J.A30037/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

REZRO, INC., D/B/A AMERICAN ATM, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

MAXIMO LANFRANCO D/B/A MAXI :

GROCERY AND BANK EXPRESS :

INTERNATIONAL, INC. :

:

APPEAL OF: MAXIMO LANFRANCO :

D/B/A MAXI GROCERY : No. 107 EDA 2015

Appeal from the Judgment Entered February 9, 2015

In the Court of Common Pleas of Philadelphia County 

Civil Division No(s): October Term, 2013, No. 00297

BEFORE: MUNDY, JENKINS, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED FEBRUARY 12, 2016

Appellant, Maximo Lanfranco, d/b/a/ Maxi Grocery, appeals from the 

order entered in the Philadelphia County Court of Common Pleas finding in 

favor of Appellee, Rezro, Inc., d/b/a American ATM, and against Appellant, 

for breach of contract.1 The court entered a verdict in favor of Appellee in 

 

*

Former Justice specially assigned to the Superior Court.

1 Appellant purported to appeal from the December 4, 2014, order denying 

its post trial motion. On January 26, 2015, this Court directed Appellant to 

praecipe the trial court Prothonotary to enter judgment on the decision of 

the trial court. See Brown v. Phila. Coll. of Osteopathic Medicine, 760 

A.2d 863, 865 n.1 (Pa. Super. 2000) (appeal does not properly lie from 

order denying post-trial motions, but rather upon judgment entered 

following disposition of post-trial motions). “Since judgment has now been 

entered, we will address the merits of [Appellant’s] appeal.” Johnston the 

Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 515 (Pa. Super. 1995) 

(en banc). We have amended the caption accordingly.
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the amount of $50,148.50. Order, 11/20/14. Appellant contends that he 

only agreed to be bound by a four year contract. We vacate the judgment 

and remand.

The trial court2summarized the facts of this case as follows:

[Appellee] filed a Complaint against [Appellant] alleging 

breach of contract with regards to an agreement titled 

“ATM Floor Space Lease” (“Agreement”) to place 

[Appellee’s] ATM machine in [Appellant’s] grocery store . . 

. . The Agreement was signed by both parties and 

commenced on January 2, 2009 with an initial term of 48 

months. Under Paragraph IV(A) and (B),[3]a new lease 

 

2

Judge Di Vito has retired from the bench and the case was assigned to 

Judge Idee C. Fox to write the Pa.R.A.P. 1925(a) opinion.

3

Paragraph IV of the lease provides, in pertinent part, as follows:

IV. LENGTH OF AGREEMENT

(A) The ATM must stay on the installed position for the 

entire term unless removed or moved in compliance with 

this or other sections of this agreement. The length of this 

agreement shall be for forty-eight (48) months from 

commencement date. Unless cancelled in accordance with 

section IV(B), a new lease term will commence at the end 

of the previous term.

(B) Proper notice shall be deemed given if either 

[Appellant] or [Appellee] gives written notice to the other 

party, at least one hundred twenty (120) days before the 

end of the current ATM Placement Agreement, indicating 

that no further agreement will be entered into.

R.R. at 70a. For convenience we refer to the reproduced record where 

applicable. See generally Pa.R.A.P. 2156.
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term of 48 months would commence if no written notice or 

termination was provided 120 days prior to the termination 

of the initial term (“Renewal Provision”). . . .

[Appellee] did not receive written notice of termination 

during the initial term. The Agreement therefore 

automatically renewed for another 48 month period 

starting January 2, 2013. However, in July 2013, 

[Appellant] unplugged [Appellee’s] ATM and placed 

another company’s ATM in the store.

The matter proceeded to a Non-Jury trial before Judge 

[Gary F.] Di Vito on November 17, 2014. . . . Following 

trial, Judge Di Vito entered Findings and Conclusions, 

explaining his reasons for finding in favor of [Appellee] and 

against [Appellant] and assessing damages of $50,148.50. 

. . . Judge Di Vito’s Findings and Conclusions are attached 

hereto and incorporated herein. 

R.R. at 8a-9a (footnote omitted).

Judge Di Vito made the following, inter alia, findings of fact:

3. Christopher Mirzai (“Mirzai”) is an authorized 

representative of [Appellee].

 * * *

9. [Appellee] provided the ATM machine which was placed 

in [Appellant’s grocery] and maintained the machine and 

during the relevant period, [Appellee] monitored the 

functioning of the machine and continually ensured it was 

properly operating and stocked with cash.

10. [Appellee] collected a surcharge on transactions 

conducted at the machine. In addition to this surcharge, 

[Appellee] received an interchange payment[4]on the 

transactions processed by the machine.

 

4

In ATM transactions, interchange is the fee that financial institutions that 

issue debit cards pay the ATM owner in exchange for the convenient access 

to customers’ bank accounts.
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12. At no time during the initial term of the lease 

agreement did [Appellee] receive any written notice of 

cancellation or termination of the Lease Agreement from 

[Appellant] in accordance with [sic] as required under 

paragraph IV of the lease.

13. Under Paragraph IV(A) of the Lease Agreement, the 

contract was automatically renewed on January 2, 2013 for 

another term of forty eight (48) months.

14. The Lease Agreement contains a “Non-Competition” 

provision which states that [Appellant “]agrees not to 

possess, cause to be placed or operate any other ATM or 

cash back device on the premises throughout the term of 

the agreement.[”]

15. In or about July 2013, [Appellant] permitted another 

company’s ATM to be placed in the store and unplugged 

[Appellee’s] ATM.[5]

 

 * * *

19. [Appellee] incurred a loss of future income in the 

amount of $50,148.50. 

R.R. at 2a-4a. The trial court’s conclusions of law were as follows:

1. The lease between the parties is a valid contract.

2. The lease renewed at the end of the initial forty eight 

(48) month term pursuant to section IV(a) [sic] thereof.

3. [Appellant] is in breach of the terms and conditions of 

the lease.

4. The [c]ourt found Christopher Mirzai credible.

 

5

It is undisputed that on July 24, 2013, Appellant disconnected Appellee’s 

machine. Appellant’s Brief at 10. Appellant “placed another ATM in the 

store . . . .” Id. 
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5. The [c]ourt found [Appellant] not credible.

6. [Appellee] is entitled to recovery of its losses.

R.R. at 4a-5a. The court entered a verdict in favor of Appellee in the 

amount of $50,148.50. Id. at 5a.

Appellant filed post trial motions, which were denied. This timely 

appeal followed. Appellant filed a Pa.R.A.P. 1925(b) statement of errors 

complained of on appeal

6

and the court filed a responsive opinion. 

Appellant raises the following issues for our review:

1. Whether there was a meeting of the minds on the 

renewal provisions of the Contract?

2. Whether there was a failure of consideration for the 

renewal provisions in the Contract?

3. Whether the Contract created a license that was 

revocable at will rather than a lease that was binding for 

an additional four year term?

4. Whether [Appellee] suffered damages that are 

cognizable under Pennsylvania Law as a result of the 

alleged breach of contract?

5. Whether the renewal provisions of the Contract should 

have been voided due to unconscionability?

Appellant’s Brief at 4-5.

 

6 We note that Appellant’s Rule 1925(b) statement contained eleven issues.

We will not consider any issue if it has not been set forth in the statement of 

questions involved. These claims are abandoned on appeal. See City of 

Phila. v. Schweiker, 858 A.2d 75, 90 (Pa. 2004). 
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At the outset, we address issue number four because it is dispositive. 

Appellant contends that Appellee did not suffer damages that are cognizable 

as a result of the alleged breach of the renewal provisions of the contract.7

Appellant’s Brief at 20. Appellant avers “the trial court erred by creating a 

liquidated damage award of gross profits” projected over three and a half 

years. Id. at 25. Appellant argues the trial court erred in finding that the 

“loss of future income in the amount of $50,148.50” was a “credibility 

determination.”8 Id. at 26.

In Newman Dev. Grp. of Pottstown, LLC v. Genuardi's Family 

Mkt., Inc., 98 A.3d 645 (Pa. Super. 2014), appeal denied, 117 A.3d 1281 

(Pa. 2015), this Court stated that the question of how to calculate damages 

is a question of law, citing Helpin v. Trustees of Univ. of Pa., 10 A.3d 

267, 270 (Pa. 2010). Newman, 98 A.3d at 656 (emphasis added). The 

“standard of review is de novo and [the] scope is plenary.” Helpin, 10 A.3d 

at 270.

In Northeastern Vending Co. v. P.D.O., Inc., 606 A.2d 936 (Pa. 

Super. 1992), this Court opined:

Specifically, appellant recognizes that there is a general 

duty to mitigate in cases involving commercial 

transactions, but contends that such a duty is inapplicable 

where the non-breaching party is a “lost volume seller.” 

 

7 Appellant avers that he entered into a four-year contract with Appellee. 

Appellant’s Brief at 13.

8 R.R. at 17a.
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However, this Commonwealth does not recognize the 

theory of “lost volume seller.” Accordingly, 

appellant was under a duty to mitigate its damages.

The theory of “lost volume seller” is addressed in the 

Restatement of Contracts, Second, which provides that:

The mere fact that an injured party can make 

arrangements for the disposition of the good or 

services that he was to supply under the contract 

does not necessarily mean that by doing so he will 

avoid loss. If he would have entered into both 

transactions but for the breach, he has “lost volume” 

as a result of the breach. See Comment f to Section 

347.

Restatement of Contracts, Second, Section 350, Comment 

d. Comment f of Section 347 states that:

If the injured party could and would have entered 

into the subsequent contract, even if the [first] 

contract had not been broken, and could have had 

the benefit of both, he can be said to have “lost 

volume” and the subsequent transaction is not a 

substitute for the broken contract. The injured 

party’s damages are then based on the net profit 

that he has lost as a result of the broken contract.

Restatement of Contracts, Second, Section 347, Comment 

f.

This court has never accepted the theory of “lost 

volume.” In fact, this concept was summarily rejected by 

our court in Unit Vending Corp[.] v. Dobbin Enter[.], [ 

] 168 A.2d 750 ([Pa. Super.] 1961). In that case, this 

court held that a vending machine operator had a duty to 

minimize damages resulting from its customer’s breach of 

an exclusive vending machine placement contract, and was 

not entitled to be compensated for any profits it might 

have obtained by placing the machine in another location. 

This court stated that:

[the plaintiff] should not be compensated for any 

profits that it might have been able to obtain by 
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placing the machine in another location. It had the 

duty to minimize its damages by doing so if this were 

possible.

Id., [ ] at 754.

Furthermore, we decline appellant’s invitation to now 

adopt this theory. The theory of “lost volume” erodes the 

duty to mitigate. Application of the doctrine would 

encourage the non-breaching party to do nothing to 

minimize its damages. Moreover, if compensation for “lost 

volume” was permitted, the non-breaching party would 

recover lost profits from the breached contract and the 

profits it would have made had it contracted with someone 

else. This directly conflicts with the purpose behind 

awarding contract damages.

When there has been a breach of contract, damages 

are awarded in order to place the aggrieved party in 

the same position he would have been in had the 

contract been performed. The theory behind this 

philosophy is based on an attempt to make the nonbreaching party whole again, not to provide him with 

a windfall.

Bellefonte Area School District v. Lipner, [ ] 473 A.2d 

741, 744 ([Pa. Cmwlth.] 1984).[9] Consequently, we reject 

appellant’s request to adopt the theory of “lost volume.” 

Moreover, we find that appellant did not fulfill its 

duty to mitigate damages. [The a]ppellant did not 

 

9 We note that

[t]his Court is not bound by decisions of the 

Commonwealth Court. Citizens’ Ambulance Service 

Inc. v. Gateway Health Plan, 806 A.2d 443, 446 n. 3 

(Pa. Super. 2002)[.] However, such decisions provide 

persuasive authority, and we may turn to our colleagues 

on the Commonwealth Court for guidance when 

appropriate. Id.

Maryland Cas. Co. v. Odyssey Contracting Corp., 894 A.2d 750, 756 n.2 

(Pa. Super. 2006).
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remove its machines from Flood's until September of 

1984, almost seven months after P.D.O. stopped 

using them. Once removed, they were placed in a 

warehouse. Accordingly, the trial court did not err when 

it found that Northeastern had a duty to mitigate its 

damages which it did not fulfill.

Northeastern Vending Corp., 606 A.2d at 938-39 (emphases added). 

Although a party cannot recover lost volume, it could recover lost 

profits. Id. at 939. 

To recover for lost profits there must be affirmative 

evidence that the loss resulted from the breach of 

contract. It is not necessary that the amount be shown 

with absolute or mathematical certainty, but only that it be 

approximated by competent proof. 

Id. at 939 (citations omitted and emphasis added).

 

Instantly, the trial court opined: 

[Appellant] contends [Appellee] did not suffer any losses 

and therefore Judge Di Vito erred by ruling [Appellee] was 

entitled to recover losses. However, Judge Di Vito made 

a credibility determination and found that [Appellee] 

suffered a loss of future income in the amount of 

$50,148.50. Without offering an opinion on Judge Di 

Vito’s findings, this court will not disturb them.

R.R. at 17a (emphases added). We find the trial court erred.

On March 21, 2014, Appellant served interrogatories and requests for 

production of documents on Appellee. Interrogatory number four stated:

Describe the basis for your damages claims. State the 

total dollar amount you claim to have lost as a result of 

[Appellant’s] alleged breach of agreement with [Appellee]. 

Provide subtotals for all categories of alleged losses. For 

the total and for each category, describe with particularity 

all facts that substantiate your claim of damages. Identify 
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all documents that support each and every aspect of your 

damages claims.

[Appellant’s] Interrog. and Req. for Produc. of Doc. Addressed to [Appellee], 

3/21/14, at 3 ¶4.

In response to interrogatory four, Appellee stated:

See damages sheet. Loss is projected based on 

expected receipt of two revenue sources. First is direct 

surcharging to customers and second is interchange 

revenue derived from the debit networks paid directly to 

[Appellee]. All losses are projected forward based on 

historical averages and the reasonable expectation of 

similar future conditions. Documents include interchange 

and transaction summary for the 12 months previous to 

disconnect.

Answers and Objections to [Appellant’s] Interrog. Addressed to [Appellee] 

(First Set), 5/1/14, at 5 ¶4.

Interrogatory number five stated:

Provide the date that the ATM was removed from 

[Appellant’s] premises; and the whereabouts of the 

machine at all times since it was removed from 

[Appellant’s] premises. Identify all locations where that 

machine was installed. State the amount of income that 

machine has garnered for [Appellee] since it left 

[Appellant’s] premises. Identify all documents relevant to 

your response.

[Appellant’s] Interrog. and Req. for Produc. of Doc. Addressed to [Appellee] 

at 3 ¶5. 

In response to interrogatory five, Appellee stated: 

Machine removed in January 2014. Machine is 

currently in storage and is slated to be used for 

parts. The ATM has generated no revenue because 
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placing older machines in new locations is nearly always 

rejected by a new location. 

Answers and Objections to [Appellant’s] Interrog. Addressed to [Appellee] 

(First Set) at 5 ¶5 (emphasis added).

Interrogatory number 6 stated as follows:

Describe in detail all efforts you took to mitigate 

your alleged damages claims, if any. State whether or 

not such efforts were successful. Identify all witnesses 

with knowledge of your attempt(s) to mitigate. Identify 

all documents relating to your attempts to mitigate. 

[Appellant’s] Interrog. and Req. for Produc. of Doc. Addressed to [Appellee] 

at 4 ¶6 (emphases added). In response, Appellee averred as follows: 

New locations want new machines. This machine, because 

of its years in tough neighborhoods, shows wear that new 

locations do not want. We have had other machines from 

locations we have lost prior to [Appellant] that have gone 

into locations that on rare occasion, did accept an older 

machine. 

Answers and Objections to [Appellant’s] Interrog. Addressed to [Appellee] 

(First Set) at 6 ¶6.

Christopher Mirzai was deposed on July 25, 2014. He was asked about 

interrogatories five and six. He testified, inter alia, as follows:

Q: . . .Paragraph 5 there, the question is, when was it 

removed and where is it now, essentially. Your answer 

was January ’14, and it’s in storage and being used for 

parts.

A: Nothing new.

Q:Well, if you go to paragraph 6 on the next page, it looks 

like you’re saying that you couldn’t place that machine 

anywhere because it was beat up?
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A: Correct. Cosmetically.

Q: It had many years in a tough neighborhood and showed 

wear?

A: Right. People Graffiti it. They write on the machine. 

They’ll scratch it and do many things to make it 

cosmetically unappealing.

Q: Was there graffiti on this machine?

A: Yes, probably.

N.T. Dep., 7/25/14, at 34.10

At trial, Christopher Mirzai, director of operations for Appellee, 

testified regarding the damages as a result of the alleged breach of the 

agreement. R.R. at 20a, 24a. The court was shown a chart which Mirzai 

described as 

attempting to show the [c]ourt our anticipated─well our 

damages as a result of the breach of agreement.

If I go by column, again, the terminal number relates to 

the unique terminal identifier for [Appellant’s] grocery, 

Maxi Grocery.

Location is the name of the grocery.

Settlement date, we see here each row under 

settlement date relates to month and year. So June ’12, 

July ’12, August ’12, all the way to June 2013, which is the 

last full month the machine was in operation since it was 

disconnected. I believe. July 24th of 2013. So we didn’t 

include that. 

 

10 We note that the deposition was not included in the reproduced record.
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But it essentially, shows about a year’s worth of 

historical data for that machine from the last full month of 

operation for approximately 13 months.

[Appellee’s Counsel]: . . . Then, explain to the Court the 

surcharge withdraws, the total surcharge column, and the 

interchange column.

A: . . . The surcharge withdraws . . . were the number of 

times people took money and were imposed the surcharge, 

which was a $1.75, at that location.

So if you multiply $1.75 times the surcharge withdraws, 

you should reach the total surcharge number.

Interchange are funds that are paid directly to us by the 

networks that’s not shared to the location, but is additional 

revenue that all ATM companies receive.

Q: So then, for the prior 12 months before the contract 

was terminated, there was an average of 759─or a little 

more time─withdrawals─for the

A: Thirteen months. Approximately, 759. So round up or 

down.

Q: ─right. . . . 

A: Those were the approximate number of withdrawals in a 

given month as an average for the previous year.

Q: And the average of the interchange [Appellee] received 

per month was $267.58?

A: That’s correct.

Q: Now, move down to the second box and explain the 

split and how you calculated or took out of the interchange 

fees, what would have been paid to [Appellant].

A: Well, not the interchange. It would be the surcharge.

Q: . . . The surcharge, yes.
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A: Again, the total surcharge is 1.75, the location─or the 

agreement was to receive 50 cents of that.

So if you take 50 cents, multiply that by the 759.69 

average number of surcharge withdrawals, you would get 

an average monthly payment to the location of $379.85. 

Using that same formula, on an average month, the ATM 

Company, [Appellee] would receive 949.62. 

And again, the interchange is not shared, so that 

average of $267.58 would be received by [Appellee]. So 

the totals indicate for, at least [Appellee], the sum of those 

two revenue sources and for the location, the amount of 

their checked [sic] based on the average that was 

calculated.

Q: . . . So the, if you found out these numbers, [Appellee] 

would have received, approximately, 1,217.20 per 

month for the proceeding 13 months.

A: Correct. On average. That’s how much we did receive.

Q: On average. Okay. And how do you get to the total 

amount of damages there? Can you explain the next line, 

please?

A: . . . The total amount of damages were, 

essentially, the number of months remaining on the 

agreement multiplied by the number of the average 

loss revenue per month, which came out to 

$50,148.51.

 * * *

Q: Now, this particular machine that was in the store that 

had been in the store─the same physical piece of 

equipment─from before [Appellant] took over the store in 

2008, 2009, is that correct?

A: Yes.

Q: . . . And you didn’t do anything out of the ordinary to 

the machine more than 120 days before the four years had 

run, isn’t that correct?
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A: I’m not sure─can you repeat the question?

Q: . . . Did you have in your calendar the 120th day 

before the contract expired? Did you keep track of that?

A: I don’t have─we don’t have reminders for that.

Q: And you don’t have anything special in mind to do with 

the machine when that time comes?

A: Special─I’m not sure─if the machine needs replacing or 

if the machine needs services done when it’s needed, it’s 

not─we don’t wait for 120 days prior to the expiration term 

to do it if it’s six months before it needs it.

Q: So it makes no difference to you about when this 

120─day period had come and gone. You were doing 

exactly what you would have done no matter what 

[Appellant] would have told you?

A: Well, we needed to─first of all, we needed to know our 

cash needs; if we have this location or not; if we needed to 

go find another location to replace this one; if we have to 

adjust our crew.

These are all things that when we have advanced 

notice, we are able to anticipate the staffing levels, the 

inventory levels, cash of machines, of parts. This is not in 

and of itself─all of these, in aggregate, matter to us.

So in terms of exactly this machine─120 days before, 

did we do anything special? I do not recall doing anything 

specific prior to the renewal.

 * * *

Q: And this particular machine had a lot of graffiti on it?

A: It does have graffiti on it. It gets cleaned periodically. 

But sure. People do vandalize, you know, these 

neighborhoods that this machine is in, it’s not─it’s prone to 

that type of activity.
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R.R. at 24a-25a, 29a-30a (emphases added).

Instantly, it is undisputed that Appellee removed the ATM machine in 

January of 2014, approximately six months after it was disconnected by 

Appellant. Appellee then placed the ATM machine in storage. Appellee had 

a duty to mitigate its damages. See Northeastern Vending Co., 606 A.2d 

at 938-39. We find the trial court erred in finding that Appellee was entitled 

to damages for a loss of future income in the amount of $50,148.50. See 

id. Accordingly, we vacate the judgment and remand to the trial court for a 

determination of whether Appellee fulfilled its duty to mitigate its damages 

and provided competent proof of lost profits. See id.

Judgment vacated. Case remanded. Jurisdiction relinquished.

Mundy, J. joins the Memorandum.

Jenkins, J. files a Concurring Memorandum in which Mundy, J. joins. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/12/2016
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