J-A11029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEBORAH R. HARGY,                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                         Appellant

                    v.

DOM BUCCI, INDIVIDUALLY AND AS
AGENT FOR CENTURY 21 CREST REAL
ESTATE, LTD. AND CENTURY 21 CREST
REAL ESTATE, LTD.,

                         Appellees                   No. 3044 EDA 2014


               Appeal from the Order Entered October 17, 2014
              In the Court of Common Pleas of Delaware County
                     Civil Division at No(s): No. 13-2106.

BEFORE: FORD ELLIOTT, P.J.E, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.:                               FILED JULY 14, 2015

      Appellant, Deborah R. Hargy, appeals from the order granting

Appellees’ motion for summary judgment entered on October 17, 2014. We

affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      Appellant entered into a residential agreement of sale on or
      about March 22, 2007 with [Dom Bucci and Century 21 Crest
      Real Estate, Ltd. (collectively “Bucci”)] acting as a dual-agent for
      Appellant and the seller of the property. Appellant alleges that
      on July 27, 2007, Bucci caused a [s]ettlement [n]otice to be
      issued to Appellant with less than the required ten [] day notice
      and then, on July 29, 2007, informed her that the scheduled
      August 1, 2007 settlement was canceled.               According to
      Appellant, she relied on [Bucci’s] representation in not attending
      the settlement that did in fact take place on August 1, 2007.
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      Appellant alleges further that on September 12, 2007 the seller
      informed her that [Bucci] represented that Appellant never made
      any mortgage applications, did not intend to make any mortgage
      applications, would not proceed to settlement[,] and had not
      provided a legally cognizable reason for not proceeding to
      settlement.

      On May 8, 2008, the seller sued Appellant for breach of contract
      for not attending settlement, not applying for a mortgage[,] and
      not securing approval for a mortgage loan. A verdict was
      entered against Appellant on or about March 15, 2011 finding
      her in material breach of the agreement of sale and awarding
      the seller damages, including Appellant’s deposit in the amount
      of [$10,000.00]. Subsequently, on or about July 13, 2012, an
      [o]rder was [entered] awarding the seller attorney[‘s] fees based
      upon findings that, inter alia, Appellant and her counsel
      exhibited dilatory, obdurate, vexatious[,] and bad faith conduct,
      that Appellant voluntarily undertook to absent herself from the
      scheduled settlement on August 1, 2007 because she self-
      admittedly deemed the settlement notice invalid, and that
      Appellant failed to timely submit the name of the requisite
      mortgage lender to [Bucci].1

Trial Court Opinion, 12/17/14, at 1-2 (internal quotation marks, alteration,

and citations omitted).

      The trial court accurately summarized the procedural history of this

case as follows:

      On March 11, 2013, Appellant filed suit against [Bucci] with
      claims    for   deceit,   professional   malpractice,   intentional
      interference with a contractual relationship or business relations,
      breach of fiduciary duty to principal[,] and fraud. Appellant’s
      deceit claim is based upon [Bucci’s] alleged false representation
      on July 27, 2007 that the August 1, 2007 settlement was
      canceled.     Appellant’s claim for professional malpractice is

1
  This Court dismissed Appellant’s appeal from the judgment entered in the
breach of contract case brought by the seller against Appellant, and affirmed
the order granting attorney’s fees. Hargy v. J & V Developers, 1027 EDA
2011 (Pa. Super. May 23, 2011) (per curiam); J & V Developers v. Hargy,
87 A.3d 890 (Pa. Super. 2013) (unpublished memorandum).


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     related to [Bucci’s] alleged failure to give the seller Appellant’s
     mortgage applications, failure to use a [n]otice of [t]ermination
     of [a]greement of [s]ale/[a]greement of [s]ale [r]elease and
     [d]istribution of [d]eposit [m]oney form, breach of duty of
     loyalty, breach of fiduciary duty and/or exaggeration,
     misrepresentation[,] or concealment of pertinent facts. The
     claim that [Bucci] intentionally interfered with a contractual
     relationship or business relations is based upon [Bucci’s] alleged
     false representation that the August 1, 2007 settlement was
     canceled, failure to provide the seller with Appellant’s mortgage
     applications, false representation to seller that [Appellant] no
     longer wanted to purchase the property, false representation to
     seller that it was free to put the subject property back on the
     market, [and] false representation to Appellant that the
     agreement of sale was still in force after August 1, 2007. . . .
     Appellant’s claim that [Bucci] breached their fiduciary duty to a
     principal relates to [Bucci’s] alleged adverse actions, bad faith
     conduct[,] and conduct inconsistent with their agency to
     Appellant, including representing that the August 1, 2007
     settlement was canceled and testifying that Appellant was not
     told the settlement was canceled. Appellant’s final claim, fraud,
     is based upon [Bucci’s] alleged misrepresentation that the
     August 1, 2007 settlement was canceled.

     Following preliminary objections, Appellant filed an [a]mended
     [c]omplaint on June 10, 2013. [Bucci’s] subsequent preliminary
     objections, filed on July 2, 2013, were overruled by [o]rder
     dated September [4], 2013. Bucci filed an [a]nswer and [n]ew
     [m]atter on September 24, 2013 claiming, inter alia, that
     Appellant’s claims are barred by the applicable statute of
     limitations and the doctrines of res judicata and collateral
     estoppel. A [m]otion for [m]ediation was filed by Appellant[] on
     November 20, 2013 and on December 9, 2013 the parties
     entered into a [s]tipulation to attend mediation pursuant to
     Delaware County Rule of Civil Procedure 1042.21, which was
     approved by [o]rder on February 10, 2014. On June 17, 2014,
     the parties attended mediation, but were not able to settle the
     matter. That same day, [Bucci] filed their motion for summary
     judgment. Appellant filed a [r]eply [m]emorandum to [Bucci’s]
     [s]ummary [j]udgment [motion] on July 14, 2014. . . .

     On August 13, 2014, Appellant filed a [p]raecipe to [l]ist [Bucci’s
     s]ummary [j]udgment [m]otion for [o]ral [a]rgument stating
     that a second mediation was scheduled for September 15, 2014


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      and that both parties were seeking oral argument on [Bucci’s
      m]otion for [s]ummary [j]udgment on or after October 1, 2014.
      Pursuant to that [p]raecipe, [argument] was held on [Bucci’s
      m]otion for [s]ummary [j]udgment on October 2, 2014 and,
      thereafter, the October 1[7], 2014 Order was entered granting
      summary judgment in [Bucci’s] favor.

Trial Court Opinion, 12/17/14, at 3-4 (internal citations omitted).         This

timely appeal followed.2

      Appellant presents two issues for our review:

      1. Was it error of law, error of fact[,] and/or abuse of discretion
         for the [trial court] to conclude [A]ppellant could have
         produced an expert report in violation of the parties’
         mediation agreement (pursuant to Local Rule 1042.21),
         and/or in violation of Pa.R.C.P. 1035.3, without the leave of
         court (pursuant to Pa.R.C.P. 1035.3) [A]ppellant requested?

      2. Was such error of law, error of fact[,] and/or abuse of
         discretion harmless error?

Appellant’s Brief at 4.

      In her first issue on appeal, Appellant contends that the trial court

erred by concluding that she could have filed an expert report prior to the

trial court entering summary judgment.         This question requires us to

interpret various rules of court and the parties’ agreement to attend

2
   On November 12, 2014, Appellant filed a concise statement of errors
complained of on appeal without being ordered to do so by the trial court.
On December 19, 2014, the trial court issued its Rule 1925(a) opinion. Both
issues raised on appeal were included in Appellant’s concise statement.
Nonetheless, we note that Appellant’s concise statement “fails in most
respects to comply with the requirements of the Rule, including, most
notably, that it is not concise.” PHH Mortg. Corp. v. Powell, 100 A.3d
611, 614 (Pa. Super. 2014). The trial court, however, did not find that
Appellant acted in bad faith. We therefore cannot find all issues waived.
See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 420-
421 (Pa. 2007).


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J-A11029-15


mediation.   As such, our standard of review is de novo and our scope of

review is plenary.    Roth v. Ross, 85 A.3d 590, 592 (Pa. Super. 2014)

(citation omits) (interpretation of rules of civil procedure is a question of

law); cf. Mazurek v. Russell, 96 A.3d 372, 378 (Pa. Super. 2014) (contract

interpretation is a question of law).

      Appellant contends that she was unable to file an expert report prior to

the trial court’s entry of summary judgment because of a confluence of

events.   First, she argues that the mediation agreement entered into

between her and Bucci prohibited her from filing the expert report while

mediation was ongoing.     She then argues that after mediation failed, she

was prohibited from filing an expert report pursuant to Pennsylvania Rule of

Civil Procedure 1035.3. She concludes that if she had been able to file an

expert report, she would have been able to raise a genuine question of

material fact as to the statute of limitations defense advanced by Bucci.

      In her response to Bucci’s motion for summary judgment, Appellant

included an affidavit in which she averred that it was necessary to file an

expert report to raise a genuine issue of material fact.      To explain the

absence of an expert report, Appellant attached a letter that Bucci’s counsel

submitted to the trial court. Appellant argued that the letter evidenced an

agreement between her and Bucci not to file expert reports. The relevant

portion of Bucci’s counsel’s letter reads as follows:

      As the parties agreed to pursue mediation, substantive discovery
      and depositions have not been conducted in an effort to save


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J-A11029-15


      costs and focus the attention of the parties on a possible
      resolution. Based on the foregoing, it is respectfully requested
      by the parties that the [trial c]ourt vacate the March 17, 2014,
      [t]rial [a]ssignment and [c]ase [m]anagement [o]rder during the
      pendency of the mediation process.

Appellant’s Reply Memorandum to Defendants’ Summary Judgment Motion,

7/14/14, Exhibit A.

      It is evident from the plain language of this letter that the parties

never agreed to halt production of expert reports.       Although the parties

decided not to engage in depositions, interrogatories, or document requests,

they did not agree to forego the production of expert reports. Bucci’s filing

of   the   motion   for   summary   judgment    should   have   clarified   any

misconstruction on the part of Appellant. Furthermore, Appellant does not

point to any other place in the record that evidences a broader agreement.

As such, any argument that the agreement between Appellant and Bucci was

broader is waived. See Pa.R.A.P. 2117, 2119.

      As the parties’ agreement did not prohibit the filing of expert reports,

Appellant was free to supplement the record with an expert report within 30

days of Bucci’s motion for summary judgment. See Pa.R.C.P. 1035.3.3 She

chose, however, not to supplement the record with an expert report.         We

conclude that the trial court correctly held that Appellant was able to file an

expert report within 30 days of Bucci’s motion for summary judgment;

3
 Appellant nowhere asserts that additional discovery was necessary for the
production of an expert report. Hence, Appellant cannot complain that the
parties’ agreement to proceed with mediation hindered her acquisition of an
expert opinion.


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J-A11029-15


however, she failed to do so. Therefore, the trial court correctly granted

Bucci’s motion for summary judgment once Appellant failed to raise a

genuine issue of material fact.4

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 7/14/2015




4
   Furthermore, even if we concluded the trial court erred by ruling on the
motion for summary judgment without Appellant filing an expert report,
such error was harmless. As this Court noted, Appellant became aware of
Bucci’s alleged malpractice (and related misconduct) in 2007. See J & V
Developers v. Hargy, 87 A.3d 890 (Pa. Super. 2013) (unpublished
memorandum), at 11-12 (citation omitted). Nonetheless, Appellant failed to
file suit until 2013, well after the statute of limitations had expired. No
expert report could cure this deficiency. Likewise, Appellant’s argument that
she could not have expected the verdict in the previous case is without
merit. As this Court has noted, her arguments in the prior litigation were
“frivolous.” Id. at 10, 26 (citation omitted).


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