J-S57041-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RYAN LEONARD                                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                         Appellant

                    v.

KELLER WILLIAMS REALTY
INTERNATIONAL, INC., KELLER
WILLIAMS PHILADELPHIA-NE MARKET
CENTER, PHILADELPHIA REGIONAL
REALTY, LLC, LEE ABRAMS, KELLER
WILLIAMS REAL ESTATE AND BANK OF
AMERICA

                         Appellees                      No. 644 EDA 2014


              Appeal from the Order Entered January 23, 2014
               In the Court of Common Pleas of Bucks County
                       Civil Division at No: 2014-0357


BEFORE: DONOHUE, MUNDY, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                        FILED DECEMBER 04, 2014

      Appellant, Ryan Leonard, appeals pro se from the January 23, 2014

order entered in the Court of Common Pleas of Bucks County, denying his

Petition for Preliminary Injunction. Following review, we affirm.

      Appellant   initiated   an   action   against   Appellees    alleging   fraud,

fraudulent   misrepresentation,    intentional   interference     with   prospective

contractual relations, and a violation of Pennsylvania’s Unfair Trade Practice

and Consumer Protection Law, all relating to a residential property owned by

Appellee Bank of America and offered for sale by Appellees Philadelphia

Regional and listing agent Lee Abrams (“Abrams”) of Keller Williams Real
J-S57041-14


Estate (collectively “Appellees”).       In his complaint, and the amended

versions thereof, Appellant sought specific performance for the sale of the

property to Appellant as well as monetary damages. Appellant also sought

to enjoin the sale of the property by petition for injunctive relief, the denial

of which gave rise to this appeal.

        As the trial court explained:

        The underlying issue in this case revolves around the sale of a
        residential property located at 99 Upland Drive, Southampton,
        PA (“the property”) which [Appellant] was interested in
        purchasing. On January 17, 2014, [Appellant] filed a Complaint
        against Appellees, asserting Abrams (who was acting on behalf
        of all co-Appellees) made fraudulent representations to
        [Appellant] as to the (un)availability of the property to be
        shown. The nature of the alleged misrepresentations made by
        Abrams are twofold, and consist of the following: (1) Abrams
        informed [Appellant] that the property was not available to be
        shown and later showed the property to other prospective
        buyers and (2) Abrams informed [Appellant] that the property
        was “under contract” on December 18, 2013. [Appellant] holds
        that Abrams knew (or should have known) that both of these
        communications were false and [Appellant] justifiably relied on
        them.

Trial Court Opinion (“T.C.O.”), 5/22/14, at 2 (footnote and citations to

record omitted).

        In his petition for injunctive relief, Appellant sought to enjoin Appellees

from proceeding with a closing on the property scheduled for January 28,

2014.     In the petition, Appellant requested “only that the sale of the

property be temporarily enjoined so that [Appellant] be given an opportunity

to have his claims decided on the merits.” Emergency Petition for




                                        -2-
J-S57041-14


Preliminary or Special Injunction, 1/17/14, at ¶ 14.      He did “not seek to

require the sale of the property be made to [him].” Id.

     The trial court conducted a hearing on Appellant’s petition on January

23, 2014 and provided the following detailed summary of evidence

presented at that hearing:

     The property was listed on December 2, 2013. According to
     [Appellant], it was listed on TREND (“the website to allow the
     public as well as other realtors to see the property”) as active.

     At the hearing, [Appellant] explained that he had been
     interested in the property based on its size and location and
     continuously expressed that interest to his real estate agent,
     Tom Byrne, of Prudential Felte Realty. An affidavit of Mr. Byrne,
     although it was not entered into evidence at this hearing, was
     considered by us. Thereafter, on December 4, 2013 Mr. Byrne
     contacted [listing agent] Abrams and was informed that the
     property could not be shown at that time. Abrams explained
     that “there were still repairs being done to the home at that time
     on behalf of [seller] Bank of America despite that the property
     was listed as active.” Between December 4, 2013 and December
     13, 2013 Mr. Byrne contacted or attempted to contact Abrams to
     schedule a showing on eleven (11) different occasions. On
     December 13, 2013 Abrams stated he would call the following
     Monday if the property was available to be shown or to provide
     an update. After receiving no response from Abrams, Mr. Byrne
     contacted him on December [18], 2013 and was informed that
     the property was “under contract.” According to the Complaint,
     “Abrams acknowledged to Mr. Byrne that the property was
     shown to other potential buyers, which included his own clients.”

     As a result, [Appellant] first contacted Keller Williams’ in-house
     legal department and was referred to both Dave Conord, the
     regional director of [] Keller Williams for Pennsylvania, New
     Jersey, and Delaware, and Bob Roman, the operating principal
     for Keller Williams Philadelphia Northeast Market Center. E-
     mails were exchanged between [Appellant] and Mr. Roman on
     numerous occasions between December 20, 2013 and January 7,
     2014. Additionally, [Appellant] received a letter from Keller
     Williams on January 2, 2014.

                                   -3-
J-S57041-14


     [Appellant] avers that the property was not under contract on
     December 18, 2013 as Abrams informed him.

     On January 2, 2014, [Appellant] was informed that Abrams
     reached out to Mr. Byrne asking if [Appellant] would be
     interested in submitting a backup offer in case the original sale
     did not go through.       [Appellant] explained he would be
     interested in doing so but only after he had an opportunity to
     view the property.

     On January 11, 2014 [Appellant] was able to view the property.
     On January 13, 2014 he submitted an offer of $451,000, which
     was over the asking price of $404,900.

     As of the date of the hearing, the property was scheduled to be
     sold on January 28, 2014.

     Abrams testified that the property initially went to sheriff’s sale
     in October of 2013. [Bank of America] decided to sell the
     property as-is as opposed to making any unnecessary repairs.
     The property was listed as “active” on MLS.com (a real estate
     website), as [Appellant] indicated, because Abrams was not
     instructed by Bank of America to indicate otherwise and he
     expected the property “to be cleaned any day.” According to
     Abrams, he “did not receive any instruction from the seller to
     remove it as active at that time.” Bank of America contracts
     their asset management to a company named “Steward Lender
     Service.” The asset manager for this particular property is Roger
     Bustillos. On December 2, 2013 Abrams received a listing
     agreement from the asset manager. Shortly thereafter Abrams
     walked through the property and informed the asset manager
     that “nothing had been done” on the property yet. Safeguard
     Properties was employed as a field service team to physically
     inspect the property on behalf of Bank of America.             The
     inspection took place and the property was totally cleaned and
     ready to be viewed on December 15, 2013. Abrams was made
     aware that there was an issue with mold in the property which
     was later addressed at the end of December.

     At the outset, Abrams testified that he had over twenty (20)
     agents contacting him on behalf of clients that were interested in
     the property and, to the best of his ability, he spoke with
     everyone and informed them to check back with him regarding a
     showing of the property or, in the alternative, check with

                                    -4-
J-S57041-14


     “Showing Time,” which is a separate and third party entity that
     is responsible for setting up the showing appointments. One of
     these agents was Mr. Byrne (who was [Appellant’s] agent).
     According to Abrams, this is normal protocol in real estate, as
     agents have to register with Showing Time and “it reduces any
     sort of liability and ensures whoever’s going to look at the
     property is who they say they are.” Abrams instructed Showing
     Time that there were to be no showings of the property until
     everything was clean in order to limit Bank of America’s potential
     liability, as there was debris in the residence and holes in the
     floor and he did not want any potential buyers being injured. On
     December 16, 2013 Abrams instructed Showing Time to start
     setting appointments. In fact, the MLS.com website specifically
     listed the Showing Time phone number and instructed agents to
     call Showing Time directly to make an appointment for a
     showing. Abrams stated that he did not contact Mr. Byrne on
     December 16 or December 17, 2014 to specifically inform him
     the property was available to be shown. However, on December
     16, 2013, six potential buyers viewed the property and any one
     of these buyers could have submitted a bid.

     Abrams went on to testify that he was consistent in instructing
     all agents who made an inquiry about the property to continually
     follow up with him as to when the property would be shown. He
     stated . . .
         . . . if you look at . . . the last e-mail that I have with Mr.
         Byrne, I was actually going to the property to take a look
         at it . And I told him to follow-up with me just to prevent
         myself ever from getting in a situation such as this.

        ....

        . . . I pretty much told [the agents] to follow-up with me.
        I’d like to sit here and say I can remember every
        conversation I had with Mr. Byrne, and I can’t. There
        were, like I said, there were a lot of agents interested in
        this property.

     Another agent from Prudential Felte (where [Appellant’s] agent
     was employed) viewed the property on December 16, 2013.

     The individuals who at this time were in the process of
     purchasing the property and had entered into a purchase
     agreement were owner occupants who “have been very

                                    -5-
J-S57041-14


     aggressive.” The owner occupants contacted Bank of America
     initially and were told to contact Abrams. They did so and
     initially requested that Abrams submit a bid blindly on their
     behalf. They did not make being shown the property a condition
     for making a bid, as they had seen the property previously when
     it was up for Sheriff sale. On December 16, 2014, the first day
     the property was available for showing, Abrams submitted a bid
     on behalf of these unnamed buyers. This was the only bid
     submitted on the property, and it was accepted by Bank of
     America on December 17, 2013. These buyers submitted their
     offer with “special financing,” or a construction loan. Abrams
     represented both the buyer and Bank of America, and earned a
     commission of five percent (5%). His commission would have
     been two percent (2%) had he represented only the bank and
     the property was sold to another buyer.

     The listing report, Exhibit A to [Appellant’s] complaint, states the
     property was sold on December 23, 2014. Appellee Abrams
     went on to explain:

        . . . the bank accepts an offer, and this is normal for any
        bank that I deal with. They will accept the offer through
        a system that I use called Equator. And once they accept
        that, the bank will not sign a single document until they
        have everything executed by the buyer.

        Now, what that entails is the bank first has to accept an
        offer. When they accept that offer, they generate what’s
        called their corporate addendum.          That corporate
        addendum pretty much protects the bank.

        And as a matter of fact, normally an attorney would tell a
        buyer not to sign it unless they want the property. It’s
        that one-sided of . . . an addendum because the bank
        never lived in the property . . .

        . . . that addendum is drawn up and then sent to me
        upon the acceptance of the offer. That is then sent to the
        buyer’s agent. . . The agent then has to make any
        changes to the agreement of sale or just draw up a new
        agreement of sale that matches the same terms of the
        corporate addendum. . .




                                    -6-
J-S57041-14


           And then all those items are then drawn up, put together,
           sent back to Lender Stewart Services. Lender Stewart
           Services then sends it to, for final approval, to Bank of
           America and the investors on the loan. So it’s not just a
           matter of the asset manager always signing. They have
           to get approval before they do that.

           So it’s not unusual for a property to be accepted and then
           ten days later, 15 days later, to go to pending. So I can’t
           put it to pending until we have a fully executed
           agreement.

       Thereafter the bid was accepted on December 17, 2013, and the
       contract was not finalized until December 23, 2014. Abrams
       explained that he would have had his clients submit an offer
       during this six-day period, as banks do not necessarily go with
       the highest offer. In fact, in terms of [Appellant’s] offer, Abrams
       stated that there would have been some concern with his offer,
       as it was a conventional mortgage and the repairs needed for
       the property would not be considered by the bank.

       Abrams testified that he did not prevent anyone from trying to
       put a bid on the property, nor did he give [Appellant’s] agent
       any incorrect information.

T.C.O., 5/22/14, at 3-9 (footnotes and citations to record omitted).

       At the conclusion of the hearing, the trial court announced that the

preliminary injunction was denied. N.T. Injunction Hearing, 1/23/14, at 84.

Appellant filed a timely appeal to this Court.1 In response to the trial court’s

order dated March 5, 2014, Appellant filed a timely Concise Statement of
____________________________________________


1
  Appellant’s appeal from the January 23, 2014 order was timely filed on
Monday, February 24, 2014, because February 22, 2014 fell on a Saturday.
See 1 Pa.C.S.A. § 1908 (stating that for computations of time, whenever the
last day of such period shall fall on a Saturday or Sunday or a legal holiday,
such day shall be omitted from the computation); see Pa.R.A.P. 903, Note
(noting Pa.R.A.P. 107 incorporates by reference the rules of construction of
the Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991).



                                           -7-
J-S57041-14


Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b) asserting

five claims of trial court error. Appellant reordered those issues in his brief

and we have reordered them here for purposes of our discussion as follows:

       1. Did the trial court commit an abuse of discretion or error of
          law by basing its ruling on the misplaced premise that
          contract principles governed the dispute at issue?

       2. Did the trial court commit an abuse of discretion or error of
          law by holding that the appellant was not and could not be
          entitled to relief simply because there was never a written
          contract agreement entered into?

       3. Did the trial court commit an abuse of discretion or error of
          law by permitting Appellees’ counsel to ask repeated leading
          questions of his own client, who is a named party in this case,
          over the objection of Appellant, after that witness was first
          called and cross-examined by Appellant as an adverse party?

       4. Did the trial court commit an abuse of discretion or error of
          law by prohibiting Appellant from cross-examining the
          Appellee through the use of appropriate hypothetical
          questions at the injunction hearing?

       5. Did the trial court commit an abuse of discretion or error of
          law by prohibiting Appellant, as the party with the burden of
          proof, to give final closing remarks as a rebuttal?

Appellant’s Brief at 2-3.2



____________________________________________


2
  Appellant acknowledged to the trial court that he is an attorney but was
pro se in these proceedings. N.T. Injunction Hearing, 1/23/14, at 8. He is
pro se before this Court as well. We remind Appellant that proceeding pro
se does not relieve him of his responsibility to comply with the appellate
rules relating to briefs and, in particular, the requirements to include a
statement of jurisdiction and the order in question. Pa.R.A.P. 2111(a)(1)
and (2). Neither appears in his brief filed with this Court.



                                           -8-
J-S57041-14


      We first note “that, in general, appellate courts review a trial court

order refusing or granting a preliminary injunction for an abuse of

discretion.”   Summit Towne Centre, Inc. v. The Shoe Show of Rocky

Mount, Inc., 828 A.2d 995, 1000 (Pa. 2003) (citations omitted).

      [T]his standard of review is to be applied within the realm of
      preliminary injunctions as follows: [W]e recognize that on an
      appeal from the grant or denial of a preliminary injunction, we
      do not inquire into the merits of the controversy, but only
      examine the record to determine if there were any apparently
      reasonable grounds for the action of the court below. Only if it is
      plain that no grounds exist to support the decree or that the rule
      of law relied upon was palpably erroneous or misapplied will we
      interfere with the decision of the [trial court].

Id. (quotations and citations omitted). “Thus, in general, appellate inquiry

is limited to a determination of whether an examination of the record reveals

that ‘any apparently reasonable grounds’ support the trial court’s disposition

of the preliminary injunction request.”    Id. at 1001 (quotations, citations

and footnote omitted).

      In Summit Towne Centre, our Supreme Court explained the

“apparently reasonable grounds” standard as follows:

      In ruling on a preliminary injunction request, a trial court has
      “apparently reasonable grounds” for its denial of relief where it
      properly finds that any one of the following “essential
      prerequisites” for a preliminary injunction is not satisfied. See .
      . . County of Allegheny v. Commonwealth, 518 Pa. 556, 544
      A.2d 1305, 1307 (1988) (“For a preliminary injunction to issue,
      every one of the [ ] prerequisites must be established; if the
      petitioner fails to establish any one of them, there is no need to
      address the others.”). First, a party seeking a preliminary
      injunction must show that an injunction is necessary to prevent
      immediate and irreparable harm that cannot be adequately
      compensated by damages. Second, the party must show that

                                     -9-
J-S57041-14


      greater injury would result from refusing an injunction than from
      granting it, and, concomitantly, that issuance of an injunction
      will not substantially harm other interested parties in the
      proceedings. Third, the party must show that a preliminary
      injunction will properly restore the parties to their status as it
      existed immediately prior to the alleged wrongful conduct.
      Fourth, the party seeking an injunction must show that the
      activity it seeks to restrain is actionable, that its right to relief is
      clear, and that the wrong is manifest, or, in other words, must
      show that it is likely to prevail on the merits. Fifth, the party
      must show that the injunction it seeks is reasonably suited to
      abate the offending activity. Sixth and finally, the party seeking
      an injunction must show that a preliminary injunction will not
      adversely affect the public interest.

Id. at 1001 (citations omitted).

      In his 1925(b) Statement of Matters Complained of on Appeal,

Appellant included the two issues dealing with contractual principles that he

now asks this Court to consider as the first two issues in this appeal.          In

doing so, Appellant is asking this Court to inquire into the merits of the

controversy. In accordance with the standard announced by our Supreme

Court in Summit Towne Centre, we decline to do so and instead review

the record to ascertain whether there exist any reasonable grounds for the

trial court’s denial of the injunction.

      Addressing the contract issues in the context of the prerequisites for

an injunction, the trial court stated:

      [Appellant] claims that we based our ruling “on the misplaced
      belief that contract principles governed this dispute” and also
      that we abused our discretion “by holding that the fact that
      [Appellant] had not entered in to a written contract agreement
      with [Appellees] prevented [Appellant] from being entitled to
      relief. As previously set forth, we based our denial of his
      requested preliminary injunction on the fact that [Appellant] did

                                          - 10 -
J-S57041-14


       not satisfy numbers two (2) and six (6) of the necessary
       prerequisites. We found that there would be substantial harm to
       the potential buyers as well as to [Bank of America,] the
       ultimate grantor of the failed mortgage and loan, in stopping the
       sale from going forward.        Additionally, we recognized the
       adverse impact issuing a preliminary injunction in this case
       would have on the public interest, as everything dealing with
       real estate should and must be in writing and the issuance of
       this injunction would essentially telegraph just the adverse, that
       a written and presumptively valid agreement for the purchase of
       real estate could be set aside under similar lingual
       circumstances. Our brief comments regarding our concern that
       there was no valid written contract between [Appellant] and any
       Appellee was an afterthought, questioning the plausibility of
       [Appellant’s] claims.     We had no doubts, however, about
       Abrams’ credibility and did not find any of his testimony to be
       false, hence casting further doubt on [Appellant’s] claims.
       However, we eventually relied on [Appellant’s] failure to
       establish the necessary [prerequisites] as our reason for denying
       [his] preliminary injunction.

T.C.O., 5/22/14 at 13-14 (footnote omitted).3

       Our   examination      of   the   record,    as   thoroughly   and   accurately

summarized in the excerpt of the trial court’s opinion set forth above,

reveals “apparently reasonable grounds” supporting the trial court’s denial of

the preliminary injunction request.            Because reasonable grounds exist to

____________________________________________


3
   By footnote, the trial judge explained that he denied the injunction at the
conclusion of the hearing based on Appellant’s failure to establish the second
and sixth prerequisites. However, in the course of analyzing the record for
purposes of writing his 1925(a) opinion, he concluded that Appellant failed
as well to establish any of the remaining prerequisites. T.C.O., 5/22/14 at
13, n. 8. In light of our Supreme Court’s directive that there is no need to
discuss the remaining prerequisites after establishing the petitioner’s failure
to establish any one of them, we shall not address the first, third, fourth and
fifth prerequisites here. See County of Allegheny v. Commonwealth,
544 A.2d 1305, 1307 (Pa. 1988).



                                          - 11 -
J-S57041-14


support the order, we conclude the trial court neither abused its discretion

nor committed error of law in denying Appellant’s petition and, therefore, we

shall not interfere with the trial court’s decision. Appellant is not entitled to

any relief on his first or second issues.

      Appellant’s remaining issues raise challenges to evidentiary rulings

relating to leading questions, hypothetical questions, and rebuttal during

closing argument. As this Court has recognized:

      The standard of review for a trial court's evidentiary rulings is
      narrow. The admissibility of evidence is solely within the
      discretion of the trial court and will be reversed only if the trial
      court has abused its discretion. An abuse of discretion is not
      merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill-will
      or partiality, as shown by the evidence of record.

Commonwealth v. Hanford, 937 A.2d 1094, 1098 (Pa. Super. 2007),

appeal denied, 956 A.2d 432 (Pa. 2008) (citations, quotation marks and

footnote omitted).

      Appellant’s first evidentiary challenge relates to “repeated leading

questions” posed by Appellees’ counsel when cross-examining Appellee

Abrams who was called by Appellant as an adverse witness.

      In its opinion, the trial court explained that Appellant was given much

“latitude to fashion his own questions, whether they were leading or

otherwise. Therefore, [Appellees’] counsel’s questioning of Abrams was on

cross-examination, as he did not call this witness, and, therefore, leading

questions were appropriate.”        T.C.O., 5/22/14, at 11 (citing Pa.R.E.

                                      - 12 -
J-S57041-14


611(c)(1) and (2) (the court should allow leading questions on cross-

examination and when a party calls an adverse party)).4 We find no abuse

of discretion in the trial court’s ruling in this regard.

       In Katz v. St. Mary Hosp., 816 A.2d 1125 (Pa. Super. 2003), this

Court stated, “The law in this area is clear. The allowance of leading

questions lies within the discretion of the trial court and a court’s tolerance

or intolerance of leading questions will not be reversed absent an abuse of

discretion.” Id. at 1128 (citing Commonwealth v. Johnson, 541 A.2d 332

(Pa. Super. 1998)). Moreover, our review of the hearing transcript reveals

that counsel for Appellees began his cross-examination of Abrams on page

68 of the hearing transcript.        Many of the questions posed are accurately

described as leading.       However, no objection to the leading nature of the

questions was lodged until page 74 of the transcript, after counsel asked and

Abrams answered approximately two dozen questions, when Appellant

stated, “Objection, Your Honor. I tried to sit back as much as I can, but I’m

just going to object to the continuous leading nature of the questions.” N.T.

Injunction Hearing, 1/23/14, at 74.            Appellant’s failure to object at any

earlier point in the testimony renders his objections waived. Katz, 816 A.2d

____________________________________________


4
  We note that the trial court included the text of Pa.R.E. 611(c) in its
opinion but did not include the final sentence of Rule 611(c)(2), which
provides that “[a] witness [examined as a hostile witness or an adverse
party] should usually be interrogated by all other parties as to whom the
witness is not hostile or adverse as if under redirect examination.”



                                          - 13 -
J-S57041-14


at 1128 (citing Beaumont v. ETL Services, Inc., 761 A.2d 166 (Pa. Super.

2000); Pa.R.C.P. 227.1(b)(1)).

      However, even if Appellant’s objections were not waived, he is not

entitled to relief. All testimony elicited from Abrams by Appellees’ counsel

could have been elicited through questioning that was not leading.

Moreover, much of Abrams’ testimony in response to questioning by

Appellees’ counsel simply amplified the testimony elicited in response to

questions posed by Appellant during his direct examination that spanned 38

pages of testimony. N.T. Injunction Hearing, 1/23/14, at 30-68. Therefore,

even if Appellant’s objections were not waived and even if the trial court

erred in allowing the three leading questions posed after Appellant objected,

that error was harmless. Katz, 816 A.2d at 1128-29 (where “none of the

elicited responses is of such a character that the information would not have

come into evidence but for the leading format . . . any error was harmless”).

Appellant is not entitled to relief based on leading questions.

      Appellant next argues the trial court abused its discretion or

committed error of law by sustaining objections to hypothetical questions

Appellant posed to Abrams.       In the course of questioning Abrams as on

cross-examination, Appellant asked:

      If you were in a scenario where you just represent the seller,
      there’s no dual representation as there was here, and somebody
      comes in with an offer that’s below the asking price, and another
      potential buyer comes in with an offer that is significantly above
      the asking price, do you typically counter the higher offer that
      come[s] in at a number that would be within the asking price

                                     - 14 -
J-S57041-14


       range and within the range of what the property would be valued
       at, but still higher than the other offer?

N.T. Injunction Hearing, 1/23/14, at 61.5          Counsel for Appellees objected

and the trial court sustained the objection on the grounds the hypothetical

assumed facts not in evidence and irrelevant to the proceedings. The trial

court commented, “I guess the early bird here who was willing to submit an

offer before looking at the property, so to speak, other than that initial look-

through, is the one that got the worm.” Id. at 62.

       In its opinion, the trial court explained that “hypothetical questions are

proper only with expert witnesses.” T.C.O., 5/22/14, at 11 (citing Pa.R.E.

702; O’Malley v. Peerless Petroleum, Inc., 423 A.2d 1251 (Pa. Super.

1980); SEPTA v. W.C.A.B., 477 A.2d 9, 12 (Pa. Cmwlth. 1984). “Even so,

‘[h]ypothetical questions must be based on matters which appear of record

and on facts which are warranted by the evidence.” Id. at 11-12 (quoting

SEPTA, 477 A.2d at 12).            While hypothetical questions are most often

employed in the questioning of expert witnesses, it is true under all
____________________________________________


5
  In his brief, Appellant sets forth four additional “hypothetical questions”
disallowed by the trial court. Appellant’s Brief at 21. While we do not
necessarily concur in Appellant’s characterization of these questions as
“hypothetical,” e.g., asking Abrams if he “believe[d] that at all times
[Abrams] acted in the best interest of the bank” or “[h]ow long it would
have taken [Abrams] to call [Appellant’s agent] and tell him the property
was listed,” we do not believe that the questions are based on “material” or
“uncontradicted” facts of record. Further, the trial court sustained objection
to those four “hypothetical questions” but did not state his reasons for doing
so and did not suggest that the rulings had anything to do with hypothetical
questions.



                                          - 15 -
J-S57041-14


circumstances that “[a] hypothetical question need not contain all the facts

of the case, but only those which are material and uncontradicted.”

O'Malley, 423 A.2d at 1259.

      Appellant contends the hypothetical question quoted above was proper

“as supported by the facts and the record. Namely, [A]ppellant had indeed

made an offer above asking price but . . . [A]ppellee sold the property to his

own client for far below the asking price,” resulting in a higher commission

to Abrams and a lower sale price to his client, Bank of America. Appellant’s

Brief at 20.   Appellant established through his questioning of Abrams that

Abrams received a higher commission and Bank of America netted a lower

sale price as a result of the sale to other buyers. In essence, that was what

Appellant was trying to establish with the hypothetical question, and he was

able to establish those facts through testimony properly elicited from

Abrams. The problem with the hypothetical is that it included “facts” that

were not established by the testimony.       For instance, Abrams did not

represent only the seller in this case. The offer that was presented below

the asking price was the only offer on the table when presented to the seller,

Bank of America, and it was accepted weeks before Appellant visited the

property and presented an offer.      Further, the accepted offer included

financing with a construction loan whereas Appellant’s offer included a

conventional mortgage that could raise underwriting concerns because of the




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appraised value of the property and the financing required for repairs

needed for the property. N.T. Injunction Hearing, 1/23/14, at 57-61.

      We find no abuse of discretion on the part of the trial court for

sustaining the objection to a hypothetical question based on facts that do

not appear of record and are not warranted by the evidence.           Appellant’s

fourth issue fails for lack of merit.

      In his fifth and final issue, Appellant argues the trial court abused its

discretion or committed error of law by prohibiting Appellant, as the party

bearing the burden of proof, from providing final closing remarks as a

rebuttal.   Appellant acknowledges that he was able to present closing

argument to the trial court at the conclusion of testimony. However, based

on the closing remarks offered by Appellees’ counsel, Appellant sought to

offer rebuttal. The trial court denied him that opportunity, noting the case

was not in federal court and the trial court was not going to “have back and

forth.” N.T. Injunction Hearing, 1/23/14, at 82. When Appellant asserted

that Appellees’ counsel misrepresented one of Appellant’s claims in his

closing argument, the trial court acknowledged he “wasn’t paying much

attention anyway. I already made my mind up based on the standards that

are required for the issuance of a preliminary injunction.”     Id.     The trial

court then proceeded to explain his conclusion that Appellant failed to satisfy

the second and sixth prerequisites for granting a preliminary injunction. Id.

at 82-84.


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      Appellant argues that Pa.R.C.P. 225 supports his contention that he

should have been provided the opportunity to present rebuttal. Appellant’s

Brief at 23. However, Rule 225 simply authorizes attorneys for each party to

make an opening address to a jury and address the jury after the close of

testimony. The Note to the rule indicates that the trial court “by local rule or

otherwise” may regulate the number, length and order of addresses.” Pa.

R.C.P. 225, Note.

      Appellant quotes the Buck County Rules and, in particular, Local Rule

223(f), in support of his position. That rule provides:

      (f) At the trial of any cause, the party having the affirmative of
      the issue on the pleadings shall open the case and counsel for
      the defendant, at his option, may make his opening address
      before any testimony is taken on behalf of the plaintiff. This
      order shall be reversed in making closing arguments to the jury,
      except in cases where the defendant offers no evidence.

Bucks Cty. R.C.P. 223(f).

      Clearly, the Buck County rule provides for the order of closing “to the

jury,” and does not address bench trials or preliminary injunction hearings.

Moreover, at the conclusion of testimony, the trial court asked Appellant if

there was anything else he wanted to present. Appellant responded, “Judge,

I will be under one minute because I know we went over everything at

length.   . . . So just my closing remarks, if a minute at most.”          N.T.

Injunction Hearing, 1/23/14, at 79. Appellant immediately proceeded with

his closing argument. He did not suggest to the trial court that Appellee was

required to present closing argument first, nor did he object when counsel

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for Appellee offered his closing remarks upon completion of Appellant’s

argument.

       Appellant did not preserve any objection relating to closing arguments.

Moreover, the rule upon which he relies dictates the order of closing

arguments presented to a jury. Finally, the trial court acknowledged a lack

of attention to the closing arguments in any event. We do not find that the

trial court abused its discretion or committed error of law by precluding

Appellant’s closing argument rebuttal.             Any error, if error occurred, was

harmless. Appellant’s fifth issue does not afford him any grounds for relief.

       Because Appellant has not demonstrated any basis for relief, we shall

not disturb the ruling of the trial court denying Appellant’s petition for

preliminary injunctive relief.6

____________________________________________


6
  Appellees submitted that this appeal should be dismissed as moot because
the subject property was conveyed to its current owner on February 24,
2014. Appellees’ Brief at 7-8 (referring to an August 1, 2014 listing report in
Appellees’ Reproduced Record that purports to reflect a February 24, 2014
sale date). In support of their contention, Appellees cite various cases and
Pa.R.A.P. 1972(a)(4) (“Except as otherwise prescribed by this rule, . . . any
party may move: (4) to dismiss for mootness.”). We recognize that
appellate courts do not decide moot issue and that an appeal is subject to
dismissal if an event occurs that renders the grant of requested relief
impossible. Delaware River Preservation Co., Inc. v. Miskin, 923 A.2d
1177, 1183, n.3 (Pa. Super. 2007). However, there is no motion before us
as authorized by Pa.R.A.P. 1972 (a)(4) and Appellees have not provided
reference to anything that might appear in the certified record to warrant
dismissal as moot sua sponte. See Pa.R.A.P. 1921, Note (“An appellate
court may consider only the facts which have been duly certified in the
record on appeal. Commonwealth v. Young, [] 317 A.2d 258, 264
(1974).”). Further, it is not the duty of this Court to scour the record on a
(Footnote Continued Next Page)


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      Order affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/4/2014




                       _______________________
(Footnote Continued)

party’s behalf and we decline to do so. See Hayward v. Hayward, 868
A.2d 554, 558 (Pa. Super. 2005) (citations omitted). In the alternative,
Appellees suggest the appeal should be dismissed for lack of jurisdiction for
failure to name an indispensable party to the action, i.e., the current owner.
Appellees’ Brief at 8-9. Again, there is no motion before us and the record
does not include any information relating to a “current owner.” Therefore,
we decline Appellees’ invitation to dismiss the appeal for mootness or failure
to include an indispensable party.



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