J-A32044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID SOLAN AND SLM COMMERCIAL,                  IN THE SUPERIOR COURT OF
INC.,                                                  PENNSYLVANIA

                            Appellants

                       v.

SILVERMAN FAMILY PARTNERSHIPS,
INC., HERMAN SILVERMAN AND ANN
SILVERMAN, BUCKINGHAM GREEN I
GENERAL PARTNERSHIP, BUCKINGHAM
GREEN II GENERAL PARTNERSHIP, COLD
SPRINGS GENERAL PARTNERSHIP,
GREEN ACRES GENERAL PARTNERSHIP,
PLAZA ONE GENERAL PARTNERSHIP,
SOUTH MAIN STREET GENERAL
PARTNERSHIP, JEFFRA NANDAN, LEDA
MOLLY, JENNY SILVERMAN AND BINNY
SILVERMAN,

                            Appellees                No. 1379 EDA 2016


                  Appeal from the Order Entered April 19, 2016
                 in the Court of Common Pleas of Bucks County
                      Civil Division at No.: 2007-05125-30-7


BEFORE: DUBOW, J., RANSOM, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 24, 2017

        Appellants, David Solan and SLM Commercial Inc., a corporation

owned and controlled by him,1 appeal from the order and bench trial verdict



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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which    awarded       them    $46,157.09        as   leasing   commissions   due   from

Appellees.    Appellants first asserted they were due over a million dollars

under an oral agreement. They eventually reduced this claim, in steps, to

about $333,000. They now challenge the sufficiency of the evidence for the

trial court’s reduced damages award, noting that they had already made

intermediate reductions in their demands. We affirm.

        The underlying facts are substantially undisputed, even though the

parties disagree on the amounts owed.                 From 1995 until 2004, Appellant

Solan was employed as the general manager of numerous real estate

properties owned or controlled by Herman Silverman for himself, his family,

and related entities.       As an employee, Solan received a full salary for the

performance of these services.           (See Appellants’ Brief, at 5).       Notably for

this appeal, Mr. Solan had a separate oral agreement with Mr. Silverman, to

receive a 3% commission for any leases, options, or renewals of Silverman

properties which he originated on his own, independently from his

employment duties. In late 2004, Mr. Silverman informed Mr. Solan that his

employment was coming to an end, and his duties would be transferred to a

management company. As the employment relationship was unwinding, Mr.



                       _______________________
(Footnote Continued)
1
 Appellants maintain in their brief that “[f]or all intents and purposes, David
Solan and his company were one and the same, at least insofar as the
services provided[.]” (Appellants’ Brief, at 35).



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Solan claimed additional commissions for these leases. Appellees rejected

most of them.

        This lawsuit stems from Appellants’ claim for unpaid commissions

under the oral contract.         Mr. Solan admits on appeal that he presented

virtually no rent rolls or similar documentation to support the extent of his

claim for commissions under the oral contract.            (See id. at 10).       He

maintains that such leasing information “was exclusively in the possession of

the Appellees[.]” (Id.; see also id. at 22). Instead, he argues that he met

his burden of proof by presenting “multiple representative examples of

leases,” and inviting Appellees to “refute this proof.” (Id. at 11). Appellants

first   claimed    damages       of   $1,140,864.67,   reduced   (in   stages)   to

$333,648.54. Appellants argue the original claim for over a million dollars

was only a “ballpark estimate[.]” (Id. at 27.). After a bench trial, the trial

court awarded damages of $46,157.09, the amount conceded by Appellees.

        This timely appeal followed the trial court’s denial of Appellants’ post-

trial motions, and the entry of the limited verdict.2

        Appellants present three questions for our review:

               1. Whether the [trial] court committed an error of law
        and/or capriciously disbelieved and/or disregarded the evidence
        in finding that Appellants did not produce sufficient evidence to
        prove damages when Appellants in fact produced sufficient
        evidence to prove damages with reasonable certainty?
____________________________________________


2
  Appellants presented a timely statement of errors on May 12, 2016. The
trial court entered an opinion on July 5, 2016. See Pa.R.A.P. 1925.



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            2. Whether the [trial] court committed an error of law in
      finding that Appellants were not entitled to prejudgment interest
      when Appellants produced sufficient evidence to prove damages
      in the form [of] prejudgment interest and only recalculated that
      prejudgment interest in response to directives from the court
      during trial and where that evidence was unrebutted?

            3. Whether the [trial] court committed an error of law in
      finding that Appellees did not violate the Pennsylvania Uniform
      Fraudulent Transfer Act, a statue [sic] which permits the court to
      award attorney’s fees, when Appellants produced sufficient
      evidence to prove that Appellees fraudulently transferred assets?

(Appellants’ Brief, at 4) (unnecessary capitalization omitted).

            Our review in a non-jury case such as this is

         limited to a determination of whether the findings of the
         trial court are supported by competent evidence and
         whether the trial court committed error in the application
         of law. Findings of the trial judge in a non-jury case must
         be given the same weight and effect on appeal as a verdict
         of a jury and will not be disturbed on appeal absent error
         of law or abuse of discretion. When this Court reviews the
         findings of the trial judge, the evidence is viewed in the
         light most favorable to the victorious party below and all
         evidence and proper inferences favorable to that party
         must be taken as true and all unfavorable inferences
         rejected.

      Hart v. Arnold, 884 A.2d 316, 330–331 (Pa. Super. 2005),
      appeal denied, 587 Pa. 695, 897 A.2d 458 (2006) (citations
      omitted). “The [trial] court’s findings are especially binding on
      appeal, where they are based upon the credibility of the
      witnesses, unless it appears that the court abused its discretion
      or that the court’s findings lack evidentiary support or that the
      court capriciously disbelieved the evidence.” Id. (citations
      omitted). “Conclusions of law, however, are not binding on an
      appellate court, whose duty it is to determine whether there was
      a proper application of law to fact by the lower court.” Tagliati
      v. Nationwide Insurance Co., 720 A.2d 1051, 1053 (Pa.
      Super. 1998), appeal denied, 559 Pa. 706, 740 A.2d 234 (1999).


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      “With regard to such matters, our scope of review is plenary as it
      is with any review of questions of law.” Id.

             We also must decide whether the trial court properly
      denied Appellant’s post-trial motions. “Our standard of review
      [of an order] denying a motion for a new trial is to decide
      whether the trial court committed an error of law which
      controlled the outcome of the case or committed an abuse of
      discretion.” Angelo v. Diamontoni, 871 A.2d 1276, 1279 (Pa.
      Super. 2005), appeal denied, 585 Pa. 694, 889 A.2d 87 (2005)
      (citation omitted).

Christian v. Yanoviak, 945 A.2d 220, 224–25 (Pa. Super. 2008).

      Here, all three of Appellants’ claims challenge the sufficiency of the

evidence. “When reviewing the sufficiency of the evidence . . . this Court

must determine whether the evidence and all reasonable inferences

therefrom, viewed in the light most favorable to the verdict winner, was

sufficient to enable the factfinder to find against the losing party.” Zeffiro

v. Gillen, 788 A.2d 1009, 1013 (Pa. Super. 2001) (citation omitted).

      Appellants’ claim for damages is based on an oral agreement. (See

Appellants’ Brief, at 5, 10).

      It [is] incumbent upon [a] plaintiff to establish the oral contract
      upon which he based his claim by prima facie proof. The burden
      is upon one suing for damages for a breach of contract to
      establish a clear case of something agreed to. The existence of
      the contract must be established by evidence which is
      substantial; a mere scintilla is not enough. A verdict cannot rest
      upon guess or conjecture.

Rader v. Palletz, 51 A.2d 344, 346 (Pa. Super. 1947) (citations omitted).

      In this appeal, on independent review, viewed in the light most

favorable to the Appellees as verdict winners, we conclude that the evidence


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together with all reasonable inferences, was sufficient to enable the judge

sitting as factfinder to render its verdict.

         Appellants by their own admission lacked evidentiary support for their

additional claims (other than records purportedly possessed by Appellees)

for commissions beyond those actually awarded. (See Appellants’ Brief, at

10).     Claims without substantiation do not satisfy the burden of proof.     It

was the province of the trial court sitting as factfinder to weigh the evidence

presented and assess the credibility of the witnesses. See Christian, supra

at 224–25.      A verdict cannot rest on guess or conjecture.       See Rader,

supra at 346. Appellants’ sufficiency claims do not merit relief.

         Finally, although not properly preserved as an appellate issue, we

acknowledge that counsel for Appellants has asserted a claim of judicial

bias.3    However, mere bald accusations of judicial bias are insufficient to

merit relief.

               It is beyond dispute that a party to an action has the right
         to request the recusal of a jurist where that party has a reason
         to question the impartiality of the jurist in the cause before the
         court. However, a mere recitation of unfavorable rulings against
____________________________________________


3
    Counsel wrote:

                Mr. Solan did not receive a fair trial. In my 34 years   of
         practice I have never witnessed such a blatant miscarriage      of
         justice. I have never used such strong language in any brief    in
         any case on any prior occasion but in this case, I believe it    is
         necessary and appropriate to do so.

(Appellants’ Brief, at 42).



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     an attorney does not satisfy the burden of proving judicial bias,
     prejudice or unfairness. Moreover, a party seeking recusal or
     disqualification must raise the objection at the earliest possible
     moment, or that party will suffer the consequence of being time
     barred. Goodheart v. Casey, [523 Pa. 188, 199; 565 A.2d
     757, 763 (Pa. 1989)]. Accord Rizzo v. Haines, 520 Pa. 484,
     511, 555 A.2d 58, 71 (1989) (party who seeks recusal of a judge
     must present sufficient information in a timely fashion). Our
     [S]upreme [C]ourt has enunciated the rule concerning the
     substance of a recusal motion as follows:

                When circumstances arise during the course of a trial
        raising questions of a trial judge’s bias or impartiality, it is
        still the duty of the party, who asserts that a judge should
        be disqualified, to allege by petition the bias, prejudice or
        unfairness necessitating recusal. A failure to produce a
        sufficient plea will result in a denial of the recusal motion.

                                     *     *   *

              The proper practice on a plea of prejudice is to
        address an application by petition to the judge before
        whom the proceedings are being tried. He may determine
        the question in the first instance, and ordinarily his
        disposition of it will not be disturbed unless there is an
        abuse of discretion.

     Reilly by Reilly v. SEPTA, 507 Pa. 204, 220, 489 A.2d 1291,
     1299 (1985) (citations omitted). A party seeking recusal must
     assert specific grounds in support of the recusal motion before
     the trial judge has issued a ruling on the substantive matter
     before him or her. See id., 507 Pa. at 222, 489 A.2d at 1300
     (party is deemed to have waived his right to have a judge
     disqualified once trial is completed with the entry of a verdict).
     A party may not raise the issue of judicial prejudice or bias for
     the first time in post-trial proceedings. Id. at 222–23, 489 A.2d
     at 1300.

Ware v. U.S. Fid. & Guar. Co., 577 A.2d 902, 904–05 (Pa. Super. 1990)

(some citations and internal quotation marks omitted; some citation

formatting provided).


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      Here, counsel for Appellants not only did not file a contemporaneous

motion to recuse at trial, he declined to do so until after trial.        (See

Plaintiffs’ Motion for Post[-]trial Relief, 12/28/15, at unnumbered page 7

¶ 35). On appeal, he argued against the procedure both in his brief and at

oral argument, labeling it “tactical suicide.”   (Appellants’ Brief, at 12, 41).

Counsel concedes that the trial court offered him the opportunity to move

for recusal, and he declined for perceived strategic considerations. (See id.

at 41). The claim of judicial bias was not properly preserved. Accordingly, it

is waived. A claim of judicial prejudice or bias may not be raised for the first

time in post-trial proceedings.    See Ware, supra at 904-05; see also

Goodheart v. Casey, supra at 763 (“Where the asserted impediment is

known to the party, and that party fails to promptly direct the attention of

the jurist to that fact, the objection is waived and the party may not

subsequently offer the objection as a basis for invalidating the judgment.”).

      None of Appellants’ claims merit relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/24/2017




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