J-A14009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

VINCENT R. BOLTZ, INC.,                            IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellant

                       v.

ESKAY REALTY COMPANY AND S.
KANTOR COMPANY, INC., AND ALLEN D.
FELDMAN, INDIVIDUALLY,

                            Appellees                  No. 1787 MDA 2014


             Appeal from the Judgment Entered November 25, 2014
               In the Court of Common Pleas of Lebanon County
                       Civil Division at No(s): 2009-00648


BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

MEMORANDUM BY BENDER, P.J.E.:                             FILED JULY 08, 2015

        Vincent R. Boltz, Inc. appeals from the judgment entered against it on

November 25, 2014, following a bench trial resolving this contract dispute.

We affirm.

        We adopt the following statement of facts:

        [Appellant] is a plumbing/heating contractor operating in
        Lebanon County, Pennsylvania.         [Appellees] Eskay Realty
        Company, S. Kantor Company, and [Allan] Feldman[1] and
        [Appellant] have a longstanding relationship.          [Appellant]
        provided fuel oil and plumbing and HVAC repair services to
        [Appellees’] place of business and personal residence. Prior to
        the current dispute, [Appellant] would invoice [Appellees] for the
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    The proper spelling of Mr. Feldman’s first name is “Allan,” not “Allen.”
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        services provided to them and they would regularly pay on the
        account[;] however, at no time was there a written contract
        between the parties.

        Sometime during the summer of 2004, [Appellee] Feldman
        approached Mr. Boltz and inquired if [Appellant] could perform
        services on property he was acquiring at 722 Walnut Street,
        Lebanon, Pennsylvania (hereinafter “the property”). The parties
        met at the property and discussed the scope of the work to be
        completed. [Appellee] Feldman … asked Mr. Boltz if the work
        could be done for ten thousand dollars ($10,000).[2] Appellees
        allege that Mr. Boltz replied it could be done for the specified
        amount.

        [Appellant] began work on the property after this meeting.
        While the work was being completed, [Appellees] were never
        provided any invoices and there was no discussion about the
        budget. [Appellant] did inform [Appellees] that the property’s
        HVAC system was not working and extensive repairs had to be
        made.     There is no dispute that the work was completed
        satisfactorily. On January 18, 2005, after all work on the
        property had been completed, [Appellant] presented [Appellees]
        with a bill for nineteen thousand, nine hundred eighty dollars
        and ninety-one cents ($19,980.91). Upon receiving the invoice,
        Mr. Feldman approached Mr. Boltz regarding the cost exceeding
        the requested amount. [Appellees] did pay thirteen thousand
        eight hundred and twenty[-]four dollars and twelve cents
        ($13,824.12)[] on the invoice, which included this property and
        other work, until October of 2006, hoping to reach an amicable
        resolution.

Trial Court Order and Opinion, 04/04/2014, at 2-3 (internal footnotes

modified or omitted).

        Appellant commenced this action in March 2009, alleging breach of

contract. A bench trial was held in October 2013. In April 2014, the trial

court issued its findings and verdict, specifically concluding that (1) an oral
____________________________________________


2
    Appellant testified that the amount discussed was $12,000.



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contract existed, pursuant to which Appellees agreed to pay ten thousand

dollars ($10,000) to Appellant for work performed at the property; (2)

Appellees had paid to Appellant thirteen thousand eight hundred twenty

dollars and twelve cents ($13,820.12); (3) Appellant was in a superior

position, knew when costs exceeded the contract price, but failed to inform

Appellees or seek to modify the contract terms; and (4) Appellant was

entitled to no further payment on the contract. Id. at 4.

     Appellant timely filed a post-trial motion, challenging numerous,

factual findings of the trial court. See Appellant’s Post-Trial Motion at 2-3.

The trial court denied Appellant’s motion.      See Trial Court Order and

Opinion, 09/26/2014.    Appellant timely appealed and filed a court-ordered

Pa.R.A.P. 1925(b) statement.     The trial court did not issue a responsive

opinion, but noted its position that any issue raised by Appellant on appeal

was adequately addressed in its previous opinions. See Trial Court Order,

11/18/2014, at 3.

     In November 2014, this Court noted that final judgment had not been

entered in this matter as required by Pa.R.A.P. 301.      See Order of Court,

11/21/2014. Accordingly, we directed Appellant to praecipe the trial court

prothonotary to enter judgment and, thereafter, certify to this Court that

judgment was entered.     Id.   Appellant complied.     Thus, this appeal may

proceed. See Pa.R.A.P. 905(a)(5).

     Appellant raises the following issues on appeal:


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      1. Whether the lower court committed an error of law by not
      finding that the extra time and materials required to complete
      the project as scoped [sic] by the Appellee[s] was compensable
      and part of the existing service contract between the parties?

      2. Whether the lower court committed an error of law by not
      finding that the Appellant presented sufficient evidence and
      testimony to prove the existence of a long[-]standing oral
      service contract between the parties to this action?

Appellant’s Brief at 9.

      Appellant rejects the court’s determination that a specific, oral contract

governed the service work performed at the property, suggesting instead

that Appellant provided a mere estimate for the work based on an inaccurate

set of facts. Id. at 17-18, 20. According to Appellant, the trial court’s error

hinges upon its failure to credit the parties’ long-standing relationship, in

which Appellant provided various HVAC services to Appellees in return for

prompt payment. See Appellant’s Brief at 15-17, 21, 23, 24. Viewing the

evidence properly, Appellant suggests, the service work performed at the

property was governed by an open contract for services, citing in support

Boyle v. Steiman, 631 A.2d 1025, 1033-34 (Pa. Super. 1993) (recognizing

an open, oral contract for investigative services rendered based upon an

extensive course of dealing between the parties).

      Thus, according to Appellant, we must reverse the trial court.

Specifically, Appellant asks that we conclude that (1) an open contract for

services existed between the parties and (2) Appellees owe to Appellant the




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balance due for the work performed at the property.         Upon review, we

discern no basis on which to grant Appellant relief.

      Appellant seeks judgment notwithstanding the verdict entered against

it.

      A [judgment notwithstanding the verdict] can be entered upon
      two bases: (1) where the movant is entitled to judgment as a
      matter of law; and/or, (2) the evidence was such that no two
      reasonable minds could disagree that the verdict should have
      been rendered for the movant. When reviewing a trial court's
      denial of a motion for [judgment notwithstanding the verdict],
      we must consider all of the evidence admitted to decide if there
      was sufficient competent evidence to sustain the verdict. In so
      doing, we must also view this evidence in the light most
      favorable to the verdict winner, giving the victorious party the
      benefit of every reasonable inference arising from the evidence
      and rejecting all unfavorable testimony and inference.
      Concerning any questions of law, our scope of review is plenary.
      Concerning questions of credibility and weight accorded the
      evidence at trial, we will not substitute our judgment for that of
      the finder of fact. If any basis exists upon which the [court]
      could have properly made its award, then we must affirm the
      trial court's denial of the motion for [judgment notwithstanding
      the verdict]. A [judgment notwithstanding the verdict] should
      be entered only in a clear case.

Prieto Corp. v. Gambone Constr. Co., 100 A.3d 602, 609 (Pa. Super.

2014) (quoting Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa.

Super. 2014)).

      Whether a set of facts establishes a contract is a legal determination.

See Refuse Mgmt. Sys., Inc. v. Consol. Recycling & Transfer Sys.,

Inc., 671 A.2d 1140, 1146 (Pa. Super. 1996).

      In cases involving contracts wholly or partially composed of oral
      communications, the precise content of which are not of record,


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      courts must look to the surrounding circumstances and course of
      dealing between the parties in order to ascertain their intent.

Id.

      Here, despite the longstanding relationship between the parties,

recognized by the trial court and arguably governed by an open service

contract, the record supports the court’s determination that, in the summer

of 2004, the parties entered into a specific, oral contract to govern the HVAC

work performed at the property.      See, e.g., Notes of Testimony (N.T.),

10/14/2013, at 41-46 (Mr. Feldman testifying and providing documentary

evidence of the limited financing available for repairs), 47 (Mr. Feldman

testifying that he and Mr. Boltz discussed the project and agreed that the

service work would be performed for $10,000.00). As we are bound by the

court’s findings and discern no legal error in its determination, Appellant’s

argument to this Court is not persuasive.

      Moreover, we decline to address in detail Appellant’s argument that it

is entitled to additional payment, because the costs incurred to complete the

project were higher than estimated, and the initial estimate was based upon

inaccurate facts supplied by Appellees.     See, e.g., Appellant’s Brief at 19

(citing in support McManus v. City of Phila., 60 A. 1001 (Pa. 1905)). This

argument is premised upon a challenge to the trial court’s findings of fact,

specifically whether the agreed upon cost formed a contract or was merely

an estimate.




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      We reiterate that the record supports the court’s findings and

specifically reject Appellant’s contention that Mr. Boltz merely provided an

estimated cost for the work contemplated. See Prieto Corp., 100 A.3d at

609 (noting our deference to the credibility determinations of the fact

finder); Trial Court Order and Opinion, 04/04/2014, at 4 (implicitly crediting

Mr. Feldman’s testimony regarding the contract amount, based upon

additional testimony and evidence that the amount was dependent upon the

financing available). Accordingly, Appellant’s argument is without merit.

      To the contrary, it is well settled that, “once a contract has been

formed, its terms may be modified only if both parties agree to the

modification and the modification is founded upon valid consideration.”

J.W.S. Delavau, Inc. v. Eastern Am. Transp. & Warehouseing, Inc.,

810 A.2d 672, 681 (Pa. Super. 2002) (citing Corson v. Corson’s Inc., 434

A.2d 1269 (Pa. Super. 1981)); Wilcox v. Regester, 207 A.2d 817, 821 (Pa.

1965) (“An agreement may be modified with the assent of both contracting

parties if the modification is supported by consideration.”).     Here, upon

discovering that the cost of completing the work at the property would

surpass the contract price, Appellant should have informed Appellees

promptly and endeavored to modify the contract’s terms.           It did not.

Accordingly, Appellant was bound by those terms.

      Finally, Appellees have noted several errors in Appellant’s presentation

of its appeal.   See Appellees’ Brief at 13-18.   Based on these errors and


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Appellees’ assertion that this appeal is frivolous, Appellees request that this

Court award them counsel fees and costs, citing in support Canal Side Care

Manor, LLC v. Pa. Human Relations Comm’n, 30 A.3d 568 (Pa. Cmwlth.

2011).   See also Pa.R.A.P. 2744, 2751.          Appellant’s appeal was not

frivolous, merely unpersuasive. Accordingly, we deny Appellees’ request.

      Judgment affirmed. Request for fees and costs denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/2015




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