Phila. Professional Collections v. Mickman, E. ( 2020 )

J-S45032-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
PHILADELPHIA PROFESSIONAL : IN THE SUPERIOR COURT OF
COLLECTIONS, LLC : PENNSYLVANIA
:
:
v. :
:
:
ELAINE MICKMAN :
: No. 1292 EDA 2019
Appellant :
Appeal from the Order Entered March 27, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 02793 November Term, 2014
PHILADELPHIA PROFESSIONAL : IN THE SUPERIOR COURT OF
COLLECTIONS, LLC : PENNSYLVANIA
:
:
v. :
:
:
ELAINE MICKMAN :
: No. 1295 EDA 2019
Appellant :
Appeal from the Order Dated March 27, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 02793 November Term, 2014
BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 30, 2020
In these consolidated appeals, Elaine Mickman (Appellant) appeals from
the orders entering judgment against her and in favor of Philadelphia
Professional Collections, LLC (PPC). Upon careful review, we affirm.
J-S45032-20
On December 1, 2007, Appellant retained the law firm of White &
Williams, LLP (W&W) to represent her with litigation in the state of Delaware.1
Appellant signed a written engagement contract prepared by W&W; she
agreed to pay for legal fees at W&W’s hourly rates, as well as any out-of-
pocket costs and expenses incurred by W&W in connection with Appellant’s
case. In the following years, Appellant and her ex-husband engaged in
protracted litigation, which is not relevant to the instant appeal.
In connection with W&W’s representation of Appellant in the Delaware
litigation, W&W sought payment from Appellant; however, she failed to pay
fees and costs of approximately $157,600. W&W then sent Appellant a letter,
dated October 20, 2014, stating that it had assigned its rights and claims
against her to PPC, a payment collections company. Notably, PPC is a wholly
owned subsidiary of W&W. After Appellant refused PPC’s demand for
payment, the trial court granted W&W leave to withdraw as Appellant’s
counsel.
On November 25, 2014, PPC filed a complaint against Appellant raising
two causes of action, breach of contract and unjust enrichment.2 W&W was
not named as a party in the action. PPC attempted to serve Appellant, without
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1The litigation concerned the division and ownership of substantial business
assets held by Appellant and her ex-husband.
2 PPC later withdrew the unjust enrichment count.
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success, for over a year. Eventually, however, Appellant was served, and the
trial court permitted her to proceed in forma pauperis. On July 10, 2015,
Appellant filed pro se preliminary objections. Appellant represented herself in
all of the proceedings before the trial court.3
On April 13, 2016, PPC filed a motion in limine, requesting that the trial
court preclude Appellant from introducing certain evidence at trial. The court
conducted a hearing on the motion and eventually granted it, stating:
In this matter, [Appellant] will be precluded from providing any
evidence against the nonparty [W&W,] and evidence of
[Appellant’s] own financial and/or health status. Th[is evidence]
will not be permitted in the course of this trial, nor may [Appellant]
introduce any evidence, argument, or testimony regarding
[W&W], [and] … any potential legal malpractice action or breach
of contract or egregious billing practices [by W&W].
N.T., 4/28/16, at 32-33 (motion in limine order).4
The matter proceeded to a jury trial on December 10, 2018. At the
close of trial on December 12, 2018, the jury entered a verdict in PPC’s favor,
and awarded PPC approximately $157,600.
On December 21, 2018, Appellant filed a pro se motion for post-trial
relief. Appellant raised, in relevant part, the following claims of error:
 “The verdict result was affected by a Motion in Limine, which
precluded enjoining an indispensable party[, W&W]”;
____________________________________________
3 Appellant is represented by counsel on appeal.
4Appellant filed an appeal from the motion in limine order, which this Court,
on June 24, 2016, quashed as interlocutory.
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 “The verdict is against the weight of the evidence and burden
of proof, and was based on false testimony and conflicting and
contradictory evidence of [PPC’s] witnesses and exhibits.”
 “Conduct of the court and counsel prejudiced the jury and
tainted the verdict.”
Motion for Post-Trial Relief, 12/21/18, at 1 (numbering omitted). Appellant
sought the entry of judgment in her favor notwithstanding the verdict (JNOV),
or a new trial. PPC filed a response in opposition to Appellant’s motion on
January 9, 2019.
In the interim, PPC filed a motion to mold the verdict to reflect an award
of pre-judgment interest (motion to mold verdict) on December 21, 2018.
On March 19, 2019, Appellant filed a motion requesting that the
presiding judge recuse. The trial court scheduled a hearing on Appellant’s
respective motions.
By an order entered March 27, 2019, the trial court denied Appellant’s
motion for post-trial relief and entered judgment against Appellant for
approximately $157,600. By separate order entered the same day, the court
granted PPC’s motion to mold verdict, and entered a revised judgment against
Appellant for $196,535.24. The court denied Appellant’s motion to recuse in
an order entered March 27, 2019.
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On April 25, 2019, Appellant filed a pro se notice of appeal.5 The trial
court ordered Appellant to file a concise statement of errors complained of on
appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).
Appellant timely filed a pro se concise statement, after which the trial court
issued an opinion.
Appellant presents three issues for our review:
1. [Whether t]he court erred as a matter of law and overlooked
or misapplied the rules by not vacating, nullifying, or reversing
a verdict as nonsuit and that was without a cause of action to
establish relief[, where PPC]:
(a) failed to join an indispensable party; and
(b) changed their Judicial Notice pleading during trial and
testimony after [PPC] intentionally deceived the court
into granting a Motion in Limine[,] which denied
[Appellant] due process, and willfully precluded and
suppressed [Appellant] from asserting and presenting
defenses, counterclaims, cross-claims, and/or
recoupment to, and that, ensured omissions for matters
of controversy?
2. Did the court err by not vacating, nullifying or reversing the
verdict which was against the weight of the evidence and
burden of proof, [where the verdict] was excessive, and relied
on [PPC’s] conflicting and contradictory testimony and
evidence?
3. Did the court err in not granting a new trial due to the jury
being tainted and influenced by prejudicial remarks and
____________________________________________
5 Appellant filed two separate notices of appeal; one pertained to the order
granting PPC’s motion to mold verdict, and entering judgment against
Appellant, and the other pertained to the order denying Appellant’s post-trial
motion. On May 23, 2019, Appellant filed a pro se application to consolidate,
which we granted by per curiam order on June 7, 2019.
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conduct in the court, by the court, and by the jury not honoring
their oath to decide on the burden of evidence?
Appellant’s Brief at 4-5.
Appellant’s first issue contains two sub-issues: whether the trial court
erred in (a) failing to join W&W as an indispensable party to the action brought
by its wholly owned subsidiary, PPC, see id.; and/or (b) granting PPC’s motion
in limine, which deprived Appellant of due process and her right to present a
complete case. See id. at 20-21. We address these claims separately.
We have explained:
[i]n reviewing a trial court’s denial of a post-trial motion seeking
a new trial, this Court applies a deferential standard of
review. The decision whether to grant or deny a new trial is one
that lies within the discretion of the trial court. We will not
overturn such a decision unless the trial court grossly abused its
discretion or committed an error of law that controlled the
outcome of the case.
Woullard v. Sanner Concrete & Supply, 2020 PA Super 263, **18-19 (Pa.
Super. 2020) (citation omitted).
Concerning a trial court’s ruling on a motion for JNOV, our standard of
review is as follows:
A JNOV can be entered upon two bases: (1) where the movant is
entitled to judgment as a matter of law; and/or, (2) the evidence
was such that no two reasonable minds could disagree that the
verdict should have been rendered for the movant. When
reviewing a trial court’s denial of a motion for JNOV, we must
consider all of the evidence admitted to decide if there was
sufficient competent evidence to sustain the verdict. In so doing,
we must also view this evidence in the light most favorable to the
verdict winner, giving the victorious party the benefit of every
reasonable inference arising from the evidence and rejecting all
unfavorable testimony and inference[s]. Concerning any
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questions of law, our scope of review is plenary. Concerning
questions of credibility and weight accorded the evidence at trial,
we will not substitute our judgment for that of the finder of fact.
If any basis exists upon which the jury could have properly made
its award, then we must affirm the trial court’s denial of the motion
for JNOV. A JNOV should be entered only in a clear case.
Egan v. USI Mid-Atlantic, Inc., 92 A.3d 1, 19-20 (Pa. Super. 2014) (citation
omitted).
In Appellant’s issue 1(a), she contends the trial court erred in denying
her post-trial relief where W&W should have been joined as an indispensable
party to the action. See Appellant’s Brief at 8, 10-20. Appellant contends,
PPC is merely a shell company created as an illusion to in part
frustrate litigation efforts of the defendants in their path. … PPC
is W&W. W&W represents PPC. PPC receives nothing and
surrenders every nickel recovered. More properly, PPC is the
collections department for W&W. W&W is the true party. It is
W&W[’s] interests that are protected with the PPC shield, it is their
financial interests being pursued and it is all theirs at the end of
the day.
Id. at 8.
The failure to join an indispensable party to a lawsuit deprives the court
of subject matter jurisdiction. Orman v. Mortgage I.T., 118 A.3d 403, 406
(Pa. Super. 2015). We have explained,
a party is indispensable when his or her rights are so connected
with the claims of the litigants that no decree can be made without
impairing those rights. If no redress is sought against a party,
and its rights would not be prejudiced by any decision in the case,
it is not indispensable with respect to the litigation. We have
consistently held that a trial court must weigh the following
considerations in determining if a party is indispensable to a
particular litigation.
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1. Do absent parties have a right or an interest related to the
claim?
2. If so, what is the nature of that right or interest?
3. Is that right or interest essential to the merits of the issue?
4. Can justice be afforded without violating the due process rights
of absent parties?
In determining whether a party is indispensable, the basic
inquiry remains whether justice can be done in the absence of a
third party. In undertaking this inquiry, the nature of the claim
and the relief sought must be considered.
Hendricks v. Hendricks, 175 A.3d 323, 328-29 (Pa. Super. 2017) (citations
omitted).
Instantly, the trial court determined that W&W was not an indispensable
party, stating:
PPC is a wholly owned limited liability company that is
owned by the law firm of [W&W]. It is the company that collects
outstanding accounts receivables or bills due from ex-clients who
failed to pay their bills. N.T., 12/10/18, at 98. The collection
effort by PPC was started through a written assignment
agreement [in] which [W&W] assigns all its rights to collect the
outstanding bill to PPC. Id. at 99.
The evidence showed that [PPC] received an assignment of
[W&W’s] rights to all claims and accounts receivable that [W&W]
has or had against [Appellant]. Under Pennsylvania law, a party
may assign to others its legal rights to assert claims. In this case
it is not disputed that [W&W] assigned its claims against
[Appellant] to [PPC]. Therefore, PPC has standing to sue
[Appellant] and further, [W&W] was not an indispensable party to
this collection action. With a valid assignment in place, [W&W]
was not legally required to be a party in this action and was not
required to be named as a party.
On the other hand, nothing prevented [Appellant] from
joining [W&W] as an additional party to this action when she was
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initially served with PPC’s complaint pursuant to Pa.R.C.P. 2252,
if she believed she may have had a cause of action against it for
claims arising from its representation of her in which these bills
were incurred. Whether those claims would have been legally
valid are beyond the issues in this instant matter, but it is being
pointed out simply to show there may have been legal remedies
available to her.
Trial Court Opinion, 2/13/20, at 5-6 (citations modified).
Our review discloses that the record supports the trial court’s rationale,
and we agree with the court’s legal conclusion; PPC was the real party in
interest and W&W was not indispensable. See, e.g., Wilcox v. Regester,
207 A.2d 817, 820 (Pa. 1965) (explaining “an effective assignment is one by
which the assignor’s right to performance by the obligor is extinguished and
the assignee acquires a similar right to such performance. Therefore, the
assignee is usually the real party in interest and an action on the assignment
must be prosecuted in his name.” (internal citations omitted)). Accordingly,
Appellant’s issue 1(a) does not merit relief.
In issue 1(b), Appellant argues that the trial court erred in entering the
motion in limine order, which, Appellant avers, gave “credence to every line
item in every bill[, i.e., legal bill from W&W,] as it could not be challenged in
any meaningful way.” Appellant’s Brief at 21. According to Appellant, PPC
“intentionally deceived” the trial court into granting the motion in limine. Id.
at 5, 21.
Initially, we must determine whether Appellant preserved this issue for
our review. See, e.g., Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super.
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2007) (explaining that the fact that “[a]ppellants filed a timely Pa.R.A.P.
1925(b) statement does not automatically equate with issue preservation.”).
Rule 1925(b) requires an appellant to, inter alia, “concisely identify each ruling
or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues” for the trial court judge. Pa.R.A.P. 1925(b)(4)(ii)
(emphasis added). “[F]ailure to comply with the minimal requirements of
Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.” U.S.
Bank, N.A. v. Hua, 193 A.3d 994, 997 (Pa. Super. 2018) (emphasis in
original, citation omitted); see also Greater Erie Indus. Dev. Corp., 88
A.3d at 224 (stating that “it is no longer within this Court’s discretion to ignore
the internal deficiencies of Rule 1925(b) statements.”).
Further, we have explained:
Pa.R.A.P. 1925 is a crucial component of the appellate process
because it allows the trial court to identify and focus on those
issues the parties plan to raise on appeal. We [have held] that “a
Concise Statement which is too vague to allow the court to identify
the issues raised on appeal is the functional equivalent to no
Concise Statement at all.” Commonwealth v. Dowling, 778
A.2d 683, 686-87 (Pa. Super. 2001). “Even if the trial court
correctly guesses the issues [an appellant] raise[s] on appeal and
writes an opinion pursuant to that supposition the issues are still
waived.” Kanter v. Epstein, 866 A.2d 394, 400 (Pa. Super.
2004) (citation omitted[).] … We also have stated that:
When a court has to guess what issues an appellant is
appealing, that is not enough for meaningful review.
When 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.
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Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006)
[(citation omitted)].
Satiro v. Maninno, 2020 PA Super 185, *10 (Pa. Super. 2020) (citations
modified).
Here, the trial court found that Appellant waived this issue, because “at
no time were any specific details provided as to the manner of [PPC’s] alleged
deceit,” and the court “had to guess what wrongdoing [] Appellant believes
occurred” in connection with the motion in limine. Trial Court Opinion,
2/13/20, at 6, 7 (citing, inter alia, Kanter, supra). We agree this issue is
waived. See Satiro, supra; see also Korman Commer. Props. v.
Furniture.com, LLC, 81 A.3d 97, 102 (Pa. Super. 2013) (finding waiver of
appellant’s issue on appeal where it was not properly preserved in the Rule
1925(b) concise statement, and the trial court did not address it in its Rule
1925(a) opinion).6
In her next issue, Appellant asks: “Did the court err by not vacating,
nullifying or reversing the verdict which was against the weight of the evidence
____________________________________________
6We acknowledge that Appellant chose to represent herself in the proceedings
below and has no legal training. However,
a pro se litigant … is not entitled to any particular advantage
because [s]he lacks legal training. … [A]ny layperson choosing to
represent [themselves] in a legal proceeding must, to some
reasonable extent, assume the risk that [their] lack of expertise
and legal training will prove [their] undoing.
Satiro, supra at *12 (citation omitted).
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and burden of proof, [where the verdict] was excessive, and relied on [PPC’s]
conflicting and contradictory testimony and evidence?” See Appellant’s Brief
at 5. However, Appellant does not advance any argument in support of this
issue in the argument section of her brief, in violation of Pennsylvania Rule of
Appellate Procedure 2119(a). Accordingly, we are once again constrained to
find waiver. See Coulter v. Ramsden, 94 A.3d 1080, 1088-89 (Pa. Super.
2014) (stating that mere issue spotting without analysis or legal citation to
support an assertion precludes appellate review).
In her third and final issue, Appellant argues that the trial court erred in
failing to award her a new trial where the jury was “tainted and influenced by
prejudicial remarks and conduct in the court, [and] by the court[.]”
Appellant’s Brief at 22. According to Appellant,
[t]he jury was exposed to the trial court correcting [Appellant]
throughout most of the two-day hearing. Seven times on day
one[, Appellant] was sent to the sidebar. This in and of itself likely
created and reinforced an impression that [Appellant] didn’t know
what she was talking about.
Id.; see also id. at 23 (asserting the “jury was not offered instruction as to
how to interpret the multiple sidebars”). Appellant further argues that an
exchange at trial improperly “calls into question [Appellant’s] credibility and
assigns the [trial c]ourt’s endorsement of W&W”; Appellant refers to the
following exchange:
THE COURT: All right. Ma’am, [i.e., Appellant,] you’re not an
expert in the law, you’re not a prosecutor. You don’t know what
constitutes a fraud or not. Do not allege a criminal act against a
law firm that has a stellar reputation in the city.
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A SPECTATOR: They didn’t have a stellar reputation –
THE COURT: Get out my courtroom. Get out of my courtroom.
Get out and don’t come back. You don’t yell from the gallery. Get
out of my courtroom. Don’t you understand, or do you want to
be arrested?
A SPECTATOR: (inaudible)
THE COURT: Shut up and get out of the courtroom. Don’t talk.
Id. (quoting N.T., 12/11/18, at 35). The above notwithstanding, Appellant
concedes that “the trial court was quite patient and accommodating with
[Appellant.]” Appellant’s Brief at 22.
In its opinion, the trial court has observed that Appellant’s concise
statement, “like her [pro se] post-trial motion, [is] nothing more than
boilerplate, vague, and lacking in any reference to the record as where [sic]
such claims of error allegedly occurred.” Trial Court Opinion, 2/13/20, at 3-
4. Indeed, Appellant’s weight of the evidence claim was so vague that the
trial court had to guess what particular evidence Appellant was challenging as
contrary to the jury’s verdict. Accordingly, this issue is waived. See Satiro,
supra; see also Cauthorn v. Owens Corning Fiberglass Corp., 840 A.2d
1028, 1033-34 (Pa. Super. 2004) (holding appellant waived weight of the
evidence challenge where claim in post-trial motion was boilerplate and failed
to specify the allegedly overlooked evidence by the jury, and stating,“[t]o
permit the trial court to grant a new trial on the basis of a very general
assignment of error, such as ‘the verdict is … against the evidence,’ would
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result in losing the advantages of requiring specific assignments of error.”
(citation omitted)).
However, even if this claim was not waived, we would conclude that it
lacks merit based upon our review of the record, and the trial court’s
corresponding rationale:
[T]his court was extremely patient with this pro se party and
granted her extensive leeway in her opening remarks to the jury,
during her questioning of witnesses, her presentation of evidence,
and finally her closing remarks. Unfortunately, [] Appellant sees
this court’s role in determining the admissibility of evidence to be
presented to the finder of fact as being prejudicial to her. Any
court’s ruling on the admissible evidence will by its own nature be
prejudicial to the party against whom it is presented[;] however,
simply because it is prejudicial to their interests, it does not make
it inadmissible.
During the entire trial, Appellant attempted to argue legal
principles while questioning witnesses or presenting her own
testimony in her defense. This court prevented her from arguing
the law to the jury, as it is the trial judge’s duty to advise the jury
of the applicable law in the jury charge. [] Appellant had also
attempted on several occasions to present evidence that was
specifically precluded by the motion in limine. Again, as the
gatekeeper of the evidence, this could not be permitted and this
court advised [] Appellant of the same.
In reading the record as a whole, it is clear that this court
showed no bias or prejudice towards [] Appellant in front of the
jury. There was no ill will, bias or impartiality displayed or even
the appearance of the same. Therefore, this claim is without
merit.
Trial Court Opinion, 2/13/20, at 10 (some capitalization omitted).
Accordingly, Appellant’s final issue, even if not waived, fails.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/30/2020
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