Veneesa, Inc. v. Stevenson, T.

J-A27012-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VENEESA, INC., JOSEPH VENTRESCA : IN THE SUPERIOR COURT OF
AND KATHLEEN VENTRESCA : PENNSYLVANIA
:
Appellants :
:
:
v. :
:
: No. 3512 EDA 2018
THOMAS STEVENSON, TERRI :
STEVENSON J. DANIEL BRETT & CO., :
P.C., J. DANIEL BRETT, CPA MICHAEL :
LOSTRACCO, CPA :

Appeal from the Order Dated October 29, 2018
In the Court of Common Pleas of Bucks County Civil Division at No(s):
2007-07016

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.: FILED MAY 27, 2020

Veneesa, Inc., (“Veneesa”) and Joseph and Kathleen Ventresca

(collectively, “Appellants”),1.appeal from the October 29, 2018 order denying

Appellants’ post-trial motions following a jury trial against J. Daniel Brett, CPA,

J. Daniel Brett & Co., P.C. (the “Firm”) (collectively, the “Brett Defendants”),

and Michael LoStracco, CPA, for misappropriation of funds, negligence and

related claims. After careful review, we affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1Veneesa, Inc. is a construction company incorporated in Pennsylvania, which
was founded by Joseph Ventresca. See Trial Court Opinion, 1/18/19, at 1.
Mr. Ventresca and his wife, Kathleen, are the majority shareholders. Id.
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The underlying civil action was the culmination of eleven years of

litigation as a result of the actions of: (1) Veneesa president and minority

shareholder Thomas Stevenson;2 (2) Veneesa secretary, treasurer,

comptroller, and minority shareholder Mr. LoStracco; and (3) the Brett

Defendants, which employed Mr. LoStracco. The Brett Defendants, along with

Mr. LoStracco, also served as accountants for Veneesa.

____________________________________________

2 Following a September 24, 2018 pre-trial conference, Mr. Stevenson
conceded his civil liability in the amount of his restitution order and was
released from the case. Immediately thereafter, Mr. Stevenson’s attorney
was released from further representation of Mr. Stevenson prior to trial. See
Order, 9/25/18, at ¶ 1. On October 1, 2018, the trial court issued an order
memorializing this agreement, and removing Mr. Stevenson from both the
caption and the verdict slip. See Order, 10/1/18. After that order effectively
removed Mr. Stevenson from the case for the jury, the trial court denied
Appellants’ motion for partial summary judgment with respect to Mr.
Stevenson. See Order, 10/2/18. Indeed, Appellants’ brief acknowledges that
Mr. Stevenson and the allegations regarding his conduct are of no further
consequence to this matter. See Appellants’ brief at 13 n.3 (“[Mr.] Stevenson
remains in much of the discussion of issues here to give context . . . . It is
only rulings pertaining to [Mr. LoStracco] and the Brett Defendants
that remain the focus of this appeal.” (emphasis added)). Accordingly,
we will limit our assessment in this appeal to those parties actually implicated
by Appellants’ arguments: Mr. LoStracco and the Brett Defendants. Id.

Mr. Stevenson’s brief was filed in the style of a motion to dismiss the appeal
as to Mr. Stevenson. See Brief in the Nature of Application to Dismiss Appeal,
9/11/2019, at 2-6 (arguing that Mr. Stevenson is not a proper party to this
appeal). The relief requested in Mr. Stevenson’s brief is denied without
prejudice to his ability to file a proper application for relief. See Pa.R.A.P. 123
(stating that the proper procedure for seeking relief before the Superior Court
is the filing of a separate “written application”).

Terri Stevenson, Mr. Stevenson’s wife, is listed as a party in this appeal as
well. However, the trial court’s October 1, 2018 order similarly released her
from the litigation in exchange for not taking legal action against Appellants.
See Order, 10/1/18. As such, we will not discuss her further in this writing.

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These parties were named in an August 24, 2007 complaint filed by

Appellants, which described an embezzlement scheme spanning years. Mr.

Stevenson was alleged to have misappropriated the funds and assets of

Veneesa for his own personal benefit. See Complaint, 8/24/07, at ¶¶ 15-22.

He was joined and aided in this effort by Mr. LoStracco, who was alleged to

have prepared paperwork and tax returns to obfuscate the misappropriations.

Id. at ¶¶ 23-29. The Brett Defendants were accused of failing “to exercise

reasonable care,” and of not recognizing or stopping the criminal behavior of

Mr. Stevenson and Mr. LoStracco. Id. at ¶¶ 30-33. In relevant part,

Appellants’ complaint alleged fourteen separate counts and
prayers for relief. These counts levelled claims for conversion
against all but the Brett Defendants; breach of fiduciary duty and
fraud against Mr. LoStracco and Mr. Stevenson; negligence
against Mr. LoStracco and the Brett Defendants; and unjust
enrichment, civil conspiracy, and civil RICO [claims] against all
Defendants. The Complaint also alleged a putative count of
“Agency” against J. Daniel Brett & Co., P.C., based on an averment
that the Firm was vicariously liable for the alleged tortious conduct
of Mr. Brett and Mr. LoStracco.

Trial Court Opinion, 1/18/19, at 1-2 (cleaned up). Mr. LoStracco filed

counterclaims alleging, inter alia, conversion against the Ventrescas.

Both Mr. Stevenson and Mr. LoStracco also faced criminal prosecution,

which culminated in negotiated pleas entered on March 4, 2013. Mr.

Stevenson pled guilty to conspiracy to receive stolen property and theft by

unlawful taking, and agreed to pay $516,696.32 in restitution. Mr. LoStracco

pled nolo contendere to conspiracy to commit theft by deception and theft by

failure to make a required disposition of funds, and agreed to pay $152,000

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in restitution. Both pleas “specified that restitution would be modified to

conform to the outcome of the civil litigation.” Id.

During the extensive motions practice among the parties, Appellants

sought partial summary judgment with respect to their claims against Mr.

Stevenson, Mr. LoStracco, and the Brett Defendants based on the pleas

entered by Mr. Stevenson and Mr. LoStracco.3 See Appellants’ Motion for

Partial Summary Judgment, 7/15/18, at ¶¶ 1-132. It was denied. See, e.g.,

Decision and Order, 9/18/18, at 4 (“Plaintiffs, any parties, witnesses, and

attorneys are precluded from offering [Mr. LoStracco’s] nolo contendere plea

as [an] admission or proof of the facts in this case . . . .”).

After settlement with the Stevensons, the remaining parties proceeded

to a seven-day jury trial that took place from September 24 through October

2, 2018. Following the close of Appellants’ case, the trial court granted

Appellees’ request for a nonsuit on all counts except civil conspiracy, fraud,

and negligence as to Mr. LoStracco, Mr. Brett, and the Firm. Id. at 3.

Thereafter, the trial court dismissed all counterclaims, with the exception of

Mr. LoStracco’s allegations against the Ventrescas concerning conversion. Id.

Ultimately, the jury found in favor of Appellants with respect to their

negligence claims against Mr. LoStracco, Mr. Brett, and the Firm. On all other

remaining counts, the jury found in favor of Appellees. The jury concluded

____________________________________________

3 Appellants also sought to admit evidence of Mr. LoStracco’s nolo contendere
plea by filing a motion in limine.

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that Mr. LoStracco was acting as an agent of both Veneesa and the Firm during

his negligent conduct. Finally, the jury found in favor of Mr. LoStracco with

respect to his conversion claim against Appellants. Id. The jury assessed

damages, as follows: (1) $76,000 against Mr. LoStracco; (2) $38,000 against

each of the Brett Defendants; and (3) $26,700 against the Ventrescas. Id.

On October 9, 2018, Appellants timely filed a motion for post-trial relief,

requesting, inter alia, that trial court: (1) assess joint and several liability

against the Brett Defendants, Mr. LoStracco, and Mr. Stevenson in the amount

of $641,996.32, under Pennsylvania law in effect prior to June 28, 2011;4 (2)

grant judgment notwithstanding the verdict (“JNOV”) or a new trial as to their

claim of conversion against Mr. LoStracco, pursuant to his nolo contendere

plea and the doctrine of collateral estoppel; and (3) grant JNOV, or a new trial,

establishing that Mr. LoStracco was only an agent of the Firm, and not both

the Firm and Veneesa during the course of his negligence. See Appellants’

Motion for Post-Trial Relief, 10/9/18, at ¶¶ 25-37, 62-93. Aside from requests

for pre-judgment and post-verdict interest, attorneys’ fees, and costs, no

other relief was requested in this filing.

After entertaining post-trial motions and responses from all parties, the

trial court granted Appellants’ request for joint and several liability, but limited

____________________________________________

4 To reach this figure, Appellants combined the amounts awarded by the jury
with Mr. Stevenson’s civil liability, which was stipulated to by the parties. See
Appellants’ Motion for Post-Trial Relief, 10/9/18, at ¶ 29.

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the order to Mr. LoStracco and the Brett Defendants for the total sum awarded

by the jury’s verdict, e.g., $152,000. See Order, 10/29/18, at ¶ 1. The trial

court denied the remainder of Appellants’ requests for relief.

That same day, Appellants filed a second petition styled as a

“Countermotion for a New Trial,” which largely repeated the claims for relief

set forth in their original post-trial motion while attempting to re-litigate

various aspects of Mr. LoStracco’s liability. See Appellants’ Countermotion for

a New Trial, 10/29/18, at ¶¶ 4-23 (“[T]he court has gone too far in protecting

a criminal convicted of theft and conspiracy . . . .”). On November 25, 2018,

Appellants sought reconsideration of the trial court’s October 29, 2018 order.

While Appellants’ motions were pending, they filed a timely notice of

appeal from the trial court’s October 29, 2018 post-trial order. The next day,

the trial court denied Appellants’ countermotion and request for

reconsideration. Both Appellants and the trial court have complied with

Pa.R.A.P. 1925.

Appellants have raised the following claims for our consideration:

Question 1: Did the trial court err as a matter of law by denying
partial summary judgment to Appellants given Mr. Stevenson’s
and Mr. LoStracco’s prior convictions for conspiracy and theft of
Appellants’ assets and the judicial admission of an agency
relationship with the Brett Defendants?

Question 2: Did the trial court abuse its discretion and err as a
matter of law by failing to impose collateral estoppel, and by
limiting or excluding Appellants’ use of appropriate evidence, sua
sponte dismissing Appellants’ conversion claim against Mr.
LoStracco (but allowing Mr. LoStracco’s conversion claim against

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Appellants to proceed), and ultimately by denying Appellants’
motion for a new trial?

Question 3: Did the trial court abuse its discretion and err as a
matter of law by refusing to apply joint and several liability against
all Appellees under prevailing Pennsylvania law for cases
commenced in 2007?

Question 4: Did the [trial] court err as a matter of law by denying
Appellants’ JNOV regarding the jury verdict that found [Mr.
LoStracco] committed “professional [accounting] negligence”
when employed part-time with a construction company
(Veneesa), instead of exclusively with the Firm?

Appellants’ brief at 11-12 (cleaned up).

Appellants’ first claim is styled as a challenge to the trial court’s ruling

with respect to Appellants’ motion for partial summary judgment. Such an

order is typically considered interlocutory and unappealable, particularly

where the question presented is one of fact. See Yorty v. PJM

Interconnection, LLC, 79 A.3d 655, 660 (Pa.Super. 2013); see also City

of Philadelphia v. Cumberland County Bd. of Assessment Appeals, 81

A.3d 24, 44 (Pa. 2013) (“Summary judgment may be entered only where the

record demonstrates there remain no genuine issues of material fact, and

it is apparent that the moving party is entitled to judgment as a matter of

law.” (emphasis added)). Appellants also preserved this issue in their post-

trial motions, in which they requested a JNOV with respect to their claims of

conversion against Mr. LoStracco pursuant to theories of collateral estoppel

incorporating his nolo contendere plea. See Appellants’ Motion for Post-Trial

Relief, 10/9/18, at ¶¶ 62-82. Therefore, we will review Appellants’ first claim

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under that rubric. In this context, “[w]e may reverse only in the event the

trial court abused its discretion or committed an error of law that controlled

the outcome of the case.” Sears, Roebuck & Co. v. 69th Street Retail Mall,

L.P., 126 A.3d 959, 967 (Pa.Super. 2015).

Instantly, Appellants’ arguments on this point arise under the doctrine

of collateral estoppel, which “precludes relitigation of an issue determined in

a previous action” so long as certain requirements are met. See Office of

Disciplinary Counsel and Kiesewetter, 889 A.2d 47, 51 (Pa. 2005). This

case implicates the “offensive” iteration of collateral estoppel, which “seeks to

foreclose the defendant from litigating an issue the defendant has previously

litigated unsuccessfully in an action with another party.” Id.

Collateral estoppel applies if: (1) the issue decided in the prior case is

identical to the one presented in the latter case; (2) there was a final judgment

on the merits; (3) the party against whom the plea is asserted was a party or

in privity with a party in the prior case; (4) the party or person privy to the

party against whom the doctrine is asserted had a full and fair opportunity to

litigate the issue in the prior proceeding; and (5) the determination in the

prior proceeding was essential to the judgment. Office of Disciplinary

Counsel v. Duffield, 644 A.2d 1186, 1189 (Pa. 1994).

Appellants assert that a JNOV should have been granted as to

Appellants’ claims of conversion against Mr. LoStracco upon the basis of his

nolo contendere plea. See Appellants’ brief at 33-39. Specifically, Appellants

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argue that Mr. LoStracco’s offenses were “virtually identical” to their civil

claims for relief, thus obviating any dispute of material fact. Id. (citing

Shaffer v. Smith, 673 A.2d 872, 874 (Pa. 1996)).

As the trial court noted in its Rule 1925(a) opinion, Appellants have

significantly misapprehended the state of Pennsylvania law governing nolo

contendere pleas. See Trial Court Opinion, 1/18/19, at 8 (noting that

Appellants have committed an “elementary error” by “failing to distinguish

between guilty pleas and nolo contendere pleas”). Mr. LoStracco’s nolo

contendere plea does not support the application of collateral estoppel in the

civil context. A plea of nolo contendere has the equivalent effect of a guilty

plea in the context of a criminal case. However, such a plea “is an implied

confession of guilt only, and cannot be used against the defendant as an

admission in any civil suit for the same act.” Eisenberg v. Comm. Dep’t of

Public Welfare, 516 A.2d 333, 335 (Pa. 1986); see also Commonwealth

v. Moser, 999 A.2d 602, 606 (Pa.Super. 2010) (“[T]he difference between a

plea of nolo contendere and a plea of guilty is that, while the latter is a

confession binding upon [the] defendant in other proceedings, the former has

no effect beyond the particular case.”). Stated simply, Appellants’ position is

in direct conflict with existing Pennsylvania law.5

____________________________________________

5 Appellants have also cited the Commonwealth Court’s holding in Strain v.
Commonwealth, 784 A.2d 845 (Pa.Cmwlth. 2001), in support of their
arguments, which notes that “our Supreme Court has upheld the use of a

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Appellants reliance upon our Supreme Court’s holding in Shaffer in

support of their argument is inapt. In Shaffer, the defendant was convicted

at trial, and our High Court held that he was collaterally estopped from

contesting his liability in a civil action brought by the victim. See Shaffer,

supra at 874 (“It is well established that a criminal conviction collaterally

estops a defendant from denying his acts in a subsequent civil trial.”). The

Supreme Court offered no discussion of nolo contendere pleas in its analysis.

As such, Shaffer is readily distinguishable (particularly in light of our Supreme

Court’s parallel holding in Eisenberg).6

Overall, Appellants have offered no compelling argument for the

enlargement of the holding in Shaffer, or the distinguishment of Eisenberg.

Consequently, we conclude that the evidence of Mr. LoStracco’s nolo

contendere plea was inadmissible to establish his liability in Appellants’ civil

____________________________________________

conviction entered on a plea of nolo contedere as evidence in a subsequent
civil matter where it was the fact of the conviction, not the plea, that was the
operative fact relied upon.” Id. at 848 (citing Eisenberg v. Dep’t of Public
Welfare, 516 A.2d 333, 336-37 (1986)). This is a correct statement of
Pennsylvania law, but it is inapplicable to the instant case. Here, Appellants
are solely concerned with admitting evidence of Mr. LoStracco’s alleged
admission of guilt. To be clear, the holding in Strain explicitly acknowledges
such an action is not permissible. Id. (noting that a nolo contendere plea is
designed “to protect a criminal defendant from use of the plea as an admission
of the defendant’s guilt or liability in a civil proceeding”).

6 Appellants’ reliance upon Folino v. Young, 568 A.2d 171, 173-74 (Pa.
1990), is also inapposite pursuant to the same distinguishment. Specifically,
the underlying criminal conviction in Folino was the result of a jury trial, and
the opinion contains no discussion of nolo contendere pleas. Id.

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case. Accord Eisenberg, supra at 335, Moser, supra at 606. The trial

court did not abuse its discretion or err in refusing to grant a JNOV against

Mr. LoStracco on this ground.7 No relief is due.

Although inartfully drafted,8 we discern Appellants’ second issue to be a

challenge to the trial court’s evidentiary ruling that excluded certain portions

of a report prepared by Dennis Houser, CPA (the “Houser Report”), who

conducted forensic accounting for the Bucks County District Attorney’s Office

as part of the prosecution of Mr. LoStracco. As argued by Appellants, this

issue implicates an order issued by the trial court which provided, in pertinent

part, as follows: “Plaintiffs, any parties, witnesses and attorneys are not

precluded from offering or referring to [the Houser Report] provided that no

reference shall be made to the District Attorney’s investigation, conclusions,

reports, or resulting criminal charges and proceedings.” Order, 8/15/18, at ¶

6 (emphasis in original).

____________________________________________

7 To the extent that Appellants’ arguments are addressed to the negligence
of Mr. LoStracco, we note that Appellants prevailed at trial on those claims.
See Verdict Slip, 10/2/18, at 1-4. As such, Appellants were not aggrieved by
the trial court’s denial of summary judgment as to those claims of negligence.
See Pa.R.A.P. 501.

8 To the extent that Appellants seek to raise additional issues under this
section of their brief, we find those arguments either: (1) duplicative of issues
discussed elsewhere in Appellants’ brief; or (2) waived for lack of substantive
development pursuant to Pa.R.A.P. 2119(a). See Communications
Network Int’l, Ltd. v. Mullineaux, 187 A.3d 951, 965 (Pa.Super. 2018)
(holding that an appellant waives claim of error where the appellant offers “no
controlling authority” in support of argument).

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We review a trial court’s evidentiary decisions under an abuse of

discretion standard. See Hassel v. Franzi, 207 A.3d 939, 950 (Pa.Super.

2019). “[W]here the evidentiary ruling turns on a question of law, our review

is plenary.” Buckman v. Verazin, 54 A.3d 956, 960 (Pa.Super. 2012).

Specifically, Appellants’ line of argument cites Pa.R.E. 404(b)(2) exhaustively

for the proposition that portions of the Houser Report allegedly documenting

the criminal prosecution of Mr. LoStracco were admissible.9 See Pa.R.E.

404(b)(2) (“This evidence may be admissible for another purpose, such as

proving motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.”).

Unfortunately, Appellants’ discussion of this claim is disorganized, and

fails to: (1) indicate which portions of the Houser Report should have been

admitted at trial, or are even relevant to this claim; (2) identify the non-

propensity purpose(s) that this evidence would have arguably been admissible

for under Rule 404(b)(2); and (3) enumerate any specific prejudice suffered

by Appellants as a result of this ruling. Rather, Appellants have presented

unadorned averments that the trial court’s evidentiary ruling somehow

impeded their ability to adduce testimony at trial. See Appellants’ brief at 44

(“By prohibiting or severely limiting available [Rule] 404(b)(2) evidence,

practically prohibiting use of the Houser Report, examining or cross-examining

____________________________________________

9 See Appellants’ brief at 44 (describing the Houser Report as the
“quintessential source of [Rule] 404(b)(2) evidence”).

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witnesses as allowed under Pennsylvania law was hamstrung.”). These

statements are coupled with block quotations of testimony presented without

context. Throughout this discussion, Appellants also misrepresent the trial

court’s ruling as having excluded the Houser Report in its entirety.

Setting aside these substantive deficiencies, our review of the certified

record indicates that Appellants never sought the admission of the Houser

Report pursuant to Pa.R.E. 404(b)(2) prior to taking an appeal to this Court.10

See Appellants’ Motions In Limine, 8/27/18, at ¶¶ 8-28 (requesting admission

of the Houser Report only for impeachment purposes); Appellants’

Memorandum, 4/30/19, at 16-19 (omitting Houser Report from Rule

404(b)(2) motion).11 Our review of the remainder of the certified record has

uncovered no preservation of this claim, and Appellants have not stated that

such a request was ever made to the trial court. Thus, this claim is waived

due to Appellants’ failure to raise it in a timely fashion. See Commonwealth

v. Thomas, 194 A.3d 159, 166 (Pa.Super. 2018) (“In order to preserve an

evidentiary objection for purposes of appellate review, a party must interpose

____________________________________________

10 In relevant part, the only Rule 404(b)(2) evidence referenced by Appellants
were records and transcripts pertaining to Mr. LoStracco’s disciplinary
hearings before the Board of Accountancy. Beyond mentioning them in
passing, Appellants do not substantively discuss these records and transcripts
in their explanation of their second claim. See Appellants’ brief at 46.

11 These are the only places of preservation with respect to Rule 404(b)(2)
arguments that are noted in the relevant portion of Appellants’ brief. See
Pa.R.A.P. 2117(c)(2), Appellants’ brief at 21-22.

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a timely and specific objection in the trial court.”); see also Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”).

Appellants’ third claim concerns the trial court’s post-trial ruling on joint

and several liability.12 Under pre-amendment law, the Restatement (Second)

of Torts governed, which provides that “[i]f the tortious conduct of each of

two or more persons is a legal cause of harm that cannot be apportioned, each

is subject to liability for the entire harm, irrespective of whether their conduct

is concurring or consecutive.” Neal v. Bavarian Motors, Inc., 882 A.2d

1022, 1027 (Pa.Super. 2005) (citing Restatement (Second) of Torts § 879).

“‘Whether liability for harm to a plaintiff is capable of apportionment is a

question of law for the court, not a question of fact for the jury.’” Id. “On

questions of law, our standard of review is de novo and our scope of review is

plenary.” Straub v. Cherne Industries, 880 A.2d 561, 566 (Pa. 2005).

At the outset, we note that Appellants’ discussion of this issue suggests

a misunderstanding of the trial court’s action. Although Appellants represent

that the trial court denied the imposition of joint and several liability outright,

____________________________________________

12 Pennsylvania has now eliminated joint and several liability in most cases
through the legislative enactment of the Fair Share Act. See 42 Pa.C.S.
§ 7102. However, Appellants’ claims accrued prior to the June 28, 2011
effective date of that Act. As such, Pennsylvania’s pre-amendment joint and
several liability paradigm applies in this case. See Rost v. Ford Motor Co.,
151 A.3d 1032, 1044 n.7 (Pa. 2016). We also note that the parties agreed by
stipulation that pre-Act liability law would govern.

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the trial court actually granted Appellants’ post-trial request with respect to

Mr. LoStracco and the Brett Defendants:

1. Plaintiff’s Motion for joint and several liability is GRANTED IN
PART. Liability is joint and several to Plaintiffs as awarded by the
jury on the count of negligence against Defendants Michael
LoStracco for $76,000, J. Daniel Brett for $38,000; and J. Daniel
Brett & Co., P.C. for $38,000; and DENIED otherwise.

Order, 10/29/18, at ¶ 1 (emphasis in original). As we understand it from

Appellants’ motion practice, this issue actually concerns the trial court’s

alleged error in failing to include Mr. Stevenson’s restitutionary sum in the

joint and several liability of Mr. LoStracco and the Brett Defendants. See

Appellants’ Motion for Post-Trial Relief, 10/9/18, at ¶ 29, Appellants’ Rule

1925(b) Statement, 12/19/18, at 5.

Overall, Appellants do not dispute that Mr. Stevenson was released from

the litigation in exchange for conceding his civil liability in the amount of his

restitutionary order. See Appellants’ brief at 27 (“In the civil case, just prior

to trial, [Mr. Stevenson] decided not to challenge the civil claims against him

and the parties all agree that the Verdict Slip should read, ‘It has already been

determined that Defendant Thomas Stevenson is liable to [Appellants] in the

amount of $516,696.32.”). As a memorialization of this agreement among

the parties, the trial court filed an order providing as follows:

IT IS HEREBY ORDERED, this 1st day of October, 2018,
Thomas and Terri Stevenson will not appear on the caption or on
the Verdict Slip and a statement will be made to the Jury indicating
that in a prior hearing, Thomas Stevenson had been Ordered to
pay restitution to [Appellants] in the amount of $516,696.32.

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Order, 10/1/18 (emphasis in original). Thereafter, Mr. Stevenson did not

participate in the proceedings as a party-defendant.

Consistent with the parties’ agreement, the verdict slip contained the

following statement on its first line: “It has already been determined that

Defendant Thomas Stevenson is liable to [Appellants] in the amount of

$516,696.32.” Verdict Slip, 10/2/18, at 1. Beyond this advisement, Mr.

Stevenson was not listed as a party-defendant on any section of the verdict

slip. Id. at 1-4. Consequently, the jury did not render any finding concerning

his liability, nor assign any damages attributable to his actions.

Appellants’ discussion of this issue is threadbare, and includes a bald

assertion that the “damages due to [Appellants] as a result of [Appellees’]

torts totaled $641,996.32.” Appellants’ brief at 53. There is no discussion of

the nature of Mr. Stevenson’s stipulated liability, the legal effect of his

omission from the verdict slip, or any refutation of the trial court’s reasoning.

Id. Appellants’ only substantive argument is the rote application of a list of

factors that have previously been identified under Pennsylvania law as

relevant to this inquiry, which include: (1) the identity of a cause of action

against each of two or more defendants; (2) the existence of a common, or

like duty; (3) whether the same evidence will support an action against each;

(4) the single, indivisible nature of the injury to the plaintiffs; (5) identity of

the facts as to time, place, or result; (6) whether the injury is direct and

immediate, rather than consequential; and (7) responsibility of the defendants

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for the injuria as distinguished from the same damnum. See Neal, supra at

1027 (quoting Voyles v. Corwin, 441 A.2d 381, 383 (Pa.Super. 1982)).

Appellants’ discussion of these factors makes mere passing mention of Mr.

Stevenson, while engaging in a protracted discussion of the agency

relationship between the Brett Defendants and Mr. LoStracco. See Appellants’

brief at 53-55. These tangential assessments do not support the central thesis

of Appellants’ third claim.

In contrast, the trial court presented the following cogent rationale for

declining to include Mr. Stevenson and his restitutionary amount in its joint

and several liability holding:

Thomas Stevenson conceded to his civil liability based upon his
conduct in the amount of $516,696.32 to [Appellants]. While the
[trial court] notes this amount mirrors his restitution Order from
2012, the [trial court] does not know specifically how this sum
was calculated, nor the specific components of loss it addressed
with relation to [Mr.] Stevenson’s conduct. There is no basis in
the record for the [trial court] to conclude that the negligence
identified by the jury as to the other Defendants concerned the
same items of loss [Appellants] sustained from Thomas
Stevenson’s prior criminal conduct. [Mr.] Stevenson was not an
accountant and did not work as an owner or employee of [the
Firm] as did the other Defendants. Furthermore, [Mr.] Stevenson
was not alleged by [Appellants] to have committed any manner of
professional negligence or malpractice as set forth against the
Brett Defendants and [Mr.] LoStracco.

Trial Court Opinion, 1/18/19, at 11.

Overall, we are persuaded by the trial court’s reasoning. Appellants

have not presented a compelling argument, and we discern no legal error in

the trial court’s conclusions. Accordingly, Appellant’s third claim fails.

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Appellants’ fourth claim seeks reversal of the trial court’s order refusing

to enter a JNOV with respect to the jury’s finding that Mr. LoStracco was

employed at Veneesa at the time of his “professional negligence.” See

Appellant’s brief at 56. “We will reverse a trial court’s grant or denial of a

[JNOV] only where we find an abuse of discretion or an error of law that

controlled the outcome of the case.” Pearson v. Philadelphia Eagles, LLC,

220 A.3d 1154, 1158 (Pa.Super. 2019).

On the verdict slip, the jury determined that Mr. LoStracco was

employed by both the Firm and Veneesa when he acted negligently. See

Verdict Slip, 10/2/18, at 3. Although this finding is arguably favorable to

Appellants’ claims,13 they nonetheless sought a JNOV that Mr. LoStracco was

not employed by Veneesa during that time frame. See Appellants’ Motion for

Post-Trial Relief, 10/9/18, at ¶¶ 83-93.

We discern that Appellants are claiming that it was somehow legally

impossible for Mr. LoStracco to be found guilty of negligence while he was

____________________________________________

13 In its Rule 1925(a) opinion, the trial court opined that Appellants could not
raise this issue on appeal because they were not “aggrieved” by the jury’s
finding. Although we ultimately find Appellants’ argument waived on different
grounds, we share the trial court’s incredulity concerning this line of argument.
See In re Estate of Pendergrass, 26 A.3d 1151, 1154 (Pa.Super. 2011)
(“Although a prevailing party may disagree with the trial court’s legal
reasoning or findings of fact, the prevailing party’s interest is not adversely
affected by the trial court’s ultimate order because the prevailing party was
meritorious in the proceedings below.”) (citing Pa.R.A.P. 501). In relevant
part, Appellants have not explained how this holding is detrimental to them.

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found to also be employed by Veneesa. See Appellants’ brief at 56

(“Professional negligence as a CPA can only occur while under the auspices of

a CPA firm not a construction company that in no way provides accounting

services.”). Across one page of argument, Appellants have cited no legal

authority in support of this claim.14 Accordingly, Appellants have waived this

issue for failure to develop their discussion. See Pa.R.A.P. 2119(a),

Communications Network Int’l, Ltd. v. Mullineaux, 187 A.3d 951, 965

(Pa.Super. 2018) (holding that an appellant waives claim of error where they

offer “no controlling authority”).

Order affirmed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/27/2020

____________________________________________

14 Appellants’ lone citation in this section is to our Supreme Court’s holding
in In re Adoption of S.A.J., 838 A.2d 616, 621 (Pa. 2003), in support of a
non-sequitur discussion of the agency relationship between Mr. LoStracco and
the Brett Defendants. Our review of this case reveals no on-point guidance.

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