Mark Ferry Auctioneers v. Newman (memorandum)

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J-A32015-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MARK FERRY AUCTIONEERS, INC., a Pennsylvania Corporation, and HARTLAND MACHINERY COMPANY, INC., a Pennsylvania Corporation, Appellees v. LAWRENCE NEWMAN, Individually, and CAROLINE NEWMAN, Individually, t/d/b/a BRIAR CLIFF FINANCIAL SERVICES, a Fictitious Name, Appellants : : : : : : : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 397 WDA 2012 Appeal from the Judgment entered on March 6, 2012 in the Court of Common Pleas of Westmoreland County, Civil Division, No. 786 of 2010 BEFORE: MUSMANNO, WECHT and COLVILLE*, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: March 18, 2013 Lawrence Newman ( Newman ), individually, and Caroline Newman, individually, t/d/b/a Briar Cliff Financial Services (collectively the Defendants ), appeal from the Judgment entered in favor of Mark Ferry Auctioneers, Inc. and Hartland Machinery Company, Inc. ( Hartland ) *Retired Senior Judge assigned to the Superior Court. J-A32015-12 (collectively the Plaintiffs ).1 We affirm. The factual history underlying this appeal is convoluted and well known to the parties. In the interest of judicial economy, we adopt by reference herein the facts as found by the trial court in its Decision and Order issued in support of the court s verdict. See Decision and Order, 10/18/11, at 2-16.2 In February 2010, the Plaintiffs filed a Complaint against the Defendants alleging misrepresentation.3 various theories of liability, including fraudulent Following a non-jury trial, the trial court found the Defendants liable to the Plaintiffs on the fraudulent misrepresentation count, 1 The Defendants purport to appeal from the trial court s February 6, 2012 Order denying their Motion for post-trial relief. An appeal properly lies from the entry of judgment, not from an order denying post-trial motions. See, e.g., Johnston the Florist, Inc. v. Tedco Constr. Corp., 657 A.2d 511, 514 (Pa. Super. 1995). Since the trial court s docket reveals that the Prothonotary entered Judgment on March 6, 2012, and the Defendants timely filed a Notice of appeal from the Judgment, there is no jurisdictional impediment to our review. 2 We note that the trial court did not issue a separate Pa.R.A.P. 1925(a) opinion in this case; rather, the court relied upon its October 18, 2011 Decision and Order in lieu of a Rule 1925(a) opinion. To the extent that the trial court s factual recitation includes credibility determinations and legal conclusions by the trial court, we will review those determinations in our analysis of the Defendants claims of error on appeal. 3 To succeed on a cause of action for fraudulent misrepresentation, a plaintiff must demonstrate the following elements by clear and convincing evidence: (1) [a] representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999) (citation omitted). -2- J-A32015-12 and entered a verdict in favor of the Plaintiffs in the amount of $23,089.80 in compensatory damages and $5,000.00 in punitive damages.4 The Defendants timely filed a post-trial Motion seeking judgment notwithstanding the verdict, which the trial court denied. On March 6, 2012, the trial court entered Judgment in favor of the Plaintiffs, after which the Defendants filed a timely Notice of appeal. On appeal, the Defendants raise the following questions for our review: 1. Did the Trial Court err in finding that the Defendants made a representation to [] Hartland regarding the ownership of the [e]quipment in question when the evidence was clearly to the contrary[?] 2. Did the Trial Court err in finding that a third party entity, PNC, had a perfected security interest in the [e]quipment in question, superior to that of the Defendants, despite [the] lack of any credible evidence submitted at trial to support such finding[?] 3. Did the Trial Court err in finding that a third party entity, PNC, had a superior perfected security interest in the [e]quipment sold by [the] Defendants to [] Hartland, when no evidence was properly admitted at trial to suggest that monies paid by [the] Plaintiffs to PNC amounted to anything more than a voluntary payment[?] 4. Did the Trial Court erroneously admit into evidence documents submitted by [the] Plaintiffs days after trial, over the objection of [the] Defendants, which were: (i) different than [the documents] offered at trial[,] which the Trial Court permitted [the] Plaintiffs to have authenticated after trial; (ii) offered through a witness who was neither a party to the 4 The trial court noted that its award applied only to plaintiff Hartland and its president, Dean Gearhart ( Gearhart ), as Gearhart was the only party in a contractual relationship with the [D]efendant[s]. Decision and Order, 10/18/11, at 19. -3- J-A32015-12 transaction nor had any knowledge of the documents; and (iii) despite sustaining [the] Defendants timely objection precluding such witness from authenticating such documents[?] 5. Did the Trial Court err in [awarding the Plaintiffs] $23,089.80 in compensatory [damages] and $5,000.00 in punitive damages when the evidence submitted at trial dictated that: (i) compensatory damages, if warranted at all, would have been an amount less than half that found[;] and (ii) that none of the conduct [sic] of the Defendants amounted to fraud[?] 6. Did the Trial Court err in finding that [the] Defendants warranted title to the [e]quipment in question despite language in their Quiet [sic] Claim Bill of Sale [that was] clearly to the contrary and consistent with provisions of 13 Pa.C.S.A. § 2312(b)[?] 7. Did the Trial Court err in failing to find that, as a matter of law, [] Hartland had the ability and duty, but failed to review the public record to ascertain what, if any, security interests may have existed in the [e]quipment in question, despite testimony of [Gearhart,] Hartland s principal officer[,] that he had concern[s] over its ownership, before agreeing to purchase it from [the] Defendants[?] Brief for the Defendants at 7-8 (issues renumbered).5 [O]ur appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, where the issue concerns a question of law, our scope of review is plenary. The Defendants Statement of Questions Involved spans two and one-half pages, in violation of Pa.R.A.P. 2116(a) (providing, in relevant part, that [t]he statement shall be no more than two pages ¦. ). Nevertheless, we will ignore this minor defect and address all of the Defendants issues on appeal. 5 -4- J-A32015-12 Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719, 721 (Pa. Super. 2012) (citation, brackets and ellipses omitted). Additionally, this Court has stated that, in considering a challenge to a non-jury verdict, [i]t is not the role of an appellate court to pass on the credibility of witnesses; hence[,] we will not substitute our judgment for that of the fact[-]finder. Thus, the test we apply is not whether we would have reached the same result on the evidence presented, but rather, after due consideration of the evidence which the trial court found credible, whether the trial court could have reasonably reached its conclusion. Fletcher-Harlee Corp. v. Szymanski, 936 A.2d 87, 92-93 (Pa. Super. 2007) (citation omitted). Initially, we note that, regarding the Defendants first issue, the Defendants have failed to comply with the Pennsylvania Rules of Appellate Procedure, in that they improperly (1) set forth their cursory argument in narrative form, which consists merely of conclusory statements that the trial court had erred; and (2) failed to provide citation to relevant legal authority or to cite to the record in support of their bald allegations of error. See Brief for the Defendants at 18-19. Based upon these defects, we could deem this issue waived on appeal. See Pa.R.A.P. 2119(a) (mandating that an appellant develop an argument with citation to and analysis of relevant legal authority); see also Pa.R.A.P. 2119(c) (providing that [i]f reference is made to the [] evidence ¦ or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter -5- J-A32015-12 referred to appears ¦. ); see also Papadoplos v. Schmidt, Ronca & Kramer, PC., 21 A.3d 1216, 1229 (Pa. Super. 2011) (finding waiver where the appellants advanced only a cursory argument in support of their issue and failed to cite to any pertinent legal authority). However, we will not find waiver and will briefly address the merits of the Defendants claim. In sum, the Defendants baldly allege that (1) [t]he [t]rial [c]ourt s finding in favor of the [Plaintiffs] was against the evidence and against the weight of the evidence[;] and (2) [t]he evidence established that [defendant Newman] legitimately believed [that he] had a first lien perfected security interest in the [e]quipment [in question.] Brief for the Defendants at 18, 19. Here, the trial court, as the fact-finder, considered the evidence presented at trial and found that defendant Newman had intentionally made several fraudulent, material misrepresentations to Gearhart, the president of Hartland, regarding the Defendants purported ownership interest in the equipment, and thus induced Gearhart to purchase the equipment. See Decision and Order, 10/18/11, at 8-12, 16. In making this factual finding, the trial court assessed the credibility of the witnesses and determined the weight to be accorded their testimony, and found that Newman had misrepresented his ownership interest in bad faith, and that Gearhart had justifiably relied upon Newman s false statements to Gearhart s detriment. See id. at 16, 19; see also Bortz, 729 A.2d at 560 (setting forth the -6- J-A32015-12 necessary elements to prevail on a cause of action for fraudulent misrepresentation). It is well-settled that an appellate court may not disturb the findings of a trial judge sitting as the finder of fact unless there is a determination that those findings are not based upon competent evidence. See Mastroni- Mucker v. Allstate Ins. Co., 976 A.2d 510, 519 (Pa. Super. 2009). Likewise, this Court is precluded from disturbing a fact-finder s credibility determinations. See Fletcher-Harlee Corp., 936 A.2d at 92-93; see also A.M. Skier Agency, Inc. v. Gold, 747 A.2d 936, 939 (Pa. Super. 2000). In the instant case, since the trial court s findings are supported by competent evidence of record, we may not disturb them. In their next three issues, which are closely related, the Defendants argue that the [Plaintiffs] failed to establish, by properly admitted evidence, that PNC Bank had any security interest in the [e]quipment[,] and the trial court erred in admitting evidence of PNC s alleged prior security interest in the equipment in the form of official financing statements (hereinafter the UCC-1 Filing Statements ) filed with the Pennsylvania Department of State pursuant to the Uniform Commercial Code ( UCC ). Brief for the Defendants at 19, 21-22. According to the Defendants, the trial court improperly ruled that the Plaintiffs were permitted to establish the authenticity of this evidence after the close of trial. Id. at 21-22. It is well established that the admission or exclusion of evidence is within the sound discretion of the trial court. In reviewing a challenge to the -7- J-A32015-12 admissibility of evidence, we will only reverse a ruling by the trial court upon a showing that it abused its discretion or committed an error of law. Schuenemann v. Dreemz, LLC, 34 A.3d 94, 99 (Pa. Super. 2011) (citation omitted). At the trial in this matter, the trial court ruled that, since the UCC-1 Financing Statements were official documents filed with the Department of State, the Plaintiffs were permitted to authenticate these documents after the close of trial, pursuant to the dictates of 42 Pa.C.S.A. § 6103. See N.T., 8/31/11, at 136-42, 292-93.6 Section 6103 provides, in relevant part, that [a]n official record kept within this Commonwealth by any ¦ government unit, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, ¦ or if there is no such officer, by[] [t]he Department of State, in the case of any Commonwealth agency. 42 Pa.C.S.A. § 6103(a)(1) (emphasis added); see also id. § 6104(a) (providing that [a] copy of a record of governmental action or inaction authenticated as provided in section 6103 ¦ shall be admissible as evidence that the governmental action or inaction disclosed therein was in fact taken or omitted. ). In the instant case, shortly following the conclusion of trial, the Plaintiffs submitted documentation 6 signed by an agent of the At trial, the Plaintiffs presented deposition testimony and exhibits that pertained to the UCC-1 Filing Statements, which the trial court considered in ruling that the Plaintiffs were permitted to establish the authenticity of these official documents following the trial. See N.T. (trial), 8/31/11, at 127-32, 140-42; see also N.T. (deposition), 8/9/11, Exhibits 1-6. -8- J-A32015-12 Department of State that certified the authenticity of the UCC-1 Filing Statements. Since it is undisputed that the UCC-1 Filing Statements were official documents filed with the Department of State, these documents were clearly admissible evidence under section 6103. See 42 Pa.C.S.A. § 6103(a)(1). Moreover, the Defendants cite to no relevant law, nor do they advance any persuasive arguments, that the trial court lacked the authority to permit the Plaintiffs to submit proof of the authenticity of these official documents after trial. Accordingly, the Defendants challenge to the trial court s admission of the UCC-1 Filing Statements to establish PNC s perfected security interest in the equipment lacks merit. In their fifth issue, the Defendants contend that the trial court erred in its award of compensatory and punitive damages in favor of the Plaintiffs. Brief for the Defendants at 20-21. Regarding the Defendants challenge to the compensatory damages award, the Defendants set forth only three sentences of argument and do not cite to any legal authority or the record. Based upon these defects, we are compelled to find that the Defendants have waived their challenge in this regard. See Papadoplos, 21 A.3d at 1229 (finding waiver where the appellants advanced only four sentences of argument in support of their claim and failed to cite to any legal authority); see also Pa.R.A.P. 2119(a). However, even if we did not find waiver, we would affirm based on the trial court s explanation of how it calculated the -9- J-A32015-12 amount of compensatory damages due to the Plaintiffs. See Decision and Order, 10/18/11, at 17-18. Further, to the extent that the Defendants argue that the trial court erred in awarding the Plaintiffs $5,000 in punitive damages, this claim is predicated upon the Defendants allegation that there was no evidence presented that their conduct was fraudulent. See Brief for the Defendants at 20. We have already concluded that the trial court properly found that the conduct of the Defendants was, in fact, fraudulent, and we will not disturb this finding on appeal. Additionally, we note that the trial court explained its rationale for awarding the Plaintiffs punitive damages in its Decision and Order, which we incorporate herein by reference. See Decision and Order, 10/18/11, at 18-19. Accordingly, the Defendants are not entitled to relief on this issue. The Defendants next contend that [t]he Trial Court ruled contrary to applicable law with respect to the finding that [the Plaintiffs] warranted title to the [e]quipment[,] since, in this case[,] warranty of title was specifically disclaimed in both the language and title of the Quit Claim Bill of Sale. Brief for the Defendants at 21. In its Decision and Order, the trial court addressed this claim and determined that it lacked merit. See Decision and Order, 10/18/11, at 1214. Specifically, the trial court found that, under the circumstances of this transaction, even though the document was titled Quit Claim Bill of Sale, it was insufficient to disclaim the warranty of title under section 2312 of the - 10 - J-A32015-12 UCC.7 See Decision and Order, 10/18/11, at 13-14; see also Sunseri v. RKO-Stanley Warner Theatres, Inc., 374 A.2d 1342, 1344-45 (Pa. Super. 1977) (in a contract dispute alleging that the appellant had breached the warranty of title in its sale of equipment to the appellee, holding that the language in the Bill of Sale prepared by the appellant was insufficient to disclaim the warranty of title under section 2312 of the UCC because the document did not include specific language to that effect or set forth a positive warning or exclusion in regard to the status of title[.] ). After review of the parties briefs and the certified record, we affirm on the basis of the trial court s sound rationale as to this issue. See Decision and Order, 10/18/11, at 12-14. Finally, the Defendants argue that the trial court erred in failing to find that Gearhart, on behalf of plaintiff Hartland, had a duty to review the 7 Section 2312 provides, in relevant part, as follows: (a) General rule. --Subject to subsection (b)[,] there is in a contract for sale a warranty by the seller that: (1) the title conveyed shall be good, and its transfer rightful; and (2) the goods shall be delivered free from any security interest or other lien or encumbrance of which the buyer at the time of contracting has no knowledge. (b) Exclusion or modification of warranty. --A warranty under subsection (a) will be excluded or modified only by specific language or by circumstances which give the buyer reason to know that the person selling does not claim title in himself or that he is purporting to sell only such right or title as he or a third person may have. 13 Pa.C.S.A. § 2312. - 11 - J-A32015-12 public record to ascertain [whether] any security interests may have existed in the [e]quipment. Brief for the Defendants at 23. The Defendants emphasize the fact that, prior to the scheduled auction in this case, Gearhart had expressed his concerns regarding the Defendants ownership interest in the equipment. Id. In light of these concerns, the Defendants assert, Gearhart had a duty to conduct an investigation into whether any other party had a paramount claim of ownership to the equipment. Id. We are wholly unpersuaded by the Defendants claim. The trial court found that, in response to Gearhart s expressed concerns regarding ownership of the equipment, both Newman and his attorney had intentionally made several fraudulent assurances to Gearhart that no one had a superior claim to the equipment than that of Newman and the Defendants. See Decision and Order, 10/18/11, at 8-12. Further, the Defendants cite to no relevant legal authority to support their bald claim that, despite the Defendants fraudulent misrepresentations, Gearhart nevertheless had a legal duty to conduct an investigation into the title history of the equipment. Accordingly, we conclude that the Defendants final claim of error lacks merit. Since we determine that the trial court s factual findings are supported by competent evidence in the record, and we discern no error of law by the court in entering judgment against the Defendants, we affirm. Judgment affirmed. - 12 -

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