J-A23041-14


                                  2014 PA Super 205

THORSTEN STEPHAN,                                IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

WALDRON ELECTRIC HEATING AND
COOLING LLC,

                            Appellant                 No. 1960 WDA 2013


            Appeal from the Judgment entered December 10, 2013,
              in the Court of Common Pleas of Allegheny County,
                        Civil Division, at AR-12-003147


BEFORE: DONOHUE, ALLEN, and MUSMANNO, JJ.

OPINION BY ALLEN, J.:                           FILED SEPTEMBER 19, 2014

       Waldron Electric Heating and Cooling LLC, (“Appellant”), appeals from

the trial court’s orders denying Appellant’s preliminary objections, motion for

judgment on the pleadings, motion for summary judgment, and motion for

post-trial relief.1 After careful consideration, we reverse the trial court and

vacate the judgment in favor of Thorsten Stephan (“Stephan”).



____________________________________________


1
   Appellant asserts that the order overruling Appellant’s preliminary
objections was an “order overruling the Appellant’s Motion for Judgment on
the Pleadings.” Appellant’s Brief at 3. However, the trial court was only
presented with Appellant’s preliminary objections in the nature of a
demurrer, and not a motion for judgment on the pleadings. See generally
Appellant’s Preliminary Objections in the Nature of a Demurrer, 5/30/12, 1-2
(unnumbered).       The trial court’s order was confined to Appellant’s
preliminary objections. See Order, 6/22/12, at 1.
J-A23041-14



      Our review of the record reveals the following:     On April 3, 2012,

Stephan initiated an action against Appellant in the Allegheny County

Magisterial District Court at docket number MJ-05235-CV-0000064-2012.

On May 10, 2012, following a hearing, the magisterial district judge entered

judgment in favor of Stephan in the amount of $1,319.00, plus filing fees of

$94.00, for a total judgment of $1,413.00.

      On May 18, 2012, Appellant appealed the judgment to the Allegheny

County Court of Common Pleas. On May 21, 2012, Stephan, appearing pro

se, filed a short form complaint alleging “extreme overcharging by

[Appellant] for a minor home repair.” Stephan’s Complaint, 5/21/12, at 1.

On May 30, 2012, Appellant filed preliminary objections in the nature of a

demurrer.   On June 19, 2012, Stephan filed a response to Appellant’s

preliminary objections.

      In response to Appellant’s preliminary objections, Stephan conceded

that he “called [Appellant] that morning via The Yellow Pages for repair of

sudden non-functioning of one of my electric outlets.” See [R]e: Plead[ing]

of [Stephan] v. [Appellant] in front of [the trial court] on June 22, 2012,

6/19/12, at 1 (unnumbered). Stephan expressed that Appellant’s electrician

“[b]efore he ever looked at the outlet … presented a company contract form

detailing the price for the week-end trip and general information on possible

diagnostic and repair work if needed. I was asked to read, sign and initial

the paper at various places which I did.” Id.

      Stephan explained:

                                    -2-
J-A23041-14


             When [Appellant’s electrician] finally checked the non-
      functioning electric outlet, he did not find any defect there. He
      asked me: Do you still want me to repair the problem? I said:
      Of course. His answer: That will cost you at least an extra
      $1,000 [dollars]. I was shocked. I asked: Do you expect such
      an extensive work up and repair? Do you mean to say that you
      may need to open some walls and replace some electric lines?
      He shrugged his shoulders. Finally I agreed. Do what you have
      to do. He was here and I owed him $300 [dollars] already for
      his visit even letting him go without work. []

            After I had agreed verbally with further work, it did not
      take him more than a total of fifteen minutes to find and fix the
      problem.    First he looked around the apartment for a few
      minutes without touching any fuses or other outlets. Then he
      went into the adjacent bedroom and opened 2 electric outlets,
      one after the other. The second unit showed a loose and burnt
      connection explaining the non-functioning of the electric outlet in
      the other room.

Id.   After the loose and burnt connection was repaired, the electrician

“completed the bill,” which “added up to $1,469 [dollars] including t[he]

$402 [dollars] for diagnosis and $721 [dollars] for repair.”         Id. at 2.

Stephan asserted that “[t]he following Monday, I consulted a certified

electrician referred by the manager of our condominium association.         He

reviewed the work and agreed with what was done[.]” Id.

      On June 22, 2012, the trial court overruled Appellant’s preliminary

objections.   On September 13, 2012, Appellant filed an answer and new

matter.   On September 14, 2012, an arbitration hearing convened, at the

conclusion of which the arbitration panel found in favor of Stephan and

awarded him $900.00.      On September 18, 2012, Appellant appealed the

arbitration award.



                                     -3-
J-A23041-14



          Appellant deposed Stephan on March 4, 2013. During his deposition,

Stephan admitted that Appellant’s electrician “had given [Stephan] some

sort of price before he did the work[.]” N.T., Stephan’s Deposition, 3/4/13,

at 14.      Stephan testified that Appellant’s electrician “seemed like a pretty

bright guy” and was “very competent.” Id. at 31. Stephan denied that the

electrician “was intimidating or threatening in any way to [Stephan].”       Id.

Appellant’s electrical system has continued to function properly since the

repair.     Id. at 30.   Stephan acknowledged signing a “final sign-off sheet”

from Appellant’s electrician, and that “where [Stephan’s] name is written in

it says, Satisfaction of work performed, work fully completed and prices

acknowledged in advance and approved by buyer in writing[.]”         Id. at 41-

42. Stephan testified that he signed because “I knew already that I would

cancel [the contract].” Id. at 42.

          On June 13, 2013, Appellant filed a motion for summary judgment,

which was scheduled for argument on August 26, 2013. On September 4,

2013, the trial court entered an order denying Appellant’s motion for

summary judgment.         On September 12, 2013, the trial court conducted a

non-jury trial.    On September 13, 2013, the trial court issued a verdict in

favor of Stephan, and against Appellant, in the amount of $1,000.00.         On

September 23, 2013, Appellant filed a motion for post-trial relief.          On

September 24, 2013, the trial court denied Appellant’s motion for post-trial

relief.




                                       -4-
J-A23041-14



      On October 1, 2013, Appellant filed a notice of appeal. On November

21, 2013, our Court quashed sua sponte, without prejudice, Appellant’s

appeal by per curiam order because final judgment had not been entered.

In the interim, on October 10, 2013, the trial court ordered Appellant to file

a concise statement of errors complained of on appeal.       On November 1,

2013, Appellant filed its Pa.R.A.P. 1925(b) statement.      On November 19,

2013, the trial court filed a memorandum in lieu of a Pa.R.A.P. 1925(a)

opinion. On December 10, 2013, judgment was entered in favor of Stephan.

That same day, Appellant filed this appeal.

      Appellant presents the following issues for our review:

      1. Did the Trial Court err in failing to grant the Appellant's
      Preliminary Objections in the Nature of a Demurrer where
      [Stephan] failed to plead any material fact that could give rise to
      any legitimate cause of action upon which the Appellant could
      effectively base his legal defense?

      2. Did the Trial Court further err in denying the Appellant's
      Motion for Summary Judgment when, even taken in a light most
      favorable to [Stephan], the complained of factual basis and
      record as a whole, contain no legitimate cause of action, and,
      most strikingly, when [Stephan] undisputedly entered into a
      contractual agreement with the Appellant with a fraudulent
      intent?

      3. Did the Trial Court err when it denied a Motion for a Directed
      Verdict made by the Appellant even though [Stephan] failed to
      sustain, during his case in chief, the legal burden of his
      allegation, and even though he admitted, under oath, to
      committing fraud in the inducement of the contract with the
      Appellant?

      4. Did the Trial Court err and abuse its discretion when it
      entered a verdict for [Stephan] and against the Appellant despite
      the lack of any valid, legal cause of action and the undisputed
      understanding of the written contractual terms and obligations

                                     -5-
J-A23041-14


      by the parties, as well as the admitted fraudulent purpose and
      motivation of [Stephan].

      5. Lastly, did the Trial Court err and abuse in discretion by
      finding in favor of [Stephan] and then by further failing to grant
      the Appellant's Motion for Reconsideration based upon the issues
      currently at bar?

Appellant’s Brief at 8-9.

      After carefully scrutinizing the record, we find that the trial court erred

in entering judgment in favor of Stephan.          Since our determination is

dispositive of this appeal, we confine our analysis to this issue.

      We have expressed:

      Judicial discretion requires action in conformity with law on facts
      and circumstances before the trial court after hearing and
      consideration. Consequently, the court abuses its discretion if,
      in resolving the issue for decision, it misapplies the law or
      exercises its discretion in a manner lacking reason. Similarly,
      the trial court abuses its discretion if it does not follow legal
      procedure.

Lachat v. Hinchcliffe, 769 A.2d 461, 487 (Pa. Super. 2001).

      It is well-settled:

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

           The trial court’s conclusions of law on appeal originating
      from a non-jury trial are not binding on an appellate court

                                      -6-
J-A23041-14


      because it is the appellate court’s duty to determine if the trial
      court correctly applied the law to the facts of the case.

Wyatt, Inc. v. Citizens Bank of Pennsylvania, 976 A.2d 557, 564 (Pa.

Super. 2009) (internal citations omitted).

      Appellant   contends   that   “[a]t    issue    here   is   the    trial   court’s

interpretation of the duties and obligations of a contract[.]” Appellant’s Brief

at 6. We recognize:

      The interpretation of any contract is a question of law and this
      Court's scope of review is plenary. Moreover, we need not defer
      to the conclusions of the trial court and are free to draw our own
      inferences. In interpreting a contract, the ultimate goal is to
      ascertain and give effect to the intent of the parties as
      reasonably manifested by the language of their written
      agreement. When construing agreements involving clear and
      unambiguous terms, this Court need only examine the writing
      itself to give effect to the parties' understanding. This Court
      must construe the contract only as written and may not modify
      the plain meaning under the guise of interpretation.

Humberston v. Chevron U.S.A., Inc., 75 A.3d 504, 509–10 (Pa. Super.

2013)     (internal    quotation      marks          and     citations       omitted).

      We have explained:

            Contracts are enforceable when the parties reach a mutual
      agreement, exchange consideration, and have set forth the
      terms of their bargain with sufficient clarity. Greene v. Oliver
      Realty, Inc., 363 Pa.Super. 534, 526 A.2d 1192 (1987). An
      agreement is sufficiently definite if it indicates that the parties
      intended to make a contract and if there is an appropriate basis
      upon which a court can fashion a remedy. Id. Moreover, when
      the language of a contract is clear and unequivocal, courts
      interpret its meaning by its content alone, within the four
      corners of the document. Id. (citing Mears, Inc. v. National
      Basic Sensors, 337 Pa. Super. 284, 289, 486 A.2d 1335, 1338
      (1984)).


                                     -7-
J-A23041-14


           Traditional contract law distinguishes between bilateral and
     unilateral contracts. Bilateral contracts involve two promises
     and are created when one party promises to do or forbear from
     doing something in exchange for a promise from the other party
     to do or forbear from doing something else. Id. Unilateral
     contracts, in contrast, involve only one promise and are formed
     when one party makes a promise in exchange for the other
     party's act or performance.       Id.   Significantly, a unilateral
     contract is not formed and is, thus, unenforceable until such
     time as the offeree completes performance. Id.

First Home Sav. Bank, FSB v. Nernberg, 648 A.2d 9, 14 (Pa. Super.

1994).

     Moreover:

           Traditional contract law distinguished between contracts
     involving two promises which were called bilateral and contracts
     involving only one promise which were called unilateral. Murray,
     Contracts at 9. A bilateral contract is created when one party
     promises to do or forbear from doing something in exchange for
     the other party's promise to do or forbear from doing something
     else. In a unilateral contract there is only one promise. It is
     formed when one party makes a promise in exchange for the
     other person's act or performance. Id. at 10. Mutuality of
     obligation means that both parties are under an obligation to
     perform their promises. It is often stated that a contract is
     unenforceable if there is no such mutuality but this principle is
     inapplicable to unilateral contracts. See Darlington v. General
     Elec., 350 Pa. Super. 183, 203, 205, 504 A.2d 306, 316, 317
     (1986). If A promises B $100 if B walks across the Brooklyn
     Bridge, a unilateral contract will be formed if B does as A
     requests. It is a unilateral contract because it consists of a
     promise in exchange for a performance. However, the contract
     is not formed until B walks across the bridge. At that time, A
     owes B $100 even though B no longer has any obligation to A. A
     unilateral contract is formed by the very act which constitutes
     the offeree's performance. Therefore, mutuality of obligation will
     never exist in such a situation. By the time the contract is
     formed, only the offeror will remain obligated. The offeree will
     already have performed. This is why the Restatement provides
     that: “If the requirement of consideration is met, there is no


                                    -8-
J-A23041-14


     additional requirement of ... (c) ‘mutuality of obligation.’”
     Restatement of Contracts (Second) § 79 (1981).

Greene v. Oliver Realty, Inc., 526 A.2d 1192, 1194-1195 (Pa. Super.

1987).

     At trial, Stephan, appearing pro se, testified as follows:

          I'm charging [Appellant] for excessive over charging for a
     minor home repair.

           It was one Saturday in January, I think last year, that I
     called them for a nonfunctioning electrical outlet, and I had
     found a company in the Yellow Pages. I called them and they
     were very responsive and came very fast to my apartment
     where this happened. I have a condominium and the only thing
     is, he spent maybe less than an hour in my home, but most of
     the time he asked me to fill out papers before he even
     looked at the defect and after. Then he looked at the defect
     and within 15 minutes he had fixed it.

            Before he never mentioned anything about cost of
     labor and price, then he checks the outlet and said, "it's
     fine, what do you want?" I said, "it doesn't work." He
     said, "do you want any other repair?" I said, "of course,
     fix it." So he said, "that will cost you another $1,000." I
     was shocked and flabbergasted. I said, "what do you plan
     to do, tear all my walls out?" He just said, "do you want it
     done or not?" I said to myself sooner or later I have to
     have it fixed so why not fix it right now. But I couldn't
     imagine such a long and complicated work would follow. So I
     said "yes, go ahead."         Within 15 minutes he had fixed
     everything. He just walked around and checked various
     outlets in the apartment, found one that was defected
     [sic] in a different room, corrected it, there was a burnt-
     out, loose connection. He fixed it and that fixed the outlet
     in the other room. Then came the next shock that he said,
     "okay, now that you're sitting down and filling out all the costs
     for this." Beside the visit, which was $90 which I agreed to on
     the phone, but then came the diagnosis and treatment and
     repair and suddenly it was $400 for the diagnosis and $700 for
     the repair and the total ended up $1,400. I was shocked.



                                    -9-
J-A23041-14


             At the moment I didn't know what to do. I said okay and
       I signed all the papers and, of course, in my mind I said
       within the next three days I have a way to contest this,
       which I did on Monday.2 I called American Express where I
       had written the check and said don't pay anything except $150
       for what I felt was a fair deal. Of course, from then on it was a
       legal matter that they didn't respond to it. So I felt that this was
       excessive for 15 minutes of repair work which the rest was all
       paperwork.

N.T., 9/12/13, at 3-5 (emphasis supplied). Stephan corrected his testimony

that the trip fee was actually $95.00, not $90.00, and that he was “not

disputing that $95.” Id. at 6.

       During cross-examination, Stephan confirmed his deposition testimony

that “even though [Stephan was] told the[] prices up front, [Stephan] didn't

like the price, but [] wanted to have it fixed because it was a Saturday and

[Stephan] wanted to use [his] computer and then [he] figured [he was] just

going to cancel the transaction[.]”            Id. at 16-17.   Stephan also confirmed

that “when [Appellant’s] company came to [his] house,” it “was …

[Stephan’s] expectation that if [Appellant] could find [Stephan’s] problem

and that if [Stephan and Appellant] had some understanding on a price that

____________________________________________


2
   During cross-examination, Stephan acknowledged signing “a three-day
notice of cancellation,” which made him “aware there was three days [he]
could cancel” the contract.      N.T., 9/12/13, at 11.      Stephan further
acknowledged signing “the emergency work authorization form.” Id. at 11-
12. The emergency work authorization required Stephan to “give up [his]
right to cancel the transaction so [Appellant] can do the work” in Stephan’s
home. Id. at 12. Stephan testified that “I suppose I read it but I don’t
remember that I could not cancel within three days.” Id. Stephan never
sent back the three-day cancellation form to Appellant. Id. at 13-14.



                                          - 10 -
J-A23041-14



[Appellant] would then fix [Stephan’s] problem[.]”       Id. at 18.    Stephan

acknowledged that Appellant’s electrician “did fix the problem[.]”           Id.

Stephan testified that Appellant’s electrician was “very competent, very

sharp because within a few minutes he probably knew exactly where the

defect was and how fast he could handle it and that's why I resent very

much that he said ‘that will cost you an extra $1,000 [dollars].’” Id. at 19.

Stephan conceded that he did not “have any witnesses with [him,]” including

any expert witnesses. Id. at 19-20. Stephan further agreed that “when the

transaction was completed”, he signed a portion of the contract indicating

“the price of [$]1,469” and “that the work was completed and that [he]

[was] satisfied with the work.” Id. at 21.

      In its memorandum in lieu of Pa.R.A.P. 1925(a) opinion, the trial court

explained:

      During the bench trial of this matter, in assessing the credibility
      of each party, this Court found [Stephan] to be credible and
      [Appellant] to be not credible. This Court determined that
      [Appellant’s] conduct was deceptive, unreasonable, and unjust.
      Moreover, based on the evidence presented by each party, this
      Court found [Stephan’s] claim was supported by competent
      evidence.

Memorandum in Lieu of Opinion, 11/19/13, at 1 (unnumbered). Ordinarily,

“[i]t is well established that the credibility of witnesses is an issue to be

determined by the trier of fact. On appeal this Court will not revisit the trial

court’s determinations … regarding the credibility of the parties. Thus, [an]

argument, which would require this Court to revisit and essentially reverse



                                     - 11 -
J-A23041-14



the [trial court] on his credibility determinations, provides no grounds for

relief.”    Woods v. Cicierski, 937 A.2d 1103, 1105 (Pa. Super. 2013)

(internal citations omitted). Here, however, the trial court did not cite trial

testimony, exhibits, or any specific basis for its credibility determinations.

See generally Memorandum in Lieu of Opinion, 11/19/13. The trial court did

not expound or set forth any specific grounds for its assertion that Stephan’s

claim was supported by competent evidence. Id. The trial court did not cite

any case law in support of its verdict. Significantly, the trial court did not

specifically respond to Appellant’s contention that Appellant had a valid

contract with Stephan, which Stephan had no legal basis to avoid. While our

standard of review following a non-jury trial is deferential to the trial court,

as   is    our   standard   of   review    regarding      a    trial   court’s   credibility

determinations, in this instance the trial court did not provide any supporting

record references or jurisprudence for its judgment.

       Based     on   our   review    of     applicable       contract    principles   and

jurisprudence, as well as Stephan’s own testimony, which the trial court

found credible, we find that Appellant and Stephan entered into an

enforceable contract for Appellant’s repair of Stephan’s electrical problem.

Stephan was presented with Appellant’s written contract. Stephan agreed to

the work, even after the electrician expressly advised Stephan that the

repair could be $1,000 in addition to the trip free of $95. The final bill of

$1,469 is not grossly disparate from the minimum $1,095 of which Stephan

was apprised, and agreed, that he would be incur for the repair.

                                          - 12 -
J-A23041-14



     Our determination that Stephan and Appellant had an enforceable

contract is unchanged by Stephan’s contention that the service prices were

not entered until after the work was performed. We are mindful:

     If an essential term is left out of the agreement, the law will not
     invalidate the contract but will include a reasonable term. For
     instance, if the parties do not specify price, a court will impose a
     reasonable price which will usually be the item's market value.
     However, if the parties include the term but have expressed
     their intention ambiguously, the court will not impose a
     reasonable term and the contract may fail for indefiniteness. A
     court will not attempt to fix contractual terms which are
     inconsistent with the intent of the parties. That is because the
     paramount goal of contractual interpretation is to ascertain and
     give effect to the intent of the parties. When the language of a
     written contract is clear and unequivocal, its meaning must be
     determined by its contents alone. Only if the words used are
     ambiguous may a court examine the surrounding circumstances
     to ascertain the intent of the parties. [...]. Because courts wish
     to effectuate the parties' intentions, they may enforce an
     indefinite contract if its terms have become definite as the result
     of partial performance. One or both parties may perform in such
     a way as to make definite that which was previously unclear.

Reg-Scan, Inc. v. Con-Way Transp. Services, Inc., 875 A.2d 332, (Pa.

Super. 2005) (internal citation omitted) (emphasis supplied).

     Further, we have explained:

     “A contract, implied in fact, is an actual contract which arises
     where the parties agree upon the obligations to be incurred, but
     their intention, instead of being expressed in words, is inferred
     from their acts in the light of the surrounding circumstances.
     Cameron v. Eynon, 332 Pa. 529, 3 A.2d 423 (1939).” Home
     Protection Building & Loan Association Case, 143 Pa. Super. 96,
     98, 17 A.2d 755, 756 (1941).         An implied contract is an
     agreement which legitimately can be inferred from the intention
     of the parties as evidenced by the circumstances and “the
     ordinary course of dealing and the common understanding of
     men.”      Hertzog v. Hertzog, 29 Pa. 465, 468 (1857).

                                    - 13 -
J-A23041-14


     “Generally, there is an implication of a promise to pay for
     valuable services rendered with the knowledge and
     approval of the recipient, in the absence of a showing to
     the contrary. A promise to pay the reasonable value of
     the service is implied where one performs for another,
     with the other's knowledge, a useful service of a
     character that is usually charged for, and the latter
     expresses no dissent or avails himself of the service. A
     promise to pay for services can, however, only be implied
     when they are rendered in such circumstances as
     authorized the party performing to entertain a reasonable
     expectation of their payment by the party benefited. The
     service or other benefit must not be given as a gratuity or
     without expectation of payment, and the person benefited
     must do something from which his promise to pay may be
     fairly inferred.” Home Protection Building & Loan Association
     Case, supra, 143 Pa. at 98–99, 17 A.2d at 756–57, citing 12
     Am.Jur., Contracts, § 5. See also: Irvine Estate, 372 Pa. 110,
     92 A.2d 544 (1952); Gibb's Estate, 266 Pa. 485, 110 A. 236
     (1920).    When a person requests another to perform
     services, it is ordinarily inferred that he intends to pay for
     them, unless the circumstances indicate otherwise.
     Restatement Restitution § 107(2) (1937). However, where the
     circumstances evidence that one's work effort has been
     voluntarily given to another, an intention to pay therefor cannot
     be inferred.

Martin v. Little, Brown and Co., 450 A.2d 984, 987 (Pa. Super. 1981)

(emphasis supplied).

     Instantly, we note that Stephan did not call any expert witnesses to

testify as to the reasonable value of the services performed by Appellant’s

electrician at Stephan’s home, on an emergency basis, on a Saturday

afternoon.   Moreover, Appellant’s prices are contained in the contract, so

there is no need to “impose a reasonable price based on the item’s market

value.” Reg-Scan, Inc., supra. To the extent Stephan seeks to disavow

the prices because he contends that they were added after the work was

                                   - 14 -
J-A23041-14



completed, the timing of the inclusion does not necessarily make the prices,

nor the parties’ contractual intent to have Appellant repair Stephan’s

electrical problem, ambiguous. This contract does not fail for indefiniteness.

Indeed, Stephan does not contest that he requested, wanted, and agreed, to

have Appellant repair his electrical problem that Saturday, and that he

agreed to incur at least $1,095 dollars to do so. We find that the record,

including Stephan’s own testimony, establishes that Appellant and Stephan

entered into an enforceable contract for the electrical repair, which was

completed by Appellant, such that Stephan was liable to Appellant in the

amount of $1,469. We therefore vacate the judgment in favor of Stephan.

      Judgment vacated. Jurisdiction relinquished.

      Judge Donohue joins the Opinion.

      Judge Musmanno filed a Dissenting Opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/19/2014




                                    - 15 -
