J-A31034-15


                                  2016 PA Super 18

THE PRINTED IMAGE OF YORK, INC.,                     IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellant

                       v.

MIFFLIN PRESS, LTD., D/B/A THE
PRINTED IMAGE OF YORK, LLC, PAMELA
A. KERR AND JOHN CONWAY,

                            Appellees                    No. 693 MDA 2015


               Appeal from the Judgment Entered March 24, 2015
                 in the Court of Common Pleas of York County
                     Civil Division at No.: 2010-SU-2355-01


BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

OPINION BY PLATT, J.:                                 FILED JANUARY 29, 2016

        Appellant, The Printed Image of York, Inc., appeals from the trial

court’s order entering judgment in favor of Appellees, Mifflin Press, Ltd.,

d/b/a The Printed Image of York, LLC, Pamela A. Kerr, and John Conway, in

accordance with its entry of a nonsuit in favor of Appellees in this breach of

contract case. We affirm.

        We take the relevant facts and procedural history from the trial court’s

May 29, 2015 opinion and our independent review of the record. On May

10, 2010, Appellant filed a complaint against Appellees, alleging breach of

the parties’ July 25, 2006 contract, pursuant to which Appellant sold Mifflin
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A31034-15



Press Ltd. a printing business known as “The Printed Image of York.” 1

Pursuant to the contract, Appellees made an initial payment of $1,500.00 at

closing.   Appellees were also required to make payments referred to as

“commission” payments over a three-year period, consisting of a certain

percentage of monthly gross sales, if the sales were generated from

Appellant’s existing customer base.2 If a customer overlapped between the

parties, Appellees would pay a commission only if the sale pertained to

existing work that Appellant had already performed for that customer.

       At the September 2014 jury trial, John Conway testified that Appellees

made four commission payments to Appellant, in the amounts of $356.71,

$776.18, $510.03, and $1,033.55, with the last payment made in January

2007. (See N.T. Trial, 9/11/14, at 130, 132-34).3      Appellant deemed the

documentation Appellees provided during discovery regarding commission

payments unusable to calculate damages because it was heavily redacted.4
____________________________________________


1
  Appellees John Conway and Pamela A. Kerr own Mifflin Press Ltd. Richard
Prosser owns Appellant, The Printed Image of York, Inc.
2
 Specifically, a 10% rate was to be paid for the first twelve-month period,
and then decrease to 7.5% and 5%, respectively, for each twelve-month
period thereafter. (See Plaintiff’s Exhibit 1, Agreement of Sale, 7/25/06, at
unnumbered page 1 ¶ 2).
3
  Richard Prosser testified that Appellees made only two commission
payments. (See N.T. Trial, 9/11/14, at 177-79).
4
  This revenue sales report was admitted into evidence as Plaintiff’s Exhibit
4. (See N.T. Trial, 9/11/14, at 114, 148, 227). The cover letter states that
customer names that are not relevant had been redacted. (See Plaintiff’s
(Footnote Continued Next Page)


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J-A31034-15



Mr. Prosser prepared calculations based on Appellant’s own sales in the

three-year period preceding execution of the contract, which had steadily

declined. Mr. Prosser calculated commissions based on all sales during that

time-period, and he provided no testimony regarding how to determine

which customers overlapped with Appellees’ customers.            At the close of

Appellant’s case, Appellees moved for a nonsuit based on their belief that

Appellant failed to prove damages.

      On September 15, 2014, the court entered an order granting a nonsuit

in favor of all Appellees and stated its finding that Appellant failed to

establish a right to relief based on the lack of evidence of specific damages.

(See Order, 9/15/14, at 1-2).           On September 22, 2014, Appellant filed a

timely motion for post-trial relief in accordance with Pennsylvania Rule of

Civil Procedure 227.1(c)(1), requesting removal of the nonsuit.        The court

ordered submission of briefs, and the parties filed briefs in March of 2015,

following transcription of the trial record.      On March 24, 2015, the court

issued its order entering judgment in favor of Appellees in accordance with

its previous order granting the nonsuit. (See Order, 3/24/15). The court

also stated that it no longer had jurisdiction in this matter because it failed

to rule upon Appellant’s motion for post-trial relief within 120 days. (See
                       _______________________
(Footnote Continued)

Exhibit 4, 6/20/11, at unnumbered page 1). Although Appellant considered
the document unreliable due to the redactions, it did not seek an un-
redacted copy prior to trial. (See N.T. Trial, 9/11/14, at 159-63, 167-68,
187-88, 204).



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J-A31034-15



id.); see also Pa.R.C.P. 227.4(1)(b).5 On April 20, 2015, Appellant filed a

timely notice of appeal.6

____________________________________________


5
    Rule 227.4 provides in pertinent part:

        [T]he prothonotary shall, upon praecipe of a party:

        (1) enter judgment upon a nonsuit by the court . . . if

                                       *       *   *

        (b) one or more timely post-trial motions are filed and the court
        does not enter an order disposing of all motions within one
        hundred twenty days after the filing of the first motion. A
        judgment entered pursuant to this subparagraph shall be final as
        to all parties and all issues and shall not be subject to
        reconsideration[.]

Pa.R.C.P. 227.4(1)(b).

      Thus, Rule 227.4 authorizes the prothonotary, upon praecipe of a
party, to enter judgment upon a nonsuit by the court where the court fails
to dispose of post-trial motions within 120 days, and provides that such
judgment is final. See id. However, in the instant case, no party filed a
praecipe for judgment on the nonsuit; therefore, the court was not deprived
of jurisdiction to rule on the post-trial motion.     See id., explanatory
comment—1995 (stating that filing of praecipe for judgment is optional, that
parties may await decision of trial court, and that “[t]he rule does not
provide an automatic limit upon the time in which the court may make its
ruling [but rather] provide[s] a time standard by which the parties and the
court may proceed.”).
6
   Appellees claim that this appeal is untimely because Appellant filed its
notice of appeal more than thirty days after the court issued its order
entering the nonsuit. (See Appellees’ Brief, at 3-6). However, “[u]nder our
Appellate Rules, an appeal in a civil case in which post-trial motions are filed
lies from the entry of judgment.” Billig v. Skvarla, 853 A.2d 1042, 1048
(Pa. Super. 2004) (citations omitted). Because Appellant filed its notice of
appeal within thirty days of entry of judgment, this appeal is timely. See
id.; see also Pa.R.A.P. 903(a).



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J-A31034-15



      Appellant filed a timely concise statement of errors complained of on

appeal on May 15, 2015, pursuant to the trial court’s order. See Pa.R.A.P.

1925(b).   The trial court filed an opinion on May 29, 2015, in which it

discussed the merits of Appellant’s post-trial motion.            See Pa.R.A.P.

1925(a).

      Appellant raises two issues for our review:

      I. Did the trial court err in its March 24, 2015 order finding it
      lacked jurisdiction to rule upon [Appellant’s] motion for post-trial
      relief and directing judgment in favor of [Appellees]?

      II. Did the trial court err in its September 15, 2014 order
      entering compulsory non-suit as to all [Appellees] and its
      subsequent denial of [Appellant’s] post-trial motion to remove
      the non-suit?

(Appellant’s Brief, at 5) (unnecessary capitalization omitted).

      Appellant first argues that the trial court erred in finding that it no

longer had jurisdiction to rule upon Appellant’s motion for post-trial relief

because it did not dispose of the motion within 120 days. (See Appellant’s

Brief, at 13-15). Appellant further asserts that the trial court was required

to file an opinion addressing the merits of the post-trial motion, and to

“suggest what relief it would have granted” if it had ruled on the motion on

the merits. (Id. at 16). Appellant posits that this Court should remand this

case to the trial court for disposition of the post-trial motion and preparation

of an opinion on the merits. (See id.). This issue is moot.

      An issue before a court is moot “when a determination is sought on a

matter which, when rendered, cannot have any practical effect on the


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J-A31034-15



existing controversy.”   Commonwealth v. Nava, 966 A.2d 630, 633 (Pa.

Super. 2009) (citation omitted).

      Here, the record reflects that the trial court granted Appellees’ motion

for a nonsuit based on its determination that Appellant failed to establish a

right to relief because it failed to present evidence of specific damages.

(See Order, 9/15/14, at 1-2).      After Appellant filed its post-trial motion

seeking removal of the nonsuit and the parties submitted briefs addressing

the issue, the court entered judgment in favor of Appellees in accordance

with its previous order granting the nonsuit. Although the court mistakenly

stated that it lacked jurisdiction to rule on the post-trial motion because it

failed to dispose of it within 120 days, the court’s Rule 1925(a) opinion

makes clear that it: reviewed the briefs filed by the parties on the post-trial

motion; and would have denied the motion on the merits because

“[Appellant] did not produce sufficient evidence for a jury to base a damages

award” and consequently, “a jury could only speculate on what damages

should be awarded.” (Trial Court Opinion, 5/29/15, at unnumbered pages 3,

5; see id. at unnumbered page 2).        Thus, remand to the trial court for

disposition of Appellant’s post-trial motion and preparation of an opinion on

the merits would be cumulative and serve no practical purpose. Accordingly,

Appellant’s first issue is moot.

      In Appellant’s second issue, it argues that the trial court erred in

entering the nonsuit because, contrary to the court’s finding, it did present

sufficient evidence of damages.      (See Appellant’s Brief, at 16-23).     In

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J-A31034-15



support, Appellant points to: Plaintiff’s Exhibit 4, the redacted sales report

provided by Appellees; and to the documentation prepared by Mr. Prosser

showing Appellant’s history of sales in the three fiscal years preceding the

parties’ July 2006 agreement. (See id. at 19-23). This issue does not merit

relief.

          Our standard of review is well-established: A nonsuit is proper
          only if the jury, viewing the evidence and all reasonable
          inferences arising from it in the light most favorable to the
          plaintiff, could not reasonably conclude that the elements of the
          cause of action had been established. Furthermore, all conflicts
          in the evidence must be resolved in the plaintiff’s favor. In
          reviewing the evidence presented we must keep in mind that a
          jury may not be permitted to reach a verdict based on mere
          conjecture or speculation. We will reverse only if the trial court
          abused its discretion or made an error of law.

Gillard v. Martin, 13 A.3d 482, 486-87 (Pa. Super. 2010) (citations and

quotation marks omitted).

          “[A] party seeking damages for breach of contract must be able to

prove such damages with reasonable certainty.” Logan v. Mirror Printing

Co. of Altoona, 600 A.2d 225, 227 (Pa. Super. 1991) (citations and internal

quotation marks omitted).

          [D]amages in a breach of contract action must be proved with
          reasonable certainty. Otherwise, they are generally not
          recoverable. Spang & Co. v. U.S. Steel Corp., . . . 545 A.2d
          861, 866 ([Pa.] 1988) (“As a general rule, damages are not
          recoverable if they are too speculative, vague or contingent and
          are not recoverable for loss beyond an amount that the evidence
          permits to be established with reasonable certainty.”). The
          question of whether damages are speculative has nothing to do
          with the difficulty in calculating the amount, but deals with the
          more basic question of whether there are identifiable damages.



                                        -7-
J-A31034-15



Newman Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc.,

98 A.3d 645, 661 (Pa. Super. 2014), appeal denied, 117 A.3d 1281 (Pa.

2015) (some quotation marks and most citations omitted).

      Here, the trial court determined that, based on the evidence presented

at trial, the jury could only speculate as to what damages, if any, should be

awarded. (See Trial Ct. Op., at unnumbered page 5). After review of the

record, we agree.

      Specifically, Mr. Prosser testified as follows regarding Plaintiff’s Exhibit

4:
      Q. Do you find this document generally reliable?

      A. No.

      Q. Can you determine what your damages are from that
      document?

      A. No.

                                   *    *    *

      Q. How many times did you tell Mr. Conway that that document
      was unreliable?

      A. Zero.

      Q. In fact, the first time Mr. Conway learned that you believe it
      was unreliable was when you’re sitting here testifying; correct?

      A. Correct. . . .

(N.T. Trial, 9/11/14, at 188, 204).

      Mr. Prosser explained that “[b]ecause the information supplied was

deemed unreliable to me, [] I took the history of my sales for the previous



                                       -8-
J-A31034-15



three years to the sale [to Appellees] and printed it out by year to come up

with some kind of idea of the amount of business or damages that should be

involved in this.”   (Id. at 190).       He also acknowledged that, during these

three years, his sales steadily declined, and that if Appellees had not

purchased the business, he would have closed it in July of 2006. (See id. at

210, 215).

      With respect to identifying the parties’ overlapping customers, Mr.

Prosser testified:

      Q. Was there ever a time when you and Mr. Conway sat down
      and figured out what kind of duplicate customers you might have
      had?

      A. No.

      Q. Did you hear the testimony earlier this afternoon where [Mr.
      Conway] indicated [fifty] percent of the customers that you had
      turned over were also his?

      A. Yes.

      Q. But you’re saying you and he never had that discussion?

      A. No.

                                     *     *    *

      Q. . . . And sitting here today, you don’t know how many
      customers overlap, do you?

      A. Correct.

                                     *     *    *

      Q. And you have no way of knowing what customers of Mifflin
      Press overlap with Printed Image of York, do you?


                                          -9-
J-A31034-15


      A. No.

(Id. at 189-90, 206, 208).

      After hearing the testimony on damages, the court entered the nonsuit

based on its assessment that:

      [Appellant’s] calculation based on all sales for the three years
      before the contract would not assist the jury in determining the
      damages issue. There was no way of knowing which were
      [Appellant’s] pre-existing customers, or if there were
      overlapping customers, which sales were nevertheless
      attributable to [Appellant].     Therefore, the jury could not
      determine what, if any, commissions were still due.          The
      testimony did not establish a measure of damages with sufficient
      certainty and provide the jury a framework to decide the issue.

(Trial Ct. Op., at unnumbered page 5).

      Upon review, we agree with the trial court, and conclude that it did not

err or abuse its discretion in entering the nonsuit where Appellant failed to

meet its burden of presenting evidence of non-speculative, identifiable

damages. See Gillard, supra at 487; Newman Dev. Grp. of Pottstown,

LLC, supra at 661; Logan, supra at 227. Accordingly, Appellant’s second

issue does not merit relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/29/2016


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