Coluccio, R. v. Karp, M. ( 2015 )

J. A25034/15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
RICHARD COLUCCIO, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
MICHAEL KARP, JAMES D’ANGELO, JR., :
AND D’ANGELO INVESTMENT GROUP, :
LLC, :
:
: No. 388 EDA 2015
Appeal from the Judgment January 21, 2015
In the Court of Common Pleas of Bucks County
Civil Division No(s).: 2011-06293
BEFORE: DONOHUE, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 24, 2015
Appellant, Richard Coluccio, appeals from the judgment entered in the
Bucks County Court of Common Pleas following a bench trial and verdict in
favor of Appellees, Michael Karp and D’Angelo Investment Group, LLC
(“DIG”).1 Appellant raises twelve claims of error in this breach of contract
suit. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
Appellee James D’Angelo, Jr., consented to entry of default judgment
against him. Appellant’s counsel appears to have represented D’Angelo’s
father in a lawsuit involving an allegedly fraudulent mortgage note signed by
D’Angelo. See generally In re D’Angelo, 479 B.R. 649 (Bankr. E.D. Pa.
2012).
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We adopt the trial court’s findings of fact. See Trial Ct. Op., 12/26/14,
at 1-11. New Jersey law governs the interpretation of this contract, 2 R.R. at
43a,3 and the contract includes an integration clause:4
This Agreement . . . contains the entire agreement
between the parties hereto with respect to the Company.
No variations, modifications or changes herein nor any
waiver of any provision hereof shall be binding unless set
forth in a document duly executed by or on behalf of each
of the Members.
Id. at 42a. The disputed contract provision follows:
Payment to [Appellant] by September 14, 2005 of
$950,000 as final and full payment for any and all interest
in claims in the Premises or the Company. [Appellant]
hereby covenants and agrees to sell and release his
interests in the Premises and the Company in exchange for
such sum, and shall execute such release and transfer
documentation as the Company shall reasonably request.
Upon receipt of the aforesaid payment, [Appellant] shall
have no further ownership interest in or claims against
either the Premises or the Company.
Id. at 27a.
We add that Appellant did not raise a claim for fraud or piercing the
corporate veil. Appellant also did not object to Karp’s testimony regarding
2
The agreement provided that any New Jersey conflict-of-law provisions
that result in the application of non-New Jersey law would not apply.
3
For ease of disposition, we cite to the reproduced record.
4
“The essence of voluntary integration is the intentional reduction of the act
to a single memorial; and where such is the case the law deems the writing
to be the sole and indisputable repository of the intention of the parties.”
Harker v. McKissock, 96 A.2d 660, 665 (N.J. 1953) (citations omitted).
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his routine business practice for wire transfers. Karp moved for default
judgment against DIG and D’Angelo; Appellant never moved for default
judgment against DIG. Following a bench trial and a verdict in favor of
Appellees, Appellant filed a post-trial motion requesting either a new trial or
the court to modify its verdict to hold Appellees liable. 5 See Appellant’s Mot.
for Post Trial Relief, 1/5/15, at 27; Appellant’s Supp. to Mot. for Post Trial
Relief, 1/9/15, at 27. Following entry of judgment, Appellant timely
appealed. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)
statement raising twenty issues.
In his appellate brief, Appellant raises the following twelve 6 issues:
5
Essentially, in this case, judgment notwithstanding the verdict.
6
We endorse the following:
With a decade and a half of federal appellate court
experience behind me, I can say that even when we
reverse a trial court it is rare that a brief successfully
demonstrates that the trial court committed more than one
or two reversible errors. I have said in open court that
when I read an appellant’s brief that contains ten or twelve
points, a presumption arises that there is no merit to any
of them. I do not say that this is an irrebuttable
presumption, but it is a presumption nevertheless that
reduces the effectiveness of appellate advocacy. Appellate
advocacy is measured by effectiveness, not
loquaciousness.
Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 83-84 (Pa.
Super. 2002) (quoting Ruggero J. Aldisert, The Appellate Bar: Professional
Competence and Professional Responsibility—A View from the Jaundiced Eye
of One Appellate Judge, 11 Cap. U. L. Rev. 445, 458 (1982)); accord
Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993) (“[T]he number
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1. Did Karp breach the Contract by disregarding the one
sure way to make payment according to the Contract, that
is, by mailing or delivering a check to “Richard Coluccio . .
. at 5296 Moyer Road, Pipersville, PA 18947”?
2. Should the trial court have applied the doctrine of
contra proferentum to construe the terms and conditions
of the contract against the draftor . . . Karp?
3. Did the trial court erroneously find that the Contract did
not require any direct payment obligation from Karp
personally to [Appellant]?
4. Is the court’s finding “that the Joint Account owned by
Sheridan, D’Angelo, and [Appellant] received a payment of
$950,000 . . . as required by the Amended Agreement”
clearly erroneous as a matter of fact and law?
5. Was it an error of law and an abuse of discretion for the
trial court to allow [Appellees] to present facts contrary to
his “Joinder Complaint” in which [Appellees] plead [sic]
“assuming Plaintiff was not paid, D[IG] is responsible for
payment to Mr. Coluccio . . . [Appellant’s] relief for not
being paid the $950,000.00 is in the form of his interest in
[DIG]”?
6. Was it an error of law and an abuse of discretion for the
trial court to find in favor of the unrepresented LLC,
namely DIG, who failed to enter an appearance throughout
the litigation, failed to appear at trial, and failed to answer
[Appellees’] joinder complaint or motion for default
judgment?
7. Did Karp’s disregard of virtually all New Jersey Limited
Liability Act provisions referenced in the Contract he wrote
“acknowledged, affirmed and ratified in all respects” allow
[Appellant] to pierce the corporate/LLC veil under New
Jersey law?
of claims raised in an appeal is usually in inverse proportion to their merit
and that a large number of claims raises the presumption that all are
invalid.”).
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8. Is the court’s finding of an unwritten “side deal” based
on competent evidence?
9. Does a written contract render irrelevant as a matter of
law the court’s finding that [Appellant] the damaged party
was burdened to prove that “a wire transfer was not the
common practice in the industry”?
10. Was the trial court’s sua sponte imposition of the
“adverse interest exception” defense into this case in favor
of defendants [sic] Karp and the absent DIG an error of
law and abuse of discretion, particularly since Karp or the
absent DIG did not raise it themselves, even if it was
applicable?
11. Is the trial court’s finding that “D’Angelo [was] an
agent of DIG, [but] was not acting in DIG’s interest when
he and Sheridan, his agent, removed $944,983.38 of the
$950,000 from the Joint Account of [Appellant], Sheridan,
and D’Angelo [(and deposited $500,000 of it back into a
DIG account)] clearly erroneous as a matter of fact and
law?[7]
12. Was the denial of [Appellant’s] March 1, 2013 Motion
to Compel 2005-2006 tax returns during the pretrial
discovery process an error of law and abuse of discretion
that deprived [him] of a fair trial?
Appellant’s Brief at 20-23 (reordered and renumbered to facilitate
disposition).8
7
Alterations in original.
8
Appellant, although raising twelve issues, presents only seven arguments
in his appellate brief, thus violating Pa.R.A.P. 2119(a), which mandates that
“argument shall be divided into as many parts as there are questions to be
argued.” See Pa.R.A.P. 2119(a). We decline to quash. See PHH Mortg.
Corp. v. Powell, 100 A.3d 611, 615 (Pa. Super. 2014) (refusing to quash
appeal despite numerous violations of appellate briefing rules); see also
Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing
requirements scrupulously delineated in our appellate rules are not mere
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We summarize Appellant’s first and third arguments, both of which
support his first four issues on appeal. Appellant notes that Karp paid the
$950,000 to a joint account in the names of Appellant, D’Angelo, and a third
party. Id. at 46. He suggests that New Jersey law9 required that payment
was due at his residence or place of business. Id. at 37, 45. Appellant,
however, anticipates that Karp would argue the contract was “silent as to
how [Appellant] was to be paid the $950,000.” Id. at 46. He refers to a
September 13, 2005 note10 with the joint account number and his home
address. Id. at 47. In Appellant’s view, the note established Karp’s intent
to wire the money to a joint account and not inform him. Id. In conjunction
with what he perceives was the parties’ reasonable expectations regarding
trifling matters of stylistic preference; rather, they represent a studied
determination by our Court and its rules committee of the most efficacious
manner by which appellate review may be conducted so that a litigant’s right
to judicial review as guaranteed by Article V, Section 9 of our
Commonwealth’s Constitution may be properly exercised.”). We note
Appellant initially certified his brief comprised 13,280 words. Appellant’s
Certification of Compliance, 5/11/15. In response to Appellees’ motion to
quash this appeal for a defective brief, Appellant averred his brief contained
13,447 words. Appellant’s Resp. to Appellees’ Mot. to Quash Appeal,
6/15/15, at 1 (unpaginated). Our own informal word count suggests
Appellant’s brief is 13,955 words long, which is under the 14,000 word limit
set forth at Pa.R.A.P. 2135.
9
Although Appellant appears to argue Pennsylvania law applies, see
Appellant’s Brief at 37, 45, the parties previously agreed New Jersey law
governs the contract. See R.R. at 43a. Appellant has not argued, e.g., that
the choice-of-law provision is ambiguous.
10
Appellant did not cite to the location in the record where this note could
be located. We note the reproduced record alone is over a thousand pages.
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method of payment, Appellant suggests the parties deliberately omitted the
term from the agreement. Id.
Appellant alternatively contends that an ambiguity exists in the
contract and that per the doctrine of contra proferentum, the contract should
be construed against the drafter, who was Karp. Id. at 48-49. Appellant
again observes that his address was listed on page one of the contract. He
complains that the court, by holding Karp complied with the contract, erred
by making a better contract thus disregarding contra proferentum. Id. at
49.
In response, Karp alleges that Appellant raised contra proferentum for
the first time in his Rule 1925(b) statement. Karp’s Brief at 11. Regardless,
Karp refers this Court to Appellant’s testimony that Appellant never notified
Karp or his agents to send the money to Appellant’s home. Id. at 5 (citing
N.T. Trial, 8/21/14, at 156). Karp cites Appellant’s testimony that he never
contacted Karp or his agents about not receiving the $950,000. Id. (citing
N.T., 8/21/14, at 131-32; N.T., 8/22/14, at 57). According to Karp,
Appellant contacted him in the summer of 2006 and verified that he did not
have an ownership interest in the project. Id. (citing N.T., 8/25/14, at 114-
15). After careful consideration, we hold Appellant is not entitled to relief.
The standard of review follows:
Our 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
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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.
Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50
(Pa. Super. 2004) (internal quotation marks and citations omitted). “The
trial court’s conclusions of law on appeal originating from a non-jury trial are
not binding on an appellate court because it is the appellate court’s duty to
determine if the trial court correctly applied the law to the facts of the case.”
Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa. Super. 2005) (internal
quotation marks and citation omitted).
The following also illuminates this Court’s standard and scope of
review from an order resolving a post-trial motion:
An appellate court will reverse a trial court’s grant or
denial of a JNOV only when the appellate court finds an
abuse of discretion or an error of law. Our scope of review
with respect to whether judgment n.o.v. is appropriate is
plenary, as with any review of questions of law.
In reviewing a motion for judgment n.o.v., the evidence
must be considered in the light most favorable to the
verdict winner, and he must be given the benefit of every
reasonable inference of fact arising therefrom, and any
conflict in the evidence must be resolved in his favor.
Moreover, a judgment n.o.v. should only be entered in a
clear case and any doubts must be resolved in favor of the
verdict winner. Further, a judge’s appraisement of
evidence is not to be based on how he would have voted
had he been a member of the jury, but on the facts as
they come through the sieve of the [fact-finder’s]
deliberations.
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There are two bases upon which a judgment
n.o.v. can be entered: one, the movant is
entitled to judgment as a matter of law, and/or
two, the evidence was such that no two
reasonable minds could disagree that the
outcome should have been rendered in favor of
the movant. With the first a court reviews the
record and concludes that even with all factual
inferences decided adverse to the movant the
law nonetheless requires a verdict in his favor,
whereas with the second the court reviews the
evidentiary record and concludes that the
evidence was such that a verdict for the movant
was beyond peradventure.
Questions of credibility and conflicts in the evidence are for
the fact-finder to resolve and the reviewing court should
not reweigh the evidence. If there is any basis upon which
the fact-finder could have properly made its award, the
denial of the motion for judgment n.o.v. must be affirmed.
Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)
(per curiam) (internal brackets, ellipses, and citations omitted).
In reviewing a trial court’s denial of a motion for a new
trial, the standard of review for an appellate court is as
follows:
It is well-established law that, absent a clear
abuse of discretion by the trial court, appellate
courts must not interfere with the trial court’s
authority to grant or deny a new trial.
Thus, when analyzing a decision by a trial court
to grant or deny a new trial, the proper
standard of review, ultimately, is whether the
trial court abused its discretion.
Moreover, our review must be tailored to a well-settled,
two-part analysis:
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We must review the court’s alleged mistake and
determine whether the court erred and, if so,
whether the error resulted in prejudice
necessitating a new trial. If the alleged mistake
concerned an error of law, we will scrutinize for
legal error. Once we determine whether an
error occurred, we must then determine
whether the trial court abused its discretion in
ruling on the request for a new trial.
Gurley v. Janssen Pharms., Inc., 113 A.3d 283, 288-89 (Pa. Super.
2015) (internal alterations, brackets, and citations omitted). We add that
“[f]ailure to preserve [an issue] in a post-trial motion results in a waiver of
that issue on appeal.” Nogowski v. Alemo-Hammad, 691 A.2d 950, 955
(Pa. Super. 1997) (citation omitted).
As noted above, New Jersey law governs the interpretation of the
instant contract:
The polestar of construction is the intention of the parties
to the contract as disclosed by the language used, taken
as an entirety; and, in the quest for the intention, the
situation of the parties, the attendant circumstances, and
the objects they were thereby striving to attain are to be
regarded. Even when the contract on its face is free from
ambiguity, evidence of the situation of the parties and the
surrounding circumstances and conditions is admissible in
aid of interpretation. The inquiry is the meaning of the
words when assayed by the standard adopted by the law.
On the theory that all language will bear some different
meanings, evidence of the circumstances is always
admissible in the construction of integrated
agreements,[11] but not for the purpose of giving effect to
11
If a contract contains an integration clause, “and it is not apparent from
the writing itself that something is left out to be supplied by extrinsic
evidence, parol evidence to vary or add to its terms is not admissible.”
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an intent at variance with any meaning that can be
attached to the words. This is a primary rule of
interpretation which has special application where the
meaning of the instrument is not clearly apparent. The
admission of evidence of extrinsic facts is not for the
purpose of changing the writing, but to secure light by
which to measure its actual significance. Such evidence is
adducible only for the purpose of interpreting the writing-
not for the purpose of modifying or enlarging or curtailing
its terms, but to aid in determining the meaning of what
has been said. So far as the evidence tends to show
not the meaning of the writing, but an intention
wholly unexpressed in the writing, it is irrelevant.
And the general design of the agreement is to be kept in
view in ascertaining the sense of particular terms. In
short, we are to consider what was written in the light of
the circumstances under which it was written, and give to
the language a rational meaning consistent with the
expressed general purpose.
Casriel v. King, 65 A.2d 514, 516-17 (N.J. 1949) (emphases added and
citations omitted); accord Conway v. 287 Corp. Ctr. Assocs., 901 A.2d
341, 347 (N.J. 2006) (“Semantics cannot be allowed to twist and distort the
words’ obvious meaning in the minds of the parties.” (quotation marks and
citation omitted)); Jacobs v. Great Pac. Century Corp., 518 A.2d 223(N.J. 1986).12
Schlossman’s, Inc. v. Radcliffe, 70 A.2d 493, 495 (N.J. 1950) (citations
omitted).
12
Contra Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418,
429 (Pa. 2001) (“Only where a contract’s language is ambiguous may
extrinsic or parol evidence be considered to determine the intent of the
parties.” (citation omitted)).
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The Conway Court concisely explained the role of parol evidence in a
fully integrated agreement:
In sum, we permit a broad use of extrinsic evidence to
achieve the ultimate goal of discovering the intent of the
parties. Extrinsic evidence may be used to uncover the
true meaning of contractual terms. It is only after the
meaning of the contract is discerned that the parol
evidence rule comes into play to prohibit the introduction
of extrinsic evidence to vary the terms of the contract.
Conway, 901 A.2d at 347; Schlossman’s, 70 A.2d at 495. “Where an
ambiguity appears in a written agreement, the writing is to be strictly
construed against the draftsman,” i.e., contra proferentum. In re Miller’s
Estate, 447 A.2d 549, 555 (N.J. 1982).
To the extent that contract terms may be implied:
Some principles have been utilized to define those
implications. Thus we have held that terms will be implied
in a contract where the parties must have intended them
because they are necessary to give business efficacy to the
contract as written. Moreover, in every contract there is
an implied covenant of good faith and fair dealing. As a
corollary to that proposition it is certainly reasonable to
imply that neither party to a contract shall injure the right
of the other to receive the fruits of the agreement.
There are also some situations in which a condition will
be implied on grounds of fairness and justice. . . .
Where fairness and justice require, even
though the parties to a contract have not
expressed an intention in specific language, the
courts may impose a constructive condition to
accomplish such a result when it is apparent
that is necessarily involved in the contractual
relationship.
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The law has outgrown its primitive stage of
formalism when the precise word was the
sovereign talisman, and every slip was fatal. It
takes a broader view today. A promise may be
lacking, and yet the whole writing may be
instinct with an obligation, imperfectly
expressed . . . .
In determining under contract law, what
covenants are implied, the object which the
parties had in view and intended to be
accomplished, is of primary importance. The
subject matter and circumstances of the
[contracting] give at least as clear a clue to the
natural intentions of the parties as do the
written words. It is of course not the province
of the court to make a new contract or to supply
any material stipulations or conditions which
contravene the agreements of the parties.
Terms are to be implied not because
they are just or reasonable, but rather for
the reason that the parties must have intended
them and have only failed to express them . . .
or because they are necessary to give business
efficacy to the contract as written, or to give the
contract the effect which the parties, as fair and
reasonable men, presumably would have agreed
on if, having in mind the possibility of the
situation which has arisen, they contracted
expressly in reference thereto.
Onderdonk v. Presbyterian Homes of N.J., 425 A.2d 1057, 1062-63
(N.J. 1981) (citations, alteration, and internal quotation marks omitted).
Instantly, although the contract contains an integration clause, we
may consider extrinsic evidence to the extent it aids interpretation of the
terms of the contract. See Casriel, 65 A.2d at 516-17; see also
Schlossman’s, 70 A.2d at 495. Appellant, however, has not identified any
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contract term regarding method of payment. Appellant has also not
identified or referred this Court to any extrinsic evidence tending to
establish an existing contract term’s significance with respect to payment
method.13 See Casriel, 65 A.2d at 516-17.
Appellant has referred this Court to an alleged note14 purporting to
establish Karp’s intent to wire the money to a joint account. Such evidence,
however, does not clarify the meaning of an existing contract term but
establishes “an intention wholly unexpressed” in the contract, i.e., method of
payment. See id.; accord Conway, 901 A.2d at 347 (holding extrinsic
evidence cannot vary terms of contract). Thus, the alleged note is irrelevant
as it does not pertain to an existing contract term. See Casriel, 65 A.2d at
516-17. With respect to Appellant’s contra proferentum argument, he
waived it on appeal by not preserving the issue in his post-trial motion. See
Nogowski, 691 A.2d at 955. Regardless, on the merits, because Appellant
cannot identify any ambiguity in an existing contract term, contra
proferentum does not apply. See In re Miller’s Estate, 447 A.2d at 555.
Appellant also argued that the court should impute into the contract a
term alleged required by New Jersey law: payment was due via check at his
13
The agreement preamble stating Appellant’s address is not extrinsic
evidence.
14
As noted above, Appellant did not identify where in the extensive record
this note could be found.
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Pennsylvania home/business address. Appellant, however, has not
referenced any evidence that such a term was both obvious and material to
effectuating the agreement’s purpose. See Onderdonk, 425 A.2d at 1062.
The agreement, as a whole, does not imperfectly express an obligation that
payment must be sent via check to Appellant’s address. See id. While we
agree it is reasonable to imply that Karp would not “injure the right” of
Appellant to receive $950,000, Karp actually paid the $950,000. See id.
But as Karp observed, Appellant did not even follow up with Karp about not
receiving the $950,000, let alone at his home via check. See Karp’s Brief at
5 (citing trial testimony). This tends to suggest that such a term was not
obvious, let alone material, to executing the agreement. See Onderdonk,
425 A.2d at 1062. After careful consideration of the record in Karp’s favor,
we do not discern trial court error. See Amerikohl, 860 A.2d at 549-50.
Appellant’s second and fifth arguments pertain to his fifth, sixth,
seventh, and eighth issues on appeal. Appellant argues that because the
court entered default judgment against D’Angelo, it should also have entered
a default judgment against DIG. Appellant’s Brief at 52. He faults the trial
court for permitting trial to continue against DIG. Appellant alleges that DIG
and Karp are identical and he should have been allowed to “pierce the
corporate veil.” Id. at 60. He also contends the court improperly
considered parol evidence of an alleged “side deal.” Id. at 62. In support of
his arguments, Appellant cites to two unreported appellate decisions. Id. at
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53 (citing Straban Twp. v. Hanoverian Trust, 708 C.D. 2014, 2015 WL
5432435, *3 (Pa. Cmwlth. Apr. 22, 2015) (holding “corporation may appear
in court proceedings only by counsel.”)), 60 (citing Magna Fabrics, Inc. v.
N.Y. Art & Shipping, LLC, No. A-5322-11T3, 2013 N.J. Super. Unpub.
LEXIS 2016 (N.J. Super. Ct. App. Div. Aug. 8, 2013) (quoting jury
instruction stating shareholder of LLC may be liable for LLC’s debts)).
Karp counters that Appellant failed to cite any applicable legal
authority. Regardless, Karp points out that Appellant did not move for a
default judgment against DIG. He claims that DIG’s failure to appear did not
bar the trial court from entering judgment—whether favorable or
unfavorable. Karp’s Brief at 15-16. In reply, Appellant maintains that DIG’s
failure to appear resulted in a “free pass” that deprived him of the judgment
that was also awarded against D’Angelo. We hold Appellant has waived
entitlement to relief.
“It is the appellant who has the burden of establishing his entitlement
to relief by showing that the ruling of the trial court is erroneous under the
evidence or the law. Where the appellant has failed to cite any authority in
support of a contention, the claim is waived.” Bunt v. Pension Mortg.
Assocs., Inc., 666 A.2d 1091, 1095 (Pa. Super. 1995) (citations omitted);
accord Moranko v. Downs Racing LP, 118 A.3d 1111, 1117 n.3 (Pa.
Super. 2015) (en banc). Appellant, however, cites to an unreported
Commonwealth Court decision that stands for the proposition that a
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corporation may not appear in court without counsel. Appellant similarly
cites to an unreported New Jersey appellate court decision, which quoted a
jury instruction stating that an LLC’s shareholder could be liable for an LLC’s
debts. Appellant provides no legal analysis, let alone binding precedential
authority, explaining why the court erred and why he is entitled to have
D’Angelo’s judgment apply to DIG, and thus, he has waived this argument in
support of his two issues. See Bunt, 666 A.2d at 1095.15 Even if Appellant
had supported his claims, we note that Appellant did not move for a default
judgment against DIG and never raised a claim for fraud, let alone piercing
the corporate veil.
Appellant’s fourth argument is in support of his ninth issue. The
court’s forty-fifth finding of fact follows: “It is common practice in
commercial business to wire transfer money.” Trial Ct. Op., 12/26/14, at 9
(citing Karp’s testimony). Appellant alleges the trial court erred with its
forty-sixth finding of fact: “[Appellant] supplied no testimony to evidence
that a wire transfer was not the common practice in the industry.” Id.(citing entirety of Appellant’s trial testimony). Based on this finding of fact,
Appellant opines the court erred by requiring him to establish a wire transfer
was not a common industry practice. Appellant’s Brief at 58. He contends
15
See also In re D’Angelo, 479 B.R. at 659 (stating “brief contains no
viable legal argument” and employs “inflammatory language”), 660 (noting
lack of citation to legal authority).
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the agreement was not ambiguous because there was no contract term
requiring a wire transfer. Id. at 59. Appellant thus reasons that because
the relevant term did not exist, the trial court’s scope was limited to only the
integrated agreement. Id. He concludes that by requiring him to prove that
a wire transfer was not a typical banking custom, the court erred. We hold
Appellant is not entitled to relief.
As noted above, we ascertain whether “the findings of the trial court
are supported by competent evidence.” Amerikohl, 860 A.2d at 549-50.
The standard of review for an evidentiary ruling follows:
It is axiomatic that, in order to preserve an issue for
review, litigants must make timely and specific objections
during trial and raise the issue in post-trial motions.
Granting or denying an untimely objection lies in the
discretion of the trial court. Requiring a litigant to make a
timely, specific objection during trial ensures that the trial
court has a chance to correct alleged trial errors. We have
stressed that waiver is indispensable to the orderly
functioning of our judicial process and developed out of a
sense of fairness to an opposing party and as a means of
promoting jurisprudential efficiency by avoiding appellate
court determinations of issues which the appealing party
has failed to preserve.
Harman v. Borah, 756 A.2d 1116, 1124-25 (Pa. 2000) (internal quotation
marks, brackets, and citations omitted).
After reviewing Appellant’s trial testimony, we conclude the trial court
accurately portrayed the absence of such testimony. See Amerikohl, 860
A.2d at 549-50. To the degree that Appellant seemingly argues that the trial
court’s finding of fact reflected an improper alteration of his burden of proof,
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we need not resolve it. Appellant failed to object to Karp’s testimony
regarding his customary business practice with respect to wire transfers.
See N.T., 8/25/14, at 73-181; see also Trial Ct. Op., 12/26/14, at 9.
Because he failed to object, Appellant waived the issue on appeal. See
Harman, 756 A.2d at 1124-25.
Regardless, evidence of whether a wire transfer is common banking
practice is extrinsic evidence. See Conway, 901 A.2d at 347. Such
evidence, therefore, can be used to discern “the true meaning of contractual
terms.” See id. Appellant, however, conceded there is “literally no
ambiguous term pertaining to a wire transfer because a wire transfer is not
stated in the writing.” See Appellant’s Brief at 59. Contra id. at 48-49
(arguing contract is ambiguous). Because there is no ambiguous term,
Appellant agrees that such evidence cannot establish a wholly unexpressed
contract term that payment was to be made via check to Appellant’s home
address. See Conway, 901 A.2d at 347.
For his sixth argument, which supports his tenth and eleventh issues,
Appellant contends the court sua sponte invoked the “adverse interest
exception” defense on behalf of Appellees. See Appellant’s Brief at 63. He
insists the defense applies only in fraud cases and thus cannot be raised in
the instant breach-of-contract matter. Appellant, moreover, asserts that the
court overlooked elements of the defense that are missing from the record.
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Appellant thus opines the court erred by rendering the following conclusions
of law:
24. D’Angelo, an agent of DIG, was not acting in DIG’s
interest when he and Sheridan, his agent, removed
$944,983.38 of the $950,000 from the Joint Account of
Coluccio, Sheridan, and D’Angelo.
25. D’Angelo, an agent of DIG, was not acting in DIG’s
interest when he failed to give Coluccio the full $950,000
to Coluccio as required by the Amended Agreement.
26. The Court finds that D’Angelo’s conduct will not be
imputed on DIG.
Trial Ct. Op., 12/26/14, at 14. Appellant is due no relief.
By way of background, “[t]he Latin phrase ‘in pari delicto potior est
conditio defendentis,’ in pari delicto for short, refers to the common law
maxim that ‘where the wrong of both parties is equal, the position of the
defendant is the stronger.’” Bondi v. Citigroup, Inc., 32 A.3d 1158, 1174
(N.J. Super. Ct. App. Div. 2011) (citations omitted).
Under New Jersey law, the party invoking the defense
must establish that the party against whom the defense is
asserted must have substantially equal responsibility for
the underlying illegality to permit dismissal of claims
asserted by the aggrieved party.
An acknowledged exception to the imputation or in pari
delicto doctrine is the adverse interest exception. Under
this exception, the wrongs of an insider will not be imputed
to the corporation, if the insider acted solely for his own
benefit and adverse to the interest of the corporation.
Id. at 1174-75 (internal quotation marks and citations omitted); accord
NCP Litig. Trust v. KPMG, 945 A.2d 132, 146 (N.J. Super. Ct. App. Div.
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2007). In pari delicto is axiomatically an affirmative defense, which
concedes liability but otherwise excuses a defendant’s actions. See
generally Black’s Law Dictionary 482 (9th ed. 2009) (defining affirmative
defense as “A defendant’s assertion of facts and arguments that, if true, will
defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the
complaint are true.”).
Instantly, we need not resolve whether the trial court properly invoked
the affirmative defense for Appellees, as we have discerned no basis to
reverse the trial court’s rulings regarding Appellant’s breach of contract
claim. See generally Bondi, 32 A.3d at 1174-75. If the trial court had
concluded that Appellees were liable for breach of contract, then Appellees
could have invoked in pari delicto.16 See id. Regardless, assuming the trial
court erred, Appellant has not explained how the error was so prejudicial as
to warrant judgment notwithstanding the verdict, let alone a new trial. See
Gurley, 113 A.3d at 288-89; Braun, 24 A.3d at 890-91; see also Yacoub
v. Lehigh Valley Med. Assocs., 805 A.2d 579, 590-91 (Pa. Super. 2002)
(en banc) (holding trial court erred by ruling plaintiff did not plead sufficient
facts to establish ostensible agency theory of liability; error, however, was
not prejudicial given record). Thus, even assuming trial court error,
16
We need not identify the party against whom such a defense could be
invoked or ascertain the likelihood of success.
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Appellant has waived the argument due to insufficient legal analysis. See
Bunt, 666 A.2d at 1095.
Appellant’s last argument pertains to the trial court’s pretrial ruling
denying his motion to compel discovery of Karp’s 2005 and 2006 tax
returns—his twelfth issue. He notes, however, that the trial court, mid-trial,
ordered Karp to produce the tax returns. Appellant contends that
notwithstanding the mid-trial order to compel, the earlier ruling established
an abuse of discretion and error of law. Appellant also contends that Karp
refused to comply with the order and thus denied him a fair trial. We hold
Appellant has waived entitlement to relief. In support of his seven-page
argument, Appellant cites only to Pa.R.C.P. 4003.1(a), which addresses the
scope of discovery. Appellant cites no authority establishing the trial court
abused its discretion. Accordingly, he has waived this argument. See Bunt,
666 A.2d at 1095. For these reasons, we affirm the judgment below.
Application to quash denied. Appellant’s “Petition re Trial Court’s
1925(a) Opinion” denied. Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/24/2015
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