J. A30035/17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
OVERSEERS, LLC, A PENNSYLVANIA : IN THE SUPERIOR COURT OF
LIMITED LIABILITY COMPANY : PENNSYLVANIA
:
v. :
:
WALTER ADKINS, III, :
:
Appellant :
:
------------------------------------------- :
:
WALTER ADKINS, III, :
:
Appellant :
:
v. :
: No. 654 WDA 2017
OVERSEERS, LLC, A PENNSYLVANIA :
LIMITED LIABILITY COMPANY :
Appeal from the Judgment Entered April 17, 2017,
in the Court of Common Pleas of Allegheny County
Civil Division at No. GD-15-018939
BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 24, 2018
Appellant, Walter Adkins, III, appeals from the judgment entered
April 17, 2017 by the Court of Common Pleas of Allegheny County. Judgment
was entered on two separate cases involving these parties that were
consolidated on March 1, 2016. After careful review, we affirm.
The trial court provided the following recitation of the facts and
procedural history of this case:
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On or about March 21, 2013, [appellant’s] property
located at 476 1st Street in Heidelberg, Pennsylvania
was severely damaged by fire. [Appellant]
maintained property insurance with State Farm and
Casualty Company (hereinafter “State Farm”) with the
face amount of said policy as $300,000. Based on
State Farm’s recommendation, [appellant] originally
engaged Disaster Restoration Services (“DRS”) to
rebuild the structure. Fairly early, during salvage and
demolition on the restoration project, [appellant]
discharged DRS (on or about May of 2013). DRS
received $60,000, mostly for demolition work, leaving
$240,000 for completion of the project out of the
remaining insurance money.[Footnote 1]
[Footnote 1] Additional monies were later
made available to [appellant] by way of a
rider attached to the State Farm insurance
policy.
Based on the recommendation of Jason Adkins, the
son of [appellant], Joseph Lilley was contacted and
eventually retained by [appellant]. At said time,
Joseph Lilley was operating and doing business as
Overseers, LLC [(“appellee”)]. [Appellant] and
[appellee] contracted to rebuild the structure for a
price of $369,542.50.
Other than an initial payment of $71,289.96, which
was paid prior to commencement of work by
[appellee], the contract was silent as to a payment
schedule as to the remaining installments. Over the
course of construction, the scope of the project grew
but was not reflected by way of additional contracts
or change orders. The parties’ additional agreements
were never memorialized. At the completion of the
project, [appellee] claimed a payment deficiency of
$102,610, while [appellant] complained that he had
overpaid and was still being billed, paying ‘at least
$343,418.96.’ [Appellant] asserts that [appellee] was
paid the $240,000, the original balance from the State
Farm policy and an extra $77,000 from State Farm, in
addition to $26,000 paid ‘out of pocket’ by
[appellant].
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It is [appellee’s] contention that [appellant] requested
and authorized extra work and materials in the
amount of $58,510. [Appellee] further contends that
the total contract price, with extras, amounts to
$428,052.
[Appellee] filed a Mechanics Lien Claim at
GD 14-012420, to recover any and all deficiencies
between amounts collected and charged as they
related to 476 1st Street. [Appellant] filed a Complaint
in Civil action asserting violations of the Home
Improvement Consumer Protection Act and Unfair
Trade Practices and Consumer Protection [Act], as
well as one count of Breach of Contract at the above
referenced general docket number.
....
This matter was initiated by a claim filed by [appellee]
on July 18, 2014. A mechanics lien complaint was
later filed by [appellee] on November 19, 2014.
[Appellant] filed Preliminary Objections (hereinafter
“POs”) to the mechanics lien complaint on
December 19, 2014. The Honorable Michael McCarthy
sustained [appellant’s] POs, ordering [appellee] to
‘amend its claim as to labor and materials.’ An
Amended Mechanics Lien Claim was filed on
February 2, 2015.
A Complaint in Civil Action was filed by [appellant] on
October 27, 2015, alleging that [appellee] violated the
Home Improvement Consumer Protection Act and
Unfair Trade Practices and Consumer Protection Act
(Count I), as well as one count of Breach of Contract
(Count II). By Order dated March 1, 2016, the
above[-]referenced general docket number
(GD: 15-018939) was consolidated pursuant to
Pa.R.C.P. 213(a) with GD 14-10240 as
GD 15-018939.
[Appellee] filed an answer, new matter and
counterclaim on March 3, 2016. [Appellee] assert[s]
that the subject property, which is deemed
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“commercial”, would not be subject to either the
Home Improvement Consumer Protection Act
(hereinafter [“]HICPA”) or the Unfair Trade Practices
and Consumer Protection Act (hereinafter “UTPCPL”).
[Appellee] further den[ies] the Acts’ protections and
application due to the nature of the contract, finding
it something other than a “home improvement
contract.”
[Appellee] raise[s] counterclaims, at Count I, Breach
of Contract, and at Count II, Unjust Enrichment-
Quantum Meruit. [Appellee] now seek[s] a
deficiency of $102,610.00 in labor and materials
alleged to have been provided to [appellant] without
fair compensation.
[Appellee] further assert[s] that the parties’ original
contract included a compulsory arbitration clause and
that this matter should be removed from the Court of
Common Pleas and reinstated on the Arbitration
Docket.
Following some pretrial discovery motions,
Judge Folino signed orders dated August 15, 2016, in
which the Court placed this matter on [the] January
Trial List, noting that there would be no further
continuances. Additionally, Judge Folino filed an order
granting [appellant’s] Motion for Leave to Praecipe for
a jury trial. [Appellant] filed a demand for [a] jury
trial on August 19, 2016.
The parties met for a pre-trial conference in January
of 2017. When the parties were unable to resolve this
dispute through settlement, this case was assigned to
[the Honorable Michael A. Della Vecchia] for trial. The
parties elected to forego a jury, choosing rather to
proceed with a non-jury trial.
On January 11, [2017,] the parties, joined by
[Judge Della Vecchia] “viewed” the property before
commencing with testimony of five (5) witnesses over
the next several days. [Judge Della Vecchia] heard
and evaluated the live testimony of Joseph Lilley, the
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owner and operator of [appellee]; [appellant], the
owner of the subject property; Robert Gelman, a
certified real estate appraiser; Jason Adkins, the son
of the property owner; and John Stivala, a contractor
and co-owner of JS Construction before rendering
[his] decisions.
After evaluating the testimony and evidence and
giving this matter serious consideration, on
January 24, 2017, a non-jury verdict was entered at
GD: 15-018939, in favor of [appellee] and against
[appellant]. On that same date, a non-jury verdict
was entered in favor of [appellee] and against
[appellant] per the verdict entered at GD 14-01240.
On February 3, 2017, [appellant] filed a Motion for
Post-Trial Relief [for judgment notwithstanding the
verdict (“JNOV”)]. Upon receipt of said motion,
[Judge Della Vecchia] authored an Order of Court
directing the parties to appear for argument as to
same on April 20, 2017, with briefs due one[]week
prior. The argument was later rescheduled to
April 19, 2017, by Order dated April 3, 2017.
Following a thorough review of the parties’ briefs in
addition to argument held as to post-trial arguments,
[Judge Della Vecchia] issued an Order on April 21,
2017, deny[ing] [appellant’s] Motion for Post-Trial
Relief. Judgment on the Verdict was entered in favor
of [appellee] and against [appellant] in the amount of
$71,771.29. (Order, 2/2/17).
On May 4, 2017, [appellant] filed a Notice of Appeal.
In response thereto, [Judge Della Vecchia] issued an
Order dated[] May 16, 2017, directing [appellant],
through counsel, to file a Concise Statement of
Matters Complained of on Appeal pursuant to
Pa.R.A.P. 1925(b). Said statement was timely filed on
June 2, 2017, placing this matter properly before the
Superior Court of Pennsylvania.
Trial court opinion, 7/26/17 at 1-5. The trial court filed an opinion pursuant
to Pa.R.A.P. 1925 (a) on July 25, 2017.
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Appellant raises the following issues for our review:
I. Is [a]ppellant entitled to judgment as a matter
of law ([“JNOV”]) based upon the operation of
Pennsylvania’s Home Improvement Consumer
Protection Act, 73 P.S. § 517.1 et seq., when
the proposed contract for home improvement
work did not comply with multiple provisions of
517.7(a) and when change orders were not
reduced to writing or executed by either party?
II. Is [a]ppellant entitled to [JNOV] when, even if
quantum meruit was applied to this case,
[a]ppellant paid to [appellee] one hundred
thousand dollars in excess of the value of the
benefit conferred upon [a]ppellant, and when
[a]ppellant directed [appellee] to stop work
starting in August of 2013 when [a]ppellant had
all but run out of State Farm insurance
proceeds?
III. Is [a]ppellant entitled to a new trial when, prior
to the commencement of trial, the trial court
determined that neither the Home
Improvement Consumer Protection Act nor the
Unfair Trade Practices and Consumer Protection
Law applied to the instant matter, when the
subject property has served as [appellant’s]
personal residence and dwelling since 1987?
IV. Is [a]ppellant entitled to a new trial when the
trial court permitted opposing counsel two
cross-examinations of [a]ppellant, but limited
[a]ppellant’s counsel to “two minutes” on
re-direct examination.
V. Is [a]ppellant entitled to [JNOV] when,
assuming arguendo there existed a valid and
enforceable contract, [appellee was] the first
part[y] to commit a material breach, and when
any claim for costs associated with change
orders was occasioned by [appellee’s] breach of
contract, thereby justifying a suspension of
performance on [a]ppellant’s part?
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Appellant’s brief at 4-5.
I.
In his first issue, appellant contends that the trial court erred when it
denied his motion for JNOV and determined that the contract at issue is not
governed by the HICPA and the UTPCPL. The trial court determined that the
property at 476 First Street, Heidelberg, Allegheny County, Pennsylvania
(“the property”), “was constructed and used as something other than a
single-family unit and something other than purely residential.” (Trial court
opinion, 7/26/17 at 11-12.)
The standard governing JNOV is as follows:
Our standard of review when considering motions for
a directed verdict and [JNOV] are identical. We will
reverse a trial court’s grant or denial of a judgment
notwithstanding the verdict only when we find an
abuse of discretion or an error of law that controlled
the outcome of the case. Further, the standard of
review for an appellate court is the same as that for a
trial court.
There are two bases upon which a [JNOV]
can be entered[:] one, the movant is
entitled to judgment as a matter of law
and/or two, the evidence is such that no
two reasonable minds could disagree that
the outcome should have been rendered
in favor of the movant. With the first, the
court reviews the record and concludes
that, even with all factual inferences
decided adverse[ly] to the movant, the
law nonetheless requires a verdict in his
favor. Whereas with the second, the court
reviews the evidentiary record and
concludes that the evidence was such that
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a verdict for the movant was beyond
peradventure.
Janis v. AMP, Inc., 856 A.2d 140, 143-44 (Pa.Super.
2004) (internal quotation marks and citations
omitted).
Int’l Diamond Importers, Ltd. v. Singularity Clark, L.P., 40 A.3d 1261,
1267 (Pa.Super. 2012).
In order to determine the applicability of the HICPA, we must look to
the plain language of the statute. Specifically, our inquiry must focus on the
definitions of words and phrases contained within the HICPA. The HICPA
states that “no home improvement contract shall be valid or enforceable
against an owner unless it . . .” includes the 13 elements enumerated by the
HICPA. 73 P.S. § 517.7(a). The statute defines “home improvement” as work,
“done in connection with land or a portion of the land adjacent to a private
residence or a building or a portion of the building which is used or designed
to be used as a private residence for which the total cash price of all work
agreed upon between the contractor and owner is more than $500[.]” 73 P.S.
§ 517.2 (“Home Improvement”) (emphasis added). “Private residence” is
defined as either “a single family dwelling; a multifamily dwelling consisting
of not more than two units; [or] a single unit located within any multifamily
dwelling, including condominiums and cooperative units.” 73 P.S.
§ 517.2(“Private Residence”).
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At the beginning of the trial, the trial court conducted a view of the
property in question. Based, in part, on the view, the trial court noted the
following observations:
What [the trial court] could not fail to notice was the
existence of four (4) electric meters, three (3) water
heaters, two (2) air conditioning units, both an
apartment and a loft area created out of the first floor,
in addition to an operating workshop with numerous
organ pipes. It was obvious and apparent [to the trial
court] that this property was constructed and used as
something other than a single-family unit and
something other than purely residential.
[The trial court] found significant the facts that both
the building and occupancy permits were issued for a
commercial/residential property. [The trial court] was
further persuaded that [appellant] was not using the
property strictly as a residential, single family dwelling
by correspondence [appellant] wrote to the building
manager of Heidelberg requesting additional property
addresses to accommodate his business, as well as his
apartment and newly constructed rental unit.
Trial court opinion, 7/26/17 at 11-12.
As noted by the trial court, appellant testified that he wrote a letter to
the Heidelberg borough manager, in which he requested two additional
addresses for the property for two apartments, while maintaining his business
address at the property. (Notes of testimony, 1/13/17 at 284.) The trial court
also noted that the property had four electric meters.
The HICPA does not provide a definition of what constitutes a “unit.”
When a word is undefined by statute, we may determine the “common and
approved meaning of a word” by way of an “examination of its dictionary
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definition.” Chamberlain v. Unemployment Compensation Bd. Of
Review, 114 A.3d 385, 394 (Pa. 2015), citing Commonwealth v. Hart, 28
A.3d 989, 909 (Pa. 2011). Random House defines “unit” as “one of a number
of things, organizations, etc., identical or equivalent in function or form.”
“unit”. Dictionary.com Unabridged. Random House, Inc. 2 Feb. 2018.
. Based on this
definition and the trial court’s factual determinations derived from its view of
the property, we find that the property contained three units—appellant’s
business and two apartments.
Accordingly, in conjunction with HICPA’s definitions of
“home improvement” and “private residence,” we therefore find that the trial
court did not abuse its discretion when it determined that the HICPA does not
control in the instant case.
II.
Appellant next avers that he paid appellee “a sum of money in excess
of the value of the benefit conferred upon [appellant],” and as a result,
appellee cannot recover on the grounds of quantum meruit. (Appellant’s
brief at 36.) Appellee contends that appellant failed to include any argument
pertaining to quantum meruit in his motion for post-trial relief, thus waiving
the issue. (Appellee’s brief at 28.)
“Pa.R.C.P. 227.1 requires parties to file post-trial motions in order to
preserve issues for appeal. If an issue has not been raised in a post-trial
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motion, it is waived for appeal purposes.” Crespo v. Hughes, 167 A.3d 168,
181 (Pa.Super 2017), quoting L.B. Foster Co. v. Lane Enterprises, 710
A.2d 55 (Pa. 1998) (citations omitted).
In the instant appeal, appellant filed post-trial motions on February 3,
2017. Therein, he raised several issues; however, appellant failed to raise
any issues pertaining to quantum meruit or unjust enrichment. Accordingly,
we find that appellant’s second issue is waived for the purposes of appeal.
III.
In his third issue on appeal, appellant contends that the trial court
abused its discretion when it determined that the UTPCPL, 73 P.S. § 201-1,
et seq., did not apply because the trial court determined that the property
was a combination of residential, investment, and commercial. Appellee
argues that the trial court did not abuse its discretion because the UTPCPL
does not apply to investment properties.
We find that the trial court did not abuse its discretion, and that the
facts of record support the trial court’s determination that the property was a
combination of residential, investment, and commercial. The UTPCPL
specifically “provides for the right of individuals to bring a private action when
a “person . . . purchases or leases goods or services primarily for personal,
family or household purposes and thereby suffers any ascertainable
loss of money or property, real or personal . . .” 73 P.S. § 201-9.2(a),
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quoted by Lal v. Ameriquest Mortg. Co., 858 A.2d 119, 125 (Pa.Super.
2004) (emphasis in original case law).
Here, the trial court specifically noted the existence of four electric
meters, three water heaters, and two air conditioning units on the property.
Additionally, the trial court noted that appellant requested that the Borough
of Heidelberg grant him new addresses for the property for use by his business
and an apartment unit. We therefore find that the trial court did not abuse its
discretion when it determined that the UTPCPL does not apply to the property,
as the property was not being used primarily for personal, family, or household
purposes.
IV.
Appellant next argues that the trial court abused its discretion when it
limited appellant’s counsel’s re-direct examination of appellant to
“two minutes,” following appellant’s testimony when called as if on cross
during appellee’s case-in-chief. (Appellant’s brief at 49-50.) Appellee
contends that this issue is waived because appellant’s counsel failed to place
an objection of record to the trial court’s directive that re-direct examination
be limited to two minutes. (Appellee’s brief at 35-36.)
Our cases, citing Pennsylvania Supreme Court precedent, have
repeatedly stated that “[i]t is axiomatic that, in order to preserve an issue for
review, litigants must make timely and specific objection[s] during trial and
raise the issue in post-trial motions.” Miller v. St. Luke’s Univ. Health
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Network, 142 A.3d 884, 889 (Pa.Super. 2016), appeal denied, 164 A.3d
479 (Pa. 2016), quoting Harman ex rel. Harman v. Borah, 756 A.2d 1116,
1124 (Pa. 2000), citing Takes v. Metro. Edison Co., 695 A.2d 397, 400 (Pa.
1997); McMillen v. 84 Lumber, Inc., 649 A.2d 932, 934 (Pa. 1994); Reilly
v. Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291, 1296 (Pa.
1985).
Here, appellant’s counsel failed to raise the objection during trial, and
accordingly waives the issue on appeal.
V.
In his fifth and final issue on appeal, appellant avers that because
appellee was the first party to materially breach the contract with appellant,
appellant should be relieved of his obligation to pay the balance awarded to
appellee by the trial court. (Appellant’s brief at 51.) Specifically, appellant
contends that appellee was “obligated to attach to the contract (or otherwise
provide) drawings, specifications, Labor and Industry approved drawings,
notes detailing project cost breakdown and agreed upon assumptions for the
work to be performed by [appellee].” (Id. at 52.) Appellant further argues
that appellee only provided Disaster Restoration Services drawings and
specifications at trial, “which fail to reflect the job [appellee] set out to perform
or the job they actually performed, and which were rejected by the parties at
the outset[.]” (Id.)
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When considering an allegation of a material breach of contract, we are
governed by the following standard:
Pennsylvania courts have long recognized the general
principle of contract law providing that a material
breach of a contract, which is vital to the existence of
a contract, relieves the non-breaching party from any
continuing duty of performance under the contract.
LJL Transp., Inc. v. Pilot Air Freight Corp., 962
A.2d 639, 648 (Pa. 2009) (citing Berkowitz v.
Mayflower Securities, 317 A.2d 584, 586 (Pa.
1974) (citing 6 Williston, A Treatise on The Law of
Contracts, § 8[64] (3d. ed. 1962))).
In LJL Transp., Inc., our Supreme Court found that
Pilot was justified in terminating its contract with a
franchisee who improperly diverted business to a
direct competitor of Pilot that the franchisee owned.
Even though the franchise agreement expressly gave
the franchisee a right to cure a breach of the
agreement, the Supreme Court found the franchisee’s
self-dealing and disloyalty was an incurable breach
that frustrated the general purpose of the franchise
agreement. Accordingly, the Supreme Court
emphasized that Pilot should not be expected to
continue to perform under the agreement where the
parties’ basic trust had been violated:
When there is a breach of contract going
directly to the essence of the contract,
which is so exceedingly grave as to
irreparably damage the trust between the
contracting parties, the non-breaching
party may terminate the contract without
notice, absent explicit contractual
provisions to the contrary.
Such a breach is so fundamentally
destructive, it understandably and
inevitably causes the trust which is the
bedrock foundation and veritable lifeblood
of the parties’ contractual relationship to
essentially evaporate. We find our law
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does not require a non-breaching party to
prolong a contractual relationship under
such circumstances.
LJL Transp., Inc., 962 A.2d at 562 (citation
omitted).
Umbelina v. Adams, 34 A.3d 151, 159-160 (Pa.Super. 2011), appeal
denied, 47 A.3d 848 (Pa. 2012).
Here, appellant failed to establish that any material breach of contract
took place. As noted above, appellant avers that appellee failed to provide
specifications for the work to be performed at the property. This contention
is belied by the record. The trial court specifically stated that it “accepted that
prior to any construction, the parties . . . entered into a contract for
$369,542.50 for restoration commensurate with the plans drafted by Disaster
Restoration Services [] and signed by the parties on May 24, 2[01]3. (Trial
court opinion, 7/26/217 at 28, citing notes of testimony, 1/13/17 at 206.)
Upon our review of the record, we find that appellee’s Exhibit 1, which
appellant acknowledged being the contract that he signed with appellee,
contains numerous drawings, specifications, and project cost breakdowns.
Accordingly, we find that the trial court’s findings are supported by the record
and that it did not abuse its discretion. Appellant’s fifth issue is without merit.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/24/2018
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