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[U] Penn-Aire Aviation, Inc. v. Brocker

Superior Court of Pennsylvania

January 30, 2014

PENN-AIRE AVIATION, INC., Appellant
v.
DR. ROBERT BROCKER, JR., Appellee PENN-AIRE AVIATION, INC., Appellant
v.
DR. ROBERT BROCKER, JR., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order entered December 31, 2012, in the Court of Common Pleas of Venango County, Civil Division, at No(s): 2007-00906

Appeal from the Order entered April 1, 2010, in the Court of Common Pleas of Venango County, Civil Division, at No(s): 2007-00906

BEFORE: PANELLA, ALLEN, and STRASSBURGER [*], JJ.

MEMORANDUM

ALLEN, J.

Penn-Aire Aviation, Inc., (" Appellant"), appeals from the trial court's order granting partial summary judgment in favor of Dr. Robert Brocker, Jr., (" Brocker"). Appellant further appeals from the trial court's order vacating a

judgment that had been previously entered in Appellant's favor and against Brocker. We affirm .

The trial court recited the posture and facts of this matter as follows:
[ Appellant] instituted suit by filing a Com plaint on January 10, 2008, alleging that [ Brocker] breached a contract with the [ Appellant] . [ Brocker] filed Preliminary Objections on or about February 14, 2008. Subsequently, [ Appellant] filed an Amended Complaint on or about March 11, 2008. [ Brocker] again filed Preliminary Objections on or about April 3, 2008.
We held a hearing on [Brocker's] Preliminary Objections, after which [ Appellant] filed another Amended Complaint on or about June 20, 2008. Both sides deposed each other on May 27, 2009, after which at the completion of discovery [ Appellant] filed his Summary Judgment motion. We then held a hearing on the Summary Judgment motion and thereafter granted [ Appellant] an additional ten (10) days to present evidence to the court in support of the claims. At the expiration of such time and upon [ Appellant] submitting to the court no additional evidence, on April 1, 2010, we granted partial summary judgment in favor of [ Brocker] as to all additional expenses in [ Appellant's] com plaint, leaving the Breach of Contract cause of action remaining. On January 11, 2012, a Pre-Trial Conference was held, and on May 10, 2012, we conducted a one-day bench trial. At the close of [ Appellant's] case, [ Brocker] orally motioned for a compulsory non-suit and, in support thereof, alleged the [ Appellant] had failed to satisfy the burden of proof that [ Brocker] had breached the 1986 sale agreement as alleged in the Complaint. [ Appellant's] response to [ Brocker's] motion was that if necessary he could simply amend the complaint to conform to the testimony given before the bench. We did not immediately rule upon [ Brocker's] motion for non-suit, however, at the conclusion of the trial we did sua sponte query [ Appellant] if he desired to am end the Com plaint, for the testim ony given at trial did not match the allegations set forth in the Com plaint. [ Appellant] consented to an amendment and further stated he would rely upon our reading of the Complaint. We then dictated into the record what the amendment would be and, following recess, entered a ruling in favor of [ Appellant] . Both parties subsequently filed timely post-trial motions. [ Appellant] presents the court with its Post-Trial Motion to Modify and/ or Mold the Verdict. [ Brocker] presents the court with its Post-Trial Motion for a Compulsory Non-suit.
This case revolves around the purchase of a 1976 Piper Cheyenne II airplane ("airplane") by [ Brocker], from [ Appellant] . I n July of 1986, [ Brocker] paid $325, 000.00 for the purchase of that airplane from [ Appellant] . [ Brocker] then resold that airplane in 2005. [ Appellant] initiated suit on January 10, 2008, alleging in the Com plaint that [ Brocker] breached the 1986 Sales Agreement ("1986 Agreement") by failing to pay to [ Appellant] any profit that [ Brocker] received in excess of $375, 000.00, upon resale of the airplane. Following the completion of the discovery process, [ Appellant] filed its Summary Judgment Motion. On January 27, 2010, we heard arguments on that motion and, as stated previously, granted [ Appellant] additional tim e to present evidence in support of their claims. No further evidence was forthcoming and we, therefore, granted partial Summary Judgment in favor of [ Brocker] by Order of Court dated April 1, 2010. We left standing a Breach of Contract Action filed by [ Appellant] .
On May 10, 2012, we held a one-day bench trial. Through trial testim ony by [ Appellant], it was adduced that, in fact, the 1986 Agreement had not been breached. Moreover, [ Appellant] further testified that both parties fully perform ed their respective duties under the 1986 Agreement. However, notwithstanding such testim ony, [ Appellant] then asserted that, instead, it was the verbal contract ("1991 Agreement") entered into by the parties around January of 1991, whereby [ Appellant] guaranteed to [ Brocker] a sale price for the airplane of $375, 000, if [ Brocker] wished to sell the airplane that was breached. Supposedly, in the 1991 Agreement, in return for this guarantee, [ Brocker] also agreed to a 50/ 50 split of any sale proceeds in excess of that guaranteed amount should [ Brocker] opt to sell somewhere else. See, N.T., Civil Non-Jury Trial, May 10, 2012, p. 83, ll. 11-24. On cross, [ Brocker] testified he sold the airplane to Aerial Survey International based in Colorado for the sum of $555, 000.00, on March 17, 2005. Following the end of [ Brocker's] testim ony, the evidentiary record was closed and the parties each gave their closing arguments. [ Brocker] reiterated his continuing argument that the newly discovered and alleged 1991 Agreement did not, in fact, exist for there was no consideration given by [ Brocker] for the alleged return promise by [ Appellant] to buy the airplane. [ Brocker] further argued that [ Appellant] did not meet the requisite burden of proof for the testim ony adduced at trial did not support the allegations made in the Com plaint. I n his closing argument, [ Appellant] countered by saying that there was real concern on the part of [ Brocker] as to the value of the airplane, hence the alleged agreement the parties entered into. [ Appellant] then argued that [ Brocker] had second thoughts and wished to renegotiate or, simply, end the agreement altogether. [ Appellant] further argued that the 2004 phone conversation between the parties where [ Brocker] asked to be released from the agreement evidenced not only that the agreement did exist, but that the eventual sale of the airplane by [ Brocker] to another party without paying the agreed upon amount in excess of the guaranteed price amounted to a breach.
Following closing arguments, we did allow [ Appellant] to amend his Complaint to conform to testimony adduced at trial, namely that the agreement at issue and the one that was alleged as breached was the 1991 Agreement. We then recessed to consider the testimony and evidence, as well as consult the appropriate authorities before rendering our verdict. Ultimately, we found that the evidence supported the fact that a 1991 Agreement did, in fact, exist and was valid and enforceable. We further found that consideration did support such an agreement as evidenced by the substantial upkeep and mintenance repair bills [ Brocker] paid to keep the airplane in good and running condition. See, N.T., Civil Non-Jury Trial, May 10, 2012, pp. 102-03. Moreover, we denied [ Brocker's] motion for Non-suit, and granted judgment for [ Appellant] in the amount of $54, 954.56. Subsequently, the parties each filed … Post-Trial Motions.

Trial Court Opinion, 12/ 31/12, at 1-5 (unnumbered).

On December 31, 2012, the trial court denied Appellant's post-trial motion to m old the verdict, and granted Brocker's post-trial motion for a nonsuit, and vacated the judgment which the trial court had previously entered in Appellant's favor. The trial court determined that the statute of limitations barred Appellant's action. On January 7, 2013, Appellant filed a timely notice of appeal, which was later amended on January 17, 2013. On

February 14, 2013, judgment was entered in Brocker's favor. Appellant and the trial court com plied with Pa.R.A.P. 1925.

Appellant presents the following issues for our review:
A. Whether the trial court erred by creating a new exception to the rule of waiver and granting j.n.o.v. on the ground that, although it was unopposed, the motion to amend the complaint to conform to the evidence should have been denied as being barred by the statute of limitations?
B. Even if the motion to amend the complaint should have been denied under the court's new exception to the waiver rule, whether the trial court erred by entering j .n.o.v. where there was testimony submitted without objection to support appellant's cause of action?
C. I f this Honorable Court reverses the trial court's granting of [ Brocker's] posttrial [ sic] motion, should this Court address the questions of law raised in Appellant's motion for posttrial [ sic] relief by correcting the trial court's award calculation and entering an award of prejudgment interest?
D. Whether the trial court erred in entering partial summary judgment against Appellant on damage claims for unpaid hangar rents in light of the existence of a genuine dispute of material facts?

Appellant's Brief at 2-3.

Initially, we note that Appellant's appeal may not be properly before us because "in a case where nonsuit was entered, the appeal properly lies from the judgment entered after denial of a motion to remove nonsuit." Billig v. Skvarla, 853 A.2d 1042, 1048 (Pa.Super. 2004). Appellant did not file a motion to remove the nonsuit. However, we recognize that Brocker's own unorthodox request for a nonsuit as a post-trial motion may have led to Appellant's procedurally flawed appeal. See Pa.R.C.P. 227.1 (governing post-trial motions, and while not specifically enumerating nonsuits as a relief, providing that the trial court may grant " any other appropriate order"); Compare Benson v. Benson, 515 A.2d 917, 918-919 (Pa.Super. 1986) (prohibiting additional post-trial motions after the trial court has entered an order regarding original post-trial relief sought). I n the interest of providing closure to the parties, we will reach the merits of this appeal.

Appellant's first and second issues contend that the trial court erred in granting Brocker's post-trial motion for a nonsuit and vacating the prior judgment in Appellant's favor. Examining the trial court's order granting a nonsuit, we recognize:

[ Entry of nonsuit] is proper only if the factfinder, viewing all the evidence in favor of the plaintiff, could not reasonably conclude that the essential elements of a cause of action have been established. When a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from that evidence, resolving any ...

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