Wyse, J. v. Leone, S. ( 2015 )

J-S53022-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JAMES WYSE T/D/B/A WYSE BUILDERS IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
STEPHEN J. LEONE,
Appellant
----------------------------------------------
STEPHEN J. LEONE,
Appellant
v.
JAMES WYSE T/D/B/A WYSE BUILDERS
No. 201 WDA 2014
Appeal from the Judgment Entered January 10, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-10-013810 AND GD-12-006141
BEFORE: DONOHUE, OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED APRIL 1, 2015
Appellant, Stephen J. Leone, appeals from the judgment entered on
January 10, 2014 in favor of Appellee, James Wyse, t/d/b/a/ Wyse Builders
(hereinafter “Wyse”) in the amount of $12,488.00, plus interest at 6.00 %
annually since June 28, 2010. Upon careful consideration, we affirm.
The trial court summarized the facts and procedural history of this
case as follows:
This matter arises from consolidated actions indexed at
GD 10-13810, which is a mechanic’s lien claim filed on
behalf of [Wyse], and against [Appellant,] arising out of
residential remodeling and repair work, and at GD 12-6161,
which is a breach of contract claim and Pennsylvania Unfair
*Retired Senior Judge assigned to the Superior Court.
J-S53022-14
Trade Practices and Consumer Protection Law (“UTPCPL”)
claim filed on behalf of [Appellant] and against [Wyse].
Pursuant to a request by [Appellant], Wyse, a
construction contractor, prepared an agreement for
improvements to be made to residential property that
[Appellant] intended to purchase. That agreement was to
be proffered as part of the mortgage loan application
process through which [Appellant] was to receive monetary
assistance for rehabilitation from a Federal Housing
Administration 203(k) loan. Any work performed by benefit
of the financing was to be reviewed pursuant to federal
Department of Housing and Urban Development (“HUD”)
regulations. The contract, initially executed by the parties
on November 24, 2009, was subsequently restated on HUD
forms dated December 1, 2009, which were signed by the
parties on that same date. Neither of those writings
contained a registration number of Wyse obtained pursuant
to Pennsylvania’s Home Improvement Consumer Protection
Act (“HICPA”), legislation which became effective July 1,
2009.
Final loan approval and closing on the purchase of the
property occurred in late December 2009 and Wyse began
actual performance on the contract on or about January 11,
2010. Work by Wyse continued through early April 2010,
during the course of which several change orders and
additional work orders were signed by Wyse and
[Appellant]. On April 10, 2010, [Appellant] instructed Wyse
in writing and by means of a telephone message to cease
work and to make arrangements to retrieve his tools and
equipment. [Appellant] refused to approve requests
submitted by Wyse for payment of work completed and the
cost of materials purchased and left at the site. A claim for
a mechanic’s lien was thereafter filed and served in July
2010 at GD 10-13810. [Appellant] subsequently praeciped
for a rule to file a complaint; Wyse’s complaint timely
followed.
[Appellant] filed preliminary objections to the complaint
at GD 10-13810, asserting that an alternate dispute
resolution clause of the HICPA both precludes enforcement
of mechanic’s liens based upon a contract unless that
contract bears the registration number of the contractor and
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precludes contractor actions in which there is no written
contract between a contractor and the consumer. [The trial
court] overruled those preliminary objections by an order
dated November 17, 2010. [Appellant] filed an answer and
new matter and thereafter sought judgment on the
pleadings, asserting again that Wyse had fail[ed] to comply
with HICPA thereby rendering any purported contract with
[Appellant] invalid and “eviscerating” the mechanic’s lien
action. [Appellant’s] motion further asserted that Wyse had
failed to file a response to the new matter, thereby causing
the factual averments set forth in such new matter to be
deemed admitted. By order dated June 10, 2011, [the trial
court] denied the motion for judgment on the pleadings in
its entirety.
On or about April 3, 2012, [Appellant] filed a two-count
complaint against Wyse at GD 12-6141 regarding work
performed under the December 22, 2010 contract between
the parties. That complaint alleged both a breach of
contract and a violation of UTPCPL. Wyse filed an answer.
There were no further filings or proceedings occurring solely
under that docket number. By order date[d] October 26,
2012, [the trial court] granted a motion to consolidate the
cases at GD-10-013810 and GD-12-006141 pursuant to
Pa.R.C.P. 213(a). The cases were consolidated at GD-10-
013810.
The consolidated matter proceeded to a bench trial [].
On the scheduled day of trial, [Appellant] presented a
motion in limine which, [Appellant] contend[ed], sought the
result of “estopping Wyse from denying factual averments
in [Appellant’s] [n]ew [m]atter, specifically including the
allegation that it would cost [Appellant] $17,000.00 to
remedy the unworkmanlike construction visited upon his
home by Wyse [].” That motion was denied following
argument.
The matter proceeded to a bench trial, upon completion
of which [the trial] court entered the following non-jury
verdict, dated November 4, 2013:
[The trial court] finds in favor of [Wyse] and
against [Appellant] in the amount of $12,488[.00],
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together with interest at the rate of six percent (6%)
per annum from June 28, 2010, at GD 10-13810.
[The trial court] finds in favor of [Wyse] and
against [Appellant] at GD 12-6141.
A timely motion for post-trial relief in the form of a
judgment notwithstanding the verdict or, in the alternative,
a new trial, followed from [Appellant]. Although in part,
[Appellant’s] motion for judgment n.o.v. reiterated his pre-
trial motions, the post-trial motion additionally asserted,
that the verdict was contrary to the weight of the evidence.
In that latter aspect, [Appellant] submitted that the [trial]
court had erred in crediting the testimony of [Wyse] over
that of two witnesses proffered by [Appellant]: (1) Kenneth
Leah, a HUD inspector who was commissioned to review the
work, and (2) Gordon Ketchel, a home inspector whom the
[trial] court declined to accept as an expert.
[Appellant’s] motion for a new trial reiterated the [trial]
court’s refusal to accept Mr. Ketchel as an expert.
[Appellant] additionally contended that such refusal
demonstrated a manifest prejudice on the part of the [trial]
court. [Appellant] contended, moreover, that the [trial]
court appeared overly sympathetic and indulgent toward
Wyse and, conversely, was abrupt, dismissive and bellicose
toward [Appellant].
Following argument, [Appellant’s] motion for post-trial
relief was denied [by order dated January 2, 2014].
[Judgment was entered on January 10, 2014.]
Trial Court Opinion, 4/28/2014, at 2-5 (footnotes omitted). This timely
appeal followed.1
____________________________________________
1
Appellant filed a notice of appeal on January 29, 2014. The trial court
ordered Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on February 4, 2014. Appellant
complied timely. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on April 28, 2014.
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On appeal, Appellant presents six issues for our review:
I. Is [] Appellant entitled to judgment as a matter of law
(judgment n.o.v.) based upon the operation of
Pennsylvania’s Home Improvement Consumer
Protection Act, 73 P.S. §517.1 et seq., when [Wyse]
held itself out as a contractor when it was not
registered with the Bureau, when the proposed
contracts for home improvement work did not contain
a registration number, and when [Wyse] failed to
plead any claim for relief under a quantum meruit
theory[?]
II. Is [] Appellant entitled to judgment as a matter of law
(judgment n.o.v.) when the evidence presented by []
Appellant was so overwhelming that no two
reasonable minds could disagree that [Wyse’s] work
product was of an unworkmanlike character?
III. Is [] Appellant entitled to judgment as a matter of law
(judgment n.o.v.) when, if the home improvement
contracts are deemed by the court to be valid and
enforceable, the [h]omeowner [a]greement contains
an [a]rbitration provision to which both parties
assented via written execution and, thus, the case
should have never proceeded to trial through the
general docket at the Civil Division of Allegheny
County[?]
IV. Is [] Appellant entitled to a new trial when the trial
court refused to accept [] Appellant’s [w]itness,
Gordon Ketchel, as either an expert or witness-with-
knowledge, and when the trial court refused to admit
into evidence or otherwise consider Mr. Ketchel’s cost
to cure estimate, when Gordon Ketchel has been
engaged in construction for over 21 years and home
inspection for nearly 30 years and when he is
currently bidding on and conducting construction work
in Erie, Pennsylvania?
V. Is [] Appellant entitled to a new trial based upon the
appearance of trial court bias or prejudgment when
the trial court’s overall commentary and management
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of the trial indicated a leniency towards [Wyse] and
[Wyse’s] counsel relating to examinations and rulings
on objections and also when the trial court frequently
addressed Appellant and his counsel with an unusually
combative, bitter, or angry tone?
VI. Is [] Appellant entitled to a new trial or judgment
n.o.v. when the trial court’s calculation of damages is
predicated on the notion that the home improvement
work was “completed” when, if [Wyse’s] testimony is
to be taken as true, remedial work still needs to be
done in order to address defects that both parties
observed and acknowledged at trial[?]
Appellant’s Brief at 4-5.
In his first issue presented, Appellant argues that his contract with
Wyse was void and unenforceable under the Pennsylvania Home
Improvement Consumer Protection Act (HICPA), 73 P.S. §§ 517.1-517.19.
Id. at 17. More specifically, Appellant avers:
Here, it is undisputed that [Wyse] failed to register with the
Bureau of Consumer Protection prior to holding itself out as
a home improvement contractor and preparing, advancing,
negotiating and executing with [] Appellant a [r]emodel
[c]ontract or [h]omeowner [a]greement. It is further
undisputed that, due to the lack of registration, neither
contractual document bears the registration number of
[Wyse]. Therefore, under a fair and plain reading of the
statutory language at Sections 517.3, 517.6 and 517.7(a),
[Wyse] is in direct violation of multiple provisions of
[HICPA] and, as mandated by Section 517.7(a)(1), the
purported contracts upon which [Wyse] based and pursued
its claim are invalid and unenforceable.
Id. at 23-24. Moreover, Appellant maintains that Wyse’s “claim sounds in
breach of an express contract and nowhere in its complaint can one find a
count for unjust enrichment, quantum merit or implied contract-in-fact.” Id.
at 27. Appellant claims the trial court erred by sua sponte injecting a theory
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of quantum merit into the proceedings. Id. Thus, Appellant contends he is
entitled to judgment non obstante verdicto (JNOV).2 Id. at 27.
When reviewing an appeal from the denial of a request for JNOV,
the appellate court must view the evidence in the light most
favorable to the verdict-winner and give him or her the
benefit of every reasonable inference arising therefrom
while rejecting all unfavorable testimony and inferences.
Thus, the grant of a [JNOV] should only be entered in a
clear case and any doubts must be resolved in favor of the
____________________________________________
2
There were three different trial court judges that issued rulings in this
matter. The presiding judge, the Honorable Michael E. McCarthy, relied
upon earlier rulings by “Judge [Robert J.] Coleville and Judge [Paul F.]
Lutty[, Jr.] who, respectively, disposed of [Appellant’s] preliminary
objections and motion for judgment on the pleadings.” Trial Court Opinion,
4/28/2014, at 7. Judges Coleville and Lutty, however, did not author
opinions regarding those decisions. Appellant concedes that, in arguing his
request for JNOV, he “articulated the very same arguments relating to
[HICPA] that he articulated before Judge Robert J. Coleville and Judge Paul
F. Lutty, Jr.” Appellant’s Brief at 26. In denying Appellant relief on this
issue, Judge McCarthy stated that Judges Coleville and Lutty had already
rejected Appellant’s construction of HICPA in denying him relief and their
dispositions “remained consistent with prevailing law and formed the law of
the case.” Trial Court Opinion, 4/28/2014, at 8. On appeal, “Appellant very
respectfully submits that all three judges erred in ruing against [] Appellant
in connection with his arguments relating to the effect of [HICPA] and,
therefore, is entitled to [JNOV].” Appellant’s Brief at 27. As discussed infra,
because the law pertaining to HICPA is clear, we are able to address this
issue. However, we respectfully remind the trial court that “[i]f the case
appealed involves a ruling issued by a judge who was not the judge entering
the order giving rise to the notice of appeal, the judge entering the order
giving rise to the notice of appeal may request that the judge who made the
earlier ruling provide an opinion […] to explain the reasons for that ruling.”
Pa.R.A.P. 1925(a). While it is true that “one may not revisit a resolved
aspect of an ongoing controversy absent new law or materially altered
facts,” as cited by the trial court, merely relying upon the law of the case
doctrine does not address the legal justification for the prior rulings. Trial
Court Opinion, 4/28/2014, at 8.
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verdict-winner. Furthermore, it is only when either the
movant is entitled to judgment as a matter of law or the
evidence was such that no two reasonable minds could
disagree that the outcome should have been rendered in
favor of the movant that an appellate court may vacate a
jury's finding.
Thomas Jefferson Univ. v. Wapner, 903 A.2d 565, 569 (2006) (ellipsis
and original brackets omitted).
Pursuant to HICPA, any home improvement contract, in order to be
valid and enforceable against the owner of real property, must be legible, in
writing, and contain thirteen other specific requirements. See 73 P.S.
§ 517.7(a). Section 517.7(a) specifically provides as follows:
(a) Requirements.—No home improvement contract shall
be valid or enforceable against an owner unless it:
(1) Is in writing and legible and contains the home
improvement contractor registration number of
the performing contractor.
(2) Is signed by all of the following:
(i) The owner, his agent or other contracted
party.
(ii) The contractor or a salesperson on behalf of
a contractor.
(3) Contains the entire agreement between the
owner and the contractor, including attached
copies of all required notices.
(4) Contains the date of the transaction.
(5) Contains the name, address and telephone
number of the contractor. For the purposes of
this paragraph, a post office box number alone
shall not be considered an address.
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(6) Contains the approximate starting date and
completion date.
(7) Includes a description of the work to be
performed, the materials to be used and a set of
specifications that cannot be changed without a
written change order signed by the owner and
the contractor.
(8) Includes the total sales price due under the
contract.
(9) Includes the amount of any down payment plus
any amount advanced for the purchase of
special order materials. The amount of the down
payment and the cost of the special order
materials must be listed separately.
(10) Includes the names, addresses and telephone
numbers of all subcontractors on the project
known at the date of signing the contract. For
the purposes of this paragraph, a post office box
number alone shall not be considered an
address.
(11) Except as provided in section [517.]12, agrees
to maintain liability insurance covering personal
injury in an amount not less than $50,000 and
insurance covering property damage caused by
the work of a home improvement contractor in
an amount not less than $50,000[.00] and
identifies the current amount of insurance
coverage maintained at the time of signing the
contract.
(12) Includes the toll-free telephone number under
section [517.]3(b).
(13) Includes a notice of the right of rescission under
subsection (b).
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73 P.S. § 517.7(a). Moreover, Subsection (g), entitled “Contractor's
recovery right,” provides,
Nothing in this section shall preclude a contractor who has
complied with subsection (a) from the recovery of payment
for work performed based on the reasonable value of
services which were requested by the owner if a court
determines that it would be inequitable to deny such
recovery.
73 P.S. § 517.7(g).
Our Supreme Court recently examined HICPA in Shafer Elec. &
Const. v. Mantia, 96 A.3d 989 (Pa. 2014). In so doing, the Shafer Court
first recognized and analyzed this Court’s decision in Durst v. Milroy, 52
A.3d 357 (Pa. Super. 2012):
In Durst, a contractor brought a quantum meruit claim
against two homeowners who had failed to pay him
pursuant to an oral contract for home improvements. The
Durst Court considered whether Section 517.7(g) of
[HICPA] precluded lawsuits sounding in quantum meruit,
because the failure to document the agreement in writing
violated Section 517.7(a)(1).
The Durst Court began its analysis by noting that quantum
meruit is essentially a claim for unjust enrichment, which
“implies a contract [and] requires the defendant to pay to
the plaintiff the value of the benefit conferred.” Id. at 360.
The court continued that, in a quantum meruit action, the
plaintiff must prove:
(1) [the] benefits conferred on defendant by
plaintiff; (2) appreciation of such benefits by
defendant; and (3) acceptance and retention of such
benefits under such circumstances that it would be
inequitable for defendant to retain the benefit
without payment of value. The application of the
doctrine depends on the particular factual
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circumstances of the case at issue. In determining if
the doctrine applies, our focus is not on the intention
of the parties, but rather on whether the defendant
has been unjustly enriched.
Id.
Recognizing that a quantum meruit action does not sound
purely in contract, the Durst Court concluded that [HICPA]
only bars actions for breaches of express home
improvement contracts when the requirements of Section
517.7(a) are not met. The court continued opining that
[HICPA] is silent, however, as to quasi-contract actions such
as quantum meruit, “which, by definition, implicate the fact
that, for whatever reason, no written contract existed
between the parties.” Id. at 361. It observed that the plain
language of Section 517.7(g) “refers only to those
contractors who have complied with subsection (a), which
requires a written contract.” Id. at 361, n.3. “[HICPA] does
not speak to what happens when there is no written
contract,” id., and to agree with the homeowners that
Section 517.7(g) barred common law equity actions such as
quantum meruit “would allow them to prevail even if the
work was perfect and they simply did not want to pay.” Id.
at 361.
Shafer Elec. & Const. v. Mantia, 96 A.3d 989, 993-994 (Pa. 2014).
The Shafer Court ultimately agreed with the reasoning in Durst and
concluded:
[T]he plain, unambiguous language of Section
517.7(g) does not prohibit the cause of action in quantum
meruit.
[HICPA], specifically Section 517.7(a), speaks to
enforceable and valid home improvement contracts, and
provides that for a contract to be enforceable and valid, it
must comply with the thirteen clauses of subsection (a).
* * *
It is well-settled at common law, however, that a
party shall not be barred from bringing an action based in
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quantum meruit when one sounding in breach of express
contract is not available. While the General Assembly, in its
role as the policy-making branch of government, certainly
may in particular sets of circumstances modify the structure
of the common law, there is no indication that the
legislature has done so in [HICPA]. Indeed, [HICPA] is
silent as to actions in quasi-contract, such as unjust
enrichment and quantum meruit—which, by definition,
implicate the fact that, for whatever reason, no valid
contract existed between the parties.
With this understanding, it becomes self-evident and
plain that Section 517.7(g) speaks only to the availability of
remedies to a contractor who complies with Section
517.7(a). While traditional contract remedies may not be
available due to the contractor's failure to adhere to Section
517.7(a) (thus, rendering the home improvement contract
void and unenforceable), Section 517.7(g) does not
contemplate the preclusion of common law equitable
remedies such as quantum meruit when a party fails to
comply with subsection (a). The Superior Court has already
decided, and we now affirm, that this is the case when the
contract at issue is oral (Durst), or noncompliant with the
remaining sections of Section 517.7(a) (this case). If the
General Assembly had seen it fit to modify the right of non-
compliant contractors to recover in contract or quasi-
contract, statutory or common law, or otherwise, it could
have done so. Simply put, this Court cannot insert words
into Section 517.7(g) that are not there, especially words
that would extinguish an otherwise cognizable common law
action.
Shafer, 96 A.3d at 996-997 (citations, quotations, and footnotes omitted).
Thus, as Shaffer makes clear, HICPA requires compliance with the
thirteen factors set forth at Section 517.7(a) in order to validly create a
construction contract under the statute. Here, there is little dispute that
Wyse failed to comply with those provisions. However, when a cause of
action is not available under an express contract, HICPA does not bar a
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cause of action for quantum meruit. Thus, as a matter of law, the trial court
did not err in denying Appellant’s motion for JNOV.
Moreover, we reject Appellant’s argument that the trial court erred by
allowing Wyse to pursue a theory of quantum meruit. Pennsylvania Rule of
Civil Procedure 1033, provides as follows:
A party, either by filed consent of the adverse party or by
leave of court, may at any time change the form of action,
correct the name of a party or amend his pleading. The
amended pleading may aver transactions or occurrences
which have happened before or after the filing of the
original pleading, even though they give rise to a new cause
of action or defense. An amendment may be made to
conform the pleading to the evidence offered or admitted.
Pa.R.C.P. 1033.
This Court has previously concluded:
The allowance of an amendment is within the discretion of
the trial court. The right to amend, however, should be
liberally granted unless prejudice to the adverse party or an
error of law would result. Amendments should be allowed
even if proposed during trial. Whenever possible, courts
should obtain determinations of cases on their merits.
Sands v. Forrest, 434 A.2d 122, 124-125 (Pa. Super. 1981) (internal
citations omitted). “Courts have the power in any stage of the proceedings
to permit a change in the form of action if the same is necessary for a
proper decision of the cause upon its merits.” Mancine v. Concord-
Liberty Sav. & Loan Ass'n, 445 A.2d 744, 749 (Pa. Super. 1982) (citation
omitted).
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In the instant case, the dispute between the parties centered solely
upon construction work performed by Wyse at Appellant’s residence. In
filing its claim for a mechanic’s lien, Wyse relied upon the written contract
between the parties to assert a breach of contract claim. However, Wyse
also alleged that the claim was “based upon the furnishing of labor and/or
materials … from December 22, 2009, to April 7, 2010, the date the work
was completed.” Wyse’s Claim for Mechanics’ Lien, 7/23/2010, at ¶ 5. In
his preliminary objections, Appellant contended that “subject contract [was]
completely void and unenforceable.” Appellant’s Preliminary Objections,
10/15/2010, at ¶ 8, 10. In its reply to the preliminary objections, Wyse
responded:
It is admitted that there is a written contract between the
parties dated November 23, 2009, signed however, on
November 24, 2009. It is denied that that is the only
source of [Wyse’s] claim. [Wyse] also makes claim […] in
quantum meruit as [Wyse] furnished supplies and labor to
improve [Appellant’s] property.
Wyse’s Reply to Preliminary Objections, 11/10/2010, at ¶ 4.
Again, our Supreme Court has defined the doctrine of quantum meruit
as “an equitable remedy to provide restitution for unjust enrichment in the
amount of the reasonable value of services.” American and Foreign Ins.
Co. v. Jerry's Sport Center, Inc., 2 A.3d 526, 532 n.8 (Pa. 2010) (citation
omitted). “It is well-settled at common law [] that a party shall not be
barred from bringing an action based in quantum meruit when one sounding
in breach of express contract is not available.” Shafer, 96 A.3d at 996. To
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prevail under a theory of quantum meruit, a plaintiff must prove the
following three elements:
[B]enefits conferred on defendant by plaintiff[;]
appreciation of such benefits by defendant[;] and
acceptance and retention of such benefits under such
circumstances that it would be inequitable for defendant to
retain the benefit without payment of value.
Temple University Hosp., Inc. v. Healthcare Management
Alternatives, Inc., 832 A.2d 501, 507 (Pa. Super. 2003) (citation omitted).
Upon review, we discern no abuse of discretion in allowing Wyse to
proceed with a cause of action for quantum meruit. Rule 1033 allows for
liberal amendment and the trial court had the power to permit a change in
the form of action for a proper decision of the cause upon its merits. Wyse
pursued a cause of action sounding in breach of contract. However, when
confronted with Appellant’s defense that the contract was void and
unenforceable under HICPA, Wyse maintained that it had already provided
work and materials and was seeking recovery for unjust enrichment. Once
Wyse rested on the mechanic’s lien claim and Appellant requested a directed
verdict, counsel for Wyse argued, “[w]hether the contract technically stands
up to HICPA, section A, because of the contractor’s number not being on
there, he still has the right to collect under quantum meruit.” N.T.,
10/29/2013, at 89. Thus, Wyse consistently maintained that it is entitled to
recover expenses for unjust enrichment since 2010. Appellant, therefore,
failed to demonstrate he was prejudiced. Accordingly, the trial court did not
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abuse its discretion in deciding the cause of action upon its merits.
Appellant’s first claim lacks merit.
In his second issue presented, Appellant claims that the trial court
erred in finding in Wyse’s favor and against Appellant on his unworkmanlike
construction claim. Appellant’s Brief at 28. He argues “[t]he photographic
evidence alone reveals patently unworkmanlike construction.” Id. at 28-29.
Appellant contends the trial court failed to consider “at least sixty (60)
photographs that he himself took of the various items of which he
complained at trial[,]” as well as “twenty-nine (29) photographs taken and
reviewed by Gordon S. Ketchel, which also contain corresponding notations
made by Mr. Ketchel.” Id. at 29. Appellant points to trial testimony that
highlights his specific claims of unworkmanlike construction including, inter
alia, cracks in grout, poor caulking, misalignment of bathroom tile, and sub-
par installation of woodwork and trim. Id. at 30-36. Appellant claims that
said trial testimony “in conjunction with the testimony of [] Appellant himself
as to why he took the pictures he did and what they depict, presents
overwhelming evidence in support of [] Appellant’s allegation of
unworkmanlike construction that should have persuaded the [trial] court
that no reasonable minds could disagree that the work was, in fact, of an
unworkmanlike quality.” Id. at 36. Appellant avers that this is so “where,
here, [Wyse] produced no countervailing expert or third-party witnesses to
counter” his assertions. Id. Appellant maintains that “[r]ather than attempt
to defend the quality of the work depicted in the photographs, [Wyse] has
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posited that the work should be viewed as ‘incomplete.’” Id. at 37.
Appellant claims, however, that Wyse: (1) admitted that many of the
projects had been finished, and; (2) the agreement contemplated
withholding “payment in the event of defective work or the failure to correct
the same.” Id. at 37-38. Appellant argues that Wyse’s defective and faulty
work was a material breach of the parties’ agreement and “Appellant’s
reaction to this breach – the verbal and written direction to stop work – was
not an anticipatory repudiation.” Id. at 40-41.
In essence, Appellant argues that the trial court did not give
appropriate weight to the evidence presented. Our standards of review for
considering motions for JNOV and claims implicating the weight of the
evidence are 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 court 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.
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Appellate review of a weight claim is a review of the trial
court's 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 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.
The factfinder is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.
The trial court may award a judgment notwithstanding the
verdict or a new trial only when the jury's verdict is so
contrary to the evidence as to shock one's sense of justice.
In determining whether this standard has been met,
appellate review is limited to whether the trial judge's
discretion was properly exercised, and relief will only be
granted where the facts and inferences of record disclose a
palpable abuse of discretion. When a fact finder's verdict is
so opposed to the demonstrative facts that looking at the
verdict, the mind stands baffled, the intellect searches in
vain for cause and effect, and reason rebels against the
bizarre and erratic conclusion, it can be said that the verdict
is shocking.
Brown v. Trinidad, 2015 Pa. Super. 46, *2-3 (internal citations and
quotations omitted).
On this issue, the trial court determined:
[Appellant] failed to adduce persuasive evidence of
‘unworkmanlike’ performance by Wyse. The deposition
testimony of [Appellant’s] witness, Kenneth Leah, did not
warrant the conclusions urged by [Appellant] and, in several
regards, contradicted [Appellant’s] contentions. Leah
opined, for example, that a flaw in the bathroom was likely
attributed to the use of wet wood, and acknowledged that
the contractor, Wyse, would not necessarily have
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immediately known that wet wood had been supplied or
used. In other matters, Leah’s testimony provided mere
hypotheses in response to [a] suggested, but unproven,
premise offered by counsel. At trial itself, Leah’s testimony
coincided with Wyse’s in particulars, such as tub grouting
and the not unexpected, readily curable incidence of
cracking.
Trial Court Opinion, 4/28/2014, at 8-9. Further, the trial court noted:
[A]ny such acknowledgment of unfinished or poorly finished
work on Wyse’s part was modified by [Wyse’s] insistence
that, had he been permitted to complete the job, necessary
corrections would have been made. [Appellant’s] own
witness shared the view that certain of [Appellant’s]
itemizations of poor workmanship represented, more
accurately, ‘an unfinished job.’
Id. at 12.
We agree. In addition, upon review of the record, we note Appellant
admitted that he approved work as it progressed on two occasions. N.T.,
10/29/2013, at 156. The work was slated to be completed in six months.
Id. at 211-212. However, Appellant changed the locks and wrote Wyse a
letter ending construction three and one-half months into the project. Id. at
212, 255-256. Appellant admits the work was not completed when he
terminated Wyse. Id. at 186-189. Wyse was not given an opportunity to
cure any perceived deficiencies. Id. at 256. Such evidence showed, and
Appellant acknowledged, that the project was not completed and Wyse was
not given the opportunity to finish the job or cure alleged deficits.
Accordingly, the dismissal of Appellant’s unworkmanlike construction claims
was not shocking and the trial court did not abuse its discretion in dismissing
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Appellant’s claims of unworkmanlike construction. Accordingly, Appellant’s
second issue fails.
In his third issue presented, Appellant argues that the homeowner
agreement contained a binding arbitration clause that he asserted as a
defense, by way of preliminary objections to the mechanics’ lien claim filed
by Wyse, which should have foreclosed the case from proceeding to trial.
Appellant’s Brief at 43. More specifically, Appellant claims he “promptly
raised the issue of [b]inding [a]rbitration in his preliminary objections to
[Wyse’s] complaint, as well as in paragraph 39 of his [a]mended [n]ew
[m]atter.” Id. at 44. He avers “since the Mechanic’s Lien Law does not
permit the assertion of a counterclaim in response to a Mechanic’s Lien
Claim, [] Appellant had no other recourse to assert his claims of
unworkmanlike construction and violation of the UTPCPL, than to draft, file
and serve his own complaint, which he did[].” Id. at 45. However, because
we have already determined that the written homeowner agreement at issue
was void and unenforceable, the arbitration clause contained therein is
likewise void and unenforceable. See J.F. v. D.B., 897 A.2d 1261, 1278-
1279 (2006) (“if the entire Surrogacy Contract is void, egg donor could not
have ‘signed away her rights by contract.’”). Thus, this issue lacks merit.
In his fourth issue presented, Appellant argues the trial court abused
its discretion in refusing his request to admit Gordon S. Ketchel as an expert
in home construction and/or inspection. Appellant’s Brief at 45. Appellant
asserts that Mr. Ketchel was qualified and “possesses specialized knowledge
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and experience above that of the lay, fact witness that renders him
competent to testify about the quality of [Wyse’s] handiwork, as well as the
estimated cost to repair it or otherwise make [Appellant] whole or place
[him] into the position [he] reasonably expected to be in as a result of the
underlying contract.” Id. at 49-50. “[I]t was similarly an abuse of
discretion for the [trial] court to refuse to admit into evidence […] Mr.
Ketchel’s written estimate for the cost of repairs.” Id. at 52.
A court may allow “scientific, technical or other specialized knowledge
beyond that possessed by a layperson [if it] will assist the trier of fact to
understand the evidence or to determine a fact in issue[;] a witness qualified
as an expert by knowledge, skill, experience, training or education may
testify thereto in the form of an opinion or otherwise.” Commonwealth v.
Ventura, 975 A.2d 1128, 1140 (Pa. Super. 2009), citing Pa.R.E. 702.
“Decisions regarding admission of expert testimony, like other evidentiary
decisions, are within the sound discretion of the trial court. We may reverse
only if we find an abuse of discretion or error of law.” Id. (citation omitted).
“Discretion must be exercised on the foundation of reason. An abuse of
discretion exists when the trial court has rendered a judgment that is
manifestly unreasonable, arbitrary, or capricious, has failed to apply the law,
or was motivated by partiality, prejudice, bias, or ill will.” Rehrer v. Youst,
91 A.3d 183, 193 (Pa. Super. 2014) (citation omitted).
On this issue, the trial court determined:
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[Appellant], however, initially neglected to offer
evidence of specific relevant experience of Mr. Ketchel in a
particular field or, indeed, to proffer him as an expert or
invite voir dire to test his competence as an expert. Nor did
[Appellant] initially object when the court indicated that Mr.
Ketchel would testify as a fact witness. Further, Mr. Ketchel
predicated his reports on a review of a video supplied by
[Appellant] and a subsequent “limited visual inspection” of
the property in May 2013, more than three (3) years after
Wyse had been excluded from the premises. Indeed,
Ketchel predicated much of his report on the fact that
contracted work remained “unfinished,” a fact over which
there is little controversy in this matter. Inasmuch as
Ketchel provided little more than a mere further
enumeration of what could be visually observed and, as to
cost, provided what the witness acknowledged to be mere
“ballpark figures,” the [probative] function of an expert
witness under Pa.R.E. 702 would not have been served.
Trial Court Opinion, 4/28/2014, at 9-10.
Upon review, we discern no abuse of discretion in precluding Mr.
Ketchel from testifying as an expert. Mr. Ketchel testified that he is a retired
home inspector. N.T., 10/30/2013, at 286. He could not differentiate
between home inspectors and HUD consultants and did not know the type of
loan at issue in this case. Id. at 286-288. Mr. Ketchel did not perform a
visual inspection of the house until almost three years after construction
halted. Id. at 291. Mr. Ketchel provided “ballpark figures” to cure the
alleged deficiencies, based upon pricing he performed at Lowe’s Home
Improvement store. Id. at 316-320. Mr. Ketchel also acknowledged that the
work had not been completed. Id. at 331. Based upon the foregoing, we
conclude that Mr. Ketchel did not have specialized knowledge beyond that
possessed by a layperson to qualify as an expert. Certainly, a layperson
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could visually inspect a construction site and estimate repair costs at a local
hardware store. Thus, we discern no abuse of discretion in the trial court’s
assessment.
In his fifth issue presented, Appellant contends that he is entitled to a
new trial and the trial court’s recusal “based upon the trial court’s
appearance of bias, prejudice, and/or prejudgment, which was demonstrably
obvious by virtue of the trial judge’s conduct, including his expressions,
statements, tone, and overall attitude towards [Appellant].” Appellant’s
Brief at 53. He claims that a timely objection would have been futile and,
thus, the trial court should not have deemed this claim waived. Id. at 54-
55. Pointing to specific instances of testimony, Appellant argues more
particularly:
Here, the trial court exhibited a tendency to repeatedly
interrupt Appellant’s counsel and, more egregious, []
Appellant himself, during [] examination of [] Appellant,
which could certainly be described as “prosecutorial-style”
and, in some instances, caused [Appellant] to relent and
provide “yes” or “no” answers to questions that lent
themselves to greater nuance. This tendency was more
pronounced against [] Appellant than [Wyse]. Moreover,
with all due respect to the [trial] court, there developed
throughout the course of trial an appearance that the court
was practically sitting “second chair” to [Wyse’s] counsel,
oftentimes filling in significant gaps left open by the
examination of [Wyse’s] counsel, objecting where [Wyse’s]
counsel failed to object[,] or granting counsel’s objections
with little or no discussion.
Id. at 55-56.
Herein, the trial court opined:
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[Appellant’s] assignment of error is both that an
apparent bias by the court inhibited his presentation,
causing him to abandon legitimate lines of questioning, and
that he was denied an unprejudiced consideration of the
facts. It bears noting that this was a contentious non-jury
proceeding, during which each party received cautions from
the court that they were to achieve greater economy in
their presentations and develop a factual record upon which
the case could be decided. Unfortunately, the parties did
not fully adhere to that directive.
[Appellant’s] motion for post-trial relief, however, fails
to identify with any particularity either any specific lines of
questioning that he felt compelled to abandon or what proof
would have been offered in the absence of any supposed
improper bias. Notwithstanding chiding by the court to
attempt more cogent and compact presentations, both
counsel were, in fact, permitted to present their proofs and,
indeed, were permitted to engage liberally in redirect and
recross examination of witnesses. [Appellant] has mistaken
the court’s necessary hectoring in facilitating the progress of
trial as partiality. It is unlikely that Wyse would share the
view that the court insisted on concision from [Appellant]
and spared Wyse. It is less likely that either party can
identify actual prejudice from that insistence.
Trial Court Opinion, 4/28/2014, at 10-11 (footnote omitted).
Upon review, we discern no bias against Appellant. The trial court,
recognizing that this was a bench trial, was brusque with both parties in
moving the case along. N.T., 10/29/2013, at 59. Upon review of the
record, the trial judge noted his frustration with both parties due to the
disorganized nature of the presentation of exhibits. Id. at 16, 38, 336. The
trial judge chastised both parties for failing to wait until he made rulings on
objections. Id. at 70-71, 182. Numerous times throughout trial, the trial
judge asked his own questions of witnesses, but always provided both
parties with an opportunity to ask follow-up questions. Moreover, the trial
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judge precluded Wyse from calling a witness to testify regarding Wyse’s
business affairs prior to 2009, finding the proffered testimony irrelevant. Id.
at 84. The trial judge also allowed Appellant to call a witness out of order.
Id. at 96. Thus, the trial court made rulings that indulged Appellant’s
requests, as well. Accordingly, we discern no bias against Appellant and his
fifth issue is without merit.
In his sixth issue presented, Appellant claims that the trial court erred
by accepting Wyse’s claim for damages in the amount of $12,488.00 plus
interest, at a rate of six percent per annum, because such amount assumes
almost full completion of the work. Appellant’s Brief at 63-64. We observe
that Appellant's discussion contained in the argument section of his brief
addressing this issue is inadequate to provide meaningful appellate review.
“It is well settled that the argument portion of an appellate brief must be
developed with pertinent discussion of the issue, which includes citations to
relevant authority.” Pa.R.A.P. 2119(a); see also Commonwealth v. Knox,
50 A.3d 732, 748 (Pa. Super. 2012), citing Commonwealth v. Genovese,
675 A.2d 331, 334 (Pa. Super. 1996) (“[T]he argument portion of an
appellate brief must be developed with a pertinent discussion of the point
which includes citations to the relevant authority”). Here, Appellant does
not cite any legal authority for his sixth allegation of error, thus, we are
constrained to find it waived.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/1/2015
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