J.A19038/14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


LISA C. EPPS AND KELLY MORRISEY,            :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellees         :
                                            :
                    v.                      :
                                            :
ENTERPRISE BANK,                            :
                                            :
                          Appellant         :     No. 1733 WDA 2013


                 Appeal from the November 22, 2013 Judgment
               In the Court of Common Pleas of Allegheny County
                       Civil Division No(s).: AR 11-008949

BEFORE: BENDER, P.J.E., OLSON, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                          FILED APRIL 22, 2015

        Appellant, Enterprise Bank, appeals from the judgment1 entered in the

Allegheny County Court of Common Pleas in the amount of $5,850.00 in

favor of Appellees, Lisa C. Epps and Kelly Morrisey. Appellant contends the

court erred in (1) finding there was sufficient evidence to establish that it

was liable for a stolen vehicle located on its property; (2) awarding damages

to Appellee Morrissey; and (3) ruling in favor of Appellees prior to Appellant

*
    Former Justice specially assigned to the Superior Court.
1
  Appellant purported to appeal from the order dated October 8, 2013
denying the motion for post-trial relief. An appeal lies from the entry of
judgment, not from the order denying the motion for post-trial relief.
Accordingly, we have amended the caption. Pa.R.A.P. 905(a)(5); see
Health Care & Ret. Corp. of Am. v. Pittas, 46 A.3d 719, 721 n.1 (Pa.
Super. 2012).
J. A19038/14


presenting any evidence. We affirm the judgment as to Appellee Epps. We

vacate and remand for the court to enter judgment in favor of Appellee Epps

only.

        Appellee Epps initially filed a complaint in the Magisterial District Court

and judgment was entered on December 13, 2011, in favor of Appellees.

Appellant filed an appeal.     On January 23, 2012, Appellees filed a pro se,

handwritten one-paragraph complaint stating as follows:

           My vehicle was at Enterprise property where it was left to
           be repaired. (Viviandi Motors). After learning of the
           owners/mechanics passing. The vehicle was still located at
           the repair shop. We were told enterprise bank foreclosed
           on property & current owner. The vehicle was stolen from
           Enterprise property.

Complaint, 1/23/12.2      Appellant filed preliminary objections in the nature of

a demurrer.      On March 2, 2012, the court entered a handwritten order

stating that Appellees could proceed on the grounds that Appellant

“exercised control over the vehicle improperly.” Order, 3/2/12.          Appellant

filed an answer and new matter.        An arbitration hearing was held and on

September 7, 2012, an award was entered in favor of Appellee Epps only in

the amount of $5,000. Appellant timely appealed. A non-jury trial de novo

was held on September 26, 2013.




2
    We reproduced the complaint verbatim.




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        The facts established at the non-jury trial were as follows: Appellees

left Appellee Epps’s3 1989 Range Rover for repair and service at Viviani

Motors by Brian Viviani. N.T., 9/26/13, at 5. Subsequently, Viviani died and

Enterprise foreclosed on the property.          Id. at 6, 9.   Joseph Fidler, Esq.,

counsel for Appellant, explained that Appellant gave a loan to Domenic

Petitta4 secured by mortgages on 4333 Ohio River Boulevard and 4281 Ohio

River Boulevard.      Id. at 11.     The loan went into default and Appellant

purchased the properties at a sheriff’s sale. Id. On September 13, 2011,

Appellee Morrissey went to the property to inquire about the Range Rover.

Id. He spoke with Rob Rock, an employee of Kuzneski & Lockard, which

manages all foreclosed properties for Appellant.         Id. at 12, 15, 16.     On

October 3, 2011, when Appellees went to retrieve the vehicle, it was

not on the property. Id. at 7 (emphasis added).

        Rock testified that he was at the property to have the locks changed

on December 21, 2010. Id. at 33. At that time, there were several vehicles

on the property.      Id. at 34.    He “was to understand that the bank had

contacted the father of the [deceased] gentleman, and he came, Domenic

Petitta, had all the vehicles removed except for the Range Rover.”             Id.

Subsequently, he went back to the property and all of the vehicles were


3
 Appellees concede Epps is the true owner of the vehicle. Appellees’ Brief at
22; N.T. at 6.
4
    Petitta was Viviani’s father. N.T. at 34.



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gone with the exception of Appellee Epp’s Range Rover.       Id.   Rock spoke

with Appellee Morrissey and asked him to pick up the vehicle in October. Id.

at 35. Rock told him the vehicle “could be towed at some time.” Id. at 36.

He “just couldn’t leave it on the property, but [he] hadn’t been

working diligently on having the car towed.”           Id. (emphasis added).

Rock never made any arrangements to have the vehicle removed from the

property. Id. at 37. Rock assumed Appellees filed a police report regarding

the vehicle because he was contacted by a police officer. Id. at 38.

         Brian James Conn testified as follows. He worked for a subsidiary of

Appellant, BuildOnUs.       Id. at 43.      He was a construction/building

maintenance supervisor. Id. at 44. He went to the property to evaluate it

and prepare a budget for rehabbing it.          Id.   No one approached him

regarding the Range Rover while he was at the property.       Id. at 46.   He

never met Appellees. Id. Neither he nor any of his four employees moved

the vehicle. Id. at 47. The back gate to the property was open all the time

and the Range Rover was not secured. Id. at 48. He never removed the

vehicle or authorized anyone to remove it. Id. at 52.

         Appellees proceeded pro se at trial.     Appellee Morrissey did not

question Conn.      Appellee Morrissey stated to the court: “The only one I

spoke to was Mr. Rock, so I don’t have any questions at all for [him.]” Id.

at 54.




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      John Holmes, a site supervisor at BuildOnUs, testified that he never

met Appellees. Id. at 57. He saw the vehicle on the property. Id. at 58.

He never moved the vehicle.       Id.   Appellee Morrissey questioned him

regarding the condition of the vehicle and its infestation with bees. Id. at

59. He testified that he was told to leave the vehicle on the property. Id. at

60.

      Appellee Morrissey asked the court to recall Rock so he could cross-

examine him and the court complied.       Id. at 61.   He testified as follows:

Appellee Morrissey had called him on October 3rd and Rock informed him

the vehicle was gone. Id. at 62. Rock never removed the vehicle. Id. His

priority was to rehabilitate the real property and not the vehicle on the

property. Id. at 63.

      The court found that Appellant was responsible for the vehicle and the

only issue before it was the valuation of the 1989 Range Rover. Id. at 66.

The trial court entered judgment in favor of Appellees in the amount of

$5,850.00.   Appellant filed a post-trial motion requesting judgment in its

favor notwithstanding the verdict (“JNOV”).    Appellant’s Mot. for Post Trial

Relief Pursuant to Pa.R.C.P. 227.1, 10/3/13, at 8. The trial court denied the

motion. Appellant filed a notice of appeal from the denial of the post-trial

motions. Judgment was entered on November 22, 2013. Appellant filed a

court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on

appeal and the trial court filed a Memorandum in Lieu of Opinion.



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      Appellant raises the following issues for our review:

         A. The Court of Common Pleas erred in finding that the
         Appellee proffered sufficient evidence, either through
         testimony or documentation, to establish that the
         Appellant was liable for an allegedly stolen vehicle located
         on its property[.]

            1. Appellee failed      to    establish   the   elements   of
            negligence[.]

                   i. The Court of Common Pleas ignored
                   uncontroverted facts that the Appellee had notice
                   that the Range Rover was located on Appellant’s
                   property and that Appellee was permitted to
                   remove the Range Rover[.]

            2. Appellee failed to establish the elements of a
            bailment.

            3. Appellee    failed   to    establish   the   elements   of
            conversion.

            4. The Trial Court violated the “coordinate jurisdiction”
            rule by ignoring Honorable R. Stanton Wettick’s Order
            of Court dated March 2, 2012 which provided that
            Appellee may pursue its claim based upon Appellant
            exercising control over the vehicle improperly.

         B. The Court of Common Pleas erred in finding damages in
         favor of Kelly Morrissey, a party to the action, but not the
         owner of the vehicle[.]

         C. The Court of Common Pleas abused its discretion when
         it ruled in favor of Appellee prior to Appellant presenting
         any testimony or documentation in support of its
         defenses[.]

Appellant’s Brief at 5.

      As a prefatory matter, we consider whether Appellant has waived its

sufficiency of the evidence claims. Appellant prefaced its statement of errors



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complained of on appeal with the          following statement pursuant to

Pennsylvania Rule of Appellate Procedure 1925(b)(4)(vi).

        [Appellant] cannot readily discern the ultimate basis for
        the Judge’s determination due to the fact that it is unclear
        as to what theory of liability the Court of Common Pleas
        held [Appellant] liable.   As a result, while [Appellant]
        attempts to be as concise as possible, some of the
        statements are more general.       [Appellant] respectfully
        requests that the below Statements of Error not be found
        to be waived on the grounds that they may be presented
        in general terms.

Appellant’s Statement of Errors Complained of on Appeal Pursuant to

Pa.R.A.P. 1925, 11/18/13, at 1.

     Appellant raised the following issue, inter alia, in the Rule 1925(b)

statement:5    “Whether the court of Common Pleas erred in finding that


5
  We note Appellant’s Rule 1925(b) statement contained eight issues, some
of which have not been addressed in its statement of questions involved or
in the argument section of Appellant’s brief. This Court has stated:

        We note that [the a]ppellant’s eleven-page Rule 1925(b)
        statement of errors contains issues that it did not address
        in its statement of questions involved or in the body of its
        brief, including a statute of limitations claim. Because [the
        a]ppellant has abandoned these issues on appeal, we will
        not address them. See Pa.R.A.P. 2116(a) (“No question
        will be considered unless it is stated in the statement of
        questions involved or is fairly suggested thereby”); see
        also Pa.R.A.P. 2119; In re Jacobs, 936 A.2d 1156, 1167
        (Pa. Super. 2007) (issue is waived for purposes of
        appellate review when an appellant does not develop it in
        brief).

Gurley v. Janssen Pharmaceuticals, Inc., ___ A.3d ___, ___, 2015 WL
1135894 at *2 n.11 (Pa. Super. 2015) (emphasis added and some citations
omitted).



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[Appellees] proffered sufficient evidence, either through testimony or

documentation, to establish that [Appellant] was liable for an allegedly

stolen vehicle located on its property under causes of action for negligence,

bailment or conversion.” Id.

      Pennsylvania Rule of Appellate Procedure 1925(b(4)(vi) provides:

          If the appellant in a civil case cannot readily discern the
          basis for the judge’s decision, the appellant shall preface
          the Statement with an explanation as to why the
          Statement has identified the errors in only general terms.
          In such a case, the generality of the Statement will
          not be grounds for finding waiver.

Pa.R.A.P. 1925(b)(4)(vi) (emphasis added). Accordingly, we decline to find

the issue of the sufficiency of the evidence waived. See id.

      Appellant argues the evidence was insufficient to establish the

elements of conversion because Appellees have failed to establish that

Appellant exercised dominion or control over the vehicle. Appellant’s Brief at

26. We find no relief is due.

      In Lanning v. West, 803 A.2d 753 (Pa. Super. 2002), this Court

opined:

          Initially, we note that [the appellant] raises her sufficiency
          of the evidence claim within the context of an appeal from
          a denial of a motion for judgment N.O.V. Where the
          evidence is insufficient to sustain the verdict or decision of
          the trial court, the remedy granted in civil cases is a
          judgment notwithstanding the verdict.          We will thus
          address [the appellant’s] sufficiency of the evidence claim
          in the context of her appeal from the denial of her motion
          for [JNOV. The appellant] contends [JNOV] was proper
          because [the appellee] had not provided sufficient



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         evidence for the court to find a conversion of property . . .
         .

Id. at 759 (citations omitted).

      “A sufficiency analysis, whether in the context of an appeal from the

granting of judgment n.o.v. or compulsory non-suit, must begin by

accepting the credibility and reliability of all evidence, viewed in the light

most favorable to the verdict winner regardless of whether the appellant

thinks that the evidence was believable.” Morin v. Brassington, 871 A.2d

844, 851 (Pa. Super. 2005).

      Our review is governed by the following principles.

            In reviewing a trial court’s decision whether or not to
         grant judgment in favor of one of the parties, we must
         consider the evidence, together with all favorable
         inferences drawn therefrom, in a light most favorable to
         the verdict winner.        Our standard of review when
         considering motions for a directed verdict and judgment
         notwithstanding the verdict are identical. We will reverse
         a trial court’s grant or denial of a judgment
         notwithstanding the verdict only when we find an abuse of
         discretion or an error of law that controlled the outcome of
         the case.

Mahan v. Am-Gard, Inc., 841 A.2d 1052, 1058 (Pa. Super. 2003) (citation

omitted).

            This Court has stated the following with regard to the
         tort of conversion:

            The classic definition of conversion under Pennsylvania
         law is “the deprivation of another’s right of property in, or
         use or possession of, a chattel, or other interference
         therewith, without the owner’s consent and without lawful
         justification.” Although the exercise of control over the
         chattel must be intentional, the tort of conversion does


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          not rest on proof of specific intent to commit a
          wrong. . . . See Bank of Landisburg v. Burruss, [524
          A.2d 896, 899 (Pa. Super. 1987]) (“Ordinarily, there is no
          inconsistency between finding that a defendant acted in
          good faith and finding that he is a converter.”)

HRANEC Sheet Metal, Inc. v. Metalico Pittsburgh, Inc., 107 A.3d 114,

119 (Pa. Super. 2014) (citations omitted and emphasis added). “Moreover,

a demand and refusal is an essential element of [a] claim for conversion.”

PTSI, Inc. v. Haley, 71 A.3d 304, 313 (Pa. Super. 2013)(citing Norriton

East Realty Corp. v. Cent.-Penn Nat’l. Bank, 254 A.2d 637, 638 (Pa.

1969)).

     Instantly, Appellant was going to have Epp’s vehicle towed.       It is

undisputed that when Appellees went to pick up the vehicle it was not on the

Appellant’s property.   Appellee Epp’s has been deprived of her property

without her consent. See HRANEC Sheet Metal, 107 A.2d at 119. We find

sufficient evidence for a claim of conversion.6 See id.; Mahan v. Am-Gard,

Inc., 841 A.2d at 1058.7

     Next, Appellant contends the trial court violated the coordinate

jurisdiction rule by ignoring the prior order of March 2, 2012 in the

arbitration on appeal from the decision of the magisterial district justice.


6
 “We are not bound by the trial court’s rationale, and may affirm its ruling
on any basis.” The Brickman Group, Ltd. v. CGU Ins. Co., 865 A.2d 918,
928 (Pa. Super. 2004).
7
  Given our resolution of this issue, we need not address Appellant’s
remaining sufficiency of the evidence claims.



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The order provided that Appellees could pursue their claim at the arbitration

based upon the theory that Appellant “exercised control over the vehicle

improperly.” Appellant’s Brief at 29. We find no relief is due.

      The Uniform Arbitration Act provides for compulsory arbitration and

states in pertinent part:

         (a) General rule.─Except as provided in subsection (b),
         when prescribed by general rule or rule of court such civil
         matters or issues therein as shall be specified by rule shall
         first be submitted to and heard by a board of three
         members of the bar of the court.

         (b) Limitations.─No matter shall be referred under
         subsection (a):

            (1) which involves title to real property; or

                                  *      *     *

             (2) where the amount in controversy, exclusive of
            interest and costs, exceeds $50,000.

                                  *      *     *

         (d) Appeal for trial de novo.─Any party to a matter
         shall have the right to appeal for trial de novo in the court.
         The party who takes the appeal shall pay such amount or
         proportion of fees and costs and shall comply with such
         other procedures as shall be prescribed by general rules. .
         ..

42 Pa.C.S. § 7361(a), (b)(1)-(2), (d).

      Pennsylvania Rule of Civil Procedure 1311 provides:

         (a) The trial shall be de novo.

         (b) An arbitrator may not be called to testify as to what
         transpired before the arbitrators.



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Pa.R.C.P. 1311 (emphasis added).       The comment to the rule provides, inter

alia, as follows:

           The Rules make no change in the unlimited right to trial de
           novo, even if it is charged that a defendant abused the
           hearing by using it for discovery and without calling any
           witnesses. The Supreme Court, in Weber v. Lynch, [ ]
           375 A.2d 1278 ([Pa.] 1977), affirming [ ] 346 A.2d 363
           ([Pa. Super.] 1975), foreclosed consideration of the
           matter, holding that the right to trial de novo includes the
           right “to proceed to trial with no evidentiary limitations.”
           Allegheny County Rule 303 J, which had contained a
           limiting provision, was invalidated. The repetition by the
           legislature in the Judicial Code of the de novo trial
           provision of the Act of 1836 would indicate a legislative
           approval of the Weber decision.

Id. cmt.

      In Weber, this Court opined:

           [A]n appeal from compulsory arbitration is tried de novo
           before the court and jury and plaintiffs are free to present
           such evidence as they may have whether it was
           presented before the arbitrators or not.

              It is clear that Rule 303J, in limiting the scope and
           content of the subsequent trial, does not permit the ‘full
           consideration of the case anew,’ which a trial de
           novo requires.

Weber v. Lynch, 346 A.2d 363, 365-66 (Pa. Super. 1975) (emphases

added).

      Our Supreme Court has stated:

           One of the distinct rules that are encompassed within the
           “law of the case” doctrine is the coordinate jurisdiction
           rule. Generally, the coordinate jurisdiction rule commands
           that upon transfer of a matter between trial judges of
           coordinate jurisdiction, a transferee trial judge may not
           alter resolution of a legal question previously decided by a


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           transferor trial judge.   More simply stated, judges of
           coordinate jurisdiction should not overrule each other’s
           decisions.

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (footnote and citations

omitted). The instant case was not transferred between trial judges within

the same court.         It was a trial de novo.        See 42 Pa.C.S. § 7361(d).

Therefore, the coordinate jurisdiction rule is not applicable. See Zane, 836

A.2d at 29.

        Next, Appellant avers the trial court erred in finding damages in favor

of Appellee, Morrissey, a party to the action, but not the owner of the

vehicle.      Appellant’s Brief at 32.    We need not address this issue because

“Appellee does not dispute this assertion and would concede that the

judgment should have only been entered in favor of Appellee Epps.”

Appellee’s Brief at 22. We find the trial court erred in entering judgment in

favor of Appellee Morrissey.

        Lastly, Appellant claims the court abused its discretion when it ruled in

favor    of    Appellees   prior   to    Appellant   presenting   any   testimony   or

documentation in support of its defenses.             Appellant’s Brief at 33. As a

prefatory matter, we consider whether Appellant has waived this issue.

        On appeal, Appellant fails to cite to the place in the record where this

claim was preserved before the trial court. See Pa.R.A.P. 2117(c) (requiring

statement of case to specify state of proceedings at which issue sought to be

reviewed on appeal was raised), 2119(e) (requiring same of argument



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section of appellate brief); McNeil v. Owens-Corning Fiberglas Corp.,

680 A.2d 1145, 1149 (Pa. 1996).

      This Court has stated:

             The argument portion of an appellate brief must include
         a pertinent discussion of the particular point raised along
         with discussion and citation of pertinent authorities. This
         Court will not consider the merits of an argument which
         fails to cite relevant case or statutory authority. Failure to
         cite relevant legal authority constitutes waiver of the claim
         on appeal.

In re Estate of Whitley, 50 A.3d 203, 209 (Pa. Super. 2012) (quotation

marks and citations omitted), appeal denied, 69 A.3d 603 (Pa. 2013).

      Instantly, Appellant does not cite to the place in the record where the

claim was raised before the trial court.      Appellant’s argument is devoid of

any citation to legal authority.   Therefore, we find the issue waived.    See

Pa.R.A.P. 2117(c); 2119(e); In re Whitley, 50 A.3d at 209.

      We affirm the judgment as to Appellee Epps. We vacate and remand

for the court to enter judgment in favor of Appellee Epps only.

      Case remanded with instructions. Jurisdiction relinquished.

      President Judge Emeritus Bender joins the memorandum.

      Judge Olson concurs in the result.



Judgment Entered.




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Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/22/2015




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