J-A08002-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRED DENIG, JR.,                       :     IN THE SUPERIOR COURT OF
                                       :          PENNSYLVANIA
                     Appellee          :
                                       :
           v.                          :
                                       :
501 GRANDVIEW, INC., A                 :
PENNSYLVANIA CORPORATION, AND          :
501 GRANDVIEW ASSOCIATES, LP, A        :
PENNSYLVANIA LIMITED                   :
PARTNERSHIP,                           :
                                       :
                     Appellants        :     No. 1081 WDA 2013


            Appeal from the Judgment Entered June 6, 2013,
           In the Court of Common Pleas of Allegheny County,
                   Civil Division, at No. G.D. 09-21205.


BEFORE: SHOGAN, OLSON and WECHT, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED AUGUST 22, 2014

     501 Grandview, Inc. and 501 Grandview Associates, LP (collectively,



                       -jury trial. We affirm.

     Denig performed contract work as an architect for Grandview.

Pursuant to a contract dated March 28, 2006, Denig provided drawings and

supervisory services for the construction of a five-story, eleven-unit,




prepare revisions, as well as additional drawings and plans.      Denig
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performed some of the additional work for which he was paid; he performed

other portions of the additional work for which he was not paid. Eventually,

Grandview and Denig ended their relationship. Grandview claimed the last

day Denig furnished services under the contract was April 30, 2009. Denig

maintained his last performance of contract work was a site visit on May 18,



$9,000.00 for contract administration.



Lien Claim, 11/16/09, at Exhibit C. Damages were based, in part, on two

invoices:   one dated March 31, 2009, for unpaid work totaling $8,710.00

(Trial Exhibit 30), and one dated April 30, 2009, for contract administration

services totaling $9,000.00 (Trial Exhibit 31).       According to an AIA

application certificate (Trial Exhibit 32), Denig approved payment by the

bank and agreed that construction had reached 35% as of April 30, 2009.

However, through testimony at trial, Denig claimed an additional $1,000.00

for contract administration performed in April 2009 and disputed that the

Project was only 35% complete as of April 30, 2009. Denig further testified

that the Project was almost 50% complete at the time of his termination.



March 18, 2013, for $17,710.00. Grandview filed post-trial motions, which

the trial court denied.   Order, 6/3/13.    Judgment was entered on June 6,




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2013.        Grandview timely appealed.    Both Grandview and the trial court

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

        On     appeal,   Grandview   presents   the   following   issues   for    our

consideration:

        1.    DID THE TRIAL COURT ERR IN FINDING THAT [DENIG] HAD
              COMPLETED 50% OF HIS CONTRACTED WORK?

        2.    DID THE TRIAL [COURT] DISREGARD CLEAR LAW AND
              EVIDENCE THAT [DENIG] HAD FAILED TO MEET THE
              CONDITIONS PRECEDENT IN THE WRITTEN AGREEMENT
              BETWEEN THE PARTIES?
                           1



        Initially, we no

brief differ from those raised in its Rule 1925(b) statement.                    Upon

examination of the various issues, however, we conclude that the questions

presented on appeal are fairly subsumed in the third error raised in




1

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

violates Rule 2119(a) in that it contains two questions but only one
argument section. Nonetheless, because this violation does not hamper our

Grandview attempts to argue in its brief that the trial court improperly
awarded damages for extra work beyond the scope of the contract. We
agree with Denig that Grandview has waived this issue by failing to include it
in its Statement of Questions Involved. See
will be considered unless it is stated in the statement of questions involved



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presented are inter-related, we shall address them in tandem.

      Here, the trial court sat as the finder of fact. Appellate review in non-

jury cases implicates the following general principles:

            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.


            originating from a non-

            duty to determine if the trial court correctly applied


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

Super. 2009) (quoting Wilson v. Transp. Ins. Co., 889 A.2d 563, 568 (Pa.

Super. 2005) (citations omitted)).

      In the case at hand, we view the evidence in the light most favorable

to Denig, the verdict winner. Stratford v. Boland, 452 A.2d 824, 826 (Pa.

Super. 1982) (citation omitted).      Moreover, we will not disturb the trial

                                      See Atlantic LB, Inc. v. Vrbicek, 905



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of credibility and weight accorded the evidence at trial, we will not substitute




                                   nt of all debts due by the owner to the

contractor or by the contractor to any of his subcontractors for labor or

materials furnished in the erection or construction, or the alteration or repair

                                                                 s definition of



implied, in addition to the preparation of drawings, specifications and

contract documents also superintends or supervises any such erection,

construction, alteration

      We have explained that:


      lien to amounts owed for labor and materials only. The

      and materials
      allowing the contractor to obtain a lien interest in the property
                  Matternas v. Stehman, 434 Pa.Super. 255, 642
      A.2d 1120, 1124 (1994).


      unliquidated damages for breach of contract. Alan Porter Lee,
      Inc. v. Du-Rite Products Co., 366 Pa. 548, 79 A.2d 218

      to settle the contractual obligations of the parties. Matternas,
      supra.     See also    TCI Const. Corp. v. Gangitano, 403
      Pa.Super. 621, 589 A.2d 1135, 1137 (1991) (housing and


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J-A08002-14



      feeding of employees, in addition to costs of equipment, labor
      and materials, were costs that were incurred solely for the
      particular project and were necessary for the work to go forward

      not an attempt to recover unliquidated damages for breach of
      contract); Halowich v. Amminiti, 190 Pa.Super. 314, 154 A.2d
                                          stained only for work done
      or materials furnished and not for unliquidated damages for
      breach of contract).


      remedy in favor of a unique class of creditors and the liens are
      thus generally reviewed with a strict construction of the statute
      that created them. Sampson-Miller Assoc. Companies v.
      Landmark Realty Co., 224 Pa.Super. 25, 303 A.2d 43 (1973).

      be resolved in favor of a strict, narrow construction. Denlinger
      v. Agresta, 714 A.2d 1048 (Pa.Super.1998).

Artsmith Development Group, Inc. v. Updegraff, 868 A.2d 495, 496

497 (Pa. Super. 2005).

      Grandview challenges the award of contract administration fees

totaling $10,000.00 to Denig. Grandview argues that 50% completion of the

Project was a condition precedent to Denig receiving one-half of his contract

administration fees. According to Grandview, because Denig submitted an

application certificate for payment (Trial Exhibit 32) that indicated the

Project was 35% complete as of April 30, 2009, he did not fulfill the

condition precedent and, consequently, was not entitled to payment for



complains, the trial court erred in finding that Denig was entitled to contract




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      In response, Denig argues that he completed contract administration

services valued at $10,000.00, which he was entitled to receive from

Grandvie

administration provision refers to when Denig would bill for those fees; it

was not a condition precedent to receipt of the contract administration fees.

Id. at 7.

      The contract language regarding contract administration appears in

the context of billing for fees:

      The fee for our services is One Hundred Fifteen Thousand Dollars
      ($115,000.). Prints will be billed separately at cost, however we
      will provide you with two sets of prints at each stage of the
      design work at no cost. Building permits and other inspect fees
      are not included in our fee. Fees are due within fourteen
      (14) days of invoice and will be billed as follows:

                   $8,000.00 initial payment

                   $25,000.00 for the design phase (architectural, and
                   structural, basic MEP, with outline specifications)

                   $53,000.00 for the contract documents phase

                   $6,000.00 for the bidding/negotiation phase

                   $23,000.00 for contract administration, half at
                   50% completion and half at completion of
                   construction.

Preliminary Objections, 12/17/09, at Exhibit F (emphasis supplied).



disagree with Grandview that 50% completion of the Project was necessary

for Denig to secure payment for contract administration he completed as of



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J-A08002-14




intended to settle the contractual obligations of the parties, but to secure

payment due from Grandview for contracted work that Denig completed.

Furthermore, the trial court found, and the record supports, that adequate

work    had   been   performed    to   justify   the   $10,000.00   for   contract

administration services.

       The trial court addressed the topics of contract administration and

completed work as follows:

       I
       architect for the [P]roject, he had performed work under the
       written contract for which he had not been paid in the amount of
       $17,710.00. While the testimony and evidence on this issue is
       complicated and at times confusing, [Grandview] does not
       appear to be vigorously challenging this substantive contention.
       Rather, [Grandview] appears to challenge only whether an
       obligation to pay this amount had been triggered under the
       terms of the original co
       lien claim at this time. [Grandview] relies upon terms and
       conditions in the written contract which indicated that certain
       lump sum payments are to be made to [Denig] upon the
       completion of certain percentages of work within certain

       for payment for contract administration work the contract states

       administration, half at 50 percent completion and half at

       documents including representations by [Denig] indicating that
       the [P]roject at or about the time of his termination was
       approximately 35 percent complete.           These documents,
       however, do not constitute the entire universe of evidence with
       respect to the question of the percentage of completion of any
       particular category of work. [Denig] himself testified at trial that
       notwithstanding representations and documentation generated
       pursuant to the contract, he believed that adequate work had



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      been completed on the written contract as to specific categories
      of work sufficient to trigger payment obligations in the total
      amount of $17,710.00. While the Court is cognizant of the fact
      that there exists a material factual dispute as to this finding, the

      capable of supporting the relief being sought as to this issue and
      concludes that [Denig] has met his burden with respect to this
      contention. Accordingly, I find that the evidence supports the
      factual finding that at the time of his termination [Denig] was
      owed $17,710.00 for work completed under the original written
      contract with [Grandview]. (Again, as noted above, without
      respect for any available counterclaims or setoffs that
      [Grandview] may assert in subsequent proceedings).

Trial Court Opinion, 7/18/13, at 2 3.

      Given the record before us and our deferential standard of review, we

discern no abuse of discretion or legal error in the tri

that Denig was entitled to $10,000.00 for contract administration services.



[Grandview] to [Denig] . . . for labor or materials furnished in the erection or



§ 1301; Stratford, 452 A.2d at 825.           Denig testified and presented

documentary evidence that he had performed $10,000.00 worth of contract

administration services as of April 2009. N.T., 3/8/13, at 51 54, 129 131,

136 137; Trial Exhibit 31 (4/30/09 Invoice).      The trial court was free to



$10,000.00 was due by Grandview to Denig for contract administration

services comple




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credibility determination. Atlantic LB, Inc.

contrary arguments do not warrant relief.

     Judgment affirmed.

     WECHT, J., files a Concurring Memorandum.

     OLSON, J., Concurs in the Result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/22/2014




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