Opinion
J-A06025-17 No. 2670 EDA 2016
06-19-2017
ANDREW & ELEANOR EVERETT, Appellants v. MARK MILANESE, INDIVIDUALLY AND D/B/A MILANESE REMODELING, AND MILANESE REMODELING, INC., Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered August 19, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2013-09683 BEFORE: PANELLA, SHOGAN, and RANSOM, JJ. MEMORANDUM BY SHOGAN, J.:
This is an appeal from the judgment entered in the Court of Common Pleas of Chester County on August 19, 2016, awarding damages in favor of Andrew and Eleanor Everett, Appellants, and against Milanese Remodeling, Inc. ("Milanese"). After careful review, we affirm on the basis of the trial court's March 28, 2016 Decision, supplemented by its July 20, 2016 order denying Appellants' post-trial motion.
Appellants have incorrectly identified the July 20, 2016 order denying their post-trial motions as the order on appeal. However, an appeal to this Court can lie only from judgments entered subsequent to the trial court's disposition of post-verdict motions, not from the order denying post-trial motions. Raheem v. University of the Arts , 872 A.2d 1232, 1234 n.2 (Pa. Super. 2005). Thus, this appeal is properly from the judgment entered August 19, 2016, and we have corrected the caption accordingly.
The trial court issued findings of fact and conclusions of law that include a thorough and complete narrative of the facts, which we adopt for purposes of this appeal. See Trial Court Decision, 3/28/16, at 2-15. While we will not go into exhaustive detail here, the relevant facts are as follows: In June of 2011, Andrew and Eleanor Everett ("Appellants") contracted with Milanese to construct an outdoor entertainment area, including a patio, a wet bar, awnings, lighting, a waterfall, a grill, a fire pit, a hot tub area, walkways/sidewalk, and a front stoop. Id. at 3. Mark Milanese, an officer of Milanese ("Mr. Milanese"), represented to Appellants that he was highly qualified and had substantial experience with projects like Appellants, that Milanese would do all of the work, and that all of the materials would be guaranteed and installation would be performed in accordance with the manufacturer's recommendations and specifications. Id.
Based on their conversation with Mr. Milanese, Appellants decided to have Milanese construct a concrete paver patio utilizing Cambridge brand pavers and accessories. The written contract states that "the installation of your home improvement will be performed in accordance with all of the individual manufacturer's specifications and recommendations." Trial Court Decision, 3/28/16, at 5. The original contract price for the patio and the outdoor improvements was $69,750.00. Id. Appellants requested additional work throughout the course of the project, resulting in an additional cost of $8,500.00. Id. The only actual work performed by Milanese was the awning installation. All other work was performed by Michael White ("White"), a subcontractor. Id. at 6.
In February of 2012, Appellants requested Milanese to add a pizza oven to their outdoor area. Milanese agreed to install a Cambridge pizza oven kit for $13,500.00. Trial Court Decision, 3/28/16, at 9. The actual construction work for the oven was performed by White. Id. at 10.
Almost two years after completion of the project, in August of 2013, Appellants notified Milanese that the patio was "puddling." Trial Court Decision, 3/28/16, at 10. Mr. Milanese visited the project after a rainy day and did not observe any puddling. Mr. Milanese returned a few days later with White and a representative from Cambridge. Appellants complained about deficiencies in the subbase under the patio, particularly in the area where the patio met the foundation of the house. Mr. Milanese indicated that he would address the issue and asked Appellants to produce a list of other problems so that Milanese could address them at one time. Id. at 10-11. Appellants responded that they had already secured a proposal from another contractor to completely remove and replace the patio and accessories and that Milanese would not be permitted to return to the jobsite to correct the problems. Id. at 11.
Appellants filed a complaint against Milanese and Mr. Milanese, individually, for breach of contract, breach of warranty, violations of the Home Improvement Consumer Protection Act and Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), and for certain misrepresentations made by Mr. Milanese. In October of 2015, the trial court conducted a bench trial. Both sides presented expert witnesses. After considering the testimony, the trial court announced that it was not inclined to award Appellants the cost of complete removal and reconstruction of the patio as they requested. N.T., 11/10/15, at 3. The trial court credited the testimony that water drained properly from the paver surfaces and that any extant problems could be repaired. The court thereby directed the parties to secure estimates for the costs of correcting the deficiencies in the project. Id. at 7.
73 P.S. §§ 517.1, et seq. and 73 P.S. §§ 201.1, et seq., respectively.
A hearing on the issue of damages was held on March 21, 2016. Appellants submitted an affidavit from an expert witness who opined that the repairs would cost between $34,646.00. and $42,721.00. N.T., 3/21/16, at 4. Milanese's expert testified that he prepared a report calculating the cost of repairs at $2,303.36. Id. at 58; Exhibit D-14.
On March 28, 2016, the trial court issued findings of fact and conclusions of law and awarded Appellants $16,228.00 in damages—the amount it deemed necessary to fix the defective aspects of the patio. Appellants filed a post-trial motion, challenging certain of the trial court's factual findings and legal conclusions. The trial court held oral argument on the issues raised in the motion, after which it responded to Appellants' assertions of error and denied the motion. Order, 7/20/16. Judgment was entered against Milanese only on August 19, 2016. Appellants timely appealed.
Appellants raise the following issues for appellate review:
I. Were the factual findings of the trial court based upon competent evidence?Appellants' Brief at 4.
II. After finding a breach of a construction contract and a violation of the Unfair Trade Practices and Consumer Protection Law, may a trial court fail to award the reasonable cost of construction and completion in accordance with the contract?
III. Does the trial court err in failing to find a breach of warranty, where [Appellees] made false statements of fact with respect to the quality or condition of the goods and services provided?
IV. Does a trial court err in calculating a damages award under the Pennsylvania Unfair Trade Practices and Consumer Protection Law when it disregards the deterrence function and remedial purposes of the statute?
V. Does a trial court err in assessing an award of attorney fees under the UTPCPL when it fails to consider the remedial purpose of the statute and the factors set out by relevant caselaw?
VI. Does a trial court err in failing to find a corporate officer liable under the participation theory, when that corporate officer actively participates in misrepresentation?
VII. Does a trial court err in failing to find a corporate officer liable under the "catchall" section of the UTPCPL, when the corporate officer engages in fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding?
VIII. Does a trial court err in failing to award interest after a finding of breach of contract?
After reviewing Appellants' Pa.R.A.P. 1925(b) statement, the trial court entered an order stating that it was relying upon its March 28, 2016 Decision to address the errors alleged in the 1925(b) statement. --------
This Court's standard of review on appeal following a bench trial is well settled:
Our appellate role in cases arising from non-jury trial 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.Stephan v. Waldron Electric Heating and Cooling LLC , 100 A.3d 660, 664-665 (Pa. Super. 2014) (citation and quotation omitted). Furthermore, the trial court, as the finder of fact, is free to believe "all, part[,] or none of the evidence presented." Ruthrauff , Inc. v. Ravin , Inc., 914 A.2d 880, 888 (Pa. Super. 2006). "Issues of credibility and conflicts in evidence are for the trial court to resolve; this Court is not permitted to reexamine the weight and credibility determinations or substitute our judgment for that of the factfinder." Id. (citation and internal quotation marks omitted).
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.
Appellants first challenge certain of the factual findings of the trial court. However, the crux of Appellants' contest is their disagreement with the trial court's assessment of the competing experts' opinions concerning the feasibility of repairing the patio's defects. Thus, Appellants essentially ask this Court to disturb the trial court's credibility determinations and weigh the evidence in favor of the inferences that Appellants propose. This we cannot do. The fact-finder, having heard the witnesses, is entitled to weigh the evidence and evaluate its credibility. Baehr v. Baehr , 889 A.2d 1240, 1245 (Pa. Super. 2005). As the trial court's credibility determinations are supported by the evidence, we discern no abuse of discretion by the trial court. See Morgante v. Morgante , 119 A.3d 382, 395 (Pa. Super. 2015) (this Court will not reverse credibility determinations that are supported by the evidence.).
Similar reasoning limits review of Appellants' issues four (the trial court's calculation of damages under the UTPCPL) and seven (the trial court's failure to find Mr. Milanese individually liable under the UTPCPL "catch-all" provision). First, Appellants contend that the trial court's decision on treble damages disregarded the deterrence function and remedial purpose of the UTPCPL. Appellants' argument is devoid of merit. There is no obligation for a trial court to award treble damages. "Our Supreme Court has recognized that trial courts' discretion to award treble damages must be tempered by the facts demonstrated." Dibish v. Ameriprise Financial , Inc., 134 A.3d 1079, 1091 (Pa. Super. 2016) (quoting Schwartz v. Rockey , 932 A.2d 885, 898 (Pa. 2007)). Here, the trial court expressly referenced the deterrence factor and found it inapplicable because the evidence did not demonstrate that Milanese purposely ignored the manufacturer's standards for installation of the Cambridge pavers. Trial Court Decision, 3/28/16, at 21. There was no abuse of the trial court's discretion.
The trial court's decision to relieve Mr. Milanese of personal liability under the UTPCPL was also premised on a credibility determination. The trial court found Mr. Milanese's statements regarding his expertise and experience were merely puffery not uttered to defraud, rather than misrepresentations that he held a particular license or certification. Trial Court Decision, 3/28/16, at 26-27. There was no abuse of discretion in the trial court's credibility assessment.
In their second issue, Appellants argue that the trial court erred in calculating damages in that it awarded neither the reasonable cost of completion of the project in accordance with the contract "nor the difference between the value that the product contracted for would have had and the value of the performance that has been received by [Appellants], if construction and completion in accordance with the contract would involve unreasonable economic waste." Appellants' Brief at 19. After considering the testimony of the construction professionals, the trial court concluded that a repair of the patio defects was possible for a reasonable cost and that amount was awarded to Appellants. We affirm the trial court's damages assessment based upon its conclusion that "the defective performance of a building contract [is] often measured by looking to the 'cost of . . . correcting the defects by another contractor.'" Order, 7/20/16, at unnumbered 4 (internal citation omitted). There was no error in the trial court's rationale.
Appellants' third assertion of error is that the trial court improperly rejected their breach of warranty claim. The trial court dismissed Appellants' breach of warranty claim because there was no specific warranty provision in the contract that would support an independent claim for breach of warranty and that Appellants' claim in this regard was merely a reiteration of its breach of contract claim. Trial Court Decision, 3/28/16, at 17. On appeal, Appellants argue that a specific written provision is not necessary to pursue a breach of warranty claim and that the evidence that Milanese failed to follow manufacturer's recommendations in constructing the patio establishes their claim for breach of warranty. Appellants do not explain how this argument differs from that supporting its breach of contract claim; therefore, the trial court did not err in rejecting the breach of warranty claim.
Appellants next challenge the trial court's award of attorneys' fees in the amount of $10,556.00 as inadequate given their actual fees of $42,225.00. We review for an abuse of discretion. Boehm v. Riversource Life Insurance Co., 117 A.3d 308, 335 (Pa. Super. 2015). The trial court reduced the amount of fees awarded to Appellants because their UTPCPL claim overlapped their breach of contract claim. Trial Court Decision, 3/28/16, at 22. This is an appropriate consideration under Boehm (whether plaintiff has pursued other theories of recovery in addition to a UTPCPL claim "should [be] given consideration" in arriving at an appropriate award of fees.) Id. Therefore, there was no abuse of discretion.
In their sixth issue, Appellants aver that Mr. Milanese is personally liable under a participation theory. Appellants did not raise liability under this theory in their Pa.R.A.P. 1925(b) statement. Accordingly, this issue is waived. See Greater Erie Industrial Development Corp. v. Presque Isle Downs , Inc., 88 A.3d 222, 223 (Pa. Super. 2014) ("Any issues not raised in a 1925(b) statement will be deemed waived.").
Appellants' final argument is that the trial court erred by failing to award interest. We affirm the trial court's decision in this regard based upon its well-reasoned response to this assertion:
[Appellants] allege that the court erred in not awarding them interest on their breach of contract damages and request that the court "modify/mold/change the award to include interest." [Appellants'] proposed findings of fact and conclusions of law which were presented to the court failed to include any explanation or analysis of [Appellants'] right to an award of interest. [Appellants] simply asserted as follows at proposed conclusion of law (7):
f. Plaintiffs are entitled to recover the following damages
* * *
iv. Interest in the amount of $ __________.
[Appellants] then, and now, have failed to identify for the court exactly what type of interest they seek and at what amount or rate and most important, the justification for such an award. Although parties to a contract may request pre-or-post judgment interest, it is not the work of the court to decipher or guess at the damages sought by a party or the reasons therefore.Order, 7/20/16, at unnumbered 5-6. We agree with the trial court that Appellants failed to proffer a sufficient basis supporting an interest award.
Accordingly, for the above-stated reasons and after careful review of the parties' arguments and the certified record, we affirm on the basis of the trial court's March 28, 2016 Decision, supplemented by its July 20, 2016 order denying Appellants' post-trial motion. The parties are directed to attach copies of those writings to all future filings.
Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 6/19/2017
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