J-A04042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 LARRY GLENN, D/B/A LARRY GLENN        :   IN THE SUPERIOR COURT OF
 CONSTRUCTION                          :        PENNSYLVANIA
                                       :
                   Appellant           :
                                       :
                                       :
              v.                       :
                                       :
                                       :   No. 578 MDA 2017
 ANDREA H. SMITH                       :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 BRIDGET GLENN D/B/A LARRY             :
 GLENN CONSTRUCTION                    :

            Appeal from the Judgment Entered March 17, 2017
  In the Court of Common Pleas of Clinton County Civil Division at No(s):
                                126-14

 LARRY GLENN, D/B/A LARRY GLENN        :   IN THE SUPERIOR COURT OF
 CONSTRUCTION                          :        PENNSYLVANIA
                                       :
                                       :
              v.                       :
                                       :
                                       :
 ANDREA H. SMITH                       :
                                       :   No. 659 MDA 2017
                   Appellant           :
                                       :
                                       :
                                       :
                                       :
              v.                       :
                                       :
                                       :
 BRIDGET GLENN D/B/A LARRY             :
 GLENN CONSTRUCTION                    :
J-A04042-18



             Appeal from the Judgment Entered March 17, 2017
   In the Court of Common Pleas of Clinton County Civil Division at No(s):
                                 126-14


BEFORE:    STABILE, J., NICHOLS, J., and RANSOM*, J.

MEMORANDUM BY RANSOM, J.:                             FILED JUNE 25, 2018

      Larry Glenn d/b/a Larry Glenn Construction (“Contractor”) and

Andrea H. Smith (“Homeowner”) both appeal from the judgment entered on

March 17, 2017. We affirm Contractor’s liability to Homeowner, that Bridget

Glenn (“Bridget”) has no liability to Homeowner, and that Homeowner has no

liability to Contractor, but we vacate the judgment and remand for a new

hearing limited to the issue of damages.

      In early 2012, Homeowner approached Contractor about building a

home. In April 2012, Contractor and Homeowner signed a document entitled

“Contractor Agreement – LARRY GLENN CONSTRUCTION” (“Contract”).

According to the terms of the Contract, Contractor would charge Homeowner

for “time, materials and 10% profit.”

      Contractor started construction in June 2012 and completed it in

October 2012. Contractor provided invoices to Homeowner throughout the

construction, each one noting the hours of labor as follows: June – 556 hours;

July - 1,065.5 hours; August – 660.5 hours; September – 673 hours; and

October – 242 hours. Pl.’s Ex. 3 (collectively).

      Contractor also performed landscaping pursuant to a subsequent oral

____________________________________
* Retired Senior Judge assigned to the Superior Court.


                                     -2-
J-A04042-18



agreement.    Prior to the completion of the home, Homeowner requested

additions of a finished basement and an outside deck. These embellishments

were not included in the Contract.

      Upon moving into the home in November 2012, Homeowner discovered

that the roof leaked. Trial Court Opinion (TCO), 10/5/16, at 2, 5. Upon further

investigation, she learned that the gutters also leaked at the seams, were not

pitched properly, and did not drain and that the trim at the garage doors was

water-damaged and loose.      After uncovering these problems, Homeowner

refused to pay the balance under the Contract.

      In February 2014, Contractor filed a complaint against Homeowner for

breach of contract and unjust enrichment, in order to collect the unpaid

balance. In March 2014, Homeowner filed an answer and counterclaim for

breach of contract, unjust enrichment, and violations of the Unfair Trade

Practices and Consumer Protection Law (“UTPCPL”).           For her breach of

contract claim, Homeowner alleged that Contractor’s performance was not “in

a good and workmanlike manner” and was not in compliance with the

Contract. Answer with New Matter & Countercl., 3/3/14, at ¶¶ 64, 84. For

the UPTCPL claim, Homeowner contended that Contractor engaged in unfair

or deceptive acts or practices by “represent[ing] that services are of a

particular standard, quality or grade [when] they [were] of another” and

engaging in other “fraudulent or deceptive conduct and thereby creating the

likelihood of confusion or misunderstanding,” specifically by “greatly inflating

the costs under the [C]ontract.” Id. at ¶¶ 95-96, 105 (citing 73 P.S. § 201-

                                     -3-
J-A04042-18



2(4)(vii), (xxi)).      Homeowner simultaneously filed a complaint to join

additional defendant, Bridget, raising the same three counts.

       In March 2014, Contractor filed preliminary objections to Homeowner’s

counterclaim.      In his preliminary objections, Contractor contended that

Homeowner’s counterclaim under the UTPCPL was precluded by the “gist of

the action” doctrine.1      The trial court agreed with Contractor, stating that

“[t]he UTPCPL is clearly a social policy determination by the legislature

imposing sanctions for fraud or, since recent amendments [in 1996],

‘deceptive’ conduct.” Order, 5/16/14, at 3. In May 2014, the trial court thus

sustained the Contractor’s preliminary objection and dismissed “all references

in [Homeowner]’s pleading to the UTPCPL[.]”          Id. at 5.   In June 2014,

Homeowner filed an amended new matter and counterclaim, in which she

stated: “Upon information and belief, [Contractor] greatly inflated the costs

under the [Contract] by misrepresenting the rate being paid to employees and

by charging a 10% profit on this inflated rate and on materials purchased by


____________________________________________


1      The gist of the action doctrine bars a plaintiff from re-casting
       ordinary breach of contract claims into tort claims. . . .

       Although they derive from a common origin, distinct differences
       between civil actions for tort and contract breach have developed
       at common law. Tort actions lie for breaches of duties imposed
       by law as a matter of social policy, while contract actions lie only
       for breaches of duties imposed by mutual consensus agreements
       between particular individuals.

Knight v. Springfield Hyundai, 81 A.3d 940, 950 (Pa. Super. 2013)
(internal citations and quotation marks omitted) (some formatting).


                                           -4-
J-A04042-18



[Homeowner] for her own home.” Am. New Matter & Countercl., 6/3/14, at

¶ 61.

        In July and November 2014, some repairs were completed on the home.

TCO, 10/5/16, at 4.     These repairs included caulking around windows and

exterior sealing. The total cost of these repairs was $1,876.30.

        During a bench trial, Homeowner presented the report and expert

testimony of a building inspector, Kevin R. Crane.      Ex. Smith-21 (Crane’s

expert report; HouseMaster Report ID:       CEIKC7900); Notes of Testimony

(N.T.), 7/27/16, at 15-49.      Crane testified about problems with various

components of Homeowner’s house. He explained the ratings system that he

and other inspectors use, including that any element of a building rated as

“poor” “requires immediate attention.” Id. at 12.

        Crane began by testifying that the gutters installed by Contractor

leaked, were not set to the proper pitch to allow gravity to drain the water

downwards, and were installed with non-copper screws at the seams, which

are likely to corrode. Id. at 17-19. He explained that the “water is standing

in the gutter and it’s not draining” and that “it has to be changed.” In his

opinion, the gutters rated as “poor” and “needed to be addressed.” Id.; see

also Ex. Smith-21 at 6, 20 ¶ 1.3 (rating gutters as “poor”; “[g]utters will

require repairs to function properly”).

        Next, Crane testified that the entry doors had “a poor fit and finish.”

N.T., 7/27/16, at 22-23. Although he rated them as “fair” instead of “poor,”

he explained that, here “[f]air means that the element was functional, but

                                      -5-
J-A04042-18



there are certain things about it that may require or will require repair.” His

report recommended that a “qualified contractor should be consulted to

determine remedial action[.]” Ex. Smith-21 at 8.

      He continued that the stone of the front stoop was crumbling. N.T.,

7/27/16, at 24.    His report observed that the “[b]roken stone should be

repaired to avoid hazards and injury.” Ex. Smith-21 at 8.

      Crane testified that trim around the garage door is wood, which was

installed in such a way that it touched the ground and was therefore affected

by runoff water and snow. Id. at 9, 21 ¶ 2.8; N.T., 7/27/16, at 32; TCO,

10/5/16, at 5. Crane rated the trim work as poor and stated that it should be

replaced with an appropriate material.

      Additionally, he stated that the crown molding was cracking, warping,

and separating from the walls and ceilings on the first floor. N.T., 7/27/16,

at 38, 40 (“a pretty significant amount of separation”). His report described

the ceilings as “sub-standard” and offered two possible methods of repairing

the existing conditions. Ex. Smith-21 at 14-15. The report also asserted that

the problems with the ceilings and walls could have been prevented if the

contractor had “secure[d] the interior partitions to the trusses with truss clips”

with nails that were “not driven tight to allow for movement of the truss.”

      He also testified that the staircase and its railing were not secure, rated

them as “poor,” and stated that they “needed to be addressed.”              N.T.,

7/27/16, at 44-45; Ex. Smith-21 at 15-16, 23 ¶ 5.4 (rating stairs and railings

as “poor”).

                                      -6-
J-A04042-18



       He further testified that several of the windows installed by Contractor

were pushed out of their frames, were not properly mounted, and were “not

installed properly.” N.T., 7/27/16, at 19, 45-48. He pointed to the problems

with the rear bedroom window as the most egregious and rated it as “poor.”

Id. at 22, 46, 48. He also knew that there were problems with a window used

for displaying crackle glass but could not recall the specifics.     Id. at 48.

Overall, he rated the windows as “poor,” “because there’s so many issues with

them. It really requires someone to go in and correct them.” Id. at 46, 48;

see also id. at 46 (“you’re going to need someone to come in and correct

them”); Ex. Smith-21 at 8, 20 ¶ 2.1, 23 ¶ 5.5 (rating windows as “poor”). He

also noted that the trim wrap around the windows was loose, with some of it

completely detached. Id. at 8, 20 ¶ 2.1. He explained that the trim at the

sliding joint above windows and doors and the horizontal trim “must be kept

sealed to minimize leakage or decay.”            Id. at 20 ¶ 2.1.   He made no

observations about the color of the trim.

       Finally, at the conclusion of direct examination, Crane agreed that any

aspect of the home that he rated as “poor” needed to be addressed by a

qualified individual. N.T., 7/27/16, at 48.2 The following exchange occurred:

       Q    And, sir, were your opinions given today given within a
       reasonable degree of certainty within your industry, that is, the
       home inspection industry?

       A      Yes.
____________________________________________


2 In his report, Crane also rated the deck as “poor.” Ex. Smith-22 at 8, 21
¶ 2.4.

                                           -7-
J-A04042-18



Id. at 48-49.

      Homeowner also presented the expert testimony of another contractor,

Craig Hoover, to establish the amount of her damages. On February 9, 2015,

Hoover had sent a letter to Homeowner detailing numerous repairs for her

residence (“the Hoover Estimate”). Ex. Smith-22. The Hoover Estimate does

not opine as to why these proposed repairs are needed.

      The Hoover Estimate listed fourteen separate projects. Ex. Smith-22 at

1-2. The first two were for work on areas that had been repaired since the

date of the Hoover Estimate – specifically, for “[e]xterior caulking around the

perimeter of the windows, at the intersection of the stucco-plaster, to seal out

weather infiltration” and for the removal and installation of “a new triple

window unit in the living room,” and their exact cost was known. Id. at 1

¶¶ 1-2. The other items were as follows:

      3.     To remove casing from eleven (11) archway sides and four
      (4) trimmed windows with rounded head pieces then purchase
      new casings to blend with the existing home. All casings will be
      of the same design, matching heads and sides at the miter[ joints]
      ...

      4.     To remove all existing crown molding throughout the home
      and re-install them using a backer board for stability and jointing.
      We will replace with new where needed, glue all joints and cope
      all interior corners. On the second floor I propose to install a
      “wallboard” around the perimeter of the walls, at the ceiling line.
      This board will be painted the same as the crown [moldings]. We
      will then install the crown [moldings] . . .

      5.    [To] remove the existing Bluestone from the front stoop and
      replace it with a new thicker stone . . .

      6.    . . . [T]o completely remove the existing staircase, leading
      to the second floor . . .

                                     -8-
J-A04042-18


       7.    . . . [T]o remove and install a new back bedroom window.
       This window does not close properly . . .

       8.    . . . [To] adjust and re-align the front doors along the center
       “T” astragal to make a complete seal around the perimeter . . .

       9.    . . . [To] replace the existing exterior window trim, on the
       rear deck with a color that matches the rest of the home. . . .

       10. . . . [To] remove the existing [medium density fiberboard]
       trim from the perimeter of the garage doors and replace it with
       [AZEK3] exterior trim boards . . .

       11. . . . [T]o support the existing rear deck off the kitchen. The
       deck cannot be fixed without the use of posts, without extreme,
       extensive measures. . . .

       12. . . . [T]o remove the existing long window that houses the
       owner’s crackle glass collection and replace it with a special order
       Andersen window. . . .

       13. . . . [To] purchase and install a new bathroom fan for
       ventilation of the basement bathroom. . . .

       14. . . . [To] remove all aluminum zip screws that were used
       during installation of the copper gutters and secure all joints with
       solder as described by Larry Clark, of C & L Roofing and Sheet
       Metal. Some replacement of gutter may need to be done to insure
       a clean solder joint along with cleaning of the copper. This will
       result in shinny copper areas for about six to nine months.

Id. at 1-2. “Two items on the Hoover [E]stimate (No. 11 exterior deck and

No. 13 bathroom fan) . . . were additions/charges not in the [Contract] and

were    requested     by   [Homeowner]         after   the   house   was   substantially

constructed and under roof.” TCO, 10/5/16, at 6. Homeowner did not sign

the Hoover Estimate and presented no evidence that she intended to do so.



____________________________________________


3 AZEK is a brand of building products. Hoover testified that AZEK board “is
basically a composite type board that can be milled like any other board, but
resists rot.” N. T., 7/28/16, afternoon session, at 27.

                                           -9-
J-A04042-18



      During trial, Hoover testified about some of the specific items listed on

the Hoover Estimate. For Item No. 5, he stated that he did not plan to do the

stone work himself, and, instead, the cost of that project on the Hoover

Estimate “was based on an estimated cost from [his] mason as a

subcontractor.   [The mason] had given [Hoover] a cost on that.”          N.T.,

7/28/16, afternoon session (“p.m.”), at 22.

      For Item No. 7, when asked if the existing window could be salvaged

and re-used, thereby eliminating the need to purchase a new window, Hoover

answered, “I really hope so. I think so.” Id. at 35. When then asked how

much could be saved if a new window were not needed, Hoover replied, “$800,

maybe.” Id.

      When asked how many hours were needed for Item No. 8, Hoover

responded that he did not know. Id. at 35.

      The cost on the Hoover Estimate for Item No. 14 was also from a

subcontractor, Larry Clark of C & L Roofing and Sheet Metal; however, Hoover

testified that he added “probably” ten percent to the figure provided by Clark

when drafting the Hoover Estimate. Id. at 32-33, 37-38. Clark did not testify,

and no report by Clark was offered into evidence at trial.

      Hoover testified that, in general, he did not separate any labor charge

from materials. Id. at 34. He also did not have his notes with him at trial.

Id. The following exchange concluded Hoover’s direct examination:

      Q     And Mr. Hoover, the opinions that you’ve given today, did
      you give them within a reasonable degree of certainty within the
      construction industry?

                                    - 10 -
J-A04042-18


       A      Yes.

Id. at 33.

       Contractor and Bridget also both testified. Contractor testified that he

began his construction business in 1972 as a sole proprietor and married

Bridget in 1995; she began working for his business sometime thereafter but

had no ownership interest in the business.         N.T., 7/27/16, at 4.   Bridget

testified that she would sign checks and sign for mail addressed to Contractor.

Id. at 67, 76.       Bridget further testified that, after Homeowner had begun

occupying her home, Bridget prepared a document dated May 23, 2013, for

Homeowner to sign agreeing to $1,000 monthly payments on the unpaid

balance for the construction and subsequent landscaping agreement, which

Homeowner never signed. Id. at 67-68. The heading of the document stated:

“Larry Glenn and his wife, Bridget Glenn, d/b/a Larry Glenn Construction.”

       Following trial, in October 2016, the trial court entered a verdict in the

amount of $28,174.96 for Homeowner’s “refund due under [Contractor]’s

claim,” TCO, 10/5/16, at 4, and entered a verdict on Homeowner’s

counterclaim in favor of Homeowner in the amount of $32,931.30.4             The


____________________________________________


4  The trial court calculated that Homeowner should have been charged
$329,501.87 by Contractor for construction of her home, but Homeowner had
already paid Contractor $370,750.53. TCO, 10/5/16, at 3. The trial court
thus computed that Homeowner was entitled to a refund of $41,248.66. Id.
The trial court also found that Homeowner separately owed Contractor
$13,073.70 for landscaping. Id. at 4. The trial court thus concluded that
Homeowner’s refund due under Contractor’s claim should be reduced to
$28,174.96. Id.


                                          - 11 -
J-A04042-18


combined verdict in favor of Homeowner and against Contractor therefore was

$61,106.26. When the trial court calculated these amounts, it did not include

Item No. 11 and 13 in the Hoover Estimate, and it used an hourly rate for

Contractor’s labor of $16.00, which was the amount Contractor paid his

employees per hour, and not the $35.00 per hour rate identified in his

invoices. The trial court also declared that Contractor’s wife, Bridget, did not

have any ownership interest in Contractor’s business and thus had no liability

for the claims raised by Homeowner.

       Both Contractor and Homeowner filed post-trial motions. Homeowner

asked, in part, to amend her complaint to reinstate the UTPCPL claims,

alleging Contractor had engaged in “fraudulent or deceptive conduct creating

the likelihood of confusion or misunderstanding” by “greatly inflat[ing] the

rate he was charging[.]” Homeowner’s Mot. for Post-trial Relief, 10/13/16, at

3 ¶¶ 19, 26.5

       In March 2017, the trial court denied all post-trial motions, except for

acknowledging that it had miscalculated the damages for Homeowner’s

counterclaim:


____________________________________________


5 Paragraph 19 of Homeowner’s motion for post-trial relief cites to 73 P.S.
§ 201-2(4)(vii) but employs the language of the “catchall” provision of § 201-
2(4)(xxi).  We believe that the citation to Subsection (4)(vii) was a
typographical error and will consider Homeowner’s challenge pursuant to
Subsection (4)(xxi) to be preserved for appeal.




                                          - 12 -
J-A04042-18


       [The trial c]ourt erroneously added Items 1 and 2 on the Hoover
       [Estimate] to the total damage figure. This was in error because
       the [c]ourt did not intend to award those two items as damages.
       . . . [D]amages were being awarded on the Hoover [E]stimate[]
       for Items 3 through 8, 12, and 14. . . . The award on
       [Homeowner]’s counterclaim should have been $26,936.25 plus
       $1,055.00 for Items 9 and 10 which were addressed separately.[6]
       In addition, the [c]ourt awarded $1,876.30 for repaired damages.
       The total counterclaim award should have been $29,867.55.

TCO, 3/6/17, at 3-4. In other words, the trial court had inadvertently included

the first two projects listed on the Hoover Estimate twice in the total – once

for the estimate and once for the exact amount. The trial court agreed that

the inclusion of the cost of these two items for a second time was in error.

The trial court therefore ultimately awarded damages for the actual costs of

the exterior caulking around the perimeter of the windows, the removal of the

existing window in the living room, and the installation of a new living room

window (all of which had been completed) plus the uncompleted projects listed

as Item No. 3 to 8, 12, and 14 in the Hoover Estimate. Ex. Smith-22 at 1-2;

TCO, 10/5/16, at 6-7. Thus, the trial court awarded damages for the repair

of the crown molding, the stoop, the front doors, the garage door trim, the

gutters, and the windows; the repairs for the windows included caulking,

replacement of some exterior trim, removal and replacement of casing for

____________________________________________


6The trial court explained that Item No. 9 and Item No. 10 “are minor in the
estimate (relatively speaking) and will be accepted as reasonable. They total
$1,055.00 and will be accepted.” TCO, 10/5/16, at 6. In its brief to this Court,
Appellant incorrectly states that these two items were “not awarded by Court”
and therefore does not challenge their inclusion in the damages award.
Appellant’s Brief at 37.


                                          - 13 -
J-A04042-18


fifteen windows, and the full removal and replacement of windows in the living

room and bedroom and of a long window for Homeowner’s glass collection.

Accordingly,   the   trial   court   reduced    Homeowner’s   damages    on   her

counterclaim from $32,931.30 to $29,867.55.

      In March 2017, Contractor filed a notice of appeal.        In April 2017,

Homeowner also filed a notice of appeal. The trial court did not order the

parties to file concise statements of errors complained of on appeal pursuant

to Pa.R.A.P. 1925(b), and neither party filed such a statement. In May 2017,

this Court consolidated both appeals sua sponte.

      Contractor raises three issues for our review:

      I.    Did the [trial] court err in reducing the hourly rate the
      Contractor noted in his invoices when the Homeowner did not
      dispute the hourly rate listed in all invoices and made thirteen (13)
      payments (over thirteen months) after receiving the initial
      invoice?

      II.   Did the [trial] court err in awarding damages when
      Homeowner’s liability expert did not offer an opinion sufficient to
      establish that Contractor’s work fell below the industry standard?

      III. Did the [trial] court err in awarding damages when the
      proposed repair work of Homeowner’s damages expert did not
      match what the Homeowner’s liability expert indicated needed to
      be fixed?

Contractor’s Brief, 578 MDA 217, at 4 (suggested answers omitted).

      Homeowner raises four questions for our review:

      A.    Whether the trial court erred in determining that Appellee
      Bridget Glenn had no liability to [Homeowner]?

      B.    Whether the trial court erred in determining that
      [Homeowner] was not entitled to damages for the improper
      construction of a deck?


                                       - 14 -
J-A04042-18


      C.    Whether the trial court erred when it lowered the estimated
      cost of repairs to [Homeowner]’s house?

      D.   Whether the trial court erred in dismissing and then refusing
      to permit reinstatement of [Homeowner]’s claim for damages
      under the [UTPCPL]?

Homeowner’s Brief, 659 MDA 2017, at 4 (suggested answers omitted).

      Our standard of review for non-jury trial verdicts is as follows:

      Our appellate role in cases arising from non-jury trial verdicts is
      to determine whether the findings of the trial court are supported
      by competent evidence and whether the trial court committed
      error in any application of the law. The findings of fact of the trial
      judge must be given the same weight and effect on appeal as the
      verdict of a jury. We consider the evidence in a light most
      favorable to the verdict winner. We will reverse the trial court
      only if its findings of fact are not supported by competent evidence
      in the record or if its findings are premised on an error of law.
      However, where the issue concerns a question of law, our scope
      of review is plenary.

      The trial court’s conclusions of law on appeal originating from a
      non-jury trial are not binding on an appellate court because it is
      the appellate court’s duty to determine if the trial court correctly
      applied the law to the facts of the case.

Bank of N.Y. Mellon v. Bach, 159 A.3d 16, 19 (Pa. Super.) (citation

omitted), appeal denied, 170 A.3d 1019 (Pa. 2017).

                             Contractor’s Issues

                                  Hourly Rate

      Contractor first contends that the trial court “committed an error of law

by reducing the hourly rate under the facts involved in this action.”

Contractor’s Brief, 578 MDA 2017, at 20. Specifically, he argues that the trial

court “erroneously reduced the agreed-upon hourly rate of $35.00 per hour

to $16.00 per hour based upon” Lytle, Campbell & Co. v. Sommers, Fitler

                                     - 15 -
J-A04042-18


& Todd Co., 120 A. 409 (Pa. 1923). Contractor’s Brief, 578 MDA 2017, at

20. He continues that “[w]aiting to dispute the hourly rate until litigation has

commenced nearly two years after receiving the invoices constitutes laches

which estops Homeowner from seeking an adjustment to the hourly rate.” Id.

at 25.

         An award of compensatory damages will not be reduced or set aside by

a reviewing court unless it is so grossly exorbitant, or so clearly and

immoderately excessive, as to suggest unfairness, mistake, partiality,

prejudice, or corruption and to shock the court’s conscience or sense of justice.

Connolly v. Phila. Transp. Co., 216 A.2d 60, 64 (Pa. 1966); City of Phila.

v. Phila. Transp. Co., 162 A.2d 222 (Pa. 1960); Flank v. Walker, 157 A.2d
163, 171 (Pa. 1960).

         Only in an extreme case, where the amount of the verdict is clearly
         excessive, where it can be definitely said the [fact-finder] abused
         its discretion, should an appellate court reduce the verdict--and
         then only to bring the amount within the reasonable limitations of
         the facts and circumstances of that particular case.

Huey v. Blue Ridge Transp. Co., 39 A.2d 602, 604 (Pa. 1944).

         As noted by Contractor, the trial court relied on Lytle, 120 A. 409. In

that case, the plaintiff-contractor agreed to perform some remodeling work

for the defendant. Id. at 409. “Itemized statements were sent each week of

the amounts paid the various workmen, and the cost of materials used. At

the foot of each statement was a charge ‘10% overhead.’” Id. at 410. This

calculation is similar to the one used in the Contract in the current case, which



                                       - 16 -
J-A04042-18


included time, materials, and 10% profit.       In Lytle, id. at 410-11, the

contractor contended that he was owed the “10% overhead” to recover the

costs of insurance, rent, heat, light, taxes, and other expenses. The Supreme

Court of Pennsylvania disagreed and found in favor of the defendant, holding:

      The term ‘time and material basis’ was intended to include the
      necessary cost of operation affecting the particular undertaking,
      the cost of labor and materials that went into and became part of
      the finished product; each outlay thus expended must be included.
      To this there was to be added a profit of 10 per cent. This latter
      item was intended to take care of that proportionate share of
      overhead charges included in the company’s ‘overhead,’ or
      general expense, discussed above, as this contract related to
      plaintiff's general contracts, and, unless expressly written into the
      contract by defining exactly the overhead intended to be covered,
      the words ‘time and material,’ and like expressions, will not
      include overhead charges, but refer solely to the wages and
      salaries of the men engaged in the particular work contracted for
      and the actual cost of the materials furnished.

Id. at 411. Our Supreme Court made clear in Lytle that, without an explicit

agreement, Contractors may only recover overhead costs under the “10%”

portion of the contract.

      This Court expanded upon Lytle in Wolfe v. Pickell, 205 A.2d 634, 636

(Pa. Super. 1964), noting “[t]ime and materials contracts are contracts which

provide for the payment to the contractor of the cost of his labor and

materials, plus a percentage for his overhead and profit.”           This Court

elaborated that “time and material costs include only those that are direct

operating charges which may be seen as the work progresses.” Id. (emphasis

added).




                                     - 17 -
J-A04042-18


      Here, allowing Contractor to charge whatever he wishes for the “time”

portion of the Contract would be in direct conflict with Lytle.       Contractor

claims that the inflated hourly rate is necessary to recover the cost of his

overhead expenses; however, the holding in Lytle states that such expenses

are to be recovered under the “10% profit” portion of the Contract.

      As the trial court explained: “If [Contractor] wished to charge more

than that, the exact charge for time should have been inserted in the written

agreement which he prepared and submitted to [Homeowner]. This was not

done and thus [Contractor] should be limited in that charge to the $16.00 per

hour rate.” TCO, 3/6/17, at 2.

      We also note that none of the cases cited by Contractor in his brief to

this Court for this issue concern a construction contract or any contract listing

specific amounts or rates for time, materials, and profit.     See Contractor’s

Brief, 578 MDA 2017, at 24-27 (citing Braun v. Wal-Mart Stores, Inc., 24
A.3d 875, 896 (Pa. Super. 2011) (citing Schott v. Westinghouse Elec.

Corp., 259 A.2d 443, 448 (Pa. 1969)); In re Estate of Leitham, 726 A.2d
1116, 1119 (Pa. Cmwlth. 1999); Roznowski v. Pa. Nat’l Mut. Cas. Ins. Co.,

493 A.2d 775 n.3 (Pa. Super. 1985) (citing Fix’s Estate, 12 A.2d 826 (Pa.

Super. 1940)); Donahue v. City of Phila., 41 A.2d 879, 880-81 (Pa. Super.

1945) (citing Robbins v. Weinstein, 17 A.2d 629 (Pa. Super. 1941))).

      As for Contractor’s invocation of laches that allegedly estop Homeowner

from seeking an adjustment to the hourly rate, Contractor’s Brief, 578 MDA


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2017, at 25, we note that the party asserting laches must establish: (I) that

there was a delay arising from the complaining party’s failure to exercise due

diligence; and (II) that prejudice to the asserting party resulted from the

delay. Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1988). Here, Homeowner did

exercise due diligence, as she expressed her concerns about Contractor’s

charges while Contractor was still working on her home. Since Contractor’s

attempt to raise laches fails on the first prong, we need not address the second

prong. Id.

 Sufficiency of the Evidence to Establish Contractor’s Liability and Damages

         Contractor argues that the trial court “erroneously awarded Homeowner

damages for repair when there was not sufficient evidence presented that

Contractor’s work fell below the industry standard.” Contractor’s Brief, 578

MDA 2017, at 27. Contractor notes that, “[o]n Homeowner’s counterclaim for

alleged poor workmanship, Homeowner had the burden of proving by a

preponderance of the evidence that Contractor’s work failed to meet the

standard in the industry such that it constituted a breach of the contract.” Id.

at 28.

         Contractor also contends that Homeowner’s “experts do not state their

opinions to a reasonable degree of certainty.” Contractor’s Brief, 578 MDA

2017, at 31. Contractor cites, id. at 30, to Wiggins v. Synthes (U.S.A.),

29 A.3d 9 (Pa. Super. 2011), for the principle that “[e]xpert testimony must

establish, to a reasonable degree of certainty, that an injury stemmed from


                                     - 19 -
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the alleged tortious conduct.” Id. at 15 (citation omitted); accord Labes v.

New Jersey Transit Rail Operations, 63 A.2d 1195, 1198 (Pa. Super.

2004).   Contractor also references Kravinsky v. Glover, 396 A.2d 1349,

1356 (Pa. Super. 1979) (citations omitted): “An expert fails this standard of

certainty if he testifies ‘that the alleged cause ‘possibly,’ or ‘could have’ led to

the result, that it ‘could very properly account’ for the result, or even that it

was ‘very highly probable’ ‘that it caused the result.’” Contractor’s Brief, 578

MDA 2017, at 31. Here, Contractor contends that Crane “does not opine with

the required certainty that [Contractor] breached the applicable standard of

care” and that the Hoover Estimate “simply gives estimates for performing

certain work.” Id.

      Furthermore, Contractor challenges the inclusion of several of the

projects in the damages award. Contractor’s Brief, 578 MDA 2017, at 32-39.

      Homeowner answers that the “trial court was correct in the measure of

damages it awarded for work completed by [C]ontractor that was performed

in an unworkmanlike manner and below the industry standard.” Homeowner’s

Brief, 578 MDA 2017, at 22.       Homeowner points to the myriad of specific

problems with the home enumerated by Crane - including the leaking and

improperly installed gutters and the improperly framed and mounted windows

– as evidence that Contractor’s performance was unworkmanlike and below

the industry standard. Id. at 23-25 (citing N.T., 7/27/16, at 17-19, 45-48).

      Damages for a breach of contract should place the aggrieved party
      in as nearly as possible in the same position it would have

                                      - 20 -
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       occupied had there been no breach. To that end, the aggrieved
       party may recover all damages, provided (1) they were such as
       would naturally and ordinarily result from the breach, or (2) they
       were reasonably foreseeable and within the contemplation of the
       parties at the time they made the contract, and (3) they can be
       proved with reasonable certainty.

Ely v. Susquehanna Aquacultures, Inc., 130 A.3d 6, 10 (Pa. Super. 2015)

(internal brackets, citations, and quotation marks omitted).

       Here, the trial court awarded damages for seven broad areas of

Homeowner’s house: windows, crown molding, front stoop, staircase, front

doors, garage door trim,7 and gutters. Ex. Smith-22 at 1-2; TCO, 10/5/16, at

6-7. Homeowner’s liability expert, Crane, provided abundant testimony that

each of these areas fell below the industry standard and needed correction.

Crane explicitly testified that his opinions were given with a reasonable degree

of certainty within his industry – i.e., the home inspection industry.      N.T.,

7/27/16, at 48-49.        Moreover, Contractor offered no independent, expert

evidence to counter Crane’s assessment of the home and its construction.

Furthermore, in the judgment of the trial court, Crane’s testimony established

that Contractor’s work was not competent and did not meet applicable

industry standards, and we cannot substitute our judgment for that of the

____________________________________________


7 As noted above, Contractor failed to challenge the inclusion of Item No. 10,
the garage door trim, in the damages award. Appellant’s Brief at 37. To the
extent that we were to examine the evidence about the garage door trim, we
would find that sufficient evidence was presented to support Contractor’s
liability. Ex. Smith-21 at 9, 21 ¶ 2.8; N. T., 7/27/16, at 32; TCO, 10/5/16, at
5. However, no evidence was presented as to whether the renovations
proposed in the Hoover Estimate were necessary to place the garage door trim
within the industry standard.

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fact-finder. See Bank of N.Y. Mellon, 159 A.3d at 19. Additionally, viewing

all the evidence admitted at trial in the light most favorable to Homeowner as

verdict winner, see id., the items that Crane found to be deficient reflected

the original construction and the conditions that existed when the house was

presented to Homeowner for occupancy. TCO, 10/5/16, at 6.

     Examining each proposed project area individually, beginning with the

windows, we note that Crane specifically stated that the problems with the

windows occurred, because they were “not installed properly.” N.T., 7/27/16,

at 19. He focused on the rear bedroom window in particular. Id. at 22, 46,

48. The windows could only have been improperly mounted by Contractor –

i.e., these problems with Homeowner’s house could not have been caused by

anything besides sub-standard workmanship by Contractor.        Id. at 45-49.

Thus, there is sufficient evidence to establish that Contractor is liable for

damages for the windows.

     Homeowner’s damages expert, Hoover, also testified that his opinions

were given within a reasonable degree of certainty within his industry – i.e.,

the construction industry. N. T., 7/28/16, p.m., at 33. However, no evidence

was presented that the specific repairs to the windows that Homeowner had

already made or that were enumerated in the Hoover Estimate were the best

or correct choices or that they did not augment any windows, beyond what

Contractor and Homeowner had originally agreed would be done.




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      Homeowner had already caulked all of the windows and removed and

replaced a window in the living room. The Hoover Estimate also proposed

replacing the casing on eleven windows, the entire window in the rear

bedroom, and the entire long window displaying Homeowner’s glass collection.

Ex. Smith-22 at 1-2 ¶¶ 3, 7, 12. No testimony was presented that caulking

and replacing casings would fix some of the windows. Furthermore, although

Crane did testify about poor condition of the rear bedroom window, he could

not recall what exact problems existed with the long display window, and he

gave no testimony on the living room window, thereby making it impossible

to determine whether the full replacement of these windows was or will be

necessary. N.T., 7/27/16, at 22, 44, 46, 48. Moreover, Hoover testified that

the back bedroom window may not need to be fully replaced, thus saving

about $800. N.T., 7/28/16, p.m., at 35.

      As   for   the   other   areas   that     the   Hoover   Estimate   proposes

repairing, Crane explicitly referred to the ceilings as “sub-standard,” with the

crown molding cracking, warping, and separating from the walls and ceilings.

Ex. Smith-21 at 14; N.T., 7/27/16, at 38, 40. Crane also presents two possible

methods of repairing these faults, but there was no testimony as to which (if

either) method the Hoover Estimate was proposing nor why one particular

course of repair was preferable to any other.

      The front stoop was below the industry standard, because it was

crumbling. Id. at 24. Nevertheless, Crane’s report stated that the “[b]roken


                                       - 23 -
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stone should be repaired[,]” whereas the Hoover Estimate proposes removing

the existing stone and replacing it. Compare Ex. Smith-21 at 8 with Ex.

Smith-22 at 1 ¶ 5. We are uncertain why this discrepancy exists and if there

is a valid reason why the stone should now be replaced instead of repaired.8

Additionally, Hoover testified that the cost for Item No. 5 on the Hoover

Estimate was from a third party, who did not testify, because Hoover did not

plan to do the work himself. N.T., 7/28/16, p.m., at 22. Thus, no explanation

or context was provided for this estimated cost to repair the front stoop. See

id.

       Likewise, liability was established for the poor installation of the

staircase and its railing, but no testimony was presented as to whether the

Hoover Estimate’s proposal to remove the entire existing staircase and to

“reframe” it to a different part of the house is needed or if an alternative

means of fixing the staircase and railing were available. N.T., 7/27/16, at 44-


____________________________________________


8 Contractor argues that Homeowner “failed to mitigate her damages” for the
front stoop and “should not be permitted to ‘upgrade’ to thicker stone.”
Contractor’s Brief, 578 MDA 2017, at 35. However, while Contractor is correct
that a party injured under a breach of contract is under a duty to mitigate
damages, “[t]he burden to prove this duty to mitigate is placed on the party
who actually breaches the contract[.]” Portside Inv'rs, L.P. v. N. Ins. Co.
of New York, 41 A.3d 1, 15 (Pa. Super. 2011). Here, Contractor was found
to have breached the contract; thus, the burden is on him to prove that
Homeowner’s reasonable efforts could have reduced the cost of the repairs to
the front stoop. Id. Nevertheless, Contractor has failed to provide or to
indicate any evidence that the new stone was of better quality, was more
expensive, or was not peculiarly suited to correcting the problems with the
stoop.


                                          - 24 -
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45; Exs. Smith-21 at 15-16, 23 ¶ 5.4 & Smith-22 at 1-2 ¶ 6. Crane did not

recommend that the entire staircase be moved or that a passage be closed.

Homeowner can only be compensated for necessary repairs. She cannot be

reimbursed for enhancements to the original plan.

      Additionally, Crane testified that the entry doors had “a poor fit and

finish” and that remedial action was necessary, but there was no testimony

that all of the actions planned in the Hoover Estimate – adjusting and re-

aligning the doors, removing and replacing the exterior casings, and painting

the new casings – are necessary to elevate the front doors to industry

standards. N.T., 7/27/16, at 22-23; Exs. Smith-21 at 8 & Smith-22 at 2 ¶ 8.

What is more, Hoover testified that he did not know how many hours would

be involved in adjusting the door. N.T., 7/28/16, p.m., at 35.

      Finally, the evidence was sufficient to establish that the installation of

the gutters by Contractor was below industry standards, because they were

improperly pitched and were fit with screws that were likely to corrode. N.T.,

7/27/16, at 17-19. Crane opined that the repair of the gutters was required

so that water did not pool in them instead of draining.      Id. at 18-19; Ex.

Smith-21 at 6, 20 ¶ 1.3 (“[g]utters will require repairs to function properly”).

Nonetheless, no testimony was presented as to whether the specific repairs

recommended in the Hoover Estimate – removing the zip screws, soldering

the joints, and replacement of some portions of the gutters themselves –

provide the best method to bring the gutters up to industry standards. Ex.


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J-A04042-18


Smith-22 at 2 ¶ 14. Also, similar to the front stoop, Hoover testified that the

cost for the gutters was from a third party, who did not testify and from whom

no report was provided.     N.T., 7/28/16, p.m., at 32-33.       Hence, again,

although the evidence supports the finding that some repair of the gutters is

necessary, there was no clarification for why these exact repairs should be

undertaken or how the cost was determined. See id. Furthermore, Hoover

testified that he added “probably” ten percent to the third party’s proposed

figure, without any explanation as to why, besides that such an addition was

“pretty standard.” Id. at 37-38.

      In general, for all the projects listed on the Hoover Estimate, Hoover

testified that he did not separate any labor charge from materials.        N.T.,

7/28/16, p.m., at 34. He also did not have his notes with him at trial. Id.

For these general reasons and for the specific reasons listed under each

suggested repair, we conclude that Homeowner’s damages were not proven

with reasonable certainty nor that they would place her in as nearly as possible

the same position she would have been in had Contractor built her home

correctly and not breached the Contract. See Ely, 130 A.3d at 10.

      Having determined that damages were not proven with reasonable

certainty, we now consider whether a new trial on damages should be granted.

In Shiflett v. Lehigh Valley Health Network, Inc., 174 A.3d 1066 (Pa.

Super. 2017), we explained:

      A court has discretion to hold a new trial solely on the issue of
      damages if: “(1) the issue of damages is not ‘intertwined’ with

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      the issue of liability, and (2) ... the issue of liability has been ‘fairly
      determined.’ ” Mirabel v. Morales, 57 A.3d 144, 152 (Pa. Super.
      2012); see Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1, 7–8
      (1994); Troncatti v. Smereczniak, 428 Pa. 7, 235 A.2d 345,
      346 (1967); Kraner v. Kraner, 841 A.2d 141, 147 (Pa. Super.
      2004); Lambert v. PBI Indus., 244 Pa.Super. 118, 366 A.2d
944, 955–57 (1976). “[L]iability is not intertwined with damages
      when the question of damages is readily separable from the issue
      of liability.” Mirabel, 57 A.3d at 152 n.8. The liability issue has
      been “fairly determined” when liability has been found “on clear
      proof” under circumstances that would not cause the verdict to be
      subject to doubt. Lambert, 366 A.2d at 956. Here, we have
      resolved the issues raised by [defendant-appellant] Lehigh Valley
      [Health Network, Inc.,] regarding the propriety of the liability
      verdict regarding its corporate negligence, and it appears to us
      that the damages issue is readily separable from that liability
      issue. We therefore see no impediment to limiting the new trial
      to damages issues.

      In this situation, a limited new trial is the preferred course. . . .

      This Court has consistently held that where the only trial errors
      disclosed in the record deal with specific and discrete issues, the
      grant of a new trial should be limited to those issues. In Messer
      v. Beighley, 409 Pa. 551, 187 A.2d 168 (1963), this Court held
      that where errors deal exclusively with damages, the new trial
      should be limited to damages. Likewise, in McKniff v. Wilson,
      404 Pa. 647, 172 A.2d 801 (1961), we held that since the only
      meritorious assignments of error involved damages, retrial should
      concern that issue alone.

Id. at 1092–93 (some formatting).

      Here, we have resolved the issues raised by Contractor regarding the

propriety of the liability verdict, and the only meritorious assignments of error

involve damages. See Shiflett, 174 A.3d at 1093. Hence, the damages issue

is readily separable from the issue of Contractor’s liability, and we therefore

see no impediment to limiting the new trial to damages issues. See id.




                                        - 27 -
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        In its original opinion, the trial court itself bemoaned the state of the

evidence in this action, referring to it as “conflicting and at times incomplete.”

TCO, 10/5/16, at 2.9 Thus, in order to resolve all of these concerns so that

damages may be proven with reasonable certainty and to complete the

evidence in order to avoid the need for speculation by the trial court, we

vacate the judgment and remand for a new hearing limited to the issue of

damages. See Shiflett, 174 A.3d at 1093; Ely, 130 A.3d at 10; see also

TCO, 10/5/16, at 2.

                                Homeowner’s Issues

                                   Bridget’s Liability

        Homeowner first insists that the “trial court erred in determining” that

Bridget “had no liability” to Homeowner. Homeowner’s Brief, 659 MDA 2017,


____________________________________________


9   The trial court’s full comment was:

        In attempting to resolve the present litigation the [trial c]ourt has
        been confronted with various complexities which involved
        interpretation of the [Contract], [Contractor]’s performance,
        [Homeowner]’s making changes/additions after the dwelling was
        substantially completed, [Contractor]’s monthly billings which had
        almost no connection to the allowances called for in the
        agreement, [Homeowner]’s counterclaim for alleged workmanship
        defects and the use of inappropriate materials, and the parties
        entering into a post construction landscaping agreement. All of
        these items were addressed with conflicting and at times
        incomplete evidence which was also at times not clearly
        understandable. Against this background with . . . much time and
        effort, the [trial c]ourt has come to the ensuing Decision.

TCO, 10/5/16, at 2.


                                          - 28 -
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at 15. Homeowner argues that Bridget also does business as Larry Glenn

Construction.

      With respect to this challenge, after a thorough review of the record,

the briefs of the parties, the applicable law, and the well-reasoned analysis of

the Honorable Carson V. Brown, we conclude that this claim merits no relief.

The trial court opinion dated October 5, 2016, comprehensively discusses and

properly disposes of this question:

      [Contractor] started his business in 1972 as a sole proprietor. He
      and [Bridget] were married in 1995 and sometime after that
      Bridget began doing office work for the business. There was no
      evidence that [Homeowner] had any contact with [Bridget] in the
      negotiating of the construction contract and the subsequent
      agreement to construct her home. After the home was entered
      into occupancy by [Homeowner], [Bridget] prepared a proposed
      agreement dated May 23, 2013 for [Homeowner] to sign for
      monthly payments on what [Contractor] claimed was the unpaid
      balance for the construction and the subsequent landscaping
      agreement. In preparing the agreement she indicated in the
      heading that the business was “Larry Glenn and his wife, Bridget
      Glenn, d/b/a Larry Glenn Construction.” She also signed the
      agreement.      [Homeowner] did not sign this agreement.
      [Homeowner] also presented evidence of [Contractor]’s business
      checking account where [Bridget] forged [Contractor]’s name on
      certain checks in paying medical insurance payments.

      [Contractor] denies that [Bridget] has any ownership interest in
      his business. [Homeowner]’s evidence does little more than
      establish that [Bridget] took a unilateral action claiming to be a
      part owner of [Contractor]’s business. No evidence has been
      presented showing any transaction between [Contractor] and
      [Bridget] vesting in her such an ownership interest. Her forging
      her husband’s signature on certain business account checks was
      perhaps foolish, if not criminal, but it falls short of establishing
      that she held an ownership interest in the business. Accordingly,
      the [trial c]ourt [found] in favor of [Bridget] concluding that she
      has no liability with regard to the claims raised by [Homeowner].



                                      - 29 -
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TCO, 10/5/16, at 7.     Consequently, with respect to the issue of Bridget’s

liability, as the findings of the trial court are supported by competent evidence,

we affirm on the basis of the trial court opinion.

                                      Deck

      Next, Homeowner alleges that the trial court erred “in determining that

[she] was not entitled to damages for the improper construction of a deck.”

Homeowner’s Brief, 659 MDA 2017, at 22.

      Here, the trial court stated that it did not award damages to Homeowner

for the exterior deck, because the deck was not included in the Contract and

was requested by Homeowner after the house was “substantially constructed.”

TCO, 10/5/16, at 6; see also TCO, 3/6/17, at 2 (the “outside deck” was “not

done under the original agreement”). The deck could not be made a part of

the structure of the house after it was built. TCO, 10/5/16, at 6. Contractor

“in constructing it wanted to put support posts under the outer edges but

[Homeowner] refused to have this done.” Id. Consequently, the trial court

concluded that Homeowner “was a participant in this problem.”                 Id.

Accordingly, the finding of the trial court that Homeowner was not entitled to

damages for the cost of the deck was supported by competent evidence, and

we will not reverse the trial court. Bank of N.Y. Mellon, 159 A.3d at 19.

                                    Damages

      Homeowner contends that “[t]he trial court erred when it lowered the

estimated cost of repairs to [her] house.” Homeowner’s Brief, 659 MDA 2017,


                                      - 30 -
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at 28. As we are remanding for a hearing on damages, which may result in a

different calculation of the damages award, we need not reach this issue.

            Unfair Trade Practices and Consumer Protection Law

      Finally, Homeowner suggests that the “trial court erred in dismissing

and then refusing to permit reinstatement of [her] claim for damages” under

the UTPCPL and “by failing to permit [Homeowner] to join [Bridget] related to

those claims.” Homeowner’s Brief, 659 MDA 2017, at 30. She contends, in

part, that she “proved that Contractor and Wife greatly inflated the costs

under the contract” by charging an hourly rate of $35.00 for labor when

Contractor only paid his employees $16.00 per hour, “a claim never addressed

[in the preliminary objections] and one that falls squarely within Section 201-

2(4)(xxi) of the UTPCPL.” Id. at 36 (citing TCO, 3/6/17, at 1-4; TCO, 10/5/16,

at 2-3).

      This issue “involve[s] statutory interpretation, raise[s] a question of law,

and [is] subject to de novo and plenary review.” Krishnan v. Cutler Grp.,

Inc., 171 A.3d 856, 892 n.23 (Pa. Super. 2017) (citation omitted).

      The UTPCPL makes unlawful certain unfair or deceptive acts or practices

enumerated in 73 P.S. § 201-2(4) and creates a private cause of action for

anyone who suffers an ascertainable loss as a result of these acts or practices.

73 P.S. §§ 201-3, 201-9.2(a).         In her counterclaim against additional

defendant, Homeowner alleges that Contractor and Bridget violated the

UTPCPL by “[r]epresenting that . . . services are of a particular standard,


                                     - 31 -
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quality or grade, . . . [when] they are of another” and by “[e]ngaging in any

other fraudulent or deceptive conduct which creates a likelihood of confusion

or of misunderstanding,” thereby violating § 201-2(4)(vii) and (xxi),

respectively. Answer with New Matter & Countercl., 3/3/14, at ¶¶ 95-96.

       However, in her brief to this Court, Homeowner does not cite to any

evidence of misrepresentations made by Contractor or Bridget about the

standard, quality, or grade of the Contractor’s services. Homeowner’s Brief,

659 MDA 2017, at 30-39.10 Her bald allegations are insufficient to support a

claim pursuant to 73 P.S. § 201-2(4)(vii).

       For Section 201-2(4)(xxi), the “catchall” provision of the UTPCPL,

plaintiffs must prove either common law fraud or deceptive conduct. In re

Strong, 356 B.R. 121, 138 (Bkrtcy. E.D. Pa. 2004).11       To establish either

common law fraud or deceptive conduct, a plaintiff must establish an intent

to mislead. Krishnan, 171 A.3d 856, 892 n.24 (elements of common law

fraud include the intent to mislead another person); Johnson v. MetLife


____________________________________________


10 In her brief to this Court, Homeowner makes no explicit argument about 73
P.S. § 201-2(4)(vii). She only mentions this subsection in a procedural history
of her UTPCPL claim. Homeowner’s Brief at 31, 33 (included in counterclaim
and complaint to join additional defendant, because Contractor and Bridget
“provided work of a very poor quality after assuring [Homeowner] the work
would be of good quality, in violation of 73 P.S. § 201-2(4)(vii)”).
11 “We may use decisions from other jurisdictions for guidance to the degree
we find them useful and not incompatible with Pennsylvania law.” Newell v.
Mont. W., Inc., 154 A.3d 819, 823 n.6 (Pa. Super. 2017) (citation and
internal quotation marks omitted).


                                          - 32 -
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Bank, N.A., 883 F.Supp.2d 542,548 (E.D. Pa. 2012) (“[d]eceptive conduct

under [§ 201-2(4)(xxi)] is defined as intentional misleading by falsehood

spoken or acted” (citations and internal quotation marks omitted)).      Once

again, Homeowner has failed to direct us to any evidence of Contractor’s or

Bridget’s intent to mislead. Homeowner’s Brief, 659 MDA 2017, at 30-39.

Hence, Homeowner offers no evidence showing that Contractor or Bridget

engaged in common law fraud or deceptive conduct either by their actions or

their words. Homeowner therefore has not proven that the trial court erred

in dismissing her UTPCPL claim pursuant to § 201-2(4)(xxi).12

       In conclusion, we affirm Contractor’s liability to Homeowner, that

Bridget has no liability to Homeowner, and that Homeowner has no liability to

Contractor, but we vacate the judgment and remand for a new hearing limited

to the issue of damages.

       Affirmed in part and vacated in part.         Judgment vacated.   Case

remanded. Jurisdiction relinquished.

       Judge Stabile joins the memorandum.

       Judge Nichols files a concurring statement.



____________________________________________


12 As Homeowner failed to demonstrate in her brief that any evidence had
been presented at trial to support a UTPCPL claim, we need not consider
whether a properly established UTPCPL claim would still have been correctly
dismissed by the trial court pursuant to the “gist of the action” doctrine.
Knight, 81 A.3d at 950; see Homeowner’s Brief, 659 MDA 2017, at 31, 34,
36-37 n.5; Contractor’s Brief, 659 MDA 2017, at 24-25; Order, 5/16/14, at 3,
5.

                                          - 33 -
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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/25/2018




                          - 34 -