NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 23-1097

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ALLIED ERECTING & DISMANTLING CO INC; 

ALLIED CONSOLIDATED INDUSTRIES INC, Agent of for and on 

behalf of Allied Erecting and Dismantling Co Inc

v.

UNITED STATES STEEL CORP,

 Appellant

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2-16-cv-01379)

District Judge: Honorable Patricia L. Dodge

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

on February 7, 2024

Before: HARDIMAN, SCIRICA, and SMITH, Circuit Judges.

(Filed: May 22, 2024)

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does 

not constitute binding precedent.
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SCIRICA, Circuit Judge

This is a breach of contract action brought by plaintiffs/appellees Allied Erecting & 

Dismantling Co., Inc. (“Allied”) and its agent Allied Consolidated Industries, Inc. against 

defendant/appellant United States Steel Corporation (“U.S. Steel”). Following a bench 

trial, the District Court found U.S. Steel liable in relevant part and awarded Allied damages.

U.S. Steel now appeals a portion of that damages award. For the reasons below, we will 

affirm.

I.

Because we write principally for the parties, who are familiar with the factual 

context and legal history of this case, we will set forth only those facts necessary to our 

analysis.

Allied was U.S. Steel’s longtime industrial dismantling contractor. It has performed

over 600 dismantling projects for U.S. Steel since 1980. The parties’ relationship and 

Allied’s dismantling work was governed by a series of agreements. Those agreements 

granted Allied the right to perform all of U.S. Steel’s dismantling work for a 10-year period 

on a “last look” basis. App. 8. Specifically, if the parties were unable to negotiate the 

terms for Allied to perform a specific dismantling project, U.S. Steel would “competitively 

bid the work” and determine the “most acceptable bid.” Id. at 9. The agreements required 

U.S. Steel to then submit the “most acceptable bid” to Allied so that Allied could determine 

whether to “match the terms of the most acceptable bid” and “agree to perform the work 

on such terms.” Id. at 10. 

“Last look projects were fixed price, lump sum projects” in the sense that “Allied’s 
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compensation was based on its agreement to match the price in the most acceptable bid.” 

Id. at 23-24. Allied would also earn money by selling the scrap metal it generated from its 

dismantling work.

The parties’ relationship has been “contentious,” resulting in a series of lawsuits 

over the years. Id. at 7-8. Allied commenced the present action in September 2016,

alleging five claims for breach of contract. The claims relevant to this appeal are: (1) 

failure to honor Allied’s last look rights in connection with dismantling certain 

decommissioned railroad cars and barges, for which Allied sought lost profit damages 

(Count II); (2) wrongfully terminating Allied from its work on the Magnetic Separator Roll 

Removal Project at U.S. Steel’s Minntac facility, for which Allied sought, among other 

things, “the value of scrap it removed while on the project as well as scrap removed by 

others after it was terminated” (Count III), id. at 47; and (3) prohibiting Allied from 

completing a dismantling project at U.S. Steel’s Fairless Works site, for which Allied 

sought “the value of the scrap that was left at the Fairless site” (Count V), id. at 52.

Following a thirteen-day bench trial which concluded on November 20, 2020, as 

well as post-trial closing arguments on April 26, 2021, the District Court issued a 77-page 

memorandum opinion with findings of fact and conclusions of law, finding, in relevant 

part, for Allied.1 The District Court awarded Allied a total of $3,758,705 in damages—

subsequently increased to $5,708,077.67 with prejudgment interest. That damages award 

included $915,314 for Count II, $564,355 for the Minntac scrap metal claims in Count III, 

1 U.S. Steel did not contest liability with respect to Count II pursuant to a stipulation 

and verdict from prior litigation.
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and $1,387,475 for Count V. The District Court calculated damages primarily based on 

evidence from Allied’s damages expert who was “Allied’s outside accountant for 

approximately fifty years.” Id. at 11. The District Court found Allied’s expert to be “more 

credible” than U.S. Steel’s rebuttal expert, the cross-examination of whom “revealed 

inadequate investigation, a lack of understanding of the parties’ contracts and documents 

and fundamental flaws in his analysis, all of which substantially undermined his credibility 

as a rebuttal expert witness.” Id. at 23, 26.

This timely appeal followed.

II.2

On appeal, U.S. Steel argues Allied’s lost profits damages “were not sufficiently 

reduced by the costs Allied avoided.” Appellant Br. 4. U.S. Steel urges us to apply de 

novo review. 

“Review of the District Court’s damages calculation is a mixed question of law and 

fact.” VICI Racing, LLC v. T-Mobile USA, Inc., 763 F.3d 273, 293 (3d Cir. 2014). While 

“[t]he determination of what legal standard to apply when calculating damages, and 

whether that standard was properly applied, are questions of law,” “[t]he determination of 

facts upon which to apply this legal standard is a question of fact.” Id. Here, U.S. Steel 

does not dispute “[t]he District Court recited the proper standard, including the requirement 

to reduce damages by the amount of actual costs avoided.” Id. at 294. Rather, it challenges 

the District Court’s calculation of avoidance costs—in essence, a factual determination. 

2 The District Court had jurisdiction under 28 U.S.C. § 1332. We have appellate 

jurisdiction under 28 U.S.C. § 1291.
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We therefore review for clear error. See also Advanced Fluid Sys., Inc. v. Huber, 958 F.3d 

168, 187 n.26 (3d Cir. 2020) (“The Huber Parties challenge the District Court’s factual 

determination that certain costs should be excluded from its lost profits damages award. 

We review that factual determination for clear error.” (citation omitted)). 

“A finding of fact is clearly erroneous when it is completely devoid of minimum 

evidentiary support displaying some hue of credibility or bears no rational relationship to 

the supportive evidentiary data.” Berg Chilling Sys., Inc. v. Hull Corp., 369 F.3d 745, 754 

(3d Cir. 2004) (internal quotation marks omitted). Furthermore, “[t]o the extent that the 

District Court’s conclusions rested on credibility determinations, our review is particularly 

deferential.” Travelers Cas. & Sur. Co. v. Ins. Co. of N. Am., 609 F.3d 143, 156-57 (3d 

Cir. 2010). 

Under this standard, we have no trouble concluding the District Court did not clearly 

err in its damages calculation. The District Court’s 77-page memorandum opinion

contained detailed and thorough factual findings on damages for each of Allied’s claims. 

Under Pennsylvania law, damages for breach of contract need only be calculated to a 

“reasonable certainty.” ATACS Corp. v. Trans World Commc’ns, Inc., 155 F.3d 659, 669 

(3d Cir. 1998). This standard embraces a “rough calculation.” Id. It “does not require 

mathematical certainty.” VICI Racing, 763 F.3d at 297 (quoting Schulz v. Pa. R.R., 350 

U.S. 523, 526 (1956)). 

Moreover, the District Court made clear its damages calculations relied on 

testimony from Allied’s damages expert, whom the District Court found to be “more 

credible” than U.S. Steel’s rebuttal expert. App. 23; see also, e.g., id. at 30 (“giv[ing] 
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substantially more weight to the opinions of [Allied’s expert] as to the damages” for Count 

II), 71 (finding “reasonable” Allied’s expert’s calculation of lost profits with respect to 

Count III). “[W]hen a trial judge’s finding is based on [her] decision to credit the testimony 

of one of two or more witnesses, . . . that finding, if not internally inconsistent, can virtually 

never be clear error.” Anderson v. City of Bessemer, 470 U.S. 564, 575 (1985). 

Accordingly, we find no clear error in the District Court’s damages determinations 

with respect to Counts II, III, and V. 

III.

For the foregoing reasons, we will affirm.