J-S04012-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

EUGENE WATSON,                                   IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                          Appellant

                     v.

CORIZON HEALTH SERVICES, INC.,
F/K/A PRISON HEALTH SERVICE,

                          Appellee                    No. 339 WDA 2015


               Appeal from the Order Entered January 27, 2015
              In the Court of Common Pleas of Somerset County
                    Civil Division at No(s): 399 CIVIL 2008


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                             FILED MARCH 04, 2016

       Eugene Watson appeals from the trial court’s January 27, 2015 order

granting summary judgment in favor of Corizon Health Services, Inc.,

formerly known as Prison Health Services, Inc. (“PHS”), a wholly owned

subsidiary of America Services Group, Inc. (“ASG”), and dismissing this

action, which was based upon successor liability.     After careful review, we

affirm.

       On March 29, 2000, Correctional Physician Services, Inc. (“CPS”)

executed an asset purchase agreement by which it sold a portion of its

assets to PHS.     PHS had contracts with the Pennsylvania Department of

Corrections to provide healthcare for its correctional facilities in the western

district, as well as contracts with the New York State Department of
*
    Retired Senior Judge assigned to the Superior Court.
J-S04012-16



Corrections for several facilities located in that state. CPS was a closely-held

corporation engaged in providing healthcare services to Pennsylvania

correctional facilities in the eastern district, as well as facilities in New York,

Virginia, and Florida.    By virtue of the asset purchase agreement, PHS

acquired only CPS’s Pennsylvania and New York contracts.

      Prior to the execution of the asset purchase agreement, ASG and its

attorneys performed a due diligence review of CPS, which culminated in a

memorandum that was submitted to ASG officers and counsel.                    ASG

engaged Ernst & Young LLP to audit CPS and report to its board of directors.

It also hired Morgan Keegan to perform a fairness opinion analysis of the

asset purchase, and to determine the equity value of CPS’s assets.            That

firm concluded that the equity value of the assets to be purchased ranged

from $13 million to $19 million. A schedule appended to that memorandum

set forth CPS’s disclosures regarding pending and threatened litigation and

noted therein that CPS maintained professional liability insurance. Based on

the aforementioned due diligence review, PHS negotiated a purchase price of

$14 million for the CPS assets.      ASG’s legal counsel, King and Spalding,

supplied a written opinion letter regarding the transaction.

      Following the closing, some of the funds were distributed to meet

CPS’s obligations to major creditors and vendors.            Approximately $1.5

million dollars was placed in an escrow account for an anticipated payment

to the New York Department of Corrections. Almost $8 million was placed

                                       -2-
J-S04012-16



into an oversight account at PNC Bank. An Oversight Agreement between

PHS and CPS created a committee that would take control of these funds

and pay each of the two shareholders $500,000, pay outstanding obligations

and creditors, and distribute any amounts remaining as directed by the

shareholders of CPS.         While PHS assumed certain enumerated liabilities

under the Agreement, it specifically did not assume insurance-related

liabilities for medical malpractice claims arising from CPS’s administration of

healthcare services prior to the closing date or any EEOC claims.

Agreement, ¶3.3.

       Almost six months after the execution of the Agreement, on

September 18, 2000, Mr. Watson filed a medical malpractice action against

CPS in the Court of Common Pleas of Montgomery County. He alleged that

CPS had provided him with negligent medical care while he was an inmate at

SCI-Graterford from 1989 to 1999.              CPS did not file an answer and in

February 2001, Appellant obtained a default judgment in the amount of

$210,000 against CPS.1 After Appellant garnished a CPS bank account in an

attempt to satisfy his judgment, CPS filed a petition to strike and/or open

____________________________________________


1
  In his praecipe for judgment, Mr. Watson inserted the sum of $210,000 as
damages, and certified therein that the “assessment of damages is for
specified amounts alleged to be due in the complaint and is calculable as a
sum certain from the complaint,” a representation that cannot be confirmed
by the record. See Defendant Corizon’s Second Motion for Summary
Judgment, 1/3/12, at Exhibit E.



                                           -3-
J-S04012-16



the default judgment.          In it, CPS represented that it had terminated

operations and that PHS had purchased some of its contracts in 2000. The

petition was not ruled upon.2

       Seven years later, on April 24, 2008, Appellant commenced the within

action against the Pennsylvania Department of Corrections and PHS alleging

that both parties were liable for CPS’s judgment based on the Pennsylvania

Uniform Fraudulent Transfer Act (“PUFTA”), 12 Pa.C.S. §§ 5105-5110.       In

addition, he asserted liability against PHS based upon a theory of successor

liability.   The Department of Corrections filed preliminary objections that

were sustained. PHS filed a motion for judgment on the pleadings premised

on the statute of limitations under PUFTA and the contract provision that

PHS was not assuming liability for medical negligence claims, which the trial

court granted.

       Mr. Watson appealed to this Court.        On November 13, 2009, we

affirmed the dismissal of the PUFTA claim as time barred, agreeing that Mr.

Watson should have known about the sale of assets to PHS in 2001 when

CPS moved to strike and/or open the judgment. Watson v. Prison Health

Servs., 988 A.2d 739 (Pa.Super. 2009) (unpublished memorandum)

(“Watson I”).         However, we reversed the grant of judgment on the
____________________________________________


2
  According to PHS, the court did not rule on the petition because CPS
withdrew it. See Answer of Defendant Prison Health Services, Inc. to
Plaintiff Eugene Watson’s Amended Complaint, 7/28/08, at ¶14.



                                           -4-
J-S04012-16



pleadings as to the successor liability claim, finding the pleadings insufficient

to determine as a matter of law whether adequate consideration had been

paid for the transfer.

      Following remand, and before the trial court addressed the issue of

consideration, PHS filed a motion for summary judgment. PHS argued that

the successor liability action was barred by the statute of limitations. The

trial court agreed and granted summary judgment.          Mr. Watson appealed

and this Court reversed, holding that Mr. Watson’s “successor liability action

against PHS to recover CPS’s debt reduced to judgment is an equitable

action” and that the trial court erred in applying the statute of limitations

rather than the doctrine of laches.     Watson v. Prison Health, 26 A.3d

1207 (Pa.Super. 2011) (unpublished memorandum at 15) (“Watson II”).

We concluded further that Mr. Watson had not been duly diligent as he filed

suit seven years after he was placed on reasonable notice that PHS

purchased at least some of the assets.      However, since laches would only

bar the claim if PHS was prejudiced by the delay, we remanded for “the trial

court to determine preliminarily, whether laches barred [Mr. Watson’s]

claim” and if not, to decide whether PHS paid adequate consideration for

CPS’s assets. Id. at 18.

      On January 3, 2012, PHS filed the second motion for summary

judgment that is the subject of this appeal. It contended that the successor

liability claim was barred by laches, or, in the alternative, could not be

                                      -5-
J-S04012-16



maintained because adequate consideration was paid for the asset purchase.

After oral argument was heard on the motion, the trial court granted a

motion by PHS to disregard what Mr. Watson submitted as an expert report:

an unsigned report by an unidentified author with unknown credentials that

was contained in his brief. On January 27, 2015, summary judgment was

granted in favor of PHS.     This appeal followed.   Mr. Watson filed his Rule

1925(b) concise statement of errors complained of on appeal and the trial

court issued its opinion.

      Mr. Watson, appearing pro se, presents three issues for our review:

      I.     Weather [sic] the trial court erred when it fail [sic] to
             prepare an opinion explaining is order, even though it
             waited over 2 ½ years to rule.

      II.    Weathr [sic] the trail [sic] court erred in granting summary
             judgment to defendents [sic] when:

                   a. they fail to present sufficient evidence to
                      prove prejudice, and when

                   b. Appellant submitted undisputed evidence
                      that the consideration paid by defendents
                      [sic] was inadequate.

      III.   Weather [sic] the trial court erred when it fail [sic] to rule
             on motion that were still open before this court.

Appellant’s brief at 3.

      Mr. Watson’s first assignment of error is that the trial court erred in

failing to rule on the second motion for summary judgment for two and one-

half years, and neglecting to issue an opinion at that time explaining the



                                      -6-
J-S04012-16



reasons why it granted summary judgment.            PHS does not address the

issue.

         Mr. Watson fails to develop his argument or cite to any authorities in

support of his contention that a trial court’s delay in ruling on the motion for

summary judgment and failure to explain its reasoning is reversible error.

Thus, the issue is waived. See Pa.R.A.P. 2119(a); see also Betz v. Erie

Ins. Exch., 957 A.2d 1244, 1261 (Pa.Super. 2008) (deeming argument

waived where litigant fails to cite pertinent authorities in support). However,

even if we were not to find waiver, this claim lacks merit. The rules of civil

procedure address one instance where a trial court is required to state its

reasons for granting summary judgment on the record or in an opinion.

Pa.R.C.P. 1035.3(e)(2) provides that, “A court granting a motion under

subdivision (e)(1) shall state the reasons for its decision in a written opinion

or on the record.” Pa.R.C.P. 1035.3(e)(1) is limited to the situation where a

court “rule[s] upon a motion for summary judgment without written

responses or briefs” after the parties have been afforded a full and fair

opportunity to supplement the record and oppose the motion.

         Herein, the parties filed written responses, briefs, and the court heard

argument on the motion. Thus, this was not a ruling pursuant to Pa.R.C.P.

1035.3(e)(1), and Pa.R.C.P. 1035.3(e)(2)’s requirement that the trial court

state its reasons is inapplicable.     Furthermore, the trial court thoroughly

explained its reasoning in its Rule 1925(a) opinion. No relief is due.

                                       -7-
J-S04012-16



      Next, Mr. Watson contends that summary judgment was improper on

his successor liability claim for two reasons. First, he maintains that there

was insufficient evidence of prejudice to PHS to support a finding that laches

barred the action. Second, Mr. Watson alleges that he submitted undisputed

evidence that PHS paid inadequate consideration for the purchase of CPS’s

assets, which precluded entry of summary judgment.

      In reviewing the propriety of the grant of summary judgment, we are

governed by the following principles.

      [S]ummary judgment is appropriate only in those cases where
      the record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment
      as a matter of law. When considering a motion for summary
      judgment, the trial court must take all facts of record and
      reasonable inferences therefrom in a light most favorable to the
      non-moving party. In so doing, the trial court must resolve all
      doubts as to the existence of a genuine issue of material fact
      against the moving party, and, thus, may only grant summary
      judgment where the right to such judgment is clear and free
      from all doubt. On appellate review, then, an appellate court
      may reverse a grant of summary judgment if there has been an
      error of law or an abuse of discretion. But the issue as to
      whether there are no genuine issues as to any material fact
      presents a question of law, and therefore, on that question our
      standard of review is de novo. This means we need not defer to
      the determinations made by the lower tribunals. To the extent
      that this Court must resolve a question of law, we shall review
      the grant of summary judgment in the context of the entire
      record.

Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010) (internal

quotations and citations omitted).      A non-moving party who opposes

summary judgment cannot rest on the pleadings but must produce evidence



                                    -8-
J-S04012-16



demonstrating a genuine issue of material fact for trial.         DeWeese v.

Anchor Hocking Consumer and Indus. Products Group, 628 A.2d 421

(Pa.Super. 1993).     Such evidence may include depositions, answers to

interrogatories, admissions on file, expert reports and affidavits.

      Laches is an equitable doctrine that bars relief when a complaining

party fails to exercise due diligence to promptly institute an action and the

other party is prejudiced thereby.    In re Estate of Warden, 2 A.3d 565

(Pa.Super. 2010). As this Court noted in Fulton v. Fulton, 106 A.3d 127,

131 (Pa.Super. 2014):

           The doctrine of laches is an equitable bar to the
      prosecution of stale claims and is “the practical application of the
      maxim that 'those who sleep on their rights must awaken to the
      consequence that they have disappeared.'" Kern v. Kern, 2005
      PA Super 422, 892 A.2d 1, 9 (Pa. Super. 2005) (quoting
      Jackson v. Thomson, 203 Pa. 622, 53 A. 506, 506 (Pa. 1902)).

      Laches involves a factual inquiry of the circumstances of a case. In re

Estate of Scharlach, 809 A.2d 376 (Pa.Super. 2002).            However, “[t]he

question of whether laches applies is a question of law; thus, we are not

bound by the trial court's decision on the issue." Fulton, supra at 131. In

order to prevail on an assertion of laches, the burden is on the defendant to

establish a delay arising from the plaintiff’s failure to exercise due diligence,

and that it was prejudiced due to the delay.         Commonwealth ex rel.

Corbett v. Griffin, 946 A.2d 668 (Pa. 2008). Prejudice exists where there

is a changed condition of the parties during the period of, and in reliance



                                      -9-
J-S04012-16



upon the delay, such as where records are lost or unavailable or witnesses

die or cannot be located. See Fulton, supra (prejudice may be established

by evidence that a witness has died or become unavailable, or that records

were lost or destroyed, or that a defendant has changed his position due to

a belief that the opposing party has waived his claims).

      In Mr. Watson’s first appeal, this Court confirmed that Mr. Watson was

on notice of the sale of CPS assets to PHS in 2001 but waited seven years to

commence the within action. See Watson I, supra. In his second appeal,

we concluded that the seven-year delay constituted the lack of diligence

required for a laches defense. However, recognizing that we have permitted

suits in equity to proceed despite considerable delay where there has been

no prejudice to the other party, and finding the record insufficiently

developed to determine prejudice to PHS, we remanded to permit the trial

court to make that determination. Watson II, supra.

      PHS filed a second motion for summary judgment in which it argued

that laches barred this action.   In support of its position, PHS offered the

affidavit of Scott King, Chief Legal Officer of PHS since 2005 and Secretary

of the Board of Directors of its parent company, ASG.      Defendant Corizon

Health, Inc. f/k/a Prison Health Services, Inc.’s Second Motion for Summary

Judgment, Exhibit B.   Mr. King stated therein that employees of ASG who

were particularly involved in negotiating the deal and supervising due

diligence review were no longer employed by ASG. He later supplemented

                                    - 10 -
J-S04012-16



that affidavit and averred that the witnesses are located outside of

Pennsylvania.     Mr. King averred that he personally confirmed that Michael

Catalano, the former CEO of ASG, was unwilling to testify. Although he did

not personally speak to Bruce Teal, the CFO of ASG and Executive Vice

President and CFO of PHS at the time the Agreement was executed, Mr. King

represented that he had personal knowledge that he would not testify on

behalf of PHS.3

       B. Warren Pope, Esquire, a partner of King and Spaulding in Atlanta,

supplied an affidavit attesting to the fact that none of the firm’s attorneys

who represented PHS in the transaction were still with the firm.        Id. at

Exhibit H. At oral argument on the motion, counsel for PHS represented that

the unavailability of these key witnesses hindered its ability to defend itself

as documents could not tell the whole story.

       Mr. Watson counters first that PHS was not prejudiced due to his lack

of diligence as it did not detrimentally change its position due to the delay.

See In re Estate of Aiello, 993 A.2d 283, 287 (Pa.Super. 2010) (defining

prejudice in this context as a change in position to its detriment due to the

____________________________________________


3
  Counsel for PHS represented at oral argument on June 1, 2012, that Regis
Dorch, the Executive Vice-President of Operations for ASG died in 2007, but
admitted that this fact was not of record.            Counsel offered to file a
supplementary affidavit confirming that fact, N.T., 6/1/12, at 15, and the
trial court directed counsel to submit an affidavit. Id. at 49. In our review
of the certified record, we did not find an affidavit to that effect.



                                          - 11 -
J-S04012-16



delay). He maintains that the fact that witnesses are no longer employed

and live out of state is insufficient to substantiate a claim of unavailability.

Furthermore, Mr. Watson contends that there is extensive documentation

available in Prison Health Servs. v. Umar, 2002 U.S.Dist.LEXIS 1228

(E.D. Pa. 2002), a proceeding filed by PHS against Emre Umar for breach of

his agreement not to compete, that is sufficient to fill any gaps in that

regard.

       The trial court did not definitively rule on the laches defense. Rather,

it merely noted that the equities did not warrant drawing in ASG’s key

former employees, some retired or disgruntled, who were reluctant to

become involved in what it concluded was non-viable successor liability

litigation.

       It appears that although the corporate officers who were involved in

the sale are no longer employed, their whereabouts are known to PHS and

ASG.      PHS concedes that these witnesses are subject to subpoena and

deposition by letters rogatory.    While the latter process is more arduous

than merely directing one’s corporate officers to provide testimony at trial or

by deposition, the witnesses are available. Furthermore, Mr. King’s May 25,

2012 affidavit only establishes that Mr. Catalano stated that he is unwilling

to testify on behalf of PHS, not that he would not testify if compelled. Mr.

King’s representation that Mr. Teal would be unwilling is based on

supposition as he admittedly did not contact him.        See Pa.R.C.P 1035.4

                                     - 12 -
J-S04012-16



(“Supporting and opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show

affirmatively that the signer is competent to testify to the matters stated

therein.”).    In short, PHS did not sufficiently demonstrate that these

witnesses were truly unavailable to establish prejudice for the laches

defense.

       We turn now to Mr. Watson’s claim that summary judgment was

improperly granted on the merits of his successor liability claim. He claims

that he proffered sufficient evidence that PHS purchased CPS for inadequate

consideration and without provision for payment of employee discrimination

and medical malpractice claims so as to create a genuine issue of material

fact that would preclude the entry of summary judgment.

       The general rule in Pennsylvania is that "when one company sells or

transfers all of its assets to another company, the purchasing or receiving

company is not responsible for the debts and liabilities of the selling

company simply because it acquired the seller's property."             Continental

Ins.   Co.    v.   Schneider,   Inc.,    873     A.2d   1286,   1291   (Pa.   2005).

Pennsylvania courts have identified five exceptions to this general rule

against successor liability where: (1) the purchaser expressly or implicitly

agreed to assume liability, (2) the transaction amounted to a consolidation

or merger, (3) the purchasing corporation was merely a continuation of the

selling corporation, (4) the transaction was fraudulently entered into to

                                        - 13 -
J-S04012-16



escape liability, or (5) the transfer was without adequate consideration and

no provisions were made for creditors of the selling corporation.              Id.

Johnson v. Am. Std., 8 A.3d 318, n.1 (Pa. 2010). As this Court observed

in our prior memorandum, “The last four exceptions are related to the

concept that a corporate entity seeking to escape liabilities cannot simply

sell its assets to another corporate body to evade its responsibilities.”

Watson II, supra at 13. The second and third exceptions are implicated

where there is a continuity of identity between the buyer and seller, which is

not the case herein. The fifth exception is the focus of this appeal: whether

there was adequate consideration for the transfer and whether provisions

were made for creditors of the selling corporation.

       The burden of proving that the transfer was made without adequate

consideration and without provision for the seller’s creditors is on Mr.

Watson herein.         Mr. Watson contends first that the asset purchase

agreement did not provide for creditors.           In support thereof, he asks this

Court to take judicial notice of facts he gleaned from filings in Prison

Health Servs. v. Umar, supra4 and Brzozowski v. Corr. Physician

____________________________________________


4
  PHS obtained injunctive relief therein against Emre Umar and Correctional
Medical Care, Inc., for their violation of the noncompetition agreement that
was part of the Asset Purchase Agreement. While it was noted therein that
CPS was in financial difficulty when it sold its assets, it was also
acknowledged that several other entities were competing with PHS to
purchase CPS’s assets.



                                          - 14 -
J-S04012-16



Servs., 360 F.3d 173 (3d Cir. 2004). He maintains that, although the asset

purchase agreement provided for the payment of secured creditors, vendors,

the escrow of more than $1 million for an anticipated payment to the New

York Department of Corrections, and $4 million for other creditors, no

provision was made to pay any amounts that could be awarded on an EEOC

claim filed by Ms. Brzozowski or his threatened but unfiled malpractice

claim.5    Furthermore, since the transaction was structured to place the

Umars and secured creditor First Union at the head of the line, “it is

reasonable to infer that PHS engaged in this sale so that CPS could avoid its

liabilities.” Appellant’s Brief at 17.6

       In response, PHS points to its due diligence to discover all known or

threatened litigation against CPS, its debts, and the creation of an oversight

committee and account to ensure the payment of creditors. It argues that

____________________________________________


5
  Ms. Brzozowski’s employment discrimination claim, unlike Mr. Watson’s
unfiled medical malpractice claim, was specifically referenced in the
Agreement between PHS and CPS. The Court of Appeals pointed to that fact
when it permitted her to amend her complaint to assert a successor liability
claim against PHS in an attempt to collect the consent judgment entered
against CPS on her claim. The Court reasoned that PHS “had means at its
disposal to anticipate such a situation and offset expected costs associated
with a potential claim like that of [Ms. Brzozowski].” Brzozowski v. Corr.
Physician Servs., 360 F.3d 173, 178 (3d Cir. 2004).
6
  In support thereof, Mr. Watson supplied an anonymous unsigned expert
report that was disregarded by the trial court. He notes in passing that
Pa.R.C.P. 1035.1 contains no requirement that a report be signed, but does
not challenge the court’s ruling on appeal.



                                          - 15 -
J-S04012-16



this conduct distinguishes the instant situation from the one identified in

Johnson, supra, where “no provisions were made for creditors of the

selling corporation.” Appellee’s brief at 20. According to PHS, the law does

not require a buyer to provide for payment to all unknown or potential

creditors. It charges that Mr. Watson had not filed a lawsuit at the time the

Agreement was executed and thus, he was not identified on Schedule 4.1.12

(Material Litigation). PHS takes issue with Mr. Watson’s characterization of

himself as a creditor since he had not filed a claim prior to the execution of

the Agreement.7

       Herein, the record confirms that PHS took steps to ensure that

creditors were not shortchanged in the transfer.     It assumed the liabilities

identified in Schedule 6.2.2. It required CPS to disclose its creditors, created

an oversight fund from which payment would be made to vendors and

creditors like Ms. Brzozowski, and formed an oversight committee to

administer and distribute the funds. Unlike Ms. Brzozowski, Mr. Watson had

not filed a claim as of the date of the Agreement and was not identified as a

creditor in the Agreement. Mr. Watson’s claim is that the Agreement should

have made provision for the payment of persons who asserted medical

malpractice claims after its execution. We believe it did. PHS ascertained
____________________________________________


7
  Ms. Brzozowski is listed on Schedule 4.1.12 as having asserted a claim with
the HRC prior to the execution of the Agreement. However, she had not yet
obtained a judgment.



                                          - 16 -
J-S04012-16



through its due diligence that there was an occurrence-based professional

liability policy in effect that would cover medical negligence claims such as

the one subsequently filed by Mr. Watson. This simply does not present a

situation where no provisions were made for creditors of the selling

corporation.

      Mr. Watson also contends that the consideration PHS paid for CPS’s

assets was inadequate. While he proffered what he titled an expert report in

support of his position, the trial court disregarded the report as its author

was unidentified and the report was unsigned.        Mr. Watson does not

challenge that ruling on appeal. Thus, he failed to offer any expert opinion

that the consideration paid was inadequate.    His argument is based solely

upon another unrelated transaction where a higher multiplier was used to

calculate the value of assets and yielded a higher value. He contends that

the multiplier used herein was too low and resulted in a correspondingly low

valuation.

      PHS counters that it performed due diligence for a year prior to the

execution of the asset purchase agreement, hired independent professionals

to conduct arms-length valuation analyses, and paid a purchase price within

the range of value determined by those professionals.        The reports of

Morgan Keegan and Ernst and Young were appended to PHS’s motion.

Those reports substantiate that the amount paid was adequate.           PHS




                                   - 17 -
J-S04012-16



maintains that it cannot be required to pay more than the assets were worth

as that would undermine the business judgment rule.

      Additionally, PHS cites its disclosure to and approval from the Security

and Exchange Commission, the New York State Attorney General, and the

Pennsylvania Department of Corrections, as further evidence that the

Agreement was not constructively fraudulent.        It argues that Mr. Watson

failed to offer evidence sufficient to create a genuine issue of material fact as

to whether the consideration paid by PHS was adequate.

      We agree.    PHS performed its due diligence for a year prior to the

asset purchase.    As part of that process, Ernst and Young performed an

independent analysis of CPS’s financial data. PHS also hired Morgan Keegan

and relied upon its fairness opinion. The trial court expressly found that the

Morgan Keegan valuation “represents an expert opinion of value which this

Court considers key to the defense of the successor liability based on the

asset purchase.”    Trial Court Opinion, 6/23/15, at unnumbered 6.           Mr.

Watson did not supply a contrary expert opinion as to CPS’s value or the

adequacy of the consideration paid. It is not enough for Mr. Watson to point

to another transaction where a higher multiplier was used in computing

value and to ask this Court to infer that the same multiplier should have

been used herein to yield a higher value. That is the role of an expert. In

short, we agree with the trial court that Mr. Watson “failed to supply any




                                     - 18 -
J-S04012-16



evidence which, if believed, could support a successor liability claim.” Id. at

unnumbered 8. On the record before us, summary judgment was proper.

      Finally, Mr. Watson complains summary judgment was inappropriate

as there were outstanding discovery motions. He maintains that his motion

to compel PHS to provide discovery had not been addressed when summary

judgment was granted although he filed a praecipe for argument.           PHS

acknowledges that such a motion had been filed. However, PHS represents

that the parties conferred on the discovery issues and PHS provided answers

to Mr. Watson’s interrogatories and requests for production of documents.

Thus, PHS contends the motion is moot.

      In opposing summary judgment, Mr. Watson did not argue that

summary judgment was premature due to outstanding discovery issues.

“Issues not raised in the lower court are waived and cannot be raised for the

first time on appeal.”    Pa.R.A.P. 302(a).    Furthermore, in his Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, Mr. Watson

vaguely alleged that the trial court erred when it failed “to rule on motion

that where [sic] still open.” Pa.R.A.P. 1925(b) Concise Statement, 3/25/15,

at 1. The trial court did not address this issue in its Rule 1925(a) opinion,

an omission we attribute to Mr. Watson’s failure to supply sufficient detail to

apprise the court of his complaint.      We find this issue waived for this

additional reason.

      Order affirmed.

                                    - 19 -
J-S04012-16




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/4/2016




                          - 20 -
