Denig, F. v. 501 Grandview, Inc.

J-A08002-14 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRED DENIG, JR., IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. 501 GRANDVIEW, INC., A PENNSYLVANIA CORPORATION, AND 501 GRANDVIEW ASSOCIATES, LP, A PENNSYLVANIA LIMITED PARTNERSHIP Appellants No. 1081 WDA 2013 Appeal from the Judgment Entered on June 6, 2013 In the Court of Common Pleas of Allegheny County Civil Division at No.: G.D. 09-21205 BEFORE: SHOGAN, J., OLSON, J., and WECHT, J. CONCURRING MEMORANDUM BY WECHT, J.: FILED AUGUST 22, 2014 award to Fred Denig, Jr., for superintendence services rendered. Furthermore, I join the ma majority, I would not deem waived the challenge of 501 Grandview, Inc. that award on the merits. I write separately to explain why. As noted by the majority, Grandview, in its questions presented, recover proportionately. Maj. Mem. at 3 (quoting Brief for Grandview at 3). It does not, however, set off a question identifying any challenge to the J-A08002-14 extra fees imposed by the trial court. On this basis alone, the majority deems any such issue waived. Maj. Mem. at 3 n.1. Pennsylvania Rule of Appellate Procedure 2101 calls for strict ... shall conform in all material respects with the requirements of these rules as nearly as the circumstances of the particular case will admit, otherwise they may be suppressed, and, if the defects are in the brief . . . and are substantial Pa.R.A.P. 2101. Rule 2116 provides as follows: The statement of the questions involved must state concisely the issues to be resolved, expressed in the terms and circumstances of the case but without unnecessary detail. The statement will be deemed to include every subsidiary question fairly comprised therein. No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby. Pa.R.A.P. 2116(a). It cannot be disputed that Grandview failed to satisfy this rule with n our precedent and that of our sister Commonwealth Court teaches that we may overlook violations of Rule 2116 when they do not impede our review in any material way See, e.g., Savoy v. Savoy, 641 A.2d 596, 598 (Pa. Super. ur -2- J-A08002-14 Wesleyville Borough v. Erie County Bd. of Assessment Appeals, 676 A.2d 298, 301 (Pa. Cmwlth. and addressed arguments [that] have been set forth in the argument portion Pa.R.A.P. see also Pa.R.A.P. shall be liberally construed to secure the just, speedy and inexpensive determ . . . of any of these rules . . . on its Commonwealth v. Wheaton, 598 A.2d 1017 (Pa. Super. 1991), this Court declined failure to satisfy Rule 2116, because the issue had been raised before the See id. at 1018 n.1. n its post- trial motions. Grandview then identified this same issue as grounds for appeal in its Rule 1925(b) concise statement of errors complained of on appeal, which is intended to apprise the trial court of its alleged error, enabling the trial court to provide this Court with a Rule 1925(a) opinion that effectively explains the reasons for the challenged ruling. See Jiricko v. Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super. ... allows the trial court to identify and focus on those issues the parties plan to not squarely address the challenged items as a discrete issue, that omission -3- J-A08002-14 statemen Complained of on Appeal at 1. Indeed, Grandview identified therein the charges that it deemed objectionable. Id. at 1-2 ¶2. Finally, Grandview briefed at length the appropriateness of imposing these charges in a See Brief for Grandview at 8-12.1 waiver for such an omission. The issue has been raised and argued at every stage of the proceedings, just as required by the applicable rules of procedure. Nonetheless, I would affirm. The invoice identifying the charges in question amounted to $8,710 of the $17,710 verdict awarded to Denig, and were allocated as follows: Bidding/Negotation $6,000 Drawings for possible adjacent Garage FD 12 hrs @ $100/hr $1,200 ____________________________________________ 1 regard to the challenged items, asserting only that the omission of that issue of appeal. See Brief for Denig at 5. Inasmuch as this Court has the power to overlook waiver, and has done so many times in analogous situations, -4- J-A08002-14 Drawings for changed Penthouse and single unit on third through fifth floors FD 5 hours @ $100/hr $500 FD 8 hours @ $70/hr $560 Drawings for additional front door FD 4.5 hours @ $100/hr $450 Trial Exhibit 30. Grandview does not contest the recoverability of $6,000 for bidding/negotiation or $1,200 for the garage drawings. See Brief for Grandview at 10 lien proceeding of the balance of the charges specified in the invoice, concerning drawings for the penthouse and another unit, as well as for an additional front door, charges that add up to $1,510. Id.2 Id. Citing Bennett v. Frederick R. Gerry Co., 117 A. 345 (Pa. 1922), Grandview asserts correctly, if inartful architect cannot bundle a claim for services for which he has no right to file Grandview at 10; see Bennett, 117 A. at 346. Grandview acknowledges that, when an architect has supervisory responsibilities over a job, he may ____________________________________________ 2 The law is clear that what cannot be proceeding may be sought in a contract claim, see Hoekstra v. Hoekstra, 87 Pa. Super. 15, 18 (Pa. Super. 1925), and such a parallel proceeding evidently was commenced in connection with this dispute. -5- J-A08002-14 that job. See 49 P.S. § utilizing . . . who, by contract with the owner, express or implied, in addition to the preparation of drawings, specifications and contract documents also superintends or supervises any such erection, cf. Hoekstra v. Hoekstra, 87 Pa. Super. 15, 18 (Pa. Super. and drawings in this proceeding only because of the fact that they are incidental to and enhance his work of superintending and supervising the actual construction . . . Denig had specified supervisory responsibilities, the absence of any obligation to continue in a supervisory capacity with respect to those items precluded recovery of those charges in the instant action. While Grandview is correct regarding the overarching proposition that work outside the scope of a construction contract, express or implied, is not that the work in question herein was severable from the rest of this large disputed supervisory role over the bulk of the project in question. Grandview cites scant evidence to that effect in its argument and cites only distinguishable case law. Our law is not so monolithic as to preclude recovery for items added after the -6- J-A08002-14 commencement of a construction project that it is sufficient merely to cite a general proposition of law and be done with it. In B.N. Excavating, Inc., v. PBC Hollow-A, L.P. , 71 A.3d 274 (Pa. Super. 2013), this Court reaffirmed that the core proposition at work in connected Id. at 282 (emphasis in original). Because the degree to which the work at issue in presented a question of fact, that determination belonged to the fact-finder, objections. Id. et in this case, to spend as much time educating this Court as to why the items in question were construction project as it spends educating this Court on the legal framework against which the assessment is to be made. However, it has failed to establish any reason the fact-finder was not free to conclude that the items in question were, in fact, connected to the larger job, which, like any large construction job, was dynamic in its scope and its particulars as it progressed, or that Denig had no supervisory role with respect to those -7- J-A08002-14 items. Accordingly, I would find that this argument is unavailing on its 3 For the foregoing reasons, I concur fully in the result reached by the the merits. ____________________________________________ 3 Grandview also contends that it paid $450 for the cost associated with allegedly unrebutted testimony of Daniele Dipardo, a partner in Grandview, that Denig was paid for this charge. Brief for Grandview at 12 (citing Notes of Testimony, 3/8/2013, at 170-71). While DiPardo did so testify, the well-established proposition that the jury may reject even unrebutted testimony. See Burke v. Kennedy, 133 A. 508, 510 (Pa. be said, as a matter of law, that the [fact-finder] is bound to accept evidence as true, although not contradicted by direct evidence. . . . A witness, though unimpeached, may have such an interest in the question at omitted)); see also Michultka v. Grapin, 340 A.2d 576, 579 (Pa. Super. -called rule that one is bound by the testimony of his witness, unless the witness is impeached or his testimony contradicted, today has little currency despite the fact that it is frequently established precedent, it was incumbent on Grandview to present legal argument in support of its claim. See Pa.R.A.P. 2119(a). Grandview having failed to do so, I would find that this particular argument is waived. -8-