J-A04005-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LISA GARDNER AND MARK MONAHAN,                     IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                             Appellees

                       v.

LEE BRUDER, T/D/B/A BRUDER
CONSTRUCTION CO.,

                             Appellant                 No. 672 WDA 2014


                Appeal from the Judgment Entered March 31, 2014
                In the Court of Common Pleas of Allegheny County
                       Civil Division at No(s): AR-12-001706


BEFORE: BOWES, OLSON, and STRASSBURGER,* JJ.

MEMORANDUM BY BOWES, J.:                                 FILED JULY 10, 2015

       Lee Bruder t/d/b/a/ Bruder Construction Co. appeals from the

judgment entered on the non-jury verdict in favor of Lisa Gardner and her

husband, Mark Monahan (collectively referred to as “Appellees”), in the

amount of $21,655.          We affirm in part, reverse in part, and remand with

instructions.

       On March 26, 2011, Appellees entered a written contract with

Appellant to demolish an existing garage behind Appellees’ home in the

Mexican War Streets neighborhood of Pittsburgh, Pennsylvania, and build a

new two-car garage.           Pursuant to the written accord, a form contract

published by the American Institute of Architects (“AIA”), Appellees would
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-A04005-15



compensate Bruder $27,475, subject to additions and deductions as

provided by the agreement.1

       According to the scope of work document attached to the written

agreement, the original plan was to build a detached one-level carriage-

house style2 garage with a pitched roof.           Those plans outlined a garage

constructed of 620 square feet of masonry block with brick veneer covering

the front and rear walls from ground to the gutter.           The front side of the

garage incorporated a wood-clad two-bay garage door.                The rear of the

structure had an additional single car garage door, a window, and a door for

pedestrian access. The contract amount included the cost to build a 6’ x 12’

trussed    roof   with   appropriate      weatherization,   shingles,   gutters,   and

downspouts.       While not expressly included in the scope of work that

Appellant presented to Appellees prior to executing the construction

contract, the agreement also covered several items that had been previously

agreed upon.       That work included connecting the garage to the existing

electrical supply in the residence, installing an electric garage door opener,

____________________________________________


1
  The parties employed the 1987 edition of AIA Document A107 entitled
“Abbreviated Form of Agreement Between Owner and Contractor.”
2
  A carriage-house style of garage generally refers to a detached garage with
living space above the garage area. In order to save money on construction
cost, the initial construction plan omitted the second-floor living space
completely. However, as discussed in the body of this memorandum,
Appellees ultimately settled on a one-and-one-half-story structure in that
style.



                                           -2-
J-A04005-15



digging a trench for the installation of PEX water supply lines, and grading

the back yard for proper drainage.               Prior to signing the construction

agreement, Mr. Monahan listed the omitted tasks on a Post-It note in

Appellant’s presence and affixed that note to the scope of work that

Appellant had prepared.          Appellant eventually executed a change order

(Change Order No. 2) that acknowledged those tasks as included in the

original contract.

       The    demolition     phase     started   as    scheduled   and   construction

progressed for approximately one month.               On April 28, 2011, the parties

agreed to amend the scope of work to include a stripped-down one-half

story addition for $6,750.3        To facilitate the alterations, Appellant drafted

Change Order No. 1 that read, “Build additional ‘1/2 story’ onto garage of

725 SF of 8[”] block. Included are two dormer openings; one at yard and

one at street side.”       Defendant’s Exhibit C.       Appellant signed the change

order and presented it to Appellees for approval.

       Concerned that the change order was too vague and that Appellant

had, again, omitted agreed upon tasks, Mr. Monahan drafted a revised

change order that specified the height of the one-half story addition (six

feet), the pitch of the roof (6’ x 12’), and the composition of the window or


____________________________________________


3
  The revisions did not include a staircase or any interior framing. The one-
half-story interior was essentially a shell that Appellees could finish in the
future.



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J-A04005-15



door to be placed in the two dormer openings.        In addition, the revised

change order included cutting and installing a window in the south facing

gable and additional brick veneer covering the front, rear, and exposed side

of the structure. As Appellees interpreted their agreement with Appellant as

including these items, the revised change order did not alter the expected

increase of $6,750 to the contract price.

      Appellees executed their version of the change order and mailed it to

Appellant along with a $5,000 progress payment and the $6,750 advance

payment that Appellant requested to construct the addition. Appellant did

not sign the amended change order, but he accepted both payments and

continued to perform the construction work according to the revised design.

In the ensuing months, Appellees became dissatisfied with Appellant’s lack

of progress and the quality of the work he performed.        They also were

unhappy with Appellant’s failures to repair damage that his employees

caused to the neighboring property or to execute the revised Change Order

No. 1. Appellant never repaired the damage satisfactorily or executed the

revised Change Order No. 1.     Indeed, the scope of the work contained in

that change order was contested at trial and it remains a central contention

on appeal.

      Ultimately, it became apparent that the parties disagreed about the

scope of Change Order No. 1. and the additional costs associated with

Appellees’ proposed alteration of the planned electrical system. As it relates

to the substantial electrical alterations, on July 18, 2011, Appellees paid

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J-A04005-15



Appellant $1,500, which they believed covered the cost of permits and

materials. On July 20, 2011, Appellant prepared Change Order No. 3 in the

amount of $4,500. The change order, which Mr. Monahan denied receiving,

purportedly covered the following:

       1. Add 100A[4] electrical panel in the garage [and] 100A service
       at exterior.

       2. Add 8 receptacles in conduit on interior walls.

       3. Provide City of Pittsburgh electrical inspection.

Defendant’s Exhibit L.          Appellant completed portions of the electrical

alterations, but the extent of Appellant’s performance under the proposed

change order is unclear from the certified record.        Conversely, the record

reveals that Appellant’s proposed $4,500 increase under Change Order No. 3

did not include Appellees’ prior $1,500 payment. See Defendant’s Exhibit S.

       After communications soured, the pace of work slowed, and Appellant

eventually stopped performing.           By August 17, 2011, Appellees had paid

Appellant $28,250 toward the contract price of $34,225.                Appellees

requested a refund for work that was not completed. Appellant countered

with demands for payment for work he performed beyond the scope of the

contract prior to Appellees’ decision to terminate the contract, i.e., the

additional brick veneer and the expanded electrical work.
____________________________________________


4
 The ampere, also identified and “A” or “amp,” is the base unit for
measuring electric current.




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J-A04005-15



       On March 13, 2012, Appellees filed a civil complaint against Appellant

seeking $21,655 in damages. Appellant eventually filed a counter claim for

unjust enrichment totaling $14,775.5             The matter was assigned to

compulsory arbitration, and the board of arbitrators awarded Appellees the

damages they requested.            Appellant appealed the award, and the case

proceeded to a nonjury trial de novo on September 17, 2013.

       During trial, Mr. Monahan testified on behalf of Appellees.            He

presented documentation of a $670 payment to a third party to repair the

damage that Appellant caused to a neighboring property and to perform

masonry work on the garage.             In addition, Mr. Monahan submitted two

estimates outlining the projected cost to fix Appellant’s work and to

complete construction.        The two estimates projected the total remaining

costs to be $27,000 and $17,056 respectively.

       Mr. Bruder testified on his own behalf.      Essentially, he attested that

the $6,750 increase in the contract price, as outlined in his Change Order

No. 1, only covered the expense of constructing the one-half story addition

out of masonry block.         He explained that his quote did not include the

additional cost to affix brick veneer to the masonry block on the one-half

story addition, to purchase and install windows in the newly created dormer

openings, or to cut an opening and install a window under the south-facing

____________________________________________


5
  Appellant initially leveled multiple legal theories; however, the claim for
unjust enrichment was the only count to withstand preliminary objections.



                                           -6-
J-A04005-15



gable.   He also challenged Appellees’ evidence regarding the extent of his

performance under the contract, the accuracy of the estimated expense of

completing the tasks envisioned in the contract, and the uncontested

portions of the two change orders.

       As it relates to his counter claim, Mr. Bruder adduced evidence that,

after applying Appellees’ prior payments in the amount of $28,250 and

crediting Appellees $3,5006 for work that Appellant admittedly failed to

perform under the contract, Appellees still owed him $14,275 for work that

he completed. The bulk of that amount was $7,300 for the brick veneer that

Appellant affixed to the one-half story addition and $4,500 for the expanded

electrical work.

       On September 19, 2013, the trial court entered a non-jury verdict in

favor of Appellees and against Appellant in the amount of $21,655.                  It

rejected Appellant’s counterclaim.         Thereafter, the trial court denied post-

trial relief, and on March 31, 2014, it entered judgment on the verdict. This

timely appeal followed.

       Appellant    presents     one    question:   “Whether   the   verdict   is   so

outrageous that it is shocking to a sense of fairness and justice so as to

warrant a new trial?” Appellant’s brief at i. Our well-ensconced standard of


____________________________________________


6
  Appellant admitted that he failed to install roofing shingles, gutter and
downspout, window sills, and the pedestrian door.         See Defendant’s
Exhibit S.



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J-A04005-15



review from a non-jury trial verdict is as follows:       We must “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.”

Allegheny County Housing Authority v. Johnson, 908 A.2d 336, 340

(Pa.Super. 2006)      As with all questions of law, the trial court’s legal

conclusions “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.” Id. (internal citation omitted). However, we give great

deference to the trial court’s factual findings, which “must be given the same

weight and effect on appeal as the verdict of a jury.”        Id.   Finally, “We

consider the evidence in a light most favorable to the verdict winner [and]

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.” Id.

      Appellant challenges the trial court’s determination that he was

responsible for Appellees’ costs to complete the work that he never agreed

to perform. His claim is two-fold. The initial aspect of Appellant’s argument

concerns the scope of Change Order No. 1 and the second component

affects the calculation of Appellees’ damages in relation to the value of the

work that he allegedly performed without compensation. We address these

positions seriatim.

      First, Appellant contends that the version of Change Order No. 1 that

he submitted to Appellees accurately reflected the scope of the work that he

                                      -8-
J-A04005-15



envisioned in his $6,750 quote regarding the addition, i.e., constructing a

one-half-story addition using 725 square feet of eight-inch masonry block

and building opposing dormer openings in the roof of the structure.

Appellant continues that all of the remaining work that he completed on the

one-half-story addition at Appellees’ directives, including installing the

additional brick veneer and performing the expanded electrical work, was

outside the scope of the contract and that he should not be required to bear

the   substantially   increased   costs   associated   with   his   performance.

Accordingly, Appellant contends that he is entitled to payment from

Appellees for the value of the extra work.      Appellant also argues that the

evidence that Appellees submitted regarding the cost of completion did not

reflect the parties’ written agreements.      He posits, Appellees “presented

estimates at trial of what it would cost to finish a building that was larger

and more elaborate than the building referenced in the signed contract [and]

[Appellant] never agreed to build the structures reflected in the estimates.”

Appellant’s brief at 10.

      The only contract document that both parties admittedly executed is

the A107 form contract.     Additionally, the parties agreed to Change Order

No. 2, which memorializes the Post-It note that Appellees affixed to the

written contract before signing it. The crux of this dispute is the scope of

Change Order No. 1 regarding the construction of the one-half story addition

and the extent of the revised electrical work.          As noted, the parties

submitted countervailing interpretations of the two versions of Change Order

                                      -9-
J-A04005-15



No. 1 and never fixed the cost of the revised electrical alterations that

Appellant completed.

      In discounting Appellant’s position, the trial court concluded that

Change Order No. 1 included, inter alia, the cost to procure and install three

windows and 513 square feet of brick veneer on the exposed portions of the

one-half story addition. While the court made an express finding as to the

brick veneer, there was no definite finding as to the three windows.

Nevertheless, in light of the fact that the trial court included the omitted

windows in its calculation of the damages Appellees incurred as a result of

Appellant’s incomplete performance, the trial court necessarily determined

that the three windows were within the scope of Change Order No. 1. As we

highlight infra, the certified record supports both aspects of the court’s

conclusion. Accordingly, we do not disturb it.

      During the nonjury trial, Mr. Monahan testified that he and his wife,

Ms. Gardner, contracted with Appellant to build the distinctive carriage-

house style garage behind his home.          N.T., 9/17/13, at 16-17.   As Mr.

Monahan was uneasy with the lack of specificity in the scope of work

outlined in the contract documents that Appellant presented, he affixed a

Post-It note to the contract that listed four additional tasks that Appellant

agreed to perform but had omitted from the written instrument. Id. at 19-

20.   After construction started, Mr. Monahan spoke with Appellant about

building a one-half-story shell on top of the the planned structure. Id. at

22-23.   Thereafter, Appellant proffered a $6,750 quote to construct what

                                    - 10 -
J-A04005-15



was then envisioned as a one-and-one-half-story garage and he produced a

change order to that effect.    Id. at 24.    Mr. Monahan believed that the

proposed Change Order No. 1 was “extremely vague and [did not] reflect

the conversations that we had had about [the garage] that were more

specific than that.”   Id.   Accordingly, Mr. Monahan prepared a revised

change order that identified “specifics about the roof pitch[,] . . . [verified]

that each window opening would have either a door . . . or window[,] . . .

[a]nd . . . added a line about [the] front, rear and exposed side [having]

brick veneer.” Id. at 25. At trial, he explained that the initial contract for

the one-story garage only encompassed brick veneer on the front and rear

of the building, but since the exposed portions of the revised structure would

be visible from the street, it had to be covered by brick veneer to comply

with the neighborhood’s historic codes. Id. at 25-26.

      While Appellant failed to sign Mr. Monahan’s revised change order, he

never advised him that the windows and brick veneer were not included in

the new contract price. Id. at 28-29, 31. Additionally, as it relates to the

veneer, Appellant constructed the one-half story to accommodate the

application of the brick veneer. Id. at 29. Mr. Monahan explained,

      the side [of the garage] facing my neighbor's garage, which is a
      single story, is constructed of eight-inch wide block. And so at
      the point where it was going to become exposed above my
      neighbor's garage, it transitioned from eight-inch wide block to
      four-inch wide, which allows for the four inches of the brick next
      to it.




                                     - 11 -
J-A04005-15


            So for the remainder for the exposed side you've got four-
      inch wide block and four-inch wide brick running up the rest of
      the side.

Id. at 29.   Indeed, as noted supra, Appellant eventually applied the brick

veneer to all of the exposed sides of the building that were visible from the

street.   Id. at 74, 76.   Appellant did not indicate that the veneer was an

extra cost until after he substantially competed that portion of the job. Id.

Thus, the certified record supports the trial court’s finding regarding the

scope of the original contract and Change Order No. 1

      Having found that the record sustains the court’s determination that

the installation of additional brick veneer and dormer windows were included

in the new contract price of $34,225, we next examine the record regarding

Appellant’s performance of the modified contract. The focus of our review is

upon whether Appellant performed as expected. For the reasons that follow,

we find the record proves that he did not.

      During the trial, Mr. Monahan introduced photographs depicting

Appellant’s incomplete and unsuitable performance.        For example, the

photographs illustrated that Appellant framed the roof improperly and that

the misaligned roof created large gaps where the roof met the dormers and

the masonry blocks. See Plaintiff’s Exhibit 13, Photographs #11 and #18.

The condition was aggravated by the fact that Appellant’s masonry work was

incomplete on one side of the garage insofar as it did not ascend the entire

height of the structure.    Id.   Appellees also documented that Appellant

constructed the opposite wall at the incorrect pitch. N.T., 9/17/13, at 61;


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J-A04005-15



Plaintiff’s Exhibit 13, Photograph #16.      Additionally, since the roof was

framed improperly, no overhang existed to use with the gutter system,

which, along with the shingles and fascia board, Appellant neglected to

install. Id. at 58-59; Photograph #13. Thus, as Mr. Monahan testified, “any

precipitation would run down the wall rather than out into a gutter.” Id. at

58.   Other photographs demonstrated Appellant’s failure to complete the

brick veneer, lay the PVC conduit for the electrical lines, hang the electrical

panel, and install the rear-facing garage door and windows in both of the

dormer frames and the south-facing gable. Id. at 55-57, 59, 61-62; Exhibit

13; Photographs # 8, #9, #13, #16, and #18. Additionally, the masonry

arch on the dormer was incomplete and Appellant did not install window sills

on any of the windows. Id. at 75. All of the foregoing items, including the

basic electrical work, were within the contract as expanded by Change Order

No. 1. Finally, the record revealed that Appellant abandoned his scaffolding

and pump jacks on Appellees’ property.       Id. at 56, 60; Photograph # 15.

Mr. Monahan testified that, even after he and Ms. Gardner hired a crew to

dismantle the equipment, Appellant neglected to remove it from Appellees’

property for approximately one year. Id. at 56, 60.

      As it relates to the physical damage that Appellant caused to the

neighboring properties, Mr. Monahan stated that Appellant failed to repair

either of the walkways that he and his employees damaged. N.T., 9/17/13,

at 30.   Likewise, Appellant neglected to fix the damage that he caused to

Appellees’ gate, fencepost, and porch steps or mend the damage that his

                                    - 13 -
J-A04005-15



mason caused to the roof of a neighboring garage.        Id. 46, 57; see also

Plaintiff’s Exhibit 13, Photograph # 12. In fact, when questioned about the

repairs to Appellees’ property, Appellant feigned ignorance about the

fencepost, opined that rehanging the gate was not within the scope of the

contract, and characterized the porch stairs that his company accidently

demolished with a backhoe as “deficient” in the first place. N.T., 9/17/13, at

97-98, 100. Appellant did not contest Appellees’ assertion that none of the

repairs was performed.

       Concerning Appellant’s imperfect performance, Appellant conceded

that he neglected to complete the roof and gutter work, hang the barn door

at the rear of the garage, install a seal on the garage door, dig the trench for

the electrical and water lines, grade the yard for drainage, and finish the

masonry arch on the ground-level rear window. Id. at 97-99, 100.7            He

characterized that work as minimal and he estimated that the tasks could be

completed for approximately $3,500. Id. at 95; Defendant’s Exhibit S. For
____________________________________________


7
  Appellant acknowledged that he installed only one of four windows, but he
reiterated his position that the windows that he declined to install were not
included in the contract price. N.T., 9/17/13, at 95-97. Similarly, he
asserted that the contract had not budgeted for him to cut the window
opening under the gable, lay veneer around that window, attach wood
cladding to the garage door, and paint any portion of the structure. Id. at
88-89, 97, 99, 101. He claims that all of these items are outside the scope
of his contract with Appellees. Id. at 88-89, 97, 99, 101. However, as
noted in the body of this writing, the trial court found, either expressly or
implicitly, that these items were included in the contract price, and with the
exception of Appellant’s alleged responsibility to paint the garage, the record
sustains that finding.



                                          - 14 -
J-A04005-15



example, Appellant opined that it would cost $75 to complete the masonry

work and $150 to correct the framing issue. N.T., 9/17/13, at 100.

      Notwithstanding   Appellant’s    protestations   to   the   contrary,   the

foregoing evidence demonstrates that Appellant failed to perform as

expected under the contract.       Appellant performed certain tasks and

neglected others. Moreover, some of the work was only partially complete

and aspects of the work that Appellant did perform were not done in

workmanlike manner.       The roof was unfinished and poorly framed.

Appellant neglected to install shingles, fascia board, or a gutter and

downspout system.    He failed to complete the required masonry work and

preliminary electrical work under the contract, and he damaged Appellees’

property and the property of their neighbors. Stated simply, the evidence

sustains the trial court’s findings regarding Appellant’s lack of performance

under the modified contract. Thus, for all of the foregoing reasons, we find

the trial court did not err in framing the scope of Appellant’s performance

under the contract and in determining that certain aspects of the work

Appellant was required to perform under the contract were either ignored,

incomplete, or deficient. Hence, Appellant is responsible for the natural and

ordinary costs associated with completing the garage that Appellant agreed

to build.

      The second cog in Appellant’s reasoning challenges the trial court’s

calculation of the damages it awarded to Appellees. Preliminarily, Appellant

complains that the two estimates that Appellees adduced to establish their

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J-A04005-15



damages related to a “vastly expanded project that [he] never agreed to

complete.” Appellant’s brief at 8. While Appellant’s brief does not elaborate

upon this position fully, it is clear from his testimony and legal position

throughout the litigation that he believes that the scope of the construction

project was limited to his interpretations of the contract and Change Order

No. 1. That is to say, from Appellant’s perspective, the only items that were

included in the modified contract following the change order were the

construction of (1) the one-half-story addition from 725 square feet of

masonry block; and (2) a roof with two dormer window openings. As noted

supra, however, the record supported the trial court’s findings that Change

Order No. 1 included, inter alia, the installation of three windows and

additional brick veneer over the exposed portions of the structure. Thus, we

rebuff Appellant’s current line of argument for the identical reason that we

rejected his earlier contention.

      The remaining component of Appellant’s argument, which challenges

the logic of the trial court’s damage award, is more nuanced.              Appellant

argues that the verdict has no support in the law or facts of this case. We

disagree with the overly simplistic perspective that the damage award is

utterly   without   support.       However,      our   review   revealed   signficant

irregularities in the trial court’s rationale.

      Where the issue is not derived from a question of law, we review a

challenge to the calculation of damages for an abuse of discretion. J.J.

DeLuca Co., Inc. v. Toll Naval Associates, 56 A.3d 402, 417 (Pa.Super.

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J-A04005-15



2012).     As our Supreme Court reiterated in Helpin v. Trustees of

University of Pennsylvania, 10 A.3d 267, 270 (Pa. 2010) (quoting Ferrer

v. Trustees of the University of Pennsylvania, 825 A.2d 591, 610 (Pa.

2002)),
            Where one party to a contract without any legal
     justification, breaches the contract, the other party is entitled to
     recover, unless the contract provided otherwise, whatever
     damages he suffered, provided (1) they were such as would
     naturally and ordinarily result from the breach, or (2) they were
     reasonably foreseeable and within the contemplation of the
     parties at the time they made the contract, and (3) they can be
     proved with reasonable certainty.

The High Court continued, “The purpose of a damage award is to place the

non-breaching party ‘as nearly as possible in the same position it would have

occupied had there been no breach.’” Id. (quoting Lambert v. Durallium

Products Corporation, 72 A.2d 66, 67 (Pa. 1950)).              Indeed, “[t]he

measure of damages for breach of contract is compensation for the loss

sustained [and] [t]he aggrieved party can recover nothing more than [what]

will compensate him.” Id. (citation omitted) (emphasis in original).

     The fact-finder may not render a verdict based upon conjecture;

however, it may use a measure of deductive reasoning in estimating

damages. See J.J. DeLuca Co., Inc., supra, at 417. “The fact-finder may

make a just and reasonable estimate of the damage based on relevant data,

and in such circumstances may act on probable, inferential, as well as direct

and positive proof.” Id. at 417-418.




                                    - 17 -
J-A04005-15


      Herein, Appellant failed to complete the following tasks pursuant to the

original contract and Change Order No. 1: (1) correct the roof framing and

install sheathing, shingles, gutters, fascia boards, and downspout; (2) install

three windows; (3) hang garage door in rear; (4) clad, seal and install large

garage door; (5) dig trenches for electrical and plumbing conduits; (6) rough

grade the back yard for drainage; (7) install window sills; and (8) complete

the masonry arch over the yard-facing window.        In addition, Appellant is

responsible for Appellees’ expenditures to fix the roof of their neighbor’s

garage, repair the wooden gate, fence post, and shared walkway on their

property, and to replace the missing porch steps that were obliterated by

Appellant’s backhoe. Accordingly, the trial court’s award of damages must

reflect the sum of the costs to complete, repair, or replace these items.

      Instantly, the trial court explained the calculation of its $21,665

damage award in favor of Appellees as follows:

            The parties had originally contracted for services from
      Bruder to construct a carriage house in the agreed upon amount
      of   $27,475.00.     Subsequently,     the   plaintiffs requested
      construction of an additional one-half story for the carriage
      house and, pursuant to code, required brick veneer on all
      exposed outside surfaces of the entire structure. That change
      increased the initial cost of the contract by $6,750.00, resulting
      in a total cost of completion of $34,225.00. Plaintiffs paid
      $28,225.00 to Bruder toward that total cost. When Bruder failed
      to complete the work, Plaintiffs expended $27,000.00 to finish
      the project within the scope of the amended agreement and paid
      an additional $670.00 to cure damage allegedly occasioned by
      Bruder's negligence to a neighboring property in the course of
      his performance.

            ....


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      The plaintiffs were required to take the project to completion and
      to meet additional costs that, but for Bruder's failure to perform,
      would not have been incurred. The cost of completion was
      established at trial to be $27,670.00. That figure was pursuant
      [to] an estimate of $27,000.00 not only to complete the project
      but also to correct mistakes attributed to Bruder and by an
      additional $670.00 repair estimate for damage done to the
      adjacent property.

            The cost incurred by the plaintiffs was $55,895, which is
      the sum of the amount paid to Bruder and the amount required
      to complete the project after Bruder had ceased to perform:
      [$]28,225 + [$]27,670. Plaintiffs acknowledge that the total
      contract price with Bruder would have been $34,255.00. That
      amount was not, in fact, paid in full to Bruder, but plaintiffs
      concede that that sum would have been paid to Bruder had he
      completed the project. The damages due to the plaintiffs is the
      cost of the completed project less the sum Bruder would have
      received from plaintiffs had he fully performed the contract; that
      is, $58,895 less $34,225 or $21,670. The Court awarded
      $21,665; the amount pled.

Trial Court Opinion, 7/22/15, at 4-5 (footnote omitted).

      At the outset, we observe that the certified record supports the trial

court’s calculation of the $670 that Appellees paid to Mike and Mark

Geissinger for repairs to their neighbor’s roof and Appellant’s inadequate

masonry work. See Exhibit 14. Accordingly, we do not disturb that aspect

of the court’s calculation.

      The only evidence that Appellees proffered during the trial relating to

the cost of completing construction were two estimates, Plaintiff’s Exhibits




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J-A04005-15



15 and 16, respectively.8         Exhibit 15 is an email exchange between Mr.

Monahan and Bob Cullen, a prospective contractor, wherein Mr. Cullen
____________________________________________


8
  Both estimates were submitted in response to the following bullet-point list
of work that Mr. Monahan believed was required to complete the garage
renovation:

       • Install rectangular, double hung, wood framed windows on
       front, back, side (3 total)[;]

       • Finish roof framing to give proper overhang[;]

       • Install fascia boards on gable sides of balding (1x10)[;]

       • Install half-round gutters and round downspouts[;]

       • Install shingles on roof to match house[;]

       • Paint and hang sliding wood “barn” doors on track in yard-
       facing opening[;]

       • Re-hang wood gate at end of pathway to alley[;]

       • Dig trench between garage and house and install “conduit” for
       plumbing supply lines[;]

       • Pull circuit through existing conduit to provide power for
       garage door opener and an outlet[;]

       • Repair damaged fence (post leaning due to concrete base
       being exposed)[;]

       • Replace missing wood steps from yard to deck[;]

       • Re-grade yard for proper drainage to pathways and alley[;]

       • Install seal on existing 16' garage door[;]

       • Attach wood (cedar . . . ) cladding to 16' Masonite door to
       replicate older-style wood doors[;]
(Footnote Continued Next Page)


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J-A04005-15



responded to Appellees’ bullet-list of tasks by submitting a rough estimate of

$27,000.    Conversely, Exhibit 16 was an itemized proposal submitted by

Horn Corporation (“Horn”) that set forth a thorough description of the

precise work that it would perform for an estimated cost of $17,056.00.

      The trial court neglected to explain why it adopted Mr. Cullen’s rough

calculation of $27,000 over Horn’s quote to perform the work for

$17,056.00. In fact, other than a brief reference to Appellant’s argument,

the trial court failed to acknowledge the existence of the lower estimate.

That omission is especially problematic in light of the fact that Mr. Cullen’s

appraisement conceded that the project was “very hard to estimate,” see

Exhibit 15, and Horn submitted a detailed quote setting forth each task

individually. See Exhibit 16.

      During the trial, Mr. Monahan testified that Mr. Cullen’s approximation

was a more accurate depiction of his damages because Horn’s estimate did

not include some of the items on his bullet-point list. N.T., 9/17/13, at 65.
                       _______________________
(Footnote Continued)


      • Finish masonry

           o . . . finish bottom of yard-facing garage door opening to allow
           garage door to land properly

           o Finish brick jack arch above ground level yard-facing window

Plaintiff’s Exhibit 15. The only responsibility identified in the itemized list
that was not expressly or implicitly included in the contract documents is
painting the large barn doors at the rear of the garage. Accordingly, that
cost is not attributable to Appellant.



                                           - 21 -
J-A04005-15



While Mr. Monahan did not identify which jobs were omitted from Horn’s

quotation, our review of Exhibit 16 reveals that the quote did not include the

costs to repair Appellees’ fence, grade the back yard, transfer the main

electrical supplying wire to the new pole on top of the garage, supply the

negligible amount of bricks to complete the masonry arch over one window,

or paint the barn doors.   These five enumerated tasks that Horn omitted

from its quote do not explain the $10,000 variance between the two

estimates.

      First, as noted in footnote eight on pages 20-21, Appellant was not

responsible for painting the barn doors so that cost was properly omitted

from the quote. Conversely, since Mr. Cullen’s estimate appears to include

painting, the court’s reliance upon that aspect of the estimate in calculating

Appellees’ damages is improper. Additionally, we observe that Mr. Cullen’s

estimate excludes at least one item that was included in Horn’s quotation,

the decorative cladding for the garage door, and consistent with Horn’s

quotation, Mr. Cullen’s estimate also excluded the costs associated with the

masonry work.    N.T., 9/17/13, at 63; Exhibit 15.    For these reasons, the

exclusions noted in the Horn quotation fail to explain why Mr. Cullen’s

estimate exceeded Horn’s quotation by approximately $10,000. The record

simply does not sustain Mr. Monahan’s characterization of the Cullen

estimate as a more accurate assessment of damages.

      While the trial court was free to reject all, any, or none of Appellees’

evidence relating to damages, including Horn’s estimate of the cost to

                                    - 22 -
J-A04005-15



complete the garage, the certified record must nevertheless sustain the

court’s decision to adopt the Mr. Cullen’s estimate in toto. See J.J. DeLuca

Co., supra (“the fact-finder may not render a verdict based on sheer

conjecture or guesswork”). Instantly, nothing in the certified record begins

to explain the substantial disproportion of projected costs in the two

estimates, and the trial court did not attempt to reconcile that disparity.

Moreover, Mr. Cullen’s express qualifications that the project that was

difficult to evaluate and that his appraisal was a rough estimate thwarts any

potential   inference   that   his   assessment   was   intrinsically   accurate,

particularly when Horn presented a categorical proposal to perform the work

for approximately $10,000 less.

      Thus, mindful of the unexplained variance between the two estimates,

and the fact that Mr. Cullen’s estimate included costs associated with a task

that was not Appellant’s responsibility to complete, we find that the record

does not support the court’s wholesale adoption of Mr. Cullen’s estimate of

$27,000. At a minimum, assuming the accuracy of all remaining aspects of

Mr. Cullen’s approximation, the trial court’s estimate of Appellees’ damages

must be reduced by the projected cost of painting the barn doors.

      In addition to the foregoing discrepancies, the trial court’s calculation

of damages also ignores Appellant’s performance of the electrical work

beyond the original contract and Change Order No. 1.           As noted supra,

during construction, Appellees expanded the scope of the electrical work to

be performed on the garage. While the extent of Appellant’s performance is

                                      - 23 -
J-A04005-15



unclear, it is apparent from the certified record that: (1) Appellant

completed a portion of the expanded electrical work; (2) four days prior to

discontinuing their relationship with Appellant, Appellees conceded that they

owed Appellant money for that work beyond the initial payment of $1,500;

and (3) the trial court did not adjust the damage award to account for that

debt.    N.T., 9/13/15, at 45, 48, 70; Defendant’s Exhibit L, at 2       (“Upon

completion on or by [August 29] we will make final payment of the

remaining $6,195 plus the remainder due for the electrical work.”)

(emphasis added).

        Herein, the trial court based its calculation of damages upon Appellees’

payment of $28,250, including the $1,500 payment for electrical work,

toward the $34,225 contract price.       However, since the trial court did not

account for any electrical work beyond what was originally envisioned, it

neglected to determine the cost of Appellant’s performance of the expanded

electrical alterations and it omitted that figure from its calculation. Thus, in

order to make the parties whole, the trial court was required to increase the

contract price in the amount equal to Appellant’s cost of performance,

presumably an amount between $1,500 and $4,500 based upon the

evidence submitted at trial, before it could compute Appellees’ damages. As

the trial court omitted the value of Appellant’s performance from its

equation, Appellees received a windfall equal to that amount.

        Accordingly, for all of the preceding reasons we affirm the trial court’s

determination that Appellant was contractually obligated to perform in

                                      - 24 -
J-A04005-15



accordance with Appellees’ interpretation of Change Order No. 1 and that he

is liable for the reasonably foreseeable costs to repair his mistakes and

complete construction of the garage consistent with the contract documents.

However, we vacate the judgment entered on the $21,655 verdict and

remand for a new calculation of damages that is an accurate estimation of

the cost to complete Appellant’s contractual obligation and accounts for

Appellant’s performance of the expanded electrical work.

      Affirmed in part, reversed in part, and remanded with instructions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/10/2015




                                   - 25 -
