J-S04003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HILLYARD’S LANDSCAPING, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
NICHOLAS CEMPROLA,
Appellant No. 1158 MDA 2014
Appeal from the Judgment Entered August 8, 2014
In the Court of Common Pleas of Union County
Civil Division at No(s): CV-11-0442
BEFORE: BOWES, ALLEN, and STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED JANUARY 28, 2015
Nicholas Cemprola appeals from the judgment entered on a nonjury
verdict in favor of Hillyard’s Landscaping. We affirm.
On June 30, 2011, Appellee instituted this breach of contract action
against Appellant averring that Appellant had not paid the sum of $3,366.00
due and owing after it performed stone and landscaping work at Appellant’s
residence located at 1072 Hardscrabble Lane, Lewisburg, Union County.
Appellant filed an answer and counterclaim asserting that Appellee
performed the stonework and landscaping in an unworkmanlike manner and
that he incurred damages due to the substandard work. The case proceeded
to an arbitration board, which found in favor of Appellee. Appellant
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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appealed, and the case proceeded to a nonjury trial on April 25, 2014.
Appellee again prevailed and was awarded the unpaid amount due for the
stonework and landscaping, which amounted to $3,366.00, plus interest of
$2,019.60 for a total verdict of $5,385.60. The trial court found against
Appellant on his counterclaim.
The trial court indicated that its verdict was premised upon the
following facts. In 2010, Appellee provided a series of proposals for stone
and landscaping work at Appellant’s house. The work consisted of the
installation of stone stairs, sidewalk, and patio. The parties agreed on the
scope of the work and a $17,565 price as outlined in a November 5, 2010
proposal. Prior to the onset of winter, Appellee completed the work required
by the November 5, 2010 contract. At trial, Appellee submitted photographs
of the completed work. Appellee invoiced Appellant for $17,565.00, and
Appellant paid $14,199.00 of the outstanding amount. Appellant refused to
remit the remaining $3,366.00. The contract provided for monthly interest
of 1.5%.
When it performed the work, Appellee explained to Appellant that
some settling of the stonework could occur during the freeze and thaw
cycles that occur in winter. Appellee advised Appellant that it would return
in the spring to repair any stones that settled following installation. The
following spring, Appellant refused to allow Appellee to return to the
property to remedy some settling problems that arose after the winter of
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2010-2011. Appellee failed to hire any third parties to fix the settled
stonework and did not expend any sums of money to repair any work
performed by Appellee. In 2013, Appellant sold the property where the
work was performed.
The trial court concluded that Appellee completed the stonework in a
good and workmanlike manner, that Appellant had refused to allow Appellee
to fix the settling of stonework depicted in photographs submitted by
Appellant, and that Appellant suffered no damages from any purported
problems with the stonework. The trial court entered a judgment in favor of
Appellee on the complaint and against Appellant on his counterclaim. This
appeal followed denial of Appellant’s motion for post-trial relief. He raises
the following issues for our review:
1. Did the Trial Court err in determining that Appellant
performed its job in a good, workmanlike manner when Appellee
provided testimonial and photographic evidence otherwise?
2. Did the Trial Court err in determining that Appellant refused to
let Appellee come back to the subject property, when the
evidence showed that Appellant was open to a return but
Appellee instead filed suit?
3. Did the Trial Court err in determining that Appellant suffered
no damages, when Appellant, during cross examination by
Appellee, specifically noted damages he incurred during the sale
of the subject property?
Appellant’s brief at 5.
Initially, we outline our applicable standard of review of a nonjury
trial:
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Our appellate role in cases arising from nonjury 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 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. However, where the issue concerns a
question of law, our scope of review is plenary.
Allegheny Energy Supply Co., LLC v. Wolf Run Min. Co., 53 A.3d 53, 60
-61 (Pa.Super. 2012) (citation omitted). It is a well-ensconced principle of
law that, “The factfinder is free to believe all, part, or none of the evidence
and to determine the credibility of the witnesses.” Haan v. Wells, 103 A.3d
60, 70 (Pa.Super. 2014) (citation omitted).
Appellant first avers that the trial court erred in determining that
Appellee performed its work properly since Appellant offered “testimonial
and photographic evidence otherwise.” Appellant’s brief at 8. Hence,
Appellant asks that we accept his proof, which was contrary to that offered
by Appellee. In accordance with the above-recited standard of review,
Appellant’s request must be rejected. Appellee presented photographs of its
work immediately after it was performed. All the stones in the extensive
stairs, sidewalk, and patio were level and the work displayed in the
photographs was not defective. Appellee also presented testimony that it
informed Appellant that settling of the stonework could occur during winter’s
freeze and thaw cycles and that it would return to remedy any issues with
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the stone work. The trial court’s verdict that Appellee’s work was
satisfactory is firmly supported by the evidence presented by Appellee and
cannot be disturbed on appeal.
Appellant’s final two claims can be condensed. Appellant mantains
that the trial court erred in rejecting Appellant’s testimony that he offered
Appellee the opportunity to return and remedy the problems with settling as
well as his uncontested testimony that he sold the property for a diminished
value due to the purportedly substandard stonework. We must reject these
positions.
As noted above, the trial court was free to accept Appellee’s proof
regarding its lack of opportunity to correct the few instances of settling
depicted in Appellant’s photographs. Danny Hillyard, Appellee’s owner, told
the court that he was barred from returning to Appellant’s property to repair
the damage to the stonework caused by the 2010-2011 winter freeze/thaw
cycles. Furthermore, the trial court was not required to accept Appellant’s
testimony that he sold his house for less money due to the stonework. It is
irrelevant that Appellant’s testimony was not contradicted. The trial court
was free to determine that Appellant was not credible and to reject all of the
proof that he presented. Appellant admittedly sold the house three years
after Appellee performed its work and, in the interim, failed to hire anyone
to fix any of the stonework that settled after it was installed.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/28/2015
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