J-A09019-15

2015 PA Super 92

KOLLER CONCRETE, INC., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

TUBE CITY IMS, LLC, :

:

Appellant : No. 2028 EDA 2014

Appeal from the Judgment entered June 25, 2014,

Court of Common Pleas, Northampton County,

Civil Division at No. C-0048-CV-2011-00629

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.: FILED APRIL 21, 2015

Tube City, LLC (“Tube City”) appeals from the judgment entered in the

amount of $34,7138.39 for Appellee, Koller Concrete, Inc. (“Koller”). 

Following our review, we affirm. 

The basic facts underlying this appeal are as follows. Koller produces 

concrete for contractors to use in commercial and residential projects.1 

Koller blends concrete for its customers to meet the specific requirements of 

each particular job. In 1995, Koller began to purchase a particular cement, 

Waycem, from Tube City for use in its concrete mixtures. Koller found that 

Waycem added strength to its concrete mixtures and therefore favored the 

product. This product appealed to Koller because Waycem was made with 

ground granulated blast-furnace slag, which contributed to this increased 

 

1 Concrete is a mixture of multiple components, one of which is cement.
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strength. Tube City always represented that Waycem was made with 

ground granulated blast-furnace slag and that it met the specifications of the 

industry’s standard for ground granulated blast-furnace slag, C989. 

In early 2006, Koller began to receive complaints on a number of 

projects, all of which used concrete that contained Waycem.2 William 

Lambert (“Lambert”), a long-time employee and technician for Koller, 

responded to these complaints by visiting the jobsites to inspect the 

concrete. He observed severe cracking and other defects that he had not 

previously seen occur with Koller concrete. In February 2007, Lambert had 

samples of the concrete taken from one project, the Tobyhanna Army Depot 

project, for petrographic analysis.3 According to Koller, the analyses of 

these core samples revealed that they contained no ground granulated blastfurnace slag. Koller eventually became aware that the plant from which 

Tube City received the components to create Waycem closed on February 

17, 2006. Based on all of this information, Koller came to suspect that in 

2006, Tube City sold it Waycem that was made with air-cooled slag instead 

of ground granulated blast-furnace slag. Lambert confronted Tube City with 

these suspicions. Tube City admitted that it had experimented internally 

 

2 At issue in this appeal are five particular projects. Although Koller received 

complaints about these projects at various times between March 2006 and 

March 2009, Koller supplied the concrete for all of these projects in 2006. 

3

In 2009, Koller also sent samples from the Simon project for petrographic 

analysis. In both instances, the samples were taken by a method called 

“coring,” in which cylinders were bored into the concrete at multiple points. 
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with making Waycem with air-cooled slag, but denied selling any product 

containing air-cooled slag. 

On March 13, 2009, Koller filed a complaint against Tube City raising 

claims of breach of contract, unjust enrichment, detrimental reliance, breach 

of express warranties, breach of the implied warranty of merchantability, 

breach of the implied warranty of fitness for particular purpose, fraud, 

negligent misrepresentation, violations of the Unfair Trade Practices and 

Consumer Protection Law (“UTPCPL”), and sought attorneys’ fees and 

punitive damages. A jury trial commenced on February 10, 2014. At the 

close of the evidence, the trial court granted Tube City’s motion for nonsuit 

on Koller’s UTPCPL, attorneys’ fees and punitive damages claims. The jury 

returned a verdict in Koller’s favor on the remaining counts and awarded it 

damages in the amount of $347,138.19. Tube City filed timely post-trial 

motions, seeking JNOV, a new trial, or remittitur on the amount of the 

verdict. Following argument, the trial court denied these motions. This 

appeal followed.4

Tube City presents the following issues for our review:

1. Whether the [trial] court erred in rendering 

evidentiary rulings that resulted in bias to [Tube 

City]?

 

4 The trial court did not author an opinion addressing the issues Tube City 

raised on appeal, electing to rely on its opinion disposing of Tube City’s posttrial motion. See Pennsylvania Rule of Appellate Procedure 1925(a) 

Statement, 7/28/14. 
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2. Whether the trial court erred in failing to enter a 

directed verdict in favor of [Tube City] and failing 

to strike [Koller’s] claims where [Koller] failed to 

prove the required elements of its claims and 

where a new trial is required in the interest of 

justice?

3. Whether the trial court erred in precluding 

disclosure of certain documents in [Koller’s] 

expert’s file under the guise of the attorney[-

]client privilege? 

Tube City’s Brief at 4. 

Tube City first challenges multiple evidentiary rulings made by the trial 

court both prior to and during trial. “[I]t is well settled that the admissibility 

of evidence is a determination left to the sound discretion of the trial court, 

and it will not be overturned absent an abuse of discretion or misapplication 

of law.” Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super. 2011) (quoting 

Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010)). For a 

ruling on the admissibility of evidence to constitute reversible error, it must 

have been harmful or prejudicial to the complaining party. Id. 

Tube City begins by challenging the trial court’s denial of its motion to 

exclude Koller’s core samples because Koller failed to establish a credible 

and complete chain of custody. Tube City’s Brief at 26. The record reveals 

that prior to trial, Tube City sought the exclusion of the core samples on this 

basis. After hearing testimony, the trial court concluded that Koller had 

provided sufficient evidence to establish a chain of custody and “determined 

that any gaps in the chain were matters for the jury, going to the weight, 
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and not the admissibility[,] of the evidence.” Trial Court Order, 6/25/14, at 

5. We can find no abuse of discretion in this decision. 

“To satisfy the requirement of authenticating or identifying an item of 

evidence, the proponent must produce evidence sufficient to support a 

finding that the item is what the proponent claims it is.” Pa.R.E. 901(a). 

Tangible evidence is authenticated properly by the establishment, through 

direct or circumstantial evidence, of a reasonable inference that the identity 

and condition of the item remained unimpaired until it was presented at trial. 

See Commonwealth v. Judge, 648 A.2d 1222, 1224 (Pa. Super. 1994). 

One way of creating this inference is by establishing a chain of custody of 

the item. 

Chain of custody is circumstantial authentication that 

accounts for the thereabouts of physical evidence 

prior to trial. See Commonwealth v. Hudson, [] 

414 A.2d 1381 ([Pa.] 1980); [] Judge, [] 648 A.2d 

[at] 1222 [] (chain of custody was adequate for 

blood alcohol result). A truly complete chain of 

custody is not necessary for the admission of 

tangible evidence. Every individual who came in 

contact with the evidence does not have to testify, 

and every minor discrepancy does not have to be 

explained. Commonwealth v. Snyder, [] 385 A.2d 

588 ([Pa. Super.] 1978); Commonwealth v. Miller, 

[] 371 A.2d 1362 ([Pa. Super.] 1977) (slight 

misdescription on property receipt does not bar 

admission). Every hypothetical possibility of 

tampering does not have to be eliminated. Snyder, 

[] 385 A.2d [at] 588. It is not necessary to prove the 

sanctity of an exhibit beyond a moral certainty. 

Commonwealth v. Herman, 431 A.2d 1019 

(Pa.Super. 1981). Physical evidence can be admitted 
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with gaps in the chain of custody. Commonwealth 

v. Bolden, [] 406 A.2d 333 ([Pa.] 1979).

1A Pa. Admissibility of Evidence T4 (3d ed.)

At the hearing on Tube City’s motion, Lambert testified that on 

February 27, 2007, he took six core samples from the Tobyhanna site with 

the assistance of two technicians from Certified Testing Laboratories (“CTL”). 

N.T., 2/10/14, at 23-25. The CTL technicians took the samples back to their 

laboratory. Id. at 25. CTL tested two of the cores, sent two cores to the 

Army Corps of Engineers, and gave two samples back to Lambert. Id. at 

27. Lambert sent one of those cores to Grace Construction Products 

(“Grace”) for petrographic analysis and kept the remaining core, which was 

labeled “S6” in his office. Id. at 27-28. Approximately three years after S6 

was created, Lambert had S6 cut in half and he gave half to Grace and half 

to Koller’s expert, Dr. Ozol. Id. at 31. Between the day in 2007 when CTL 

gave him S6 and the day in 2010 when Lambert had S6 halved, the sample 

sat untouched in Lambert’s office. Id. at 31. Lambert also testified that he 

took nine core samples from the Simon project in March 2009, and indicated 

that he sent them directly to CTL. Id. at 37-38. CTL subsequently tested 

some of the samples and issued a report detailing the results thereof. Id. at 

40-41. CTL returned some of the Simon project samples to Lambert, who 

then sent them to Grace and to Dr. Ozol. Id. at 41. 
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Tube City argues that Lambert’s testimony did not establish an 

adequate chain of custody of the core samples. Tube City’s Brief at 28-30. 

Yet, in making its argument, Tube City concedes that physical evidence may 

be admitted despite gaps in testimony establishing a chain of custody and 

that gaps in a chain of custody go to the weight of the evidence, as opposed 

to its admissibility. Tube City’s Brief at 28-29 (citing Commonwealth v. 

Royster, 372 A.2d 1194 (Pa. 1977); Broadus v. Unemployment Comp. 

Bd. of Review, 721 A.2d 70 (Pa. Commw. 1998)). Tube City posits that 

the error here was that the testimony offered to establish the chain of 

custody was not credible. Id. at 30. This argument cannot provide relief. 

Credibility determinations are the sole province of the jury, and this Court, 

as an appellate court, cannot disturb a jury’s credibility determinations. 

Vattimo v. Eaborn Truck Serv., Inc., 777 A.2d 1163, 1165 (Pa. Super. 

2001). 

Tube City next challenges the trial court’s handling of its request to

strike Lambert’s testimony on the basis that he violated a sequestration 

order. Tube City’s Brief at 30. As background, we note that prior to the 

testimony of Koller’s owner, Dale Koller (“Mr. Koller”), Tube City moved for 

Lambert’s sequestration because they were both fact witness. N.T., 

2/10/14, at 116. Koller’s counsel opposed the motion, arguing that 

Lambert, although not the corporate designee, was important to Koller’s trial 

strategy and he needed to be present. Id. at 116-17. The trial court 
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granted Tube City’s motion and ordered Lambert to leave the courtroom for 

Mr. Koller’s testimony. Id. at 117. Following a break in Mr. Koller’s 

testimony, counsel for Tube City stated that he had observed Mr. Koller 

speaking with Lambert during the break and requested that the trial court 

exclude Lambert from testifying or give the jury an instruction indicating 

that he violated the sequestration order. Id. at 142-43. At that point, 

counsel for Koller asked the trial court to reconsider its sequestration ruling. 

Id. at 147-49. After argument from the parties and testimony from Lambert 

about what he and Koller discussed, the trial court ruled that although there 

was a technical violation of the sequestration order, there was no “specific 

prejudice” to Tube City. Id. at 159. It lifted the sequestration order and 

further ruled that Lambert could testify “unimpeded” and that it would not 

give a curative instruction regarding a sequestration violation to the jury. 

Id.

Tube City now argues that the trial court erred in reversing its 

sequestration order and failing to give a curative instruction to the jury. 

Tube City’s Brief at 34-36. “[T]he decision to sequester witnesses is left to 

the discretion of the trial judge and will be reversed only for an abuse of 

discretion.” Commonwealth v. Counterman, 719 A.2d 284, 299 (Pa. 

1998). “A request for sequestration of a witness or witnesses should be 

specific and should be supported by some reason or reasons demonstrating 
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that the interests of [j]ustice require it.” Commonwealth v. Kravitz, 161 

A.2d 861, 870 n.7 (Pa. 1960). 

Pennsylvania Rule of Evidence 615 governs sequestration of witnesses 

and provides as follows:

At a party’s request the court may order witnesses 

sequestered so that they cannot learn of other 

witnesses' testimony. Or the court may do so on its 

own. But this rule does not authorize sequestering:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a 

natural person (including the Commonwealth) after 

being designated as the party’s representative by its 

attorney;

(c) a person whose presence a party shows to 

be essential to presenting the party’s claim or 

defense; or

(d) a person authorized by statute or rule to be 

present.

Pa.R.E. 615 (emphasis added). Counsel for Koller informed the trial court 

that Lambert was his “number one connection to the client” and that 

Lambert was “integral to [his] ability to present the case.” N.T., 2/10/14, 

at 153. In light of this representation by Koller’s counsel, we find no abuse 

of discretion in the trial court’s determination that sequestration was not 

authorized by Rule 615.5 Accordingly, we find no error in the trial court’s 

 

5 As the trial court did not err in its decision to deny Tube City’s 

sequestration request, there is no merit to Tube City’s additional complaint 

that the trial court should have given a curative instruction indicating that 
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decision to lift the sequestration order and refuse Tube City’s request for a 

jury instruction. 

Tube City next argues that the trial court erred in “allowing [Koller’s] 

expert to testify without the requisite level of professional certainty.” Tube 

City’s Brief at 36. Tube City does not present any argument relating to 

whether Koller’s expert, Dr. Ozol, testified with the requisite level of 

professional certainty.6 Rather, Tube City argues that (1) the trial court 

failed to determine whether Dr. Ozol was qualified to testify and an expert; 

(2) there was an inadequate factual basis for Dr. Ozol’s opinion; and (3) Dr. 

Ozol did not testify as to causation; i.e., that Tube City’s product caused 

Koller’s problems. Id. at 36, 39. Tube City did not include these issues in 

its Pa.R.A.P. 1925(b) statement of matters complained of on appeal, and so 

they have been waived. Lazarski v. Archdiocese of Philadelphia, 926 

A.2d 459, 463 (Pa. Super. 2007), (holding that issue not raised in a 

statement filed pursuant to Pa.R.A.P. 1925(b) is waived for purposes of 

appeal); Pa.R.A.P. 1925(b)(4)(vii). Accordingly we cannot address them. 

 

Lambert violated a sequestration order. We note for completeness, 

however, that the trial court ruled that Tube City could cross-examine 

Lambert as to his discussions with Mr. Koller about his testimony. N.T., 

2/10/14, at 160. 

6 Dr. Ozol testified with regard to the petrographic analyses of the samples 

taken from the Tobyhanna and Simon projects; more specifically, that these 

samples did not contain ground granulated blast-furnace slag. 
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In the fourth sub-argument to this issue, Tube City contends that the 

trial court erred by permitting Lambert to provide expert testimony as to the 

cause of the concrete’s failure. Tube City’s Brief at 42. Tube City identifies 

five instances of this allegedly improper expert testimony. Id. In its posttrial motion, however, Tube City identified only one instance of such 

allegedly improper testimony, which it has not included in its brief on appeal. 

Brief in Support of Post-Trial Relief, 5/1/14, at 24. It is axiomatic that an 

appellant may not raise a claim for the first time on appeal. Mazlo v. 

Kaufman, 793 A.2d 968, 969 (Pa. Super. 2002); Pa.R.A.P. 302. “Our 

Supreme Court has frequently stressed the necessity of raising claims at the 

earliest opportunity ... so that alleged errors can be corrected promptly, thus 

eliminating the possibility that an appellate court will be required to expend 

time and energy reviewing claims on which no trial ruling has been made.” 

Mazlo, 793 A.2d at 969. Because Tube City did not raise these allegations 

of error before the trial court, we will not consider them now.

We now consider Tube City’s third issue, which also involves an 

evidentiary ruling. When Dr. Ozol, Koller’s expert, took the stand to testify, 

he took his file to the stand with him. During cross-examination, counsel for 

Tube City asked to review his file. N.T., 2/14/14, at 53. Koller asserted the 

right to first inspect the file to determine whether it contained any privileged 

communications. Id. at 57. The trial court permitted this, and Koller 

identified four documents: three emails from Koller’s counsel to Dr. Ozol 
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and one memo from Lambert to Koller’s counsel discussing Tube City’s 

expert report.7 Id. at 58-59. Koller sought to have these documents 

excluded. The trial court reviewed the documents and agreed. Id. at 60. It 

explained its reasoning as follows:

In determining that the documents were privileged, 

the [c]ourt reviewed them and found them to be 

excludable, some as communications between 

counsel and the expert witness, and some as 

communications between counsel and Mr. Lambert in 

preparation for trial. N.T. Vol. VI, 58:8-60:9. As to 

the communications between Mr. Lambert and 

counsel, because Lambert is a representative of the 

corporate plaintiff, there can be no question that 

attorney-client privilege applies. As to the 

communications between Dr. Ozol and counsel, we 

point to the recent decision of the Pennsylvania 

Supreme Court in Barrick v. Holy Spirit Hosp. of 

Sisters of Christian Charity, [91 A.3d 680 (Pa. 

2014)]. In Barrick, the Supreme Court of 

Pennsylvania announced a bright-line rule precluding 

discovery of communications between attorneys and 

expert witnesses. Although Barrick was decided 

subsequent to the trial of this matter, it was decided 

purely on long-standing discovery rules. As such, it 

is clear that this [c]ourt properly interpreted those 

rules in withholding communications between 

[Koller’s] counsel and [its] expert witness from 

disclosure to [Tube City]. 

Trial Court Opinion, 6/25/14, at 16-17. 

Presently, Tube City does not argue that the trial court erred in finding 

that the attorney-client privilege applied to these documents. It argues only 

 

7 One email had a laboratory’s analysis of the core samples attached; one 

forwarded correspondence between Lambert and Koller’s counsel; and one 

attached both a different analytical report and correspondence between 

Koller’s counsel and Lambert about the report. 
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that the attorney-client privilege was waived when Dr. Ozol took the stand 

with his file. Tube City’s Brief at 59. Although Tube City raised an issue 

regarding the trial court’s application of the attorney-client privilege in its 

post-trial motion, it did not raise this basis for relief (i.e., that the privilege 

was waived because Dr. Ozol took the stand with these documents) therein. 

As such, it cannot raise it as a basis for relief now on appeal. See 

Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009) 

(“[A] new and different theory of relief may not be successfully advanced for 

the first time on appeal.”); Nogowski v. Alemo-Hammad, 691 A.2d 950, 

955 (Pa. Super. 1997) (“Failure to preserve issues in a post-trial motion 

results in a waiver of that issue on appeal.”).8

We have reached Tube City’s last issue, in which it argues that the trial 

court should have granted its post-trial motion because Koller “failed to 

prove the elements of its claims and a new trial is required in the interest of 

justice.” Tube City’s Brief at 43. Tube City separates its argument on this 

issue into three subsections, which we address seriatim. 

Tube City begins by arguing that the trial court should have entered 

JNOV on Koller’s fraud and negligent misrepresentation claims because 

 

8 Even if this issue had been properly preserved in Tube City’s post-trial 

motion, we note that at trial, Tube City agreed to allow Dr. Ozol to remove 

any attorney-client privileged communications from his file before Tube City 

would inspect it. N.T., 2/14/14, at 59. In light of this concession, Tube City 

could not now prevail on its argument that the attorney-client privilege was 

waived because Dr. Ozol took the stand with these documents in his file. 
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Koller failed to prove the elements of fraud by clear and convincing 

evidence.9 Id. at 43. 

The proper standard of review for an appellate court 

when examining the lower court's refusal to grant a 

judgment n.o.v. is whether, when reading the record 

in the light most favorable to the verdict winner and 

granting that party every favorable inference 

therefrom, there was sufficient competent evidence 

to sustain the verdict. Questions of credibility and 

conflicts in the evidence are for the trial court to 

resolve and the reviewing court should not reweigh 

the evidence. Absent an abuse of discretion, the trial 

court's determination will not be disturbed.

Ferrer v. Trustees of Univ. of Pennsylvania, 825 A.2d 591, 595 (Pa. 

2002) (internal citations omitted). 

JNOV is an extreme remedy, as the trial court “cannot lightly ignore 

the findings of a duly selected jury.” Burton-Lister v. Siegel, Sivitz & 

Lebed Associates, 798 A.2d 231, 236 (Pa. Super. 2002). A motion for 

JNOV challenges the sufficiency of the evidence presented at trial. Rohm & 

Haas Co. v. Cont'l Cas. Co., 732 A.2d 1236, 1248 (Pa. Super. 1999). As 

 

9 Under this subsection, Tube City also argues that the trial court should 

have struck these claims because they were barred by the statute of 

limitations. Tube City’s Brief at 43. This argument does not relate to 

whether Koller adequately established the elements of fraud or negligent 

misrepresentation, but is a completely separate issue. Tube City did not 

include an issue raising the statute of limitations in its statement of 

questions involved, see Tube City’s Brief at 4, and so it has been waived. 

Cobbs v. SEPTA, 985 A.2d 249, 256 (Pa. Super. 2009) (holding that issue 

not explicitly raised in appellant’s statement of the questions involved is 

waived); Pa.R.A.P. 2116(a) (“No question will be considered unless it is 

stated in the statement of questions involved or is fairly suggested 

thereby.”). 
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such, JNOV is only proper where, when viewing the evidence in the light 

most favorable to the verdict winner, the facts are so clear that reasonable 

minds could not disagree that the verdict was improper. Burton-Lister, 

798 A.2d at 236. “JNOV ... may not be employed to invade the province of 

the jury. ... Thus, where the jury has been presented with conflicting 

evidence, a motion for JNOV should be denied.” Rohm & Haas Co., 732 

A.2d at 1248 (internal citations omitted).

Initially, we observe that Tube City presents no argument in support of 

its claim that the trial court should have entered JNOV on the negligent 

misrepresentation count, and so we will not consider it.10 See Owens v. 

Mazzei, 847 A.2d 700, 705-06 (Pa. Super. 2004) (holding that the Superior 

Court will not address an issue presented in the statement of questions 

involved where no corresponding analysis is included in the brief). 

With regard to fraud, Tube City argues that JNOV was appropriate 

because Koller failed to establish that Tube City sold it a product that did not 

contain ground granulated blast-furnace slag. Tube City’s Brief at 45. Tube 

City points to portions of Koller’s witnesses’ testimony that it believes 

favored Tube City and alleges that Koller’s witnesses were not credible. Id.

 

10 It is fairly obvious, however, that a plaintiff is not required to prove fraud 

in order to establish negligent misrepresentation. See Milliken v. Jacono, 

60 A.3d 133, 141 (Pa. Super. 2012) (stating the elements of negligent 

misrepresentation). Thus, even if Tube City had not waived this issue for 

failure to develop an argument in support thereof, it would not have been 

entitled to relief on this claim.
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This argument does not attack the sufficiency of Koller’s evidence, but rather 

the weight the jury should have ascribed to Koller’s evidence. Tube City is 

asking this Court to “invade the province of the jury,” and that is not a basis 

for JNOV. Rohm & Haas Co., 732 A.2d at 1248. 

Next, Tube City argues that the trial court should have struck Koller’s 

breach of contract claim because Koller failed to present sufficient evidence 

to establish a causal connection between Tube City’s product and the 

damages alleged at trial. Tube City’s Brief at 48-49. Yet again, Tube City 

basis this argument on allegations that Koller’s evidence was incredible and 

that the jury should have believed other evidence that was more favorable 

to Tube City. Id. at 49-50.11 These arguments challenge the jury’s 

credibility determinations and findings of fact, not the sufficiency of the 

evidence. This argument is therefore misplaced and affords Tube City no 

relief. 

Tube City further argues that the trial court erred in refusing its 

request to limit damages to the amounts claimed for the Tobyhanna and 

Simon projects, on the basis that Koller only produced core sample evidence 

as to these two projects. Id. Tube City argues that a new trial on damages 

is appropriate because of this error. 

 

11 Specifically, Tube City again points to perceived flaws in the chain of 

custody of a Tobyhanna core sample as well as testimony that errors in the 

mixing of the cement (as opposed to the composition of Waycem) could 

have led to the failure of the concrete. Tube City’s Brief at 49-51. 
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The grant of a new trial is a matter within the 

discretion of the trial court. If the verdict bears a 

reasonable resemblance to the proven damages, it is 

not the function of the court to substitute its 

judgment for the jury’s. Nevertheless, where the 

jury’s verdict is so contrary to the evidence as to 

“shock one's sense of justice” a new trial should be 

awarded.

Rettger v. UPMC Shadyside, 991 A.2d 915, 934 (Pa. Super. 2010) 

(internal citations omitted). 

The trial court explained its rejection of Tube City’s request as follows:

[Koller] alleged damages in the amount of 

[$355,000]. [It was] awarded damages totaling 

[$347,138.39]. Pretrial, [Tube City] made an oral 

motion to limit [Koller’s] recovery to damages 

incurred on the [] Simon and Tobyhanna projects, 

where core samples were taken and evidence was 

presented as to the absence of [ground granulated 

blast-furnace slag]. N.T. Vol. I, 6:16-23. Upon 

consideration, the [c]ourt denied the motion, 

allowing all of the evidence on damages to go to the 

jury for their consideration. N.T. Vol. I, 19:1-7. 

[Koller] presented testimonial and 

documentary evidence that it spent [$277,389.69] 

on the allegedly defective Waycem, which it then 

used in certain projects, incurring damages. In this 

regard, Koller presented testimony and photographs 

as to cracking on what they referred to as the 

“Lusitania Liberty” project, pursuant to which they 

incurred costs amounting to [$2,200] for repairs. 

N.T., Vol. II, 57:18-66:23. Likewise, [Koller] 

presented testimonial evidence of cracking on the 

“Big Creek” project, where [it] incurred costs of 

[$6,438]. N.T., Vol. II 66:25-71:9. As to the Grant 

Homes project, Mr. Lambert presented photographic 

evidence of cracking, and testified that no expense 

was incurred to make repairs on that project. [N.T.] 

Vol. II, 71:11-75:7. [Koller] also presented evidence 

of [$35,000] expended to settle a lawsuit arising out 
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of the problems at Tobyhanna, as well as the 

expense of [$24,948.77] in legal fees associated 

with that litigation. N.T. Vol II, 83:20-85:20, 87:7-

88:19. On the [] Simon project, evidence was 

presented that [Koller] incurred costs in the amount 

of [$9,600]. N.T. [Vol. II] 88:21-92:4. 

This is not a case where damages were 

awarded in the absence of evidence. Rather, [Koller] 

offered direct evidence as to some of [its] alleged 

injuries, and circumstantial evidence as to others. 

While [Koller] did not take core samples of every 

project, the evidence presented was clearly sufficient 

for the jury to award damages upwards of 

[$355,000] and [the] award fell below that amount. 

Accordingly, the verdict does not shock the 

conscious, and shall be permitted to stand. 

Trial Court Opinion, 6/25/14, at 11-12. 

We can find no abuse of discretion in the trial court’s ruling. Tube 

City’s true complaint is that the award is based in part on the circumstantial 

evidence and inferences drawn by the jury, but it provides us with no 

authority that this is impermissible. Koller presented expert testimony that 

the Waycem used in two projects did not contain the ground granulated 

blast-furnace slag, and testimony that three additional projects that used 

Waycem from the same defective batch also failed. The jury was free to

accept this evidence as credible and conclude that the Waycem used in all 

five of these projects caused them to fail, and therefore, caused the 

damages. As the amount of the verdict bears a reasonable relationship to 

the evidence, there was no basis to disturb it. Rettger, 991 A.2d at 934. 
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Lastly, Tube City argues that the trial court erred in denying its motion 

for a mistrial. It argues that it was entitled to a mistrial because the trial 

court made “multiple evidentiary errors” and because “the damages award is 

... too speculative or uncertain.” Tube City’s Brief at 56-57. We have 

considered and rejected Tube City’s claims of evidentiary errors and its claim 

regarding the appropriateness of the verdict. Accordingly, Tube City’s 

argument fails on its premise. 

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015