Opinion
J-A28011-17 No. 178 EDA 2017 No. 633 EDA 2017
03-13-2018
REZRO, INC., D/B/A AMERICAN ATM Appellant v. MAXIMO E. LANFRANCO, INDIVIDUALLY AND D/B/A MAXI GROCERY Appellee
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Dated November 16, 2016
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2013, NO. 000297 Appeal from the Order January 13, 2017
In the Court of Common Pleas of Philadelphia County
Civil Division at No(s): October Term, 2013 No. 000297 BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Rezro, Inc., d/b/a/ American ATM, appeals from the order entered in the Philadelphia County Court of Common Pleas, which denied Appellant's post-trial motion and entered judgment on the verdict. We affirm.
In its opinions, the trial court fully and correctly set forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them. We add that Appellant filed a second notice of appeal at docket number 633 EDA 2017 on February 10, 2017, from the entry of judgment. The trial court did not order Appellant to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b), and Appellant did not file one. On March 8, 2017, the parties filed a stipulation to consolidate the appeals.
Appellant raises the following issues for our review:
DID THE [TRIAL] COURT ERR IN PLACING THE BURDEN OF PROOF REGARDING MITIGATION OF DAMAGES UPON [APPELLANT] RATHER THAN [APPELLEE]?(Appellant's Brief at 3-4).
DID THE [TRIAL] COURT ERR IN DETERMINING THAT [APPELLEE] CARRIED ITS BURDEN OF PROOF WHERE IT DID NOT PRESENT TESTIMONY OR EVIDENCE AT THE JUNE 15, 2016 HEARING, DID NOT SHOW HOW [APPELLANT] COULD HAVE AVOIDED ITS DAMAGES, AND DID NOT SHOW THE AMOUNT BY WHICH [APPELLANT'S] DAMAGES COULD HAVE BEEN REDUCED?
DID THE [TRIAL] COURT ERR IN DISALLOWING ANY DAMAGES SUFFERED BY [APPELLANT] AFTER AUGUST 12, 2013[,] RATHER THAN REDUCING THEM BY THE AMOUNT PROPERLY SHOWED BY [APPELLEE] THAT [APPELLANT] WOULD HAVE BEEN ABLE TO MITIGATE THROUGH REASONABLE EFFORTS?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Idee C. Fox, we conclude Appellant's issues merit no relief. The trial court opinions comprehensively discuss and properly dispose of the questions presented. ( See Trial Court Opinion, filed February 28, 2017, at 1-2 unpaginated; Opinion in Support of Order, filed November 16, 2016, at 6-13 unpaginated) (finding: (1-3) Appellee unplugged Appellant's ATM on July 24, 2013, but did not request removal until August 12, 2013; Appellant did not have opportunity to mitigate damages during that timeframe and is entitled to lost profits for that time period; nevertheless, Appellant waited five months after Appellee's request to remove ATM, which was unreasonable and insufficient; Appellee's August 2013 letter demanded that Appellant remove its ATM as soon as possible; Appellant failed to remove its ATM despite testimony from Appellant's representative, Mr. Mirzai, that he would ordinarily remove ATM under those circumstances; Appellant failed to mitigate damages from August 13, 2013 to January 2014, when Appellant finally removed its ATM; regarding time period after Appellant removed ATM, Appellant did not use reasonable diligence to mitigate damages; Mr. Mirzai provided only vague testimony as to his efforts to place ATM in other locations, which lacked sufficient details such as dates, stores, or customer names; Mr. Mirzai presented no evidence to corroborate his efforts; picture of ATM shown to potential customers was of ATM in unattractive condition with graffiti and scratches; Appellant made no effort to clean machine or make it more attractive before showing it for placement; Mr. Mirzai admitted he stopped showing ATM at some point, but he failed to indicate when he started showing it or for how long he showed it; Appellant admitted in interrogatories that as of May 1, 2014, ATM was in storage and slated for parts; any efforts to show ATM to potential customers occurred for only four months, between January 2014 and May 2014, which court found unreasonable, where approximately forty-two months remained on parties' contract; court found incredible Mr. Mirzai's testimony about showing pictures of ATM to potential customers, where that testimony was inconsistent with Appellant's answers to interrogatories; Appellant also did not make reasonable efforts to sell ATM parts and presented no evidence as to efforts made to sell or rent parts, or even sell whole ATM; Mr. Mirzai admitted ATM was unattractive, marked with graffiti and scratches, and obsolete; Mr. Mirzai's testimony established ATM was at end of its useful life of five to seven years, and Appellant presented no evidence that ATM would have lasted or continued to work; ATM no longer had value and was of no use; therefore, Appellant was entitled to damages in form of lost profits only from July 24, 2013 to August 12, 2013, in amount of $796.00). Accordingly, we affirm based on the trial court opinions.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/13/18
Image materials not available for display.