J-A23038-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    JOSEPH BARAN                                  IN THE SUPERIOR COURT
                                                     OF PENNSYLVANIA
                             Appellant

                        v.

    GEORGE WESTON BAKERIES, INC., AND
    GEORGE      WESTON      BAKERIES
    DISTRIBUTION, INC.

                             Appellees                No. 380 WDA 2018


               Appeal from the Judgment Entered March 12, 2018
               In the Court of Common Pleas of Allegheny County
                       Civil Division at No.: GD-08-21117


BEFORE: BOWES, SHOGAN, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                          FILED JANUARY 7, 2019

        Appellant Joseph Baran appeals from the March 12, 2018 judgment

entered in the Court of Common Pleas of Allegheny County (“trial court”)

against him and in favor of Appellees George Weston Bakeries, Inc., and

George Weston Bakeries Distribution, Inc. (hereinafter, “Weston”) following

the denial of his post-trial motions seeking judgment notwithstanding the

verdict (“JNOV”). Upon review, we affirm.

        The facts and procedural history of this case are undisputed.1 In 1999,

Appellant entered into an exclusive distribution agreement (the “Agreement”)


____________________________________________


1 Unless otherwise specified, some background facts are taken from the June
9, 2010 memorandum issued by a prior panel of this Court. See Baran v.
George Weston Bakeries, Inc., 4 A.3d 681 (Pa. Super. Filed June 9, 2010)
(unpublished memorandum).
J-A23038-18



with Weston’s predecessor company, whereby he agreed to use his best

efforts to sell the company’s fresh-baked products along his route, designated

as “sales area #1269” (the “Route”). In return, he received a twenty percent

commission on those sales.

      In 2008, Weston sent Appellant a letter terminating the Agreement

based on numerous perceived violations of the Agreement over the years.

Although Appellant still owned the Route and received income from it, Weston

assumed control and operation of the Route after termination.           Weston

operated the Route by hiring temporary drivers.      Soon thereafter, Weston

expressed its intention to sell the Route at a fair market price on Appellant’s

behalf.

      Appellant subsequently filed the instant civil complaint against Weston,

asserting breach of contract, breach of implied covenant of good faith and fair

dealing, tortious interference with advantageous business relationships, and

civil conspiracy. Appellant also sought relief in the form of punitive damages,

as well as a preliminary injunction to enjoin Weston’s sale of his distribution

rights in the Route and to reinstate him as Weston’s independent operator of

the Route.

      Following a hearing, on February 12, 2009, the trial court granted a

preliminary injunction.   The trial court concluded that although it was not

persuaded to issue an injunction requiring Weston to reinstate Appellant as

the Route’s operator, it found reasonable grounds to issue an injunction

prohibiting Weston from selling Appellant’s exclusive distribution rights in the

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Route until the matter could be fully adjudicated. On appeal, we affirmed the

trial court’s issuance of the preliminary injunction in Appellant’s favor. See

Baran, supra.

      On June 14, 2013, Weston filed a motion for partial summary judgment,

arguing that Appellant was not entitled to recover lost profits under the

Agreement, which was governed by New York law.           Following Appellant’s

response, the trial court granted Weston’s motion for partial summary

judgment on November 21, 2014.

      The case eventually proceeded to a bench trial, after which the trial

court made the following factual findings:

             In 1962, at the age of five, [Appellant] began working in the
      bread industry by delivering bread door to door with his father.
      By 1985, [Appellant] owned a delivery truck and was an
      independent contractor for Bestfoods Baking Distribution
      Company (“Bestfoods”) delivering bread and other similar
      products to grocery stores in the West Mifflin area. In 1999,
      Bestfoods and [Appellant] entered into [the Agreement] for
      [Appellant] to distribute premium products, such as Thomas’®
      English muffins and Brownberry® breads. The Agreement made
      [Appellant] the exclusive distributor of those products in the West
      Mifflin and Homestead areas. In approximately 2004, [Weston]
      acquired Bestfoods, including the rights and duties under the
      [A]greement with [Appellant].

             Around this time, significant changes affecting [Appellant’s]
      distribution area were taking place. The large “Waterfront”
      shopping district along the Monongahela river opened in the
      Homestead area, and nationwide retailers located in the
      distribution area, including Walmart, Target and Sam’s Club,
      increased their sales of foods. To accommodate these changes,
      Weston believed that [Appellant] needed to change his delivery
      methods. Weston suggested that [Appellant] have a family
      member or an employee assist him, or that he “split his route” by
      selling a portion of the distribution area to another independent

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J-A23038-18


      operator. [Appellant], believing these suggestions would reduce
      his income, declined to implement them or any other change in
      his delivery methods.

             In 2006, 2007, and 2008 Weston sent [Appellant] eight
      letters that specified conduct by him that breached the
      [A]greement and allowed him three days to cure the breaches. In
      July 2008, after a Walmart serviced by [Appellant] removed
      Weston’s shelf space in the deli section of the store and
      reallocated it to a competitor, Weston notified [Appellant] the
      [A]greement was terminated. Weston instructed [Appellant] to
      sell his distribution rights to a qualified purchaser within ninety
      days, with Weston operating [Appellant’s] business, for his
      account, pending the sale.

Trial Court Opinion, 5/14/18, at 1-2. Based on the foregoing findings, the trial

court found in favor of Weston, dissolved the February 12, 2009 preliminary

injunction, and denied Appellant’s request for a permanent (mandatory)

injunction.   The trial court concluded that Appellant “repeatedly breached

Section 4.1 of the [Agreement]” and “never cured many of the breaches,

which under Section 8.3 ‘constitute a chronic breach and threaten significant

harm to [Weston], its trademarks or commercial reputation.’”        Trial Court

Order, 12/11/17, at ¶ 2. Given Appellant’s breaches, the trial court concluded

that Weston “was entitled to terminate the [A]grement.” Id. at ¶ 3.

      Appellant timely filed post-trial motions, seeking JNOV or a new trial.

Specifically, Appellant argued that “the evidence produced at trial by both

[Appellant] and [Weston] clearly establishes there were no repeated breaches

under Section 4.1 of the [Agreement] which constituted a chronic breach.”

Post-trial Motion, 12/17/17, at ¶ 1. Following a hearing, the trial court denied

Appellant post-trial relief on February 20, 2018. On March 12, 2018, the trial



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J-A23038-18



court’s verdict was reduced to judgment. Appellant appealed to this Court.

The trial court directed Appellant to file a Pa.R.A.P. 1925(b) statement of

errors complained of on appeal. Appellant complied, raising two assertions of

error. In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.

       On appeal, Appellant presents two issues for our review:

       [I.] Whether the lower court abused i[t]s discretion and
       committed an error of law in ruling that [Appellant] had breached
       the contract in question.[2]

       [II.] In the second appealable issue [Appellant] suggests the
       lower court abused its discretion and committed an[] error of law
       when it ruled that lost profits were not recoverable in this instant
       action because they were not permitted by paragraph 11.12 of the
       contract at issue.

Appellant’s Brief at 3.3
      Our scope and standard of review of these claims is well-defined.

       Our appellate role in cases arising from non-jury trial verdicts is
       to determine whether the findings of the trial court are supported
       by competent evidence and whether the trial court committed
       error in any application of the law. The findings of fact of the trial
       judge must be given the same weight and effect on appeal as the
       verdict of a jury. We consider the evidence in a light most
       favorable to the verdict winner. We will reverse the trial court
       only if its findings of fact are not supported by competent evidence
       in the record or if its findings are premised on an error of law. We
       will respect a trial court’s findings with regard to the credibility

____________________________________________


2 The first question presented is inartfully phrased. In his brief, Appellant does
not contest that he breached the Agreement. Rather, he argues that he cured
his breaches and, as a result, Weston should not have been permitted to
terminate the Agreement.
3 Because our resolution of Appellant’s first issue is dispositive, we need not
address his second issue pertaining to trial court’s grant of partial summary
judgment in favor of Weston on the issue on damages. The trial court found
against Appellant on his claim for breach of contract.

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J-A23038-18


      and weight of the evidence unless the appellant can show that the
      court’s determination was manifestly erroneous, arbitrary and
      capricious or flagrantly contrary to the evidence.

J.J. DeLuca Company, Inc. v. Toll Naval Associates, 56 A.3d 402, 410

(Pa. Super. 2012) (quotation marks, formatting, and citations omitted).

      Our standard of review of a trial court’s denial of a request for a

permanent injunction is well-settled: “[W]hen reviewing the grant or denial of

a final or permanent injunction, an appellate court’s review is limited to

determining whether the trial court committed an error of law.” Buffalo Twp.

v. Jones, 813 A.2d 659, 663–64 (Pa. 2002).

      Ultimately, the grant or denial of a permanent injunction will turn
      on whether the trial court properly found that the party seeking
      the injunction established a clear right to relief as a matter of law.
      Accordingly, we think it proper that appellate review in these
      cases is whether the lower court committed an error of law in
      granting or denying the permanent injunction. Our standard of
      review for a question of law is de novo. Our scope of review is
      plenary.

Id. at 664 n.4 (citations omitted).

      It is settled that because contract interpretation is a question of law, our

review of the trial court’s decision is de novo and our scope of review plenary.

Bair v. Manor Care of Elizabethtown, PA, LLC, 108 A.3d 94, 96 (Pa. Super.

2015), appeal denied, 125 A.3d 775 (Pa. 2015).

      The fundamental rule in interpreting the meaning of a contract is
      to ascertain and give effect to the intent of the contracting parties.
      The intent of the parties to a written agreement is to be regarded
      as being embodied in the writing itself. The whole instrument
      must be taken together in arriving at contractual intent. Courts
      do not assume that a contract’s language was chosen carelessly,
      nor do they assume that the parties were ignorant of the meaning
      of the language they employed. When a writing is clear and

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J-A23038-18


     unequivocal, its meaning must be determined by its contents
     alone.

     Only where a contract’s language is ambiguous may extrinsic or
     parol evidence be considered to determine the intent of the
     parties. A contract contains an ambiguity if it is reasonably
     susceptible of different constructions and capable of being
     understood in more than one sense. This question, however, is
     not resolved in a vacuum.        Instead, contractual terms are
     ambiguous if they are subject to more than one reasonable
     interpretation when applied to a particular set of facts. In the
     absence of an ambiguity, the plain meaning of the agreement will
     be enforced. The meaning of an unambiguous written instrument
     presents a question of law for resolution by the court.

Ramalingam v. Keller Williams Realty Group, Inc., 121 A.3d 1034, 1046

(Pa. Super. 2015) (citation and original emphasis omitted).

     Instantly, the Agreement in pertinent part provides as follows:

                                ARTICLE 4

                     DISTRIBUTOR’S OBLIGATIONS

     §4.1. RESULTS: In order to maximize its purchase from
     [Weston], [Appellant] agrees to develop and maximize sales of
     Products to Outlets within the Sales Area by maintaining an
     adequate and fresh supply of Products in all Outlets; rotating
     Products to promote their sale before they become stale or off
     code; promptly removing all stale or off code Products;
     cooperating with [Weston] or its affiliates in its marketing
     programs, maintaining a computer assisted record-keeping
     system compatible with the system maintained by [Weston] now
     or in the future; and providing service on a basis consistent with
     good industry practice to all Outlets in the Sales Area requesting
     service.

       ....

                                ARTICLE 8

                              TERMINATION
       ....



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J-A23038-18


       §8.3 CURABLE BREACH: In the event of breach by [Appellant]
       other than under §8.2 [(non-curable breach)], [Weston] shall give
       [Appellant] three (3) business days written notice within which
       [Appellant] may cure the breach. If [Appellant] fails to cure such
       breach within said three (3) day period, [Weston] may thereafter
       terminate this Agreement and [Appellant] shall have no further
       right to cure; provided, further, that the parties agree that
       repeated violations constitute a chronic breach and threaten
       significant harm to [Weston], its trademarks or commercial
       reputation, and in such event [Weston] shall be entitled to
       terminate this Agreement pursuant to §8.2 and [Appellant] shall
       have no further right to cure.

The Agreement, 11/15/99, at 6, 13.

       Based on the foregoing provisions, Appellant argues that the trial court

erred in concluding that he failed to cure his breaches of the Agreement. In

support, Appellant points out that Ricky Saxon, a Weston representative who

terminated Appellant, testified that Appellant had cured the breaches.

Appellant’s Brief at 8-9.4 We disagree.

       Here, the trial court expressly found that Appellant’s repeated violations

of the Agreement constituted a chronic breach sufficient to permit Weston to

terminate the Agreement under Section 8.3. As the trial court explained:

       [Appellant] failed to cure at least four different breaches. After
       notice, [Appellant] admitted he did not deliver fresh baked
       products to Target three days a week and Sam’s Club four days a
       week. There also was no dispute that, after notice, [Appellant]
____________________________________________


4 To the extent Appellant attempts to undermine Mr. Saxon’s trial testimony
using Mr. Saxon’s preliminary injunction testimony, such issue is waived
because Appellant failed to do so in the trial court in the first instance. See
Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot
be raised for the first time on appeal.”). Appellant also may not rely on the
preliminary injunction transcript because it is not part of the certified record.
See Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005)
(noting that “this Court may not consider anything that is not part of the
certified record[.]”).

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J-A23038-18


      was unable to get Walmart to replace either Weston’s 4-sided
      sales display in the front of the store or its shelf in the deli section.
      Under the [Agreement], each of these uncured breaches was a
      sufficient reason for termination. These four breaches, plus
      additional breaches involving a Giant Eagle and a Shop N Save
      that may have been cured, also are repeat violations under the
      [Agreement] sufficient for termination. Therefore, there was
      sufficient evidence for [the trial court’s] ruling in favor of Weston,
      and the ruling was not against the weight of the evidence.

Trial Court Opinion, 5/14/18, at 4 (record citations omitted).           As stated,

Appellant himself admitted at trial that he did not cure the breaches. See

N.T. Trial, 11/1-2/17, at 85 (admitting that after receiving notice to cure, he

failed to service Sam’s Club four days per week and Target three days per

week); Id. at 143-144 (admitting that he lost the 4-sided display because of

his failure to keep it adequately stocked); Id. at 157-160 (admitting that he

lost the shelf space in the Walmart deli because of his failure to keep it

adequately stocked).

      Insofar as Mr. Saxon’s trial testimony, Appellant essentially is inviting

us to substitute our judgment for that of the trial court by accepting

Appellant’s proffered version of the facts. We decline the invitation. As noted

earlier, in a nonjury trial, the trial court sitting as the finder of fact is free to

believe all, part, or none of the evidence, and this Court will not disturb the

trial court’s credibility determinations. Voracek v. Crown Castle USA Inc.,

907 A.2d 1105, 1108 (Pa. Super. 2006), appeal denied, 919 A.2d 958 (Pa.

2007). “The trial court’s findings are especially binding on appeal, where they

are based upon the credibility of the witnesses, unless it appears that the court

abused its discretion or that the court’s findings lack evidentiary support or

that the court capriciously disbelieved the evidence.” Shaffer v. O'Toole,


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J-A23038-18



964 A.2d 420, 422–423 (Pa. Super. 2009), appeal denied, 981 A.2d 220 (Pa.

2009).

      Here, the trial court rejected Appellant’s interpretation of Mr. Saxon’s

trial testimony and declined to find that Appellant had cured the breaches.

      [The trial court] interpret[s] the testimony to mean Mr. Saxon
      thought the breaches were cured but learned later they were not
      cured. . . . . [The trial court] found Mr. Saxon credible when he
      indicated he first thought the breaches were cured but later found
      out he was mistaken as they were “not cured.” Because Mr. Saxon
      credibly testified at the trial the breaches of the [Agreement] were
      not cured, [the trial court] correctly determined [Appellant]
      breached the [A]greement.

Trial Court Opinion, 5/14/18, at 6-7.

      In sum, viewing the evidence in a light most favorable to Weston as the

verdict winner and given Appellant’s own admission and Mr. Saxon’s testimony

that Appellant failed to cure at least four breaches after receiving notice of the

same, we cannot conclude that the trial court erred in entering judgment in

Weston’s favor. Because Appellant repeatedly breached the Agreement and

failed to cure his breaches, Weston was entitled to terminate the Agreement.

The trial court, therefore, did not err in denying Appellant’s claim for a

permanent injunction. Appellant failed to establish a clear right to relief as a

matter of law.

      Judgment affirmed.




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J-A23038-18


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/7/2019




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