J-A02038-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    GERALD D. HOAK                             :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RUSSELL W. NEWTON, MERIT                   :    No. 315 MDA 2018
    SECURITIES, INC., MERIT CAPITAL            :
    ASSOCIATES, INC., MERIT CAPITAL            :
    MANAGEMENT, SOURCE CAPITAL                 :
    GROUP, INC., SOURCE SECURITIES,            :
    INC., SOURCE CAPITAL                       :
    MANAGEMENT                                 :

             Appeal from the Judgment Entered January 15, 2018
      In the Court of Common Pleas of Schuylkill County Civil Division at
                              No(s): S-1827-06

BEFORE: LAZARUS, J., DUBOW, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                         FILED: JULY 23, 2019

       Appellant Gerald D. Hoak appeals from the judgment entered in favor

of Appellees Russell W. Newton, Merit Securities, Inc.,1 Merit Capital

Associates, Inc., Merit Capital Management, Source Capital Group, Inc.,

Source Securities, Inc., and Source Capital Management following trial.2

____________________________________________


1 Merit Securities, Inc. is not a party to this appeal because Appellant withdrew
his claims against it. R.R. at 1085a. We cite to the reproduced record for the
parties’ convenience. No party has objected to the accuracy of any document
in the reproduced record.
2We collectively refer to Source Capital Group, Inc., Source Securities, Inc.,
and Source Capital Management as Source.
J-A02038-19


Appellant contends the trial court erred by refusing to remove the compulsory

nonsuit on his Pennsylvania Unfair Trade Practices and Consumer Protection

Law3 (UTPCPL) claim.          Appellant also contends that the court erred in

numerous evidentiary rulings relevant to his claim. We affirm.

        This is the third time that Appellant has appealed to this Court. We

state the background as set forth in Hoak v. Newton, 697 MDA 2009 (Pa.

Super. Sept. 8, 2010) (Hoak I) (unpublished mem.):

        In 1983, Hoak was involved in a car accident that left him
        paralyzed from the chest down. Hoak received a settlement of
        $2.5 million. Hoak hired Russell Newton (“Newton”), an executive
        at an investment advisory firm, Merit Capital Associates, as his
        financial advisor. Merit Capital sold its assets to Source Capital
        Group in 2001.[4] Hoak had entered into an investment agreement
        with Merit Capital in 1992 and then with Source Capital in 2002.[5]

        At some point, Newton introduced Hoak to Christopher Paul
        Thalacker (“Thalacker”). In 1996, Hoak gave Thalacker about
        $200,000 to invest, which ultimately increased to about $420,000
        by 1998. At that time, Hoak agreed to invest this money in a
        limited partnership hedge fund, Alta Focus Fund,[6] which was
        managed by Thalacker. Hoak was a limited partner with Alta
        Focus Fund. The Alta Focus Fund Limited Partnership Agreement
        (“the Agreement”) governed the legal relationship between
        Thalacker and Hoak and required parties to submit any dispute to
        arbitration before the AAA. Newton was not involved in Alta Focus
        Fund. The Alta Focus Fund closed in 2001.


____________________________________________


3   73 P.S. §§ 201-1 to 201-9.3.
4   Newton joined Source Capital Group.
5   Appellant identified his occupation as “investor.” R.R. at 786a, 788a.
6   Appellant also refers to the Alta Focus Fund as the Thalacker Fund.


                                           -2-
J-A02038-19


        In 200[6], Hoak filed suit against the above-named parties,
        including Thalacker and the Newton Defendants.[fn3] All of the
        named defendants had a connection with money Hoak invested in
        the various accounts. In his suit, Hoak claimed that he lost
        approximately $570,000 in the Alta Focus Fund. Hoak also
        claimed that the Newton Defendants mismanaged other
        investments unrelated to the Alta Focus Fund.

               The “Newton Defendants” include Newton, Merit Securities,
           [fn3]

           Inc., Merit Capital Associates, Inc., Merit Capital Management,
           [Source], and former officers and directors of these entities,
           including Robert Fitzpatrick, David W. Harris, and Bruce C.
           Ryan.[7]

Hoak I, at 2-3 (some footnotes omitted).

        Appellant raised thirty-three claims in his 2006 lawsuit, of which we

quote his UTPCPL count, his twenty-second claim, as follows:

        463. [Appellant] procured from [Appellees], goods and services
        protected under 73 P.S. § 201-1 to 73 P.S. § 201-9.2 in the form
        of financial services, tax advice, brokerage services, and
        investment advisory services for household and personal use. A
        true and correct copy of cited sections of the UTPCPL are attached
        as Exhibit “X” and, incorporated by this reference as though the
        same were set forth herein verbatim.

        464. [Appellant] is thereby entitled to protection and relief under
        the UTPCPL for damages to his personal property. See attached
        Exhibit “X.”

        465. . . . Source . . . defendants made materially false or
        misleading statements and promises, or omitted to state material
        facts necessary to make their statements to [Appellant] not
        misleading.

        466. [Appellant] justifiably relied on the false representations
        made by . . . Source . . . defendants.


____________________________________________


7   Hoak later settled with Fitzpatrick, Harris, and Ryan. R.R. at 550a.


                                           -3-
J-A02038-19


        467. Under the UTPCPL, treble damages are applicable as
        exemplary damages. See attached Exhibit “X.”

        468. [Appellees’] actions were continuous, repeated, and ongoing,
        and thereby constitute intentional, outrageous, and malicious
        conduct for which [Appellant] is entitled to exemplary damages.

        WHEREFORE, [Appellant] respectfully demands unliquidated
        damages in excess of $1,800,000.00 under UTPCPL §§ 201-1
        through 201-9.2, treble damages, attorney fees and costs for
        prosecuting this action, rescission, and any further just and
        equitable relief as the court deems appropriate.

R.R. at 98a-99a.8

        In February 2008, Thalacker filed a Petition to compel arbitration
        pursuant to the Agreement. Hoak opposed the Petition arguing
        that the Newton Defendants were intertwined with the Thalacker
        matter and therefore should be made part of the arbitration.[9]
        Hoak further argued that the case should not proceed to
        arbitration because he had already spent time and money on the
        litigation. On May 1, 2008, the trial court rejected Hoak’s
        arguments, finding that no discovery had been conducted, and
        granted the Petition to compel AAA arbitration.         Hoak filed
        reconsideration Motions seeking a hearing closer to his home than
        New York City due to his health problems. The trial court denied
        these Motions. On June 17, 2008, this Court, in a per curiam
        order, denied review of the case because it was an interlocutory
        appeal.

        Hoak thereafter filed an arbitration claim with the Financial
        Industry Regulatory Authority (“FINRA”)[10] since it could
____________________________________________


8   Appellant’s complaint spanned 628 paragraphs over 100 pages.
9Appellant again challenged the exclusion of the Newton Defendants from the
arbitration in Hoak v. Newton, 1931 MDA 2011 (Pa. Super. Oct. 5, 2012)
(unpublished mem.) (Hoak II), which is discussed below.
10“FINRA is responsible for regulatory oversight of all securities firms that do
business with the public, and has the power to initiate a disciplinary
proceeding against any FINRA member for violating any FINRA rule.”



                                           -4-
J-A02038-19


       guarantee that the arbitration hearing would be conducted near
       Hoak’s home and not in New York City. On October 27, 2008,
       Thalacker filed a Motion for contempt and a Motion to stay the
       FINRA proceedings, arguing that the Agreement required AAA
       arbitration. The trial court granted Thalacker’s Motion to stay on
       November 14, 2008.

       On December 5, 2008, Thalacker filed an arbitration claim with
       AAA. In response, Hoak filed a Motion to compel the Newton
       Defendants into the Thalacker arbitration. Hoak claimed that
       Thalacker was employed by the Newton Defendants at the time
       Thalacker was operating the Alta Focus Fund. Hoak also filed two
       Motions to stay the AAA arbitration pending resolution of the
       Motion for contempt and the resolution of the Motion to compel
       the Newton Defendants into the AAA arbitration. The trial court
       granted the Motion for contempt. Thereafter, the trial court issued
       three Orders, the subject of this appeal, which denied the stay
       Motions and denied the Motion to compel the Newton Defendants
       into the Thalacker arbitration. The trial court determined that the
       Newton Defendants were not parties to the Agreement and could
       not be bound by its terms.

Hoak I, at 3-4 (some footnotes omitted).

       Appellant timely appealed from the three orders above, but while that

appeal was pending, the following events occurred:

       In the interim, the matter proceeded to arbitration and was
       scheduled for a hearing on July 20, 2009, at the AAA offices in
       Philadelphia. Neither Hoak nor his attorney sought alternative
       arrangements, including requesting a different location or
       different conditions, for the hearing. At the arbitration hearing,
       neither Hoak nor his counsel appeared. However, the record was
       kept open for three weeks to allow Hoak the opportunity to
       present evidence to support his claims. Hoak did not present any
       evidence.    On September 14, 2009, the arbitrator granted
       Thalacker a declaratory judgment on each cause of action against
       him and awarded him $31,615 in fees and expenses. On October

____________________________________________


NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 310 (Pa.
Super. 2012) (quotation marks and citation omitted).


                                           -5-
J-A02038-19


      13, 2009, Hoak filed a Motion to vacate the arbitration award in
      the trial court. On November 2, 2009, Thalacker filed a response
      to Hoak’s Motion and filed a Motion to confirm the arbitration
      award. These matters were pending before the trial court at the
      time the appellate briefs in this case were filed.

Id. at 5. The Hoak I Court dismissed the appeal as moot because it could

grant no relief given the arbitration had concluded. Id. at 7-8.

      Meanwhile, the trial court denied Appellant’s motion to vacate the

arbitration award and granted Thalacker’s motion to confirm the arbitration

award. “The trial court also granted the ‘request for dismissal of the causes

of action against . . . Thalacker in the First Amended Complaint’ and dismissed

Hoak’s action with prejudice.    Order, 10/3/11.”    Id. at 5 n.1.   Appellant

appealed, challenging various aspects of the arbitration award. See id. at 5-

6. Two such issues involved “the trial court’s denial of his second motion for

special relief, which entailed the compelling of the Newton Defendants to

arbitrate in the Thalacker arbitration.” See id. at 13. Appellant also argued

that the “Pennsylvania Securities Act and FINRA prohibit[ed] independent

contractor status.”   Id. at 14.    The Hoak II Court affirmed, and the

Pennsylvania Supreme Court denied Appellant’s petition for allowance of

appeal. Hoak v. Newton, 382 MAL 2013 (Pa. Nov. 15, 2013).

      Subsequently, the case proceeded to a trial, at which the trial court

determined the UTPCPL claim and a jury addressed the remaining claims

against Appellees. As stated above, Appellant’s UTPCPL claim alleged material

false or misleading statements or omissions regarding various investments.


                                     -6-
J-A02038-19


One such example was a $475,000 investment in Stansbury Holdings

Company, which controlled a vermiculite and garnet mine in Montana.

       After Appellant rested his case-in-chief, Appellees moved for nonsuit.

Over Appellant’s objection, the trial court granted Appellees’ motion in part by

dismissing, among other things, Appellant’s UTPCPL claim:

       [T]he UTPCPL claim is dismissed. . . . This is more than just a
       simple consumer transaction. This is a long-term investment
       relationship that existed from 1991 right up until practically 2006
       when suit was filed. So . . . that’s being dismissed. That’s not
       within the ambit of the act as I read it and the cases I’ve read. So
       that’s granted. That’s out.

R.R. at 1070a.

       Appellees then presented their case, at the conclusion of which they

moved for a directed verdict on all claims.         Id. at 1353a.   The trial court

granted Appellees’ motion in part and dismissed Appellant’s fraud and

negligence claims, leaving a breach of contract claim for the jury to resolve.

Id. at 1396a, 1403a-05a. On November 30, 2017, the jury found in favor of

Appellees on the breach of contract claim. Id. at 1549a.

       On Monday, December 11, 2017, Appellant timely filed a post-trial

motion requesting the removal of the nonsuit or a new trial, which the trial

court denied on December 18, 2017.               Id. at 530a.   The court entered

judgment on January 15, 2018,11 and Appellant timely appealed on February


____________________________________________


11The judgment, although dated January 12, 2018, was docketed on January
15, 2018.


                                           -7-
J-A02038-19


12, 2018. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement.

Id. at 541a-46a.

      Appellant raises the following issues:

      1. . . . Did the trial court err as a matter of law and abuse its
      discretion by declaring “there was no compelling evidence even by
      a preponderance of the evidence standard to lead the court to
      conclude that the [Appellees] had violated the UTPCPL”[?]

      2. . . . Did the trial court err as a matter of law and abuse its
      discretion by dismissing Appellant’s claims against [Appellees] for
      losses suffered by [Appellant] in the Thalacker Fund?

Appellant’s Brief at 5 (some capitalization omitted).

      Briefly, in support of his first issue, Appellant claims that the trial court

erred by entering compulsory nonsuit on his UTPCPL claim. Id. at 12. In

support, Appellant asserts that the court misapplied the appropriate standard

of review for entering nonsuit when it stated that it found no “compelling”

evidence to sustain Appellant’s UTPCPL claim.        Id. at 13.    Appellant also

contends that trial court’s evidentiary rulings relevant to his UTPCPL claim

were improper, evinced the trial court’s bias, and should have precluded the

entry of compulsory nonsuit. Id. at 13-14.

      For his second issue, Appellant claims that the trial court erred in

granting Appellees’ motion in limine to preclude Appellant from presenting any

evidence related to Thalacker. Id. at 14-15. Appellant asserts that this ruling

prohibited him from establishing his “claims against [Appellees] as respondeat

superior in any trial of [his] claims against [Appellees] for Thalacker[’s] frauds

and failures.” Id. at 15-16 (some capitalization omitted).

                                      -8-
J-A02038-19


     1. Appellant’s Issue Regarding Nonsuit on his UTPCPL Claim

                            a. Nonsuit Generally

      As to Appellant’s initial issue regarding nonsuit, Appellant refers this

Court to a single sentence in the trial court’s Rule 1925(a) decision justifying

nonsuit:   “However,    there   was   no   compelling    evidence   even       by   a

preponderance of the evidence standard to lead the Court to conclude that

Newton Defendants had violated the UTPCPL.” Id. at 20 (quoting Trial Ct.

Op., 4/16/18, at 8). In support, Appellant cites Boehm v. Riversource Life

Ins. Co., 117 A.3d 308, 323 (Pa. Super. 2015), which reiterates the

preponderance-of-the-evidence burden of proof.

      Generally, we review an order granting nonsuit as follows:

      A trial court may enter a compulsory nonsuit on any and all causes
      of action if, at the close of the plaintiff’s case against all
      defendants on liability, the court finds that the plaintiff has failed
      to establish a right to relief. Absent such finding, the trial court
      shall deny the application for a nonsuit. On appeal, entry of a
      compulsory nonsuit is affirmed only if no liability exists based on
      the relevant facts and circumstances, with appellant receiving the
      benefit of every reasonable inference and resolving all evidentiary
      conflicts in [appellant’s] favor.      The compulsory nonsuit is
      otherwise properly removed and the matter remanded for a new
      trial. The appellate court must review the evidence to determine
      whether the trial court abused its discretion or made an error of
      law.

Baird v. Smiley, 169 A.3d 120, 124 (Pa. Super. 2017) (citations and

quotation marks omitted).

      Instantly, as noted above, the trial court entered nonsuit based on its

determination that Appellant’s investment in the Stansbury mine was “more


                                      -9-
J-A02038-19


than just a simple consumer transaction” and that “a long-term investment

relationship that existed from 1991 right up until practically 2006 when suit

was filed.” R.R. at 1070a. Indeed, the trial court concluded that the evidence

established Appellant was a knowing and intelligent investor who assumed the

risk of loss. Trial Ct. Op. at 8-9. Appellant’s appellate argument, however,

does not directly challenge either conclusion.

       Instead, Appellant claims that the court, in light of its evidentiary

rulings, misapplied the proper preponderance-of-the-evidence standard for

entering nonsuit. We do not, however, conclude the trial court erred based

on a single sentence in its Rule 1925(a) opinion.       Appellant’s citation to a

single legal authority, Boehm, merely repeats the applicable burden of proof

and alone is not persuasive. Absent citation to and discussion of relevant legal

authorities, see Pa.R.A.P. 2119, Appellant does not establish trial court error

based on the court’s perhaps inartful use of the adjective “compelling” to

describe “evidence” actually presented by Appellant during his case-in-chief.12

____________________________________________


12 Appellant’s reply brief expanded upon his original argument. See
Appellant’s Reply Brief at 4-22. We are constrained, however, to disregard
the new theories presented in his reply brief.

       The Pennsylvania Rules of Appellate Procedure make clear that an
       “appellant may file a brief in reply to matters raised by appellee’s
       brief not previously raised in appellant’s brief.” Pa.R.A.P. 2113(a).
       Thus, an appellant is prohibited from raising new issues in a reply
       brief. Moreover, a reply brief cannot be a vehicle to argue issues
       raised but inadequately developed in appellant’s original brief.
       When an appellant uses a reply brief to raise new issues or remedy



                                          - 10 -
J-A02038-19


    b. Appellant’s Evidentiary Issues Regarding His UTPCPL Claim

       Next, Appellant       challenges        the   trial court’s evidentiary   rulings.

Appellant contends the trial court created unfair trial proceeding and was “all

too eager to help the highly educated, investment advisor [Appellant] testify”

to the jury. Appellant’s Brief at 19. Appellant argues “it is no wonder that the

court found . . . Newton ‘credible’” and that the court, as a result, applied the

wrong standard of proof when entering nonsuit. Id. at 19-20.

       As Appellant is appealing from the denial of his motion for a new trial,

the standard of review for these issues is as follows:

       [I]t is well-established law that, absent a clear abuse of discretion
       by the trial court, appellate courts must not interfere with the trial
       court’s authority to grant or deny a new trial.

       Thus, when analyzing a decision by a trial court to grant or deny
       a new trial, the proper standard of review, ultimately, is whether
       the trial court abused its discretion.

       Moreover, our review must be tailored to a well-settled, two-part
       analysis:

       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


____________________________________________


       deficient discussions in an initial brief, the appellate court may
       suppress the non-complying portions.

Commonwealth v. Fahy, 737 A.2d 214, 218 n.8 (Pa. 1999) (some citations
omitted).



                                          - 11 -
J-A02038-19


       whether the trial court abused its discretion in ruling on the
       request for a new trial.

Gurley v. Janssen Pharm., Inc., 113 A.3d 283, 288-89 (Pa. Super. 2015)

(citation, formatting, and ellipses omitted).      Because the alleged mistake

involved an evidentiary issue, we note that “the admissibility of evidence is

within the sound discretion of the trial court, and we will not disturb an

evidentiary ruling absent an abuse of that discretion.” Commonwealth v.

Arrington, 86 A.3d 831, 842 (Pa. 2014) (citation omitted).

                             (1) Admission of Liability

       Appellant contends that the trial court erred in redacting portions of an

email, which Appellant characterized as an admission of liability. Appellant’s

Brief at 24. Before summarizing Appellant’s argument, we state the following

as background. Appellant claimed that between the years 2000 and 2001,

Newton and others misrepresented the financial status of Stansbury as a

viable garnet and vermiculite mine. As a result of their misrepresentations,

Appellant argued that Newton manipulated him into executing five private

placements13 with Stansbury, totaling $475,000. R.R. at 710a-11a. Appellant

asserts that Stansbury was not a viable mine, which resulted in Appellant

losing his entire investment by 2006.


____________________________________________


13“A ‘private placement’ is a sale of securities to a relatively small number of
select investors as a way of raising capital, as opposed to a ‘public issue,’
whereby securities are made available for sale on the open market.” In re
Bocchino, 794 F.3d 376, 378 n.2 (3d Cir. 2015).


                                          - 12 -
J-A02038-19


     In August 2006, Newton wrote the below email to Appellant:

     [Appellant],

     I’m really sorry you feel that way because I did do my best to try
     to help you. As I’ve told you many times, I do feel a responsibility
     to you for Stansbury, and I’d like to try to have a conversation
     with you to figure out how to handle it. As you know, I lost a lot
     of money in that deal too, and I continue to work at recovering
     what ever [sic] I can for your benefit, not mine. That situation is
     a mess, there’s no doubt. I’ve even spent many hours testifying
     before the SEC because they are going after management and the
     auditors of the company for inflating their assets artificially.
     Believe me, if I’d known there was anything funny with the
     company, neither you or I would be in this position. Your lawyer
     seems like a reasonable guy, but all lawyers take a big piece of
     the pie for negotiating a deal that you and I should be able to do
     without him. You know in your heart what went wrong, just like
     I do. I’d like to sit down with you, show you all the facts and
     figures, and work out a way to do what is right for you and me.
     I’m sure Rich told you that those are my honest feelings, and I’ve
     expressed that same feeling of responsibility to you before. I have
     always intended to find a way to make it up to you. But we need
     to find a way that doesn’t jeopardize my ability to hold up my end
     of that bargain. Quickly filing a suit would put me out of business,
     and wouldn’t help you either. I truly hope you can find a way for
     us to communicate directly about this. It will result in the best
     outcome for both of us. [Appellant], your trust in me is not
     wasted, give me a chance to show you that. Please give me a
     call. I’ll drive down to see you next week if you’d prefer that.

     Thanks,
     [Newton]

R.R. at 198a.




                                    - 13 -
J-A02038-19


        At trial, Appellant sought to introduce the above email, but Appellees

objected on the basis that the email was precluded by Pa.R.E. 40814 as a

settlement offer. Id. at 946a. The trial court initially sustained Appellees’

objection, but permitted Appellant’s counsel to preserve his argument for the

record. Id. Appellant first noted that the court could “redact as much as [it]

want[s],” but that the email should be admitted to establish Appellant was on

notice of Newton’s alleged fraud in August 2006 and as an admission of

Newton’s liability under Pa.R.E. 803(25).            Id. at 946a-48a.    The court

essentially stated it would reconsider its ruling and issue a new ruling after a

lunch recess. Id. at 948a.

        Subsequently, the trial court reasoned as follows:

        We’ve taken your arguments into consideration using our best
        judgment. . . . I’ve redacted this to reflect that the area that’s
        not redacted would be allowed . . . with regards to the e-mail.


____________________________________________


14   Pennsylvania Rule of Evidence 408(a) states:

        (a) Prohibited Uses. Evidence of the following is not
        admissible—on behalf of any party—either to prove or disprove
        the validity or amount of a disputed claim or to impeach by a prior
        inconsistent statement or a contradiction:

           (1) furnishing, promising, or offering—or accepting, promising
           to accept, or offering to accept—a valuable consideration in
           compromising or attempting to compromise the claim; and

           (2) conduct or a statement              made   during   compromise
           negotiations about the claim.

Pa.R.E. 408(a).


                                          - 14 -
J-A02038-19


     Apparently it’s an e-mail from [Newton to Appellant]. It says, “I’m
     really sorry you feel that way because I did my best to try to help
     you. As I’ve told you many times, I do feel a responsibility to you
     for Stansbury. And I’d like to try to have a conversation with you
     to figure out how to handle it. As you know, I lost a lot of money
     in that deal, too, and I continue to work at recovering whatever I
     can for your benefit, not mine. That situation is a mess, there is
     no doubt.”

     And then everything else is redacted except for down below. It
     says, “I’ve always intended to find a way to make it up to you.”

     Now, we’re admitting that as, for two reasons, an admission
     against—or we’re going to allow [Appellant] to question [Newton]
     with regard to that . . . for two reasons. It is an admission against
     interest. It appears to be. And secondly, it also goes to the
     statute of limitations argument that has been advanced. And it’s
     part of this case right now.

     So for those reasons, we’re going to allow it. We’ll grant you an
     exception [Appellees] and grant you an exception, too,
     [Appellant].

Id. at 953a-54a.

     Appellees renewed their objection that the email was precluded under

Pa.R.E. 408. Appellees also raised an objection that the redacted email still

included the phrase, “I have always intended to find a way to make it up to

you,” which they construed as an offer of compromise. Id. at 955a. Appellant

did not raise or renew any objection about the extent of the redaction.

     The trial court therefore admitted the following redacted version of the

email:

     I’m really sorry you feel that way because I did do my best to try
     to help you. As I’ve told you many times, I do feel a responsibility
     to you for Stansbury, and I’d like to try to have a conversation
     with you to figure out how to handle it. As you know, I lost a lot
     of money in that deal too, and I continue to work at recovering

                                    - 15 -
J-A02038-19


       what ever [sic] I can for your benefit, not mine. That situation is
       a mess, there’s no doubt. . . . I have always intended to find a
       way to make it up to you.

Id. at 1785a (redacted email admitted at trial).

       On appeal, Appellant contends that the trial court erred by excluding the

redacted portions under Pa.R.E. 408 or 803(25). Appellant’s Brief at 26. In

Appellant’s view, the redacted statements were outside the scope of Rule 408.

Appellant, however, did not argue that the error resulted in sufficient prejudice

as to justify a new trial. See Gurley, 113 A.3d at 288-89.

       Here, even if the unredacted email was admissible under Rule 408 or

803(25), Appellant has not articulated how he was prejudiced.                See

Appellant’s Brief at 24-26.         Accordingly, Appellant has waived his claim

because we cannot address whether the error resulted in prejudice that would

justify reversing a motion for a new trial.15 See Gurley, 113 A.3d at 288-89.

                              (2) Leading Testimony

       Appellant next argues the trial court erred by permitting Newton’s

counsel to lead Newton’s testimony and Newton to read his testimony.

Appellant’s Brief at 28. Appellant’s brief quotes thirteen pages of testimony

in support.16     Id. at 28-40.      Appellant summarily claims the trial court’s

____________________________________________


15 We add that although the court noted Appellant had an unspecified
exception, Appellant did not specifically object to the court redacting the
document. See R.R. at 946a, 954a; Pa.R.A.P. 302(a).
16 The disputed testimony occurs after Appellant had rested and the court
granted Appellees’ motion to dismiss Appellant’s UTPCPL claim. R.R. at 1070a.


                                          - 16 -
J-A02038-19


acquiescence to leading questions conveyed the impression to the jury that

the court was biased. Appellant’s Brief at 40-41.

      We review a trial court’s decision to permit leading questions for an

abuse of discretion.   Katz v. St. Mary Hosp., 816 A.2d 1125, 1128 (Pa.

Super. 2003) (“The allowance of leading questions lies within the discretion of

the trial court and a court’s tolerance or intolerance of leading questions will

not be reversed absent an abuse of discretion.” (citation omitted)); see

generally Pa.R.E. 611(c).

      On appeal, Appellant has limited his appellate arguments to the trial

court’s decision to grant nonsuit on his UTPCPL claim. See Appellant’s Brief

at 16. Therefore, the disputed leading testimony, which occurred following

the nonsuit, even if erroneous, could not have affected the court’s decision to

grant nonsuit.   See Garner v. Pa. Human Relations Comm’n, 16 A.3d

1189, 1204 n.13 (Pa. Super. 2011) (holding error that does not alter outcome

of motion for nonsuit is harmless error).

                       (3) FINRA and SEC Documents

      Appellant contends that the trial court erred in refusing to admit FINRA

and SEC documents regarding Newton. By way of background, on September

8, 2017, Appellant filed a motion in limine to have the court admit Newton’s




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“FINRA Broker Dealer Report” and “SEC Investment Adviser Representative

Public Disclosure Report” under Pa.R.E. 404(b)(2).17 R.R. at 366a.

       The FINRA Broker Dealer Report is a thirty-three page document

detailing Newton’s employment history and disciplinary actions against him,

including his disbarment. Id. at 375a. Newton’s FINRA report discloses five

regulatory actions, three settled customer disputes, and one ongoing

customer dispute (the instant litigation).         Id. at 374a-401a.   The report

includes summaries of the allegations that led to the actions or disputes. Id.

For example, the report entry for July 28, 2017, follows:

       Without admitting or denying the findings, Newton consented to
       the sanction and to the entry of findings that he refused to provide
       on-the-record testimony in connection with an investigation into
       potential securities law violations during the time Newton was
       associated with his member firm.

Id. at 383a.       Another entry, dated July 14, 2014, addressed improper

supervision of subordinates regarding private placements in the oil and gas

industry.    Id. at 386a, 389a.        The remaining three entries for regulatory

actions, dating between 1999 and 2001, detail the sale of unregistered

securities by unlicensed subordinates and improper commission payments.

Id. at 394a-95a.       The three settled customer disputes regarded failure to



____________________________________________


17 Pa.R.E. 404(b)(2) provides that “[e]vidence of a crime, wrong, or other act”
“may be admissible for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident.” Pa.R.E. 404(b)(1)-(2).


                                          - 18 -
J-A02038-19


supervise private placements in the oil and gas industry between 2000 and

2008. Id. at 398a-99a.

      Newton’s SEC Investment Adviser Representative Public Disclosure

Report similarly lists his employment history and qualifications. Id. at 407a-

13a. The SEC report does not disclose any disciplinary actions.

      In his motion in limine in support of the admission of the FINRA and SEC

reports, Appellant claimed:

      Virtually every investment except for one investment that Newton
      sold [Appellant] was a fraud or failure costing [Appellant] over
      $900,000.      In all of these investments Newton profited
      handsomely while [Appellant’s] savings were plundered. Through
      these investments Newton broke laws, rules and regulations for
      which he is now, and finally after decades of violations, barred
      from the securities industry and also barred as an investment
      adviser. Newton is barred because he refuses to provide on-the-
      record testimony in connection with an investigation into
      securities law violations during the time Newton was associated
      with Source.

Id. at 369a-70a. In Appellant’s view, “Newton[’s] conduct over the decades

ending with his permanent barring is exactly the type of evidence [Rule]

404(b)(2) identifies as relevant, namely Newton’s ‘motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.’” Id. at 373a (quoting Pa.R.E. 404(b)(2)).

      On October 23, 2017, the trial court denied Appellant’s motion as

follows:

      The FINRA Record submitted by [Appellant] reflects that the
      Defendant, Newton[,] had regulatory action taken in 1999 and
      2016 but the same are not relevant to the facts as presented by
      [Appellant] in this litigation. [Appellant] also presented the FINRA

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J-A02038-19


      Record confirming that the Defendant, Newton, voluntarily
      consented to the surrender of his FINRA license on July 26, 2017
      with the provision that “nothing in this provision affects my: (i)
      testimonial obligation; or (ii) right to take legal or factual positions
      in litigation or other legal proceedings in which FINRA is not a
      party.” As such, the FINRA Record specifically leads to the
      conclusion that Defendant surrendered his license via consent
      without Newton admitting or denying any findings and it does not
      constitute a final Order based on violations of any laws or
      regulations that prohibit fraudulent, manipulative or deceptive
      conduct.

Id. at 462a-63a; accord id. at 2197a.

      On appeal, Appellant believes the trial court erred by denying his motion

in limine to admit Pa.R.E. 404(b)(2) evidence. Appellant’s Brief at 22. The

court, Appellant argues, should have admitted such evidence to counter

testimony about Newton’s good character and undermine Newton’s credibility.

Id. at 22-23. In Appellant’s view, if he was permitted to impeach Newton

with the Rule 404(b)(2) evidence, then he would have had a fair trial. Id. at

23.

      It is well settled that

      Pennsylvania Rule of Evidence 404(b) provides that “[e]vidence of
      other crimes, wrongs, or acts is not admissible to prove the
      character of a person in order to show action in conformity
      therewith.” Pa.R.E. 404(b)(1). Such evidence may be admitted,
      however, if offered for a valid purpose such as proving the
      existence of a common scheme, establishing an individual’s
      motive, intent, or plan, or [identity, among other things]. Pa.R.E.
      404(b)(2).




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J-A02038-19


Arrington, 86 A.3d at 842 (citation omitted).18 If the appellant establishes

the trial court erred by refusing to admit evidence under Rule 404(b)(2), the

appellant must then establish the error was sufficiently prejudicial as to

warrant a new trial. See id.; Gurley, 113 A.3d at 288-89.

       In Homewood People’s Bank v. Marshall, 72 A. 627 (Pa. 1909), the

plaintiff claimed the defendant transferred property to his brothers to defraud

his creditors. Marshall, 72 A. at 629. Following a jury verdict in favor of the


____________________________________________


18In Jamestown Iron & Metal Co. v. Knofsky, 154 A. 15 (Pa. 1930), the
Pennsylvania Supreme Court explained that

       the falsity of one [act] cannot be proved by a comparison with the
       other [act], nor could a presumption of falsity be thus raised. A
       distinct act or crime, alleged to have been committed by the
       accused at a given time, cannot be proved by showing the
       performance by him of another similar act at a different time.
       There are many reasons why such proofs are rejected by the
       courts . . . and it is not necessary to restate them.

       But, once the substantive fact of falsity is established, evidence of
       prior or subsequent acts of the same nature is admissible to show
       knowledge of falsity and intention that plaintiff should act in
       reliance on it. This may be done by producing an admission such
       as contained in the plea of guilty, where the indictment charged a
       similar false statement at another time, or it may be shown by
       any other false statements of the same general scope made at
       another time. Such evidence does not prove the substantive fact
       of falsity, but does tend to prove elements of knowledge and
       intention. Former and subsequent acts are admissible in evidence
       to show knowledge and intent as to like or similar acts.

Id. at 16-17 (citations omitted). We may rely on cases predating the
enactment of the Pennsylvania Rules of Evidence to the extent they are
consistent with the rules. Commonwealth v. Aikens, 990 A.2d 1181, 1185
n.2 (Pa. Super. 2010).


                                          - 21 -
J-A02038-19


plaintiff, the defendant appealed, alleging the trial court erred by admitting

evidence of three similar property transfers later that year by the defendant.

Id. The Marshall Court affirmed the admission of the evidence, reasoning

that the evidence of the similar fraudulent property transfers tended to

establish a common purpose or design. Id. at 630.

      Here, however, unlike the plaintiff in Marshall, Appellant has not

discussed any of the five regulatory actions or three settled customer disputes

and explained how they were fraudulent or tended to establish a common

purpose or design. See Arrington, 86 A.3d at 842; Knofsky, 154 A. at 16-

17; cf. Marshall, 72 A. at 629; see generally R.R. at 386-99a. Appellant

repeats the phrase “motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.”     Appellant’s Brief at 23.

Appellant, however, simply does not articulate how any of the acts (private

placements in the oil and gas industry and failure to supervise the sale thereof,

sale of unregistered securities by unlicensed subordinates, and improper

commission payments, see R.R. at 386a-99a), are similar to the actions that

underlie Appellant’s UTPCPL claim. See Arrington, 86 A.3d at 842; Knofsky,

154 A. at 16-17.

      In any event, Appellant could not establish any such similarity.       The

regulatory actions and customer disputes are summarized by FINRA.           See

generally R.R. at 386-99a.      The summaries lack, and Appellant does not

elaborate on, any of the details of the disputed private offerings of oil and gas


                                     - 22 -
J-A02038-19


securities or supervision of subordinates selling unregistered securities. See

generally id.        Although Appellant emphasizes that Newton voluntarily

consented to the surrender of his FINRA license, Appellant did not explain the

facts that led to the surrender or provide any additional detail about the events

such that the FINRA report fell within the scope of Rule 404(b)(2).          See

Arrington, 86 A.3d at 842.

       Therefore, Appellant failed to establish the trial court erred in denying

his motion in limine to admit the FINRA report under Rule 404(b)(2). It follows

that his derivative arguments that such evidence could have been used to

challenge Newton’s credibility also fail.19

     2. Appellant’s Evidentiary Issues Regarding the Thalacker Fund

       Lastly, Appellant claims that the trial court erred in prohibiting him from

presenting evidence regarding Thalacker and Appellees’ responsibility for

Thalacker’s alleged misdeeds. By way of background, as noted by the Hoak

I Court, Appellant did not appear at the July 2009 arbitration hearing for his

claims against Thalacker, and the arbitrator found in Thalacker’s favor. The

trial court entered an order dismissing all of Appellant’s claims against

Thalacker.


____________________________________________


19Appellant also suggests that the exclusion of evidence to rebut matters in
Appellees’ case-in-chief prejudiced the court’s consideration of Appellees’
motion for nonsuit. As noted above, however, alleged errors during Appellees’
case-in-chief cannot be said to have prejudiced Appellant as to the nonsuit
entered on UTPCPL claim.


                                          - 23 -
J-A02038-19


      In the instant litigation, on September 8, 2017, Appellees filed a motion

in limine to preclude relitigation of issues resolved in the Thalacker arbitration.

Appellees argued that Appellant was collaterally estopped from relitigating any

claims resolved by the arbitrator. The court agreed and granted Appellees’

motion.

      On appeal, Appellant raises two arguments. First, Appellant argues that

the trial court erred by disregarding the doctrines of respondeat superior and

vicarious liability in holding that the Newton Defendants were not necessary

and indispensable parties to the Thalacker arbitration. Appellant’s Brief at 46.

In support, Appellant reiterates the argument he made in Hoak II: the

Pennsylvania Securities Act prohibits independent contractor status. Id. at

44. Second, Appellant similarly argues that the court erred by excluding his

claims against Thalacker on the basis of collateral estoppel and res judicata.

Id. at 47, 52.

      This Court has explained collateral estoppel as follows:

      a collateral estoppel claim will succeed only with the concurrence
      of four conditions. Collateral estoppel applies when the issue
      decided in the prior adjudication was identical with the one
      presented in the later action, there was a final judgment on the
      merits, the party against whom the plea is asserted was a party
      or in privity with a party to the prior adjudication, and the party
      against whom it is asserted has had a full and fair opportunity to
      litigate the issue in question in the prior adjudication.

Levitt v. Patrick, 976 A.2d 581, 589 (Pa. Super. 2009) (citation omitted).

The law of the case doctrine is similar:




                                      - 24 -
J-A02038-19


        The law of the case doctrine expresses the practice of courts
        generally to refuse to reopen what has been decided. The doctrine
        is composed of a collection of rules that not only promote the goal
        of judicial economy but also operate (1) to protect the settled
        expectations of the parties; (2) to insure uniformity of decisions;
        (3) to maintain consistency during the course of a single case; (4)
        to effectuate the proper and streamlined administration of justice;
        and (5) to bring litigation to an end.

Bienert v. Bienert, 168 A.3d 248, 254 (Pa. Super. 2017) (citations

omitted).20 “As a general proposition, a court should not revisit questions it

has already decided.” Id. at 255 (brackets and citation omitted).

        Here, we agree with the trial court that Appellees have fulfilled the

required elements of collateral estoppel. Appellant is raising an issue that was

resolved in Hoak II, there was a final judgment in Hoak II, Appellant was

also a party in Hoak II, and Appellant litigated the issue in Hoak II. See

Hoak II at 14-17. Because collateral estoppel applies, Appellant’s claim fails.

See Levitt, 976 A.2d at 589. Moreover, the law of the case doctrine bars

relitigation of an issue finally resolved six years ago. See Bienert, 168 A.3d



____________________________________________


20   As the Bienert Court observed:

        Law of the case doctrine saves both litigants and the courts from
        duplications of effort. If permitted to argue and brief the same
        issue repeatedly during the course of the same litigation, some
        litigants would be indefatigable in their efforts to persuade or to
        wear down a given judge in order to procure a favorable ruling.
        Such use of clients’ finances, legal counsels’ time and energy, and
        judicial resources is wasteful from a systemic perspective.

Bienert, 168 A.3d at 254 (citation omitted).


                                          - 25 -
J-A02038-19


at 254-55. Having discerned no error of law or abuse of discretion in the trial

court’s denial of Appellant’s motion for a new trial, we affirm the judgment

below.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/23/2019




                                    - 26 -
