J-A20011-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
J.R. ENTERPRISES LLC : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : HARTMAN SNACK GROUP INC : No. 75 MDA 2023
Appeal from the Judgment Entered February 17, 2023 In the Court of Common Pleas of Franklin County Civil Division at No(s): 2017-00460
BEFORE: PANELLA, P.J., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, P.J.: FILED: DECEMBER 5, 2023
J.R. Enterprises LLC appeals from the judgment entered in favor of
Hartman Snack Group Inc. J.R. argues that the trial court erred in concluding
Hartman did not breach its contractual obligations. We affirm.
J.R. is a trucking and distribution business based in Chambersburg,
Pennsylvania. Wilber Truett is the sole member of J.R. Hartman is a snack
food products manufacturer based in Chambersburg. In April 2014, Hartman
and J.R. entered into a written agreement,1 which allowed J.R. to purchase
snack food products from Hartman and distribute them to stores in an agreed-
____________________________________________
* Former Justice specially assigned to the Superior Court.
1 The trial court noted that neither party produced the signed agreement at
trial, but an unsigned agreement was entered into evidence and both parties agreed as to the accuracy of the contents of this document. See Trial Court Opinion, 12/14/22, at 2 n.1. J-A20011-23
upon area. The agreement specified that J.R. would buy products from
Hartman and Hartman would compensate J.R. on the terms and prices
contained on price lists created by Hartman approximately every quarter.
More specifically, J.R. would be paid a percentage per product which was
calculated based upon how much the store paid for and sold the product.
Moreover, under the agreement, J.R. would bill Hartman for administrative
fees, damaged or stale goods, delivery costs, and marketing displays. The
agreement did not specify the frequency of payments or when the payments
would have to be made.
J.R. distributed Hartman’s products to larger retailers (“centrally billed
accounts”) and smaller stores. The centrally billed accounts would receive
inventory from J.R., but paid Hartman directly. In turn, Hartman would issue
credits to J.R.’s account and subsequently issue payment to J.R. With regard
to smaller retailers, J.R. would be paid directly for such sales and did not
provide invoices for the sales. J.R. serviced approximately 20 such stores;
pertinently, Hartman was not aware of the identity of the smaller stores.
In 2015, Hartman entered into a partnership with Utz Quality Foods to
distribute its products. As such, Hartman notified J.R. that it was terminating
their agreement effective February 28, 2016. In exchange for a successful
termination of the agreement, the notice of termination offered to pay J.R. a
bonus payment of 2% of its 2015 sales if J.R. provided Hartman specific
information about its accounts and continued performance through the last
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day of the agreement. J.R. only provided Hartman information on four smaller
store accounts, despite having over 20 accounts of this nature. Hartman
issued a final payment in May 2016.
Dissatisfied with the final payment, J.R. consulted with a certified public
accountant, Randy Zook, to review statements and invoices to determine
whether J.R. was due any further money from Hartman. J.R. informed Zook
that it purchased Hartman’s products; J.R. was entitled to a 28% markup for
all of Hartman’s products that it had purchased; Hartman invoiced J.R. for
stale and damaged products; and the smaller stores paid an estimated $1,200
per week for distribution of Hartman’s products. Utilizing the evidence
provided by J.R., Zook opined that Hartman owed J.R. $74,240 between the
initial 2014 agreement and the offer contained in the termination letter.
Hartman refused to pay J.R. this money.
On February 3, 2017, J.R. filed a complaint against Hartman, raising
breach of contract claims arising out of the 2014 agreement and the
termination letter. Hartman filed an answer with new matter, and J.R. filed an
answer to the new matter. The trial court then held a non-jury trial, at which
Truett, Zook, and Amy Hartman, an owner of Hartman, testified. Ultimately,
the trial court ruled in favor of Hartman, finding that J.R. had not established
a breach of contract or any damages due. J.R. filed a motion to reconsider,
which the trial court denied. This timely appeal followed.
On appeal, J.R. raises the following questions for our review:
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1. Did the trial court err by entering an order that contradicts the evidence presented at trial?
2. Did the trial court err by finding that [J.R.’s] damages were inaccurate and/or too speculative, such that [J.R.] failed to prove its damages within the requisite degree of certainty?
3. Did the trial court err by finding that there were additional terms in a secondary contract between the parties regarding a “bonus” payment, when [Hartman] produced no evidence of any such additional terms at trial?
Appellant’s Brief at 2-3.
All three of J.R.’s issues challenge the trial court’s verdict. Our standard
of review of such challenges depends on the exact nature of the challenge:
Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, where the issue concerns a question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a non-jury trial are not binding on an appellate court because it is the appellate court’s duty to determine if the trial court correctly applied the law to the facts of the case.
Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 664–65
(Pa. Super. 2014) (citation, brackets, and ellipses omitted).
Additionally, “[w]hen reviewing a verdict in a non-jury trial, this Court
will respect a trial court’s findings with regard to the credibility and weight of
the evidence unless the appellant can show that the trial court’s determination
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was manifestly erroneous, arbitrary and capricious, or flagrantly contrary to
the evidence.” El-Gharbaoui v. Ajayi, 260 A.3d 944, 965 (Pa. Super. 2021)
(citation, quotation marks, and brackets omitted). “Questions of the weight of
the evidence are solely the province of the fact-finder—here, the trial court—
who is free to believe or to disbelieve any evidence it chooses. We cannot and
will not re-weigh the evidence nor re-assess the credibility of the witnesses.”
Ferraro v. Temple Univ., 185 A.3d 396, 406 (Pa. Super. 2018) (citations
omitted). “The test is not whether this Court would have reached the same
result on the evidence presented, but rather, after due consideration of the
evidence the trial court found credible, whether the trial court could have
reasonably reached its conclusion.” El-Gharbaoui, 260 A.3d at 965-66
(citation omitted)
We will review J.R.’s first two claims together. J.R. argues that the trial
court’s judgment contradicts the evidence presented at trial. See Appellant’s
Brief at 10, 15-16; see also id. at 17-18 (noting that the trial court made no
finding that J.R.’s witnesses were incredible, and instead asserting that the
trial court misapplied the evidence in a manner which contradicted J.R.’s
testimony and evidence). J.R. argues that Zook’s uncontroverted testimony
established that Hartman breached the terms of 2014 agreement and owed
J.R. $63,480 for its sales of Hartman’s inventory. See id. at 11, 13-14, 15-
17; see also id. at 29-30 (arguing that the trial court’s finding that Zook’s
calculation of damages was inaccurate was against the weight of evidence).
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J.R. also contends that the trial court erred in finding that it failed to
prove damages to a requisite degree of certainty. See id. at 18. J.R. asserts
that Zook’s calculations of damages was complete and final and Zook testified
that his conclusions were supported by the evidence. See id. at 28-30. J.R.
maintains that the “evidence established that all charges to J.R.’s account—
price adjustments, stale or damaged goods, administrative charges, et cetera
—were all reflected in the statement sheets and were therefore incorporated
into [] Zook’s calculations, and these items did not skew the results or
‘artificially inflate” [its] damages.” Id. at 29; see also id. at 16-17, 19.
Further, J.R. argues that the use of a 28% profit margin in calculating
damages was an accurate representation of J.R.’s profits, noting this was an
average of its varied profit margins on each item sold. See id. at 20-24.
While conceding there was no supporting documentation, J.R. also
argues that the $1,200 weekly sales for the smaller retailers was a reasonable
estimate. See id. at 25-28. J.R. emphasizes that Zook had extensive
experience doing accounting for distributors and small businesses, and his
professional opinion was that business the size of J.R. reasonably could have
had $1,200 in sales per week. See id. at 26.
“It is well-established that three elements are necessary to plead a
cause of action for breach of contract: (1) the existence of a contract, including
its essential terms, (2) a breach of the contract; and, (3) resultant damages.”
412 N. Front St. Assocs., LP v. Spector Gadon & Rosen, P.C., 151 A.3d
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646, 657 (Pa. Super. 2016) (citation omitted). “[D]amages in a breach of
contract action must be proved with reasonable certainty. Otherwise, they are
generally not recoverable.” Newman Dev. Grp. of Pottstown, LLC v.
Genuardi’s Fam. Mkt., Inc., 98 A.3d 645, 661 (Pa. Super. 2014) (en banc)
(citations omitted).
The trial court correctly found that Hartman did not breach the 2014
agreement. See Trial Court Opinion, 12/14/22, at 6 (footnote omitted).
Likewise, the trial court correctly concluded that J.R. has not proven damages
with any reasonable certainty. See Trial Court Opinion, 12/14/22, at 7-8. We
agree with the sound reasoning of the trial court and affirm on this basis. See
id. at 6-8.
Here, the trial court specifically found Zook’s calculations to be “founded
on inaccurate and incomplete information.” Id. at 7. To that end, the parties
admit that the 2014 agreement established that J.R. would buy product from
Hartman at prices set forth on the “price list.” See Agreement, at ¶¶ 5, 7(a).
Truett testified Hartman provided the “price list,” which set forth how much
J.R. would sell the product to the store for and how much it would be paid for
each product. See N.T., 9/27/22, at 15-16. Truett specifically stated that J.R.
would get paid the difference between purchasing the product and selling the
product. See id. at 15-17. Truett admitted that when determining how much
Hartman owed under the 2014 contract, he averaged the price markup
between the different purchase and sale prices, and determined the average
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to be a 28% markup. See id. at 17. However, each product on the “price list”
has its own specific markup and there is no evidence in the record indicating
how many of each item was sold. Notably, Truett’s general average does not
account for the price J.R. paid. In fact, Amy Hartman testified that J.R. bought
products at a promotional distributor cost, and only some of the stores sold
the products at a promotional store cost. See id. at 102-03, 124, 126.
On appeal, J.R. merely seeks to have this Court reweigh the evidence in
a light most favorable to it, and find Zook’s testimony and calculations to be
credible.2 We decline J.R.’s invitation to do so, as the trial court, the fact-finder
in this case, resolved the credibility of the witnesses, and this Court is not
permitted to re-examine those determinations or substitute our judgment for
that of the trial court. See Ferraro, 185 A.3d at 406. The evidence credited
by the trial court established that Hartman did not breach the contract and
J.R. does not cite to any evidence to rebut the trial court’s finding that the
calculation of damages was flawed. In light of the record before us, we discern
no abuse of discretion on the part of the trial court based upon Appellants’
claim that the verdict was against the weight of the evidence. See El-
Gharbaoui, 260 A.3d at 966 (declining appellant’s argument to reassess the
2 Although J.R. labelled its post-trial motion as a motion to reconsider, it raised
claims regarding the weight the trial court afforded the evidence; hence, we decline to find waiver of the weight claim. See, e.g., Bensinger v. Univ. of Pittsburgh Medical Center, 98 A.3d 672, 685 (Pa. Super. 2014) (concluding that a challenge to the weight of the evidence is waived if not raised in a post- trial motion).
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credibility of witnesses to reach a result different from the trial court).
Therefore, J.R.’s claims regarding the 2014 agreement are without merit.
Finally, J.R. contends that the trial court improperly found that the
contract formed out of the termination letter had additional terms that
prevented any recovery here. See Appellant’s Brief at 30-38. J.R. highlights
that Hartman terminated the initial agreement and agreed to pay an additional
2% on its prior year’s sales to ensure a smooth transition to the new
distributor, but offered no further terms. See id. at 37. J.R. argues that it
fulfilled its obligations under the letter and that Hartman is bound by the terms
of the offer as communicated. See id. at 38.
The trial court addressed J.R.’s claims and determined that they are
without merit. See Trial Court Opinion, 12/14/22, at 8-10. We conclude that
the trial court’s reasoning is correct and affirm on this basis, with the following
addendum. See id. Here, J.R.’s entire argument is premised upon its assertion
that it never received the offer letter produced by Hartman, and that therefore
the only condition on the 2% payout was that J.R. continue providing services
until the contract was terminated. However, the trial court found Hartman’s
testimony and evidence regarding the terms of the agreement and how they
were presented to J.R. credible. As this credibility determination finds support
in the record, we cannot overturn it on appeal. As such, J.R.’s admission that
it only provided Hartman with four accounts, see N.T., 9/27/22, at 66; see
also id. at 138-39 (wherein Amy Hartman testified that Hartman was not
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provided a complete list of smaller store accounts by J.R. after Hartman
terminated the agreement), is fatal to its final claim on appeal.
Judgment affirmed.
Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 12/5/2023
- 10 - Circulated 11/28/2023 03:18 PM
IN THE COURT OF COMMON PLEAS OF THE 39" JUDICIAL DISTRICT +. OF PENNSYLVNIA -- FRANKLIN COUNTY BRANCH 3 -3 -- i l e .1- - .2 }- J.R. Enterprises, LLC, Civil Action " %l Plaintiff
v. No. 2017-460
Hartman Snack Group, Inc., Defendant Judge Todd M. Sponseller
OPINION AND ORDER OF COURT
Before Sponseller, J.
)0 IN THE COURT OF COMMON PLEAS OF THE 39" JUDICIAL DISTRICT OF PENNSYLVANIA -- FRANKLIN COUNTY BRANCH
J .R. Enterprises, LLC, Civil Action Plaintiff
vs. No: 2017-460 Hartman Snack Group, Inc., Defendant Judge Todd M. Sponseller
OPINION I. OVERVIEW
The instant matter before the Court involves an action by Plaintiff and against Defendant
asserting two separate and distinct breaches of contract. The first alleged breach arises from the
terms of a written contract between the parties. The second alleged instance of breach involves
an alleged unilateral contract containing an offer by Defendant for Plaintiff to perform. For the
reasons set forth herein, we find that Defendant did breach any of its contractual obligations to
the Plaintiff and will therefore find for Defendant.
II. FACTUAL BACKGROUND
Plaintiff J .R. Enterprises, LLC (hereinafter "Plaintiff') is a distributor of snack food products
and Wilbur "Rusty" Truett (hereinafter "Truett") is the sole member of the LLC. Defendant
Hartman Snack Group, Inc. (hereinafter "Defendant") is a manufacturer of snack foods doing
business as Defendant Foods.
Plaintiff and Defendant entered into a contract in April of 2014 wherein Plaintiff was to
purchase snack food products from Defendant and distribute them in both large and smaller
1 stores over a specific, agreed upon territory.1 The contract provided for the Defendant to sell
product to the Plaintiff "on the terms and at the price established by Defendant from time to time
as set forth on the price list". See Defendant's Exhibit A; Plaintiffs Exhibit 1 at !r5. The contract
also provided for the Plaintiff to "pay Defendant for all products received, per the prices and
terms on the current price list, in accordance with any other agreements made with Defendant ...
[t]he invoices and other forms of Defendant, and other agreement between Defendant and
(Plaintiff), shall govern the terms of payment for the Products. See Defendant's Exhibit A;
Plaintiffs Exhibit I at 7 (a). The contract incorporated price lists that determined the price of
the product to Plaintiff and the price to the account. See Plaintiffs Exhibits 11 and 12. The
contract was silent as to the frequency of payment or what account balance triggered payment.
As a part of this contract, Defendant billed Plaintiff for product purchased, recurring
administrative fees associated with larger accounts, damaged or stale goods for which Plaintiff
had already been credited, delivery costs and marketing and display products used by Plaintiff.
See Defendant's Exhibit A; Plaintiff s Exhibit 1 at 7?4, 5, 8.
The larger stores, called centrally billed accounts, were billed by Defendant and in turn paid
Defendant directly. Defendant kept a running tabulation of debits and credits or statement for
these centrally billed accounts that set forth invoices, credits and payments issued to Plaintiff.
See Defendant's Exhibit E; Plaintiffs Exhibits 4, 5 and 6. Defendant paid Plaintiff periodically
for these sales.
The statement does not reflect any of the sales made by Plaintiff to the smaller stores.
Throughout the life of the contract, Plaintiff distributed Defendant's products to these smaller
1 Neither party produced a signed and dated copy of the contract at trial, but both parties appear to agree to the form of the writing. See Plaintiff's Exhibit 1; Defendant's Exhibit A.
2 stores and received invoices for these sales, but did not provide these invoices to Defendant.
The smaller stores paid Plaintiff directly for these products.
At the end of 2015, Defendant entered into a partnership with Utz Quality Foods for,
amongst other things, distribution of its snack foods. See Defendant's Exhibit M hereinafter
referred to as "the appreciation letter". In the letter sent to its distributors, including Plaintiff, in
"appreciation" for their efforts, Defendant offered to pay distributors 2% of their 2015 annual
sales in return for "successful termination" of the contract period (90 days from the date of the
letter). This included cooperation in providing Defendant information on specific accounts.
In an email exchange between April 29, 2016 and May 2, 2016 Defendant sought
information from Plaintiff regarding the smaller independent accounts that Plaintiff serviced. See
Defendant's Exhibit G at pp 3-5. Plaintiff provided the names of four small accounts despite
having actually serviced approximately 20 such accounts. Defendant issued final payment to
Plaintiff in May of 2016.
Apparently being dissatisfied with Defendant's final payment under the contract, Plaintiff
consulted with Randy Zook, a Certified Public Accountant (hereinafter "Zook") to review
statements and invoices and determine whether Plaintiff was due any outstanding payments from
Defendant. In aid of this consultation, Plaintiff informed Zook of the following: I) Plaintiff
purchased all Defendant's products from Defendant and Defendant invoiced Plaintiff for the
product on his statement; 2) Plaintiff was entitled to a 28% mark-up for all Defendant's product
purchased; 3) the central billed accounts paid Defendant directly and Defendant then credited
Plaintiff on its statements after receipt of invoices for the sales; 4) smaller stores paid Plaintiff
directly; 5) Plaintiff was paid an estimated $1,200 per week for distribution to the small stores.
See Plaintiffs Exhibit 8; Defendant's Exhibit J. While Plaintiff informed Zook that Defendant
3 invoiced Plaintiff for stale or damaged goods and display merchandise, Zook determined that
these costs were immaterial to his analysis and review. Plaintiff evidently did not inform Zook
that Defendant invoiced Plaintiff for administrative fees associated with the central billed
accounts or that price lists controlled the costs of the product distributed by Plaintiff and
therefore its compensation, and not an across the board 28% markup. Apparently the only
documentation that Plaintiff supplied to Zook was a copy of the running statement from the
beginning of the contractual relationship through March of 2016. Plaintiff provided no other
documentation for Zook's review.
Using the information provided by Plaintiff, Zook formulated an opinion, reduced to an
email dated June 27, 2016 to Plaintiffs former counsel that Defendant owed Plaintiff$74,240.00
between both the contract and the offer of 2% of the 2015 annual sales. Plaintiff now demands
this amount from Defendant."
III. PROCEDURAL HISTORY
Plaintiff initiated this matter by filing a Complaint February 2, 2017. Defendant Answered
the Complaint on May 17, 2017. Plaintiff moved for a status conference on September 17, 2019
and this Court set the conference for November 8, 2019. Following the status conference, we
entered a case management Order on November 18, 2019. Thereafter Plaintiffs counsel was
suspended from the practice of law, and Defendant sought a status conference to seek guidance
on how to proceed as discovery requests to Plaintiff were pending. By Order dated December 12,
2019 we set another status conference for January 21, 2020. Current Plaintiffs counsel made his
appearance on January 16, 2020 and following the January 21, 2020 status conference the Court
entered another case management Order. On April 21, 2020 the Court entered an Order enlarging
the time set forth in the most recent case management Order. On June 7, 2021, Plaintiffs counsel
See Plaintiff's Complaint at its WHEREFORE clause.
4 moved the Court for a pretrial conference. We set the pretrial conference for November 4, 2021
and at the pretrial conference we established a bench trial date for April 11, 2022. Plaintiff
moved for a continuance, which we granted and we scheduled the trial for September 27, 2022.
At trial, representatives for both parties testified as did Randy Zook. Following the taking of
evidence, the Court Ordered briefs from the parties who timely complied. This matter is now
ready for decision.
IV. DISCUSSION
Although the Complaint does not contain different counts, Plaintiff proceeds under two
separate instances of alleged breach of contract. The first concerns the March 2014 Contract
between Plaintiff and Defendant and Defendant's alleged failure to pay in accordance with a
purported 28% mark-up for all Defendant's product distributed by Plaintiff.3 Plaintiff contends
that Defendant failed to fully pay for the product distributed and alleges $63,580.00 in damages.4
Plaintiff also contends that Defendant failed to pay the full amount of the 2% of the 2015 sales
pursuant to the "appreciation" letter occasioned by Defendant's partnering with Utz for
distribution. Plaintiff asserts that Defendant failed to pay $10,660.00 relative to the letter.
Defendant contends that the 28% mark-up is not a contractual obligation as Plaintiff asserts and
therefore Plaintiff cannot prove a breach of the agreement and that Plaintiff's calculations as to
damages are too uncertain to be recoverable. Further, Defendant contends that Plaintiff failed to
perform in accordance with the offer relative to the appreciation letter, and therefore no contract
was formed between the parties and Plaintiff is not entitled to be paid pursuant to that letter. We
will discuss each of these theories or instances separately.
a. Alleged Breach of the 2014 Contract
° See Plaintiff's Complaint at 75. 4 See Plaintiff's Complaint at fr8.
5 An axiomatic principle of contract law is that "[T]o successfully maintain a cause of action
for breach of contract the plaintiff must establish: (I) the existence of a contract, including its
essential terms, (2) a breach of a duty imposed by the contract, and (3) resultant damages." Hart
v. Arnold, 884 A.2d 316,332 (Pa. Super. 2005) (add. citations omitted). A breach of contract
occurs when a party fails to perform a duty under the contract or "violates an obligation or
engagement and that breach is material." Ratner v. Iron Stone Real Estate Fund I, LP, 2018 WL
4940333 (Phila. Ct. Com. Pl. 2018); citing Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 896 (Pa.
Super. Ct. 2011). Our appellate courts have held that "damages in a breach of contract action
must be proved with reasonable certainty. Otherwise, they are generally not recoverable."
Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family Mkt., Inc., 98 A3d. 645 (Pa.Super.
2014). We find that Plaintiff failed to meet its burden of proof that a) Defendant breached the
Contract and b) that he suffered recoverable damages.
i . Breach
The parties herein agree that Plaintiff was to be paid for product sold based on the terms of
the price list that was in effect at the time of the sale. Plaintiff contends that the price lists
provide for "an average of 28% markup on the products it purchases and sold".' When Plaintiff
consulted with Randy Zook, it provided information that it was to be compensated with an across
the board 28% markup. This information was not accurate under the price lists that controlled
Plaintiff's compensation and Zook based his calculations on this inaccurate information. Plaintiff
cannot substantiate a breach of contract based on a failure to perform a contractual obligation
when the Plaintiff has misrepresented the obligation at issue.
ii. Damages
5 Plaintiff's Findings of Fact and Conclusions of Law at Jr 10.
6 The merits of Plaintiffs claim for damages are based solely on Randy Zook's calculations.
Those calculations are founded on inaccurate or incomplete information. Moreover, from the
face of the report, it appears that the opinions set forth therein are not meant to be final.
Randy Zook based his calculations of the Plaintiffs gross sales by adding together all the
invoices issued to the Plaintiff without making any effort to determine which invoices were
associated with inventory that was actually purchased. Plaintiff did not inform Zook about the
administrative fees charged by Defendant for the administration of the centrally billed accounts.
Accordingly, even if Zook's method of calculating Plaintiffs compensation was correct, the
calculations performed with inaccurately high figures for Plaintiffs purported damages.
Furthermore, in performing his calculations, Randy Zook failed to account for reductions to
credits for sales made to Ahold Delhaize stores, one of the centrally billed accounts. Ahold
Delhaize stores purchased Defendant's products at normal store costs, and not at a promotional
store rate as most stores did. Therefore, when Defendant issued credits for sales to Ahold
Delhaize stores, it adjusted or reduced them to reflect the discounted rate that at which Plaintiff
purchased the product. Zook did not account for these adjustments, which also artificially
inflated Plaintiffs damages figures.
Additionally, the evidence presented at trial reflected that Defendant did make payments to
Plaintiff for 2016 sales. Randy Zook' s calculations failed to account for these payments.
Plaintiff did not provide documentation of his sales to the smaller, direct bill stores to Randy
Zook and as a result payment for those sales are absent from Zook's analysis, again adding to the
imprecision of his opinions. Furthermore, Plaintiff, who was in sole control of these records, did
not provide the complete documentation in response to discovery requests, preventing Defendant
from mounting a defense to them.
7 Finally, Randy Zook's calculations were not complete. Zook set forth his opinions in an
email to Plaintiffs prior counsel dated June 27, 2016 wherein he stated that "we are seeking
guidance as to our next step which I believe to be verifying the credit memos on the account for
missing credits. I do not want to take that step until I receive your viewpoints." See Plaintiffs
Exhibit 8; Defendant's Exhibit J. There is no evidence that this next step was taken or the
opinions were finalized.
Based on the above, even if Plaintiff was able to prove that Defendant breached its
agreement, Plaintiff has failed to prove damages with any amount of certainty. "As a general
rule, damages are not recoverable if they are too speculative, vague or contingent and are not
recoverable for loss beyond an amount that the evidence permits to be established with
reasonable certainty." Newman Dev. Grp. of Pottstown, 98 A.3d at 661 (quoting Spang & Co. v.
US. Steel Corp., 519 Pa. 14, 545 A.2d 861, 866 (1988)). Here there exist too many inaccuracies
or important information was omitted from the damages analysis altogether to allow for
reasonable certainty. Accordingly, we find that Plaintiff has failed to prove its damages.
b. Alleged breach of the promise to pay 2% of 2015 sales
Plaintiff claims that when Defendant sent its 2016 "appreciation letter" offering to pay 2% of
Plaintiff sales in return for working through Defendant's transition away from independent
distributors, Plaintiffs performance in that regard created a contractual obligation to pay that
amount or $10,660.00.6 Defendant claims that Plaintiff failed to fully meet the terms of the offer
and therefore no contract was formed. 7
Foundational contract law recognizes two basic types of contracts- unilateral and bilateral
contracts. See Stephan v. Waldron Elec. Heating and Cooling, LLC, 100 A.3d 660, 665 (Pa.
6 Plaintiffs Findings of Fact and Conclusions of Law at 11'11' 23 and 24 7 Defendant's Proposed Conclusions of Law at II' 9
8 Super. 2014). A bilateral contract consists of two promises and contemplates one party
"promis[ing] to do or forbear from doing something in exchange for a promise from the other
party to do or forbear from doing something else". Id. quoting First Home Sav. Bank, FSB •
Nernberg, 436 Pa.Super. 377, 648 A.2d 9, 14 (1994). Unilateral contracts by comparison
involve only one promise and are formed when one party makes a promise in exchange for the other party's act or performance.Significantly, a unilateral contract is not formed and is, thus, unenforceable until such time as the offeree completes performance.
Id. also quoting Greene v. Oliver Realty, Inc., 363 Pa.Super. 534,526 A.2d 1192 (1987).
The letter containing Defendant promise to pay independent distributors 2% of their 2015
sales constitutes a unilateral contract- it makes a promise to pay upon the offeree's performance.
In this case the letter requested the performance of the "successful termination" of the contract
period (90 days from the date of the letter). This included not only servicing customers through
the end of the contract period but also required distributors to provide Defendant information on
specific accounts. Plaintiff failed to perform this obligation.
In the instant case, Defendant followed up with Plaintiff by requesting, via email,
information about specific small direct bill accounts, specifically sought by Defendant. See
Defendant's Exhibit G at pp 3-5. In response Plaintiff only provided information as to four of
approximately twenty smaller stores to which they distributed.
In an email exchange between April 29, 2016 and May 2, 2016 Defendant sought
information from Plaintiff regarding the smaller independent accounts that Plaintiff serviced.
Plaintiff provided the names of four small accounts despite having actually serviced
9 approximately 20 such accounts. Accordingly, Plaintiff failed to perform and no contract was
formed. Therefore, Plaintiff cannot recover under this theory of breach.
V. CONCLUSION
As set forth above, we find, following a trial without jury that Plaintiff has failed to meet its
burden that Defendant breached its distribution agreement that it had with Plaintiff. Moreover,
we find that Plaintiff failed to meet its burden to prove damages in connection to this alleged
breach with reasonable certainty. With regard to the promise to pay 2% of the 2015 sales, we
find that because Plaintiff failed to perform, no contract was formed and therefore Defendant had
no obligation to pay. Accordingly we find for the Defendant and will Order that judgment be
entered in favor of the Defendant and against the Plaintiff. An appropriate Order follows.
10 . .
IN THE COURT OF COMMON PLEAS OF THE 39" JUDICIAL DISTRICT OF PENNSYLVANIA -- FRANKLIN COUNTY BRANCH ---n ? : :c t
J.R. Enterprises, LLC, -75 Civil Action Plaintiff No. 2017-460 vs.
Hartman Snack Group, Inc., Defendant Judge Todd M. Sponseller
ORDER
AND Now aw/''a r December, 2022, for the reasons set forth in the foregoing opinion, we find that Plaintiff has failed to meet its burdens of proof, and therefore find in favor of the Defendant Hartman Snack Group, Inc. and against the Plaintiff J.R. Enterprises, LLC. We therefore direct the Prothonotary to Enter Judgment in favor of the Defendant Hartman Snack Group, Inc. Pursuant to Pa.R. C.P. 236 (a)(2), (b), (d),, the Prothonotary shall give written notice of the entry of this Order, including a copy of this Order, to each party's attorney of record, or if unrepresented, to each party, and shall note in the docket the giving of such notice and the time and manner thereof.
cc: James M. Stein, Esq. counsel for Plaintiff J.R. Enterprises, LLC John B. Keller, Esq. Counsel for Defendant Hartman Snack Group, Inc.