Waldron Electric v. Caseber, D.

J-A24005-17
2017 PA Super 361WALDRON ELECTRIC HEATING AND IN THE SUPERIOR COURT OF
COOLING, INC. PENNSYLVANIA
Appellant
v.
DANIEL P. CASEBER AND MARGARET A.
CASEBER
No. 161 WDA 2017
Appeal from the Judgment Entered January 20, 2017
In the Court of Common Pleas of Washington County
Civil Division at No(s): 2014-790
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
OPINION BY MOULTON, J.: FILED NOVEMBER 14, 2017
Waldron Electric Heating and Cooling, Inc. (“Waldron Electric”) appeals
from the January 20, 2017 judgment entered in its favor in the Washington
County Court of Common Pleas following a bench trial. We affirm in part
and reverse in part, and remand to the trial court for further proceedings.
Waldron Electric filed in Allegheny County a complaint in arbitration
against Daniel P. and Margaret A. Caseber asserting claims of breach of
contract and unjust enrichment. The Casebers filed a consent motion to
transfer the case to Washington County, which the trial court granted.
Following an arbitration award finding in favor of the Casebers, Waldron
Electric appealed to the Washington County Court of Common Pleas. On
March 21, 2016, the trial court conducted a non-jury trial.
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The trial court set forth the following facts:
Thomas Waldron, principal of [Waldron Electric], and a
registered electrician, testified that on Saturday,
September 8, 2012 he received a phone call from Daniel
Caseber, one of the defendants, inquiring about surge and
lightning protection. They briefly discussed [Mr.
Caseber’s] needs and then Waldron suggested a ball park
figure for the work which [Mr. Caseber] rejected. Waldron
suggested that he could make a house call to view the
situation but that the charge for such a visit would be
$65.00. [Mr. Caseber] agreed and Waldron went to the
Caseber residence. After some discussion, the parties
signed a contract which described certain work to be done
by [Waldron Electric] for the total consideration of
$870.00.1 As is required by law, 73 P.S. § 517.8(b), the
contract contained a right of rescission: “an individual-
shall be permitted to rescind a contract without penalties
within three business days of the date of signing”.
Waldron immediately set to work and on that day
completed the job. He was paid and left.
1
Nothing in the record suggests this work was done
on an emergency basis.
On the following Monday, two days later and on the first
business day after the contract was signed and the work
performed, [Waldron Electric] received by certified mail a
notice of cancellation, Waldron called [Mr. Caseber] and
demanded return of the electrical components he had
installed in [Caseber’s] household wiring. [Mr. Caseber]
said he offered the surge protector and lightning arrestor
to Waldron in that phone conversation[,] and that he took
those items to a subsequent hearing at the office of the
Magisterial District Judge, and offered them to Waldron
who refused to accept them. Waldron says that in the
phone conversation he demanded the items, but [Mr.
Caseber] denied him permission to come to the house, and
that there was no offer of any components at the MDJ
office. We accept [Mr. Caseber’s] version of these events.
[Waldron Electric] refunded [Caseber’s] payment.
Trial Ct. Op, 1/6/17, at 1-2 (“Post-Trial Op.”).
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On March 21, 2016, the trial court entered a verdict in favor of
Waldron Electric for $196, which included the $65 charge for the house visit
and $131 for the cost of transferring the action from Allegheny County to
Washington County. On March 31, 2016, Waldron Electric filed a motion for
post-trial relief requesting that the trial court direct verdict in its favor on its
unjust enrichment claim for damages equal to the reasonable value of the
work performed. On January 6, 2017, the trial court denied the motion and
directed the Prothonotary to enter judgment on the March 21, 2016 verdict.
On January 20, 2017, Waldron Electric filed a praecipe for judgment on non-
jury verdict, and judgment was entered. That same day, Waldron Electric
filed a timely notice of appeal.
Waldron Electric raises the following issues on appeal:
1. Whether the Trial Court erred in considering and
referencing the current state of [the Casebers’] electrical
system, and in overruling [Waldron Electric’s] Objection on
the matter in its Memorandum Opinion in violation of its
own Order of Court of March 21st, 2016?
2. Whether the Trial Court erred in its refusal to consider
the reasonable value of the services performed by
[Waldron Electric], despite section 517.7(g) of the Home
Improvement Consumer Protection Act enumerating such a
right, because [Waldron Electric] had followed all material
sections of the Act?
Waldron Electric’s Br. at 9.
Waldron Electric first challenges the admission of evidence regarding
Mr. Caseber’s attempt to return electrical equipment.
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“Questions concerning the admission and exclusion of evidence are
within the sound discretion of the trial court and will not be reversed on
appeal absent an abuse of discretion.” Renninger v. A & R Machine
Shop, 163 A.3d 988, 996 (Pa.Super. 2017) (quoting B & L Asphalt Indus.,
Inc. v. Fusco, 753 A.2d 264, 270 (Pa. Super. 2000)).
In February 2016, Waldron Electric filed a motion to compel inspection.
On February 26, 2016, the trial court granted Waldron Electric’s motion and
ordered that the Casebers permit Waldron Electric to inspect the electrical
system within 10 days of the date of the order. Prior to trial, Waldron
Electric filed a motion for contempt and sanctions based on, among other
things, the Casebers failure to permit Waldron Electric to inspect the wire
system. On March 21, 2016, following argument, the trial court granted the
motion and ordered that the Casebers “may not present evidence of the
current condition of the wiring in their residence.” Order, 3/21/16.
Waldron Electric claims that, following this order, the trial court erred
in allowing Mr. Caseber to testify as to his attempt to return the equipment
installed by Waldron Electric and relying on this testimony in its post-trial
opinion.
At trial, the following exchange occurred:
Q: Did you have a conversation with Mr. Waldron prior to
the [magistrate district judge] hearing that has been
mentioned today?
A: Well, in the office, he came in, and we tried to give him
the surge protector, I had it in a Giant Eagle bag, and also
the lightning arrester were both taken out.
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Q: And what [did] Mr. Waldron say, if anything?
A: He said, “They’re junk. I don’t want them, they’re
junk.”
...
Q: Did Mr. Waldron make any effort after November 9,
2012, about picking up the equipment?
A: No.
Q: What is the status of those two pieces of equipment
presently, do you know?
A: Do you mean the ones I tried to give back to him?
Q: Right.
A: I have no idea. I gave them to you.
Q: Are they in your house?
A: No, sir.
Q: Are they installed in the circuit box?
A: No, sir.
Q: What did you do with the circuit box after you
cancelled the – sent the – I should say three-day notice to
Mr. Waldron?
A: I tried to find an electrician to come in and do it, and
put another surge protector in, because I didn’t want his
stuff in there.
Q: Was the equipment installed by Mr. Waldron removed?
A: Yes
[WALDRON ELECTRIC’ COUNSEL]: Your Honor, I’m going
to object about any reference to the box, since we did not
get to inspect it.
THE COURT: Well, that’s true.
[CASEBER’S COUNSEL]: Well, I believe your Honor said
that there was no discussion of any other work or
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additional thing. I’m just talking about the two pieces of
equipment.
THE COURT: Okay. The objection is overruled.
N.T., 3/21/16, at 55-57.
We conclude that the trial court did not abuse its discretion in allowing
testimony regarding the attempted return of the two pieces of Waldron
Electric’s equipment. This testimony did not describe the house’s wiring
system or the status of the electric box. Rather, it described an attempted
return of Waldron Electric’s equipment, which was required under the notice
of cancellation form.1
Waldron Electric next argues that, contrary to the decision of the trial
court, section 517.7(g) of the Home Improvement Consumer Protection Act
(“HICPA”), 73 P.S. §§ 517.1-517.18, permits a contractor to recover the
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1
The notice of cancellation form states that:
If you cancel, you must make available at your residence
in substantially as good condition as when received, any
goods delivered to you under this contract or sale; or you
may, if you wish, comply with the instructions of the seller
regarding the return shipment of the goods at the seller’s
expense and risk. If you do make the goods available to
the seller and the seller does not pick them up within
twenty days of the date of your notice of cancellation, you
may retain or dispose of the goods without any further
obligation. If you fail to make the goods available to the
seller, or if you agree to return the goods to the seller and
fail to do so, then you remain liable for performance of all
obligations under the contract.
Br. in Opp. to Mot. for Post-Trial Relief, Ex. B. This notice was admitted into
evidence at trial. See N.T, 3/21/16, at 43.
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reasonable value of services performed if the contract complied with section
517.7(a). Waldron Electric maintains that because the parties’ contract
complied with section 517.7(a), the trial court erred in refusing to consider
whether Waldron Electric had established a claim for equitable relief.
When reviewing a trial court’s interpretation of a statute, our standard
of review is de novo, and our scope of review is plenary. Shafer Elec. &
Constr. v. Mantia, 96 A.3d 989, 994 (Pa. 2014). Our Supreme Court has
stated:
“[T]he objective of all interpretation and construction of
statutes is to ascertain and effectuate the intention of the
legislature.” Bayada Nurses v. Dept. of Labor and
Indus., 607 Pa. 527, 8 A.3d 866, 880 (2010) (citing 1
Pa.C.S. § 1921(a)). Generally, the best indication of the
General Assembly’s intent is the plain language of the
statute. “When the words of a statute are clear and free
from all ambiguity, they are presumed to be the best
indication of legislative intent.” Chanceford Aviation v.
Chanceford Twp. Bd. of Supervisors, 592 Pa. 100, 923
A.2d 1099, 1104 (2007) (citations omitted).
Allstate Life Ins. Co. v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012).
Section 517.7 of HICPA provides:
(a) Requirements.--No home improvement contract shall
be valid or enforceable against an owner unless it:
(1) Is in writing and legible and contains the home
improvement contractor registration number of the
performing contractor.
(2) Is signed by all of the following:
(i) The owner, his agent or other contracted
party.
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(ii) The contractor or a salesperson on behalf of
a contractor.
(3) Contains the entire agreement between the
owner and the contractor, including attached copies
of all required notices.
(4) Contains the date of the transaction.
(5) Contains the name, address and telephone
number of the contractor. For the purposes of this
paragraph, a post office box number alone shall not
be considered an address.
(6) Contains the approximate starting date and
completion date.
(7) Includes a description of the work to be
performed, the materials to be used and a set of
specifications that cannot be changed without a
written change order signed by the owner and the
contractor.
(8) Includes the total sales price due under the
contract or includes a time and materials provision
wherein the contractor and owner agree in writing to
the performance of the home improvement by the
contractor and payment for the home improvement
by the owner, based on time and materials. If the
contract includes a time and materials provision:
(i) The contractor shall provide an initial cost
estimate in writing to the owner before any
performance of the home improvement
commences.
(ii) The contract shall state:
(A) The dollar value of the initial cost estimate
for the services to be performed under the time
and materials provision.
(B) That the cost of the services to be
performed under the time and materials
provision may not exceed 10% above the dollar
value indicated in the initial cost estimate.
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(C) The total potential cost of the services to be
performed under the time and materials
provision, including the initial cost estimate and
the 10% referenced in clause (B), expressed in
actual dollars.
(D) A statement that the cost of the services to
be performed under the time and materials
provision shall not be increased over the initial
cost estimate plus a 10% increase without a
written change order signed by the owner and
contractor.
(9) Includes the amount of any down payment plus
any amount advanced for the purchase of special
order materials. The amount of the down payment
and the cost of the special order materials must be
listed separately.
(10) Includes the names, addresses and telephone
numbers of all subcontractors on the project known
at the date of signing the contract. For the purposes
of this paragraph, a post office box number alone
shall not be considered an address.
(11) Except as provided in section 12, agrees to
maintain liability insurance covering personal injury
in an amount not less than $50,000 and insurance
covering property damage caused by the work of a
home improvement contractor in an amount not less
than $50,000 and identifies the current amount of
insurance coverage maintained at the time of signing
the contract.
(12) Includes the toll-free telephone number under
section 3(b).
(13) Includes a notice of the right of rescission under
subsection (b).
(b) Right of rescission.--An individual signing a home
improvement contract, except as provided in the
emergency provisions of section 7 of the act of December
17, 1968 (P.L. 1224, No. 387), known as the Unfair Trade
Practices and Consumer Protection Law, shall be permitted
to rescind the contract without penalty regardless of where
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the contract was signed, within three business days of the
date of signing.
...
(g) Contractor’s recovery right.--Nothing in this section
shall preclude a contractor who has complied with
subsection (a) from the recovery of payment for work
performed based on the reasonable value of services which
were requested by the owner if a court determines that it
would be inequitable to deny such recovery.
73 P.S. § 517.7 (footnotes omitted).
The trial court held that, because there was a valid and enforceable
agreement that complied with section 517.7(a) of HICPA, Waldron Electric
was limited to contract damages and did not have a right to seek recovery
for “the reasonable value of services which were requested by the owner”
pursuant to section 517.7(g). Post-Trial Op. at 3.2 We disagree.
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2
The trial court relied on our decision in Shafer Elec. & Constr. v.
Mantia, which held that a contractor could recover under section 517.7(g)
where the contract failed to meet the requirements of section 517.7(a). 67
A.3d 8, 12-14 (Pa.Super. 2013), aff’d 96 A.3d 989 (Pa. 2014). The trial
court reasoned, based on Shafer, that section 517.7(g) applied only where
no valid contract existed, and in this case the parties had a valid contract.
Post-Trial Op. at 3.
Our Supreme Court affirmed our decision in Shafer Electric, but on
different grounds. It concluded that HICPA is silent as to the availability of
common law remedies where a valid contract does not exist, and held that
where a contract fails to meet the requirements of section 517.7(a), a
contractor may seek recovery under common law equity theories, rather
than under section 517.7(g) of HICPA. Id. at 996-97.
Regardless, the decisions in Shafer are inapposite. Unlike the
contract at issue in Shafer, here the contract complied with section
517.7(a).
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Under the plain language of section 517.7(g), a contractor who
complies with section 517.7(a) is not precluded from asserting a claim for
the reasonable value of services performed. This conclusion is supported by
dicta in Shafer, where the Supreme Court noted that it is “self-evident and
plain that Section 517.7(g) speaks only to the availability of remedies to a
contractor who complies with section 517.7(a).” 96 A.3d at 996.
Here, the parties and the trial court all agree that the parties’ contract
complied with section 517.7(a). Post-Trial Op. at 3. Therefore, under
section 517.7(g), because Waldron Electric “complied with subsection (a),” it
is not precluded “from the recovery of payment for work performed based on
the reasonable value of services which were requested by the owner if a
court determines that it would be inequitable to deny such recovery.” We
recognize that this plain-language reading of section 517.7(g) may provide
contractors an incentive to complete work before the three-day rescission
period ends in order to defeat, as a practical matter, the homeowner’s three-
day right of rescission. The result, however, is compelled by the statutory
language.3
Accordingly, we conclude that the trial court erred in finding that
Waldron Electric was barred from asserting a claim for the reasonable of
value of services under section 517.7(g). We make no determination as to
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3
Moreover, we note that section 517.7(g) permits the trial court to
deny recovery when such recovery would be inequitable.
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whether Waldron Electric has established a right to recover any payment;
that is, we make no determination as to the reasonable value of services or
whether it would be inequitable to deny recovery to Waldron Electric.
Judgment affirmed in part and reversed in part. Case remanded.
Jurisdiction relinquished.
Judge Solano joins the opinion.
Judge Musmanno files a dissenting opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/14/2017
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