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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HOWARD CONCRETE PUMPING                  :   IN THE SUPERIOR COURT OF
COMPANY, INC.                            :        PENNSYLVANIA
                                         :
                   Appellant             :
                                         :
             v.                          :
                                         :
PEAK INNOVATIONS, INC., AND              :
DREW RAYMOND NELSON, AN                  :
INDIVIDUAL, AND TJ MINC, LLC             :   No. 725 WDA 2017

             Appeal from the Judgment Entered April 21, 2017
 In the Court of Common Pleas of Allegheny County Civil Division at No(s):
                              GD14-021268

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                              FILED AUGUST 27, 2018

      Howard Concrete Pumping Company, Inc. (“Howard”) appeals from the

judgment entered in its favor and against Peak Innovations, Inc. (“Peak”) in

this contract case.   Specifically, Howard challenges a pre-trial evidentiary

ruling that limited its ability to establish damages. We affirm.

      The trial court offered the following summary of the facts underlying

this action and the procedural history of the case.

             [Howard] mixes and supplies grout for injection into
      underground spaces such as abandoned mines so as to improve
      ground stabilization. Over nearly forty years, Howard developed
      a variety of equipment and techniques to produce grout
      effectively at project sites. In 2012, Howard contracted with
      [Peak] an equipment manufacturer. Under the contract, Howard
      expected to buy from Peak a new and unique mixing plant, a
      custom-designed piece of equipment intended to provide a range
      of cementitious products with more efficiency and accuracy than
      had been previously accomplished in the industry. The novelty
      of this plant was such that Howard, already a long-time leader in
      the grout-related industry, believed it (Howard) would be able to
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     move its business to the “next level,” evidently in terms of
     productivity, efficiency, and/or profit. The contract negotiations
     involved a number of documents and information such as
     proposals, purchase orders, warranties, and a non-disclosure
     agreement.     Defendant Drew Nelson was an owner and/or
     executive of Peak involved in the negotiations and the eventual
     sale of the plant. Also involved in the contract negotiations
     and/or sale was TJM, Inc. (“TJM”). TJM was an authorized dealer
     or sales agent for Peak.

            According to Howard, Peak delivered the plant in April
     2013, several months late and, moreover, the plant did not
     operate properly. Howard contended that, as a result of the late
     delivery and the defects in the plant, Howard lost money. In its
     complaint filed in this suit, Howard alleged that its losses
     resulted from, for example, an inability to use the plant—or an
     inability to use it fully—on one or more of the jobs for which it
     was intended; the need to use replacement equipment; low
     productivity/efficiency when the subject plant was used; repair
     and troubleshooting costs; and costs for idle manpower. Howard
     also alleged that Peak and Nelson sold one of Howard’s
     competitors a plant that Peak manufactured using Howard’s
     trade secrets and other protected information. As defendants in
     this litigation, Howard initially named Peak, Nelson, and TJM.
     Howard’s claims against Peak and Nelson included breach of
     contract, breach of warranties, breach of the non-disclosure
     agreement, and misappropriation of trade secrets. Howard sued
     TJM for breach of both contract and warranties.

           Prior to trial, all Defendants anticipated that Howard would
     seek to claim damages for, inter alia, Howard’s inability to
     secure a particular project with the Ohio Department of
     Transportation in or near Zanesville. Defendants sought to
     exclude evidence of that project from trial. Arguing to th[e trial]
     court, Howard contended that, because the subject plant was not
     properly operable, Howard had submitted a bid for the Zanesville
     work based on the anticipated use of other/older equipment.
     Because that equipment was not as cost-effective as Howard
     expected the new plant to be (if properly operable), Howard’s
     Zanesville bid was higher with the old equipment than it would
     have been with the new plant. Howard was not awarded the
     Zanesville job. Thus, Howard’s position was that, if the new
     plant had been operable, Howard would have submitted a lower
     bid, the Ohio Department of Transportation would have selected

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      Howard for the Zanesville job, and Howard would have made a
      profit on the job.

             Defendants raised several points in opposition to Howard’s
      Zanesville argument, including the contention that the jury in
      this case would need to speculate to determine whether the Ohio
      Department of Transportation would have awarded Howard the
      Zanesville project based solely on a lower bid. In this vein,
      Defendants contended that, in the course of considering bids,
      the appropriate Ohio officials were required, by Ohio law, to
      consider numerous factors in addition to the bid amount. Along
      these lines, Defendants also noted that Howard had no intention
      of calling any Ohio state official to testify about the issue of
      whether Howard would have received the Zanesville project if
      Howard had lowered its bid amount. Defendants’ point was
      simply that any claim of Zanesville damages was too uncertain
      to admit evidence thereon at trial. Th[e trial] court granted
      Defendants’ motions to preclude evidence of the Zanesville bid
      because the court found the Zanesville matter to be speculative.
      . . . Before trial, TJM and Howard settled their disputes. Peak
      and Nelson remained as Defendants.

            The case was heard by a jury.        The jurors found in
      Defendants’ favor on the counts of breach of confidentiality and
      misappropriation of trade secrets, but awarded Howard
      $50,000.00 on its breach of contract and warranty claims.
      Howard filed post-trial motions challenging th[e trial] court’s
      exclusion of the Zanesville evidence and requesting an award of
      prejudgment interest.     The court denied Howard’s post-trial
      request for a new trial on the Zanesville issue but granted
      Howard $1,500.00 in prejudgment interest. The court then
      molded the verdict accordingly and ordered entry of judgment
      on April 17, 2017. Howard filed this direct appeal on May 16,
      2017. On May 19, 2017, this court ordered Howard to file a
      statement of matters complained of on appeal. Howard filed its
      statement on June 9, 2017.

Trial Court Opinion, 6/17/16, at 1-4 (citations omitted).

      Howard presents the following questions for this Court’s review.

      1.   Did the trial court err in granting Peak’s Motion in Limine
      and barring Howard’s evidence related to the Zanesville Project,


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      where entitlement to and the amount of consequential damages
      are questions of fact for the jury?

      2.    Did the trial court err in substantively adjudging Howard’s
      claims for consequential damages as inherently speculative?

      3.    Did the trial court err by barring Howard’s entire claim for
      consequential damages related to the Zanesville Project by way
      of a motion in limine, improperly rendering the motion in limine
      a motion for summary judgment?

Howard’s brief at 3.

      As all of Howard’s issues concern the trial court’s decision to preclude

Howard from offering evidence of damages from not obtaining the Zanesville

contract, we address them together.       The following principles guide our

review.

            A motion in limine is a pretrial mechanism to obtain a
      ruling on the admissibility of evidence, and it gives the trial
      judge the opportunity to weigh potentially prejudicial and
      harmful evidence before the trial occurs, preventing the evidence
      from ever reaching the jury. A trial court’s decision to grant or
      deny a motion in limine is subject to an evidentiary abuse of
      discretion standard of review.

            Questions concerning the admissibility of evidence lie
            within the sound discretion of the trial court, and we
            will not reverse the court’s decision absent a clear
            abuse of discretion. An abuse of discretion may not
            be found merely because an appellate court might
            have reached a different conclusion, but requires a
            manifest unreasonableness, or partiality, prejudice,
            bias, or ill-will, or such lack of support so as to be
            clearly erroneous.

Seels v. Tenet Health Sys. Hahnemann, LLC, 167 A.3d 190, 206

(Pa.Super. 2017) (citations and internal quotation marks omitted).




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      Turning to the substantive issue, we observe that “[t]he general rule

of law applicable for loss of profits in a contract action permits recovery of

lost profits when there is evidence to establish them with reasonable

certainty, there is evidence to show that they were the proximate

consequence of the wrong and if they were reasonably foreseeable.” Quinn

v. Bupp, 955 A.2d 1014, 1021 (Pa.Super. 2008) (internal quotation marks

omitted). “To recover for lost profits there must be affirmative evidence that

the loss resulted from the breach of contract. It is not necessary that the

amount be shown with absolute or mathematical certainty, but only that it

be approximated by competent proof.” Ne. Vending Co. v. P.D.O., Inc.,

606 A.2d 936, 939 (Pa.Super. 1992) (citations omitted).

      However, “damages are not recoverable if they are too speculative,

vague or contingent[.]” Spang & Co. v. U.S. Steel Corp., 545 A.2d 861,

866 (Pa. 1988).    “The question of whether damages are 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.” Newman

Dev. Grp. of Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d

645, 661 (Pa.Super. 2014) (en banc); see also Kituskie v. Corbman, 714

A.2d 1027, 1030 (Pa. 1998) (“Damages are considered remote or

speculative only if there is uncertainty concerning the identification of the

existence of damages rather than the ability to precisely calculate the

amount or value of damages.”); Barrack v. Kolea, 651 A.2d 149, 155


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(Pa.Super. 1994) (“Damages are not speculative when they are certain in

fact, even if uncertain as to amount.”).

      With the various issues it argues on appeal, Howard contends that the

trial court usurped the jury’s role of judging the sufficiency and weight of the

evidence. Howard’s brief at 15. Howard maintains that Peak’s challenge to

the speculative nature of the damages went to the weight of the evidence,

not its admissibility. Id. at 22 (citing Zieber v. Bogert, 773 A.2d 758, 763

(Pa. 2001)).    It avows that motions in limine “are unsuitable vehicles for

parties to allege that a claim must fail because it lacks evidentiary support,

and are inappropriate devices for resolving substantive issues.” Id. at 30.

Howard argues that the trial court paradoxically precluded Howard from

putting its evidence before the jury and then ruled that Howard’s claim failed

for lack of evidence. Id. at 28.

      Howard further asserts that it did proffer evidence, in the form of an

expert report, to establish that lost profits from the Zanesville job were

foreseeable, calculable, and proximately caused by Peak’s breach of

contract. Id.   Howard insists that it had no duty to prove that it would have

won the Zanesville job, but rather “only that it was denied the opportunity to

fairly compete for the bid.” Id. at 21 (citing Merion Spring Co. v. Muelles

Hnos. Garcia Torres, S.A., 462 A.2d 686, 697 (Pa.Super. 1983)).

      We begin with Howard’s procedural arguments. On October 16, 2017,

Howard filed its pretrial statement listing its witnesses and exhibits, and


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indicating that its damages were set forth in the expert report of Michael H.

Bronder, CPA.     Pretrial Statement, 10/17/16, at 4-21.        On November 21,

2016, Peak filed a motion in limine claiming that Mr. Bronder’s expert

opinion was insufficient to show that Peak was the cause of Howard losing

profits from the Zanesville job.      Motion in Limine, 11/21/16, at ¶¶ 10-23.

The trial court entered an order granting the motion on December 12, 2016,

indicating that Howard was not permitted to introduce evidence relating to

“damages    for   lost   profits   associated   with   the   Ohio   Department   of

Transportation project located on Interstate 70 in the vicinity of Zanesville,

Ohio, as set forth in Plaintiff’s expert report submitted by Michael H.

Bronder[.]” Order, 12/12/16, at ¶ A. The trial court explained its ruling as

follows.

             By virtue of statutes and interpretive case law, Ohio has its
      own criteria for awarding public projects like the Zanesville job.
      See, e.g., O.R.C.Ann. §9.312; see also Steingass Mechanical
      Contracting, Inc. v. Warrensville Hts. Bd. of Education, 784
      N.E.2d 118, 121-24 (Ohio Ct. App. 2003) (discussing criteria for
      awarding public projects to “responsible” bidders under Ohio
      Revised Code § 9.312; and indicating the determination of
      statutorily required “responsibility” under Ohio law will differ
      from project to project). Howard was not going to call any Ohio
      official to offer the jury any testimony about the Ohio criteria
      and/or the Ohio process for evaluating bids, to offer facts giving
      the jury any insight as to any probability that Ohio might have
      awarded Howard the Zanesville project if Howard had submitted
      a lower bid, or to shed light on the issue of whether a lower bid
      alone     could   have    rendered    Howard’s     bid   successful.
      Furthermore, Howard itself admitted that, for any official from
      the Ohio Department of Transportation (i.e., an official involved
      in the bid-evaluation/bid-acceptance process) to testify about
      whether Howard could have won the project with a lower bid
      would involve “speculation that [the Ohio official] couldn’t even

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     give.” Howard acknowledged that “no one can go back in time”
     and/or tell “who was going to get that job” if the bid had
     changed. In short, while recognizing that even Ohio officials
     familiar with the Ohio criteria and process could do no more than
     speculate about whether Howard might have won the project
     with a lower bid, Howard nevertheless maintained that the jurors
     should have somehow been permitted to reach that conclusion—
     i.e., to reach a probability determination that Howard would
     have secured the project and would have earned a certain profit
     if Howard had lowered its bid price.

            Howard’s request to pursue damages in connection with
     the Zanesville job was untenable. Howard simply did not proffer
     any evidence sufficient to demonstrate anything beyond a
     speculative claim that Howard might have won the project at a
     decreased bid level. Along these lines, Howard suggested no
     reasonable way for the jurors to determine how Ohio officials
     would have applied Ohio criteria to Howard’s bid, and whether
     those officials might or might not have awarded the work to
     Howard had Howard tendered a bid lower than the one actually
     submitted. In sum, whether Howard would have received the
     job was a purely speculative matter.               Under these
     circumstances, the probability of damages sought by Howard for
     the Zanesville job was likewise speculative. Simply put, because
     it could not be proven to any reasonable certainty that Howard
     would have been awarded the project, the likelihood of any
     damages could not be proven with reasonable certainty. Lost
     profits from the Zanesville job were, therefore, entirely
     speculative and unrecoverable.

Trial Court Opinion, 6/17/16, at (some citations omitted).

     Howard complains that Peak improperly used a motion in limine as a

substitute for a motion for summary judgment.         However, it offers no

binding authority to support its claim of error in this regard.     Instead,

Howard relies upon federal court cases that have no precedential effect in

this Court.    See Howard’s brief at 29-30 (citing cases).         The only

Pennsylvania case Howard cites to support its contention that the trial court


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committed a procedural error is Northeast Fence & Iron Works, Inc. v.

Murphy Quigley Co., 933 A.2d 664, 665 (Pa.Super. 2007).                 Howard

suggests that Northeast Fence stands for the proposition that a challenge

to a party’s ability to recover is properly made after the presentation of

evidence at trial, not through a motion in limine. Howard’s brief at 31.

       In Northeast Fence, the plaintiff sued the defendant under the

mutually-exclusive theories of breach of contract and unjust enrichment.1

As the plaintiff indicated that it would introduce evidence of a written

agreement, the defendant filed a motion in limine to preclude recovery

under the unjust enrichment theory. Northeast Fence, supra at 667. In

rejecting the defendant’s argument that the trial court erred in denying the

motion, this Court explained as follows.

       In making this argument, [the defendant] misperceives the
       nature and purpose of a motion in limine. A motion in limine is a
       device for obtaining rulings on the admissibility of evidence prior
       to trial. Herein, [the defendant’s] “motion in limine” did not
       seek to prevent or permit the admission of evidence at trial.
       Instead, [the defendant] was arguing that [the plaintiff’s]
       evidence was going to prevent recovery under an unjust
       enrichment cause of action. This type of challenge is properly
       made after presentation of the evidence, by means of a
       compulsory nonsuit[.]

Id.

____________________________________________


1“A cause of action for unjust enrichment arises only when a transaction is
not subject to a written or express contract.” Heldring v. Lundy Beldecos
& Milby, P.C., 151 A.3d 634, 645 (Pa.Super. 2016) (internal quotation
marks omitted).



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      In the instant case, Peak’s motion did not seek to preclude Howard’s

cause of action for breach of contract or breach of warranty.        Rather, it

challenged the admissibility of the evidence that Howard identified in its

pretrial statement to support some of the damages it claimed flowed from

Peak’s breach.   Hence, contrary to Howard’s assertion, Northeast Fence

validates, rather than disproves of, Peak’s use of a motion in limine.

      Further, this Court has recognized that it is “not uncommon” that a

pretrial evidentiary ruling may effectively determine the result of not merely

an item of claimed damages, but an entire case. Nobles v. Staples, Inc.,

150 A.3d 110, 118 (Pa.Super. 2016) (affirming dismissal of case on

summary judgment after trial court excluded the plaintiff’s expert witness

based upon a motion in limine filed three weeks prior to trial). The fact that

an evidentiary ruling in effect puts a party out of court does not invalidate

the pretrial ruling. Id.

      Turning to Howard’s substantive arguments, we observe that it is well-

established that “a jury cannot be permitted to reach its verdict on the basis

of speculation or conjecture.” Williams v. Dulaney, 480 A.2d 1080, 1083

(Pa.Super. 1984). Howard contends, however, that the speculative nature

of the lost profits from the Zanesville job went to the weight of the evidence,

not whether it was admissible. Howard’s brief at 22 (citing Zieber, supra).

      In Zieber, our Supreme Court considered whether evidence of the risk

of recurrence of cancer could be considered by a jury assessing damages in


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a case alleging that the defendant doctor’s late diagnosis of the plaintiff’s

lymphoma was malpractice.       The defendant contended that such evidence

was inadmissible given the decision in Simmons v. Pacor, Inc., 674 A.2d

232 (Pa. 1996), in which the High Court held that asymptomatic, benign

asbestos-related conditions were not compensable injuries when not

accompanied by actual physical impairment, and the speculative damages

for fear of cancer and increased risk of cancer associated with exposure to

asbestos were not recoverable in the absence of a physical injury.             Id. at

238.   Nonetheless, the Zieber Court held that “evidence of the increased

risk and/or fear of recurrence of cancer is admissible for the purpose of

establishing damages in a medical malpractice case alleging a physician’s

negligence in failing to properly diagnose the disease.”             Zieber, supra at

763.     In so holding, the Court stated the following, upon which Howard

hangs its hat: “Appellants’ concerns regarding the speculative nature of such

damages can be presented to the jury during argument, as such challenges

go to the weight, rather than the admissibility of the evidence.” Id.

       Zieber does not compel reversal in the instant case. Zieber does not

contradict the law, cited above, that, although the presence of guesswork in

putting a dollar value on the harm suffered does not render damages

speculative, conjecture as to the actual existence of damages is not

permissible. See, e.g., Kituskie, supra at 1030 (“Damages are considered

remote    or   speculative   only   if   there    is   uncertainty    concerning   the


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identification of the existence of damages rather than the ability to precisely

calculate the amount or value of damages.”).                 Zieber stands for the

proposition that, although the amount of damages for fear of recurrence of

cancer, as with all emotional distress damages, are not easily quantifiable,

the jury may consider them and render an award it deems appropriate.

Quite    contrary to     Howard’s suggestion,       Zieber’s     holding   is entirely

consistent with the principle that impermissibly-speculative damages are

those the very existence of which cannot be shown with a reasonable degree

of certainty, as opposed to reasonably-certain damages that are not easily

quantifiable.

        The trial court determined that the jury would have to engage in

speculation to identify the existence of any harm to Howard in connection

with the Zanesville job because Howard lacked proof that it was reasonably

likely to have had the successful bid for the Zanesville job had Peak lived up

to its contractual obligations.    Citing Merion Spring Co., supra, Howard

claims that its burden was merely to show that Peak’s breach denied it the

opportunity to fairly compete for the Zaneville job, not to prove that it

definitely would have had the successful bid. Howard’s brief at 21.

        In Merion Spring Co., the defendant-buyer, a Mexican company,

contracted      to   purchase   from   the    plaintiff-seller   used   machines   for

manufacturing automotive springs.            Although the buyer paid part of the

contract price, it refused to tender the balance, citing defects noticed upon


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inspecting the machines.      Merion Spring Co., supra at 690.        The seller

sued for breach of contract, seeking the outstanding balance of the purchase

price, and the buyer counterclaimed, averring that it was the seller who

breached, and demanding damages, including lost profits. Id. at 688. At a

bench trial, the judge found in favor of the buyer and awarded damages.

The trial court en banc granted post-trial relief to the seller, holding that the

buyer had not shown lost profits with sufficient certainty because its

business was unestablished at the time it contracted to buy the machines.

Id. at 688-89. On appeal, this Court reversed, holding that the buyer had

sufficiently proven lost profits.

      The Merion Spring Co. Court rejected the buyer’s contention that

reasonable certainty is necessary only to establish the fact of a loss, not to

prove the amount of the loss, stating as follows:

      our cases stand for the proposition that reasonable certainty is
      required for both the fact of loss and the amount of loss
      sustained. Additionally, we note that this is not a requirement of
      mathematical certainty, but only that the estimate made as to
      the amount of lost profits be reasonably certain. The process of
      estimation, of course, need not be completely free of analytical
      or statistical error for that is the nature of an estimate.
      However, the requirement of reasonable certainty as to the
      amount as well as to the fact of loss assures that the
      finder of fact will not determine the rights of any party
      upon the basis of speculation.

Id. at 696 n.8 (emphasis added).      However, it determined that the buyer

proved both the fact and the amount of lost profits attributable to seller’s

breach.


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      The Court noted that proving lost profits is more easily done in cases

where an established and continuing business is at issue, than in cases

involving a new enterprise that lacks “the business records necessary to

determine [lost] profits with specificity.” Id. at 698. However, it noted that

lost profits from a new business “may be established with reasonable

certainty with the aid of expert testimony, economic and financial data,

market surveys and analyses, business records of similar enterprises, and

the like.” Id. at 696 (internal quotation marks omitted).

      The buyer in Merion Spring Co. offered testimony from its general

manager, Emilio Cano Bazaldua, to prove lost profits, which we quote at

length to contrast with the instant case.

      Cano provided a wealth of details concerning economic and
      financial conditions prevailing in Mexico during the four years
      following the completion of construction of the plant intended to
      house the machinery. Cano provided specific data concerning
      the Mexican government’s protection of domestic manufacturing,
      estimated plant production, prices, direct and indirect labor cost,
      the cost of skilled and supervisory labor, administrative and
      sales staff and operations expense and the broad outlines of the
      applicable tax structure. The figures he produced came from his
      own knowledge; either he personally developed the data in his
      capacity as [the buyer’s] general manager or he was aware of
      the prevailing rates and figures because of his long association
      with the automobile parts industry.         Cano also took into
      consideration the devaluation of the Mexican peso in September,
      1976. At almost every point, Cano utilized patently conservative
      data in estimating [the buyer’s] lost profits, forcing estimated
      income down and estimated expenses up. Under ideal or even
      under more realistic conditions, [the buyer’s] lost profits could
      have been substantially higher. Cano stated that he and his
      accountants arrived at a total estimated lost profits of
      $325,000.00 for the four-year period 1974–1977. Finally, we
      note that, while Cano did not himself perform any mathematical

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      calculations while on the stand, he sufficiently explained the
      necessary operations to enable the fact finder to perform them.
      We conclude that, based on the testimony of Cano, there is
      sufficient evidence to permit a reasonable estimate of [the
      buyer’s] lost profits in the amount originally awarded by the trial
      judge, $200,000.00.

Id. at 697. Although the seller argued that there were flaws in Cano’s data,

the Court rejected the contentions, stating as follows.

      It is not difficult to shoot these estimates full of holes as [the
      seller] has done. On the other hand, . . . we do not think this is
      a case where it can be really said that there would have been no
      profit . . . had the contract been performed. We think there
      would have been some profit. As to the amount, we do not see
      that our estimate can be any better than that of the [fact finder]
      and we are satisfied with what he has done.

Id. at 698 (internal quotation marks omitted).

      The notable difference between Merion Spring Co. and the instant

case is that the buyer in Merion Spring Co. offered evidence to support the

finding that it would have realized some profit from manufacturing

automotive springs if the seller had delivered the twenty-five machines it

had contracted to supply to the buyer. Howard’s evidence as to the fact of

the loss of the Zanesville job consisted solely of its expert calculating what

Howard’s bid would have been had Howard been able to rely upon the Peak

plant, and summarily opining that Howard “would have otherwise been the

successful low-bidder.” Howard’s Pretrial Statement, 10/17/16, Exhibit A at

9. Absent was any discussion of the factors Ohio was required to apply in

awarding the bid and applying them to Howard and the company that

actually was awarded the bid.

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      Howard did not proffer any evidence upon which the fact finder could

have relied to find that Howard would in fact have won the bid from the Ohio

government if only Peak had not breached the contract.         Hence, the trial

court excluded those lost-profit calculations derived wholly from the

Zanesville project based upon the speculative nature of the fact of the

alleged harm.     The exclusion was not based upon lack of reasonable

certainty as to the amount of profits Howard would have realized if it had the

winning bid on the Zanesville job, or even upon a finding that Howard failed

to show that it would have made some additional profits if Peak’s mixing

plant worked as it should have.      Indeed, the trial court did not exclude

Howard’s evidence of lost profits suffered on other jobs resulting from

defects in the Peak plant, and did not preclude evidence which would have

established generally the existence of a market for Howard’s services in

which it was unable to compete because Peak breached the contract.

Rather, the trial court’s ruling that Howard’s Zanesville-job-based lost profits

evidence was speculative was based upon the lack of evidence that could

establish with reasonable certainty that Howard in fact suffered the loss of

the Zanesville job because of Peak’s breach.

      Based upon our review of the record and the applicable law, we

conclude that the trial court’s ruling to preclude evidence of profits Howard

purportedly lost from the Zanesville job was reasonable and consistent with

Pennsylvania decisions requiring the exclusion of speculative evidence in a


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variety of contexts.     See, e.g., Rohe v. Vinson, 158 A.3d 88, 101

(Pa.Super. 2016) (holding trial court should have excluded testimony that

was “simply too speculative and highly prejudicial”); Ratti v. Wheeling

Pittsburgh Steel Corp., 758 A.2d 695, 708 (Pa.Super. 2000) (ruling there

was no error excluding evidence that was “based upon second-hand

information or mere speculation”); Kearns by Kearns v. DeHaas, 546 A.2d

1226, 1235 (Pa.Super. 1988) (remanding for a new trial where the trial

court allowed a witness to offer a speculative opinion); see also Appeal of

Carnegie, 53 A.2d 425, 427 (Pa. 1947) (holding it was reversible error to

admit “speculative and conjectural” estimates of value based upon “assumed

facts of what might or might not occur”); Glencannon Homes Ass’n, Inc.

v. N. Strabane Twp., 116 A.3d 706, 721 (Pa.Cmwlth. 2015) (“Speculative

testimony or testimony made without reasonable certainty does not aid the

trier of fact and should be stricken.”).

      For the foregoing reasons, we conclude that the trial court did not

abuse its discretion in granting Peak’s motion in limine, and affirm the

judgment entered on the jury’s verdict.

      Judgment affirmed.




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J-A02011-18




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/27/2018




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