J-A15003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

700 EBA, LLC                                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                          Appellee

                    v.

WEAVER’S GLASS & BUILDING
SPECIALTIES, INC.

                          Appellant                No. 1868 MDA 2016


               Appeal from the Order Entered October 21, 2016
               In the Court of Common Pleas of Centre County
                      Civil Division at No(s): 2013-4426


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

MEMORANDUM BY MOULTON, J.:                      FILED OCTOBER 10, 2017

      Weaver’s Glass & Building Specialties, Inc. (“Weaver’s Glass”) appeals

from the October 21, 2016 order in the Centre County Court of Common

Pleas entering judgment in favor of 700 EBA, LLC (“700 EBA”) and against

Weaver’s Glass in the amount of $67,420.25. We affirm.

      In 2005, Weaver’s Glass contracted with 700 EBA to furnish and install

35 windows and two doors in a building located at 700 Beaver Avenue, State

College, Pennsylvania.     Weaver’s Glass completed the required work, and

700 EBA paid the contract price.      Of the 35 windows installed, 21 were

Kawneer 451T model windows.

      In 2012, 700 EBA detected “major window failure” in connection with

the Kawneer 451T model windows, including water penetration into the

building in heavy rain.
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       On November 12, 2013, 700 EBA commenced an action against

Weaver’s Glass.      On July 28, 2015, 700 EBA filed an amended complaint,

which included a claim that Weaver’s Glass breached the contract by

improperly installing the windows.1

       On October 17, 2016, following a bench trial, the trial court entered

judgment in favor of 700 EBA and against Weaver’s Glass for breach of

contract.     The trial court awarded damages in the amount of $67,420.25

plus costs. The damages included the cost of replacing the windows, despite

Weaver’s Glass’s claim that replacement of the windows was not necessary

to correct the problem.

       On October 25, 2016, Weaver’s Glass filed a motion for post-trial

relief, which the trial court denied on October 27, 2016. On November 14,

2016, Weaver’s Glass filed a timely notice of appeal.

       Weaver’s Glass raises the following issue on appeal:

            Whether a trial court’s damages award after a non-jury
            trial, which includes the cost of new windows to replace
            allegedly leaking ones, should be reduced to the lesser
            cost of fixing the windows where the trial court did not and
            could not find that replacement was necessary and [700
            EBA’s] own expert testified that replacement was not
            necessary?

Weaver’s Glass Br. at 3.

____________________________________________


       1
       The amended complaint also asserted claims for breach of warranty,
which were dismissed prior to trial, and a fraudulent concealment claim,
which was dismissed during trial.



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      We apply the following standard of review to challenges to a non-jury

verdict:

              Our appellate role in cases arising from non-jury trial
           verdicts is to 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. The findings of fact of the trial judge must be given
           the same weight and effect on appeal as the verdict of a
           jury. We consider the evidence in a light most favorable to
           the verdict winner. 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. However, [where] the issue . . . concerns a
           question of law, our scope of review is plenary.

               The trial court’s conclusions of law on appeal originating
           from a non-jury trial 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.

Stephan v. Waldron Elec. Heating and Cooling LLC, 100 A.3d 660, 664-

65 (Pa.Super. 2014) (quoting Wyatt, Inc. v. Citizens Bank of Pa., 976

A.2d 557, 564 (Pa.Super.2009)).           Further, in addressing an award of

damages, our Supreme Court has stated:              “In reviewing the award of

damages, the appellate courts should give deference to the decisions of the

trier of fact who is usually in a superior position to appraise and weigh the

evidence.”    Ferrer v. Trustees of Univ. of Pa., 825 A.2d 591, 611 (Pa.

2002) (quoting Delahanty v. First Pa. Bank, 464 A.2d 1243, 1257

(Pa.Super. 1983)).

      Weaver’s Glass argues that the windows could have been repaired,

rather than replaced, and, therefore, the trial court erred in awarding



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damages based on the replacement cost of the windows. The claim does not

merit relief.

      The trial court concluded:

            The expert report from Architectural Testing, Inc.
         states:

                  To prevent further water leakage and associated
                  damage to the building, the window system
                  must be remediated in accordance with
                  manufacturer instructions or replaced.

         Exhibit P-12 (emphasis added).

                The expert report from Kawneer Company states:

                  Kawneer[’s] recommendation is for the product
                  frames to be removed, and then follow Kawneer
                  instructions 451-VG-970 for all seals and
                  installation of the sub-sill and frame.

         Exhibit P-13.

             A quote for the replacement of [700 EBA’s] twenty-one
         (21) windows, which was given by Nittany Building
         Specialties, Inc. (“Nittany Building”), totals $57,500.00.
         Exhibit P-8. A Nittany Building representative testified at
         trial that simply reinstalling the existing windows would be
         a liability and Nittany Building would not undertake such a
         project.

                                         ...

            The Court received evidence and heard credible
         testimony which established the replacement of all twenty-
         one (21) of [700 EBA’s] windows was a sufficient remedy
         for the damages caused by [Weaver’s Glass]. Thus, the
         Court’s award is reasonable as it achieves the purpose of
         making [700 EBA] whole.

Opinion in Response to Matters Complained of on Appeal, 12/2/16, at 2-3.




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         We conclude that the trial court’s finding that replacement of the

windows was a reasonable remedy for the damage caused by the breach of

contract is supported by the record.     Terry Deaven, the owner of Nittany

Building, testified that, due to liability concerns, his company would not have

completed the work if required to use the existing windows. N.T., 10/17/16,

at 99.     He further testified that it could cost more money to repair the

existing windows than to replace them, because “[e]verything has to come

out to get to at least the known problem and then the unknown problems.”

Id. at 100-01.      Further, Richard Merkert, a consultant in building and

construction, testified that the windows should be repaired or replaced. Id.

at 78.     He further testified that the work proposed by Nittany Building to

address the problem was reasonable and appropriate, id. at 79, and that the

quoted cost was reasonable, id.       In addition, Merkert testified that if a

company were to remove the windows, it may find additional problems,

which could cost more to resolve than the cost of replacement windows. Id.

at 93.

         Therefore, we conclude that the trial court did not err in awarding

damages based on the replacement cost of the windows.




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J-A15003-17



     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/10/2017




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