J-A28021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

JOSE GONZALEZ I/T/A PHILADELPHIA 4             IN THE SUPERIOR COURT OF
CONSTRUCTION AND PHILADELPHIA 4                      PENNSYLVANIA
CONSTRUCTION



                       v.

SAM’S MIDTOWN GROUP, INC.

                            Appellant                No. 103 EDA 2015


            Appeal from the Judgment Entered November 19, 2014
             In the Court of Common Pleas of Philadelphia County
              Civil Division at No(s): March Term, 2011, No. 1703


BEFORE: GANTMAN, P.J., PANELLA, J., and SHOGAN, J.

MEMORANDUM BY PANELLA, J.                        FILED JANUARY 12, 2016

       Appellant, Sam’s Midtown Group, Inc. (“the Company”), appeals from

the judgment after a jury verdict found it liable to Appellees, Jose Gonzalez

and Philadelphia 4 Construction (“Contractor”),1 on their claims for breach of

contract. The Company argues that Contractor was not entitled to relief as it

substantially breached the construction agreement prior to the Company’s

breach, that the trial court erred in not sanctioning Contractor for discovery


____________________________________________


1
   At the time of the contract, Appellee Gonzalez traded under the
unregistered fictitious name of Philadelphia 4 Construction. After filing the
Complaint that initiated this matter, Gonzalez registered the fictitious name.
There is no indication in the record that Philadelphia 4 Construction is a
limited liability business organization.
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violations, and that the evidence at trial did not support the amount of

damages awarded by the jury. After careful review, we affirm.

      The factual predicate of this litigation is largely undisputed.      The

Company, desiring to renovate a Philadelphia property in order to operate a

restaurant there, hired a project manager to oversee the renovations. The

project manager recommended the carpentry services of Contractor, and the

Company entered into a written agreement with Contractor.           Under the

written agreement, Contractor was to submit invoices to the project

manager for approval and payment.          The written agreement required a

detailed breakdown of material and subcontractor costs incurred by the

Contractor.   Furthermore, Contractor was required to obtain a two million

dollar comprehensive insurance policy that covered, inter alia, property

damages due to collapse.

      Contractor did not strictly comply with the requirements for detailed

breakdowns of costs with all of his invoices. Nor did Contractor have a two

million dollar comprehensive insurance policy at the time he started working

on the project.

      Contractor proceeded to perform the renovations listed in the written

agreement to the property beginning in August 2008. Shortly thereafter, a

structural wall at the site collapsed, causing the collapse of floors and other

walls. The damage was repaired, and construction continued. Contractor’s




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invoices were submitted to the project manager and were paid through

February 2009.

        Starting in March 2009, difficulties arose with the project. The project

manager quit and left the site, claiming that it had not been paid.         The

parties agree that Contractor completed the tasks listed in the original,

written agreement. However, at this point the parties disagree about what

happened.

        Contractor presented evidence that he reached an oral agreement with

the Company to finish the renovations after the project manager walked off

the site.     The Company presented evidence that it repeatedly asked

Contractor to fix instances of poor workmanship on tasks that it had already

completed. Contractor claims that it walked off the site after the Company

failed to abide the oral agreement and pay him for finishing the job.       The

Company claims that Contractor would not address its requests to fix the

problems with the Contractor’s previous work and instead just walked away

from the job.

        Several years later, Contractor instituted this litigation by filing a

complaint against the Company for breach of contract, violation of the

Contractor and Subcontractor Payment Act2, and unjust enrichment. After

lengthy discovery, a jury trial was held resulting in a verdict that the

____________________________________________


2
    73 P.S. §§ 501-516.



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Company had breached its contract with Contractor and was liable for

$175,000 in damages. The Company filed post-trial motions, which the trial

court denied, and this timely appeal followed.

      On appeal, the Company raises three broad issues, which include

related sub-issues. In its first issue, the Company argues that the trial court

erred in its handling of the Company’s defense premised upon its allegation

that Contractor materially breached the agreement first.      In its first sub-

argument, the Company contends that it was entitled to judgment in spite of

the verdict (“JNOV”). We review a decision denying JNOV by the following

standard.

      A JNOV can be entered upon two bases: (1) where the movant is
      entitled to judgment as a matter of law; and/or, (2) the evidence
      was such that no two reasonable minds could disagree that the
      verdict should have been rendered for the movant. When
      reviewing a trial court’s denial of a motion for JNOV, we must
      consider all of the evidence admitted to decide if there was
      sufficient competent evidence to sustain the verdict. In so doing,
      we must also view this evidence in the light most favorable to
      the verdict winner, giving the victorious party the benefit of
      every reasonable inference arising from the evidence and
      rejecting all unfavorable testimony and inference. Concerning
      any questions of law, our scope of review is plenary. Concerning
      questions of credibility and weight accorded the evidence at trial,
      we will not substitute our judgment for that of the finder of fact.
      If any basis exists upon which the jury could have properly made
      its award, then we must affirm the trial court's denial of the
      motion for JNOV. A JNOV should be entered only in a clear case.

Griffin v. Univ. of Pittsburgh Med. Center-Braddock Hosp., 950 A.2d

996, 999 (Pa. Super. 2008) (citation omitted).




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     Here, the Company contends that it is undisputed that Contractor

failed to adhere by the terms of the contract from the very beginning,

including poor workmanship, a failure to obtain sufficient insurance, and a

failure to properly document costs on his invoices. Generally, a party who

has materially breached a contract may not “complain if the other party

refuses to perform his obligations under the contract.”     Ott v. Buehler

Lumber Co., 541 A.2d 1143, 1145 (Pa. Super. 1988) (citation omitted).

“[A] material breach of a contract, which is vital to the existence of the

contract, relieves the non-breaching party from any continuing duty of

performance under the contract.” Umbelina v. Adams, 34 A.3d 151, 159

(Pa. Super. 2011) (citation omitted) (emphasis in original).      Thus, the

Company argues, it was entitled to judgment as a matter of law.

     In contrast, Contractor provided evidence that the initial, written

agreement was completed, and that he was fully paid for his work pursuant

to the written agreement.    See N.T., Trial, 5/5/14, 134-138.    Contractor

testified that his claims in this matter arose from separate, oral agreements

he made with the Company.        See id., at 138-142.      No evidence was

presented to the jury that these oral agreements contained similar

conditions as the written agreement. Viewing this evidence in a light most

favorable to Contractor, as the verdict winner, we cannot conclude that the

Company had established a prior breach of the oral agreement as a matter




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of law. Thus, we conclude that the Company is due no relief on this claim on

appeal.

       In a related sub-issue, the Company argues that the trial court erred

in failing to instruct the jury on the law regarding its defense of prior breach.

In particular, the Company submitted the following proposed jury instruction

prior to trial.

       In order for [Contractor] to recover on his breach of contract
       cause of action, [Contractor] also must not have breached the
       agreement.

       When a party to a contract seeks to enforce the agreement or to
       recover damages for breach of the agreement, that party must
       prove that he has performed all of his own obligations under the
       contract.

       If you find that [Contractor] breached the agreement, you must
       find for [the Company] on the breach of contract cause of action
       even if you find that [the Company] breached the agreement.

However, the Company did not discuss this instruction during the charge

conference. Nor did the Company object after the trial court concluded its

jury instruction. Instead, when the trial court requested any objections after

the instruction, counsel for the Company responded “No, Your Honor.                 I

think you covered the points.” N.T., Trial, 5/7/14, at 92. The Company thus

waived any issues it had with the jury instructions given by the trial court.

See James v. Ferguson, 162 A.2d 690, 693 (Pa. 1960) (“Failure of trial

counsel    to     manifest   any   disagreement   with   the   court’s   instructions

precludes, in the absence of fundamental and prejudicial error, a subsequent

contention that it was erroneous.”); see also Murphy v. Taylor, 269 A.2d

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486, 489 (Pa. 1970) (Failure to raise an objection until after jury returns a

verdict results in waiver of objection.)

      Next, the Company contends that the trial court erred in failing to

grant JNOV due to numerous alleged discovery violations on the part of

Contractor. We will not disturb a trial court’s imposition of sanctions, or lack

thereof, due to a party’s failure to comply with a discovery order absent an

abuse of discretion. See Schweikert v. St. Luke’s Hosp. of Bethlehem,

Pennsylvania, 886 A.2d 265, 268 (Pa. Super. 2005) (citation omitted).

      Nevertheless, the court’s discretion is not unfettered: because
      “dismissal is the most severe sanction, it should be imposed only
      in extreme circumstances, and a trial court is required to balance
      the equities carefully and dismiss only where the violation of
      the discovery rules is willful and the opposing party has been
      prejudiced.” Consequently, where a discovery sanction either
      terminates the action directly or would result in its termination
      by operation of law, the court must consider multiple factors
      balanced against the necessity of the sanction.

      In determining whether dismissal is appropriate, this Court has
      instructed that the following factors are to be considered:

         (1) the nature and severity of the discovery violation;

         (2) the defaulting party’s willfulness or bad faith;

         (3) prejudice to the opposing party;

         (4) the ability to cure the prejudice; and

         (5) the importance of the precluded evidence in light of the
         failure to comply.

Rohm and Haas Co. v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010) (internal

citations omitted). “We are mindful that each factor represents a necessary

consideration, not a necessary prerequisite.” Id. (citation omitted).


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       The Company argues that the trial court should have imposed the

most drastic sanction of dismissing Contractor’s cause of action. While we

are without the benefit of the trial court’s explicit reasoning on the issue, we

conclude that the trial court did not abuse its discretion by failing to dismiss

Contractor’s claims.     The Company’s complaints center on two types of

discovery:    the written records of costs incurred and hours worked by

Contractor, and proof of payment of an alleged fine.         While the lack of

written records of costs and labor were relevant evidence and might have

helped    discredit   Contractor’s   testimony,   the   Company     exhaustively

questioned Contractor about the lack of such documents and how their

absence impacted on his credibility. See, e.g., N.T., Trial, 5/5/14, at 202-

208.     While this solution was not optimal in the Company’s opinion, it

allowed the Company to challenge Contractor’s credibility with his failure to

produce these records. We therefore conclude that the trial court did not err

in refusing to dismiss Contractor’s case as a sanction.

       The Company’s other claim regards Contractor’s failure to register his

fictitious name, Philadelphia 4 Construction, while the work was being done.

Contractor admits that he did not register his fictitious name until May 9,

2011, after he filed his initial complaint, but prior to the filing of an amended

complaint. The Company, citing 54 Pa.C.S.A. § 331, argues that Contractor

was precluded from bringing suit until he paid a civil fine for doing business

before registering. However, section 331 does not preclude Contractor’s suit

as there is no contention that the Company did not know of Contractor’s real

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identity. See George Stash & Sons v. New Holland Credit Company,

LLC, 905 A.2d 541, 543 (Pa. Super. 2006). Therefore, the trial court did not

abuse its discretion in failing to dismiss Contractor’s case due to the alleged

discovery violation.

         In a related sub-issue, the Company argues that the trial court erred

in failing to instruct the jury on spoliation. For the same reasons that we

found the Company’s previous jury instruction argument waived, we

conclude that this argument is waived. The Company did not raise this issue

after the instruction when the trial court asked for any additions or

corrections.    Thus, the Company cannot now gain relief on appeal on this

issue.

         In its final issue, the Company argues that the trial court erred in

failing to grant its motion for remittitur. However, the argument section of

the Company’s brief in support of this issue is completely devoid of legal

authority supporting the Company’s argument. See Appellant’s Brief, at 21-

23.      “The Rules of Appellate Procedure state unequivocally that each

question an appellant raises is to be supported by discussion and analysis of

pertinent authority.” Eichman v. McKeon, 824 A.2d 305, 319 (Pa. Super.

2003). Furthermore, “[w]hen issues are not properly raised and developed

in briefs, when the briefs are wholly inadequate to present specific issues for

review[,] a Court will not consider the merits thereof.”    Branch Banking

and Trust v. Gesiorski, 904 A.2d 939, 942-943 (Pa. Super. 2006). We will




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not act as counsel for the Company and research this issue for it.   We

therefore find no basis upon which to grant the Company’s request.

      As we conclude that none of the Company’s issues on appeal merit

relief, we affirm the judgment.

      Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/12/2016




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