J. A30035/17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

OVERSEERS, LLC, A PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
LIMITED LIABILITY COMPANY                   :         PENNSYLVANIA
                                            :
                     v.                     :
                                            :
WALTER ADKINS, III,                         :
                                            :
                          Appellant         :
                                            :
------------------------------------------- :
                                            :
WALTER ADKINS, III,                         :
                                            :
                          Appellant         :
                                            :
                     v.                     :
                                            :       No. 654 WDA 2017
OVERSEERS, LLC, A PENNSYLVANIA              :
LIMITED LIABILITY COMPANY                   :


              Appeal from the Judgment Entered April 17, 2017,
              in the Court of Common Pleas of Allegheny County
                      Civil Division at No. GD-15-018939


BEFORE: BOWES, J., STABILE, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                  FILED APRIL 24, 2018

      Appellant, Walter Adkins, III, appeals from the judgment entered

April 17, 2017 by the Court of Common Pleas of Allegheny County. Judgment

was entered on two separate cases involving these parties that were

consolidated on March 1, 2016. After careful review, we affirm.

      The trial court provided the following recitation of the facts and

procedural history of this case:
J. A30035/17


          On or about March 21, 2013, [appellant’s] property
          located at 476 1st Street in Heidelberg, Pennsylvania
          was severely damaged by fire.                [Appellant]
          maintained property insurance with State Farm and
          Casualty Company (hereinafter “State Farm”) with the
          face amount of said policy as $300,000. Based on
          State Farm’s recommendation, [appellant] originally
          engaged Disaster Restoration Services (“DRS”) to
          rebuild the structure. Fairly early, during salvage and
          demolition on the restoration project, [appellant]
          discharged DRS (on or about May of 2013). DRS
          received $60,000, mostly for demolition work, leaving
          $240,000 for completion of the project out of the
          remaining insurance money.[Footnote 1]

                [Footnote 1] Additional monies were later
                made available to [appellant] by way of a
                rider attached to the State Farm insurance
                policy.

          Based on the recommendation of Jason Adkins, the
          son of [appellant], Joseph Lilley was contacted and
          eventually retained by [appellant]. At said time,
          Joseph Lilley was operating and doing business as
          Overseers, LLC [(“appellee”)].      [Appellant] and
          [appellee] contracted to rebuild the structure for a
          price of $369,542.50.

          Other than an initial payment of $71,289.96, which
          was paid prior to commencement of work by
          [appellee], the contract was silent as to a payment
          schedule as to the remaining installments. Over the
          course of construction, the scope of the project grew
          but was not reflected by way of additional contracts
          or change orders. The parties’ additional agreements
          were never memorialized. At the completion of the
          project, [appellee] claimed a payment deficiency of
          $102,610, while [appellant] complained that he had
          overpaid and was still being billed, paying ‘at least
          $343,418.96.’ [Appellant] asserts that [appellee] was
          paid the $240,000, the original balance from the State
          Farm policy and an extra $77,000 from State Farm, in
          addition to $26,000 paid ‘out of pocket’ by
          [appellant].


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          It is [appellee’s] contention that [appellant] requested
          and authorized extra work and materials in the
          amount of $58,510. [Appellee] further contends that
          the total contract price, with extras, amounts to
          $428,052.

          [Appellee] filed a Mechanics Lien Claim at
          GD 14-012420, to recover any and all deficiencies
          between amounts collected and charged as they
          related to 476 1st Street. [Appellant] filed a Complaint
          in Civil action asserting violations of the Home
          Improvement Consumer Protection Act and Unfair
          Trade Practices and Consumer Protection [Act], as
          well as one count of Breach of Contract at the above
          referenced general docket number.

          ....

          This matter was initiated by a claim filed by [appellee]
          on July 18, 2014. A mechanics lien complaint was
          later filed by [appellee] on November 19, 2014.
          [Appellant] filed Preliminary Objections (hereinafter
          “POs”) to the mechanics lien complaint on
          December 19, 2014. The Honorable Michael McCarthy
          sustained [appellant’s] POs, ordering [appellee] to
          ‘amend its claim as to labor and materials.’ An
          Amended Mechanics Lien Claim was filed on
          February 2, 2015.

          A Complaint in Civil Action was filed by [appellant] on
          October 27, 2015, alleging that [appellee] violated the
          Home Improvement Consumer Protection Act and
          Unfair Trade Practices and Consumer Protection Act
          (Count I), as well as one count of Breach of Contract
          (Count II). By Order dated March 1, 2016, the
          above[-]referenced      general      docket    number
          (GD: 15-018939) was consolidated pursuant to
          Pa.R.C.P.    213(a)     with    GD     14-10240      as
          GD 15-018939.

          [Appellee] filed an answer, new matter and
          counterclaim on March 3, 2016. [Appellee] assert[s]
          that the subject property, which is deemed


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          “commercial”, would not be subject to either the
          Home Improvement Consumer Protection Act
          (hereinafter [“]HICPA”) or the Unfair Trade Practices
          and Consumer Protection Act (hereinafter “UTPCPL”).

          [Appellee] further den[ies] the Acts’ protections and
          application due to the nature of the contract, finding
          it something other than a “home improvement
          contract.”

          [Appellee] raise[s] counterclaims, at Count I, Breach
          of Contract, and at Count II, Unjust Enrichment-
          Quantum Meruit.         [Appellee] now seek[s] a
          deficiency of $102,610.00 in labor and materials
          alleged to have been provided to [appellant] without
          fair compensation.

          [Appellee] further assert[s] that the parties’ original
          contract included a compulsory arbitration clause and
          that this matter should be removed from the Court of
          Common Pleas and reinstated on the Arbitration
          Docket.

          Following     some    pretrial   discovery    motions,
          Judge Folino signed orders dated August 15, 2016, in
          which the Court placed this matter on [the] January
          Trial List, noting that there would be no further
          continuances. Additionally, Judge Folino filed an order
          granting [appellant’s] Motion for Leave to Praecipe for
          a jury trial. [Appellant] filed a demand for [a] jury
          trial on August 19, 2016.

          The parties met for a pre-trial conference in January
          of 2017. When the parties were unable to resolve this
          dispute through settlement, this case was assigned to
          [the Honorable Michael A. Della Vecchia] for trial. The
          parties elected to forego a jury, choosing rather to
          proceed with a non-jury trial.

          On January 11, [2017,] the parties, joined by
          [Judge Della Vecchia] “viewed” the property before
          commencing with testimony of five (5) witnesses over
          the next several days. [Judge Della Vecchia] heard
          and evaluated the live testimony of Joseph Lilley, the


                                   -4-
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            owner and operator of [appellee]; [appellant], the
            owner of the subject property; Robert Gelman, a
            certified real estate appraiser; Jason Adkins, the son
            of the property owner; and John Stivala, a contractor
            and co-owner of JS Construction before rendering
            [his] decisions.

            After evaluating the testimony and evidence and
            giving this matter serious consideration, on
            January 24, 2017, a non-jury verdict was entered at
            GD: 15-018939, in favor of [appellee] and against
            [appellant]. On that same date, a non-jury verdict
            was entered in favor of [appellee] and against
            [appellant] per the verdict entered at GD 14-01240.

            On February 3, 2017, [appellant] filed a Motion for
            Post-Trial Relief [for judgment notwithstanding the
            verdict (“JNOV”)].     Upon receipt of said motion,
            [Judge Della Vecchia] authored an Order of Court
            directing the parties to appear for argument as to
            same on April 20, 2017, with briefs due one[]week
            prior.    The argument was later rescheduled to
            April 19, 2017, by Order dated April 3, 2017.

            Following a thorough review of the parties’ briefs in
            addition to argument held as to post-trial arguments,
            [Judge Della Vecchia] issued an Order on April 21,
            2017, deny[ing] [appellant’s] Motion for Post-Trial
            Relief. Judgment on the Verdict was entered in favor
            of [appellee] and against [appellant] in the amount of
            $71,771.29. (Order, 2/2/17).

            On May 4, 2017, [appellant] filed a Notice of Appeal.
            In response thereto, [Judge Della Vecchia] issued an
            Order dated[] May 16, 2017, directing [appellant],
            through counsel, to file a Concise Statement of
            Matters Complained of on Appeal pursuant to
            Pa.R.A.P. 1925(b). Said statement was timely filed on
            June 2, 2017, placing this matter properly before the
            Superior Court of Pennsylvania.

Trial court opinion, 7/26/17 at 1-5. The trial court filed an opinion pursuant

to Pa.R.A.P. 1925 (a) on July 25, 2017.


                                    -5-
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     Appellant raises the following issues for our review:

           I.     Is [a]ppellant entitled to judgment as a matter
                  of law ([“JNOV”]) based upon the operation of
                  Pennsylvania’s Home Improvement Consumer
                  Protection Act, 73 P.S. § 517.1 et seq., when
                  the proposed contract for home improvement
                  work did not comply with multiple provisions of
                  517.7(a) and when change orders were not
                  reduced to writing or executed by either party?

           II.    Is [a]ppellant entitled to [JNOV] when, even if
                  quantum meruit was applied to this case,
                  [a]ppellant paid to [appellee] one hundred
                  thousand dollars in excess of the value of the
                  benefit conferred upon [a]ppellant, and when
                  [a]ppellant directed [appellee] to stop work
                  starting in August of 2013 when [a]ppellant had
                  all but run out of State Farm insurance
                  proceeds?

           III.   Is [a]ppellant entitled to a new trial when, prior
                  to the commencement of trial, the trial court
                  determined      that     neither     the   Home
                  Improvement Consumer Protection Act nor the
                  Unfair Trade Practices and Consumer Protection
                  Law applied to the instant matter, when the
                  subject property has served as [appellant’s]
                  personal residence and dwelling since 1987?

           IV.    Is [a]ppellant entitled   to a new trial when the
                  trial court permitted      opposing counsel two
                  cross-examinations of     [a]ppellant, but limited
                  [a]ppellant’s counsel      to “two minutes” on
                  re-direct examination.

           V.     Is [a]ppellant entitled to [JNOV] when,
                  assuming arguendo there existed a valid and
                  enforceable contract, [appellee was] the first
                  part[y] to commit a material breach, and when
                  any claim for costs associated with change
                  orders was occasioned by [appellee’s] breach of
                  contract, thereby justifying a suspension of
                  performance on [a]ppellant’s part?


                                     -6-
J. A30035/17



Appellant’s brief at 4-5.

                                      I.

      In his first issue, appellant contends that the trial court erred when it

denied his motion for JNOV and determined that the contract at issue is not

governed by the HICPA and the UTPCPL. The trial court determined that the

property at 476 First Street, Heidelberg, Allegheny County, Pennsylvania

(“the property”), “was constructed and used as something other than a

single-family unit and something other than purely residential.” (Trial court

opinion, 7/26/17 at 11-12.)

      The standard governing JNOV is as follows:

            Our standard of review when considering motions for
            a directed verdict and [JNOV] are identical. We will
            reverse a trial court’s grant or denial of a judgment
            notwithstanding the verdict only when we find an
            abuse of discretion or an error of law that controlled
            the outcome of the case. Further, the standard of
            review for an appellate court is the same as that for a
            trial court.

                  There are two bases upon which a [JNOV]
                  can be entered[:] one, the movant is
                  entitled to judgment as a matter of law
                  and/or two, the evidence is such that no
                  two reasonable minds could disagree that
                  the outcome should have been rendered
                  in favor of the movant. With the first, the
                  court reviews the record and concludes
                  that, even with all factual inferences
                  decided adverse[ly] to the movant, the
                  law nonetheless requires a verdict in his
                  favor. Whereas with the second, the court
                  reviews the evidentiary record and
                  concludes that the evidence was such that


                                     -7-
J. A30035/17


                  a verdict for the movant was beyond
                  peradventure.

            Janis v. AMP, Inc., 856 A.2d 140, 143-44 (Pa.Super.
            2004) (internal quotation marks and citations
            omitted).

Int’l Diamond Importers, Ltd. v. Singularity Clark, L.P., 40 A.3d 1261,

1267 (Pa.Super. 2012).

      In order to determine the applicability of the HICPA, we must look to

the plain language of the statute. Specifically, our inquiry must focus on the

definitions of words and phrases contained within the HICPA.          The HICPA

states that “no home improvement contract shall be valid or enforceable

against an owner unless it . . .” includes the 13 elements enumerated by the

HICPA. 73 P.S. § 517.7(a). The statute defines “home improvement” as work,

“done in connection with land or a portion of the land adjacent to a private

residence or a building or a portion of the building which is used or designed

to be used as a private residence for which the total cash price of all work

agreed upon between the contractor and owner is more than $500[.]” 73 P.S.

§ 517.2 (“Home Improvement”) (emphasis added).          “Private residence” is

defined as either “a single family dwelling; a multifamily dwelling consisting

of not more than two units; [or] a single unit located within any multifamily

dwelling,   including   condominiums    and   cooperative   units.”    73   P.S.

§ 517.2(“Private Residence”).




                                       -8-
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      At the beginning of the trial, the trial court conducted a view of the

property in question. Based, in part, on the view, the trial court noted the

following observations:

            What [the trial court] could not fail to notice was the
            existence of four (4) electric meters, three (3) water
            heaters, two (2) air conditioning units, both an
            apartment and a loft area created out of the first floor,
            in addition to an operating workshop with numerous
            organ pipes. It was obvious and apparent [to the trial
            court] that this property was constructed and used as
            something other than a single-family unit and
            something other than purely residential.

            [The trial court] found significant the facts that both
            the building and occupancy permits were issued for a
            commercial/residential property. [The trial court] was
            further persuaded that [appellant] was not using the
            property strictly as a residential, single family dwelling
            by correspondence [appellant] wrote to the building
            manager of Heidelberg requesting additional property
            addresses to accommodate his business, as well as his
            apartment and newly constructed rental unit.

Trial court opinion, 7/26/17 at 11-12.

      As noted by the trial court, appellant testified that he wrote a letter to

the Heidelberg borough manager, in which he requested two additional

addresses for the property for two apartments, while maintaining his business

address at the property. (Notes of testimony, 1/13/17 at 284.) The trial court

also noted that the property had four electric meters.

      The HICPA does not provide a definition of what constitutes a “unit.”

When a word is undefined by statute, we may determine the “common and

approved meaning of a word” by way of an “examination of its dictionary



                                      -9-
J. A30035/17


definition.”   Chamberlain v. Unemployment Compensation Bd. Of

Review, 114 A.3d 385, 394 (Pa. 2015), citing Commonwealth v. Hart, 28

A.3d 989, 909 (Pa. 2011). Random House defines “unit” as “one of a number

of things, organizations, etc., identical or equivalent in function or form.”

“unit”. Dictionary.com Unabridged. Random House, Inc. 2 Feb. 2018.

<Dictionary.com http://www.dictionary.com/browse/unit>.           Based on this

definition and the trial court’s factual determinations derived from its view of

the property, we find that the property contained three units—appellant’s

business and two apartments.

      Accordingly,    in       conjunction      with   HICPA’s   definitions   of

“home improvement” and “private residence,” we therefore find that the trial

court did not abuse its discretion when it determined that the HICPA does not

control in the instant case.

                                        II.

      Appellant next avers that he paid appellee “a sum of money in excess

of the value of the benefit conferred upon [appellant],” and as a result,

appellee cannot recover on the grounds of quantum meruit. (Appellant’s

brief at 36.) Appellee contends that appellant failed to include any argument

pertaining to quantum meruit in his motion for post-trial relief, thus waiving

the issue. (Appellee’s brief at 28.)

      “Pa.R.C.P. 227.1 requires parties to file post-trial motions in order to

preserve issues for appeal.      If an issue has not been raised in a post-trial



                                       - 10 -
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motion, it is waived for appeal purposes.” Crespo v. Hughes, 167 A.3d 168,

181 (Pa.Super 2017), quoting L.B. Foster Co. v. Lane Enterprises, 710

A.2d 55 (Pa. 1998) (citations omitted).

      In the instant appeal, appellant filed post-trial motions on February 3,

2017. Therein, he raised several issues; however, appellant failed to raise

any issues pertaining to quantum meruit or unjust enrichment. Accordingly,

we find that appellant’s second issue is waived for the purposes of appeal.

                                      III.

      In his third issue on appeal, appellant contends that the trial court

abused its discretion when it determined that the UTPCPL, 73 P.S. § 201-1,

et seq., did not apply because the trial court determined that the property

was a combination of residential, investment, and commercial.            Appellee

argues that the trial court did not abuse its discretion because the UTPCPL

does not apply to investment properties.

      We find that the trial court did not abuse its discretion, and that the

facts of record support the trial court’s determination that the property was a

combination of residential, investment, and commercial.             The UTPCPL

specifically “provides for the right of individuals to bring a private action when

a “person . . . purchases or leases goods or services primarily for personal,

family or household purposes and thereby suffers any ascertainable

loss of money or property, real or personal . . .” 73 P.S. § 201-9.2(a),




                                     - 11 -
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quoted by Lal v. Ameriquest Mortg. Co., 858 A.2d 119, 125 (Pa.Super.

2004) (emphasis in original case law).

      Here, the trial court specifically noted the existence of four electric

meters, three water heaters, and two air conditioning units on the property.

Additionally, the trial court noted that appellant requested that the Borough

of Heidelberg grant him new addresses for the property for use by his business

and an apartment unit. We therefore find that the trial court did not abuse its

discretion when it determined that the UTPCPL does not apply to the property,

as the property was not being used primarily for personal, family, or household

purposes.

                                       IV.

      Appellant next argues that the trial court abused its discretion when it

limited   appellant’s   counsel’s   re-direct   examination   of   appellant   to

“two minutes,” following appellant’s testimony when called as if on cross

during appellee’s case-in-chief.     (Appellant’s brief at 49-50.)      Appellee

contends that this issue is waived because appellant’s counsel failed to place

an objection of record to the trial court’s directive that re-direct examination

be limited to two minutes. (Appellee’s brief at 35-36.)

      Our cases, citing Pennsylvania Supreme Court precedent, have

repeatedly stated that “[i]t is axiomatic that, in order to preserve an issue for

review, litigants must make timely and specific objection[s] during trial and

raise the issue in post-trial motions.”      Miller v. St. Luke’s Univ. Health



                                      - 12 -
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Network, 142 A.3d 884, 889 (Pa.Super. 2016), appeal denied, 164 A.3d

479 (Pa. 2016), quoting Harman ex rel. Harman v. Borah, 756 A.2d 1116,

1124 (Pa. 2000), citing Takes v. Metro. Edison Co., 695 A.2d 397, 400 (Pa.

1997); McMillen v. 84 Lumber, Inc., 649 A.2d 932, 934 (Pa. 1994); Reilly

v. Southeastern Pennsylvania Transp. Auth., 489 A.2d 1291, 1296 (Pa.

1985).

      Here, appellant’s counsel failed to raise the objection during trial, and

accordingly waives the issue on appeal.

                                         V.

      In his fifth and final issue on appeal, appellant avers that because

appellee was the first party to materially breach the contract with appellant,

appellant should be relieved of his obligation to pay the balance awarded to

appellee by the trial court. (Appellant’s brief at 51.) Specifically, appellant

contends that appellee was “obligated to attach to the contract (or otherwise

provide) drawings, specifications, Labor and Industry approved drawings,

notes detailing project cost breakdown and agreed upon assumptions for the

work to be performed by [appellee].” (Id. at 52.) Appellant further argues

that appellee only provided Disaster Restoration Services drawings and

specifications at trial, “which fail to reflect the job [appellee] set out to perform

or the job they actually performed, and which were rejected by the parties at

the outset[.]” (Id.)




                                       - 13 -
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     When considering an allegation of a material breach of contract, we are

governed by the following standard:

           Pennsylvania courts have long recognized the general
           principle of contract law providing that a material
           breach of a contract, which is vital to the existence of
           a contract, relieves the non-breaching party from any
           continuing duty of performance under the contract.
           LJL Transp., Inc. v. Pilot Air Freight Corp., 962
           A.2d 639, 648 (Pa. 2009) (citing Berkowitz v.
           Mayflower Securities, 317 A.2d 584, 586 (Pa.
           1974) (citing 6 Williston, A Treatise on The Law of
           Contracts, § 8[64] (3d. ed. 1962))).

           In LJL Transp., Inc., our Supreme Court found that
           Pilot was justified in terminating its contract with a
           franchisee who improperly diverted business to a
           direct competitor of Pilot that the franchisee owned.
           Even though the franchise agreement expressly gave
           the franchisee a right to cure a breach of the
           agreement, the Supreme Court found the franchisee’s
           self-dealing and disloyalty was an incurable breach
           that frustrated the general purpose of the franchise
           agreement.        Accordingly, the Supreme Court
           emphasized that Pilot should not be expected to
           continue to perform under the agreement where the
           parties’ basic trust had been violated:

                 When there is a breach of contract going
                 directly to the essence of the contract,
                 which is so exceedingly grave as to
                 irreparably damage the trust between the
                 contracting parties, the non-breaching
                 party may terminate the contract without
                 notice,    absent   explicit  contractual
                 provisions to the contrary.

                 Such a breach is so fundamentally
                 destructive,    it  understandably     and
                 inevitably causes the trust which is the
                 bedrock foundation and veritable lifeblood
                 of the parties’ contractual relationship to
                 essentially evaporate. We find our law


                                    - 14 -
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                   does not require a non-breaching party to
                   prolong a contractual relationship under
                   such circumstances.

            LJL Transp., Inc., 962 A.2d at 562 (citation
            omitted).

Umbelina v. Adams, 34 A.3d 151, 159-160 (Pa.Super. 2011), appeal

denied, 47 A.3d 848 (Pa. 2012).

      Here, appellant failed to establish that any material breach of contract

took place. As noted above, appellant avers that appellee failed to provide

specifications for the work to be performed at the property. This contention

is belied by the record. The trial court specifically stated that it “accepted that

prior to any construction, the parties . . . entered into a contract for

$369,542.50 for restoration commensurate with the plans drafted by Disaster

Restoration Services [] and signed by the parties on May 24, 2[01]3. (Trial

court opinion, 7/26/217 at 28, citing notes of testimony, 1/13/17 at 206.)

      Upon our review of the record, we find that appellee’s Exhibit 1, which

appellant acknowledged being the contract that he signed with appellee,

contains numerous drawings, specifications, and project cost breakdowns.

Accordingly, we find that the trial court’s findings are supported by the record

and that it did not abuse its discretion. Appellant’s fifth issue is without merit.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/24/2018




                          - 16 -
