J-A07012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

TERRI BRUZZESE,                              IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                        Appellee

                  v.

JOHN BRUZZESE,

                        Appellant

                   v.

DAVID E. MARTIN, INDIVIDUALLY, NFI,
LLC, A PENNSYLVANIA LIMITED
LIABILITY COMPANY, FINANCIAL
ADVISORS CONSORTIUM, INC., A
PENNSYLVANIA CORPORATION,
NETWORK FOR FINANCIAL
INDEPENDENCE, LLC A PENNSYLVANIA
LIMITED LIABILITY COMPANY AND
GIOVANNI BRUZZESE, AS EXECUTOR OF
THE ESTATE OF CARMELLA BRUZZESE,
DECEASED                                        No. 1056 WDA 2014



             Appeal from the Judgment Entered June 4, 2014
            In the Court of Common Pleas of Allegheny County
                   Civil Division at No(s): GD09-006968


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                      FILED MAY 12, 2015

     John Bruzzese (Appellant) appeals from the judgment entered June 4,

2014, following a trial in which a jury awarded Terri Bruzzese (Wife)

damages for breach of contract. We affirm.
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      In 1974 and 1977, Domenic Bruzzese (Husband) purchased Prudential

life insurance policies from Appellant, an insurance agent and Husband’s

brother. The policies identified Husband’s parents as beneficiaries.

      Husband and Wife married in 1981. In 1983, Wife became pregnant

with their first child.     During Wife’s pregnancy, Husband and Wife

determined to modify their life insurance plans. To that end, Husband and

Wife met with Appellant at their home.          With Appellant’s assistance,

Husband    prepared   the   necessary   documents    to   switch   the   named

beneficiaries on his life insurance policies to Wife.       In addition, Wife

purchased a policy from Appellant. As their agent, Appellant agreed to file

the paperwork.

      In 2007, following a short illness, Husband died.    At that time, Wife

discovered that Appellant had never filed the change of beneficiary forms for

the 1977 life insurance policy. The policy benefit, $40,441.95, was paid to

Husband’s mother, not Wife. Despite Appellant’s assurances that Wife would

receive the benefit, she did not.

      Wife commenced this litigation in April 2009, filing a praecipe for writ

of summons naming Appellant as defendant.       Following a long delay, Wife

filed a complaint in November 2011, claiming negligence and breach of

contract. Appellant filed preliminary objections that were denied by the trial

court. Thereafter, Appellant filed an answer and new matter. Appellant also




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filed a joinder complaint, alleging that additional defendants were solely

liable over to Wife for any damages.

        Prior to trial, Appellant filed a motion in limine, seeking to prevent

Wife from introducing (1) evidence contrary to various judicial admissions,

allegedly made during pleadings, and (2) hearsay testimony of statements

made by Husband prior to his death. The trial court denied the motion in

part,    deferring   a   decision   regarding   hearsay    testimony   until   trial.

Subsequently, the trial court permitted Wife to testify that Husband planned

and/or intended to amend his life insurance policies, naming her the

beneficiary.

        A jury trial commenced in March 2014.             Following trial, the jury

returned a verdict. On the negligence claim, the jury found that Wife was

60% negligent; Appellant was 40% negligent; and additional defendants

were not negligent. Thus, Wife was not entitled to damages on this claim.

However, the jury further found that Appellant had breached an oral contract

between him and Husband and that Wife was a third-party beneficiary of

that contract. The trial court molded the verdict in favor of Wife and against

Appellant in the amount of $40,441.95.

        Appellant and Wife filed post-trial motions. The trial court denied

Appellant’s post-trial motions; granted Wife’s motion to add $15,376.81 in

prejudgment interest to the verdict; and ordered judgment entered on her

behalf in the amount of $55,818.76. Appellant timely appealed and filed a


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court-ordered 1925(b) statement.1              The trial court issued a responsive

opinion.

       Appellant raises the following issues on appeal:

       1. Are general denials to material averments of fact set forth in
       [n]ew [m]atter judicial admissions[,] which may not be
       contradicted by additional evidence?

       2. May a party offer testimony related to the terms of an oral
       contract based on conversations with a person deceased at the
       time of trial under Pa.R.E. 803?

       3. May a claimed third party beneficiary to a contract recover
       damages when there is no proof of any consideration for the
       creation of the underlying contract from which the third party
       claim is derived?

       4. Should a jury be charged on both negligence and contract
       law when the underlying basis for the claim at issue is that of a
       third party beneficiary under a contract?

       5. May a claimed third party beneficiary to a contract file suit
       more than twelve years after she and the actual contracting
       party were both aware of an alleged breach of contract?

       6. May a [t]rial [c]ourt refuse to charge the jury on impossibility
       of performance when there was evidence offered and admitted in
       support of that affirmative defense without objection?

Appellant’s Brief at 6 (statements of trial court answers to these questions

omitted).2

____________________________________________


1
  Appellant’s statement was untimely. At this Court direction, Appellant
sought and received nunc pro tunc relief from the trial court, permitting the
untimely filing. Accordingly, we permitted the appeal to proceed.
2
  Appellant’s brief does not conform to our rules of appellate procedure.
Appellant presents six issues for our consideration, yet his argument
(Footnote Continued Next Page)


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      Initially, we observe that Appellant’s proposed standard of review is

imprecise.   See Appellant’s Brief at 5 (suggesting that we review the trial

court’s decisions for a clear abuse of discretion or an error of law that

controlled the outcome of this case). Appellant does not seek a new trial,

see, e.g., Gorman v. Costello, 929 A.2d 1208, 1212 (Pa. Super. 2007)

(cited by Appellant), but rather judgment notwithstanding the verdict

(JNOV). See Appellant’s Brief at 41; see also Appellant’s Post-Trial Motion

at 1 and 7 (unnumbered).

      There are two bases upon which a court may enter a [JNOV]: (1)
      the movant is entitled to judgment as a matter of law, … or (2)
      the evidence was such that no two reasonable minds could
      disagree that the outcome should have been rendered in favor of
      the movant …. With the first, a court reviews the record and
      concludes that even with all factual inferences decided adverse
      to the movant, the law nonetheless requires a verdict in their
      favor; whereas with the second, the court reviews the
      evidentiary record and concludes that the evidence was such
      that a verdict for the movant was beyond peradventure.

      …

      [I]n reviewing a motion for [JNOV], the evidence must be
      considered in the light most favorable to the verdict winner, and
      he must be given the benefit of every reasonable inference of
      fact arising therefrom, and any conflict in the evidence must be
      resolved in his favor. Moreover, a court should only enter a
      [JNOV] in a clear case and must resolve any doubts in favor of
      the verdict winner. A lower court's grant or denial of a [motion
                       _______________________
(Footnote Continued)

includes seven sub-sections. See Pa.R.A.P. 2119(a). Moreover, Appellant’s
presentation of the issues is haphazard. For example, in his third issue,
Appellant claims there was no evidence of consideration to support Wife’s
claim of a contract, and yet Appellant does not discuss this issue until his
sixth, briefed argument. See Appellant’s Brief at 33.



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      for] [JNOV] will be disturbed only for an abuse of discretion or
      an error of law. In examining this determination, our scope of
      review is plenary, as it is with any review of questions of law.

Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1074

(Pa. 2006) (citations and some punctuation omitted).

      To the extent Appellant does not develop an argument attuned to this

standard, he risks waiver of issues otherwise preserved.           See, e.g.,

McEwing v. Litiz Mut. Ins. Co., 77 A.3d 639, 647 (Pa. Super. 2013)

(quoting Umbelina v. Adams, 34 A.3d 151, 161 (Pa. Super. 2011) (finding

waiver where an appellate brief fails to develop an issue “in any other

meaningful fashion capable of review”)). Nonetheless, we will endeavor to

review Appellant’s issues on their merits.

      In his first, second, and third issues, Appellant challenges evidentiary

decisions of the trial court. Within this context, Appellant contends that Wife

failed to establish (1) an underlying contract between Husband and

Appellant and (2) her status as a third-party beneficiary of the alleged

contract.   See Appellant’s Brief at 28-32.       We infer from Appellant’s

presentation the following: if we grant Appellant relief on his evidentiary

issues, thus eliminating certain evidence favorable to Wife from the record,

we may then examine the remaining evidence and conclude that Appellant is

entitled to judgment as a matter of law. See Quinby, 907 A.2d at 1074.

Thus, we proceed.




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      Generally, we review a trial court’s evidentiary decisions for an abuse

of discretion. See Schmalz v. Mfrs. and Traders Trust Co., 67 A.3d 800,

802-03 (Pa. Super. 2013).      To the extent Appellant challenges the trial

court’s interpretation of our procedural or evidentiary rules, our review is de

novo. See Sigall v. Serrano, 17 A.3d 946, 949 (Pa. Super. 2011).

      In his first issue, Appellant contends that the trial court erred in

denying that portion of his motion in limine claiming errors in Wife’s

pleadings.   See Appellant’s Brief at 17-23.    According to Appellant, Wife

failed to deny specifically several factual averments pleaded in Appellant’s

new matter.     For example, Appellant averred that he never met with

Husband or Wife to discuss a change in beneficiary status.       According to

Appellant, Wife’s general denial of this and other averments constitute

judicial admissions, citing in support Pa.R.C.P. 1029(b).     Thus, Appellant

concludes, Wife should not have been permitted to contradict these

admissions at trial.

      Appellant’s argument is without merit.       Rule 1029(b) provides as

follows:

      Averments in a pleading to which a responsive pleading is
      required are admitted when not denied specifically or by
      necessary implication. A general denial or a demand for proof,
      except as provided by subdivisions (c) and (e) of this rule, shall
      have the effect of an admission.

Pa.R.C.P. 1029(b). However, it is well settled that we examine pleadings as

a whole to determine whether a material fact has been admitted.            See


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Alwine v. Sugar Creek Rest., Inc., 883 A.2d 605, 609 (Pa. Super. 2005);

Ramsay v. Taylor, 668 A.2d 1147, 1149 (Pa. Super. 1995) (citing Cercone

v. Cercone, 396 A.2d 1, 6 (Pa. Super. 1978)).         Further, “[n]ew matter

properly contains averments of facts only if they are extrinsic to facts

averred in the complaint. Watson v. Green, 331 A.2d 790, 792 (Pa. Super.

1974) (emphasis added). No reply is necessary to an allegation previously

and “clearly placed into issue by the complaint[.]” Id.

       As reasoned by the trial court,

       [t]o accept [Appellant’s] position would be to ignore the
       complaint’s averments that [Husband] and [Wife] met at their
       home with [Appellant] to change the beneficiary on [Husband’s]
       life insurance policies and [that] [Husband] and [Appellant]
       completed the documents for the change. Rule 1029(b) …
       requires a determination of whether [Wife] denied [Appellant’s]
       averment that he never met with [Husband] and [Wife] “by
       necessary implication.”    By describing the meeting in the
       complaint, and generally denying [Appellant’s] allegation of
       never meeting, [Wife] denied the allegation by necessary
       implication.

Trial Court Opinion at 4 (citations omitted).       No reply to the factual

averments contained in Appellant’s new matter was necessary.         Watson,

331 A.2d at 792. Thus, we discern no abuse of the trial court’s discretion. 3

       In his second issue, Appellant contends that the trial court erred by

permitting Wife to testify regarding Husband’s intention to make Wife the
____________________________________________


3
  Appellant also suggests that Wife admitted the alleged contract between
Appellant and Husband was not supported by consideration. Appellant is
incorrect. Wife pleaded that Appellant served as Husband’s insurance agent,
thus establishing the requisite consideration. See Complaint at ¶¶ 7, 8.



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beneficiary of his life insurance policies.    See Appellant’s Brief at 23-24.

According   to    Appellant,   Wife’s   testimony   was   inadmissible   hearsay,

suggesting that it comprised a statement of memory.

      Appellant is incorrect. Wife did not testify to a statement of Husband’s

memory, but rather to a statement of his future intent. Pennsylvania Rule of

Evidence 803(3) states that the following is not excluded by the rule against

hearsay and, therefore, admissible to establish the truth of the matter

asserted:

      A statement of the declarant's then-existing state of mind (such
      as motive, intent or plan) or emotional, sensory, or physical
      condition (such as mental feeling, pain, or bodily health), but not
      including a statement of memory or belief to prove the fact
      remembered or believed unless it relates to the validity or terms
      of the declarant's will.

Pa.R.E. 803(3).

      As stated by the trial court,

      [Wife] offered [Husband’s] plan or intention to make [Wife] the
      beneficiary to show [Husband] later acted in conformity with this
      plan or intention by discussing it with [Appellant] and signing the
      beneficiary change forms at the meeting. The testimony falls
      squarely within the hearsay exception for then-existing mental,
      emotional, or physical condition.

Trial Court Opinion at 6 (emphasis added) (quotation marks omitted) (citing

in support Commonwealth v. Begley, 780 A.2d 605, 623 (Pa. 2001)

(“Intention … is a fact, and the commonest way for such a fact to evince

itself is through spoken or written declarations.”). We agree and, therefore,

discern no abuse of the trial court’s discretion.


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      In his third issue, Appellant claims that Wife failed to present evidence

that the contract between Husband and Appellant was supported by

consideration. See Appellant’s Brief at 33-36. Appellant fails to support his

argument with any citation to legal authority.     Accordingly, we deem this

issue waived.   See McEwing, 77 A.3d at 647; Pa.R.A.P. 2119.              Absent

waiver, this Court has previously stated that “[w]hether a contract is

supported by consideration presents a question of law.”      Pennsy Supply,

Inc. v. Am. Ash Recycling Corp. of Pa., 895 A.2d 595, 601 (Pa. Super.

2006).

      The trial court determined the following:

      Since [Appellant] was the agent on the policy, he received
      commissions from the policy premiums paid by [Husband]. In
      return for payment of premiums, one service that a life
      insurance agent provides to a customer is to assist with
      beneficiary changes.     [Notes of Testimony [N.T.], 03/17-
      18/2014, at 93-102.] Hence, the premiums paid by [Husband]
      (from which [Appellant] received commissions) are the
      consideration for [Appellant’s] agreement to have the
      beneficiaries changed on [Husband’s] policies.

Trial Court Opinion at 7. We discern no legal error by the trial court.

      Based upon our disposition of Appellant’s first three issues, and our

review of the record as a whole, Appellant is not entitled to JNOV.         Wife

established (1) a contract between Husband and Appellant; (2) that she was

an intended third-party beneficiary to that contract; and (3) Appellant failed

to perform his contractual obligation. See generally Scarpitti v. Weborg,

609 A.2d 147, 150-51 (Pa. 1992) (discussing third-party beneficiaries).


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Thus, we will not disturb the jury’s verdict, or the judgment entered

thereupon. To the extent Appellant points to other evidence in the record

more favorable to him, we reiterate that we view the record in the light most

favorable to the verdict winner. See Quinby, 907 A.2d at 1074.

      In his fourth issue, Appellant contends that the trial court erred in

permitting the jury to consider both of Wife’s claims, for negligence and

breach of contract. See Appellant’s Brief at 25-28. According to Appellant,

the “gist of the action” doctrine prohibits consideration of a negligence claim

where the facts alleged set forth an ordinary breach of contract claim. See,

e.g., eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10 (Pa. Super.

2002).

      On this issue, Appellant’s request for JNOV is inappropriate.       See

Eichman v. McKeon, 824 A.2d 305, 317, Pa. Super. 2003) (“Error in a

[jury] charge is sufficient ground for a new trial, if the charge as a whole is

inadequate or not clear or has a tendency to mislead or confuse rather than

clarify a material issue.”) (emphasis added). Appellant has not requested a

new trial. Moreover, we deem this claim moot. The jury determined that

Wife was comparatively more negligent than Appellant, and thus not entitled

to damages on her negligence claim. Any error made by the trial court did

not control the outcome of this case. Id.

      In his fifth issue, Appellant contends that Wife’s contract claim is

barred by the statute of limitations.   See Appellant’s Brief at 36-40. This


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raises a question of law, for which our standard of review is de novo. See,

e.g., Commonwealth v. Riding, 68 A.3d 990, 993-94 (Pa. Super. 2013)

(citing Commonwealth v. Russell, 938 A.2d 1082, 1087 (Pa. Super.

2007); Commonwealth v. Taylor, 65 A.3d 462, 467 (Pa. Super. 2013)).

According to the trial court,

       [w]hile [Appellant] pled the bar of the statute of limitations
       under new matter, he did nothing at trial to raise it as a defense.
       Specifically, [Appellant’s] counsel did not mention the statute of
       limitations defense in either his opening or his summation to the
       jury and did not submit a point for charge on the subject or
       include the subject in the proposed verdict form. Therefore, it
       cannot be the basis for relief on appeal.

Trial Court Opinion at 11 (citing Pa.R.C.P. 227.1(b)(1)); see also, e.g., In

re Adoption of D.M.H., 682 A.2d 315, 322 (Pa. Super. 1996). We agree

that Appellant did not preserve this issue at trial. Accordingly, we deem it

waived.4

       In his sixth issue, Appellant contends that the court erred or abused its

discretion when it denied Appellant’s requested jury charge on impossibility

of performance. See Appellant’s Brief at 32-33. Appellant fails to support

his argument with any citation to legal authority. Accordingly, we deem this

issue waived. See McEwing, 77 A.3d at 647; Pa.R.A.P. 2119.

____________________________________________


4
  We note that Appellant’s suggestion that he raised this issue in a motion
for nonsuit is not supported by the record. See N.T. at 103-06; see also
Appellant’s Brief at 40. Moreover, as observed by the trial court, it appears
Appellant specifically conceded this point during trial. See Trial Court
Opinion at 11-12 (citing N.T. at 37, 175).



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       Absent waiver on the above ground, and similar to our discussion of

Appellant’s fourth issue, supra, Appellant’s request for JNOV is inappropriate,

and Appellant has not requested a new trial.     See Eichman, 824 A.2d at

317.    Nevertheless, on the merits, which we review for clear abuse of

discretion or error of law controlling the outcome of the case, see id., the

trial court stated the following:

       Appellant premises [his] argument on a provision in the life
       insurance policy that prohibits agents from modifying the
       insurance policy.      [Wife], however, never alleged that
       [Appellant] alone could modify the insurance policy to make her
       the beneficiary. She simply alleged that during a meeting in
       1983[, Appellant] took the change of beneficiary documents that
       [Husband] had signed but failed to submit them to Prudential.

Trial Court Opinion at 10.     We agree. The premise of Appellant’s claim is

without merit, and thus, we discern no abuse of the trial court’s discretion or

error of law.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/12/2015




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