Ty-Button Tie, Inc. v. Kincel and Co., Ltd.

• Decision Date: 02 December 2002
• Citation: 814 A.2d 685
• Parties: TY-BUTTON TIE, INC., Appellant, v. KINCEL AND CO., LTD., and Joseph Marrongelle, Appellees.
• Court: Pennsylvania Superior Court

814 A.2d 685

TY-BUTTON TIE, INC., Appellant, v. KINCEL AND CO., LTD., and Joseph Marrongelle, Appellees.

Superior Court of Pennsylvania.

Argued September 11, 2002.

Filed December 2, 2002.

Reargument Denied February 5, 2003.

Donald A. Semisch, Willow Grove, for appellant.

Paul A. Barrett, Scranton, for appellees.

Before: McEWEN, P.J.E., FORD ELLIOTT and POPOVICH, JJ.

POPOVICH, J.

¶ 1 Appellant Ty-Button Tie, Inc. appeals from the judgment entered on January 2, 2002, in the Court of Common Pleas of Bucks County, following the trial court's denial of Appellant's Post-Trial Motion for Judgment Non Obstante Verdicto or for a New Trial. Upon review, we affirm the judgment.

¶ 2 The facts and procedural history of this case are as follows: Mr. Vincent Pileggi, a landscaper by trade, and his wife, a seamstress, designed a tie that would stay affixed to the wearer's shirt, entitled the "Ty-Button" tie. Mr. Pileggi took his design to a patent attorney, who submitted the design for two United States patents on the invention. Mr. Pileggi marketed his "patent-pending" product to manufacturers, two of whom produced the ties. Thereafter, Mr. Pileggi formed Appellant corporation, Ty-Button Tie, Inc.

¶ 3 After Mr. Pileggi formed Appellant corporation, a family member of Mr. Pileggi's gave a sample tie to an associate who sold jewelry on QVC Network, a home shopping network on television. The tie impressed the associate enough that she arranged for Mr. Pileggi to meet with QVC. QVC also was impressed and decided to devote a short segment of its programming to market Appellant's tie on a probationary basis. On October 6, 1991, QVC aired Appellant's segment to an enthusiastic viewer response. The available ties immediately sold out, prompting QVC to take on Appellant's ties as a permanent product on its merchandising schedule. Accordingly, Mr. Pileggi contacted Appellee Kincel and Co., Ltd. Insurance agency, to advise it that he might need to update his coverage from what he then possessed for his landscaping business.

¶ 4 In January of 1992, QVC presented Appellant with a "purchase order" form, whereby QVC agreed to purchase nearly four thousand ties of varying styles at a total value of fifty-five thousand, nine hundred forty-four dollars ($55,944.00). The purchase order was subject to conditions on the reverse side of the form, which listed the vendor's obligations including the requirement that the vendor indemnify QVC from certain claims related to the promotion of the product.

¶ 5 Mr. Pileggi met with Appellee Joseph Marrongelle, a representative of Appellee Kincel with whom Pileggi met in October, to discuss insurance. Mr. Pileggi purchased a "Commercial General Liability Policy" underwritten by Aetna Casualty and Surety Company of Illinois ("Aetna"), effective January 15, 1992. Mr. Pileggi never read the policy nor did he read the renewal of the policy in January of 1993. At the time of the policy's renewal, Rosemary Pileggi, Appellant's agent, contacted Appellee Marrongelle and requested "vendor's liability" coverage for QVC on Appellant's existing policy.¹

¶ 6 For the next year, Appellant's ties sold well on QVC. However, in January of 1993, Mr. Pileggi received a letter from an Attorney Iman Abdallah, who claimed that Mr. Pileggi infringed on his necktie patent. Mr. Pileggi settled with Attorney Abdallah rather than be forced to defend against a future claim that could derail the ongoing success that Ty-Button ties had brought him on QVC. So, Appellant purchased for forty-five thousand dollars ($45,000.00) a license from Attorney Abdallah that would allow Ty-Button to continue promoting its tie on QVC despite Attorney Abdallah's patent.

¶ 7 Nevertheless, Attorney Abdallah commenced suit in federal district court against QVC, Mr. Pileggi, and Appellant following a May, 1993 QVC show that introduced Mr. Pileggi as the inventor of the device used in Appellant's tie. By purchasing a license from Attorney Abdallah, the complaint alleged, Mr. Pileggi admitted that Attorney Abdallah had invented and patented the device used in Appellant's tie, and he could not, therefore, represent himself as the inventor.

¶ 8 Mr. Pileggi contacted Appellees to confirm that Appellant's insurance policy would cover against the claim. Mr. Pileggi eventually learned from Aetna that Appellant's policy contained no such coverage. Thus exposed to Attorney Abdallah's suit in contravention of the purchase order's indemnification clause, QVC ceased all purchases and marketing of Ty-Button's ties.

¶ 9 Appellant subsequently filed the present action against Aetna for coverage under the policy and against Appellees for damages resulting from their failure to procure sufficient coverage. Before trial against Aetna began, Mr. Pileggi signed an agreement presented to Appellant by Aetna, whereby Appellant would drop its action against Aetna in exchange for Aetna's promise to defend Appellant and Mr. Pileggi and indemnify QVC from Attorney Abdallah's lawsuit and any suit stemming therefrom. The release excluded Appellant's suit against Appellees from the scope of the liability discharge, and so the within case against Appellees continued.

¶ 10 The case then proceeded to trial. At the conclusion of Appellant's evidence, Appellees moved for the entry of a compulsory nonsuit. The trial court gave two reasons for its order granting Appellee's motion. First, the trial court found that Mr. Pileggi's failure to read the Aetna policy in order to verify that it contained the coverage he allegedly requested amounted to contributory negligence, barring him from recovering on his negligence-based claim.

¶ 11 The second reason for nonsuit was the release agreement between Appellant and Aetna Insurance. The trial court opined that the released inured to Appellee's benefit as they were agents of Aetna, and that the release, in any event, provided Appellant with the coverage it allegedly asked Appellees to procure originally. The trial court thus concluded that the within suit could afford Appellant no further remedy beyond that already provided in the release agreement. ¶ 12 Following the grant of nonsuit on behalf of Appellees, Appellant appealed to this Court. We reversed, holding that the grant of nonsuit was in error. We found that the grant of nonsuit was in error because Appellant produced sufficient evidence to allow for reasonable disagreement regarding the question of whether Appellant received a policy different from the type of policy it requested.

¶ 13 Following remand, the jury entered a verdict on behalf of Appellees on August 21, 2001. Appellant filed a timely Post-Trial Motion for Judgment Non Obstante Verdicto (JNOV) or New Trial on August 31, 2001. The trial court denied the Post-Trial Motion on January 9, 2002. Appellant filed a timely Notice of Appeal to this Court on January 15, 2002. The trial court did not order Appellant to file a Pa.R.A.P.1925(b) Statement, but it nevertheless authored an Opinion in this case.

¶ 14 Appellant presents the following issues for our review:

(1) Whether the [trial court] erred in failing to rule as a matter of law that the [Appellees] did not provide the insurance coverage requested.

(2) Whether the [trial court] erred in failing to rule as a matter of law that the insurance coverage obtained by [Appellees] did not cover QVC despite [Appellees'] repeated assertions they obtained coverage for QVC for false advertising.

(3) Whether the [trial court] erred in failing to rule that Exhibit P-9, the endorsement to the policy, did not cover QVC for false advertising despite [Appellees'] agreement to provide such coverage and assertions under oath that it did cover QVC for false advertising.

(4) Whether the [trial court] erred in failing to grant a new trial.

Appellant's brief at 4.²

¶ 15 At the outset, we note that Appellant's Post-Trial Motion contends that he was entitled to JNOV. Before we reach the merits of this claim, we must determine whether it is properly before this Court. See Snyder v. Cress, 791 A.2d 1198, 1200 (Pa.Super.2002) (appellate courts may raise issue of jurisdiction sua sponte).

¶ 16 Pennsylvania Rule of Civil Procedure 227.1(b)(1), relating to Post-Trial Relief, requires:

Post-trial relief may not be granted unless the grounds therefor,

(1) If then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial[.]

¶ 17 In his Motion for Post-Trial Relief, Appellant contends that it "... has preserved [the issue of JNOV] by its requested charge of a directed verdict." Appellant's Motion for Post-Trial Relief at ¶ 32. The record belies this contention. After a thorough analysis of the record, we are unable to find any motion, objection, point of charge or other pleading, save the Motion for Post-Trial Relief, which raises the issue of JNOV for the first time. Accordingly, the issue is technically waived. See Pa.R.Civ.P. 227.1(b)(1); see also Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 260, 322 A.2d 114, 117 (1974) (holding that in order to preserve an issue for review, trial counsel is required to make a timely, specific objection during trial). Nevertheless, we will address the issue on its merits because the trial court took the opportunity to address any error it may have made by its review of Appellant's Post-Trial Motions. See Soderberg v. Weisel, 455 Pa.Super. 158, 687 A.2d 839, 845 (1997) (holding that Superior Court will not preclude presentation of issue for failure to comply strictly with Pa.R.Civ.P. 227.1(b) when trial court had an opportunity to correct error by addressing Post-Trial Motions and chose to address them).

¶ 18 We enunciated our standard of review from the denial of a Motion for JNOV in Goldberg v. Isdaner, 780 A.2d 654 (Pa.Super.2001), as follows:

In reviewing a trial court's decision whether or not to

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