Hoover Contracting v. McNaughton, D.

J-A24014-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HOOVER CONTRACTING COMPANY, : IN THE SUPERIOR COURT OF INC., A CORPORATION : PENNSYLVANIA : Appellant : : : v. : : : No. 1497 WDA 2019 DAVID MCNAUGHTON AND SARAH : MCNAUGHTON, TWO INDIVIDUALS :

Appeal from the Judgment Entered September 5, 2019 In the Court of Common Pleas of Allegheny County Civil Division at No(s): AR-15-004756, GD-15-020762

BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and MUSMANNO, J. MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 18, 2020

Hoover Contracting Company, Inc. (Hoover Contracting) appeals from the September 5, 2019 order, that entered judgment on the February 22, 2019 jury verdict in Hoover Contracting’s favor and on the July 23, 2019 non-jury verdict in favor of David and Sarah McNaughton (the McNaughtons), the homeowners. After review, we affirm.

The jury verdict was rendered in favor of Hoover Contracting in the amount of $80,000.00, while the non-jury verdict was rendered in favor of the McNaughtons in the amount of $59,506.49. The trial court explained that the reason for holding both a jury trial and a non-jury trial was due to the fact that a violation of the Home Improvement Consumer Protection Act (HICPA), 73 P.S. §§ 517.1 – 517.18, which is deemed a violation of the Unfair Trade

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Practices and Consumer Protection Law (UTPCPL), 73 P.S. § 201-1 et seq., does not provide for a right to a jury trial. See Trial Court Opinion (TCO), 12/12/19, at 4 (n. 2).

However, before we are able to address Hoover Contracting’s appeal, we are compelled to determine whether the appeal must be quashed pursuant to Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), in light of the fact that the order appealed from contains two lower court docket numbers that would require the filing of two separate appeals.1 Upon receipt of the notice of appeal, this Court issued a rule to show cause, directing Hoover Contracting to explain why the appeal should not be quashed. Hoover Contracting complied, explaining:

In the case at bar, the action was completely consolidated pursuant to Pa.R.C.P. 213(a) because both causes of action arise [] out [of] the same transaction or occurrence, the identities of the parties are identical and the claims and defenses are exactly the same. Both actions arose out of disputes regarding the same contract and included the same claims and defenses with respect to all parties. This is clearly evidenced by the New Matter and Counterclaim filed by Hoover Contracting at docket number GD- 15-020762[,] which specifically references docket number AR-15- 004756[,] and reiterates the averments of its Complaint in the form of a New Matter and Counterclaim. Likewise, the New Matter and Counterclaim filed by the McNaughtons at docket number AR- 15-004756 specifically incorporates by reference their Complaint filed at docket number GD-15-070602 and also reiterates the averments of its Complaint in the form of a New Matter and Counterclaim. Clearly, the identical parties and their identical ____________________________________________

1 Walker states that “when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed. The failure to do so will result in quashal of the appeal.” Walker, 185 A.3d at 977.

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claims arise out of the same transaction or occurrence and were completely consolidated for all purposes, including appealability. Furthermore, the only Order that would have any effect on both causes of action would be the Order dated March 30, 2016[,] which completely consolidated the causes of action under AR-15- 004756[;] however[,] such Order was never entered at docket number GD-15-020762, was consented to by all parties[,] and is not the subject of this appeal. The jury verdict of February 25, 2019 and the nonjury verdict of July 23, 2019[,] and the final Order entering judgment on all of the parties[’] claims dated September 5, 2019, from which this appeal arises, were all only docketed at AR-15-004756 and not at GD-15-020762[;] there is no verdict or judgment docketed at GD-15-020762.

Thus[,] it was appropriate to completely consolidate the cases under Pa.R.A.P. 213(a) for all purposes, including appealability[,] and as such [Hoover Contracting] has properly perfected its appeal by filing a timely Notice of Appeal at docket number AR- 15-004756 and [the matter] should not be quashed.

Hoover Contracting’s Response to Rule to Show Cause, 10/24/19, at 4-5 (unnumbered).

In reviewing the record, we are aware that the trial court here explained in its opinion that it “consolidated docket no. GD-15-20762 into no. AR-15-4756[,] and assigned responsibility for resolving the dispute to [the present judge].” TCO at 4. Furthermore, Hoover Contracting’s response to this Court’s Rule to Show Cause points out that the two cases were consolidated under AR-15-004756, pursuant to the trial court’s March 30, 2016 order, and that the order was not listed on the docket for GD-15-020762; rather, it was only listed on the AR-15-004756 docket. More importantly, the record only contains docket entries for AR-15-04756. There is no list of docket entries contained in the record under GD-15-020762. Moreover, we note that despite the trial court’s order providing for consolidation and the lack of a list of docket

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entries for GD-15-020762 in the record, the trial court’s September 5, 2019 order lists both docket numbers without any reference to the consolidation. Also, the caption on Hoover Contracting’s notice of appeal filed with this Court, contained the following:

No.: AT 15-4756 AND NOW CONSOLIDATED WITH No. GD 15-020762 (at AR 15-004756)

Hoover Contracting’s Notice of Appeal, 10/4/19. Accordingly, because of these confusing circumstances, we decline to quash the appeal. Cf. Commonwealth v. Stansbury, 219 A.3d 157 (Pa. Super. 2019) (refusing to quash appeal due to court’s misstatement, which operated as a breakdown in the court’s operation).

We now turn to the specifics of Hoover Contracting’s appeal, which takes issue with the judgment resulting from the non-jury trial. Hoover Contracting’s six issues are stated in its brief as follows:

I. Did the [t]rial [c]ourt make an error of law and abuse its discretion in finding that [the] McNaughtons suffered an ascertainable loss of money as a result of [Hoover Contracting’s] violations of HICPA and the UTPCPL when the [j]ury verdict found in favor of [Hoover Contracting] on all of [the] McNaughtons’ common law claims for damages and awarded [Hoover Contracting] $80,000.00 on its unjust enrichment claim.

II. Did the [t]rial [c]ourt commit an error of law and abuse its discretion in determining that Hoover Contracting [] was not justified in leaving the project prior to completion despite the McNaughton[s’] failure to make the agreed[-]upon payments in addition to their notice not to return to the job.

III. Did the [t]rial [c]ourt err in determining that [Hoover Contracting’s] failure to install the beam pursuant to the

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architectural plans resulted in an ascertainable loss of money or property to the McNaughton[]s entitling them to damages under the UTPCPL in light of the fact that the [j]ury found that [Hoover Contracting] had not breached the contract or violated any warranties of workmanship or[] habitability and was not negligent and that the beam reflected in the plans would not fit, was not necessary and [the] McNaughtons would not pay for it.

IV. Did the [t]rial [c]ourt abuse its discretion or commit an error of law in determining that the McNaughton[]s had established any reckless, deceptive conduct that would warrant an award of treble damages under the UTPCPL.

V. Did the [t]rial [c]ourt commit[] an abuse of discretion and error of law in allowing the admission of [d]efense [c]ounsel’s legal bills and awarding attorney’s fees to the McNaughton[]s which amounts to nearly three times their actual damages.

VI. Did the [t]rial [c]ourt commit an error of law in determining that prejudgment interest on an award under quantum meruit was discretionary and not a matter of right.

Hoover Contracting’s Brief at 6-7.

We next set forth our standard and scope of review, which are wellsettled.

Our review of the trial court’s decision after a non-jury trial is limited to determining whether the findings of the trial court are supported by the competent evidence and whether the trial court committed error in the application of law. It is not our role to pass on the credibility of witnesses, as the trial court clearly is in the superior position to do so.

Ramalingam v. Keller Williams Realty Group, 121 A.2d 1034, 1041 (Pa. Super. 2015) (quoting Kornfeld v. Atl. Fin. Fed., 856 A.2d 170, 173 (Pa. Super. 2004)).

Having reviewed the certified record, the briefs of the parties, the applicable law, and the thorough opinion authored by the Honorable Alan D.

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Hertzberg of the Court of Common Pleas of Allegheny County, dated December 12, 2019, we conclude that Judge Hertzberg’s well-reasoned opinion accurately disposes of the issues presented by Hoover Contracting on appeal and we discern no abuse of discretion or error of law. Accordingly, we adopt Judge Hertzberg’s opinion as our own for purposes of appellate review and affirm the judgment from which this appeal arose.

Judgment affirmed. Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/18/2020

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