J-A13035-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 BRYN MAWR EQUIPMENT FINANCE                   :   IN THE SUPERIOR COURT OF
 INC.,                                         :         PENNSYLVANIA
                                               :
                  Appellee                     :
                                               :
                      v.                       :
                                               :
 BRADLEY KANTOR,                               :
                                               :
                 Appellant                     :      No. 2175 EDA 2019

             Appeal from the Judgment Entered October 22, 2019
             in the Court of Common Pleas of Montgomery County
                    Civil Division at No(s): No. 2018-05170


BEFORE:      BENDER, P.J.E., LAZARUS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                         FILED AUGUST 31, 2020

       Appellant Bradley Kantor appeals from the judgment entered October

22, 2019, in favor of Bryn Mawr Equipment Finance, Inc. (BMEF) and against

Kantor in the amount of $60,951.84 plus costs, following a bench trial. We

affirm.

       This case arises from an Equipment Financing Agreement (Agreement)

executed on or about June 7, 2016, between MD Capital Partners, Inc.

(MDCP) as creditor, and Mobile Diagnostic Imaging, Inc. (MDI) as debtor,




____________________________________________


* Retired Senior Judge assigned to the Superior Court.
J-A13035-20


with   Kantor     as   personal     guarantor    of   debtor’s   obligations. 1   MDCP

subsequently assigned the agreement to BMEF.

       MDI agreed to make 60 monthly payments of $1,238.09, in addition to

other terms. MDI made 16 payments of $1,238.09, but failed to make any

payments after December 2, 2017, placing MDI in default under the terms of

the Agreement. Due to MDI’s default, BMEF declared all amounts due

immediately pursuant to paragraph 12 of the Agreement. Because MDI had

ceased operations, BMEF commenced this action against Kantor, as personal

guarantor, for monies owed under the Agreement.

       Paragraph 12 of the Equipment Finance Agreement provides as

follows.

       If you do not pay any payment or other sum due to us or other
       party when due or if you break any of your promises in the
       Agreement or any other Agreement with us, you will be in
       default. If any part of a payment is late, you agree to pay a late
       charge of 15% of the payment which is late or if less, the
       maximum charge allowed by law. If you are ever in default, we
       may retain your security deposit and at our option, we can
       terminate or cancel this Agreement and require that you pay the
       unpaid balance of this Agreement (discounted at 6%). We may
       recover interest on any unpaid balance at the rate of 8% per
       annum. We may also use any of the remedies available to us
       under Article 2A of the Uniform Commercial Code [(UCC)] as
       enacted in the State of California or any other law. If we refer
       this Agreement to an attorney for collection, you agree to pay
____________________________________________


1 Although not entirely clear from the record, it appears Kantor was the
President of MDI. See N.T., 6/27/2019, at 38, 41, Ex. A. On the same date
the Agreement was executed, Kantor signed a personal guaranty of prompt
payment and performance of all obligations under the Agreement.
Complaint, 3/15/2018, at Ex. A (Guaranty, 6/7/2016).



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       our reasonable attorney’s fees and actual court costs. If we have
       to take possession of the Equipment, you agree to pay the cost
       of repossession. The net proceeds of the sale of any repossessed
       Equipment will be credited against what you owe us under this
       Agreement. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE
       TO PAY YOU ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES
       FOR ANY DEFAULT BY US UNDER THIS AGREEMENT. You agree
       that any delay or failure to enforce our rights under this
       Agreement does not prevent us from enforcing any rights at a
       later time. It is further agreed that your rights and remedies are
       governed exclusively by this Agreement and you waive your
       rights under Article 2A (508-522) of the UCC. If your
       delinquency requires additional collection efforts, a charge will be
       assessed in accordance with our collection charge schedule.

Complaint, 3/15/2018, at Ex. A (Equipment Finance Agreement, 6/7/2016,

at ¶ 12).

       On September 10, 2018, Kantor filed a demand for a jury trial and

preliminary objections, to which BMEF filed an answer on September 13,

2018. The trial court overruled Kantor’s preliminary objections on October

26, 2018. Kantor filed an answer with new matter on November 19, 2018, to

which BMEF replied on November 21, 2018. A bench trial was held on June

27, 2019.2 The trial court summarized the evidence presented at trial as

follows.



____________________________________________


2 At the start of trial, the trial court heard argument from counsel for the
parties and testimony from Kantor regarding waiver of a jury trial under the
Agreement. The court ruled that a jury trial was waived under the
Agreement and the matter proceeded as a bench trial. N.T., 6/27/2019, at
3-19.




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               MDI, and by extension, Kantor, is in default for 44
        payments, plus late charges. BMEF’s witness, James Zelinskie,[3],
        testified that 44 payments remain under the [A]greement. Of
        the remaining payments, 19 are delinquent, and 25 are future
        payments that have been reduced by a 6% present value
        discount as required under the [Agreement]. The remaining 19
        delinquent payments of $1,238.09 each total damages of
        $23,523.71. The remaining 25 future payments discounted at
        6% total damages of $29,373.36. Late charges from August 13,
        2015 until June 27, 2019 at 10% total damages of $2,104.77.
        Attorney’s fees are damages in the amount of $5,950[].
        Zelinskie also testified that late charges of 10% have been
        sought on delinquent payments, although the [Agreement]
        authorizes late charges up to 15%. Zelinskie testified that BMEF
        pays attorney’s fees each month and has not had a reason to
        dispute the charges or refuse to pay. Zelinskie further testified
        on cross[-examination] that BMEF has been unable to locate the
        equipment or [obtain] good contact with Kantor, and as such has
        been unable to repossess the equipment at issue. Th[e trial court
        found] the testimony of Zelinskie credible. Kantor testified that
        the equipment is located in Florida and is available to BMEF.
        However, Kantor was unclear on which pieces of equipment were
        owned by BMEF, and th[e trial court did] not credit this
        testimony.

Trial Court Opinion, 9/16/2019, at 2-3 (some name designations altered;

citations and unnecessary capitalization omitted). At trial, Kantor moved to

dismiss, which the trial court denied. N.T., 6/27/2019, at 21, 36-39, 56-58.

At the close of trial, the court did not render a decision and took the matter

under advisement. N.T., 6/27/2019, at 58.

        The next day, June 28, 2019, Kantor filed what he titled a

“Supplemental Petition to Dismiss.” On July 2, 2019, the trial court filed its

order and decision, which denied Kantor’s petition and ordered judgment
____________________________________________


3   Zelinskie is President of BMEF. N.T., 6/27/2019, at 22.



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J-A13035-20


entered in favor of BMEF and against Kantor in the amount of $60,951.84,

plus costs. Judgment was entered on the docket that same date, July 2,

2019. Even though judgment had been entered, the following occurred.

BMEF responded to Kantor’s “Supplemental Petition to Dismiss” on July 10,

2019; Kantor filed a “Supplemental Post-trial Motion to Dismiss or Motion for

a New Trial” on July 16, 2019; and the trial court denied Kantor’s July 16,

2019 motion the same day, July 16, 2019.

        This appeal followed.4 On September 30, 2019, this Court entered an

order directing Kantor to show cause as to why this appeal should not be

quashed or dismissed for failure to preserve any issues for appellate review.

Specifically, the order stated that the trial court docket indicated Kantor had

not filed a timely post-trial motion, and no final judgment had been entered.

Order, 9/30/2019. Kantor responded on October 8, 2019, asserting that his

issues were preserved before, during, and after trial, and that the July 2,

2019 order was a final order. Response, 10/8/2019, at ¶¶ 1-6. Thereafter,

on October 16, 2019, this Court entered a second rule to show cause order

directing Kantor to praecipe the trial court prothonotary to enter judgment

on the decision of the trial court as required by Pa.R.A.P. 301. Order,

10/16/2019; see also Pa.R.C.P. 227.4 (entry of judgment upon praecipe of

party). Kantor complied and filed a response on October 22, 2019, indicating
____________________________________________


4   Kantor and the trial court complied with Pa.R.A.P. 1925.




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J-A13035-20


judgment was entered on October 22, 2019, and attached a copy thereto.

Response, 10/22/2019. We discharged the rules to show cause by order

entered October 29, 2019, and deferred the issues to this panel for

consideration. Order, 10/29/2019.5

       Kantor raises the following seven issues for our review.

       1.     Was it an error of law for the [trial] court to ignore the
       jurisdictional clause[,] which stated that the contract at issue
       was subject to California jurisdiction and law?

       2.  Was it an error of law for the [trial] court to ignore the
       commercially reasonable standard?

       3.    Was it an error of law for the [trial] court to ignore the
       issue of mitigation of damages?

       4.    Was it an error of law for the [trial] court to allow [BMEF]
       to request attorney’s fees after the close of the case?

       5.     Was it an error of law to ignore [Kantor’s] request for a
       jury trial of September 10, 2018 and order a bench trial on June
       19, 2019?

       6.   Was it an error of law for the [trial] court to ignore the
       request to reduce the verdict?

       7.     Is a contract of adhesion enforceable against an individual?

____________________________________________


5 On December 4, 2019, this Court dismissed the appeal for failure to file a
brief. Kantor filed an application to reinstate the appeal, claiming he did not
know the briefing schedule remained the same in light of the show-cause
orders. We vacated our order and reinstated the appeal on December 20,
2019. We specifically noted that “[t]o the extent [Kantor] avers that this
Court’s show-cause orders affected the briefing schedule, review of this
Court’s docket continued to reflect a due date of October 28, 2019, for
[Kantor’s] brief. Because [Kantor] filed a timely application to reinstate the
appeal, this Court grants [Kantor] relief.” Order, 12/20/2019, at 1 n.1.



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Kantor’s Brief at 3 (unnecessary capitalization altered).

      Before we reach the merits of Kantor’s issues, we first address the

entry of judgment below. “[T]he law of this Commonwealth has long

recognized that the entry of judgment is a jurisdictional matter.” Johnston

the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514 (Pa. Super.

1995). Moreover, “an appeal to this Court can only lie from judgments

entered subsequent to the trial court’s disposition of any post-verdict

motions, not from the order denying post-trial motions.” Johnston the

Florist, 657 A.2d at 514.

      As noted above, the certified record shows judgment was entered July

2, 2019. The trial court’s decision “ordered that judgment is entered in favor

of Plaintiff and against Defendant, in the amount of $60,951.84.” Decision,

7/2/2019, at 7. Likewise, the certified docket entry on July 2, 2019,

indicates the following. “Judgment entered in favor of Pltf and against Deft in

the amount of $60,951.84. This document was docketed and sent on

07/02/2019.” Docket Entry 21, 7/2/2019 (capitalization altered). Once the

trial court decision ordering entry of judgment was filed on July 2, 2019,

judgment was entered. Progressive Home Fed. Sav. & Loan Ass'n v.

Kocak, 518 A.2d 808, 809 (Pa. Super. 1986) (holding that when an order

stating “judgment is entered” was filed, judgment was entered and “it was

entirely unnecessary for appellee to praecipe for judgment”).




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      However, because the judgment in the instant matter was entered

simultaneously with the trial court’s decision and before the ten-day period

for filing a post-trial motion had expired, it was premature, and thus void.

Centrone v. Tuchinsky, 439 A.2d 1226, 1227 (Pa. Super. 1982) (holding

entry of judgment was premature and therefore void where it was entered

before trial court ruled on timely-filed exceptions to court’s adjudication);

accord Moore v. Quigley, 168 A.2d 334, 336 (Pa. 1961) (dismissing

appeal where the “judgment, having been entered before the time for filing

a new trial motion had expired, is void and of no legal effect”); see also

Pa.R.C.P. 227.4(1)(a) (stating prothonotary shall, upon praecipe of a party,

enter judgment upon the decision of a judge following a bench trial if no

timely post-trial motion is filed).

      Despite this error, we are satisfied that we have jurisdiction over this

appeal because judgment was subsequently entered. Even though Kantor’s

notice of appeal was filed before judgment was properly entered, our

jurisdiction was perfected upon the entry of judgment on October 22, 2019.

Johnston the Florist, 657 A.2d at 513 (“Even though the appeal was filed

prior to the entry of judgment, it is clear that jurisdiction in appellate courts

may be perfected after an appeal notice has been filed upon the docketing of

a final judgment.”); see also Harvey v. Rouse Chamberlin, Ltd., 901

A.2d 523, 525 n.1 (Pa. Super. 2006) (“Despite [a]ppellants’ error in

prematurely filing their notice of appeal, this Court will address the appeal


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J-A13035-20


because judgment has [since] been entered on the verdict.”); Pa.R.A.P.

905(a)(5) (“A notice         of appeal         filed after   the   announcement of a

determination but before the entry of an appealable order shall be treated as

filed after such entry and on the day thereof.”).6

       Nonetheless, we are unable to reach the merits of Kantor’s claims

because he has failed to preserve them. An appellant must file post-trial

motions within ten days after the court enters a decision. Pa.R.C.P.

227.1(c)(2) (“Post-trial motions shall be filed within ten days after … notice

of nonsuit or the filing of the decision in the case of a trial without jury.”).

“This Court has explained that the purpose of Rule 227.1 is to provide the

trial court the first opportunity to review and reconsider its earlier rulings

and correct its own error.” Brown v. Halpern, 202 A.3d 687, 698 (Pa.

Super. 2019) (citation and internal quotation marks omitted). Issues not

raised by a party in post-trial motions pursuant to Rule 227.1 are waived on

appeal. Chalkey v. Roush, 805 A.2d 491, 494 (Pa. 2002) (“Grounds not

specified by a party in post-trial motions pursuant to Rule 227.1 shall be

deemed waived on appellate review.”); Pa.R.C.P. 227.1(b)(2) (“The [post-

trial] motion shall state how the grounds were asserted in pre-trial



____________________________________________


6 We have corrected the caption accordingly. See Harvey, 901 A.2d at 525
n.1.




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J-A13035-20


proceedings or at trial. Grounds not specified are deemed waived unless

leave is granted upon cause shown to specify additional grounds.”).

      Here, Kantor’s July 16, 2019 post-trial motion purported to raise his

second, third, fourth, and sixth issues (relating to commercial resale of the

equipment at issue; mitigation of damages; attorney’s fees; and request to

reduce the verdict, respectively). Supplemental Post-trial Motion to Dismiss

or Motion for a New Trial, 7/16/2019, at 1. First, the remaining three issues

Kantor presents in his statement of questions on appeal are waived for

failure to raise them in a post-trial motion. Chalkey, 805 A.2d at 494;

Pa.R.C.P. 227.1(b)(2). Second, the trial court filed its decision on July 2,

2019, and Kantor had until July 12, 2019, to file a timely post-trial motion.

He filed his post-trial motion on July 16, 2019, more than ten days after the

trial court’s decision. Thus, Kantor’s post-trial motion was untimely filed.

      The trial court has broad discretion to dismiss an untimely post[-
      ]trial motion or to overlook its untimeliness. In Millard v.
      Nagle, [] 587 A.2d 10, 12 ([Pa. Super.] 1991), we held that,
      when untimely post-trial motions are filed within the thirty-day
      period that the trial court retains jurisdiction over the case, and
      when the trial court decides those issues without objection by an
      opposing party, we will treat the subsequent appeal as though
      the post-trial motions were timely filed for purposes of issue
      preservation.

Ferguson v. Morton, 84 A.3d 715, 719 (Pa. Super. 2013) (some citations

omitted).

      There is nothing in the record before us to indicate BMEF protested the

untimeliness of Kantor’s July 16, 2019 post-trial motion. However, in


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denying said motion, the trial court specifically noted the motion’s

untimeliness and did not address the merits. Order, 7/17/2019. This was

within the trial court’s discretion. Consequently, the conditions noted in

Millard are not satisfied and we need not treat the motion as though it was

timely filed for purposes of issue preservation. Ferguson, 84 A.3d at 719

n.4. Accordingly, Kantor failed to preserve any of his issues for our review.

      Even if Kantor had preserved his issues in a timely-filed post-trial

motion, we would nevertheless find them waived. First, Kantor failed to raise

his first and seventh issues in his Rule 1925(b) statement, and thus, they

would be waived. See Kantor’s Rule 1925(b) Statement, 8/16/2019; Linde

v. Linde, 220 A.3d 1119, 1146 (Pa. Super. 2019); Pa.R.A.P. 1925(b)(4)(vii)

(“Issues not included in the [s]tatement [of errors complained of on

appeal]... are waived.”).

      Next, turning to Kantor’s remaining issues, we would find them waived

due to the defects in Kantor’s brief and his failure to comply with our rules of

appellate procedure. Pa.R.A.P. 2101 (“Briefs and reproduced records shall

conform in all material respects with the requirements of these rules as

nearly as the circumstances of the particular case will admit, otherwise they

may be suppressed, and, if the defects are in the brief or reproduced record

of the appellant and are substantial, the appeal or other matter may be

quashed or dismissed.”); Wallace, 199 A.3d at 1255 (finding waiver of

issues for failure to comply with rules of appellate procedure).


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      Additionally, we are mindful of the following. “We shall not develop an

argument for an appellant, nor shall we scour the record to find evidence to

support an argument; instead, we will deem [the] issue to be waived.”

Milby v. Pote, 189 A.3d 1065, 1079 (Pa. Super. 2018); see also Linde,

220 A.3d at 1145 (“[T]his Court may not act as counsel for an appellant and

develop arguments on his behalf.”) (citation and internal quotation marks

omitted); Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super.                   2011)

(“[W]here an appellate brief fails to provide any discussion of a claim with

citation to relevant authority or fails to develop the issue in any other

meaningful fashion capable of review, that claim is waived.”) (citation

omitted); Pa.R.A.P. 2119(a) (requiring argument section of brief to be

“followed by such discussion and citation of authorities as are deemed

pertinent”).

      In   his   brief,   Kantor   sets    forth   undeveloped   and   unsupported

arguments relating to his issues on appeal. The argument section for all

seven of the issues Kantor purports to raise spans less than two pages.

Kantor’s Brief at 6-7.

      We first point out the headings dividing Kantor’s argument section

confusingly do not correspond to the order he lists his issues in the

statement of questions section of his brief, and his argument is divided into

six parts, while he purports to raise seven issues. Compare Kantor’s Brief at

3 with id. at 6-7. See Pa.R.A.P. 2119(a) (“The argument shall be divided


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into as many parts as there are questions to be argued[.]”). Because Kantor

fails to address whatsoever his sixth issue relating to a request to reduce the

verdict,   he   has    abandoned      it   and      we   would   find   it   waived.   See

Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992) (“We

must deem an issue abandoned where it has been identified on appeal but

not properly developed in the appellant’s brief.”) (citation omitted).

       At this point, what would remain would be Kantor’s second, third,

fourth, and fifth issues (relating to commercial resale of the equipment at

issue; mitigation of damages; attorney’s fees; and request for a jury trial,

respectively). In the argument section relating to the issue of commercial

resale of the equipment, Kantor asserts that during the bench trial, a BMEF

witness stated that BMEF was “required under the law to mitigate damages

and resell the product in a ‘commercially reasonable manner.’” Kantor’s Brief

at 6. In support of his assertion, Kantor lists, without any discussion

whatsoever, 11 cases that he purportedly presented to the trial court in his

memoranda of law during the bench trial.7 Of the cases listed, two are from

____________________________________________


7 Incorporation by reference is not proper development of an issue raised in
a brief. Our Supreme Court has

       previously held that such “incorporation by reference” is an
       unacceptable manner of appellate advocacy for the proper
       presentation of a claim for relief to our Court. Our rules of
       appellate procedure specifically require a party to set forth in his
       or her brief, in relation to the points of his argument or
       arguments, “discussion and citation of authorities as are deemed
(Footnote Continued Next Page)


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common pleas courts and six are cases from states and a territory outside of

Pennsylvania. Kantor’s Brief at 6. Kantor makes absolutely no attempt to

explain any of the holdings of these cases or how they are relevant to and

support his argument.

      Similarly, in the argument section relating to the issue of mitigation of

damages, the entirety of Kantor’s argument is as follows.

           The witness for the plaintiff admitted that it must mitigate
      damages. (RR 63) It was error of law not to dismiss the action
      based on the plaintiff’s admission. Truserv v Morgan’s Tool &
      Supply Co. 39 A3d 253 (Pa 2012) and Portside v Northern 41
      A3d 1 (Pa Super 2011)

Id. (verbatim). Neither case stands for the proposition Kantor posits, and he

does not provide any explanation as to how the holdings of these cases

relate to or support his argument. Development of an appellate issue before



(Footnote Continued) _______________________

      pertinent,” as well as citations to statutes and opinions of
      appellate courts and “the principle for which they are cited.”
      Pa.R.A.P. 2119(a), (b). Therefore our appellate rules do not
      allow incorporation by reference of arguments contained in briefs
      filed with other tribunals, or briefs attached as appendices, as a
      substitute for the proper presentation of arguments in the body
      of the appellate brief.

Commonwealth v. Briggs, 12 A.3d 291, 342-43 (Pa. 2011) (citations
omitted) (finding Briggs’ claim waived where he incorporated by reference
the argument set forth in a separate brief). “[C]ompliance with these rules
by appellate advocates who have any business before our Court is
mandatory.” Id. at 343. Thus, we would decline to consider Kantor’s
arguments. See id. In any event, our review of the purported memoranda of
law shows Kantor cited three cases in the first filing and no cases in the
second filing. Neither filing contained any discussion of authorities cited.



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this Court requires more than a one-sentence analysis followed by case

citations that are not on point.

      The argument sections relating to the issues of attorney’s fees and a

request for a jury trial fare no better. With respect to attorney’s fees, Kantor

offers three sentences for his entire argument, and fails to cite to the record

or any authority. Id. Regarding the issue of a request for a jury trial,

Kantor’s argument also consists of three sentences and fails to cite to the

record. Id. at 6-7. He cites to a letter brief filed on behalf of the

Commonwealth of Pennsylvania in a criminal case, which argued that the

criminal defendant had voluntarily waived his right to a jury trial where he

signed a written colloquy on the record. Not only is the letter brief not

binding authority, Kantor makes no attempt to argue why that criminal case

is relevant to the instant civil matter. Similarly, the other two cases cited by

Kantor in this argument section are criminal cases and, once again, Kantor

fails to discuss or argue their relevance to his argument. Kantor does not

give any pinpoint citation to where in these cases he wishes to direct our

attention, and our review of these cases does not support Kantor’s issue that

the trial court erred in ordering a bench trial.

      Based on the foregoing, even if Kantor had preserved his claims for

appeal, we would conclude Kantor failed to develop an argument in support




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of these issues in his brief, and waiver would be required.8 Linde, 20 A.3d at

1146 n.11 (finding waiver of issue for appellant’s failure to develop claim in

brief); see also J.J. DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d

402, 411 (Pa. Super. 2012) (finding waiver of undeveloped and unsupported

issue).

       Kantor having failed to preserve any of his issues for appellate review,

we affirm the judgment entered on October 22, 2019, in favor of BMEF and

against Kantor.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/31/20


____________________________________________


8 Even if we reached the merits of these issues, we would conclude, for the
reasons set forth in the trial court’s opinion, that Kantor is not entitled to
relief. See Trial Court Opinion, 9/16/2019, at 5-10 (finding BMEF had no
duty to hold a commercially reasonable sale of the equipment at issue to
mitigate its loss because BMEF never had access to the equipment at issue
and thus could not repossess it, and Kantor had an equal opportunity to
mitigate damages; award of $5,950 in attorney’s fees was reasonable and
supported by testimony at trial and affidavit describing work and hourly rate,
and Agreement explicitly provided BMEF was entitled to attorney’s fees in
the event of Kantor’s default; and Kantor waived his right to a jury trial by
the express language of the Agreement).



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