J-S26032-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

LEHIGH CONCRETE, INC. AND ALLEN 

GRUBER

v.

RANDY BULT, TRAVIS BULT AND 

DIRT WORK SOLUTIONS, LLC

APPEAL OF: DIRT WORK 

SOLUTIONS, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2639 EDA 2022

Appeal from the Judgment Entered November 28, 2022

In the Court of Common Pleas of Lehigh County Civil Division at No(s): 

2020-C-1135

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED NOVEMBER 02, 2023

Dirt Work Solutions, LLC (“Dirt Work”) appeals from the judgment 

entered against it1 and in favor of Lehigh Concrete, Inc. and its owner, Allen 

Gruber (collectively, “Lehigh Concrete”). Dirt Work argues the court erred in 

awarding damages exceeding the amount Lehigh Concrete pleaded in its 

amended complaint. We affirm.

Dirt Work, a contractor, hired Lehigh Concrete as a subcontractor on a 

project to build two retaining walls at St. Luke’s Hospital in Saucon Valley. 

See Trial Court Opinion, 12/12/22, at 3-4. Lehigh Concrete later commenced 

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1 Randy Bult and Travis Bult were removed as defendants following 

preliminary objections. See Praecipe to Remove Defendants, 8/19/20, at 1; 

Order, 9/2/20, at 1.
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this litigation, alleging in an amended complaint that Dirt Work had failed to 

provide full consideration for the work it completed. Lehigh Concrete asserted

claims of breach of contract and unjust enrichment. 

In the body of the amended complaint, Lehigh Concrete alleged that it 

had submitted four invoices to Dirt Work, totaling $126,745.92:

• $15,929.14, 

• $35,779.28, 

• $8,925.00, and 

• $66,112.50.

Amended Complaint, 7/9/20, at 8 (unpaginated). It alleged that Dirt Work had 

only paid it $55,000 towards these invoices. It pleaded damages “in excess 

of” the allegedly remaining amount: $71,745.92. Id.

Lehigh Concrete also attached copies of the four invoices as exhibits to 

the amended complaint. However, in contrast to the allegations in the body of 

the complaint, the first invoice stated that Dirt Work owed Lehigh Concrete

$5,929.14, rather than $15,929.14. See Amended Compl. at Ex. A. Moreover, 

the invoice stated it represented work totaling $60,929.14, but that only

$5,929.14 was still due because the invoice accounted for Dirt Work’s $55,000 

payment – the same payment which Lehigh Concrete had again deducted from 

the total amount of the invoices when calculating damages in the body of the 

complaint. See id.

In its pretrial statement, Lehigh Concrete changed its demand to

$116,745.92 “plus cost of add-ons.” Lehigh Concrete’s Pretrial Statement, 
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9/8/22, at 2. Lehigh Concrete’s proposed findings of fact stated that the four 

invoices totaled $171,745.92, Dirt Work had paid $55,000 towards that total, 

and the outstanding balance was $116,745.92. Lehigh Concrete’s Proposed 

Findings of Fact, 9/8/22, at 2-3. Dirt Work did not request a trial continuance.

At trial, nearly two weeks after the filing of the pretrial statement, 

Lehigh Concrete submitted the invoices into evidence, as P-3 through P-6. Dirt 

Work did not object. Lehigh Concrete offered testimony substantiating the 

invoices and that the total outstanding amount was $116,745.92. Dirt Work 

objected to the testimony, because Lehigh Concrete had only pleaded

$71,745.92 in damages in the amended complaint. The court overruled the 

objection.

2

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2 The discussion went as follows:

[Dirt Work]: The complaint and amended complaint is $71,245.92 

and testimony just took a variance from that at a $116,000 which 

is - - should have been an amended complaint so we just ask that 

the Courts note that, and that the proper procedure should have 

been followed if [they] wanted [it] to be increased [to] 116.

THE COURT: What was the exact number? . . . 

[Lehigh Concrete]: We are aware where it says [“in excess of”] 

71, I just added the numbers of the bills that were submitted as 

$116,745.80. . . . 

THE COURT: And that is - - so you’re adding together Exhibit 3?

[Lehigh Concrete]: P-3, through P-6. P-1 and 2 being estimates, 

and the other four bills subtracting 55,000 my clients bring until 

the debt is paid. . . .

(Footnote Continued Next Page)
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The court found against Dirt Work in the amount of $107,820.92. It 

found Dirt Work was not liable for the invoice for $8,925.00, but that it owed 

Lehigh Concrete the total shown in the other three invoices, less the $55,000 

payment it had made.

Dirt Work filed a motion for post-trial relief,

3 which the court denied.

Dirt Work appealed,

4 and raises the following question: “Did the [trial] court 

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[Dirt Work]: But again, Your Honor, being a contract case and the 

complaint and the amended complaint set forth 71,245.92, there 

should have been proper pleading amendments done in a timely 

manner.

THE COURT: Well, how do you account for the discrepancy, 

[Lehigh Concrete]?

[Lehigh Concrete]: Subtraction paragraph 49, I think what it boils 

down to. Because we added up the total and subtracted 55 that 

was already accounted for in P-4.

[Dirt Work]: And that’s fine, Your Honor, but again it’s in the 

pleadings.

THE COURT: Which specifically states [“]in excess of 71,745[”] so 

I’ll allow him to assert the figure here in the courtroom. Go ahead.

N.T., 9/21/22, at 41-43.

3 Although styled as a motion for reconsideration, rather than for post-trial 

relief, Dirt Work filed its motion challenging the court’s verdict within 10 days 

of the court’s decision following trial. See Pa.R.C.P. 227.1(c)(2) (stating 

motions for post-trial relief must be filed within 10 days of the filing of the 

decision in a non-jury trial). We therefore do not find the title of the motion 

renders Dirt Work’s issue waived, as Lehigh Concrete argues. See De Lage 

Landen Fin. Servs., Inc. v. Rozentsvit, 939 A.2d 915, 923 (Pa.Super. 

2007).

4 Dirt Work filed the notice of appeal after the court denied its post-trial 

motion, but before the trial court entered judgment on the docket. Judgment 

(Footnote Continued Next Page)
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err by granting a judgment to Lehigh Concrete in excess of what it pleaded in 

the operative complaint in which it alleged breach of contract, account stated, 

and unjust enrichment?” Dirt Work’s Br. at 3.

Dirt Work argues that the court erred in awarding Lehigh Concrete 

$107,820.92 when the amended complaint pleaded damages of $71,745.92.

Dirt Work argues that its “first indication” that Lehigh Concrete sought a 

greater amount – $116,745.92 – was when it submitted its brief “on the eve 

of trial.” Id. at 9. Dirt Work claims it was prejudiced by the variance because 

if “the amount Lehigh Concrete sought at trial been pleaded in its [amended 

c]omplaint, then Dirt Work would have adduced discovery to probe that claim 

(which it disputed at trial and timely objected to), and possibly could have 

retained an expert review of that claim.” Id. at 8-9. 

“Our standard of review in non-jury trials is to assess whether the 

findings of facts by the trial court are supported by the record and whether 

the trial court erred in applying the law.” Woullard v. Sanner Concrete & 

Supply, 241 A.3d 1200, 1207 (Pa.Super. 2020) (citation omitted). Our 

standard of review of questions of law is de novo and our scope of review is 

plenary. Kripp v. Kripp, 849 A.2d 1159, 1164 n.5 (Pa. 2004).

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has since been entered, perfecting the appeal. See Pa.R.A.P. 905(a)(5) (“A 

notice of appeal filed after the announcement of a determination but before 

the entry of an appealable order shall be treated as filed after such entry and 

on the day thereof”). We have amended the caption to reflect that the appeal 

lies from the entry of judgment. See Brown v. Phila. Coll. of Osteopathic 

Med., 760 A.2d 863, 865 n.1 (Pa.Super. 2000).
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This Court has previously set forth the law of variance as follows:

A variance denotes difference and in reference to legal 

proceedings, it refers to a disagreement or difference between the 

allegations made and the proof shown, not in the sense that there 

is a failure of proof, but that, contrary to the fundamental principle 

of good pleading and practice, the proof fails to materially 

correspond to the allegations. A material variance consists of a 

departure in the evidence from the issues on which the cause of 

action must depend.

For purposes of determining whether a claimed or apparent 

discrepancy between pleadings and proof constitutes a variance, 

the entire pleadings and evidence should be considered. 

Generally, in order to constitute a variance, the discrepancy must 

exist between the allegations and proofs of the particular party, 

with the result that a party is not permitted to introduce evidence 

that is inconsistent with or fails to correspond to the allegations 

made by that party.

The modern rules of pleading and practice are relatively liberal. 

Consequently, the impact of variance may be diminished by the 

preference for a liberal, if not informal, evaluation of pleadings 

emphasizing the determination of cases based upon their merits 

rather than based on mere technicalities, which policy, for 

example, may allow a party to cure a variance by offering, during 

or after trial, to amend the pleadings to conform to the proof.

Young v. Lippl, 251 A.3d 405, 418 (Pa.Super. 2021) (quoting Graham v. 

Campo, 990 A.2d 9, 13-14 (Pa.Super. 2010)) (brackets omitted).

Relief is only warranted where the variance is material and prejudices 

the defendant. That is, even where the things alleged and the things proven

“may not entirely agree, if the defendant is not misled, and the variance does 

not in any way affect the trial on its merits, or set up a different cause of 

action, or impose any different burden on the defendant, the variance will not 

be considered material.” Lippl, 251 A.3d at 418-19 (quoting Higgins Lumber 
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Co. v. Marucca, 48 A.2d 48, 49-50 (Pa.Super. 1946) (emphasis omitted).

5 A 

variance is not material where it “merely adds to or amplifies the original 

complaint.” Graham, 990 A.2d at 14 (citation and emphasis omitted).

Here, the trial court explained that it found Lehigh Concrete had “made 

a scrivener’s error” when pleading the total damages in the Amended 

Complaint, by “errantly deduct[ing Dirt Work]’s $55,000.00 payment twice” 

from the total shown in the invoices. Trial Ct. Op. at 4. It further found Dirt 

Work was not prejudiced by the error, because it was put on notice of the 

actual amount of damages through the invoices:

All of the invoices were properly attached to the Amended 

Complaint and have been in [Dirt Work]’s possession throughout 

this litigation. There is no prejudice to [Dirt Work] in awarding 

[Lehigh Concrete] the measure of damages that adequately 

compensates them for the work performed. [Dirt Work] should not 

reap the benefit of a mathematical miscalculation in the body of 

the amended complaint, when the proper documentation was 

attached thereto.

Id. (footnote omitted). The court also observed that the amount it awarded 

Lehigh Concrete was at least $75,000 less than its pre-construction price

estimate.

We agree that Dirt Work was not prejudiced by any variance between 

the allegations and the evidence. In its amended complaint, Lehigh Concrete 

clearly alleged damages in the amount of the four unpaid invoices, less one 

$55,000 payment. Although Lehigh Concrete later recalculated the total, the 

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5 See also Rachlin v. Edminson, 813 A.2d 862, 871 (Pa.Super. 2002) (en 

banc) (stating that a variance “may result in preclusion . . . if it constitutes a 

new cause of action and is prejudicial to the defense”) (citation omitted).
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total amount reflected in each of the four invoices attached to the complaint 

did not vary and the alleged reason for each invoice did not vary. Lehigh 

Concrete did not add a new cause of action or legal theory, affect the facts at 

issue at trial, or impose any different burden on Dirt Work to defend against 

the sums listed in the invoices. Although Dirt Work claims it would have 

elicited discovery or introduced expert testimony regarding the recalculation, 

it has not identified the nature of discovery or expert opinion it could have 

obtained. Moreover, the incongruity between the invoices and the amended 

complaint should have put it on notice that it needed to investigate further 

and determine if it needed further discovery or expert opinion. 

Judgment affirmed.

Date: 11/2/2023