J-A27012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
VENEESA, INC., JOSEPH VENTRESCA : IN THE SUPERIOR COURT OF AND KATHLEEN VENTRESCA : PENNSYLVANIA : Appellants : : : v. : : : No. 3512 EDA 2018 THOMAS STEVENSON, TERRI : STEVENSON J. DANIEL BRETT & CO., : P.C., J. DANIEL BRETT, CPA MICHAEL : LOSTRACCO, CPA :
Appeal from the Order Dated October 29, 2018 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2007-07016
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: FILED MAY 27, 2020
Veneesa, Inc., (“Veneesa”) and Joseph and Kathleen Ventresca
(collectively, “Appellants”),1.appeal from the October 29, 2018 order denying
Appellants’ post-trial motions following a jury trial against J. Daniel Brett, CPA,
J. Daniel Brett & Co., P.C. (the “Firm”) (collectively, the “Brett Defendants”),
and Michael LoStracco, CPA, for misappropriation of funds, negligence and
related claims. After careful review, we affirm.
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1Veneesa, Inc. is a construction company incorporated in Pennsylvania, which was founded by Joseph Ventresca. See Trial Court Opinion, 1/18/19, at 1. Mr. Ventresca and his wife, Kathleen, are the majority shareholders. Id. J-A27012-19
The underlying civil action was the culmination of eleven years of
litigation as a result of the actions of: (1) Veneesa president and minority
shareholder Thomas Stevenson;2 (2) Veneesa secretary, treasurer,
comptroller, and minority shareholder Mr. LoStracco; and (3) the Brett
Defendants, which employed Mr. LoStracco. The Brett Defendants, along with
Mr. LoStracco, also served as accountants for Veneesa.
2 Following a September 24, 2018 pre-trial conference, Mr. Stevenson conceded his civil liability in the amount of his restitution order and was released from the case. Immediately thereafter, Mr. Stevenson’s attorney was released from further representation of Mr. Stevenson prior to trial. See Order, 9/25/18, at ¶ 1. On October 1, 2018, the trial court issued an order memorializing this agreement, and removing Mr. Stevenson from both the caption and the verdict slip. See Order, 10/1/18. After that order effectively removed Mr. Stevenson from the case for the jury, the trial court denied Appellants’ motion for partial summary judgment with respect to Mr. Stevenson. See Order, 10/2/18. Indeed, Appellants’ brief acknowledges that Mr. Stevenson and the allegations regarding his conduct are of no further consequence to this matter. See Appellants’ brief at 13 n.3 (“[Mr.] Stevenson remains in much of the discussion of issues here to give context . . . . It is only rulings pertaining to [Mr. LoStracco] and the Brett Defendants that remain the focus of this appeal.” (emphasis added)). Accordingly, we will limit our assessment in this appeal to those parties actually implicated by Appellants’ arguments: Mr. LoStracco and the Brett Defendants. Id.
Mr. Stevenson’s brief was filed in the style of a motion to dismiss the appeal as to Mr. Stevenson. See Brief in the Nature of Application to Dismiss Appeal, 9/11/2019, at 2-6 (arguing that Mr. Stevenson is not a proper party to this appeal). The relief requested in Mr. Stevenson’s brief is denied without prejudice to his ability to file a proper application for relief. See Pa.R.A.P. 123 (stating that the proper procedure for seeking relief before the Superior Court is the filing of a separate “written application”).
Terri Stevenson, Mr. Stevenson’s wife, is listed as a party in this appeal as well. However, the trial court’s October 1, 2018 order similarly released her from the litigation in exchange for not taking legal action against Appellants. See Order, 10/1/18. As such, we will not discuss her further in this writing.
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These parties were named in an August 24, 2007 complaint filed by
Appellants, which described an embezzlement scheme spanning years. Mr.
Stevenson was alleged to have misappropriated the funds and assets of
Veneesa for his own personal benefit. See Complaint, 8/24/07, at ¶¶ 15-22.
He was joined and aided in this effort by Mr. LoStracco, who was alleged to
have prepared paperwork and tax returns to obfuscate the misappropriations.
Id. at ¶¶ 23-29. The Brett Defendants were accused of failing “to exercise
reasonable care,” and of not recognizing or stopping the criminal behavior of
Mr. Stevenson and Mr. LoStracco. Id. at ¶¶ 30-33. In relevant part,
Appellants’ complaint alleged fourteen separate counts and prayers for relief. These counts levelled claims for conversion against all but the Brett Defendants; breach of fiduciary duty and fraud against Mr. LoStracco and Mr. Stevenson; negligence against Mr. LoStracco and the Brett Defendants; and unjust enrichment, civil conspiracy, and civil RICO [claims] against all Defendants. The Complaint also alleged a putative count of “Agency” against J. Daniel Brett & Co., P.C., based on an averment that the Firm was vicariously liable for the alleged tortious conduct of Mr. Brett and Mr. LoStracco.
Trial Court Opinion, 1/18/19, at 1-2 (cleaned up). Mr. LoStracco filed
counterclaims alleging, inter alia, conversion against the Ventrescas.
Both Mr. Stevenson and Mr. LoStracco also faced criminal prosecution,
which culminated in negotiated pleas entered on March 4, 2013. Mr.
Stevenson pled guilty to conspiracy to receive stolen property and theft by
unlawful taking, and agreed to pay $516,696.32 in restitution. Mr. LoStracco
pled nolo contendere to conspiracy to commit theft by deception and theft by
failure to make a required disposition of funds, and agreed to pay $152,000
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in restitution. Both pleas “specified that restitution would be modified to
conform to the outcome of the civil litigation.” Id.
During the extensive motions practice among the parties, Appellants
sought partial summary judgment with respect to their claims against Mr.
Stevenson, Mr. LoStracco, and the Brett Defendants based on the pleas
entered by Mr. Stevenson and Mr. LoStracco.3 See Appellants’ Motion for
Partial Summary Judgment, 7/15/18, at ¶¶ 1-132. It was denied. See, e.g.,
Decision and Order, 9/18/18, at 4 (“Plaintiffs, any parties, witnesses, and
attorneys are precluded from offering [Mr. LoStracco’s] nolo contendere plea
as [an] admission or proof of the facts in this case . . . .”).
After settlement with the Stevensons, the remaining parties proceeded
to a seven-day jury trial that took place from September 24 through October
2, 2018. Following the close of Appellants’ case, the trial court granted
Appellees’ request for a nonsuit on all counts except civil conspiracy, fraud,
and negligence as to Mr. LoStracco, Mr. Brett, and the Firm. Id. at 3.
Thereafter, the trial court dismissed all counterclaims, with the exception of
Mr. LoStracco’s allegations against the Ventrescas concerning conversion. Id.
Ultimately, the jury found in favor of Appellants with respect to their
negligence claims against Mr. LoStracco, Mr. Brett, and the Firm. On all other
remaining counts, the jury found in favor of Appellees. The jury concluded
3 Appellants also sought to admit evidence of Mr. LoStracco’s nolo contendere plea by filing a motion in limine.
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that Mr. LoStracco was acting as an agent of both Veneesa and the Firm during
his negligent conduct. Finally, the jury found in favor of Mr. LoStracco with
respect to his conversion claim against Appellants. Id. The jury assessed
damages, as follows: (1) $76,000 against Mr. LoStracco; (2) $38,000 against
each of the Brett Defendants; and (3) $26,700 against the Ventrescas. Id.
On October 9, 2018, Appellants timely filed a motion for post-trial relief,
requesting, inter alia, that trial court: (1) assess joint and several liability
against the Brett Defendants, Mr. LoStracco, and Mr. Stevenson in the amount
of $641,996.32, under Pennsylvania law in effect prior to June 28, 2011;4 (2)
grant judgment notwithstanding the verdict (“JNOV”) or a new trial as to their
claim of conversion against Mr. LoStracco, pursuant to his nolo contendere
plea and the doctrine of collateral estoppel; and (3) grant JNOV, or a new trial,
establishing that Mr. LoStracco was only an agent of the Firm, and not both
the Firm and Veneesa during the course of his negligence. See Appellants’
Motion for Post-Trial Relief, 10/9/18, at ¶¶ 25-37, 62-93. Aside from requests
for pre-judgment and post-verdict interest, attorneys’ fees, and costs, no
other relief was requested in this filing.
After entertaining post-trial motions and responses from all parties, the
trial court granted Appellants’ request for joint and several liability, but limited
4 To reach this figure, Appellants combined the amounts awarded by the jury with Mr. Stevenson’s civil liability, which was stipulated to by the parties. See Appellants’ Motion for Post-Trial Relief, 10/9/18, at ¶ 29.
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the order to Mr. LoStracco and the Brett Defendants for the total sum awarded
by the jury’s verdict, e.g., $152,000. See Order, 10/29/18, at ¶ 1. The trial
court denied the remainder of Appellants’ requests for relief.
That same day, Appellants filed a second petition styled as a
“Countermotion for a New Trial,” which largely repeated the claims for relief
set forth in their original post-trial motion while attempting to re-litigate
various aspects of Mr. LoStracco’s liability. See Appellants’ Countermotion for
a New Trial, 10/29/18, at ¶¶ 4-23 (“[T]he court has gone too far in protecting
a criminal convicted of theft and conspiracy . . . .”). On November 25, 2018,
Appellants sought reconsideration of the trial court’s October 29, 2018 order.
While Appellants’ motions were pending, they filed a timely notice of
appeal from the trial court’s October 29, 2018 post-trial order. The next day,
the trial court denied Appellants’ countermotion and request for
reconsideration. Both Appellants and the trial court have complied with
Pa.R.A.P. 1925.
Appellants have raised the following claims for our consideration:
Question 1: Did the trial court err as a matter of law by denying partial summary judgment to Appellants given Mr. Stevenson’s and Mr. LoStracco’s prior convictions for conspiracy and theft of Appellants’ assets and the judicial admission of an agency relationship with the Brett Defendants?
Question 2: Did the trial court abuse its discretion and err as a matter of law by failing to impose collateral estoppel, and by limiting or excluding Appellants’ use of appropriate evidence, sua sponte dismissing Appellants’ conversion claim against Mr. LoStracco (but allowing Mr. LoStracco’s conversion claim against
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Appellants to proceed), and ultimately by denying Appellants’ motion for a new trial?
Question 3: Did the trial court abuse its discretion and err as a matter of law by refusing to apply joint and several liability against all Appellees under prevailing Pennsylvania law for cases commenced in 2007?
Question 4: Did the [trial] court err as a matter of law by denying Appellants’ JNOV regarding the jury verdict that found [Mr. LoStracco] committed “professional [accounting] negligence” when employed part-time with a construction company (Veneesa), instead of exclusively with the Firm?
Appellants’ brief at 11-12 (cleaned up).
Appellants’ first claim is styled as a challenge to the trial court’s ruling
with respect to Appellants’ motion for partial summary judgment. Such an
order is typically considered interlocutory and unappealable, particularly
where the question presented is one of fact. See Yorty v. PJM
Interconnection, LLC, 79 A.3d 655, 660 (Pa.Super. 2013); see also City
of Philadelphia v. Cumberland County Bd. of Assessment Appeals, 81
A.3d 24, 44 (Pa. 2013) (“Summary judgment may be entered only where the
record demonstrates there remain no genuine issues of material fact, and
it is apparent that the moving party is entitled to judgment as a matter of
law.” (emphasis added)). Appellants also preserved this issue in their post-
trial motions, in which they requested a JNOV with respect to their claims of
conversion against Mr. LoStracco pursuant to theories of collateral estoppel
incorporating his nolo contendere plea. See Appellants’ Motion for Post-Trial
Relief, 10/9/18, at ¶¶ 62-82. Therefore, we will review Appellants’ first claim
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under that rubric. In this context, “[w]e may reverse only in the event the
trial court abused its discretion or committed an error of law that controlled
the outcome of the case.” Sears, Roebuck & Co. v. 69th Street Retail Mall,
L.P., 126 A.3d 959, 967 (Pa.Super. 2015).
Instantly, Appellants’ arguments on this point arise under the doctrine
of collateral estoppel, which “precludes relitigation of an issue determined in
a previous action” so long as certain requirements are met. See Office of
Disciplinary Counsel and Kiesewetter, 889 A.2d 47, 51 (Pa. 2005). This
case implicates the “offensive” iteration of collateral estoppel, which “seeks to
foreclose the defendant from litigating an issue the defendant has previously
litigated unsuccessfully in an action with another party.” Id.
Collateral estoppel applies if: (1) the issue decided in the prior case is
identical to the one presented in the latter case; (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 in the prior case; (4) the party or person privy to the
party against whom the doctrine is asserted had a full and fair opportunity to
litigate the issue in the prior proceeding; and (5) the determination in the
prior proceeding was essential to the judgment. Office of Disciplinary
Counsel v. Duffield, 644 A.2d 1186, 1189 (Pa. 1994).
Appellants assert that a JNOV should have been granted as to
Appellants’ claims of conversion against Mr. LoStracco upon the basis of his
nolo contendere plea. See Appellants’ brief at 33-39. Specifically, Appellants
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argue that Mr. LoStracco’s offenses were “virtually identical” to their civil
claims for relief, thus obviating any dispute of material fact. Id. (citing
Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996)).
As the trial court noted in its Rule 1925(a) opinion, Appellants have
significantly misapprehended the state of Pennsylvania law governing nolo
contendere pleas. See Trial Court Opinion, 1/18/19, at 8 (noting that
Appellants have committed an “elementary error” by “failing to distinguish
between guilty pleas and nolo contendere pleas”). Mr. LoStracco’s nolo
contendere plea does not support the application of collateral estoppel in the
civil context. A plea of nolo contendere has the equivalent effect of a guilty
plea in the context of a criminal case. However, such a plea “is an implied
confession of guilt only, and cannot be used against the defendant as an
admission in any civil suit for the same act.” Eisenberg v. Comm. Dep’t of
Public Welfare, 516 A.2d 333, 335 (Pa. 1986); see also Commonwealth
v. Moser, 999 A.2d 602, 606 (Pa.Super. 2010) (“[T]he difference between a
plea of nolo contendere and a plea of guilty is that, while the latter is a
confession binding upon [the] defendant in other proceedings, the former has
no effect beyond the particular case.”). Stated simply, Appellants’ position is
in direct conflict with existing Pennsylvania law.5
5 Appellants have also cited the Commonwealth Court’s holding in Strain v. Commonwealth, 784 A.2d 845 (Pa.Cmwlth. 2001), in support of their arguments, which notes that “our Supreme Court has upheld the use of a
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Appellants reliance upon our Supreme Court’s holding in Shaffer in
support of their argument is inapt. In Shaffer, the defendant was convicted
at trial, and our High Court held that he was collaterally estopped from
contesting his liability in a civil action brought by the victim. See Shaffer,
supra at 874 (“It is well established that a criminal conviction collaterally
estops a defendant from denying his acts in a subsequent civil trial.”). The
Supreme Court offered no discussion of nolo contendere pleas in its analysis.
As such, Shaffer is readily distinguishable (particularly in light of our Supreme
Court’s parallel holding in Eisenberg).6
Overall, Appellants have offered no compelling argument for the
enlargement of the holding in Shaffer, or the distinguishment of Eisenberg.
Consequently, we conclude that the evidence of Mr. LoStracco’s nolo
contendere plea was inadmissible to establish his liability in Appellants’ civil
conviction entered on a plea of nolo contedere as evidence in a subsequent civil matter where it was the fact of the conviction, not the plea, that was the operative fact relied upon.” Id. at 848 (citing Eisenberg v. Dep’t of Public Welfare, 516 A.2d 333, 336-37 (1986)). This is a correct statement of Pennsylvania law, but it is inapplicable to the instant case. Here, Appellants are solely concerned with admitting evidence of Mr. LoStracco’s alleged admission of guilt. To be clear, the holding in Strain explicitly acknowledges such an action is not permissible. Id. (noting that a nolo contendere plea is designed “to protect a criminal defendant from use of the plea as an admission of the defendant’s guilt or liability in a civil proceeding”).
6 Appellants’ reliance upon Folino v. Young, 568 A.2d 171, 173-74 (Pa. 1990), is also inapposite pursuant to the same distinguishment. Specifically, the underlying criminal conviction in Folino was the result of a jury trial, and the opinion contains no discussion of nolo contendere pleas. Id.
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case. Accord Eisenberg, supra at 335, Moser, supra at 606. The trial
court did not abuse its discretion or err in refusing to grant a JNOV against
Mr. LoStracco on this ground.7 No relief is due.
Although inartfully drafted,8 we discern Appellants’ second issue to be a
challenge to the trial court’s evidentiary ruling that excluded certain portions
of a report prepared by Dennis Houser, CPA (the “Houser Report”), who
conducted forensic accounting for the Bucks County District Attorney’s Office
as part of the prosecution of Mr. LoStracco. As argued by Appellants, this
issue implicates an order issued by the trial court which provided, in pertinent
part, as follows: “Plaintiffs, any parties, witnesses and attorneys are not
precluded from offering or referring to [the Houser Report] provided that no
reference shall be made to the District Attorney’s investigation, conclusions,
reports, or resulting criminal charges and proceedings.” Order, 8/15/18, at ¶
6 (emphasis in original).
7 To the extent that Appellants’ arguments are addressed to the negligence of Mr. LoStracco, we note that Appellants prevailed at trial on those claims. See Verdict Slip, 10/2/18, at 1-4. As such, Appellants were not aggrieved by the trial court’s denial of summary judgment as to those claims of negligence. See Pa.R.A.P. 501.
8 To the extent that Appellants seek to raise additional issues under this section of their brief, we find those arguments either: (1) duplicative of issues discussed elsewhere in Appellants’ brief; or (2) waived for lack of substantive development pursuant to Pa.R.A.P. 2119(a). See Communications Network Int’l, Ltd. v. Mullineaux, 187 A.3d 951, 965 (Pa.Super. 2018) (holding that an appellant waives claim of error where the appellant offers “no controlling authority” in support of argument).
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We review a trial court’s evidentiary decisions under an abuse of
discretion standard. See Hassel v. Franzi, 207 A.3d 939, 950 (Pa.Super.
2019). “[W]here the evidentiary ruling turns on a question of law, our review
is plenary.” Buckman v. Verazin, 54 A.3d 956, 960 (Pa.Super. 2012).
Specifically, Appellants’ line of argument cites Pa.R.E. 404(b)(2) exhaustively
for the proposition that portions of the Houser Report allegedly documenting
the criminal prosecution of Mr. LoStracco were admissible.9 See Pa.R.E.
404(b)(2) (“This evidence may be admissible for another purpose, such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.”).
Unfortunately, Appellants’ discussion of this claim is disorganized, and
fails to: (1) indicate which portions of the Houser Report should have been
admitted at trial, or are even relevant to this claim; (2) identify the non-
propensity purpose(s) that this evidence would have arguably been admissible
for under Rule 404(b)(2); and (3) enumerate any specific prejudice suffered
by Appellants as a result of this ruling. Rather, Appellants have presented
unadorned averments that the trial court’s evidentiary ruling somehow
impeded their ability to adduce testimony at trial. See Appellants’ brief at 44
(“By prohibiting or severely limiting available [Rule] 404(b)(2) evidence,
practically prohibiting use of the Houser Report, examining or cross-examining
9 See Appellants’ brief at 44 (describing the Houser Report as the “quintessential source of [Rule] 404(b)(2) evidence”).
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witnesses as allowed under Pennsylvania law was hamstrung.”). These
statements are coupled with block quotations of testimony presented without
context. Throughout this discussion, Appellants also misrepresent the trial
court’s ruling as having excluded the Houser Report in its entirety.
Setting aside these substantive deficiencies, our review of the certified
record indicates that Appellants never sought the admission of the Houser
Report pursuant to Pa.R.E. 404(b)(2) prior to taking an appeal to this Court.10
See Appellants’ Motions In Limine, 8/27/18, at ¶¶ 8-28 (requesting admission
of the Houser Report only for impeachment purposes); Appellants’
Memorandum, 4/30/19, at 16-19 (omitting Houser Report from Rule
404(b)(2) motion).11 Our review of the remainder of the certified record has
uncovered no preservation of this claim, and Appellants have not stated that
such a request was ever made to the trial court. Thus, this claim is waived
due to Appellants’ failure to raise it in a timely fashion. See Commonwealth
v. Thomas, 194 A.3d 159, 166 (Pa.Super. 2018) (“In order to preserve an
evidentiary objection for purposes of appellate review, a party must interpose
10 In relevant part, the only Rule 404(b)(2) evidence referenced by Appellants were records and transcripts pertaining to Mr. LoStracco’s disciplinary hearings before the Board of Accountancy. Beyond mentioning them in passing, Appellants do not substantively discuss these records and transcripts in their explanation of their second claim. See Appellants’ brief at 46.
11 These are the only places of preservation with respect to Rule 404(b)(2) arguments that are noted in the relevant portion of Appellants’ brief. See Pa.R.A.P. 2117(c)(2), Appellants’ brief at 21-22.
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a timely and specific objection in the trial court.”); see also Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the
first time on appeal.”).
Appellants’ third claim concerns the trial court’s post-trial ruling on joint
and several liability.12 Under pre-amendment law, the Restatement (Second)
of Torts governed, which provides that “[i]f the tortious conduct of each of
two or more persons is a legal cause of harm that cannot be apportioned, each
is subject to liability for the entire harm, irrespective of whether their conduct
is concurring or consecutive.” Neal v. Bavarian Motors, Inc., 882 A.2d
1022, 1027 (Pa.Super. 2005) (citing Restatement (Second) of Torts § 879).
“‘Whether liability for harm to a plaintiff is capable of apportionment is a
question of law for the court, not a question of fact for the jury.’” Id. “On
questions of law, our standard of review is de novo and our scope of review is
plenary.” Straub v. Cherne Industries, 880 A.2d 561, 566 (Pa. 2005).
At the outset, we note that Appellants’ discussion of this issue suggests
a misunderstanding of the trial court’s action. Although Appellants represent
that the trial court denied the imposition of joint and several liability outright,
12 Pennsylvania has now eliminated joint and several liability in most cases through the legislative enactment of the Fair Share Act. See 42 Pa.C.S. § 7102. However, Appellants’ claims accrued prior to the June 28, 2011 effective date of that Act. As such, Pennsylvania’s pre-amendment joint and several liability paradigm applies in this case. See Rost v. Ford Motor Co., 151 A.3d 1032, 1044 n.7 (Pa. 2016). We also note that the parties agreed by stipulation that pre-Act liability law would govern.
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the trial court actually granted Appellants’ post-trial request with respect to
Mr. LoStracco and the Brett Defendants:
1. Plaintiff’s Motion for joint and several liability is GRANTED IN PART. Liability is joint and several to Plaintiffs as awarded by the jury on the count of negligence against Defendants Michael LoStracco for $76,000, J. Daniel Brett for $38,000; and J. Daniel Brett & Co., P.C. for $38,000; and DENIED otherwise.
Order, 10/29/18, at ¶ 1 (emphasis in original). As we understand it from
Appellants’ motion practice, this issue actually concerns the trial court’s
alleged error in failing to include Mr. Stevenson’s restitutionary sum in the
joint and several liability of Mr. LoStracco and the Brett Defendants. See
Appellants’ Motion for Post-Trial Relief, 10/9/18, at ¶ 29, Appellants’ Rule
1925(b) Statement, 12/19/18, at 5.
Overall, Appellants do not dispute that Mr. Stevenson was released from
the litigation in exchange for conceding his civil liability in the amount of his
restitutionary order. See Appellants’ brief at 27 (“In the civil case, just prior
to trial, [Mr. Stevenson] decided not to challenge the civil claims against him
and the parties all agree that the Verdict Slip should read, ‘It has already been
determined that Defendant Thomas Stevenson is liable to [Appellants] in the
amount of $516,696.32.”). As a memorialization of this agreement among
the parties, the trial court filed an order providing as follows:
IT IS HEREBY ORDERED, this 1st day of October, 2018, Thomas and Terri Stevenson will not appear on the caption or on the Verdict Slip and a statement will be made to the Jury indicating that in a prior hearing, Thomas Stevenson had been Ordered to pay restitution to [Appellants] in the amount of $516,696.32.
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Order, 10/1/18 (emphasis in original). Thereafter, Mr. Stevenson did not
participate in the proceedings as a party-defendant.
Consistent with the parties’ agreement, the verdict slip contained the
following statement on its first line: “It has already been determined that
Defendant Thomas Stevenson is liable to [Appellants] in the amount of
$516,696.32.” Verdict Slip, 10/2/18, at 1. Beyond this advisement, Mr.
Stevenson was not listed as a party-defendant on any section of the verdict
slip. Id. at 1-4. Consequently, the jury did not render any finding concerning
his liability, nor assign any damages attributable to his actions.
Appellants’ discussion of this issue is threadbare, and includes a bald
assertion that the “damages due to [Appellants] as a result of [Appellees’]
torts totaled $641,996.32.” Appellants’ brief at 53. There is no discussion of
the nature of Mr. Stevenson’s stipulated liability, the legal effect of his
omission from the verdict slip, or any refutation of the trial court’s reasoning.
Id. Appellants’ only substantive argument is the rote application of a list of
factors that have previously been identified under Pennsylvania law as
relevant to this inquiry, which include: (1) the identity of a cause of action
against each of two or more defendants; (2) the existence of a common, or
like duty; (3) whether the same evidence will support an action against each;
(4) the single, indivisible nature of the injury to the plaintiffs; (5) identity of
the facts as to time, place, or result; (6) whether the injury is direct and
immediate, rather than consequential; and (7) responsibility of the defendants
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for the injuria as distinguished from the same damnum. See Neal, supra at
1027 (quoting Voyles v. Corwin, 441 A.2d 381, 383 (Pa.Super. 1982)).
Appellants’ discussion of these factors makes mere passing mention of Mr.
Stevenson, while engaging in a protracted discussion of the agency
relationship between the Brett Defendants and Mr. LoStracco. See Appellants’
brief at 53-55. These tangential assessments do not support the central thesis
of Appellants’ third claim.
In contrast, the trial court presented the following cogent rationale for
declining to include Mr. Stevenson and his restitutionary amount in its joint
and several liability holding:
Thomas Stevenson conceded to his civil liability based upon his conduct in the amount of $516,696.32 to [Appellants]. While the [trial court] notes this amount mirrors his restitution Order from 2012, the [trial court] does not know specifically how this sum was calculated, nor the specific components of loss it addressed with relation to [Mr.] Stevenson’s conduct. There is no basis in the record for the [trial court] to conclude that the negligence identified by the jury as to the other Defendants concerned the same items of loss [Appellants] sustained from Thomas Stevenson’s prior criminal conduct. [Mr.] Stevenson was not an accountant and did not work as an owner or employee of [the Firm] as did the other Defendants. Furthermore, [Mr.] Stevenson was not alleged by [Appellants] to have committed any manner of professional negligence or malpractice as set forth against the Brett Defendants and [Mr.] LoStracco.
Trial Court Opinion, 1/18/19, at 11.
Overall, we are persuaded by the trial court’s reasoning. Appellants
have not presented a compelling argument, and we discern no legal error in
the trial court’s conclusions. Accordingly, Appellant’s third claim fails.
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Appellants’ fourth claim seeks reversal of the trial court’s order refusing
to enter a JNOV with respect to the jury’s finding that Mr. LoStracco was
employed at Veneesa at the time of his “professional negligence.” See
Appellant’s brief at 56. “We will reverse a trial court’s grant or denial of a
[JNOV] only where we find an abuse of discretion or an error of law that
controlled the outcome of the case.” Pearson v. Philadelphia Eagles, LLC,
220 A.3d 1154, 1158 (Pa.Super. 2019).
On the verdict slip, the jury determined that Mr. LoStracco was
employed by both the Firm and Veneesa when he acted negligently. See
Verdict Slip, 10/2/18, at 3. Although this finding is arguably favorable to
Appellants’ claims,13 they nonetheless sought a JNOV that Mr. LoStracco was
not employed by Veneesa during that time frame. See Appellants’ Motion for
Post-Trial Relief, 10/9/18, at ¶¶ 83-93.
We discern that Appellants are claiming that it was somehow legally
impossible for Mr. LoStracco to be found guilty of negligence while he was
13 In its Rule 1925(a) opinion, the trial court opined that Appellants could not raise this issue on appeal because they were not “aggrieved” by the jury’s finding. Although we ultimately find Appellants’ argument waived on different grounds, we share the trial court’s incredulity concerning this line of argument. See In re Estate of Pendergrass, 26 A.3d 1151, 1154 (Pa.Super. 2011) (“Although a prevailing party may disagree with the trial court’s legal reasoning or findings of fact, the prevailing party’s interest is not adversely affected by the trial court’s ultimate order because the prevailing party was meritorious in the proceedings below.”) (citing Pa.R.A.P. 501). In relevant part, Appellants have not explained how this holding is detrimental to them.
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found to also be employed by Veneesa. See Appellants’ brief at 56
(“Professional negligence as a CPA can only occur while under the auspices of
a CPA firm not a construction company that in no way provides accounting
services.”). Across one page of argument, Appellants have cited no legal
authority in support of this claim.14 Accordingly, Appellants have waived this
issue for failure to develop their discussion. See Pa.R.A.P. 2119(a),
Communications Network Int’l, Ltd. v. Mullineaux, 187 A.3d 951, 965
(Pa.Super. 2018) (holding that an appellant waives claim of error where they
offer “no controlling authority”).
Order affirmed. Case remanded. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 5/27/2020
14 Appellants’ lone citation in this section is to our Supreme Court’s holding in In re Adoption of S.A.J., 838 A.2d 616, 621 (Pa. 2003), in support of a non-sequitur discussion of the agency relationship between Mr. LoStracco and the Brett Defendants. Our review of this case reveals no on-point guidance.
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