Koller Concrete, Inc. v. Tube City IMS, LLC , 2015 Pa. Super. 92 ( 2015 )

J-A09019-15
2015 Pa. Super. 92
KOLLER CONCRETE, INC., : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
TUBE CITY IMS, LLC, :
:
Appellant : No. 2028 EDA 2014
Appeal from the Judgment entered June 25, 2014,
Court of Common Pleas, Northampton County,
Civil Division at No. C-0048-CV-2011-00629
BEFORE: BOWES, DONOHUE and STABILE, JJ.
OPINION BY DONOHUE, J.: FILED APRIL 21, 2015
Tube City, LLC (“Tube City”) appeals from the judgment entered in the
amount of $34,7138.39 for Appellee, Koller Concrete, Inc. (“Koller”).
Following our review, we affirm.
The basic facts underlying this appeal are as follows. Koller produces
concrete for contractors to use in commercial and residential projects. 1
Koller blends concrete for its customers to meet the specific requirements of
each particular job. In 1995, Koller began to purchase a particular cement,
Waycem, from Tube City for use in its concrete mixtures. Koller found that
Waycem added strength to its concrete mixtures and therefore favored the
product. This product appealed to Koller because Waycem was made with
ground granulated blast-furnace slag, which contributed to this increased
1
Concrete is a mixture of multiple components, one of which is cement.
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strength. Tube City always represented that Waycem was made with
ground granulated blast-furnace slag and that it met the specifications of the
industry’s standard for ground granulated blast-furnace slag, C989.
In early 2006, Koller began to receive complaints on a number of
projects, all of which used concrete that contained Waycem.2 William
Lambert (“Lambert”), a long-time employee and technician for Koller,
responded to these complaints by visiting the jobsites to inspect the
concrete. He observed severe cracking and other defects that he had not
previously seen occur with Koller concrete. In February 2007, Lambert had
samples of the concrete taken from one project, the Tobyhanna Army Depot
project, for petrographic analysis.3 According to Koller, the analyses of
these core samples revealed that they contained no ground granulated blast-
furnace slag. Koller eventually became aware that the plant from which
Tube City received the components to create Waycem closed on February
17, 2006. Based on all of this information, Koller came to suspect that in
2006, Tube City sold it Waycem that was made with air-cooled slag instead
of ground granulated blast-furnace slag. Lambert confronted Tube City with
these suspicions. Tube City admitted that it had experimented internally
2
At issue in this appeal are five particular projects. Although Koller received
complaints about these projects at various times between March 2006 and
March 2009, Koller supplied the concrete for all of these projects in 2006.
3
In 2009, Koller also sent samples from the Simon project for petrographic
analysis. In both instances, the samples were taken by a method called
“coring,” in which cylinders were bored into the concrete at multiple points.
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with making Waycem with air-cooled slag, but denied selling any product
containing air-cooled slag.
On March 13, 2009, Koller filed a complaint against Tube City raising
claims of breach of contract, unjust enrichment, detrimental reliance, breach
of express warranties, breach of the implied warranty of merchantability,
breach of the implied warranty of fitness for particular purpose, fraud,
negligent misrepresentation, violations of the Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”), and sought attorneys’ fees and
punitive damages. A jury trial commenced on February 10, 2014. At the
close of the evidence, the trial court granted Tube City’s motion for nonsuit
on Koller’s UTPCPL, attorneys’ fees and punitive damages claims. The jury
returned a verdict in Koller’s favor on the remaining counts and awarded it
damages in the amount of $347,138.19. Tube City filed timely post-trial
motions, seeking JNOV, a new trial, or remittitur on the amount of the
verdict. Following argument, the trial court denied these motions. This
appeal followed.4
Tube City presents the following issues for our review:
1. Whether the [trial] court erred in rendering
evidentiary rulings that resulted in bias to [Tube
City]?
4
The trial court did not author an opinion addressing the issues Tube City
raised on appeal, electing to rely on its opinion disposing of Tube City’s post-
trial motion. See Pennsylvania Rule of Appellate Procedure 1925(a)
Statement, 7/28/14.
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2. Whether the trial court erred in failing to enter a
directed verdict in favor of [Tube City] and failing
to strike [Koller’s] claims where [Koller] failed to
prove the required elements of its claims and
where a new trial is required in the interest of
justice?
3. Whether the trial court erred in precluding
disclosure of certain documents in [Koller’s]
expert’s file under the guise of the attorney[-
]client privilege?
Tube City’s Brief at 4.
Tube City first challenges multiple evidentiary rulings made by the trial
court both prior to and during trial. “[I]t is well settled that the admissibility
of evidence is a determination left to the sound discretion of the trial court,
and it will not be overturned absent an abuse of discretion or misapplication
of law.” Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super. 2011) (quoting
Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010)). For a
ruling on the admissibility of evidence to constitute reversible error, it must
have been harmful or prejudicial to the complaining party. Id.
Tube City begins by challenging the trial court’s denial of its motion to
exclude Koller’s core samples because Koller failed to establish a credible
and complete chain of custody. Tube City’s Brief at 26. The record reveals
that prior to trial, Tube City sought the exclusion of the core samples on this
basis. After hearing testimony, the trial court concluded that Koller had
provided sufficient evidence to establish a chain of custody and “determined
that any gaps in the chain were matters for the jury, going to the weight,
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and not the admissibility[,] of the evidence.” Trial Court Order, 6/25/14, at
5. We can find no abuse of discretion in this decision.
“To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a
finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).
Tangible evidence is authenticated properly by the establishment, through
direct or circumstantial evidence, of a reasonable inference that the identity
and condition of the item remained unimpaired until it was presented at trial.
See Commonwealth v. Judge, 648 A.2d 1222, 1224 (Pa. Super. 1994).
One way of creating this inference is by establishing a chain of custody of
the item.
Chain of custody is circumstantial authentication that
accounts for the thereabouts of physical evidence
prior to trial. See Commonwealth v. Hudson, []
414 A.2d 1381 ([Pa.] 1980); [] Judge, [] 648 A.2d
[at] 1222 [] (chain of custody was adequate for
blood alcohol result). A truly complete chain of
custody is not necessary for the admission of
tangible evidence. Every individual who came in
contact with the evidence does not have to testify,
and every minor discrepancy does not have to be
explained. Commonwealth v. Snyder, [] 385 A.2d
588 ([Pa. Super.] 1978); Commonwealth v. Miller,
[] 371 A.2d 1362 ([Pa. Super.] 1977) (slight
misdescription on property receipt does not bar
admission). Every hypothetical possibility of
tampering does not have to be eliminated. Snyder,
[] 385 A.2d [at] 588. It is not necessary to prove the
sanctity of an exhibit beyond a moral certainty.
Commonwealth v. Herman, 431 A.2d 1019
(Pa.Super. 1981). Physical evidence can be admitted
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with gaps in the chain of custody. Commonwealth
v. Bolden, [] 406 A.2d 333 ([Pa.] 1979).
1A Pa. Admissibility of Evidence T4 (3d ed.)
At the hearing on Tube City’s motion, Lambert testified that on
February 27, 2007, he took six core samples from the Tobyhanna site with
the assistance of two technicians from Certified Testing Laboratories (“CTL”).
N.T., 2/10/14, at 23-25. The CTL technicians took the samples back to their
laboratory. Id. at 25. CTL tested two of the cores, sent two cores to the
Army Corps of Engineers, and gave two samples back to Lambert. Id. at
27. Lambert sent one of those cores to Grace Construction Products
(“Grace”) for petrographic analysis and kept the remaining core, which was
labeled “S6” in his office. Id. at 27-28. Approximately three years after S6
was created, Lambert had S6 cut in half and he gave half to Grace and half
to Koller’s expert, Dr. Ozol. Id. at 31. Between the day in 2007 when CTL
gave him S6 and the day in 2010 when Lambert had S6 halved, the sample
sat untouched in Lambert’s office. Id. at 31. Lambert also testified that he
took nine core samples from the Simon project in March 2009, and indicated
that he sent them directly to CTL. Id. at 37-38. CTL subsequently tested
some of the samples and issued a report detailing the results thereof. Id. at
40-41. CTL returned some of the Simon project samples to Lambert, who
then sent them to Grace and to Dr. Ozol. Id. at 41.
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Tube City argues that Lambert’s testimony did not establish an
adequate chain of custody of the core samples. Tube City’s Brief at 28-30.
Yet, in making its argument, Tube City concedes that physical evidence may
be admitted despite gaps in testimony establishing a chain of custody and
that gaps in a chain of custody go to the weight of the evidence, as opposed
to its admissibility. Tube City’s Brief at 28-29 (citing Commonwealth v.
Royster, 372 A.2d 1194 (Pa. 1977); Broadus v. Unemployment Comp.
Bd. of Review, 721 A.2d 70 (Pa. Commw. 1998)). Tube City posits that
the error here was that the testimony offered to establish the chain of
custody was not credible. Id. at 30. This argument cannot provide relief.
Credibility determinations are the sole province of the jury, and this Court,
as an appellate court, cannot disturb a jury’s credibility determinations.
Vattimo v. Eaborn Truck Serv., Inc., 777 A.2d 1163, 1165 (Pa. Super.
2001).
Tube City next challenges the trial court’s handling of its request to
strike Lambert’s testimony on the basis that he violated a sequestration
order. Tube City’s Brief at 30. As background, we note that prior to the
testimony of Koller’s owner, Dale Koller (“Mr. Koller”), Tube City moved for
Lambert’s sequestration because they were both fact witness. N.T.,
2/10/14, at 116. Koller’s counsel opposed the motion, arguing that
Lambert, although not the corporate designee, was important to Koller’s trial
strategy and he needed to be present. Id. at 116-17. The trial court
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granted Tube City’s motion and ordered Lambert to leave the courtroom for
Mr. Koller’s testimony. Id. at 117. Following a break in Mr. Koller’s
testimony, counsel for Tube City stated that he had observed Mr. Koller
speaking with Lambert during the break and requested that the trial court
exclude Lambert from testifying or give the jury an instruction indicating
that he violated the sequestration order. Id. at 142-43. At that point,
counsel for Koller asked the trial court to reconsider its sequestration ruling.
Id. at 147-49. After argument from the parties and testimony from Lambert
about what he and Koller discussed, the trial court ruled that although there
was a technical violation of the sequestration order, there was no “specific
prejudice” to Tube City. Id. at 159. It lifted the sequestration order and
further ruled that Lambert could testify “unimpeded” and that it would not
give a curative instruction regarding a sequestration violation to the jury.
Id.
Tube City now argues that the trial court erred in reversing its
sequestration order and failing to give a curative instruction to the jury.
Tube City’s Brief at 34-36. “[T]he decision to sequester witnesses is left to
the discretion of the trial judge and will be reversed only for an abuse of
discretion.” Commonwealth v. Counterman, 719 A.2d 284, 299 (Pa.
1998). “A request for sequestration of a witness or witnesses should be
specific and should be supported by some reason or reasons demonstrating
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that the interests of [j]ustice require it.” Commonwealth v. Kravitz, 161
A.2d 861, 870 n.7 (Pa. 1960).
Pennsylvania Rule of Evidence 615 governs sequestration of witnesses
and provides as follows:
At a party’s request the court may order witnesses
sequestered so that they cannot learn of other
witnesses' testimony. Or the court may do so on its
own. But this rule does not authorize sequestering:
(a) a party who is a natural person;
(b) an officer or employee of a party that is not a
natural person (including the Commonwealth) after
being designated as the party’s representative by its
attorney;
(c) a person whose presence a party shows to
be essential to presenting the party’s claim or
defense; or
(d) a person authorized by statute or rule to be
present.
Pa.R.E. 615 (emphasis added). Counsel for Koller informed the trial court
that Lambert was his “number one connection to the client” and that
Lambert was “integral to [his] ability to present the case.” N.T., 2/10/14,
at 153. In light of this representation by Koller’s counsel, we find no abuse
of discretion in the trial court’s determination that sequestration was not
authorized by Rule 615.5 Accordingly, we find no error in the trial court’s
5
As the trial court did not err in its decision to deny Tube City’s
sequestration request, there is no merit to Tube City’s additional complaint
that the trial court should have given a curative instruction indicating that
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decision to lift the sequestration order and refuse Tube City’s request for a
jury instruction.
Tube City next argues that the trial court erred in “allowing [Koller’s]
expert to testify without the requisite level of professional certainty.” Tube
City’s Brief at 36. Tube City does not present any argument relating to
whether Koller’s expert, Dr. Ozol, testified with the requisite level of
professional certainty.6 Rather, Tube City argues that (1) the trial court
failed to determine whether Dr. Ozol was qualified to testify and an expert;
(2) there was an inadequate factual basis for Dr. Ozol’s opinion; and (3) Dr.
Ozol did not testify as to causation; i.e., that Tube City’s product caused
Koller’s problems. Id. at 36, 39. Tube City did not include these issues in
its Pa.R.A.P. 1925(b) statement of matters complained of on appeal, and so
they have been waived. Lazarski v. Archdiocese of Philadelphia, 926
A.2d 459, 463 (Pa. Super. 2007), (holding that issue not raised in a
statement filed pursuant to Pa.R.A.P. 1925(b) is waived for purposes of
appeal); Pa.R.A.P. 1925(b)(4)(vii). Accordingly we cannot address them.
Lambert violated a sequestration order. We note for completeness,
however, that the trial court ruled that Tube City could cross-examine
Lambert as to his discussions with Mr. Koller about his testimony. N.T.,
2/10/14, at 160.
6
Dr. Ozol testified with regard to the petrographic analyses of the samples
taken from the Tobyhanna and Simon projects; more specifically, that these
samples did not contain ground granulated blast-furnace slag.
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In the fourth sub-argument to this issue, Tube City contends that the
trial court erred by permitting Lambert to provide expert testimony as to the
cause of the concrete’s failure. Tube City’s Brief at 42. Tube City identifies
five instances of this allegedly improper expert testimony. Id. In its post-
trial motion, however, Tube City identified only one instance of such
allegedly improper testimony, which it has not included in its brief on appeal.
Brief in Support of Post-Trial Relief, 5/1/14, at 24. It is axiomatic that an
appellant may not raise a claim for the first time on appeal. Mazlo v.
Kaufman, 793 A.2d 968, 969 (Pa. Super. 2002); Pa.R.A.P. 302. “Our
Supreme Court has frequently stressed the necessity of raising claims at the
earliest opportunity … so that alleged errors can be corrected promptly, thus
eliminating the possibility that an appellate court will be required to expend
time and energy reviewing claims on which no trial ruling has been made.”
Mazlo, 793 A.2d at 969. Because Tube City did not raise these allegations
of error before the trial court, we will not consider them now.
We now consider Tube City’s third issue, which also involves an
evidentiary ruling. When Dr. Ozol, Koller’s expert, took the stand to testify,
he took his file to the stand with him. During cross-examination, counsel for
Tube City asked to review his file. N.T., 2/14/14, at 53. Koller asserted the
right to first inspect the file to determine whether it contained any privileged
communications. Id. at 57. The trial court permitted this, and Koller
identified four documents: three emails from Koller’s counsel to Dr. Ozol
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and one memo from Lambert to Koller’s counsel discussing Tube City’s
expert report.7 Id. at 58-59. Koller sought to have these documents
excluded. The trial court reviewed the documents and agreed. Id. at 60. It
explained its reasoning as follows:
In determining that the documents were privileged,
the [c]ourt reviewed them and found them to be
excludable, some as communications between
counsel and the expert witness, and some as
communications between counsel and Mr. Lambert in
preparation for trial. N.T. Vol. VI, 58:8-60:9. As to
the communications between Mr. Lambert and
counsel, because Lambert is a representative of the
corporate plaintiff, there can be no question that
attorney-client privilege applies. As to the
communications between Dr. Ozol and counsel, we
point to the recent decision of the Pennsylvania
Supreme Court in Barrick v. Holy Spirit Hosp. of
Sisters of Christian Charity, [91 A.3d 680 (Pa.
2014)]. In Barrick, the Supreme Court of
Pennsylvania announced a bright-line rule precluding
discovery of communications between attorneys and
expert witnesses. Although Barrick was decided
subsequent to the trial of this matter, it was decided
purely on long-standing discovery rules. As such, it
is clear that this [c]ourt properly interpreted those
rules in withholding communications between
[Koller’s] counsel and [its] expert witness from
disclosure to [Tube City].
Trial Court Opinion, 6/25/14, at 16-17.
Presently, Tube City does not argue that the trial court erred in finding
that the attorney-client privilege applied to these documents. It argues only
7
One email had a laboratory’s analysis of the core samples attached; one
forwarded correspondence between Lambert and Koller’s counsel; and one
attached both a different analytical report and correspondence between
Koller’s counsel and Lambert about the report.
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that the attorney-client privilege was waived when Dr. Ozol took the stand
with his file. Tube City’s Brief at 59. Although Tube City raised an issue
regarding the trial court’s application of the attorney-client privilege in its
post-trial motion, it did not raise this basis for relief (i.e., that the privilege
was waived because Dr. Ozol took the stand with these documents) therein.
As such, it cannot raise it as a basis for relief now on appeal. See
Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009)
(“[A] new and different theory of relief may not be successfully advanced for
the first time on appeal.”); Nogowski v. Alemo-Hammad, 691 A.2d 950,
955 (Pa. Super. 1997) (“Failure to preserve issues in a post-trial motion
results in a waiver of that issue on appeal.”).8
We have reached Tube City’s last issue, in which it argues that the trial
court should have granted its post-trial motion because Koller “failed to
prove the elements of its claims and a new trial is required in the interest of
justice.” Tube City’s Brief at 43. Tube City separates its argument on this
issue into three subsections, which we address seriatim.
Tube City begins by arguing that the trial court should have entered
JNOV on Koller’s fraud and negligent misrepresentation claims because
8
Even if this issue had been properly preserved in Tube City’s post-trial
motion, we note that at trial, Tube City agreed to allow Dr. Ozol to remove
any attorney-client privileged communications from his file before Tube City
would inspect it. N.T., 2/14/14, at 59. In light of this concession, Tube City
could not now prevail on its argument that the attorney-client privilege was
waived because Dr. Ozol took the stand with these documents in his file.
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Koller failed to prove the elements of fraud by clear and convincing
evidence.9 Id. at 43.
The proper standard of review for an appellate court
when examining the lower court's refusal to grant a
judgment n.o.v. is whether, when reading the record
in the light most favorable to the verdict winner and
granting that party every favorable inference
therefrom, there was sufficient competent evidence
to sustain the verdict. Questions of credibility and
conflicts in the evidence are for the trial court to
resolve and the reviewing court should not reweigh
the evidence. Absent an abuse of discretion, the trial
court's determination will not be disturbed.
Ferrer v. Trustees of Univ. of Pennsylvania, 825 A.2d 591, 595 (Pa.
2002) (internal citations omitted).
JNOV is an extreme remedy, as the trial court “cannot lightly ignore
the findings of a duly selected jury.” Burton-Lister v. Siegel, Sivitz &
Lebed Associates, 798 A.2d 231, 236 (Pa. Super. 2002). A motion for
JNOV challenges the sufficiency of the evidence presented at trial. Rohm &
Haas Co. v. Cont'l Cas. Co., 732 A.2d 1236, 1248 (Pa. Super. 1999). As
9
Under this subsection, Tube City also argues that the trial court should
have struck these claims because they were barred by the statute of
limitations. Tube City’s Brief at 43. This argument does not relate to
whether Koller adequately established the elements of fraud or negligent
misrepresentation, but is a completely separate issue. Tube City did not
include an issue raising the statute of limitations in its statement of
questions involved, see Tube City’s Brief at 4, and so it has been waived.
Cobbs v. SEPTA, 985 A.2d 249, 256 (Pa. Super. 2009) (holding that issue
not explicitly raised in appellant’s statement of the questions involved is
waived); Pa.R.A.P. 2116(a) (“No question will be considered unless it is
stated in the statement of questions involved or is fairly suggested
thereby.”).
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such, JNOV is only proper where, when viewing the evidence in the light
most favorable to the verdict winner, the facts are so clear that reasonable
minds could not disagree that the verdict was improper. Burton-Lister,
798 A.2d at 236. “JNOV … may not be employed to invade the province of
the jury. … Thus, where the jury has been presented with conflicting
evidence, a motion for JNOV should be denied.” Rohm & Haas Co., 732
A.2d at 1248 (internal citations omitted).
Initially, we observe that Tube City presents no argument in support of
its claim that the trial court should have entered JNOV on the negligent
misrepresentation count, and so we will not consider it.10 See Owens v.
Mazzei, 847 A.2d 700, 705-06 (Pa. Super. 2004) (holding that the Superior
Court will not address an issue presented in the statement of questions
involved where no corresponding analysis is included in the brief).
With regard to fraud, Tube City argues that JNOV was appropriate
because Koller failed to establish that Tube City sold it a product that did not
contain ground granulated blast-furnace slag. Tube City’s Brief at 45. Tube
City points to portions of Koller’s witnesses’ testimony that it believes
favored Tube City and alleges that Koller’s witnesses were not credible. Id.
10
It is fairly obvious, however, that a plaintiff is not required to prove fraud
in order to establish negligent misrepresentation. See Milliken v. Jacono,
60 A.3d 133, 141 (Pa. Super. 2012) (stating the elements of negligent
misrepresentation). Thus, even if Tube City had not waived this issue for
failure to develop an argument in support thereof, it would not have been
entitled to relief on this claim.
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This argument does not attack the sufficiency of Koller’s evidence, but rather
the weight the jury should have ascribed to Koller’s evidence. Tube City is
asking this Court to “invade the province of the jury,” and that is not a basis
for JNOV. Rohm & Haas Co., 732 A.2d at 1248.
Next, Tube City argues that the trial court should have struck Koller’s
breach of contract claim because Koller failed to present sufficient evidence
to establish a causal connection between Tube City’s product and the
damages alleged at trial. Tube City’s Brief at 48-49. Yet again, Tube City
basis this argument on allegations that Koller’s evidence was incredible and
that the jury should have believed other evidence that was more favorable
to Tube City. Id. at 49-50.11 These arguments challenge the jury’s
credibility determinations and findings of fact, not the sufficiency of the
evidence. This argument is therefore misplaced and affords Tube City no
relief.
Tube City further argues that the trial court erred in refusing its
request to limit damages to the amounts claimed for the Tobyhanna and
Simon projects, on the basis that Koller only produced core sample evidence
as to these two projects. Id. Tube City argues that a new trial on damages
is appropriate because of this error.
11
Specifically, Tube City again points to perceived flaws in the chain of
custody of a Tobyhanna core sample as well as testimony that errors in the
mixing of the cement (as opposed to the composition of Waycem) could
have led to the failure of the concrete. Tube City’s Brief at 49-51.
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The grant of a new trial is a matter within the
discretion of the trial court. If the verdict bears a
reasonable resemblance to the proven damages, it is
not the function of the court to substitute its
judgment for the jury’s. Nevertheless, where the
jury’s verdict is so contrary to the evidence as to
“shock one's sense of justice” a new trial should be
awarded.
Rettger v. UPMC Shadyside, 991 A.2d 915, 934 (Pa. Super. 2010)
(internal citations omitted).
The trial court explained its rejection of Tube City’s request as follows:
[Koller] alleged damages in the amount of
[$355,000]. [It was] awarded damages totaling
[$347,138.39]. Pretrial, [Tube City] made an oral
motion to limit [Koller’s] recovery to damages
incurred on the [] Simon and Tobyhanna projects,
where core samples were taken and evidence was
presented as to the absence of [ground granulated
blast-furnace slag]. N.T. Vol. I, 6:16-23. Upon
consideration, the [c]ourt denied the motion,
allowing all of the evidence on damages to go to the
jury for their consideration. N.T. Vol. I, 19:1-7.
[Koller] presented testimonial and
documentary evidence that it spent [$277,389.69]
on the allegedly defective Waycem, which it then
used in certain projects, incurring damages. In this
regard, Koller presented testimony and photographs
as to cracking on what they referred to as the
“Lusitania Liberty” project, pursuant to which they
incurred costs amounting to [$2,200] for repairs.
N.T., Vol. II, 57:18-66:23. Likewise, [Koller]
presented testimonial evidence of cracking on the
“Big Creek” project, where [it] incurred costs of
[$6,438]. N.T., Vol. II 66:25-71:9. As to the Grant
Homes project, Mr. Lambert presented photographic
evidence of cracking, and testified that no expense
was incurred to make repairs on that project. [N.T.]
Vol. II, 71:11-75:7. [Koller] also presented evidence
of [$35,000] expended to settle a lawsuit arising out
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of the problems at Tobyhanna, as well as the
expense of [$24,948.77] in legal fees associated
with that litigation. N.T. Vol II, 83:20-85:20, 87:7-
88:19. On the [] Simon project, evidence was
presented that [Koller] incurred costs in the amount
of [$9,600]. N.T. [Vol. II] 88:21-92:4.
This is not a case where damages were
awarded in the absence of evidence. Rather, [Koller]
offered direct evidence as to some of [its] alleged
injuries, and circumstantial evidence as to others.
While [Koller] did not take core samples of every
project, the evidence presented was clearly sufficient
for the jury to award damages upwards of
[$355,000] and [the] award fell below that amount.
Accordingly, the verdict does not shock the
conscious, and shall be permitted to stand.
Trial Court Opinion, 6/25/14, at 11-12.
We can find no abuse of discretion in the trial court’s ruling. Tube
City’s true complaint is that the award is based in part on the circumstantial
evidence and inferences drawn by the jury, but it provides us with no
authority that this is impermissible. Koller presented expert testimony that
the Waycem used in two projects did not contain the ground granulated
blast-furnace slag, and testimony that three additional projects that used
Waycem from the same defective batch also failed. The jury was free to
accept this evidence as credible and conclude that the Waycem used in all
five of these projects caused them to fail, and therefore, caused the
damages. As the amount of the verdict bears a reasonable relationship to
the evidence, there was no basis to disturb it. Rettger, 991 A.2d at 934.
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J-A09019-15
Lastly, Tube City argues that the trial court erred in denying its motion
for a mistrial. It argues that it was entitled to a mistrial because the trial
court made “multiple evidentiary errors” and because “the damages award is
… too speculative or uncertain.” Tube City’s Brief at 56-57. We have
considered and rejected Tube City’s claims of evidentiary errors and its claim
regarding the appropriateness of the verdict. Accordingly, Tube City’s
argument fails on its premise.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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