J-S04017-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

ANTHONY DIGUGLIELMO, ET AL. 

Appellant

v.

CHRISTOPHER R. CAPEN, ET AL.

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 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 (DiGuglielmo) 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 business 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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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 countertops 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 relationship between Appellants and Defendants progressed, 

Capen and Wambold planned to rent office 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. 

Problems subsequently developed relating to the documentation and 

payment of Appellants’ invoices. Id. at 5-6. The trial court explained, 

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

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

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

sum of $40,545.00, for outstanding labor and materials 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 P3). The continuous contract and the invoices underlying the debt were not 

referenced in or attached 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 July 

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. Defendants 

challenged 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 pay 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, the 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. 

Appellants timely appealed. Appellants and the trial court have complied with 

Pa.R.A.P. 1925.
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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 evidence 

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 claim 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 

defendant 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 trial 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 Management’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?
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Appellants’ 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

on 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 respects 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). 

Appellants 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

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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 The trial court correctly concluded Appellants 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.”). 
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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 determination 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 promissory 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 balance 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. As a result, Appellants claim a reduced 
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unpaid balance due of $32,953.86. Id. at 24. Appellants rely on admissions 

by Capen 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).

Discover 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 Wambold 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 Exhibits D-3, D-6). DiGuglielmo 

denied receiving cash from Capen or Wambold. (N.T., at 217-18).
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Trial Court Opinion, 10/14/21, at 8-9. The trial court’s findings are supported 

in the record. 

The trial court further found Appellants applied Defendants’ payment of 

$20,673 (check numbers 1067, 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 invoices for different work with different 

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

10/12/20, at 42-43. The 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 confirms that, in 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 requested clarification of the invoices or updated invoices, 

Appellants failed to respond. Id. The trial court credited the testimony of 
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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, the 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 for 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]
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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 complaint 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). The above 

findings support the trial court’s determination 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. Pennsy
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Supply, Inc., 595 A.2d 1211, 1215 (Pa. Super. 1991), we cannot 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 their 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 their CASPA claim. Appellants’ 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’ claims 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.” Wilson v. Parker, 227 A.3d 343, 353 (Pa. Super. 2020) (citation 

omitted).
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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 this 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. 2007).

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, the trial court properly 

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

evidence as to their CASPA claim. See id.

In their fifth issue, 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. Appellants further allege that Defendants submitted inflated 

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

Appellants, Defendants’ inflated claims 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. 
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The trial court deemed the issue waived, based on Appellants’ failure 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’] 

counterclaim [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-trial motion, it is waived. See id.

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/7/2022