Education Resources Institute, Inc. v. Cole

827 A.2d 493, 2003 Pa. Super. 225, 2003 Pa. Super. LEXIS 1757

• Court: Superior Court of Pennsylvania
• Decided: June 13, 2003
• Status: Published

Opinions

MONTEMURO, J.

¶ 1 This is an appeal from a judgment for $85,000¹ entered in favor of Appellee after a three day jury trial in a contract action. The judgment represents principal plus interest on a series of loans for which Appellee acted as guarantor. Appellant, now a practicing lawyer, borrowed the money to cover the costs of law school and the bar examination.

¶2 On appeal, this Court is presented with nine issues in support of Appellant’s request that we reverse the trial court’s denial of his motion to enter a judgment notwithstanding the verdict, or, alternatively, that we grant him a new trial. After careful consideration, we decline to do either.

¶3 Preliminarily we note that “[t]he entry of a judgment notwithstanding the verdict ... is a drastic remedy. A court cannot lightly ignore the findings of a duly selected jury.” Neal by Neal v. Lu, 365 Pa.Super. 464, 530 A.2d 103, 110 (1987) (citations omitted).

[T]he evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further, a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations.

Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003, 1007 (1992) (citations omitted).

¶ 4 Appellant first argues that the trial court erred in dismissing his preliminary objections as that ruling violated the coordinate jurisdiction rule, which directs that “judges of coordinate jurisdiction sitting in the same case should not overrule each other’s decisions.” Riccio v. American Republic Ins. Co., 550 Pa. 254, 705 A.2d 422, 425 (1997) (citation omitted). In making a determination as to whether the rule applies, the appellate court “looks to where the rulings occurred in the context of the procedural posture of the case.” Id.

¶ 5 Appellant raised preliminary objections on five subjects, among which was the question of proper service. An Order entered June 15, 2000, by the first judge assigned to this case addressed only the matter of service, directing that discovery be taken on the question of whether the person who had accepted service was authorized to do so. Decision on all other issues was specifically deferred, and no further ruling was made on Appellant’s preliminary objections until the second (trial) judge dismissed them immediately prior to trial on March 11, 2002. Thus the coordinate jurisdiction rule is not implicated much less violated, and Appellant’s claim on this issue is without merit.

¶ 6 Next, it is argued that Appellee failed to serve original process upon Appellant, and because there was an eight month delay before reinstatement of the complaint, no proper service could (ever) be made. Appellant raised this claim in his preliminary objections based on service which was, initially, defective. However, the certified record reveals that the complaint was reinstated on October 31, 2000, and that Appellant was personally served on November 2, 2000, a matter he admitted at trial. (N.T., 3/11/02, at 158). Moreover, Appellant offers no authority for or reasoning to support the proposition he advances that a delay before reinstatement of a complaint constitutes bad faith, or that the complaint, once reinstated, becomes unservable. Indeed, he cannot do so, as Pa.R.C.P. 401(2) and (4) provide that a complaint may be reinstated “at any time and any number of times”; and once reinstated is to be served within the applicable time frame. There is no contention that service of the reinstated complaint was in any way problematic. Accordingly, for this reason, too, the claim concerning service is waived.²

¶ 7 Appellant’s next contention is that the trial court erred in denying his motion for compulsory nonsuit. Specifically, Appellant argues that pursuant to the Foreign Business Corporations Act, 15 Pa. C.S.A. § 4101 et seq., Appellee was required to obtain a certificate of authority from the Pennsylvania Department of State before conducting business in the Commonwealth, and failed to do so. Section 4101 provides that

[e]xcept as otherwise provided in this section or in subsequent provisions of this article, this article shall apply to and the words “corporation” or “foreign business corporation” in this article shall include every foreign corporation for profit, including a corporation that, if a domestic corporation for profit, would be a banking institution, credit union or savings association.

Id. (emphasis added).

¶ 8 As Appellee is a nonprofit corporation, the necessity for a certification under this statutory section does not arise.

¶ 9 Rather, the Foreign Nonprofit Corporation Act, 15 Pa.C.SA. § 6101, et seq., which contains similar provisions, governs here. However, Section 6122 provides in pertinent part:

a foreign nonprofit corporation shall not be considered to be doing business in this Commonwealth ... by reason of carrying on in this Commonwealth any one or more of the following acts:

(1) Maintaining or defending any action or administration or arbitration or effecting the settlement thereof or the settlement of claims or disputes.

(8) Securing or collecting debts or enforcing any rights in property securing them.

As our Supreme Court has pointed out, “the test for whether a corporation is ‘doing business’ in this Commonwealth is a question of fact, to be resolved on a case-by-case basis.” American Hous. Trust, III v. Jones, 548 Pa. 311, 696 A.2d 1181, 1184 (1997). Here, evidence was received that Appellee’s sole activity in Pennsylvania was to sue borrowers who failed to repay their loans, that is, to collect debts. Appellant at no time produced any evidence in contradiction of this information. The trial court found that Appellee’s activities were excluded under the subsections of the Act quoted above, obviating the necessity for a certificate. We see no reason to disagree.

¶ 10 Moreover, as the trial court observed, the promissory notes signed by Appellant contain a choice of laws provision that designated Ohio’s statutes as controlling. This Court has held that “[c]hoice of law provisions in contracts will generally be given effect.” Smith v. Commonwealth Nat’l Bank, 384 Pa.Super. 65, 557 A.2d 775, 777 (1989). Appellant 'has offered nothing to the effect that Ohio requires foreign nonprofit corporations to procure certification of authority in order to file suit in Pennsylvania.

¶ 11 Appellant next argues that the trial court erred in denying his motions in limine seeking to exclude certain witnesses and any evidence they might offer. This and Appellant’s succeeding three issues, all four of which seek relief for the alleged error in the exclusion or reception of evidence, are therefore properly the subject of a motion for new trial. Stewart v. Chernicky, 439 Pa. 43, 266 A.2d 259, 265-66 (1970). We note that an appellate court will not reverse the trial court’s grant or denial of new trial unless its decision presents a gross abuse of discretion or an error of law. Harman v. Borah, 562 Pa. 455, 756 A.2d 1116, 1122 (2000). “An abuse of discretion exists when the trial court has rendered a judgment that is manifestly unreasonable, arbitrary or capricious, or was motivated by partiality, prejudice, bias or ill will.” Id. at 1123. The trial court is required to grant a new trial only where a jury verdict is “against the clear weight of the evidence or [where] the judicial process has effected a serious injustice.” Austin v. Ridge, 435 Pa. 1, 255 A.2d 123, 124 (1969) (citing Pritchard v. Malatesta, 421 Pa. 11, 218 A2d 753, 754 (1966)).

A motion in limine is a procedure for obtaining a ruling on the admissibility of evidence prior to or during trial, but before the evidence has been offered. When reviewing rulings on motions in limine, we apply the scope of review appropriate to the particular evidentiary matter. The admissibility of evidence is a matter addressed to the sound discretion of the trial court and should not be overturned absent an abuse of discretion.

Delpopolo v. Nemetz, 710 A.2d 92, 94 (Pa.Super.1998) (citations and internal quotation marks omitted).

¶ 12 Appellant does not address the substance of the motions in limine. Rather, he argues that the trial court’s denial of his motions was an abuse of discretion because it was done “out of hand,” that is, without giving reasons. (Appellant’s Brief at 20). Oddly, Appellant seems to imply error from the fact that the court delivered its ruling without actually holding the document at the time the decision was made. See Id. (“The trial judge did not have the motion in hand when she made the ruling.”) As Appellant presents no authority for and no argument in support of these conclusions, we need not address them. Estate of Lakatosh, 441 Pa.Super. 133, 656 A.2d 1378, 1381 (1995); Pa.R.App.P. 2119(a). We would, however, remark on Appellant’s astonishing contention that he “should have been afforded the opportunity to address the shortcomings in plaintiffs Complaint though its [sic] motions in limine.” (Appellant’s Brief at 20). We refer Appellant to the Rules of Civil Procedure for the appropriate measures to accomplish his purpose.³

¶ 13 Next Appellant argues that “several errors of law were committed concerning [Appellee’s] evidence in violation of [a] pre-trial order.” (Id.). The order in question instructed the parties that only exhibits listed in the pretrial memorandum could be offered in evidence or used for anything other than impeachment purposes, “except for good cause shown.” (Order, dated 12/13/01). Appellant points to four instances in which Appellee was permitted to use such exhibits, and insists that permission was given in the absence of good cause to do so.

• ¶ 14 As we have already noted, the question of whether certain evidence should be admitted is a matter within the sound discretion of the trial court whose decisions we will not disturb absent an abuse of that discretion. Delpopolo, supra. A review of the alleged errors committed by the trial court in declining to enforce its own order reveals that, in fact, no error occurred. One of the documents in question was hot available until after the exhibit list had already been submitted; another was presented in response to an unanticipated defense; and two were limited to use in refreshing a witness’ recollection. We find no error in the court’s determinations.

¶ 15 Next Appellant directs us to six further instances of trial court error in deciding certain questions raised both pri- or to and during trial. As none of the arguments advanced are supported by legal authority, they are waived. Lakatosh, supra; Pa.R.A.P. 2119(a). Had they been properly preserved, we would find them meritless.

¶ 16 Appellant also contends that the evidence was insufficient to support the verdict. Specifically, he argues that he was never identified as a party to any of the contracts forming the basis for suit, and was never questioned as to whether he had, in fact, signed the notes.

¶ 17 Where the fact finder, viewing all the evidence in a light most favorable to the plaintiff, could not reasonably find that the elements of the cause of action have been established, a judgment of compulsory nonsuit is appropriate. Only if the facts are so clear that reasonable persons could not disagree as to their evidentiary significance should the fact finder take the case from the jury. Long v. Manzo, 452 Pa.Super. 451, 682 A.2d 370, 373, (1996), appeal denied, 548 Pa. 628, 693 A.2d 967 (1997).

¶ 18 Appellant did, in fact, move for compulsory nonsuit following the close of Appellee’s case. He did so, however, on grounds other than those which form the basis for this claim of insufficiency which appears for the first time in his Motion for Post Trial Relief.⁴ Pa.R.C.P. 227.1(b)(1) provides that

(b) Post trial relief may not be granted unless the grounds therefor,

(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial.

¶ 19 Given the nature of the contention, grounds for such an objection had been available since the inception of the case. Accordingly, this issue is waived. Had it not been waived, we would find, as did the trial court, that Appellant admitted having borrowed the money, and indeed, that he might even have applied for forbearance on the loans. Under such circumstances to argue, as Appellant has done, that lack of authentication defeats Appellee’s claim against him is disingenuous at best.

¶ 20 Appellant’s last two issues concern the amount of the judgment awarded Ap-pellee by the jury. We note that the award breaks down as follows: $49,156.26 in principal (guaranty amounts paid); $13,480.63 interest; and $22,363.11 attorneys’ fees.

¶ 21 First, Appellant claims that Appellee was awarded double the interest which had actually accrued on the loan. Since, as Appellee points out, Appellant uses an inaccurate starting point to calculate the amount due, his assertion is itself incorrect. Moreover, “[t]he decision to grant, or not to grant, a new trial based on the excessiveness of a jury verdict is within the sound discretion of the trial court, and its decision will be upheld on appeal absent a gross abuse of discretion.” Tesauro v. Perrige, 437 Pa.Super. 620, 650 A.2d 1079, 1081 (1994), appeal denied, 541 Pa. 627, 661 A.2d 874 (1995). “We are not free to substitute our judgment for that of the trial judge or jury.” Id. Here the interest amount is consistent with the evidence adduced at trial, and therefore represents no instance of error.

¶ 22 Finally, Appellant argues that the award of attorney’s fees was improper because Appellee failed to produce any evidence of fees actually paid; the trial court is thus prevented from instructing the jury as to what award would be reasonable.

¶ 23 Evidence was introduced at trial on direct examination of one of Appel-lee’s witnesses that the notes signed by Appellant contain language alluding to the payee’s responsibility for reasonable attorneys’ fees upon default. The witness testified that the amount of these fees is usually for the court to determine. On cross examination, Appellant made no inquiry at all on the subject of attorneys’ fees; he requested no jury instruction on that point, and made no objection to the court’s charge on the issue. He may not now complain that the amount was wrong. This Court has long held that “[a] party cannot be permitted to question facts expressly admitted or deliberately waived at trial.” Schmidt v. Martz, 161 Pa.Super. 439, 55 A.2d 588, 589 (1947).

¶24 Before affirming the judgment in this case, this Court would take notice of yet another well settled principle, that “when an appellant raises an extraordinary number of issues on appeal, as in this case, a presumption arises that there is no merit to them.” Lakatosh, supra, at 1380 n. 1 (citations omitted). The caliber of appellate advocacy is measured by effectiveness, not loquacity. United States v. Hart, 693 F.2d 286, 287 n. 1 (3rd Cir.1982). Here, including the subissues, Appellant has presented 18 meritless claims, all in aid of a position which can most charitably be described as untenable. Such conduct ill befits an officer of the court.

¶ 25 Judgment affirmed.

¶ 26 KLEIN, J. files a dissenting opinion.

1 . Appellant's Notice of Appeal, filed August 19, 2002, purports to appeal from the Order of July 23, 2002. This Order, which is dated July 19, but filed on July 23, is not final as it merely denies Appellant’s post trial motion. Judgment was not entered until August 26, 2002. Pa.R.A.P. 905(a) permits us to address this appeal as though it had been properly filed. ("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 day thereof.”)

2 . We note that even had there been a defect in service, this Court has long held the view that where a defendant appears and defends on the merits, claims of defective service are waived. Webb v. United Servs. Auto. Ass’n., 227 Pa.Super. 508, 323 A.2d 737, 738 (1974).

Contrary to the Dissent’s assumption that defective service is conceded, ultimately proper service was effected of the reinstated complaint. (Appellant’s Brief at 13). Appellant’s preliminary objections are germane only to service prior to the reinstatement. Thereafter, Appellant’s claims of improper service became moot.

3 . In addition to filing preliminary objections, Appellant moved unsuccessfully for summary judgment.

4 . Appellant's Preliminary Objections only included the assertion that Appellee was not identified as a party to the action.