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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 MANDS CONSTRUCTION C OMPANY IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant
v. DOMUS INC. AND PHILADELPHIA REDEVELOPMENT AUTHOR ITY 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 thirt een (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.J - A17033
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limits the amount of hours emp loyees 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 incorporate d 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 re presentative 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. S everal 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. MandsJ - A17033
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terminated the complaining employees following these calls, allegedly for other reaso ns. 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 sta ndards. Mands did not turn over any certified payrolls. Based on copies of the fronts of checks and sign
in sheets Mands submitted, Thomas Pyle, the project manager for Domus, estimated Mands’ labor costs for the project. Mr. Pyle calculated Mands shoul d 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 cau se, 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, ad ding the PRA as a defendant, based on its alleged lack of meaningful review when investigating the employee complaints.J - A17033
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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 te stified 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 o n 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 p rofit margin. Following the trial, the court ordered the parties to submit proposedJ - A17033
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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, 20 14, 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, 2 015, 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 jurisdictio n. 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. T hus, 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 a re no jurisdictional impediments to our review.J - A17033
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- DEMONSTRATE D 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 invest igating 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 no t 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 evide nce 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 err or 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).J - A17033
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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 t he 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 u njustified 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’ prof its. 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 c ontract 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 c omply with the contract requirement toJ - A17033
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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 pr ofits. 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 don e 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 entit led 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. WeJ - A17033
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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 scrutin ize 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 th at 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.”J - A17033
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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 th e 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 thi ngs, 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 contain ed 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 look s 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) (internalJ - A17033
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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). “Dama ges 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 plaint iff 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 8 08, 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, theJ - A17033
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applicable law, and the well
- reasoned opinions of the Honorable Gary S. Glazer, we conclude Mands’ is sues 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 Conclusi ons 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; Man ds 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
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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/29/2015

# .:

' I 

## 1111111111111111111111111111111 12100112900086 Man d s Co n s truction Co m pany Vs D e mus, lnc.- O PFlD 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 Orde r of November 14, January 15, 2015 GLAZER,J. OPINION J 

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### ~ &i Defendants 

### · ~ ., r · · · · i · •• • j . - - r · ·- t ;j t ;: : · , .· , ! ,_ .
, _- ' 94 EDA2015 DOMUS, INC., and PHILADELPHIA REDEVELOPMENT AUTHORITY -·: . . 

### - · ? ..,. , ::: .-:: " ; :-: ) t.: ..... ;·, COMMERCE PROGRAM 

### v. NO. 01129

Plaintiff OCTOBER TERM, 2012 MANOS CONSTRUCTION CO. ' N THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY

FIRST JUDICIAL DISTRICT OF PENNSYLVANIA

CIVIL TRIAL DIVISION Circulated 07/14/2015 02:54 PMBY 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 

### 1 4 2014 C.HART CIVIL ADMINISTRATION 

### ORDER CONTROL NO. 14110860 DOMUS, INC., and PHILADELPHIA REDEVELOPMENT AUTHORITY COMMERCE PROGRAM 

### v. NO. OJ129

Plaintiff OCTOBER TERM, 2012 MANOS CONSTRUCTION CO. IN T HE COURT OF COMMON P LEAS OF PHKJLADELPHIA COUNTY

FIRST JUD[CIAL DISTRICT OF PENNSYLVANIA

CIVIL TRIAL DIVISION Circulated 07/14/2015 02:54 PMPa
. R. C .P. 227.l cmt. l. b

. ( 1 995)(c i ted b y C h a lke y v . Ro u s h , 569 Pa
. 4 6 2, 4 94 ( P a . 20 02 )).

w i th an opp ortuni ty to correct en-o r s i n i ts ru lin g and ave rt the nee d fo r appell ate r e view

. See orig in al d ecis i o n . Pa
. R.C
. P
. 227. l(a )( 4 )
. Th e purp os e o f Ru le 227.1 i s to provide th e trial court Upon a writt e n m o ti on fo r pos t
- tri al relie f, a co u rt may affirm, mod i fy o r chan g e i ts DIS CU SSION th e r easo ns s e t fo rth b e l ow , th e post-trial moti o n o f pl a intiff i s d e ni ed

. 7, 2014 pl ainti ff file d a p o st-tri a l moti o n a ll eging that th e c ourt erre d in ruli n g fo r d efen d ant. Fo r O c to ber 2 7, 2014
. Th e fact s an d r e ason in g are h e r e b y incorporate d by refe r ence . On N ovemb er e nter ed a findi n g i n favo r o f d efe ndant and is s u e d F i nd in g s of Fac t and Co n c lu s ion s of Law on F i nd i n g s of F a c t and Conc l usions of La w o n O c tober 1 9, 2 0 14 a nd Oc t o b e r 23, 2 014
. Thi s court d ay b en ch tri al h e l d be fo r e thi s c ourt o n A u gus t 25 , 20 14
. The parties s ubmi tted th e i r p r o p ose d T he i ssues i n th is cas e ha v e b e en full y d e v e l ope d thr oug h ext e nsi v e discovery and a o n e No v e mber 1 4 , 20 14 G L A ZE R, J. OP I N I ON 

## D OC KETED NOV 14 

### 2 0 14 C. H A R T · C I VIL A D M I NIST RAT IO N De fe n d a n ts C ON TROL NO
. 14110860 D OMU S , INC., a n d P HI L ADEL PHIA REDE V EL O PMENT · A UT H ORIT Y C OM MERCE PROGRAM 

### v. N O
. 011 2 9

P l ain ti ff OCTOBER 

### T E RM , 20 1 2 MAND S C ONSTRU C TION CO
. ,. - - IN T HE CO U R T OF CO M1\1 0N P LE A S O F P H ILA D E LPHI A COUNTY

F IRST JUD I C IAL D [STfil CT OIF PE N NS YL V A N I A

C IVIL TRIA L DIV I SION Circulated 07/14/2015 02:54 PMI After trial had con c lud e d, but prio r t o this c ourt publi s hin g it s Findin gs of Fa c ts and Con c lu s i o n s of Law , plaintiff

attempted t o in tr odu ce evi den c e that w a s n o t pro ff e r e d during tri a l. GLAZER,J.



### BY THE COURT: ne w trial is deni e d. in favor of defendan t. Plaintiffs boilerplate motion is meritless, and ther e fore , the motion for a support its motion

. 1 This court's October 27 , 2014 opinion fully outlined its r e a s ons for finding reassess its findings. However, plaintiff offers no legal argume n ts or citations to the record to Plaintiff has essentially asked this court to re-e v aluate th e credibility of witnesses and plaintiff for cause . Finall y , plaintiff failed to proffer a v a l id claim for reco v erab l e damages. produce c o pies of certified payroll reports
. Therefore, defendant w as justified in termina ting result, plaintiff v iolat e d the Davis Bacon Act by failin g to pay pre v ailing w age s and b y fai ling to T hi s court found that the parti es wer e required to compl y with the Da v i s Bacon Act. As a This court , bas e d upon credible e vi den c e and the la w , d is agre e s. A c t, that plaintiff pr o ved damages , and that defendant w as not justified in t e rmin ating plaintiff. did n o t appl y t o the co ntra c t b e tw e en the partie s, that plaintiff d id not v iol at e the Davi s Ba c on P' <i n t iff a ll e g e s that thi s c o urt erre d in fi nd i n g for defe nd a n t b y ar g u i n g th at the D a v i s B a cot ; t Circulated 07/14/2015 02:54 PM

## DOCKE T ED O C T 2 7 201 4 C. HAA T CIV I L AD M INISTR A TIO N

B Y TH E C OU RT : M a n d s C o ns tructi o n Co. th at a fi n d ing is en t e r e d in favor o f th e de fe n d a nt, D o mu s, I n c ., a nd a ga in s t plai n t iff , , 2 0 1 4 , it i s h e r e by O c t ober C IVIL ACTION N O
. 00 12 0 Oc tob e r T e rm, 2 01 2

ORDE RE D 

### 2i h day o f AN D N OW , ' th i s O RD E R D O M U S ,I NC. 

### v. MA N D S CO N STRUCTI ON C O
. IN T H E COU RT OF COM M O N P L EA S OF PH li LA D E L l? HIA COUN T Y

FJ.RST J UD I C IAL DISTRIC T OF P E N NSYLV ANKA

CIV I L T RIAL DI VIS ION Circulated 07/14/2015 02:54 PMI All testimony o ccurred 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 boar d of directors of M o unt 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 , 2014, it is hereby October 

### 2i 11 day of AND NOW, this FINDINGS .OF FACT CIVIL ACT I ON DOM U S,INC. NO. 001120 v. O c tober Term, 2012 MANDS CONSTRUCTION CO. KN T HE C OU RT OF COMM:ON PLEAS OF PHILADELPHIA C OUN TY

FIRST JUKHCIAL DISTRICT OF PENNS Y L V ANKA

CIVIL TRIAJL D[ V !SION Circulated 07/14/2015 02:54 PM2 6. Demus, Inc. ("Domus") was awarded a no-bid contra c t for the project, and N

. __ ids Con s truction 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 C o nstruction, 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]. Circulated 07/14/2015 02:54 PM3 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. Ac c o rding to Article 11.12 of the contract, Mands wa s to furnish weekly c e i. ied payroll rep o rt s 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- Circulated 07/14/2015 02:54 PM4 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 thi s was

a federally funded job. [N. T. p. 77]. 27. This representative of the PRA al s o posted the wage rate s inside the trail e r 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

s ituation 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' empl oy ees, told the job superintendent that they were getting paid $100 a day. [N. T. pp. 146-
. 147]. of pay. (N.T. p. 88]. 2 6
. On Friday, S eptember 7, 2 012, the second day of the job, a repr e s e ntative o f i

. . ; PRA cam e t o the j o b and began int e rv iewing Mands' emplo y ees and explaining to them the rate Circulated 07/14/2015 02:54 PM5

121-122). 44. Domus never r eceived any certified payrolls from M a nds. [N.T. p. 122]. 43. In order t o verify that subcon tractors' 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 unab le 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

mon e y 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 under s t oo d that he was r e quired t o fill out forms certifying undc.

o ath th at he paid h i s empl o yee s in a ccorda n c e with the Da v i s -Bacon Wage A c t, y et d id not produce copies o f any of these certified payroll forms at trial. [N. T. p. 78]. 36. A repre s entative of the PRA delivered several paychecks to the fi r ed employees. Circulated 07/14/2015 02:54 PM-6 2 Plain tiff s ubmitted a s upplemental memorandum of law to this court on October 20 , 20 l4, w h i c h included various exhibits. However, because these documents w e re not introduced at trial, which concluded on Augu s t 25, 20 l4, this court has declined to review this additional "evidence." for cause. [P-8]. 53. On Sept e mber 19, 2012, Demus sent a termination letter to Mand s , 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 o f 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 p a id his employees a only $8,965.60. (N.T. pp. 128-130]. 2 paid the· e mpl o yee s $26,987,

_yet M a nds provided copies of only the fronts of checks that totaled 46. Based on this chart, Pyle estimated that at the prev a iling rate, M a nds should have [D-11]. much M a nd s s h o uld have been paying th e employees if Mands was paying the prevailing wa g e s . 45. Thomas Pyle ("P y le"), the project manager, c reated a chart to determine h ov . Circulated 07/14/2015 02:54 PM7 56. Mands was terminated for violating the Davis

- Bacon A c t. 57. Plaintiff is seeking damages for breach of contract and lost profits. However, pl ai nti ff has not proven an y damage s or lost profits. The contrac t d o es not allow for recovery of lost profi t s. 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 co n tract whe r eby Domus would pay for the dumpsters on the site and deduct the cost from the total c ontract price

. [D-1 at Exhibit D, Scope o f 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 w ork on the project, and to "pay the ne t amount due to [Mands') w o rkers. " [D-1 at Exh i bi t D, Scop e of Work]. 7.2. 2 ]. [D-1, A rticle 7
. 2.1]. 55. Under a termination for convenience, the subcontra c t o r is only e ntitled to r e c o v e r the co s t s incurred for performing the work up until the date of the termin ation. [D-1, Article 54. Th e pl ai n tiff, Mands C on s tru cti o n, ha s claimed that it s t e rmin ati o n w as " for

cause " u n der the c o ntract. If the subc o ntractor is fired for c au s e, he/s he i s entitled t o r e cov e r the d iff e r e n ce betwe e n th e s ubcontract sum and the subcontractor's e x pens e in completin g the w o rk. CONC LU SI O N S OJF LA W Circulated 07/14/2015 02:54 PM8 6 !
. The modifi c ation, signed by D o mus, provided that Domu s would pay u nion fringes and benefi t s di r ectly the u ni o n s tarting from we e k two through completion o f the proje ct. [D-1 at Exhibit D, Scope of Work]. 6 2
. "An agreement prohibiting non-written modification may be mod i fied by a subsequent oral agreemen t if the parties '
. conduct clearly sh o ws an intent t o waiv e the requirement that amendments be in wri ting." A c cu-Weather, Inc. v. Prospect C o mmuni c ations, Inc., 435-Pa.Super. 93 , 101, 644 A.2d 1251 (1994). 63. Plaintiff has n o t produced any evidence to prove that the contract was orally

m o dified 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

o f the Davi s -Bacon Act. [D-1 at p. 14, Article 14.1.1]. 65. The Davis-Bacon Act requires that local laborers and contractors are t o 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, contracto r s and subcontr a ctors 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 s o meone 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 requir e s the principal contractor to ensure that the subcontractor complies with the applicable labor st a ndards provisions. [D-12, pg. PRA 0068, Article 1-4 )
. Circulated 07/14/2015 02:54 PM9 G LAZER,J. BY THE COURT: Mands Constructi on . 74. A findin g is entered in favor of the d e fendant, Dom us , lnc., and a g a inst pl ai n tiff, 73. Mands has not assert e d a v a lid c laim for any reco v erable damages. De mus wa s ju stified in t e rmin ating Mands for c au s e. B a con A ct , and failed 

### t o furni s h uni o n lab o r a s r e quired u nder the e x pre s s terms of the c o ntrac t, 72. Becau s e Mand s nev e r certi fi e d that the company had c o mplied with th e Davi s th e Da v i s -Ba co n Act. 71. Mand s ha s n o t produ c ed a ny cop i e s o f certifi e d payroll re p ort s, thereby v iolating B aco n Act. 70. M a n ds did n o t pay prevailing wages to empl o y e es , ther e by viol ating the D av isc o ntrac t o r a n d M and s a s the s ubc o ntra cto r. [D-1, pg. 1]. 69
. T h e co ntract be t w een De mus an d Ma nd s c h ara c teri zes De mu s a s th e pri nc i ps. Circulated 07/14/2015 02:54 PM