J. A300 35 /17

NON

- PRECEDENTIAL DECISION

– SEE SUPERIOR COURT I.O.P. 65.37

OVERSEERS, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY :
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

:
v. :
: WALTER ADKINS, III , :
: Appellant :

:

------------------------------------------- :
: WALTER ADKINS, III, :
: Appellant :

:
v. :
: No. 654 WDA 2017 OVERSEERS, LLC, A PENNSYLVANIA LIMITED LIABILITY COMPANY :
:

Appeal from the Judgment Entered April 17, 2017 , in the Court of C ommon Pleas of Allegheny County Civil Division at No

. GD

- 15

- 018939

BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 24, 2018

Appellant, Walter Adkins, III, appeals from the judgment entered

April 17, 2017 by the Court of Common Pleas of Allegheny County. Judgment

was entered on two separate cases involving these parties that were

con solidated on March 1, 2016. After careful review, we affirm.

The trial court provided the following recitation of the facts and

procedural history of this case:J. A300 35 /17

- 2

- On or about March 21, 2013, [appellant’s] property located at 476 1 st Street in Heidelberg, P ennsylvania was severely damaged by fire. [Appellant] maintained property insurance with State Farm and Casualty Company (hereinafter “State Farm”) with the face amount of said policy as $300,000. Based on State Farm’s recommendation, [appellant] origina lly engaged Disaster Restoration Services (“DRS”) to rebuild the structure. Fairly early, during salvage and demolition on the restoration project, [appellant] discharged DRS (on or about May of 2013). DRS received $60,000, mostly for demolition work, le aving $240,000 for completion of the project out of the remaining insurance money.[Footnote 1]

[Footnote 1] Additional monies were later made available to [appellant] by way of a rider attached to the State Farm insurance policy.

Based on the recommendat ion of Jason Adkins, the son of [appellant], Joseph Lilley was contacted and eventually retained by [ appellant ] . At said time, Joseph Lilley was operating and doing business as Overseers, LLC [(“appellee”)]. [Appellant] and [appellee] contracted to rebui ld the structure for a price of $369,542.50.

Other than an initial payment of $71,289.96, which was paid prior to commencement of work by [appellee], the contract was silent as to a payment schedule as to the remaining installments. Over the course of co nstruction, the scope of the project grew but was not reflected by way of additional contracts or change orders. The parties’ additional agreements were never memorialized. At the completion of the project, [appellee] claimed a payment deficiency of $102 ,610, while [appellant] complained that he had overpaid and was still being billed, paying ‘ at least $343,418.96. ’ [Appellant] asserts that [appellee] was paid the $240,000, the original balance from the State Farm policy and an extra $77,000 from State F arm, in addition to $26,000 paid ‘ out of pocket ’ by [appellant ]

.J. A300 35 /17

- 3

- It is [appellee’s] contention that [appellant] requested and authorized extra work and materials in the amount of $58,510. [Appellee] further contends that the total contract price, with extras, amounts to $428,052.

[Appellee] filed a Mechanics Lien Claim at GD 14

- 012420, to recover any and all deficiencies between amounts collected and charged as they related to 4 76 1 st Street. [Appellant] filed a Complaint in Civil action asserting violations of the Home Improvement Consumer Protection Act and Unfair Trade Practices and Consumer Protection [Act], as well as one count of Breach of Contract at the above referenced general docket number.

. . . . This matter was initiated by a claim filed by [appellee] on July 18, 2014. A mechanics lien complaint was later filed by [appellee] on November 19, 2014. [Appellant] filed Preliminary Objections (hereinafter “POs”) to the mechanics lien complaint on December 19, 2014. The Honorable Michael McCarthy sustained [appellant’s] POs, ordering [appellee] to

‘ amend its claim as to labor and materials. ’ An Amended Mechanics Lien Claim was filed on February 2, 2015.

A Complaint in Civil Action was filed by [appellant] on October 27, 2015, alleging that [appellee] violated the Home Improvement Consumer Protection Act and Unfair Trade Practices and Consumer Protection Act (Count I), as well as one count of Breach of Contract (Count I I). By Order dated March 1, 2016, the above [

- ] referenced general docket number (GD: 15

- 018939) was consolidated pursuant to Pa.R.C.P. 213(a) with GD 14

- 10240 as GD 15

- 018939.

[Appellee] filed an answer, new matter and counterclaim on March 3, 2016. [App ellee] assert[s] that the subject property, which is deemedJ. A300 35 /17

- 4

- “commercial” , would not be subject to either the Home Improvement Consumer Protection Act (hereinafter [“]HICPA”) or the Unfair Trade Practices and Consumer Protection Act (hereinafter “UTPCPL”).

[Appellee] further den[ies] the Acts’ protections and application due to the nature of the contract, finding it something other than a “home improvement contract.”

[Appellee] raise[s] counterclaims, at Count I, Breach of Contract, and at Count II, Unjust Enrichment

Quantum Meruit . [Appellee] now seek[s] a deficiency of $102,610.00 in labor and materials alleged to have been provided to [appellant] without fair compensation.

[Appellee] further assert[s] that the parties’ original contract included a compulsory arbitration clause and that this matter should be removed from the Court of Common Pleas and reinstated on the Arbitration Docket.

Following some pretrial discovery mot ions, Judge Folino signed orders dated August 15, 2016, in which the Court placed this matter on [the] January Trial List, noting that there would be no further continuances. Additionally, Judge Folino filed an order granting [appellant’s] Motion for Leav e to Praecipe for a jury trial. [Appellant] filed a demand for [ a ] jury trial on August 19, 2016.

The parties met for a pre

- trial conference in January of 2017. When the parties were unable to resolve this dispute through settlement, this case was assig ned to [the Honorable Michael A. Della Vecchia] for trial. The parties elected to forego a jury, choosing rather to proceed with a non

- jury trial.

On January 11, [2017,] the parties, joined by [Judge Della Vecchia] “viewed” the property before commencing with testimony of five (5) witnesses over the next several days. [Judge Della Vecchia] heard and evaluated the live testimony of Joseph Lilley, theJ. A300 35 /17

- 5

- owner and operator of [appellee]; [appellant], the owner of the subject property; Robert Gelman, a certifi ed real estate appraiser; Jason Adkins, the son of the property owner; and John Stivala, a contractor and co

- owner of JS Construction before rendering [his] decisions.

After evaluating the testimony and evidence and giving this matter serious consideratio n, on January 24, 2017, a non

- jury verdict was entered at GD: 15

- 018939, in favor of [appellee] and against [appellant ] . On that same date, a non

- jury verdict was entered in favor of [appellee] and against [appellant] per the verdict entered at GD 14

- 0124 0.

On February 3, 2017, [appellant] filed a Motion for Post

- Trial Relief [for judgment notwithstanding the verdict (“JNOV”)] . Upon receipt of said motion, [Judge Della Vecchia] authored an Order of Court directing the parties to appear for argument as to same on April 20, 2017, with briefs due one [] week prior. The argument was later rescheduled to April 19, 2017, by Order dated April 3, 2017.

Following a thorough review of the parties’ briefs in addition to argument held as to post

- trial arguments, [Judge Della Vecchia] issued an Order on April 21, 2017 , deny[ing] [appellant’s] Motion for Post

- Trial Relief. Judgment on the Verdict was entered in favor of [appellee] and against [appellant] in the amount of $71,771.29. (Order, 2/2/17).

On May 4, 2017, [appellant] filed a Notice of Appeal. In response thereto, [Judge Della Vecchia] issued an Order dated[] May 16, 2017, directing [appellant ] , th rough counsel, to file a Concise Statement of Matters Complained of on Appeal pursuant to Pa.R.A.P. 1925(b). Said statement was timely filed on June 2, 2017, placing this matter properly before the Superior Court of Pennsylvania.

Trial court opinion, 7/ 2 6 /17 at 1

- 5. The trial court filed an opinion pursuant

to Pa.R.A.P. 1925 (a) on July 25, 2017.J. A300 35 /17

- 6

-

Appellant raises the following issues for our review:

I. Is [a ] ppellant entitled to j udgment as a matter of law ([“JNOV”]) based upon the operation of Pennsylv ania’s Home Improvement Consumer Protection Act, 73 P.S. § 517.1 et seq. , when the proposed contract for home improvement work did not comply with multiple provisions of 517.7(a) and when change orders were not reduced to writing or executed by either part y?

II. Is [a]ppellant entitled to [JNOV] when, even if quantum meruit was applied to this case, [a]ppellant paid to [appellee] one hundred thousand dollars in excess of the value of the benefit conferred upon [a]ppellant , and when [a]ppellant directed [ap pellee] to stop work starting in August of 2013 when [a]ppellant had all but run out of State Farm insurance proceeds?

III. Is [a]ppellant entitled to a new trial when, prior to the commencement of trial, the trial court determined that neither the Home I mprovement Consumer Protection Act nor the Unfair Trade Practices and Consumer Protection Law applied to the instant matter, when the subject property has served as [appellant’s] personal residence and dwelling since 1987?

IV. Is [a]ppellant entitled to a new trial when the trial court permitted opposing counsel two

cross
- examinations of [a]ppellant , but limited [a]ppellant ’s counsel to “two minutes” on

re
- direct examination.

V. Is [a]ppellant entitled to [ JNOV ] when, assuming arguendo there existed a valid and enforceable contract, [appellee was] the first part[y] to commit a material breach, and when any claim for costs associated with change orders was occasioned by [appellee’s] breach of contract, thereby justifying a suspension of performance on [a]ppellant ’s part?J. A300 35 /17

- 7

-

Appellant’s brief at 4

- 5.

I.

In his first issue, appellant contends that the trial court erred when it

denied his motion for JNOV and determined that the contract at issue is not

governed by the HICPA and the UTPCPL. T he trial court determined that the

property at 476 First Street, Heidelberg, Allegheny County, Pennsylvania

(“the property”), “was constructed and used as something other than a

single

- family unit and something other than purely residential.” (Trial court

opinion, 7/2 6 /17 at 11

- 12.)

The standard governing JNOV is as follows:

Our standard of review when considering motions for a directed verdict and [JNOV] are identical. We will reverse a trial court ’ s grant or denial of a judgment notwithstanding the verdict only when we find an abuse of discretion or an error of law that controlled the outcome of the case. Further, the standard of review for an appellate court is the same as that for a trial court.

There are two bases upon which a [JNOV] can be entered[:] one, the movant is entitled to judgment as a matter of law and/or two, the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the m ovant. With the first, the court reviews the record and concludes that, even with all factual inferences decided adverse[ly] to the movant, the law nonetheless requires a verdict in his favor. Whereas with the second, the court reviews the evidentiary re cord and concludes that the evidence was such thatJ. A300 35 /17

- 8

- a verdict for the movant was beyond peradventure.

Janis v. AMP, Inc. , 856 A.2d 140, 143

- 44 (Pa.Super. 2004) (internal quotation marks and citations omitted).

Int’l Diamond Importers, Ltd. v. Singularity Clark, L.P. , 40 A.3d 1261,

1267 (Pa.Super. 2012).

In o rder to determine the applicability of the HICPA, we must look to

the plain language of the statute. Specifically, our inquiry must focus on the

definitions of words and phrases contained within the HICPA. The HICPA

states that “no home improvement contr act shall be valid or enforceable

against an owner unless it . . .” includes the 13 elements enumerated by the

HICPA. 73 P.S. § 517.7(a). The statute defines “home improvement” as work,

“done in connection with land or a portion of the land adjacent to a private

residence or a building or a portion of the building which is used or designed

to be used as a private residence for which the total cash price of all work

agreed upon between the contractor and owner is more than $500[.]” 73 P.S.

§ 517.2 (“Home Improvement”) (emphasis added). “Private residence” is

defined as either “a single family dwelling; a multifamily dwelling consisting

of not more than two units; [or] a single unit located within any multifamily

dwelling, including condominiums and cooper ative units.” 73 P.S.

§ 517.2(“Private Residence”).J. A300 35 /17

- 9

-

At the beginning of the trial, the trial court conducted a view of the

property in question. Based, in part, on the view, the trial court noted the

following observations:

What [the trial court] could not fail to notice was the existence of four (4) electric meters, three (3) water heaters, two (2) air conditioning units, both an apartment and a loft area created out of the first floor, in addition to an operating workshop with numerous organ pipes. It was obvious and apparent [to the trial court] that this property was constructed and used as something other than a single

- family unit and something other than purely residential.

[The trial court] found significant the facts that both the building and o ccupancy permits were issued for a commercial/residential property. [The trial court] was further persuaded that [appellant] was not using the property strictly as a residential, single family dwelling by correspondence [appellant] wrote to the building

m anager of Heidelberg requesting additional property addresses to accommodate his business, as well as his apartment and newly constructed rental unit.

Trial court opinion, 7/ 26 /17 at 11

- 12.

As noted by the trial court, appellant testified that he wrote a letter to

the Heidelberg borough manager, in which he requested two additional

addresses for the property for two apartments, while maintaining his business

address at the property. (Notes o f testimony, 1/ 13 /17 at 284.) The trial court

also noted that the property had four electric meters.

The HICPA does not provide a definition of what constitutes a “unit.”

When a word is undefined by statute, we may determine the “common and

approved m eaning of a word” by way of an “examination of its dictionaryJ. A300 35 /17

- 10

-

definition.” Chamberlain v. Unemployment Compensation Bd. Of

Review , 114 A.3d 385, 394 (Pa. 2015), citing Commonwealth v. Hart , 28

A.3d 989, 909 (Pa. 2011). Random House defines “unit” as “one of a number

of things, organizations, etc., identical or equivalent in function or form.”

“ unit ” . Dictionary.com Unabridged. Random House, Inc. 2 Feb. 2018.

<Dictionary.com http://www.dictionary.com/b rowse/unit >. Based on this

definition and the trial court’s factual determinations derived from its view of

the property, we find that the property contained three units

— appellant’s

business and two apartments.

Accordingly, in conjunction with HICPA’s de finitions of

“home improvement” and “private residence,” we therefore find that the trial

court did not abuse its discretion when it determined that the HICPA does not

control in the instant case

.

II.

Appellant next avers that he paid appellee “a sum of money in excess

of the value of the benefit conferred upon [appellant],” and as a result,

appellee cannot recover on the grounds of quantum meruit . (Appellant’s

brief at 36.) Appellee contends that app ellant failed to include any argument

pertaining to quantum meruit in his motion for post

- trial relief, thus waiving

the issue. (Appellee’s brief at 28.)

“Pa.R.C.P. 227.1 requires parties to file post

- trial motions in order to

preserve issues for appeal. If an issue has not been raised in a post

- trialJ. A300 35 /17

- 11

-

motion, it is waived for appeal purposes.” Crespo v. Hughes , 167 A.3d 168,

181 (Pa.Super 2017), quoting L.B. Foster Co. v. Lane Enterprises , 710

A.2d 55 (Pa. 1998) (citations omitted).

In the instant appe al, appellant filed post

- trial motions on February 3,

2017. Therein, he raised several issues; however, appellant failed to raise

any issues pertaining to quantum meruit or unjust enrichment. Accordingly,

we find that appellant’s second issue is waived f or the purposes of appeal.

III.

In his third issue on appeal, appellant contends that the trial court

abused its discretion when it determined that the UTPCPL, 73 P.S. § 201

- 1,

et seq. , did not apply because the trial court determined tha t the property

was a combination of residential, investment, and commercial. Appellee

argues that the trial court did not abuse its discretion because the UTPCPL

does not apply to investment properties.

W e find that the trial court did not abuse its disc retion, and that the

facts of record support the trial court’s determination that the property was a

combination of residential, investment, and commercial. The UTPCPL

specifically “provides for the right of individuals to bring a private action when

a “p erson . . . purchases or leases goods or services primarily for personal,

family or household purposes and thereby suffers any ascertainable

loss of money or property, real or personal . . .” 73 P.S. § 201

- 9.2(a),J. A300 35 /17

- 12

-

quoted by Lal v. Ameriquest Mortg. Co. , 8 58 A.2d 119, 125 (Pa.Super.

2004) (emphasis in original case law).

Here, t he trial court specifically noted the existence of four electric

meters, three water heaters, and two air conditioning units on the property.

Additionally, the trial court noted t hat appellant requested that the Borough

of Heidelberg grant him new addresses for the property for use by his business

and an apartment unit. We therefore find that the trial court did not abuse its

discretion when it determined that the UT PC P L does not apply to the property,

as the property was not being used primarily for personal, family, or household

purposes.

IV.

Appellant next argues that the trial court abused its discretion when it

limited appellant’s counsel’s re

- direct examination of appellant to

“two minutes,” following appellant’s testimony when called as if on cross

during appellee’s case

- in

- chief. (Appellant’s brief at 49

- 50.) Appellee

contends that this issue is waived because appellant’s counsel failed to place

an objection of record to the trial court’s directive that re

- direct examination

be limited to two minutes. (Appellee’s brief at 35

- 36.)

Our cases , citing Pennsylvania Supreme Court precedent, have

repeatedly stated that “[i]t is axiomatic that, in order to preserve an issue for

review, litigants must make timely and specific objection[s] during trial and

raise the issue in post

- trial motions.” Miller v. St. Luke’s Univ

. HealthJ. A300 35 /17

- 13

-

Network , 142 A.3d 884, 889 (Pa.Super. 2016), appeal denied , 164 A.3d

479 (Pa. 2016), quoting Harman ex rel. Harman v. Borah , 756 A.2d 1116,

1124 (Pa. 2000), citing Takes v. Metro

. Edison Co. , 695 A.2d 397, 400 (Pa.

1997); McMillen v. 84 Lumber, Inc. , 649 A.2d 932, 934 (Pa. 1994); Reilly

v. Southeastern Pennsylvania Transp. Auth. , 489 A.2d 1291, 1296 (Pa.

1985).

Here, appellant’s counsel failed to raise the objection during trial , and

accordingly waives the issue on appeal

.

V.

In his fifth and final issue on appeal, appellant avers that because

appellee was the first party to materially breach the contra ct with appellant,

appellant should be relieved of his obligation to pay the balance awarded to

appellee by the trial court. (Appellant’s brief at 51.) Specifically, appellant

contends that appellee was “obligated to attach to the contract (or otherwise

provide) drawings, specifications, Labor and Industry approved drawings,

notes detailing project cost breakdown and agreed upon assumptions for the

work to be performed by [appellee]

. ” ( Id. at 52.) Appellant further argues

that appellee only provided Dis aster Restoration Services drawings and

specifications at trial, “which fail to reflect the job [appellee] set out to perform

or the job they actually performed, and which were rejected by the parties at

the outset[.]” ( Id. )J. A300 35 /17

- 14

-

When considering an allegatio n of a material breach of contract, we are

governed by the following standard:

Pennsylvania courts have long recognized the general principle of contract law providing that a material breach of a contract, which is vital to the existence of a contract, rel ieves the non

- breaching party from any continuing duty of performance under the contract. LJL Transp., Inc. v. Pilot Air Freight Corp. , 962 A.2d 639, 648 (Pa. 2009) (citing Berkowitz v. Mayflower Securities , 317 A.2d 584, 586 (Pa. 1974) (citing 6 Willisto n, A Treatise on The Law of Contracts, § 8[64] (3d. ed. 1962))).

In LJL Transp., Inc. , our Supreme Court found that Pilot was justified in terminating its contract with a franchisee who improperly diverted business to a direct competitor of Pilot that the franchisee owned. Even though the franchise agreement expressly gave the franchisee a right to cure a breach of the agreement, the Supreme Court found the franchisee’s self

- dealing and disloyalty was an incurable breach that frustrated the general purpos e of the franchise agreement. Accordingly, the Supreme Court emphasized that Pilot should not be expected to continue to perform under the agreement where the parties’ basic trust had been violated:

When there is a breach of contract going directly to the essence of the contract, which is so exceedingly grave as to irreparably damage the trust between the contracting parties, the non

- breaching party may terminate the contract without notice, absent explicit contractual provisions to the contrary.

Such a breach is so fundamentally destructive, it understandably and inevitably causes the trust which is the bedrock foundation and veritable lifeblood of the parties’ contractual relationship to essentially evaporate. We find our lawJ. A300 35 /17

- 15

- does not require a non

- b reaching party to prolong a contractual relationship under such circumstances.

LJL Transp., Inc. , 962 A.2d at 562 (citation omitted).

Umbelina v. Adams , 34 A.3d 151, 159

- 160 (Pa.Super. 2011), appeal

denied , 47 A.3d 848 (Pa. 2012).

Here, appellant failed to establish that any material breach of contract

took place. As noted above, appellant avers that appellee failed to provide

specifications for the work to be performed at the property. This contention

is belied by the record. The trial court specific ally stated that it “accepted that

prior to any construction, the parties .

. . entered into a contract for

$369,542.50 for restoration commensurate with the plans drafted by Disaster

Restoration Services [] and signed by the parties on May 24, 2[01]3. (T rial

court opinion, 7/ 26 /217 at 28, citing notes of testimony, 1/13/17 at 206.)

Upon our review of the record, we find that appellee’s Exhibit 1, which

appellant acknowledged being the contract that he signed with appellee,

contains numerous drawings, spe cifications, and project cost breakdowns.

Accordingly, we find that the trial court’s findings are supported by the record

and that it did not abuse its discretion. A ppellant’s fifth issue is without merit.

Judgment affirmed.J. A300 35 /17

- 16

-

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/24/2018