J-A08002- 14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 FRED DENIG, JR., Appellee

v. 501 GRANDVIEW, INC., A PENNSYLVANIA CORPORATION, AND 501 GRANDVIEW ASSOCIATES, LP, A PENNSYLVANIA LIMITED PARTNERSHIP, Appellants : IN THE SUPERIOR COURT OF : PENNSYLVANIA : : : : : : : : : : : No. 1081 WDA 2013

Appeal from the Judgment Entered June 6, 2013, In the Court of Common Pleas of Allegheny County, Civil Division, at No. G.D. 09-21205.

BEFORE: SHOGAN, OLSON and WECHT, JJ. MEMORANDUM BY SHOGAN, J.: FILED AUGUST 22, 2014 501 Grandview, Inc. and 501 Grandview Associates, LP (co llectively, “Grandview”) appeal from the judgment entered in fav or of Fred Denig, Jr. (“Denig”) following a non -jury trial. We affirm. Denig performed contract work as an architect for Gran dview. Pursuant to a contract dated March 28, 2006, Denig prov ided drawings and supervisory services for the construction of a five-story, eleven-unit, condominium/apartment building for a flat fee of $15 0,000.00 (“the Project”). As the Project developed, Grandview requeste d that Denig prepare revisions, as well as additional drawings and pl ans. DenigJ-A08002- 14

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performed some of the additional work for which he wa s paid; he performed other portions of the additional work for which he wa s not paid. Eventually, Grandview and Denig ended their relationship. Grand view claimed the last day Denig furnished services under the contract was April 30, 2009. Denig maintained his last performance of contract work was a sit e visit on May 18, 2009. Denig’s invoiced but unpaid fees totaled $17,71 0.00, including $9,000.00 for contract administration. Denig filed a mechanics’ lien on November 16, 2009. M echanic[s’] Lien Claim, 11/16/09, at Exhibit C. Damages were ba sed, in part, on two invoices: one dated March 31, 2009, for unpaid work t otaling $8,710.00 (Trial Exhibit 30), and one dated April 30, 2009, f or contract administration services totaling $9,000.00 (Trial Exhibit 31). Accordi ng to an AIA application certificate (Trial Exhibit 32), Denig appr oved payment by the bank and agreed that construction had reached 35% as of April 30, 2009. However, through testimony at trial, Denig claimed a n additional $1,000.00 for contract administration performed in April 2009 an d disputed that the Project was only 35% complete as of April 30, 2009. De nig further testifie d that the Project was almost 50% complete at the time of his termination. Denig’s mechanics’ lien claim resulted in a verdict in his favor on March 18, 2013, for $17,710.00. Grandview filed post -trial motions, which the trial court denied. Order, 6/3/13. Judgment wa s entered on June 6,J-A08002- 14

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2013. Grandview timely appealed. Both Grandview a nd the trial court subsequently complied with Pa.R.A.P. 1925. On appeal, Grandview presents the following issues for our consideration:

1. DID THE TRIAL COURT ERR IN FINDING THAT [DENIG] HAD COMPLETED 50% OF HIS CONTRACTED WORK?

2. DID THE TRIAL [COURT] DISREGARD CLEAR LAW AND EVIDENCE THAT [DENIG] HAD FAILED TO MEET THE CONDITIONS PRECEDENT IN THE WRITTEN AGREEMENT BETWEEN THE PARTIES? Grandview’s Brief at 3. 1 Initially, we no te that the issues presented in Grandview’s appellate brief differ from those raised in its Rule 1925(b) sta tement. Upon examination of the various issues, however, we conclude t hat the questions presented on appeal are fairly subsumed in the third e rror raised in

1 According to Pa.R.A.P. 2119(a), “[t]he argument shall b e divided into as many parts as there are questions to be argued; and shal l have at the head of each part

-- in distinctive type or in type distinctively displayed

-- the particular point treated therein, followed by such discu ssion and citation of authorities as are deemed pertinent.” We note that Gr andview’s Brief violates Rule 2119(a) in that it contains two questions but only one argument section. Nonetheless, because this violation doe s not hamper our review, we shall address Grandview’s issues. We also note, however, that Grandview attempts to argue in its brief that the tri al court improperly awarded damages for extra work beyond the scope of the contract. We agree with Denig that Grandview has waived this issue by failing to include it in its Statement of Questions Involved. See Pa.R.A.P. 2116 (“No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”).J-A08002- 14

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Grandview’s Rule 1925(b) statement. Because Grandview’ s two questions presented are inter-related, we shall address them in tandem. Here, the trial court sat as the finder of fact. Appel late review in nonjury cases implicates the following general principles:

Our appellate role in cases arising from non-jury tri al verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, [where] the issue... concerns a question of law, our scope of review is plenary. The trial court’s conclusions of law on appeal originating from a non- jury trial “are not binding on an appellate court because it is the appellate court’s duty to determine if the trial court correctly applied the law to the facts” of the case. Wyatt Inc. v. Citizens Bank of Pennsylvania , 976 A.2d 557, 564 (Pa. Super. 2009) (quoting Wilson v. Transp. Ins. Co. , 889 A.2d 563, 568 (Pa. Super. 2005) (citations omitted)). In the case at hand, we view the evidence in the ligh t most favorable to Denig, the verdict winner. Stratford v. Boland , 452 A.2d 824, 826 (Pa. Super. 1982) (citation omitted). Moreover, we will not disturb the trial court’s credibility determinations. See Atlantic LB, Inc. v. Vrbicek , 905J-A08002- 14

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A.2d 552, 557 (Pa. Super. 2006) (citations omitted) ( “Concerning questions of credibility and weight accorded the evidence at tri al, we will not substitute our judgment for that of the finder of fact.”). The genesis of this matter is Denig’s mechanics’ lien claim. The Mechanics’ Lien Law, 49 P.S. §§ 1101–1902 (the “Act”), a llows a contractor to assert a lien “for the payme nt of all debts due by the owner to the contractor or by the contractor to any of his subcontractor s for labor or materials furnished in the erection or construction, or t he alteration or repair of the improvement.” 49 P.S. § 1301. The Act include s in it s definition of contractor: “architects . . . who, by contract with the own er, express or implied, in addition to the preparation of drawings , specifications and contract documents also superintends or supervises any such ere ction, construction, alteration or repair.” 49 P.S. § 1201(4). We have explained that: [t]he statutory basis for a mechanics’ lien expressly limit s the lien to amounts owed for labor and materials only. Th e mechanics’ lien law is “intended to protect the prepaymen t labor and materials that a contractor invests in another’s property, by allowing the contractor to obtain a lien interest in t he property involved.” Matternas v. Stehman , 434 Pa.Super. 255, 642 A.2d 1120, 1124 (1994). A mechanics’ lien cannot be made the basis of recovery of unliquidated damages for breach of contract. Alan Porter Lee, Inc. v. Du-Rite Products Co. , 366 Pa. 548, 79 A.2d 218 (1951). Moreover, a mechanic’s lien proceeding is not intended to settle the contractual obligations of the parties. Matternas , supra

. See also TCI Const. Corp. v. Gangitano , 403 Pa.Super. 621, 589 A.2d 1135, 1137 (1991) (housing a ndJ-A08002- 14

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feeding of employees, in addition to costs of equipment , labor and materials, were costs that were incurred solely for t he particular project and were necessary for the work to g o forward and were properly lienable in mechanics’ lien action; claim was not an attempt to recover unliquidated damages for br each of contract); Halowich v. Amminiti , 190 Pa.Super. 314, 154 A.2d 406 (1959) (mechanics’ lien can be su stained only for work done or materials furnished and not for unliquidated dama ges for breach of contract). Instead, the mechanics’ lien law authorizes a special remedy in favor of a unique class of creditors and the liens are thus generally reviewed with a strict construction of t he statute that created them. Sampson-Miller Assoc. Companies v. Landmark Realty Co. , 224 Pa.Super. 25, 303 A.2d 43 (1973). Any questions of interpretation of the mechanics’ lien l aw should be resolved in favor of a strict, narrow construction. Denlinger v. Agresta , 714 A.2d 1048 (Pa.Super.1998). Artsmith Development Group, Inc. v. Updegraff , 868 A.2d 495, 496

– 497 (Pa. Super. 2005). Grandview challenges the award of contract administrati on fees totaling $10,000.00 to Denig. Grandview argues that 50% completion of the Project was a condition precedent to Denig receiving one -half of his contract administration fees. According to Grandview, because Den ig submitted an application certificate for payment (Trial Exhibit 32) that indicated the Project was 35% complete as of April 30, 2009, he did not fulfill the condition precedent and, consequently, was not entitled to payment for

contract administration. Grandview’s Brief at 13. The refore, Grandview complains, the trial court erred in finding that Denig was entitled to contract administration fees of $10,000.00. Grandview’s Brief at 12.J-A08002- 14

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In response, Denig argues that he completed contract admi nistration services valued at $10,000.00, which he was entitled to receive from

Grandvie w. Denig’s Brief at 6. Denig further contends that the contract administration provision refers to when Denig would bi ll for those fees; it was not a condition precedent to receipt of the contract administration fees.

Id. at 7. The contract language regarding contract administration appears in the context of billing for fees:

The fee for our services is One Hundred Fifteen Thousand Dollars ($115,000.). Prints will be billed separately at cost , however we will provide you with two sets of prints at each stage o f the design work at no cost. Building permits and other in spect fees are not included in our fee. Fees are due within fourteen (14) days of invoice and will be billed as follows:

 $8,000.00 initial payment

 $25,000.00 for the design phase (architectural, and structural, basic MEP, with outline specifications)

 $53,000.00 for the contract documents phase

 $6,000.00 for the bidding/negotiation phase

 $23,000.00 for contract administration, half at 50% completion and half at completion of construction. Preliminary Objections, 12/17/09, at Exhibit F (empha sis supplied). Applying a strict, narrow construction of the Mechanics’ L ien Law, we disagree with Grandview that 50% completion of the Pr oject was necessary for Denig to secure payment for contract administration he completed as ofJ-A08002- 14

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May 18, 2009, through a mechanics’ lien. Denig’s mechan ics’ lien was not intended to settle the contractual obligations of the parties, but to secure payment due from Grandview for contracted work that D enig completed. Furthermore, the trial court found, and the record sup ports, that adequate work had been performed to justify the $10,000.00 fo r contract

administration services. The trial court addressed the topics of contract administra tion and completed work as follows:

I concluded that at the time of [Denig’s] termination as the architect for the [P]roject, he had performed work und er the written contract for which he had not been paid in the amount of $17,710.00. While the testimony and evidence on this issue is complicated and at times confusing, [Grandview] does no t appear to be vigorously challenging this substantive cont ention. Rather, [Grandview] appears to challenge only whether an obligation to pay this amount had been triggered und er the terms of the original co ntract, sufficient to support a mechanics’ lien claim at this time. [Grandview] relies upon term s and conditions in the written contract which indicated that ce rtain lump sum payments are to be made to [Denig] upon the completion of certain percentages of work within certai n categories of work. For instance, with respect to [Denig ’s] claim for payment for contract administration work the contra ct states that [Denig] shall be paid “$23,000.00 for contract administration, half at 50 percent completion and half at completion of construction.” [Grandview] offered into e vidence documents including representations by [Denig] indicatin g that the [P]roject at or about the time of his termination was approximately 35 percent complete. These documents, however, do not constitute the entire universe of evid ence with respect to the question of the percentage of completion of any particular category of work. [Denig] himself testifie d at trial that notwithstanding representations and documentation gene rated pursuant to the contract, he believed that adequate wo rk hadJ-A08002- 14

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been completed on the written contract as to specific categ ories of work sufficient to trigger payment obligations in t he total amount of $17,710.00. While the Court is cognizant o f the fact that there exists a material factual dispute as to thi s finding, the Court finds [Denig’s] testimony credible and competent a nd capable of supporting the relief being sought as to th is issue and concludes that [Denig] has met his burden with respect t o this contention. Accordingly, I find that the evidence supports the factual finding that at the time of his termination [Denig] was owed $17,710.00 for work completed under the origina l written contract with [Grandview]. (Again, as noted above, wi thout respect for any available counterclaims or setoffs that [Grandview] may assert in subsequent proceedings). Trial Court Opinion, 7/18/13, at 2

– 3.

Given the record before us and our deferential standar d of review, we discern no abuse of discretion or legal error in the tri al court’s conclusions that Denig was entitled to $10,000.00 for contract adm inistration services. The Act allows Denig to assert a lien “for the payment of all debts due by [Grandview] to [Denig] . . . for labor or materials furnished in the erection or construction, or the alteration or repair of the impro vement.” 49 P.S. § 1301; Stratford , 452 A.2d at 825. Denig testified and presented documentary evidence that he had performed $10,000.00 worth of contract administration services as of April 2009. N.T., 3/8/13, at 51

– 54, 129

– 131,

136

– 137; Trial Exhibit 31 (4/30/09 Invoice). The trial court was free to accept Denig’s unrebutted testimony as credible in conclu ding that $10,000.00 was due by Grandview to Denig for contract administration services comple ted as of April 2009. We will not disturb the trial court’sJ-A08002- 14

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credibility determination. Atlantic LB, Inc. , 905 A.2d at 557. Grandview’s contrary arguments do not warrant relief. Judgment affirmed. WECHT, J., files a Concurring Memorandum. OLSON, J., Concurs in the Result. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary Date: 8/22/2014