J-A11029-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DEBORAH R. HARGY, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DOM BUCCI, INDIVIDUALLY AND AS 

AGENT FOR CENTURY 21 CREST REAL 

ESTATE, LTD. AND CENTURY 21 CREST 

REAL ESTATE, LTD.,

Appellees No. 3044 EDA 2014

Appeal from the Order Entered October 17, 2014

In the Court of Common Pleas of Delaware County

Civil Division at No(s): No. 13-2106.

BEFORE: FORD ELLIOTT, P.J.E, OLSON AND WECHT, JJ.

MEMORANDUM BY OLSON, J.: FILED JULY 14, 2015

Appellant, Deborah R. Hargy, appeals from the order granting 

Appellees’ motion for summary judgment entered on October 17, 2014. We 

affirm. 

The trial court accurately summarized the factual background of this 

case as follows: 

Appellant entered into a residential agreement of sale on or 

about March 22, 2007 with [Dom Bucci and Century 21 Crest 

Real Estate, Ltd. (collectively “Bucci”)] acting as a dual-agent for 

Appellant and the seller of the property. Appellant alleges that 

on July 27, 2007, Bucci caused a [s]ettlement [n]otice to be 

issued to Appellant with less than the required ten [] day notice 

and then, on July 29, 2007, informed her that the scheduled 

August 1, 2007 settlement was canceled. According to 

Appellant, she relied on [Bucci’s] representation in not attending 

the settlement that did in fact take place on August 1, 2007. 
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Appellant alleges further that on September 12, 2007 the seller 

informed her that [Bucci] represented that Appellant never made 

any mortgage applications, did not intend to make any mortgage 

applications, would not proceed to settlement[,] and had not 

provided a legally cognizable reason for not proceeding to 

settlement.

On May 8, 2008, the seller sued Appellant for breach of contract 

for not attending settlement, not applying for a mortgage[,] and 

not securing approval for a mortgage loan. A verdict was 

entered against Appellant on or about March 15, 2011 finding 

her in material breach of the agreement of sale and awarding 

the seller damages, including Appellant’s deposit in the amount 

of [$10,000.00]. Subsequently, on or about July 13, 2012, an 

[o]rder was [entered] awarding the seller attorney[‘s] fees based 

upon findings that, inter alia, Appellant and her counsel 

exhibited dilatory, obdurate, vexatious[,] and bad faith conduct, 

that Appellant voluntarily undertook to absent herself from the 

scheduled settlement on August 1, 2007 because she selfadmittedly deemed the settlement notice invalid, and that 

Appellant failed to timely submit the name of the requisite 

mortgage lender to [Bucci].1

Trial Court Opinion, 12/17/14, at 1-2 (internal quotation marks, alteration, 

and citations omitted). 

The trial court accurately summarized the procedural history of this 

case as follows:

On March 11, 2013, Appellant filed suit against [Bucci] with 

claims for deceit, professional malpractice, intentional 

interference with a contractual relationship or business relations, 

breach of fiduciary duty to principal[,] and fraud. Appellant’s 

deceit claim is based upon [Bucci’s] alleged false representation 

on July 27, 2007 that the August 1, 2007 settlement was 

canceled. Appellant’s claim for professional malpractice is 

 

1 This Court dismissed Appellant’s appeal from the judgment entered in the 

breach of contract case brought by the seller against Appellant, and affirmed 

the order granting attorney’s fees. Hargy v. J & V Developers, 1027 EDA 

2011 (Pa. Super. May 23, 2011) (per curiam); J & V Developers v. Hargy, 

87 A.3d 890 (Pa. Super. 2013) (unpublished memorandum).
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related to [Bucci’s] alleged failure to give the seller Appellant’s 

mortgage applications, failure to use a [n]otice of [t]ermination 

of [a]greement of [s]ale/[a]greement of [s]ale [r]elease and 

[d]istribution of [d]eposit [m]oney form, breach of duty of 

loyalty, breach of fiduciary duty and/or exaggeration, 

misrepresentation[,] or concealment of pertinent facts. The 

claim that [Bucci] intentionally interfered with a contractual 

relationship or business relations is based upon [Bucci’s] alleged 

false representation that the August 1, 2007 settlement was 

canceled, failure to provide the seller with Appellant’s mortgage 

applications, false representation to seller that [Appellant] no 

longer wanted to purchase the property, false representation to 

seller that it was free to put the subject property back on the 

market, [and] false representation to Appellant that the 

agreement of sale was still in force after August 1, 2007. . . . 

Appellant’s claim that [Bucci] breached their fiduciary duty to a 

principal relates to [Bucci’s] alleged adverse actions, bad faith 

conduct[,] and conduct inconsistent with their agency to 

Appellant, including representing that the August 1, 2007 

settlement was canceled and testifying that Appellant was not 

told the settlement was canceled. Appellant’s final claim, fraud, 

is based upon [Bucci’s] alleged misrepresentation that the 

August 1, 2007 settlement was canceled.

Following preliminary objections, Appellant filed an [a]mended 

[c]omplaint on June 10, 2013. [Bucci’s] subsequent preliminary 

objections, filed on July 2, 2013, were overruled by [o]rder 

dated September [4], 2013. Bucci filed an [a]nswer and [n]ew 

[m]atter on September 24, 2013 claiming, inter alia, that 

Appellant’s claims are barred by the applicable statute of 

limitations and the doctrines of res judicata and collateral 

estoppel. A [m]otion for [m]ediation was filed by Appellant[] on 

November 20, 2013 and on December 9, 2013 the parties 

entered into a [s]tipulation to attend mediation pursuant to 

Delaware County Rule of Civil Procedure 1042.21, which was 

approved by [o]rder on February 10, 2014. On June 17, 2014, 

the parties attended mediation, but were not able to settle the 

matter. That same day, [Bucci] filed their motion for summary 

judgment. Appellant filed a [r]eply [m]emorandum to [Bucci’s] 

[s]ummary [j]udgment [motion] on July 14, 2014. . . . 

On August 13, 2014, Appellant filed a [p]raecipe to [l]ist [Bucci’s 

s]ummary [j]udgment [m]otion for [o]ral [a]rgument stating 

that a second mediation was scheduled for September 15, 2014 
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and that both parties were seeking oral argument on [Bucci’s 

m]otion for [s]ummary [j]udgment on or after October 1, 2014. 

Pursuant to that [p]raecipe, [argument] was held on [Bucci’s 

m]otion for [s]ummary [j]udgment on October 2, 2014 and, 

thereafter, the October 1[7], 2014 Order was entered granting 

summary judgment in [Bucci’s] favor. 

Trial Court Opinion, 12/17/14, at 3-4 (internal citations omitted). This 

timely appeal followed.2

Appellant presents two issues for our review:

1. Was it error of law, error of fact[,] and/or abuse of discretion 

for the [trial court] to conclude [A]ppellant could have 

produced an expert report in violation of the parties’ 

mediation agreement (pursuant to Local Rule 1042.21), 

and/or in violation of Pa.R.C.P. 1035.3, without the leave of 

court (pursuant to Pa.R.C.P. 1035.3) [A]ppellant requested?

2. Was such error of law, error of fact[,] and/or abuse of 

discretion harmless error?

Appellant’s Brief at 4.

In her first issue on appeal, Appellant contends that the trial court 

erred by concluding that she could have filed an expert report prior to the 

trial court entering summary judgment. This question requires us to 

interpret various rules of court and the parties’ agreement to attend 

 

2 On November 12, 2014, Appellant filed a concise statement of errors 

complained of on appeal without being ordered to do so by the trial court. 

On December 19, 2014, the trial court issued its Rule 1925(a) opinion. Both 

issues raised on appeal were included in Appellant’s concise statement. 

Nonetheless, we note that Appellant’s concise statement “fails in most 

respects to comply with the requirements of the Rule, including, most 

notably, that it is not concise.” PHH Mortg. Corp. v. Powell, 100 A.3d 

611, 614 (Pa. Super. 2014). The trial court, however, did not find that 

Appellant acted in bad faith. We therefore cannot find all issues waived. 

See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417, 420-

421 (Pa. 2007). 
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mediation. As such, our standard of review is de novo and our scope of 

review is plenary. Roth v. Ross, 85 A.3d 590, 592 (Pa. Super. 2014) 

(citation omits) (interpretation of rules of civil procedure is a question of 

law); cf. Mazurek v. Russell, 96 A.3d 372, 378 (Pa. Super. 2014) (contract 

interpretation is a question of law). 

Appellant contends that she was unable to file an expert report prior to 

the trial court’s entry of summary judgment because of a confluence of 

events. First, she argues that the mediation agreement entered into 

between her and Bucci prohibited her from filing the expert report while 

mediation was ongoing. She then argues that after mediation failed, she 

was prohibited from filing an expert report pursuant to Pennsylvania Rule of 

Civil Procedure 1035.3. She concludes that if she had been able to file an 

expert report, she would have been able to raise a genuine question of 

material fact as to the statute of limitations defense advanced by Bucci. 

In her response to Bucci’s motion for summary judgment, Appellant 

included an affidavit in which she averred that it was necessary to file an 

expert report to raise a genuine issue of material fact. To explain the 

absence of an expert report, Appellant attached a letter that Bucci’s counsel 

submitted to the trial court. Appellant argued that the letter evidenced an 

agreement between her and Bucci not to file expert reports. The relevant 

portion of Bucci’s counsel’s letter reads as follows:

As the parties agreed to pursue mediation, substantive discovery 

and depositions have not been conducted in an effort to save 
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costs and focus the attention of the parties on a possible 

resolution. Based on the foregoing, it is respectfully requested 

by the parties that the [trial c]ourt vacate the March 17, 2014, 

[t]rial [a]ssignment and [c]ase [m]anagement [o]rder during the 

pendency of the mediation process.

Appellant’s Reply Memorandum to Defendants’ Summary Judgment Motion, 

7/14/14, Exhibit A. 

It is evident from the plain language of this letter that the parties 

never agreed to halt production of expert reports. Although the parties 

decided not to engage in depositions, interrogatories, or document requests, 

they did not agree to forego the production of expert reports. Bucci’s filing 

of the motion for summary judgment should have clarified any 

misconstruction on the part of Appellant. Furthermore, Appellant does not 

point to any other place in the record that evidences a broader agreement. 

As such, any argument that the agreement between Appellant and Bucci was 

broader is waived. See Pa.R.A.P. 2117, 2119. 

As the parties’ agreement did not prohibit the filing of expert reports, 

Appellant was free to supplement the record with an expert report within 30 

days of Bucci’s motion for summary judgment. See Pa.R.C.P. 1035.3.3 She 

chose, however, not to supplement the record with an expert report. We 

conclude that the trial court correctly held that Appellant was able to file an 

expert report within 30 days of Bucci’s motion for summary judgment; 

 

3 Appellant nowhere asserts that additional discovery was necessary for the 

production of an expert report. Hence, Appellant cannot complain that the 

parties’ agreement to proceed with mediation hindered her acquisition of an 

expert opinion. 
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however, she failed to do so. Therefore, the trial court correctly granted 

Bucci’s motion for summary judgment once Appellant failed to raise a 

genuine issue of material fact.4

Order affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/14/2015

 

4

Furthermore, even if we concluded the trial court erred by ruling on the 

motion for summary judgment without Appellant filing an expert report, 

such error was harmless. As this Court noted, Appellant became aware of 

Bucci’s alleged malpractice (and related misconduct) in 2007. See J & V 

Developers v. Hargy, 87 A.3d 890 (Pa. Super. 2013) (unpublished 

memorandum), at 11-12 (citation omitted). Nonetheless, Appellant failed to 

file suit until 2013, well after the statute of limitations had expired. No 

expert report could cure this deficiency. Likewise, Appellant’s argument that 

she could not have expected the verdict in the previous case is without 

merit. As this Court has noted, her arguments in the prior litigation were 

“frivolous.” Id. at 10, 26 (citation omitted).