J-S04017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANTHONY DIGUGLIELMO, ET AL. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
CHRISTOPHER R. CAPEN, ET AL. : No. 1400 EDA 2021
Appeal from the Judgment Entered June 9, 2021
In the Court of Common Pleas of Montgomery County
Civil Division at 2017-22626
BEFORE: BENDER, P.J.E., MURRAY, J., and STEVENS, P.J.E.*
MEMORANDUM BY MURRAY, J.: FILED MARCH 07, 2022
Anthony DiGuglielmo (DiGuglielmo) and Abruzzi Stone and Flooring, LLC
(Abruzzi) (collectively, Appellants), appeal the judgment of $33,696.00
entered against them and in favor of Christopher R. Capen (Capen), Charles
T. Wambold (Wambold), and Wall to Wall Custom Design Management (Wall
to Wall) (collectively, Defendants), in this breach of contract action.1 We
affirm.
Defendant Wall to Wall is a Pennsylvania company in the business of
general contracting, construction, remodeling and renovation of residential
and commercial buildings. See Trial Court Opinion, 10/14/21, at 3. Capen
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* Former Justice specially assigned to the Superior Court.
1 We have corrected the caption to include Abruzzi..
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and Wambold are the co-owners and only employees of Wall to Wall. Id. In
April 2017, a fabricator providing services to Wall to Wall introduced Wambold
and Capen to Appellants. Id. “Originally, DiGuglielmo on behalf of Abruzzi
agreed to fabricate and install granite countertops for Wall to Wall.” Id. at 4.
After Abruzzi completed the installation, Wambold, on behalf of Wall to Wall,
sent more jobs to Abruzzi. Id.
As the relationship between Appellants and Defendants progressed,
Capen and Wambold planned to rent office space at Abruzzi’s building. Id.
However, a fire damaged the Abruzzi building. Id. Several companies
provided remediation services for smoke and water damage, including Wall to
Wall and a company owned by Wambold, Wambold Cleaning. Id. The scope
and cost of the work “was determined by an oral agreement between Capen,
Wambold and DiGuglielmo.” Id. at 5.
Problems subsequently developed relating to the documentation and
payment of Appellants’ invoices. Id. at 5-6. The trial court explained,
“[b]eginning in May, as the number of jobs increased, so, too, did the amount
of debt Wall to Wall owed to [Appellants]. Wambold testified that he and
Capen specifically explained to DiGuglielmo that when Wall to Wall got paid,
[Appellants] got paid.” Id. at 6.
In June 2017, Appellants orally agreed to the continuous contract with
Defendants. Id. at 7. As part of the contract, the parties signed a secured
promissory note (promissory note) drafted by Appellants. Id. Under the
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promissory note, Capen and Wambold agreed to pay DiGuglielmo the principal
sum of $40,545.00, for outstanding labor and materials provided at all the job
sites. Id. (citing Promissory Note, 6/14/17). The promissory note provided
“time is of the essence,” but did not include a due date for the payment. Id.
(citing Promissory Note, 6/14/17, at 3, Section 8, Trial Exhibit P-3). The
promissory note charged 1.5 percent (1.5%) interest and reasonable counsel
fees. Id. (citing Promissory Note, 6/14/17 at Section 2, 10, Trial Exhibit P-
3). The continuous contract and the invoices underlying the debt were not
referenced in or attached to the promissory note. Id.
In June and July 2017, Defendants paid the invoices provided by
Appellants and issued payments on the promissory note. Id. at 8-9. On July
6, 2017, Appellants sent two emails demanding that the outstanding balance
be paid that day, or the account would go to collection. Id. at 9.
On September 15, 2017, Appellants filed a complaint against
Defendants asserting causes of action for breach of contract, breach of the
promissory note, violation of the Pennsylvania Contractor and Subcontractor
Payment Act (CASPA),2 and unjust enrichment. Appellants sought $43,794.00
plus interest, costs, and counsel fees. Appellants subsequently filed an
amended complaint listing specific amounts due for work performed at seven
job sites, totaling $43,794.00. Amended Complaint, 11/3/17, ¶¶ 13, 15, 18.
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2 See 73 P.S. §§ 501-516.
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Defendants filed an answer and counterclaim. Answer and Counterclaim,
3/18/20. Defendants asserted Appellants had “failed to meet required
deadlines per the construction schedule as well as provide industry standard
quality control of the installation and materials.” Id. ¶ 21. Defendants
challenged the amounts claimed by Appellants and alleged Appellants “used
unsound accounting practices.” Id. ¶ 22. Defendants also asserted the
defense of payment. See id. ¶¶ 64-72. Defendants’ counterclaim averred
(1) Appellants failed to pay Wall to Wall for fire remediation work; (2)
Appellants were unjustly enriched by Wall to Wall’s remediation work; and (3)
Wall to Wall incurred financial sanctions resulting from delays caused by
Appellants’ deficient work and materials. See generally, id. ¶¶ 90-114.
The matter proceeded to a bench trial, after which the trial court entered
verdicts against Appellants on all of their causes of action. Decision, 3/18/21,
¶¶ 98, 109, 116, 122, 129. The trial court also found against Defendants on
their counterclaim for breach of contract. Id. ¶ 116. However, the trial court
awarded Defendants $33,696.00 on their counterclaim for unjust enrichment.
Id. ¶¶ 135-36. The trial court denied all claims for counsel fees. Id. ¶ 136.
Appellants timely filed post-trial motions for a new trial and judgment
notwithstanding the verdict. Post-Trial Motions, 3/19/21. On June 9, 2021,
the trial court entered an order denying Appellants’ post-trial motions.
Appellants timely appealed. Appellants and the trial court have complied with
Pa.R.A.P. 1925.
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Appellants present the following issues for our review:
1. Whether the trial court abused its discretion and made an error
of law concluding that the verdict was not contrary to the evidence
presented at trial in connection with plaintiff Anthony
DiGuglielmo’s breach of contract claim set forth against
defendants Christopher R. Capen and Charles T. Wambold
appearing in Counts I and II of the plaintiffs’ Amended Complaint?
2. Whether the trial court abused its discretion and made an error
of law concluding that the verdict was not contrary to the evidence
presented at trial in connection with plaintiff Abruzzi Stone &
Flooring, LLC’s breach of contract claim set forth against
defendant Wall to Wall Custom Design Management appearing in
Count III of the plaintiffs’ Amended Complaint?
3. Whether the trial court abused its discretion and made an error
of law concluding that the verdict was not contrary to the evidence
presented at trial in connection with plaintiff Abruzzi Stone &
Flooring, LLC’s unjust enrichment claim set forth against
defendant Wall to Wall Custom Design Management appearing in
Count V of the plaintiffs’ Amended Complaint?
4. Whether the trial court abused its discretion and made an error
of law concluding that the verdict was not contrary to the evidence
presented at trial in connection with plaintiff Abruzzi Stone &
Flooring, LLC’s claim that defendant Wall to Wall Custom Design
Management violated Section 507 of the Pennsylvania Contractor
and Subcontractor Payment Act, 73 P. S. § 501, et seq. appearing
in Count IV of the plaintiffs’ Amended Complaint?
5. Whether the trial court abused its discretion and made an error
of law concluding that the verdict was not contrary to the evidence
presented at trial in connection with defendant Wall to Wall
Custom Design Management’s counterclaim asserted against
plaintiff, Abruzzi Stone & Flooring, LLC, and entering judgment in
favor of defendant Wall to Wall Custom Design Management and
against plaintiff, Abruzzi Stone & Flooring, LLC in the amount
equal to $33,696.00?
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Appellants’ Brief at 4-5 (issues renumbered).3
Our standard of review in non-jury cases is limited to:
a determination of whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in the application of law. Findings of the trial
judge in a non-jury case must be given the same weight and effect
on appeal as a verdict of a jury and will not be disturbed on appeal
absent error of law or abuse of discretion….
Kowalski v. TOA PA V, L.P., 206 A.3d 1148, 1159 (Pa. Super. 2019)
(citation omitted). This Court respects a trial court’s findings
regarding credibility and weight of the evidence “unless the appellant can
show that the court’s determination was manifestly erroneous, arbitrary and
capricious or flagrantly contrary to the evidence.” Id. at 1160 (citation
omitted).
Appellants challenge the weight of the evidence.4 See Appellants’ Brief
at 4-5.
Appellate review of a weight claim is a review of the [trial court’s]
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the trial
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3Although Appellants’ statement of questions lists five issues, their argument
section sets forth one issue, comprised of 13 subsections, in contravention of
Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as there
are questions to be argued[.]”).
4 The trial court correctly concluded Appellants waived any challenge to the
sufficiency of the evidence by failing to present a motion for a directed verdict.
See Trial Court Opinion, 10/14/21, at 21; see also Wag-Myr Woodlands
Homeowners Assoc. by Morgan v. Guiswite, 197 A.3d 1243, 1250 n.10
(Pa. Super. 2018) (“to preserve the right to request judgment notwithstanding
the verdict (JNOV), a party must first … move for a directed verdict or
compulsory non-suit.”).
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judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the evidence
and that a new trial should be granted in the interest of justice.
In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013) (citation
omitted).
We address Appellants’ first and second issues together. Appellants
claim the verdicts are against the weight of the evidence as to their breach of
contracts actions. Appellants’ Brief at 4. Appellants argue that, at the time
they executed the promissory note, Defendants owed Appellants $40,545.00,
the amount reflected in the promissory note. Id. at 17. Appellants claim the
promissory note “serves as an admission by [Defendants] and convincing
proof that a principal outstanding debt structure equal to $40,545.00 was
accrued by [Defendants] … and remained unpaid.” Id.
Appellants also argue Defendants owe $1,514.00 for Invoice
# 062317AA, and $1,549.00 for Invoice # 062317B. Id. at 19. Appellants
therefore claim an aggregate unpaid debt of $43,608.00 based on the invoices
and promissory note. Id. In addition, Appellants assert Defendants owe
$10,018.86 in interest on the unpaid debt, resulting in a balance due of
$53,626.86. Id. at 20. Appellants acknowledge Defendants’ payments
through Wall to Wall check numbers 1067 ($3,900.00), 1072 ($7,617.00),
and 1076 ($9,156.00). Id. at 22-24. As a result, Appellants claim a reduced
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unpaid balance due of $32,953.86. Id. at 24. Appellants rely on admissions
by Capen and Wambold that the invoices presented at trial represented “a
request for the payment for services performed and materials supplied” by
Appellants to Defendants. Id. at 25.
As this Court has explained:
“Three elements are necessary to plead properly a cause of action
for breach of contract: ‘[(1)] the existence of a contract, including
its essential terms, (2) a breach of a duty imposed by the contract
and (3) resultant damages.’” Williams v. Nationwide Mut. Ins.
Co., 750 A.2d 881, 884 (Pa. Super. 2000) (citation omitted). … A
party claiming breach must establish its elements by a
preponderance of the evidence. Snyder v. Gravell, 446 Pa.
Super. 124, 666 A.2d 341, 343 (Pa. Super. 1995).
Discover Bank v. Booker, 259 A.3d 493, 495-96 (Pa. Super. 2021).
Instantly, the trial court rejected Appellants’ breach of contract claims,
finding:
On June 22, 2017, Wall to Wall submitted check number 1068 to
DiGuglielmo in the amount of $8,057.00, dated June 23, 2017,
and referencing … invoice numbers 060217AA and 060117AC.
([N.T., 12/10/20], at 40, 205; … Trial Exhibit P-26). Although
Capen and Wambold asked DiGuglielmo to hold the postdated
check for one day, Abruzzi presented the check for payment that
same day, resulting in Wall to Wall having insufficient funds in
their bank account to cover the check. (Id. at 40, 44, 45, 169-
70 …).
When DiGuglielmo summoned Capen and Wambold to
complain about the bounced check, Capen and Wambold drove to
a TD Bank … to withdraw $8,057.00 and $6,500.00 in cash, … and
paid DiGuglielmo in cash. ([Id.] at 125, 170-171; bank
Withdrawal Receipt, … Trial Exhibits D-3, D-6). DiGuglielmo
denied receiving cash from Capen or Wambold. (N.T., at 217-18).
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Trial Court Opinion, 10/14/21, at 8-9. The trial court’s findings are supported
in the record.
The trial court further found Appellants applied Defendants’ payment of
$20,673 (check numbers 1067, 1072, and 1076) to the amount owed under
the promissory note. Trial Court Opinion, 10/14/21, at 9 (citing N.T.,
12/10/20, at 45-46; Trial Exhibits P-25, P-28, P-29). Notwithstanding,
Appellants “presented duplicate invoices for different work with different
amounts due, which DiGuglielmo could not explain.” Id.; see also N.T.,
10/12/20, at 42-43. The trial court observed that DiGuglielmo’s wife endorsed
Defendants’ check number 1066 ($1,400.00), dated June 15, 2017. Id. at 9
(citing N.T., 12/10/20, at 38-39, 180; Trial Exhibits D-6, P-24). DiGuglielmo
could not explain where the $1,400.00 was allocated. Id. (citing N.T.,
12/10/20, at 38-39, 180).
The record confirms that, in separate emails dated January 6, 2017,
Appellants claimed an outstanding balance of $41,903.00 and $44,903.00,
respectively. N.T., 12/10/22, at 104, 106, 109, 113; Trial Exhibits D-1, D-2.
However, the trial court observed, “[t]he payments by [Defendants’] checks
to [Appellants] totaling $20,673.00 and the check for $1,400.00 payable to
cash had been made on or before July 6, 2017, the day of the email
exchanges.” Trial Court Opinion, 10/14/21, at 10. Although Capen and
Wambold requested clarification of the invoices or updated invoices,
Appellants failed to respond. Id. The trial court credited the testimony of
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Capen and Wambold regarding their multiple requests for clarifications and
updated invoices, finding that “DiGuglielmo refused to provide either.” N.T.,
12/10/22, ¶ 107.
Ultimately, the trial court found no breach of contract by Defendants
because Defendants “timely submitted checks and, on occasion, cash, to
satisfy the invoices presented to them” by Appellants. Id. ¶ 106. As the trial
court explained:
The evidence showed that Capen and Wambold had paid the
invoices provided by Abruzzi in full with Wall to Wall checks or
cash with limited exception and had requested clarification or were
waiting for updated invoices for those few invoices not paid in full.
Assuming, arguendo, that [Defendants] owed approximately
$40,545.00 on June 15, 2017, the evidence presented at trial
demonstrates by DiGuglielmo’s admission that three (3) payments
had been made before filing the complaint as follows:
Payment of $39,000.00 on June 20, 2017
Payment of $7,617.00 on June 28, 2017
Payment of $9,156.00 on July 7, 2017
Additionally, Defendants presented evidence of the following
payments at trial:
Invoice No. Amount Check No. Payment Date
060117AC $3,891.00 Cash $14,557.00 6/27/17
060217AA 5,212.00
060217AA 5,611.00
060117AH 1,668.00 1072 1,668.00 6/28/17
060117AE 4,370.00 1060 4,370.00 6/28/22
060117AF 1,278.00 1060 1,278.00 6/28/22
062317AA 1,514.00 1066 1,400.00 6/28/22
[FN1]
062317AB 1,519.00 n/a
[FN2]
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060117AI 2,525.00 1060 1,371.00
[FN3]
TOTAL 27,546.00 24,644.00
Because [Defendants] had paid the amounts invoiced as detailed
in the parties’ pleadings in a timely manner, [Defendants] did not
breach the promissory note.
The evidence presented demonstrates that [Defendants] had
already issued payment for the amounts sought in [Appellants’]
complaint and amended complaint before the first complaint was
filed on September 15, 2017.
[FN1] This amount was a deposit with the expectation that
[Appellants] would generate an invoice after installation.
[Appellants’] invoice generated after installation did not account
for the $1,400 deposit check made out to cash.
[FN2]Invoice dated July 3, 2017, was disputed; clarification
requested but not received.
[FN3]Invoice total was disputed; clarification requested but not
received.
Trial Court Opinion, 10/14/21, at 16 (footnotes in original). The above
findings support the trial court’s determination that Defendants did not breach
the continuing contract. See id.
We are not “empowered to merely substitute [our] opinion concerning
the weight of the evidence for that of the trial judge[.]” Zeffiro v. Gillen,
788 A.2d 1009, 1012 (Pa. Super. 2001) (citation omitted). Because the trial
court’s findings are not “manifestly erroneous, arbitrary and capricious or
flagrantly contrary to the evidence,” Gemini Equipment Co. v. Pennsy
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Supply, Inc., 595 A.2d 1211, 1215 (Pa. Super. 1991), we cannot grant
Appellants relief on their first two issues.
In their third issue, Appellants challenge the trial court’s verdict on their
unjust enrichment claim. Appellants’ Brief at 5. Appellants offer no support
for their claim in the argument section of their brief, as required by Pa.R.A.P.
2119. Accordingly, this undeveloped issue is waived.5 See Bombar v. W.
Am. Ins. Co., 932 A.2d 78, 96 (Pa. Super. 2007) (deeming an issue waived
where appellant failed to identify any authority supporting its claim).
In their fourth issue, Appellants challenge the weight of the evidence
underlying the trial court’s rejection of their CASPA claim. Appellants’ Brief at
4. Again, Appellants offer no legal argument. The issue is waived. See
Bombar, supra.
Waiver notwithstanding, we recognize:
Each of the various remedies afforded by the [CASPA] statute is
subject to specified requirements of proof. Under Section 5, late
payment may entitle a contractor to interest at a rate of 1% per
month (an annual 12% interest rate), but only if the payment was
made at least seven days after delivery of the invoice. 73 P.S.
§ 505; see John B. Conomos, Inc. v. Sun Co., Inc. (R&M),
831 A.2d 696, 710 (Pa. Super. 2003), appeal denied, 577 Pa.
697, 845 A.2d 818 (Pa. 2004). Under Section 12(a), a claimant
may recover an additional penalty of 1% per month (another 12%
per year) if the payment was withheld wrongfully, but such
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5 The unjust enrichment claim lacks merit. Appellants’ claims are premised
on Defendants’ nonpayment under the continuing contract and the promissory
note. “[T]he doctrine of unjust enrichment is inapplicable when the
relationship between parties is founded upon a written agreement or express
contract.” Wilson v. Parker, 227 A.3d 343, 353 (Pa. Super. 2020) (citation
omitted).
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recovery requires a determination that the owner did not withhold
payment in good faith. 73 P.S. § 512(a); see, e.g., Waller Corp.
v. Warren Plaza, Inc., 95 A.3d 313, 319 (Pa. Super.
2014); Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880, 891 (Pa.
Super. 2006), appeal denied, 599 Pa. 711, 962 A.2d 1197 (Pa.
2008). Under Section 12(b), the claimant may also recover
attorneys’ fees and expenses, but only if the claimant is a
“substantially prevailing party in any proceeding to recover any
payment under this act.” 73 P.S. § 512(b); see, e.g., Imperial
Excavating & Paving, LLC v. Rizzetto Constr. Mgmt., 935
A.2d 557, 564 (Pa. Super. 2007); Zavatchen v. RHF Holdings,
Inc., 907 A.2d 607, 609 (Pa. Super. 2006), appeal denied, 591
Pa. 685, 917 A.2d 315 (Pa. 2007).
United Envtl. Grp., Inc. v. GKK McKnight, Ltd. P’ship, 176 A.3d 946, 960
(Pa. Super. 2017).
The record confirms Appellants failed to establish a breach of contract,
wrongfully withheld payments, or that they “substantially prevailed” in their
claims against Defendants. See id. Accordingly, the trial court properly
exercised its discretion in rejecting Appellants’ challenge to the weight of the
evidence as to their CASPA claim. See id.
In their fifth issue, Appellants challenge the trial court’s verdict in favor
of Defendants on their counterclaim of unjust enrichment. Appellants’ Brief
at 26. Appellants claim they performed most of the fire remediation services
themselves. Id. Appellants further allege that Defendants submitted inflated
claims to Appellants’ insurance underwriter. Id. at 27. According to
Appellants, Defendants’ inflated claims resulted in a 1.5-year delay “of the
partial payment of insurance benefits,” which negatively impacted Appellants’
business from “walk-in” customers visiting their showroom. Id.
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The trial court deemed the issue waived, based on Appellants’ failure to
raise it in post-trial motions. Trial Court Opinion, 10/14/21, at 27-28. The
trial court reasoned:
In Appellants’ supplemental memorandum of law in support of
their motion for post-trial relief fled on April 14, 2021, they raised
for the first time, and without leave of court, an argument
challenging the amount of this court’s award on [Defendants’]
counterclaim [for unjust enrichment]. Appellants do not contest
the court’s determination that an award on the counterclaim was
appropriate. Appellants have waived this issue.
Id. We agree. See Bensinger v. Univ. of Pittsburgh Med. Ctr., 98 A.3d
672, 685 (Pa. Super. 2014) (recognizing that inclusion of an issue in a brief
in support of a post-trial motion is insufficient to preserve the issue under
Pa.R.C.P. 227 (Post Trial Relief)). Because Appellants failed to timely raise
this issue in their post-trial motion, it is waived. See id.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/7/2022
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