Brewer, J. v. Andrews, D.

J-A16025-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN BREWER, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DANIEL H. ANDREWS,
Appellee No. 3415 EDA 2014
Appeal from the Judgment Entered December 1, 2014
In the Court of Common Pleas of Chester County
Civil Division at No(s): 13-00663
BEFORE: LAZARUS, OLSON and PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED AUGUST 21, 2015
Appellant, John Brewer, appeals from the judgment entered on
December 1, 2014. We affirm.
The factual background and procedural history of this case are as
follows. Daniel H. Andrews (“Andrews”) owns 2948 Lincoln Highway,
Sadsburyville, PA (“the Property”). In July 2011, Andrews advertised a unit
at the Property for rent. On July 14, 2011, Appellant and Andrews entered
into a pre-lease agreement for a unit at the Property. Andrews informed
Appellant that a rental agreement was contingent on payment of a
$1,404.00 deposit and employment verification. That same day, Appellant
paid Andrews the $1,404.00 deposit. Andrews was thereafter unable to
verify Appellant’s employment. Thus, on July 18, 2011, Andrews returned
Appellant’s deposit and informed Appellant that he could not enter into a
* Retired Senior Judge assigned to the Superior Court
J-A16025-15
rental agreement. Appellant then obtained substitute housing which cost
$185.00 per month more than a unit at the Property.
On January 23, 2013, Appellant commenced this action by filing a
complaint against Andrews. In the complaint, Appellant sought damages for
a violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection
Act (“CPL”), 73 P. S. § 201-1 et seq. A non-jury trial commenced on July
28, 2014. On July 30, 2014, the trial court found in favor of Andrews. On
August 11, 2014, Appellant filed a post-trial motion.1 On October 14, 2014,
the trial court denied Appellant’s post-trial motion. On December 1, 2014,
judgment was entered in favor of Andrews. This timely appeal followed.2
Appellant presents five issues for our review:3
1. Was the [c]ourt in error in its conclusion of law that a
knowing misrepresentation is necessary to establish a
violation of [the CPL]?
2. Was the [trial c]ourt’s [finding] that [Andrews] informed
[Appellant] that as conditions of entering into a rental
1
We note that Appellant’s post-trial motion was timely. See Pa.R.C.P.
227.1 (requiring post-trial motions be filed within ten days of the verdict).
As the tenth day fell on a Saturday, the filing of the post-trial motion on the
following Monday made it timely. See Pa.R.C.P. 106(b).
2
On December 2, 2014, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On December 16, 2014, Appellant filed his concise
statement. On January 5, 2015, the trial court issued its Rule 1925(a)
opinion. All issues raised on appeal were included in Appellant’s concise
statement.
3
Although Appellant’s brief contains six enumerated issues, two of the
issues (numbers 2 and 6 in Appellant’s brief) are identical. See Appellant’s
Brief at 4.
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agreement, he required a deposit of $1,404[.00] and
verification of [Appellant]’s employment in error since there is
no such term found in the terms admitted by [Andrews] to
constitute the terms of the written lease agreement which
was attached to the complaint[?]
3. As a matter of law, given the contradicted facts adduced at
trial, was plaintiff [] entitled to judgment?
4. Must a new trial be granted because [Andrews’] proof failed
to substantiate that a lease had not been created?
5. Was the verdict of the court in finding that no lease was
created manifestly against the weight of the evidence?
Appellant’s Brief at 4 (internal quotation marks omitted).4
In his first issue, Appellant argues that a knowing misrepresentation is
not required to establish a violation of the CPL. As this presents a question
of statutory interpretation, our standard of review is de novo and our scope
of review is plenary. See Gallo v. Conemaugh Health Sys., Inc., 114
A.3d 855, 863 (Pa. Super. 2015) (citation omitted).
In its opinion denying Appellant’s post-trial motion, the trial court
confessed error as to its conclusion of law. See Trial Court Opinion,
10/14/14, at 3 n.1. We agree with Appellant and the trial court that the trial
court’s conclusion of law was incorrect. The CPL prohibits “fraudulent or
deceptive conduct which creates a likelihood of confusion or of
misunderstanding.” 73 P.S. § 201–2(4)(xxi). This Court has held that this
provision does not require a knowing misrepresentation. See Bennett v.
A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 154 (Pa.
4
We have re-numbered the issues for ease of disposition.
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Super. 2012). Instead, Appellant was required to prove that Andrews’
actions were capable “of being interpreted in a misleading way.” Id.Although the trial court erred with respect to its conclusion of law,
such error was harmless. When viewed as a whole, the trial court’s findings
of fact and conclusions of law evidence the trial court’s belief that Andrews’
actions were not capable of being interpreted in a misleading way.
Specifically, the trial court found that there was no lease formed between
Appellant and Andrews. The receipt of Appellant’s deposit was only one pre-
requisite to Appellant entering into a lease with Andrews. A reasonable
consumer would understand that, in order for the lease to be executed,
Andrews had to verify Appellant’s employment. The trial court – who sat as
the finder of fact – found that Appellant fell short of proving that Andrews’
actions were capable of being interpreted in a misleading way. See Trial
Court Opinion, 10/14/14, at 3 n.1. Thus, the trial court’s error of law was
harmless. See Bensinger v. Univ. of Pittsburgh Med. Ctr., 98 A.3d 672,
683 n.12 (Pa. Super. 2014) (internal alterations and citation omitted) (“An
error is harmless if the court determines that the error could not have
contributed to the verdict.”).
In his second issue, Appellant argues that the trial court’s finding that
Andrews “informed [Appellant] that as conditions of entering into a rental
agreement, he required a deposit of $1,404[.00] and verification of
[Appellant’s] employment” was incorrect. Findings of Fact and Conclusions
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of Law, 7/30/14, at 1. “[T]he trial court’s findings of fact are entitled to
great weight and will be reversed only for clear error[.]” Green v.
Schuylkill Cnty. Bd. of Assessment Appeals, 772 A.2d 419, 426 (Pa.
2001) (citations omitted). In this case, the record supports the trial court’s
factual finding. At trial, Andrews testified that
the conditions [of obtaining a lease] were verification of
[Appellant’s] employment. I really only have two major
requirements. When I do take in a tenant, they just have to
have solid work experience and work history. It has to be solid
work going on, and they have to have the deposit to get into the
unit. And, basically, what I told him I said, Okay. What we are
going to do is we will meet. I will get a deposit, and at that
point, I will get . . . . [w]here you are working, your employment
status, and I will check that out. And after that checks out[,]
assuming it checks out, then we will proceed.
N.T., 7/28/14, at 28.
Appellant argues that Andrews’ testimony contradicts a judicial
admission made in his answer and that the judicial admission controls. This
greatly exaggerates the extent of Andrews’ admission. In his answer,
Andrews admitted that he signed the pre-lease agreement. Answer,
5/31/13, at 1. Andrews also stated in his answer that he “informed
[Appellant] that he was concurrently going to confirm [Appellant’s] income
and employment[.]” Id. at 2. Thus, contrary to Appellant’s argument,
Andrews did not unconditionally concede that he entered into a rental
agreement. Instead, Andrews only conceded that he entered into an
agreement contingent upon verification of Appellant’s employment.
Therefore, based on Andrews’ testimony, the trial court reasonably found
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that Andrews informed Appellant of the employment verification
contingency. Thus, the trial court’s factual finding was not clearly
erroneous.
In his third issue, Appellant contends that the trial court erred by
denying his motion for judgment notwithstanding the verdict (“JNOV”). Our
standard of review when examining a trial court’s denial of a motion for
JNOV “is whether, when reading the record in the light most favorable to the
verdict winner and granting that party every favorable inference therefrom,
there was sufficient competent evidence to sustain the verdict.” Koller
Concrete, Inc. v. Tube City IMS, LLC, 115 A.3d 312, 320–321 (Pa. Super.
2015) (citation omitted). “Concerning questions of credibility and weight
accorded the evidence at trial, we will not substitute our judgment for that of
the finder of fact. If any basis exists upon which the court could have
properly made its award, then we must affirm the trial court’s denial of the
motion[.]” Brown v. Trinidad, 111 A.3d 765, 769–770 (Pa. Super. 2015).
Appellant argues that Andrews’ concession that he signed the pre-
lease agreement was dispositive in this case. As noted above, however,
Andrews did not unconditionally concede that he entered into an a rental
agreement. Instead, Andrews only conceded that he entered into an
agreement contingent upon verification of Appellant’s employment.
There was sufficient evidence presented at trial that no lease was
created. The trial court credited Andrews’ testimony and found Appellant’s
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contrary testimony to be “odd” and not credible. Trial Court Opinion,
10/14/14, at 3 n.1. As noted by the trial court, the entire theory of
Appellant’s case is that he entered into a lease with Andrews. See id. As
no lease was entered into, Andrews’ refusal to permit Appellant to move into
a unit at the Property did not violate the CPL. Accordingly, there was
sufficient evidence to support the trial court’s verdict.
In his fourth issue, Appellant argues that he is entitled to a new trial.
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. Koller, 115 A.3d at 322 (citation omitted). The trial court
denied Appellant’s motion for new trial because it determined Appellant and
Andrews did not enter into a lease agreement. As noted above, there was
sufficient evidence for the trial court’s finding. Thus, we find no abuse of
discretion in the trial court’s decision to refuse a new trial.
In his final issue, Appellant argues that the verdict was against the
weight of the evidence. As noted above, the trial court served as the fact-
finder in this case. “We will respect a trial court’s findings with regard to the
credibility and weight of the evidence [after a bench trial] unless the
appellant can show that the court’s determination was manifestly erroneous,
arbitrary and capricious[,] or flagrantly contrary to the evidence.” J.J.
DeLuca Co., Inc. v. Toll Naval Assocs., 56 A.3d 402, 410 (Pa. Super.
2012) (internal quotation marks and citation omitted).
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We have reviewed all of the evidence presented at trial and conclude
that the trial court’s findings are not “manifestly erroneous, arbitrary and
capricious[,] or flagrantly contrary to the evidence.” Id. Other than the
arguments Appellant raised as to the sufficiency of the evidence, he does not
present any argument for why the verdict was against the weight of the
evidence. Accordingly, we conclude that Appellant’s last issue is without
merit.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/21/2015
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