Landis & Setzler PC v. Aamodt, N.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LANDIS & SETZLER, PC IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

NORMAN AND MARJORIE AAMODT, H/W

Appellants No. 2433 EDA 2013

Appeal from the Judgment Entered October 31, 2013 In the Court of Common Pleas of Chester County Civil Division at No(s): 11-14116

BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J. MEMORANDUM BY MUNDY, J.: FILED AUGUST 22, 2014

Appellants, Norman Aamodt and Marjorie Aamodt, appeal pro se from the October 31, 2013 judgment entered in favor of Appellee, Landis & Setzer, PC, in the amount of $7,519.00 on its breach of contract claim against Appellants. After careful review, we affirm on the basis of the well-reasoned November 12, 2013 trial court opinion authored by the Honorable Robert J. Shenkin.

We summarize the factual and procedural history of this case as follows. Appellants hired attorney David Melman, Esquire (Attorney Melman) of Appellee law firm, to represent them in an ongoing appeal in the case of Aamodt v. Levin, 947 A.2d 819 (Pa. Super. 2007) (unpublished

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memorandum), appeal denied, 959 A.2d 318 (Pa. 2008).1 Appellants also hired Attorney Melman to represent them in the case on remand from the appeal to the Court of Common Pleas of Philadelphia County at civil docket no. 002368 (the Remand Case) regarding the molding of a verdict to include, inter alia, pretrial interest. Appellants discharged Attorney Melman prior to the final hearing on molding their verdict in the Remand Case, where they proceeded pro se.2 A fee dispute then arose between Appellee and

ng the aforementioned appeal.

Appellee initiated the instant action for unpaid fees before magisterial district judge, Mark Bruno, who entered a judgment in its favor and against Appellants in the amount of $6,141.00 on December 2, 2011. Appellee filed a de novo appeal to the Court of Common Pleas on December 20, 2011. On June 22, 2012, Appellee filed its complaint for breach of contract against Appellants. Appellants filed an answer, new matter and counterclaim on July 13, 2012. Appellants alleged it was Appellee who was in breach of contract

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represent Appellants in opposing a motion for reconsideration and a petition for allowance of appeal. 2 Appellants contend they were compelled to discharge Attorney Melman because he would not advocate their position as to what should be the proper commencement date for the calculation of pretrial interest due. The substance of this difference of opinion is discussed more fully by the trial court in its November 12, 2013 Rule 1925(a) opinion, which we adopt herewith.

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for failing to represent their position regarding the molding of the verdict in the Remand Case 7/13/12, at 3, 5, ¶¶ 12, 31. Appellants also made an averment of emotional damages. Id. at 5, ¶ 34.

The case proceeded to compulsory arbitration. On August 13, 2012, the Arbitrators entered an award in favor of Appellee for $9,411.12 on its Appellants filed a notice of appeal from the arbitration award on September 11, 2012, and the matter proceeded to a two-day jury trial, commencing April 15, 2013. At the conclusion of testimony, the trial court granted

rdict against Appellants on their counterclaim. Appellants filed timely post-trial motions, which the trial court denied on July 24, 2013. Appellants filed a notice of appeal on August 20, 2013.3 Appellants and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.

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appeal was premature. See Pa.R.A.P. 301. By per curiam order dated, October 24, 2013, this Court directed Appellants to praecipe for entry of judgment with the trial court prothonotary. Appellants complied on October 31, 2013, and judgment was entered. Thus, we now have jurisdiction over this appeal pursuant to Pa.R.A.P. 905(a notice of appeal filed after the announcement of a determination but before the entry of an appealable order shall be treated as filed after such entry and on the ts Ctr., Inc., 948 A.2d 834, 842 n. 1 (Pa. Super. 2008) (under Rule 905(a)(5), subsequent entry of judgment perfected premature appeal), affirmed, 2 A.3d 526 (Pa. 2010).

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On appeal, Appellants raise the following issues for our consideration.

1. Whether the [trial] court abused its discretion by directing a verdict in favour of [Appellee] and

motion for non-suit,

a. where the court admitted that a jury could find breach of contract but [Appellants] did not prove damages, whereas the court would not allow

to breach of contract to represent

and fair testimony of emotional damages in respect to breach of contract to represent [Appellants] in opposition to a petition for a charging lien, and/or where there

payment on a contract that was breached, and/or,

b. where the court thwarted

testimony admitting fraud, overlooked tolling of the statute of limitations for filing a claim of fraud by concealment of fraud until filing the instant claim, and/or

c. where the court demanded [Appellants] close of their case before their exhibits were entered, depriving [Appellants] of this evidence.

2. Whether the court abused its discretion by instructing the jury as to the evidence as to claim,

a. by directing the jury on computation of the amount owed by [Appellants], and/or

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b. by allowing [Appellee] to amend its claim in line with the amount the court instructed the jury was owed by [Appellants], and/or

c. by failing to instruct the jury to determine whether [Appellee] breached its contract and as to the applicable law for an award of damages of the amount [Appellants] paid on the contract.

3. Whether the jury erred by finding in favour of claim when the evidence before the jury showed breach of contract.

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All evidentiary proffers relative to those claims.

not to grant judgment in favor of one of the parties, we must consider the evidence, together with all favorable inferences drawn therefrom, in the light most favorable to the verdict winner. Our standard[s] of review when considering the motions for a directed verdict and judgment notwithstanding the verdict [JNOV] are identical. We will reverse a

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.

There are two bases upon which a [directed verdict or 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

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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.

Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012), quoting, Campisi v. Acme Mkts., Inc., 915 A.2d 117, 119 (Pa. Super. 2006), appeal denied, 69 A.3d 243 (Pa. 2013). an appellate trial court abused its discretion; however, where the evidentiary ruling turns

Buckman v. Verazin, 54 A.3d 956, 960 (Pa. Super. 2012) (citation omitted), appeal denied, 77 A.3d 1258 (Pa. 2013).

Appellants begin their argument by asserting the trial court erred in determining that they failed to properly plead or prove a case for fraud within the relevant statute of lim

or

Id. at 19. court that no claim of fraud was alleged by Appellants against Appellee. The

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sections of their answer, referenced by Appellants as asserting a fraud claim, Answer, New Matter and Counterclaim, 7/13/12, at 3-4, ¶¶ 13, 19, 22, 29;

-20. They do not aver any fraud in connection with the underlying relationship or transactions between the parties with sufficient particularity required by Pennsylvania Rule of Civil Procedure 1019(b).4

Appellants additionally assert, d have been Answer, New Matter and Counterclaim, 7/13/12, at 5, ¶ 27. We agree with the trial court that such damages are not recoverable in the instant action.

[D]amages for emotional distress are not ordinarily allowed in actions for breach of contract. There are only two exceptions. The first is where the emotional distress accompanies bodily injury. This usually takes the form of an action in tort. The second exception occurs where the breach is of such a type that serious emotional disturbance is a particularly likely result.

____________________________________________ 4 The Rule provides as follows.

Rule 1019. Contents of pleadings. General and Specific Averments

(b) Averments of fraud or mistake shall be averred with particularity. Malice, intent, knowledge, and other conditions of mind may be averred generally.

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Rittenhouse Regency Affiliates v. Passen, 482 A.2d 1042, 1043 (Pa. Super. 1984) (citations omitted). Instantly, as discussed by the trial court, these exceptions do not apply. See Trial Court Opinion, 11/12/13, at 4-5. characterized as a cause of action for breach of contract or fraud, failed because Appellants did not establish they were damaged. Id. at 4-5. Remand Case, but failed to advocate the position Appellants wished to advance relative to the commencement date for pre-trial interest in molding the verdict.

The Superior Court Order was the law of the case, having survived appeal. The trial court [in the Remand Case] violated the case law by failing to adhere to the Superior Court order in molding

[The trial court in the instant case] committed gross error and abused [its] discretion by upholding the trial court decision [in the Remand Case] by finding it was correct and by upholding it over the Superior Court order.

The trial court sets forth the factual and procedural history of the Remand Case in its November 12, 2013 opinion and concludes the following.

determination of the date from which pre-judgment interest began to accrue and it is that disagreement

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based upon a wholly flawed understanding of the law as well as a convenient failure to remember a critical fact that is at the crux of the present litigation.

Trial Court Opinion, 11/12/13, at 2 (emphasis in original).

We agree. In remanding the Remand Case for calculation of prejudgment interest, this Court did not make any determination of the correct commencement date to be employed, rather we held that the trial prejudgment and post- can be determined with a reasonable amount of certainty and through an audit to calculate the

and, therefore, remanded for said calculation. Aamodt, supra at 10 of the case as to that determination. Further, Appellants did not appeal the

the Remand Case and the doctrine of collateral estoppel precludes a relitigation of that judgment in the instant proceeding.

the second action is upon a different cause of action[,] the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action. Modern collateral estoppel doctrine no longer requires mutuality; a litigant who was not a party to the initial litigation may now use collateral estoppel offensively in a new suit against the party who lost on the decided issue in the initial case.

In Re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012) (internal quotations, citations, and footnote omitted).

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Appellants, in their final issue, contend the trial court erred in its

-28. Essentially, Appellants merely recast their argument that their counter claim against Appellees for breach of contract should have been submitted to the jury. a contract will not be heard to accuse the other party of breaching the contract

citing Archer v. State Farm Ins. Co., 615 A.2d 779, 785 (Pa. Super. 1992), appeal denied, 629 A.2d 1375 proper for the reasons outlined above, there was no occasion for the trial court to instruct the jury on those claims.

After careful review of the entire record, we conclude that the trial

-reasoned November 12, 2013 Rule 1925(a) claims, identifies the proper standard of review, discusses the relevant law and explains the basis for its conclusion that said claims lack merit. Accordingly, we discern no error or abuse of discretion which could afford Appellants relief. In as much as the conclusions expressed in said opinion, regarding Appellants damages for any alleged breach of contract by Appellee, and the adequacy

t with ours, we adopt it

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as our own for purposes of further appellate review. See Trial Court Opinion, 11/12/13.

Judgment affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/22/2014

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