HomeMy WebLinkAbout2012-7259
SECHRIST : IN THE COURT OF COMMON PLEAS OF
CONSTRUCTION, INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff, :
: CIVIL ACTION – LAW
v. :
:
ROBERT J. HARPSTER, : Trial Ct. No. 2012-07259
Defendant : Superior Ct. No. 1393 MDA 2017
OPINION PURSUANT TO PA.R.A.P. 1925
Peck, J., January 18, 2018 –
In this civil case involving a breach of contract in the construction of a residence,
Plaintiff, a Pennsylvania corporation engaged in the business of contracting, sued
Defendant for Defendant’s alleged failure to timely pay Plaintiff amounts specified in the
construction contract and for Defendant’s alleged interference with the Plaintiff’s timely
1
completion of its duties under the contract. The Defendant counter-sued the Plaintiff for
unsatisfactory workmanship in the construction of his residence, which formed the basis
2
of the Defendant’s breach of contract counter-claim against the Plaintiff. A jury trial was
held on March 27-30, 2017, after which the jury found in favor of Plaintiff on Plaintiff’s
3
claim and Defendant’s counter-claim and awarded the Plaintiff $102,568.96 in damages.
4
Accordingly, this Court entered an Order in favor of the Plaintiff on March 30, 2017.
Following a post-judgment motion by the Plaintiff to mold the jury verdict to include
statutory interest, this Court entered an Order molding the verdict to include pre-
judgment interest at the statutory rate of 6% per annum for a total of $129,579.72 on
5
August 21, 2017. On August 29, 2017, this Court denied Defendant’s Motion for Post-
1
See generally Pl.’s Compl., November 30, 2012.
2
See generally Def.’s Answer with New Matter and Counterclaim to Pl.’s Compl., January 8, 2013.
3
In Re: Verdict/Request to Mold Verdict/Withdraw Claim for Unfair Trade Practices, Order of Court,
March 30, 2017 (Peck, J.).
4
Id.
5
Order of Court, August 21, 2017 (Peck, J.).
67
Trial Relief. The Defendant filed a Notice of Appeal on September 5, 2017. Pursuant to
Pa.R.A.P. 1925(b), Defendant filed the following statement of errors complained of on
8
appeal:
1) Lack of breach of contract jury instructions regarding both
testimony and evidence presented during the trial: (a) 19.150 Burden
of Proof – Oral Modification of a Written Contract an nom (No Oral
Modification) Clause; (b) 19.170 Condition Precedent; (Restatement
(Second) of Contracts §224), (c) 19.210 Anticipatory
Breach/Repudiation of Contract; and (d) 20.10 Creation of an
Express Warranty.
2) The breach of contract jury instructions were not sufficiently
clear and definitive in setting forth the Plaintiff or Defendant’s
possible actions: (a) 19.110 Material and Immaterial Breaches; and
(b) 5.10 Clear and Convincing Evidence.
3) The Court’s verdict slip did not require the jury to vote as to
whether there was a material and immaterial breach of the contract
through considering the five prong test derived from the Restatement
(Second) of Contracts §241 to be conducted when evaluating
evidence to determine if a breach of contract had actually occurred,
as well as those subsequent actions of the non-breaching party who
erroneously treats an immaterial breach as a material breach and
treats the contract has \[sic\] ended.
4) The breach of contract jury instructions were not sufficiently
clear and definitive in setting forth Plaintiff of Defendant’s possible
damages: (a) 17.270 Damages – Fraudulent Misrepresentation or
Nondisclosure; (b) 19.250 Damages; and (c) 19.260 Mitigation of
damages.
5) Lack of jury instructions regarding the unauthorized use and
substitution of nonstandard products for specified Trademark
products integral to the construction contract and related
specifications presented during the trial: (a) 16.00 Harm to Persons
6
In Re: Motion for Post-Trial Relief of Def., Robert J. Harpster, Order of Court, August 29, 2017 (Peck,
J.).
7
Def.’s Notice of Appeal (September 5, 2017).
8
We also note that Defendant filed a Supplemental 1925(b) statement on October 24, 2017. This Court,
pursuant to an Order dated December 1, 2017, denied consideration of Defendant’s supplemental 1925(b)
statement. We subsequently denied Defendant’s request for reconsideration of our December 1, 2017
Order on January 12, 2018. Therefore, the arguments raised in Defendant’s supplemental 1925(b)
statement will not be addressed here. See Supplemental Defendant 1925(b) Concise Statement of Errors
and Other Matters, October 24, 2017; Order of Court, December 1, 2017 (Peck, J.); Order of Court,
January 12, 2018 (Peck, J.).
2
Resulting From Reliance on Seller’s Misrepresentation of a Material
Fact-Restatement (Second) of Torts §402B; and (b) 19.130
Modification.
6) Lack of jury instructions regarding Unfair Trade Practices
and Consumer Protection Laws that were integral to the Defendant’s
counterclaim were not referenced in jury instructions as was the
Plaintiff’s unfair enrichment claim.
7) Lack of depositions and interrogatories related jury
instructions regarding both testimony and evidence presented during
the trial: (a) 3.10 Evidentiary Admissions-Answers to
Interrogatories; (b) 3.20 Admissions of Fact (pleadings, responses to
requests for admissions, interrogatories, stipulations of facts), and (c)
3.00 Deposition Testimony and Videotaped Testimony.
8) The Court’s molding of the jury verdict to include pre-
judgment interest which was not supported by an amount
determinable nor to be determined from the terms and conditions of
the contract.
9) The Court undermined the Defendant’s direct testimony as a
“lay person” when it directed Defendant’s attorney to prohibit the
Defendant’s usage of the word “mold” on March 29, 2010 \[sic\]
when referencing any stains on the wall. The Plaintiff attorney
pleads with the Court on March 29, 2017 (TR Pg 6) “if this would
have \[sic\] been brought to our attention…some sort of
environmental inspection or hazard inspection to \[sic\] be done…”
(See attachment (Exhibit A) Pictures of foundation walls with stains,
dehumidifier logs, and CDC information on mold were forwarded
February 16, 2017 and February 21, 2017). The Court warns the
Defendant’s attorney of a possible Discovery violation when no
warning was appropriate.
10) Plaintiff representative’s subpoenas for witnesses who
testified, as well as documents (Fairview Township Building Permit
st
File and Members 1 FCU mortgage file) which were never
provided to the Defendant pursuant to the rules of Discovery were
permitted by the Court. Plaintiff attorney admits on the record that
document subpoenas were issued and not disclosed to Defendant.
11) Plaintiff Attorney misconduct regarding Discovery
violations, as well as, false and misleading statements to the jury and
Court.
12) The Court’s list of Plaintiff exhibits provided to the jury
included a description of a Defendant email referenced as a
“Termination Email” which was highly pre-Judicial \[sic\]. The title
of the Defendant’s email was “NOTIFICATION – BREACH OF
3
CONTRACT & PROHIBITED ACCESS TO PROPERTY UNTIL
FURTHER NOTICE.”
13) Plaintiff expert witness testimony relied upon a moisture
gage which he admitted lacked the capability to determine the
amount of water that was either possibly passing through the exterior
foundation block wall face or the amount of water that was possibly
accumulating inside the foundation block wall. In addition, despite
the fact that a dehumidifier was continually cycling at a 55%
humidity rate during his inspection on March 15, 2017 in the
presence of the Plaintiff and Defendant attorneys, Plaintiff,
Defendant, and Defendant’s brother, he testified that he found
humidity levels of less than 19% throughout the Defendant’s
basement. The testimony did not satisfy the Frye standard for
admissibility of scientific, technical, and or other specialized
knowledge with respect to his “evaporation theory” and associated
recommendation.
14) Plaintiff witness Derick Trout testifies as an expert relative to
water infiltration, condensation, and weather related issues to thwart
the required expert disclosure and discovery process.
15) The Court allowed the testimony of Plaintiff’s witness,
Steven Gertz, who admitted on several occasions during direct
testimony that he didn’t have his reading glasses and couldn’t read
several documents that were entered into evidence.
16) Juror communicating privately with the Court who is
confused about ongoing testimony and questions the fairness of our
court system including verdicts of some publicized cases of which
these topics were not disclosed to the Defendant in their entirety by
the Court for further consideration.
17) Juror(s) no. MAR-27-321 (Bar Scan No. 17) and the
Caucasian male juror with black rim glasses sitting next to him were
permitted to periodically sleep throughout the trial during the
9
testimony of the Plaintiff, Defendant and other witnesses.
Based upon the above alleged errors, the Defendant prays for the Court’s
10
judgments to be vacated and a new trial to be granted. Pursuant to Pa.R.A.P. 1925(a),
this opinion is written in support of this Court’s judgments.
9
Def.’s Concise Statement of Errors and Other Matters Pursuant to PA Rule 1925(b) Regarding the Final
Order Entered in the Docket on Sep. 1, 2017 and Aug. 30, 2017 Non-Final Order (October 2, 2017).
10
Id.
4
FINDINGS OF FACT
The Plaintiff’s evidence in support of its claim for breach of contract against
Defendant was as follows:
The Plaintiff and Defendant entered into a contract for the construction of
11
Defendant’s home on February 3, 2012. The contract included specifications for the
home to guide how the project was to be completed, and a “draw schedule” to specify
12
when and how much the Plaintiff would be paid for its performance. It also contained
language which provided that in the event of a breach, the non-breaching party could
collect 10% of the remaining balance of the contract from the breaching party as
13
liquidated damages. The Defendant paid the first three draws to the Plaintiff, but
14
withheld payment of the fourth and final draws.
15
Eric Sechrist, the owner of Sechrist Construction, Inc., testified that Defendant
16
did not follow his advice. Defendant insisted on interviewing all of Plaintiff’s
17
subcontractors before they could start work. Defendant made several changes once the
18
work started. Defendant did work himself and hired his own subcontractors instead of
19
using Plaintiff’s subcontractors on several occasions, which delayed construction.
Defendant was present at the work site most days, told Plaintiff and Plaintiff’s
11
See Transcript of Proceedings, 61, March 27, 2017 (hereinafter “N.T. at ___”).
12
See Pl.’s Exhibit 2, “Agreement” dated February 3, 2012 (March 28, 2017); see also Pl.’s Exhibit 10,
“Disbursement Schedule” (March 28, 2017).
13
See Pl.’s Exhibit 2, “Agreement” dated February 3, 2012, 2-3 (March 28, 2017).
14
N.T. at 92, 110; see also Transcript of Proceedings, 186-87, March 28, 2017 (hereinafter “N.T. Vol. II
at ___”).
15
We refer to Mr. Sechrist and Sechrist Construction, Inc. interchangeably as “Plaintiff” throughout this
opinion.
16
Plaintiff advised Defendant before the project began that he should change the grade of the home by
filling the excavation hole and impacting the fill to improve future drainage of the home; Defendant
declined to make these changes. N.T. at 60-61. On cross-examination, Defendant denied ever having this
conversation with Plaintiff. Transcript of Proceedings, 78, March 29, 2017 (hereinafter “N.T. Vol. III at
___”). Plaintiff also advised Defendant to use soil to backfill around the garage and front of the house to
improve drainage, but Defendant wanted to use stone and executed a change order to that effect. N.T. at
74-75.
17
N.T. at 62-63, 84-85, 110.
18
See Pl.’s Compl., Exhibit B – Change Orders, November 30, 2012.
19
N.T. at 85-87, 92-94.
5
20
subcontractors how to do their jobs, and made them redo work they had already
21
finished. Defendant often insisted on more or different work and changes that caused
22
unnecessary delay. Plaintiff always accommodated Defendant’s requests, often paying
23
for changes himself. Defendant’s interference kept Plaintiff from completing the project
24
by the deadline.
Plaintiff received an email from Defendant terminating him from the job on
25
November 9, 2012. The email stated that Plaintiff was forbidden from doing any more
26
work on the property until further notice. Plaintiff was instructed to remove everything,
27
including his tools, from the property. As a result, Plaintiff was prevented from further
28
performance under the contract. Even though Defendant never released the final two
29
draws, Plaintiff paid all of his subcontractors in full for their work.
The manager from Defendant’s lending bank testified that before the bank would
approve any draws on a construction loan, certain specific portions of the work had to be
done on the project and the bank’s appraiser would have to do an inspection and
30
authorize release of the funds. The bank’s appraiser testified that the draw schedule
attached to the parties’ agreement was a boilerplate schedule prepared by the bank, and
that the work necessary to release each draw could vary from builder to builder
20
N.T. at 68-71, 78, 81-83.
21
Defendant made Plaintiff dig up rocks and clean them. N.T. at 77. Defendant made the roofer
redistribute unplaced shingles to different areas of the roof. N.T. at 80.
22
Defendant changed the type of mortar to be used in the basement after the mortar had been delivered to
the job site. N.T. at 66. Defendant would only allow specific pieces of lumber to be used. N.T. at 79.
Plaintiff shut down the project for 1-2 days while awaiting delivery of new trusses because Defendant
would not accept the ones that were delivered. N.T. at 83. Defendant wanted different kitchen cabinets
than the ones Plaintiff would provide, at a cost of about twice the allowance under the construction loan.
N.T. at 89. Plaintiff, the waterproofing subcontractor, and the excavator returned to the jobsite several
times to do additional work when Defendant wanted to raise the grade of the house. N.T. at 100-01.
23
N.T. at 131, 141.
24
N.T. at 122-23, 127.
25
N.T. at 94-95.
26
N.T. at 95; see also Pl.’s Exhibit 6, Termination Email dated 11/09/12, March 27, 2017.
27
N.T. at 118-19.
28
N.T. at 97.
29
N.T. at 97-98.
30
N.T. Vol. II at 16-17.
6
31
depending on how they organized the build timeline. The actual release of funds under
each draw was based upon the appraiser’s judgment of whether an adequate amount of
progress had been made since the last draw, and not on exactly what was written in the
32
draw schedule. It is common practice to approve a draw even if every single item has
33
not been completed at that point. The appraiser personally inspected the property prior
to the release of each draw, and on October 21, 2012, found that the progress on the
34
construction was adequate to release the fourth draw to Plaintiff. The Fairview
35
township building inspector also testified that he inspected the house at various times
36
during construction and everything was up to code. Defendant contacted the lender in
37
order to stop payment to Plaintiff on the fourth draw. The fourth and fifth draws were
38
paid directly to Defendant.
Darrick Trout, Plaintiff’s waterproofing technician, testified that he took extra care
and time to apply the waterproofing membrane to the walls and gaged his work as he
went to ensure that every area of the membrane was done correctly and was the proper
3940
thickness. He applied the waterproofing according to the manufacturer’s warranty,
and a water test showed that there was no water infiltration into the basement through the
41
membrane. Upon questioning regarding sagging in the membrane, Mr. Trout testified
that sagging in the material once sprayed is typical where there is extra thickness, and is
42
not a concern as to the quality of the waterproofing material or its application. Gary
Albright, another of Plaintiff’s subcontractors who assisted with waterproofing the
31
N.T. Vol. II at 56-61.
32
Id.
33
N.T. Vol. II at 60-61.
34
N.T. Vol. II at 18, 66-67.
35
The subject property at issue here is located in Fairview Township.
36
N.T. Vol. II at 149, 154-55, 157-59.
37
N.T. Vol. II at 22.
38
N.T. Vol. II at 29.
39
N.T. Vol. II at 78, 100.
40
N.T. Vol. II at 83-84.
41
N.T. Vol. II at 100.
42
N.T. Vol. II at 93-94. Bubbling of the material is also not a concern as long as the minimum thickness
of the material has been met in those areas. N.T. at 100.
7
43
foundation and basement, witnessed a water test that was performed by Tremco. No
water was infiltrating into the basement during that test, except where the technician
specifically placed a hose against a non-waterproofed block to show Defendant how the
44
waterproofing worked. Plaintiff personally observed another waterproofing test on the
45
basement, and no water infiltration was observed at that time. Any water infiltration or
drainage problems on the property that might have occurred after Plaintiff stopped work
46
was the fault of Defendant. Plaintiff’s engineering expert also investigated whether
there was water infiltration in Defendant’s basement in February of 2013 and again in
47
March 2017. He used two types of moisture readers to measure the moisture wherever
48
he saw efflorescence. The moisture levels on the walls’ surfaces were within or below
4950
the normal range. There was no water infiltration. Any moisture the Defendant
experienced could be remedied by applying a coat of special paint to the walls before
51
finishing the basement.
52
The Ivany block manufacturer testified that Defendant was provided with the
specifications for the generic Ivany block at the beginning of the project and did not
53
object to its use. He also stated that the primary difference between generic and
54
trademarked Ivany block is compression strength. Tests done on the two blocks also
43
N.T. 145-46. Tremco is the manufacturer of the waterproofing membrane that was used on Defendant’s
home. N.T. at 144.
44
N.T. at 147-49.
45
N.T. at 98-99.
46
After Plaintiff ceased working on the property, Defendant hired his own subcontractors to fill the
garage and driveway area with materials other than those initially recommended by Plaintiff. The manner
in which those contractors completed the final grading of the home only served to exacerbate any
drainage issues. N.T. at 135-38.
47
N.T. Vol. III at 143.
48
N.T. Vol. III at 144, 151-52.
49
N.T. Vol. III at 144, 148.
50
N.T. Vol. III at 150-51, 157-58.
51
N.T. Vol. III at 145-46.
52
Ivany block is the type of block that was used in the subject property’s basement.
53
N.T. Vol. II at 112.
54
N.T. Vol. II at 113-14. The trademarked Ivany block had a compression strength of 3,000 PSI and the
generic block used for the project had 2,200 PSI. The witness stated that PSI was not relevant to the
performance of the block except in high-rise construction. N.T. Vol. II at 114.
8
reveal that the generic block that was actually used was superior in quality to the
55
trademarked block with respect to water absorption.
56
Defendant’s landscaper is a former personal friend of Defendant. He did
excavation work on the property before Plaintiff was hired and built drain spouts,
57
finished the retainer wall, and put in the lawn after Plaintiff was no longer on the job.
58
Defendant did not pay him for all of the work that he did. Robert Ott was a painter that
was originally a subcontractor for Plaintiff, but became Defendant’s subcontractor for
59
this project as a favor to Defendant because he knew him personally and to save
60
Defendant money. He was fired by Defendant after finishing almost all of his painting
6162
work, and was not paid the final one-third of what he was owed by Defendant.
The Defendant’s evidence in support of his counter-claim for breach of contract
against Plaintiff was as follows:
Defendant testified that Plaintiff breached the contract by not providing the
63
trademark Ivany block specified in the contract, not completing the construction of the
64
home, and performing a myriad of things inadequately under the contract. There were
problems in the construction that Defendant uncovered on his own and brought to others’
65
attention to be corrected. There were other problems that Defendant had to correct by
55
The generic block has a capacity to absorb 11.6 pounds of water per cubic foot and the trademarked
block has an 11.9 lb. capacity. N.T. Vol. II at 115-16. Although negligibly different in this case, a lower
absorption rate is generally better to prevent moisture intrusion. N.T. Vol. III at 124-25.
56
N.T. Vol. II at 119-20, 125.
57
N.T. Vol. II at 121-22.
58
N.T. Vol. II at 123-25, 130.
59
N.T. Vol. II at 166.
60
N.T. Vol. II at 163-64.
61
The Defendant complained about the paint job and fired the witness before giving him the chance to
correct the perceived problem. N.T. Vol. II at 165.
62
N.T. Vol. II at 164-65.
63
Defendant chose the trademarked Ivany block because of a brochure that Plaintiff had provided to him,
and getting that exact block was an important part of the contract. N.T. Vol. II at 188-190.
64
N.T. Vol. II at 192, 196-97; N.T. Vol. III at 16-17, 56-59, 61-62, 64.
65
The water line had to be moved. N.T. Vol. II at 194. The sewer lines in the basement were hazardously
placed. N.T. Vol. II at 194. Two roof trusses were cracked. N.T. Vol. II at 195-96; N.T. Vol. III at 25-26.
Rough plumbing had to be moved. N.T. Vol. III at 78-79.
9
66
himself. Defendant has to constantly run a dehumidifier in the basement and cannot use
67
the basement. Time and completion of construction has not remediated the water
68
infiltration issue in the basement. Water containment on the outside of the property also
69
continues to be an issue.
70
At the time the “termination” email was sent to Plaintiff, Defendant was still
71
interested in maintaining a contractual relationship with Plaintiff. Defendant did not
release the fourth and final draws to Plaintiff because portions of the work that were to be
72
completed before the fourth draw could be paid were not done, and Defendant did not
want to give Plaintiff any more money until the water infiltration issue in the basement
73
was resolved.
Defendant’s expert engineer testified that in November of 2014 and again in
March 2015 he personally investigated whether there was water infiltration in
74
Defendant’s basement. He determined that there was and continues to be moisture in
the basement caused by voids in the waterproofing membrane, and not as the result of
75
condensation. He also stated that the final grading of a house is an integral factor in
66
Defendant squeegeed water that was pooling on the sub-floors. N.T. Vol. II at 198-99. He purchased
tarps to prevent the sub-floors from becoming dirty. N.T. Vol. III at 63, 81-82. Defendant hired a
subcontractor to backfill so he could have a driveway and porch due to originally incorrect grading. N.T.
Vol. II at 201; N.T. Vol. III at 69-70. He built a retaining wall. N.T. Vol. III at 19.
67
N.T. Vol. II at 203-204. Defendant also stated he observed mold growth in the basement. N.T. Vol. II at
198-99.
68
N.T. Vol. III at 29-30, 44-45, 50.
69
N.T. Vol. III at 47-49.
70
See Pl.’s Exhibit 6, Termination Email dated 11/09/12, March 27, 2017.
71
N.T. at 117; N.T. Vol. III at 50-51.
72
The final electrical work, installation of kitchen appliances, and retaining walls were not completed.
N.T. Vol. II at 51-52. According to the draw schedule, these items were to be finished before the fourth
draw was authorized. N.T. Vol. II at 37-38. Defendant understood that the manufacturer had to be paid
before the kitchen cabinets and tops would be installed. N.T. Vol. II at 191-92. Plaintiff testified that it is
typical to pay for installation of the kitchen after it is completed, to make sure the materials are
satisfactory. N.T. at 135.
73
N.T. Vol. III at 82-86.
74
N.T. Vol. III at 112-115.
75
N.T. Vol. III at 115, 117-18.
10
ensuring that water will drain away from the home effectively and maintaining the
76
effectiveness of a waterproofing membrane.
DISCUSSION
We begin by addressing the standards of review applicable to Defendant’s claims.
Here Defendant claims many errors of various types, but broadly challenges the
sufficiency of the evidence to sustain the jury’s verdict and complains of several of the
Court’s decisions throughout the trial regarding evidentiary and procedural matters. Each
of the Defendant’s claimed errors are meritless.
Admission of evidence is within the sound discretion of the trial court and rulings
on the admissibility of evidence will not be overturned on appeal absent an abuse of
discretion. Smalls v. Pittsburgh-Corning Corp., 843 A.2d 410, 413 (Pa. Super. 2004). An
abuse of discretion is “more than just an error in judgment” and only occurs when the
judgment exercised was “manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will.” Commonwealth v. Smith, 673 A.2d 893, 895 (Pa. 1996). Furthermore,
we have discretion in deciding the content and phrasing of jury instructions, so long as
the concepts are clear and accurate when presented to the jury. Commonwealth v. Stokes,
615 A.2d 704, 708 (Pa. 1992). We also have discretion to overlook procedural defects
77
and forgive harmless errors in order to expedite the judicial process.
When a jury has heard a case and delivered a verdict, a new trial will not be
granted unless the jury’s verdict is so contrary to the evidence as to shock one’s sense of
justice and a new trial is a necessary remedy. Lanning v. West, 803 A.2d 753, 765 (Pa.
Super. 2002). “A new trial will not be granted on the ground that the verdict is against the
weight of the evidence where the evidence is conflicting and the fact finder could have
76
N.T. Vol. III at 125. The final grading of the home was performed by Defendant. Id.
77
See Pa.R.C.P. No. 126 (“The \[civil procedure\] rules shall be liberally construed to secure the just,
speedy and inexpensive determination of every action or proceeding to which they are applicable. The
court at every stage of any such action or proceeding may disregard any error or defect of procedure
which does not affect the substantial rights of the parties.”); See also Rubenstein v. Southeastern
Pennsylvania Transp. Authority, 668 A.2d 283, 286 (Pa. Cmwlth. 1995) (“\[Pa.R.C.P. No. 126\] functions
to grant the trial court latitude to overlook any procedural defect that does not prejudice the rights of a
party.”).
11
decided in favor of either party.” Id. Our decision to uphold the jury’s verdict may only
be reversed if we “acted capriciously, abused \[our\] discretion, or committed an error of
law that controlled the outcome of the case….If there is any support in the record for the
Court's decision to deny a new trial, that decision must be affirmed.” Price v. Chevrolet
Motor Div. of General Motors Corp., 765 A.2d 800, 807 (Pa. Super. 2000) (internal
citations omitted).
Here there was sufficient evidence to support the jury’s verdict finding that
Defendant breached the contract with Plaintiff, and that damages in the amount awarded
to Plaintiff were appropriate. There was no abuse of discretion or any harmful error on
the part of this Court that would warrant any relief that Defendant has requested. This
Court’s decisions to enter the verdict as found by the jury and deny Defendant’s request
for a new trial should be affirmed.
We now turn to address each of Defendant’s errors.
a. Jury Instructions and Verdict Slip
Defendant’s errors numbered one through seven allege various deficiencies in,
absences of, or other issues with the jury instructions and verdict slip.
As a threshold matter, in order to properly preserve an issue upon appeal
concerning the form or content of jury instructions or a verdict slip, the complaining
party must timely object. Commonwealth v. Gonzalez, 112 A.3d 1232, 1240 (Pa. Super.
2015); Commonwealth v. DuPont, 730 A.2d 970, 984-85 (Pa. Super. 1999). A defendant
must make a specific and timely objection at trial to a particular jury instruction, or
waiver will result. See Pa.R.A.P. Rule 302 (b); Commonwealth v. Charleston, 16 A.3d
505, 527 (Pa. Super. 2011). Furthermore, as attorneys for each party act as the
representatives of their clients, any acts performed and statements made by the attorney
within the scope of his or her employment and authority are binding upon the client.
Walck v. Dept. of Transportation, Bureau of Driver Licensing, 625 A.2d 1276 (Pa.
Cmwlth. 1993). Any stipulation or lack of objection made by the party’s attorney during
the course of the proceeding is imputed to his or her client, along with any resulting
waiver of the client’s rights.
12
Here, we provided each party ample opportunity to submit its own proposed jury
78
instructions. Each party, in fact, did submit its own jury instructions. Thereafter, we
took each side’s suggestions and incorporated them where appropriate into our own
instructions. No instructions regarding Plaintiff’s unfair Enrichment claim or Defendant’s
79
Unfair Trade Practices claim were necessary, as neither claim went to the jury.
Instructions regarding the clear and convincing standard of proof were not required, as
the only claim before the jury (e.g. breach of contract) required each party to respectively
80
prove his claim by a preponderance of the evidence. Neither party raised an objection to
any of the jury instructions in their final form, either before or after the jury was
81
charged. We specifically considered whether the final instructions were complete, clear,
and thorough in order to give the jury all the information it needed to properly deliberate
and reach a verdict before charging the jury. Upon review of the transcript, there is no
evidence to support the Defendant’s argument that the jury instructions were deficient.
Even if there was any deficiency, Defendant has waived this argument by not objecting to
the instructions at the time of trial.
82
Similarly, this Court did not find any deficiency in the content of the verdict slip.
Even if a deficiency existed, the Defendant has waived any objection to the verdict slip
83
by not raising the issue at trial.
78
N.T. at 5-7.
79
Following a motion by Defendant to dismiss Plaintiff’s unjust enrichment claim and after a discussion
with both counsel on the matter, that claim was dismissed by Order of Court. N.T. Vol. III at 139-40.
Defendant voluntarily withdrew his claim for Unfair Trade Practices. N.T. Vol. IV at 67.
80
See Snyder v. Gravell, 666 A.2d 341, 343 (Pa. Super. 1995).
81
N.T. at 35; N.T. Vol. II at 210; see also Transcript of Proceedings, 2, 53, March 30, 2017 (hereinafter
“N.T. Vol. IV at ___”).
82
Specifically, Defendant’s claim that the verdict slip was deficient in that it did not include a section for
the jurors to vote on whether there had been a material breach of the contract is without merit because this
Court specifically instructed the jury on the elements of breach of contract, including material breach, as
well as defined “material breach” for the jury. See N.T. Vol. IV at 40, 44-45.
83
Defendant’s counsel specifically did not raise an objection to the exclusion of a materiality provision in
the verdict slip when given the opportunity by the Court to do so, and both parties agree that the
materiality question did not need to be included on the verdict slip. N.T. Vol. III at 129, 173.
13
b. Molding the Verdict to Include Statutory Pre-Judgment Interest
The Court’s molding of the jury verdict to include 6% prejudgment interest was
appropriate. “In contract cases, statutory prejudgment interest is awardable as of right.”
Pittsburgh Const. Co. v. Griffith, 834 A.2d 572, 590 (Pa. Super. 2003) (internal citations
omitted). “In claims that arise out of a contractual right, interest has been allowed at the
84
legal rate from the date that payment was wrongfully withheld, where the damages are
liquidated and certain, and the interest is readily ascertainable through computation.” Id.
“\[E\]ven where the terms of a contract do not expressly provide for the payment of
interest, a nonbreaching party has a legal right to recover interest, as damages, on a
definite sum owed under the contract.” Cresci Const. Services, Inc. v. Martin, 64 A.3d
254, 262 (Pa. Super. 2013) (internal citations omitted). “The disputed amount must be
either specified in the contract or ascertained from the terms of the contract such that at
the time of breach, the breaching party can proffer a tender.” Id. at 265.
Here the parties had a contract which provided that certain amounts were to be
paid by Defendant in exchange for performance by Plaintiff over several different time
85
periods for the construction of Defendant’s home. The contract also included reciprocal
provisions that in the event of a breach, liquidated damages in the amount of ten per cent
(10%) of the remaining balance of the contract would be paid by the breaching party to
86
the non-breaching party. These amounts were certain and determined by the parties at
87
the time of contracting, and were clearly expressed by the terms of the contract.
Furthermore, at trial, the parties stipulated that $102,568.96 was the correct amount of
88
damages for purposes of the Plaintiff’s claim, not including statutory interest.
Prejudgment interest is therefore readily ascertainable through computation and is
appropriate in this case.
84
See 41 P.S. §202 (the “legal rate of interest” shall be construed to refer to the rate of interest of 6% per
annum).
85
See Pl.’s Exhibit 2, “Agreement” dated February 3, 2012 (March 28, 2017); see also Pl.’s Exhibit 10,
“Disbursement Schedule” (March 28, 2017).
86
See Pl.’s Exhibit 2, “Agreement” dated February 3, 2012, 2-3 (March 28, 2017).
87
See Pl.’s Exhibit 2, “Agreement” dated February 3, 2012 (March 28, 2017); Pl.’s Exhibit 10,
“Disbursement Schedule” (March 28, 2017); N.T. Vol. II at 168.
88
N.T. Vol. II at 168-73.
14
c. Defendant’s Testimony Regarding Mold in the Basement
The Defendant’s claim that his lay testimony regarding mold was undermined by
the Court is without merit. It is axiomatic that an attorney represents his or her client’s
best interests, and that all duly admitted attorneys in good standing are presumed to be
competent. See Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987). Although clients
have the ultimate authority to determine the objectives of representation, lawyers have
89
latitude to determine the means to achieve those objectives, including trial strategy.
Here, there was a discussion on the record between the Court and both attorneys
90
about the issue of mold. It was agreed that neither party’s expert witness would testify
as to the presence or absence of mold because there had been no formal testing done
91
regarding this fact. There was ultimately no expert testimony regarding mold. After
Plaintiff complained that lay testimony regarding mold would be improper, Defendant’s
counsel specifically offered to instruct his client not to testify further about mold so as to
92
accommodate Plaintiff’s objection.
In this case, Defendant’s attorney stipulated not to discuss the presence or absence
of mold (or what Defendant believed caused the mold) in the Defendant’s basement in
front of the jury, and instructed his client to proceed accordingly. Defendant acquiesced
to this request, and did not press the matter during the trial. There is no indication in the
record that Defendant disagreed with his attorney’s strategy or that the Defendant’s then-
counsel was not acting in the best interests of his client. Indeed, Defendant’s counsel was
adept and presented as a skilled trial lawyer. Furthermore, the jury was able to view all of
the photographs of the alleged damage about which Defendant complained as the
testimony progressed and during deliberations. The jury was free to interpret what caused
the alleged damage to Defendant’s basement based on common sense and regardless of
89
See 42 Pa.C.S.A. Rules of Prof. Conduct, Rule 1.2(a); See also 42 Pa.C.S.A. Rules of Prof. Conduct,
Rule 1.4, cmt. 2 (a lawyer must reasonably consult with the client about the means used to accomplish his
objectives, either before or within a reasonable time after acting on his behalf. In some circumstances,
including at trial, the lawyer may need to act without first consulting the client.)
90
N.T. Vol. III at 6-12.
91
N.T. Vol. III at 7-8.
92
N.T. Vol. III at 12.
15
courtroom semantics. In addition, the Defendant actually did, at one point, say that he
believed there was mold in his basement; this statement was not corrected by either
93
party’s attorney or the Court. The jury therefore heard this testimony and was free to
consider it and give it whatever weight they thought it deserved.
The Defendant’s claim that the Court gave an inappropriate warning to Defendant
regarding a possible discovery violation is likewise without merit. The Court gave no
such warning to Defendant, nor did the Court instruct Defendant not to use the word
“mold” in his testimony. Even if Defendant interpreted the Court’s conversation with the
attorneys as such a warning, it would not have been inappropriate given that both parties’
counsel agreed that such evidence should not be admitted at trial.
Generally, the facts known and opinions to be given by a party’s expert at trial are
discovered before trial begins during the discovery process. If discovery of the expert
witness has been completed, the expert is not permitted to testify beyond the scope of that
discovery or testify in a way that is inconsistent with his or her expert report. See
Pa.R.C.P. No. 4003.5(a) and (c); Chanthavong v. Tran, 682 A.2d 334 (Pa. Super. 1996).
The purpose for such a rule is to provide the adversary with the opportunity to prepare a
meaningful response to the proposed testimony, and prevent unfair surprise at trial.
Daddona v. Thind, 891 A.2d 786, 805 (Pa. Cmwlth. 2006). Here, the Plaintiff objected to
the Defendant’s lay testimony concerning mold because the alleged mold in Defendant’s
basement was not brought to the attention of Plaintiff in time to prepare a sufficient
94
rebuttal by Plaintiff’s expert witness. Even though Defendant was not testifying as an
expert regarding mold, the fact that determining the presence and/or type of mold
requires specific testing by an expert led the Plaintiff to object to lay testimony that
95
would essentially operate as expert testimony for the jury. Because Defendant did not
93
N.T. Vol. II at 199, 204. It should also be noted that the Court in this case was sensitive to whether a
limiting instruction regarding Defendant’s testimony regarding mold would be given, as it may have
called into question his credibility. Ultimately it was decided that a limiting instruction would not be
given with regard to the Defendant’s testimony concerning a “black chalky substance,” a “dark spot,” or
“mold” in his basement so as not to draw undue attention to the testimony. N.T. Vol. III at 31-40.
94
N.T. Vol. III at 6-7.
95
N.T. Vol. III at 9.
16
provide Plaintiff with any such expert report that mold was present and Plaintiff would
have been unable to counter the allegations given there was insufficient time for an
independent examination of the basement by Plaintiff’s own expert, any warning given
by the Court to the Defendant in this case regarding testimony about mold would have
been proper.
d. Plaintiff Misconduct
Defendant’s Statement of Errors complain generally of Plaintiff counsel’s
“misconduct regarding discovery violations” and “false and misleading statements.”
Without further specification from Defendant of the alleged egregious conduct, it is
difficult for this Court to address the same. However, following review of the record,
there is no evidence to suggest that Plaintiff’s attorney engaged in misconduct during the
course of the trial. There were no discovery violations by Plaintiff that resulted in any
prejudice to the Defendant in this case. Upon further review, it is not apparent in the
record that Plaintiff made any deliberately false or misleading statements to the jury or to
the Court. Defendant presents only bald assertions that Plaintiff and/or Plaintiff’s counsel
was guilty of misconduct during the trial, and does not specifically cite to any particular
part of the record or any specific conduct done by either of them to bolster his
accusations.
It is a cornerstone of the practice of law that each attorney must zealously
advocate for his or her own client within the legal and ethical bounds of the law, and that
the attorney will highlight the facts and inferences most favorable to his or her own
96
client. Simply because Plaintiff’s attorney highlighted different facts and inferences
than Defendant over the course of the trial does not make that alternative position an
erroneous or misleading one. With regards to a potential discovery violation, that issue
was dealt with by the parties’ attorneys and the Court on the record and out of the hearing
96
See 42 Pa.C.S.A. Rules of Prof. Conduct, Rule 1.3, cmt. 1 (“A lawyer should pursue a matter on behalf
of a client despite opposition, obstruction or personal inconvenience to the lawyer, and take whatever
lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer must also act
with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s
behalf.”).
17
97
of the jury, and did not affect the course of the proceedings. Defendant’s suggested
eleventh error of malfeasance on the part of Plaintiff is therefore unsubstantiated and
unconvincing.
Similarly, Defendant’s tenth error regarding the nondisclosure of certain witnesses
and documents to the Defendant before trial is without merit. There were no witnesses
presented to the jury of whom Defendant was unaware or to whom Defendant objected
during the trial. Even if Plaintiff made an error by not providing Defendant with copies of
the subpoenas of certain witnesses prior to trial, Defendant knew of the witnesses’
identities and prepared cross-examinations of the witnesses in order to develop their
98
testimony in full. Although the Defendant claims that the Fairview Township Building
st
Permit File and the Members 1 FCU mortgage file were erroneously presented during
testimony, a review of the record reveals this claim to be inaccurate. The record shows
that the parties stipulated both prior to trial and during trial that certain documents in the
st
Members 1 FCU mortgage file containing Defendant’s personal information were
99
impertinent to the litigation and would be excluded. In addition, the updated inspection
st
reports produced by the Members 1 FCU witness were only provided to the Plaintiff at
100
the time of trial, and they were immediately copied to the Defendant for review. As to
97st
The Defendant complained that the Members 1 FCU witness had brought with her to the trial
documents from Defendant’s mortgage file containing personal information about Defendant and his
financial relationship with the bank that the parties had previously agreed would not be included in the
testimony. The parties agreed after discussion with the Court that the contents of those documents would
not be testified to, the Plaintiff would not look at them, they would not be entered into evidence, and the
witness would take them back to the bank with her. The Court did not find that a discovery violation had
occurred, and no objection was raised by Defendant to the testimony of the witness other than that
regarding Defendant’s personal information which was already ruled on by the Court via previous
stipulation of the parties. N.T. Vol. II at 4-8.
98
All witnesses who testified for Plaintiff were included in Plaintiff’s Pretrial Statement and
Supplemental Pretrial Statement prior to trial. See Pl.’s Pre-Trial Memorandum, March 9, 2017; Pl.’s
Supplemental Pre-Trial Memorandum, March 24, 2017.
99
N.T. Vol. II at 4-8; See also Stipulation of Parties to Resolve Def.’s Motion for Protective Order and to
Resolve Pl.’s Motion to Overrule Objections to Subpoena, March 28, 2016; In re: Stipulation of Parties to
Resolve Def.’s Motion for Protective Order and to Resolve Pl.’s Motion to Overrule Objections to
Subpoena, Order of Court, April 7, 2016 (Peck, J.).
100
The Defendant was given the complete file one day before the records would be presented to the jury,
thus giving the Defendant an adequate opportunity to prepare for cross-examination of the witness
regarding those particular documents. N.T. at 7-8.
18
the entrance of the Fairview Township building Permit File, Defendant did not object to
any of its contents nor to the witness’s testimony regarding such at trial, so any claim he
101
may have had regarding the propriety of this exhibit was waived.
The Defendant also complains in his twelfth numbered error that the list of
exhibits provided to the jury referenced a Defendant email as a “Termination Email” and
that such reference was prejudicial to the Defendant because that was not the true title of
the email. Even if labelling the document “Termination Letter” was error, it was harmless
and did not prejudice the Defendant. As mentioned supra, the Court may disregard errors
102
that do not affect the substantial rights of the parties. In the case of an allegedly
mislabeled trial exhibit, this Court finds no precedent for granting the relief the
103
Defendant requests. The general rule thus applies, and Defendant may only succeed on
a showing that he was prejudiced by the allegedly mislabeled document.
The jury is entitled to use common sense, as well as their common-sense
understanding of words and connotations, in interpreting the evidence. There is nothing
in the record to suggest that the jury was confused or misled by the title of the document
on the exhibit list as opposed to the title and content of the document itself, nor is there
anything of record to indicate Defendant was prejudiced by the same. Here, the jury
heard a number of witnesses testify as to the nature, substance, and import of the
particular document. Plaintiff testified that the document was “an email from Mr.
101
N.T. Vol. II at 152-161; It is also noted that the Defendant had the opportunity to cross-examine the
witness regarding the documents in the file, and chose not to do so. N.T. Vol. II at 161.
102
See Pa.R.C.P. No. 126.
103
Independent research by this Court did not yield any reported precedential decisions authorizing a new
trial based upon mislabeled trial exhibits, and Defendant did not provide any legal support for his position
asking for such in his Statement of Errors. In United States v. Banks, the Court refused to grant a
Defendant’s motion for a new trial or mistrial based upon exhibits which were shown to the jury bearing
solely a government exhibit label, when the parties had previously stipulated to the exhibits being labeled
as “joint” exhibits. United States v. Banks, 2006 WL 8424793 (W.D. Pa. 2006). Defendant contended that
such mislabeling prejudiced the jury against him. Id. The Court found that as Defendant did not explain
how he was prejudiced by the incorrect labels and the jury heard evidence pertaining to the documents
themselves, there was no prejudice and a new trial was not granted. Id. Although not binding on this
Court, we find that the facts as stated in Banks are sufficiently analogous to our facts and the reasoning of
that Court is sound. We therefore conclude that here, the reference to the November 9, 2012 letter as
“Termination Letter” was not prejudicial to the Defendant and therefore does not warrant relief under the
circumstances.
19
Harpster terminating \[him\] from the job” and that the email contained the words “you are
104
to be terminated from the project.” Plaintiff further testified that receipt of the
document had the effect of causing him to stop all work on Defendant’s home, seek
105
counsel, and cease communications with the Defendant. Defendant testified that the
document was a notice to the Plaintiff of a breach of contract and that the document
106
further indicated Defendant’s desire to work with Plaintiff. The jury was able to
examine the document itself during their deliberations, and had the opportunity to view it
together with their recollections of the testimony pertaining to it. That the jury ultimately
found the Plaintiff more credible than Defendant and found that Defendant prevented
Plaintiff from completing its work and failed to pay Plaintiff for work completed, does
not rest on an exhibit label.
Defendant’s fourteenth numbered error that Plaintiff used its lay witness, Derick
Trout, as an expert during the trial in order to subvert the expert discovery and disclosure
process for experts is also baseless. The Pennsylvania rules of evidence require that any
witness who is not testifying as an expert must have personal knowledge about the matter
to which he or she is testifying. See Pa.R.E. Rule 602. While expert witnesses may give
their opinion regarding matters beyond their personal knowledge, lay witnesses are
permitted to give their opinions only if the testimony is “rationally based on the witness’s
perception; helpful to clearly understanding the witness’s testimony or to determining a
fact in issue; and not based on scientific, technical, or other specialized knowledge.”
Pa.R.E. Rule 701.
Here, the Plaintiff did not seek to have Mr. Trout qualified as an expert during
trial. Defendant did not lodge any objection seeking a ruling that his testimony be
considered an unqualified expert opinion or lay opinion. Mr. Trout spoke from personal
knowledge and experience as a waterproofing contractor and as the person who
104
N.T. at 94-95.
105
N.T. at 118-22, 133.
106
N.T. Vol. II at 192.
20
107
specifically did the waterproofing on the Defendant’s home. Although the witness did
have specialized knowledge by virtue of his experience, some of which he shared with
the jury in order to explain his own workmanship and observations of the Defendants
home, it does not appear from the transcript that he answered any hypothetical questions
regarding the state of Defendant’s home or based his opinions on facts that were not
108
within his personal knowledge. Furthermore, the jury was given instructions regarding
109
expert testimony and lay testimony and how to weigh the credibility of each. The jury
also was instructed that they could choose either to believe or disregard opinion evidence
110
given by lay witnesses. The jury was free to disregard any of Mr. Trout’s testimony
that it believed was not credible, and was free to give his testimony whatever weight they
believed it deserved. Considering the above, there were no prerequisite expert testimony
procedures for the Plaintiff to follow in order to present that witness’s testimony to the
jury.
e. Plaintiff’s Rebuttal Expert’s Testimony / Frye Standard
This Court followed all necessary steps to ensure that the jury only heard
admissible and relevant testimony from the Plaintiff’s expert. Pennsylvania law requires
that expert evidence must meet the Frye standard, which states that “\[a\]dmissibility of the
evidence depends upon the general acceptance of its validity by those scientists active in
the field to which the evidence belongs.” Commonwealth v. Topa, 369 A.2d 1277, 1281
(Pa. 1977) (emphasis in original). The Frye test is satisfied when the “methodology that
underlies the evidence has general acceptance in the relevant scientific community.”
Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1043-44 (Pa. 2003). The Court does not decide
whether propositions or theories offered by the expert are true or false, but rather acts as
gatekeeper to decide whether the science being offered by the expert is “sufficiently
reliable, solid, trustworthy,” and “good enough to serve as the basis for the jury's findings
of fact” or if it is “dressed up to look good enough, but basically so untrustworthy that no
107
N.T. Vol. III at 77-91.
108
Id.
109
N.T. Vol. IV at 31-33, 35-37.
110
N.T. Vol. IV at 37.
21
finding of fact can properly be based on it.” Blum by Blum v. Merrell Dow
Pharmaceuticals, Inc., 705 A.2d 1314, 1322 (Pa. Super. 1997). Challenges to a Court’s
rulings on admissibility under Frye are subject to an abuse-of-discretion standard. Grady,
839 A.2d at 1046.
Importantly, we note that the Defendant did not follow necessary procedures
which would have preserved his claim based on Frye for appeal. Complaints of error may
not be raised for the first time on appeal; they must be raised first in the trial court where
the judge can correct the errors as they are made. See Pa.R.A.P. 302(a); Commonwealth
v. Clair, 326 A.2d 272, 274 (1974). “One must object to errors, improprieties or
irregularities at the earliest possible stage of the criminal or civil adjudicatory process to
afford the jurist hearing the case the first occasion to remedy the wrong and possibly
avoid an unnecessary appeal to complain of the matter.” Commonwealth v. Strunk, 953
A.2d 577, 580 (Pa. Super. 2008) (quoting Commonwealth v. English, 667 A.2d 1123,
1126 (Pa. Super. 1995). When a Defendant raises an evidentiary challenge to the
admissibility of expert testimony based on standards of scientific reliability under Frye,
he must seek to preclude the evidence prior to appeal or waiver will result. See
Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa. Super. 2006) (finding waiver where
appellant failed to file a motion in limine and did not request a Frye hearing). If a Frye
hearing has not been requested, objection to the underlying methodology used by the
111
expert witness is waived.
Here Defendant did not make any motion either to request a Frye hearing or to
exclude the expert’s evidence on the basis of inadequacy under Frye before or during the
proceedings. In addition, Defendant did not raise any objection to the admissibility of the
Plaintiff’s expert’s methodologies at trial, but rather cross-examined the expert on the
112
basis of his testimony. Regardless of Defendant’s lack of objection at the time of trial
to the testimony, Defendant had adequate opportunity to, and in fact did, call into
111
Commonwealth v. Walker, 2017 WL 2992978 (Pa. Super. 2017); See also Commonwealth v. Latham, 2014 WL
10979805, at *2-3 (Pa. Super. 2014).
112
Id.
22
113
question the expert’s methods and tools of measurement on cross examination. On the
other hand, Plaintiff followed all procedures necessary for his expert to give testimony,
including the necessary discovery procedures, providing the expert’s report to Defendant
prior to trial, and certification of the expert through testimony regarding his qualifications
114
at trial.
115
Lastly, the jury was given instructions on how to evaluate an expert’s testimony.
The jury was free to believe all or part of either party’s expert witness, and was free to
reconcile each expert’s testimony so as to give one expert more weight and/or credibility
than the other. The Plaintiff’s Expert’s testimony was therefore properly received at trial.
f. Plaintiff’s Witness’s Testimony without Reading Glasses
According to the Pennsylvania Rules of Evidence, evidence is admissible when it
is competent and relevant. See Pa.R.E. Rule 402; Conroy v. Rosenwald, 940 A.2d 409
(Pa. Super 2007). Evidence is relevant if it tends to prove or disprove a material fact. Id.
The Court is the gatekeeper that decides which evidence is relevant and thus admissible,
and which is not relevant and thus is inadmissible and should not be considered by the
jury. In contrast, issues of credibility of a witness are always for the finder of fact – in
this case, the jury – to decide. “Credibility determinations are within the sole province of
the jury.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998). “A jury is entitled to believe
all, part, or none of the evidence presented \[and\] can believe any part of a witness’
testimony that they choose, and may disregard any portion of the testimony that they
disbelieve.” Randt v. Abex Corp., 671 A.2d 228 (Pa. Super. 1996). Whether a witness is
able to identify and testify about a document allegedly prepared by him bears on that
witness’s credibility and on what weight the jury should give that evidence, not
necessarily the relevancy of the evidence.
Defendant complains that Plaintiff’s witness Steven Gertz’s testimony should not
have been admitted, apparently on the basis that Mr. Gertz could not see several
113
N.T. Vol. III at 151-52, 155, 162.
114
N.T. Vol. III at 141-43.
115
N.T. Vol. IV at 35-37.
23
documents at trial without his reading glasses. Mr. Gertz was the real estate appraiser for
116
Defendant’s lending bank and made five inspections of the subject property. He
offered testimony regarding his role as the inspector of the property, and testified to the
117
content of inspection reports regarding the property that he had prepared at the time.
While Defendant argues the lack of glasses should therefore preclude Mr. Gertz’s
testimony in total, it appears what Defendant is actually taking issue with is the witness’s
credibility. Here, the jury was instructed regarding the general credibility of witnesses,
including factors to consider in determining credibility, in the opening jury
118
instructions. During questioning, the witness indicated that the documents to which he
was testifying were difficult to read because he did not have his reading glasses with
119
him. However, the witness also indicated that this fact would not hinder his ability to
120
read and testify to the contents of the documents. The Defendant had the opportunity to
cross-examine the witness on his ability to see and testify to the documents in front of
him immediately after he testified, and chose not to do so.
At the close of the trial, the jury was given a standard jury instruction regarding
121
credibility, which expanded upon the initial instruction. The jury was told that a
witness’s ability to see and remember the things that he or she was testifying about
122
should be factors in determining whether or not they believe the testimony.
Furthermore, the jury also received the documents themselves to view in their
deliberations, and had the chance to compare the witness’s testimony about the
documents to the actual documents and take any discrepancies between the two into
123
account when evaluating the witness’s credibility. The jury was free to give the
witness’s testimony whatever credibility and weight that they believed it deserved. Mr.
Gertz’s testimony was properly admitted.
116
N.T. Vol. II at 54.
117
N.T. Vol. II at 55-71.
118
N.T. at 23, 25-27.
119
N.T. Vol. II at 56.
120
Id.
121
See Pa. SSJI (Civ), § 4.20 (2013); N.T. Vol. IV at 31-33.
122
N.T. Vol. IV at 32.
123
N.T. Vol. IV at 59, 61.
24
g. The Court’s in camera Communication with a Juror
A review of the transcript gives no credence to Defendant’s allegation of error that
any part of this Court’s in camera interview with a juror was inappropriate. “\[O\]nly
those ex parte communications between a court and jury which are likely to prejudice a
party” will require a new trial. Commonwealth v. Bradley, 459 A.2d 733, 734 (Pa. 1983).
“The reason for prohibiting a trial judge from communicating with a jury ex parte is to
prevent the court from unduly influencing the jury and to afford counsel an opportunity to
become aware and to seek to correct any error which might occur. Where there is no
showing either that the court's action may have influenced the jury or that its directions
were erroneous, then the reason for the rule dissolves.” Id. at 739.
During the trial, one of the jurors indicated through the Court’s bailiff to the Court
that he was having some trouble understanding what was going on and expressed that he
124
wanted to be able to ask questions. After this Court consulted with the parties’
attorneys, Plaintiff’s attorney requested that the Court do an in camera interview of the
juror to ensure that he was able to understand English and perform his duties
125
adequately. Both parties agreed that the Court would interview the juror on the record
126
to establish the nature of his questions and to determine whether he was fit to serve.
During the in camera interview the Court re-instructed the juror to listen to the testimony
and reminded him that he would be deciding the facts and applying the facts to the law
127
given by the judge, and that he could not ask questions during the trial. Although the
juror indicated he disagreed with the way “the system” was set up, he maintained that he
could be fair and impartial, and that he would be objective and discharge his duties as a
128
juror faithfully despite his personal feelings. He also confirmed that he could
understand English and that he understood “ninety-nine percent” of what was going on in
124
N.T. Vol. II at 131.
125
N.T. Vol. II at 132.
126
N.T. Vol. II at 133-35.
127
N.T. Vol. II at 139-40.
128
N.T. Vol. II at 136-42.
25
129
the trial. The Court relayed the substance of its conversation with the juror to the
parties’ attorneys, and thereafter neither party asked to see the transcript of the
130
conversation nor objected to the service of the juror.
h. Sleeping Juror
As stated supra, issues that are not raised at the time of trial are waived on appeal.
In the case of sleeping jurors, the complaining party must demonstrate that he suffered
actual prejudice caused by the sleeping juror. Commonwealth v. Lawson, 762 A.2d 753
(Pa. Super 2000), appeal denied, 781 A.2d 141 (Pa. 2001). “The mere appearance of a
juror or fact finder dozing may not be taken as a clear indication that an individual is
asleep, and is missing relevant testimony. Moreover, even if a juror nods off, it must be
demonstrated that he actually missed portions of the testimony, and the complaining
party must demonstrate that he suffered actual prejudice.” In re DeFacto Condemnation
and taking of lands of WBF Associates, L.P., 972 A.2d 576, 589 (Pa. Cmwlth. 2009)
(internal quotations and citations omitted). Claims involving a sleeping juror are waived
if the complaining party does not take affirmative steps to both bring the issue to the trial
judge’s attention and request a specific remedy from the Court at the time the claim
arises. Commonwealth v. Strunk, 953 A.2d at 577, 581 (Pa. Super. 2008).
Here, this Court provided the jurors with specific instructions to pay close
131
attention to the parties and the evidence. We also specifically warned the jury that
132
sleeping during the testimony would not be tolerated. This Court does not recall any
juror being asleep during this particular trial; furthermore, there is no reflection in the
transcript that we reprimanded any juror for sleeping during the trial. There is also no
indication in the transcript that either party raised an objection regarding a sleeping juror
at any time during the proceedings. Even if there was a sleeping juror present during this
trial, Defendant did not raise the issue with the Court at the time of the juror’s alleged
conduct, and Defendant has further failed to specify which parts of the testimony was
129
N.T. Vol. II at 136, 138.
130
N.T. Vol. II at 142.
131
See N.T. at 21-22, 32-33.
132
N.T. at 21-22.
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missed by the juror(s) and has failed to establish that he has suffered any prejudice as a
result. Because Defendant has not met his burden to show that he was prejudiced in the
result even if his allegations of a sleeping juror were true, Defendant’s seventeenth claim
for error is waived and should be dismissed.
CONCLUSION
Based on the foregoing discussion, we respectfully request that our Orders dated
March 30, 2017, August 21, 2017, and August 29, 2017 be affirmed in all respects.
BY THE COURT,
___________________________
Christylee L. Peck, J.
Veronica Boyer, Esq.
Mette, Evans & Woodside
3401 North Front Street
Harrisburg, PA 17110-0950
Attorney for Plaintiff
Robert J. Harpster
758 Maple Shade Drive.
Lewisberry, PA 17339
Defendant, Pro se
27