J-A12027-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAPPIALI AND BLUMENTHAL, P.C. AND                 IN THE SUPERIOR COURT OF
ANTHONY CAPPIALI                                        PENNSYLVANIA



                       v.

HARE NICHOLS & COMPANY, LLC,
JOSEPH HARE AND JOSEPH NICHOLS


-----------------------------------------------
 HARE NICHOLS & COMPANY, LLC



                        v.

    ANTHONY P. CAPPIALI, CPA AND CECILE
    R. BLUMENTHAL, CPA AND CAPPIALI &
    BLUMENTHAL, P.C.

    APPEAL OF: HARE NICHOLS &
    COMPANY, LLC, JOSEPH HARE AND                     No. 2205 EDA 2015
    JOSEPH NICHOLS

               Appeal from the Judgment Entered June 16, 2015
               In the Court of Common Pleas of Delaware County
                     Civil Division at No(s): No. 2013-1033
                                              No. 2013-902


BEFORE: BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                          FILED OCTOBER 13, 2016




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A12027-16


      Appellants, Hare Nichols & Company, LLC (“HNC”), Joseph Hare, and

Joseph Nichols, appeal from the judgment entered against them after a

bench trial over claims arising from an aborted merger of two accounting

firms. Appellants contend that the trial court erred in applying the terms of

the contract to the facts established at trial. After careful review, we affirm.

      Joseph Hare and Joseph Nichols are Certified Public Accountants

(“CPAs”) and principals in HNC. Sometime in 2006, they engaged the

services of Global Force, a brokerage firm, to identify other CPA firms that

they could affiliate with in order to grow their practice. Under the terms of

the brokerage agreement, HNC paid an initial fee of $2,000 to Global Force.

If Global Force successfully brokered an agreement between HNC and

another firm, HNC would pay Global Force a fee of 10% of the average

annual revenues of the other firm.

      In November 2009, Global Force brokered an agreement between HNC

and Appellee, Cappiali and Blumenthal, P.C. (“CB”). Appellees, Anthony

Cappiali and Cecile Blumenthal, are CPAs and were principals in CB at the

time. The agreement brokered by Global Force, entitled “CAPPBLUM/N&H

AFFILIATION AGREEMENT” (“the Agreement”), provided for an arrangement

whereby Cappiali and Blumenthal would work out of offices supplied by HNC

while servicing their clients. In exchange for 60% of the income generated

by Cappiali’s and Blumenthal’s work, HNC would cover the overhead and




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staffing expenses. The remaining 40% of income would paid to CB, which

would then pay Cappiali and Blumenthal according to its structure.

      The   Agreement    also   explicitly   provided   for   the   retirement   of

Blumenthal in twelve to eighteen months, as well the expected retirement of

Cappiali in ten years. Under the Agreement, both Cappiali and Blumenthal

were entitled to certain payments in exchange for a continuing prohibition on

competing with HNC.

      Of most importance to this appeal, the Agreement contained a clause

regarding an unwinding of the affiliation, entitled “Demerger Option.” Under

this clause, Cappiali and Blumenthal retained the right to unwind the

affiliation of CB with HNC during the first two years of the affiliation, through

the provision of 90 days written notice to HNC. If either Cappiali or

Blumenthal chose to end the affiliation, that person would be liable to HNC

for half of the fee paid to Global Force, $13,500.

      On June 6, 2011, Cappiali handed the following letter to Hare entitled

“Re: Demerger.”

      In light of the breaches of the Affiliation Agreement of November
      16, 2009 by Hare Nichols & Company, Hare, and Nichols …
      including failure to pay significant monies due to Cappiali &
      Blumenthal, PC and the hostile work environment created by
      [HNC], among other issues, Cappiali & Blumenthal PC, Anthony
      Cappiali and Cele Blumenthal are Demerging from [HNC].

      We intend to work with Hare Nichols toward a fair accounting of
      monies due to us.




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After this letter, the parties continued to negotiate their dispute, and HNC

granted several requests for the delay of the date when the affiliation would

be terminated.

      It is undisputed that as of December 1, 2011, the affiliation had been

terminated. However, HNC allowed CB to sublet space within their office

while seeking a new location for CB. In February 2012, CB moved out of

HNC’s offices and into a new office space nearby.

      Approximately one year later, CB filed a complaint against HNC

asserting claims in breach of contract, unjust enrichment, and quantum

meruit. Prior to being served with this complaint, HNC filed its own complaint

against CB asserting claims for breach of contract, an accounting of the

affiliation, and interference with business relations. Once served with CB’s

complaint, HNC filed an answer with new matter and counterclaim,

incorporating the claims in its complaint by reference.

      The cases were consolidated for a non-jury trial. At trial, Cappiali and

Blumenthal both testified to HNC’s failure to adequately staff during the

affiliated period and to pay medical benefits. In contrast, Hare and Nichols

testified to Cappiali’s and Blumenthal’s failure to work the number of hours

required under the Agreement. At the conclusion of the trial, the trial court

entered defense verdicts in both actions, essentially leaving the parties as

they stood.




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      The trial court subsequently denied Appellants’ post-trial motions and

entered judgment on the verdicts. This timely appeal followed.

      On appeal, Appellants argue that the trial court erred in failing to grant

them a judgment notwithstanding the verdict (“JNOV”) or a new trial. We

review this issue according to the following standard of review.

      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 of the evidence admitted to decide if there was
      sufficient competent evidence to sustain the verdict. In 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 testimony 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.
      If 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.

Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d

996, 999 (Pa. Super. 2008) (citing Buckley v. Exodus Transit & Storage

Corp., 744 A.2d 298, 304-05 (Pa. Super. 1999)). “[A]bsent an abuse of

discretion, the reviewing court is bound by the trial court’s credibility

determinations.” De Lage Landen Financial Services, Inc. v. M.B.

Management Co., Inc., 888 A.2d 895, 898 (Pa. Super. 2005) (citation

omitted).




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J-A12027-16


      “Our standard of review from an order denying a motion for a new trial

is whether the trial court committed an error of law, which controlled the

outcome of the case, or committed an abuse of discretion.”            Polett v.

Public Communications, Inc., 83 A.3d 205, 214 (Pa. Super. 2013)

(citation omitted), reversed on other grounds, 126 A.3d 895 (Pa. 2015). “A

trial court commits an abuse of discretion when it rendered a judgment that

is manifestly unreasonable, arbitrary, or capricious, has failed to apply the

law, or was motivated by partiality, prejudice, bias, or ill will.” Id. (citation

omitted).

      Unless an error of law controls the outcome of a case, we will not

reverse an order denying a new trial. See Lockley v. CSX Transportation,

5 A.3d 383, 388 (Pa. Super. 2010). “[A] litigant is entitled only to a fair trial

and not a perfect trial.” Id. (citation omitted).

      Appellants first argue that the trial court erred in finding that Cappiali

and Blumenthal had not invoked the demerger option clause with the June

6, 2011 letter. The trial court found that while the letter indicated a desire to

end the affiliation, it also stated that Cappiali and Blumenthal felt that the

Agreement had been breached. Furthermore, the trial court found that

Cappiali and Blumenthal had established that HNC had materially breached

the Agreement, and therefore they had no duty to pay the demerger option

fee, or perform any other duty under the contract.




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      Generally, a party who has materially breached a contract may not

“complain if the other party refuses to perform his obligations under the

contract.” Ott v. Buehler Lumber Co., 541 A.2d 1143, 1145 (Pa. Super.

1988) (citation omitted). “[A] material breach of a contract, which is vital to

the existence of the contract, relieves the non-breaching party from any

continuing duty of performance under the contract.” Umbelina v. Adams,

34 A.3d 151, 159 (Pa. Super. 2011) (citation omitted) (emphasis in

original).

      Cappiali testified that HNC did not maintain staffing levels during the

time that the firms were affiliated. See N.T., Trial, 9/5/14, at 10-16. The

staff provided was insufficient to allow Cappiali to do his work in a timely,

professional manner. See id., at 16-17. Furthermore, the lack of staffing

frustrated Blumenthal’s desire to retire within 18 months of the affiliation, as

explicitly provided for in the Agreement. See id., at 90.

      Based upon this testimony, the trial court found that Cappiali and

Blumenthal    had   established   that   HNC   had   materially   breached   the

Agreement prior to June 6, 2011. We cannot conclude that the trial court

abused its discretion in making these findings. Thus, we cannot conclude

that the trial court erred in refusing to grant JNOV or a new trial.

      Alternatively, HNC argues that the trial court’s verdicts cannot be

logically reconciled, as the trial court found that HNC’s breach of the

Agreement excused Appellees’ duties under the contract, but did not award


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J-A12027-16


Appellees any damages on their claim for breach against HNC. Verdicts

enjoy a presumption of consistency. See McDermott v. Biddle, 674 A.2d

665, 667 (Pa. 1996). This presumption can only be overcome by showing

that there is no reasonable theory that can support the verdicts. See id.

     Here, the trial court’s verdicts can be reconciled. It is plausible that

while the trial court concluded that Appellees had established a material

breach on the part of HNC, it found that Appellees had failed to establish

that they had suffered any damages pursuant to the breach. Therefore, this

argument merits no relief.

     Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/13/2016




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