Hargy, D. v. Bucci, D.

J-A11029-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DEBORAH R. HARGY, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
DOM BUCCI, INDIVIDUALLY AND AS
AGENT FOR CENTURY 21 CREST REAL
ESTATE, LTD. AND CENTURY 21 CREST
REAL ESTATE, LTD.,
Appellees No. 3044 EDA 2014
Appeal from the Order Entered October 17, 2014
In the Court of Common Pleas of Delaware County
Civil Division at No(s): No. 13-2106.
BEFORE: FORD ELLIOTT, P.J.E, OLSON AND WECHT, JJ.
MEMORANDUM BY OLSON, J.: FILED JULY 14, 2015
Appellant, Deborah R. Hargy, appeals from the order granting
Appellees’ motion for summary judgment entered on October 17, 2014. We
affirm.
The trial court accurately summarized the factual background of this
case as follows:
Appellant entered into a residential agreement of sale on or
about March 22, 2007 with [Dom Bucci and Century 21 Crest
Real Estate, Ltd. (collectively “Bucci”)] acting as a dual-agent for
Appellant and the seller of the property. Appellant alleges that
on July 27, 2007, Bucci caused a [s]ettlement [n]otice to be
issued to Appellant with less than the required ten [] day notice
and then, on July 29, 2007, informed her that the scheduled
August 1, 2007 settlement was canceled. According to
Appellant, she relied on [Bucci’s] representation in not attending
the settlement that did in fact take place on August 1, 2007.
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Appellant alleges further that on September 12, 2007 the seller
informed her that [Bucci] represented that Appellant never made
any mortgage applications, did not intend to make any mortgage
applications, would not proceed to settlement[,] and had not
provided a legally cognizable reason for not proceeding to
settlement.
On May 8, 2008, the seller sued Appellant for breach of contract
for not attending settlement, not applying for a mortgage[,] and
not securing approval for a mortgage loan. A verdict was
entered against Appellant on or about March 15, 2011 finding
her in material breach of the agreement of sale and awarding
the seller damages, including Appellant’s deposit in the amount
of [$10,000.00]. Subsequently, on or about July 13, 2012, an
[o]rder was [entered] awarding the seller attorney[‘s] fees based
upon findings that, inter alia, Appellant and her counsel
exhibited dilatory, obdurate, vexatious[,] and bad faith conduct,
that Appellant voluntarily undertook to absent herself from the
scheduled settlement on August 1, 2007 because she self-
admittedly deemed the settlement notice invalid, and that
Appellant failed to timely submit the name of the requisite
mortgage lender to [Bucci].1
Trial Court Opinion, 12/17/14, at 1-2 (internal quotation marks, alteration,
and citations omitted).
The trial court accurately summarized the procedural history of this
case as follows:
On March 11, 2013, Appellant filed suit against [Bucci] with
claims for deceit, professional malpractice, intentional
interference with a contractual relationship or business relations,
breach of fiduciary duty to principal[,] and fraud. Appellant’s
deceit claim is based upon [Bucci’s] alleged false representation
on July 27, 2007 that the August 1, 2007 settlement was
canceled. Appellant’s claim for professional malpractice is
1
This Court dismissed Appellant’s appeal from the judgment entered in the
breach of contract case brought by the seller against Appellant, and affirmed
the order granting attorney’s fees. Hargy v. J & V Developers, 1027 EDA
2011 (Pa. Super. May 23, 2011) (per curiam); J & V Developers v. Hargy,
87 A.3d 890 (Pa. Super. 2013) (unpublished memorandum).
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related to [Bucci’s] alleged failure to give the seller Appellant’s
mortgage applications, failure to use a [n]otice of [t]ermination
of [a]greement of [s]ale/[a]greement of [s]ale [r]elease and
[d]istribution of [d]eposit [m]oney form, breach of duty of
loyalty, breach of fiduciary duty and/or exaggeration,
misrepresentation[,] or concealment of pertinent facts. The
claim that [Bucci] intentionally interfered with a contractual
relationship or business relations is based upon [Bucci’s] alleged
false representation that the August 1, 2007 settlement was
canceled, failure to provide the seller with Appellant’s mortgage
applications, false representation to seller that [Appellant] no
longer wanted to purchase the property, false representation to
seller that it was free to put the subject property back on the
market, [and] false representation to Appellant that the
agreement of sale was still in force after August 1, 2007. . . .
Appellant’s claim that [Bucci] breached their fiduciary duty to a
principal relates to [Bucci’s] alleged adverse actions, bad faith
conduct[,] and conduct inconsistent with their agency to
Appellant, including representing that the August 1, 2007
settlement was canceled and testifying that Appellant was not
told the settlement was canceled. Appellant’s final claim, fraud,
is based upon [Bucci’s] alleged misrepresentation that the
August 1, 2007 settlement was canceled.
Following preliminary objections, Appellant filed an [a]mended
[c]omplaint on June 10, 2013. [Bucci’s] subsequent preliminary
objections, filed on July 2, 2013, were overruled by [o]rder
dated September [4], 2013. Bucci filed an [a]nswer and [n]ew
[m]atter on September 24, 2013 claiming, inter alia, that
Appellant’s claims are barred by the applicable statute of
limitations and the doctrines of res judicata and collateral
estoppel. A [m]otion for [m]ediation was filed by Appellant[] on
November 20, 2013 and on December 9, 2013 the parties
entered into a [s]tipulation to attend mediation pursuant to
Delaware County Rule of Civil Procedure 1042.21, which was
approved by [o]rder on February 10, 2014. On June 17, 2014,
the parties attended mediation, but were not able to settle the
matter. That same day, [Bucci] filed their motion for summary
judgment. Appellant filed a [r]eply [m]emorandum to [Bucci’s]
[s]ummary [j]udgment [motion] on July 14, 2014. . . .
On August 13, 2014, Appellant filed a [p]raecipe to [l]ist [Bucci’s
s]ummary [j]udgment [m]otion for [o]ral [a]rgument stating
that a second mediation was scheduled for September 15, 2014
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and that both parties were seeking oral argument on [Bucci’s
m]otion for [s]ummary [j]udgment on or after October 1, 2014.
Pursuant to that [p]raecipe, [argument] was held on [Bucci’s
m]otion for [s]ummary [j]udgment on October 2, 2014 and,
thereafter, the October 1[7], 2014 Order was entered granting
summary judgment in [Bucci’s] favor.
Trial Court Opinion, 12/17/14, at 3-4 (internal citations omitted). This
timely appeal followed.2
Appellant presents two issues for our review:
1. Was it error of law, error of fact[,] and/or abuse of discretion
for the [trial court] to conclude [A]ppellant could have
produced an expert report in violation of the parties’
mediation agreement (pursuant to Local Rule 1042.21),
and/or in violation of Pa.R.C.P. 1035.3, without the leave of
court (pursuant to Pa.R.C.P. 1035.3) [A]ppellant requested?
2. Was such error of law, error of fact[,] and/or abuse of
discretion harmless error?
Appellant’s Brief at 4.
In her first issue on appeal, Appellant contends that the trial court
erred by concluding that she could have filed an expert report prior to the
trial court entering summary judgment. This question requires us to
interpret various rules of court and the parties’ agreement to attend
2
On November 12, 2014, Appellant filed a concise statement of errors
complained of on appeal without being ordered to do so by the trial court.
On December 19, 2014, the trial court issued its Rule 1925(a) opinion. Both
issues raised on appeal were included in Appellant’s concise statement.
Nonetheless, we note that Appellant’s concise statement “fails in most
respects to comply with the requirements of the Rule, including, most
notably, that it is not concise.” PHH Mortg. Corp. v. Powell, 100 A.3d
611, 614 (Pa. Super. 2014). The trial court, however, did not find that
Appellant acted in bad faith. We therefore cannot find all issues waived.
See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 420-
421 (Pa. 2007).
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mediation. As such, our standard of review is de novo and our scope of
review is plenary. Roth v. Ross, 85 A.3d 590, 592 (Pa. Super. 2014)
(citation omits) (interpretation of rules of civil procedure is a question of
law); cf. Mazurek v. Russell, 96 A.3d 372, 378 (Pa. Super. 2014) (contract
interpretation is a question of law).
Appellant contends that she was unable to file an expert report prior to
the trial court’s entry of summary judgment because of a confluence of
events. First, she argues that the mediation agreement entered into
between her and Bucci prohibited her from filing the expert report while
mediation was ongoing. She then argues that after mediation failed, she
was prohibited from filing an expert report pursuant to Pennsylvania Rule of
Civil Procedure 1035.3. She concludes that if she had been able to file an
expert report, she would have been able to raise a genuine question of
material fact as to the statute of limitations defense advanced by Bucci.
In her response to Bucci’s motion for summary judgment, Appellant
included an affidavit in which she averred that it was necessary to file an
expert report to raise a genuine issue of material fact. To explain the
absence of an expert report, Appellant attached a letter that Bucci’s counsel
submitted to the trial court. Appellant argued that the letter evidenced an
agreement between her and Bucci not to file expert reports. The relevant
portion of Bucci’s counsel’s letter reads as follows:
As the parties agreed to pursue mediation, substantive discovery
and depositions have not been conducted in an effort to save
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costs and focus the attention of the parties on a possible
resolution. Based on the foregoing, it is respectfully requested
by the parties that the [trial c]ourt vacate the March 17, 2014,
[t]rial [a]ssignment and [c]ase [m]anagement [o]rder during the
pendency of the mediation process.
Appellant’s Reply Memorandum to Defendants’ Summary Judgment Motion,
7/14/14, Exhibit A.
It is evident from the plain language of this letter that the parties
never agreed to halt production of expert reports. Although the parties
decided not to engage in depositions, interrogatories, or document requests,
they did not agree to forego the production of expert reports. Bucci’s filing
of the motion for summary judgment should have clarified any
misconstruction on the part of Appellant. Furthermore, Appellant does not
point to any other place in the record that evidences a broader agreement.
As such, any argument that the agreement between Appellant and Bucci was
broader is waived. See Pa.R.A.P. 2117, 2119.
As the parties’ agreement did not prohibit the filing of expert reports,
Appellant was free to supplement the record with an expert report within 30
days of Bucci’s motion for summary judgment. See Pa.R.C.P. 1035.3.3 She
chose, however, not to supplement the record with an expert report. We
conclude that the trial court correctly held that Appellant was able to file an
expert report within 30 days of Bucci’s motion for summary judgment;
3
Appellant nowhere asserts that additional discovery was necessary for the
production of an expert report. Hence, Appellant cannot complain that the
parties’ agreement to proceed with mediation hindered her acquisition of an
expert opinion.
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however, she failed to do so. Therefore, the trial court correctly granted
Bucci’s motion for summary judgment once Appellant failed to raise a
genuine issue of material fact.4
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
4
Furthermore, even if we concluded the trial court erred by ruling on the
motion for summary judgment without Appellant filing an expert report,
such error was harmless. As this Court noted, Appellant became aware of
Bucci’s alleged malpractice (and related misconduct) in 2007. See J & V
Developers v. Hargy, 87 A.3d 890 (Pa. Super. 2013) (unpublished
memorandum), at 11-12 (citation omitted). Nonetheless, Appellant failed to
file suit until 2013, well after the statute of limitations had expired. No
expert report could cure this deficiency. Likewise, Appellant’s argument that
she could not have expected the verdict in the previous case is without
merit. As this Court has noted, her arguments in the prior litigation were
“frivolous.” Id. at 10, 26 (citation omitted).
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