J-A26031-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TAREK ELTANBDAWY                          IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellant

                 v.

MMG INSURANCE COMPANY,
RESTORECARE, INC., KUAN FANG
CHENG

                      Appellees                 No. 2243 MDA 2013


         Appeal from the Judgment Entered December 23, 2013
          In the Court of Common Pleas of Cumberland County
                  Civil Division at No(s): 10-2015 Civil


TAREK ELTANBDAWY                          IN THE SUPERIOR COURT OF
                                                PENNSYLVANIA
                      Appellee

                 v.

MMG INSURANCE COMPANY,
RESTORECARE, INC., KUAN FANG
CHENG

                      Appellants                 No. 45 MDA 2014


         Appeal from the Judgment Entered December 23, 2013
          In the Court of Common Pleas of Cumberland County
                  Civil Division at No(s): 10-2015 Civil


BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY MUNDY, J.:                  FILED NOVEMBER 20, 2014
J-A26031-14


       Appellant, Tarek Eltanbdawy, appeals from the December 23, 2013

judgment1, entered in favor of Appellee, MMG Insurance Company (MMG).

MMG has filed a cross-appeal from the same judgment.2           After careful

review, we affirm the judgment entered in favor of MMG. As a consequence

of our affirmance, we dismiss MMG’s cross-appeal as moot.

       The trial court summarized the relevant factual and procedural history

of this case as follows.

                    [Appellant] opened the Hampden Diner on
              August 28, 2008. The business was insured under a
              business owner’s policy issued by [] MMG. When
              [Appellant] arrived to work on March 4, 2009 he
              discovered that a pipe had burst and the diner had
              flooded. He immediately reported the loss to his
              insurance agent who contacted [] MMG.

                    An adjuster was on site immediately and
              helped [Appellant] arrange to have the premises
              repaired as quickly as possible. Since he operated
              on a cash basis, he needed to be open in order to
              pay his bills.   Nevertheless, over his objection,


____________________________________________
1
  Although Appellant purports to appeal from the November 20, 2013 order
denying his post-trial motion, his appeal properly lies from the entry of
judgment. Hart v. Arnold, 884 A.2d 316, 325 n.2 (Pa. Super. 2005)
(citation omitted), appeal denied, 897 A.2d 458 (Pa. 2006). Therefore, we
have corrected the caption accordingly.
2
  Additionally, judgment was entered in favor of Appellant and against
Appellee Kuan Feng Cheng (Cheng), who was the owner of the property in
question, in the amount of $120,000.00. Judgment was also entered in
favor of Appellee RestoreCare and against Appellant. Appellant does not
appeal from any part of the judgment pertaining to his claim against
RestoreCare. In addition, Cheng and Appellant reportedly settled their
dispute. As a result, Cheng and RestoreCare are not parties to this appeal.



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J-A26031-14


          [Appellant] was forced to close the restaurant while
          the repairs were being made.

                [Appellant] paid $5[,]500 per month plus
          property taxes to rent the premises. He employed a
          chef, two cooks, bus boys, eight waitresses and
          himself. [Appellant] testified that in the six months
          he was open before the flood the business generated
          enough cash to pay all of his bills, including his
          payroll, rent, and over $11,000 in property taxes. In
          addition, the business was profitable enough to allow
          him to pay $8[,]000 against the $20,000 debt
          incurred for startup inventory. He also used the
          business income to purchase $10,000 worth [of]
          additional equipment.

                MMG paid for the repairs to the premises.
          However, the parties were unable to agree upon how
          much [Appellant] was entitled to receive for his loss
          of business income. The policy obligated MMG to
          pay the “actual loss of [b]usiness [i]ncome”
          sustained during the time the business was not
          operable. The policy goes on to provide:

               (c) Business Income means the:

                      (i) Net Income (Net Profit or Loss before
                      income taxes) that would have been
                      earned or incurred if no physical loss or
                      damage had occurred, … ; and

                      (ii)  Continuing     normal    operating
                      expenses incurred, including payroll.

                [Appellant] submitted a profit and loss
          statement to MMG which showed gross sales of
          $270,000 for the period of September 30, 2008
          through the end of February 2009. MMG’s forensic
          accountant computed that the gross sales over that
          time period were only $123,867. The insurance
          policy provides that “(t)his policy is void … if you …
          at any time intentionally conceal or misrepresent a
          material fact concerning … (a) claim under this
          policy.”

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J-A26031-14



Trial Court Opinion, 5/2/14, at 1-3 (internal footnote citations omitted).

      On March 22, 2010, Appellant filed a complaint against MMG, Cheng,

and RestoreCare, Inc. (RestoreCare), the company hired by MMG to make

repairs to the property, alleging claims of breach of contract and negligence

against MMG, a claim of negligence against RestoreCare, and claims of

breach of contract and intentional infliction of emotional distress against

Cheng. On April 23, 2010, Appellant filed an amended complaint, alleging

breach of contract claims against MMG and Cheng, a negligence claim

against RestoreCare, and a claim of intentional infliction of emotional

distress against Cheng.

      On February 25, 2013, this case proceeded to a jury trial. On March

1, 2013, at the conclusion of said trial, the jury found that both Appellant

and MMG breached the contract, and the jury declined to award damages to

Appellant on his claims against MMG.        The jury also found in favor of

RestoreCare. However, as to Appellant’s claims against Cheng, the jury

awarded Appellant a total of $120,000.00 in compensatory and punitive

damages. On March 11, 2013, Appellant filed a timely post-trial motion. On

March 15, 2013, MMG filed a timely cross-motion for post-trial relief.       On

November 20, 2013, the trial court entered an order denying Appellant’s

post-trial motion and dismissing MMG’s cross-motion as moot.                 On

December 30, 2013, judgment was entered in favor                of MMG       and

RestoreCare and against Appellant. However, judgment was also entered in

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J-A26031-14


favor of Appellant and against Cheng.            On December 18, 2013, Appellant

filed a timely notice of appeal. On December 30, 2013, MMG filed a timely

notice of cross-appeal.3

        On appeal, Appellant raises the following two issues for our review.

              1.    Did the [trial c]ourt err in submitting an
              interrogatory to the jury on the issue of whether
              Appellant made misrepresentations or committed
              fraud when there was no evidence that MMG relied
              upon any such alleged misrepresentations or fraud?

              2.     Did the [trial c]ourt err in failing to grant a new
              trial when the evidence showed that [Appellant] had
              paid his insurance premiums and was, therefore,
              entitled to at least $5,000.00 for the month that his
              business was closed for repairs?

Appellant’s Brief at 4. On its cross-appeal, MMG raises the following issues

for this Court’s review.

              A.    Whether [] Appellant presented sufficient
              evidence from which a jury could conclude that he
              sustained a loss of business income under the
              applicable insurance policy?

              B.    Whether the business income loss provision in
              MMG’s policy must be interpreted to offset ongoing
              expenses with net business losses so as to give
              effect to all of the language in the policy and avoid
              compensation that is greater than the actual loss
              sustained?

MMG’s Brief at 1.




____________________________________________
3
    Appellant, MMG, and the trial court have complied with Pa.R.A.P. 1925.



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J-A26031-14


      Both of Appellant’s issues on appeal ask for a new trial. We begin by

noting our well-settled standard of review.

                    Our review of the trial court’s denial of a new
            trial is limited to determining whether the trial court
            acted capriciously, abused its discretion, or
            committed an error of law that controlled the
            outcome of the case. In making this determination,
            we must consider whether, viewing the evidence in
            the light most favorable to the verdict winner, a new
            trial     would    produce     a    different   verdict.
            Consequently, if there is any support in the record
            for the trial court’s decision to deny a new trial, that
            decision must be affirmed.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)

(citations omitted).

      In his first issue, Appellant avers that the trial court erred in

submitting an interrogatory to the jury that instructed that if Appellant

materially breached his contract with MMG, he cannot recover damages.

Appellant’s Brief at 9. In Appellant’s view, “the trial [court] failed to instruct

the jury that if there was a misrepresentation or fraud, MMG had to rely on it

in order for it to be actionable.” Id. at 9-10.

            In examining jury instructions, our scope of review is
            limited to determining whether the trial court
            committed a clear abuse of discretion or error of law
            controlling the outcome of the case. Error in a
            charge is sufficient ground for a new trial if the
            charge as a whole is inadequate or not clear or has a
            tendency to mislead or confuse rather than clarify a
            material issue. Error will be found where the jury
            was probably [misled] by what the trial judge
            charged or where there was an omission in the
            charge. A charge will be found adequate unless the


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J-A26031-14


            issues are not made clear to the jury or the jury was
            palpably misled by what the trial judge said or unless
            there is an omission in the charge which amounts to
            a fundamental error. In reviewing a trial court’s
            charge to the jury[,] we must look to the charge in
            its entirety. Because this is a question of law, this
            Court's review is plenary.

Passarello v. Grumbine, 87 A.3d 285, 296-297 (Pa. 2014) (citation

omitted).

      Appellant avers that the trial court erred in its interrogatory to the jury

concerning whether Appellant materially breached the contract because MMG

was   required    to   show       that    it   relied   on   Appellant’s   alleged

misrepresentations. Appellant’s Brief at 9-10. In support of this contention,

Appellant cites to our Supreme Court’s decisions in Porreco v. Porreco,

811 A.2d 566 (Pa. 2002) (plurality) and Bortz v. Noon, 729 A.2d 555 (Pa.

1999). Appellant’s Brief at 10.

      In Porreco, our Supreme Court considered a divorce case involving a

pre-nuptial agreement.    Porreco, supra at 569-570.          The Porreco Court

framed the issue as whether the husband “fraudulently induced [the wife] to

sign the prenuptial agreement by misrepresenting the value of the

engagement ring on the list of her individual assets, which he prepared as

part of the prenuptial agreement.” Id. at 570. Our Supreme Court listed

the six prong test for fraudulent misrepresentation as follows.

            In order to void a contract due to a fraudulent
            misrepresentation, the party alleging fraud must
            prove, by clear and convincing evidence: (1) a

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J-A26031-14


             representation; (2) which is material to the
             transaction at hand; (3) made falsely, with
             knowledge of its falsity or recklessness as to whether
             it is true or false; (4) with the intent of misleading
             another into relying on it; (5) justifiable reliance on
             the misrepresentation; and (6) resulting injury
             proximately caused by the reliance.

Id. The Porreco Court cited to Bortz for this test. The Court went further

to observe that “[t]o be justifiable, reliance upon the representation of

another must be reasonable.” Id. at 571. Ultimately, our Supreme Court

rejected the wife’s argument that her “alleged reliance on [her husband’s]

misrepresentation of the value of the ring on the schedule of her assets was

justifiable.” Id. at 571-572. This precluded the wife from having the pre-

nuptial agreement declared void. Id. at 572.

        In Bortz, our Supreme Court discussed intentional misrepresentations

as actionable in tort.   Id. at 560.     Specifically, the Bortz Court granted

allocatur to decide whether a real estate agent “had a duty to ascertain

whether the septic system had actually passed the dye test and if her failure

to do so amounted to a misrepresentation to the [b]uyer.” Id. at 559. Our

Supreme Court noted that the six-element test it recited initially originated

from the Restatement (Second) of Torts. Id. at 560. Ultimately, the Bortz

Court     concluded   that   “[w]hile    the   Agent   made    an      affirmative

misrepresentation that the dye test was clear, there is no finding that the

Agent made any misrepresentation with knowledge that it was false.” Id. at




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J-A26031-14


561. As a result, the buyer could not recover against the real estate agent

for intentional misrepresentation. Id.

      In this case, the specific insurance policy provision at issue states that

the policy is void if the insured “at any time, intentionally conceal[s] or

misrepresent[s] a material fact concerning … a claim under [the] policy.”

Appellant’s Amended Complaint, 4/23/10, Exhibit B, at 41. As the trial court

pointed out, “[w]hether or not [Appellant] intentionally misrepresented a

material fact in connection with his claim was a question of fact for the jury

to determine … [because i]f he did so, the express language of the policy

voided coverage.”    Trial Court Opinion, 5/2/14, at 3.   The policy does not

purport to incorporate the elements of common law fraud in any way.

Neither Appellant nor MMG raised a claim for the tort of intentional

misrepresentation, nor was either seeking to rescind the entire contract on

this basis.   Rather, MMG believed it did not have to pay certain benefits

under the policy based on its belief that Appellant made material

misrepresentations concerning the value of part of his claim.       This was a

question for the jury to decide.    As a result, neither Porreco nor Bortz

control the instant case.   Based on these considerations, we conclude the

trial court did not abuse its discretion in submitting this interrogatory to the

jury for its consideration. See Passarello, supra.

      In his second issue, Appellant avers that even if he did make any

misrepresentations, he would still be entitled to a new trial because “the


                                     -9-
J-A26031-14


evidence showed that Appellant had paid his insurance premiums and was,

therefore, entitled to at least $5,000.00 for the month that his business was

closed for repairs.” Appellant’s Brief at 13. However, before we may review

the merits of Appellant’s claim, we must first ascertain whether Appellant

has waived this issue.

      Pennsylvania Rule of Appellate Procedure 2119 states that an

appellant’s “argument shall be divided into as many parts as there are

questions to be argued; and shall have at the head of each part--in

distinctive type or in type distinctively displayed--the particular point treated

therein, followed by such discussion and citation of authorities as are

deemed pertinent.” Pa.R.A.P. 2119(a).

                  The argument portion of an appellate brief
            must include a pertinent discussion of the particular
            point raised along with discussion and citation of
            pertinent authorities. This Court will not consider
            the merits of an argument which fails to cite relevant
            case or statutory authority. Failure to cite relevant
            legal authority constitutes waiver of the claim on
            appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (internal

quotation marks and citations omitted).

      In this case, Appellant’s brief consists of his argument heading, which

we have quoted above, followed by one sentence stating Appellant is entitled

to a new trial.   Appellant’s Brief at 13.    Appellant then block quotes an

unattributed “Section 19.110,” which is a jury instruction on material breach



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J-A26031-14


of contract. Id.       Appellant includes with the quote a block quote to a

subcommittee note, containing citations to two federal district court cases

from the Western District of Pennsylvania.4 Id.

       In our view, Appellant’s second argument on appeal is woefully lacking

in development as it contains one original sentence and relies entirely on

one unattributed block quote. Appellant’s brief does not make any attempt

to explain the applicability of the quoted charge to this case or provide any

explanation as to why this entitles him to a new trial. As a result, we deem

Appellant’s second issue on appeal waived for lack of development. See In

re Estate of Whitley, supra.

       Based on the foregoing, we conclude both of Appellant’s issues on

appeal are either waived or devoid of merit.       Accordingly, the trial court’s

December 23, 2013 judgment in favor of MMG and against Appellant is

affirmed. As we have resolved all of Appellant’s issues in MMG’s favor, we

need not address any issues in its cross-appeal.       Therefore, MMG’s cross-

appeal is dismissed as moot.




____________________________________________
4
  Appellant does not provide a source citation for this instruction or the
subcommittee note that follows it.



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J-A26031-14


     Judgment affirmed. Cross-appeal dismissed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/20/2014




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