J-A28026-17
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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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`Appellant
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`v.
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`WILLIAMS PONTIAC COMPANY AND
`BRUCE L. SANFT
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`
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`PATRIOT BUICK PONTIAC GMC,
`INC.
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`
`BRUCE L. SANFT
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`PATRIOT BUICK PONTIAC GMC,
`INC.
`
`
`
`
`v.
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` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` No. 1459 EDA 2017
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`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
`
` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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` No. 1964 EDA 2017
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`WILLIAMS PONTIAC COMPANY AND
`BRUCE L. SANFT
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`PATRIOT BUICK PONTIAC GMC, INC.
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`BRUCE L. SANFT
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`v.
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`Appellant
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`v.
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`NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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`
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`
`
`Appellant
`
`v.
`
`WILLIAMS PONTIAC COMPANY AND
`BRUCE L. SANFT
`
`
`
`
`
`
`PATRIOT BUICK PONTIAC GMC,
`INC.
`
`
`BRUCE L. SANFT
`
`
`
`
`PATRIOT BUICK PONTIAC GMC,
`INC.
`
`
`
`
`v.
`
` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
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`
`
`
`
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` No. 1459 EDA 2017
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`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
`
` IN THE SUPERIOR COURT OF
` PENNSYLVANIA
`
`
`
`
`
`
` No. 1964 EDA 2017
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`WILLIAMS PONTIAC COMPANY AND
`BRUCE L. SANFT
`
`
`
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`PATRIOT BUICK PONTIAC GMC, INC.
`
`
`
`
`BRUCE L. SANFT
`
`
`
`
`v.
`
`
`
`Appellant
`
`
`
`
`
`v.
`
`
`
`J-A28026-17
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`PATRIOT BUICK PONTIAC GMC, INC.
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`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
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`entered in the Court of Common Pleas of Montgomery County, which awarded
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`Appellee/Cross-Appellant, Patriot Buick Pontiac GMC, Inc. (hereafter
`
`“Patriot”), judgment of $21,219.09, plus interest. We affirm the judgment in
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`favor of Patriot. But we remand for the limited purpose of calculating and
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`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
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`(collectively, “Appellants”), signed a contract with Jason Owens and Chad
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`Helmer to act as executive managers of the Williams Pontiac Company’s car
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`dealership. Under the terms of the contract, Owens and Helmer were given
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`control over the day-to-day operations of the business, including procurement
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`of new vehicles and financing. The contract reflected the parties’ intention for
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`Owens and Helmer to eventually purchase the dealership. Completion of
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`certain prerequisites, including the purchase of an associated Nissan
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`J-A28026-17
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`dealership by a separate entity, were to be concluded prior to the execution
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`of a sale agreement.
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`
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`Owens and Helmer formed Patriot, a Pennsylvania corporation, in
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`anticipation of the sale. The parties extensively negotiated and signed the
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`Asset Purchase Agreement, which included, among other things, Patriot’s
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`purchase of customer lists, new cars, certain used cars, accessories, shop
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`equipment, and assignable leases. The agreement specifically excluded from
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`the sale any Nissan assets, and money in Williams Pontiac Company’s bank
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`accounts. The parties also signed a non-compete agreement, and Patriot
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`issued a promissory note to pay Appellant Sanft an additional $200,000.00 on
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`top of the sale price, disbursed in 60 monthly installments.
`
`
`
`One week before closing, Owens and Helmer provided Appellants with a
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`trial balance sheet reflecting the value of Williams Pontiac Company’s vehicles
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`and parts. That balance sheet showed, among other things, trade-in vehicles
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`valued at $1,021,289.00, accounts receivable at $689,329.08, and the
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`company bank balance at $165,233.00. On March 7, 2006, the day of closing,
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`Owens and Helmer provided an updated balance sheet, which all parties
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`agreed to use to determine the relevant asset values. The updated balance
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`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
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`amount owed by Patriot to Appellants at closing as $1,647,247.20, which
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`included $401,363.25 to be paid by the General Motors Acceptance
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`Corporation (“GMAC”), a vehicle financing company, as part of a financing
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`- 3 -
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`J-A28026-17
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`arrangement agreed to by all parties. The parties also agreed to offset the
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`total by $8,720.68. Thus, Patriot paid Appellants $1,237,163.27 in cash and
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`bank notes at closing.
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`
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`Following closing, Appellants claimed they had not received the GMAC
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`payment, and requested counsel for Patriot make inquiries as to its
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`whereabouts. After doing so, counsel for Patriot determined the payment had
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`already been deposited in Appellants’ corporate bank account at the time of
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`closing, and was thus part of the $459,493.77 bank balance Appellants
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`retained.
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`
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`In response, Appellants challenged counsel’s representation that the
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`GMAC deposit was part of the previously delivered bank balance. Unable to
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`resolve the dispute, Appellants filed a complaint, arguing Patriot breached its
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`contract by failing to pay the $401,363.25 still owed as part of the final cost.
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`The complaint also averred
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`fraudulent misrepresentation, negligent
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`misrepresentation, conversion, and unjust enrichment, and requested
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`judgment for $501,347.77, comprised of the remaining contract costs, plus
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`alleged discrepancies in operating expenses, inventory valuation, and
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`corporate stock tax. Appellant Sanft also filed a separate complaint for
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`confession of judgment, claiming Patriot defaulted on its separate promissory
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`note to pay him a total of $200,000.00 divided into monthly installments after
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`the sale. Judgment by confession was entered for $208,500.30 on Appellant
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`Sanft’s complaint.
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`- 4 -
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`J-A28026-17
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`
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`Patriot filed preliminary objections, which the court denied. Patriot then
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`filed an answer, responding to Appellants’ claims, asserting its own
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`counterclaims, and asking for partial summary judgment. Patriot also filed a
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`motion to strike or reopen the judgment entered in Appellant Sanft’s favor,
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`and requesting consolidation of the two complaints filed against it. The court
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`granted the motion for consolidation, denied the motion for partial summary
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`judgment, and ordered the judgment previously entered in favor of Appellant
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`Sanft stricken without prejudice.
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`
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`The parties proceeded to a five-day bench trial. At the conclusion of
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`trial, the court ordered the parties to submit a post-trial statement and
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`proposed findings of fact and conclusions of law, in lieu of presenting closing
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`arguments to the court. On January 4, 2017, the court set forth its findings of
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`fact and conclusions of law, ultimately finding in favor of Patriot. Afterward,
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`the parties filed post-trial motions. The court denied and granted these in part,
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`and entered judgment in favor of Patriot for $21,219.09. Appellants filed a
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`notice of appeal, and Patriot filed a notice of cross-appeal.
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`
`
`Preliminarily, we note Appellants raise eleven issues in their appellate
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`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:
`
`
`through
`the currency, depreciate
`like
`Legal contentions,
`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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`J-A28026-17
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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”
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`advice, unfortunately, “often ‘rings hollow’….” Commonwealth v. Robinson,
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`864 A.2d 460, 480 n.28 (Pa. 2004) (citing Ruggero J. Aldisert, J. “The
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`Appellate Bar: Professional Competence and Professional Responsibility–A
`
`View From the Jaundiced Eye of the Appellate Judge,” 11 Cap. U.L. Rev. 445,
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`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.
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`2000) (“[O]ne of the most important parts of appellate advocacy is the
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`selection of the proper claims to urge on appeal. Throwing in every
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`conceivable point is distracting to appellate judges, consumes space that
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`should be devoted to developing the arguments with some promise, inevitably
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`clutters the brief with issues that have no chance … and is overall bad appellate
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`advocacy.”); Aldisert, supra at 129 (“When I read an appellant’s brief that
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`contains more than six points, a presumption arises that there is no merit to
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`any of them.”)
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`J-A28026-17
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`
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`Nevertheless, we proceed by evaluating Appellants’ arguments
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`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-
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`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
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`“all, part[,] or none of the evidence presented.” Ruthrauff, Inc. v. Ravin,
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`Inc., 914 A.2d 880, 888 (Pa. Super. 2006) (citation omitted). “Issues of
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`credibility and conflicts in evidence are for the trial court to resolve; this Court
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`is not permitted to reexamine the weight and credibility determinations or
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`substitute our judgment for that of the factfinder.” Id. (citation and internal
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`quotation marks omitted).
`
`
`
`In their first issue, Appellants claim the $459,493.77 bank balance
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`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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`- 7 -
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`J-A28026-17
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`business if they realized the bank balance included $401,363.25 of the final
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`purchase price. Appellants point to the decrease in value of the assets between
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`the valuation sheet from February 28, 2006, and the March 7, 2006 closing
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`checklist the parties agreed to use, as evidence that the purchase price was
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`too low. Alternatively, Appellants argue even if the parties did not intend for
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`the bank balance to supplement the purchase price, then Patriot still owes
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`$401,363.25, as Patriot only paid $1,237,163.27 in cash and promissory notes
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`if the bank balance is excluded. Appellants conclude this Court must reverse
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`the trial court’s finding in favor of Patriot on the breach of contract claim. We
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`disagree.
`
`
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`Contract interpretation is a question of law; therefore, this Court is not
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`bound by the trial court’s interpretation. See Kraisinger v. Kraisinger, 928
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`A.2d 333, 339 (Pa. Super. 2007). “In construing a contract, the intention of
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`the parties is paramount and the court will adopt an interpretation which under
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`all circumstances ascribes the most reasonable, probable, and natural conduct
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`of the parties, bearing in mind the objects manifestly to be accomplished.”
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`Charles D. Stein Revocable Trust v. General Felt Industries, Inc., 749
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`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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`J-A28026-17
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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)
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`(citation omitted). When a contract is found to be ambiguous, “extrinsic or
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`parol evidence may be considered to determine the intent of the parties.” Z &
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`L Lumber Co. of Atlasburg v. Nordquist, 502 A.2d 697, 700 (Pa. Super.
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`1985) (citations omitted). “While unambiguous contracts are interpreted by
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`the court as a matter of law, ambiguous writings are interpreted by the finder
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`of fact.” Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004) (citation omitted).
`
`
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`To establish a cause of action for breach of contract, a plaintiff must
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`show: the existence of the contract, including its essential terms; a breach of
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`duty imposed by the contract; and resultant damages. See McShea v. City
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`of Philadelphia, 995 A.2d 334, 340 (Pa. 2010).
`
`
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`To prove their breach of contract claim, Appellants presented evidence
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`of a written contract to sell their business for $1,647,247.20. See Complaint,
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`- 9 -
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`J-A28026-17
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`filed 1/25/07, Asset Purchase Agreement, at 1-22. Appellant Sanft testified
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`that $401,363.25 of the purchase price was to come from an agreement
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`Owens and Helmer made on behalf of Patriot with GMAC, where GMAC would
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`lend the money against the value of certain used cars. See N.T., Trial,
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`10/17/16, at 76. Appellant Sanft testified the GMAC money was to be directly
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`wired into the company bank account relinquished to him at closing. See id.,
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`at 78. Appellant Sanft averred he believed the deposit would occur after
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`closing, because Owens and Helmer were not supposed to apply for GMAC
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`financing against used cars while in their capacity as executive managers. See
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`id., at 146. He testified he did not realize at the time of closing that the
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`anticipated deposit from GMAC was already reflected in the company’s bank
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`account. See id., at 77. He testified he would not have agreed to the
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`$1,647,247.20 final purchase price if he knew the GMAC deposit was already
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`in the bank account, since he expected to make over 2.1 million dollars from
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`the sale. See id., at 81.
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`
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`On cross-examination, Appellant Sanft admitted the executive manager
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`agreement specifically allowed Owens and Helmer to borrow against cars
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`using GMAC financing. See id., at 147; Complaint, filed 1/25/07, Management
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`Agreement, at 4. Further, Appellant Sanft acknowledged that under this
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`financing arrangement, Patriot accepted all of the liability for the used cars.
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`See N.T. Trial, 10/18/16, at 6-7. And Appellant Sanft admitted he received
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`- 10 -
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`J-A28026-17
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`the GMAC deposit in his bank account.1 See id., at 13; N.T. Trial, 10/17/16,
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`at 200. Counsel for Patriot introduced a document Appellant Sanft signed,
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`stating he had been paid for all of the assets purchased under the contract.
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`See N.T., Trial, 10/18/16, at 17. Finally, Appellant Sanft conceded the cash
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`in the bank account was not part of the Asset Purchase Agreement. See id.,
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`at 20. Nevertheless, Appellant Sanft testified, “everybody agreed” he would
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`be “walking away with 2.1 million dollars” after closing. N.T., Trial, 10/17/16,
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`at 81.
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`
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`Based on the foregoing, we agree with the trial court that Appellants
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`failed to prove a breach of duty imposed by the contract occurred here. The
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`contract expressly excluded the assets in the bank from the purchase price.
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`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
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`admitted the bank balance was left out of the listed purchase price.
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`Appellants’ claim that the bank balance was an integral part of the
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`agreement is belied by the terms of the contract. Also, Appellant Sanft’s
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`testimony concedes the GMAC payment was deposited into the bank account,
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`____________________________________________
`
`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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`- 11 -
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`J-A28026-17
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`as the parties agreed. See N.T., Trial, 10/18/17, at 13; N.T., Trial, 10/17/16,
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`at 200. Thus, Appellants have failed to prove a breach of duty imposed by the
`
`contract, and are due no relief on this issue.
`
`
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`Appellant’s second breach of contract issue regards an alleged shortfall
`
`in Patriot’s payment for the parts inventory. Appellants maintain the difference
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`between the parts inventory reflected on the balance sheet provided at closing
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`and the excluded value of the Nissan parts was $133,112.25. Appellants
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`contrast this to the parts inventory column on the Asset Purchase Agreement’s
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`closing checklist, which reflects a final cost of $82,305.61 after Patriot chose
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`not to buy certain obsolete parts. Appellants demand $33,715.00, which they
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`assert is the difference between the parts and accessories Patriot retained,
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`and what Appellants were paid for those parts.
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`
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`The terms of the Asset Purchase Agreement state that at the time of the
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`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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`- 12 -
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`J-A28026-17
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`shared equally by Buyer and Seller.” Id., at 9-10. The contract directed the
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`inventory, if commissioned, to be taken the Saturday before the closing date.
`
`
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`Here, the parties engaged an independent inventory service, Straub’s
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`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.
`
`
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`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.
`
`
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`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
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`to reweigh the evidence presented at trial about the company’s operating
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`- 13 -
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`J-A28026-17
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`losses and Appellants’ offsets, and instead find in their favor. As stated above,
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`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.
`
`
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`Appellants next advance a claim that the trial court improperly admitted
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`hearsay evidence on the basis of the business records exception.
`
`
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`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
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`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:
`
`
`
`the record was made at or near the time by – or
`(A)
`information
`transmitted by – someone with
`from
`knowledge;
`
`the record was kept in the course of a regularly
`(B)
`conducted activity of a “business,” which term includes
`business, institution, association, profession, occupation,
`
`- 14 -
`
`
`
`J-A28026-17
`
`making the record was a regular practice of that
`
`and calling of every kind, whether or not conducted for
`profit;
`
`(C)
`activity;
`
`all these conditions are shown by the testimony of
`(D)
`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
`
`the opponent does not show that the source of
`(E)
`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.
`
`- 15 -
`
`
`
`J-A28026-17
`
`
`
`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
`
`- 16 -
`
`
`
`J-A28026-17
`
`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.
`
`- 17 -
`
`
`
`J-A28026-17
`
`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
`
`- 18 -
`
`
`
`J-A28026-17
`
`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
`
`- 19 -
`
`
`
`J-A28026-17
`
`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.
`
`______________________________________
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