J

- S04017

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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY DIGUGLIELMO , ET AL.

Appellant

v.

CHRISTOPHER R. CAPEN, ET AL. :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 1400 EDA 2021

Appeal from the Judgment Entered June 9, 2021

In the Court of Common Pleas of Montgomery County

Civil Division at 2017

- 22626

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

MEMORANDUM BY MURRAY, J.: FILED MARCH 07, 2022

Anthony DiGuglielmo (Di G uglielmo) and Abruzzi Stone and Flooring, LLC

(Abruzzi) (collectively, Appellants)

, appeal the judgment of $33,696.00

entered against them and in favor of Christopher R. Capen (Capen), Charles

T. Wambold (Wambold)

, and Wall to Wall Custom Design Management (Wall

to Wall) (collectively, Defendants ) , in this breach of contract action. 1 We

affirm.

Defendant Wall to Wall is a Pennsylvania company in the bu siness of

general contracting, construction, remodeling and renovation of residential

and commercial buildings. See Trial Court Opinion, 10/14/21, at 3. Capen

_________________ __________ ______ ____ _______

* Former Justice specially assigned to the Superior Court.

1 We have corrected the caption to include Abruzzi

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- 2

-

and Wambold are the co

- owners and only employees of Wall to Wall. Id. In

April 2017, a fabricator providing services to Wall to Wall introduced Wambold

and Capen to Appellants

. Id. “ Originally, DiGuglielmo on behalf of Abruzzi

agreed to fabricate and install granite count ertops for Wall to Wall. ” Id. at 4.

After Abruzzi completed the installation, Wambold, on behalf of Wall to Wall,

sent more jobs to Abruzzi. Id.

As the r elationship between Appellants and Defendants progressed,

Capen and Wambold planned to rent offi ce space at Abruzzi ’ s building. Id.

However, a fire damaged the Abruzzi building. Id. Several companies

provided remediation services for smoke and water damage , including Wall to

Wall and a company owned by Wambold, Wambold Cleaning. Id. The scope

and cost of the work “ was determined by an oral agreement between Capen,

Wambold and DiGuglielmo. ” Id. at 5.

P roblems subsequently developed relating to the documentation and

payment of Appellants ’ invoices. Id. at 5

- 6. T he trial court explained,

“ [b]eginning in May, as the number of jobs increased, so, to o , did the amount

of debt Wall to Wall owed to [Appellants]. Wambold testified that he and

Capen specifically explained to DiGugliel mo that when Wall to Wall got paid,

[Appellants] got paid. ” Id. at 6.

In June 2017 , Appellants orally agreed to the continuous contract with

Defendants

. Id. at 7. As part of the contract, the parties signed a secured

promissory note (promissory note) drafted by Appellants. Id. Under theJ

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- 3

-

promissory note, Capen and Wambold agreed to pay DiGuglielmo the principal

sum of $40,545.00

, for outstanding labor and m aterials provided at all the job

sites. Id. (citing Promissory Note, 6/14/17). The promissory note provided

“ time is of the essence, ” but did not include a due date for the payment. Id.

(citing Promissory Note, 6/14/17, at 3, Section 8, Trial Exhibit P

- 3). The

promissory note charged 1.5 percent (1.5%) interest and reasonable counsel

fees. Id. (citing Promissory Note , 6/14/17 at Section 2, 10, Trial Exhibit P

3). The continuous contract and the invoices underlying the debt were not

referenced in or at tached to the promissory note. Id.

In June and July 2017, Defendants paid the invoices provided by

Appellants and issued payments on the promissory note. Id. at 8

- 9. On J uly

6, 2017, Appellants sent two emails demanding that the outstanding balance

be paid that day, or the account would go to collection. Id. at 9.

On September 15, 2017, Appellants filed a complaint against

Defendants asserting causes of action for breach of contract, breach of the

promissory note, violation of the Pennsylvania Contractor and Subcontractor

Payment Act (CASPA )

, 2 and unjust enrichment. Appellants sought $43,794.00

plus interest, costs, and counsel fees. Appellants subsequently filed an

amended complaint listing specific amounts due for work performed at seven

job sites, totaling $ 43,794.00 . Amended Complaint, 11/3/ 17, ¶ ¶ 13, 15, 18

.

_________________ __________ ______ ____ _______

2 See 73 P.S. §§ 501

- 516

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-

Defendants filed an answer and counterclaim. Answer and Counterclaim,

3/18/20. Defendants asserted Appellants had “ failed to meet required

deadlines per the construction schedule as well as provide industry standard

quality control of the installation and materials. ” Id. ¶ 21. D efendants

challenge d the amounts claimed by Appellants and alleged Appellants “ used

unsound accounting practices. ” Id. ¶ 22. Defendants also asserted the

defense of payment. See id. ¶¶ 64

- 72. Defendants ’ counterclaim averred

(1) Appellants failed to pa y Wall to Wall for fire remediation work; (2)

Appellants were unjustly enriched by Wall to Wall’s remediation work; and (3)

Wall to Wall incurred financial sanctions resulting from delays caused by

Appellants’ deficient work and materials. See generally

, id. ¶¶ 90

- 114.

The matter proceeded to a bench trial, after which the trial court entered

verdicts against Appellants on all of their causes of action

. Decision, 3/18/21,

¶¶ 98, 109, 116, 122, 129. The trial court also found against Defendants on

their counterclaim for breach of contract. Id. ¶ 116. However, t he trial court

awarded Defendants $33,696.00 on their counterclaim for unjust enrichment.

Id. ¶ ¶ 135

- 36. The trial court denied all claims for counsel fees. Id

. ¶ 136.

Appellants timely filed post

- trial motions for a new trial and judgment

notwithstanding the verdict. Post

- Trial Motions, 3/19/21. On June 9, 2021,

the trial court entered an order denying Appellants’ post

- trial motions

.

Appellant s timely appe al ed . Appellants and the trial court have complied with

Pa.R.A.P. 1925.J

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- 5

-

Appellants present the following issues for our review:

1. Whether the trial court abused its discretion and made an error

of law concluding that the verdict was not contrary to the e vidence

presented at trial in connection with plaintiff Anthony

DiGuglielmo ’ s breach of contract claim set forth against

defendants Christopher R. Capen and Charles T. Wambold

appearing in Counts I and II of the plaintiffs ’ Amended Complaint?

2. Whether the trial court abused its discretion and made an error

of law concluding that the verdict was not contrary to the evidence

presented at trial in connection with plaintiff Abruzzi Stone &

Flooring, LLC ’ s breach of contract c laim set forth against

defendant Wall to Wall Custom Design Management appearing in

Count III of the plaintiffs ’ Amended Complaint?

3

. Whether the trial court abused its discretion and made an error

of law concluding that the verdict was not contrary to the evidence

presented at trial in connection with plaintiff Abruzzi Stone &

Flooring, LLC ’ s unjust enrichment claim set forth against

d efendant Wall to Wall Custom Design Management appearing in

Count V of the plaintiffs ’ Amended Complaint?

4

. Whether the trial court abused its discretion and made an error

of law concluding that the verdict was not contrary to the evidence

presented at t rial in connection with plaintiff Abruzzi Stone &

Flooring, LLC ’ s claim that defendant Wall to Wall Custom Design

Management violated Section 507 of the Pennsylvania Contractor

and Subcontractor Payment Act, 73 P. S. § 501, et seq. appearing

in Count IV of the plaintiffs ’ Amended Complaint?

5. Whether the trial court abused its discretion and made an error

of law concluding that the verdict was not contrary to the evidence

presented at trial in connection with defendant Wall to Wall

Custom Design Managemen t ’ s counterclaim asserted against

plaintiff, Abruzzi Stone & Flooring, LLC, and entering judgment in

favor of defendant Wall to Wall Custom Design Management and

against plaintiff, Abruzzi Stone & Flooring, LLC in the amount

equal to $33,696.00?J

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- 6

-

Appellant s ’ Brief at 4

- 5 (issues renumbered)

. 3

Our standard of review in non

- jury cases is limited to:

a determination of whether the findings of the trial court are

supported by competent evidence and whether the trial court

committed error in the application of law. Findings of the trial

judge in a non

- jury case must be given the same weight and effect

o n appeal as a verdict of a jury and will not be disturbed on appeal

absent error of law or abuse of discretion

....

Kowalski v. TOA PA V, L.P. , 206 A.3d 1148, 1159 (Pa. Super. 2019)

(citation omitted). This Court respect s a trial court ’ s findings

regarding credibility and weight of the evidence “ unless the appellant can

show that the court ’ s determination was manifestly erroneous, arbitrary and

capricious or flagrantly contrary to the evidence. ” Id. at 1160 (citation

omitted).

Appellant s challenge the weight of the evidence. 4 See Appellants’ Brief

at 4

- 5.

Appellate review of a weight claim is a review of the [trial court ’ s]

exercise of discretion, not of the underlying question of whether

the verdict is against the weight of the evidence. Because the trial

_________________ __________ ______ ____ _______

3 Although Appellants ’ statement of questions lists five issues, their argument

section sets forth one issue, comprised of 13 subsections

, in contravention of

Pa.R. A .P. 2119(a) ( “ The argument shall be divided into as many parts as there

are questions to be argued[.] ” ).

4 T he trial court correctly concluded Appellant s waived any challenge to the

sufficiency of the evidence by failing to present a motion for a directed verdict.

See Trial Court Opinion, 10/14/21, at 21; see also Wag

- Myr Woodlands

Homeowners Assoc. by Morgan v. Guiswite

, 197 A.3d 1243, 1250 n.10

(Pa. Super. 2018 ) ( “ to preserve the right to request judgment notwithstanding

the verdict (JNOV), a party must first

... move for a directed verdict or

compulsory non

- suit. ” ).J

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-

judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration

to the findings and reasons advanced by the trial judge when

reviewing a trial court ’ s d etermination that the verdict is against

the weight of the evidence. One of the least assailable reasons

for granting or denying a new trial is the lower court ’ s conviction

that the verdict was or was not against the weight of the evidence

and that a new trial should be granted in the interest of justice.

In re Estate of Smaling

, 80 A.3d 485, 490 (Pa. Super. 2013) ( citation

omitted).

We address Appellants’ first and second issues together. Appellants

claim the verdicts are against the weight of the evidence as to their breach of

contracts actions. Appellants’ Brief at 4. Appellants argue that, at the time

they executed the promissor y note, Defendants owed Appellants $40,545.00,

the amount reflected in the promissory note. Id. at 17. Appellants claim the

promissory note “ serves as an admission by [ Defendants ] and convincing

proof that a principal outstanding debt structure equal to $40,545.00 was

accrued by [Defendants]

... and remained unpaid. ” Id.

Appellants also argue Defendants owe $1,514 .00 for Invoice

# 062317AA

, and $1,549.00 for Invoice # 062317B. Id. at 19. Appellants

therefore claim an aggregate unpaid debt of $43,608.00 based on the invoices

and promissory note

. Id. In addition, Appellants assert Defendants owe

$10,018.86 in interest on the unpaid debt , resulting in a bala nce due of

$53,626.86. Id. at 20. Appellants acknowledge Defendants ’ payments

through Wall to Wall check numbers 1067 ($3,900.00), 1072 ($7,617.00),

and 1076 ($9

, 156.00). Id. at 22

- 24. A s a result, Appellants claim a reducedJ

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- 8

-

unpaid balance due of $32,9 53.86. Id. at 24. Appellants rely on admissions

by C apen and Wambold that the invoices presented at trial represented “ a

request for the payment for services performed and materials supplied ” by

Appellants to Defendants

. Id. at 25.

As this Court has explained:

“ Three elements are necessary to plead properly a cause of action

for breach of contract : ‘ [(1)] the existence of a contract, including

its essential terms, (2) a breach of a duty imposed by the contract

and (3) resultant damages. ’” Williams v. Nationwide Mut. Ins.

Co.

, 750 A.2d 881, 884 (Pa. Super. 2000) (citation omitted).

... A

party claiming breach must establish its elements by a

preponderance of the evidence. Snyder v. Gravell

, 446 Pa.

Super. 124, 666 A.2d 341, 343 (Pa. Super. 1995).

Dis cover Bank v. Booker , 259 A.3d 493, 495

- 96 (Pa. Super. 2021).

Instantly , the trial court rejected Appellants ’ breach of contract claims

,

finding:

On June 22, 2017, Wall to Wall submitted check number 1068 to

DiGuglielmo in the amount of $8

, 057.00, dated June 23, 2017,

and referencing ... invoice numbers 060217AA and 060117AC.

([N.T., 12/10/20], at 40, 205; ... Trial Exhibit P

- 26). Although

Capen and W ambold asked DiGuglielmo to hold the postdated

check for one day, Abruzzi presented the check for payment that

same day, resulting in Wall to Wall having insufficient funds in

their bank account to cover the check. ( Id. at 40, 44, 45, 169

- 70 ...).

When DiGuglielmo summoned Capen and Wambold to

complain about the bounced check, Capen and Wambold drove to

a TD Bank ... to withdraw $8,057.00 and $6,500.00 in cash, ... and

paid DiGuglielmo in cash. ([ Id. ] at 125, 170

- 171; bank

Withdrawal Receipt, ... Trial Exhibi ts D

- 3, D

- 6). DiGuglielmo

denied receiving cash from Capen or Wambold. (N.T., at 217

- 18).J

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- 9

-

Trial Court Opinion, 10/14/21, at 8

- 9. The trial court ’ s findings are supported

in the record.

The trial court further found Appella nts applied Defendants ’ paym ent of

$20,673 (check numbers 106 7, 1072, and 1076 ) to the amount owed under

the promissory note. Trial Court Opinion, 10/14/21, at 9 (citing N.T.,

12/10/20, at 45

- 46; Trial Exhibits P

- 25, P

- 28, P

- 29). Notwithstanding,

Appellants “ presented duplicate inv oices for different work with different

amounts due, which DiGuglielmo could not explain. ” I d. ; see also N.T.,

10/12/20, at 42

- 43. T he trial court observed that DiGuglielmo ’ s wife endorsed

Defendants ’ check number 1066 ($1,400.00), dated June 15, 2017

. Id. at 9

(citing N.T., 12/10/20, at 38

- 39, 180; Trial Exhibits D

- 6, P

- 24). DiGuglielmo

could not explain where the $1,400.00 was allocated

. Id. ( citing N.T.,

12/10/20, at 38

- 39, 180).

The record con firms that, i n separate emails dated January 6, 2017,

Appellants claimed an outstanding balance of $41,903.00 and $44,903.00

,

respectively . N.T., 12/10/22, at 104, 106, 109, 113; Trial Exhibits D

- 1, D

- 2.

However, the trial court observed

, “ [t]he payments by [Defendants ’ ] checks

to [Appellants] totaling $20,673.00 and the check for $1,400.00 payable to

cash had been made on or before July 6, 2017, the day of the email

exchanges. ” Trial Court Opinion, 10/14/21, at 10. Although Capen and

Wambold re quested clarification of the invoices or updated invoices,

Appellants failed to respond. Id. The trial court credited the testimony ofJ

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-

Capen and Wambold regarding their multiple requests for clarifications and

updated invoices, finding that “ DiGuglielmo refused to provide either. ” N.T.,

12/10/22, ¶ 107.

Ultimately, th e trial court found no breach of contract by Defendants

because Defendants “ timely submitted checks and, on occasion, cash, to

satisfy the invoices presented to them ” by Appellants. Id. ¶ 106. As the trial

court explained :

The evidence showed that Capen and Wambold had paid the

invoices provided by Abruzzi in full with Wall to Wall checks or

cash with limited exception and had requested clarification or were

waiting for updated invoices f or those few invoices not paid in full.

Assuming, arguendo , that [Defendants] owed approximately

$40,545.00 on June 15, 2017, the evidence presented at trial

demonstrates by DiGuglielmo ’ s admission that three (3) payments

had been made before filing the complaint as follows:

Payment of $39,000.00 on June 20, 2017

Payment of $7,617.00 on June 28, 2017

Payment of $9,156.00 on July 7, 2017

Additionally, Defendants presented evidence of the following

payments at trial:

Invoice No. Amount Check No. Payment Date

060117AC $3,891.00 Cash $14,557.00 6/27/17

060217AA 5,212.00

060217AA 5,611.00

060117AH 1,668.00 1072 1,668.00 6/28/17

060117AE 4,370.00 1060 4,370.00 6/28/22

060117AF 1,278. 00 1060 1,278.00 6/28/22

062317AA 1,514.00 1066

[FN1] 1,400.00 6/28/22

062317AB 1,519.00 n/a

[FN2]J

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- 11

-

060117AI 2,525.00 1060

[FN3] 1,371.00

TOTAL 27,546.00 24,644.00

Because [Defendants] had paid the amounts invoiced as detailed

in the parties ’ pleadings in a timely manner, [Defendants] did not

breach the promissory note.

The evidence presented demonstrates that [Defendants] had

already issued payment for the amounts sought in [Appellants ’ ]

complaint and amended complaint before the first compl aint was

filed on September 15, 2017.

[FN1] This amount was a deposit with the expectation that

[Appellants] would generate an invoice after installation.

[Appellants ’ ] invoice generated after installation did not account

for the $1,400 deposit check made out to cash.

[FN2] Invoice dated July 3, 2017, was disputed; clarification

requested but not received.

[FN3] Invoice total was disputed; clarification requested but not

received.

Trial Court Opinion, 10/14/21, at 16 (footnotes in original)

. T he above

findings support the trial court’s determ ination that Defendants did not breach

the continuing contract. See id.

We are not “ empowered to merely substitute [ our ] opinion concerning

the weight of the evidence for that of the trial judge [.]” Zeffiro v. Gillen

,

788 A.2d 1009, 1012 (Pa. Super. 2001) (citation omitted)

. Because the trial

court’s findings are not “ manifestly erroneous, arbitrary and capricious or

flagrantly contrary to the evidence ,” Gemini Equipment Co. v. PennsyJ

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- 12

-

Supply, Inc

., 595 A.2d 1211, 1215 (Pa. Super. 1991)

, we can not grant

Appellants relief on their first two issues

.

In their third issue

, Appellants challenge the trial court’s verdict on their

unjust enrichment claim . Appellants ’ Brief at 5

. Appellants offer no support

for t heir claim in the argument section of their brief , as required by Pa.R.A.P.

2119. Accordingly, this undeveloped issue is waived. 5 See Bombar v. W.

Am. Ins. Co. , 932 A.2d 78, 96 (Pa. Super. 2007) (deeming an issue waived

where appellant failed to identify any authority supporting its claim).

In their fourth issue, Appellants challenge the weight of the evidence

underlying the trial court’s rejection of the ir CASPA claim . Appell ants’ Brief at

4. Again, Appellants offer no legal argument. The issue is waived. See

Bombar

, supra

.

Waiver notwithstanding , we recognize :

Each of the various remedies afforded by the [CASPA] statute is

subject to specified requirements of proof. Under Section 5, late

payment may entitle a contractor to interest at a rate of 1% per

month (an annual 12% interest rate), but only if the payment was

made at least seven days after delivery of the invoice. 73 P.S.

§ 505; see John B. Conomos, Inc. v. Sun Co., Inc. (R&M)

, 831 A.2d 696, 710 (Pa. Super. 2003), appeal denied

, 577 Pa.

697, 845 A.2d 818 (Pa. 2004). Under Section 12(a), a claimant

may recover an additional penalty of 1% per month (another 12%

per year) if the payment was withheld wrongfully, but such

_________________ __________ ______ ____ _______

5 The unjust enrichment claim lacks merit. Appellants ’ claim s are premised

on Defendants ’ nonpayment under the continuing contract and the promissory

note. “[ T ] he doctrine of unjust enrichment is inapplicable when the

relationship between parties is founded upon a written agreement or express

contract. ” Wil

son v. Parker , 227 A.3d 343, 353 (Pa. Super. 2020) (citation

omitted).J

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-

recovery requires a determination that the owner did not withhold

payment in good faith. 73 P.S. § 512(a); see, e.g., Waller Corp.

v. Warren Plaza, Inc.

, 95 A.3d 313, 319 (Pa. Super.

2014); Ruthrauff, Inc. v. Ravin, Inc.

, 914 A.2d 880, 891 (Pa.

Super

. 2006), appeal denied

, 599 Pa. 711, 962 A.2d 1197 (Pa.

2008). Under Section 12(b), the claimant may also recover

attorneys ’ fees and expenses, but only if the claimant is a

“ substantially prevailing party in any proceeding to recover any

payment under th is act. ” 73 P.S. § 512(b); see, e.g., Imperial

Excavating & Paving, LLC v. Rizzetto Constr. Mgmt.

, 935

A.2d 557, 564 (Pa. Super. 2007); Zavatchen v. RHF Holdings,

Inc.

, 907 A.2d 607, 609 (Pa. Super. 2006), appeal denied

, 591

Pa. 685, 917 A.2d 315 (Pa. 200 7).

United Envtl. Grp., Inc. v. GKK McKnight, Ltd. P ’ ship

, 176 A.3d 946, 960

(Pa. Super. 2017).

The record confirms Appellants failed to establish a breach of contract,

wrongfully withheld payments, or that they “ substantially prevailed ” in their

claims against Defendants. See id. Accordingly, t he trial court properly

exercised its discretion in rejecting Appellants ’ challenge to the weight of the

e vidence as to their CASPA claim. See id.

In their fifth i ssue, Appellants challenge the trial court’s verdict in favor

of Defendants on their counterclaim of unjust enrichment. Appellants ’ Brief

at 26. Appellants claim they performed most of the fire remediation services

themselves

. Id. Appellant s further allege that Defendants submitted inflated

claims to Appellants ’ insurance underwriter. Id. at 27. According to

Appellants, Defendants ’ inflated cla ims resulted in a 1.5

- year delay “ of the

partial payment of insurance benefits, ” which negatively impacted Appellants ’

business from “walk

- in” customers visiting their showroom. Id.J

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- 14

-

T he trial court deemed the issue waived, based on Appellants ’ failur e to

raise it in post

- trial motions. Trial Court Opinion, 10/14/21, at 27

- 28. The

trial court reasoned:

In Appellants’ supplemental memorandum of law in support of

their motion for post

- trial relief fled on April 14, 2021, they raised

for the first time , and without leave of court, an argument

challenging the amount of this court’s award on [Defendants’]

cou nterclaim [for unjust enrichment]. Appellants do not contest

the court’s determination that an award on the counterclaim was

appropriate. Appellants have waived this issue.

Id. We agree. See Bensinger v. Univ. of Pittsburgh Med. Ctr. , 98 A.3d

672, 685 (Pa. Super. 2014) (recognizing that inclusion of an issue in a brief

in support of a post

- trial motion is insufficient to preserve the issue under

Pa.R.C.P. 227 (Post Trial Relief) )

. Because Appellants failed to timely raise

this issue in their post

- tria l motion, it is waived. See id.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2022