J-A05024-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WATERBUCKET MEDIA, LLC, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NATIONAL HIGH SCHOOL COACHES 

ASSOCIATION, INC., (NHSCA)

Appellant No. 1673 EDA 2014

Appeal from the Order entered April 30, 2014,

in the Court of Common Pleas of Northampton County,

Civil Division, at No(s): C48-CV2011-11686

BEFORE: GANTMAN, P.J., SHOGAN, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.: FILED MARCH 09, 2015

National High School Coaches Association, Inc., (“Appellant”), appeals 

from the trial court’s denial of Appellant’s post-trial motion seeking judgment 

notwithstanding the verdict (“JNOV”), or alternatively, a new trial following 

the entry of judgment in favor of Waterbucket Media, LLC, (“WBM”), and 

against Appellant, following a jury trial verdict in favor of WBM. We affirm. 

The trial court detailed the factual procedural history of this case as 

follows:

[WBM] commenced the instant action by filing a Complaint 

on December 7, 2011. In its Complaint, [WBM] asserted a 

breach of contract claim against [Appellant] for the amount of 

$180,768.13. On January 6, 2012, [Appellant] filed an Answer 

with New Matter and Counterclaim. [Appellant’s] Counterclaim 

purportedly contained a breach of contract claim against [WBM]. 

On January 19, 2012, [WBM] filed a Reply to [Appellant’s] New 

Matter and an Answer to its Counterclaim.
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A jury trial was held from November 18, 2013, through 

November 20, 2013. On November 20, 2013, upon oral motion 

of [WBM], the Court entered a compulsory nonsuit with respect 

to [Appellant’s] breach of contract Counterclaim. (N.T., 

11/20/2013, at 51:7-64:21.) Also, on November 20, 2013, the 

jury entered a verdict in favor of [WBM] and against [Appellant] 

and awarded [WBM] damages in the amount of $77,500.00. (Id. 

at 197:6-18.)

On November 29, 2013, [Appellant] filed [a post-trial 

motion]. In its Motion, [Appellant] alleges that (1) the Court 

erred in entering the compulsory nonsuit on [Appellant’s] 

Counterclaim; (2) the jury awarded damages to [WBM] based on 

a misinterpretation of the parties contract; and (3) [WBM] 

lacked standing to bring an action against [Appellant]. 

[Appellant’s] Motion requests that the Court order a new trial, 

or, in the alternative, "rule that [WBM] ... is not entitled to 

commissions for unpaid sponsorships or that [WBM] ... is not 

entitled to post [] May 2011 payments at all." (Mot. at 5-6).

The evidence presented at trial established the following. 

[WBM] was formed in January 2009 by James Jennings 

(“Jennings"), who is the sole member of the limited liability 

company. (N.T., 11/18/2013, at 608-16, 61:22-62:8.) [WBM] 

is a sports marketing firm that provides public relations and 

sponsorships to its clients. (Id. at 61:22-62:1.) [Appellant] is a 

nonprofit association that, inter alia, runs national sporting 

events for high school athletes and provides education to high 

school sports coaches. (N.T., 11/19/2013, at 25:9-19.) 

In 2009, [WBM] and [Appellant] entered into a one-year 

agreement in which [Appellant] contracted with [WBM] to 

provide public relations and to obtain sponsorships. (N.T., 

11/18/2013, at 66:10-67:3.) When that agreement expired, 

[WBM] and [Appellant] entered into a new written agreement. 

[WBM’s] Ex. 1.) The new agreement, which was drafted by 

Robert Ferraro (“Ferraro"), [Appellant’s] executive director, and 

commenced its effective term on June 1, 2010, was titled 

"[Appellant/WBM] Media Working Agreement" ("Working 

Agreement"). (N.T., 11/18/2013, at 67:14-68:14; [WBM’s] Ex. 

1.) Ferraro signed the Working Agreement on behalf of 

[Appellant]. (N.T., 11/18/202, at 68:5-11.) While the copy of 

the Working Agreement introduced into evidence was unsigned 

by Jennings, Jennings did sign the agreement on behalf of 

[WBM]. (Id. at 69:2-21.)
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The Working Agreement was effective for two years. 

([WBM’s] Ex. 1 at 1.) Pursuant to its terms, [Appellant] was 

required to pay [WBM] a monthly fee of $2,500.00 for public 

relations work. (Id. at 4.) Further, [Appellant] was required to 

pay [WBM] twenty percent of the net value of cash sponsorships 

and ten percent of the value or any "costs savings" obtained by 

[WBM] for [Appellant]. (Id.) The pertinent language contained 

in the Working Agreement is as follows:

2. Advertising, Promotions, and Sales Commissions.

[WBM] shall be entitled to a commission in the amount of 

Twenty Percent (20%) of the net value of cash 

sponsorships (monetary sponsorship) and/or revenues 

accrued to [Appellant] regardless of timeframe from any 

advertising, sponsorship, or signage revenue and/or media 

deal for [Appellant.] 

a. Net Revenue Defined. Net revenue will be defined 

as "out of pocket" expenses to [Appellant] associated 

with servicing the sponsorship relationship to be 

taken away from the gross revenues associated with 

the sponsorship. The remaining cash sponsorship 

will be the "net revenue" that [WBM] will be 

commissioned on. These costs will not include 

'regular operating expenses' associated with putting 

on an event or any happening.

...

3. Sponshorship that provides a “cost savings” to 

[Appellant]. [WBM] shall be entitled to a commission 

in the amount of Ten Percent (10%) of the value of any 

cost savings to [Appellant]; unless otherwise agreed to 

a different percentage by both parties. Items that have 

existed as a budget “line item” for both [Appellant] 

and/or pertaining to costs to conduct [Appellant’s]

events will fall under this commission/compensation 

plan.

a. Commission payment due within 60 days of contract 

execution. 

Id. The Working Agreement contained a merger clause 

stating that "This Agreement contains the entire 

agreement of the Parties as to the subject matter hereof. 
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This Agreement may be change[d] only in writing and duly 

executed by each of the Parties.” (Id. at 2.) 

At trial, [WBM] presented evidence that [Appellant] had 

not paid all of the requisite commissions and public relations fees 

due under the Working Agreement. (N.T., 11/18/2013, at 

59:13-119:14.) In closing argument, [WBM’s] counsel 

contended that [Appellant] owed $134,850.00 to [WBM]. (N.T., 

11/20/13, at 127:2-5.) As noted above, the jury found in favor 

of [WBM] on its breach of contract claim and awarded damages 

in the amount of $77,500.00.

Trial Court Opinion, 4/30/14, at 1-5 (footnote omitted). On April 30, 2014, 

the trial court denied Appellant’s post-trial motions. Appellant filed a timely 

notice of appeal. Appellant and the trial court have complied with Pa.R.A.P. 

1925. 

Appellant poses the following queries for our review:

1. Whether the trial court incorrectly decided that the Working 

Agreement was ambiguous as to when commission payments 

were due, as both parties agree that payments were only due 

from net revenue?

2. Whether [WBM] is a proper party, as it did not sign the 

Working Agreement; received no consideration attending the 

Working Agreement; and was in violation of every critical tenet 

of law separating owners/managers of corporate structures from 

the corporate entity itself?

3. Whether the agreement underlying [Appellant’s] counterclaim 

was sufficiently definite, and subject to sufficient consideration 

to form an actionable contract?

Appellant’s Brief at 2. 

We recognize:

A JNOV can be entered upon two bases: (1) where the 

movant is entitled to judgment as a matter of law; and/or, (2) 

the evidence was such that no two reasonable minds could 
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disagree that the verdict should have been rendered for the 

movant. When reviewing a trial court’s denial of a motion for 

JNOV we must consider all of the evidence admitted to decide if 

there was sufficient competent evidence to sustain the verdict. 

In so doing, we must also view this evidence in the light most 

favorable to the verdict winner, giving the victorious party the 

benefit of every reasonable inference arising from the evidence 

and rejecting all unfavorable testimony and inference. 

Concerning any questions of law, our scope of review is plenary. 

Concerning questions of credibility and weight accorded the 

evidence at trial, we will not substitute our judgment for that of 

the finder of fact. If any basis exists upon which the jury could 

have properly made its award, then we must affirm the trial 

court’s denial of the motion for JNOV. A JNOV should be entered 

only in a clear case.

Am. Future Sys. v. Better Bus. Bureau, 872 A.2d 1202, 1215 (Pa. Super. 

2005) (citation omitted), aff’d by 923 A.2d 389 (Pa. 2007). Further, we will 

reverse a trial court’s denial of a JNOV only where the trial court abused its 

discretion or committed an error of law that controlled the outcome of the 

case. Ty-Button Tie, Inc. v. Kincel and Co., Ltd., 814 A.2d 685, 690 (Pa. 

Super. 2002). 

Likewise, we are mindful that:

The decision of whether to grant a new trial is within the 

sound discretion of the trial court. We will not disturb the trial 

court’s decision unless the court palpably abused its discretion or 

committed an error of law. [] [A] new trial is warranted where 

the jury’s verdict is so contrary to the evidence as to shock one’s 

sense of justice. However, a new trial should not be granted 

because of a mere conflict in testimony or because the trial 

judge, on the same facts, would have arrived at a different 

conclusion.

Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002) (quoting Mano

v. Madden, 738 A.2d 493, 495 (Pa. Super. 1999) (en banc)).
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Before we examine the merits of Appellant’s issues, we must first 

determine whether they have been preserved for review. Upon review of 

both record and Appellant’s brief, we find that Appellant’s first and third 

issues are waived for lack of development. 

In summarizing its first issue, Appellant contends that “[t]he trial court 

erred in its legal interpretation of the Compensation portion of the Working 

Agreement[.]” Appellant’s Brief at 8. In support of this argument, Appellant 

cites to the Working Agreement and Jennings’ trial testimony, and argues 

about how we should construe the Working Agreement. See generally

Appellant’s Brief at 11-14. However, despite recognizing that the 

construction of contractual language is a question of law, (id. at 11) 

(emphasis supplied), Appellant fails to cite a single case in support of its 

argument, analysis, and proposed interpretation of the Working Agreement. 

See id. at 11-14. Appellant’s argument fails for lack of development with 

appropriate jurisprudence. See Betz v. Erie Ins. Exchange, 957 A.2d 

1244, 1261 (Pa. Super. 2008) (internal citations omitted) (deeming an 

argument waived where appellant “cites no authority to support ... its 

argument”); see also Bombar v. West American Ins. Co., 932 A.2d 78, 

91 (Pa. Super. 2007) (determining appellant “has not developed ... argument 

for appellate review” where appellant only cited to pleadings).

We further find waiver in Appellant’s treatment of this issue during the 

trial. Instantly, Appellant argues that the trial court “determined that the 

Working Agreement was ambiguous with respect to ‘revenues accrued’ and 
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the ‘net revenue’ definition that precedes commission payment.” Appellant’s 

Brief at 6. Appellant indicates that “WBM argued that ‘accrual’ means 

booking the account upon sponsorship contract signing[.] [Appellant] 

argued that commissions were to be paid ‘only after receipt of sponsorship 

money, less the ‘out of pocket’ money referred to [in Working Agreement].” 

Id. However, Appellant’s counsel conceded to the trial court that “there 

might be an ambiguity” regarding accrual under the contract given the 

parties’ differing interpretations of the Working Agreement. N.T., 11/19/13, 

at 3. Further, Appellant did not object when the trial court specifically asked 

counsel, “[d]oes anyone have any objection” to the trial court’s instruction 

that “the term accrued and how that’s to be paid, are ambiguous and [the 

jury is] to use all of the facts, including how the parties operate under the 

agreement” to interpret those terms. Id. 169. Appellant also failed to 

object when the trial court reiterated: “Just so we’re all clear, does anybody 

have an objection to me charging [the jury] that paragraph two of the 

agreement is ambiguous and the jury has to determine how [WBM] was to 

be paid?” Id. at 171. Moreover, during a discussion of the proposed jury 

instructions, the trial court specifically read the jury instruction regarding 

ambiguity, which concluded with the statement that “because [Appellant] 

prepared the written agreement, any ambiguous language in the written 

agreement must be interpreted against [Appellant] and in favor of [WBM] if 

[WBM’s] interpretation is reasonable.” N.T., 11/20/13, at 95. When asked 

whether he had any objection to the ambiguity charge, Appellant’s counsel 
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replied that “I don’t like the last part[.]” Id. Appellant did not object to the 

portion of the jury instruction where the trial court expressed “I have 

decided that ambiguity as to this provision exists and an issue of fact that 

you must decide [is] present.” Id. at 94. Appellant’s repeated failure to 

object to the trial court’s determination concerning ambiguity effects waiver. 

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1124-1125 (Pa. 2000) 

(“It is axiomatic that, in order to preserve an issue for review, litigants must 

make timely and specific objections during trial[.]”) 

Waiver notwithstanding, Appellant’s first issue lacks merit because 

having decided the contract was ambiguous, the trial court did not err or 

abuse its discretion in having the jury interpret the contract to determine 

when revenues accrued and what defined net revenue. See N.T., 11/19/13, 

at 161-173; see also Community College of Beaver County v. 

Community College of Beaver County, Society of the Faculty 

(PSEA/NEA), 375 A.2d 1267, 1274 (Pa. 1977) (internal citations omitted) 

(“It has been long accepted in contract law that an ambiguous written 

instrument presents a question of fact for resolution by the finder-offact[.]”). 

Appellant further maintains that “[t]here is insufficient evidence to 

support the jury award of damages which derive from unpaid sponsorships.” 

Appellant’s Brief at 14. However, this challenge discounts that in awarding 

$77,500.00 to WBM, the jury may have been reaching a compromise 

verdict. See Trial Court Opinion, 4/30/14, at 5 (“In closing argument, 
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[WBM’s] counsel contended that [Appellant] owed $134,850.00 to [WBM]. 

[T]he jury found in favor of [WBM] on its breach of contract claim and 

awarded damages in the amount of $77,500.00.”); see also N.T., 11/20/13, 

at 182-183 (in responding to the jury’s request during deliberation to 

“receive the list of owed amounts indicated on the foam board as written up 

by [WBM’s counsel],” the trial court expressed “[w]hat [the jury is] trying to 

do is compare the numbers that [WBM] had with [prior defense exhibits], 

[to] come up with some kind of compromise[.]”. 

We have explained:

Compromise verdicts are verdicts where the fact-finder is in 

doubt as to the defendant’s liability vis á vis the plaintiff’s 

actions in a given suit but, nevertheless, returns a verdict for the 

plaintiff in a lesser amount than it would have if it was free from 

doubt. Compromise verdicts are favored in the law. Although 

more commonplace in negligence cases tried before juries, such 

verdicts are equally appropriate in contract cases tried before 

the bench. 

Morin v. Brassington, 871 A.2d 844, 852-853 (Pa. Super. 2005). In 

Morin, we declined to reweigh the evidence on appeal in a breach of oral 

contract action, and affirmed the trial court’s verdict in plaintiff’s favor 

despite incredible accusations made by both parties regarding the actual 

existence of the agreement. Id. The Morin court ruled it “[would] not 

invade the credibility-determining powers of the fact-finder merely because 

the evidence was conflicting and the fact-finder could have decided the case 

either way.” Id. at 852. 
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Further, we recognize that “it is within the province of the jury to 

assess the worth of the testimony, which it may then accept or reject. We 

agree that the jury is free to believe all, some or none of the testimony 

presented by a witness.” Neison v. Heimes, 653 A.2d 634, 636-37 (Pa. 

1995) (internal citations omitted). 

Instantly, the record does not reflect that the verdict defies common 

sense and logic such that a new trial is warranted, nor does the record 

viewed in the light most favorable to WBM as the prevailing party, entitle 

Appellant to JNOV. Accordingly, Appellant’s first issue is unavailing. 

We also find waiver with Appellant’s third issue. Appellant challenges 

the trial court’s grant of a compulsory nonsuit in WBM’s favor, and against 

Appellant, regarding Appellant’s counterclaim against WMB. See Appellant’s 

Brief at 24. Appellant’s entire argument consists of a single paragraph 

under the heading “[Appellant’s] Counterclaim.” Id. In this single 

paragraph, Appellant baldly asserts that “[m]uch discussion of [Appellant’s] 

counterclaim has taken place above, and will not be reiterated here.” Id. 

Appellant discounts that it is not our duty to comb Appellant’s brief to cobble 

together and infer Appellant’s position and argument, and we decline 

Appellant’s exhortation for us to do so. See Commonwealth v. Hakala, 

900 A.2d 404, 407 (Pa. Super. 2006); see also Miller v. Miller, 744 A.2d

778, 788 (Pa. Super. 1999) (internal citation omitted) (appellant bears the 

burden of establishing his entitlement to relief). Significantly, this single 

paragraph does not contain any binding and applicable jurisprudence. Id. 
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Indeed, Appellant does not even cite any legal authority for our standard 

and scope of review regarding a trial court’s order granting a compulsory 

nonsuit. Id. Appellant’s failure to develop its third issue results in waiver. 

See, e.g., Giant Food Stores, LLC v. THF Silver Spring Development, 

L.P., 959 A.2d 438, 444 (Pa. Super. 2008) (“Appellant’s issue on appeal is 

waived because [Appellant] has failed to set forth in its appellate brief any 

citation to legal authority pertaining to [Appellant’s] argument”).

Turning to Appellant’s second issue, Appellant contends that the “trial 

court erred ... in permitting WBM to be the plaintiff[.]” Appellant’s Brief at 8. 

Appellant argues that [b]eginning in September, 2010, all checks were paid 

to [Jennings], and WBM received nothing. [Jennings’] actions have two net 

results: first, there is no consideration for WBM to be considered a party to 

a contract, hence no cause of action on behalf of WBM exists; and second, 

[Jennings’] pillaging of his company so violates the laws concerning 

separation of the LLC as an entity from its owner that the LLC as an entity is 

disregarded.” Id. at 15-16. 

The trial court astutely observed:

"A real party in interest in any given contract or chose in 

action is the person who can discharge the duties created and 

control an action brought to enforce rights." Craig by Boosel v. 

Farren, 700 A.2d 543, 545 (Pa. Super. 1997); see also Pa.R.C.P. 

No. 2002(a). Pursuant to the Limited Liability Company Law of 

1994, "suit may be brought by or against a limited liability 

company in its own name." 15 Pa.C.S.A. § 8991(a). However, 

"[a] member of a company is not a proper party to an action or 

proceeding by or against the company, except where the object 

is to enforce the right of a member against or his liability to the 
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company." Id. § 8991(b). [WBM] was a party, along with 

[Appellant], to the Working Agreement. As [Appellant] itself 

notes in its Brief, no evidence was presented at trial that [WBM] 

assigned its rights pursuant to the Working Agreement to 

Jennings personally. ([Appellant’s] Br. at 5.) No evidence was 

introduced at trial that [WBM] assigned its rights under the 

Working Agreement to any individual or entity. Accordingly, as 

the only entity capable of enforcing its rights pursuant to the 

Working Agreement, [WBM] was a real party in interest to this 

action. 

[Appellant] argues that Jennings’ acceptance of [WBM’s] 

payments violated corporate formalities, such as the prohibition 

on comingling corporate and personal funds, resulting in 

[WBM’s] elimination as a real party in interest. The Court finds 

this argument perplexing and believes that its implications would 

logically lead to a conclusion that [Appellant] itself would be 

unlikely to endorse. For example, if the Court were to find that 

[WBM] had violated corporate formalities to such an extent so as 

to erase the distinction between [WBM] and Jennings 

individually, then payments to Jennings were payments to 

[WBM] because Jennings would be [WBM] and vice-versa. While 

[Appellant] claims that Jennings’ actions demolished the 

corporate wall between himself personally and [WBM], 

[Appellant’s] entire argument that [WBM] is not a real party in 

interest is implicitly premised upon that wall standing strong. 

For if [WBM] and Jennings were not distinct entities, how can the 

former relinquish rights to the latter? And, of course, 

[Appellant] acknowledges that there was no assignment from 

[WBM] to Jennings, thereby begging the question of how [WBM] 

supposedly gave up its right to payment under the Working 

Agreement to Jennings.

***

Critically, and fatal to [Appellant’s] argument, [Appellant] 

is not trying to pierce [WBM’s] corporate veil in order to assert 

liability against Jennings. Rather, [Appellant] seeks to pierce the 

corporate veil in order to eliminate [WBM’s] standing as a 

plaintiff to assert liability against [Appellant]. The Court agrees 

with the keen observation by [WBM] in its Post-Trial Brief that 

[Appellant], "in utilizing these [veil-piercing] doctrines to 

structure an argument that an entity should be prevented from 

asserting liability against another due to the acts of art 
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individual, . . . effectively turns these [pierce veiling] doctrines 

on their heads." ([WBM’s] Br. at 6.) 

[Appellant] was under no contractual obligation to make its 

payments to Jennings personally. [Appellant] agreed, with full 

knowledge and understanding, to change the payee. 

Accordingly, there was no fraudulent or deceitful conduct by 

Jennings or [WBM] such that justice would require the Court to 

pierce the corporate veil. Further, [WBM] did not seek to 

recover for itself any payments [Appellant] made to Jennings 

personally. In other words, [WBM] did not pursue any double 

recovery in this action. 

The Court notes that, in the same breath that [Appellant] 

argues that [WBM] does not have standing to enforce the 

Working Agreement, [Appellant] also claims that [WBM] did not 

assign its rights to Jennings. ([Appellant’s] Br. at 5.) The Court 

can only infer, from this argument, that [Appellant] believes that 

there exists no individual or entity capable of enforcing [WBM’s]s 

rights pursuant to the Working Agreement. The Court rejects 

this inference. For all of the above reasons, [WBM] had standing 

to maintain its cause of action against [Appellant], and, 

therefore, [Appellant’s] [standing] issue is without merit.

Trial Court Opinion, 4/30/14, at 13-17 (footnote omitted).

We agree with the trial court’s rationale, which is supported by our 

review of the record and applicable jurisprudence, such that further 

commentary would be redundant. Appellant recognizes “[t]he issue 

presented by [Appellant] here differs from better known scenarios, such as 

piercing the corporate veil. There are no case[s] directly on point for this 

issue[.]” Appellant’s Brief at 17. Discerning no trial court error of law or 

abuse of discretion, we affirm the trial court’s determination that WBM had 

standing to sue, such that Appellant is not entitled to a new trial or a JNOV.

In sum, Appellant’s three issues are without merit, such that we affirm 

the trial court. Order affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/9/2015