Lepre, G. v. Tommarello, P. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GERALD S. LEPRE, JR. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
PAUL TOMMARELLO D/B/A :
TOMMARELLO CYCLE & MOTOR : No. 166 WDA 2020
Appeal from the Order Dated December 18, 2019
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): AR-18-000067
BEFORE: SHOGAN, J., McLAUGHLIN, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: FILED SEPTEMBER 10, 2020
Gerald S. Lepre, Jr. (“Lepre”), pro se, appeals from the Order denying
his post-trial Motion, which rendered final the compulsory nonsuit against him
and in favor of Paul Tommarello D/B/A Tommarello Cycle & Motor
(“Tommarello”).1 We affirm.
On October 15, 2015, Lepre drove his 1975 Harley Davidson FXE
motorcycle to Tommarello’s motorcycle shop. At that time, Lepre asked
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1An order denying a compulsory nonsuit is not immediately appealable.
Williams v. A-Treat Bottling Co., Inc., 551 A.2d 297, 299 (Pa. Super.
1988). However, once the trial court denied Lepre’s post-trial Motion, the
denial of the compulsory nonsuit became appealable through the prism of the
Order denying the post-trial Motion. See Fleck v. Durawood, Inc., 529 A.2d
3, 5 (Pa. Super. 1987) (recognizing that, although the denial of a nonsuit is
not appealable, an appeal may be filed from the order denying post-trial
motions).
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Tommarello to install a BDL Open Belt Drive SHL-600 and Ultima Thunder Fire
Starter Motor 1.4w on his motorcycle. Lepre agreed to pay $500 for the
installation, and Tommarello agreed to return any removed parts to Lepre.
According to Lepre, Tommarello ran into a few issues readjusting the
transmission and the electrical wiring of the starter. As a result, Lepre paid a
total cost of $700 for the repairs and installation.
Immediately thereafter, Lepre test-drove the motorcycle for
approximately three (3) miles and returned to the repair shop. Lepre
attempted to take the motorcycle for a second ride. When Lepre put the
motorcycle in gear, bolts came loose inside the clutch hub, which shredded
the inside of the metal clutch housing plate. Tommarello attempted to repair
the loose bolts. Lepre started the motorcycle and attempted to pull out of the
driveway of the repair shop. However, the motorcycle completely shut down
and could not be restarted. After inspection, Tommarello advised Lepre that
he was going to have to return the ignition to the manufacturer for a new one.
However, Tommarello advised that he had a used part in stock, which he
would sell to Lepre for $200, which Lepre tendered.
Lepre’s motorcycle remained at the repair shop for a week. During a
subsequent test drive, the motorcycle again experienced problems.
Tommarello repaired the motorcycle for an additional charge. The motorcycle
finally shorted-out again a few days later and was left at Tommarello’s shop.
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Subsequently, Tommarello called Lepre and advised Lepre of the costs
of additional repairs. Tommarello directed Lepre to either pay for an additional
repair, or retrieve the motorcycle. Ultimately, Lepre retrieved his motorcycle.
Approximately one year later, Lepre took his motorcycle to another mechanic,
Todd E. Kraft (“Kraft”),2 who estimated the cost of repair and replacement of
parts. Kraft installed a new electrical system, including a wiring harness. Kraft
also installed an Electronic Starter Motor. The repairs totaled $1,500.00.
A few months later, while Lepre was operating the motorcycle, the Open
Belt Drive failed mechanically. When Lepre contacted the manufacturer, it
advised him that the Open Belt Drive was not properly installed.
Lepre filed a Complaint for breach of contract based on Tommarello’s
improper installation of the BDL Open Belt Drive and the Starter Motor. Lepre
also claimed a breach of warranty based upon Tommarello having warranted
that (1) materials and equipment furnished under the agreement would be
new and of good quality; (2) the work would be free from defects; and (3) the
work would conform to the requirements of the oral agreement and any
related documents. Lepre additionally raised claims of gross negligence,
fraudulent misrepresentation, and a violation of the Unfair Trade Practices and
Consumer Protection Law.3
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2 Kraft is now deceased.
3 See 73 P.S. §§ 201-1 to 201-9.3.
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At trial, Lepre appeared pro se, and presented only his own testimony
to establish his causes of action. At the close of his testimony, upon the
Motion of Tommarello, the trial court entered a compulsory nonsuit against
Lepre. Lepre filed a post-trial Motion, which the trial court denied. Thereafter,
Lepre filed the instant timely appeal, followed by a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal.
Lepre presents the following claims for our review:
1. Did the trial court commit [an] error of law, abuse its
discretion and violate constitutional rights in holding a bench
trial when a pre-trial demand had been [made] for a jury[,]
and a jury trial [was] paid for on the arbitration appeal?
2. Did the trial court commit [an] error of law, abuse its
discretion and violate constitutional rights in a civil
suppression or exclusion of valid evidence of [Tommarello’s]
liability or guilt?
Brief for Appellant at 4.
Initially, we observe that
[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. Pa.R.C.P. No. 230.1(a),
(c); see Commonwealth v. Janssen Pharmaceutica, Inc., …
8 A.3d 267, 269 n.2 (Pa. 2010). 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.” Agnew v. Dupler,
… 717 A.2d 519, 523 (Pa. 1998). The compulsory nonsuit is
otherwise properly removed[,] and the matter remanded for a
new trial.
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Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582, 595-96 (Pa.
2012).
Lepre first claims that the trial court improperly denied him a jury trial.
Brief for Appellant at 7. According to Lepre, he paid for a jury trial at the time
of his arbitration appeal. Id. However, Lepre contends that the trial court
conducted a bench trial without an express waiver of his right to a jury trial.
Id. Lepre argues that this error requires the grant of a new trial. Id.Our review of the record discloses that the trial court entered a nonsuit
at the close of Lepre’s evidence. See N.T., 11/15/19, at 91 (wherein at trial,
the trial court states that it will take the Motion for a nonsuit under
advisement, and a decision will be forthcoming); Trial Court Order, 11/19/19
(wherein the trial court granted Tommarello’s Motion for compulsory nonsuit).
The trial court’s entry of a compulsory nonsuit rendered moot Lepre’s claim
based upon the denial of a jury trial, as the matter would not have reached
the jury for deliberation. See, e.g., Front St. Dev. Assocs., L.P. v.
Conestoga Bank, 161 A.3d 302, 304 (Pa. Super. 2017) (determining that
the affirmance of the order granting judgment on the pleadings rendered moot
the propriety of an order striking a jury trial demand). Accordingly, we cannot
grant Lepre relief on his first claim.
In his second claim, Lepre argues that the trial court improperly
excluded evidence regarding Tommarello’s liability. Brief for Appellant at 7.
Lepre argues that
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the trial court excluded each and every document [that Lepre]
attempted to submit during the forced bench trial. The trial court
suppressed or excluded this evidence based on the idea that
[Tommarello] never received a copy of these documents, because
he no longer received mail at the address listed on the trial court
docket….
Id. at 8. According to Lepre, it was not his duty to keep the trial court
informed of Tommarello’s address. Id.
We review the trial court’s ruling on the admissibility of evidence for an
abuse of discretion. Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014).
We will not overturn such a ruling absent an abuse of discretion or
misapplication of law. Id.In its Opinion, the trial court deemed this claim waived based upon
Lepre’s failure to raise it in his post-trial Motion. See Trial Court Opinion,
2/20/20, at 2-4. We agree.
An appellant must file post-trial motions to preserve issues for appellate
review; issues not raised in post-trial motions are waived. Lenhart v. Cigna
Cos., 824 A.2d 1193, 1196 (Pa. Super. 2003); see also Chalkey v. Roush,
757 A.2d 972, 975 (Pa. Super. 2000) (en banc) (noting that the purpose of
requiring issues to be raised in a post-trial motion is “to provide the trial court
the first opportunity to review and reconsider its earlier rulings and correct its
own error”). Further, Rule 227.1(b)(2) provides that “post-trial relief may not
be granted unless the grounds therefor … are specified in the motion.”
Pa.R.C.P. 227.1(b)(2). The comment to the rule explains that,
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[i]n requiring the motion to state the specific grounds therefor,
motions which set forth mere “boilerplate” language are
specifically disapproved. A post-trial motion must set forth the
theories in support thereof “so that the lower court will know what
it is being asked to decide.” Frank v. Peckich, … 391 A.2d 624,
632-633 ([Pa. Super.] 1978).
Pa.R.C.P. 227.1, cmt.
In his post-trial Motion, Lepre failed to identify any trial court evidentiary
rulings that he sought to challenge, and “the specific grounds therefor[.]” See
id. As such, we discern no abuse of discretion by the trial court in deeming
this claim waived. See id.Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2020
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