Prieto Corp. v. Gambone Construction Co.

J.S04035/14
2014 PA Super 196PRIETO CORPORATION, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
GAMBONE CONSTRUCTION CO., :
:
Appellant : No. 1538 EDA 2013
Appeal from the Judgment Dated May 8, 2013
In the Court of Common Pleas of Montgomery County
Civil Division No(s).: 2009-22021
BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED SEPTEMBER 10, 2014
Appellant, Gambone Construction Co., appeals from the judgment
entered in the Montgomery County Court of Common Pleas in favor of
Appellee, Prieto Corporation. Appellant claims the trial court improperly
construed the Contractor and Subcontractor Payment Act1
challenges the sufficiency of evidence for an oral contract between the
pa
property, each of which falls within the scope of CASPA, and the evidence
was sufficient to establish an oral contract between the parties. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
73 P.S. §§ 501-516.
J. S04035/14
We state the facts as set forth by the trial court:
[Appellee] is in the business of constructing concrete
curbs and Belgian block curbs. [Appellant] is a general
contractor in the business of developing residential and
commercial properties. [Appellee] worked as a
subcontractor for [Appellant] from 1999 through 2007 on
198 jobs and was paid $1,917,260.79 by [Appellant].
The custom and practice of contract formation and
performance between [Appellant] and [Appellee] from
1999 to 2007 is as follows. [Appellant] would customarily
initiate contact with [Appellee] and request a bid for
[Appellee] to construct curbs for its construction projects.
[Appellee] would customarily then fax a proposal to
send a purchase order to [Appellee], and [Appellee] would
order. [Appellee] began the work after authorization by
[Appellant]. [Appellee] would then send an invoice to
[Appellant] after the work was completed. [Appellant]
would pay the invoice usually [within sixty to ninety days].
[Appellee] initiated suit against [Appellant] due to non-
payment of four outstanding invoices relating to . . . four
projects.
Trial Ct. Op., 7/29/13, at 1 (citations and some capitalization omitted).2
2
The certified record did not include the trial transcript. We have held that
failure to include the trial transcript in the certified record typically precludes
appellate review. Floyd v. Phila. Elec. Co., 429 Pa. Super. 460, 463, 632
A.2d 1314, 1315 (1993). More recently, however, our Supreme Court held
could consider that document if it was in the Reproduced Record, even
Pa.R.A.P. 1921 note (citing Commonwealth v. Brown, 617 Pa. 107, 117
n.4, 52 A.3d 1139, 1145 n.4 (2012)). In this case, because a copy of the
trial transcript is part of the reproduced record and neither party has
their merits. See
id.-2-
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respect to the four projects. See id. at 2-5. For each project, Appellee
faxed a job proposal to Appellant and Appellant responded with a written
purchase order. See id. Appellee subsequently performed the work
described in the purchase order and sent Appellant a written invoice. See
id. Appellant did not pay Appellee in full for the work performed. See id.
Appellee, as noted above, constructed curbs. The process involved
-71a. Appellee
Id. at 271a-72a.
Sometimes, instead of pouring concrete, Appellee constructed curbs using
3
Appellee sued Appellant, raising claims of breach of contract, unjust
enrichment, and violation of CASPA.4 A bench trial ensued, and the court
rendered a verdict in favor of Appellee on February 19, 2013. Both parties
filed post-trial motions, with Appellant moving for judgment notwithstanding
the verdict only. The court denied the post-trial motions and entered
3
4
A private right of action exists under CASPA.
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judgment on May 8, 2013.5 Appellant filed a timely notice of appeal and
court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues:
Did the trial court commit error by improperly extending
the clear provisions of [CASPA] to include the work
provided by [Appellee], which, according to the testimony
of its princi
of a build or structure. (2) The erection, alteration,
demolition, excavation, clearing, grading or filling o[f] real
property. (3) Landscaping, including the planting of trees
and shrubbery, and construction driveways and private
Did the trial court commit error in finding that [CASPA]
was insufficient to establish a valid contract between the
parties as required under 73 P.S.C.A. [sic] §502?
Did the trial court commit error in finding that there was
an oral contract between [Appellee] and [Appellant]
because the testimony proffered by [Appellee] did not
reference a single specific conversation with any person or
representative at [Appellant], did not provide specific
terms and conditions of contract or agreement and did not
provide sufficient specificity so as to form an enforceable
oral contract[,] which is subject to a heightened standard?
-8.
For its first issue, Appellant argues the trial court misconstrued CASPA
to encompass the work at issue. Specifically, Appellant maintains the
oadways on real
5
The order was signed and served on the parties on April 30, 2013, but was
not docketed until May 8, 2013.
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apply. Id. at 7 (quoting 73 P.S. § 502). We hold Appellant is due no relief.
-jury verdict, the appellate court must determine
whether the findings of the trial court are supported by the evidence or
Refuse Mgmt. Sys., Inc. v. Consol. Recycling & Transfer Sys., Inc.,
448 Pa. Super. 402, 412, 671 A.2d 1140, 1145 (1996) (internal quotation
grant or denial of [judgment notwithstanding the verdict] only when the
Braun v.
Wal-Mart Stores, Inc., 24 A.3d 875, 890 (Pa. Super. 2011) (per curiam)
(citation omitted), appeal granted in part, 616 Pa. 354, 47 A.3d 1174(2012). We can also affirm on any basis. Donnelly v. Bauer, 553 Pa. 596,
611, 720 A.2d 447, 454 (1998).
Our standard of review for statutory interpretation is de novo. Braun,
24 A.3d at 953.
The object of interpretation and construction of all statutes
is to ascertain and effectuate the intention of the General
Assembly. When the words of a statute are clear and free
from all ambiguity, their plain language is generally the
best indication of legislative intent. A reviewing court
should resort to other considerations to determine
legislative intent only when the words of the statute are
not explicit. In ascertaining legislative intent, this Court is
guided by, among other things, the primary purpose of the
statute, and the consequences of a particular
interpretation.
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Moreover, it is axiomatic that in determining legislative
intent, all sections of a statute must be read together and
in conjunction with each other, and construed with
reference to the entire statute.
Id.definition, statutes are presumed to employ words in their popular and plain
everyday sens
Nippes v. Lucas, 815 A.2d 648, 650 (Pa. Super. 2003) (citations omitted).
By way of background,
CASPA [is] a comprehensive statute enacted in 1994 to
cure abuses within the building industry involving
payments due from owners to contractors, contractors to
subcontractors, and subcontractors to other
subcontractors. The underlying purpose of CASPA is to
protect contractors and subcontractors and to encourage
fair dealing among parties to a construction contract. The
statute provides rules and deadlines to ensure prompt
payments, to discourage unreasonable withholding of
payments, and to address the matter of progress
payments and retainages. Under circumstances prescribed
in the statute, interest, penalty, attorney fees and
litigation expenses may be imposed on an owner,
contractor or subcontractor who fails to make payment to
a contractor or subcontractor in compliance with the
statute.
Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497, 500-01 (Pa.
Super. 2009) (alterations, citation, and punctuation omitted).
515. The following
statutory definitions also apply:
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J. S04035/14
Real estate that is improved, including
lands, leaseholds, tenements and hereditaments, and
improvements placed thereon.
To design, effect, alter, provide professional
or skilled services, repair or demolish any improvement
upon, connected with, or on or beneath the surface of any
real property, to excavate, clear, grade, fill or landscape
any real property, to construct driveways and private
roadways, to furnish materials, including trees and
shrubbery for any of these purposes, or to perform any
labor upon improvements.
(1) All or any part of a building or structure.
(2) The erection, alteration, demolition, excavation,
clearing, grading or filling of real property.
(3) Landscaping, including the planting of trees and
shrubbery, and constructing driveways and private
roadways on real property.
uction, production, or piece of work
In Hubbard v. Com., Dept. of Transp., 660 A.2d 201 (Pa. Commw.
1995),6 the Commonwealth Court define
6
NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012) (citation omitted).
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Commonwealth was responsible for injuries incurred when the victim fell on
Id. at 202.
Because . . . a curb . . . was [not] defined by the
General Assembly when it did so, we must resort to the
rules of statutory construction to determine [its]
meaning[ ]. In this regard, words and phrases are to be
construed according to their common and approved usage.
1 Pa.C.S. § 1903(a). Furthermore, if a word has acquired
a peculiar and appropriate meaning, then it shall be
interpreted in accordance with that meaning. Id.
A curb, as that term is commonly used, is a raised
edging serving as a border between that portion of the
right-of-way for which a public body has assumed
maintenance responsibilities and that portion still retained
by the abutting property owner. Public bodies normally
assume responsibility for property within the curb lines,
i.e., the gutters and the roadway or cartway. On the other
hand, the abutting property owner retains responsibility for
the conditions outside the curb lines, i.e., the sidewalk, the
tree planting strip, and the curb itself. Absent some deed
or dedication requirement, by definition, for there to be a
curb, there must be an abutting property owner with
maintenance responsibilities.
PennDOT also defines curbs in a similar manner in its
regulations. 67 Pa. Code § 211.1 defines a curb as a
define a curb l
Code § 211.1.
Id. at 204 (some citations and footnote omitted).
Instantly, we examine the plain language of CASPA. See Braun, 24
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alteration of real property.7 Id.
see Nippes, 815 A.2d at
responsibility of the abutting property owner. See Hubbard, 660 A.2d at
204; see also Nippes
structure a raised edging and an alteration of real property. See 73 P.S.
§ 502; Hubbard
within the scope of Section 502. See 73 P.S. § 502. It follows that to
real estate. See id. We hold that the trial court did not err by applying
CASPA to an oral contract to perform work e.g. on
real property. See id.
issues.
Appellant insists that the trial court erred by finding Appellee established the
and documents did not sufficiently establish the contract terms. Appellant
suggests th
for work done pursuant to the purchase orders did not establish valid and
enforceable contracts. Appellant, we conclude, has not established
entitlement to relief.
7
We acknowledge the circular nature of the definitions.
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A [judgment notwithstanding the verdict] can be entered
upon two bases: (1) where the movant is entitled to
judgment as a matter of law; and/or, (2) the evidence was
such that no two reasonable minds could disagree that the
verdict should have been rendered for the movant. When
reviewing a trial court's denial of a motion for [judgment
notwithstanding the verdict], we must consider all of the
evidence admitted to decide if there was sufficient
competent evidence to sustain the verdict. In so doing, we
must also view this evidence in the light most favorable to
the verdict winner, giving the victorious party the benefit
of every reasonable inference arising from the evidence
and rejecting all unfavorable testimony and inference.
Concerning any questions of law, our scope of review is
plenary. Concerning questions of credibility and weight
accorded the evidence at trial, we will not substitute our
judgment for that of the finder of fact. If any basis exists
upon which the [court] could have properly made its
award, then we must affirm the trial court's denial of the
motion for [judgment notwithstanding the verdict]. A
[judgment notwithstanding the verdict] should be entered
only in a clear case.
Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)
(citation omitted) (setting forth standard of review for bench trial).
[T]he question of whether an undisputed set of facts
establishes a contract is a matter of law. It is also well
settled that in order for an enforceable agreement to exist,
parties mutually assent to the same thing, as evidenced by
an offer and its acceptance. It is equally well established
that an offer may be accepted by conduct and what the
parties do pursuant to the offer is germane to show
whether the offer is accepted. In cases involving contracts
wholly or partially composed of oral communications, the
precise content of which are not of record, courts must
look to the surrounding circumstances and course of
dealing between the parties in order to ascertain their
conduct to ascertain the presence of a contract.
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Refuse Mgmt., 448 Pa. Super. at 415-16, 671 A.2d at 1146 (citations and
internal quotation marks omitted); Boyle v. Steiman, 429 Pa. Super. 1, 16-
17, 631 A.2d 1025, 1033 (1993).
In Boyle, this Court ascertained whether the evidence substantiated
the existence of an oral contract. Boyle, 429 Pa. Super. at 16-17, 631 A.2d
at 1033. In Boyle, the plaintiff a private investigator sued the
defendant a personal injury attorney for breach of oral contract. Id. at 6,
631 A.2d at 1028. The plaintiff alleged that the defendant failed to pay fees
Id. The defendant, inter
alia, challenged the sufficiency of evidence for an oral contract. Id. at 16-
17, 631 A.2d at 1033.
The Boyle Court disagreed:
Instantly, the evidence presented by the [plaintiff8] was
more than sufficient to meet their burden of proving the
existence of an oral contract between the [plaintiff] and
that the [defendant] would contact the [plaintiff] or the
administrators with personal injury cases and these cases
would be investigated and results of the investigations
would be submitted to the [defendant] together with a bill.
The [defendant] then paid every bill submitted to him.
This course of dealing continued until 1983 when the
[defendant] began to fail to pay some of the bills
submitted to him by the [plaintiff]. Thus, the evidence
presented by the administrators was sufficient to meet
8
Because the plaintiff had passed away prior to trial, the administrators of
plaintiff were substituted for the plaintiff. Boyle, 429 Pa. Super. at 7, 631
A.2d at 1028.
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their burden of establishing the existence of an oral
contract for investigative services between the parties.
Additionally, the evidence established a course of dealings
between the parties that proved that the [plaintiff]
expected to be paid for his investigative services and was
not accepting the investigation assignments on a
contingency basis as alleged by the [defendant]. Finally,
hes the existence
of an oral contract between the parties for investigative
services and that these services were provided by the
[plaintiff] on all of the disputed bills.
Id. at 17, 631 A.2d at 1033-34.
Instantly, after viewing the evidence in the light most favorable to
Appellee as the verdict winner, see Joseph, 89 A.3d at 260, we hold the
record established the existence of the four oral contracts at issue. See
also Donnelly, 553 Pa. at 611, 720 A.2d at 454 (holding appellate court
can affirm on any basis). Appellant, similar to the defendant in Boyle,
would contact Appellee with a purchase order specifying a project, albeit in
See Trial Ct. Op. at 2-5; cf. Refuse
Mgmt., 448 Pa. Super. at 416, 671 A.2d at 1146 (statin
Boyle, 429 Pa. Super. at 17, 631 A.2d at 1033-34.
Appellee, similar to the plaintiff in Boyle, would subsequently perform the
requested service and invoice Appellant. See Trial Ct. Op. at 2-5; cf. Boyle,
429 Pa. Super. at 17, 631 A.2d at 1033-34; cf. also Refuse Mgmt., 448
Pa. Super. at 416, 671 A.2d at 1146. Appellant, in fact, unlike the
defendant in Boyle See Trial Ct.
Op. at 2-5. Further, the instant parties, identical to the Boyle parties, had a
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substantially similar, extensive course of dealing for almost a decade before
nonpayment began. See Trial Ct. Op. at 1; cf. Boyle, 429 Pa. Super. at 17,
631 A.2d at 1034.
Similar to the Boyle Court, which affirmed the existence of an oral
contract based on an analogous evidentiary record, we cannot conclude that
the evidence was such that a verdict for Appellant was clear. See Joseph,
documentation w
some of the instant invoices, thus evidencing acceptance. See Trial Ct. Op.
at 2-5 (citing documents substantiating partial payment by Appellant); see
also Refuse Mgmt., 448 Pa. Super. at 416, 671 A.2d at 1146 (holding
Accordingly, having discerned no abuse of discretion or error of law, we
affirm the judgment below, albeit partially on other grounds. See Braun,
24 A.3d at 890; Refuse Mgmt., 448 Pa. Super. at 412-13, 671 A.2d at
1145; see also Donnelly, 553 Pa. at 611, 720 A.2d at 454.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2014
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