700 EBA, LLC v. Weaver's Glass & Bldg. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
700 EBA, LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WEAVER’S GLASS & BUILDING
SPECIALTIES, INC.
Appellant No. 1868 MDA 2016
Appeal from the Order Entered October 21, 2016
In the Court of Common Pleas of Centre County
Civil Division at No(s): 2013-4426
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 10, 2017
Weaver’s Glass & Building Specialties, Inc. (“Weaver’s Glass”) appeals
from the October 21, 2016 order in the Centre County Court of Common
Pleas entering judgment in favor of 700 EBA, LLC (“700 EBA”) and against
Weaver’s Glass in the amount of $67,420.25. We affirm.
In 2005, Weaver’s Glass contracted with 700 EBA to furnish and install
35 windows and two doors in a building located at 700 Beaver Avenue, State
College, Pennsylvania. Weaver’s Glass completed the required work, and
700 EBA paid the contract price. Of the 35 windows installed, 21 were
Kawneer 451T model windows.
In 2012, 700 EBA detected “major window failure” in connection with
the Kawneer 451T model windows, including water penetration into the
building in heavy rain.
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On November 12, 2013, 700 EBA commenced an action against
Weaver’s Glass. On July 28, 2015, 700 EBA filed an amended complaint,
which included a claim that Weaver’s Glass breached the contract by
improperly installing the windows.1
On October 17, 2016, following a bench trial, the trial court entered
judgment in favor of 700 EBA and against Weaver’s Glass for breach of
contract. The trial court awarded damages in the amount of $67,420.25
plus costs. The damages included the cost of replacing the windows, despite
Weaver’s Glass’s claim that replacement of the windows was not necessary
to correct the problem.
On October 25, 2016, Weaver’s Glass filed a motion for post-trial
relief, which the trial court denied on October 27, 2016. On November 14,
2016, Weaver’s Glass filed a timely notice of appeal.
Weaver’s Glass raises the following issue on appeal:
Whether a trial court’s damages award after a non-jury
trial, which includes the cost of new windows to replace
allegedly leaking ones, should be reduced to the lesser
cost of fixing the windows where the trial court did not and
could not find that replacement was necessary and [700
EBA’s] own expert testified that replacement was not
necessary?
Weaver’s Glass Br. at 3.
____________________________________________
1
The amended complaint also asserted claims for breach of warranty,
which were dismissed prior to trial, and a fraudulent concealment claim,
which was dismissed during trial.
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We apply the following standard of review to challenges to a non-jury
verdict:
Our appellate role in cases arising from non-jury trial
verdicts is to determine whether the findings of the trial
court are supported by competent evidence and whether
the trial court committed error in any application of the
law. The findings of fact of the trial judge must be given
the same weight and effect on appeal as the verdict of a
jury. We consider the evidence in a light most favorable to
the verdict winner. We will reverse the trial court only if
its findings of fact are not supported by competent
evidence in the record or if its findings are premised on an
error of law. However, [where] the issue . . . concerns a
question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating
from a non-jury trial are not binding on an appellate court
because it is the appellate court’s duty to determine if the
trial court correctly applied the law to the facts of the case.
Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664-
65 (Pa.Super. 2014) (quoting Wyatt, Inc. v. Citizens Bank of Pa., 976
A.2d 557, 564 (Pa.Super.2009)). Further, in addressing an award of
damages, our Supreme Court has stated: “In reviewing the award of
damages, the appellate courts should give deference to the decisions of the
trier of fact who is usually in a superior position to appraise and weigh the
evidence.” Ferrer v. Trustees of Univ. of Pa., 825 A.2d 591, 611 (Pa.
2002) (quoting Delahanty v. First Pa. Bank, 464 A.2d 1243, 1257
(Pa.Super. 1983)).
Weaver’s Glass argues that the windows could have been repaired,
rather than replaced, and, therefore, the trial court erred in awarding
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damages based on the replacement cost of the windows. The claim does not
merit relief.
The trial court concluded:
The expert report from Architectural Testing, Inc.
states:
To prevent further water leakage and associated
damage to the building, the window system
must be remediated in accordance with
manufacturer instructions or replaced.
Exhibit P-12 (emphasis added).
The expert report from Kawneer Company states:
Kawneer[’s] recommendation is for the product
frames to be removed, and then follow Kawneer
instructions 451-VG-970 for all seals and
installation of the sub-sill and frame.
Exhibit P-13.
A quote for the replacement of [700 EBA’s] twenty-one
(21) windows, which was given by Nittany Building
Specialties, Inc. (“Nittany Building”), totals $57,500.00.
Exhibit P-8. A Nittany Building representative testified at
trial that simply reinstalling the existing windows would be
a liability and Nittany Building would not undertake such a
project.
...
The Court received evidence and heard credible
testimony which established the replacement of all twenty-
one (21) of [700 EBA’s] windows was a sufficient remedy
for the damages caused by [Weaver’s Glass]. Thus, the
Court’s award is reasonable as it achieves the purpose of
making [700 EBA] whole.
Opinion in Response to Matters Complained of on Appeal, 12/2/16, at 2-3.
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We conclude that the trial court’s finding that replacement of the
windows was a reasonable remedy for the damage caused by the breach of
contract is supported by the record. Terry Deaven, the owner of Nittany
Building, testified that, due to liability concerns, his company would not have
completed the work if required to use the existing windows. N.T., 10/17/16,
at 99. He further testified that it could cost more money to repair the
existing windows than to replace them, because “[e]verything has to come
out to get to at least the known problem and then the unknown problems.”
Id. at 100-01. Further, Richard Merkert, a consultant in building and
construction, testified that the windows should be repaired or replaced. Id.
at 78. He further testified that the work proposed by Nittany Building to
address the problem was reasonable and appropriate, id. at 79, and that the
quoted cost was reasonable, id. In addition, Merkert testified that if a
company were to remove the windows, it may find additional problems,
which could cost more to resolve than the cost of replacement windows. Id.
at 93.
Therefore, we conclude that the trial court did not err in awarding
damages based on the replacement cost of the windows.
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Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2017
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