ECN Financial, LLC v. Earthscape, Inc. ( 2021 )

J-S09002-21
ON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ECN FINANCIAL, LLC : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EARTHSCAPE, INC AND KEN HAUK :
:
Appellant : No. 547 EDA 2020
Appeal from the Judgment Entered January 23, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2017-06535
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED MAY 12, 2021
Appellants, Earthscape, Inc. and Ken Hauk (“Hauk”), (collectively,
“Appellants”), appeal from the January 23, 2020 judgment1 entered upon a
non-jury verdict in favor of ECN Financial, LLC (“ECN Financial”) on ECN
Financial’s cause of action. We dismiss this appeal.
The trial court summarized the factual history as follows:
[Appellants’] principal place of business [is] in Foristell, Missouri.
[ECN Financial’s] principal place of business is [in] Horsham,
Pennsylvania. On [] November 20, 2015, [Appellants] entered
____________________________________________
1 Appellants purport to appeal from the January 6, 2020 order denying their
post-trial motion seeking a new trial or, in the alternative, a judgment
notwithstanding the verdict. “[A]n appeal to this Court can only lie from
judgments entered subsequent to the trial court's disposition of any
post-verdict motions, not from the order denying post-trial motions.”
Johnston the Florist, Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514
(Pa. Super. 1995). Upon praecipe filed by ECN Financial, LLC, judgment was
entered on January 23, 2020, in favor of ECN Financial, LLC in the amount of
$48,058.06. Appellants’ appeal properly lies from the January 23, 2020
judgment. Id. The caption has been corrected accordingly.
J-S09002-21
into a written lease agreement to finance a piece of construction
equipment identified as a Bobcat T650 track loader[,] including all
attachments and accessories[,] from [ECN Financial]. It was
undisputed that the terms of the lease [agreement] provide[d] for
thirty-six monthly [lease] payments of $1,193.33 [each] for use
of the equipment and[,] at the end of the lease [agreement,] an
option to [] purchase the equipment for $29,498.15, return the
equipment, or continue [leasing] the equipment for [twelve
additional] months. [Pursuant to the lease agreement, if] the
[monthly lease payment was] not paid on time, a default
occur[ed]. Upon default, [ECN Financial was] entitled to
accelerate the balance due for the remaining [monthly lease]
payments that [had] not been made. The [lease agreement]
further provided that upon default[, Appellants were] obligated to
pay all costs to enforce the lease [agreement], including collection
costs, repossession costs, and attorney’s fees. At trial, sufficient
evidence was presented to establish that [Appellants] signed the
lease agreement. [In] a bench trial, [the trial] court found that []
Hauk [signed] the lease [agreement] and was [a] personal
guarantor [of the lease obligations]. [] Hauk did not attend the
[non-jury] trial.
A payment history for the lease [agreement] was stored by [ECN
Financial]. The last [monthly lease] payment that [Appellants]
paid was the October [] 2016 [lease] payment. ECN Financial
recovered possession of the [equipment] in good condition except
the tire tracks were damaged to the point that they needed to be
replaced. Net proceeds of $41,958.88 were received from the sale
of the equipment in March 2017. At the time of [Appellants’]
default on the lease [agreement], there were 25 remaining
payments [outstanding] as [Appellants] paid 11 of the 36
payments due [under the terms of the lease agreement].
On March 30, 2017, [ECN Financial] filed a complaint against
[Appellants] in Montgomery County, Pennsylvania to collect the
net book value of $59,624.98, including interest at the rate of
18% per year, plus costs and attorney[’s] fees. In September
2017, [Appellants] filed a demand for a jury trial, [a] praecipe of
notice of Missouri law, and preliminary objections. The [trial court
overruled the] preliminary objections[.] Thereafter, [Appellants]
filed an answer with new matter, asserting defenses. . . . On
September 19, 2019, [ECN Financial] filed a pre-trial motion to
strike the demand for [a] jury trial and the notice of Missouri law
pursuant to a governing law provision [in the lease agreement],
which was granted by the [trial] court. The case proceeded to a
-2-
J-S09002-21
bench trial on December 17, 2019. The entire proceeding lasted
[one] hour and three minutes during which [ECN Financial] called
one witness and presented nine exhibits. [Appellants] presented
no witnesses or exhibits. [Appellants, and in particular Hauk,] did
not [personally] appear at the trial[. A] medical excuse was
presented after [ECN Financial] rested [its] case[.] [Appellants]
did not inform the [trial] court of any reason for [Appellants’]
absence, request a continuance[,] or ask for an accommodation
for [Appellants] to participate virtually at the commencement of
the trial. [Appellants’] absence was only raised with the hope
[that] it would thwart [ECN Financial’s] counsel from “making a
point of it.” On December 23, 2019, the [trial] court rendered a
verdict in favor of [ECN Financial.2] in the amount of $48,058.06.
Trial Court Opinion, 9/11/20, at 1-3 (record citations and extraneous
capitalization omitted). Appellants filed a post-trial motion seeking a new trial
or, in the alternative, a judgment notwithstanding the verdict, which the trial
court subsequently denied on January 6, 2020. On January 23, 2020, upon
ECN Financial filing a praecipe to reduce the verdict to a judgment, a judgment
in the amount of $48,058.06 was entered in favor of ECN Financial. This
appeal followed.3
Appellants raise the following issues for our review:
1. [Did the trial court err as a matter of law or abuse its
discretion when it struck Appellants’ September 5, 2017]
____________________________________________
2 We note that at the conclusion of the non-jury trial, the trial court found that
Appellants “breached [their] obligations under the [lease agreement] and
[were] obligated to pay $48,471.98 as a total amount of damages in
accordance with the [lease agreement].” N.T., 12/17/19, at 55. The trial
court subsequently entered an order awarding ECN Financial $48,056.06 in
damages. Trial Court Order, 12/23/19. Judgment was ultimately entered in
favor of ECN Financial in the amount of $48,058.06.
3 Both Appellants and the trial court complied with Pa.R.A.P. 1925.
-3-
J-S09002-21
request for a jury trial because [ECN Financial] waived the
issue [by] not [moving] to strike the jury [trial] request until
[September] 3, 2019[?]
2. [Did the trial court err as a matter of law or abuse its
discretion when it struck Appellants’ September 5, 2017]
notice of Missouri Law [because ECN Financial] did not move
to strike the notice until [September] 3, 2019[?]
3. [Did the trial court err as matter of law or abuse its
discretion in denying Appellants’ post-trial motion when the]
trial testimony showed that [Appellants] were not made
aware that they were waiving their rights when they
allegedly signed the [lease agreement] with full knowledge
which is a violation of Missouri Law[?]
4. [Did the trial court err as a matter of law or abuse its
discretion when it applied Pennsylvania law] and not []
Missouri law[?]
5. [Did the trial court err as matter of law or abuse its
discretion in denying Appellants’ post-trial motion when ECN
Financial] failed to show that it did not follow [the] law
regarding a "commercially reasonable manner" [in
conducting] a re[-]sale of the [equipment?]
6. [Did the trial court err as matter of law or abuse its
discretion in denying Appellants’ post-trial motion when ECN
Financial] failed to produce witnesses to show how the
[equipment] was resold[?]
7. [Did the trial court err as matter of law or abuse its
discretion in denying Appellants’ post-trial motion when ECN
Financial] admitted that [Appellants] did not receive proper
notice of the re-sale [of the equipment?]
8. [Did the trial court err as matter of law or abuse its
discretion in awarding ECN Financial] attorney's fees when
[ECN Financial] failed to produce any document on that
issue[?]
9. [Did the trial court err as matter of law or abuse its
discretion by implying] a negative inference in response to
[Hauk’s] medical letter which stated that he could not attend
the bench trial[?]
-4-
J-S09002-21
Appellants’ Brief at 3.
Preliminarily, we must address the contention that Appellants’ appeal
should be dismissed because Appellants failed to comply with the Pennsylvania
Rules of Appellate Procedure regarding the requirements for filing an appellate
brief. ECN Financial’s Brief at 11-13.
Pennsylvania Rule of Appellate Procedure 2101 states,
Briefs and reproduced records shall conform in all material
respects with the requirements of these rules as nearly as the
circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief or
reproduced record of the appellant and are substantial, the appeal
or other matter may be quashed or dismissed.
Pa.R.A.P. 2101. Pennsylvania Rule of Appellate Procedure 2111(a) requires
an appellant’s brief to contain, inter alia, an argument section. Pa.R.A.P.
2111(a)(8). The argument section of an appellant’s brief “shall be divided
into as many parts as there are questions to be argued[] and shall have at the
head of each part - in distinctive type or in type distinctively displayed - the
particular point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.” Pa.R.A.P. 2119(a). “The [Pennsylvania]
Rules of Appellate Procedure state unequivocally that each question an
appellant raises is to be supported by discussion and analysis of pertinent
authority.” Estate of Haiko v. McGinley, 799 A.2d 155, 161 (Pa. Super.
2002). “Appellate arguments which fail to adhere to these rules may be
considered waived and arguments which are not appropriately developed are
-5-
J-S09002-21
waived.” Lackner v. Glosser, 892 A.2d 21, 29 (Pa. Super. 2006) (citations
omitted).
This Court will not act as counsel and will not develop arguments
on behalf of an appellant. When deficiencies in a brief hinder our
ability to conduct meaningful appellate review, we may dismiss
the appeal entirely or find certain issues to be waived. It is not
this Court's responsibility to comb through the record seeking the
factual underpinnings of [an appellant’s] claim.
Irwin Union Nat’l Bank and Trust Co. v. Famous, 4 A.3d 1099, 1104
(Pa. Super. 2010) (citations omitted), appeal denied, 20 A.3d 1212 (Pa.
2011).
Here, Appellants raise nine issues in their counseled brief. The
argument section of Appellants’ brief, however, is divided into only two
sub-sections entitled “A. Burden of Proof” and “B. Issues of First
Impressions[,]” neither of which directly correspond to Appellants’ nine issues.
Appellant’s Brief at 5 (extraneous capitalization omitted). The “arguments”
set forth under each of these two sub-sections consist of general statements
without citation to the record, fail to identify the issue or issues to which the
general statements pertain, and lack any significant legal discussion or
analysis of Appellants’ claims. The dearth of relevant discussion and analysis
of Appellants’ claims with citation to the record and to legal authority in
support thereof prevents this Court from conducting any meaningful review of
Appellants’ issues. Accordingly, because Appellants’ brief fails to adhere to
the requirements of the Pennsylvania Rules of Appellant Procedure, we dismiss
Appellants’ appeal.
-6-
J-S09002-21
Appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/12/2021
-7-