Nagy, J. v. Avant Gardening

J-A03019-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JEAN NAGY AND CHRISTOPHER : IN THE SUPERIOR COURT OF
NAGY : PENNSYLVANIA
:
:
v. :
:
:
AVANT GARDENING, INC. :
: No. 852 WDA 2018
Appellant

Appeal from the Judgment Entered June 8, 2018
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-16-000336

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER*, J.

MEMORANDUM BY SHOGAN, J.: FILED MAY 1, 2019

Appellant, Avant Gardening, Inc., appeals from the June 8, 2018

judgment entered on a verdict in favor of Appellees, Jean and Christopher

Nagy, in the amount of $47,840.00. After review, we affirm.

The record reveals that in 2004, Appellees entered into an oral contract

with Appellant for the construction of retaining walls. N.T., 5/4/18, at 29.

Appellant agreed to construct the walls using VERSA-LOK bricks and VERSA-

GRID geotextile reinforcing material. Id. at 32. Appellees paid Appellant

$45,935.06 for the walls. Id. at 53. Appellant completed the walls in two

phases between 2004 and 2007. Id. at 46. After Appellant completed the

construction, Appellees observed defects in the walls including splitting,

leaning, tilting, and sinking of the bricks. Id. at 48. Appellees contacted

Appellant, and Appellant returned and attempted to repair the walls over the
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A03019-19

next seven years. Id. at 46-62. In 2016, despite numerous repairs, Appellees

had the retaining walls demolished and rebuilt by a separate contractor at a

cost of $52,690.00. N.T., 5/7/18, at 5.

On January 8, 2016, Appellees filed a praecipe for a writ of summons.

On May 19, 2016, Appellees filed a complaint against Appellant, and on August

8, 2016, Appellees filed an amended complaint. In the amended complaint,

Appellees asserted claims of negligence in the construction of the walls, breach

of contract, and unjust enrichment. Following a nonjury trial, the trial court

found in favor of Appellees and awarded damages in the amount of

$47,840.00.

Appellant filed timely post-trial motions that were denied on May 29,

2018. Appellant filed a praecipe for the entry of judgment on the verdict, and

judgment was entered on June 8, 2018. This timely appeal followed. Both

the trial court and Appellant complied with Pa.R.A.P. 1925.

On appeal, Appellant raises the following issues for this Court’s

consideration:

1. Did the Trial Court err as a matter of law by not finding that
Appellees’ claims were time-barred by the Statute of Limitations?;

2. Did the Trial Court err as a matter of law and/or abuse its
discretion by not finding that Appellees had committed spoliation
of evidence?;

3. Did the Trial Court err as a matter of law and/or abuse its
discretion by permitting the use or admission of unauthenticated
evidence which informed an expert’s testimony?;

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J-A03019-19

4. Did the Trial Court err as a matter of law and/or abuse its
discretion by permitting the improper use of a PowerPoint
presentation not included in the pre-trial statement and not
disclosed to Appellant prior to trial?;

5. Did the Trial Court err as a matter of law and/or abuse it
discretion by allowing expert testimony beyond the fair scope of
that expert’s report?; and

6. Did the Trial Court err as a matter of law and/or abuse its
discretion by entering a verdict against the weight of evidence?

Appellant’s Brief at 5.

We have reviewed the briefs of the parties, the relevant law, and the

certified record before us, including the trial court’s August 7, 2018 opinion.

After review, it is our determination that the trial court’s opinion thoroughly

and correctly addressed Appellant’s claims of trial court error. Accordingly,

we affirm on the basis of the trial court’s opinion and adopt its reasoning as

our own. The parties are directed to attach a copy of that opinion in the event

of further proceedings in this matter.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/1/2019

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•

Circulated 04/12/2019 12:54 PM

IN THE COURT OF COMMON:PLEAS.:OF ALLEGHENY'COUNTY,_PENNSYL.VANIA.,
· CiVIL t>IVlSrO�( .

JEAN 'NAG:Yand CHRISTO.Pf.mRN'A'OY� · NO·:
,·: · :D
·o eo3'36: .
· · :l·.6�:o .
w.1fe. and husband, . · ,
.Superior Court.No -.: �St·WDA ·zcns

y. OPJNIQN'

A VANT·GAROENING
. . .. . ' .INC.
. .. 7 J3Y\
Honorable OQmdd.J{/WaUco,Jr•.
706 City-County Building .
414 'Grant .$(r�i.t .
Pittsburgµ, PA 15219

COPIES'TO:

Counsel for Plaintiffst
Dav-id M.. Tkacik, ·�q1,iire
Ti<:A:.€IK LA:W-OFFIQE
.9500 Btooktree Rd., Ste. 205.
Wexford, Pennsylvania. J$.0.9.Q

Counsel for Defendant:
·n�.oqfs .,M.. Blackwel], �quir:e.-
..... - .. TuE BLACKWELL LAW FIRM:
Beneaum ·Trees Building
2;i_tFo'1rtJ1 Av.em1� • .gih· Fl9or .
Piltsbutgh,. Pennsylvante' 15222

:Rpbert- b· Lampl, Esquire
'J ames R. Cooney, Esquire
nm LAW .OFFJCE·or ·Ro�a:�r o LAMri
ijen.e:dupt'Trees Buitdi:ng .
223; Fourth Avefitie,.4\n Floor
P.ittsb1,1.i:gh?, ·P�nn�yi;vcIDfa: i.s.222
1
 i.

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IN'TIQwi:0URT{j?f (:;OM¥0N PLEAS Of' ALLEGHENY COUNTY, PENNSYLVANIA
.JEAN.NAGY.anct ·C.aRISTOPHER NAGY., GiVIL. DIVISION.
wife and husband, : . .
No.: µs�ndi eigllt-fiun�rtd. and 'forty
I t
'
dolhmr($47�84.0.00). b,"ef¢.�dant�ppeal�,.for th� reason;'; set.forth hr this.Qpfo1on,.:the-brg�rshc.mld.
. � .
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,;
·1 . ,.

I
be .affirmed,
1
} t, ;PROCEI>URA:t.HISTORY.
'
'.a. On .January .�·,·�Q�_6; ..Pfainiiff� filed: a: Prae¢ip� for Writ of Summons lifiofi.'D�{�nda�L
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.,
f
Plaintiffs. fHed a three ($t�hunt Arilend�d Complaint ag�in.s.t Defendant Q�1 ..Augu·st '8, 2Qi6· for·
! ' . . . � ..
.negligence, ·l?rn.��h. of contr�ct,)md. unjust euriohmentSee' Plaintiff's Amended ·.Qomplafot, dated
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..• ·• l .. August 8;..Z016 .. P:l�jn.tlns· .i�J�ged. tfi_at Defendant negllgentlyconstructed .a.. number of r�Jaining
·.1 •

I
Wt i•

wa1ls··f'·th�. ·Walls''.) ion PI.�ln�iffs'· _p·r�per.iy :�t ,3300 Old ·Qak,dal�··Ro·ad,. South ;Fayette:·Towns4iP.i'
. ·,1·
f .. ! . .• . . .. .. .. . . . .
P�nnsylvani'a, :l.$QSq • Id.. Plai;ntw/.�; further alleged that" the construction-project required expertise
�
.., . .and skills .that Defon.��Q�· :d1di not poss�ss: I'd.
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 Construction allegedly began in October of 2004. and ended in December of 2007. Id.

Shortly thereafter, Plaintiffs informed Defendant of the Walls "buckling," and Defendant insisted

it could repair the Walls. Id. Repair efforts began in the summer of 2008 and continued until

October of 2015 when Plaintiffs requested that Defendant cease work. Id. Plaintiffs asserted. that ·

"upon consultation with engineering and landscaping professionals," the Walls were determined

to have been constructed incorrectly by Defendant. Id. Plaintiffs further asserted that the Walls

required demolition and replacement. Id.

A three-day non-jury trial was held on May 4, 7, and 8, 2018.1 Plaintiffs appeared with ·

their counsel of record, Attorney David M. Tkacik. Defendant appeared with its counsels of record,

Attorneys Dennis M. Blackwell and James R. Cooney.

Defendant presented a Motion In Limine to Limit Claims on May 4, 2018. Defendant

requested that Plaintiffs' claim for negligence be limited to acts that have occurred within the two

(2) years prior to the issuance of the Writ of Summons. Defendant further requested that Plaintiffs'

claims for breach of contract and unjust enrichment be limited to acts and payments within four

(4) years prior to the issuance of the Writ of Summons, The Court denied the motion after

determining that the Repair Doctrine applied and prevented the statutes of limitations from being

tolled. See Order of Court denying Motion In Limine to Limit Claims dated May 4, 2018.

Defendant presented a Motion In Limine to Exclude Evidence Based on Spoliation on May

4, 2018. Defendant asserted that Plaintiffs spoliated evidence to the prejudice of Defendant when

they demolished and replaced the Walls. Defendant, therefore, requested that Plaintiffs "be

precluded from offering any evidence that Avant Gardening, Inc. failed to properly construct the·

retaining walls." See Order of Court denying Motion /11 Limine to Exclude Evidence Based on

I References to the
hearing transcripts for May 4, 7, and 8, 2018 will be cited lo as "H.T. Day 1," "H.T. Day 2," and
"H.T. Day 3" respectively.

3
Spoliation dated May 4, 2018. Plaintiff's counsel, Attorney Tkacik, responded:

I, as counsel, informed [Defendant] via letter, certified mail on April 5, 2016, that
they must -- if they wanted the opportunity to inspect, document, photograph the
retaining walls for purposes of litigation or trial, they must contact me in writing to
arrange a time to do· so. And my letter stated that the work would start in
approximately three weeks.

At that point, we did have a docket number on April 5, 2016. I subsequently
.arranged for a time to meet at the property with counsel for [Defendant], Dennis
Blackwell, and we did meet there with the defendant's engineer present.
Defendant's expert . was present at that time and studied the walls, took
measurements.

Subsequent to that, on July 13, 2016, I sent a letter to Mr. Blackwell indicating that
he had not notified me that he wished to be present during the demolition of the
walls. And that was something in my initial letter that I notified him that if he
wanted tobe present during the demolition of the walls, that he had to let me know.
He never let me know. And, subsequently, the walls were demolished.

See H.T. Day 1, at 4, 5. Defendant's counsel did not deny this averment, but insisted that their

expert's inspection did not negate the prejudice of the spoliation. Id. at 6. The Court denied the

Motion In limine after determining that Defendant suffered no prejudice since Plaintiffs gave

Defendant more than two (2) months' time-to inspect the Walls. Id.

After the trial, the Court found in favor of Plaintiffs, and awarded damages in the amount

of forty-seven thousand, eight-hundred and forty dollars ($47,840.00). See Non-Jury Verdict,

dated May 11, 2018.

On May 17, 2018, Defendant filed a Motion for Post-Trial Relief. Defendant averred the

following:

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 l· · ..-; \r>.·}:··. .:· . .: :;. .
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4:
!hi�·.
matters:
;r-io«i9r��,�:
t: ··
q>.�tt'-s
,ruli�g� �
ere··.etro�eous: regarding the·
following
· ·

a. The Cb,i;trl f��l�d. to (ind that Jhe Plaintiffs. claims were' time-barred by tfie
. S.ta(4te:�.f:Ljihit<1,.Hons; Which issuewas raised by Defendant's.Motiorrfor
Su�att Ju�gme1n �1,1(l by-Defendant's' Motion in Limine to Lhnit:Ciaims;:
I• •' ' • ' • -
i · • . .

b. T:he -c;o!(rJ. {afted to .fiifd · that'Plaintiffs had'. spoliated evidence b.y
·qerp_(;)llslti�g'jihe walls constructed by ;):Jefend ant -whicll ·i�su.� was raised. by-
D.efend(ne�s\ Mpi1&n· in Limine ·to. Exclude EV.:ioen��: Based on Spoliado.n;
. ' .

c.. 1:'he .Cot�ti etr9,qeously;permittec.l,eJ!:pe1::t, testimony l��YQJJ(i the fair scope of
the ·e�p�h; rep'of.t,. w.liich. was r�i�ed. by: o�jecfio.ps 1),t trial; and
� i •; ! .

d... The Cour(ed,�n.eous�y permitted t_l1e admission or· reference to inacbh{��ibie
.evidence, Jn�h.19ing; ....

(1)'Th�·\Plai'1tjtf�' expert, Robert J.. Capo's repoz:t, whicherrorwasraised
b,t�ef�ndartf?s �oJjon 'in Limine to Exclude Certain.Reports and
I Exlfjbits°ta�_g b,y, obJet:tioiis at trial;
• t l • .

. ·1 (i}Ai�w.�riPoi�t-.pres.�.o.t�tlo.n' prepateg' by�J>laintiffs-' exp�rh 'E.'o}).ert J.
.: I ... C�g.p� w.�kh1 raised. by objections at :trial��rrorw��:
.
;_ .
:: I ... · (3.)'i)_rawtqg�.and reports prod�cea by·O�t�way. Engineering, whicherror
:.I... · · was.-r,ai,$t\gi by Defendant's Motion ·.in· Limine t¢ Exclude, Certain
L, I Rep�ft$: �ti.d.Ex·hibits; �n4-
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'(4) Rep,brt� P,rt: ,gq_9ect: oy ECS M{o�Atiantic� ·wfiicn error was raised .py
:D.efe�d�t' s. Mo.tiori, in )Jmfne to ExducJ�: Certain Reports and
� E�ldbhs.·· . .
I'
. . .. J•, .. ;. . :· .
' Ii· $��J).efendartf?s Iyl.Q(fo.n. fer PosttTrifflf�_elief; datedMay 17-� ·2018.
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· Defendant teqµ��t�l that· the Court grant. a :i1�w. tri� or- en'ter- ·a judgment no.'twith'stan<3i.:P.g
�

1. ' . • t

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the. verdict ·hJ fav�:r-,of,;.Pei�tid.ant. :After hearlng oral atgume11t�1..the Court d�ni�d Defondant1:�
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. ,,
Jvtodon,for:Post-Trfal .R�li��-'. See Orderof Court, dat�i.i May 29, ·2orn!
�
:p�fend�n·t mis�_s: the· .folleWin;g mauers ·c.omplaine� Qf onappeal:
,I •' .,
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a. T:h.is..Honorable Court-erred 'as·�a m�tt�r- of.law ar1cJ/9r abused.Its.discretion by
' .... .
· np't :.ffu'dfog:. '.J"fia'f. Pla:itififfs'·� .cJaims Were· tiro.�"ba:rre.cl �y tn�· Statute of

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I. ::: · ... ··; . . ,..·. ·:�. r. · . · . ·, J,,, • II, .,.

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.
'.
• I>
Limitations; •:.'

Hon�t��i4:·���(-t:err:e.d:·a:s··a
b, 'f.h.is .m�Jter of faw·a:ncflo.r abused 'its'discretion by
.. �·
··.
.not ·fin<:Ii.ng\tb�l.,
;P.lain\iffs fi�� cemmitted spoli�d·
. on ·of evidence;
. '
Hbn�t��1(d1urt:
q. This er.red. as.a matter of law �.�/or, abused its dj_s.�retfon by
) ppt_mitt�.Qg;,,thei1�j dmis_$fon ,of evidence which was f�pr�p�t�Y authenticated,
:o.amely,i.. �,1: . · ·
.·..... I� •

ii i, .Di:awii1gsJ!IJ,O reportsproduced byGateway Engineering, .and
r· • .
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,; I ,

:if. Rep:,..oHs,\pr,o·. d"1�d by ECS Mid'-A:lh111tic;· ':''
. ·1.... . .
. ·d.. 'ifhis' Ho.n�raJJJ�I U:ouft erred @..� -� .matter. ·Of i�w an;d/er. abused 'frs. discretion By
pefmitt�ngJlr�. ·�&�i&�lQn ·ophears�y. evidence, :namely.:· · .
. . !.•. I• • .
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i. '.'f.h�:·�}.(:p�r.freport of �.o.Qert.J/Capo,
• • t- ': ·• • • �

ii'. Driwin&� �jl.o reports pro(Jµc;ed -�Y Gateway E.ngjne·tfring, and

.iii.; R�µ��ts.br rg4uGed. byECS':Mi_�-Atlan�ic:;
·e.. This flo-�6iib1�: !c(:).tirt ette� as .a· �after of Ia,w �1J.d/.or abused .lts .d}scretiofi'.�:Y
pe��(tjpg. ;the: · �fiti'.Y-"Qf a report, the Powerpoint 'presentation, prepared by
:·r.i�.�ll!l��,/��-eif�.hiB��hij�;·gdt·.���ViQ���� bee� �i�ted on the. pretrial' statement
·and whicltij�q,npt previously been provided to Defendant;
·�
i; · . This: Ho·4ot�·Q.le·"C.91,11.t:erre'a �.s. a matter :oflaw �md/or..abused Its d.i.�cre.tion ·by
·,'.... .•. :�er��tth)g;,t��:·p,:�tf�esfim0lly·b�yond Ihe,:(a_ir scope .of. the expertreport; and
1

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·g.: Thi$: ijb� 9ra.\>Ie.:C(mrt.etred. ;�s. · ir: matter of law ·and/ or· abused Jts:. discretion. by
:eh�efjp� l·%;i:�i�t,���i�$t ·�ii� ·':"ii�t P.� e.vldencet fr1s9f<1-r as. the Court f�'ile.d. �o
. ·��� 'int?.?Cf?�·�:ttb�ti:���· all, w.al:l(were :�?il�trn�te..d �e�i�en_tlr ox -�e_r� m.
•'·;'1).
breach of-wP,J:r:a.�,t;_ and 1ns9far as Jhe Court failed ·to.: take .mto acconnt · the age
ofth� w�l,I(s·�·t-,itl-�epr�G,i�tfon. .. .
�-·.. . ..
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See i;)e,fendanfs·.Con,¢.i!e:·$tji.tement of :t,Aa.(ters- Compla,h1�.d of oh· App�.�J Pursuant to '.P.�.�,C;P •.
)
•,.
'192:S(b),. da,t�d July 3; 201$.\ · · .
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I n, 'FACTS·.
'· I •I •

:- II ·1. • Testfmcm.yµilt "similar walls" fo: th� past,

. .. Atfhe beginning. ohbe project, Mt. ·Gagli�·t�stified
'but none "that big," J4.\it 119
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that he believed

JMJ:an engineer was nt>f necessary and .he: did .not Investlgate Iocal building. ordinances. Id. ar 151'-,
' ,.
·.152. During contract negotiations Mt. Gaglia failed, to: inferm Plaintiffs' thar "the scope of [the}
. ..
project was beyondanything' [he] had done. before" since he.started.in business in 19.86 . .Jd, l!d4'7. 1
, . II
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1$9.
·1
l·_ ·,
i Mr, Gaglia tesflfied 1ili�t, he .had attended "some 'training classes" .reg�rdfog VERS'A..LOK;
I
I '"[�1ut nothing th..at was real, qUcH.e, format" Iii. at 174. Mr. O�gii!'l. further 'testified· th!lt at jhe time
I·
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en1Pne�_1:(.;J" Id: 'at 184 ..
II
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I 2� C�ey. Hartz, B.u�lding· {fod� Official:,

I GaryJi-i.ar:t:z:; 'thesbuilding <;Qde· official fot South Fayette Township, testified. that, theWalls
I
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J • ' •

' ·�s· -�epk:ted in ,a 2�Q7>pJ1ot,ogtaph would have .required a building: permit and' 'an engineer's
I
. � ptirs4�t
"drawing" with a.seal . to Art Vl, Ord.. No .. 230A,. .§.§1 163-1 et- seq: Qf-'tht To:w.nship 6f
. . .' -

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 Mr. Hartz st�ted that "you would need a permit because anything over four feel in height I

think would have a bigger chance of failing and needs to be engineered to look at the loads imposed

on them." See, H.T. Day 1, at 80. Mr. Hartz further explained that if any portion of the Walls were

taller than four (4) feet in height the entire project would require a building permit. He added that ·

portionts) over four (4) feet would require an engineer. Id. at 80-82.

3. Expert Witness Testimony.

a. Plaintiffs' Expert, Robert Capo.

Plaintiff's expert, Robert Capo, P.E., was qualified to testify as an expert in engineering..

See, H.T. Day 2, at 72. Mr. Capo testified that he examined the Walls during site visits in October

of 2015, June of 2016, and July of 2016. Id. at 70, 82. In developing his opinion, Mr. Capo also

relied upon a Gateway Engineering survey and a C&R soil report. Id. at 70, 71. Mr. Capo further

relied upon the "industry standards from VERSA�LOK and the NCMA, the National Concrete and

Masonry Association, which the segmental-wall industry relies on for engineering information and .

engineering criteria." Id. at 81, 82.

Mr. Capo opined within a reasonable degree of engineering certainty that the Walls "did

not follow the standards of practice for construction].]" Id. at 101. Mr. Capo stated that the Walls

were subject to a "fair amount of movement" and were "coming apart." Id. at 74. Mr. Capo testified

that the design and construction of the Walls required an engineer and a building permit pursuant

to Art. Vl, Ord. No. 230A, §§ 163-1 et seq. of the Township of South Fayette's municipal code.

Id. at 83.

Mr. Capo testified that the VERSA-LOK's manufacturing requirements are "more

stringent than any local code would be." Id. at 100. Mr. Capo further opined that a

review ·of the site plan ... showled] that [the Walls] were closer than the
requirements for VERSA-LOK, thereby requiring an engineering design and soil
9
 reinforcement by the way of geogrid soil reinforcement. This reinforcement was·
· riot included in the original wall installation but was required due to tiering and
slope conditions.

Id. at 103.

Mr. Capo explained that the 'Walls were built without required geogrid except "there was

one wall rebuilt at a later date" where geogrid was installed by Defenda·n t incorrectly. Id. at 99.
1

Mr. Capo further testified' that the geogrid was supposed to be perpendicular to the Walls, but

instead a small amount was installed parallel to the Walls. Id. at 97,98. Mr. Capo opined that

Defendant also constructed the Walls without proper drainage.1d.

b. Defendant's Expert, Lou Marsico.

Lou Marsico, P.E., was qualified to testify as an engineering expert. See, H.T. Day 3, at

56. Mr. Marsico testified that he observed "areas [of the Walls] that needed designed by

professional engineers" and that "alot of [the Walls] failed." Id. at .60. Mr. Marsico testified that

VERSA�LOK "guidelines ... clearly states an engineer should look at it." Id. at 53.

Mr; Marsico opined that "engineering or geogrid" was required for "14 percent" of the

Walls (Id. at 73) and that geogrid would not have prevented all of the Walls' failures Id. at 84. Mr.

Marsico further opined that the failures were caused by "not having an engineer design per the

requirements of VERSA.LOK." Id. at 84:

4. Defendant's Attempts 'to Repair the Walls.

Ms. Nagy testified that the Walls began "moving" shortly after their installation. See, H.T.

Day 1, at 33, 48. Ms. Nagy credibly testified that

[e]very time [Mr. Gaglia] would come out, for whatever reason, we would grab him
and say, hey, we are concerned about this. Come look at this. He would examine
the areas we were concerned about, and, like I said, very often, although it's not
-documented, he would ·CQme back and restack areas and make it look a little bit
better.

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Id. at.60.

.,
. .Mt. G�gU.� 9.:ffered tc. repair
M�. .Nagy fost�.fied·;�.hat: .the -w-�It&Jr.ee: of eharge as. rtoteq :.in. aIJ.
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'invoice tlated-.M�Y: f6.? ·iQ�9� fd.-,at46·;:"PJ�.iqtiff.'·s.. Exhibit·2. Ms. Nagy-credibly'testified tfiaP�1r.

.Gaglia.had :ahem�ted:·tQ rep�ir the Wallii\J�el'. Q.1,Js· times before May· 2�. :2009, butthat he.il'oted.:i�·
0

. . r . .
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·.. · 'in an 1p.:voic�..onfy once, $.�e:;:·:a::r. D:{t 1,. at 47: Ms,1 Nagy explained that ''w.e started ralkingto
. '
[Mr. G�gHaJ.pretty·:eirly'aft�t:th�.copstruction ... abeut.someof the issues.we wereseeing," fd.. at
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47; 46. '.Ms·. N'�gy_ <1:r;dibly testifi��· that.Mr. Gaglia returned :at te�st once .pt�r· year. for various
�· I .

purposes and' ·w.ouJ<;f':m_aJce .repairs, to �he Wall$ wbfie 'he was_ there. See, n.r, :.p_�y 2,: at 38, ,She

. J�rtlier credibly :fe!itifi��- t��J she cl.Id.· no): commence: a faws�k�g�ipstO.efendant because. sh.� relied
. . ... ·. . '

'Oii Mr:�..(Jagii�!:s..st�te���t� that.he.·�.uid Jix the ·�alls; Id. ar 37� ·�$.
� .
M� . .Nagy, tesJified \haGn: Ma;y,=of it)15· Plaintiffs asked Mt.. 0'.�glia to cease his' "band-ai'd1'
. • .. ·1 . . .

repair eflfotts:aria�in��� ·a·.peoo.ane·ni repair w.ith._g..eogd.9,,/d. at 61, 62, She fuh�er·testifi �� -that Mr.
.. • ! .
. . ..

Gaglia agreed :ana: 'bf.fJre�, t{> r�mec\y· the defective Walls.wttb he�y.y tquip�ent 'and.geogrid before
. • I " . .
.'

- .
wint�r.;,ld .Ms·.'Nagy. te.. �_ti£fed-·
·,
tlia:fi.ri.:()ct6berQf2015 Defendant's employeesarrived.on Plaintiffs!
.

...i..... • • • • ••

equipment er, _g!;}�grid::· ��. ar ·68.; Ms.. Nagy .�rth�r testi:tied. that Plaintiffs immeepnsy.{vania has long 'held. that" .,. the ,destr.u:ctidil .or withholding:
' .

· ·of° evidence which a tfa-tty :pug)it 'to produce. gives. rise to'. a presumption ·1.!n£�\'.Prable· to 'him; as his
• • • ', I • ''

;<.:Q���c;J may proper!}'.· �e ·a(ttibiHtd to nis supposed.knowledgethat'the tm th would operate against

hint'; McH�gh vdJ.cHugh; 40 A. 410, 411 (Pa .. JS.98).

· In Schr.oe4er Vi �om,,. Dept. :of Ttansp., 710 A,1<1:i) (J'ii'. 1998); the ·Petinsylvanil!- ·s.1,1m:eme·

;, Court ado_pted \he· TIJ.ird 'Of:rcuit Court' of.Appeals·' standards for !!Pol.i.atfon,of evldenee ifs. outlined
...
in.Sihmid v. · Milwaukee Eie�tri� fpQi Cprp:-; 1:3: 'F:3d 7i5, (3tl Cir. 1994:). Sr/6.ro.e.4.er._, supr.a:,at. 27
,,
(�jt{ng,S�hmid: s.upra at:81):.. The .Court-:in,$chro�der adopjed the followfas ·staiidards from Schmid.:
. '
In de_ciding tl.ie. prbper. penalt-r for the spdliaiiQn o.f -�videi,t.ce,. the. Third Circuit
fQun.f ¢.e· party who altered' erdestroyed ·Ule-
evidence; -{2) th� .g�gi:��· of'p,r�judice suffered by- the oppo�ing: p,atty, and ($): the-
avliil4bjlify.·.oq lesser sanction 'that·w'ill. protecttb-�-Qppos1ng_ par.tY.;s,rights and deter
future fsirnilanel:lnduet.' .
, .. ·.. t

Schroeder, supra. at 11 ( citingSchmid; .supra at W).

The Superior c�)U·�. -Qf reI)Jlsylvania has 'ruled that H .tne Go1.1.n.. _fJ�d:nhat evidence was
.spollated' by a,par�y,_ iliep. the-Court ·" ... ��oullsilect the: least onerous ·saiictiort,cQmmeP.il.ur�t�:wfrh
' .
the. spc_;ti;itoi'�: fault and theother ·p-arty's ·prejudice:"·Uoun.t O#vet Xab'e.r.n.acle Church .v.. Edqin L ..

· Wiegand Div., 781. A,..�. 1.t6�; f273.:(J>a.. .Super, Ct, 2001 ), '(citing:Sch112id, 'supra. at. '79). In jti�y
. ' '

trials, a. remedial instruetfoii · to: the jl,!ry' is otep th'e appropriate saiic:tfotY .. $chrgcti�r,..$Uprfl at. 26�
. • . l . ' . -

'.27 . .FuJth.Clr-; "[w]her.e fault and prejudice are inQt s�vere,·,�ismissal :is·foa:pptoptiaie/''Mount Oliy�{
Tdb�rnacle, �upr.q. ap110 (c:;iting Sdiroecjer,; supr.a at'27, 1.S,;S�hmi.�';, supra at -81) ..
: I ' • •

As addre��ed,supr.ai'.Pt'a.i!i(iff� gave Defendant ample.opportunity to i'iJ�p�f;t·th�--d�fectiye

ret�ining walls'prior toi:�enioliifon. See, Procedural ':t:Jistory supra. at 4. Plaintiffs' counsel averred

'thai::Defendant's cp_µ��l and: Defendant's engineer ''studied the w?ll�;· tandJ tookmeasurements, "2
"'\ \
I

2
Neither'.Defendant's,1:911n{!;l iJ�(Mr. �arsito. denied this averment.
(.

9 ''.
 Id. Plaintiffs notified Defendant ori April 5, 2016 that they intended to demolish and replace the .

dangerous walls within three (3) weeks and urged Defendant to investigate the. Walls prior to

. demolition. Id. Plaintiffs did not demotish the Walls in April. and Defendant had more than
.
two (2)

months to inspect them. Plaintiffs notified Defendant again on July 13; 2016 that demolition was

imminent and. urged Defendant to inspect the Walls. Id.

The Court determined that Plaintiffs' fault and Defendant's prejudice, if any, were ·

minimal. The Court, therefore; properly denied Defendant's request that Plaintiffs "be precluded

from offering any evidence that [Defendant] failed to properly construct the retaining walls."

***

(Defendant's Matters Complained of on A1;meal (c.) and (d.): "This Honorable Court erred as a
matter: of Jaw and/or abused its discretion by permitting the admission of evidence which was
improperly authenticated, namely: drawings and reports produced by Gateway Engineering, and
reports produced by ECS Mid-Atlantic. This Honorable Court erred as a matter of law and/or
abused its discretion by permitting the admission of hearsay evidence, namely: the expert report
of Robert J. Capo, drawings and reports produced by Gateway Engineering; and reports produced
by ECS Mid-Atlantic."

3. The Court Properly Overruled Defendant's Hearsay and Authentication Objections to
Robert Capo's Testimony because Expert Witnesses are Permitted to Rely Upon Outside
Reports and Information When Giving Their Opinion. ·

When determining the admissibility of an expert's opinion that relied upon reports not in

. evidence, tlie Court is bound by the appellate precedent in Duquesne Light Co. v. Woodland Hills

School Dist., 700 A.2d 1038 (Pa. Commw. Ct. 1997). Similar to the case sub judice, an engineering

. expert in Duquesne Light Co. opined regarding a defectively constructed embankment. The

expert's opinion utilized data and soil reports conducted by a non-testifying expert. Id. at 1049-50.

Opposingcounsel objected stating that the information therein was inadmissible hearsay. Id. at

1050. The trial court, over opposing counsel's· objections, permitted the expert to iestify and the

Commonwealth Court affirmed. Id. The Commonwealth Court, citing Pennsylvania Superior

15
Court precedence, .stated: .

Pennsylvania courts r.ecognize an exception to the hearsay exclusionary rule for
reports on which experts reasonably reJy in reaching their professional conclusions.
Primavera v, Celotex Corporation, 415'Pa. Superior Ct. 41, 50, 608 A.2d 515, 518
(1992},petition for allowance ofappeal denied, 533 Pa. 641, 622 A.2d 1374 (1993).
Experts are permitted to express opinions based upon reports, not in evidence,
provided that such reports are of a type customarily relied upon by experts in the
field in making professional judgments. Id. at 50, 608 A.2d at 518-19. However,
an expert is not' permitted to "repeat another's opinion or data without bringing to
bear on it his own expertise and judgment." Id. at 52, 608 A.2d at 521.

Id.
Mr. Capo partially relied upon reports and information from Gateway Engineering and

ECS Mid-Atlantic when drafting his report dated November 9, 2017. His reliance on others'
'·

reports was permitted under Duquesne Light Co. because, as Mr. Capo credibly explainedit was

customary for engineering experts to utilize such reports when making engineering determinations.

Mr. Capo, moreover, did not merely "repeat" the Gateway Engineering and ECS Mid-Atlantic

reports, but he combined his own professional analysis with the reports' data after visiting the

Walls and inspecting them. The Court, therefore, properly determined that Mr, Capo's opinion,

while relying on report� and information not in evidence, was admissible under the standard.set

forth in Duquesne Light Co.

***

(Defendant's Matter Complained of on Appeai' (e.): "This Honorable Court erred as a matter of
law and/or abused its discretion by permitting the entry of a report, the Powerpoint presentation,
prepared by Plaintiffs' expert which had not-previously been listed on the pretrial statement and
which had not previously been provided to Defendant;")

16
 4. The Court Properly Permitted Plaintiffs to Displ�y a Micr�soft PowerPoint Presentation
During Robert Capo's Testimony because it was a Visual Aid and It Did Not Go Beyond
the Fair Scope of the Expert Report. ·

The standard for permitting visual aids during trial was articulated by the Superior Court

of. Pennsylvania in Com.nionwealth v. Rickabaugh, 706 A.2d 826 (P_a. Super. Ct. 1997). In

Rickabaugh, the defendant objected to the Commonwealth's use of charts and photographs as

visual aids during trial. Rickabaugh, supra at 837.. Defendant objected on the basi� that "the chart's
�ntents were not reasonably based upon tbe facts in evidence, and, therefore, the chart's use" was
impermissible. Jd. The Superior Court, citing the Pennsylvania Supreme Court, stated:

"Visual aids .may be used to assist the jury in understanding the evidence in -
appropriate cases, and permission to do so is within the sound discretion of the trial
·judge." Commonwealth v. Pelzer, 531 · Pa. 235, 245; 612 A.2d 407, 412 (1992). This
rule applies equally to demonstrative aids used .during the actual trial phase
and during the parties' opening andclosing arguments.

_ Id. (Emphasis added).

· During trial, Plaintiffs utilized a Microsoft PowerPoint presentation ("the PowerPoint") on

a projector screen to aid the Court and illustrate Mr. Capo's testimony. Defendant initially objected

to the PowerPoint as an exhibit because it was not disclosed or referenced in Plaintiffs' pretrial

statements. Plaintiffs responded that it was a visual aid to assist the Court in understanding Mr.

Capo's expert testimony and that it was merely a presentation of the photos and information from

Mr. Capo's report. Defendant then consented to the PowerPoint on the condition that "it doesn't

go beyond his expert report. If it does, I'll have objections to that." See, H.T. Day 2, at 61.

The PowerPoint, which was reproduced in a physical handout, contained photographs and

information that were disclosed in Plaintiffs' pretrial statements. The PowerPoint in itsinitial

slides, however, also contained photographs of example retaining walls that were not disclosed in

17
either of Plaintiffs' pretrial statements3• The Court, therefore, precludedthe non-disclosed photos.

Id. at 77.

Defendant objected to the nineteenth PowerPoint slide because it was not disclosed in the

pretrial statements. The slide was titled "Sectional View of West Walls" and depicted Mr. Capo's

hand-drawn view of how far apart the walls were. Plaintiffs initially used the slide as a visual aid,

but later the slide was admitted in rebuttal of Mr. Marsico's testimony. See, H.T. Day 3, at 95,

118�19; Plaintiffs' exhibit 18.

Based upon the use of the PowerPoint as a visual aid and the preclusion of undisclosed

photographs the Court did not err in permitting Mr. Capo to use the selected portions of the

PowerPoint presentation.

"'* *
(Defendant's Matier Complained of on Appeal (f.): "This Honorable Court erred as a matter of
law and/or abused its discretionby permitting expert testimony beyond the fair scope of the expert
report;")

S. Robert Capo's Testimony was Within the Fair Scope of His Expert Report •.

[This section incorporates the analysis addressed supra under Discussion sections 3 and 4.]

When assessing whether or not an expert's testimony goes beyond the fair scope of the

report, the trial court must determine if the opposing party was given "sufficient notice" of what

content the expert's opinion would contain. The Superior Court of Pennsylvania ruled:

No "hard and fast rule [exists] for determining when a particular expert's testimony
exceeds the fair scope of his or her pre trial report," and we must examine the facts
and circumstances of each case. Mansour v. Linganna, 787 A.2d 443, 445�6
(Pa.Super.2001) (quoting Wilkes-Barre Iron & Wire Works, Inc., v. Pargas of
Wilkes-Barre, Inc., 348 Pa.Super, 285, 502 A.2d 210, 212-213 (1985) (internal
quotations and citations omitted)). In doing so, we must ask the overarching
question, which is whether the purpose of Rule 4003.5 is being served. Id. We are

3 Plaintiffs filed a Pretrial Statement on March 15, 2018 and an Amended Pretrial Statement on April 23, 2018.

18
 guided by the foUowing:

[I]n determining whether an expert's trial testimony falls within the
fair scope of his pre-trial report, the trial court must determine
whether the report provides sufficient notice of the expert's theory
to enable the opposing party to prepare a rebuttal witness. In other
words, in deciding whether an expert's trial testimony is within the
fair scope of his report, the accent is on the word "fair." The question
to be answered .is whether, under the particular facts and
circumstances of the case, the discrepancy between the expert's pre-
trial report and his trial testimony is of a nature which would prevent
the adversary from making a meaningful response, or which would
mislead the adversary as to the nature of the appropriate response,

Feden v, Consolidated Rail Corp., 746 A.2d 1158, 1162 (Pa. Super. Ct. 2000)
(citations and internal quotation marks omitted).

Defendant objected three (3) times during trial claiming that Mr. Capo had testified outside

the fair scope of his report.

a. Defendant's First Fair Scope Objection - Failure to Disclose How Mr. Capo
Reached His Opinion.

Defendant's first fair scope objection was as follows:

To say that Mr. Capo did his own measurements and reached his own conclusions
when he arrived at his opinion, none of these measurements regarding his own
conclusions are set forth in his report. He doesn't say, I went out to the· field, and I
measured this or I did this soil test and I determined this. It's not in there .

. Under Rule 4003.S(c), an expert is bound by his report. He cannot go beyond it. So
our objection is if he.intends to now change what his proposed testimony would be,
that he didn't rely upon Gateway or he didn't rely upon the soils report done by
others but.did his own investigation, it should have been in his report, and it wasn't.

See, H:T. Oay 1, at 13. The Court overruled the objection largely because Mr. Capo's report

indicated that he both investigated the site and relied upon attached outside reports from Gateway:

On October 13, 2015 and at the request of Mrs. Jean Nagy I performed an initial
review of the Versa-Lok Mosaic segmental retaining wall system located in the rear
yard of the property .... The following recommendations were made after the initial
site visit on October 13, 2015[.] ... In addition, Gateway Engineers supplied a site
plan with detailed elevations and this engineer included a wall numbering layout to
supplement the July 13, 2016 demolition review.
19
 . �: :· · .. t·
1 .

See, Robert J. ·¢iipo'�.. R(ip6tt', cl@.t�� Noyember ·9, ·201 i Based· po. these, referem:;e� •.Oef�ndaiit
. . ·:1 .

,d��riy had. sufficient notice _ef fhe content .and basis of Mr. Capo-•·s -�pfoion ..
. ·, .

b� D.ef.e1J��llf.s..S�c;9.n:d ,airS.co:��·O.bjection...., Mr, C.apo.'s Refer¢1we,t'o H.is: Qctob.�r:
.,. l�, 291s:
•
:Q.�p.
•
Qt,t within• hi� �Qvember 9�. 201:7 Report,
t
. � I . , .

Defe.n�_ant o_{?j�tt.ed a second time to Mr. Capo.�s te�timony,. ·sfatin_g that Mr. Capo coµ.I.d.

not. rceference,-a�. ()'cto�er 1?, .2(),15 report ·.("20 IS Jt.eport") he· had. writ.ten, See; H. t. Day 2,, af 80'.
De.f�l'!cfant·argued·th�t�e.sJite the O�tob.er·R-eport being referenced within Mt. C�po's N:ove�b.et

9� t017 report, Defen�aiit ·did not receive a copy· -ef .the 20l-5� Report and .fyfr. Capo, therefore,
l
. .
· sb.o�ld have ..been precluded from referring-to i� ..-fd., The Courtproperly overruled :D.efendant's'
I objec;:Oon, on the: grcn,m�� jhat the· November· 9; 2017 report substantially quoted the 2015'Reportis
'· I
I ,,•
recommendations and th�t �efenda:nt had sufficient -notiq� of �ha:t: Mr..Qlpo'·s .testimony- would
t •

entail,

e, Defendant':s 'Tltfrri_.'Fair S�<,pe :(Jbje_ctioil - M;r•. Capo's Rebuttal Testimony.,
Defend�])� ebjected' ,a: t�ird time te.Mr, Capo's testimony when Mr. Capo testified ·as a·
. �. -. . .

rebuttal witness to ,Mr; Marslco, Mr. Capo· was. rebutting Mr:.. Miil'$1<;0''s· testimony· regarding. "the
- .. I . f
...
slope of the pt�pet�Y·a:n4 v�1fous measurements-used to-calculate it1·1·w:1:1�n Defendant's counsel _
'
,obj�cted,, stating;
Your Hc;in,Qf, I'.qt.gd{ngto p\:iJect"a'iid -act1,11tilY. 1'10Ye to, ·strike·:a,ll of his· testllJ'I01':Y'
\'
· lie�u.s.e. none of :fl'i�' js::cqntained -witbfo his, expert .report, 1 realize he s.a rebuttal
',·.·.
.'.. witness .�tit· h_e ·<;.�n\ gp,ouf there �pd xe.buthis.o�I), r�po.rt which i$-what he 'is doing,
· .�. But there's n:othi�� 'in ·4ls report ... that has these-measurements or-discusses
l these walls or tal¥s ;apQut any ,ofthi�,
I!
. $.ee,.H:T. Day-�,•.lJJ 94,,:95,.:i07. the Court.ov.er.rµl�� thisthird objection becatis-e,Mr:.,CaplfWas:
, .. i permlt�e'ti.
.
f
t ,·

to .give :rebutt_�J testimony as of'right; The CQ\t�t further overruled. the objection \>�<;J1µse
. :
• .

i. Mt.' Capo was not ·•1,re}iµ((tin�j his\ own report," but instead .he: was rebutting Mr., Marsico':s
2-0
. \.

I
, .. .. I . .-: .. r, . 6,,· t·�.· ...
testimony. Regarding rebuttal testimony, the Pennsylvania Supreme Court has ruled that: "A

witness may ;,. be impeached with proof that on a previous occasion he made a statement.

inconsistent with his present testimony as well as by the testimony of other witnesses whose

version of the facts differ from that of the witness being impeached." Commonwealth v. Hamm,

378 A.2d· 1219, i226, n. 11 (Pa. 1977) (emphasis added). Furthermore, this Court has held that

"[a] litigant has the privilege of offering rebuttal testimony, and where the evidence proposed goes

to the impeachment _of the testimony of his opponent's witnesses, it is admissible as a matter of

right." Flowers v. Green, 420 Pa. 481, 484, 218 A.2d 219, 220 (1966) quoting Schoen v.Elsasser,

315 Pa. 65, 172 A. 301 (1934). ·

For the reasons addressed supra, the Court determined that Mr. Capo's testimony was

within the fair scope of his report and that Defendant was never prejudiced by unexpected

testimony or by "trial by ambush." The Court, therefore, properly denied Defendant's requests to

preclude Mr. Capo from testifying.

***

(Defendant's Matter Complained of on Appeal (g.): "This Honorable Court erred as a matter of
law and/or abused its discretion by entering a verdict against the weight of evidence, insofar as the
Court failed to take into account that not all walls were constructed negligently or were in breach
of contract, and insofar as the Court failed to take into account the age of the walls and
depreciation.") ·

6. The Court Properly Found by a Preponderance of the Evidence that Defendant was
Negligent and was Liable for Plaintiffs' Damages.

To succeed in a negligence action the plaintiff must prove by a preponderance of the

evidence "four elements: (1) the defendant had a duty to conform to a certain standard of conduct;

(2) the defendant breached that duty; .(3) such breach caused the injury in question; and (4) the

plaintiff incurred actual loss or damage." Pyeritz v. Com., 32 A.3d 687 (Pa. 2011) (citing Krentz
21
 v. Consolidated Rail Corp., 910 A.2d 20, 27 (Pa. 2006)).

The Court found by a preponderance of the evidence that Plaintiffs' Walls were clearly

· defective due to Defendant's negligent construction. Any impact that the Walls' age or

depreciation may have had on their structural integrity was eclipsed by Defendant's negligent and

defective workmanship. No evidence, furthermore, was presented regarding the "age" or

"depreciation" of the Walls.

Defendant owed a duty to Plaintiffs to construct the Walls in accord with industry standards

for VERSA-LOK retaining walls. Defendant breached its duty by undertaking a construction ·

project that required VERSA-LOK and geogrid when, as Mr. Gaglia admitted, he lacked the

experience to do so. See, H.T. Day 2, at 147. Mr. Gaglia, moreover, failed to engage an engineer

or seek permits as required for the project. See, H.T. Day 2, at 83.

Ms. Nagy credibly testified after completion of both .Phase 1 and Phase 2 of the Walls

" ... we were seeing splitting, leaning, [and] tilting." See, H.T. Day 1, at 48. Ms. Nagy also credibly

testified that the issues were occurring at " ... various points throughout the whole wall system, both

in Phase 1 and Phase 2 ... "

Plaintiffs' expert, Mr. Capo, credibly opined that within a reasonable degree of engineering

certainty that the Walls" ... did not follow the standards of practice for construction ... [.]" See, H.T.
Day 2, at 101. He further opined that the Walls were subject to a " ... fair amount of movement ... "

and were " ... coming apart ... " Id. At 74. Mr. Capo further testified that the Walls were built without

. in ."... one wall [that was] rebuilt at a later
required geogrid except .
date ... " where it was installed by

Defendant incorrectly. Id at 99. He further opined that the Walls were constructed without proper drainage.

Id. at 98.

The Court found, therefore, that Defendant breached its duty to follow the.required standard of care

in the construction of the Walls, that said breach caused the· faulty construction and deterioration of the

22
 •• ,I!
.1, t

\VaU�;:1md. ihat the: P.lii�liffs .suffered mQ.o�tacy damages as.� result,

i
*·* *

�
v, CONCLOSlON
• •••• 1 f

The Cour.f prilI �rly,
·•
ruled. "that'. 'th�;-$tatutes
.
of ;(Jmftatioiis· di