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HomeMy WebLinkAbout97-5476 civilKEVIN HUMBERT t/a · IN THE COURT OF COMMON PLEAS OF HUMBERT'S LANDSCAPING · CUMBERLAND COUNTY, PENNSYLVANIA AND EXCAVATING, ' Plaintiff · : · V. ' · · LINDEN R. GATES, JR., · NO. 97-5476 CIVIL TERM Et al., ' Defendant ' · OPINION PURSUANT TO APPELLATE RULE 1925 This action was commenced by complaint filed on October 27, 1997. Plaintiff alleged that Defendants owe him money for excavation services he had performed on their behalf. Plaintiff sought recovery under the alternate legal theories of breach of contract or quantum meruit. A non-jury trial was held before this Court on February 24, 1999. On March 1, 1999 we entered a verdict in favor of Plaintiff and against Defendants in the amount of $13,913.25. On March 11, 1999, Defendants filed Post-Trial Motions which we denied on April 1, 1999. On April 23, 1999 Judgment was entered on the verdict. Defendants filed a Notice of Appeal on April 30, 1999. On June 15, 1999 we directed the Defendants to file a 97-5476 CIVIL concise statement of matters complained of on appeal pursuant to Pa. Rule of Appellate Procedure 1925(b).~ According to their concise statement, Defendants intend to raise the following three issues on appeal- 1) This Court erred in failing to issue specific findings of fact and conclusions of law with appropriate discussion to identify whether the basis for our award of damages was breach of contract or quantum meruit. 2) The evidence was insufficient to sustain the verdict. 3) The verdi ct was excessive. FACTUAl, BACKGROUND On June 2, 1997 the parties agreed in writing that Plaintiff would "load and haul out the dirt and rock piles behind the new homes in Gates Manor..." for $5000.2 The written contract was for a fixed price and was limited to the removal of rock and soil that had previously been excavated. It specifically excluded the performance of any 3 additional excavation. ~ Although the Defendants filed a Notice of Appeal on April 30, 1999, we were not served with a copy as required by Pa. Rule of Appellate Procedure 906(a)(2) until June 10, 1999. 2 Plaintiff's Exhibit 1. 3 Plaintiff's Exhibit 1. Notes of Testimony p.21, 46. 97-5476 CIVIL Shortly before the work was completed on the written contract, Plaintiff was advised by Defendant Linden Gates that he would have to remove additional soil and rock to "~et below the manhole.4 Plaintiff advised him that "going down to the manhole" is not part of the contract,s Defendant responded that it had to be done and done quickly because of pending litigation.6 Plaintiff agreed to do the additional work on a time and material basis.7 He advised Defendant Linden Gates of the hourly rates to be charged.8 He further advised Gates that if it was a rush job he could hire additional trucks from Leon Wintermeyer to assist.9 Defendant Gates authorized the use of the Wintermeyer trucks at $45 per hour. The Defendant partners were well aware that the additional excavation work was being done on a time and material basis. A few days after the fixed price work was over and the time and material phase had begun, Defendant Lois Gates asked Plaintiff how much additional charges had Notes of testimony p.50. Notes of testimony p.50. Notes of testimony p.50-51. Notes of testimony p.50-51, 60. Notes of testimony p.51. Notes of testimony p.50. Notes of testimony p.63-64. 97-5476 CIVIL been incurred and how much more would be incurred.~ On another occasion, she urged one of Plaintiff's employees to begin working since she did not want to pay him to just stand around.~2 Furthermore, once the time and material phase began, the Defendants spent more time on the premises watching the work being done.~ One of the Defendants, Lowell Gates, even helped on the job from time to time. 14 Pursuant to the oral agreement with Defendants, Plaintiff and his employees worked an additional two weeks of 14 to 16 hour days to complete the excavation work.~s The fair and reasonable value of services rendered to Defendants pursuant to the oral agreement amounted to $13,913.25. This amount included $8,749.50 for the time and material expended by Plaintiff as well as $5163.75 for charges incurred in connection with the Wintermeyer trucks.~6 Payment for said services was due on August 28, 1997.~7 Defendants have refused to pay any amount whatsoever in connection with the additional work.~8 Notes of testimony p.61. Notes of testimony p.101. Notes of testimony p.97-98. Notes of testimony p.98. Notes of testimony p.58. Plaintiff's Exhibit #2, Notes of testimony 64-66. Plaintiff's Exhibit #2. Notes of testimony p.65. 97-5476 CIVIL DISCUSSION Defendants first argue that we erred in failing to issue specific findings of fact and conclusions of law in order to explain the basis of our verdict. This position is directly contra to Pa. Rule of Civil Procedure 1038 (b) which provides- The decision of the trial judge may consist only of general findings as to all parties but shall dispose of all claims for relief. The trial judge may, if he wishes, include as part of the decision specific findings of fact and conclusions of law with appropriate discussion. (emphasis added) We exercised our discretion as allowed by Rule 1038(b.) and issued a general finding in favor of Plaintiffs and against Defendants in the amount of $13,913.25 plus interest at the judgment rate from August 28, 1997. This effectively disposed of all claims for relief.~9 The Defendant next argues that the evidence presented · at trial was insufficient to sustain the verdict. ~ Defendants argue that Plaintiff has made separate claims for breach of contract and for unjust enrichment. We disagree. Plaintiff has made only one claim for relief, i.e. to be paid for the excavation work he did. Breach of cont.ract and unjust enrichment are the alternative legal theories upon which the single claim is based. 97-5476 CIVIL It has long been the law of this Commonwealth that the findings of a trial court in a non-jury case must be given the same weight and effect on appeal as a jury verdict. Estate of Shelly, 484 Pa. 322, 399 A.2d 98 (1979). Likewise, "a general decision rendered by a trial judge sitting without a jury, should be reviewed by the same standards and accorded the same deference as a general Merion Spring Company v. verdict, rendered by a jury." _ Torres_, 462 A.2d 686, 692, 315 Pa. Super. 469 (1983). In determining whether sufficient evidence exists to sustain a verdict, the evidence must be viewed in the light most favorable to the verdict winner, "giving that party the benefit of every fact and 'inference that might reasonably be deduced from the evidence and resolving all conflicts in their favor." _Thomas v. E.B. Jermyn Lodge No. 2, 693 A.2d 974, 977, (Pa. Super. 1997) . In Johnston Florist v. TEDC0 Const., 657 A.2d 511, 441 Pa. Super. 281 (1995) the Superior Court stated- Before a contract can be found, all of the essential elements of the contract must exist. Therefore, in determining whether an agreement is enforceable, we must examine whether both parties have manifested an intent to be bound by the terms of the agreement, whether the terms are sufficiently definite, and whether consideration existed. If all three of these elements exist, the 97-5476 CIVIL agreement shall be considered valid and binding. Furthermore, in the case of a disputed oral contract, what was said and done by the parties, as well as what was intended by what was said and done by the parties, are questions of fact to be resolved by the trier of fact, in this instance the trial court (citations omitted). 657 A.2d 511. In the instant case Plaintiff offered to do the excavation work for time plus materials. Because of the nature of the work, he made it clear that he could not estimate the total cost.2° However, he fully disclosed his hourly rates as well as the hourly rates for the Wintermeyer trucks.2~ Defendant Gates accepted that offer by instructing him to proceed to finish the work as quickly as possible, which he did.~ Therefore, all the elements of a contract set forth above are present in this case. Defendants dispute that any such additional agreement existed between them and Plaintiff. They denied that any conversations took place regarding additional work, the rental of the Wintermeyer trucks, or the need for the expeditious performance of the job. We had the opportunity to hear and see all of the witnesses testify at trial. We 20 Notes of testimony p.60-61. 2~ Notes of testimony p.51. 22 Notes of testimony p.64. 97-5476 CIVIL found the testimony of Plaintiff and his wife to be believable and chose to resolve the conflicting testimony in 23 their favor. Defendants' final argument is that the verdict was excessive. The Plaintiff submitted detailed invoices for the work done and equipment used.TM He testified that he did the work and that the charges were reasonable.~-s We believed him. Therefore, we entered a verdict for the value of the actual work done and equipment used plus interest at 6% per annum from August 28, 1998, which is the payment due date. 26 For the reasons set forth in this opinion, we ar~::''':~ ~ ........ : satisfied that our verdict was appropriate. JULY ~ ~ , 1999 Edward E. Guido, J. 23 As the fact finder we are responsible to determine the credibility of the witnesses. McMahon v, McMahon, 706 A.2d 350 (Pa. Super. 1998). We _ are free to accept or reject the testimony of any witness and to believe all, part, or none of the testimony. Gaydos v. Gaydos, 693 A.2d 1368 (Pa. Super 1997). 24 Plaintiff's Exhibit 2. 2s Notes of testimony p.66. 26 In a contract case, Plaintiff is entitled to prejudgment interest at the statutory rate from the time the debt became due or payable. Robert Wooler v. Fidelity Bank, 479 A.2d 1027, 330 Pa. Super. 523 (1984). The statutory rate of interest is 6%. 41 P.S. § 201. 97-5476 CIVIL Douglas R. Bare, Esquire For the Plaintiff Mark For E , the Halbruner, Defendant Esquire -sld