J-S09043-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
JONERIK M. KRAMER : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : CLEARCREEK SIDING : No. 1269 EDA 2023
Appeal from the Judgment Entered November 3, 2023 In the Court of Common Pleas of Delaware County Civil Division at No(s): CV-2019-005880
BEFORE: PANELLA, P.J.E., NICHOLS, J., and BECK, J.
MEMORANDUM BY BECK, J.: FILED JUNE 21, 2024
JonErik M. Kramer (“Kramer”) appeals from the judgment entered in the
Delaware County Court of Common pleas in favor of ClearCreek Siding
(“ClearCreek”).1 On appeal, Kramer argues that the trial court erred in
determining that he is not entitled to judgment notwithstanding the verdict or
a new trial, in excluding evidence of consequential damages, and in denying
Kramer’s motion in limine to exclude hearsay testimony by ClearCreek’s Chief
Executive Officer. Because we conclude that Kramer’s claims lack merit or are
waived, we affirm.
The trial court summarized the factual and procedural history of this
case as follows:
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1 ClearCreek sells and installs concrete siding for, inter alia, homes and commercial buildings. J-S09043-24
[Kramer] testified that he discovered [ClearCreek] online. N.T., 4/17/2023, at 75. Sometime in 2015, he reached out to them to inquire about their product. Id. He explained that he was intrigued by the product, which had the appearance of a log but consisted of a foam core with a concrete layer around it. Id. at 74-75. [Kramer] testified that he wanted to use the material for his own home. Id. Sometime in 2016[, Kramer] reached out to [ClearCreek] to obtain the necessary materials for his project. He testified that the first quote from [ClearCreek] was provided in 2016, which he did not accept. Id. at 108; see also Exhibit D-6. Following further discussions, [ClearCreek] provided a second [quote] to [Kramer] on or about September 17, 2017. N.T., 4/17/2023, at 109; see also Exhibit D-7. [Kramer] did not purchase material from [ClearCreek] following that quote[.] N.T., 4/17/2023, at 110. Another quote was provided on April 18, 2018[,] which [Kramer] ultimately accepted. Id. at 111-12.
The evidence at trial established that the quotes provided by [ClearCreek] set forth that no siding would be provided for the basement of [Kramer]’s home. Id. at 112-13. [Kramer] negotiated and was given a 10% “referral discount” on his order. Id. Following receipt of the quote in April of 2018, [Kramer] made a deposit with [ClearCreek]. Id. at 113. [Kramer] understood that after the deposit was made, [ClearCreek] still needed additional information in order to finalize his order. Id. at 114.
Discussions between the parties continued in the months that followed. N.T., 4/18/2023, at 119. These discussions included requests from [Kramer] for additional material. Id. Based upon additional information provided from [Kramer], [ClearCreek] provided another quote in July. [Id.] This quote included additional materials for [Kramer]’s basement, and therefore cost more than the quote that had been provided to and accepted by [Kramer] in April. Id. at 120-22. Discussions continued, and on September 11, 2018, [ClearCreek] provided another quote, which included less material and cost less than the quote provided in July. Id. at 123-24. Upon receipt of this quote, [Kramer] asked [ClearCreek] for a breakdown of the prices of each special[]order item in the proposal. Id. at 128. [ClearCreek] provided this information in an email the following day. Id. at [47, 129-30]. [ClearCreek] conveyed that the order would be promptly packed and prepared for shipment upon confirmation from [Kramer] and inquired about shipping arrangements. Id. at 47.
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[Kramer] responded that same day via email stating that he did not want the order and requested a reduction in price. Id. at 49-50. According to [ClearCreek], [Kramer]’s rejection of the items and demand for a reduced price “was certainly a big deal in our company.” Id. at 50. [ClearCreek] testified that at that stage of the process, the company had already produced all the custom parts for [Kramer] in good faith after he had agreed to pay for them. Id. [ClearCreek] explained that the parts, since they were custom, were of no use to anyone else, so the company was forced to agree to [Kramer]’s demand and accept payment for the lower amount. Id. This was communicated via email on that same day, September 12, 2018. Id. at 51; see also Exhibit D-26. [Kramer] declined this offer. Id. at 52.
[ClearCreek] sent another email to [Kramer] on September 14, 2018[,] which set forth the following:
JonErik,
Thank you for your email yesterday.
In order to resolve this, and put it behind us, we agree to accept a final payment in the amount of $14,760, with the understanding that you will arrange freight, and make your final payment no later than end of day today, so that we can get your order ready for pick- up.
As I mentioned earlier, we will need 48 hours (business hours) until product will be packed and is ready for pick up.
Let me know if you have any questions.
Thanks!
Lorissa Cross
See Exhibit D-28.
[Kramer] made a final payment[,] and on or about September 19, 2018[, Kramer] received his order from [ClearCreek]. When [Kramer] contacted [ClearCreek] claiming that he was owed more
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materials than he received, [ClearCreek] explained that he was sent the materials that were listed in the breakdown provided with his updated quote. [N.T., 4/18/2023, at] 63-65. [Specifically, Kramer argued that ClearCreek was to ship him 173 pieces of log siding when it only sent him 162 pieces.] [ClearCreek] further explained that they did not currently have any additional siding available and advised that if [Kramer] needed more material, he could order additional pieces. Id.; see also Exhibit D-33. [ClearCreek] further explained “the quote did not include 11 pieces and the total that you paid on that quote did not include the 11 pieces. If it turns out that you need those pieces, we’d be happy to send them (upon payment). Please let me know at your convenience the accessory count and I can get you an invoice.” Id. at 66; see also Exhibit D-34.
[Kramer] remained in contact with [ClearCreek] and requested and was provided additional supplemental materials from [ClearCreek] free of charge. On or about December 7, 2018, [Kramer] informed [ClearCreek] that certain items in that order were damaged in transit and had been refused. N.T., 4/17/2023, at 82; N.T., 4/18/2023, at 70. [ClearCreek] agreed to remake and reship replacement items and, at [Kramer]’s request, also included additional items requested by [Kramer] free of charge. N.T., 4/18/2023, at 71. [Kramer] again requested additional materials, and an invoice for $1266 was sent to him on January 30, 2019. Id. at 74. [Kramer] did not remit payment for these items, however, so the additional items were not shipped. Id.
Trial Court Opinion, 8/11/2023, at 1-4 (footnotes omitted, citations modified).
On October 17, 2019, Kramer filed a complaint against ClearCreek
raising a claim of breach of contract.
On April 18, 2023, following a two-day trial, a jury rendered a verdict in favor of [ClearCreek, finding that ClearCreek did not breach its contract with Kramer]. [Kramer] filed a [m]otion for [p]ost-[t]rial relief on May 1, 2023[,] in which he made a [m]otion for a [n]ew [t]rial and a [m]otion for [j]udgment [n]otwithstanding the [v]erdict. As it was not filed within 10 days, [Kramer’s] motion was untimely. Nonetheless, [ClearCreek] filed an answer on May 2, 2023, and on May 5, 2023, following a review of same, this court denied the [m]otion for [p]ost-[t]rial relief.
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Id. at 4-5.
On May 18, 2023, Kramer filed a notice of appeal. 2 Both the trial court
and Kramer have complied with Pennsylvania Rule of Appellate Procedure
1925. Kramer presents the following issues for review:
[1.] Is [the t]rial [c]ourt’s [o]rder docketed May 5, 2023 denying [Kramer]’s [m]otion for [p]ost-t]rial [r]elief reviewable on appeal?
[2.] Did [the t]rial [c]ourt commit [e]rrors of law and or abuse its discretion, by excluding evidence of consequential damages?
[3.] Did [the t]rial [c]ourt abuse its discretion and commit an error of law, by [d]enying [Kramer]’s [m]otion [i]n [l]imine to [p]reclude [ClearCreek’s] Kevin Cross from [p]resenting HEARSAY [t]estimony and evidence at trial?
[4.] Did [the j]ury [err] entering [its] verdict for [ClearCreek] and against [Kramer]?
[5.] Did [the t]rial [c]ourt [o]rder signed May 3, 2023, [err] in denying [Kramer’s] [m]otion for [p]ost-t]rial [r]elief, and did it commit errors of law by finding “[Kramer] was not entitled to [j]udgment [n]otwithstanding the [v]erdict or a [n]ew [t]rial”, as set forth in [the t]rial [c]ourt[’]s [o]pinion?
[6.] Did [the t]rial [c]ourt commit [e]rrors of law and or abuse its discretion, as its [o]pinion makes many incorrect statements in its support of [ClearCreek] and against [Kramer]?
2 Kramer initially appealed from the order denying his motion for post-trial relief following entry of the verdict. See Notice of Appeal, 5/31/2023. Because the trial court had not entered judgment, this Court issued a show- cause order directing Kramer to praecipe for the entry of judgment. See Melani v. Northwest Eng’g, Inc., 909 A.2d 404, 405 (Pa. Super 2006) (explaining that the entry of judgment is a prerequisite to this Court’s exercise of jurisdiction). Kramer timely complied and this Court discharged the show- cause order. See Morgan v. Millstone Res. Ltd., 267 A.3d 1235, 1238 n.1 (Pa. Super. 2021) (noting that jurisdiction may be perfected after filing of appeal and upon docketing of final judgment).
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[7.] Did [the trial court] abuse [its] discretion and commit an error of law by leading and suggesting to [ClearCreek]’s [c]ounsel what to ask [Kramer] during cross-examination, and by making untrue statements about the case, that severely [p]rejudice[d] [Kramer]?
Kramer’s Brief at 15-16.3
For his first issue, Kramer argues that, despite the trial court’s contrary
statement in its 1925(a) opinion, he timely filed his post-trial motions. See
Kramer’s Brief at 81-83. Thus, he asserts that he preserved all the issues he
raised in his post-trial motions for appellate review. See id.
“Pennsylvania Rule of Civil Procedure 227.1(c) requires the filing of post-
trial motions within ten days after (1) verdict, discharge of the jury because
of inability to agree, or nonsuit in the case of a jury trial; or (2) notice of
nonsuit or the filing of the decision in the case of a trial without jury.”
Agostinelli v. Edwards, 98 A.3d 695, 700 (Pa. Super. 2014) (quoting
Pa.R.C.P. 227.1(c)). Rule 227.1(b)(2) further provides that “post-trial relief
may not be granted unless the grounds therefor ... are specified in the motion.
The motion shall state how the grounds were asserted in pre-trial proceedings
or at trial. Grounds not specified are deemed waived unless leave is granted
upon cause shown to specify additional grounds.” Id. (quoting Pa.R.Civ.P.
227.1(b)(2)).
3 We note that we have reordered the issues Kramer presents for ease of review.
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In this case, the trial court read the verdict in open court before the
parties on April 18, 2023. N.T., 4/18/2023, at 158. Consequently, Kramer
had to file his post-trial motions within ten days, or no later than April 28,
2023. Kramer, however, did not file his post-trial motions until May 1, 2023.
Thus, Kramer’s post-trial motions were untimely. See Agostinelli, 98 A.3d
at 700.
Regarding untimely post-trial motions, we have stated that “[i]n
situations in which a party files post-trial motions out of time and a specific
objection is made thereto by the opposing party, the trial court, in deciding
whether to rule upon the merits of the motion, must consider the nature of
the derelict party’s default as well as the resulting prejudice to the objecting
party.” Carlos R. Leffler, Inc. v. Hutter, 696 A.2d 157, 166 (Pa. Super.
1997). “If objections are lodged, … the trial court may still, in its discretion,
elect to entertain the motion or dismiss the motion, but must first consider
whether the objecting party would be prejudiced by the court’s ruling.” Id.
Here, the record reveals that ClearCreek objected to the untimeliness of
Kramer’s post-trial motions. See Memorandum of Law in Support of
ClearCreek’s Response to Motion for Post-Trial Relief, 5/2/2023, ¶ 1.
Nonetheless, ClearCreek did not state how it was prejudiced by the untimely
nature of Kramer’s post-trial motions. See id. In its order denying Kramer’s
post-trial motions, the trial court is silent as to timeliness. See Trial Court
Order, 5/5/2023. And although the trial court acknowledged the untimeliness
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of Kramer’s post-trial motions in its Rule 1925(a) opinion, it nonetheless
addressed the merits of the issues Kramer raised. Trial Court Opinion,
8/11/2023, at 5-10.
Based on the foregoing, we decline to find that Kramer has failed to
preserve any issues for review because his post-trial motions were untimely.
Kramer filed the post-trial motions only one business day late, there is nothing
in the record that indicates ClearCreek was prejudiced by the late filing, and
the trial court addressed the issues Kramer raised in its Rule 1925(a) opinion.
This determination aligns with our long-standing policy that we should liberally
construe our Rules of Civil Procedure to effectuate their intent—the timely and
fair adjudication of disputes. See Hutter, 696 A.2d at 166; see also
Pa.R.Civ.P. 126(a).4
For his second issue, Kramer argues that the trial court erred in granting
ClearCreek’s motion in limine, which precluded him from presenting evidence
of consequential damages—namely, evidence of fines and citations from
Newtown Township (the municipality in which the property at issue is
situated). Kramer’s Brief at 61-65. Newtown Township cited Kramer for not
having siding installed on his home. Id. at 46. Kramer baldly asserts that his
4 We note that to the extent Kramer argues that the order denying his post- trial motions was a final, appealable order, he is incorrect. See supra, note 1. As we previously discussed, however, Kramer took the steps necessary to perfect his appeal in this case. See id.
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inability to present evidence of consequential damages was prejudicial to his
case. See id.
We review a trial court’s evidentiary rulings for an abuse of discretion.
Brady v. Urbas, 111 A.3d 1155, 1161 (Pa. 2015). “An abuse of discretion
occurs where the trial court reaches a conclusion that overrides or misapplies
the law, or where the judgment exercised is manifestly unreasonable, or is
the result of partiality, prejudice, bias, or ill will.” Id. (quotation marks and
citation omitted). “To the degree the issue of whether the law has been
misapplied involves a purely legal question, it is reviewed de novo.” Id.
“Consequential damages are generally understood to be other damages
which naturally and proximately flow from the breach of [a] contract.” Cresci
Constr. Servs., Inc. v. Martin, 64 A.3d 254, 264 n.15 (Pa. Super. 2013)
(quotation marks and citations omitted). “[C]onsequential damages[,] to be
recoverable[,] must have been reasonably foreseeable at the time the contract
was made.” Frank B. Bozzo, Inc. v. Elec. Weld Div. of Fort Pitt Bridge
Div. of Spang Indus., Inc., 423 A.2d 702 (Pa. Super. 1980), aff’d, 435 A.2d
176 (Pa. 1981).
The trial court determined that the evidence relating to the fines and
citations that Kramer received predated any contract that existed between
Kramer and ClearCreek. Trial Court Opinion, 8/11/2023, at 9. This is
supported by ClearCreek’s motion in limine, which contains public docketing
statements showing that the fines Kramer received from Newtown Township
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occurred prior to April 2018. See ClearCreek’s Motion in Limine to Preclude
Testimony or Documentary Evidence of Consequential Damages, 3/21/2023,
¶ 11, Exhibit C. The earliest Kramer claims that a contract existed between
himself and ClearCreek was April 16, 2018. See Kramer’s Response in
Opposition to ClearCreek’s Motion in Limine, 3/27/2023, ¶ II(1). Tellingly,
Kramer does not rebut the trial court’s conclusion that the fines and citations
from Newtown Township predated his contract with ClearCreek. See Kramer’s
Brief at 61-65. Instead, the record reflects that in his response to ClearCreek’s
motion in limine, Kramer baldly alleged, without explanation, that the dates
of the citations and fines had no relevance to his case. Kramer’s Response in
Opposition to ClearCreek’s Motion in Limine, 3/27/2023, ¶ II(11) ).
Additionally, Kramer cites no authority, other than Pennsylvania Rule of
Evidence 403,5 in support of his argument that the trial court should have
permitted evidence of the fines and citations at issue. See Kramer’s Brief at
61-65. We are unpersuaded by Kramer’s reliance on Rule 403, as it does not
in any way support his claim that the evidence of the fines and citations were
admissible in this case. Because Kramer has failed to make any argument, or
otherwise demonstrate that the evidence of consequential damages he sought
to present naturally flowed from the alleged breach of contract, we conclude
5 Rule 403 states that “[t]he court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
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that the trial court did not abuse its discretion in precluding this testimony.
See Cresci, 64 A.3d at 264 n.15.
For his third issue, Kramer argues that the trial court abused its
discretion in denying his motion in limine to preclude Kevin Cross (“Cross”),
ClearCreek’s Chief Executive Officer, from testifying at trial. Kramer’s Brief at
83-88. Citing Pennsylvania Rule of Evidence 602, Kramer makes bald
assertions that Cross could not possibly possess firsthand information on this
case because he never spoke directly with Kramer, and that therefore, “[a]ny
and all testimony by [Cross] is beyond [h]ighly [p]rejudicial, is not only an
abuse of [c]ourts [sic] discretion and an error of law, but is also a travesty of
justice for all.” Id. at 87-88.
Pennsylvania Rule of Evidence 602 provides that “[a] witness may
testify to a matter only if evidence is introduced sufficient to support a finding
that the witness has personal knowledge of the matter. Evidence to prove
personal knowledge may consist of the witness’s own testimony.” Pa.R.E.
602.
The record reflects that at trial, Cross testified that he was “very
familiar” with the substance of Kramer’s order and interactions Kramer had
with his company. N.T., 4/18/2023, at 13. Cross explained that he kept
himself abreast of the ongoing issues with Kramer’s order by meeting with his
staff and reading email communications between Kramer and his employees.
Id. at 15. Additionally, Cross further testified that he was heavily involved in
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the quotes ClearCreek provided to Kramer because the company’s estimator
worked right outside his office. Id. at 18. Cross explained that “she and I
discussed the process when it occurred, as it occurred. And we provided a
number of different quotes. I do review each quote, and I do sign off on each
quote.” Id.
Based on the foregoing, the record reveals that ClearCreek presented
evidence sufficient to support a finding that Cross had personal knowledge of
his company’s communications and dealings with Kramer. See Pa.R.E. 602.
We therefore conclude that the trial court did not abuse its discretion in
denying Kramer’s motion to preclude Cross’ testimony.
Next, we address Kramer’s fourth, fifth, and sixth issues together, as
they are related. In issues four and five, Kramer argues that the jury wrongly
entered a verdict in favor of ClearCreek and that the trial court erred in
determining that Kramer was not entitled to judgment notwithstanding the
verdict. Kramer’s Brief at 47-65. In issue six, Kramer purports to challenge
several of the statements and legal conclusions the trial court made in its Rule
1925(a) opinion concerning the verdict. Kramer’s Brief at 65-81. Kramer’s
sixth issue largely regurgitates his arguments relating to the jury’s verdict, his
claim that he was entitled to judgment notwithstanding the verdict, and that
the trial court erred in precluding him from presenting evidence of
consequential damages. See id.
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At no point in his recitation of any of these arguments does Kramer cite
a single authority in support of his claims—he does not even cite the legal
standards for weight of the evidence claims or judgment notwithstanding the
verdict claims. See Kramer’s Brief at 47-81. The entirety of his briefing of
these claims amounts to nothing more than bald assertions of trial court error
and unsupported contentions that the jury improperly weighed the evidence.
See id. Kramer also fails to offer any legal analysis, explanation, or argument
as to how the trial court erred with respect to any of these issues. See id.
“The Rules of Appellate Procedure state unequivocally that each
question an appellant raises is to be supported by discussion and analysis of
pertinent authority.” Giant Food Stores, LLC v. THF Silver Spring Dev.,
L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (quotation marks and citation
omitted); see also Pa.R.A.P. 2119(a). We have repeatedly stated that “[t]his
Court will not consider the merits of an argument which fails to cite relevant
case or statutory authority.” In re Estate of Whitley, 50 A.3d 203, 209 (Pa.
Super. 2012) (quotation marks and citation omitted). The failure to include
citations to relevant authority constitutes waiver of the issue on appeal, as it
is not the role of this Court to develop an appellant’s argument where the brief
provides mere cursory legal discussion. Lechowicz v. Moser, 164 A.3d
1271, 1276 (Pa. Super. 2017).
Because Kramer has failed to properly develop issues four through six
in a manner allowing for meaningful appellate review, we find these claims
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waived. See Lechowicz, 164 A.3d at 1276; In re Estate of Whitley, 50
A.3d at 209.
For his final issue, Kramer argues that the trial court erred in telling
ClearCreek’s counsel what questions he should ask Kramer on cross-
examination. Kramer’s Brief at 89-91. Kramer, however, has failed to
preserve this claim for review, as he did not include it in his post-trial motions
or his 1925(b) statement. It is well settled that “issues not raised in post-trial
motions are waived.” D.L. Forrey & Assocs., Inc. v. Fuel City Truck Stop,
Inc., 71 A.3d 915, 919 (Pa. Super. 2013). Similarly, “any issue not raised in
an appellant’s Rule 1925(b) statement will be deemed waived for purposes of
appellate review.” Hess v. Fox Rothschild, LLP, 925 A.2d 798, 803 (Pa.
Super. 2007). Accordingly, Kramer has waived his final issue on appeal.
Judgment affirmed.
Date: 6/21/2024
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