J-A20017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LANDIS & SETZLER, PC                           IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                     v.

NORMAN AND MARJORIE AAMODT, H/W

                          Appellants               No. 2433 EDA 2013


           Appeal from the Judgment Entered October 31, 2013
             In the Court of Common Pleas of Chester County
                     Civil Division at No(s): 11-14116


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                          FILED AUGUST 22, 2014

      Appellants, Norman Aamodt and Marjorie Aamodt, appeal pro se from

the October 31, 2013 judgment entered in favor of Appellee, Landis &

Setzer, PC, in the amount of $7,519.00 on its breach of contract claim

against Appellants. After careful review, we affirm on the basis of the well-

reasoned November 12, 2013 trial court opinion authored by the Honorable

Robert J. Shenkin.

      We summarize the factual and procedural history of this case as

follows.   Appellants hired attorney David Melman, Esquire (Attorney

Melman) of Appellee law firm, to represent them in an ongoing appeal in the

case of Aamodt v. Levin, 947 A.2d 819 (Pa. Super. 2007) (unpublished
J-A20017-14



memorandum), appeal denied, 959 A.2d 318 (Pa. 2008).1          Appellants also

hired Attorney Melman to represent them in the case on remand from the

appeal to the Court of Common Pleas of Philadelphia County at civil docket

no. 002368 (the Remand Case) regarding the molding of a verdict to

include, inter alia, pretrial interest. Appellants discharged Attorney Melman

prior to the final hearing on molding their verdict in the Remand Case, where

they proceeded pro se.2         A fee dispute then arose between Appellee and

                                                                       ng the

aforementioned appeal.

       Appellee initiated the instant action for unpaid fees before magisterial

district judge, Mark Bruno, who entered a judgment in its favor and against

Appellants in the amount of $6,141.00 on December 2, 2011. Appellee filed

a de novo appeal to the Court of Common Pleas on December 20, 2011. On

June 22, 2012, Appellee filed its complaint for breach of contract against

Appellants. Appellants filed an answer, new matter and counterclaim on July

13, 2012. Appellants alleged it was Appellee who was in breach of contract

____________________________________________
1

represent Appellants in opposing a motion for reconsideration and a petition
for allowance of appeal.
2
  Appellants contend they were compelled to discharge Attorney Melman
because he would not advocate their position as to what should be the
proper commencement date for the calculation of pretrial interest due. The
substance of this difference of opinion is discussed more fully by the trial
court in its November 12, 2013 Rule 1925(a) opinion, which we adopt
herewith.



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for failing to represent their position regarding the molding of the verdict in

the Remand Case

7/13/12, at 3, 5, ¶¶ 12, 31. Appellants also made an averment of emotional

damages. Id. at 5, ¶ 34.

       The case proceeded to compulsory arbitration. On August 13, 2012,

the Arbitrators entered an award in favor of Appellee for $9,411.12 on its



Appellants filed a notice of appeal from the arbitration award on September

11, 2012, and the matter proceeded to a two-day jury trial, commencing

April 15, 2013.       At the conclusion of testimony, the trial court granted

                                                 rdict against Appellants on their

counterclaim. Appellants filed timely post-trial motions, which the trial court

denied on July 24, 2013. Appellants filed a notice of appeal on August 20,

2013.3 Appellants and the trial court have complied with Pennsylvania Rule

of Appellate Procedure 1925.


____________________________________________
3

appeal was premature. See Pa.R.A.P. 301. By per curiam order dated,
October 24, 2013, this Court directed Appellants to praecipe for entry of
judgment with the trial court prothonotary. Appellants complied on October
31, 2013, and judgment was entered. Thus, we now have jurisdiction over
this appeal pursuant to Pa.R.A.P. 905(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
                                                                     ts Ctr.,
Inc., 948 A.2d 834, 842 n. 1 (Pa. Super. 2008) (under Rule 905(a)(5),
subsequent entry of judgment perfected premature appeal), affirmed, 2 A.3d
526 (Pa. 2010).


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J-A20017-14



     On appeal, Appellants raise the following issues for our consideration.

           1.    Whether the [trial] court abused its discretion
           by directing a verdict in favour of [Appellee] and

           motion for non-suit,

                       a.    where the court admitted that a
                 jury could find           breach of contract
                 but [Appellants] did not prove damages,
                 whereas     the  court  would   not    allow

                 to               breach of contract to represent


                 and fair testimony of emotional damages in
                 respect to                 breach of contract to
                 represent [Appellants] in opposition to a
                 petition for a charging lien, and/or where there

                 payment on a contract that was breached,
                 and/or,

                       b.    where      the     court     thwarted

                 testimony admitting fraud, overlooked tolling
                 of the statute of limitations for filing a claim of
                 fraud by                    concealment of fraud
                 until filing the instant claim, and/or

                        c.    where   the   court   demanded
                 [Appellants] close of their case before their
                 exhibits were entered, depriving [Appellants]
                 of this evidence.

           2.    Whether the court abused its discretion by
           instructing the jury as to the evidence as to
                       claim,

                      a.     by    directing the        jury     on
                 computation of the amount              owed     by
                 [Appellants], and/or



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J-A20017-14


                        b.    by allowing [Appellee] to amend its
                  claim in line with the amount the court
                  instructed the jury was owed by [Appellants],
                  and/or

                        c.    by failing to instruct the jury to
                  determine whether [Appellee] breached its
                  contract and as to the applicable law for an
                  award of damages of the amount [Appellants]
                  paid on the contract.

            3.   Whether the jury erred by finding in favour of
                      claim when the evidence before the jury
            showed            breach of contract.

                     -5.

      All




evidentiary proffers relative to those claims.


            not to grant judgment in favor of one of the parties,
            we must consider the evidence, together with all
            favorable inferences drawn therefrom, in the light
            most favorable to the verdict winner.            Our
            standard[s] of review when considering the motions
            for a directed verdict and judgment notwithstanding
            the verdict [JNOV] are identical. We will reverse a

            JNOV] only when we find an abuse of discretion or
            an error of law that controlled the outcome of the
            case.    Further, the standard of review for an
            appellate court is the same as that for a trial court.

                   There are two bases upon which a [directed
            verdict or JNOV] can be entered; one, the movant is
            entitled to judgment as a matter of law and/or two,
            the evidence is such that no two reasonable minds
            could disagree that the outcome should have been

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J-A20017-14


               rendered in favor of the movant. With the first, the
               court reviews the record and concludes that, even
               with all factual inferences decided adverse to the
               movant, the law nonetheless requires a verdict in his
               favor. Whereas with the second, the court reviews
               the evidentiary record and concludes that the
               evidence was such that a verdict for the movant was
               beyond peradventure.

Hall v. Episcopal Long Term Care, 54 A.3d 381, 395 (Pa. Super. 2012),

quoting, Campisi v. Acme Mkts., Inc., 915 A.2d 117, 119 (Pa. Super.

2006), appeal denied, 69 A.3d 243 (Pa. 2013).                      an appellate



trial court abused its discretion; however, where the evidentiary ruling turns

                                                Buckman v. Verazin, 54 A.3d

956, 960 (Pa. Super. 2012) (citation omitted), appeal denied, 77 A.3d 1258

(Pa. 2013).

      Appellants begin their argument by asserting the trial court erred in

determining that they failed to properly plead or prove a case for fraud

within   the    relevant   statute   of   lim




                                                                             or

                  Id. at 19.




court that no claim of fraud was alleged by Appellants against Appellee. The



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J-A20017-14


sections of their answer, referenced by Appellants as asserting a fraud claim,



Answer, New Matter and Counterclaim, 7/13/12, at 3-4, ¶¶ 13, 19, 22, 29;

                           -20. They do not aver any fraud in connection with

the underlying relationship or transactions between the parties with

sufficient particularity required by Pennsylvania Rule of Civil Procedure

1019(b).4

        Appellants additionally assert,                            d have been



Answer, New Matter and Counterclaim, 7/13/12, at 5, ¶ 27. We agree with

the trial court that such damages are not recoverable in the instant action.

              [D]amages for emotional distress are not ordinarily
              allowed in actions for breach of contract. There are
              only two exceptions. The first is where the emotional
              distress accompanies bodily injury.      This usually
              takes the form of an action in tort. The second
              exception occurs where the breach is of such a type
              that serious emotional disturbance is a particularly
              likely result.

____________________________________________
4
    The Rule provides as follows.

              Rule 1019. Contents of pleadings. General and
              Specific Averments



                    (b) Averments of fraud or mistake shall be
              averred with particularity. Malice, intent, knowledge,
              and other conditions of mind may be averred
              generally.


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J-A20017-14


Rittenhouse Regency Affiliates v. Passen, 482 A.2d 1042, 1043 (Pa.

Super. 1984) (citations omitted). Instantly, as discussed by the trial court,

these exceptions do not apply. See Trial Court Opinion, 11/12/13, at 4-5.




characterized as a cause of action for breach of contract or fraud, failed

because Appellants did not establish they were damaged.            Id. at 4-5.



Remand Case, but failed to advocate the position Appellants wished to

advance relative to the commencement date for pre-trial interest in molding

the verdict.

               The Superior Court Order was the law of the case,
               having survived appeal.   The trial court [in the
               Remand Case] violated the case law by failing to
               adhere to the Superior Court order in molding


                     [The trial court in the instant case] committed
               gross error and abused [its] discretion by upholding
               the trial court decision [in the Remand Case] by
               finding it was correct and by upholding it over the
               Superior Court order.




      The trial court sets forth the factual and procedural history of the

Remand Case in its November 12, 2013 opinion and concludes the following.


               determination of the date from which pre-judgment
               interest began to accrue and it is that disagreement


                                       -8-
J-A20017-14


               based upon a wholly flawed understanding of
            the law as well as a convenient failure to
            remember a critical fact   that is at the crux of
            the present litigation.

Trial Court Opinion, 11/12/13, at 2 (emphasis in original).

      We agree.      In remanding the Remand Case for calculation of

prejudgment interest, this Court did not make any determination of the

correct commencement date to be employed, rather we held that the trial



prejudgment and post-                           can be determined with a

reasonable amount of certainty and through an audit to calculate the

                and, therefore, remanded for said calculation.        Aamodt,

supra at 10

of the case as to that determination.   Further, Appellants did not appeal the

                          the Remand Case and the doctrine of collateral

estoppel precludes a relitigation of that judgment in the instant proceeding.


            the second action is upon a different cause of
            action[,] the judgment in the prior suit precludes
            relitigation of issues actually litigated and necessary
            to the outcome of the first action. Modern collateral
            estoppel doctrine no longer requires mutuality; a
            litigant who was not a party to the initial litigation
            may now use collateral estoppel offensively in a new
            suit against the party who lost on the decided issue
            in the initial case.

In Re Stevenson, 40 A.3d 1212, 1222 (Pa. 2012) (internal quotations,

citations, and footnote omitted).


                                     -9-
J-A20017-14


      Appellants, in their final issue, contend the trial court erred in its

                                                   -28.    Essentially, Appellants

merely recast their argument that their counter claim against Appellees for

breach of contract should have been submitted to the jury.                      a

contract will not be heard to accuse the other party of breaching the contract



                                              citing Archer v. State Farm Ins.

Co., 615 A.2d 779, 785 (Pa. Super. 1992), appeal denied, 629 A.2d 1375



proper for the reasons outlined above, there was no occasion for the trial

court to instruct the jury on those claims.

      After careful review of the entire record, we conclude that the trial

                             -reasoned November 12, 2013 Rule 1925(a)



claims, identifies the proper standard of review, discusses the relevant law

and explains the basis for its conclusion that said claims lack merit.

Accordingly, we discern no error or abuse of discretion which could afford

Appellants relief. In as much as the conclusions expressed in said opinion,

regarding Appellants



damages for any alleged breach of contract by Appellee, and the adequacy

                                                          t with ours, we adopt it


                                     - 10 -
J-A20017-14


as our own for purposes of further appellate review.   See Trial Court

Opinion, 11/12/13.

     Judgment affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/22/2014




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