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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 on June 6, 2013
             In the Court of Common Pleas of Allegheny County
                     Civil Division at No.: G.D. 09-21205


BEFORE: SHOGAN, J., OLSON, J., and WECHT, J.

CONCURRING MEMORANDUM BY WECHT, J.:                 FILED AUGUST 22, 2014



award   to   Fred   Denig,   Jr.,   for   superintendence   services   rendered.

Furthermore, I join the ma

majority, I would not deem waived the challenge of 501 Grandview, Inc.



that award on the merits. I write separately to explain why.

     As noted by the majority, Grandview, in its questions presented,




recover proportionately. Maj. Mem. at 3 (quoting Brief for Grandview at 3).

It does not, however, set off a question identifying any challenge to the
J-A08002-14



extra fees imposed by the trial court.    On this basis alone, the majority

deems any such issue waived. Maj. Mem. at 3 n.1.

      Pennsylvania Rule of Appellate      Procedure 2101 calls for strict

                                                                           ...

shall conform in all material respects with the requirements of these rules as

nearly as the circumstances of the particular case will admit, otherwise they

may be suppressed, and, if the defects are in the brief . . . and are

substantial

Pa.R.A.P. 2101. Rule 2116 provides as follows:

      The statement of the questions involved must state concisely the
      issues to be resolved, expressed in the terms and circumstances
      of the case but without unnecessary detail. The statement will
      be deemed to include every subsidiary question fairly comprised
      therein. No question will be considered unless it is stated in the
      statement of questions involved or is fairly suggested thereby.

Pa.R.A.P. 2116(a).

      It cannot be disputed that Grandview failed to satisfy this rule with

                                                                            n




our precedent and that of our sister Commonwealth Court teaches that we

may overlook violations of Rule 2116 when they do not impede our review in

any material way

See, e.g., Savoy v. Savoy, 641 A.2d 596, 598 (Pa. Super.

                                                                            ur

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Wesleyville Borough v. Erie County Bd. of Assessment Appeals, 676

A.2d 298, 301 (Pa. Cmwlth.

and addressed arguments [that] have been set forth in the argument portion



Pa.R.A.P.           see also Pa.R.A.P.

shall be liberally construed to secure the just, speedy and inexpensive

determ

                                           . . . of any of these rules . . . on its

                            Commonwealth v. Wheaton, 598 A.2d 1017

(Pa. Super. 1991), this Court declined

failure to satisfy Rule 2116, because the issue had been raised before the

                                                         See id. at 1018 n.1.

                                                                       n its post-

trial motions.   Grandview then identified this same issue as grounds for

appeal in its Rule 1925(b) concise statement of errors complained of on

appeal, which is intended to apprise the trial court of its alleged error,

enabling the trial court to provide this Court with a Rule 1925(a) opinion that

effectively explains the reasons for the challenged ruling.      See Jiricko v.

Geico Ins. Co., 947 A.2d 206, 210 (Pa. Super.                                 ...

allows the trial court to identify and focus on those issues the parties plan to



not squarely address the challenged items as a discrete issue, that omission

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J-A08002-14




statemen



Complained of on Appeal at 1.            Indeed, Grandview identified therein the

charges that it deemed objectionable.            Id. at 1-2 ¶2.   Finally, Grandview

briefed at length the appropriateness of imposing these charges in a

                                  See Brief for Grandview at 8-12.1




waiver for such an omission. The issue has been raised and argued at every

stage of the proceedings, just as required by the applicable rules of

procedure. Nonetheless, I would affirm.

       The invoice identifying the charges in question amounted to $8,710 of

the $17,710 verdict awarded to Denig, and were allocated as follows:

       Bidding/Negotation                                   $6,000

       Drawings for possible adjacent Garage
            FD 12 hrs @ $100/hr                             $1,200
____________________________________________


1

regard to the challenged items, asserting only that the omission of that issue

of appeal. See Brief for Denig at 5. Inasmuch as this Court has the power
to overlook waiver, and has done so many times in analogous situations,




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J-A08002-14


       Drawings for changed Penthouse and single
       unit on third through fifth floors
             FD 5 hours @ $100/hr                     $500
             FD 8 hours @ $70/hr                      $560

       Drawings for additional front door
            FD 4.5 hours @ $100/hr                    $450

Trial Exhibit 30. Grandview does not contest the recoverability of $6,000 for

bidding/negotiation or $1,200 for the garage drawings.         See Brief for

Grandview at 10

lien proceeding of the balance of the charges specified in the invoice,

concerning drawings for the penthouse and another unit, as well as for an

additional front door, charges that add up to $1,510. Id.2



                                                                   Id. Citing

Bennett v. Frederick R. Gerry Co., 117 A. 345 (Pa. 1922), Grandview

asserts correctly, if inartful

architect cannot bundle a claim for services for which he has no right to file



Grandview at 10; see Bennett, 117 A. at 346.        Grandview acknowledges

that, when an architect has supervisory responsibilities over a job, he may



____________________________________________


2
      The law is clear that what cannot be
proceeding may be sought in a contract claim, see Hoekstra v. Hoekstra,
87 Pa. Super. 15, 18 (Pa. Super. 1925), and such a parallel proceeding
evidently was commenced in connection with this dispute.



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that job.   See 49 P.S. §

utilizing

                            . . . who, by contract with the owner, express or

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

contract documents also superintends or supervises any such erection,

                                          cf. Hoekstra v. Hoekstra, 87 Pa.

Super. 15, 18 (Pa. Super.

and drawings in this proceeding only because of the fact that they are

incidental to and enhance his work of superintending and supervising the

actual construction . . .



Denig had specified supervisory responsibilities, the absence of any

obligation to continue in a supervisory capacity with respect to those items

precluded recovery of those charges in the instant action.

      While Grandview is correct regarding the overarching proposition that

work outside the scope of a construction contract, express or implied, is not



that the work in question herein was severable from the rest of this large

                                                   disputed supervisory role over

the bulk of the project in question. Grandview cites scant evidence to that

effect in its argument and cites only distinguishable case law. Our law is not

so   monolithic   as   to    preclude   recovery   for   items   added   after   the




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J-A08002-14



commencement of a construction project that it is sufficient merely to cite a

general proposition of law and be done with it.

      In B.N. Excavating, Inc., v. PBC Hollow-A, L.P. , 71 A.3d 274

(Pa. Super. 2013), this Court reaffirmed that the core proposition at work in



           connected                                             Id. at 282

(emphasis in original).   Because the degree to which the work at issue in



presented a question of fact, that determination belonged to the fact-finder,



objections. Id.

                                                  et in this case, to spend as

much time educating this Court as to why the items in question were



construction project as it spends educating this Court on the legal framework

against which the assessment is to be made.        However, it has failed to

establish any reason the fact-finder was not free to conclude that the items

in question were, in fact, connected to the larger job, which, like any large

construction job, was dynamic in its scope and its particulars as it

progressed, or that Denig had no supervisory role with respect to those




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items.    Accordingly, I would find that this argument is unavailing on its
                                                         3



       For the foregoing reasons, I concur fully in the result reached by the




                                                 the merits.




____________________________________________


3
       Grandview also contends that it paid $450 for the cost associated with

allegedly unrebutted testimony of Daniele Dipardo, a partner in Grandview,
that Denig was paid for this charge. Brief for Grandview at 12 (citing Notes
of Testimony, 3/8/2013, at 170-71).         While DiPardo did so testify,

the well-established proposition that the jury may reject even unrebutted
testimony. See Burke v. Kennedy, 133 A. 508, 510 (Pa.
be said, as a matter of law, that the [fact-finder] is bound to accept
evidence as true, although not contradicted by direct evidence. . . . A
witness, though unimpeached, may have such an interest in the question at

omitted)); see also Michultka v. Grapin, 340 A.2d 576, 579
(Pa. Super.                   -called rule that one is bound by the testimony
of his witness, unless the witness is impeached or his testimony
contradicted, today has little currency despite the fact that it is frequently

established precedent, it was incumbent on Grandview to present legal
argument in support of its claim. See Pa.R.A.P. 2119(a). Grandview having
failed to do so, I would find that this particular argument is waived.




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