Landis & Setzler PC v. Aamodt, N.

J-A20017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
LANDIS & SETZLER, PC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NORMAN AND MARJORIE AAMODT, H/W
Appellants No. 2433 EDA 2013
Appeal from the Judgment Entered October 31, 2013
In the Court of Common Pleas of Chester County
Civil Division at No(s): 11-14116
BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED AUGUST 22, 2014
Appellants, Norman Aamodt and Marjorie Aamodt, appeal pro se from
the October 31, 2013 judgment entered in favor of Appellee, Landis &
Setzer, PC, in the amount of $7,519.00 on its breach of contract claim
against Appellants. After careful review, we affirm on the basis of the well-
reasoned November 12, 2013 trial court opinion authored by the Honorable
Robert J. Shenkin.
We summarize the factual and procedural history of this case as
follows. Appellants hired attorney David Melman, Esquire (Attorney
Melman) of Appellee law firm, to represent them in an ongoing appeal in the
case of Aamodt v. Levin, 947 A.2d 819 (Pa. Super. 2007) (unpublished
J-A20017-14
memorandum), appeal denied, 959 A.2d 318 (Pa. 2008).1 Appellants also
hired Attorney Melman to represent them in the case on remand from the
appeal to the Court of Common Pleas of Philadelphia County at civil docket
no. 002368 (the Remand Case) regarding the molding of a verdict to
include, inter alia, pretrial interest. Appellants discharged Attorney Melman
prior to the final hearing on molding their verdict in the Remand Case, where
they proceeded pro se.2 A fee dispute then arose between Appellee and
ng the
aforementioned appeal.
Appellee initiated the instant action for unpaid fees before magisterial
district judge, Mark Bruno, who entered a judgment in its favor and against
Appellants in the amount of $6,141.00 on December 2, 2011. Appellee filed
a de novo appeal to the Court of Common Pleas on December 20, 2011. On
June 22, 2012, Appellee filed its complaint for breach of contract against
Appellants. Appellants filed an answer, new matter and counterclaim on July
13, 2012. Appellants alleged it was Appellee who was in breach of contract
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1
represent Appellants in opposing a motion for reconsideration and a petition
for allowance of appeal.
2
Appellants contend they were compelled to discharge Attorney Melman
because he would not advocate their position as to what should be the
proper commencement date for the calculation of pretrial interest due. The
substance of this difference of opinion is discussed more fully by the trial
court in its November 12, 2013 Rule 1925(a) opinion, which we adopt
herewith.
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for failing to represent their position regarding the molding of the verdict in
the Remand Case
7/13/12, at 3, 5, ¶¶ 12, 31. Appellants also made an averment of emotional
damages. Id. at 5, ¶ 34.
The case proceeded to compulsory arbitration. On August 13, 2012,
the Arbitrators entered an award in favor of Appellee for $9,411.12 on its
Appellants filed a notice of appeal from the arbitration award on September
11, 2012, and the matter proceeded to a two-day jury trial, commencing
April 15, 2013. At the conclusion of testimony, the trial court granted
rdict against Appellants on their
counterclaim. Appellants filed timely post-trial motions, which the trial court
denied on July 24, 2013. Appellants filed a notice of appeal on August 20,
2013.3 Appellants and the trial court have complied with Pennsylvania Rule
of Appellate Procedure 1925.
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3
appeal was premature. See Pa.R.A.P. 301. By per curiam order dated,
October 24, 2013, this Court directed Appellants to praecipe for entry of
judgment with the trial court prothonotary. Appellants complied on October
31, 2013, and judgment was entered. Thus, we now have jurisdiction over
this appeal pursuant to Pa.R.A.P. 905(a notice of
appeal filed after the announcement of a determination but before the entry
of an appealable order shall be treated as filed after such entry and on the
ts Ctr.,
Inc., 948 A.2d 834, 842 n. 1 (Pa. Super. 2008) (under Rule 905(a)(5),
subsequent entry of judgment perfected premature appeal), affirmed, 2 A.3d
526 (Pa. 2010).
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On appeal, Appellants raise the following issues for our consideration.
1. Whether the [trial] court abused its discretion
by directing a verdict in favour of [Appellee] and
motion for non-suit,
a. where the court admitted that a
jury could find breach of contract
but [Appellants] did not prove damages,
whereas the court would not allow
to breach of contract to represent
and fair testimony of emotional damages in
respect to breach of contract to
represent [Appellants] in opposition to a
petition for a charging lien, and/or where there
payment on a contract that was breached,
and/or,
b. where the court thwarted
testimony admitting fraud, overlooked tolling
of the statute of limitations for filing a claim of
fraud by concealment of fraud
until filing the instant claim, and/or
c. where the court demanded
[Appellants] close of their case before their
exhibits were entered, depriving [Appellants]
of this evidence.
2. Whether the court abused its discretion by
instructing the jury as to the evidence as to
claim,
a. by directing the jury on
computation of the amount owed by
[Appellants], and/or
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b. by allowing [Appellee] to amend its
claim in line with the amount the court
instructed the jury was owed by [Appellants],
and/or
c. by failing to instruct the jury to
determine whether [Appellee] breached its
contract and as to the applicable law for an
award of damages of the amount [Appellants]
paid on the contract.
3. Whether the jury erred by finding in favour of
claim when the evidence before the jury
showed breach of contract.
-5.
All
evidentiary proffers relative to those claims.
not to grant judgment in favor of one of the parties,
we must consider the evidence, together with all
favorable inferences drawn therefrom, in the light
most favorable to the verdict winner. Our
standard[s] of review when considering the motions
for a directed verdict and judgment notwithstanding
the verdict [JNOV] are identical. We will reverse a
JNOV] only when we find an abuse of discretion or
an error of law that controlled the outcome of the
case. Further, the standard of review for an
appellate court is the same as that for a trial court.
There are two bases upon which a [directed
verdict or JNOV] can be entered; one, the movant is
entitled to judgment as a matter of law and/or two,
the evidence is such that no two reasonable minds
could disagree that the outcome should have been
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rendered in favor of the movant. With the first, the
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.
Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012),
quoting, Campisi v. Acme Mkts., Inc., 915 A.2d 117, 119 (Pa. Super.
2006), appeal denied, 69 A.3d 243 (Pa. 2013). an appellate
trial court abused its discretion; however, where the evidentiary ruling turns
Buckman v. Verazin, 54 A.3d
956, 960 (Pa. Super. 2012) (citation omitted), appeal denied, 77 A.3d 1258(Pa. 2013).
Appellants begin their argument by asserting the trial court erred in
determining that they failed to properly plead or prove a case for fraud
within the relevant statute of lim
or
Id. at 19.
court that no claim of fraud was alleged by Appellants against Appellee. The
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sections of their answer, referenced by Appellants as asserting a fraud claim,
Answer, New Matter and Counterclaim, 7/13/12, at 3-4, ¶¶ 13, 19, 22, 29;
-20. They do not aver any fraud in connection with
the underlying relationship or transactions between the parties with
sufficient particularity required by Pennsylvania Rule of Civil Procedure
1019(b).4
Appellants additionally assert, d have been
Answer, New Matter and Counterclaim, 7/13/12, at 5, ¶ 27. We agree with
the trial court that such damages are not recoverable in the instant action.
[D]amages for emotional distress are not ordinarily
allowed in actions for breach of contract. There are
only two exceptions. The first is where the emotional
distress accompanies bodily injury. This usually
takes the form of an action in tort. The second
exception occurs where the breach is of such a type
that serious emotional disturbance is a particularly
likely result.
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4
The Rule provides as follows.
Rule 1019. Contents of pleadings. General and
Specific Averments
(b) Averments of fraud or mistake shall be
averred with particularity. Malice, intent, knowledge,
and other conditions of mind may be averred
generally.
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Rittenhouse Regency Affiliates v. Passen, 482 A.2d 1042, 1043 (Pa.
Super. 1984) (citations omitted). Instantly, as discussed by the trial court,
these exceptions do not apply. See Trial Court Opinion, 11/12/13, at 4-5.
characterized as a cause of action for breach of contract or fraud, failed
because Appellants did not establish they were damaged. Id. at 4-5.
Remand Case, but failed to advocate the position Appellants wished to
advance relative to the commencement date for pre-trial interest in molding
the verdict.
The Superior Court Order was the law of the case,
having survived appeal. The trial court [in the
Remand Case] violated the case law by failing to
adhere to the Superior Court order in molding
[The trial court in the instant case] committed
gross error and abused [its] discretion by upholding
the trial court decision [in the Remand Case] by
finding it was correct and by upholding it over the
Superior Court order.
The trial court sets forth the factual and procedural history of the
Remand Case in its November 12, 2013 opinion and concludes the following.
determination of the date from which pre-judgment
interest began to accrue and it is that disagreement
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based upon a wholly flawed understanding of
the law as well as a convenient failure to
remember a critical fact that is at the crux of
the present litigation.
Trial Court Opinion, 11/12/13, at 2 (emphasis in original).
We agree. In remanding the Remand Case for calculation of
prejudgment interest, this Court did not make any determination of the
correct commencement date to be employed, rather we held that the trial
prejudgment and post- can be determined with a
reasonable amount of certainty and through an audit to calculate the
and, therefore, remanded for said calculation. Aamodt,
supra at 10
of the case as to that determination. Further, Appellants did not appeal the
the Remand Case and the doctrine of collateral
estoppel precludes a relitigation of that judgment in the instant proceeding.
the second action is upon a different cause of
action[,] the judgment in the prior suit precludes
relitigation of issues actually litigated and necessary
to the outcome of the first action. Modern collateral
estoppel doctrine no longer requires mutuality; a
litigant who was not a party to the initial litigation
may now use collateral estoppel offensively in a new
suit against the party who lost on the decided issue
in the initial case.
In Re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012) (internal quotations,
citations, and footnote omitted).
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Appellants, in their final issue, contend the trial court erred in its
-28. Essentially, Appellants
merely recast their argument that their counter claim against Appellees for
breach of contract should have been submitted to the jury. a
contract will not be heard to accuse the other party of breaching the contract
citing Archer v. State Farm Ins.
Co., 615 A.2d 779, 785 (Pa. Super. 1992), appeal denied, 629 A.2d 1375proper for the reasons outlined above, there was no occasion for the trial
court to instruct the jury on those claims.
After careful review of the entire record, we conclude that the trial
-reasoned November 12, 2013 Rule 1925(a)
claims, identifies the proper standard of review, discusses the relevant law
and explains the basis for its conclusion that said claims lack merit.
Accordingly, we discern no error or abuse of discretion which could afford
Appellants relief. In as much as the conclusions expressed in said opinion,
regarding Appellants
damages for any alleged breach of contract by Appellee, and the adequacy
t with ours, we adopt it
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as our own for purposes of further appellate review. See Trial Court
Opinion, 11/12/13.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2014
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