J-A21019-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JULIAN TONEATTO : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PANKAI SHETH, JAYPRAKASH :
SHETH, 501 HOSPITALITY :
MANAGEMENT, LAURA COOPER, JAY : No. 3505 EDA 2018
SMITH :
:
Appellants
Appeal from the Judgment Entered November 7, 2018
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): 2016-02679
BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 28, 2019
Appellants, Pankai Sheth, Jayprakash Sheth, 501 Hospitality
Management, Laura Cooper, and Jay Smith, appeal from the order filed on
November 7, 2018, entering an award in the amount of $60,754,24 in favor
of Julian Toneatto (Toneatto), representing damages, pre-judgment interest,
attorneys’ fees, and costs for breach of an implied contract following a jury
trial.1 Upon review, we affirm.
The trial court set forth a brief summary of the facts and procedural
history of this case as follows:
An attorney representing [Appellants] in connection with real
property litigation in Lancaster County introduced them to []
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1 This Court quashed Appellants’ separate appeal from a November 2, 2018
order that denied their post-trial motion seeking a new trial.
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Toneatto [] who is a registered professional engineer in Lafayette
Hill, Montgomery County. After the introduction, [Toneatto]
mailed to [Pankai] Sheth’s home a proposal to provide expert
engineering services. The proposal stated [Toneatto’s] hourly
rate, included provisions addressing late fees, interest and
attorneys’ fees and specified that [Toneatto] would take direction
from the attorney. [Toneatto] requested that [Pankai] Sheth sign
the document and submit an initial payment of $3,000.00.
[Toneatto] received back the proposal and the requested check.
The check came from Jay Smith[, Appellants’ agent from 501
Hospitality Management (501)]. [Toneatto] did not notice at the
time that [Pankai] Sheth had not signed the proposal.
Nevertheless, the check cleared and the attorney representing
Appellants advised [Toneatto] to start his work. During that work,
[Toneatto] sent invoices to [Pankai] Sheth at his home and to
[Jay] Smith on behalf of 501. He also sent his expert report to
[Pankai] Sheth’s home and two supplemental reports to the
attorney representing [Appellants].
[Appellants] did not make any payments other than the initial
retainer. [Toneatto] filed a pro se complaint [in the trial] court
before retaining counsel. The matter proceeded to trial, at which
a jury found in favor of [Toneatto], and against [Appellants], and
awarded him $18,723.00 in damages.
[Appellants] filed a [m]otion for [n]ew [t]rial or [j]udgment
[notwithstanding verdict (JNOV)], which [the trial] court denied
by [o]rder dated November 2, 2018. [Toneatto] also filed a
post-verdict motion, seeking pre-judgment interest, attorneys’
fees and costs. [The trial c]ourt granted the motion in an [o]rder
dated November 7, 2018, entering [total] judgment for [Toneatto]
in the amount of $60,754.24.
[Appellants] appealed both orders and later produced a
court-ordered [concise] statement of [errors complained of on
appeal] under Pennsylvania Rule of Appellate Procedure 1925(b).
[Appellants] also filed a [supplemental Rule 1925(b), which the
trial court accepted despite Appellants’ failure to request
permission to do so. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 22, 2019.]
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Trial Court Opinion, 1/22/2019, at 1-3 (footnotes and record citations
omitted).
On appeal, Appellants present the following issues for our review:
1. Is it error to ignore a lack of service?
2. Is it error to ignore the Dead Man Rule?
3. Is it error to ignore spoliation?
4. Is it error to ignore a lack of “Meeting of the Minds”?
5. Is it error to ignore hearsay?
6. Is it error to ignore jury speculation?
7. Is it error to ignore a failure to reply to New Matter?
8. Is it error to ignore the Corporation Defense?
9. Is it error to ignore the failure to sue the right corporation?
10. Is it error to ignore evidence or lack of evidence?
Appellant’s Brief at 3 (verbatim).
While Appellants present ten issues as set forth above, they essentially
argue that there was insufficient evidence to support a jury finding that
Appellants entered into an enforceable contract with Toneatto and, therefore,
they were entitled to JNOV. Appellants’ Brief at 6-8. More specifically,
Appellants claim that: (1) Toneatto failed to produce evidence of proper
service of the complaint; (2) it was error to allow the introduction of testimony
from Jay Smith, Appellants’ purported agent, because Smith died prior to trial;
(3) Toneatto either failed to produce the $3,000.00 retainer check he allegedly
received or he engaged in spoliation of that evidence; (4) Toneatto failed to
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produce any documents showing a meeting of the minds for interest or
attorneys’ fees for breach of the alleged contract; (5) the entire case was
based upon hearsay; (6) Toneatto failed to produce evidence that his work
was fair, reasonable, and necessary; (7) Toneatto admitted that he did not
produce evidence that his work was fair, reasonable, and necessary when he
failed to reply to new matter; (8) Pankai Sheth is an officer of 501 Hospitality
Management, LLC and not personally liable for the corporation’s contracts; (9)
Toneatto sued the wrong entity, 501 Hospitality Management rather than 501
Hospitality Management, LLC; (10) the trial court “found non existent
circumstances to prove that an unsigned contract is in fact a contract.” Id.
at 6-7 (emphasis added).
Preliminarily, in this appeal, we note that of the ten claims listed in
Appellants’ brief, only the eighth and ninth issues are included in their Rule
1925(b) statement and supplemental Rule 1925(b) statement. In those
concise statements, Appellants also generally claimed that the unsigned
proposal was not evidence of a contract. As such, we conclude that
Appellants properly presented and preserved appellate issues eight through
ten as set forth above. Appellants’ first seven issues were not presented to
the trial court, cannot be raised for the first time on appeal, and, therefore,
are waived. See Pa.R.A.P. 1925(b)(vii) (issues not included in a statement of
concise errors complained of on appeal are waived); Pa.R.A.P. 302 (“Issues
not raised in the lower court are waived and cannot be raised for the first time
on appeal.”).
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Regarding the issues preserved for appeal, in sum, Appellants argue:
8. CORPORATION DEFENSE
As a matter of law[,] [Pankai] Sheth is an officer of 501
Hospitality Management LLC and is not liable for the
[c]orporation’s contracts. At no time did [Toneatto] perform work
on [Pankai] Sheth’s home. This action against [Pankai] Sheth
should have been dismissed. First Realvest v. Avery Builders
Inc., 600 A.2d [600, 602 (Pa. Super. 1991)].
9. CORRECT CORPORATION
[Toneatto] sued 501 Hospitality Management and not 501
Hospitality Management, LLC. In a recent [unpublished
memorandum] by the Superior Court it was made clear that the
correct corporation must be sued. Copy Copy v. KDI, 3851 EDA
2017, December 19, 2018. [Toneatto] failed to produce the
evidence of the correct corporation or the correct status of the
business. The judgment is void.
10. LOWER COURT’S OPINION
When one reads the [trial c]ourt opinion it is clear that the
[c]ourt did not address the above issues, any[] one of which could
have been used to dismiss [Toneatto’s] action. Instead the
[c]ourt found non existent circumstances to prove that an
unsigned contract is in fact a contract. This is clearly an error of
law, many times.
Appellants’ Brief at 7.
Preliminarily, we must comment on the woefully inadequate brief that
Appellants have submitted on appeal. An appellate court will address only
those issues properly presented and developed in an appellant's brief as
required by our Rules of Appellate Procedure. See Pa.R.A.P. 2101 (where
“defects in the brief [] of the appellant [] are substantial, the appeal or other
matter may be quashed or dismissed.”). As shown above, counsel for
Appellants has not adhered to our rules of appellate procedure, by failing to:
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(1) discuss the legal citations deemed pertinent; (2) give a synopsis of the
evidence on point; (3) cite binding authority in support of their last two issues,
relying instead upon an unpublished memorandum of this Court filed before
May 1, 2019; and (4) refer to the certified record in support of their
arguments. See Pa.R.A.P. 2119(a)-(d); Pa.R.A.P. 126. Where defects in a
brief “impede our ability to conduct meaningful appellate review, we may
dismiss the appeal entirely or find certain issues to be waived.”
Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007);
Commonwealth v. McDermitt, 66 A.3d 810, 814 (Pa. Super. 2013) (“[I]t is
a well settled principle of appellate jurisprudence that undeveloped claims are
waived and unreviewable on appeal.”); Wirth v. Commonwealth, 95 A.3d
822, 837 (Pa. 2014) (“[W]here an appellate brief fails to ... develop an issue
in [a] meaningful fashion capable of review, that claim is waived. It is not the
obligation of an appellate court to formulate [an] appellant's arguments for
him.”); Commonwealth v. Miller, 721 A.2d 1121, 1124 (Pa. Super. 1998)
(finding claims waived where there was a “lack of factual background and
citation to the record, coupled with the anemic state of the argument portion
of [Miller’s appellate] brief”). Thus, we conclude that Appellants failure to
develop their appellate arguments results in waiver of their current claims.
Even if we did not find Appellants’ issues waived, there is no merit to
Appellants’ claim that the trial court erred or abused its discretion in finding
breach of a contract implied-in-fact. Our standard of review is as follows:
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The propriety of a JNOV is a question of law, and therefore, our
scope of review is plenary. When the denial of JNOV is challenged
on the basis that the evidence was such that no two reasonable
minds could disagree that the outcome should have been rendered
in favor of the movant, as here, this Court reviews the evidentiary
record and must conclude that the evidence was such that a
verdict for the movant was beyond peradventure. Moreover,
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 standards 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 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.
Corvin v. Tihansky, 184 A.3d 986, 990 (Pa. Super. 2018) (internal citations,
brackets, and quotations omitted).
This Court has previously determined:
A contract implied-in-fact arises where the parties agree upon the
obligations to be incurred, but their intention, instead of being
expressed in words, is inferred from their acts in the light of the
surrounding circumstances. An implied contract may be found to
exist where the surrounding circumstances support a
demonstrated intent to contract.
Discover Bank v. Stucka, 33 A.3d 82, 88 (Pa. Super. 2011) (internal
citations and quotations omitted).
“It is the province of the jury to assess the worth of all testimony
presented.” Carroll v. Avallone, 939 A.2d 872, 874 (Pa. 2007) (citation
omitted). “The jury is free to believe all, some, or none of the witness
testimony presented at trial.” Id.
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In this matter, the trial court concluded:
Here, the evidence [established that Toneatto made] an offer to
provide engineering services to [Appellants] by mailing a proposal
directly to [Pankai] Sheth. [Appellants], through Jay Smith acting
on behalf of 501, accepted the proposal by providing the initial
$3,000.00 payment. [Toneatto] then provided services to
[Appellants] at the direction of their then-counsel, yet
[Appellants’] failed to pay. While [Pankai] Sheth did not sign the
proposal, the jury was free to conclude that [Appellants’]
subsequent actions, including the initial payment, showed their
intent to contract with [Toneatto]. [Appellants], therefore, are
not entitled to relief on a challenge to the jury’s determination
that they breached a contract with [Toneatto]. Because the
evidence supports the jury’s determination that [Appellants]
breached their agreement with [Toneatto], [the trial] court []
awarded [Toneatto] costs, as well as contractual interest and
attorneys’ fees.
Trial Court Opinion, 1/22/2019, at 4 (footnote incorporated).
Upon review of the certified record, we discern no abuse of discretion or
error of law in denying relief on Appellants’ claim that the trial court relied
upon “non existent circumstances to prove that an unsigned contract is in fact
a contract.” The jury was free to infer Appellants’ intent to contract with
Toneatto from all of the surrounding circumstances. Appellants paid
Toneatto’s proposed retainer and then directed him to provide specific
engineering services. Toneatto provided those services and Appellants failed
to pay for them. Based upon the evidence presented, the jury was free to
determine that Appellants breached a contract implied-in-fact.
Finally, we reject Appellants’ arguments that Toneatto sued the wrong
corporation or that Pankai Sheth, as an officer of 501 Hospitality Management,
is not liable for the corporation’s contracts. The trial court noted that
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Appellants attempted to present a purported certificate of organization for 501
Hospitality Management, LLC as an attachment to their supplemental Rule
1925(b) statement. Trial Court Opinion, 1/22/2019, at 3 n.4. This
information was never presented to the jury, so the trial court determined “it
has no relevance to the instant appeal.” Id. Appellants simply did not provide
trial evidence of the alleged “correct corporation.” Moreover, regarding Pankai
Sheth’s capacity and amenability to suit, Appellants filed a motion for
summary judgment seeking a determination that, as a matter of law, it was
improper to sue officers of a corporation. However, the trial court denied relief
by order entered on August 3, 2018, because the motion for summary
judgment was untimely. Thereafter, at a sidebar conference during trial,
Appellants raised the issue again. Toneatto argued that he was “not seeking
any sort of liability against [Pankai] Sheth in his capacity as an officer of 501.”
N.T., 8/14/2018, at 117. Toneatto argued that he sent a proposal directly to
Pankai Sheth, received payment, and was “led to believe that he’s working on
behalf of Pankai Sheth personally.” Id. We agree with this assessment. The
captions on the original pro se complaint, amended complaint, trial court
filings, and appeal filings all separately list Pankai Sheth in his individual
capacity. As such, Appellants’ eighth and ninth issues presented on appeal
have no merit.
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Accordingly, while Appellants have waived all of the issues presented on
appeal,2 for the foregoing reasons, there is otherwise no merit to them.
Judgment affirmed. Application for relief denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/19
____________________________________________
2 On September 3, 2019, after this Court’s briefing schedule expired and oral
argument in this Court concluded, Appellants filed an application for relief
requesting to reply to Toneatto’s appellate brief. In that submission,
Appellants contend that they did not waive their appellate issues. Appellants
claim that their Rule 1925(b) statements referred to various motions and
memoranda previously filed with the trial court, thereby preserved the issues
on appeal. See Appellants’ Request to Reply, 9/3/2019, at 3. This Court,
however, has concluded that other documents may not be incorporated by
reference into a Rule 1925(b) statement. Commonwealth v. Osteen, 552
A.2d 1124, 1126 (Pa. Super. 1989); see also Commonwealth v. Smith,
955 A.2d 391, 393 n.5 (Pa. Super. 2008); Commonwealth v. Dodge, 859
A.2d 771, 774 (Pa. Super. 2004) (expressing disapproval of the appellant's
incorporation by reference of post sentence motions in his 1925(b)
statement), vacated on other grounds, 935 A.2d 1290 (Pa. 2007). Moreover,
because this Court heard oral argument on the matter before the request was
made, it was untimely. Thus, we deny Appellants relief on their application to
reply.
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