J-A28044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HEATH N. KAHRS AND MARCIE KAHRS, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
A.M. BRADY STUCCO & STONE, LLC
A/K/A AIDAN BRADY STUCCO & STONE
AND ENVIRONSPEC, LTD. AND MARK
LEZANIC AND SANDRA LEZANIC,
Appellees No. 984 EDA 2016
Appeal from the Judgment Entered May 10, 2016
in the Court of Common Pleas of Chester County
Civil Division at No.: 10322-C 13
BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED DECEMBER 12, 2016
Appellants, Heath and Marcie Kahrs, husband and wife, appeal from a
jury verdict in their favor in the amount of $166,010.00, which they consider
inadequate, and a bench trial judgment denying their assertion of violations
of the Unfair Trade Practices and Consumer Protection Law (UTPCPL).1 Their
complaint chiefly claimed various failures by A.M. Brady Stucco & Stone, LLC
a/k/a Aidan Brady Stucco & Stone (Brady), and Environspec, Ltd.
(Environspec) (Appellees), and Mark and Sandra Lezanic, to repair moisture
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*
Retired Senior Judge assigned to the Superior Court.
1
73 P.S. §§ 201-1 ─ 201-9.3.
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penetration and leakage behind the stucco exterior of their home.2 Besides
their common law claims, Appellants alleged breach of contract, negligence,
and deceptive practices in violation of the UTPCPL. We affirm.
We derive the pertinent facts of the case from the findings of the trial
court and our independent review of the certified record.
The ongoing course of conduct among the principals of this case is
prolonged and convoluted. Briefly summarized, a pre-sale inspection report,
(the Cogent report), identified water penetration behind the stucco of the
house Appellants wanted to buy. As part of the agreement of sale,
Appellants entered into a pre-sale arrangement with the Lezanics, the
sellers, for the remediation of the leakage. (See Decision Pursuant to
Pa.R.C.P. 1038, 2/02/16, at 2).
The Lezanics (not the Kahrs) engaged Brady to make the necessary
repairs, to be paid out of an escrow account from the proceeds of the sale of
the house. Brady expressly provided in the agreement that “you” (the
Lezanics) would be responsible for the removal and reinstallation of any
windows which needed to be removed to correct the water penetration.
Shortly before the sale was scheduled to close (on January 15, 2010),
the Kahrs sent Brady a letter regarding the completion of the remaining
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2
The trial court sustained preliminary objections in favor of Mr. and Mrs.
Lezanic, sellers of the home Appellants purchased. They are not parties to
this appeal.
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stucco services. (See Complaint, 1/27/14, Exhibit “D”, Letter to Aidan
Brady, 1/13/10). The letter specified ─ twice ─ that it was intended to serve
merely as a “clarification” of the original agreement. (Id. at 1)
(“Note─these services do not supersede the original scope of services.
They [sic] merely serve as additional clarification and understanding.”)
(emphasis added). The Kahrs signed the letter, as did Brady. (See id. at
3).
The Kahrs maintain that a major issue at the trial was whether the
windows needed to be removed, and who had responsibility for the removal.
(See Appellants’ Brief, at 35). One can reasonably infer from the totality of
the evidence that removal and reinstallation of windows was a critical
component of the remediation process. The Kahrs also maintain that it was
Brady’s and Environspec’s responsibility to determine if the windows needed
to be removed, and both failed to advise them (the Kahrs) of this
requirement. (See id.).
In any event, things proceeded without further serious incident from
the completion of the original services in 2010, until Hurricane Sandy hit in
2012, when water leaked into the basement, apparently from a kitchen
window. Appellants summoned Brady, who agreed to perform corrective
remedial work (at no additional cost to the Kahrs) under the warranty for the
original work. For a fee of $600.00 Mr. Kahrs also engaged Appellee
Environspec to perform five inspections of Brady’s work. Environspec found
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minor problems, which Brady addressed, but its final report indicated that
the stucco looked good and noted no major concerns. (See Decision
Pursuant to Pa.R.C.P. 1038, at 5; see also Opinion Pursuant to Rule 1925,
5/06/16, at 6).
However, before the work was completed, Mr. Kahrs ordered Brady
and his work crew off the premises and instructed him not to return. This
lawsuit followed.
The trial court bifurcated the proceedings into a bench trial on
Appellants’ UTPCPL claims and a jury trial on the other claims. The trial
court denied Appellants’ UTPCPL claims. The jury found a breach of contract
by Brady and awarded the Kahrs $166,010.00. This appeal followed the
denial of the Kahrs’ post-trial motions. Counsel for Appellants filed a non-
compliant statement of errors on April 19, 2016. See Pa.R.A.P.
1925(b)(4)(iv).3 The trial court filed an opinion pursuant to Pa.R.A.P.
1925(a) on May 6, 2016.4
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3
In disregard of the pertinent rule, counsel for Appellants provides a lengthy
explanation of each purported error asserted. (See Appellants’ Brief,
Appendix C, “Statement of the Matters [sic] Complained of on Appeal
Pursuant to Order of Court Dated March 29, 2016 and Pa.R.A.P. 1925(b),” at
1-11); see also Pa.R.A.P. 1925(b)(4)(iv) (“The Statement should not be
redundant or provide lengthy explanations as to any error.”).
4
Among other procedural lapses, counsel for Appellants omits a copy of the
trial court’s Rule 1925(a) opinion in their brief. See Pa.R.A.P. 2111(a)(10),
(b). Both Appellees included a copy of the opinion in their briefs.
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Appellants raise sixteen claims on appeal, framed as ten questions
and six over-lapping sub-questions:
1. Whether the [t]rial [c]ourt’s decision on the Kahrs’
UTPCPL claim was contrary to the weight of the evidence and the
[t]rial [c]ourt erred as a matter of law and/or abused its
discretion in reaching this decision?
2. Whether the [t]rial [c]ourt erred and/or abused its
discretion in failing to mold the verdict or grant additur with
respect to the undisputed evidence of contract damages?
3. Whether the [t]rial [c]ourt erred and/or abused its
discretion in failing to grant judgment notwithstanding the
verdict as to damages with respect to the undisputed evidence of
contract damages?
4. Whether the jury verdict as to liability and damages was
contrary to the weight of the evidence and the [t]rial [c]ourt
erred in failing to grant [Appellants’] motion for new trial?
5. Whether the [t]rial [c]ourt erred and/or abused its
discretion in failing to grant [Appellants] a new trial on the
following errors of law:
1.) the finding of deception was not submitted to the
jury and evidence related to deception was not permitted at
the jury trial;
2.) [Appellants] were prohibited from presenting their
negligence claim to the jury when Counts I and IV of the
Complaint remained in the case prior to [Appellee] Brady’s
Motion for Compulsory Nonsuit;
3.) the [t]rial [c]ourt erred in permitting witnesses to
testify about the Cogent [r]eport, which constitutes
impermissible hearsay;
4.) Daniel Honig should not have been admitted as an
expert as he had no experience in the field of stucco
remediation;
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5.) the [t]rial [c]ourt erred in not providing a copy of
[Appellants’] Exhibit 35 to the jury as requested; and
6.) the [t]rial [c]ourt erred in finding in favor of
[Appellees] on [Appellants’] UTPCPL claim?
6. Whether the [t]rial [c]ourt erred and/or abused its
discretion in not permitting evidence of deception to be
introduced at the jury trial and permitting the jury to make a
finding as to whether the [Appellees’] conduct was deceptive in
accordance with the [UTPCPL]?
7. Whether the [t]rial [c]ourt erred and/or abused its
discretion in prohibiting [Appellants’] from presenting their
negligence claim to the jury when Counts I and IV of the
Complaint remained in the case prior to [Appellee] Brady’s
Motion for Compulsory Nonsuit?
8. Whether the [t]rial [c]ourt erred and/or abused its
discretion in permitting witnesses to testify about the Cogent
[r]eport, which constitutes impermissible hearsay?
9. Whether the [t]rial [c]ourt erred and/or abused its
discretion in permitting Daniel Honig to be admitted as an expert
when he had no experience in the field of stucco remediation?
10. Whether the [t]rial [c]ourt erred and/or abused its
discretion when he [sic] refused to provide a copy of
[Appellants’] Exhibit 35 to the jury after it was specifically
requested by the jury?
(Appellants’ Brief, at 4-5) (sub-questions re-formatted).
Preliminarily, we are reminded of the observation by the
[late] Honorable Ruggero J. Aldisert, Senior Circuit Judge of the
United States Court of Appeals for the Third Circuit, that this
Court has previously cited in Kenis v. Perini Corp., 452 Pa.
Super. 634, 682 A.2d 845 (1996), as well as other cases:
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 it is an irrebuttable
presumption, but it is a presumption that reduces the
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effectiveness of appellate advocacy. Appellate advocacy is
measured by effectiveness, not loquaciousness.
Id. at 847 n.3 (citations omitted); see also Commonwealth v.
Snyder, 870 A.2d 336, 340 (Pa. Super. 2005) (“[T]he
effectiveness of appellate advocacy may suffer when counsel
raises numerous issues, to the point where a presumption arises
that there is no merit to any of them.”) (citations omitted).
J.J. DeLuca Co. Inc. v. Toll Naval Associates, 56 A.3d 402, 409–10 (Pa.
Super. 2012).
In this appeal, many of Appellants’ issues and arguments in the sixty-
three page brief overlap or simply duplicate each other by raising the same
issue, sometimes in a virtually identical form, sometimes in a slightly
alternative way. Also, the argument section of the brief reformats and re-
orders the questions, in virtually random sequence, inconsistently numbered
and lettered, without apparent distinction between questions and sub-
questions. (See Appellants’ Brief, at 11-62). In so doing, Appellants fail to
comply with Pennsylvania Rule of Appellate Procedure 2119:
(a) General rule. The argument shall be divided into as
many parts as there are questions to be argued; and shall
have at the head of each part-in distinctive type or in type
distinctively displayed-the particular point treated therein,
followed by such discussion and citation of authorities as are
deemed pertinent.
Pa.R.A.P. 2119(a) (some emphasis added).
We could find all of Appellants’ claims waived on this basis. But we
decline to do so, on grounds of judicial economy. Notably, in addition to the
briefs, oral argument has already occurred. Therefore, for clarity of analysis
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and to avoid unnecessary duplication and further confusion, when
appropriate we will address similar claims together.
We first address Appellants’ challenges to the weight of the evidence
for the trial court’s verdict on the UTPCPL claims, and the jury verdict. We
begin with our standard and scope of review in an appeal from a non-jury
verdict.
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
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.
We will respect a trial court’s findings with regard to the
credibility and weight of the evidence unless the appellant can
show that the court’s determination was manifestly erroneous,
arbitrary and capricious or flagrantly contrary to the evidence.
DeLuca, supra at 410 (citations and quotation marks omitted). Similarly,
Where, as here, the appellant asserts the weight of the
evidence as grounds for the award of a new trial, our review is
exceptionally limited:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence.
Because the trial judge has had the opportunity to hear
and see the evidence presented, an appellate court will
give the gravest consideration to the findings and reasons
advanced by the trial judge when reviewing a trial court’s
determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for
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granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
It is not the role of an appellate court to pass on the credibility
of witnesses; hence we will not substitute our judgment for that
of the factfinder. Thus, the test we apply is not whether we
would have reached the same result on the evidence presented,
but rather, after due consideration of the evidence which the
trial court found credible, whether the trial court could have
reasonably reached its conclusion.
Fazio v. Guardian Life Ins. Co. of Am., 62 A.3d 396, 413 (Pa. Super.
2012), appeal denied, 72 A.3d 604 (Pa. 2013) (citations and internal
quotation marks omitted; emphasis added).
Here, aside from the mere bald assertion that the verdicts shock the
conscience, Appellants, in a rambling, disconnected, and frequently opaque
presentation, simply fail to develop any persuasive argument that the
finders of fact could not have reached their respective conclusions on the
weight of the evidence presented. (See Appellants’ Brief, at 23, 30-31, 42,
45-46). At most, Appellants invites us to an impermissible re-weighing of
the evidence. We decline to do so.
Notably, while Appellants insist repeatedly that their evidence was
“undisputed,” Appellees maintain, and the trial court confirms, that
Appellants’ “damages were hotly contested.” (Order 3/1/16, n.1 at 2; Rule
1925(a) opinion, 5/06/16, at 18). We will not substitute our judgment for
that of the factfinders. We consider the evidence in the bench trial in a light
most favorable to the Appellees as verdict winners. The trial court could
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have reasonably reached its conclusion that the jury’s verdict was supported
by the evidence. All of Appellants’ weight claims fail.
Next, Appellants claim a right to a jury trial on their UTPCPL claims.
(See Appellants’ Brief, at 11-14). This Court has concluded that there is no
right to a jury trial for private causes of action under the UTPCPL. See
Fazio, supra:
Accordingly, we conclude that there is no right to a jury
trial for private causes of action under the UTPCPL. The statute
does not specifically enumerate that right. Moreover, based
upon the foregoing analysis, we find that the UTPCPL did not
merely codify common law claims of fraud. The UTPCPL created
a distinct cause of action for consumer protection. While a
plaintiff is required to prove elements of common law fraud to
support certain UTPCPL claims, he/or she would still have to
prove the elements of a consumer-based transaction or
relationship. Moreover, fraud and UTPCPL claims have different
statutes of limitations, which provides further support that such
claims are separate causes of action. In sum, the Fazios were
not entitled to a jury trial on their stand-alone UTPCPL claim;
hence, their first issue on appeal fails.
Id. at 411–12.
Appellants’ citation to caselaw preceding Fazio or to cases from other
jurisdictions ignores the doctrine of stare decisis. See Dixon v. GEICO,
1 A.3d 921, 925-26 (Pa. Super. 2010). Appellants’ assertion of a right to a
jury trial for their UTPCPL claims fails.
Next, we address Appellants’ challenge to the jury’s award of
damages. They maintain they are entitled to $302,286.00, instead of
$166,010.00. (See Appellants’ Brief, at 42). We disagree.
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Where an appellant’s claim arises from a challenge to the
jury’s determination of damages, our review is highly
circumspect:
The duty of assessing damages is within the province
of the jury and should not be interfered with by the court,
unless it clearly appears that the amount awarded resulted
from caprice, prejudice, partiality, corruption or some
other improper influence. In reviewing the award of
damages, the appellate courts should give deference to the
decisions of the trier of fact who is usually in a superior
position to appraise and weigh the evidence.
If the verdict bears a reasonable resemblance to the damages
proven, we will not upset it merely because we might have
awarded different damages.
Helpin v. Trustees of Univ. of Pennsylvania, 969 A.2d 601, 616 n.9 (Pa.
Super. 2009), affirmed, 10 A.3d 267 (Pa. 2010) (citations and internal
quotation marks omitted).
Here, as previously noted, Appellants’ claim that their evidence of
damages was undisputed is flatly contradicted by the trial court. We defer
to the trial court on findings of fact. The trial court notes that the jury’s
award of damages is nearly four times the original contract amount. (See
Rule 1925(a) opinion, at 6). There is no evidence that the jury acted out of
caprice, prejudice, partiality, corruption or some other improper influence.
We decline to disturb the jury’s award. Appellants’ claims to additional
damages fail.
Next, Appellants challenge the trial court’s denial of their request to
provide the jurors during deliberations with an exhibit (Exhibit 35) prepared
by their counsel, which purported to itemize their various claims to
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damages. (See Appellants’ Brief, at 48-52). Appellants maintain that the
trial court’s refusal constituted an error “as a matter of law.” (Id. at 51).
We disagree.
Pennsylvania Rule of Civil Procedure 223.1, Conduct of the Trial,
provides, in pertinent part, that “[t]he court may . . . make exhibits
available to the jury during its deliberations[.]” Pa.R.C.P. 223.1(d)(3)
(emphasis added). However, this Court has long held that “whether an
exhibit should be allowed to go out with the jury during deliberation is within
the discretion of the trial judge, and such decision will not be overturned
absent an abuse of discretion.” Commonwealth v. Manley, 985 A.2d 256,
273 (Pa. Super. 2009), appeal denied, 996 A.2d 491 (Pa. 2010) (citations
omitted).
In this case, the trial court notes that there were two versions of the
exhibit at issue, raising potential questions as to which version was more
accurate (or which should be provided to the jury). It is undisputed that
both versions contained one or more items now conceded to be beyond the
scope of permissible damages to be determined by the jury (e.g., premiums
for Appellants’ homeowner’s insurance).
Appellants cite some courts of other jurisdictions (whose decisions are
not binding on this Court), to the effect that they may have permitted
demonstrative exhibits during jury deliberations. This is of no moment for
our review. Appellants had the burden to prove that this trial court’s
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decision not to provide the compromised exhibits was an abuse of
discretion, or, as Appellants claim, an error “as a matter of law.”
(Appellants’ Brief, at 51, 52). They utterly fail to do so. Appellants’
challenge to the exclusion of Exhibit 35 from jury deliberations fails.
Appellants also object to various other evidentiary rulings by the trial
court, most notably testimony with reference to the Cogent report,5 and the
trial court’s acceptance of Daniel Honig as an expert witness for Brady.
The admission or exclusion of evidence is within the sound
discretion of the trial court, and in reviewing a challenge to the
admissibility of evidence, we will only reverse a ruling by the
trial court upon a showing that it abused its discretion or
committed an error of law. Thus our standard of review is very
narrow. To constitute reversible error, an evidentiary ruling
must not only be erroneous, but also harmful or prejudicial to
the complaining party.
Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012), appeal
denied, 62 A.3d 379 (Pa. 2013) (citation and ellipsis omitted).
Appellants quote extensively, albeit selectively, from the trial
transcript in support of their objections. (See Appellants’ Brief, at 15-23;
55-58). However, Appellants fail to develop an argument supported by
specific pertinent authority to meet their burden of proof that the trial court
abused its discretion or committed an error of law in any of its evidentiary
rulings.
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5
Appellants concede that the Cogent report was not entered into evidence.
Nevertheless, they maintain that references at trial “constitutes irreversible
[sic] error.” (Appellants’ Brief, at 23).
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On independent review we conclude that none of Appellants’ other
claims, whether appropriately or inappropriately developed, merit additur,
molding of the verdict, a new trial, or any other relief. In particular,
Appellants were not entitled to present evidence of their purported pain and
suffering at trial. As a practical matter, the gist of the action doctrine
precludes plaintiffs from re-casting ordinary breach of contract claims into
tort claims. See eToll, Inc. v. Elias/Savion Advert., Inc., 811 A.2d 10,
14–17 (Pa. Super. 2002). The trial court properly prevented Appellants from
doing so.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/12/2016
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