J-A09025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  ALLEN-MYLAND, INC. AND LARRY                 :   IN THE SUPERIOR COURT OF
  ALLEN                                        :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
  GARMIN INTERNATIONAL, INC. AND               :
  WINNER AVIATION CORPORATION                  :   No. 2308 EDA 2018
                                               :
                                               :
  APPEAL OF: ALLEN-MYLAND, INC.                :

              Appeal from the Judgment Entered August 2, 2018
      In the Court of Common Pleas of Delaware County Civil Division at
                          No(s): CV-2013-005759

BEFORE:      KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY MURRAY, J.:                                FILED APRIL 30, 2019

       Allen-Myland, Inc. (Appellant) appeals from the judgment entered in

favor of Garmin International, Inc. (Garmin) and Winner Aviation Corporation

(Winner) (collectively, Appellees). Upon review, we agree with the trial court

that pursuant to Pennsylvania Rule of Civil Procedure 227.1, Appellant’s post-

trial motion was deficient, and as a result, Appellant’s issues are waived.

Accordingly, we affirm.

       Appellant commenced the underlying action on June 11, 2013. In its




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* Retired Senior Judge assigned to the Superior Court.
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amended complaint,1 Appellant alleged causes of action against both

Appellees for fraud, breach of implied warranty of fitness for a particular

purpose, breach of express warranty, unfair trade practices,2 and breach of

contract. As the trial court and the parties are familiar with the underlying

facts and procedural history, which are generally undisputed, we adopt the

summary set forth in this Court’s May 24, 2016 opinion. See Allen-Myland,

Inc., 140 A.3d at 680-681. That opinion: (1) reversed the partial summary

judgment granted in favor of Garmin with respect to Appellant’s fraud and

breach of implied warranty claims; (2) reversed the compulsory nonsuit,

entered at the December 14, 2015 bench trial on the remaining breach of

express warranty and breach of contract claims against Garmin; (3) reversed

the nonsuit entered on all claims against Winner; and (4) remanded the case

for a new trial.3 Id. at 681.


____________________________________________


1 Although Larry Allen, Appellant’s president and sole shareholder, was a
named plaintiff in the original complaint, he was not named in the amended
complaint. Allen-Myland, Inc. v. Garmin Int’l, Inc., 140 A.3d 677, 680
n.1 (Pa. Super. 2016). Appellant has confirmed that Allen is no longer a party
to the action. N.T. Trial, 8/4/17, at 4.

2See Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73
P.S. §§ 201-1 to 201-9.3

3 Although this Court remanded “for further proceedings,” a new trial was
proper. See Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 596
(Pa. 2012) (upon appellate removal of compulsory nonsuit, matter is
remanded for new trial).




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       Upon remand, the trial court conducted a bench trial on the following

claims:   breach of implied warranty against both Appellees, and breach of

express warranty and breach of contract against Winner.4 See Appellant’s

Memorandum of Law, Proposed Findings of Fact, Conclusions of Law, and

Proposed Order, 11/21/17, at 2. Appellant sought damages in the amount of

$90,165. The trial court heard evidence on August 14, 15, and 31, 2017.

Appellant presented the testimony of Allen and Peter Quick (Winner’s

employee) as if Quick were on cross-examination. N.T. Trial, 8/14/17, at 11-

86, 147-185. At the close of Appellant’s case, Garmin moved for nonsuit on

Appellant’s sole claim against Garmin (breach of implied warranty), arguing

that Appellant failed to establish that Winner had apparent authority or agency

by estoppel to act on behalf of Garmin. Id. at 190-191. The court deferred

ruling.   Id. at 204.     Meanwhile, Appellees presented their defense, which

included the testimony of Quick, two Garmin employees, and an expert in the

field of aircraft valuation. The parties made closing arguments on December

18, 2017.     On April 12, 2018, the trial court issued its ruling in favor of

Appellees on all counts.

       On April 20, 2018, Appellant filed a timely post-trial motion.         It

subsequently petitioned for leave to amend the motion to clarify that it was

seeking relief on its implied warranty claims against both Appellees, and not


____________________________________________


4 The judge who presided at the first trial, the Honorable Charles Burr, recused
from the case, and the case was reassigned to the Honorable Spiros Angelos.

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just Garmin. The trial court heard argument on June 25, 2018, at which point

it orally granted Appellant’s request to amend the motion. N.T., 6/25/18, at

4. Appellant then argued that the trial court should reverse its April 12, 2018

ruling in favor of Appellees. In response, Appellees argued that Appellant’s

post-trial motion should be dismissed because it lacked specificity in

contravention of Pa.R.Civ.P. 227.1; in the alternative, Appellees argued that

Appellant’s motion should be denied on the merits.          With regard to the

mandate of Pa.R.Civ.P. 227.1, Appellant responded that its claims were

familiar to both the court and Appellees because the claims had been

addressed and litigated throughout the case. Id. at 22-23. Appellant argued:

      These are issues that have been before this Court. This Court is
      quite aware -- I find it almost insulting to believe that the Court
      has no idea what issues it is that are before them. This is the
      whole case that has been before Your Honor. It has been in all the
      briefs, it has been in all the arguments. And it is the same thing.
      To have suggested that all of that had to be put into the motion
      really makes no sense. Your Honor is quite aware of what the
      averments of error have been.

Id. at 23. Nonetheless, Appellant made a second request to amend its post-

trial motion, stating:

      And if [the court] was not [clear about issues and] it requires
      additional -- an additional amendment to the motion I would ask
      the Court to give us an opportunity to then amend it and put in
      the language if the Court believes that it did not have enough
      information to know what it is we were complaining about.

Id. at 35-36. The trial court denied Appellant’s request. Id. at 37.

      The following day, the trial court issued an order memorializing its denial

of Appellant’s second request to amend its post-trial motion. Order, 6/26/18.


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On June 28, 2018, Appellant filed an amended post-trial motion which included

the first requested revision which the trial court granted — that Appellant was

seeking relief on its implied warranty claim against both Garmin and Winner,

and not just Winner.

        On July 30, 2018, the trial court issued an order denying Appellant’s

post-trial motion. Judgment was entered in favor of both Appellees on August

2, 2018. Appellant filed a timely notice of appeal and a timely court-ordered

Pennsylvania Rule of Appellate Procedure 1925 statement.5 The court issued

an opinion on October 4, 2018, explaining that it denied Appellant’s post-trial

motion for failure to comply with Rule 227.1, and even if Appellant’s issues

were not waived, denial was appropriate on the merits.

        Appellant presents five issues for review:6

        [1.] DID THE TRIAL COURT ERR IN CONCLUDING THAT
        [APPELLANT] WAIVED ALL ISSUES ON APPEAL?


        [2.] DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR ERR
        AS A MATTER OF LAW IN FINDING THAT WINNER DID NOT ACT
        AS THE AGENT OF GARMIN UNDER THE DOCTRINES OF APPARENT
        AUTHORITY AND/OR AGENCY BY ESTOPPEL?
____________________________________________


5   Appellant’s Rule 1925(b) statement—possibly as consequence of the
Pa.R.C.P. 227.1 post-trial motion issue—is improperly lengthy, spans 4 pages,
includes a “Preliminary Statement,” and raises 4 claims, all of which are
further divided into 3 or 4 sub-claims. We remind Appellant that unlike
Pa.R.C.P. 227.1, Pa.R.A.P. 1925(b) provides that the statement “shall set forth
only those rulings or errors that the appellant intends to challenge,” “shall
concisely identify each ruling or error,” and “should not be redundant or
provide lengthy explanations as to any error.” See Pa.R.A.P. 1925(b)(4)(i),
(ii), (iv).

6   We have reordered the issues for ease of discussion.

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J-A09025-19



      [3.] DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR ERR
      AS A MATTER OF LAW IN FINDING THAT NEITHER GARMIN NOR
      WINNER BREACHED ITS IMPLIED WARRANTY OF FITNESS FOR A
      PARTICULAR PURPOSE BECAUSE ALTITUDE CAPTURE WAS NOT
      SPECIFICALLY MENTIONED IN THE DISCUSSIONS PRIOR TO
      PURCHASE?

      [4.] DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR ERR
      AS A MATTER OF LAW IN FINDING THAT WINNER DID NOT
      BREACH ITS EXPRESS WARRANTY BECAUSE ALTITUDE CAPTURE
      WAS NOT SPECIFICALLY MENTIONED IN THE WARRANTY
      CONTAINED IN THE CONTRACT?

      [5.] DID THE TRIAL COURT ABUSE ITS DISCRETION AND/OR ERR
      AS A MATTER OF LAW IN FINDING THAT WINNER DID NOT
      BREACH ITS CONTRACT BECAUSE ALTITUDE CAPTURE WAS NOT
      SPECIFICALLY MENTIONED IN THE CONTRACT?

Appellant’s Brief at 5.

      Appellant argues that the trial court erred in finding that its post-trial

motion failed to state claims with specificity as required by Rule 227.1.

Appellant maintains that its motion properly identified the court’s findings that

it sought to dispute in compliance with Rule 227.1, where the record “in this

matter reveals that the trial court was well aware of the issues . . .”

Appellant’s Brief at 61. Appellant further argues that “[e]ven if . . . there is a

technical violation of the [R]ule, neither [Appellee] suffered harm as the [R]ule

is for the benefit of the trial court and appellate court, neither of which have

been harmed.” Id. at 65. Upon careful review, we disagree.

      Rule 227.1(b)(2) provides that “post-trial relief may not be granted

unless the grounds therefor . . . are specified in the motion.”       Pa.R.Civ.P.

227.1(b)(2). Furthermore, a motion for post-trial relief “shall specify the relief

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J-A09025-19


requested and may request relief in the alternative.” Pa.R.Civ.P. 227.1(d).

The comment to the rule explains:

     In requiring the motion to state the specific grounds therefor,
     motions which set forth mere “boilerplate” language are
     specifically disapproved. A post-trial motion must set forth the
     theories in support thereof “so that the lower court will know what
     it is being asked to decide.” Frank v. Peckich, . . . 391 A.2d 624,
     632-633 ([Pa. Super.] 1978).

Pa.R.Civ.P. 227.1, comment.

     Appellant’s amended post-trial motion stated:

     1. The trial court erred in finding that [Appellant’s] claim against
     Garmin and Winner for breach of implied warranty of fitness for a
     particular purpose failed because there was no proof as to specific
     discussions regarding the altitude capture function. The Court’s
     finding is contrary to the law and the weight of the evidence
     presented at trial.

     2. The trial court erred in finding that [Appellant’s] claim against
     Winner for breach of express warranty failed because there was
     no express warranty other than that mentioned in the contract.
     The Court’s finding is contrary to the law and the weight of the
     evidence presented at trial.

     3. The trial court erred in finding that [Appellant’s] claim of breach
     of contract against Winner failed because the function of altitude
     capture was not mentioned in the contract. The Court’s finding is
     contrary to the law and the weight of the evidence presented at
     trial.

     4. The trial court erred in finding that Winner was not acting as
     the agent of Garmin pursuant to the doctrines of apparent
     authority and/or agency by estoppel. The Court’s finding is
     contrary to the law and the weight of the evidence presented at
     trial.

     5. The trial court erred in failing to find in favor of [Appellant] and
     against Winner and Garmin in the sum of [$]90,165.00. The
     Court’s failure to make such finding is contrary to the law and the
     weight of the evidence presented at trial.

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Appellant’s Motion for Post-Trial Relief, 6/28/18, at 2.

      The trial court explained its denial of Appellant’s post-trial motion as

follows:

      Appellant[ ] made an oral motion to amend [its] motion for post-
      trial relief, [66] days after the motion was originally filed. Given
      the passage of time since the original filing of the motion for post-
      trial relief as well as the fact that Appellants had already moved
      for leave to amend the motion once, this oral motion was denied.
      The final disposition of this motion occurred when the Motion for
      Post-Trial Relief was denied for failure to comply with [Rule]
      227.1, just as the above-cited case law and rules indicate was
      appropriate.

Trial Court Opinion, 10/4/18, at 9-10. After careful review, and mindful of the

tortured procedural history and complex issues in this case, we agree with the

trial court that Appellant’s post-trial motion lacked the specificity required by

Rule 227.1. See Pa.R.Civ.P. 227.1(b)(2), (d)(2) & comment.

      Appellant broadly stated that “the trial court erred in finding …,” then

inserted the court’s finding, with the concluding refrain that the finding “was

contrary to law and against the weight of the evidence presented at trial.”

Appellant’s Motion for Post-Trial Relief, 6/28/18, at 2.      Although Appellant

assailed the trial court’s findings, it did so generally, without advancing how

the findings were flawed, i.e., without providing “theories . . . so that the lower

court will know what it is being asked to decide.” Pa.R.Civ.P. 227.1, comment.

Although, as Appellant argued, the trial court was aware of Appellant’s many

issues that it presented “before [the court] throughout the litigation,”

Appellant’s assertion that “it is the same thing” post-trial, improperly charges

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the trial court with parsing and divining precisely which legal theories

Appellant sought to advance and argue post-trial. See N.T., 6/25/18, at 22-

23. The lack of specificity in Appellant’s post-trial motion thus placed the trial

in an untenable situation – in fact, a situation that Rule 227.1 seeks to avert.

Accordingly, we agree that Appellant did not comply with Rule 227.1 and

Appellant’s issues are waived.

      Furthermore, even if Appellant’s issues were not waived, we would

conclude that no relief is due. First, Appellant claims that the trial court erred

in finding that Winner was not Garmin’s agent under the doctrines of apparent

authority or agency by estoppel. See Appellant’s Brief at 44-46, 53. See

also Walton v. Johnson, 66 A.3d 782, 786 (Pa. Super. 2013) (“Apparent

agency exists where the principal, by word or conduct, causes people with

whom the alleged agent deals to believe that the principal has granted the

agent authority to act. Authority by estoppel occurs when the principal fails

to take reasonable steps to disavow the third party of their belief that the

purported agent was authorized to act on behalf of the principal.”).

      Appellant ignores the trial court’s observation — which the parties do

not dispute — that the contract was between Appellant and Winner only. See

Trial Court Opinion, 10/4/18, at 13. Appellant might have an agency claim if

its contract were with Garmin, and Winner, acting or holding itself out as

Garmin’s agent, executed the contract on Garmin’s behalf. This was not the

case, however, and thus Appellant’s claims against Garmin would not succeed


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under an agency theory.

      Appellant also alleges that the trial court erred in rejecting its breach of

implied warranty claim against Winner because altitude capture was not

specifically mentioned in Allen and Quick’s discussions prior to purchase. See

Allen-Myland, Inc., 140 A.3d at 683 (generally, under 13 Pa.C.S.A. § 2315,

where the seller at the time of contracting has reason to know (1) any

particular purpose for which the goods are required and (2) that the buyer is

relying on the seller’s skill or judgment to select or furnish suitable goods,

there is an implied warranty that the goods shall be fit for such purpose).

Appellant concedes that it “has never contended that altitude capture was

specifically mentioned leading up to the contract being signed,” but rather, it

has consistently argued that in pre-purchase discussions, both Allen and Quick

“understood” that Allen wanted altitude capture. Appellant’s Brief at 20.

      As Appellant acknowledges, the trial court emphasized it was undisputed

“that the specific functions of altitude capture and vertical navigation were not

mentioned during” the pre-purchase discussions.        See Trial Court Opinion,

10/4/18, at 10-11. The court explained:

      Absent discussion concerning or communications referencing
      these functions, Appellant[ ] had no opportunity to communicate,
      verbally or otherwise, to Appellees that [it was] relying on
      Appellees[’] expertise in the choice and installation of the new
      avionics systems to make sure that the functions of altitude
      capture and vertical navigation would continue to function.

Id. at 11. We would agree with the trial court’s reasoning and deny relief.

      Appellant’s last two issues are that the trial court erred in finding,

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respectively, that Winner did not breach an express warranty and did not

breach the parties’ contract. Appellant recognizes that the written contract

did   not   reference   altitude   capture,     but   nevertheless   maintains   that

conversations between Allen and Quick “sufficed as an express warranty.”

Appellant’s Brief at 35.

      “Given that express warranties are specifically negotiated (rather than

automatically implied by law), it follows that to create an express warranty,

the seller must expressly communicate the terms of the warranty to the buyer

in such a manner that the buyer understands those terms and accepts them.”

Goodman v. PPG Indus., 849 A.2d 1239, 1243 (Pa. Super. 2004).                    “To

succeed on a breach of contract claim, a plaintiff must prove the existence of

a contract and its essential terms, breach of a contractual duty, and damages.”

Allen-Myland, Inc., 140 A.3d at 692 (citation omitted). “In the cases of a

written contract, the intent of the parties is the writing itself. . . . When the

terms of a contract are clear and unambiguous, the intent of the parties is to

be ascertained from the document itself.” Lenau v. Co-Exprise, Inc., 102

A.3d 423, 429 (Pa. Super. 2014) (citations omitted).

      Instantly, the trial court found that in the absence of any specific

reference to automatic altitude capture in Winner’s express warranty,

Appellant did not establish a breach of express warranty. We would agree.

To create an express warranty as to automatic altitude capture, Winner must

have “expressly communicate[d]” to Appellant, but it is undisputed that


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Winner did not do so—either orally in the written contract. See Goodman,

849 A.2d at 1243. We would likewise agree that where the contract made no

reference to automatic altitude capture, Winner could not have breached the

contract in this regard. Further, we would reject Appellant’s contention that

this Court may consider the “surrounding circumstances” of the parties pre-

contract in determining the parties’ intent.   See Lenau, 102 A.3d at 429;

Appellant’s Brief at 38.

      In sum, after careful review, we discern no error by the trial court and

therefore affirm the judgment entered in favor of Appellees.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/19




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