Zokaites Contracting v. Hulton, J. ( 2020 )

J-A12020-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ZOKAITES CONTRACTING, INC., : IN THE SUPERIOR COURT OF
GENERAL PARTNER AND TRADING : PENNSYLVANIA
AS ZOKAITES PROPERTIES, LP AND :
WYNCREST DEVELOPMENT, INC. :
:
Appellants :
:
v. :
:
JEFFREY A. HULTON :
:
Appellee : No. 1471 WDA 2019
Appeal from the Order Entered September 16, 2019
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 17-011433
BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED MAY 29, 2020
Appellants, Zokaites Contracting, Inc., General Partner and Trading as
Zokaites Properties, LP and Wyncrest Development, Inc., appeal from the
order entered in the Allegheny County Court of Common Pleas, which granted
summary judgment in favor of Appellee, Jeffrey A. Hulton, in this legal
malpractice action. We affirm.
The relevant facts and procedural history of this case are as follows.
Appellants are residential real estate developers who own a tract in Butler
Township, Butler County (“Development”) with plans to build there and sell
47 homes. Before the end of 2009, Appellants completed 14 of the homes in
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A12020-20
compliance with the then-effective 2006 version of the Pennsylvania Uniform
Commercial Code (“PUCC”). The Pennsylvania legislature, however, amended
the PUCC, effective December 31, 2009. Appellants’ president Frank R.
Zokaites executed a letter dated December 15, 2009 (“December 15th Letter”)
to architecture firm, Sweeny Shank, LLC (“Sweeny Shank”). The December
15th Letter purported to set forth between Appellants and Sweeny Shank an
agreement, under which Sweeny Shank would design the remaining 33 homes
in the Development.
In 2010, Appellants applied for a permit to build homes under the 2006
PUCC, arguing the December 15th Letter constituted a “design contract” to
which the PUCC “grandfather provision” applied to allow construction of the
new homes under the 2006 PUCC. The Butler Township Code Enforcement
Officer denied Appellants’ application. Appellants retained the legal services
of Appellee and appealed the denial of their building permit application to the
Butler Township UCC Board (“Board”). On June 30, 2010, the Board upheld
the Code Enforcement Officer’s denial of Appellants’ application.
While still represented by Appellee, Appellants filed a timely appeal in
the Butler County Court of Common Pleas. On October 28, 2015, the
Honorable Michael Yeager presided over a bench trial, at which Appellants’
vice president, Jeffrey Robinson, testified. During trial, an exchange between
Judge Yeager and Mr. Robinson occurred, in relevant part, as follows:
[THE COURT]: … This letter of December 15, 2009,
was authored by Frank R. Zokaites. Is that correct?
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[MR. ROBINSON]: Yes, Your Honor.
* * *
[THE COURT]: Who usually writes the design
contract?
* * *
[THE COURT]: Well, your testimony, sir, was the
design contract is what, and I quote you, whatever the
architect puts into it.
* * *
[MR. ROBINSON]: Yes. That was my testimony. I believe
the question was a general question of a design contract.
[THE COURT]: I want to know what the design
contract is, and your response was, whatever the architect—
whatever the architect puts into it.
[MR. ROBINSON]: Okay.
[THE COURT]: So that would then—one would then
have to conclude from that[,] that a design contract is
customarily proffered by an architect.
[MR. ROBINSON]: Yes, Your Honor.
[THE COURT]: And why did Zokaites Properties—why
was it that Zokaites Properties—Wyncrest Development,
Inc. and Zokaites Properties, why was it that they were
proffering this contract, to term this to be a design contract?
[MR. ROBINSON]: In this particular case?
[THE COURT]: Yes. If a design contract is typically
and customarily proffered by an architect, why is it that this
document that you’re terming to be a design contract under
date of December 15, 2009, was proffered by the builder,
Zokaites Properties, Inc. and—Wyncrest Development, Inc.
and Zokaites Properties?
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* * *
[THE COURT]: Well, who drafted—well it’s written on
Wyncrest Development, Inc. letterhead.
[MR. ROBINSON]: Yes, you’re right.
[THE COURT]: And it’s signed…by a Mr. Zokaites.
[MR. ROBINSON]: Actually I think you’re right, Your
Honor. It looks like we did do it because I do see the
initials—
[THE COURT]: ZR—FRZ?
[MR. ROBINSON]: Right, which stands for Frank R.
Zokaites. So apparently Mr. Zokaites did. Why was it done,
um—um, oh, probably because we were planning to take
advantage of the grandfather provision.
[THE COURT]: And because of the time frame
involved?
[MR. ROBINSON]: Probably.
(N.T. Trial, 10/28/15, at 39-42; R.R. at 226a-229a).
On November 3, 2015, Judge Yeager entered a verdict in favor of the
Board and against Appellants, upholding the Board’s decision. Judge Yeager
determined the December 15th Letter did not constitute a design contract
under the PUCC, but was merely a self-serving document representing
Appellants’ attempt to circumvent the intent of the PUCC to provide safety and
welfare standards.
While still represented by Appellee, Appellants timely appealed. Judge
Yeager ordered Appellants to file a concise statement of errors complained of
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on appeal per Pa.R.A.P. 1925(b), but Appellants failed to comply.
Subsequently, Judge Yeager entered two Rule 1925(a) opinions, noting
Appellants had failed to file a court-ordered concise statement. On May 3,
2017, the Commonwealth Court determined all appellate issues had been
waived for failure to file a court-ordered Rule 1925(b) statement and affirmed
Judge Yeager’s decision. See Zokaites Properties, LP v. Butler Township
UCC Board of Appeals, 167 A.3d 306 (Pa.Cmwlth. 2017) (unpublished
memorandum).
On August 14, 2017, Appellants initiated the current case when they
filed in the Allegheny County Court of Common Pleas a complaint against
Appellee for legal malpractice, based upon Appellee’s failure to file a court-
ordered Rule 1925(b) statement on Appellants’ behalf in the Butler County
action. Appellee filed a motion for summary judgment on June 26, 2019, and
Appellants filed a response on August 23, 2019. On September 16, 2019, the
trial court granted Appellee’s motion for summary judgment. Appellants
timely filed a notice of appeal on September 24, 2019. The trial court ordered
Appellants on September 27, 2019, to file a Rule 1925(b) statement;
Appellants timely complied on October 3, 2019.
Appellants raise the following issues for our review:
WHETHER THE COURT COMMITTED ERRORS OF LAW AND
FACT IN FAILING TO FIND THAT THERE WERE
SUBSTANTIAL ISSUES OF MATERIAL FACT CONCERNING
WHETHER THE DESIGN CONTRACT SATISFIED ALL THE
ELEMENTS REQUIRED TO SUSTAIN A CONTRACT THEREBY
PRECLUDING THE GRANT OF SUMMARY JUDGMENT[?]
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WHETHER THE COURT COMMITTED ERRORS OF LAW AND
FACT IN FAILING TO FIND THAT THERE WERE
SUBSTANTIAL ISSUES OF MATERIAL FACT CONCERNING
WHETHER THE DESIGN CONTRACT BETWEEN
[APPELLANTS] AND SWEENY SHANK ARCHITECTS
CONSTITUTED A DESIGN CONTRACT WITHIN THE MEANING
OF PENNSYLVANIA’S UNIFORM CONSTRUCTION CODE, 35
P.S. § 7210.104, THEREBY PRECLUDING THE GRANT OF
SUMMARY JUDGMENT[?]
WHETHER THE COURT COMMITTED ERRORS OF LAW AND
FACT IN FINDING THAT APPELLANTS’ TAKING ADVANTAGE
OF THE GRANDFATHER PROVISION WAS AN IMPROPER
ATTEMPT TO CIRCUMVENT THE INTENT TO PROVIDE
STANDARDS FOR THE PROTECTION OF LIFE, HEALTH,
PROPERTY, AND ENVIRONMENT AND FOR THE SAFETY AND
WELFARE OF THE CONSUMER, GENERAL PUBLIC, AND THE
OWNERS AND WELFARE OF BUILDINGS AND
STRUCTURES[?]
(Appellants’ Brief at 3).
Our standard of review of an order granting summary judgment requires
us to determine whether the trial court abused its discretion or committed an
error of law. Mee v. Safeco Ins. Co. of America, 908 A.2d 344, 347
(Pa.Super. 2006).
Judicial discretion requires action in conformity with law on
facts and circumstances before the trial court after hearing
and consideration. Consequently, the court abuses its
discretion if, in resolving the issue for decision, it misapplies
the law or exercises its discretion in a manner lacking
reason. Similarly, the trial court abuses its discretion if it
does not follow legal procedure.
Miller v. Sacred Heart Hospital, 753 A.2d 829, 832 (Pa.Super. 2000)
(internal citations and quotation marks omitted). Our scope of review is
plenary. Pappas v. Asbel, 564 Pa. 407, 418, 768 A.2d 1089, 1095 (2001),
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cert. denied, 536 U.S. 938, 122 S.Ct. 2618, 153 L.Ed.2d 802 (2002). In
reviewing a trial court’s grant of summary judgment,
[W]e apply the same standard as the trial court, reviewing
all the evidence of record to determine whether there exists
a genuine issue of material fact. We view the record in the
light most favorable to the non-moving party, and all doubts
as to the existence of a genuine issue of material fact must
be resolved against the moving party. Only where there is
no genuine issue as to any material fact and it is clear that
the moving party is entitled to a judgment as a matter of
law will summary judgment be entered. All doubts as to the
existence of a genuine issue of a material fact must be
resolved against the moving party.
Motions for summary judgment necessarily and directly
implicate the plaintiff’s proof of the elements of [a] cause of
action. Summary judgment is proper if, after the
completion of discovery relevant to the motion, including
the production of expert reports, an adverse party who will
bear the burden of proof at trial has failed to produce
evidence of facts essential to the cause of action or defense
which in a jury trial would require the issues to be submitted
to a jury. In other words, whenever there is no genuine
issue of any material fact as to a necessary element of the
cause of action or defense, which could be established by
additional discovery or expert report and the moving party
is entitled to judgment as a matter of law, summary
judgment is appropriate. Thus, a record that supports
summary judgment either (1) shows the material facts are
undisputed or (2) contains insufficient evidence of facts to
make out a prima facie cause of action or defense.
Upon appellate review, we are not bound by the trial court’s
conclusions of law, but may reach our own conclusions.
Chenot v. A.P. Green Services, Inc., 895 A.2d 55, 61 (Pa.Super. 2006)
(internal citations and quotation marks omitted).
The PUCC includes a “grandfather provision,” which provides in relevant
part, as follows:
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§ 7210.104. Application
(a) General rule.—This act shall apply to the
construction, alteration, repair and occupancy of all
buildings in this Commonwealth.
(b) Exclusions.—This act shall not apply to:
* * *
(2) new buildings or renovations to existing buildings
on which a contract for design or construction has been
signed prior to the effective date of the regulations
promulgated under this act on projects requiring
department approval;
* * *
35 P.S. § 7210.104(a), (b)(2) (effective July 17, 2007, to October 24, 2017).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Donald R.
Walko, Jr., we conclude Appellants’ issues merit no relief. The trial court
opinion comprehensively discusses and properly disposes of the questions
presented. (See Trial Court Opinion, filed November 5, 2019, at 3-6) (finding:
to complete “case within case” analysis, trial court stands in shoes of
Commonwealth Court as if it were reviewing appeal from Judge Yeager’s
decision in underlying action to uphold Board’s denial of Appellants’ application
for building permit; at trial in underlying case, Jeffrey Robinson, Appellants’
vice president, testified that architect typically writes design contract; Mr.
Robinson explained, however, Appellants’ president drafted December 15th
Letter; Mr. Robinson admitted Appellants “probably” drafted letter for
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purposes of taking advantage of grandfather provision of 2009 PUCC; Judge
Yeager determined December 15th Letter was merely self-serving letter, which
was not “design contract” within meaning of PUCC; whether December 15th
Letter satisfied elements of contract, generally, is irrelevant, because even if
December 15th Letter was enforceable contract, it was not design contract
under PUCC; Judge Yeager’s decision was sound; thus, there is no substantial
issue of material fact regarding whether December 15th Letter constituted
design contract under PUCC; additionally, Board found December 15th Letter
was not design contract to be excluded or “grandfathered in” from 2009 PUCC
requirements; additionally, no evidence demonstrated 2009 PUCC
requirements would have required alteration of any of architect Sweeny
Shank’s design work; in upholding Board’s denial, Judge Yeager noted
regulatory purpose of PUCC grandfather provision was to “save building
owners time and expense and not to require redesign or resubmission of plans
for buildings in the construction process”; Judge Yeager determined
Appellants’ interpretation of grandfather provision would permit them to build
homes without regard to changes in PUCC in virtual perpetuity; such
expansive exception conflicts with PUCC’s overall purpose to ensure safety
and welfare of general public; record of underlying action supports Judge
Yeager’s conclusion; based upon foregoing, Appellants cannot prove they
would have been successful on merits on appeal from Judge Yeager’s decision,
even if Appellee had filed court-ordered Rule 1925(b) statement on Appellants’
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behalf in underlying action; thus, Appellants’ legal malpractice claim fails). 1
The record supports the trial court’s rationale. See Chenot, supra.Accordingly, we affirm on the basis of the trial court’s opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/2020
____________________________________________
1 We depart only from the trial court’s reliance on Scaramuzza v. Sciolla,
No. Civ.A.04-1270, 2006 WL 557716 (E.D.Pa. March 3, 2006), as that is a
federal district court case, which is non-binding on our Court.
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Circulated 05/06/2020 07:04 AM
Allegheny County - Department of Court Records
Civil Division - Filings Information
County caseID:GD-17-011433
Case Description:Zokaites Contracting Inc. etal vs Hulton
Official Docket Entry, Sort By Document Number Ascending
Document Filed Date Title/Entry Entry Classification Filed By
Number
1 11/05/2019 Opinion Official Docket Entry Donald RWalko Jr.
(Index Page-1)
1-Opinion
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CML DIVISION
ZOKAITES CONTRACTING, INC., No: GD-17-011433
GENERAL PARTNER AND TRADING AS
ZOKAITES PROPERTIES, LP, and Superior Court No: 1471 WDA 2019
WYNCRESTY DEVELOPMENT, INC.
Plaintiffs, OPINION
v.
BY:
JEFFREY A. HULTON
Honorable Donald R. Walko, Jr.
Defendant. City-County Building
414 Grant Street, Room 706
Pittsburgh, PA 15219
COPIES TO:
Counsel for Plaintiff:
Jeffrey M. Robinson, Esq.
Robinson Law Group
155 Lake Drive, Suite 103
Wexford, PA 15090
.. - . :-� �--· .
-
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•
Counsel for Defendant:
u, Robert J. Grimm, Esq.
Swartz Campbell LLC
Koppers Building
436 th A venue
Pittsburgh, PA 15219
IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA
CIVIL DIVISION
ZOKAITES CONTRACTING, INC., No: GD-17-011433
GENERAL PARTNER AND TRADING AS
ZOKAITES PROPERTIES, LP, and Superior Court No: 1471 WDA 2019
WYNCRESTY DEVELOPMENT, INC.
Plaintiffs,
v.
JEFFREY A. HULTON
Defendant.
OPINION
WALKO,J. November 5, 2019
This appeal concerns the Order dated September 13, 2019, in which the Court granted
Defendant's Motion for Summary Judgment and dismissed all claims with prejudice.
I. FACTUAL BACKGROUND
Zokaites Properties, LP ("Zokaites") and Wycrest Development, lnc.("Wycrest")
( collectively, the "Plaintiffs") drew up plans to construct 47 homes as part of a residential
development in Butler Township. Fourteen homes were constructed in compliance with the 2006
version of the Pennsylvania Uniform Construction Code ("UCC"). The UCC was amended in
2009, which added requirements that would increase Plaintiffs' building costs for the remaining
33 homes. The amendments were to take effect on December 31, 2009; however, there was a
"grandfather" provision for existing designs and constructions.
1
Plaintiffs claim that they entered into a construction contract on December 15, 2009,
which led them to believe that their construction plans would fall under the 2006 UCC as these
plans existed prior to the enactment of the new UCC. Plaintiffs applied for a building permit
under the less onerous requirements of the 2006 UCC, but the Butler Township Code
Enforcement Officer denied their application, claiming the building contract did not fall under
the "grandfather" provisions of the 2009 UCC. Plaintiffs retained Attorney Jeffrey A. Hulton,
Esquire ("Defen�ant" or "Attorney Hulton") to represent them in their appeal to Butler
Township's Uniform Commercial Code Board of Appeals ("Board"). The Board upheld the
Code Enforcement Officers denial of the application. Plaintiffs then appealed to the Butler
County Court of Common Pleas.
On November 3, 2015, the Honorable Judge Yeager of the Butler County Court of
Common Pleas entered a verdict in favor of the Board, upholding its denial of the building
permit. Plaintiffs filed a Notice of Appeal and the trial court issued a Rule 1925(b) Order
directing Plaintiffs to file a statement of matters complained of on appeal. Defendant failed to
timely file a statement of matters on behalf of Plaintiffs. As a result, Judge Yeager issued an
Opinion indicating that the failure to file the statement waived all issues on appeal. On May 3,
201 7, Commonwealth Court dismissed the appeal, agreeing with the trial court that all issues had
been waived on appeal.
II. PROCEDURAL HISTORY
On August 14, 2017, Plaintiffs Zokaites and Wycrest launched this complaint against
Defendant Attorney Hulton raising one count of professional negligence for his failure to timely
file the Rule l 925(b) statement. Defendant responded with preliminary objections on several
issues including failure to serve original process, improper venue, lack of standing, and failure to
2
state a claim. The Allegheny County Court of Common Pleas Judge Ignelzi overruled
Defendant's preliminary objections and allowed the complaint to be served. Defendant then filed
an Answer and New Matter, raising a statute of limitations defense, failure to state a claim,
laches, accord, satisfaction, consent, discharge, illegality, impossibility, and the doctrines of
collateral estoppel and/or res judicata. Following Plaintiff's Response to New Matter, Defendant
moved for summary judgment only after a prolonged delay in the case because of a Suggestion
of Bankruptcy, which was ultimately dismissed against Defendant.
In an Order dated September 13, 2019, this Court granted Defendant's Motion for
Summary Judgment. For the reasons outlined below, the Court's Order should be affirmed.
III. DISCUSSION
A plaintiff in an attorney malpractice case must establish three elements: 1) employment
of the attorney or other basis for a duty; 2) the failure of the attorney to exercise ordinary skill
and knowledge; and 3) that such negligence was the proximate cause of damage to the plaintiff.
Kituskie v. Corbman, 714 A.2d 1027, 1029 (Pa. 1998). The Pennsylvania Supreme Court has
explicitly stated that "[a] legal malpractice action is different because ... a plaintiff must prove a
case within a case since he must initially establish by a preponderance of the evidence that he
would have recovered a judgment in the underlying action ... [i]t is only after the plaintiff
proves he would have recovered a judgment in the underlying action that the plaintiff can then
proceed with proof that the attorney he engaged ... was negligent." Id. at 1030 (emphasis added).
The case within a case analysis requires the Court to replicate the underlying litigation "via a
careful review of the record of the underlying trial" Scaramuza v. Sciolla, No. Civ.A.04-1270,
2006 WL 557716 (E.D.P.A. March 3, 2006). Accordingly, the factual findings made in the
3
underlying case will be used to determine whether Plaintiffs would have recovered a judgment in
the previous action based on the merits.
After careful consideration of the record, the Court finds that Plaintiffs would not have
been successful on the merits of its appeal and that the Commonwealth Court would have
affirmed the trial court's decision to uphold the Board's denial of Plaintiffs' appeal. Pursuant to
the Local Agency Law, the appropriate standard of review before both the trial court and
Commonwealth Court is whether the Board's decision to uphold an appeal of the denial of a
building permit was supported by substantial evidence. 2 Pa.C.S.A. § 754(b). Under the
Pennsylvania Rules of Civil Procedure, "any party may move for summary judgment in whole or
in part as a matter of law whenever there is no genuine issue of any material fact as to a
necessary element of the cause of action or defense which could be established by additional
discovery or expert report ... " Pa.R.C.P. No. 1035.2. In the case at hand, the first element
Plaintiffs are required to establish is that they would have recovered a judgment in the
underlying action.
As the Court now stands in the shoes of the Commonwealth Court, it is tasked with
reviewing the Court of Common Pleas Judge Yeager's decision to uphold the Board's denial of
Plaintiffs appeal of the Code Enforcement Officer's permit denial. The record before the Court
shows that a non-jury trial was held before Judge Yeager and was transcribed, creating a full
record of the trial. Jeffrey Robinson, the then-Vice President of both Plaintiff companies,
testified that a design contract is typically written by an architect but that the letter at issue was
drafted by the builder, Frank Zokaites. When asked why this was the case, Robinson simply
answered, "probably because we were planning to take advantage of the grandfather provision."
4
Fallowing the trial, Judge Yeager concluded that the proffered contract was nothing more
than a self-serving letter that failed to meet the definition of a "design contract" within the
meaning of the UCC. It is irrelevant whether the design contract satisfied all the elements
required to sustain a contract because even it if was an enforceable contract, it was not a design
contract within the meaning of the UCC. The Commonwealth Court would not have disturbed
Judge Yeager's sound decision and, therefore, there is no substantial issue of material fact
concerning whether the design contract in question constituted a design contract within the
meaning of the UCC. Accordingly, summary judgment on this issue was appropriate.
Last, there is substantial evidence to support Judge Yeager's finding that the Board was
correct in concluding that Plaintiffs use of the grandfather provision was an improper attempt to
circumvent the intent to provide standards for the protection of the health, safety, and welfare of
the general public. In its decision, the Board found that the contract was not the type of design
contract that is excluded or "grandfathered in" from the 2009 UCC requirements. There was no
testimony or documentary evidence of record that Sweeney Shank performed any design work
that would need to be altered because of the 2009 requirements. The Board concluded that
Plaintiffs were required to show either detrimental reliance or inequity in accordance with the
intent of the UCC's exclusionary provision.
In upholding the Board's decision Judge Yeager cited the Department of Labor and
Industry's interpretation of the exclusionary provision in concluding that the letter was not the
type of design contract excluded from the 2009 UCC. According to the Department of Labor and
Industry "[t]he purpose is to save building owners time and expense and not to require redesign
or resubmission of plans for buildings in the construction process." Pa Regulation Text, 2006. Pa
Regulation Text 45260 (NS). Judge Yeager emphasized that Plaintiffs' interpretation would
5
enable them to perpetually build homes without regard to the changes in the UCC. He also
concluded that such a result would conflict with the purpose of the UCC, which is to provide
standards that ensure the safety and welfare of the general public. Accordingly, Judge Yeager
upheld the decision of the Board.
IV. CONCLUSION
There are no genuine issues of material fact that demonstrate Plaintiffs would have been
successful in their underlying appeal. If it had ruled on the merits, the Commonwealth Court
would have affirmed Judge Yeager's decision because his determination that the letter was not a
"contract for design or construction" within the meaning of the UCC exclusion was supported by
substantial evidence. First, the letter was drafted by the builder, President Frank Zokaites, rather
than an architect, as would be expected. After reviewing the UCC exclusionary provision, Judge
Yeager determined that the letter did not comport with its purpose or intent and, therefore,
affirmed the Board's decision. Defendant's failure to file the 1925(b) statement was not the
proximate cause of Plaintiffs loss on appeal and, therefore, Plaintiffs cannot prove that they
would have recovered in the underlying action.
Since Plaintiffs cannot show by a preponderance of the evidence that they would have
recovered in the underlying case, the Court is not required to analyze whether Attorney Hulton
was negligent in his representation. For the foregoing reasons, the Court's Order dated
September 13, 2019 should be affirmed.
6