Muhlenberg School District v. Gordon H. Baver, Inc.

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Muhlenberg School District, :
:
Appellant :
:
v. : No. 55 C.D. 2019
: Submitted: November 14, 2019
Gordon H. Baver, Inc. :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: December 4, 2019
Muhlenberg School District (School District) appeals the orders of the
Berks County Court of Common Pleas (trial court) granting Gordon H. Baver,
Inc.’s (Contractor) motions in limine precluding the School District from: (1)
presenting a claim or seeking damages for cracks and displacement in the floor
slab of classrooms in the E-Block addition to Muhlenberg Middle School (Middle
School); (2) presenting the testimony of employees of Earth Engineering, Inc.
(Expert Engineer) regarding the purported improper compaction of fill material
underneath the floor slabs in the E-Block and C-Block additions to the Middle
School; and (3) presenting testimony of John R. Hill (Expert Architect) regarding
the cause of the floor slab settlement and cracking in the additions to the Middle
School. We quash the appeal.
The facts as alleged in a complaint that the School District filed on
June 15, 2017, are as follows. See Reproduced Record (R.R.) at 1a-57a. On
February 4, 2009, the School District and Contractor entered into a contract for the
construction of the C-Block and E-Block additions to the Middle School.
Contractor was the prime contractor for the project which included site work
involving excavation and backfilling for the buildings. Contractor was also
responsible for the installation of subgrade fill material and reinforced floor slabs
for the buildings.
The contract between the School District and the project’s architect,
as well as the architect’s project manual, required the School District to hire a
geotechnical engineer to perform tests and inspections of the site work, including
the excavation and backfilling for the buildings. Schuylkill Valley Engineering,
Inc. (SVEI) was hired as the geotechnical engineer. SVEI was to inspect and test
the subgrades and each fill or backfill layer. Contractor was only allowed to
proceed with its site work after SVEI’s test results for the previously completed
work met the contract requirements. SVEI approved Contractor’s work for
excavating and backfilling for the slabs in the C-Block addition.
Between 2009 and 2015, there were no settlement issues with respect
to the floor slabs in the additions. However, in May 2015, six years after the work
was performed, the School District discovered that the floor slabs in several C-
Block classrooms had settled and cracked and had become a safety hazard. The
School District hired Expert Engineer to conduct diagnostic testing, which
included geotechnical field testing. Based on its testing, Expert Engineer
concluded that the settlement was the result of loose fill materials underneath the
floor slabs.
Likewise, in July 2015, the School District discovered that the floor
slabs in a number of classrooms in the E-Block addition had also settled and
2
cracked and had become a safety hazard. Expert Engineer performed testing and
concluded that the settlement and cracking of the floor slabs was caused by the
improper use of fill material, but that settlement was “within tolerable limits of
normal settlement.” R.R. at 778a.
In August 2015, a rupture in the cast iron sanitary sewer line was
discovered in the school parking lot. The School District asserted that Contractor
broke the line during construction in 2009, and improperly repaired it by using
PVC pipe and rubber couplings that were the wrong size.
On June 15, 2017, the School District then filed the instant four-count
complaint against Contractor alleging negligence, breach of contract, breach of
implied warranty of workmanship, and unjust enrichment. On March 12, 2018, the
trial court entered an order directing that all discovery be completed within 120
days and all dispositive motions be filed within 30 days after the close of
discovery; a pretrial settlement conference was scheduled for August 17, 2018.
Following the conference, trial was scheduled for January 8, 2019.
During discovery, the School District responded to Contractor’s
Supplemental Expert Witness Interrogatories identifying Expert Engineer and
Expert Architect as expert witnesses. R.R. at 712a-716.8a. Expert Engineer
produced two reports following geotechnical and laboratory testing and review of
the plans and drawings to determine the nature and extent of the settlement and
cracking floor slabs. See id. at 755a-771a, 773a-795a. In both reports, Expert
Engineer stated that “[a]t the time of report preparation, daily field inspection
reports documenting the excavation of foundations, concrete placement for
foundations, backfill placement and placement of floor slab components were not
provided[.]” Id. at 756a, 774a. With respect to the C-Block addition, Expert
3
Engineer found that “[b]ased on these visual observations and the results of the
investigation, the slab distress and settlements noted herein are believed to be due
to the presence of the loose existing FILL materials.” Id. at 760a. However, with
respect to the E-Block addition, Expert Engineer found that “[b]ased on these
visual observations and the results of the investigation, the slab distress and
settlements noted herein are believed to be within the tolerable limits of normal
settlement,” but “recommend[ed] monitoring the slab for the potential of future
settlements, due to the presence of the loose existing FILL materials.” Id. at 778a.
On November 19, 2018, Contractor filed three motions in limine to
preclude: (1) representatives of Expert Engineer from testifying regarding the
alleged improper compaction of the fill materials; (2) Expert Architect from
testifying regarding the cause of the floor slab settlement or cracking in the
additions; and (3) the School District from seeking damages at trial for the alleged
settlement and cracking of the E-Block floor slab. See R.R. at 738a-797a, 798a-
875a, 876a-970a. On December 19, 2018, the School District filed responses
opposing each of the motions. Id. at 1567a-2259a.
Following hearing, on December 21, 2018, the trial court issued three
orders granting the three motions in limine. R.R. at 2260a-2262a. In its Pa. R.A.P.
1925(a) Opinion filed in support of the orders, the trial court explained that it
granted the first motion in limine, precluding Expert Engineer’s testimony
regarding the purported improper compaction of the fill materials, for the
following reasons:
[Expert Engineer] notes in both reports that “at the time
of report preparation, daily field inspection reports
documenting the excavation of foundations, concrete
placement for foundations, backfill placement and
placement of floor slab components were not
4
provided[.]” There is also no indication in either report
that [Expert Engineer] reviewed the project manual or
specifications, which set forth the soil and compaction
requirements, in preparing [its] reports. [Expert
Engineer] does not opine in either report that the fill
material was inadequately compacted during the original
construction. In [the School District’s] Supplemental
Answers to [Contractor’s] Expert Witness
Interrogatories, [the School District] indicated that
[Expert Engineer] would testify regarding the inadequacy
of the compaction fill material and the cause of the
cracking and settling of the floor slabs, an opinion not in
any of the reports. In order to render an opinion
regarding the proper compaction of the fill materials,
[Expert Engineer] would need to know what the contract
specified and what work was done. [Expert Engineer]
rendered reports without this information, and its
representatives were to testify as to the cause of the
cracking and settling, which was outside the scope of its
report; therefore, this court precluded such testimony.
***
[Expert Engineer] based its opinion on faulty and
incomplete information and, thus, was unable to render a
meaningful opinion on the issue of [Contractor’s]
negligence. Expert testimony becomes necessary when
the subject matter of the inquiry is one involving special
skills and training not common to the ordinary layperson.
Laypersons do not have training in compaction of
material for floors during construction. An expert was
needed in the instant case to explain the problem and to
express an opinion that [Contractor] was responsible for
the poor compaction. [Expert Engineer] could not render
this opinion because it did not have sufficient
information about the project. A jury cannot simply
guess that [Contractor] was the cause of the damages
because it is the sole defendant. A jury needs sufficient
facts, rather than speculation, on which to base its
decision.
Trial Court 3/8/19 Opinion at 8-9, 10 (citation omitted).
5
With respect to the second motion in limine, precluding Expert
Architect’s testimony regarding the cause of the floor slab settlement or cracking
in the additions, the trial court explained that it granted the motion for the
following reasons:
[Expert Architect] is a licensed architect. [He] was to
testify that, based upon the reports of [Expert Engineer],
the cause of the settling and cracking in the floors of the
School was the inadequate compaction of the fill material
below the floor slabs and not due to other causes, such as
a sinkhole. [He] did not identify any experience in
geotechnical engineering, civil engineering, geology,
geological surveying, or environmental planning. [The
School District’s] corporate designee [] testified in his
deposition that during the project, it was important that a
geotechnical engineer was present during the earth work
to insure that the work methods were executed properly.
The project’s specifications required that geotechnical
engineering agency perform tests and inspections of the
earthwork that had been performed. [Expert Architect]
did not conduct any independent testing or investigation.
An expert may not simply repeat another expert’s
opinion without bringing in his own expertise.
Therefore, this court did not permit [Expert Architect] to
offer any testimony regarding the cause of the floor slab
settlements or cracking because he would have just
regurgitated the information from [Expert Engineer’s]
report.
Id. at 7-8 (citation omitted).
Finally, with respect to the third motion in limine, precluding the
School District from seeking damages for the alleged settlement and cracking of
the E-Block floor slab, the trial court explained that it granted the motion for the
following reasons:
This court prohibited damages testimony for E-
Block because [the School District’s] own expert []
concluded that “the slab distress and settlements noted”
6
in the report “are believed to be within the tolerable
limits of normal settlement.” Presently, there can be no
negligence found because there are no damages. [Expert
Engineer] recommended that the slab be monitored for
the potential of future settlements due to the presence of
the loose existing fill materials; however, such damages
are purely speculative. A jury may not award damages
on the basis of speculation and conjecture. Slab E was
finished for at least five years, and there is no evidence of
negligence at this time.
Id. at 7 (citation omitted). Following argument, on January 7, 2019, the trial court
denied the School District’s motion to reconsider its orders granting Contractor’s
motions in limine.
On January 8, 2019, the day set for trial, the School District and
Contractor executed the following Settlement Stipulation:
1. The parties have agreed that the claims set
forth in [the School District’s] Complaint regarding the
damaged sewer pipe (the “Sewer Pipe Claims”) are
settled upon the payment of the sum of $19,262.00 by
[Contractor] to [the School District], and pursuant to a
release agreement to be executed by representatives of
[the School District] and [Contractor].
2. The parties agree that the [trial] court’s
orders of December 21, 2018 [granting Contractor’s
motions in limine] are dispositive of issues set forth in
[the School District’s] Complaint regarding the cracked
and damaged floors in C-Block and E-Block of the
Muhlenberg Middle School (the “Floor Claims”).
3. The parties agree that with the settlement of
the Sewer Pipe Claims all issues in this action have been
adjudicated by the [trial] court and the orders regarding
the Floor Claims entered on December 21, 2018 are ripe
for appeal.
7
R.R. at 2533a-2534a. The trial court approved the Settlement Stipulation and
entered it as an order of that court. Id. at 2534a. The School District then filed this
appeal.1
As a preliminary matter, we note that on February 22, 2019, this Court
issued the following order in this case:
[I]t appears that [the School District] seeks review of the
December 21, 2018 orders of the [trial court] that granted
[Contractor’s] motions in limine precluding (1) testimony
related to the cause of floor slab settlement or cracking
and allegedly improper compaction of fill materials and
(2) [the School District] from seeking damages for
alleged settlement and cracking of E Block.
Because [the School District] seeks review of a
non-final order, the parties shall address the appealability
of the December 21, 2018 orders in their principal briefs
on the merits. See Pa. R.A.P. 311, 313, 341.
Commonwealth Court 2/22/19 Order.2
“[T]he appealability of an order is a question of jurisdiction and may
be raised [by this Court] sua sponte,” and an order granting a motion in limine is,
generally speaking, not a final appealable order. Kovalchick v. B.J.’s Wholesale
Club, 774 A.2d 776, 777-78 (Pa. Super. 2001) (citation omitted). As the Superior
Court has explained:
1
Where this Court reviews a trial court’s disposition of a motion in limine, “our courts
apply ‘an evidentiary abuse of discretion standard of review.’” Grimes v. Department of
Education, 216 A.3d 1152, 1159 (Pa. Cmwlth. 2019) (citation omitted). “In order for [this
Court] to find that the [trial court] abused its discretion in making the evidentiary ruling, the
appellate court must find that the ruling was manifestly unreasonable, partial, prejudiced, biased,
based on ill-will, or lacks such support as to constitute a clear error.” Id.2
Although the School District addresses the “timeliness” of the appeal in its appellate
brief, contrary to this Court’s instruction, Contractor does not address the issue at all in its brief.
8
[Pa. R.A.P.] 341(b) defines a final Order as “any
order that: (1) disposes of all claims or of all parties; or
[(3) is entered as a final order pursuant to subsection (c)
of this rule.3]” The parties mistakenly argue that the
Order granting Appellee’s Motion in Limine is final
pursuant to 341(b)(1) because it had the practical effect
of disposing of all of Appellants’ claims. A [Pa. R.A.P.]
341(b)(1) Order, however, is not an order that has the
“practical effect” of disposing of all claims, but, rather is
an order that resolves all claims as to all parties. The
court’s [] Order did neither. While the court’s grant of
Appellee’s Motion in Limine may have hampered
Appellants’ presentation of its case, at that point it was
the responsibility of the parties to go forward with the
case or for Appellee to file a Motion for Summary
Judgment the grant of which would have led to an appeal.
The Order in question also does not fit the criteria
for a final Order under [Pa. R.A.P.] 341(c). [Pa. R.A.P.]
341(c) provides that a trial court may “enter a final order
as to one or more but fewer than all of the claims or
parties only upon an express determination that an
immediate appeal would facilitate resolution of the entire
case.” Here, the court did not enter a final order as to any
specific claim or party. Even where a final determination
has been made as to some of the parties or some of the
counts of a multi-count complaint, it is not necessarily
appropriate to certify a case. “A determination that an
immediate appeal of a non-final order is appropriate
should be made only in the most extraordinary
circumstances because such action would frustrate the
amendments to the Rule. The revisions to the Rule were
designed to eliminate the confusion created by the prior
case law and to prevent piecemeal appeals which
unnecessarily result in delay.” Here there is no requisite
order dismissing a party or claim. Thus, it was error to
certify this matter.
3
Pa. R.A.P. 341(b)(2) was rescinded subsequent to the publication of the above-quoted
opinion and, therefore, has been deleted from the quoted portion of that opinion. Because that
portion of the Rule was not implicated therein or herein, its rescission does not affect the
application of the quoted material or our disposition of the instant appeal.
9
Liberty State Bank v. Northeastern Bank of Pennsylvania, 683 A.2d 889, 889-90
(Pa. Super. 1996) (citation omitted). See also Robert H. McKinney, Jr., Associates,
Inc. v. Albright, 632 A.2d 937, 939 (Pa. Super. 1993) (“[T]he mere fact that some
of the parties have been dismissed from a case, or that some of the counts of a
multi-count complaint have been dismissed is insufficient reason to classify an
order as final. While the comment to Rule 341 suggests areas where certification
may be appropriate, courts are cautioned to refuse to classify orders as final except
where the failure to do so would result in an injustice which a later appeal cannot
correct.”). Moreover, “[a] party, or the parties by agreement, may not vest subject
matter jurisdiction in a court which does not have it otherwise.” Mercury
Trucking, Inc. v. Pennsylvania Public Utility Commission, 55 A.3d 1056, 1066 (Pa.
2012) (citation omitted).
Although the parties executed a settlement and stipulated that the trial
court’s orders “adjudicated” all issues in this action, as the trial court stated in its
Pa. R.A.P. 1925(a) Opinion, “This court prohibited [the School District] from
presenting a claim or seeking damages at trial for the alleged settlement and
cracking in E-Block. [The School District] could have still presented evidence
concerning damages in C-Block. [The School District] chose not to do so.” Trial
Court 3/8/19 Opinion at 7. Thus, the School District could have proceeded on the
remaining claims in the complaint, but merely chose not to present any evidence in
support of any other claims due to the trial court’s rulings on the motions in limine
on some of the claims raised therein. Moreover, there is nothing in the trial court’s
orders underlying this appeal, and the parties make no reference to, Count IV of
10
the School District’s complaint alleging unjust enrichment4 or any dispositive order
with respect to that Count of the complaint.
4
As the Pennsylvania Superior Court has stated:
Our Rules of Civil Procedure specifically provide for the
alternative pleading of causes of action. Pa. R.C.P. [No.]
1020(c)[.] Moreover, causes of action that are inconsistent are
permitted so long as they are pleaded at separate counts. Standard
Pennsylvania Practice, §16:59 (2d 2009). Finally, this court has
previously held that theories of breach of contract and unjust
enrichment must be pleaded alternatively in order to allow
recovery under the latter theory where an express contract cannot
be proven:
Appellant, alternatively argues that the assessments may be
justified under theories of quasi-contract or implied
contract. We must first distinguish the various contractual
theories. A quasi-contract, also referred to as a contract
implied in law imposes a duty, not as a result of any
agreement, whether express or implied, but in spite of the
absence of an agreement when one party receives an unjust
enrichment at the expense of another. A contract implied
in fact is an actual contract arising when there is an
agreement, but the parties’ intentions are inferred from
their conduct in light of the circumstances.
If a plaintiff fails to prove a cause of action on an express
contract, he may not then attempt to prove his case in
quasi-contract, unless his complaint originally, or as
amended sets forth a cause of action in quasi-contract. In
the current case, the complaint averred two causes of
action, the first count, in contract, was based on the
covenant in the deeds; and the second count, sounding in
unjust enrichment, pleaded a quasi-contract. Therefore,
appellant could properly proceed on a theory of quasi-
contract.
(Footnote continued on next page…)
11
In sum, in the absence of a dispositive order on all of the remaining
Counts in the School District’s complaint, such as one granting summary
judgment5 or nonsuit,6 or the entry of judgment on those Counts, this appeal from
(continued…)
Lugo v. Farmers Pride, Inc., 967 A.2d 963, 970 (Pa. Super. 2009) (citation omitted and emphasis
in original). In this case, the School District could still proceed on a theory of quasi-contract
because the separate Count IV was asserted in the complaint.
In general, a claim of unjust enrichment must allege the following elements: (1) the
plaintiff conferred a benefit upon the defendant; (2) the defendant appreciated the benefit; and
(3) the defendant accepted and retained the benefit, but it would be inequitable under the
circumstances for the defendant to retain the benefit without paying for the value of the benefit.
Styer v. Hugo, 619 A.2d 347, 350 (Pa. Super. 1993). “In order to recover, there must be both (1)
an enrichment, and (2) an injustice resulting if recovery for the enrichment is denied.” “[A]
showing of knowledge or wrongful intent on the part of the benefited party is not necessary in
order to show unjust enrichment. Rather, the focus is on the resultant unjust enrichment[,] not on
the party’s intention.” Torchia by Torchia v. Torchia, 499 A.2d 581, 582-83 (Pa. Super. 1985)
(citations omitted and emphasis in original). “The polestar of the unjust enrichment inquiry is
whether the defendant has been unjustly enriched; the intent of the parties is irrelevant.”
Limbach v. City of Philadelphia, 905 A.2d 567, 577 (Pa. Cmwlth. 2006) (emphasis in original).
Neither of the parties nor the trial court has addressed any of the foregoing in the orders or
opinion disposing of the motions in limine, the Settlement Stipulation, or the parties’ appellate
briefs.
5
On the merits, the School District first asserts that Contractor’s motions in limine should
be deemed to be untimely motions for summary judgment. However, contrary to the School
District’s assertion, this Court has explained:
It is error for a trial court to grant summary judgment or
judgment on the pleadings on a motion made on the day of trial
where the plaintiff has no notice that he must respond to the legal
issue on which the motion is based and does not have a full
opportunity to respond to the motion. Cagnoli v. Bonnell, [611
A.2d 1194, 1196 (Pa. 1992)]; School Security Services, Inc. v.
Duquesne City School District, 851 A.2d 1007, 1011 (Pa. Cmwlth.
2004); Moscatiello Construction Co. v. City of Pittsburgh, [625
A.2d 155, 156–58 (Pa. Cmwlth. 1993)]. The mere fact that
summary judgment is sought on the day of trial does not, however,
(Footnote continued on next page…)
12
(continued…)
require that the trial court deny the motion; rather, the issue is
whether plaintiff has received a full and fair opportunity to
respond to the motion. Phillips v. Lock, 86 A.3d 906, 914–15 (Pa.
Super. 2014); see also Pa. R.C.P. No. 1035.3(e)(1) (providing that
“[n]othing in this rule is intended to prohibit a court, at any time
prior to trial, from ruling upon a motion for summary judgment
without written responses or briefs if no party is prejudiced” and
that “[a] party is prejudiced if he or she is not given a full and fair
opportunity to supplement the record and to oppose the motion”).
Where the plaintiff has sufficient notice of the issues raised by the
summary judgment motion and a full opportunity to respond and
raise any factual and legal arguments against the motion, the
granting of summary judgment on a motion made on the day of
trial is not reversible error. Phillips, 86 A.3d at 911-15 (affirming
grant of motion for summary judgment made by defendant on the
morning of trial).
Here, Plaintiff had both ample notice and an unrestricted
and unimpaired opportunity to oppose the [Defendant’s] motion
for summary judgment. Plaintiff received notice over a week
before trial of the precise legal issue, sovereign immunity, and the
case law and facts on which the summary judgment was based, as
these legal and factual arguments were set forth in the
[Defendant’s] motion in limine. The trial court gave Plaintiff
extensive opportunities at the motion in limine hearing to respond
to the summary judgment motion and show that he intended to
present evidence at trial that would support a negligence claim not
barred by sovereign immunity. Notably, Plaintiff has not set forth
in this appeal any evidence or legal arguments that he did not have
the opportunity to present to the trial court and argues in his brief
only the same facts that the trial court considered. Because
Plaintiff was given a full and fair opportunity to oppose the
[Defendant’s] summary judgment motion, the trial court did not
err in ruling on the motion and granting summary judgment on the
day of trial. Phillips, 86 A.3d at 914–15.
Robertson v. Port Authority of Allegheny County, 144 A.3d 980, 983-84 (Pa. Cmwlth. 2016)
(citations to record omitted). Likewise, the School District was well aware of the evidence
(Footnote continued on next page…)
13
the interlocutory orders disposing of the motions in limine in this matter is
improper. As a result, because the trial court’s orders with respect to the instant
motions in limine did not dispose of all of the claims in this matter and are not final
appealable orders, the instant appeal will be quashed.
(continued…)
sought to be excluded by the motions in limine herein and had ample opportunity to garner other
evidence to present in support of the claims in the complaint not implicated by the motions.
6
As the Superior Court has stated:
A motion for compulsory non-suit allows a defendant to
test the sufficiency of a plaintiff’s evidence and may be
entered only in cases where it is clear that the plaintiff has
not established a cause of action; in making this
determination, the plaintiff must be given the benefit of all
reasonable inferences arising from the evidence. When so
viewed, a non-suit is properly entered if the plaintiff has
not introduced sufficient evidence to establish the
necessary elements to maintain a cause of action; it is the
duty of the trial court to make this determination prior to
the submission of the case to the jury. When this Court
reviews the grant of a non-suit, we must resolve all
conflicts in the evidence in favor of the party against whom
the non-suit was entered.
“A compulsory non-suit is proper only where the facts and
circumstances compel the conclusion that the defendants are not
liable upon the cause of action pleaded by the plaintiff.”
Hong v. Pelagatti, 765 A.2d 1117, 1121 (Pa. Super. 2000) (citations omitted). Such a motion
could have been interposed by Contractor at the conclusion of the School District’s case if
insufficient evidence was presented to support any of the remaining Counts of the complaint at
trial.
14
Accordingly, the above-captioned appeal is quashed as interlocutory.
MICHAEL H. WOJCIK, Judge
15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Muhlenberg School District, :
:
Appellant :
:
v. : No. 55 C.D. 2019
:
Gordon H. Baver, Inc. :
ORDER
AND NOW, this 4th day of December, 2019, the above-captioned
appeal is QUASHED.
__________________________________
MICHAEL H. WOJCIK, Judge