J-S15001-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DONNER FINANCIAL GROUP, LLC, A/K/A IN THE SUPERIOR COURT OF
UNITED CHECK CASHING PENNSYLVANIA
v.
AUTO TAGS BY MAVERICK, INC. AND
FIRAS NUSIRE AND SAMIRE NUSIRE
Appellants No. 2886 EDA 2016
Appeal from the Judgment Entered August 23, 2016
In the Court of Common Pleas of Bucks County
Civil Division at No(s): 2014-02002
BEFORE: BOWES, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED April 25, 2017
Auto Tags by Maverick, Inc. and Firas Nusire and Samire Nusire
(collectively “Appellants”), appeal from judgment entered in favor of Donner
Financial Group, LLC, a/k/a United Check Cashing (“Donner”), in the amount
of $26,000, plus interest. We affirm.
The following facts underlie this dispute. In December 2010,
Appellants and Donner were separately engaged in the check-cashing
business. Although the parties were competitors to a certain extent, Donner
aided Appellants’ business by purchasing their checks, on a wholesale basis,
for a nominal fee since Appellants did not otherwise have the support of a
bank. In addition, in order to meet their customers’ check-cashing needs
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during the 2011 tax season, Appellants sought, and received, an interest-
free, $30,000 loan from Donner. At the conclusion of the 2011 tax season,
Appellants repaid that loan.
In December 2012, Appellants approached Donner to discuss another
interest-free loan. Subsequently, Donner furnished Appellants with three
separate payments totally $26,000: 1) on December 24, 2012, Donner
provided Appellants with $15,000; 2) on January 11, 2013, Donner supplied
another $6,000; and, 3) on January 17, 2013, Donner gave Appellants an
additional $5,000. The parties did not reduce the terms of their loan
agreement to writing. However, Donner documented the payments by
generating three chits detailing the amount and date of each disbursement.
Appellants did not repay the $26,000 it received from Donner.
Donner initiated this matter to recover the money due and owing from
the advances it provided Appellants. A bench-trial was held and Appellants
argued that the money at issue did not represent the proceeds of a loan, but
rather, Donner’s contribution to a joint-venture that the parties had agreed
to establish. The court afforded the parties time to reach a settlement,
which did not materialize. It heard closing arguments on March 9, 2016.
Shortly thereafter, the court found in favor of Donner and awarded it
$26,000, plus 6% pre-judgment interest calculated from June 1, 2013.
Appellants filed post-trial motions, which were denied, and after
judgment was entered on August 23, 2016, timely filed a notice of appeal.
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Appellants complied with the trial court’s order to file a Rule 1925(b)
statement of errors complained of on appeal, and the court authored its Rule
1925(a) opinion. This matter is now ready for our review.
Appellants presents four questions for our consideration:
1. Whether the evidence was insufficient to support a verdict in
favor of [Donner] in that the conduct of [Donner] was far more
consistent with the money outlaid being an investment rather
than a loan.
2. Whether the verdict was against the weight of the evidence in
that the weight of the evidence suggested that this was an
investment as opposed to a loan.
3. Whether the court erred in admitting Exhibit P-2.
4. Whether the court erred in assessing interest from June 1, 2013
to the date of verdict as there was no factual or legal support for
the award of interest or for the award of interest to begin from
that date.
Appellants’ brief at 4 (unnecessary capitalization omitted).
At the outset, we note that although Appellants purport to challenge
the sufficiency of the evidence supporting the trial court’s decision in
Donner’s favor, their argument, as discussed infra, only disputes the weight
of the evidence. Since Appellants did not develop their sufficiency challenge
in a meaningful fashion capable of review, we find that claim waived.
McEwing v. Lititz Mut. Ins. Co., 77 A.3d 638, 646-647 (Pa.Super. 2013).
We review a weight of the evidence claim in light of the following
guidelines:
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[a]ppellate review of a weight claim is a review of the [trial
court’s] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear and see
the evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the
verdict is against the weight of the evidence. One 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.
Gold v. Rosen, 135 A.3d 1039, 1041-1042 (Pa.Super. 2016) (citation
omitted). Further, the court “is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.” Haan v. Wells,
103 A.3d 60, 70 (Pa.Super. 2014) (citation omitted).
The trial court determined that the three payments made to Appellants
reflected a business loan. It reviewed the testimony offered by Donner and
Appellants and found that Terry Trexler, Donner’s co-owner, credibly
testified that the transaction was a loan. It noted that Mr. Trexler provided
insight into the general manner in which the parties conducted business,
including a previous $30,000 loan that he supplied Appellants. The court did
not credit the testimony of Mr. or Mrs. Nusire about the joint venture.
Rather, it found Mr. Nusire’s statements were not supported by the record,
and that Mrs. Nusire’s “memory and knowledge were uncertain and
considerably selective.” Trial Court Opinion, 11/4/16, at 9.
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Appellants present their purported sufficiency claim and their challenge
to the weight of the evidence together. They assail the trial court’s ruling on
the grounds that the evidence presented is “more consistent with the funds
paid being an investment as opposed to a loan[.]” Appellants’ brief at 9. In
this vein, Appellants assert that the court discounted evidence suggesting
that Donner distributed staggered payments, that it failed to create a written
repayment plan, and that Donner discussed its role in a future business.
When considered properly, Appellants continue, the evidence reflects the
payments were “more likely” an investment. Id. at 10. Appellants posit
that the trial court failed to consider any evidence that “ran contrary to the
loan theory,” such as testimony that the parties had discussed business
arrangements and had met to scout potential locations. Id. Appellants
conclude that “[b]ased on the uncontradicted evidence that the parties were
involved in a joint venture,” the judgment was against the weight of the
evidence. Id. at 13.
Instantly, the trial court credited Mr. Trexler’s testimony and found Mr.
Nasire’s testimony incredible. Mr. Trexler observed that he had provided
Appellant with an interest-free $30,000 loan in 2011 after Appellant had
requested help for the upcoming 2012 tax season. N.T. Trial, 10/27/15, at 9.
He stated that Mr. Nasire repaid that loan. Id. at 14. In addition, Mr.
Trexler testified that he lent Appellant a total of $26,000 in 2012 and 2013.
Id. at 18-22. He characterized the payments as a loan, and expected
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repayment after the 2013 tax season, as those were the terms of their
previous agreement. Id. at 22-23. Mr. Trexler admitted that the parties
had discussed cooperative business relationships, but that he was not
interested in launching such an operation with Appellant. Id. at 42-44; 46-
47. The court also considered the testimony of Mandy Cloud and Deborah
Trexler, who reiterated that the payments totaling $26,000 were a business
loan, and that Donner expected Appellant to repay that money following tax
season. Id. at 97-99; 107-108.
In light of this evidence, we are not persuaded that the court abused
its discretion in determining that the verdict was not against the weight of
the evidence. Although Mr. Trexler conceded that the parties had discussed
the possibility of a joint venture, the testimony credited by the court
established that the three payments were intended as a loan to be repaid
following tax season. This conclusion is bolstered by the party’s previous
business dealing during the prior tax season. Moreover, Appellants
produced no evidence, other than the Mr. and Mrs. Sumire’s testimony, that
the payments were a business investment or that the parties were engaged
in a joint venture. As noted above, the trial court did not credit that
testimony. Haan, supra. Thus, the court did not abuse its discretion in this
regard, and Appellants are not entitled to relief.
Appellants next claim that the trial court erred in admitting exhibit P-2
since that document purportedly represents a negotiation and compromise
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offered to Donner by Mr. Samire. We apply a deferential standard of review
to decisions regarding the admissibility of evidence. We grant the trial court
“broad discretion, and we will only reverse a trial court’s decision to admit or
deny evidence on a showing that the trial court clearly abused its
discretion.” Commonwealth v. Talbert, 129 A.3d 536, 539 (Pa.Super.
2015) (citation omitted). An abuse of discretion “is not merely an error in
judgment, but an overriding misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-
will or partiality, as shown by the evidence of record.” Id.
Pennsylvania Rule of Evidence 408, governing compromise offers and
negotiations, reads:
(a) Prohibited Uses. Evidence of the following is not admissible –
on behalf of any party – either to prove or disprove the
validity or amount of a disputed claim or to impeach by a
prior inconsistent statement or a contradiction:
(1) Furnishing, promising, or offering – or accepting,
promising to accept – a valuable consideration in
compromising or attempting to compromise the claim;
and
(2) Conduct or a statement made during compromise
negotiations about the claim.
(b) Exceptions. The court may admit this evidence for another
purpose, such as proving a witness’s bias or prejudice,
negating a contention of undue delay, or proving an effort to
obstruct a criminal investigation or prosecution.
Pa.R.E. 408.
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The trial court observed that it was “unclear that Exhibit P-2
constituted an offer to settle within the context of settlement negotiations
between the parties.” Trial Court Opinion, 11/4/16, at 10. It opined that
“the exhibit was apparently proffered by [Donner’s] counsel as an implied
admission by [Appellant] Mr. Nusire that he had entered into a loan
agreement with [Donner], and that [Appellants] were obligated to repay the
$26,000 loan.” Id. The court notes that, although Appellants objected to
the admission of P-2, they did not object to questions and answers raised in
regard to that document, and thus, it found the exhibit was properly
admitted.
Appellants argue that the court abused its discretion in admitting P-2
since it properly objected to the document as representing a compromise
offer and negotiation, and that its admission permitted the court to consider
it as evidence. We agree with Appellants that the court abused its discretion
in admitting exhibit P-2. However, we find this error to be harmless.
A review of exhibit P-2 demonstrates that it was an offer Mr. Nusire
made to Donner to reconcile the $26,000 debt Appellants incurred. It
stated, in part, “Mr. Trexler is now making request for the $26,000.00 to be
paid back by Mr. Nusire, and since Mr. Nusire is unable to pay back the
lumpsum [sic],” and described Mr. Nusire’s proposed compromise, wherein
he would make “equal monthly payments of $1,000.00 (one thousand
dollars) due on every 15th of every month for 26 months[.]” Exhibit P-2 at
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unnumbered 1. Undoubtedly, this document represents an attempt by Mr.
Nusire to negotiate and compromise the disputed debt, and thus, it falls
squarely within the purview of Rule 408. Moreover, the trial court itself
asserted that Donner likely proffered the exhibit as an admission as to the
validity and amount of the disputed claim. Nor does our review of the record
indicate that the document was offered to prove bias or negate a contention
of undue delay. Hence, we find the trial court abused its discretion in
admitting exhibit P-2.
Nevertheless, we find the trial court’s error was harmless. We have
long held that, “[f]or a ruling on the admissibility of evidence to constitute
reversible error, it must have been harmful or prejudicial to the complaining
party.” Koller Concrete, Inc. v. Tube City IMS, LLC, 115 A.3d 312, 316
(Pa.Super. 2015) (citation omitted). In this case, Donner presented
substantial evidence that the payments made to Appellants in 2012 and
2013 constituted a loan to be repaid under the same terms as the loan
Donner provided the year prior. In addition, the trial court did not expressly
rely on the exhibit in its decision. Rather, the court focused its analysis on
the credibility of the witnesses and the common business practices between
the parties. As such, Appellants are not entitled to relief.
Finally, Appellants assail the court’s imposition of pre-judgment
interest from June 1, 2013. In some instances, we review an award of
prejudgment interest for an abuse of discretion. Cresci Const. Services,
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Inc. v. Martin, 64 A.3d 254, 258 (Pa.Super. 2013). However, prejudgment
interest is a matter of right where “the breach consists of a failure to pay a
definite sum in money[.]” Id. at 259 citing Restatement (Second) of
Contracts § 354. In cases where the damages are “liquidated and certain,”
prejudgment interest is allowed “at the legal rate from the date that
payment was wrongfully withheld[.]” Pittsburgh Const. Co. v. Griffith,
834 A.2d 572, 590 (Pa.Super. 2003) (citation omitted). The maximum rate
of interest applicable to a loan for $50,000 or less in cases where no express
contract exists is six percent. 41 P.S. § 201.
Appellants argue that the trial court erred in awarding prejudgment
interest since the parties did not agree on a date for repayment, and the
court imposed the maximum possible interest rate. They insist that the
record does not support a finding that interest should apply as of June 1,
2013. Further, they assert that, since the previous loan was interest free,
imposing the maximum interest rate here would be unfair. We disagree.
Here, the trial court found that Appellants had failed to repay a loan in
the amount of $26,000. Appellants did not dispute this amount, but rather,
argued the sum reflected an investment rather than a loan. The testimony
at trial revealed that that the loan was repayable “in May or June of ’13.”
N.T. Trial, 10/27/15, at 31; see also id. at 107-108.
Since Appellant failed to repay a definite amount of money, Donner
had a right to pre-judgment interest as of the date that payment was
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unlawfully withheld. Cresci, supra; Griffith, supra. The record supports
the trial court’s determination that repayment was due sometime in May or
June of 2013. Furthermore, the court imposed a rate of interest within the
range provided by statute. We find no error in the court’s decision to
impose pre-judgment interest at a rate of six-percent, beginning on June 1,
2013. Thus, this claim does not warrant relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/25/2017
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