J.S04035/14

2014 PA Super 196

PRIETO 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 Pl eas in favor of Appellee, Prieto Corporation. Appellant claims the trial court improperly construed the Contractor and Subcontractor Payment Act 1 (“CASPA”) and challenges the sufficiency of evidence for an oral contract between the

pa rties. We hold that a “curb” is both a structure and a n alteration of real property, each of which falls within the scope of CASPA , and the evidence

was sufficient to establish an oral contract between t he parties. We affirm.

* Former Justice specially assigned to the Superior Court

. 1 73 P.S. §§ 501-516.J. S04035/14

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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 o n 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 customar ily in itiate contact with [Appellee] and request a bid for [Appellee] to construct curbs for its construction projects

. [Appellee] would customarily then fax a proposal to [Appellant’s] office. In response, [Appellant’s] office would send a purchase order to [Appellee], and [Appellee] w ould perform the work as set forth in [Appellant’s] purchase order. [Appellee] began the work after authorizati on by [Appellant]. [Appellee] would then send an invoice t o [Appellant] after the work was completed. [Appellant ] would pay the invoice usually [within sixty to ninet y days]. [Appellee] initiated suit against [Appellant] due to nonpayment of four outstanding invoices relating to . . . four projects. Trial Ct. Op., 7/29/13, at 1 (citations and some capi talization omitted). 2

2 The certified record did not include the trial transcr ipt. We have held that failure to include the trial transcript in the certifi ed 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 “that where the accuracy of a pertinent document is undi sputed, the Court could consider that document if it was in the Reproduced Record, even though it was not in the record that had been transmit ted to the Court.” 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, b ecause a copy of the trial transcript is part of the reproduced record and n either party has disputed its accuracy, we will resolve Appellant’s claims on their merits. See id.J. S04035/14

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The trial court’s opinion also included numerous finding s of fact with respect to the four projects. See id. at 2-5. For each project, Appellee faxed a job proposal to Appellant and Appellant respo nded with a written purchase order. See id. Appellee subsequently performed the work described in the purchase order and sent Appellant a w ritten invoice. See

id. Appellant did not pay Appellee in full for the work performed. See id. Appellee, as noted above, constructed curbs. The process in volved setting up a “string line,” purchasing concrete, putting concrete into a “curb machine,” and building curbs along roadways. R.R. at 2 70a -71a. Appellee did not “grade,” dig, or excavate the development. Id. at 271a-72a. Sometimes, instead of pouring concrete, Appellee construct ed curbs using “Belgian block” forms. 3 Appellee sued Appellant, raising claims of breach of con tract, 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 j udgment notwithstanding the verdict only. The court denied the post-trial mot ions and entered

3 The record did not define numerous terms, including “s tring line” and “curb machine.”

4 A private right of action exists under CASPA.J. S04035/14

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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 extend ing the clear provisions of [CASPA] to include the work provided by [Appellee], which, according to the testim ony of its princi ples [sic], did not constitute an “Improvement” as defined in 73 P.S. § 502 to include “(1) All or any part 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 roadways on real property.”? Did the trial court commit error in finding that [CAS PA] applied to [Appellee’s] claims when the evidence presen ted was insufficient to establish a valid contract between th e parties as required under 73 P.S.C.A. [sic] §502? Did the trial court commit error in finding that ther e 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 speci fic terms and conditions of contract or agreement and did no t provide sufficient specificity so as to form an enforceab le oral contract[,] which is subject to a heightened stand ard? Appellant’s Brief at 7

- 8. For its first issue, Appellant argues the trial court mi sconstrued CASPA to encompass the work at issue. Specifically, Appellant maintains the statutory phrase “constructing driveways and private r oadways on real

5 The order was signed and served on the parties on Apri l 30, 2013, but was not docketed until May 8, 2013.J. S04035/14

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property” excludes the construction of curbs and therefore CASPA does not apply. Id. at 7 (quoting 73 P.S. § 502). We hold Appellant i s due no relief. “In reviewing a non -jury verdict, the appellate court must determine whether the findings of the trial court are supported by the evidence or whether the trial court committed error in any applica tion of the law.” Refuse Mgmt. Sys., Inc. v. Consol. Recycling & Tran sfer Sys., Inc. , 448 Pa. Super. 402, 412, 671 A.2d 1140, 1145 (1996) (internal quotation marks and citation omitted). “An appellate court will reverse a trial court’s grant or denial of [judgment notwithstanding the ve rdict] only when the appellate court finds an abuse of discretion or an error of law.” 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 i s de novo

. Braun , 24 A.3d at 953.

The object of interpretation and construction of all sta tutes is to ascertain and effectuate the intention of the Ge neral Assembly. When the words of a statute are clear and fre e from all ambiguity, their plain language is generall y the best indication of legislative intent. A reviewing cou rt should resort to other considerations to determine legislative intent only when the words of the statute are not explicit. In ascertaining legislative intent, thi s Court is guided by, among other things, the primary purpose o f the statute, and the consequences of a particular interpretation.J. S04035/14

- 6 - Moreover, it is axiomatic that in determining legislat ive 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. (alteration, citations, punctuation, and formatting om itted). “Absent a definition, statutes are presumed to employ words in t heir popular and plain everyday sens e, and popular meanings of such words must prevail.” Nippes v. Lucas , 815 A.2d 648, 650 (Pa. Super. 2003) (citations omit ted). By way of background, CASPA [is] a comprehensive statute enacted in 1994 to cure abuses within the building industry involvin g 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). CASPA applies to a “construction contract,” which is defined as an “agreement, whether written or oral, to perform work on any real property located within this Commonwealth.” 73 P.S. §§ 502, 515. The following statutory definitions also apply:J. S04035/14

- 7 - “Real property.” Real estate that is improved, including lands, leaseholds, tenements and hereditaments, and improvements placed thereon. “Improve.” To design, effect, alter, provide professional or skilled services, repair or demolish any improvement upon, connected with, or on or beneath the surface of a ny real property, to excavate, clear, grade, fill or la ndscape 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. “Improvement.” (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. 73 P.S. § 502 (reordered to facilitate disposition). Black’s Law Dictionary defines a structure as “[a]ny constr uction, production, or piece of work artificially built up or composed of parts purposefull y joined together.” Black’s Law Dictionary 1559 (9th ed. 2009).

In Hubbard v. Com., Dept. of Transp. , 660 A.2d 201 (Pa. Commw. 1995), 6 the Commonwealth Court define d “curb” in determining whether the

6 “Although decisions of the Commonwealth Court are not binding on this Court, we may rely on them if we are persuaded by th eir reasoning.” NASDAQ OMX PHLX, Inc. v. PennMont Secs. , 52 A.3d 296, 308 n.7 (Pa. Super. 2012) (citation omitted).J. S04035/14

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Commonwealth was responsible for injuries incurred when the victim fell on a “defective median strip.” 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 b e construed according to their common and approved usage. 1 Pa.C.S. § 1903(a). Furthermore, if a word has acq uired 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 th e right- of -way for which a public body has assumed maintenance responsibilities and that portion still re tained by the abutting property owner. Public bodies normall y assume responsibility for property within the curb line s, i.e. , the gutters and the roadway or cartway. On the oth er hand, the abutting property owner retains responsibili ty for the conditions outside the curb lines, i.e. , the sidewalk, the tree planting strip, and the curb itself. Absent some d eed 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 “vertical or sloping member generally along and defini ng the edge of a roadway.” Moreover, the regulations al so define a curb l ine as being the “boundary between a roadway and a sidewalk, usually marked by a curb.” 67 Pa. Code § 211.1.

Id. at 204 (some citations and footnote omitted). Instantly, we examine the plain language of CASPA. See Braun , 24 A.3d at 953. “Real property” is defined as including “improved lands.” 73 P.S. § 502. An “improvement” is defined as including a structure or anJ. S04035/14

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alteration of real property. 7 Id. A “structure” includes any “piece of work artificially built up.” Black’s Law Dictionary 1559; see Nippes , 815 A.2d at 648. A “curb” is a raised edging serving as a roadway bo rder that is the responsibility of the abutting property owner. See Hubbard , 660 A.2d at 204; see also Nippes , 815 A.2d at 648. We hold that a “curb” is both a

structure

— a raised edging

— and an alteration of real property. See 73 P.S. § 502; Hubbard , 660 A.2d at 204. Thus, a “curb” is an “improvement” within the scope of Section 502. See 73 P.S. § 502. It follows that to design, effect, and provide skilled services regarding a “curb” is to “improve”

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. , constructing a “curb”— on real property. See id. Finally, we summarize Appellant’s arguments for its last two issues. Appellant insists that the trial court erred by finding Appellee established the existence of the oral contract. Appellant maintains tha t Appellee’s witnesses and documents did not sufficiently establish the contr act terms. Appellant suggests th at the purchase orders it sent to Appellee and Appelle e’s invoices for work done pursuant to the purchase orders did not establish valid and enforceable contracts. Appellant, we conclude, has not e stablished

entitlement to relief.

7 We acknowledge the circular nature of the definitions.J. S04035/14

- 10 - A [judgment notwithstanding the verdict] can be entere d upon two bases: (1) where the movant is entitled to judgment as a matter of law; and/or, (2) the eviden ce was such that no two reasonable minds could disagree that th e verdict should have been rendered for the movant. Wh e n reviewing a trial court's denial of a motion for [jud gment notwithstanding the verdict], we must consider all of t he 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 favorab le to the verdict winner, giving the victorious party the be nefit of every reasonable inference arising from the eviden ce and rejecting all unfavorable testimony and inference

. Concerning any questions of law, our scope of review is plenary. Concerning questions of credibility and weigh t accorded the evidence at trial, we will not substitute our judgment for that of the finder of fact. If any basi s exists upon which the [court] could have properly made its award, then we must affirm the trial court's denial o f the motion for [judgment notwithstanding the verdict]. A [judgment notwithstanding the verdict] should be ente red 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 wel l settled that in order for an enforceable agreement to exist, there must be a “meeting of the minds,” whereby both parties mutually assent to the same thing, as evidenced by an offer and its acceptance. It is equally well establi shed 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 con tracts wholly or partially composed of oral communications, t he 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 the ir intent. We must, therefore, look to the parties’ cour se of conduct to ascertain the presence of a contract.J. S04035/14

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Refuse Mgmt. , 448 Pa. Super. at 415-16, 671 A.2d at 1146 (citati ons 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 substantia ted

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 d efendant failed to pay fees for investigating “various personal injury cases.” Id. The defendant, inter

alia , challenged the sufficiency of evidence for an oral cont ract. Id. at 16- 17, 631 A.2d at 1033.

The Boyle Court disagreed: Instantly, the evidence presented by the [plaintiff 8 ] was more than sufficient to meet their burden of provin g the existence of an oral contract between the [plaintiff] and the [defendant]. The administrators’ testimony reveal s that the [defendant] would contact the [plaintiff] o r 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 hi m. 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 evide nce presented by the administrators was sufficient to meet

8 Because the plaintiff had passed away prior to trial, the administrators of the plaintiff’s estate—who were the plaintiff’s sons and worked with the plaintiff

— were substituted for the plaintiff. Boyle , 429 Pa. Super. at 7, 631 A.2d at 1028.J. S04035/14

- 12 - their burden of establishing the existence of an oral contract for investigative services between the parties. Additionally, the evidence established a course of deali ngs between the parties that proved that the [plaintiff] expected to be paid for his investigative services and wa s not accepting the investigation assignments on a contingency basis as alleged by the [defendant]. Finall y, the [defendant’s] own testimony establis hes the existence of an oral contract between the parties for investigat ive 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 mo st 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 contract s at issue. See also Donnelly , 553 Pa. at 611, 720 A.2d at 454 (holding appellat e court can affirm on any basis). Appellant, similar to the de fendant in Boyle , would contact Appellee with a purchase order specifying a project, albeit in response to Appellee’s proposal. See Trial Ct. Op. at 2-5; cf. Refuse Mgmt. , 448 Pa. Super. at 416, 671 A.2d at 1146 (statin g “offer may be accepted by conduct”); 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 , partially paid some of Appellee’s invoices. See Trial Ct. Op. at 2-5. Further, the instant parties, identical t o the Boyle parties, had aJ. S04035/14

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substantially similar, extensive course of dealing for al most 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 can not conclude that the evidence was such that a verdict for Appellant was cl ear. See Joseph , 89 A.3d at 260. Appellant’s claim that Appellees’ wit ness testimony and

documentation w ere deficient is belied by Appellant’s partial paymen t of 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 parties’ course of conduct relevant to ascertaining presen ce of oral contract). Accordingly, having discerned no abuse of discretion or er ror of law, we affirm the judgment below, albeit partially on othe r 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