Carter, J. v. Consol Pennsylvania Coal

J-A20008-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JON HOLBERT CARTER AND PATRICIA IN THE SUPERIOR COURT
W. CARTER, HIS WIFE, OF
PENNSYLVANIA
Appellees
v.
CONSOL PENNSYLVANIA COAL
COMPANY,
Appellant No. 1196 WDA 2017
Appeal from the Order Entered August 7, 2017
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2010-9001
JON HOLBERT CARTER AND PATRICIA IN THE SUPERIOR COURT
W. CARTER, HIS WIFE, OF
PENNSYLVANIA
Appellants
v.
CONSOL PENNSYLVANIA COAL
COMPANY,
Appellee No. 1209 WDA 2017
Appeal from the Order Entered August 7, 2017
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2010-9001
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 08, 2018
Appellants, Jon Holbert Carter and Patricia W. Carter, his wife (referred
to herein as “the Carters”), appeal and Appellee, Consol Pennsylvania Coal
J-A20008-18
Company (“CPCC”), cross-appeals from the trial court’s August 7, 2017 order
denying both parties’ post-trial motions and directing the prothonotary to
enter judgment in favor of the Carters in the amount of $1,000,000.00.1 We
affirm in part and reverse in part.
The trial court summarized the factual background and procedural
history of this case as follows:
In 2005[, CPCC] began an action to quiet title against the Carters
[to] a tract of Pittsburgh coal and support rights containing 1.875
acres. The matter came before the Honorable Katherine Emery
who eventually ruled that title to the coal was vested in [CPCC].
However, at a moment when the presentation of the case had
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1 We note that “[a]n appeal from an order denying post-trial motions is
interlocutory. An appeal to this Court can only lie from judgments entered
subsequent to the trial court’s disposition of post-verdict motions, not the
order denying post-trial motions.” Stahl Oil Co., Inc. v. Helsel, 860 A.2d
508, 511-12 (Pa. Super. 2004) (citation omitted). Although the trial court in
the case sub judice directed the prothonotary to enter judgment on the jury’s
verdict in its order denying the parties’ post-trial motions, the docket reflects
that the prothonotary did not do so. See Pa.R.A.P. 301(c) (“[A] direction by
the lower court that a specified judgment, sentence or other order shall be
entered, unaccompanied by actual entry of the specified order in the docket,
does not constitute an appealable order. Any such order shall be docketed
before an appeal is taken.”); see also Comment to Pa.R.A.P. 301 (“[A]n
appeal is premature where the [c]ourt directs that a judgment [of] sentence
or order be entered in the docket and the prothonotary fails to do so.”) (citing
Friedman v. Kasser, 438 A.2d 1001 (Pa. Super. 1981)). Nevertheless, in
similar circumstances where a prothonotary has failed to enter judgment on
the docket in spite of a trial court’s order to do so, this Court — in the interest
of judicial economy — has elected to “regard as done that which ought to have
been done” and considered the appeal to be properly before it. Stahl, 860
A.2d at 512 (citations and internal quotation marks omitted). We further
discern that, like in Stahl, the docket in the case at bar indicates that both
parties received notice of the trial court’s order for the prothonotary to enter
judgment in the Carters’ favor. See id. Thus, we will likewise treat this appeal
as being properly before us.
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been completed but before Judge Emery made her decision, the
parties entered into a settlement agreement. This agreement,
dated September 20, 2006, provided that for substantial
consideration the Carters would quit-claim their interest in the
1.875 acre tract of coal and mining rights.[2] The agreement
further provided:
2. [CPCC] … will pay to [the Carters] the additional sum of
$1,000,000.00 if and only if the final decision on ownership
of either the coal or the support estate … is in favor of the
Carters. It is agreed and understood that both parties retain
all rights of appeal.
At some later time, an addendum was executed by the parties.
This document provided in relevant part:
Neither Releasor nor Releasee shall add any new party to
[the action]. The parties in good faith agree to diligently
pursue resolution of the various ownership interests.
It is understood and agreed that, as of the date of execution
of the settlement, the issues as to each ownership … is [sic]
before Judge Emery and that the presentation in each case
is complete.
On October 13, 2006, Judge Emery ruled that [CPCC] held fee
simple title to the 1.875 acre quiet title tract of Pittsburgh coal
and mining rights, including a waiver of the right of surface
support. The Carters appealed. On September 10, 2008, the
Superior Court, after reviewing the record, reversed the decision
of the trial court, and directed entry of judgment in favor of the
Carters. [Consol Pennsylvania Coal Co. v. Farmers Nat. Bank
of Claysville], 960 A.2d 121 (Pa. Super. 2008).
[CPCC] petitioned for allowance of appeal to the Pennsylvania
Supreme Court. With nothing before it except the record below
and the [p]etition for [a]ppeal, the Supreme Court, in a per curiam
order, vacated the decision of the Superior Court, and remanded
the case to [the trial court] with instructions to dismiss the quiet
title action for failure to join indispensable parties. [Consol
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2 The trial court noted that “the jury heard that immediately after execution
of the [s]ettlement [a]greement, [CPCC] removed all the coal within the
[q]uiet [t]itle tract and thereby avoided a costly interruption of its long wall
panel.” Trial Court Memorandum (“TCM”), 7/20/2017, at 4.
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Pennsylvania Coal Co. v. Farmers Nat. Bank of Claysville,
969 A.2d 565 (Pa. 2009).]
[With respect to the indispensable parties identified by our
Supreme Court, t]he original cloud on the title in the quiet title
action was a “reservation” of a “privilege of the coal” in an 1840
deed from Joseph Carroll to Francis Moffitt. The Carters had raised
preliminary objections to the quiet title complaint[,] arguing that
the heirs of Joseph Carroll were indispensable parties.[3] These
objections were overruled by the trial court and that ruling was an
issue complained of in the Carters’ appeal to the Superior Court.[4]
On October 19, 2010, the Carters filed a complaint against [CPCC]
and then an amended complaint. Their claim is that [CPCC]
breached the settlement agreement when it argued in its
[p]etition for [a]llowance of [a]ppeal that the record supported
only two possible interpretations of the 1840 deed and the 1906
Pittsburgh coal severance deed: that either [CPCC] owned the
quiet title tract or the heirs of Joseph Carroll did. This, to the
Carters, represented a breach of the settlement agreement
because it contradicted the argument [CPCC] made to Judge
Emery when the issue of the Carroll [h]eirs being indispensable
was raised in preliminary objections. This change of position
constitutes bad faith on the part of [CPCC] and violates the
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3 CPCC had disagreed, arguing before the trial court that “it is clear that the
heirs of Joseph Carroll have no rights as it relates to the [q]uiet [t]itle [t]ract
and consequently are not indispensable parties[.]” See Carters’ Amended
Complaint, 12/27/2010, at Exhibit A (CPCC’s Brief in Opposition to the Carters’
Preliminary Objections).
4 In the Carters’ Pa.R.A.P. 1925(b) concise statement of errors complained of
on appeal, they had asserted that “[t]he trial court erred by failing to sustain
the [p]reliminary [o]bjection of the Carters with respect to the fact that
[CPCC] failed to join necessary parties including the heirs of Joseph Carroll
and others in the chain of title.” See CPCC’s Motion for Judgment on the
Pleadings and/or Summary Judgment, 9/26/2011, at Exhibit D (the Carters’
concise statement in the previous case). The Carters, however, explained that
“[t]he Statement of Questions Involved section of the Carters’ [b]rief before
the Superior Court did not raise the indispensable party issue as one to be
considered and the Superior Court never addressed it.” Carters’ Amended
Complaint at ¶ 13.
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agreement that the presentation of each party’s case was
complete.
In December of 2016, the matter came to be heard by a jury and
on December 8[, 2016,] the jury returned a verdict in favor of the
Carters and against [CPCC] in the amount of $1,000,000.00.
[CPCC] filed a timely motion for post-trial relief, the testimony was
transcribed, each side filed briefs[,] and [the trial court] heard oral
argument. The Carters also filed post-trial motions to mold the
verdict to add pre[-]judgment interest and to request sanctions
for an interlocutory appeal in 2011 by [CPCC] that was quashed
by the Superior Court.
TCM at 1-3 (some brackets added).
The trial court ultimately denied both parties’ post-trial motions, and
each party subsequently filed notices of appeal. The trial court ordered the
Carters and CPCC to file concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), and they each timely complied. Thereafter,
this Court sua sponte consolidated their appeals.
For ease of disposition, we will first address the following issues raised
by CPCC:
1. Whether the trial court committed an abuse of discretion or
error of law when it denied CPCC’s request for judgment
n.o.v. [(“JNOV”)] where the Carters did not present
sufficient evidence that CPCC breached the patently
unambiguous terms of the [s]ettlement [a]greement?
2. Whether the trial court committed an abuse of discretion or
an error of law when it denied CPCC’s request for [JNOV].
where the Carters did not present sufficient evidence that
CPCC caused damages to the Carters as a direct
consequence of CPCC’s purported breach of the [s]ettlement
[a]greement?
3. Whether the trial court committed an error of law, which led
to an incorrect result when it denied CPCC’s proposed jury
interrogatory on causation, which required the jury to find a
causal connection between CPCC’s purported breach of the
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[s]ettlement [a]greement and the Carters’ alleged
damages?
CPCC’s Brief at 5.
In its first issue, CPCC claims that the trial court erred when it denied
CPCC’s request for JNOV where the Carters did not present sufficient evidence
that CPCC breached the patently unambiguous terms of the settlement
agreement. See CPCC’s Brief at 5, 23.5 CPCC asserts that the settlement
agreement is patently unambiguous and the Carters’ interpretation of it
“should not — as a matter of law — have been submitted to the jury for
interpretation and/or consideration.” Id. at 26. Further, CPCC argues that if
the trial court had interpreted the unambiguous language of a contractual
provision in the settlement agreement in a way that did not annul another
part of the agreement, it would have concluded that “CPCC could make any
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5 In the argument section of CPCC’s brief, CPCC contests the trial court’s denial
of its oral motion for nonsuit — rather than the denial of its subsequent request
for JNOV — due to insufficient evidence of breach. CPCC’s Brief at 23. CPCC’s
claim that the trial court should have granted its motion for compulsory
nonsuit is moot; instead, we consider its argument regarding the sufficiency
of the evidence of breach in the context of whether it is entitled to JNOV. See
Whitaker v. Frankford Hosp. of City of Philadelphia, 984 A.2d 512, 517
(Pa. Super. 2009) (explaining that “[o]nce a jury verdict in favor of [the
a]ppellees was entered, the issue became whether the trial court erred in
failing to grant them [JNOV]”) (citations omitted); Underwood ex rel.
Underwood v. Wind, 954 A.2d 1199, 1206 (Pa. Super. 2008) (“Because
[the] appellant proceeded with her defense following the denial of her motion
for a compulsory nonsuit, ‘the trial court’s ruling on the [motion] was rendered
moot[,]’ and we do not rule on the correctness of [the] court’s ruling as such.
We consider [the] appellant’s argument in its proper context, as an appeal
from the denial of [the appellant’s] motion for [JNOV] and/or a new trial, as
included in her post-trial motion.”) (citations omitted; some brackets added).
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argument as to ownership of the quiet title tract it wanted to on appeal.” Id.
at 27.
We apply the following standard of review:
[T]he standard of review for an order granting or denying [JNOV]
is whether there was sufficient competent evidence to sustain the
verdict. We must view the evidence in the light most favorable to
the verdict winner and give him or her the benefit of every
reasonable inference arising therefrom while rejecting all
unfavorable testimony and inferences. Furthermore, [JNOV]
should be entered only in a clear case, where the evidence is such
that no reasonable minds could disagree that the moving party is
entitled to relief. Review of the denial of [JNOV] has two parts,
one factual and one legal:
Concerning any questions of law, our scope of review is
plenary. Concerning questions of credibility and weight
accorded evidence at trial, we will not substitute our
judgment for that of the finder of fact.
Underwood, 954 A.2d at 1206 (citation omitted).
Moreover, with respect to contracts, our Supreme Court has explained:
A contract is ambiguous if it is reasonably susceptible of different
constructions and capable of being understood in more than one
sense. While unambiguous contracts are interpreted by the court
as a matter of law, ambiguous writings are interpreted by the
finder of fact.
Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (internal citations omitted).
In addition, “it is axiomatic that contractual clauses must be construed,
whenever possible, in a manner that effectuates all of the clauses being
considered. … [O]ne part of a contract cannot be so interpreted as to annul
another part and … writings which comprise an agreement must be interpreted
as a whole.” Lenau v. Co-eXprise, Inc., 102 A.3d 423, 430 (Pa. Super.
2014) (internal citations, brackets, and quotation marks omitted).
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Here, in its petition for allowance of appeal to our Supreme Court, CPCC
stated, “The only issue was whether the coal retained in 1840 included the
Pittsburgh Vein (as opposed to some other coal deposit). [6] If it did, neither
[CPCC] nor the Carters obtained it; if it did not, [CPCC] obtained it when the
1906 coal deed conveyed all of the Pittsburgh Vein of coal except the coal
retained in 1840.” CPCC’s Petition for Allowance of Appeal, 12/24/2008, at 4;
see also id. at 15 n.4 (noting that “the Superior Court did not consider the
fact that the coal in question … had already been reserved to the grantor in
the 1840 deed[,]” i.e., Joseph Carroll). As mentioned earlier, this argument
contradicted CPCC’s prior position, where it insisted before the trial court that
“the heirs of Joseph Carroll have no rights as it relates to the [q]uiet [t]itle
[t]ract and consequently are not indispensable parties.” See footnote 3,
supra.7 We reiterate that our Supreme Court subsequently vacated the
decision of this Court directing judgment in favor of the Carters, and remanded
the case to the trial court with instructions to dismiss the quiet title action for
failure to join indispensable parties, naming specifically the successors in
interest to the Carrolls as indispensable herein.
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6 By way of background, “the [q]uiet [t]itle [t]ract consists of coal in the
Pittsburgh Vein of Coal through which [CPCC] intend[ed] to longwall mine.”
See, e.g., Consol Pennsylvania Coal Company, 960 A.2d at 124 (quoting
the trial court opinion).
7 It also contradicted CPCC’s representations before this Court. See Consol
Pennsylvania Coal Company, 960 A.2d at 129 (“The parties do not dispute
that when Margaret Simpson[, the grantor in the 1906 deed,] acquired
ownership of the land at issue, she received a complete ownership of all the
estates in, under and above the land.”).
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Nevertheless, CPCC maintains that it did not breach the settlement
agreement. Specifically, it explains:
[T]he [s]ettlement [a]greement clearly stated that “[i]t is
understood and agreed that, as of the date of the execution of the
settlement, the issues as to each ownership in each case [are]
before Judge Emery and that the presentation in each case is
complete.” The [s]ettlement [a]greement further provides that
“[i]t is agreed and understood that both parties retain all rights of
appeal.” The plain language from these two provisions is patently
unambiguous.
Taken together, these provisions clearly state that neither party
was permitted to augment their presentation of the case before
Judge Emery, and the parties reserved “all” rights of appeal.
Accordingly, CPCC did not waive its right to raise any argument
as to ownership of the quiet title tract before the Superior Court
or the Supreme Court as the Carters contend. Without question,
if CPCC by virtue of signing the [s]ettlement [a]greement waived
its right to raise any argument it wanted to as to ownership of the
quiet title tract on appeal including the idea that the Carroll heirs
are purportedly an indispensable party, then the provision of the
[s]ettlement [a]greement wherein both parties reserved “all”
rights of appeal would be rendered inoperative. It is paradoxical
to conclude that CPCC reserved “all” rights of appeal, but
simultaneously waived its right to raise a particular argument on
appeal.
CPCC’s Brief at 24-25 (footnote and internal citations omitted; emphasis in
original; some brackets added).
We reject CPCC’s argument. As the Carters discern, CPCC’s argument
“fails to consider the numerous other provisions in the [s]ettlement
[a]greement likewise due enforcement which defined the ground rules for the
appellate proceedings.” Carters’ Reply Brief at 10-11. In particular, the
settlement agreement also provides that “[n]either Releasor or Releasee shall
add any new party to [the] action except both parties shall have the right to
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add any successor or assign[,]” and that “[t]he parties in good faith agree to
diligently pursue resolution of the … ownership interests.” See Settlement
Agreement at Exhibit B. Further, the Carters agreed therein to deliver a letter
to the Pennsylvania Department of Environmental Protection (“DEP”) advising
that “they no longer have any claims, right, title or interest in said coal and
that all of their said interest has been transferred to [CPCC]” and it may mine
the quiet title tract. See id. at Exhibit A. In light of the language in the
settlement agreement prohibiting new parties from being added to the action,
promising good faith, and having the Carters represent to the DEP that CPCC
may now mine the coal in question, the settlement agreement does not accord
with allowing CPCC to raise the possibility on appeal, for the first time and
counter to its prior position, that the Carroll heirs — or some other person —
may own the coal. Thus, we disagree with CPCC that the settlement
agreement is patently unambiguous, and determine that the trial court did not
err in denying CPCC’s request for JNOV due to insufficient evidence of breach.
In its second issue, CPCC challenges whether the trial court should have
entered JNOV in its favor “where the Carters did not present sufficient
evidence that CPCC caused damages to the Carters as a direct consequence
of CPCC’s purported breach of the [s]ettlement [a]greement[.]” CPCC’s Brief
at 5.8 CPCC argues that our Supreme Court provided no opinion explaining
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8 CPCC similarly avers in its argument section that the trial court erred in
denying its oral motion for nonsuit due to insufficient evidence of a causal
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why it found the Carrolls to be indispensable parties, and therefore “it is mere
speculation for the parties to guess how the Supreme Court arrived at its
conclusion….” CPCC’s Reply Brief at 9. CPCC says that the parties do not
dispute that there are three possible explanations for our Supreme Court’s
decision: (1) the Court reached its finding sua sponte,9 (2) it was “based upon
the numerous times in the Reproduced Record that the Carters raised the
issue of the Carroll heirs being a purported indispensable party,” or (3) the
Court made the finding due to “the statements made by CPCC in its [p]etition
for [a]llowance of [a]ppeal.” See id. at 10-11.10 As two of the three possible
explanations mean that CPCC did not cause any damages to the Carters by its
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connection. See CPCC’s Brief at 27. For the reasons already set forth above,
we consider this claim in the context of whether CPCC should have been
granted JNOV. See footnote 5, supra.
9 See Pa.R.C.P. 1032(b) (“Whenever it appears by suggestion of the parties
or otherwise that the court lacks jurisdiction of the subject matter or that there
has been a failure to join an indispensable party, the court shall order that the
action be transferred to a court of the Commonwealth which has jurisdiction
or that the indispensable party be joined, but if that is not possible, then it
shall dismiss the action.”); Orman v. Mortgage I.T., 118 A.3d 403, 406 (Pa.
Super. 2015) (“Under Pennsylvania law, the failure to join an indispensable
party implicates the trial court’s subject matter jurisdiction. Failure to join an
indispensable party goes absolutely to the court’s jurisdiction and the issue
should be raised sua sponte.”) (citations and internal quotation marks
omitted).
10 The Carters counter that “it was CPCC’s attorney who introduced the
concept of there being three options which possibly could have led the jury to
find a causal connection between what CPCC argued in its [b]rief and the
decision of the Supreme Court.” Carters’ Reply Brief at 20-21. As discussed
further infra, they maintain that there is “no doubt why the Supreme Court
ruled as it did.” Id. at 25.
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breach, CPCC states that the Carters’ “claimed damages are too remote and
speculative to be recovered as a matter of law….” Id. at 11.
This Court has explained:
In order to recover for damages pursuant to a breach of contract,
the plaintiff must show a causal connection between the breach
and the loss.
Where one party to a contract, without any legal
justification, breaches the contract, the other party is
entitled to recover, unless the contract provides otherwise,
whatever damages he suffered, provided (1) they were such
as would naturally and ordinarily result from the breach, or
(2) they were reasonably foreseeable and within the
contemplation of the parties at the time they made the
contract, and (3) they can be proved with reasonable
certainty.
Logan v. Mirror Printing Co. of Altoona, Pa., 600 A.2d 225, 226 (Pa.
Super. 1991) (citations omitted; emphasis in original). Further, “the test of
whether damages are remote or speculative has nothing to do with the
difficulty in calculating the amount, but deals with the more basic question of
whether there are identifiable damages…. Thus, damages are speculative only
if the uncertainty concerns the fact of damages rather than the amount.” Id.
at 227 (citation omitted; emphasis in original).
We determine that the Carters presented sufficient evidence of a causal
connection between CPCC’s breach and the Carters’ damages. Viewing the
evidence in the light most favorable to the Carters as the verdict winners, and
giving them the benefit of every reasonable inference arising therefrom while
rejecting all unfavorable testimony and inferences, see Underwood, 954
A.2d at 1206, the statements made by CPCC in its petition for allowance of
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appeal constitute the most reasonable and probable impetus for our Supreme
Court’s ruling. Further, the Carters observe that CPCC “seeks to benefit from
its own breach by placing the Carters in the untenable position of having to
prove, in fact, why the Supreme Court ruled as it did. The jury was clearly
within the scope of its authority to infer that the repeated references to the
Carroll [h]eirs in the [p]etition inveigled the Supreme Court to rule as it did.”
Carters’ Reply Brief at 25. Indeed, the Carters explain that they presented
evidence at trial “juxtapos[ing] the relevant portions of [CPCC’s petition and
the Supreme Court’s per curiam order], and said that the Supreme Court
necessarily understood what CPCC was hinting at because its [o]rder
specifically recited ‘the successors in interest to Joseph and Eliza Carroll are
indispensable herein….’” Id. at 13. Our common sense agrees.
Moreover, we struggle with CPCC’s two other possible explanations.
First, “sua sponte” by definition means, “[w]ithout promoting or suggestion;
on its own motion.” Black's Law Dictionary 1650 (10th ed. 2014). In the case
sub judice, evidence shows that CPCC suggested in its petition that the Carroll
heirs were indispensable parties. See CPCC’s Petition for Allowance of Appeal
at 4 (“The only issue was whether the coal retained in 1840 included the
Pittsburgh Vein (as opposed to some other coal deposit). If it did, neither
[CPCC] nor the Carters obtained it; if it did not, [CPCC] obtained it when the
1906 coal deed conveyed all of the Pittsburgh Vein of coal except the coal
retained in 1840.”); see also id. at 15 n.4 (noting that “the Superior Court
did not consider the fact that the coal in question … had already been reserved
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to the grantor in the 1840 deed[,]” i.e., Joseph Carroll). Thus, in light of
CPCC’s suggestion, we consider it inconsistent to conclude that our Supreme
Court raised the issue on its own.
Second, setting aside the statements made in CPCC’s petition, it seems
unlikely that our Supreme Court would have read the Reproduced Record,
identified that the Carters had previously raised the issue of the Carroll heirs
being an indispensable party before the trial court, fixated on this seemingly
settled issue, determined that the trial court had erred in reaching this
conclusion even though the parties purportedly had not raised or argued that
decision on appeal in any kind of detail, and then issued a brief, inexplicit per
curiam order vacating and remanding the case to the trial court with
instructions to dismiss the quiet title action for failure to join indispensable
parties.
More troubling, however, CPCC supports its argument that our Supreme
Court’s finding could have been “based upon the numerous times in the
Reproduced Record that the Carters raised the issue of the Carroll heirs being
a purported indispensable party[,]” with the following illustration:
For example, the Carters asserted the Carroll [h]eirs are an
indispensable party when the Carters filed their brief in
opposition to CPCC’s [p]etition for [a]llowance of [a]ppeal
with the Supreme Court. Specifically, the Carters alleged,
“[t]he Carters filed Preliminary Objections alleging[,] inter alia[,]
that parties associated with the 1840 deed were indispensable
parties and needed to be joined because the 1840 deed
necessarily had to be interpreted.”
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CPCC’s Reply Brief at 10-11, 11 n.3 (emphasis and some brackets added;
citation omitted). CPCC fails to acknowledge that the Carters made this
assertion to respond to the statements made by CPCC in its petition.
See Carters’ Brief in Opposition to CPCC’s Petition for Allowance of Appeal,
1/8/2009, at 1 (“[CPCC’s] [p]etition for [a]llowance of [a]ppeal is devoid of
any reference to the record showing when or where it argued that only
someone other than the Carters could own the [q]uiet [t]itle [t]ract.”); id. at
7-10 (asserting that CPCC “waived, and should be estopped from asserting,
its argument that the Superior Court could not direct a judgment in favor of
the Carters”) (unnecessary capitalization and emphasis omitted). In other
words, the Carters did not make the above-stated reference to its preliminary
objections indiscriminately and without prompting; such discussion came
because of CPCC’s petition.11 Accordingly, we are not persuaded by CPCC’s
arguments, and discern that the trial court properly denied its request for
JNOV due to insufficient evidence of causation.
In its third issue, CPCC argues — in the alternative — that it is “entitled
to a new trial because the trial court erred by failing to include a jury
interrogatory on causation as a necessary element to a breach of contract
action.” CPCC’s Brief at 35 (unnecessary emphasis and capitalization
omitted). Specifically, the interrogatory at issue asked, “[D]o you find that
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11 We reiterate that the Carters had not raised the issue of the Carroll heirs
being indispensable parties when their appeal was before this Court. See
footnote 7, supra.
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[CPCC’s] breach of the [s]ettlement [a]greement caused the Pennsylvania
Supreme Court to rule as it did?” See id. at 38 (citing Interrogatories to the
Jury, 12/8/2016, at 2). According to CPCC, “the jury was permitted to find
CPCC liable for $1,000,000.00 in damages by only determining the question
of whether CPCC breached the [s]ettlement [a]greement and not whether the
purported breach caused the Carters’ damages.” Id. at 40. CPCC maintains
that “[g]iven the three possible explanations entered into evidence for why
the Supreme Court ruled as it did, it was error for the trial court to permit the
jury to award damages without making a finding relative to causation.”
CPCC’s Reply Brief at 16.
This Court has explained:
We will reverse a trial court’s decision to deny a motion for a new
trial only if the trial court abused its discretion. 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. An abuse of
discretion exists when the trial court has rendered a judgment
that is manifestly unreasonable, arbitrary, or capricious, has failed
to apply the law, or was motivated by partiality, prejudice, bias,
or ill will.
Underwood, 954 A.2d at 1206 (citations omitted). We also acknowledge
that, “[g]enerally, a trial judge … may grant or refuse a request for special
findings on the basis of whether such would add to the logical and reasonable
understanding of the issue. We will not disturb a trial judge’s decision to grant
or refuse the request absent an abuse of discretion.” Fisch’s Parking, Inc.
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v. Independence Hall Parking, Inc., 638 A.2d 217, 223 (Pa. Super. 1994)
(citations omitted).
Here, the trial court explained that “[t]he jury was instructed that
damage must result from a breach, and [includes] only those damages that
were reasonably foreseeable from the breach.” TCM at 5-6. Thus, it
concluded that “[w]hether or not a specific interrogatory was propounded to
the jury on that part, the record shows that the jury was adequately
instructed.” Id. at 6. Interestingly, CPCC concedes that the trial court
effectively charged the jury. Specifically, it states that “while [the trial court]
adequately explained the concept of causation when [it] charged the jury such
that the jury should have understood the need to find a causal connection
between CPCC’s purported breach and the Carters’ ‘resultant damages,’
nonetheless, the jury was not asked to make such a finding on the verdict
slip.” CPCC’s Reply Brief at 16. It is well-established that “[t]he law presumes
that the jury will follow the instructions of the court.” Maya v. Johnson and
Johnson, 97 A.3d 1203, 1222 (Pa. Super. 2014) (citations and quotation
marks omitted). Thus, we discern no abuse of discretion and decline to
remand this matter for a new trial. CPCC is not entitled to relief.
We turn now to the following issues raised by the Carters on appeal,
which we have also reordered for ease of disposition:
1. Did the trial court commit an abuse of discretion by granting
the coal company’s [m]otion for [p]artial summary
judgment to dismiss the Carters’ punitive damages claim?
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2. Did the trial court commit an abuse of discretion by failing
to award the Carters pre-judgment interest at the legal rate
of six (6%) percent from the date of the contract’s breach?
Carters’ Brief at 4.
In their first issue, the Carters argue that the trial court abused its
discretion by granting CPCC’s motion for partial summary judgment on their
claim for punitive damages. See Carters’ Brief at 17. The Carters argue that
the trial court should not have granted CPCC’s motion for partial summary
judgment as to punitive damages for two main reasons. First, they claim that
— at the time the trial court granted partial summary judgment as to punitive
damages — their fraud claim remained and “[p]unitive damages are always
available under a fraud claim.” Id.12 Second, they contend that “the ruling
was error because the evidence presented in the Carters’ [r]esponse to the
[m]otion for [p]artial [s]ummary [j]udgment was sufficient to allow a jury to
award punitive damages.” Id. We deem this issue moot.
At trial, CPCC moved for a nonsuit on the Carters’ fraud claim, which the
trial court granted. See N.T. Trial, 12/7/2016, at 22. The Carters’ fraud claim
“involved not only fraud in the inducement, given the fact that CPCC failed to
disclose to the Carters facts which were important to them in entering into the
[s]ettlement [a]greement, but also fraud in the execution, since CPCC
fraudulently violated the contractually agreed-upon terms by emphasizing the
____________________________________________
12 In contrast, both parties acknowledge that punitive damages are not
available in breach of contract actions. Carters’ Reply Brief at 31
(acknowledging that “an award of punitive damages is limited to tort
actions”); CPCC’s Brief at 44 (observing that “punitive damages cannot be
awarded for breach of contract”).
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indispensability of the Carroll heirs before the Pennsylvania Supreme Court.”
See Carters’ Response to Motion for Partial Summary Judgment, 2/5/2015, at
4; see also N.T. Trial, 12/7/2016, at 13 (“With respect to the fraud, it’s
correct, we are pursuing a fraud in the [] execution claim, in addition to an
inducement claim. But it’s both execution and inducement.”). 13 The Carters
claim that the jury “may have awarded punitive damages based on the fraud
claim due to the improper and misleading activities of CPCC’s agents in
manipulating the Carroll heir issue had the trial court not entered partial
summary judgment on that issue.” Carters’ Brief at 20-21 (footnote omitted).
Problematically though, their fraud claim was dismissed at the close of their
case in chief. As CPCC discerns, “[a]fter the trial court granted CPCC’s
[m]otion for [n]onsuit of the Carters’ fraud claim, the Carters’ sole remaining
cause of action was for breach of contract. Beyond doubt, punitive damages
are awarded in tort actions, not for breach of contract.” CPCC’s Brief at 43
(citations and internal quotation marks omitted).
At the outset, we note that the Carters did not raise whether the trial
court erred in granting the nonsuit on their fraud claim in their Rule 1925(b)
statement. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
____________________________________________
13Our Supreme Court has described fraud in the execution as occurring where
“a term was fraudulently omitted from the contract,” and fraud in the
inducement of a contract as taking place where “an opposing party made false
representations that induced the complaining party to agree to the contract.”
Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 205 (Pa. 2007) (citations
omitted).
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Statement and/or not raised in accordance with the provisions of this
paragraph (b)(4) are waived.”).14 Nevertheless, even if properly preserved in
their Rule 1925(b) statement, the Carters would not convince us that the trial
court erred. In moving for the trial court to dismiss the Carters’ fraud claim,
CPCC made the following arguments as to why it fails:
I think if you look at their amended complaint, and specifically, in
Paragraphs 29 through 35, which is the fraud count, they are
pleading, attempting to plead a case of fraud in the inducement.
It clearly states in Paragraph 35, “As a result of being fraudulently
induced to enter the settlement agreement, the Carters have
suffered monetary damage together with the loss of use of the
money and loss of interest.[”]
Judge, you ruled from the outset that parol evidence was not
going to be violated, and there would not be any testimony
pertaining to any discussions or what had happened pre[-
]execution of the damage settlement agreement dated September
22, 2006. You upheld our objection when the [Carters] attempted
to introduce some extrinsic evidence.
As such, Judge, the [Carters] were unable to offer any evidence
of any testimony, any conversations, anything, of a prior
fraudulent misrepresentation, which is one of the key elements of
fraud in the inducement. They also were not able to offer any
evidence that there was a justifiable reliance on any prior
fraudulent misrepresentation. Because again, you excluded any
____________________________________________
14 We disagree with the Carters that they preserved the issue of whether the
trial court properly granted the nonsuit on fraud because “any reference to
the denial of the right to pursue punitive damages necessarily included the
fraud claim.” Carters’ Reply Brief at 31; see also Carters’ Rule 1925(b)
Statement, 9/6/2017, at ¶ 2 (“The [t]rial [c]ourt erred by granting summary
judgment on the Carters’ claims for punitive damages. The evidence showed
that a dispute of material fact existed as to whether CPCC deliberately
manipulated the joinder of the Carroll [h]eirs in the quiet title action and then
knowingly, in violation of the [s]ettlement [a]greement, used that issue before
the Pennsylvania Supreme Court in its [p]etition for [a]llowance of [a]ppeal
to procure a dismissal of the case.”).
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testimony that predated the settlement agreement because of the
parol evidence rule.
Without that testimony, and also, because of the fact that there’s
an integration clause negotiated by both parties, signed off by
both parties, a fraud in the inducement claim cannot proceed. It’s
not a viable cause of action, unless you have those first two
elements of fraud in the inducement. We don’t have them here.
So it’s our position, Judge, that their claim for fraud in the
inducement must be dismissed as a matter of law. Because
there’s no testimony of a fraudulent representation, nor is there
any testimony of a reliance upon any prior misrepresentation. The
case law is very clear. It’s in our trial brief that if there’s an
integration clause that a claim for fraud in the inducement cannot
stand.
Now, I heard something yesterday that surprised me that
suggested that they pled a claim for fraud in the execution. Which
I think a fair reading of Paragraphs 29 through 35, there is no
suggestion of fraud in the execution in this case. It’s not pled in
the amended complaint.
Let’s assume for a moment that somehow you infer that, because
there’s a lot of inferences being raised here that there’s a fraud in
execution claim. They must plead in this case, and then go on to
prove, that there was some sort of mistake in the terms of the
agreement. They must be able to offer testimony that the written
document, this settlement agreement, is not the expression or the
intent of the parties. Something was omitted.
And that is the key part of this, Judge, if they’re going to try to
suggest that there’s a fraud in the execution claim, they have to
suggest an[d] offer testimony that something was omitted from
the settlement agreement. Here, it’s actually to the contrary.
There is no allegation that anything was omitted from the
settlement agreement. Their argument is that it’s clear. We can’t
add another party; and … the presentation before Judge Emery is
complete; and their interpretation of that is that you can’t make
any legal argument different than what you may have made at
the lower court level. So here, Judge, they can’t have a fraud in
the execution claim, because they never claimed that something
was omitted from the settlement agreement.
Probably, more importantly that would be very detrimental to the
case, let’s assume for a moment that they pled it, you believed
that there was something there, and that the jury found fraud in
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the execution. The only remedy for that is that the contract is
void. If the contract is void, there’s nothing to talk about, there’s
no damage. So it’s our position, Judge, that on the fraud claim,
it should be dismissed.
They didn’t -- there can’t be a fraud in the inducement because of
the integration clause. And they didn’t plead even a fair reading
of that complaint[,] didn’t plead fraud in the execution, and it
wouldn’t stand anyway, because there’s never been an argument
that any material fact that would be in the settlement agreement
was omitted. So on the fraud claim, we argue and request that
this [c]ourt dismiss the fraud claim against [CPCC], because they
have not met their burden.
See N.T. Trial, 12/7/2016, at 4-8.
The Carters do not adequately address or proffer authority to rebut
these alleged problems with their fraud claim, which the trial court must have
determined had some degree of merit as it immediately granted CPCC’s
motion for nonsuit.15 It is well-established that we “will not become counsel
for an appellant and develop arguments on an appellant’s behalf.”
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)
(citation omitted). As the Carters failed to establish fraud at trial and did not
preserve this issue or adequately develop it on appeal, we determine that
whether the trial court abused its discretion in granting summary judgment in
favor of CPCC as to punitive damages is moot.
____________________________________________
15 It remains somewhat unclear as to why the trial court granted the nonsuit
for fraud. See N.T., 12/7/2016, at 22-23 (providing no reason for why CPCC’s
motion for nonsuit on the fraud count was granted). The trial court did not
provide an explanation for why it decided to grant the nonsuit in its July 21,
2017 memorandum or Rule 1925(a) opinion, likely because the Carters did
not challenge the entry of the nonsuit in post-trial motions or in their Rule
1925(b) statement.
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Notwithstanding, in an attempt to skirt the dismissal of their fraud claim
at trial, the Carters take a new approach, purporting that they were limited in
their ability to prove fraud at trial due to the trial court’s earlier granting of a
motion in limine prohibiting the Carters from introducing evidence pertaining
to the Carroll family cemetery and a related quit-claim deed.16, 17 On the last
page of their principal brief, the Carters vaguely and offhandedly remark that
the trial court’s “decision [to grant summary judgment on punitive damages]
was essentially the grant of a [m]otion in [l]imine preventing the Carters from
introducing to the jury evidence of CPCC’s negotiations with the Carroll heirs
concerning the cemetery association.” Carters’ Brief at 22-23. They begin
expanding on this theory in the first page of their reply brief, averring that
“[t]he reality is that the trial court’s grant of CPCC’s motion in limine
____________________________________________
16 The Carters do not indicate — nor could we find — where in the voluminous
record the trial court granted this motion in limine. See Pa.R.A.P. 2119(c)
(“If reference is made to the pleadings, evidence, charge, opinion or order, or
any other matter appearing in the record, the argument must set forth, in
immediate connection therewith, or in a footnote thereto, a reference to the
place in the record where the matter referred to appears[.]”) (citation
omitted). Thus, we are unsure why the trial court granted it.
17 For context, the Carters contend that CPCC “sought to form a cemetery
association to aid the Carroll [h]eirs in preserving a family burial ground,
which settlement included CPCC[’s] obtaining a quit-claim deed from the
Carroll [h]eirs for the coal….” See Carters’ Reply Brief at 32-33. The Carters
say they “would have argued to the jury that the refusal to join the Carroll
[h]eirs … was intertwined with a deliberate CPCC plan to surreptitiously obtain
from the Carroll [h]eirs a quit-claim deed for the cemetery tract which had the
effect of terminating any license Carroll may have retained in 1840 to access
the [tract.]” Id. at 33. CPCC, however, claims that “the quiet title tract is
not the same property as the one for which CPCC negotiated an agreement
with the Carroll heirs.” CPCC’s Brief at 53 (emphasis omitted).
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prohibiting the Carters from presenting evidence of CPCC’s actions with
respect to the formation of a cemetery association for the Carroll [h]eirs made
it impossible for the Carters to prove the fraud which would justify an award
of punitive damages.” Carters’ Reply Brief at 30. By the close of their reply
brief, the Carters conclude that “it was error for the [t]rial [c]ourt to grant the
various [m]otions, including the punitive damage summary judgment motion,
preventing the Carters from presenting evidence at trial which would justify a
claim for fraud and consequently, punitive damages.” Id. at 35.
Initially, we note that this argument is different from the issue presented
in the Carters’ Rule 1925(b) statement, their statement of the questions
involved, and the argument section of their principal brief. Whether the trial
court erred in refusing to allow evidence to support the Carters’ fraud claim is
a separate issue from whether the trial court abused its discretion in granting
summary judgment in favor of CPCC on punitive damages.18 If the evidence
of the Carroll family cemetery and associated quit-claim deed were relevant
to proving the Carters’ fraud claim, as the Carters allege, the trial court’s
granting of summary judgment as to punitive damages would not have
necessarily precluded such evidence from being admitted. As such, this issue
is waived. See Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the
Statement and/or not raised in accordance with the provisions of this
____________________________________________
18 Further, the Carters do not articulate how the issue concerning the motion
in limine is somehow subsidiary to the issue of punitive damages. See
Samuel, 102 A.3d at 1005 (stating that this Court “will not become counsel
for an appellant and develop arguments on an appellant’s behalf”).
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paragraph (b)(4) are waived.”); Pa.R.A.P. 2116(a) (“No question will be
considered unless it is stated in the statement of questions involved or is fairly
suggested thereby.”); Commonwealth v. Basemore, 744 A.2d 717, 726-27
(Pa. 2000) (“A reply brief … is an inappropriate means for presenting a new
and substantively different issue than that addressed in the original brief.”).
Nonetheless, even if not waived, the Carters do not specifically explain how
this additional evidence would remedy the flaws with their fraud claim that
CPCC successfully identified to the trial court at the time of the nonsuit.
Accordingly, no relief is due.
In their second issue, the Carters advance that “the verdict should be
molded to include pre-judgment interest.” Carters’ Brief at 10 (emphasis and
unnecessary capitalization omitted). They argue that “[p]re-judgment
interest should be awarded as a matter of right if a party breached a contract
to pay a definite sum of money stated in the contract.” Id. at 9. According
to the Carters, “[t]he jury found that CPCC breached the contract on the date
it filed its [p]etition for [a]llowance to [a]ppeal with the Pennsylvania Supreme
Court[,]” and “[t]he contingent payment of $1,000,000.00 was the sum due
under the contract.” Id. The Carters state that CPCC “has had the benefit of
the interest on the $1,000,000.00 for a period of nearly eight (8) years[,]”
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and argue that CPCC should not be permitted to benefit from its breach. Id.
at 15-16.19
Before delving into this issue, we acknowledge that “[o]ur review of an
award of pre-judgment interest is for abuse of discretion.” Cresci Const.
Services, Inc. v. Martin, 64 A.3d 254, 258 (Pa. Super. 2013) (citation
omitted). However, “a court has discretion to award or not award pre[-
]judgment interest on some claims, but must or must not award pre[-
]judgment interest on others.” Id. (citations, internal quotations marks, and
original brackets omitted).
In more detail, our Supreme Court has explained,
even where a party’s right to the payment of interest is not
specifically addressed by the terms of a contract, a nonbreaching
party to a contract may recover, as damages, interest on the
amount due under the contract; again, this Court refers to such
interest as pre[-]judgment interest. The purpose of awarding
interest as damages:
is to compensate an aggrieved party for detention of money
rightfully due him or her, and to afford him or her full
indemnification or compensation for the wrongful
interference with his or her property rights. The allowance
of interest as an element of damages is not punitive, but is
based on the general assumption that retention of the
money benefits the debtor and injures the creditor.
Many jurisdictions have enacted statutory provisions for interest
as damages. In 1988, in Fernandez [v. Levin, 548 A.2d 1191
____________________________________________
19The Carters note that “[u]nder the [s]ettlement [a]greement, payment of
the contingent $1,000,000.00 was due thirty days from the final decision on
ownership.” Carters’ Brief at 14 n.2 (citations omitted). They claim that the
date of the breach was the filing of the petition on December 24, 2008, and
therefore the obligation to pay interest began on January 23, 2009. Id. CPCC
does not contest this specific date, but instead argues that the Carters should
receive no pre-judgment interest at all. See infra.
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(Pa. 1988),] this Court adopted Section 354 of the Restatement
(Second) of Contracts as the law of this Commonwealth with
respect to the recovery of interest as damages in breach of
contract actions. Section 354, titled “Interest As Damages,”
provides:
(1) If the breach consists of a failure to pay a definite sum
in money or to render a performance with fixed or
ascertainable monetary value, interest is recoverable from
the time for performance on the amount due less all
deductions to which the party in breach is entitled.
(2) In any other case, such interest may be allowed as
justice requires on the amount that would have been just
compensation had it been paid when performance was due.
Restatement (Second) of Contracts § 354. In adopting Section
354, we stated:
For over a century it has been the law of this Commonwealth
that the right to interest upon money owing upon contract
is a legal right. That right to interest begins at the time
payment is withheld after it has been the duty of the debtor
to make such payment.
With regard to pre[-]judgment interest, we have explained,
interest has been defined to be a compensation allowed to the
creditor for delay of payment by the debtor, and is said to be
impliedly due whenever a liquidated sum of money is unjustly
withheld. However, as prerequisites to running of pre[-]judgment
interest, the debt must have been liquidated with some degree of
certainty and the duty to pay it must have become fixed. Thus,
even where the terms of a contract do not expressly provide for
the payment of interest, a nonbreaching party has a legal right to
recover interest, as damages, on a definite sum owed under the
contract.
Furthermore, as is the case with an award of contractual interest,
an award of pre[-]judgment interest under Section 354(1) is not
subject to a court’s discretion.
TruServ Corp. v. Morgan’s Tool & Supply Co., Inc., 39 A.3d 253, 263-64
(Pa. 2012) (internal footnotes, quotation marks, original brackets, and some
citations omitted). Additionally, in claims arising out of a contractual right,
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“[i]nterest must be awarded notwithstanding the good faith of the party
contesting the claim.” Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 590
(Pa. Super. 2003) (citation omitted).
In denying the Carters’ request for pre-judgment interest, the trial court
reasoned that “the bonus payment of $1,000,000.00 was due to the Carters
‘if and only if the final decision on ownership of either the coal or the support
estate … is in favor of the Carters[.’] That event has still not happened.” TCM
at 8. In other words, the trial court determined that “interest is not due on
the terms of the contract, because the bonus was to be only payable when
certain things happened, but they did not and have not.” Id. Moreover, it
noted that “[b]ecause [CPCC] never agreed that it breached the contract, its
duty to pay did not arise until the jury rendered its verdict.” Id.
Similarly, CPCC asserts that “[t]he final decision as to ownership in
this case was not in the Carters’ favor. … CPCC could not have unjustly
withheld damages from the Carters when CPCC’s obligation to make the
$1,000,000.00 bonus payment never arose.” CPCC’s Brief at 63 (emphasis in
original). It further advances that “CPCC did not believe that it breached the
[s]ettlement [a]greement when it filed its [p]etition for [a]llowance of
[a]ppeal…. CPCC should not be held liable for pre[-]judgment interest where
CPCC could not have known it breached the [s]ettlement [a]greement nor
could CPCC have known it was unjustly withholding damages from the
Carters.” Id. at 64-65.
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We disagree with the reasoning of the trial court and CPCC, and conclude
that the Carters should receive pre-judgment interest. First, although the
Supreme Court did not issue a final decision on ownership, it did not address
that question because of the improper arguments made by CPCC. As the
Carters observed, CPCC “filed a [p]etition for [a]llowance of [a]ppeal
containing arguments which the jury said breached the [s]ettlement
[a]greement and rendered the Carters’ potential of receiving the bonus
payment impossible….” Carters’ Reply Brief at 29; see also Carters’ Brief at
16 (“Rather than adhering to the terms of the contract and seeking a final
decision on the merits of ownership, CPCC filed a [p]etition which indubitably
sought relief in the form of a dismissal for failure to join indispensable
parties.”). In addition, we reiterate that this Court made the last decision on
the merits of ownership in favor of the Carters. See Consol Pennsylvania
Coal Co., 960 A.2d at 133 (reversing the judgment entered in favor of CPCC
and remanding with directions for entry of judgment in favor of the Carters).
Second, whether CPCC believed it breached the settlement agreement is
irrelevant, as “[i]nterest must be awarded notwithstanding the good faith of
the party contesting the claim.” See Pittsburgh Const. Co., supra. The
Carters persuasively discern that “if the subjective position of the breaching
party was the dispositive factor, an award of pre-judgment interest would
likely never occur.” Carters’ Brief at 15 (footnote omitted). Accordingly, we
reverse the part of the trial court’s order denying pre-judgment interest to the
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Carters, and remand solely for the trial court to award pre-judgment interest
on the $1,000,000.00 from 30 days after the breach, i.e., January 23, 2009.
In sum, the trial court did not err in denying CPCC’s request for JNOV
due to insufficient evidence of breach and causation, nor did it err by not
including a jury interrogatory on causation. With respect to the Carters, no
relief is due regarding their punitive damages claim; however, they should
receive pre-judgment interest on the $1,000,000.00 from January 23, 2009.
Order affirmed in part, and reversed in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/8/2018
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