J-A02020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
APPALACHIAN TIMBER PRODUCTS, : IN THE SUPERIOR COURT OF
INC., AND SUMMIT FOREST : PENNSYLVANIA
RESOURCES, INC. :
:
:
v. :
:
:
LUTHER P. MILLER, INC. : No. 832 WDA 2019
:
Appellant :
Appeal from the Judgment Entered May 20, 2019
In the Court of Common Pleas of Somerset County Civil Division at
No(s): No. 613 Civil 2015
BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY OLSON, J.: FILED MAY 27, 2020
Appellant, Luther P. Miller, Inc., appeals from the judgment entered on
May 20, 2019 following a jury trial that produced a verdict in favor of
Appalachian Timber Products, Inc. and Summit Forest Resources, Inc.
(collectively referred to as “Appalachian Timber”) on breach of contract claims.
We affirm.
The trial court summarized the facts and procedural history of this case
as follows:
This case began with [Appalachian Timber] filing a complaint
[against Appellant] on October 16, 2015 asserting claims for
breach of contract and fraud. [Appalachian Timber] alleged
that[,] from 2005 to October 6, 2014[,] Appellant engaged in a
scheme in which Appellant billed [Appalachian Timber] for
[gallons of fuel that] Appellant knowingly failed to deliver to
[Appalachian Timber’s] sawmill facility located [in] Markleysburg,
Pennsylvania. Accordingly, [Appalachian Timber] requested
J-A02020-20
damages totaling $429,447.38 representing 33 1/3 % of the fuel
gallons [for which Appalachian Timber paid but Appellant failed to
deliver]. Appellant filed [its] answer and new matter on
December 11, 2015 in which [it] averred [it] did not breach the
agreement between the parties, nor made any false
representations to [Appalachian Timber] regarding fuel delivery.
Appellant further contended that an internal investigation
conducted by Appellant following [Appalachian Timber’s]
allegations disclosed no irregularities in [the] amount of fuel
delivered to [Appalachian Timber].
* * *
[The trial court] conducted a pre-trial conference with the parties
on October 5, 2018, following which, Appellant filed a motion in
limine to exclude witness testimony and a motion in limine to
exclude irrelevant documentary evidence on October 12, 2018.
With respect to [] Appellant’s motion and brief in support related
to alleged irrelevant witness testimony, Appellant contended[,
inter alia, that] eight of [Appalachian Timber’s] proposed
witnesses would offer testimony prohibited by Pa.R.E. 40[4](b)
regarding improper use of character evidence. According to
[Appalachian Timber], the proffered testimony of the witnesses at
issue only served to “explain the complete picture of the scheme
carried out by [Appellant],” and therefore did not run afoul of
Pa.R.E. 40[4](b) restrictions on “other act” character evidence.
As outlined in their brief in opposition, [Appalachian Timber]
averred that many of the witnesses would describe analogous
instances in which Appellant billed other entities for gallons of fuel
which Appellant did not ultimately deliver. Following oral
argument on Appellant’s motions, [the trial court] issued an order
granting Appellant’s motion in limine in part, but denying the
motion with respect to the testimony of Wayland King, a
representative of R.W. Frazee Trucking, and two [of Appellant’s]
former employees, Bob Shope and Jason Gibbs. On October 22,
2018, [the trial court] ordered that the case be scheduled for a
three-day jury trial.
Prior to the start of trial, [the trial court] granted [Appalachian
Timber’s] motion to amend complaint, in which [Appalachian
Timber] identified numerous errors contained within the original
complaint filed October 16, 2015, thereby altering the total sum
of damages requested. Consequently, the amended complaint
averred that, on average, Appellant delivered 42% less fuel
gallons per delivery to [Appalachian Timber] than was required by
-2-
J-A02020-20
agreement – and for which [Appalachian Timber was] ultimately
billed and paid for – and amended [its] claim for damages to
reduce the total sum claimed to $416,268.95. The case
proceeded to a jury trial on November 5-7, 2018. At the close of
[Appalachian Timber’s] case, Appellant moved for a nonsuit and
directed verdict, which [the trial court] denied. At the conclusion
of the trial, the jury entered a verdict in favor of [Appalachian
Timber] in the amount of $416,286.00.
Appellant filed [a] motion for post-trial relief on November 19,
2018, arguing that (1) the evidence presented at trial was
insufficient to establish the elements of [Appalachian Timber’s]
breach of contract claim; (2) the jury’s verdict was against the
weight of the evidence; (3) the [trial c]ourt’s admission of the
testimony of Wayland King required a new trial; and (4) the jury’s
damage [] award was substantially larger than warranted by the
evidence and [required remittance]. On May 9, 2019, [the trial
court] issued an order denying [Appellant’s] motion for post-trial
relief. Appellant filed [a] notice of appeal on May 30, 2019. On
May 31, 2019, [the trial court] ordered [] Appellant [to] file a
concise statement of errors complained of on appeal, pursuant to
Pa.R.A.P. 1925(b), with which [Appellant] complied [] on June 20,
2019.
Trial Court Opinion, 8/15/2019, at 1-4 (record citations and superfluous
capitalization omitted).
On appeal, Appellant presents the following issues for our review:
I. Did the trial court err and/or abuse its discretion in
admitting testimony from a non-party witness who testified
that Appellant committed similar bad acts in its dealings
with the non-party as Appellant allegedly committed in its
dealings with [Appalachian Timber]?
II. Did the trial court err and/or abuse its discretion in denying
Appellant’s request for judgment notwithstanding the
verdict [(JNOV)], where there was insufficient evidence
supporting the jury’s verdict regarding any pre-2011 breach
of contract and damages?
Appellant’s Brief at 5.
-3-
J-A02020-20
In its first issue presented, Appellant claims that the trial court erred by
failing to grant its motion in limine to exclude Wayland King, a representative
from R.W. Frazee Trucking, from testifying that Appellant billed a third-party
entity for undelivered fuel. Appellant’s Brief at 10-19. Appellant contends
that Appalachian Timber sought to prove its case by showing Appellant
engaged in a similar act, at a different time, in order to establish that Appellant
acted in conformity with that prior act in the current case. Id. at 11-12.
Appellant further contends that “[t]his evidence was inadmissible, as it was
irrelevant, unduly prejudicial, and impermissible ‘bad act’ evidence that should
have been excluded.” Id. at 10. Appellant argues that “[t]he trial court’s
decision to admit Mr. King’s testimony under Rule of Evidence 404(b)(2) was
error and/or an abuse of discretion[, because n]one of the exceptions listed in
Rule [] 404(b)(2), or otherwise embodied in the case law, applies here.” Id.
at 15. Appellant maintains that this matter entails an action for breach of
contract and damages between Appellant and Appalachian Timber, “neither of
which had anything to do with Mr. King’s employer” and that “a common
scheme or plan was not at issue.” Id. Appellant concludes that it was
prejudiced by the introduced testimony and is entitled to a new trial. Id. at
18.
We adhere to the following standard of review:
Admission of evidence is within the sound discretion of the trial
court and we review the trial court's determinations regarding the
admissibility of evidence for an abuse of discretion. To constitute
reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party. For
-4-
J-A02020-20
evidence to be admissible, it must be competent and relevant.
Evidence is competent if it is material to the issue to be
determined at trial. Evidence is relevant if it tends to prove or
disprove a material fact. Relevant evidence is admissible if its
probative value outweighs its prejudicial impact. The trial court's
rulings regarding the relevancy of evidence will not be overturned
absent an abuse of discretion.
Pursuant to Rule of Evidence 402, relevant evidence is generally
admissible, and irrelevant evidence is inadmissible. Further,
relevant evidence may be excluded if its probative value is
outweighed by its potential for unfair prejudice, defined as a
tendency to suggest decision on an improper basis or to divert the
jury's attention away from its duty of weighing the evidence
impartially.
Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1058 (Pa.
Super. 2015) (citation omitted).
Moreover, pursuant to Pennsylvania Rule of Evidence 404(b):
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person's character in order
to show that on a particular occasion the person acted in
accordance with the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of
mistake, or lack of accident. In a criminal case this evidence
is admissible only if the probative value of the evidence
outweighs its potential for unfair prejudice.
Pa.R.E. 404(b).
An en banc panel of this Court has explained:
Evidence of prior [acts] is not admissible for the sole purpose of
demonstrating a [] propensity to commit [other acts].
Nevertheless, evidence may be admissible in certain
circumstances where it is relevant for some other legitimate
purpose and not utilized solely to blacken a defendant’s character.
-5-
J-A02020-20
Specifically, other [bad acts] evidence is admissible if offered for
a non-propensity purpose, such as proof of an actor's knowledge,
plan, motive, identity, or absence of mistake or accident. When
offered for a legitimate purpose, evidence of prior [acts] is
admissible if its probative value outweighs its potential for unfair
prejudice.
When ruling upon the admissibility of evidence under the common
plan exception, the trial court must first examine the details and
surrounding circumstances of each [] incident to assure that the
evidence reveals [] conduct which is distinctive and so nearly
identical as to become the signature of the same perpetrator.
Relevant to such a finding will be the habits or patterns of action
or conduct undertaken by the perpetrator [], as well as the time,
place, and types of victims typically chosen by the perpetrator.
Given this initial determination, the court is bound to engage in a
careful balancing test to assure that the common plan evidence is
not too remote in time to be probative. If the evidence reveals
that the details of each [] incident are nearly identical, the fact
that the incidents are separated by a lapse of time will not likely
prevent the offer of the evidence unless the time lapse is
excessive. Finally, the trial court must assure that the probative
value of the evidence is not outweighed by its potential prejudicial
impact upon the trier of fact.
Commonwealth v. Tyson, 119 A.3d 353, 358–359 (Pa. Super. 2015) (en
banc).
Our Supreme Court “has also recognized the res gestae exception,
permitting the admission of evidence of other crimes or bad acts to tell ‘the
complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 665, 624 Pa.
143, 157 (Pa. 2014). Recently, we reiterated that evidence pursuant to
Pa.R.E. 404(b)(2) is admissible in civil proceedings. See Hoak v. Newton,
2019 WL 3302614 (Pa. Super. July 23, 2019),1 citing Homewood People’s
____________________________________________
1See Pa.R.A.P. 126(b) (unpublished non-precedential memorandum decisions
of the Superior Court filed after May 1, 2019 may be cited for their persuasive
value).
-6-
J-A02020-20
Bank v. Marshall, 72 A. 627 (Pa. 1909). Appellant concedes that Rule 404(b)
is applicable in the civil context. See Appellant’s Brief at 11.
On this issue, the trial court determined:
With respect to King, an employee of R.W. Frazee Trucking,
[Appalachian Timber] averred that the witness would describe a
scenario involving Appellant which closely resembled the facts
underlying [Appalachian Timber’s] claim in the instant matter. As
[Appalachian Timber] noted, King observed a delivery truck
belonging to Appellant arrive at his employer’s facility and begin
pumping fuel into a holding tank with roughly 300 gallons of fuel
already registered on the delivery truck’s fuel meter. According
to King, the driver of the delivery truck was Rodney Kreger – the
same driver that delivered fuel to [Appalachian Timber] from
Appellant’s Confluence branch. [In permitting King’s testimony,
the trial court] noted the undeniable parallels among the
allegations set forth by King, and those which formed the basis of
[Appalachian Timber’s] claim against Appellant.
* * *
At trial, King provided testimony regarding two incidents in which
Rodney Kreger, on behalf of Appellant, delivered fuel to R.W.
Frazee Trucking at their facility in Addison, Pennsylvania. With
respect to both incidents, King stated that he witnessed Kreger
pull into the facility, drive directly to the fuel tank and begin filling
the tanks. According to King, before Kreger began pumping fuel
on both occasions, the fuel meter on the delivery truck already
registered roughly 250 and 175 gallons of fuel respectively. When
asked whether the number of registered gallons reset to “zero”
upon Kreger commencing the fuel delivery at the facility, King
responded, “No.” King informed the owner of R.W. Frazee
Trucking, Rick Frazee, who confronted Kreger about the
discrepancy. As a result, Kreger was required to alert King each
time he delivered fuel to the Frazee facility to ensure that the fuel
pump meter was reset to “zero” prior to filling the fuel tank. Both
events were alleged to have occurred within a week or two of each
other in the summer or spring of 2014.
Similarly, John Merschat, owner of [Appalachian Timber], testified
at trial to fuel delivery problems involving Appellant and Rodney
Kreger at his sawmill located in Markleysburg, Pennsylvania. As
-7-
J-A02020-20
Merschat recalled, a manager of Appalachian Timber, Craig
Squibb, initially informed Merschat of a discrepancy involving 300
gallons of fuel reported[ly delivered to the sawmill, but for which
receipt could not be confirmed]. Following a discussion on the
matter, Merschat decided to address the issue with Rodney Kreger
at his next-scheduled fuel delivery. On October 6, 2014, Merschat
observed Kreger arrive at the Appalachian Timber facility and
proceed to a fuel tank on the premises. Merschat proceeded to
where the delivery truck was parked, estimating the time that
elapsed between when Kreger parked the delivery truck and when
Merschat arrived at the truck’s location to be about 15 seconds.
When Merschat arrived, fuel was already being pumped into the
fuel tank, but Kreger was not standing at the delivery truck.
Merschat was surprised to find that the meter on the fuel pump
indicated 330 gallons had already been pumped into the fuel tank
– an amount Merschat believed to be impossible given that little
time had elapsed after Kreger parked the delivery truck. Indeed,
as Kreger’s testimony would later establish, the delivery truck
typically pumped fuel at a rate of between 60 to 80 gallons a
minute. When Kreger returned to the truck, Merschat confronted
Kreger about the discrepancy and asked him to leave the
premises.
* * *
As [] detailed above, the incidents described by both Merschat and
King regarding discrepancies in fuel delivered by Appellant are
remarkably similar and occurred relatively close in time to one
another in 2014. As testimony established at trial, Appalachian
Timber and [] King’s employer, R.W. Frazee Trucking, are also
located in close [physical] proximity to one another, and were
serviced by the same regional fuel delivery facility operated by
Appellant in Confluence, Pennsylvania. Kreger regularly delivered
fuel to both entities on behalf of Appellant, and more importantly,
delivered fuel to both facilities during the incidents giving rise to
the case sub judice. Lastly, [] King and Merschat provided
strikingly similar testimony regarding Appellant’s manner and
method of fuel delivery at both facilities – dispensing fuel without
resetting the fuel pump meter to “zero” – and failing to account
for such discrepancies when billing for any undelivered fuel.
Trial Court Opinion, 8/15/2019, at 6-9 (record citations omitted).
-8-
J-A02020-20
Upon review, we discern no abuse of discretion or error of law in
admitting the other acts evidence at issue. Appellant defended against liability
by asserting delivery of all fuel for which it billed Appalachian Timber.
Appellant’s Brief at 15. This defense squarely placed opportunity, preparation,
and planning at issue during the trial. The commonality of factors between
the incidents at Frazee Trucking and those at Appalachian Timber tended to
show that Appellant possessed the capacity to pursue and execute a common
scheme to deliver less fuel to Appalachian Timber, and other customers, than
contractually obligated. The shared factors also dispelled the notion that the
incidents were merely coincidental mistakes or accidents. Taken together with
the evidence offered by Merschat, King’s testimony showed that the same
driver delivered less fuel to two of Appellant’s customers by failing to reset
the delivery truck pump to zero before dispensing fuel. This evidence
developed a logical connection between the episodes and showed it to be more
probable than not that the events occurred as a result of coordinated
preparation and planning by a single perpetrator. The repeated and consistent
actions of the same delivery driver employing identical methods to “short”
Appellant’s customers on their fuel requirements was relevant to establish
both Appellant’s opportunity and its intentional pursuit of in a common scheme
to deliver less fuel than agreed upon. Moreover, King’s testimony was proper
under the res gestae exception to prior bad acts, in order to tell the complete
story of Appellant’s dealings. For all of the foregoing reasons, we discern no
-9-
J-A02020-20
abuse of discretion or error of law by the trial court in admitting the evidence
at issue. As such, Appellant’s first issue is without merit.
Next, Appellant contends that the trial court abused its discretion or
erred as a matter of law by failing to grant a JNOV. Appellant maintains that
although Appalachian Timber claimed damages for breach of contract for fuel
deliveries from 2005 through 2014, it failed to provide sufficient evidence of
fuel delivery invoices or logs predating 2011. Appellant’s Brief at 19-22. More
specifically, Appellant points to Exhibits 1 and 11 as presented by Appalachian
Timber at trial, to support its claim that Appalachian Timber did not submit
evidence of damages predating 2011. Id. at 20-21. As such, Appellant posits:
In short, for the period before 2011, Appalachian [Timber]
introduced at trial no direct or substantial evidence, whether
documentary or testimonial in nature, establishing the amount of
fuel [Appellant] delivered, the amount of money Appalachian
[Timber] paid for that fuel [], and any discrepancy between the
two. Without such evidence, for that period, any verdict in
Appalachian [Timber’s] favor against [Appellant] for breaching the
parties’ contract by delivering less fuel than that for which
Appalachian [Timber] was billed was based purely on speculation
and conjecture, rather than admissible evidence, circumstantial or
otherwise.
Id. at 21-22 (citation omitted). Accordingly, Appellant requests this Court
remand this case for entry of judgment in its favor or, alternatively, order a
reduction of the adverse judgment by an amount equal to all damages
allegedly stemming from pre-2011 deliveries. Id. at 22.
Our standard of review of a denial of a motion for JNOV is well-settled:
Appellate review of a denial of JNOV is quite narrow. We may
reverse only in the event the trial court abused its discretion or
- 10 -
J-A02020-20
committed an error of law that controlled the outcome of the case.
Abuse of discretion occurs if the trial court renders a judgment
that is manifestly unreasonable, arbitrary or capricious; that fails
to apply the law; or that is motivated by partiality, prejudice, bias
or ill-will.
When reviewing an appeal from the denial of a request for JNOV,
the appellate court must view the evidence in the light most
favorable to the verdict-winner and give him or her the benefit of
every reasonable inference arising therefrom while rejecting all
unfavorable testimony and inferences.... Thus, the grant of a
judgment n.o.v. should only be entered in a clear case and any
doubts must be resolved in favor of the verdict-winner.
Furthermore, it is only when either the movant is entitled to
judgment as a matter of law or the evidence was such that no two
reasonable minds could disagree that the outcome should have
been rendered in favor of the movant that an appellate court may
vacate a jury's finding.
Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932
(Pa. Super. 2013) (citations, quotations, and brackets omitted).
Our Supreme Court has held:
Where one party to a contract without any legal justification,
breaches the contract, the other party is entitled to recover,
unless the contract provided otherwise, whatever damages he
suffered, provided (1) they were such as would naturally and
ordinarily result from the breach, or (2) they were reasonably
foreseeable and within the contemplation of the parties at the time
they made the contract, and (3) they can be proved with
reasonable certainty.
The purpose of a damage award is to place the non-breaching
party as nearly as possible in the same position it would have
occupied had there been no breach.
Helpin v. Trustees of Univ. of Pennsylvania, 10 A.3d 267, 270 (Pa. 2010)
(citations and quotations omitted). “The law does not permit a damages
- 11 -
J-A02020-20
award to be based on mere guesswork or speculation, but rather requires a
reasonable basis to support such an award.” Id.
Additionally, as this Court has previously determined:
The general rule in this Commonwealth is that the plaintiff bears
the burden of proof as to damages.
The determination of damages is a factual question to be decided
by the fact-finder. The fact-finder must assess the testimony, by
weighing the evidence and determining its credibility, and by
accepting or rejecting the estimates of the damages given by the
witnesses.
Although the fact-finder may not render a verdict based on sheer
conjecture or guesswork, it may use a measure of speculation in
estimating damages. The fact-finder may make a just and
reasonable estimate of the damage based on relevant data, and
in such circumstances may act on probable, inferential, as well as
direct and positive proof.
Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564–565 (Pa. Super. 2004)
(citation omitted).
Finally, we have concluded:
The test of whether damages are remote or speculative has
nothing to do with the difficulty in calculating the amount, but
deals with the more basic question of whether there are
identifiable damages.
Thus, damages are speculative only if the uncertainty concerns
the fact of damages rather than the amount.
Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 572 (Pa. Super. 2007)
(citation, brackets and ellipsis omitted).
The trial court determined that Appalachian Timber presented sufficient
evidence for the jury to estimate actual loss:
- 12 -
J-A02020-20
[Appalachian Timber presented] testimony and records from [its]
own facility detailing the amount of fuel reported to have been
delivered by Appellant, fuel usage at the Appalachian Timber
facility, and Appalachian Timber’s product output. Leslie
Hutchinson, a bookkeeper at Appalachian Timber, testified that
she noted discrepancies beginning in 2011, after observing that
the number of fuel gallons delivered by Appellant far exceeded the
number of gallons utilized by Appalachian Timber during its
regular course of business. After Appalachian Timber utilized a
different fuel delivery provider in October of 2014, Hutchinson
testified that the number of fuel gallons for which Appalachian
Timber was billed for similar production output decreased
significantly. Likewise, John Merschat provided testimony
regarding the average sum of fuel consumed [at] the sawmill in a
month compared to the total sum delivered by Appellant. As
Merschat noted, taken together, the records compiled by
Appalachian Timber [suggest] that Appellant delivered 42% less
than was ultimately billed to Appalachian Timber beginning in
2005. Accordingly, based upon this percentage, Merschat
calculated Appalachian Timber’s damages to be approximately
$416,286.95.
Trial Court Opinion, 8/15/2019, at 14.
Accordingly, the trial court determined that the jury did not base its
award upon speculation, but rather an estimate of damages based upon the
evidence of record:
The testimony of John Merschat provided extensive evidence,
which the jury was free to believe, regarding the estimated
number of gallons of fuel consumed by the sawmill versus the
amount of fuel delivered by Appellant beginning in 2005. In doing
so, Merschat testified that between 2005 and October 2014,
Appellant delivered [] approximately 42% less fuel than was
represented on delivery receipts Appellant submitted to
Appalachian Timber. In support of this allegation, Merschat
provided testimony regarding Appalachian Timber’s average
monthly fuel consumption, product output, efficiency of machinery
operated by the sawmill, and the precise number of gallons
delivered to Appalachian by Appellant beginning in 2011.
Furthermore, [Appalachian Timber] presented evidence regarding
a substantial improvement in fuel efficiency after Appalachian
- 13 -
J-A02020-20
Timber began receiving fuel deliveries from another fuel delivery
service, despite the fact that [Appalachian Timber] did not make
any changes in the manner in which it operated its sawmill and
equipment. As Merschat noted, the seeming increase in machine
efficiency was particularly notable given the fact that the machines
operated by the sawmill had aged and would presumably be less
efficient. From these figures, [the trial court] believe[d] the jury
was able to make a just and reasonable estimate of damages for
fuel delivery discrepancies dating back to 2005, based upon the
evidence and testimony provided by [Appalachian Timber].
Id. at 16-17 (record citations omitted).
Upon review, we agree. Initially, we note that upon our review of the
certified record, Appalachian Timber’s Exhibit #1 confirms that it only
presented invoices and canceled checks for the sale of fuel from 2011-2014.
Moreover, in calculating the 42% alleged shortage, Merschat testified that he
relied solely upon record data from 2011-2014. N.T., 11/5/2018, at 132.
However, Merschat also testified that the total amount paid to Appellant
during the course of the parties’ entire business relationship, from 2005 until
2014, totaled $991,159.40. Id. at 103. Merschat and his bookkeeper, Leslie
Hutchinson, “added up all of the fuel deliveries from [Appellant] on a monthly
basis, and [] averaged them out” to determine that Appalachian Timber
purchased “733.8 gallons” of fuel per week during the period from 2005 until
2014. Id. at 92. This evidence was uncontested and Appellant does not
currently challenge it. As such, we flatly reject Appellant’s suggestion that
there was no evidence of the amount of money Appalachian Timber paid
Appellant or the amount of fuel allegedly purchased.
- 14 -
J-A02020-20
Additionally, after Appalachian Timber changed fuel providers, Merschat
realized that Appalachian Timber was using approximately 300 gallons of fuel
per week less than previously thought. Id. at 79, 96. Merschat explained
how much fuel each machine in the timber mill used per week. Id. at 83.
Appalachian Timber purchased each of those machines before 2005 and
continued using them after Appellant stopped delivering fuel in 2014. Id. at
88-92. Merschat averaged the timber mill’s monthly fuel consumption and
compared it with the amount of fuel purchased monthly from Appellant. Id.
at 92. Using those calculations, Merschat confirmed that Appellant failed to
deliver 308 gallons of fuel per week during the entire period relevant to the
jury’s damage calculation. Id. at 94. Those figures taken together
represented a shortage of 42%. Id. at 96. Forty-two percent of the total
amount paid to Appellant over the 2005-2014 period, represented the amount
of damages requested at trial. Id. at 104. Accordingly, we conclude that this
evidence sufficiently established the discrepancy between the amount paid
and the fuel received.
Finally, Appellant posits that the amount of the award of damages was
speculative. However, as stated above, damages are speculative only if the
uncertainty concerns the fact of damages rather than the amount. Appellant
does not suggest that there were no identifiable damages in this matter.
Moreover, as we discussed in the first issue presented, this case dealt with a
scheme wherein it was difficult to ascertain precisely how much fuel was
actually delivered. Evidence revealed that Appellant’s delivery driver would
- 15 -
J-A02020-20
pump fuel without first resetting the delivery truck’s pump to zero. Without
knowing the true starting point of the delivery pump setting for each delivery,
there was no direct evidence of the precise amount of fuel Appalachian Timber
actually received over the course of the parties’ business dealings.
Appalachian Timber was able to determine the number of gallons of fuel it
consumed for production when it changed service providers. In turn,
Appalachian Timber was then able to estimate the amount of fuel delivered by
Appellant. More specifically, an evaluation of the total amount paid by
Appalachian Timber as compared with the estimated amount of fuel delivered,
provided the jury with the reasonable means to estimate its award. As such,
we conclude that the jury’s award was not based upon speculation and a JNOV
was not warranted. Hence, Appellant is not entitled to relief.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/27/2020
- 16 -