Cohen, M. v. JS Associated Service

J-A24025-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MYRNA COHEN IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

JS ASSOCIATED SERVICE, T/D/B/A
SERVICEMASTER OF GREATER
PITTSBURGH

Appellee No. 390 WDA 2017

Appeal from the Judgment Entered April 17, 2017
In the Court of Common Pleas of Westmoreland County
Civil Division at No(s): 4775 of 2009

BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY SOLANO, J.: FILED DECEMBER 15, 2017

Appellant Myrna Cohen appeals from the judgment following a bench

trial in her action for breach of contract against Appellee JS Associated

Service, trading and doing business as ServiceMaster of Greater Pittsburgh

(“ServiceMaster”). Cohen prevailed in the action, but was awarded only

$154.1 Her appeal contends that she was entitled to recover additional

damages. We affirm.

In late February 2007, Cohen discovered a water leak in the first-floor

bathroom of her home. N.T. Trial, 9/14/16, at 31, R.R. at 148a. 2 A

____________________________________________
1
The judgment also denied ServiceMaster’s claim for fees associated with
Cohen’s alleged delay of trial, but ServiceMaster has not appealed that
aspect of the decision.
2
The certified record transmitted to this Court did not include the complete
trial transcript, but additional portions of the transcript were included in the
(Footnote Continued Next Page)
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repairman, Scott Steel, discovered that the leak resulted from a failed trap

in the sink and repaired the trap. Steel N.T., 9/14/16, at 4–6, R.R. at 269a–

71a. Steel pointed out that some mold had resulted from the leak, and

Cohen therefore notified her homeowner’s insurer, Travelers Insurance

Company, and made a claim. N.T. at 31–32, R.R. at 148a. On April 3,

2007, ServiceMaster, which had been recommended by Travelers, presented

Cohen with two estimates for the mold remediation work and for “pulling up

the floor and baseboards,” “putting the plywood back in the bathroom,” and

“moving around the appliances and content.” Pl.’s Ex. 3. In a cover e-mail,

ServiceMaster’s project manager, Johnny Samek, stated: “We will not be

doing the repairs beyond the remediation because it is a far distance from

our office. We will leave the site when the remediation is done ready for

you[r] contractor to start the rebuild.” Id.

After obtaining Travelers’ approval, Cohen hired ServiceMaster for the

job. N.T. Trial at 32, R.R. at 148a. Both parties agree that ServiceMaster’s

revised combined estimate — Pl.’s Ex. 2a (hereinafter, “the Agreement”) —

became the governing contract in this case. See Cohen’s Brief, 6/29/17, at

_______________________
(Footnote Continued)
reproduced record. Because no party has challenged the accuracy of the
transcript in the reproduced record, we rely on it here. See Pa.R.A.P. 1921
(noting, “where the accuracy of a pertinent document is undisputed, the
Court could consider that document if it was in the Reproduced Record, even
though it was not in the record that had been transmitted to the Court”
(citing Commonwealth v. Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)).

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19; ServiceMaster’s Brief, 7/31/17, at 13.3 The Agreement stated:

This estimate does not include any repairs at this time with the
exception of installing new subfloor in the bathroom so that
there will not be a hole there. The repairs are going to be done
by someone other than ServiceMaster and the repair estimate
should be done after the remediation due to the possibility of
more or less building materials needing to be removed.

Agreement at 1 (unpaginated). The Agreement explained that a different

contractor was to install permanent flooring, in contrast to subflooring,

sometime after ServiceMaster finished its work —

The [future] contractor can put other layers in and final floor
covering later. The goal is not to bring the floor completely
level[;] it is to cover the plank flooring and cracks which would
be letting air in from the basement and possibly cause air testing
to fail and make the floor safe to walk on.

Agreement at 3.

Cohen left her house during the remediation work because she was

told it would be unsafe for her to be there while ServiceMaster removed

mold. N.T. Trial at 32–34, R.R. at 148a–49a. ServiceMaster used glue and

screws to install the subflooring. N.T. Trial at 7, 55, R.R. at 142a, 154a.

When Cohen returned, she was unhappy with what she found:

Q. When you returned to the house following the work, what did
you discover?

A. Look at the alcoved area, not by the powder room, across.
That floor, the waferboard floor that was left, that ServiceMaster
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3
The agreement was attached as an exhibit to Cohen’s original and
amended complaint, and it is reproduced multiple times in the reproduced
record. See, e.g., Pl.’s Ex. 2a, R.R. at 159a-66a, R.R. at 167a-74a. The
record contains two similar documents marked as Exhibits 2 and 2a. The
parties do not dispute that the governing contract is Exhibit 2a.

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installed, wasn't even. It was off by a decent distance that
somebody could trip over it; I could trip over it, ‘cause I did.
Then, there -- where the wood left off, different parts of the
room, there was spaces. So you could see what I call, I don’t
know, ceiling, floor, what I call the original floor, you could see
spaces between the waferboard floor and the wall, and you could
see the -- what I call the original floor. There were also areas
that you could see from. If you look down, you’re looking from
the kitchen area to the ceiling, there was nothing. So -- oh, and
where the powder room is, there was a piece of wood extending
the -- this (indicating) part, the corner, the outside corner of the
powder room, there was a piece of wood extending, and then
between the kitchen and what would be a small hall there was a
space. That was it, pretty much it.

Q. What was your reaction to what you saw?

A. I thought that there was something that was really off.

N.T. Trial at 35–36, R.R. at 149a.

Cohen called Steel for assistance, but he told her to “call the people

who did this job because this isn’t my work.” N.T. Trial at 37, R.R at 150a.

Cohen claims that she then made several efforts to obtain relief from

ServiceMaster, but was unsuccessful. N.T. Trial at 38–45, R.R. at 150a–52a.

Cohen therefore obtained estimates from other contractors for the cost to

complete the remaining repair work in her home. The estimates included

work to repair other damages resulting from the water leak. Trial Ct. Op.,

2/3/17, at 3, 4. Among those providing estimates was Steel, who estimated

a cost of $6,038. He submitted that estimate with an intention that Cohen

would send it to Travelers for possible reimbursement. Steel N.T. at 23,

R.R. at 288a; Pl.’s Ex. 10.

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On August 7, 2009, Cohen sued ServiceMaster for breach of contract,

contending that it had performed “improper and unworkmanlike installation

of the subflooring.” Compl., 8/7/09, at ¶ 22. Cohen alleged that

ServiceMaster had told her that “the subflooring was only temporary,” but

that other contractors informed her that “the subflooring installed by

ServiceMaster would have to be removed and replaced with new

subflooring,” due to its permanent installation. Id. at ¶¶ 19-20.

The trial court issued an order on April 28, 2010 dismissing “all claims

which relate to an Agreement to install or repair joints.” See Order,

4/28/10, at 1. On November 19, 2015, Cohen filed an amended complaint

that added a damages claim for Cohen’s out-of-pocket expenses for repairs,

future out-of-pocket expenses for repairs, costs for repairs to correct

ServiceMaster’s work, and loss of use of Cohen’s dwelling. Am. Compl. at ¶

26.

A non-jury trial was held on September 14, 2016. During the trial,

Cohen presented testimony from Steel that the estimated total cost to repair

the floor would be $11,556. Steel N.T. at 3, R.R. at 225a. On cross-

examination, ServiceMaster confronted Steel with his 2007 estimate of

$6,038. Steel testified that only lines seven through ten on his 2007

estimate would be needed to fix the subfloor installed by ServiceMaster; the

items on those lines totaled $154. Steel N.T. at 44–46, R.R. at 309a–11a;

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Pl.’s Ex. 10.4 All other amounts on the estimate were for work to finish the

project — the work that ServiceMaster said would be done by a separate

contractor. Steel N.T. at 43-44, R.R. 308a–09a. Steel further explained

that the $11,556 estimate he provided at trial included work to level the

subfloor. He admitted, however, that “put[ting] the extra money in to do it,

to get everything level” was not necessary. Steel N.T. at 45, R.R. at 310a.

Steel also conceded that the higher in-court estimate of $11,556

incorporated work likely not covered by the insurance company. Steel N.T.

at 23–25, R.R. at 288a–90a.

Cohen also presented evidence from a second contractor, Ernest

Eddington, that the cost would be between $20,000 to $25,000. N.T. Trial

at 11–13, R.R. at 143a–44a. Eddington’s estimate did not provide any line-

by-line breakdown to support this amount. See Trial Ct. Op. at 4.

On November 2, 2016, the trial court found in Cohen’s favor on her

contract claim and awarded her $154 in damages. Order, 11/2/2016. The

court explained:

This Court reviewed the testimony and compared the two
estimates prepared by Mr. Steel for the repair of Plaintiff’s
kitchen and powder room. In regards to the first estimate, which
____________________________________________
4
These lines were:
Line 7. Pull up subfloor piece, shim, replace $23.00
Line 8. Screw down subfloor $86.00
Line 9. Install subfloor pieces $20.00
Line 10. Install leveler to cracks $25.00
Pl.’s Ex. 10.

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was entered as Exhibit Number 10, Mr. Steel clearly agreed on
cross-examination that if he completed line items seven through
ten, then he would be able to start the rebuild process from
there and put the kitchen back together. Defendant’s counsel
specifically posed to him: “Seven, eight, nine, and ten are work
that you’d have to perform to the subfloor ServiceMaster put
down. Is there anything else besides seven, eight, nine, ten?”
Mr. Steel’s response was: “That would be it.”

Plaintiff further argues that subsequent contractors could not
come in and finish the kitchen due to the condition of the
subfloor. However, when Mr. Steel was justifying the second,
higher estimate, he indicated that the kitchen could in fact be
completed with the condition of the subfloor if line items seven
through ten were completed. He stated that: “You can do it
[. . .], I’ve gone into houses and I’ve done that before for people
because they don't want to put the extra money in to do it, to
get everything level.” Therefore, it is clear from the testimony
presented that Defendant’s workmanship on the subfloor did not
impede completion of the kitchen and powder room except for
the need to complete line items seven through ten.

In regards to the second estimate, it was clear from the
testimony of Mr. Steel that the increase to the $11,556 figure
was based on work required to level the subfloor. He testified
that not only was he going to remove the base floor installed by
Defendant, but he was going to “tear the flooring that’s
underneath it [. . .], I was going to [. . .] install jacks in the
basement, [. . .] and take out the main support beam that’s in
there right now, set that onto jacks, slowly jack up, as close to
level as I can, and then from there repair or shim, or whatever I
need to do with the existing floor joists in that kitchen to get it
as close to level as I can, and then from that point I’m going to
go ahead, and the bid would encompass completely finishing.”
Mr. Steel specifically indicated that with his original bid, he was
doing what the insurance company would cover, which did not
include “repairing the unevenness of the floor, [. . .], either
jacking, leveling, or fixing supports in the basement [. . .], and
that’s why [the estimate] would be considerably more today
[. . .].”

Based on Mr. Steel’s explanation regarding the second estimate,
this Court can only conclude that Defendant is not responsible
for the additional fees relating to the work contemplated by the
second estimate. . . . Therefore, Defendants cannot be made to
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pay the $11,556 estimate when Plaintiff’s own witness indicated
that the additional work justifying said cost related to claims that
this Court already dismissed.

Plaintiff also relied on the additional testimony of Mr. Eddington,
which estimated the costs of repair to be [$20,000 to $25,000].
However, there was no basis established for this figure and there
was no way for this Court to determine the specifics of said
estimate. The only evidence presented that demonstrated any
cost associated with repairing work done by Defendants were the
line items previously relied on by this Court, which amounted to
the awarded figure of $154.

Trial Ct. Op. at 2-4 (unpaginated) (citations to record omitted).

Cohen filed a Motion for Post-Trial Relief on November 17, 2016,

seeking increased damages.5 On February 3, 2017, the trial court denied

that motion. Cohen then filed this timely appeal in which Cohen presents

the following issues for our review:

1. Did the [trial] court err in its construction and interpretation
of the parties’ contract?

2. Did the [trial] court abuse its discretion in failing to consider
the entirety of the testimony of Scott Steel, one of Cohen’s
expert witnesses on damages?

3. Was the [trial] court’s nominal damages order in favor of
Cohen inadequate and should it be set aside?

4. Did the [trial] court err in failing to award Cohen damages for
loss of use of her dwelling?

Cohen’s Brief at 6.

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5
Cohen claims that she sought judgment notwithstanding the verdict
(“JNOV”). Cohen’s Brief at 3 (“Cohen’s post-trial motion sought [JNOV] as
to damages”). In fact, her motion requested that the court “modify and
change the [Nov. 2, 2016 Order] to award damages to plaintiff in the
minimum amount of $11,556.00.” Cohen’s Mot., 11/17/16, at 7–8.

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Contract Interpretation

According to Cohen, the intent of the contract “was for ServiceMaster

to perform remediation and repair work in such a workmanlike manner so to

allow another contractor to perform finishing work on both the kitchen and

powder rooms.” Cohen’s Brief at 19. Cohen contends that ServiceMaster

breached the contract by installing permanent subflooring (with screws and

glue), and not temporary subflooring. Id. Due to the permanent nature of

the flooring, subsequent contractors refused to work until ServiceMaster

fixed that flooring. Id. at 19-20. As a result, according to Cohen, the cost

of the finishing work was higher than it should have been. Cohen contends

that the trial court erred in failing to construe the contract in a way that

would award her additional damages for this breach.

According to ServiceMaster, the Agreement contemplated that a

“future contractor may determine that more materials may need to be

removed in the future as part of their rebuild.” ServiceMaster’s Brief at 13.

This meant that contractors would have the option of removing the

subflooring or retaining it as they continued with the rebuilding process. Id.

at 14. ServiceMaster contends that its use of glue and screws on the

subflooring is irrelevant and asserts that glue and screws would have been

used even if “they knew 100% they would later be removed.” Id. at 15-16.

The trial court held —

that the contract between Defendant ServiceMaster and Plaintiff
was for mold remediation services and that those services were
performed in accordance with the contract, that the estimate
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provided to Plaintiff only required the installing of a new subfloor
in the bathroom “so that there will not be a hole there,” that the
estimate provided clearly contemplated that the subfloor may
not be sufficient and that additional repairs would be needed as
the estimate itself included language stating that “repairs are
going to be done by someone other than ServiceMaster and the
repair estimate should be done after the remediation due to the
possibility of more or less building materials needing to be
removed,” that Defendant ServiceMaster did conduct all work
requested by Plaintiff in October 2007 in an attempt to satisfy
Plaintiff[.]

Order, 11/2/2016, at 1-2.

We have explained:

The fundamental rule in contract interpretation is to ascertain
the intent of the contracting parties. In cases of a written
contract, the intent of the parties is the writing itself. When the
terms of a contract are clear and unambiguous, the intent of the
parties is to be ascertained from the document itself. When,
however, an ambiguity exists, parol evidence is admissible to
explain or clarify or resolve the ambiguity, irrespective of
whether the ambiguity is patent, created by the language of the
instrument, or latent, created by extrinsic or collateral
circumstances.

Nicholas v. Hofmann, 158 A.3d 675, 693 (Pa. Super. 2017) (citation and

ellipses omitted). Upon reviewing the parties’ Agreement in light of this

standard, we conclude that the trial court interpreted the contract correctly.

The contract called for the installation of a “new subfloor in the

bathroom so that there will not be a hole there.” Agreement at 1. No party

disputes that a new subfloor was installed. Nothing in the Agreement

specified whether the subfloor was to be temporary or permanent or

whether it could be installed with glue and screws; the Agreement made

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clear that another contractor would install additional layers and the final

flooring.

Because the contract did not specify how the subfloor was to be

installed, we discern no basis to award Cohen relief on this issue. The trial

court’s decision was consistent with the parties’ obligations under the

Agreement, and we discern no error by the trial court in the way it applied

the contract. Accordingly, Cohen’s first issue is meritless.

Inadequate Damages

We consider Cohen’s second and third issues together. Cohen asserts

that the amount of damages awarded to her “was inadequate” and that it

should “be set aside.” Cohen’s Brief at 28. She claims that the trial court

improperly assessed the evidence in calculating the damages, and, in

particular, that the court failed to properly consider Steel’s testimony when

calculating its award.

We have previously established the standard of review for considering

the adequacy of a damage award:

The duty of assessing damages is within the province of the fact-
finder and should not be interfered with unless it clearly appears
that the amount awarded resulted from partiality, caprice,
prejudice, corruption or some other improper influence.
Generally, a verdict will not be disturbed merely on account of
the smallness of the damages awarded or because the reviewing
court would have awarded more. To support the granting of a
new trial for inadequacy, the injustice of the verdict should stand
forth like a beacon. So long as the verdict bears a reasonable
resemblance to the damages proved, it is not the function of the
court to substitute its judgment for that of the [fact-finder].

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Epstein v. Saul Ewing, LLP, 7 A.3d 303, 315 (Pa. Super. 2010) (citation

omitted), appeal denied, 20 A.3d 1212 (Pa. 2011); accord Davis v.

Mullen, 773 A.2d 764, 766 (Pa. 2001).

Cohen contends that her award “does not reflect the cost of remedying

ServiceMaster’s defective workmanship, and bears no reasonable relation to

the loss suffered by Cohen.” Cohen’s Brief at 28. She contends that the

trial court erred in failing to consider the “entirety” of Steel’s testimony on

damages,6 id. at 6, 21, and argues that Steel’s trial estimation of $11,556

should be read as “the minimum amount of damages that should be

awarded.” Id. at 28 (emphasis in original). Finally, Cohen asserts that

Eddington’s lump-sum estimation of $20,000–$25,000 “is a legally sufficient

bas[i]s to award damages.” Id.7 Cohen cites Burly Const. Corp. v. Com.

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6
Cohen calls Steel an “expert witness.” Cohen’s Brief at 21. ServiceMaster
does not dispute that Mr. Steel is an expert, and in fact, ServiceMaster relies
on Steel’s testimony in support of its argument. See ServiceMaster’s Brief
at 17–20.
7
Cohen cites Anderson v. Nye, 11 Pa. D. & C.3d 734 (C.C.P.
Northumberland 1979), to assert that an acceptable estimation is “a
statement of who made the estimate, when it was made, what materials are
to be used, and the cost of the labor to perform the work.” Cohen’s Brief at
28. As a Court of Common Pleas decision, Anderson is not binding on this
Court. See Newell v. Montana West, Inc., 154 A.3d 819, 823 (Pa. Super.
2017). Also, Anderson is inapt, as it was an order sustaining preliminary
objections due to the plaintiff’s failure to identify breach-of-contract
damages in the complaint, and it did not address inadequate damages after
a trial. 11 Pa. D. & C.3d at 739.

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Dep’t of Justice, 284 A.2d 841 (Pa. Cmwlth. 1971),8 to support her

assertion that a court may legally base its award of damages on a lump-sum

estimate presented by a competent witness. Cohen’s Brief at 28.

ServiceMaster argues that Cohen’s estimations given at trial included

costs for work beyond the scope of ServiceMaster’s contractual duties.

ServiceMaster’s Brief at 20–21. ServiceMaster claims that the $154 award

was appropriately based on Steel’s estimate to complete lines seven to ten

in his 2007 estimate, id. at 20, and urges us to disregard the estimate given

by Eddington because it lacks any accuracy or reliability.

The trial court found that the estimates presented by both Steel and

Eddington included expenses not contemplated in the Agreement, as well as

expenses for which the trial court had already denied relief. Trial Ct. Op. at

3–4. Accordingly, the trial court found no basis for it to require

ServiceMaster to pay the full $11,556 estimated by Steel. Id. The trial

court considered Eddington’s estimate of $20,000 to $25,000 to be baseless,

and it instead relied on lines seven to ten of Steel’s 2007 estimate because it

reflected a verifiable cost of the work reflected in the Agreement —

installation of subflooring in the bathroom. Id. The court held that Steel’s

testimony clearly proved that ServiceMaster would need to complete only

lines seven through ten of his 2007 estimate in order for Cohen to begin

rebuilding. Id. at 2. The trial court therefore found that, “except for the
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8
We are not bound by the decisions of the Commonwealth Court, although
we may find them persuasive. See Newell, 154 A.3d at 823.

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need to complete line items seven through ten,” ServiceMaster’s work did

not prevent Cohen from hiring contractors to complete the rest of the

repairs. Id. at 2–3.

Pennsylvania courts have long-recognized that “incomplete or

defective performance of a building contract [should be] measured by the

cost of completing the work or correcting the defects by another contractor.”

Douglass v. Licciardi Const. Co., Inc., 562 A.2d 913, 915–16 (Pa. Super.

1989). Such a rule will apply unless —

[t]he cost of completing performance or of remedying the
defects is clearly disproportionate to the probable loss in value to
the injured party[, in which case] damages will be measured by
the difference between the market price that the property would
have had without the defects and the market price of the
property with the defects.

Id. at 916.9

In determining this measure, the trial court had discretion to consider

the testimony of experts and assess their credibility. See Christian v.

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9
Cohen cites to Gadbois v. Leb-Co Builders, Inc., 458 A.2d 555, 558 (Pa.
Super. 1983), to support her assertion that damages should be measured by
the “reasonable costs to remedy the defects.” Cohen’s Brief at 27. Gadbois
predates Douglass but essentially articulates the same test. The court’s
default “measure of damages in cases where a homeowner sues for
defective construction is the difference between the market value of the
house as constructed and the market value that the house would have had if
constructed as promised, with the qualification that if it is reasonably
practical to cure the defects in construction by repairs, and if the cost of
repairs does not exceed the difference in market value, then the measure of
damages is the cost of repairs.” Gadbois, 458 A.2d at 559. Appellants in
Gadbois sought the difference in market value, but in the instant case
Cohen does not argue for difference in market value as a measure of her
damages.

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Yanoviak, 945 A.2d 220, 227 (Pa. Super. 2008); see also McEwing v.

Lititz Mut. Ins. Co., 77 A.3d 639, 651 (Pa. Super. 2013) (finding that

although expert witness’ estimate may have been speculative, it did not

prejudice defendant’s defense). The trial court’s findings are “binding on

appeal unless it appears that the court abused its discretion or that the

court’s findings lack evidentiary support or that the court capriciously

disbelieved the evidence.” Christian, 945 A.2d at 225 (quoting Hart v.

Arnold, 884 A.2d 316, 331 (Pa. Super. 2005), appeal denied, 897 A.2d

458 (Pa. 2006)). In Viener v. Jacobs, 834 A.2d 546, 556 (Pa. Super.

2003), appeal denied, 857 A.2d 680 (Pa. 2004), cert. denied, 543 U.S.

1146 (2005), we noted we will not find an abuse of discretion where there is

a “mere difference of opinion regarding an interpretation of facts . . . [, but]

rather, an abuse of discretion is found only in flagrant cases where there is

not a substantial ground for difference of opinion” (emphasis in original).

Under Douglass, the appropriate amount of damages here was the

“cost of completing the work.” 562 A.2d at 916. The trial court found that

Steel, Cohen’s own witness, determined the cost for completing the

subflooring work would amount only to $154, the sum of lines seven to ten

in his 2007 estimate. Order, 11/2/16, at 2. The record supports the trial

court’s conclusion that ServiceMaster would need only to complete lines

seven to ten of Steel’s estimate to “[ensure] that the subfloor was in proper

condition.” Id. The trial court acted well within its discretion to believe the

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relevant parts of Steel’s testimony. See Christian, 945 A.2d at 227;

Douglass, 562 A.2d at 916.

Cohen’s citation to Burly does not support a different result. The

contractor in that case contended that it incurred additional costs flowing

from a change in a construction contract that required it to use wood-form

instead of steel-form materials. 284 A.2d at 843. The company provided an

estimate “showing a breakdown of unit cost per square foot between steel-

forms and wood-forms” as a means of proving damages. Id. at 844. The

Commonwealth Court noted that estimations of damages must “have a basis

in reason to [to be] legally sufficient.” Id. Contrary to Cohen’s assertion,

Burly did not involve any issue of lump-sum estimations. Rather, the

Commonwealth asserted that Burly’s estimate was sufficient because it

provided “evidence for reasonable computation.” Id. at 845.

In sum, we perceive no abuse of discretion by the trial court in

calculating damages. Steel provided a line-by-line estimate of the costs

needed to repair the subflooring in accordance with the terms of the

Agreement stating ServiceMaster would install subflooring, and the trial

court accepted that estimate, which totaled $154. Steel conceded that his

estimate during trial of $11,556 was for work outside the scope of the

Agreement. The trial court acted within its discretion in rejecting the less

detailed estimate provided by Eddington. For these reasons, we conclude

the trial court did not abuse its discretion by awarding $154 to Cohen.

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Failure to Award Damages for Loss of Use of Cohen’s Dwelling

As her final issue, Cohen argues that the trial court erred in failing to

award her damages for loss of use of her dwelling. Cohen’s Brief at 29. To

recover consequential damages for breach of a construction contract, such

damages must be foreseeable by the other party at the time of contracting.

Frank B. Bozzo, Inc. v. Elec. Weld Div. of Ft. Pitt Bridge Div. of Spang

Indus., Inc., 423 A.2d 702, 709 (Pa. Super. 1980), aff’d, 435 A.2d 176

(Pa. 1981). Furthermore, a plaintiff must establish a basis for assessing

consequential damages. Wujcik v. Yorktowne Dental Ass’c. Inc., 701

A.2d 581, 584 (Pa. Super. 1997) (affirming trial court’s finding that plaintiff’s

initial evidence, based on his own memories of payments usually received

from patients, was inadequate to prove consequential damages); see also

Bolus v. United Penn Bank, 525 A.2d 1215, 1226 (Pa. Super. 1987) (“the

law requires only that the evidence shall with a fair degree of probability

establish a basis for the assessment of damages” (citations and internal

quotations omitted)), appeal denied, 541 A.2d 1138 (Pa. 1988). Whether

to award consequential damages is a matter committed to the trial court’s

discretion. Cresci Const. Serv., Inc. v. Martin, 64 A.3d 254, 265 (Pa.

Super. 2013) (citing TruServ Corp. v. Morgan’s Tool & Supply Co., 39

A.3d 253, 264 (Pa. 2012)); see also Smith v. Penbridge Assocs., Inc.,

655 A.2d 1015, 1022–23 (Pa. Super. 1995); Glomb by Salopek v. Glomb,

530 A.2d 1362, 1369 (Pa. Super. 1987) (“We assign to the fact finder,

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however, the task of assessing the worth and credibility of the testimony on

the issue of damages”), appeal denied, 538 A.2d 876 (Pa. 1988).

Cohen contends that she can recover “damages which naturally and

proximately flow from the breach of contract,” and that her “loss of use of

her home is a natural and proximate result of ServiceMaster’s poor

workmanship.” Cohen’s Brief at 29 (quoting Cresci, 64 A.3d at 264 n.15).

Cohen values the loss of use of her kitchen and bathroom at a minimum of

$300 per month. Id.

ServiceMaster counters that any delay in Cohen’s inability to use her

kitchen and bathroom was the result of her “self-inflicted” decisions to not

hire other contractors. ServiceMaster’s Brief at 22. ServiceMaster asserts

that Cohen failed to mitigate her damages by not seeking other contractors

who “could have easily and cheaply” re-shimmed the subfloor for $154 and

then “proceeded to rebuild the kitchen.” Id.

The trial court did not award Cohen damages for loss of use of her

dwelling. In its Rule 1925(b) opinion, the trial court explained: “[s]ince the

repairs associated with [Cohen’s] work are minimal, there was no

justification for this Court to award loss of use damages.” Trial Ct. Op. at 4.

We find no abuse of discretion in the trial court’s decision. First,

Cohen fails to argue that her loss of use of her dwelling was foreseeable.

Nothing within the Agreement provided that the kitchen and bathroom would

be fully usable after ServiceMaster completed mold remediation and installed

the subflooring. In fact, the Agreement stipulated that further work would
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need to be completed by a different contractor. Agreement at 1. Secondly,

Cohen failed to present any evidence to support her allegation that she

incurred $300 per month in damages from loss of use. Finally, even if

Cohen had provided a basis to establish consequential damages, the trial

court had the discretion to not award them. Accordingly, we find no abuse

of discretion and therefore we will not disturb the trial court’s decision.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/15/2017

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