J-A27026-16


                                  2017 PA Super 221

SYCAMORE RESTAURANT GROUP, LLC                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STAMPFI HARTKE ASSOCIATES, LLC

                            Appellant                 No. 2547 EDA 2015


                      Appeal from the Order May 21, 2015
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2011-34020


                                          *****

SYCAMORE RESTAURANT GROUP, LLC                    IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STAMPFI HARTKE ASSOCIATES, LLC

                            Appellant                 No. 2563 EDA 2015


                      Appeal from the Order May 21, 2015
              In the Court of Common Pleas of Montgomery County
                       Civil Division at No(s): 2011-34020


BEFORE: PANELLA, J., LAZARUS, J., and FITZGERALD, J.*

OPINION BY LAZARUS, J.:                                 FILED JULY 12, 2017




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-A27026-16



       Sycamore Restaurant Group, LLC (“Sycamore”), appeals from the

order, entered in the Court of Common Pleas of Montgomery County, which

granted construction delay damages in its favor in the amount of

$20,332.59.1 After careful review, we affirm.

       Sycamore initiated the instant action in December 2011, asserting

Stampfi breached an architectural and engineering services contract with

Sycamore for construction of a new restaurant. A non-jury trial was held on

May 14 and 15, 2015. The court’s decision, finding in favor of Sycamore in

the amount of $20,332.59, plus costs, was docketed on May 22, 2015.

Thereafter, Sycamore filed a post-trial motion on June 1, 2015,2 asserting

that the Court erred by failing to consider certain evidence and testimony in

____________________________________________


1
  Sycamore appeals on the basis that the damages award is inadequate.
Stampfi Hartke Associates, LLC (“Stampfi”), has filed a consolidated cross-
appeal in this matter, arguing that damages were awarded to Sycamore in
error. As discussed infra, Stampfi has waived all issues on appeal.
2
  We note that Sycamore timely served the motion on opposing counsel, but
the certificate of service indicates it failed to provide a copy of the motion to
the trial court at the same time. See Pa.R.C.P. 227.1(f) (“The party filing a
post-trial motion shall serve a copy promptly upon every other party to the
action and deliver a copy to the trial judge.”).             However, the court
considered the motion to be timely and Stampfi did not object. Accordingly,
we find the motion adequately preserved Sycamore’s issue raised on appeal.
See Watkins v. Watkins, 775 A.2d 841, 845 n.1 (Pa. Super. 2001)
(“Whenever a party files post-trial motions at a time when the court has
jurisdiction over the matter but outside the ten-day requirement of Pa.R.C.P.
227.1, the trial court’s decision to consider the motions should not be
subject to review unless the opposing party objects.” (quoting Mammoccio
v. 1818 Market Partnership, 734 A.2d 23, 27 (Pa. Super. 1999)).




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reaching its decision, and thus, the damages award is inadequate. Stampfi

filed a post-trial motion on July 1, 2015, asserting that the court erred in

awarding damages to Sycamore.3 The court denied both post-trial motions

on August 4, 2015, and entered judgment in favor of Sycamore on August

12, 2015.     Sycamore and Stampfi each filed timely notices of appeal and

court-ordered concise statements of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b).

       On appeal, Sycamore raises the following question for our review:

       Did the lower court commit legal error and/or abuse its
       discretion, by entering an inadequate verdict in favor of
       Sycamore, based solely on money damages of $20,332.59 for
       construction completion delay (for rent and construction loan
       interest associated with the extra time need[ed] to complete the
       unanticipated rock removal and dewatering), but excluding the
       credible and uncontroverted evidence of additional money
       damages for the $197,009.12 of costs actually incurred by
       Sycamore for [the] unanticipated rock removal and dewatering?

Brief for Appellant, at 3.


____________________________________________


3
   We note that Stampfi’s post-trial motion was untimely, since it was filed
more than 10 days after Sycamore filed its post-trial motion on June 1,
2015. See Pa.R.C.P. 227.1(c) (“If a party has filed a timely post-trial
motion, any other party may file a post-trial motion within ten days after the
filing of the first post-trial motion.”). Additionally, Sycamore objected to the
timeliness of Stampfi’s post-trial motion in its answer to the motion and at
argument. On this basis, the trial court found Stampfi’s post-trial motion did
not preserve its claims on appeal. We are constrained to agree. See
Kennel v. Thomas, 804 A.2d 667, 668 (Pa. Super. 2002) (where trial court
refused to address merits of appellant’s issues raised in untimely post-trial
motions, issues were waived and not preserved for purposes of appellate
review).



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       On February 17, 2016, the trial court issued its Rule 1925(a) opinion in

which it requested that this Court quash both parties’ appeals. Further, the

trial court declined to address the issue of damages on the basis that both

parties delayed in requesting that the trial notes be transcribed. 4 This could

be grounds for dismissal in our Court pursuant to Rule 1911; however, the

trial court did not file its Rule 1925(a) opinion until February 17, 2016, a


____________________________________________


4
   Pursuant to Pa.R.A.P. 1911, an appellant shall request and pay for any
necessary transcript in an appeal, and where a cross appeal has been taken,
the cross-appellant shares the duty to file and pay for necessary transcripts.
Pa.R.A.P. 1911(a), (b). The Pennsylvania Rules of Judicial Administration
specify that the request for a transcript in an appeal “shall be made part of
the notice of appeal.” Pa.R.J.A. 5000.5(b). Further, if an appellant “fails to
take the action required by . . . the Pennsylvania Rules of Judicial
Administration for the preparation of the transcript, the appellate court may
take such action as it deems appropriate, which may include dismissal of the
appeal.” Pa.R.A.P. 1911(d). Indeed, in cases where the appellant has failed
to request the trial transcript at any point during the pendency of the
appeal, this Court has found it appropriate to dismiss the matter. See
Smith v. Smith, 637 A.2d 622, 624 (Pa. Super. 1993) (appropriate to
quash appeal where appellant challenged order of support on grounds
necessitating review of hearing transcript but did not make transcript official
part of record); see also Gorniak v. Gorniak, 504 A.2d 1262, 1264 (Pa.
Super. 1986) (appeal properly dismissed where appellant failed to file order
for transcript of proceedings). Instantly, both parties failed to request the
trial transcript with their notices of appeal, which were filed in August 2015.
On September 5, 2015, counsel for Sycamore inquired about the cost to
have the trial proceedings transcribed. Counsel for both parties were
informed on September 18, 2015, of the required deposit of 50 percent of
the transcription costs as allowed by Pa.R.J.A. 5000.6. Stampfi’s counsel
ultimately paid the required deposit on January 28, 2016. The stenographer
completed the transcript and filed it on February 10, 2016. The trial court
correctly observes that the necessary deposit for the transcript was not paid
for 7 months after the filing of post-trial motions and 5 months after the
filing of the notices of appeal in this matter.



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J-A27026-16



week after the trial transcript was completed and filed.      Accordingly, we

determined the trial court could have reviewed the transcript and produced a

Rule 1925(a) opinion analyzing the merits of the issue raised on appeal and

addressing its determination of damages. Therefore, on January 14, 2016,

we remanded this case for the trial court to file a supplemental opinion

addressing Sycamore’s claim. On March 24, 2017, the trial court issued an

opinion on remand, finding Sycamore’s issue on appeal to be meritless. The

same issue now before us, we proceed with our review.

      Our standard in reviewing a court order entered after a bench trial is

limited: “[This Court] will reverse a court order . . . only if the decision is

based on an error of law or on factual findings that are unsupported by

evidence of record.” Agliori v. Metropolitan Life Ins. Co., 879 A.2d 315,

318, p.p. (Pa. Super. 2006) (internal citation omitted).

      Here, Sycamore avers the trial court erred where it did not admit

change request documents that Sycamore contends prove $197,009.12 in

additional damages. We disagree.

      “Admissibility of evidence depends on relevance and probative value.

Evidence is relevant if it logically tends to establish a material fact in the

case, tends to make a fact at issue more or less probable or supports a

reasonable inference or presumption regarding a material fact.”       Klein v.

Aronchick, 85 A.3d 487 (Pa. Super. 2014). The court my exclude relevant

evidence if its probative value is outweighed by a danger of unfair prejudice.

See Pa.R.E. 403.    “[Q]uestions regarding the admissibility or exclusion of

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J-A27026-16



evidence are within the sound discretion of the trial court and will not be

disturbed absent an abuse of discretion.” Spino v. John S. Tilley Ladder

Co., 671 A.3d 726, 734 (Pa. Super. 1997). However, “[a]n abuse of

discretion may not be found merely because an appellate court might have

reached a different conclusion, but requires a manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support so as to be

clearly erroneous.”      Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa.

2003).

       Furthermore, the proponent of evidence must satisfy the requirement

of authenticating or identifying an item of evidence by proving that the item

is what the proponent claims it is.            Pa.R.E. 901.   “A document may be

authenticated, as a condition precedent to admissibility, by direct proof

and/or by circumstantial evidence; proof of any circumstances which will

support a finding that the writing is genuine will suffice to authenticate the

writing.” Zuk v. Zuk, 55 A.3d 102, 111 (Pa. Super. 2012).

       First, we address Sycamore’s assertion that the change request

documents were admissible into evidence as modifications to the parties’

Construction Contract.5 This argument is unavailing.
____________________________________________


5
  Sycamore cites no authority in support of its argument that, contrary to
the contract’s plain language, the change request documents should be
viewed as change orders pursuant to the Construction Contract.        See
Childers v. Power Line Equip. Rentals, Inc., 681 A.2d 201, 211 (Pa.
Super. 1996) (issues identified on appeal but unsupported by citation to
proper authorities are deemed to have been abandoned).



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J-A27026-16



        In interpreting a contract, this Court need not defer to the conclusions

of the trial court and is free to draw its own inferences.6         Southwestern

Energy Production Co. v. Forest Resources, LLC, 83 A.3d 177 (Pa.

Super. 2015). In interpreting the language of a contract, courts attempt to

ascertain the intent of the parties and give it effect. LJL Transp., Inc. v.

Pilot Air Freight Corp., 962 A.2d. 639, 648 (Pa. 2009). When the words of

an agreement are clear and unambiguous, the court ascertains the intent of

the parties from the language used in the agreement, which it will give its

commonly accepted and plain meaning. Id. We must construe a contract

only as written and may not modify plain meaning under the guise of

interpretation. Southwestern Energy, 93 A.3d at 183.


        Paragraph 7.2.1 of the Construction Contract reads as follows:

        A Change Order is a written instrument prepared by the
        Architect and signed by the Owner, Contractor and Architect,
        stating their agreement upon all of the following:

              [1.]   change in the work[;]
              [2.]   the amount of the adjustment, if any, in the Contract
                     Sum; and
              [3.]   the extent of the adjustment, if any, in the Contract
                     Time.

General Conditions of the Contract for Construction, 4/3/08, at 23. Stampfi

agreed to provide Sycamore the following services: “architectural design,

documentation,       structural     engineering,   interior   design,   mechanical,

____________________________________________


6
    The trial court did not address this issue in its Rule 1925(a) opinion.



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J-A27026-16



electrical, plumbing drawings and construction administration.” Professional

Services Agreement, 8/13/07, at 2.

      Reading   the   plain   language   of   the   Construction   Contract   and

Professional Services Agreement together, we find the change request

documents are not modifications to the Construction Contract. See Huegel

v. Mifflin Const. Co., Inc., 796 A.2d 350, 354 (Pa. Super. 2002) (“Where

several instruments are made as a part of one transaction they will be read

together, and each will be construed with reference to the other; and this is

so although the instruments may have been executed at different times and

do not in terms refer to each other.”).        The plain language of the two

contracts reveals the intent of the parties was for the architect, Stampfi, not

the contractor, Designline, to prepare Change Orders.          Additionally, the

owner, contractor and architect are not signatories to the change request

documents proffered by Sycamore pursuant to the construction contract, nor

do they specify the adjustments in the contract time.

      Next, Sycamore argues that the trial court should have considered the

testimony of Sycamore’s sole witness, managing partner Robert Stein,

regarding the additional costs of rock removal and dewatering, even

assuming arguendo, it was proper for the trial court to rule that the change

request documents were inadmissible. At trial, Sycamore argued the change

request documents were admissible under two exceptions to the hearsay

rule: as a statement against interest of an unavailable witness, Pa.R.E.

804(b)(3), and as a business record, 803(6).         On remand, the trial court

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J-A27026-16



determined that the change request documents purporting to show rock

removal and dewatering costs were inadmissible pursuant to Pa.R.E. 804

and/or 803. We agree.7

       The hearsay exception for an unavailable declarant provides, in

relevant part:

       (a) Criteria for Being Unavailable. A declarant is considered
       to be unavailable as a witness if the declarant:

              (5) is absent from the trial or hearing and the statement’s
              proponent has not been able, by process or other
              reasonable means, to procure:

                     (B) the declarant’s attendance or testimony, in the
                     case of a hearsay exception under Rule 804(b)(2),
                     (3), or (4)

       (b) The Exceptions. The following are not excluded by the rule
       against hearsay if the declarant is unavailable as a witness:

              (3) Statement Against Interest. A statement that:

                     (A) a reasonable person in the declarant’s position
                     would have made only if the person believed it to be
                     true, because, when made, it was so contrary to
                     the declarant’s proprietary or pecuniary
                     interest or had so great a tendency to
                     invalidate    the    declarant’s  claim    against
                     someone else or to expose the declarant to civil
                     or criminal liability[.]




____________________________________________


7
  Sycamore does not raise these issues in their brief, however, we find these
particular issues are germane to our analysis of whether the trial court erred
in not considering Stein’s testimony regarding rock removal and dewatering
costs.



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J-A27026-16



Pa.R.E. 804 (emphasis added). The proponent of a statement made by an

unavailable    declarant   must   establish    the    proponent   took   reasonable

measures to procure the declarant’s attendance. Consolidated Rail Corp.

v. Delaware River Port Authority, 880 A.2d 628, 631 (Pa. Super. 2005).

Declarations against pecuniary or proprietary interest are admissible as a

hearsay exception, which, as a threshold matter, require a finding of

unavailability of the declarant. See Heddings v. Steele, 526 A.2d 349, 352

(Pa. 1987).

      Here, Designline’s unavailability is irrelevant. The change request

documents do not constitute statements that fall under any of the Rule

804(b) exceptions.     Stampfi is not the declarant of the statements (i.e.,

change   request     documents)     proffered        by   Sycamore,   contradicting

Sycamore’s assertion that, collectively, the change request documents

constitute “a statement against [Stampfi’s] interest.” N.T. Trial, 5/14/17, at

117. As the trial court noted, the change request documents are “at best,

statements by Designline.” N.T. Trial, 5/14/17, at 118.

      The business records exception provides, in relevant part:

      (6) Records of a Regularly Conducted Activity. A record
      (which includes a memorandum, report, or data compilation in
      any form) of an act, event or condition if,

              (A) the record was made at or near the time by—or from
              information transmitted by—someone with knowledge;

              (B) the record was kept in the course of a regularly
              conducted activity of a “business”, which term includes
              business, institution, association, profession, occupation,



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J-A27026-16


            and calling of every kind, whether or not conducted for
            profit;

            (C) making the record was a regular practice of that
            activity;

            (D) all these conditions are shown by the testimony of the
            custodian or another qualified witness, or by a certification
            that complies with Rule 902(11) or (12) or with a statute
            permitting certification; and

            (E) neither the source of information nor               other
            circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6).

      For purposes of Pa.R.E. 803(6), while a qualified witness need not

have personal knowledge, the individual must be able to provide sufficient

information relating to the preparation and maintenance of the records to

justify a presumption of trustworthiness. Keystone Dedicated Logistics,

LLC v. JGB Enterprises, Inc., 77 A.3d 1, 13 (Pa. Super. 2013).           Merely

characterizing a document as a business record is insufficient to justify its

admission, because a business record, which contains multiple levels of

hearsay, is admissible only if each level falls within a recognized exception to

the hearsay rule.    Birt v. Firstenergy Corp., 891 A.2d 1281, 1291 (Pa.

Super. 2006).       Furthermore, while a qualified witness need not have

personal knowledge, the individual must be able to provide sufficient

information relating to the preparation and maintenance of the records to

justify a presumption of trustworthiness.     Keystone Dedicated Logistics,

77 A.3d at 1.     In evaluating the trustworthiness of business records, the

court will look to the sources of the information therein, method and time of


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J-A27026-16



preparation,    and   the   qualifications   of   the   custodial   witness.      See

Commonwealth Financial Systems, Inc. v. Smith, 15 A.3d 492 (Pa.

Super. 2011).

      At trial, Sycamore asserted that the “change orders, once they were

delivered to Sycamore, became Sycamore’s business records.”               N.T. Trial,

5/14/15, at 15. We find Commonwealth Financial Systems instructive.

There, NCOP Capital (NCOP) purchased the credit card debt of the appellee,

Larry Smith, from Citibank.        Later, appellant, Commonwealth Financial

Systems (CFS), purchased Smith’s credit card debt from NCOP.                   After a

verdict was entered in Smith’s favor in an action to collect credit card debt,

CFS appealed, contesting the trial court’s failure to allow the admission of

business records into evidence. At trial, CFS sought to introduce documents

it received, electronically, from NCOP.      The trial court denied the request.

CFS’ only witness was the vice-president responsible for overseeing its

portfolio collection division. CFS’ vice president testified he was not familiar

with how either Citibank or NCOP created, maintained or transmitted their

business records.     Additionally, CFS’ vice president did not have personal

knowledge of whether business records received from NCOP where prepared

at or near the time of the documented events or by someone with personal

knowledge. This court affirmed, citing the fact that CFS failed to establish

the business records they sought to introduce were sufficiently authenticated

and trustworthy. See Commonwealth Financial Systems, 15 A.3d at 500




                                       - 12 -
J-A27026-16



(“The record also supports the trial court’s finding that CFS failed to

establish the trustworthiness of its documents.”).

      Similarly, here, Sycamore was the recipient, not the preparer, of

various change requests documents prepared by Designline.           Sycamore’s

only witness at trial was Stein, a managing partner.        Sycamore typically

received change requests documents by mail, maintained the documents at

a construction site trailer maintained by Sycamore, copied the documents,

and occasionally transmitted the documents to relevant parties via email or

hand-to-hand exchange. Some of the documents were signed by an agent

of Sycamore, but that agent was not present to testify at trial. Absent from

the record is an account, by Stein or otherwise, of how the change orders

were created and/or calculated, the methods by which Designline maintained

the documents, and/or who from Designline transmitted the documents to

Sycamore. See Commonwealth Financial Systems, 15 A.3d at 492 (trial

court acted within discretion in finding documents proffered by appellant to

be insufficiently authenticated and untrustworthy and thus inadmissible;

custodial witness stated records had been qualified and had no further

knowledge     of   records).   Moreover,     Stein   was   unable   to   provide

circumstantial evidence corroborating the authenticity of the change order

documents (e.g., bank records verifying payment of change orders from the

construction lender or Sycamore).     See Keystone Dedicated Logistics,

supra.




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J-A27026-16



      In Commonwealth Financial Systems, CFS urged this Court to

adopt the federal “rule of incorporation,” which allows the trial court to admit

documents prepared by a third party as business records of the acquiring

business, if the business integrated the documents into its records and relied

upon them.       See U.S. v. Adefehiniti, 510 F.3d 319, 326 (D.C. Cir. 2007).

However, this Court declined to adopt the rule of incorporation, on the basis

that “the Pennsylvania Supreme Court has not seen fit to adopt the rule of

incorporation.”     Commonwealth Financial Systems, 15 A.3d at 500.

Thus, Stein’s assertion that he, as a managing partner of Sycamore, was

satisfied with the authenticity of the change request documents and made

payments in reliance upon the change requests is also insufficient. Pa.R.E.

803(6). Commonwealth Financial Systems, supra.

      In    sum,    the   record      at   hand     is    insufficient   to    establish    the

trustworthiness     of    the    change     request        documents,         which,     despite

Sycamore’s attempts to recast the documents as its own, were created by a

third party. Sycamore did not corroborate Stein’s testimony that it incurred

$197,009.12 for the cost of rock removal with any documentation, or with

the testimony of custodians from the construction lender, damages experts

or other witnesses.       See Vrabel v. Commonwealth, 844 A.2d 595 (Pa.

Commw. Ct. 2004) (amount of pecuniary damages cannot be presumed but

must be proved by establishment of facts). Additionally, the trial court did

not   err   in   excluding      the   change      order     documents         from     evidence.

Consequently, the trial court had no credible evidence to discern the

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appropriate amount of damages for rock removal and dewatering costs.

Accordingly, we do not find that the trial court abused its discretion in

discounting Stein’s testimony regarding the total amount of pecuniary

damages. As the finder of fact, the trial court was in the best position to

determine the trustworthiness of the change requests documents, as well as

the credibility of Stein’s testimony. We shall not substitute our judgment of

that of the trial court.

      In light of the foregoing, we do not find that the verdict is so contrary

to the evidence as to shock one’s sense of justice. See Agliori, supra. The

trial court did not err in granting Stampfi’s motion for nonsuit and only

finding Stampfi liable for costs associated with 30 days’ rent and interest.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/12/2017




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