Denig, F. v. 501 Grandview, Inc. ( 2014 )

J-A08002-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
FRED DENIG, JR., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
501 GRANDVIEW, INC., A
PENNSYLVANIA CORPORATION, AND 501
GRANDVIEW ASSOCIATES, LP, A
PENNSYLVANIA LIMITED PARTNERSHIP
Appellants No. 1081 WDA 2013
Appeal from the Judgment Entered on June 6, 2013
In the Court of Common Pleas of Allegheny County
Civil Division at No.: G.D. 09-21205
BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.
CONCURRING MEMORANDUM BY WECHT, J.: FILED AUGUST 22, 2014
award to Fred Denig, Jr., for superintendence services rendered.
Furthermore, I join the ma
majority, I would not deem waived the challenge of 501 Grandview, Inc.
that award on the merits. I write separately to explain why.
As noted by the majority, Grandview, in its questions presented,
recover proportionately. Maj. Mem. at 3 (quoting Brief for Grandview at 3).
It does not, however, set off a question identifying any challenge to the
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extra fees imposed by the trial court. On this basis alone, the majority
deems any such issue waived. Maj. Mem. at 3 n.1.
Pennsylvania Rule of Appellate Procedure 2101 calls for strict
...
shall conform in all material respects with the requirements of these rules as
nearly as the circumstances of the particular case will admit, otherwise they
may be suppressed, and, if the defects are in the brief . . . and are
substantial
Pa.R.A.P. 2101. Rule 2116 provides as follows:
The statement of the questions involved must state concisely the
issues to be resolved, expressed in the terms and circumstances
of the case but without unnecessary detail. The statement will
be deemed to include every subsidiary question fairly comprised
therein. No question will be considered unless it is stated in the
statement of questions involved or is fairly suggested thereby.
Pa.R.A.P. 2116(a).
It cannot be disputed that Grandview failed to satisfy this rule with
n
our precedent and that of our sister Commonwealth Court teaches that we
may overlook violations of Rule 2116 when they do not impede our review in
any material way
See, e.g., Savoy v. Savoy, 641 A.2d 596, 598 (Pa. Super.
ur
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Wesleyville Borough v. Erie County Bd. of Assessment Appeals, 676
A.2d 298, 301 (Pa. Cmwlth.
and addressed arguments [that] have been set forth in the argument portion
Pa.R.A.P. see also Pa.R.A.P.
shall be liberally construed to secure the just, speedy and inexpensive
determ
. . . of any of these rules . . . on its
Commonwealth v. Wheaton, 598 A.2d 1017(Pa. Super. 1991), this Court declined
failure to satisfy Rule 2116, because the issue had been raised before the
See id. at 1018 n.1.
n its post-
trial motions. Grandview then identified this same issue as grounds for
appeal in its Rule 1925(b) concise statement of errors complained of on
appeal, which is intended to apprise the trial court of its alleged error,
enabling the trial court to provide this Court with a Rule 1925(a) opinion that
effectively explains the reasons for the challenged ruling. See Jiricko v.
Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super. ...
allows the trial court to identify and focus on those issues the parties plan to
not squarely address the challenged items as a discrete issue, that omission
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statemen
Complained of on Appeal at 1. Indeed, Grandview identified therein the
charges that it deemed objectionable. Id. at 1-2 ¶2. Finally, Grandview
briefed at length the appropriateness of imposing these charges in a
See Brief for Grandview at 8-12.1
waiver for such an omission. The issue has been raised and argued at every
stage of the proceedings, just as required by the applicable rules of
procedure. Nonetheless, I would affirm.
The invoice identifying the charges in question amounted to $8,710 of
the $17,710 verdict awarded to Denig, and were allocated as follows:
Bidding/Negotation $6,000
Drawings for possible adjacent Garage
FD 12 hrs @ $100/hr $1,200
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1
regard to the challenged items, asserting only that the omission of that issue
of appeal. See Brief for Denig at 5. Inasmuch as this Court has the power
to overlook waiver, and has done so many times in analogous situations,
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Drawings for changed Penthouse and single
unit on third through fifth floors
FD 5 hours @ $100/hr $500
FD 8 hours @ $70/hr $560
Drawings for additional front door
FD 4.5 hours @ $100/hr $450
Trial Exhibit 30. Grandview does not contest the recoverability of $6,000 for
bidding/negotiation or $1,200 for the garage drawings. See Brief for
Grandview at 10
lien proceeding of the balance of the charges specified in the invoice,
concerning drawings for the penthouse and another unit, as well as for an
additional front door, charges that add up to $1,510. Id.2
Id. Citing
Bennett v. Frederick R. Gerry Co., 117 A. 345 (Pa. 1922), Grandview
asserts correctly, if inartful
architect cannot bundle a claim for services for which he has no right to file
Grandview at 10; see Bennett, 117 A. at 346. Grandview acknowledges
that, when an architect has supervisory responsibilities over a job, he may
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2
The law is clear that what cannot be
proceeding may be sought in a contract claim, see Hoekstra v. Hoekstra,
87 Pa. Super. 15, 18 (Pa. Super. 1925), and such a parallel proceeding
evidently was commenced in connection with this dispute.
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that job. See 49 P.S. §
utilizing
. . . who, by contract with the owner, express or
implied, in addition to the preparation of drawings, specifications and
contract documents also superintends or supervises any such erection,
cf. Hoekstra v. Hoekstra, 87 Pa.
Super. 15, 18 (Pa. Super.
and drawings in this proceeding only because of the fact that they are
incidental to and enhance his work of superintending and supervising the
actual construction . . .
Denig had specified supervisory responsibilities, the absence of any
obligation to continue in a supervisory capacity with respect to those items
precluded recovery of those charges in the instant action.
While Grandview is correct regarding the overarching proposition that
work outside the scope of a construction contract, express or implied, is not
that the work in question herein was severable from the rest of this large
disputed supervisory role over
the bulk of the project in question. Grandview cites scant evidence to that
effect in its argument and cites only distinguishable case law. Our law is not
so monolithic as to preclude recovery for items added after the
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commencement of a construction project that it is sufficient merely to cite a
general proposition of law and be done with it.
In B.N. Excavating, Inc., v. PBC Hollow-A, L.P. , 71 A.3d 274(Pa. Super. 2013), this Court reaffirmed that the core proposition at work in
connected Id. at 282(emphasis in original). Because the degree to which the work at issue in
presented a question of fact, that determination belonged to the fact-finder,
objections. Id.et in this case, to spend as
much time educating this Court as to why the items in question were
construction project as it spends educating this Court on the legal framework
against which the assessment is to be made. However, it has failed to
establish any reason the fact-finder was not free to conclude that the items
in question were, in fact, connected to the larger job, which, like any large
construction job, was dynamic in its scope and its particulars as it
progressed, or that Denig had no supervisory role with respect to those
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items. Accordingly, I would find that this argument is unavailing on its
3
For the foregoing reasons, I concur fully in the result reached by the
the merits.
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3
Grandview also contends that it paid $450 for the cost associated with
allegedly unrebutted testimony of Daniele Dipardo, a partner in Grandview,
that Denig was paid for this charge. Brief for Grandview at 12 (citing Notes
of Testimony, 3/8/2013, at 170-71). While DiPardo did so testify,
the well-established proposition that the jury may reject even unrebutted
testimony. See Burke v. Kennedy, 133 A. 508, 510 (Pa.
be said, as a matter of law, that the [fact-finder] is bound to accept
evidence as true, although not contradicted by direct evidence. . . . A
witness, though unimpeached, may have such an interest in the question at
omitted)); see also Michultka v. Grapin, 340 A.2d 576, 579
(Pa. Super. -called rule that one is bound by the testimony
of his witness, unless the witness is impeached or his testimony
contradicted, today has little currency despite the fact that it is frequently
established precedent, it was incumbent on Grandview to present legal
argument in support of its claim. See Pa.R.A.P. 2119(a). Grandview having
failed to do so, I would find that this particular argument is waived.
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