J-S11018-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.E. PONTZ SONS, INC.                           IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

PURCELL CONSTRUCTION COMPANY

                          Appellant                  No. 1269 MDA 2014


              Appeal from the Judgment Entered August 26, 2014
               In the Court of Common Pleas of Lancaster County
                        Civil Division at No(s): 11-03550


BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED SEPTEMBER 01, 2015


      Purcell Construction Company (“Purcell”) appeals from the judgment

entered on August 26, 2014, in the Court of Common Pleas of Lancaster

County. Following a bench trial, the court entered judgment in favor of C.E.

Pontz Sons, Inc. (“C.E. Pontz”) in the amount of $11,247.10, plus interest

and costs. On appeal, Purcell raises the following three arguments: (1) did

the trial court err in finding the contract was modified orally; (2) did the

court err in failing to find C.E. Pontz breached the contract; and (3) did the

court err in failing to award attorney’s fees to Purcell.      Based on the

following, we affirm.

      The trial court made the following findings of fact:

         1.    On or about June 9, 2006, [C.E. Pontz] and [Purcell]
               entered into a Subcontract Agreement regarding
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              landscaping work at Twin Valley High School, Elverson,
              Pennsylvania.

       2.     The original contract price for the subcontract was
              $3,500 with [C.E. Pontz] to provide seeding and lawn
              restoration work.

       3.     The provisions of the contract were clear that all change
              orders must be in writing, approved by [Purcell], and, in
              addition, approval for payment must be given by the
              Owner (Twin Valley High School) and Architect (Schrader
              Group Architecture). These change orders were to be
              submitted prior to work done.

       4.     Mrs. Ober, project coordinator for [C.E. Pontz], and Mr.
              Kashatus, site director for [Purcell], had many
              discussions regarding work done on site in addition to the
              work included in the $3,500 contract price.

       5.     Much work appears to have been done by [C.E. Pontz]
              above that value, yet [C.E. Pontz] failed to submit any
              change orders until well after they completed their
              portion of the job; months later submitting a letter
              request for additional payments.

       6.     [C.E. Pontz] received all information regarding the pre-
              bid specifications well in advance of the bid, and the
              grade of the land was clearly visible from even a cursory
              glance at the site.

       7.     [C.E. Pontz] clearly did work beyond the scope of the
              initial contract, and [Purcell] admits same.

       8.     [Purcell] submitted [C.E. Pontz]’s claim to the Owner and
              Architect allowing for an additional payment to be
              approved of $13,455.56. Said payment was made in full
              to [C.E. Pontz] per the AIA Application for Payment
              Forms.




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          9.   [C.E. Pontz] then submitted a payment application on or
               about January 18, 2008, marked “Final,” which showed a
               balance due under the Agreement of zero (0) dollars.[1]

          10. [Purcell] received no additional communications or formal
              claims for any amounts due under the Agreement or any
              added charge order requests from [C.E. Pontz] for nearly
              two years and nine months after the “Final” payment and
              zero balance mentioned hereinabove.

Trial Court Opinion, 8/28/2013, at 1-2.

       C.E. Pontz filed a complaint on March 30, 2011, and amended

complaint on May 13, 2011, raising causes of action for breach of contract

and unjust enrichment.         Purcell filed an answer on July 22, 2011.   The

matter went to arbitration, and on May 12, 2012, an award was entered in

for favor of C.E. Pontz in the amount of $28,611.77.

       Purcell then appealed the arbitration award.     A one-day bench trial

took place on April 29, 2013. Subsequently, on August 28, 2013, the court

entered the following order:

             AND NOW this 28th day of August 2013, upon
       consideration of the testimony and evidence presented at trial
       and in written closing arguments, findings of facts, and
       conclusions of law, as submitted by the parties, it is hereby
       ORDERED AND DECREED that judgment is entered for [C.E.
       Pontz] in the additional amount of $11,247.10 plus interest and
       costs. There is no award for attorneys’ fees for either party in
       this matter.

____________________________________________


1
  The zero balance referenced in the trial court’s findings of fact was on the
application for payment of the $16,955.56 amount that Purcell submitted to
the school district. See Defendant’s Exhibit 2, Application and Certificate for
Payment, 1/18/2006.



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Order, 8/28/2013. In support of its conclusion, the court made the following

conclusions of law:

            [C.E. Pontz] clearly failed to file timely and appropriate
     work change orders and [Purcell] clearly observed without
     objection added work being done by [C.E. Pontz] at the work site
     for which [Purcell] could not have known would be approved for
     payment by Owner or Architect. Under 42 Pa.C.S. § 2503(9),
     attorney’s fees may be awarded to a party when the opposing
     party has commenced the matter in bad faith. Although the
     Court finds both Ms. Ober and Mr. Kashatus could have, no
     doubt, supervised better, the Court finds no bad faith on the part
     of the actual parties in this case in bringing the action. Because
     the Court finds no breach of contract or breach of duty of good
     faith in bringing the action, no attorney’s fees are awarded.

           [Purcell] did not waive the non-written modification
     requirements; however, “when an owner requests a builder to do
     extra work, promises to pay for it and watches it performed
     knowing that it is not authorized in writing, he cannot refuse to
     pay on the ground that there was no written change order.”
     (Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550,
     244 A.2d 10, 16 (Pa. 1968) (citing Focht v. Rosenbaum, 176 Pa.
     14, 34 A. 1001 (1876)). The original contract between the
     parties included 50,000 square feet of fine grading, soil
     supplements, and seeding, in exchange for which [C.E. Pontz]
     would receive $3,500.00. The contract between [C.E. Pontz]
     and [Purcell] allowed for changes only if in writing and approved
     in advance of the work done.

             [Purcell]’s owner clearly conceded that [C.E. Pontz] did an
     extensive amount of work beyond the written contract.
     [Purcell]’s project manager, on site almost daily, admitted, “I
     had authorized CE Pontz to perform these additional items.”
     This included 78,000 square feet of erosion control, dumping
     loads and removal of rock, additional seeding, soil prep and
     fertilizer for more than the 50,000 square feet, and costs
     associated with sod and stone removal at the Fitness Building
     entrance and chain link fence area.

           [Purcell]’s project manager further emphasized that he did
     not realize the work “costs would be this much.” Rather than
     accepting the figures presented by [C.E. Pontz], he required

                                    -4-
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     more specific detail in his letter dated September 18, 2007. His
     letter did not indicate that he had received acceptance or
     rejection from the school district or architect, but that he needed
     information in order to pass the costs onto the School District or
     others.

           The October 23, 2007 letter from [C.E. Pontz]’s project
     manager outlines those specific areas as requested by [Purcell]’s
     project manager. Based on this information and [Purcell]’s
     response to [C.E. Pontz]’s letter, Areas 1, 2, 4, and 5 were
     approved and paid by [Purcell] to [C.E. Pontz].

           Issues of Area 3, the softball fields, front slope, and extras
     were denied but purportedly sent on to the School District for
     approval though at a reduced square footage from [C.E. Pontz]’s
     demand. Because the work in Area 3 was clearly done at
     request of [Purcell], for a total of $8093.00, there was an oral
     modification of the requirement to have the change order in
     advance. (Universal Builders, Inc. v. Moon Motor Lodge, Inc.,
     430 Pa. 550, 244 A.2d 10, 16 (Pa. 1968) (citing Focht v.
     Rosenbaum, 176 Pa. 14, 34 A. 1001 (1876)). In addition to the
     work in Area 3, the two ball fields and the sod were completed at
     the request of [Purcell], totaling $1372.00 and $1782.10
     respectively. These costs are clearly owed to [C.E. Pontz] by
     [Purcell]. There is a significant difference in the square footage
     of seeding (164,000 square feet according to [C.E. Pontz] and
     75,940 square feet according to [Purcell]); however, [C.E.
     Pontz] provided no further information regarding the difference.
     Because [C.E. Pontz] was paid for the 50,000 square feet in the
     contract plus an additional 20,340 square feet, the Court will
     grant no further sum for that extra.

Trial Court Opinion, 8/28/2013, at 3-5 (footnotes omitted).

     Purcell filed a timely notice of appeal on September 26, 2013.         On

November 13, 2013, the trial court filed an opinion sur appeal, adopting as

dispositive its August 28, 2013, opinion. The court also stated: “[Purcell]

filed no post-verdict motions.   Any issues not raised in their post-verdict




                                    -5-
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motion are waived.          See Pa.R.C.P. 227.1(b)(2).”    Opinion Sur Appeal,

11/13/2013.

       Purcell did not file any post-verdict motions and on November 20,

2013, this Court entered an order, dismissing the appeal and instructed the

trial court to allow post-trial motions to be filed nunc pro tunc. Purcell filed a

post-trial motion on November 27, 2013, requesting relief based on the

following reasons:

       1. The trial court’s non-jury verdict against [Purcell] upon
       consideration of the testimony and evidence presented at trial
       and in written closing arguments, findings of facts, and
       conclusions of law, as submitted by the parties, is against the
       weight of the evidence.

       2. The trial court’s verdict in favor of [C.E. Pontz] is not
       supported by substantial evidence.

       3. The verdict is, in form and substance, inconsistent with the
       law of the Commonwealth of Pennsylvania.

Purcell’s Motion for Post-Trial Relief Nunc Pro Tunc Pursuant to Pa.R.C.P.

227.1, 11/27/2013, at unnumbered 4-5.            C.E. Pontz filed a response on

December 18, 2013.

       On July 15, 2014, the trial court entered an order, denying Purcell’s

post-trial motion. Purcell filed a notice of appeal on July 28, 2014, 2 and a

____________________________________________


2
   On July 20, 2014, the trial court ordered Purcell to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Purcell
filed a concise statement on August 18, 2014. The trial court issued an
opinion sur appeal pursuant to Pa.R.A.P. 1925(a) on August 28, 2014, again
adopting its August 28, 2013, opinion.



                                           -6-
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praecipe to enter judgment on August 26, 2014, as required by Pennsylvania

Rule of Appellate Procedure 301, because the trial court’s disposition of the

its post-verdict motion did not constitute an appealable order.    That same

day, the trial court entered judgment in favor of C.E. Pontz and against

Purcell, on the decision of the court dated August 28, 2013. Consequently,

we will treat Purcell’s appeal as if it was filed after the entry of judgment,

which is the appealable order.    See Pa.R.A.P. 905(a) (providing that “[a]

notice of appeal filed after the announcement of a determination but before

the entry of an appealable order shall be treated as filed after such entry

and on the day thereof”); McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639,

645 (Pa. Super. 2013) (treating parties’ appeals from the verdict as having

been taken from the final judgment when judgment was entered after the

appeals were filed).

      We begin with our well-settled standard of review:

      Our review in a non-jury case is limited to “whether the findings
      of the trial court are supported by competent evidence and
      whether the trial court committed error in the application of
      law.” We must grant the court’s findings of fact the same weight
      and effect as the verdict of a jury and, accordingly, may disturb
      the non-jury verdict only if the court’s findings are unsupported
      by competent evidence or the court committed legal error that
      affected the outcome of the trial. It is not the role of an
      appellate court to pass on the credibility of witnesses; hence we
      will not substitute our judgment for that of the factfinder. Thus,
      the test we apply is “not whether we would have reached the
      same result on the evidence presented, but rather, after due
      consideration of the evidence which the trial court found
      credible, whether the trial court could have reasonably reached
      its conclusion.”


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Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 665

(Pa. Super. 2014) (internal citations omitted).

      In its first issue, Purcell argues the trial court erred in finding the

parties’ contract was modified orally, thereby “waiving the requirement of

written change orders and consequently binding Purcell to pay for the

additional amounts charged for work performed by [C.E.] Pontz outside the

[s]cope of [w]ork.”    Purcell’s Brief at 10.   Specifically, Purcell states that

while a written agreement can be modified by a subsequent oral agreement,

it must be based upon valid consideration and proven by clear and

convincing evidence.       Id.   However, Purcell avers that where a public

contract is involved and there is a procedure regarding work changes and

extras, “claims for extras will not be allowed unless these provisions have

been strictly followed.”    Id. at 12, citing Scott Township School Dist.

Authority v. Branna Constr. Corp., 185 A.2d 320 (Pa. 1962).               Purcell

contends C.E. Pontz did not submit any written change order requests for

the alleged additional work completed prior to the completion of the project

on August 20, 2007. Id. at 13. Purcell points out that C.E. Pontz submitted

a change order on or about October 23, 2007, and Purcell did amend the

contract based on the requested change order. Id. at 13.

      Purcell’s first issue fails for several reasons.   First, we find Purcell’s

argument is waived to the extent it asserts that because a “public contract”

was involved, a stricter procedure regarding additional work is to be applied


                                      -8-
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pursuant to Scott.       A review of the record, including the trial transcript,

Purcell’s proposed findings of fact, conclusions of law, and closing argument,

as well as its motion for post-trial relief nunc pro tunc, reveals Purcell did not

raise this contention before the trial court. Pennsylvania Rule of Appellate

Procedure 302 mandates: “Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.”           Pa.R.A.P. 302(a).

Accordingly, because Purcell failed to raise this specific claim before the trial

court, we conclude it is waived.

       Second, we find Purcell’s reliance on Scott is misplaced because

Purcell fails to explain how the parties’ written agreement qualifies as a

“public” contract when both entities are private companies.        In Scott, the

contract was between the school district and the contractor for the

construction of an elementary school.            Here, while the work is being

completed at a high school, the contract is between two private companies.

The school district is not a party to the contract at issue.     Moreover, C.E.

Pontz was required to give notice of any additional work to Purcell, not to

the school district.       Therefore, Purcell has not demonstrated Scott is

controlling in the present matter.3

____________________________________________


3
   Furthermore, we note our sister court has strayed away from the stricter
standard as set forth in Scott.        See James Corporation v. North
Allegheny School District, 938 A.2d 474, 486-87 (Pa. Commw. 2007)
(declining to require “strict and narrow application of the [contract’s] notice
requirements” where such application “would be out of tune with the
(Footnote Continued Next Page)


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      Lastly, to the extent Purcell argues generally the trial court erred in

finding the contract was modified orally, we are guided by the following:

      Because contract interpretation is a question of law, this Court is
      not bound by the trial court’s interpretation. Our standard of
      review over questions of law is de novo and to the extent
      necessary, the scope of our review is plenary as the appellate
      court may review the entire record in making its decision.
      However, we are bound by the trial court's credibility
      determinations.

Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,

6 (Pa. Super. 2013), quoting Ruby v. Abington Memorial Hospital, 50

A.3d 128, 132 (Pa. Super. 2012), appeal denied, 68 A.3d 909 (Pa. 2013).

Moreover,

      [a] written contract which is not for the sale of goods may be
      modified orally, even when the written contract provides that
      modifications may only be made in writing.           Universal
      Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244
      A.2d 10 (1968).      An agreement that prohibits non-written
      modification may be modified by subsequent oral agreement if
      the parties’ conduct clearly shows the intent to waive the
      requirement that the amendments be made in writing. Accu-
      Weather v. Prospect Communications, 435 Pa.Super. 93,
      644 A.2d 1251 (1994). An oral contract modifying a prior
      written contract, however, must be proved by clear, precise and
      convincing evidence. Pellegrene v. Luther, 403 Pa. 212, 169
      A.2d 298 (1961).

                       _______________________
(Footnote Continued)

language and purpose of the notice provisions” and where the “government
is quite aware of the operative facts,” and by finding the contractor gave
constructive notice, and the school district suffered no prejudice); E. Coast
Paving & Sealcoating, Inc. v. N. Allegheny Sch. Dist., 111 A.3d 220
(Pa. Commw. 2015) (same). While we are not bound by the decisions of the
Commonwealth Court, these decisions are insightful. See Commonwealth
v. Thomas, 814 A.2d 754, 759 n.2 (Pa. Super. 2002).



                                           - 10 -
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Somerset Community Hospital v. Allan B. Mitchell & Associates, Inc.,

685 A.2d 141, 146 (Pa. Super. 1996).

      Here, the record reveals the following: The original contract between

Purcell and C.E. Pontz included 50,000 square feet of fine grading, soil

supplements, and seeding, in exchange for which C.E. Ponz would receive

$3,500.00. The contract also provided, in relevant part, as follows: “This

Subcontractor shall perform no additional work without written approval

from PURCELL CONSTRUCTION COMPANY. Costs for additional work will not

be paid by PURCELL CONSTRUCTION COMPANY without signed change

orders.”   Subcontract Agreement Between Contractor & Subcontractor,

6/9/2006, at 3.

      At trial, Ober, the project coordinator for C.E. Pontz, testified she

spoke with Kashatus, the project manager for Purcell, regarding the

additional work that needed to be completed due to problems that arose

during the project at issue. Specifically, she stated:

      [Ober]: Okay. I talked to [Kashatus] and we said -- or I said in
      order to get this done in a fairly reasonable time, we could either
      do a change order and – which would take it out another week
      or two, because until we figure out how much it’s gonna cost,
      until we get it to the office, until we get it to their office and they
      get back to us, in the meantime we pull equipment off the site
      and then have to bring it back, I said we could do it that way, I
      said, but you know, you’re looking at another week or so.

                                        …

      [C.E. Pontz’s counsel]: As a result of your conversation with
      [Kashatus], what did you do next?


                                      - 11 -
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       [Ober]: Well, we went ahead and did the seeding with the
       stipulation that it would be a change order at some time in the
       future with the idea of another -- in other words, you have an
       area here that needs to be fixed up and done and at that time I
       said, well, we’ll do it, see what it comes to, we’ll submit a
       change order for that particular area and so on.

       [C.E. Pontz’s counsel]: Is this an uncommon practice?

       [Ober]: Not really. Not when they’re trying to get work done.

N.T., 4/29/2013, at 16-17.4 Ober also indicated that Kashatus would walk

around with her at the site, observing the work being completed, and never

told her that C.E. Pontz should stop doing the work. Id. at 20-22.

       However, William Purcell, the owner of Purcell, testified it was never

brought to his attention that C.E. Pontz was doing additional work, including

erosion removal, that was outside the scope of the contract, but he admitted

that he did see them moving rocks. Id. at 135-137.

       The project was completed in August of 2007, and it included 78,000

square feet of erosion control, dumping loads and removal of rock, additional

seeding, soil prep and fertilizer for more than the 50,000 square feet, and

costs associated with sod and stone removal at the Fitness Building entrance

and chain link fence area.5        An invoice was sent to Purcell on August 24,


____________________________________________


4
   However, Ober also testified that, to her knowledge, she did not know if
anyone from C.E. Pontz ever submitted a written change order request after
certain areas were finished. Id. at 27-28.
5
    See Trial Court Opinion, 8/28/2013, at 3-4.



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2007, indicating that the project cost approximately $49,791.84. Id. at 51-

52.

      Purcell responded with a letter to C.E. Pontz, dated September 18,

2007, in which Kashatus stated, “Please understand I had authorized CE

Pontz to perform these additional items, however, I never realized the costs

would be this much!!!” Exhibit 5, Letter from Kashatus to Kapp, 9/18/2007,

at 2. Although Kashatus did not explicitly reject C.E. Pontz’s assessment of

additional costs, he made the following request, “Please provide all back-up

information requested and forward to our Office as soon as possible. Time is

of the essence because many of the costs for the items you performed are

additional work that needs to be passed on to Twin Valley School District

and/or Others.” Id.

      In an October 23, 2007 letter to Kashatus from Ober, C.E. Pontz

complied with Kashatus’ request, outlining the additional costs by including a

breakdown of cost per area regarding Area #1, Area #2, Area #3, Area #4,

Area #5, Softball Field (first time), Softball Field (second time), Front Slope,

and extras.    See Plaintiff’s Exhibit 3, Letter from Ober to Kashatus,

10/23/2007.

      The following day, Purcell approved certain changes, which amounted

to $13,455.56, for a sum total of $16,955.56.      See Exhibit 4, Letter from

Kashatus to Ober, 10/24/2007.      Areas 1, 2, 4, and 5 were approved and

paid by Purcell.   Id.   Issues concerning Area 3, the softball fields, front


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slope, and extras were denied but purportedly submitted to the school

district for approval. Id.6

       Viewing the evidence in a light most favorable to C.E. Pontz as verdict

winner, there is clear, precise, and convincing evidence that the parties’

conduct clearly demonstrated the intent to waive the requirement that

additional work requests be made in writing. Purcell, via Kashatus’ actions

and words, authorized and permitted C.E. Pontz to perform the additional

work without submitting a written change order before beginning the tasks.

This finding is supported by the fact that Purcell did pay for a portion of the

additional work performed, without ever receiving a written change order. 7

Accordingly, we conclude the court did not err in finding Purcell and C.E.

Pontz orally modified their contract, effectively waiving the no-written




____________________________________________


6
    At trial, William Purcell testified, “I felt that there was some legitimate
additional work that [C.E. Pontz] performed over and above the $16,000
that [the school district] approved.” N.T., 4/29/2013, at 147. When asked
how much he thought C.E. Pontz was due in addition to the $16,000 that
was already paid, he said, “Quite truthfully, I would have gone for all of it
but [the school district] denied all of it. [The school district] said 16,000 is
all that they’re going to approve.” Id. at 148.
7
  Moreover, based on William Purcell’s testimony, it appears Purcell would
have paid for the remainder of the work if the school district had provided
Purcell with the funding.




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modification clause of the parties’ written contract.8 Therefore, Purcell’s first

claim fails.

       In its second issue, Purcell claims the trial court erred in finding C.E.

Pontz did not breach the contract.             Purcell states the parties’ contract

requires that requested damages must be made promptly and consistent

with “the Contract Documents (i.e. the AIA contract between the School and

Purcell).” Purcell’s Brief at 15. Furthermore, Purcell indicates, “The Contract

Documents state the claims must be made within twenty-one (21) days after

occurrence of the event giving rise to such claim or within twenty-one (21)

days after the [claimant] first recognizes the condition giving rise to the

Claim, whichever is later.” Id. Purcell states C.E. Pontz brought its “claim,”

as in a lawsuit, against Purcell two years and nine months after the final

payment was made. Id.

       Additionally, Purcell alleges C.E. Pontz was negligent in not properly

reviewing the plans and other documents provided by Purcell, which resulted

in a significant underestimation between the amount provided by C.E. Pontz

as its bid for the project and the costs that were actually incurred. Id. at


____________________________________________


8
   See Universal Builders, supra (finding an owner cannot refuse to pay
on the ground that there was no written amendment to the parties’ contract
stating that the additional work was authorized under the contract where (1)
he requests the contractor complete the additional work, (2) he promises to
pay for such extra work, and (3) he watches the work being performed
knowing that it is not authorized in writing).



                                          - 15 -
J-S11018-15


16. Moreover, Purcell states C.E. Pontz did not attempt to act in a timely

manner by arguing:

      The record is clear to demonstrate and support [C.E. Pontz]
      breached the Contract by: (i) failing to properly submit a written
      change order request and instead arbitrarily and capriciously
      submitting an invoice for fourteen (14) times the Contract
      amount set forth in the Contract; and (ii) failing to promptly
      make a formal written claim for damages after the final payment
      application was submitted to and paid by Purcell; thereby
      purposefully breaching its duty of good faith and fair dealing in
      its performance of the Contract.

Id. at 17. Purcell concludes C.E. Pontz was in violation of the contract and

should not have been permitted to seek any relief while it “always acted

pursuant to the Contract and is entitled to receive compensation as a result”

of C.E. Pontz’s lawsuit. Id. at 18.

      The provisions of the contract that Purcell relies upon are as follows:

      … the Parties also agree that the Subcontractor shall:

                                        …

      4. Make all claims for extras, for extensions of time and for
      damage for delays or otherwise, promptly to the Contractor
      consistent with the Contract Documents.

                                        …

      10a. Not enter into a separate understanding or agreement of
      any kind the Subcontractor and the Owner and/or its Architect or
      Agents relative to any original or extra work contemplated by
      this Agreement unless the same is first approved in writing by
      the Contractor.

Subcontract Agreement Between Contractor & Subcontractor, 6/9/2006, at

7; see also Purcell’s Brief at 14-15.


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       Like Purcell’s first issue, this breach of contract argument fails for

several reasons. First, Purcell attempts to conflate “claims for extras” with

filing a lawsuit in order to argue that C.E. Pontz did not submit its request

for additional costs in a timely manner. However, the language of Paragraph

4 is clear that “claims for extras” does not equate to filing a complaint.

Moreover, C.E. Pontz did file its claims for extras in a timely manner where

the record demonstrated the project was completed in August of 2007, and

C.E. Pontz sent an invoice to Purcell on August 24, 2007, which included the

additional costs.

       Second, Purcell fails to specifically point out where in the record the

21-day time limit rule is provided for in the Contract Documents. Rather, it

merely references an “AIA contract between the School and Purcell.”

Purcell’s Brief at 15. We note that where a party fails to properly develop its

argument, with proper citation to the record, the party has waived the claim.

See Pa.R.A.P. 2119(e).9         Furthermore, Purcell has failed to explain how a

contract between the school and itself applies to a third-party, C.E. Pontz,

that is not a party to that contract.              Accordingly, Purcell has failed to

demonstrate the court erred in finding C.E. Pontz did not breach the contract



____________________________________________


9
   See also Commonwealth v. LaCava, 666 A.2d 221, 234-235 (Pa. 1995)
(failure to identify where in the record alleged prejudicial comments were
made resulted in waiver).



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with respect to its duty of good faith and fair dealing. Therefore, its second

issue fails.

         In its final argument, Purcell asserts the trial court erred in failing to

award attorney’s fees to Purcell. Purcell’s Brief at 19. Purcell states: “Given

the Lower Court erred in failing to find [C.E. Pontz] breached the Contract, it

is clear that had this error not been committed the Lower Court would have

found the breach; thus, allowing Purcell to receive an award for attorney’s

fees.”     Id.   Moreover, Purcell contends the parties’ contract allows it to

collect legal fees in the event of a breach of the contract terms by C.E.

Pontz. Purcell again avers its prior arguments that C.E. Pontz acted in bad

faith and breached the contract by:

         (i) failing to properly submit a written change order request prior
         to performing any additional work; (ii) and failing to assert a
         claim for damages in a reasonable time and thereby causing
         [Purcell] to have to defend itself in the litigation phase and in
         this appeal and incur attorney’s fees as a result of [C.E. Pontz]’s
         breach of the Contract terms.

Id. at 19-20. Additionally, Purcell states C.E. Pontz acted in bad faith “when

it presented an invoice to Purcell for an amount fourteen (14) times” the

amount of the original contract. Id. at 20.

         “The general rule within this Commonwealth is that each side is

responsible for the payment of its own costs and counsel fees absent bad

faith or vexatious conduct.”      McMullen v. Kutz, 985 A.2d 769, 775 (Pa.

2009), quoting Lucchino v. Commonwealth, 809 A.2d 264, 267 (Pa.

2002). “The American Rule states that a litigant cannot recover counsel fees

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J-S11018-15


from an adverse party unless there is express statutory authorization, a

clear agreement of the parties or some other established exception.”

Mosaica Academy Charter School v. Com. Dept. of Educ., 813 A.2d

813, 822 (Pa. 2002). “When construing agreements involving clear and

unambiguous terms, this Court need only examine the writing itself to give

effect to the parties understanding.” Osial v. Cook, 803 A.2d 209, 213 (Pa.

Super. 2002). See also 42 Pa.C.S. § 2503(9) (“The following participants

shall be entitled to a reasonable counsel fee as part of the taxable costs of

the matter … (9) Any participant who is awarded counsel fees because the

conduct of another party in commencing the matter or otherwise was

arbitrary, vexatious or in bad faith.”).

      Because Purcell’s argument is based on its earlier assertions that C.E.

Pontz breached the contract, we can address this issue in a cursory manner.

As indicated above, the trial court found that because there was no breach

of contract or breach of duty of good faith in bringing the action on C.E.

Pontz’s part, no attorney’s fees should be awarded.     Trial Court Opinion,

8/28/2013, at 3. Based on our disposition with respect to Purcell’s first two

arguments, and our agreement that there was no breach of contract or fair

dealing, Purcell cannot succeed in its claim.   Accordingly, we conclude the

court did not err in failing to award attorney’s fees to Purcell.   Therefore,

Purcell’s final issue is without merit.

      Judgment affirmed.


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J-S11018-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/1/2015




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