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HomeMy WebLinkAbout97-0792 civil appeal3.A54023.00 CHARLES E. CAIN, II AND CHRISTINA L. CAIN, Appellee PENN VALLEY CORPORATION, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant : No. 1601 MDA 1999 Appeal from the Judgement Entered September 2, 1999 In the Court of Common Pleas of CUMBERLAND County CIVIL at No. 97-792 BEFORE: CAVANAUGH, STEVENS and HESTER, ]]. MEMORANDUM: I~....~l I. I::l FEB I 8 2001 Penn Valley Corporation appeals from the September 2, 1999 entry of judgment in favor of Charles and Christina Cain in the amount of twenty-one thousand three hundred twenty-five dollars ($21,325.00).~ We affirm. This dispute arises out of the Cains' purchase of a home constructed by Penn Valley. The Cains entered into an Agreement of Sale with Penn Valley on November 22, 1995. The following addendum to the Agreement was added after the parties conducted a pre-settlement walk-through of the premises on February 15, 1996: The undersigned Purchaser and Seller hereby agree to the following: If the concrete cracks become more severe or upheaved - (as per Gene Sowers) concrete will be repaired. ~ Penn Valley's appellate brief mistakenly indicates that it appeals from the August 3, 1999 denial of post-trial motions. J.AS4023.00 Top soil will be provided in Spring for any Iow areas in lawn where waters lays so much basement walls are wet (as per Ben Clemente). As per Gene Sowers - after move in painter will re-paint walls that are touched up and paint does not blend. Holes in siding are to be covered. Addendum to Agreement of Sale. Settlement occurred on February 15, 1996, and the Cains moved into the home. On March 9, 1997, they filed a complaint against Penn Valley, alleging, drainage, and water infiltration problems. among other things, structural, A bench trial was conducted on April 23, 1999, after which the trial court found in favor of Penn Valley on one count, and in favor of the Cains on the other. Specifically, the trial court awarded the following damages to the Cains for Penn Valley's breach of a warranty of performance in a good and workmanlike manner: (a) remedy water drainage problem with related costs - $15,000.00 (b) repair defective painting - $165.00 (c) replace defective driveway - $2,460 (d) repair defective outside porch - $450.00 (e) replace defective garage slab - $3000.00 (f) repair cracks in basement slab - $250.00 Trial court General Findings and Verdict filed 4/23/99 at 1-2. The Cains filed post-trial motions and a petition for delay damages, which were denied by the trial court. Penn Valley also filed post-trial motions, requesting that the trial court modify the verdict or grant a new trial. These too were denied. Judgement was entered on September 2, 1999, and Penn Valley filed this timely appeal, raising the following question for our review: -2- J .A54023.00 Can a bench decision stand when the Trial Court awarded damages in excess of these [sic] expressly provided for in an Agreement of Sale, awarded damages for breach of warranty without any competent evidence thereof, and awarded excessive damage for beyond what was necessary to remedy the alleged defects? Appellant's brief at 4 (emphasis in original). Penn Valley specifically claims that the trial court erred in awarding damages with regard to (1) the garage floor, (2) the driveway, and (3) the water problem. We address these claims under the following standard: Our review of a trial court's non-jury decision is limited to a determination of whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in the application of law. Findings of the trial judge in a non-jury case must be given the same weight and effect on appeal as a verdict of a jury and will not be disturbed on appeal absent error of law or abuse of discretion. When this Court reviews the findings of the trial judge, the evidence is viewed in the light most favorable to the victorious party below and all evidence and proper inferences favorable to that party must be taken as true and all unfavorable inferences rejected. Behar v. Frazier, 724 A.2d 943, 946 (Pa.Super. 1999) (citation omitted). We address the concrete garage slab issue first. Penn Valley asserts that the Cains should not have been awarded three thousand dollars ($3,000.00) to replace the concrete garage slab, because there was no evidence that the cracks became more severe, and even if they did become more severe, the Addendum to the Agreement specified that the remedy was repair, not replacement. Additionally, Penn Valley insists that the Cains failed to mitigate their damages. J.A54023.00 In disregarding these claims, the trial court concluded that credible evidence showed that the initial installation of the slab was defective, and that only replacement, not repair could remedy the problem. Trial Court Opinion filed 8/4/99 at 4. Further, the trial court specifically found to be without credibility Penn Valley's assertion that repair would have been possible had the Cains allowed it at an earlier time. Zd. at 4-5. Our review of the record supports the trial court's conclusion, and refutes Penn Valley's assertions. George Vasquez, a general contractor whose business included concrete work, testified that he visited the Cain home on three occasions, and that by the third visit he observed that the cracks in the concrete garage slab had increased in number and severity. N.T. 4/22/99 at 250-254. Additionally, William Miller, a structural engineer, testified that after observation of the damage to the garage slab, he recommended that the slab be replaced. Zd. at 350. Further, with regard to Penn Valley's assertion that the remedy for the garage slab damage was repair, not replacement, we again note that the trial court specifically found that repair was not an option. Trial Court Opinion filed 8/4/99 at 4-5. Finally, we will not disturb the trial court's conclusion that Penn Valley's evidence regarding mitigation lacked credibility. Matakitis v. Woodmansee, 667 A.2d 228, 233 (Pa.Super. 1995) ("The trial court is free to believe all, part, or none of the evidence that is presented."). -4- 3.A54023.00 Because we find no error of law or abuse of discretion in the trial court's conclusion that the Cains are entitled to the replacement of the garage slab, we affirm the order of September 2, 1999 as it relates to same. Turning to the allegations that the driveway must be replaced, Penn Valley asserts that the Cains did not meet their burden of proving liability, and that the problem with the driveway occurred because the Cains parked a tow truck on it. ~[n awarding two thousand four hundred sixty dollars ($2,460.00) to the Cains for replacement of the driveway, the trial court concluded as follows: Plaintiffs did, on occasion, park a tow truck, with a car on top, on the driveway. We accepted the testimony of plaintiffs that depressions in the driveway started to occur a few months after they purchased the home in February, 1996, and that some of the depressions were in areas other than where the tires of vehicles parked in the driveway would come to rest. The credible evidence was that the only proper way to remove these depressions was to replace the driveway. We concluded that the driveway was not constructed in a good and workmanlike manner and the defendant is not entitled, as it claims, to avoid liability for such poor workmanship based on a clause in the sales agreement that discharges it "If]rom all liability for any damage or destruction to the demise premises caused by ground shifting and resettlement ..." Trial Court Opinion filed 8/4/99 at 5. Again, we find that the trial court's conclusions' are supported by the record. Charles Cain testified that the depressions in the driveway appeared before the tow truck was parked in the driveway, and where not limited to the locations where vehicle tires came to rest. N.T. 4/22/99 at 376, 378. Additionally, the Cains presented testimony that replacement of the m J.A54023.00 driveway was the appropriate way to address the problem. /'d. at 243, 247- 248. As previously noted, it is within the discretion of the trial court to credit such testimony, and we will not engage in a "re-weighing" of the evidence in order to substitute or judgment for that of the trial court. We find no error of law or abuse of discretion in the trial court's finding that the driveway problem was caused by its construction, not the Cains' use of it. As such we will not disturb the court's conclusion that the Cains are entitled to the replacement of the driveway. Lastly, Penn Valley asserts that the swale in the Cains' backyard performed as it should have, and that it was error to award damages in excess of what the Cains proved. l~n addressing the issue of the water drainage problem, the trial court considered, and found credible, evidence that Penn Valley constructed the Cains' home in a natural drainage area onto which rainwater flows from nearby properties. Trial Court opinion filed 8/4/99 at 2. The subdivision plan depicted a drainage system to disperse the water draining onto the Cains' property, but the drainage system was never actually constructed. Id. Additionally, the swale constructed in the rear of the Cains' property was not constructed as originally planned, and the property was ineptly graded, resulting in an increased drainage problem. Id. The trial court concluded this evidence was sufficient to show that the drainage problem was the result of Penn Valley's substandard work. -6- J.A54023.00 In determining the damages to award as the result of the substandard work, the trial court explained that it considered evidence that the property must be regraded and a system must be constructed to remove the water that flows onto, and is retained on, the property. Id. at 3. The trial court accepted evidence that the system will require the construction of a proper swale and piping, an inlet in the street, and some fill and regrading of the property, which will require the removal and replacement of a fence. The Cains presented evidence that this work, with engineering, would cost twenty-five thousand dollars ($25,000.00). Id. The trial court reduced this figure to fifteen thousand dollars ($15,000.00) because the estimate included the costs of work to be done on adjacent properties not owned by the Cains. Id. ]in assessing the damages, the trial court noted that it was free to believe all, some or none of the evidence presented to it, and that the Cains had only to prove damages by a fair preponderance of the evidence, with such information as to enable estimation without speculation, not to a mathematical certainty. .i'd. at 3-4 (citing Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836 (Pa.Super. 1999); Bolus V. United Penn Bank, 363 Pa. Super. 247 (1987)). The trial court discounted Penn Valley's argument that a limited warranty in the Agreement prevents the Cains from recovering damages for the water drainage problem because they constructed a patio off the back of the home and put down the top soil provided by Penn Valley pursuant to the -7- J.A54023.00 Addendum to the Agreement. Trial Court Opinion filed 8/4/99 at 4. Tn doing so, the trial court credited evidence that the patio actually prevented water from entering the home, and that neither the patio nor the topsoil was the material cause of the water drainage problem. Our review of the record supports the trial court's conclusions. Pursuant to our standard of review, we have determined that the findings of the trial court are supported by competent evidence and that the trial court has not committed error in the application of law. Finding no error of law or abuse of discretion, we will not disturb the September 2, 1999 entry of judgment. Behar, supra. Entry of judgment affirmed. Date:. -8-