Joseph, J. v. Earl Baker Building

J-A06007-18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
JOSEPH T. JOSEPH, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
EARL BAKER BUILDING, INC., A
CORPORATION, AND KURTANICH
ENGINEERS & ASSOCIATES, INC., A
CORPORATION,
Appellee No. 1023 WDA 2017
Appeal from the Judgment Entered June 12, 2017
In the Court of Common Pleas of Mercer County
Civil Division at No(s): GD-2009-02400
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 19, 2018
Appellant, Joseph T. Joseph, contests the entry of summary judgment
in favor of Appellee, Kurtanich Engineers & Associates, Inc., a corporation
(referred to herein as “Kurtanich”), made final by the entry of judgment in the
amount of $361,007.00 against Appellee, Earl Baker Building, Inc., a
corporation (referred to herein as “Baker”). We affirm.
The trial court summarized the factual background and preliminary
procedural history of this case, as follows:
[Appellant] is an adult resident of Mercer County and was at all
times relevant hereto the owner of the South Shore Commons
Building located at 2787 Lake Road, Borough of Clark, Mercer
County, PA ([Appellant’s] building). [Baker] is a registered
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* Retired Senior Judge assigned to the Superior Court.
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business corporation organized and existing under the laws of the
State of Ohio and regularly conducts business as a construction
company within Mercer County, PA. [] Baker contracted with
[Appellant] to provide construction services for [Appellant’s]
building. [Kurtanich] is a registered business corporation
organized and existing under the laws of Pennsylvania and
regularly conducts business as a provider of engineering services
related to building and construction within Mercer County, PA. []
Kurtanich contracted with [Appellant] for the performance of
engineering services and preparation of plans, blueprints and/or
drawings for [Appellant’s] building.
On December 29, 2003, … Kurtanich offered engineering services
to [Appellant] by way of a Proposal for Engineering Services. The
following items were included in the Engineering Proposal:
topographic survey of property, preparation of plans for approval
and obtaining Pennsylvania Department of Labor & Industry
permit, meetings with [Appellant] and the contractor to discuss
the project requirements and three sets of plans for the project.
On January 7, 2004, [Appellant] accepted the Engineering
Proposal by signing said proposal. [Appellant] provided
consideration in the amount of $14,900.00 in order to receive …
Kurtanich’s engineering services pursuant to the Engineering
Proposal. The plans, blueprints and/or drawings were submitted
for approval to the Pennsylvania Department of Labor & Industry
and/or Richardson Inspection Services, LLC[,] on January 2, 2007,
May 17, 2007, March 24, 2008[,] and March 2, 2009. However,
the plans, blueprints and/or drawings were never approved.
On July 22, 2004, … Baker offered construction services to
[Appellant] by way of a proposal. The Construction Proposal
incorporated the plans for the erection of [Appellant’s] building
that were prepared by … Kurtanich. The Construction Proposal
provided that payment was to be made as follows: “[$]20,000
down payment to start with progress billing to follow.” On July
22, 2004, [Appellant] accepted the Construction Proposal by
signing said proposal.
In the summer of 2004, … Baker initiated construction of
[Appellant’s] building utilizing … Kurtanich’s plans, blueprints
and/or drawings. During construction of [Appellant’s] building,
[Appellant] provided consideration in the amount of $549,985.00
to … Baker in the form of payments as agreed to in the
Construction Proposal. During construction, … Baker started
demanding additional payments in excess of the agreed upon
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consideration, and [Appellant] made payments in excess of the
amount specified in the Construction Proposal. Before
construction was complete, … Baker unilaterally terminated
construction on [Appellant’s] building and vacated the
construction site. At the time … Baker ceased work and vacated
the construction site, there was an extensive amount of work to
be completed on the building.
[Appellant] commenced this action by filing a Praecipe for Writ of
Summons on June 26, 2009. [Appellant] later filed a Complaint
against … Kurtanich and Baker on December 30, 2010.[1] []
Kurtanich filed Preliminary Objections to the Complaint on January
10, 2011, which this [c]ourt sustained on March 7, 2011. The
only remaining claim against … Kurtanich is a claim for
professional negligence. [] Kurtanich then filed an Answer, New
Matter and Crossclaim on April 27, 2011. [Appellant] filed his
Reply to … Kurtanich’s New Matter on June 10, 2011. [] Kurtanich
filed the instant Motion for Summary Judgment on August 21,
2015, and [Appellant] filed his response on September 21, 2015.
[] Baker has failed to make any response to the litigation.
Trial Court Opinion (“TCO”), 1/19/2016, at 2-4.
The trial court granted summary judgment in favor of Kurtanich on
January 19, 2016, on the basis that Appellant’s expert — Robert Grine — was
“not qualified to render an expert opinion as to whether … Kurtanich fell below
the professional standard of care for an engineer.” Id. at 9. Thereafter, on
September 7, 2016, Appellant obtained a default judgment against Baker on
his breach of contract and unjust enrichment claims. Subsequently, on June
12, 2017, after a hearing on the liquidation of damages pursuant to the default
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1Therein, Appellant raised professional negligence and Unfair Trade Practices
and Consumer Protection Law (UTPCPL), 73 P.S. § 201-1 et seq., claims
against Kurtanich, and breach of contract and unjust enrichment claims
against Baker.
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judgment, the trial court awarded damages against Baker and in favor of
Appellant in the amount of $361,007.00.
On July 12, 2017, Appellant filed a notice of appeal from the judgment
entered in this matter on June 12, 2017. On July 31, 2017, the trial court
ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal, and he complied.
Presently, Appellant raises a single issue for our review:
Did the [t]rial [c]ourt err in disqualifying Appellant’s expert
witness at the summary judgment stage?
Appellant’s Brief at 3.
Before addressing Appellant’s issue, we must first determine whether
Appellant timely filed his appeal challenging the trial court’s entry of summary
judgment in favor of Kurtanich. Appellant states that the January 19, 2016
order granting summary judgment in favor of Kurtanich became final and
appealable upon entry of the trial court’s June 12, 2017 order awarding
damages against Baker. See Appellant’s Brief at 1. We agree.
Pennsylvania Rule of Appellate Procedure 341 sets forth, in relevant
part, the following:
(a) General Rule.--Except as prescribed in paragraphs (d)
[regarding Superior Court and Commonwealth Court orders] and
(e) [regarding criminal orders] of this rule, an appeal may be
taken as of right from any final order of a government unit or trial
court.
(b) Definition of Final Order.--A final order is any order that:
(1) disposes of all claims and of all parties; or
(2) RESCINDED
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(3) is entered as a final order pursuant to paragraph (c) of this
rule.
(c) Determination of finality.--When more than one claim for
relief is presented in an action, whether as a claim, counterclaim,
cross-claim, or third-party claim or when multiple parties are
involved, the trial court or other government unit may enter a final
order as to one or more but fewer than all of the claims and parties
only upon an express determination that an immediate appeal
would facilitate resolution of the entire case. Such an order
becomes appealable when entered. In the absence of such a
determination and entry of a final order, any order or other
form of decision that adjudicates fewer than all the claims
and parties shall not constitute a final order.
Pa.R.A.P. 341(a)-(c) (emphasis added).
Here, the January 19, 2016 order granting summary judgment in favor
of Kurtanich did not dispose of all claims and all parties; accordingly, it was
not a final order. Furthermore, on September 7, 2016, a default judgment
was entered against Baker, but the issue of damages remained unresolved.
Cf. Angelichio v. Myers, 110 A.3d 1046, 1050 (Pa. Super. 2015) (“The
sanction order entering judgment determined liability only, and thus, was
interlocutory in nature. A default judgment of this nature is not appealable
until judgment has also been entered on the issue of damages.”) (citations
omitted). Thus, it also was not a final order.2 The trial court’s June 12, 2017
order awarding damages to Appellant was a final order, as it disposed of all
claims and all parties. Appellant filed his notice of appeal from the June 12,
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2We note that neither party contends that, at the time the trial court granted
summary judgment in favor of Kurtanich, it had made an “express
determination that an immediate appeal would facilitate resolution of the
entire case.” See Pa.R.A.P. 341(c). Further, in its brief, Kurtanich does not
argue that the September 7, 2016 default judgment was a final appealable
order.
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2017 order on July 12, 2017. Therefore, Appellant timely filed his notice of
appeal, and his appeal permits review of the entire proceedings, including the
earlier entry of summary judgment in favor of Kurtanich. See Rohm and
Haas Co. v. Lin, 992 A.2d 132, 149 (Pa. Super. 2010) (“[A] notice of appeal
filed from the entry of the final order in an action draws into question the
propriety of any prior non-final orders. Once an appeal is filed from a final
order, all prior interlocutory orders become reviewable.”) (citations, original
brackets, and internal quotation marks omitted).
We now turn to the merits of Appellant’s issue. Appellant argues that
the trial court erred in disqualifying his expert witness, Robert Grine, at the
summary judgment stage. See Appellant’s Brief at 3. Appellant claims that
the trial court failed to consider record evidence demonstrating Mr. Grine’s
qualifications. See id. at 11. Specifically, Appellant asserts that:
In his Response to Motion for Summary Judgment, [Appellant]
denied Kurtanich’s allegation that Mr. Grine was not qualified to
render an opinion on an engineer’s standard of care and placed
his own allegations on the record as to Mr. Grine’s experience and
qualifications: Mr. Grine is a retired engineer and has worked on
numerous large-scale construction projects including multi-unit
apartment buildings and has overseen numerous projects from
the preliminary drafting stage to completion. He has worked as a
licensed land surveyor, architect, plan draftsman, project
engineer, and project manager on large construction projects
including the WPXI Building in Pittsburgh, the Nevillewood School
District K-12 building, and Sto Rox High School. Mr. Grine also
co-chaired the Ethics and Practice Committee for the Pennsylvania
Society of Professional Engineers (Pittsburgh Chapter) for nearly
ten years and served as a professor in architectural drafting and
mathematics.
Id. at 11-12 (internal citations omitted).
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Initially, we set forth our standard of review:
In evaluating the trial court’s decision to enter summary
judgment, we focus on the legal standard articulated in the
summary judgment rule. See Pa.R.C.P. … 1035.2. The rule states
that where there is no genuine issue of material fact and the
moving party is entitled to relief as a matter of law, summary
judgment may be entered. Where the nonmoving party bears the
burden of proof on an issue, he may not merely rely on his
pleadings or answers in order to survive summary judgment.
Failure of a non-moving party to adduce sufficient evidence on an
issue essential to his case and on which he bears the burden of
proof establishes the entitlement of the moving party to judgment
as a matter of law. Lastly, we will review the record in the light
most favorable to the nonmoving party, and all doubts as to the
existence of a genuine issue of material fact must be resolved
against the moving party.
Finder v. Crawford, 167 A.3d 40, 44 (Pa. Super. 2017) (citation omitted).
Moreover,
[d]etermining whether a witness may testify as an expert is a
matter within the sound discretion of the trial court, whose
decision will only be reversed for a clear abuse of discretion. In
order to qualify as an expert in a given field, a witness must
possess more expertise than is within the ordinary range of
training, knowledge, intelligence, or experience. The test to be
applied when qualifying a witness to testify as an expert witness
is whether the witness has any reasonable pretension to
specialized knowledge on the subject under investigation.
If a witness possesses neither experience nor education in the
subject matter under investigation, the witness should be found
not to qualify as an expert.
Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579, 591 (Pa.
Super. 2002) (internal citations and quotation marks omitted; emphasis in
original).
In deciding that Mr. Grine did not qualify as an expert, the trial court
explained:
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After reviewing the record and the case law in a light most
favorable to the nonmoving party, this [c]ourt finds that Mr. Grine
is not qualified to render an expert opinion as to whether …
Kurtanich fell below the professional standard of care for an
engineer. Although Mr. Grine states in his expert report that he
was personally involved in the final aspects of the project, that he
worked with [Appellant] to obtain the final occupancy permit and
that he had first-hand knowledge of many of the aspects of this
case from reviewing documents while working with [Appellant],
these statements alone are not enough to qualify him as an expert
witness in this case. See Exhibit C of … Kurtanich’s Motion for
Summary Judgment. While these statements may make him a
witness to the events in the case at hand, none of these assertions
establish that Mr. Grine has any knowledge, skill, experience,
training or education on the subject of professional engineering to
qualify him as an expert witness. Furthermore, Mr. Grine’s expert
report does not provide any information about Mr. Grine’s
credentials to establish his qualifications as an expert witness in
the field of engineering, and this [c]ourt cannot consider any of
the exhibits attached to [Appellant’s] brief as they are not a part
of the record. See Scopel [v. Donegal Mutual Insurance
Company, 698 A.2d 602, 606 (Pa. Super. 1997)]
(supplementation of the record cannot be achieved through mere
attachment to a party’s brief in opposition to a motion for
summary judgment). Therefore, the record is devoid of any
evidence that would qualify Mr. Grine as an expert witness
concerning the standard of care for a professional engineer.
TCO at 9-10.
We concur with the trial court that the record lacks evidence that would
qualify Mr. Grine as an expert witness regarding the standard of care for a
professional engineer. Appellant acknowledges that the trial court “did not
consider Mr. Grine’s affidavit as it was not part of the record because it was
filed only as an attachment to [Appellant’s] brief[,]” but nevertheless insists
that “there was other evidence in the record evincing Mr. Grine’s qualifications
and the [t]rial [c]ourt’s [o]pinion failed to consider that evidence.” Appellant’s
Brief at 11. Namely, he points to the denials and allegations he made in his
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response to Kurtanich’s motion for summary judgment. However, this Court
has previously stated that “the denials in [a party’s] response to the motion
for summary do not qualify as evidence of record.” Finder, 167 A.3d at 45
(footnote omitted). Indeed, Pennsylvania Rule of Civil Procedure 1035.1
states that the record, for summary judgment purposes, includes any “(1)
pleadings,[3] (2) depositions, answers to interrogatories, admissions and
affidavits, and (3) reports signed by an expert witness that would, if filed,
comply with Rule 4003.5(a)(1),[4] whether or not the reports have been
produced in response to interrogatories.” Pa.R.C.P. 1035.1 (note omitted).
Denials or allegations made in response to a motion for summary judgment
are not included under the rule. Consequently, we conclude that the trial court
did not abuse its discretion in ascertaining that the record did not include
evidence qualifying Mr. Grine as an expert witness concerning the standard of
care for a professional engineer. As a result, it properly granted Kurtanich’s
motion for summary judgment.5
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3 Pleadings, in turn, include: “(1) a complaint and an answer thereto, (2) a
reply if the answer contains new matter, a counterclaim or a cross-claim, (3)
a counter-reply if the reply to a counterclaim or cross-claim contains new
matter, (4) a preliminary objection and a response thereto.” See Pa.R.C.P.
1017(a) (notes omitted).
4Rule 4003.5 relates to the discovery of expert testimony. See Pa.R.C.P.
4003.5.
5 Appellant also challenges “Kurtanich’s argument that Mr. Grine was not
qualified as an expert … based solely on the fact that Mr. Grine did not hold
the same professional license as Kurtanich, but rather had been licensed as a
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Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/19/2018
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professional land surveyor.” Appellant’s Brief at 9 (footnote and citation to
record omitted). We need not address this argument, as the trial court based
its decision on the lack of record evidence establishing Mr. Grine’s credentials
in the field of engineering, and not merely because Mr. Grine did not have an
engineering license. Regardless of the license Mr. Grine holds, the record does
not demonstrate that Mr. Grine has experience or education in engineering,
as discussed above. See Yacoub, 805 A.2d at 591 (“If a witness possesses
neither experience nor education in the subject matter under investigation,
the witness should be found not to qualify as an expert.”).
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