J-S20016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSEPH MARTINI

v.

ADAM ROCCO, ROCCO MIXED 

MARTIAL ARTS, INC., AND PHILLY'S 

NEXT CHAMP, LLC. 

Appellants

APPEAL OF: ADAM ROCCO

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2230 EDA 2019

Appeal from the Order Entered June 11, 2019

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): February Term, 2017 Case No. 170104922

BEFORE: SHOGAN, J., STABILE, J., and McLAUGHLIN, J.

DISSENTING MEMORANDUM BY McLAUGHLIN, J.:

FILED OCTOBER 23, 2020

I agree with the Majority’s disposition of the first seven issues. However, 

I respectfully disagree with the Majority’s conclusion that the trial court 

abused its discretion when it molded the verdict.

As the Majority stated, we review a trial court’s decision to mold a 

verdict for an abuse of discretion. The trial court “has the power to mold a 

jury’s verdict to conform to the clear intent of the jury.” Carlini v. Glenn O. 

Hawbaker, Inc., 219 A.3d 629, 639 (Pa.Super. 2019) (quoting Mendralla 

v. Weaver Corp., 703 A.2d 480, 485 (Pa.Super. 1997) (en banc)).
J-S20016-20

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The jury found that in paragraph 12 of the agreement of sale, Philly’s 

Next Champ, LLC (“PNC”) assumed Rocco Mixed Martial Arts, Inc.’s (“RMMA”)

obligation to pay Joseph Martini. However, the jury also found that Adam 

Rocco fraudulently induced PNC to revise paragraph 12 to provide for that 

assumption of liabilities. The trial court reconciled these findings, concluding 

that “the jury could not have intended PNC be forced to pay RMMA’s judgment 

to the Plaintiff when the source of that obligation was fraudulently-induced 

revisions to ¶ 12.” Trial Court Opinion, filed June 11, 2019, at 18. 

I would conclude that in so doing, the court did not abuse its discretion. 

The court gave effect to both jury findings, and thus reasonably effectuated 

the jury’s intent. 

Further, I would conclude that the court did not abuse its discretion in 

severing the assumption of liabilities clause from the agreement of sale. I 

agree with the trial court that the notion that PNC had to either rescind the 

contract or affirm it and sue for damages, “conflates the operation of a 

contractual severability clause with a rescission of a contract.” Id. at 19. The 

court reasoned that “[t]he severing of a contractual provision by operation of 

the severability clause does not implicate the concept of a rescission of that 

contract. The purpose of such a clause is to permit the parties to continue with 

the primary goals of the contract without having to rescind or to bring suit.” 

Id. at 20.

In Pennsylvania, “if less than an entire agreement is invalid, and the 

invalid provision is not an essential part or the primary purpose of the 
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agreement, then the remaining portions of the agreement are fully 

enforceable.” Stewart v. GGNSC-Canonsburg, L.P., 9 A.3d 215, 217 

(Pa.Super. 2010) (citation omitted); Huber v. Huber, 470 A.2d 1385, 1389 

(Pa.Super. 1984). Further, the Agreement of Sale at issue in this case included 

a severability clause:

24. In the event that for any reason one or more nonmaterial provisions of this Agreement or their application to 

any person or circumstance shall be held to be invalid, illegal 

or unenforceable in any respect or to any extent, such

provisions shall nevertheless remain valid, legal and 

enforceable in all such other respects and to such extent as 

may be permissible. In addition, any such invalidity, 

illegality or unenforceability shall not affect any other 

provisions of this Agreement, but this Agreement shall be 

construed as if such invalid, illegal or unenforceable 

provision had never been contained herein.

Agreement of Sale at ¶ 24.

“Issues of contractual interpretation are questions of law.” Wert v. 

Manorcare of Carlisle PA, LLC, 124 A.3d 1248, 1259 (Pa. 2015). 

“Accordingly, this Court’s standard of review is de novo and its scope is 

plenary.” Id. (citing McMullen v. Kutz, 985 A.2d 769, 773 (Pa. 2009)).

The trial court concluded that “[t]he assumption of liabilities provision 

of ¶ 12 was merely ancillary to the primary purpose of the contract, which 

was the sale and transfer of the business.” Tr. Ct. Op. at 20. The court 

reasoned that the parties evidently did not consider it to be a primary purpose, 

as “the agreement contained many paragraphs denying the existence of any 

liabilities, debts, or other obligations.” Id. at 21 (emphasis removed). The 
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court pointed out that “[p]aragraph 21 expressly stated that Rocco did not 

know of any ‘claim, action, suit, inquiry, proceeding or investigation of any 

kind or nature whatsoever’ within . . . the past two years or currently pending 

or threatened against the Seller.” Id. The court added that the agreement of 

sale required RMMA and Rocco to indemnify PNC and hold it harmless “from 

and against all suits, demands, actions, and/or claims of whatsoever nature 

which are brought against Buyer no matter when the action, suit, demand or 

claim is brought if the event giving rise to the claim occurred prior to Closing.” 

Id.

The court thus concluded that “[t]he agreement of sale denied the 

existence of any and all liabilities, debts, or obligations and made RMMA and 

Rocco jointly and severally liable to indemnify PNC if any arose,” and that 

“[w]ith these provisions in full force, ¶ 12’s assumption of liabilities cannot be 

considered to be the purpose of the agreement or an essential term.” Id. at 

22. The trial court therefore severed the assumption of liabilities clause from 

the agreement of sale, and molded the verdict to hold Rocco solely liable. I 

would find that, in doing so, the court did not abuse its discretion. I would 

therefore affirm the order.