J-A28040-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    MYRON R. HAYDT DEVELOPMENT,                :   IN THE SUPERIOR COURT OF
    INC.                                       :        PENNSYLVANIA
                                               :
                                               :
               v.                              :
                                               :
                                               :
    1691 BETHLEHEM PIKE LP                     :
                                               :   No. 188 EDA 2017
                      Appellant                :

             Appeal from the Judgment Entered December 16, 2016
    In the Court of Common Pleas of Bucks County Civil Division at No(s): No.
                                 2014-80163


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

MEMORANDUM BY DUBOW, J.:                             FILED FEBRUARY 09, 2018

        Appellant, 1691 Bethlehem Pike LP, appeals from the December 16,

2016 Judgment entered in the Bucks County Court of Common Pleas in favor

of Appellee, Myron R. Haydt Development, Inc., in accordance with a verdict

rendered after a non-jury trial. After careful review, we affirm.

        Appellant, a strip mall owner, and Appellee, a contractor, entered into

a written construction contract.1         The construction contract provided that

Appellee would perform façade renovation and site improvement services at

Appellant’s strip mall located in Hatfield Township, Montgomery County, at a


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1 Appellant’s general partner, Scott Hartzell, and Appellee’s principal, Myron
R. Haydt, signed the contract on behalf of their respective businesses.
Although they are not individually named as parties, to facilitate our
discussion we herein refer to them as Appellant and Appellee, respectively.
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cost of $573,000, to be paid by Appellant. The contract included, inter alia,

a “no oral modifications” clause.              It also initially provided 120 days for

completion of the project2 and that Appellee would not receive final payment

until it delivered subcontractor lien waivers to Appellant.

        It is undisputed that Appellee did not complete work on the project

because Appellant asked it to leave the job site.              However, at the time

Appellant terminated Appellee, Appellee had substantially completed work

on the underlying contract and only minor punch-list tasks remained

unfinished.

        Following Appellee’s termination, Appellee demanded payment from

Appellant, but Appellant refused to pay.                Thus, on October 29, 2014,

Appellee filed a Mechanics’ Lien claim.             Further, on December 11, 2014,

Appellee filed a Complaint against Appellant, raising two claims: violation of

the Contractor and Subcontractor Payment Act (“CSPA”), 73 P.S. § 501 et

seq., and Breach of Contract.

        On December 19, 2014, Appellant filed an Answer and New Matter and

Counterclaim.      Appellee filed an Answer to Appellant’s New Matter and

Counterclaim on January 7, 2015.

        The court held a bench trial on June 29, 2016, and June 30, 2016.

The trial court made extensive findings of fact in its Opinion, which we adopt


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2   The parties later agreed in writing to extend this deadline.



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herein. See Trial Ct. Op., 12/13/16, at 1-8 (unpaginated). We summarize

the following germane evidence and findings of fact.

       Initially, the contract between the parties provided that Appellee would

use wood for framing.             However, when the Township reviewed the

renovation plans, it indicated that it preferred Appellee to use steel instead

of wood. Id. at 25. The parties thereafter had many discussions regarding

the design change from wood to steel and, in reliance on Appellant’s oral

representations, Appellee executed the revised design.       Id. at ¶¶ 32, 36.

The court specifically found that Appellant told Appellee after the parties

signed the contract that Appellant would pay Appellee for the design change

at the end of the project.          Id. at ¶ 39.   Moreover, Appellant assured

Appellee that Appellant “would make good on his promise to pay[.]” Id.

       The trial court found that, notwithstanding that the parties’ contract

required change orders to be in writing, the parties agreed orally to change

the plans from wood to steel. Id. at ¶¶ 28, 30-32.3

       Further, the court found credible testimony that Appellee had informed

Appellant that the cost of the change in materials from wood to steel was
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3 At trial, Appellee had testified regarding other terms in the original contract
that the parties either agreed orally to modify or remove. For example, the
contract originally provided for the installation of two sidewalk curb ramps,
but ultimately, pursuant to the parties’ oral agreement, Appellee installed
four sidewalk curb ramps. N.T., 6/29/16, at 65-66. Likewise, although
required by the contract, pursuant to a subsequent design change and oral
agreement, Appellee did not install a drive-through window and two patios.
Id. at 67-70.



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“only slightly more expensive,” but the labor cost change was “extremely

expensive,” and that using steel extended the time the project would take to

complete. Id. at 45, 46. The trial court found that the increase in cost as a

result of the change from wood to steel construction totaled $28,047. Id. at

¶ 49.

        The trial court also found that “[Appellee] had every subcontractor

sign a writing confirming that they had been paid in full,” and that Appellee

had provided Appellant with all of the subcontractors’ signed writings. Id. at

74.

        Following the trial,4 on July 20, 2016, the court entered a verdict for

Appellee in the amount of $107,145.00.5 On July 28, 2016, Appellant filed a

Post-Trial Motion for Judgment Notwithstanding the Verdict (“JNOV”). In its

Motion, Appellant: (1) challenged the court’s conclusion that Appellee’s claim

satisfied the requirements of the CSPA; (2) challenged the court’s conclusion

that Appellee presented “clear, precise and convincing” evidence that the

parties mutually agreed to waive the no-oral-modifications clause in their

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4 At the close of Appellee’s case-in-chief, Appellant did not move for a non-
suit pursuant to Pa.R.C.P. No. 226, or a directed verdict pursuant to
Pa.R.C.P. No. 227.1.

5 The verdict is comprised of two parts: $79,098.00 due under the base
contract and $28,047.00 due for the steel frame labor. Appellee prevailed
on both his Breach of Contract claim and his CSPA claim, although the trial
court did not award Appellee statutory damages under the CSPA for the
reasons explained infra. See n.6.



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contract; (3) alleged that the court erred in not performing a full cost

accounting of the project; and (4) alleged that the court erred in not limiting

Appellee’s damages to the project cost set forth in the written contract.

Post-Trial Motion, 7/28/16, at 9, 16, 20-21, 28, 34. The trial court denied

the Motion for JNOV on December 13, 2016, and entered Judgment in

Appellee’s favor on December 16, 2016.6 This timely appeal followed.

       Appellant raises the following three issues on appeal:

       1. When a [p]laintiff’s claim is based on an alleged oral
          amendment to a written contract [that] prohibits them, the
          [p]laintiff offers inconsistent evidence of an agreement to
          waive this prohibition, and only uncorroborated testimony of
          specific terms of the alleged amendment, has that party failed
          to meet the applicable “clear, precise and convincing”
          standard of proof?

       2. When an assessment of damages is premised upon an
          interpretation of a written agreement that omits and
          effectively annuls portions of the agreement, should the
          assessment be remanded to the trial court for further
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6 The court entered Judgment in the same amount as the verdict because it
denied Appellee’s request for statutory damages, interest, and attorney’s
fees under the CSPA based on its finding that Appellant “did not withhold
payment in bad faith, and [Appellee] did not ‘substantially prevail’ in the
matter.” Trial Ct. Op. at 11 (unpaginated). See 73 P.S. § 512(a) (“An
amount shall not be deemed to have been wrongfully withheld to the extent
it bears a reasonable relation to the value of any claim held in good faith by
the owner, contractor or subcontractor against whom the contractor or
subcontractor is seeking to recover payment.”); Waller Corp. v. Warren
Plaza, Inc., 95 A.3d 313, 319 (Pa. Super. 2014) (a “substantially prevailing
party” is one who recovers all compensatory damages in the suit.);
Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497, 503 (Pa. Super.
2002) (a party may also substantially prevail if it recovers all damages
claimed and the opposing party withheld payment in bad faith).




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         proceedings in which effect is given to the omitted cost
         accounting requirements?

      3. Even assuming a contractor’s valid common law breach of
         contract claim, when a contractor’s claim does not comport
         with the strict requirements of the [CSPA], and the owner has
         proven a complete defense to the statutory claim, should
         judgment be entered in favor of [the] owner?

Appellant’s Brief at 2.

      This Court will only reverse a trial court’s denial of Judgment N.O.V. if

the trial court committed an error of law that controlled the case or, if the

court, after reviewing the evidence in the light most favorable to the verdict-

winner and giving the verdict-winner the benefit of all inferences, abused its

discretion:

      Appellate review of a denial of JNOV is quite narrow. We may
      reverse only in the event the trial court abused its discretion or
      committed an error of law that controlled the outcome of the
      case. Abuse of discretion occurs if the trial court renders a
      judgment that is manifestly unreasonable, arbitrary or
      capricious; that fails to apply the law; or that is motivated by
      partiality, prejudice, bias or ill will. When reviewing an appeal
      from the denial of a request for JNOV, the appellate court must
      view the evidence in the light most favorable to the verdict-
      winner and give him or her the benefit of every reasonable
      inference arising therefrom while rejecting all unfavorable
      testimony and inferences. . . . Thus, the grant of JNOV should
      only be entered in a clear case and any doubts must be resolved
      in favor of the verdict-winner[.]

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959,

967 (Pa. Super. 2015) (citations, quotation marks, and brackets omitted).




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        Appellant’s first and second issues implicate the sufficiency of

Appellee’s evidence at trial.7           Specifically, Appellant first argues that

Appellee produced “no . . . evidence of a waiver [of] the ‘no oral

modifications’ term[]” and, thus, Appellee’s “allegation of the existence of an

oral agreement at or near the commencement of the project . . . fails to

meet the ‘clear, precise, and convincing’ standard of proof as a matter of

law.”    Appellant’s Brief at 12-13, citing Gloeckner v. School District of

Baldwin Twp., 175 A.2d 73, 75 (Pa. 1961). Appellant avers in its second

issue that Appellee did not offer any evidence of “any alleged amendment to

Article 16 generally, or specifically to § 16.2 of the Agreement[,]” and, thus,

the court must conduct a full cost accounting of the Project.8         Appellant’s

Brief at 16.

        Before addressing the merits of Appellant’s sufficiency claim, we first

consider whether Appellant has preserved it.           Pursuant to Pa.R.C.P. No.

227.1, “after trial and upon the written Motion for Post–Trial Relief,” a trial
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7 Appellant attempts to frame his second issue as a challenge to the court’s
interpretation of the parties’ contract, but bases his argument on an
assumption that Appellee presented insufficient evidence to show their
agreement to permit oral modifications to the contract.

8  Article 16, “Termination of the Contract,” sets forth the circumstances
under which either party may terminate their Agreement. Agreement,
undated, at 9-10.       Article 16.2.2 provides that, when any of the
circumstances giving rise to termination for cause, pursuant to Article 16.2,
exists, Appellant may “take possession of the site and of all materials
thereon owned by [Appellee], and finish the [w]ork by whatever reasonable
method [Appellant] may deem expedient.” Id. at § 16.2.2.



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court may, inter alia, “direct the entry of [J]udgment in favor of any

party[.]” Pa.R.C.P. No. 227.1(a)(2). However, a trial court may only grant

such relief if the “grounds therefor ... were raised in pre-trial proceedings or

by motion, objection, point for charge, request for findings of fact or

conclusions of law, offer of proof or other appropriate method at trial.”

Pa.R.C.P. No. 227.1(b)(1) (emphasis added).               In order to preserve a

challenge to the sufficiency of the evidence, a defendant is required, at the

close of the plaintiff’s case, to move for a nonsuit or a directed verdict on the

basis that the plaintiff has not established a right to relief. Haan v. Wells,

103 A.3d 60, 67 (Pa. Super. 2014).             Pursuant to Pa.R.C.P. No. 226, “[a]t

the close of all the evidence, the trial judge may direct a verdict upon

the oral or written motion of any party.” Pa.R.C.P. No 226(b) (emphasis

added). The failure to make such a motion waives an appellant’s sufficiency

challenge. See Haan, 103 A.3d at 67 (citing, Bennyhoff v. Pappert, 790

A.2d 313, 317 (Pa. Super. 2001)).

       Our review of the record reveals that Appellant did not file a Motion for

a Directed Verdict or Nonsuit at trial raising any challenges to the sufficiency

of Appellee’s evidence.9         As a result, Appellant waived his sufficiency

claims.10, 11


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9 To the extent that Appellant’s claims challenge the weight given to the
testimony, we decline to disturb the trial court’s credibility determinations.
Karch v. Karch, 885 A.2d 535, 537 (Pa. Super. 2005) (citation omitted)
(Footnote Continued Next Page)


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      In its final issue, Appellant claims that, because the trial court found

that Appellant had withheld payment in “good faith,” the trial court erred in

finding Appellee entitled to any payment under the CSPA. Appellant’s Brief

at 18. Appellant argues that “good faith withholding” is a complete statutory

defense to a CSPA claim. Id. Appellant has not developed this argument,

nor has he cited any statutory authority case law in support of this assertion.

      It is long-settled that failure to argue and to cite any authority

supporting an argument constitutes a waiver of the issue on appeal. Jones

v. Jones, 878 A.2d 86, 90 (Pa. Super. 2005).        This Court will not act as

counsel and will not develop arguments on behalf of an appellant. Bombar

v. West American Insurance Company, 932 A.2d 78, 93 (Pa. Super.

2007). When deficiencies in a brief hinder our ability to conduct meaningful

appellate review, we can dismiss the appeal entirely or find certain issues to


(Footnote Continued) _______________________

(”This [C]ourt defers to the credibility determinations of the trial court as to
witnesses who appeared before it.”).

10 Because Appellant waived these issues, we affirm the trial court’s
determination that the parties agreed to permit oral modifications of the
terms of the Agreement. Accordingly, Appellant’s issue as it pertains to the
court’s accounting also fails because the success of this claim was contingent
upon this Court concluding that the trial court erred in finding that the
parties did not orally modify their Agreement.

11Even if Appellant had not waived this issue, it would not merit relief. Our
review of the record indicates that the trial court’s findings of fact amply
support its conclusion that Appellee presented sufficient evidence of the
parties’ intent to waive the “no oral modifications” clause in their contract.
See Trial Ct. Op., at 12-14 (unpaginated).



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be waived.     See Pa.R.A.P. 2101.        Because Appellant has failed to develop

this issue, he waived it.12 See id. See also Bombar, supra at 95; Jones,

supra at 90.

       Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/9/18




____________________________________________


12 Moreover, even if Appellant had not waived this issue, it would not be
entitled to relief. In this issue, Appellant mischaracterizes the “good faith
withholding” exception in the CSPA. Contrary to Appellant’s assertion, the
“good faith withholding” exception set forth in 73 P.S. § 512(a), does not
extinguish a plaintiff’s right to payment under the terms of the contract;
rather it insulates a defendant only from the imposition of statutory
damages. See Zimmerman, 784 A.2d at 502.



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