J. A30035/17

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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

consolidated 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:
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On or about March 21, 2013, [appellant’s] property 

located at 476 1st Street in Heidelberg, Pennsylvania 

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] originally 

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, leaving 

$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 recommendation 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 rebuild 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 construction, 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 Farm, in 

addition to $26,000 paid ‘out of pocket’ by 

[appellant].
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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 476 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 II). 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. [Appellee] assert[s] 

that the subject property, which is deemed 
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“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 EnrichmentQuantum 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 motions, 

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 Leave 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 assigned 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, the 
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owner and operator of [appellee]; [appellant], the 

owner of the subject property; Robert Gelman, a 

certified 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 consideration, 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 14-01240.

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], 

through 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, 7/26/17 at 1-5. The trial court filed an opinion pursuant 

to Pa.R.A.P. 1925 (a) on July 25, 2017.
J. A30035/17

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Appellant raises the following issues for our review:

I. Is [a]ppellant entitled to judgment as a matter 

of law ([“JNOV”]) based upon the operation of 

Pennsylvania’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 party?

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 [appellee] 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 

Improvement 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. A30035/17

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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. The 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, 7/26/17 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 movant. 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 record and 

concludes that the evidence was such that 
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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 order 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 contract 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 cooperative units.” 73 P.S. 

§ 517.2(“Private Residence”).
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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 occupancy 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 

manager 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 of 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 meaning of a word” by way of an “examination of its dictionary 
J. A30035/17

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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/browse/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 definitions 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 appellant 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-trial 
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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 appeal, 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 for 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 that 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.

We find that the trial court did not abuse its discretion, 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 “person . . . 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), 
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quoted by Lal v. Ameriquest Mortg. Co., 858 A.2d 119, 125 (Pa.Super. 

2004) (emphasis in original case law).

Here, the 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 that 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 UTPCPL 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. Health 
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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 contract 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 Disaster 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.)
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When considering an allegation 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, relieves 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 Williston, 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 purpose 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 law 
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does not require a non-breaching 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 specifically 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. (Trial 

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, specifications, 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. Appellant’s fifth issue is without merit.

Judgment affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/24/2018