J-A06012-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CARMEN ENTERPRISES, INC., F/D/B/A           IN THE SUPERIOR COURT OF
CRUISE HOLIDAYS OF NORRISTOWN &                   PENNSYLVANIA
BYEBYENOW.COM TRAVEL STORE

                       Appellant

                  v.

MURPENTER, LLC, D/B/A UNIGLOBE
WINGS TRAVEL

                                                 Nos. 950 EDA 2014


           Appeals from the Judgment Entered March 26, 2014
          In the Court of Common Pleas of Montgomery County
                      Civil Division at No: 02-07223

CARMEN ENTERPRISES, INC., F/D/B/A           IN THE SUPERIOR COURT OF
CRUISE HOLIDAYS OF NORRISTOWN &                   PENNSYLVANIA
BYEBYENOW.COM TRAVEL STORE



                  v.

MURPENTER, LLC, D/B/A UNIGLOBE
WINGS TRAVEL

                       Appellee                 Nos. 1115 EDA 2014


           Appeals from the Judgment Entered March 26, 2014
          In the Court of Common Pleas of Montgomery County
                      Civil Division at No: 02-07223


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY PANELLA, J.                       FILED AUGUST 12, 2015
J-A06012-15



       Carmen      Enterprises,      Inc.      (“Carmen”)   and   Murpenter,   LLC,

(“Murpenter”) cross-appeal from the judgment entered in the Montgomery

County Court of Common Pleas.1 We affirm in part and reverse in part.

       The relevant facts and tortured procedural history of this 13-year-old

case, as gleaned from the certified record2 and the trial court’s Rule 1925(a)

opinion, are as follows.        Bruce Chasan, Esq., is the sole shareholder of

Carmen, a Pennsylvania corporation that owned and operated Cruise

Holidays of Norristown.           Murpenter is a Pennsylvania limited liability

corporation that owns and operates Uniglobe Wings Travel. Murpenter is

owned by Doug Carpenter and Kate Murphy.

       On October 31, 2001, Carmen sold the assets of Cruise Holidays to

Murpenter, including what was purported to be a list of 1900 customer

names and addresses.         The Purchase and Sales Agreement (“Agreement”)

____________________________________________


1
  The parties purport to appeal from the order entered March 13, 2014. See
Notices of Appeal, 3/26/14 and 4/9/14. “Orders [pertaining to] post-trial
motions, however, are not appealable. Rather, it is the subsequent judgment
that is the appealable order when a trial has occurred.” Harvey v. Rouse
Chamberlin Ltd., 901 A.2d 523, 525 n.1 (Pa. Super. 2006) (citations
omitted). Judgment was not entered until March 26, 2014, thus the parties’
notices of appeal were mislabeled. Despite their errors, this Court will
address the appeals because judgment has been entered on the verdict. See
Mount Olivet Tabernacle Church v. Edwin L. Wiegand Division, 781
A.2d 1263, 1266 n. 3 (Pa. Super.2001), aff'd, 571 Pa. 60, 811 A.2d 565
(2002). We have corrected the caption accordingly.
2
  The trial court docket in this case contains 654 entries. The certified
record sent to this Court is comprised only of docket numbers 425-655,
documents filed after October 1, 2006.



                                            -2-
J-A06012-15



included a fixed and formulaic schedule of remittances to be paid by

Murpenter, with the last payment due on November 10, 2002. Paragraph 13

of the Agreement provided: “Any payment that is more than five calendar

days late is subject to an automatic 10 percent late fee. Buyer agrees to

pay the cost of any collection suit, including reasonable attorney’s fees.”

Agreement at ¶13. Murpenter also agreed to pay certain commissions to

Carmen over the twelve months following the date of the agreement, which

were to be offset by the scheduled payments noted above.         Murpenter

assumed the lease for a Compaq computer, which contained part of the

customer list that was accessible through “My Advanced Mail List” software

installed on the computer.       The other portion of the customer list was

accessible through “Cruiseweb” database. Together, the lists contained over

1900 names and addresses. Prior to the sale, Mr. Chasan showed Carpenter

and Murphy how to access the list on the Compaq computer. Although the

hiring of employees was not a condition of the Agreement, Murpenter hired

several of Carmen’s former employees, including lead sales person Jane

Couchara. Ms. Couchara was familiar with the Compaq computer and with

Carmen’s electronic client list files.

      Mr. Chasan relinquished the keys to the Carmen store to Murpenter on

November 1, 2001.        On November 28, 2001, Ms. Murphy emailed Mr.

Chasan asking for a readable computer disk containing the active client list

described in the Agreement. Mr. Chasan responded that the disk had been

left on Ms. Couchara’s desk, and was readable in the Compaq computer. He

                                         -3-
J-A06012-15



told Ms. Murphy that if there was a problem reading the disk, he would lend

Murpenter the software to load into one of their own computers.               On

November 30, 2001, Ms. Murphy responded that the disk was unreadable

and asked for the software.       Mr. Chasan sent the software disk and

instruction pamphlet to Murpenter on December 3, 2001, and emailed Ms.

Murphy and Mr. Carpenter to tell them it was on its way via certified mail.

      Murpenter remitted the agreed-upon scheduled payments through

March 2002. However, it paid the December 2001 and March 2002 payments

late, thus generating late fees pursuant to Paragraph 13 of the Agreement.

Murpenter never paid the late fees. It stopped its payments in April 2002

because Carmen allegedly had not provided a list of 1900 active customers,

as promised in the Agreement.

      On April 17, 2002, Mr. Chasan filed a complaint on behalf of Carmen

against Murpenter, alleging breach of express and implied contract,

trespass/property damage, conversion, and interference with contractual

obligations. Carmen sought specific performance, indemnification, replevin,

and damages, including attorneys’ fees.       Among other things, Carmen

sought to recover the late fees owed on the December 2001 and March 2002

payments; the April 1, 2002 payment of $7,500; plus fees, costs,

commission payments, and attorneys’ fees. Murpenter filed an answer, new

matter, and new matter counterclaims alleging, among other things, fraud

based on Carmen’s supplying a list that contained less than the 1900 active

customer names and addresses promised in the Agreement.          In response,

                                    -4-
J-A06012-15



Carmen filed motions for partial summary judgment with regard to

Murpenter’s fraud counterclaim and for sanctions.

       On January 7, 2003, Murpenter filed a motion for partial summary

judgment arguing that Carmen should be precluded from obtaining counsel

fees for services provided by Mr. Chasan because he was essentially a pro se

litigant not entitled to counsel fees.            On June 17, 2003, the Honorable

Steven T. O’Neill entered several orders that, among other things, denied

Carmen’s motion for partial summary judgment on the fraud counterclaim,

and granted, without explanation, Murpenter’s motion for partial summary

judgment on Carmen’s claim for counsel fees.                 The court, thus, precluded

Mr.   Chasan     from    receiving    any      contractual    attorney’s   fees   for   his

representation of Carmen in the instant litigation. The June 17 order did not

preclude the payment of attorneys’ fees to outside counsel.3 Judge O’Neill

denied Carmen’s motion for reconsideration.

       Extensive discovery and motions proceedings ensued. Carmen served

its first set of requests for admissions in response to Murpenter’s fraud

counterclaim.     Murpenter did not respond, and the requests were deemed

admitted pursuant to Rule 4014 of the Pennsylvania Rules of Civil Procedure.

Carmen then renewed its motion for partial summary judgment on the fraud


____________________________________________


3
 In addition to representation by Mr. Chasan, Stephen A. Sheinen, Esquire,
Garry Mezzy, Esquire, Alan B. Kane, Esquire, and Gilbert J. Scutti, Esquire,
each provided legal services to Carmen in connection with this litigation.



                                            -5-
J-A06012-15



counterclaim based on those admissions. Judge O’Neill granted the motion

and dismissed the fraud counterclaim on February 2, 2004.

      In April 2012, Murpenter filed a Chapter 7 bankruptcy petition, which

stayed proceedings in the trial court. Carmen filed a motion in Bankruptcy

Court to vacate the automatic stay, which was granted. Carmen then filed a

sanctions motion in Bankruptcy Court, alleging Murpenter’s Chapter 7 filing

had been in bad faith, and Carmen was entitled to counsel fees.           The

bankruptcy judge agreed and awarded fees to Carmen, including counsel

fees for Chasan.

      In April 2013, a bench trial in the instant case ensued before the

Honorable Richard P. Haaz.      On July 9, 2013, the court found in favor of

Carmen on all counts in its complaint, and awarded damages of $45,057.47.

Carmen filed a post-trial motion to mold the verdict to include prejudgment

interest, delay damages, costs and expenses, contractual attorneys’ fees,

and post-judgment interest. Murpenter filed a post-trial motion asking the

court to vacate its decision or order a new trial.

      Carmen thereafter filed two motions for sanctions against Ely Goldin,

Esq., counsel for Murpenter, and his law firm, Fox Rothschild, LLP, alleging

dilatory, obdurate, and vexatious conduct during the course of the litigation.

After oral argument, the court granted Carmen’s motion to mold the verdict,

and denied Carmen’s motions for sanctions and Murpenter’s post-trial

motion.   An evidentiary hearing followed, after which the court entered a

final order of judgment in favor of Carmen for $160,833.34, plus post-

                                      -6-
J-A06012-15



judgment interest.    The order included attorneys’ fees for Carmen’s four

outside counsel, but did not include fees for legal services performed by Mr.

Chasan because of Judge O’Neill’s June 17, 2003 Order and the coordinate

jurisdiction rule.   See Order, dated 3/13/14, at n.1 (“While Mr. Chasan

makes persuasive arguments that Judge O’Neill’s decision was erroneous, it

is ‘the law of the case.’”). Both parties appealed.

      Carmen’s first issue pertains to Judge O’Neill’s June 17, 2003 Order

granting partial summary judgment to Murpenter on the issue of Carmen’s

request for payment of counsel fees for legal services provided by Mr.

Chasan.     For the reasons stated below, we reverse the 2003 order, and

remand for a determination of a reasonable fee for Mr. Chasan’s legal

services.

      We will reverse an order granting summary judgment only for a

manifest abuse of discretion or an error of law. See Sellers v. Township

of Abington, 106 A.3d 679, 684 (Pa. 2014).            Summary judgment is

appropriate where the record shows that there are no genuine issues of

material fact, and the moving party is entitled to judgment as a matter of

law. See id. Whether there are issues of material fact presents a question

of law for which our standard of review is de novo and our scope of review is

plenary. See id. We review the record evidence in the light most favorable

to the non-moving party.     See Murphy v. Duquesne University of the

Holy Ghost, 777 A.2d 418, 429 (Pa. 2001).


                                     -7-
J-A06012-15


      Carmen first avers that Judge Haaz erred in molding the verdict by

refusing to grant attorney’s fee payable to Mr. Chasan because of Judge

O’Neill’s prior order on the same issue.   Carmen argues that it “believes”

Judge O’Neill’s order was erroneous, “and therefore Judge Haaz erred in not

reversing it.” Appellant’s Brief at 30. We disagree.

      Our courts have long recognized that “judges of coordinate jurisdiction

sitting in the same case should not overrule one another’s decisions.”

Commonwealth v. Starr, 664 A.2d 1326, 1331 (Pa. 1995) (citation

omitted). Departure from the law of the case doctrine “is allowed only under

exceptional circumstances, such as where there has been an intervening

change in the controlling law, a substantial change in the facts or evidence

giving rise to the dispute in the matter, or where the prior holding was

clearly erroneous and would create a manifest injustice if followed.” Id. at

1332 (citations omitted).

      Here, although Carmen asserts that it “believes” Judge O’Neill’s order

was erroneous, Carmen does not aver that the error created a “manifest

injustice.” Moreover, it does not assert any other circumstance that would

allow a departure from the law of the case doctrine.       Thus, we cannot

conclude that Judge Haaz erred in applying the law of the case doctrine.

      With respect to Judge O’Neill’s order granting partial summary

judgment to Murpenter, we agree with Carmen that the basis for the




                                    -8-
J-A06012-15


payment of attorney’s fees is contractual. The tenets of basic contract law

provide that

       where contract language has a meaning that is generally
       prevailing, it is interpreted in accordance with that meaning.
       See generally Restatement (2d) of Contracts §§ 202(3)(a),
       203(a). The intent of the parties to a written contract is
       ascertained from that writing, the contractual terms are ascribed
       their ordinary meaning, and where the language is
       unambiguous, intent is gleaned from the language. Thus, a
       party may not claim its reasonable expectations are inconsistent
       with clear contract language. Indeed, when we interpret
       contracts, the intent of the parties is held to be reasonably
       manifested by the language itself.

Gustine Uniontown Associates, Ltd. v. Anthony Crane Rental, Inc.,

892 A.2d 830, 837 (Pa. Super. 2006) (footnote and citations omitted).

       Paragraph 13 of the parties’ Agreement clearly and unambiguously

provides that “Buyer [Murpenter] agrees to pay the costs of any collection

suit, including reasonable attorney’s fees.”        Agreement, ¶13.        The

Agreement does not contain any provision excluding Mr. Chasan from

representing Carmen.

       Murpenter avers that because Mr. Chasan is the sole shareholder of

Carmen, there is no true attorney-client relationship between Carmen and

Mr. Chasan.      It also avers that Mr. Chasan acted essentially as a pro se

litigant and, therefore, is not entitled to attorney’s fees.4     In support,

____________________________________________


4
  Murpenter avers that Mr. Chasan’s conduct evinced an emotional
connection that “guid[ed] Carmen’s litigation strategy, which was
continuously punctuated by the filing of unnecessary and duplicative
(Footnote Continued Next Page)


                                           -9-
J-A06012-15


Murpenter cites cases in which attorneys, representing themselves or their

children, had attempted to collect attorney’s fees pursuant to statutory fee

shifting statutes. See Kay v. Ehrler, 499 U.S. 432 (1991); Woodside v.

School District of Phila. Bd. Of Educ., 248 F.3d 129 (3d Cir. 2001).

These cases are inapplicable.

      A corporation is a separate, fictional legal person distinct from its

shareholders or employees.           See Viso v. Werner, 369 A.2d 1185, 1188

(Pa. 1977) (“Nor are we persuaded that because the corporation in the

instant case was operated by the appellant as sole shareholder, its

independent identity should be ignored.”). “The fact that one person owns

all of the stock does not make him and the corporation one and the same

person.”    Barium Steel Corp. v. Wiley, 108 A.2d 336, 341 (Pa. 1954)

(citations omitted).

      We decline to disregard the principle set forth in Barium Steel and In

re Viso, that a corporation is a separate and distinct entity from its

shareholder. Here, unlike in the cases cited by Murpenter, the payment of

attorney’s fees was governed not by a fee-shifting statute, but by a contract

between two corporate entities. Based on the existence of the parties’
                       _______________________
(Footnote Continued)

motions,” that “unreasonably drove up the value of his legal services.”
Appellee’s Brief at 39.  Whether Mr. Chasan’s filing of numerous motions
was necessary or duplicative is a factor to be considered by the trial court in
determining a “reasonable” contractual attorney fee for Mr. Chasan’s
services.




                                           - 10 -
J-A06012-15


contract, we conclude that the trial court erred as a matter of law in granting

Murpenter’s motion for partial summary judgment on this issue. Carmen is

entitled to “reasonable attorney’s fees,” including those incurred for services

provided by Mr. Chasan.          Accordingly, we remand to the trial court for a

determination of what a “reasonable” fee is for the services provided by Mr.

Chasan in his capacity as a legal professional. We expect that the trial court

will need to conduct a hearing on this matter.

       In its second issue, Carmen avers that the trial court erred in denying

its post-verdict sanctions motions, filed in accordance with Rule 1023.25 of

the Pennsylvania Rules of Civil Procedure and section 2503 of the Judicial

Code,6 that were based on Murpenter’s false pleading and its vexatious

litigation conduct.     Carmen asserts that because the trial court dismissed

Murpenter’s fraud counterclaim after granting Carmen’s renewed motion for

partial summary judgment on that counterclaim, Murpenter’s claim never

had any factual support and its filing was therefore “arbitrary” and

____________________________________________


5
   Rule 1023.2 sets forth the procedure to be followed in filing a motion
under Rule 1023.1. Rule 1023.1 provides for an award of attorney’s fees
and expenses to a party where an opposing party has commenced and
pursued an action without legal or evidentiary support or for an improper
purpose.
6
  Section 2503 provides, in pertinent part, that a trial court may award a
reasonable counsel fee to a party if the opposing party has participated in
dilatory, obdurate, or vexatious conduct during the pendency of a matter.
See 42 Pa.C.S.A. § 2503(7).




                                          - 11 -
J-A06012-15


“vexatious.”     Appellant’s Brief at 36.7         Murpenter responds that Carmen

engaged in a pattern of practice involving serial motions in order to harass

Murpenter and its counsel.

       We review the denial of a motion for sanctions for an abuse of

discretion. See Dean v. Dean, 98 A.3d 637, 644 (Pa. Super. 2014). The

trial court has significant discretion in determining whether to impose

sanctions. See Pa.R.C.P. 1023.1, Explanatory Comment.

       An award of attorney’s fees is appropriate where utilized as a sanction

only where it is shown that a party’s conduct during the pendency of the

matter was “dilatory, obdurate or vexatious,” or in bad faith.            See 42

Pa.C.S.A. § 2503(7); Thunberg v. Strause, 682 A.2d 295, 299-300 (Pa.

1996).8 See also Twp. Of South Strabane v. Piecknick, 686 A.2d 1297,

1301 (Pa. 1996) (denying sanctions in contempt case and stating, “[w]e do

not believe the intent of the rule permitting the recovery of counsel fees is to

____________________________________________


7
  According to the trial court docket, Carmen first moved for sanctions in
connection with Murpenter’s claim of fraud on September 6, 2002. Over the
now 13 years of this litigation, Carmen has filed 19 motions and
supplemental motions for sanctions against Murpenter and its attorneys for
various discovery violations and other offenses. The trial court granted two
of Carmen’s motions for discovery sanctions against Murpenter’s attorney.
8
  “Arbitrary conduct is that which is based on random or convenient selection
or choice rather than based upon reason or nature. Litigation is vexatious
when suit is filed without sufficient grounds in either law or fact and if the
suit served the sole purpose of causing annoyance. A lawsuit is commenced
in bad faith when it is filed for purposes of fraud, dishonesty or corruption.”).
Thunberg, 682 A.2d at 299-300.



                                          - 12 -
J-A06012-15


penalize all those who do not prevail in an action.”). A grant of summary

judgment does not necessarily mean that the pleading at issue meets the

definition of vexatious or arbitrary conduct. See Santilo v. Robinson, 557

A.2d 416, 417 (Pa. Super. 1989).

      In addressing the trial court’s observation that it had failed to produce

sufficient evidence to support its post-trial sanctions motion, Carmen

emphasizes that its motion included “detailed factual averments to support a

finding of ‘vexatious,’ ‘obdurate,’ and/or ‘arbitrary’ conduct.” Appellant’s

Brief at 34.   Carmen also asserts that “the existence here of numerous

conclusive admissions obtained under Rule 4014 permits assessment and

reversal of the holding of ‘insufficient evidence.’” Id. at 35. Averments are,

of course, not evidence, they are merely averments, and Rule 4014

admissions do not support an allegation of vexatious, obdurate or arbitrary

conduct.

      The trial court in the instant case noted that it “‘has great latitude and

discretion with respect to an award of attorney’s fees pursuant to a statute.’”

Trial Court Opinion at 17 (quoting Scalia v. Erie Ins. Exchange, 878 A.2d

114, 116 (Pa. Super. 2005)).     The court then stated that it had carefully

reviewed Carmen’s numerous allegations of bad faith and concluded that

there was insufficient evidence that Attorney Goldin had acted in a way that

rose to an appropriate prohibited level. The trial court noted that at the time

of the filing of the counterclaim, Murpenter and its counsel had believed that


                                    - 13 -
J-A06012-15


fraud had occurred due to an incomplete customer list. The court observed

the following.

      Murpenter received 1,233 unique customer names from the
      Cruiseweb database. Chasan testified that together the files
      “Concise2” and “Sales-01” which were on the hard drive of the
      Compaq computer and on the disk made by Chasan on
      November 28, 2001, contained over 1900 names. As explained
      supra, these files were only accessible using “My Advanced Mail
      List Software.” The Cruiseweb database list was mistaken for
      the actual List contained on the “Concise2” and “Sales-01” files.
      The Cruiseweb list was only a subset of the List delivered to
      Murpenter on a disk, and naturally contained few names. The
      evidence demonstrated that Murpenter mistakenly thought the
      Cruiseweb database [was to have] contained the 1900+ names,
      when the names were actually stored on the Compaq computer
      and later saved to a disk created by Chasan.

Id. at 20-21.

      Our review of the portion of the certified record provided to this Court

supports the trial court’s finding that there is insufficient evidence to support

the grant of Carmen’s post-verdict motions for sanctions.           The trial court

conducted hearings on each of Carmen’s motions for sanctions that it filed

over the years and based its determinations upon its credibility assessments.

Where    “the    evidentiary   record   supports   the   trial   court’s   credibility

determination; we are bound to accept them.”             Samuel–Bassett v. Kia

Motors of America, Inc., 34 A.3d 1, 32 (Pa. 2011) (citation omitted). We




                                        - 14 -
J-A06012-15


conclude that the trial court properly exercised its discretion in denying

Carmen’s post-trial sanctions motion.9

       Turning now to Murpenter’s cross-appeal, all four issues are based on

Carmen’s alleged failure to provide 1900 names and addresses of active

customers as required by the parties’ Agreement.               Murpenter avers that

Carmen’s failure to deliver a readable disk containing the list agreed upon by

the parties in a timely manner represented a material breach of the

Agreement       that,     accordingly,         suspended   Murpenter’s   obligations.

Alternatively, it argues that Carmen only partially performed its obligations

when it delivered a list of only 1,244 active customers, and the court should

have awarded only a portion of Carmen’s damages.                    Murpenter also

summarily avers that Carmen did not transfer the client list to Murpenter in

a commercially reasonable manner and Carmen thus materially breached the

contract. Finally, it avers that Carmen violated the implied duty of good faith

by failing to advise Murpenter that “it considered Couchara a “liar” and

“thief” until nearly one month after closing.” and that Carmen breached its

duties as a “joint ventur[er].” Appellee’s Brief at 66-68.10

____________________________________________


9
  We note that this is Carmen’s second motion for sanctions based on this
same issue that was denied by the trial court after a hearing and argument.
Its first motion was in 2003.
10
   Murpenter also avers that the Agreement between the parties made them
joint venturers, as evidenced by the schedule of payments. In support,
Murpenter reiterates the same argument it asserted for its material breach
(Footnote Continued Next Page)


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J-A06012-15


      Our scope and standard of review of a verdict rendered after a non-

jury trial are as follows.

      Our review in a non-jury case is limited to whether the findings
      of the trial court are supported by competent evidence and
      whether the trial court committed error in the application of law.
      We must grant the court's findings of fact the same weight and
      effect as the verdict of a jury and, accordingly, may disturb the
      non-jury verdict only if the court’s findings are unsupported by
      competent evidence or the court committed legal error that
      affected the outcome of the trial. It is not the role of an
      appellate court to pass on the credibility of witnesses; hence we
      will not substitute our judgment for that of the factfinder. Thus,
      the test we apply is not whether we would have reached the
      same result on the evidence presented, but rather, after due
      consideration of the evidence which the trial court found
      credible, whether the trial court could have reasonably reached
      its conclusion.

Lynn v. Pleasant Valley Country Club, 54 A.3d 915, 919 (Pa. Super.

2012) (citations omitted).

      In its Rule 1925(a) opinion, the trial court observed the following.

      The list of 1900+ unique, active customers (the “List”) was
      saved in two files on [Carmen’s] Compaq computer. Chasan
      demonstrated to Carpenter and Murphy how to access these lists
      on the Compaq computer at a meeting on September 3, 2001.
      Murpenter was in possession of the former Carmen store, which
      included the Compaq computer, for the month of [November]
      2001. This evidence demonstrated Murpenter had constructive
      possession of the List beginning November 1, 2001. Chasan
      assumed Murpenter accessed the List on the Compaq computer
      when he saw labels and mailings when he visited the former
      Carmen store in November.
                       _______________________
(Footnote Continued)

claims. It points to no evidence or pleading that indicates that Carmen and
Murpenter understood their arrangement to be a joint venture, rather than a
sale and purchase. Accordingly, this claim is without merit.




                                           - 16 -
J-A06012-15


     Murpenter did not notify Carmen that it was missing the List until
     November 28, 2001, by an email from Murphy to Chasan.
     Chasan immediately responded by email that he copied the List
     onto a disk and left it at the former Carmen store, now occupied
     by Murpenter.       Chasan offered to lend Murpenter his “My
     Advanced Mail List” software if there was any problem reading
     the disk in the same email. After Murphy complained the disk
     was not readable without the software by email dated November
     30, 201, Chasan sent the “My Advanced Mail List” software by
     priority certified mail to Murpenter on December 3, 2001. This
     evidence demonstrates that Carmen made a good faith effort to
     deliver the List to Murpenter. The court found that Carmen
     material performed its contractual duties and any technological
     issue did not rise to the level of non-performance or breach of
     contract by Carmen. Further the [Agreement] never specified
     the List was to be delivered on a Disk. Chasan reasonably
     assumed that Murpenter was in possession of the List as it was
     saved in the Compaq computer which was in Murpenter’s
     possession and Chasan had already demonstrated how to access
     this list. Chasan also responded expediently when notified about
     the issues with the List. Accordingly, the court properly found
     Carmen performed its duties pursuant to the contract regarding
     delivery of the List.

                                   ***

     Murpenter received 1,233 unique customer names from the
     Cruiseweb database. Chasan testified that together the files
     “Concise2” and “Sales-01” which were on the hard drive of the
     Compaq computer and on the disk made by Chasan on
     November 28, 2001, contained over 1900 names. As explained
     supra, these files were only accessible using “My Advanced Mail
     List Software.” The Cruiseweb database list was mistaken for
     the actual List contained on the “Concise2” and “Sales-01” files.
     The Cruiseweb list was only a subset of the List delivered to
     Murpenter on a disk, and naturally contained few names. The
     evidence demonstrated that Murpenter mistakenly thought the
     Cruiseweb database contained the 1900+ names, when the
     names were actually stored on the Compaq computer and later
     saved to a disk created by Chasan. As discussed, supra, it was
     this List, along with the necessary “My Advanced Mail List”
     software, that was delivered to Murpenter by Chasan. Carmen
     performed its contractual duties.     This argument is without
     merit.

                                   - 17 -
J-A06012-15



                                 ***

      …Carmen did not breach the [Agreement] by failing to deliver
      the List. Carmen was not even aware until nearly a month after
      the [Agreement] was signed that Murpenter did not receive the
      list.   When notified of this problem, Carmen acted with
      reasonable promptness.

                                 ***

      As discussed supra, the evidence supported the court’s finding
      that Carmen performed its contractual duties and Murpenter
      breached its contractual duties. The evidence in the record
      failed to support that Chasan’s personal opinion of Couchara was
      material or relevant to the formation or performance of the
      contract between the parties. The retention of the Carmen
      employees by Murpenter after the execution of the [Agreement]
      was not a prerequisite for the execution of the [Agreement].
      Paragraph 4 stated that Murpenter would offer employment to
      the former Carmen employees, but the [Agreement] was “in no
      way contingent on whether Seller’s [Carmen’s] employees or
      outside sales agent accept Buyer’s [Murpenter’s] offer of
      employment or on how long any of the employees elect to
      remain employed or affiliated with the buyer.” [citing
      Agreement]. Although Carpenter testified that Couchara was the
      one they counted on for direction, her employment was not
      guaranteed nor a condition of the [Agreement].

Trial Court Opinion at 19-23 (citations to notes of testimony omitted).

      After due consideration of the evidence, which the trial court found

credible, we conclude that the trial court reasonably reached its verdict. The

findings of the court are supported by competent evidence and are free of

legal error. The court did not err in entering judgment in favor of Carmen.

      Judgment affirmed in part and reversed in part. Case remanded for

further proceedings in accordance with this memorandum.            Jurisdiction

relinquished.

                                    - 18 -
J-A06012-15


     Judge Ott joins the memorandum.

     Judge Jenkins files a concurring/dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/12/2015




                                 - 19 -
