Kahrs, H. v. A.M. Brady Stucco & Stone ( 2016 )


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  • J-A28044-16
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    HEATH N. KAHRS AND MARCIE KAHRS,                     IN THE SUPERIOR COURT OF
    PENNSYLVANIA
    Appellants
    v.
    A.M. BRADY STUCCO & STONE, LLC
    A/K/A AIDAN BRADY STUCCO & STONE
    AND ENVIRONSPEC, LTD. AND MARK
    LEZANIC AND SANDRA LEZANIC,
    Appellees                       No. 984 EDA 2016
    Appeal from the Judgment Entered May 10, 2016
    in the Court of Common Pleas of Chester County
    Civil Division at No.: 10322-C 13
    BEFORE: PANELLA, J., SHOGAN, J., and PLATT, J.*
    MEMORANDUM BY PLATT, J.:                             FILED DECEMBER 12, 2016
    Appellants, Heath and Marcie Kahrs, husband and wife, appeal from a
    jury verdict in their favor in the amount of $166,010.00, which they consider
    inadequate, and a bench trial judgment denying their assertion of violations
    of the Unfair Trade Practices and Consumer Protection Law (UTPCPL).1 Their
    complaint chiefly claimed various failures by A.M. Brady Stucco & Stone, LLC
    a/k/a    Aidan    Brady     Stucco   &   Stone   (Brady),   and   Environspec,   Ltd.
    (Environspec) (Appellees), and Mark and Sandra Lezanic, to repair moisture
    ____________________________________________
    *
    Retired Senior Judge assigned to the Superior Court.
    1
    73 P.S. §§ 201-1 ─ 201-9.3.
    J-A28044-16
    penetration and leakage behind the stucco exterior of their home.2 Besides
    their common law claims, Appellants alleged breach of contract, negligence,
    and deceptive practices in violation of the UTPCPL. We affirm.
    We derive the pertinent facts of the case from the findings of the trial
    court and our independent review of the certified record.
    The ongoing course of conduct among the principals of this case is
    prolonged and convoluted. Briefly summarized, a pre-sale inspection report,
    (the Cogent report), identified water penetration behind the stucco of the
    house Appellants wanted to buy.                As part of the agreement of sale,
    Appellants entered into a pre-sale arrangement with the Lezanics, the
    sellers, for the remediation of the leakage.           (See Decision Pursuant to
    Pa.R.C.P. 1038, 2/02/16, at 2).
    The Lezanics (not the Kahrs) engaged Brady to make the necessary
    repairs, to be paid out of an escrow account from the proceeds of the sale of
    the house.      Brady expressly provided in the agreement that “you” (the
    Lezanics) would be responsible for the removal and reinstallation of any
    windows which needed to be removed to correct the water penetration.
    Shortly before the sale was scheduled to close (on January 15, 2010),
    the Kahrs sent Brady a letter regarding the completion of the remaining
    ____________________________________________
    2
    The trial court sustained preliminary objections in favor of Mr. and Mrs.
    Lezanic, sellers of the home Appellants purchased. They are not parties to
    this appeal.
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    stucco services.    (See Complaint, 1/27/14, Exhibit “D”, Letter to Aidan
    Brady, 1/13/10). The letter specified ─ twice ─ that it was intended to serve
    merely as a “clarification” of the original agreement.          (Id. at 1)
    (“Note─these services do not supersede the original scope of services.
    They [sic] merely serve as additional clarification and understanding.”)
    (emphasis added). The Kahrs signed the letter, as did Brady. (See id. at
    3).
    The Kahrs maintain that a major issue at the trial was whether the
    windows needed to be removed, and who had responsibility for the removal.
    (See Appellants’ Brief, at 35). One can reasonably infer from the totality of
    the evidence that removal and reinstallation of windows was a critical
    component of the remediation process. The Kahrs also maintain that it was
    Brady’s and Environspec’s responsibility to determine if the windows needed
    to be removed, and both failed to advise them (the Kahrs) of this
    requirement. (See id.).
    In any event, things proceeded without further serious incident from
    the completion of the original services in 2010, until Hurricane Sandy hit in
    2012, when water leaked into the basement, apparently from a kitchen
    window.   Appellants summoned Brady, who agreed to perform corrective
    remedial work (at no additional cost to the Kahrs) under the warranty for the
    original work.     For a fee of $600.00 Mr. Kahrs also engaged Appellee
    Environspec to perform five inspections of Brady’s work. Environspec found
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    minor problems, which Brady addressed, but its final report indicated that
    the stucco looked good and noted no major concerns.                    (See Decision
    Pursuant to Pa.R.C.P. 1038, at 5; see also Opinion Pursuant to Rule 1925,
    5/06/16, at 6).
    However, before the work was completed, Mr. Kahrs ordered Brady
    and his work crew off the premises and instructed him not to return. This
    lawsuit followed.
    The trial court bifurcated the proceedings into a bench trial on
    Appellants’ UTPCPL claims and a jury trial on the other claims.             The trial
    court denied Appellants’ UTPCPL claims. The jury found a breach of contract
    by Brady and awarded the Kahrs $166,010.00.                  This appeal followed the
    denial of the Kahrs’ post-trial motions. Counsel for Appellants filed a non-
    compliant    statement      of   errors   on   April   19,   2016.    See   Pa.R.A.P.
    1925(b)(4)(iv).3      The trial court filed an opinion pursuant to Pa.R.A.P.
    1925(a) on May 6, 2016.4
    ____________________________________________
    3
    In disregard of the pertinent rule, counsel for Appellants provides a lengthy
    explanation of each purported error asserted.          (See Appellants’ Brief,
    Appendix C, “Statement of the Matters [sic] Complained of on Appeal
    Pursuant to Order of Court Dated March 29, 2016 and Pa.R.A.P. 1925(b),” at
    1-11); see also Pa.R.A.P. 1925(b)(4)(iv) (“The Statement should not be
    redundant or provide lengthy explanations as to any error.”).
    4
    Among other procedural lapses, counsel for Appellants omits a copy of the
    trial court’s Rule 1925(a) opinion in their brief. See Pa.R.A.P. 2111(a)(10),
    (b). Both Appellees included a copy of the opinion in their briefs.
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    J-A28044-16
    Appellants raise sixteen claims on appeal, framed as ten questions
    and six over-lapping sub-questions:
    1. Whether the [t]rial [c]ourt’s decision on the Kahrs’
    UTPCPL claim was contrary to the weight of the evidence and the
    [t]rial [c]ourt erred as a matter of law and/or abused its
    discretion in reaching this decision?
    2. Whether the [t]rial [c]ourt erred and/or abused its
    discretion in failing to mold the verdict or grant additur with
    respect to the undisputed evidence of contract damages?
    3. Whether the [t]rial [c]ourt erred and/or abused its
    discretion in failing to grant judgment notwithstanding the
    verdict as to damages with respect to the undisputed evidence of
    contract damages?
    4. Whether the jury verdict as to liability and damages was
    contrary to the weight of the evidence and the [t]rial [c]ourt
    erred in failing to grant [Appellants’] motion for new trial?
    5. Whether the [t]rial [c]ourt erred and/or abused its
    discretion in failing to grant [Appellants] a new trial on the
    following errors of law:
    1.) the finding of deception was not submitted to the
    jury and evidence related to deception was not permitted at
    the jury trial;
    2.) [Appellants] were prohibited from presenting their
    negligence claim to the jury when Counts I and IV of the
    Complaint remained in the case prior to [Appellee] Brady’s
    Motion for Compulsory Nonsuit;
    3.) the [t]rial [c]ourt erred in permitting witnesses to
    testify about the Cogent [r]eport, which constitutes
    impermissible hearsay;
    4.) Daniel Honig should not have been admitted as an
    expert as he had no experience in the field of stucco
    remediation;
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    5.) the [t]rial [c]ourt erred in not providing a copy of
    [Appellants’] Exhibit 35 to the jury as requested; and
    6.) the [t]rial [c]ourt erred in finding in favor of
    [Appellees] on [Appellants’] UTPCPL claim?
    6. Whether the [t]rial [c]ourt erred and/or abused its
    discretion in not permitting evidence of deception to be
    introduced at the jury trial and permitting the jury to make a
    finding as to whether the [Appellees’] conduct was deceptive in
    accordance with the [UTPCPL]?
    7. Whether the [t]rial [c]ourt erred and/or abused its
    discretion in prohibiting [Appellants’] from presenting their
    negligence claim to the jury when Counts I and IV of the
    Complaint remained in the case prior to [Appellee] Brady’s
    Motion for Compulsory Nonsuit?
    8. Whether the [t]rial [c]ourt erred and/or abused its
    discretion in permitting witnesses to testify about the Cogent
    [r]eport, which constitutes impermissible hearsay?
    9. Whether the [t]rial [c]ourt erred and/or abused its
    discretion in permitting Daniel Honig to be admitted as an expert
    when he had no experience in the field of stucco remediation?
    10. Whether the [t]rial [c]ourt erred and/or abused its
    discretion when he [sic] refused to provide a copy of
    [Appellants’] Exhibit 35 to the jury after it was specifically
    requested by the jury?
    (Appellants’ Brief, at 4-5) (sub-questions re-formatted).
    Preliminarily, we are reminded of the observation by the
    [late] Honorable Ruggero J. Aldisert, Senior Circuit Judge of the
    United States Court of Appeals for the Third Circuit, that this
    Court has previously cited in Kenis v. Perini Corp., 
    452 Pa. Super. 634
    , 
    682 A.2d 845
     (1996), as well as other cases:
    When I read an appellant’s brief that contains ten or
    twelve points, a presumption arises that there is no merit
    to any of them. I do not say that it is an irrebuttable
    presumption, but it is a presumption that reduces the
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    effectiveness of appellate advocacy. Appellate advocacy is
    measured by effectiveness, not loquaciousness.
    
    Id.
     at 847 n.3 (citations omitted); see also Commonwealth v.
    Snyder, 
    870 A.2d 336
    , 340 (Pa. Super. 2005) (“[T]he
    effectiveness of appellate advocacy may suffer when counsel
    raises numerous issues, to the point where a presumption arises
    that there is no merit to any of them.”) (citations omitted).
    J.J. DeLuca Co. Inc. v. Toll Naval Associates, 
    56 A.3d 402
    , 409–10 (Pa.
    Super. 2012).
    In this appeal, many of Appellants’ issues and arguments in the sixty-
    three page brief overlap or simply duplicate each other by raising the same
    issue, sometimes in a virtually identical form, sometimes in a slightly
    alternative way. Also, the argument section of the brief reformats and re-
    orders the questions, in virtually random sequence, inconsistently numbered
    and lettered, without apparent distinction between questions and sub-
    questions. (See Appellants’ Brief, at 11-62). In so doing, Appellants fail to
    comply with Pennsylvania Rule of Appellate Procedure 2119:
    (a) General rule. The argument shall be divided into as
    many parts as there are questions to be argued; and shall
    have at the head of each part-in distinctive type or in type
    distinctively displayed-the particular point treated therein,
    followed by such discussion and citation of authorities as are
    deemed pertinent.
    Pa.R.A.P. 2119(a) (some emphasis added).
    We could find all of Appellants’ claims waived on this basis. But we
    decline to do so, on grounds of judicial economy. Notably, in addition to the
    briefs, oral argument has already occurred. Therefore, for clarity of analysis
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    and   to   avoid   unnecessary    duplication   and   further   confusion,   when
    appropriate we will address similar claims together.
    We first address Appellants’ challenges to the weight of the evidence
    for the trial court’s verdict on the UTPCPL claims, and the jury verdict. We
    begin with our standard and scope of review in an appeal from 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.
    We will respect a trial court’s findings with regard to the
    credibility and weight of the evidence unless the appellant can
    show that the court’s determination was manifestly erroneous,
    arbitrary and capricious or flagrantly contrary to the evidence.
    DeLuca, supra at 410 (citations and quotation marks omitted). Similarly,
    Where, as here, the appellant asserts the weight of the
    evidence as grounds for the award of a new trial, our review is
    exceptionally limited:
    Appellate review of a weight claim is a review of the
    exercise of discretion, not of the underlying question of
    whether the verdict is against the weight of the evidence.
    Because the trial judge has had the opportunity to hear
    and see the evidence presented, an appellate court will
    give the gravest consideration to the findings and reasons
    advanced by the trial judge when reviewing a trial court’s
    determination that the verdict is against the weight of the
    evidence. One of the least assailable reasons for
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    J-A28044-16
    granting or denying a new trial is the lower court’s
    conviction that the verdict was or was not against
    the weight of the evidence and that a new trial
    should be granted in the interest of justice.
    It is not the role of an appellate court to pass on the credibility
    of witnesses; hence we will not substitute our judgment for that
    of the factfinder. Thus, the test we apply is not whether we
    would have reached the same result on the evidence presented,
    but rather, after due consideration of the evidence which the
    trial court found credible, whether the trial court could have
    reasonably reached its conclusion.
    Fazio v. Guardian Life Ins. Co. of Am., 
    62 A.3d 396
    , 413 (Pa. Super.
    2012), appeal denied, 
    72 A.3d 604
     (Pa. 2013) (citations and internal
    quotation marks omitted; emphasis added).
    Here, aside from the mere bald assertion that the verdicts shock the
    conscience, Appellants, in a rambling, disconnected, and frequently opaque
    presentation, simply fail to develop any persuasive argument that the
    finders of fact could not have reached their respective conclusions on the
    weight of the evidence presented. (See Appellants’ Brief, at 23, 30-31, 42,
    45-46). At most, Appellants invites us to an impermissible re-weighing of
    the evidence. We decline to do so.
    Notably, while Appellants insist repeatedly that their evidence was
    “undisputed,” Appellees maintain, and the trial court confirms, that
    Appellants’ “damages were hotly contested.” (Order 3/1/16, n.1 at 2; Rule
    1925(a) opinion, 5/06/16, at 18). We will not substitute our judgment for
    that of the factfinders. We consider the evidence in the bench trial in a light
    most favorable to the Appellees as verdict winners.      The trial court could
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    J-A28044-16
    have reasonably reached its conclusion that the jury’s verdict was supported
    by the evidence. All of Appellants’ weight claims fail.
    Next, Appellants claim a right to a jury trial on their UTPCPL claims.
    (See Appellants’ Brief, at 11-14). This Court has concluded that there is no
    right to a jury trial for private causes of action under the UTPCPL.      See
    Fazio, 
    supra:
    Accordingly, we conclude that there is no right to a jury
    trial for private causes of action under the UTPCPL. The statute
    does not specifically enumerate that right. Moreover, based
    upon the foregoing analysis, we find that the UTPCPL did not
    merely codify common law claims of fraud. The UTPCPL created
    a distinct cause of action for consumer protection. While a
    plaintiff is required to prove elements of common law fraud to
    support certain UTPCPL claims, he/or she would still have to
    prove the elements of a consumer-based transaction or
    relationship. Moreover, fraud and UTPCPL claims have different
    statutes of limitations, which provides further support that such
    claims are separate causes of action. In sum, the Fazios were
    not entitled to a jury trial on their stand-alone UTPCPL claim;
    hence, their first issue on appeal fails.
    
    Id.
     at 411–12.
    Appellants’ citation to caselaw preceding Fazio or to cases from other
    jurisdictions ignores the doctrine of stare decisis.      See Dixon v. GEICO,
    
    1 A.3d 921
    , 925-26 (Pa. Super. 2010). Appellants’ assertion of a right to a
    jury trial for their UTPCPL claims fails.
    Next, we address Appellants’ challenge to the jury’s award of
    damages.     They maintain they are entitled to $302,286.00, instead of
    $166,010.00. (See Appellants’ Brief, at 42). We disagree.
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    J-A28044-16
    Where an appellant’s claim arises from a challenge to the
    jury’s determination of damages, our review is highly
    circumspect:
    The duty of assessing damages is within the province
    of the jury and should not be interfered with by the court,
    unless it clearly appears that the amount awarded resulted
    from caprice, prejudice, partiality, corruption or some
    other improper influence.       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.
    If the verdict bears a reasonable resemblance to the damages
    proven, we will not upset it merely because we might have
    awarded different damages.
    Helpin v. Trustees of Univ. of Pennsylvania, 
    969 A.2d 601
    , 616 n.9 (Pa.
    Super. 2009), affirmed, 
    10 A.3d 267
     (Pa. 2010) (citations and internal
    quotation marks omitted).
    Here, as previously noted, Appellants’ claim that their evidence of
    damages was undisputed is flatly contradicted by the trial court. We defer
    to the trial court on findings of fact.   The trial court notes that the jury’s
    award of damages is nearly four times the original contract amount. (See
    Rule 1925(a) opinion, at 6). There is no evidence that the jury acted out of
    caprice, prejudice, partiality, corruption or some other improper influence.
    We decline to disturb the jury’s award.       Appellants’ claims to additional
    damages fail.
    Next, Appellants challenge the trial court’s denial of their request to
    provide the jurors during deliberations with an exhibit (Exhibit 35) prepared
    by their counsel, which purported to itemize their various claims to
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    J-A28044-16
    damages. (See Appellants’ Brief, at 48-52). Appellants maintain that the
    trial court’s refusal constituted an error “as a matter of law.” (Id. at 51).
    We disagree.
    Pennsylvania Rule of Civil Procedure 223.1, Conduct of the Trial,
    provides, in pertinent part, that “[t]he court may . . . make exhibits
    available to the jury during its deliberations[.]”     Pa.R.C.P. 223.1(d)(3)
    (emphasis added).     However, this Court has long held that “whether an
    exhibit should be allowed to go out with the jury during deliberation is within
    the discretion of the trial judge, and such decision will not be overturned
    absent an abuse of discretion.” Commonwealth v. Manley, 
    985 A.2d 256
    ,
    273 (Pa. Super. 2009), appeal denied, 
    996 A.2d 491
     (Pa. 2010) (citations
    omitted).
    In this case, the trial court notes that there were two versions of the
    exhibit at issue, raising potential questions as to which version was more
    accurate (or which should be provided to the jury).      It is undisputed that
    both versions contained one or more items now conceded to be beyond the
    scope of permissible damages to be determined by the jury (e.g., premiums
    for Appellants’ homeowner’s insurance).
    Appellants cite some courts of other jurisdictions (whose decisions are
    not binding on this Court), to the effect that they may have permitted
    demonstrative exhibits during jury deliberations. This is of no moment for
    our review.    Appellants had the burden to prove that this trial court’s
    - 12 -
    J-A28044-16
    decision not to provide the compromised exhibits was an abuse of
    discretion, or, as Appellants claim, an error “as a matter of law.”
    (Appellants’ Brief, at 51, 52).          They utterly fail to do so.          Appellants’
    challenge to the exclusion of Exhibit 35 from jury deliberations fails.
    Appellants also object to various other evidentiary rulings by the trial
    court, most notably testimony with reference to the Cogent report,5 and the
    trial court’s acceptance of Daniel Honig as an expert witness for Brady.
    The admission or exclusion of evidence is within the sound
    discretion of the trial court, and in reviewing a challenge to the
    admissibility of evidence, we will only reverse a ruling by the
    trial court upon a showing that it abused its discretion or
    committed an error of law. 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.
    Commonwealth v. Lopez, 
    57 A.3d 74
    , 81 (Pa. Super. 2012), appeal
    denied, 
    62 A.3d 379
     (Pa. 2013) (citation and ellipsis omitted).
    Appellants    quote     extensively,    albeit   selectively,   from    the   trial
    transcript in support of their objections.         (See Appellants’ Brief, at 15-23;
    55-58).     However, Appellants fail to develop an argument supported by
    specific pertinent authority to meet their burden of proof that the trial court
    abused its discretion or committed an error of law in any of its evidentiary
    rulings.
    ____________________________________________
    5
    Appellants concede that the Cogent report was not entered into evidence.
    Nevertheless, they maintain that references at trial “constitutes irreversible
    [sic] error.” (Appellants’ Brief, at 23).
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    J-A28044-16
    On independent review we conclude that none of Appellants’ other
    claims, whether appropriately or inappropriately developed, merit additur,
    molding of the verdict, a new trial, or any other relief.      In particular,
    Appellants were not entitled to present evidence of their purported pain and
    suffering at trial.   As a practical matter, the gist of the action doctrine
    precludes plaintiffs from re-casting ordinary breach of contract claims into
    tort claims. See eToll, Inc. v. Elias/Savion Advert., Inc., 
    811 A.2d 10
    ,
    14–17 (Pa. Super. 2002). The trial court properly prevented Appellants from
    doing so.
    Judgment affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 12/12/2016
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