J.S04035/14

                               2014 PA Super 196


PRIETO CORPORATION,                          :     IN THE SUPERIOR COURT OF
                                             :          PENNSYLVANIA
                          Appellee           :
                                             :
                    v.                       :
                                             :
                                             :
GAMBONE CONSTRUCTION CO.,                    :
                                             :
                          Appellant          :     No. 1538 EDA 2013


                  Appeal from the Judgment Dated May 8, 2013
              In the Court of Common Pleas of Montgomery County
                        Civil Division No(s).: 2009-22021

BEFORE: BENDER, P.J., SHOGAN, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                        FILED SEPTEMBER 10, 2014

        Appellant, Gambone Construction Co., appeals from the judgment

entered in the Montgomery County Court of Common Pleas in favor of

Appellee, Prieto Corporation.        Appellant claims the trial court improperly

construed the Contractor and Subcontractor Payment Act1

challenges the sufficiency of evidence for an oral contract between the

pa

property, each of which falls within the scope of CASPA, and the evidence

was sufficient to establish an oral contract between the parties. We affirm.


*
    Former Justice specially assigned to the Superior Court.
1
    73 P.S. §§ 501-516.
J. S04035/14

      We state the facts as set forth by the trial court:

            [Appellee] is in the business of constructing concrete
         curbs and Belgian block curbs. [Appellant] is a general
         contractor in the business of developing residential and
         commercial properties.        [Appellee] worked as a
         subcontractor for [Appellant] from 1999 through 2007 on
         198 jobs and was paid $1,917,260.79 by [Appellant].

             The custom and practice of contract formation and
         performance between [Appellant] and [Appellee] from
         1999 to 2007 is as follows. [Appellant] would customarily
         initiate contact with [Appellee] and request a bid for
         [Appellee] to construct curbs for its construction projects.
         [Appellee] would customarily then fax a proposal to

         send a purchase order to [Appellee], and [Appellee] would

         order. [Appellee] began the work after authorization by
         [Appellant]. [Appellee] would then send an invoice to
         [Appellant] after the work was completed. [Appellant]
         would pay the invoice usually [within sixty to ninety days].

            [Appellee] initiated suit against [Appellant] due to non-
         payment of four outstanding invoices relating to . . . four
         projects.

Trial Ct. Op., 7/29/13, at 1 (citations and some capitalization omitted).2


2
  The certified record did not include the trial transcript. We have held that
failure to include the trial transcript in the certified record typically precludes
appellate review. Floyd v. Phila. Elec. Co., 429 Pa. Super. 460, 463, 632
A.2d 1314, 1315 (1993). More recently, however, our Supreme Court held

could consider that document if it was in the Reproduced Record, even

Pa.R.A.P. 1921 note (citing Commonwealth v. Brown, 617 Pa. 107, 117
n.4, 52 A.3d 1139, 1145 n.4 (2012)). In this case, because a copy of the
trial transcript is part of the reproduced record and neither party has
                                                       their merits. See
id.




                                       -2-
J. S04035/14




respect to the four projects.     See id. at 2-5.   For each project, Appellee

faxed a job proposal to Appellant and Appellant responded with a written

purchase order.       See id.    Appellee subsequently performed the work

described in the purchase order and sent Appellant a written invoice. See

id. Appellant did not pay Appellee in full for the work performed. See id.

        Appellee, as noted above, constructed curbs.     The process involved



                                                               -71a. Appellee

                                                            Id. at 271a-72a.

Sometimes, instead of pouring concrete, Appellee constructed curbs using
                        3



        Appellee sued Appellant, raising claims of breach of contract, unjust

enrichment, and violation of CASPA.4       A bench trial ensued, and the court

rendered a verdict in favor of Appellee on February 19, 2013. Both parties

filed post-trial motions, with Appellant moving for judgment notwithstanding

the verdict only.      The court denied the post-trial motions and entered




3




4
    A private right of action exists under CASPA.



                                       -3-
J. S04035/14

judgment on May 8, 2013.5     Appellant filed a timely notice of appeal and

court-ordered Pa.R.A.P. 1925(b) statement.

     Appellant raises the following issues:

        Did the trial court commit error by improperly extending
        the clear provisions of [CASPA] to include the work
        provided by [Appellee], which, according to the testimony
        of its princi

        of a build or structure. (2) The erection, alteration,
        demolition, excavation, clearing, grading or filling o[f] real
        property. (3) Landscaping, including the planting of trees
        and shrubbery, and construction driveways and private


        Did the trial court commit error in finding that [CASPA]

        was insufficient to establish a valid contract between the
        parties as required under 73 P.S.C.A. [sic] §502?

        Did the trial court commit error in finding that there was
        an oral contract between [Appellee] and [Appellant]
        because the testimony proffered by [Appellee] did not
        reference a single specific conversation with any person or
        representative at [Appellant], did not provide specific
        terms and conditions of contract or agreement and did not
        provide sufficient specificity so as to form an enforceable
        oral contract[,] which is subject to a heightened standard?

                    -8.

     For its first issue, Appellant argues the trial court misconstrued CASPA

to encompass the work at issue.        Specifically, Appellant maintains the

                                                            oadways on real


5
 The order was signed and served on the parties on April 30, 2013, but was
not docketed until May 8, 2013.




                                    -4-
J. S04035/14




apply. Id. at 7 (quoting 73 P.S. § 502). We hold Appellant is due no relief.

                          -jury verdict, the appellate court must determine

whether the findings of the trial court are supported by the evidence or



Refuse Mgmt. Sys., Inc. v. Consol. Recycling & Transfer Sys., Inc.,

448 Pa. Super. 402, 412, 671 A.2d 1140, 1145 (1996) (internal quotation



grant or denial of [judgment notwithstanding the verdict] only when the

                                                                      Braun v.

Wal-Mart Stores, Inc., 24 A.3d 875, 890 (Pa. Super. 2011) (per curiam)

(citation omitted), appeal granted in part, 616 Pa. 354, 47 A.3d 1174

(2012). We can also affirm on any basis. Donnelly v. Bauer, 553 Pa. 596,

611, 720 A.2d 447, 454 (1998).

     Our standard of review for statutory interpretation is de novo. Braun,

24 A.3d at 953.

        The object of interpretation and construction of all statutes
        is to ascertain and effectuate the intention of the General
        Assembly. When the words of a statute are clear and free
        from all ambiguity, their plain language is generally the
        best indication of legislative intent. A reviewing court
        should resort to other considerations to determine
        legislative intent only when the words of the statute are
        not explicit. In ascertaining legislative intent, this Court is
        guided by, among other things, the primary purpose of the
        statute,    and    the   consequences      of   a    particular
        interpretation.



                                     -5-
J. S04035/14

         Moreover, it is axiomatic that in determining legislative
         intent, all sections of a statute must be read together and
         in conjunction with each other, and construed with
         reference to the entire statute.

Id.

definition, statutes are presumed to employ words in their popular and plain

everyday sens

Nippes v. Lucas, 815 A.2d 648, 650 (Pa. Super. 2003) (citations omitted).

      By way of background,

         CASPA [is] a comprehensive statute enacted in 1994 to
         cure abuses within the building industry involving
         payments due from owners to contractors, contractors to
         subcontractors,     and     subcontractors     to     other
         subcontractors. The underlying purpose of CASPA is to
         protect contractors and subcontractors and to encourage
         fair dealing among parties to a construction contract. The
         statute provides rules and deadlines to ensure prompt
         payments, to discourage unreasonable withholding of
         payments, and to address the matter of progress
         payments and retainages. Under circumstances prescribed
         in the statute, interest, penalty, attorney fees and
         litigation expenses may be imposed on an owner,
         contractor or subcontractor who fails to make payment to
         a contractor or subcontractor in compliance with the
         statute.

Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497, 500-01 (Pa.

Super. 2009) (alterations, citation, and punctuation omitted).




                                                         515.    The following

statutory definitions also apply:



                                    -6-
J. S04035/14

                          Real estate that is improved, including
        lands, leaseholds, tenements and hereditaments, and
        improvements placed thereon.

                      To design, effect, alter, provide professional
        or skilled services, repair or demolish any improvement
        upon, connected with, or on or beneath the surface of any
        real property, to excavate, clear, grade, fill or landscape
        any real property, to construct driveways and private
        roadways, to furnish materials, including trees and
        shrubbery for any of these purposes, or to perform any
        labor upon improvements.



          (1) All or any part of a building or structure.

           (2) The erection, alteration, demolition, excavation,
        clearing, grading or filling of real property.

           (3) Landscaping, including the planting of trees and
        shrubbery, and constructing driveways and private
        roadways on real property.



                                      uction, production, or piece of work




     In Hubbard v. Com., Dept. of Transp., 660 A.2d 201 (Pa. Commw.

1995),6 the Commonwealth Court define




6



NASDAQ OMX PHLX, Inc. v. PennMont Secs., 52 A.3d 296, 308 n.7 (Pa.
Super. 2012) (citation omitted).




                                    -7-
J. S04035/14

Commonwealth was responsible for injuries incurred when the victim fell on

                           Id. at 202.

           Because . . . a curb . . . was [not] defined by the
        General Assembly when it did so, we must resort to the
        rules of statutory construction to determine [its]
        meaning[ ]. In this regard, words and phrases are to be
        construed according to their common and approved usage.
        1 Pa.C.S. § 1903(a). Furthermore, if a word has acquired
        a peculiar and appropriate meaning, then it shall be
        interpreted in accordance with that meaning. Id.

            A curb, as that term is commonly used, is a raised
        edging serving as a border between that portion of the
        right-of-way for which a public body has assumed
        maintenance responsibilities and that portion still retained
        by the abutting property owner. Public bodies normally
        assume responsibility for property within the curb lines,
        i.e., the gutters and the roadway or cartway. On the other
        hand, the abutting property owner retains responsibility for
        the conditions outside the curb lines, i.e., the sidewalk, the
        tree planting strip, and the curb itself. Absent some deed
        or dedication requirement, by definition, for there to be a
        curb, there must be an abutting property owner with
        maintenance responsibilities.

           PennDOT also defines curbs in a similar manner in its
        regulations. 67 Pa. Code § 211.1 defines a curb as a


        define a curb l

        Code § 211.1.

Id. at 204 (some citations and footnote omitted).

     Instantly, we examine the plain language of CASPA. See Braun, 24




                                    -8-
J. S04035/14

alteration of real property.7 Id.

                                                       see Nippes, 815 A.2d at



responsibility of the abutting property owner.     See Hubbard, 660 A.2d at

204; see also Nippes

structure    a raised edging and an alteration of real property. See 73 P.S.

§ 502; Hubbard

within the scope of Section 502.      See 73 P.S. § 502.      It follows that to



real estate.    See id.   We hold that the trial court did not err by applying

CASPA to an oral contract to perform work       e.g.                         on

real property. See id.

                                                                         issues.

Appellant insists that the trial court erred by finding Appellee established the



and documents did not sufficiently establish the contract terms. Appellant

suggests th

for work done pursuant to the purchase orders did not establish valid and

enforceable contracts.       Appellant, we conclude, has not established

entitlement to relief.


7
    We acknowledge the circular nature of the definitions.




                                      -9-
J. S04035/14

         A [judgment notwithstanding the verdict] can be entered
         upon two bases: (1) where the movant is entitled to
         judgment as a matter of law; and/or, (2) the evidence was
         such that no two reasonable minds could disagree that the
         verdict should have been rendered for the movant. When
         reviewing a trial court's denial of a motion for [judgment
         notwithstanding the verdict], we must consider all of the
         evidence admitted to decide if there was sufficient
         competent evidence to sustain the verdict. In so doing, we
         must also view this evidence in the light most favorable to
         the verdict winner, giving the victorious party the benefit
         of every reasonable inference arising from the evidence
         and rejecting all unfavorable testimony and inference.
         Concerning any questions of law, our scope of review is
         plenary. Concerning questions of credibility and weight
         accorded the evidence at trial, we will not substitute our
         judgment for that of the finder of fact. If any basis exists
         upon which the [court] could have properly made its
         award, then we must affirm the trial court's denial of the
         motion for [judgment notwithstanding the verdict]. A
         [judgment notwithstanding the verdict] should be entered
         only in a clear case.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)

(citation omitted) (setting forth standard of review for bench trial).

         [T]he question of whether an undisputed set of facts
         establishes a contract is a matter of law. It is also well
         settled that in order for an enforceable agreement to exist,

         parties mutually assent to the same thing, as evidenced by
         an offer and its acceptance. It is equally well established
         that an offer may be accepted by conduct and what the
         parties do pursuant to the offer is germane to show
         whether the offer is accepted. In cases involving contracts
         wholly or partially composed of oral communications, the
         precise content of which are not of record, courts must
         look to the surrounding circumstances and course of
         dealing between the parties in order to ascertain their

         conduct to ascertain the presence of a contract.




                                     - 10 -
J. S04035/14

Refuse Mgmt., 448 Pa. Super. at 415-16, 671 A.2d at 1146 (citations and

internal quotation marks omitted); Boyle v. Steiman, 429 Pa. Super. 1, 16-

17, 631 A.2d 1025, 1033 (1993).

        In Boyle, this Court ascertained whether the evidence substantiated

the existence of an oral contract. Boyle, 429 Pa. Super. at 16-17, 631 A.2d

at    1033.    In   Boyle,   the   plaintiff    a   private   investigator   sued   the

defendant a personal injury attorney           for breach of oral contract. Id. at 6,

631 A.2d at 1028. The plaintiff alleged that the defendant failed to pay fees

                                                          Id. The defendant, inter

alia, challenged the sufficiency of evidence for an oral contract. Id. at 16-

17, 631 A.2d at 1033.

        The Boyle Court disagreed:

              Instantly, the evidence presented by the [plaintiff8] was
           more than sufficient to meet their burden of proving the
           existence of an oral contract between the [plaintiff] and

           that the [defendant] would contact the [plaintiff] or the
           administrators with personal injury cases and these cases
           would be investigated and results of the investigations
           would be submitted to the [defendant] together with a bill.
           The [defendant] then paid every bill submitted to him.
           This course of dealing continued until 1983 when the
           [defendant] began to fail to pay some of the bills
           submitted to him by the [plaintiff]. Thus, the evidence
           presented by the administrators was sufficient to meet

8
    Because the plaintiff had passed away prior to trial, the administrators of

plaintiff were substituted for the plaintiff. Boyle, 429 Pa. Super. at 7, 631
A.2d at 1028.




                                       - 11 -
J. S04035/14

         their burden of establishing the existence of an oral
         contract for investigative services between the parties.
         Additionally, the evidence established a course of dealings
         between the parties that proved that the [plaintiff]
         expected to be paid for his investigative services and was
         not accepting the investigation assignments on a
         contingency basis as alleged by the [defendant]. Finally,
                                                   hes the existence
         of an oral contract between the parties for investigative
         services and that these services were provided by the
         [plaintiff] on all of the disputed bills.

Id. at 17, 631 A.2d at 1033-34.

      Instantly, after viewing the evidence in the light most favorable to

Appellee as the verdict winner, see Joseph, 89 A.3d at 260, we hold the

record established the existence of the four oral contracts at issue.     See

also Donnelly, 553 Pa. at 611, 720 A.2d at 454 (holding appellate court

can affirm on any basis).     Appellant, similar to the defendant in Boyle,

would contact Appellee with a purchase order specifying a project, albeit in

                                     See Trial Ct. Op. at 2-5; cf. Refuse

Mgmt., 448 Pa. Super. at 416, 671 A.2d at 1146 (statin

                        Boyle, 429 Pa. Super. at 17, 631 A.2d at 1033-34.

Appellee, similar to the plaintiff in Boyle, would subsequently perform the

requested service and invoice Appellant. See Trial Ct. Op. at 2-5; cf. Boyle,

429 Pa. Super. at 17, 631 A.2d at 1033-34; cf. also Refuse Mgmt., 448

Pa. Super. at 416, 671 A.2d at 1146.          Appellant, in fact, unlike the

defendant in Boyle                                               See Trial Ct.

Op. at 2-5. Further, the instant parties, identical to the Boyle parties, had a



                                    - 12 -
J. S04035/14

substantially similar, extensive course of dealing for almost a decade before

nonpayment began. See Trial Ct. Op. at 1; cf. Boyle, 429 Pa. Super. at 17,

631 A.2d at 1034.

     Similar to the Boyle Court, which affirmed the existence of an oral

contract based on an analogous evidentiary record, we cannot conclude that

the evidence was such that a verdict for Appellant was clear. See Joseph,



documentation w

some of the instant invoices, thus evidencing acceptance. See Trial Ct. Op.

at 2-5 (citing documents substantiating partial payment by Appellant); see

also Refuse Mgmt., 448 Pa. Super. at 416, 671 A.2d at 1146 (holding



Accordingly, having discerned no abuse of discretion or error of law, we

affirm the judgment below, albeit partially on other grounds. See Braun,

24 A.3d at 890; Refuse Mgmt., 448 Pa. Super. at 412-13, 671 A.2d at

1145; see also Donnelly, 553 Pa. at 611, 720 A.2d at 454.

     Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2014




                                   - 13 -
