By James W. Cushing
Special to the Legal
The recent Pennsylvania Superior Court matter of J.J. DeLuca v. Toll Naval Associates, 2012 Pa.Super. 222, involved a large construction contract, alleged breaches of that contract and allegations of fraud over the life of the relationship of the parties in this case. Although the underlying case is interesting, the focus of this article is what amounted to the primer the court gave in its opinion regarding appellate practice.
After a verdict and an appeal and remand of the same, the trial court again calculated damages that were appealed again by both parties. On appeal, DeLuca raised a whopping 16 issues while Toll raised nine. When faced with potentially 25 issues raised on appeal, the court recalled U.S. Court of Appeals for the Third Circuit Senior Judge Ruggero J. Aldisert’s statement in his opinion prepared in the case of Kenis v. Perini, 452 Pa.Super. 634 (1996), when he said, “When I read an appellant’s brief that contains 10 or 12 points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.” When reviewing DeLuca’s issues raised on appeal, the court further observed that they often overlapped with one another and were inconsistently numbered and lettered.
Some of DeLuca’s arguments regarded the sums of money paid by Toll at one point during the matter. Despite DeLuca’s taking the time to make the arguments, they had virtually no references to places in the record to support their claims. The court noted that Pa.R.A.P. 2119(c) requires references made to pleadings and evidence and such to be specifically cited to in the record. Indeed, the court, citing Commonwealth v. Imes, 603 Pa. 680 (2009), specifically said it would not “scour the record to find the evidence to support an argument.” As a result, the insufficiently cited claims were deemed waived by the court.
The subsequent argument raised by DeLuca presented a conclusory statement without any supporting authority and was therefore deemed waived by the court. DeLuca’s next argument was quickly deemed “demonstrably incorrect” by the court when compared to the clear testimony of the record. DeLuca’s argument after that was also deemed waived because “DeLuca has failed to develop an argument in support of its … claim, and offers no authority at all to support it.” DeLuca also proposed an argument based on the statute of limitations. The court ruled this argument, too, was waived, as “DeLuca [did] not present any citation to the record to support its claim, or to show where Toll’s evidence was deficient.”
Indeed, another of its arguments was dismissed because DeLuca offered “no other substantiation or explanation” aside from a bald assertion offering “no other support of its claim,” not to mention that it “fail[ed] to present or develop an independent argument in support of its claim.” Furthermore, the court noted that DeLuca’s arguments did “nothing to refute the trial court’s findings.” When reviewing DeLuca’s arguments regarding punitive damages, the court indicated that they were “incomplete” and ignored certain issues and/or merely “incorrectly assumed it would prevail on its assertion[s].” The court also believed that DeLuca “misapprehend[ed the court’s] standard of review” and misapplied (or misunderstood) certain constitutional requirements.
As stated above, the Superior Court’s decision is useful as guidance on what to do (or not do) when filing an appeal. First, when filing an appeal, make the issues on appeal concise, specific and clear, as opposed to sprawling, numerous and repetitive. Second, be sure to cite to the record at all times whenever possible, as the court will not do your work for you in this regard. Third, and this seems quite obvious, one’s arguments must be fully developed, based on the facts and evidence available, supported by authority and the record, consistent with the law and clearly explained and articulated to the court.