 20. He provides no relevant discussion of these
principles, stating only that “because the nature of this count can be proven
by circumstantial evidence, summary judgment was improper … because
there still remained a genuine issue of material fact that is a determination
for the trier of fact.” Id. This is not argument, it is a conclusion.
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an appellate court may reverse the entry of a
summary judgment only where it finds that the lower
court erred in concluding that the matter presented
no genuine issue as to any material fact and that it is
clear that the moving party was entitled to a
judgment as a matter of law. In making this
assessment, we view the record in the light most
favorable to the non-moving party, and all doubts as
to the existence of a genuine issue of material fact
must be resolved against the moving party. As our
inquiry involves solely questions of law, our review is
de novo.
Payne v. Commonwealth Dep’t of Corr., 871 A.2d 795, 800 (Pa. 2005)
(citations omitted). Pennsylvania Rule of Civil Procedure 1035.2 governs
motions for summary judgment and provides as follows:
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any
party may move for summary judgment in whole or
in part as a matter of law
(1) whenever there is no genuine issue of any
material fact as to a necessary element of the
cause of action or defense which could be
established by additional discovery or expert
report, or
(2) if, after the completion of discovery
relevant to the motion, including the
production of expert reports, an adverse party
who will bear the burden of proof at trial has
failed to produce evidence of facts essential to
the cause of action or defense which in a jury
trial would require the issues to be submitted
to a jury.
Pa.R.C.P. 1035.2.
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“In order to sustain a claim for intentional infliction of emotional
distress, the plaintiff must demonstrate that by extreme and outrageous
conduct, the defendant intentionally or recklessly caused the plaintiff severe
emotional distress.” Kryeski v. Schott Glass Technologies, Inc., 626
A.2d 595, 600 (Pa. Super. 1993). The law in this Commonwealth requires
the plaintiff to establish the existence of the alleged emotional distress with
competent medical evidence:
It is basic to tort law that an injury is an element to
be proven. Given the advanced state of medical
science, it is unwise and unnecessary to permit
recovery … without expert medical confirmation that
the plaintiff actually suffered the claimed distress.
Moreover, the requirement of some objective proof
of severe emotional distress will not present an
unsurmountable obstacle to recovery. Those truly
damaged should have little difficulty in procuring
reliable testimony as to the nature and extent of
their injuries. We therefore conclude that …
existence of the alleged emotional distress must be
supported by competent medical evidence.
Kazatsky v. King David Mem'l Park, Inc., 527 A.2d 988, 995 (Pa. 1987).
The requirement of expert medical evidence serves to “support claims of
emotional distress, both as to the fact of the distress itself and as to the
causation element[.]” Wecht v. PG Pub. Co., 725 A.2d 788, 791 (Pa.
Super. 1999).
Presently, the trial court found that Kesselring failed to produce the
requisite medical evidence to support his claim of intentional infliction of
severe emotional distress. Trial Court Opinion, 9/8/14, at 8-9. Kesselring
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disagrees. He argues that his treating physician, Dr. David Zickafoose,
would testify at trial and points to a note that he produced from Dr.
Zickafoose. Kesselring’s Brief at 20. We have reviewed the letter to which
Kesselring refers. It provides only that Kesselring began taking Paxil for
anxiety and depression in 2000; stopped taking it in 2006; and began to
take a different medication for stress and depression in April 2011.
Appellees’ Motion for Summary Judgment, 7/24/14, at Exhibit C. In his
letter, Dr. Zickafoose does not opine that Kesselring’s anxiety and
depression were related to Appellees’ alleged actions. Furthermore, it is
notable that the events that form the basis for Kesselring’s intentional
inflection of emotional distress claim occurred in 2007 and 2008, see
Amended Complaint, 4/6/10, at 2-8, a period of time during which
Kesselring was not taking medication for anxiety or depression, and
according to Kesselring’s medical expert, he did not resume taking this
medication until approximately three years after these events occurred.
Kesselring has failed to produce evidence to establish that Appellees’ alleged
conduct caused his alleged emotional distress, and therefore failed to
produce evidence of facts essential to the cause of action. As such,
summary judgment on this count was proper pursuant to Pa.R.C.P.
1035.2(2).
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/10/2015
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