J-A18022-15
J-A18023-15

                            2015 PA Super 247

MARK ELY                                     IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
     Appellant

                   v.

SUSQUEHANNA AQUACULTURES, INC.
AND DAVID ISOLANO

     Appellees                                  Nos. 2024 MDA 2014, AND
                                                     2025 MDA 2014


           Appeal from the Judgments Entered November 24, 2014
               In the Court of Common Pleas of York County
                    Civil Division at No: 2012-SU-1670-88


MARK ELY                                     IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
     Appellee

                   v.

SUSQUEHANNA AQUACULTURES, INC.
AND DAVID ISOLANO

     Appellants                                    No 2108 MDA 2014


           Appeal from the Judgments Entered November 24, 2014
               In the Court of Common Pleas of York County
                    Civil Division at No: 2012-SU-1670-88


BEFORE: FORD ELLIOTT, P.J.E., STABILE, J., and MUSMANNO, J.

OPINION BY STABILE, J.:                     FILED NOVEMBER 25, 2015

     Mark Ely (“Ely”), Susquehanna Aquacultures, Inc. (“SAI”), and David

Isolano (“Isolano”) have filed appeals from the November 24, 2014

judgments entered in favor of Ely and against SAI for $39,600 and in favor
J-A18022-15
J-A18023-15

of Ely and against both SAI and Isolano for $24,412.34. We affirm in part,

vacate in part, and remand.

       The record reveals that Ely signed a two-year employment contract

with SAI effective from March 2, 2011 to March 2, 2013.         Isolano, the

president of SAI,1 negotiated the contract on behalf of SAI. Ely agreed to

serve as SAI’s vice president. SAI terminated Ely’s employment on April 2,

2012 and paid him no further wages or benefits.

       Ely commenced this action on April 18, 2012.    In his June 10, 2013

third amended complaint he alleged causes of action for breach of contract

and violation of the Wage Payment and Collection Law (“WPCL”), 42 P.S.

§ 260.1 et seq. Ely sought to recover $79,539.83 in lost wages and fringe

benefits.   The trial court conducted a jury trial on the breach of contract

action beginning on January 13 and concluding on January 15 of 2014. The

jury found SAI in breach of the employment contract and returned a verdict

in Ely’s favor for $39,600.00 in lost wages. By the parties’ agreement, the

trial court conducted a hearing on Ely’s WPCL claim on February 10, 2014.

On July 25, 2014, the trial court awarded Ely $24,142.00 in attorneys’ fees

pursuant to 42 P.S. § 260.9a(f). Ely filed a post-trial motion, pursuant to

which the trial court granted Ely $270.34 in costs but otherwise denied


____________________________________________


1
  Isolano became president of SAI after a group of investors purchased SAI
on March 1, 2011. N.T. Trial, 1/13-15/14, at 290-91.



                                           -2-
J-A18022-15
J-A18023-15

relief.     Both parties filed timely appeals, which we have consolidated for

review.

          We will begin with a review of Ely’s appeal at docket numbers 2024

MDA 2014 and 2025 MDA 2014. Ely raises nine issues for our review:

               A. Whether the trial court erred in not granting judgment
                  notwithstanding the jury’s verdict on [Ely’s] breach of
                  contract claim?

               B. Whether the trial court erred in not granting a new trial
                  on damages because the jury’s verdict was against the
                  weight of the evidence produced at trial?

               C. Whether the trial court erred in not granting judgment
                  notwithstanding the verdict on the [WPCL] claim?

               D. Whether the trial court erred in not granting a new trial
                  on damages based upon the [WPCL] claim?

               E. Whether the trial court made an error of law in not
                  awarding liquidated damages pursuant to the [WPCL]?

               F. Whether the trial court made an error of law in not
                  calculating the lodestar in determining the amount of
                  attorneys’ fees to be awarded to [Ely] based upon his
                  [WPCL] claim?

               G. Whether the trial court abused its discretion in awarding
                  only $24,142 for attorneys’ fees?

               H. Whether the trial court erred in refusing to grant pre-
                  judgment interest to [Ely]?

               I. Whether the trial court erred in awarding only $270.34
                  for costs and litigation?

Ely’s Brief at 6-7.

          Ely first argues that the trial court erred in denying his motion for

judgment notwithstanding the verdict (“JNOV”) on Ely’s breach of contract

claim.      Ely argues that the jury, upon finding SAI liable for breach of

                                       -3-
J-A18022-15
J-A18023-15

contract, was required to award Ely $79,539.83 in lost wages and fringe

benefits rather than the lesser amount.      Ely argues that a compromise

verdict is inappropriate in a breach of contract case where the record clearly

establishes the plaintiff’s damages. Our standard of review is well settled:

             A JNOV 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
      JNOV, 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 jury could
      have properly made its award, then we must affirm the trial
      court’s denial of the motion for JNOV. A JNOV should be entered
      only in a clear case.

Egan v. USI Mid-Atl., Inc., 92 A.3d 1, 19-20 (Pa. Super. 2014), appeal

granted, 108 A.3d 30 (Pa. 2015).

      Damages for a breach of contract should place the aggrieved party in

“as nearly as possible in the same position [it] would have occupied had

there been no breach.” Helpin v. Trustees of Univ. of Pennsylvania, 10

A.3d 267, 270 (Pa. 2010). To that end, the aggrieved party may recover all

damages, provided “(1) they were such as would naturally and ordinarily

result from the breach, or (2) they were reasonably foreseeable and within

the contemplation of the parties at the time they made the contract, and (3)

                                     -4-
J-A18022-15
J-A18023-15

they can be proved with reasonable certainty.”          Id. at 270.      “In an

employment case, the measure of damages is the wages which were to be

paid less any amount actually earned or which might have been earned

through the exercise of reasonable diligence in seeking other similar

employment.” Delliponti v. DeAngelis, 681 A.2d 1261, 1265 (Pa. 1996).

      Ely testified   that   his alleged   $79,539.83   in damages included

$61,222.58 in lost wages and the remainder in fringe benefits. Ely testified

that he would have received $73,232.50 in wages from the date of his

termination through the expiration of the contract, but he procured similar

work at Aqua Life, Inc., in which he holds a one-third ownership interest,

and thereby mitigated his damages by $12,009.92. In sum, Ely argues that

the amount of damages was “easily and precisely ascertainable” in this case.

Ely’s Brief at 20.

      Ely disputes whether the jury’s award of $39,600.00, an apparent

compromise verdict, was permissible in this case.

             Compromise verdicts are verdicts where the fact-finder is
      in doubt as to the defendant’s liability vis-à-vis the plaintiff’s
      actions in a given suit but, nevertheless, returns a verdict for the
      plaintiff in a lesser amount than it would have if it was free from
      doubt. Compromise verdicts are favored in the law. Although
      more commonplace in negligence cases tried before juries, such
      verdicts are equally appropriate in contract cases tried before
      the bench.

Morin v. Brassington, 871 A.2d 844, 852-53 (Pa. Super. Ct. 2005)

(citations omitted). In any event, this Court “will not disturb a verdict unless

the ‘injustice of the verdict should stand forth like a beacon.’” Frank Burns,

                                     -5-
J-A18022-15
J-A18023-15

Inc. v. Interdigital Commc’ns Corp., 704 A.2d 678, 682 (Pa. Super.

1997).

       In Morin, the plaintiff in a breach of oral contract action alleged he

worked 40 hours per week year-round for 11 years with no time off for

vacation.    Morin, 871 A.2d at 852.    The trial court found the plaintiff not

credible and calculated damages based on a 30-hour workweek and 48

weeks of work per year. Id. This Court held the verdict was proper because

no records existed to prove the numbers of hours the plaintiff worked, and

because the trial court was free to disbelieve the plaintiff’s testimony. Id. at

853.     In Frank Burns, Inc., another breach of contract action, the trial

court found that both parties engaged in blameworthy conduct.               Frank

Burns, Inc., 704 A.2d at 681. The trial court, lacking “a clear measure of

damages,” fashioned a compromise verdict whereby the plaintiff received

compensation for 425 hours of work rather than the 491 hours for which the

plaintiff sought recovery. Noting that “[s]uch compromises in determining

damages are commonplace in litigation and are looked upon with favor by

the courts[,]” this Court affirmed the verdict. Id. at 682.

       Instantly,   SAI   asserted   various   bases   for    terminating    Ely’s

employment:

       (a)   Not devoting his best efforts to his position and being
             derelict in his duties including defects in management,
             oversight in implementing adequate controls;

       (b)   Failing to track and maintain accurate records of feed;



                                      -6-
J-A18022-15
J-A18023-15

        (c)   Failing to implement policies and procedures as required;

        (d)   Failing and being unable to offer solutions to manage
              [SAI];

        (e)   Borrowing property of [SAI] for another farm in which
              [Ely] had a financial interest without approval of [SAI] and
              then lying to cover up these actions;

        (f)   Misappropriating [SAI] property to his own benefit;

        (g)   Failing to properly manage the fish stock resulting in loss
              of inventory;

        (h)   Exhibiting poor management skills and not placing people
              who were qualified in charge of various aspects of [SAI’s]
              operations;

        (i)   Improperly soliciting [SAI] employees to work on another
              fish farm in which [Ely] had an ownership interest while
              employed at [SAI];

        (j)   Falsifying reports to [SAI] about the performance of his
              duties;

        (k)   Permitting a company             culture   of   lies,   deceit   and
              intimidation at [SAI].

SAI’s Answer and New Matter to Ely’s Third Amended Complaint, 7/1/13, at

¶ 9.2

        Ely and Isolano offered competing accounts of the events leading to

Ely’s termination. For his part, Ely asserted that SAI and Isolano terminated

his employment because SAI was in financial distress not of Ely’s making. A

____________________________________________


2
    The employment contract required Ely to perform his duties to the
“reasonable satisfaction” of SAI. Ely’s Third Amended Complaint, 6/10/13,
at Exhibit A, ¶ 3. On appeal, SAI and Isolano did not challenge the finding
that SAI breached the contract.



                                           -7-
J-A18022-15
J-A18023-15

flood devastated the farm in September of 2011. Id. at 123-26. After the

cleanup, SAI needed approximately twelve months to restock and regrow

marketable fish. Id. As a result, SAI laid off several employees in March of

2012.     Id. at 127.     Ely testified that Isolano was unable to procure

conventional financial lending to support the farm. Id.

        Ely testified that he never learned of Isolano’s concerns about Ely’s

performance until Isolano fired him, or in some cases until Isolano’s

deposition. N.T. Trial, 1/13-15/14, at 55-56, 65, 70-71, 75-76, 78-79, 92,

94, 96-102.      Ely acknowledged, however, that the agreement permitted

termination without notice.     Id. at 151, 199-200.     He also acknowledged

mishaps that occurred under his management, including inaccuracies in the

fish count and feed inventory, and several instances in which fish died due to

mistakes. Id. at 160-71.

        Ely was responsible for reporting to the United States Fish and Wildlife

Commission the amounts of Chloramine-T SAI used. Id. at 172. Ely signed

a consultant’s name on the report.      Id. at 173-76.    In addition, SAI was

required to make reports for its National Pollution Discharge permit

concerning the pH level of water SAI discharged into the Susquehanna River.

Id. at 176.     Ely acknowledged that he reported pH levels without taking

measurements. Id. at 177. Ely failed to replace a $25 pH pen—a device

used for measuring pH levels in water—after SAI lost its pH pen in the

September 2011 flood. Id. at 177-78.


                                      -8-
J-A18022-15
J-A18023-15

       Concerning Ely’s mitigation of damages at Aqua Life, Ely testified he

worked at Aqua Life for 30 hours per week after his termination from SAI.

Id. at 189.     Ely has a one-third interest in Aqua Life.         Id. at 190.3   He

received wages from Aqua Life reported on a W-2 and ownership income

reported on a K-1 form.           Id. at 190-91.       As an owner, he can deduct

business losses from any taxable income. Id. at 190. Isolano testified that

Ely told Isolano he was merely a passive investor in Aqua Life. Id. at 264.

Ely testified that he did not earn money for his ownership interest in Aqua-

Life because it was not profitable. Id. at 58.

       Isolano testified that he bought SAI in part because it had a good

team, including Ely. Id. at 248. Ely worked at SAI for more than twenty

years before Isolano purchased it.             Id. at 249.   Isolano became unhappy

with Ely’s performance because Ely was unable to account for $280.00 per

week in unaccounted fish feed inventory. Id. at 251-52. Isolano testified

that lost or missing feed inventory would cost SAI roughly $15,000.00 per

year at that rate.      Id.    Shortly after the September, 2011 flood, Isolano

purchased locks for the feed trailer and missing feed inventory ceased to be

a problem. Id. at 253-54. Likewise, at various times the fish inventory was

20, 30 or as much as fifty percent lower than what Isolano expected it to be.
____________________________________________


3
   Brent Blauch (“Blauch”) owns the other two thirds of Aqua Life. Id. at
214. Blauch is the former owner of SAI, and he sold it to the investment
group that made Isolano the president. Id. Blauch testified that he
negotiated the sale with Isolano. Id.



                                           -9-
J-A18022-15
J-A18023-15

Id. 255.   Isolano claimed Ely and other members of the staff blamed the

loss of fish on predators, such as birds. Id. at 255-56. Isolano testified that

thousands of fish died for lack of oxygen because the staff failed to attach

extra oxygen lines to a raceway and because the staff failed to install a

screen that would allow excess feed—which absorbs oxygen—to flow out of

the raceway. Id. at 259. Isolano also testified that SAI lost a shipment of

purebred striped bass due to the error of Ely or employees under his

oversight. Id. at 271-75.

      Ultimately, the jury found SAI in breach of its employment contract

with Ely, and the jury found that Ely did mitigate his damages. Ely argues

that SAI and Isolano did not offer evidence to contradict his $79,539.83 in

alleged damages.    Therefore, according to Ely, the jury was required to

award that amount upon finding SAI in breach of the employment contract.

Ely argues the lesser amount does not put him in the position he would have

been in absent the breach, in accordance with Helpin. Given the state of

the record, however, we cannot conclude the jury’s compromise verdict

constitutes an injustice that “stands forth like a beacon.”     Frank Burns,

Inc., 704 A.2d at 682.      Isolano described several significant and costly

mistakes that occurred at SAI under Ely’s management. Possibly, the jury

issued a compromise verdict based on its belief that Ely’s mistakes did not

warrant termination but did warrant a lesser damages award in his favor.




                                    - 10 -
J-A18022-15
J-A18023-15

Compromise verdicts, as we noted above, are favored in the law.                We

discern no basis for disturbing the jury’s verdict in this case.

       Next, Ely argues the jury’s inadequate damages award warranted a

new trial. Here, Ely’s motion for a new trial rests on his argument that the

trial court committed an error of law in allowing the compromise verdict to

stand. We therefore need only discern whether the trial court committed an

error of law.      Egan, 92 A.3d at 12.            For the reasons we explained in

connection with Ely’s first argument, we discern no error of law in the trial

court’s decision to allow the compromise verdict to stand.

       Ely’s third assertion of error is that the trial court erred in denying

Ely’s motion for judgment notwithstanding the verdict on his WPCL claim.

Ely argues he is entitled, under the WPCL, to the value of the wages and

fringe benefits SAI would have paid him for the remainder of the contract

term.4

       “The WPCL was enacted to provide employees a means of enforcing

payment of wages and compensation withheld by an employer.” Voracek v.

Crown Castle USA Inc., 907 A.2d 1105, 1109 (Pa. Super. 2006), appeal

denied, 919 A.2d 958 (Pa. 2007). “Generally, the underlying purpose of the

WPCL is to remove some of the obstacles employees face in litigation by

providing them with a statutory remedy when an employer breaches its
____________________________________________


4
   Ely acknowledges that any recovery under the WPCL would be offset by
the amount the jury awarded him on his breach of contract claim.



                                          - 11 -
J-A18022-15
J-A18023-15

contractual obligation to pay wages.”       Id. (quoting Oberneder v. Link

Computer Corp., 674 A.2d 720, 722 (Pa. Super. 1996). “In essence, the

primary goal of the WPCL is to make whole again, employees whose wages

were wrongfully withheld by their employers.” Id. SAI and Isolano argue

that the WPCL does not apply to this case because Ely’s claim is for future

wages rather than wages for work performed.        That is, SAI and Isolano

argue that the WPCL does not provide a remedy for expectation damages.

     We begin by examining the statutory language.        The WPCL defines

wages as all earnings, fringe benefits and wage supplements.         43 P.S.

§ 260.2a.   The WPCL defines fringe benefits or wage supplements as “all

monetary employer payments to provide benefits under any employe [sic]

benefit plan [. . .] as well as separation, vacation, holiday, or guaranteed

pay; reimbursement for expenses; union dues withheld from the employes'

pay by the employer; and any other amount to be paid pursuant to an

agreement to the employe [sic].”       Id. (emphasis added).    Ely relies on

the bolded portion of this quote to support his argument that he can recover

future unearned wages because he was entitled to those wages pursuant to

an agreement.

     We observe several flaws in Ely’s argument.      First, he relies on the

definition of fringe benefits and wage supplements rather than the definition

of wages. Second, the bolded language provides no guidance as to whether

the WPCL applies to expectation damages in the event of termination of an


                                   - 12 -
J-A18022-15
J-A18023-15

employment contract.    Third, Ely relies on precedent, primarily Shaer v.

Orthopaedic Surgeons of Cent. Pennsylvania, Ltd., 938 A.2d 457, (Pa.

Super. 2007), which undercuts his argument.      In Shaer, the plaintiff was

employed pursuant to a contract that required the employer to provide the

employee ninety days of salary and benefits upon notice of termination. Id.

at 458-61.    The employee filed suit under the WPCL when the employer

terminated and failed to provide the ninety days’ salary and benefits. The

trial court rejected the employee’s claim, reasoning that it was a claim for

unearned wages.     Id. at 464.     This Court reversed, holding that the

employee could recover the severance pay under the WPCL.        “Although a

number of WPCL cases are either federal, trial level, or unpublished, and,

therefore, not controlling, there seems to be consensus among them that

severance pay and other separation related contractual arrangements are

indeed covered by the WPCL.”       Id. at 465.     The Court relied on an

unpublished memorandum from the Eastern District of Pennsylvania for the

proposition that contractual separation pay is recoverable under the WPCL

because separation pay is distinct from “potential lost future earnings,

which are not covered by the WPCL.”          Id. at 465 (emphasis added)

(citing Barsky v. Beasley Mezzanine Holdings, 2004 WL 1921156 (E.D.

Pa. No. 04-1303, August 30, 2004) (unpublished memorandum)). Further,

the Shaer Court relied on the incorporation of separation pay in the

statutory definition of fringe benefits and wage supplements. Id.


                                   - 13 -
J-A18022-15
J-A18023-15

      Based on Shaer, Ely argues this Court should hold that expected

future earnings under an employment contract are recoverable under the

WPCL because they constitute “any other amount to be paid pursuant to an

agreement to the employe [sic]” pursuant to § 260.2a of the WPCL. To the

contrary, Shear expressly distinguished contractual separation pay from

expected future earnings, noting that § 260.2a expressly includes separation

pay within its definition of fringe benefits.

      Instantly, Ely does not seek contractual separation pay. He does not

argue that his employment contract provided for separation pay. Rather, he

seeks future earnings. While precedent on this issue is limited, courts have

uniformly held that the WPCL does not apply to future earnings.     Shear;

Weingrad v. Fischer & Porter Co., 47 Pa.D. & C.2d 244, 250 (Bucks

County 1968) (holding that the WPCL did not apply to the employee’s

expected post-termination earnings); Scully v. US Wats, Inc., 238 F.3d

497, 516 (3d Cir. 2001) (“We agree with the general proposition that the

WPCL does not give rise to claims for unearned compensation.”); Barsky;

Allende v. Winter Fruit Distributors, Inc., 709 F. Supp. 597, 599

(E.D.Pa. 1989) (“The WPCL applies only to back wages already earned.”).

      Furthermore, § 260.5 of the WPCL, tilted “Employes [sic] who are

separated from payroll before paydays”, provides as follows:

           (a) Separated Employes.--Whenever an employer
      separates an employe from the payroll, or whenever an
      employe quits or resigns his employment, the wages or
      compensation earned shall become due and payable not

                                      - 14 -
J-A18022-15
J-A18023-15

      later than the next regular payday of his employer on
      which such wages would otherwise be due and payable. If
      requested by the employe, such payment shall be made by
      certified mail.

43 P.S. § 260.5(a).   Thus, § 260.5 expressly applies to earned wages for

work performed and makes no provision for unearned future wages.             In

short, the statutory language and the available precedent uniformly

contradict Ely’s argument. We therefore conclude that the WPCL does not

apply to Ely’s future earnings under the employment contract.              Ely’s

recovery of future earnings is limited to his recovery of expectation damages

for his successful breach of contract cause of action, and not for any claim

under the WPCL.

      Ely’s fourth, fifth, sixth and seventh arguments on appeal all pertain to

his WPCL claim.     He asserts, respectively, that the trial court erred in

denying his motion for a new trial on the WPCL claim; that the trial court

erred in declining to award liquidated damages pursuant to the WPCL, and

that the trial court made several errors in calculating its award of attorneys’

fees pursuant to the WPCL. Since we have concluded that the WPCL does

not apply, we need not address these arguments.

      Ely’s eighth assertion of error is that the trial court erred in declining

to award prejudgment interest. The trial court determined that it could not

award prejudgment interest because Ely failed to request prejudgment

interest in his prayer for relief in his third amended complaint. Ely argues




                                    - 15 -
J-A18022-15
J-A18023-15

that the trial court erred, and that he is entitled to prejudgment interest as

of right.

      The trial court in denying prejudgment interest relied on Snyder v.

Barber, 106 A.2d 410 (Pa. 1954). In Snyder, the plaintiff filed an equitable

action seeking to force the Commonwealth’s auditor general to pay amounts

he believed to be due him under legislative salary increases.     Id. at 411.

The trial court entered judgment in favor of the plaintiff without interest.

Id. The plaintiff did not request interest on the amount due him until the

trial court asked both parties to submit a final decree. Id. at 412. The trial

court declined to award interest and the Supreme Court affirmed:           “A

complainant can be afforded such relief only as he is entitled to under the

allegations of the bill. Id. (emphasis in original). “The order or decree of a

court of chancery should conform to the prayer in the bill.” Id. (emphasis in

original).

      The equitable principles cited in Snyder have no application to the

instant action at law.   Ely properly cites Fernandez v. Levin, 548 A.2d

1191, 1193 (Pa. 1988), in support of his argument. Therein, the Supreme

Court cited the well-established principle that “[t]he award of interest in a

contract action is a matter of right regardless of when it is demanded.” Id.

We further observe that Pennsylvania follows the Restatement (Second) of

Contracts, § 354 with regard to prejudgment interest. Pursuant to § 354(1),

prejudgment interest is a matter of right where the amount is ascertainable


                                    - 16 -
J-A18022-15
J-A18023-15

from the contract.   Cresci Constr. Servs., Inc. v. Martin, 64 A.3d 254,

260 (Pa. Super. 2013). Where the amount due and owing is not sufficiently

definite, prejudgment interest is awardable at the discretion of the trial

court. Id.

      Based on the foregoing, the trial court erred in relying on Snyder to

deny Ely’s request for prejudgment interest.      Regardless, SAI and Isolano

argue the trial court’s decision was correct, inasmuch as Ely’s damages were

not ascertainable from the complaint.      Ely counters that the value of the

unpaid remainder of his salary and fringe benefits is ascertainable, and that

he is entitled to prejudgment interest as of right.

      For an answer, we turn to the language of § 354:

            (1) If the breach consists of a failure to pay a definite sum
      in money or to render a performance with fixed or ascertainable
      monetary value, interest is recoverable from the time for
      performance on the amount due less all deductions to which the
      party in breach is entitled.

             (2) In any other case, such interest may be allowed as
      justice requires on the amount that would have been just
      compensation had it been paid when performance was due.

Restatement (Second) of Contracts § 354 (1981).

      When a plaintiff sues for breach of contract action to recover a

liquidated amount and the jury enters a verdict for a lesser amount the

plaintiff still is entitled to prejudgment interest on the lesser amount.   In

Burkholder v. Cherry, 607 A.2d 745 (Pa. Super. 1992), the plaintiff

contractor sued the defendant homeowners for the balance due under a



                                     - 17 -
J-A18022-15
J-A18023-15

construction contract. The contract price for the home was $64,185. Id. at

746.    The contractor also alleged $3,589.19 in extra work.          Id.   The

defendants paid the contractor $35,301.75.       Id.    The contractor therefore

alleged a balance due of $32,472.44.           Id.     The homeowners filed a

counterclaim, alleging the contractor’s work was defective and incomplete.

Id. The jury entered a verdict of $18,000 in favor of the contractor. Id.

       The homeowners argued that the verdict was for an unliquidated sum

because it was impossible to ascertain whether the jury found in their favor

on a portion of their counterclaim.           Id. at 747.     This Court, after

acknowledging that the law is as stated in the Restatement (Second) of

Contracts §354, disagreed:

             The basis for the contractor’s recovery in the instant case
       was the construction contract which he had with the owners.
       Whether the damages were based on the terms of the contract
       or on quantum meruit, it is clear that the owners have had the
       use of the contractor’s money since the date on which it was
       due. The amount owed, moreover, was sufficiently ascertainable
       so that a tender could have been made. We hold, therefore,
       that where, as here, the claim is for work done and services
       rendered, the claimant is entitled to recover pre-judgment
       interest.

Id. at 748.

       The rule expressed in Burkholder has long been the law in

Pennsylvania. In Oxford Mfg. Co., Inc. v. Cliff House Bldg. Corp., 307

A.2d 343 (Pa. Super. 1973), this Court wrote as follows:

             The lower court in its opinion stated that since defendant
       disputed plaintiff’s claim because of defective items, the claimed
       sum, although based on contracts, was not liquidated and that

                                     - 18 -
J-A18022-15
J-A18023-15

      therefore interest did not accrue thereon. We disagree. In
      West Republic Mining Co[.]v. Jones & Laughlins, 108 Pa. 55
      (1884), an early but leading case, plaintiff sued to recover the
      price of certain ore sold and delivered to defendant, defendant
      refusing to pay on grounds that the ore did not conform to
      samples. The lower court instructed the jury that in their
      discretion they could allow or disallow interest. The Supreme
      Court of our Commonwealth held this instruction to be error and
      further held: ‘A dispute has arisen respecting the performance
      of the contract by the plaintiffs, and the amount of the debt,
      [b]ut however determined, the debt arises from contract.’

Id. at 344-45. This Court both in Oxford and Burkholder emphasized that

simply because a jury returns a verdict in an amount less than that prayed

for does not convert an otherwise liquidated amount into an unliquidated

amount upon which interest does not accrue. Burkholder 607 A.2d at 748

(citing cases); Oxford 307 A.2d at 344-45. If the rule were otherwise, a

breaching party could always defeat a claim for pre-judgment interest by,

for example, asserting a counterclaim. Id. We therefore conclude that Ely

was entitled to prejudgment interest as of right on the amount of the

judgment in his favor on his breach of contract action. The trial court erred

in finding otherwise.

      Ely’s final argument is that the trial court erred in awarding only

$270.34 in litigation costs representing payment for his filing fee and

Sheriff’s service fees.   Ely believes he is entitled to $2,348.12 in costs,

including items such as witness fees, copy expenses, and transcript

preparation.




                                    - 19 -
J-A18022-15
J-A18023-15

      The trial court, citing Zelenak v. Mikula, 911 A.2d 542 (Pa. Super.

2006), held that record costs—i.e. the filing fee and Sheriff’s service—are

recoverable, whereas actual costs such as witness fees and transcript

preparation are not. The Zelenak Court wrote: “It is a general rule in our

judicial system, stemming from the Statute of Gloucester, 6 Edw. 1, c. 1

(1275), that costs inherent in a law suit are awarded to and should be

recoverable by the prevailing party.” Id. at 544. “Important to our analysis

of all of Appellant’s issues is the distinction between record costs (such as

filing fees) and actual costs (such as transcript costs and witness fees).” Id.

“[T]he law is clear that, absent specific statutory authority otherwise, only

record costs of proceedings in court are recoverable, and not costs of

preparation, consultation, or fees generally[.]” Id. at 545 (quoting Harmer

v. Horsham Hospital, Inc., 431 A.2d 1187, 1188 (Pa. Commw. 1981)).

      Thus, the trial court correctly applied the applicable rule, and Ely does

not cite any statutory authority requiring a different result in this case.

Rather, he relies on Smith v. Rohrbaugh, 54 A.3d 892 (Pa. Super. 2012).

In Smith, the prevailing party sought record and actual costs. Id. at 897-

98. The trial court declined that request and asked the prevailing party to

submit a request for record costs only.      Id. at 898.   The prevailing party

failed to do so, and therefore the trial court denied all costs. Id. This Court

reversed, and held the prevailing party was entitled to $339.93 in record

costs, including filing fees and nominal copying fees for exhibit books the


                                    - 20 -
J-A18022-15
J-A18023-15

trial court ordered the prevailing party to prepare. Id. The costs of exhibit

books were appropriate because the trial court ordered them pursuant to a

pretrial order and the parties therefore had no discretion in the matter. Id.

This Court declined to award the prevailing party’s request of more than

$10,000.00 in actual costs, including expert witness fees. Id.

      Here, the record indicates that the trial court ordered preparation of

exhibit books. Amended Order Preliminary to Trial of Civil Case, 11/4/13, at

2-3. Ely represents that he incurred $675.59 in costs in preparing exhibit

books. We therefore remand for a revised order of costs including the costs

associated with preparation of exhibit notebooks pursuant to the court’s pre-

trial order.

      Having disposed of all of Ely’s arguments, we now consider the appeal

of SAI and Isolano at docket number 2018 MDA 2014. SAI and Isolano raise

three issues:

      A. The trial court erred in its application of the coordinate
         jurisdiction rule in determining that the [WPCL] applied to this
         case.

      B. The trial court erred in denying SAI and Isolano’s motion in
         limine regarding the [WPCL] where Ely’s claim was for
         unearned wages.

      C. The trial court erred in allowing evidence of SAI’s farm service
         agency claim where the evidence was unfairly prejudicial.

Brief of SAI and Isolano, at i.   We have already concluded that the WPCL

does not apply to Ely’s claim for unearned wages. For this reason, we will




                                    - 21 -
J-A18022-15
J-A18023-15

vacate the trial court’s order awarding Ely attorneys’ fees pursuant to the

WPCL. We need not address issues A and B further.

      The final assertion of error from SAI and Isolano is that the trial court

erred in permitting Ely to introduce evidence of an allegedly inaccurate

application for federal disaster relief from the Farm Service Administration

(“FSA”) after an unexpected heatwave killed a large number of fish at SAI.

Specifically, Ely introduced evidence purporting to show that Isolano grossly

overrepresented the number of fish mortalities at SAI in order to qualify for

relief. Admission of evidence rests within the trial court’s discretion, and we

will reverse only if we find an abuse of discretion. Klein v. Aronchick, 85

A.3d 487, 498 (Pa. Super. 2012), appeal denied, 104 A.3d 5 (Pa. 2014).

“Thus our standard of review is very narrow[.]         To constitute reversible

error, an evidentiary ruling must not only be erroneous, but also harmful or

prejudicial to the complaining party.”       Id.   SAI and Isolano argue that

evidence regarding the disaster relief application was inadmissible because

its probative value was outweighed by the danger of unfair prejudice, as per

Pa.R.E. 403.   “Unfair prejudice supporting exclusion of relevant evidence

means a tendency to suggest decision on an improper basis or divert the

jury’s attention away from its duty of weighing the evidence impartially.”

Klein, 85 A.3d at 498.     “A witness can be contradicted only on matters

germane to the issue trying. There is no rule more firmly established than

this: ‘No contradiction shall be permitted on collateral matters.’” Id. at 500


                                    - 22 -
J-A18022-15
J-A18023-15

(quoting Hammel v. Christian, 610 A.2d 979, 984 (Pa. Super. 1992),

appeal denied, 624 A.2d 111 (Pa. 1993)).

       Ely testified that SAI’s FSA application indicated that SAI lost 366,868

fish as a result of the flood. N.T. Trial, 1/13-15/14, at 120. Ely testified the

number was 51,707. Id. SAI and Isolano objected to the admission of this

evidence, but the trial court found it admissible because it was relevant to

support Ely’s assertion that Isolano fired him because SAI was in serious

financial trouble and not because Ely’s performance was deficient.                   Trial

Court Opinion, 11/17/14, at 6-8.               The trial court also observed that it

permitted Isolano to introduce evidence explaining the discrepancy, which

Isolano did.5

       We cannot conclude that the trial court’s decision to admit this

evidence warrants a new trial.           SAI and Isolano rely on Klein, a medical

malpractice suit in which the plaintiff claimed she developed kidney disease

as a result of her use of a drug manufactured by the defendant. Klein, 85

A.3d at 489. The trial court permitted the defense to examine the plaintiff

about her history of bulimia. Id. at 500. During a deposition, the plaintiff

denied    having    bulimia,    but     the    plaintiff’s   medical   records   indicated

otherwise.    Id. at 498-500.         The history of bulimia, if plaintiff had such a

____________________________________________


5
   Isolano testified that Ely relied on piecemeal documentation to support his
allegation that Isolano overrepresented the number of fish mortalities. N.T.
Trial, 1/13-15/14, at 276-82.



                                           - 23 -
J-A18022-15
J-A18023-15

history, occurred decades prior to the events giving rise to the litigation and

had no bearing on the plaintiff’s kidney disease. Id. at 498. The defense

used the issue purely to challenge the plaintiff’s credibility.    This Court

concluded that a new trial was necessary because the plaintiff’s history of

bulimia, or lack thereof, had nothing to do with the issues before the trial

court. Id. at 500-01.

      Instantly, unlike in Klien, the challenged evidence relates to the time

period relevant to the litigation. This case is further distinct from Klein in

that both parties used the FSA application issue to cast aspersions on the

other side’s credibility.   Ely introduced documentation to support his

assertion that Isolano overrepresented the number of fish mortalities.

Isolano testified, consistently with his assertions of other deficiencies in

record keeping under Ely’s management, that Ely compiled data that was

inaccurate, incomplete, and unreliable. As a matter of law, we cannot say

the trial court abused its discretion in admitting the FSA evidence. Further,

the accuracy of the FSA application was a small piece of a substantial body

of evidence the parties placed before the jury over the course of the trial.

To the extent the trial court may have erred in permitting Ely to examine

Isolano on the accuracy of the FSA application, we conclude the error was

harmless.

      Based on all of the foregoing, we vacate the judgment of November

24, 2014 awarding $24,412.34 in attorneys’ fees pursuant to the WPCL. We


                                    - 24 -
J-A18022-15
J-A18023-15

affirm the judgment of $39,600.00 against SAI in all respects except for the

trial court’s award of costs and its refusal to award prejudgment interest.

On those issues, we vacate and remand for further proceedings consistent

with this opinion.

      Judgment of $24,412.34 vacated. Judgment of $39,600.00 affirmed in

part and vacated in part. Case remanded for further proceedings consistent

with this opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/25/2015




                                     - 25 -
