Hempt Bros, Inc. v. Myers, A. ( 2021 )

J-A05028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
HEMPT BROS, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALLAN A. MYERS, L.P., ARCH :
INSURANCE COMPANY, AND :
SAFECO INSURANCE COMPANY OF : No. 1009 EDA 2020
AMERICA :
:
Appellant :
:
----------------------------------------- :
ALLAN A. MYERS, L.P. :
v. :
:
:
HEMPT BROS, INC. :
Appeal from the Judgment Entered March 6, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2012-14292,
No. 2014-00307
HEMPT BROS, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ALLAN A. MYERS, L.P., ARCH : No. 1018 EDA 2020
INSURANCE COMPANY, AND SAFECO :
INSURANCE COMPANY OF AMERICA - :
--------------------------------------- :
ALLAN A. MYERS, L.P. :
v. :
:
:
HEMPT BROS, INC. :
:
J-A05028-21
Appellant :
Appeal from the Judgment Entered March 6, 2020
In the Court of Common Pleas of Montgomery County Civil Division at
No(s): No. 2012-14292,
No. 2014-00307
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY NICHOLS, J.: Filed: October 28, 2021
Appellants/Cross-Appellees Allan A. Myers, L.P., Arch Insurance
Company, and Safeco Insurance Company of America (collectively, Myers)
appeal from the final judgment entered in favor of Appellee/Cross-Appellant
Hempt Bros., Inc. (Hempt), following a jury trial and the resolution of post-
trial motions in these consolidated actions. Myers challenges (1) the trial
court’s denial of its motion for summary judgment; (2) the trial court’s denial
of Myers’ proposed jury instruction concerning total cost damages, (3) the
jury’s findings concerning damages in four of the eight claims, and (4) the
trial court’s denial of its motion for compulsory non-suit. In its cross-appeal,
Hempt challenges the pre-judgment interest aspect of the judgment. For the
reasons set forth herein, we affirm in part and reverse in part the trial court’s
decision on Myers’ post-trial motion, vacate the judgment, and remand this
matter for a new trial limited to Hempt’s damages for overtime for excessive
handwork. Because our decision in Myers’ appeal sets aside the judgment,
we dismiss Hempt’s cross-appeal as premature.
____________________________________________
* Former Justice specially assigned to the Superior Court.
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The trial court summarized the background of these cases as follows:
[O]n August 28, 2009, the Commonwealth of Pennsylvania,
[Myers], and the Pennsylvania Department of Transportation
(“PennD[OT]”) entered into a contract for the reconstruction of a
segment of I-476 (also known as the “Blue Route”) located in
Montgomery County, Pennsylvania (the “Project”). Myers was the
general contractor for the Project. On January 26, 2010, [Hempt]
and Myers entered into a written agreement (the “Subcontract”),
in which Hempt agreed to perform specific areas of concreate
paving work for the mainline and ramps of I-476 from the
Schuylkill Expressway to the Mid-County Interchange of the
Pennsylvania Turnpike. Hempt was a subcontractor to Myers for
the Project pursuant to the terms and conditions of the
Subcontract Agreement. Arch Insurance Company (“AIC”) and
Safeco Insurance Company of America (“Safeco”) were Myers’
payment and performance bond sureties that furnished statutorily
required payment bonds for the project to guarantee the payment
of materials and labor supplied or performed on the Project.
Liberty Mutual is the successor or assignee of Safeco and as such
is obligated to pay or defend claims made against the Safeco
Bond.
On or about June 1, 2012, Hempt filed a Complaint against
[Myers] and Liberty Mutual for breach of contract, unjust
enrichment and failure of the sureties to make payments to Hempt
for work done for the Project.[1] On July 11, 2013, Hempt filed a
Second Amended Complaint against [Myers]. The Amended
Complaint included more specificity regarding the factual
averments supporting the breach of contract claim. The
Complaint contained three counts: (I) breach of contract against
Myers, (II) breach of AIC’s bond, and (III) breach of Safeco’s
bond. The breach of contract claim consisted of two categories:
____________________________________________
1 Hempt’s action against Myers was docketed at 2012-14292 in the trial court.
Although Hempt initially named Liberty Mutual Insurance Company as a party,
the trial court entered an order sustaining preliminary objections, noting that
“[u]pon agreement of all the parties, all claims against Liberty Mutual
Insurance Company are dismissed,” and directing Hempt to file an amended
complaint. Order 10/2/12. Hempt did not name or caption Liberty Mutual
Insurance Company as a party in its amended complaints. As discussed
below, the judgment entered at 2012-14292 disposed of all remaining parties
and claims. See Pa.R.A.P. 341(a), (b)(1).
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claims for additional costs incurred performing subcontract work,
including, 1) failing to pay for overtime for excessive handwork,
2) increased costs on account of the batch plant, 3) increased
forming and placing costs for concrete paving work, 4) cold
weather work, 5) lost production at Plymouth Creek Bridge, 6)
concrete overruns, 7) extra grinding work, as well as 8) claims for
unpaid estimates. Hempt’s claims against AIC and Safeco arose
out of their refusal to pay Hempt on behalf of their principal,
Myers. Myers filed preliminary objections to the Second Amended
Complaint, which the [trial c]ourt denied. On December 20, 2013,
Myers filed an Answer to the Second Amended Complaint with
New Matter and Counterclaim. On December 22, 2017, Myers
filed a Motion for Summary Judgment, which was denied by the
Court on August 14, 2018.
On January 6, 2014, [Allan A. Myers, L.P.] initiated a separate
action against Hempt in the Montgomery County Court of Common
Pleas, case no. 2014-00307 [(2014-00307),] by writ of summons.
On July 28, 2017, [Allan A. Myers, L.P.] filed a Complaint against
Hempt containing two counts: (1) breach of contract, and (2)
quantum meruit. The breach of contract claim was based on
alleged inefficiencies of Hempt in failing to timely and fully perform
in accordance with the Subcontract and “actively interfering with
[Allan A. Myers, L.P.’s] operations on the project[.]” On
November 3, 2017, Hempt filed an Answer with New Matter and
Counterclaim. [Allan A. Myers, L.P.] filed preliminary objections
to Hempt’s counterclaim based on pendency of a prior action. By
Order dated January 18, 2018, the [trial c]ourt sustained [Allan
A. Myers, L.P.’s] preliminary objections to Hempt’s counterclaim
and defense of setoff in part, on the basis of pendency of a prior
action, and consolidated the two, related cases. The [c]ourt
directed [Allan A. Myers, L.P.] to respond to Hempt’s Counterclaim
and New Matter within twenty days after notice of the Order, or,
alternatively, for Hempt to withdraw them, in whole or in part, as
duplicating claims set forth in the prior, now consolidated action.
The two cases were consolidated and proceeded to a two-week
trial before a jury between October 28, 2019 through November
7, 2019; Hempt’s claims for breach of contract were presented
before the jury and Myers’ claims of breach of contract also went
to the jury.
Trial Ct. Op., 8/3/20, at 1-3 (record citations omitted).
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We add that Hempt’s and Myers’ respective actions claimed the other
party was responsible for delays and other damages during the Project.
Specifically, Hempt asserted at trial that Hempt and Myers agreed to negotiate
special payments for the “handwork” Hempt needed to complete the concrete
work because they could not anticipate the amount of handwork involved
when they entered into the Subcontract.2 See, e.g., N.T. Charge Conference,
Closings, Charge (Excerpted Transcript), 11/7/19, at 39.3 Among other
problems during the Project, Hempt referred to Myers’ failures to provide a
three-and-one-half foot “track line”4 to permit the operation of Hempt’s
“slipform” machinery,5 a site for a concrete batch plant, and access to bridges.
According to Hempt, these problems resulted in the need for more expensive
handwork and other inefficiencies. See id. Myers, in turn, asserted that
Hempt breached its obligations under the Subcontract, which resulted in a loss
____________________________________________
2 Myers disputed Hempt’s interpretation of the Subcontract at trial.
However,
on appeal, Myers does not challenge Hempt’s interpretation of the contract or
the jury’s findings that Myers breached an agreement with Hempt.
3 Specifically, Hempt’s counsel argued in closing statements that the “question
about the concrete paving notes and the 3-foot 6-inch track line permeates
almost the entire case, because almost all of the requests for payment that
Hempt . . . made is for something that relates to handwork which the contract
says will be paid specially.” N.T. Charge Conference, Closings, Charge at 39.
4 See N.T., Testimony of Max Hempt, 10/28/19, at 24 (defining a track line
as the space need for the tracks of a concrete paving machine to straddle the
area being paved).
5 See, e.g., id. at 24 (identifying pictures of concrete paving machines as
“slipform pavers”).
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in the value of its claims against PennDOT and additional costs to complete
Hempt’s work.6
On November 8, 2019, the jury issued verdicts of $1,735,000 for Hempt
and $665,000 for Myers. In Hempt’s action against Myers at 2012-14292, the
jury provided the following relevant answers on the verdict sheet:
3. Do you find that Allan A. Myers, L.P. breached the contract by
failing to pay Hempt Bros. overtime for excessive handwork on
the project?
[Answer: Yes]
3A. State the amount of damages you award to Hempt Bros. for
overtime for excessive handwork:
[Answer: $210,000]
* * *
5. Do you find that Allan A. Myers, L.P. breached the contract by
failing to pay Hempt Bros. for increased forming and placing costs
for the concrete paving work on the project?
[Answer: Yes]
5A. State the amount you award Hempt Bros. for failing to pay
Hempt Bros. for increased forming and placing costs for the
concrete paving work on the project?
[Answer: $530,000]
6. Do you find that Allan A. Myers, L.P. breached the contract by
failing to pay Hempt Bros. for cold weather work?
[Answer: Yes]
6A. State the amount of damages you award Hempt Bros. for
failing to pay Hempt Bros. for cold weather work:
____________________________________________
6 The parties and the trial court also refer to the additional costs that Myers
assessed against Hempt as “backcharges.” See Hempt’s Brief at 14; Myers’
Brief at 29; Trial Ct. Op. at 23 n.6.
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[Answer: $126,000].
* * *
10. Do you find that Allan A. Myers, L.P. breached the contract by
failing to pay for unpaid estimates?
[Answer: Yes]
10A. State the amount of damages you award Hempt Bros. for
failing to pay for unpaid estimates:
[Answer: $700,000].
Verdict Sheet, 11/8/19, at 1-2, 4.
In Allan A. Myers, L.P.’s consolidated action against Hempt, the jury
answered the verdict sheet as follows:
12. Do you find that Hempt Bros. breached its contract with Allan
A. Myers, L.P.?
[Answer: Yes]
* * *
14. State the amount of damages you award to Allan A. Myers,
L.P. for breach of contract?
[Answer: $665,000]
Id. at 5.7
____________________________________________
7 The following table combines the tables in Myers’ brief, see Myers’ Brief at
12, 14, and compares the claims and damages requested in Hempt’s second
amended complaint and the jury’s award:
Claim Hempt’s Request Jury’s Verdict
1. Overtime for excessive handwork $210,000 $210,000
2. Absence of batch plant $80,000 $40,000
3. Increased forming and placing $530,000 $530,000
costs
(Footnote Continued Next Page)
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After the resolution of the parties’ post-trial motions and motions for
pre-judgment interest, Myers praeciped for the entry of a single judgment
against it and in favor of Hempt for $1,595,216 plus interest from the date of
the judgment.8 On March 6, 2020, the clerk of the court entered the total
judgment at 2012-14292.
____________________________________________
4. Cold weather work $126,000 $126,000
5. Lost production Plymouth Bridge $40,000 $40,000
6. Concrete overruns $21,000 $21,000
7. Extra grinding $130,000 $68,000
8. Unpaid estimates $1,069,000 $700,000
See also Hempt’s Second Am. Compl., 7/11/13, at 12, 15, 17-19, 21, 23-24;
Verdict Sheet at 1-4. We note that the parties refer to Hempt’s claims by the
number indicated in the above table. See, e.g., Myers’ Brief at 9-10 (referring
to “forming and placing costs” as “claim 3” and overtime for “excessive
handwork” as “claim 1”).
8 Relevant to the single judgment in this case, Myers attached to its praecipe
for entry of judgment several of the trial court’s post-trial orders, including:
(1) a December 11, 2019 order granting Myers’ motion for pre-judgment
interest but denying all Myers’ other post-trial motions; (2) a separate
December 11, 2019 order granting Hempt’s motion for pre-judgment interest
on $1,797,000; (3) a January 9, 2020 order granting Myers’ motion for
reconsideration, vacating the December 11, 2019 order for pre-judgment
interest for Hempt, and recalculating pre-judgment interest for Hempt based
on the jury’s total verdict in favor of Hempt. Myers also attached to its
praecipe a table subtotaling the additions of pre-judgment interest to Hempt’s
total verdict and Myers’ verdict and then subtracting the Myers’ subtotal from
Hempt’s subtotal. See Praecipe to Enter J., 3/6/20, at 2.
The judgment on the docket at 2012-14292, reflects the following: (1) the
total $1,735,000 verdict in favor of Hempt and against Myers; (2) the
$665,000 verdict in favor of Allan A. Myers, L.P. and against Hempt, (3) the
above-mentioned post-trial orders; and (4) the total judgment of $1,595,216
in favor of Hempt and against Myers.
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Myers timely filed a notice of appeal on March 12, 2020, and Hempt
timely cross-appealed on April 1, 2020.9 See Pa.R.A.P. 903(a)-(b). Myers
and Hempt complied with the trial court’s order to file and serve Pa.R.A.P.
1925(b) statements, and the trial court filed a responsive opinion.
Myers’ Appeal
At 1009 EDA 2020, Myers presents six issues that we have reordered
for our review:
1. Whether the trial court erred in denying [Myers’] motion for
summary judgment on the basis of [Hempt’s] failure to comply
with express, mandatory written notice requirements in the
parties’ Subcontract?
2. Whether the trial court erred by failing to give the jury an
instruction on the “total cost method” of calculating
construction damages with respect to [Hempt’s] claim for
increased forming and placing costs (claim 3)?
3. Whether the trial court abused its discretion in failing to enter
a judgment notwithstanding the verdict, remittitur or a new
trial on [Hempt’s] claims for increased forming and placing
costs (claim 3) and cold weather work (claim 4) where the
jury’s awards of 100% of each claim were not supported by the
evidence?
____________________________________________
9 The single judgment docketed at 2012-14292 resolved issues at both the
2012-14292 and 2014-00307 trial court docket numbers. Although
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), generally requires the
appealing parties to file separate notices of appeal at each docket, the trial
court’s prothonotary closed the 2014-00307 docket and refused Myers’
attempt to file separate notices of appeal at each case. Myers’ Response to
Rule Show Cause, 6/18/20, at 5-6. The prothonotary’s refusal to file the
separate notice of appeal constitutes a breakdown, and we decline to quash
Myers’ appeal. See Always Busy Consulting, LLC v. Babford & Co., Inc.,
247 A.3d 1033, 1042 (Pa. 2021). Further, because it appears the
prothonotary refused to accept filings at the 2014-00307, we also decline to
quash Hempt’s cross-appeal. Cf. id.-9-
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4. Whether the trial court erred and/or abused its discretion by
denying [Myers’] motion for a judgment notwithstanding the
verdict, or alternatively for a new trial, on [Hempt’s] claims for
unpaid estimates (claim 8) in the amount of $1,069,000 where
[Hempt’s] evidence was speculative, inaccurate and failed to
account for payments made by Allan A. Myers, L.P.?
5. Whether the trial court erred or abused its discretion by failing
to enter a judgment notwithstanding the verdict, remittitur
and/or a new trial on [Hempt’s] claim for “overtime for
excessive handwork” (claim 1) where [Hempt’s] lead witness
testified that the claim was calculated “incorrectly,” was a
“miscalculation” and “needed to be recalculated”?
6. Whether the trial court erred by failing to grant [Myers’] motion
for compulsory nonsuit on [Hempt’s] claim for unpaid
estimates (claim 8)?
Myers’ Brief at 9-10.
Summary Judgment
Myers contends that the trial court erred in denying its motion for
summary judgment to dismiss six of Hempt’s eight claims for damages.10
Myers’ Brief at 58. According to Myers, Hempt admitted that it failed to comply
with the notice provision of the Subcontract, and Hempt’s response to the
summary judgment motion did not raise any issues for trial. Id. at 58-62.
Further, Myers contends that the trial court failed to consider the entire notice
provision and improperly relied on principles from the Uniform Commercial
Code. Id. at 58. Myers concludes that its summary judgment motion was
____________________________________________
10 Specifically, Myers contends that it was entitled to summary judgment on
Hempt’s claims for overtime for excessive handwork, the absence of batch
plant, forming and placing costs, cold weather work, lost production, and extra
grinding. Myers notes that the trial court denied summary judgment without
explanation and that the court offered its reasons for the first time in its Rule
1925(a) opinion.
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based on well-established construction law that the notice provision barred
most of Hempt’s claims. Id. at 64-65.
Hempt notes that it responded to Myers’ motion for summary judgment
by arguing that the notice provision did not apply to the extra work within the
contract and that Myers had actual notice of Hempt’s claim. Id. at 57. Hempt
asserts that the issue of the notice provision was litigated fully at trial and that
the jury ruled against Myers. Id. at 58. According to Hempt, “Now that [it]
has won at trial, it is a metaphysical impossibility that at the summary
judgment stage the facts could have been undisputed with no issue of material
fact . . . .” Hempt’s Brief at 57-58.
In its Rule 1925(a) opinion, the trial court states several reasons for
denying Myers’ summary judgment motion. First, the trial court asserts that
issues of fact warranted “the matter to go to trial on the question of whether
Hempt was required to comply with the terms of [the notice provision] of the
Subcontract for the unforeseen handwork which was ‘to be negotiated’ and
was not explicitly contemplated by the contract.” Trial Ct. Op. at 7. The court
reasons, that Hempt’s claim for overtime “was not contemplated by the
Subcontract and/or outside its scope.” Id.
Second, the trial court cites the Uniform Commercial Code and refers to
Hempt and Myers’ “course of performance.” Id. at 8. The court notes that
Myers failed to object based on the notice provision despite “multiple
opportunities to do so,” and accepted Hempt’s work. Id.
The principles governing our review are well settled:
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Our scope of review is plenary, and our standard of review
is the same as that applied by the trial court. Our Supreme
Court has stated the applicable standard of review as
follows: An appellate court may reverse the entry of a
summary judgment only where it finds that the lower court
erred in concluding that the matter presented no genuine
issue as to any material fact and that it is clear that the
moving party was entitled to a judgment as a matter of law.
In making this assessment, we view the record in the light
most favorable to the non-moving party, and all doubts as
to the existence of a genuine issue of material fact must be
resolved against the moving party. As our inquiry involves
solely questions of law, our review is de novo.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts
are undisputed or contains insufficient evidence of facts to
make out a prima facie cause of action, such that there is
no issue to be decided by the fact-finder. If there is
evidence that would allow a fact-finder to render a verdict
in favor of the non-moving party, then summary judgment
should be denied.
With respect to the denial of summary judgment, we review the
trial court’s denial of summary judgment for an abuse of discretion
or error of law.
* * *
A contract is ambiguous if it is reasonably susceptible of
different constructions and capable of being understood in
more than one sense. The reasonably qualifier is important:
there is no ambiguity if one of the two proffered meanings
is unreasonable. Furthermore, reviewing courts will not
distort the meaning of the language or resort to a strained
contrivance in order to find an ambiguity. Finally, while
ambiguous writings are interpreted by the finder of fact,
unambiguous ones are construed by the court as a matter
of law.
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Windows v. Erie Ins. Exch., 161 A.3d 953, 956-57 (Pa. Super. 2017)
(citations omitted and formatting altered).11
Instantly, the Subcontract provided as follows:
1. Agreement
The SUBCONTRACTOR agrees to furnish all material and perform
all work and labor and furnish all tools, equipment and all things
necessary for the proper execution of this Subcontract in such a
manner as to comply fully with the requirements of the ‘Contract
Documents’ as herein defined. The ‘Contract Documents’ for this
Subcontract consist of this Subcontract and any Exhibits attached
hereto, all Work required of the SUBCONTRACTOR . . . WITH THE
EXCEPTION OF CERTAIN HANDWORK AND 18 FOOT WIDTH
PAVING [italics indicate handwriting].
* * *
1.2 CONTRACTOR RESPONSIBILITIES
* * *
1.2.5 If necessary and available, SUBCONTRACTOR can utilize
bridges to access paving areas in a manner that will ensure no
damage to the structure. UNFORESEEN HAND-WORK TO BE
NEGOTIATED.
* * *
4. CHANGES
____________________________________________
11 This Court has not expressly discussed the issue of mootness and the
procedures necessary to preserve an appeal to the denial of summary
judgment after litigation at trial. See Pa.R.C.P. 227.1. But see
Sampathkumar v. Chase Home Fin., LLC, 241 A.3d 1122, 1135 (Pa. Super.
2020), appeal denied, 22 WAL 2021, 2021 WL 2327884 (Pa. 2021). We add
that here, Myers did not preserve its challenge based on the notice provision
in its post-trial motions. However, we will address the merits of Myers’ claim.
See Windows, 161 A.3d at 957-60.
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* * *
Any claim by Subcontractor that any change, changed condition,
event or occurrence has affected or will affect in any fashion the
work of the Subcontractor, including the time and cost of
performance of the work, will be disallowed and is hereby
expressly waived by the Subcontractor unless the Subcontractor
provides (1) written notice of the change, event or occurrence and
impact thereof to the Contractor within seventy two (72) hours of
the change, event or occurrence; (2) an estimate of the cost and
time impact of the change, event or occurrence; and (3) proper
written notice is provided by the Subcontractor to the Contractor
before any work is performed relating to the change, event or
occurrence. Subcontractor hereby waives any claim for costs or
time extensions to the extent it has not fully compiled with the
requirements of this paragraph.
R.R. at 269a, 271a, 274a-75a.
Based on the foregoing, we discern no error in the trial court’s conclusion
that genuine issues of material fact remained. The inclusion of “with the
exception of certain handwork” in Paragraph 1 renders the requirements and
application of Paragraph 4 ambiguous, because the phrase “certain handwork”
was not defined and requirement for notice for “certain handwork” was open
to several reasonable interpretations. See Windows, 161 A.3d at 956-57.
Therefore, it was within the province of the finder of fact—here, the jury—to
determine the meaning of the phrase “certain handwork” and the application
of Paragraph 4 to that phrase. See id. Accordingly, Myers’ claim that the
trial court improperly denied summary judgment fails.
Jury Instruction
Myers next claims that the trial court erred in denying its request for a
jury instruction explaining the elements of “total cost.” Myers’ Brief at 22. By
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way of background, Myers cited John F. Harkins Co. v. Sch. Dist. of Phila.,
460 A.2d 260 (Pa. Super. 1983) (Harkins), and requested the following jury
instruction in support:
Under the law, the amount of damages suffered by a party need
not be proven with mathematical certainty to sustain an award in
favor of that party. A party can use different methods to calculate
and prove its damages.
In this case, [Hempt] has presented a claim in the amount of
approximately $349,000 for increased costs for forming and
placing concrete paving on the project. For this claim, Hempt
elected to use the “total cost method” to calculate its damages.
The law has certain requirements when the total cost method is
used. The total cost method of calculating damages is generally
disfavored in Pennsylvania. The method has been allowed only
when no other method is available and when the reliability of the
supporting evidence was fully substantiated.
In order to recover damages under the total cost method, the
party seeking the damages must prove certain elements. The
required elements for the total cost method are as follows: (1) the
nature of the particular losses make it impossible or highly
impracticable to determine them with a reasonable degree of
accuracy; (2) [Hempt’s] bid or estimate was realistic; (3) its
actual costs were reasonable; and (4) [Hempt] was not
responsible for the added expenses.
[Hempt] can recover damages on its claim for increased forming
and placing costs only if you find that [Hempt] has proven each of
the elements that I just listed for you. If you find that [Hempt]
has not proven all of the elements, then I instruct you that
[Hempt] is not entitled to an award of damages on its claim for
increased forming and placing costs and you must find in favor of
[Myers] on this claim.
Myers’ Proposed Jury Instruction 13.
At the charging conference, the trial court denied Myers’ requested
instruction. The court stated that “there was no clear establishment or
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contradiction to the methodology used” to calculate Hempt’s claim for forming
and placing damages. N.T. Charge Conference, Closings, Charge at 7. Myers
objected and asserted that it was entitled to its proposed instruction
concerning total cost because “the jury has to be told what [Hempt] has to
prove to recover on that claim.” Id. at 9.
In its charge, the trial court issued the following general jury instructions
regarding damages:
If you find that a party breached the contract, you should award
an amount of money that will fairly and accurately compensate
the aggrieved party for the harm caused by the breach. Generally,
damages include the amount of money that would put the
aggrieved party in the position it would have been in if the contract
had not been breached. It includes not only damages that directly
result from the breach, but also those damages that were
foreseeable at the time the parties entered into their contract.
* * *
Now, damages must be proven by a reasonable certainty.
Damages for lost sales or profits may not be based solely on
speculation. Specific evidence must be introduced to permit a
reasonably certain estimate of the amount lost due to the breach;
however, mathematical certainty is not required. If damages are
difficult to establish, an injured party need only prove damages
with reasonable certainty and any doubt should be construed
against the breaching party.
Id. at 128, 131.
On appeal, Myers insists that Hempt calculated its damages for forming
and placing costs using the total cost method, that is, the difference between
its actual cost and its estimated cost for completing the work. Myers’ Brief at
23. Myers focuses on two trial exhibits, P-44 and P-45, concerning Hempt’s
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demand for forming and placing costs. Id. at 23-24. Myers asserts that those
exhibits establish that Hempt’s demands reflect the difference between its
actual costs and original bid. Id. at 24-27. Additionally, Myers contends that
Hempt’s witness described using a total cost method and that Myers’ expert
confirmed that Exhibits P-44 and P-45 reflected Hempt’s use of the total cost
method. Id. at 27-31.
According to Myers, the trial court misconstrued the law and the trial
record when denying Myers’ proposed total cost jury instruction, and the
absence of the instruction prevented the jury from properly considering
whether Hempt was entitled to damages and the appropriate amount of
damages. Id. at 37-41. Myers concludes the trial court should have granted
a new trial. Id. at 41.
Hempt asserts that it did not use a total cost method to determine its
damages for forming and placing. Hempt’s Brief at 50. Hempt relies on its
trial theory that the Subcontract entitled it to seek special costs for handwork
necessary to complete the concrete work when Myers failed to provide an
adequate space for Hempt to use its machinery. Id. at 47, 50. Hempt
concludes that it provided a basis for the jury to award damages based on
handwork, that the jury’s determination of the forming and placing damages
was reasonable, and that this Court should not “retry” the facts. Id. at 47,
51.
In its Rule 1925(a) opinion, the trial court concludes that it properly
denied Myers’ proposed total cost jury instruction concerning forming and
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placing costs. Trial Ct. Op. at 9. The court explains that it rejected the
instruction because it did “not want[] to mislead the jury.” Id. The court
reasons that a total cost method was not at issue at trial, noting that “although
which party bore the ultimate responsibility for what caused Hempt to incur
these expenses varied, the evidence overwhelmingly suggested that many
expenses were outside of Hempt’s control, that they were actually the result
of inefficiencies caused by Myers . . . .” Id. at 11. The court adds that
“Harkins was not a breach of contract case, as we have here, but rather a
claim for equitable adjustment of the contract price.” Id. at 11 n.2. Further,
the court notes that Myers does not assert error in its instruction directing the
jury to award damages that fairly and accurately compensate the aggrieved
party for the harm caused by the breach and that damages must be proven
by a reasonable certainty. Id. at 12.
Our review of the trial court’s denial of a motion for a new trial is well
settled: “Trial courts have broad discretion to grant or deny a new trial and,
absent a clear abuse of discretion by the trial court, appellate courts must not
interfere with the trial court’s authority to grant or deny a new trial.”
Banohashim v. R.S. Enters., LLC, 77 A.3d 14, 22 (Pa. Super. 2013) (citation
omitted and formatting altered).
Additionally, our review of jury instructions is governed by the following
principles:
Our standard of review when considering the adequacy of jury
instructions in a civil case is to determine whether the trial court
committed a clear abuse of discretion or error of law controlling
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the outcome of the case. It is only when the charge as a whole is
inadequate or not clear or has a tendency to mislead or confuse,
rather than clarify a material issue, that error in a charge will be
found to be a sufficient basis for the award of a new trial. [A]
charge will be found adequate unless the issues are not made
clear, the jury was misled by the instructions, or there was an
omission from the charge amounting to a fundamental error.
[Furthermore,] in reviewing a trial judge’s charge, the proper test
is not whether certain portions taken out of context appear
erroneous. We look to the charge in its entirety, against the
background of the evidence in the particular case, to determine
whether or not error was committed and whether that error was
prejudicial to the complaining party.
Salsgiver Commc’ns, Inc. v. Consol. Commc’ns Holdings, Inc., 150 A.3d
957, 962-63 (Pa. Super. 2016) (Salsgiver) (citations omitted and formatting
altered).
When reviewing the trial court’s refusal to give a specific instruction,
this Court must also
determine whether the record supports that decision. In fulfilling
this role, we must keep in mind that a trial court should charge on
a point of law when there is some factual support in the record for
the charge. We have stated:
The charge of the trial court should not exclude any theory
or defense that has support in the evidence. Moreover,
where there is a dispute as to what the relevant facts are,
this dispute must be submitted to the jury along with
instructions on points of law which, with a view to the
evidence in the case, are relevant.
Meyer v. Union R. Co., 865 A.2d 857, 866 (Pa. Super. 2004) (citations
omitted and formatting altered).
In Harkins, a school district appealed the trial court’s award of damages
to a contractor, which the court calculated based on the difference between a
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contractor’s total labor costs and initial bid estimate for labor. Harkins, 460
A.2d at 262. The Harkins Court noted that “the proceeding in the trial court
was not an action for breach of contract” but a “claim for an equitable
adjustment of the contract price” because the district accelerated the
completion date of the project. Id. This Court reversed the trial court’s award
and entered a judgment in favor of the district. Id. at 266.
The Harkins Court explained:
The total cost method of determining damages is inseparably
connected with the rule that the amount of damages need not be
ascertained with mathematical certainty to sustain an award in
the contractor’s favor. It is premised on the fact that where a
contractor is entitled to an adjustment, the governmental body
should not be exonerated merely because the contractor is unable
to prove his increased costs with precision. However, because the
total cost method of measuring damages is imprecise it is fraught
with danger and must be applied with caution.
This measure of damages has not been favored by the courts. It
has been tolerated only when no other mode was available and
when the reliability of the supporting evidence was fully
substantiated. The acceptability of the method hinges on proof
that (1) the nature of the particular losses make it impossible or
highly impracticable to determine them with a reasonable degree
of accuracy; (2) the plaintiff’s bid or estimate was realistic; (3) its
actual costs were reasonable; and (4) it was not responsible for
the added expenses. The necessity for showing an accurate bid
estimate prior to utilization of the total cost method is basic.
Id. at 263 (citations and formatting altered).
The Harkins Court reviewed the existing case law and concluded that
the total cost method of determining damages is imprecise and
frequently an inaccurate measure of damages. It should be used
only when the circumstances are exceptional. It should not be
used unless no other method of determining damages is available
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and, then, only when its reliability has been established by
supporting evidence.
Id. at 264 (formatting altered).
In Com., Dep’t of Transp. v. Trumbull Corp., 513 A.2d 1110 (Pa.
Cmwlth. 1986) (Trumbull),12 the Commonwealth Court considered a
PennDOT appeal from a Board of Claims award to a contractor who claimed
that PennDOT’s reduction of the quantity of work resulted in an increase in its
unit costs. Trumbull, 513 A.2d at 1111-12. PennDOT asserted on appeal
that the Board’s award of damages constituted an improper use of a variant
of the total cost method referred to as the force-account method.13 Id. at
1113. The Trumbull Court reject PennDOT’s argument, noting:
Harkins can be distinguished from the present case in two
respects. In Harkins, the school district made an equitable
adjustment which did not satisfy the contractor. The school
district did not breach its contract. In the present case, PennDOT
made no effort to compensate Trumbull for the increased costs,
thereby breaching the contract. The Board required use of the
force-account method because the breach occurred when
PennDOT failed to order the work done according to this method.
The other aspect of Harkins which distinguishes it from the
present case is that, in Harkins, the trial court used a method of
computing damages which was not in the contract. The Superior
____________________________________________
12 “This Court is not bound by decisions of the Commonwealth Court.
However, such decisions provide persuasive authority, and we may turn to
our colleagues on the Commonwealth Court for guidance when appropriate.”
Petow v. Warehime, 996 A.2d 1083, 1089 n.1 (Pa. Super. 2010) (citation
omitted).
13 “In general, force account work is additional to that called for by the
contract, ordered to be done by [PennDOT] and agreed to be paid for on a
time and material basis.” Green Const. Co. v. Dep’t of Transp., 643 A.2d
1129, 1131 n.1 (Pa. Cmwlth. 1994) (citation omitted).
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Court was expressing its concern over the use of the total cost
method when its use is not called for by the contract. In the
present case the force-account method is called for by the
contract, and PennDOT cannot now complain about the use of the
method it agreed to.
Id. at 1113.
Instantly, we conclude that the trial court’s denial of Myers’ request for
a total cost jury instruction merits no relief. Firstly, the present case is closer
to Trumbull than Harkins. The present case does not involve an equitable
adjustment from a public agency, and the jury’s verdict in this case
demonstrates that it accepted Hempt’s claim that Myers breached an
agreement to pay for certain handwork. See id. Therefore, like Trumbull,
Harkins is distinguishable from the present case.
Secondly, even if Myers’ evidence entitled it to a total cost jury
instruction, see Meyer, 865 A.2d at 866, a review of the record reveals no
basis to conclude that Myers suffered prejudice. See Salsgiver, 150 A.3d at
963. As noted by the trial court, Myers did not object to the court’s instruction
that damages for a breach of contract need not be ascertained by a
mathematical certainty, but that specific evidence must be introduced to
permit a reasonably certain estimate of the amount lost due to the breach.
See Trial Ct. Op. at 12; N.T. Charge Conference, Closings, Charge at 128,
131. Myers presented evidence, and was free to argue to the jury, that (1)
Hempt’s methodology for assessing damages for forming and placing concrete
was unreliable, (2) alternative methods for determining damages were more
accurate, (3) Hempt’s original bids were too low and its actual costs were too
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high, resulting in a claim for excessive damages, and (4) Hempt was
responsible for its own increased costs. The jury, which was properly
instructed on the standard breach of contract damages, was likewise entitled
to reject Myer’s evidence that Hempt’s evidence was too speculative and credit
Hempt’s evidence as reliable and reasonable. Therefore, because Myers has
failed to demonstrate prejudicial error in the trial court’s denial of its requested
total cost instruction under the circumstances of this case, we agree with the
trial court that a new trial on this basis is not warranted.
JNOV, New Trial, Remittitur
Next, Myers asserts that it is entitled to a judgment non obstante
veredicto (JNOV), a new trial, or remittitur on four areas of damages: (1)
forming and placing concrete, (2) cold weather work, (3) unpaid estimates,
and (4) overtime for excessive handwork.14
Standards of Review
The following principles govern our review. As to JNOV and a new trial,
we note:
A JNOV can be entered upon two bases: (1) where the movant is
entitled to judgment as a matter of law; and/or, (2) the evidence
was such that no two reasonable minds could disagree that the
verdict should have been rendered for the movant. When
____________________________________________
14 We note that Myers does not separately analyze each theory for relief, i.e.,
JNOV, new trial, and remittitur, for each area of damages.
We add that the trial court’s Rule 1925(a) opinion and Myers’ brief addressed
the damages for forming and placing concrete and for cold weather work as a
single issue. However, our review considers these damages separately, as
Hempt presented them to the jury.
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reviewing a trial court’s denial of a motion for JNOV, we must
consider all of the evidence admitted to decide if there was
sufficient competent evidence to sustain the verdict. In so doing,
we must also view this evidence in the light most favorable to the
verdict winner, giving the victorious party the benefit of every
reasonable inference arising from the evidence and rejecting all
unfavorable testimony and inference. Concerning any questions
of law, our scope of review is plenary. Concerning questions of
credibility and weight accorded the evidence at trial, we will not
substitute our judgment for that of the finder of fact. If any basis
exists upon which the [court] could have properly made its award,
then we must affirm the trial court’s denial of the motion for JNOV.
A JNOV should be entered only in a clear case.
Our review of the trial court’s denial of a new trial is limited to
determining whether the trial court acted capriciously, abused its
discretion, or committed an error of law that controlled the
outcome of the case. In making this determination, we must
consider whether, viewing the evidence in the light most favorable
to the verdict winner, a new trial would produce a different verdict.
Consequently, if there is any support in the record for the trial
court’s decision to deny a new trial, that decision must be
affirmed.
Wag-Myr Woodlands Homeowners Ass’n By Morgan v. Guiswite, 197
A.3d 1243, 1252 (Pa. Super. 2018) (citation omitted).
As to remittitur,
[o]ur standard of review from the denial of a remittitur is
circumspect and judicial reduction of a jury award is appropriate
only when the award is plainly excessive and exorbitant. The
question is whether the award of damages falls within the
uncertain limits of fair and reasonable compensation or whether
the verdict so shocks the sense of justice as to suggest that the
jury was influenced by partiality, prejudice, mistake, or
corruption. Furthermore, the decision to grant or deny remittitur
is within the sole discretion of the trial court, and proper appellate
review dictates this Court reverse such an Order only if the trial
court abused its discretion or committed an error of law in
evaluating a party’s request for remittitur.
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Renna v. Schadt, 64 A.3d 658, 671 (Pa. Super. 2013) (citations omitted and
formatting altered).
Forming and Placing Concrete
Myers challenges the reliability of Hempt’s evidence regarding the costs
of forming and placing concrete.15 Myers’ Brief at 54. Specifically, Myers
contends that Hempt’s use of an average actual cost of $13.71 per square
yard on Exhibit P-44 was unreliable because Hempt’s witness gave
inconsistent prior statements. Id. Myers notes that Hempt’s Vice President
of Operation, Albert Tompkins, testified at trial that he calculated the average
actual cost based on work at all locations. Id. Myers emphasizes that
Tompkins testified at his deposition that the $13.71 average may have been
calculated based on one bridge. Id. According to Myers, Tompkins
acknowledged the inconsistency between his trial and deposition testimony
concerning the basis of his calculation of the average actual cost. Id. at 54-
55.
Myers continues that the average actual cost was critical to the proper
determination of damages for forming and placing concrete and asserts that
“[n]o reasonable person could believe anything about the actual cost figure
because the person who made it lied in court and admitted. He said ‘black’ in
his deposition and ‘white’ in court. The entire claim should have been
rejected.” Id. at 55.
____________________________________________
15The jury separately found damages for forming and placing concrete on
Question 5A of the verdict sheet.
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Hempt responds that it provided competent evidence establishing “what
[its] unit costs were for machine paving and what its costs were for handwork
performed, that is, it relied on its bid cost for machine paving and compared
it to the actual cost of hand paving.” Hempt’s Brief at 49. Hempt does not
squarely address Myers’ focus on the inconsistency between Tompkins’ trial
and deposition testimony. See id. at 36-50.
A review of the record confirms Myers’ assertion that Tompkins gave
inconsistent trial and prior testimony concerning the basis of his $13.71 figure,
which appears on several pages of Exhibit P-44. However, contrary to Myers’
argument, the impeachment of Tompkins on this limited area does not request
the rejection of Hempt’s entire claim for damages for forming and placing
concrete. See Myers’ Brief at 55. Moreover, Myers failed to present any
alternative estimate for the work completed by Hempt or any other affirmative
evidence that Tompkins’ use of the total handwork cost of $13.71 on portions
of Exhibit P-44 was objectively unreasonable. For these reasons, Myers fails
to establish a clear basis for JNOV or an abuse of discretion in the trial court’s
decision to deny Myers’ motions for a new trial or remittitur. See Guiswite,
197 A.3d at 1252; Renna, 64 A.3d at 671. Therefore, Myers’ challenge to
the forming and placing damages merits no relief.
Cold Weather Work
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Myers next claims that Hempt’s evidence of damages for cold weather
work was speculative.16 Myers’ Brief at 55. Myers asserts that at trial, Hempt
relied on its demand letter that listed the alleged work and materials for cold
weather work. Id. Myers contends that the demand letter lacked any
substantiation such as payroll records, invoices, or bills paid. Id. Myers adds
that Hempt did not state where it allegedly performed the cold weather work.
Id.Hempt responds that the Subcontract specified a unit price for cold
weather work performed by Hempt, which it used to calculate its damages.
Hempt’s Brief at 53. Hempt emphasizes that Myers failed to ask for additional
information and seeks relief based solely on matters discussed in cross-
examination without offering direct contradicting evidence. Id. at 54.
Following our review, we conclude Myers’ arguments fail to establish any
basis for JNOV, a new trial, or remittitur. Myers challenges only the credibility
and weight of the evidence presented by Hempt. However, the jury as
factfinder was entitled to accept or reject Hempt’s evidence of the cold
weather work damages. Therefore, no relief is due as this Court will not
substitute our judgment for that of the factfinder. See Guiswite, 197 A.3d
at 1252; Renna, 64 A.3d at 671.
Unpaid Estimates
____________________________________________
16 The jury separately found damages for cold weather work on Question 6A
of the verdict sheet.
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Myers next contends that Hempt’s claim for unpaid estimates was
contrary to the evidence. Myers’ Brief at 55. Myers asserts that the evidence
clearly established that Hempt’s claim for unpaid expenses failed to account
for payments Myers issued and, therefore, Hempt’s damage claims were
inaccurate. Id. at 56. Myers focuses on Hempt’s concession at trial that it
received a check from Myers but continued to insist on a full recovery of its
original request for damages. Id. at 57.
The trial court addressed this issue as follows:
Myers’ defense points to an excerpt of [Hempt’s contracts
administrator, Kerry DeLizio’s] testimony on cross-examination
wherein he admitted that Myers paid a check of $293,721.11 to
Hempt that was not applied to the unpaid estimates. Indeed,
DeLizio admitted to deducting backcharges from the unpaid
estimates at the time he made the calculations. Notably,
however, the jury did not award the full $1,069,000 claim for
unpaid estimates. The jury awarded only $700,000 to Hempt as
damages for Myers’ failure to pay unpaid estimates. . . . In fact,
the jury compensated Myers for this error in fashioning its award.
Accordingly, there was no error or abuse of discretion in denying
Myers’ request for JNOV, new trial, or remittitur on that basis.
Trial Ct. Op. at 20.
We conclude that the trial court properly considered Myers’ issue
concerning unpaid estimates damages. Myers’ repetition of its cross-
examination and arguments to the jury in this appeal fails to establish any
error of law or abuse of discretion in the trial court’s denial of Myers’ post-trial
motions. See Guiswite, 197 A.3d at 1252; Renna, 64 A.3d at 671.
Accordingly, Myers’ challenge to the jury’s award for unpaid estimates fails.
Overtime for Excessive Handwork
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Myers also contends that the jury’s award of damages for Hempt’s claim
for overtime for excessive handwork was improper. Myers’ Brief at 42. Myers
argues that during cross-examination, DeLizio conceded that he used an
incorrect labor rate when calculating overtime for excessive handwork. Id. at
44. Specifically, Myers notes that DeLizio testified that he erroneously used
the full time-and-a half-rate in his calculations when he should have excluded
the base wage and used only the premium for overtime. Id. at 44-50. Myers
concludes that it is entitled to a new trial or remittitur on the damages for
overtime for excessive handwork. Id. at 53.
Hempt responds that Myers’ argument essentially asks this Court to
disturb the jury’s findings by reweighing the evidence. Hempt’s Brief at 52.
Hempt asserts that Myers’ cross-examination of DeLizio asked “the jury to
make an all-or-nothing determination” of damages for overtime for excessive
handwork and that the “jury chose all” by awarding Hempt all damages it
requested for this item. Id. at 51-52. Hempt continues that because its proof
of damages for overtime was sufficient, this Court should affirm. Id. at 52.
The trial court asserts that it properly denied Myers’ request for post-
trial relief. Trial Ct. Op. at 14. The court acknowledged Myers’ cross-
examination of DeLizio’s calculations of the overtime rates. Id. at 16.
However, the court describes the testimony of Hempt’s witnesses concerning
overtime costs for excessive handwork as “more nuanced” than suggested by
Myers. Id. The court concludes that “the jury likely found [Hempt’s
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witnesses] more credible” and “[b]ecause the evidence substantiated the
overall claim, the [c]ourt did not disturb the jury’s verdict.” Id. at 16-17.
Instantly, the trial record shows the following. In support of the
overtime for excessive handwork, Tompkins, Hempt’s Vice-President of
Operation, testified that he and a representative of Myers reached an
agreement that Myers would pay for overtime during a conversation at the
site of the Project.17 Hempt then presented numerous demand letters that it
sent to Myers. Those letters included: (1) a September 1, 2010 letter seeking
$147,270.91 (Exhibit P-35); (2) a February 1, 2011 letter seeking $42,376.04
(Exhibit P-42); (3) an August 4, 2011 letter seeking $9,064.79 (Exhibit P-60);
(4) a September 12, 2011 letter seeking $3,710.00 (Exhibit P-64); (5) an
October 18, 2011 letter seeking $3,876.88 (Exhibit P-71); and (6) an October
27, 2011 letter seeking $2,712.08 (Exhibit P-72).18 Hempt therefore sought,
and the jury found, $210,000.00 for overtime for excessive handwork on
Question 3A of the verdict sheet. See Verdict Sheet at 1.
During Myers’ cross-examination, DeLizio conceded the error in his
calculations that he improperly used a full time-and-a-half rate in Exhibit P-
35, Hempt’s September 1, 2010 letter seeking $147,270.91 from Myers.
Further, Myers called its expert witness, Tim Van Noy, who testified using the
full time-and-a-half rate would be improper if the work for which Hempt
____________________________________________
17 We add that Tompkins did not testify regarding the appropriateness or
accuracy of DeLizio’s calculations of the overtime payments due.
18 The amounts stated in the exhibits add to $209,010.70.
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claimed overtime fell within the scope of the Subcontract. N.T., Testimony of
Kerry DeLizio, Tim Van Noy, and Defendants’ Motion for Compulsory Nonsuit,
11/4/19, at 187. Specifically, Van Noy stated:
[I]f the work is . . . is within the scope of the contract then, in
theory, you should only claim the additional piece, the premium
portion, when you put your claim together. Because they were
going to work the base contract hour anyway. So that’s typically
how it’s done.
The only time you would ever claim both the premium and the
base portion of it is if you’re calling the work all extra work; in
other words, the hour that was worked was outside of scope and
it was worked at a premium time. So then you would claim the
entire piece.
Id. at 187-88. Van Noy stated that Hempt claimed the full time-and-a-half
rate, but that he was unable to determine whether the Hempt’s overtime work
fell within or outside the scope of the Subcontract. Id. at 188-89.
Based on this record, we are constrained to conclude that the trial court
abused its discretion when assessing the trial evidence concerning Hempt’s
damages for overtime for excessive handwork. The court asserted that Myers’
impeachment of DeLizio revealed a limited miscalculation of the overtime rate
on a few pages of Exhibit P-35. However, that exhibit alone reflected Hempt’s
demand for $147,270.91, which was over half of the entire $210,000.00
demanded by Hempt and found by the jury on Question 3A of the verdict
sheet. Compare Ex. P-35 at 1, with Hempt’s Second Am. Compl., 7/3/13,
at 12, and Verdict Sheet at 1. Moreover, nothing in DeLizio’s testimony and
Hempt’s remaining exhibits provided a reasoned basis to determine if DeLizio’s
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calculations of damages were proper as to Hempt’s demands for payments for
overtime for excessive handwork. In fact, on cross examination, DeLizio
conceded that some of his calculations were erroneous.
For these reasons, the record does not support the trial court’s decision
to deny Myers’ post-trial motion concerning the jury’s decisions to award the
full measure of damages that Hempt claimed for overtime for excessive
handwork. Even viewing the evidence in the light most favorable to Hempt
as the verdict winner, we are constrained to conclude that a new trial could
produce a different verdict than the jury’s verdict on Hempt’s requested
damages on Question 3A of the verdict sheet. Therefore, we reverse the trial
court’s order denying Myers’ post-trial motion for relief concerning the
overtime damages. Accordingly, we conclude that Myers is entitled to a new
trial on damages for overtime for excessive handwork.19 See Guiswite, 197
A.3d at 1252; see also Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410,
417 (Pa. Super. 2004) (declining to award remittitur when “it would be
arbitrary” based on the record).
Compulsory Non-Suit
____________________________________________
19 Although not meaningfully developed by Myers, we note that we discern no
error in the trial court’s decision to deny Myers’ request for JNOV to vacate
the entire award. As discussed herein we have concluded that a new trial is
required to determine Hempt’s damages for overtime for excessive handwork.
We emphasize that Myers’ appeal does not challenge the jury’s finding on
Question 3 of the verdict concerning the breach that resulted in the damages
for overtime for excessive handwork. See Verdict Sheet at 1.
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Myers also contends that the trial court erred in denying its motion for
compulsory non-suit on Hempt’s claim for unpaid estimates damages. Myers’
Brief at 57. Myers insists that Hempt’s unpaid estimates damages constituted
a liquidated claim. Id.We determine that this claim is waived. In its motion for compulsory
non-suit, Myers asserted that Hempt failed to account for Myers’ payments
and back charges. See N.T. Testimony of Kerry DeLizio, Tim Van Noy, and
Defendants’ Motion for Compulsory Nonsuit at 146-150; Myers’ Brief in
Support of Motion for Reconsideration, 11/6/19, at 2-5; N.T. Charge
Conference, 11/6/19, 14-15. Similarly, in its Rule 1925(b) statement, Myers
only asserted that “[b]ased on the evidence [Hempt] presented at trial, no
reasonable mind could differ in concluding that [Hempt’s] calculation was
inaccurate and not supported by the facts.” Myers’ Rule 1925(b) Statement,
6/1/20, at ¶5.
We have reviewed the record and find no indication that Myers claimed
that Hempt’s claim should be regard as a liquidated claim. Therefore, Myers’
appellate issue is waived.20 See Pa.R.A.P. 302(a), 1925(b)(i), (ii), (vii); see
generally Majorsky v. Douglas, 58 A.3d 1250, 1257-58 (Pa. Super. 2012).
In any event, we conclude that the trial court properly addressed Myers’
compulsory non-suit motion in its Rule 1925(a) opinion and that its thorough
____________________________________________
20 We add that Myers’ argument consists of a single paragraph of eleven lines
that cites no authority clarifying its argument that Hempt presented a
“liquidated claim.” See Myers’ Brief at 57-58; see also Pa.R.A.P. 2119.
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discussion belies Myers’ apparent assertion that Hempt presented a claim for
liquidated damages claim. See Trial Ct. Op. at 21-24. Accordingly, no relief
is due.
In sum, in Myers’ appeal at 1009 EDA 2020, we affirm the trial court’s
ruling denying Myers’ motions for summary judgment and post-trial relief
concerning damages for (1) forming and placing concrete, (2) cold weather
work, and (3) unpaid estimates. However, we conclude that the trial court
abused its discretion in denying Myers’ post-trial motion concerning damages
for overtime for excessive handwork as the jury found on Question 3A of the
verdict sheet. Accordingly, we remand this matter for a new trial limited to
determine the damages for overtime for excessive handwork. See Mader v.
Duquesne Light Co., 241 A.3d 600, 614 (Pa. 2020) (holding that when the
properly determined damages were fairy decided and sufficiently independent
of the erroneously determined damages, a court may limit the scope of a new
trial to the erroneously determined damages).
However, our decision that Myers is entitled to a limited remand for a
new trial on damages for overtime for excessive handwork upsets the
judgment entered in this case. Specifically, Myers requested a single
judgment that reflected the moldings to aggregate the total verdict in favor of
Hempt and the verdict in favor of Myers after calculating pre-judgment
interest on both verdicts. For these reasons, we vacate the single $1,595,216
judgment entered in favor of Hempt and against Myers.
Hempt’s Cross-Appeal
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Hempt presents the following question in its cross-appeal:
Since Myers had possession of more money since 2011 that it was
awarded on its offset/counterclaim, is it entitled to prejudgment
interest on the counterclaim?
Hempt’s Brief at 1.
Hempt essentially asserts that the single judgment of $1,595,216 is
inadequate because the jury’s verdict should be read as a finding that Myers
withheld from Hempt $62,000 more than Hempt owed Myers in backcharges.
Hempt’s Brief at 59. Hempt argues that the trial court should have molded
the verdicts to add $62,000 to total verdict in Hempt’s favor and against Myers
and denied Myers’ request for prejudgment on the verdict in Myers’ favor and
against Hempt.21 Id. Hempt concludes that it is entitled to the entry of a
judgment of $2,659,560, which it calculates based upon (1) jury’s total verdict
of $1,735,000 in favor of Hempt and against Myers, (2) the addition of
$62,000 that Hempt claims Myers improperly withheld as backcharges, (3)
the calculation of interest on $1,797,000, and (4) no offset for pre-judgment
interest on the verdict in favor of Myers and against Hempt . Id. at 60-61.
As set forth above, Myers is entitled to a new trial limited to Hempt’s
damages for overtime for excessive handwork, and the single judgment of
$1,595,216 must be vacated. Because our decision upsets the $1,595,216
____________________________________________
21 Hempt’s initial brief to this Court lacks any citations to legal authority and
requested that we affirm or direct the entry of judgment reflecting its
alternative calculation of pre-judgment interest. See id. at 61. Hempt’s reply
brief contains a more developed argument with citation to case law.
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J-A05028-21
judgment from which Hempt takes its cross-appeal, and which includes the
calculations of pre-judgment interest due upon the prior jury’s total verdict,
we conclude that Hempt’s cross-appeal is premature. Accordingly, based on
our disposition, we decline to address these issues such that the parties may
raise these issues before the trial court following remand.
Judgment vacated. Orders at 1009 EDA 2020 affirmed in part and
reversed in part. Case remanded for a new trial on Hempt’s damages for
overtime for excessive handwork consistent with this memorandum. Hempt’s
cross-appeal at 1018 EDA 2020 dismissed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/28/21
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