Williams Pontiac Co. v. Patriot Buick Pontiac

J-A28026-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAMS PONTIAC COMPANY AND : IN THE SUPERIOR COURT OF

BRUCE L. SANFT : PENNSYLVANIA

:

Appellant :

:

v. :

:

:

PATRIOT BUICK PONTIAC GMC, : No. 1459 EDA 2017

INC. :

:

:

BRUCE L. SANFT :

:

v. :

:

:

PATRIOT BUICK PONTIAC GMC, :

INC. :

Appeal from the Judgment Entered April 3, 2017

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): No. 06-17613,

No. 06-18948

WILLIAMS PONTIAC COMPANY AND : IN THE SUPERIOR COURT OF

BRUCE L. SANFT : PENNSYLVANIA

:

v. :

:

:

PATRIOT BUICK PONTIAC GMC, INC. :

:

Appellant : No. 1964 EDA 2017

:

:

BRUCE L. SANFT :

:

v. :

:

J-A28026-17

PATRIOT BUICK PONTIAC GMC, INC. :

:

:

Appeal from the Judgment Entered April 3, 2017

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 06-17613,

06-18948

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY PANELLA, J. FILED JULY 03, 2018

In these consolidated cross-appeals, the parties appeal the judgment

entered in the Court of Common Pleas of Montgomery County, which awarded

Appellee/Cross-Appellant, Patriot Buick Pontiac GMC, Inc. (hereafter

“Patriot”), judgment of $21,219.09, plus interest. We affirm the judgment in

favor of Patriot. But we remand for the limited purpose of calculating and

awarding prejudgment interest in favor of Patriot.

The relevant facts and procedural history of this case are as follows.

Appellants/Cross-Appellees, Williams Pontiac Company and Bruce L. Sanft

(collectively, “Appellants”), signed a contract with Jason Owens and Chad

Helmer to act as executive managers of the Williams Pontiac Company’s car

dealership. Under the terms of the contract, Owens and Helmer were given

control over the day-to-day operations of the business, including procurement

of new vehicles and financing. The contract reflected the parties’ intention for

Owens and Helmer to eventually purchase the dealership. Completion of

certain prerequisites, including the purchase of an associated Nissan

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dealership by a separate entity, were to be concluded prior to the execution

of a sale agreement.

Owens and Helmer formed Patriot, a Pennsylvania corporation, in

anticipation of the sale. The parties extensively negotiated and signed the

Asset Purchase Agreement, which included, among other things, Patriot’s

purchase of customer lists, new cars, certain used cars, accessories, shop

equipment, and assignable leases. The agreement specifically excluded from

the sale any Nissan assets, and money in Williams Pontiac Company’s bank

accounts. The parties also signed a non-compete agreement, and Patriot

issued a promissory note to pay Appellant Sanft an additional $200,000.00 on

top of the sale price, disbursed in 60 monthly installments.

One week before closing, Owens and Helmer provided Appellants with a

trial balance sheet reflecting the value of Williams Pontiac Company’s vehicles

and parts. That balance sheet showed, among other things, trade-in vehicles

valued at $1,021,289.00, accounts receivable at $689,329.08, and the

company bank balance at $165,233.00. On March 7, 2006, the day of closing,

Owens and Helmer provided an updated balance sheet, which all parties

agreed to use to determine the relevant asset values. The updated balance

sheet reflected trade-ins valued at $982,671.51, accounts receivable at

$434,405.78, and a bank balance of $459,493.77. The parties settled on an

amount owed by Patriot to Appellants at closing as $1,647,247.20, which

included $401,363.25 to be paid by the General Motors Acceptance

Corporation (“GMAC”), a vehicle financing company, as part of a financing

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arrangement agreed to by all parties. The parties also agreed to offset the

total by $8,720.68. Thus, Patriot paid Appellants $1,237,163.27 in cash and

bank notes at closing.

Following closing, Appellants claimed they had not received the GMAC

payment, and requested counsel for Patriot make inquiries as to its

whereabouts. After doing so, counsel for Patriot determined the payment had

already been deposited in Appellants’ corporate bank account at the time of

closing, and was thus part of the $459,493.77 bank balance Appellants

retained.

In response, Appellants challenged counsel’s representation that the

GMAC deposit was part of the previously delivered bank balance. Unable to

resolve the dispute, Appellants filed a complaint, arguing Patriot breached its

contract by failing to pay the $401,363.25 still owed as part of the final cost.

The complaint also averred fraudulent misrepresentation, negligent

misrepresentation, conversion, and unjust enrichment, and requested

judgment for $501,347.77, comprised of the remaining contract costs, plus

alleged discrepancies in operating expenses, inventory valuation, and

corporate stock tax. Appellant Sanft also filed a separate complaint for

confession of judgment, claiming Patriot defaulted on its separate promissory

note to pay him a total of $200,000.00 divided into monthly installments after

the sale. Judgment by confession was entered for $208,500.30 on Appellant

Sanft’s complaint.

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Patriot filed preliminary objections, which the court denied. Patriot then

filed an answer, responding to Appellants’ claims, asserting its own

counterclaims, and asking for partial summary judgment. Patriot also filed a

motion to strike or reopen the judgment entered in Appellant Sanft’s favor,

and requesting consolidation of the two complaints filed against it. The court

granted the motion for consolidation, denied the motion for partial summary

judgment, and ordered the judgment previously entered in favor of Appellant

Sanft stricken without prejudice.

The parties proceeded to a five-day bench trial. At the conclusion of

trial, the court ordered the parties to submit a post-trial statement and

proposed findings of fact and conclusions of law, in lieu of presenting closing

arguments to the court. On January 4, 2017, the court set forth its findings of

fact and conclusions of law, ultimately finding in favor of Patriot. Afterward,

the parties filed post-trial motions. The court denied and granted these in part,

and entered judgment in favor of Patriot for $21,219.09. Appellants filed a

notice of appeal, and Patriot filed a notice of cross-appeal.

Preliminarily, we note Appellants raise eleven issues in their appellate

brief. Issue selection is a key hallmark of appellate advocacy. Justice Robert

H. Jackson warned of the dangers of this shotgun approach many years ago:

Legal contentions, like the currency, depreciate through

overissue. The mind of an appellate judge is habitually receptive

to the suggestion that a lower court committed an error. But

receptiveness declines as the number of assigned errors

increases. Multiplicity hints at a lack of confidence in any one. Of

course, I have not forgotten the reluctance with which a lawyer

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abandons even the weakest point lest it prove alluring to the same

kind of judge. But experience on the bench convinces me that

multiplying assignments of error will dilute and weaken a good

case and will not save a bad one.

Ruggero J. Aldisert, J. “Winning on Appeal: Better Briefs and Oral Argument,”

at 130 (2d ed. 2003) (quoting Robert H. Jackson, “Advocacy Before the United

States Supreme Court,” 37 Cornell L.Q. 1, 5 (1951)). This “much quoted”

advice, unfortunately, “often ‘rings hollow’….” Commonwealth v. Robinson,

864 A.2d 460, 480 n.28 (Pa. 2004) (citing Ruggero J. Aldisert, J. “The

Appellate Bar: Professional Competence and Professional Responsibility–A

View From the Jaundiced Eye of the Appellate Judge,” 11 Cap. U.L. Rev. 445,

458 (1982)). But its importance cannot be overstated. See, e.g., Jones v.

Barnes, 463 U.S. 745, 751-752 (1983) (“Experienced advocates since time

beyond memory emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if possible, or at most

on a few key issues.”); Howard v. Gramley, 225 F.3d 784, 791 (7th Cir.

2000) (“[O]ne of the most important parts of appellate advocacy is the

selection of the proper claims to urge on appeal. Throwing in every

conceivable point is distracting to appellate judges, consumes space that

should be devoted to developing the arguments with some promise, inevitably

clutters the brief with issues that have no chance … and is overall bad appellate

advocacy.”); Aldisert, supra at 129 (“When I read an appellant’s brief that

contains more than six points, a presumption arises that there is no merit to

any of them.”)

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Nevertheless, we proceed by evaluating Appellants’ arguments

according to the following standard of review:

Our appellate role in cases arising from nonjury trial verdicts is to

determine whether the findings of the trial court are supported by

competent evidence and whether the trial court committed error

in any application of the law. The findings of fact of the trial judge

must be given the same weight and effect on appeal as the verdict

of the jury. We consider the evidence in a light most favorable to

the verdict winner. We will reverse the trial court only if its findings

of fact are not supported by competent evidence in the record or

if its findings are premised on an error of law. However, [where]

the issue … concerns a question of law, our scope of review is

plenary.

The trial court’s conclusions of law on appeal originating from a

non-jury trial are not binding on an appellate court because it is

the appellate court’s duty to determine if the trial court correctly

applied the law to the facts of the case.

Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53, 60-

61 (Pa. Super. 2012) (citation and quotation marks omitted; brackets and

ellipses in original). Also, the trial court, as the finder of fact, is free to believe

“all, part[,] or none of the evidence presented.” Ruthrauff, Inc. v. Ravin,

Inc., 914 A.2d 880, 888 (Pa. Super. 2006) (citation omitted). “Issues of

credibility and conflicts in evidence are for the trial court to resolve; this Court

is not permitted to reexamine the weight and credibility determinations or

substitute our judgment for that of the factfinder.” Id. (citation and internal

quotation marks omitted).

In their first issue, Appellants claim the $459,493.77 bank balance

relinquished to Appellants’ control at closing was in addition to the

$1,647,247.20 purchase price. Appellants aver they would not have sold the

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business if they realized the bank balance included $401,363.25 of the final

purchase price. Appellants point to the decrease in value of the assets between

the valuation sheet from February 28, 2006, and the March 7, 2006 closing

checklist the parties agreed to use, as evidence that the purchase price was

too low. Alternatively, Appellants argue even if the parties did not intend for

the bank balance to supplement the purchase price, then Patriot still owes

$401,363.25, as Patriot only paid $1,237,163.27 in cash and promissory notes

if the bank balance is excluded. Appellants conclude this Court must reverse

the trial court’s finding in favor of Patriot on the breach of contract claim. We

disagree.

Contract interpretation is a question of law; therefore, this Court is not

bound by the trial court’s interpretation. See Kraisinger v. Kraisinger, 928

A.2d 333, 339 (Pa. Super. 2007). “In construing a contract, the intention of

the parties is paramount and the court will adopt an interpretation which under

all circumstances ascribes the most reasonable, probable, and natural conduct

of the parties, bearing in mind the objects manifestly to be accomplished.”

Charles D. Stein Revocable Trust v. General Felt Industries, Inc., 749

A.2d 978, 980 (Pa. Super. 2000) (citation omitted).

In determining the intent of the parties to a written agreement,

the court looks to what they have clearly expressed, for the law

does not assume that the language of the contract was chosen

carelessly.

When interpreting agreements containing clear and unambiguous

terms, we need only examine the writing itself to give effect to

the parties’ intent. The language of a contract is unambiguous if

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we can determine its meaning without any guide other than a

knowledge of the simple facts on which, from the nature of the

language in general, its meaning depends. When terms in a

contract are not defined, we must construe the words in

accordance with their natural, plain, and ordinary meaning. As the

parties have the right to make their own contract, we will not

modify the plain meaning of the words under the guise of

interpretation or give the language a construction in conflict with

the accepted meaning of the language used.

On the contrary, the terms of a contract are ambiguous if the

terms are reasonably or fairly susceptible of different

constructions and are capable of being understood in more than

one sense. Additionally, we will determine that the language is

ambiguous if the language is obscure in meaning through

indefiniteness of expression or has a double meaning. Where the

language of the contract is ambiguous, the provision is to be

construed against the drafter.

In re Jerome Markowitz Trust, 71 A.3d 289, 301 (Pa. Super. 2013)

(citation omitted). When a contract is found to be ambiguous, “extrinsic or

parol evidence may be considered to determine the intent of the parties.” Z &

L Lumber Co. of Atlasburg v. Nordquist, 502 A.2d 697, 700 (Pa. Super.

1985) (citations omitted). “While unambiguous contracts are interpreted by

the court as a matter of law, ambiguous writings are interpreted by the finder

of fact.” Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citation omitted).

To establish a cause of action for breach of contract, a plaintiff must

show: the existence of the contract, including its essential terms; a breach of

duty imposed by the contract; and resultant damages. See McShea v. City

of Philadelphia, 995 A.2d 334, 340 (Pa. 2010).

To prove their breach of contract claim, Appellants presented evidence

of a written contract to sell their business for $1,647,247.20. See Complaint,

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filed 1/25/07, Asset Purchase Agreement, at 1-22. Appellant Sanft testified

that $401,363.25 of the purchase price was to come from an agreement

Owens and Helmer made on behalf of Patriot with GMAC, where GMAC would

lend the money against the value of certain used cars. See N.T., Trial,

10/17/16, at 76. Appellant Sanft testified the GMAC money was to be directly

wired into the company bank account relinquished to him at closing. See id.,

at 78. Appellant Sanft averred he believed the deposit would occur after

closing, because Owens and Helmer were not supposed to apply for GMAC

financing against used cars while in their capacity as executive managers. See

id., at 146. He testified he did not realize at the time of closing that the

anticipated deposit from GMAC was already reflected in the company’s bank

account. See id., at 77. He testified he would not have agreed to the

$1,647,247.20 final purchase price if he knew the GMAC deposit was already

in the bank account, since he expected to make over 2.1 million dollars from

the sale. See id., at 81.

On cross-examination, Appellant Sanft admitted the executive manager

agreement specifically allowed Owens and Helmer to borrow against cars

using GMAC financing. See id., at 147; Complaint, filed 1/25/07, Management

Agreement, at 4. Further, Appellant Sanft acknowledged that under this

financing arrangement, Patriot accepted all of the liability for the used cars.

See N.T. Trial, 10/18/16, at 6-7. And Appellant Sanft admitted he received

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the GMAC deposit in his bank account.1 See id., at 13; N.T. Trial, 10/17/16,

at 200. Counsel for Patriot introduced a document Appellant Sanft signed,

stating he had been paid for all of the assets purchased under the contract.

See N.T., Trial, 10/18/16, at 17. Finally, Appellant Sanft conceded the cash

in the bank account was not part of the Asset Purchase Agreement. See id.,

at 20. Nevertheless, Appellant Sanft testified, “everybody agreed” he would

be “walking away with 2.1 million dollars” after closing. N.T., Trial, 10/17/16,

at 81.

Based on the foregoing, we agree with the trial court that Appellants

failed to prove a breach of duty imposed by the contract occurred here. The

contract expressly excluded the assets in the bank from the purchase price.

See Complaint, filed 1/25/07, Asset Purchase Agreement, at 5. The contract

required Patriot to relinquish the bank balance to Appellants’ control. Patriot

did so. Appellant Sanft himself conceded Patriot delivered him exclusive

access to the bank account, as required by the contract. Appellant Sanft also

admitted the bank balance was left out of the listed purchase price.

Appellants’ claim that the bank balance was an integral part of the

agreement is belied by the terms of the contract. Also, Appellant Sanft’s

testimony concedes the GMAC payment was deposited into the bank account,

____________________________________________

1 The bank balance, which was introduced into evidence by a printout of the

deposits and withdrawals on the account, actually reflects a GMAC deposit of

$390,829.14. The shortfall is due to the twice-counted value of a

SmartAuction car erroneously credited to Patriot. The trial court’s order

reflects a credit to Appellants for this discrepancy.

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as the parties agreed. See N.T., Trial, 10/18/17, at 13; N.T., Trial, 10/17/16,

at 200. Thus, Appellants have failed to prove a breach of duty imposed by the

contract, and are due no relief on this issue.

Appellant’s second breach of contract issue regards an alleged shortfall

in Patriot’s payment for the parts inventory. Appellants maintain the difference

between the parts inventory reflected on the balance sheet provided at closing

and the excluded value of the Nissan parts was $133,112.25. Appellants

contrast this to the parts inventory column on the Asset Purchase Agreement’s

closing checklist, which reflects a final cost of $82,305.61 after Patriot chose

not to buy certain obsolete parts. Appellants demand $33,715.00, which they

assert is the difference between the parts and accessories Patriot retained,

and what Appellants were paid for those parts.

The terms of the Asset Purchase Agreement state that at the time of the

sale, Patriot was obligated to buy from Appellants all of the parts purchased

since October 1, 2004, when Owens and Helmer began acting as executive

managers. See Complaint, filed 1/25/07, Asset Purchase Agreement, at 4.

Patriot had the option to purchase parts stocked before October 1, 2004. See

id. The agreement compels the parties to use the GM Franchisor Parts

restocking guide to determine the value of the parts. See id. The agreement

also includes the following provision: “If at Closing, Buyer and Seller cannot

agree on the value of the GM Franchisor Parts they shall engage an

independent inventory service. The cost of the inventory service shall be

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shared equally by Buyer and Seller.” Id., at 9-10. The contract directed the

inventory, if commissioned, to be taken the Saturday before the closing date.

Here, the parties engaged an independent inventory service, Straub’s

Inventory Control, Inc. Straub’s conducted the inventory on Sunday, March 5,

2006, two days before closing. The inventory service valued all the parts the

company owned at $99,397.24. Patriot elected not to buy $17,091.63 of those

parts stocked before October 1, 2004, for a total of $82,305.61 in parts

purchased. This number is reflected on the closing checklist, and in the final

purchase price.

Appellants’ bald allegation that the book value of the parts was actually

$133,112.25 is irrelevant. The contract explicitly provides for settlement of

discrepancies in the value of parts by an independent inventory service.

Appellants do not contend that Straub’s was not an independent inventory

service, but rather that the value of the parts increased by over $30,000

between when Straub’s conducted its inventory two days before closing, and

when the trial balance sheet was printed. However, under the terms of the

contract, the valuation from the inventory service is the final assessment.

Consequently, Appellants are due no relief on this claim.

Appellants’ third claim challenges the trial court’s finding that the

operating loss for the Williams Pontiac Company was $30,154.76 for the first

week of March 2006. Appellants’ ninth claim argues the court failed to apply

their suggested offsets to Patriot’s counterclaims. Simply, Appellants ask us

to reweigh the evidence presented at trial about the company’s operating

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losses and Appellants’ offsets, and instead find in their favor. As stated above,

we will not substitute our judgment for that of the trial court in its capacity as

the fact-finder. See Ruthrauff, Inc., 914 A.2d at 888.

Appellants next advance a claim that the trial court improperly admitted

hearsay evidence on the basis of the business records exception.

With regard to the admissibility of evidence,

a trial court has broad discretion … and is not required to exclude

all evidence that may be detrimental to a party’s case. Such

rulings on the admission of evidence will not be overturned by this

Court absent a conclusion that the law has been overridden or

misapplied, or the judgment exercised is manifestly unreasonable,

or the result of partiality, prejudice, bias or ill-will, as shown by

the evidence or the record.

Schuenemann v. Dreemz, LLC, 34 A.3d 94, 102 (Pa. Super. 2011) (citations

omitted).

Rule 803 of our Rules of Evidence concerns the business record

exception to the hearsay rule and provides, in pertinent part, as follows.

The following are not excluded by the rule against hearsay,

regardless of whether the declarant is available as a witness:

…

(6) Records of a Regularly Conducted Activity. A record

(which includes a memorandum, report, or data compilation in

any form) of an act, event or condition if:

(A) the record was made at or near the time by – or

from information transmitted by – someone with

knowledge;

(B) the record was kept in the course of a regularly

conducted activity of a “business,” which term includes

business, institution, association, profession, occupation,

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and calling of every kind, whether or not conducted for

profit;

(C) making the record was a regular practice of that

activity;

(D) all these conditions are shown by the testimony of

the custodian or another qualified witness, or by a

certification that complies with Rule 902(11) or (12) or with

a statute permitting certification; and

(E) the opponent does not show that the source of

information or other circumstances indicate a lack of

trustworthiness.

…

Pa.R.E. 803(6).

Mary Ritter, Patriot’s financial comptroller and Williams Pontiac

Company’s former bookkeeper, testified at trial. She told the court she used

a car dealership bookkeeping system referred to as “Reynolds and Reynolds,”

where she tracked all of Patriot’s incoming and outgoing financial transactions.

See N.T., Trial, 10/25/16, at 16. Ritter testified she created a record of these

transactions within the Reynolds and Reynolds system, which Patriot

introduced as Defense Exhibit 25. See id. Ritter authenticated these

documents as business records, testifying she had personal knowledge of each

transaction and recorded these contemporaneously as her regular practice in

the ordinary course of business. See id., at 22. She also testified the records

could not be changed, once entered into the Reynolds and Reynolds system.

See id., at 23. Thus, the court properly admitted Defense Exhibit 25 as a

business record.

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To the extent Appellants challenge the record’s support for Defense

Exhibit 25, that contention goes to the weight of the evidence, not its validity

as a business record. Appellants did not preserve any claim regarding the

weight of the evidence in their Rule 1925(b) statement. Accordingly, it is

waived. See Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006)

(“An appellant’s failure to include an issue in his Rule 1925(b) statement

waives that issue for purposes of appellate review.”)

Appellants next contest the court’s dismissal of their negligent

misrepresentation claim pursuant to the economic loss rule and the gist of the

action doctrine. Additionally, Appellants challenge the trial court’s dismissal of

their unjust enrichment claim. Neither claim has merit.

“Pennsylvania law generally bars claims brought in negligence that

result solely in economic loss.” Gongloff Contracting, L.L.C. v. L. Robert

Kimball & Associates, Architects and Engineers, Inc., 119 A.3d 1070,

1076 (Pa. Super. 2015) (citation omitted). And Pennsylvania courts have long

recognized the gist of the action doctrine, which operates to keep breach of

contract and negligence claims as separate and distinct causes of action. See

Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 581-582 (Pa. Super. 2003).

In essence, the doctrine draws a line between tort actions, which are based

upon breaches of duties imposed as a matter of social policy, and contract

actions, which are based upon breaches of duties imposed by mutual

consensus. See id., at 582. The doctrine’s purpose is to preclude a plaintiff

from recasting ordinary breach of contract claims into tort claims. See id. The

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application of the doctrine is an issue of law. See eToll, Inc. v. Elias/Savion

Advertising, Inc., 811 A.2d 10, 15 (Pa. Super. 2002).

“A claim for unjust enrichment arises from a quasi-contract. A quasi-

contract imposes a duty, not as a result of any agreement, whether express

or implied, but in spite of the absence of an agreement, when one party

receives unjust enrichment at the expense of another.” Stoeckinger v.

Presidential Financial Corp. of Delaware Valley, 948 A.2d 828, 833 (Pa.

Super. 2008) (citation and internal quotation marks omitted). “[W]e may not

make a finding of unjust enrichment … where a written or express contract

between parties exists.” Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super.

1999) (citation omitted).

Appellants present an ordinary breach of contract claim, premised on

the existence of a written contract. Despite best efforts, Appellants’ indelicate

attempts to shoehorn that claim into various other legal theories for relief are

unavailing. Appellants failed to present meritorious claims for either negligent

misrepresentation or unjust enrichment. As such, the trial court properly

dismissed both claims.

Appellants also contest the trial court’s decision to grant Patriot’s

motions for compulsory nonsuit on Appellants’ claims for intentional

misrepresentation and conversion.

A court may enter a compulsory nonsuit on any and all causes of action

if at the close of the plaintiffs’ case against the defendant on liability, the court

finds the plaintiffs have failed to establish a right to relief. See Pa.R.C.P.

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230.1(a)(b). “On appeal, entry of a compulsory nonsuit is affirmed only if no

liability exists based on the relevant facts and circumstances, with

[Appellants] receiving the benefit of every reasonable inference and resolving

all evidentiary conflicts in [their] favor.” Baird v. Smiley, 169 A.3d 120, 124

(Pa. Super. 2017) (citations and internal quotation marks omitted).

Intentional misrepresentation occurs when a party makes

(1) a representation; (2) which is material to the transaction at

hand; (3) made falsely, with knowledge of its falsity or

recklessness as to whether it is true or false; (4) with the intent

of misleading another into relying on it; (5) justifiable reliance on

the misrepresentation; and, (6) the resulting injury was

proximately caused by the reliance.

Bortz v. Noon, 729 A.2d 555, 560 (Pa. 1999) (citation omitted). Meanwhile,

conversion 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.” HRANEC Sheet Metal, Inc. v.

Metalico Pittsburgh, Inc., 107 A.3d 114, 119 (Pa. Super. 2014) (citations

and internal quotation marks omitted).

Even giving Appellants the benefit of every reasonable inference, neither

claim has merit. Appellants wholly failed to prove Patriot made a material

misrepresentation, because the bank account balance was not material to the

Asset Purchase Agreement. Further, Appellants did not prove intent to

mislead. Likewise, Appellants’ conversion claim fails. Appellants expressly

gave consent to the transfer of the dealership when they signed the Asset

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Purchase Agreement. Thus, the court properly entered nonsuit on these

frivolous claims.

Finally, Appellants, as well as Patriot in its cross-appeal, claim the court

erred by failing to award prejudgment interest on their claims.

We review the trial court’s denial of prejudgment interest for abuse of

discretion. See Cresci Const. Services, Inc. v. Martin, 64 A.3d 254, 258

(Pa. Super. 2013). “[A] court has discretion to award or not award

prejudgment interest on some claims, but must or must not award

prejudgment interest on others.” Id. (citation omitted). Prejudgment interest

is a matter of right where the amount may be determined from the contract.

See Ely v. Susquehanna Aquacultures, Inc. 130 A.3d 6, 15 (Pa. Super.

2015). “If the breach consists of a failure to pay a definite sum in money or

to render a performance with fixed or ascertainable monetary value, interest

is recoverable from the time for performance on the amount due less all

deductions to which the party in breach is entitled.” Id., at 16 (quoting

Restatement (Second) of Contracts § 354 (1981)) (emphasis added).

Here, the court found Appellants were entitled to breach of contract

damages against Patriot in the following amounts: $11,745.00, for the value

of a SmartAuction car erroneously credited to Patriot; $30,154.76, for

operating losses incurred in the week before closing;2 and $4,401.00, for

____________________________________________

2 Patriot raises one other issue in its cross-appeal: whether it can be held liable

for the operating loss debt in the first week of March 2006, incurred by Owens

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capital stock tax. Additionally, the court found Patriot owed Appellant Sanft

$157,693.32, after Patriot breached its agreement to pay Sanft $200,000.00

as consideration for signing the non-compete clause in the Asset Purchase

Agreement. Based on these findings, Patriot owed Appellants $203,994.08.

However, the court determined Appellants also breached the Asset

Purchase Agreement. Appellants owed Patriot $163,296.95 for accounts

receivable, discussed above, and $61,916.22 for used cars paid for in the

Asset Purchase Agreement that were not delivered, for a total of $225,213.17.

Because Appellants were deemed jointly and severally liable for this amount,

the court offset the award by the money Patriot owed Appellants, for a total

of $21,219.09 owed to Patriot.

Because Appellants are not entitled to any net award after their losses

are offset, they are consequently ineligible for interest or attorney’s fees.

____________________________________________

and Helmer as part of the management agreement. Patriot cites to RKO-

Stanley Warner Theatres, Inc. v. Graziano, 355 A.2d 830 (Pa. 1976), for

the proposition that a promoter cannot incur liability on behalf of an

anticipated corporation, unless the corporation later expressly adopts those

obligations.

Here, Patriot has done precisely that. The Management Agreement is threaded

with language in anticipation of the Asset Purchase Agreement. By turn, the

Asset Purchase Agreement specifically makes the buyer, Patriot, responsible

for decisions made and obligations incurred by the managers under the

Management Agreement. See Complaint, filed 1/25/07, Asset Purchase

Agreement, at 1, 2, 4, 5, 7, 16, and 18. Thus, the court properly found Patriot

liable for the operating loss debt incurred under the Management Agreement.

See Trial Court’s Findings of Fact/Conclusions of Law, filed 1/4/17, at 16.

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J-A28026-17

Patriot, as the judgment winner in a breach of contract dispute, is entitled to

prejudgment interest. See Ely, 130 A.3d at 15.

Accordingly, we affirm the judgment entered in favor of Patriot. But we

remand for the limited purpose of calculating and awarding prejudgment

interest in favor of Patriot.

Judgment affirmed. Case remanded for computation and awarding of

prejudgment interest. Jurisdiction relinquished.

Judge Dubow joins the memorandum.

President Judge Gantman concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/3/18

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