J-A08023-19
2019 PA Super 326
US COAL CORPORATION, AND GRATIAN IN THE SUPERIOR COURT
YATSEVITCH, III OF PENNSYLVANIA
Appellants
v.
BRIAN RAY DINNING, STEPHEN
DINNING, DAVID LYNN DINNING, D.L.
DINNING CO., LLC, FBR CAPITAL
MARKETS & CO., FBR & CO., AK COAL
RESOURCES, INC., FORMERLY KNOWN
AS SOLAR FUEL COMPANY, INC., AND AK
STEEL CORPORATION
Appellees No. 1021 WDA 2018
Appeal from the Order Entered June 20, 2018
In the Court of Common Pleas of Somerset County
Civil Division at No: 587 Civil 2013
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
OPINION BY STABILE, J.: FILED OCTOBER 29, 2019
Appellants US Coal Corporation (“US Coal”) and Gratian Yatsevitch, III
(“Yatsevitch”), appeal from the June 20, 2018 order awarding sanctions and
rendering final the trial court’s previous grant of summary judgment in favor
of Appellees, Brian Ray Dinning (“Brian”), Stephen Dinning (“Stephen”), David
Lynn Dinning (“David”), D.L. Dinning Co., LLC (“D.L. Dinning”, and,
collectively with David and Stephen and exclusive of Brian, the “Dinning
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Parties”), FBR Capital Markets & Co. and FBR & Co. (collectively “FBR”),1 AK
Coal Resources (“AK Coal”), Inc., f/k/a Solar Fuel Company, Inc. (“Solar
Fuel”), and AK Steel Corporation (“AK Steel,” and, collectively with AK Coal
and Solar Fuel Company, “AK”). We affirm.
Appellants filed their complaint on October 17, 2013, alleging various
causes of action, including breach of contract, promissory estoppel, unjust
enrichment, fraud, and negligent misrepresentation. On October 4, 2017, the
trial court granted the summary judgment motions of all Appellees on
Appellants’ causes of action, and found in favor of AK on an indemnity
counterclaim. The October 4, 2017 order reserved ruling on the amount of
AK’s damages. On February 20, 2018, AK filed a petition for attorneys’ fees.
On March 27, 2018, the trial court conducted a hearing on attorneys’ fees and
a motion for sanctions filed by the Dinning Parties. On June 4, 2018, the trial
court entered a judgment of $152,770.13 in favor of AK. On June 20, 2018,
the trial court awarded $7,222.32 in sanctions to the Dinning Parties. The
trial court designated the June 20, 2018 order as “a final order in this matter.”
Order, 6/20/18. Appellants filed their notice of appeal on July 7, 2018.
The complaint arises out of a business transaction whereby AK acquired
a company then known as Solar Fuel. Brian and David owned Solar Fuel and
wished to sell it. In pursuit of that goal, in October of 2010, Brian contacted
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1 FBR is not participating in this appeal.
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Yatsevitch, an investment banker. Yatsevitch in turn contacted FBR, an
investment-banking firm. FBR advised Yatsevitch that its client, AK, had an
interest in buying Solar Fuel. AK and US Coal2 considered a joint venture
whereby the companies would acquire Solar Fuel. In August of 2011, Brian
informed Yatsevitch that AK would not pursue the joint venture with US Coal.
Subsequently, in October of 2011, AK agreed to acquire Solar Fuel without the
involvement of Yatsevitch or US Coal, for 36 million dollars (the “Solar Fuel
Sale”). On October 3, 2011, prior to consummating the Solar Fuel Sale, US
Coal executed a release (the “Release”). Brian, serving as in-house counsel
for US Coal, executed the Release on behalf of US Coal at the direction of
Yatsevitch. Yatsevitch Deposition, 3/24/15, at 182. The Release was central
to the trial court’s grant of summary judgment in favor of AK. The trial court
also found no enforceable oral agreement regarding the right of Yatsevitch
and/or US Coal to receive compensation from the Solar Fuel Sale.
Before we address the merits of Appellants’ arguments, we must
consider whether we have jurisdiction over anything other than the order
awarding sanctions to the Dinning Parties. Appellees note that the October 4,
2017 order disposed of all claims and parties. The only remaining issue from
the parties’ pleadings after October 4, 2017 was the amount of AK’s award,
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2 Yatsevitch incorporated US Coal under the laws of Wyoming. US Coal’s
articles of incorporation, filed July 15, 2011, appear in the record as Exhibit 7
of the Appendix to AK’s brief in support of its summary judgment motion.
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which the June 4, 2018 order resolved. The only outstanding issue after June
4, 2018 was the Dinning Parties’ motion for sanctions, which the trial court
resolved on June 20, 2018. Appellants filed their notice of appeal on July 7,
2018, within the 30-day appeal period of the award of sanctions to the Dinning
Parties but untimely as to all other orders. Thus, unless the June 20, 2018
order was the final appealable order in this matter, our jurisdiction is limited
to a review of the award of sanctions granted in that order.
Appellees cite Old Forge School Dist. v. Highmark, Inc., 924 A.2d
1205 (Pa. 2007), in which our Supreme Court held that a petition for sanctions
and/or attorney fees was a separate matter over which the trial court retained
jurisdiction after the parties appealed the final order on the merits. In that
case, the Commonwealth Court, exercising original jurisdiction, entered an
order sustaining preliminary objections and dismissing a complaint on
February 7, 2006. Id. at 1206. The defendant filed an application for
attorney’s fees, pursuant to 42 Pa.C.S.A. §§ 2503(7) and 2503(9)3 ten days
later, on February 17, 2006. Id. at 1209. The plaintiff appealed the dismissal
of the complaint without awaiting resolution of the fee application. Id. The
Commonwealth Court entered an order granting the defendant’s application
for fees while the merits appeal was pending. Id. On appeal from the order
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3 Section 2503 of the Judicial Code governs the right of litigants to receive
counsel fees. 42 Pa.C.S.A. § 2503. Section 2503 is not at issue here.
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granting the fee application the plaintiff, citing Pa.R.A.P. 1701(a),4 argued the
Commonwealth Court lacked jurisdiction to award fees, given the prior
pending appeal on the merits. Id. at 1210. The Supreme Court disagreed,
holding that the order dismissing preliminary objections was final and
appealable, and that the fee petition was a separate matter for purposes of
Rule 1701. Id. at 1211. In general, therefore, a fee petition is “connected
to, but separate from, the underlying action.” Id.5
Pursuant to Old Forge, the June 4, 2018 order was final and appealable,
as it disposed of AK’s counterclaim, the only claim remaining from the parties’
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4 Rule 1701(a) provides: “Except as otherwise prescribed by these rules,
after an appeal is taken or review of a quasijudicial order is sought, the trial
court or other government unit may no longer proceed further in the matter.”
Pa.R.A.P. 1701(a).
5 The parties also address In re Appeal of Affected and Aggrieved
Residents from the Adverse Action of the Supervisors of Whitpain
Twp., 924 A.2d 1205 (Pa. 2007), a zoning dispute in which the residents
appealed an order granting rezoning from residential to limited industrial. By
statute, the trial court conducted a hearing to determine whether the
residents’ appeal was frivolous and for the purpose of delay. Id. at 621. The
court determined the appeal was frivolous and, when the residents failed to
post the required bond, it dismissed their appeal. Id. The residents appealed
to the Commonwealth Court and, while that appeal was pending, the opposing
party filed a petition for attorney’s fees. Id. The Commonwealth Court
affirmed the order dismissing the residents’ appeal as frivolous, and the trial
court denied the opposing party’s fee petition. Id. at 621-22. This Court, on
review of the trial court’s denial of the fee petition, concluded that the common
pleas court lacked jurisdiction over the fee petition when it was filed. Id.at
622. The issue involved—the frivolity of the residents’ appeal—was precisely
the issue before the Commonwealth Court. Id. at 622. We entertained the
appeal in the interest of judicial economy because the Commonwealth Court
had already issued its decision. Id. Given our analysis in the main text, this
case is not pertinent to our decision to exercise jurisdiction.
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pleadings. The Dinning Parties’ sanctions motion was a separate matter under
the Old Forge analysis. The instant case is distinct however, in that the trial
court in disposing of the Dinning Parties’ fee petition, expressly designated
the June 20, 2018 order as final. This case is also distinct from Old Forge in
that the Dinning Parties’ fee petition was pending prior to the June 4, 2018
order, which otherwise disposed of all claims and parties, whereas in Old
Forge the fee petition was filed after the final order on the merits.
We observe that the trial court, on June 20, 2018, continued to have
jurisdiction over the entire case, inasmuch as fewer than thirty days had
passed since the June 4, 2018 order and no party had filed an appeal. See
42 Pa.C.S.A. § 5505. Appellants, in apparent reliance on the trial court’s
designation of the June 20, 2018 order as final, filed this appeal within thirty
days of June 20, 2018. We conclude that the June 20, 2018 order in effect
modified the June 4, 2018 final order pursuant to § 5505, and that Appellants’
notice of appeal was timely as to all issues. Old Forge permits a fee petition
to proceed as a separate matter under Rule 1701, but no party has cited any
case that requires a fee petition to proceed as a separate matter. 6 Nor has
any party argued that the trial court was prohibited from modifying the June
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6 Because the fee petition and the merits proceeded under a single docket
number, a single notice of appeal was appropriate. Our Supreme Court’s
decision in Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), poses no
obstacle to our review.
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4, 2018 order to resolve the pending fee petition. We therefore proceed to
address the merits of all of Appellants’ assertions of error.
Appellants’ brief includes five argument sections, each of which
challenges the trial court’s entry of summary judgment in favor of Appellees.7
A motion for summary judgment is appropriate after the pleadings are closed
and “whenever there is no genuine issue of any material fact as to a necessary
element of the cause of action or defense which could be established by
additional discovery or expert report[,]” or, after the completion of discovery,
when the party bearing the burden of proof “has failed to produce evidence of
facts essential to the cause of action or defense which in a jury trial would
require the issues to be submitted to a jury.” Pa.R.C.P. No. 1035.2(1), (2).
We review the trial court’s order as follows:
Our scope of review ... [of summary judgment orders] ... is
plenary. We apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists a
genuine issue of material fact. We view the record in the light
most favorable to the non-moving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party. Only where there is no genuine issue
as to any material fact and it is clear that the moving party is
entitled to judgment as a matter of law will summary judgment
be entered.
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7 The Rules of Appellate Procedure require that the argument section of a
brief be divided into as many sections as there are questions to be argued.
Pa.R.A.P. 2119(a). Appellants’ brief does not comply, which lists thirteen
questions involved (Appellants’ Brief at 6-7) and only five sections of
argument. As we will explain in the main text, Appellants appear to address
several questions in each section of argument. Questions that go unaddressed
in the argument section we will deem waived, as specified in the main text.
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Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of his cause of
action. Summary judgment is proper if, after the completion of
discovery relevant to the motion, including the production of
expert reports, an adverse party who will bear the burden of proof
at trial has failed to produce evidence of facts essential to the
cause of action or defense which in a jury trial would require the
issues to be submitted to a jury. Thus a record that supports
summary judgment will either (1) show the material facts are
undisputed or (2) contain insufficient evidence of facts to make
out a prima facie cause of action or defense and, therefore, there
is no issue to be submitted to the jury. Upon appellate review we
are not bound by the trial court’s conclusions of law, but may
reach our own conclusions. The appellate Court may disturb the
trial court’s order only upon an error of law or an abuse of
discretion.
Alexander v. City of Meadville, 61 A.3d 218, 221 (Pa. Super. 2012).
Appellants’ first assertion of error is that, contrary to the trial court’s
findings, they produced sufficient evidence of a breach of the Release by AK.8
Appellants’ Brief at 14. In essence, Appellants argue that they expected to
receive compensation in exchange for executing the release, and that AK has
not paid them. The Release, executed on October 3, 2011 between US Coal
and AK, noted a prior letter of intent (“LOI”) between them, and expressed
the “parties desire to document termination of such discussions and release
and waive any claims, rights or relationship that may exist.” Release,
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8 This argument appears to encompass Appellants’ second, third, and fifth
questions presented. Appellants’ Brief at 6.
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10/3/11, at ¶ 1.9 The Release also acknowledges the parties’ receipt of
consideration. Id. at ¶ 2. The Release is governed by Ohio law. Id. at ¶ 4.
It states that it is the parties’ entire agreement, and that alterations or
amendments must be in writing. Id. at ¶ 6(a), (b).
Appellants argue that the Release is ambiguous as to their right to
compensation, and that they did not in fact receive compensation for entering
the Release. Appellants cite one sentence in the Release stating that “as a
condition to closing a transaction that will be beneficial to US Coal or its
shareholders, [AK] is requiring that this Agreement be duly executed.”
Release, 10/3/11, at ¶ 1. Because the nature of this transaction is
unspecified, and because Appellants allegedly never received any valuable
consideration in exchange for the Release, Appellants argue that
interpretation of the Release required the admission of parol evidence and fact
finding by a jury. We disagree.
“Under Ohio law, “[a] release, or compromise agreement, is a particular
kind of contract, and, like other contracts, requires a definite offer and an
acceptance thereof *** [and] must be the result of a meeting of the parties’
minds in order to be binding.” Indus. Heat Treating Co., Inc. v. Indus.
Heat Treating Co., 662 N.E.2d 837, 843 (Ohio Ct. App. 1995). “A release of
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9 The Release appears in the certified record at, among other places, Exhibit
A to AK’s June 23, 2014 answer and new matter to Appellants’ amended
complaint.
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a cause of action for damages is ordinarily an absolute bar to a later action on
any claim encompassed within the release.” Haller v. Borror Corp., 552
N.E.2d 207, 210 (Ohio 1990). The parties’ intent governs the interpretation
of a release. Whitt v. Hutchinson, 330 N.E.2d 678, 682 (Ohio 1975). Where
a writing purports to be the parties’ entire agreement, the parol evidence rule
operates to bar any extrinsic evidence that contradicts or supplements the
terms of the writing. Bellman v. Am. Int’l Grp., 865 N.E.2d 863, 857 (Ohio
2007).
The parol evidence rule states that absent fraud, mistake or
other invalidating cause, the parties’ final written integration of
their agreement may not be varied, contradicted or supplemented
by evidence of prior or contemporaneous oral agreements, or prior
written agreements. Despite its name, the parol evidence rule is
not a rule of evidence, nor is it a rule of interpretation or
construction. The parol evidence rule is a rule of substantive law
which, when applicable, defines the limits of a contract. […]
The parol evidence rule, as is now universally recognized, is
not a rule of evidence but is one of substantive law. It does not
exclude evidence for any of the reasons ordinarily requiring
exclusion, based on the probative value of such evidence or the
policy of its admission. The rule as applied to contracts is simply
that as a matter of substantive law, a certain act, the act of
embodying the complete terms of an agreement in a writing (the
‘integration’), becomes the contract of the parties. The point then
is, not how the agreement is to be proved, because as a matter
of law the writing is the agreement. Extrinsic evidence is excluded
because it cannot serve to prove what the agreement was, this
being determined as a matter of law to be the writing itself. The
rule comes into operation when there is a single and final
memorial of the understanding of the parties. When that takes
place, prior and contemporaneous negotiations, oral or written,
are excluded; or, as it is sometimes said, the written memorial
supersedes these prior or contemporaneous negotiations.
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The principal purpose of the parol evidence rule is to protect
the integrity of written contracts.
Galmish v. Cicchini, 734 N.E.2d 782, 788–89 (Ohio 2000) (internal citations
and quotation marks omitted). “Courts may not […] use extrinsic evidence to
create an ambiguity. Rather, the ambiguity must be patent; that is, apparent
on the face of the contract.” PNC Bank, N.A. v. Springboro Med. Arts,
Inc., 41 N.E.3d 145, 153 (Ohio Ct. App. 2015).
As noted above, the Release expressly purports to be the parties’ entire
agreement. The Release contains US Coal’s express acknowledgement of its
receipt of sufficient and valuable consideration in exchange for its execution.
The parol evidence rule therefore bars admission of extrinsic evidence to
support Appellants’ claim that US Coal received no consideration. Moreover,
even were we to consider parol evidence, Yatsevitch testified that, prior to the
execution of the Release, there was no agreement as to compensation, and
that he was told the board of AK did not authorize any payment. Yatsevitch
Deposition, 3/24/15, at 99, 111. Yatsevitch also stated, “The [R]elease does
not promise payment.” Id. at 113. Finally, we observe that the parties’ non-
binding LOI, signed by Yatsevitch on behalf of US Coal, referenced in the
Release, disavowed any binding promises. Letter of Intent, 7/15/11.10 Thus,
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10 The LOI appears in the record as Exhibit 8 of the appendix to AK’s brief in
support of its motion for summary judgment, filed on August 15, 2017.
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it appears that the Release was simply an additional memorialization of that
fact.
As noted above, Appellants rely on a single sentence in Paragraph 1 of
the Release contemplating a “transaction valuable to US Coal and/or its
shareholders.” Release, 10/3/11, at ¶ 1. Appellants fail to provide a coherent
explanation of why that sentence is pertinent to the validity of the Release or
US Coal’s acknowledgement of receipt of sufficient consideration for its
execution. Furthermore, as Yatsevitch acknowledged, that sentence does not
support Appellants’ claim that AK promised future remuneration after
execution of the Release. We discern no error in the trial court’s grant of
summary judgment in AK’s favor on Appellants’ cause of action for breach of
the Release.
In section “b” of their argument, Appellants claim the trial court erred
in granting summary judgment in favor of AK on Appellants’ promissory
estoppel claim.11 Appellants’ Brief at 19. This argument is simply a
restatement of Appellants’ breach of Release argument under a different legal
theory. Id. at 19-21.
In order to maintain an action in promissory estoppel, the
aggrieved party must show that 1) the promisor made a promise
that he should have reasonably expected to induce action or
forbearance on the part of the promisee; 2) the promisee actually
took action or refrained from taking action in reliance on the
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11This section of Appellants’ Brief addresses their fourth question presented.
Appellants’ Brief at 6.
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promise; and 3) injustice can be avoided only by enforcing the
promise.
Crouse v. Cyclops Indus., 745 A.2d 606, 610 (Pa. 2000). Promissory
estoppel applies to prevent an injustice where an agreement is unenforceable
due to a lack of consideration. Id. We have already explained that Appellants
acknowledged receipt of consideration in exchange for executing the Release.
Thus, Appellants cannot assert a cause of action for promissory estoppel. The
trial court did not err in entering summary judgment in AK’s favor on this
cause of action.
In part “c” of their argument, Appellants claim the trial court erred in
entering summary judgment in favor of AK on Appellants’ claim of unjust
enrichment. Appellants’ Brief at 21-22. This argument does not correspond
to any of Appellants’ questions presented, in violation of Rule 2116 of the
Pennsylvania Rules of Appellate Procedure. 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.”). Furthermore, Appellants have failed to support
this argument with citation to any pertinent authority, in violation of Pa.R.A.P.
2119(b). Appellants have waived this argument. Giant Food Stores, LLC
v. THF Silver Spring Development, L.P., 959 A.2d 438, 444 (Pa. Super.
2008) (holding that failure to support an argument with citation to authority
results in waiver), appeal denied, 972 A.2d 522 (Pa. 2009).
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In section “d” of their argument, Appellants claim that the trial court
erred in finding no triable issue of fact as to their fraudulent12 and negligent
misrepresentation13 claims against the Dinning Parties.14 Appellants’ Brief at
22-29. Appellants do not allege that the Dinning Parties made any
representations. Rather, they argue that Brian made misrepresentations, and
in so doing acted as the Dinning Parties’ agent.
While it is unnecessary to plead all the various details of an
alleged agency relationship, a complainant must allege, as a
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12 The elements of fraudulent misrepresentation are as follows:
(1) A representation; (2) which is material to the transaction at
hand; (3) made falsely, with knowledge of its falsity or
recklessness as to whether it is true or false; (4) with the intent
of misleading another into relying on it; (5) justifiable reliance on
the misrepresentation; and, (6) the resulting injury was
proximately caused by the reliance.
Weston v. Northampton Pers. Care, Inc., 62 A.3d 947, 960 (Pa. Super.
2013), appeal denied, 79 A.3d 1099 (Pa. 2013).
13 The elements of negligent misrepresentation are as follows:
1) a misrepresentation of a material fact; (2) made under
circumstances in which the misrepresenter ought to have known
its falsity; (3) with an intent to induce another to act on it; and
(4) which results in injury to a party acting in justifiable reliance
on the misrepresentation. Negligent misrepresentation differs
from intentional misrepresentation in that the misrepresentation
must concern a material fact and the speaker need not know his
or her words are untrue, but must have failed to make a
reasonable investigation of the truth of these words.
Gongloff Contracting, L.L.C. v. L. Robert Kimball & Assocs., Architects
& Engineers, Inc., 119 A.3d 1070, 1076 (Pa. Super. 2015).
14 This argument encompasses Appellants’ sixth and seventh questions
presented. Appellants’ Brief at 6.
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minimum, facts which: (1) identify the agent by name or
appropriate description; and (2) set forth the agent’s authority,
and how the tortious acts of the agent either fall within the scope
of that authority, or, if unauthorized, were ratified by the principal.
Ettinger v. Triangle-Pac. Corp., 799 A.2d 95, 109 (Pa. Super. 2002),
appeal denied, 815 A.2d 1042 (Pa. 2003).
An agency relationship may be created by any of the
following: (1) express authority, (2) implied authority, (3)
apparent authority, and/or (4) authority by estoppel. Express
authority exists where the principal deliberately and specifically
grants authority to the agent as to certain matters. Implied
authority exists in situations where the agent’s actions are proper,
usual and necessary to carry out express agency. Apparent
agency exists where the principal, by word or conduct, causes
people with whom the alleged agent deals to believe that the
principal has granted the agent authority to act. Authority by
estoppel occurs when the principal fails to take reasonable steps
to disavow the third party of their belief that the purported agent
was authorized to act on behalf of the principal.
Walton v. Johnson, 2013 Pa. Super. 108, 66 A.3d 782, 786 (2013) (internal
citations and quotation marks omitted). “The relationship of agency cannot
be inferred from mere relationship or family ties unattended by conditions,
acts or conduct clearly implying an agency.” Id. at 787.
Appellants cite Walton but do not explain the basis for Brian’s alleged
authority. They argue that Brian and the Dinning Parties were a “close-knit”
family and that each was aware of what the other was doing. Appellants’ Brief
at 24. Appellants also noted that Brian and David were in a meeting with AK
personnel shortly before the deal between US Coal and AK collapsed. Id.
Appellants also produced a witness, Chris Ross, who testified to his belief that
Brian was acting on behalf of Solar Fuel and David throughout the discussions.
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Id. at 24-25. According to Appellants, Brian cut US Coal out of the Solar Fuel
Sale in order to benefit his family. Id. at 26. Appellants also claim the Dinning
Parties failed to produce any evidence indicating that Brian was not their
representative. Id. at 25. Finally, Appellants produced a Consulting
Agreement,15 executed between Solar Fuel and D.L. Dinning on the day of the
Solar Fuel Sale, whereby D.L. Dinning would provide consulting services for
one year after the sale. The consulting agreement lists Brian as a
representative of D.L. Dinning.
In our view, none of these items, individually or collectively, establishes
that Brian was serving as an agent for the Dinning Parties, such that any false
representations he made are attributable to them. Appellants have produced
no evidence that Brian had express authority to act on the Dinning Parties’
behalf. Nor have Appellants produced evidence that Brian’s actions were
proper, usual, and necessary to carry out express agency, so as to create
implied authority, or that only words and deeds by the Dinning Parties led
Appellants to believe Brian was the Dinning Parties’ agent, so as to create
apparent authority. The law provides that a family relationship is not, in and
of itself, indicative of agency. Furthermore, as noted above, Brian was a
shareholder of and in-house counsel for US Coal. Appellants do not explain
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15 The consulting agreement appears in the record as Exhibit G to Appellants’
response and brief in opposition to the Dinning Parties’ summary judgment
motion.
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how they failed to understand the alleged dual role of their own in-house
attorney. The assertion that Brian cut US Coal out of the transaction for the
benefit of the Dinning Parties is mere innuendo unsupported by any evidence.
Finally, Appellants fail to explain the relevance of the appearance of Brian’s
name, as a representative of D.L. Dinning, in the Consulting Agreement. The
Consulting Agreement was executed on the day of the Solar Fuel Sale, months
after the proposed transaction involving Appellants fell apart.
In short, Appellants have failed to explain how any evidence of record
presents a triable issue of fact as to Brian’s agency under any of the theories
described in Walton. Appellants’ agency theory fails, and their arguments in
support of their fraudulent and negligent misrepresentation causes of action
against the Dinning Parties fail along with it, as none of Brian’s alleged
misrepresentations is attributable to the Dinning Parties.
Finally, in section “e” of their argument, Appellants claim the trial court
erred in awarding $7,222.32 in attorney’s fees to the Dinning Parties pursuant
to Pa.R.C.P. No. 1023.4(a)(2)(iii).16 We review the trial court’s award for
abuse of discretion. Luccino v. Commonwealth, Dep’t of Environmental
Protection, 809 A.2d 264, 268-69 (Pa. 2002). “The relentless pursuit of a
claim which plainly lacks legal merit warrants an award of counsel fees.”
Miller v. Nelson, 768 A.2d 858, 862 (Pa. Super. 2001), appeal denied, 782
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16 Section “e” addressed Appellants’ tenth through thirteenth questions
presented. Appellants’ Brief at 7.
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A.2d 547 (Pa. 2001). The trial court opined that the Dinning Parties should
have been removed from the case without having to litigate a summary
judgment motion, inasmuch as there was no factual basis for Appellants’
causes of action against the Dinning Parties. Trial Court Opinion, 6/25/18, at
1-2 (pagination ours). In response, Appellants simply reassert the arguments
we have already rejected above. Appellants’ Brief at 31.
We discern no abuse of discretion in the trial court’s decision. Appellants
relentlessly pursued misrepresentation claims against the Dinning Parties on
their theory that Brian—a shareholder of and counsel for US Coal—was also
the Dinning Parties’ agent. The Dinning Parties concededly made no
representation to Appellants.
Appellants also argue that the Dinning Parties’ fee petition was defective
because it failed to contain the proper notice under Pa.R.C.P. 1032.2(b). The
record reveals that the Dinning Parties filed their motion for sanctions, with
the proper notice, in response to Appellants’ original complaint. Appellants
filed an amended complaint that did not remove the causes of action against
the Dinning Parties. Appellants now claim that the Dinning Parties’ failure to
renew the motion for sanctions in response to Appellants’ amended complaint
is fatal to the motion for sanctions.
Rule 1032.2(b) requires the motioning party to identify the portion of a
“pleading, motion, or other paper” that gives rise to the request for sanctions,
and to demand that the offending item “be withdrawn or appropriately
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corrected.” Pa.R.C.P. No. 1023.2(b). In this case, Appellants’ amended
complaint did not withdraw their causes of action against the Dinning Parties
in response to the Dinning Parties’ motion for sanctions. Appellants have
failed to explain why, under the language of Rule 1023.2, the Dinning Parties
should have been required to file a duplicate motion under these
circumstances. We discern no abuse of discretion in the trial court’s fee award,
and we reject Appellants’ argument that the Dinning Parties’ motion was
procedurally deficient.17
For all of the foregoing reasons, we affirm the trial court’s entry of
summary judgment in favor of Appellees and against Appellants and its fee
award in favor of the Dinning Parties and against Appellants.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2019
____________________________________________
17 We need not address Appellants’ remaining questions presented. The first
is simply a general assertion that the trial court erred in entering summary
judgment, and the eighth, pertaining to Appellants’ tortious interference cause
of action, is not addressed anywhere in Appellants’ Brief. Thus, it is waived.
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