J-A09005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 RL MECHANICAL, INC.                       :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                     Appellant             :
                                           :
                                           :
              v.                           :
                                           :
                                           :
 RC COMPANY, INC.                          :    No. 2934 EDA 2018


          Appeal from the Judgment Entered, September 6, 2018,
             in the Court of Common Pleas of Chester County,
                  Civil Division at No(s): 2015-11798-CT.


BEFORE:    KUNSELMAN, J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY KUNSELMAN, J.:                             FILED JULY 08, 2019

      RL Mechanical, Inc., Subcontractor, appeals from the judgment entered

against it on its claims for breach of contract and violation of Pennsylvania’s

Contractor and Subcontractor Payment Act and in favor of the RC Company,

Inc., General Contractor, for breach of contract and related claims.         Upon

review, we affirm.

      The trial court set forth detailed findings of fact in its decision. Briefly,

we note that this case arises out of contractual dealings between the parties

on two projects, the Vivarium Project and the Dental Office Project. RC served

as the General Contractor; RL served as the Subcontractor to design and

install HVAC systems. For each project, General Contractor and Subcontractor

entered into a purchase order with general conditions and a subcontractor

agreement. Disputes between the parties arose over each party’s compliance


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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with the contract documents. The Subcontractor filed suit; General Contractor

then filed counterclaims. The claims are summarized below.

      First, regarding the Vivarium Project, Subcontractor submitted Invoice

3 in the amount of $87,857.10 to General Contractor for payment.         This

invoice included a balance due for special order equipment in the amount of

$65,264.58, which Subcontractor claimed was to be paid up front. However,

General Contractor only paid $45,939.58 of the total amount requested.

      According to Subcontractor, the payment process employed by General

Contractor for Invoice 3 was not consistent with the process used for prior

requests. For Invoices 1 and 2, the parties did not follow the payment process

terms provided for in their contract.   Instead, a representative of General

Contractor reviewed the invoice, informed Subcontractor of the amount it

disputed, if any, and noted an adjusted amount on the paperwork. General

Contractor then issued payment consistent therewith.

      However, with respect to Invoice 3, General Contractor did not inform

Subcontractor that it disputed any portion of the payment request, and instead

just unilaterally adjusted the amount to be paid. Moreover, the amount paid

was not consistent with the amount General Contractor’s administrative

assistant, Deborah McGreal, had noted on the paperwork.          Additionally,

General Contractor requested documentation supporting the request which it

had not required before.      Because General Contractor did not pay in

accordance with the usual payment process, Subcontractor claims General

Contractor breached the parties’ agreement.     Consequently, Subcontractor

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suspended performance, and filed suit seeking the balance of the contract due

from General Contractor.

      General Contractor countered, claiming that Subcontractor did not

request payment under Invoice 3 in conformance with the agreement’s

payment provisions. According to General Contractor, Subcontractor did not

submit the required documentation. Additionally, the contract documents did

not provide for prepayment of equipment as Subcontractor had demanded.

Consequently, General Contractor only paid the amount it was required to pay

pursuant to the terms of the contract documents.             Then, because

Subcontractor walked off the job, General Contractor claimed it had to hire

another contractor, Sebastian and Sons, to complete the project.     General

Contractor sought damages incurred for having to use another contractor to

complete the project at a higher price.

      Second, regarding the Dental Office Project, Subcontractor claimed that

General Contractor failed to pay the total amount due under the contract,

$14,862, for several months. As a result, Subcontractor filed a mechanics’

lien claim. Sometime thereafter, General Contractor paid in full, subject to

any claims.

      General Contractor countered, claiming that the Subcontractor failed to

provide General Contractor with documentation needed to close out the

project with the tenant and building owner. Consequently, General Contractor

withheld payment.     Additionally, Subcontractor failed to install a certain

exhaust fan required per the contract documents. General Contractor sought

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damages in the amount of $1,600, for the fan that was not installed and the

credit General Contractor gave the project owner for not installing it.

      Both parties requested attorney’s fees for having to take legal action to

recover amounts they claimed were owed under the contract documents.

      Following a bench trial, the court found in favor of Contractor and

awarded it $8,350 total on its counterclaims for both projects, plus attorney’s

fees to be determined. Subcontractor filed post-trial motions, which the trial

court denied. The parties then stipulated to General Contractor’s attorney’s

fees in the amount of $30,249.29.      Judgment was entered in the amount

$38,599.29.

      Subcontractor timely appealed.       Subcontractor and the trial court

complied with Pa.R.A.P. 1925.

      On appeal, Subcontractor raises the following issues:

      1. Did the trial court err in making findings of fact unsupported by
         substantial evidence, abuse its discretion, and commit errors
         of law by failing to conclude that the written agreements of the
         parties were modified by the conduct and course of
         performance of the parties such that:

         (a)   [General Contractor’s] failure to make payment as
               required constituted a material breach of the contract
               between the parties;

         (b)   [Subcontractor] was entitled to suspend performance
               when not paid?

      2. Did the trial court made [sic] findings of fact unsupported by
         substantial evidence, abuse its discretion, and commit errors
         of law by awarding attorney’s fees to [General Contractor]?

      3. Did the trial court make findings of fact unsupported by
         substantial evidence, abuse its discretion, and commit errors


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         of law by awarding damages to [General Contractor] for the
         cost of “completing” the Vivarium Project?

Subcontractor’s Brief at 4. Subcontractor asks this Court to enter judgment

in its favor and remand for determination of an award of attorneys’ fees.

      Our review in a non-jury case is

      limited to a determination of whether the findings of the trial court
      are supported by competent evidence and whether the trial court
      committed error in the application of law. Findings of the trial
      judge in a non-jury case must be given the same weight and effect
      on appeal as a verdict of a jury and will not be disturbed on appeal
      absent error of law or abuse of discretion. When this Court reviews
      the findings of the trial judge, the evidence is viewed in the light
      most favorable to the victorious party below and all evidence and
      proper inferences favorable to that party must be taken as true
      and all unfavorable inferences rejected.

Hart v. Arnold, 884 A.2d 316, 330–331 (Pa. Super. 2005), appeal denied,

897 A.2d 458 (2006) (citations omitted). “The [trial] court’s findings are

especially binding on appeal, where they are based upon the credibility of the

witnesses, unless it appears that the court abused its discretion or that the

court’s findings lack evidentiary support or that the court capriciously

disbelieved the evidence.”    Id. (citations omitted).     “Conclusions of law,

however, are not binding on an appellate court, whose duty it is to determine

whether there was a proper application of law to fact by the lower court.”

Tagliati v. Nationwide Ins. Co., 720 A.2d 1051, 1053 (Pa. Super. 1998),

appeal denied, 740 A.2d 234 (1999). “With regard to such matters, our scope

of review is plenary as it is with any review of questions of law.” Id.




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      We also must consider whether the trial court properly denied

Subcontractor’s post-trial motion seeking JNOV. The propriety of a JNOV is a

question of law, and therefore, our scope of review is plenary. Foster v.

Maritrans, Inc., 790 A.2d 328, 330 (Pa. Super. 2002).

      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. Reott v. Asia Trend, Inc., 7

A.3d 830, 835 (Pa. Super. 2010), aff’d, 55 A.3d 1088 (Pa. 2012). With the

first, the court reviews the record and concludes that, even with all factual

inferences decided adverse to the movant, the law nonetheless requires a

verdict in his favor. Id. With the second, the court reviews the evidentiary

record and concludes that the evidence was such that a verdict for the movant

was beyond peradventure. Id.

      Moreover,

      [i]n reviewing a trial court’s decision whether or not to grant
      judgment in favor of one of the parties, we must consider the
      evidence, together with all favorable inferences drawn therefrom,
      in a light most favorable to the verdict winner.

Reott, 7 A.3d at 835. Concerning questions of credibility and weight accorded

the evidence at trial, we will not substitute our judgment for that of the finder

of fact. Eichman v. McKeon, 824 A.2d 305, 312 (Pa. Super. 2003). Thus,

when there is a question of fact to be resolved, it is within the purview of the

factfinder. Rohm & Hass Co. v. Continental Cas. Co., 732 A.2d 1236, 1248


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(Pa. Super. 1999). JNOV should not be entered where evidence is conflicting

upon a material fact. Id.

      “Our standard[s] of review when considering motions for a directed

verdict and judgment notwithstanding the verdict are identical.”         Reott, 7

A.3d at 835. “We will reverse a trial court's grant or denial of a [JNOV] only

when we find an abuse of discretion or an error of law that controlled the

outcome of the case.” Id.

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

that the parties did not modify the written payment process provisions based

upon their course of conduct.      According to Subcontractor, the evidence

established that the parties modified the payment terms of the applicable

construction contracts by their conduct.       Subcontractor’s Brief at 16-17.

Subcontractor further argues that the trial court erred in finding that

Subcontractor was not entitled to suspend performance based upon General

Contractor’s breach of contract for failure to pay in accordance with the

modified payment process.      Id. at 18.   Thus, according to Subcontractor,

because the trial court’s conclusions were not supported by the evidence, the

trial court erred as a matter of law. Id. We disagree.

     A written agreement may be modified by a subsequent oral agreement

which may be shown by words or conduct of the parties. Levicoff v. Richard

I. Rubin & Co., 196 A.2d 359 (Pa. 1964). An oral modification of a written

contract must be based upon valid consideration. In re Estate of Bowman,




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797 A.2d 973, 977 (Pa. Super. 2002). Any such modification must be proven

by evidence which is clear, precise and convincing.      Id. at 977.

      On the Vivarium Project, the trial court found that the circumstances

surrounding    Subcontractor’s    payment     requests    did   not    satisfy   the

requirements for establishing a modification of the parties’ written agreement.

The trial court explained in detail:

      Without doubt, the first and second invoices contain the
      handwriting of General Contractor’s administrative assistant
      Deborah McGreal setting forth an adjusted figure and this sum
      was paid to Subcontractor. McGreal testified that part of her job
      duties included reviewing and marking up invoices for her
      supervisor; McGreal tried to catch and correct errors before
      passing invoices along. In other instances, McGreal’s supervisor
      would instruct her to make corrections to the invoices. McGreal
      had no authority to approve payments to Subcontractors.
      McGreal’s supervisor determined what payment would be made
      and gave McGreal permission to write a check in that amount.
      McGreal would then meet with Brian Walsh, Subcontractor's
      principal (“Walsh”) at General Contractor’s office, finalize the
      paperwork, including notarizing Walsh’s signature on the invoice,
      and turnover [sic] the check.

      When the third invoice was submitted, disputes were building
      between the parties. General Contractor was dissatisfied with
      Walsh’s failure to regularly appear at the job site. General
      Contractor blamed delays on Subcontractor’s staffing. Walsh
      believed that the job was improperly staged because ceilings and
      walls were closed before he could do his work. At the time the
      third invoice was submitted, General Contractor requested
      documentation from Subcontractor to verify that Subcontractor
      had paid its suppliers. The contract called for this proof at 50%
      completion. Therefore, such documentation was not required
      when the first and second invoices were paid.

      When the third invoice was under review, McGreal asked Walsh
      for proof that he had paid his suppliers. Specifically, she required
      submission of one of two forms specified in the contract. One
      form, identified as Exhibit C-2 A in the contract, is a partial release


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      of liens from the Subcontractor’s vendors, and the other, identified
      as Exhibit C-2 B in the contract, is a final waiver of liens from the
      Subcontractor’s vendors. Subcontractor supplied neither form.
      McGreal adjusted the third invoice. The payment authorized by
      James Cottone, General Contractor’s principal and project
      manager, and paid to Walsh was approximately half of the
      adjusted amount. Since McGreal was not told the reason for the
      reduced payment, she was unable to advise Walsh.

      A course of conduct between the parties can be sufficient to
      demonstrate the intention of the parties to orally modify an
      agreement. Subcontractor does not allege that words were
      spoken that resulted in a modification, only that conduct resulted
      in a change. Specifically, that he was entitled to be paid the
      adjusted amount. A written agreement can be modified by a
      subsequent oral agreement provided the latter is based upon a
      valid consideration and is proved by evidence which is clear,
      precise and convincing. Subcontractor has not suggested what
      consideration was provided for the modification he contends was
      made. Furthermore, the evidence of modification, as discussed,
      is neither clear, precise nor convincing. McGreal’s markings on
      the invoice were for in-house processing. There is no evidence
      that they represented a promise to pay. There is no evidence the
      payment process specified in the contract was modified such that
      Subcontractor could rely on these markings.          The contract
      provision calling for documentation to be submitted by
      Subcontractor at 50% completion was not relevant until the third
      invoice was submitted. Evidence of payment made without lien
      waivers on the first and second invoices does not support a
      conclusion that this provision was intended to be waived on the
      third invoice, when it first became relevant.

      Subcontractor continued to work after accepting the reduced
      payment on the third invoice undermining his position that he
      walked from the job due to non-payment. Six days later, when
      Cottone visited the job site and confronted Walsh on his failure to
      deliver equipment that Walsh had represented was onsite and on
      his failure to properly staff the job, Walsh walked off the job. It
      is evident that Subcontractor did not abandon the job due to pay
      issues, but because of this confrontation.

Trial Court Opinion, 1/24/18, at 2-3 (citations and quotations omitted).




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         Viewing the evidence in the light most favorable to General Contractor

as we are required to do, our review of the record reveals that there was

sufficient evidence to support the trial court’s findings and its conclusion that

the parties did not orally modify the payment terms of the contract. To the

extent that the evidence was conflicting, it was within the trial court’s province

to resolve such conflict. JNOV should not be entered based upon the existence

of conflicting evidence. See Rohm & Hass Co., 732 A.2d at 1248.

         Moreover, although a party may be entitled to suspend performance

where the other party materially breaches the contract, Widmer Eng’g, Inc.

v. Dufalla, 837 A.2d 459, 467 (Pa. Super. 2003), here the evidence

demonstrated, as the trial court found, that General Contractor did not breach

the contract. Rather, Subcontractor breached the contract by leaving the job

and failing to complete the project, and was not entitled to suspend

performance.

         We therefore conclude that the trial court did not abuse its discretion or

commit an error of law in denying Subcontractor’s request for JNOV on this

basis.

         In its second issue, Subcontractor argues that the trial court erred in

awarding General Contractor attorney’s fees which it incurred in responding

to this action (for both projects) as well as the mechanics’ lien action on the

Dental Office Project.      According to Subcontractor, the purchase orders’

general conditions and the agreements for the projects had conflicting

provisions regarding attorney’s fees. Because General Contractor drafted the

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contract, Subcontractor argues that any ambiguity should be resolved in favor

of Subcontractor. Thus, Subcontractor claims the trial court erred in awarding

General Contractor attorney’s fees.    Subcontractor’s Brief at 23, 25.     We

disagree.

      The Pennsylvania Supreme Court has noted:

      [T]he 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.” This so-called “American
      Rule” holds true “unless there is express statutory authorization,
      a clear agreement of the parties, or some other established
      exception.

McMullen v. Kutz, 985 A.2d 769, 775 (Pa. 2009) (citations omitted)

(emphasis added).

      Section 15.4 of the agreement for both projects provided:

      Should either party employ an attorney to institute suit or demand
      arbitration to enforce any of the provisions hereof, to protect its
      interest in any matter arising under this Agreement, to collect
      damages for the breach of the Agreement, or to recover on a
      surety bond given by a party under this Agreement, the party
      prevailing, after verdict or award, shall be entitled to recover
      reasonable attorney's fees, costs, charges and expenses
      expended or incurred therein as part of its verdict or award.

We note that the purchase orders’ general conditions were silent on the issue

of attorney’s fees. As the trial court concluded, there was no ambiguity or

conflict as claimed by Subcontractor. See Trial Court Opinion, 1/24/ 18, at 3.

Thus, because the agreements clearly set forth the parties’ intent regarding

attorney’s fees, we discern no abuse of discretion or error of law in the trial

court’s award of attorney’s fees to General Contractor.


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      In its third issue, Subcontractor argues that the trial court erred in

awarding General Contractor damages for the cost of hiring another

subcontractor to complete the Vivarium Project.          The trial court awarded

General     Contractor   $8,350.00,   the   difference   between what   General

Contractor paid to Sebastian and Sons and the unpaid balance under the

Vivarium purchase order. According to Subcontractor, Sebastian and Sons did

not complete the contract, but rather designed and installed an entirely

different HVAC system.       Moreover, the system did not function properly.

Subcontractor’s Brief at 26. We disagree.

      Indisputably, “[w]here the subject to a contract relates to building or

construction, the measure of damages [for breach by the contractor] is the

reasonable cost to the owner of completing the contract . . . .” Magar v.

Lifetime, Inc., 144 A.2d 747, 748 (Pa. Super. 1958) (quotations and citations

omitted).

      In awarding damages to General Contractor on the Vivarium Project,

the trial court explained:

      After Subcontractor walked off the job, Sebastian was engaged to
      inspect the status of Subcontractor’s work, determine what was
      needed to complete the work and to then complete the work. At
      that time, the walls and ceiling were closed necessitating design
      changes. The project completed by Sebastian, the installation of
      HVAC for a newly constructed vivarium, was the same project for
      which Subcontractor had been contracted. The changes were
      necessitated by the state of the project when Sebastian came
      onboard after Subcontractor failed to perform. There were no
      upgrades. There was no expansion of the project. Alliance
      Pharmaceutical (“Owner”) accepted and paid for the completed
      project. Owner acquired certification of the facility from the


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      Association for Assessment and Accreditation of Laboratory
      Animal Care, which was the desired outcome. Since delivering the
      project, General Contractor has continued to work with Owner to
      address humidification issues in the vivarium. Despite these
      issues, there was no testimony that the Owner was dissatisfied
      with the project. As recited by Subcontractor, the measure of
      damages for a construction contractor’s breach is the cost of
      completing the contract or correcting the defective work, minus
      the unpaid part of the contract price. Had the ceiling and walls
      been removed to complete Subcontractor’s work, the damages
      assessed would have been greater. Avoiding waste, General
      Contractor proceeded with a different design, which accomplished
      the same goal and was accepted by the Owner.

Trial Court Opinion, 1/24/18, at 3-4.

      Again, viewing the evidence in the light most favorable to General

Contractor as we are required to do, our review of the record reveals that

there was sufficient evidence to support the trial court’s findings and its

conclusion that General Contractor was entitled to damages for the additional

costs it incurred to complete the Vivarium Project.    As discussed above,

Subcontractor was not justified in leaving the job. Where a request for JNOV

is based upon conflicting evidence as it is here, JNOV should be denied. See

Rohm & Hass Co., 732 A.2d at 1248. We therefore conclude that the trial

court did not abuse its discretion or commit an error of law in denying

Subcontractor’s request for JNOV on this basis.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/8/19




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