J. A25034/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

RICHARD COLUCCIO, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

MICHAEL KARP, JAMES D’ANGELO, JR., :

AND D’ANGELO INVESTMENT GROUP, :

LLC, :

:

: No. 388 EDA 2015

Appeal from the Judgment January 21, 2015

In the Court of Common Pleas of Bucks County 

Civil Division No(s).: 2011-06293

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

MEMORANDUM BY FITZGERALD, J.: FILED NOVEMBER 24, 2015

Appellant, Richard Coluccio, appeals from the judgment entered in the 

Bucks County Court of Common Pleas following a bench trial and verdict in 

favor of Appellees, Michael Karp and D’Angelo Investment Group, LLC 

(“DIG”).1 Appellant raises twelve claims of error in this breach of contract 

suit. We affirm.

 

*

Former Justice specially assigned to the Superior Court.

1 Appellee James D’Angelo, Jr., consented to entry of default judgment 

against him. Appellant’s counsel appears to have represented D’Angelo’s 

father in a lawsuit involving an allegedly fraudulent mortgage note signed by 

D’Angelo. See generally In re D’Angelo, 479 B.R. 649 (Bankr. E.D. Pa. 

2012).
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We adopt the trial court’s findings of fact. See Trial Ct. Op., 12/26/14,

at 1-11. New Jersey law governs the interpretation of this contract,2 R.R. at 

43a,3and the contract includes an integration clause:4

This Agreement . . . contains the entire agreement 

between the parties hereto with respect to the Company. 

No variations, modifications or changes herein nor any 

waiver of any provision hereof shall be binding unless set 

forth in a document duly executed by or on behalf of each 

of the Members.

Id. at 42a. The disputed contract provision follows:

Payment to [Appellant] by September 14, 2005 of 

$950,000 as final and full payment for any and all interest 

in claims in the Premises or the Company. [Appellant] 

hereby covenants and agrees to sell and release his 

interests in the Premises and the Company in exchange for 

such sum, and shall execute such release and transfer 

documentation as the Company shall reasonably request. 

Upon receipt of the aforesaid payment, [Appellant] shall 

have no further ownership interest in or claims against 

either the Premises or the Company. 

Id. at 27a. 

We add that Appellant did not raise a claim for fraud or piercing the 

corporate veil. Appellant also did not object to Karp’s testimony regarding 

 

2 The agreement provided that any New Jersey conflict-of-law provisions 

that result in the application of non-New Jersey law would not apply.

3

For ease of disposition, we cite to the reproduced record.

4

“The essence of voluntary integration is the intentional reduction of the act 

to a single memorial; and where such is the case the law deems the writing 

to be the sole and indisputable repository of the intention of the parties.” 

Harker v. McKissock, 96 A.2d 660, 665 (N.J. 1953) (citations omitted).
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his routine business practice for wire transfers. Karp moved for default 

judgment against DIG and D’Angelo; Appellant never moved for default 

judgment against DIG. Following a bench trial and a verdict in favor of 

Appellees, Appellant filed a post-trial motion requesting either a new trial or 

the court to modify its verdict to hold Appellees liable.5 See Appellant’s Mot. 

for Post Trial Relief, 1/5/15, at 27; Appellant’s Supp. to Mot. for Post Trial 

Relief, 1/9/15, at 27. Following entry of judgment, Appellant timely 

appealed. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) 

statement raising twenty issues.

In his appellate brief, Appellant raises the following twelve6issues:

 

5 Essentially, in this case, judgment notwithstanding the verdict.

6 We endorse the following:

With a decade and a half of federal appellate court 

experience behind me, I can say that even when we 

reverse a trial court it is rare that a brief successfully 

demonstrates that the trial court committed more than one 

or two reversible errors. I have said in open court that 

when I read an appellant’s brief that contains ten or twelve 

points, a presumption arises that there is no merit to any 

of them. I do not say that this is an irrebuttable 

presumption, but it is a presumption nevertheless that 

reduces the effectiveness of appellate advocacy. Appellate 

advocacy is measured by effectiveness, not 

loquaciousness.

Andaloro v. Armstrong World Indus., Inc., 799 A.2d 71, 83-84 (Pa. 

Super. 2002) (quoting Ruggero J. Aldisert, The Appellate Bar: Professional 

Competence and Professional Responsibility—A View from the Jaundiced Eye 

of One Appellate Judge, 11 Cap. U. L. Rev. 445, 458 (1982)); accord 

Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993) (“[T]he number 
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1. Did Karp breach the Contract by disregarding the one 

sure way to make payment according to the Contract, that 

is, by mailing or delivering a check to “Richard Coluccio . . 

. at 5296 Moyer Road, Pipersville, PA 18947”?

2. Should the trial court have applied the doctrine of 

contra proferentum to construe the terms and conditions 

of the contract against the draftor . . . Karp?

3. Did the trial court erroneously find that the Contract did 

not require any direct payment obligation from Karp 

personally to [Appellant]?

4. Is the court’s finding “that the Joint Account owned by 

Sheridan, D’Angelo, and [Appellant] received a payment of 

$950,000 . . . as required by the Amended Agreement” 

clearly erroneous as a matter of fact and law?

5. Was it an error of law and an abuse of discretion for the 

trial court to allow [Appellees] to present facts contrary to 

his “Joinder Complaint” in which [Appellees] plead [sic] 

“assuming Plaintiff was not paid, D[IG] is responsible for 

payment to Mr. Coluccio . . . [Appellant’s] relief for not 

being paid the $950,000.00 is in the form of his interest in 

[DIG]”?

6. Was it an error of law and an abuse of discretion for the 

trial court to find in favor of the unrepresented LLC, 

namely DIG, who failed to enter an appearance throughout 

the litigation, failed to appear at trial, and failed to answer 

[Appellees’] joinder complaint or motion for default 

judgment?

7. Did Karp’s disregard of virtually all New Jersey Limited 

Liability Act provisions referenced in the Contract he wrote 

“acknowledged, affirmed and ratified in all respects” allow 

[Appellant] to pierce the corporate/LLC veil under New 

Jersey law?

 

of claims raised in an appeal is usually in inverse proportion to their merit 

and that a large number of claims raises the presumption that all are 

invalid.”).
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8. Is the court’s finding of an unwritten “side deal” based 

on competent evidence?

9. Does a written contract render irrelevant as a matter of 

law the court’s finding that [Appellant] the damaged party 

was burdened to prove that “a wire transfer was not the 

common practice in the industry”?

10. Was the trial court’s sua sponte imposition of the 

“adverse interest exception” defense into this case in favor 

of defendants [sic] Karp and the absent DIG an error of 

law and abuse of discretion, particularly since Karp or the 

absent DIG did not raise it themselves, even if it was 

applicable?

11. Is the trial court’s finding that “D’Angelo [was] an 

agent of DIG, [but] was not acting in DIG’s interest when 

he and Sheridan, his agent, removed $944,983.38 of the 

$950,000 from the Joint Account of [Appellant], Sheridan, 

and D’Angelo [(and deposited $500,000 of it back into a 

DIG account)] clearly erroneous as a matter of fact and 

law?[7]

12. Was the denial of [Appellant’s] March 1, 2013 Motion 

to Compel 2005-2006 tax returns during the pretrial 

discovery process an error of law and abuse of discretion 

that deprived [him] of a fair trial?

Appellant’s Brief at 20-23 (reordered and renumbered to facilitate 

disposition).8

 

7 Alterations in original.

8 Appellant, although raising twelve issues, presents only seven arguments 

in his appellate brief, thus violating Pa.R.A.P. 2119(a), which mandates that 

“argument shall be divided into as many parts as there are questions to be 

argued.” See Pa.R.A.P. 2119(a). We decline to quash. See PHH Mortg. 

Corp. v. Powell, 100 A.3d 611, 615 (Pa. Super. 2014) (refusing to quash 

appeal despite numerous violations of appellate briefing rules); see also 

Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing 

requirements scrupulously delineated in our appellate rules are not mere 
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We summarize Appellant’s first and third arguments, both of which 

support his first four issues on appeal. Appellant notes that Karp paid the 

$950,000 to a joint account in the names of Appellant, D’Angelo, and a third 

party. Id. at 46. He suggests that New Jersey law9required that payment 

was due at his residence or place of business. Id. at 37, 45. Appellant, 

however, anticipates that Karp would argue the contract was “silent as to 

how [Appellant] was to be paid the $950,000.” Id. at 46. He refers to a 

September 13, 2005 note10 with the joint account number and his home 

address. Id. at 47. In Appellant’s view, the note established Karp’s intent 

to wire the money to a joint account and not inform him. Id. In conjunction 

with what he perceives was the parties’ reasonable expectations regarding 

 

trifling matters of stylistic preference; rather, they represent a studied 

determination by our Court and its rules committee of the most efficacious 

manner by which appellate review may be conducted so that a litigant’s right 

to judicial review as guaranteed by Article V, Section 9 of our 

Commonwealth’s Constitution may be properly exercised.”). We note 

Appellant initially certified his brief comprised 13,280 words. Appellant’s 

Certification of Compliance, 5/11/15. In response to Appellees’ motion to 

quash this appeal for a defective brief, Appellant averred his brief contained 

13,447 words. Appellant’s Resp. to Appellees’ Mot. to Quash Appeal, 

6/15/15, at 1 (unpaginated). Our own informal word count suggests 

Appellant’s brief is 13,955 words long, which is under the 14,000 word limit 

set forth at Pa.R.A.P. 2135.

9 Although Appellant appears to argue Pennsylvania law applies, see

Appellant’s Brief at 37, 45, the parties previously agreed New Jersey law 

governs the contract. See R.R. at 43a. Appellant has not argued, e.g., that 

the choice-of-law provision is ambiguous.

10 Appellant did not cite to the location in the record where this note could 

be located. We note the reproduced record alone is over a thousand pages.
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method of payment, Appellant suggests the parties deliberately omitted the 

term from the agreement. Id.

Appellant alternatively contends that an ambiguity exists in the 

contract and that per the doctrine of contra proferentum, the contract should 

be construed against the drafter, who was Karp. Id. at 48-49. Appellant 

again observes that his address was listed on page one of the contract. He 

complains that the court, by holding Karp complied with the contract, erred 

by making a better contract thus disregarding contra proferentum. Id. at 

49.

In response, Karp alleges that Appellant raised contra proferentum for 

the first time in his Rule 1925(b) statement. Karp’s Brief at 11. Regardless, 

Karp refers this Court to Appellant’s testimony that Appellant never notified 

Karp or his agents to send the money to Appellant’s home. Id. at 5 (citing 

N.T. Trial, 8/21/14, at 156). Karp cites Appellant’s testimony that he never 

contacted Karp or his agents about not receiving the $950,000. Id. (citing 

N.T., 8/21/14, at 131-32; N.T., 8/22/14, at 57). According to Karp, 

Appellant contacted him in the summer of 2006 and verified that he did not 

have an ownership interest in the project. Id. (citing N.T., 8/25/14, at 114-

15). After careful consideration, we hold Appellant is not entitled to relief.

The standard of review follows:

Our appellate role in cases arising from non-jury trial 

verdicts is to determine whether the findings of the trial 

court are supported by competent evidence and whether 

the trial court committed error in any application of the 
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law. The findings of fact of the trial judge must be given 

the same weight and effect on appeal as the verdict of a 

jury. We consider the evidence in a light most favorable to 

the verdict winner. We will reverse the trial court only if 

its findings of fact are not supported by competent 

evidence in the record or if its findings are premised on an 

error of law.

Amerikohl Mining Co. v. Peoples Natural Gas Co., 860 A.2d 547, 549-50 

(Pa. Super. 2004) (internal quotation marks and citations omitted). “The 

trial court’s conclusions of law on appeal originating from a non-jury trial are 

not binding on an appellate court because it is the appellate court’s duty to 

determine if the trial court correctly applied the law to the facts of the case.” 

Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa. Super. 2005) (internal 

quotation marks and citation omitted). 

The following also illuminates this Court’s standard and scope of 

review from an order resolving a post-trial motion: 

An appellate court will reverse a trial court’s grant or 

denial of a JNOV only when the appellate court finds an 

abuse of discretion or an error of law. Our scope of review 

with respect to whether judgment n.o.v. is appropriate is 

plenary, as with any review of questions of law.

In reviewing a motion for judgment n.o.v., the evidence 

must be considered in the light most favorable to the 

verdict winner, and he must be given the benefit of every 

reasonable inference of fact arising therefrom, and any 

conflict in the evidence must be resolved in his favor. 

Moreover, a judgment n.o.v. should only be entered in a 

clear case and any doubts must be resolved in favor of the 

verdict winner. Further, a judge’s appraisement of 

evidence is not to be based on how he would have voted 

had he been a member of the jury, but on the facts as 

they come through the sieve of the [fact-finder’s] 

deliberations.
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There are two bases upon which a judgment 

n.o.v. can be entered: one, the movant is 

entitled to judgment as a matter of law, and/or 

two, the evidence was such that no two 

reasonable minds could disagree that the 

outcome should have been rendered in favor of 

the movant. With the first a court reviews the 

record and concludes that even with all factual 

inferences decided adverse to the movant the 

law nonetheless requires a verdict in his favor, 

whereas with the second the court reviews the 

evidentiary record and concludes that the 

evidence was such that a verdict for the movant 

was beyond peradventure.

Questions of credibility and conflicts in the evidence are for 

the fact-finder to resolve and the reviewing court should 

not reweigh the evidence. If there is any basis upon which 

the fact-finder could have properly made its award, the 

denial of the motion for judgment n.o.v. must be affirmed.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011) 

(per curiam) (internal brackets, ellipses, and citations omitted).

In reviewing a trial court’s denial of a motion for a new 

trial, the standard of review for an appellate court is as 

follows:

It is well-established law that, absent a clear 

abuse of discretion by the trial court, appellate 

courts must not interfere with the trial court’s 

authority to grant or deny a new trial.

Thus, when analyzing a decision by a trial court 

to grant or deny a new trial, the proper 

standard of review, ultimately, is whether the 

trial court abused its discretion.

Moreover, our review must be tailored to a well-settled, 

two-part analysis:
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We must review the court’s alleged mistake and 

determine whether the court erred and, if so, 

whether the error resulted in prejudice 

necessitating a new trial. If the alleged mistake 

concerned an error of law, we will scrutinize for

legal error. Once we determine whether an 

error occurred, we must then determine 

whether the trial court abused its discretion in 

ruling on the request for a new trial.

Gurley v. Janssen Pharms., Inc., 113 A.3d 283, 288-89 (Pa. Super. 

2015) (internal alterations, brackets, and citations omitted). We add that 

“[f]ailure to preserve [an issue] in a post-trial motion results in a waiver of 

that issue on appeal.” Nogowski v. Alemo-Hammad, 691 A.2d 950, 955 

(Pa. Super. 1997) (citation omitted).

As noted above, New Jersey law governs the interpretation of the 

instant contract: 

The polestar of construction is the intention of the parties 

to the contract as disclosed by the language used, taken 

as an entirety; and, in the quest for the intention, the 

situation of the parties, the attendant circumstances, and 

the objects they were thereby striving to attain are to be 

regarded. Even when the contract on its face is free from 

ambiguity, evidence of the situation of the parties and the 

surrounding circumstances and conditions is admissible in 

aid of interpretation. The inquiry is the meaning of the 

words when assayed by the standard adopted by the law. 

On the theory that all language will bear some different 

meanings, evidence of the circumstances is always 

admissible in the construction of integrated 

agreements,

[11] but not for the purpose of giving effect to 

 

11 If a contract contains an integration clause, “and it is not apparent from 

the writing itself that something is left out to be supplied by extrinsic 

evidence, parol evidence to vary or add to its terms is not admissible.” 
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an intent at variance with any meaning that can be 

attached to the words. This is a primary rule of 

interpretation which has special application where the 

meaning of the instrument is not clearly apparent. The 

admission of evidence of extrinsic facts is not for the 

purpose of changing the writing, but to secure light by 

which to measure its actual significance. Such evidence is 

adducible only for the purpose of interpreting the writingnot for the purpose of modifying or enlarging or curtailing 

its terms, but to aid in determining the meaning of what 

has been said. So far as the evidence tends to show 

not the meaning of the writing, but an intention 

wholly unexpressed in the writing, it is irrelevant. 

And the general design of the agreement is to be kept in 

view in ascertaining the sense of particular terms. In 

short, we are to consider what was written in the light of 

the circumstances under which it was written, and give to 

the language a rational meaning consistent with the 

expressed general purpose.

Casriel v. King, 65 A.2d 514, 516-17 (N.J. 1949) (emphases added and 

citations omitted); accord Conway v. 287 Corp. Ctr. Assocs., 901 A.2d 

341, 347 (N.J. 2006) (“Semantics cannot be allowed to twist and distort the 

words’ obvious meaning in the minds of the parties.” (quotation marks and 

citation omitted)); Jacobs v. Great Pac. Century Corp., 518 A.2d 223 

(N.J. 1986).12 

 

Schlossman’s, Inc. v. Radcliffe, 70 A.2d 493, 495 (N.J. 1950) (citations 

omitted).

12 Contra Murphy v. Duquesne Univ. of the Holy Ghost, 777 A.2d 418, 

429 (Pa. 2001) (“Only where a contract’s language is ambiguous may 

extrinsic or parol evidence be considered to determine the intent of the 

parties.” (citation omitted)).
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The Conway Court concisely explained the role of parol evidence in a 

fully integrated agreement:

In sum, we permit a broad use of extrinsic evidence to 

achieve the ultimate goal of discovering the intent of the 

parties. Extrinsic evidence may be used to uncover the 

true meaning of contractual terms. It is only after the 

meaning of the contract is discerned that the parol 

evidence rule comes into play to prohibit the introduction 

of extrinsic evidence to vary the terms of the contract.

Conway, 901 A.2d at 347; Schlossman’s, 70 A.2d at 495. “Where an 

ambiguity appears in a written agreement, the writing is to be strictly 

construed against the draftsman,” i.e., contra proferentum. In re Miller’s 

Estate, 447 A.2d 549, 555 (N.J. 1982).

To the extent that contract terms may be implied:

Some principles have been utilized to define those 

implications. Thus we have held that terms will be implied 

in a contract where the parties must have intended them 

because they are necessary to give business efficacy to the 

contract as written. Moreover, in every contract there is 

an implied covenant of good faith and fair dealing. As a 

corollary to that proposition it is certainly reasonable to 

imply that neither party to a contract shall injure the right 

of the other to receive the fruits of the agreement. 

There are also some situations in which a condition will 

be implied on grounds of fairness and justice. . . .

Where fairness and justice require, even 

though the parties to a contract have not 

expressed an intention in specific language, the 

courts may impose a constructive condition to 

accomplish such a result when it is apparent 

that is necessarily involved in the contractual 

relationship.
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The law has outgrown its primitive stage of 

formalism when the precise word was the 

sovereign talisman, and every slip was fatal. It 

takes a broader view today. A promise may be 

lacking, and yet the whole writing may be 

instinct with an obligation, imperfectly 

expressed . . . .

In determining under contract law, what 

covenants are implied, the object which the 

parties had in view and intended to be 

accomplished, is of primary importance. The 

subject matter and circumstances of the 

[contracting] give at least as clear a clue to the 

natural intentions of the parties as do the 

written words. It is of course not the province 

of the court to make a new contract or to supply 

any material stipulations or conditions which 

contravene the agreements of the parties. 

Terms are to be implied not because

they are just or reasonable, but rather for 

the reason that the parties must have intended 

them and have only failed to express them . . . 

or because they are necessary to give business 

efficacy to the contract as written, or to give the 

contract the effect which the parties, as fair and 

reasonable men, presumably would have agreed 

on if, having in mind the possibility of the 

situation which has arisen, they contracted 

expressly in reference thereto.

Onderdonk v. Presbyterian Homes of N.J., 425 A.2d 1057, 1062-63 

(N.J. 1981) (citations, alteration, and internal quotation marks omitted). 

Instantly, although the contract contains an integration clause, we 

may consider extrinsic evidence to the extent it aids interpretation of the 

terms of the contract. See Casriel, 65 A.2d at 516-17; see also 

Schlossman’s, 70 A.2d at 495. Appellant, however, has not identified any 
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contract term regarding method of payment. Appellant has also not 

identified or referred this Court to any extrinsic evidence tending to 

establish an existing contract term’s significance with respect to payment 

method.13 See Casriel, 65 A.2d at 516-17. 

Appellant has referred this Court to an alleged note14 purporting to 

establish Karp’s intent to wire the money to a joint account. Such evidence, 

however, does not clarify the meaning of an existing contract term but 

establishes “an intention wholly unexpressed” in the contract, i.e., method of 

payment. See id.; accord Conway, 901 A.2d at 347 (holding extrinsic 

evidence cannot vary terms of contract). Thus, the alleged note is irrelevant 

as it does not pertain to an existing contract term. See Casriel, 65 A.2d at 

516-17. With respect to Appellant’s contra proferentum argument, he 

waived it on appeal by not preserving the issue in his post-trial motion. See 

Nogowski, 691 A.2d at 955. Regardless, on the merits, because Appellant 

cannot identify any ambiguity in an existing contract term, contra 

proferentum does not apply. See In re Miller’s Estate, 447 A.2d at 555.

Appellant also argued that the court should impute into the contract a 

term alleged required by New Jersey law: payment was due via check at his 

 

13 The agreement preamble stating Appellant’s address is not extrinsic 

evidence.

14 As noted above, Appellant did not identify where in the extensive record 

this note could be found.
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Pennsylvania home/business address. Appellant, however, has not 

referenced any evidence that such a term was both obvious and material to 

effectuating the agreement’s purpose. See Onderdonk, 425 A.2d at 1062. 

The agreement, as a whole, does not imperfectly express an obligation that 

payment must be sent via check to Appellant’s address. See id. While we 

agree it is reasonable to imply that Karp would not “injure the right” of 

Appellant to receive $950,000, Karp actually paid the $950,000. See id. 

But as Karp observed, Appellant did not even follow up with Karp about not 

receiving the $950,000, let alone at his home via check. See Karp’s Brief at 

5 (citing trial testimony). This tends to suggest that such a term was not 

obvious, let alone material, to executing the agreement. See Onderdonk, 

425 A.2d at 1062. After careful consideration of the record in Karp’s favor, 

we do not discern trial court error. See Amerikohl, 860 A.2d at 549-50.

Appellant’s second and fifth arguments pertain to his fifth, sixth, 

seventh, and eighth issues on appeal. Appellant argues that because the 

court entered default judgment against D’Angelo, it should also have entered 

a default judgment against DIG. Appellant’s Brief at 52. He faults the trial 

court for permitting trial to continue against DIG. Appellant alleges that DIG 

and Karp are identical and he should have been allowed to “pierce the 

corporate veil.” Id. at 60. He also contends the court improperly 

considered parol evidence of an alleged “side deal.” Id. at 62. In support of 

his arguments, Appellant cites to two unreported appellate decisions. Id. at 
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53 (citing Straban Twp. v. Hanoverian Trust, 708 C.D. 2014, 2015 WL 

5432435, *3 (Pa. Cmwlth. Apr. 22, 2015) (holding “corporation may appear 

in court proceedings only by counsel.”)), 60 (citing Magna Fabrics, Inc. v. 

N.Y. Art & Shipping, LLC, No. A-5322-11T3, 2013 N.J. Super. Unpub. 

LEXIS 2016 (N.J. Super. Ct. App. Div. Aug. 8, 2013) (quoting jury 

instruction stating shareholder of LLC may be liable for LLC’s debts)).

Karp counters that Appellant failed to cite any applicable legal 

authority. Regardless, Karp points out that Appellant did not move for a 

default judgment against DIG. He claims that DIG’s failure to appear did not 

bar the trial court from entering judgment—whether favorable or 

unfavorable. Karp’s Brief at 15-16. In reply, Appellant maintains that DIG’s 

failure to appear resulted in a “free pass” that deprived him of the judgment 

that was also awarded against D’Angelo. We hold Appellant has waived 

entitlement to relief.

“It is the appellant who has the burden of establishing his entitlement 

to relief by showing that the ruling of the trial court is erroneous under the 

evidence or the law. Where the appellant has failed to cite any authority in 

support of a contention, the claim is waived.” Bunt v. Pension Mortg. 

Assocs., Inc., 666 A.2d 1091, 1095 (Pa. Super. 1995) (citations omitted); 

accord Moranko v. Downs Racing LP, 118 A.3d 1111, 1117 n.3 (Pa. 

Super. 2015) (en banc). Appellant, however, cites to an unreported 

Commonwealth Court decision that stands for the proposition that a 
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corporation may not appear in court without counsel. Appellant similarly 

cites to an unreported New Jersey appellate court decision, which quoted a 

jury instruction stating that an LLC’s shareholder could be liable for an LLC’s 

debts. Appellant provides no legal analysis, let alone binding precedential 

authority, explaining why the court erred and why he is entitled to have 

D’Angelo’s judgment apply to DIG, and thus, he has waived this argument in 

support of his two issues. See Bunt, 666 A.2d at 1095.15 Even if Appellant 

had supported his claims, we note that Appellant did not move for a default 

judgment against DIG and never raised a claim for fraud, let alone piercing 

the corporate veil.

Appellant’s fourth argument is in support of his ninth issue. The 

court’s forty-fifth finding of fact follows: “It is common practice in 

commercial business to wire transfer money.” Trial Ct. Op., 12/26/14, at 9 

(citing Karp’s testimony). Appellant alleges the trial court erred with its 

forty-sixth finding of fact: “[Appellant] supplied no testimony to evidence 

that a wire transfer was not the common practice in the industry.” Id.

(citing entirety of Appellant’s trial testimony). Based on this finding of fact, 

Appellant opines the court erred by requiring him to establish a wire transfer 

was not a common industry practice. Appellant’s Brief at 58. He contends 

 

15 See also In re D’Angelo, 479 B.R. at 659 (stating “brief contains no 

viable legal argument” and employs “inflammatory language”), 660 (noting 

lack of citation to legal authority).
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the agreement was not ambiguous because there was no contract term 

requiring a wire transfer. Id. at 59. Appellant thus reasons that because 

the relevant term did not exist, the trial court’s scope was limited to only the 

integrated agreement. Id. He concludes that by requiring him to prove that 

a wire transfer was not a typical banking custom, the court erred. We hold 

Appellant is not entitled to relief. 

As noted above, we ascertain whether “the findings of the trial court 

are supported by competent evidence.” Amerikohl, 860 A.2d at 549-50. 

The standard of review for an evidentiary ruling follows:

It is axiomatic that, in order to preserve an issue for 

review, litigants must make timely and specific objections 

during trial and raise the issue in post-trial motions. 

Granting or denying an untimely objection lies in the 

discretion of the trial court. Requiring a litigant to make a 

timely, specific objection during trial ensures that the trial 

court has a chance to correct alleged trial errors. We have 

stressed that waiver is indispensable to the orderly 

functioning of our judicial process and developed out of a 

sense of fairness to an opposing party and as a means of 

promoting jurisprudential efficiency by avoiding appellate 

court determinations of issues which the appealing party 

has failed to preserve.

Harman v. Borah, 756 A.2d 1116, 1124-25 (Pa. 2000) (internal quotation 

marks, brackets, and citations omitted).

After reviewing Appellant’s trial testimony, we conclude the trial court 

accurately portrayed the absence of such testimony. See Amerikohl, 860 

A.2d at 549-50. To the degree that Appellant seemingly argues that the trial 

court’s finding of fact reflected an improper alteration of his burden of proof, 
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we need not resolve it. Appellant failed to object to Karp’s testimony 

regarding his customary business practice with respect to wire transfers. 

See N.T., 8/25/14, at 73-181; see also Trial Ct. Op., 12/26/14, at 9. 

Because he failed to object, Appellant waived the issue on appeal. See 

Harman, 756 A.2d at 1124-25.

Regardless, evidence of whether a wire transfer is common banking 

practice is extrinsic evidence. See Conway, 901 A.2d at 347. Such 

evidence, therefore, can be used to discern “the true meaning of contractual 

terms.” See id. Appellant, however, conceded there is “literally no 

ambiguous term pertaining to a wire transfer because a wire transfer is not 

stated in the writing.” See Appellant’s Brief at 59. Contra id. at 48-49 

(arguing contract is ambiguous). Because there is no ambiguous term, 

Appellant agrees that such evidence cannot establish a wholly unexpressed 

contract term that payment was to be made via check to Appellant’s home 

address. See Conway, 901 A.2d at 347. 

For his sixth argument, which supports his tenth and eleventh issues, 

Appellant contends the court sua sponte invoked the “adverse interest 

exception” defense on behalf of Appellees. See Appellant’s Brief at 63. He 

insists the defense applies only in fraud cases and thus cannot be raised in 

the instant breach-of-contract matter. Appellant, moreover, asserts that the 

court overlooked elements of the defense that are missing from the record. 
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Appellant thus opines the court erred by rendering the following conclusions 

of law:

24. D’Angelo, an agent of DIG, was not acting in DIG’s 

interest when he and Sheridan, his agent, removed 

$944,983.38 of the $950,000 from the Joint Account of 

Coluccio, Sheridan, and D’Angelo.

25. D’Angelo, an agent of DIG, was not acting in DIG’s 

interest when he failed to give Coluccio the full $950,000 

to Coluccio as required by the Amended Agreement.

26. The Court finds that D’Angelo’s conduct will not be 

imputed on DIG.

Trial Ct. Op., 12/26/14, at 14. Appellant is due no relief.

By way of background, “[t]he Latin phrase ‘in pari delicto potior est 

conditio defendentis,’ in pari delicto for short, refers to the common law 

maxim that ‘where the wrong of both parties is equal, the position of the 

defendant is the stronger.’” Bondi v. Citigroup, Inc., 32 A.3d 1158, 1174 

(N.J. Super. Ct. App. Div. 2011) (citations omitted). 

Under New Jersey law, the party invoking the defense 

must establish that the party against whom the defense is 

asserted must have substantially equal responsibility for 

the underlying illegality to permit dismissal of claims 

asserted by the aggrieved party.

An acknowledged exception to the imputation or in pari 

delicto doctrine is the adverse interest exception. Under 

this exception, the wrongs of an insider will not be imputed 

to the corporation, if the insider acted solely for his own 

benefit and adverse to the interest of the corporation.

Id. at 1174-75 (internal quotation marks and citations omitted); accord 

NCP Litig. Trust v. KPMG, 945 A.2d 132, 146 (N.J. Super. Ct. App. Div. 
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2007). In pari delicto is axiomatically an affirmative defense, which 

concedes liability but otherwise excuses a defendant’s actions. See 

generally Black’s Law Dictionary 482 (9th ed. 2009) (defining affirmative 

defense as “A defendant’s assertion of facts and arguments that, if true, will 

defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the 

complaint are true.”).

Instantly, we need not resolve whether the trial court properly invoked 

the affirmative defense for Appellees, as we have discerned no basis to 

reverse the trial court’s rulings regarding Appellant’s breach of contract 

claim. See generally Bondi, 32 A.3d at 1174-75. If the trial court had 

concluded that Appellees were liable for breach of contract, then Appellees 

could have invoked in pari delicto.

16

 See id. Regardless, assuming the trial 

court erred, Appellant has not explained how the error was so prejudicial as 

to warrant judgment notwithstanding the verdict, let alone a new trial. See 

Gurley, 113 A.3d at 288-89; Braun, 24 A.3d at 890-91; see also Yacoub 

v. Lehigh Valley Med. Assocs., 805 A.2d 579, 590-91 (Pa. Super. 2002) 

(en banc) (holding trial court erred by ruling plaintiff did not plead sufficient 

facts to establish ostensible agency theory of liability; error, however, was 

not prejudicial given record). Thus, even assuming trial court error, 

 

16 We need not identify the party against whom such a defense could be 

invoked or ascertain the likelihood of success.
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Appellant has waived the argument due to insufficient legal analysis. See 

Bunt, 666 A.2d at 1095.

Appellant’s last argument pertains to the trial court’s pretrial ruling 

denying his motion to compel discovery of Karp’s 2005 and 2006 tax 

returns—his twelfth issue. He notes, however, that the trial court, mid-trial, 

ordered Karp to produce the tax returns. Appellant contends that 

notwithstanding the mid-trial order to compel, the earlier ruling established 

an abuse of discretion and error of law. Appellant also contends that Karp 

refused to comply with the order and thus denied him a fair trial. We hold 

Appellant has waived entitlement to relief. In support of his seven-page 

argument, Appellant cites only to Pa.R.C.P. 4003.1(a), which addresses the 

scope of discovery. Appellant cites no authority establishing the trial court 

abused its discretion. Accordingly, he has waived this argument. See Bunt, 

666 A.2d at 1095. For these reasons, we affirm the judgment below.

Application to quash denied. Appellant’s “Petition re Trial Court’s 

1925(a) Opinion” denied. Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/24/2015