Sabia Landscape, Inc. v. Long, J.

J-A09023-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

SABIA LANDSCAPE, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES LONG, INDIVIDUALLY AND :
D/B/A JIMMY'S TREE SERVICE AND :
D/B/A JIMMY'S TREE AND : No. 852 EDA 2018
LANDSCAPE CONTRACTORS :
:
Appellant :

Appeal from the Judgment Entered April 11, 2018
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 3040 January Term, 2016

BEFORE: KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.: FILED APRIL 29, 2019

James Long (Long), individually and d/b/a Jimmy’s Tree Service and

Jimmy’s Tree and Landscape Contractors (collectively, Appellant), appeals

from the judgment entered in favor of Appellee Sabia Landscape, Inc. (Sabia).

Upon review, we affirm.

Sabia and Appellant are both in the landscaping and snow removal

business. This case arises from the parties’ multiple disputes over unpaid

sums of money Sabia alleged Appellant owed to Sabia. On January 26, 2016,

Sabia filed a complaint against Appellant in which it raised claims of breach of

contract, unjust enrichment, and quantum meruit. Specifically, Sabia alleged

that it had not received $59,427.50 from Appellant for the following:

 $25,000.00 on an oral contract for a personal loan to Appellant;

____________________________________
* Retired Senior Judge assigned to the Superior Court.
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 $9,000.00 on an oral contract for a loan so that Appellant could
pay his backhoe repair bill;

 $6,750.00 as a finder’s fee for the 2013-2014 oral contract for
removing snow from the Roosevelt Mall;

 $5,000.00 as a finder’s fee for the 2014-2015 oral contract for
removing snow from the Roosevelt Mall; and

 $5,000.00 as a finder’s fee for the 2015-2016 oral contract for
removing snow from the Roosevelt Mall.

 $8,677.50 for snow removal services completed by Sabia for
Appellant at a Raymour & Flanigan shopping center.

On February 22, 2017, this case proceeded to a hearing before an

arbitration panel, which ruled in favor of Appellant. On March 17, 2017, Sabia

appealed the arbitration decision to the court of common pleas. On October

10 and 11, 2017, the trial court convened a bench trial; on January 8, 2018,

the trial court entered “judgment” in favor of Sabia in the amount of

$60,718.35. The trial court concluded that valid oral contracts existed

between the parties for the disputed amounts, and that Appellant had not fully

resolved these debts with Sabia. In reaching the award of $60,718.35, the

trial court subtracted $20,000.00 from Sabia’s original damages claim of

$59,427.50 because Sabia admitted at trial that it had received $20,000.00

from Appellant in a mix of various cash and check payments. Thus, the trial

court awarded Sabia $39,427.50 plus three years of interest (per the terms

of the contracts), for a total award of $60,718.35.

On January 17, 2018, Appellant filed timely post-trial motions, which

the trial court denied on February 9, 2018. On February 27, 2018, Appellant

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filed a notice of appeal from the order denying its post-trial motions. Both

Appellant and the trial court have complied with Pennsylvania Rule of

Appellate Procedure 1925.

On April 10, 2018, this Court issued an order directing Appellant to

praecipe the trial court to enter judgment, as the trial court’s entry of

“judgment” on January 8, 2018, prior to the filing of post-trial motions, was

premature and consequently, null and void. Generally, an appeal will not lie

from a trial court’s denial of post-trial motions when the underlying verdict

has not been reduced to judgment. See Shonberger v. Oswell, 530 A.2d

112, 113 n.1 (Pa. Super. 1987) (where a trial court enters judgment prior to

disposition of timely filed post-trial motions, the judgment is premature and

void.). On April 11, 2018, the trial court entered judgment.

On appeal, Appellant presents the following issues for review:

1. “Interpreting the terms of a contract is a question of law,
thus implicating a de novo standard of review and a plenary
scope of review.” Commonwealth v. UPMC, 188 A.3d 1122,
1132 (Pa. 2018). This de novo standard of review and plenary
scope of review also applies to claims for quantum meruit and
unjust enrichment. See Meyer, Darragh, Buckler, Bebenek &
Eck, P.L.L.C., 179 A.3d 1093, 1098 (Pa. 2016).

The “de novo standard of review permits the court to determine
the case anew, including matters pertaining to testimony and
other evidence.” Bowling v. Office of Open Records, 753 A.3d,
n.15 (Pa. 2013). The plenary scope of review allows this Court
to “review the entire record in making its decision” Kripp v.
Kripp, 849 A.2d 1159, n.5 (Pa. 2004); and it “need not defer to
the conclusions of the trial court and [is] free to draw [its]
own inferences.” Abbott v. Schnader, [] 805 A.2d 547, 553
[(Pa. Super. 2002).]

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Did the [t]rial [c]ourt err in arguing that its findings on contract
interpretation, quantum meruit, and unjust enrichment were
entitled to an “abuse of discretion” standard of review and not
subject to plenary review?

2. [Sabia] asserted 6 separate claims (plus interest) against
[Appellant]. At trial, however, [Sabia] admitted under cross-
examination that it had in fact been paid for 3 of the 6 claims,
which themselves totaled $20,800. [Sabia] was thus judicially
estopped from continuing to seek repayment of these 3 claims
totaling $20,800. The [t]rial [c]ourt however awarded [Sabia] the
full $20,800 on these 3 claims that Appellee admitted prior
payment.

Therefore, was the [t]rial [c]ourt’s award of $20,800 on the 3
claims where [Sabia] had admitted, in court and under oath, that
it had already been paid years earlier a clear error of law and/or
abuse of discretion?

3. The parties executed 3 separate written contracts for each
of the 3 snow-seasons they partnered together on for the
Roosevelt Mall (Year 1 – 2012-2013; Year 2 – 2013-2014; and
Year 3 – 2014-2015). Therefore, the parties’ written contracts
control as to all terms and obligations identified in and arising from
their respective contracts.

Therefore, did the [t]rial [c]ourt error in disregarding the parties’
3 separate written contracts, and instead “finding” an oral contract
whose terms were diametrically opposed to the parties’ written
contracts and intentions?

4. Under Pennsylvania law, an oral contract will not be
recognized without evidence of a prior “extensive course of
dealing” or “longstanding business relationship” between the
parties.

Here, the parties had no prior business relationship before the
2012-2015 time at issue except for one snow plow job at one
shopping center 16 years prior during the “Blizzard of 1996.”

Therefore did the Trial Court commit clear error of law and/or
abuse of discretion in finding “an extensive course of dealing
between the parties” to support an oral multi-year contract as to
all disputed terms in 2012-2015?

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5. During the parties’ Year 2 Contract (2013-2014), [Sabia]
accepted [Appellant]’s offer to “flip” (i.e., assign) a $6,000 “Flat
Fee” season snow-removal contract for a Raymour & Flan[i]gan
furniture location one mile from [Sabia’s] home. Under the terms
of a “Flat-Fee” snow removal contract, the snowplow contractor
agrees to provide all snow plow services for the negotiated “Flat
Fee,” as opposed to an hourly “time and materials” contract.

Prior to initiating suit, [Sabia] never denied the Raymour &
Flan[i]gan contract it accepted was a “Flat Fee” contract. [Sabia]
also admitted that it had no contemporaneous letters, emails,
texts, memos, delinquent payment notices, or other documents
memorializing its belief that it was an “hourly/time and materials”
contract and not a “Flat Fee” agreement.

In addition, [Sabia] admitted that it never made any pre-suit claim
to [Appellant] for additional “hourly/time and materials” when the
parties were “settling up” and finalizing their negotiations for their
10/17/2014 Year 3 Contract.

Thus, did the [t]rial [c]ourt err in finding an “oral contract” that
required [Appellant] to pay [Sabia] on an “hourly/time and
material basis” for the Raymour & Flan[i]gan “Flat Fee” contract?

6. [Appellant] received an $18,000 loan from [Sabia] which
required repayment in 9 equal monthly installments (Feb.-Oct.
2014) of $2,500 each ($2,000 in repayment of principal and $500
for interest). [Appellant] made all the required payments with the
final payment made on October 5, 2014. [Sabia] now claims the
loan was for $25,000 and remains unpaid.

[Sabia] however never raised this claim during the parties’ heated
negotiations leading up to execution of their 3rd and final . . .
contract signed on October 17, 2014 (12 days after [Appellant]
made its 9th and final payment on the loan). In fact, [Sabia]
never raised this claim for over 15 months after the parties’ final
contract of 10/17/2014, raising it for the first time in its January
26, 2016 Complaint here.

Having failed to raise this claim during the heated negotiations
leading to the parties’ final contract of 10/17/14, [Sabia]’s claim
is barred by the doctrines of Accord & Satisfaction, Full and Final
Payment, Full Performance and/or Substantial Performance,

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Release, and Failure of Consideration. Therefore, did the [t]rial
[c]ourt’s award of $25,000 and interest on the purportedly unpaid
loan constitute a clear error of law and abuse of discretion
requiring JNOV and/or a New Trial on all issues.

7. [Appellant] entered into three written contracts with [Sabia]
for each of the 3 snow seasons in question at the Roosevelt Mall:
2012 – 2013; 2013 – 2014; and 2014 – 2015. None of the parties’
written agreements provided for a “Finder’s Fee” in perpetuity for
the Roosevelt Mall contract, or included a “Non-Compete”
provision that disallowed [Appellant] from competing on the
contract in the future. Thus, did the [t]rial [c]ourt err in finding
that [Appellant] was bound by an “oral contract” to pay a “Finder’s
Fee” in perpetuity on the Roosevelt Mall contract, including a
$5,000 Finder’s Fee for the 2015 – 2016 snow season?

Appellant’s Brief at 6-10 (emphasis in original).

The trial court correctly observed that Appellant “has essentially

overcomplicated what is a very straightforward analysis.” Trial Court Opinion,

7/31/18, at 13. We further note that our rules of appellate procedure caution

against Appellant’s chosen strategy for its statement of the questions

involved. See Pa.R.A.P. 2116(a) (note) (“Although the page limit on the

statement of questions involved was eliminated in 2013, verbosity continues

to be discouraged. The appellate courts strongly disfavor a statement that is

not concise.”).

To begin, we recognize our standard of review:

Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of the trial judge
in a non-jury case must be given the same weight and effect on
appeal as the verdict of a jury, and the findings will not be
disturbed on appeal unless predicated upon errors of law or
unsupported by competent evidence in the record. Furthermore,

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our standard of review demands that we consider the evidence in
a light most favorable to the verdict winner.

Levitt v. Patrick, 976 A.2d 581, 588-89 (Pa. Super. 2009). “[W]e will

reverse a trial court’s denial of a motion for JNOV or a new trial only if we find

an abuse of discretion or an error of law that controlled the outcome of the

case.” Walnut St. Assocs., Inc. v. Brokerage Concepts, Inc., 982 A.2d

94, 97 (Pa. Super. 2009). Additionally, we recognize that with respect to

claims involving contract interpretation:

Because contract interpretation is a question of law, this Court is
not bound by the trial court’s interpretation. Our standard of
review over questions of law is de novo and to the extent
necessary, the scope of our review is plenary as the appellate
court may review the entire record in making its decision.
However, we are bound by the trial court’s credibility
determinations.

Gillard v. Martin, 13 A.3d 482, 487 (Pa. Super. 2010).

Appellant first argues that we must apply a de novo standard of review

to issues relating to contract interpretation. As stated above, this is the

established standard of review in such matters. See id. Consequently, this

issue does not warrant further discussion.

Second, Appellant argues that the trial court erred in awarding Sabia

approximately $20,000.00 which Sabia admitted to receiving. As the trial

court plainly indicated, Sabia admitted to having received from Appellant

$20,000.00 in various payments for debts owed. See Trial Court Opinion,

7/31/18, at 8; see also N.T., 10/10/17, at 40-41, 124-27. Thus, Sabia

reduced its damages request by $20,000.00 from $59,427.50 to $39,427.50,

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which is exactly what the trial court awarded to Sabia, plus interest. To the

extent Appellant now argues that the trial court did not account for this

$20,000.00, the assertion is perplexing and completely belied by the record.

Accordingly, Appellant’s second issue is meritless. See Walnut St. Assocs.,

982 A.2d at 97.

In its third issue, Appellant argues that the trial court erred in

disregarding the parties’ three separate written contracts for the three snow

seasons they partnered together for snow removal at the Roosevelt Mall.

Appellant maintains the trial court improperly relied on alleged oral contracts

that conflicted with the terms of written contracts. In its related claim,

presented in its fourth issue, Appellant argues that the trial court erred in

finding an extensive course of dealing between the parties to support an oral,

multi-year contract as to all disputed terms relating to the Roosevelt Mall

contracts.

Appellant has waived its third and fourth issues. Appellant did not raise

its third and fourth issues in its Pennsylvania Rule of Appellate Procedure

1925(b) statement. See Statement of Matters Complained of on Appeal,

3/23/18. It is well-settled that “[i]ssues not included in the Statement and/or

not raised in accordance with the provisions of this paragraph (b)(4) are

waived.” Pa.R.A.P. 1925(b)(4)(vii). This Court recently summarized the

prevailing law:

Pa.R.A.P. 1925(b) provides that a judge entering an order giving
rise to a notice of appeal “may enter an order directing the

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appellant to file of record in the trial court and serve on the judge
a concise statement of the errors complained of on appeal
(‘Statement’).” Rule 1925 also states that “[i]ssues not included
in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.” Pa.R.A.P.
1925(b)(4)(vii). In Commonwealth v. Lord, [] 719 A.2d 306
([Pa.] 1998), our Supreme Court held that “from this date
forward, in order to preserve their claims for appellate review,
[a]ppellants must comply whenever the trial court orders them to
file a Statement of Matters Complained of on Appeal pursuant to
Rule 1925. Any issues not raised in a 1925(b) statement will be
deemed waived.” Lord, 719 A.2d at 309; see also
Commonwealth v. Castillo, [] 888 A.2d 775, 780 ([Pa.] 2005)
(stating any issues not raised in a Rule 1925(b) statement are
deemed waived). This Court has held that “[o]ur Supreme Court
intended the holding in Lord to operate as a bright-line rule, such
that ‘failure to comply with the minimal requirements of Pa.R.A.P.
1925(b) will result in automatic waiver of the issues raised.’”
Greater Erie Indus. Dev. Corp. v. Presque Isle Downs, Inc.,
88 A.3d 222, 224 (Pa. Super. 2014) (en banc) (emphasis in
original) (quoting Commonwealth v. Schofield, [] 888 A.2d
771, 774 ([Pa.] 2005).

“[I]n determining whether an appellant has waived issues on
appeal based on non-compliance with Pa.R.A.P. 1925, it is the trial
court’s order that triggers an appellant’s obligation ... therefore,
we look first to the language of that order.” In re Estate of
Boyle, 77 A.3d 674, 676 (Pa. Super. 2013).

U.S. Bank, N.A. for Certificateholders of LXS 2007-7N Tr. Fund v. Hua,

193 A.3d 994, 996–97 (Pa. Super. 2018).

Here, the trial court ordered Appellant to file a Rule 1925(b) statement

on March 12, 2018 and Appellant did so on March 23, 2018. Appellant,

however, did not include its third and fourth issues in its Rule 1925(b)

statement, and consequently, the trial court did not address the issues in its

Rule 1925(a) opinion. Accordingly, Appellant has failed to preserve its third

and fourth issues for our review.

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In its fifth issue, Appellant argues that the trial court erred in concluding

that the parties had a contract for Sabia to perform snow removal at a

Raymour & Flanigan shopping center on behalf of Appellant, at an hourly rate.

Appellant maintains that the parties had agreed for Sabia to perform the work

for Appellant for a flat fee of $6,000.00.

“It is well settled that in the case of a disputed oral contract, what was

said and done by the parties as well as what was intended by what was said

and done by them are questions of fact for the [fact finder].” United Envtl.

Grp., Inc. v. GKK McKnight, LP, 176 A.3d 946, 963 (Pa. Super. 2017)

(quoting Solomon v. Luria, 246 A.2d 435, 438 (Pa. Super. 1968)). This

Court has explained:

[T]he question of whether an undisputed set of facts establishes
a contract is a matter of law. It is also well settled that in order
for an enforceable agreement to exist, there must be a “meeting
of the minds,” whereby both parties mutually assent to the same
thing, as evidenced by an offer and its acceptance. It is equally
well established that an offer may be accepted by conduct and
what the parties do pursuant to the offer is germane to show
whether the offer is accepted. In cases involving contracts wholly
or partially composed of oral communications, the precise content
of which are not of record, courts must look to the surrounding
circumstances and course of dealing between the parties in order
to ascertain their intent. We must, therefore, look to the parties’
course of conduct to ascertain the presence of a contract.

Id. (quoting Prieto Corp. v. Gambone Const. Co., 100 A.3d 602, 609 (Pa.

Super. 2014)).

The trial court summarized the parties’ arguments relating to the

Raymour & Flanigan snow removal as follows:

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[Sabia] alleged that [it] negotiated an oral contract with
[Appellant] involving snow removal services at the Raymour and
Flanigan shopping center. [Long, Appellant’s owner,] testified
that he received the Raymour and Flanigan contract as a seasonal
contract (flat fee) for $6,000 and that he offered it to [Sabia].
N.T., 10/10/17, at] 40. [Appellant] claimed that [Sabia] agreed
to cover the contract for $6,000, but [Sabia’s owner] testified that
he agreed to cover the contract at a reduced hourly rate. N.T.[,
10/11/17, at] 41; N.T.[, 10/10/17, at] 63. [Sabia]’s calculation
of the hourly rate for the Raymour and Flanigan contract [resulted
in a] total balance owed by [Appellant] of $8,677.50. [Sabia]
claims that [Appellant] never paid [it] for this work.

Trial Court Opinion, 7/31/18, at 7.

In rejecting Appellant’s claim that there was a flat fee agreement for

snow removal at the Raymour & Flanigan shopping center, the trial court

explained:

[Sabia’s owner] testified that [Long] asked him to help plow
Raymour and Flanigan’s parking lot, which also contains a Trader
Joe’s and a liquor store. N.T.[, 10/10/17, at] 34-48, 43. [Sabia]
agreed to do it by the hour for [Appellant] at a reduced rate. [Id.
at] 63-64. [Long] asked [Sabia] to do it because he did not have
the time to do it himself. N.T.[, 10/10/17, at] 163. [Sabia]
produced invoices from the work that [it had] mailed to
[Appellant]’s address. N.T.[, 10/10/17, at] 48-49. [Long]
testified that he was paid all of the money from this job, under his
contract with the contractor for that property. [] N.T.[,10/11/17,
at] 46.

Thus, based on this testimony, this Court found that [Sabia]
performed the work for [Appellant]. It’s reasonable that [Sabia]
would seek compensation for this work. [Appellant’s owner]
testified that he kept the money from the job himself. It is highly
unlikely that [Sabia] would have offered to do this work for free,
which is supported by the existence of [Sabia]’s invoices. [Sabia]
provided sufficient evidence to show the existence of an oral
contract here.

Id. at 16-17.

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Upon review, we find that the trial court did not err in concluding that

Sabia and Appellant had an oral contract for Sabia to remove snow from the

Raymour & Flanigan shopping center at an hourly rate, as opposed to a flat

fee. See GKK McKnight, 176 A.3d at 963. Appellant’s claim amounts to

nothing more than a challenge to the trial court’s credibility determination

relating to the evidence presented by the parties about whether the Raymour

& Flanigan oral contract provided for an hourly rate or flat fee. Pertinently,

Appellant has not cited any testimony or other evidence indicating that the

Raymour & Flanigan contract was a flat flee agreement. The trial court, sitting

as the factfinder, resolved questions of credibility in favor of Sabia, who

presented evidence reflecting that the contract contemplated that

compensation would be paid at an hourly rate; we are bound by this

determination. See id. Accordingly, Appellant’s fifth issue lacks merit.

In its sixth issue, Appellant argues that the trial court erred in concluding

that Sabia loaned Appellant $25,000.00, and that Appellant has never satisfied

this debt. Appellant asserts that Sabia only loaned it $18,000, and Appellant

had repaid the loan.

In rejecting this claim, the trial court explained:

At trial, [Appellant] did not dispute the fact that [it] asked
[Sabia] for a loan. [Sabia] lent the money, in cash. However,
there was a dispute about the amount of money [Sabia] loaned to
[Appellant]. [Long] testified that he requested the loan from
[Sabia], but that he only borrowed $18,000. N.T.[, 10/11/17, at]
28. [Sabia] alleged that [Appellant] borrowed $25,000 with
interest. N.T., 10/10/17, at 24-26. This court found that [the
testimony of Sabia’s owner] about the amount of the loan was

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credible and that [Long’s testimony] was not credible. Both
parties discussed terms of repayment. [Appellant] promised to
pay the loan back at 2% interest per month or 24% per year. [Id.
at] 25-26. [Sabia] supported [its claim] about the loan amount
with testimony from [its] company controller Sal Barilia. Mr.
Barilia confirmed that he was notified about the $25,000 loan and
kept track of the payments made by [Appellant]. [Id. at 161-63].
Mr. Barilia stated that it wasn’t uncommon for [Sabia’s owner] to
lend money from his business to others. Id. [Appellant]’s
company controller Jennifer Long couldn’t provide any insight into
the loan amount from his perspective. She admitted that she
wouldn’t have known whether the loan was for $25,000 or
$18,000. N.T.[, 10/11/17, at] 159-60.

Thus, based on the evidence, this [c]ourt found that [Sabia]
presented sufficient evidence to show that [it] lent [Appellant]
$25,000 and that Appellant has not paid it back.

Trial Court Opinion, 7/31/18, at 15.

Upon review, we find no basis to disturb the trial court’s determination

that Sabia loaned Appellant $25,000.00 and Appellant did not satisfy this debt.

The testimony of Mr. Sabia revealed that he loaned Appellant $25,000.00.

N.T., 10/10/17, at 24-26. Mr. Barilia’s testimony corroborated the loan

amount of $25,000 and confirmed that Sabia had not received money in

satisfaction of the debt. Id. at 161-63. Once again, Appellant’s claim is

nothing more than a challenge to the credibility determination made by the

trial court regarding the loan amount and whether Appellant satisfied the debt.

Appellant asks this Court to reweigh the evidence in its favor. However, the

trial court, sitting as factfinder, resolved these questions of credibility in favor

of Sabia, who presented evidence of an oral contract for a $25,000.00 loan,

and of Appellant’s failure to repay that loan. We are bound by the trial court’s

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findings. See GKK McKnight, 176 A.3d at 963. Accordingly, Appellant’s

sixth issue is meritless.

Finally, Appellant argues that the trial court erred in concluding that the

parties’ contract relating to snow removal at the Roosevelt Mall included a

“Finder’s Fee in perpetuity” and a “Non-Compete provision that disallowed

[Appellant] from competing on the contract in the future.” Appellant’s Brief

at 61-62. Appellant has waived this issue.

“The argument portion of a brief must include pertinent discussion of

the point raised as well as citations to relevant authority.” Iron Age Corp.

v. Dvorak, 880 A.2d 657, 665 (Pa. Super. 2005); Pa.R.A.P. 2119(a)-(b). The

“[f]ailure to develop an argument results in waiver of the claim.” Plastipak

Packaging, Inc. v. DePasquale, 937 A.2d 1106, 1112 (Pa. Super. 2007).

“This Court will not develop arguments on the behalf of an appellant or comb

the record for factual underpinnings to support an appellant’s position.”

Keller v. Mey, 67 A.3d 1, 7 (Pa. Super. 2013).

In its discussion of the final issue, which is comprised of a mere 12 lines

of text, Appellant cites no authority and only vaguely describes a cognizable

issue for our review. Appellant’s argument is severely underdeveloped,

tersely worded, and in no way explains how the trial court erred with respect

to the issue Appellant has attempted to raise. In sum, Appellant provides no

basis upon which this Court could grant relief. Given these deficiencies, we

find waiver. See J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d

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402, 411 (Pa. Super. 2012) (holding that issue on appeal is waived where

appellant fails to develop argument of trial court error).

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/29/19

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