J-A17007-18

                               2018 PA Super 263

 DOUGLAS L. GUNTRUM                      :   IN THE SUPERIOR COURT OF
                                         :         PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 CITICORP TRUST BANK                     :
                                         :
                   Appellant             :         No. 1500 WDA 2017

          Appeal from the Judgment Entered September 13, 2017
             in the Court of Common Pleas of Clarion County,
                   Civil Division at No(s): 484 C.D. 2009

BEFORE: OTT, J., KUNSELMAN, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:                      FILED SEPTEMBER 21, 2018

     Citicorp Trust Bank (“Citicorp”) appeals from the default Judgment

entered against it and in favor of Douglas L. Guntrum (“Guntrum”). We affirm.

     Guntrum commenced this action against Citicorp via a Complaint filed

in April 2009. This Court previously explained that

     [i]n his Complaint, Guntrum alleged that Citicorp did not honor a
     credit disability insurance policy (hereinafter “the insurance
     policy”). According to Guntrum, he purchased the insurance
     policy from Citicorp at the same time he secured a mortgage from
     Citicorp in January of 2003. The mortgage, in the amount of
     $47,478.80, was secured by Guntrum’s [former] residence,
     located in New Bethlehem (hereinafter “the Property”). Guntrum
     used the mortgage funds to make improvements to the Property.
     After the improvements, [according to Guntrum,] the Property
     was appraised at $115,000. The insurance policy was meant to
     provide a temporary waiver of Guntrum’s required mortgage
     payments if he became disabled.          Guntrum alleged in his
     Complaint that Citicorp did not honor the insurance policy when
     he became disabled in November of 2005 …. As a result of
     Citicorp’s refusal to honor the insurance policy, the Property was
     foreclosed upon, and Guntrum therefore lost all of his equity in
     the Property. Citicorp subsequently purchased the Property at a
     sheriff’s sale. In his Complaint, Guntrum claimed relief for[, inter
     alia,] breach of contract ….
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Guntrum v. Citicorp Tr. Bank, 159 A.3d 49 (Pa. Super. 2016) (unpublished

memorandum at 1-2) (footnote moved to body, brackets and ellipses omitted)

(hereinafter referred to as Guntrum I), appeal denied, 169 A.3d 1042 (Pa.

2017).

       After Citicorp failed to respond to Guntrum’s Complaint and two

subsequent 10-day Notices of default judgment, the trial court issued an Order

directing the Prothonotary to enter a default judgment against Citicorp. The

trial court scheduled a non-jury trial, solely on the issue of damages, for

February 5, 2010 (hereinafter “the damages trial”).

       Importantly to this appeal, neither Citicorp nor its counsel attended the

damages trial.1     Citicorp also did not file any pre-trial documents.   At the

damages trial, Guntrum testified to the value of the Property and the amount

of his damages.        There was no additional evidence or expert testimony

presented at the damages trial to establish the value of the Property.

However, Guntrum testified that an unidentified appraiser had, at some point,

assessed the value of the Property at $115,000. See N.T., 2/5/10, at 8; see

also id. at 5 (wherein Guntrum’s counsel represented to the trial court that

“Citicorp appraised [the Property] when they foreclosed on it[] … at or about

[$115,000]”; however, this appraisal was not disclosed in discovery or made

part of the record).

____________________________________________


1Citicorp was given proper and timely notice of the damages trial.          See
Guntrum I, 159 A.3d 49 (unpublished memorandum at 4-5).
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       By an Opinion and Order entered on March 12, 2010, the trial court

awarded Guntrum damages in the amount of $125,558, and thoroughly

explained its reasons for the amount of the award. In sum, the court credited

Guntrum’s position that, after he had made substantial improvements to the

Property, its value was $115,000,2 see Opinion and Order, 3/12/10, at 3, and

concluded that he was entitled to both general and consequential damages.

See id. at 5-7. Concerning consequential damages, the trial court found that

       [Citicorp’s] breach not only caused [Guntrum] to lose all the
       equity value he had in [the Property, i.e., approximately
       $70,000], but it also caused him to lose 60 months of rent[-]free
       occupancy of the [Property] and the possibility of paying the
       [Property] off in the future. Therefore, [Guntrum] lost the entire
       value of the [Property], not simply the equity, as a consequence
       of [Citicorp’s] breach of contract.

Id. at 7. The trial court also found that, as of the date of the damages trial,

Guntrum had incurred approximately $10,500 in rent payments and

residential storage fees. Id. at 6. However, the trial court declined to award

Guntrum requested punitive damages, treble damages, and attorneys’ fees,

finding that he had failed to present sufficient evidence to support these

damages. See id. at 7-10.


____________________________________________


2 In this regard, the trial court noted that although Guntrum’s original
mortgage on the Property was approximately $47,500, he subsequently made
“extensive improvements to the home, including an addition that added
another bathroom to the home, two additional bathrooms, and a master
bedroom. [Guntrum] also installed hardwood flooring in the bathroom,
installed new siding, and installed a new roof.” Opinion and Order, 3/12/10,
at 2-3.


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       Ten days after the March 12, 2010 Opinion and Order, Citicorp’s counsel

filed a Petition to Open the default judgment. The trial court granted this

Petition on May 21, 2010, and thereafter vacated the default judgment.3 The

trial court eventually entered summary judgment in favor of Citicorp.

Following Guntrum’s appeal of this ruling in 2015, we held, in Guntrum I,

that the trial court had abused its discretion in granting Citicorp’s Petition to

Open and entering summary judgment in its favor. Accordingly, we remanded

to the trial court for the re-entry of default judgment in favor of Guntrum in

the amount of $125,558, plus interest.           See Guntrum I, 159 A.3d 49

(unpublished memorandum at 23).

       Pursuant to this Court’s remand instructions, the trial court Prothonotary

entered judgment in favor of Guntrum on September 13, 2017. Two days

later, Citicorp filed a “Motion for Post-Trial Relief and/or Remittur” (hereinafter

the “Post-Trial Motion”). Therein, Citicorp argued that it was entitled to a new

trial on damages because the trial court’s damages award was not supported

by competent evidence, and was based on speculation. On September 27,

2017, the trial court denied the Post-Trial Motion. Citicorp then timely filed a

Notice of Appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise

Statement of errors complained of on appeal.

       Citicorp presents the following issues for our review:


____________________________________________


3 In a subsequent Order, the trial court found Citicorp’s Post-trial Motion
challenging the damages awarded to be moot, due to the court’s having
vacated the default judgment.
                                           -4-
J-A17007-18


      1. Whether the trial court’s award of $125,558 in damages to
         [Guntrum] should be vacated because said award was
         unsupported by any competent, credible, or admissible
         evidence, was manifestly excessive under the circumstances,
         and bore no reasonable relation to the injuries allegedly
         suffered by [Guntrum?]

      2. Whether the trial court abused its discretion in denying
         [Citicorp’s] [] Post-Trial [Motion] … because – in light of the
         trial court’s erroneous ruling awarding damages in the amount
         of $125,558 to [Guntrum] – [Citicorp] was entitled to a new
         trial on damages[?]

      3. Whether the trial court committed an error of law in ruling that
         it lacked the ability to modify the damages award pursuant to
         [Citicorp’s] [] Post-Trial [Motion] …[?]

Brief for Appellant at 5.     We will address these issues simultaneously, as

Citicorp does in its brief.

      After trial, and upon the written motion for post-trial relief filed by any

party, a trial court may order a new trial as to all or any of the issues. See

Pa.R.C.P. 227.1(a). When considering a challenge to the denial of a motion

for a new trial, we apply the following standard of review:

      We will reverse a trial court’s decision to deny a motion for a new
      trial only if the trial court abused its discretion. We must review
      the court’s alleged mistake and determine whether the court erred
      and, if so, whether the error resulted in prejudice necessitating a
      new trial. If the alleged mistake concerned an error of law, we
      will scrutinize for legal error. Once we determine whether an error
      occurred, we must then determine whether the trial court abused
      its discretion in ruling on the request for a new trial. An abuse of
      discretion exists when the trial court has 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.

Vetter v. Miller, 157 A.3d 943, 947 (Pa. Super. 2017) (citation omitted).



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J-A17007-18


      Rule of Civil Procedure 227.1 further provides, in relevant part, as

follows:

      (b) Except as otherwise provided by Pa.R.E. 103(a), post-trial
      relief may not be granted unless the grounds therefor,

           (1) if then available, were raised in pre-trial proceedings
           or by motion, objection, point for charge, request for
           findings of fact or conclusions of law, offer of proof or other
           appropriate method at trial; and

                                     ***

           (2) are specified in the motion. The motion shall state how
           the grounds were asserted in pre-trial proceedings or at
           trial. Grounds not specified are deemed waived unless leave
           is granted upon cause shown to specify additional grounds.

      (c) Post-trial motions shall be filed within ten days after

           (1) verdict, discharge of the jury because of inability to
           agree, or nonsuit in the case of a jury trial; or

           (2) notice of nonsuit or the filing of the decision in the case
           of a trial without jury.

Pa.R.C.P. 227.1(b), (c).

      Citicorp argues that the trial court erred in awarding Guntrum $125,558

in damages, where such award was speculative and unsupported by any

competent evidence. See Brief for Appellant at 23 (citing, inter alia, Spang

& Co. v. U.S. Steel Corp., 545 A.2d 861, 866 (Pa. 1988) (stating that “[a]s

a   general     rule,   damages    are   not   recoverable    if   they   are   too

speculative, vague or contingent and are not recoverable for loss beyond an

amount that the evidence permits to be established with reasonable

certainty.”).    Specifically, Citicorp complains that Guntrum’s mere lay


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J-A17007-18


testimony at the damages hearing, concerning the value of the Property, was

insufficient to prove its value, upon which to base a valid damages award.

Brief for Appellant at 25 (citing, inter alia, Evans v. Allied Disc. Co., 184

A.2d 345, 347 (Pa. Super. 1962) (stating that “to permit the plaintiff to have

a judgment … based upon his own valuation … may result in an unjust

enrichment of considerable proportion.”). According to Citicorp, “[p]roof of

the value of real property generally must be rooted in expert testimony.” Brief

for Appellant at 25. Citicorp contends that, therefore, “[a]s a matter of law,

[] a party’s self-serving testimony as to an unidentified appraiser’s valuation

of real property[,] rendered on an unspecified date – without more – is

insufficient to support a damages award.” Id.; see also id. at 27 (wherein

Citicorp emphasizes that Guntrum’s alleged appraiser was never identified or

called as a witness, and Guntrum did not present any appraisal report or

expert testimony to establish the value of the Property).

      Additionally, Citicorp argues that Guntrum’s testimony at the damages

hearing as to the value of the Property violated the Pennsylvania Rules of

Evidence for several reasons, including (1) Guntrum’s testimony was

inadmissible hearsay, see Pa.R.E. 802; (2) Guntrum was not qualified as an

expert, see Pa.R.E. 702; and (3) there was no foundation laid for Guntrum to

testify as a lay witness, see Pa.R.E. 602, since he “never testified as to any

personal knowledge regarding the value of the Property.”        See Brief for

Appellant at 29-32.

      Finally, Citicorp asserts that

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J-A17007-18


       the trial court’s consequential damages award, rooted in the
       unsupported assumptions that Guntrum would have qualified for
       the full 60 months of waived mortgage payments[,] and then
       would have been able to pay off the remainder of the loan, was
       based on nothing more than speculation and conjecture[, and] is
       insufficient to support an award of damages.

Id. at 38 (some capitalization omitted); see also id. at 33 (asserting that the

trial court erred in ruling that Citicorp’s breach caused Guntrum to lose the

“entire value” of the Property, i.e., $115,000, instead of just his equity).

       Initially, we acknowledge that Citicorp correctly points out that “[w]hile

Rule 227.1(b) generally provides that arguments are waived if not raised pre-

trial[,] and again in a motion for post-trial relief, this rule does not apply to

challenges to the weight of the evidence[.]” Reply Brief for Appellant at 4

(citing Criswell v. King, 834 A.2d 505, 513 (Pa. 2003) (stating that

challenges to the weight of the evidence are not barred by Rule 227.1(b)

because such claims “ripen[] only at the post-verdict stage”)). Thus, Citicorp’s

challenge to the weight of the evidence supporting the non-jury verdict is

preserved.4




____________________________________________


4Though Guntrum argues that Citicorp’s Post-Trial Motion, filed over seven
years after the trial court’s March 2010 original entry of judgment in favor of
Guntrum, is untimely under Rule 227.1(c), see Brief for Appellee at 3-4, we
will address the merits of Citicorp’s weight argument. See Reply Brief for
Appellant at 6 (stating that “the original entry of judgment in favor of
Guntrum[, i.e., in] March [] 2010[,] was ‘vacated and rescinded on May 20,
2010 – after [Citicorp’s] original post-trial [M]otion was timely submitted on
March 19, 2010 – and [] judgment was not finally entered until September
13, 2017.” (emphasis and citation omitted)).
                                           -8-
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      To the extent that Citicorp raises claims aside from a weight challenge

(including a challenge to the competency of the evidence adduced at the

damages trial), the trial court correctly addressed this matter as follows:

      Citicorp did not appear at the [damages] trial, even though it
      received proper and timely notice of the proceedings. Therefore,
      Citicorp is precluded from raising grounds for a new trial that could
      have been raised at trial, but were not. Citicorp cannot maintain
      a claim that this court erred in admitting hearsay evidence[,] as
      [Citicorp] was not present at trial to object on the record. It did
      not raise an objection via pretrial motion. Therefore, Citicorp is
      not entitled to a new trial on this basis.

Trial Court Opinion, 9/27/17, at 4.         We agree with the trial court’s

determination and therefore affirm on this basis as to these claims. See id.;

see also Pa.R.Crim.P. 227.1(b)(1), Note (providing that “[i]f no objection is

made, error which could have been corrected in pre-trial proceedings or during

trial by timely objection may not constitute a ground for post-trial relief.”);

accord Dilliplaine v. Lehigh Valley Tr. Co., 322 A.2d 114, 117 (Pa. 1974)

(stating that the general requirement that a specific objection must be placed

on the record in order to preserve a challenge for appellate review “remove[s]

the advantage formerly enjoyed by the unprepared trial lawyer who looked to

the appellate court to compensate for his trial omissions.”).

      Concerning Citicorp’s weight challenge, it is well established that,

generally, an “owner is competent to testify to the value of his property …

since he has at least a general knowledge of what he owns.” Sgarlat Estate

v. Commonwealth, 158 A.2d 541, 545 (Pa. 1960); see also Glanski v.

Ervine, 409 A.2d 425, 431 (Pa. Super. 1979); Silver v. TV City. Inc., 215


                                      -9-
J-A17007-18


A.2d 335 (Pa. Super. 1965). In Richards v. Sun Pipe Line Co., 636 A.2d

1162 (Pa. Super. 1994), this Court rejected a challenge to the legal

competency of lay testimony from landowners concerning the value of their

real property:

      [W]e find [the landowners’] testimony concerning the value of
      their property was competent. The fact that they were not
      “experts” in the field of real estate valuation did not render their
      testimony incompetent. “The real owner is deemed qualified, by
      reason of his relation as owner, to give estimates of the value of
      what he owns regardless of his knowledge of property values, and
      the weight of such evidence is for the [fact-finder].” Pavloff v.
      Clairton, 146 Pa.Super. 158, 159, 22 A.2d 74, 75 (1941)
      (emphasis added).

Richards, 636 A.2d at 1165.

      Here, Guntrum was likewise competent to give an estimate of the value

of the Property. See id. Moreover, it was solely within the province of the

trial court to assess the credibility of Guntrum’s testimony and the weight to

give it.   See Mackay v. Mackay, 984 A.2d 529, 533 (Pa. Super. 2009)

(stating that “[w]hen the trial court sits as fact[-]finder, the weight to be

assigned the testimony of the witnesses is within its exclusive province, as are

credibility determinations, and the court is free to choose to believe all, part,

or none of the evidence presented.” (citation and brackets omitted)).         We

decline Citicorp’s invitation to assume the role of the fact-finder and to reweigh

the evidence on appeal. See id. (emphasizing that “[t]his Court is not free to

usurp the trial court’s duty as the finder of fact.” (citation and brackets

omitted)). Thus, upon our review of the record and Citicorp’s arguments, we



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J-A17007-18


conclude that the trial court did not abuse its discretion in denying Citicorp’s

weight of the evidence contention.

      Finally, we cannot agree with Citicorp’s claim that the trial court’s award

of consequential damages was improper as being speculative, particularly

where Citicorp did not appear at the damages trial to contest these damages.

We discern no reversible error in the trial court’s determination that

“[Citicorp’s] breach not only caused [Guntrum] to lose all the equity value he

had in [the Property], but it also caused him to lose 60 months of rent[-]free

occupancy of the [Property] and the possibility of paying the [Property] off in

the future. Therefore, [Guntrum] lost the entire value of the [Property] ….”

Opinion and Order, 3/12/10, at 7.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/21/2018




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