J-A06009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

BELGRAVIA CONDOMINIUM                       IN THE SUPERIOR COURT OF
ASSOCIATION,                                      PENNSYLVANIA

                        Appellee

                   v.

1811 BELGRAVIA ASSOCIATES

Appeal of: O’Donnell & Naccarato, Inc.           No. 385 EDA 2014



          Appeal from the Judgment entered November 27, 2013
           In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): May Term, 2010, No. 00946




BELGRAVIA CONDOMINIUM                       IN THE SUPERIOR COURT OF
ASSOCIATION,                                      PENNSYLVANIA

                        Appellee

                   v.

1811 BELGRAVIA ASSOCIATES, L.P., ET
AL.

Appeal of: O’Donnell & Naccarato, Inc.           No. 446 EDA 2014



          Appeal from the Judgment entered November 27, 2013
           In the Court of Common Pleas of Philadelphia County
            Civil Division at No(s): May Term, 2010, No. 00946


BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.                       FILED AUGUST 13, 2015
J-A06009-15



        A jury entered a verdict of $350,000.00 against O’Donnell &

Naccarato, Inc. (“Engineer”) in this civil action.   Following denial of post-

verdict motions and entry of judgment, Engineer filed two appeals which this

court has consolidated for purposes of disposition.1         For the reasons

articulated below, we affirm the judgment at 385 EDA 2014 and quash the

appeal at 446 EDA 2014.

        The Belgravia Building is a century-old building at 1811-19 Chestnut

Street in Philadelphia. In 2006, a developer, 1811 Belgravia Associates, and

other related parties2 started to convert the building into a condominium.

Also in 2006, in order to comply with the Uniform Condominium Act

(“UCA”),3 the Belgravia defendants hired Engineer to inspect the building

and report its findings. Engineer is a professional engineering firm that is in

the business of providing, among other things, structural engineering and

design services.

        In 2010, Belgravia Condominium Association (“Association”) filed a

civil action against Engineer and the Belgravia defendants.        Association

alleged that Engineer was liable for professional negligence and breach of

____________________________________________


1
  Order dated May 19, 2014 (consolidating Engineer’s two appeals sua
sponte pursuant to Pa.R.A.P. 513).
2
  We refer to all defendants other than Engineer as the “Belgravia
defendants”.
3
    68 Pa.C.S. § 3101 et seq.



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the UCA on the grounds that Engineer’s inspection and report fell below the

standard of care for the engineering profession, and Engineer defrauded

purchasers of condominium units by revising its draft report to conceal

defects in the condition of the building.

        At the close of Association’s case-in-chief, Engineer moved for a

compulsory nonsuit, arguing that its work was not negligent, and that it

complied with the UCA by identifying all visible defects.4 The trial court did

not formally deny Engineer’s motion on the record, but it is implicit from the

record that the court denied the motion because Engineer went on to

present its own witnesses. Engineer did not move for a directed verdict at

the close of evidence.

        The verdict slip directed the jury to answer whether Engineer

“breached the standard of care applicable to professional engineers”, and

whether “[Engineer’s] breach of the standard of care caused Association

harm?”5 The jury answered “yes” to both questions and awarded $350,000

in compensatory damages to Association.6


____________________________________________


4
    N.T., 6/14/13, at 22-31.
5
    N.T. 6/19/13, at 12-13 (questions 1 and 2 on page 2 of verdict slip).
6
  Id. The jury also held the Belgravia defendants liable for $3,800,000 in
compensatory damages and $900,000 in punitive damages. The Belgravia
defendants later settled with Association, leaving Engineer as the only
appellant in these appeals.



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          Engineer filed timely post-verdict motions seeking judgment n.o.v.,

which the court denied, followed by a praecipe for entry of judgment against

itself.     Engineer then filed two appeals, which we have consolidated.

Without ordering Engineer to file a Pa.R.A.P. 1925(b) statement, the trial

court filed a Pa.R.A.P. 1925(a) opinion.

          Before turning to Engineer’s arguments, we explain why we quash its

second appeal.        On December 12, 2013, Engineer filed its first notice of

appeal following entry of judgment against itself but before entry of a final

order relating to the Belgravia defendants. On January 2, 2014, the court

entered an order marking Association’s action against the Belgravia

defendants settled, discontinued and ended.             This order disposed of all

remaining claims and parties and made Engineer’s first appeal ripe for

disposition.       Pa.R.A.P. 905(a)(5) (“a notice of appeal filed after the

announcement of a determination but before the entry of an appealable

order shall be treated as filed after such entry and on the day thereof”).

          On January 30, 2014, Engineer filed a second notice of appeal.        It

appears that Engineer filed this appeal as a protective measure because it

was uncertain whether its first appeal was timely. Because Engineer’s first

appeal is ripe for disposition under Pa.R.A.P. 905, we quash its second

appeal as technically unnecessary.          Pa.R.A.P. 1972(7) (appeal subject to

quashal for “any … reason appearing on the record”).

          Engineer raises three issues in its first appeal:


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            The trial judge erred by not applying the economic
            loss doctrine to bar claims for what are solely
            economic losses.

            The trial judge erred in denying [Engineer’s] posttrial
            motion for jnov in a case where: [Association’s]
            experts could not state what defects existed at the
            time of the inspection; recommendations made by
            the inspecting engineer were not followed by the
            owners; and no analysis was offered on how the
            allegedly improper inspection caused any damages.

            [Engineer] did not waive its right to appeal the
            denial of a post-trial motion seeking jnov.

Brief For Appellant, pp. 13, 14, 25.

      In its first argument, Engineer contends that it is entitled to judgment

n.o.v. because the economic loss doctrine precludes Association’s claims of

monetary damage.      The economic loss doctrine provides that no cause of

action exists for negligence that results solely in economic damages

unaccompanied by physical injury or property damage. Adams v. Copper

Beach     Townhome       Communities,        L.P.,   816    A.2d      301,   305

(Pa.Super.2003).   Engineer waived this argument by failing to move for a

compulsory nonsuit or directed verdict on this issue during trial.

      A motion for judgment n.o.v. is a post-trial motion which requests the

trial court to enter judgment in favor of the moving party. There are two

bases on which the court can grant judgment n.o.v.:

            [O]ne, 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


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J-A06009-15


              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.

Polett   v.        Public    Communications,         Inc.,    83   A.3d    205,     212

(Pa.Super.2013).          In an appeal from the trial court’s decision to deny

judgment n.o.v.,

              we must consider the evidence, together with all
              favorable inferences drawn therefrom, in a light most
              favorable to the verdict winner. Our standard 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.

Id. at 211.

     To preserve a motion for judgment n.o.v. for appeal, the appellant

must either move for a compulsory nonsuit or a directed verdict during trial.

The most comprehensive discussion of this point is in Haan v. Wells, 103

A.3d 60 (Pa.Super.2014), where this Court held that the Haans waived their

challenge     to    the   sufficiency   of   the   evidence   underlying   the    Wells’

counterclaim by failing to move for a compulsory nonsuit or directed verdict

during trial. We reasoned:

              Regarding the Haans’ sufficiency challenge, our
              review of the record demonstrates that the Haans
              did not raise such a claim by oral or written motion

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          with the trial court either for a nonsuit or a directed
          verdict. In Bennyhoff v. Pappert, 790 A.2d 313
          (Pa.Super.2001), we set forth the following with
          regard to preserving a sufficiency claim:

                Pursuant to Pa.R.C.P. 230.1(c), a trial
                court may enter a nonsuit in favor of any
                or all [ ] defendants, if, at the close of
                the plaintiff’s case against all defendants,
                the plaintiff has failed to establish a right
                to relief. ‘A motion for compulsory
                nonsuit allows a defendant to test the
                sufficiency of a plaintiff’s evidence.’
                Harnish       v.   School     District     of
                Philadelphia, [] 732 A.2d 596, 598
                (Pa.1999). A sufficiency of the evidence
                claim may also be raised through a
                motion for a directed verdict. Lear, Inc.
                v. Eddy, 749 A.2d 971 (Pa.Super.2000).

          Bennyhoff, 790 A.2d at 317 (citation modified).
          Because the appellant in Bennyhoff failed to
          request either a nonsuit or a directed verdict, we
          concluded that the appellant’s sufficiency challenge
          was waived. Id.

          In Estate of Hicks v. Dana Companies, LLC, 984
          A.2d 943 (Pa.Super.2009) (en banc), an en banc
          panel of this Court noted that the appellants in an
          asbestos case had preserved a challenge to the
          sufficiency of the evidence by making an oral motion
          for a directed verdict at the close of the evidence.
          Id. at 951 n. 3 (citing Hayes v. Donohue Designer
          Kitchen Inc., 818 A.2d 1287, 1291 n. 4
          (Pa.Super.2003)) (stating ‘cases indicate that in
          order to preserve the right to request a JNOV post-
          trial[,] a litigant must first request a binding charge
          to the jury or move for a directed verdict at trial’).

          Finally, our Commonwealth Court has recognized,
          and adopted, this Court’s adherence to the principle
          that sufficiency challenges must first be raised before
          the trial court by a motion for a directed verdict. In
          Com. Dept. of Gen. Servs. v. U.S. Mineral Prods.
          Co.,    927    A.2d    717   (Pa.Cmwlth.2007),      the

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J-A06009-15


            Commonwealth Court, citing Bennyhoff and
            Thomas Jefferson Univ. v. Wapner, 903 A.2d
            565, 570 (Pa.Super.2006), explained that ‘our
            Superior Court requires a motion for directed verdict
            during trial as a prerequisite to a post-trial motion
            for JNOV based on the state of the evidence.’ U.S.
            Mineral     Prods.,   927    A.2d    at   725.   The
            Commonwealth      Court    adopted    our   approach
            ‘[b]ecause this approach has the salutary effect of
            submitting the issue to the trial judge for initial
            evaluation during trial, when the proofs are still
            fresh, and is consistent with past practice and with
            the current rule governing post-trial practice.’ Id.
            Consequently, the Commonwealth Court limited its
            appellate review in that case to the appellants’
            challenge to the weight of the evidence, and found
            any challenges to the sufficiency of the evidence to
            be waived. Id.

            Hence, it is clear that, in order to preserve a
            challenge to the sufficiency of the evidence, the
            Haans first were required in this non-jury trial to
            move either for a nonsuit or a directed verdict.
            See Youst v. Keck’s Food Serv., Inc., 94 A.3d
            1057, 1071 (Pa.Super.2014). The Haans did not do
            so. Consequently, any of the Haans’ challenges
            purporting to challenge the sufficiency of the
            evidence offered to prove the Wells’ ownership of
            Parcel No. 2 are waived.

Haan, 103 A.3d at 67-68 (footnotes omitted) (emphasis added).

     Here, Engineer did not move for a directed verdict at the close of

evidence.   And while it moved for a compulsory nonsuit at the close of

Association’s case, it neglected to raise any economic loss doctrine argument




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J-A06009-15


at that time.7      Consequently, Engineer has waived its right to raise the

economic loss doctrine in this appeal. Haan, supra.

        Engineer claims incorrectly that it preserved its motion for judgment

n.o.v. on the economic loss doctrine by raising it in preliminary objections

and then again in post-verdict motions.          Under Haan, however, Engineer

was required to move for a compulsory nonsuit or directed verdict to give

the trial court the opportunity to decide whether the trial evidence was

sufficient to go to the jury.           The fact that Engineer filed preliminary

objections on the economic loss doctrine is of no moment, because

preliminary objections only test whether the complaint states a valid cause

of action, not whether the trial evidence is sufficient to go to the jury.

        Meeting House Lane, Ltd. v. Melso, 628 A.2d 854 (Pa.Super.1993),

the decision Engineer cites for the proposition that it preserved the economic

loss argument for appeal, is not on point. The trial court in Melso held that

the appellant waived all issues in his post-trial motion because the motion

failed to specify where he had raised the issues prior to verdict. This Court

held a mere defect in form in post-verdict motions did not result in waiver

because the appellant raised all issues in pretrial proceedings or during trial.

Id., 628 A.2d at 857. The present case involves a fundamental trial error by

counsel for Engineer, not a mere technical defect in the form of post-verdict
____________________________________________


7
    N.T., 6/14/13, at 22-31.




                                           -9-
J-A06009-15


motions: counsel neglected to argue during trial that the trial evidence was

insufficient as a matter of law under the economic loss doctrine. Counsel’s

omission results in waiver under Haan.

       In its second argument on appeal, Engineer contends that the trial

court erred in denying judgment n.o.v. for four reasons: (1) Association

made no showing that the defects in the building were visible; (2)

Association’s experts did not testify with the requisite degree of engineering

certainty; (3) there was no proof tying the relationship between Engineer’s

conduct and the amount of money damages caused to Association; and (4)

Engineer’s conduct in 2006 was too remote in time to constitute the

proximate cause of the damages, and there were other intervening causes of

harm, such as other inspections conducted after Engineer’s failure to

uncover defects, and Association’s failure to perform proper maintenance

after 2006.8

       Subpart I is a claim that Association failed to prove that Engineer

breached the applicable standard of care. Engineer contends that the proper

standard of care is a duty to discover visible defects that is embodied in

section 4-106 of the UCA, codified at 68 Pa.C.S. § 3404. Brief For Appellant,

p. 15.   This argument is unconvincing for two reasons: the UCA does not

____________________________________________


8
  Because Engineer has grouped these four issues under one heading in its
brief, we will refer to them as “Subpart I”, “Subpart II”, “Subpart III” and
“Subpart IV”.



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J-A06009-15


provide the applicable standard of care for Engineer, and even if the UCA

provides the correct standard, the evidence demonstrates that Engineer

breached it.

      68 Pa.C.S. § 3404 provides in relevant part:

               (a)   The   public   offering  statement   of    a
                     condominium containing a conversion building
                     must contain …

                     (1) A statement by the declarant, based on a
                     report prepared by an independent registered
                     architect or professional engineer:

                     (i) describing the age and present condition
                     and, if known or reasonably ascertainable, the
                     dates of construction, installation and major
                     repairs of all structural components and
                     mechanical     and    electrical   installations,
                     including, but not limited to, roofs, plumbing,
                     heating, air conditioning and elevators,
                     material to the use and enjoyment of the
                     condominium; and

                     (ii) describing the results of the inspection of
                     the units and common elements required
                     pursuant to section 3411(c) (relating to
                     warranty against structural defects) for visible
                     conditions that adversely affect the health or
                     safety of residential occupants. The statement
                     should also state the extent to which the
                     report by the architect or professional engineer
                     is based upon a visual inspection of the units
                     as well as the common elements.

68 Pa.C.S. § 3404 (emphasis added).             The UCA defines “declarant” as

follows:




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                 (1) If the condominium has been created,
                 ‘declarant’ means:

                 (i) any person who has executed a declaration,
                 or an amendment to a declaration to add
                 additional real estate, other than persons
                 holding interests in the real estate solely as
                 security for an obligation, persons whose
                 interests in the real estate will not be conveyed
                 to unit owners, or, in the case of a leasehold
                 condominium, a lessor who possesses no
                 special declarant rights and who is not an
                 affiliate of a declarant who possesses special
                 declarant rights; or

                 (ii) any person who succeeds under section
                 3304 (relating to transfer of special declarant
                 rights) to any special declarant rights.

                 (2) If the condominium has not yet been
                 created, ‘declarant’ means any person who
                 offers to dispose of or disposes of his interest
                 in a unit to be created and not previously
                 disposed of.

                 (3) If a declaration is executed by a trustee of
                 a land trust, ‘declarant’ means the beneficiary
                 of the trust.

68 Pa.C.S. § 3103.       A “declaration” is a document that creates the

condominium and defines its basic elements, such as the number of units,

boundaries, common elements, etc. 68 Pa.C.S. § 3205 (contents of

declaration).

      The standards prescribed in section 3404 only apply to declarants, i.e.,

signers of the declaration.   Engineer is not itself a “declarant”; it merely

provides a report to the declarant about the condition of the condominium.

Thus, the standards prescribed under section 3404, including the duty to

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report “visible conditions that adversely affect the health or safety of

residential occupants,” does not apply to Engineer.

        Assuming arguendo that the “visible condition” standard applies to

engineers, Association presented evidence that Engineer overlooked visible

defects in the building and failed to mention these defects in its 2006 report.

Patrick McCoy, one of Association’s experts, testified that Engineer (1) failed

to have a licensed engineer perform a sufficient visual assessment and write

the report,9 (2) failed to investigate cracks in the mortar joints which were

visible in 2006 and would have led to discovery of distress in the facade,10

(3) failed to observe visibly corroded iron cast balconies on top of terra

cotta, missing mortar joints and severe deterioration in the mortar,11 (4)

failed to comply with the UCA by not reviewing public records of the

building,12 (5) failed to identify issues with rainwater conductors that existed

in 2006 and which caused severe water damage and corrosion,13 and (6)

deleted or altered portions of its draft report to cover up these defects.14

____________________________________________


9
    N.T., 6/12/13 (PM), at 31-32, 42-43.
10
     Id. at 41-42.
11
     Id. at 31-32.
12
     Id. at 44-45.
13
     Id. at 33-35.
14
     Id. at 63-64.
(Footnote Continued Next Page)


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        McCoy testified that Engineer overlooked visible safety hazards during

its 2006 inspection and neglected to mention them in its report.     According

to McCoy, (1) Engineer failed to notice that rain water conductors were

failing and causing corrosion on the steel deck15; (2) Engineer did not notice

“severe deterioration” to the balconettes that “was the same then [in 2006]

as when [McCoy] did [his] inspection in 2011, and … some of those joints

were opened up and … there was already cracking and mortar that was

missing”16; (3) Engineer failed to note the lack of maintenance in any

facades or windows from 1983 to 2006, even though the trim around the

windows was “completely rotten”17; and (4) Engineer ignored severe

corrosion on the portico in front of the building in 2011.18

        Thus, even if the “visible condition” standard was the proper test,

Association presented sufficient evidence to satisfy it.19

                       _______________________
(Footnote Continued)


15
    Id. at 34-35. McCoy testified that he “believe[d]” that a licensed
professional engineer would have observed this defect and included it in its
report.    Id. at 35.    The verb “believe” did not make his testimony
insufficient, because he later testified that all of his opinions were within a
reasonable degree of engineering certainty. Id. at 70-71.
16
   Id. at 41-42.
17
     Id. at 49-51.
18
     Id. at 55-56.
19
   Engineer not only fails to convince us that section 3404 is the proper
standard of care, but he also fails to identify the proper standard or analyze
the evidence under the proper standard. Therefore, Engineer has waived
(Footnote Continued Next Page)


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        In Subpart II, Engineer claims that Association’s experts failed to

testify with the requisite degree of engineering certainty. Engineer waived

this argument by failing to make it at the compulsory nonsuit or directed

verdict stages. Haan, 103 A.3d at 67-68. Even if Engineer preserved this

issue, two of Association’s experts testified that their opinions were within a

reasonable degree of certainty in their respective fields.20

        Engineer argues in Subpart III that Association failed to prove any

relationship between Engineer’s conduct and the amount of money damages

caused to Association.          Engineer disregards McCoy’s testimony that the

deletions and alterations to the draft report caused the following damages:

$287,000 for elevator repairs, $41,448 for providing an adequate accessible

entrance, $20,000 to repair steel platform and stairs, and $15,000 to repair

corroded beams and cracked concrete in the basement.21             McCoy also

observed that Association would incur $228,808.30 to repair the roof and

$65,600 to repair structural defects in the building.22        Another expert,

                       _______________________
(Footnote Continued)

the argument that the evidence fails to satisfy the correct standard of care.
Owens v. Mazzei, 847 A.2d 700, 705-06 (Pa.Super.2004) (issues waived
due to lack of argument in appellate brief).

20
     N.T., 6/12/13 (PM), at 70-71 (McCoy), 82-83 (Nevel).
21
     Id. at 67-70.
22
     Id. at 27.




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William Payne, gave exhaustive testimony about the damage caused to the

building,23 and testified that Association incurred $400,000 in hazard

mitigation expenses and $900,000 for waterproofing and aesthetic repairs. 24

        In Subpart IV, Engineer contends that its conduct in 2006 was not the

proximate cause of Association’s harm, because Engineer’s conduct was too

remote in time, and there were other intervening causes of harm, such as

other inspections conducted after Engineer’s failure to uncover defects, and

Association’s failure to perform proper maintenance after 2006.             Engineer

has waived this argument by making a different argument on appeal than it

made below. Engineer’s lone causation argument at the nonsuit stage was

that Association was contributorily negligent because it failed to review

public documents (a Deed of Façade Easement and title report) that would

have alerted Association to any problems.              Association, Engineer argued,

“[was] on constructive or actual notice of the deed of façade easement,” but

from 2006 onward, “nobody decided to follow the … mandates of the

easement” with “constant inspections, constant vigilance.”25 In this Court,

however,      Engineer       argues      that      Association   ignored   Engineer’s

recommendations for repair work/maintenance, a separate and distinct

____________________________________________


23
     N.T. 6/13/13, at 17-70.
24
     N.T. 6/13/13, at 17.
25
     N.T. 6/14/13, at 25, 26.



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matter from Assocation’s failure to follow the easement. Because Engineer

failed to argue at the compulsory nonsuit stage that Association ignored its

recommendations for repair work/maintenance, it waived this point on

appeal. Haan, 103 A.3d at 67-68.

        In its third and final argument on appeal, Engineer contends that it did

not waive its right to appeal the denial of a post-trial motion seeking

judgment n.o.v.      We have addressed this issue above in the foregoing

discussion by identifying several issues that Engineer waived by failing to

raise them at the compulsory nonsuit or directed verdict stages of trial.

        For these reasons, the trial court properly denied Engineer’s post-trial

motions seeking judgment n.o.v.

        Judgment affirmed at 385 EDA 2014.        Appeal quashed at 446 EDA

2014.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/13/2015




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