J-A18021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BEECHER’S AUTO SALVAGE                             IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                        Appellee

                   v.

CONSERVIT, INC.

                        Appellant                     No. 2047 MDA 2014


          Appeal from the Judgment Entered November 26, 2014
            In the Court of Common Pleas of Franklin County
                     Civil Division at No: 2010-01074


BEFORE: FORD ELLIOTT, P.J.E., STABILE, and MUSMANNO, J.J.

MEMORANDUM BY STABILE, J.:                          FILED OCTOBER 29, 2015

     Appellant, Conservit, Inc., appeals from the November 26, 2014

judgment entered in favor of Appellee Beecher’s Auto Salvage. We affirm.

     The trial court recited the relevant facts:

           [Appellee] operates an automobile and truck salvage
     business in Franklin County, Pennsylvania. [Appellant] is a
     recycling center that buys and sells scrap metal. Specifically,
     [Appellant] takes in scrap metal, shreds it, converts it to frag,
     and sells the frag. [Appellee] alleges that in August 2008
     [Appellant] and [Appellee] entered into an agreement whereby
     [Appellant] would purchase scrap metal from [Appellee’s]
     inventory of automobiles and trucks at a purchase price of
     $13.50 per hundred pounds. On several occasions in January
     and February of 2009 [Appellant] loaded, crushed and removed
     scrap metal from [Appellee’s] lot. On each occasion [Appellant]
     issued a ticket indicating the date and the amount of the metal
     removed. The total amount of metal removed from [Appellee’s]
     lot was 1,252,630 pounds. [Appellee] maintains that at the
     agreed upon price of $13.50 per hundred pounds a total of
     $169,105.05 was due to [Appellee]. To date [Appellant] has
J-A18021-15


       paid [Appellee] $110,000. Therefore, [Appellee] is seeking the
       difference of $59,105.05.

Trial Court Opinion, 9/4/14, at 1-2.

       Appellee commenced this action on March 18, 2010 with a complaint

alleging breach of contract, promissory estoppel and unjust enrichment. The

trial court overruled Appellant’s preliminary objections and, after the

pleadings closed, denied Appellee’s motion for summary judgment. Prior to

trial, Appellee filed a motion in limine seeking to preclude Appellant from

contradicting judicial admissions Appellant believed Appellee made in its

pleadings. The trial court denied that motion on April 9, 2014. The parties

proceeded to a bench trial on May 6 and 7, 2014. The trial court entered a

verdict in Appellee’s favor on September 4, 2014. Appellant filed a timely

post-trial motion, which the trial court denied on November 14, 2014. On

November 26, 2014, the trial court entered judgment1 in favor of Appellee in

the amount $59,105.05. This timely appeal followed.

       Appellant raises five assertions of trial court error:


____________________________________________


1
    Appellant purportedly appealed from the order denying its post-trial
motion. The appealable final order is the judgment. See Fanning v.
Davne, 795 A.2d 388, 391 (Pa. Super. 2002) (“An appeal from an order
denying post-trial motions is interlocutory. An appeal to this Court can only
lie from judgments entered subsequent to the trial court's disposition of
post-verdict motions, not from the order denying post-trial motions.”),
appeal denied, 825 A.2d 1261 (Pa. 2003). Since the verdict was reduced to
judgment on November 26, 2014, we will treat this as an appeal from the
judgment. We have amended the caption accordingly.



                                           -2-
J-A18021-15


            1. Did the trial court commit an error of law and abuse its
               discretion by concluding that the parties’ alleged oral
               contract was outside of the applicable statute of frauds
               and by upholding the validity of Appellee’s breach of
               oral contract claim against Appellant?

            2. Did the trial court commit an error of law and abuse of
               discretion by failing to conclude that the pleadings filed
               in this matter by the Appellee served as a bar to any
               recovery by Appellee on its breach of oral contract
               claim?

            3. Did the trial court commit an error of law and abuse of
               discretion when it reached the conclusion that the
               parties had ‘An intent to set a price and that a price was
               agreed upon,’ when the trial record clearly does not
               support this finding?

            4. Did the trial court commit an error of law in its
               application of [13 Pa.C.S.A. § 2305(a)] to the facts of
               this case?

            5. Did the trial court commit an error of law and abuse of
               discretion by concluding in its September 4, 2014
               opinion that ‘[the parties’] conversation in November
               2008 was confirmation of the 2008 oral agreement,’ as
               said conclusion is against the weight of the direct
               evidence in the record, and is further in direct
               contradiction to the judicial admissions set forth in the
               Appellee’s pleadings filed in this matter?

Appellant’s Brief at 6.

      We conduct our review as follows:

             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

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

Allegheny County Hous. Auth. v. Johnson, 908 A.2d 336, 340 (Pa.

Super. 2006) (quotation marks omitted).

     Appellant first argues that the applicable statute of frauds bars

enforcement of the alleged agreement because the parties never reduced

the agreement to writing. Appellant also argues that the trial court erred in

finding that the agreement falls outside the statute of frauds based on

Appellant’s acceptance of and payment for Appellee’s scrap metal.

     The applicable statute of frauds is set forth in Pennsylvania’s Uniform

Commercial Code:

           (a) General rule.--Except as otherwise provided in this
     section a contract for the sale of goods for the price of $500 or
     more is not enforceable by way of action or defense unless there
     is some writing sufficient to indicate that a contract for sale has
     been made between the parties and signed by the party against
     whom enforcement is sought or by his authorized agent or
     broker.    A writing is not insufficient because it omits or
     incorrectly states a term agreed upon but the contract is not
     enforceable under this subsection beyond the quantity of goods
     shown in such writing.

13 Pa.C.S.A. § 2201(a).

     Section 2201(c) provides for the enforceability, in some circumstances,

of contracts that do not comply with § 2201(a):

          (c) Enforceability of contracts not satisfying general
     requirements.--A contract which does not satisfy the



                                    -4-
J-A18021-15


     requirements of subsection (a) but which is valid in other
     respects is enforceable:

                              [*    *     *]

           (3) with respect to goods for which payment has been
     made and accepted or which have been received and accepted
     (section 2606).

13 Pa.C.S.A. § 2201(c)(3).

     Section 2606, in turn, specifies actions that constitute acceptance of

goods:

          (a) General rule.--Acceptance of goods occurs when the
     buyer:

            (1) after a reasonable opportunity to inspect the goods
     signifies to the seller that the goods are conforming or that he
     will take or retain them in spite of their nonconformity;

          (2) fails to make an effective rejection (section 2602(a)),
     but such acceptance does not occur until the buyer has had a
     reasonable opportunity to inspect them; or

            (3) does any act inconsistent with the ownership of the
     seller; but if such act is wrongful as against the seller it is an
     acceptance only if ratified by him.

           (b) Part of commercial unit.--Acceptance of a part of
     any commercial unit is acceptance of that entire unit.

13 Pa.C.S.A. § 2606. Appellant relies in particular on paragraph one of the

comment to § 2606:

           1. Under this Article ‘acceptance’ as applied to goods
     means that the buyer, pursuant to the contract, takes particular
     goods which have been appropriated to the contract as his own,
     whether or not he is obligated to do so, and whether he does so
     by words, action, or silence when it is time to speak. If the
     goods conform to the contract, acceptance amounts only to the
     performance by the buyer of one part of his legal obligation.



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J-A18021-15


13 Pa.C.S.A. § 2606, comment. Appellant emphasizes the use of the word

“contract” three times within the comment. Appellant’s Brief at 15.

      As we understand Appellant’s argument, the trial court erred in relying

on § 2201(c)(3) to determine that the parties’ agreement falls outside of the

statute of frauds because § 2201(c)(3), with its incorporation of § 2606,

applies only where the parties have formed a valid oral contract. Appellant

argues the parties did not form a valid oral contract because the record

contains no evidence the parties agreed on the total volume of scrap metal

Appellant would purchase from Appellee and no evidence of an agreed upon

price per unit. Appellant’s Brief at 16. We will address these issues below,

in response to Appellant’s remaining assertions of error.

      For present purposes, we need only assess the trial court’s decision

that the statute of frauds does not apply in this case because the parties

exchanged goods for money.      Appellant does not dispute that it removed

more than one million pounds of scrap metal from Appellee’s property and

paid Appellee $110,000.00 in exchange.         Partial payment is a reliable

indicator of the existence of a contract and sufficient to remove the bar of

the statute of frauds.   See W.I. Snyder Corp. v. Caracciolo, 541 A.2d

775, 779 (Pa. Super. 1988).      The trial court did not err in finding that




                                    -6-
J-A18021-15


Appellant’s payment2 for scrap metal sufficient to remove the bar of the

statute of frauds under § 2201(c)(3).          Appellant’s first argument does not

merit relief.

       Next, Appellant argues that the trial court’s findings are at odds with

binding judicial admissions Appellee made in its pleadings. Appellee alleged

in its complaint that the parties formed an oral contract in November of

2008 and that the contract was silent on the total volume of scrap metal

involved or the total purchase price.            Appellee’s Amended Complaint,

5/6/10, at ¶¶ 5-6. Prior to trial, Appellant filed a motion in limine to prevent

Appellee from introducing evidence contrary to these admissions. The trial

court denied Appellant’s motion, and at trial Appellee introduced evidence of

an agreement in August, rather than November, of 2008. Appellant believes

the trial court erred because its verdict rests on findings inconsistent with

Appellee’s binding judicial admissions.

       This Court has addressed judicial admissions as follows:

             Statements of fact by one party in pleadings, stipulations,
       testimony, and the like, made for that party’s benefit, are
       termed judicial admissions and are binding on the party. Judicial
       admissions are deemed true and cannot be contradicted by the
       admitting party.... Such admissions are considered conclusive in
       the cause of action in which they are made—and any appeals
       thereof ...—and the opposing party need not offer further
       evidence to prove the fact admitted.

____________________________________________


2
  The parties dispute whether Appellant’s payment constitutes partial or full
payment. That distinction does not alter the statute of frauds analysis.



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J-A18021-15


            For an averment to qualify as a judicial admission, it must
     be a clear and unequivocal admission of fact.               Judicial
     admissions are limited in scope to factual matters otherwise
     requiring evidentiary proof, and are exclusive of legal theories
     and conclusions of law. The fact must have been unequivocally
     admitted and not be merely one interpretation of the statement
     that is purported to be a judicial admission. An admission is not
     conclusively binding when the statement is indeterminate,
     inconsistent, or ambiguous.         When there is uncertainty
     surrounding a conceded fact, it is the role of the judge or jury as
     fact finder to determine which facts have been adequately
     proved and which must be rejected.

Cogley v. Duncan, 32 A.3d 1288, 1292 (Pa. Super. 2011) (quoting John B.

Conomos, Inc. v. Sun Co., 831 A.2d 696, 712-13 (Pa. Super. 2003),

appeal denied, 845 A.2d 818 (Pa. 2004)).

     The averments in question read as follows:

           5.   In about late November, 2008, [Appellant] orally
     agreed with [Appellee] at [Appellee’s] above-stated place of
     business (hereinafter referred to as [Appellee’s] ‘Lot’), that
     [Appellant] would purchase scrap metal from [Appellee’s]
     inventory of automobiles and trucks at a purchase price of
     $13.50 per hundred pound (hereinafter referred to as the
     ‘Agreement’).

           6.    At the time of the Agreement, [Appellee] and
     [Appellant] did not discuss the total amount of pounds of scrap
     metal that [Appellant] would purchase from [Appellee], or the
     total price that [Appellant] would pay to [Appellee], or what
     specific scrap metal [Appellant] would select for purchase, or
     how many truckloads [Appellant] would purchase, or how many
     times [Appellant] would come to the Lot.

Appellee’s Amended Complaint, 5/6/10, at ¶¶ 5-6.

     Ultimately, the trial court found the parties entered into an oral

agreement.    The trial court reasoned that “about late November” per

paragraph five of the amended complaint was simply an estimate that was


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J-A18021-15


broad enough to include August of 2008. We affirm the court’s conclusion,

albeit for different reasons.3        Paragraph five of the amended complaint

contains two allegations of fact pertinent to our analysis of Appellant’s

judicial admissions argument—(1) that Appellant agreed to pay $13.50 per

hundred pounds of scrap, and (2) the agreement occurred in “about late

November” of 2008.         Appellee’s Amended Complaint, 5/6/10, at ¶ 5.          In

discovery and during trial, Gina Myers, the president of Beecher’s Auto

Salvage, testified that her November 2008 conversation with Bret Wollaston,

Appellant’s    vice   president    for   business   development,   was   merely   a

confirmation of a deal the parties reached in August of 2008.4            The trial

court credited Myers’ testimony and found that the November 2008

agreement was simply a confirmation of an earlier agreement.

       We do not believe the allegations in Paragraph 5 of the Amended

Complaint are judicial admissions that barred Myers’ account of the August

2008 conversation. First, Myers’ account of the price term did not conflict

with the complaint.       She testified consistently that the parties agreed to

$13.50 per one hundred pounds. Second, concerning the timing, we do not

believe paragraph 5 of the amended complaint forecloses the possibility that

____________________________________________


3
  We may affirm the trial court’s decision on any valid basis. Plasticert,
Inc. v. Westfield Ins. Co., 923 A.2d 489, 492 (Pa. Super. 2007).
4
    Myers’ testimony in discovery prompted Appellant’s motion in limine.




                                           -9-
J-A18021-15


the November 2008 agreement was a confirmation of an earlier agreement.5

Myers did not attempt to retract the allegation in the complaint. Rather, she

testified, consistently with paragraph 5, that Wollaston assented to the

$13.50 price term in November of 2008. N.T. Trial, 5/6/14, at 20-21, 99-

100.

       Likewise, we do not believe Myers offered any testimony to contradict

the allegations in paragraph 6 of the amended complaint. Rather, paragraph

6 was simply an accurate description of trade usage in the scrap industry, as

the trial court found:

             The contract is further supported by the usage of trade
       within the scrap metal industry. All of the witnesses agreed that
       businesses within the industry do not use written contracts. A
       price is agreed upon, the scrap is hauled away, at some point it
       is weighed, and the price is paid. Here, while it may be in
       dispute now, a price was agreed upon; over 1 million pounds of
       scrap metal were hauled away from [Appellee] by [Appellant];
       and [Appellant] paid [Appellee] over the course of several
       months. These facts are consistent with usage of trade within
       the industry.

Trial Court Opinion, 9/4/14, at 10-11; see also 13 Pa.C.S.A. § 1303(c).6

Even if we assume the allegations in paragraph 6 constitute binding judicial


____________________________________________


5
   As a matter of law, the timing is of no significance, as § 2204(b) of the
UCC provides that “[a]n agreement sufficient to constitute a contract for sale
may be found even though the moment of its making is undetermined.” 13
Pa.C.S.A. § 2204(b).
6
    Section 1303(c) provides:

(Footnote Continued Next Page)


                                          - 10 -
J-A18021-15


admissions, Appellant cannot obtain relief because Appellee’s evidence at

trial was consistent with those allegations.

      In summary, Appellant seeks with its judicial admissions argument to

undermine the record evidence concerning the formation of the parties’

agreement—particularly the alleged August 2008 conversation between

Myers and Wollaston—and thereby persuade this Court to hold that the trial

court erred in finding an agreement on the $13.50 per one hundred pound

price term.     Appellant believes the evidence simply cannot support a

conclusion that it agreed to that price term given the state of the scrap

market in November of 2008. For the reasons described above, we do not

believe Appellant’s judicial admissions argument merits any relief, as

Appellee did not contradict the allegations in its complaint at trial.    For

reasons described below, we believe the trial court’s findings rested on its

credibility determinations and its assessment of the objective data regarding

the amounts of money and scrap metal that changed hands. Ultimately, we



                       _______________________
(Footnote Continued)

            A ‘usage of trade’ is any practice or method of dealing
      having such regularity of observance in a place, vocation or
      trade as to justify an expectation that it will be observed with
      respect to the transaction in question. The existence and scope
      of such a usage must be proved as fact. If it is established that
      such a usage is embodied in a trade code or similar record, the
      interpretation of the record is a question of law.

13 Pa.C.S.A. § 1303(c).



                                           - 11 -
J-A18021-15


conclude that the governing standard of review does not permit this Court to

disturb the trial court’s findings in this case.

      In its third assertion of error, Appellant argues that the trial court

erred in finding that the parties agreed on a price of $13.50 per one hundred

pounds of scrap. Appellant argues that no evidence supports a conclusion

that it quoted Appellee a price of $13.50 per one hundred pounds in August

of 2008; that Appellant would not have quoted such a price because all of its

manpower was invested in another job in August and September of 2008;

that it is contrary to industry practice to quote a price for a job that does not

commence until more than four months later; and that Appellant would not

have agreed or reaffirmed an agreement to pay $13.50 per one hundred

pounds in November of 2008 because the scrap metal market crashed. In

essence, Appellant argues that the trial court’s findings lack competent

evidentiary support in the record.       See Allegheny County Hous. Auth.

908 A.2d at 340 (“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[.]”).

      We begin with a recitation of the trial court’s findings on this issue:

            There are three witnesses that testified to communications
      between the parties as to an agreement for [Appellee] to sell
      [Appellant] scrap metal: Ms. Myers and Mr. [Keith] Myers, the
      president and vice-president of [Appellee] respectively, and Mr.
      Wollaston[.]    Ms. Myers testified that in August 2008 at
      Beecher’s Mr. Wollaston agreed to buy scrap metal from
      [Appellee] at $13.50 per hundred pounds after Mr. Myers


                                       - 12 -
J-A18021-15


       explained to Mr. Wollaston that she needed to ‘clean her lot out.’
       Ms. Myers testified:

                      Q. What happened next then?

                    A.    Then I had a discussion with Bret
              [Wollaston] in August 2008, told him I had no room.
              I had to move the inventory.

                      Q.   Did Mr. Wollaston say anything at that
              time?

                    A. Yes. He told me that my price would be
              thirteen fifty at that time and that he did perceive
              the market may go up. I told him it did not matter
              to me. I was willing to accept the thirteen fifty. I
              just need to clean my lot out.

                   Q.    Was anyone else present during that
              conversation?

                      A. No.

                      Q. Where did that take place?

                      A. At Beecher’s Auto Salvage.

       [N.T. Trial, 5/6/14, at 17-18]. In relation to the quantity Ms.
       Myers indicated that Mr. Wollaston was to take prepared scrap
       metal at the bottom of the field at Beecher’s, weigh it, and pay
       for the amount taken.[7] Ms. Myers’ version of the agreement
       was that Mr. Wollaston agreed to buy scrap metal for $13.50 per
       hundred pounds. Ms. Myers further testified that Mr. Wollaston
       confirmed the price of $13.50 per hundred pounds in November
       of 2008 and Mr. Myers explained that he heard the confirmation
       of the price as well.
____________________________________________


7
   Given the practice of removing, weighing and then paying for scrap metal,
it makes sense that the parties did not agree on the total poundage. The
poundage could not be determined until Appellant weighed the scrap it
removed from Appellee’s yard. The absence of any agreement on total
poundage does not undermine the trial court’s finding that the parties
entered an enforceable oral agreement.



                                          - 13 -
J-A18021-15


            Mr. Wollaston’s version of the agreement is much different.
      He claims that no talks as to any agreement between himself
      and Ms. Myers took place in August 2008. He does however
      allege that he and Ms. Myers had a conversation at Beecher’s in
      late November 2008.

                   [S]he was telling me she was full, needed to
            get something done. We talked. I told her the
            market crashed, not much I could do, and she said,
            well, ou [sic] know, I wanted to know—the only thing
            I can do for you, I made her an offer that we would
            come in and crush. We made a business decision to
            hold our scrap until the market went back up to
            $300 [per] ton.

                   Our business decided we couldn’t sell for less
            than that. We had too much money in our inventory
            and I said whatever we do crushing at, that number,
            that’s what we would settle on, but if the market
            went up to four fifty or four hundred then, yea, she
            would benefit from that as well or five hundred or
            wherever it ended up, she would benefit as well, but
            that was the only conversation we had, and we could
            have moved in at any time after September because
            we had no work at all. Our guys were sitting after
            we got the job down from Ernie’s, so we—it was th
            [sic] end of November so Thanksgiving so
            Thanksgiving, Christmas came around, so we
            decided we would just go in in January and it didn’t
            really matter when we went in because there was no
            determined price for me to have to worry about what
            I was going to have to sell it for to take a loss or not
            …

      [N.T. Trial, 5/7/14, at 142-43].     Mr. Wollaston essentially
      asserted that the agreement between him and Ms. Myers was
      that he would crush and haul away the scrap metal at Beecher’s
      according to what Ms. Myers said he could take and hold onto it
      until such a time that the market reached at least $300 per ton
      and at that point he would pay Beecher’s $7.50 per hundred
      pounds.

Trial Court Opinion, 9/4/14, at 7-9.



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J-A18021-15


       The trial court found Mr. Wollaston’s version of the agreement not

credible:

              An agreement whereby one would turnover its goods only
       to wait in potential perpetuity for the market to perhaps rise to
       [a] certain level in order to receive payment for said goods is
       improbable. In this case [Appellee] would have had to agreed
       [sic] to permit [Appellant] to haul away 1,252,630 pounds of
       scrap metal and hold onto it without payment for an
       indeterminate period of time. Furthermore, [Appellant] paid
       [Appellee] $110,000 in several monthly payments from
       December 2008 to October 2009. If the agreement was for
       [Appellant] to hold the scrap metal until some future time when
       the market escalated to $300 per ton it is nonsensical that it
       would make payments to [Appellee] prior to that time. [. . .]
       Additionally [. . .] the payments calculated out to $9.096 per
       hundred pounds and Mr. Wollaston admitted that fact. When
       questioned about why [Appellant] paid [Appellee] $9.096 per
       hundred pounds he stated: “That is correct. We overpaid her.”
       [. . .] We find it hard to believe that a well-established company
       in the scrap metal industry would overpay for its purchases
       accidentally or purposefully for that matter. [. . .]

             It is also evident that the price [Appellant] paid to
       [Appellee] in August 2008 was $13.50 per hundred pounds.[8]
       Ms. Myers testified that she sold to [Appellant] on August 6,
       2008 and [Appellant] initially paid $12.50 per hundred pounds.
       After Ms. Myers observed the error she contracted [sic] Mr.
       Wollaston who paid her an adjustment check on August 19, 2008
       in the amount of $110 which brought the total payment per
       hundred pounds from the August 6, 2008 transaction to $13.50
       per hundred pounds.

Id. at 13-15 (record citations omitted).

       Appellant argues the record does not support the trial court’s findings

because both parties’ experts testified that Myers’ version of the agreement
____________________________________________


8
  Here the trial court is referencing August 2008 transactions between the
parties that were not part of the agreement in dispute in this lawsuit.



                                          - 15 -
J-A18021-15


is contrary to industry practice.   That is, it would be contrary to industry

practice for Appellant to agree in November on a price for scrap that

Appellee would not haul away until the following January.          Both expert

witnesses testified that prices are never set months in advance. Appellant

also asserts that it never would have agreed to a $13.50 price term in

November of 2008, given the prevailing market conditions at that time.

Likewise, Appellant asserts that the scrap it purchased for $13.50 per

hundred pounds in August of 2008 was prepared for shredding, whereas the

scrap it removed from Appellee’s lot in early 2009 was unprepared.

Unprepared scrap entails higher processing costs, according to Appellant.

        First, we observe that even if the trial court accepted the expert

testimony as to prevailing industry practices, the court remained free to find

that the parties did not act in accordance with industry practice in this case.

Gina Myers testified that the parties initially agreed on the price in August of

2008.     Wollaston testified that Appellant undertook a very large project

requiring all of its manpower in August and September of 2008. N.T. Trial,

5/7/14, at 140-41.     Thus, Appellant could not have commenced work in

removing scrap from Appellee’s lot until October at the earliest.      The trial

court was free to find that Wollaston agreed to honor the $13.50 per one-

hundred pound price term in November of 2008, despite the downturn in the

market.




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J-A18021-15


      Moreover, Appellant’s dealings with Appellee in this case are not

consistent with Wollaston’s assessment of the late-2008 scrap market crash.

Wollaston testified that Appellant was paying $3.50 per hundred pounds of

scrap when Appellant began crushing and removing scrap metal from

Appellee’s lot in January of 2009. N.T. Trial, 5/7/14, at 145. Despite that,

the record indicates that Appellant commenced payment to Appellee with a

$10,000.00 advance in December of 2008 and another $20,000.00 in early

2009 shortly after Appellant removed the scrap from Appellee’s lot.

Appellant’s total payment—$110,000.00 for 1,252,630 pounds of scrap—

computes to just over $9.00 per one hundred pounds.

      Appellant also argues that the scrap it bought from Appellee in August

of 2008 was more valuable because the scrap it purchased in August

required less processing.    That is, the August 2008 scrap metal was in a

“roll-off can” that Appellant periodically emptied, whereas the scrap subject

to the agreement in dispute consisted of automobiles that Appellant had to

crush and then remove from Appellee’s lot.      See Appellant’s Brief at 136;

N.T. Trial, 5/7/14, at 139-142. The trial court did not make specific findings

on the difference in kind or value, if any, of the scrap Appellant purchased in

August 2008 and the kinds it removed from Appellee’s lot in early 2009.

Implicit in the court’s verdict is that it rejected any such distinction.   The

record is not a model of clarity on the issue, and we have no basis upon

which to disturb the trial court’s findings.


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      In light of all the foregoing, we conclude that our standard of appellate

review precludes relief on Appellant’s third argument.          Witnesses for

Appellant and Appellee presented the trial court with conflicting evidence as

to the terms of the parties’ agreement.         The trial court credited the

testimony of Gina and Keith Myers and discredited that of Wollaston. The

trial court also relied on objective evidence indicating that Appellant paid

Appellee $13.50 for scrap in August of 2008. Viewing the evidence of record

in a light most favorable to Appellee, as verdict winner, we conclude that

competent evidence of record supports the trial court’s findings of fact.

      In its fourth assertion of error, Appellant argues the trial court

misapplied § 2305 of the Pennsylvania Uniform Commercial Code.              That

section, titled “Open Price Term,” provides in part:

      (a) General rule.--The parties if they so intend can conclude a
      contract for sale even though the price is not settled. In such a
      case the price is a reasonable price at the time for delivery if:

            (1) nothing is said as to price;

            (2) the price is left to be agreed by the parties and they
                fail to agree; or

            (3) the price is to be fixed in terms of some agreed market
                or other standard as set or recorded by a third person
                or agency and it is not so set or recorded.

13 Pa.C.S.A. § 2305.

      Appellant’s argument depends entirely upon its assertion that the

parties did not agree to a price term. We have already concluded that the

trial court did not err in finding that the parties agreed to a price term of


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$13.50 per one hundred pounds of scrap. As such, we have no occasion to

address Appellant’s open price term argument under § 2305.

      Finally, Appellant argues that the trial court erred in finding that the

parties’ November 2008 conversation was a confirmation of the August 2008

agreement. Appellant believes the trial court erred in creating a contract for

the parties rather than simply enforcing the ascertainable terms of the

parties’ agreement. The underpinnings of this argument are essentially the

same as those offered in support Appellant’s third assertion of error, and the

argument fails for reasons we have already explained above. In short, the

record supports the trial court’s finding on the price term, and the record

does not support a conclusion that the trial court created or reformed a

contract on behalf of the parties.

      For all of the foregoing reasons, we conclude that Appellant’s

assertions of error do not merit relief. We therefore affirm the judgment.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2015




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