J-A02020-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 APPALACHIAN TIMBER PRODUCTS,             :   IN THE SUPERIOR COURT OF
 INC., AND SUMMIT FOREST                  :        PENNSYLVANIA
 RESOURCES, INC.                          :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 LUTHER P. MILLER, INC.                   :   No. 832 WDA 2019
                                          :
                    Appellant             :

              Appeal from the Judgment Entered May 20, 2019
     In the Court of Common Pleas of Somerset County Civil Division at
                         No(s): No. 613 Civil 2015


BEFORE: SHOGAN, J., OLSON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY OLSON, J.:                                FILED MAY 27, 2020

      Appellant, Luther P. Miller, Inc., appeals from the judgment entered on

May 20, 2019 following a jury trial that produced a verdict in favor of

Appalachian Timber Products, Inc. and Summit Forest Resources, Inc.

(collectively referred to as “Appalachian Timber”) on breach of contract claims.

We affirm.

      The trial court summarized the facts and procedural history of this case

as follows:

      This case began with [Appalachian Timber] filing a complaint
      [against Appellant] on October 16, 2015 asserting claims for
      breach of contract and fraud. [Appalachian Timber] alleged
      that[,] from 2005 to October 6, 2014[,] Appellant engaged in a
      scheme in which Appellant billed [Appalachian Timber]          for
      [gallons of fuel that] Appellant knowingly failed to deliver to
      [Appalachian Timber’s] sawmill facility located [in] Markleysburg,
      Pennsylvania.    Accordingly, [Appalachian Timber] requested
J-A02020-20


     damages totaling $429,447.38 representing 33 1/3 % of the fuel
     gallons [for which Appalachian Timber paid but Appellant failed to
     deliver].     Appellant filed [its] answer and new matter on
     December 11, 2015 in which [it] averred [it] did not breach the
     agreement between the parties, nor made any false
     representations to [Appalachian Timber] regarding fuel delivery.
     Appellant further contended that an internal investigation
     conducted by Appellant following [Appalachian Timber’s]
     allegations disclosed no irregularities in [the] amount of fuel
     delivered to [Appalachian Timber].

                          *            *            *

     [The trial court] conducted a pre-trial conference with the parties
     on October 5, 2018, following which, Appellant filed a motion in
     limine to exclude witness testimony and a motion in limine to
     exclude irrelevant documentary evidence on October 12, 2018.
     With respect to [] Appellant’s motion and brief in support related
     to alleged irrelevant witness testimony, Appellant contended[,
     inter alia, that] eight of [Appalachian Timber’s] proposed
     witnesses would offer testimony prohibited by Pa.R.E. 40[4](b)
     regarding improper use of character evidence. According to
     [Appalachian Timber], the proffered testimony of the witnesses at
     issue only served to “explain the complete picture of the scheme
     carried out by [Appellant],” and therefore did not run afoul of
     Pa.R.E. 40[4](b) restrictions on “other act” character evidence.
     As outlined in their brief in opposition, [Appalachian Timber]
     averred that many of the witnesses would describe analogous
     instances in which Appellant billed other entities for gallons of fuel
     which Appellant did not ultimately deliver.           Following oral
     argument on Appellant’s motions, [the trial court] issued an order
     granting Appellant’s motion in limine in part, but denying the
     motion with respect to the testimony of Wayland King, a
     representative of R.W. Frazee Trucking, and two [of Appellant’s]
     former employees, Bob Shope and Jason Gibbs. On October 22,
     2018, [the trial court] ordered that the case be scheduled for a
     three-day jury trial.

     Prior to the start of trial, [the trial court] granted [Appalachian
     Timber’s] motion to amend complaint, in which [Appalachian
     Timber] identified numerous errors contained within the original
     complaint filed October 16, 2015, thereby altering the total sum
     of damages requested. Consequently, the amended complaint
     averred that, on average, Appellant delivered 42% less fuel
     gallons per delivery to [Appalachian Timber] than was required by

                                     -2-
J-A02020-20


      agreement – and for which [Appalachian Timber was] ultimately
      billed and paid for – and amended [its] claim for damages to
      reduce the total sum claimed to $416,268.95.              The case
      proceeded to a jury trial on November 5-7, 2018. At the close of
      [Appalachian Timber’s] case, Appellant moved for a nonsuit and
      directed verdict, which [the trial court] denied. At the conclusion
      of the trial, the jury entered a verdict in favor of [Appalachian
      Timber] in the amount of $416,286.00.

      Appellant filed [a] motion for post-trial relief on November 19,
      2018, arguing that (1) the evidence presented at trial was
      insufficient to establish the elements of [Appalachian Timber’s]
      breach of contract claim; (2) the jury’s verdict was against the
      weight of the evidence; (3) the [trial c]ourt’s admission of the
      testimony of Wayland King required a new trial; and (4) the jury’s
      damage [] award was substantially larger than warranted by the
      evidence and [required remittance]. On May 9, 2019, [the trial
      court] issued an order denying [Appellant’s] motion for post-trial
      relief. Appellant filed [a] notice of appeal on May 30, 2019. On
      May 31, 2019, [the trial court] ordered [] Appellant [to] file a
      concise statement of errors complained of on appeal, pursuant to
      Pa.R.A.P. 1925(b), with which [Appellant] complied [] on June 20,
      2019.

Trial Court Opinion, 8/15/2019, at 1-4 (record citations and superfluous

capitalization omitted).

      On appeal, Appellant presents the following issues for our review:

      I.    Did the trial court err and/or abuse its discretion in
            admitting testimony from a non-party witness who testified
            that Appellant committed similar bad acts in its dealings
            with the non-party as Appellant allegedly committed in its
            dealings with [Appalachian Timber]?

      II.   Did the trial court err and/or abuse its discretion in denying
            Appellant’s request for judgment notwithstanding the
            verdict [(JNOV)], where there was insufficient evidence
            supporting the jury’s verdict regarding any pre-2011 breach
            of contract and damages?

Appellant’s Brief at 5.



                                     -3-
J-A02020-20



      In its first issue presented, Appellant claims that the trial court erred by

failing to grant its motion in limine to exclude Wayland King, a representative

from R.W. Frazee Trucking, from testifying that Appellant billed a third-party

entity for undelivered fuel. Appellant’s Brief at 10-19. Appellant contends

that Appalachian Timber sought to prove its case by showing Appellant

engaged in a similar act, at a different time, in order to establish that Appellant

acted in conformity with that prior act in the current case.        Id. at 11-12.

Appellant further contends that “[t]his evidence was inadmissible, as it was

irrelevant, unduly prejudicial, and impermissible ‘bad act’ evidence that should

have been excluded.” Id. at 10. Appellant argues that “[t]he trial court’s

decision to admit Mr. King’s testimony under Rule of Evidence 404(b)(2) was

error and/or an abuse of discretion[, because n]one of the exceptions listed in

Rule [] 404(b)(2), or otherwise embodied in the case law, applies here.” Id.

at 15. Appellant maintains that this matter entails an action for breach of

contract and damages between Appellant and Appalachian Timber, “neither of

which had anything to do with Mr. King’s employer” and that “a common

scheme or plan was not at issue.”        Id.   Appellant concludes that it was

prejudiced by the introduced testimony and is entitled to a new trial. Id. at

18.

      We adhere to the following standard of review:

      Admission of evidence is within the sound discretion of the trial
      court and we review the trial court's determinations regarding the
      admissibility of evidence for an abuse of discretion. To constitute
      reversible error, an evidentiary ruling must not only be erroneous,
      but also harmful or prejudicial to the complaining party. For

                                       -4-
J-A02020-20


     evidence to be admissible, it must be competent and relevant.
     Evidence is competent if it is material to the issue to be
     determined at trial. Evidence is relevant if it tends to prove or
     disprove a material fact. Relevant evidence is admissible if its
     probative value outweighs its prejudicial impact. The trial court's
     rulings regarding the relevancy of evidence will not be overturned
     absent an abuse of discretion.

     Pursuant to Rule of Evidence 402, relevant evidence is generally
     admissible, and irrelevant evidence is inadmissible. Further,
     relevant evidence may be excluded if its probative value is
     outweighed by its potential for unfair prejudice, defined as a
     tendency to suggest decision on an improper basis or to divert the
     jury's attention away from its duty of weighing the evidence
     impartially.

Czimmer v. Janssen Pharmaceuticals, Inc., 122 A.3d 1043, 1058 (Pa.

Super. 2015) (citation omitted).

     Moreover, pursuant to Pennsylvania Rule of Evidence 404(b):

     (b) Crimes, Wrongs or Other Acts.

        (1) Prohibited Uses. Evidence of a crime, wrong, or other
        act is not admissible to prove a person's character in order
        to show that on a particular occasion the person acted in
        accordance with the character.

        (2) Permitted Uses. This evidence may be admissible for
        another purpose, such as proving motive, opportunity,
        intent, preparation, plan, knowledge, identity, absence of
        mistake, or lack of accident. In a criminal case this evidence
        is admissible only if the probative value of the evidence
        outweighs its potential for unfair prejudice.

Pa.R.E. 404(b).

     An en banc panel of this Court has explained:

     Evidence of prior [acts] is not admissible for the sole purpose of
     demonstrating a [] propensity to commit [other acts].
     Nevertheless, evidence may be admissible in certain
     circumstances where it is relevant for some other legitimate
     purpose and not utilized solely to blacken a defendant’s character.

                                    -5-
J-A02020-20


       Specifically, other [bad acts] evidence is admissible if offered for
       a non-propensity purpose, such as proof of an actor's knowledge,
       plan, motive, identity, or absence of mistake or accident. When
       offered for a legitimate purpose, evidence of prior [acts] is
       admissible if its probative value outweighs its potential for unfair
       prejudice.

       When ruling upon the admissibility of evidence under the common
       plan exception, the trial court must first examine the details and
       surrounding circumstances of each [] incident to assure that the
       evidence reveals [] conduct which is distinctive and so nearly
       identical as to become the signature of the same perpetrator.
       Relevant to such a finding will be the habits or patterns of action
       or conduct undertaken by the perpetrator [], as well as the time,
       place, and types of victims typically chosen by the perpetrator.
       Given this initial determination, the court is bound to engage in a
       careful balancing test to assure that the common plan evidence is
       not too remote in time to be probative. If the evidence reveals
       that the details of each [] incident are nearly identical, the fact
       that the incidents are separated by a lapse of time will not likely
       prevent the offer of the evidence unless the time lapse is
       excessive. Finally, the trial court must assure that the probative
       value of the evidence is not outweighed by its potential prejudicial
       impact upon the trier of fact.

Commonwealth v. Tyson, 119 A.3d 353, 358–359 (Pa. Super. 2015) (en

banc).

       Our Supreme Court “has also recognized the res gestae exception,

permitting the admission of evidence of other crimes or bad acts to tell ‘the

complete story.’” Commonwealth v. Hairston, 84 A.3d 657, 665, 624 Pa.

143, 157 (Pa. 2014).         Recently, we reiterated that evidence pursuant to

Pa.R.E. 404(b)(2) is admissible in civil proceedings. See Hoak v. Newton,

2019 WL 3302614 (Pa. Super. July 23, 2019),1 citing Homewood People’s
____________________________________________


1See Pa.R.A.P. 126(b) (unpublished non-precedential memorandum decisions
of the Superior Court filed after May 1, 2019 may be cited for their persuasive
value).

                                           -6-
J-A02020-20



Bank v. Marshall, 72 A. 627 (Pa. 1909). Appellant concedes that Rule 404(b)

is applicable in the civil context. See Appellant’s Brief at 11.

      On this issue, the trial court determined:

      With respect to King, an employee of R.W. Frazee Trucking,
      [Appalachian Timber] averred that the witness would describe a
      scenario involving Appellant which closely resembled the facts
      underlying [Appalachian Timber’s] claim in the instant matter. As
      [Appalachian Timber] noted, King observed a delivery truck
      belonging to Appellant arrive at his employer’s facility and begin
      pumping fuel into a holding tank with roughly 300 gallons of fuel
      already registered on the delivery truck’s fuel meter. According
      to King, the driver of the delivery truck was Rodney Kreger – the
      same driver that delivered fuel to [Appalachian Timber] from
      Appellant’s Confluence branch. [In permitting King’s testimony,
      the trial court] noted the undeniable parallels among the
      allegations set forth by King, and those which formed the basis of
      [Appalachian Timber’s] claim against Appellant.

                            *            *             *

      At trial, King provided testimony regarding two incidents in which
      Rodney Kreger, on behalf of Appellant, delivered fuel to R.W.
      Frazee Trucking at their facility in Addison, Pennsylvania. With
      respect to both incidents, King stated that he witnessed Kreger
      pull into the facility, drive directly to the fuel tank and begin filling
      the tanks. According to King, before Kreger began pumping fuel
      on both occasions, the fuel meter on the delivery truck already
      registered roughly 250 and 175 gallons of fuel respectively. When
      asked whether the number of registered gallons reset to “zero”
      upon Kreger commencing the fuel delivery at the facility, King
      responded, “No.” King informed the owner of R.W. Frazee
      Trucking, Rick Frazee, who confronted Kreger about the
      discrepancy. As a result, Kreger was required to alert King each
      time he delivered fuel to the Frazee facility to ensure that the fuel
      pump meter was reset to “zero” prior to filling the fuel tank. Both
      events were alleged to have occurred within a week or two of each
      other in the summer or spring of 2014.

      Similarly, John Merschat, owner of [Appalachian Timber], testified
      at trial to fuel delivery problems involving Appellant and Rodney
      Kreger at his sawmill located in Markleysburg, Pennsylvania. As

                                       -7-
J-A02020-20


      Merschat recalled, a manager of Appalachian Timber, Craig
      Squibb, initially informed Merschat of a discrepancy involving 300
      gallons of fuel reported[ly delivered to the sawmill, but for which
      receipt could not be confirmed]. Following a discussion on the
      matter, Merschat decided to address the issue with Rodney Kreger
      at his next-scheduled fuel delivery. On October 6, 2014, Merschat
      observed Kreger arrive at the Appalachian Timber facility and
      proceed to a fuel tank on the premises. Merschat proceeded to
      where the delivery truck was parked, estimating the time that
      elapsed between when Kreger parked the delivery truck and when
      Merschat arrived at the truck’s location to be about 15 seconds.
      When Merschat arrived, fuel was already being pumped into the
      fuel tank, but Kreger was not standing at the delivery truck.
      Merschat was surprised to find that the meter on the fuel pump
      indicated 330 gallons had already been pumped into the fuel tank
      – an amount Merschat believed to be impossible given that little
      time had elapsed after Kreger parked the delivery truck. Indeed,
      as Kreger’s testimony would later establish, the delivery truck
      typically pumped fuel at a rate of between 60 to 80 gallons a
      minute. When Kreger returned to the truck, Merschat confronted
      Kreger about the discrepancy and asked him to leave the
      premises.

                           *           *            *

      As [] detailed above, the incidents described by both Merschat and
      King regarding discrepancies in fuel delivered by Appellant are
      remarkably similar and occurred relatively close in time to one
      another in 2014. As testimony established at trial, Appalachian
      Timber and [] King’s employer, R.W. Frazee Trucking, are also
      located in close [physical] proximity to one another, and were
      serviced by the same regional fuel delivery facility operated by
      Appellant in Confluence, Pennsylvania. Kreger regularly delivered
      fuel to both entities on behalf of Appellant, and more importantly,
      delivered fuel to both facilities during the incidents giving rise to
      the case sub judice. Lastly, [] King and Merschat provided
      strikingly similar testimony regarding Appellant’s manner and
      method of fuel delivery at both facilities – dispensing fuel without
      resetting the fuel pump meter to “zero” – and failing to account
      for such discrepancies when billing for any undelivered fuel.

Trial Court Opinion, 8/15/2019, at 6-9 (record citations omitted).




                                      -8-
J-A02020-20



      Upon review, we discern no abuse of discretion or error of law in

admitting the other acts evidence at issue. Appellant defended against liability

by asserting delivery of all fuel for which it billed Appalachian Timber.

Appellant’s Brief at 15. This defense squarely placed opportunity, preparation,

and planning at issue during the trial. The commonality of factors between

the incidents at Frazee Trucking and those at Appalachian Timber tended to

show that Appellant possessed the capacity to pursue and execute a common

scheme to deliver less fuel to Appalachian Timber, and other customers, than

contractually obligated. The shared factors also dispelled the notion that the

incidents were merely coincidental mistakes or accidents. Taken together with

the evidence offered by Merschat, King’s testimony showed that the same

driver delivered less fuel to two of Appellant’s customers by failing to reset

the delivery truck pump to zero before dispensing fuel.          This evidence

developed a logical connection between the episodes and showed it to be more

probable than not that the events occurred as a result of coordinated

preparation and planning by a single perpetrator. The repeated and consistent

actions of the same delivery driver employing identical methods to “short”

Appellant’s customers on their fuel requirements was relevant to establish

both Appellant’s opportunity and its intentional pursuit of in a common scheme

to deliver less fuel than agreed upon. Moreover, King’s testimony was proper

under the res gestae exception to prior bad acts, in order to tell the complete

story of Appellant’s dealings.   For all of the foregoing reasons, we discern no




                                      -9-
J-A02020-20



abuse of discretion or error of law by the trial court in admitting the evidence

at issue. As such, Appellant’s first issue is without merit.

      Next, Appellant contends that the trial court abused its discretion or

erred as a matter of law by failing to grant a JNOV. Appellant maintains that

although Appalachian Timber claimed damages for breach of contract for fuel

deliveries from 2005 through 2014, it failed to provide sufficient evidence of

fuel delivery invoices or logs predating 2011. Appellant’s Brief at 19-22. More

specifically, Appellant points to Exhibits 1 and 11 as presented by Appalachian

Timber at trial, to support its claim that Appalachian Timber did not submit

evidence of damages predating 2011. Id. at 20-21. As such, Appellant posits:

      In short, for the period before 2011, Appalachian [Timber]
      introduced at trial no direct or substantial evidence, whether
      documentary or testimonial in nature, establishing the amount of
      fuel [Appellant] delivered, the amount of money Appalachian
      [Timber] paid for that fuel [], and any discrepancy between the
      two. Without such evidence, for that period, any verdict in
      Appalachian [Timber’s] favor against [Appellant] for breaching the
      parties’ contract by delivering less fuel than that for which
      Appalachian [Timber] was billed was based purely on speculation
      and conjecture, rather than admissible evidence, circumstantial or
      otherwise.

Id. at 21-22 (citation omitted). Accordingly, Appellant requests this Court

remand this case for entry of judgment in its favor or, alternatively, order a

reduction of the adverse judgment by an amount equal to all damages

allegedly stemming from pre-2011 deliveries. Id. at 22.

      Our standard of review of a denial of a motion for JNOV is well-settled:

      Appellate review of a denial of JNOV is quite narrow. We may
      reverse only in the event the trial court abused its discretion or

                                     - 10 -
J-A02020-20


     committed an error of law that controlled the outcome of the case.
     Abuse of discretion occurs if the trial court renders a judgment
     that is manifestly unreasonable, arbitrary or capricious; that fails
     to apply the law; or that is motivated by partiality, prejudice, bias
     or ill-will.

     When reviewing an appeal from the denial of a request for JNOV,
     the appellate court must view the evidence in the light most
     favorable to the verdict-winner and give him or her the benefit of
     every reasonable inference arising therefrom while rejecting all
     unfavorable testimony and inferences.... Thus, the grant of a
     judgment n.o.v. should only be entered in a clear case and any
     doubts must be resolved in favor of the verdict-winner.
     Furthermore, it is only when either the movant is entitled to
     judgment as a matter of law or the evidence was such that no two
     reasonable minds could disagree that the outcome should have
     been rendered in favor of the movant that an appellate court may
     vacate a jury's finding.

Empire Trucking Co. v. Reading Anthracite Coal Co., 71 A.3d 923, 932

(Pa. Super. 2013) (citations, quotations, and brackets omitted).

     Our Supreme Court has held:

     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.

     The purpose of a damage award is to place the non-breaching
     party as nearly as possible in the same position it would have
     occupied had there been no breach.

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

(citations and quotations omitted).    “The law does not permit a damages




                                    - 11 -
J-A02020-20



award to be based on mere guesswork or speculation, but rather requires a

reasonable basis to support such an award.” Id.

      Additionally, as this Court has previously determined:

      The general rule in this Commonwealth is that the plaintiff bears
      the burden of proof as to damages.

      The determination of damages is a factual question to be decided
      by the fact-finder. The fact-finder must assess the testimony, by
      weighing the evidence and determining its credibility, and by
      accepting or rejecting the estimates of the damages given by the
      witnesses.

      Although the fact-finder may not render a verdict based on sheer
      conjecture or guesswork, it may use a measure of speculation in
      estimating damages. The fact-finder may make a just and
      reasonable estimate of the damage based on relevant data, and
      in such circumstances may act on probable, inferential, as well as
      direct and positive proof.

Omicron Sys., Inc. v. Weiner, 860 A.2d 554, 564–565 (Pa. Super. 2004)

(citation omitted).

      Finally, we have concluded:

      The test of whether damages are remote or speculative has
      nothing to do with the difficulty in calculating the amount, but
      deals with the more basic question of whether there are
      identifiable damages.

      Thus, damages are speculative only if the uncertainty concerns
      the fact of damages rather than the amount.

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 572 (Pa. Super. 2007)

(citation, brackets and ellipsis omitted).

      The trial court determined that Appalachian Timber presented sufficient

evidence for the jury to estimate actual loss:


                                     - 12 -
J-A02020-20


     [Appalachian Timber presented] testimony and records from [its]
     own facility detailing the amount of fuel reported to have been
     delivered by Appellant, fuel usage at the Appalachian Timber
     facility, and Appalachian Timber’s product output.           Leslie
     Hutchinson, a bookkeeper at Appalachian Timber, testified that
     she noted discrepancies beginning in 2011, after observing that
     the number of fuel gallons delivered by Appellant far exceeded the
     number of gallons utilized by Appalachian Timber during its
     regular course of business. After Appalachian Timber utilized a
     different fuel delivery provider in October of 2014, Hutchinson
     testified that the number of fuel gallons for which Appalachian
     Timber was billed for similar production output decreased
     significantly.   Likewise, John Merschat provided testimony
     regarding the average sum of fuel consumed [at] the sawmill in a
     month compared to the total sum delivered by Appellant. As
     Merschat noted, taken together, the records compiled by
     Appalachian Timber [suggest] that Appellant delivered 42% less
     than was ultimately billed to Appalachian Timber beginning in
     2005.     Accordingly, based upon this percentage, Merschat
     calculated Appalachian Timber’s damages to be approximately
     $416,286.95.

Trial Court Opinion, 8/15/2019, at 14.

     Accordingly, the trial court determined that the jury did not base its

award upon speculation, but rather an estimate of damages based upon the

evidence of record:

     The testimony of John Merschat provided extensive evidence,
     which the jury was free to believe, regarding the estimated
     number of gallons of fuel consumed by the sawmill versus the
     amount of fuel delivered by Appellant beginning in 2005. In doing
     so, Merschat testified that between 2005 and October 2014,
     Appellant delivered [] approximately 42% less fuel than was
     represented on delivery receipts Appellant submitted to
     Appalachian Timber. In support of this allegation, Merschat
     provided testimony regarding Appalachian Timber’s average
     monthly fuel consumption, product output, efficiency of machinery
     operated by the sawmill, and the precise number of gallons
     delivered to Appalachian by Appellant beginning in 2011.
     Furthermore, [Appalachian Timber] presented evidence regarding
     a substantial improvement in fuel efficiency after Appalachian

                                   - 13 -
J-A02020-20


        Timber began receiving fuel deliveries from another fuel delivery
        service, despite the fact that [Appalachian Timber] did not make
        any changes in the manner in which it operated its sawmill and
        equipment. As Merschat noted, the seeming increase in machine
        efficiency was particularly notable given the fact that the machines
        operated by the sawmill had aged and would presumably be less
        efficient. From these figures, [the trial court] believe[d] the jury
        was able to make a just and reasonable estimate of damages for
        fuel delivery discrepancies dating back to 2005, based upon the
        evidence and testimony provided by [Appalachian Timber].

Id. at 16-17 (record citations omitted).

        Upon review, we agree. Initially, we note that upon our review of the

certified record, Appalachian Timber’s Exhibit #1 confirms that it only

presented invoices and canceled checks for the sale of fuel from 2011-2014.

Moreover, in calculating the 42% alleged shortage, Merschat testified that he

relied solely upon record data from 2011-2014.         N.T., 11/5/2018, at 132.

However, Merschat also testified that the total amount paid to Appellant

during the course of the parties’ entire business relationship, from 2005 until

2014, totaled $991,159.40. Id. at 103. Merschat and his bookkeeper, Leslie

Hutchinson, “added up all of the fuel deliveries from [Appellant] on a monthly

basis, and [] averaged them out” to determine that Appalachian Timber

purchased “733.8 gallons” of fuel per week during the period from 2005 until

2014.    Id. at 92.   This evidence was uncontested and Appellant does not

currently challenge it. As such, we flatly reject Appellant’s suggestion that

there was no evidence of the amount of money Appalachian Timber paid

Appellant or the amount of fuel allegedly purchased.




                                       - 14 -
J-A02020-20



      Additionally, after Appalachian Timber changed fuel providers, Merschat

realized that Appalachian Timber was using approximately 300 gallons of fuel

per week less than previously thought. Id. at 79, 96.     Merschat explained

how much fuel each machine in the timber mill used per week. Id. at 83.

Appalachian Timber purchased each of those machines before 2005 and

continued using them after Appellant stopped delivering fuel in 2014. Id. at

88-92.   Merschat averaged the timber mill’s monthly fuel consumption and

compared it with the amount of fuel purchased monthly from Appellant. Id.

at 92. Using those calculations, Merschat confirmed that Appellant failed to

deliver 308 gallons of fuel per week during the entire period relevant to the

jury’s damage calculation.     Id. at 94.     Those figures taken together

represented a shortage of 42%. Id. at 96. Forty-two percent of the total

amount paid to Appellant over the 2005-2014 period, represented the amount

of damages requested at trial. Id. at 104. Accordingly, we conclude that this

evidence sufficiently established the discrepancy between the amount paid

and the fuel received.

      Finally, Appellant posits that the amount of the award of damages was

speculative. However, as stated above, damages are speculative only if the

uncertainty concerns the fact of damages rather than the amount. Appellant

does not suggest that there were no identifiable damages in this matter.

Moreover, as we discussed in the first issue presented, this case dealt with a

scheme wherein it was difficult to ascertain precisely how much fuel was

actually delivered. Evidence revealed that Appellant’s delivery driver would

                                    - 15 -
J-A02020-20



pump fuel without first resetting the delivery truck’s pump to zero. Without

knowing the true starting point of the delivery pump setting for each delivery,

there was no direct evidence of the precise amount of fuel Appalachian Timber

actually received over the course of the parties’ business dealings.

Appalachian Timber was able to determine the number of gallons of fuel it

consumed for production when it changed service providers.            In turn,

Appalachian Timber was then able to estimate the amount of fuel delivered by

Appellant.   More specifically, an evaluation of the total amount paid by

Appalachian Timber as compared with the estimated amount of fuel delivered,

provided the jury with the reasonable means to estimate its award. As such,

we conclude that the jury’s award was not based upon speculation and a JNOV

was not warranted. Hence, Appellant is not entitled to relief.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/27/2020




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