Ely, M. v. Susquehanna Aquacultures, Inc. , 130 A.3d 6 ( 2015 )

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2015 PA Super 247MARK ELY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
SUSQUEHANNA AQUACULTURES, INC.
AND DAVID ISOLANO
Appellees Nos. 2024 MDA 2014, AND
2025 MDA 2014
Appeal from the Judgments Entered November 24, 2014
In the Court of Common Pleas of York County
Civil Division at No: 2012-SU-1670-88
MARK ELY IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SUSQUEHANNA AQUACULTURES, INC.
AND DAVID ISOLANO
Appellants No 2108 MDA 2014
Appeal from the Judgments Entered November 24, 2014
In the Court of Common Pleas of York County
Civil Division at No: 2012-SU-1670-88
BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MUSMANNO, J.
OPINION BY STABILE, J.: FILED NOVEMBER 25, 2015
Mark Ely (“Ely”), Susquehanna Aquacultures, Inc. (“SAI”), and David
Isolano (“Isolano”) have filed appeals from the November 24, 2014
judgments entered in favor of Ely and against SAI for $39,600 and in favor
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of Ely and against both SAI and Isolano for $24,412.34. We affirm in part,
vacate in part, and remand.
The record reveals that Ely signed a two-year employment contract
with SAI effective from March 2, 2011 to March 2, 2013. Isolano, the
president of SAI,1 negotiated the contract on behalf of SAI. Ely agreed to
serve as SAI’s vice president. SAI terminated Ely’s employment on April 2,
2012 and paid him no further wages or benefits.
Ely commenced this action on April 18, 2012. In his June 10, 2013
third amended complaint he alleged causes of action for breach of contract
and violation of the Wage Payment and Collection Law (“WPCL”), 42 P.S.
§ 260.1 et seq. Ely sought to recover $79,539.83 in lost wages and fringe
benefits. The trial court conducted a jury trial on the breach of contract
action beginning on January 13 and concluding on January 15 of 2014. The
jury found SAI in breach of the employment contract and returned a verdict
in Ely’s favor for $39,600.00 in lost wages. By the parties’ agreement, the
trial court conducted a hearing on Ely’s WPCL claim on February 10, 2014.
On July 25, 2014, the trial court awarded Ely $24,142.00 in attorneys’ fees
pursuant to 42 P.S. § 260.9a(f). Ely filed a post-trial motion, pursuant to
which the trial court granted Ely $270.34 in costs but otherwise denied
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1
Isolano became president of SAI after a group of investors purchased SAI
on March 1, 2011. N.T. Trial, 1/13-15/14, at 290-91.
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relief. Both parties filed timely appeals, which we have consolidated for
review.
We will begin with a review of Ely’s appeal at docket numbers 2024
MDA 2014 and 2025 MDA 2014. Ely raises nine issues for our review:
A. Whether the trial court erred in not granting judgment
notwithstanding the jury’s verdict on [Ely’s] breach of
contract claim?
B. Whether the trial court erred in not granting a new trial
on damages because the jury’s verdict was against the
weight of the evidence produced at trial?
C. Whether the trial court erred in not granting judgment
notwithstanding the verdict on the [WPCL] claim?
D. Whether the trial court erred in not granting a new trial
on damages based upon the [WPCL] claim?
E. Whether the trial court made an error of law in not
awarding liquidated damages pursuant to the [WPCL]?
F. Whether the trial court made an error of law in not
calculating the lodestar in determining the amount of
attorneys’ fees to be awarded to [Ely] based upon his
[WPCL] claim?
G. Whether the trial court abused its discretion in awarding
only $24,142 for attorneys’ fees?
H. Whether the trial court erred in refusing to grant pre-
judgment interest to [Ely]?
I. Whether the trial court erred in awarding only $270.34
for costs and litigation?
Ely’s Brief at 6-7.
Ely first argues that the trial court erred in denying his motion for
judgment notwithstanding the verdict (“JNOV”) on Ely’s breach of contract
claim. Ely argues that the jury, upon finding SAI liable for breach of
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contract, was required to award Ely $79,539.83 in lost wages and fringe
benefits rather than the lesser amount. Ely argues that a compromise
verdict is inappropriate in a breach of contract case where the record clearly
establishes the plaintiff’s damages. Our standard of review is well settled:
A JNOV can be entered upon two bases: (1) where the
movant is entitled to judgment as a matter of law; and/or, (2)
the evidence was such that no two reasonable minds could
disagree that the verdict should have been rendered for the
movant. When reviewing a trial court’s denial of a motion for
JNOV, we must consider all of the evidence admitted to decide if
there was sufficient competent evidence to sustain the verdict.
In so doing, we must also view this evidence in the light most
favorable to the verdict winner, giving the victorious party the
benefit of every reasonable inference arising from the evidence
and rejecting all unfavorable testimony and inference.
Concerning any questions of law, our scope of review is plenary.
Concerning questions of credibility and weight accorded the
evidence at trial, we will not substitute our judgment for that of
the finder of fact. If any basis exists upon which the jury could
have properly made its award, then we must affirm the trial
court’s denial of the motion for JNOV. A JNOV should be entered
only in a clear case.
Egan v. USI Mid-Atl., Inc., 92 A.3d 1, 19-20 (Pa. Super. 2014), appeal
granted, 108 A.3d 30 (Pa. 2015).
Damages for a breach of contract should place the aggrieved party in
“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). To that end, the aggrieved party may recover all
damages, 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)
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they can be proved with reasonable certainty.” Id. at 270. “In an
employment case, the measure of damages is the wages which were to be
paid less any amount actually earned or which might have been earned
through the exercise of reasonable diligence in seeking other similar
employment.” Delliponti v. DeAngelis, 681 A.2d 1261, 1265 (Pa. 1996).
Ely testified that his alleged $79,539.83 in damages included
$61,222.58 in lost wages and the remainder in fringe benefits. Ely testified
that he would have received $73,232.50 in wages from the date of his
termination through the expiration of the contract, but he procured similar
work at Aqua Life, Inc., in which he holds a one-third ownership interest,
and thereby mitigated his damages by $12,009.92. In sum, Ely argues that
the amount of damages was “easily and precisely ascertainable” in this case.
Ely’s Brief at 20.
Ely disputes whether the jury’s award of $39,600.00, an apparent
compromise verdict, was permissible in this case.
Compromise verdicts are verdicts where the fact-finder is
in doubt as to the defendant’s liability vis-à-vis the plaintiff’s
actions in a given suit but, nevertheless, returns a verdict for the
plaintiff in a lesser amount than it would have if it was free from
doubt. Compromise verdicts are favored in the law. Although
more commonplace in negligence cases tried before juries, such
verdicts are equally appropriate in contract cases tried before
the bench.
Morin v. Brassington, 871 A.2d 844, 852-53 (Pa. Super. Ct. 2005)
(citations omitted). In any event, this Court “will not disturb a verdict unless
the ‘injustice of the verdict should stand forth like a beacon.’” Frank Burns,
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Inc. v. Interdigital Commc’ns Corp., 704 A.2d 678, 682 (Pa. Super.
1997).
In Morin, the plaintiff in a breach of oral contract action alleged he
worked 40 hours per week year-round for 11 years with no time off for
vacation. Morin, 871 A.2d at 852. The trial court found the plaintiff not
credible and calculated damages based on a 30-hour workweek and 48
weeks of work per year. Id. This Court held the verdict was proper because
no records existed to prove the numbers of hours the plaintiff worked, and
because the trial court was free to disbelieve the plaintiff’s testimony. Id. at
853. In Frank Burns, Inc., another breach of contract action, the trial
court found that both parties engaged in blameworthy conduct. Frank
Burns, Inc., 704 A.2d at 681. The trial court, lacking “a clear measure of
damages,” fashioned a compromise verdict whereby the plaintiff received
compensation for 425 hours of work rather than the 491 hours for which the
plaintiff sought recovery. Noting that “[s]uch compromises in determining
damages are commonplace in litigation and are looked upon with favor by
the courts[,]” this Court affirmed the verdict. Id. at 682.
Instantly, SAI asserted various bases for terminating Ely’s
employment:
(a) Not devoting his best efforts to his position and being
derelict in his duties including defects in management,
oversight in implementing adequate controls;
(b) Failing to track and maintain accurate records of feed;
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(c) Failing to implement policies and procedures as required;
(d) Failing and being unable to offer solutions to manage
[SAI];
(e) Borrowing property of [SAI] for another farm in which
[Ely] had a financial interest without approval of [SAI] and
then lying to cover up these actions;
(f) Misappropriating [SAI] property to his own benefit;
(g) Failing to properly manage the fish stock resulting in loss
of inventory;
(h) Exhibiting poor management skills and not placing people
who were qualified in charge of various aspects of [SAI’s]
operations;
(i) Improperly soliciting [SAI] employees to work on another
fish farm in which [Ely] had an ownership interest while
employed at [SAI];
(j) Falsifying reports to [SAI] about the performance of his
duties;
(k) Permitting a company culture of lies, deceit and
intimidation at [SAI].
SAI’s Answer and New Matter to Ely’s Third Amended Complaint, 7/1/13, at
¶ 9.2
Ely and Isolano offered competing accounts of the events leading to
Ely’s termination. For his part, Ely asserted that SAI and Isolano terminated
his employment because SAI was in financial distress not of Ely’s making. A
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2
The employment contract required Ely to perform his duties to the
“reasonable satisfaction” of SAI. Ely’s Third Amended Complaint, 6/10/13,
at Exhibit A, ¶ 3. On appeal, SAI and Isolano did not challenge the finding
that SAI breached the contract.
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flood devastated the farm in September of 2011. Id. at 123-26. After the
cleanup, SAI needed approximately twelve months to restock and regrow
marketable fish. Id. As a result, SAI laid off several employees in March of
2012. Id. at 127. Ely testified that Isolano was unable to procure
conventional financial lending to support the farm. Id.
Ely testified that he never learned of Isolano’s concerns about Ely’s
performance until Isolano fired him, or in some cases until Isolano’s
deposition. N.T. Trial, 1/13-15/14, at 55-56, 65, 70-71, 75-76, 78-79, 92,
94, 96-102. Ely acknowledged, however, that the agreement permitted
termination without notice. Id. at 151, 199-200. He also acknowledged
mishaps that occurred under his management, including inaccuracies in the
fish count and feed inventory, and several instances in which fish died due to
mistakes. Id. at 160-71.
Ely was responsible for reporting to the United States Fish and Wildlife
Commission the amounts of Chloramine-T SAI used. Id. at 172. Ely signed
a consultant’s name on the report. Id. at 173-76. In addition, SAI was
required to make reports for its National Pollution Discharge permit
concerning the pH level of water SAI discharged into the Susquehanna River.
Id. at 176. Ely acknowledged that he reported pH levels without taking
measurements. Id. at 177. Ely failed to replace a $25 pH pen—a device
used for measuring pH levels in water—after SAI lost its pH pen in the
September 2011 flood. Id. at 177-78.
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Concerning Ely’s mitigation of damages at Aqua Life, Ely testified he
worked at Aqua Life for 30 hours per week after his termination from SAI.
Id. at 189. Ely has a one-third interest in Aqua Life. Id. at 190.3 He
received wages from Aqua Life reported on a W-2 and ownership income
reported on a K-1 form. Id. at 190-91. As an owner, he can deduct
business losses from any taxable income. Id. at 190. Isolano testified that
Ely told Isolano he was merely a passive investor in Aqua Life. Id. at 264.
Ely testified that he did not earn money for his ownership interest in Aqua-
Life because it was not profitable. Id. at 58.
Isolano testified that he bought SAI in part because it had a good
team, including Ely. Id. at 248. Ely worked at SAI for more than twenty
years before Isolano purchased it. Id. at 249. Isolano became unhappy
with Ely’s performance because Ely was unable to account for $280.00 per
week in unaccounted fish feed inventory. Id. at 251-52. Isolano testified
that lost or missing feed inventory would cost SAI roughly $15,000.00 per
year at that rate. Id. Shortly after the September, 2011 flood, Isolano
purchased locks for the feed trailer and missing feed inventory ceased to be
a problem. Id. at 253-54. Likewise, at various times the fish inventory was
20, 30 or as much as fifty percent lower than what Isolano expected it to be.
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3
Brent Blauch (“Blauch”) owns the other two thirds of Aqua Life. Id. at
214. Blauch is the former owner of SAI, and he sold it to the investment
group that made Isolano the president. Id. Blauch testified that he
negotiated the sale with Isolano. Id.
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Id. 255. Isolano claimed Ely and other members of the staff blamed the
loss of fish on predators, such as birds. Id. at 255-56. Isolano testified that
thousands of fish died for lack of oxygen because the staff failed to attach
extra oxygen lines to a raceway and because the staff failed to install a
screen that would allow excess feed—which absorbs oxygen—to flow out of
the raceway. Id. at 259. Isolano also testified that SAI lost a shipment of
purebred striped bass due to the error of Ely or employees under his
oversight. Id. at 271-75.
Ultimately, the jury found SAI in breach of its employment contract
with Ely, and the jury found that Ely did mitigate his damages. Ely argues
that SAI and Isolano did not offer evidence to contradict his $79,539.83 in
alleged damages. Therefore, according to Ely, the jury was required to
award that amount upon finding SAI in breach of the employment contract.
Ely argues the lesser amount does not put him in the position he would have
been in absent the breach, in accordance with Helpin. Given the state of
the record, however, we cannot conclude the jury’s compromise verdict
constitutes an injustice that “stands forth like a beacon.” Frank Burns,
Inc., 704 A.2d at 682. Isolano described several significant and costly
mistakes that occurred at SAI under Ely’s management. Possibly, the jury
issued a compromise verdict based on its belief that Ely’s mistakes did not
warrant termination but did warrant a lesser damages award in his favor.
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Compromise verdicts, as we noted above, are favored in the law. We
discern no basis for disturbing the jury’s verdict in this case.
Next, Ely argues the jury’s inadequate damages award warranted a
new trial. Here, Ely’s motion for a new trial rests on his argument that the
trial court committed an error of law in allowing the compromise verdict to
stand. We therefore need only discern whether the trial court committed an
error of law. Egan, 92 A.3d at 12. For the reasons we explained in
connection with Ely’s first argument, we discern no error of law in the trial
court’s decision to allow the compromise verdict to stand.
Ely’s third assertion of error is that the trial court erred in denying
Ely’s motion for judgment notwithstanding the verdict on his WPCL claim.
Ely argues he is entitled, under the WPCL, to the value of the wages and
fringe benefits SAI would have paid him for the remainder of the contract
term.4
“The WPCL was enacted to provide employees a means of enforcing
payment of wages and compensation withheld by an employer.” Voracek v.
Crown Castle USA Inc., 907 A.2d 1105, 1109 (Pa. Super. 2006), appeal
denied, 919 A.2d 958 (Pa. 2007). “Generally, the underlying purpose of the
WPCL is to remove some of the obstacles employees face in litigation by
providing them with a statutory remedy when an employer breaches its
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4
Ely acknowledges that any recovery under the WPCL would be offset by
the amount the jury awarded him on his breach of contract claim.
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contractual obligation to pay wages.” Id. (quoting Oberneder v. Link
Computer Corp., 674 A.2d 720, 722 (Pa. Super. 1996). “In essence, the
primary goal of the WPCL is to make whole again, employees whose wages
were wrongfully withheld by their employers.” Id. SAI and Isolano argue
that the WPCL does not apply to this case because Ely’s claim is for future
wages rather than wages for work performed. That is, SAI and Isolano
argue that the WPCL does not provide a remedy for expectation damages.
We begin by examining the statutory language. The WPCL defines
wages as all earnings, fringe benefits and wage supplements. 43 P.S.
§ 260.2a. The WPCL defines fringe benefits or wage supplements as “all
monetary employer payments to provide benefits under any employe [sic]
benefit plan [. . .] as well as separation, vacation, holiday, or guaranteed
pay; reimbursement for expenses; union dues withheld from the employes'
pay by the employer; and any other amount to be paid pursuant to an
agreement to the employe [sic].” Id. (emphasis added). Ely relies on
the bolded portion of this quote to support his argument that he can recover
future unearned wages because he was entitled to those wages pursuant to
an agreement.
We observe several flaws in Ely’s argument. First, he relies on the
definition of fringe benefits and wage supplements rather than the definition
of wages. Second, the bolded language provides no guidance as to whether
the WPCL applies to expectation damages in the event of termination of an
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employment contract. Third, Ely relies on precedent, primarily Shaer v.
Orthopaedic Surgeons of Cent. Pennsylvania, Ltd., 938 A.2d 457, (Pa.
Super. 2007), which undercuts his argument. In Shaer, the plaintiff was
employed pursuant to a contract that required the employer to provide the
employee ninety days of salary and benefits upon notice of termination. Id.
at 458-61. The employee filed suit under the WPCL when the employer
terminated and failed to provide the ninety days’ salary and benefits. The
trial court rejected the employee’s claim, reasoning that it was a claim for
unearned wages. Id. at 464. This Court reversed, holding that the
employee could recover the severance pay under the WPCL. “Although a
number of WPCL cases are either federal, trial level, or unpublished, and,
therefore, not controlling, there seems to be consensus among them that
severance pay and other separation related contractual arrangements are
indeed covered by the WPCL.” Id. at 465. The Court relied on an
unpublished memorandum from the Eastern District of Pennsylvania for the
proposition that contractual separation pay is recoverable under the WPCL
because separation pay is distinct from “potential lost future earnings,
which are not covered by the WPCL.” Id. at 465 (emphasis added)
(citing Barsky v. Beasley Mezzanine Holdings, 2004 WL 1921156 (E.D.
Pa. No. 04-1303, August 30, 2004) (unpublished memorandum)). Further,
the Shaer Court relied on the incorporation of separation pay in the
statutory definition of fringe benefits and wage supplements. Id.- 13 -
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Based on Shaer, Ely argues this Court should hold that expected
future earnings under an employment contract are recoverable under the
WPCL because they constitute “any other amount to be paid pursuant to an
agreement to the employe [sic]” pursuant to § 260.2a of the WPCL. To the
contrary, Shear expressly distinguished contractual separation pay from
expected future earnings, noting that § 260.2a expressly includes separation
pay within its definition of fringe benefits.
Instantly, Ely does not seek contractual separation pay. He does not
argue that his employment contract provided for separation pay. Rather, he
seeks future earnings. While precedent on this issue is limited, courts have
uniformly held that the WPCL does not apply to future earnings. Shear;
Weingrad v. Fischer & Porter Co., 47 Pa.D. & C.2d 244, 250 (Bucks
County 1968) (holding that the WPCL did not apply to the employee’s
expected post-termination earnings); Scully v. US Wats, Inc., 238 F.3d
497, 516 (3d Cir. 2001) (“We agree with the general proposition that the
WPCL does not give rise to claims for unearned compensation.”); Barsky;
Allende v. Winter Fruit Distributors, Inc., 709 F. Supp. 597, 599
(E.D.Pa. 1989) (“The WPCL applies only to back wages already earned.”).
Furthermore, § 260.5 of the WPCL, tilted “Employes [sic] who are
separated from payroll before paydays”, provides as follows:
(a) Separated Employes.--Whenever an employer
separates an employe from the payroll, or whenever an
employe quits or resigns his employment, the wages or
compensation earned shall become due and payable not
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later than the next regular payday of his employer on
which such wages would otherwise be due and payable. If
requested by the employe, such payment shall be made by
certified mail.
43 P.S. § 260.5(a). Thus, § 260.5 expressly applies to earned wages for
work performed and makes no provision for unearned future wages. In
short, the statutory language and the available precedent uniformly
contradict Ely’s argument. We therefore conclude that the WPCL does not
apply to Ely’s future earnings under the employment contract. Ely’s
recovery of future earnings is limited to his recovery of expectation damages
for his successful breach of contract cause of action, and not for any claim
under the WPCL.
Ely’s fourth, fifth, sixth and seventh arguments on appeal all pertain to
his WPCL claim. He asserts, respectively, that the trial court erred in
denying his motion for a new trial on the WPCL claim; that the trial court
erred in declining to award liquidated damages pursuant to the WPCL, and
that the trial court made several errors in calculating its award of attorneys’
fees pursuant to the WPCL. Since we have concluded that the WPCL does
not apply, we need not address these arguments.
Ely’s eighth assertion of error is that the trial court erred in declining
to award prejudgment interest. The trial court determined that it could not
award prejudgment interest because Ely failed to request prejudgment
interest in his prayer for relief in his third amended complaint. Ely argues
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that the trial court erred, and that he is entitled to prejudgment interest as
of right.
The trial court in denying prejudgment interest relied on Snyder v.
Barber, 106 A.2d 410 (Pa. 1954). In Snyder, the plaintiff filed an equitable
action seeking to force the Commonwealth’s auditor general to pay amounts
he believed to be due him under legislative salary increases. Id. at 411.
The trial court entered judgment in favor of the plaintiff without interest.
Id. The plaintiff did not request interest on the amount due him until the
trial court asked both parties to submit a final decree. Id. at 412. The trial
court declined to award interest and the Supreme Court affirmed: “A
complainant can be afforded such relief only as he is entitled to under the
allegations of the bill. Id. (emphasis in original). “The order or decree of a
court of chancery should conform to the prayer in the bill.” Id. (emphasis in
original).
The equitable principles cited in Snyder have no application to the
instant action at law. Ely properly cites Fernandez v. Levin, 548 A.2d
1191, 1193 (Pa. 1988), in support of his argument. Therein, the Supreme
Court cited the well-established principle that “[t]he award of interest in a
contract action is a matter of right regardless of when it is demanded.” Id.We further observe that Pennsylvania follows the Restatement (Second) of
Contracts, § 354 with regard to prejudgment interest. Pursuant to § 354(1),
prejudgment interest is a matter of right where the amount is ascertainable
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from the contract. Cresci Constr. Servs., Inc. v. Martin, 64 A.3d 254,
260 (Pa. Super. 2013). Where the amount due and owing is not sufficiently
definite, prejudgment interest is awardable at the discretion of the trial
court. Id.Based on the foregoing, the trial court erred in relying on Snyder to
deny Ely’s request for prejudgment interest. Regardless, SAI and Isolano
argue the trial court’s decision was correct, inasmuch as Ely’s damages were
not ascertainable from the complaint. Ely counters that the value of the
unpaid remainder of his salary and fringe benefits is ascertainable, and that
he is entitled to prejudgment interest as of right.
For an answer, we turn to the language of § 354:
(1) If the breach consists of a failure to pay a definite sum
in money or to render a performance with fixed or ascertainable
monetary value, interest is recoverable from the time for
performance on the amount due less all deductions to which the
party in breach is entitled.
(2) In any other case, such interest may be allowed as
justice requires on the amount that would have been just
compensation had it been paid when performance was due.
Restatement (Second) of Contracts § 354 (1981).
When a plaintiff sues for breach of contract action to recover a
liquidated amount and the jury enters a verdict for a lesser amount the
plaintiff still is entitled to prejudgment interest on the lesser amount. In
Burkholder v. Cherry, 607 A.2d 745 (Pa. Super. 1992), the plaintiff
contractor sued the defendant homeowners for the balance due under a
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construction contract. The contract price for the home was $64,185. Id. at
746. The contractor also alleged $3,589.19 in extra work. Id. The
defendants paid the contractor $35,301.75. Id. The contractor therefore
alleged a balance due of $32,472.44. Id. The homeowners filed a
counterclaim, alleging the contractor’s work was defective and incomplete.
Id. The jury entered a verdict of $18,000 in favor of the contractor. Id.The homeowners argued that the verdict was for an unliquidated sum
because it was impossible to ascertain whether the jury found in their favor
on a portion of their counterclaim. Id. at 747. This Court, after
acknowledging that the law is as stated in the Restatement (Second) of
Contracts §354, disagreed:
The basis for the contractor’s recovery in the instant case
was the construction contract which he had with the owners.
Whether the damages were based on the terms of the contract
or on quantum meruit, it is clear that the owners have had the
use of the contractor’s money since the date on which it was
due. The amount owed, moreover, was sufficiently ascertainable
so that a tender could have been made. We hold, therefore,
that where, as here, the claim is for work done and services
rendered, the claimant is entitled to recover pre-judgment
interest.
Id. at 748.
The rule expressed in Burkholder has long been the law in
Pennsylvania. In Oxford Mfg. Co., Inc. v. Cliff House Bldg. Corp., 307
A.2d 343 (Pa. Super. 1973), this Court wrote as follows:
The lower court in its opinion stated that since defendant
disputed plaintiff’s claim because of defective items, the claimed
sum, although based on contracts, was not liquidated and that
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therefore interest did not accrue thereon. We disagree. In
West Republic Mining Co[.]v. Jones & Laughlins, 108 Pa. 55(1884), an early but leading case, plaintiff sued to recover the
price of certain ore sold and delivered to defendant, defendant
refusing to pay on grounds that the ore did not conform to
samples. The lower court instructed the jury that in their
discretion they could allow or disallow interest. The Supreme
Court of our Commonwealth held this instruction to be error and
further held: ‘A dispute has arisen respecting the performance
of the contract by the plaintiffs, and the amount of the debt,
[b]ut however determined, the debt arises from contract.’
Id. at 344-45. This Court both in Oxford and Burkholder emphasized that
simply because a jury returns a verdict in an amount less than that prayed
for does not convert an otherwise liquidated amount into an unliquidated
amount upon which interest does not accrue. Burkholder 607 A.2d at 748
(citing cases); Oxford 307 A.2d at 344-45. If the rule were otherwise, a
breaching party could always defeat a claim for pre-judgment interest by,
for example, asserting a counterclaim. Id. We therefore conclude that Ely
was entitled to prejudgment interest as of right on the amount of the
judgment in his favor on his breach of contract action. The trial court erred
in finding otherwise.
Ely’s final argument is that the trial court erred in awarding only
$270.34 in litigation costs representing payment for his filing fee and
Sheriff’s service fees. Ely believes he is entitled to $2,348.12 in costs,
including items such as witness fees, copy expenses, and transcript
preparation.
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The trial court, citing Zelenak v. Mikula, 911 A.2d 542 (Pa. Super.
2006), held that record costs—i.e. the filing fee and Sheriff’s service—are
recoverable, whereas actual costs such as witness fees and transcript
preparation are not. The Zelenak Court wrote: “It is a general rule in our
judicial system, stemming from the Statute of Gloucester, 6 Edw. 1, c. 1
(1275), that costs inherent in a law suit are awarded to and should be
recoverable by the prevailing party.” Id. at 544. “Important to our analysis
of all of Appellant’s issues is the distinction between record costs (such as
filing fees) and actual costs (such as transcript costs and witness fees).” Id.
“[T]he law is clear that, absent specific statutory authority otherwise, only
record costs of proceedings in court are recoverable, and not costs of
preparation, consultation, or fees generally[.]” Id. at 545 (quoting Harmer
v. Horsham Hospital, Inc., 431 A.2d 1187, 1188 (Pa. Commw. 1981)).
Thus, the trial court correctly applied the applicable rule, and Ely does
not cite any statutory authority requiring a different result in this case.
Rather, he relies on Smith v. Rohrbaugh, 54 A.3d 892 (Pa. Super. 2012).
In Smith, the prevailing party sought record and actual costs. Id. at 897-
98. The trial court declined that request and asked the prevailing party to
submit a request for record costs only. Id. at 898. The prevailing party
failed to do so, and therefore the trial court denied all costs. Id. This Court
reversed, and held the prevailing party was entitled to $339.93 in record
costs, including filing fees and nominal copying fees for exhibit books the
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trial court ordered the prevailing party to prepare. Id. The costs of exhibit
books were appropriate because the trial court ordered them pursuant to a
pretrial order and the parties therefore had no discretion in the matter. Id.This Court declined to award the prevailing party’s request of more than
$10,000.00 in actual costs, including expert witness fees. Id.Here, the record indicates that the trial court ordered preparation of
exhibit books. Amended Order Preliminary to Trial of Civil Case, 11/4/13, at
2-3. Ely represents that he incurred $675.59 in costs in preparing exhibit
books. We therefore remand for a revised order of costs including the costs
associated with preparation of exhibit notebooks pursuant to the court’s pre-
trial order.
Having disposed of all of Ely’s arguments, we now consider the appeal
of SAI and Isolano at docket number 2018 MDA 2014. SAI and Isolano raise
three issues:
A. The trial court erred in its application of the coordinate
jurisdiction rule in determining that the [WPCL] applied to this
case.
B. The trial court erred in denying SAI and Isolano’s motion in
limine regarding the [WPCL] where Ely’s claim was for
unearned wages.
C. The trial court erred in allowing evidence of SAI’s farm service
agency claim where the evidence was unfairly prejudicial.
Brief of SAI and Isolano, at i. We have already concluded that the WPCL
does not apply to Ely’s claim for unearned wages. For this reason, we will
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vacate the trial court’s order awarding Ely attorneys’ fees pursuant to the
WPCL. We need not address issues A and B further.
The final assertion of error from SAI and Isolano is that the trial court
erred in permitting Ely to introduce evidence of an allegedly inaccurate
application for federal disaster relief from the Farm Service Administration
(“FSA”) after an unexpected heatwave killed a large number of fish at SAI.
Specifically, Ely introduced evidence purporting to show that Isolano grossly
overrepresented the number of fish mortalities at SAI in order to qualify for
relief. Admission of evidence rests within the trial court’s discretion, and we
will reverse only if we find an abuse of discretion. Klein v. Aronchick, 85
A.3d 487, 498 (Pa. Super. 2012), appeal denied, 104 A.3d 5 (Pa. 2014).
“Thus our standard of review is very narrow[.] To constitute reversible
error, an evidentiary ruling must not only be erroneous, but also harmful or
prejudicial to the complaining party.” Id. SAI and Isolano argue that
evidence regarding the disaster relief application was inadmissible because
its probative value was outweighed by the danger of unfair prejudice, as per
Pa.R.E. 403. “Unfair prejudice supporting exclusion of relevant evidence
means a tendency to suggest decision on an improper basis or divert the
jury’s attention away from its duty of weighing the evidence impartially.”
Klein, 85 A.3d at 498. “A witness can be contradicted only on matters
germane to the issue trying. There is no rule more firmly established than
this: ‘No contradiction shall be permitted on collateral matters.’” Id. at 500
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(quoting Hammel v. Christian, 610 A.2d 979, 984 (Pa. Super. 1992),
appeal denied, 624 A.2d 111 (Pa. 1993)).
Ely testified that SAI’s FSA application indicated that SAI lost 366,868
fish as a result of the flood. N.T. Trial, 1/13-15/14, at 120. Ely testified the
number was 51,707. Id. SAI and Isolano objected to the admission of this
evidence, but the trial court found it admissible because it was relevant to
support Ely’s assertion that Isolano fired him because SAI was in serious
financial trouble and not because Ely’s performance was deficient. Trial
Court Opinion, 11/17/14, at 6-8. The trial court also observed that it
permitted Isolano to introduce evidence explaining the discrepancy, which
Isolano did.5
We cannot conclude that the trial court’s decision to admit this
evidence warrants a new trial. SAI and Isolano rely on Klein, a medical
malpractice suit in which the plaintiff claimed she developed kidney disease
as a result of her use of a drug manufactured by the defendant. Klein, 85
A.3d at 489. The trial court permitted the defense to examine the plaintiff
about her history of bulimia. Id. at 500. During a deposition, the plaintiff
denied having bulimia, but the plaintiff’s medical records indicated
otherwise. Id. at 498-500. The history of bulimia, if plaintiff had such a
____________________________________________
5
Isolano testified that Ely relied on piecemeal documentation to support his
allegation that Isolano overrepresented the number of fish mortalities. N.T.
Trial, 1/13-15/14, at 276-82.
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history, occurred decades prior to the events giving rise to the litigation and
had no bearing on the plaintiff’s kidney disease. Id. at 498. The defense
used the issue purely to challenge the plaintiff’s credibility. This Court
concluded that a new trial was necessary because the plaintiff’s history of
bulimia, or lack thereof, had nothing to do with the issues before the trial
court. Id. at 500-01.
Instantly, unlike in Klien, the challenged evidence relates to the time
period relevant to the litigation. This case is further distinct from Klein in
that both parties used the FSA application issue to cast aspersions on the
other side’s credibility. Ely introduced documentation to support his
assertion that Isolano overrepresented the number of fish mortalities.
Isolano testified, consistently with his assertions of other deficiencies in
record keeping under Ely’s management, that Ely compiled data that was
inaccurate, incomplete, and unreliable. As a matter of law, we cannot say
the trial court abused its discretion in admitting the FSA evidence. Further,
the accuracy of the FSA application was a small piece of a substantial body
of evidence the parties placed before the jury over the course of the trial.
To the extent the trial court may have erred in permitting Ely to examine
Isolano on the accuracy of the FSA application, we conclude the error was
harmless.
Based on all of the foregoing, we vacate the judgment of November
24, 2014 awarding $24,412.34 in attorneys’ fees pursuant to the WPCL. We
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affirm the judgment of $39,600.00 against SAI in all respects except for the
trial court’s award of costs and its refusal to award prejudgment interest.
On those issues, we vacate and remand for further proceedings consistent
with this opinion.
Judgment of $24,412.34 vacated. Judgment of $39,600.00 affirmed in
part and vacated in part. Case remanded for further proceedings consistent
with this opinion. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2015
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