Riverview Carpet & Flooring, Inc. v. Presbyterian ( 2023 )

J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF
INC., A PENNSYLVANIA : PENNSYLVANIA
CORPORATION, MASCO INTERIORS, :
INC., A PENNSYLVANIA :
CORPORATION, ROLAND PASTUCHA :
ELECTRIC, INC., A PENNSYLVANIA :
CORPORATION, AND JERRY TIGANO, :
AN ADULT INDIVIDUAL, D/B/A :
TIGANO PAINTING AND : No. 670 WDA 2021
WALLCOVERING. :
:
:
v. :
:
:
PRESBYTERIAN SENIORCARE, A :
PENNSYLVANIA NON-PROFIT :
CORPORATION, LONGWOOD AT :
OAKMONT, INC., A PENNSYLVANIA :
NON-PROFIT CORPORATION, :
RICHARD G. AUFMAN, AN ADULT :
INDIVIDUAL TRADING AND DOING :
BUSINESS AS Z.G. HUNLEY CORP., :
ZADOK GRAHM HUNLEY CORP., A :
PENNSYLVANIA CORPORATION :
TRADING AND DOING BUSINESS AS :
Z.G. HUNLEY CORP., SODEXO :
OPERATIONS, LLC, A DELAWARE :
LIMITED LIABILITY COMPANY, AND :
JOHN R. MCCOLLUM, AN ADULT :
INDIVIDUAL :
:
:
APPEAL OF: ZADOK GRAHM HUNLEY :
Appeal From the Judgment Entered May 11, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 18-012048
RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF
INC., A PENNSYLVANIA : PENNSYLVANIA
CORPORATION, MASCO INTERIORS, :
J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
INC., A PENNSYLVANIA :
CORPORATION, ROLAND PASTUCHA :
ELECTRIC, INC., A PENNSYLVANIA :
CORPORATION, AND JERRY TIGANO, :
AN ADULT INDIVIDUAL, D/B/A :
TIGANO PAINTING AND : No. 674 WDA 2021
WALLCOVERING. :
:
:
v. :
:
:
PRESBYTERIAN SENIORCARE, A :
PENNSYLVANIA NON-PROFIT :
CORPORATION, LONGWOOD AT :
OAKMONT, INC., A PENNSYLVANIA :
NON-PROFIT CORPORATION, :
RICHARD G. AUFMAN, AN ADULT :
INDIVIDUAL TRADING AND DOING :
BUSINESS AS Z.G. HUNLEY CORP., :
ZADOK GRAHM HUNLEY CORP., A :
PENNSYLVANIA CORPORATION :
TRADING AND DOING BUSINESS AS :
Z.G. HUNLEY CORP., SODEXO :
OPERATIONS, LLC, A DELAWARE :
LIMITED LIABILITY COMPANY, AND :
JOHN R. MCCOLLUM, AN ADULT :
INDIVIDUAL :
:
:
:
APPEAL OF: RICHARD G. AUFMAN
Appeal From the Judgment Entered May 11, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 18-012048
PRESBYTERIAN SENIORCARE AND : IN THE SUPERIOR COURT OF
LONGWOOD AT OAKMONT, INC. : PENNSYLVANIA
:
:
v. :
:
-2-
J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
:
RICHARD G. AUFMAN, I/T/D/B/A :
Z.G. HUNLEY CORP., ZADOK GRAHM : No. 676 WDA 2021
HUNLEY CORP.,I/T/D/B/A Z.G. :
HUNLEY CORP., JOHN R. MCCOLLUM, :
SODEXO OPERATIONS, LLC AND :
JOSEPH SEPCIC, I/T/D/B/A Z.G. :
HUNLEY CORP. :
:
:
APPEAL OF: SODEXO OPERATIONS, :
LLC :
Appeal from the Judgment Entered May 11, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 15-015968
RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF
INC., A PENNSYLVANIA : PENNSYLVANIA
CORPORATION, MASCO INTERIORS, :
INC., A PENNSYLVANIA :
CORPORATION, ROLAND PASTUCHA :
ELECTRIC, INC., A PENNSYLVANIA :
CORPORATION, AND JERRY TIGANO, :
AN ADULT INDIVIDUAL, D/B/A :
TIGANO PAINTING AND : No. 677 WDA 2021
WALLCOVERING. :
:
:
v. :
:
:
PRESBYTERIAN SENIORCARE, A :
PENNSYLVANIA NON-PROFIT :
CORPORATION, LONGWOOD AT :
OAKMONT, INC., A PENNSYLVANIA :
NON-PROFIT CORPORATION, :
RICHARD G. AUFMAN, AN ADULT :
INDIVIDUAL TRADING AND DOING :
BUSINESS AS Z.G. HUNLEY CORP., :
ZADOK GRAHM HUNLEY CORP., A :
PENNSYLVANIA CORPORATION :
TRADING AND DOING BUSINESS AS :
Z.G. HUNLEY CORP., SODEXO :
-3-
J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
OPERATIONS, LLC, A DELAWARE :
LIMITED LIABILITY COMPANY, AND :
JOHN R. MCCOLLUM, AN ADULT :
INDIVIDUAL :
:
:
APPEAL OF: SODEXO OPERATIONS, :
LLC :
Appeal from the Judgment Entered May 11, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 18-012048
RIVERVIEW CARPET & FLOORING, : IN THE SUPERIOR COURT OF
INC., A PENNSYLVANIA : PENNSYLVANIA
CORPORATION, MASCO INTERIORS, :
INC., A PENNSYLVANIA :
CORPORATION, ROLAND PASTUCHA :
ELECTRIC, INC., A PENNSYLVANIA :
CORPORATION, AND JERRY TIGANO, :
AN ADULT INDIVIDUAL, D/B/A :
TIGANO PAINTING AND : No. 733 WDA 2021
WALLCOVERING. :
:
:
v. :
:
:
PRESBYTERIAN SENIORCARE, A :
PENNSYLVANIA NON-PROFIT :
CORPORATION, LONGWOOD AT :
OAKMONT, INC., A PENNSYLVANIA :
NON-PROFIT CORPORATION, :
RICHARD G. AUFMAN, AN ADULT :
INDIVIDUAL TRADING AND DOING :
BUSINESS AS Z.G. HUNLEY CORP., :
ZADOK GRAHM HUNLEY CORP., A :
PENNSYLVANIA CORPORATION :
TRADING AND DOING BUSINESS AS :
Z.G. HUNLEY CORP., SODEXO :
OPERATIONS, LLC, A DELAWARE :
LIMITED LIABILITY COMPANY, AND :
JOHN R. MCCOLLUM, AN ADULT :
INDIVIDUAL :
-4-
J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
:
:
APPEAL OF: LONGWOOD AT :
OAKMONT, INC. :
Appeal from the Judgment Entered May 11, 2021
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD-18-012048
BEFORE: BENDER, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY BENDER, P.J.E.: FILED: JUNE 8, 2023
Sodexo Operations, LLC (“Sodexo”), Richard G. Aufman, and Zadok
Grahm Hunley (“Hunley”) each appeal — at docket numbers 677 WDA 2021,
674 WDA 2021, and 670 WDA 2021, respectively — from the trial court’s May
11, 2021 judgment entered at GD 18-012048 following a non-jury trial.1
Longwood at Oakmont, Inc. (“Longwood”) cross-appeals at docket number
733 WDA 2021 from this same judgment. In addition, Sodexo appeals at
docket number 676 WDA 2021 from a separate May 11, 2021 judgment
entered at GD 15-015968.2 Upon review, we affirm in part and reverse in part
the judgment entered at GD 18-012048, and we affirm the judgment entered
at GD 15-015968.
Background
____________________________________________
1 We note that the spelling of Hunley varies throughout the record between
‘Hunley’ and ‘Hunly’. We use the spelling that is used in the caption of its
appeal in this writing, i.e., ‘Hunley’.
2 We have consolidated these cases sua sponte pursuant to Pa.R.A.P. 513.
See Pa.R.A.P. 513 (“Where there is more than one appeal from the same
order, or where the same question is involved in two or more appeals in
different cases, the appellate court may, in its discretion, order them to be
argued together in all particulars as if but a single appeal.”).
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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
The trial court summarized the background of this matter as follows:
I. The Parties
Presbyterian SeniorCare (“PSC”) is a Pennsylvania not-for-profit
corporation that provides continuum senior living and care
services in fifty-three (53) separate housing communities.
Longwood … is one of PSC’s retirement communities.
[Sodexo] is a multi-national, interdisciplinary service provider.
Sodexo offers food and senior living services including facilities
management. Sodexo also has a construction division. PSC and
Longwood engaged Sodexo to provide facilities management
services at each of their respective campuses.
John McCollum (“McCollum”) is an individual who spent most of
his career running his own construction company, W.F. Cody. He
was an employee of Sodexo during all times material to this
litigation. Sodexo assigned McCollum to perform its obligations at
both PSC and Longwood.
[Aufman] is a self-employed CPA. He is also a shareholder in
several corporations, and a friend and business associate of
McCollum.
Joseph Sepcic (“Sepcic”) is an architect. He is also a friend and
business associate of McCollum.
[Hunley] is a company, which Aufman incorporated on March 15,
2014, at the instruction of McCollum. Aufman owns twenty (20)
percent of Hunley’s shares. Sepcic owns the remaining shares.
Aufman operated Hunley out of his home[-]office accounting
practice.
Riverview Carpet & Flooring, Inc., Masco Interiors, Inc., Roland
Pastucha Electric, Inc.,[3] and Tigano Painting and Wallcovering
(collectively referred to hereinafter as the “Subcontractors”) are
all Pennsylvania Subcontractors. McCollum engaged the
Subcontractors on behalf of Hunley to perform construction and
finishing work on Longwood’s campus.
____________________________________________
3 The captions referred to ‘Roland Pastucha Electric, Inc.,’ as ‘Roland Patacha
Electric, Inc.’ We have amended them accordingly.
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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
II. Factual and Procedural Background
On December 21, 2011, Sodexo and Longwood entered into a
Facilities Management Agreement (“Longwood Management
Agreement”) with a term beginning January 16, 2012[,] and
ending January 16, 2015. The Longwood Management Agreement
required Sodexo to provide Longwood with a qualified General
Manager to function as the head of Longwood’s maintenance
department. Thereafter, on May 24, 2012, Sodexo and PSC
entered into a Facilities Management Agreement (“PSC
Management Agreement”) with a term beginning July 10, 2012[,]
and ending July 10, 2015. From 2012 to 2014, Sodexo provided
Longwood with a succession of on-site managers who did not
adequately fulfill their roles and were repeatedly replaced by
Sodexo. Meanwhile, McCollum and Sepcic discussed forming a
construction company together. During these discussions[,]
McCollum recommended that Sepcic contact Aufman.
In January of 2014, while the General Manager position at
Longwood was vacant, Sodexo assigned McCollum to assist
Longwood with a water pipe emergency. McCollum approached
Aufman and Sepcic[,] and asked them whether they were
interested in performing some work for PSC. Although, at this
time, Hunley had not yet been incorporated, McCollum
recommended Hunley to Longwood as a potential general
contractor. McCollum told Longwood that he was personally
familiar with Hunley, and that Hunley came highly recommended
by others. Hunley then submitted bids, which Longwood accepted
as a result of McCollum’s recommendations. Once the water pipes
were fixed, Longwood asked Sodexo to retain McCollum at the
Longwood campus. Sodexo agreed, hoping that McCollum would
become indispensable to Longwood, and remedy Sodexo’s
deficient performance in relation to the Longwood Management
Agreement.
In March of 2014, Paul Peterson (“Peterson”), Longwood’s new
executive director, recognizing an urgent need for renovations,
opted to establish a benchmark pricing structure for new unit
turnovers instead of obtaining multiple bids for each unit.
Peterson tasked McCollum with obtaining estimates based on work
done in the past. McCollum represented that Hunley[’s] estimates
were lower than Bill Bonura Cabinets’ estimates.1 Peterson
accepted McCollum’s representations of the estimates, and the
benchmarks were set accordingly.
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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
1 Bill Bonura Cabinets is a contractor Longwood engaged in
the past.
McCollum had a significant role in Longwood’s renovations.
McCollum was responsible for gathering information on both the
scope of work and the pricing for each unit renovation.
Additionally, McCollum was tasked with overseeing the
construction work. After a project was complete, McCollum
obtained the general contractor’s invoices and was responsible for
submitting these invoices to Longwood’s Accounts Payable
Department. Even though Hunley submitted bids as a general
contractor, Hunley did no actual work itself. Instead, McCollum
engaged subcontractors and monitored the subcontractors[’]
work. Hunley had no employees or expenses.
In May of 2014, Aufman and his wife incorporated a company
called Iron Bull Interiors, LLC. During this time, McCollum’s
performance at Longwood appeared to be satisfactory. McCollum
quickly established himself as an integral part of the unit turnover
process. Accordingly, Peterson deferred to McCollum, as Peterson
trusted McCollum’s construction experience, and McCollum’s
control of the invoice and capital approval process increased.
After September of 2014, McCollum’s submission of invoices
became increasingly sporadic. McCollum began withholding
invoices for long periods of time, which made it difficult for
Longwood to track costs on an ongoing basis. McCollum’s
practices also impacted Longwood’s cashflow. Eventually, for the
first time in 20 years, Longwood had to seek additional capital
from its Board of Directors. This made it extremely difficult for
Longwood to verify whether the invoices fell below or above
Longwood’s benchmarks. At the same time, Hunley hired
McCollum’s son Grahm, as an intern. Hunley listed Grahm as the
Vice President on the company’s signature card at First National
Bank. Hunley also gave Grahm check writing authority on behalf
of Hunley.
In October of 2014, several of [Longwood’s] executives received
an anonymous letter, which accused McCollum of having an
improper interest in Hunley. This letter raised questions regarding
Longwood’s process for retaining contractors. Longwood
confronted and interviewed McCollum in person about the
allegations, which McCollum denied. Longwood also directed
McCollum to respond to the allegations in writing, which McCollum
did. Longwood thereafter asked McCollum to fill out and sign
-8-
J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
Longwood’s conflict[-]of[-]interest statement. McCollum
completed and signed Longwood’s conflict[-]of[-]interest
statement and represented that he had no conflicts of interest.
Longwood also asked Aufman if McCollum had any interest in
Hunley. Aufman denied that McCollum had any interest
whatsoever. After Longwood concluded its investigation,
Longwood provided Sodexo with all … the aforementioned
information so that Sodexo could conduct its own review and
investigation of the matter. Based upon Longwood’s
investigation, and McCollum’s and Aufman’s assurances,
Longwood’s suspicions were mitigated, and Longwood took no
further action.
In December of 2014, Longwood discovered a large number of
delinquent Hunley invoices and thereafter informed Sodexo of
McCollum’s problematic invoice practices. A few Sodexo
executives expressed their distrust of McCollum via internal
correspondences. However, Sodexo’s executives never shared
their opinion of McCollum with Longwood. Meanwhile, Aufman
formed Fairbanks Holding Co., Inc., for McCollum, and Grahm took
ownership of Iron Bull, LLC, which was originally formed by
Aufman and Aufman’s wife. On December 9, 2014, Grahm opened
a bank account for Iron Bull, LLC. On the same day, McCollum
opened a bank account for Fairbanks Holding Co., Inc.[] The
authorized signatories for Fairbanks Holding Co., Inc., include
McCollum (as president), McCollum’s wife, Regina (as secretary),
and Grahm (as vice president).
In January of 2015, the Longwood Management Agreement was
set to automatically renew. However, Longwood sent written
notice to Sodexo that Longwood was opting out of the automatic
renewal and terminating the Longwood Management Agreement.
Nevertheless, because the PSC Management Agreement was not
set to expire until July of 2015, Longwood decided that it preferred
to end all relationships with Sodexo at the same time as PSC.
Although Sodexo offered Longwood an agreement with an
expanded scope, Longwood declined. Longwood instead
purs[u]ed a limited extension of the Longwood Management
Agreement and began negotiations with Sodexo for the same. On
January 16, 2015, Longwood and Sodexo entered into a consulting
agreement (“Longwood Consulting Agreement”). The Longwood
Consulting Agreement provided that Sodexo would continue
providing services at the Longwood campus until the end of June[]
2015. McCollum continued to manage and oversee Longwood’s
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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
renovations, and Sodexo continued to provide oversight and
supervision over McCollum’s work at Longwood.
By March of 2015, McCollum began shredding excessively large
quantities of paper. McCollum discarded the shredded paper in
various trash cans around Longwood’s campus. In total,
McCollum’s shredded paper filled about five full trash cans per
day. Meanwhile, Grahm systematically wrote checks on behalf of
Hunley to Iron Bull, LLC[,] totaling $975,000.00. Grahm then
wrote checks from Iron Bull, LLC to Fairbank[s] Holding Co., Inc.,
totaling $868,000.00. Of the funds transferred via check from
Iron Bull, LLC to Fairbanks Holding Co., Inc., $111,989.50 went
to Grahm personally. Grahm also wrote a check totaling
$33,000.00 directly to himself. Iron Bull, LLC transferred another
$10,000.00 to W.F. Cody.
On April 16, 2015, McCollum had a verbal altercation with a
Longwood employee. Thereafter, on May 1, 2015, Longwood
hired John Bulger (“Bulger”) as a Facilities Director. Although
McCollum was originally supposed to help Bulger transition into
his new role, due to McCollum’s verbal altercation with a
Longwood employee, Longwood asked Sodexo to remove
McCollum from Longwood’s campus. On his own, Bulger
attempted to understand where Longwood’s renovations projects
stood in terms of cost and completion status. However, Bulger’s
mission was frustrated because Bulger could not find adequate
records. Additionally, there remained a large number of Hunley
invoices, which Hunley claimed were overdue.
On May 22, 2015, Bulger convened a meeting with Aufman and
several disgruntled Subcontractors whom Hunley had not paid.
The end result of the meeting was that Aufman agreed to provide
Bulger with additional information so that Bulger could verify
Hunley’s invoices. However, Aufman later refused to provide the
additional documentation and continued to demand payment.
While searching for Hunley’s invoices, Longwood discovered
numerous invoices that McCollum had not submitted during his
tenure at Longwood. Some of these invoices were 18[-]months
old.
While the Subcontractors complained that they were not being
paid, Hunley refused to pay them until Longwood paid Hunley.
Longwood needed to avoid delays in the renovation process so
that Longwood’s apartments were ready in time for new
occupants. Accordingly, while Bulger’s investigation of the Hunley
- 10 -
J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
invoices remained ongoing, Longwood began issuing large checks
to Hunley in reliance upon Hunley’s promise to pay the
Subcontractors within seven (7) to ten (10) days. Nevertheless,
despite receiving $613,069.50 from Longwood after McCollum
left, Hunley did not pay the Subcontractors and continued to
demand more money from Longwood. In order to keep the
renovation projects moving along, Bulger assured the
Subcontractors that Longwood would “make good on Hunley’s
debt.” Based upon Bulger’s assurance, the Subcontractors
continued working.
Bulger began to suspect that Hunley severely overcharged
Longwood, as Bulger discovered that he could perform the role of
the general contractor himself without need for an outside general
contractor like Hunley. While Hunley threatened Longwood with
litigation, Longwood retained counsel and withheld any more
payments to Hunley for Hunley’s allegedly outstanding invoices.
Eventually, on September 14, 2015, PSC and Longwood initiated
the instant action. Through discovery, PSC and Longwood
discovered the extent of McCollum and Hunley’s relationship, in
addition to the extent of McCollum’s and Hunley’s overcharges and
fraud.
PSC and Longwood’s original complaint was docketed at GD 15-
015968. On March 20, 2017, PSC and Longwood[] filed their First
Amended Complaint. PSC and Longwood’s First Amended
Complaint is their final operative complaint. PSC and Longwood’s
final operative complaint alleged five counts. Counts I is for
Breach of Contract, and it alleges that Sodexo breached both the
Longwood Management Agreement and the PSC Management
Agreement. Count II is for Breach of Contract with a Demand for
Indemnification. Count II alleges that Sodexo breached the
indemnification clauses of both the Longwood Management
Agreement and the PSC Management Agreement. Count III is for
Unjust Enrichment, and it alleges that Hunley received inequitably
high sums of money in relation to the actual work that Hunley
performed. Count IV is for Fraud, and it alleges that Hunley,
Aufman, Sepcic, and McCollum were overpaid for their services as
a result of fraudulent misrepresentations. Finally, Count V is for
Conspiracy, and it alleges that Hunley, Aufman, Specic [sic],
McCollum, and Sodexo conspired to defraud both PSC and
Longwood.
On June 28, 2017, following PSC and Longwood’s First Amended
Complaint, Sodexo filed its final operative counterclaims to its
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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
Answer, New Matter, and Counterclaims to First Amended
Complaint. In total, Sodexo asserted four counterclaims.
Counterclaim I is for Breach of Contract, and it alleges that
Longwood breached the Longwood Management Agreement by
failing to pay software licensing fees. Counterclaim II is for Unjust
Enrichment, and it alleges that Longwood was unjustly enriched
because Longwood was able to use Sodexo’s software without
paying the requisite fees. Counterclaim III is for Breach of
Contract, and it alleges th[at] PSC breach[ed] the PSC
Management Agreement for failing to pay software licensing fees.
Finally, Counterclaim IV is for Unjust Enrichment, and it alleges
that PSC was unjustly enriched because PSC was able to use
Sodexo’s software without paying the requisite fees.
On January 23, 2017, Hunley filed a complaint against PSC and
Longwood at GD 17-00195. On March 16, 2017, this [c]ourt
consolidated Hunley’s claims at GD 17-001195 with the action at
GD 15-015968. On October 3, 2017, Hunley filed its Second
Amended Complaint, which [is] its final operative complaint.
Hunley’s final operative complaint alleged three [c]ounts. Count
I is for Breach of Contract, and it alleges that … PSC and Longwood
breached various written and oral contracts with Hunley because
PSC and Longwood failed to pay Hunley for outstanding invoices
for Hunley’s services as a general contractor. Count II is for
Unjust Enrichment, and it alleges that PSC and Longwood were
unjustly enriched because they received the benefit of the
Subcontractors’ work without paying Hunley’s outstanding
invoices. Count III alleges that PSC and Longwood are liable to
Hunley pursuant to the Pennsylvania Contractor and
Subcontractor Payment Act for failing to pay Hunley’s outstanding
invoices.
On September 7, 2018, the Subcontractors filed a Complaint
against all the above-mentioned parties at GD 18-012048. Each
of the four Subcontractors alleged a separate count for Breach of
Contract against all parties for failing to pay the invoices of the
Subcontractors. Additionally, each of the four Subcontractors
alleged a separate count for Conspiracy to Commit Fraud against
Sodexo, McCollum, Aufman, and Hunley. On November 28, 2018,
this Court consolidated the Subcontractors’ claims at GD 18-
012048 with the actions at GD 17-001195 and GD 15-015968. On
February 7, 2019, the Subcontractors filed their Amended
Complaint, which is the Subcontractors’ final operative complaint.
The Subcontractors’ final operative complaint remains unchanged
with regards to the counts for breach of contract. However, the
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J-A29002-22, J-A29006-22, J-A29008-22, J-A29009-22 & J-A29010-22
Subcontractors’ final operative complaint substituted the four
counts for Conspiracy to Commit Fraud with four counts of Unjust
Enrichment against PSC and Longwood. All of the counts for
Unjust Enrichment allege that both PSC and Longwood were
unjustly enrich[ed] because PSC and Longwood failed to provide
compensation to the Subcontractors in relation to completed
construction work.
On February 21, 2019, PSC and Longwood filed a crossclaim[,]
attempting to shift liability for the Subcontractors’ claims to
Sodexo, McCollum, Hunley, Aufman, and Sepcic. Then, on
February 27, 2019, Hunley filed its own crossclaim[,] attempting
to shift liability for the Subcontractors’ claims to PSC and
Longwood.
In [March] of 2019, this [c]ourt held a non-jury trial[,] in which
all the parties had a full and adequate opportunity to present their
respective cases. On April 9, 2020, this [c]ourt issued a
Memorandum and Non-Jury Verdict. Shortly thereafter, on April
14, 2020, this [c]ourt issued an Amended Memorandum and Non-
Jury Verdict (dated April 9, 2020), which detailed the verdicts
described below.
With regard to PSC and Longwood’s affirmative claims in their First
Amended Complaint at GD 15-015968, this [c]ourt held: (1) in
favor of PSC and Longwood and against Sodexo on Count [I]
(Breach of Contract); (2) in favor of Sodexo and against PSC and
Longwood on Count II (Demand for Indemnification); (3) in favor
of Hunley, Aufman, and Sepcic and against PSC and Longwood on
Count III (Unjust Enrichment); and (4) in favor of PSC and
Longwood and against Hunley, Aufman, Sepcic, Sodexo, and
McCollum on Count IV (Fraud) and Count V (Conspiracy). [For
these claims, the trial court determined that Longwood is entitled
to $933,220.71 from all defendants, jointly and severally.]
With regard to Sodexo’s counterclaims against PSC and Longwood
at GD 15-015968, this [c]ourt held: (1) in favor of Sodexo and
against Longwood on Sodexo’s Counterclaim I (Breach of
Contract) in the amount of $4,409.65; (2) in favor of Longwood
and against Sodexo on Sodexo’s Counterclaim II (Unjust
Enrichment); (3) in favor of Sodexo and against PSC on Sodexo’s
Counterclaim III (Breach of Contract) in the amount of
$31,666.47; and (4) in favor of PSC and against Sodexo on
Sodexo's Counterclaim IV (Unjust Enrichment).
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With regard to Hunley’s affirmative claims against PSC and
Longwood at GD 17-001195, this [c]ourt held: (1) in favor of PSC
and Longwood and against Hunley on Count I (Breach of Contract
for Unpaid Invoices)[;] (2) in favor of PSC and Longwood and
against Hunley on Count II (Unjust Enrichment for Unpaid
Invoices); and (3) in favor of PSC and Longwood and against
Hunley on Count III (Violation of the Pennsylvania Contractor and
Subcontractor Payment Act).
With regard to the Subcontractors’ claims against PSC and
Longwood at GD 18-012048,[4] this [c]ourt held: (1) in favor of
Riverview Carpet & Flooring, Inc., and against Longwood on Count
I (Breach of Contract) in the amount of $82,571.97; (2) in favor
of Masco Interiors, Inc., and against Longwood on Count II
(Breach of Contract) in the amount of $218,135.00; (3) in favor
of Roland Pastucha Electric, Inc., and against Longwood on Count
III (Breach of Contract) in the amount of $32,245.00; [(4)] in
favor of Tigano Painting and Wallcovering and against Longwood
on Count IV (Breach of Contract) in the amount of $86,597.00;[5,
6] [(5)] in favor of Longwood and against the Subcontractors on
Counts V-VIII (Unjust Enrichment); [(6)] in favor of Longwood
and against Hunley, Aufman, Sepcic, McCollum, and Sodexo on
Longwood’s Crossclaim;2 and [(7)] in favor of Longwood and
against Hunley on Hunley’s Crossclaim.
2This [c]ourt ordered Hunley, Aufman, [and] Sepcic[] to
contribute to the sums that [the] Subcontractors shall
collect from Longwood by virtue of this verdict.
____________________________________________
4 At trial, the Subcontractors represented that they had withdrawn their
breach-of-contract claims against all parties except for Hunley and Longwood.
See N.T. Trial, 3/13/19, at 1747-48. As discussed infra, the trial court later
amended its verdict to include Hunley, Aufman, Sepcic, and McCollum as
parties against whom each Subcontractor was awarded damages for breach
of contract.
5 In finding that Longwood breached its contracts with the Subcontractors, the
trial court determined that Bulger’s “promises to the Subcontractors constitute
an enforceable contract of guaranty by Longwood to guarantee paying the
invoices which Hunley owed to the Subcontractors.” Trial Court Memorandum
and Non-Jury Verdict (“TCMNV”), 4/14/20, at 24.
6 The total amount due to the Subcontractors is $419,548.97.
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Following this [c]ourt’s April 14, 2020[] Amended Memorandum
and Non-Jury Verdict, the parties filed Motions for Post-Trial
Relief. On September 29, 2020, after hearing oral argument, and
after due considerations of the parties’ briefs, this [c]ourt issued
an order addressing the parties’ Motions for Post-Trial Relief. This
[c]ourt’s September 29, 2020 order denied Sodexo’s, Hunley’s,
McCollum’s, Aufman’s, and Sepcic’s Motions for Post-Trial Relief.
This [c]ourt’s September 29, 2020 order also denied PSC’s and
Longwood’s Motion for Post-Trial Relief, at least to the extent that
PSC and Longwood requested an additional award for punitive
damages, and a stay of execution pursuant to Pa.R.C[iv].P. 3121.
This [c]ourt’s September 29, 2020 order, nonetheless, granted
PSC and Longwood’s Motion for Post-Trial Relief to the extent that
PSC requested that the April 14, 2020 Amended Non-Jury Verdict
be amended further to reflect this [c]ourt’s decision as explained
in this [c]ourt’s April 14, 2020 Amended Memorandum.
Accordingly, Sections 4(a)-(d) of this [c]ourt’s Amended Non-Jury
Verdict[,] dated April 14, 2020[,] were amended to include
Hunley, Aufman, Sepcic, and McCollum as parties against whom
each Subcontractor was awarded damages [for breach of
contract]. Section 4(f) of this [c]ourt’s Amended Non-Jury
Verdict[,] dated April 14, 2020[,] was also amended to read: “In
favor of Longwood and against Hunley, Aufman, Sepcic,
McCollum, and Sodexo on Longwood’s Crossclaim. Hunley,
Aufman, Sepcic, McCollum, and Sodexo shall, jointly and
severally, indemnify Longwood for all amounts [Longwood] pays
or are otherwise collected from [Longwood] by the Subcontractors
pursuant to this Verdict.”
On May 7, 2020, the Subcontractors also filed a Motion to Mold
the Verdict to include pre-judgment and post-judgment interest.
The Subcontractors’ Motion to Mold the Verdict was heard at the
same time as the other parties’ Motions for Post-Trial Relief. In a
separate order dated September 29, 2020, but filed on October 1,
2020 (the “October 1, 2020 order”), this [c]ourt granted the
Subcontractor’s Motion to Mold the Verdict. Accordingly, this
[c]ourt’s October 1, 2020 order molded the above[-]mentioned
verdicts awarded in favor of the Subcontractors to include pre-
judgment and post-judgment interest. Specifically, the final
amounts of the verdicts awarded in favor of the Subcontractors
were molded as follows: (1) in favor of Riverview Carpet &
Flooring, Inc., and against Longwood, Hunley, Aufman, Sepcic,
and McCollum on Count I (Breach of Contract) in the amount of
$156,756.00; (2) in favor of Masco Interiors, Inc., and against
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Longwood, Hunley, Aufman, Specic [sic], and McCollum on Count
II (Breach of Contract) in the amount of $287,477.04; and (3) in
favor of Tigano Painting and Wallcovering and against Longwood,
Hunley, Aufman, Sepcic, and McCollum on Count IV (Breach of
Contract) in the amount of $114,531.95.
On February 2, 2021, after reviewing Longwood’s and PSC’s
Petition for Award of Attorney[s’] Fees and Litigation Expenses
Including Pre-Hearing Statement, and after a hearing on the
same, this [c]ourt issued an order granting Longwood and PSC
attorney[s’] fees and expenses totaling $1,062,053.67.
Trial Court Opinion (“TCO I”), 4/19/22, at 1-13 (some original brackets
changed to parentheses; some brackets added; spelling of Hunley modified).
On May 11, 2021, the trial court entered separate judgments on each
trial court docket (i.e., GD 15-015968, GD 17-001195, GD 18-012048).7 Each
separate judgment contained only the trial court docket number at which the
judgment was filed and related only to the claims associated with that
particular docket number.
Sodexo, Aufman, and Hunley each filed a timely notice of appeal from
the judgment entered at trial court docket GD 18-012048.8, 9 Longwood also
____________________________________________
7 Some of the parties involved in this matter had prematurely filed appeals
without judgment being entered. This Court quashed those appeals, directing
the parties to appeal after the trial court entered separate judgments at each
trial court docket. See Trial Court Judgment at GD 15-015968, 5/11/21, at
Exhibit A; Trial Court Judgment at GD 18-012048, 5/11/21, at Exhibit A.
8In addition to the appeals addressed in this writing, there are multiple other
appeals related to this matter before our Court at docket numbers 671 WDA
2021, 672 WDA 2021, 673 WDA 2021, and 675 WDA 2021.
9In the captions of these notices of appeal, only the trial court docket number
GD 18-012048 was listed.
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subsequently filed a timely cross-appeal at this docket.10, 11 In addition,
Sodexo filed a timely notice of appeal from the judgment entered at trial court
docket GD 15-015968.12 The trial court directed each of them to file a
Pa.R.A.P. 1925(b) concise statement for their respective appeals, and they all
timely complied. The trial court thereafter issued opinions pursuant to Rule
1925(a).13
Longwood’s Appeal at 733 WDA 2021
We commence our review with Longwood’s appeal at 733 WDA 2021.
There, Longwood presents the following questions for our consideration:
1. Whether Longwood … is liable to [the Subcontractors] for
unpaid invoices directed to [Hunley] by virtue of a purported
contract of guaranty, where such guaranty was oral, not
supported by adequate consideration, and the essential terms of
which were not defined.
____________________________________________
10Longwood also only listed trial court docket number GD 18-012048 in its
notice of appeal.
11 See Pa.R.A.P. 903(b) (“[I]f a timely notice of appeal is filed by a party, any
other party may file a notice of appeal within 14 days of the date on which the
first notice of appeal was served, or within the time otherwise prescribed by
this rule, whichever period last expires.”).
12 Therein, Sodexo only listed trial court docket number GD 15-015968.
13The trial court’s Rule 1925(a) opinions do not respond to all the issues raised
by the parties in their Rule 1925(b) concise statements. Nevertheless, our
review is not hampered, and a remand for the preparation of additional Rule
1925(a) opinions is not warranted. See Commonwealth v. Widger, 237
A.3d 1151, 1158 n.5 (Pa. Super. 2020) (“Although we do not approve of or
sanction the trial court’s failure to comply with its obligations under Rule
1925(a), the lack of a Rule 1925(a) opinion does not preclude this Court’s
review of the merits of [the a]ppellant’s issues based upon our review of the
record, including the notes of testimony from [the a]ppellant’s trial.”).
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2. Whether Longwood is liable to the Subcontractors for pre-
judgment interest (excluding Roland Pastucha Electric, Inc., which
did not assert a claim for pre-judgment interest) when:
(a) the Subcontractors’ oral contracts were with, and their
invoices were directed to, Hunley and not Longwood; and
(b) the total amount due by Hunley on the Subcontractors’
invoices was unknown to Longwood at the time of
Longwood’s purported guaranty; and
(c) the equities did not support an imposition of pre-
judgment interest against Longwood.
3. Whether Longwood was entitled to a stay of payment of the
judgment entered against Longwood and in favor of the
Subcontractors, when:
(a) Pa.R.Civ.P. 3121(b)(2) permits a trial court to stay
execution against a judgment debtor when justice so
requires, as it did in this case;
(b) Longwood’s liability to the Subcontractors was found to
be based upon a guaranty, and a guarantor’s payment
obligation is only triggered upon default by the principal
debtor; and
(c) Hunley, … Aufman …, and … Sepcic … are principally
liable for the underlying debt owed to the Subcontractors.
Longwood’s Brief at 733 WDA 2021 (“Longwood Brief I”) at 6-7.
Longwood’s First Issue
In Longwood’s first issue, it argues that its purported oral guaranty to
pay Hunley’s debt to the Subcontractors was not enforceable. First, it
contends that oral guaranties are barred by the Statute of Frauds. Second,
Longwood advances that there was no consideration for the purported
guaranty, as it disputes that Bulger made a promise that Longwood would pay
the Subcontractors if they agreed to keep working. It insists that “the
Subcontractors cannot, and at trial did not, point to any statement or
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representation from Bulger or any other person at Longwood promising
payment of Hunley’s [debt] in exchange for on-site work.” Id. at 38. Third
and finally, Longwood points out that “[a] critical aspect to the formation of
any enforceable contract is a mutual understanding of all material terms[,]”
and says that Bulger did not know the amount of Hunley’s debt to the
Subcontractors at the time he made the purported guaranty on behalf of
Longwood. Id. at 39. In addition to Bulger’s not knowing how much Hunley
owed the Subcontractors, Longwood says the Subcontractors “presented no
evidence at trial showing that they told Bulger how much they were owed by
Hunley. And because of Aufman’s refusal to provide documentation to back
up Hunley’s invoices…, the amount owed to the Subcontractors was not clear
to the parties until the time of trial….” Id. at 40 (citation omitted).
To challenges to a non-jury verdict, we apply the following standard and
scope of review:
Our standard of review in non-jury trials is to assess whether the
findings of facts by the trial court are supported by the record and
whether the trial court erred in applying the law. Upon appellate
review[,] the appellate court must consider the evidence in the
light most favorable to the verdict winner and reverse the trial
court only where the findings are not supported by the evidence
of record or are based on an error of law. Our scope of review
regarding questions of law is plenary.
Woullard v. Sanner Concrete and Supply, 241 A.3d 1200, 1207 (Pa.
Super. 2020) (citations omitted).
Statute of Frauds
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We assess Longwood’s Statute-of-Frauds argument to begin. In support
of its claim that the Statute of Frauds bars oral guaranties, Longwood relies
on 33 P.S. § 3, which provides:
No action shall be brought whereby to charge any executor or
administrator, upon any promise to answer damages out of his
own estate, or whereby to charge the defendant, upon any special
promise, to answer for the debt or default of another, unless the
agreement upon which such action shall be brought, or some
memorandum or note thereof, shall be in writing, and signed by
the party to be charged therewith, or some other person by him
authorized.
33 P.S. § 3.
With respect to Section 3, this Court has explained:
Promises to pay the debt of another must be in writing for at least
two reasons. The first is evidentiary. The second, cautionary.
Like other provisions of the [S]tatute of [F]rauds, the
suretyship provision serves an evidentiary function. Indeed,
… the circumstance that ‘the promisor has received no
benefit from the transaction … may make perjury more
likely, because while in the case of one who has received
something the circumstances themselves which are capable
of proof show probable liability, in the case of a guaranty
nothing but the promise is of evidentiary value.’
Furthermore, though in many instances the surety is paid
by the principal for his undertaking, in others the surety’s
motivation is purely gratuitous and, ‘as the lack of any
benefit received by the guarantor increases the hardship of
his being called upon to pay, it also increases the
importance of being very sure that he is justly charged.’
In addition to its evidentiary role, the provision serves a
cautionary function. By bringing home to the prospective
surety the significance of his act, it guards against ill-
considered action. Otherwise, he might lightly undertake
the engagement, unwisely assuming that there is only a
remote possibility that the principal will not perform his
duty….
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E.A. Farnsworth, Contracts § 6.3 (1982).
Thomas A. Armbruster, Inc. v. Barron, 491 A.2d 882, 883-84 (Pa. Super.
1985) (emphasis in original; original brackets omitted).
In response to Longwood’s reliance on Section 3, the Subcontractors
assert that an exception to the Statute of Frauds — specifically, the Leading
Object Rule — applies here. Subcontractors’ Brief at 11, 14-15. Under the
Leading Object Rule, “[w]henever the main purpose and object of the
promisor, is, not to answer for the debt of another, but to subserve some
pecuniary or business purpose of his own … his promise is not within the
[S]tatute of [F]rauds, although it may be in form a provision to pay the debt
of another….” Thomas A. Armbruster, Inc., 491 A.2d at 884 (citations and
original brackets omitted).14 The reason for this exception is because:
____________________________________________
14 Longwood argues that the Subcontractors waived their Leading-Object-Rule
argument because they raised it for the first time in their appellate brief. We
disagree. To start with, “it is a well-settled doctrine in this Commonwealth
that a trial court can be affirmed on any valid basis appearing of record.” See
In the Interest of T.P., 78 A.3d 1166, 1170 (Pa. Super. 2013) (citations
omitted). “The precept may be applied even though the reason for sustaining
the judgment was not raised in the trial court, relied on by that court in
reaching its decision, or brought to the attention of the appellate courts.” Id.(citation omitted).
Notwithstanding the foregoing, Longwood complains that the
Subcontractors did not raise the Leading Object Rule in their amended
complaint, reply to new matter, post-trial motion to mold the verdict, or in a
concise statement of errors complained of on appeal. Setting aside that we
can affirm on any basis, we are unconvinced that the Subcontractors had to
raise the Leading Object Rule at these junctures below. Longwood’s Reply
Brief at 733 WDA 2021 (“Longwood’s Reply Brief”) at 4-5. Specifically, the
Subcontractors did not have to file a concise statement of errors complained
of on appeal because they did not file an appeal, and we do not see why (nor
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Where the surety-promisor’s main purpose is his own primary or
business advantage, the gratuitous or sentimental element often
present in suretyship is eliminated, the likelihood of disproportion
in the values exchanged between promisor and promisee is
reduced, and the commercial context commonly provides
evidentiary safeguards. Thus[,] there is less need for cautionary
or evidentiary formality than in other cases of suretyship.
Id. (citing Restatement (Second) of Contracts § 116, cmt. a).
The Subcontractors argue that the main purpose of Bulger’s promise
was not to answer for the debts of Hunley, but instead to benefit the business
____________________________________________
does Longwood explain why) the Subcontractors would have had to raise the
Leading Object Rule in their amended complaint or post-trial motion to mold
the verdict.
As for the Subcontractors’ reply to new matter, we also would discern
no issue. In the Subcontractors’ complaint against all defendants, they
alleged various breaches of oral and written contracts that pertained to
projects at Longwood’s campus. See generally Subcontractors’ Amended
Complaint, 2/7/19. In Longwood’s new matter, it simply stated, without any
further elaboration or specificity, that “Subcontractors’ claims are barred by
the [S]tatute of [F]rauds.” See Longwood’s Answer to Subcontractors’
Amended Complaint with New Matter and Crossclaims, 2/21/19, at ¶ 73.
Longwood did not specifically set forth Section 3, mention oral guarantees, or
explain why or how the Statute of Frauds barred the Subcontractors’ claims
against all the defendants. In reply, the Subcontractors stated: “In response
to Paragraph 73, said paragraph is a conclusion of law to which no response
is required. Accordingly, said paragraph is deemed denied by operation of
law. However, to the extent that an answer may be required,
[Subcontractors’] claims are not barred by the [S]tatute of [F]rauds.”
Subcontractors’ Reply to New Matter, 2/27/19, at ¶ 6. Given the general way
in which Longwood raised the Statute of Frauds in its new matter, we deem
the Subcontractors’ reply a sufficient response. Further, based on our review
of record, it appears that Longwood did not specifically raise Section 3 of the
Statute of Frauds until its own appellate brief. Prior to that, it only generally
argued in its post-trial motion, without supporting authority, that an oral
guaranty was unenforceable. See Post-Trial Motion, 6/12/20, at 9 (asserting,
without any elaboration, that “the oral statements of … Bulger to the
Subcontractors purporting that Longwood ‘would make good on Hunley’s
invoices’ do not amount to an enforceable guaranty in that they were oral and
not supported by adequate consideration”).
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interests of Longwood, as it ensured that the Subcontractors completed the
work, allowing the units at Longwood to be sold or otherwise occupied.
Subcontractors’ Brief at 11. The Subcontractors say that “Longwood could not
stop the work if it wanted to get the residents into the apartments in time.”
Id. at 13 (citation omitted). The trial court also recognized the losses that
Longwood would incur if the Subcontractors’ work did not continue,
explaining:
Bulger’s statements that Longwood will “make good on Hunley’s
invoices” were not mere gratuities, but a binding contract of
guaranty. Those statements[,] in conjunction with his promise
during the May 22 meeting[,] show that Bulger’s reassurances
were intended to persuade the Subcontractors to continue
working on Longwood’s projects. This [c]ourt is persuaded
that the Subcontractors had no faith that Hunley would pay them;
Hunley persisted to default on its payments to the Subcontractors
even after Longwood paid Hunley a significant payment on the
promise that Hunley would pay the Subcontractors. Bulger’s
promises were the only reason the Subcontractors
continued working….
[T]he benefit that Longwood obtained for its promise to guarantee
Hunley’s debt constituted sufficient consideration. If the
Subcontractors had exercised their right to withhold
performance on their contracts with Hunley, Longwood
admittedly would have incurred significant losses.
Longwood had no means by which it could require the
Subcontractors to work, as it had no direct contract with them.
Therefore, Bulger’s promises that Longwood would make
good on Hunley’s debts were supported by sufficient
consideration and constitute an enforceable contract of
guaranty.
TCMNV at 24-25 (emphasis added).15
____________________________________________
15Based on our review of the record, the trial court did not specifically address
the application of the Leading Object Rule to the matter at hand.
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The record supports the trial court’s factual findings. See Woullard,
supra. To begin, the importance to Longwood’s business of completing unit
renovations in a timely manner was emphasized repeatedly throughout the
trial. See N.T. Trial, 3/4/19, at 43 (PSC’s Chief Executive Officer — Paul
Winkler — stating: “So we have a period of time when a person moves out of
an apartment, they move to a higher level of care and maybe because of
death, that kind of thing, and in which we then are marketing that unit, and
so that period of time is really important that it not become too prolonged”);
id. (Winkler’s conveying that, at the time Sodexo was hired, Longwood “was
seeing … a significant increase in the number of units that were vacant and
needed renovation or refurbishment”); id. at 91 (Winkler’s agreeing that one
of the key drivers is getting people into apartments as soon as possible so
that they pay entrance fees and maintenance fees); id. at 118 (Winkler’s
sharing: “But first and foremost[,] our team closest to the work was most
concerned about anything that could cause disruption with completing those
units so that we could market them. … [T]here was a heightened urgency
around that”); id. at 194 (Winkler’s recounting that, in ending
Longwood/PSC’s relationship with Sodexo, “the biggest concern was we
needed to get these unit renovations done”); N.T. Trial, 3/5/19, at 245-46
(James Pieffer, the Senior Vice President for PSC, explaining: “[T]he successful
retirement communities really depend on strong occupancy and good expense
quality and control. So[,] without having units ready to be marketed, shown,
and sold to residents, we are at a strong disadvantage”); id. at 390 (Pieffer’s
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stating that “[o]ur marketing depends on having units available[,]” and
agreeing that Longwood is not making money if no one is living there); id. at
427 (Senior Director at Longwood, Paul Peterson, relaying: “We had
prospects, people interested in moving into the apartments, and we had
committed to them about a deadline for the project being completed so that
they could move in. They were trying to prepare and plan their life, and they
were trying to sell their home so that they could move into that apartment[,]
… so it was crucial that the timelines were being met”); N.T. Trial, 3/6/19, at
550 (Peterson’s confirming that Longwood is not making money unless people
are living in the units); id. at 629 (PSC’s Chief Financial Officer’s — Joseph
Wenger — testifying: “Census and occupancy is the whole driver of Longwood
at Oakmont’s particular type of business. You have to keep the apartments
occupied, and so census is a heightened issue, and certainly a lot of
conversation around what was being occupied and what I will say inventory
that was not renovated and could be sold [sic]”).
In addition, John Bulger testified that, when he first took the position
with PSC, he learned that Longwood was struggling with the unit-turnover
process, and that “there was some trouble with getting the apartments
renovated in time for the residents to move in.” N.T. Trial, 3/11/19, at 48.
Bulger further acknowledged that the fact that the Subcontractors were not
getting paid was causing him a problem, and that they were starting to come
to him for payment. Id. at 1359. See also id. at 1237-38 (Aufman’s
remembering that he received an email from Bulger on June 1, 2015, where
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Bulger stated: “You have a very angry group of subs, some of which may
refuse to work with us until they see some payments.”).
Further, despite beginning to believe that Hunley’s prices were higher
than normal, Bulger did not stop Hunley’s work due to his concern about
having residents move into their apartments on time:
[Sodexo’s attorney:] [W]e saw an email earlier[, dated June 9,
2015,] with [Jim] Deller who was Hunley’s superintendent, and
you were talking about other things for him to keep going on;
right?
[Bulger:] They were projects in process, yes.
[Sodexo’s attorney:] Well, you could have stopped it; right?
[Bulger:] Not if I wanted to get the residents into their apartment
in time.
[Sodexo’s attorney:] So you were pressed?
[Bulger:] Not pressed. I work by deadlines. It is a construction
business. That is what we do.
[Sodexo’s attorney:] But you could have stopped -- you are a
construction guy. You’ve got lots and lots of contacts?
[Bulger:] I do.
[Sodexo’s attorney:] There are lots of subcontractors that work in
that area that you have relationships with?
[Bulger:] Absolutely.
[Sodexo’s attorney:] So you don’t think you could have put a full
stop to any work and brought in people in a matter of days to pick
it up?
[Bulger:] That is not a fair time to give someone the chance to
give me a price to finish the project. You should give them at
least 7 to 10 days and go through the three[-]bid process.
[Sodexo’s attorney:] So between --
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[Bulger:] It is a two to three-week process to bring in another
contractor.
Id. at 1397-98.
Against this backdrop of time pressures, Bulger met with Aufman and
the unpaid Subcontractors on May 22, 2015. See TCO I at 6. Regarding that
meeting, Robert Swidorsky — an employee of Riverview Carpet & Flooring,
Inc. — testified:
[Subcontractors’ attorney:] What was the purpose of [the May 22]
meeting?
[Swidorsky:] I think the purpose of the meeting[,] essentially[,]
was for all of the subs that were involved in these projects that
were ongoing[,] and some projects that were probably already
completed that we hadn’t been paid for, which is what caused the
apprehension with us moving forward [sic]. If we hadn’t been
paid for the first, say, six or eight projects, we were kind of
nervous about the next eight to fifteen projects we were in the
middle of. If we didn’t get paid for the first ones, we needed
reassurance we were getting paid for the ones we were in the
middle of, as well as the ones we hadn’t been paid for yet.
[Subcontractors’ attorney:] Did you receive any reassurances at
that meeting?
[Swidorsky:] We did.
[Subcontractors’ attorney:] What was told to you?
[Swidorsky:] It was essentially said that, you know, we need you
guys to stick [it] out, get these jobs done, and Longwood owes
Hunley more money than Hunley owes you guys[,] and that we
would be sure that you got paid.
[Subcontractors’ attorney:] Who made this statement?
[Mr. Swidorsky:] John Bulger.
[Subcontractors’ attorney:] When he said that, who did you think
he meant … was going to make sure you got paid?
[Swidorsky:] I think we all walked away from that meeting
thinking[,] in one way or shape or form[,] that Longwood was not
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going to hang us out to dry and [it would] make sure we were
paid, whether it be with the[ir] withholding funds from Hunley to
be sure we were paid, or they would pay us directly.
[Subcontractors’ attorney:] I believe you stated that you were
going to get paid for all … the outstanding invoices?
[Swidorsky:] Correct, as well as the ones we were in the midst of.
We hadn’t completed several projects, and that was our concern,
… we needed assurance we were going to get paid if we continued
to do the work.
[Subcontractors’ attorney:] Do you know why he would have
made a statement to you that you were going to get paid for all …
your outstanding invoices?
[Swidorsky:] I would have to assume, but assuming that there
were probably a couple meetings prior to that meeting with the
group of us, that, you know, they understood what their
commitments were to their residents and incoming residents, that
they couldn’t start that process over and fulfill their deadlines. My
feeling was they wanted to give us the assurance we would be
paid so they could stay on track with the work they needed
completed.
[Subcontractors’ attorney:] They wanted assurance from you that
you were going to stay; is that correct?
[Swidorsky:] Right.
[Subcontractors’ attorney:] What would happen if you walked off
the job because you were not paid all … these outstanding
invoices?
[Swidorsky:] I would have to speculate that they would have to
start the process with new contractors that would come in the
middle of those projects, and at the end of the day[,] that is just
a tremendous amount of lost time. And you’ve got facilities tor[n]
up due to floods and things of that nature. They didn’t have time.
They needed their facility to be put back together.
[Subcontractors’ attorney:] Now, I want you to clarify something
for us. You stated earlier that -- this might not be verbatim -- but
that Mr. Bulger said money had been held back from Hunley to
pay you?
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[Swidorsky:] No. … [A]t the end of the projects that we were
either not paid for yet or the projects that we were in the middle
of, that those totals were more money than Hunley owed us for
either the projects that were completed or the projects that we
were in. Therefore, that was our assurance, that they would either
withhold money from Hunley to pay us, or they would be sure we
got paid. How exactly they were going to pay us[,] really[,] I can
only speculate on. That was the impression -- based on the
verbiage used, whether they withheld money or paid us
[them]selves, the assurance was we would be paid.
[Subcontractors’ attorney:] Either way you were led by Mr. Bulger
[to believe] that you would be paid?
[Swidorsky:] Yes. At that point[,] it was adequate. An
organization the size of [PSC], when there’s an administrative
assurance you will get paid for the work you do, in my mind that’s
enough.
N.T. Trial, 3/13/19, at 1766-69.
Bob Bierly of Riverview Carpet and Flooring, Inc., similarly testified that
“Mr. Bulger assured us, don’t worry, we will get paid, more money is owed
than we are owed…. He did ask us to finish the projects that we were currently
involved in that Hunley had assigned to us so that people could move in, or,
you know, different things like that could happen.” Id. at 1752. When asked
if he thought of leaving the project because of the money owed, Bierly
answered: “When [Bulger] assured us that we would get paid, it wasn’t a
problem. It was to the point where I was not able to carry much more. I
couldn’t expend any more money without receiving money.” Id. at 1752-53.
Bierly also relayed that Bulger “said if we didn’t get paid by Hunley, that
[Longwood] would take care of it because more money was owed, that they
would be able to make the subs whole.” Id. at 1753.
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After the May 22, 2015 meeting, and after Hunley still had not paid the
Subcontractors, Bulger sent an email, on July 30, 2015, advising an owner
from Masco Interiors, Inc., that “[e]veryone will get all the money they are
owed” and telling the owner that he would not let her down. N.T. Trial,
3/11/19, at 1414. When asked at trial if he ever had a meeting with the
Subcontractors where he guaranteed them that they would get paid, Bulger
stated, “I’m not sure I used the word guaranteed, but I had meetings with the
subs saying I thought they should be paid fairly for the work they did.” Id.
at 1420. See also id. at 1416 (Bulger’s stating that “[f]rom the very
beginning[,] I had let everybody that was involved in any discussion know
that it was my intention to pay the subs”).
Based on the foregoing, the record supports that Longwood primarily
guaranteed Hunley’s debt to serve its own business interest of having
residents move into their apartments as quickly as possible. While Bulger
may have truly empathized with the Subcontractors’ plight and felt a moral
obligation that they should be paid fairly, he also was well aware of the
importance of having residents move into their units on time and had concerns
that some of the Subcontractors may refuse to work if they were not paid,
leading Longwood to miss deadlines, lose money, and anger its prospective
residents. However, once Bulger told the Subcontractors that Longwood
would assure that they were paid, the Subcontractors continued working.
Thus, the Leading Object Rule applies, and the Statute of Frauds does not bar
Bulger’s oral guaranty.
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Consideration
Turning next to Longwood’s lack-of-consideration argument, Longwood
says “[a] contract of guaranty, like other contracts, is not enforceable unless
based on a legal consideration, and such consideration is not found in a mere
naked promise to pay the existing debt of another.” Longwood’s Brief I at 32
(quoting Harr v. Perkins, 6 A.2d 534, 536 (Pa. 1939)). It adds, “[a] moral
obligation does not support a contract of guaranty.” Id. (quoting Deeter v.
Dull Corp., 617 A.2d 336, 341 (Pa. Super. 1992)). Longwood claims that, at
the May 22, 2015 meeting, “Longwood agreed to pay Hunley in reliance on
Hunley’s promise it would pay the Subcontractors[,]” and that “there was no
promise made at the May 22 meeting, or at any other time, that Longwood
would pay the Subcontractors if they agreed to keep working.” Id. at 34.
Further, Longwood insists that, “[w]hile the Subcontractors may have
subjectively felt that the only way they were going to get paid was to keep
working, this feeling or inference is not sufficient to establish consideration for
a guaranty.” Id. at 38.
The record belies this argument. As set forth supra, Swidorsky and
Bierly both indicated that Bulger’s assurances that Longwood would make sure
they got paid led them to continue working, even though they had not been
paid for the work they already did. While Bulger may not have made finishing
the work a condition for getting paid for the outstanding invoices, it is unlikely
that the Subcontractors would have moved forward with the work, knowing
that Hunley had repeatedly failed to pay them, if Bulger had not given
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assurances.16 The fact that the Subcontractors continued working, saving
Longwood from costly delays, constituted sufficient consideration for
Longwood’s guaranty.
Mutual Understanding of Terms
Lastly, Longwood says that Bulger did not know the amount of Hunley’s
debt to the Subcontractors at the time he made the purported guaranty.
Longwood advances that “[a]n enforceable contract is not made out unless
each of its terms is shown with certainty and conciseness. Price is a material
element of a contract.” Id. at 39 (quoting Stevens v. Doylestown Bldg. &
Loans Ass’n, 183 A. 922, 922-23 (Pa. 1936)). Longwood contends that “[a]n
open-ended guaranty of an unknown amount is unenforceable, as it lacks the
basic elements of a contract; namely, clear agreement on basic terms, such
as: ‘How much?’” Id. at 40. As such, Longwood avers that, “because … Bulger
did not know what he was promising to ‘make good,’ his statements do not
constitute an enforceable guaranty.” Id. at 41.
____________________________________________
16We recognize that Raymond Mascaro of Masco Interiors, Inc., testified that
he and the other Subcontractors did not think about leaving the job because
“[w]e felt that the only way to get paid was to stay. … No one gets paid for
half of a job. I don’t pay people to do half a job, and I don’t expect that.”
N.T. Trial, 3/13/19, at 1781. However, he also confirmed that he was led to
believe that, if he stayed, he would be paid. Id. at 1781-82. Further, the
testimony of Swidorsky and Bierly both support that they continued working
because of Bulger’s assurances, which implies that they would not have
continued working if their source of payment was only the unreliable Hunley.
See Woullard, supra (“Upon appellate review[,] the appellate court must
consider the evidence in the light most favorable to the verdict winner and
reverse the trial court only where the findings are not supported by the
evidence of record or are based on an error of law.”) (citations omitted).
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We reject Longwood’s argument, as the record supports that Bulger
knew the amount of Hunley’s debt to the Subcontractors at the time he made
the guaranty. Various Subcontractors testified that Bulger told them that
Longwood owes Hunley more money than Hunley owes the Subcontractors.
See N.T. Trial, 3/13/19, at 1752 (Bierly’s stating that Mr. Bulger “assured us,
don’t worry, we will get paid, more money is owed than we are owed…”); id.
at 1753 (Bierly: “[Bulger] said if we didn’t get paid by Hunley, that they would
take care of it because more money was owed, that they would be able to
make the subs whole. … I guess when the projects were completed, that
Longwood would owe Hunley more than enough money to pay us”); id. at
1767 (Swidorsky’s stating that Bulger told him that “Longwood owed Hunley
more money than Hunley owed you guys and that we would be sure that you
got paid”); id. at 1770 (Swidorsky’s explaining: “It was simply said that there
is enough money there for these projects and that we are assuring you that
you will be paid. [Longwood] never flat out said they would pay us. They
never said that Hunley would pay us. They just said we would be paid”); id.
at 1777 (Mascaro’s testifying that, at the May 22 meeting, “we were told that
they had held back enough money from Hunley to make us all whole and that
we would get paid”). Therefore, in making these statements, Bulger had to
know how much Hunley owed the Subcontractors and the amount he was
guaranteeing. Thus, this claim fails, and no relief is due on Longwood’s first
issue.
Longwood’s Second Issue
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In Longwood’s second issue, it argues that the Subcontractors should
not have been awarded pre-judgment interest against Longwood.17 By way
of background, following the trial court’s verdict, the Subcontractors filed a
motion to mold the verdict, requesting pre-judgment interest from the date
of their invoices to the date of the judgment. See Subcontractors’ Motion to
Mold the Verdict, 5/7/20; Subcontractors’ Supplement to Motion to Mold the
Verdict, 9/21/20; see also Subcontractors’ Trial Brief, 5/31/19, at 11 (“[T]he
[S]ubcontractors will be filing a motion to mold the verdict to include interest
from the date of their invoices to the date of the judgment, based on whatever
amount this [c]ourt awards.”). Longwood appears to have filed no response
to the Subcontractors’ motion to mold the verdict. Thereafter, the trial court
— without explanation — awarded the Subcontractors the pre-judgment
interest they requested, i.e., pre-judgment interest from the date of their
invoices to the date of the judgment.
With respect to pre-judgment interest, this Court has previously
explained:
“[A] court has discretion to award or not award pre[-]judgment
interest on some claims, but must or must not award pre[-
]judgment interest on others.” Cresci Const. Services, Inc. v.
Martin, 64 A.3d 254, 258 (Pa. Super. 2013) (quoting, in part,
Fidelity Bank v. Com. Marine and Gen. Assurance Co., 592
____________________________________________
17 While we continue referring to the Subcontractors collectively in this section
of our writing, we note that Roland Pastucha Electric, Inc., did not assert a
claim for pre-judgment interest. See Longwood’s Brief I at 41 n.10;
Subcontractors’ Brief at 7. Thus, Roland Pastucha Electric, Inc., is not entitled
to pre-judgment interest and is not included in the following analysis, despite
our ongoing use of the term ‘Subcontractors.’
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F.Supp. 513, 522 (E.D. Pa. 1984)) (internal quotations and
original brackets omitted). In accordance, Pennsylvania has
followed the Restatement (Second) of Contracts § 354, which
provides:
(1) If the breach consists of a failure to pay a definite sum
in money or to render a performance with fixed or
ascertainable monetary value, interest is recoverable from
the time for performance on the amount due less all
deductions to which the party in breach is entitled.
(2) In any other case, such interest may be allowed as
justice requires on the amount that would have been just
compensation had it been paid when performance was due.
Restatement (Second) of Contracts § 354. Further, the comments
to this section state, in pertinent part:
c. Where amount due is sufficiently definite. Under the rule
stated in Subsection (1), a party is not chargeable with
interest on a sum unless its amount is fixed by the contract
or he could have determined its amount with reasonable
certainty so that he could have made a proper tender.
Unless otherwise agreed, interest is always recoverable for
the non-payment of money once payment has become due
and there has been a breach. This rule applies to debts due
for money lent, goods sold or services performed, including
installments due on a construction contract. The fact that
the breach has spared some expense that is uncertain in
amount does not prevent the recovery of interest. The sum
due is sufficiently definite if it is ascertainable from the
terms of the contract, as where the contract fixes a price
per unit of performance, even though the number of units
performed must be proved and is subject to dispute. The
same is true, even if the contract does not of itself create a
money debt, if it fixes a money equivalent of the
performance. It is also true, even if the contract does not
fix a money equivalent of the performance, if such an
equivalent can be determined from established market
prices. The fact that the extent of the performance rendered
and the existence of the market price must be proved by
evidence extrinsic to the contract does not prevent the
application of these rules.
***
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d. Discretionary in other cases. Damages for breach of
contract include not only the value of the promised
performance but also compensation for consequential loss.
The amount to be awarded for such loss is often very difficult
to estimate in advance of trial and cannot be determined by
the party in breach with sufficient certainty to enable him to
make a proper tender. In such cases, the award of interest
is left to judicial discretion, under the rule stated in
Subsection (2), in the light of all the circumstances,
including any deficiencies in the performance of the injured
party and any unreasonableness in the demands made by
him.
Restatement (Second) of Contracts § 354 cmts. c, d….
This Court has expounded on Section 354 as follows:
[Section] 354 commands that pre[-]judgment interest is
awarded as a matter of right in four limited circumstances,
which all require an examination of the contract. In other
words, a court examines whether the contract was to pay,
or render a performance for, a monetary amount defined in
the contract; render a performance for a monetary amount
that can be calculated from standards set forth in the
contract; or render a performance for a monetary amount
calculated from the established market prices. The disputed
amount must be either specified in the contract or
ascertained from the terms of the contract such that at the
time of the breach, the breaching party can proffer a tender.
The disputed amount, in other words, must be liquidated at
the time of the breach as a prerequisite for pre[-]judgment
interest. In all other circumstances, including an award of
consequential damages, pre[-]judgment interest is awarded
as a matter of discretion.
Cresci, 64 A.3d at 264–65.
To illustrate, in Cresci, the appellant entered into a contract with
a construction company for it to build a home for the appellant for
$184,730. Id. at 256. Aside from the cost of building the home,
“the contract did not specify or refer to any monetary values,
established market prices, or other fixed standards regarding a
determination of mortgage expenses, legal expenses, inspection
fees, and the costs of maintaining two homes in the event of a
breach.” Id. After some time, the construction company filed a
complaint against the appellant, alleging that the appellant
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impeded the efforts of the construction company in completing the
contract, and claimed that the appellant owed $34,378.56 on the
balance of the contract. Id. at 256–57. In turn, the appellant
counterclaimed for, inter alia, breach of contract, asserting that
the construction company “had failed to complete several of the
contract’s required obligations.” Id. at 257. Following a jury trial,
the jury found that the construction company breached the
contract and awarded the appellant $66,000 in breach-of-contract
damages. Id. However, the trial court did not award the
appellant pre[-]judgment interest, determining that “the damages
involved in this matter are simply not of the kind envisioned by §
354(1) of the Restatement[,]” and that the appellant “was
adequately compensated by the jury’s verdict, and no further
pre[-]judgment interest was warranted.” Id. at 258 (citations
omitted).
On appeal, the appellant argued that “pre-judgment interest in a
breach of contract matter is a legal right.” Id. (citation omitted).
He averred that “he was forced to incur additional mortgage
expenses, legal expenses, inspection fees, and associated costs
with maintaining two properties since the home was
uninhabitable[,]” and “theorize[d] that because the sums he
claim[ed] [were] ascertainable, § 354(1) of the Restatement
(Second) of Contracts applie[d] and § 354(2) ... [did] not.” Id.
(internal quotation marks and citations omitted). This Court,
however, disagreed. Significantly, we observed that the appellant
did “not argue that the contract provided for the payment of
additional mortgage expenses, legal expenses, inspection fees,
and associated costs with maintaining two properties[,]” or that
“these sums constituted the reasonable costs of completing the
construction contract or correcting the defective work.” Id.
(internal quotation marks and citations omitted). Further, we
reasoned:
In the case before us, we examine the contract to determine
whether [the a]ppellant is entitled to pre[-]judgment
interest as of right. The contract specifically provided for
the performance of a construction of a home in exchange
for $184,730, a monetary amount defined by the contract.
Thus, $184,730 is a liquidated, ascertainable sum.
The contract, however, did not provide for a “performance”
of “mortgage expenses, legal expenses, inspection fees, and
associated costs with maintaining two properties.” The
contract also did not reference or permit a calculation of a
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monetary value for those items. [The construction
company], therefore[,] could not have tendered a proffer to
[the a]ppellant for those items, which necessarily required
a breach of contract to render a “performance” of those
items. [The construction company] is not charged with
interest as of right on the jury’s award of $66,000, because
that amount was not fixed by the construction contract and
[the construction company] could not have ascertained that
sum by construing the terms of the contract. Accordingly,
the jury’s non-specific award of $66,000 does not represent
a liquidated, ascertainable sum owed under the contract.
The jury’s award … “represents a loss incurred by [the
a]ppellant as a consequence” of [the construction
company’s] breach “of the promised performance” to
construct the home. Thus, contrary to [the a]ppellant’s
claim, an award of pre[-]judgment interest on consequential
damages is not awarded as a matter of right but is instead
left to the court’s discretion. [The a]ppellant, however,
elected not to order the trial transcript. Thus, this Court
cannot ascertain whether the trial court abused its discretion
in declining to award pre[-]judgment interest on an
unliquidated sum.
Cresci, 64 A.3d at 264–66 (internal citations, original brackets,
footnotes omitted…).
Krishnan v. Cutler Group, Inc., 171 A.3d 856, 873-75 (Pa. Super. 2017)
(all emphasis omitted; some brackets added).
In the case sub judice, Longwood points out that the trial court’s order
“awarding pre-judgment interest to the Subcontractors is silent as to the legal
basis for the award; that is, the [t]rial [c]ourt does not say whether its award
of pre-judgment interest is made as a matter of law (i.e., mandatory), or if it
is made in the court’s discretion.” Longwood’s Brief I at 42 (citation omitted).
According to Longwood, “[i]n either case, the Subcontractors’ claim for pre-
judgment interest should have failed.” Id.- 38 -
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Considering first if the Subcontractors had a right to pre-judgment
interest under Section 354(1), Longwood argues that “the relevant contract
for examination is the oral contract of guaranty purportedly made with the
Subcontractors by … Bulger on behalf of Longwood.” Id. at 44.18 It says that
“the [t]rial [c]ourt found that the contract of guaranty between Longwood and
the Subcontractors was as follows: if the Subcontractors kept working and did
not walk off the job, Longwood would pay the Subcontractors all the money
that Hunley owed them.” Id. (citation omitted). Longwood contends that
“[t]here were no other terms or details to be found in that purported contract
— no amounts, no performance standard, no mathematical or value standards
— just simply: keep working, and we will ‘make good’ on Hunley’s debt.” Id.
at 44-45 (citation omitted). Longwood maintains that such a contract was not
for a definite sum of money because, “[a]t the time of Longwood’s purported
guaranty, no one knew what the sum was, and rather such sum was only
clearly adduced for the first time at the trial itself.” Id. at 45 (citation
omitted). As a result, it insists that “Longwood could not have proffered a
tender — how would it have determined what to tender without knowing what
was claimed to be owed to the Subcontractors?” Id. According to Longwood,
“[i]n such circumstances, where a party cannot tender payment due to
uncertainty as to the amount which is alleged to be owed, the imposition of
____________________________________________
18 The Subcontractors do not dispute this assertion.
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pre[-]judgment interest is unwarranted and inequitable.” Id. at 45-46
(footnote omitted).
At the outset, Longwood has waived this argument, as it does not
appear that Longwood raised these specific objections below. Pa.R.A.P.
302(a) (“Issues not raised in the trial court are waived and cannot be raised
for the first time on appeal.”). Longwood claims that it preserved the issue of
whether it is liable to the Subcontractors for pre-judgment interest in its
Answer, New Matter, and Crossclaims to the Subcontractors’ Amended
Complaint, and in its concise statement of errors complained of on appeal.
See Longwood’s Brief I at 24. However, we see none of the above-stated
arguments against awarding the Subcontractors pre-judgment interest in
Longwood’s Answer, New Matter, and Crossclaims.19 Furthermore, regarding
Longwood’s concise statement, it is well-established that “[a]n issue raised
for the first time in a concise statement is waived.” Carlino East
____________________________________________
19Longwood also does not point us to exactly where in its Answer, New Matter,
and Cross Claims it allegedly raised these claims. See Pa.R.A.P. 2117(c)(4)
(“Where under the applicable law an issue is not reviewable on appeal unless
raised or preserved below, the statement of the case shall also specify …
[s]uch pertinent quotations of specific portions of the record, or summary
thereof, with specific reference to the places in the record where the
matter appears (e.g. ruling or exception thereto, etc.) as will show that the
question was timely and properly raised below so as to preserve the question
on appeal.”) (emphasis added); Pa.R.A.P. 2119(e) (“Where under the
applicable law an issue is not reviewable on appeal unless raised or preserved
below, the argument must set forth, in immediate connection therewith or in
a footnote thereto, either a specific cross-reference to the page or pages of
the statement of the case which set forth the information relating thereto as
required by Pa.R.A.P. 2117(c), or substantially the same information.”).
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Brandywine, L.P. v. Brandywine Village Association, 197 A.3d 1189,
1207 (Pa. Super. 2018) (citation omitted). We also reiterate that Longwood
appears to have filed no response in opposition to the Subcontractors’ motion
to mold the verdict.
Nevertheless, even if not waived, we would reject Longwood’s
argument, as we have already determined that Bulger knew how much Hunley
owed the Subcontractors and the amount he was guaranteeing. See
Longwood’s First Issue, supra. We restate that multiple Subcontractors
testified that Bulger told them that Longwood owes Hunley more money than
Hunley owes them, which means that Bulger knew how much the
Subcontractors were owed at the time he made the guaranty. Id. In addition,
Bulger acknowledged that the Subcontractors were bringing their unpaid
invoices to him:
[Longwood/PSC’s attorney:] At some point[,] did you start going
to [the S]ubcontractors directly to try and get copies of their
invoices associated with their work on unit turnovers at
Longwood?
[Bulger:] I didn’t go to them. They came to me with their invoices.
[Longwood/PSC’s attorney:] So they came to you and said what
exactly?
[Bulger:] They said we haven’t been paid, and they must have
talked amongst themselves, and they said we haven’t been paid,
and they started bringing me stacks of invoices.
[Longwood/PSC’s attorney:] Could you name some of the
contractors that presented unpaid invoices to you?
[Bulger:] Masco Construction, Riverview Flooring, Pastucha
Electric. Let’s see, I know there were a couple others. Tigano
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Painting. I can’t remember any others right now, but I think there
were others.
[Longwood/PSC’s attorney:] Were all these unpaid subcontractor
invoices related to projects that were undertaken at Hunley’s
direction?
[Bulger:] Yes.
N.T. Trial, 3/11/19, at 1363-64.
Bulger also revealed that he wanted to pay the Subcontractors directly,
which corroborates that he knew how much they were owed, but he was
ultimately discouraged from doing so:
[Sodexo’s attorney:] [Y]ou believe that [the Subcontractors]
should be paid?
[Bulger:] I do believe they should be paid.
[Sodexo’s attorney:] Because they did good work at a fair price;
right?
[Bulger:] Yes.
[Sodexo’s attorney:] Now, who stopped you from paying the
[S]ubcontractors?
[Bulger:] Who stopped me from paying the contractors? I asked
our attorneys if I could pay the contractors from the monies that
were owed to Aufman at the time and --
[The court]: Did your attorneys give you some advice or
direction?
[Bulger]: They did.
[The court]: We’re done. That is the end of that topic.
[Sodexo’s attorney:] And to be clear, besides the lawyers, I don’t
want to know, did you have discussions with any of your superiors
at Longwood that told you -- and not that they got from their
lawyers, but themselves [sic] -- to stop, to not issue checks to
any of the [S]ubcontractors?
[Bulger:] No.
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[Sodexo’s attorney:] And that was contrary to your opinion; right?
You believed that checks should be sent to the [S]ubcontractors;
right?
[Bulger:] That’s correct.
Id. at 1382-83.
Thus, even if not waived, we would determine that the record supports
that Longwood knew how much it was guaranteeing, making the guaranty
sufficiently definite for pre-judgment interest purposes. As such, we would
reject Longwood’s argument that “Longwood did not breach a contract to pay
a definite sum of money, because Longwood did not know what that sum was.”
Longwood’s Brief I at 45.20
____________________________________________
20 Longwood raises for the first time in its reply brief that the Subcontractors
failed to establish the time at which Longwood improperly withheld payment,
and therefore, the date on which pre-judgment interest should have begun to
run is unclear. It therefore argues that “pre-judgment interest cannot be
awarded, because the [c]ourt cannot properly determine when it would begin
to run.” Longwood’s Reply Brief at 21. We deem this issue waived because,
in addition to not raising this claim below, Longwood presented it for the first
time in its reply brief. Commonwealth v. Otero, 860 A.2d 1052, 1054 (Pa.
Super. 2004) (“Issues presented before this [C]ourt for the first time in a reply
brief are waived.”) (citation omitted). As our Supreme Court has explained:
The opportunity for, and the extent of, a reply brief is limited. The
Pennsylvania Rules of Appellate Procedure make clear that an
“appellant may file a brief in reply to matters raised by [the]
appellee’s brief not previously raised in appellant’s brief.”
Pa.R.A.P. 2113(a). Thus, an appellant is prohibited from raising
new issues in a reply brief. Moreover, a reply brief cannot be a
vehicle to argue issues raised but inadequately developed in
appellant’s original brief. When an appellant uses a reply brief to
raise new issues or remedy deficient discussions in an initial brief,
the appellate court may suppress the non-complying portions.
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Further, assuming arguendo that the trial court should not have
awarded the Subcontractors pre-judgment interest as a matter of right under
Section 354(1), we would still discern no abuse of discretion by the trial court
in awarding them pre-judgment interest under Section 354(2). As mentioned
supra, if interest is not awarded as a matter of right, the trial court may use
its discretion to award it “in … light of all the circumstances, including any
deficiencies in the performance of the injured party and any unreasonableness
in the demands made by him.” Restatement (Second) of Contracts § 354 cmt.
d.
Longwood argues that “the fault of nonpayment rests not with
Longwood, but rather with Hunley and its co-conspirators, and the
Subcontractors, themselves.” Longwood’s Brief I at 49 (emphasis in
original). It elaborates:
[T]he Subcontractors did not come to court with clean hands. The
Subcontractors agreed to perform work for Hunley, a general
contractor with no experience, reputation, or presence at the job
site. Those agreements were entirely oral and no pre-work
documentation, such as estimates, work orders, or work
authorizations between Hunley and the Subcontractors were
produced at trial. Longwood had no direct contract with the
Subcontractors — Longwood engaged Hunley, who then engaged
the Subcontractors under undefined, amorphous terms. The
Subcontractors, themselves, were in the best position to limit their
____________________________________________
Commonwealth v. Fahy, 737 A.2d 214, 218 n.8 (Pa. 1999) (most citations
omitted).
Here, neither Longwood in its original brief, nor the Subcontractors in
their responsive brief, raised the specific issue of when pre-judgment interest
should have begun to run in this matter. As such, this claim is also waived on
this basis.
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loss exposure: they are the ones who allowed their invoices to
Hunley to accumulate, unpaid, over the course of months. Some
of their invoices were so old that the time for filing of mechanic’s
liens had lapsed by the time they approached Bulger at the May
22, 2015 meeting. Even though the quality of the Subcontractors
work was not an issue, their business and recordkeeping practices
were, at best, unprofessional, and certainly contributed to the
confusion and chaos that concealed Hunley’s fraud. Those
practices also exposed the Subcontractors to an enormous
receivable owed by an uncreditworthy counterparty (i.e., Hunley).
As noted by the [t]rial [c]ourt, Longwood was the victim of a
fraudulent conspiracy by and among Hunley, Aufman, Sepcic,
McCollum, and Sodexo, whereby Longwood was defrauded out of
hundreds of thousands of dollars. It was Hunley and its co-
conspirators who engaged the Subcontractors to perform work at
Longwood; then, Hunley charged Longwood for the work at a
markup of nearly 130%. An integral part of that scheme was the
concealment of the amounts the Subcontractors were actually
charging Hunley for the work. This concealment persisted
throughout, and well beyond, the time that … Bulger made his
purported guaranty to the Subcontractors to pay the amounts
Hunley owed them. The actual amounts owed to the
Subcontractors were not made clear until this litigation ensued.
By that time, Hunley had already extracted over $1.9 million from
Longwood, and, despite Aufman’s promises, failed to pay the
required amounts through to the Subcontractors. Simply stated,
it is not Longwood’s fault that the Subcontractors have not yet
been paid — it is the fault of Hunley and its co-conspirators.
Longwood’s Brief I at 49-51 (internal citations omitted).
Longwood’s argument fails to persuade us that the trial court would
have abused its discretion by awarding the Subcontractors pre-judgment
interest against Longwood under Section 354(2). To start, while the
Subcontractors may have agreed to perform work for the unfamiliar Hunley,
Longwood similarly went into business with Hunley without seemingly
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conducting any research on the company.21 Moreover, unlike the
Subcontractors, Longwood even chose to continue its relationship with Hunley
despite receiving an anonymous letter in October of 2014, accusing McCollum
of having an improper interest in Hunley. Though Longwood investigated this
letter, it wrongly concluded that no improper interest existed and took no
further action, which permitted Hunley to continue conducting its fraudulent
scheme at Longwood. Furthermore, although Longwood criticizes the
Subcontractor’s recordkeeping and business practices, Longwood’s practices
seem equally as poor, given that it allowed McCollum to withhold invoices for
long periods of time and grossly overpaid for Hunley’s services over the course
of nearly a year while Hunley performed no actual work. Finally, to the extent
that Longwood argues that the Subcontractors are to blame for permitting
their invoices to go unpaid and accumulate, we point out that the
Subcontractors considered stopping work at Longwood due to this non-
payment but continued working after the meeting with Bulger in May of 2015,
where he guaranteed that Longwood would make sure that the Subcontractors
were paid. The Subcontractors trusted his word and moved forward with the
work, enabling Longwood to meet its deadlines and have residents move into
their units, and yet the Subcontractors have gone years without seeing any
payment from Longwood. Thus, given the circumstances of this case, we
____________________________________________
21 According to the trial court, Longwood first hired Hunley to assist with a
water pipe emergency in January of 2014, even though Hunley was not
incorporated at that time. TCO I at 2-3.
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would conclude that the trial court would not have abused its discretion by
awarding the Subcontractors pre-judgment interest against Longwood under
Section 354(2). No relief is due on Longwood’s second issue.
Longwood’s Third Issue
In Longwood’s third and final issue, it asserts that its obligation to pay
the Subcontractors’ judgment should be stayed pending Longwood’s receipt
of all amounts awarded to it from Hunley, Aufman, Sepcic, McCollum, and
Sodexo. To begin, it says Pennsylvania Rule of Civil Procedure 3121(b)(2)
permits a trial court to stay execution of judgment when justice so requires.
Rule 3121(b)(2) provides:
(b) Execution may be stayed by the court as to all or any part of
the property of the defendant upon its own motion or application
of any party in interest showing
…
(2) any other legal or equitable ground therefor.
Pa.R.Civ.P. 3121(b)(2).
Relying on Rule 3121(b)(2), Longwood says that “equity and the
interests of justice favor requiring the [d]efendants [(i.e., Hunley, Aufman,
Sepcic, McCollum, and Sodexo)] to first pay Longwood its gross amount due
of $1,352,769.68 (representing $933,220.71 in direct damages plus
$419,548.97 for indemnification), before Longwood has to pay the
Subcontractors and before the Subcontractors can initiate collection
proceedings against Longwood.” Longwood’s Brief I at 53 (emphasis omitted;
citation omitted). Longwood emphasizes that it is a defrauded non-profit
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organization, and that the Subcontractors are not blameless for the situation
in which they now find themselves due to their purportedly poor business
practices discussed supra. Id. at 54, 55. To Longwood, “allowing the
Subcontractors to collect from Longwood would mean that Longwood, once
again, would be making an outlay of cash, at its own expense and the expense
of its residents, falling deeper into the financial hole created by McCollum and
Hunley’s fraudulent conspiracy.” Longwood’s Reply Brief at 26-27.
In addition to the interests of justice, Longwood advances that, as a
guarantor, its obligation to pay the Subcontractors is triggered only upon
default by the principal debtors, namely, Hunley, Aufman, Sepcic, and
McCollum. Longwood’s Brief I at 56-57. See also McIntyre Square
Associates v. Evans, 827 A.2d 446, 451 n.7 (Pa. Super. 2003) (“While both
guaranty and surety agreements are agreements to be liable for the debt of
another, the principal difference is that the creditor may look to the surety for
immediate payment upon the debtor’s default, without first attempting to
collect the debt from the debtor, whereas the creditor must first seek payment
from the debtor before going after a guarantor.”) (citations omitted). As such,
it also argues that the Subcontractors “should not be permitted to attempt to
execute on their judgment against Longwood unless and until they exhaust
collection efforts against Hunley, Aufman, Sepcic, and McCollum.” Longwood’s
Brief I at 57.
“The grant of a stay of execution is within the sound discretion of the
trial court and its decision will not be disturbed absent a clear abuse of that
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discretion.” In re Upset Sale, Tax Claim Bureau of Berks County, 479
A.2d 940, 946 (Pa. 1984) (citations omitted). Here, we discern no clear abuse
of discretion by the trial court.22 Initially, with respect to Longwood’s claim
that justice requires a stay of execution, we point out that the Subcontractors
have also faced great financial difficulties as a result of not being paid for their
work in this case. See N.T. Trial, 3/13/19, at 1782 (Mascaro’s testifying that
“I had to extend my line of credit a hundred thousand dollars. I was two
weeks from being out of business”); id. at 1786 (Jerry Tigano of Tigano
Painting and Wallcovering stating that, as a result of this matter, he “ha[s] no
savings, it’s all gone. … My Visa and MasterCard [are] at the max. I’m just
surviving. It’s a shame. I’m getting upset”); id. at 1790 (Roland Pastucha of
Roland Pastucha Electric, Inc., confirming that he had to borrow additional
money to make it through this time). While Longwood again says that the
____________________________________________
22 Based on our review of the record, it does not appear that the trial court
specifically explained why it denied Longwood’s request for a stay of
execution. However, Longwood does not argue that the trial court abused its
discretion by failing to provide reasons for its decision, nor does Longwood
ask us to remand this matter for preparation of an additional Rule 1925(a)
opinion by the trial court. Further, based on our review of the record, we are
able to glean why the trial court denied Longwood’s request. See N.T. Trial,
3/13/19, at 1782, 1785-86, 1790 (trial court’s asking multiple Subcontractors
if they had to borrow additional monies to make it through this ordeal); TCMNV
at 25 (finding that “Bulger’s promises were the only reason the Subcontractors
continued working”); see also Widger, 237 A.3d at 1158 n.5 (“Although we
do not approve of or sanction the trial court’s failure to comply with its
obligations under Rule 1925(a), the lack of a Rule 1925(a) opinion does not
preclude this Court’s review of the merits of [the a]ppellant’s issues based
upon our review of the record, including the notes of testimony from [the
a]ppellant’s trial.”).
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Subcontractors’ business practices enabled the fraud to transpire, we do not
view the Subcontractors as any more at fault than Longwood for having let
the fraud occur. See Longwood’s Second Issue, supra. Further, as the
Subcontractors aptly recognize, “Bulger’s promises were the only reason [the]
Subcontractors continued working[,]” and the work they performed allowed
Longwood to continue turning over units and making money. See
Subcontractors’ Brief at 24. As such, it would be unfair to grant Longwood a
stay of execution at the Subcontractors’ expense. For these reasons, we reject
Longwood’s argument that the trial court abused its discretion in denying
Longwood’s request for a stay of execution based on the interests of justice.
Additionally, with respect to Longwood’s argument that it is a guarantor
and that the Subcontractors must first seek payment from Hunley, Aufman,
Sepcic, and McCollum, Longwood provides no authority that a trial court must
grant a stay of execution in such circumstances. See In re S.T.S., Jr., 76
A.3d 24, 42 (Pa. Super. 2013) (“[M]ere issue spotting without analysis or legal
citation to support an assertion precludes our appellate review of a matter.”)
(citations omitted). We also point out that Longwood itself recognizes that
Hunley, Aufman, Sepcic, and McCollum are unlikely to pay, see Longwood’s
Brief I at 53, and, in fact, have not paid on the unpaid invoices to date. And,
again, we emphasize that the Subcontractors continued working, despite not
getting paid, because Bulger assured them that Longwood would make good
on Hunley’s debt, which still has not happened. As the Subcontractors should
not face any more delays in receiving their money, we discern no clear abuse
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of discretion by the trial court in denying a stay of execution to Longwood on
this basis either.
Overall, none of Longwood’s issues in its appeal at 733 WDA 2021
warrant relief. We therefore affirm the judgment entered at GD 18-012048
with respect to Longwood.
Sodexo’s Appeals at 676 WDA 2021 and 677 WDA 2021
We turn next to Sodexo’s appeals at 676 WDA 2021 and 677 WDA
2021.23 In its appeals, Sodexo raises two questions for our review:
1. Whether Longwood was entitled to common-law
indemnification from Sodexo for the $419,548.97 that the [t]rial
[c]ourt found Longwood owed by contract to the [S]ubcontractors,
despite that (a) Longwood’s common-law indemnification rights
were superseded by a contractual indemnification provision, which
the [t]rial [c]ourt correctly held was not satisfied; (b) Longwood’s
liability to the [S]ubcontractors sounded in contract, not tort; and
(c) Longwood had already recovered as damages the amounts
unpaid to the [S]ubcontractors.
2. Whether Longwood was “the prevailing party” under the
Longwood Management Agreement, such that Longwood was
entitled to $1,062,053.67 in attorney[s’] fees and expenses,
despite that both Longwood and Sodexo obtained judgments in
their favor.
Sodexo’s Brief at 3-4.
Sodexo’s First Issue
In Sodexo’s first issue, it challenges the trial court’s determination that
Sodexo — along with Hunley, McCollum, Aufman, and Sepcic — must
____________________________________________
Sodexo filed a consolidated brief for its appeals at 676 WDA 2021 and 677
23
WDA 2021.
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indemnify Longwood for all sums paid by Longwood to the Subcontractors.24
In making this ruling, without providing any legal authority in support, the
trial court conveyed in its memorandum and amended non-jury verdict that:
Hunley, Aufman, Sepcic, McCollum, and Sodexo must indemnify
Longwood for any amounts it pays to the Subcontractors pursuant
to this [v]erdict because this [c]ourt grants Longwood’s
crossclaim.
Longwood would not have been liable to the Subcontractors but
for the [c]ontract of [g]uaranty made by … Bulger. The true
culprits are Hunley represented by Aufman, Sepcic, and McCollum
who conducted the fraudulent scheme and extracted the funds
from Hunley, causing it to default on its debt to the
Subcontractors. This [c]ourt has already pierced Hunley’s …
corporate veil, therefore Aufman, Sepcic, and McCollum are also
personally liable under the crossclaim. This [c]ourt has
additionally found Sodexo vicariously liable for McCollum’s
actions. Therefore, Hunley, Aufman, Sepcic, McCollum, and
Sodexo must indemnify Longwood for any amounts it pays to the
Subcontractors by virtue of this [v]erdict.
TCMNV at 25.
Later, in its Rule 1925(a) opinion, the trial court provided a legal basis
for its determination for the first time, explaining:
“The right to indemnity arises by operation of law and will be
allowed where necessary to prevent an[] unjust result.” City of
Wilkes-Barre v. Kaminski Bros., Inc., 804 A.2d 89, 92 (Pa.
Cmwlth. 2002). Indemnity is an equitable remedy available at
common law, which “shifts the entire responsibility for damages
from a party who, without any fault, has been required to pay
because of a legal relationship to the party at fault.” Id. The
Commonwealth Court clarified that indemnity[] “is a fault-shifting
____________________________________________
24 See Trial Court Judgment at GD 18-012048, 5/11/21, at 2-3 (“Hunley,
McCollum, Aufman, Sepcic, and Sodexo shall, jointly and severally, indemnify
Longwood for all sums paid by Longwood to [the Subcontractors], or any of
them, and all sums collected from Longwood by [the Subcontractors], or any
of them[.]”).
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mechanism that comes into play when a [party] held liable by
operation of law seeks to recover from a defendant whose conduct
actually caused the loss.” Id.Although this [c]ourt[] determined that Longwood was not entitled
to indemnity pursuant to the Longwood Management Agreement,
indemnity via a specific contractual obligation was only one
avenue available to Longwood.[25] Longwood may also obtain
common law indemnity as an equitable remedy in relation to
Longwood’s [c]rossclaim.
As this [c]ourt explained in its April 14, 2020 … Memorandum and
Non-Jury Verdict, absent the … breach of contract and fraud,
Longwood would not have overpaid Hunley for over $900,000.00
and Longwood would not be getting back-charged for over
$400,000.00 in Subcontractor invoices, which should have been
paid by Hunley. This is because it was Hunley, Aufman, Sepcic,
McCollum, and Sodexo who took part in a fraudulent scheme and
extracted funds from Hunley, which caused Hunley to default on
its debt to the Subcontractors. Despite the fact that Longwood
had already overpaid Hunley for the work Longwood expected to
be completed, Hunley’s default on its debt to the Subcontractors
forced Longwood to guaranty the Subcontractors payment in
order for the Subcontractors to continue working, and for
Longwood to avoid significant additional losses.
Accordingly, while this [c]ourt found that Longwood was liable to
the Subcontractors based upon Longwood’s [c]ontract of
[g]uaranty, this [c]ourt correctly determined that Sodexo,
McCollum, Hunley, Aufman, and Sepcic must indemnify Longwood
for any payment made by Longwood to the Subcontractors…. This
makes sense because the judgment on the Subcontractors’ unpaid
invoices is a debt that Longwood would not have incurred but for
Sodexo’s breach of contract and Hunley’s, Aufman’s, Sepcic’s, and
McCollum’s fraud, for which, again, Sodexo was vicariously liable.
Sodexo again complains that this [c]ourt’s determination
regarding indemnity was sua sponte action, which deprived
____________________________________________
25The Longwood Management Agreement contained an indemnity provision,
which the trial court determined did not require Sodexo to indemnify
Longwood for reasons discussed infra.
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Sodexo of its due process rights.[26] However, as mentioned
previously, there is ample precedent that permits this [c]ourt to
amend pleadings to conform with the evidence presented at trial,
at least where such an amendment will not result in unfair surprise
or prejudice. See Sutton v. Miller, 592 A.2d 83, 89 [(Pa. Super.
1991)] (holding that, in the absence of any prejudice, given the
well-settled principle that amendment is available at any stage of
the proceedings, a court may sua sponte amend the pleadings on
its own initiative).
Here, Sodexo, McCollum, Aufman, and Sepcic were, at all times,
aware of Longwood’s claim that Sodexo, McCollum, Hunley,
Aufman, and Sepcic should be the parties ultimately responsible
for paying the Subcontractors, or indemnifying Longwood after
Longwood paid the Subcontractors. Whether this occurred via
contractual indemnity or common law indemnity is of little
moment. The substance of Longwood’s claims put Sodexo on
notice with regard to both, and this [c]ourt acted appropriately in
amending said claims in the interest of justice. Thus, Sodexo’s
argument that this [c]ourt’s decision deprived Sodexo of its due
process rights is without merit.
Trial Court Opinion (“TCO II”), 8/2/21, at 38-40 (emphasis in original).
On appeal, Sodexo wages a three-prong argument as to why the trial
court’s indemnification award should be reversed. First, it advances that the
Longwood Management Agreement’s contractual indemnification clause
precluded any common-law indemnification. It asserts that our Supreme
Court “has long held that common-law indemnification is ‘not apposite where,
as here, there is a written contract setting forth the rights and duties of the
parties.’” Sodexo’s Brief at 14 (citing Eazor Exp., Inc. v. Barkley, 272 A.2d
____________________________________________26 For context, in Sodexo’s Rule 1925(b) concise statement, Sodexo
complained, inter alia, that Longwood’s crossclaim only sought contractual
indemnification from Sodexo related to the Subcontractors’ claims, and that
the trial court improperly raised the issue of whether Sodexo had a common
law duty to indemnify Longwood sua sponte.
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893, 895 (Pa. 1971)). Second, Sodexo avers that “a party can be indemnified
under the common law only for liability that sounds in tort, not contract.” Id.
at 17-18 (emphasis in original). It explains that “[t]he party seeking common-
law indemnification must be a ‘tortfeasor’ liable to a third-party ‘tort victim.’”
Id. at 18 (quoting City of Wilkes-Barre, 804 A.2d at 92 (Pa. Cmwlth. 2002)).
In contrast, Sodexo says that, here, “Longwood’s liability to the
[S]ubcontractors undoubtedly sounded in contract, not tort. The non-jury
verdict specifically states that Longwood owed these amounts to the
[S]ubcontractors for ‘Breach of Contract.’ And the opinion further clarifies
that Longwood breached an ‘enforceable contract of guaranty.’” Id. (citations
omitted). Finally, Sodexo contends that, although the two, above-stated
errors are independent and sufficient reasons to reverse the indemnity award,
the trial court’s indemnification ruling also should be reversed because it
compensated Longwood twice for the same loss. According to Sodexo, “[t]he
indemnity award was a double-recovery because the damages award (for
breach of contract and fraud) had already compensated Longwood for the
same thing: money still owed to the [S]ubcontractors.” Id. at 19 (emphasis
in original).
Common-Law Indemnification Precluded by Contract
For multiple reasons, we agree with Sodexo that the trial court erred
and/or abused its discretion in determining that Longwood was entitled to
common-law indemnification from Sodexo. To begin, in the Longwood
Management Agreement, Sodexo and Longwood specifically contemplated
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indemnification only in certain circumstances. In that contract, they agreed
that:
Except as otherwise expressly provided in this Agreement, Sodexo
and Client shall defend, Indemnify and hold each other harmless
from and against all claims, liability, loss and expenses, including
reasonable costs, collection expenses and attorneys’ fees, which
may arise because of the sole negligence, misconduct, or other
fault of the Indemnifying party, its agents or employees in the
performance of its obligations under this Agreement.
See also Longwood’s Exhibit P-2 (“Longwood Management Agreement”) at
7.27
____________________________________________
27 None of the trial exhibits were transmitted to us with the certified record.
Despite an informal inquiry with the trial court, we were unable to obtain them.
“Ultimate responsibility for a complete record rests with the party raising an
issue that requires appellate court access to record materials.” Note to
Pa.R.A.P. 1921. Generally, “[a]n appellate court may consider only the facts
which have been duly certified in the record on appeal.” Id. However,
“[p]arties may rely on the list of documents transmitted to the appellate court
and served on the parties. … If the list shows that the record transmitted is
complete, but it is not, the omission shall not be a basis for the appellate court
to find waiver.” Id. “This principle is consistent with the Supreme Court’s
determination in Commonwealth v. Brown, … 52 A.3d 1139, 1145 n.4 ([Pa.]
2012)[,] that where the accuracy of a pertinent document is undisputed, the
Court could consider that document if it was in the Reproduced Record, even
though it was not in the record that had been transmitted to the Court.” Id.Here, in the list of documents transmitted to this Court for Sodexo’s
appeals at docket numbers 676 WDA 2021 and 677 WDA 2021, ‘Exhibits’ are
listed. However, it appears that those ‘Exhibits’ are exhibits from Longwood’s
response in opposition to summary judgment, filed on December 21, 2018,
and do not include the exhibits admitted at trial. Though we usually may not
consider documents that are not in the certified record, no party disputes the
accuracy of the Longwood Management Agreement, or the report of
Longwood’s expert, which we discuss infra, that are contained in Sodexo’s
reproduced record. Therefore, we will consider both documents in our review
despite the fact that they are not included in the certified record.
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The trial court ascertained that this contractual provision did not require
Sodexo to indemnify Longwood for its losses in this case, opining:
This [c]ourt finds that Longwood’s damages fall outside the scope
of the Longwood Management Agreement’s Indemnity
[p]rovision. This provision allows recovery for losses which may
arise because of the “sole negligence, misconduct, or other fault
of the indemnifying party….” The language is unambiguous, the
word “sole” modifies all adjectives in the list. The provision is not
triggered when the misconduct involves the contribution of third
parties. In the case at hand, the misconduct involved Hunley,
Aufman, and Sepcic[,] thereby making the misconduct outside the
scope of the provision.2
2 Longwood’s arguments that such interpretation violates
public policy and that it encourages fraud are unpersuasive.
Indemnity provisions are the product of party autonomy and
may be tailored as the parties deem fit. The main purpose
of indemnity provisions is to contractually alter the default
allocation of risk under the law. If parties decide to only
alter the allocation of risk in instances involving a sole
negligence or misconduct, that is their prerogative and it
does not violate public policy. Any losses for misconduct
falling outside the scope of the provision are recoverable
through the remedies provided by the law.
TCMNV at 14 (citations omitted).
Despite the parties’ agreement for when indemnification would occur,
the trial court disregarded the contract and ordered Sodexo to indemnify
Longwood for the Subcontractors’ claims under the common law. This was
improper.
As Sodexo discerns, our Supreme Court has cautioned that, when a
contract sets forth the rights and duties of the parties, the terms of that
contract must govern. To illustrate, in Eazor, Eazor — a common carrier by
motor vehicle — leased a tractor-trailer from Barkley. Eazor, 272 A.2d at
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894. Under the lease agreement, Barkley also supplied a driver, Matil. Id.While transporting cargo owned and shipped by Continental, an accident
occurred, damaging the cargo. Id. Continental recovered a judgment against
Eazor in federal court, which Eazor paid. Id. Eazor then sought to recover
from Barkley and Matil the amount of the judgment it had paid to Continental.
Id. After Eazor sued, the trial court determined that Eazor could not recover
under a claim of either an express or implied contract of indemnity, and
granted Barkley and Matil’s preliminary objections in the nature of a demurrer.
Id. On appeal, our Supreme Court upheld the trial court’s decision. Id. In
doing so, the Court initially noted that it could not find in the lease any express
agreement by Barkley to be responsible for any damage to any cargo. Id. In
addition, the Court also rejected Eazor’s argument that the Court, in previous
cases, had recognized an implied contract of indemnity in favor of a person
who, without active fault on his part, was legally obliged to pay damages
caused by the negligence of another. Id. at 895.28 The Eazor Court deemed
such cases to be inapposite “where, as here, there is a written contract setting
forth the rights and duties of the parties. The contract must then govern. As
____________________________________________
28“Quasi-contracts, or contracts implied in law, are to be distinguished from
express contracts or contracts implied in fact.” Sevast v. Kakouras, 915
A.2d 1147, 1153 n.7 (Pa. 2007) (citation omitted). “Unlike true contracts,
quasi-contracts are not based on the apparent intention of the parties to
undertake the performances in question, nor are they promises. They are
obligations created by law for reasons of justice.” Id. (citation and bracket
omitted).
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we have already observed, the instant contract does not support [Eazor’s]
claim.” Id.Eazor is instructive to the matter at hand. The Longwood Management
Agreement specifically addresses indemnity and requires Sodexo to indemnify
Longwood in certain instances. As Eazor suggests, Longwood cannot
circumvent this provision, which it agreed to, by seeking common-law
indemnity. Instead, the contract must govern. Thus, we agree with Sodexo
that the contractual indemnification clause in the Longwood Management
Agreement precluded any common-law indemnification in this matter.29, 30
____________________________________________
29 We recognize that, in City of Wilkes-Barre, claims for both common-law
indemnification and contractual indemnification were permitted to be
advanced. However, “decisions rendered by the Commonwealth Court are not
binding on this Court.” See Beaston v. Ebersole, 986 A.2d 876, 882 (Pa.
Super. 2009) (en banc) (citation omitted). In addition, it appears that, in that
case, no one raised the argument that common-law indemnity claims are
precluded where a contract setting forth the rights and duties of the parties
exists.
30 In response to Sodexo’s argument, Longwood claims that the
indemnification award constitutes “damages flowing proximately from the
fraud committed by Sodexo[,]” and that “[a] person who makes a fraudulent
misrepresentation of material fact to another person is responsible for all
injuries resulting from that other person’s reliance on the fraudulent
misrepresentation.” Longwood’s Brief at 676 WDA 2021 and 677 WDA 2021
(“Longwood’s Brief II”) at 38 (citation omitted). Longwood goes on to
purportedly distinguish Eazor and related cases on the basis that “they stand
for the indeed well-accepted principle that when the parties’ relationship is
predominantly contractual, tort claims and associated tort theories of
damages are barred. The [t]rial [c]ourt specifically ruled that this was not the
case here.” Id. at 43; see also TCMNV at 20-21 (determining that the gist-
of-the-action doctrine did not bar Longwood’s tort claims against Sodexo).
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Longwood’s Liability to the Subcontractors Arose Through a Contract of
Guaranty
Nevertheless, even if the Longwood Management Agreement did not
preclude Longwood’s common-law indemnification claim in this matter, we
would agree with Sodexo that common-law indemnification does not apply
here because Longwood’s liability to the Subcontractors arose through a
contract of guaranty. With respect to common-law indemnity, our Supreme
Court has explained:
The right of indemnity rests upon a difference between the
primary and the secondary liability of two persons each of whom
is made responsible by the law to an injured party. It is a right
which enures to a person who, without active fault on his
own part, has been compelled, by reason of some legal
obligation, to pay damages occasioned by the initial
negligence of another, and for which he himself is only
secondarily liable. The difference between primary and
secondary liability is not based on a difference in degrees of
negligence or on any doctrine of comparative negligence, — a
doctrine which, indeed, is not recognized by the common law. It
depends on a difference in the character or kind of the wrongs
which cause the injury and in the nature of the legal obligation
owed by each of the wrongdoers to the injured person. Secondary
liability exists, for example, where there is a relation of employer
and employee, or principal and agent; if a tort is committed by
the employee or the agent recovery may be had against the
employer or the principal on the theory of respondeat superior,
but the person primarily liable is the employee or agent who
committed the tort, and the employer or principal may recover
indemnity from him for the damages which he has been obliged
to pay. Another example, and perhaps the most familiar one, is
____________________________________________
We are unpersuaded by Longwood’s argument. Even though Longwood
succeeded on its fraud claim in addition to its breach-of-contract claim against
Sodexo, that does not negate the fact that the parties had an express contract
that does not allow for indemnification in this matter.
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when a pedestrian is injured by falling in a hole in the pavement
of a street; in such a case the abutting property owner is primarily
liable because of his failure to maintain the pavement in proper
condition, but the municipality is secondarily liable because of its
having neglected to perform its duty of policing the streets and
seeing to it that the property owners keep them in repair; if
therefore the injured person chooses to bring suit against the
municipality[,] the latter can recover indemnity from the property
owner for the damages which it has been called upon to pay.
Many other illustrations might, of course, be given, as, for
example, where a person injured by the leakage of gas from a
defective pipe recovered damages from the gas company which
maintained the pipe, the gas company was held entitled to recover
indemnity from a street railway company whose negligent
excavation in the street had caused the pipe to break. So likewise,
where there was an explosion in one of the mains of a gas
company causing the collapse of a vault under the sidewalk and
injuring two persons on the pavement, and the latter brought suit
and recovered judgment against the property owner for failure to
maintain the pavement in a safe condition as required by law, the
property owner, having paid the judgment, was allowed recovery
of indemnity from the gas company which had negligently created
the condition. So, where the owners of a store property who
maintained an opening in their sidewalk were obliged to pay
damages for injuries received by a pedestrian who fell into the
opening and was injured, recovery of indemnity was allowed from
a contractor employed by them to take waste material from the
premises, and who, in the course of the work, removed the iron
grills above the opening and did not properly guard it; obviously
the contractor’s was the primary, the property owners’ the
secondary liability for the injury which occurred….
Without multiplying instances, it is clear that the right of a person
vicariously or secondarily liable for a tort to recover from one
primarily liable has been universally recognized. But the
important point to be noted in all the cases is that
secondary as distinguished from primary liability rests
upon a fault that is imputed or constructive only, being
based on some legal relation between the parties, or
arising from some positive rule of common or statutory law
or because of a failure to discover or correct a defect or
remedy a dangerous condition caused by the act of the one
primarily responsible. In the case of concurrent or joint
tortfeasors, having no legal relation to one another, each of them
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owing the same duty to the injured party, and involved in an
accident in which the injury occurs, there is complete unanimity
among the authorities everywhere that no right of indemnity
exists on behalf of either against the other; in such a case, there
is only a common liability and not a primary and secondary one,
even though one may have been very much more negligent than
the other. The universal rule is that when two or more contribute
by their wrongdoing to the injury of another, the injured party
may recover from all of them in a joint action or he may pursue
any one of them and recover from him, in which case the latter is
not entitled to indemnity from those who with him caused the
injury.
Builders Supply Co. v. McCabe, 77 A.2d 368, 370-71 (Pa. 1951) (internal
citations omitted; emphasis added).
In the case sub judice, Longwood’s liability to the Subcontractors did
not arise due to some imputed or constructive fault it had for a tort. Instead,
as Sodexo points out, Longwood’s liability to the Subcontractors sounded in
contract, as the trial court found that Longwood made an enforceable contract
of guaranty with the Subcontractors and then breached it. Sodexo’s Brief at
18. Consequently, because Longwood’s liability to the Subcontractors
stemmed from a contract of guaranty and not from some responsibility it had
under the law to the Subcontractors for their tort damages despite being itself
blameless, Longwood would not be entitled to common-law indemnification
for this reason as well.31
____________________________________________
31 Longwood argues that “the reason that Longwood defaulted on its oral
guaranty to the Subcontractors (and, ostensibly, made that guaranty in the
first place) is because of the fraud perpetrated by Hunley, Aufman, Sepcic,
McCollum, and Sodexo.” Longwood’s Brief II at 27-28. Yet, as Sodexo
observes, “it is Longwood’s liability (as Longwood is the party seeking
indemnification) that must sound in tort. And Longwood does not — and could
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Double Recovery
Finally, on top of the two above-stated, independent reasons for
reversing the trial court’s indemnification ruling, the trial court’s
indemnification award compensated Longwood twice for the same loss, as
Sodexo claims.32 In calculating Longwood’s damages, Longwood’s damages
____________________________________________
not — dispute that its liability to the [S]ubcontractors sounds in contract.”
Sodexo’s Reply Brief at 6 (citations omitted; emphasis in original). Further, if
Longwood thought that the fraud caused it to incur the debt with the
Subcontractors, it should have sought as damages in its fraud action the
amount of money it owed to the Subcontractors. As discussed infra,
Longwood did, in fact, seek such damages, and received them, in its fraud
action against Sodexo, McCollum, Hunley, Aufman, and Sepcic.
32 Sodexo did not raise this specific issue of double-recovery in its Rule
1925(b) concise statement. Nevertheless, we decline to deem it waived
because, as Sodexo observes in its reply brief, the trial court did not provide
a legal basis for why it was ordering indemnification until its Rule 1925(a)
opinion. See Sodexo’s Reply Brief at 10 n.5 (“[T]he [t]rial [c]ourt initially
offered no justification for its sua sponte indemnification ruling, and only later
explained, in its [Rule] 1925[(a)] opinion, that it was invoking ‘equitable’
authority to reach a result that it thought ‘makes sense.’ … Sodexo’s double-
recovery argument is a direct response to this late-arriving assertion of
fairness.”) (citations omitted); Sodexo’s Post-Trial Motion, 6/12/20, at 53
(indicating that the trial court’s basis for awarding indemnification in its non-
jury verdict and memorandum is unclear, and was made “without any legal or
factual citations”); see also Commonwealth v. Evans, 2021 WL 4352310,
at *3 n.4 (Pa. Super. Sept. 24, 2021) (declining to find that the appellant
waived an issue by not raising it in his Rule 1925(b) statement where the trial
court discussed the issue for the first time in its Rule 1925(a) opinion);
Pa.R.A.P. 126(b) (unpublished non-precedential memorandum of the Superior
Court filed after May 1, 2019, may be cited for persuasive value). We note
that Sodexo did complain in its post-trial motion that Longwood received a
windfall, and specifically pointed out that the trial court’s indemnification
award of $419,549.97, was already included by Longwood as part of its loss
in its damages calculation. Sodexo’s Post-Trial Motion at 2.
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expert — Brian Kassalen, CPA, CFF — first calculated the amount of revenue
recognized by Hunley (as shown on Hunley’s financial statements that were
prepared by Aufman) and paid by Longwood, which amounted to
$1,902,165.15. See Longwood’s Exhibit 17 (“Kassalen’s Expert Report”) at
8, 9.33, 34 Kassalen then analyzed Hunley’s contract costs (i.e., all direct costs,
such as material, labor, and subcontracting costs). Id. at 11.35 In
ascertaining Hunley’s total net contract costs, Kassalen did not include
$443,623.60 in amounts that Hunley did not actually pay to its subcontractors.
Id. at 8, 12.36 Thus, he determined that Hunley’s total net contract costs that
Hunley actually paid amounted to $843,293.68. Id. at 8. He then multiplied
$843,293.68 by the industry gross average profit percentage for general
contractors in the commercial sector during the relevant time period, which
____________________________________________
33 “CPA” stands for Certified Public Accountant, and “CFF” stands for “Certified
in Financial Forensics.” Kassalen’s Expert Report at 15.
34 Sodexo’s reproduced record identifies Kassalen’s expert report as
Longwood’s Exhibit 180. Based on our review of the trial transcripts, however,
we believe it was admitted at trial as Longwood’s Exhibit 17. N.T. Trial,
3/8/19, at 1065, 1075-76, 1090, 1101, 1130.
35 At trial, Kassalen elaborated on the meaning of ‘contract costs,’ saying that
“[w]ith respect to Hunley, it is all of the subcontractor costs that [it] would
have incurred for the subcontractors that bid the work for them, either drywall
work, carpet work, painting work, electrical work, whatever they be.” N.T.
Trial, 3/8/19, at 1120.
36 The $443,623.60 figure was comprised of $218,135.00 owed to Masco
Interiors, Inc.; $32,005.00 owed to Roland Pastucha Electric, Inc.;
$85,219.57 owed to Riverview Carpet & Flooring, Inc.; $86,597.00 owed to
Tigano Painting & Wallcovering; and $24,514.63 owed to Renaissance Paint &
Flooring and Bluefrog Plumbing. See Kassalen’s Expert Report at Exhibit 34.
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was 14.9%. Id. at 8, 13. By multiplying them together, Kassalen discerned
that a reasonable profit for Hunley would have been $125,650.76, and that
therefore, the amount of money that Longwood should have paid to Hunley
was $968,944.44 (in other words, the sum of $843,293.68 and $125,650.76).
Id. at 8. He then subtracted $968,944.44 from the contract income
recognized by Hunley and paid by Longwood ($1,902,165.15) to conclude that
the net loss suffered by Longwood due to overinflated payments was
$933,220.71. Id. The trial court awarded Longwood this exact amount in
damages in Longwood’s action against Sodexo, McCollum, Hunley, Aufman,
and Sepcic. See Trial Court Judgment at GD 15-015968, 5/11/21.
At trial, Kassalen confirmed that he excluded the amounts unpaid to
subcontractors from Hunley’s contract costs, testifying:
[Sodexo’s attorney:] Let’s turn back to the calculation for a couple
minutes, page 8 of your report again. Looking at this calculation,
I see that you’ve calculated a net loss suffered by Longwood of
$933,000; correct?
[Kassalen:] Yes.
[Sodexo’s attorney:] And change. If you add that back into --
looking two lines up from that, the amounts unpaid to
subcontractors of $443,000; correct?
[Kassalen:] Yes.
[Sodexo’s attorney:] Do you include those amounts unpaid to
subcontractors in the net loss suffered by Longwood?
[Kassalen:] My calculation takes A, which is the contract income
recognized by Hunley and paid by Longwood, and subtracts out
the Item C[,] which is the net amount that should have been paid
to Hunley which excludes the $443,000.
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[Sodexo’s attorney:] So you attribute damages in the amount of
unpaid subcontractor bills to Longwood’s loss?
[Kassalen:] Yes.
[Sodexo’s attorney:] So it is your position that those amounts
unpaid to subcontractors are actually amounts that should be paid
to Longwood?
[Kassalen:] The $993,000 is the amount I say should be paid to
Longwood.[37]
[Sodexo’s attorney:] And that includes that $443,000 that is owed
to the subcontractors?
[Kassalen:] Yes.
[Sodexo’s attorney:] So it is your position that under your
analysis[,] it is not the subcontractors that are owed that money,
it is Longwood?
[Kassalen:] The subcontractors haven’t been paid.
[Sodexo’s attorney:] Right, but this analysis doesn’t factor in that
that will go to the subcontractors. This analysis sends that to
Longwood; is that correct?
[Kassalen:] That is correct.
N.T. Trial, 3/8/19, at 1171-72.
In addition, Sodexo points out that:
The duplication is glaringly apparent when the two awards —
indemnity and damages — are broken down on a subcontractor-
by-subcontractor basis. A simple comparison shows that the
indemnification award and the damages award compensate
Longwood for the same [l]osses. Compare, e.g., [Trial Court
Judgment at GD 18-012048, 5/11/21, at 2-3] (requiring Sodexo
to indemnify Longwood for “$218,135.00” owed to Masco
Interiors, Inc.) with [Kassalen’s Expert Report at Exhibit 34]
(requiring Sodexo to pay damages for “$218,135.00” owed to
____________________________________________
37Based on our review of Kassalen’s expert report, we believe he meant to
say $933,220.71, or roughly $933,000. Kassalen’s Expert Report at 14 (“I
conclude that Longwood suffered a loss of $933,220.71 … as a result of the
work performed by Hunley.”).
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Masco Interiors, Inc.); and [Trial Court Judgment at GD 18-
012048, 5/11/21, at 2-3] (requiring Sodexo to indemnify
Longwood for “$86,597.00” owed to Tigano Painting and
Wallcovering) with [Kassalen’s Expert Report at Exhibit 34]
(requiring Sodexo to pay damages for “$86,597.00” owed to
Tigano Painting and Wallcovering).
This comparison also explained why the total amount awarded a
second time by indemnification ($419,548.97) is very slightly
lower than the “amount[] unpaid to subcontractors” in the
damages award ($443,623.60). The former only includes
amounts owed to those subcontractors that elected to sue
Longwood. In contrast, the damages award includes amounts
owed to all subcontractors: the entire indemnity award plus
amounts unpaid to subcontractors that elected not to sue (likely
because they did not have as much to collect). See [Kassalen’s
Expert Report at Exhibit 34] (listing invoices from subcontractors
that were not parties below).
Sodexo’s Brief at 20-21 (emphasis in original; some citations omitted).
In response, Longwood counters that allowing it to recover its principal
damages and be indemnified for the Subcontractors’ award does not result in
a double recovery. It insists that “[t]his is not a double recovery because the
acts of Sodexo and its co-conspirators are the but-for cause of Longwood[’s]
incurring the debt to the Subcontractors in the first place.” Longwood’s Brief
II at 36.
We wholly reject Longwood’s argument. The trial court’s indemnification
award results in a double recovery for Longwood. Such a result is unfair and
inequitable, and the trial court abused its discretion in ordering common-law
indemnification as an equitable remedy on this basis, too.
Therefore, for the foregoing reasons, we reverse the part of the trial
court’s May 11, 2021 judgment at GD 18-012048, requiring Sodexo to, jointly
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and severally, indemnify Longwood for all sums paid by Longwood to the
Subcontractors, or any of them, and all sums collected from Longwood by the
Subcontractors, or any of them. This award was improper.
Sodexo’s Second Issue
In Sodexo’s second issue, it argues that the trial court erred in awarding
attorneys’ fees and litigation expenses to Longwood under the Longwood
Management Agreement. Here, the relevant provision of the Longwood
Management Agreement sets forth that:
In the event that any action or proceeding is brought to enforce
any term, covenant, or condition of this Agreement, the prevailing
party shall be entitled to recover reasonable attorneys’ fees, court
costs, and related expenses.
Longwood Management Agreement at 9.
In awarding attorneys’ fees to Longwood in this litigation, and not
Sodexo, the trial court opined:
Both the Longwood Management Agreement and the PSC
Management Agreement contained a clause that provided that, in
an action to enforce a term or condition of the agreement, the
“prevailing party” shall be entitled to attorneys’ fees, costs, and
expenses. Interpreting a contract is a question of law. Profit
Wize Marketing v. Wiest, 812 A.2d 1270, 1275 (Pa. Super.
2002). Because both agreements do not define the term
“prevailing party,” this [c]ourt must look to the plain and ordinary
meaning of the term “prevail” in order to discern the contractual
intent of the parties. Id. “In common parlance, to prevail means
to gain ascendency through strength or superiority: TRIUMPH.”
Id. [(]citing Merriam Webster’s Collegiate Dictionary, 7th [e]d. at
924[)]. Black’s Law Dictionary further defines the term prevail to
mean “to obtain the relief sought in an action; to win a lawsuit.”
Id. [(]citing Black’s Law Dictionary, 7th [e]d. at 1206[)].
In this case, Longwood brought duplicative claims under both the
Longwood Management Agreement and the PSC Management
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Agreement in order to cover its bases. Although this [c]ourt
determined that Longwood only incurred damages in relation to
the Longwood Management Agreement, and that Sodexo was
entitled to damages with regard to its counterclaims for software
license fees, Sodexo is not necessarily the “prevailing party.” With
regard to Sodexo’s counterclaims for software license fees, this
[c]ourt declared that Sodexo was entitled to $4,409.65 from
Longwood and $31,666.47 from PSC. In contrast, with regard to
Longwood’s claims for breach of contract and fraud, this [c]ourt
held that Sodexo was liable to Longwood for damages in excess
of $900,000.00. Additionally, this [c]ourt determined that Sodexo
must indemnify Longwood for any payments Longwood makes to
the Subcontractors, and those payments are in excess of another
$400,000.00.[38] Given that the common definition of the term
prevail is to gain ascendency through strength or superiority, or
to triumph, this [c]ourt determined that Longwood and not
Sodexo was actually the “prevailing party” in this litigation….
TCO II at 40-41. Accordingly, the trial court awarded Longwood
$1,062,053.67 in attorneys’ fees and litigation expenses, and awarded Sodexo
no attorneys’ fees or litigation expenses.
It is well-established that “[t]he general rule within this Commonwealth
is that each side is responsible for the payment of its own costs and counsel
fees absent bad faith or vexatious conduct.” McMullen v. Kutz, 985 A.2d
769, 775 (Pa. 2009) (citation omitted). “This so-called ‘American Rule’ holds
true unless there is express statutory authorization, a clear agreement of the
parties or some other established exception.” Id. (citation and some internal
quotation marks omitted). It has been recognized that “a primary purpose of
contractual fee-shifting clauses is to discourage litigation by creating an
incentive for the parties to satisfy their contractual obligations and to think
____________________________________________
38As set forth supra, we have reversed this common-law indemnification
award.
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twice before filing long-shot claims or contesting valid claims.” See Kevin P.
Allen, CONTRACTUAL FEE-SHIFTING CLAUSES — HOW TO DETERMINE
“PREVAILING PARTY” STATUS, 74 Pa.B.A.Q. 178, 179-80 (Oct. 2003)
(footnote omitted).
As the trial court observed, “the interpretation of a contract is a question
of law[,]” and “our standard of review is plenary.” Profit Wize, 812 A.2d at
1274 (citations omitted). Further,
[w]hen interpreting the language of a contract, the intention of
the parties is a paramount consideration. In determining the
intent of the parties to a written agreement, the court looks to
what they have clearly expressed, for the law does not assume
that the language of the contract was chosen carelessly.
When interpreting agreements containing clear and unambiguous
terms, we need only examine the writing itself to give effect to
the parties’ intent. The language of a contract is unambiguous if
we can determine its meaning without any guide other than a
knowledge of the simple facts on which, from the nature of the
language in general, its meaning depends. When terms in a
contract are not defined, we must construe the words in
accordance with their natural, plain, and ordinary meaning. As
the parties have the right to make their own contract, we will not
modify the plain meaning of the words under the guise of
interpretation or give the language a construction in conflict with
the accepted meaning of the language used.
On the contrary, the terms of a contract are ambiguous if the
terms are reasonably or fairly susceptible of different
constructions and are capable of being understood in more than
one sense. Additionally, we will determine that the language is
ambiguous if the language is obscure in meaning through
indefiniteness of expression or has a double meaning. Where the
language of the contract is ambiguous, the provision is to be
construed against the drafter.
Id. at 1274-75 (cleaned up).
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Here, Sodexo contests the trial court’s award, arguing that “[n]o party
was ‘the prevailing party’ in this litigation[,]” as “[t]he verdict here was mixed
— both Longwood and Sodexo received judgments in their favor.” Sodexo’s
Brief at 22, 23 (emphasis omitted). Sodexo points out that, while Longwood
was successful on some of its affirmative claims, Sodexo prevailed on some
of its counterclaims as well as all of PSC’s claims, and successfully defended
against Longwood’s claims for contractual indemnification and punitive
damages. Id. at 24-25. Sodexo says that, generally, under the American
Rule, each side is responsible for paying its own attorneys’ fees and costs. Id.
at 23. In order to obtain fees, Sodexo asserts that “Longwood had to show
that the parties had reached a ‘clear agreement’ to set aside the American
Rule and award them ‘in the present situation[,]’” and that, in the Longwood
Management Agreement, “[t]he term ‘the prevailing party’ refers clearly to a
circumstance where only one party has won a judgment.” Id. at 22, 24 (citing
Trizechahn Gateway, LLC v. Titus, 976 A.2d 474, 483 (Pa. 2009) (framing
issue as whether there was a clear agreement of the parties to award fees in
the present situation)). Quoting Profit Wize, Sodexo advances that
“‘prevailing party’ is ‘[c]ommonly defined as a party in whose favor a judgment
is rendered, regardless of the amount of damages awarded.’” Id. at 24
(quoting Profit Wize, 812 A.2d at 1275)).39 It also states that, “importantly,
____________________________________________
39The trial court only provided Profit Wize’s definition of ‘prevail’ in its
above-stated analysis. It failed to mention that the Profit Wize Court
specifically set forth a definition for ‘prevailing party’ in its opinion.
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the phrase here is ‘the prevailing party.’ That term is singular, meaning this
provision contemplates one prevailing party.” Id. (citation omitted; emphasis
in original). As such, Sodexo claims that “this provision does not apply when
multiple parties received judgments in their favor, and it should not have been
applied here. Both Longwood and Sodexo won judgments.” Id. According
to Sodexo, “[n]either was ‘the prevailing party’ within the meaning of the
contract, and the [t]rial [c]ourt should simply have applied the default
American Rule.” Id. at 25.
In Sodexo’s argument, it underscores that it prevailed on some of its
counterclaims relating to software licensing fees and all of PSC’s claims against
it, and successfully defended against Longwood’s claims for contractual
indemnification and punitive damages. However, Sodexo fails to convince us
that any of these victories should prevent Longwood from receiving attorneys’
fees under the contract.
First, with respect to Sodexo’s counterclaims pertaining to software
licensing fees, Sodexo fails to explain why its counterclaims should not be
treated as a separate, independent ‘action or proceeding’ from Longwood’s
‘action or proceeding.’ See Longwood Management Agreement at 9 (“In the
event that any action or proceeding is brought to enforce any term,
covenant, or condition of this Agreement, the prevailing party shall be
entitled to recover reasonable attorneys’ fees, court costs, and related
expenses.”) (emphasis added). Though filed at the same docket number,
Sodexo’s counterclaims do not appear to relate to Longwood’s action in any
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way. Furthermore, our High Court has characterized counterclaims as
independent actions. See Topelski v. Universal South Side Autos, Inc.,
180 A.2d 414, 421 (Pa. 1962) (“A counterclaim is in effect a declaration by
defendant against plaintiff in the nature of an independent action deferred
until the defendant is brought into court.”) (citation and internal quotation
marks omitted; emphasis in original); see also Kaiser by Taylor v.
Monitrend Inv. Management, Inc., 672 A.2d 359, 362 (Pa. Cmwlth. 1996)
(“A counterclaim is an independent action brought by the defendant in
opposition to a plaintiff’s claim. It is wholly independent of the transaction
upon which the plaintiff’s cause of action is based, and it represents the right
of the defendant to obtain affirmative relief from the plaintiff.”) (citations
omitted).
Problematically, Sodexo’s argument focuses solely on the term ‘the
prevailing party’ in the latter part of the Longwood Management Agreement’s
attorney-fee provision, and ignores the earlier language contained in the
provision. Sodexo does not advance any argument on how we are to interpret
the terms ‘action’ or ‘proceeding,’ nor does it address whether counterclaims
constitute a separate, independent ‘action’ or ‘proceeding’ under the
agreement.40 We decline to develop this argument for it. Commonwealth
____________________________________________
40 The Longwood Management Agreement does not define ‘action’ or
‘proceeding.’ Examining their natural, plain, and ordinary meanings, an
‘action’ is commonly defined as “a civil or criminal judicial proceeding[,]”
Black’s Law Dictionary (11th ed. 2019), or “the initiating of a proceeding in a
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v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various
issues that have been preserved, it is an appellant’s duty to present
arguments that are sufficiently developed for our review. … This Court will
not act as counsel and will not develop arguments on behalf of an appellant.”)
(citations omitted). As such, we are unpersuaded that Sodexo’s prevailing on
its software licensing counterclaims prohibits Longwood from receiving
attorneys’ fees for the action it brought to enforce the Longwood Management
Agreement, on which Longwood prevailed.
Second, the fact that Sodexo purportedly prevailed on all of PSC’s claims
against it also does not warrant reversing the trial court’s fee award. To begin,
PSC’s claims would seemingly implicate the attorney-fee provision under the
PSC Management Agreement, not the Longwood Management Agreement.
Setting that aside, though, the trial court recognized that “Longwood brought
duplicative claims under both the Longwood Management Agreement and
the PSC Management Agreement in order to cover its bases.” TCO II at 40
____________________________________________
court of justice by which one demands or enforces one’s right[.]” See Action,
Merriam-Webster, https://www.merriam-webster.com/dictionary/action (last
visited Mar. 2, 2023). ‘Proceeding’ is commonly defined as “legal action[,]”
see Proceeding, Merriam-Webster, https://www.merriam-
webster.com/dictionary/proceeding (last visited Mar. 2, 2023), or
1. The regular and orderly progression of a lawsuit, including all
acts and events between the time of commencement and the
entry of judgment. 2. Any procedural means for seeking redress
from a tribunal or agency. 3. An act or step that is part of a larger
action. 4. The business conducted by a court or other official
body; hearing.
Black’s Law Dictionary (11th ed. 2019).
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(emphasis added). See also TCMNV at 1-2 (explaining that McCollum “was
an employee of Sodexo during all times material to this litigation and was
assigned by Sodexo to perform its obligations at both PSC and Longwood”)
(emphasis added). Longwood elaborates,
both PSC and Longwood had facilities management agreements
with Sodexo. Longwood and PSC are affiliated entities that share
a number of resources, including executive staff. Because of the
incompetent manner in which Sodexo serviced those contracts, …
McCollum … came to be Sodexo’s on-site manager at both
campuses. In other words, McCollum was Sodexo’s on-site
representative for both the Longwood Management Agreement
and the PSC Management Agreement. This was despite the fact
that each contract required Sodexo to provide a dedicated
manager to each campus.
Sodexo’s conflation of these two agreements and its incompetent
performance forced PSC and Longwood to each bring their own
claims for fraud and breach of contract; that is, to plead that either
Longwood or PSC, but not both, were entitled to damages for
fraud and breach of contract. Ostensibly, had only one entity filed
suit, Sodexo would have argued that such party lacked standing.
Had only PSC sued Sodexo, Sodexo would have argued that it was
Longwood that had sustained the complained-of damages arising
out of the Longwood Management Agreement. Conversely, had
only Longwood sued Sodexo, Sodexo would have argued that
McCollum was furnished under the PSC Management Agreement
and kept his office at the PSC campus, and therefore PSC was the
proper plaintiff. As such, in choosing the proper entity to bring its
claims[,] Longwood and PSC were stuck in the proverbial “catch-
22.” The only way they could “cover their bases,” as the [t]rial
[c]ourt explained, was to bring duplicative claims on behalf of both
entities. This is exactly what Longwood and PSC did.
Longwood’s Brief II at 63-64 (footnote and internal citations omitted).
Because Sodexo assigned McCollum to perform its obligations at both
Longwood and PSC, and given the understandable confusion as to which entity
was the proper plaintiff, we do not view Sodexo’s purported success on PSC’s
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claims as defeating Longwood’s entitlement to attorneys’ fees under the
Longwood Management Agreement.
Finally, Sodexo contends that it prevailed on Longwood’s claims for
contractual indemnification and punitive damages, such that Longwood should
not be considered the prevailing party. We disagree. As the Profit Wize
Court observed,
“prevailing party,” is commonly defined as “a party in whose favor
a judgment is rendered, regardless of the amount of damages
awarded.” While this definition encompasses those situations
where a party receives less relief than was sought or even nominal
relief, its application is still limited to those circumstances where
the fact finder declares a winner and the court enters judgment in
that party’s favor.
Profit Wize, 812 A.2d at 1275-76 (internal citations omitted).
Here, while Longwood did not receive contractual indemnification or
punitive damages, the trial court nevertheless directed the Department of
Court Records to enter judgment on Longwood’s action to enforce the
Longwood Management Agreement “in favor of Longwood and against all
Defendants, jointly and severally, in the amount of $933,220.71.” See Trial
Court Judgment at GD 15-015968, 5/11/21, at 2. Pursuant to Profit Wize,
the fact that Longwood received less relief than it initially sought does not bar
it from being the prevailing party. Moreover, with respect to Longwood’s
action, the trial court declared a winner and entered judgment in Longwood’s
favor.
Based on the foregoing, we deem meritless Sodexo’s argument that
Longwood should not receive attorneys’ fees because both Longwood and
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Sodexo were prevailing parties in Longwood’s action to enforce the Longwood
Management Agreement.41 Accordingly, we affirm the part of the May 11,
2021 judgment entered at GD 15-015968 that awards $1,062,053.67 in
attorneys’ fees and litigation expenses to Longwood.
To review, regarding Sodexo’s appeals at 676 WDA 2021 and 677 WDA
2021, we reverse the trial court’s May 11, 2021 judgment at GD 18-012048,
to the extent it required Sodexo to, jointly and severally, indemnify Longwood
for all sums paid by Longwood to the Subcontractors, or any of them, and all
sums collected from Longwood by the Subcontractors, or any of them. In
addition, we affirm the May 11, 2021 judgment entered at GD 15-015968,
insofar as it awards $1,062,053.67 in attorneys’ fees and litigation expenses
to Longwood.
Hunley’s Appeal at 670 WDA 2021
Next, we address Hunley’s appeal at 670 WDA 2021. In its appeal,
Hunley raises three issues for our review:
1. Do the record facts and law support the trial court’s finding that
[Hunley] must indemnify Longwood in the amount Longwood
____________________________________________
41 Though Sodexo alleges various errors in the trial court’s calculation of
Longwood’s attorneys’ fees, we do not address those claims further, as Sodexo
did not specifically raise that issue in its Statement of the Questions Involved.
See 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.”).
Similarly, we do not address whether Sodexo should receive attorneys’ fees
for its successful counterclaims, as Sodexo did not seek to recover attorneys’
fees on appeal, but instead argued that neither Sodexo nor Longwood should
receive them. Id.- 77 -
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owes [the] Subcontractors for work Longwood received from
those Subcontractors?
2. Did the trial court err both factually and legally by denying
[Hunley’s] crossclaim, thus failing to find that Longwood must
contribute or indemnify [Hunley] for amounts [Hunley] may owe
[the] Subcontractors?
3. Did Longwood waive any claim for indemnity on its crossclaim
and likewise waive any purported defense to [Hunley’s]
crossclaims?
Hunley’s Brief at 7.42
Hunley’s First Issue
In Hunley’s first issue, it challenges the trial court’s determination that
“Hunley, McCollum, Aufman, Sepcic, and Sodexo shall, jointly and severally,
indemnify Longwood for all sums paid by Longwood to [the Subcontractors],
or any of them, and all sums collected from Longwood by [the
Subcontractors], or any of them[.]” See Trial Court Judgment at GD 18-
____________________________________________
42 Longwood urges us to quash Hunley’s appeal because of the vagueness and
breadth of Hunley’s claims, and its disregard for our Rules of Appellate
Procedure. See Longwood’s Brief at 670 WDA 2021 (“Longwood’s Brief III”)
at 27-34. While we reprimand Hunley for its lack of specificity and non-
compliance with our Rules of Appellate Procedure — particularly with respect
to its incomplete reproduced record that primarily contains only its own trial
exhibits — we decline to quash its appeal, as we can adequately identify the
issues raised by Hunley. See Grimm v. Universal Medical Services, Inc.,
156 A.3d 1282, 1284 n.2 (Pa. Super. 2017) (declining to quash appeal
because the appellants’ “failure to file a reproduced record does not ‘preclude
our ability to properly evaluate and address the substantive arguments
advanced by the parties’”) (citation omitted); Kern v. Kern, 892 A.2d 1, 6
(Pa. Super. 2005) (“[A]s a practical matter, this Court quashes appeals for
failure to conform to the Rules of Appellate Procedure only where the failure
to conform to the Rules results in the inability of this Court to discern the
issues argued on appeal. [The a]ppellants’ failure to conform to the Rules of
Appellate procedure regarding [their] brief cannot be condoned, but [the
a]ppellants’ failure has not hampered our review.”) (citation omitted).
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012048, 5/11/21, at 2-3. Hunley argues that “[t]he record does not support
any finding that there was fraud or conspiracy by [Hunley] such that [Hunley]
should have to indemnify Longwood for the amounts Longwood rightly owes
[the] Subcontractors.” Hunley’s Brief at 22. In addition, Hunley asserts that
“indemnification does not lie where Longwood has its own breach-of-contract
liability to [the] Subcontractors.” Id.Initially, this Court has already affirmed the trial court’s May 11, 2021
judgment at GD 15-015968, to the extent that it found Hunley liable for fraud
and conspiracy. See Zadok Grahm Hunly Corp. v. Presbyterian
SeniorCare, 2023 WL 2232655 (Pa. Super. Feb. 27, 2023) (unpublished
memorandum). Therefore, we reject Hunley’s argument that “[b]ecause the
record does not show Longwood was defrauded by [Hunley] and likewise does
not show that [Hunley] engaged in some conspiracy to commit fraud,
Longwood had no record basis to claim that [Hunley] should indemnify
Longwood.” Hunley’s Brief at 30.
However, we deem meritorious Hunley’s other argument that common-
law indemnification is inappropriate here because Longwood has its own
breach-of-contract liability to the Subcontractors. As we discussed in
Sodexo’s First Issue supra, Longwood’s liability to the Subcontractors
stemmed from a contract of guaranty and not from some responsibility it had
under the law to the Subcontractors for their tort damages despite being itself
blameless. See also Hunley’s Brief at 30. As such, common-law
indemnification is inappropriate under the circumstances. We also reiterate
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that Longwood’s indemnification award results in Longwood’s receiving a
double recovery, which is unfair and inequitable. See Sodexo’s First Issue,
supra.
For these reasons, we reverse the part of the trial court’s May 11, 2021
judgment at GD 18-012048, requiring Hunley to, jointly and severally,
indemnify Longwood for all sums paid by Longwood to the Subcontractors, or
any of them, and all sums collected from Longwood by the Subcontractors, or
any of them. Because we reverse indemnification as to Hunley, we also
reverse the part of the trial court’s judgment at GD 18-012048, requiring
McCollum, Aufman, and Sepcic to indemnify Longwood, as indemnification was
imposed on them by virtue of piercing Hunley’s corporate veil. See TCMNV at
25 (“The true culprits are Hunley represented by Aufman, Sepcic, and
McCollum who conducted the fraudulent scheme and extracted the funds from
Hunley, causing it to default on its debt to the Subcontractors. This Court has
already pierced Hunley’s … corporate veil, therefore Aufman, Sepcic, and
McCollum are also personally liable under the crossclaim.”); id. at 23
(“McCollum, Aufman, and Sepcic are personally liable for Hunley’s debts.”);
Trial Court Opinion (“TCO III”), 4/18/22, at 23 (“[T]his [c]ourt properly
pierced the corporate veil and correspondingly determined that McCollum,
Aufman, and Sepcic are personally liable for Hunl[e]y’s debts.”); see also
Wicks v. Milzoco Builders, Inc., 470 A.2d 86, 89-90 (Pa. 1983) (“Where
the court pierces the corporate veil, the owner is liable because the
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corporation is not a bona fide independent entity; therefore, its acts are truly
his.”) (footnote omitted).
Hunley’s Second Issue
In Hunley’s second issue, it argues that the trial court erred “both
factually and legally by denying [Hunley’s] crossclaim, thus failing to find that
Longwood must contribute or indemnify [Hunley] for amounts [Hunley] may
owe [the] Subcontractors.” Hunley’s Brief at 31. It avers that “[t]he amounts
owed to [the] Subcontractors, including any amounts which [Hunley] might
owe, are a combination of Longwood’s own direct contracts with [the]
Subcontractors and amounts Longwood contractually agreed to pay [Hunley]
with the understanding that [Hunley] would pay [the] Subcontractors.” Id.Furthermore, Hunley says that, even if such contracts did not exist, Longwood
has been unjustly enriched by Hunley’s work, such that indemnification is
warranted. Id. at 32.
No relief is due. With respect to Hunley’s argument that Longwood had
direct contracts with the Subcontractors, the trial court found that: (1) the
Subcontractors’ unpaid invoices accrued before Hunley was terminated; (2)
not one of those invoices were directed at Longwood; (3) each of the
Subcontractors testified that all of their work relative to this litigation was
done as a subcontractor for Hunley; (4) Aufman’s testimony, and Hunley’s
bookkeeping, are not credible; and (5) Longwood’s role regarding the unpaid
invoices was only in the form of a verbal contract of guaranty. See TCMNV at
24. The record supports these findings, and we decline to disturb them.
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Woullard, supra (“Our standard of review in non-jury trials is to assess
whether the findings of facts by the trial court are supported by the record
and whether the trial court erred in applying the law.”) (citations omitted);
see also N.T. Trial, 3/11/19, at 1364 (Bulger’s confirming that the unpaid
Subcontractors’ invoices related to projects that were undertaken at Hunley’s
direction, and that he did not ever personally direct the Subcontractors to
perform work and then bill the work to Hunley); N.T., 3/13/19, at 1760
(Bierly’s stating that all of Riverview Carpet and Flooring, Inc.’s unpaid
invoices are directed at Hunley); id. at 1761 (Bierly’s testifying that Riverview
Carpet and Flooring, Inc., was the subcontractor of Hunley on all of the at-
issue jobs); id. at 1778 (Mascaro’s testifying that all of the unpaid invoices
from Masco Interiors, Inc., in this litigation were directed to Hunley); id. at
1780 (Mascaro’s stating that he considered Masco Interiors, Inc., to be a
subcontractor of Hunley in this matter); id. at 1784 (Tigano relaying that all
of Tigano Painting and Wallcovering’s unpaid invoices were directed to
Hunley); id. at 1788 (Pastucha’s stating that all of the unpaid invoices from
his business were directed to Hunley).
Further, Hunley’s claim that Longwood failed to pay Hunley in
accordance with their contractual agreements also lacks merit. This Court has
already affirmed the trial court’s determination that Longwood did not breach
its contracts with Hunley. See Zadok Grahm Hunly Corp., 2023 WL
2232655, at *19. There, we explained:
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[T]his Court has recognized that “[t]he general rule, of course, is
that fraud in the inducement renders a contract voidable at the
option of the defrauded party.” Stringert & Bowers, Inc., 345
A.2d [194, 196 (Pa. Super. 2005)] (citations omitted). See also
Eigen v. Textron Lycoming Reciprocating Engine Div., 874
A.2d 1179, 1184 (Pa. Super. 2005) (“Our Supreme Court and this
Court have consistently held that the victim of fraud in the
inducement has two options: (1) rescind the contract, or (2) affirm
the contract and sue for damages.”) (citations omitted)). We have
already upheld the trial court’s determination that Hunl[e]y
committed fraud. Thus, we agree with the trial court that
Longwood could void its agreements with Hunl[e]y, and therefore,
did not breach any contract.18
18 Even if there was an enforceable contract, Longwood
rightly points out that “Hunl[e]y did not perform any actual
‘general contracting services’ — it just used McCollum[, a
Sodexo employee,] to distribute work to subcontractors and
then sent Longwood over-inflated invoices. Hunl[e]y did no
work and as such could not have triggered any real or
imagined contractual obligation for Longwood to pay
money.”
Id. (citation and original brackets omitted).
Finally, to the extent Hunley advances that Longwood was unjustly
enriched by Hunley’s work, and therefore Longwood should have to indemnify
Hunley, no relief is due on this basis either. “Unjust enrichment is an equitable
remedy, defined as ‘the retention of a benefit conferred by another, without
offering compensation, in circumstances where compensation is reasonably
expected, and for which the beneficiary must make restitution.’”
Commonwealth by Shapiro v. Golden Gate Nat’l Senior Care LLC, 194
A.3d 1010, 1034 (Pa. 2018) (citation omitted). Here, Hunley did not confer
any benefit upon Longwood, as it performed no actual work. In addition, we
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agree with the trial court’s observation that Hunley’s own actions bar it from
receiving equitable relief:
Hunley’s unjust enrichment claims are dismissed because Hunley
comes with unclean hands. A court may deprive a party of
equitable relief where, to the detriment of the other party, the
party applying for such relief is guilty of bad conduct relating to
the matter at issue. In re Estate of Aiello, 993 A.2d 283, 288
(Pa. Super. … 2010). This [c]ourt finds that Hunley’s fraud
precludes equitable relief.
TCMNV at 27.
As we reject Hunley’s theories that the money Hunley owes to the
Subcontractors is due to Longwood’s contractual breaches, and/or that
Longwood has been unjustly enriched by Hunley’s work, we conclude that the
trial court did not err in denying Hunley’s crossclaim for indemnification.
Accordingly, we affirm this aspect of the trial court’s May 11, 2021 judgment
entered at GD 18-012048.
Hunley’s Third Issue
In Hunley’s third issue, it contends that Longwood waived any purported
defense to Hunley’s crossclaim.43 Hunley insists that, “[b]eginning no later
than October 2014 and continuing thereafter, Longwood came to possess
information that McCollum and [Hunley] had a preexisting association.”
____________________________________________
43 Hunley likewise argues that Longwood waived its claim for indemnity
against Hunley. However, we have already discerned that Hunley does not
have to indemnify Longwood, so we need not address this aspect of Hunley’s
argument further. See Hunley’s First Issue, supra.
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Hunley’s Brief at 34.44 According to Hunley, “[w]hile having such information
and while also having come to believe that [Hunley’s] profits were too high,
Longwood scrutinized certain invoices in 2015 and decided to accept and pay
those invoices regardless of its belief about [Hunley’s] profits and the
preexisting associations of Aufman, Sepcic, McCollum, and [Hunley].” Id. It
argues that “Longwood’s actions of continuing to use [Hunley’s] services and
continuing to pay [Hunley] after knowing of the parties’ associations and after
believing [Hunley] was overcharging are inconsistent with Longwood’s later
affirmative and defensive assertions that the [Hunley]-Longwood contracts
and [Hunley] invoices were invalid because of fraud, conspiracy, or any other
wrong.” Id. at 35. It says that, “[i]f Longwood believed it had an excuse or
right … that entitled Longwood to defend against [Hunley’s] claims for
contribution or indemnification by Longwood, Longwood waived any such
excuse or right because Longwood itself continued the contracts after knowing
of the purported excuse/right to do otherwise.” Id. at 35-36.
No relief is warranted. We have already rejected this waiver argument.
See Zadok Grahm Hunly Corp., 2023 WL 2232655, at *13-*14. In our
previous memorandum, we opined:
A waiver in law is the act of intentionally relinquishing or
abandoning some known right, claim or privilege. To
constitute a waiver of legal right, there must be a clear,
unequivocal and decisive act of the party with knowledge of
____________________________________________
44 As mentioned earlier, in October of 2014, Longwood received an anonymous
letter that accused McCollum of having an improper interest in Hunley. TCO
I at 4.
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such right and an evident purpose to surrender it[.] Waiver
is essentially a matter of intention. It may be expressed or
implied. In the absence of an express agreement[,] a
waiver will not be presumed or implied contrary to the
intention of the party whose rights would be injuriously
affected thereby, unless by his conduct the opposite party
has been misled, to his prejudice, into the honest belief that
such waiver was intended or consented to. In short, the
doctrine of implied waiver in Pennsylvania applies only to
situations involving circumstances equivalent to an
estoppel, and the person claiming the waiver to prevail must
show that he was misled and prejudiced thereby[.]
Brown v. City of Pittsburgh, 186 A.2d 399, 401 (Pa. 1962)
(cleaned up; footnotes omitted).
In response to Hunl[e]y’s waiver argument, Longwood
persuasively counters:
The trial court correctly found that the anonymous letter
was not sufficient to put Longwood on notice of the fraud
that was taking place at the hands of Hunl[e]y and its co-
conspirators. Without such knowledge, there can be no
waiver. Longwood did not even know it was being
defrauded, so it could not possibly have waived any rights,
claims, or defenses with respect thereto.
The reason why Longwood continued to use Hunl[e]y after
receipt of the anonymous letter was because it had
investigated the allegations in the letter at the time and
determined them (albeit erroneously) to be unfounded.
Only after years of litigation and extensive forensic
investigation did Longwood become aware of the nature and
extent of the fraudulent conspiracy that had victimized it.
Again, the trial court agreed that Longwood went above and
beyond what the law required in order to continue justifiably
relying on Hunl[e]y, Aufman, Sepcic, and McCollum’s
misrepresentations.
Similarly, the reason why Longwood continued to pay
Hunl[e]y … was because Longwood reasonably believed at
the time (again, erroneously) that it had a contractual
obligation to do so. At the time, while Longwood may have
been “suspicious” that Hunl[e]y was overcharging it, the
scope and scale of Hunl[e]y’s fraud remained concealed. …
Bulger, who had replaced McCollum as the head of the unit
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turnovers at Longwood, was new to the job and faced with
angry, unpaid Subcontractors threatening work stoppages,
Aufman’s threats of litigation and continued withholding of
support for Hunley’s over-inflated invoices, and residents
ready to move into incomplete units. Under those
circumstances, Bulger and Longwood rightly believed that
they had no choice but to pay Hunl[e]y. When they did,
Hunl[e]y persisted in its failure to pay the Subcontractors.
Under these circumstances, no waiver of any kind can be
imputed to Longwood.
Longwood’s Brief at 672 WDA 2021 at 50-52 (internal citations
omitted).
As Longwood aptly points out, because it did not have full
knowledge of Hunl[e]y’s fraud at the time it received the
anonymous letter and when it made payments to Hunl[e]y in June
and July of 2015, it could not act to intentionally relinquish or
abandon its claims against Hunl[e]y. Put simply, Longwood did
not realize at the time the existence and extent of Hunl[e]y’s
fraud, such that it could have knowingly waived its claims against
Hunl[e]y. See N.T. Trial, 3/11/19, at 1371-73 ( … Bulger’s
testifying that, as of June 18, 2015, he knew Hunl[e]y
overcharged on some things, but did not know the size and scope
of the overcharges); see also id. at 1402-03 (similar); N.T. Trial,
3/6/19, at 670 (PSC’s Chief Financial Officer’s testifying that, in
May of 2015, Longwood did not know what Hunl[e]y’s overcharge
was, but that … Bulger surmised that “there [were] costs
exceeding what he would normally receive for the scope of work
being completed”). Further, with respect to the June and July of
2015 payments, there was testimony at trial that Longwood made
these payments to Hunl[e]y so that Hunl[e]y would pay the
Subcontractors. See N.T. Trial, 3/6/19, at 663-65, 671; N.T.
Trial, 3/11/19, at 1351, 1373-74, 1394-95. Thus, even if
Longwood fully knew of its claims against Hunl[e]y at that point
(which it did not), we do not view Longwood’s paying Hunl[e]y so
that Hunl[e]y could pay the Subcontractors as a ‘clear,
unequivocal and decisive act’ that Longwood wished to surrender
its rights. Finally, we are unconvinced that Hunl[e]y was misled
by any of Longwood’s actions to its prejudice. Therefore, this
claim likewise lacks merit.
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Id. (some citations and original brackets omitted). As such, there is no reason
to disturb the trial court’s May 11, 2021 judgment entered at GD 18-012048
on this basis.
In sum, with respect to Hunley’s appeal at 670 WDA 2021, we reverse
the trial court’s May 11, 2021 judgment entered at GD 18-012048, to the
extent it required Hunley, McCollum, Sepcic, and Aufman to, jointly and
severally, indemnify Longwood for all sums paid by Longwood to the
Subcontractors, or any of them, and all sums collected from Longwood by the
Subcontractors, or any of them. We affirm the judgment in all other respects
as to Hunley.
Aufman’s Appeal at 674 WDA 2021
Finally, we reach Aufman’s appeal at 674 WDA 2021. In his appeal,
Aufman raises the following questions for our consideration:
1. Do the record facts and law support the trial court’s decision to
disregard [Hunley’s] corporate form and to impose direct and/or
indemnification liability on … Aufman?
2. Do the record facts and law support the trial court’s decision to
impose direct and/or indemnification liability on Aufman on any
grounds aside from disregarding [Hunley’s] corporate form?
3. Did Longwood waive its crossclaim against Aufman?
Aufman’s Brief at 7.45
Aufman’s First Issue
____________________________________________
45 Longwood similarly asks us to quash Aufman’s appeal for vagueness,
insufficient specificity, and failure to follow our Rules of Appellate Procedure.
Because we are able to discern Aufman’s issues, we again decline to do so,
but nevertheless admonish him for his lack of compliance, particularly with
respect to his inadequate reproduced record.
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In Aufman’s first issue, he claims that the record facts and law do not
support the trial court’s decision to disregard Hunley’s corporate form, and to
impose direct liability on Aufman for breach of contract. Aufman’s Brief at 20;
see also Trial Court Judgment at GD 18-012048, 5/11/21 (finding Aufman
liable for breach of contract to the Subcontractors).46 We disagree. As this
Court recognized in our previous writing related to this matter:
There is a strong presumption in Pennsylvania against
piercing the corporate veil. Any court must start from the
general rule that the corporate entity should be recognized
and upheld, unless specific, unusual circumstances call for
an exception.
Piercing the corporate veil is … a matter of equity,
allowing a court to disregard the corporate form and
assess one corporation’s liability against another. The
corporate veil will be pierced and the corporate form
disregarded whenever justice or public policy demand,
such as when the corporate form has been used to
defeat public convenience, justify wrong, protect
fraud, or defend crime.
The corporate form thus may be disregarded where rights
of innocent parties are not prejudiced nor the theory of the
corporate entity rendered useless.
In Ashley v. Ashley, 393 A.2d 637, 641 (Pa. 1978), we
held that the corporate form may be disregarded “whenever
one in control of a corporation uses that control, or uses the
corporate assets, to further his or her own personal
interests.” And in Lumax Indus., Inc. v. Aultman, 669
A.2d 893, 895 (Pa. 1995), we cited favorably the
Commonwealth Court’s enumeration of factors relevant to
____________________________________________
46 Aufman also challenges the trial court’s decision to disregard Hunley’s
corporate form and impose indemnification liability on him. However, because
we have already reversed the trial court’s judgment requiring Aufman to
indemnify Longwood, we need not address this part of Aufman’s argument.
See Hunley’s First Issue, supra.
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the piercing inquiry: “undercapitalization, failure to adhere
to corporate formalities, substantial intermingling of
corporate and personal affairs, and use of the corporate
form to perpetrate a fraud.”
Mortimer v. McCool, 255 A.3d 261, 268 (Pa. 2021) (footnotes,
brackets, and most quotation marks omitted).
In the case sub judice, the trial court discerned that piercing the
corporate veil of Hunl[e]y was warranted, relaying:
This court finds that justice and public policy demand
piercing Hunl[e]y’s veil. The circumstances of this case
show that neither innocent parties will be prejudiced nor is
the theory of corporate entity undermined. Further, the
factors of this case are sufficient to defeat the presumption
against veil piercing.
Hunl[e]y was formed solely as part of the fraudulent scheme
for McCollum to extract money from Longwood. Hunl[e]y
was hired as a general contractor while McCollum, who was
already receiving payment from Sodexo for his services to
Longwood, performed all the tasks associated with that role.
Hunl[e]y did no actual work whatsoever. Further, Hunl[e]y
was mainly financed through a loan from … McCollum’s
company, W.F. Cody Corp. Longwood was Hunl[e]y’s sole
client and source of revenue. Most of that revenue funneled
back to … McCollum. Now Hunl[e]y is insolvent and has no
way of paying its creditors or satisfying any judgment
against it. It is clear that Aufman and Sepcic never had an
intent to use Hunl[e]y for a legitimate business end.
Hunl[e]y began operating before it was even incorporated.
Further, there was substantial intermingling of corporate
and personal affairs. The company was operated out of
Aufman’s accounting office and shared staff with Aufman’s
other business enterprises. Those staff members were not
compensated by Hunl[e]y, but instead by Aufman’s
accounting firm. Hunl[e]y never had actual employees
other than … McCollum’s son, an unpaid intern that wrote
checks to his own company in the amount of $975,000.00.
It is inequitable and unjust for McCollum, Aufman, and
Sepcic to make use of the corporate form to escape their
liability for their participation in fraud. This court finds that
piercing Hunl[e]y’s veil would not undermine the theory of
the corporate form. To the contrary, this court can find no
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legitimate business end that would justify preserving
Hunl[e]y’s corporate form. No innocent parties will be
harmed by piercing Hunl[e]y’s veil, but the inverse is true;
innocent parties will be harmed if there was no way to
recover damages from Aufman and Sepcic for their
contribution to the fraudulent scheme. Therefore, this court
finds that factors weighing in favor of piercing the corporate
veil are sufficient to overcome the presumption against veil
piercing.
TCMNV at 22-23 (internal citations omitted).
We agree with the trial court’s above-stated analysis. Aufman,
Sepcic, and McCollum created and used Hunl[e]y to perpetrate a
fraud. Given the circumstances of this case, justice demands
piercing Hunl[e]y’s veil.
Zadok Grahm Hunly Corp., 2023 WL 2232655, at *16-*17 (original brackets
omitted). Thus, Aufman’s first issue is meritless.
Aufman’s Second Issue
In Aufman’s second issue, Aufman confusingly claims that — on top of
the fact that the trial court should not have disregarded Hunley’s corporate
form — the record facts and law do not support the trial court’s decision to
impose direct liability on Aufman for breach of contract. Aufman’s Brief at
24.47 He says that he “did not have a contract with [the] Subcontractors or
Longwood[,]” and therefore, “could not have breached any such contract.”
Id. In addition, he argues that the Subcontractors withdrew their breach-of-
contract claim against him and, as a result, any judgment holding him directly
____________________________________________
47 Again, Aufman also challenges the trial court’s decision to impose
indemnification liability on him. However, we have already reversed that part
of the trial court’s judgment, and therefore, do not address indemnification
further here. See Hunley’s First Issue, supra.
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liable to the Subcontractors must be vacated for lack of jurisdiction. Id. at
25.
Initially, it does not matter that Aufman had no personal contracts with
the Subcontractors. Hunley had contracts with the Subcontractors, and the
trial court properly pierced Hunley’s corporate veil to hold Aufman personally
liable for breaching them. See Aufman’s First Issue, supra.
Further, we reject Aufman’s assertion that the Subcontractors withdrew
their breach-of-contract claims against him, such that the trial court did not
have jurisdiction to enter judgment against him. Problematically, in the
argument section of his brief, Aufman does not point us to where in the record
this withdrawal purportedly took place. Notwithstanding, our own review of
the record shows that the following occurred at trial:
[Sodexo’s attorney]: Your Honor, we have an administrative
matter. This was discussed at the pretrial conference, but to be
sure the record is clear, [the Subcontractors] are not suing a
breach of contract claim [sic] against Sodexo. I wanted to make
sure it is clear on the record.
[Subcontractors’ attorney]: Yes, we had no contract with Sodexo.
[McCollum’s attorney]: [They] also withdrew [their] claim against
… McCollum individually by stipulation at a pretrial conference.
[Subcontractors’ attorney]: Yes.
[Hunley’s attorney]: I think you did so against Mr. Aufman as well?
[Subcontractors’ attorney]: Except for the breach of contract.
You’re right, but Hunley we didn’t.
[Hunley’s attorney]: Hunley is in, but Mr. Aufman, you agreed to
let him out?
[Subcontractors’ attorney]: Basically we are after Hunley and
Longwood….
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[The court]: Got it.
N.T. Trial, 3/13/19, at 1747-48.
We do not read the foregoing as establishing that the Subcontractors
relinquished all claims against Aufman. The Subcontractors’ attorney did not
clearly confirm that the claims against Aufman were withdrawn, and their
attorney emphasized repeatedly that the Subcontractors were pursuing
breach-of-contract claims against Hunley. Ultimately, the trial court found
that Hunley breached it contracts with the Subcontractors, and opined that
“[t]he true culprits [in this matter] are Hunley represented by Aufman, Sepcic,
and McCollum who conducted the fraudulent scheme and extracted the funds
from Hunley, causing it to default on its debt to the Subcontractors." TCMNV
at 25. As such, the trial court pierced Hunley’s corporate veil, holding Aufman,
Sepcic, and McCollum personally liable. Id. at 23 (“McCollum, Aufman, and
Sepcic are personally liable to Hunley’s debts.”). Thus, Aufman’s claim that
the trial court should not have entered judgment against him for breach of
contract fails; the Subcontractors pursued claims against Hunley, and the trial
court appropriately ascertained that Hunley was created to perpetrate fraud
and imposed personal liability on Aufman. As such, no relief is due on this
issue.
Aufman’s Third Issue
In Aufman’s third issue, he avers that Longwood waived its crossclaim
against Aufman for the same reasons Hunley advanced above to support
waiver. See Hunley’s Third Issue, supra. However, we have already ruled
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that the trial court erred and/or abused its discretion in granting Longwood’s
crossclaim, and that Aufman does not have to indemnify Longwood.
Moreover, even if we had not already made that determination, we would
deem Aufman’s argument unavailing for the same reasons we rejected
Hunley’s waiver argument supra. See id. Thus, Aufman’s third issue warrants
no relief.
To summarize, we reiterate that we reverse the trial court’s May 11,
2021 judgment entered at GD 18-012048, to the extent it ordered Aufman to
indemnify Longwood. We affirm that judgment as to Aufman in all other
respects.
Conclusion
In conclusion, to give a final synopsis of our decision, we reverse the
part of the May 11, 2021 judgment entered at GD 18-012048, requiring
Hunley, McCollum, Aufman, Sepcic, and Sodexo to, jointly and severally,
indemnify Longwood for all sums paid by Longwood to the Subcontractors, or
any of them, and all sums collected from Longwood by Subcontractors, or any
of them. In all other respects, we affirm the trial court’s May 11, 2021
judgment entered at GD 18-012048. Regarding the trial court’s May 11, 2021
judgment entered at GD 15-015968, we affirm the trial court’s award of
$1,062,053.61 in attorneys’ fees and litigation expenses to Longwood.
Judgment entered at GD 18-012048 affirmed in part and reversed in
part. Judgment entered at GD 15-015968 affirmed. Jurisdiction relinquished.
Judgment Entered.
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Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/8/2023
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