Eltanbdawy, T. v. MMG Insurance Company ( 2014 )

J-A26031-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TAREK ELTANBDAWY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
MMG INSURANCE COMPANY,
RESTORECARE, INC., KUAN FANG
CHENG
Appellees No. 2243 MDA 2013
Appeal from the Judgment Entered December 23, 2013
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 10-2015 Civil
TAREK ELTANBDAWY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MMG INSURANCE COMPANY,
RESTORECARE, INC., KUAN FANG
CHENG
Appellants No. 45 MDA 2014
Appeal from the Judgment Entered December 23, 2013
In the Court of Common Pleas of Cumberland County
Civil Division at No(s): 10-2015 Civil
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED NOVEMBER 20, 2014
J-A26031-14
Appellant, Tarek Eltanbdawy, appeals from the December 23, 2013
judgment1, entered in favor of Appellee, MMG Insurance Company (MMG).
MMG has filed a cross-appeal from the same judgment.2 After careful
review, we affirm the judgment entered in favor of MMG. As a consequence
of our affirmance, we dismiss MMG’s cross-appeal as moot.
The trial court summarized the relevant factual and procedural history
of this case as follows.
[Appellant] opened the Hampden Diner on
August 28, 2008. The business was insured under a
business owner’s policy issued by [] MMG. When
[Appellant] arrived to work on March 4, 2009 he
discovered that a pipe had burst and the diner had
flooded. He immediately reported the loss to his
insurance agent who contacted [] MMG.
An adjuster was on site immediately and
helped [Appellant] arrange to have the premises
repaired as quickly as possible. Since he operated
on a cash basis, he needed to be open in order to
pay his bills. Nevertheless, over his objection,
____________________________________________
1
Although Appellant purports to appeal from the November 20, 2013 order
denying his post-trial motion, his appeal properly lies from the entry of
judgment. Hart v. Arnold, 884 A.2d 316, 325 n.2 (Pa. Super. 2005)
(citation omitted), appeal denied, 897 A.2d 458 (Pa. 2006). Therefore, we
have corrected the caption accordingly.
2
Additionally, judgment was entered in favor of Appellant and against
Appellee Kuan Feng Cheng (Cheng), who was the owner of the property in
question, in the amount of $120,000.00. Judgment was also entered in
favor of Appellee RestoreCare and against Appellant. Appellant does not
appeal from any part of the judgment pertaining to his claim against
RestoreCare. In addition, Cheng and Appellant reportedly settled their
dispute. As a result, Cheng and RestoreCare are not parties to this appeal.
-2-
J-A26031-14
[Appellant] was forced to close the restaurant while
the repairs were being made.
[Appellant] paid $5[,]500 per month plus
property taxes to rent the premises. He employed a
chef, two cooks, bus boys, eight waitresses and
himself. [Appellant] testified that in the six months
he was open before the flood the business generated
enough cash to pay all of his bills, including his
payroll, rent, and over $11,000 in property taxes. In
addition, the business was profitable enough to allow
him to pay $8[,]000 against the $20,000 debt
incurred for startup inventory. He also used the
business income to purchase $10,000 worth [of]
additional equipment.
MMG paid for the repairs to the premises.
However, the parties were unable to agree upon how
much [Appellant] was entitled to receive for his loss
of business income. The policy obligated MMG to
pay the “actual loss of [b]usiness [i]ncome”
sustained during the time the business was not
operable. The policy goes on to provide:
(c) Business Income means the:
(i) Net Income (Net Profit or Loss before
income taxes) that would have been
earned or incurred if no physical loss or
damage had occurred, … ; and
(ii) Continuing normal operating
expenses incurred, including payroll.
[Appellant] submitted a profit and loss
statement to MMG which showed gross sales of
$270,000 for the period of September 30, 2008
through the end of February 2009. MMG’s forensic
accountant computed that the gross sales over that
time period were only $123,867. The insurance
policy provides that “(t)his policy is void … if you …
at any time intentionally conceal or misrepresent a
material fact concerning … (a) claim under this
policy.”
-3-
J-A26031-14
Trial Court Opinion, 5/2/14, at 1-3 (internal footnote citations omitted).
On March 22, 2010, Appellant filed a complaint against MMG, Cheng,
and RestoreCare, Inc. (RestoreCare), the company hired by MMG to make
repairs to the property, alleging claims of breach of contract and negligence
against MMG, a claim of negligence against RestoreCare, and claims of
breach of contract and intentional infliction of emotional distress against
Cheng. On April 23, 2010, Appellant filed an amended complaint, alleging
breach of contract claims against MMG and Cheng, a negligence claim
against RestoreCare, and a claim of intentional infliction of emotional
distress against Cheng.
On February 25, 2013, this case proceeded to a jury trial. On March
1, 2013, at the conclusion of said trial, the jury found that both Appellant
and MMG breached the contract, and the jury declined to award damages to
Appellant on his claims against MMG. The jury also found in favor of
RestoreCare. However, as to Appellant’s claims against Cheng, the jury
awarded Appellant a total of $120,000.00 in compensatory and punitive
damages. On March 11, 2013, Appellant filed a timely post-trial motion. On
March 15, 2013, MMG filed a timely cross-motion for post-trial relief. On
November 20, 2013, the trial court entered an order denying Appellant’s
post-trial motion and dismissing MMG’s cross-motion as moot. On
December 30, 2013, judgment was entered in favor of MMG and
RestoreCare and against Appellant. However, judgment was also entered in
-4-
J-A26031-14
favor of Appellant and against Cheng. On December 18, 2013, Appellant
filed a timely notice of appeal. On December 30, 2013, MMG filed a timely
notice of cross-appeal.3
On appeal, Appellant raises the following two issues for our review.
1. Did the [trial c]ourt err in submitting an
interrogatory to the jury on the issue of whether
Appellant made misrepresentations or committed
fraud when there was no evidence that MMG relied
upon any such alleged misrepresentations or fraud?
2. Did the [trial c]ourt err in failing to grant a new
trial when the evidence showed that [Appellant] had
paid his insurance premiums and was, therefore,
entitled to at least $5,000.00 for the month that his
business was closed for repairs?
Appellant’s Brief at 4. On its cross-appeal, MMG raises the following issues
for this Court’s review.
A. Whether [] Appellant presented sufficient
evidence from which a jury could conclude that he
sustained a loss of business income under the
applicable insurance policy?
B. Whether the business income loss provision in
MMG’s policy must be interpreted to offset ongoing
expenses with net business losses so as to give
effect to all of the language in the policy and avoid
compensation that is greater than the actual loss
sustained?
MMG’s Brief at 1.
____________________________________________
3
Appellant, MMG, and the trial court have complied with Pa.R.A.P. 1925.
-5-
J-A26031-14
Both of Appellant’s issues on appeal ask for a new trial. We begin by
noting our well-settled standard of review.
Our review of the trial court’s denial of a new
trial is limited to determining whether the trial court
acted capriciously, abused its discretion, or
committed an error of law that controlled the
outcome of the case. In making this determination,
we must consider whether, viewing the evidence in
the light most favorable to the verdict winner, a new
trial would produce a different verdict.
Consequently, if there is any support in the record
for the trial court’s decision to deny a new trial, that
decision must be affirmed.
Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)
(citations omitted).
In his first issue, Appellant avers that the trial court erred in
submitting an interrogatory to the jury that instructed that if Appellant
materially breached his contract with MMG, he cannot recover damages.
Appellant’s Brief at 9. In Appellant’s view, “the trial [court] failed to instruct
the jury that if there was a misrepresentation or fraud, MMG had to rely on it
in order for it to be actionable.” Id. at 9-10.
In examining jury instructions, our scope of review is
limited to determining whether the trial court
committed a clear abuse of discretion or error of law
controlling the outcome of the case. Error in a
charge is sufficient ground for a new trial if the
charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a
material issue. Error will be found where the jury
was probably [misled] by what the trial judge
charged or where there was an omission in the
charge. A charge will be found adequate unless the
-6-
J-A26031-14
issues are not made clear to the jury or the jury was
palpably misled by what the trial judge said or unless
there is an omission in the charge which amounts to
a fundamental error. In reviewing a trial court’s
charge to the jury[,] we must look to the charge in
its entirety. Because this is a question of law, this
Court's review is plenary.
Passarello v. Grumbine, 87 A.3d 285, 296-297 (Pa. 2014) (citation
omitted).
Appellant avers that the trial court erred in its interrogatory to the jury
concerning whether Appellant materially breached the contract because MMG
was required to show that it relied on Appellant’s alleged
misrepresentations. Appellant’s Brief at 9-10. In support of this contention,
Appellant cites to our Supreme Court’s decisions in Porreco v. Porreco,
811 A.2d 566 (Pa. 2002) (plurality) and Bortz v. Noon, 729 A.2d 555 (Pa.
1999). Appellant’s Brief at 10.
In Porreco, our Supreme Court considered a divorce case involving a
pre-nuptial agreement. Porreco, supra at 569-570. The Porreco Court
framed the issue as whether the husband “fraudulently induced [the wife] to
sign the prenuptial agreement by misrepresenting the value of the
engagement ring on the list of her individual assets, which he prepared as
part of the prenuptial agreement.” Id. at 570. Our Supreme Court listed
the six prong test for fraudulent misrepresentation as follows.
In order to void a contract due to a fraudulent
misrepresentation, the party alleging fraud must
prove, by clear and convincing evidence: (1) a
-7-
J-A26031-14
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) resulting injury
proximately caused by the reliance.
Id. The Porreco Court cited to Bortz for this test. The Court went further
to observe that “[t]o be justifiable, reliance upon the representation of
another must be reasonable.” Id. at 571. Ultimately, our Supreme Court
rejected the wife’s argument that her “alleged reliance on [her husband’s]
misrepresentation of the value of the ring on the schedule of her assets was
justifiable.” Id. at 571-572. This precluded the wife from having the pre-
nuptial agreement declared void. Id. at 572.
In Bortz, our Supreme Court discussed intentional misrepresentations
as actionable in tort. Id. at 560. Specifically, the Bortz Court granted
allocatur to decide whether a real estate agent “had a duty to ascertain
whether the septic system had actually passed the dye test and if her failure
to do so amounted to a misrepresentation to the [b]uyer.” Id. at 559. Our
Supreme Court noted that the six-element test it recited initially originated
from the Restatement (Second) of Torts. Id. at 560. Ultimately, the Bortz
Court concluded that “[w]hile the Agent made an affirmative
misrepresentation that the dye test was clear, there is no finding that the
Agent made any misrepresentation with knowledge that it was false.” Id. at
-8-
J-A26031-14
561. As a result, the buyer could not recover against the real estate agent
for intentional misrepresentation. Id.
In this case, the specific insurance policy provision at issue states that
the policy is void if the insured “at any time, intentionally conceal[s] or
misrepresent[s] a material fact concerning … a claim under [the] policy.”
Appellant’s Amended Complaint, 4/23/10, Exhibit B, at 41. As the trial court
pointed out, “[w]hether or not [Appellant] intentionally misrepresented a
material fact in connection with his claim was a question of fact for the jury
to determine … [because i]f he did so, the express language of the policy
voided coverage.” Trial Court Opinion, 5/2/14, at 3. The policy does not
purport to incorporate the elements of common law fraud in any way.
Neither Appellant nor MMG raised a claim for the tort of intentional
misrepresentation, nor was either seeking to rescind the entire contract on
this basis. Rather, MMG believed it did not have to pay certain benefits
under the policy based on its belief that Appellant made material
misrepresentations concerning the value of part of his claim. This was a
question for the jury to decide. As a result, neither Porreco nor Bortz
control the instant case. Based on these considerations, we conclude the
trial court did not abuse its discretion in submitting this interrogatory to the
jury for its consideration. See Passarello, supra.
In his second issue, Appellant avers that even if he did make any
misrepresentations, he would still be entitled to a new trial because “the
-9-
J-A26031-14
evidence showed that Appellant had paid his insurance premiums and was,
therefore, entitled to at least $5,000.00 for the month that his business was
closed for repairs.” Appellant’s Brief at 13. However, before we may review
the merits of Appellant’s claim, we must first ascertain whether Appellant
has waived this issue.
Pennsylvania Rule of Appellate Procedure 2119 states that an
appellant’s “argument 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 argument portion of an appellate brief
must include a pertinent discussion of the particular
point raised along with discussion and citation of
pertinent authorities. This Court will not consider
the merits of an argument which fails to cite relevant
case or statutory authority. Failure to cite relevant
legal authority constitutes waiver of the claim on
appeal.
In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (internal
quotation marks and citations omitted).
In this case, Appellant’s brief consists of his argument heading, which
we have quoted above, followed by one sentence stating Appellant is entitled
to a new trial. Appellant’s Brief at 13. Appellant then block quotes an
unattributed “Section 19.110,” which is a jury instruction on material breach
- 10 -
J-A26031-14
of contract. Id. Appellant includes with the quote a block quote to a
subcommittee note, containing citations to two federal district court cases
from the Western District of Pennsylvania.4 Id.In our view, Appellant’s second argument on appeal is woefully lacking
in development as it contains one original sentence and relies entirely on
one unattributed block quote. Appellant’s brief does not make any attempt
to explain the applicability of the quoted charge to this case or provide any
explanation as to why this entitles him to a new trial. As a result, we deem
Appellant’s second issue on appeal waived for lack of development. See In
re Estate of Whitley, supra.
Based on the foregoing, we conclude both of Appellant’s issues on
appeal are either waived or devoid of merit. Accordingly, the trial court’s
December 23, 2013 judgment in favor of MMG and against Appellant is
affirmed. As we have resolved all of Appellant’s issues in MMG’s favor, we
need not address any issues in its cross-appeal. Therefore, MMG’s cross-
appeal is dismissed as moot.
____________________________________________
4
Appellant does not provide a source citation for this instruction or the
subcommittee note that follows it.
- 11 -
J-A26031-14
Judgment affirmed. Cross-appeal dismissed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/20/2014
- 12 -