J-A24005-17

                              2017 PA Super 361



WALDRON ELECTRIC HEATING AND                    IN THE SUPERIOR COURT OF
COOLING, INC.                                         PENNSYLVANIA

                         Appellant

                    v.

DANIEL P. CASEBER AND MARGARET A.
CASEBER

                                                     No. 161 WDA 2017


           Appeal from the Judgment Entered January 20, 2017
           In the Court of Common Pleas of Washington County
                     Civil Division at No(s): 2014-790


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

OPINION BY MOULTON, J.:                        FILED NOVEMBER 14, 2017

      Waldron Electric Heating and Cooling, Inc. (“Waldron Electric”) appeals

from the January 20, 2017 judgment entered in its favor in the Washington

County Court of Common Pleas following a bench trial.         We affirm in part

and reverse in part, and remand to the trial court for further proceedings.

      Waldron Electric filed in Allegheny County a complaint in arbitration

against Daniel P. and Margaret A. Caseber asserting claims of breach of

contract and unjust enrichment.      The Casebers filed a consent motion to

transfer the case to Washington County, which the trial court granted.

Following an arbitration award finding in favor of the Casebers, Waldron

Electric appealed to the Washington County Court of Common Pleas.             On

March 21, 2016, the trial court conducted a non-jury trial.
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      The trial court set forth the following facts:

             Thomas Waldron, principal of [Waldron Electric], and a
         registered electrician, testified that on Saturday,
         September 8, 2012 he received a phone call from Daniel
         Caseber, one of the defendants, inquiring about surge and
         lightning protection.      They briefly discussed [Mr.
         Caseber’s] needs and then Waldron suggested a ball park
         figure for the work which [Mr. Caseber] rejected. Waldron
         suggested that he could make a house call to view the
         situation but that the charge for such a visit would be
         $65.00. [Mr. Caseber] agreed and Waldron went to the
         Caseber residence. After some discussion, the parties
         signed a contract which described certain work to be done
         by [Waldron Electric] for the total consideration of
         $870.00.1 As is required by law, 73 P.S. § 517.8(b), the
         contract contained a right of rescission: “an individual-
         shall be permitted to rescind a contract without penalties
         within three business days of the date of signing”.
         Waldron immediately set to work and on that day
         completed the job. He was paid and left.
            1
              Nothing in the record suggests this work was done
            on an emergency basis.

             On the following Monday, two days later and on the first
         business day after the contract was signed and the work
         performed, [Waldron Electric] received by certified mail a
         notice of cancellation, Waldron called [Mr. Caseber] and
         demanded return of the electrical components he had
         installed in [Caseber’s] household wiring. [Mr. Caseber]
         said he offered the surge protector and lightning arrestor
         to Waldron in that phone conversation[,] and that he took
         those items to a subsequent hearing at the office of the
         Magisterial District Judge, and offered them to Waldron
         who refused to accept them. Waldron says that in the
         phone conversation he demanded the items, but [Mr.
         Caseber] denied him permission to come to the house, and
         that there was no offer of any components at the MDJ
         office. We accept [Mr. Caseber’s] version of these events.
         [Waldron Electric] refunded [Caseber’s] payment.

Trial Ct. Op, 1/6/17, at 1-2 (“Post-Trial Op.”).



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      On March 21, 2016, the trial court entered a verdict in favor of

Waldron Electric for $196, which included the $65 charge for the house visit

and $131 for the cost of transferring the action from Allegheny County to

Washington County. On March 31, 2016, Waldron Electric filed a motion for

post-trial relief requesting that the trial court direct verdict in its favor on its

unjust enrichment claim for damages equal to the reasonable value of the

work performed. On January 6, 2017, the trial court denied the motion and

directed the Prothonotary to enter judgment on the March 21, 2016 verdict.

On January 20, 2017, Waldron Electric filed a praecipe for judgment on non-

jury verdict, and judgment was entered. That same day, Waldron Electric

filed a timely notice of appeal.

      Waldron Electric raises the following issues on appeal:

         1. Whether the Trial Court erred in considering and
         referencing the current state of [the Casebers’] electrical
         system, and in overruling [Waldron Electric’s] Objection on
         the matter in its Memorandum Opinion in violation of its
         own Order of Court of March 21st, 2016?

         2. Whether the Trial Court erred in its refusal to consider
         the reasonable value of the services performed by
         [Waldron Electric], despite section 517.7(g) of the Home
         Improvement Consumer Protection Act enumerating such a
         right, because [Waldron Electric] had followed all material
         sections of the Act?

Waldron Electric’s Br. at 9.

      Waldron Electric first challenges the admission of evidence regarding

Mr. Caseber’s attempt to return electrical equipment.




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      “Questions concerning the admission and exclusion of evidence are

within the sound discretion of the trial court and will not be reversed on

appeal absent an abuse of discretion.”        Renninger v. A & R Machine

Shop, 163 A.3d 988, 996 (Pa.Super. 2017) (quoting B & L Asphalt Indus.,

Inc. v. Fusco, 753 A.2d 264, 270 (Pa. Super. 2000)).

      In February 2016, Waldron Electric filed a motion to compel inspection.

On February 26, 2016, the trial court granted Waldron Electric’s motion and

ordered that the Casebers permit Waldron Electric to inspect the electrical

system within 10 days of the date of the order.         Prior to trial, Waldron

Electric filed a motion for contempt and sanctions based on, among other

things, the Casebers failure to permit Waldron Electric to inspect the wire

system. On March 21, 2016, following argument, the trial court granted the

motion and ordered that the Casebers “may not present evidence of the

current condition of the wiring in their residence.” Order, 3/21/16.

      Waldron Electric claims that, following this order, the trial court erred

in allowing Mr. Caseber to testify as to his attempt to return the equipment

installed by Waldron Electric and relying on this testimony in its post-trial

opinion.

      At trial, the following exchange occurred:

           Q: Did you have a conversation with Mr. Waldron prior to
           the [magistrate district judge] hearing that has been
           mentioned today?

           A: Well, in the office, he came in, and we tried to give him
           the surge protector, I had it in a Giant Eagle bag, and also
           the lightning arrester were both taken out.

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       Q: And what [did] Mr. Waldron say, if anything?

       A: He said, “They’re junk.      I don’t want them, they’re
       junk.”

                                    ...

       Q: Did Mr. Waldron make any effort after November 9,
       2012, about picking up the equipment?

       A: No.

       Q: What is the status of those two pieces of equipment
       presently, do you know?

       A: Do you mean the ones I tried to give back to him?

       Q: Right.

       A: I have no idea. I gave them to you.

       Q: Are they in your house?

       A: No, sir.

       Q: Are they installed in the circuit box?

       A: No, sir.

       Q:   What did you do with the circuit box after you
       cancelled the – sent the – I should say three-day notice to
       Mr. Waldron?

       A: I tried to find an electrician to come in and do it, and
       put another surge protector in, because I didn’t want his
       stuff in there.

       Q: Was the equipment installed by Mr. Waldron removed?

       A: Yes

       [WALDRON ELECTRIC’ COUNSEL]: Your Honor, I’m going
       to object about any reference to the box, since we did not
       get to inspect it.

       THE COURT: Well, that’s true.

       [CASEBER’S COUNSEL]: Well, I believe your Honor said
       that there was no discussion of any other work or


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            additional thing. I’m just talking about the two pieces of
            equipment.

            THE COURT: Okay. The objection is overruled.

N.T., 3/21/16, at 55-57.

       We conclude that the trial court did not abuse its discretion in allowing

testimony regarding the attempted return of the two pieces of Waldron

Electric’s equipment.       This testimony did not describe the house’s wiring

system or the status of the electric box. Rather, it described an attempted

return of Waldron Electric’s equipment, which was required under the notice

of cancellation form.1

       Waldron Electric next argues that, contrary to the decision of the trial

court, section 517.7(g) of the Home Improvement Consumer Protection Act

(“HICPA”), 73 P.S. §§ 517.1-517.18, permits a contractor to recover the
____________________________________________


       1
           The notice of cancellation form states that:

            If you cancel, you must make available at your residence
            in substantially as good condition as when received, any
            goods delivered to you under this contract or sale; or you
            may, if you wish, comply with the instructions of the seller
            regarding the return shipment of the goods at the seller’s
            expense and risk. If you do make the goods available to
            the seller and the seller does not pick them up within
            twenty days of the date of your notice of cancellation, you
            may retain or dispose of the goods without any further
            obligation. If you fail to make the goods available to the
            seller, or if you agree to return the goods to the seller and
            fail to do so, then you remain liable for performance of all
            obligations under the contract.

Br. in Opp. to Mot. for Post-Trial Relief, Ex. B. This notice was admitted into
evidence at trial. See N.T, 3/21/16, at 43.



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J-A24005-17



reasonable value of services performed if the contract complied with section

517.7(a).    Waldron Electric maintains that because the parties’ contract

complied with section 517.7(a), the trial court erred in refusing to consider

whether Waldron Electric had established a claim for equitable relief.

      When reviewing a trial court’s interpretation of a statute, our standard

of review is de novo, and our scope of review is plenary. Shafer Elec. &

Constr. v. Mantia, 96 A.3d 989, 994 (Pa. 2014). Our Supreme Court has

stated:

          “[T]he objective of all interpretation and construction of
          statutes is to ascertain and effectuate the intention of the
          legislature.” Bayada Nurses v. Dept. of Labor and
          Indus., 607 Pa. 527, 8 A.3d 866, 880 (2010) (citing 1
          Pa.C.S. § 1921(a)). Generally, the best indication of the
          General Assembly’s intent is the plain language of the
          statute. “When the words of a statute are clear and free
          from all ambiguity, they are presumed to be the best
          indication of legislative intent.” Chanceford Aviation v.
          Chanceford Twp. Bd. of Supervisors, 592 Pa. 100, 923
          A.2d 1099, 1104 (2007) (citations omitted).

Allstate Life Ins. Co. v. Commonwealth, 52 A.3d 1077, 1080 (Pa. 2012).

      Section 517.7 of HICPA provides:

          (a) Requirements.--No home improvement contract shall
          be valid or enforceable against an owner unless it:

            (1) Is in writing and legible and contains the home
            improvement contractor registration number of the
            performing contractor.

            (2) Is signed by all of the following:

               (i) The owner, his agent or other contracted
               party.




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              (ii) The contractor or a salesperson on behalf of
              a contractor.

          (3) Contains the entire agreement between the
          owner and the contractor, including attached copies
          of all required notices.

          (4) Contains the date of the transaction.

          (5) Contains the name, address and telephone
          number of the contractor. For the purposes of this
          paragraph, a post office box number alone shall not
          be considered an address.

          (6) Contains the approximate starting date and
          completion date.

          (7) Includes a description of the work to be
          performed, the materials to be used and a set of
          specifications that cannot be changed without a
          written change order signed by the owner and the
          contractor.

          (8) Includes the total sales price due under the
          contract or includes a time and materials provision
          wherein the contractor and owner agree in writing to
          the performance of the home improvement by the
          contractor and payment for the home improvement
          by the owner, based on time and materials. If the
          contract includes a time and materials provision:

              (i) The contractor shall provide an initial cost
              estimate in writing to the owner before any
              performance    of   the   home    improvement
              commences.

              (ii) The contract shall state:

              (A) The dollar value of the initial cost estimate
              for the services to be performed under the time
              and materials provision.

              (B) That the cost of the services to be
              performed under the time and materials
              provision may not exceed 10% above the dollar
              value indicated in the initial cost estimate.



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J-A24005-17


              (C) The total potential cost of the services to be
              performed under the time and materials
              provision, including the initial cost estimate and
              the 10% referenced in clause (B), expressed in
              actual dollars.

              (D) A statement that the cost of the services to
              be performed under the time and materials
              provision shall not be increased over the initial
              cost estimate plus a 10% increase without a
              written change order signed by the owner and
              contractor.

          (9) Includes the amount of any down payment plus
          any amount advanced for the purchase of special
          order materials. The amount of the down payment
          and the cost of the special order materials must be
          listed separately.

          (10) Includes the names, addresses and telephone
          numbers of all subcontractors on the project known
          at the date of signing the contract. For the purposes
          of this paragraph, a post office box number alone
          shall not be considered an address.

          (11) Except as provided in section 12, agrees to
          maintain liability insurance covering personal injury
          in an amount not less than $50,000 and insurance
          covering property damage caused by the work of a
          home improvement contractor in an amount not less
          than $50,000 and identifies the current amount of
          insurance coverage maintained at the time of signing
          the contract.

          (12) Includes the toll-free telephone number under
          section 3(b).

          (13) Includes a notice of the right of rescission under
          subsection (b).

       (b) Right of rescission.--An individual signing a home
       improvement contract, except as provided in the
       emergency provisions of section 7 of the act of December
       17, 1968 (P.L. 1224, No. 387), known as the Unfair Trade
       Practices and Consumer Protection Law, shall be permitted
       to rescind the contract without penalty regardless of where

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           the contract was signed, within three business days of the
           date of signing.

                                           ...

           (g) Contractor’s recovery right.--Nothing in this section
           shall preclude a contractor who has complied with
           subsection (a) from the recovery of payment for work
           performed based on the reasonable value of services which
           were requested by the owner if a court determines that it
           would be inequitable to deny such recovery.

73 P.S. § 517.7 (footnotes omitted).

       The trial court held that, because there was a valid and enforceable

agreement that complied with section 517.7(a) of HICPA, Waldron Electric

was limited to contract damages and did not have a right to seek recovery

for “the reasonable value of services which were requested by the owner”

pursuant to section 517.7(g). Post-Trial Op. at 3.2 We disagree.
____________________________________________


       2
        The trial court relied on our decision in Shafer Elec. & Constr. v.
Mantia, which held that a contractor could recover under section 517.7(g)
where the contract failed to meet the requirements of section 517.7(a). 67
A.3d 8, 12-14 (Pa.Super. 2013), aff’d 96 A.3d 989 (Pa. 2014). The trial
court reasoned, based on Shafer, that section 517.7(g) applied only where
no valid contract existed, and in this case the parties had a valid contract.
Post-Trial Op. at 3.

       Our Supreme Court affirmed our decision in Shafer Electric, but on
different grounds. It concluded that HICPA is silent as to the availability of
common law remedies where a valid contract does not exist, and held that
where a contract fails to meet the requirements of section 517.7(a), a
contractor may seek recovery under common law equity theories, rather
than under section 517.7(g) of HICPA. Id. at 996-97.

      Regardless, the decisions in Shafer are inapposite. Unlike the
contract at issue in Shafer, here the contract complied with section
517.7(a).




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J-A24005-17



       Under the plain language of section 517.7(g), a contractor who

complies with section 517.7(a) is not precluded from asserting a claim for

the reasonable value of services performed. This conclusion is supported by

dicta in Shafer, where the Supreme Court noted that it is “self-evident and

plain that Section 517.7(g) speaks only to the availability of remedies to a

contractor who complies with section 517.7(a).” 96 A.3d at 996.

       Here, the parties and the trial court all agree that the parties’ contract

complied with section 517.7(a).            Post-Trial Op. at 3.   Therefore, under

section 517.7(g), because Waldron Electric “complied with subsection (a),” it

is not precluded “from the recovery of payment for work performed based on

the reasonable value of services which were requested by the owner if a

court determines that it would be inequitable to deny such recovery.”          We

recognize that this plain-language reading of section 517.7(g) may provide

contractors an incentive to complete work before the three-day rescission

period ends in order to defeat, as a practical matter, the homeowner’s three-

day right of rescission. The result, however, is compelled by the statutory

language.3

       Accordingly, we conclude that the trial court erred in finding that

Waldron Electric was barred from asserting a claim for the reasonable of

value of services under section 517.7(g). We make no determination as to

____________________________________________


       3
       Moreover, we note that section 517.7(g) permits the trial court to
deny recovery when such recovery would be inequitable.



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J-A24005-17



whether Waldron Electric has established a right to recover any payment;

that is, we make no determination as to the reasonable value of services or

whether it would be inequitable to deny recovery to Waldron Electric.

      Judgment affirmed in part and reversed in part.       Case remanded.

Jurisdiction relinquished.

      Judge Solano joins the opinion.

      Judge Musmanno files a dissenting opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/14/2017




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