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 Pleas in favor of 

Appellee, Prieto Corporation. Appellant claims the trial court improperly 

construed the Contractor and Subcontractor Payment Act1

(“CASPA”) and 

challenges the sufficiency of evidence for an oral contract between the 

parties. We hold that a “curb” is both a structure and an alteration of real 

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. 
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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 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 

[Appellant’s] office. In response, [Appellant’s] office would 

send a purchase order to [Appellee], and [Appellee] would 

perform the work as set forth in [Appellant’s] purchase 

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 nonpayment 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 

“that where the accuracy of a pertinent document is undisputed, the Court 

could consider that document if it was in the Reproduced Record, even 

though it was not in the record that had been transmitted 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, because a copy of the 

trial transcript is part of the reproduced record and neither party has 

disputed its accuracy, we will resolve Appellant’s claims on their merits. See 

id.
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The trial court’s opinion also included numerous findings 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 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 

setting up a “string line,” purchasing concrete, putting concrete into a “curb 

machine,” and building curbs along roadways. R.R. at 270a-71a. Appellee 

did not “grade,” dig, or excavate the development. Id. at 271a-72a. 

Sometimes, instead of pouring concrete, Appellee constructed curbs using 

“Belgian block” forms.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 The record did not define numerous terms, including “string line” and “curb 

machine.”

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 principles [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 [CASPA] 

applied to [Appellee’s] claims when the evidence presented 

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? 

Appellant’s Brief at 7-8.

For its first issue, Appellant argues the trial court misconstrued CASPA 

to encompass the work at issue. Specifically, Appellant maintains the 

statutory phrase “constructing driveways and private roadways 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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property” excludes the construction of curbs and therefore CASPA does not 

apply. Id. at 7 (quoting 73 P.S. § 502). We hold Appellant is 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 application of the law.” 

Refuse Mgmt. Sys., Inc. v. Consol. Recycling & Transfer 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 verdict] 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 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. (alteration, citations, punctuation, and formatting omitted). “Absent a 

definition, statutes are presumed to employ words in their popular and plain 

everyday sense, and popular meanings of such words must prevail.” 

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). 

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: 
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“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 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. 

“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 construction, production, or piece of work 

artificially built up or composed of parts purposefully 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 defined “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 their reasoning.” 

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 

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 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 

“vertical or sloping member generally along and defining 

the edge of a roadway.” Moreover, the regulations also 

define a curb line 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 an 
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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 border 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 that Appellee’s witnesses 

and documents did not sufficiently establish the contract terms. Appellant 

suggests that the purchase orders it sent to Appellee and Appellee’s invoices 

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, 

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 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 

intent. We must, therefore, look to the parties’ course of 

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 

for investigating “various personal injury cases.” 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 

the [defendant]. The administrators’ testimony reveals 

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 

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. 
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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, 

the [defendant’s] own testimony establishes 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 

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 (stating “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 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, 

89 A.3d at 260. Appellant’s claim that Appellees’ witness testimony and 

documentation were deficient is belied by Appellant’s partial payment 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 presence of oral contract). 

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