J-A29025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PORT VUE PLUMBING                          :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    RITE FENCE AND ANTHONY S.                  :   No. 677 WDA 2019
    NEINO, INDIVIDUALLY                        :


               Appeal from the Judgment Entered on May 2, 2019,
               in the Court of Common Pleas of Allegheny County,
                     Civil Division at No(s): GD-17-013715.


BEFORE:      BENDER, P.J.E., KUNSELMAN, J., and PELLEGRINI, J.*

MEMORANDUM BY KUNSELMAN, J.:                            FILED MARCH 30, 2020

        Port Vue Plumbing appeals from the judgment entered in favor of Rite

Fence1 and Anthony S. Neino (collectively "Subcontractor"), in this breach of

contract action. After careful review, we affirm.

        In 2015, Port Vue won a bid to be the general contractor under a

construction contract with the Westmoreland Fayette Municipal Sewage

Authority for the construction of a Wastewater Treatment Facility and the

Swedetown Pump Station. As part of the project, Port Vue was required to

supply and construct a perimeter fence with gates around the Treatment Plant.

In December 2016, Port Vue retained Subcontractor to install this fence.
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.

1Rite Fence is a fictitious business name of a sole proprietorship owned and
operated by Anthony S. Neino.
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      Port Vue agreed to supply the fence materials and concrete for the

project; Subcontractor agreed to provide labor and equipment for installation

of the fence.   Port Vue agreed to pay Subcontractor $38,000.00 for its

services. On December 21, 2016, Port Vue gave Subcontractor a purchase

order, along with an initial payment of $5,000.00.

      Port Vue and the Authority’s Engineer provided Subcontractor with the

specifications for the fence installation.   In particular, the specifications

required that corner post holes be excavated and filled with concrete at a

width of 12" and a depth of 30", and that line post holes be excavated and

filled with concrete at a width of 9" and a depth of 30".

      Shortly thereafter, on December 26, 2016, Subcontractor began

construction of the fence at the Treatment Plant. As work progressed, Port

Vue made progress payments on January 3, 2017 ($10,000.00) and on

February 1, 2017 ($7,500.00). At the time of these payments, no issues were

raised about Subcontractor’s performance.

      On February 27, 2017, the Authority’s Engineer notified Port Vue that

some of the line posts were wobbly. Subcontractor acknowledged that there

were posts near the gravel parking lot that were unstable; the condition of the

soil in that area prevented the posts from staying in place with their concrete

footings. At that point, Subcontractor had completed about 2/3 of the work.




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      Port Vue and the Authority’s Engineer proceeded to check several posts.

Because the project was behind schedule and funds for inspection were low,

the Authority authorized only limited inspection. Upon inspection, Port Vue

and the Authority’s Engineer allegedly found posts with insufficient concrete

or hole depth. Because of this deficiency, the Authority’s Engineer determined

that 200 posts had to be removed and reinstalled. Subcontractor disputed

that the work did not comply with the contract specifications and rejected this

resolution, but was willing to try to work out an alternative solution.

      One day later, on April 11, 2017, the Authority directed that 200 posts

be removed and reset. The following day, the Authority’s Engineer sent Port

Vue a letter notifying it that the posts were to be removed and replaced.

      On April 13, 2017, Port Vue hired another contractor to reinstall the

fence posts once Port Vue had removed them. The next day, Port Vue notified

Subcontractor that it intended to take legal action against it for failing to install

the fence posts in accordance with the specifications and complete the project.

      Port Vue filed suit against Subcontractor on October 5, 2017, asserting

claims for breach of contract and unjust enrichment, and seeking damages in

the amount of $34,458.27.

      On March 27 and 28, 2019, the court held a bench trial. Thereafter, on

April 8, 2019, the trial court ruled in favor of Subcontractor and against Port

Vue on both its breach of contract and unjust enrichment claims.

      Port Vue filed post-trial motions asking the trial court to set aside the

verdict and direct judgment in Port Vue’s favor, which the trial court denied.

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Port Vue timely appealed. Both Port Vue and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

      Port Vue raises three issues on appeal for our review:

      I. Whether the trial court erred in refusing to enter Port Vue's
      photographs into evidence?

      II. Whether the trial court erred in ignoring competent evidence
      favorable to Port Vue and weighing the testimony and evidence at
      trial?

      III. Whether the trial court erred in entering a verdict in favor of
      Subcontractor and against Port Vue?

Port Vue’s Brief at 2.

      In its first issue, Port Vue contends that the trial court erred in refusing

to admit certain photographs into evidence at trial. According to Port Vue, the

pictures depicted various line posts and holes after the line posts had been

removed. Port Vue claims the photos showed insufficient concrete was used

to set the posts. It claims the trial court should have admitted these photos

as evidence to show that Subcontractor failed to use the required amount of

concrete and, therefore, breached the agreement. Port Vue’s Brief at 11.

      Generally, we note that our standard of review for evidentiary rulings is

a narrow one:

      When we review a trial court's ruling on admission of evidence,
      we must acknowledge that decisions on admissibility are within
      the sound discretion of the trial court and will not be overturned
      absent an abuse of discretion or misapplication of law. In addition,
      for a ruling on evidence to constitute reversible error, it must have
      been harmful or prejudicial to the complaining party.




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Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010), affirmed, 55

A.3d 1088 (2012).

      For a document or photograph to be admissible trial, it must first be

authenticated by “evidence sufficient to support a finding that the item is what

the proponent claims it is.” Pa.R.E. 901(a); see also Zuk v. Zuk, 55 A.3d

102, 112 (Pa. Super. 2012). More specifically, it is well-established that

“[b]efore a photograph is admissible it must be verified[.] Such verification

must be by someone who has sufficient knowledge to state that it fairly and

truthfully represents the object or the place reproduced.” Taylor v. Modena,

87 A.2d 195, 196 (Pa. 1952) (citations omitted).

      The trial court denied admission of the photographs, because Port Vue’s

witnesses were unable to state who took the photos, at what time during the

course of construction the photos were taken, and where specifically on the

engineering plan each photographed post was located. Trial Court Opinion,

7/17/19, at 7. Thus, it found the photos could not prove or explain any alleged

inadequacy of the depth of the post holes or insufficient amount of concrete.

Id.

      At trial, the Authority’s Engineer testified that the pictures generally

represented what they discovered when the posts were removed. Another

witness for Port Vue hesitated when stating that the photos were of different

holes. However, considering no one could state when or where the photos

were taken, the trial court was not convinced that the photos were properly

verified as required by Rule of Evidence 901(a). Given the uncertainty about

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what the pictures represented, we do not find that the trial court abused its

discretion or committed an error of law in refusing to admit the photos into

evidence.

      Even if the photos were admissible, the trial court’s refusal to admit

them was not harmful or prejudicial to Port Vue. The trial court explained that

although it did not admit the photographs into evidence, it examined the

photos and heard the testimony related to them. Id. Therefore, because Port

Vue was not prejudiced by this evidentiary ruling, the court’s refusal to admit

the photos in this bench trial was not reversible error. Port Vue’s first issue

merits not relief.

      In its second issue, Port Vue claims that the trial court’s verdict was

against the weight of evidence. Specifically, Port Vue claims that the trial

court ignored competent evidence favorable to Port Vue in weighing the

evidence and rendering its decision. Port Vue’s Brief at 14, 16. According to

Port Vue, the weight of the evidence clearly favored a finding that

Subcontractor utilized insufficient concrete when it installed numerous line

posts, and thus, the trial court’s verdict should be reversed.   Id. at 18.

      When reviewing a weight claim, we are mindful of the following

principles:

      Appellate review of a weight claim is a review of the [trial court's]
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. Because the trial
      judge has had the opportunity to hear and see the evidence
      presented, an appellate court will give the gravest consideration
      to the findings and reasons advanced by the trial judge when
      reviewing a trial court's determination that the verdict is against

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J-A29025-19


      the weight of the evidence. One of the least assailable reasons for
      granting or denying a new trial is the lower court's conviction that
      the verdict was or was not against the weight of the evidence and
      that a new trial should be granted in the interest of justice.

In re Estate of Smaling, 80 A.3d 485, 490 (Pa. Super. 2013) (citing

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)). The trial court

may award a judgment notwithstanding the verdict or a new trial “only when

the jury's verdict is so contrary to the evidence as to shock one's sense of

justice. In determining whether this standard has been met, appellate review

is limited to whether the trial judge's discretion was properly exercised, and

relief will only be granted where the facts and inferences of record disclose a

palpable abuse of discretion.” Samuel–Bassett v. Kia Motors Am., Inc.,

34 A.3d 1, 39 (Pa. 2011)(citing Commonwealth v. Cousar, 928 A.2d 1025,

1035–36 (Pa. 2007)).

      Typically, a weight claim is filed after a jury trial in the hope that the

trial court judge who, like the jury, had an opportunity to hear the evidence

and observe the demeanor of the witnesses, ‘will conclude that the verdict

was so contrary to what it heard and observed that it will deem the jury’s

verdict such a miscarriage of justice and trigger the court’s time-honored and

inherent power to take corrective action.” Criswell v. King, 834 A.2d 505,

512 (Pa. 2003). Here, however, a non-jury trial was held. Although weight

of the evidence claims have been addressed in non-jury cases, there is a

logical inconsistency in asking a trial judge to conclude that his non-jury




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decision shocked his own conscience.         Notwithstanding this, we consider

whether the trial court’s decision was against the weight of the evidence.

      Obviously, the trial court here concluded that its non-jury decision was

not against the weight of the evidence. In reaching this conclusion, the trial

court reviewed the evidence presented by the parties concerning whether the

posts had insufficient concrete or hole depth and whether any breach of

contract caused the wobbly fence posts. The trial court found that Port Vue

failed to adequately identify whether holes were not dug to specification or

had insufficient concrete.     Instead, the trial court credited Subcontractor’s

testimony regarding the location and cause of the wobbly posts and relied on

it in weighing the evidence.

      The trial court further credited Subcontractor’s testimony as to why it

was unable to complete the project.       The trial court found that, after the

wobbly posts were discovered, the decision to remove 200 posts was arbitrary,

particularly in light of Subcontractor’s contention that no more than 10 posts

were wobbly.    Additionally, Port Vue did not give Subcontractor adequate

notice of the problem or an opportunity to cure the alleged defect. Port Vue

also did not submit a change order to the Authority for additional work,

assuming that the original specifications were inadequate to support the line

posts in some areas. While Subcontractor was waiting to hear from Port Vue

regarding an alternative resolution, Port Vue immediately went out and hired

another contractor to finish the job. Moreover, not only did the replacement




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contractor complete the work, but totally ripped out the work Subcontractor

had already performed.

      Based upon our review of the record and the trial court’s consideration

of the same, we discern no abuse of discretion in the trial court’s rejection of

Port Vue’s weight of the evidence claim. Here, there was conflicting testimony

as to the location and cause of the wobbly fence posts. Additionally, there

was conflicting testimony as to whether all 200 posts had to be removed to

resolve the problem. A mere conflict in testimony will not suffice as grounds

for a new trial. Winschel v. Jain, 925 A.2d 783, 788 (Pa. Super. 2007).

      Furthermore, the factfinder is free to believe all, part, or none of the

evidence and to determine the credibility of the witnesses.”           Samuel–

Bassett, 34 A.3d at 39. Here, the trial court acknowledged that its decision

in this case turned on credibility. The trial court found Subcontractor more

credible, and resolved any conflicts in the testimony in its favor. We further

note that the trial court considered the evidence as a whole, not just the

limited excerpts of testimony Port Vue has identified in arguing this issue. For

these reasons, Port Vue second claim challenging the weight of the evidence

warrants no relief.

      In its third issue, Port Vue claims that the trial court erred in entering a

verdict in favor of Subcontractor and against Port Vue. Essentially, Port Vue

argues that the evidence established that Subcontractor breached the contract

or was unjustly enriched.     According to Port Vue, Subcontractor failed to

properly excavate and fill with concrete the line post holes as required by the

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contract specifications. Consequently, Port Vue had to remove a significant

portion of the fence and hire another contractor to reconstruct it. Additionally,

Port Vue paid Subcontractor $22,500 for work it claims Subcontractor failed

to perform. Therefore, Port Vue argues the trial court should have entered

judgment in its favor. Port Vue’s Brief at 19-21.

      Our scope and standard of review of these claims is well-defined:

      Our appellate role in cases arising from non-jury trial [decisions]
      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.

J.J. DeLuca Company, Inc. v. Toll Naval Associates, 56 A.3d 402, 410

(Pa. Super. 2012) (quotation marks, formatting, and citations omitted).

      The trial court ruled against Port Vue for two reasons. First, the trial

court found that Port Vue failed to prove that Subcontractor’s work did not

comply with the contract specifications, and thus did not breach its contract

with Port Vue. See Trial Court Opinion, 7/17/19, at 8. Second, the trial court

found that Port Vue’s own conduct excused Subcontractor’s continued

performance under the contract. Id. at 8-9.

      To establish a breach of contract claim, a plaintiff must prove: (1) the

existence of a contract, including its essential terms, (2) a breach of the

contract; and, (3) resultant damages. J.F. Walker Co., Inc. v. Excalibur

Oil Grp., Inc., 792 A.2d 1269, 1272 (Pa. Super. 2002).



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       Here, viewing the evidence in the light most favorable to Subcontractor

as the verdict winner, we conclude that the record supports the trial court’s

finding that Port Vue failed to prove its case that Subcontractor did not comply

with the contract specifications. Therefore, the trial court correctly concluded

that Port Vue failed to establish a breach of contract claim against

Subcontractor.2

       Furthermore, under Pennsylvania law, the conduct of one party that

prevents the other from performing is an excuse for non-performance. A party

is excused from performance under the contract if the other party's conduct

impedes his performance. See Slater v. General Cas. Co. of Am., 25 A.2d

697, 699 (Pa. 1942); see also Liddle v. Scholze, 768 A.2d 1183, 1185 (Pa.

Super. 2001).

       Similarly, we have held that “a material breach by one party to a

contract entitles the non-breaching party to suspend performance.” Widmer

Eng’g Inc. v. Dufalla, 837 A.2d 459, 467 (Pa. Super. 2003) (emphasis

added). “‘If a breach constitutes a material failure of performance, then the

non-breaching party is discharged from all liability under the contract.’” Id.

(quoting Lane Enterprises v. L.B. Foster Co., 700 A.2d 465 (Pa. Super.


____________________________________________


2 Port Vue also asserted a claim for unjust enrichment. However, both parties
acknowledged they had a written contract. Additionally, the trial court decided
the case under contract principles. Where a written or express contract
between the parties exists, the equitable theory of unjust enrichment does not
apply. See Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999). We
therefore confine our analysis to the contract theories of this case.

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1997), rev’d on other grounds, 710 A.2d 54 (Pa. 1998) (internal citations

omitted).

       Here, viewing the evidence in the light most favorable to Subcontractor

as the verdict winner, we conclude that the record supports the trial court’s

finding that Port Vue’s actions prevented Subcontractor from completing the

project.

       The record also supports the trial court’s finding that Port Vue failed to

deal with Subcontractor fairly and reasonably. “Every contract imposes a duty

of good faith and fair dealing on the parties in the performance and the

enforcement of the contract.” Giant Food Stores, LLC v. THF Silver Spring

Dev., L.P., 959 A.2d 438, 447–48 (Pa. Super. 2008), appeal denied, 972 A.2d

522 (2009) (citation omitted).         Under the circumstances of this case, Port

Vue’s breach was material.3

       Applying the foregoing legal principles to this case, the trial court did

not err in concluding that Subcontractor’s non-performance was excused. Port

Vue’s third issue also warrants no relief.

       Judgment affirmed.




____________________________________________


3 We note that the trial court did not specifically state that Port Vue’s breach
was material. However, we infer that the trial court found it to be material
based upon its conclusion that Subcontractor’s performance was excused, in
part, because of Port Vue’s failure deal with Subcontractor in good faith and
fair dealing.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/30/2020




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