Sycamore Restaurant Group, LLC v. Stampfi Hartke Associates, LLC , 174 A.3d 651 ( 2017 )


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  • J-A27026-16
    
    2017 PA Super 221
    SYCAMORE RESTAURANT GROUP, LLC                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    STAMPFI HARTKE ASSOCIATES, LLC
    Appellant                 No. 2547 EDA 2015
    Appeal from the Order May 21, 2015
    In the Court of Common Pleas of Montgomery County
    Civil Division at No(s): 2011-34020
    *****
    SYCAMORE RESTAURANT GROUP, LLC                    IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellee
    v.
    STAMPFI HARTKE ASSOCIATES, LLC
    Appellant                 No. 2563 EDA 2015
    Appeal from the Order May 21, 2015
    In the Court of Common Pleas of Montgomery County
    Civil Division at No(s): 2011-34020
    BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*
    OPINION BY LAZARUS, J.:                                 FILED JULY 12, 2017
    ____________________________________________
    *
    Former Justice specially assigned to the Superior Court.
    J-A27026-16
    Sycamore Restaurant Group, LLC (“Sycamore”), appeals from the
    order, entered in the Court of Common Pleas of Montgomery County, which
    granted construction delay damages in its favor in the amount of
    $20,332.59.1 After careful review, we affirm.
    Sycamore initiated the instant action in December 2011, asserting
    Stampfi breached an architectural and engineering services contract with
    Sycamore for construction of a new restaurant. A non-jury trial was held on
    May 14 and 15, 2015. The court’s decision, finding in favor of Sycamore in
    the amount of $20,332.59, plus costs, was docketed on May 22, 2015.
    Thereafter, Sycamore filed a post-trial motion on June 1, 2015,2 asserting
    that the Court erred by failing to consider certain evidence and testimony in
    ____________________________________________
    1
    Sycamore appeals on the basis that the damages award is inadequate.
    Stampfi Hartke Associates, LLC (“Stampfi”), has filed a consolidated cross-
    appeal in this matter, arguing that damages were awarded to Sycamore in
    error. As discussed infra, Stampfi has waived all issues on appeal.
    2
    We note that Sycamore timely served the motion on opposing counsel, but
    the certificate of service indicates it failed to provide a copy of the motion to
    the trial court at the same time. See Pa.R.C.P. 227.1(f) (“The party filing a
    post-trial motion shall serve a copy promptly upon every other party to the
    action and deliver a copy to the trial judge.”).             However, the court
    considered the motion to be timely and Stampfi did not object. Accordingly,
    we find the motion adequately preserved Sycamore’s issue raised on appeal.
    See Watkins v. Watkins, 
    775 A.2d 841
    , 845 n.1 (Pa. Super. 2001)
    (“Whenever a party files post-trial motions at a time when the court has
    jurisdiction over the matter but outside the ten-day requirement of Pa.R.C.P.
    227.1, the trial court’s decision to consider the motions should not be
    subject to review unless the opposing party objects.” (quoting Mammoccio
    v. 1818 Market Partnership, 
    734 A.2d 23
    , 27 (Pa. Super. 1999)).
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    reaching its decision, and thus, the damages award is inadequate. Stampfi
    filed a post-trial motion on July 1, 2015, asserting that the court erred in
    awarding damages to Sycamore.3 The court denied both post-trial motions
    on August 4, 2015, and entered judgment in favor of Sycamore on August
    12, 2015.     Sycamore and Stampfi each filed timely notices of appeal and
    court-ordered concise statements of errors complained of on appeal
    pursuant to Pa.R.A.P. 1925(b).
    On appeal, Sycamore raises the following question for our review:
    Did the lower court commit legal error and/or abuse its
    discretion, by entering an inadequate verdict in favor of
    Sycamore, based solely on money damages of $20,332.59 for
    construction completion delay (for rent and construction loan
    interest associated with the extra time need[ed] to complete the
    unanticipated rock removal and dewatering), but excluding the
    credible and uncontroverted evidence of additional money
    damages for the $197,009.12 of costs actually incurred by
    Sycamore for [the] unanticipated rock removal and dewatering?
    Brief for Appellant, at 3.
    ____________________________________________
    3
    We note that Stampfi’s post-trial motion was untimely, since it was filed
    more than 10 days after Sycamore filed its post-trial motion on June 1,
    2015. See Pa.R.C.P. 227.1(c) (“If a party has filed a timely post-trial
    motion, any other party may file a post-trial motion within ten days after the
    filing of the first post-trial motion.”). Additionally, Sycamore objected to the
    timeliness of Stampfi’s post-trial motion in its answer to the motion and at
    argument. On this basis, the trial court found Stampfi’s post-trial motion did
    not preserve its claims on appeal. We are constrained to agree. See
    Kennel v. Thomas, 
    804 A.2d 667
    , 668 (Pa. Super. 2002) (where trial court
    refused to address merits of appellant’s issues raised in untimely post-trial
    motions, issues were waived and not preserved for purposes of appellate
    review).
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    On February 17, 2016, the trial court issued its Rule 1925(a) opinion in
    which it requested that this Court quash both parties’ appeals. Further, the
    trial court declined to address the issue of damages on the basis that both
    parties delayed in requesting that the trial notes be transcribed. 4 This could
    be grounds for dismissal in our Court pursuant to Rule 1911; however, the
    trial court did not file its Rule 1925(a) opinion until February 17, 2016, a
    ____________________________________________
    4
    Pursuant to Pa.R.A.P. 1911, an appellant shall request and pay for any
    necessary transcript in an appeal, and where a cross appeal has been taken,
    the cross-appellant shares the duty to file and pay for necessary transcripts.
    Pa.R.A.P. 1911(a), (b). The Pennsylvania Rules of Judicial Administration
    specify that the request for a transcript in an appeal “shall be made part of
    the notice of appeal.” Pa.R.J.A. 5000.5(b). Further, if an appellant “fails to
    take the action required by . . . the Pennsylvania Rules of Judicial
    Administration for the preparation of the transcript, the appellate court may
    take such action as it deems appropriate, which may include dismissal of the
    appeal.” Pa.R.A.P. 1911(d). Indeed, in cases where the appellant has failed
    to request the trial transcript at any point during the pendency of the
    appeal, this Court has found it appropriate to dismiss the matter. See
    Smith v. Smith, 
    637 A.2d 622
    , 624 (Pa. Super. 1993) (appropriate to
    quash appeal where appellant challenged order of support on grounds
    necessitating review of hearing transcript but did not make transcript official
    part of record); see also Gorniak v. Gorniak, 
    504 A.2d 1262
    , 1264 (Pa.
    Super. 1986) (appeal properly dismissed where appellant failed to file order
    for transcript of proceedings). Instantly, both parties failed to request the
    trial transcript with their notices of appeal, which were filed in August 2015.
    On September 5, 2015, counsel for Sycamore inquired about the cost to
    have the trial proceedings transcribed. Counsel for both parties were
    informed on September 18, 2015, of the required deposit of 50 percent of
    the transcription costs as allowed by Pa.R.J.A. 5000.6. Stampfi’s counsel
    ultimately paid the required deposit on January 28, 2016. The stenographer
    completed the transcript and filed it on February 10, 2016. The trial court
    correctly observes that the necessary deposit for the transcript was not paid
    for 7 months after the filing of post-trial motions and 5 months after the
    filing of the notices of appeal in this matter.
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    week after the trial transcript was completed and filed.      Accordingly, we
    determined the trial court could have reviewed the transcript and produced a
    Rule 1925(a) opinion analyzing the merits of the issue raised on appeal and
    addressing its determination of damages. Therefore, on January 14, 2016,
    we remanded this case for the trial court to file a supplemental opinion
    addressing Sycamore’s claim. On March 24, 2017, the trial court issued an
    opinion on remand, finding Sycamore’s issue on appeal to be meritless. The
    same issue now before us, we proceed with our review.
    Our standard in reviewing a court order entered after a bench trial is
    limited: “[This Court] will reverse a court order . . . only if the decision is
    based on an error of law or on factual findings that are unsupported by
    evidence of record.” Agliori v. Metropolitan Life Ins. Co., 
    879 A.2d 315
    ,
    318, p.p. (Pa. Super. 2006) (internal citation omitted).
    Here, Sycamore avers the trial court erred where it did not admit
    change request documents that Sycamore contends prove $197,009.12 in
    additional damages. We disagree.
    “Admissibility of evidence depends on relevance and probative value.
    Evidence is relevant if it logically tends to establish a material fact in the
    case, tends to make a fact at issue more or less probable or supports a
    reasonable inference or presumption regarding a material fact.”       Klein v.
    Aronchick, 
    85 A.3d 487
     (Pa. Super. 2014). The court my exclude relevant
    evidence if its probative value is outweighed by a danger of unfair prejudice.
    See Pa.R.E. 403.    “[Q]uestions regarding the admissibility or exclusion of
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    evidence are within the sound discretion of the trial court and will not be
    disturbed absent an abuse of discretion.” Spino v. John S. Tilley Ladder
    Co., 
    671 A.3d 726
    , 734 (Pa. Super. 1997). However, “[a]n abuse of
    discretion may not be found merely because an appellate court might have
    reached a different conclusion, but requires a manifest unreasonableness, or
    partiality, prejudice, bias, or ill-will, or such lack of support so as to be
    clearly erroneous.”      Grady v. Frito-Lay, Inc., 
    839 A.2d 1038
    , 1046 (Pa.
    2003).
    Furthermore, the proponent of evidence must satisfy the requirement
    of authenticating or identifying an item of evidence by proving that the item
    is what the proponent claims it is.            Pa.R.E. 901.   “A document may be
    authenticated, as a condition precedent to admissibility, by direct proof
    and/or by circumstantial evidence; proof of any circumstances which will
    support a finding that the writing is genuine will suffice to authenticate the
    writing.” Zuk v. Zuk, 
    55 A.3d 102
    , 111 (Pa. Super. 2012).
    First, we address Sycamore’s assertion that the change request
    documents were admissible into evidence as modifications to the parties’
    Construction Contract.5 This argument is unavailing.
    ____________________________________________
    5
    Sycamore cites no authority in support of its argument that, contrary to
    the contract’s plain language, the change request documents should be
    viewed as change orders pursuant to the Construction Contract.        See
    Childers v. Power Line Equip. Rentals, Inc., 
    681 A.2d 201
    , 211 (Pa.
    Super. 1996) (issues identified on appeal but unsupported by citation to
    proper authorities are deemed to have been abandoned).
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    J-A27026-16
    In interpreting a contract, this Court need not defer to the conclusions
    of the trial court and is free to draw its own inferences.6         Southwestern
    Energy Production Co. v. Forest Resources, LLC, 
    83 A.3d 177
     (Pa.
    Super. 2015). In interpreting the language of a contract, courts attempt to
    ascertain the intent of the parties and give it effect. LJL Transp., Inc. v.
    Pilot Air Freight Corp., 962 A.2d. 639, 648 (Pa. 2009). When the words of
    an agreement are clear and unambiguous, the court ascertains the intent of
    the parties from the language used in the agreement, which it will give its
    commonly accepted and plain meaning. 
    Id.
     We must construe a contract
    only as written and may not modify plain meaning under the guise of
    interpretation. Southwestern Energy, 93 A.3d at 183.
    Paragraph 7.2.1 of the Construction Contract reads as follows:
    A Change Order is a written instrument prepared by the
    Architect and signed by the Owner, Contractor and Architect,
    stating their agreement upon all of the following:
    [1.]   change in the work[;]
    [2.]   the amount of the adjustment, if any, in the Contract
    Sum; and
    [3.]   the extent of the adjustment, if any, in the Contract
    Time.
    General Conditions of the Contract for Construction, 4/3/08, at 23. Stampfi
    agreed to provide Sycamore the following services: “architectural design,
    documentation,       structural     engineering,   interior   design,   mechanical,
    ____________________________________________
    6
    The trial court did not address this issue in its Rule 1925(a) opinion.
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    electrical, plumbing drawings and construction administration.” Professional
    Services Agreement, 8/13/07, at 2.
    Reading   the   plain   language   of   the   Construction   Contract   and
    Professional Services Agreement together, we find the change request
    documents are not modifications to the Construction Contract. See Huegel
    v. Mifflin Const. Co., Inc., 
    796 A.2d 350
    , 354 (Pa. Super. 2002) (“Where
    several instruments are made as a part of one transaction they will be read
    together, and each will be construed with reference to the other; and this is
    so although the instruments may have been executed at different times and
    do not in terms refer to each other.”).        The plain language of the two
    contracts reveals the intent of the parties was for the architect, Stampfi, not
    the contractor, Designline, to prepare Change Orders.          Additionally, the
    owner, contractor and architect are not signatories to the change request
    documents proffered by Sycamore pursuant to the construction contract, nor
    do they specify the adjustments in the contract time.
    Next, Sycamore argues that the trial court should have considered the
    testimony of Sycamore’s sole witness, managing partner Robert Stein,
    regarding the additional costs of rock removal and dewatering, even
    assuming arguendo, it was proper for the trial court to rule that the change
    request documents were inadmissible. At trial, Sycamore argued the change
    request documents were admissible under two exceptions to the hearsay
    rule: as a statement against interest of an unavailable witness, Pa.R.E.
    804(b)(3), and as a business record, 803(6).         On remand, the trial court
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    determined that the change request documents purporting to show rock
    removal and dewatering costs were inadmissible pursuant to Pa.R.E. 804
    and/or 803. We agree.7
    The hearsay exception for an unavailable declarant provides, in
    relevant part:
    (a) Criteria for Being Unavailable. A declarant is considered
    to be unavailable as a witness if the declarant:
    (5) is absent from the trial or hearing and the statement’s
    proponent has not been able, by process or other
    reasonable means, to procure:
    (B) the declarant’s attendance or testimony, in the
    case of a hearsay exception under Rule 804(b)(2),
    (3), or (4)
    (b) The Exceptions. The following are not excluded by the rule
    against hearsay if the declarant is unavailable as a witness:
    (3) Statement Against Interest. A statement that:
    (A) a reasonable person in the declarant’s position
    would have made only if the person believed it to be
    true, because, when made, it was so contrary to
    the declarant’s proprietary or pecuniary
    interest or had so great a tendency to
    invalidate    the    declarant’s  claim    against
    someone else or to expose the declarant to civil
    or criminal liability[.]
    ____________________________________________
    7
    Sycamore does not raise these issues in their brief, however, we find these
    particular issues are germane to our analysis of whether the trial court erred
    in not considering Stein’s testimony regarding rock removal and dewatering
    costs.
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    Pa.R.E. 804 (emphasis added). The proponent of a statement made by an
    unavailable    declarant   must   establish    the    proponent   took   reasonable
    measures to procure the declarant’s attendance. Consolidated Rail Corp.
    v. Delaware River Port Authority, 
    880 A.2d 628
    , 631 (Pa. Super. 2005).
    Declarations against pecuniary or proprietary interest are admissible as a
    hearsay exception, which, as a threshold matter, require a finding of
    unavailability of the declarant. See Heddings v. Steele, 
    526 A.2d 349
    , 352
    (Pa. 1987).
    Here, Designline’s unavailability is irrelevant. The change request
    documents do not constitute statements that fall under any of the Rule
    804(b) exceptions.     Stampfi is not the declarant of the statements (i.e.,
    change   request     documents)     proffered        by   Sycamore,   contradicting
    Sycamore’s assertion that, collectively, the change request documents
    constitute “a statement against [Stampfi’s] interest.” N.T. Trial, 5/14/17, at
    117. As the trial court noted, the change request documents are “at best,
    statements by Designline.” N.T. Trial, 5/14/17, at 118.
    The business records exception provides, in relevant part:
    (6) Records of a Regularly Conducted Activity. A record
    (which includes a memorandum, report, or data compilation in
    any form) of an act, event or condition if,
    (A) the record was made at or near the time by—or from
    information transmitted by—someone with knowledge;
    (B) the record was kept in the course of a regularly
    conducted activity of a “business”, which term includes
    business, institution, association, profession, occupation,
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    and calling of every kind, whether or not conducted for
    profit;
    (C) making the record was a regular practice of that
    activity;
    (D) all these conditions are shown by the testimony of the
    custodian or another qualified witness, or by a certification
    that complies with Rule 902(11) or (12) or with a statute
    permitting certification; and
    (E) neither the source of information nor               other
    circumstances indicate a lack of trustworthiness.
    Pa.R.E. 803(6).
    For purposes of Pa.R.E. 803(6), while a qualified witness need not
    have personal knowledge, the individual must be able to provide sufficient
    information relating to the preparation and maintenance of the records to
    justify a presumption of trustworthiness. Keystone Dedicated Logistics,
    LLC v. JGB Enterprises, Inc., 
    77 A.3d 1
    , 13 (Pa. Super. 2013).           Merely
    characterizing a document as a business record is insufficient to justify its
    admission, because a business record, which contains multiple levels of
    hearsay, is admissible only if each level falls within a recognized exception to
    the hearsay rule.    Birt v. Firstenergy Corp., 
    891 A.2d 1281
    , 1291 (Pa.
    Super. 2006).       Furthermore, while a qualified witness need not have
    personal knowledge, the individual must be able to provide sufficient
    information relating to the preparation and maintenance of the records to
    justify a presumption of trustworthiness.     Keystone Dedicated Logistics,
    
    77 A.3d at 1
    .     In evaluating the trustworthiness of business records, the
    court will look to the sources of the information therein, method and time of
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    preparation,    and   the   qualifications   of   the   custodial   witness.      See
    Commonwealth Financial Systems, Inc. v. Smith, 
    15 A.3d 492
     (Pa.
    Super. 2011).
    At trial, Sycamore asserted that the “change orders, once they were
    delivered to Sycamore, became Sycamore’s business records.”               N.T. Trial,
    5/14/15, at 15. We find Commonwealth Financial Systems instructive.
    There, NCOP Capital (NCOP) purchased the credit card debt of the appellee,
    Larry Smith, from Citibank.        Later, appellant, Commonwealth Financial
    Systems (CFS), purchased Smith’s credit card debt from NCOP.                   After a
    verdict was entered in Smith’s favor in an action to collect credit card debt,
    CFS appealed, contesting the trial court’s failure to allow the admission of
    business records into evidence. At trial, CFS sought to introduce documents
    it received, electronically, from NCOP.      The trial court denied the request.
    CFS’ only witness was the vice-president responsible for overseeing its
    portfolio collection division. CFS’ vice president testified he was not familiar
    with how either Citibank or NCOP created, maintained or transmitted their
    business records.     Additionally, CFS’ vice president did not have personal
    knowledge of whether business records received from NCOP where prepared
    at or near the time of the documented events or by someone with personal
    knowledge. This court affirmed, citing the fact that CFS failed to establish
    the business records they sought to introduce were sufficiently authenticated
    and trustworthy. See Commonwealth Financial Systems, 
    15 A.3d at
    500
    - 12 -
    J-A27026-16
    (“The record also supports the trial court’s finding that CFS failed to
    establish the trustworthiness of its documents.”).
    Similarly, here, Sycamore was the recipient, not the preparer, of
    various change requests documents prepared by Designline.           Sycamore’s
    only witness at trial was Stein, a managing partner.        Sycamore typically
    received change requests documents by mail, maintained the documents at
    a construction site trailer maintained by Sycamore, copied the documents,
    and occasionally transmitted the documents to relevant parties via email or
    hand-to-hand exchange. Some of the documents were signed by an agent
    of Sycamore, but that agent was not present to testify at trial. Absent from
    the record is an account, by Stein or otherwise, of how the change orders
    were created and/or calculated, the methods by which Designline maintained
    the documents, and/or who from Designline transmitted the documents to
    Sycamore. See Commonwealth Financial Systems, 
    15 A.3d at 492
     (trial
    court acted within discretion in finding documents proffered by appellant to
    be insufficiently authenticated and untrustworthy and thus inadmissible;
    custodial witness stated records had been qualified and had no further
    knowledge     of   records).   Moreover,     Stein   was   unable   to   provide
    circumstantial evidence corroborating the authenticity of the change order
    documents (e.g., bank records verifying payment of change orders from the
    construction lender or Sycamore).     See Keystone Dedicated Logistics,
    
    supra.
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    In Commonwealth Financial Systems, CFS urged this Court to
    adopt the federal “rule of incorporation,” which allows the trial court to admit
    documents prepared by a third party as business records of the acquiring
    business, if the business integrated the documents into its records and relied
    upon them.       See U.S. v. Adefehiniti, 
    510 F.3d 319
    , 326 (D.C. Cir. 2007).
    However, this Court declined to adopt the rule of incorporation, on the basis
    that “the Pennsylvania Supreme Court has not seen fit to adopt the rule of
    incorporation.”     Commonwealth Financial Systems, 
    15 A.3d at 500
    .
    Thus, Stein’s assertion that he, as a managing partner of Sycamore, was
    satisfied with the authenticity of the change request documents and made
    payments in reliance upon the change requests is also insufficient. Pa.R.E.
    803(6). Commonwealth Financial Systems, 
    supra.
    In    sum,    the   record      at   hand     is    insufficient   to    establish    the
    trustworthiness     of    the    change     request        documents,         which,     despite
    Sycamore’s attempts to recast the documents as its own, were created by a
    third party. Sycamore did not corroborate Stein’s testimony that it incurred
    $197,009.12 for the cost of rock removal with any documentation, or with
    the testimony of custodians from the construction lender, damages experts
    or other witnesses.       See Vrabel v. Commonwealth, 
    844 A.2d 595
     (Pa.
    Commw. Ct. 2004) (amount of pecuniary damages cannot be presumed but
    must be proved by establishment of facts). Additionally, the trial court did
    not   err   in   excluding      the   change      order     documents         from     evidence.
    Consequently, the trial court had no credible evidence to discern the
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    appropriate amount of damages for rock removal and dewatering costs.
    Accordingly, we do not find that the trial court abused its discretion in
    discounting Stein’s testimony regarding the total amount of pecuniary
    damages. As the finder of fact, the trial court was in the best position to
    determine the trustworthiness of the change requests documents, as well as
    the credibility of Stein’s testimony. We shall not substitute our judgment of
    that of the trial court.
    In light of the foregoing, we do not find that the verdict is so contrary
    to the evidence as to shock one’s sense of justice. See Agliori, supra. The
    trial court did not err in granting Stampfi’s motion for nonsuit and only
    finding Stampfi liable for costs associated with 30 days’ rent and interest.
    Order affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/12/2017
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