J-A08010-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    RECIGNO LABORATORIES, INC.                 :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    JENSEN DENTAL, INC. AND 3M                 :   No. 1843 EDA 2019
    COMPANY                                    :

               Appeal from the Judgment Entered May 29, 2019
     In the Court of Common Pleas of Montgomery County Civil Division at
                             No(s): 2015-02676


BEFORE: LAZARUS, J., KUNSELMAN, J., and McCAFFERY, J.

MEMORANDUM BY LAZARUS, J.:                                 FILED MAY 11, 2020

       Recigno Laboratories, Inc. (“Recigno”) appeals from the order, entered

in the Court of Common Pleas of Montgomery County, granting motions for

summary judgment in favor of defendants Jensen Dental, Inc. (“Jensen”) and

3M Company (“3M”). We affirm.1

       In October of 2004, Recigno and 3M entered into a purchase agreement

for dental prosthetics (2004 Purchase Agreement/Agreement) whereby

Recigno agreed to purchase a collection of all-ceramic equipment known as

3M’s “Lava Line.” The 2004 Purchase Agreement granted Recigno a perpetual

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1 We, herein, deny Recigno’s application for continuance, filed on April 28,
2020, as untimely. See No. 3 Administrative Docket Order, 3/19/20
(ordering that all cases on panel A08/20 be submitted for disposition on brief
unless counsel files application for continuance to next available oral argument
panel, in which case “[a] party shall have up to and including April 17, 2020
to request that oral argument be held at a later date.”).
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“license to use the software supplied by [3M] as part of the Equipment.” 2004

Purchase Agreement, 10/7/04, at ¶ 5. The Agreement was silent with regard

to upgrades, maintenance, or improvements to the software; it did, however,

contain integration and limitation of liability clauses. Id. Recigno and 3M

entered into a substantially similar agreement in 2008 for the purchase of

3M’s “Lava Crown and Bridges System.”            Throughout their relationship,

Recigno elected not to enter into 3M’s separate software service agreement,

choosing instead to purchase any necessary software support on a “time and

materials basis.” Recigno’s Responses to Jensen’s First Set of Interrogatories,

9/28/17, at ¶ 11.

       In February of 2011, 3M and Jensen notified Recigno that they had

entered into a partnership whereby, effective April 2011, Jensen would sell all

of 3M’s “Lava materials, software[,] and equipment, and provide first-line

customer support” for dental laboratories in the United States, including

Recigno.” Recigno Ans. to Jensen Mot., 1/16/18, at ¶ 38. After 3M transferred

Recigno’s account to Jensen, Recigno experienced difficulty with its software

and was unsatisfied with Jensen’s support.2
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2

       Recigno alleges that Jensen has not provided needed support
       because it sells other products that compete with the Lava line.
       Recigno maintains that the failure to provide needed support is a
       breach of the contracts between Recigno and 3M and that Jensen
       is also liable for breach because it accepted an assignment or
       delegation from 3M of 3M’s contractual duties.




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       In February of 2015,3 Recigno filed a complaint against 3M and Jensen

for breach of contract, and an additional claim of unjust enrichment against

3M.     During the course of discovery, Recigno’s owner and corporate

representative, David T. Recigno, stated at his deposition that Recigno did not

intend to pursue the unjust enrichment claim against 3M. N.T. David Recigno

Oral Deposition, 11/3/17, at 199-201.            3M and Jensen filed motions for

summary judgment at each count; following oral argument on May 1, 2019,

the court granted both motions and entered summary judgment in favor of

3M and Jensen via order dated May 29, 2019. Recigno timely filed a notice of

appeal and court-ordered Pa.R.A.P. 1925(b) concise statement of errors

complained of on appeal. Recigno raises the following issues for our review:

       1. Did the [c]ourt fail to follow established case law that
          circumstances may create a contract? Transco Pharm[.] v[.]
          Carbomer, Mont[.] # 2012-01863 and Toneatto v[.] Sheth,
          Mont[.] # 2016-02679[?]

       2. Did the [c]ourt ignore the facts of the case?

       3. The court ruled that in [David Recigno’s] deposition[,] he
          waived [Recigno’s] [u]njust [e]enrichment [claim,] except the
          waiver of the alleged waiver [sic] were not attached to 3M’s
          [m]otion for [s]ummary [j]udgment. When the error was
          disclosed[,] the [c]ourt went looking for the pages. It is error
          to make a ruling without evidence.

       4. [David Recigno]’s testimony is not an affirmative waiver of
          [u]njust [e]nrichment. The testimony is a question for the


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Trial Court Opinion, 8/19/19, at 4.

3Recigno’s complaint was filed on February 11, 2015, and amended on April
2, 2015.

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          jury. It is error to grant [] [s]ummary [j]udgment based on
          testimony.

Brief of Appellant, at 3.

       We find that Recigno’s brief fails in numerous respects to conform with

our Rules of Appellate Procedure, and, accordingly, we are constrained to

conclude that Recigno waived all issues it may have wished to raise on appeal.

Commonwealth v. Clayton, 816 A.2d 217, 221 (Pa. 2002) (“[I]t is a well

settled principle of appellate jurisprudence that undeveloped claims are

waived and unreviewable on appeal.”).            Specifically, Recigno’s “argument”

section consists of six subheadings4 that fail to mirror the four issues he

purports to raise in his statement of issues. See Pa.R.A.P. 2119(a) (requiring

argument be “divided into as many parts as there are questions to be

argued”).     Furthermore, Recigno does not properly develop any of its

purported claims by including any meaningful discussion of, or citation to, any

relevant legal authority.5 The brief is virtually devoid of any legal argument.

See Pa.R.A.P. 2119(b) (compels finding of waiver “where an appellate brief

fails to provide any discussion of a claim with citation to relevant authority or



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4Recigno’s argument is broken down into the following sections: assignment,
contract, breach, damages, unjust enrichment, and limitation of liability. Brief
of Appellant, at 6-7. Each sub-section consists of a two-to-five sentence
argument. See id.

5 Only one case from any Pennsylvania appellate court is cited in Recigno’s
brief. Brief of Appellant, at 6 (citing Smith v. Cumberland, 687 A.2d 1167
(Pa. Super. 1997) (where assignment is effective, assignee assumes all rights
of assignor)).

                                           -4-
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fails to develop the issue in any meaningful fashion capable of review.”);

Clayton, supra.

      In light of the foregoing, we find all of Recigno’s appellate issues waived

and we affirm the trial court’s grant of summary judgment in favor of

Defendants Jensen and 3M.

      Moreover, even if the issues were not waived, no relief would be due.

Recigno failed to present evidence that 3M or Jensen breached any contractual

agreement or provision.     Recigno maintains that Jensen did not provide

adequate service, upgrades, and support for certain software; however,

Recigno does not identify any provision of its written agreement with 3M

allegedly assigned to Jensen setting forth those obligations. Rather, David

Recigno conceded at his deposition that the alleged breaches at issue here

“[a]re not necessarily contractual items that can be pointed to.” N.T. David

Recigno Oral Deposition, 11/3/17, at 36-45. Thus, the trial court correctly

determined that summary judgment was appropriate where Recigno failed to

establish a genuine dispute of material fact as to breach. Order, 5/29/19, n.1.

      With regard to Recigno’s unjust enrichment claim, Recigno submits that

the court erred in “rul[ing] that [David Recigno] waived [it] during his

deposition.” Brief of Appellant, at 6. However, the trial court’s ruling was not

based expressly on Mr. Recigno’s deposition testimony.

      [I]t was apparent that Recigno had made the decision not to
      oppose 3M’s [m]otion to the extent that it sought judgment on
      the claim for unjust enrichment. Recigno’s papers in opposition
      to the [m]otion made no reference to the unjust enrichment claim
      and did not dispute that 3M was entitled to summary judgment on

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      that claim. The Court therefore concluded that Recigno had
      abandoned its claim for unjust enrichment. See, e.g., Kraus v.
      Taylor, 710 A.2d 1142, 1146-47 (Pa. Super. 1998) (error
      asserted in post-trial motion is waived if it is not addressed in
      supporting brief).

Trial Court Opinion, 9/6/18, at 11. Recigno fails to establish any reversible

error on the part of the trial court in finding that Recigno abandoned its unjust

enrichment claim when Recigno’s corporate representative repeatedly

expressed that Recigno would not be pursuing the claim, and Recigno offered

no arguments in response to 3M’s contention that it was entitled to summary

judgment on that claim. See N.T. David Recigno Oral Deposition, 11/3/17, at

36-45, 199-201; Recigno Ans. to 3M Mot., 1/16/18.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/11/20




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