Borel Builders, Inc. v. Burke, B.&P.

J-S35025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
BOREL BUILDERS, INC. : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
BRIAN AND PAMELA BURKE :
:
BRIAN AND PAMELA BURKE : No. 1445 MDA 2021
:
v. :
:
:
BOREL BUILDERS, INC. AND :
STEPHEN BOREL :
:
Appellant
Appeal from the Judgment Entered on March 2, 2022
In the Court of Common Pleas of Susquehanna County Civil Division at
No(s): 2017-00083 CP,
2017-01244 CP
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*
MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 24, 2023
Borel Builders, Inc. and its owner, Stephen Borel, (collectively, “Borel”)
appeal from the judgment entered on two related actions stemming from the
construction of the residential home of Brian and Pamela Burke. Borel argues
the court erred in sua sponte concluding that Borel had waived a statute of
limitations defense, finding that the defense lacked specificity, holding that
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* Former Justice specially assigned to the Superior Court.
J-S35025-22
Borel could not pursue a claim for quantum meruit/unjust enrichment, and
denying Borel’s claim for prejudgment interest. We affirm.
In May 2012, the Burkes contracted with Borel to construct a home for
$402,880. The contract allowed the Burkes to retain any money sufficient to
cover any non-conforming or incomplete work, and to hire a third-party to
complete or remedy the defective work after a 30-day period. Ex. B-1,
Agreement, at 3, Sec. 6. The contract stated that final payment would be due
when the Burkes began to occupy the home, except for any amount that they
had escrowed for incomplete or non-conforming work. Id. at 2, Sec. 3 and 3,
Sec. 6. The contract provided that payments due and unreasonably held would
incur interest of 5% per day after 10 days, unless the payment had been
withheld due to incomplete or non-conforming work. Id. at 3, Sec. 7.3. It also
included a provision allowing the Burkes to submit a list of complaints and
defects to Borel within one year of the date of occupancy and requiring Borel
to make any reasonable and necessary repairs, adjustments, or replacements
within 60 days of receipt of the list and for no additional cost. Id. at 2, Sec.
6.
The contract contained an integration clause stating that it “supersedes
prior negotiations, representations or agreements, either written or oral.” Id.
at 1 Sec. 1. It stated that “Modifications issued after execution of this
agreement shall be by work order requisitions with amounts of debit or credit
to be initialed by the contractor and owner.” Id. The contract further specified
that “Change orders will be executed upon receipt of request form signed by
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Contractor and at least one of the owners. Payment terms for each change
order will be mutually agreed upon and specified on each request.” Id. at 3
Sec. 7.10. The contract also stated that any modifications exceeding the
contract price “are to be paid out of owner funds.” Id. at 1 Sec. 1.
The “Proposal” section of the contract outlined the various materials to
be used and the total cost allowance for some areas (such as floor coverings).
It stated, “Customers are responsible for any costs that exceed allowances.”
Ex. B-2, Proposal, at 4.
The Burkes moved into the home in February or early March 2013 and
paid the contract price in full. See Trial Court Opinion, 10/8/21, at 5.1 In
January, February, April, and July 2013, and in February and March 2014, the
Burkes sent “punch lists” to Borel, requesting it make certain repairs or
alterations. See id. In February 2014, after performing some of the requested
work, Borel submitted an invoice for $42,968.25 (“the invoice”), which the
Burkes refused to pay.
Borel initiated suit against the Burkes in January 2017 by filing a
praecipe for a writ of summons. Borel thereafter filed a complaint alleging,
“During the course of the construction[,] the Burkes requested that changes
be made to the contract including, but not limited to, changes in materials and
fixtures allotted in the [c]ontract.” Borel Complaint at ¶ 5. The complaint
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1We will refer to the opinion issued by the court when it decided the matter
as the “Trial Court Opinion” and the opinion issued by the court pursuant to
Rule 1925(a) as the “Pa.R.A.P. 1925(a) Opinion.”
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stated that Borel “issued an invoice for the costs of the change orders” that
the Burkes refused to pay, making the Burkes “in breach of their obligations.”
Id. at ¶ 9-10, 14. Borel requested the full invoice amount plus statutory
interest. The complaint alleged that none of the items on the invoice had been
included in the punch lists. Id. at ¶ 12. Borel attached copies of the contract
and invoice to the complaint.
Rather than file a counterclaim, the Burkes filed a separate suit against
Borel in November 2017, by filing a praecipe for a writ of summons. The
subsequent complaint set forth claims for breach of contract and breach of
warranty based on defective workmanship and Borel’s failure to remedy the
items in the punch lists. The complaint also alleged the items in Borel’s invoice
“were never agreed upon.” Burkes’ Complaint at ¶ 17. The Burkes sought
damages exceeding $50,000.
Borel answered and raised new matter. In relevant part, Borel asserted
the Burkes’ “claims are barred by the applicable statute of limitations.” Borel’s
New Matter, 5/10/19, at ¶ 29. The Burkes answered that no response was
required to this legal conclusion. Burkes’ Answer to Borel’s New Matter,
9/30/19, at ¶ 29.
The trial court consolidated the two cases. It held a non-jury trial on
March 29 and June 28, 2021.
Relevant to this appeal, Counsel for Borel made the following argument
to the court regarding its statute of limitations defense:
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Next, we did make a number of affirmative defenses or make —
provide a number of affirmative defenses in our new matter. One
of those affirmative defenses was the statute of limitations in this
matter which is four years on a contract claim. The suit, the
Burkes’ suit was filed on November 17, 2017. The Burkes testified
and the exhibits show and as my client testified, that the Burkes
were in their house as of February 7, 2013, more than four years
passed between the time that they should have known of any
deficiencies when they brought suit. Indeed, all of the Burkes’
claims appear to be backed up by the testimony of Mr. Sincavage2
who claims that he was aware of the claimed deficiencies at the
time the work was performed, all of which was before the Burkes’
moved into the house. So, all of Mr. Sincavage’s knowledge came
about before February 7, 2013. Therefore, the Burkes are
presumed to be aware of that and I believe Mr. Sincavage testified
that he made them aware of the deficiencies before they moved
in. Mr. Sincavage also testified that he continually made the
Burkes aware of those deficiencies at the time that he became
aware of them. As such, because the Burkes were aware of the
claimed deficiencies, before they moved in the date of February
7, 2013, the Burkes had ample time to initiate suit prior to the
running of the statute of limitations. By reason that statute of
limitations ran prior to the filing of the suit, we ask this court to
dismiss the Burkes’ claims, remaining claims as a matter of law.
N.T., 6/28/21, at 86-87 (some apostrophes removed or moved). Counsel for
the Burkes responded that the statute of limitations had been tolled because
the breach was not “fully perfected” until the parties had abandoned their
attempts to resolve the dispute. Id. at 87-88.
The court entered a decision on October 12, 2021.3 On the Burkes’
breach of contract claim, it awarded $20,892.57 in compensatory damages
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2Paul Sincavage testified for the Burkes as an expert in the field of residential
construction.
3The court issued the order and opinion on October 8, 2021, but provided
Pa.R.C.P. 236 notice on October 12, 2021.
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based on Borel’s failure to rectify defective workmanship that had been
specified by the contract.4 It dismissed the Burkes’ breach of warranty claim
as redundant to the breach of contract action.
The court found Borel’s statute of limitations defense would have been
meritorious as to any defects the Burkes identified prior to November 17, 2013
(four years before they filed the writ of summons), but that the defense was
waived for lack of specificity in the pleading. Trial Ct. Op. at 24 (citing El-
Gharbaoui v. Ajayi, 260 A.3d 944 (Pa.Super. 2021)). In its Rule 1925(a)
opinion, the trial court explained that, although the Burkes had not raised a
waiver argument, “review of the adequacy of Borel Builders’ pleading was
necessary to ascertain whether the statute of limitation defense applied.”
Pa.R.A.P. 1925(a) Opinion, 12/10/21, at 3.
The court also awarded Borel $27,458.995 for its “breach of contract
claim as to failure to pay for overages/non-contractual work,” because the
contract specified the Burkes would be “responsible for any costs that exceed
allowances.” Trial Court Order, 10/8/21, at ¶ 8; Trial Ct. Op. at 28. The court
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4 This figure is comprised of $1,810.00 for improper framing lumber,
$7,944.75 for improper installation of the basement concrete floor, $3,010.00
for improper installation of the electrical system, $5,127.82 for improper
installation of the soffits, $500.00 for flawed tinting of the shower door, and
$2,500.00 for improper installation of the bathtub.
5 This figure includes $2,385 for additional insulation, $3,725.55 for plumbing,
$2,043.44 for flooring, $8,792.00 for a fireplace, and $12,150.00 for a granite
countertop, offset by credits that Borel owed to the Burkes for trim
($1,220.00) and electrical ($415.00). See Trial Ct. Op. at 28. While these
amounts total $27,460.99, and not $27,458.99, neither party has raised a
trial court error based on the two-dollar difference.
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denied Borel’s request for prejudgment interest on the compensation for these
items on the basis that the contract allowed the Burkes to withhold payment
for non-conforming work and did not state that interest would accrue. Trial
Ct. Op. at 30 n.10. It found “non-conforming work existed and . . . the parties
had a bona fide dispute over the conformity of the work.” Id.In its Rule 1925(a) opinion, the court explained that prejudgment
interest is only appropriate when payment due under a contract was
wrongfully withheld, but here, it found the contract permitted the Burkes to
withhold payment on contested overages and/or extra work. Pa.R.A.P. 1925
Op. at 9-10, 14, 16 n.14. The court observed that this contract provision did
not state that interest would accrue, in contrast to the clause providing for
interest for overdue payments. Id. at 13. The court found that the Burkes had
refused to pay the invoice only after Borel had failed to correct the non-
conforming work and the Burkes had resorted to paying other contractors to
correct the defects. Id. at 14. The court therefore concluded the Burkes had
not “wrongfully” withheld the payment for overage amounts.
The court also observed that prejudgment interest must be
ascertainable from the contract, and here, the Burkes had paid the full
contract price in a timely manner and the additional amount in dispute was
not ascertainable from the terms of the contract and not until the court had
decided the matter. Id. at 10-12 and n.10 (citing Section 354 of the
Restatement (Second) of Contracts and contrasting the facts of the instant
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case with those of Burkholder v. Cherry, 607 A.2d 745 (Pa.Super. 1992)).
The court noted,
To hold otherwise would put the [homeowners] in a situation
where, in order to avoid the imposition of prejudgment interest,
they would need to tender payment for any amounts-no matter
how questionable or unreasonable – that a contractor alleges are
due and owing, even if those amounts are outside the agreed
amount stated in the written contract.
Id. at 12 n.10.
The court found the Burkes were not liable to reimburse Borel for the
other items included in the invoice.6 The court observed that Borel’s
“complaint is based solely upon an alleged breach of the written contractual
agreement between the parties, which specifically required that any
modifications were to be written and approved by both parties.” Trial Ct. Op.
at 30; see also Pa.R.A.P. 1925(a) Op. at 5-6, 6 n.5 (observing that a copy of
the contract was attached to the complaint, and the complaint alleged that
the Burkes were “in breach” for failing to pay for change orders and did not
allege any non-contractual work or advance any quantum meruit/unjust
enrichment claims). The court noted Borel did not “file[] a claim for quantum
meruit or unjust enrichment relative to the work and/or materials provided
outside of the parties’ contractual agreement.” Trial Ct. Op. at 29 n.7.
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6 This included trim work, a booster pump, base partition work, well hookup,
porch screen materials upgrade, and the lower oak staircase. The invoice had
requested $12,830 for these materials and work. See Trial Ct. Op. at 29-30;
Pa.R.A.P. 1925(a) Op. at 9 n.8.
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The court found that as breach of contract claims, Borel’s claims for
these items failed because the contract had not been amended in writing with
change orders specifying the cost of the disputed items. Id. at 29-30 & n.8,
n.9. The court also found that the Burkes were not liable for the cost of these
items because, without amendment, the contract had not stated that these
items would incur overage costs.7 Trial Ct. Op. at 28.
In its Rule 1925(a) opinion, the court explained that it found the contract
was too broad regarding the disputed items to determine that they were not
covered or included in the contract price. Pa.R.A.P. 1925(a) Op. at 7-8. It also
explained that it found Borel’s quantum meruit/unjust enrichment claims
failed on the merits because Borel “failed to provide sufficient evidence to
demonstrate that the Burkes were not only aware of the additional work but
likewise understood that the work itself was outside the scope of the work
required under the parties’ written contract, understood the cost of the
additional work, and agreed to have it performed.” Id. at 5 n.4. It found
Pamela Burkes’ testimony that the Burkes believed the disputed items were
included in the contract price to be credible. Id. at 5 n.4, 8-9. The court
stated:
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7 Regarding the trim installation, the court found that the proposal identified
that trim work would be included but did not list any cost allowance other than
“To Be Assessed,” and did not state that the Burkes would be responsible for
the cost to install the trim. Trial Ct. Op. at 28-29. The Burkes purchased the
trim from an outside vendor, and the court concluded the cost to install the
trim was contemplated in the contract price. Id. In contrast, the court stated
that it found the other items were not included in the contract. Id. at 29-30.
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This is not a situation where the Burkes paid nothing to Borel
Builders; rather, this is situation where the Burkes paid the full
contractual amount, while they were still in the process of
attempting to get problems resolved by Borel Builders, only to be
provided with an additional bill after full payment contending that
they owed an additional $42,000. Given the equitable nature of a
quantum meruit claim, even assuming that Borel Builders had
conferred some benefit to the Burkes that was outside the parties’
written contractual agreement, the court finds that it would not
be unjust or unconscionable to allow them to retain that benefit
without further payment.
Id. at 8. The court found it was “especially true” that equity fell in favor of the
Burkes considering that Borel had used a lesser grade of lumber for framing
the home than had been required by the contract, for which Borel spent
“substantially less money.” Id. at 9 n.7, 14 n.12. The court also found that
Borel had failed to prove that the disputed items conferred a benefit on the
Burkes exceeding the contract price. Id. at 9 n.8.
Borel filed a Motion for Reconsideration, which the court denied.8 Borel
appealed.9, 10
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8 The court scheduled a hearing on the Motion, but then denied the Motion
after receiving a letter from Borel stating the court must act on the Motion
within the appeal period. See Order, 11/5/21.
9 Borel erroneously filed a notice of appeal from the decision entered on
October 12, 2021, before judgment was entered. We will deem the notice of
appeal filed on the date of the entry of judgment. See Pa.R.A.P. 905(a)(5);
McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 645 and n.4 (Pa.Super. 2013).
We have amended the caption to reflect that the appeal lies from the entry of
judgment on March 2, 2022.
10Although Borel only filed one notice of appeal referencing two trial court
docket numbers, we need not quash pursuant to Pa.R.A.P. 341(a), as the trial
court had consolidated the two civil matters and Borel filed the notice of appeal
(Footnote Continued Next Page)
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Borel raises the following issues:
1. Did the lower court abuse its authority when it sua sponte raised
a waiver issue to Borel’s claim that the four-year statute of
limitations applied to all of the Burkes’ claims?
2. Did the lower court err when it determined that Borel’s statute
of limitations defense contained in its new matter lacked
specificity and, therefore, was waived as a matter of law?
3. Did the lower court err when it held that Borel was not
permitted to seek damages against the Burkes for both an express
contract and unjust enrichment under a single cause of action in
the Borel Complaint?
4. Did the lower court err when it held that Borel was not entitled
to statutory interest based upon the Burkes’ entitlement to
withhold funds for non-conforming work?
Borel’s Br. at 4 (suggested answers omitted).
I. The Statute of Limitations
Borel’s first two issues relate to its statute of limitations defense. First,
Borel argues that the court abused its discretion and committed an error of
law by raising sua sponte that Borel had waived the defense by failing to plead
it with specificity. According to Borel, the Burkes did not raise this waiver
argument prior to, during, or after trial; rather, the court raised it for the first
time in its decision. Borel argues that because the Burkes did not raise the
issue in a preliminary objection, the Burkes waived it, and it was not properly
before the trial court. Borel posits that aside from jurisdictional defects, courts
should not raise arguments for the parties.
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at the lead docket number. See Always Busy Consulting, LLC v. Babford
& Co., Inc., 247 A.3d 1033, 1043 (Pa. 2021).
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Second, Borel argues that the court erred in determining the defense
failed for lack of specificity. Borel asserts that it “developed the factual
underpinnings of the defense at trial and argued the specific facts and law at
trial.” Borel’s Br. at 22. Borel provides citations to record evidence that it
claims proves the Burkes discovered each of the construction deficiencies for
which the trial court awarded them damages,11 over four years before they
commenced their breach of contract action in November 2017. Id. at 26. Borel
quotes the portion of trial transcript where it argued to the court that the
defense should apply. Borel points out that the court acknowledged in its
opinion that some of the Burkes’ claims would have been barred by a statute
of limitations defense, “if properly pled.” Id. at 25 (quoting Trial Ct. Op. at
24).
Whether a statute of limitations precludes an action is a matter of law,
unless it requires a factual determination. Kessock v. Conestoga Title Ins.
Co., 194 A.3d 1046, 1056 (Pa.Super. 2018). Our standard of review of
matters of law is de novo, and our scope of review is plenary. Id.A breach of contract claim must be brought within four years of the
breach. 42 Pa.C.S.A. § 5525(a)(1). If the action is based on a latent defect in
construction, the statute starts to run when the injured party becomes aware
of the defect or should have become aware through the exercise of due
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11 This includes improper framing lumber, improper installation of the
basement concrete floor, improper installation of the electrical system,
improper installation of the soffits, flawed tinting of the shower door, and
improper installation of the bathtub. See note 4, supra.
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diligence. A. J. Aberman, Inc. v. Funk Bldg. Corp., 420 A.2d 594, 599
(Pa.Super. 1980). However, attempts to repair construction defects will toll
the statute of limitations where the defendant represents the repairs will cure
the defects and the plaintiff relies on the representations. Keller v.
Volkswagen of Am., Inc., 733 A.2d 642, 646 (Pa.Super. 1999); Gustine
Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., L.P., 842 A.2d
334, 344 n.8 (Pa. 2004).12
In El-Gharbaoui, this Court affirmed the trial court’s denial of the
statute of limitations defense following post-verdict motions because the
appellant had only made a threadbare reference to the defense in his New
Matter. Appellant had not pleaded “the factual underpinnings” upon which the
defense rested. 260 A.3d at 963. We found waiver and affirmed on that basis,
even though the trial court had denied the defense after it erroneously
concluded that the defendant had raised it for the first time following trial. Id.
at 962;13 see also JRW Serv. Grp., LLC v. New Age Dev. Grp., LLC, No.
2309 EDA 2020, 2021 WL 1828481 at *2 (Pa.Super. 2021) (unpublished
memorandum) (affirming court’s denial of claim following post-verdict motion
on basis that defendant had waived claim by pleading it as a cursory legal
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12Likewise, the date the statute of limitations for breach of warranty actions
begins to run depends on whether the warranty explicitly extended to future
performance. See Cucchi v. Rollins Protective Servs. Co., 574 A.2d 565,
572-73 (Pa. 1990).
13We may affirm a trial court’s decision on any basis that is supported by the
record. See In re A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018).
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conclusion without any factual support, although trial court had denied claim
on different basis).
Pursuant to El-Gharbaoui, we find waiver. Borel’s pleading regarding
the defense stated only a cursory legal conclusion: that the “claims are barred
by the applicable statute of limitations.” Borel New Matter, 5/10/19, at ¶ 29.
Borel did not plead sufficient facts to substantiate the statute of limitations
defense.
Although the trial court raised the issue of waiver sua sponte, we discern
no error. Borel’s failure to plead or substantiate the defense with specificity
frustrated the trial court’s ability to decide the merits of the claim. We
therefore affirm its finding of waiver. Cf. Kreiss v. Main Line Health, Inc.,
No. 1396 EDA 2018, 2019 WL 2305747, at *8 (Pa.Super. 2019) (unpublished
memorandum) (rejecting appellant’s argument that appellee had waived
statute of limitations defense by failing to plead relevant facts; appellant never
raised waiver in preliminary objects, the defense was argued before the trial
court, and the court had been able to determine the defense had merit).
II. Borel’s Unjust Enrichment Claims
Borel next argues that the court erred in dismissing some of its claims14
on the basis that it had failed to plead quantum meruit/unjust enrichment.
Borel asserts that the invoice attached to its complaint plainly showed what
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14The court denied Borel’s request to be reimbursed for trim work, a booster
pump, base partition work, well hookup, porch screen materials upgrade, and
the lower oak staircase. See note 6, supra.
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work was done that was not included in the contract. Borel further argues that
although it “did not divide its contract theories of recovery into separate
causes of action to discern the different contractual relationships involved,”
this “does not limit Borel from obtaining judgment against the Burkes under
every type of contractual relationship.” Borel’s Br. at 29. Borel contends that
pleadings for breach of contract may be amended to included quantum meruit,
where the facts at issue are consistent. Borel further argues that its counsel
argued at trial that Borel was seeking damages under theories of express,
implied, and constructive contracts. Borel asserts it also proved at trial that it
performed the relevant work at the request of the Burkes, and that these
items were not contemplated in the contract.
We need not determine whether the court erred in concluding Borel had
waived his claims quantum meruit/unjust enrichment by failing to plead them
in the complaint, because we affirm the court’s findings that these claims fail
on their merits.15
“Quantum meruit is an equitable remedy to provide restitution for unjust
enrichment in the amount of the reasonable value of services.” Durst v.
Milroy Gen. Contracting, Inc., 52 A.3d 357, 360 (Pa.Super. 2012) (quoting
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15 We accept the findings of fact of a court sitting in equity, where supported
by competent evidence, but review the court’s legal conclusions for an abuse
of discretion or error of law. Wilson v. Parker, 227 A.3d 343, 352 (Pa.Super.
2020).
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Am. & Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., 2 A.3d 526, 532 fn. 8
(Pa. 2010)).
Where unjust enrichment is found, the law implies a contract,
which requires the defendant to pay to the plaintiff the value of
the benefit conferred. The elements necessary to prove unjust
enrichment are:
(1) benefits conferred on defendant by plaintiff; (2)
appreciation of such benefits by defendant; and (3)
acceptance and retention of such benefits under such
circumstances that it would be inequitable for defendant to
retain the benefit without payment of value. The application
of the doctrine depends on the particular factual
circumstances of the case at issue. In determining if the
doctrine applies, our focus is not on the intention of the
parties, but rather on whether the defendant has been
unjustly enriched.
Id. (quoting Mitchell v. Moore, 729 A.2d 1200, 1203-04 (Pa.Super. 1999)
(citations omitted). Because the critical question is whether the benefit is
“unjust,” “[t]he doctrine does not apply simply because the defendant may
have benefited as a result of the actions of the plaintiff.” McCabe v.
Marywood Univ., 166 A.3d 1257, 1264 (Pa.Super. 2017) (citation omitted).
The court, sitting in equity, considered that the parties’ relationship was
governed by a written contract that required written, signed change orders,
and that Borel had not presented any such orders to the Burkes after they
discussed the disputed items to obtain their consent for any additional costs.
The court found Pamela Burkes’ testimony credible and concluded that the
Burkes had believed the disputed items were included in the contract price;
the court itself could not determine that the items were not included in the
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contract price. The court also found that allowing the Burkes to retain the
alleged $12,830 in benefits would not be unjust, as Borel did not prove that
these items did not make the cost of the project exceed the contract price,
and because Borel had already saved a considerable sum during construction
by using a lower-grade lumber than had been required by the contract.
These conclusions are supported by the record, and the court did not
err or abuse its discretion in determining that Borel was not entitled to
reimbursement for these items on a theory of quantum meruit/unjust
enrichment.
III. Statutory Interest
Borel argues that the court abused its discretion and erred when it
denied Borel’s claim for statutory interest. Borel argues that there was no
evidence and no finding that the items for which the court awarded it contract
damages16 were due to incomplete or non-conforming work; therefore, the
Burkes did not have the right under the contract to withhold payment for this
work. Borel also argues that although the Burkes could withhold payment for
incomplete work, the contract provided they were to escrow those funds,
which the Burkes did not do. Borel additionally argues that the Burkes waived
this argument, as it did not raise as a defense that statutory interest was not
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16 This includes $2,385 for additional insulation, $3,725.55 for plumbing,
$2,043.44 for flooring, $8,792.00 for a fireplace, and $12,150.00 for a granite
countertop. See note 5, supra.
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permitted under the contract because of the provision allowing them to
withhold funds for deficient work.
Borel further argues that the amounts due were ascertainable, as they
were itemized in the invoice. Borel asserts that the law provides that
prejudgment interest must be awarded regardless of the Burkes’ good faith in
contesting the payment. Borel also alleges that the Burkes did not withhold
the payment out of good faith, as Pamela Burke testified that she did not even
review a copy of the invoice until trial.
We review an award of prejudgment interest for an abuse of discretion.
Cresci Constr. Servs., Inc. v. Martin, 64 A.3d 254, 258 (Pa.Super. 2013).
We affirm the trial court’s denial of prejudgment interest in this case on the
basis that the damages are not ascertainable from the contract.
Prejudgment interest “must be awarded notwithstanding the good faith
of the party contesting the claim.” Pittsburgh Const. Co. v. Griffith, 834
A.2d 572, 590 (Pa.Super. 2003). Interest is due even where the award is
based on quantum meruit, where “the claim is for work done and services
rendered.” Burkholder, 607 A.2d at 748. “The basic premise underlying the
award of prejudgment interest to a party centers upon the fact that the
breaching party has deprived the injured party of using interest accrued on
money which was rightfully due and owing to the injured party.” Somerset
Cmty. Hosp. v. Allan B. Mitchell & Assocs., Inc., 685 A.2d 141, 148
(Pa.Super. 1996).
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However, “[t]he disputed amount must be either specified in the
contract or ascertained from the terms of the contract such that at the time
of the breach, the breaching party can proffer a tender.” Cresci Const.
Servs., Inc., 64 A.3d at 265. “Where the amount due and owing is not
sufficiently definite, prejudgment interest is awardable at the discretion of the
trial court.” Ely v. Susquehanna Aquacultures, Inc., 130 A.3d 6, 15
(Pa.Super. 2015) (citing Cresci Constr. Servs., Inc., 64 A.3d at 260).
Here, the contract required the Burkes to pay a definite sum—$402,880.
The Burkes paid that amount. Without any other written changes, Borel
subsequently sent the Burkes an invoice for an additional $42,968.25. The
trial court determined that the Burkes did in fact owe Borel a portion of this
amount ($27,458.99), because the Burkes had requested Borel upgrade some
of the areas/items definitively included in the contract in excess of the stated
“allowance” for that area. However, the court found that the monetary
amounts for these items were not defined by the terms of the contract, and
we agree. Neither the contract nor any modification to the contract specified
that the Burkes would be responsible for $2,385 for additional insulation,
$3,725.55 for plumbing, $2,043.44 for flooring, $8,792.00 for a fireplace, or
$12,150.00 for a granite countertop. As these amounts were not ascertainable
from the contract, the court did not abuse its discretion in denying Borel’s
claim for prejudgment interest.
Judgment affirmed.
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J-S35025-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 01/24/2023
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