Sycamore Restaurant Group, LLC v. Stampfi Hartke Associates, LLC

J-A27026-16
2017 PA Super 221SYCAMORE RESTAURANT GROUP, LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STAMPFI HARTKE ASSOCIATES, LLC
Appellant No. 2547 EDA 2015
Appeal from the Order May 21, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2011-34020
*****
SYCAMORE RESTAURANT GROUP, LLC IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STAMPFI HARTKE ASSOCIATES, LLC
Appellant No. 2563 EDA 2015
Appeal from the Order May 21, 2015
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2011-34020
BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*
OPINION BY LAZARUS, J.: FILED JULY 12, 2017
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*
Former Justice specially assigned to the Superior Court.
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Sycamore Restaurant Group, LLC (“Sycamore”), appeals from the
order, entered in the Court of Common Pleas of Montgomery County, which
granted construction delay damages in its favor in the amount of
$20,332.59.1 After careful review, we affirm.
Sycamore initiated the instant action in December 2011, asserting
Stampfi breached an architectural and engineering services contract with
Sycamore for construction of a new restaurant. A non-jury trial was held on
May 14 and 15, 2015. The court’s decision, finding in favor of Sycamore in
the amount of $20,332.59, plus costs, was docketed on May 22, 2015.
Thereafter, Sycamore filed a post-trial motion on June 1, 2015,2 asserting
that the Court erred by failing to consider certain evidence and testimony in
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1
Sycamore appeals on the basis that the damages award is inadequate.
Stampfi Hartke Associates, LLC (“Stampfi”), has filed a consolidated cross-
appeal in this matter, arguing that damages were awarded to Sycamore in
error. As discussed infra, Stampfi has waived all issues on appeal.
2
We note that Sycamore timely served the motion on opposing counsel, but
the certificate of service indicates it failed to provide a copy of the motion to
the trial court at the same time. See Pa.R.C.P. 227.1(f) (“The party filing a
post-trial motion shall serve a copy promptly upon every other party to the
action and deliver a copy to the trial judge.”). However, the court
considered the motion to be timely and Stampfi did not object. Accordingly,
we find the motion adequately preserved Sycamore’s issue raised on appeal.
See Watkins v. Watkins, 775 A.2d 841, 845 n.1 (Pa. Super. 2001)
(“Whenever a party files post-trial motions at a time when the court has
jurisdiction over the matter but outside the ten-day requirement of Pa.R.C.P.
227.1, the trial court’s decision to consider the motions should not be
subject to review unless the opposing party objects.” (quoting Mammoccio
v. 1818 Market Partnership, 734 A.2d 23, 27 (Pa. Super. 1999)).
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reaching its decision, and thus, the damages award is inadequate. Stampfi
filed a post-trial motion on July 1, 2015, asserting that the court erred in
awarding damages to Sycamore.3 The court denied both post-trial motions
on August 4, 2015, and entered judgment in favor of Sycamore on August
12, 2015. Sycamore and Stampfi each filed timely notices of appeal and
court-ordered concise statements of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b).
On appeal, Sycamore raises the following question for our review:
Did the lower court commit legal error and/or abuse its
discretion, by entering an inadequate verdict in favor of
Sycamore, based solely on money damages of $20,332.59 for
construction completion delay (for rent and construction loan
interest associated with the extra time need[ed] to complete the
unanticipated rock removal and dewatering), but excluding the
credible and uncontroverted evidence of additional money
damages for the $197,009.12 of costs actually incurred by
Sycamore for [the] unanticipated rock removal and dewatering?
Brief for Appellant, at 3.
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3
We note that Stampfi’s post-trial motion was untimely, since it was filed
more than 10 days after Sycamore filed its post-trial motion on June 1,
2015. See Pa.R.C.P. 227.1(c) (“If a party has filed a timely post-trial
motion, any other party may file a post-trial motion within ten days after the
filing of the first post-trial motion.”). Additionally, Sycamore objected to the
timeliness of Stampfi’s post-trial motion in its answer to the motion and at
argument. On this basis, the trial court found Stampfi’s post-trial motion did
not preserve its claims on appeal. We are constrained to agree. See
Kennel v. Thomas, 804 A.2d 667, 668 (Pa. Super. 2002) (where trial court
refused to address merits of appellant’s issues raised in untimely post-trial
motions, issues were waived and not preserved for purposes of appellate
review).
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On February 17, 2016, the trial court issued its Rule 1925(a) opinion in
which it requested that this Court quash both parties’ appeals. Further, the
trial court declined to address the issue of damages on the basis that both
parties delayed in requesting that the trial notes be transcribed. 4 This could
be grounds for dismissal in our Court pursuant to Rule 1911; however, the
trial court did not file its Rule 1925(a) opinion until February 17, 2016, a
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4
Pursuant to Pa.R.A.P. 1911, an appellant shall request and pay for any
necessary transcript in an appeal, and where a cross appeal has been taken,
the cross-appellant shares the duty to file and pay for necessary transcripts.
Pa.R.A.P. 1911(a), (b). The Pennsylvania Rules of Judicial Administration
specify that the request for a transcript in an appeal “shall be made part of
the notice of appeal.” Pa.R.J.A. 5000.5(b). Further, if an appellant “fails to
take the action required by . . . the Pennsylvania Rules of Judicial
Administration for the preparation of the transcript, the appellate court may
take such action as it deems appropriate, which may include dismissal of the
appeal.” Pa.R.A.P. 1911(d). Indeed, in cases where the appellant has failed
to request the trial transcript at any point during the pendency of the
appeal, this Court has found it appropriate to dismiss the matter. See
Smith v. Smith, 637 A.2d 622, 624 (Pa. Super. 1993) (appropriate to
quash appeal where appellant challenged order of support on grounds
necessitating review of hearing transcript but did not make transcript official
part of record); see also Gorniak v. Gorniak, 504 A.2d 1262, 1264 (Pa.
Super. 1986) (appeal properly dismissed where appellant failed to file order
for transcript of proceedings). Instantly, both parties failed to request the
trial transcript with their notices of appeal, which were filed in August 2015.
On September 5, 2015, counsel for Sycamore inquired about the cost to
have the trial proceedings transcribed. Counsel for both parties were
informed on September 18, 2015, of the required deposit of 50 percent of
the transcription costs as allowed by Pa.R.J.A. 5000.6. Stampfi’s counsel
ultimately paid the required deposit on January 28, 2016. The stenographer
completed the transcript and filed it on February 10, 2016. The trial court
correctly observes that the necessary deposit for the transcript was not paid
for 7 months after the filing of post-trial motions and 5 months after the
filing of the notices of appeal in this matter.
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week after the trial transcript was completed and filed. Accordingly, we
determined the trial court could have reviewed the transcript and produced a
Rule 1925(a) opinion analyzing the merits of the issue raised on appeal and
addressing its determination of damages. Therefore, on January 14, 2016,
we remanded this case for the trial court to file a supplemental opinion
addressing Sycamore’s claim. On March 24, 2017, the trial court issued an
opinion on remand, finding Sycamore’s issue on appeal to be meritless. The
same issue now before us, we proceed with our review.
Our standard in reviewing a court order entered after a bench trial is
limited: “[This Court] will reverse a court order . . . only if the decision is
based on an error of law or on factual findings that are unsupported by
evidence of record.” Agliori v. Metropolitan Life Ins. Co., 879 A.2d 315,
318, p.p. (Pa. Super. 2006) (internal citation omitted).
Here, Sycamore avers the trial court erred where it did not admit
change request documents that Sycamore contends prove $197,009.12 in
additional damages. We disagree.
“Admissibility of evidence depends on relevance and probative value.
Evidence is relevant if it logically tends to establish a material fact in the
case, tends to make a fact at issue more or less probable or supports a
reasonable inference or presumption regarding a material fact.” Klein v.
Aronchick, 85 A.3d 487 (Pa. Super. 2014). The court my exclude relevant
evidence if its probative value is outweighed by a danger of unfair prejudice.
See Pa.R.E. 403. “[Q]uestions regarding the admissibility or exclusion of
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evidence are within the sound discretion of the trial court and will not be
disturbed absent an abuse of discretion.” Spino v. John S. Tilley Ladder
Co., 671 A.3d 726, 734 (Pa. Super. 1997). However, “[a]n abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous.” Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa.
2003).
Furthermore, the proponent of evidence must satisfy the requirement
of authenticating or identifying an item of evidence by proving that the item
is what the proponent claims it is. Pa.R.E. 901. “A document may be
authenticated, as a condition precedent to admissibility, by direct proof
and/or by circumstantial evidence; proof of any circumstances which will
support a finding that the writing is genuine will suffice to authenticate the
writing.” Zuk v. Zuk, 55 A.3d 102, 111 (Pa. Super. 2012).
First, we address Sycamore’s assertion that the change request
documents were admissible into evidence as modifications to the parties’
Construction Contract.5 This argument is unavailing.
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5
Sycamore cites no authority in support of its argument that, contrary to
the contract’s plain language, the change request documents should be
viewed as change orders pursuant to the Construction Contract. See
Childers v. Power Line Equip. Rentals, Inc., 681 A.2d 201, 211 (Pa.
Super. 1996) (issues identified on appeal but unsupported by citation to
proper authorities are deemed to have been abandoned).
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In interpreting a contract, this Court need not defer to the conclusions
of the trial court and is free to draw its own inferences.6 Southwestern
Energy Production Co. v. Forest Resources, LLC, 83 A.3d 177 (Pa.
Super. 2015). In interpreting the language of a contract, courts attempt to
ascertain the intent of the parties and give it effect. LJL Transp., Inc. v.
Pilot Air Freight Corp., 962 A.2d. 639, 648 (Pa. 2009). When the words of
an agreement are clear and unambiguous, the court ascertains the intent of
the parties from the language used in the agreement, which it will give its
commonly accepted and plain meaning. Id. We must construe a contract
only as written and may not modify plain meaning under the guise of
interpretation. Southwestern Energy, 93 A.3d at 183.
Paragraph 7.2.1 of the Construction Contract reads as follows:
A Change Order is a written instrument prepared by the
Architect and signed by the Owner, Contractor and Architect,
stating their agreement upon all of the following:
[1.] change in the work[;]
[2.] the amount of the adjustment, if any, in the Contract
Sum; and
[3.] the extent of the adjustment, if any, in the Contract
Time.
General Conditions of the Contract for Construction, 4/3/08, at 23. Stampfi
agreed to provide Sycamore the following services: “architectural design,
documentation, structural engineering, interior design, mechanical,
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6
The trial court did not address this issue in its Rule 1925(a) opinion.
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electrical, plumbing drawings and construction administration.” Professional
Services Agreement, 8/13/07, at 2.
Reading the plain language of the Construction Contract and
Professional Services Agreement together, we find the change request
documents are not modifications to the Construction Contract. See Huegel
v. Mifflin Const. Co., Inc., 796 A.2d 350, 354 (Pa. Super. 2002) (“Where
several instruments are made as a part of one transaction they will be read
together, and each will be construed with reference to the other; and this is
so although the instruments may have been executed at different times and
do not in terms refer to each other.”). The plain language of the two
contracts reveals the intent of the parties was for the architect, Stampfi, not
the contractor, Designline, to prepare Change Orders. Additionally, the
owner, contractor and architect are not signatories to the change request
documents proffered by Sycamore pursuant to the construction contract, nor
do they specify the adjustments in the contract time.
Next, Sycamore argues that the trial court should have considered the
testimony of Sycamore’s sole witness, managing partner Robert Stein,
regarding the additional costs of rock removal and dewatering, even
assuming arguendo, it was proper for the trial court to rule that the change
request documents were inadmissible. At trial, Sycamore argued the change
request documents were admissible under two exceptions to the hearsay
rule: as a statement against interest of an unavailable witness, Pa.R.E.
804(b)(3), and as a business record, 803(6). On remand, the trial court
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determined that the change request documents purporting to show rock
removal and dewatering costs were inadmissible pursuant to Pa.R.E. 804
and/or 803. We agree.7
The hearsay exception for an unavailable declarant provides, in
relevant part:
(a) Criteria for Being Unavailable. A declarant is considered
to be unavailable as a witness if the declarant:
(5) is absent from the trial or hearing and the statement’s
proponent has not been able, by process or other
reasonable means, to procure:
(B) the declarant’s attendance or testimony, in the
case of a hearsay exception under Rule 804(b)(2),
(3), or (4)
(b) The Exceptions. The following are not excluded by the rule
against hearsay if the declarant is unavailable as a witness:
(3) Statement Against Interest. A statement that:
(A) a reasonable person in the declarant’s position
would have made only if the person believed it to be
true, because, when made, it was so contrary to
the declarant’s proprietary or pecuniary
interest or had so great a tendency to
invalidate the declarant’s claim against
someone else or to expose the declarant to civil
or criminal liability[.]
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7
Sycamore does not raise these issues in their brief, however, we find these
particular issues are germane to our analysis of whether the trial court erred
in not considering Stein’s testimony regarding rock removal and dewatering
costs.
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Pa.R.E. 804 (emphasis added). The proponent of a statement made by an
unavailable declarant must establish the proponent took reasonable
measures to procure the declarant’s attendance. Consolidated Rail Corp.
v. Delaware River Port Authority, 880 A.2d 628, 631 (Pa. Super. 2005).
Declarations against pecuniary or proprietary interest are admissible as a
hearsay exception, which, as a threshold matter, require a finding of
unavailability of the declarant. See Heddings v. Steele, 526 A.2d 349, 352
(Pa. 1987).
Here, Designline’s unavailability is irrelevant. The change request
documents do not constitute statements that fall under any of the Rule
804(b) exceptions. Stampfi is not the declarant of the statements (i.e.,
change request documents) proffered by Sycamore, contradicting
Sycamore’s assertion that, collectively, the change request documents
constitute “a statement against [Stampfi’s] interest.” N.T. Trial, 5/14/17, at
117. As the trial court noted, the change request documents are “at best,
statements by Designline.” N.T. Trial, 5/14/17, at 118.
The business records exception provides, in relevant part:
(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation in
any form) of an act, event or condition if,
(A) the record was made at or near the time by—or from
information transmitted by—someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation,
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and calling of every kind, whether or not conducted for
profit;
(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of the
custodian or another qualified witness, or by a certification
that complies with Rule 902(11) or (12) or with a statute
permitting certification; and
(E) neither the source of information nor other
circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(6).
For purposes of Pa.R.E. 803(6), while a qualified witness need not
have personal knowledge, the individual must be able to provide sufficient
information relating to the preparation and maintenance of the records to
justify a presumption of trustworthiness. Keystone Dedicated Logistics,
LLC v. JGB Enterprises, Inc., 77 A.3d 1, 13 (Pa. Super. 2013). Merely
characterizing a document as a business record is insufficient to justify its
admission, because a business record, which contains multiple levels of
hearsay, is admissible only if each level falls within a recognized exception to
the hearsay rule. Birt v. Firstenergy Corp., 891 A.2d 1281, 1291 (Pa.
Super. 2006). Furthermore, while a qualified witness need not have
personal knowledge, the individual must be able to provide sufficient
information relating to the preparation and maintenance of the records to
justify a presumption of trustworthiness. Keystone Dedicated Logistics,
77 A.3d at 1. In evaluating the trustworthiness of business records, the
court will look to the sources of the information therein, method and time of
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preparation, and the qualifications of the custodial witness. See
Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 492 (Pa.
Super. 2011).
At trial, Sycamore asserted that the “change orders, once they were
delivered to Sycamore, became Sycamore’s business records.” N.T. Trial,
5/14/15, at 15. We find Commonwealth Financial Systems instructive.
There, NCOP Capital (NCOP) purchased the credit card debt of the appellee,
Larry Smith, from Citibank. Later, appellant, Commonwealth Financial
Systems (CFS), purchased Smith’s credit card debt from NCOP. After a
verdict was entered in Smith’s favor in an action to collect credit card debt,
CFS appealed, contesting the trial court’s failure to allow the admission of
business records into evidence. At trial, CFS sought to introduce documents
it received, electronically, from NCOP. The trial court denied the request.
CFS’ only witness was the vice-president responsible for overseeing its
portfolio collection division. CFS’ vice president testified he was not familiar
with how either Citibank or NCOP created, maintained or transmitted their
business records. Additionally, CFS’ vice president did not have personal
knowledge of whether business records received from NCOP where prepared
at or near the time of the documented events or by someone with personal
knowledge. This court affirmed, citing the fact that CFS failed to establish
the business records they sought to introduce were sufficiently authenticated
and trustworthy. See Commonwealth Financial Systems, 15 A.3d at 500
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(“The record also supports the trial court’s finding that CFS failed to
establish the trustworthiness of its documents.”).
Similarly, here, Sycamore was the recipient, not the preparer, of
various change requests documents prepared by Designline. Sycamore’s
only witness at trial was Stein, a managing partner. Sycamore typically
received change requests documents by mail, maintained the documents at
a construction site trailer maintained by Sycamore, copied the documents,
and occasionally transmitted the documents to relevant parties via email or
hand-to-hand exchange. Some of the documents were signed by an agent
of Sycamore, but that agent was not present to testify at trial. Absent from
the record is an account, by Stein or otherwise, of how the change orders
were created and/or calculated, the methods by which Designline maintained
the documents, and/or who from Designline transmitted the documents to
Sycamore. See Commonwealth Financial Systems, 15 A.3d at 492 (trial
court acted within discretion in finding documents proffered by appellant to
be insufficiently authenticated and untrustworthy and thus inadmissible;
custodial witness stated records had been qualified and had no further
knowledge of records). Moreover, Stein was unable to provide
circumstantial evidence corroborating the authenticity of the change order
documents (e.g., bank records verifying payment of change orders from the
construction lender or Sycamore). See Keystone Dedicated Logistics,
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In Commonwealth Financial Systems, CFS urged this Court to
adopt the federal “rule of incorporation,” which allows the trial court to admit
documents prepared by a third party as business records of the acquiring
business, if the business integrated the documents into its records and relied
upon them. See U.S. v. Adefehiniti, 510 F.3d 319, 326 (D.C. Cir. 2007).
However, this Court declined to adopt the rule of incorporation, on the basis
that “the Pennsylvania Supreme Court has not seen fit to adopt the rule of
incorporation.” Commonwealth Financial Systems, 15 A.3d at 500.
Thus, Stein’s assertion that he, as a managing partner of Sycamore, was
satisfied with the authenticity of the change request documents and made
payments in reliance upon the change requests is also insufficient. Pa.R.E.
803(6). Commonwealth Financial Systems, supra.In sum, the record at hand is insufficient to establish the
trustworthiness of the change request documents, which, despite
Sycamore’s attempts to recast the documents as its own, were created by a
third party. Sycamore did not corroborate Stein’s testimony that it incurred
$197,009.12 for the cost of rock removal with any documentation, or with
the testimony of custodians from the construction lender, damages experts
or other witnesses. See Vrabel v. Commonwealth, 844 A.2d 595 (Pa.
Commw. Ct. 2004) (amount of pecuniary damages cannot be presumed but
must be proved by establishment of facts). Additionally, the trial court did
not err in excluding the change order documents from evidence.
Consequently, the trial court had no credible evidence to discern the
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appropriate amount of damages for rock removal and dewatering costs.
Accordingly, we do not find that the trial court abused its discretion in
discounting Stein’s testimony regarding the total amount of pecuniary
damages. As the finder of fact, the trial court was in the best position to
determine the trustworthiness of the change requests documents, as well as
the credibility of Stein’s testimony. We shall not substitute our judgment of
that of the trial court.
In light of the foregoing, we do not find that the verdict is so contrary
to the evidence as to shock one’s sense of justice. See Agliori, supra. The
trial court did not err in granting Stampfi’s motion for nonsuit and only
finding Stampfi liable for costs associated with 30 days’ rent and interest.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/12/2017
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