J-A26007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CHRISTOPHER J. PARKER, JR. AND ALI          IN THE SUPERIOR COURT
    J. PARKER,                                            OF
                                                     PENNSYLVANIA
                             Appellees

                        v.

    ANTHONY E. SURMAN, D/B/A A.J.
    SURMAN CONSTRUCTION, INC.,

                             Appellant              No. 307 WDA 2018


                Appeal from the Judgment Entered March 1, 2018
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): AR-17-000826


BEFORE: BENDER, P.J.E., SHOGAN, J., and MURRAY, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED FEBRUARY 05, 2019

        Appellant, Anthony E. Surman, d/b/a A.J. Surman Construction, Inc.,

appeals from the judgment of $2,970.00 entered against him.1 We affirm.

        The trial court summarized the factual background and procedural

history of this case as follows:
        [Appellees] Christopher Parker and Ali Parker purchased a home
        in Mt. Lebanon in July of 2016. Mr. and Mrs. Parker decided to
____________________________________________


1Appellant appealed from the order denying his post-trial motion on January
29, 2018. An order denying post-trial motions is interlocutory and generally
not appealable. See Levitt v. Patrick, 976 A.2d 581, 584 n.2 (Pa. Super.
2009) (stating that appeal properly lies from the entry of judgment, not from
order denying post-trial motions). However, since judgment was entered on
March 1, 2018, we consider the appeal as taken from the entry of judgment.
See Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514-
15 (Pa. Super. 1995) (stating that appellate courts may “regard as done that
which ought to have been done”) (citations omitted). We have amended the
caption accordingly.
J-A26007-18


     have the only full bathroom in the home remodeled, and on
     October 4, 2016[,] Mr. Parker signed a two[-]page proposal from
     A[.]J[.] Surman Construction “together with” American Patriot
     Construction, Inc.[,] to do the work for $7,456. However, the
     proposal Mr. Parker signed is not valid because it lacks a
     contractor registration number and multiple other features
     specified by Pennsylvania’s Home Improvement Consumer
     Protection Act[,]1 … 73 P.S. §[] 517.1 et seq. (“HICPA” hereafter).
        173 P.S. § 517.6, entitled “Proof of registration,” states that
        “A contractor shall include its registration number … on all
        contracts, estimates and proposals with owners in this
        Commonwealth.” 73 P.S. § 517.7(a)(1), entitled “Home
        improvement     contracts,”     states    that   “No     home
        improvement contract shall be valid or enforceable against
        an owner unless it: … contains the home improvement
        contractor registration number of the performing
        contractor.” Other features for a valid contract under 73
        P.S. [§] 517.7 that were missing from the proposal Mr.
        Parker signed include the signature of the contractor or a
        sales person, an address that is not a post office box
        number[,] and approximate start and completion dates.

     [Appellant], who prepared the proposal, accepted a $1,860 check
     from the Parkers after Mr. Parker signed the proposal and
     [Appellant] also accepted their $3,728 check when he began the
     work on Tuesday, October 11, 2016. The scope of work described
     in the proposal called for removal and replacement of the wall tile,
     floor tile, toilet, tub, towel bar, sink, faucets and vanity cabinet as
     well as two coats of paint. After only the first day of work on the
     bathroom, Mr. and Mrs. Parker arrived home from their jobs to
     find holes had been made in the wall of the hallway outside the
     bathroom. Mr. and Mrs. Parker next encountered a problem with
     the work not being completed within the three days promised by
     [Appellant].       Each day, from October 13 until October 22,
     [Appellant] would say that he just needed another hour or two to
     finish. Since the Parkers were not able to use the primary
     bathroom in their home, this was a major inconvenience.

     On Saturday, October 22, after [Appellant] and a helper finished
     working, Mrs. Parker went in the bathroom to investigate it for
     herself. She noticed something seriously wrong with the tile floor
     because it cracked when she walked on it and it clearly was not
     level. The Parkers were losing their patience. However, on
     October 24, [Appellant] refused to do more work unless the

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J-A26007-18


     Parkers paid him additional money. [Appellant] also asserted that
     the price total had increased by $389. With the proposal showing
     no additional money due until completion, Mr. and Mrs. Parker at
     first refused to pay any more money. But they could find no other
     contractor that could come quickly, hence on October 27[,] they
     paid an additional $1,126.50 for [Appellant] to come back and
     finish.2
        2All three checks from the Parkers were payable to “A[.]J[.]
        Surman Construction.”

     [Appellant] promised, both verbally and by electronic mail, that
     all of the bathroom work would be finished no later than Saturday,
     October 29. However, after finishing work on Saturday, October
     29, once again, [Appellant] said an hour or two more would be
     needed to finish. At this point, the Parkers asked [Appellant] to
     return the key to their home and told him he was not permitted
     to do any more work in their home. The holes in the wall of the
     hallway had not been repaired, a marble windowsill in the
     bathroom that [Appellant] broke had not been replaced, there
     were large holes in the bathroom wall from his unsuccessful effort
     to replace the towel bar, the top of the toilet tank was broken, the
     toilet was leaking, the tub was unstable, grout was missing from
     the floor tile[,] and the previously functional light switch was no
     longer operable.

     On October 31, 2016[,] [Appellant] sent the Parkers an invoice
     with another additional charge of $2,484. The Parkers paid
     nothing additional and filed a civil lawsuit for money damages
     against [Appellant] Anthony E. Surman d/b/a AS Surman
     Construction with their local magisterial district judge. [Appellant]
     did not appear for the hearing with the magisterial judge, but
     timely appealed the decision to the compulsory arbitration section
     of this court. On March 2, 2017[,] the Parkers filed their complaint
     in this court against [Appellant] Anthony E. Surman d/b/a A.J.
     Surman Construction, Inc[.]3 … The one hundred forty-eight
     paragraph detailed complaint includes counts alleging [Appellant]
     violated [the] HICPA and Pennsylvania’s Unfair Trade Practices
     and Consumer Protection Law (see 73 P.S. §[] 201-1 et seq.,
     “UTPCPL” hereafter). After the arbitration panel awarded money
     damages to the Parkers, [Appellant] appealed to obtain a new
     non-jury trial, and [this court] conducted the trial on January 12,
     2018. [The court’s] verdict was in favor of the Parkers and against
     [Appellant] in the amount of $2,970.


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          3 The Parkers did not sue the corporate entity, “A.J. Surman
          Construction, Inc[.]” because it is a Virginia [c]orporation
          that was terminated by the [Commonwealth] of Virginia on
          August 31, 2016. The Parkers did not sue “American Patriot
          Construction, Inc.” because they never dealt with anyone
          affiliated with that entity and it did not have a contractor
          registration number required by [the] HICPA.

       [Appellant] then filed a post-trial motion, which [the court]
       denied. [Appellant] then appealed to the Superior Court of
       Pennsylvania and filed a concise statement of matters complained
       of on appeal.[2]

Trial Court Opinion (TCO), 5/1/2018, at 1-4.

       Presently, Appellant raises a single issue for our review:
       Does the [c]omplaint and the trial record provide a factual basis
       for the trial court’s finding that [Appellant] was guilty of
       misrepresentation and deceptive conduct sufficient to impose
       liability against [Appellant], a non-party to a home improvement
       contract?

Appellant’s Brief at 5.3

       We apply the following standard of review:
       Our scope of review of a verdict entered in a nonjury case is
       limited to determining whether its factual findings are supported
____________________________________________


2We note that Appellant timely filed both his notice of appeal and Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal.

3 We observe that Appellant’s brief does not comply with Pa.R.A.P. 2119(a).
See Pa.R.A.P. 2119(a) (“The argument shall be divided into as many parts as
there are questions to be argued; and shall have at the head of each part—in
distinctive type or in type distinctively displayed—the particular point treated
therein, followed by such discussion and citation of authorities as are deemed
pertinent.”); Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 99 n.9 (Pa.
Super. 2016) (determining that the appellant failed to comply with Rule
2119(a) where the appellant’s brief did not “present and develop eight
arguments in support of the eight questions raised”). Although Appellant only
advances one question in his statement of the questions involved, he divides
his argument section into nine sections. We admonish Appellant for his lack
of compliance with Rule 2119(a).

                                           -4-
J-A26007-18


       by the evidence and whether the court made a legal error. The
       prevailing party is entitled to have all its evidence believed and is
       entitled to be given all reasonable inferences from that evidence.
       When the trial court sits as fact finder, the weight to be assigned
       the testimony of the witnesses is within its exclusive province as
       are credibility determinations. Further, the court is free to choose
       to believe all, part, or none of the evidence presented.

Stokes v. Gary Barbera Enterprises, Inc., 783 A.2d 296, 297 (Pa. Super.

2001) (internal citations omitted).

       The trial court found Appellant liable on three separate grounds:

participation theory, violations of the UTPCPL, and violations of the HICPA. In

his brief, Appellant contests all three grounds. However, in the interest of

judicial economy, we focus our review on the trial court’s finding Appellant

liable under the HICPA.4

       The trial court determined that Appellant was liable under the HICPA,

explaining:
       Any HICPA violation is deemed a violation of the UTPCPL. See 73
       P.S. § 517.10.[5] [Appellant], as an individual, is a “contractor”
       under the HICPA because he was undertaking a home
       improvement project. See 73 P.S. § 517.2. Hence, he violated
       the HICPA by not including a registration number on the proposal

____________________________________________


4 We note that Appellant does not argue that the amount of the judgment
would change depending on which of the above-stated grounds form the basis
for his liability. In other words, regardless of the ground relied upon, Appellant
would remain liable for the same amount of money — $2,970.00.

5 “A violation of any of the provisions of this act shall be deemed a violation
of the act of December 17, 1968 (P.L. 1224, No. 387), known as the Unfair
Trade Practices and Consumer Protection Law. Nothing in this act shall
preclude an owner from exercising any right provided under the Unfair Trade
Practices and Consumer Protection Law.” 73 P.S. § 517.10 (footnote omitted).



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J-A26007-18


       (see 73 P.S. [§] 517.6[6]), subjecting him to the private action for
       damages under the UTPCPL brought by Mr. and Mrs. Parker. See
       73 P.S. § 201-9.2.

TCO at 4-5.

       In response, with respect to his liability under the HICPA, Appellant only

argues that:
       The trial court also found [Appellant] liable pursuant to [the
       HICPA] and [the UTPCPL]….

       Underlying the trial court[’s] determination that [Appellant] is
       liable under [the] HICPA and the UTPCPL is its conclusion that
       [Appellant] is a ‘Contractor’ as that term is defined under [the]
       HICPA…. A contractor under the HICPA is defined as follows:

          “Contractor.” Any person who owns and operates a home
          improvement business or who undertakes, offers to
          undertake or agrees to perform any home improvement.
          The term includes a subcontractor or independent
          contractor who has contracted with a home improvement
          retailer, regardless of the retailer’s net worth, to provide
          home improvement services to retailer’s customers. The
          term does not include any of the following:

              (1) A person for whom the total cash value of all of
              that person’s home improvements is less than $5,000
              during the previous taxable year.

              (2) A home improvement retailer having a net worth
              of more than $50,000,000 or an employee of that
              retailer that does not perform home improvements.

          75[]P.S. [§] 517.2.

       The trial court held that, “[Appellant], as an individual, is a
       ‘contractor’ under HICPA because he was undertaking a home

____________________________________________


6 “A contractor shall include its registration number in all advertisements
distributed within this Commonwealth and on all contracts, estimates and
proposals with owners in this Commonwealth. This section shall apply to all
advertisements, contracts, estimates and proposals created by a contractor
after the effective date of this act.” 73 P.S. § 517.6.

                                           -6-
J-A26007-18


      improvement project.” The facts do not support the trial court’s
      finding.

      [The Parkers] entered into a contract with A[.]J[.] Surman
      Construction together with American Patriot Construction, Inc.
      [Appellant] did not sign the contract.        In the contract,
      [Appellant’s] title is listed as “Business Development and
      Estimating.” [The Parkers] payed for work performed by checks
      payable to A[.]J[.] Surman Construction. The totality of this
      evidence supports the conclusion that the contractor in this case
      was A[.]J[.] Surman Construction together with American Patriot
      Construction, Inc. The evidence does not support the trial court’s
      conclusion that … [Appellant] individually was undertaking the
      home improvement contract. Therefore, the judgment against
      [Appellant] should be reversed.

Appellant’s Brief at 22-24 (internal citations omitted).

      We   disagree   with   Appellant    that   the   totality   of   the   evidence

demonstrates that the contractor in this case was not him but, instead, A.J.

Surman Construction together with American Patriot Construction, Inc. We

reiterate that the trial court found that A.J. Surman Construction, Inc. “is a

Virginia Corporation that was terminated by the [Commonwealth] of Virginia

on August 31, 2016[,]” which was five weeks before Appellant met with the

Parkers, signed the proposal, and began work. See TCO at 3 n.3; Parkers’

Brief at 17 (citation omitted).   Thus, A.J. Surman Construction, Inc., is a

nonexistent entity. Furthermore, the trial court observed that “[t]he Parkers

did not sue ‘American Patriot Construction, Inc.’ because they never dealt with

anyone affiliated with that entity and it did not have a contractor registration

number required by [the] HICPA.”         TCO at 3 n.3.     Moreover, the Parkers

persuasively assert that “[a]t no point in the proceedings … did [Appellant]

introduce any evidence showing a relationship, let alone a legally enforceable


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J-A26007-18



one, that existed between [Appellant] and American Patriot.” Parkers’ Brief

at 13.7 They also cite a plethora of evidence supporting that they “never dealt

with anyone on behalf of American Patriot and only with [Appellant] as [A.J.]

Surman Construction….” Id. at 18; see also id. at 18-21 (explaining, inter

alia, that the original solicitation through Angie’s List provided that the

contracting company was A.J. Surman Construction and no reference was

made to American Patriot, they wrote checks to A.J. Surman Construction,

and Appellant personally signed the proposal with the title of ‘Business

Development & Estimating’ of A.J. Surman Construction).8 Thus, we reject

____________________________________________


7 We further note that, in Appellant’s earlier motion for summary judgment,
he never mentioned American Patriot. Instead, he argued that “any claim
that [the Parkers] have based upon the quality of the workmanship for the
bathroom remodel job should be taken up with A.J. Surman Construction,
Inc.” Appellant’s Motion for Summary Judgment, 12/5/2017, at 2. Appellant
also reiterated the same argument in his pretrial statement. See Appellant’s
Pretrial Statement, 12/11/2017, at 1 (“[The Parkers] entered into a contract
with A.J. Surman Construction, Inc.[,] for a bathroom remodeling job at their
home…. A.J. Surman Construction, Inc. is a Virginia Corporation and any
claim that [the Parkers] have based upon the quality of workmanship for the
bathroom remodel job should be taken up with A.J. Surman Construction,
Inc.”).

8 We also observe that Appellant did not maintain a contractor’s license. See
Parkers’ Brief at 30-31 (citing N.T. Trial, 1/12/2018, at 94). Yet, the trial
court found that Appellant “individually did the work[,]” and held himself out
as an experienced contractor. See TCO at 4; see also N.T. Trial at 17 (Mrs.
Parker: “So the whole time that this project was ongoing, it was only
[Appellant] that we were dealing with. He brought a worker with him that
was identified as Larry … in his discovery responses but he said he didn’t know
his last name or if he was a contractor in his discovery. We were dealing with
[Appellant], over and over again. He was the one who wrote the contract. He
was the one telling us about the progress every day. We would physically see



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J-A26007-18



Appellant’s argument that the contractor was A.J. Surman Construction, Inc.,

together with American Patriot Construction, Inc., in light of the evidence

adduced at trial and the arguments advanced by the parties. Accordingly,

Appellant has not convinced us that the trial court erred in finding him

individually liable under the HICPA, and therefore we affirm the trial court’s

judgment.9

       Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2019


____________________________________________


him working in the house whenever we were home. He was the one to
purportedly get the materials….”). The Parkers also assert that Appellant
“failed to produce at trial or otherwise any employment agreement, W-2,
paystub or any other document evidencing his purported employment with
[A.J.] Surman Construction together with American Patriot.” Parkers’ Brief at
22.

9 It is unclear whether Appellant argues that the “gist of the action” doctrine
bars the Parkers from recovering under the HICPA. To the extent he does
make this argument, we deem it waived. Appellant does not show where he
raised this issue before the trial court, nor does our review of the record
indicate that he did. See Pa.R.A.P. 302 (“Issues not raised in the lower court
are waived and cannot be raised for the first time on appeal.”). Similarly, to
the extent Appellant argues that he does not qualify as a contractor under the
HICPA, this argument is waived because he did not advance it before the trial
court. See id.

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