J-A17033-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MANDS CONSTRUCTION COMPANY IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DOMUS INC. AND PHILADELPHIA 

REDEVELOPMENT AUTHORITY

Appellees No. 94 EDA 2015

Appeal from the Judgment Entered February 6, 2015

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): October Term, 2012 No. 001129

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED JULY 29, 2015

Appellant, Mands Construction Company (“Mands”), appeals from the 

judgment entered in the Philadelphia County Court of Common Pleas, in 

favor of Appellee, Domus Inc. (“Domus”).1 We affirm. 

The relevant facts and procedural history of this case are as follows. 

The Board of Directors of Mount Vernon Manor, an apartment complex, hired 

Domus as the contractor to renovate seventy-five (75) units within thirteen 

(13) buildings. The contract was federally funded. Projects receiving federal 

funds are subject to the Davis-Bacon Act (“DBA”). The DBA requires 

employers to file certified payrolls, ensures wage standards are met, and 

____________________________________________

1 The Philadelphia Redevelopment Authority (“PRA”) is not a party to this 

appeal. 
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limits the amount of hours employees can be required to work. Penalties for 

violating the DBA include “debarment,” which would prevent Domus from 

conducting future work on federally funded projects. 

Domus hired Mands as the subcontractor to complete demolition work 

on the property. Mands bid $300,000.00 for this work, and the parties 

signed the contract on March 8, 2012. After Domus amended the contract 

and removed a portion of the work, the total bid was $276,261.00. 

The text of the contract between Domus and Mands incorporated the 

DBA requirements. The contract also required the use of union labor. 

Mands did not belong to a union, and hired a negotiator to arrange for 

Mands to become a union company solely for this project. The negotiation 

failed, so Domus and Mands amended the contract to arrange for Domus to 

pay union benefits starting in week two while Mands continued to negotiate 

with the union. 

Mands began the job on September 6, 2012. On September 7, 2012, 

a representative from the PRA visited the job site. The representative 

interviewed each of the workers and reviewed the wages they should 

receive. The representative also spoke with Gerald Washington, the 

manager of this project and vice-president of operations for Mands, 

regarding the prevailing rate of pay. Several employees of Mands 

subsequently called the PRA and complained they were receiving $100.00 

per day instead of the prevailing wage, which was $47.85 per hour. Mands 
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terminated the complaining employees following these calls, allegedly for 

other reasons. 

After Domus learned of the PRA’s involvement, Domus contacted 

Mands and asked for the certified payrolls. Domus sent Mands a letter on 

September 13, 2012, warning Mands that Domus would terminate their 

contract if Mands failed to follow the DBA standards. Mands did not turn 

over any certified payrolls. Based on copies of the fronts of checks and signin sheets Mands submitted, Thomas Pyle, the project manager for Domus, 

estimated Mands’ labor costs for the project. Mr. Pyle calculated Mands 

should have paid its employees $26,987.00 in wages for the 8% of the 

project Mands had completed to date. The checks Mands submitted 

reflected payment totaling only $8,965.60. On September 19, 2012, Domus 

sent Mr. Washington a letter terminating Mands for cause, due to its failure 

to comply with the DBA. 

On October 9, 2012, Mands filed a complaint against Domus for 

wrongful termination and a request for a preliminary injunction halting all 

work on the project until Mands’ reinstatement as subcontractor, and for lost 

profits. Domus filed an answer and a brief in opposition of the preliminary 

injunction on October 23, 2012. On November 1, 2012, the court denied 

Mands’ request for a preliminary injunction. Mands amended its complaint 

on November 21, 2012, adding the PRA as a defendant, based on its alleged 

lack of meaningful review when investigating the employee complaints. 
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Mands amended the complaint a second time on December 27, 2012, and a 

third time on February 4, 2013. On February 26, 2013, Mands and the PRA 

stipulated Mands sought only a declaratory judgment that it did not violate 

the DBA but sought no monetary damages from the PRA. On March 15, 

2013, Domus filed a petition to compel arbitration. Mands filed an answer 

on April 3, 2013. On April 23, 2013, the court denied the petition to compel 

arbitration. The court dismissed the PRA from the case on June 25, 2014. 

Dismissal of the PRA is not before us on appeal. 

On August 25, 2014, the court held a non-jury trial. At trial, Mr. 

Washington testified for Mands and claimed he had paid workers the 

prevailing wage through Paychex, a payroll agency. He submitted copies of 

the front of several checks as evidence. Mr. Washington testified to an 

estimated profit between $140,000.00 and $150,000.00 on the project 

based on Mands’ original bid of $300,000.00. 

Mr. Pyle testified for Domus, stating Mands could not possibly have 

made this profit, based on labor calculations done at the prevailing rate of 

pay. Mr. Pyle’s calculations showed a labor cost alone of $230,000.00. He 

also testified to dumpster costs of about $38,000.00, which Domus would 

have deducted from the total contract. Mr. Pyle stated the remaining 

$8,000.00 would likely have gone to expenses like gas and tools, leaving 

Mands with no profit margin. 

Following the trial, the court ordered the parties to submit proposed 
J-A17033-15

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findings of fact and conclusions of law. The court found in favor of Domus 

on October 27, 2014; the court issued Rule 236 notice on October 28, 2014. 

On November 7, 2014, Mands timely filed a post-trial motion for a new trial. 

Domus filed an answer on November 14, 2014, and on the same day, the 

court denied Mands’ motion. On December 11, 2014, Mands filed a 

premature notice of appeal with this Court. On February 6, 2015, the court 

entered judgment in favor of Domus.2 The court did not order, and Mands 

did not file, a concise statement of errors complained of on appeal pursuant 

to Pa.R.A.P. 1925(b). 

Mands raises two issues for our review:

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN 

CONCLUDING THAT [MANDS] WAS JUSTIFIABLY 

TERMINATED ON SEPTEMBER 19, 2012 FOR VIOLATING 

THE DAVIS-BACON ACT? 

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION 

WHEN IT CONCLUDED THAT [MANDS] HAD NOT 

____________________________________________

2 Ordinarily, an appeal properly lies from the entry of judgment, not from 

the order denying post-trial motions. See generally Johnston the Florist, 

Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 516 (Pa.Super. 1995). 

Nevertheless, a final judgment entered during the pendency of an appeal is 

sufficient to perfect appellate jurisdiction. Drum v. Shaull Equipment and 

Supply, Co., 787 A.2d 1050 (Pa.Super. 2001), appeal denied, 569 Pa. 693, 

803 A.2d 735 (2002). Here, the court denied Mands’ post-trial motion on 

November 14, 2014. Mands filed a notice of appeal on December 11, 2014, 

prior to the entry of final judgment. The court entered final judgment on 

February 6, 2015. Thus, Mands’ notice of appeal was actually premature 

when filed, but it related forward to February 6, 2015, the date the final 

judgment was entered. See Pa.R.A.P. 905(a) (stating notice of appeal shall 

be treated as filed on day of entry). Hence, there are no jurisdictional 

impediments to our review. 
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DEMONSTRATED AND WAS NOT ENTITLED TO DAMAGES? 

(Mands’ Brief at 4).

In its first issue, Mands argues that Domus terminated the contract 

without sufficient evidence to demonstrate Mands’ violation of the DBA. 

Mands claims the PRA, the entity responsible for investigating complaints of 

improper wage payments, had made no conclusion regarding Mands’ alleged 

violations of the DBA at the time of Mands’ termination. Mands contends 

Domus knew the PRA was responsible for determining DBA violations and 

that the PRA had not done so here. Mands submits that agents of Domus 

admitted in their testimony they acted on allegations, without waiting for 

Mands to submit all its paperwork. Mands asserts the trial court erroneously 

relied on testimony referring to sign-in sheets and wage calculations when it 

decided Domus was justified in firing Mands, because Domus did not have 

this information at the time it terminated the contract.3 

Additionally, Mands maintains that even if such information was 

available, Mands presented evidence of distributed checks showing it paid 

____________________________________________

3 Mands complains about the trial court’s alleged improper reliance on 

testimony referring to sign-in sheets and wage calculations for the first time 

on appeal. Consequently, this claim is waived. See Pa.R.A.P. 302(a) 

(stating issues not raised in trial court are waived and cannot be raised for 

first time on appeal); Commonwealth v. Charleston, 16 A.3d 505 

(Pa.Super. 2011), appeal denied, 612 Pa. 696, 30 A.3d 486 (2011) 

(explaining to preserve claim of error for appellate review, party must make 

specific objection to alleged error before trial court in timely fashion and at 

appropriate state of proceedings; failure to raise such objection results in 

waiver of underlying issue on appeal). 
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employees $47.85 per hour. Mands contends the employees complaining to 

the PRA did so only in retaliation after Mands fired them for theft. Mands 

also claims it presented testimony showing Domus orally modified the 

original contract to permit Mands to begin work on the project without using 

union labor. Mands asserts it fulfilled its duty to pay the prevailing wage 

rates under the DBA, and consequently, no breach of contract occurred. 

Mands concludes Domus was unjustified in terminating their contract. 

In its second issue, Mands argues it demonstrated a lost profit of 

$140,000.00 to 150,000.00 on the project. Mands contends Domus made 

alterations subsequent to the signing of the contract to reduce Mands’ 

profits. Mands concludes it is entitled to expectation damages in the amount 

of its anticipated profits. 

In response to Mands’ first issue, Domus argues that, pursuant to the 

contract, Mands had the responsibility to abide by the DBA. Domus 

contends the contract incorporated DBA provisions such as submitting 

certified payrolls, which Mands did not do. Domus asserts it repeatedly 

requested certified payrolls from Mands, which Mands failed to submit. 

Domus emphasizes it warned Mands in a September 13, 2012 letter that 

Mands would be fired if it continued to flout the contract requirements. 

Domus maintains it was forced to terminate Mands due to Mands’ 

noncompliance, where Mands’ actions put Domus at risk for debarment. 

Domus also insists Mands failed to comply with the contract requirement to 
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use union labor. Domus contests Mands’ allegations that Domus knew 

Mands was using nonunion labor. Domus contends it took additional steps 

to ensure Mands’ compliance with the contract, by modifying the contract to 

ensure payment of union benefits. Domus claims Mands presented no 

evidence of an oral modification to the contract. Domus submits Mands’ 

breach of the contract requirement for union labor was another sufficient 

basis for Domus to terminate the contract. Domus concludes the trial court 

correctly determined Mands violated the terms of the contract, and Domus 

was justified in terminating Mands. 

In response to Mands’ second issue, Domus argues the details of the 

contract precluded any recovery for lost profits. Domus asserts Mr. 

Washington provided no evidence to corroborate his testimony concerning 

Mands’ alleged expected profits for the project. On the other hand, Domus 

contends it supplied credible evidence to show the expenses involved in the 

job done properly would have foreclosed Mands from making a profit. 

Domus submits that if Mands paid the prevailing wage, which it was required 

to do, Mands would not profit from the project. Domus concludes the trial 

court correctly decided Mands was not entitled to lost profits. We agree with 

Domus’ positions on both issues. 

Our standard of review of a trial court’s denial of a motion for a new 

trial is as follows:

We will reverse a trial court’s decision to deny a motion for 

a new trial only if the trial court abused its discretion. We 
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must review the court’s alleged mistake and determine 

whether the court erred and, if so, whether the error 

resulted in prejudice necessitating a new trial. If the 

alleged mistake concerned an error of law, we will 

scrutinize for legal error. Once we determine whether an 

error occurred, we must then determine whether the trial 

court abused its discretion in ruling on the request for a 

new trial. An abuse of discretion exists when the trial 

court has rendered a judgment that is manifestly 

unreasonable, arbitrary, or capricious, has failed to apply 

the law, or was motivated by partiality, prejudice, bias, or 

ill will.

Capoferri v. Children’s Hosp. of Philadelphia, 893 A.2d 133, 136 

(Pa.Super. 2006) (en banc), appeal denied, 591 Pa. 659, 916 A.2d 630 

(2006) (quoting Stalsitz v. Allentown Hosp., 814 A.2d 766, 771 

(Pa.Super. 2002), appeal denied, 578 Pa. 717, 854 A.2d 968 (2004)) 

(internal quotation marks omitted). 

Contract interpretation is a question of law; therefore, this Court is not 

bound by the trial court’s interpretation. Kraisinger v. Kraisinger, 928 

A.2d 333, 339 (Pa.Super. 2007). “Our standard of review over questions of 

law is de novo and to the extent necessary, the scope of our review is 

plenary as the appellate court may review the entire record in making its 

decision. However, we are bound by the trial court’s credibility 

determinations.” Id. (quoting Stamerro v. Stamerro, 889 A.2d 1251, 

1258 (Pa.Super. 2005)). 

“To maintain a cause of action in breach of contract, a plaintiff must 

establish: (1) the existence of a contract, including its essential terms; (2) a 

breach of a duty imposed by the contract; and (3) resulting damages.” 
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Lackner v. Glosser, 892 A.2d 21, 30 (Pa.Super. 2006) (citing Gorski v. 

Smith, 812 A.2d 683, 692 (Pa.Super. 2002), appeal denied, 579 Pa. 692, 

856 A.2d 834 (2004)). “For a contract to be enforceable, the nature and 

extent of the mutual obligations must be certain, and the parties must have 

agreed on the material and necessary details of their bargain.” Lackner, 

supra (citing Peck v. Delaware County Board of Prison Inspectors, 572 

Pa. 249, 260, 814 A.2d 185, 191 (2002)). “An enforceable contract 

requires, among other things, that the terms of the bargain be set forth with 

sufficient clarity.” Lackner, supra at 30-31 (citing Biddle v. 

Johnsonbaugh, 664 A.2d 159, 163 (Pa.Super. 1995)). 

“It is firmly settled that the intent of the parties to a written contract is 

contained in the writing itself. When the words of a contract are clear and 

unambiguous, the meaning of the contract is ascertained from the contents 

alone.” Chen v. Chen, 586 Pa. 297, 307, 893 A.2d 87, 93 (2006) (quoting 

Mace v. Atlantic Refining Mktg. Corp., 567 Pa. 71, 80, 785 A.2d 491, 

496 (2001)). Pennsylvania law states: 

When interpreting the language of a contract, the intention 

of the parties is a paramount consideration. In 

determining the intent of the parties to a written 

agreement, the court looks to what they have clearly 

expressed, for the law does not assume that the language 

of the contract was chosen carelessly. When interpreting 

agreements containing clear and unambiguous terms, we 

need only examine the writing itself to give effect to the 

parties’ intent.

Melton v. Melton, 831 A.2d 646, 653-54 (Pa.Super. 2003) (internal 
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citations omitted). In other words, the intent of the parties is generally the 

writing itself. Kripp v. Kripp, 578 Pa. 82, 90, 849 A.2d 1159, 1163 (2004) 

(internal citations omitted). “If left undefined, the words of a contract are to 

be given their ordinary meaning.” Id. (citing Pines Plaza Bowling, Inc. v. 

Rossview, Inc., 394 Pa. 124, 145 A.2d 672 (1958)). 

Lost profits are the difference between the amount the claimant 

actually earned and the amount the claimant would have earned had the 

defendant not interrupted the claimant’s business. Smith v. Penbridge 

Associates, Inc., 655 A.2d 1015 (Pa.Super. 1995). A court may award 

damages for lost profits where the claimant introduces sufficient evidence to 

permit a reasonably certain estimate of the amount of anticipated profits. 

Jahanshahi v. Centura Development Co., Inc., 816 A.2d 1179 

(Pa.Super. 2003). “Damages for lost profits...may not be awarded when the 

evidence leaves the trier of fact without any guideposts except...speculation.” 

Merion Spring Co. v. Muelles Hnos. Garcia Torres, S.A., 462 A.2d 686, 

695 (Pa.Super. 1983). “A mere possibility that the plaintiff might have 

made a profit...will not justify damages based on the assumption that the 

profit would have been made.” Scobell Inc. v. Schade, 688 A.2d 715, 719 

(Pa.Super. 1997) (quoting Aiken Industries, Inc. v. Estate of Wilson, 

477 Pa. 34, 42, 383 A.2d 808, 812 (1978), cert. denied, 439 U.S. 877, 99 

S.Ct. 216, 58 L.Ed.2d 191 (1978)). 

After a thorough review of the record, the briefs of the parties, the 
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applicable law, and the well-reasoned opinions of the Honorable Gary S. 

Glazer, we conclude Mands’ issues merit no relief. The trial court fully and 

properly supported its decision. (See Trial Court Opinion, filed January 15, 

2015, at 1; Opinion in Support of Order Denying Post-Trial Relief, filed 

November 14, 2014, at 1-2; Findings of Fact and Conclusions of Law, filed 

October 27, 2014, at 1-9) (finding: (1) contract incorporated DBA 

provisions, requiring submission of certified payrolls and use of union labor; 

Mands presented no evidence of oral modification of contract to allow for 

nonunion labor; Mands was aware of requirement to pay employees 

prevailing wages; Mands did not pay employees prevailing wages; Mands 

should have paid employees $26,987.00 in labor for portion of contract 

completed before termination, but Mands paid employees only $8,965.60;

Mands also failed to submit certified payrolls to Domus and failed to obtain 

union labor; Mands’ noncompliance with DBA provisions incorporated in 

contract justified Domus’ termination of Mands for cause; (2) details of 

contract precluded any recovery for lost profits; Mands failed to proffer valid 

claim for recoverable damages). Accordingly, we affirm on the basis of the 

trial court’s opinions. 

Judgment affirmed.
J-A17033-15

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/29/2015
.: 

' I 

1111111111111111111111111111111 

12100112900086 

Mands Construction Company Vs Demus, lnc.-OPFlD 

BY THE COURT: 

court respectfully requests that its November 14, 2014 Order be affirmed on appeal. 

Conclusions-of-Law, copies of which are attached hereto. For the reasons contained therein, the 

court issued an Opinion which incorporated the court's October 27, 2014 Findings-of-Fact and 

2014, in which the court denied plaintiffs motion for new trial. In support of that Order, the 

Plaintiff, Mands Construction Co., appeals from this court's Order of November 14, 

GLAZER,J. January 15, 2015 

OPINION 

J 

t,,_·, c: 

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Defendants 

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t;::·,.·, ! 

,_ . 

,_- DOMUS, INC., 94 EDA2015 ' and 

PHILADELPHIA REDEVELOPMENT 

AUTHORITY 

-·: .. 

-· 

? 

..,., 

:::.-::";:-:) v. COMMERCE PROGRAM t.: ..... ;·, 

Plaintiff NO. 01129 

MANOS CONSTRUCTION CO. OCTOBER TERM, 2012 

'N THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

Circulated 07/14/2015 02:54 PM
BY THE COURT: 

that the said Motion is DENIED. 

ORDERED 

New Trial of plaintiff, Mands Construction Co., it is hereby 

AND NOW, this 14th day of November, 2014, upon consideration of the Motion for a 

Defendants DOCKETED 

NOV 14 2014 

C.HART 

ORDER CIVIL ADMINISTRATION 

DOMUS, INC., and CONTROL NO. 14110860 

PHILADELPHIA REDEVELOPMENT 

AUTHORITY 

v. COMMERCE PROGRAM 

Plaintiff NO. OJ129 

MANOS CONSTRUCTION CO. OCTOBER TERM, 2012 

IN THE COURT OF COMMON PLEAS OF PHKJLADELPHIA COUNTY 

FIRST JUD[CIAL DISTRICT OF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

Circulated 07/14/2015 02:54 PM
Pa.R.C.P. 227.l cmt. l.b. (1995)(cited by Chalkey v. Roush, 569 Pa. 462, 494 (Pa. 2002)). 

with an opportunity to correct en-ors in its ruling and avert the need for appellate review. See 

original decision. Pa.R.C.P. 227.l(a)(4). The purpose of Rule 227.1 is to provide the trial court 

Upon a written motion for post-trial relief, a court may affirm, modify or change its 

DISCUSSION 

the reasons set forth below, the post-trial motion of plaintiff is denied. 

7, 2014 plaintiff filed a post-trial motion alleging that the court erred in ruling for defendant. For 

October 27, 2014. The facts and reasoning are hereby incorporated by reference. On November 

entered a finding in favor of defendant and issued Findings of Fact and Conclusions of Law on 

Findings of Fact and Conclusions of Law on October 19, 2014 and October 23, 2014. This court 

day bench trial held before this court on August 25, 2014. The parties submitted their proposed 

The issues in this case have been fully developed through extensive discovery and a one 

GLAZER, J. November 14, 2014 

OPINION 

DOCKETED 

NOV 14 2014 

C.HART· CIVIL ADMINISTRATION 

Defendants 

DOMUS, INC., and CONTROL NO. 14110860 

PHILADELPHIA REDEVELOPMENT · AUTHORITY 

v. COMMERCE PROGRAM 

Plaintiff NO. 01129 

MANDS CONSTRUCTION CO. OCTOBER TERM, 2012 

,.- - IN THE COURT OF COM1\10N PLEAS OF PHILADELPHIA COUNTY 

FIRST JUDICIAL D[STfilCT OIF PENNSYLVANIA 

CIVIL TRIAL DIVISION 

Circulated 07/14/2015 02:54 PM
I After trial had concluded, but prior to this court publishing its Findings of Facts and Conclusions of Law, plaintiff 

attempted to introduce evidence that was not proffered during trial. 

GLAZER,J. 

BY THE COURT: 

new trial is denied. 

in favor of defendant. Plaintiffs boilerplate motion is meritless, and therefore, the motion for a 

support its motion.1 This court's October 27, 2014 opinion fully outlined its reasons for finding 

reassess its findings. However, plaintiff offers no legal arguments or citations to the record to 

Plaintiff has essentially asked this court to re-evaluate the credibility of witnesses and 

plaintiff for cause. Finally, plaintiff failed to proffer a valid claim for recoverable damages. 

produce copies of certified payroll reports. Therefore, defendant was justified in terminating 

result, plaintiff violated the Davis Bacon Act by failing to pay prevailing wages and by failing to 

This court found that the parties were required to comply with the Davis Bacon Act. As a 

This court, based upon credible evidence and the law, disagrees. 

Act, that plaintiff proved damages, and that defendant was not justified in terminating plaintiff. 

did not apply to the contract between the parties, that plaintiff did not violate the Davis Bacon 

P'<intiff alleges that this court erred in finding for defendant by arguing that the Davis Bacot ;t 

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DOCKETED 

OCT 2 7 2014 

C.HAAT 

CIVIL ADMINISTRATION 

BY THE COURT: 

Mands Construction Co. 

that a finding is entered in favor of the defendant, Domus, Inc., and against plaintiff, 

October , 2014, it is hereby 

CIVIL ACTION 

NO. 00120 

October Term, 2012 

ORDERED 

AND NOW, 'this 2ih day of 

ORDER 

DOMUS,INC. 

v. 

MANDS CONSTRUCTION CO. 

IN THE COURT OF COMMON PLEAS OF PHliLADELl?HIA COUNTY 

FJ.RST JUDICIAL DISTRICT OF PENNSYLV ANKA 

CIVIL TRIAL DIVISION 

Circulated 07/14/2015 02:54 PM
I All testimony occurred on August 25, 2014. 

Mantua. [N.T. p. 10]. 

Vernon Ma.nor, the owner of 125 units of affordable housing located in the community of 

5. Michael Thorpe ("Thorpe") is the chairman of the board of directors of Mount 

amount of hours employees can be required to work. [N.T. p. 120]. 

requires certified payrolls to be filed, ensures that certain wage standards are met, and limits the 

4. As a result of the federal funding, the Davis-Bacon Wage Act applies, which 

3. Th~ project was federally funded. [N.T. pp. 119-20]. 

revitalized, along with the addition of a community center. [N. T. p. 119]. 

2. The scope of this project called for each unit to be demolished and then 

section of Philadelphia. [N.T. pp. 10, 119].1 

1. The project at issue in this case concerns the renovation of 75 units in the Mantua 

that this court finds as follows: 

ORDERED 

2i October , 2014, it is hereby AND NOW, this 11 day of 

FINDINGS .OF FACT 

DOMUS,INC. CIVIL ACTION 

v. NO. 001120 

MANDS CONSTRUCTION CO. October Term, 2012 

KN THE COURT OF COMM:ON PLEAS OF PHILADELPHIA COUNTY 

FIRST JUKHCIAL DISTRICT OF PENNSYL V ANKA 

CIVIL TRIAJL D[V!SION 

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2 

6. Demus, Inc. ("Domus") was awarded a no-bid contract for the project, and N. __ ids 

Construction Co. ("Mands") was awarded the subcontract. [N.T. p. 11). 

7. The nature of the subcontract was for the selective demolition of the 75 

apartments. [N.T. p. 28]. 

8. Thorpe asked Gerald Washington ("Washington"), vice-president of operations 

for Mands Construction, to assist and to hire people from the Mantua community to work on the 

project. [N.T. pp. 11-12, 23]. 

9. The project was not competitively bid; Washington felt that he could complete the 

work for less than $300,000 and bid that amount. [N.T. pp. 30-31]. 

10. Thorpe was aware that the Philadelphia Redevelopment Authority ("PRA") . 

administered federal funds for the project. [N.T. p. 20). 

11. Thorpe was also aware that the project was funded in part by a community 

revitalization grant from the United States Department of Housing and Urban Development and 

· by law, Domus was required to allocate a certain percentage of jobs to people in the community. 

[N.T. pp. 17-20). 

12. Thorpe acknowledged that Domus was awarded the job because of their resources 

and proven track record on completing jobs similar to the one at issue here. [N.T. p. 16). 

13. The contract between Mands and Demus was signed on March 8, 2012. [P-2). 

14. Per the terms of the contract, Mands was required to furnish Union labor and 

other materials to perform the demolition. [N.T. p. 64). 

15. The scope of the work is set out in Article 8 of the contract, which also states in 

capital, bold letters that certified payrolls are required. [D-1, p. 1 O]. 

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3 

20. On or about May 30, 2012, the parties modified the original contract so that 

Domus would pay union benefits starting from week two of the project and deduct them from 

Mands' contract. (D-3]. 

21. Domus refused to agree to a scenario in which the demolition would be carved out 

of the Domus contract. [N.T. p. 13]. 

22. Fullard assisted Dornus and Mands in trying to resolve issues with Laborer's 

Union Local 332. [N.T. p. 97]. 

23.. After two months of negotiations, Fullard was unable to reach an agreement with 

the union for a job-specific arrangement. [N.T. pp. 99-100]. 

24. Fullard stressed to Washington that he needed to pay the prevailing wages to 

employees. (N.T. p. 101]. 

25. Mands started the job on Thursday, September 6, 2012. [N.T. pp. 42, 88]. 

14]. 

18. Shortly after signing the contract, Washington learned that the contract required 

the use of union labor. [N.T. p. 12). 

19. After several meetings regarding this issue, Anthony Fullard ("Fullard") proposed 

a solution where Washington could be on the job and be union for this specific project only, 

which satisfied the requirement that Mands' employees be members of a union. [N. T. PP·. 13, 

75]. 

16. According to Article 11.12 of the contract, Mands was to furnish weekly cei. ied 

payroll reports as a condition precedent to receiving payment. [D-1, p. 13]. 

17. In addition to the specific contract language, Ms. Ella Tate of Domus explained 

the certified payroll requirement to Washington at the beginning 'of the contract. [N.T. pp. 73- 

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4 

31. Washington claimed he terminated the employees because he was not satisfied 

with their work performance. [N.T. pp. 44-47]. 

32. · · Washington asserted that although he fired the employees on Monday, he told 

them in advance over the weekend that they would be fired on Monday. [N.T. pp. 86-87]. 

33. Washington admitted that Ms. Ella Tate, Demus' Payroll Compliance Officer, 

gave him a packet of information regarding how to submit certified payrolls. [N.T. pp. 76-77]. 

34. Washington acknowledged that he knew that he was required to submit the 

certified payrolls using standard WH-34 7 forms from the Department of Labor because this was 

a federally funded job. [N. T. p. 77]. 

27. This representative of the PRA also posted the wage rates inside the trailer where 

the employees signed in and out of work each day. [N.T. p. 42]. 

28. At this point, two days into the project, Washington was still unaware of the exact 

rate of pay and told the PRA representative that he would pay the prevailing rate until the union 

situation was resolved. [N.T. p. 89]. 

29. Several of Mands' employees called the PRA and complained that they were not 

being paid the prevailing wage. [Exhibit D~12, PRA 0019], 

30. Brian Sheed ("Sheed") and Anthony Rosser ("Rosser''), two of Mands' 

employees, told the job superintendent that they were getting paid $100 a day. [N. T. pp. 146- . 

147]. 

of pay. (N.T. p. 88]. 

26. On Friday, September 7, 2012, the second day of the job, a representative of i..; 

PRA came to the job and began interviewing Mands' employees and explaining to them the rate 

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5 

121-122). 

44. Domus never received any certified payrolls from Mands. [N.T. p. 122]. 

43. In order to verify that subcontractors' laborers are paid in accordance with the 

Davis-Bacon Wage Act, subcontractors are required to submit certified payroll forms. [N.T. pp. 

121]. 

37. Washington explained to the employees he terminated that he was unable to pay 

them the prevailing wage. [N.T. pp. 86-87]. 

38. The rate for unskilled laborers on the job was $25.15 per hour and the fringe 

benefits were $22.70 per hour. [N.T. p. 93]. 

39. Instead of paying his workers this rate and contributing fringe benefits to the 

union, Washington was writing gross checks for $47.85 because the employees were not union 

members. [N.T. p. 93-95]. 

· 40. Penalties for violating the Davis-Bacon Wage Act include tying up the company 

money as a whole, as well as the possibility of debarment. [N.T. pp. 120-121]. 

41. If a contractor is debarred, that contractor is placed on ·a list and is not allowed to 

do work for any specific agency. [N.T. p. 121]. 

42. Because approximately 80 percent of the work performed by Demus is based on 

federally funded projects, debarment would have a very big impact on Demus' business. [N.T. p. 

[N.T. p. 78]. 

35. Washington understood that he was required to fill out forms certifying undc. 

oath that he paid his employees in accordance with the Davis-Bacon Wage Act, yet did not 

produce copies of any of these certified payroll forms at trial. [N. T. p. 78]. 

36. A representative of the PRA delivered several paychecks to the fired employees. 

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-6 

2 Plaintiff submitted a supplemental memorandum of law to this court on October 20, 20 l4, which included various 

exhibits. However, because these documents were not introduced at trial, which concluded on August 25, 20 l4, this 

court has declined to review this additional "evidence." 

for cause. [P-8]. 

53. On September 19, 2012, Demus sent a termination letter to Mands, firing Mands 

pp. 122, 139]. 

standard work rules, including paying the prevailing rates and submitting certified payrolls. [N.T. 

52. Mands never provided any evidence to prove compliance with the federal labor 

anything. [N.T. pp. 132-133]. · 

payment to Mands by Demus, Mands never submitted an invoice to Domus for payment for 

51. Even though payment to Mands' employees was a condition precedent for 

and tools, leaving Mands with no profit. [N._T. p. 13 8]. 

50. The remaining $8,000 would have likely been spent on other expenses like gas 

$230,000, with $38,000 in dumpster costs deducted from the contract. [N.T. pp. 137-138]. 

49. Mands' labor costs for work on the $276,000 job would have been approximately 

48. Mands only completed approximately eight percent of the job. [N.T. p. 137]. 

total of $6,094.60. [N.T. pp. 130-131]. 

47. Washington turned over a payroll journal that showed he paid his employees a 

only $8,965.60. (N.T. pp. 128-130].2 

paid the· employees $26,987,_yet Mands provided copies of only the fronts of checks that totaled 

46. Based on this chart, Pyle estimated that at the prevailing rate, Mands should have 

[D-11]. 

much Mands should have been paying the employees if Mands was paying the prevailing wages. 

45. Thomas Pyle ("Pyle"), the project manager, created a chart to determine hov. 

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7 

56. Mands was terminated for violating the Davis-Bacon Act. 

57. Plaintiff is seeking damages for breach of contract and lost profits. However, 

plaintiff has not proven any damages or lost profits. The contract does not allow for recovery of 

lost profits. 

58. The contract provides that any modifications proposed by Mands must be 

approved by Demus. [D-1 at p. 16, Article 18 .2]. 

59. Both parties agreed to a modification of the contract whereby Domus would pay 

for the dumpsters on the site and deduct the cost from the total contract price. [D-1 at Exhibit D, 

Scope of Work]. 

60. The contract was modified to expressly require Mands to "pay wages for workers 

and all related Union Fringes and Benefits to the Labor's [sic] Local directly" for the first week 

of work on the project, and to "pay the net amount due to [Mands') workers." [D-1 at Exhibit D, 

Scope of Work]. 

7.2.2]. 

[D-1, Article 7 .2.1]. 

55. Under a termination for convenience, the subcontractor is only entitled to recover 

the costs incurred for performing the work up until the date of the termination. [D-1, Article 

54. The plaintiff, Mands Construction, has claimed that its termination was "for 

cause" under the contract. If the subcontractor is fired for cause, he/she is entitled to recover the 

difference between the subcontract sum and the subcontractor's expense in completing the work. 

CONCLUSIONS OJF LAW 

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8 

6 ! . The modification, signed by Domus, provided that Domus would pay union 

fringes and benefits directly the union starting from week two through completion of the project. 

[D-1 at Exhibit D, Scope of Work]. 

62. "An agreement prohibiting non-written modification may be modified by a 

subsequent oral agreement if the parties'. conduct clearly shows an intent to waive the 

requirement that amendments be in writing." Accu-Weather, Inc. v. Prospect Communications, 

Inc., 435-Pa.Super. 93, 101, 644 A.2d 1251 (1994). 

63. Plaintiff has not produced any evidence to prove that the contract was orally 

modified to allow Mands to use non-union labor to perform the work. 

64. Because the job was federally funded, and because the contract states that all 

federal labor standard work rules apply, the parties were required to comply with the provisions 

of the Davis-Bacon Act. [D-1 at p. 14, Article 14.1.1]. 

65. The Davis-Bacon Act requires that local laborers and contractors are to be paid at 

a rate based on the prevailing wages determined by the Secretary of Labor for corresponding 

groups of workers. 40 U.S.C.A. § 3142(b) . 

. 66. Under the Davis-Bacon Act, contractors and subcontractors are required to submit 

certified payroll reports every week, and the contract requiredMands to use HUD form WH-347 

for the reports. (D-12, p. PRA 0073, Article 2-3; D-1, Article 11.12]. 

67. Form WH-347 requires that someone sign the payroll and certify that the 

information in the report is true. [D-12, p. PRA 0073, Article 2-3 (b )] . 

68. The Davis-Bacon Act requires the principal contractor to ensure that the 

subcontractor complies with the applicable labor standards provisions. [D-12, pg. PRA 0068, 

Article 1-4 ). 

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GLAZER,J. 

BY THE COURT: 

Mands Construction. 

74. A finding is entered in favor of the defendant, Dom us, lnc., and against plaintiff, 

73. Mands has not asserted a valid claim for any recoverable damages. 

Demus was justified in terminating Mands for cause. 

Bacon Act, and failed to furnish union labor as required under the express terms of the contract, 

72. Because Mands never certified that the company had complied with the Davisthe Davis-Bacon Act. 

71. Mands has not produced any copies of certified payroll reports, thereby violating 

Bacon Act. 

70. Mands did not pay prevailing wages to employees, thereby violating the Daviscontractor and Mands as the subcontractor. [D-1, pg. 1]. 

69. The contract between Demus and Mands characterizes Demus as the princips. 

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