J-A25021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

THE CLASSIC LIGHTING EMPORIUM,                    IN THE SUPERIOR COURT OF
INC.                                                    PENNSYLVANIA

                            Appellant

                       v.

ERIE INSURANCE EXCHANGE

                            Appellee                  No. 3158 EDA 2014


              Appeal from the Judgment Entered October 13, 2014
              In the Court of Common Pleas of Philadelphia County
                Civil Division at No(s): June Term, 2013 No. 3908

BEFORE: DONOHUE, J., MUNDY, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                         FILED NOVEMBER 17, 2015

        Appellant, The Classic Lighting Emporium, Inc. (Classic Lighting),

appeals from the October 13, 2014 judgment entered in its favor and

against Appellee, Erie Insurance Exchange (Erie Insurance), for $14,239.29.

After careful review, we affirm.

        We summarize the facts and procedural background of this case from

the certified record and the trial court opinion as follows.   Classic Lighting

sells various antiques, including a large selection of lighting fixtures.   To

protect its inventory, Classic Lighting carried a $600,000.00 insurance policy

with Erie Insurance. The policy, however, did not cover the building.


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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      On July 10, 2012, Classic Lighting’s inventory was damaged by smoke

and soot from a warehouse fire four blocks away.              As a result, Classic

Lighting’s owner, Thomas Fasone, retained a public adjuster, Citizens Public

Adjusters (Citizens), to represent him in a claim for property damage. On

July 17, 2012, Mark Costello of Citizens, acting on behalf of Classic Lighting,

reported the smoke and soot damage to Erie Insurance.

      On July 25, 2012, Erie Insurance sent a claims adjuster to Classic

Lighting to investigate the claim. Due to the amount of the loss, however,

the   claim   was   reassigned   to    a    second    adjuster,   James     Powers.

Subsequently, on August 2, 2012, Powers inspected the loss. Powers then

retained Mellon Certified Restoration (Mellon) to prepare an estimate for the

cost of cleaning Classic Lighting’s inventory. Mellon’s estimate, prepared by

David Park, indicated it would cost $71,196.46 to clean the entire inventory.

On the other hand, Classic Lighting’s adjuster, Costello, estimated that it

would cost $524,498.58 to restore the building and the inventory.

      Based on the Mellon estimate, Erie Insurance issued a check for

$56,457.17 to Classic Lighting and Citizens. That amount represented the

$71,196.46    estimate   minus   the   $500.00       policy   deductible   and   the

$14,239.29 “recoverable holdback.”         Under the policy, the entirety of the

recoverable holdback would be remitted to Classic Lighting upon proof of the

completion of the repairs. Powers followed up with Costello to check on the

status of the repairs in anticipation of releasing the recoverable holdback.


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However, on April 19, 2013, Costello advised Powers that Classic Lighting

did not intend to seek the recoverable holdback and that Powers could close

the file.

       On July 31, 2013, Classic Lighting filed a one-count complaint against

Erie Insurance for breach of contract in the Philadelphia County Court of

Common Pleas. The complaint sought damages based on Costello’s estimate

of $524,498.58.    Thereafter, on August 27, 2013, at the request of Jack

Winters, the new Citizens public adjuster assigned to Classic Lighting,

Powers re-inspected the loss, which resulted in Erie Insurance submitting a

request to Park of Mellon to issue a supplemental estimate.      Accordingly,

Park issued a supplemental estimate on behalf of Mellon for $104,093.26;

Winters also issued a revised estimate for $295,070.19.

       On October 7, 2013, Fasone signed a sworn and notarized proof of loss

certifying that the whole loss was $104,093.26.           Consequently, Erie

Insurance issued a supplemental payment of $32,896.80 to Classic Lighting,

which was the difference between the first Mellon estimate of $71,196.46

and the supplemental estimate of $104,093.26.         Thus, Classic Lighting

received a total of $89,353.97 from Erie Insurance for the loss.         Erie

Insurance retained the $14,239.29 recoverable holdback because Classic

Lighting had not submitted proof of any repairs.

       Despite these payments, this case proceeded to a bench trial on July

28, 2014. At the trial, Classic Lighting presented the testimony of Fasone.


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Erie Insurance presented Powers and Park; Park was qualified as an expert

regarding cleaning soot damaged items.             The trial court “accepted the

opinions from Mr. Park as credible and accurate and f[ound] that they prove

that the restoration of [Classic Lighting’s] inventory could be completed for

the amount of the Mellon [supplemental] estimate[, $104,093.26].”           Trial

Court Opinion, 3/26/15, at 6.             Further, the trial court found Fasone’s

testimony “was not credible because he was unable to provide any evidence

in support of [Classic Lighting’s] claim for additional insurance proceeds over

and above the amount paid[, $89,353.97,] and the $14,239.29 holdback.”

Id. at 7. Because Erie Insurance had not tendered the $14,239.29 holdback

to Classic Lighting, the trial court entered a verdict on August 12, 2014 in

favor of Classic Lighting for that amount. Id. at 13.

       On August 21, 2014, Classic Lighting filed a timely post-trial motion,

which the trial court denied on September 18, 2014. On October 13, 2014,

Erie Insurance filed a praecipe to enter judgment in favor of Classic Lighting

and against Erie Insurance for $14,239.29.          On October 20, 2014, Classic

Lighting filed its timely notice of appeal.1

       On appeal, Classic Lighting presents the following six issues for our

review.


____________________________________________


1
  The trial court and Classic Lighting have complied with Pennsylvania Rule
of Appellate Procedure 1925.



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            1. Whether the trial court committed errors of law
               and fact and abused its discretion in finding in
               favor of Classic Lighting for only $14,239.29 when
               evidence established that the measure of
               damages is the cost charged by Classic Lighting to
               clean and restore all smoke damaged light
               fixtures at its property totaling $346,500.00[?]

            2. Whether the trial [c]ourt erred in its finding of
               damages when Erie Insurance [] admitted
               through its representative that it owes damages
               equal to the cost estimated by Classic Lighting to
               clean the fixtures, $346,500.00[?]

            3. Whether the trial court erred in its finding that
               Classic Lighting is not entitled to damages based
               on the estimate of Mr. Fasone, the owner of
               Classic Lighting, which is contrary to the evidence
               presented at trial, namely that Classic Lighting’s
               estimates for time and value of work were
               unrebutted[?]

            4. Whether the [t]rial [c]ourt committed errors of
               law and fact and abused its discretion in denying
               [Classic Lighting’s] [m]otion for [p]ost-[t]rial
               [r]elief where evidence established that the
               measure of damages is the cost charged by
               Classic Lighting [] to clean and restore all smoke
               damaged light fixtures at [Classic Lighting’s]
               property, an[] amount totaling $346,500.00[?]

            5. Whether the trial court erred in denying [Classic
               Lighting’s] [m]otion for [p]ost-[t]rial [r]elief when
               [Erie    Insurance]      admitted     through      its
               representative that [Erie Insurance] owes in
               damages the total cost estimated by [Classic
               Lighting] to clean the fixtures[?]

            6. Whether the trial court’s denial of [Classic
               Lighting’s] [m]otion for [p]ost-[t]rial [r]elief
               constitutes an abuse of discretion, a mistake of
               fact and an error of law[?]

Classic Lighting’s Brief at 2-3.

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      We address Classic Lighting’s six issues together because they all

contest how the trial court weighed the evidence to arrive at the amount of

damages.    We begin by noting our standard of review for appeals from

bench trial verdicts.

                         Our appellate role in cases arising from
                  non-jury trial verdicts is to determine whether
                  the findings of the trial court are supported by
                  competent evidence and whether the trial
                  court committed error in any application of the
                  law. The findings of fact of the trial judge must
                  be given the same weight and effect on appeal
                  as the verdict of a jury. We consider the
                  evidence in a light most favorable to the
                  verdict winner. We will reverse the trial court
                  only if its findings of fact are not supported by
                  competent evidence in the record or if its
                  findings are premised on an error of law.
                  However, [where] the issue ... concerns a
                  question of law, our scope of review is plenary.

                        The trial court’s conclusions of law on
                  appeal originating from a non-jury trial are not
                  binding on an appellate court because it is the
                  appellate court’s duty to determine if the trial
                  court correctly applied the law to the facts of
                  the case.

                                       …

                   Ordinarily, “[i]t is well established that the
            credibility of witnesses is an issue to be determined
            by the trier of fact. On appeal this Court will not
            revisit the trial court’s determinations ... regarding
            the credibility of the parties. Thus, [an] argument,
            which would require this Court to revisit and
            essentially reverse the [trial court] on his credibility
            determinations, provides no grounds for relief.”
            Woods v. Cicierski, 937 A.2d 1103, 1105 (Pa.
            Super. 2007) (internal citations omitted).


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Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664-

665, 667 (Pa. Super. 2014) (alterations in original; citation omitted).

      Specifically, Classic Lighting contends that the “undisputed” testimony

of Fasone established that it would cost Classic Lighting $346,500.00 to

clean all of the soot and smoke damaged lighting fixtures. Classic Lighting’s

Brief at 16-17. The trial court, however, unequivocally determined Fasone’s

testimony was not credible, explaining as follows.

                   [Classic Lighting] failed to present credible
            evidence in favor of its contention that it would
            expend an additional $346,500.00 when cleaning its
            soot and smoke damaged inventory of lighting
            fixtures.    [Classic Lighting] presented no expert
            testimony in support of its claim.        It sought to
            establish its right to relief by presenting the
            testimony of owner [] Fasone; however, he was
            completely unable to testify to any facts in support
            of [Classic Lighting’s] contention that it was entitled
            to a $346,500.00 judgment.          He testified that
            [Classic Lighting] did not employ the service of a
            professional remediation company that specialized in
            mitigation of smoke and soot damage. Instead,
            [Classic Lighting] chose to have its own employees
            clean each lighting fixture by hand prior to the sale
            of the fixture. According to the testimony of Mr.
            Fasone, prior to the fire, [Classic Lighting] had an
            established policy of cleaning each lighting fixture at
            the time of sale prior to delivering the fixture to a
            purchasing customer. He also testified that [Classic
            Lighting’s] employees were constantly cleaning the
            inventory of lighting fixtures. Mr. Fasone testified
            that each lighting fixture needed several hours of
            additional cleaning, at the point of sale, after being
            damaged by soot and smoke.

                   Mr. Fasone estimated that [Classic Lighting]
            had around 1,900 soot and smoke damaged fixtures
            in its inventory immediately after the fire. Of those

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          damaged fixtures, he estimated that [Classic
          Lighting] had cleaned and sold around 200 fixtures
          since the fire, which left an estimated inventory of
          1,700 damaged lighting fixtures.         Mr. Fasone
          provided no receipts, records or other documentation
          to establish the additional labor or expense incurred
          by [Classic Lighting] in cleaning the damaged
          inventory, and he failed to provide concrete evidence
          as to the expense [Classic Lighting] would have
          incurred in remediating its remaining inventory. Mr.
          Fasone failed to establish that [Classic Lighting]
          would even sell its remaining inventory. The only
          thing that Mr. Fasone could establish was that each
          lighting fixture was unique, and that each individual
          fixture would take a varying amount of time to clean.
          In fact, he was completely unable to testify to a
          specific monetary amount necessary to remediate
          the smoke and soot damage.             The following
          exchange took place on the record:

               THE COURT: You didn’t answer my question. I
               said how is the [trial] [c]ourt to analyze your
               claim when you can’t even determine before
               me how much it’s going to cost you for each
               one? Some are like this, some are like that.

               [FASONE]: It’s hard for me to give you a price.

               THE COURT: I said what is the [trial] [c]ourt
               supposed to do with that? How am I supposed
               to evaluate that?

               [FASONE]: I see what you’re saying. I mean,
               if you wanted a price for overall, for all the
               cleaning of one thing.

               THE COURT: I want you to give me something
               that I can hang my hat on other than [“]just
               give me money.[”] Again, as I said before, if
               you had paid somebody to do it … you could
               hand us the receipt and said I paid everybody
               to do this … I probably would give you that
               because you paid somebody, but you haven’t
               done that. Instead what you have done is said

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                  [“]as I sell them, I’m going to clean them.[”]
                  How much is it going to cost you? Well, it
                  depends. I want to be fair to you, but what’s
                  fair?

                  [FASONE]: Exactly what I told you.          Small
                  runs, simple runs is 20 bucks an hour.

                  THE COURT: Well, wouldn’t it help if you would
                  tell me how many simple ones there are and
                  how many complicated ones there are? How
                  many really complicated one[s] there are?
                  Again, if there was no damage to them, you
                  would have given them at least a one-hour
                  cleaning anyway. But if they are damaged,
                  you’re going to add another three hours and
                  that’s going to cost for this so much, for this so
                  much, for this so much. Then you can give me
                  a number. But instead of just telling me – so
                  what am I supposed to do with that?

                  [FASONE]: It’s hard for me to describe how
                  much a piece.

                                       …

            Th[e] [trial] [c]ourt was simply unwilling to award
            damages in the amount of $346,500.00 in an
            evidentiary vacuum when it was [Classic Lighting’s]
            burden to establish a right to relief.

Trial Court Opinion, 3/26/15, at 11-13.

      After carefully reviewing the certified record, we conclude that the trial

court’s findings are supported by the evidence in the record. The testimony

of Park, Erie Insurance’s expert, established that the total cost to restore the




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damaged fixtures was $104,093.26.2 The trial court explicitly found Park’s

testimony credible.      Further, the trial court found Fasone’s testimony was

not credible.     Classic Lighting’s argument on appeal would require us to

revisit and reverse these credibility determinations, and, as such, it provides

no grounds for relief. See Stephan, supra.

       For the foregoing reasons, we conclude all of Classic Lighting’s issues

are meritless.      Therefore, we affirm the trial court’s October 13, 2014

judgment.

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/17/2015

____________________________________________


2
   Moreover, we note that in its brief, Classic Lighting misconstrues the
testimony of Fasone. Fasone never testified to a specific damage amount at
trial. Instead, Fasone estimated that the simpler lighting fixtures would cost
$20.00 per hour to clean while the more complex ones would cost $60.00
per hour. Fasone did not specify how many of the 1,900 damaged items
required simple cleaning, and how many required complex cleaning. In its
brief, however, Classic Lighting acknowledges its calculation of $346,500.00
in damages is based on “1925 items [] multiplied by an average of three
hours of extra cleaning that each item requires at a rate of $60.00 per
hour[.]”    Classic Lighting’s Brief at 7.    Therefore, Classic Lighting’s
calculation of damages is not supported by Fasone’s testimony or any other
evidence of record.



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