J-A28019-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENNIS WARONSKY : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : AMERIPRISE FINANCIAL, INC., : No. 412 WDA 2020 AMERIPRISE FINANCIAL SERVICES, : INC., RIVERSOURCE LIFE : INSURANCE COMPANY AND : KENNETH J. ROCK :
Appeal from the Judgment Entered March 17, 2020 In the Court of Common Pleas of Allegheny County Civil Division at No(s): G.D. 01-007921
BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.
MEMORANDUM BY MURRAY, J.: FILED DECEMBER 11, 2020
Dennis Waronsky (Appellant) appeals from the judgment entered in
favor of Ameriprise Financial, Inc., Ameriprise Financial Services, Inc.,
Riversource Life Insurance Company, and Kenneth J. Rock (Rock)
(collectively, “Defendants”). The parties’ dispute concerns two “universal” life
(UL) insurance policies that Defendants sold to Appellant in 1988 and 1994.
After careful review, we affirm.
By means of background, UL insurance policies differ from standard
whole life insurance policies. The major distinctions are that UL policies have
an investment savings component and flexible premiums. These policies are
comprised of the savings component and cost of insurance (COI). In sum, J-A28019-20
collected premium payments in excess of the COI accumulate within the
cash/savings component. UL policyholders earn interest on the accumulated
sums in the savings component, at a variable interest rate dependent on
current market conditions.1 Importantly, however, UL policies also contain a
specified “guaranteed” interest rate (guaranteed rate), which provides a floor
on how low the interest rate can go.2 It is advantageous for UL policyholders
to receive the highest guaranteed rate, as the rate increases the amount of
cash that accumulates in the savings component of the policy.
Here, Appellant initially purchased a “Flexible Premium Adjustable” UL
policy from Rock, an insurance agent employed by Defendants, in 1988 (1988
policy). This policy provided for a life insurance benefit of $100,000 (as well
as other benefits to Appellant’s wife not relevant to this appeal). Appellant
paid a monthly premium of $100 for the policy. The guaranteed rate was
4.5%. Before the parties executed the policy documents, Rock showed
Appellant a written illustration (1988 illustration), which contained hand-
written explanatory notes by Rock. This was Rock’s standard practice, which
he did to inform Appellant of the details of the 1988 policy. Rock also
____________________________________________
1 The Pennsylvania Insurance Department (PID) must approve UL policies, and their interest rates, before the policies may be sold.
2 Depending on current market conditions, the actual interest rate earned on a UL policy can be higher than the guaranteed rate. Over the years in which Appellant maintained his UL policies, he often earned interest above the guaranteed rate.
-2- J-A28019-20
presented Appellant with an individually tailored “Disclosure Statement” (1988
Disclosure Statement), which essentially detailed the same information as the
1988 illustration.
For the next several years, Appellant maintained the 1988 policy under
the terms discussed above. In November 1993, Defendants sent an internal
communication to all of their insurance sales agents located in Pennsylvania,
including Rock.3 This communication stated that the PID had authorized
Defendants to reduce the guaranteed rate on all new sales of UL policies to
4%. The interest reduction applied to UL policies purchased after January 1,
1994 (the “1994 interest reduction”).
On December 8, 1993 (1993 meeting), Appellant met with Rock to
discuss a new UL insurance policy that Defendants had offered to Appellant to
replace the 1988 policy. The new proposed policy would increase Appellant’s
death benefit from $100,000 to $150,000. During the 1993 meeting, Rock
again showed Appellant a new written illustration, with hand-written notes, to
inform Appellant of the details of the new proposed policy. This illustration
stated that the guaranteed rate on the proposed policy at that time was 5%.
Although no agreement was reached at the 1993 meeting, Rock and Appellant
agreed to meet again to discuss the matter further.
3Both Rock and an employee of Ameriprise conceded that this communication would have been sent to Rock.
-3- J-A28019-20
On February 2, 1994, Appellant and Rock met again (1994 meeting),
and executed the new UL policy (1994 policy), which increased Appellant’s
death benefit from $100,000 to $150,000, with the same monthly premium
of $100. The accumulated cash in the 1988 policy savings account “rolled
over” into the 1994 policy. This contract, like the 1988 policy, consisted of a
written policy application and a Disclosure Statement (1994 Disclosure
Statement).
The 1994 Disclosure Statement contained a blank section, which
required Defendants to specify both the guaranteed rate and “Guaranteed
Period of Coverage.” Rock did not personally enter this information on the
form; rather, his administrative assistant (Rock’s assistant), did so by hand.
The 1994 Disclosure Statement provided that the guaranteed rate was 5%,
which was inconsistent with the 1994 interest reduction. In actuality, because
Appellant had applied for the 1994 policy after January 1, 1994, he received
a guaranteed rate of 4%, not 5%, pursuant to the 1994 interest reduction,
since he applied for the 1994 policy after January 1, 1994. Further, Rock’s
assistant specified in the 1994 Disclosure Statement that the guaranteed
period of Appellant’s coverage was to age 95. Notably, however, the 1988
Disclosure Statement stated that the guaranteed period of Appellant’s
coverage was to age 75. After Appellant initiated this action, Defendants
alleged that the above inconsistencies were not fraudulently made; rather,
they were mere clerical errors by Rock’s assistant.
-4- J-A28019-20
After Defendants approved the executed 1994 policy, Rock sent
Appellant a copy of the policy documents, including the 1994 Disclosure
Statement. Appellant eventually received the documents in the mail, and filed
them for safekeeping.4 Aside from this mailing, Rock did not separately advise
Appellant that the guaranteed rate of 4% he received under the 1994 policy
differed from the guaranteed rate of 5% that Defendants represented
Appellant would receive: (a) at the 1993 meeting; and (b) in the 1994
Disclosure Statement.
In 2004, Appellant surrendered the 1994 policy. At that time, Appellant
had paid Defendants approximately $19,600 in premiums toward the 1988
and 1994 policies. When Appellant surrendered the 1994 policy, Defendants
sent him a check for approximately $13,000, representing the cash value
accumulated in the savings account component of the policy.
Appellant initiated this action on April 20, 2001 by writ of summons.
Appellant filed a complaint several years later, in September 2008. Appellant
alleged 3 causes of action: fraudulent misrepresentation (FM), negligent
misrepresentation (NM), and violation of the Unfair Trade Practices and
4Appellant testified that he did not thoroughly read the 1994 policy documents because he trusted Rock to fill them out correctly and consistent with his representations at the 1993 meeting. We note that a purchaser of non- commercial life insurance is not required to scrutinize policy documents to ensure that they match an insurance agent’s representations about the policy. See Boehm v. Riversource Life Ins. Co., 117 A.3d 308, 324 (Pa. Super. 2015).
-5- J-A28019-20
Consumer Protection Law (UTPCPL), 73 P.S. § 201-1, et seq.5 These claims
pertained to the representations Defendants made as to: (a) the guaranteed
rate of the 1994 policy Rock verbalized and illustrated at the 1993 meeting;
and (b) the guaranteed period of insurance coverage set forth in the 1994
Disclosure Statement (i.e., age 95). We will collectively refer to these
misrepresentations as the “1994 policy misrepresentations.”
Appellant’s claims of FM and NM were tried before a jury;
simultaneously, his UTPCPL claim was tried before the trial court, acting as
fact-finder. Trial commenced on April 30, 2019. On May 7, 2019, the jury
found for Appellant on the NM claim, and found against Appellant on the FM
claim. The jury awarded Appellant damages on the NM claim of approximately
$2,700. On October 21, 2019, the trial court found for Defendants on the
UTPCPL claim.
In the interim, on May 13, 2019, the trial court ordered the parties to
file proposed findings of fact and conclusions of law within 45 days (the
“proposed findings order”). Both parties timely complied.
On October 31, 2019, Appellant timely filed post-trial motions, which
included a motion for a new trial, as well as a motion for judgment
notwithstanding the verdict (JNOV) regarding the FM claim and the damages
portion of the NM claim. Appellant also challenged the trial court’s verdict
5Appellant pled two additional causes of action, which were later dismissed by agreement.
-6- J-A28019-20
against him on the UTPCPL claim and moved for a new trial. Defendants filed
a response in opposition. The trial court denied Appellant’s motions on March
12, 2020. Five days later, the prothonotary entered judgment on the
respective verdicts.
Appellant filed a timely notice of appeal on March 18, 2020. The trial
court did not order Appellant to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b), and no statement was filed. On
June 23, 2020, the trial court issued a 3-page opinion.
Appellant presents six issues for our review:
1. Did the trial court err in finding there was no violation of the Unfair Trade Practices and Consumer Protection Law?
2. Was the trial court’s nonjury verdict in favor of Defendant[s] on [Appellant’s] UTPCPL claim against the weight of the evidence?
3. Was the jury’s determination in favor of Defendant[s] on [Appellant’s] fraudulent misrepresentation claim against the weight of the evidence?
4. Did the trial court err in finding that [Appellant] failed to prove that Defendants’ misrepresentations regarding the terms of the universal life policy were made either intentionally or with reckless disregard to their falsity?
5. Did the trial court err in denying [Appellant’s] motion for a directed verdict and JNOV as to [Appellant’s] fraudulent misrepresentation and negligent misrepresentation claims?
6. Did the trial court err by: (1) permitting Defendants to introduce evidence that they were entitled to an offset from [Appellant’s] claimed damages; and (2) instructing the jury that they may deduct from [Appellant’s] claimed damages an offset amount based upon the alleged “value” of the insurance coverage?
-7- J-A28019-20
Appellant’s Brief at 6 (issues renumbered, some capitalization omitted).6
Appellant first argues that the trial court’s verdict on his UTPCPL claim
was against the weight of the evidence and must be overturned. See
Appellant’s Brief at 61-71. After care review, we disagree.
The UTPCPL is Pennsylvania’s consumer protection law; it provides a
private right of action for anyone who “suffers any ascertainable loss of money
or property” attributable to an unlawful method, act or practice. 73 P.S. §
201-9.2(a); see also Richards v. Ameriprise Fin., Inc., 152 A.3d 1027,
1035 (Pa. Super. 2016). It was created to prevent “[u]nfair methods of
competition and unfair or deceptive acts or practices in the conduct of any
trade or commerce. . . .” 73 P.S. § 201-3; see also Pekular v. Eich, 513
A.2d 427, 433 (Pa. Super. 1986). We have cautioned that the
UTPCPL must be liberally construed to effect the law’s purpose of protecting consumers from unfair or deceptive business practices. In addition, the remedies of the UTPCPL are not exclusive, but are
6Appellant’s brief fails to comply with Rule of Appellate Procedure 2119, which requires that:
The argument shall be divided into as many parts as there are questions to be argued; and shall have at the head of each part - in distinctive type or in type distinctively displayed - the particular point treated therein, followed by such discussion and citation to authorities as are deemed pertinent.
Pa.R.A.P. 2119(a). The section headings of Appellant’s argument in no way correspond to the 6 issues he sets forth in his statement of questions presented. However, we decline to find waiver and address Appellant’s issues as best we discern them.
-8- J-A28019-20
in addition to other causes of action and remedies. The UTPCPL’s “underlying foundation is fraud prevention.”
Boehm, 117 A.3d at 321 (citations and quotation marks omitted).
Section 201-2(4) of the UTPCPL lists 20 enumerated practices that
constitute actionable “unfair methods of competition” or “unfair or deceptive
acts or practices.” 73 P.S. § 201-2(4)(i)-(xx). Notably, the UTPCPL also
contains a “catchall” provision at section 201-2(4)(xxi). The pre-1996
amendment catchall provision, which applies to the transactions in the instant
case, prohibited “fraudulent conduct” that created a likelihood of confusion or
misunderstanding. Id. § 201-2(4)(xvii).7
We have explained:
[To] bring a private cause of action under the pre-amended version of the catchall provision of the UTPCPL, a plaintiff must establish common law fraud by a preponderance of the evidence. . . . The elements of common law fraud include: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it;[8] (5) justifiable reliance on the ____________________________________________
7 Conversely, the post-amendment catchall provision prohibits “engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. § 201-2(4)(xxi) (emphasis added). Thus, the 1996 amendment, which is not applicable here, permits plaintiffs to proceed without satisfying all of the elements of common law fraud. See Krishnan v. Cutler Grp., Inc., 171 A.3d 856, 893 (Pa. Super. 2017); Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 152 (Pa. Super. 2012).
8We note that recklessness and intentional conduct are not synonymous. See Archibald v. Kemble, 971 A.2d 513, 517 (Pa. Super. 2009) (“Reckless misconduct differs from intentional wrongdoing in a very important particular.
-9- J-A28019-20
misrepresentation; and (6) the resulting injury was proximately caused by the reliance.
Richards, 152 A.3d at 1035 (emphasis and footnote added, citation and
breaks omitted); see also Delahanty v. First Pa. Bank, N.A., 464 A.2d
1243, 1252 (Pa. 1983) (“It is well settled that fraud is proved when it is shown
that the false representation was made knowingly, or in conscious ignorance
of the truth, or recklessly without caring whether it be true or false.”).
Appellant argues the UTPCPL verdict is against the weight of the
evidence. We have stated that a new trial, based on weight of the evidence
issues,
will not be granted unless the verdict is so contrary to the evidence as to shock one’s sense of justice; a mere conflict in testimony will not suffice as grounds for a new trial. Upon review, the test is not whether this Court would have reached the same result on the evidence presented, but, rather, after due consideration of the evidence found credible by the [fact-finder], and viewing the evidence in the light most favorable to the verdict winner, whether the court could reasonably have reached its conclusion. . . .
We stress that if there is any support in the record for the trial court’s decision to deny the appellant’s motion for a new trial based on weight of the evidence, then we must affirm. An appellant is not entitled to a new trial where the evidence presented was conflicting and the fact-finder could have decided in favor of either party.
While an act to be reckless must be intended by the actor, the actor does not intend to cause the harm which results from it.” (citation omitted)); see also Office of Disciplinary Counsel v. Anonymous Atty. A, 714 A.2d 402, 407 (Pa. 1998) (“recklessness may be described as the deliberate closing of one’s eyes to facts that one had a duty to see, or stating as fact things of which one was ignorant.”).
- 10 - J-A28019-20
Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super. 2007) (internal citations
omitted). “It is the province of the [fact-finder] to assess the worth of all
testimony presented. The [fact-finder] is free to believe all, some, or none of
the witness testimony presented at trial.” Mader v. Duquesne Light Co.,
199 A.3d 1258, 1264 (Pa. Super. 2018) (citation omitted). Further, “[o]ne of
the least assailable reasons for granting or denying a new trial is the lower
court’s conviction that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of justice.”
Phillips v. Lock, 86 A.3d 906, 919 (Pa. Super. 2014) (citation omitted).
Here, Appellant makes a compelling argument:
In finding that the [1994 policy] misrepresentations made by Defendants only amounted to a “mistake,” the trial court committed reversible error since the greater weight of the evidence supported a finding that, as a result of his training and licensing, Rock made misrepresentations with reckless indifference to the truth, in selling the [1994] policy. The evidence [also] established that [Appellant] justifiably relied upon those misrepresentations in purchasing the [1994] policy from Defendants, and that [Appellant] suffered financial harm as a result thereof.
Appellant’s Brief at 62 (some capitalization omitted); see also id. at 42
(pointing out that at the time of the 1993 meeting, Rock, a licensed
Pennsylvania insurance agent, had been selling UL policies on behalf of
Defendants for 10 years).
Appellant further asserts that even if Defendants’ 1994 policy
misrepresentations were not intentional or reckless, Appellant nevertheless
proved common law fraud, since innocent misrepresentations are actionable
- 11 - J-A28019-20
in Pennsylvania. See id. at 63-65 (citing Delahanty, 464 A.2d at 1252 ( “a
misrepresentation innocently made is also actionable if it relates to a matter
material to the transaction involved”)). Appellant adds that Rock had several
opportunities to correct the 1994 misrepresentations, or contact Appellant
after execution of the inaccurate 1994 Disclosure Statement, but never did
so. See Appellant’s Brief at 64. Appellant further emphasizes Rock’s
concession at trial that he “should have looked closer at the [1994] disclosure
statement[.]” Id. at 65 (quoting N.T., 4/30/19-5/7/19, at 651).
In Pennsylvania, a misrepresentation may be actionable under three
theories: intentional misrepresentation, negligent misrepresentation, and
innocent misrepresentation. See Bortz v. Noon, 729 A.2d 556, 560, 564-65
(Pa. 1999). Where, as here, a plaintiff seeks monetary damages for an alleged
misrepresentation, but does not seek to rescind the contract, there is “no basis
for such damages under a claim of innocent misrepresentation in
Pennsylvania.” Growall v. Maietta, 931 A.2d 667, 674 (Pa. Super. 2007)
(emphasis added) (citing Bortz, 729 A.2d at 564-65 (“claim for a
misrepresentation, innocently made, to the extent recognized in this
Commonwealth, is an equitable doctrine based upon contract principles
supporting equitable recision to make a contract voidable by the innocent
party,”; however, it does not provide a basis to award monetary damages
for tort recovery)).
- 12 - J-A28019-20
Appellant is correct that innocent misrepresentations are actionable.
However, Defendants’ alleged innocent misrepresentations do not satisfy the
intent element of common law fraud. Therefore, Defendants’ innocent
misrepresentations do not support Appellant’s pre-amendment UTPCPL claim.
The trial court found that Defendants lacked the requisite intent to
mislead Appellant, stating:
Having heard all of the evidence, the court was not persuaded, by a preponderance of the evidence that Defendants made misrepresentations with knowledge or reckless disregard of their falsity or that Defendants acted with any fraudulent intent. Any inaccurate representations by Defendants were the result of, at most, negligence. For example, [] Rock’s assistant mistakenly indicated [Appellant’s] coverage would continue until age 95, when she filled out the [D]isclosure [S]tatement for the 1994 policy. The mistake was not fraudulent. Also, while five percent was the policy’s guaranteed interest rate presented by [Rock] to [Appellant] as of [the] 1993 [meeting], the guaranteed rate had dropped to four percent by the time [Appellant] bought the [1994] policy [at the] 1994 [meeting], but [Rock and] Rock’s assistant mistakenly, not purposely, failed to update the interest rate so as to advise [Appellant]. Because [Appellant] did not prove Defendants knowingly or recklessly made a false representation and did not prove Defendants had fraudulent intent, [Appellant’s] claim under the UTPCPL failed. Richards, 152 A.3d at 1035; Boehm, 117 A.3d at 321-23. . . .
Trial Court Opinion, 6/23/20, at 2-3 (emphasis added).
Our review of the record discloses no basis to disturb the trial court’s
determinations, and as stated above, we may not assume the role of fact-
finder or reweigh the credibility of the witnesses and the evidence adduced at
trial. See Shepherd v. Pittsburgh Glass Works, LLC, 25 A.3d 1233, 1245
(Pa. Super. 2011) (stating “assessments of credibility and conflicts in evidence
- 13 - J-A28019-20
are for the trial court to resolve; this Court is not permitted to reexamine the
weight and credibility determinations or substitute our judgment for that of
the factfinder.” (citation omitted)).
Appellant contends that the trial court as fact-finder improperly
overlooked the alleged special duty Defendants owed to Appellant in selling
him the 1994 policy, and the duty was sufficient to prove the intent element
of common law fraud:
Insurers and licensed insurance agents have a duty to accurately disclose the material terms and conditions of the policy. The failure to inform [Appellant] of the negative changes to these material terms[, i.e., as originally set forth in the 1988 policy,] was more than a “mistake”; it was reckless, because Defendants had an affirmative duty to provide accurate information at the time of sale. Defendants also had a duty to inform [Appellant], both when the [1994] policy was issued and delivered, that the material terms and conditions were altered from what had been described at the time of sale.
Appellant’s Reply Brief at 4 (citations to record omitted).
Appellant relies upon this Court’s decisions in Toy v. Metro. Life Ins.
Co., 863 A.2d 1, 13 (Pa. Super. 2004) (holding it was for a jury to determine
whether the plaintiff’s failure to conduct a cursory examination of information
contained in the life insurance policy prevented plaintiff from demonstrating
her justifiable reliance on the insurance agent’s oral representations, and
stating that the agent “possessed a duty to inform [plaintiff] that he sold her
something different from what he purported to sell her.”), and Pressley v.
Travelers Prop. Cas. Co., 817 A.2d 1131, 1140-41 (Pa. Super. 2003)
(holding that the insured had no obligation to read her automobile policy to
- 14 - J-A28019-20
discover her insurance agent’s misrepresentation as to the extent of the
coverage, where the insured asked for particular coverage and the agent
informed the insured that the policy would provide it, but the agent never
amended the terms of the policy as requested). Both of these decisions are
inapposite, however, as the element of common law fraud at issue was
whether the respective insureds justifiably relied on their respective agents’
representations, not the intent of the insurers.9
Assuming, arguendo, that Rock had (a) a special duty to provide
Appellant accurate information concerning the 1994 policy; and/or (b) acted
recklessly as argued by Appellant, Appellant must still prove that Rock
intentionally misled Appellant into relying on Rock’s representations. See
Richards, supra. Here, the record is sufficient to support the trial court’s
conclusion that Appellant failed to carry his burden.
Finally, Appellant claims the trial court “erred by failing to consider
whether [Appellant] proved Defendants violated three other subsections [of
the UTPCPL: 73 P.S. § 201-2](4)(v), (vii), and (xiv),” none of which “require
9 Further, neither decision concerned the catchall provision of the UTPCPL.
- 15 - J-A28019-20
proof of intent.”10 Appellant’s Brief at 68. However, Appellant never raised
this claim before the trial court; therefore, it is waived. See Trigg v.
Children's Hosp. of Pittsburgh, 229 A.3d 260, 269 (Pa. Super. 2020) (citing
Pa.R.A.P. 302(a) and stating “it is axiomatic that issues not raised in lower
courts are waived for purposes of appellate review, and they cannot be raised
for the first time on appeal.”). Indeed, the trial court’s order expressly
cautioned the parties that any claims not raised in proposed findings would be
waived, and in Appellant’s proposed findings of fact and conclusions of law,
the only provision of the UTPCPL Appellant asserted Defendants had violated
10 Among the enumerated practices that constitute actionable “unfair methods of competition” or “unfair or deceptive acts or practices,” under section 201- 2(4) are
(v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he [or she] does not have;
***
(vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another;
(xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made[.]
73 P.S. § 201-2(4)(v), (vii), and (xiv).
- 16 - J-A28019-20
was the catchall provision. See Proposed Findings of Fact and Conclusions of
Law, 9/6/19, at ¶ 108.11 Furthermore, the cases Appellant relies upon,
including Boehm and Richards, supra, concern the catchall provision, not
subsections 201-2(4)(v), (vii), or (xiv).
In sum, while Appellant’s weight challenge to the trial court’s UTPCPL
verdict is compelling, the law regarding the pre-amendment UTPCPL catchall
provision does not provide a basis for relief.
Appellant next argues that the trial court erred in failing to grant his
motions for a new trial/JNOV on his FM claim. See Appellant’s Brief at 36-61.
In reviewing a trial court’s denial of a post-trial motion seeking a new trial,
this Court applies a deferential standard of review. The decision whether to grant or deny a new trial is one that lies within the discretion of the trial court. We will not overturn such a decision unless the trial court grossly abused its discretion or committed an error of law that controlled the outcome of the case.
Woullard v. Sanner Concrete & Supply, 2020 PA Super 263, **18-19 (Pa.
Super. 2020) (citation omitted). “In examining the evidence in the light most
favorable to the verdict winner, to reverse the trial court, we must conclude
11Although Appellant briefly pointed out that he asserted other violations of section 201-2(4) in his complaint, see Proposed Findings of Fact and Conclusions of Law, 9/6/19, at ¶ 90, the only argument he properly developed concerned the catchall provision. See Karn v. Quick & Reilly, Inc., 912 A.2d 329, 336 (Pa. Super. 2006) (“arguments which are not appropriately developed are waived”); Pa.R.A.P. 302. Moreover, the trial court’s opinion did not address any other subsections of section 201-2(4) aside from the catchall provision.
- 17 - J-A28019-20
that the verdict would change if another trial were granted.” Talmadge v.
Ervin, 236 A.3d 1154, 1156 (Pa. Super. 2020) (citation omitted).
As to a trial court’s denial of a motion for JNOV, our standard of review
is as follows:
There are two bases on which the court can grant judgment n.o.v.: 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 his 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.
In an appeal from the trial court’s decision to deny judgment n.o.v., we must consider the evidence, together with all favorable inferences drawn therefrom, in a light most favorable to the verdict winner. Our standard of review when considering motions for a directed verdict and judgment notwithstanding the verdict are identical. We will reverse a trial court’s grant or denial of a judgment notwithstanding the verdict 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.
A.Y. v. Janssen Pharm. Inc., 224 A.3d 1, 11-12 (Pa. Super. 2019)
(citations, brackets and paragraph breaks omitted). This Court has cautioned
that a motion for JNOV
may not be employed to invade the province of the jury. Thus, when there is a question of fact to be resolved, it is within the sole purview of the jury. JNOV should not be entered where evidence is conflicting upon a material fact. Thus, where the jury has been presented with conflicting evidence, a motion for JNOV should be denied.
- 18 - J-A28019-20
Koller Concrete, Inc. v. Tube City IMS, LLC, 115 A.3d 312, 321 (Pa. Super.
2015).
To prove a claim for common law fraud, a plaintiff must prove the 6
elements set forth in Richards, supra; but see also Richards, 152 A.3d at
1038 (stating that a plaintiff alleging common law fraud “must meet the more
exacting standard of clear and convincing evidence, which is a higher standard
of persuasion than mere preponderance of the evidence.” (citation omitted)).
Appellant concedes that to prove the tort of FM, he must prove
Defendants possessed the intent to mislead him. See Appellant’s Brief at 36,
56-57. However, as discussed above, it was within the sole province of the
jury, as the fact-finder on the FM claim, to evaluate the evidence and
credibility of the witness as to the intent element; we may not invade the
province of the jury. See Shepherd, supra. Accordingly, the trial court did
not err in denying Appellant’s motions for JNOV/new trial, and this claim lacks
merit.
Finally, Appellant argues that the trial court, as fact-finder on the
UTPCPL claim, and the jury, as fact-finder on the FM claim, “failed to follow
the law as set forth in [a certain] jury instruction.” Appellant’s Reply Brief at
1. Appellant contends that contrary to the instruction, the fact-finders, in
deciding damages, were not permitted to consider whether (a) Appellant
received any value for the UL insurance provided by Defendants from 1988 to
2004; and (b) said value (if any) may be deducted from the damages award
- 19 - J-A28019-20
against Defendants. See Appellant’s Brief at 72-80. Appellant further claims
that the trial court erred in permitting Defendants to introduce evidence
regarding the alleged “value” of the 16 years of life insurance coverage
Defendants provided Appellant. Id. at 77.
The law is well-settled:
Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court’s decision absent a clear abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en
banc) (citations and quotation marks omitted). Moreover, an award of
damages, including whether to provide for an offset, is within the sound
discretion of the jury. See A.Y., 224 A.3d at 30.
Here, the trial court instructed:
If you find that [Appellant] received a benefit from his purchase of insurance between 1998 and 2004, you may consider the value of this benefit and you may deduct from his damages the value to him of such benefit. The law does not permit a person to benefit from a fraudulent act. If you find the financial harm to [Appellant] was caused through deception and fraud, then you must award an amount sufficient to compensate [Appellant] for the value of the use of [Appellant’s] money by [D]efendants. [D]efendants are not permitted to earn any profit from [Appellant’s] money that was unlawfully held.
N.T., 4/30/19-5/7/19, at 1609 (emphasis added).
The trial court subsequently opined:
- 20 - J-A28019-20
[Appellant] claims the court erred in allowing the jury to consider evidence in support of Defendants’ argument for a setoff. [Appellant] wanted life insurance coverage and he received coverage. Defendants provided and administered that coverage for him. Defendants were entitled to seek a setoff. [Appellant] relies on distinguishable cases such as DeArmitt v. New York Life, 73 A.3d 578 (Pa. Super. 2013), Gregg v. Ameriprise, 195 A.3d 930 (Pa. Super. 2018), and Agliori v. Metro. Life, 879 A.2d 315 (Pa. Super. 2005). In DeArmitt, a summary judgment case, the trial court allowed a setoff against the plaintiffs’ damages but doing so was error because the plaintiffs did not want life insurance coverage and did not think they had purchased life insurance coverage. They thought they had purchased an annuity. See DeArmitt, 73 A.3d at 584, 598. A setoff was inappropriate. Id. In Gregg, setoff was disallowed because the trial court found the defendants simply did not provide a credible, competent dollar amount for the offset. Gregg, 195 A.3d at 941. The Agliori opinion involved the parties’ dispute about what the amount of the death benefit, which was paid, should have been. The Agliori case did not turn on the setoff issue raised in this case. Agliori, 879 A.2d at 319-21. [Appellant] in this case has not demonstrated that this court erred.
Trial Court Opinion, 6/23/20, at 2-3.
There is no basis to disturb the trial court’s reasoning. Our review
discloses no error by the trial court in admitting evidence, nor was the jury
precluded from considering it. Appellant argued that he did not receive any
value for the years of life insurance he received. See N.T., 4/30/19-5/7/19,
at 1609. The jury was free to accept or reject this argument. See A.Y.,
supra; see also Mader, supra. Thus, we find no merit to Appellant’s claims
in this regard.
In sum, and consistent with the foregoing legal authority, we conclude
that Appellant’s issues do not merit relief.
Judgment affirmed.
- 21 - J-A28019-20
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 12/11/2020
- 22 -