Independent Enterprises v. JD Fields

J-A07041-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
INDEPENDENT ENTERPRISES, INC. IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JD FIELDS & CO., INC.
Appellant No. 1421 WDA 2014
Appeal from the Judgment Entered August 4, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-013078
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
MEMORANDUM BY MUNDY, J.: FILED MARCH 26, 2015
Appellant, JD Fields & Co., Inc. (JD Fields), appeals from the August 4,
2014 judgment of $38,601.66 entered, after a jury trial, in favor of Appellee,
Independent Enterprises, Inc. (Independent). After careful review, we
affirm.
The trial court summarized the relevant factual and procedural history
of this case as follows.
[Independent] is a construction company
specializing in utility contracting involving water and
sewer line work. [JD Fields] is a supplier of sheet
piling products. [Independent] purchased sheet
piling material from [JD Fields] … to build a
cofferdam in its efforts to complete a construction
project. Sheet piling consists of long, flat sheets of
steel that slide together to form a solid wall. These
temporary cofferdams are used to keep water out of
a work area.
J-A07041-15
[On July 27, 2012 Independent] filed this
action against [JD Fields] asserting that said sheet
piling supplied by [JD Fields] was defective, causing
[Independent] to incur additional labor and
equipment costs to install and remove the defective
material.
In February of 2012, [Independent] first
contacted [JD Fields] to obtain information about its
interlocking sheet piling products. [Independent]
maintains that at said time the purpose of their
project was explained to [JD Fields]; and based on
[Independent]’s needs, [JD Fields] suggested the
use of a specific product, Hoesch 1205k interlocking
sheet piling. The marketing materials distributed by
[JD Fields] represented that the product, among
other things, shall have adequate free play so that
the piles can be fitted into each other.
On February 28, 2012, [Independent] issued
Purchase Order 51359 (hereinafter “PO”). Said
order was a request for 143,985 pounds of Hoesch
1205k sheet piling to be delivered on site in
Pittsburgh for the price of $98,629.73. On March 8,
2012, [JD Fields] delivered 143,985 pounds of said
material to said site.
[Independent] maintains that as installation of
the sheet piling began, its employees immediately
experienced a defect in the interlocking mechanism.
Specifically, the interlocking mechanism did not
contain adequate free play to allow the sheet pilings
to be easily joined together. [Independent] further
maintained that its employees had substantial
experience and training with sheet piling as the
installers were members of the local Millwrights and
Pile Drivers Union. [Independent] asserted that the
contractors had never experienced sheet piling that
fit together so poorly. [Independent never paid the
invoice for the purchase price of the sheet piling.]
[Independent] claimed that the failure of the
sheet piling to conform to the requirements or to [JD
Fields’] published specifications constituted a breach
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of contract. [Independent] further claimed that the
sheet pilings[’] failure to conform to the assertions
made in the publication provided by [JD Fields], i.e.
the product could be easily joined, constituted a
breach of an express warranty.
…
This matter was initiated by a [c]omplaint filed
by [Independent] on July 27, 2012. Following a brief
round of preliminary objections challenging both the
venue and facts, [JD Fields] filed an [a]nswer, [n]ew
[m]atter and [c]ounterclaim on December 19, 2012
[for $104,547.51, the total amount of the purchase
price for the sheet piling it provided]. The case was
then listed for trial.
The parties were before [the trial court] in late
March of 2014, and after argument on [m]otions in
[l]imine were held, a three (3) day jury trial took
place. At the conclusion of said trial, a [v]erdict was
rendered in favor of [Independent] and against [JD
Fields] in the amount of $90,875.42 and a verdict
was entered in favor of [JD Fields] in its counter
claim [sic] in the amount of $52,273.76.[1] The
verdict was later molded by the [trial c]ourt to reflect
an award in favor of [Independent] in the amount of
$38,601.66.
[JD Fields] timely filed a [m]otion for [p]ost-
[t]rial [r]elief. Following argument on said [m]otion
for [p]ost-[t]rial [r]elief, [the trial court] entered an
[o]rder on July 1, 2014 denying [the] same.
Judgment on the [v]erdict was entered on August 4,
2014, in the amount of $38,601.66. [JD Fields] filed
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1
The jury’s award of $90,875.42 in favor of Independent was based on the
invoices it submitted regarding the extra equipment, labor, and two
subcontractor costs associated with the sheet piling provided by JD Fields.
As we explain infra, $52,273.76 was 50% of the JD Fields’ invoice, rounded
upward to the nearest penny.
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a [timely n]otice of [a]ppeal to [this Court] on
August 28, 2014.[2]
On September 3, 2014, [the trial c]ourt
directed … JD Fields to file a [c]oncise [s]tatement of
matters [c]omplained of on [a]ppeal pursuant to
Pennsylvania Rule of Appellate Procedure … 1925(b).
Said statement was timely filed on September 24,
2014, placing this matter properly before [this Court.
The trial court filed its Rule 1925(a) opinion on
October 29, 2014].
Trial Court Opinion, 10/29/14, at 1-4 (internal quotation marks omitted).
On appeal, JD Fields presents the following five issues for our review.
1. Whether expert testimony on the performance
and characteristics of steel construction
material known as sheet piling and the time it
should take to install such sheet piling, the
knowledge of which requires special skill and
training, was necessary to prove a construction
delay claim based on an alleged defect?
2. Whether the trial court erred in admitting
opinion testimony about the existence of a
“defect” in the sheet piling and the amount of
time that would “normally” be required to
install sheet piling where such testimony was
provided by fact witnesses who had not been
qualified or offered as expert witnesses?
3. Whether the evidence admitted at trial would
not allow any reasonable jury to determine
that [JD Fields] breached a contract for the
sale of sheet piling to [Independent] in its
provision of the sheet piling or that
[Independent] established any damages with
reasonable certainty?
____________________________________________
2
Independent has not filed a cross-appeal.
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4. Whether, as a matter of law and upon
consideration of the evidence at trial, it was
error for the trial court to deny JD Fields’
motion to set aside the verdict and grant
additur to the verdict in its favor because, in
the absence of any evidence disputing the
amount of JD Fields’ damages, no two
reasonable minds could disagree that the
outcome should have been in favor of JD Fields
for the amount of its invoice and JD Fields
established with reasonable certainty that it
had suffered damages in a sum certain amount
of $104,547.51?
5. Whether the trial court erred in failing to grant
remittitur because the damages award to
[Independent], granting it in essence more
than its damages claim, was neither fair nor
reasonable and instead was excessive,
arbitrary, and not supported by the evidence,
and shocked the conscience so as to suggest a
mistake?
JD Fields’ Brief at 5-6.
We begin by noting our standards of review regarding judgment
notwithstanding the verdict (JNOV) and the awarding of a new trial.
In reviewing a trial court’s decision whether or
not to grant judgment in favor of one of the parties,
we must consider the evidence, together with all
favorable inferences drawn therefrom, in a light most
favorable to the verdict winner. Our standard[s] of
review when considering motions for a directed
verdict and judgment notwithstanding the verdict are
identical. We will reverse a trial court’s grant or
denial of a judgment notwithstanding the verdict
only when we find an abuse of discretion or an error
of law that controlled the outcome of the case.
Further, the standard of review for an appellate court
is the same as that for a trial court.
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There are two bases upon which a judgment
N.O.V. can be entered; one, the movant is entitled to
judgment as a matter of law and/or two, the
evidence is such that no two reasonable minds could
disagree that the outcome should have been
rendered in favor of the movant. With the first, the
court reviews the record and concludes that, even
with all factual inferences decided adverse to the
movant, the law nonetheless requires a verdict in his
favor. Whereas with the second, the court reviews
the evidentiary record and concludes that the
evidence was such that a verdict for the movant was
beyond peradventure.
Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa. Super. 2010) (citation
omitted), affirmed, 55 A.3d 1088 (Pa. 2012).
Our review of the trial court’s denial of a new
trial is limited to determining whether the trial court
acted capriciously, abused its discretion, or
committed an error of law that controlled the
outcome of the case. In making this determination,
we must consider whether, viewing the evidence in
the light most favorable to the verdict winner, a new
trial would produce a different verdict.
Consequently, if there is any support in the record
for the trial court’s decision to deny a new trial, that
decision must be affirmed.
Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)
(citations omitted).
We elect to address JD Fields’ third issue first, as a ruling in its favor
on this issue would entitle it to judgment. In its third issue, JD Fields avers
that it is entitled to JNOV because “the evidence was, as a matter of law,
insufficient to create an issue of fact for the jury, and JD Fields was entitled
to a verdict in its favor.” JD Fields’ Brief at 34. Specifically, JD Fields argues
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that the evidence is insufficient to establish that it breached its contract with
Independent and that Independent established its damages with reasonable
certainty. Id. at 34-35.
Generally, “[t]o successfully maintain a cause of action for breach of
contract the plaintiff must establish: (1) the existence of a contract,
including its essential terms, (2) a breach of a duty imposed by the contract,
and (3) resultant damages.” Albert v. Erie Ins. Exch., 65 A.3d 923, 928
(Pa. Super. 2013) (citation omitted). Furthermore, with regard to damages,
our Supreme Court has noted the following.
Where one party to a contract without any legal
justification, breaches the contract, the other party is
entitled to recover, unless the contract provided
otherwise, whatever damages he suffered, provided
(1) they were such as would naturally and ordinarily
result from the breach, or (2) they were reasonably
foreseeable and within the contemplation of the
parties at the time they made the contract, and (3)
they can be proved with reasonable certainty.
Helpin v. Trustees of Univ. of Pa., 10 A.3d 267, 270 (Pa. 2010).
Additionally, “Pennsylvania law has never required proof of such damages to
a mathematical certainty. This Court has long held that the evidence
necessary to establish damages is no more than ‘the best evidence
available.’” Hatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1237
(Pa. Super. 2012) (internal citations omitted), appeal denied, 65 A.3d 414
(Pa. 2013). As an appellate court, “[i]f the verdict bears a reasonable
resemblance to the damages proven, we will not upset it merely because we
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might have awarded different damages.” Newman Dev. Grp. of
Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 659-660
(Pa. Super. 2014) (en banc) (citation omitted).
As the trial court notes, “[t]his cause of action was merely to
determine whether the product supplied by [JD Fields] met the
representations made by [JD Fields], i.e., that the sheet piling supplied by
[JD Fields] allowed for adequate ‘free play’ as promised.”3 Trial Court
Opinion, 10/29/14, at 7-8. In this case, Independent elicited testimony on
direct examination from Jack Cargoni, an operating engineer and owner of
Independent, that the bulk of the sheet piling had “free play” issues after
delivery.
Q: You heard [other witnesses] describe the
problems that they experienced with the sheet
piling?
A: That’s correct.
Q: And did you observe them taking these steps
to try to fit the sheet piling together?
A: I was involved with it. 100 percent throughout
the whole ordeal.
…
Q: What did you do once those problems started?
____________________________________________
3
Independent refers to this as an “express warranty” regarding the sheet
piling. Independent’s Brief at 12. JD Fields does not challenge this
characterization. See generally JD Fields’ Reply Brief at 2 n.1.
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A: Whenever -- as soon as we started having
problems, big problems as far as the sheets
not going in at all, we had minor problems to
start with and then we started having major
problems, and that’s when I got ahold of the
office to get ahold of Geno Shore to get ahold
of JD Fields and have a representative sent out
immediately.
Q: Now, we said there are 85 pairs. Did every
one of these 85 pairs not fit together?
A: No. There was some that mated up. Some
that mated up.
Q: Slid together?
A: Slid together. And there was some that just
didn’t slide together at all.
Q: As a percentage of the whole, how many of
them did you have -- how many sheets did you
have problems with?
A: 75 percent of them.
N.T., 3/25/14, at 172-173. JD Fields’ own witness, Dan Abbondanza, who
was called to the site after Independent reported the problems,
acknowledged that 25% of the sheet piling had this issue. Id. at 266.
As to damages, Cargnoni testified that he drew up an invoice for the
extra costs associated with the sheet piling provided by JD Fields, including
additional labor costs. N.T., 3/25/14, at 184. Cargnoni divided such costs
into four distinct categories, equipment, labor, and two contractor-
subcontractor categories. Id. at 185. Cargnoni explained to the jury how
each line was calculated in detail. Id. at 185-189. Cargnoni sent the
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invoice to JD Fields, but it did not pay said invoice. Id. at 189. Cargnoni
later adjusted the labor costs downward in a second invoice. Id. at 191-
192. These invoices were admitted without objection. Id. at 184, 235.
Although JD Fields points out inconsistencies in Independent’s
witnesses’ testimony regarding damages, these inconsistencies do not
render Independent’s evidence insufficient. See DeArmitt v. N.Y. Life Ins.
Co., 73 A.3d 578, 593 (Pa. Super. 2013) (stating with regard to calculation
of damages, “[a]lthough the factfinder may not render a verdict based on
sheer conjecture or guesswork, it may use a measure of speculation in
estimating damages[]”) (citation omitted); Epstein v. Saul Ewing, LLP, 7
A.3d 303, 314 (Pa. Super. 2010) (stating, “[w]here the evidence of damages
presented by the plaintiff is contested by the defendant, the jury in a civil
action does not have to accept the plaintiff’s measure of damages because
the jury is free to accept all, part, or none of the evidence[]”) (citation
omitted), appeal denied, 20 A.3d 1212 (Pa. 2011). Based on these
considerations, we conclude there is evidence in the record for the jury to
conclude that Independent proved breach and damages by a preponderance
of the evidence. See Reott, supra. As a result, JD Fields is not entitled to
relief on this issue.
We next address JD Fields’ first and second issues together, as they
are interrelated. In its first issue, JD Fields argues that Independent was
required to provide expert testimony to establish “the purported cause of
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any installation issues with the [s]heet [p]iling.” JD Fields’ Brief at 25. JD
Fields further avers that Independent failed to “present expert testimony to
allow the jury to conclude that any such installation issues caused [it] to
suffer a delay, and thus damages, on the River Crossing Project.” Id. In its
second issue, JD Fields argues that Independent’s witnesses who testified to
the subject matters of “the performance and characteristics of sheet piling,
[the] installation time for sheet piling, and whether the [s]heet [p]iling had
adequate free play[]”offered only inadmissible lay opinion evidence. Id. at
30. Our standard of review with regard to evidentiary issues at trial is well
settled.
When we review a trial court ruling on
admission of evidence, we must acknowledge that
decisions on admissibility are within the sound
discretion of the trial court and will not be
overturned absent an abuse of discretion or
misapplication of law. In addition, for a ruling on
evidence to constitute reversible error, it must have
been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied, or the judgment exercised
is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).
Pennsylvania Rules of Evidence 701 and 702 describe the interplay
between lay witnesses and expert witnesses.
Rule 701. Opinion Testimony by Lay Witnesses
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If a witness is not testifying as an expert, testimony
in the form of an opinion is limited to one that is:
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.
Rule 702. Testimony by Expert Witnesses
A witness who is qualified as an expert by
knowledge, skill, experience, training, or education
may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge is beyond that possessed by
the average layperson;
(b) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue; and
(c) the expert’s methodology is generally accepted in
the relevant field.
Pa.R.E. 701, 702.
JD Fields points to several cases in which the courts of this
Commonwealth have held expert testimony was required to assist the trier
of fact. In Electron Energy Corp. v. Short, 597 A.2d 175 (Pa. Super.
1991), affirmed, 618 A.2d 395 (Pa. 1993), this Court held that expert
testimony was required in a breach of contract action in order to show that
there was a breach of “a duty to design a [heating and cooling] system up to
reasonable professional standards[.]” Id. at 180. JD Fields also points to
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the Commonwealth Court’s decision in Tennis v. Fedorwicz, 592 A.2d 116
(Pa. Cmwlth. 1991) in which it concluded that expert testimony was
“indispensable for proving that the road was negligently designed.”4 Id. at
117.
In this case, Independent presented the testimony of Arthur
Klajnowski. Before Klajnowski began his testimony, the trial court cautioned
counsel that Klajnowski was not to give any expert opinion, but rather “[h]e
can only talk about facts, what he actually saw on the job.” N.T., 3/24/14,
at 48. Klajnowski had been employed with the local pile drivers’ union for
27 years. Id. at 50. Klajnowski worked on this particular job with
Independent and he explained the difficulties he faced working with this
sheet piling on this specific job.
Q: Can you describe for the jury what the problem
is that you experienced on this job?
A: The sheet piling would not go together. It
would not run. Meaning -- by run, I mean
when you drop it, it is supposed to go down to
the bottom. It wasn’t doing that.
Q: When you drop it, describe for the jury when
you drop it.
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4
We note that “[t]his Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super.
2010) (citations omitted), appeal denied, 12 A.3d 371 (Pa. 2010).
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A: With the crane. You have the crane and let
them come down on it. They are supposed to
slide together.
…
Q: What did you have to do to deal with the
difficulty in sliding these pieces together?
A: We actually had to get an air tugger and burn
holes in the bottom of the sheet, hook them to
the template and drag them down.
Q: What is an air tugger?
A: It is actually like a chain pull. It is a chain with
hooks on either end powered by air that turns
and pulls the sheet piling down.
…
Q: Did you do anything else? Did you have to do
anything else besides use an air tugger?
A: Yes. They actually greased the sheets first and
then they decided to use soap on them to try
to get them to slide.
Q: Did that help?
A: Not really.
Q: Did you try anything else other using an air
tugger and greasing or soaping the channels?
A: We used a vibratory hammer that you’re
supposed to use to drive the sheets down once
they are in. We used -- looks like a hairpin.
That’s what we call it. It is just weight to get
on top of the sheet and try to push it with that.
Id. at 55-59.
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Independent also called Michael Pape, its foreman on this project, to
testify to the sheet piling and the problems that he encountered.
Q: Tell us what you understand sheet piling to be.
A: It is an interlocking system for whatever kind
of work, shoring or dirt jobs, cofferdams or
whatever need be.
…
Q: Tell us very succinctly the problem with the
sheet piling on this project.
A: The sheet piling wouldn’t go together.
Q: What solutions did you try to employ to solve
that?
A: We cut the tips of the sheet piling that was
already instituted in the river. We cut a notch
out in the sheet piling that we are going to
bring into the river, we do cut a notch out to
try to get it going and it catch the notch where
you already have a couple inches going in
there and we would soap it up with a lubricant
to try to get it to slide together.
Q: Are you on site when you removed the sheet
piling in this case?
A: Yes.
Q: Were there any problems removing the sheet
piling from the river?
A: Yes.
Q: What were the problems?
A: We couldn’t get them -- some of them would
pull apart and we had trouble. You go to pull
one out and you would be pulling three or four
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sheets at one time to get them out, so we got
-- instead of trying to separate them and get
them out, we would swing them off the river
and lay them on the ground and try to pull
them apart with an excavator so we could get
them on the truck and load them up.
Q: Had you had to use excavators to pull them
apart on a prior sheet piling project that you
worked on?
A: No. We slid them apart.
Id. at 72, 89-90.
Here, the trial court concluded that expert testimony was not required
in this case based on the following.
[The trial court] heard nothing prior to or
during the trial to convince the [trial] court that the
jury would need the assistance of an expert with the
concept of two pieces of sheet metal not fitting
together. Nor did [the trial court] hear any
testimony from either side that sounded too highly
technical or beyond a layperson’s understanding.
The case sub judice was not a professional
malpractice action or complex products liability
matter involving complex language or techniques
necessitating opinions proffered by an expert, nor
does the instant case involve a design defect of a
technical nature. This cause of action was merely to
determine whether the product supplied by [JD
Fields] met the representations made by [JD Fields],
i.e., that the sheet piling supplied by [JD Fields]
allowed for adequate “free play” as promised.
Trial Court Opinion, 10/29/14, at 7-8.
After careful review, we agree with the trial court’s reasoning and
conclusion. Unlike Electron Energy Corp. and Tennis there was no
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requirement that the jury needed to find that JD Fields breached a duty of
care or that the sheet piling had a design defect. As Independent argues, it
does not matter why the sheet piling did not fit together as promised, just
that it did not do so. Independent put forth factual evidence in the form of
testimony from Klajnowski and Pape as to what occurred with this particular
shipment of sheet piling on this specific construction job. This did not cross
into the realm of impermissible expert opinion under Rule 702, nor was it
improper lay opinion under Rule 701. Rather, Klajnowski and Pape testified
to what they observed personally regarding this product on this job, as a
matter of fact, not as a matter of opinion.5 Cargnoni testified that he
expected to install 15 to 20 piles in an eight-hour shift, this answer was
based on his experience, and was his estimate for this project. See
generally N.T., 3/24/14, at 162. Klajnowski testified, based on his
experience, that one could put 158 sheets in per day. Id. at 63. Based on
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5
JD Fields highlights one instance where Klajnowski stated that the sheet
piling was “supposed to fit together[.]” N.T., 3/24/14, at 55. However, the
record reveals that JD Fields immediately objected, the trial court sustained
JD Fields’ objection, and JD Fields requested no further relief from the trial
court. Id. at 56. As the trial court ruled in JD Fields’ favor on this specific
instance, it cannot complain about it on appeal. See generally Coffey v.
Minwax Co., Inc., 764 A.2d 616, 622 (Pa. Super. 2000). In its brief, JD
Fields complains that Klajnowski gave expert testimony when he stated that
other factors did not cause the problems they had with the sheet piling. JD
Fields’ Brief at 32; N.T., 3/24/14, at 61. However, we note JD Fields did not
object to this question, thus waiving the issue on appeal. See id.
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these considerations, we conclude the trial court did not abuse its discretion
with regard to these issues. See Phillips, supra.
Finally, we elect to address JD Fields’ fourth and fifth issues together,
as they pertain to the damage awards in this case. In its fourth issue, JD
Fields argues that the jury should have awarded damages on its
counterclaim in the amount of $104,547.51. JD Fields’ Brief at 38. It
argues that because the parties stipulated to the existence of the contract,
which contained a purchase price of $104,547.51, and Independent “offered
no evidence to discount the amount of damages cause[d] to JD Fields by
[Independent’s] refusal to pay the invoice[,]” JD Fields should have been
awarded the invoice amount in full. Id. at 38-39. JD Fields also argues that
it is entitled to prejudgment interest at the rate of six-percent per annum
beginning on April 8, 2012. Id. at 41. Finally, in its fifth issue, JD Fields
avers that it is entitled to remittitur because the jury’s $90,875.42 award to
Independent on its claim “was neither fair nor reasonable.” JD Fields’ Brief
at 42. JD Fields further argues that Independent “was more than made
whole for its purported and unsupported damages and put into a position
better than if the contract between the parties had been performed.” Id.
As noted above, “[w]here an appellant’s claim arises from a challenge
to the jury’s determination of damages, our review is highly circumspect.”
Helpin, supra at 601 n.9.
The duty of assessing damages is within the province
of the fact-finder and should not be interfered with
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unless it clearly appears that the amount awarded
resulted from partiality, caprice, prejudice,
corruption or some other improper influence.
Generally, a verdict will not be disturbed merely on
account of the smallness of the damages awarded or
because the reviewing court would have awarded
more. To support the granting of a new trial for
inadequacy, the injustice of the verdict should stand
forth like a beacon. So long as the verdict bears a
reasonable resemblance to the damages proved, it is
not the function of the court to substitute its
judgment for that of the jury.
Epstein, supra (citation omitted). In addition, we note our standard of
review of a denial of remittitur is whether or not the trial court abused its
discretion. Paliometros v. Loyola, 932 A.2d 128, 134 (Pa. Super. 2007)
(internal citations omitted).
In this case, the parties appear to agree that the purchase price for
the sheet piling was $104,547.51. JD Fields’ Brief at 38; Independent’s Brief
at 13. As noted above, Independent’s witness testified that 75% of the
sheet piling that was delivered did not fit together. N.T., 3/25/14, at 173.
JD Fields’ witness, Abbondanza, testified that 25% of the sheet piling had
this issue. Id. at 266. The mean and median between these two
percentages is 50%. The jury awarded JD Fields $52,273.76 on its
counterclaim, which is 50% of the purchase price agreed to by the parties,
rounded upward to the nearest penny. See generally JD Fields’ Brief at 38;
Independent’s Brief at 13. As the trial court noted, “the jury simply
reconciled the testimony to accept the fact that half of said sheets would not
allow for adequate ‘free play’ and awarded their damage figure accordingly.”
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Trial Court Opinion, 10/29/14, at 8. As there is a basis for the jury’s
decision, as an appellate court, we will not substitute our judgment for the
jury or grant additur because this Court might “have awarded more.”
Epstein, supra. In addition, we further conclude that remittitur is not
warranted. The jury’s verdict in this case found that Independent was 50%
liable for the purchase price of the sheet piling that Independent received.
Therefore, Independent did not receive a windfall as JD Fields argues, and
the jury’s verdict does not shock the conscience. We hence conclude that
the trial court did not err or abuse its discretion when it denied additur or
remittitur in this case. See id.; Paliometros, supra.
Turning to the prejudgment interest portion of its argument, JD Fields
relies on Section 354 of the Restatement (Second) of Contracts in support of
its argument.6 JD Fields argues that it is entitled as of right to prejudgment
interest under Section 354(1) of the Restatement, as the issue in this case
____________________________________________
6
Independent argues that JD Fields waived this issue “by failing to raise the
issue at trial, and by failing to request an instruction to the jury on the same
during the charging conference.” Independent’s Brief at 14. However, this
Court has held that “even if the issue of prejudgment interest was not
submitted to the jury, the trial court may mold the verdict to include it.”
Verner v. Shaffer, 500 A.2d 479, 482 (Pa. Super. 1984); see also
McMahon v. Caravan Refrigerated Cargo, Inc., 594 A.2d 349, 352 (Pa.
Super. 1991) (distinguishing Verner and concluding the prejudgment
interest issue was waived because, unlike Verner, “the issue of pre-
judgment interest was not raised in appellee’s post-trial motions[]”). JD
Fields raised the issue of prejudgment interest in its post-trial motion. JD
Fields’ Post-Trial Motion, 4/4/14, at ¶ 24. As a result, JD Fields has not
waived this issue.
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was a sum certain. JD Fields’ Brief at 41. The restatement provides as
follows.
§ 354 Interest as Damages
(1) If the breach consists of a failure to pay a
definite sum in money or to render a performance
with fixed or ascertainable monetary value, interest
is recoverable from the time for performance on the
amount due less all deductions to which the party in
breach is entitled.
…
Restatement (Second) of Contracts § 354(1) (1981). Furthermore, our
Supreme Court has explained the issue of prejudgment interest in the
following terms.
In adopting Section 354 [of the Restatement
(Second)], we stated:
For over a century it has been the law of this
Commonwealth that the right to interest upon
money owing upon contract is a legal right.
That right to interest begins at the time
payment is withheld after it has been the duty
of the debtor to make such payment.
Fernandez[v. Levin, 548 A.2d 1191, 1193 (Pa.
1988)].
With regard to prejudgment interest, we have
explained, “[i]nterest has been defined ‘to be a
compensation allowed to the creditor for delay of
payment by the debtor,’ and is said to be impliedly
due ‘whenever a liquidated sum of money is unjustly
withheld.’” School Dist. of City of Carbondale v.
Fidelity & Deposit Co. of Maryland, 346 Pa. 491,
492, 31 A.2d 279, 280 (1943) (citations omitted).
However, “as prerequisites to running of
prejudgment interest, the debt must have been
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liquidated with some degree of certainty and the
duty to pay it must have become fixed.” Id. at 493,
31 A.2d at 280; Restatement (Second) of Contracts
§ 354(1) (“If the breach consists of a failure to pay a
definite sum of money or to render a performance
with fixed or ascertainable monetary value, interest
is recoverable.”). Thus, even where the terms of a
contract do not expressly provide for the payment of
interest, a nonbreaching party has a legal right to
recover interest, as damages, on a definite sum
owed under the contract.
Furthermore, as is the case with an award of
contractual interest, an award of prejudgment
interest under Section 354(1) is not subject to a
court’s discretion. See id.; Dox Planks[of Ne. Pa.
v. Ohio Farmers Ins. Co., 621 A.2d 132, 136 (Pa.
Super. 1993)] (citing Fernandez, and holding a
successful plaintiff in a contract case is entitled to
prejudgment interest at the statutory rate as a
matter of right); Peterson v. Crown Fin. Corp.,
661 F.2d 287, 293 (3rd Cir. 1981) (applying
Pennsylvania law and holding that a “court is thus
obligated to award ‘simple interest at the statutory
legal rate’ only in those circumstances in which the
plaintiff proves that the defendant breached a
promise to pay ‘a definite sum of money’”).
TruServ Corp. v. Morgan’s Tool & Supply Co., Inc., 39 A.3d 253, 263-
264 (Pa. 2012) (emphasis in original; footnotes omitted).
Independent counters that JD Fields’ reading of Section 354 is flawed
and offers the following illustration from the comment to Section 354.
9. A contracts to build a bungalow for B for $30,000.
After completion but before B has paid the final
$6,000, B occupies the bungalow but refuses to pay
the balance because the workmanship and materials
are unsatisfactory. A sues B and recovers only
$4,000 on the ground that B’s claim entitles him to
compensation in the amount of $2,000. The sum of
$4,000 was not sufficiently definite to give A a right
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to interest on it. The allowance of interest is within
the discretion of the court. The fact that A was
himself in breach will be considered.
Independent’s Brief at 15, quoting Restatement (Second) of Contracts
§ 354, cmt.
In our view, this illustration is much like the instant case. Here, JD
Fields agreed to provide sheet piling to Independent for $104,547.51. After
receiving said sheet metal, Independent refused to pay the invoice because
it viewed the sheet metal as unsatisfactory. JD Fields filed a counterclaim
against Independent seeking the amount due under the original contract. JD
Fields was awarded 50% of their original contract or $52,273.76. Following
the Restatement, we agree with Independent that this amount “was not
sufficiently definite to give [JD Fields] a right to interest on it.” Restatement
(Second) of Contracts § 354, cmt. As a result, JD Fields did not have a legal
right to prejudgment interests under Section 354(1), as there was not a sum
certain in this case. See id.; TruServ Corp., supra at 264 n.12. Based on
these considerations, we conclude JD Fields is not entitled to relief on its
fourth or fifth issues.
Based on the foregoing, we conclude all of JD Fields’ issues on appeal
are devoid of merit. Accordingly, the trial court’s August 4, 2014 judgment
entered in favor of Independent is affirmed.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/26/2015
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