J-A07041-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

INDEPENDENT ENTERPRISES, INC.                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                     v.

JD FIELDS & CO., INC.

                           Appellant                No. 1421 WDA 2014


             Appeal from the Judgment Entered August 4, 2014
             In the Court of Common Pleas of Allegheny County
                    Civil Division at No(s): GD-12-013078


BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.:                            FILED MARCH 26, 2015

      Appellant, JD Fields & Co., Inc. (JD Fields), appeals from the August 4,

2014 judgment of $38,601.66 entered, after a jury trial, in favor of Appellee,

Independent Enterprises, Inc. (Independent).        After careful review, we

affirm.

      The trial court summarized the relevant factual and procedural history

of this case as follows.

                  [Independent] is a construction company
            specializing in utility contracting involving water and
            sewer line work. [JD Fields] is a supplier of sheet
            piling products.      [Independent] purchased sheet
            piling material from [JD Fields] … to build a
            cofferdam in its efforts to complete a construction
            project. Sheet piling consists of long, flat sheets of
            steel that slide together to form a solid wall. These
            temporary cofferdams are used to keep water out of
            a work area.
J-A07041-15


                 [On July 27, 2012 Independent] filed this
          action against [JD Fields] asserting that said sheet
          piling supplied by [JD Fields] was defective, causing
          [Independent] to incur additional labor and
          equipment costs to install and remove the defective
          material.

                 In February of 2012, [Independent] first
          contacted [JD Fields] to obtain information about its
          interlocking sheet piling products. [Independent]
          maintains that at said time the purpose of their
          project was explained to [JD Fields]; and based on
          [Independent]’s needs, [JD Fields] suggested the
          use of a specific product, Hoesch 1205k interlocking
          sheet piling. The marketing materials distributed by
          [JD Fields] represented that the product, among
          other things, shall have adequate free play so that
          the piles can be fitted into each other.

                On February 28, 2012, [Independent] issued
          Purchase Order 51359 (hereinafter “PO”).       Said
          order was a request for 143,985 pounds of Hoesch
          1205k sheet piling to be delivered on site in
          Pittsburgh for the price of $98,629.73. On March 8,
          2012, [JD Fields] delivered 143,985 pounds of said
          material to said site.

                 [Independent] maintains that as installation of
          the sheet piling began, its employees immediately
          experienced a defect in the interlocking mechanism.
          Specifically, the interlocking mechanism did not
          contain adequate free play to allow the sheet pilings
          to be easily joined together. [Independent] further
          maintained that its employees had substantial
          experience and training with sheet piling as the
          installers were members of the local Millwrights and
          Pile Drivers Union. [Independent] asserted that the
          contractors had never experienced sheet piling that
          fit together so poorly. [Independent never paid the
          invoice for the purchase price of the sheet piling.]

                 [Independent] claimed that the failure of the
          sheet piling to conform to the requirements or to [JD
          Fields’] published specifications constituted a breach

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J-A07041-15


              of contract. [Independent] further claimed that the
              sheet pilings[’] failure to conform to the assertions
              made in the publication provided by [JD Fields], i.e.
              the product could be easily joined, constituted a
              breach of an express warranty.

                                               …

                    This matter was initiated by a [c]omplaint filed
              by [Independent] on July 27, 2012. Following a brief
              round of preliminary objections challenging both the
              venue and facts, [JD Fields] filed an [a]nswer, [n]ew
              [m]atter and [c]ounterclaim on December 19, 2012
              [for $104,547.51, the total amount of the purchase
              price for the sheet piling it provided]. The case was
              then listed for trial.

                    The parties were before [the trial court] in late
              March of 2014, and after argument on [m]otions in
              [l]imine were held, a three (3) day jury trial took
              place. At the conclusion of said trial, a [v]erdict was
              rendered in favor of [Independent] and against [JD
              Fields] in the amount of $90,875.42 and a verdict
              was entered in favor of [JD Fields] in its counter
              claim [sic] in the amount of $52,273.76.[1] The
              verdict was later molded by the [trial c]ourt to reflect
              an award in favor of [Independent] in the amount of
              $38,601.66.

                     [JD Fields] timely filed a [m]otion for [p]ost-
              [t]rial [r]elief. Following argument on said [m]otion
              for [p]ost-[t]rial [r]elief, [the trial court] entered an
              [o]rder on July 1, 2014 denying [the] same.
              Judgment on the [v]erdict was entered on August 4,
              2014, in the amount of $38,601.66. [JD Fields] filed
____________________________________________
1
  The jury’s award of $90,875.42 in favor of Independent was based on the
invoices it submitted regarding the extra equipment, labor, and two
subcontractor costs associated with the sheet piling provided by JD Fields.
As we explain infra, $52,273.76 was 50% of the JD Fields’ invoice, rounded
upward to the nearest penny.




                                           -3-
J-A07041-15


              a [timely n]otice of [a]ppeal to [this Court] on
              August 28, 2014.[2]

                    On September 3, 2014, [the trial c]ourt
              directed … JD Fields to file a [c]oncise [s]tatement of
              matters [c]omplained of on [a]ppeal pursuant to
              Pennsylvania Rule of Appellate Procedure … 1925(b).
              Said statement was timely filed on September 24,
              2014, placing this matter properly before [this Court.
              The trial court filed its Rule 1925(a) opinion on
              October 29, 2014].

Trial Court Opinion, 10/29/14, at 1-4 (internal quotation marks omitted).

        On appeal, JD Fields presents the following five issues for our review.

              1.     Whether expert testimony on the performance
                     and characteristics of steel construction
                     material known as sheet piling and the time it
                     should take to install such sheet piling, the
                     knowledge of which requires special skill and
                     training, was necessary to prove a construction
                     delay claim based on an alleged defect?

              2.     Whether the trial court erred in admitting
                     opinion testimony about the existence of a
                     “defect” in the sheet piling and the amount of
                     time that would “normally” be required to
                     install sheet piling where such testimony was
                     provided by fact witnesses who had not been
                     qualified or offered as expert witnesses?

              3.     Whether the evidence admitted at trial would
                     not allow any reasonable jury to determine
                     that [JD Fields] breached a contract for the
                     sale of sheet piling to [Independent] in its
                     provision of the sheet piling or that
                     [Independent] established any damages with
                     reasonable certainty?


____________________________________________
2
    Independent has not filed a cross-appeal.



                                           -4-
J-A07041-15


            4.     Whether, as a matter of law and upon
                   consideration of the evidence at trial, it was
                   error for the trial court to deny JD Fields’
                   motion to set aside the verdict and grant
                   additur to the verdict in its favor because, in
                   the absence of any evidence disputing the
                   amount of JD Fields’ damages, no two
                   reasonable minds could disagree that the
                   outcome should have been in favor of JD Fields
                   for the amount of its invoice and JD Fields
                   established with reasonable certainty that it
                   had suffered damages in a sum certain amount
                   of $104,547.51?

            5.     Whether the trial court erred in failing to grant
                   remittitur because the damages award to
                   [Independent], granting it in essence more
                   than its damages claim, was neither fair nor
                   reasonable and instead was excessive,
                   arbitrary, and not supported by the evidence,
                   and shocked the conscience so as to suggest a
                   mistake?

JD Fields’ Brief at 5-6.

      We begin by noting our standards of review regarding judgment

notwithstanding the verdict (JNOV) and the awarding of a new trial.

                   In reviewing a trial court’s decision whether or
            not to grant judgment in favor of one of the parties,
            we must consider the evidence, together with all
            favorable inferences drawn therefrom, in a light most
            favorable to the verdict winner. Our standard[s] of
            review when considering motions for a directed
            verdict and judgment notwithstanding the verdict are
            identical. We will reverse a trial court’s grant or
            denial of a judgment notwithstanding the verdict
            only when we find an abuse of discretion or an error
            of law that controlled the outcome of the case.
            Further, the standard of review for an appellate court
            is the same as that for a trial court.




                                      -5-
J-A07041-15


                  There are two bases upon which a judgment
            N.O.V. can be entered; one, the movant is entitled to
            judgment as a matter of law and/or two, the
            evidence is such that no two reasonable minds could
            disagree that the outcome should have been
            rendered in favor of the movant. With the first, the
            court reviews the record and concludes that, even
            with all factual inferences decided adverse to the
            movant, the law nonetheless requires a verdict in his
            favor. Whereas with the second, the court reviews
            the evidentiary record and concludes that the
            evidence was such that a verdict for the movant was
            beyond peradventure.

Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa. Super. 2010) (citation

omitted), affirmed, 55 A.3d 1088 (Pa. 2012).

                    Our review of the trial court’s denial of a new
            trial is limited to determining whether the trial court
            acted capriciously, abused its discretion, or
            committed an error of law that controlled the
            outcome of the case. In making this determination,
            we must consider whether, viewing the evidence in
            the light most favorable to the verdict winner, a new
            trial     would    produce     a    different   verdict.
            Consequently, if there is any support in the record
            for the trial court’s decision to deny a new trial, that
            decision must be affirmed.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)

(citations omitted).

      We elect to address JD Fields’ third issue first, as a ruling in its favor

on this issue would entitle it to judgment. In its third issue, JD Fields avers

that it is entitled to JNOV because “the evidence was, as a matter of law,

insufficient to create an issue of fact for the jury, and JD Fields was entitled

to a verdict in its favor.” JD Fields’ Brief at 34. Specifically, JD Fields argues


                                      -6-
J-A07041-15


that the evidence is insufficient to establish that it breached its contract with

Independent and that Independent established its damages with reasonable

certainty. Id. at 34-35.

      Generally, “[t]o successfully maintain a cause of action for breach of

contract the plaintiff must establish: (1) the existence of a contract,

including its essential terms, (2) a breach of a duty imposed by the contract,

and (3) resultant damages.” Albert v. Erie Ins. Exch., 65 A.3d 923, 928

(Pa. Super. 2013) (citation omitted). Furthermore, with regard to damages,

our Supreme Court has noted the following.

            Where one party to a contract without any legal
            justification, breaches the contract, the other party is
            entitled to recover, unless the contract provided
            otherwise, whatever damages he suffered, provided
            (1) they were such as would naturally and ordinarily
            result from the breach, or (2) they were reasonably
            foreseeable and within the contemplation of the
            parties at the time they made the contract, and (3)
            they can be proved with reasonable certainty.

Helpin v. Trustees of Univ. of Pa., 10 A.3d 267, 270 (Pa. 2010).

Additionally, “Pennsylvania law has never required proof of such damages to

a mathematical certainty.      This Court has long held that the evidence

necessary to establish damages is no more than ‘the best evidence

available.’” Hatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1237

(Pa. Super. 2012) (internal citations omitted), appeal denied, 65 A.3d 414

(Pa. 2013).    As an appellate court, “[i]f the verdict bears a reasonable

resemblance to the damages proven, we will not upset it merely because we


                                      -7-
J-A07041-15


might have awarded different damages.”                    Newman Dev. Grp. of

Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 659-660

(Pa. Super. 2014) (en banc) (citation omitted).

       As the trial court notes, “[t]his cause of action was merely to

determine     whether      the   product       supplied   by   [JD   Fields]    met   the

representations made by [JD Fields], i.e., that the sheet piling supplied by

[JD Fields] allowed for adequate ‘free play’ as promised.”3                    Trial Court

Opinion, 10/29/14, at 7-8. In this case, Independent elicited testimony on

direct examination from Jack Cargoni, an operating engineer and owner of

Independent, that the bulk of the sheet piling had “free play” issues after

delivery.

              Q:     You heard [other witnesses] describe the
                     problems that they experienced with the sheet
                     piling?

              A:     That’s correct.

              Q:     And did you observe them taking these steps
                     to try to fit the sheet piling together?

              A:     I was involved with it. 100 percent throughout
                     the whole ordeal.

                                               …

              Q:     What did you do once those problems started?


____________________________________________
3
  Independent refers to this as an “express warranty” regarding the sheet
piling.  Independent’s Brief at 12.    JD Fields does not challenge this
characterization. See generally JD Fields’ Reply Brief at 2 n.1.



                                           -8-
J-A07041-15


                A:    Whenever -- as soon as we started having
                      problems, big problems as far as the sheets
                      not going in at all, we had minor problems to
                      start with and then we started having major
                      problems, and that’s when I got ahold of the
                      office to get ahold of Geno Shore to get ahold
                      of JD Fields and have a representative sent out
                      immediately.

                Q:    Now, we said there are 85 pairs. Did every
                      one of these 85 pairs not fit together?

                A:    No. There was some that mated up.             Some
                      that mated up.

                Q:    Slid together?

                A:    Slid together. And there was some that just
                      didn’t slide together at all.

                Q:    As a percentage of the whole, how many of
                      them did you have -- how many sheets did you
                      have problems with?

                A:    75 percent of them.

N.T., 3/25/14, at 172-173. JD Fields’ own witness, Dan Abbondanza, who

was    called    to   the   site   after   Independent   reported    the    problems,

acknowledged that 25% of the sheet piling had this issue. Id. at 266.

       As to damages, Cargnoni testified that he drew up an invoice for the

extra costs associated with the sheet piling provided by JD Fields, including

additional labor costs. N.T., 3/25/14, at 184. Cargnoni divided such costs

into   four   distinct   categories,   equipment,   labor,   and    two    contractor-

subcontractor categories. Id. at 185. Cargnoni explained to the jury how

each line was calculated in detail.          Id. at 185-189.   Cargnoni sent the


                                           -9-
J-A07041-15


invoice to JD Fields, but it did not pay said invoice. Id. at 189. Cargnoni

later adjusted the labor costs downward in a second invoice.                 Id. at 191-

192. These invoices were admitted without objection. Id. at 184, 235.

      Although      JD   Fields   points    out     inconsistencies   in   Independent’s

witnesses’ testimony regarding damages, these inconsistencies do not

render Independent’s evidence insufficient. See DeArmitt v. N.Y. Life Ins.

Co., 73 A.3d 578, 593 (Pa. Super. 2013) (stating with regard to calculation

of damages, “[a]lthough the factfinder may not render a verdict based on

sheer conjecture or guesswork, it may use a measure of speculation in

estimating damages[]”) (citation omitted); Epstein v. Saul Ewing, LLP, 7

A.3d 303, 314 (Pa. Super. 2010) (stating, “[w]here the evidence of damages

presented by the plaintiff is contested by the defendant, the jury in a civil

action does not have to accept the plaintiff’s measure of damages because

the jury is free to accept all, part, or none of the evidence[]”) (citation

omitted), appeal denied, 20 A.3d 1212 (Pa. 2011).                      Based on these

considerations, we conclude there is evidence in the record for the jury to

conclude that Independent proved breach and damages by a preponderance

of the evidence. See Reott, supra. As a result, JD Fields is not entitled to

relief on this issue.

      We next address JD Fields’ first and second issues together, as they

are interrelated.    In its first issue, JD Fields argues that Independent was

required to provide expert testimony to establish “the purported cause of


                                           - 10 -
J-A07041-15


any installation issues with the [s]heet [p]iling.” JD Fields’ Brief at 25. JD

Fields further avers that Independent failed to “present expert testimony to

allow the jury to conclude that any such installation issues caused [it] to

suffer a delay, and thus damages, on the River Crossing Project.” Id. In its

second issue, JD Fields argues that Independent’s witnesses who testified to

the subject matters of “the performance and characteristics of sheet piling,

[the] installation time for sheet piling, and whether the [s]heet [p]iling had

adequate free play[]”offered only inadmissible lay opinion evidence. Id. at

30. Our standard of review with regard to evidentiary issues at trial is well

settled.

                 When we review a trial court 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.

                 An abuse of discretion is not merely an error of
           judgment, but if in reaching a conclusion the law is
           overridden or misapplied, or the judgment exercised
           is manifestly unreasonable, or the result of partiality,
           prejudice, bias or ill-will, as shown by the evidence
           or the record, discretion is abused.

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).

      Pennsylvania Rules of Evidence 701 and 702 describe the interplay

between lay witnesses and expert witnesses.

           Rule 701. Opinion Testimony by Lay Witnesses


                                    - 11 -
J-A07041-15


            If a witness is not testifying as an expert, testimony
            in the form of an opinion is limited to one that is:

            (a) rationally based on the witness’s perception;

            (b) helpful to clearly understanding the witness’s
            testimony or to determining a fact in issue; and

            (c) not based on scientific, technical, or other
            specialized knowledge within the scope of Rule 702.

            Rule 702. Testimony by Expert Witnesses

            A witness who is qualified as an expert by
            knowledge, skill, experience, training, or education
            may testify in the form of an opinion or otherwise if:

            (a) the expert’s scientific, technical, or other
            specialized knowledge is beyond that possessed by
            the average layperson;

            (b) the expert’s scientific, technical, or other
            specialized knowledge will help the trier of fact to
            understand the evidence or to determine a fact in
            issue; and

            (c) the expert’s methodology is generally accepted in
            the relevant field.

Pa.R.E. 701, 702.

      JD Fields points to several cases in which the courts of this

Commonwealth have held expert testimony was required to assist the trier

of fact.   In Electron Energy Corp. v. Short, 597 A.2d 175 (Pa. Super.

1991), affirmed, 618 A.2d 395 (Pa. 1993), this Court held that expert

testimony was required in a breach of contract action in order to show that

there was a breach of “a duty to design a [heating and cooling] system up to

reasonable professional standards[.]” Id. at 180. JD Fields also points to

                                    - 12 -
J-A07041-15


the Commonwealth Court’s decision in Tennis v. Fedorwicz, 592 A.2d 116

(Pa. Cmwlth. 1991) in which it concluded that expert testimony was

“indispensable for proving that the road was negligently designed.”4 Id. at

117.

       In   this   case,   Independent         presented   the   testimony   of   Arthur

Klajnowski. Before Klajnowski began his testimony, the trial court cautioned

counsel that Klajnowski was not to give any expert opinion, but rather “[h]e

can only talk about facts, what he actually saw on the job.” N.T., 3/24/14,

at 48. Klajnowski had been employed with the local pile drivers’ union for

27 years.      Id. at 50.       Klajnowski worked on this particular job with

Independent and he explained the difficulties he faced working with this

sheet piling on this specific job.

              Q:     Can you describe for the jury what the problem
                     is that you experienced on this job?

              A:     The sheet piling would not go together. It
                     would not run. Meaning -- by run, I mean
                     when you drop it, it is supposed to go down to
                     the bottom. It wasn’t doing that.

              Q:     When you drop it, describe for the jury when
                     you drop it.


____________________________________________
4
  We note that “[t]his Court is not bound by decisions of the Commonwealth
Court. However, such decisions provide persuasive authority, and we may
turn to our colleagues on the Commonwealth Court for guidance when
appropriate.” Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super.
2010) (citations omitted), appeal denied, 12 A.3d 371 (Pa. 2010).



                                          - 13 -
J-A07041-15


           A:   With the crane. You have the crane and let
                them come down on it. They are supposed to
                slide together.

                                     …

           Q:   What did you have to do to deal with the
                difficulty in sliding these pieces together?

           A:   We actually had to get an air tugger and burn
                holes in the bottom of the sheet, hook them to
                the template and drag them down.

           Q:   What is an air tugger?

           A:   It is actually like a chain pull. It is a chain with
                hooks on either end powered by air that turns
                and pulls the sheet piling down.

                                     …

           Q:   Did you do anything else? Did you have to do
                anything else besides use an air tugger?

           A:   Yes. They actually greased the sheets first and
                then they decided to use soap on them to try
                to get them to slide.

           Q:   Did that help?

           A:   Not really.

           Q:   Did you try anything else other using an air
                tugger and greasing or soaping the channels?

           A:   We used a vibratory hammer that you’re
                supposed to use to drive the sheets down once
                they are in. We used -- looks like a hairpin.
                That’s what we call it. It is just weight to get
                on top of the sheet and try to push it with that.

Id. at 55-59.




                                   - 14 -
J-A07041-15


     Independent also called Michael Pape, its foreman on this project, to

testify to the sheet piling and the problems that he encountered.

           Q:    Tell us what you understand sheet piling to be.

           A:    It is an interlocking system for whatever kind
                 of work, shoring or dirt jobs, cofferdams or
                 whatever need be.

                                     …

           Q:    Tell us very succinctly the problem with the
                 sheet piling on this project.

           A:    The sheet piling wouldn’t go together.

           Q:    What solutions did you try to employ to solve
                 that?

           A:    We cut the tips of the sheet piling that was
                 already instituted in the river. We cut a notch
                 out in the sheet piling that we are going to
                 bring into the river, we do cut a notch out to
                 try to get it going and it catch the notch where
                 you already have a couple inches going in
                 there and we would soap it up with a lubricant
                 to try to get it to slide together.

           Q:    Are you on site when you removed the sheet
                 piling in this case?

           A:    Yes.

           Q:    Were there any problems removing the sheet
                 piling from the river?

           A:    Yes.

           Q:    What were the problems?

           A:    We couldn’t get them -- some of them would
                 pull apart and we had trouble. You go to pull
                 one out and you would be pulling three or four

                                   - 15 -
J-A07041-15


                    sheets at one time to get them out, so we got
                    -- instead of trying to separate them and get
                    them out, we would swing them off the river
                    and lay them on the ground and try to pull
                    them apart with an excavator so we could get
                    them on the truck and load them up.

              Q:    Had you had to use excavators to pull them
                    apart on a prior sheet piling project that you
                    worked on?

              A:    No. We slid them apart.

Id. at 72, 89-90.

      Here, the trial court concluded that expert testimony was not required

in this case based on the following.

                    [The trial court] heard nothing prior to or
              during the trial to convince the [trial] court that the
              jury would need the assistance of an expert with the
              concept of two pieces of sheet metal not fitting
              together.     Nor did [the trial court] hear any
              testimony from either side that sounded too highly
              technical or beyond a layperson’s understanding.

                     The case sub judice was not a professional
              malpractice action or complex products liability
              matter involving complex language or techniques
              necessitating opinions proffered by an expert, nor
              does the instant case involve a design defect of a
              technical nature. This cause of action was merely to
              determine whether the product supplied by [JD
              Fields] met the representations made by [JD Fields],
              i.e., that the sheet piling supplied by [JD Fields]
              allowed for adequate “free play” as promised.

Trial Court Opinion, 10/29/14, at 7-8.

      After careful review, we agree with the trial court’s reasoning and

conclusion.     Unlike Electron Energy Corp. and Tennis there was no


                                       - 16 -
J-A07041-15


requirement that the jury needed to find that JD Fields breached a duty of

care or that the sheet piling had a design defect. As Independent argues, it

does not matter why the sheet piling did not fit together as promised, just

that it did not do so. Independent put forth factual evidence in the form of

testimony from Klajnowski and Pape as to what occurred with this particular

shipment of sheet piling on this specific construction job. This did not cross

into the realm of impermissible expert opinion under Rule 702, nor was it

improper lay opinion under Rule 701. Rather, Klajnowski and Pape testified

to what they observed personally regarding this product on this job, as a

matter of fact, not as a matter of opinion.5            Cargnoni testified that he

expected to install 15 to 20 piles in an eight-hour shift, this answer was

based on his experience, and was his estimate for this project.               See

generally N.T., 3/24/14, at 162.               Klajnowski testified, based on his

experience, that one could put 158 sheets in per day. Id. at 63. Based on




____________________________________________
5
  JD Fields highlights one instance where Klajnowski stated that the sheet
piling was “supposed to fit together[.]” N.T., 3/24/14, at 55. However, the
record reveals that JD Fields immediately objected, the trial court sustained
JD Fields’ objection, and JD Fields requested no further relief from the trial
court. Id. at 56. As the trial court ruled in JD Fields’ favor on this specific
instance, it cannot complain about it on appeal. See generally Coffey v.
Minwax Co., Inc., 764 A.2d 616, 622 (Pa. Super. 2000). In its brief, JD
Fields complains that Klajnowski gave expert testimony when he stated that
other factors did not cause the problems they had with the sheet piling. JD
Fields’ Brief at 32; N.T., 3/24/14, at 61. However, we note JD Fields did not
object to this question, thus waiving the issue on appeal. See id.



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J-A07041-15


these considerations, we conclude the trial court did not abuse its discretion

with regard to these issues. See Phillips, supra.

         Finally, we elect to address JD Fields’ fourth and fifth issues together,

as they pertain to the damage awards in this case. In its fourth issue, JD

Fields    argues   that   the   jury   should    have   awarded   damages   on    its

counterclaim in the amount of $104,547.51.              JD Fields’ Brief at 38.   It

argues that because the parties stipulated to the existence of the contract,

which contained a purchase price of $104,547.51, and Independent “offered

no evidence to discount the amount of damages cause[d] to JD Fields by

[Independent’s] refusal to pay the invoice[,]” JD Fields should have been

awarded the invoice amount in full. Id. at 38-39. JD Fields also argues that

it is entitled to prejudgment interest at the rate of six-percent per annum

beginning on April 8, 2012. Id. at 41. Finally, in its fifth issue, JD Fields

avers that it is entitled to remittitur because the jury’s $90,875.42 award to

Independent on its claim “was neither fair nor reasonable.” JD Fields’ Brief

at 42.     JD Fields further argues that Independent “was more than made

whole for its purported and unsupported damages and put into a position

better than if the contract between the parties had been performed.” Id.

         As noted above, “[w]here an appellant’s claim arises from a challenge

to the jury’s determination of damages, our review is highly circumspect.”

Helpin, supra at 601 n.9.

               The duty of assessing damages is within the province
               of the fact-finder and should not be interfered with

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              unless it clearly appears that the amount awarded
              resulted    from    partiality,  caprice,   prejudice,
              corruption or some other improper influence.
              Generally, a verdict will not be disturbed merely on
              account of the smallness of the damages awarded or
              because the reviewing court would have awarded
              more. To support the granting of a new trial for
              inadequacy, the injustice of the verdict should stand
              forth like a beacon. So long as the verdict bears a
              reasonable resemblance to the damages proved, it is
              not the function of the court to substitute its
              judgment for that of the jury.

Epstein, supra (citation omitted).      In addition, we note our standard of

review of a denial of remittitur is whether or not the trial court abused its

discretion. Paliometros v. Loyola, 932 A.2d 128, 134 (Pa. Super. 2007)

(internal citations omitted).

      In this case, the parties appear to agree that the purchase price for

the sheet piling was $104,547.51. JD Fields’ Brief at 38; Independent’s Brief

at 13.   As noted above, Independent’s witness testified that 75% of the

sheet piling that was delivered did not fit together. N.T., 3/25/14, at 173.

JD Fields’ witness, Abbondanza, testified that 25% of the sheet piling had

this issue.     Id. at 266.     The mean and median between these two

percentages is 50%.        The jury awarded JD Fields $52,273.76 on its

counterclaim, which is 50% of the purchase price agreed to by the parties,

rounded upward to the nearest penny. See generally JD Fields’ Brief at 38;

Independent’s Brief at 13.       As the trial court noted, “the jury simply

reconciled the testimony to accept the fact that half of said sheets would not

allow for adequate ‘free play’ and awarded their damage figure accordingly.”

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Trial Court Opinion, 10/29/14, at 8.           As there is a basis for the jury’s

decision, as an appellate court, we will not substitute our judgment for the

jury or grant additur because this Court might “have awarded more.”

Epstein, supra.        In addition, we further conclude that remittitur is not

warranted. The jury’s verdict in this case found that Independent was 50%

liable for the purchase price of the sheet piling that Independent received.

Therefore, Independent did not receive a windfall as JD Fields argues, and

the jury’s verdict does not shock the conscience. We hence conclude that

the trial court did not err or abuse its discretion when it denied additur or

remittitur in this case. See id.; Paliometros, supra.

       Turning to the prejudgment interest portion of its argument, JD Fields

relies on Section 354 of the Restatement (Second) of Contracts in support of

its argument.6 JD Fields argues that it is entitled as of right to prejudgment

interest under Section 354(1) of the Restatement, as the issue in this case


____________________________________________
6
  Independent argues that JD Fields waived this issue “by failing to raise the
issue at trial, and by failing to request an instruction to the jury on the same
during the charging conference.” Independent’s Brief at 14. However, this
Court has held that “even if the issue of prejudgment interest was not
submitted to the jury, the trial court may mold the verdict to include it.”
Verner v. Shaffer, 500 A.2d 479, 482 (Pa. Super. 1984); see also
McMahon v. Caravan Refrigerated Cargo, Inc., 594 A.2d 349, 352 (Pa.
Super. 1991) (distinguishing Verner and concluding the prejudgment
interest issue was waived because, unlike Verner, “the issue of pre-
judgment interest was not raised in appellee’s post-trial motions[]”). JD
Fields raised the issue of prejudgment interest in its post-trial motion. JD
Fields’ Post-Trial Motion, 4/4/14, at ¶ 24. As a result, JD Fields has not
waived this issue.



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was a sum certain.     JD Fields’ Brief at 41.     The restatement provides as

follows.

           § 354 Interest as Damages

           (1) If the breach consists of a failure to pay a
           definite sum in money or to render a performance
           with fixed or ascertainable monetary value, interest
           is recoverable from the time for performance on the
           amount due less all deductions to which the party in
           breach is entitled.

                                      …

Restatement (Second) of Contracts § 354(1) (1981).            Furthermore, our

Supreme Court has explained the issue of prejudgment interest in the

following terms.

           In adopting Section       354     [of   the   Restatement
           (Second)], we stated:

                   For over a century it has been the law of this
                   Commonwealth that the right to interest upon
                   money owing upon contract is a legal right.
                   That right to interest begins at the time
                   payment is withheld after it has been the duty
                   of the debtor to make such payment.

           Fernandez[v. Levin, 548 A.2d 1191, 1193 (Pa.
           1988)].

                 With regard to prejudgment interest, we have
           explained, “[i]nterest has been defined ‘to be a
           compensation allowed to the creditor for delay of
           payment by the debtor,’ and is said to be impliedly
           due ‘whenever a liquidated sum of money is unjustly
           withheld.’” School Dist. of City of Carbondale v.
           Fidelity & Deposit Co. of Maryland, 346 Pa. 491,
           492, 31 A.2d 279, 280 (1943) (citations omitted).
           However,    “as    prerequisites  to  running    of
           prejudgment interest, the debt must have been

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           liquidated with some degree of certainty and the
           duty to pay it must have become fixed.” Id. at 493,
           31 A.2d at 280; Restatement (Second) of Contracts
           § 354(1) (“If the breach consists of a failure to pay a
           definite sum of money or to render a performance
           with fixed or ascertainable monetary value, interest
           is recoverable.”). Thus, even where the terms of a
           contract do not expressly provide for the payment of
           interest, a nonbreaching party has a legal right to
           recover interest, as damages, on a definite sum
           owed under the contract.

                  Furthermore, as is the case with an award of
           contractual interest, an award of prejudgment
           interest under Section 354(1) is not subject to a
           court’s discretion. See id.; Dox Planks[of Ne. Pa.
           v. Ohio Farmers Ins. Co., 621 A.2d 132, 136 (Pa.
           Super. 1993)] (citing Fernandez, and holding a
           successful plaintiff in a contract case is entitled to
           prejudgment interest at the statutory rate as a
           matter of right); Peterson v. Crown Fin. Corp.,
           661 F.2d 287, 293 (3rd Cir. 1981) (applying
           Pennsylvania law and holding that a “court is thus
           obligated to award ‘simple interest at the statutory
           legal rate’ only in those circumstances in which the
           plaintiff proves that the defendant breached a
           promise to pay ‘a definite sum of money’”).

TruServ Corp. v. Morgan’s Tool & Supply Co., Inc., 39 A.3d 253, 263-

264 (Pa. 2012) (emphasis in original; footnotes omitted).

     Independent counters that JD Fields’ reading of Section 354 is flawed

and offers the following illustration from the comment to Section 354.

           9. A contracts to build a bungalow for B for $30,000.
           After completion but before B has paid the final
           $6,000, B occupies the bungalow but refuses to pay
           the balance because the workmanship and materials
           are unsatisfactory. A sues B and recovers only
           $4,000 on the ground that B’s claim entitles him to
           compensation in the amount of $2,000. The sum of
           $4,000 was not sufficiently definite to give A a right

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              to interest on it. The allowance of interest is within
              the discretion of the court. The fact that A was
              himself in breach will be considered.

Independent’s Brief at 15, quoting Restatement (Second) of Contracts

§ 354, cmt.

      In our view, this illustration is much like the instant case.    Here, JD

Fields agreed to provide sheet piling to Independent for $104,547.51. After

receiving said sheet metal, Independent refused to pay the invoice because

it viewed the sheet metal as unsatisfactory. JD Fields filed a counterclaim

against Independent seeking the amount due under the original contract. JD

Fields was awarded 50% of their original contract or $52,273.76. Following

the Restatement, we agree with Independent that this amount “was not

sufficiently definite to give [JD Fields] a right to interest on it.” Restatement

(Second) of Contracts § 354, cmt. As a result, JD Fields did not have a legal

right to prejudgment interests under Section 354(1), as there was not a sum

certain in this case. See id.; TruServ Corp., supra at 264 n.12. Based on

these considerations, we conclude JD Fields is not entitled to relief on its

fourth or fifth issues.

      Based on the foregoing, we conclude all of JD Fields’ issues on appeal

are devoid of merit. Accordingly, the trial court’s August 4, 2014 judgment

entered in favor of Independent is affirmed.

      Judgment affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2015




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