Coulter, J. v. Doerr, T. (memorandum)

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J-A08013-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 JEAN COULTER, Appellant v. THOMAS DOERR, TOD ZWIKL, DEBORAH ERBSTEIN, SUSAN LOPE, ELIZABETH SMITH AND DENNIS McCURDY, Appellees : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 679 WDA 2013 Appeal from the Order Entered March 18, 2013, In the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 13-000630. BEFORE: SHOGAN, OLSON and WECHT, JJ. MEMORANDUM BY SHOGAN, J.: FILED JUNE 20, 2014 pro se from the order granting the motion to dismiss filed in the Court of Common Pleas of Allegheny County in this matter brought against the Honorable Thomas Doerr, Tod Zwikl, Deborah Erbstein, Susan Lope, Elizabeth Smith, and n appeal, Coulter challenges, inter alia For the reasons that follow, we affirm. As an ancillary matter, we also address whether a party has a right to oral argument before our Court. We hold that oral argument is not a matter of right and that the Court may deny, or limit the time allocated for, oral argument in its sole discretion. J-A08013-14 We summarize the protracted history of this case as follows.1 This the crime of aggravated assault against her minor daughter in the Butler County Court of Common Pleas. Butler County Children and Youth Services became involved, and court proceedings related to the minor child were January 12, 2011. Coulter was represented by several attorneys. Deborah Erbstein, Esquire, and behalf. Todd Zwikl, On June 12, 2009, Esquire, entered their However, on December 15, 2009, granted. When Coulter was not represented by counsel in the Butler County matters, she proceeded pro se. Susan Lope, Esquire, and Elizabeth Smith, Guardian ad Litem, respectively. Dennis McCurdy, Esquire, was counsel for Butler County Children and Youth Services. Judge Doerr presided over the custody action, which ultimately r parental rights to her daughter. 1 We note that there are six other related appeals before this panel. Nos. 582 WDA 2013, 583 WDA 2013, 584 WDA 2013, 585 WDA 2013, 586 WDA 2013, and 678 WDA 2013. These appeals have been decided in separate decisions filed concurrently with this Memorandum. -2- J-A08013-14 Prior and subsequent to filing the instant matter, Coulter filed multiple complaints in Allegheny County against persons and entities involved in the Butler County proceedings. Coulter has also filed numerous and duplicative appeals with this Court over the past several years. (See, e.g., In the Interest of A.C., No. 555 WDA 2011, slip op. (Pa. Super. filed Mar. 12, 2012); Wilder & Mahood, P.C. v. Coulter, No. 1373 WDA 2010, slip op. (Pa. Super. filed Feb. 22, 2012); In re Adoption of A.S.C., 2011 Pa. Super. Lexis 5472 (Pa. Super. 2011) (unpublished memorandum); In re Adoption of A.C., 23 A.3d 584 (Pa. Super. 2010) (unpublished memorandum); In re A.C., 23 A.3d 576 (Pa. Super. 2010) (unpublished memorandum)). Coulter claims that the termination proceedings in Butler County were unjust, that various persons conspired to deprive her of her rights. Coulter has also claimed civil rights violations. In addition, Coulter initiated multiple actions in the United States District Court for the Western District of Pennsylvania prior to filing this matter in state court. These actions arose out of the same Butler County proceedings. The federal court defendants were sued due to their particip federal complaints were dismissed with prejudice by the United States District Court. The United States District Court found Coulter to be a -3- J-A08013-14 vexatious litigant and prohibited her from filing additional civil actions relating to or arising from the state court proceedings involving her criminal conviction and the subsequent termination of her parental rights. See, e.g., Coulter v. Ramsden, et al., 2012 WL 6592597 (W.D.Pa. 2012). pursuant to Pa.R.C.P. 233.1 on March 18, 2013. Coulter filed a petition for reconsideration, which the trial court denied. This appeal followed. Coulter presents the following issues for our review, which we have renumbered for ease of disposition: [1]. COMPLAINT PURSUANT TO RULE 233.1 BE OVER-TURNED BECAUSE THE TRIAL COURT DISMISSED DESPITE THE FACT THAT THE PREVIOUS DECISION DID NOT RESOLVE OR EVEN [2] MUST REMAND TO AN UNBIASED COURT BE ORDERED TO DEVELOP A RECORD WITHOUT PREJUDICE, TO PERMIT VIOLATION OF LOCAL RULES AND BIAS/DISABILITY OF THE TRIAL COURT, RESULTED IN A RECORD OF IRRELEVANT AND/OR FORBIDDEN FACTS AND DEVOID OF FACTS RELATED TO - TO CORRECT FUNDAMENTAL INJUSTICE AND ASSURE DUE PROCESS? [3]. MUST THE DECISIONS OF THE TRIAL COURT BE OVERTURNED BECAUSE THE TRIAL COURT WAS WITHOUT JURISDICTION, DUE TO ASSIGNMENT OF A SENIOR JUDGE IN VIOLATION OF STATUTE, RULES AND THE PENNSYLVANIA CONSTITUTION? [4]. DOES RULE 233.1 VIOLATE EQUAL PROTECTION, AS IT HOLDS PRO SE PLAINTIFFS TO A MORE STRINGENT STANDARD THAN PLAINTIFFS REPRESENTED BY LICENSED COUNSEL? -4- J-A08013-14 [5]. DO THE PRACTICES AND PROCEDURES IN PLACE IN CIRCUMSTANCE REQUIRES THAT THE DECISIONS OF THE - pursuant to Pa.R.C.P. 233.1 must be overturned because, while the trial court properly determined that 42 Pa.C.S.A. § 5103(b) applied, the trial in federal court did not resolve, or even consider, state claims. Appellant Brief at 14-18. Coulter insinuates that her case should have been transferred from federal court pursuant to 42 Pa.C.S.A. § 5103(b) because the federal court merely determined that it lacked subject matter jurisdiction over the state claims presented. Upon review, we conclude that this issue does not merit relief. In 42 Pa.C.S.A. § 5103, the Pennsylvania Legislature addressed the transfer of matters which have been filed in improper courts. The pertinent language of the statute provides as follows: § 5103. Transfer of erroneously filed matters. (a) General rule. -- If an appeal or other matter is taken to or brought in a court or magisterial district of this Commonwealth which does not have jurisdiction of the appeal or other matter, the court or magisterial district judge shall not quash such appeal or dismiss the matter, but shall transfer the record thereof to the proper tribunal of this Commonwealth, where the appeal or other matter shall be treated as if originally -5- J-A08013-14 filed in the transferee tribunal on the date when the appeal or other matter was first filed in a court or magisterial district of this Commonwealth. A matter which is within the exclusive jurisdiction of a court or magisterial district judge of this Commonwealth but which is commenced in any other tribunal of this Commonwealth shall be transferred by the other tribunal to the proper court or magisterial district of this Commonwealth where it shall be treated as if originally filed in the transferee court or magisterial district of this Commonwealth on the date when first filed in the other tribunal. (b) Federal cases. -- (1) Subsection (a) shall also apply to any matter transferred or remanded by any United States court for a district embracing any part of this Commonwealth. In order to preserve a claim under Chapter 55 (relating to limitation of time), a litigant who timely commences an action or proceeding in any United States court for a district embracing any part of this Commonwealth is not required to commence a protective action in a court or before a magisterial district judge of this Commonwealth. Where a matter is filed in any United States court for a district embracing any part of this Commonwealth and the matter is dismissed by the United States court for lack of jurisdiction, any litigant in the matter filed may transfer the matter to a court or magisterial district of this Commonwealth by complying with the transfer provisions set forth in paragraph (2). (2) Except as otherwise prescribed by general rules, or by order of the United States court, such transfer may be effected by filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of this Commonwealth. The pleadings shall have the same effect as under the practice in the United States court, but the transferee court or magisterial district judge may require that they be amended to conform to the practice in this Commonwealth. -6- J-A08013-14 Section 5535(a)(2)(i) (relating to termination of prior matter) shall not be applicable to a matter transferred under this subsection. 42 Pa.C.S.A. § 5103(a), (b) (emphasis added). As a prefatory matter, we note that our review of the certified record before us reflects that Coulter initiated the instant matter in the Court of Common Pleas of Allegheny County at Docket Number GD-13-0630 with the filing of a twelve-page complaint on January 8, 2013. Record Entry 1. Previously, Coulter filed multiple complaints for civil action in the United States District Court for the Western District of Pennsylvania, which were docketed at D.C. Civ. No. 11-cv-1201; D.C. Civ. No. 12-cv-0060; D.C. Civ. No. 12-cv-0338; D.C. Civ. No. 12-cv-0641; D.C. Civ. No. 12-cv-0978; D.C. Civ. No. 12-cv-1050; D.C. Civ. No. 12-cv-1241; D.C. Civ. No. 12-cv-1461. Record Entry 9 at Exhibits B - I. Our thorough review of the multiple documents filed in both courts indicates that they all stem from the termination of parental rights proceedings, which occurred in Butler County and include the same and related defendants. to a lack of jurisdiction lacks merit. We take notice of the decision rendered by the United States Court of Appeals for the Third Circuit, which addressed C No. 12-cv-00978, and is reflective of the fact that the federal court did not dismiss the matter on the basis of a lack of jurisdiction. -7- Coulter v. J-A08013-14 Ramsden, et al., 510 Fed. Appx. 100 (3rd Cir. 2013). The following statements contained within the decision of the Third Circuit Court of Appeals are of note: Notwithstanding the reference to lack of subject matter basis of immunities and because she was unable to plead enough facts to state a claim to relief that was plausible on its face. Id. at 103. insufficient to suggest that a conspiratorial agreement existed among the defendants. Id. The allegations in the complaint against her attorneys amount to nothing more than assertions of professional negligence. Id. at 104. Thus, to the extent that Coulter claims that the instant matter should be considered to be a transfer from federal court, pursuant to 42 Pa.C.S.A. § 5103(b)(1), such argument fails because it is evident that the complaint solely due to a lack of jurisdiction, we observe that Coulter failed to transfer her case from federal court properly as contemplated by 42 Pa.C.S.A. § 5103(b)(2). Our review of the record reflects that Coulter of the final judgment of the United States -8- J-A08013-14 allegation that the Court of Common Pleas of Allegheny County erred in not accepting the matter as being transferred from federal court lacks merit. argument fails. We review this claim under the following standard: To the extent that the question presented involves interpretation of rules of civil procedure, our standard of review is de novo. To the extent that this question involves an exercise of the trial standard of review is abuse of discretion. Judicial discretion requires action in conformity with law on facts and circumstances before the trial court after hearing and consideration. Consequently, the court abuses its discretion if, in resolving the issue for decision, it misapplies the law or exercises its discretion in a manner lacking reason. Similarly, the trial court abuses its discretion if it does not follow legal procedure. Sigall v. Serrano, 17 A.3d 946, 949 (Pa. Super. 2011) (internal citations omitted). Rule 233.1 provides, in relevant part, as follows: Rule 233.1. Frivolous Litigation. Pro Se Plaintiff. Motion to Dismiss (a) Upon the commencement of any action filed by a pro se plaintiff in the court of common pleas, a defendant may file a motion to dismiss the action on the basis that (1) the pro se plaintiff is alleging the same or related claims which the pro se plaintiff raised in a prior action against the same or related defendants, and -9- J-A08013-14 (2) these claims have already been resolved pursuant to a written settlement agreement or a court proceeding. * * * (c) Upon granting the motion and dismissing the action, the court may bar the pro se plaintiff from pursuing additional pro se litigation against the same or related defendants raising the same or related claims without leave of court. Pa.R.C.P. 233.1(a), (c). The explanatory comment to Rule 233.1 provides as follows: It has come to the attention of the Supreme Court that certain litigants are abusing the legal system by repeatedly filing new litigation raising the same claims against the same defendant even though the claims have been previously adjudicated either through settlement or through court proceedings. New Rule 233.1 provides relief to a defendant who has been subjected to this type of repetitive litigation. While attorneys are subject to the rules of disciplinary procedure, no analogous rule exists to curb this type of abuse when done by a pro se party. Upon the filing of an action by a pro se plaintiff, a defendant may file a motion to dismiss a pending action provided that (1) the pro se plaintiff is alleging the same or related claims against the same or related defendants, and (2) the claims have already been resolved pursuant to a settlement agreement or a court proceeding. The new rule also gives the trial court discretion to bar the pro se litigant from filing further litigation against the same or related defendants raising the same or related claims without leave of court. Pa.R.C.P. 233.1, Cmt. In Gray v. Buonopane, 53 A.3d 829 (Pa. Super. 2012), a panel of this Court addressed the obvious intent behind, and applicability of, Rule 233.1 as follows: -10- J-A08013-14 Rule 233.1 was promulgated by our Supreme Court in 2010 to stem a noted increase in serial lawsuits of dubious merit filed by pro se litigants disaffected by prior failures to secure relief for injuries they perceived but could not substantiate. Accordingly, the drafting committee constructed the Rule with attention to potential manipulation of the legal process by those not learned in its proper use, seeking to establish accountability for pro se litigants commensurate with that imposed upon members of the Bar. Thus, the Rule operates to spare potential defendants the need to defend spurious claims, first, by allowing the expeditious dismissal of duplicative pro se actions and, second, by empowering the trial court to ban the pro se commencement of further actions against such defendants. of our Supreme Court's intent in the summary proceedings for dismissal substantially less exacting than those required by the Rules of Court for counseled actions, as well as the absence from the language of any of the elements encompassed under the doctrines of res judicata and collateral omission of any reference to existing procedures under the Rules for obtaining judgment prior to trial, see, e.g., Pa.R.C.P. 1028(a)(4) (Preliminary Objections (Demurrer)), 1034 (Judgment on the Pleadings), 1035.2 (Summary Judgment). Indeed, the very fact that Rule 233.1 was promulgated in the presence of this series of rules and procedures, that by design tests every aspect of the legal and claim, announces the Supreme the Court saw no reason to expose already beleaguered defendants to the demands of extended litigation and the rigor of technical procedural rules for summary disposition when the claims at issue have already been addressed in a substantive manner and resolved. * * * Rule nor the explanatory comment mandate the technical identity of parties or claims imposed by res judicata or collateral estoppel; rather, it merely requires that the parties and the related -11- J-A08013-14 resolved These two terms are noteworthy in their omission of the technical precision otherwise associated with claim and issue under the purview of those doctrines, Rule 233.1 requires only that they be sufficiently related to inform the trial court, in the exercise of its discretion, whether the plaintiff's claim has in fact that the matter ha[s] been pro se litigant is availed of a chance to address his claim subject to the contractual guarantee of a settlement agreement or to the procedural safeguards that attend a court proceeding. It does the quality or capacity in the persons for or against whom the claim is made. In view of the circumstances under which the object to be attained, we find these multiple omissions indicative of the manner in which the Supreme Court intends Rule 233.1 to Gray, 53 A.3d at 835-836 (citations and come quotation marks omitted). As previously stated, in the federal court actions mentioned above, as well as in the instant action, Coulter acted pro se. In each of the cases, Coulter raised similar causes of action against the same or related defendants. The main difference between the claims Coulter raises now in comparison to the claims she raised in the federal court action is that, herein, she has altered language in a minor fashion and essentially alleges additional instances where the defendants failed to properly handle her case before the Court of Common Pleas of Butler County. -12- We further observe J-A08013-14 that the claims in the federal court action were resolved pursuant to a court proceeding, i.e., the federal court entered an order dismissing the action. Thus, the parties and claims in federal court and in the present action has been considered and resolved. Coulter has failed to establish that the trial court abused its discretion by dismissing her complaint pursuant to Rule 233.1 or by barring her from pursuing additional pro se litigation against Appellees pursuant to Pa.R.C.P. 233.1(c). Accordingly, we conclude that her contrary claim lacks merit. of general statements unsupported by any discussion and analysis of -19. Upon review of the argument presented by Coulter, we conclude that it is waived. Pennsylvania Rule of Appellate Procedure 2119 addresses argument section of appellate briefs and provides, in part, as follows: Rule 2119. Argument (a) General rule. The argument shall be divided into as many parts as there are questions to be argued; and shall have . . . such discussion and citation of authorities as are deemed pertinent. Pa.R.A.P. 2119(a). -13- the J-A08013-14 question an appellant raises is to be supported by discussion and analysis of Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super. 2002); Pa.R.A.P. 2119(b). to these rules may be considered waived, and arguments which are not appropriately developed are waived. Arguments not appropriately developed include those where the party has failed to cite any authority in Lackner v. Glosser, 892 A.2d 21, 29-30 (Pa. Super. 2006) (citations omitted). This Court will not act as counsel and will not develop arguments on behalf of an appellant. Irwin Union National Bank and Trust Company v. Famous and Famous and ATL Ventures, 4 A.3d 1099, 1103 (Pa. Super. 2010) (citing Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007)). Moreover, we observe the Commonwealth Court, our sister appellate court, has aptly noted that ue spotting without analysis or legal citation to support an Boniella v. Commonwealth, 958 A.2d 1069, 1073 n.8 (Pa. Cmwlth. 2008) (quoting Commonwealth v. Spontarelli, 791 A.2d 1254, 1259 n.11 (Pa. Cmwlth. 2002)). -14- J-A08013-14 Brief at 18does contain reference to case law regarding contents of the certified record. However, completely lacking from this section is any discussion or developed analysis relevant to the issue. This lack of analysis precludes meaningful appellate review. Accordingly, because Cou to set forth any meaningful discussion of relevant legal authority, we conclude that the issue is waived. court should be overturned due to a l at 10her case in the court of common pleas was in violation of statute, rules, and the Pennsylvania Constitution. We conclude that this issue is waived. First, we observe that Coulter is not challenging the jurisdiction of the Court of Common Pleas of Allegheny County. Indeed, Coulter initiated her action in that court. As such, an allegation by Coulter that the court of common pleas lacked jurisdiction would be meritless. Rather, we consider case, i.e. was not properly appointed to his position as a senior judge of the Court of Common Pleas of Allegheny County. -15- J-A08013-14 not raised in the lower court are waived and cannot be raised for the first Hence, only claims properly presented in the lower court are preserved for appeal. Indeed, even issues of constitutional dimension cannot be raised for the first time on appeal. Estate of Fridenberg, 982 A.2d 68, 76 (Pa. Super. 2009) (citing Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008)). It is well established that trial judges must be given an party may not remain silent and afterwards complain of matters Strunk, 953 A.2d at 579 (citations omitted). It is the duty of the party asserting disqualification to file the petition in a timely fashion. Rizzo v. Haines, 555 A.2d 58, 70 (Pa. 1989). recusal motion that is not timely filed will be denied. Id A -settled that a party seeking recusal or disqualification must raise the objection at the earliest possible moment, or that party will suffer the consequence of being time barred Commonwealth v. Stafford, 749 A.2d 489, 501 (Pa. Super. 2000) (quotation marks and citations omitted) (emphasis added). In were preserved for review. Pa.R.A.P. 2117(c), 2119(e). Our review of the certified record reflects that Coulter failed to -16- J-A08013-14 his disposition of her case. Likewise, Coulter has failed to demonstrate where she has preserved this issue for appellate review. Accordingly, we are constrained to conclude that this issue is waived. In her next issue, Coulter contends that she is arguing that Pa.R.C.P. 233.1 violates the equal protection clause of the United States Constitution. App argument is waived. applies even if the issue raised for the first time on appeal is a constitutional question. ABG Promotions v. Parkway Publishing, Inc., 834 A.2d 613, 619 (Pa. Super. 2003) (citing Brown v. Philadelphia Tribune Co., 668 A.2d 159 (Pa. Super. 1995)). Our review of the record reflects that Coulter did not present any objection to the constitutionality or validity of Rule 233.1 to the trial court. -27. Similarly, she has failed to demonstrate where she has preserved this issue for review by this Court. Accordingly, this issue is waived, and we decline to address it. In her final issue, Coulter asserts that Appellees somehow manipulated the system of the scheduling of motions in the Court of Common Pleas of Allegheny County and arranged to have their motion to dismiss Co -17- J-A08013-14 -31. Coulter baldly asserts that Appellees circumvented the standard policies which resulting in the argument provides, verbatim, as follows: In the instant matter, on February 13, 2013, Counsel for Argument on Motion to Dismiss Pursuant to Pa.R.Civ.P. 233.1 on behalf of the defendants, CHRISTINE GALE and FRANK, GALE, BAILS, MURCKO & POCRASS, on the next available On March 1, 2013, Counsel for Defendant Lewis made a similar are/were made in direct violation of the practices and procedures of the Civil Division of the Allegheny County Court of Common Pleas, which do not involve employees of the court in the scheduling of the date and time of Motions such as these. that the court of common pleas place a pending motion to dismiss on the Finally, we observe that prior to the scheduled oral argument in this appeal, Appellees filed with this Court a request to have the above-captioned case and two other appeals brought by Coulter removed from the daily -18- J-A08013-14 standard argument list and be accepted as submitted on the briefs, which per curiam order filed February 21, 2014, this panel denied the request sought by Appellees. However, in that order, we directed the Superior Court Prothonotary and the Court Crier to schedule the argued cases for the expedited argument list on March 4, 2014, at 9:30 a.m. In addition, we excused Appellees from oral argument and permitted them to rely upon their briefs, if they so chose. We reiterate that oral argument is not a matter of right and that 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. Pennsylvania Rule of Appellate Procedure 2315 addresses oral argument and 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). Id. -19- Further reflective of this J-A08013-14 from oral argument all appeals in post-conviction relief cases. Submitted Cases. A. All post-conviction hearing cases shall be submitted on the briefs and record unless otherwise directed by the Court upon its own motion or upon application of a party. Published I.O.P. 65.36. Clearly, an entire class of cases is denied the opportunity to proceed to oral argument, as a matter of course. As such, our per curiam to the submitted list and permitted Coulter the opportunity to appear before this Court at oral argument, should not be considered as anything more than this Court granting Coulter a measure of courtesy in permitting her to appear at oral argument. Order affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 6/20/2014 -20-

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