J-A12011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHESTNUT RIDGE GROUP, L.P. D/B/A 

CHESTNUT RIDGE BEVERAGE CO.

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v.

PROGRESSIVE PLASTICS, INC.

Appellant No. 621 WDA 2016

Appeal from the Judgment Entered May 25, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD 09-0011570

CHESTNUT RIDGE GROUP, L.P. D/B/A 

CHESTNUT RIDGE BEVERAGE CO.

IN THE SUPERIOR COURT 

OF

PENNSYLVANIA

Appellant

v.

PROGRESSIVE PLASTICS, INC.

No. 669 WDA 2016

Appeal from the Judgment Entered May 25, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD 09-11570

BEFORE: SOLANO, J., RANSOM, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 05, 2017

Appellant Progressive Plastics, Inc. appeals from the judgment for 

$27,000 entered against Appellee Chestnut Ridge Group, L.P., doing 

business as Chestnut Ridge Beverage Co., on Progressive’s counterclaim for 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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breach of contract. Chestnut Ridge cross-appeals from the judgment entered 

against it on its claim against Progressive and on Progressive’s counterclaim 

against Chestnut Ridge. We affirm.

On February 28, 2008, Chestnut Ridge held an auction to sell industrial 

equipment located at its plastic bottle-making plant in Latrobe, 

Westmoreland County. The auctioneer was Harry Davis & Company 

(“Davis”). The terms of sale governing the auction included nineteen 

numbered paragraphs, including the following:

7. PURCHASER’S RISK - All purchases made at this sale are at 

the purchaser’s risk as soon as they are announced sold by the 

Auctioneer; the Auctioneer and principal not being responsible if 

all or any part of such purchases are lost, stolen, damaged or 

destroyed from any cause whatsoever.

. . .

9. AUCTIONEER’S LIABILITY: Auctioneer shall not, in an event, 

be liable for non-delivery or for any other matter or thing, to any 

purchaser of any lot, other than for the return to the purchaser 

of the deposit or sum paid on said lot, should the purchaser be 

entitled thereto. The auctioneer shall not be liable, in any greater 

amount than that paid by the purchaser and, in all instances, the 

highest bid shall be accepted by both the buyer and seller as the 

value against which all claims for loss or damage shall lie.

. . .

11. RISK TO PERSON AND PROPERTY – Persons’ attending 

during exhibition, sale or removal of goods assume all risks of 

damage of or loss to person and property and specifically release 

the auctioneer from liability therefore. Neither the auctioneer nor 

his principal shall be liable by reason of any defect in or 

condition of the premises on which the sale is held.
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Ex. A to Amended Compl., 11/20/09.1

Progressive, located in northeastern Ohio, placed the highest bid on 

two aluminum silos and paid Davis $15,070 for them. Progressive also 

purchased a third silo through an intermediary at the auction for $9,000, 

spending a total of $24,070 for the three silos.2 The silos were to be used to 

store resin, an ingredient in the process of making plastic bottles. 

Progressive planned to retrieve the silos by the end of May 2008, when the 

warmer weather would allow Progressive to pour the concrete pads 

necessary for installation of the silos.

In late March 2008, Davis advised Progressive that it would not be 

able to deliver the silos. Chestnut Ridge had discovered that removal of the 

silos would be unreasonably costly and would risk damage to its Latrobe 

facility. Chestnut Ridge attempted to return the payment for the silos to 

Progressive plus an additional $3,000. Progressive refused repayment. 

Progressive did not purchase or lease any replacement silos in 2008, 2009, 

or 2010.

____________________________________________

1 The auction catalogue contained an abbreviated version of the terms of 

sale, including the above Paragraph 9 (relabeled as Paragraph 3). It also 

stated: “NOTICE: All bidders and other persons attending this sale agree 

that they have read and have full knowledge of the following terms,” and 

“Other terms of sale are posted at the auction site and are available upon 

request.” Ex. B. to Amended Compl., 11/20/09.

2 Attached to the invoices for the silos was the abbreviated version of the 

Terms of Sale from the auction catalogue. See note 1, supra.
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In June 2009, Chestnut Ridge sued for a declaratory judgment that 

Progressive’s damages for non-delivery of the silos would be limited to a 

return of the purchase price.3Progressive filed a counterclaim that included 

counts for bad faith, breach of contract/repudiation, replevin, fraud, and 

conversion. Progressive asserted that having the silos would have allowed it 

to purchase resin at a cheaper price because the resin could be delivered via 

railcar rather than truck. Progressive sought consequential damages in the 

amount of $27,000 per month for thirty-one months, as well as punitive 

damages and attorneys’ fees. 

On October 19, 2010,4the trial court granted summary judgment in 

favor of Progressive on Chestnut Ridge’s declaratory judgment action, 

finding that Progressive’s damages would not be limited to return of the 

purchase price.5In late 2010, Chestnut Ridge went out of business6and 

Progressive was sold to Alpha Packaging. In January 2011, after Chestnut 

____________________________________________

3

In 2008, Progressive had attempted to sue Chestnut Ridge for non-delivery 

of the silos in Cuyahoga County, Ohio; that case was dismissed due to lack 

of personal jurisdiction over Chestnut Ridge. See Progressive Plastics, 

Inc. v. Chestnut Ridge Group, L.P., No. CV08661818 (Cuyahoga Cty, OH, 

June 1, 2009).

4 The order is dated October 18, 2010.

5 Chestnut Ridge appealed this decision, but a panel of this Court quashed 

the appeal as interlocutory on November 23, 2011. See Chestnut Ridge v. 

Progressive Plastics, Inc., 38 A.3d 931 (Pa. Super. 2011) (unpublished 

memorandum).

6 When Chestnut Ridge went out of business, it sold its remaining three silos 

(which had not previously been sold) at auction for $34,500.
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Ridge had stopped operations, it delivered the three silos to Alpha 

Packaging, which in turn sold them at auction for $37,500. 

Trial on Progressive’s counter-claims began on May 5, 2015. That day, 

Chestnut Ridge filed a motion in limine to exclude Progressive’s tort claims 

on the basis of the “gist of the action” doctrine. Chestnut Ridge stipulated 

that it breached the contract between the parties when it failed to deliver the 

silos, but argued that Progressive either suffered no damages or could have 

mitigated its damages. The court’s ruling on the motion to exclude the tort 

claims does not appear in the record; however, the trial court addressed 

only damages for breach of contract in its trial rulings, and the parties do not 

raise issues regarding the tort claims on this appeal. 

Progressive presented the video deposition of Brian Gill (Progressive’s 

former vice president of finance and materials management), and the 

testimony of Duke Busa (Progressive’s owner). Chestnut Ridge presented 

the testimony of Matthew Streett (who had worked in the accounting 

department of Chestnut Ridge), portions of the video deposition of Gerald 

Litchney (Progressive’s former plant engineer), and the testimony of 

Catherine Marchelletta (an expert in business damages). In rebuttal, 

Progressive read portions of the transcript from Litchney’s deposition.7

____________________________________________

7 After Progressive rested its case-in-chief, Chestnut Ridge moved for 

nonsuit, which was denied. Both parties moved for a directed verdict at the 

conclusion of the testimony, and both of those motions were denied.
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Initially, the eleven-person jury returned a verdict awarding 

Progressive zero damages, but two jurors disagreed with that verdict. The 

judge sent the jury back for further deliberations, and the jury then returned 

a verdict awarding $27,000 to Progressive, with only one juror in opposition. 

On May 21, 2016, Progressive filed a motion for post-trial relief seeking 

modification of the verdict to award it damages of $837,000, judgment 

notwithstanding the verdict, or a new trial.8 On April 4, 2016, Progressive’s 

post-trial motion was denied by orders of the court.9 Chestnut Ridge did not 

file a post-trial motion. Judgment was entered on a praecipe filed on May 25, 

2016.

Progressive appealed on April 26, 2016,10 and raises the following 

issues:

1. The evidence presented to a jury on damages in a breach of 

contract case for non-delivery of three (3) used plastic resin silos 

established that Appellant Progressive Plastics, Inc. (“PPI”) was 

damaged in the amount of $27,000.00 per month for each 

month it was without the silos. The only defense mounted by 

Appellee Chestnut Ridge Group, LP d/b/a Chestnut Ridge 

[B]everage (“Chestnut Ridge”) was that PPI failed to mitigate its 

____________________________________________

8 Oral argument on the motion was scheduled for March 30, 2016, by order 

dated January 22, 2016. Both parties thereafter filed briefs on the motion. 

The transcript of the argument on the motion is not included in the certified 

record. 

9 The court entered separate orders denying the motion for a new trial and

the motion for judgment notwithstanding the verdict. Both orders were 

dated March 30, 2016.

10 Although Progressive appealed prematurely, appellate jurisdiction was 

perfected on May 25, 2016, when judgment was entered. See Pa.R.A.P. 

905(a)(5); Jones v. Rivera, 866 A.2d 1148, 1149 n.1 (Pa. Super. 2005).
J-A12011-17

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damages, which it argued PPI could have done by purchasing 

comparable replacement silos. The jury awarded PPI exactly 

$27,000.00, equal to one (1) month’s damages. However, there 

was no evidence in the case that comparable replacement silos 

were available for purchase one (1) month after Chestnut 

Ridge’s breach. Did the trial court err in failing to direct a verdict 

for PPI, or order a new trial, when the jury’s verdict is not 

supported by the evidence?

2. The only evidence presented by Chestnut Ridge concerning 

the availability of replacement silos was a quote from Conair for 

three (3) silos of the same make and model purchased by PPI 

from Chestnut Ridge. However, these Conair silos were new and 

cost $192,507.00, whereas the silos purchased from Chestnut 

Ridge were used and cost only $27,000.00. However, the jury 

merely awarded PPI $27,000 in damages, failing to include the 

cost of the replacement silos in the damages. Assuming, 

arguendo, that the evidence supported a finding that PPI could 

have mitigated its damages by purchasing these substantially 

more expensive silos, did the trial court err in failing to direct a 

verdict for PPI to include the additional cost of the replacement 

silos, or otherwise order a new trial?

3. Early on in the trial, the trial court ruled that the Pennsylvania 

Uniform Commercial Code (“UCC”) was not applicable to the 

transaction at issue. Despite this, Chestnut Ridge presented 

testimony of an expert witness on damages, who testified (over 

PPI’s objection) to the UCC formula for damages. Did the trial 

court err in failing to grant PPI a new trial based on the 

irrelevant damage testimony by Chestnut Ridge’s expert?

4. As part of discovery in this case, Chestnut Ridge took a 

videotaped fact deposition of PPI’s former employee Jerry 

Litchney. At trial, Chestnut Ridge showed the jury portions, but 

not all, of Mr. Litchney’s testimony. Did the trial court err in 

failing to grant PPI a new trial based on this improper 

presentation of testimony?

5. At the conclusion of the case, the trial court submitted a 

Verdict Slip to the jury. The Verdict Slip asked the jury whether 

PPI could have mitigated its damages by the timely purchase of 

substitute silos. The Verdict Slip did not instruct the jury that 

any mitigation efforts must only be “reasonable” and improperly 

focused on one form of mitigation, i.e. purchasing replacement 

silos. The Verdict Slip also implied that it was PPI’s burden to 
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prove it could not mitigate, as opposed to forcing Chestnut Ridge 

to prove PPI failed to mitigate. Did the trial court err in failing to 

grant a new trial based on the improper verdict slip?

Progressive’s Brief at 4-7 (suggested answers omitted).

Chestnut Ridge filed a conditional cross-appeal11 on May 9, 2016, and 

raises the following:

I. Did the trial court err as a matter of law by interpreting the 

damages limitation provision in the subject auction agreement to 

apply only to Chestnut’s agent — the auctioneer?

II. Did the trial court err as a matter of law by finding that the 

subject silos were not “goods” under the UCC even though the 

evidence was undisputed that they were moveable?

III. Did the trial court abuse its discretion by refusing to admit 

any portion of the first deposition of Brian Gill who resided in 

Ohio (and later Georgia) and thus was indisputably unavailable 

for trial?

Chestnut Ridge’s Brief at 37.12

Progressive’s Appeal

The Jury’s Damage Calculation

In its first and second issues, Progressive challenges both the 

sufficiency and weight of the evidence supporting the jury’s award of 

damages. We review these claims under the following standards:

[T]he proper standard of review for an appellate court when 

examining the lower court’s refusal to grant a judgment n.o.v. is 

____________________________________________

11 The notice of appeal was titled a conditional cross-appeal, but the notice 

itself did not state any conditions.

12 The trial court did not order the parties to file a 1925(b) statement of 

errors complained of on appeal. The court filed a Rule 1925(a) opinion that 

addressed Progressive’s issues, but not those raised by Chestnut Ridge.
J-A12011-17

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whether, when reading the record in the light most favorable to 

the verdict winner and granting that party every favorable 

inference therefrom, there was sufficient competent evidence to 

sustain the verdict. Questions of credibility and conflicts in the 

evidence are for the trial court to resolve and the reviewing court 

should not reweigh the evidence. Absent an abuse of discretion, 

the trial court’s determination will not be disturbed.

Ferrer v. Trustees of Univ. of Pennsylvania, 825 A.2d 591, 595 (Pa. 

2002) (citations omitted).

The general rule for a grant of a new trial on the basis that it is 

against the weight of the evidence allows the granting of a new 

trial only when the jury’s verdict is [so] contrary to the evidence 

as to shock one’s sense of justice and a new trial is necessary to 

rectify this situation. Unlike appellate review of a refusal to enter 

a judgment N.O.V., where the evidence and all reasonable 

inferences therefrom are viewed in the light most favorable to 

the verdict winner, the appellate court, in reviewing the refusal 

to grant a new trial, ordinarily considers all of the evidence. The 

court is not required to consider the evidence in the light most 

favorable to the verdict winner when passing on the question of 

whether a verdict is against the weight of the evidence. Rather, 

the court is to view all of the evidence. Moreover, a new trial will 

not be granted on the ground that the verdict was against the 

weight of the evidence where the evidence is conflicting and the 

fact-finder could have decided in favor of either party.

Lanning v. West, 803 A.2d 753, 765-66 (Pa. Super. 2002) (citations 

omitted). Finally,

Where an appellant’s claim arises from a challenge to the jury’s 

determination of damages, our review is highly circumspect:

The duty of assessing damages is within the province of 

the jury and should not be interfered with by the court, 

unless it clearly appears that the amount awarded resulted 

from caprice, prejudice, partiality, corruption or some 

other improper influence. In reviewing the award of 

damages, the appellate courts should give deference to the 

decisions of the trier of fact who is usually in a superior 

position to appraise and weigh the evidence.
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If the verdict bears a reasonable resemblance to the damages 

proven, we will not upset it merely because we might have 

awarded different damages.

Betz v. Erie Ins. Exch., 957 A.2d 1244, 1264 (Pa. Super. 2008) (citations 

omitted), appeal denied, 995 A.2d 350 (Pa. 2010).

Progressive argues that the jury’s award of damages is not supported 

by the evidence as it only represents one month’s worth of the consequential 

damages claimed by Progressive ($27,000), and not thirty-one months’ 

worth ($837,000). Progressive claims that there was no evidence that it 

could have mitigated its damages after one month, as there was no evidence 

that substitute silos listed in a Conair Group quote from 2009 would have 

been available at the time of breach (in 2008). Progressive’s Brief at 22-24. 

Moreover, according to Progressive, the Conair silos were brand new and 

would have cost Progressive $192,507; purchasing them at such a 

disproportionate cost from the Chestnut Ridge silos (approximately $24,000) 

would have been an unreasonable mitigation effort. Id. at 19-22.13

Alternatively, Progressive argues that if the jury found that Progressive had 

a duty to mitigate, then the jury should have awarded it one month of its 

$27,000 consequential damages plus the cost of the replacement silos 

($192,507), and that, as it did not, the court should have granted 

____________________________________________

13 Progressive also argues that the evidence showed that three Imperial 

Industries steel silos would have cost $90,000 and required excessive 

maintenance.
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Progressive’s motion for judgment notwithstanding the verdict (“n.o.v.”) or a 

new trial on damages. Id. at 24-26.

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Michael F. 

Marmo, we conclude that Progressive’s claims must fail. See Trial Ct. Op., 

7/13/16, at 3-5 (finding that (1) Progressive’s calculation of damages relied 

almost exclusively on the testimony of Mr. Busa, its owner, which the jury 

was free to reject; (2) Mr. Busa’s testimony “was conflicting and changing as 

to the actual damages resulting from the breach [and] somewhat refuted by 

Progressive’s former plant manager, Jerry Litchney, who testified the silos 

would not have affected how Progressive operated or the amount of resin 

Progressive would have ordered by railcar,” and was further called into 

question by the circumstances of the 2008 financial collapse and 

contradicted by the fact that Progressive opted not to purchase or lease 

replacement silos following the breach; (3) “it cannot be assumed that the 

award of $27,000 in damages by the jury represented only one month of 

damages due to mitigation . . . [as] the jury made no express findings of 

Progressive’s monthly damages or as to whether Progressive could have 

mitigated its damages after only one month by purchasing or leasing 

replacement silos”; and (4) because the jury initially rejected the claim 

altogether, the final award of $27,000 was likely a compromise verdict,14

____________________________________________

14 As stated by the trial court:

(Footnote Continued Next Page)
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and “appears to be a reasonable compromise reached by the jury and is 

supported by ample evidence in this case”). The evidence was sufficient to 

support a judgment of $27,000, Ferrer, 825 A.2d at 595, and the weight of 

the evidence presented by both parties does not shock our sense of justice.

Lanning, 803 A.2d at 765-66. We therefore affirm on this issue on the basis 

of the trial court’s opinion.

Expert’s Damage Calculation

Progressive next complains that the trial court erred in allowing 

Chestnut Ridge’s expert, Ms. Marchelletta, to testify regarding her 

calculation of damages. Progressive’s Brief at 26-27. Progressive argues that 

although the court ruled the UCC inapplicable to a damages calculation in 

this case, Ms. Marchelletta’s testimony invoked the UCC calculation (though 

it did not specifically reference the UCC).15 Progressive contends that this 

(Footnote Continued) _______________________

Compromise verdicts are verdicts where the fact-finder is in 

doubt as to the defendant’s liability vis-à-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.

Trial Ct. Op. at 4 (quoting Morin v. Brassington, 871 A.2d 844, 852-53 

(Pa. Super. 2005)).

15 Section 2713(a) of the UCC, titled “Damages of buyer for nondelivery or 

repudiation,” states —

the measure of damages for nondelivery or repudiation by the 

seller is the difference between the market price at the time 

when the buyer learned of the breach and the contract price, 

together with any incidental and consequential damages . . . , 

but less expenses saved in consequence of the breach by the 

seller.

(Footnote Continued Next Page)
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inconsistency was confusing to the jury and that the admission of Ms. 

Marchelletta’s testimony warrants a new trial.

“Admissibility of expert testimony is left to the sound discretion of the 

trial court, and as such, this Court will not reverse the trial court’s decision 

absent an abuse of discretion.” Snizavich v. Rohm & Haas Co., 83 A.3d 

191, 194 (Pa. Super. 2013), appeal denied, 96 A.3d 1029 (Pa. 2014). To 

warrant a new trial, “an evidentiary ruling must not only be erroneous, but 

also harmful or prejudicial to the complaining party.” Ettinger v. TrianglePacific Corp., 799 A.2d 95, 110 (Pa. Super. 2002), appeal denied, 815 

A.2d 1042 (Pa. 2003). 

Regarding this issue, the trial court found:

Chestnut’s expert never testified that she was applying the 

UCC’s measure of damages. While Chestnut’s expert may have 

incorporated some of the same concepts embodied in the UCC, 

this is to be expected as there are only so many ways to 

calculate damages. Chestnut was free to offer expert testimony 

to rebut Mr. Busa’s calculation of damages and Progressive had 

ample opportunity to cross examine Chestnut’s expert. There is 

no evidence the jury was confused or prejudiced by the damages 

formula presented by Chestnut’s expert, or that the jury even 

adopted or considered such formula in reaching its verdict.

Trial Ct. Op., 7/13/16, at 5. We agree, and add that the trial court duly 

instructed the jury (1) on how to calculate damages (and did not do so in a 

way that mirrored the UCC), see N.T. Trial, at 484-86, (2) to judge the 

credibility of each witness, see id. at 490-94, and (3) that it was free to 

(Footnote Continued) _______________________

13 Pa.C.S. § 2713(a).
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reject the opinion of the expert, see id. at 496-98. We therefore see no 

reason to conclude that the trial court abused its discretion in admitting the 

expert testimony or that its admission was so prejudicial to Progressive as to 

warrant a new trial. See Snizavich, 83 A.3d at 194; Ettinger, 799 A.2d at 

110.

Litchney’s Video Deposition

Progressive argues that the trial court erred in allowing Chestnut Ridge 

to play portions of the seven-hour video deposition of Gerald Litchney. 

Progressive’s Brief at 27-29. Progressive argues that while it had agreed to 

the portions of the video that would be played on the first day of trial, 

Chestnut Ridge played other portions on the second day of trial without 

giving adequate notice to Progressive. According to Progressive, lack of 

notice, in combination with the piecemeal way in which the video was edited 

and presented, was prejudicial to Progressive’s ability to confront the 

evidence. We reiterate that the admission of evidence is left to the sound 

discretion of the trial judge. See Valentine v. Acme Markets, Inc., 687 

A.2d 1157, 1160 (Pa. Super. 1997).

After a review of the record, the briefs of the parties, the applicable 

law, and the trial court opinion, we conclude that this issue merits no relief. 

See Trial Ct. Op., 7/13/16, at 6 (finding that each party was given 

opportunity to use the entirety of the video deposition, and that Progressive 

elected to read only portions of the deposition to the jury in rebuttal). The 

trial court did not abuse its discretion in allowing portions of the deposition 
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to be played by Chestnut Ridge, as it allowed Progressive the same 

opportunity. Valentine, 687 A.2d at 1160.

Verdict Slip

Progressive’s final complaint is that the verdict slip was misleading. 

Progressive’s Brief at 29-31. The verdict slip’s first question was: 

Do you find that Progressive Plastics sustained damages as a 

proximate result of Chestnut’s breach of the auction contract?

The second question was:

Taking into account Progressive’s duty to mitigate its damages, 

do you find that Progressive sustained damages as a proximate 

result of the breach of the auction contract that could not have 

been prevented by the timely purchase of substitute silos?

Progressive argues that by mentioning Progressive’s “duty to mitigate” in the 

second question, the verdict slip suggested that Progressive, and not 

Chestnut Ridge, bore the burden to prove whether or not Progressive had 

mitigated its damages. Progressive also argues that the language of the 

verdict slip indicated that purchasing substitute silos was the only form of 

mitigation, a reasonable form of mitigation, or an obligatory form of 

mitigation, rather than more generally questioning whether Progressive 

could have mitigated its losses through “reasonable actions.” Finally, 

Progressive argues that by referring to “substitute silos,” the verdict slip 

indicated that there were comparable silos available for purchase, contrary 

to the facts presented at trial.

Generally, a trial judge in Pennsylvania may grant or refuse a 

request for special findings on the basis of whether such would 

add to the logical and reasonable understanding of the issue. We 
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will not disturb a trial judge’s decision to grant or refuse the 

request absent an abuse of discretion.

Century 21 Heritage Realty, Inc. v. Bair, 563 A.2d 114, 116 (Pa. Super. 

1989).

Here, the trial court stated that it did not believe the verdict slip was 

misleading regarding the burden of proof, and noted that it charged the jury 

that “the burden of proof is on the defendant to demonstrate the 

plaintiff failed to mitigate the damage incurred.” Trial Ct. Op., 7/13/16, 

at 6-7 (emphasis added by trial court). The trial court explained that the 

mention of substitute silos on the verdict slip was proper because Chestnut 

Ridge had argued at trial that Progressive had the duty to mitigate through 

the purchase of substitute silos. Id. at 7.

We agree with the trial court that the verdict slip was not confusing 

and represented the positions of the parties at trial. We note that in addition 

to the court’s charge to the jury regarding the burden of proof, the trial 

court also instructed the jury that mitigation involves reasonable actions to 

reduce or eliminate the damage incurred, and that the question for the jury 

was whether Progressive’s response to the breach was reasonable in light of 

all facts and circumstances at the time the breach occurred. See N.T. at 

484-86. We therefore find that the trial court did not abuse its discretion in 

using the verdict slip. See Century 21 Heritage Realty, 563 A.2d at 116.
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Chestnut Ridge’s Cross-Appeal

Summary Judgment

Chestnut Ridge complains that the trial court erred when it granted 

Progressive’s motion for summary judgment in Chestnut Ridge’s declaratory 

judgment action,16 because language in Paragraph 9 (titled “AUCTIONEER’S 

LIABILITY”) of the auction’s Terms of Sale states, “in all instances, the 

highest bid shall be accepted by both the buyer and seller as the value 

against which all claims for loss or damage shall lie.” Chestnut Ridge 

contends that this provision limits its liability for non-delivered items to the 

purchase price paid by Progressive, the buyer. Chestnut Ridge’s Brief at 45-

49. Chestnut Ridge also argues that because Davis (the auctioneer) was 

acting as Chestnut Ridge’s agent, Chestnut Ridge may invoke the same 

contractual defenses against Progressive as could Davis, including defenses 

under Paragraph 9. Id. at 41-44.17

____________________________________________

16 Chestnut Ridge’s failure to file a post-verdict motion does not preclude our 

review of this issue, as post-verdict motions are not required for 

preservation of a summary judgment ruling. See Pa.R.C.P. 227.1(c), note. 

Although Chestnut Ridge’s May 9, 2016 cross-appeal preceded entry of final 

judgment on May 25, 2016, it, like Progressive’s premature appeal, was 

perfected once final judgment was entered. See note 10, supra. See also

Herder Spring Hunting Club v. Keller, 93 A.3d 465, 465 n.1 (Pa. Super. 

2014) (appeal from order granting summary judgment proper only after final 

disposition of counterclaims). 

17 Progressive contends that this theory was waived by Chestnut Ridge’s 

failure to assert it before the trial court in response to Progressive’s motion 

for summary judgment. Progressive’s Reply Brief at 13-14. Our review of the 

record discloses that (1) Chestnut Ridge raised this theory in its preliminary 

objections to Progressive’s counterclaim; (2) Progressive preemptively raised 

(Footnote Continued Next Page)
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After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Alan 

Hertzberg,18 we conclude that there is no merit to this issue. See Trial Ct. 

Op., 1/19/11, at 3-5 (finding that (1) Paragraph 9 of the Terms of Sale 

limited only the liability of the auctioneer (Davis) and not the seller 

(Chestnut Ridge) because: (a) the title of the paragraph is “AUCTIONEER’S 

LIABILITY,” and (b) the second clause of the second sentence in the 

paragraph, upon which Progressive relies, is preceded by a conjunctive 

“and,” relating it to the first clause of the sentence (which specifically 

describes the liability of the auctioneer); and (2) in any event, the second 

clause of Paragraph 9’s second sentence controls only the value of the item

in any dispute, and does not preclude claims for consequential damages, 

punitive damages, or attorneys’ fees, or dictate the amount of those claims). 

Our agreement with the trial court’s view that Paragraph 9 applies only 

to the auctioneer is buttressed by the fact that Paragraphs 7 and 11 of the 

Terms of Sale expressly refer to both the auctioneer (the principal’s agent) 

(Footnote Continued) _______________________

the theory in support of its motion for summary judgment; and (3) part of 

Chestnut Ridge’s response to Progressive’s motion for summary judgment 

distinguished the cases cited by Progressive in relation to this theory. In 

light of the foregoing, we decline to find waiver.

18 Upon Chestnut Ridge’s original appeal of this matter, which was quashed 

as interlocutory, see note 5, supra, Judge Hertzberg issued a Rule 1925(a) 

opinion addressing this issue. Judge Hertzberg did not preside at trial 

following his disposition of the motion for summary judgment.
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and the principal, but Paragraph 9 refers only to the auctioneer.19 This 

difference evinces that Paragraph 9 limits only the liability of the auctioneer, 

and not the principal or seller. See Allegheny Inspection Serv., Inc. v. N. 

Union Twp., 964 A.2d 878, 888 (Pa. 2009) (“the mention of one thing 

implies the exclusion of all others”); cf. Restatement (Second) of Agency § 

146 (1958) (“If an agent of a disclosed or partially disclosed principal makes 

an authorized contract with a third person, the liability of the principal 

thereon depends upon the agreement between the agent and the other 

party as to the parties to the transaction. . . . There may be an agreement 

that the principal alone is a party, that the agent alone is a party, or that the 

principal and the agent are both to be parties”).

Applicability of the UCC 

In its second issue, Chestnut Ridge complains that the trial court erred 

when ruling that the Pennsylvania UCC did not apply to the sale of Chestnut 

Ridge’s silos and that damages on Progressive’s counterclaim should not be 

calculated pursuant to the UCC. Chestnut Ridge’s Brief at 50-52. However, 

____________________________________________

19 According to Paragraph 7, “ . . . the Auctioneer and principal [are not] 

responsible if all or any part of such purchases are lost, stolen, damaged or 

destroyed from any cause whatsoever,” and, according to Paragraph 11, 

“[n]either the auctioneer nor his principal shall be liable by reason of any 

defect in or condition of the premises on which the sale is held.”
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we deem this issue to be waived by Chestnut Ridge’s failure to preserve it in 

a post-trial motion.20

Chestnut Ridge raised the UCC issue before the trial court in a pretrial 

brief21 and in a May 13, 2015 request for jury instructions that was rejected 

by the trial court.22 However, Chestnut Ridge did not revive these arguments 

in a post-trial motion following entry of the adverse verdict on Progressive’s 

counterclaim, as required by Rule 227.1 of the Rules of Civil Procedure. As 

noted by our Supreme Court,

____________________________________________

20 We may raise this issue sua sponte because it affects the appealability of 

the issue. See, e.g., Warfield v. Shermer, 910 A.2d 734, 737 (Pa. Super. 

2006); Borough of Harveys Lake v. Heck, 719 A.2d 378, 380 (Pa. 

Cmwlth. 1998) (raising absence of post-trial motions sua sponte and 

dismissing appeal).

21 Two days after trial began, on May 7, 2015, Chestnut Ridge presented a 

“Brief on the Applicability of the Pennsylvania Uniform Commercial Code,” 

but the record is unclear as to whether this brief was submitted in relation to 

a motion. The trial court considered the brief and the arguments of the 

parties during trial. See N.T. at 139-40, 148-61. While it is unclear when the 

court ruled on the “motion,” the trial transcript suggests that at some point 

the court decided that the UCC would not control the damages calculation. 

See N.T. at 303-04 (Progressive objecting to Ms. Marchelletta’s testimony, 

which used the same calculation of damages as the UCC); id. at 402-03 

(Progressive objecting to the admission of Chestnut Ridge’s Ex. 25, Ms. 

Marchellata’s evaluation of damages). In view of our disposition, we do not 

need to address Progressive’s argument that the failure to enter an order 

with the court’s ruling on the docket in violation of Pa.R.A.P. 301(a)(1) 

provides an alternate basis to find waiver. See Reply Brief of Progressive at 

34.

22 See N.T. at 412-13, 423-26 (ruling excluding jury instructions and 

interrogatories on UCC damages and statement by Progressive that “the 

Court has previously ruled that the UCC is not part of the case for the 

reasons that were articulated at that time”).
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Rule 227.1(b) establishes that issues not preserved . . . in posttrial motions, see Pa.R.C.P. 227.1(b)(2), are waived. As this 

Court ruled in Lane Enterprises, Inc. v. L.B. Foster Co., 551 

Pa. 306, 710 A.2d 54 (1998), Rule 227.1 “requires parties to file 

post-trial motions in order to preserve issues for appeal,” and 

“[i]f an issue has not been raised in a post-trial motion, it is 

waived for appeal purposes.” Id. at 54.

Bd. of Supervisors of Willistown Twp. v. Main Line Gardens, Inc., 155 

A.3d 39, 44 (Pa. 2017); see also Vautar v. First Nat’l Bank of 

Pennsylvania, 133 A.3d 6, 10 (Pa. Super. 2016) (en banc).23 Therefore, 

Chestnut Ridge’s failure to file a post-verdict motion on this issue is fatal to 

our ability to review it.

Deposition of Brian Gill

In its third and final issue, Chestnut Ridge complains that the trial 

court erred in excluding from evidence the deposition of Brian Gill.24 We 

deem this issue to be waived as well.

____________________________________________

23 Chestnut Ridge’s failure to file a post-verdict motion is not excused by its 

status as a cross-appellant. Although this court has relaxed waiver when a 

non-aggrieved party fails to file a “cautionary” post-verdict motion in 

anticipation of an aggrieved party’s appeal, see Jara v. Rexworks Inc., 

718 A.2d 788, 792 (Pa. Super. 1998), appeal denied, 737 A.2d 743 (Pa. 

1999), here Chestnut Ridge was an aggrieved party by virtue of the 

judgment entered against it, and therefore was obligated to file its own 

appeal to address any adverse rulings of the trial court. The decision 

rejecting the UCC’s damages measure was such an adverse ruling, and this 

issue could be preserved only by filing a post-verdict motion. 

24 Once again, Progressive argues that this issue was waived for failure to 

enter an order on the docket in violation of Pa.R.A.P. 301(a)(1), Reply Brief 

of Progressive at 34, and once again, we do not reach that issue. See note 

21, supra.
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Brian Gill was first deposed on March 20, 2015. On April 28, 2015, 

Progressive filed notice that a second deposition “for use at trial” would be 

taken on April 29, 2015, as it had come to Progressive’s attention that Gill 

would not be available to testify at trial. The April 29th deposition was video 

recorded, and counsel for both parties were present and questioned Gill. At 

trial on May 6, 2015, after the video of the April 29th deposition was played 

for the jury, Chestnut Ridge moved for portions of the transcript of the 

March 20, 2015 deposition to be admitted into evidence. The court denied 

the motion, and ruled that the testimony from the March 20 deposition 

would be excluded. See N.T. at 142-48 (discussing off-the-record ruling 

made the previous evening). Chestnut Ridge filed a written motion for 

reconsideration on May 7, 2015, but no formal action appears to have been 

taken on that motion.25

Chestnut Ridge did not re-raise its objection to this evidentiary ruling 

in a Rule 227.1 motion after the verdict was rendered. Therefore, for the 

reasons set forth above in relation to Chestnut Ridge’s argument regarding 

applicability of the UCC, we conclude that this issue is waived and we are 

unable to review it.

____________________________________________

25 The motion was docketed on May 13, 2015, but there is no indication that 

the court formally addressed it. See N.T. at 147-48 (statement by court 

that, “A brief was submitted for consideration and that will be part of the 

record so I think we’ve got that issue out of the way and I will read this 

later”).
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In light of the forgoing, we affirm the judgment entered by the trial 

court. As we affirm in part on the bases of the trial court’s opinions, the 

parties are instructed to attach the opinions of January 19, 2011, and 

July 13, 2016, to any filings referencing this Court’s decision.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2017