J-A15016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 VALLEY FORGE MILITARY ACADEMY           :    IN THE SUPERIOR COURT OF
 AND COLLEGE                             :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
 WILLIAM O'BRIEN                         :
                                         :
                                         ::
 APPEAL OF: WILLIAM O'BRIEN              :         No. 2814 EDA 2018

            Appeal from the Judgment Entered September 4, 2018
              In the Court of Common Pleas of Delaware County
                   Civil Division at No(s): CV-2016-001174


BEFORE:     BENDER, P.J.E., GANTMAN, P.J.E., and COLINS*, J.

MEMORANDUM BY GANTMAN, P.J.E.:                  FILED DECEMBER 10, 2019

     Appellant, William O’Brien, appeals from the judgment entered in the

Delaware County Court of Common Pleas in favor of Appellee, Valley Forge

Military Academy and College (“VFMA”), following VFMA’s supplemental

petition for attorneys’ fees resulting in a molded verdict and judgment of

$50,851.21 in this breach of contract action. We affirm.

     The relevant facts and procedural history of this case are as follows:

          VFMA is a private, non-profit, education institution located
          in Wayne, Pennsylvania. [Appellant] is an attorney and the
          father of Gavin O’Brien (“Gavin”), who enrolled as a cadet
          at VFMA in August 2014. In the course of enrollment, VFMA
          and [Appellant] entered into several written agreements
          concerning Gavin’s conduct and [Appellant’s] financial
          responsibility for payment of tuition and fees.        Those
          agreements included a Billing and Payment Contract
          (“Contract”) executed on or about August 1, 2014. The
          Contract sets forth, in pertinent part that the cadet:

             will be subject to abide by the prevailing rules and
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A15016-19


          regulations as stated in the VFMA publication, The
          Guidon;

          may from time to time be subject to blood, urine,
          and/or hair follicle screening and/or other testing for
          substance (drug and/or alcohol) use, both on a
          random and on a suspicion-of-use basis;

          was subject to immediate dismissal by the President,
          if it is determined that the [cadet] has committed an
          immoral and/or criminal act or other serious offense,
          or violated prevailing rules and regulations including,
          but not limited to, regulations regarding substance
          (alcohol/illegal substance) use and/or possession.

          VFMA reserves the right to dismiss or not re-enroll a
          Cadet if the Administration reasonably concludes that
          the actions of the Cadet or the parents/Guardians
          interfere with establishing and maintaining a positive
          and constructive relationship or otherwise seriously
          interferes with the accomplishment of the VFMA
          Mission.

       The Contract further provides that [Appellant] agreed to pay
       for education-related expenses for Gavin’s enrollment at
       VFMA in accordance with VFMA’s Billing and Payment
       Policies. The Contract also includes the following provision:
       “VFMA shall be entitled to reimbursement of its costs and
       reasonable counsel fees in any such litigation in which VFMA
       is the substantially-prevailing party.”

       Two months after enrolling in VFMA, on November 8, 2014,
       Gavin and another cadet were involved in activity resulting
       in twenty-one criminal (21) charges being lodged against
       them, including alcohol-related charges. On November 24,
       2014, VFMA informed [Appellant] that it had conducted a
       disciplinary board hearing concerning Gavin’s actions and
       Gavin received punishment including placement on the
       Conduct Probation List, a recommendation for dismissal
       pending further information, and an out-of-school
       suspension. VFMA also notified [Appellant] that “violation
       of any of the terms of probation will be justification for
       automatic dismissal.”


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       Approximately six weeks later, VFMA tested Gavin for
       substance/alcohol abuse. That test returned a positive
       result for marijuana and amphetamines, constituting
       violations of VFMA’s substance abuse policy as well as the
       conditions of Gavin’s probationary status. Shortly after he
       tested positive on the drug screen, VFMA dismissed Gavin.
       [Appellant] appealed the decision to dismiss. VFMA rejected
       the appeal and provided [Appellant] with a transcript of the
       courses Gavin had successfully completed and for which he
       had received credit.

       On April 14, 2015, VFMA sent the first of three statements
       seeking the unpaid balance of tuition and fees totaling
       $7,329.40. When those Statements were not paid, VFMA
       filed a Complaint against [Appellant] seeking the unpaid
       balance. In the Complaint VFMA alleged that [Appellant]
       was in breach of the Contract by not paying the remainder
       of the fees for Gavin.        VFMA attempted service on
       [Appellant] at least four times, and finally sought alternative
       service from this [c]ourt. On August 29, 2017, [Appellant]
       responded to the Complaint, and counter-claimed against
       VFMA, alleging unjust enrichment for approximately
       $20,000.00 in tuition for the second semester that
       [Appellant] had paid.

       The parties submitted this matter to arbitration on
       December 7, 2017. The arbitration panel found in favor of
       VFMA and awarded $8,684.86 in damages to VFMA.
       [Appellant] appealed this award on January 9, 2018.

                                *    *    *

       This [c]ourt convened a non-jury trial on this matter on April
       23, 2018. At trial, VFMA introduced evidence and testimony
       to show that [Appellant] signed the Contract and failed to
       pay the outstanding invoices, through the testimony of
       Steven Berezansky, the bursar of the school. [Appellant]
       attempted to show that the summary dismissal of Gavin
       after the second instance of Gavin’s violation of the
       substance abuse policy was improper. To accomplish this,
       [Appellant] testified and also called Robert Wood as a
       witness. [Appellant] testified as to his knowledge of the
       Contract at the time he signed it, and his version of the
       details of Gavin’s expulsion. He also testified as to the basis

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J-A15016-19


       for his counterclaim. On cross-examination, [Appellant]
       testified that he was an attorney who had been in practice
       for more than 25 years. He also testified he had not read
       all of the Contract, The Guidon, or the Parents’ Handbook
       prior to signing the Contract.

       At the time Mr. Wood was called to testify, the [c]ourt
       engaged in a colloquy with counsel for [Appellant]
       concerning Mr. Wood’s background and the relevance of his
       testimony. After taking the stand and beginning to testify,
       it became clear that Mr. Wood did not have personal
       knowledge of the events concerning Gavin’s dismissal. …
       Upon that disclosure, VFMA’s counsel moved to strike the
       witness. The [c]ourt agreed: “[S]o I don’t know how this
       gentleman can move the ball forward, so to speak, when he
       has no knowledge of the—of what happened….” After
       further colloquy, the [c]ourt granted VFMA’s motion to strike
       Mr. Wood’s testimony.

                                 *    *    *

       On July 2, 2018, this [c]ourt awarded $7,329.40 in damages
       and $24,017.34 in attorneys’ fees and costs in its Order. On
       July 17, 2018, VFMA filed a Supplemental Petition for
       Attorneys’ Fees as permitted by the July 2, 2018 Order.
       [Appellant] failed to respond to this Supplemental Petition.

       On July 13, 2018, [Appellant] submitted a Motion for Post-
       Trial Relief asserting several points of alleged error including
       assertions that VFMA’s counsel made misleading statements
       concerning school procedures for dismissal, and that The
       Guidon and related documents do not require summary (or
       instant) dismissal for violation of the conditions of Gavin’s
       probation or violation of the school’s drug and alcohol
       policies. [Appellant] further alleged that VFMA had not put
       forth evidence concerning analysis or conclusions about the
       effect Gavin’s violation of school policies had on
       relationships at the school or the school’s mission. With
       respect to attorneys’ fees, [Appellant] alleged that the
       [c]ourt failed to determine if the fees requested were
       reasonable. Finally, [Appellant] argued that dismissal or
       preclusion of Robert Wood as a witness was improper. …

                                 *    *    *

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J-A15016-19



        On September 4, 2018, this [c]ourt denied the Motion for
        Post-Trial Relief and also entered an Order for a Molded
        Verdict, granting [VFMA’s] Supplemental Petition for
        Attorneys’ Fees.

(Trial Court Opinion, filed December 4, 2018, at 1-8) (internal citations and

some quotation marks omitted). The court awarded an additional $19,504.47

in counsel fees and costs, resulting in a molded verdict and judgment of

$50,851.21 in favor of VFMA.    Appellant filed a timely notice of appeal on

September 28, 2018. On October 3, 2018, the court ordered Appellant to file

a concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b); Appellant complied.

     Appellant raises the following issues for our review:

        WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
        IN DISQUALIFYING WITNESS OF APPELLANT…FOR
        ABSENCE OF PERSONAL KNOWLEDGE WHERE THE
        WITNESS WAS PROFFERED TO TESTIFY AS TO HIS
        KNOWLEDGE     AND    EXPERTISE   REGARDING    THE
        REQUIREMENTS, PRIOR TO EXPULSION OF STUDENT, OF A
        “REASONABLE” CONCLUSION AND/OR A HEARING,
        IMPOSED BY THE WRITTEN TERMS OF THE CONTRACT, AND
        THE INHERENT TERMS OF THE CONTRACT NECESSITATED
        BY DUE PROCESS, AND GOOD FAITH AND FAIR DEALING,
        WHERE APPELLANT[’S] WITNESS, [ROBERT] WOOD,
        ACQUIRED THE KNOWLEDGE AND EXPERTISE FROM
        SITTING ON HUNDREDS OF DISCIPLINARY HEARINGS
        DURING HIS SEVEN-YEAR EMPLOYMENT WITH [VFMA]…,
        AND AS THE DEAN OF STUDENTS, AND AS TITLE [IX]
        COORDINATOR, AND FROM EARNING A MASTER’S DEGREE
        IN EDUCATION, AND A MASTER’S DEGREE IN LEGAL
        STUDIES…[?]; AND IF SO;

           (A) WHETHER APPELLANT[’S]…WITNESS, [MR.]
           WOOD, WAS ESSENTIAL TO PROVING A MATERIAL
           BREACH OF THE CONTRACT BY [VFMA]…, BY VIRTUE

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J-A15016-19


            OF THE FAILURE OF [VFMA]…, PRIOR TO EXPULSION
            OF   STUDENT,   TO   MAKE    A   “REASONABLE”
            CONCLUSION AND/OR HOLD A HEARING, WHICH
            MATERIAL BREACH OF [VFMA]…OPERATED TO
            DISCHARGE THE DUTY OF PERFORMANCE OF
            APPELLANT…TO PAY REMAINING TUITION UNDER
            THE CONTRACT[?]

         WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
         IN DENYING THE MOTION FOR DISQUALIFICATION OF THE
         TRIAL COURT JUDGE…[?]

         WHETHER THE TRIAL COURT ERRED AS A MATTER OF LAW
         IN DENYING THE MOTION FOR POST TRIAL RELIEF OF
         APPELLANT…[?]

(Appellant’s Brief at 3-5).

      Preliminarily, Rule 1925(b) requires that statements “concisely identify

each error that the appellant intends to assert with sufficient detail to identify

the issue to be raised for the judge.” Pa.R.A.P. 1925(b)(4)(ii). “Issues not

included in the Statement and/or not raised in accordance with the provisions

of [Rule 1925(b)(4)] are waived.” Pa.R.A.P. 1925(b)(4)(vii); Majorsky v.

Douglas, 58 A.3d 1250 (Pa.Super. 2012), appeal denied, 620 Pa. 732, 70

A.3d 811 (2013), cert. denied, 571 U.S. 1127, 134 S.Ct. 910, 187 L.Ed.2d

780 (2014). Additionally, a Rule 1925(b) statement must be specific enough

for the trial court to identify and address the issues that an appellant wishes

to raise on appeal. Lineberger v. Wyeth, 894 A.2d 141 (Pa.Super. 2006).

If a concise statement is too vague, this Court may deem the issue waived.

Id.

      Here, Appellant failed to raise his second issue in his Rule 1925(b)


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J-A15016-19


statement. Therefore, it is waived. See Pa.R.A.P. 1925(b)(4)(vii); Majorsky,

supra. Additionally, in his third issue, Appellant essentially argues the court

erred in denying Appellant’s post-trial motion because the court should not

have determined Appellant breached the Contract for the following reasons:

(1) the court misinterpreted the terms of the Contract by reading words into

the Contract and ignoring language in the Contract; and (2) the Contract is

an adhesion contract.    Appellant failed to make these points in his Rule

1925(b) statement, however.      Rather, he limited his claim regarding the

court’s denial of his post-trial motion to a challenge to the award of and the

amount of attorneys’ fees the court granted VFMA.       Therefore, Appellant’s

third issue is also waived. See id. To the extent Appellant does mention

adhesion contracts, it is unclear whether Appellant challenged the entire

Contract as an adhesion contract, or only the attorneys’ fees provision. Thus,

Appellant’s third issue is waived on this basis as well.    See Lineberger,

supra.

      In his remaining issue presented, Appellant argues his witness, Robert

Wood, had experience dealing with disciplinary procedures during his time as

the Dean of Students and Title IX Coordinator at VFMA, which qualified him as

an expert witness in this matter. Appellant further alleges that Pa.R.E. 703

allows an expert witness like Mr. Wood to base his opinion on facts or data

without personal knowledge. Appellant contends Mr. Wood’s testimony was

essential to establish that the Contract required VFMA to hold a hearing before


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J-A15016-19


expulsion and reasonably decide that Gavin’s actions interfered with VFMA’s

mission.    Appellant concludes the trial court erred in excluding Appellant’s

witness, and this Court should reverse and remand for a new trial.         We

disagree.

      “[A] trial court has broad discretion with regard to the admissibility of

evidence….” Schuenemann v. Dreemz, LLC, 34 A.3d 94, 102 (Pa.Super.

2011). “To constitute reversible error, an evidentiary ruling must not only be

erroneous, but also harmful or [unduly] prejudicial to the complaining party.”

Ettinger v. Triangle-Pacific Corp., 799 A.2d 95, 110 (Pa.Super. 2002),

appeal denied, 572 Pa. 742, 815 A.2d 1042 (2003).

      Pennsylvania Rule of Evidence 701 addresses the admission of opinion

testimony by lay witnesses and provides:

           Rule 701. Opinion Testimony by Lay Witnesses

           If a witness is not testifying as an expert, testimony in the
           form of an opinion is limited to one that is:

            (a) rationally based on the witness's perception;

            (b) helpful to clearly understanding the witness's
            testimony or to determining a fact in issue; and

            (c) not based on scientific, technical, or other specialized
            knowledge within the scope of Rule 702.

Pa.R.E. 701.     With regard to the admission of expert witness testimony,

Pennsylvania Rule of Evidence 702 provides:

           Rule 702. Testimony by Expert Witnesses

           A witness who is qualified as an expert by knowledge, skill,

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J-A15016-19


        experience, training, or education may testify in the form of
        an opinion or otherwise if:

        (a) the expert’s scientific, technical, or other specialized
        knowledge is beyond that possessed by the average
        layperson;

        (b) the expert’s scientific, technical, or other specialized
        knowledge will help the trier of fact to understand the
        evidence or to determine a fact in issue; and

        (c) the expert’s methodology is generally accepted in the
        relevant field.

Pa.R.E. 702. Furthermore, “[a]n expert may base an opinion on facts or data

in the case that the expert has been made aware of or personally observed.”

Pa.R.E. 703.

     Instantly, Appellant called Mr. Wood to testify that VFMA’s disciplinary

actions regarding Gavin’s dismissal, particularly the lack of a hearing, were

unusual and improper. After he took the stand and began to testify, Mr. Wood

revealed his lack of involvement in, and personal knowledge of, the events

surrounding Gavin’s dismissal. VFMA moved to strike Mr. Wood as a witness,

and the court agreed. While Appellant now claims he called Mr. Wood as an

“expert” witness, the record shows otherwise. Rather, Appellant called Mr.

Wood as a lay or fact witness. As a lay witness, Mr. Wood was limited to

testifying about information “rationally based on [his] perception.”     See

Pa.R.E. 701. Thus, the court properly precluded Mr. Wood’s testimony upon

realizing he had no direct knowledge of what had occurred regarding Gavin’s

dismissal. See Schuenemann, supra.


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J-A15016-19


      Although not in his questions presented, Appellant also asserted in his

Rule 1925(b) statement and in his appellate brief that VFMA failed to

determine whether Gavin’s conduct “interfere[d] with establishing and

maintaining a positive and constructive relationship or otherwise seriously

interfere[d] with the accomplishment of the VFMA Mission.”            Appellant

maintains the Contract required VFMA to come to this conclusion before

dismissing a cadet, and VFMA failed to do so in this case. Appellant concludes

this Court should reverse and remand for a new trial. We disagree.

      Contract interpretation is a question of law; therefore, this Court is not

bound by the trial court’s interpretation. Kraisinger v. Kraisinger, 928 A.2d

333, 339 (Pa.Super. 2007). “Our standard of review over questions of law is

de novo and to the extent necessary, the scope of our review is plenary as the

appellate court may review the entire record in making its decision. However,

we are bound by the trial court’s credibility determinations.” Id. (quoting

Stamerro v. Stamerro, 889 A.2d 1251, 1258 (Pa.Super. 2005)).

      “To maintain a cause of action in breach of contract, a plaintiff must

establish: (1) the existence of a contract, including its essential terms; (2) a

breach of a duty imposed by the contract; and (3) resulting damages.”

Lackner v. Glosser, 892 A.2d 21, 30 (Pa.Super. 2006). “For a contract to

be enforceable, the nature and extent of the mutual obligations must be

certain, and the parties must have agreed on the material and necessary

details of their bargain.” Id. “An enforceable contract requires, among other


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J-A15016-19


things, that the terms of the bargain be set forth with sufficient clarity.” Id.

      “[T]he intent of the parties to a written contract is contained in the

writing itself. When the words of a contract are clear and unambiguous, the

meaning of the contract is ascertained from the contents alone.” Chen v.

Chen, 586 Pa. 297, 307, 893 A.2d 87, 93 (2006) (quoting Mace v. Atlantic

Refining Mktg. Corp., 567 Pa. 71, 80, 785 A.2d 491, 496 (2001)).

         When interpreting the language of a contract, the intention
         of the parties is a paramount consideration. In determining
         the intent of the parties to a written agreement, the court
         looks to what they have clearly expressed, for the law does
         not assume that the language of the contract was chosen
         carelessly. When interpreting agreements containing clear
         and unambiguous terms, we need only examine the writing
         itself to give effect to the parties’ intent.

Melton v. Melton, 831 A.2d 646, 653-54 (Pa.Super. 2003) (quoting Profit

Wize Mktg. v. Wiest, 812 A.2d 1270, 1274 (Pa.Super. 2002)).              In other

words, the intent of the parties is generally the writing itself. Kripp v. Kripp,

578 Pa. 82, 849 A.2d 1159 (2004). “If left undefined, the words of a contract

are to be given their ordinary meaning.” Id. at 90, 849 A.2d at 1163.

      Instantly, the trial court reasoned:

         [Appellant] contends that VFMA did not follow the
         requirements of the Contract because the school failed to
         conduct a hearing and also did not engage in an inquiry
         concerning the effect of Gavin’s actions on his relationships
         with the school or on the school’s mission. The Contract
         provides that: “VFMA reserves the right to dismiss or not re-
         enroll a Cadet if the Administration reasonably concludes
         that the actions of the Cadet or the parents or guardians
         interfere with establishing and maintaining a positive and
         constructive relationship or otherwise seriously interferes
         with the accomplishment of the VFMA Mission.”

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         The plain terms of the Contract set forth that the impact on
         relationships term in the [C]ontract is a reservation of rights
         to VFMA, not a duty imposed by the Contract. As such,
         failure by VFMA to perform such an inquiry is not a breach
         of a term of the Contract sufficient to relieve [Appellant] of
         his duty to make payment, [or] entitle him to the
         approximately $20,000.00 in unjust enrichment damages
         he seeks.

(Trial Court Opinion, filed December 4, 2018, at 9) (internal citations omitted).

The record supports the trial court’s decision to deny Appellant relief on the

grounds asserted. Accordingly, we affirm.

      Judgment affirmed.

      President Judge Emeritus Bender joins this memorandum.

      Judge Colins notes his dissent.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/10/19




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