Nicholas Malfitano Feb. 1, 2016, 3:41pm


HARRISBURG – The Superior Court of Pennsylvania recently voted to affirm a trial court ruling of nonsuit in a contract litigation involving the sale of a Carlisle printing business and commission payments associated with the sale.

Judges William H. Platt, Jack A. Panella and Anne E. Lazarus ruled to uphold the decision of the York County Court of Common Pleas declaring a nonsuit in the breach of contract case filed by Printed Image of York, Inc. versus Mifflin Press Ltd., Pamela A. Kerr and John Conway. Platt authored the Court’s opinion in this case.

Initially, the appellant filed a complaint against the appellees, alleging breach of the parties’ July 25, 2006 contract, where the appellant sold Mifflin Press Ltd., a printing business known as “The Printed Image of York.” By the terms of the contract, the appellees made an initial payment of $1,500.00 at closing and were required to make commission payments over the following three years.

The commissions were taken from a percentage of monthly gross sales, if they originated from the existing customer base. In the case of overlap, the appellees would pay a commission only for existing work the appellant already completed for that customer.

At the September 2014 jury trial, Conway testified the appellees made only four commission payments to appellant, in the amounts of $356.71, $776.18, $510.03, and $1,033.55, with the last payment made in January 2007.

However, the appellant declared the documentation the appellees provided during discovery regarding these commission payments “unusable to calculate damages because it was heavily redacted” and contrary to their own calculations. In response, the appellees moved for a nonsuit based on their belief that the appellant failed to prove damages and the trial court ruled in their favor, declaring a nonsuit.

Upon the case reaching the Superior Court of Pennsylvania, the appellant claimed the trial court erred in declaring nonsuit in the litigation.

“A nonsuit is proper only if the jury, viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff, could not reasonably conclude that the elements of the cause of action had been established,” Platt said.

“In reviewing the evidence presented we must keep in mind that a jury may not be permitted to reach a verdict based on mere conjecture or speculation. We will reverse only if the trial court abused its discretion or made an error of law,” Platt added.

Platt explained the Court’s perspective that the appellant did not present clear evidence of financial injury in this breach of contract case.

“Here, the trial court determined that, based on the evidence presented at trial, the jury could only speculate as to what damages, if any, should be awarded. After review of the record, we agree,” Platt said.

Platt said their decision was based on the appellant’s trial court testimony that there was no clear-cut way to determine identifiable damages or any possible overlap in the customer base.

“Upon review, we agree with the trial court, and conclude that it did not err or abuse its discretion in entering the nonsuit where appellant failed to meet its burden of presenting evidence of non-speculative, identifiable damages,” Platt said.

The appellant is represented by John Hermina of Hermina Law Group, in Laurel, Md.

The appellees are represented by Sean E. Summers of Barley Snyder, in York.

Superior Court of Pennsylvania case 693 MDA 2015

York County Court of Common Pleas case 2010-SU-2355-01

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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