Total Home Care and Inspection v. Carlevale, P. ( 2017 )

J-S46039-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TOTAL HOME CARE AND : IN THE SUPERIOR COURT OF
INSPECTION, INC. : PENNSYLVANIA
:
:
v. :
:
:
PAUL A. CARLEVALE T/A C&Z :
CONSTRUCTION : No. 1292 MDA 2016
:
Appellant :
Appeal from the Judgment Entered October 21, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2011-CV-11730
TOTAL HOME CARE AND : IN THE SUPERIOR COURT OF
INSPECTION, INC. : PENNSYLVANIA
:
Appellant :
:
:
v. :
:
: No. 1358 MDA 2016
PAUL A. CARLEVALE T/A C&Z :
CONSTRUCTION :
Appeal from the Judgment Entered October 21, 2016
In the Court of Common Pleas of Dauphin County
Civil Division at No(s): 2011-CV-11730
BEFORE: BOWES, OLSON, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED JULY 25, 2017
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S46039-17
Appellant/Cross-Appellee, Paul A. Carlevale t/a C&Z Construction
(Carlevale) appeals, after a bench trial, from the Judgment entered in the
Court of Common Pleas of Dauphin County on October 21, 2016, following
the trial court’s Order of July 21, 2016, awarding damages to
Appellee/Cross-Appellant, Total Home Care and Inspection, Inc. (“Total
Home Care”), in the amount of $33,458.29, with interest accruing at a rate
of 6% until paid. Total Home Care cross-appeals from the entry of the
Judgment.1 Following our review, we affirm in part, reverse in part and
remand for further proceedings.
The trial court set forth the facts herein as follows:
FACTS
This case involved claims by Total Home Care for unpaid
construction and remodeling services performed as a
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1
Carlevale filed his notice of Appeal on August 8, 2016, and Total Home Care
filed its Notice of Cross Appeal on August 18, 2016. Although the parties
purported to appeal from the trial court’s Order dated July 21, 2016, and
entered on July 26, 2016, in a Per Curiam Order entered on October 19,
2016, this Court indicated that final judgment had not been entered on the
trial court docket as required by Pa.R.A.P. 301, (citing Prime Medica
Assoc. v. Valley Forge Ins. Co., 970 A.2d 1149 (Pa.Super. 2009), appeal
denied, 989 A.2d 918 (Pa. 2010) (stating order denying post-trial motions is
interlocutory and not appealable until entry of final judgment)). We directed
Total Home Care or Carlevale to praecipe the Prothonotary of the trial court
to enter final judgment and file with the Prothonotary of this Court, within
ten days, a certified copy of the trial court docket reflecting the entry of
judgment. We further indicated that upon compliance with Pa.R.A.P. 301,
the notice of appeal previously filed would be treated as filed after the entry
of judgment. Final Judgment was entered on October 21, 2016, and the
appeal paragraph reflects the appeal and cross-appeal are from that
Judgment.
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subcontractor for Carelevale [sic] at about six different
properties. The subject of Total Home Care's direct claims was
the work performed as following:
a) Oasis Club - claimed balance due of $60,190.24
b) Roberts Valley Road - claimed balance due of $5,709.24
c) 1239 Market Street - claimed balance due of $3,420.37
d)2526 North 6th Street - claimed balance due of
$1,795.00
e) 1829 Bellevue Road - claimed balance due of $1,354.11
f) 3626 Derry Street - claimed balance due of $161.20
Total Home Care also sought interest at 18% pursuant to
the alleged past practices of the parties.
In response to the Complaint for the unpaid services,
Carlevale filed a counterclaim seeking damages for alleged
defective work performed by Total Home Care. The subject of
Carelevale's [sic] counterclaim was the following:
a) Fureman home - claimed balance due of $2,500.00
b) Ramsey home - claimed balance due of $500.00
c) Taylor home - claimed balance due of $620.00
d) Mitchell home - claimed balance due of $600.00
e) Starnes home - claimed balance due of $1,360.00
f) 1775 Horseshoe Pike - claimed balance due of
approximately $24,000.00.
On July 21, 2016, following a non-jury trial, this [c]ourt
entered a verdict in favor of Total Home Care in the amount of
$33,458.29, interest accruing at 6% annually. With respect to
the Oasis Club job, we found there were two separate contracts -
one to do the HVAC work, totaling $30,800, and another to do
the rough plumbing work. Evidence was produced at trial
showing a down payment of $15,400 made from [Carlevale] to
[Total Home Care] for the HVAC work, leaving $15,400 still
owed. See Plaintiff's Exhibits 3 and 4. Further, Stephen Borne,
owner of Total Home Care, testified the HVAC work on the Oasis
Club job was "90-95[%]" complete. N.T. Trial, 7/21/16, at 26.
As for the plumbing work, the final invoice which [Total Home
Care] gave to [Carlevale] showed $9,395.00 was owed for work
done prior to [Total Home Care] being locked out, See Plaintiff's
Exhibit 5. We also heard testimony indicating [Carlevale] never
took issue with the quality of the plumbing work done by [Total
Home Care]. See N.T. Trial, 7/21/16, at 33. Thus, this [c]ourt
found $24,795.00 was owed for the Oasis Club job - $15,400 on
the HVAC contract and $9,395.00 on the plumbing contract.
The Roberts Valley Road job required [Total Home Care] to
install a new HVAC system on an addition to a residential home.
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[Total Home Care’s] documents indicated the estimate for this
job was $9,400. See Plaintiff's Exhibit 6. However, evidence
presented at trial showed a partial payment was made in the
amount of $7,000, leaving a $2,400 balance due. See Plaintiff's
Exhibit 7; N.T. Trial, 7/21/16, at 39-40. Thus, this [c]ourt found
for [Total Home Care] in the amount of $2,400.00
The 1239 Market Street job called for [Total Home Care] to
do the rough plumbing work on the second and third floors of
what was to be the Rebound Bar. [Total Home Care] presented
two documents - one an invoice for the work done on the second
floor, the other an invoice for work done on the third floor. See
Plaintiff's Exhibits 8 & 9. The invoice for the second floor,
Plaintiff's Exhibit 8, showed a balance due of 1,514.76; the
invoice for the third floor, Plaintiff's Exhibit 9, was paid in full.
Further, Mr. Borne testified he never received any complaints
about the work performed on the Market Street job. Thus, this
[c]ourt found in favor of [Total Home Care] in the amount of
1,514.76.
The 2526 North 6th Street job required [Total Home Care]
to do the rough plumbing work on a new bathroom. [Total Home
Care] presented an invoice for this job showing both partial
payment made by [Carlevale] as well as the outstanding balance
due-$653.52. See Plaintiff's Exhibit 10. Further, Mr. Borne
testified that he received no complaints about the quality of the
work done. Thus, this [c]ourt found for [Total Home Care] in the
amount of $653.52.
Next, the 1829 Bellevue Road job required [Total Home
Care] to do a "very simple" plumbing job, costs totaling $588.
See N.T. Trial, 7/21/16, at 52-53. Despite completing the work,
[Carlevale] made no payment to [Total Home Care] for this job
and the entire balance remained outstanding. Mr. Borne testified
he never received any complaints about the work from
[Carlevale]. Id., at 53. Accordingly, this [c]ourt found for [Total
Home Care] on this project in the amount of $588.
Lastly, the 3626 Derry Street job related to a service call
made by [Total Home Care], at [Carlevale’s] request, due to lack
of heat. The only work performed at this property by [Total
Home Care] was re–lighting the pilot light. Despite [Carlevale’s]
contention that there was an "understanding" this work would be
performed for free, [Total Home Care] sent [Carlevale] an
invoice totaling $70. See Plaintiff's Exhibit 12. The full amount of
this invoice remained unpaid. Thus, this [c]ourt found for [Total
Home Care] on this project in the amount of $70.
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In reaching its final determination, it was the [c]ourt's
understanding that [Total Home Care] was not being paid for
any of the above-mentioned projects due to the hold up at the
Oasis Club. In declining to accept [Carlevale’s] counterclaims, we
found [Carlevale] had "failed to produce sufficient evidence on
any of the counterclaims with respect to the various properties
of [the] homeowners. [Specifically,] there's been no expert
testimony that the work was defective, which is required." See
N.T. Verdict., 7/21/2016, at 2-3. Each party filed motions for
reconsideration, which were denied.
Trial Court Opinion, filed 1/11/17, at 1-4.
On November 1, 2016, this Court sua sponte consolidated the appeal
filed in No. 1292 MDA 2016 and the cross-appeal filed at No. 1358 MDA
2016. The parties and the trial court have complied with Pa.R.A.P. 1925.
In his appellate brief, Carlevale presents the following Statement of
Questions Involved:
I. Did the Honorable Trial Court err when it implicitly
determined that [Total Home Care] met the required burden of
proof to establish the existence of a time and material contract,
particularly when [Total Home Care] failed to introduce any
evidence of the “time” aspect of the purported contracts, and
awarded [Total Home Care] $33,458.20?
II. Did the Honorable Trial Court err in the failure to grant
[Carlevale’s] motion for directed verdict and non-suit in favor of
[Carlevale] as [Total Home Care] failed to meet his burden of
proof?
III. Did the Honorable Trial Court err in its calculation of
damages?
IV. Did the Honorable Trial Court err in failing to issue a bench
warrant compelling the testimony of Gary Dobrinoff?
Brief for Carlevale at 4 (boldface type omitted).
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When considering the issues Carlevale has raised, we employ a well-
settled scope and standard of review:
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 the
trial judge in a non-jury case must be given the same weight
and effect on appeal as the verdict of a jury, and the findings will
not be disturbed on appeal unless predicated upon errors of law
or unsupported by competent evidence in the record.
Furthermore, our standard of review demands that we consider
the evidence in a light most favorable to the verdict winner.
Baney v. Eoute, 784 A.2d 132, 135 (Pa.Super. 2001) (citations omitted).
This appeal concerns the interpretation and application of numerous
purported contracts between the parties. The interpretation of a contract
poses a question of law, and our scope of review is plenary. Charles D.
Stein Revocable Trust v. General Felt Industries, Inc., 749 A.2d 978,
980 (Pa.Super. 2000). As this Court reiterated in Ramalingam v. Keller
Williams Realty Group, Inc., 121 A.3d 1034, 1046 (Pa.Super. 2015), the
fundamental rule in interpreting a contract’s meaning is to ascertain and
give effect to the contracting parties’ intent and the parties' intent in an
agreement is to be regarded as being embodied in the writing itself.
The record herein reveals the parties’ agreements were both orally
based and confirmed in writing in the form of estimates, quotations and/or
invoices. In finding no merit to Carlevale’s first issue, the trial court
explained that after listening to the testimony pertaining to the agreements
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at issue and considering the documentary evidence submitted at trial, it
determined Total Health Care had produced sufficient evidence to establish
the existence of “the time and materials contracts.” Trial Court Opinion,
filed 1/11/17, at 6. Notwithstanding, we find Carlevale waived this issue for
appellate review.
Pennsylvania Rule of Appellate Procedure 1925 provides that a concise
statement of matters complained of on appeal “shall concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii). It is
well-settled that “[i]ssues not included in the Statement and/or not raised in
accordance with the provisions of this [Rule] are waived.” Pa.R.A.P.
1925(b)(4)(vii); Krebs v. United Refining Co. of Pa., 893 A.2d 776, 797
(Pa.Super. 2006). Therefore, a concise statement on appeal must be specific
enough for the trial court to identify and address the issue or issues that the
appellant wishes to raise on appeal. In re A.B., 63 A.3d 345, 350
(Pa.Super. 2013).
This Court has considered the question of what constitutes a sufficient
Rule 1925(b) statement on many occasions and stated an appellant's
concise statement must be specific enough for the trial court to identify and
address the issue or issues an appellant wishes to raise on appeal.
Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa.Super. 2011), appeal
denied, 613 Pa. 642, 32 A.3d 1275 (2011). Further, this Court may find
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waiver where a concise statement is too vague. Id. When a trial court has
to guess what issues the appellant wishes to appeal, the concise statement
is too vague for meaningful review. “A Concise Statement which is too
vague to allow the court to identify the issues raised on appeal is the
functional equivalent of no Concise Statement at all.” Commonwealth v.
Dowling, 778 A.2d 683, 686-87(Pa.Super. 2001).
With respect to issues not included in a concise statement, our
Supreme Court has instructed that this Court has no discretion in choosing
whether to find waiver. Waiver is mandatory, and this Court may not craft
ad hoc exceptions or engage in selective enforcement. City of
Philadelphia v. Lerner, ___ Pa. ____, 151 A.3d 1020, 1024 (2016)
(quoting Commonwealth v. Hill, 609 Pa. 410, 426, 16 A.3d 484, 494
(2011).
In his Concise Statement of Matters Complained of on Appeal,
Carlevale averred:
A. The Honorable Trial Court erred when it awarded [Total
Home Care] $33,458.20 based upon [Total Home Care’s] claims
of a breach of time and material contracts with [Carlevale].
B. The Honorable Trial Court erred when it implicitly
determined that [Total Home Care] met the required burden of
proof to establish the existence of each of the time and material
contracts contained in [Total Home Care’s] complaint.
C. The Honorable Trial Court erred when it implicitly
determined that [Total Home Care] had met the required burden
of proof to establish the existence of a time and material
contract when [Total Home Care] failed to introduce any
evidence of the “time” aspect of the purported contracts which
were attached to [Total Home Care’s] complaint.
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Concise Statement of Matters Complained of on Appeal, filed 9/1/16, at ¶¶
A-C. (emphasis added).
Despite the fact that the two-day, non-jury trial concerned
construction and remodeling services Total Home Care had performed for
Carlevale as a subcontractor at numerous locations, Carlevale failed to
assert a specific challenge in his Rule 1925(b) statement to the “time”
element with regard to any of the projects about which the trial court heard
evidence. In fact, Carlevale at the same time refers to both the singular
“contract” and the plural “contracts” in his statement and challenges in
boilerplate fashion the “time” and/or “material” aspects thereof. Because
Carlevale failed to specify how the “time” and/or “material” aspect of any
particular project was lacking, we find this issue to be waived. See
Dowling, supra.In addition, Carlevale devotes just over a page of text to this
argument wherein he only generally states that Total Home Care failed to
establish with tangible evidence the “existence of the essential elements of
the time and material contract with [Carlevale]… specifically the time
portion.” Brief for Appellant at 11. Carlevale ignores the testimonial
evidence to the contrary and posits Total Home Care’s failure to list or
provide any time records or to secure any signed estimates or agreements
made it impossible for the trial court properly to assess damages. Brief for
Carlevale at 12. Yet, nowhere in his argument did Carlevale cite to specific
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“time” provisions of any of the parties’ agreements which had not been
established, nor did he clarify which project in any was unsupported by
sufficient evidence. Moreover, he provides no citation to relevant authority
pertaining to this specific issue.
[W]here an appellate brief fails to provide any discussion of a
claim with citation to relevant authority or fails to develop the
issue in any other meaningful fashion capable of review, that
claim is waived. It is not the obligation of [an appellate court ...]
to formulate [a]ppellant's arguments for him. Moreover, because
the burden rests with the appealing party to develop the
argument sufficiently, an appellee's failure to advocate for
waiver is of no moment.
Wirth v. Commonwealth, 626 Pa. 124, 149-150, 95 A.3d 822, 837 (2014)
(quotation marks and citations omitted). As such, Carlevale has waived this
issue for lack of development in his appellate brief as well.2
Carlevale next contends the trial court erred in failing to grant his
motions for a nonsuit and a directed verdict. A motion for compulsory
nonsuit allows a defendant to test the sufficiency of a plaintiff's evidence.
Harnish v. School District of Philadelphia, 557 Pa. 160, 163, 732 A.2d
____________________________________________
2
In his reply brief, Carlevale reasserts his general allegations and supports
them with decisions of the court of common pleas and several cases from
the third circuit; however, this Court is not bound by cases decided by a
court of common pleas, even if those decisions are directly on point.
Goddard v. Heintzelman, 875 A.2d 1119, 1121 (Pa.Super. 2005) (holding
this Court is not bound by decisions of the court of common pleas and is free
to reach contrary holdings). In addition, we are not bound by the decisions
of federal intermediate appellate court panels. Cianfrani v. Johns-Manville
Corp., 482 A.2d 1049, 1051 (Pa.Super. 1984).
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596, 598 (1999). A trial court may enter a compulsory nonsuit on any and
all causes of action if, at the close of the plaintiff's case against all
defendants on liability, the court finds that the plaintiff has failed to establish
a right to relief. Pa.R.C.P. No. 230.1 (a), (c): see also Biddle v.
Johnsonbaugh, 664 A.2d 159 (Pa.Super. 1995); Orner v. Mallick, 639
A.2d 491, 492 (Pa.Super. 1994). A sufficiency of the evidence claim also
may be raised through a motion for a directed verdict. Lear, Inc. v. Eddy,
749 A.2d 971 (Pa.Super. 2000).
After Total Home Care rested, Carlevale brought a motion for a
“directed verdict on some of these claims.” N.T. Trial, 7/14/16, at 113.
Specifically, counsel asserted:
I guess I’ll make the motion for directed verdict on some of
these claims, Your Honor. Again, they’re contract claims. We’ve
heard no testimony, again, and Plaintiff we feel has failed to
meet their burden of proof on the first Oasis Club claim of 9395;
failed to meet their burden on the Rebound Bar, again a time-
and-material job; as well as Hairston, Smith, and those claims.
We ask that you give a directed verdict because Plaintiff has not
met his burden.
N.T. Trial, 7/14/16, at 113. The trial court denied the motion, and the
proceedings continued. Id.The trial court stated in its Rule 1925(a) Opinion it denied Carlevale’s
motions for both directed verdict and nonsuit. Trial Court Opinion, filed
1/11/17, at 6; however, while Carlevale argued during closing arguments
that Total Home Care had presented insufficient evidence to prove its claims,
our review of the record reveals Carlevale did not challenge the sufficiency of
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the evidence Total Home Care presented regarding its burden of proof either
orally or by written motion for a directed verdict at the close of evidence.
Indeed, Carlevale points to nowhere in the record or in the notes of trial
testimony where such motion had been raised.
[I]f an appellant has properly preserved an issue for appellate
review, the appellant must include in his or her brief a
“statement of the case” including a “statement of place of raising
or preservation of issues.” Pa.R.A.P. 2117(c). This information
must also be referenced in the argument portion of the appellate
brief. Pa.R.A.P. 2119(e). Commonwealth v. Baker, 963 A.2d
495, 502 n. 5 (Pa.Super.2008), appeal denied, 606 Pa. 644, 992
A.2d 885 (2010). Further, “it is not the responsibility of this
Court to scour the record to prove that an appellant has raised
an issue before the trial court, thereby preserving it for appellate
review.” Id. at 502 n. 6 (citations omitted).
Phillips v. Lock, 86 A.3d 906, 920–21 (Pa.Super. 2014). As it appears
Carlevale did not present a motion for a nonsuit or a motion for a directed
verdict to the trial court at the close of evidence, he has not preserved for
appellate review his claim the trial court erred in denying the same. Id.Moreover, Carlevale’s argument at trial pertained to Total Home Care’s
alleged failure to establish the existence of contracts on the enumerated
jobs, while on appeal he posits the evidence to establish the “time” element
thereof, as well as with regard to projects he failed to enumerate at the time
he presented the oral motion for “directed verdict,” was lacking. 3 As such,
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3
While at trial Carlevale mentioned only “the first Oasis Club,” the “Rebound
Bar,” “Hairston” and “Smith,” in his appellate brief, he discusses why the
trial court erred in failing to grant his motions for “directed verdict and non-
(Footnote Continued Next Page)
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we find Carlevale has waived his right to raise this issue on appeal for this
reason as well. See Commonwealth v. Hanford, 937 A.2d 1094, 1098 n.3
(Pa.Super. 2007), appeal denied, 956 A.2d 432 (Pa. 2008) (new legal
theories cannot be raised for first time on appeal); Pa.R.A.P. 302(a).
To the extent Carlevale may be deemed to have preserved a claim
that Total Home Care failed to present sufficient evidence as to the time it
spent on the Oasis Club, Rebound Bar, Hairston and Smith projects, this
Court has long recognized that in a bench trial, matters of credibility are
within the province of the trial court and its findings will not be disturbed if
those findings are supported by competent evidence in the record. See
Hollock v. Erie Ins. Exch., 842 A.2d 409, 413–14 (Pa.Super. 2004),
appeal dismissed as improvidently granted, 903 A.2d 1185 (Pa. 2006)
(citation omitted). The trial court’s findings are especially binding on appeal
where they are based upon the witnesses’ credibility, unless it appears that
the trial court abused its discretion, that its findings lack evidentiary support
or that the court capriciously disbelieved the evidence. Christian v.
Yanoviak, 945 A.2d 220, 225 (Pa.Super. 2008).
The trial court questioned Steven Borne, the owner of Total Home
Care, as to the manner in which Total Home Care kept time sheets. Mr.
_______________________
(Footnote Continued)
suit” in connection with the “Oasis Club Project,” “Peterson-Roberts Valley
Road,” “Rebound Bar-1239 Market Street,” “Ethel Hairston- 2526 North 6th
Street,” and “Burnell Smith-1829 Bellevue Road.” Brief for Carlevale at 13-
19.
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Borne explained that when a crew was sent to a work site, its members filled
out a daily, preprinted time sheet indicating the number of hours worked.
N.T. Trial, 7/14/16, at 66-67. These sheets were then utilized to generate
paychecks for the employees after which they were placed in a time-sheet
file. Id. at 69. Mr. Borne indicated he had retained time sheets dating back
to 2006 or 2007. Id.
When Carlevale questioned why Total Home Care had not produced
those time sheets, counsel for Total Home Care objected and explained that
the documentation was made available to Carlevale, although the latter
chose not to review it. Id. at 70-71. Counsel for Carlevale first claimed he
could not remember his client having been given an opportunity to review
the time sheets. Counsel later admitted that “maybe” he had and retorted
that as Total Home Care bore the burden of proof, Carlevale did not need to
do so. Id. at 71-72. In response, counsel for Total Home Care read into the
record an email sent to counsel for Carlevale on February 10th 4
in response
to a discovery request which read as follows:
With regard to the request for employee time records, my client
tells me that they would fill a file drawer and are quite
voluminous. I have not seen them but I’m told they can be
made available to you to be viewed at my office at your
convenience. Let me know how you want to handle that. Thank
you. John.
Id. at 72.
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4
Presumably, the year was 2016.
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The record reflects the trial court considered Mr. Borne’s testimony
that detailed time sheets were kept and offered to Carelvale, although he
chose not to review them, along with the testimony of various defense
witnesses and exhibits of the parties pertaining to the duration of each
project, all of which this Court has reviewed and which the trial court found
to be credible. The trial court clearly articulated its reasons for finding the
evidence to support Total Home Care’s claims, and we will not disturb the
credibility determinations of the trial court sitting as the finder-of-fact. See
Yanoviak, supra, 945 A.2d at 225; Hollock, supra, 842 A.2d at 413.
Accordingly, Carlevale is not entitled to relief on this issue.
Carlevale next avers the trial court erred in its calculation of damages.
The duty of assessing damages is within the province of the fact-
finder and should not be interfered with unless it clearly appears
that the amount awarded resulted from partiality, caprice,
prejudice, corruption or some other improper influence.
Generally, a verdict will not be disturbed merely on account of
the smallness of the damages awarded or because the reviewing
court would have awarded more. To support the granting of a
new trial for inadequacy, the injustice of the verdict should stand
forth like a beacon. So long as the verdict bears a reasonable
resemblance to the damages proved, it is not the function of the
court to substitute its judgment for that of the jury.
Epstein v. Saul Ewing, LLP, 7 A.3d 303, 315 (Pa.Super. 2010) (citation
omitted).
In his appellate brief, Carlevale disputes only the largest portion of the
overall damage award which pertained to the Oasis Club HVAC project;
therefore, he has waived a challenge to any remaining amount of the
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damage award for lack of development. See Wirth, supra. When disputing
the Oasis-HVAC damage award, Carlevale maintains the project was not a
“time and material” one and that the initial contract price was $30,800.00.
Carlevale posits Total Home Care unjustifiably added $8,100.00 to the initial
amount and that when calculating damages the trial court should have
deducted that sum from the invoice, credited Carlevale for a $15,400.00
payment and credited Carlevale for an additional $15,000.00 for Total Home
Care’s incomplete work leaving a balance of $400.00. Carlevale contends the
trial court’s findings to the contrary are based solely upon the testimony of
Mr. Borne which was contradicted by documentary evidence in the form of
invoices generated by Mr. Borne himself. Brief for Appellant at 21-22.
The trial court provided the following explanation for its calculation of
damages:
As mentioned, the [c]ourt awarded Total Home Care
damages on the HVAC contract in the amount of $8,100. The
initial contract price for the HVAC work was $30,800. Contrary
to Carlevale’s contention, the [c]ourt did credit Carlevale with
the half-down deposit, which reduced the balance due to
$15,400. After the down payment was made, but before the
work was completed, Total Home Care had been informed that
Carlevale was no longer working there, and Total Home Care
was locked out of the Oasis Club due to an insurance dispute
with the property owner; thus unable to finish the job.
According to Stephen Borne, the Owner of Total Home Care, the
HVAC work was “90-95% complete.” N.T. Trial, 7/21/16, at 85-
86. Following the lock-out, in an attempt to recoup time and
materials costs, Total Home Care negotiated a reduced payment
with Carlevale. Rather than the $15,400 that remained
outstanding, Total Home Care agreed to accept $8,100, which
represented their time and materials costs. The [c]ourt found
unpersuasive Carlevale’s argument that a $15,000 credit had
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been given, and the balance due should be $400. See N.T. Trial,
7/21/16, at 80-85. Thus, the [c]ourt awarded Total Home Care
damages for the unpaid HVAV work in the amount of $8,100, the
reduced payment agreed upon by the parties. The [c]ourt
reasoned “The verdict could have been higher… but [the [c]ourt
gave] Carlevale every benefit of the doubt that [it could] and
us[ed] the $8,100 figure[.]” N.T. Verdict, 7/21/16, at 2.
Trial Court Opinion, filed 1/11/17, at 6-7.
Upon review of the evidence in a light most favorable to Total Home
Care, we find the trial court’s award of principal damages is supported by
the record evidence.5 A review of the invoices pertaining to the Oasis Club
project reflects the initial price for labor and materials for the HVAC aspect
thereof was $30,800.00, and a deposit for half that amount was paid at the
outset of the contract. See Defense Exhibit # 8 at 1. Mr. Borne testified
that in an effort to receive some remuneration for the unpaid balance, Total
Home Care provided Carlevale, upon his request, with its “absolute flat cost
on the job, what [Total Home Care] had actually in materials and man hours
at cost.” N.T. Trial, 7/14/16, at 83. As a result of these negotiations, Mr.
Borne explained, “[t]he 15,000 credit was against the top thirty eight,” and
the balance of $8,100.00 constituted the amount Mr. Borne provided
Carlevale in an effort to get paid, despite a typographical error on the
invoice which listed a “credit” in the amount of $15,000. Id. at 84-85. Thus,
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5
Notwithstanding, as we shall discuss, infra, we find the trial court erred in
awarding interest at the statutory, as opposed to the contractual, rate.
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the trial court’s decision to reduce the Oasis Club HVAC damages is
supported by sufficient evidence.6 No relief is due.
Finally, Carlevale maintains the trial court erred in failing to issue a
bench warrant for the appearance of Gary Dobrinoff, the owner of the Oasis
Club. At trial, counsel for Carelvale asserted the following:
Your Honor, we’d like to put on the record again one more
request for a bench warrant to be issued for the appearance of
Gary Dobrinoff. Mr. Dobrinoff was served with a copy of the
subpoena. He was actually served with a check. Your Honor
asked if I knew if he had gotten it, in a conference, and we have
a copy of the cashed check that Mr. Dobrinoff received which
went into account payable to his name. So we wanted to make
a request on the record, Your Honor.
Mr. Dobrinoff is the only non-biased witness here that will
say anything about the Oasis Club. You’ve heard testimony by
both [Total Home Care] and [Carlevale]. This is the property
owner. And I believe the property owner would say to us that
the work—the completion level of the work is different than what
you’ve heard so far.
N.T. Trial, 7/21/16, at 289. Argument from both parties ensued, at which
time Carlevale’s counsel speculated at to what the substance of Mr.
Dobrinoff’s testimony would be. Id. at 296-300. At the conclusion of
argument, the trial court chided counsel for failing to take Mr. Dobrinoff’s
deposition and denied his request for a bench warrant upon noting it was not
convinced Mr. Dobrinoff would have “anything to add.” Id. at 301.
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6
While it disagrees with the trial court’s decision to reduce the amount,
Total Home Care concedes sufficient evidence had been presented for the
trial court to do so. Brief for Appellee at 19 n. 7.
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In the three-paragraph argument Carlevale devotes to this claim in his
appellate brief, he surmises that because witnesses for each party testified
in a manner to advance that party’s position and Mr. Dobrinoff would have
supplied the only “neutral” “non-biased, first-hand account of actual scope of
the completion of the Oasis-HVAC project,” the trial court abused its
discretion in finding he would have added nothing to the proceedings and in
failing to compel his testimony. Brief for Carlevale at 22-23. Carlevale
further represents that although he failed to appear at trial, Mr. Dobrinoff
properly had been served with a subpoena and a witness fee check which
had been cashed. Id. at 23.
Our standard of review with regard to evidentiary issues at trial is
well-settled.
When we review a trial court ruling on admission of evidence, we
must acknowledge that decisions on admissibility are within the
sound discretion of the trial court and will not be overturned
absent an abuse of discretion or misapplication of law. In
addition, for a ruling on evidence to constitute reversible error, it
must have been harmful or prejudicial to the complaining party.
An abuse of discretion is not merely an error of judgment, but if
in reaching a conclusion the law is overridden or misapplied, or
the judgment exercised is manifestly unreasonable, or the result
of partiality, prejudice, bias or ill-will, as shown by the evidence
or the record, discretion is abused.
Phillips, supra, 86 A.3d at 920 (citation omitted).
Pennsylvania Rule of Evidence 701 describes the parameters of lay
witnesses testimony as follows:
Rule 701. Opinion Testimony by Lay Witnesses
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If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is:
(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to
determining a fact in issue; and
(c) not based on scientific, technical, or other specialized
knowledge within the scope of Rule 702.
Pa.R.E. 701.
Carlevale’s above assertions are premised upon his representation that
he served a subpoena upon Mr. Dobrinoff and that a witness fee check had
been cashed. However, Carlevale has provided this Court with no proof
thereof in the form of a copy of the subpoena or cancelled check as exhibits
to his initial appellate brief or his reply brief, nor has he pointed to a place in
the certified record where we may locate the same. See Phillips, supra.
In addition, he also has failed to include the return of service required by
Pennsylvania Rule of Civil Procedure 405:
(a) When service of original process has been made the sheriff or
other person making service shall make a return of service
forthwith....
(b) A return of service shall set forth the date, time, place and manner
of service, the identity of the person served and any other facts
necessary for the court to determine whether proper service has been
made.
(c) Proof of service by mail under Rule 403 shall include a return
receipt signed by the [recipient] [or proof that the recipient refused to
accept service], ...
(d) A return of service by a person other than the sheriff shall be by
affidavit....
(e) The return of service or of no service shall be filed with the
prothonotary.
...
Pa.R.C.P. 405.
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There is no indication in the certified record or docket entries that a
subpoena was served properly on Mr. Dobrinoff, and the trial court's
authority to issue a bench warrant was not triggered unless and until proof
of service of the subpoena was demonstrated. To the contrary, by counsel’s
own admission, Mr. Dobrinoff was “served with a check.” Accordingly, we
must reject this claim. See Kovalev v. Sowell, 839 A.2d 359, 367
(Pa.Super. 2003).7
We next address Total Home Care’s cross-appeal which raises the
following “Counter-Statements of the Questions Involved”:
I. Did [Total Home Care] meet its burden of proof and
introduce sufficient evidence to substantiate the court’s award on
the principal contracts of $33,458.20?
II. Was the trial court required to issue a bench warrant to a
minor witness who would have added nothing to the claim to
compel his testimony concerning a minor issue?
III. Did the court err in reducing the original contract claims
and by refusing to award interest at the contract rate of 18
percent per annum?
Brief for Total Home Care at 4 (unnecessary capitalization omitted). As our
disposition above has rendered moot a consideration of Total Home Care’s
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7
Even if Carlevale had offered proof in this regard, we would find the trial
court did not abuse its discretion in finding Mr. Dobrinoff’s speculative
testimony concerning the agreement between Total Home Care and
Carlevale pertaining to a project that had begun eight years prior to trial was
not relevant in light of the previously admitted evidence. There was ample
evidence on the record to support the trial court’s credibility determinations
and fact finding in favor of Total Home Care on this breach of contract claim.
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first two claims, we need decide only its last. The issue of whether the
parties had entered into a contractual relationship was resolved in the
pleadings. See Answer and Counterclaim to Plaintiff’s Complaint, filed
2/1/12, at ¶¶ 3-5. Our Supreme Court has stressed:
it is a well-established principle of contract law that, where the
language of a contract is clear and unambiguous, a trial court is
required to give effect to that language. Madison Constr. Co.
v. Harleysville Mut. Ins. Co., 557 Pa. 595, 606, 735 A.2d 100,
106 (1999). Indeed, this Court has cautioned that it is not the
function of a court to rewrite agreements between parties, and a
court must give effect to the clear terms to which the parties
have agreed. Amoco Oil Co. v. Snyder, 505 Pa. 214, 478 A.2d
795 (1984). Thus, we have no hesitation in concluding that,
where the terms of a contract provide for the payment of
interest, a court's award of such interest in favor of the
prevailing party is not discretionary.
TruServ Corp. v. Morgan's Tool & Supply Co.,Inc., 614 Pa. 549, 39 A.3d
253, 261–62 (2012).
Total Home Care asserts the evidence introduced at trial established
any unpaid balance on the parties’ agreements would collect interest at 1.5
percent per month, or at an annual rate of 18 percent, and that Carlevale
was aware of and had agreed to this interest rate as is evident in the parties’
course of conduct. Total Home Care also avers Carlevale did not rebut the
evidence it had presented relative to the interest rate in the form of invoices
all of which indicated that interest would accrue at a rate of 1½ percent on
all outstanding balances after thirty days. Brief for Total Home Care at 15.
The trial court explained the reasoning it employed in calculating the
interest award herein as follows:
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The legal rate of interest is set by Section 202 of the Act of
January 30, 1974 (ACT), P.L. 13, as amended, 41 P.S. § 202,
which provides:
Reference in any law or document enacted or executed
heretofore or hereafter to ‘legal rate of interest’ and
reference in any document to an obligation to pay a
sum of money ‘with interest’ without specification of
the applicable rate shall be construed to refer to the
rate of interest six per cent per annum.
Id. The six-percent rate is applied to, among other things,
contract matters where the parties have not specified another
rate, and in particular to the award of prejudgment interest.
Daset Mining Co. v. Indus. Fuels Corp., 473 A.2d 584 (Pa.Super.
1984). The legal rate of interest is simple interest and may not
be compounded. In re Estate of Braun, 650 A.2d 73 (Pa.Super.
1994). In awarding statutory rate of interest, the [c]ourt
acknowledged it could have used the 18%, but exercised
discretion in awarding the statutorily prescribed 6% interest.
See N.T. Verdict, 7/21/16, at 2.
Trial Court Opinion, filed 1/11/17, at 9. In rendering this portion of its
verdict, the trial court simply stated the following:
The verdict could have been based on 18 percent, but I’m
not going to do that. I’m going to base it on the 6 percent
interest.
The verdict could have been higher, if I used the 13,400
figure for the HVAC work at Oasis, but I’m giving Mr. Carlevale
every benefit of the doubt that I can and using the $8,100
figure, and I’m giving Mr. Carlevale the benefit of a 6 percent.
N.T. Verdict, 7/21/16, at 2.
The parties’ agreements clearly provided for the payment of interest at
a rate of 1.5% per month, or 18% per annum, for all invoices thirty days
past due, and such language evinces the parties intended this increased rate
to apply to both prejudgment and post-judgment interest. See Trial Court
Exhibits; Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 591-93
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(Pa.Super. 2003), appeal denied, 578 Pa. 701, 834 A.2d 572 (2004).
Accordingly, Carlevale had a contractual obligation to pay a rate of interest
of 18 percent, and the trial court abused its discretion in reducing the
interest rate to 6 percent when fashioning its award. See TruServ, supra,614 Pa. at ___, 39 A.3d at 261-62.
Moreover, the trial court’s Order entered on July 26, 2016, did not
specify an award of prejudgment interest at all, but instead awarded the
statutorily prescribed 6 percent interest rate “until paid.” Thus, we remand
to the trial court for a calculation of the prejudgment interest and for a
calculation of interest thereafter at a rate of 18 percent on the $33,458.29
award until payment is satisfied.
Judgment affirmed in part8 and reversed in part; case remanded to the
trial court for further proceedings consistent with this memorandum.
Jurisdiction relinquished.
Judge Bowes joins the memorandum.
Judge Olson concurs in the result.
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8
This Court may affirm the trial court’s order on any valid basis. Plasticert
Inc. v. Westfield Ins. Co., 923 A.2d 489 (Pa.Super. 2007).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/25/2017
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