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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CHESTNUT CREEK CONSTRUCTION                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    EDWARD MURPHY AND MAGGIE                   :
    MURPHY A/K/A MARGARET MURPHY               :
                                               :   No. 452 EDA 2016
                          Appellant            :


                    Appeal from the Judgment March 15, 2016
              In the Court of Common Pleas of Montgomery County
                        Civil Division at No(s): 09-04149

    CHESTNUT CREEK CONSTRUCTION                :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                          Appellant            :
               v.                              :
                                               :
                                               :
    EDWARD MURPHY AND MAGGIE                   :
    MURPHY, A/K/A MARGARET MURPHY              :
                                               :   No. 551 EDA 2016

               Appeal from the Judgment Entered March 15, 2016
              In the Court of Common Pleas of Montgomery County
                        Civil Division at No(s): 09-04149


BEFORE:      OTT, J., RANSOM, J., and FITZGERALD, J.*

MEMORANDUM BY RANSOM, J.:                                  FILED MAY 04, 2017

        In this consolidated appeal, Chestnut Creek Construction (“Chestnut”)

appeals from the judgment entered March 15, 2016,1 in its favor and against
____________________________________________


1
 Chestnut and Murphy purported to appeal from the January 8, 2016 order
denying their motion for post-trial relief; however, entry of final judgment
(Footnote Continued Next Page)


*
    Former Justice specially assigned to the Superior Court.
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Edward Murphy and Maggie Murphy a/k/a Margaret Murphy (collectively,

“Murphy”) in the amount of $87,821.21.            Murphy cross-appeals from the

judgment against them. We affirm.

      The trial court outlined the relevant procedural and factual history as

follows:

         The instant appeals arise out of a joint venture between the
      parties to subdivide and develop a parcel of property located at
      1252 Meetinghouse Road in Lower Gwynedd, Pennsylvania (the
      “Property.”) [In January 2005], the parties entered into a
      Construction    and   Land    Development     Agreement     (the
      “Agreement”) the purpose of which was clearly set out in its
      preamble, as follows:

               This Agreement is executed by and between Edward
           Murphy and Maggie Murphy (Owner) and Chestnut Creek
           Construction, Inc. (Builder), for the purpose of subdividing
           the property located at 1252 Meetinghouse Road,
           Gwynedd, PA. 19426 (Property) into three lots and
           constructing custom homes on two newly subdivided lots,
           which will be named lots #2 and #3 (New Lots). The
           Owner will retain ownership of Lot #1, which currently
           contains his existing residence, and retains all rights
           thereon for said Lot #1. This Property is currently a 5.5
           acre tract situate between Route 202 and Evans Road,
           Lower Gwynedd Township (Township), Montgomery
           County, Pennsylvania.

         In six paragraphs thereafter, the Agreement, in relevant part,
      provided inter alia that: legal Ownership was to remain with
                       _______________________
(Footnote Continued)

was required to make the instant matter properly appealable. See Pa.R.A.P.
301. The Montgomery County Prothonotary entered judgment on March 15,
2016, thereby perfecting this Court’s jurisdiction. See Pa.R.A.P. 905(a)(5)
(“A notice of appeal filed after the announcement of a determination but
before the entry of appealable order shall be treated as filed after such entry
and on the day thereof.”).



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     Owner ([Murphy]) until the new lots were sold; Builder
     ([Chestnut]) was to work with Owner to obtain subdivision
     approval, the costs of which were to be paid by Builder and
     reimbursed from proceeds of the sale of the new lots and homes
     thereon; Builder would improve the new lots, build new homes
     on each for which Builder would be paid costs of improvements
     and construction, plus 10% overhead, plus 10% profit; “Owner
     and Builder agree to jointly acquire a construction loan for the
     total amount of the Construction Costs and improvement costs.
     Funds from construction loan will be disbursed to Builder
     periodically to cover the costs of the construction. Any fees or
     costs associated with the construction loan, including interest
     payments, shall be borne equally by Owner and Builder,” and;
     from proceeds of [] new lots and homes constructed thereon,
     Owner shall receive $450,000.00 for price of lots; Builder shall
     receive costs, plus overhead, and profit and balance to be
     divided equally. ([Notes of Testimony,] N.T. 6/8/15, at Ex. P-1
     (“Agreement”), 11/10/15). []

         Pursuant to the Agreement, [Chestnut] (Builder) promptly
     sought subdivision and land development approvals from Lower
     Gwynedd Township (the “Township”) as indicated by
     [Chestnut’s] submission of an Application for Approval of Plans
     dated January 31, 2005 (N.T. 6/8/15, at 15, Ex. P-2 (“Township
     Application for Approval of Plans”), 11/10/15). In preparing the
     Application, [Chestnut’s] owner and president, Jim Held testified
     that he had hired an engineer, [] who presented a set of plans,
     and then attended and participated in numerous meetings with
     the Township’s planning commission, engineer, and zoning
     officer. (N.T. 6/8/15, at 16 -17). [In September 2006], by virtue
     of [Chestnut’s] efforts, the Township entered into a land
     development agreement with [Chestnut] as the developer and
     [Murphy] as the owners. [In October 2008], the site subdivision
     plan was filed with the Montgomery County Recorder of Deeds,
     thereby effectuating subdivision of the Property.

        [In February 2007], however, without [Chestnut’s] knowledge
     or consent (and in breach of the parties’ Agreement), [Murphy]
     executed a note and mortgage in the amount of $3.375M []
     which was recorded against the Property. [Murphy] fell into
     arrears on the mortgage and eventually lost the Property in
     foreclosure. (Prior to [Murphy’s] instant above-referenced
     refinancing, and at the time the parties executed the Agreement,


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        the Property was encumbered by a mortgage of approximately
        $1.6M. (N.T. 6/8/15, at 162 -63.))
           [In February 2009], [Chestnut] instituted the instant action
        by filing a two–count complaint, sounding in breach of contract
        and unjust enrichment. The complaint asserted, inter alia, that
        [Murphy] breached the Agreement by virtue of their refinancing
        and default thereon, and sought reimbursement of costs
        expended and future lost profits as a result of that breach. []

            After accepting service of the complaint[,] [] [Murphy]
        thereafter failed to timely respond. [In August 2009], [Chestnut]
        sought entry of default judgment with the filing of the requisite
        praceipe [asking the Prothonotary to] [] [“][a]ssess [d]amages
        at a trial limited to a determination of the amount of the
        damages, as per [Pa.R.C.P.] 1037(b)(1) . . .[”] Upon
        [Chestnut’s] filing of the above-referenced praecipe, the
        Montgomery County Prothonotary entered a default judgment in
        favor of [Chestnut] []. Thus, by virtue of [Murphy’s] default,
        they admitted a material breach of the Agreement by
        encumbering the Property with a $3.375M mortgage without the
        consent or knowledge of [Chestnut], defaulting on that financing
        and losing the Property in foreclosure. ([Complaint] at ¶¶ 113-
        16, 2/11/09). Despite the serious implications of this judgment,
        Defendants failed to seek relief from the entry of judgment until
        more than a year and a half later. Then, [in February 2011],
        [Murphy] filed a petition to open, which [was denied in October
        2011]. [] [In March 2013], the Superior Court affirmed the trial
        court’s denial of the petition, and [] the Pennsylvania Supreme
        Court denied [Murphy’s] petition for allowance of appeal [in
        November 2013]. Upon remittal, the [] Montgomery County
        Court Administration [was directed] to place the matter in the
        trial list i.e., bench trial for assessment of damages.

           [] [In June 2015], the case proceeded to an assessment of
        damages bench trial []. By order dated September 21, 2015, a
        verdict [was entered] in favor of [Chestnut] and against
        [Murphy] in the amount of $87,821.21, plus costs and interest at
        6% from the date of the Judgment thereon until paid.

Trial   Court   Opinion,   7/26/2016,   at    1-5   (footnotes   and   unnecessary

capitalization omitted).




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      Thereafter, Murphy timely filed a post-trial motion for judgment non

obstante verdicto (“JNOV”) or a new trial in the alternative. See Pa.R.C.P.

227.1.   Defendant’s Post Trial Motion for New Trial or in the Alternative

Judgment    Notwithstanding   the   Verdict   (“Murphy      Motion   for   JNOV”),

9/30/2015. In this motion, Murphy asserted that the court’s decision was

against the weight of the evidence, specifically claiming that Chestnut failed

to show (1) that they were entitled to payment in the event that no buyers

were willing to develop the lots; (2) that Chestnut made any effort to

mitigate their damages; and generally (3) failed to show that Murphy was

the cause of Chestnut’s damages.

      Chestnut responded and filed a motion for JNOV as well, asserting that

the trial court’s decision was contrary to law because (1) Murphy was

erroneously permitted to present a defense to liability for damages; (2)

Chestnut should have received the full amount of damages claimed as their

evidence was uncontroverted; and (3) the court improperly accepted

Murphy’s testimony of real estate market conditions at the relevant time.

Plaintiff’s Post Trial Motion for Judgment Notwithstanding the Verdict

(“Chestnut Motion for JNOV”), 10/6/2015.

      Following briefing and argument on the parties’ cross motions, the trial

court denied both parties’ motions for post-trial relief in January 2016. In

February 2016, the parties timely filed cross-appeals from the trial court’s

denial of their respective motions for post-trial relief.    Both parties timely


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filed court-ordered Pa.R.A.P. 1925(b) statements, and the court filed a

responsive opinion in July 2016.

       On appeal, Chestnut presents the following issues for our review:

       1. Did the [c]ourt err in allowing [Murphy] to present a defense
          which went to the merits of the case and was not restricted to
          the amount of damages as per [Pa.R.C.P. No.] 1037?

       2. Did the [c]ourt err in not awarding [Chestnut] the full
          measure of damages in the absence of any testimony to the
          contrary?

Chestnut’s Brief at 3.2 Murphy presents the following issues for our review:

       1. Did the trial court properly deny [] [Chestnut’s] post trial motion
          since it had not proven it’s [sic] claim for lost profits?

       2. Did the trial court improperly deny [Murphy’s] motion for judgment
          NOV and a new trial as a result of its award of subdivision costs to
          [] [Chestnut]?

____________________________________________


2
  Chestnut’s brief is soundly out of compliance with the Pennsylvania Rules
of Appellate Procedure. Chestnut flouts Rule 2111 by omitting a scope of
review and standard of review and omitting a copy of the statement of
errors complained of on appeal. Chestnut provides a woefully deficient
statement of the case, a section required by Pa.R.A.P. 2117. Moreover,
Chestnut has failed to comply with Pa.R.A.P. 2119, in that its argument is
not divided into as many parts as there are questions presented, and its
argument is devoid of any citation to the record. Additionally, as Murphy
notes, Chestnut failed to include a reproduced record with its brief.
Chestnut does not qualify for any of the exceptions listed in Rule 2151,
which would excuse this error, and has not requested a waiver from the
requirement to file the record. However, Murphy did not move for dismissal
of Chestnut’s appeal on this ground, as permitted by Rule 2188. This
potpourri of failures by Chestnut has complicated our review of Chestnut’s
arguments. See In re R.D., 44 A.3d 657, 674 (Pa. Super. 2012) (“[W]hen
defects in a brief impede our ability to conduct meaningful appellate review,
we may dismiss the appeal entirely or find certain issues to be waived.”);
Pa.R.A.P. 2101, 2119.



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Murphy’s Brief at 4.

      Following trial, both parties filed post-trial motions seeking judgment

notwithstanding the verdict and, in Murphy’s case, a new trial. We review a

denial of JNOV in the following manner:

      When reviewing an appeal from the denial of a request for
      [JNOV], the appellate court must view the evidence in the light
      most favorable to the verdict-winner and give him or her the
      benefit of every reasonable inference arising therefrom while
      rejecting all unfavorable testimony and inferences.... Thus, the
      grant of a [JNOV] should only be entered in a clear case and any
      doubts must be resolved in favor of the verdict-winner.
      Furthermore, [i]t is only when either the movant is entitled to
      judgment as a matter of law or the evidence was such that no
      two reasonable minds could disagree that the outcome should
      have been rendered in favor of the movant that an appellate
      court may vacate a jury's finding.

Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (Pa. Super. 2006)

(internal citations and quotations omitted, formatting modified.).

      When considering a challenge to the trial court's ruling denying a

motion for a new trial, we are guided by the following standard of review:

      We must review the court's alleged mistake and determine
      whether the court erred and, if so, whether the error resulted in
      prejudice necessitating a new trial.    If the alleged mistake
      concerned an error of law, we will scrutinize for legal error.
      Once we determine whether an error occurred, we must then
      determine whether the trial court abused its discretion in ruling
      on the request for a new trial.

Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.

Super. 2008) (citing Gbur v. Golio, 932 A.2d 203, 206–207 (Pa. Super.

2007)).




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      Collectively, the parties dispute the damages awarded by the trial

court. The calculation of damages is a question of fact, determined by the

fact finder.   Hatwood v. Hosp. of the Univ. of Pennsylvania, 55 A.3d

1229, 1240 (Pa. Super. 2012) (stating that the calculation of damages is a

question of fact).

      We review a court’s assessment of damages according to the following

standard:

      The duty of assessing damages is within the province of the
      factfinder and should not be interfered with by the court, unless
      it clearly appears that the amount awarded resulted from
      caprice, prejudice, partiality, corruption or some other improper
      influence. In reviewing the award of damages, the appellate
      courts should give deference to the decisions of the trier of fact
      who is usually in a superior position to appraise and weigh the
      evidence. If the verdict bears a reasonable resemblance to the
      damages proven, we will not upset it merely because we might
      have awarded different damages.

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

98 A.3d 645, 659-60 (Pa. Super. 2014) (citations, brackets, and quotation

marks omitted).

      It is well-established that in a breach of contract action, damages must

be proved with reasonable certainty.      Helpin v. Trustees of Univ. of

Pennsylvania, 10 A.3d 267, 270 (Pa. 2010) (citing Ferrer v. Trustees of

the University of Pennsylvania, 825 A.2d 591, 610 (Pa. 2002)).              A

damage award should place the non-breaching party as nearly as possible in

the same position it would have occupied had there been no breach.

Lambert v. Durallium Products Corporation, 72 A.2d 66, 67 (Pa. 1950).

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The measure of damages for breach of contract is compensation for the loss

sustained. Id. However, “[a]s 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.”   Spang & Co. v. U.S. Steel Corp., 545 A.2d 861,

866 (Pa. 1988).

     Damages for lost profits, like other contract damages, may not
     be awarded when the evidence leaves the trier of fact without
     any guideposts except his or her own speculation. Sufficient
     evidence must be introduced to permit a reasonably certain
     estimate of the amount of anticipated profits lost due to the
     breach.

Merion Spring Co. v. Muelles Hnos. Garcia Torres, S.A., 462 A.2d 686,

695 (Pa. Super. 1983).

     In its first claim, Chestnut asserts that the trial court erred in

permitting Murphy to introduce a defense of liability rather than strictly

disputing calculation of damages.   Chestnut Creek Brief at 6-8.   Chestnut

characterizes Murphy’s evidence of the real estate valuation as going to the

cause of the loss instead of factoring into the calculation of damages. Id.

Chestnut is mistaken.    The issue before the trial court was limited to the

award of damages, and Murphy properly challenged Chestnut’s evidence by

introducing expert testimony which established that the amount Chestnut

claimed in lost profits was belied by real estate market conditions.   N.T.,

6/8/2015 at 120-46. The trial court considered this expert testimony, along

with the other evidence presented, and concluded that Chestnut’s claim of

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lost profits was overly speculative. See Trial Court Opinion, 7/26/2016, at

13-16. Accordingly, the court did not err. Spang & Co., 545 A.2d at 866;

Merion Spring Co., 462 A.2d at 695.

      Second, Chestnut asserts its evidence of damages was unrebutted.

Chestnut Creek Brief at 7-14. This claim is without merit, as it is simply not

supported by the record.        As mentioned supra, Murphy challenged

Chestnut’s evidence with expert testimony, suggesting that Chestnut’s

evidence of profit loss was speculative.       Assessment of damages is a

question of fact within the discretion of the fact finder. Hatwood, 55 A.3d

at 1240. The trial court found Murphy’s evidence credible and persuasive, as

such, we discern no abuse of discretion. Id.

      For these reasons, the court did not err or otherwise abuse it’s

discretion in denying Chestnut’s motion for JNOV.        Thomas Jefferson

Univ., 903 A.2d at 569.

      In light of our disposition of Chestnut’s claims, we need not address

Murphy’s first issue. Murphy argues in its second issue that the trial court

improperly denied its post-trial motions for JNOV and a new trial. We first

address Murphy’s contention that the trial court erred in denying its motion

for JNOV, where Murphy asserted that the court’s decision was against the

weight of the evidence.

      We reiterate that the cause of the breach of the underlying contract is

admitted by the default judgment entered against Murphy, and Murphy is


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precluded from re-litigating that fact. Wilson v. Maryland Cas. Co., 105

A.2d 304, 312 (Pa. 1954) (recognizing that a default judgment operates as

an admission by the defendant of the truth of all facts well-pleaded); see

Pa.R.C.P. 1037(b)(1). In the instant case, there was no liquidated damages

provision indicating a “sum certain”         or   language   outlining damages

calculations in the event of a breach.            See Construction and Land

Agreement.    Accordingly, the trial court was responsible for ascertaining

what, if any, damages were due to Chestnut. Pa.R.C.P. 1037(b)(1).

     Here, the trial court outlined the “ample evidence of expense” incurred

by Chestnut as presented at the damages hearing and found that Chestnut

sustained $87,821.21 in damages. See Trial Court Opinion, 7/26/2016, at

8-13; see also Hatwood, 55 A.3d at 1240. This figure was based on (1)

the fact that Murphy was in breach of the contract; (2) the detailed

testimony of Jim Held explaining the money Chestnut had expended in

furtherance of the agreement; (3) an independent accountant’s report and

accompanying testimony describing the sums expended by Chestnut; and

(4) the reasonable conclusion of the court that subdivision costs would be

paid from the sale of the home prior to the distribution of profits to either

party. Trial Court Opinion, 7/26/2016, at 10-13.

     Conversely, the court found that the profit losses claimed by Chestnut

were too speculative, reasoning:

     Simply put, [Chestnut] failed in its proof to establish that profits
     would have been realized absent [Murphy’s] breach. Unlike

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       subdivision costs which were to be distributed from the sale
       proceeds first, profits, according to the Agreement, and by their
       very nature, were to be distributed last. [Chestnut] produced
       little evidence beyond Mr. Held’s projections that the sale of the
       lots with luxury homes at the time they would be marketed
       pursuant to the Agreement would have realized a sale price
       sufficient to pay subdivision costs, construction costs (including
       financing cost thereon), $450,000.00 per lot to [Murphy], and
       thereafter, profits to be split equally between [Chestnut] and
       [Murphy] in that order as called for in the Agreement.

Trial Court Opinion, 7/26/2016, at 13-15.     In conjunction with the lack of

lost profits evidence presented by Chestnut, Murphy presented an expert on

real estate valuation, who opined that a change in market conditions

undercut real estate values at the prospective time of sale. N.T., 6/8/2015

at 120-46. As such, the court was left without enough evidence to permit a

reasonably certain estimate of anticipated profit loss, and the court was not

permitted to award damages based on pure speculation.         Merion Spring

Co., 462 A.2d at 695.

       Here, the court’s findings were supported by the evidence of record,

therefore the court did not abuse its discretion in awarding subdivision costs

expended and declining to award lost profits.        Newman Dev. Grp. of

Pottstown, LLC, 98 A.3d at 659-60. Accordingly, when viewed in the light

most favorable to the verdict-winner, we conclude that the court properly

denied Murphy’s motion for JNOV. Thomas Jefferson Univ., 903 A.2d at

569.

       Applying our standard of review for denial of a new trial to the above

facts, we conclude that the award of damages for subdivision costs was also

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supported by the evidence of record.      Thus, we discern no abuse of

discretion and therefore no error which would warrant the grant of a new

trial. Underwood ex rel. Underwood, 954 A.2d at 1206.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/4/2017




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