Mirabella, J. v. St. Joseph's University, and M.W.

• Court: Superior Court of Pennsylvania
• Decided: February 20, 2026
• Docket: 1818 EDA 2024
• Status: Unpublished
• Author: Sullivan

Opinion

J-A12037-25

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

JOHN C. MIRABELLA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : ST. JOSEPH'S UNIVERSITY, AND : No. 1818 EDA 2024 M.W. :

Appeal from the Judgment Entered June 28, 2024 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 190509002

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY SULLIVAN, J.: FILED FEBRUARY 20, 2026

John C. Mirabella (“Mirabella”) appeals from the judgment entered

against him and in favor of Saint Joseph’s University (“SJU”) and M.W.,

(“the victim”) (collectively, “Appellees”), in this action for breach of contract,

defamation, and violations of Pennsylvania’s Unfair Trade Practices and

Consumer Protection Law (“UTPCPL”). 1 For the reasons discussed below, we

affirm.

We take the underlying facts and procedural history in this matter from

our review of the certified record and a previous, federal court decision

involving the parties. In February 2018, Mirabella and the victim met at an

off-campus party. See Doe v. St. Joseph’s University, 2019 WL 13246870,

____________________________________________

1 See 73 P.S. 201-1, et seq. J-A12037-25

at *3 (E.D. Pa. Apr. 23, 2019).2 The two flirted, kissed, exchanged cell phone

numbers, and ultimately left the party together. See id. They returned to

SJU and went to a common room in Mirabella’s dormitory. See id. They

began to kiss, and, while kissing, Mirabella squeezed the victim’s neck hard

enough to frighten her and leave bruises. See id. Mirabella left the room,

and the victim texted a friend seeking assistance. See id. When Mirabella

returned, the victim told him she had to go help a sick friend. See id.

Mirabella walked her out, they kissed, and a friend walked her home. See id.

The following Monday, the victim disclosed the incident to Katie Bean

(“Ms. Bean”), the Assistant Director in SJU’s Office of Student Outreach and

Support, with whom the victim worked part-time. See id. Ms. Bean explained

she was required to report the incident, and she and the victim reported it to

SJU’s Title IX Coordinator Dr. Mary-Elaine Perry (“Dr. Perry”). See id. The

victim filed a sexual misconduct complaint against Mirabella. Dr. Perry drafted

the short complaint, which stated the parties “began making out, which was

fine, then somehow [Mirabella] put his hand on her throat [and] began

squeezing her neck. She felt that she could not breathe.” See id. Dr. Perry

forwarded the complaint to William Bordak (“Mr. Bordak”), Director of SJU’s

Office of Community Standards, and that office began the investigation into

the allegations against Mirabella. See id.

2 The parties and the trial court all cite to this action, acknowledging Mirabella

is the John Doe named in the complaint.

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Beginning in 2015, SJU’s Sexual Misconduct Policy (“SMP”) governed

sexual assault investigations and discipline. See id. at *1. The SMP describes

SJU’s policy on sexual misconduct, the relevant procedures, the resources

available to students, and the possible sanctions for violations. See SJU SMP

at 3.

The SMP defines “sexual assault” as “[h]aving sexual intercourse or

sexual physical contact with another individual by the use or threat of force

or coercion, without consent, or where the individual is incapacitated.” Id. at

6 (emphasis added). Sexual assault includes “any non-consensual sexual

contact, including any improper touching of intimate body parts.” Id. at

7 (emphases added).

The SMP encourages people who believe they have been sexually

assaulted to report such conduct to an on-campus agency, such as SJU’s Title

IX Coordinator. See id. at 16–19. After receiving a report of alleged

misconduct, the Title IX Coordinator reviews the allegations with SJU’s Office

of Community Standards. See id. at 29. If found appropriate, SJU begins an

investigation and assigns an independent investigator to investigate the

allegations. See id. at 30 (emphasis added). Both parties have the right to:

(1) object to the investigator; (2) meet with an SJU staff member one-on-one

to discuss the disciplinary process; (3) retain an advisor; and (4) seek an

accommodation if disabled. See id. at 30–32.

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The duty of the investigator is to speak to the parties and any witnesses,

review any documents/evidence, and prepare a report for SJU opining whether

a preponderance of the evidence supports the alleged violation. See id. at

29–31, 33. If the investigator finds there was a violation, the accused student

is deemed “responsible.” See id. at 33.

If a student is deemed “responsible,” SJU can impose a variety of

sanctions, including expulsion, suspension, probation, writing assignments,

and required programming. See id. at 34. Either party can appeal the

outcome of the investigation to a panel of SJU’s Appeal Board, and the

opposing party can respond. See id. at 35–38. The appealing party has the

chance to review the opposing party’s response but cannot respond to it. Id.

at 37. SJU publicizes the SMP, in part, by requiring incoming undergraduate

students to attend a presentation which teaches them about the SMP and how

to deal with sexual misconduct on campus. See Doe, supra, at *2.

In the instant matter, SJU appointed Elizabeth Malloy (“Attorney

Malloy”), an attorney who had completed more than a dozen Title IX

investigations for SJU, as well as Title IX investigations for other entities, to

investigate the complaint. See id. at *3. Neither party objected to Attorney

Malloy’s appointment. See id.

In early March 2018, Elizabeth Forte (“Ms. Forte”), the Assistant Director

of SJU’s Office of Community Standards, notified Mirabella about the

complaint. See id. Mirabella subsequently received a Notice of Process Letter

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advising him of the filing of the complainant and date of the alleged incident.

See id. Approximately four days later, SJU imposed a contact restriction

between the parties. See id.

The next day, Ms. Forte and Mirabella met; she gave and discussed with

him a checklist summarizing SJU’s disciplinary process and his rights. See id.

Mirabella initialed each paragraph of the checklist. See id. However, in

accordance with SJU policy, Ms. Forte did not provide Mirabella with a copy of

the victim’s complaint, the written charges against him, or otherwise elaborate

on the allegations beyond explaining Mirabella was “rough” with the victim.

See id.3

Attorney Malloy investigated the allegations. See id. at *4. Prior to his

meeting with Attorney Malloy, Mirabella texted her his memories of the

events. See id. Mirabella noted, “I wonder if I was holding her in some way

that felt forceful or aggressive because, although that was not my intent, it

clearly made [her] uncomfortable.” See id. (citation omitted).

In mid-March 2018, Attorney Malloy separately interviewed both

parties. See id. Attorney Malloy explained the victim’s allegations to

Mirabella. See id. In response, Mirabella accepted responsibility for his

actions. Although he did not recall squeezing the victim’s neck, he also stated

3 Although Mirabella suffers from ADHD, he did not request or receive a disability accommodation. See id.

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he did not want to call her a liar. See id. (citation omitted) (quoting

Mirabella’s statement, “I don’t remember squeezing [her] neck. She didn’t

say [she was] uncomfortable. I take full respons[ibility]. I take this as a

learning opportunity. I didn't realize she was leaving [because] of this”).

In addition to interviewing the parties, Attorney Malloy examined the

SMP, photographs of the victim’s bruises, text messages, and notes provided

by both Mirabella and the victim. See id.

In early April 2018, Attorney Malloy submitted her report to SJU, finding

by a preponderance of the evidence Mirabella was responsible for sexual

assault because it was more likely than not he squeezed the victim’s neck

without her consent. See id. Attorney Malloy concluded Mirabella’s actions

fell within the SMP’s definition of sexual assault because it occurred while the

parties were kissing. See id. Attorney Malloy stated that while the victim

consented to kissing, she did not consent to Mirabella’s squeezing her neck.

See id. Attorney Malloy averred because the victim accused Mirabella of

squeezing her neck “to the point where it left bruises,” this was “a singular,

separate act which required [the victim’s] consent.” Id. (citation omitted).

After receipt of Attorney Malloy’s report, SJU placed Mirabella on one

year of disciplinary probation and required him to write a paper and review

online materials addressing sexual assault. See id. SJU forbade Mirabella

from participating in a class trip to Ireland but permitted him to perform an

alternate assignment for grading purposes. See id.

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In mid-April 2018, Mirabella filed an appeal with the Office of Student

Life. See id. The victim, Ms. Malloy, Mr. Bordak, and Ms. Forte all filed

responses to the appeal. See id. Subsequently, Mirabella asked to see the

victim’s response and, for the first time, requested accommodation for his

ADHD. See id. SJU denied Mirabella’s appeal before he reviewed the victim’s

response. See id.

In May 2018, Mirabella filed an action against SJU and the victim in

federal court, claiming violations of Title IX and state law. See id. at *5.

Mirabella also filed a motion for a temporary restraining order (“TRO”), asking

the court to order SJU to allow him to attend his class trip to Ireland. The

federal court denied the TRO. See id. In July 2018, all parties moved for

summary judgment. After delays, the parties renewed the motions for

summary judgment in September 2018. See id. The court granted SJU’s

motion for summary judgment on Mirabella’s Title IX claims but declined to

address the state law claims against either SJU or the victim, dismissing them

without prejudice to their refiling in state court. See id. In so doing the

federal district court stated, “In attacking SJU’s disciplinary proceedings,

[Mirabella] generates more heat than light and effectively asks [the court] to

retry these proceedings.” Id. at *6. Throughout its decision, the federal

district court repeatedly castigated Mirabella for his misstatements of relevant

law and lack of any evidence to support his claims. See id. **6-14. Mirabella

appealed, and the United States Court of Appeals for the Third Circuit denied

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his appeal on the merits. See Doe v. St. Joseph’s University, 832

Fed.Appx. 770 (3d. Cir., Oct. 27, 2020).

In late May 2019, Mirabella filed a motion to transfer his case to the

Philadelphia County Court of Common Pleas. See Trial Court 1925(a) Opinion,

9/23/24, at 2. The case was placed on deferred status pending the Third

Circuit’s decision. See id. In November 2021, the parties stipulated to the

dismissal of Mirabella’s state law claims asserting intentional and negligent

infliction of emotional distress. In October 2023, the trial court ruled on

twenty-one motions in limine pending before it. See id. In one of its rulings,

it removed Mirabella’s UTPCPL claims from the jury’s consideration. See id.

The court held a concurrent jury/bench trial in late October 2023. See

id. On November 6, 2023, the jury returned a unanimous verdict in favor of

SJU and the victim on all claims. See id. The trial court then requested both

parties submit proposed findings of fact on the remaining UTPCPL claim; on

November 29, 2023, the trial court entered a verdict in favor of SJU on the

UTPCPL claim. See id. at 2-3.

On November 20, 2023, Mirabella filed a post-trial motion relating solely

to the jury claims. See id. at 3. Subsequently, SJU and the victim objected

to the motion as untimely filed. See id. Mirabella filed a response arguing

the motion was not untimely filed because the ten-day period did not start

until the prothonotary entered the verdict on the docket. See Mirabella’s

Supplement to Post-Trial Motion, 3/19/24, at 2-3. In early December 2023,

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Mirabella filed a timely post-trial motion relating to the UTPCPL claim. 4 See

Trial Court 1925(a) Opinion, 9/23/24, at 3. Both post-trial motions were

denied by operation of law in mid-March 2024. The victim filed a praecipe for

judgment and the trial court entered judgment in favor of SJU and the victim

on the jury verdict in late March 2024. See id.

Mirabella then filed a notice of appeal related solely to the jury verdict,

and a Rule 1925(b) statement which only raised claims relating to the jury

verdict. See id. at 3. In August 2024, this Court quashed the appeal, finding

Mirabella had waived all claims on appeal because of his untimely post-trial

motion. See Order, 8/5/24, at 2. Mirabella moved for reconsideration,

arguing for the first time that his post-trial motion was timely because this

was a bifurcated trial, and he was not required to file post-trial motions until

after the announcement of the full verdict. See Application for

Reconsideration, 8/13/24, at 5-6.

In the interim, the prothonotary had entered a second judgment on the

UTPCPL claim and Mirabella had filed a second appeal, and a Rule 1925(b)

statement related to the UTPCPL claim. See Trial Court 1925(a) Opinion,

9/23/24, at 3.

4 At oral argument, in response to a question by this Court, Mirabella claimed

he had reasserted in his post-trial motion challenging the non-jury verdict on his UTPCPL judgment the claims made in his initial post-trial motion challenging the jury verdict. We have reviewed the motion in question and determined Mirabella’s statement to be inaccurate. See Mirabella’s Second Motion for Post-Trial Relief, 12/11/23, at 1-6 (unnumbered).

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To resolve the procedural confusion, this Court granted reconsideration,

reinstated the first appeal, vacated the first entry of judgment, dismissed the

first appeal as duplicative of the second appeal, allowed Mirabella to raise

issues relating to both the jury claims and UTPCPL claims in this appeal, and

reserved the issue of the timeliness of his post-trial motions for this panel.

See Order, 8/14/24, at 1-2. The trial court authored a lengthy opinion

addressing all of Mirabella’s claims. See Trial Court 1925(a) Opinion, 9/23/24,

at 1-97.

Mirabella raises eight issues for our review:

QUESTION NO. 1: Whether the trial court erred when it disregarded this Court’s decision in Boehm [v. Univ. of Pa. School of Veterinary Med., 573 A.3d 575 (Pa. Super. 1990)] and refused to instruct the jury as to the ordinary meaning of the undefined contractual terms “fair” and “impartial” applicable to student disciplinary investigations?

QUESTION NO. 2: Whether the trial court committed error in pretrial rulings and subsequent evidentiary rulings regarding the [trial c]ourt’s interpretation of the terms of the contract[?]

QUESTION NO. 3: Whether the trial court erred by ruling [Mirabella] could not introduce evidence, question witnesses, or argue to the jury, about the protections required by Title IX, for a fair disciplinary investigation, which SJU contractually promised, on the basis of collateral estoppel?

QUESTION NO. 4: Whether the trial court erred when it ruled that the jury’s verdict in favor of SJU as to breach of contract claim was not against the weight of the evidence?

QUESTION NO. 5: Whether the trial court erred by denying [Mirabella’s] [m]otion in [l]imine precluding his alleged admission of responsibility?

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QUESTION NO. 6: Whether the trial court erred as a matter of law in finding there was no violation of the [UTPCPL] and/or its non-jury verdict was against the weight of the evidence?

QUESTION NO. 7: Whether the trial court erred by failing to grant [Mirabella’s] [m]otion in [l]imine and/or post-trial motion for judgment notwithstanding the verdict [(“JNOV”)] on the grounds that SJU waived all its affirmative defenses to [Mirabella’s] defamation claim?

QUESTIONS NO. 8: Whether the trial court erred in when it failed to grant [Mirabella] a new trial and/or [JNOV] because the verdict in [the victim’s] favor as to [Mirabella’s] defamation claim, was against the weight of the evidence[?]

Mirabella’s Amended Brief at 3-4 (capitalization, punctuation, and citation

format regularized).

Prior to reaching the merits of Mirabella’s claims, this Court must

determine whether Mirabella preserved any issues for our review. See Bank

of America, N.A. v. Scott, 271 A.3d 897, 903 (Pa. Super. 2022) (holding

appellate courts may determine sua sponte whether issues have been properly

preserved on appeal). As our recitation of the procedural history above

demonstrates, Mirabella appeared to be confused by the dual jury/bench trial

aspect of the case and how it affected post-trial procedures. As a result, he

filed two post-trial motions, one of which is arguably untimely, two Rule

1925(b) statements, and two appeals, one of which was quashed but then

reinstated and absorbed into the instant appeal. Appellees object to this

procedure and seek the dismissal of the instant appeal.

With respect to the timeliness of Mirabella’s first post-trial motion, we

note it is long settled when an appellant files an untimely post-trial motion

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and the trial court declines to address the merits of the motion, the appellant

waives all issues on appeal. See Kennel v. Thomas, 804 A.2d 667, 668 (Pa.

Super. 2002). In this court, Mirabella argues four bases for deeming his first

post-trial motion timely filed: (1) he was not required to file a post-trial

motion on the jury verdict when the UTPCPL claim was still pending; see

Sampathkumar v. Chase Home Fin., LLC, 241 A.3d 1122, 1135 (Pa. Super.

2020) (finding where a case is divided into jury and non-jury phases, an

appellant can wait until disposition on both parts phases before filing post-trial

motions); (2) the victim’s praecipe to enter judgment following the expiration

of 120 days from judgment was premature because the court entered

judgment only on the jury verdict; (3) there is a conflict in Pennsylvania law

regarding whether the ten-day clock for filing post-trial motions begins after

announcement of the verdict in open court, see Mammoccio v. 1818 Market

Partnership, 734 A.2d 23, 27 (Pa. Super. 1999), or when the order is placed

on the docket, see contra, Papalia v. Montour Auto Service Co., 682 A.2d

343, 345 (Pa. Super. 1996); and (4) there is a conflict in Pennsylvania law

regarding this Court’s standard of review of a trial court’s decision to deny

post-trial motions as untimely.

After a thorough review of the record and relevant law, we decline to

find waiver on these bases. Even if Mirabella’s first post-trial motion was

untimely, given the confusion caused by the two separate verdicts, in the

interest of judicial economy we will regard as done what ought to have been

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done and deem Mirabella’s first post-trial motion timely filed. See Zitney v.

Appalachian Timber Products, Inc., 72 A.3d 281, 285 (Pa. Super. 2013).

We next address whether Mirabella preserved any issues for appeal by

filing two separate and voluminous Rule 1925(b) statements. See, e.g.,

Tucker v. R.M. Tours, 939 A.2d 343, 346 (Pa. Super. 2007) (explaining

“[t]he fact [a]ppellants filed a timely [court-ordered] Pa.R.A.P. 1925(b)

statement does not automatically equate with issue preservation.”). Here,

Mirabella’s first Rule 1925(b) statement is more than five pages long and

consists of eighteen paragraphs. His second Rule 1925(b) statement is more

than eleven pages long and consists of thirty-four paragraphs. The

statements are argumentative and repetitive in violation of Pa.R.A.P.

1925(b)(4)(iv). Despite this verbosity, the trial court produced a ninety-

seven-page opinion.

We have stated:

[P]a.R.A.P. 1925(b) provides that a judge entering an order giving rise to a notice of appeal “may enter an order directing the appellant to file of record in the trial court and serve on the judge a concise statement of the errors complained of on appeal [ ].” Rule 1925 also states that “[i]ssues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii). In Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998), our Supreme Court held that “from this date forward, in order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of Matters Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived.” Lord, 719 A.2d at 309. This Court has held that “[o]ur Supreme Court intended the holding in Lord to operate as a bright-line rule, such that ‘failure to comply with the minimal

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requirements of Pa.R.A.P. 1925(b) will result in automatic waiver of the issues raised.’” Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc., 88 A.3d 222, 224 (Pa. Super. 2014) (en banc) (emphasis in original).

U.S. Bank, N.A. v. Hua, 193 A.3d 994, 996-97 (Pa. Super. 2018) (some

citations omitted, emphasis added); see also Greater Erie Indus. Dev.

Corp., 88 A.3d at 225 (“it is no longer within this Court’s discretion to ignore

the internal deficiencies of Rule 1925(b) statement based solely on the trial

court’s decision to address the merits of those untimely raised issues”).

Moreover, “[R]ule 1925 is a crucial component of the appellate process

because it allows the trial court to identify and focus on those issues the

parties plan to raise on appeal.” Brown v. End Zone Inc., 259 A.3d 473,

485 (Pa. Super. 2021) (citation omitted). Therefore, Rule 1925 requires, in

pertinent part, the appellant “concisely identify each error that the appellant

intends to assert with sufficient detail to identify the issue to be raised for the

judge.” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). “The Statement should

not be redundant or provide lengthy explanations as to any error.” Pa.R.A.P.

1925(b)(4)(iv). While raising many assertions of error is not dispositive of

non-compliance, the issues nonetheless must be “non-redundant, non-

frivolous[, and] set forth in an appropriately concise manner” to preserve

them for appeal. Id.

Where an appellant refuses to comply with the letter and spirit of Rule

1925, overwhelming the trial court and subverting our ability to conduct

meaningful review, he waives all issues on appeal. See, e.g., Mahonski v.

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Engel, 145 A.3d 175, 182 (Pa. Super. 2016) (holding where appellant raised

over eighty claims of error, the record supported the trial court’s finding the

“voluminous 1925(b) statements failed to set forth non-redundant,

nonfrivolous issues in an appropriately concise manner” and the claims were

therefore waived); Kanter v. Epstein, 866 A.2d 394, 401 (Pa. Super. 2004)

(holding where the appellants raised more than one hundred issues, they

”deliberately circumvented the meaning and purpose of Rule 1925(b)”

precluding appellate review).

Mirabella comes close to “circumventing the meaning and purpose” of

the Rule. We would be well within our discretion to find he waived all issues

on appeal by filing two such discursive Rule 1925(b) statements. However,

because we do not believe Mirabella deliberately attempted to subvert Rule

1925(b), the trial court managed to address the issues on appeal, and

Appellees briefed those issues, we will, in this instance, excuse Mirabella’s

noncompliance.

Here, as discussed below, Mirabella raised eight issues but offers little

argument to support many of them, fails to point to supporting evidence,

incorrectly views the evidence in the light most favorable to himself, misstates

the evidence, and often misstates the law. Despite these deficiencies, we

endeavor to address the merits of his issues.

Mirabella first challenges the trial court’s jury instructions. See

Mirabella’s Brief at 35-38.

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We review the trial court’s jury instructions for an abuse of discretion or legal error controlling the outcome of the case. A jury charge will be found to be adequate unless, when read in its entirety, the charge confused the jury, misled the jury, or contained an omission tantamount to fundamental error. [I]t must appear that the erroneous instruction may have affected the jury’s verdict. Consequently, the trial court has great discretion in forming jury instructions.

Meyer v. Union R. Co., 865 A.2d 857, 862 (Pa. Super. 2004) (citations and

quotation marks omitted). Trial courts are not required to use the language

of requested jury charges but may utilize different formulations so long as

they “adequately and clearly” cover their subjects. Buckley v. Exodus

Transit & Storage Corp., 744 A.2d 298, 306 (Pa. Super. 1999). The court

may refuse to submit for the jury’s consideration a point for charge that is not

strictly in accordance with the facts in evidence or the law in the case. Id.

Further, a party who does not make an objection in the trial court to the

given jury instructions cannot complain about the instructions on appeal. See

Broxie v. Household Finance Co., 372 A.2d 741, 743 (Pa. 1977); Harding

v. Consolidated Rail Corp., 620 A.2d 1185, 1194 (Pa. Super. 1993). “[A]ll

objections to the charge to the jury shall be taken before the jury retires.”

Pa.R.Civ.P. 227(b); see also Passarello v. Grumbine, 87 A.3d 285, 292

(Pa. 2014). If a party fails to raise a specific objection to a jury instruction,

he waives the objection and cannot raise it in a subsequent appeal. See Cruz

v. Northeastern Hospital, 801 A.2d 602, 610–11 (Pa. Super. 2002). We

will not consider a claim on appeal which a party did not call to the trial court's

attention at a time when the court could have corrected any error. See Keffer

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v. Bob Nolan's Auto Service, Inc., 59 A.3d 621, 645 (Pa. Super. 2012).

“[O]ne must object to errors, improprieties or irregularities at the earliest

possible stage of the adjudicatory process to afford the jurist hearing the case

the first occasion to remedy the wrong and possibly avoid an unnecessary

appeal to complain of the matter.” Id. (citation omitted).

Mirabella argues the trial court erred when it refused to define the terms

“fair” and “impartial” to the jury in accordance with this Court’s decision in

Boehm, 573 A.3d at 582, and the Third Circuit’s decision in Doe v. Univ. of

the Sciences, 961 F.3d 203 (3d. Cir. 2020).5 See Mirabella’s Brief at 35-38.

Our review of the record demonstrates that Mirabella waived this claim.

Mirabella did not request the trial court define the terms “fair” and “impartial”

in his proposed points for charge. See Mirabella’s Proposed Points for Charge,

10/17/23, at 1-3.6 Additionally, Mirabella did not object to the charge as

given. See id. at 175, 181. Thus, Mirabella waived his first issue, and we will

not further discuss it. See Cruz, 801 A.2d at 610–11.

5 “[W]e note that federal district court decisions, as well as those by federal

Courts of Appeal, are not binding on Pennsylvania courts.” Sullivan v. Werner Company, 253 A.3d 730, 745 (Pa. Super. 2021) (citation omitted).

6 Although the charging conference was not transcribed, when the trial court

discussed on the record, at length, what had taken place during the charging conference, there was no mention of this issue and the only dispute Mirabella raised concerned a proposed jury charge on conditional privilege. See N.T., 11/3/23, at 2-13.

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In his second issue, Mirabella contends the trial court erred in various

pre-trial and mid-trial evidentiary rulings which it made concerning the

interpretation of the terms of the contract. See Mirabella’s Brief at 38-49.

The standard of review for challenges to rulings on motions in limine is

as follows:

A motion in limine is used before trial to obtain a ruling on the admissibility of evidence. It gives the trial judge the opportunity to weigh potentially prejudicial and harmful evidence before the trial occurs, thus preventing the evidence from ever reaching the jury. A trial court’s decision to grant or deny a motion in limine is subject to an evidentiary abuse of discretion standard of review.

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (internal

citations and quotations omitted). Additionally, to be admissible, evidence

must be relevant; it must have “any tendency to make a fact more or less

probable than it would be without the evidence[.]” Pa.R.E. 401. Even if

relevant, evidence may be excluded if its probative value is outweighed by,

inter alia, the danger of unfair prejudice, confusing the issues, or misleading

the jury. See Pa.R.E. 403; see also Parr, 109 A.3d at 696.

Concerning contract interpretation, the Pennsylvania Supreme Court

has stated:

[t]he fundamental rule in contract interpretation is to ascertain the intent of the contracting parties. In cases of a written contract, the intent of the parties is the writing itself. Under ordinary principles of contract interpretation, the agreement is to be construed against its drafter. When the terms of a contract are clear and unambiguous, the intent of the parties is to be ascertained from the document itself. When, however, an ambiguity exists, parol evidence is admissible to explain or clarify or resolve the ambiguity, irrespective of whether the ambiguity is

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patent, created by the language of the instrument, or latent, created by extrinsic or collateral circumstances. 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.

Ins. Adjustment Bureau, Inc. v. Allstate Ins. Co., 905 A.2d 462, 468-69

(Pa. 2006) (internal citations and quotation marks omitted).

Mirabella argues the trial court erred when it denied his pre-trial

motions in limine to: (1) find as a matter of law the factual findings of SJU’s

investigation did not meet the SMP’s definition of “sexual assault” (see

Mirabella’s Brief at 38-42), and (2) find as a matter of law the term “official”

applied to the investigator (see id. at 42-44). Mirabella also asserts the trial

court did not rule as a matter of law that SJU’s investigation did not comply

with the SMP because the investigator did not interview witnesses or exam

relevant documents (see id. at 44-49).7

The trial court determined Mirabella’s claim that the SJU investigation’s

findings did not meet the SMP’s definition of sexual assault did not merit relief.

It stated:

[Attorney] Malloy determined that the kissing between [the victim and Mirabella] was mutually consensual. However, [Attorney] Malloy also found that [Mirabella’s] placement of his hands around [the victim’s] neck and squeezing was a separate act that required a separate consent from the kissing. [The ____________________________________________

7 Mirabella fails to cite to the record and does not specify which of the many

motions in limine he filed are addressed in this issue; thus, we, like the trial court, see Trial Court 1925(a) Opinion, 9/23/24, at 21-35, are forced to guess which motions are at issue.

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victim] stopped kissing [Mirabella] when he started squeezing her neck. [The victim] freezing directly implicates the excerpted definitions of consent, which state that absence of resistance cannot be interpreted as consent for an activity. [Attorney] Malloy further noted that the throat is not typically considered an “intimate body part,” but because the squeezing of the neck occurred while the students were kissing, it constituted general “sexual contact.”

One aspect that [Mirabella’s] counsel focused on during testimony was intent to cause harm. However, the SMP does not require intent to cause harm for a [r]espondent to be found responsible for a violation of the Policy. Moreover, the slide from the presentation that [c]ounsel focused on did not include intent to cause harm as an element only that the act was intentional. [Attorney] Malloy clarified that she did not apply this definition of misconduct, as she based her determination on the SMP. She explained that her understanding was that the act had to be “intentional as opposed to bumping into somebody in an elevator.”

Here, . . . [Mirabella’s] motion in limine was premature because there were genuine issues of fact relating to whether [Attorney Malloy’s] findings fell within the definition of “sexual assault.” However, by the end of trial, it was clear that [Mirabella] was not entitled to judgment as a matter of law because [Attorney Malloy] was able to satisfactorily explain how her findings fell within the definitions of the SMP.

Trial Court Opinion, 6/24/24, at 20-21 (most quotation marks and all

footnotes omitted).

The trial court also rejected Mirabella’s claim that the term “official” as

used in the SMP applied to the investigator. It explained:

[t]he SMP does not define the terms “Official” or “Investigator.” However, a simple, plain word reading of the [SMP] makes the distinction clear. In its motion in limine ruling relating to this issue), the [trial c]ourt specifically pointed to Section V.B.5 of the SMP.

This section begins:

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Upon completion of the investigation, the Investigator shall report to the appropriate University official(s). If during the course of the investigation other conduct that might be a violation of this or other University policies is discovered or identified, this additional conduct must be reported to the appropriate University official(s) and may be subject to a separate process. . . .

In this section, the role of an Investigator is distinguished from that of University officials twice. However, this is not the only portion of the SMP that distinguishes between the two. Two pages earlier, a paragraph in Section V.B.2 relating to Advisors reads:

The University may remove or dismiss an Advisor who becomes disruptive or who does not abide by the restrictions on their participation, as determined by the person conducting the meeting (university official and/or investigator).

Once again, the drafters of the SMP drew a distinction drawn between a university official and an investigator, as there would be no need to include “and/or investigator” if the term “investigator” were already subsumed under the umbrella term “university official.”

In short, although the exact definition of each position is ambiguous, and therefore best left for the [j]ury as factfinders to determine, the distinction between the positions is not ambiguous. See Com. v. UPMC, 208 A.3d 898 (Pa. 2019). To be clear, the [t]rial [c]ourt did not intrude on the [j]ury’s purview by ruling on what each position entailed. It did, however, rule that there was an obvious and unambiguous distinction between the two terms, based on a plain reading of SJU’s SMP.

Id. at 38-39 (record citations and some emphases omitted, other emphases

in original).

Lastly the trial court concluded Attorney Malloy had examined witnesses

and reviewed documents in accordance with the SMP. It noted:

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[Attorney] Malloy conducted interviews with [the victim] and [Mirabella]. Both students stated that they were alone in the room when they were kissing. [Mirabella] specifically acknowledged that they went to the room on the 3rd floor of [his dormitory] because his roommates were in his room. There were no witnesses to the kissing or the squeezing. In his pre-trial deposition, [Mirabella] stated that he did not know of any witnesses or evidence overlooked in the investigation, and he reaffirmed this at trial. [Attorney] Malloy did not interview any students other than [the victim] and [Mirabella], because no one else had any firsthand knowledge about what occurred in the room.

During her meeting, [the victim] acknowledged that she texted a friend their safe word to create an excuse to leave. She provided these text messages to [Attorney Malloy] three days after their meeting. [Attorney] Malloy later reviewed these text messages, the photographs of [the victim’s] neck shortly after the encounter with [Mirabella], notes provided by [Mirabella], and the [c]omplaint prepared by Dr. Perry.

*****

Given that the encounter at issue in [the victim’s] complaint was witnessed by no other person, and there was little physical evidence, the [t]rial [c]ourt determined there was sufficient evidence to conclude that [Attorney Malloy] carried out her duty to interview all witnesses and reviewed all evidence available to her. As such, the motion in limine was properly denied. When viewing the trial evidence in the light most favorable to SJU as the verdict winner, the record and reasonable inferences from [Attorney Malloy’s testimony sufficiently support the [j]ury’s verdict.

Id. at 23-24 (footnotes omitted).

We have thoroughly reviewed the record and the law and discern no

abuse of discretion on the part of the trial court.

First, although Attorney Malloy and the trial court stated to the contrary,

our Supreme Court has held that the neck is a “sexual or other intimate part[]”

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under Pennsylvania’s indecent assault statute, 18 Pa.C.S.A. § 3126. See

Commonwealth v. Gamby, 283 A.3d 298, 314 (Pa. 2022); see also

Commonwealth v. Luis Tepo-Martinez, --- A.3d ---, 2025 WL 3560510, at

*3 (Pa. Super., Dec. 12, 2025) (citing Gamby and affirming Tepo-Martinez’s

conviction for indecent assault where he kissed and touched the victim’s neck,

an intimate part of the body, without her consent). Given this case law, it is

clear that Mirabella’s non-consensual squeezing of the victim’s neck while

kissing violated the SMP. The SMP defines “sexual assault” as “[h]aving sexual

intercourse or sexual physical contact with another individual by the use or

threat of force or coercion, without consent, or where the individual is

incapacitated.” SMP at 6 (emphasis added). The SMP includes “any non-

consensual sexual contact, including any improper touching of

intimate body parts.” Id. at 7 (emphasis added).

Moreover, our review of the plain language of the SMP accords with the

trial court’s interpretation, as it clearly distinguishes between an official and

an investigator but does not define either role. See Trial Court Opinion,

6/24/24, at 38-39. Thus, the trial court correctly found the definition of both

roles a question of fact for the jury, while whether an investigator was an

official was a question of law to be determined by the trial court. See Ins.

Adjustment Bureau, Inc., 905 A.2d at 468-69 (Pa. 2006); see also Kalili

v. State Farm Fire and Casualty Company, 330 A.3d 396, 403 n.3 (Pa.

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Super. 2024) (“The interpretation of the terms of a contract are a matter of

law for the court, not a question of fact for the jury”).

Lastly, while Mirabella now vaguely identifies various witnesses and

documents he believes Attorney Malloy should have investigated, he does not

point to any place in the record where this information could be found. It is

not this Court’s function to pour through the voluminous record in this case

looking for the facts to substantiate his claim. See Commonwealth v.

Mulholland, 702 A.2d 1027, 1034 n.5 (Pa. Super. 1997) (“In a record

containing thousands of pages, this court will not search every page to

substantiate a party’s incomplete argument”). Mirabella’s second claim does

not merit relief.

In his third issue, Mirabella maintains the trial court erred in ruling he

could not introduce evidence or make any reference to Title IX. See

Mirabella’s Brief at 49-52. Mirabella complains this ruling “was the equivalent

to summary judgment as to [his] claims that SJU breached its contractual

promise to comply with Title IX.” Id. at 49. Mirabella argues that the federal

court’s dismissal of his Title IX complaint is not the equivalent of a ruling that

the school complied with Title IX. See id. at 50.

Mirabella’s claim implicates principles of collateral estoppel.

[C]ollateral estoppel . . . presents a question of law. Like all questions of law, our standard of review is de novo and our scope of review is plenary.

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Collateral estoppel is valid if, (1) the issue decided in the prior adjudication was identical with the one presented in the later action, (2) there was a final judgment on the merits, (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. . . . [A]ll four elements must be present.

Gregg v. Ameriprise Financial, Inc., 195 A.3d 930, 935-36 (Pa. Super.

2018) (internal citations, quotation marks, and brackets omitted, brackets

added).

The trial court explained:

[i]n this case, [SJU] moved to preclude evidence relating to Title IX under the doctrines of res judicata and collateral estoppel. Although the [trial c]ourt’s ruling during the [m]otions [h]earing . . . focused on collateral estoppel, all elements of both doctrines are met when considering [the United States District Court for the Eastern District of Pennsylvania (“District Court)]’s summary judgment ruling. First, the issue is identical: whether [SJU] violated Title IX in its application of the [SMP] and its investigation into the allegations against [Mirabella]. Second, all parties and their capacities in the federal case and the present case were identical, as the case at bar was simply a jurisdictional shift of the case after the federal ruling. Third, the causes of action were identical, as [Mirabella] based his breach of contract claims in part on a Title IX violation, in particular a “Dear Colleague Letter.” Fourth, the issue of Title IX resulted in a final judgment on its merits, as [the District Court] issued a 28-page order, thoroughly addressing each of the three motions for summary judgment brought by all parties. Finally, [Mirabella], as the party against whom collateral estoppel was raised, was the plaintiff in the federal phase of this case, and he had a full and fair opportunity to litigate the Title IX issue in the [] district court and on appeal to the [United States Court of Appeals for the] Third Circuit.

Moreover, the issue of compliance with Title IX was addressed by the federal court and the federal appellate court while the case was pending within [the trial court]. The [trial c]ourt’s decision to preclude Title IX maintained consistency and

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the expectations of the parties throughout the case. It also served to streamline the process, as the state level court did not need to rehear arguments on a federal issue that had already had thorough arguments and received a decision from a federal appellate court.

Trial Court 1925(a) Opinion, 9/23/24, at 47-48.

After a thorough review of the record and applicable law, we conclude

the trial court was correct in its legal conclusion that Mirabella was collaterally

estopped from presenting evidence with respect to Title IX. Moreover,

Mirabella’s argument on this issue is undeveloped.

We note that except for two brief citations to boilerplate regarding Title

IX, Mirabella neither discusses the elements of Title IX nor cites any pertinent

law to support his argument. See Mirabella’s Brief at 49-52. Instead,

Mirabella asserts that a finding he failed to prove SJU violated Title IX is not

the same as a finding SJU complied with Title IX. See Mirabella’s Brief at 50.

However, Mirabella was the plaintiff in the federal action and failed to satisfy

his burden to prove a Title IX violation. Thus, we see no discrepancy and

reject Mirabella’s argument.

The sole case Mirabella cited in support of his argument the trial court

erred as a matter of law in granting the motion in limine is Doe v. Franklin

and Marshall College, 2024 WL 3937264 (E.D. Pa., Aug. 26, 2024). As an

unpublished federal district court case, Franklin and Marshall, is, at most,

citable for any persuasive authority it offers. See Sullivan v. Werner Co.,

253 A.3d at 745. Moreover, in Franklin and Marshall, the district court

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granted summary judgment in favor of the defendant on the plaintiff’s Title

IX claims but denied summary judgment on the breach of contract claims,

which included a specific claim that the defendant breached its contract

with plaintiff by violating the portion of its sexual misconduct policy

which promised compliance with Title IX. See Franklin and Marshall,

2024 WL 3937264, at *8-*11, *13. There is no indication that either party

raised or argued collateral estoppel in that case. While Mirabella claims one

of his breach of contract claims was identical to that on which the Franklin

and Marshall court denied summary judgment, he does not cite where that

claim can be found in the certified record, and we have been unable to locate

it. Mirabella’s third claim does not merit relief.

In his fourth claim, Mirabella contends the jury’s verdict that SJU did not

breach its contract with him was against the weight of the evidence. See id.

at 53-55.

We recognize:

The decision to grant or deny a motion for a new trial based upon a claim that the verdict is against the weight of the evidence is within the sound discretion of the trial court. Thus, the function of an appellate court on appeal is to review the trial court’s exercise of discretion based upon a review of the record, rather than to consider de novo the underlying question of the weight of the evidence. An appellate court may not overturn the trial court’s decision unless the trial court palpably abused its discretion in ruling on the weight claim. Further, in reviewing a challenge to the weight of the evidence, a verdict will be overturned only if it is so contrary to the evidence as to shock one’s sense of justice.

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A trial court’s determination that a verdict was not against the interest of justice is [o]ne of the least assailable reasons for denying a new trial. A verdict is against the weight of the evidence where certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

Tong-Summerford v. Abington Memorial Hospital, 190 A.3d 631, 659

(Pa. Super. 2018) (internal citations and quotation marks omitted).

Here, Mirabella avers the jury was wrong in finding the evidence showed

the investigation and disciplinary proceeding was fair and impartial and thus,

SJU did not breach its contract with Mirabella. See id. at 54.

The trial court found the jury’s verdict was not against the weight of the

evidence. See Trial Court 1925(a) Opinion, 9/23/24, at 70-71. It specifically

noted Mirabella’s own testimony “he was unaware of any additional procedural

rights he was entitled to but did not receive.” Id. at 70. The court also

pointed to Mirabella’s initials on the pre-investigation checklist which advised

of his right to reasonable accommodations of his disability, his right to an

advisor/and or counsel, his right to object to a particular investigator and to

seek clarifications from the Office of Community Standards regarding the

process. See id. at 70-71. The court stated Mirabella failed to avail himself

of any of these rights. See id. The court concluded Mirabella could not now

complain that SJU breached its contract with him when he made the choice

not to avail himself of offered protections and therefore, the jury’s verdict was

not against the weight of the evidence. See id. at 71.

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Mirabella does not cite to any law to support his contention the verdict

was against the weight of the evidence. His claim, in its entirety, is based

upon viewing the evidence in the light most favorable to himself and asking

this Court to reweigh the evidence. This we cannot do. Our review

demonstrates the record supports the trial court’s analysis. The court did not

“palpably abuse its discretion” in denying Mirabella’s weight of the evidence

claim. Tong-Summerford, 190 A.3d at 659. Mirabella’s fourth issue does

not warrant relief.

In his fifth issue, Mirabella maintains the trial court erred in denying his

motion in limine to preclude the admission of his acceptance of responsibility

during the litigation. See Mirabella’s Brief at 55-57. This admission occurred

during the March 2018 interview with Attorney Malloy when Mirabella stated

he did not recall squeezing the victim’s neck but did not want to call her a liar

and took responsibility for his actions.

As noted above, we review a challenge to a motion in limine for an abuse

of discretion. See Parr, 109 A.3d at 690. To be admissible evidence must

be relevant, but even relevant evidence may be excluded if it is unfairly

prejudicial. See Pa.R.E. 401, 402, 403; see also Parr, 109 A.3d at 696.

Mirabella contends at the time he made the statement he was unaware

this interview was the equivalent of a hearing, and, in any event, his

statements did not constitute an admission of guilt. See Mirabella’s Brief at

55-56. Mirabella states the trial court’s admission of his statements to

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Attorney Malloy was the equivalent of violating his Fifth Amendment right

against self-incrimination. See id. at 57.

In its discussion, the trial court states Mirabella sought to preclude

Attorney Malloy’s testimony on this issue on the basis that it was hearsay.

See Trial Court Opinion, 6/24/24, at 41-43. The trial court does not mention

or discuss any claim that the admission of Mirabella’s statement violated his

Fifth Amendment rights or that it did not constitute an admission of guilt. See

id.

In his brief, Mirabella abandons the hearsay claims. Moreover, he does

not cite to the record or explain where he preserved the claims regarding the

Fifth Amendment or that the statement did not constitute an admission of

guilt. We have been unable to locate any place where Mirabella preserved

this argument. It is well and colorfully stated that “[j]udges are not like pigs,

hunting for truffles buried in briefs-or, for that matter, in the thousands of

pages of record that accompany them.” Langman v. Keystone Nat’l Bank

& Trust Co., 672 F.Supp.2d 691, 694 (E.D. Pa. 2009) (citation omitted). It

is further settled that an appellant cannot raise a new legal theory for the first

time on appeal. See Pa.R.A.P. 302(a). Thus, Mirabella waived his fifth issue. 8

8 In any event, Mirabella’s undeveloped argument on this issue would not merit relief. Mirabella’s reliance on Commonwealth v. Rivera, 296 A.3d 1141, 1155 (Pa. 2023), is misplaced. In Rivera, our Supreme Court engaged in a lengthy review of Pennsylvania law concerning the admission of testimony concerning a criminal defendant’s pre-arrest and post-arrest silence. See (Footnote Continued Next Page)

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In his sixth issue, Mirabella challenges both the sufficiency and weight

of the evidence underlying the trial court’s finding that SJU did not violate the

UTPCPL. See Mirabella’s Brief at 57-63.

Our standard of review in non-jury trials is to assess whether the findings of facts by the trial court are supported by the record and whether the trial court erred in applying the law. Upon appellate review the appellate court must consider the evidence in the light most favorable to the verdict winner and reverse the trial court only where the findings are not supported by the evidence of record or are based on an error of law. Our scope of review regarding questions of law is plenary.

Robins v. Robins, 338 A.3d 184, 188 (Pa. Super. 2025) (citation omitted).

As discussed above:

this Court’s review of a weight claim is a review of the trial court's exercise of discretion, not of the underlying question of whether we believe that the verdict is against the weight of the evidence. Moreover, a new trial will be granted on the basis that [a] verdict is against the weight of the evidence only when the verdict is so contrary to the evidence as to shock one’s sense of justice.

Krishnan v. Cutler Group, Inc., 171 A.3d 856, 881 (Pa. Super. 2017)

(internal citations, quotation marks, and some brackets omitted).

The UTPCPL is Pennsylvania’s consumer protection law and seeks to prevent unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce. . . . The purpose of the UTPCPL is to protect the public from unfair or deceptive business practices. Our Supreme Court has stated

Rivera, 296 A.3d at 1150-58. Even if we were to assume, arguendo, that this criminal case has some bearing on a private university’s internal investigation procedures, Mirabella has failed to cite to any portion of the record wherein he invoked any right to silence. Instead, as discussed above, he was advised of the various rights offered by SJU in the SMP and chose not to invoke them. Thus, even if not waived, this claim is meritless.

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courts should liberally construe the UTPCPL in order to effect the legislative goal of consumer protection.

The UTPCPL provides a private right of action for anyone who suffers any ascertainable loss of money or property as a result of an unlawful method, act or practice. . .. The UTPCPL also contains a catchall provision at 73 P.S. § 201–2(4)(xxi). . . . In 1996, the General Assembly amended the UTPCPL and revised Section 201–2(4)(xxi) to add deceptive conduct as a prohibited practice. The current catchall provision proscribes fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.

Nevertheless, to establish a claim under the UTPCPL, a plaintiff must still plead and prove justifiable reliance and causation, because the legislature never intended [the] statutory language directed against consumer fraud to do away with the traditional common law elements of reliance and causation.

American Express Bank, FSB v. Martin, 200 A.3d 87, 94-95 (Pa. Super.

2018) (internal quotation marks and citation omitted, emphasis added).

“The UTPCPL provides a private cause of action to any person who, as a

result of conduct that the UTPCPL prohibits, suffers any ascertainable loss of

money or property, real or personal. To bring a private cause of action under

the UTPCPL, a plaintiff must show that he justifiably relied on the defendant’s

wrongful conduct or representation and that he suffered harm as a result of

that reliance.” McCabe v. Marywood University, 166 A.3d 1257, 1263 (Pa.

Super. 2018) (internal quotation marks and citations omitted).

Mirabella argues the trial court erred in failing to find violations of

Section 201-2(4)(xxi) (“the catchall provision”) of the UTPCPL. See

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Mirabella’s Brief at 57-63. Mirabella also contends the verdict was against the

weight of the evidence. See id. at 63.

The trial court concluded Mirabella failed to show any deceptive acts by

SJU and in his proposed findings of facts misrepresented testimony and

exhibits and failed to prove SJU: (1) misrepresented the definition of “sexual

assault;” (2) failed to fully explain its disciplinary process; and (3) failed to

conduct a fair and impartial investigation. See Trial Court Opinion, 9/23/24,

at 36. Critically, the court also found Mirabella “failed to prove that he suffered

any ascertainable loss.” Id. The court noted that, while Mirabella claimed he

suffered economic loss by having to pay for the Spring 2018 semester and

transferring to a more expensive college, it was his choice both to transfer

and to choose a more expensive school. See id. at 36-37. The court pointed

out that the Spring tuition was not an ascertainable loss because Mirabella

was able to attend classes, all disciplinary proceedings were scheduled around

his academic courses, and with respect to the missed trip to Ireland, the school

gave him an alternate assignment, so missing the trip would not harm his

grade. See id. at 37. Moreover, Mirabella himself could not recall if his

parents paid for the trip or if it was covered by his scholarship. Id.

Our review of the record supports the trial court’s findings. Mirabella’s

argument consists of a lengthy list of purportedly deceptive practices engaged

in by SJU. See Mirabella’s Brief at 57-63. However, Mirabella fails to cite to

any evidence which supports his claim, views the fact in the light most

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favorable to himself, and relies on bald conclusions that he suffered an

ascertainable loss. This is simply insufficient to meet his burden of proof under

the UTPCPL. See American Express Bank, FSB, 200 A.3d at 94-95;

McCabe, 166 A.3d at 1263.

As to the weight of the evidence, the trial court sat as the finder of fact

with respect to the UTPCPL claim, as such, its verdict is entitled to the same

weight as that of a jury. See Fletcher-Harlee Corp. v. Szymanski, 936

A.2d 87, 92-93 (Pa. Super. 2007). The trial court determined that Mirabella

had not met the elements necessary to prove his UTPCPL claim and thus, its

verdict was not against the weight of the evidence. See Trial Court Opinion,

9/23/24, at 39-43. We have no basis to disturb this conclusion. Mirabella’s

sixth claim does not merit relief.

In his seventh claim, Mirabella argues the trial court in denying his

motion in limine and/or denying his motion for judgment notwithstanding the

verdict (“JNOV”) with respect to SJU’s affirmative defense of conditional

privilege in response to his defamation claim. See Mirabella’s Brief at 63-66.

As discussed above, we review the denial of a motion in limine for abuse

of discretion. See Parr, 109 A.3d at 690. With respect to motions for JNOV:

[o]ur standard[s] of review when considering the motions for a directed verdict and [JNOV] are identical. We will reverse a trial court’s grant or denial of [JNOV] only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

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There are two bases upon which [JNOV] can be entered; one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in [its] favor. Whereas with the second, the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012)

(citations omitted).

Moreover, where a defendant did not request a binding charge on the

jury, move for a directed verdict orally or in writing at the close of evidence

at trial, or move for a compulsory nonsuit, he waives the ability to seek JNOV.

See Phelps v. Caperoon, 190 A.3d 1230, 1247 (Pa. Super. 2018).

However, if the trial court fails to find waiver and addresses the merits of the

issue, we are not required to find waiver. See Capital Care Corp. v. Hunt,

847 A.2d 75, 84 (Pa. Super. 2004) (declining to find waiver where a party

failed to move for a directed verdict, sought JNOV in a post-trial motion, and

the trial court addressed the claim as presented in the post-trial motion).

The Pennsylvania Rules of Civil Procedure provide:

[e]xcept as provided by subdivision (b), all affirmative defenses including but not limited to the defenses of accord and satisfaction, arbitration and award, consent, discharge in bankruptcy, duress, estoppel, failure of consideration, fair comment, fraud, illegality, immunity from suit, impossibility of performance, justification, laches, license, payment, privilege, release, res judicata, statute of frauds, statute of limitations, truth and waiver shall be pleaded in a responsive pleading under the heading “New Matter”. A party

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may set forth as new matter any other material facts which are not merely denials of the averments of the preceding pleading.

Pa.R.Civ.P. 1030(a) (emphases added). However, this Court has held that a

party need not specifically name an affirmative defense “if facts sufficient to

constitute the defense are pled.” Village of Four Seasons Ass’n, Inc. v.

Elk Mountain Ski Resort, Inc., 103 A.3d 814, 821 (Pa. Super. 2014)

(citation omitted).

The elements of a defamation claim in Pennsylvania require a plaintiff

to prove: (1) the defamatory character of the communication; (2) its

publication by the defendant; (3) its application to the plaintiff; (4) the

understanding by the recipient of its defamatory meaning; (5) the

understanding by the recipient of it as intended to be applied to the plaintiff;

(6) special harm resulting to the plaintiff from its publication; and (7) abuse

of a conditionally privileged occasion. See 42 Pa.C.S.A. § 8343(a); Joseph

v. Scranton Times L.P., 129 A.3d 404, 424 (Pa. 2015). When the issue is

properly raised by the plaintiff, the defendant has the burden of proving the

following elements: (1) the truth of the defamatory communication, (2) the

privileged character of the occasion on which it was published, and/or (3) the

character of the subject matter of defamatory comment as of public concern.

See 42 Pa.C.S. § 8343(b); Joseph, 129 A.3d at 424-25.

“An appellate court will address only those issues properly presented

and developed in an appellant’s brief as required by our Rules of Appellate

Procedure.” Pa.R.A.P. 2101. Where defects in a brief impede our ability to

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conduct meaningful appellate review, we may dismiss the appeal entirely or

find certain issues to be waived.” Sephakis v. Pa State Police Bureau of

Records and Identification, 214 A.3d 680, 686 (Pa. Super. 2019) (internal

quotation marks and citation omitted).

Mirabella devotes the majority of his brief argument on this issue to

challenging the trial court’s assertion SJU was not required to raise conditional

privilege in its answer and new matter. See Mirabella’s Brief at 64-66.

However, he only devotes two bare sentences (and fails to cite to any cases),

to support his contention that he made out the elements of a defamation

claim. See id. Mirabella states:

[t]he record from the trial before the [trial] court from the testimony of SJU officials that communicated that [Mirabella] choked another student and committed sexual assault, which the school entered into his academic record and its impact upon him easily satisfied the prima facie elements of a defamation per se claim and was all that was necessary to prevail against a defendant without a legal defense.

Id. at 65-66 (record citation omitted).

The trial court acknowledged that affirmative defenses are supposed to

be pleaded in a new matter. See Trial Court Opinion, 9/23/24, at 85.

However, it cited to Village of Four Sesons Ass’n, Inc., supra, for the

proposition that “if sufficient facts to constitute the defense are pled in the

answer, there is no need to raise the defense separately in a new matter.”

Id. The court recognized SJU did not separately plead the defense but noted

that, in his complaint, Mirabella alleged SJU’s communications were not

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covered by privilege and SJU specifically denied that assertion in its answer.

See id. In any event, the trial court maintains any error was harmless.

Mirabella failed to develop any claim that the trial court erred in finding

any error harmless. His claim that an official investigation by a university in

and of itself constitutes defamation per se is both factually and legally

unsupported. We therefore find he waived this claim, and his seventh issue

does not merit relief.

Because we agree with the trial court that any error was harmless, we

do not address the question of whether SJU sufficiently pled the affirmative

defense of conditional privilege in their answer and new matter.

In his eighth and final issue, Mirabella contends the trial court erred in

not granting him a new trial on the basis that the verdict was against the

weight of the evidence. See Mirabella’s Brief, at 66-68.

Our Supreme Court has explained:

While a jury’s verdict and damages award are generally insulated from challenge, the grant of a new trial may be required to achieve justice in those instances where the original trial, because of taint, unfairness, or error, produces something other than a just and fair result, which is the principle goal of judicial proceedings. . .. [A] jury verdict may be set aside as inadequate when it appears to have been the product of passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. Where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice a new trial should be awarded. [The Court] cautioned that it was within the province of the jury to assess the worth of the testimony and to accept or reject the estimates given by the witnesses, and if the verdict bears a reasonable resemblance to

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the proven damages, it is not the function of the court to substitute its judgement for the jury’s. . ..

Mader v. Duquesne Light Co., 241 A.3d 600, 612-13 (Pa. 2020) (internal

citations and quotation marks omitted).

Our standard of review regarding a trial court’s denial of a motion for a

new trial is limited: “The power to grant a new trial lies inherently with the

trial court and we will not reverse its decision absent a clear abuse of discretion

or an error of law which controls the outcome of the case.” Maya v. Johnson

& Johnson, 97 A.3d 1203, 1224 (Pa. Super. 2014) (citation omitted). First,

we determine if an error occurred, and if so, ascertain “whether the error

resulted in prejudice necessitating a new trial[.]” Czimmer v. Janssen

Pharmaceuticals, Inc., 122 A.3d 1043, 1051 (Pa. Super. 2015) (citation

omitted). Second, we ascertain whether the error affected the verdict.

Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super. 2011). The

“[c]onsideration of all new trial claims is grounded firmly in the harmless error

doctrine[.]” Id. (citation omitted).

Mirabella maintains the jury’s verdict in favor of the victim on his

defamation claim was against the weight of the evidence. See Mirabella’s

Brief at 66-68. Mirabella claims that the victim’s report was defamation per

se because the bruises on her neck did not appear until 36 hours later and

Mirabella alleged they were caused by an intervening event. See id. at 66.

Viewing the evidence in the light most favorable to himself, Mirabella argues

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the jury should have credited the testimony of his expert that the bruises

could not have been caused by Mirabella’s assault. Id. at 67.

The trial court disagreed, finding the jury’s verdict was not against the

weight of the evidence. See Trial Court Opinion, 9/23/24, at 71-72.

Mirabella’s argument on this issue is undeveloped. Mirabella fails to

discuss the elements of defamation, fails to explain what evidence supports

his claim that the victim defamed him, and fails to point to any legal support

for his contention that her actions constituted defamation per se. See

Mirabella’s Brief at 66-68. Instead, Mirabella only discusses his expert’s

testimony that squeezing the victim’s neck could not have caused her bruising.

However, “it was in the province of the jury to assess the credibility of [the

victim] and the other testifying witnesses and decide the weight such

testimony should be given.” Koziar v. Rayner, 200 A.3d 513, 521 n.10 (Pa.

Super. 2018). “Assessments of credibility and conflicts in evidence are for the

trial court to resolve; this Court is not permitted to reexamine the weight and

credibility determinations or substitute our judgments for those of the

factfinder.” Gutteridge v. J3 Energy Group, Inc., 165 A.3d 908, 916 (Pa.

Super. 2017) (en banc) (internal citation omitted). Mirabella’s final claim does

not merit relief.9

9 At oral argument, this Court questioned Mirabella about the factual and legal

bases underlying his defamation claim against the victim. Counsel initially stated he was not prepared to address this issue at argument. When pressed, (Footnote Continued Next Page)

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For the reasons discussed above, we find Mirabella’s claims are waived

and/or meritless. Accordingly, we affirm the judgment.

Judgment affirmed.

Date: 2/20/2026

counsel was unable to discuss any law which supported his position that it is defamation per se when a victim reports a sexual assault to the appropriate authorities or texts a friend a “safe word” when she needs assistance. We wish to make abundantly clear that Mirabella’s argument is both frivolous and dangerous.

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