J-A07036-16; J-A07037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ELIZABETH MILLING COMPANY, LLC,           IN THE SUPERIOR COURT OF
SMITHDON, L.P. A PENNSYLVANIA                   PENNSYLVANIA
LIMITED PARTNERSHIP, AND MIKE
ADAMS



                 v.

ROBERT N. ANDREWS AND SANDRA H.
ANDREWS

APPEAL OF: ROBERT N. ANDREWS

                                          No. 599 WDA 2015


                  Appeal from the Order April 2, 2015
          In the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): GD-13-017997


ELIZABETH MILLING COMPANY, LLC,           IN THE SUPERIOR COURT OF
SMITHDON, L.P. A PENNSYLVANIA                   PENNSYLVANIA
LIMITED PARTNERSHIP, AND MIKE
ADAMS



                 v.

ROBERT N. ANDREWS AND SANDRA H.
ANDREWS
               Appellants
                                          No. 622 WDA 2015


                  Appeal from the Order April 2, 2015
          In the Court of Common Pleas of Allegheny County
                 Civil Division at No(s): GD-13-017997
J-A07036-16; J-A07037-16


ELIZABETH MILLING COMPANY, LLC,                IN THE SUPERIOR COURT
SMITHDON, L.P. A PENNSYLVANIA                            OF
LIMITED PARTNERSHIP, AND MIKE                       PENNSYLVANIA
ADAMS

                        Appellant

                   v.

ROBERT N. ANDREWS AND SANDRA H.
ANDREWS

                                                  No. 650 WDA 2015
                                                     651 WDA 2015
                Appeal from the Order Entered April 2, 2015
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD 13-017997

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

MEMORANDUM BY JENKINS, J.:                          FILED JULY 15, 2016

     Following a trial, a jury found Robert Andrews breached an asset

purchase agreement and awarded Elizabeth Milling Company, LLC and Mike

Adams (collectively, together with Smithdon, L.P., “Adams”) $400,000.00.

The jury also found Adams breached a land installment contract, which the

parties had entered at the same time as the asset purchase agreement and

which required Adams to pay monthly installments to Robert and Sandra

Andrews. The trial court ordered the land returned to the Andrews, that the

$167,000.00 held in escrow be delivered to the Andrews, and that Adams

pay an additional $252,983.36 for the sums due under the land installment

contract. The trial court did not award the Andrews counsel fees following




                                    -2-
J-A07036-16; J-A07037-16



the breach of the land installment contract.1 After consideration of various

post-trial motions, the trial court granted Adams a new trial on damages.

Both parties filed notices of appeal. We affirm the order granting a new trial

as to damages and denying the remaining post-trial motions.           We reverse

the order addressing the motion for payment of escrow account funds to

defendants and payment by plaintiffs of all outstanding sums due to

defendant pursuant to the land installment contract to the extent it denied

the request for reasonable attorney fees.        We affirm the order addressing

the motion for payment of all outstanding sums in all other respects. We

will remand to the trial court for proceedings consistent with this opinion.

       The trial court set forth the factual background as follows:

          This case grows out of an asset purchase agreement
          (“APA”) entered into on September 19, 2011 between the
          Plaintiff, Elizabeth Milling Company, [LLC, (a limited
          liability company organized by Plaintiff[] Mike Adams,)]
          and the Defendant, Robert Andrews, the sole proprietor of
          a business operating as Elizabeth Milling Company.
          Elizabeth Milling Company (“EMC”) packages and sells ice
          melt products in bags and buckets for use on sidewalks
          and driveways.      Pursuant to the agreement, Elizabeth
          Milling Company, LLC (“[EMC] LLC”) purchased the assets
          of EMC including goodwill, equipment, and inventory. The
          agreement was signed by Adams as sole member of EMC
          LLC and by Andrews as sole proprietor of EMC. The
          Defendant, Sandra Andrews, did not sign the APA.

          The business of EMC was conducted on two pieces of real
          estate, one in Smithton, PA and one in Donora, PA. The
____________________________________________


1
 The jury also found Adams breached a contract to purchase inventory from
Andrews and awarded $718,985.90 in damages for this breach.



                                           -3-
J-A07036-16; J-A07037-16


          Plaintiff, SmithDon, a limited partnership organized by
          Adams, and Defendants, Robert Andrews and Sandra
          Andrews[,] entered into a real estate installment land
          contract whereby SmithDon agreed to buy and the
          Andrews agreed to sell the Smithton and Donora premises
          for $1,340,000.00 payable over ten years at 6 percent
          interest resulting in payments of $14,000.00 per month.

          Following the closing on the transaction on September 19,
          2011, sales of EMC’s products collapsed for both the 2011-
          2012 and 2012-2013 winter seasons. The parties contest
          the cause of this sales collapse. [Andrews] assert[s] that
          the local area experienced the warmest winter in 40 years
          and the fourth mildest winter on record in 2011-2012
          thereby undermining the need for the purchase of salt
          product by the public.      [Adams] assert[s] that EMC’s
          primary customer ceased making purchases from EMC
          because of the availability of similar product at more
          competitive pricing and superior servicing levels from a
          local competitor. [Adams] asserts that [Andrews] failed to
          disclose the existence of this competitor and/or its
          competitive advantages before the closing on the sale.[2]

Opinion, 7/24/2015, at 2-3 (hereinafter “1925(a) Opinion”).

       Adams filed a complaint against Robert and Sandra Andrews, which

was later amended.        The amended complaint alleged a breach of contract

claim, a fraudulent inducement claim, a rescission claim, a negligent

misrepresentation claim, and a tortious interference claim.          Amended

Complaint at ¶¶ 30-92.          Robert and Sandra Andrews filed counterclaims.

Robert Andrews filed a counterclaim for breach of the APA and a conversion

counterclaim for failure to pay the balance due for the purchase of inventory,

and Sandra and Robert Andrews filed a breach of the land installment
____________________________________________


2
    Adams also alleged Andrews submitted false information on tax returns.




                                           -4-
J-A07036-16; J-A07037-16



contract counterclaim.3 Answer to Amended Complaint and New Matter at

¶¶ 101-142.

        Prior to trial, the trial court granted summary judgment in favor of

Sandra Andrews and dismissed the amended complaint with prejudice as to

her alone.    Order, 1/13/2015.        In addition, the trial court granted Robert

Andrews’      motion     for     summary       judgment   as   to   the    negligent

misrepresentation claim and the tortious interference claim.                 Order,

1/14/2015.     It deferred a ruling as to the rescission claim.      Id.   The trial

court denied summary judgment as to the breach of contract and fraudulent

inducement claims. Id.

        Following a trial, the jury found Andrews breached the full disclosure

provision of Section 4.10 of the APA;4 found Adams suffered damages in the
____________________________________________


3
   Sandra and Robert Andrews also filed actions in ejectment, in
Westmoreland and Washington Counties, to recover possession of the real
estate. Adams filed motions to stay the actions in ejectment. The actions
were stayed, with a condition that Adams pay into an escrow account the
monthly amount due.
4
    Section 4.10 of the APA provides:

           Full Disclosure:       Neither this Agreement, nor any
           schedule, exhibit, list, certificate or other instrument or
           document delivered to Buyer pursuant to this Agreement
           by or on behalf of Seller, contains any untrue statement of
           a material fact or omits to state any material fact required
           to be stated herein or therein or necessary to make the
           statement, representations, or warranties and information
           contained herein or therein not misleading. Seller has not
           withheld from Buyer disclosure of any event, condition, or
           fact which Seller knows, or has reasonable ground to
(Footnote Continued Next Page)


                                           -5-
J-A07036-16; J-A07037-16



amount of $400,000.00 as a result of the breach; and found Andrews did not

intentionally or with reckless indifference make untrue statements of

material fact or omit disclosure of a material fact in order to fraudulently

induce Adams to purchase the business.            The jury further found Adams

breached the land installment contract and breached the contract to

purchase inventory. The jury awarded Andrews $718,985.90 for the breach

of the contract to purchase inventory. As agreed to by the parties, the trial

court issued orders as to the damages resulting from the breach of the land

installment contract. The court ordered the land be returned to Robert and

Sandra Andrews, that money being held in escrow be paid to the Andrews,

and that the additional payments due under the contract be paid to the

Andrews. Order, 3/10/2015; Order, 4/2/2015.

      Adams raises the following issues on appeal:

          A. Whether the court is empowered to mold the verdict to
          add damages for breach of contract to make the record
          accord with the uncontroverted facts and the verdict speak
          the truth[?]

          B. Whether [Adams is] entitled to a new trial based upon
          an erroneous verdict slip and special jury interrogatories[?]

          C. Whether [Adams is] entitled to a new trial on damages
          on grounds that the trial court erred in charging the jury
          on mitigation[?]

                       _______________________
(Footnote Continued)

          know, may materially adversely affect the Purchased
          Assets or the operations of the business.

Plaintiff’s Amended Complaint, at Exh. A., Asset Purchase Agreement at 5.



                                            -6-
J-A07036-16; J-A07037-16


         D. Whether the trial court erred in granting summary
         judgment in favor of defendant Sandra Andrews and
         dismissing her as a defendant with respect to [Adams’]
         claims[?]

         E. Whether the trial court erred in ordering return of
         escrow payments and sums due under the land installment
         [contract] and/or refusing [Adams’] cross motion or
         maintaining the status quo ante pending appeal[?]

Adams’ Appellant Brief at 4 (unnecessary capitalization omitted).

      Andrews raises the following issues on appeal:

         1. Where liability and damages were hotly contested, the
         court made no error of law, fact or discretion at trial and
         there is clear evidence that the jury verdict was a
         compromise which the trial judge failed to analyze, did the
         judge commit an error of law by granting a new trial as to
         damages?

         2. Where there are rational explanations for the jury’s
         calculation of the damages awarded to [Adams], did the
         trial judge commit an error of law by granting a new trial
         as to damages without considering those rational
         explanations?

         3. Where the contract provided for an award of attorney
         fees to the party prevailing in effort to enforce the
         contract, did the judge commit an error of law in refusing
         to award attorney fees to [the Andrews] who prevailed on
         their breach of contract counterclaim.

Andrews’ Appellant Brief at 3.

      A. Damages

      The parties first dispute whether the trial court erred when it ordered a

new trial on the issue of damages and whether the trial court erred in

refusing to mold the verdict.

      Damages in a breach of contract action should place the aggrieved

party “as nearly as possible in the same position [it] would have occupied

                                     -7-
J-A07036-16; J-A07037-16



had there been no breach.” Ely v. Susquehanna Aquacultures, Inc., 130

A.3d 6, 10 (Pa.Super.2015) (quoting Helpin v. Trustees of Univ. of

Pennsylvania, 10 A.3d 267, 270 (Pa.2010)).         An aggrieved party may

recover all damages, provided “(1) they were such as would naturally and

ordinarily result from the breach, or (2) they were reasonably foreseeable

and within the contemplation of the parties at the time they made the

contract, and (3) they can be proved with reasonable certainty.”          Id.

(quoting Helpin, 10 A.3d at 270). Further, “a party who suffers a loss due

to the breach of a contract has the duty to make reasonable efforts to

mitigate his losses.” Portside Investors, L.P. v. N. Ins. Co. of N.Y., 41

A.3d 1, 15 (Pa.Super.2011) (quoting Bafile v. Borough of Muncy, 588

A.2d 462 (Pa.1991)). “The burden to prove this duty to mitigate is placed

on the party who actually breaches the contract; the breaching party must

show how further loss could have been avoided through the reasonable

efforts of the injured party.” Id. (quoting Pontiere v. James Dinert, Inc.,

426 Pa.Super. 576, 627 A.2d 1204 (1993)).

     The trial court provided the following reasoning for granting a new trial

as to damages:

        Following trial, the parties filed post-trial motions.
        [Adams’] principal argument in post[-]trial motions was
        that the jury’s determination that Adams suffered only
        $400,000.00 in damages as a result of Andrews’ breach of
        the APA bore no reasonable relationship to the actual
        damages suffered, and was not supported by the evidence
        presented at trial. [Adams] assert[s] that the jury was
        presented with undisputed evidence that [Adams]
        purchased EMC on September 19, 2011 upon payment of

                                    -8-
J-A07036-16; J-A07037-16


       $400,000.00 “cash” hand money and $2,300,000.00 in
       proceeds from the loan from Dollar Bank and promissory
       note signed by Adams in the amount $200,000.00.
       Additionally, [Adams] incurred additional debt by way of
       $1,000,000.00 line of credit and a $100,000.00 bridge
       loan in order consummate the transaction. All of the debt
       and loans described above were guaranteed and
       collateralized by property owned by Adams.         Adams
       presented testimony which did not appear to be materially
       rebutted by Andrews that nearly all of the above cash and
       debt was expended in an effort to maintain the business.
       As such, [Adams] contends that these monies are proper
       damages as they were lost as a result of Andrews’ breach
       of the APA.

       Specifically, Adams asserted that his actual losses included
       the $400,000.00 hand money paid at closing, the balance
       due on the term loan from Dollar Bank in the amount of
       $2,069,008.00, the line of credit balance in the amount of
       $980,000.00, and the bridge loan in the amount of
       $100,000.00 for a total of $3,540,008.00. These sums
       were asserted as items of direct and consequential loss
       suffered by [Adams]. Additionally, Adams testified that he
       failed to receive his scheduled $180,000.00 per year salary
       from September, 2011 through January, 2015 (Adams did
       receive $98,357.00 in salary during that time frame,
       resulting in a deficiency of $506,643.00). While perhaps
       not directly relevant to his asserted damages, Adams
       presented evidence that he was compelled to withdraw
       from his retirement account in the amount of $317,336.00
       and that when he left his law practice he earned
       approximately $220,000.00 per year. Adding Adams’s
       business financing losses to his lost salary revenue, results
       in a total direct and consequential damages claim in the
       amount of $4,046,651.00.

       The testimony and evidence presented at trial as to these
       issues was materially unchallenged except to the extent
       that Andrews proposed that some of Adams’s losses were
       not a function of Andrews’s breach of the contract, but
       rather Adams’s mismanagement of EMC after Adams
       purchased it, and/or as a natural consequence of
       dramatically warmer winters and its impact upon
       customers’ demand of EMC’s ice melt products. Andrews’s
       arguments in this respect are not lost on the [c]ourt. It is

                                   -9-
J-A07036-16; J-A07037-16


       for this reason that the [c]ourt did not grant [Adams’s]
       Motion to Mold the Verdict to reflect damages in the
       amount of $4,046,651.00. While Adams has established a
       prima facie case for breach of contract damages in that
       amount, Andrews is entitled to a set-off for any diminution
       in value of the business as a result of the then-
       unanticipated unseasonably warm winters of 2011-2012
       and 2012-2013 (if any) and/or consequences of Adams’s
       mismanagement of the business (if any) that the jury
       concludes affected the value of EMC.

       Frankly, I cannot do more than guess as to how the jury
       might calculate, or otherwise arrive at, a quantification of
       diminution in the value of the EMC business with respect to
       these issues. Given the evidence presented at trial many
       different calculations could be made resulting in a great
       many possible final damages awards. In order to sustain
       the jury’s verdict in this case, however, I would have to
       conclude that the jury properly found that Adams’s claimed
       losses of $4,046,651.00 should be reduced by exactly
       $3,646,651.00 – in order to arrive at the $400,000.00
       verdict award that jury did. It is entirely conceivable that
       the jury might have selected that number, $3,646,651.00,
       as a set-off diminution in the value of the business caused
       by natural seasonal fluctuation in sales or Adams’
       mismanagement (if any), just as it might have selected
       any one of many other numbers from $0.00 to
       $4,046,651.00 as an appropriate set-off. But what is
       remarkable, and in my judgment coincidental to the point
       of unacceptable improbability, is that when one subtracts
       $3,646,651.00 from Adams’s claimed $4,046,651.00 in
       damages, to arrive at a damages value of $400,000.00
       one also, coincidentally, arrives at the precise amount of
       money that Adams provided as hand money at the time of
       closing. This personal “cash” contribution at the time of
       closing, standing alone, bears absolutely no reasonable
       relationship to Adams’s actual damages in this case. The
       jury could not have properly arrived at the conclusion that
       Adams’s hand money at closing was the appropriate
       measure of damages yet it appears that is exactly what
       the jury did, and this [c]ourt cannot countenance such a
       suggestion. In order to sustain the jury’s verdict, the
       [c]ourt would have to conclude that the jury determine
       that the actual value of the EMC business was properly


                                  - 10 -
J-A07036-16; J-A07037-16


       reduced because of either unseasonably warm weather
       and/or     by  Adams’    mismanagement      by    exactly
       $3,646,651.00, thereby resulting in a damage award of
       $400,000 - an amount that is, purely coincidentally, the
       identical amount of Adams’ hand money at closing.

       While it is not the prerogative of this [c]ourt to second-
       guess the judgment of a jury, where it is evident to the
       [c]ourt that the jury mistook its responsibility or
       misapplied the law, it is the obligation of this [c]ourt to
       attempt to rectify that error. It is plain to this [c]ourt that
       the jury, while undoubtedly doing its very best to arrive at
       an appropriate damages calculation in a fairly complicated
       business transaction, somehow determined that Adams
       was entitled only to his $400,000.00 hand money payment
       at closing as a result of Andrews’ breach of contract.

       Accordingly, the only reasonable interpretation of the
       jury’s $400,000.00 award is that the jury misapplied the
       law with respect to contract damages and awarded Adams
       only the hand money he delivered to Andrews at closing
       and ignored the other items recoverable by Adams as a
       result of Andrews’ breach of the APA.

       [Andrews] argues that compromise verdicts are a reality of
       litigation and are not only tolerated, but, at times,
       condoned by the [c]ourts. There is, however, in this case,
       no actual evidence or reason to believe that the jury’s
       verdict constituted a “compromise” verdict of any kind.
       We have no insight at all into the thinking of the jury. To
       the extent we can make any guess, we can look only to
       the available evidence presented at trial and observe that
       the jury’s verdict, coincidentally, happens to be identical to
       the amount of hand money paid by Adams at the time of
       closing.    Moreover, while “compromise verdicts” are
       tolerated by the [c]ourt, they are more appropriately
       tolerated only in personal injury claims where damage
       valuations are necessarily less objectively quantifiable. In
       a breach of contract case, it is the obligation of the fact
       finder to make a reasoned assessment of the evidence
       supporting quantifiable damages presented at trial. It is
       evident to the undersigned that such did not occur in this
       case.     As a result, the verdict shocks the court’s
       conscience, and a new trial as to damages is warranted.


                                   - 11 -
J-A07036-16; J-A07037-16



1925(a) Opinion at 5-9.

      We first address Andrews’ claim that the trial court erred in awarding a

new trial for damages.     This Court has stated the following regarding our

standard of review of an order granting a new trial:

         Trial courts have broad discretion to grant or deny a new
         trial.   The grant of a new trial is an effective
         instrumentality for seeking and achieving justice in those
         instances where the original trial, because of taint,
         unfairness or error, produces something other than a just
         and fair result, which, after all, is the primary goal of all
         legal proceedings. Although all new trial orders are subject
         to appellate review, it is well-established law that, absent a
         clear abuse of discretion by the trial court, appellate courts
         must not interfere with the trial court’s authority to grant
         or deny a new trial.

Harmon v. Borah, 756 A.2d 1116, 1121-22 (Pa.Super.2000) (internal

citations and quotation marks omitted).

      Andrews argues that the jury was permitted to reach a compromise

verdict in this case. Andrew’s Appellant Brief at 22-23.

      “Compromise verdicts are verdicts where the fact-finder is in doubt as

to the defendant’s liability vis-à-vis the plaintiff’s actions in a given suit but,

nevertheless, returns a verdict for the plaintiff in a lesser amount than it

would have if it was free from doubt.”         Morin v. Brassington, 871 A.2d

844, 852-53 (Pa.Super.2005).

      Compromise verdicts are most common in personal injury verdicts.

See Morin, 871 A.2d at 853.           Andrews, however, argues compromise

verdicts are also permissible in contract cases. He relies on Morin, which



                                      - 12 -
J-A07036-16; J-A07037-16



applied the compromise verdict law to a contract case.          In Morin, the

parties entered into a contract in which the plaintiff would work for the

defendant at the defendant’s sporting goods store.      871 A.2d at 847.    In

return for managing the store, the defendant would pay the plaintiff when

the defendant retired from his other job.       Id.   The plaintiff alleged the

defendant breached the contract because he failed to pay him. Id. The trial

court found the defendant breached the contract, but did not award all

damages sought. Id. at 847-48. The plaintiff alleged he worked 40 hours a

week for 52 weeks a year, for 11 years, with no time off. Id. at 852. The

trial court awarded damages for 30 hours per week, for 48 weeks per year.

Id. This Court affirmed the verdict, stating:

         The trial court was able to ascertain the fact of damages
         from the evidence presented in this case but not the exact
         amount of damages. It was certain from the evidence
         presented at trial that Morin used a substantial portion of
         his time working at Brassington’s store throughout the
         11[-]year period. However, given the nature of their work
         relationship, Morin’s work hours were not supervised or
         recorded in a typical fashion, and, consequently, they were
         not susceptible of being proven with any degree of
         exactitude. Therefore, drawing reasonable inferences from
         the evidence presented, the trial court arrived at an
         intelligent estimate of the damages suffered by Morin as a
         result of Brassington’s breach of the oral contract. This
         action was proper, inasmuch as the trial court could not
         fully credit the testimony of Morin, who claimed that he
         worked continuously for Brassington for 11 years without
         time off. See, e.g., J.W.S. Delavau, Inc. [v. Eastern
         Am. Trans. & Warehousing, Inc.], 810 A.2d [672,] 685-
         86 [Pa.Super.2002]; see also [Frank Burns, Inc. v.]
         Interdigital Comm. Corp., 704 A.2d [678,] 682
         [Pa.Super.1997]; see generally Spang & Co. v. U.S.
         Steel Corp., []545 A.2d 861 ([Pa.]1988) (discussing

                                    - 13 -
J-A07036-16; J-A07037-16


        broad discretion of trial court to fashion fair estimate of
        damages in contract cases where specific amount of
        damages cannot be determined accurately). Thus, we are
        satisfied that the trial court did not abuse its discretion.

Morin, 871 A.2d at 853 (emphasis deleted).

     Andrews also relies on Campana v. Alpha Broad. Co., 361 A.2d 708

(Pa.Super.1976) and O’Neill v. Atlas Auto Fin. Corp., 11 A.2d 782, 783

(Pa.Super.1940).    Campana upheld a compromise verdict where the

appellant breached an employment contract and the jury awarded the

appellee half the amount he requested. 361 A.2d at 710. The court ruled

that the verdict was not unreasonably low and also noted that the appellant,

not the appellee, challenged the amount.      Id.   The court also noted that

whether appellee could have earned more money, i.e., done more to

mitigate his damages, was in dispute.       Id.   Similarly, O’Neill involved a

contract for professional services where this Court found the jury properly

reached a compromise verdict, reasoning:

        An examination of the record discloses a number of
        conflicts in the evidence bearing upon these issues, but it
        also discloses that plaintiffs adduced sufficient competent
        evidence to take each issue to the jury. They were
        submitted in a manner concerning which no complaint is
        made in the assignments. The verdict was evidently a
        compromise over the inclusion or rejection of certain items
        claimed by plaintiffs and the reasonableness of some of
        their charges, but the matters at issue were exclusively for
        determination by the jury. We find no error upon this
        record which would justify the granting of a new trial with
        respect to these items.

O’Neill, 11 A.2d at 783.




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      This Court recently issued a decision in Ely v. Susquehanna

Aquacultures, Inc., 130 A.3d 6 (Pa.Super.2015).            In Ely, the plaintiff

signed a two-year employment contract with the defendant to serve as the

defendant’s vice president. Id. at 9. The defendant terminated the plaintiff

mid-contract, and paid no further wages or benefits. Id. The jury found the

defendant breached the employment contract and found the plaintiff

mitigated his damages, but awarded less than the amount of wages minus

the mitigation.   Id. at 10.     This Court upheld the compromise verdict,

reasoning:

         [The plaintiff] argues that [the defendants] did not offer
         evidence to contradict his $79,539.83 in alleged damages.
         Therefore, according to [the plaintiff], the jury was
         required to award that amount upon finding [the
         defendant] in breach of the employment contract. [The
         plaintiff] argues the lesser amount does not put him in the
         position he would have been in absent the breach, in
         accordance with Helpin. Given the state of the record,
         however, we cannot conclude the jury’s compromise
         verdict constitutes an injustice that “stands forth like a
         beacon.” Frank Burns, Inc., 704 A.2d at 682. Isolano
         described several significant and costly mistakes that
         occurred at [the defendant] under [the plaintiff’s]
         management. Possibly, the jury issued a compromise
         verdict based on its belief that [the plaintiff’s] mistakes did
         not warrant termination but did warrant a lesser damages
         award in his favor. Compromise verdicts, as we noted
         above, are favored in the law. We discern no basis for
         disturbing the jury’s verdict in this case.

Id. at 13.

      Unlike Ely and the cases relied on by Andrews, which involved services

performed or employment contracts, here the contract in dispute was for the



                                     - 15 -
J-A07036-16; J-A07037-16



purchase of a business. In the cases relied on, there was a dispute about

the services performed, or the hours worked. Here, the jury found Appellee

breached the APA by breaching the full disclosure provision.        This caused

Adams to purchase a business he would not have purchased, or to purchase

a business for more money than he would have paid if the breach had not

occurred.

      Further, unlike the cases relied on by Andrews, here there is no

quantifiable explanation for the jury’s verdict. The jury properly could have

concluded that Adams would have purchased the company, for a lesser

price, even if he had known the information Andrews failed to disclose. The

jury could have determined that any damages amount should have been

reduced based on evidence of the unseasonably warm winters or Adams’

alleged mismanagement. In addition, the jury was not required to award all

alleged consequential damages.       The “compromise” reached by the jury,

however, was not based on any damages evidence presented.            Rather, as

the trial court explained, it is “coincidential to the point of unacceptable

improbability” that the jury used the evidence presented to determine that

Adams would have suffered $400,000.00 in damages, which also equals the

amount Adams paid in cash at the time of closing.          It is not possible to

reconcile the damages evidence presented with the jury’s $400,000.00

damages award. Applying the abuse of discretion standard applied to orders

granting a new trial, we find the trial court acted within its discretion and did

not err in granting a new trial as to damages.

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      Adams argues that, rather than granting a new trial as to damages,

the   trial   court   should   have   molded    the   verdict   and   awarded   the

$4,046,651.00 in damages sought by him.

      A trial judge has the power to mold a verdict. Krock v. Chroust, 478

A.2d 1376, 1380 (Pa.Super.1984) (citing Fish v. Gosnell, 463 A.2d 1042

(Pa.Super.1983)). The power, however, is limited:

          [T]he verdict to be molded must manifest a clear intent on
          the part of the jury. Where the intention of the jury is far
          from obvious, the verdict should be returned to the jury for
          further deliberations or a new trial should be granted.
          House of Pasta, Inc. v. Mayo, []449 A.2d 697, 701
          ([Pa.Super.]1982). “The power to mold or more precisely
          amend a jury’s verdict is merely a power to ‘make the
          record accord with the facts, or to cause the verdict to
          speak the truth.’” Id. quoting Standard Pennsylvania
          Practice (Rev.Ed.) Ch. 27, § 72. If the trial judge must
          assume facts which cannot be discerned from the verdict,
          then the verdict should not be molded. May v. Pittsburgh
          Railways Co., [] 224 A.2d 770, 772 ([Pa.Super.]1966).

Id.

      Here, Adams presented evidence to support a damage calculation that

would place him in the position he occupied before entering the contract.

However, the jury could have determined that Adams would have entered

the contract, but paid less for the business, or could have reduced the

damages award based on the unseasonably warm weather or the alleged

mismanagement. Further, the jury was not required to believe that Adams

suffered all the consequential damages he claimed resulted from the breach.




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The trial court, therefore, did not have sufficient facts to determine what the

jury decided, and did not abuse its discretion in refusing to mold the verdict.

      B. Verdict Slip and Interrogatories

      Adams alleges the trial court should have awarded a new trial because

the verdict slip and jury special interrogatories were erroneous.        Adams’

Appellant Brief at 30-32.

      The parties disagreed about whether the rescission jury instruction

should only include rescission for fraud, or whether rescission was also

proper if the jury found a breach of contract occurred.         The trial court

issued the following instruction as to rescission, which provided that

rescission was proper if the jury found fraud or found the party was

mistaken as to a material fact that induced him to enter the contract:

         [R]escission of a contract means that one party has a right
         to undo a contract and to seek to put the parties in the
         position they occupied before the contract was created. A
         party is permitted to rescind a contract if the party seeking
         rescission was mistaken as to an essential fact that
         induced that party to contract and the other party knew or
         had reason to know that the first party was so mistaken;
         or the party seeking rescission was induced to enter the
         contract by the fraud of the other party, provided the fraud
         was to a material part of the contract; or the party seeking
         rescission relied on a material misrepresentation by the
         other party, even if the misrepresentating party was
         ignorant as to the truth or falsity of the representation.

N.T., 1/26/2015, at 1140. The verdict slip submitted to the jury, however,

only asked whether the contract should be rescinded if the jury found a




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fraudulent inducement occurred.5               If the jury did not find Andrews

fraudulently induced Adams to enter the contract, then the verdict slip

instructed the jury to skip the rescission question. Neither party objected to

the structure of the verdict slip.6 Because he failed to object to the verdict

slip submitted to the jury, Adams waived his challenge to the verdict slip.

See Pa.R.C.P. 227.1(b)(1) and (2) (issues are waived for purposes of post-

trial relief unless the issue was specifically raised during pre-trial or trial

proceedings).

       C. Mitigation Jury Instructions

       Adams next claims the trial court erred when it issued the mitigation of

damages jury instruction. Adams’ Appellant Brief at 32-33.

       This Court applies the following standards to review jury instructions:

          In examining jury instructions, our scope of review is
          limited to determining whether the trial court committed a
          clear abuse of discretion or error of law controlling the
          outcome of the case. Error in a charge is sufficient ground
          for a new trial if the charge as a whole is inadequate or not
          clear or has a tendency to mislead or confuse rather than
____________________________________________


5
  Following the verdict slip question related to fraudulent inducement, No. 3,
the verdict slip stated, “If you answered Question 3 ‘yes,’ go to Question 4;
otherwise go to question 7.” The question regarding rescission was question
5.
6
  During deliberations, the jury asked the following questions: “If we vote
breach of contract, what happens next to the contract?” and “Does it make
it null and void?”      Following discussion with counsel, the trial court
responded: “You should follow the [c]ourt’s instructions and read and follow
the instructions on the verdict slip.” N.T., 1/26/2015, at 1166-68.




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         clarify a material issue. Error will be found where the jury
         was probably [misled] by what the trial judge charged or
         where there was an omission in the charge. A charge will
         be found adequate unless the issues are not made clear to
         the jury or the jury was palpably misled by what the trial
         judge said or unless there is an omission in the charge
         which amounts to a fundamental error. In reviewing a trial
         court’s charge to the jury[,] we must look to the charge in
         its entirety. Because this is a question of law, this Court’s
         review is plenary.

Passerello v. Grumbine, 87 A.3d 285, 296-97 (Pa.2014) (quoting Quinby

v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069–70

(Pa.2006)).

      During the jury instructions, the trial court read the following jury

instruction regarding mitigation:

         In this case, [Adams] had the sole opportunity to guide
         and manage Elizabeth Milling Company at all times
         subsequent to September 19, 2011. If you find that
         []Andrews breached the agreement for asset purchase but
         that the value of the company has declined due solely to
         mismanagement on the part of [] Adams, you may reduce
         [Adams’] damages accordingly.

N.T., 1/26/2015, at 1142-43.        During the charging conference, the trial

court stated that it was not its practice to include argument in its jury

instructions.   The court, however, included the first line of the instruction,

i.e., “[i]n this case, the plaintiff, []Adams, had the sole opportunity to guide

and manage       Elizabeth Milling Company at all times subsequent to

September 19, 2011,” which Adams claims was argument.            In its 1925(a)

opinion, the trial court noted that it was not its usual practice to include the

language contained in the first line, and it believed it inadvertently did so



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here.    1925(a) Opinion, at 11.    The trial court, however, noted that the

sentence, even if argumentative, was “in all material respects factually

unrebutted by [Adams].”     Id.    The trial court found no prejudice or harm

occurred by stating the sentence to the jury.      This was not an abuse of

discretion.

        D. Grant of Summary Judgment for Sandra Andrews

        Adams next argues the trial court erred when it granted Sandra

Andrews’ motion for summary judgment. Adams’ Appellant Brief at 33-35.

        When reviewing an order granting or denying summary judgment, this

Court “may disturb the order of the trial court only where it is established

that the court committed an error of law or abused its discretion.” Murphy

v. Duquense Univ. of the Holy Ghost, 777 A.2d 418, 429 (Pa.2001)

(quoting Capek v. Devito, 767 A.2d 1047, 1048, n. 1 (Pa.2001)). Further,

          In evaluating the trial court’s decision to enter summary
          judgment, we focus on the legal standard articulated in the
          summary judgment rule. Pa.R.C.P. 1035.2. The rule states
          that where there is no genuine issue of material fact and
          the moving party is entitled to relief as a matter of law,
          summary judgment may be entered. Where the non-
          moving party bears the burden of proof on an issue, he
          may not merely rely on his pleadings or answers in order
          to survive summary judgment. “Failure of a non-moving
          party to adduce sufficient evidence on an issue essential to
          his case and on which it bears the burden of proof . . .
          establishes the entitlement of the moving party to
          judgment as a matter of law.” Young v. PennDOT, []
          744 A.2d 1276, 1277 ([Pa.]2000). Lastly, we will view the
          record in the light most favorable to the non-moving party,
          and all doubts as to the existence of a genuine issue of
          material fact must be resolved against the moving party.



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J-A07036-16; J-A07037-16


        Pennsylvania State University v. County of Centre, []
        615 A.2d 303, 304 ([Pa.]1992).

Murphy, 777 A.2d at 429.

     Adams argues that Sandra and Robert Andrews were partners by

operation of law based on their marriage and that Sandra is not insulated

from liability because the business was a sole proprietorship.           Adams’

Appellant Brief at 34.   Adams notes that Sandra was required to sign the

Land Installment Contract, the Memorandum, and a marital waiver related to

two documents. Id.

     The trial court stated:

        [Adams] argue[s] that because EMC was a sole
        proprietorship as opposed to a corporation, Sandra
        Andrews’s mere spousal legal interest, an undivided 50
        percent ownership interest in the company, somehow
        supports a cause of action against Ms. Andrews. [Adams],
        himself, points out in his post-trial brief that Sandra
        Andrews signed only four documents, the land installment
        contract, the memorandum, and two marital waivers
        related to the bill of sale for inventory and the bill of sale
        and assignment. There has been no argument advanced
        that Ms. Andrews breached any terms or conditions of any
        of these documents and there is no evidence that Ms.
        Andrews made any other affirmative claims or
        representations upon which any theory of breach of
        contract or misrepresentation could be advanced. For
        these reasons, the grant of summary judgment in favor of
        Ms. Andrews was appropriate.

1925(a) Opinion at 11-12.

     There is no evidence Ms. Andrews participated in the alleged failure to

disclose, made any misrepresentation, or committed any other breach of




                                    - 22 -
J-A07036-16; J-A07037-16



contract. The trial court did not err in granting Sandra Andrews’s summary

judgment motion.

     E. Return of Escrow Payments and Sums Due Under the Land
     Installment Contract

     Adams claims that, because the jury found Andrews breached the APA,

Adams was entitled to all consequential losses as a result of that breach,

including money spent on the land installment contract. Adams’ Appellant

Brief, at 36. He maintains the APA and the land installment contract were

not separable. Id.

     The trial court found:

        [Adams] assert[s] that the [c]ourt erred in granting
        release of escrow funds and that the trial court erred in
        ordering payments of sums due under the land installment
        contract, which [Adams] now assert[s] is void, ab initio,
        given the jury’s finding of [Andrews’] breach. [Adams’]
        agreement with [Andrews] pursuant to the land
        installment contract was an independent contractual
        obligation outside the scope of the APA. [Adams] did not
        present evidence materially challenging the [Andrew’s]
        position that [Adams] was in breach of the land installment
        contract, as [Adams] could not do so. [Adams] did not
        make payments due under the land installment contract,
        and was thereby in breach of the contract. Execution on
        the property subject to the land installment contract was
        stalled only as a result of the [c]ourt ordered stay entered
        in light of the pendency of the contract claims between the
        parties related to the APA. The jury’s findings with respect
        to the APA might, possibly, have impacted the appropriate
        resolution of the land installment contract claims then
        pending. For instance, moneys owed under the land
        installment contract, may very well have been properly
        awarded by the jury as consequential damages associated
        with [Andrews’] breach of the APA.



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J-A07036-16; J-A07037-16


         At the close of the trial, however, there can be no question
         that the jury found that [Adams] was in breach of the land
         installment contract and that the amounts due under the
         contract exceeded the available escrow funds. There is no
         legal basis to deny [Andrews] payments of the escrow
         moneys that are available in partial satisfaction of the jury
         verdict award in his favor with respect to the land
         installment contract. As noted in this Court's Order, if
         Plaintiff succeeds in obtaining a subsequent damages trial,
         Plaintiff may very well assert these obligations as
         consequential damages flowing from Defendant's breach of
         the APA, but the instant finding of liability under the land
         installment contract, and the release of the available
         escrow funds is entirely warranted.

1925(a) Opinion at 12-13.

      The land installment contract is a separate contract, which does not

mention the asset purchase agreement.          Further, the land installment

contract states that “[t]his Contract contains the entire agreement and

understanding among the parties with respect to the sale of the Real Estate

and supersedes any and all prior oral or written agreements among the

parties.” Amended Complaint at Exh. B, at 10. The trial court did not err in

awarding Andrews the escrow payments and additional payments due under

the land installment contract.




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J-A07036-16; J-A07037-16



      F. Attorney Fees

      Robert and Sandra Andrews argue the trial court erred when it did not

award counsel fees related to Adams’ breach of the land installment

contract. Andrews’ Appellant Brief at 54-56.

      Section 14(a) of the land installment contract provides: “Each party is

entitled to recover its reasonable attorney fees, costs, and expenses incurred

by reason of enforcing any right hereunder, including the expenses of

preparing any notice of delinquency, whether or not any legal action is

instituted.” Amended Compliant, at Exh. B, Land Installment Contract at 9.

      Andrews maintains the trial court did not have the discretion to refuse

the award of attorney fees. Andrews’ Appellant’s Brief at 54-56. The trial

court did not address this issue in its 1925(a) opinion.    The attorney fees

provision of the land installment contract states a party “is entitled,” to its

reasonable attorney fees and is not discretionary. See McMullen v. Kutz,

985 A.2d 769, 775 (Pa.2009) (finding each party responsible for their own

attorney fees unless “unless there is express statutory authorization, a clear

agreement of the parties or some other established exception” and finding

language stating a breaching party “shall” be responsible for the payment of

fees expressed a clear agreement of the parties). Because Adams breached

the agreement, the trial court erred in failing to award Andrews his

reasonable attorney fees associated with enforcing the land installment

contract.




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     Order granting a new trial as to damages and denying all other post-

trial motions affirmed. Order addressing the motion for payment of escrow

account funds to defendants and payment by plaintiffs of all outstanding

sums due to defendant pursuant to the land installment contract reversed to

the extent it denied the request for reasonable attorney fee.    The order

addressing the motion for payment of all outstanding sums due affirmed in

all other respects. Case remanded. Jurisdiction relinquished.

     Judge Mundy joins the memorandum.

     Judge Bowes files a concurring/dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/15/2016




                                   - 26 -
