J-S35025-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BOREL BUILDERS, INC. 

Appellant

v.

BRIAN AND PAMELA BURKE 

BRIAN AND PAMELA BURKE

 v.

BOREL BUILDERS, INC. AND 

STEPHEN BOREL 

Appellant

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 

No. 1445 MDA 2021

Appeal from the Judgment Entered on March 2, 2022

In the Court of Common Pleas of Susquehanna County Civil Division at 

No(s): 2017-00083 CP, 

2017-01244 CP

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY McLAUGHLIN, J.: FILED JANUARY 24, 2023

Borel Builders, Inc. and its owner, Stephen Borel, (collectively, “Borel”) 

appeal from the judgment entered on two related actions stemming from the 

construction of the residential home of Brian and Pamela Burke. Borel argues 

the court erred in sua sponte concluding that Borel had waived a statute of 

limitations defense, finding that the defense lacked specificity, holding that 

____________________________________________

* Former Justice specially assigned to the Superior Court.
J-S35025-22

- 2 -

Borel could not pursue a claim for quantum meruit/unjust enrichment, and 

denying Borel’s claim for prejudgment interest. We affirm.

In May 2012, the Burkes contracted with Borel to construct a home for 

$402,880. The contract allowed the Burkes to retain any money sufficient to 

cover any non-conforming or incomplete work, and to hire a third-party to 

complete or remedy the defective work after a 30-day period. Ex. B-1, 

Agreement, at 3, Sec. 6. The contract stated that final payment would be due 

when the Burkes began to occupy the home, except for any amount that they 

had escrowed for incomplete or non-conforming work. Id. at 2, Sec. 3 and 3, 

Sec. 6. The contract provided that payments due and unreasonably held would 

incur interest of 5% per day after 10 days, unless the payment had been

withheld due to incomplete or non-conforming work. Id. at 3, Sec. 7.3. It also 

included a provision allowing the Burkes to submit a list of complaints and 

defects to Borel within one year of the date of occupancy and requiring Borel 

to make any reasonable and necessary repairs, adjustments, or replacements

within 60 days of receipt of the list and for no additional cost. Id. at 2, Sec. 

6.

The contract contained an integration clause stating that it “supersedes 

prior negotiations, representations or agreements, either written or oral.” Id.

at 1 Sec. 1. It stated that “Modifications issued after execution of this 

agreement shall be by work order requisitions with amounts of debit or credit 

to be initialed by the contractor and owner.” Id. The contract further specified 

that “Change orders will be executed upon receipt of request form signed by 
J-S35025-22

- 3 -

Contractor and at least one of the owners. Payment terms for each change 

order will be mutually agreed upon and specified on each request.” Id. at 3 

Sec. 7.10. The contract also stated that any modifications exceeding the 

contract price “are to be paid out of owner funds.” Id. at 1 Sec. 1. 

The “Proposal” section of the contract outlined the various materials to 

be used and the total cost allowance for some areas (such as floor coverings). 

It stated, “Customers are responsible for any costs that exceed allowances.” 

Ex. B-2, Proposal, at 4.

The Burkes moved into the home in February or early March 2013 and 

paid the contract price in full. See Trial Court Opinion, 10/8/21, at 5.1In 

January, February, April, and July 2013, and in February and March 2014, the 

Burkes sent “punch lists” to Borel, requesting it make certain repairs or 

alterations. See id. In February 2014, after performing some of the requested 

work, Borel submitted an invoice for $42,968.25 (“the invoice”), which the 

Burkes refused to pay.

Borel initiated suit against the Burkes in January 2017 by filing a 

praecipe for a writ of summons. Borel thereafter filed a complaint alleging,

“During the course of the construction[,] the Burkes requested that changes 

be made to the contract including, but not limited to, changes in materials and 

fixtures allotted in the [c]ontract.” Borel Complaint at ¶ 5. The complaint 

____________________________________________

1 We will refer to the opinion issued by the court when it decided the matter 

as the “Trial Court Opinion” and the opinion issued by the court pursuant to 

Rule 1925(a) as the “Pa.R.A.P. 1925(a) Opinion.”
J-S35025-22

- 4 -

stated that Borel “issued an invoice for the costs of the change orders” that 

the Burkes refused to pay, making the Burkes “in breach of their obligations.”

Id. at ¶ 9-10, 14. Borel requested the full invoice amount plus statutory 

interest. The complaint alleged that none of the items on the invoice had been

included in the punch lists. Id. at ¶ 12. Borel attached copies of the contract 

and invoice to the complaint.

Rather than file a counterclaim, the Burkes filed a separate suit against 

Borel in November 2017, by filing a praecipe for a writ of summons. The 

subsequent complaint set forth claims for breach of contract and breach of 

warranty based on defective workmanship and Borel’s failure to remedy the 

items in the punch lists. The complaint also alleged the items in Borel’s invoice 

“were never agreed upon.” Burkes’ Complaint at ¶ 17. The Burkes sought 

damages exceeding $50,000.

Borel answered and raised new matter. In relevant part, Borel asserted

the Burkes’ “claims are barred by the applicable statute of limitations.” Borel’s

New Matter, 5/10/19, at ¶ 29. The Burkes answered that no response was 

required to this legal conclusion. Burkes’ Answer to Borel’s New Matter, 

9/30/19, at ¶ 29.

The trial court consolidated the two cases. It held a non-jury trial on 

March 29 and June 28, 2021.

Relevant to this appeal, Counsel for Borel made the following argument 

to the court regarding its statute of limitations defense:
J-S35025-22

- 5 -

Next, we did make a number of affirmative defenses or make —

provide a number of affirmative defenses in our new matter. One 

of those affirmative defenses was the statute of limitations in this 

matter which is four years on a contract claim. The suit, the 

Burkes’ suit was filed on November 17, 2017. The Burkes testified 

and the exhibits show and as my client testified, that the Burkes 

were in their house as of February 7, 2013, more than four years 

passed between the time that they should have known of any 

deficiencies when they brought suit. Indeed, all of the Burkes’ 

claims appear to be backed up by the testimony of Mr. Sincavage2

who claims that he was aware of the claimed deficiencies at the 

time the work was performed, all of which was before the Burkes’ 

moved into the house. So, all of Mr. Sincavage’s knowledge came 

about before February 7, 2013. Therefore, the Burkes are 

presumed to be aware of that and I believe Mr. Sincavage testified 

that he made them aware of the deficiencies before they moved 

in. Mr. Sincavage also testified that he continually made the 

Burkes aware of those deficiencies at the time that he became 

aware of them. As such, because the Burkes were aware of the 

claimed deficiencies, before they moved in the date of February 

7, 2013, the Burkes had ample time to initiate suit prior to the 

running of the statute of limitations. By reason that statute of 

limitations ran prior to the filing of the suit, we ask this court to 

dismiss the Burkes’ claims, remaining claims as a matter of law. 

N.T., 6/28/21, at 86-87 (some apostrophes removed or moved). Counsel for 

the Burkes responded that the statute of limitations had been tolled because 

the breach was not “fully perfected” until the parties had abandoned their 

attempts to resolve the dispute. Id. at 87-88.

The court entered a decision on October 12, 2021.3 On the Burkes’

breach of contract claim, it awarded $20,892.57 in compensatory damages 

____________________________________________

2 Paul Sincavage testified for the Burkes as an expert in the field of residential 

construction.

3 The court issued the order and opinion on October 8, 2021, but provided 

Pa.R.C.P. 236 notice on October 12, 2021.
J-S35025-22

- 6 -

based on Borel’s failure to rectify defective workmanship that had been

specified by the contract.4It dismissed the Burkes’ breach of warranty claim 

as redundant to the breach of contract action.

The court found Borel’s statute of limitations defense would have been 

meritorious as to any defects the Burkes identified prior to November 17, 2013 

(four years before they filed the writ of summons), but that the defense was 

waived for lack of specificity in the pleading. Trial Ct. Op. at 24 (citing ElGharbaoui v. Ajayi, 260 A.3d 944 (Pa.Super. 2021)). In its Rule 1925(a) 

opinion, the trial court explained that, although the Burkes had not raised a 

waiver argument, “review of the adequacy of Borel Builders’ pleading was 

necessary to ascertain whether the statute of limitation defense applied.” 

Pa.R.A.P. 1925(a) Opinion, 12/10/21, at 3. 

The court also awarded Borel $27,458.995for its “breach of contract 

claim as to failure to pay for overages/non-contractual work,” because the 

contract specified the Burkes would be “responsible for any costs that exceed 

allowances.” Trial Court Order, 10/8/21, at ¶ 8; Trial Ct. Op. at 28. The court 

____________________________________________

4 This figure is comprised of $1,810.00 for improper framing lumber, 

$7,944.75 for improper installation of the basement concrete floor, $3,010.00 

for improper installation of the electrical system, $5,127.82 for improper 

installation of the soffits, $500.00 for flawed tinting of the shower door, and 

$2,500.00 for improper installation of the bathtub.

5 This figure includes $2,385 for additional insulation, $3,725.55 for plumbing, 

$2,043.44 for flooring, $8,792.00 for a fireplace, and $12,150.00 for a granite 

countertop, offset by credits that Borel owed to the Burkes for trim 

($1,220.00) and electrical ($415.00). See Trial Ct. Op. at 28. While these 

amounts total $27,460.99, and not $27,458.99, neither party has raised a 

trial court error based on the two-dollar difference.
J-S35025-22

- 7 -

denied Borel’s request for prejudgment interest on the compensation for these 

items on the basis that the contract allowed the Burkes to withhold payment 

for non-conforming work and did not state that interest would accrue. Trial 

Ct. Op. at 30 n.10. It found “non-conforming work existed and . . . the parties 

had a bona fide dispute over the conformity of the work.” Id.

In its Rule 1925(a) opinion, the court explained that prejudgment 

interest is only appropriate when payment due under a contract was 

wrongfully withheld, but here, it found the contract permitted the Burkes to 

withhold payment on contested overages and/or extra work. Pa.R.A.P. 1925 

Op. at 9-10, 14, 16 n.14. The court observed that this contract provision did 

not state that interest would accrue, in contrast to the clause providing for 

interest for overdue payments. Id. at 13. The court found that the Burkes had 

refused to pay the invoice only after Borel had failed to correct the nonconforming work and the Burkes had resorted to paying other contractors to 

correct the defects. Id. at 14. The court therefore concluded the Burkes had 

not “wrongfully” withheld the payment for overage amounts. 

The court also observed that prejudgment interest must be 

ascertainable from the contract, and here, the Burkes had paid the full 

contract price in a timely manner and the additional amount in dispute was

not ascertainable from the terms of the contract and not until the court had 

decided the matter. Id. at 10-12 and n.10 (citing Section 354 of the 

Restatement (Second) of Contracts and contrasting the facts of the instant 
J-S35025-22

- 8 -

case with those of Burkholder v. Cherry, 607 A.2d 745 (Pa.Super. 1992)).

The court noted,

To hold otherwise would put the [homeowners] in a situation 

where, in order to avoid the imposition of prejudgment interest, 

they would need to tender payment for any amounts-no matter 

how questionable or unreasonable – that a contractor alleges are 

due and owing, even if those amounts are outside the agreed 

amount stated in the written contract.

Id. at 12 n.10.

The court found the Burkes were not liable to reimburse Borel for the 

other items included in the invoice.

6 The court observed that Borel’s 

“complaint is based solely upon an alleged breach of the written contractual 

agreement between the parties, which specifically required that any 

modifications were to be written and approved by both parties.” Trial Ct. Op. 

at 30; see also Pa.R.A.P. 1925(a) Op. at 5-6, 6 n.5 (observing that a copy of 

the contract was attached to the complaint, and the complaint alleged that 

the Burkes were “in breach” for failing to pay for change orders and did not

allege any non-contractual work or advance any quantum meruit/unjust 

enrichment claims). The court noted Borel did not “file[] a claim for quantum 

meruit or unjust enrichment relative to the work and/or materials provided 

outside of the parties’ contractual agreement.” Trial Ct. Op. at 29 n.7.

____________________________________________

6 This included trim work, a booster pump, base partition work, well hookup, 

porch screen materials upgrade, and the lower oak staircase. The invoice had 

requested $12,830 for these materials and work. See Trial Ct. Op. at 29-30; 

Pa.R.A.P. 1925(a) Op. at 9 n.8.
J-S35025-22

- 9 -

The court found that as breach of contract claims, Borel’s claims for 

these items failed because the contract had not been amended in writing with 

change orders specifying the cost of the disputed items. Id. at 29-30 & n.8, 

n.9. The court also found that the Burkes were not liable for the cost of these 

items because, without amendment, the contract had not stated that these 

items would incur overage costs.

7 Trial Ct. Op. at 28. 

In its Rule 1925(a) opinion, the court explained that it found the contract 

was too broad regarding the disputed items to determine that they were not 

covered or included in the contract price. Pa.R.A.P. 1925(a) Op. at 7-8. It also 

explained that it found Borel’s quantum meruit/unjust enrichment claims

failed on the merits because Borel “failed to provide sufficient evidence to 

demonstrate that the Burkes were not only aware of the additional work but 

likewise understood that the work itself was outside the scope of the work 

required under the parties’ written contract, understood the cost of the 

additional work, and agreed to have it performed.” Id. at 5 n.4. It found 

Pamela Burkes’ testimony that the Burkes believed the disputed items were 

included in the contract price to be credible. Id. at 5 n.4, 8-9. The court 

stated:

____________________________________________

7 Regarding the trim installation, the court found that the proposal identified 

that trim work would be included but did not list any cost allowance other than 

“To Be Assessed,” and did not state that the Burkes would be responsible for 

the cost to install the trim. Trial Ct. Op. at 28-29. The Burkes purchased the 

trim from an outside vendor, and the court concluded the cost to install the 

trim was contemplated in the contract price. Id. In contrast, the court stated 

that it found the other items were not included in the contract. Id. at 29-30.
J-S35025-22

- 10 -

This is not a situation where the Burkes paid nothing to Borel 

Builders; rather, this is situation where the Burkes paid the full 

contractual amount, while they were still in the process of 

attempting to get problems resolved by Borel Builders, only to be 

provided with an additional bill after full payment contending that 

they owed an additional $42,000. Given the equitable nature of a 

quantum meruit claim, even assuming that Borel Builders had 

conferred some benefit to the Burkes that was outside the parties’

written contractual agreement, the court finds that it would not 

be unjust or unconscionable to allow them to retain that benefit 

without further payment.

Id. at 8. The court found it was “especially true” that equity fell in favor of the 

Burkes considering that Borel had used a lesser grade of lumber for framing 

the home than had been required by the contract, for which Borel spent 

“substantially less money.” Id. at 9 n.7, 14 n.12. The court also found that 

Borel had failed to prove that the disputed items conferred a benefit on the 

Burkes exceeding the contract price. Id. at 9 n.8.

Borel filed a Motion for Reconsideration, which the court denied.8 Borel 

appealed.

9, 10

____________________________________________

8 The court scheduled a hearing on the Motion, but then denied the Motion 

after receiving a letter from Borel stating the court must act on the Motion 

within the appeal period. See Order, 11/5/21.

9 Borel erroneously filed a notice of appeal from the decision entered on 

October 12, 2021, before judgment was entered. We will deem the notice of 

appeal filed on the date of the entry of judgment. See Pa.R.A.P. 905(a)(5); 

McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639, 645 and n.4 (Pa.Super. 2013).

We have amended the caption to reflect that the appeal lies from the entry of 

judgment on March 2, 2022.

10 Although Borel only filed one notice of appeal referencing two trial court 

docket numbers, we need not quash pursuant to Pa.R.A.P. 341(a), as the trial 

court had consolidated the two civil matters and Borel filed the notice of appeal 

(Footnote Continued Next Page)
J-S35025-22

- 11 -

Borel raises the following issues:

1. Did the lower court abuse its authority when it sua sponte raised 

a waiver issue to Borel’s claim that the four-year statute of 

limitations applied to all of the Burkes’ claims?

2. Did the lower court err when it determined that Borel’s statute 

of limitations defense contained in its new matter lacked 

specificity and, therefore, was waived as a matter of law?

3. Did the lower court err when it held that Borel was not 

permitted to seek damages against the Burkes for both an express 

contract and unjust enrichment under a single cause of action in 

the Borel Complaint?

4. Did the lower court err when it held that Borel was not entitled 

to statutory interest based upon the Burkes’ entitlement to 

withhold funds for non-conforming work?

Borel’s Br. at 4 (suggested answers omitted).

I. The Statute of Limitations

Borel’s first two issues relate to its statute of limitations defense. First, 

Borel argues that the court abused its discretion and committed an error of 

law by raising sua sponte that Borel had waived the defense by failing to plead 

it with specificity. According to Borel, the Burkes did not raise this waiver 

argument prior to, during, or after trial; rather, the court raised it for the first 

time in its decision. Borel argues that because the Burkes did not raise the 

issue in a preliminary objection, the Burkes waived it, and it was not properly 

before the trial court. Borel posits that aside from jurisdictional defects, courts 

should not raise arguments for the parties. 

____________________________________________

at the lead docket number. See Always Busy Consulting, LLC v. Babford 

& Co., Inc., 247 A.3d 1033, 1043 (Pa. 2021).
J-S35025-22

- 12 -

Second, Borel argues that the court erred in determining the defense 

failed for lack of specificity. Borel asserts that it “developed the factual 

underpinnings of the defense at trial and argued the specific facts and law at 

trial.” Borel’s Br. at 22. Borel provides citations to record evidence that it 

claims proves the Burkes discovered each of the construction deficiencies for 

which the trial court awarded them damages,

11 over four years before they 

commenced their breach of contract action in November 2017. Id. at 26. Borel 

quotes the portion of trial transcript where it argued to the court that the 

defense should apply. Borel points out that the court acknowledged in its 

opinion that some of the Burkes’ claims would have been barred by a statute 

of limitations defense, “if properly pled.” Id. at 25 (quoting Trial Ct. Op. at 

24).

Whether a statute of limitations precludes an action is a matter of law,

unless it requires a factual determination. Kessock v. Conestoga Title Ins. 

Co., 194 A.3d 1046, 1056 (Pa.Super. 2018). Our standard of review of 

matters of law is de novo, and our scope of review is plenary. Id.

A breach of contract claim must be brought within four years of the 

breach. 42 Pa.C.S.A. § 5525(a)(1). If the action is based on a latent defect in 

construction, the statute starts to run when the injured party becomes aware 

of the defect or should have become aware through the exercise of due 

____________________________________________

11 This includes improper framing lumber, improper installation of the 

basement concrete floor, improper installation of the electrical system, 

improper installation of the soffits, flawed tinting of the shower door, and 

improper installation of the bathtub. See note 4, supra.
J-S35025-22

- 13 -

diligence. A. J. Aberman, Inc. v. Funk Bldg. Corp., 420 A.2d 594, 599 

(Pa.Super. 1980). However, attempts to repair construction defects will toll 

the statute of limitations where the defendant represents the repairs will cure 

the defects and the plaintiff relies on the representations. Keller v. 

Volkswagen of Am., Inc., 733 A.2d 642, 646 (Pa.Super. 1999); Gustine 

Uniontown Assocs., Ltd. v. Anthony Crane Rental, Inc., L.P., 842 A.2d 

334, 344 n.8 (Pa. 2004).

12

In El-Gharbaoui, this Court affirmed the trial court’s denial of the 

statute of limitations defense following post-verdict motions because the 

appellant had only made a threadbare reference to the defense in his New 

Matter. Appellant had not pleaded “the factual underpinnings” upon which the 

defense rested. 260 A.3d at 963. We found waiver and affirmed on that basis,

even though the trial court had denied the defense after it erroneously 

concluded that the defendant had raised it for the first time following trial. Id. 

at 962;

13 see also JRW Serv. Grp., LLC v. New Age Dev. Grp., LLC, No. 

2309 EDA 2020, 2021 WL 1828481 at *2 (Pa.Super. 2021) (unpublished 

memorandum) (affirming court’s denial of claim following post-verdict motion 

on basis that defendant had waived claim by pleading it as a cursory legal 

____________________________________________

12 Likewise, the date the statute of limitations for breach of warranty actions 

begins to run depends on whether the warranty explicitly extended to future 

performance. See Cucchi v. Rollins Protective Servs. Co., 574 A.2d 565, 

572-73 (Pa. 1990).

13 We may affirm a trial court’s decision on any basis that is supported by the 

record. See In re A.J.R.-H., 188 A.3d 1157, 1175-76 (Pa. 2018).
J-S35025-22

- 14 -

conclusion without any factual support, although trial court had denied claim 

on different basis).

Pursuant to El-Gharbaoui, we find waiver. Borel’s pleading regarding 

the defense stated only a cursory legal conclusion: that the “claims are barred 

by the applicable statute of limitations.” Borel New Matter, 5/10/19, at ¶ 29.

Borel did not plead sufficient facts to substantiate the statute of limitations 

defense. 

Although the trial court raised the issue of waiver sua sponte, we discern 

no error. Borel’s failure to plead or substantiate the defense with specificity 

frustrated the trial court’s ability to decide the merits of the claim. We 

therefore affirm its finding of waiver. Cf. Kreiss v. Main Line Health, Inc., 

No. 1396 EDA 2018, 2019 WL 2305747, at *8 (Pa.Super. 2019) (unpublished 

memorandum) (rejecting appellant’s argument that appellee had waived 

statute of limitations defense by failing to plead relevant facts; appellant never

raised waiver in preliminary objects, the defense was argued before the trial 

court, and the court had been able to determine the defense had merit).

II. Borel’s Unjust Enrichment Claims

Borel next argues that the court erred in dismissing some of its claims14

on the basis that it had failed to plead quantum meruit/unjust enrichment.

Borel asserts that the invoice attached to its complaint plainly showed what 

____________________________________________

14 The court denied Borel’s request to be reimbursed for trim work, a booster 

pump, base partition work, well hookup, porch screen materials upgrade, and

the lower oak staircase. See note 6, supra.
J-S35025-22

- 15 -

work was done that was not included in the contract. Borel further argues that 

although it “did not divide its contract theories of recovery into separate 

causes of action to discern the different contractual relationships involved,” 

this “does not limit Borel from obtaining judgment against the Burkes under 

every type of contractual relationship.” Borel’s Br. at 29. Borel contends that 

pleadings for breach of contract may be amended to included quantum meruit, 

where the facts at issue are consistent. Borel further argues that its counsel 

argued at trial that Borel was seeking damages under theories of express, 

implied, and constructive contracts. Borel asserts it also proved at trial that it

performed the relevant work at the request of the Burkes, and that these 

items were not contemplated in the contract. 

We need not determine whether the court erred in concluding Borel had 

waived his claims quantum meruit/unjust enrichment by failing to plead them 

in the complaint, because we affirm the court’s findings that these claims fail 

on their merits.15

“Quantum meruit is an equitable remedy to provide restitution for unjust 

enrichment in the amount of the reasonable value of services.” Durst v. 

Milroy Gen. Contracting, Inc., 52 A.3d 357, 360 (Pa.Super. 2012) (quoting 

____________________________________________

15 We accept the findings of fact of a court sitting in equity, where supported 

by competent evidence, but review the court’s legal conclusions for an abuse 

of discretion or error of law. Wilson v. Parker, 227 A.3d 343, 352 (Pa.Super. 

2020).
J-S35025-22

- 16 -

Am. & Foreign Ins. Co. v. Jerry's Sport Ctr., Inc., 2 A.3d 526, 532 fn. 8 

(Pa. 2010)).

Where unjust enrichment is found, the law implies a contract, 

which requires the defendant to pay to the plaintiff the value of 

the benefit conferred. The elements necessary to prove unjust 

enrichment are:

(1) benefits conferred on defendant by plaintiff; (2) 

appreciation of such benefits by defendant; and (3) 

acceptance and retention of such benefits under such 

circumstances that it would be inequitable for defendant to 

retain the benefit without payment of value. The application 

of the doctrine depends on the particular factual 

circumstances of the case at issue. In determining if the 

doctrine applies, our focus is not on the intention of the 

parties, but rather on whether the defendant has been 

unjustly enriched.

Id. (quoting Mitchell v. Moore, 729 A.2d 1200, 1203-04 (Pa.Super. 1999)

(citations omitted). Because the critical question is whether the benefit is 

“unjust,” “[t]he doctrine does not apply simply because the defendant may 

have benefited as a result of the actions of the plaintiff.” McCabe v. 

Marywood Univ., 166 A.3d 1257, 1264 (Pa.Super. 2017) (citation omitted).

The court, sitting in equity, considered that the parties’ relationship was 

governed by a written contract that required written, signed change orders, 

and that Borel had not presented any such orders to the Burkes after they 

discussed the disputed items to obtain their consent for any additional costs. 

The court found Pamela Burkes’ testimony credible and concluded that the 

Burkes had believed the disputed items were included in the contract price; 

the court itself could not determine that the items were not included in the 
J-S35025-22

- 17 -

contract price. The court also found that allowing the Burkes to retain the 

alleged $12,830 in benefits would not be unjust, as Borel did not prove that 

these items did not make the cost of the project exceed the contract price, 

and because Borel had already saved a considerable sum during construction 

by using a lower-grade lumber than had been required by the contract.

These conclusions are supported by the record, and the court did not 

err or abuse its discretion in determining that Borel was not entitled to 

reimbursement for these items on a theory of quantum meruit/unjust 

enrichment.

III. Statutory Interest

Borel argues that the court abused its discretion and erred when it 

denied Borel’s claim for statutory interest. Borel argues that there was no 

evidence and no finding that the items for which the court awarded it contract 

damages16 were due to incomplete or non-conforming work; therefore, the 

Burkes did not have the right under the contract to withhold payment for this 

work. Borel also argues that although the Burkes could withhold payment for 

incomplete work, the contract provided they were to escrow those funds, 

which the Burkes did not do. Borel additionally argues that the Burkes waived 

this argument, as it did not raise as a defense that statutory interest was not 

____________________________________________

16 This includes $2,385 for additional insulation, $3,725.55 for plumbing, 

$2,043.44 for flooring, $8,792.00 for a fireplace, and $12,150.00 for a granite 

countertop. See note 5, supra.
J-S35025-22

- 18 -

permitted under the contract because of the provision allowing them to 

withhold funds for deficient work. 

Borel further argues that the amounts due were ascertainable, as they 

were itemized in the invoice. Borel asserts that the law provides that 

prejudgment interest must be awarded regardless of the Burkes’ good faith in 

contesting the payment. Borel also alleges that the Burkes did not withhold 

the payment out of good faith, as Pamela Burke testified that she did not even 

review a copy of the invoice until trial. 

We review an award of prejudgment interest for an abuse of discretion. 

Cresci Constr. Servs., Inc. v. Martin, 64 A.3d 254, 258 (Pa.Super. 2013).

We affirm the trial court’s denial of prejudgment interest in this case on the 

basis that the damages are not ascertainable from the contract.

Prejudgment interest “must be awarded notwithstanding the good faith 

of the party contesting the claim.” Pittsburgh Const. Co. v. Griffith, 834 

A.2d 572, 590 (Pa.Super. 2003). Interest is due even where the award is 

based on quantum meruit, where “the claim is for work done and services 

rendered.” Burkholder, 607 A.2d at 748. “The basic premise underlying the 

award of prejudgment interest to a party centers upon the fact that the 

breaching party has deprived the injured party of using interest accrued on 

money which was rightfully due and owing to the injured party.” Somerset 

Cmty. Hosp. v. Allan B. Mitchell & Assocs., Inc., 685 A.2d 141, 148 

(Pa.Super. 1996).
J-S35025-22

- 19 -

However, “[t]he disputed amount must be either specified in the 

contract or ascertained from the terms of the contract such that at the time 

of the breach, the breaching party can proffer a tender.” Cresci Const. 

Servs., Inc., 64 A.3d at 265. “Where the amount due and owing is not 

sufficiently definite, prejudgment interest is awardable at the discretion of the 

trial court.” Ely v. Susquehanna Aquacultures, Inc., 130 A.3d 6, 15 

(Pa.Super. 2015) (citing Cresci Constr. Servs., Inc., 64 A.3d at 260).

Here, the contract required the Burkes to pay a definite sum—$402,880. 

The Burkes paid that amount. Without any other written changes, Borel 

subsequently sent the Burkes an invoice for an additional $42,968.25. The 

trial court determined that the Burkes did in fact owe Borel a portion of this 

amount ($27,458.99), because the Burkes had requested Borel upgrade some 

of the areas/items definitively included in the contract in excess of the stated 

“allowance” for that area. However, the court found that the monetary 

amounts for these items were not defined by the terms of the contract, and 

we agree. Neither the contract nor any modification to the contract specified 

that the Burkes would be responsible for $2,385 for additional insulation, 

$3,725.55 for plumbing, $2,043.44 for flooring, $8,792.00 for a fireplace, or 

$12,150.00 for a granite countertop. As these amounts were not ascertainable 

from the contract, the court did not abuse its discretion in denying Borel’s 

claim for prejudgment interest.

Judgment affirmed.
J-S35025-22

- 20 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 01/24/2023