IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Transcription

1 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Howard Kenneth Shapiro, : : Appellant : : v. : No. 319 C.D : Dale M. Lombardi, SylvanLabs, : Submitted: November 14, 2014 L.L.C., Secant Pharma, L.L.C. and : Enteron Therapeutics, L.L.C. : OPINION NOT REPORTED MEMORANDUM OPINION PER CURIAM FILED: February 4, 2015 Howard Kenneth Shapiro, pro se, appeals from the January 28, 2014 Order (Post-Trial Motion Order) of the Court of Common Pleas of Bucks County (trial court) denying Shapiro s eight Post-Trial Motions. Shapiro s Post-Trial Motions were in response to the trial court s September 3, 2013 verdict (Non-Suit Verdict) granting the Motion for Non-Suit (Motion) filed by Defendant Dale M. Lombardi, pro se, and Corporate Defendants SylvanLabs, L.L.C., Secant Pharma, L.L.C., and Enteron Therapeutics, L.L.C. (collectively, Defendants) and dismissing Shapiro s action. The trial court also awarded, in the Non-Suit Verdict, Corporate Defendants $1, towards their attorneys fees. 1 On appeal, Shapiro argues 1 The trial court issued an order on May 1, 2014 entering judgment on behalf of Defendants consistent with the Non-Suit Verdict and Post-Trial Motion Order, as well as directing Shapiro to pay the $1, to Corporate Defendants within thirty days. (Trial Ct. Order, May 1, 2014.)

2 that the trial court committed twenty failures of due process before, during, and after a two-day bench trial and, therefore, the trial court s Post-Trial Motion Order should be reversed, the trial court s imposition of attorneys fees should be set aside, the trial court s Non-Suit Verdict should be vacated, and Shapiro should be granted a new trial. 2 Discerning no error or abuse of discretion, we affirm. I. Proceedings before the Trial Court a. Pre-Trial Proceedings Shapiro filed a pro se, four-count civil action (Complaint) against Defendants alleging they breached certain intellectual property licensing agreements and committed fraud. (Trial Ct. Op. at 3.) Shapiro sought more than one million dollars in damages. (Trial Ct. Op. at 3.) Shapiro alleged, in relevant part, that Defendants: defrauded Shapiro of his ownership interests in Corporate Defendants and of certain payments due to Shapiro under a royalty payment agreement; underpaid Shapiro for certain patent work he performed on their behalf; and breached their obligation to maintain the status of one of Shapiro s patents in good standing. Shapiro further asserted that Lombardi impermissibly paid him with a personal check for work Shapiro performed for Corporate Defendants. Defendants filed answers denying the Complaint s allegations. 2 It appears that this appeal does not fall within this Court s appellate jurisdiction as set forth in Section 762 of the Judicial Code, 42 Pa. C.S However, because Defendants did not timely object to this Court s jurisdiction as required by Rule 741 of the Pennsylvania Rules of Appellate Procedure, this Court s jurisdiction is perfected, and we will consider Shapiro s appeal. See Pa. R.A.P. 741 (providing that unless an appellee objects to an appellate court s jurisdiction on or before the last day to file the record, the jurisdiction of that appellate court is perfected unless the court orders otherwise). 2

3 On April 5, 2013, Defendants notified Shapiro that they intended to certify the matter for trial and, on June 26, 2013, the Complaint was certified ready for trial. (Trial Ct. Op. at 1.) On July 18, 2013, Shapiro received notice that his Complaint was listed for trial. (Trial Ct. Op. at 1.) The matter was scheduled for a bench trial on Thursday, August 29, Shapiro requested a continuance on August 9, 2013, but the trial court s Court Administration denied the request. (Trial Ct. Op. at 1-2.) b. Bench Trial on the Complaint At the beginning of the bench trial, Shapiro informed the trial court that he was not prepared to proceed and filed four motions for a continuance. Shapiro explained that he had not completed his trial preparation because he had filed eleven motions with the trial court between August 2 and August 12, had no exhibits with him because he took the train to the hearing, and had been unable to bring his out-of-town witnesses because he had not received sufficient advanced notice of his trial date. (Trial Ct. Op. at 2.) Defendants objected to a continuance. (Trial Ct. Op. at 2.) The trial court denied the motions, noting that Shapiro had been given far more notice of his hearing date than most litigants and had received notice of the specific date and time of the August 29, 2013 hearing well in advance of that date. (Trial Ct. Op. at 2.) The trial court observed that, instead of preparing for trial, Shapiro spent his time drafting formal written motions and, while he claimed to be unlearned in the law, the papers filed with the trial court demonstrated that Shapiro understood court proceedings and was attempting to manipulate the system by requesting a continuance. (Trial Ct. Op. at 2, 4.) 3

4 After a discussion with Defendants, Shapiro agreed his witnesses were not necessary 3 and Defendants, at the trial court s request, agreed to allow Shapiro to use their documents to proceed with his case-in-chief as scheduled. (Trial Ct. Op. at 2-3.) The trial began as scheduled, but the trial court indicated the trial would continue on Tuesday, September 3, (Trial Ct. Op. at 4.) This provided the parties with the opportunity to meet and exchange exhibits, as well as additional time to prepare their cases over the long Labor Day weekend. (Trial Ct. Op. at 4-5.) At the conclusion of the two-day bench trial, Defendants filed the Motion and asserted that Shapiro had not met his burden of proof on the Complaint s four counts. (Trial Ct. Op. at 5; Hr g Tr., September 3, 2013, at ) The trial court agreed, sustained the Motion, and dismissed the Complaint. (Trial Ct. Op. at 5.) Corporate Defendants asked the trial court to order Shapiro to pay for a portion of their attorneys fees as a sanction for Shapiro s conduct. The trial court agreed, and directed Shapiro to pay $1, towards Corporate Defendants attorneys fees, stating: I find as a fact that [Shapiro] was not prepared to go forward last Thursday when he was notified by the Court to be prepared to go. I find as a fact that this case has taken should have been able to be completed in one day, and the defendants have had to work multiple days in defending this because [Shapiro] was not ready to go 3 Shapiro sought to introduce these witnesses testimony to verify that he had sent certain s to Defendants because the witnesses had been blind copied on those s. (Trial Ct. Op. at 3.) Corporate Defendants informed the trial court that they intended to introduce those s into evidence and, upon further discussion with the [trial c]ourt, [Shapiro] confirmed that those witnesses were not necessary. (Trial Ct. Op. at 3.) 4 The trial court indicates in its opinion that it continued the hearing to September 4, 2013, (Trial Ct. Op. at 4); however, the hearing transcript reflects that the hearing resumed on September 3,

5 forward. I find that there was no basis when the evidence was presented to go forward on various counts, yet there was more evidence put in on them or attempted to [be] put in on them. As a result, based on having a case that had no merit, pushing it forward not just one day but those two days, attorneys fees were spent by the [C]orporate [D]efendants. (Trial Ct. Op. at 5 (quoting Hr g Tr., September 3, 2013, at ).) c. Post-Trial Proceedings Shapiro filed eight Post-Trial Motions, each requesting the trial court to reverse and withdraw that part of its Non-Suit Verdict directing Shapiro to pay $1, in attorneys fees to Corporate Defendants. After oral argument, the trial court denied Shapiro s Post-Trial Motions, explaining that the Post-Trial Motions were meritless, time consuming, and... [Shapiro] has engaged in a pattern of conduct which has delayed this matter. (Post-Trial Motion Order.) Shapiro filed a one hundred and two page Notice of Appeal with this Court. At the trial court s direction, Shapiro filed a Concise Statement of Errors Complained of on Appeal (Statement) pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, Pa. R.A.P. 1925(b). Shapiro s Statement, which is sixty pages long, sets forth twenty alleged failures of due process by the trial court, many of which were not included in Shapiro s Post-Trial Motions. In its 1925(a) Opinion, the trial court initially noted that Shapiro had improperly filed his appeal with this Court. (Trial Ct. Op. at 6.) The trial court then explained that the Statement did not comply with Rule 1925(b) due to its 5

6 length and redundancy and, for those reasons, prevented the trial court from performing any meaningful review of many of the claims therein. (Trial Ct. Op. at 7.) However, the trial court stated that it would review the issues Shapiro raised in the eight Post-Trial Motions based upon the assumption that those issues were preserved somewhere within the sixty page Statement, but it would not consider any other issues pursuant to Rule 227.1(b)(2) of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No (b)(2) (stating that [g]rounds not specified [in post-trial motions] are deemed waived ). (Trial Ct. Op. at 7-8.) The trial court further noted that Shapiro failed to preserve [appellate] review of the merits of this case in the [P]ost-[T]rial [M]otions. (Trial Ct. Op. at 21.) Consequently, the trial court addressed only the issues Shapiro raised in his Post-Trial Motions and concluded that it did not err or abuse its discretion in its rulings on those issues. This matter is now ready for this Court s review. 5 II. Shapiro s Appeal to this Court In his appeal, Shapiro raises twenty failures of due process that he alleges the trial court committed before, during, and after the trial in this matter. Shapiro s appellate brief offers little legal argument on these issues but incorporates, by reference, the arguments he set forth in his one hundred and two page Notice of 5 When reviewing the trial court s denial of post-trial motions, our scope of review is limited to determining whether the trial court abused its discretion or committed an error of law. Commonwealth ex rel. Corbett v. Manson, 903 A.2d 69, 73 n.4 (Pa. Cmwlth. 2006). Moreover, this Court s review of the award of attorneys fees as a sanction is to determine whether the trial court abused its discretion in doing so. Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996). 6

7 Appeal and sixty page Statement. 6 Shapiro requests that this Court reverse both the Post-Trial Motion Order and the Non-Suit Verdict, and direct the trial court to hold a new trial on the Complaint. As observed by the trial court in its 1925(a) Opinion, not all of the twenty issues Shapiro appeals to this Court were raised in his Post-Trial Motions. Moreover, a review of the Post-Trial Motions reveals they do not include any challenge to the trial court s grant of a non-suit in Defendants favor. Rather, each Post-Trial Motion requested the trial court to reconsider, reverse, and withdraw its decision to impose attorneys fees on Shapiro. It is well-settled that an issue may not be considered on appeal if it was not raised in an appellant s post-trial motions filed with the trial court. Linder v. City of Chester, 78 A.3d 694, 696 (Pa. Cmwlth. 2013); Pa. R.C.P. No (b)(2). Issues must be raised and preserved at all stages of litigation in order to be reviewable by an appellate court. Schmidt v. Boardman Company, 11 A.3d 924, (Pa. 2011). Although we understand that it may be difficult for a pro se litigant to comply with court rules and procedures, particularly in the required timeframes, those rules and procedures are meant to focus a trial court s review of alleged errors, thereby assisting judicial economy, and provide an opportunity for a court to remedy any error it may have made in the underlying proceedings. In re F.C. III, 2 A.3d 1201, (Pa. 2010). The Pennsylvania Supreme Court has 6 For example, Shapiro states The essential issue of my [failure of due process] number 5 was stated in paragraphs (15) and (17) of my Notice of Appeal and then further defined in paragraphs (52), (56), (57) and (59) of my Statement.... (Shapiro s Br. at 14.) 7

8 explained that requiring an issue to be preserved before the trial court is based upon the foundational principles that preservation advances the orderly and efficient use of our judicial resources and a trial court should be provided with an opportunity to correct its errors as early as possible. Id. Being bound by our precedent and rules of procedure, we will only review on appeal those issues Shapiro raised in his Post-Trial Motions. 7 7 The twenty issues Shapiro raises on appeal are difficult to discern from his brief, the one hundred and two page Notice of Appeal, and sixty page Statement. From our reading, it appears Shapiro asserts that the trial court and Defendants violated court procedures and Shapiro s due process rights in various ways before, during, and after the trial on the Complaint. A sampling of the issues raised include allegations ranging from Corporate Defendants counsel s alleged falsification of certain filings by having someone else sign his name on those filings, to the trial court having a double standard for the parties, holding Shapiro to a higher standard, and rephrasing two of Shapiro s counts in a manner allegedly harmful to his case. Shapiro further appears to argue that the trial court judge in this matter committed judicial misconduct and should have made more of an attempt to help Shapiro, a layperson, present his case. Although these issues were not preserved for appellate review, from our review of the original record and filings, it appears that Shapiro would not have prevailed on these issues had they been preserved and considered. We particularly note that our review of the transcripts in this matter reveals that the trial court did assist Shapiro in many ways and made numerous special accommodations to allow Shapiro to proceed with his Complaint. For example, once the trial court denied Shapiro s motions to continue the August 29, 2013 trial and learned that Shapiro was not prepared to proceed with his case-in-chief, the trial court could have dismissed the matter. Instead, the trial court obtained Defendants agreement to allow Shapiro to use their exhibits as his own; the trial court discussed with Shapiro whether he needed his absent witnesses to proceed with his case; and, ultimately, the trial court added a second day to the trial, which conveniently fell after a long-weekend. Shapiro argues that the trial court should have done more to help him with his case, but a trial court must remain impartial. See Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 162 (2000) ( [T]he trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores... that counsel would normally carry out. ); Fraisar v. Gillis, 892 A.2d 74, (Pa. Cmwlth. 2006) ( A court must remain neutral and cannot act as the attorney for pro se litigants or be responsible for bringing a litigant s suit into compliance with the rules of civil procedure. ). Shapiro further contends that some of the comments made by the trial court demonstrated bias or prejudice in Defendants favor. However, our review of the transcript reveals no such comments and any 8 (Continued )

9 a. Post-Trial Motion 1 In Post-Trial Motion 1, Shapiro challenges the trial court s award of $1, attorneys fees to Corporate Defendants because: Shapiro is indigent; it is impossible for him to pay those fees; the award went beyond any reasonable interpretation of the law ; and the award is the civil court version of cruel and unusual punishment. (Post-Trial Motion 1 1, ) Section 2503(7) of the Judicial Code 8 authorizes the award of reasonable attorneys fees as a sanction for, inter alia, a party s dilatory conduct during a trial. In reviewing a trial court s award of attorneys fees we may only consider whether the trial court palpably abused its discretion in making a fee award. Thunberg v. Strause, 682 A.2d 295, 299 (Pa. 1996). This Court will not disturb the award if the record supports the trial court s finding that the sanctioned party comment made by the trial court appears to reflect the trial court s ongoing frustration with the difficult situation with which it was presented in this matter. We discern no error or abuse of discretion in the manner in which the trial court proceeded under the circumstances. Finally, we address Shapiro s objection to Corporate Defendants brief filed with this Court because it does not contain a signed and dated verification statement and, as such, is not a part of the record and should be stricken. (Shapiro s November 3, 2013 Reply Br. at 3.) Our review of the Pennsylvania Rules of Appellate Procedure reveals no requirement that an appellate brief contain a verification statement and, therefore, we will consider the arguments set forth therein Pa. C.S. 2503(7). Section 2503(7) states [t]he following participants shall be entitled to a reasonable counsel fee[:].... Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of a matter. Id. Section 2503 focuses attention on the conduct of the party from whom attorney[s ] fees are sought and on the relative merit of that party s claims. Thunberg, 682 A.2d at 300. Such awards are an attempt to curtail the filing of frivolous or otherwise improper lawsuits. Id. 9

10 violated, inter alia, Section 2503 of the Judicial Code, absent an abuse of discretion. In re Estate of Schram, 696 A.2d 1206, 1213 (Pa. Cmwlth. 1997). Conduct is dilatory where the record demonstrates that [a participant] displayed a lack of diligence that delayed proceedings unnecessarily and caused additional legal work. In re Estate of Burger, 852 A.2d 385, 391 (Pa. Super. 2004). Here, the trial court held that, despite having ample notice of the August 29, 2013 hearing, Shapiro appeared but was not prepared to go forward on that date. (Trial Ct. Op. at 9.) The trial court concluded that, although it and Defendants provided Shapiro with numerous allowances, Shapiro had no legal or factual basis for his claims and required the trial court and Defendants to expend additional time and effort on a case that had no merit. (Trial Ct. Op. at 9-10.) The trial court further held that Shapiro demonstrated a total disregard for the judicial system throughout the trial, repeatedly offering his lack of legal training as an excuse for failing to comply with courtroom procedures. (Trial Ct. Op. at 9.) The trial court concluded that the $1, award was reasonable and the services Corporate Defendants counsel had to perform due to Shapiro s conduct were necessary. (Trial Ct. Op. at ) The trial court further held that there is no prerequisite that a party be able to pay the attorneys fees before awarding such fees as a sanction. (Trial Ct. Op. at 10, citing, e.g., Hopkins v. Byes, 954 A.2d 654, 659 (Pa. Super. 2008).) Our examination of the record and review of the trial court s rationale reveals that there was no abuse of discretion in the trial court s finding that Shapiro s conduct was dilatory and deserving of sanctions. Accordingly, we discern no reason to set aside the trial court s denial of Post-Trial Motion 1. 10

11 b. Post-Trial Motion 2 In Post-Trial Motion 2, Shapiro asserts the trial court improperly imposed the $1, in attorneys fees in order to prevent [Shapiro] from filing an appeal. (Post-Trial Motion 2 1.) Shapiro cites his recollection of the trial court s comments during the bench trial that it will award $1,000 in attorney s fees so that there will not be an appeal. 9 (Post-Trial Motion 2 11.) However, as noted by the trial court, the hearing transcript reveals that the trial court did not award attorneys fees to prevent Shapiro from appealing the trial court s decision. (Trial Ct. Op. at 11.) Rather, the trial court did so to protect Shapiro from Corporate Defendants bringing a Dragonetti action [10] against [Shapiro] for his having brought a completely frivolous action. 11 (Trial Ct. Op. at 12.) Therefore, the trial court properly denied Post-Trial Motion 2. 9 Shapiro notes that he could not obtain the transcripts in time to draft his Post-Trial Motions and, even if he could have, he would have been unable to afford them. (Post-Trial Motion ) 10 Section 8351 of the Judicial Code, commonly referred to as the Dragonetti Act, establishes a civil action for the Wrongful use of civil proceedings whereby [a] person who takes part in the... initiation or continuation of civil proceedings against another is subject to liability to the other if he acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing the proper... adjudication of the claim and the proceedings have terminated in favor of the person against whom they are brought. 42 Pa. C.S The trial court quoted the following passage from the hearing transcript: THE COURT: If I award any attorneys fees, I would only do so if it acts as a bar from any formal claim being made hereafter; in other words, under let s see if I can cite the statute Section 2503, attorneys fees can be awarded as a sanction against another participant for dilatory, obdurate or vexatious conduct during the 11 (Continued )

12 c. Post-Trial Motion 3 In Post-Trial Motion 3, Shapiro challenges the trial court s decision not to grant Shapiro s August 29, 2013 motion for a continuance so that Shapiro could finish [his] preparation of [his] entire court trial presentation, as well as Shapiro s three other motions to continue the bench trial. (Post-Trial Motion 3 1, 18.) Shapiro asserts that the trial court should have provided him an additional seven days to prepare his trial presentation instead of requiring him to make his opening statement on August 29, 2013 in the complete absence of any draft of a written statement, based only on [the trial court s] having granted a 30 minute recess so that [he] could review the [D]efendants exhibits. (Post-Trial Motion ) Moreover, Shapiro notes that although the trial court extended the trial to September 3, 2013, which provided him with some additional time, the trial court also required him to meet with Defendants on August 30, 2013 to give them his exhibits, which cut into that extra time. (Post-Trial Motion ) Finally, Shapiro argues that, in not giving him the seven days he requested, the trial court violated due process and its responsibility to level the playing field for him, an indigent party, and placed him at a disadvantage because he went to the September 3, 2013 [hearing] with no real understanding of court procedure. (Post-Trial Motion (internal quotation marks omitted).) pendency of any matter. I would not be inclined to award any attorneys[ ] fees under that section unless it was with the understanding that it would bar any other claim. Let me make it real clear: Do both defendants agree they are not going to file a second action? (Trial Ct. Op. at (quoting Hr g Tr., September 3, 2013, at ).) 12

13 A trial court s decision to grant or deny a continuance is exclusively within the discretion of the trial court, and this Court will not disturb the trial court s determination in the absence of an apparent abuse of discretion. Gillespie v. Department of Transportation, Bureau of Driver Licensing, 886 A.2d 317, 319 (Pa. Cmwlth. 2005). The trial court explained that, under Rule 216 of the Pennsylvania Rules of Civil Procedure, Pa. R.C.P. No. 216: the grounds for which a continuance will be granted are an agreement of all the parties in an action or of their attorneys, with approval by a court; the illness of a counsel of record, a material witness, or a party; an inability to subpoena a material witness or to take such a witness [s] testimony by deposition, commission or letters rogatory; such special grounds as a court in its discretion may allow; and the scheduling of counsel to appear at certain proceedings. Pa.[] R.C.P. [No.] 216[(A)]. Except for cause shown in special cases, only one application for a continuance on the basis of one of the grounds enumerated in the Rule may be made on behalf of one party or group of parties having similar interests. Pa.[] R.C.P. [No.] 216(B). (Trial Ct. Op. at ) The trial court concluded that none of the reasons Shapiro proffered for granting a continuance were sufficient grounds or cause to do so. (Trial Ct. Op. at 13.) Referencing Shapiro s explanation that he needed more time because he had spent ten days before the trial filing eleven court filings, the trial court stated that Shapiro ignore[d] the fact that the case was certified as ready for Trial on June 26, 2013, and notice of the Trial listing had been provided to... Shapiro on July 18, Under the circumstances, he had more than ample time to organize his case for Court. (Trial Ct. Op. at 13.) The trial court further explained that Shapiro s lack of legal training did not entitle him to special treatment and that additional time would not have helped because, based on the evidence presented and Shapiro s admissions on cross-examination, it was clear that Shapiro s claims were without merit. (Trial Ct. Op. at ) We agree with 13

14 the trial court s analysis and conclude that it did not err or abuse its discretion in denying Post-Trial Motion 3. d. Post-Trial Motion 4 In Post-Trial Motion 4, Shapiro challenges the trial court s allowance of [Corporate Defendants attorney] to repeatedly interfere with [his] direct presentation even though [the attorney] was not formally offering an objection to the entry of a plaintiff s exhibit. (Post-Trial Motion 4 1, 11.) Shapiro asserts that Corporate Defendants buried their direct presentation into Shapiro s presentation by interrupting Shapiro and inserting remarks that should have been contained within [their] own direct presentation. (Post-Trial Motion (internal quotation marks omitted).) Therefore, Shapiro asserts, Defendants were not required to make Lombardi testify and he was not given the opportunity to cross-examine Lombardi. (Post-Trial Motion 4 14, 16.) The trial court explained that it denied Post-Trial Motion 4 because Shapiro was given ample opportunity to prove his case. (Trial Ct. Op. at 14.) According to the trial court, Shapiro s contention that he did not have an opportunity to crossexamine Lombardi was incorrect because: Shapiro could have called Lombardi as a witness, but did not; Shapiro bore the burden of proving the assertions in his Complaint; and Defendants had no obligation to present Lombardi as a rebuttal witness if they felt Shapiro had not met his prima facie case. (Trial Ct. Op. at ) 14

15 Our Supreme Court has stated that [i]n every lawsuit... the plaintiff is the first to begin, and if he does nothing he fails. If he makes a prima facie case, and nothing is done by the other side to answer it, the defendant fails. 500 James Hance Court v. Pennsylvania Prevailing Wage Appeals Board, 33 A.3d 555, 575 (Pa. 2011) (emphasis added) (citation and internal quotation marks omitted). Here, Defendants filed their Motion asserting Shapiro had not met his burden of proof, i.e., made a prima facie case, on any of the counts in his Complaint, and the trial court agreed. Therefore, Defendants were under no obligation to present any evidence, including Lombardi s testimony, in rebuttal. As the trial court pointed out in its opinion, Shapiro did not take the opportunity to call Lombardi as a witness during his own presentation, Defendants were not required to do so, and, because Lombardi was not called as a witness, he was never subject to Shapiro s cross-examination. (Trial Ct. Op. at ) We observe no legal error or abuse of discretion in the trial court s conclusion. Moreover, our review of the hearing transcripts reveals that Shapiro did have ample opportunity to present his case and that Defendants did not bury their direct presentation in Shapiro s presentation or improperly interrupt that presentation. Shapiro s presentation consisted of him taking the stand and reading directly from a prepared document. (Hr g Tr., September 3, 2013, at 10.) Shapiro s August 29, 2013 presentation consisted of almost fifty pages of the hearing transcript, and his presentation on September 3, 2013 consisted of over one hundred pages of the hearing transcript. On both days, Corporate Defendants counsel occasionally objected to the admission of some of Shapiro s exhibits or Shapiro s characterizations of the evidence he was presenting, but did not attempt to hinder 15

16 Shapiro s direct presentation. Thereafter, Defendants cross-examined Shapiro, challenging Shapiro s evidence and understanding of the facts he presented during his case-in-chief. In doing so, Defendants asked Shapiro to identify and testify about certain documents and s that challenged Shapiro s testimony, which were then admitted into evidence. In short, our review of the hearing transcripts revealed nothing improper that would require reversing the Post-Trial Motion Order or award of attorneys fees. Accordingly, we discern no error or abuse of discretion in the trial court denying Post-Trial Motion 4. e. Post-Trial Motions 5 and 6 In Post-Trial Motion 5, Shapiro asserts that the trial court violated court procedure and due process by first directing the parties to submit memorandum of law and then not requiring Defendants to present their memoranda. (Post-Trial Motion 5 1, (internal quotation marks omitted).) Relatedly, in Post-Trial Motion 6, Shapiro challenges the trial court s failure to enter [his] memorandum of law into the record until after having announced the verdict. (Post-Trial Motion 6 1, 11, 13 (emphasis in original) (internal quotation marks omitted).) The trial court explained that these Post-Trial Motions were based on Shapiro s misunderstanding of what occurred at the bench trial. (Trial Ct. Op. at 15.) At the August 29, 2013 trial, the trial court attempted to assist Shapiro to bring out certain facts that were necessary to his case and indicated that any legal principles the parties wanted to assert in their arguments had to be supported by legal authority. (Trial Ct. Op. at ) Specifically, the trial court stated: THE COURT: And then also on Tuesday I expect you, if I ask you a legal principle or a princip[le] of law, I expect 16

17 you to be able to cite a case to me or whatever else. Or if you don t cite a case to me or if you don t cite a specific statute or legal principle, I m going to take the position you re abandoning the argument because you haven t got any law to back it. (Trial Ct. Op. at 16 (quoting Hr g Tr., August 29, 2013, at 140).) Shapiro must have interpreted this statement as requiring the parties to file a memorandum of law in support of their positions, rather than the trial court indicating that the parties needed legal authority for their respective positions. However, as the trial court explained, Defendants had no obligation to rebut Shapiro s direct presentation or offer legal authority counter to Shapiro s positions if [Shapiro] could not meet his initial burden of proof. (Trial Ct. Op. at 16.) We agree with the trial court s explanation and, therefore, there was no error of law or abuse of discretion by the trial court in denying Post-Trial Motion 5. With respect to Post-Trial Motion 6, the trial court observed that the record reveals that it accepted Shapiro s memorandum of law before announcing its verdict. (Trial Ct. Op. at 16 & n.2.) Our review of the record confirms the trial court s observation and, therefore, the trial court neither erred nor abused its discretion in denying Post-Trial Motion 6. (Hr g Tr., September 3, 2013, at , 216.) f. Post-Trial Motion 7 In Post-Trial Motion 7, Shapiro asserts that the trial court violated court procedure and due process by indicating at the August 29, 2013 hearing that the presence of Shapiro s witness, Emma Clark Hill, was not needed at the trial and then not admitting two of Shapiro s exhibits, (P-15 and P-16), which were s 17

18 between Shapiro and a third party, because they were hearsay. (Post-Trial Motion 7 1, 11.) Shapiro contends that Ms. Clark Hill s testimony would have assisted in authenticating those exhibits. (Post-Trial Motion ) Shapiro notes that the trial court admitted similar hearsay evidence from Defendants. (Post-Trial Motion 7 13.) Shapiro further asserts that Defendants improperly certified this matter for trial and the matter should not have been scheduled for trial because Shapiro had discovery that he wanted to complete. (Post-Trial Motion ) The trial court gave several reasons for denying Post-Trial Motion 7. First, the trial court indicated that it was Shapiro, not the trial court, that stated that Ms. Clark Hill s testimony was not needed after discussing the matter with Defendants. 12 (Trial Ct. Op. at ) Second, the trial court noted that Exhibit P- 16, an between Shapiro and a third party, was inadmissible because it was hearsay to which Corporate Defendants properly objected. 13 (Trial Ct. Op. at 18.) 12 Shapiro indicated that, [u]nless the [D]efendants raise an issue, I do not need those witnesses at trial. (Hr g Tr., August 29, 2013, at 47.) Ms. Clark Hill was going to attest to the authenticity and the completeness and the accuracy of the records. (Hr g Tr. at 45.) 13 The trial court indicated in its opinion that Exhibit P-15 was admitted into the record, (Trial Ct. Op. at 18); however, Corporate Defendants also objected to Exhibit P-15 as hearsay, and the trial court excluded that on that basis, (Hr g Tr., September 3, 2013, at 75-77, 195). Notably, Ms. Clark Hill s presence would not have altered the admissibility of Exhibits P-15 and P-16 because she was not the third-party author of those s. As for Shapiro s complaint that some of Defendants exhibits that appeared to include hearsay were admitted, the trial court explained that Shapiro did not object to their admission and, therefore, any such objection was waived. (Trial Ct. Op. at 18 & n.4 (citing Jones v. Treegoob, 249 A.2d 352, 354 (Pa. 1969) (indicating that where evidence is introduced and admitted without objection, any objection to that evidence is waived).) A review of the record reveals that Shapiro did question why Defendants were permitted to submit such evidence; however, those documents were s from Defendants to Shapiro, which included some third-party statements, and were not being 18 (Continued )

19 Third, with respect to Shapiro s discovery request, the trial court concluded that discovery had been properly closed because Defendants filed a Rule 261 Notice 14 presented for the truth of the third-party statements, but for the statements made by Defendants to Shapiro. (Hr g Tr. at , ) 14 This refers to Bucks County Local Rule 261, which governs placing cases on a trial list, and provides: (a) All cases which under applicable rules are for trial by jury shall be ordered on the general trial list by praecipe. The praecipe shall state the court and number of the case and the names of the parties and their attorneys, and shall contain an express certification by counsel that the case is at issue and ready for trial. Unless the praecipe shall contain such certification, the prothonotary shall refuse to accept the same or to place the case upon the general trial list. A conformed copy of such praecipe and certification shall be given to the court administrator, opposing counsel and unrepresented parties within forty-eight hours. (b) Before certifying a case as being ready for trial, counsel for the party intending such certification shall serve a certification notice upon opposing counsel and any unrepresented parties. The certification notice shall be in writing and shall indicate the intention to certify the case as being ready for trial and to order the same onto the general trial list. Within fifteen days after the service thereof, the attorney or party receiving the certification notice shall state his intention to pursue discovery, if he so desires, by sending to all counsel and any unrepresented parties, a discovery notice. The discovery notice shall be in writing and shall designate the scope and nature of any intended discovery. All discovery shall be completed within sixty days of the transmittal of the discovery notice. Upon completion of discovery or the expiration of the sixty-day discovery period, whichever shall first occur, or, if no discovery notice is transmitted, at the expiration of fifteen (15) days after service of the certification notice, any party may order the case on the general trial list. Thereafter, except for routine pretrial physical examinations or depositions to be used at trial in accordance with the provisions of Pennsylvania Rules of Civil Procedure 4020(a)(3) and 4020(a)(5), neither of which shall delay the trial of the case, no discovery shall be available to any party except by leave of court upon cause shown. In any event, no discovery shall be allowed in appeals from awards of arbitrators or awards of viewers except by leave of Court upon cause shown. All applications for the allowance of additional time to initiate or complete discovery shall be made to and disposed of 19 (Continued )

20 after there had been no discovery activity for thirteen months, Shapiro offered no reasonable basis for extending discovery, and, while Shapiro objected to the Rule 261 Notice, he did not conduct any discovery during the time frame set forth in Rule 261. (Trial Ct. Op. at ) These reasons are supported by the record and, therefore, we hold that the trial court did not err or abuse its discretion by denying Post-Trial Motion 7. g. Post-Trial Motion 8 In Post-Trial Motion 8, Shapiro challenges the trial court s refusal to admit a certain number of Shapiro s exhibits (Exhibits P-31-P-48), which were documents that he intended to introduce and use during his cross-examination of Lombardi. (Post-Trial Motion 8 1, ) Shapiro reiterates his assertions that he was never given an opportunity to cross-examine Lombardi, which he indicates would have represented almost one-half of his trial presentation, because Defendants were not required to go forward with their direct presentation. (Post-Trial Motion ) Shapiro maintains that the trial court violated due process by allowing Defendants to cross-examine him, but denying him the opportunity to crossexamine Lombardi and present his exhibits. (Post-Trial Motion 8 19.) As concluded above, there was no error or abuse of discretion in the trial court s holding that Shapiro was not denied the opportunity to cross-examine by the judge to whom the case has been assigned. Written notice of the intention to make such application shall be given to all counsel and unrepresented parties. See (emphasis added) (last visited December 29, 2014). 20

21 Lombardi. With regard to the documents Shapiro intended to present during that cross-examination, the trial court noted that Shapiro did not identify or introduce those exhibits during his direct presentation and, therefore, effectively rested his case without offering those exhibits. (Trial Ct. Op. at 20.) The trial court held that Defendants properly objected to Shapiro s attempt to introduce the exhibits after he had rested and because Shapiro had not provided copies of those exhibits to Defendants before the September 3, 2013 trial, as ordered by the trial court. (Trial Ct. Op. at 20; Hr g Tr., September 3, 2013, at , ) Thus, the trial court concluded that it correctly sustained Defendants objection to the admission of those documents and denied Post-Trial Motion 8. (Trial Ct. Op. at 20.) Having reviewed the record, we discern no error or abuse of discretion in the trial court s denial of Post-Trial Motion 8. III. Conclusion Although we recognize the difficulty pro se litigants may experience in preparing and presenting their cases, after reviewing the record in this matter, we conclude that the trial court did not err or abuse its discretion in denying Shapiro s eight Post-Trial Motions. Accordingly, we affirm the trial court s Post-Trial Motion Order. 21

22 IN THE COMMONWEALTH COURT OF PENNSYLVANIA Howard Kenneth Shapiro, : : Appellant : : v. : No. 319 C.D : Dale M. Lombardi, SylvanLabs, : L.L.C., Secant Pharma, L.L.C. and : Enteron Therapeutics, L.L.C. : PER CURIAM O R D E R NOW, February 4, 2015, the January 28, 2014 Order of the Court of Common Pleas of Bucks County, entered in the above-captioned matter, is hereby AFFIRMED.