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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

                      Appellees

                 v.

ROBERT N. ANDREWS AND SANDRA H.
ANDREWS

                      Appellants                No. 599 WDA 2015
                                                    622 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

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

                      Appellants

                 v.

ROBERT N. ANDREWS AND SANDRA H.
ANDREWS

                      Appellees                 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.

CONCURRING AND DISSENTING MEMORANDUM BY BOWES, J.:FILED JULY 15, 2016
J-A07036-16; J-A07037-16


      I concur with the learned majority’s disposition of all issues with the

exception of its affirmance of the trial court’s award of a new trial limited to

damages. I would reverse the trial court’s order granting a new trial as to

damages only and permit the jury verdict to stand for the following reasons.

      I submit first that the majority’s rationale for upholding the trial court’s

refusal to mold the verdict is equally applicable to the issue of whether a

new trial as to damages is warranted.        Both liability and damages were

contested. The jury was not required to find that Adams suffered all of the

damages he claimed from Andrews’ breach of the full disclosure provision.

As the majority acknowledges, the jury could have determined that Adams

would have entered the contract but paid less, or could have attributed the

bulk of Adams’s damages to the unseasonably warm winters, the glut of ice-

melt inventory, or his mismanagement of the company. In refusing to mold

the verdict, even the trial judge conceded that the jury could have arrived at

its final award via many different calculations.

      In ruling on Adams’ motion for a new trial as to damages, however,

the trial court was unwilling to accept the jury’s quantification of the

diminution in value of EMC due to Andrews’ breach.           The court found it

“coincidental to the point of unacceptable improbability” that the jury arrived

at $400,000, the exact amount of the hand money, and concluded that the

award bore no reasonable relationship to the actual damages suffered by

Adams. While acknowledging that it was not its prerogative to second-guess


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J-A07036-16; J-A07037-16


the judgment of the jury, the trial court did just that. Conceding further that

“[w]e have no insight at all into the thinking of the jury[,]” the court

speculated that the jury misapplied the law with respect to contract

damages and awarded a new trial as to damages only. Trial Court Opinion,

7/24/15, at 9.

      The majority affirms, agreeing that there was “no quantifiable

explanation for the jury’s verdict.” Majority Slip Opinion at 15. In the next

breath, however, the majority acknowledges that the jury could have

concluded that Adams would have purchased the company at a reduced

price had it known the information Andrews failed to disclose, and further,

that the jury may have opted to reduce the damages based on the

unseasonably warm winters and Adams’ mismanagement. Nonetheless, the

majority accepts the trial court’s premise that the $400,000 figure was just

too coincidental.

      This is a case where both liability and damages were hotly contested.

I submit that the trial court’s award of a new trial limited to damages on

these facts would be unfair to both parties and an abuse of discretion. See

Kindermann v. Cunningham, 110 A.3d 191, 193, (Pa.Super. 2015).              As

our Supreme Court held in Gagliano v. Ditzler, 263 A.2d 319, 320 (Pa.

1970) (citing Berkeihiser v. DiBartolomeo, 196 A.2d 314 (Pa. 1964)),

"where a substantial conflict exists on the question of liability, such that a

low verdict might indicate that the jury compromised the liability issue with


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the amount of damages awarded, it is an abuse of discretion for the lower

court to grant a new trial limited to the issue of damages.”       A new trial

limited to damages is appropriate “only where (1) the question of liability is

not intertwined with the question of damages, and (2) the issue of liability is

either (a) not contested or (b) has been fairly determined so that no

substantial complaint can be made with respect thereto.” Id. (emphasis in

original). We have applied this reasoning in contract actions as well as tort

actions.   See Ely v. Susquehanna Aquacultures, Inc., 130 A.3d 6

(Pa.Super. 2015). I find unpersuasive the majority’s attempt to distinguish

Ely on the basis that it involved service or employment contracts, not the

sale of a business.

      The fact that the amount of damages mirrors the amount of the hand

money simply does not indicate that the jury misapplied the law or that the

damages were unreasonable. The verdict form confirms that the jury was

not unanimous and suggests that the amount of the damage award may

have been the result of jury compromise, which was its prerogative.

Furthermore, the jury was instructed that it could reduce damages for

breach of contract if it concluded that the company declined “due solely to

mismanagement on the part of” Adams. N.T., 1/26/15, at 1142-43. By all

indications, the jury followed the court’s instructions.

      For these reasons, I respectfully dissent from that portion of the

majority’s decision.


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