Epps, L. v. Enterprise Bank

J.A19038/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA C. EPPS AND KELLY MORRISEY, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellees :
:
v. :
:
ENTERPRISE BANK, :
:
Appellant : No. 1733 WDA 2013

Appeal from the November 22, 2013 Judgment
In the Court of Common Pleas of Allegheny County
Civil Division No(s).: AR 11-008949

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 22, 2015

Appellant, Enterprise Bank, appeals from the judgment1 entered in the

Allegheny County Court of Common Pleas in the amount of $5,850.00 in

favor of Appellees, Lisa C. Epps and Kelly Morrisey. Appellant contends the

court erred in (1) finding there was sufficient evidence to establish that it

was liable for a stolen vehicle located on its property; (2) awarding damages

to Appellee Morrissey; and (3) ruling in favor of Appellees prior to Appellant

*
Former Justice specially assigned to the Superior Court.
1
Appellant purported to appeal from the order dated October 8, 2013
denying the motion for post-trial relief. An appeal lies from the entry of
judgment, not from the order denying the motion for post-trial relief.
Accordingly, we have amended the caption. Pa.R.A.P. 905(a)(5); see
Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719, 721 n.1 (Pa.
Super. 2012).
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presenting any evidence. We affirm the judgment as to Appellee Epps. We

vacate and remand for the court to enter judgment in favor of Appellee Epps

only.

Appellee Epps initially filed a complaint in the Magisterial District Court

and judgment was entered on December 13, 2011, in favor of Appellees.

Appellant filed an appeal. On January 23, 2012, Appellees filed a pro se,

handwritten one-paragraph complaint stating as follows:

My vehicle was at Enterprise property where it was left to
be repaired. (Viviandi Motors). After learning of the
owners/mechanics passing. The vehicle was still located at
the repair shop. We were told enterprise bank foreclosed
on property & current owner. The vehicle was stolen from
Enterprise property.

Complaint, 1/23/12.2 Appellant filed preliminary objections in the nature of

a demurrer. On March 2, 2012, the court entered a handwritten order

stating that Appellees could proceed on the grounds that Appellant

“exercised control over the vehicle improperly.” Order, 3/2/12. Appellant

filed an answer and new matter. An arbitration hearing was held and on

September 7, 2012, an award was entered in favor of Appellee Epps only in

the amount of $5,000. Appellant timely appealed. A non-jury trial de novo

was held on September 26, 2013.

2
We reproduced the complaint verbatim.

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The facts established at the non-jury trial were as follows: Appellees

left Appellee Epps’s3 1989 Range Rover for repair and service at Viviani

Motors by Brian Viviani. N.T., 9/26/13, at 5. Subsequently, Viviani died and

Enterprise foreclosed on the property. Id. at 6, 9. Joseph Fidler, Esq.,

counsel for Appellant, explained that Appellant gave a loan to Domenic

Petitta4 secured by mortgages on 4333 Ohio River Boulevard and 4281 Ohio

River Boulevard. Id. at 11. The loan went into default and Appellant

purchased the properties at a sheriff’s sale. Id. On September 13, 2011,

Appellee Morrissey went to the property to inquire about the Range Rover.

Id. He spoke with Rob Rock, an employee of Kuzneski & Lockard, which

manages all foreclosed properties for Appellant. Id. at 12, 15, 16. On

October 3, 2011, when Appellees went to retrieve the vehicle, it was

not on the property. Id. at 7 (emphasis added).

Rock testified that he was at the property to have the locks changed

on December 21, 2010. Id. at 33. At that time, there were several vehicles

on the property. Id. at 34. He “was to understand that the bank had

contacted the father of the [deceased] gentleman, and he came, Domenic

Petitta, had all the vehicles removed except for the Range Rover.” Id.

Subsequently, he went back to the property and all of the vehicles were

3
Appellees concede Epps is the true owner of the vehicle. Appellees’ Brief at
22; N.T. at 6.
4
Petitta was Viviani’s father. N.T. at 34.

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gone with the exception of Appellee Epp’s Range Rover. Id. Rock spoke

with Appellee Morrissey and asked him to pick up the vehicle in October. Id.

at 35. Rock told him the vehicle “could be towed at some time.” Id. at 36.

He “just couldn’t leave it on the property, but [he] hadn’t been

working diligently on having the car towed.” Id. (emphasis added).

Rock never made any arrangements to have the vehicle removed from the

property. Id. at 37. Rock assumed Appellees filed a police report regarding

the vehicle because he was contacted by a police officer. Id. at 38.

Brian James Conn testified as follows. He worked for a subsidiary of

Appellant, BuildOnUs. Id. at 43. He was a construction/building

maintenance supervisor. Id. at 44. He went to the property to evaluate it

and prepare a budget for rehabbing it. Id. No one approached him

regarding the Range Rover while he was at the property. Id. at 46. He

never met Appellees. Id. Neither he nor any of his four employees moved

the vehicle. Id. at 47. The back gate to the property was open all the time

and the Range Rover was not secured. Id. at 48. He never removed the

vehicle or authorized anyone to remove it. Id. at 52.

Appellees proceeded pro se at trial. Appellee Morrissey did not

question Conn. Appellee Morrissey stated to the court: “The only one I

spoke to was Mr. Rock, so I don’t have any questions at all for [him.]” Id.

at 54.

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John Holmes, a site supervisor at BuildOnUs, testified that he never

met Appellees. Id. at 57. He saw the vehicle on the property. Id. at 58.

He never moved the vehicle. Id. Appellee Morrissey questioned him

regarding the condition of the vehicle and its infestation with bees. Id. at

59. He testified that he was told to leave the vehicle on the property. Id. at

60.

Appellee Morrissey asked the court to recall Rock so he could cross-

examine him and the court complied. Id. at 61. He testified as follows:

Appellee Morrissey had called him on October 3rd and Rock informed him

the vehicle was gone. Id. at 62. Rock never removed the vehicle. Id. His

priority was to rehabilitate the real property and not the vehicle on the

property. Id. at 63.

The court found that Appellant was responsible for the vehicle and the

only issue before it was the valuation of the 1989 Range Rover. Id. at 66.

The trial court entered judgment in favor of Appellees in the amount of

$5,850.00. Appellant filed a post-trial motion requesting judgment in its

favor notwithstanding the verdict (“JNOV”). Appellant’s Mot. for Post Trial

Relief Pursuant to Pa.R.C.P. 227.1, 10/3/13, at 8. The trial court denied the

motion. Appellant filed a notice of appeal from the denial of the post-trial

motions. Judgment was entered on November 22, 2013. Appellant filed a

court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal and the trial court filed a Memorandum in Lieu of Opinion.

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Appellant raises the following issues for our review:

A. The Court of Common Pleas erred in finding that the
Appellee proffered sufficient evidence, either through
testimony or documentation, to establish that the
Appellant was liable for an allegedly stolen vehicle located
on its property[.]

1. Appellee failed to establish the elements of
negligence[.]

i. The Court of Common Pleas ignored
uncontroverted facts that the Appellee had notice
that the Range Rover was located on Appellant’s
property and that Appellee was permitted to
remove the Range Rover[.]

2. Appellee failed to establish the elements of a
bailment.

3. Appellee failed to establish the elements of
conversion.

4. The Trial Court violated the “coordinate jurisdiction”
rule by ignoring Honorable R. Stanton Wettick’s Order
of Court dated March 2, 2012 which provided that
Appellee may pursue its claim based upon Appellant
exercising control over the vehicle improperly.

B. The Court of Common Pleas erred in finding damages in
favor of Kelly Morrissey, a party to the action, but not the
owner of the vehicle[.]

C. The Court of Common Pleas abused its discretion when
it ruled in favor of Appellee prior to Appellant presenting
any testimony or documentation in support of its
defenses[.]

Appellant’s Brief at 5.

As a prefatory matter, we consider whether Appellant has waived its

sufficiency of the evidence claims. Appellant prefaced its statement of errors

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complained of on appeal with the following statement pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b)(4)(vi).

[Appellant] cannot readily discern the ultimate basis for
the Judge’s determination due to the fact that it is unclear
as to what theory of liability the Court of Common Pleas
held [Appellant] liable. As a result, while [Appellant]
attempts to be as concise as possible, some of the
statements are more general. [Appellant] respectfully
requests that the below Statements of Error not be found
to be waived on the grounds that they may be presented
in general terms.

Appellant’s Statement of Errors Complained of on Appeal Pursuant to

Pa.R.A.P. 1925, 11/18/13, at 1.

Appellant raised the following issue, inter alia, in the Rule 1925(b)

statement:5 “Whether the court of Common Pleas erred in finding that

5
We note Appellant’s Rule 1925(b) statement contained eight issues, some
of which have not been addressed in its statement of questions involved or
in the argument section of Appellant’s brief. This Court has stated:

We note that [the a]ppellant’s eleven-page Rule 1925(b)
statement of errors contains issues that it did not address
in its statement of questions involved or in the body of its
brief, including a statute of limitations claim. Because [the
a]ppellant has abandoned these issues on appeal, we will
not address them. See Pa.R.A.P. 2116(a) (“No question
will be considered unless it is stated in the statement of
questions involved or is fairly suggested thereby”); see
also Pa.R.A.P. 2119; In re Jacobs, 936 A.2d 1156, 1167
(Pa. Super. 2007) (issue is waived for purposes of
appellate review when an appellant does not develop it in
brief).

Gurley v. Janssen Pharmaceuticals, Inc., ___ A.3d ___, ___, 2015 WL
1135894 at *2 n.11 (Pa. Super. 2015) (emphasis added and some citations
omitted).

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[Appellees] proffered sufficient evidence, either through testimony or

documentation, to establish that [Appellant] was liable for an allegedly

stolen vehicle located on its property under causes of action for negligence,

bailment or conversion.” Id.

Pennsylvania Rule of Appellate Procedure 1925(b(4)(vi) provides:

If the appellant in a civil case cannot readily discern the
basis for the judge’s decision, the appellant shall preface
the Statement with an explanation as to why the
Statement has identified the errors in only general terms.
In such a case, the generality of the Statement will
not be grounds for finding waiver.

Pa.R.A.P. 1925(b)(4)(vi) (emphasis added). Accordingly, we decline to find

the issue of the sufficiency of the evidence waived. See id.

Appellant argues the evidence was insufficient to establish the

elements of conversion because Appellees have failed to establish that

Appellant exercised dominion or control over the vehicle. Appellant’s Brief at

26. We find no relief is due.

In Lanning v. West, 803 A.2d 753 (Pa. Super. 2002), this Court

opined:

Initially, we note that [the appellant] raises her sufficiency
of the evidence claim within the context of an appeal from
a denial of a motion for judgment N.O.V. Where the
evidence is insufficient to sustain the verdict or decision of
the trial court, the remedy granted in civil cases is a
judgment notwithstanding the verdict. We will thus
address [the appellant’s] sufficiency of the evidence claim
in the context of her appeal from the denial of her motion
for [JNOV. The appellant] contends [JNOV] was proper
because [the appellee] had not provided sufficient

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evidence for the court to find a conversion of property . . .
.

Id. at 759 (citations omitted).

“A sufficiency analysis, whether in the context of an appeal from the

granting of judgment n.o.v. or compulsory non-suit, must begin by

accepting the credibility and reliability of all evidence, viewed in the light

most favorable to the verdict winner regardless of whether the appellant

thinks that the evidence was believable.” Morin v. Brassington, 871 A.2d

844, 851 (Pa. Super. 2005).

Our review is governed by the following principles.

In reviewing a trial court’s decision whether or not to
grant judgment in favor of one of the parties, 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.

Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058 (Pa. Super. 2003) (citation

omitted).

This Court has stated the following with regard to the
tort of conversion:

The classic definition of conversion under Pennsylvania
law is “the deprivation of another’s right of property in, or
use or possession of, a chattel, or other interference
therewith, without the owner’s consent and without lawful
justification.” Although the exercise of control over the
chattel must be intentional, the tort of conversion does

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not rest on proof of specific intent to commit a
wrong. . . . See Bank of Landisburg v. Burruss, [524
A.2d 896, 899 (Pa. Super. 1987]) (“Ordinarily, there is no
inconsistency between finding that a defendant acted in
good faith and finding that he is a converter.”)

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114,

119 (Pa. Super. 2014) (citations omitted and emphasis added). “Moreover,

a demand and refusal is an essential element of [a] claim for conversion.”

PTSI, Inc. v. Haley, 71 A.3d 304, 313 (Pa. Super. 2013)(citing Norriton

East Realty Corp. v. Cent.-Penn Nat’l. Bank, 254 A.2d 637, 638 (Pa.

1969)).

Instantly, Appellant was going to have Epp’s vehicle towed. It is

undisputed that when Appellees went to pick up the vehicle it was not on the

Appellant’s property. Appellee Epp’s has been deprived of her property

without her consent. See HRANEC Sheet Metal, 107 A.2d at 119. We find

sufficient evidence for a claim of conversion.6 See id.; Mahan v. Am-Gard,

Inc., 841 A.2d at 1058.7

Next, Appellant contends the trial court violated the coordinate

jurisdiction rule by ignoring the prior order of March 2, 2012 in the

arbitration on appeal from the decision of the magisterial district justice.

6
“We are not bound by the trial court’s rationale, and may affirm its ruling
on any basis.” The Brickman Group, Ltd. v. CGU Ins. Co., 865 A.2d 918,
928 (Pa. Super. 2004).
7
Given our resolution of this issue, we need not address Appellant’s
remaining sufficiency of the evidence claims.

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The order provided that Appellees could pursue their claim at the arbitration

based upon the theory that Appellant “exercised control over the vehicle

improperly.” Appellant’s Brief at 29. We find no relief is due.

The Uniform Arbitration Act provides for compulsory arbitration and

states in pertinent part:

(a) General rule.─Except as provided in subsection (b),
when prescribed by general rule or rule of court such civil
matters or issues therein as shall be specified by rule shall
first be submitted to and heard by a board of three
members of the bar of the court.

(b) Limitations.─No matter shall be referred under
subsection (a):

(1) which involves title to real property; or

* * *

(2) where the amount in controversy, exclusive of
interest and costs, exceeds $50,000.

* * *

(d) Appeal for trial de novo.─Any party to a matter
shall have the right to appeal for trial de novo in the court.
The party who takes the appeal shall pay such amount or
proportion of fees and costs and shall comply with such
other procedures as shall be prescribed by general rules. .
..

42 Pa.C.S. § 7361(a), (b)(1)-(2), (d).

Pennsylvania Rule of Civil Procedure 1311 provides:

(a) The trial shall be de novo.

(b) An arbitrator may not be called to testify as to what
transpired before the arbitrators.

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Pa.R.C.P. 1311 (emphasis added). The comment to the rule provides, inter

alia, as follows:

The Rules make no change in the unlimited right to trial de
novo, even if it is charged that a defendant abused the
hearing by using it for discovery and without calling any
witnesses. The Supreme Court, in Weber v. Lynch, [ ]
375 A.2d 1278 ([Pa.] 1977), affirming [ ] 346 A.2d 363
([Pa. Super.] 1975), foreclosed consideration of the
matter, holding that the right to trial de novo includes the
right “to proceed to trial with no evidentiary limitations.”
Allegheny County Rule 303 J, which had contained a
limiting provision, was invalidated. The repetition by the
legislature in the Judicial Code of the de novo trial
provision of the Act of 1836 would indicate a legislative
approval of the Weber decision.

Id. cmt.

In Weber, this Court opined:

[A]n appeal from compulsory arbitration is tried de novo
before the court and jury and plaintiffs are free to present
such evidence as they may have whether it was
presented before the arbitrators or not.

It is clear that Rule 303J, in limiting the scope and
content of the subsequent trial, does not permit the ‘full
consideration of the case anew,’ which a trial de
novo requires.

Weber v. Lynch, 346 A.2d 363, 365-66 (Pa. Super. 1975) (emphases

added).

Our Supreme Court has stated:

One of the distinct rules that are encompassed within the
“law of the case” doctrine is the coordinate jurisdiction
rule. Generally, the coordinate jurisdiction rule commands
that upon transfer of a matter between trial judges of
coordinate jurisdiction, a transferee trial judge may not
alter resolution of a legal question previously decided by a

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transferor trial judge. More simply stated, judges of
coordinate jurisdiction should not overrule each other’s
decisions.

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (footnote and citations

omitted). The instant case was not transferred between trial judges within

the same court. It was a trial de novo. See 42 Pa.C.S. § 7361(d).

Therefore, the coordinate jurisdiction rule is not applicable. See Zane, 836

A.2d at 29.

Next, Appellant avers the trial court erred in finding damages in favor

of Appellee, Morrissey, a party to the action, but not the owner of the

vehicle. Appellant’s Brief at 32. We need not address this issue because

“Appellee does not dispute this assertion and would concede that the

judgment should have only been entered in favor of Appellee Epps.”

Appellee’s Brief at 22. We find the trial court erred in entering judgment in

favor of Appellee Morrissey.

Lastly, Appellant claims the court abused its discretion when it ruled in

favor of Appellees prior to Appellant presenting any testimony or

documentation in support of its defenses. Appellant’s Brief at 33. As a

prefatory matter, we consider whether Appellant has waived this issue.

On appeal, Appellant fails to cite to the place in the record where this

claim was preserved before the trial court. See Pa.R.A.P. 2117(c) (requiring

statement of case to specify state of proceedings at which issue sought to be

reviewed on appeal was raised), 2119(e) (requiring same of argument

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section of appellate brief); McNeil v. Owens-Corning Fiberglas Corp.,

680 A.2d 1145, 1149 (Pa. 1996).

This Court has stated:

The argument portion of an appellate brief must include
a pertinent discussion of the particular point raised along
with discussion and citation of pertinent authorities. This
Court will not consider the merits of an argument which
fails to cite relevant case or statutory authority. Failure to
cite relevant legal authority constitutes waiver of the claim
on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (quotation

marks and citations omitted), appeal denied, 69 A.3d 603 (Pa. 2013).

Instantly, Appellant does not cite to the place in the record where the

claim was raised before the trial court. Appellant’s argument is devoid of

any citation to legal authority. Therefore, we find the issue waived. See

Pa.R.A.P. 2117(c); 2119(e); In re Whitley, 50 A.3d at 209.

We affirm the judgment as to Appellee Epps. We vacate and remand

for the court to enter judgment in favor of Appellee Epps only.

Case remanded with instructions. Jurisdiction relinquished.

President Judge Emeritus Bender joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

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Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/22/2015

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