El-Gharbaoui, A. v. Ajayi, A. ( 2021 )

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2021 PA Super 146ADIL EL-GHARBAOUI D/B/A ADEAL : IN THE SUPERIOR COURT OF
GENERAL CONTRACTORS : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 3057 EDA 2019
ADEBOWALE AJAYI AND JIBOLA :
AJAYI :
Appeal from the Judgment Entered November 27, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): 170207551
BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.*
OPINION BY OLSON, J.: FILED JULY 20, 2021
Appellant, Adil El-Gharbaoui d/b/a Adeal General Contractors, appeals
from the November 27, 2019 judgment1 entered upon a non-jury verdict in
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* Retired Senior Judge assigned to the Superior Court.
1 A review of Appellant’s October 18, 2019 notice of appeal demonstrates that
Appellant appealed from the trial court’s September 24, 2019 Pa.R.A.P.
1925(a) opinion which, according to Appellant, denied his post-trial motion.
“[A]n appeal to this Court can only lie from judgments entered subsequent to
the trial court’s disposition of any post-verdict motions, not from the order
denying post-trial motions.” Johnston the Florist, Inc. v. TEDCO Constr.
Corp., 657 A.2d 511, 514 (Pa. Super. 1995) (citation omitted). Here the
judgment in favor of the Appellees and against Appellant was entered on
November 27, 2019, and, as discussed more fully infra, upon entry of
judgment, Appellant’s post-trial motion was denied by operation of law
pursuant to Pa.R.Civ.P. 227.4(1)(b) because the trial court failed to dispose
of the post-trial motion within 120 days after its filing. Therefore, Appellant’s
notice of appeal shall be treated as filed on November 27, 2019, and as an
appeal from the entry of judgment. See McEwing v. Lititz Mut. Ins. Co.,
77 A.3d 639, 645 (Pa. Super. 2013). The caption has been corrected
accordingly.
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favor of Abebowale Ajayi and Jibola Ajayi, husband and wife, (collectively, “the
Ajayis”) in the amount of $24,942.22.2 We affirm the judgment, in part, and
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Furthermore, we note that the trial court did not formally deny Appellant’s
post-trial motion prior to, or in conjunction with, the issuance of its Rule
1925(a) opinion. Rather, as discussed infra, the trial court entered an order
on March 3, 2020, purporting to deny Appellant’s post-trial motion. See Trial
Court Order, 3/3/20.
2 As detailed more fully infra, the judgment consisted of a $9,942.22 award in
favor of the Ajayis for attorney’s fees and a $15,000.00 award on the
counterclaim the Ajayis asserted against Appellant. In their counterclaim, the
Ajayis asserted that because the construction contract involved only two
private, residential units, the Contractor and Subcontractor Payment Act
(“CASPA”), 73 P.S. §§ 501-516, was not applicable and that instead they were
permitted to recover damages pursuant to the Home Improvement Consumer
Protection Act (“HICPA”), 73 P.S. §§ 517.1 through 517.19, and the Unfair
Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1
through 201-10, due to Appellant’s deceptive and fraudulent conduct and
representations. The Ajayis claimed that the construction contract was for
home improvement of their residence, thus implicating HICPA, and that a
violation of HICPA was deemed a violation of UTPCPL, which allowed for, inter
alia, the recovery of actual damages.
By way of background, HICPA was enacted to protect consumers from
fraudulent and deceptive practices by home improvement contractors by
requiring, inter alia, that the home improvement contractor register with the
Pennsylvania Bureau of Consumer Protection. 73 P.S. § 517.3(a). Pursuant
to HICPA, an “owner” is defined as an owner of a private residence, or in the
case of a person who owns three or more residences within Pennsylvania, “the
person's primary residence or the part of the building which houses the
primary residence of the owner and those private residences the person uses
for personal recreational purposes.” Id. at § 517.2. A “private residence” is,
a “single family dwelling,” a “multifamily dwelling consisting of not more than
two units,” or “a single unit located within any multifamily dwelling, including
condominiums and cooperative units.” Id. Pursuant to HICPA, a contractor
commits home improvement fraud if the contractor, inter alia,
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1) makes a false or misleading statement to induce, encourage or
solicit a person to enter into any written or oral agreement for
home improvement services or provision of home improvement
materials or to justify an increase in the previously agreed upon
price;
(2) receives any advance payment for performing home
improvement services or providing home improvement materials
and fails to perform or provide such services or materials when
specified in the contract taking into account any force majeure or
unforeseen labor strike that would extend the time frame or unless
extended by agreement with the owner and fails to return the
payment received for such services or materials which were not
provided by that date[.]
Id. at § 517.8(a)(1) and (2). If a contactor violates HICPA, the contactor is
deemed to violate UTPCPL. Id. at § 517.10.
Here, the Ajayis alleged in their counterclaim that Appellant violated HICPA,
and, therefore, violated UTPCPL “[b]y submitting a bid and signing a contract
to complete renovations for a fixed price of $160,000[.00], and then admitting
that he did not intend to complete renovations for that price[.]” See Ajayis’
Answer with New Matter and Counterclaims, 8/26/17, at ¶87. According to
the Ajayis, “[Appellant] made a false and/or misleading statement to induce
[them] to enter into the [c]ontract [and supplemental contract]” in violation
of HICPA and, thus, also in violation of UTPCPL. Id. The trial court held that
the Ajayis “intended to use one of the two residential units in the [p]roperty
for personal purposes; namely as their primarily residence” and, as such,
HICPA was applicable. Trial Court Findings of Fact and Conclusions of Law,
1/29/19, at ¶8. The trial court granted the Ajayis’ counterclaim under Section
201-2(4) of UTPCPL because Appellant’s actions amounted to unfair and
deceptive trade practices. Id. at ¶9. Section 201-2(4)(xvi) makes it unlawful
for a contractor to engage in unfair or deceptive acts or practices including,
inter alia, “[m]aking repairs, improvements or replacements on tangible, real
or personal property, of a nature or quality inferior to or below the standard
of that agreed to in writing[.]” 73 P.S. § 201-2(4)(xvi). Implicit in the trial
court’s granting of the Ajayis’ counterclaim is the premise that Appellant
violated both HICPA and UTPCPL.
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vacate the judgment, in part, and remand this case for further proceedings
consistent with this opinion.3
A prior panel of this Court summarized the factual history as follows:
On August 30, 2010, [Appellant] entered into a contract (“original
contract”) with [the Ajayis] to renovate the building [the Ajayis]
owned [located along] Baltimore Avenue [in] Philadelphia,
[Pennsylvania] (“the property”), in exchange for $160,000[.00].
[Appellant] began work at the beginning of September 2010, after
[the Ajayis] paid a $25,000[.00] deposit. [Appellant] completed
demolition in September 2010, at a cost of $28,000[.00]. After
demolition, the building on the property was an empty shell
supported entirely by the partition and exterior walls.
From September 2010[,] to January 2011, [Appellant] ceased
work on the property while waiting for a plan from the engineer.
On January 29, 2011, the parties agreed to a supplemental
contract (“supplemental contract”), which included additional
masonry work in exchange for an additional $18,000[.00]. The
supplemental contract included a payment schedule with amounts
[to be paid by the Ajayis] when [Appellant] met certain
construction milestones. Between January 29, 2011[,] and
February 14, 2011, [Appellant] sent [the Ajayis] multiple emails
documenting completion of milestones. [The Ajayis] failed to
provide payment to [Appellant].
The property deteriorated over the winter as lack of funding and
[Appellant’s] safety concerns delayed construction. [Appellant]
arranged for a structural engineer to visit the property to address
his safety concerns.
On April 1, 2011, [Appellant] sent an invoice for $22,000[.00] to
[the Ajayis] for completed masonry work.[4] [The Ajayis] did not
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3 We also vacate the March 3, 2020 order denying Appellant’s post-trial motion
for the reasons set forth infra.
4 This April 1, 2011 invoice detailed the work performed as the demolition of
the building’s interior (100% completed), the excavation of the building site
necessary to increase the basement ceiling height (80% completed), and the
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make any payments. The building degraded and became
extremely hazardous, prompting [Appellant] to contact the
[Philadelphia] Department of Licenses and Inspection (“L & I”) to
voice his safety concerns. On April 11, 2011, L & I condemned
the property.
On the same day, [Appellant] sent an email to L & I requesting
that [it] remove his name from the property's building permit. In
the email, [Appellant] stated that he had not worked on the
property in three weeks. [Appellant] maintained keys to the
property until April 13, 2011, when [Appellant] terminated the
original contract and supplemental contract via email.
On September 20, 2011, [Appellant] filed a mechanics' lien claim
against the property for unpaid work totaling $22,000[.00]. On
September 22, 2013, [Appellant] filed a complaint to enforce [the]
mechanics' lien claim. On July 1, 2015, after a three-day bench
trial, the trial court [in Appellant’s mechanics’ lien enforcement
action] awarded [Appellant] $41,500[.00], including $22,000[.00]
for unpaid work, $11,000[.00 in] interest[,] and $8,500[.00] in
attorney's fees and costs. The judgment [in the amount of
$41,500.00] was entered on December 5, 2015[, against the
Ajayis].
Adil El-Gharbaoui v. Adebowale and Jibola Ajayi, 2018 WL 1528354, at
*1 (Pa. Super. 2018) (unpublished memorandum) (extraneous capitalization
omitted). On appeal, this Court affirmed, in part, the portion of the judgment
for unpaid work in the amount of $22,000.00, and vacated, in part, the portion
of the judgment awarded for interest, attorney’s fees, and costs in the
aggregate amount of $19,500.00. 5 Id. at *4.
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pouring of the building’s new foundation and constructing of underpinning to
support the existing foundation (85% completed). Appellant’s Complaint,
2/28/17, at Exhibit B.
5 The prior panel held that, “a mechanics’ lien action is distinct from a breach
of contract action seeking remedies pursuant to CASPA, which [allows for an
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Following the prior appeal in which Appellant successfully defended his
mechanics’ lien claim for unpaid labor and materials but lost his recovery for
attorney’s fees and an award of interest, Appellant filed a new complaint on
February 28, 2017, against the Ajayis alleging a breach of contract claim under
CASPA and seeking, inter alia, attorney’s fees, interest, and penalties. Based
upon the judgment obtained in the mechanics’ lien action, Appellant claimed
the Ajayis were collaterally estopped from contesting the facts and legal
contentions underlying his contractual claims. Upon completion of a two-day
non-jury trial, the trial court, on January 29, 2019, rejected Appellant’s claim
pursuant to CASPA and entered a verdict in favor of the Ajayis on their
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award of] penalties, interest, and attorney’s fees.” El-Gharbaoui, 2018 WL
1528354, at *3. Section 1301(a) of the Mechanics’ Lien Law of 1963 states,
in pertinent part, that “every improvement and the estate or title of the owner
in the property shall be subject to a lien . . . for the payment of all debts due
by the owner to the contractor . . . for labor or materials furnished in the
erection or construction, or the alteration or repair of the improvement[.]” 49
P.S. § 1301(a). As discussed more fully infra, damages recoverable under a
mechanics’ lien action are expressly limited by Section 1301(a) to amounts
owed for labor and materials. Attorney’s fees and penalties, which may be
awarded as part of a successful breach of contract claim under CASPA, are not
recoverable in a mechanics’ lien action. Id.
Here, the prior panel stated that Appellant “did not file [a breach of contract]
action under CASPA [but, rather,] sought relief only under the Mechanics’ Lien
Law [of 1963].” El-Gharbaoui, 2018 WL 1528354, at *3. Because
Appellant’s prior action sought to compel payment secured by the mechanics’
lien, the prior panel determined that, “the trial court erred when it awarded
interest and attorney’s fees pursuant to CASPA in [the] mechanics’ lien
action.” Id. (implying that, in order to recover interest, penalties, and
attorney’s fees, Appellant must bring a subsequent breach of contract action
under CASPA).
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counterclaim alleging that Appellant violated HICPA and UTPCPL.6 See Trial
Court Findings of Fact and Conclusions of Law, 1/29/19, at 7. Consequently,
the trial court awarded the Ajayis attorney’s fees in the amount of $9,942.22
for successfully defending against Appellant’s CASPA action and awarded the
Ajayis $15,000.00 in damages for their counterclaim. Id.On February 8, 2019, Appellant filed a post-trial motion. While
Appellant’s post-trial motion remained unresolved, and before Appellant filed
a notice of appeal, the trial court, on June 24, 2019, ordered Appellant to file
a concise statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b), which Appellant subsequently filed on July 16, 2019. On September
24, 2019, the trial court filed its Rule 1925(a) opinion. After Appellant filed a
praecipe for entry of judgment, judgment was entered on November 27,
2019.7 This appeal followed.
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6 The trial court granted the Ajayis’ counterclaim under UTPCPL on the basis
that Appellant’s actions amounted to unfair and deceptive trade practices, in
accordance with 73 P.S. § 201-2(4)(xvi), when the Ajayis received
improvements that were of a quality inferior to what was specified in the
contract, as evidenced by the Ajayis’ retention of another contractor to
complete the work. Trial Court Findings of Fact and Conclusions of Law,
1/29/19, at 6-7. The trial court denied the Ajayis’ request for treble damages.
7 Pennsylvania Rule of Civil Procedure 227.4(1)(b) permits the prothonotary
to enter judgment upon praecipe of a party when the trial court has not
entered an order disposing of timely post-trial motions within 120 days after
the filing of the first post-trial motion. In the case sub judice, 120 days from
February 8, 2019, the date Appellant filed his post-trial motion, was Saturday,
June 8, 2019. See 1 Pa.C.S.A. § 1908 (stating that, whenever a period of
time is referred to in a statute (such as Rule 227.4(1)(b)) and the last day of
the period falls on a Saturday or Sunday, such day shall be omitted from the
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Appellant raises the following issues for our review:
[1.] Did the trial court commit reversible error by ruling that
[CASPA] did not apply to the construction of a church, [a]
day[-]care [center], and two [residential] apartments, and
instead applied [HICPA and UTPCPL]?
[2.] Is Appellant entitled to a new trial where the [trial court]
failed to abide by the doctrine of [collateral estoppel 8] and
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computation of time). Therefore, the prothonotary was permitted to enter
judgment upon praecipe of a party on, or after, Monday, June 10, 2019,
because the trial court did not dispose of Appellant’s post-trial motion within
120 days.
A judgment entered pursuant to Rule 227.4(1)(b) is final as to all parties and
is not subject to reconsideration. See Pa.R.Civ.P. 227.4(1)(b). Moreover, a
post-trial motion is deemed denied by operation of law when the trial does not
enter an order disposing of the motion within 120 days and judgment has
been entered pursuant to Rule 227.4(1)(b). See Morningstar v. Hoban,
819 A.2d 1191, 1195-1196 (Pa. Super. 2003), appeal denied, 844 A.2d 553(Pa. 2004) (explaining that, if the trial court has not rendered a decision on
the post-trial motion within 120 days of its filing, the party may await the
decision of the trial court or may praecipe for entry of judgment in order to
advance the case); see also Pa.R.Civ.P. 227.4(1)(b)(Explanatory Note)
(stating, Rule 227.4 “does not provide an automatic limit upon the time in
which the [trial] court may make its ruling. However, it does provide a time
standard by which the parties and the [trial] court may proceed.”).
Here, the record contains an order entered on March 3, 2020, in which the
trial court purported to deny Appellant’s post-trial motion. Notwithstanding
that order, Appellant’s post-trial motion was deemed denied by operation of
law as of November 27, 2019, because the trial court had not disposed of the
motion within 120 days from the date on which it was filed and judgment was
entered by praecipe pursuant to Rule 227.4. Morningstar, 819 A.2d at
1195-1196. Therefore, the March 3, 2020 order denying Appellant’s post-trial
motion is a legal nullity, and we vacate the order.
8 Although Appellant used the terms res judicata and collateral estoppel
throughout his argument, see Appellant’s Brief at 10-19, Appellant agreed
that it is the doctrine of collateral estoppel upon which his challenge relies.
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honor the factual rulings conclusively established by the
[trial court,] and affirmed by [this Court, in the mechanics’
lien action]?
[3.] Did the trial court commit reversible error by ruling that [the
Ajayis’] counterclaims were not time[-]barred by the statute
of limitations?
[4.] Did the trial court commit reversible error by basing its
decision on inadmissible evidence, including but not limited
to [the Ajayis’] exhibits that were not uploaded to the [trial
court] docket in a timely manner in violation of Phila.R.J.A.
1900, and the testimony of witnesses deemed to [] be [not]
credible?
Appellant’s Brief at 3 (extraneous capitalization omitted).9
In his first issue, Appellant challenges the trial court’s rejection of his
breach of contract claim seeking attorney’s fees and penalties pertaining to
his mechanics’ lien judgment on grounds that CASPA was not applicable in the
instant matter.10
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See id. at 13 (stating, “[i]n the instant case, the doctrine of collateral estoppel
applies”); see also Matternas v. Stehman, 642 A.2d 1120, 1124
(Pa. Super. 1994) (stating that, “the effect of res judicata will attach in any
subsequent proceeding which attempts to address the rights of the parties in
the property that was the subject of the mechanics’ lien [action]. However,
the doctrine of res judicata has no effect on subsequent actions on the
contract.” (footnote omitted)).
9 For purpose of disposition, Appellant’s issues have been re-organized.
10 In his complaint, Appellant alleged that he and the Ajayis entered into a
construction contract and supplemental contract and that the Ajayis breached
the construction contract when they failed to make payments as due under
the terms of the construction contract. Appellant’s Complaint, 2/28/17, at
¶¶12-14. By way of damages, Appellant did not seek payment due under the
construction contract because a mechanics’ lien for the labor and materials
had been obtained in his prior action and the Ajayis subsequently paid the
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Appellant’s issue requires this Court to interpret the CASPA statute to
determine its applicability in the case sub judice. Our standard of review for
such claims is well-established.
When determining the meaning of a statute, a court must construe
the words of that statute according to their plain meaning.
1 Pa.C.S.A. § 1903(a)[.] When the words of a statute are clear
and free from all ambiguity, they are not to be disregarded under
the pretext of pursuing the spirit of the statute. 1 Pa.C.S.A.
§ 1921(a)[.] It is only when the statute is unclear that the court
may embark upon the task of ascertaining the intent of the
legislature. Absent a definition, statutes are presumed to employ
words in their popular and plain everyday sense, and popular
meanings of such words must prevail.
Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497, 501 (Pa. Super.
2009) (case citations and original brackets omitted), appeal denied, 992 A.2d
890 (Pa. 2010).
CASPA [is] a comprehensive statute enacted in 1994 to cure
abuses within the building industry involving payments due from
owners to contractors, contractors to subcontractors, and
subcontractors to other subcontractors. The underlying purpose
of CASPA is to protect contractors and subcontractors and to
encourage fair dealing among parties to a construction contract.
The statute provides rules and deadlines to ensure prompt
payments, to discourage unreasonable withholding of payments,
and to address the matter of progress payments and retainages.
Under circumstances prescribed in the statute, interest,
penalt[ies], attorney[’s] fees[,] and litigation expenses may be
imposed on an owner, contractor[,] or subcontractor who fails to
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amount of the lien. As per the decision by the prior panel, Appellant filed the
instant breach of contact claim pursuant to CASPA in order to recover interest,
73 P.S. § 505, penalties, 73 P.S. § 512(a), and attorney’s fees, 73 P.S.
§ 512(b). Appellant’s Complaint, 2/28/17, at ¶¶15-19; see also
El-Gharbaoui, 2018 WL 1528354, at *3.
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make payment to a contractor or subcontractor in compliance with
the statute.
Zimmerman, 984 A.2d at 500-501 (citation, original brackets, ellipsis,
quotation marks, and footnote omitted); see also Nippes v. Lucas, 815 A.2d
648, 651 (Pa. Super. 2003) (stating that, “[t]he purpose of [CASPA] is to
provide protection to contractors [who] require the greatest protection when
they perform work on major construction projects”). “CASPA provides that
when a contractor or subcontractor performs, he[, or she,] is entitled ‘to
payment from the party with whom the contractor or subcontractor has
contracted.’’’ Scungio Borst v. 410 Shurs Lane Developers, 106 A.3d 103,
106 (Pa. Super. 2014) (en banc), quoting 73 P.S. § 504, aff’d, 146 A.3d 232(Pa. 2016); see also 73 P.S. § 507.
CASPA applies to all construction contracts that involve “[a]n
agreement, whether written or oral, to perform work on any real property
located within this Commonwealth” with the exception of construction
contracts involving public works projects11 and “improvements to real property
[that consists] of six or fewer residential units which are under construction
simultaneously.” See 73 P.S. § 515 (stating that, CASPA “shall apply to
construction contracts”); see also id. at § 502 (defining the term
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11 “CASPA is effectively the prompt payment statute for private parties, while
the [Commonwealth] Procurement Code[, 62 Pa.C.S.A. §§ 101-4604,]
provides prompt payment rules for government projects” pursuant to 62
Pa.C.S.A. §§ 3901-3942. A. Scott Enters., Inc. v. City of Allentown, 142
A.3d 779, 788 (Pa. 2016).
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“construction contract” as, “[a]n agreement, whether written or oral, to
perform work on any real property located within this Commonwealth” and
defining the term “real property” as, “[r]eal estate that is improved, including
lands, leaseholds, tenements and hereditaments, and improvements placed
thereon”); Clipper Pipe & Serv. v. Ohio Cas. Ins., 115 A.3d 1278, 1282,
1284 (Pa. 2015) (holding that, CASPA does not apply in the context of public
works projects, where the owner is a government entity); 73 P.S. § 503(a)
(stating that, CASPA does “not apply to improvements to real property which
consists of six or fewer residential units which are under construction
simultaneously”).12
Here, Appellant argues that CASPA was applicable in his current breach
of contract action because his construction contract with the Ajayis involved
improvements to a church, a day-care facility, and two residential apartments
and, as such, he was entitled to recover attorney’s fees and penalties related
to the Ajayis’ breach of the construction contract upon their failure to make
payment pursuant to the contract’s terms. Appellant’s Brief at 19-21.
Appellant contends that the church and the day-care facility are
non-residential units and that, as a mixed-use property involving both
non-residential and residential units, CASPA was applicable and permitted the
recovery of attorney’s fees and penalties. Id. at 20. Appellant further asserts
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12Section 503(b) of CASPA further states that, CASPA does “not apply to
contracts for the purchase of materials by a person performing work on his or
her own real property.” 73 P.S. § 503(b).
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that the property’s zoning designation as “CMX-2,” which is defined as
“Neighborhood Commercial Mixed Use 2,” supports his proposition that CASPA
applied in the instant matter because this zoning classification was applicable
to buildings comprised of residential and non-residential units.13 Id.
In finding that CASPA was not appliable to Appellant’s breach of contract
cause of action, the trial court stated,
In this case, the contracts at issue relate[d] to real property
[located along] Baltimore Avenue [in] Philadelphia,
Pennsylvania[.] [The property] consist[ed] of two residential
units and a basement that are under construction simultaneously.
By its own terms, CASPA does not apply to this case. "A plain
reading reveals that [CASPA] only applies to construction
contracts in those instances where seven or more residential units
are simultaneously under construction[. CASPA] was not meant
to apply to renovations of a single residence." In addition, the
fact that the land was zoned for "Commercial C-2" is unpersuasive
because the property is a mixed-use residential building. [The
Ajayis] purchased the property and engaged an architect to design
the renovation of the entire building to maintain the existing use
as a church on the first floor and two residential units on the
second floor, plus convert the basement into useable space for
church activities. Therefore, CASPA does not apply and
[Appellant] is not entitled to [penalties,] interest[,] or attorney's
fees.
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13 We take judicial notice that Section 14-402 of the Philadelphia City Zoning
Code defines CMX-2 as the zoning classification “intended to accommodate
active commercial and mixed-use development, including
neighborhood-serving retail and service uses.” See
https://codelibrary.amlegal.com/codes/philadelphia/latest/philadelphia_pa/0
-0-0-203439 (last visited May 24, 2021). This zoning classification permits,
inter alia, residential units, day-care facilities, and religious assemblies. See
Philadelphia City Zoning Code Section 14-602.
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Trial Court Opinion, 9/24/19, at 5 (case citation and extraneous capitalization
omitted).14
Here, the subject property is a neighborhood commercial mixed-use
property because it is comprised of commercial space, intended for use as a
religious assembly and as a day-care facility, as well as two residential units.
Appellant’s issue of whether CASPA applies to a mixed-use property, which
involves both residential units and non-residential or commercial units,
presents an issue of first impression for this Court. “[B]ecause CASPA is a
remedial statute, [courts] must accord it a liberal construction ‘to effect its
objects and to promote justice.’” Zimmerman, 984 A.2d at 502 n.8 (original
brackets omitted); see also 1 Pa.C.S.A. § 1928(c) (stating that, statutes,
other than those enumerated in Section 1928(b), of which none apply in the
instant matter, “shall be liberally construed to effect their objects and to
promote justice”).
A review of CASPA, and prior case-law, demonstrates that Pennsylvania
courts have applied CASPA to all construction contracts with the limited
exception of construction contracts involving public works projects and
construction contracts for improvements to real property that consists of six
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14 The trial court’s Rule 1925(a) opinion is time-stamped as having been filed
on September 20, 2019. The trial court docket reflects that the opinion was
filed on September 24, 2019, with a notation that the opinion was “filed” on
September 20, 2019. For purposes of clarity, we deem the trial court opinion
filed on September 24, 2019.
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or fewer residential units which are under construction simultaneously. The
term “improve” is defined by CASPA as:
To design, effect, alter, provide professional or skilled services,
repair or demolish any improvement upon, connected with or on
or beneath the surface of any real property, to excavate, clear,
grade, fill or landscape any real property, to construct driveways
and private roadways, to furnish materials, including trees and
shrubbery for any of these purposes, or to perform any labor upon
improvements.
73 P.S. § 502. CASPA defines the term “improvement” to include:
(1) All or any part of a building or structure.
(2) The erection, alteration, demolition, excavation, clearing,
grading or filling of real property.
(3) Landscaping, including the planting of trees and shrubbery,
and constructing driveways and private roadways on real
property.
Id. “Real Property” is defined by CASPA as “[r]eal estate that is improved,
including lands, leaseholds, tenements and hereditaments, and improvements
placed thereon.” Id.
CASPA’s stated applicability to a broad range of construction contracts
that entail improvements “to any part of a building or structure,” including
alterations effecting improvements “upon, connected with[,] or on or beneath
the surface of any real property,” including, inter alia, excavation work, leads
us to conclude that CASPA was intended to apply to construction contracts
involving mixed-use property comprised of both residential and
non-residential or commercial units, so long as the scope of the construction
contact is not restricted to the improvement of six or fewer residential units
- 15 -
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which are under construction simultaneously. Stated another way, CASPA
applies to construction contracts except those contracts involving public works
projects and construction contracts for the improvement to real property
consisting solely of six or fewer residential units under construction
simultaneously.
In the case sub judice, the trial court held that CASPA did not apply to
the parties’ construction contract and supplemental contact because “the
contracts at issue in this case relate[d] to real property consisting of two
residential units under construction simultaneously.” Trial Court Findings of
Fact and Conclusions of Law, 1/29/19, at 5 ¶2. Construing CASPA’s scope in
this way, the trial court erred in disregarding that the construction contact
between the parties for the Ajayis’ real property also included work performed
in connection with commercial property, namely the church and day-care
facility. As the trial court observed in its Rule 1925(a) opinion, “[the Ajayis]
purchased the [real p]roperty and engaged an architect to design the
renovation of the entire building to maintain the existing use as a church on
the first floor and two residential units on the second floor, plus convert the
basement into useable space for church activities.” Trial Court Opinion,
9/24/19, at 5 (emphasis added). Engaging an architect to design renovations
to the entire building suggested that the Ajayis intended to make
improvements to the entire structure, including the commercial units within
the property that would be open to the public such as the church and day-care
facility. Furthermore, as discussed supra, Appellant’s invoice detailing the
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unpaid balance due for labor and materials, which was the ground for the
mechanics’ lien and now forms the basis of Appellant’s breach of contact claim
under CASPA, stated that the work performed was for 100% of the demolition
of the interior of the entire building, as well as the majority (80-85%) of the
work necessary to excavate the building’s foundation, pour a new foundation,
and secure through underpinning the remaining existing foundation. This use
of labor and materials related to improvements to the entire real property
owned by the Ajayis that involved both residential and commercial units and
did not relate solely to the two residential units.
CASPA, which has long-been viewed as a comprehensive statute, was
designed to “cure abuse in the building industry” and afford protection to
contractors and subcontractors involved in major construction projects. See
Zimmerman, supra; see also Nippes, supra. The objective of CASPA
would be thwarted if the statute were deemed inapplicable to construction
contracts that involved covered commercial structures, including mixed-use
development, simply because the construction contract involved
improvements on the same land or building to six or fewer residential units.
Therefore, consistent with the principle that remedial statutes be liberally
construed, we find that CASPA was intended to apply to construction contracts
involving covered structures, including mixed-use development, such as the
property in the case sub judice, regardless of the number of residential units
coincidentally involved in the contract. Consequently, the trial court erred in
determining that CASPA did not apply to Appellant’s breach of contract cause
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of action seeking recovery of attorney’s fees and penalties pursuant to
CASPA.15
Having found that CASPA applied to Appellant’s cause of action, we turn
to Appellant’s second issue in which Appellant contends that the elements
necessary to prove a cause of action for breach of contract, thereby permitting
the recovery of damages pursuant to CASPA, were established in the prior
mechanics’ lien action and that, pursuant to the doctrine of collateral estoppel,
the trial court in the case sub judice erred by failing to award penalties and
attorney’s fees pursuant to CASPA. Appellant’s Brief at 14.
Our standard and scope of review in the case sub judice implicates the
following general principles:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of the law. The findings of fact of the trial
[court] must be given the same weight and effect on appeal as
the verdict of a jury. We consider the evidence in a light most
favorable to the verdict winner. We will reverse the trial court
only if its findings of fact are not supported by competent evidence
in the record or if its findings are premised on an error of law.
However, where the issue concerns a question of law, our scope
____________________________________________
15 Appellant’s argument in support of his first issue asserts only that the trial
court erred in applying HICPA, and not CASPA, in the disposition of his claim
for attorney’s fees and penalties relating to his breach of contract claim.
Accordingly, we have examined Appellant’s first claim within the confines of
his limited argument. Appellant has not advanced an argument which asserts
that the application of CASPA in the instant cause of action for attorney’s fees
and penalties precludes, as a matter of law, the application of HICPA or
UTPCPL to the Ajayis’ counterclaim. We, therefore, have not addressed this
issue and leave the Ajayis’ $15,000.00 award intact.
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of review is plenary. The trial court's conclusions of law on appeal
originating from a non-jury trial are not binding on an appellate
court because it is the appellate court's duty to determine if the
trial court correctly applied the law to the facts of the case.
Wyatt Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564
(Pa. Super. 2009) (citation, original brackets, ellipsis, and original paragraph
formatting omitted).
The doctrine of collateral estoppel “bars re-litigation of an issue that was
decided in a prior action, although it does not require the claims as such be
the same.” In re Coatesville Area Sch. Dist., 244 A.3d 373, 379 (Pa.
2021).
Collateral estoppel will only apply where: the issue is the same as
in the prior litigation; the prior action resulted in a final judgment
on the merits; the party against whom the doctrine is asserted
was a party or in privity with a party to the prior action; and the
party against whom the doctrine is asserted had a full and fair
opportunity to litigate the issue in the prior action. In some
renditions, courts add a fifth element, namely, that resolution of
the issue in the prior proceeding was essential to the judgment.
Id. at 379 (citations omitted). Collateral estoppel is premised on practical
considerations[, including] avoiding the ‘cost and vexation’ of repetitive
litigation, conserving judicial resources, and, by preventing inconsistent
decisions, encouraging reliance on adjudication.” Id. (citation, some
quotation marks, and original brackets omitted).
Additionally, when a plaintiff seeks to employ the doctrine [of
collateral estoppel] offensively, courts must also consider whether
(1) plaintiff had an opportunity to join the earlier action, (2) the
defendant had an incentive to defend the first action vigorously,
(3) the judgment relied upon as a basis for collateral estoppel is
inconsistent with one or more previous judgments in favor of the
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defendant, and (4) the second action would afford the defendant
procedural opportunities unavailable in the first action that could
produce a different result. In considering whether the application
of the doctrine of offensive collateral estoppel is warranted, the
general rule should be that in cases where a plaintiff could easily
have joined the earlier action or where, either for the
aforementioned reasons or for other reasons, the application of
offensive collateral estoppel would be unfair to a defendant, a trial
[court] should not allow the use of collateral estoppel.
Toy v. Metro. Life Ins. Co., 863 A.2d 1, 15 (Pa. Super. 2004) (citations,
original brackets, quotation marks, and ellipsis omitted), aff’d, 928 A.2d 186(Pa. 2007).
Here, Appellant asserts that implicit in his obtaining a mechanics’ lien
against the Ajayis’ real property for the amount of unpaid labor and materials
($22,000.00), a ruling that was affirmed by this Court, was the principle that,
pursuant to the doctrine of offensive collateral estoppel, the trial court in the
case sub judice was required to find that a breach of contract claim had been
established and that, pursuant to CASPA, Appellant was entitled to an award
of penalties and attorney’s fees.16 Appellant’s Brief at 13-14 (stating that,
____________________________________________
16 In order to be entitled to relief under CASPA, a party must first establish a
contractual right to payment pursuant to either a written or oral construction
contract and a subsequent breach of that construction contract. Scungio,
106 A.3d at 109.
Thus, the construction contract is the starting point of any CASPA
analysis. CASPA does not supplant the traditional breach of
contract action between contracting parties; it merely makes
additional remedies available to contractors and subcontractors
when they are not promptly paid by the party with which they
contracted.
Id.
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“[a]s [the] facts [established in the mechanics’ lien action] encompass the
elements necessary [for] a breach of contract [claim], the necessary facts
have been [previously] decided [to permit the trial court in the instant case]
to enter an award pursuant to [CASPA]”). Specifically, Appellant contends
that his mechanics’ lien in the amount of $22,000.00 demonstrated that “[he]
did not breach the contract (or else he could not have been given an award
under the Mechanics’ Lien [Law of 1963], [the Ajayis] owned payment for the
services rendered, [the Ajayis] had no valid reason to withhold [Appellant’s]
payment” and the Ajayis breached the construction contract by failing to make
payment. Id. at 13. In other words, the doctrine of offensive collateral
estoppel required the trial court in the case sub judice to find the existence of
a construction contract between the parties that required the Ajayis to make
payment to Appellant in the amount of $22,000.00, that the Ajayis breached
the contract by failing to make such payment, and that as a result of this
breach, Appellant suffered damages and was entitled to recover penalties and
attorney’s fees pursuant to CASPA.
A breach of contract action, unlike a mechanics’ lien action, is an in
personam action intended to settle the contractual obligations of the parties
and attaches to the general assets of the unsuccessful party and not to the
property, itself.17 Matternas, 642 A.2d at 1123; see also Wyatt, 976 A.2d
____________________________________________17 By contrast, a mechanics’ lien is an in rem action that “addresses the rights
of parties vis-à-vis a parcel of property [and] does not address the rights of
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at 570. In a breach of contract claim seeking remedies pursuant to CASPA,
the trial court may award penalties, attorney’s fees, and costs whereas in a
mechanics’ lien action, recovery is limited to the debt for work done, or for
materials furnished, and does not permit the recovery of unliquidated
damages. Wyatt, 976 A.2d at 570.
CASPA requires an owner to pay a contractor “strictly in accordance with
the terms of the construction contract.” 73 P.S. § 505(a). Section 512 of
CASPA states,
If arbitration or litigation is commenced to recover payment due
under this act and it is determined that an owner, contractor[,] or
subcontractor has failed to comply with the payment terms of this
act, the arbitrator or [trial] court shall award, in addition to all
other damages due, a penalty equal to 1% per month of the
amount that was wrongfully withheld.
Id. at § 512(a)(1) (emphasis added); see also Scungio, 106 A.3d at 106
(stating that, CASPA requires that a penalty equal to 1 per centum per month
be assessed against an owner if payment due under the terms of the
construction contract was wrongfully withheld and the contractor commenced
litigation to recover payment). Section 512(a)(2) states,
An amount shall not be deemed to have been wrongfully withheld
if all of the following apply:
____________________________________________
the parties vis-à-vis each other.” Matternas, 642 A.2d at 1123. “A
mechanics’ lien is simply a statutory security for enforcing the payment of
certain claims which have supposedly added to the value of the property[.]”
Id. at 1124.
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(i) The amount bears a reasonable relation to the value of
any claim held in good faith by the owner, contractor[,] or
subcontractor against whom the contractor or subcontractor
is seeking to recover payment.
(ii) The claim holder complies with [Section 506, relating to
an owner’s withholding of payment for good faith claims, or
Section 511, relating to a contractor’s or subcontractor’s
withholding of payment for good faith claims.]
73 P.S. § 512(a)(2). Because the case sub judice involves an owner’s
withholding of payment from a contractor, we examine Section 506, which
states,
§ 506. Owner's withholding of payment for good faith
claims
(a) Authority to withhold.--The owner may withhold payment
for deficiency items according to the terms of the construction
contract. The owner shall pay the contractor according to the
provisions of this act for any item which appears on the invoice
and has been satisfactorily completed.
(b) Notice.--
(1) Except as provided under [Section 509, relating to
retainage, which is not at issue in the case sub judice,] if an
owner withholds payment from a contractor for a deficiency
item, the amount withheld shall be reasonable and the
owner shall notify the contractor of the deficiency item by a
written explanation of its good faith reason within 14
calendar days of the date that the invoice is received.
(2) Failure to comply with paragraph (1) shall constitute a
waiver of the basis to withhold payment and necessitate
payment of the contractor in full for the invoice.
(3) If an owner withholds payment from a contractor for a
deficiency item, the owner shall remit payment to the
contractor for each other item that has been satisfactorily
completed under the construction contract.
Id. at § 506.
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An award of penalties on an amount wrongfully withheld is mandatory
pursuant to Section 512(a). Zimmerman, 984 A.2d 497, 502-503; see also
Imperial Excavating and Paving, LLC v. Rizzetto Constr. Mgmt., Inc.,
935 A.2d 557, 564 (Pa. Super. 2007) (stating that, the “[u]se of the word
‘shall’ in [Section 512] can only be interpreted as a legislative mandate”).
Prior to awarding penalties, however, a trial court is required to conduct a
hearing and make factual determinations as to whether the owner’s
withholding of payment was “wrongful” under Section 512(a). In the case sub
judice, the trial court did not make such a factual determination.
Regarding Appellant’s request for attorney’s fees, Section 512(b) states,
Award of attorney fee and expenses.--Notwithstanding any
agreement to the contrary, the substantially prevailing party
in any proceeding to recover any payment under this act shall be
awarded a reasonable attorney fee in an amount to be determined
by the [trial] court or arbitrator, together with expenses.
73 P.S. § 512(b) (emphasis added).
While the mandatory language of section 512(b) requires an
award of attorney's fees to a substantially prevailing party, the
issue of whether any party to a lawsuit substantially prevailed is
left to the trial court's discretion.
Zavatchen v. RHF Holdings, Inc., 907 A.2d 607, 610 (Pa. Super. 2006)
(internal citation omitted), appeal denied, 917 A.2d 315 (Pa. 2007).
Determining whether a party substantially prevailed in a cause of action under
CASPA does not turn “on a simple mathematical comparison of the parties[’]
respective recoveries.” Zavatchen, 907 A.2d at 609 (recognizing that,
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“requiring an award of attorney’s fees simply because a party won a net
judgment would effectively write[-]out the modifier ‘substantially’” (some
quotation marks omitted)). Rather, a “substantially prevailing party” under
CASPA must: (1) be a “prevailing party,” which means that judgment was
entered in the party’s favor, and (2) any claim that the owner was authorized
to withhold payment in accordance with Section 506 of CASPA was groundless
or frivolous. Id. at 611. The issue of whether a party to a cause of action
under CASPA is a “substantially prevailing party” is left to the sound discretion
of the trial court. Id. at 610. In the case sub judice, the trial court made no
determination as to whether Appellant was a substantially prevailing party.
In addressing Appellant’s second issue, we are mindful that a mechanics’
lien action is a method by which a contractor (or subcontractor) who has
invested labor and materials in an owner’s property can obtain a security for
their investment independent of other contractual remedies, provided that the
statutory requirements to obtain a mechanics’ lien, as set forth in the
Mechanics’ Lien Law of 1963, 49 P.S. §§ 1101-1902, are strictly followed.
Obtaining a mechanics’ lien as security for payment can be more expeditious
than pursuing a breach of contract claim and a mechanics’ lien assumes
priority over other liens. Philadelphia Constr. Servs. LLC v. Domb, 903
A.2d 1262, 1267-1268 (Pa. Super. 2006); see also Terra Firma Builders,
LLC v. King, ___ A.3d ___, 2021 WL 1681341, at *6 (Pa. 2021) (slip opinion)
(stating that, “a mechanics’ lien is an extraordinary remedy that provides the
contractor with a priority lien on property, an expeditious and advantageous
- 25 -
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remedy”). While an action for a mechanics’ lien sounds in a breach of contract
claim, the defenses against such an action are limited to the filing of
preliminary objections raising a claim that the property is exempt or immune
to such a lien or that the action failed to conform to the requirements of the
Mechanics’ Lien Law of 1963.18 49 P.S. § 1505 (stating that, “[a]ny party may
preliminarily object to a claim upon a showing of exemption or immunity of
the property from lien, or for lack of conformity with [the Mechanics’ Lien Law
of 1963]”).
Provided that the requirements necessary for the application of the
doctrine of collateral estoppel or, in the case sub judice, the doctrine of
offensive collateral estoppel, have been established before the trial court, then
the existence of a construction contract and a breach of that agreement, as
determined in a prior mechanics’ lien action, may preclude re-litigation of
these elements in a subsequent breach of contract action brought pursuant to
CASPA. In other words, if all of the necessary elements for offensive collateral
estoppel have been established, a contractor (such as Appellant) bringing a
breach of contract claim under CASPA may rely on the doctrine of offensive
collateral estoppel in order to avoid relitigating certain issues that were
resolved on the merits in a prior mechanics’ lien action in order to prove his
or her entitlement to relief. Additionally, if all of the necessary elements for
____________________________________________
18 The damages and remedies available in a mechanics’ lien action are “limited
by statute to [the] amount owed for work and materials, plus, through
decisional law, profits.” Wyatt, 976 A.2d at 570.
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offensive collateral estoppel have been established by the contractor, then a
defendant (such as the Ajayis) facing a breach of contract claim under CASPA
may be collaterally estopped from relitigating certain issues that were resolved
on the merits in a prior mechanics’ lien action. At this juncture, however, the
required underlying determinations have not yet been made.19
Here, the trial court erroneously determined that CASPA did not apply
to Appellant’s cause of action. Therefore, the trial court did not consider if,
and to what extent, the doctrine of offensive collateral estoppel precluded
re-litigation of certain issues, namely the existence of a construction contract,
the Ajayis’ breach of that contract, and what damages, if any, Appellant was
eligible to recover as a result of that breach.20 Therefore, we remand this
case for such relevant determinations in light of our holding herein.
Furthermore, we vacate the award of attorney’s fees in favor of the
Ajayis. After examining the applicability of the doctrine of offensive collateral
estoppel, the trial court shall determine: (1) whether Appellant is entitled to
penalties on any amount wrongfully withheld by the Ajayis pursuant to Section
____________________________________________
19 If all of the necessary elements of offensive collateral estoppel have not
been met and issues underlying a theory of recovery have not been resolved,
then those issues must be tried and resolved for the first time in the
subsequent litigation.
20 Appellant is limited to one ultimate satisfaction for the expense of his labor
and materials and cannot recover twice for the same loss. Wyatt, 976 A.2d
at 570 n.9.
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512(a), and (2) whether Appellant was the substantially prevailing party and,
thus, entitled to attorney’s fees pursuant to Section 512(b).
Appellant’s third issue challenges the trial court’s finding that Appellant
waived the statute of limitations defense to the Ajayis’ counterclaim for
violations of UTPCPL and HICPA,21 because he raised this defense after the
conclusion of trial. Appellant’s Brief at 24; see also Trial Court Opinion,
9/24/19, at 7 (stating that, “[Appellant] raised the [statute of limitations]
defense for the first time[] following [the conclusion of the] trial”). Appellant
contends he raised the statute of limitations defense in paragraph 117 of his
answer and new matter to the Ajayis’ counterclaims, which he filed prior to
the conclusion of the trial. Appellant’s Brief at 24.
As stated supra, “[o]ur appellate role in cases arising from non-jury
trial verdicts is to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court committed error
in any application of the law.” Wyatt, 976 A.2d at 564.
A statute of limitations defense is generally raised in new matter. See
Pa.R.Civ.P. 1030(a) (stating that, “all affirmative defenses including but not
limited to the defenses of ... statute of limitations ... shall be pleaded in a
____________________________________________
21 A HICPA violation constitutes a violation of UTPCPL. 73 P.S. § 517.10. A
UTPCPL claim is subject to a 6-year statute of limitations. Morse v. Fisher
Asset Mgmt., LLC, 206 A.3d 521, 526 (Pa. Super. 2019); see also 42
Pa.C.S.A. § 5527(b) (stating that, “[a]ny civil action or proceeding which is
neither subject to another limitation specified in this subchapter nor excluded
from the application of a period of limitation by section 5531 (relating to no
limitation) must be commenced within six years”).
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responsive pleading under the heading ‘New Matter’”); see also Sayers v.
Heritage Valley Med. Group, Inc., 247 A.3d 1155, 1159-1160 (Pa. Super.
2021) (holding that, a statute of limitations defense, although generally raised
by way of new matter, may be considered when raised via preliminary
objections, and not in new matter, in limited circumstances). “Pennsylvania
is a fact-pleading jurisdiction[.]” Commonwealth by Shapiro v. Golden
Gate Nat’l Senior Care LLC, 194 A.3d 1010, 1029 (Pa. 2018). The material
facts upon which a defense is based “shall be stated in a concise and summary
form.” Id., citing Pa.R.Civ.P. 1019(a) (stating that, “[t]he material facts on
which a cause of action or defense is based shall be stated in a concise and
summary form”). “While our rules require the pleading of all material facts
upon which claims[, and defenses,] are based, there is no requirement to
plead the evidence upon which the pleader will rely to establish those facts.”
Golden Gate, 194 A.2d at 1029 (citation omitted).
“The statute of limitations is an affirmative defense which must be
specifically pleaded[,] or the defense is waived.” Tanner v. Allstate Ins.
Co., 467 A.2d 1164, 1168 (Pa. Super. 1983) (citations omitted); see also
Marucci v. Lippman, 177 A.2d 616, 617 (Pa. 1962). An affirmative defense,
including a statute of limitations defense, may not be raised by general
averment but, rather, must be supported by factual allegations sufficient to
give rise to the affirmative defense. Falcione v. Cornell Sch. Dist., 557 A.2d
425, 428 (Pa. Super. 1989) (stating that, “[a]n affirmative defense is
distinguished from a denial of facts which make up the plaintiff's cause of
- 29 -
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action in that a defense will require the averment of facts extrinsic to the
plaintiff's claim for relief”).
Here, a review of Appellant’s answer and new matter to the Ajayis’
counterclaims demonstrates that Appellant pleaded the statute of limitations
defense as follows:
117. [Appellant, plaintiff before the trial court,] raises the
affirmative defense of the statute of limitations.
Appellant’s Reply to New Matter and Answer to Counterclaim with New Matter,
9/18/17, at ¶117.
We concur with the trial court that Appellant failed to plead a statute of
limitations defense with sufficient specificity. See Trial Court Opinion,
9/24/19, at 8. Here, Appellant alluded to the defense in a single, threadbare
declaratory sentence which suggested, without factual elaboration or support,
that the Ajayis’ counterclaims may be barred by the limitations period.22
Appellant failed to comply with Rule 1030(a) because the averments contained
in his new matter did not convey the factual underpinnings upon which his
statute of limitations defense rested. Therefore, Appellant waived the statute
of limitations defense. Consequently, Appellant’s third issue is without merit.
____________________________________________
22 Appellant sent his last invoice to the Ajayis on April 1, 2011, and maintained
keys to the property until April 13, 2011. El-Gharbaoui, 2018 WL 1528354,
at *1. The Ajayis did not file their counterclaim in the case sub judice until
August 26, 2017.
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In his final issue, Appellant challenges the non-jury verdict, and
requests a vacation of judgment, on the grounds that “the [t]rial [c]ourt based
its determination[, in favor of the Ajayis,] on inadmissible evidence and
[witness testimony] deemed [not] to [] be credible.” Appellant’s Brief at
26-31.
We begin by addressing Appellant’s challenge to the admissibility of
evidence, for which our standard of review is well-settled.
Questions concerning the admissibility of evidence are within the
sound discretion of the trial court[,] and we will not reverse a trial
court's decision concerning admissibility of evidence absent an
abuse of the trial court's discretion. An abuse of discretion is not
merely an error of judgment[ but, rather, is] the overriding or
misapplication of the law, or the exercise of judgment that is
manifestly unreasonable, or the result of bias, prejudice, ill-will[,]
or partiality, as shown by the evidence of record. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused[,] and it is the duty of the appellate court
to correct the error.
Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation
omitted), appeal denied, 244 A.3d 1222 (Pa. 2021). In order to preserve a
challenge to the admissibility of evidence for appellate review, Pennsylvania
Rule of Evidence 103(a)(1) requires a party to make “a timely objection,
motion to strike, or motion in limine” that “states the specific ground” for the
objection. See Pa.R.E. 103(a)(1)(A) and (B).
Here, Appellant argues that the trial court erred in admitting into
evidence the Ajayis’ trial exhibits (Exhibits D1 through D11) because the
Ajayis’ counsel failed to submit the trial exhibits in accordance with
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Philadelphia Rule of Judicial Administration 1900, which requires exhibits to
be uploaded to an electronic filing system within five days of the conclusion of
the trial. Appellant’s Brief at 27. Appellant also argues that certain additional
trial exhibits offered by the Ajayis should not have been admitted because
they were not properly authenticated. Appellant’s improper authentication
challenge extends to the following exhibits: (1) Exhibit D1, which included
architectural drawings of the property, (2) Exhibit D10, which was the contract
the Ajayis executed with another construction company, Ollymann
Construction, Inc., to complete “existing foundation underpinning” at the
property, and (3) Exhibit D11, which included proof of payment to Ollymann
Construction, Inc. for work performed pursuant to its contract. Id. at 29.
A review of the record demonstrates that, on December 18, 2018,
counsel for both parties acknowledged that the exhibits admitted at trial were
to be filled electronically with the trial court within five days of the conclusion
of the trial. See Trial Exhibit List, 12/18/18, at 3. The non-jury trial concluded
on December 18, 2018, and both parties had until December 24, 2018, to file
their respective exhibits.23 The trial court docket reveals that the Ajayis
electronically filed Exhibits D1 through D11 with the trial court on December
25, 2018. The trial court docket further demonstrates that Appellant failed to
____________________________________________
23 Five days after the conclusion of the non-jury trial was Sunday, December
23, 2018. Therefore, the parties had until December 24, 2018 to file copies
of the admitted exhibits electronically with the trial court. See 1 Pa.C.S.A.
§ 1908, supra.
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lodge an objection on the record raising the Ajayis’ alleged failure to comply
with Philadelphia local rule 1900. Because Appellant failed to raise this issue
with the trial court, the issue is waived, and Appellant is prohibited from
raising this issue for the first time on appeal. Pa.R.A.P. 302(a) (stating,
“[i]ssues not raised in the trial court are waived and cannot be raised for the
first time on appeal”).
Regarding Appellant’s argument that Exhibits D1, D10, and D11 were
not properly authenticated and, therefore, inadmissible, Appellant needed to
challenge the authenticity of these materials when they were introduced at
trial or when they were admitted into evidence. Pa.R.E. 103(a)(1). The
certified record, however, does not contain a transcript of the trial. It is
incumbent upon the party relying on certain materials to ensure that a
complete record is forwarded to this Court and to take any necessary steps to
correct omissions from the record to facilitate proper review of the issues.
Erie Ins. Exch. v. Moore, 175 A.3d 999, 1006 (Pa. Super. 2017). A copy of
the trial transcript, however, appears in Appellant’s reproduced record.
Generally, we may not consider documents contained in the reproduced record
if they were never filed with the trial court. Id. at 1007 n.10. The Ajayis,
however, did not object to the inclusion of the transcript as part of Appellant’s
reproduced record and, in fact, cited to the transcript in their brief. See The
Ajayis’ Brief at 21. The trial court, in its Rule 1925(a) opinion, explained that
Appellant failed to contemporaneously object to the introduction or admission
of these exhibits thereby preserving this issue for review. Trial Court Opinion,
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9/24/19, at 9. We will, therefore, assume that the transcripts were in fact
filed with the trial court even though they were not included as part of the
certified record.
A review of the transcript contained in the reproduced record
demonstrates that when Exhibits D1, D10, and D11 were introduced at trial,
Appellant failed to raise an objection to each exhibit, including an objection
that each exhibit was not properly authenticated. N.T., 12/17/18, at 192,
211-212.24 When the testimony of the witnesses concluded, the trial court
asked Appellant’s counsel if there were any objections to the admission of
Exhibits D1 through D14. Appellant’s counsel indicated that there were no
objections beyond the standing objection that some documents had been
previously submitted in the mechanics’ lien action and ruled on as part of that
litigation. N.T., 12/18/18, at 97. The trial court, thereupon, admitted Exhibits
D1 through D14 noting that there were no objections. Id. Because Appellant
failed to lodge an objection to the admission of Exhibits D1, D10, or D11
contemporaneous with their introduction at trial or their admission into
evidence, we find that Appellant waived this issue for review.
Finally, Appellant argues that the trial court erred in finding Pastor
Ekpin’s testimony credible and Appellant’s testimony incredible when it
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24 The transcripts from both days of the trial proceedings are dated December
18, 2018. The trial court indicated, and the record supports, that the first day
of trial occurred on December 17, 2018, and the second day of trial occurred
on December 18, 2018. See Trial Court Opinion, 9/24/19, at 2. We will refer
to each transcript by the date upon which the events occurred.
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awarded the Ajayis $15,000.00 in the counterclaim for violation of HICPA and
UTPCPL. Appellant’s Brief at 30. Appellant contends that the trial court was
bound by the prior trial court’s credibility determinations in the mechanics’
lien action, which found Appellant’s testimony to be credible. Id. (asserting
that, the prior trial court “found [Appellant’s testimony credible and largely
found [the Ajayis’] testimony to be inconsistent and not believable”).
When reviewing a verdict in a non-jury trial, this Court “will respect a
trial court's findings with regard to the credibility and weight of the evidence
unless the appellant can show that the [trial] court's determination was
manifestly erroneous, arbitrary and capricious[,] or flagrantly contrary to the
evidence.” J.J. DeLuca Co., Inc. v. Toll Naval Assocs., 56 A.3d 402, 410
(Pa. Super. 2012). “The test is not whether this Court would have reached
the same result on the evidence presented, but rather, after due consideration
of the evidence the trial court found credible, whether the trial court could
have reasonably reached its conclusion.” Gutteridge v. J3 Energy Group,
Inc., 165 A.3d 908, 916 (Pa. Super. 2017) (citation omitted).
In the case sub judice, the trial court found,
Pastor Ekpin testified credibly that he and a crew of volunteers
and paid day[-]laborers performed all of the excavation [work]
after [Appellant] had permanently ceased work on the project in
February [] 2011 and that [Appellant] had done none of the
excavation [work] required by the contract.
Trial Court Findings of Fact and Conclusions of Law, 1/29/19, at ¶20
(extraneous capitalization omitted). The trial court further found that, “[o]n
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November 25, 2011, [the Ajayis] contracted with Ollymann Construction, Inc.,
to complete ‘Existing Foundation Underpinning’ that [Appellant] failed to
complete.” Id. at ¶22. The trial court awarded the Ajayis $15,000.00 in the
counterclaim because this was the amount the Ajayis paid Ollymann
Construction, Inc. to complete the work that was not completed by Appellant
pursuant to the terms of the parties’ contract. Id. at ¶17.
Appellant’s argument invites this Court to reassess the witnesses’
credibility and reweigh the evidence in an attempt to reach a result different
than the one reached by the trial court, as fact-finder. We decline Appellant’s
invitation. Gutteridge, 165 A.3d at 916 (stating that, “[a]ssessments of
credibility and conflicts in evidence are for the trial court to resolve[. T]his
Court is not permitted to reexamine the weight and credibility determinations
or substitute our judgments for those of the factfinder” (citation omitted)).
Based upon the record before us, we discern no abuse of discretion on the
part of the trial court based upon Appellant’s claim that the verdict was against
the weight of the evidence. Therefore, Appellant’s claim is without merit. 25
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25 Moreover, Appellant’s mechanics’ lien action was premised upon the Ajayis’
failure to make payment in the amount of $22,000.00, as detailed in the April
1, 2011 invoice, which, as described by Appellant in the invoice, included labor
and materials associated with, inter alia, 80% of the required excavation work
and 85% of the foundation work. In the instant case, the Ajayis’ counterclaim
is based upon Appellant’s failure to complete excavation and foundation work
pursuant to the terms of the contract, and the Ajayis’ need to retain a second
contractor to complete the work. We find no merit to Appellant’s contention
that the trial court in the case sub judice is bound by the credibility
determinations made by the trial court in the mechanics’ lien action, and in
particular with regard to Paster Ekpin, who did not testify in the mechanics’
lien action.
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In sum, for the reasons set forth herein, we affirm the judgment, in
part, as it pertains to the award of $15,000.00 in favor of the Ajayis for the
counterclaim. We vacate the judgment, in part, as it pertains to the award in
favor of the Ajayis for attorney’s fees in the amount of $9,942.22. We remand
this case to the trial court for further proceedings consistent with this opinion.
Judgment affirmed, in part, and vacated, in part. March 3, 2020 Order
vacated. Case remanded. Jurisdiction relinquished.
Judge Strassburger did not participate in the consideration or decision
of this case.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/20/2021
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