J. A11024/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

IRON CITY INDUSTRIAL CLEANING           :    IN THE SUPERIOR COURT OF
CORPORATION, T/D/B/A IRON CITY          :          PENNSYLVANIA
UNIFORM RENTAL,                         :
                                        :
                        Appellant       :
                                        :
                   v.                   :
                                        :        No. 1366 WDA 2013
ARTHUR JAMES HOOK,                      :
D/B/A JIM’S TRANSMISSION SERVICE        :


                  Appeal from the Order, August 16, 2013,
             in the Court of Common Pleas of Allegheny County
                     Civil Division at No. AR 11-007359


BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., AND OLSON, J.


MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 03, 2014

     Appellant (“Iron City Uniform”) files this appeal from the order denying

its post-trial motions following the jury’s verdict in favor of appellee

(“Jim’s Transmission”) in Iron City Uniform’s breach of contract action

against Jim’s Transmission.1 Finding no error, we affirm.

     The trial court accurately summarized the factual background and

correctly framed the sole issue on appeal:

                 Because Defendant Arthur James Hook, d/b/a
           Jim's Transmission Service ("Jim's Transmission”) is

1
  An order denying post-trial motions is considered interlocutory and not
appealable; appeal must ordinarily be taken from the entry of judgment on
the docket. Dominick v. Hanson, 753 A.2d 824, 825 n.1 (Pa.Super.
2000). However, where judgment is subsequently entered, as it was here
on September 17, 2013, we may consider the appeal. Id.
J. A11024/14

          in the motor vehicle repair business, employees’
          clothing gets dirty quickly.            Hence, Jim's
          Transmission signed a written agreement with
          Plaintiff Iron City Industrial Cleaning Corporation
          t/d/b/a Iron City Uniform Rental (“Iron City
          Uniform") for the rental and cleaning of employee
          uniforms in 1997. The parties entered into a second
          agreement in 2000 and a third agreement in 2005.
          This 2005 agreement lasted for a term of five years
          but contained a provision for automatic five year
          renewal terms unless either party provided written
          notice of its intention not to renew within ninety days
          before the expiration of the term.           This 2005
          agreement also prohibited Jim's Transmission from
          renting uniforms from anyone except Iron City
          Uniform.

                In 2011, Jim's Transmission stopped using
          Iron City Uniform and began renting employee
          uniforms from a different supplier. Claiming the
          agreement had automatically renewed, Iron City
          Uniform sued Jim's Transmission for breach of
          contract. Before presiding over the jury trial of the
          dispute held on May 22 and 23, 2013, I ruled that
          the jury would determine only whether the
          agreement had been renewed, and if so, whether
          Jim's Transmission breached it. If the jury found in
          favor of Iron City Uniform on both of the questions,
          money damages would be addressed in a subsequent
          non-jury trial.    The Jury determined that the
          agreement between the parties had not been
          renewed, and I molded this Jury determination into a
          verdict in favor of Jim's Transmission. Iron City
          Uniform has appealed to the Superior Court of
          Pennsylvania from the verdict in favor of
          Jim's Transmission.     This Opinion provides the
          reasons I believe the jury's determination was
          correct. See Pa.R.A.P. No. 1925(a).

                During the trial, Arthur James Hook, the owner
          of Jim's Transmission, admitted that he signed a five
          year agreement with Iron City Uniform that "shall be
          automatically renewed for successive 260 revenue
          week periods unless either party provides 90 days


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J. A11024/14

            written notice of its intention not to renew prior to
            the expiration of the then current period." Exhibit 1,
            paragraph 2. Because Mr. Hook also admitted that
            Jim's Transmission never provided written notice of
            intention not to renew, Iron City Uniform asked me
            to direct the jury to find that the contract had been
            renewed. The sole issue that Iron City Uniform will
            argue on appeal is that I made an error because I
            did not direct the jury to reach that verdict.

Trial court opinion, 10/21/13 at 1-2 (footnote omitted).        We further note

that the written agreement between the parties contains a clause providing

that any amendment to the agreement must be in writing, signed by the

parties.

      Iron City Uniform raises the following issue on appeal:

            I.    THE TRIAL COURT COMMITTED AN ERROR OF
                  LAW AND/OR ABUSED HIS DISCRETION IN
                  NOT    UTILIZING  PLAINTIFF'S PROPOSED
                  VERDICT SLIP WHICH DIRECTED THE JURY TO
                  FIND THAT A CONTRACT EXISTED BETWEEN
                  THE PARTIES AS A MATTER OF LAW AND/OR
                  NOT INSTRUCTING THE JURY THAT IT MUST
                  FIND THAT A CONTRACT EXISTED ON
                  DECEMBER 2, 2010, BETWEEN THE PARTIES,
                  THEREBY TAKING A MATTER OF LAW FROM
                  THE JURY, AS IT WAS FOR THE COURT TO
                  DECIDE WHE[THER] A CONTRACT EXISTED IN
                  LIGHT OF THE TESTIMONY AND EVIDENCE AT
                  TRIAL.

Iron City Uniform’s brief at 4.

      Appellant’s issue presents a question of law as to whether the trial

court should have determined that the contract between the parties

automatically renewed rather than let the jury determine the issue.




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J. A11024/14

              Because contract interpretation is a question of law,
              this Court is not bound by the trial court's
              interpretation.       Our standard of review over
              questions of law is de novo and to the extent
              necessary, the scope of our review is plenary as the
              appellate court may review the entire record in
              making its decision. However, we are bound by the
              trial court's credibility determinations.

Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1

(Pa.Super. 2013), quoting Ruby v. Abington Memorial Hospital, 50 A.3d

128, 132 (Pa.Super. 2012), appeal denied, 68 A.3d 909 (Pa. 2013).

      We find that the trial court properly left to the jury the determination

as to whether the contract automatically renewed. Evidence was presented

at trial that brought into question whether the parties had modified the

original agreement both as to whether 1) an amendment to the agreement

had to be in writing; and 2) notice of termination of the agreement had to be

in writing.

                    A written contract which is not for the sale of
              goods may be modified orally, even when the written
              contract provides that modifications may only be
              made in writing. Universal Builders, Inc. v. Moon
              Motor Lodge, Inc., 430 Pa. 550, 244 A.2d 10
              (1968). An agreement that prohibits non-written
              modification may be modified by subsequent oral
              agreement if the parties’ conduct clearly shows the
              intent to waive the requirement that the
              amendments be made in writing. Accu-Weather v.
              Prospect Communications, 435 Pa.Super. 93, 644
              A.2d 1251 (1994). An oral contract modifying a
              prior written contract, however, must be proved by
              clear, precise and convincing evidence. Pellegrene
              v. Luther, 403 Pa. 212, 169 A.2d 298 (1961).




                                      -4-
J. A11024/14

Somerset Community Hospital v. Allan B. Mitchell & Associates, Inc.,

685 A.2d 141, 146 (Pa.Super. 1996).

      The owner of Jim’s Transmission gave testimony as to the events that

led to the acrimony between the parties.             Problems arose between the

parties approximately eight to ten months before the contract was scheduled

to automatically renew. (Notes of testimony, 5/22-23/13 at 114.) Among

the problems Jim’s Transmission noticed were uniforms being returned that

were wearing out badly with buttons missing, ripped seams, and holes. (Id.

at 112.)    Over the next three to four months, Jim’s Transmission made

numerous complaints but Iron City Uniform provided no meaningful

response.     (Id. at 112-114.)     At this point Jim’s Transmission orally

informed Iron City Uniform that they would not be renewing the contract.

(Id. at 114.) After the alleged renewal date of the original contract, a driver

for Iron City Uniform brought a new contract for Jim’s Transmission, insisting

that they sign it. (Id. at 115.) When Jim’s Transmission refused to sign the

new contract, in January, a superintendent with Iron City Uniform contacted

them, telling them that the old contract was up and insisting that they sign

the new contract. (Id. at 115, 126.)

      While possibly self-serving, if the jury believed this testimony,

Iron City Uniform could be viewed as having waived written notice and

accepted the oral notice that Jim’s Transmission would not renew the

contract    because   representatives    of   Iron   City   Uniform   subsequently



                                        -5-
J. A11024/14

contacted Jim’s Transmission with a new contract, conceding that the old

contract had expired, and insisting that Jim’s Transmission sign a new

contract. We agree with the trial court that in light of this evidence, it would

have been improper for the court to determine that the original agreement

had automatically renewed; this was a legitimate question for the jury.

       Accordingly, having found no merit in the issue raised on appeal, we

will   affirm   the   judgment   entered   below.      We    also   note   that

Jim’s Transmission has filed a motion to quash this appeal. We deny that

motion.

       Judgment affirmed. Motion to quash denied.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date:10/03/2014




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