J-A18021-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PITNEY ROAD PARTNERS, LLC T/D/B/A               IN THE SUPERIOR COURT OF
REDCAY COLLEGE CAMPUSES I                             PENNSYLVANIA

                          Appellant

                     v.

MURRAY ASSOCIATES ARCHITECTS, P.C.

                          Appellee                  No. 2253 MDA 2013


           Appeal from the Order Entered on November 19, 2013
            In the Court of Common Pleas of Lancaster County
                     Civil Division at No.: Cl-06-01429


BEFORE: LAZARUS, J., WECHT, J., and MUSMANNO, J.

MEMORANDUM BY WECHT, J.:                      FILED SEPTEMBER 18, 2014

     Pitney Road Partners, LLC t/d/b/a Redcay College Campuses I



motion for summary judgment filed by Murray Associates Architects, P.C.



held that an arbitration decision between Pitney and a third party, Warfel



a matter of law under the doctrine of collateral estoppel.       After careful

review, we affirm.



November 19, 2013:

     This litigation arises as a result of the construction of a building
     on the Lancaster campus of [Harrisburg Area Community College
J-A18021-14


      discussions with Warfel to construct a classroom building on land
      owned by Pitney and leased to HACC. Warfel contracted with
      Murray, an architectural firm that had worked with HACC in the
      past, to provide the architectural services for constructing the
      new building.    Under the [oral] agreement, Murray was to
      prepare plans, drawings and specifications for the project known
      as the Phase II Expansion Project.

      Pitney met with Warfel and Murray numerous times in 2003
      during which Pitney claims it told them that the new building
      should be identical to the existing building on the property.
      Pitney alleged Warfel and Murray represented that the new
      building would look the same, a representation upon which
      Pitney claims it relied.


      plans about the design of the new building were false and
      misleading and, as a result, a significant number of changes had
      to be made which greatly increased the cost to Pitney.
      Specifically, Pitney claims over 50 windows, brick banding, and a
      notch for a stairwell had to be added to the new building to
      make it conform to the design of the existing building.

      Pitney also alleges Warfel and Murray falsely represented that
      the HVAC system was complete and would fit in the building as it
      was designed. In fact, crucial pieces of equipment were omitted
      and there was not enough space left under the trusses of the
      roof to fit the equipment. As a result, [] substantial reworking of
      the roof and duct work was required. Pitney further claims that

      could be constructed with brick, but it needed steel support
      beams to keep from collapsing.

      Pitney alleges Warfel and Murray knew Pitney relied upon the
      plans prepared by Murray in determining its budget for the

                                                            project was
      delayed[,] resulting in lost rental income, and Pitney incurred
      additional costs to correct the problems with the design.

                                                     -3 (footnote and record

citations omitted).




                                     -2-
J-A18021-14



      Pitney refused to pay Warfel because of the construction delays, and

Warfel could not pay its subcontractors. Warfel filed suit against Pitney to

recover the amounts owed, and Pitney filed a counterclaim to recover its

increased costs due to the design errors made by Murray, including the

HVAC system, the facade, and the windows and brick banding. Id. at 3-4.

      Warfel and Pitney proceeded to binding arbitration, and after ten days

of testimony, on May 12, 2006, the arbitration panel rendered an award in

favor of Warfel for $5,971,010.

and setoffs of Pitney Road Partners, LLC t/d/b/a Redcay College Campuses I,

are denied in their entirety. . . . The award is in full settlement of all claims

and counterclaims submitted to this Arbitration.       All claims not expressly



      Pitney filed motions to vacate or modify or correct the arbitration

award.   Additionally, on June 21, 2006, Pitney filed the instant complaint

against Warfel, HACC, and Murray.       Meanwhile, on February 9, 2007, the




because, in its complaint, Pitney had failed to state a cause of action against

HACC. Pitney did not appeal this determination or amend its complaint to

state a claim against HACC. On August 17, 2007, the parties entered into a

formal settlement agreement by which Pitney dismissed its claims in the



On November 26, 2007, Pitney discontinued this action against Warfel.

                                      -3-
J-A18021-14



      On March 22, 2013, Murray, the remaining defendant, filed a motion

for summary judgment in which Murray a

precluded by collateral estoppel and barred by the settlement agreement

between Pitney and Warfel.      Pitney responded on June 24, 2013, and on



judgment, concluding that Murray was entitled to judgment as a matter of

law because Pitney was collaterally estopped from relitigating the claims that

were settled by the arbitration award. Pitney timely appealed on December

19, 2013, and filed a Rule 1925(b) statement on January 10, 2014.            See

Pa.R.A.P. 1925.    On February 6, 2014, the trial court entered its Rule



                                                                             the



1925(a) Opinion, 2/06/2014, at 4.

      Pitney raises the following two issues for our review, which we have

reordered for ease of disposition:

      1.                                       Statement      of   Matters

      issues Pitney is raising on appeal with sufficient specificity?

      2.    Whether the trial court erred in applying collateral estoppel
      and, specifically, in holding that the issue
      design errors was adjudicated by the arbitrators and essential to
      their decision in the Warfel v. Pitney Arbitration, thus
      precluding Pitney from litigating the issue in the Pitney v.
      Murray Lawsuit and resulting in the granting of Murr
      summary judgment motion?



                                      -4-
J-A18021-14




deeming the issues waived on appeal because Pitney failed to identify its

issues with sufficient specificity in its Rule 1925(b) statement.      We agree

with Pitney that its issues are not waived.

        Failure to comply with a Rule 1925(b) order may be considered
        by the appellate court as a waiver of all objections to the order,
        ruling or other matter complained of. Regarding vague or overly
        broad statements, this Court has also stated:

           When a court has to guess what issues an appellant is
           appealing, that is not enough for meaningful review.
           When an appellant fails adequately to identify in a concise
           manner the issues sought to be pursued on appeal, the
           trial court is impeded in its preparation of a legal analysis
           which is pertinent to those issues.

           In other words, a Concise Statement which is too vague to
           allow the court to identify the issues raised on appeal is
           the functional equivalent of no Concise Statement at all.
           While [Commonwealth v. Lord, 719 A.2d 306 (Pa.
           1998)] and its progeny have generally involved situations
           where an appellant completely fails to mention an issue in
           his Concise Statement, for the reasons set forth above we
           conclude that Lord should also apply to Concise
           Statements which are so vague as to prevent the court
           from identifying the issue to be raised on appeal.

Lineberger v. Wyeth, 894 A.2d 141, 148 (Pa. Super. 2006) (most citations

                                          is . . . tantamount to a conclusion of

                                              Commonwealth v. Laboy, 936

A.2d 1058, 1059 (Pa. 2007); see also McKeeman v. Corestates Bank,

N.A.,

Appellate Procedure apply to criminal and civil cases alike, the principles

enunciated by Lord


                                       -5-
J-A18021-14



      Here, Pitney raised the following three issues in its Rule 1925(b)

concise statement:

      a.    The [c]ourt erred in holding that there was no genuine
      issue of material fact concerning whether Murray made errors
      and omissions in its design for the project at Harrisburg Area


      b.    The [c]ourt erred in holding that Pitney was collaterally
      estopped from litigati
      errors and omissions in the present lawsuit based upon the
      outcome in the Warfel v. Pitney Arbitration.

      c.    The [c]ourt erred in holding that Murray met all five
      requirements necessary for invoking the doctrine of collateral
      estoppel, specifically: (1) that the issue decided in the prior case
      is identical to the one presented in the later case, (2) that there
      was a final judgment on the merits, (3) that the party against
      whom the plea is asserted was a party or in privity with a party
      in the prior case, (4) that the party or person privy to the party
      against whom the doctrine is asserted had a full and fair
      opportunity to litigate the issue in the prior proceeding, and (5)
      that the determination in the prior proceeding was essential to
      the judgment.

Rule 1925(b) Statement, 1/10/2014, at 1-2. Pitney therefore identified its

                                                    collateral estoppel to grant

summary judgment to Murray. Furthermore, even after finding waiver, the

trial court was able to conduct an alternative analysis, in which it stated:


      on appeal is set out in the opinion and order of November 19,

      Murray were barred by the doctrine of collateral estoppel, there
      was no need to determine whether an issue of material fact
      existed as to Murr




                                     -6-
J-A18021-14




            Lineberger, 894 A.2d at 148.

     Accordingly, the



                                           Lynn v. Nationwide Ins. Co., 70

A.3d 814, 823 (Pa. Super. 2013). Therefore, because Pitney has not waived



remaining issue.




motion   becau                                          Warfel   v.   Pitney




     Our standard of review of a grant of summary judgment is an
     abuse of discretion. Summary judgment as a matter of law may
     be had where there are no genuine issues of material fact as to a
     cause of action. Pa.R.[C].P. 1035.2. Summary judgment is
     properly granted on grounds of res judicata and/or collateral
     estoppel if there is no genuine issue of material fact and the
     pleadings, depositions, answers to interrogatories, admissions on
     file and supporting affidavits disclose that the moving party is
     entitled to judgment as a matter of law.

Robbins v. Buck, 827 A.2d 1213, 1214 (Pa. Super. 2003) (case citations

omitted).     Here, the trial court determined that Pitney was collaterally



                                    -7-
J-A18021-14



estopped from raising claims of alleged design error by Murray because of

                 cision in favor of Warfel on May 12, 2006.

     The decision to allow or to deny a prior judicial determination to
     collaterally bar relitigation of an issue in a subsequent action
     historically has been treated as a legal issue. As such, this Court
     is not bound
     draw our own conclusions from the facts as established.

Meridian Oil & Gas Enters., Inc. v. Penn Cent. Corp., 614 A.2d 246, 250

(Pa. Super. 1992).

     Collateral estoppel applies if (1) the issue decided in the prior
     case is identical to one presented in the later case; (2) there was
     a final judgment on the merits; (3) the party against whom the
     plea is asserted was a party or in privity with a party in the prior
     case; (4) the party or person privy to the party against whom
     the doctrine is asserted had a full and fair opportunity to litigate
     the issue in the prior proceeding and (5) the determination in
     the prior proceeding was essential to the judgment.

     Collateral estoppel, sometimes referred to as issue preclusion,
     operates to prevent a question of law or an issue of fact which
     has once been litigated and adjudicated finally in a court of
     competent jurisdiction from being relitigated in a subsequent
     suit.

Kituskie v. Corbman, 682 A.2d 378, 382 (Pa. Super. 1996) (citations

omitted).

     In the instant case, Pitney challenges the first and fifth elements of the



issue has been adjudicated and is essential to the judgment in a prior

proceeding

were several legitimate bases by which the arbitrators could have reached

their decision [in Warfel v. Pitney] without having to even consider, let


                                    -8-
J-A18021-14



alone decide, the issues concerning Murra                                      Id.

Thus, our task is to determine whether the trial court erred in determining




decision. See Kituskie, 682 A.2d at 382.



adjudicated in the arbitration.         In its complaint in the instant litigation,

Pitney raises one count of negligent misrepresentation against Murray,

alleging that Murray violated section 552 of the Restatement (Second) of

Torts1



Complaint, 8/08/2006, at 10 ¶ 44; see id. at 9-10 ¶¶ 38-45. Specifically,



misrepresentations that its design would match the existing building and



____________________________________________


1
         § 552 Information Negligently Supplied for the Guidance of
         Others

         (1) One who, in the course of his business, profession or
         employment, or in any other transaction in which he has a
         pecuniary interest, supplies false information for the guidance of
         others in their business transactions, is subject to liability for
         pecuniary loss caused to them by their justifiable reliance upon
         the information, if he fails to exercise reasonable care or
         competence in obtaining or communicating the information.

Restatement (Second) of Torts § 552(1).



                                           -9-
J-A18021-14



example, the design did not match the existing building, the front entrance

lacked sufficient structural support, the truss design would not accommodate

the HVAC equipment, and the plans, if followed, would have created student

                Id. at 33.

      In its arbitration brief, Pitney argued as follows:

      Many of the more costly problems resulted from poor
      coordination between the project architect, Murray, and Warfel.
      For example, despite the fact that all parties understood that the
      new academic building was to be substantially similar to the
      existing building, Murray did not include plans for windows. The
      windows in the first academic building were in plain view and
      obvious even to a casual onlooker. The failure to notice that
      windows were not in the architectural plans added significant
      costs to the project. . . .


      occurred during the construction phase of the academic building.
      The height of the penthouses was incorrect, and, therefore, duct
      work could not be installed.      The roof trusses had to be
      redesigned to accommodate the HVAC equipment. This caused
      delays in the roof installation. As a result, the drywall and
      insulation were in place before the roof was finished. This
      caused leaks which resulted in mold damage.

                              -8.




finalized design drawings and specifications for




      The penthouse area was poorly designed as the rooms were not
      designed to accommodate the [HVAC] equipment that was



                                     - 10 -
J-A18021-14


      designed, and that the roof truss system would have to be
      redesigned, if possible, to accommodate this equipment.

      There were design problems with the entrance. It became very
      obvious that there was an error made on the structural steel as
      far as accommodating the brick that was to go up over the
      entrance, over the peak. There was nothing there to carry it,
      which led to subsequent discussions with Murray . . . , and there
      had to be a redesign of the front steel.

Id. at 11-12 (quotation marks and record citations omitted).

      Finally, the proposed verdict slip that Pitney submitted to the

arbitration panel included the following queries:

      5.    Was Murray negligent or did Murray breach its agreement
      with Warfel in its design of the Phase II class building in any of
      the following respects?

           A. In designing the penthouse, HVAC systems and duct
           work in the penthouse;

           B. In designing the front entrance to the building;

           C. In designing the building         without   all   appropriate
           windows and brick banding.

      6.      Set forth the amount of damage that [Pitney] suffered as a

      Suggested answer: $558,209.72.

                                      -3.   Therefore, the record demonstrates

that Pitney presented to the arbitrators its allegations that Murray

negligently designed the building with respect to the HVAC system, roof

trusses, façade, and failure to match the first academic building.            See id.

                                               design errors alleged by Pitney . . .

are identical to those presented at the arbitration between Warfel and




                                      - 11 -
J-A18021-14



                                                                           is

                                              Kituskie, 682 A.2d at 382.

     Second, Pitney challenges whether these issues were essential to the



let alone adjudicate, the issu

                      Warfel v. Pitney



claims that, if accepted by the arbitrators, would h



                        Id. We disagree.

     When determining whether an issue is essential to the final judgment,

our Courts have looked to the context of the claim and whether it affected

the decision or damages rendered in the prior proceeding.        See, e.g.,

                                            , 618 A.2d 945, 955 (Pa. Super.

1992) (collaterally estopping insurance company from relitigating issue of



                                                            Meridian Oil &

Gas Enters., 614 A.2d at 252 (collaterally estopping litigation where

question of contract rights were essential in prior

dimensions of the ballast that Meridian had purchased under the contract



                                                             Incollingo v.

Maurer, 575 A.2d

                                   - 12 -
J-A18021-14



fifth requirement has also been met as it was essential for the panel to

determine damages as well as liability since the arbitration award was based

                                                         But

John J. Spencer Roofing, Inc., 565 A.2d 794, 797 (Pa. Super. 1989)



granted the non-

non-suit was n                                 -

       Here, in the arbitration, Pitney sought a determination of whether



unanticipated costs for which Pitney withheld pay from Warfel. See



from    Warfel   construction   due    to      the      improper   accounting,   the

mismanagement of the project which caused unnecessary costs, and the

                                                   award of the arbitrators to Warfel



Redcay College Campuses I, are denied in their entirety. . . . The award is

in full settlement of all claims and counterclaims submitted to this



Award of Arbitrators, 5/12/2006, at 3.



was essential for the panel to determine damages. See Stidham, 618 A.2d

at 955; Meridian Oil & Gas Enters.

assertion that the arbitration award could have been determined on

                                      - 13 -
J-A18021-14




Brief at 18, the arbitration p

                                                                              cf.



their entirety, the arbitration panel was required to consider and decide the

                                              See Incollingo, 575 A.2d at 941.

Thus, the fifth element of the collateral estoppel test was satisfied because

the determination in the prior proceeding was essential to the judgment.

See Kituskie

prove the first and fifth elements of the collateral estoppel test lacks merit.

      Accordingly, because Murray satisfied all five elements of collateral

estoppel, Meridian Oil & Gas Enters., Inc., 614 A.2d at 250, the trial

court did not err or abuse its discretion in determining that Murray was

entitled to summary judgment in the instant litigation as a matter of law.

Robbins, 827 A.2d at 1214.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/18/2014




                                     - 14 -
