Opinion
J-A03041-18 No. 2690 EDA 2017 No. 2691 EDA 2017 No. 2692 EDA 2017
08-29-2018
BANK OF NEW YORK MELLON TRUST COMPANY, N.A. Appellant v. MARK AND LISA BUTTERLINE, LIBERTY MUTUAL INSURANCE CO. A/S/O MIKAL & STEPHEN BENCZE AND MIKAL & STEPHEN BENCZE Appellees MIKAL AND STEPHEN BENCZE v. LIBERTY MUTUAL INSURANCE CO. AND THE BANK OF NEW YORK MELLON APPEAL OF: THE BANK OF NEW YORK MELLON LIBERTY MUTUAL INSURANCE CO. A/S/O MIKAL AND STEPHEN BENCZE, Appellee v. THE BANK OF NEW YORK MELLON CORP., Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered August 11, 2017 in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 150901529 Appeal from the Order Entered August 11, 2017 in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 141003255 Appeal from the Order Entered August 15, 2017 in the Court of Common Pleas of Philadelphia County
Civil Division at No.: 141001662 BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
In these consolidated cases, Appellant, the Bank of New York Mellon Corp., (Mellon), appeals from the orders entering judgment on August 11 and August 15, 2017, confirming the order of May 3, 2017, against it and in favor of Appellees Mikal and Stephen Bencze (the Benczes), Liberty Mutual Insurance Company (Liberty Mutual, or Liberty), and Mark and Lisa Butterline (the Butterlines), after the trial court denied reconsideration. The suits address responsibility for the repair of property damage following a hurricane. We affirm.
We take the underlying facts and procedural history in this matter from the trial court's May 3, 2017, August 11, 2017, and October 3, 2017 opinions, as well as our independent review of the certified record.
These consolidated actions concern property damage to the home of the Benczes at 2715 E. Huntingdon Street (Bencze Property) in Philadelphia. The damage occurred during Superstorm Sandy when the wall of the adjacent property, 2713 E. Huntingdon Street (the 2713 Property), fell onto the roof of the Bencze Property. Appellees brought legal actions, complaining that Mellon, as owner, did not repair the 2713 Property. Mellon maintains that it had no legal obligation to do so.
The Benczes sued Mellon, as owner of the 2713 property, for both equitable and monetary relief. Liberty Mutual filed a separate action against Mellon for subrogation. Mellon filed a third action against the Butterlines, the previous owners of the 2713 Property, for trespass and contribution. The trial court consolidated these three actions for a bench trial. Following trial, the trial court found in favor of the Benczes and Butterlines and against Mellon.
The Benczes also sued their homeowner's insurance carrier, Liberty Mutual, for breach of contract. The trial court severed the claim to be resolved by a separate trial.
The Benczes purchased their home in July of 2009. The house is a two-story row home with a flat roof. The 2713 Property is a three-story row home with a flat roof. The properties are semi-detached at the first level, with the first floor wall separated by a narrow alleyway. The properties share a party wall at the second floor level. The 2713 Property has a third floor, which rises above the Bencze property and overlooks its roof. Both properties have a basement. The record is unclear as to whether the basements share a subterranean party wall.
Prior to the fall of 2007, the Butterlines defaulted on their mortgage. Mellon commenced a foreclosure action against them in November, 2007. Following entry of judgment against the Butterlines, Mellon purchased the 2713 Property at sheriff sale on November 1, 2011. The Sheriff Deed transferred the 2713 Property to Mellon on July 23, 2012. Mellon recorded it on October 31, 2012.
As noted, during Superstorm Sandy in October of 2012, portions of the 2713 Property's third floor wall fell onto the Bencze Property's roof. The trial court credited the Benczes' testimony about the damage this caused, including at least five puncture holes in their roof. The falling debris also caused the flashing on the 2713 Property's third floor wall to separate, allowing debris to fall between the properties. The Benczes produced photographic evidence to support these contentions.
The Benczes took immediate action, including submitting a claim to Liberty Mutual, cleaning the debris, and placing a tarpaulin over part of the roof. Soon after the storm, in November 2012, water from the 2713 Property began leaking into the Bencze Property, causing water stains and bubbles in the portions of the Bencze Property adjacent to the damaged areas of the 2713 Property. While the Benczes attempted to have the property repaired, any attempts were unsuccessful because of the unrepaired damage to the 2713 Property. The Benczes continually contacted Mellon and its mortgage servicer by telephone and e-mail in an attempt to have the 2713 Property repaired. The evidence at trial, credited by the trial court, demonstrated that throughout a two-year period Mellon assured the Benczes that it would repair the 2713 Property but did not do so.
Liberty Mutual inspected the Bencze Property, tarped the puncture holes and made two payments to the Benczes in November and December 2012.
The Bencze Property continued to sustain ongoing damage, particularly water damage after rain and snow. The basement became wet and the house began to smell. Additional parts of the 2713 Property's third floor wall fell onto the Bencze Property Roof in July 2013.
Further damage occurred in January 2014, when a flood took place in the 2713 Property. After the flood, the Benczes promptly notified Altisource, Mellon's property manager. However, it took no action for nineteen days, allowing the water to leak into the Bencze property basement. As there continued to be on-going water damage every time it rained or snowed, the Benczes noticed the presence of mold in their property, causing illness to both themselves and their pets. At trial, the Benczes provided photographic and video evidence of the continuing damage to their property. There had been no problems with water damage or mold prior to Superstorm Sandy. The Benczes had not made any property claims prior to Superstorm Sandy.
At the time of Superstorm Sandy, the Butterlines still occupied the 2713 Property. Mellon filed an ejectment action against them in November 2012, and Mellon was granted possession in October 2013. It had the Butterlines removed from the 2713 Property on January 31, 2014. Following the ejectment of the Butterlines, squatters occupied the 2713 Property. The trial court credited the Benczes testimony regarding their calls to the police and their attempts to notify Mellon that the 2713 Property was not secured.
In September 2014, Mr. Butterline observed that the door to the 2713 Property was wide open. The property showed evidence of water and other damages; despite this, the Butterlines again took possession of the property, restored the utilities, and made other repairs to the property. The trial court credited Mr. Butterline's testimony that he did not enter the property between January and September 2014, and did not cause any damage to it.
Because of Mellon's failure to repair the 2713 Property, the Benczes attempted to remediate the damages themselves. Dirk Voories, of ABD Construction, who testified as an expert at trial, was present during attempts to repair the third floor wall of the 2713 Property. He also examined repairs made to the Bencze Property and found them to be sound.
Unfortunately, the Benczes were unable to remediate the mold damages because water continued to infiltrate their property whenever it rained. In September 2014, the Benczes relocated because of health concerns, which they believed were caused by mold. The trial court credited Mr. Bencze's testimony that in May 2015, he stayed overnight in the Bencze Property and became ill.
As noted, the Benczes sought injunctive relief against Mellon. In December 2014, the trial court entered an order which would again allow ejectment of the Butterlines, and which required Mellon to begin repairs and maintain the 2713 Property within ten days of gaining possession. Mellon obtained possession on February 5, 2015, but did not comply with the order.
At trial, Mellon argued that it had a policy of not entering occupied properties. However, the trial court found that Mellon made no attempts between November 2012 and 2015, even during the periods that the 2713 Property was unoccupied, to repair it. The trial court further held that Mellon had access to the exterior of the 2713 Property at all times and neither Mellon nor its agents tried to contact either the Butterlines or Benczes in order to gain access to either property. The court noted that Mellon did not seek emergency legal relief to request access to property, and did not make any timely attempt to repair the property after gaining possession in February 2015. In sum, the court determined that Mellon did not make any attempts to repair the 2713 Property until January 2016.
Pursuant to a court order, the parties undertook a joint inspection of the properties on August 20, 2015. Among those present were the Benczes, their expert Mr. Voories, and Mark Childs, who was a field service manager for Altisource. Both Mr. Voories and Mr. Childs wrote reports which were admitted into evidence at trial. However, despite being granted access, Mr. Childs, unlike Mrs. Bencze and Mr. Voories, did not inspect the Bencze Property roof.
At trial, Mellon maintained the position it adopted throughout the litigation, that it was not legally responsible for the condition of the 2713 Property until it obtained actual possession. In the alternative, Mellon also argued that much, if not all, of the water damage to the Bencze Property was caused by a faulty downspout and tear in the Bencze Property roof. Mr. Voories disputed this claim, and Mr. Childs' reports generated at the time did not reflect any concerns about the Bencze Roof downspout. Mr. Voories, testifying as an expert with a reasonable degree of certainty, concluded that water was coming from the 2713 Property and damaging the Bencze Property. He made additional inspections of the Bencze Property and did not find that their downspout was faulty.
The trial court noted that Mr. Voories' report used less certain language but ultimately found that the report was not inconsistent with the trial testimony because it was not created in anticipation of litigation and not written as a legal document.
In April 2016, Mr. Bencze installed foam around the base of his downspout to ensure that it did not became loose from the drainpipe.
Mellon attempted to qualify Mr. Childs as an expert but the trial court declined. The trial court did permit Mr. Childs to testify as a fact witness. In his report, written after the joint inspection, Mr. Childs could not state with certainty whether any damage occurred between the first and second ejectments of the Butterlines.
Mr. Childs did not address whether water infiltration from the 2713 Property caused damage to the Bencze Property during other periods. Mr. Childs was also unfamiliar with property conditions prior to 2013. Despite making three further visits to the property, he never inspected the Bencze Property roof. Mr. Childs did take a photo that he claimed showed a tear in the Bencze Property roof, but that photo was taken from the roof of the 2713 Property, and, again, Mr. Childs did not mention the alleged tear in his written reports. While those reports reflect Mr. Childs' observation that moisture readings he took at the Bencze Property were greater around the area of the Bencze downspout, the report did not reflect his claim at trial that the downspout was disconnected from the drainpipe.
The Bencze's civil and mechanical engineer, Edward Pridgen, also inspected both properties and testified as an expert at trial. Like Mr. Voories, he determined that the damage to the Bencze Property, including the water damage, was caused by the damage to the 2713 Property's wall and roof. Mr. Pridgen testified that the 2713 Property's roof needed to be replaced. Mr. Pridgen reviewed Mr. Childs' photo of an alleged tear in the Bencze roof but did not see anything in the photo that caused him concern. He did note damage to the Bencze downspout but found it to be both properly installed and intact. His opinions that the damage to the 2713 property was causing damage to the Bencze Property were based upon a reasonable degree of certainty given his experience and knowledge in construction.
A non-jury trial in these matters took place on September 28, November 8, and November 15, 2016. On May 3, 2017, the trial court issued an opinion finding in favor of Liberty Mutual, the Benczes and the Butterlines. On May 12, 2017, Mellon filed post-trial motions. On June 2, 2017, the Benczes and Liberty Mutual filed a motion for delay damages. On August 11, 2017, the trial court denied Mellon's motion for post-trial relief, granted the Benczes' motion for delay damages, and denied Liberty Mutual's motion for delay damages. On August 15, 2017, the parties praeciped for entry of judgment. The instant, timely appeal followed.
In response to the trial court's August 25, 2017 order, Mellon filed a statement of errors complained of on appeal on September 6, 2017. See Pa.R.A.P. 1925(b). The trial court filed an opinion on October 3, 2017. See Pa.R.A.P. 1925(a).
On appeal, Mellon raises the following questions for our review.
1. Whether the trial [court] erred as a matter of law in imposing liability on [Mellon] for damages allegedly arising prior to [Mellon's] acquiring actual possession of the [2713 Property?]
2. Whether the trial [court] erred in imposing liability on [Mellon] and awarding damages to the Benczes and Liberty[] when neither plaintiff proved proximate causation or damages by a preponderance of the evidence[?] This issue includes, but is not limited to, the following specific points:
a. Whether the trial [court] erred in relying on an unqualified expert to reach [its] determinations regarding water and mold damage[?](Mellon's Brief, at 4-5).
b. Whether the trial [court] erred in reaching [its] determinations regarding water and mold damage without objective evidence including, without limitation, moisture samples or mold analysis[?]
3. Whether the trial [court] erred in imposing liability on [Mellon] and awarding damages on the Benczes' and [Liberty's] claim for water damage because the Benczes and Liberty[] failed to sustain their burden of proving that any water damage was the legal or proximate result of the condition of the [2713 Property?]
4. Whether the trial court erred in refusing to qualify Mark Childs as an expert witness causing prejudice to [Mellon] by, among other things, precluding admission of a report by a mold expert and the written report and analysis of mold spore samples by an independent laboratory[?]
5. Whether the trial court erred in refusing to award [Mellon] damages or contribution against [the Butterlines?]
Mellon's argument section does not match its statement of the question involved. ( See Mellon's Brief, at 4-5, 18-49); see also Pa.R.A.P. 2119(a) ("The argument shall be divided into as many parts as there are questions to be argued[.]"). Nonetheless, we will address its issues to the extent that we can determine them, because this discrepancy does not hamper our review. See Donahue v. Fed. Express Corp., 753 A.2d 238, 241 n.3 (Pa. Super. 2000).
In its first claim, Mellon argues that it "had no legal duty or obligation to make repairs to the [2713] Property prior to [its] acquiring actual possession of the [property]." ( Id. at 19; see also id. at 19-31).
Initially, we note that this inquiry involves a pure question of law. Accordingly, our standard of review is de novo and our scope of review is plenary. See Liberty Mut. Ins. Co. v. Domtar Paper Co., 113 A.3d 1230, 1234 (Pa. 2015) (standard of review as de novo and scope of review as plenary for pure questions of law).
After a thorough review of the record, the parties' briefs, the applicable law, and the well-reasoned opinion of the trial court, we conclude that there is no merit to this issue. The trial court opinion properly disposes of this question. ( See Trial Court Opinion, 5/03/17, at 19-22) (finding that: (1) Mellon owned 2713 Property at time of Superstorm Sandy; (2) Mellon had duty to use and maintain property in manner that did not harm adjoining landowners; (3) Mellon's reliance on Zisman v. City of Duquesne , 18 A.2d 95 (Pa. Super. 1941), is misplaced; (4) once Mellon foreclosed on 2713 Property there was no longer mortgagee/mortgagor relationship between it and Buttlerines; (5) Mellon was lawful owner of property as of date of sheriff's sale; (6) Mellon was not landlord out of possession; (7) Mellon took no action to remediate or cure conditions that caused damage to Bencze Property; and (8) Mellon breached its duty and was negligent for failing to repair 2713 Property).
We agree with the trial court that when Mellon purchased the property at sheriff's sale in 2011, it assumed all risks associated with the property. CSS Corp. v. Sheriff of Chester Cnty., 507 A.2d 870, 872 (Pa. Super. 1986), appeal denied, 522 A.2d 559 (Pa. 1987) ("A sheriff's sale is made without warranty; the purchaser takes all the risk, and the rule of caveat emptor applies in all its force."). (citations omitted). Mellon cannot now avoid this fact and attempt to equate itself with a mortgagee or landlord out-of-possession. It received all rights, title and interest in the property at the time of purchase and must now assume the responsibility that comes with that ownership. See id. Accordingly, we reject Mellon's first issue on the basis of the trial court's opinion.
In its second and third issues, Mellon challenges the sufficiency of the evidence, claiming that the Benczes and Liberty Mutual failed to prove that any of its negligence caused any of the damages. ( See Mellon's Brief, at 31-41).
Specifically, Mellon complains that: (1) the Benczes "did not offer competent evidence that any 'post-acquisition' damages were caused by [its] negligence" ( id. at 33); (2) "[t]he only competent evidence regarding the cause of 'post-acquisition' damages disproved [the Benczes'] theory and their experts['] unsupported opinions" ( id. at 37); and (3) the testimony of Mellon witness Mark Childs "highlighted [the Benczes'] failure to meet their burden of proof[.]" ( Id. at 39). We disagree.
We apply the following standard of review to a nonjury trial verdict:
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.Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53, 60-61 (Pa. Super. 2012), appeal denied, 69 A.3d 599 (Pa. 2013) (citation and quotation marks omitted; brackets and ellipses in original). 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), appeal denied, 962 A.2d 1197 (Pa. 2008) (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 determination or substitute our judgment for that of the factfinder." Id. (citation and internal quotation marks omitted).
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.
Initially, Mellon's argument disregards our standard of review, which requires that we view the evidence in the light most favorable to the Benczes as verdict winner. Mellon only discusses the evidence in the light most favorable to itself and ignores all other evidence. ( See Mellon's Brief, at 33-41). It argues that the trial court erred in crediting the Benczes' expert witnesses and not crediting their fact witness, Mark Childs. ( See id.). Mellon overlooks that this Court does not re-weigh the evidence, nor do we engage in credibility determinations.
Moreover, to the extent that Mellon argues that the trial court erred in qualifying the Benczes' expert witnesses or in not sustaining its objections to their testimony, ( see id. at 35-36), these contentions are not properly before us, because Mellon did not raise them in its statement of the questions involved. ( See Mellon's Brief at 4-5); see also Southcentral Employment Corp. v. Birmingham Fire Ins. Co. of Pa., 926 A.2d 977, 983 n.5 (Pa. Super. 2007) (holding that issues not explicitly raised in statement of questions involved are waived); Pa.R.A.P. 2116(a). Lastly, Mellon fails to cite to any relevant legal authority in support of its propositions. ( See Mellon's Brief, at 33-41). However, while this Court could find that Mellon's failure to argue this issue properly results in waiver, we decline to do so.
We observe that the trial court issued a thoughtful, comprehensive decision that consisted of approximately eighteen pages of detailed findings of fact, accompanied by citations to the record supporting each of its findings. ( See Trial Ct. Op., 5/03/17, at 1-18). The court explained which testimony it found credible and why. ( See id.). In particular, it noted the lack of any problems with the Bencze Property prior to Superstorm Sandy. ( See id. at 9). The trial court credited the testimony of the Benczes' expert, Edward Pridgen, that there were no problems with either the Benczes' roof or their downspout. ( See id. at 17).
With respect to Mellon's claims that the trial court did not properly credit the testimony of its witness, our review of the record confirms that Mark Childs did not personally view the Bencze Property until August 2015, nearly three years after the first damage to the Property. ( See id. at 13-15). The trial court noted that, during that first inspection on August 20, 2015, while the Benczes' expert, Mr. Voories, inspected the Bencze roof, Mr. Childs did not. ( See id. at 14). The trial court particularly pointed out the discrepancies between Mr. Childs' contemporaneous notes and reports regarding his three visits to the two properties and his testimony at trial. ( See id. at 14, 16-17). Thus, the trial court properly explained its reasoning for the weight it gave to Mr. Childs' testimony.
The trial court also explained that Mr. Voories did not create his report in anticipation of litigation and did not write it as a legal document. ( See id. at 15). It stated, however, that Mr. Voories did testify at trial "based upon a reasonable degree of certainty as a result of his experience, knowledge, and expertise in construction." ( Id.) (record citation omitted). Because he did not create his report in anticipation of litigation, the trial court "[did] not find the report to be inconsistent" with his trial testimony. ( Id.). We have reviewed the record and find no basis to disturb this determination. ( See N.T. Trial, 9/28/16, at 175, 181-86).
Thus, our review shows that the trial court made thorough and well-supported findings of fact that demonstrated that the Benczes presented competent evidence that Mellon caused the damage to their property by its failure to repair the 2713 Property. ( See Trial Ct. Op., at 5/03/17, at 1-18). Moreover, the trial court discussed why it credited the testimony of the Benczes and their expert witnesses and explained its reservations regarding the testimony of Mr. Childs. ( See id.). We have no basis to disturb these credibility findings. See Ruthrauff , supra at 888. Mellon's second and third issues are without merit.
In its fourth issue, Mellon complains that the trial court erred and abused its discretion when it refused to qualify Mark Childs as an expert witness. ( See Mellon's Brief, at 42-46). We disagree.
The trial court did permit Mr. Childs to testify as a fact witness. ( See N.T. Trial, 11/15/16, at 9-10).
Pennsylvania Rule of Evidence 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
Pa.R.E. 702. Further,(a) the expert's scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson;
(b) the expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and
(c) the expert's methodology is generally accepted in the relevant field.
[d]etermining whether a witness may testify as an expert is a matter within the sound discretion of the trial court, whose decision will only be reversed for a clear abuse of discretion. In order to qualify as an expert in a given field, a witness must possess more expertise than is within the ordinary range of training, knowledge, intelligence, or experience. The test to be applied when qualifying a witness to testify as an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If a witness possesses neither experience nor education in the subject matter under investigation, the witness should be found not to qualify as an expert.Yacoub v. Lehigh Valley Med. Assoc., P.C., 805 A.2d 579, 591 (Pa. Super. 2002) (en banc), appeal denied, 825 A.2d 639 (Pa. 2003) (citations and quotation marks omitted; emphasis in original).
Here, Mellon attempted to offer Mr. Childs as an expert witness in property preservation. ( See N.T. Trial, 11/15/16, at 5-10). Mr. Childs testified that he worked as a regional field services manager for Altisource Solutions, the company that Mellon hired to provide property preservation for mortgage servicing companies. ( See id. at 5).
However, our review of the record demonstrates that Mellon failed to establish that Mr. Childs, as a field service manager, had any specialized knowledge, experience, skills, training or education about the mold, construction, and water damage problems at issue. Mr. Child's curriculum vitae is not included in the certified record and he did not testify that he had any licensing, training, or education in the fields of mold, water damage, or construction. ( See id. at 5-8).
Moreover, his work experience was supervisory and concerned with workflow rather than hands-on work in construction or preservation; he testified that his job was to "oversee the vendors that are contracted by Altisource to do the property preservation work and to make sure that work gets done." ( Id. at 5). He further testified that his work for his previous employer was identical. ( See id. at 6). He did not testify that he had any specialized knowledge, skill, or expertise with respect to actually remediating mold or repairing damaged properties only that he had inspected them as part of his job. ( See id. at 7-10). Moreover, he admitted to having minimal experiences overseeing properties with water damage. ( See id. at 7).
Further, to the extent that Mellon contends that the trial court disqualified Mr. Childs "because [it] believed he was employed by a party and that was disqualifying[,]" (Mellon's Brief, at 42), this claim is not properly before us. Mellon fails to point to anything in the record that supports this assertion, and candidly concedes that any conversation about this occurred during "off-the-record discussions[.]" ( Id. at 44). "This Court does not rely on facts dehors the certified record." In Re Estate of Tigue , 926 A.2d 453, 459 (Pa. Super. 2007) (citation omitted). Accordingly, we will not address this claim.
In addition, our review of the record confirms the trial court's conclusion that Mellon attempted to qualify Mr. Childs as an expert to provide opinion testimony on an unauthenticated mold report prepared by Amato Field Services, an entirely separate entity. ( See Trial Ct. Op., 8/11/17, at unnumbered page 8; see also Mellon's Brief, at 45; N.T. Trial, 11/15/16, at 58-59). Amato Field Services based its conclusions on laboratory tests and results by an independent laboratory, EMLab P&K. ( See Trial Ct. Op., 8/11/17, at unnumbered page 8). Leaving aside the hearsay issues raised, we see nothing in the evidence discussed above which demonstrated that Mr. Childs had the necessary expertise, given his own experience was purely supervisory, to offer his opinion regarding laboratory results or someone else's conclusions on mold remediation. Further, his supervisory experience in overseeing contractors to make sure projects be completed was insufficient to demonstrate any specialized knowledge with respect to the issues in the instant matter. Therefore, we find that the trial court did not abuse its discretion in failing to qualify Mr. Childs as an expert. See Seels v. Tenet Health Sys., Hahnemann , LLC , 167 A.3d 190, 204-05 (Pa. Super. 2017) (holding that trial court did not abuse its discretion in refusing to qualify doctor who had general expertise in hospital administrative programs as expert in bloodless medicine where doctor had no specific experience in creating, operating, or supervising bloodless medicine program, no direct knowledge about using or operating relevant equipment, and no training in correct standard of care). Mellon's fourth claim does not merit relief.
The report is not included in the certified record and we are unable to ascertain its contents.
The trial court offered Mellon the opportunity to bring in someone from either Amato Field Services or the laboratory to testify about the report, so that Mellon could offer it into evidence, but Mellon declined. ( See N.T. Trial, 11/15/16, at 59).
Again, in the absence of the actual Amato Field Services report, it is not entirely clear on what topics Mellon wanted Mr. Childs to opine.
In its final claim, Mellon contends that the trial court erred in granting judgment in favor of the Butterlines on its claims for trespass and contribution. ( See Mellon's Brief, at 46-49). We disagree.
Again, we briefly note that our standard of review "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." Allegheny Energy Supply Co., supra at 60. Under Pennsylvania law, trespass is an unprivileged, intentional intrusion on land in possession of another. See Kopka v. Bell Telephone Co., 91 A.2d 232, 235 (Pa. 1952). The possessor can sue for damages in the form of both equitable relief and/or monetary damages. See Jones v. Wagner , 624 A.2d 166, 171 (Pa. Super. 1993), appeal denied, 637 A.2d 286 (Pa. 1993). Finally, "[a] trespasser on land is subject to liability for bodily harm caused to the possessor . . . by any . . . condition created by the trespasser while upon the land[.]" Kopka , supra at 236 (emphasis added).
Here, Mellon admits that the trial court did find that the Butterlines trespassed. ( See Mellon's Brief, at 46; Trial Ct. Op., 5/03/17, at 25). However, it avers that the trial court erred in not awarding damages on this claim. ( See Mellon's Brief, at 46). In its brief argument on this issue, Mellon fails to cite to any portion of the record that supports a contention that the Butterlines damaged the 2713 Property. ( See id. at 46-49). We have thoroughly reviewed the record and find no instance where any party ascribed any particular damages to the Butterlines.
Moreover, it is not this Court's role to scour the record to find support for Mellon's claims. See Commonwealth v. Mulholland , 702 A.2d 1027, 1034 n.5 (Pa. Super. 1997) ("In a record containing thousands of pages, this [C]ourt will not search every page to substantiate a party's incomplete argument.") (citation omitted).
Perhaps because of this lack of record support, Mellon now claims that the Butterlines' illegal occupancy of the 2713 Property itself resulted in damages to Mellon because it prevented access to the property for maintenance and repair. ( See Mellon's Brief, at 47).
However, Mellon, in a failure to comply with Pennsylvania Rule of Appellate Procedure 2117(c), does not document where it raised this claim with the trial court. On independent review, we have not been able to ascertain where Mellon raised this claim. The trial court does not address it in either its May 3, 2017 opinion or in its decision denying Mellon's post-trial motions. ( See Trial Ct. Op., 5/03/17, at 25; Trial Ct. Op., 8/11/17, at 39-40). An appellant cannot raise a new theory on appeal; accordingly, we find Mellon waived this claim. See Andrews v. Cross Atlantic Capital Partners , Inc., 158 A.3d 123, 129 n.10 (Pa. Super. 2017) (en banc), appeal denied, 172 A.3d 584 (Pa. 2017) ("Because one cannot raise a new legal theory on appeal, this claim is waived."); see also Pa.R.A.P. 302(a); Pa.R.A.P. 2117(c); Pa.R.A.P. 2119(e); Pa.R.A.P. 2101.
In any event, Mellon does not cite to anything in the record that supports a contention that the Butterlines prevented them from accessing the 2713 Property in order to maintain it and make repairs. Rather, the record reflects that the property maintenance company, Altisource, had an internal policy of not performing "property preservation work" if people were living in the property. (N.T. Trial, 11/15/16, at 15). Further, Mellon does not cite to the record to support a contention that it made any efforts to contact the Butterlines to gain access to the property to make repairs. Moreover, the record reflects the Butterlines were removed from the 2713 Property for the first time in January 2014, and did not reenter the property until September 2014, but Mellon made no effort to undertake repairs to the 2713 Property during that period. ( See id. at 68). The fact that Mellon failed to maintain the 2713 Property during that approximately ninth-month period is underscored by the fact that the Butterlines were able to retake possession of the 2713 Property in September 2014, because it was unsecured, had been occupied by squatters, and the door was wide open. ( See id. at 90-92; see also N.T. Trial, 9/28/16, at 62, 140; N.T. Trial 11/08/16, at 37, 75). Thus, even if Mellon had not waived the claim, it failed to prove that the Butterlines' occupancy prevented it from maintaining and repairing the 2713 Property.
Mellon also complains that the trial court erred in finding that the Butterlines did not owe contribution as joint tortfeasors. ( See Mellon's Brief, at 47-48). We disagree.
This Court has defined joint tortfeasors as "two or more persons jointly or severally liable in tort for the same injury to persons or property[.]" Mamalis v. Atlas Van Lines , Inc., 528 A.2d 198, 199 (Pa. Super. 1987), affirmed, 560 A.2d 1380 (Pa. 1989) (citation omitted).
Here, the trial court found that Mellon was not entitled to contribution because the Benczes did not name the Butterlines as joint tortfeasors and Pennsylvania law only authorizes contribution claims among joint tortfeasors. ( See Trial Ct. Op., 5/03/17, at 25). Mellon tacitly acknowledges this, but argues that it is irrelevant whether the Benczes sued the Butterlines as joint tortfeasors so long as they are joint tortfeasors. ( See Mellon's Brief, at 47-48). However, Mellon provides no caselaw in support of this contention, and merely mis-cites to a statutory definitional section. It fails to develop a supporting argument. It is well settled that failure to argue and to cite any authority supporting the argument constitutes a waiver of the issue on appeal. See Jones v. Jones , 878 A.2d 86, 90 (Pa. Super. 2005). This Court will not act as counsel and will not develop arguments on behalf of an appellant. See Bombar v. West Am. Ins. Co., 932 A.2d 78, 94 (Pa. Super. 2007). When deficiencies in a brief hinder our ability to conduct meaningful appellate review, we can dismiss the appeal entirely or find certain issues to be waived. See Pa.R.A.P. 2101. Because Mellon has failed to develop an argument with pertinent support for its claim that it is entitled to contribution from a party not named as a joint tortfeasor, it has waived the claim. See id.; Bombar , supra at 94; Jones , supra at 90. Accordingly, we affirm.
Orders affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/29/18
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