Brandt, J. v. Master Force Construction

J-A03036-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
JOHN P. BRANDT, O.D. AND KAREN : IN THE SUPERIOR COURT OF
BRANDT : PENNSYLVANIA
:
:
v. :
:
:
MASTER FORCE CONSTRUCTION :
CORP. (D/B/A/ WE DO METAL : No. 1081 MDA 2019
ROOFS.COM), FOX HOME :
IMPROVEMENT NETWORK, CORP., :
ROBERT DEHARDER AND KEITH :
WILTON :
:
:
APPEAL OF: KEITH WILTON :
Appeal from the Judgment Entered June 24, 2019
In the Court of Common Pleas of Clinton County Civil Division at No(s):
2014-659
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED APRIL 21, 2020
Appellant, Keith Wilton (“Wilton”), appeals from the June 24, 2019
Judgment entered in favor of Appellees, John P. Brandt, O.D., and Karen
Brandt, following a non-jury trial. Wilton challenges, inter alia, the trial court’s
finding that it violated the Home Improvement Consumer Protection Act
(“HICPA”), 73 P.S. §§ 517.1 et seq., and the Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”), 73 P.S. §§ 201-1 et seq. After careful
review, we affirm.
J-A03036-20
Background
The relevant facts and procedural history, as gleaned from the certified
record, are as follows.
On June 20, 2012, Appellees entered into a home improvement contract
with co-defendant, Master Force Construction Corp. (“Master Force”)1 for the
replacement of Appellees’ roof (the “Contract”). The Contract initially
provided for the installation of a metal shingle roof, seamless gutters, gutter
covers, and a solar roof energy blanket. The Contract price was $46,250.2
Master Force subsequently determined that a metal shingle roof was not
appropriate for the slope of Appellees’ roof, and on July 7, 2012, the parties
amended the Contract to reflect installation of a standing seam metal roof
instead of a metal shingle roof. This modification resulted in a reduction of
the contract price. The Contract contained a one-year labor warranty, and a
35-year manufacturer warranty. The Contract did not disclose that Master
Force would subcontract the roof installation to a subcontractor.3
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1 Master Force is a Florida corporation with a registered business address in
Lewisburg, Pennsylvania. Corinne Klose was the President, Secretary, and
sole shareholder of Master Force. Klose had delegated operational control of
Master Force to Defendant Robert DeHarder. Michael Bloom, a Master Force
sales person, executed the Contract on Master Force’s behalf.
2Although the Contract price included the installation of seamless gutters and
gutter covers, Master Force demanded that Appellees pay an additional
$2,000 for them.
3 The contract contains the general language that Master Force “may, at any
time, assign or transfer its rights (partially or in full) and/or duties under this
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The Roof
Master Force hired Wilton, a subcontractor, to install the roof at
Appellees’ property in September 2012. Wilton presented himself to Appellees
as an employee of Master Force and WDMR. On September 18, 2012, a storm
occurred. Wilton had not covered Appellees’ roof during the installation of the
new roof, leaving Appellees’ kitchen uncovered and exposed to the elements.
Due to the storm, a substantial leak occurred into Appellees’ kitchen.
Appellees paid an unrelated repairperson, Willard Letterman, $481 to repair
the damage caused by the leak. Wilton completed the roofing project in
September 2012.
Subsequently, on January 11, 2013, and January 23, 2013, after
completion of the new metal roof by Wilton, additional leaks occurred at
Appellees’ property. After the leaks in 2013, Appellees contacted Robert
DeHarder (“DeHarder”), Master Force’s operations agent to inform him of the
problems with the roof. DeHarder informed Appellees that any leaks were
Wilton’s responsibility to repair, and not Master Force’s responsibility, because
Wilton was the installer.
Appellees arranged for Wilton to appear at Appellees’ property to discuss
the leaks and other issues. Wilton did not, however, appear at Appellees’
property at the arranged date and time. Instead, Wilton informed Appellees
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Contract.” Contract, 6/20/12, at 2 (unpaginated). It also contemplates that
“[a]ny independent subcontractor utilized will adhere to the terms of this
agreement and shall be jointly responsible, with [Master Force], to provide
the minimum 1 year warranty as required by the state.” Id.
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by voicemail that he had appeared at an earlier time, claimed that he had
caulked a leak around the ridge vent area of the roof, and indicated that the
caulking would resolve the leak.
Another roof leak occurred on January 30, 2014. After this leak,
Appellees decided to stop dealing with Master Force or Wilton. Appellees
contacted Scott Holdren of Marcon Roofing (“Marcon”) who, in April 2014
replaced the ridge vent on the roof. According to Marcon, the roof panels
Wilton installed were not recommended for installation on low-slope roofs like
the one on Appellees’ home.4 Marcon also informed Appellees that Wilton had
not properly installed the ridge vent and that the faulty installation had
contributed to the leaks. Appellees paid Marcon $2,782 for the repair work
he performed.5
The Lawsuit
On June 19, 2014, Appellees commenced this action by filing a Praecipe
for Writ of Summons. Relevantly, on March 4, 2016, Appellees filed a Second
Amended Complaint against Wilton, Master Force, DeHarder, WDMR, and a
related DeHarder-controlled entity known as Fox Home Improvement Network
Corp. (“Fox”). In their Second Amended Complaint, Appellees alleged that all
defendants had violated the HICPA and the UTPCPL. Appellees also asserted
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4 Appellee’s roof has a slope of less than three inches per foot.
5 Another roof leak occurred on January 21, 2018, subsequent to the
commencement of this action. Following that leak, Appellees paid C&D
Waterproofing $67,020 to replace the entire roof.
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claims of Breach of Express Warranty and Negligence against all defendants
and claims of Breach of Contract, Breach of Implied Warranty of
Merchantability, and Breach of Implied Warranty of Fitness for a Particular
Purpose against Master Force, WDMR, Fox, and DeHarder.
On April 14, 2016, Wilton filed an Answer with New Matter to Appellees’
Second Amended Complaint. In his New Matter, Wilton asserted that he
performed all of the work at Appellees’ residence pursuant to an agreement
with one or more of the other defendants. New Matter, 4/14/16, at ¶ 118.
He also denied liability for Appellees’ damages, and raised a claim for
contribution or indemnification against his co-defendants. Id. at ¶ 127.
Discovery Sanctions
On February 28, 2017, Appellees filed a Motion for Sanctions against
DeHarder, WDMR, and Fox arising from those defendants’ failure to comply
with Appellees’ discovery requests. On March 20, 2017, Wilton filed a Motion
for Sanctions against the same defendants. Following a hearing, on June 9,
2017, the trial court granted Appellees’ Motion and, as a sanction, entered a
Default Judgment against those defendants.6 The court also granted Wilton’s
Motion for Sanctions, entering judgment in his favor against DeHarder, WDMR,
and Fox, and ordering them to indemnify Wilton. On June 26, 2017, the court
ordered the sanctioned defendants to pay Appellees $24,046.16 in attorney’s
fees and costs.
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6 The court ordered that it would determine the share of each defaulting
defendant’s liability at trial.
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Summary Judgment Motions
On July 31, 2017, Wilton filed a Motion for Summary Judgment against
Appellees. That same day, Appellees and Master Force filed Motions for Partial
Summary Judgment against each other.
On September 13, 2017, the trial court denied Wilton’s Motion for
Summary Judgment. It also denied Master Force’s Motion for Partial Summary
Judgment in part, and granted it in part, entering Judgment in Master Force’s
favor on Appellees’ Breach of Implied Warranty of Merchantability claim, and
denied Appellees’ Motion for Partial Summary Judgment.
The Trial
The trial court held a bench trial on the remaining claims against Wilton
and Master Force on October 15, 2018 and October 16, 2018. At trial
Appellees, Wilton, and Master Force each presented the testimony of an expert
witness. Appellees testified on their own behalf and offered the testimony of
Jeff Raymond,7 Corrine Klose, and Scott Holdren.8
Although Wilton had notice of the trial, he did not personally appear.
Therefore, Appellees introduced as evidence Wilton’s September 29, 2016
deposition testimony at trial without objection. Relevantly, Wilton testified
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7 Jeff Raymond is a contractor. In 2018, prior to installation of Appellees’ new
roof by C & D Waterproofing, Raymond’s firm, H.W. Raymond Company,
removed the metal roof from Appellees’ home, and installed the new plywood
roof decking and an ice and water shield at a cost to Appellees of $19,043.05.
8Scott Holdren inspected the ridge vent Master Force installed at Appellees’
home.
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that he had installed “somewhere between 100 and 500” roofs for Master
Force and DeHarder—“approximately 50 to 75 roofs a year”—before working
on Appellees’ roof. Wilton Deposition, 9/29/16, at 30. He testified that before
beginning Appellees’ installation project, he left them a voicemail introducing
himself as “Keith from We Do Metal Roofs.” Id. at 51. He testified that he
was “not supposed to tell people” that Master Force had subcontracted him
and that he was not a Master Force employee because it was “just not good
for business.” Id. at 104. He testified that, although he did not have any
specific independent recollection for this particular project, DeHarder had told
him not to tell customers that he was an independent contractor. Id. at 104-
05, 113-14.
Appellees’ expert, Mark Sobeck, testified that he was a consultant on
Appellees’ 2018 roof replacement by C & D Waterproofing. 9 N.T. 10/15/18,
at 12. Sobeck testified that, due to the slope of Appellees’ roof, which is “well
under three inches per foot,” the standing seam metal roof Appellees’
purchased from Master Force was the wrong roof system for their home.10 Id.
at 13-14. Sobeck also testified that, even if the roof had been appropriate for
Appellees’ roof, Wilton had installed it improperly. Id.
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9 Sobeck charged Appellees $5,000 in consulting fees.
10Sobeck explained that, according to code, a standing seam metal roof is not
permitted on a slope of less than three inches per foot, and that according to
the manufacturer’s manual, it is not permitted on roofs whose slope is less
than four inches per foot. N.T., 10/15/18, at 13-14.
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Jeff Raymond testified that, when he removed the Master Force roof
from Appellees’ home in 2018, he observed “considerable” water damage as
well as “staining, rotting . . . mold, mildew, mushrooms” on the plywood
decking of Appellees’ roof. N.T., 10/15/18, at 145-46. He also testified that
neither Master Force nor Wilton installed a solar roof blanket despite
Appellees’ having paid for one. Id. at 141-42.
Corinne Klose testified that she was the sole owner and shareholder of
Master Force, a home improvement business, as well as its president and
secretary, but she never intended to do any of its physical or operational work.
Id. at 231, 233, 247-48. She testified that she did not have a business plan
or employees, and did not hire any subcontractors. Id. at 232-33. She
testified that, in July 2009, Klose appointed DeHarder as Master Force’s
registered agent, and she expected him to, and he did, in fact, handle
“everything.” Id. at 232-33, 249. DeHarder controlled all of Master Force’s
operational work and finances, but Klose testified that she was always in
contact with him and had authorized everything he did on Master Force’s
behalf. Id. at 239-48
The Verdict
On February 15, 2019, the court entered a verdict in favor of Appellees
against Wilton and Master Force. Relevantly, the court concluded that Wilton,
Master Force, WDMR, Fox, and DeHarder had “acted in concert and conspired
to deceive and defraud Appellees by intentional actions and inactions which
included the purposeful manipulation of the many [d]efendants to obscure
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who was the actual party to the contract, the actual party doing the work[,]
and the actual party responsible for any warranty.” Trial Ct. Op., 2/15/19, at
¶ 31.
In particular, with respect to Appellees’ HICPA claim, the court
concluded that: (1) Wilton, Master Force, WDMR, and Fox were “contractors”
as defined by HICPA; (2) WDMR, Fox, and DeHarder failed to register as
contractors as HICPA requires; (3) Wilton, as instructed by DeHarder
purposefully concealed his role as a subcontractor and allowed Appellees to
believe Master Force employed him; (4) Master Force accepted work that it
had no intention of performing and intended to subcontract to Wilton; (5) the
contract between the parties included the placement of gutters and gutter
covers, but DeHarder charged Appellees an additional $2,000 to install them;
and (6) Master Force abandoned its duty under the contract warranty by not
acting when Appellees contacted DeHarder about leaks who then instructed
them to contact Wilton.
Relying on 73 P.S. § 517.10, the trial court concluded that Master
Force’s and Wilton’s HICPA violations necessarily resulted in a violation of the
UTPCPL.11 Moreover, the court noted that it found Appellees’ expert Sobeck
credible and found that the roof sold by Master Force and installed by Wilton
was inappropriate, violated manufacturer’s recommendations, violated the
requirements of the building code in effect, and resulted in damages to
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11 Section 517.10 provides that “[a] violation of any of the provisions of
[HICPA] shall be deemed a violation of the [UTPCPL].” 73 P.S. § 517.10.
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Appellees. Therefore, the court concluded that Master Force’s sale and
construction of the roof violated the UTPCPL by “making improvements inferior
to the standard agreed to in writing, and representing goods or services that
had characteristics or benefits which the goods or services did not have.” Trial
Ct. Op. at 11 (citing 73 P.S. §201-2(4)). The court also concluded that Master
Force failed to comply with the contract warranty and engaged in deceptive
conduct that caused confusion or misunderstanding, and that Wilton
performed inferior work and withheld from Appellees his role as a
subcontractor. Id. at 11-12.
The trial court also entered a verdict in favor of Appellees on their Breach
of Contract, Breach of Express Warranty, Breach of Implied Warrant of Fitness,
and Negligence claims and denied each of the defendants’ outstanding cross-
claims.
Damages
The court calculated that Appellees suffered actual damages of
$74,216.05,12 which it trebled as authorized by both the HICPA and the
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12 The court itemized Appellees’ actual damages as follows:
A. 2012 Installation Leak Repairs (Willard Letterman) Four
Hundred Eighty-one and 00/100 ($481.00) Dollars;
B. Gutters (Double Payment) - Two Thousand and 00/100
(2,000.00) Dollars;
C. Ridge Vent Replacement (Marcon) - Two Thousand Seven
Hundred Eighty-two and 00/100 ($2,782.00) Dollars;
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UTPCPL.13 The court also awarded Appellees attorney’s fees and costs of
$195,159.20. On June 24, 2019, the court entered judgment on its verdict
after denying post-trial motions.
Appeal
This timely appeal followed.14 Wilton complied with the trial court’s
Order to file a Pa.R.A.P. 1925(b) Statement.
Issues
Wilton raises the following issues on appeal:
1. Where the trial court accepted as credible the opinions of
[Appellees’] expert witness who expressed his opinion that
[Appellees] sustained no damage due to negligence of Wilton
other than the $481.00 cost to repair damage caused by water
infiltration during construction, should [the] verdict against
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D. Roof Consultant- Assess Repair/Replacement needs and Design
Replacement Roof (Sobeck Consulting) – Five Thousand and
00/100 ($5,000.00) Dollars;
E. Roof Demolition and Replacement Sheathing (H.W.Raymond)
– Nineteen Thousand Four Hundred Eighty-three and 05/100
($19,483.05) Dollars;
F. Replacement Roof (C&D) - Forty-two Thousand Four Hundred
Fifty and 00/100 ($42,450.00) Dollars [];
G. Replacement Wood Blocking required due to wear and damage
(C&D) – Two Thousand Twenty and 00/100 ($2,020.00)
Dollars.
Trial Ct. Op. at 13-14.
13 The court, therefore, awarded Appellees’ $222,648.15 in damages.
14Master Force filed an appeal from the June 24, 2019 entry of Judgment at
No. 1080 MDA 2019.
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Wilton be limited to $481.00 for which the negligence of Wilton
was a factual cause?
2. Where [the] evidence was not sufficient to prove that Wilton
was a “contractor” as defined by HICPA, and where any alleged
Wilton violation of HICPA did not cause any damages, should
[a] verdict have been entered for Wilton on the UTCPL claim?
3. Should [a] verdict be entered in favor of Wilton on counts of
the Second Amended Complaint in which Wilton was not a
named defendant?
4. Should [a] verdict be entered for Wilton on damage claims
[that] were not proven by competent evidence to have been
legally caused by Wilton?
5. Should the request for an award of attorneys’ fees, treble
damages[,] and expenses against Wilton as a penalty for
negligence [that] caused damages of $481.00 for which Wilton
repeatedly offered to compensate [Appellees] be denied?
6. Where the cause of the need to replace the roof was the sale
by Master Force to [Appellees] of a type of roof system [that]
could not function acceptably on [Appellees’] home, and where
only one of the eleven averments upon which the UTPCPL claim
is based pertains to Wilton, should [a] verdict be entered in
favor of Wilton on his claim for indemnification from Master
Force?
Wilton’s Brief at 7-10.
Standard of Review
This appeal arises from a verdict following a non-jury trial. We review
an order following a bench trial with the following principles in mind:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are supported
by competent evidence and whether the trial court committed
error in any application of law. The findings of the trial judge in a
non-jury case must be given the same weight and effect on appeal
as the verdict of a jury, and the findings will not be disturbed on
appeal unless predicated upon errors of law or unsupported by
competent evidence in the record. Furthermore, our standard of
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review demands that we consider the evidence in a light most
favorable to the verdict winner.
Levitt v. Patrick, 976 A.2d 581, 588-89 (Pa. Super. 2009) (citation and
quotation omitted).
With respect to the weight the trial court gives to the evidence, we note
as follows:
[a]ppellate review of a weight claim is a review of the [trial
court’s] exercise of discretion, not of the underlying question of
whether the verdict is against the weight of the evidence. Because
the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination that the verdict
is against the weight of the evidence. One of the least assailable
reasons for granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against the weight of
the evidence and that a new trial should be granted in the interest
of justice.
Gold v. Rosen, 135 A.3d 1039, 1041-1042 (Pa.Super. 2016) (citation
omitted). Further, the court “is free to believe all, part, or none of the
evidence and to determine the credibility of the witnesses.” Haan v. Wells,
103 A.3d 60, 70 (Pa. Super. 2014) (citation omitted).
Issue 1
In his first issue, Wilton claims that the trial court erred in awarding
Appellees’ damages against him in excess of $481—the cost of the repairs
related to water infiltration from the storm that occurred while Wilton was
installing Appellees’ roof. Wilton’s Brief at 20. He argues that Appellees’ other
damages arose from occurrences caused by Master Force, namely Master
Force’s selling Appellees a type of roof system that, owing to its design and
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manufacture, was “incapable of performing acceptably regardless of how well
it was installed by Wilton.” Id. at 20-32. He asserts that because the
evidence demonstrated that Appellees’ harm would have occurred even in the
absence of any negligence on Wilton’s part in installing the roof, Wilton’s
conduct was not a factual cause of Appellees’ damages. Id. at 25-32. Wilton
alleges that Appellees’ expert’s testimony that, among other things, “the roof
was inappropriate, wasn’t going to work regardless of what Mr. Wilton did”
supports his claim. Id. at 25. In arguing this issue, Wilton ignores the trial
court’s conclusion that he acted in concert with the other defendants.
As noted above, the trial court here made an explicit finding that Wilton
and his co-defendants “engaged in actions together to deceive and defraud”
Appellees. Trial Ct. Op., 6/10/19, at 4. The court flatly rejected Wilton’s claim
that he was simply “an installer and therefore only liable for the damage that
resulted in the several leaks into the residence.” Id.at 5. Instead, it
concluded that Wilton “actively participated in the fraudulent conduct in
concert with other [d]efendants in this matter[.]” Id. Thus, the court
concluded that Wilton was liable not only for the $481 damages that he
concedes he caused, but also for the damages caused by his co-defendants.
In light of the trial court’s ultimate determination that Wilton and the
other defendants acted in concert, Wilton’s “factual cause” of only $481 is
irrelevant. Appellant’s first issue, therefore, warrants no relief.
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Issue 2
In his second issue, Wilton challenges the court’s finding that Appellees
proved that Wilton was a “contractor” as defined by HICPA. He also contends
that the court erred in concluding that Wilton violated HICPA because Wilton’s
conduct was not a “factual cause” of Appellees’ damages.15 Wilton’s Brief at
33-38. Wilton also challenges the trial court’s award to Appellees of treble
damages and attorneys’ fees and baldly claims that the court erred in finding
that “Wilton acted in concert and to further a conspiracy to deceive and
defraud, as no conspiracy claim was pled or proven.” Id. at 38.
Wilton has failed to develop these arguments with citation to any
relevant authority, in contravention of Pa.R.A.P. 2119(a) (requiring that the
argument section of an appellate brief include discussion and citation of
pertinent authority). Accordingly, we find this issue waived. See, e.g., In re
Estate of Whitley, 50 A.3d 203, 209-10 (Pa. Super. 2012) (explaining that
the failure to cite relevant legal authority constitutes waiver of the claim on
appeal).
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15 The HICPA defines a “contractor” as “[a]ny person who owns and operates
a home improvement business or who undertakes, offers to undertake[,] or
agrees to perform any home improvement . . . includ[ing] a subcontractor or
independent contractor who has contracted with a home improvement
retailer[.]” 73 P.S. § 517.2. The statute excludes from the definition of
“contractor” “[a] person for whom the total cash value of all of that person’s
home improvements is less than $5,000 during the previous taxable year.”
Id.
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Issue 3
In his third issue, Wilton claims that the trial court erred in entering a
verdict against him on Appellees’ Breach of Contract and Breach of Implied
Warranty of Fitness for a Particular Purpose claims because Appellees asserted
those claims only against the other named defendants.16 Wilton’s Brief at 38-
45. This issue merits no relief.
The trial court noted it its February 15, 2019 Order and Opinion, and
corresponding docket entry that it entered a verdict “in [favor] of [Appellees]
and against all defendants” on both Appellees’ statutory and common law
claims. Docket Entry, 2/15/19. The trial court’s Opinion then indicates that
it calculated Appellees’ monetary damages exclusively within the statutory
framework of the HICPA and the UTPCPL. The trial court did not assess any
monetary damages against any defendant—including Wilton—for conduct
specifically relating to Appellees’ common law claims. Accordingly, because
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16 To the extent that Wilton also claims that the trial court erred in entering a
verdict against him on Appellees’ Negligence claim because “the gist of the
action is in contract,” and on their Breach of Express Warranty claim because
Appellees failed to support it with competent evidence, we find these
arguments waived. See, e.g., Graziani v. Randolph, 856 A.2d 1212, 1216
(Pa. Super. 2004) (where appellant’s argument section contained “nine
discrete sections that corresponded in no clear way to the three questions
presented,” the Court addressed only those aspects of the argument that
clearly pertained to each question as stated). Our review of Wilton’s
Statement of Questions Involved indicates that he did not “fairly suggest” his
“gist of the action” or insufficient evidence claims therein. See Pa.R.A.P.
2116(a) (stating, inter alia, “[n]o question will be considered unless it is stated
in the statement of questions involved or is fairly suggested thereby”).
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the judgment in favor of Appellees for damages arose solely from violations
of the HICPA and UTPCPL, Wilton’s claim has no merit.
Issue 4
In his fourth issue, Wilton avers that trial court should not have awarded
compensation to Appellees for the $5,000 they paid to Sobeck to design a
replacement roof system because: (1) Wilton’s acts or omissions did not
necessitate that expenditure; and (2) because Appellees did not itemize this
expense in their Second Amended Complaint. Wilton’s Brief at 47. Wilton
also challenges certain of the trial court’s findings of fact pertaining to
Appellees’ repair and replacement expenditures and the court’s imposition on
him of those amounts as damages. Id. at 47-53.
Notably, again Wilton has not challenged the court’s finding of fact that
the defendants acted in concert to defraud Appellees. Thus, to the extent that
the trial court’s verdict against him reflects damages caused by his co-
defendants, Wilton is not entitled to relief. Insofar as Wilton’s various claims
challenge the trial court’s assessment of the amount of damages suffered by
Appellees, we find that Wilton has challenged the weight of the evidence.
When considering challenges to the weight of the evidence, we note
that, “[i]t is well-settled in Pennsylvania that the weight of the evidence and
the credibility of witnesses are issues for the [fact-finder] who is free to believe
some, all, or none of the evidence presented.” Odato v. Fullen, 848 A.2d
964, 966 (Pa. Super. 2004).
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“A [fact-finder] is entitled to believe all, part or none of the evidence
presented. . . . A [fact-finder] can believe any part of a witness’ testimony
that they choose, and may disregard any portion of the testimony that they
disbelieve.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (citation and
quotation omitted).
Where a fact-finder has made credibility determinations regarding the
testimony and evidence presented, those determinations are rarely
overturned. Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa. Super. 1999).
Further, in order to prevail on a challenge to the weight of the evidence, the
verdict must be so “contrary to the evidence as to shock one’s sense of
justice[.]” Lanning v. West, 803 A.2d 753, 765 (Pa. Super. 2002) (quotation
and citation omitted)
Instantly, the trial court noted that it “accept[ed] as credible the findings
and opinions of [Appellees’] Expert Sobeck and reject[ed] the findings and
opinions of Defendant Master Force’s Expert Green and Defendant Wilton’s
Expert Queen.” Trial Ct. Op., 2/15/19, at ¶ 29. Wilton essentially asks us to
reweigh the evidence and the trial court’s credibility determinations. This we
cannot and will not do. Moreover, this Court’s sense of justice is not shocked
by verdict against Wilton. Accordingly, Wilton is not entitled to relief on this
claim.
Issue 5
In his fifth issue, Wilton avers that the trial court erred in entering a
verdict against him that included attorneys’ fees and treble damages because
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his actions or inactions were the factual cause of only $481 in damages and
because Appellees failed to prove that he was a “contractor” as defined by
HICPA. Wilton’s Brief at 56-57. Wilton also claims that the award of
$222,648.15 in damages and $195,159.20 in attorneys’ fees resulted in a
windfall to Appellees. Id. at 58-60. Last, Wilton argues that the court abused
its discretion in “punish[ing]” him for the conduct of the other parties. Id. at
61-62.
Wilton premises the first part of this averment on his erroneous
assertion that the record only supported an award against him of $481. As
noted above, the trial court disagreed and concluded that Wilton, having acted
in concert with the other defendants, was liable for the full value of Appellees’
damages. Therefore, this claim of error fails.
Treble Damages
In reviewing Wilton’s claim that the trial court erred in awarding treble
damages and in calculating the amount of attorney’s fees to which Appellees
are entitled, we are guided by the following precepts.
Under the UTPCPL, “[t]he court may, in its discretion, award up to three
times the actual damages sustained, but not less than one hundred dollars
($100), and may provide such additional relief as it deems necessary or
proper. The court may award to the plaintiff, in addition to other relief
provided in this section, costs and reasonable attorney fees.” 73 Pa.C.S.A. §
201-9.2(a).
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In Schwartz v. Rockey, 932 A.2d 885, 898 (Pa. 2007), the Court
concluded that “as a matter of statutory construction, [] the court’s discretion
to treble damages under the UTPCPL should not be closely constrained by the
common-law requirements associated with the award of punitive damages.”
Id. at 898. “[C]ourts of original jurisdiction should focus on the presence of
intentional or reckless, wrongful conduct, as to which an award of treble
damages would be consistent with, and in furtherance of, the remedial
purposes of the UTPCPL.” Id. “We examine such claims for an abuse of
discretion.” Krishnan v. Cutler Group, Inc., 171 A.3d 856, 871 (Pa. Super.
2017).
The trial court explained its decision to award treble damages as follows:
Defendants in this case have demonstrated a disregard of
requirements of [the] Consumer Protection Statutes and have
intentionally conspired to deceive [Appellees]. Defendant Master
Force and Defendant Wilton’s allegation that Defendant Master
Force and Defendant Wilton did not act with Defendant
De[H]arder, Defendant We Do Metal Roofs[,] and Defendant Fox
Home Improvement is rejected by this [c]ourt as the facts indicate
that all Defendants acted in concert. Defendant Master Force,
Defendant We Do Metal Roofs[,] and Defendant Fox Home
Improvement were certainly involved at the initial contact with
[Appellees] to the extent that [Appellees] really did not know with
[whom Appellees] had contracted. Defendant De[H]arder was
involved in operating Defendant Master Force, Defendant We Do
Metal Roofs[,] and Defendant Fox Home Improvement and was an
agent of all three (3).
Defendant Wilton purposefully did not disclose Defendant Wilton’s
part in these matters to [Appellees]. Defendant Wilton actively
participated in a scheme that indicated to [Appellees] that
Defendant Wilton was an employee and not a subcontractor of
Defendant Master Force, Defendant We Do Metal Roofs and/or
Defendant Fox Home Improvement. Defendant Wilton [ ]
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acknowledged that Defendant Wilton was told not to disclose that
Defendant Wilton was a subcontractor, when Defendant Wilton
was a subcontractor. This alone is a violation of the HICPA.
These activities caused confusion as to who [Appellees] were to
contact if any problem occurred which obviously happened and
caused the predictable difficulty sought by Defendants to hamper
[Appellees’] attempt to hold some entity accountable for
Defendants’ failure to perform what was promised and contracted
to [Appellees].
Trial Ct. Op., 2/15/19, at 16-17 (paragraph breaks added).
In light of these findings, which the record supports, the court concluded
that “[w]ith all [of] the deceit, trickery, chicanery[,] and underhandedness
that Defendants utilized in this home improvement project[,] treble damages
are warranted[.]” Id. at 17. Following our review, we conclude that the trial
court properly exercised its discretion in awarding treble damages in
Appellees’ favor.
Attorney’s Fees
With respect to attorney’s fees, under the UTPCPL, “[t]he court may
award to the plaintiff, in addition to other relief provided . . . costs and
reasonable attorney fees.” 73 P.S. § 201-9.2. The trial court has discretion
in awarding attorney’s fees, and an appellate court will not disturb such an
award unless the trial court abuses that discretion. Skurnowicz v. Lucci,
798 A.2d 788, 796 (Pa. Super. 2002) (superseded by statute on other
grounds).
In exercising its discretion, the trial court must consider:
(1) The time and labor required, the novelty and difficulty of the
questions involved and the skill requisite properly to conduct the
case; (2) [t]he customary charges of the members of the bar for
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similar services; (3) [t]he amount involved in the controversy and
the benefits resulting to the client or clients from the services, and
(4) [t]he contingency or certainty of the compensation.
Neal v. Bavarian Motors, Inc., 882 A.2d 1022, 1030-31 (Pa. Super. 2005).
The trial court must link the fee award to the amount of damages the
plaintiff sustained under the UTPCPL, and eliminate from the award of attorney
fees the efforts of counsel to recover on non-UTPCPL theories. Id. at 1031-
32. Accordingly, the court should make an effort to “apportion the time spent
by counsel on the distinct causes of action.” Croft v. P & W Foreign Car
Services, 557 A.2d 18, 20 (Pa. Super. 1989). We have, however, recognized,
that “where the plaintiffs are proceeding on multiple theories of relief,
including under the UTPCPL, it is difficult to parse out the time between the
UTPCPL claim and other causes of action.” Boehm v. Riversource Life Ins.
Co., 117 A.3d 308, 335 (Pa. Super. 2015). See also Krishnan 171 A.3d at
872 (where this Court affirmed the trial court’s decision not to “discount” the
fee award because the time spent by counsel in litigating the case would be
“difficult to divide given the common underlying facts”).
In explaining its decision to award attorney’s fees as permitted under to
the HICPA and the UTPCPL, and the amount of fees awarded, the court noted
that, because Appellees proceeded on multiple theories of relief, it “is
extremely difficult to delineate the time spent between the claims that
[Appellees were] pursuing[.]” Trial Ct. Op., 6/10/19, at 6. Accordingly, the
court determined that it would “not reduce the attorney’s fees or divide up the
attorney’s fees among the various theories of recovery that [Appellees] had
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set forth and pursued.” Id. With respect to the Wilton’s claim that the award
constituted a “windfall” to Appellees’ counsel, the court noted that Appellees
have already paid all attorney’s fees and costs incurred in the litigation. Id.
at 7. As such, the fees awarded will not go to Appellees’ counsel; rather it will
reimburse Appellees for the money they spent in litigating this action. Thus,
this is not a “windfall” to counsel.
In establishing the amount of the attorney’s fee award, the court
considered the factors set forth in Neal, supra at 1030-31. The court noted
that it was “satisfied from the testimony and exhibits received and reviewed
that the time and labor invested by [Appellees’] counsel was required, given
the novelty and difficulty of the questions involved, along with the skill
required to properly bring this matter to resolution.” Trial Ct. Op., at 8. The
court found that Appellees’ counsel’s charges were appropriate and
customary. Id. The court found that the fees awarded were proportional to
the amount in controversy and the benefit Appellees received due to counsel’s
efforts. Id. Last, the court noted that counsel did not represent Appellees on
a contingency basis and awarded only the fees and expenses for which counsel
had prepared invoices, and which Appellees had paid. Id. In light of the
foregoing, we conclude that the trial court properly exercised its discretion in
awarding Appellees attorney’s fees.
Issue 6
In his last issue, Wilton claims that the trial court erred in denying his
claim for indemnification or contribution from Master Force for all damages
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except the $481 attributable to the water infiltration during construction.
Wilton’s Brief at 63-64. Wilton argues that Master Force breached its duty to
him, implied in his oral subcontract with Master Force, to provide a roof system
that was suitable for installation at Appellees’ residence. Id. at 64.
Alternatively, Wilton argues that the court erred because only one of
Appellees’ eleven allegations of defendant misconduct under the HICPA and
the UTPCPL in the Second Amended Complaint arose from Wilton’s negligent
conduct. Id. at 65.
With respect to Wilton’s first assertion, this Court’s review of the record
indicates that Wilton failed to introduce any evidence at trial regarding the
alleged indemnification terms and conditions of the oral subcontract between
him and Master Force. Thus, the trial court did not err in denying Wilton’s
claim for indemnification or contribution. Appellant is, therefore, not entitled
to relief on this claim.
Wilton’s alternate argument likewise fails. Here, Wilton has again
neglected to challenge, let alone acknowledge, the trial court’s finding that he
acted in concert with his co-defendants, which resulted in the assessment
against Wilton of the total amount of Appellees’ damages. Because Wilton has
not challenged that finding, let alone proved the court erred, he is not entitled
to relief.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/21/2020
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