January 30, 2014
PENN-AIRE AVIATION, INC., Appellant
DR. ROBERT BROCKER, JR., Appellee PENN-AIRE AVIATION, INC., Appellant
DR. ROBERT BROCKER, JR., Appellee
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.
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 conflict in the evidence in favor of the plaintiff. The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture.
Billig, supra, at 1048-1049 (internal citation omitted).
Viewing the trial court's vacation of the judgment in Appellant's favor as granting a JNOV in Brocker's favor, we are mindful that:
A JNOV can be entered upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/ or, (2) the evidence was such that no two reasonable minds could disagree that the verdict should have been rendered for the movant.
When reviewing a trial court's denial of a motion for JNOV, we must consider all of the evidence admitted to decide if there was sufficient competent evidence to sustain the verdict. I n so doing, we must also view this evidence in the light most favorable to the verdict winner, giving the victorious party the benefit of every reasonable inference arising from the evidence, and rejecting all unfavorable testim ony and inference. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weight accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. I f any basis exists upon which the jury could have properly made its award, then we must affirm the trial court's denial of the motion for JNOV. A JNOV should be entered only in a clear case.
Am . Future Sys. v. Better Bus. Bureau, 872 A.2d 1202, 1215 (Pa.Super. 2005) (citation omitted), aff'd by 923 A.2d 389 (Pa. 2007).
Alternatively, within the context that Appellant's first and second issues essentially challenge the new verdict in Brocker's favor rendered by the trial court following a non-jury trial, we acknowledge that:
Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, [ where] the issue…concerns a question of law, our scope of review is plenary.
The trial court's conclusions of law on appeal originating from a non-jury trial are not binding on an appellate court because it is the appellate court's duty to determine if the trial court correctly applied the law to t he facts of the case.
Wyatt, Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa.Super. 2009) citing Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa.Super. 2005) (citations omitted). After a careful review of the record and mindful of the foregoing perspectives and standards of review, we find that the trial court did not err in vacating the judgment in Appellant's favor. Brocker was entitled to judgment because the statute of limitations expired prior to Appellant's amendment of his complaint to com port with the new theory of recovery and measure of damages which Appellant introduced at trial.
The trial court reasoned:
The right to amend a pleading is generally considered to be construed liberally. Moreover, the trial court has broad discretion in ruling on a party's motion to am end the pleadings. Ecksel v. Orleans Constr. Co., 519 A.2d 1021 (Pa.Super. Ct . 1987). However, the right to amend is not absolute. The Superior Court of Pennsylvania has stated "an amendment will not be allowed, however, when it is against a positive rule of law, where it states a new cause of action after the statute of limitations has run or when it will surprise or prejudice the opposing party." See Somerset Community Hospital v. Allan B. Mitchell & Assoc., 685 A.2d 141, 147 (Pa.Super. Ct. 1996)(quoting Horowitz v. Universal Underwriters, 580 A.2d 395 (Pa.Super. Ct. 1990)). Although the Supreme Court of Pennsylvania has not proffered a comprehensive definition of the term "cause of action", our Superior Court has defined it as a "different theory" or "basis for recovery." Goffredo and Sons, Inc., v. S.MG. Corporation, 446 A.2d 255, 256 (Pa.Super. Ct. 1982)(citing Junk v. East End Fire Dep't, 396 A.2d 1269, 1277 (Pa.Super. Ct. 1978)); West Penn Power Co. v. Bethlehem Steel Corp., 348 A.2d 144, 156 (Pa.Super. Ct. 1975). Thus, where a party seeks to amend its complaint and in so doing asserts a new cause of action which is statutorily barred or which surprises or prejudices the opposing party, the amendment should not be allowed.
In the case sub judice, a careful review of the trial record shows that while [ Brocker] did not specifically object on statute of limitations grounds, as that argument was made in his Post-Trial Motion and accompanying briefs, [ Brocker] was, in fact, surprised by the new allegation and subsequent amendment of the Com plaint which occurred during the trial. See N.T., Civil Non-Jury Trial, May 10, 2012, pp, 68-71. He did strenuously argue against such an amendment both in his motion for a nonsuit and later on prior to the court taking a recess before rendering its verdict. Id. at p. 68, ll. 3-23; p. 98, ll. 23-25, p. 99 ll. 6-7. We do find that amending the Complaint did operate to constitute a new cause of action as the original allegations revolved around the 1986 Agreement, not the 1991 Agreement. In Pennsylvania, the applicable statute of limitations on a contract claim is four (4) years. See 42 Pa.C.S.A. § 5525. We agree with [ Brocker] when he argues:
In the instant case, the proposed amendment alleges that a contract was entered into on or about January 7th or 8thof 1991. This new cause of action would violate the statute of limitations as of January 9th, 1995. [ Appellant] testified, at trial, that at some point in 2005 he was made aware of the fact that [ Brocker] had sold the [ plane] . Using 2005 as the year of the alleged breach, the amendment would have violated the statute of limitations in 2009.
Brief in Support of [ Brocker's] Motion for Post-Trial Relief, 7. Furthermore, counsel for the defense admitted he was caught by surprise in the midst of the trial to learn that the 1991 Agreement existed and that agreement was, in fact, the one in dispute. See N.T., Civil Non-Jury Trial, May 10, 2012, p. 70, ll. 4-17.
Therefore, we find that the amendment to the Complaint was beyond the statute of limitations, and, thus, improper. Moreover, even though [ Brocker] did not assert the affirmative defense of the statute of limitations until his post-trial brief, we do not deem the defense waived. We should not have allowed the amendment as it not only caused surprise but also prejudice to [ Brocker] . Somerset Community Hospital, 685 A.2d at 147 (Pa.Super. Ct . 1996) (citations omitted).
Trial Court Opinion, 12/ 31/12, at 5-8 (unnumbered).
The following rules and case law support our determination that the trial court did not err in vacating the prior judgment in Appellant's favor.
The material facts on which a cause of action or defense is based shall be stated in a concise and summary form.
The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.
Pa.R.C.P. 1019(a), 1020(a).
The purpose of the pleadings is to place the defendants on notice of the claims upon which they will have to defend. A complaint must give the defendants fair notice of the plaintiff's claim s and a summary of the material facts that support those claims.
Carlson v. Community Ambulance Services, Inc., 824 A.2d 1228, 1232 (Pa.Super. 2003) (internal citations omitted).
Amendments to pleadings are in general liberally permitted. However,
[ a] n amendment introducing a new cause of action will not be permitted after the Statute of Limitations has run in favor of a defendant.... However, if the proposed amendment does not change the cause of action but merely amplifies that which has already been averred, it should be allowed even though the Statute of Limitations has already run.
Krause v. Great Lakes Holdings, Inc., 511 A.2d 1182, 1190 (Pa.Super. 1989) (internal citations omitted).
Whatever rights accrued to the plaintiff in the [ breach] he claim s against his opponent, were dissolved by him in the alembic of his own [ inaction] .
Turtzo v. Boyer, 88 A.2d 884, 886 (Pa. 1952).
'The rule [ that equity will not enforce a stale claim ] is peculiarly applicable where the difficulty of doing entire justice arises through the death of the principal participants in the transactions com plained of, or of the witness or witnesses, or by reason of the original transactions having become so obscured by tim e as to render the ascertainm ent of the exact facts impossible.'
Patton v. Commonwealth Trust Co., [ Executor] 119 A. 834, 836 (Pa. 1923) (internal citation omitted) (emphasis supplied).
The purpose of these limitation periods is to expedite litigation and thus discourage delay and the presentation of stale claims which may greatly prejudice the defense of such claims. In light of the important purpose served by limitations periods, this Court has held that statutes of limitation are to be strictly construed.
Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 575 (Pa.Super. 2007) citing Gustine Uniontow n Assocs., Ltd. v. Anthony Crane Rental, I nc., L.P., 842 A.2d 334, 346 (2004).
I t is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period. Thus, the statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations.
Ferraro v. McCarthy-Pascuzzo, 777 A.2d 1128, 1133 (Pa.Super. 2001) (internal citations omitted).
Instantly, Appellant admitted that "[ t] his lawsuit was commenced on June 22, 2007 by filing a praecipe for the issuance of a writ of summons. A complaint was filed on January 10, 2008. Amended complaints were filed on March 13, 2008 and on June 24, 2008 in response to preliminary objections." Appellant's Brief at 4. Appellant further explained that Appellant's "second Amended Complaint (mislabeled "Third Amended Com plaint") had alleged 'on or about July 5, 1 9 8 6, [ Appellant] sold the Aircraft to [ Brocker] . The Aircraft was sold to [ Brocker] at wholesale ($325, 000.00) and the parties verbally agreed that when [ Brocker] ultimately resold the Aircraft, [ Brocker] would pay to [ Appellant] any profit over $375, 000.00, in addition to any other expenses incurred in the interim by [ Brocker] with [ Appellant] .'" I d. at 5 (citation to reproduced record omitted) (emphasis supplied).
Appellant additionally conceded that at trial, "Taylor testified that in January, 1991, Brocker expressed concerns about the value of the plane following a landing accident. Taylor and Brocker reached an agreement that [ Appellant] would guarantee that Brocker would receive no less than $375, 000.00 for the plane. In exchange, Brocker would pay to [Appellant] 50 % of all proceeds in excess of $ 375, 00 0.0 0." Id. at 5 (citations to reproduced record omitted) (emphasis supplied). Appellant acknowledged that "the proof at trial…established that the contract was form ed in 1991 (not 1986) and that [ Appellant] was to receive 50% (not 100%) of the proceeds above $375, 000.00." Id. at 6. The breach of the alleged 1991 oral agreement occurred on or about March 2005, following Brocker's resale of the plane without providing any monies to Appellant. I d. at 5. Appellant discovered the breach in " May, 2005[ .] " I d. at 16.
Hence, by Appellant's own admission, the trial testimony showed that not only was the nature and timing of the disputed agreement different from what Appellant had averred in the original and amended complaints filed in 2008, but that even the quantum of the damages sought was dissimilar from Appellant's original allegations. Such a varied position during the 2012 trial effectively constitutes a new theory of recovery and a new measure of damages, which do not relate back to the original complaint. We are not persuaded that the different theory and quantum of damages proffered in the May 2012 trial merely amplify the prior cause of action that was asserted, such that the amendment is not untimely.
As the trial court correctly observed, Appellant only had four years from the alleged 2005 breach to initiate a breach of contract claim concerning the 1991 oral agreement seeking 50% of the profits above a $375, 000.00 resale price. Appellant never did so. Further, the amendment obtained at trial did not am plify the previous allegations concerning the breach of a different type of agreement, made five years prior to the one adduced at trial, for twice the dam ages sought at trial.
Appellant's com plaints only specifically referenced the 1986 written sale agreement for the plane, and the pleadings averred that the Appellant would receive 100% of the profits above $375, 000.00 if the plane was resold. Thus, Appellant's failure to act until the 2012 trial bars his action.
Appellant contends that Brocker's failure to raise the statute of limitations issue when he moved for a nonsuit at the end of Appellant's case waived that basis for relief. The trial court rebutted this argument and reasoned:
Notwithstanding [ Brocker's] argument that the statute of limitations was violated, we also agree with [ Appellant's] argument that, in essence, as the statute of limitations is an affirmative defense when such is not raised, it is deemed waived. Ingrassia Constr. Co. [v. Walsh], 486 A.2d [ 478, ] 482 [ (Pa.Super. 1984)] . However, we cannot reconcile that rule to circumstances such as we confronted at trial when opposing counsel is caught unawares with an unexpected amendment to the Complaint which operates to create a new cause of action over an agreement not previously articulated or pled by [ Appellant] . Even granting learned counsel's making arguments "off the cuff" in light of changed circumstances in the midst of trial, we cannot fault defense counsel for not raising the myriad numbers of possible defenses on the spur of the moment. Moreover, to assign fault to defense counsel for not raising such defenses is to gloss over the surprise and prejudice that [ Brocker] encountered in facing a wholly new cause of action based upon a 1991 Agreement that was not, until adduced via testim ony during trial, made the subject of the instant suit.
Trial Court Opinion, 12/ 31/ 12, at 7-8.
Indeed, Appellant discounts that the essence of Brocker's argument was the variance between the pleadings and the testimony adduced at trial. See N.T., 5/ 10/12, at 68-71. Further, Appellant would have us ignore that Brocker's counsel specifically argued:
And today is the first that we've heard, that I 've heard that this agreement did not happen contemporaneously with the written contract, but it was some separate contract some five years later. Some separate agreement five years later. [ ] .
Secondly, your Honor, I would argue and I'm admitting that I'm running this off the cuff as I did not expect to hear that this agreement happened some six—ah, possibly five years later. [ ] .
So for those reasons your Honor, I would welcome the opportunity to brief that, because like I said, I'm---I was not prepared to make that argument here today because I didn't expect to hear that. Um, for those reasons I would argue [ Appellant] failed to meet their burden in their case and I would ask for mandatory nonsuit.
Id. at 68, 70, 71.
We cannot ignore our well-settled jurisprudence that Appellant's failure to timely am end his com plaint prior to the expiration of the statute of limitations precludes Appellant's recovery of dam ages. Accordingly, we find that the trial court did not err in vacating its prior entry of judgment in Appellant's favor, because Appellant's amendment is barred by the statute of limitations which expired in 2009.
Our resolution of Appellant's first and second issue renders moot Appellant's third claim of error, which was premised on our reversal of the t rial court 's order.
Appellant's fourth issue contends that the trial court erred in precluding " [ Appellant] from seeking payment from Brocker for incurred, unpaid hangar rents under any theory." Appellant's Brief at 38. We recognize:
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.
Motions for summary judgment necessarily and directly implicate the [ Appellant] '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 t rial 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.
Chris Falcone, Inc. v. Ins. Co. of the State of Pennsylvania, 907 A.2d 631, 635 (Pa.Super. 2006) (internal citation omitted). Initially, we note that aside from citing case law positing our standard of review and role relative to our examination of this issue, Appellant cites no additional jurisprudence to develop his argument. Appellant's failure effects waiver. See Korn v. Epstein, 727 A.2d 1130, 1135 (Pa.Super. 1999) ("arguments not appropriately developed are waived") (em phasis in original) (internal citations omitted).
Even if Appellant's references to the reproduced record are sufficient to preclude waiver, we find that the following trial court determinations rebut Appellant's assignment of error:
[ W] e note Brocker was billed for hangar rental, fuel costs associated with flying the plane to inspection sites, as well as other maintenance fees associated with the plane, which he then paid. [ ] . Brocker was continually invoiced and paid when notified of the bills.
We note that while [ Appellant] [ raises claim s regarding] … services such as piloting services, which included flight instruction, …the flight instruction appears to be within the framework of the 1986 sales agreement as evidenced by the attached letter to the sales agreement…[ noting that] Taylor would personally fly with Brocker for 100 hours to be completed by August 19, 1986.
Here, Taylor [ Appellant's owner], on behalf of Appellant, asserts that a "multitude of services to Brocker" were performed and which Brocker then accepted. See [ Appellant's] Brief in Opposition To Brocker's Motion for Summary Judgment, 13. Some of these services consisted of providing hangar space for Brocker's plane, piloting services and flight instruction. [ ] The services rendered were billed to Brocker who then paid the invoices once received. The only records submitted to this court evidence that Brocker compensated the Appellant for services rendered or expenses paid for the plane. [ ] As the evidentiary record before us presented no dispute of material facts on this issue, partial summary judgment in favor of Brocker was, therefore, appropriate.
Trial Court Opinion, 4/29/13, at 5, 6, 8-9 (unnumbered) (some citations to the record omitted). We find that the trial court's grant of summary relief in Brocker's favor is particularly apt, where the trial court noted that it "afforded [Appellant] time to supplement the record with any bills or invoices which were submitted [to Brocker] and not paid [and] [n]o further records were submitted [by Appellant]." Id. at 6 n.3 (citation to the record omitted).
In all, we conclude that the trial court did not err in finding that the statute of limitations barred Appellant's action for the breach of the 1991 oral contract. Likewise, we deny Appellant's assignment of error regarding the trial court's grant of summary relief in Brocker's favor regarding hangar fees.
Order affirmed. Judgment Entered.