Independent Enterprises v. JD Fields

J-A07041-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

INDEPENDENT ENTERPRISES, INC. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

JD FIELDS & CO., INC.

Appellant No. 1421 WDA 2014

Appeal from the Judgment Entered August 4, 2014

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): GD-12-013078

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY MUNDY, J.: FILED MARCH 26, 2015

Appellant, JD Fields & Co., Inc. (JD Fields), appeals from the August 4,

2014 judgment of $38,601.66 entered, after a jury trial, in favor of Appellee,

Independent Enterprises, Inc. (Independent). After careful review, we

affirm.

The trial court summarized the relevant factual and procedural history

of this case as follows.

[Independent] is a construction company

specializing in utility contracting involving water and

sewer line work. [JD Fields] is a supplier of sheet

piling products. [Independent] purchased sheet

piling material from [JD Fields] … to build a

cofferdam in its efforts to complete a construction

project. Sheet piling consists of long, flat sheets of

steel that slide together to form a solid wall. These

temporary cofferdams are used to keep water out of

a work area.

J-A07041-15

[On July 27, 2012 Independent] filed this

action against [JD Fields] asserting that said sheet

piling supplied by [JD Fields] was defective, causing

[Independent] to incur additional labor and

equipment costs to install and remove the defective

material.

In February of 2012, [Independent] first

contacted [JD Fields] to obtain information about its

interlocking sheet piling products. [Independent]

maintains that at said time the purpose of their

project was explained to [JD Fields]; and based on

[Independent]’s needs, [JD Fields] suggested the

use of a specific product, Hoesch 1205k interlocking

sheet piling. The marketing materials distributed by

[JD Fields] represented that the product, among

other things, shall have adequate free play so that

the piles can be fitted into each other.

On February 28, 2012, [Independent] issued

Purchase Order 51359 (hereinafter “PO”). Said

order was a request for 143,985 pounds of Hoesch

1205k sheet piling to be delivered on site in

Pittsburgh for the price of $98,629.73. On March 8,

2012, [JD Fields] delivered 143,985 pounds of said

material to said site.

[Independent] maintains that as installation of

the sheet piling began, its employees immediately

experienced a defect in the interlocking mechanism.

Specifically, the interlocking mechanism did not

contain adequate free play to allow the sheet pilings

to be easily joined together. [Independent] further

maintained that its employees had substantial

experience and training with sheet piling as the

installers were members of the local Millwrights and

Pile Drivers Union. [Independent] asserted that the

contractors had never experienced sheet piling that

fit together so poorly. [Independent never paid the

invoice for the purchase price of the sheet piling.]

[Independent] claimed that the failure of the

sheet piling to conform to the requirements or to [JD

Fields’] published specifications constituted a breach

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of contract. [Independent] further claimed that the

sheet pilings[’] failure to conform to the assertions

made in the publication provided by [JD Fields], i.e.

the product could be easily joined, constituted a

breach of an express warranty.

…

This matter was initiated by a [c]omplaint filed

by [Independent] on July 27, 2012. Following a brief

round of preliminary objections challenging both the

venue and facts, [JD Fields] filed an [a]nswer, [n]ew

[m]atter and [c]ounterclaim on December 19, 2012

[for $104,547.51, the total amount of the purchase

price for the sheet piling it provided]. The case was

then listed for trial.

The parties were before [the trial court] in late

March of 2014, and after argument on [m]otions in

[l]imine were held, a three (3) day jury trial took

place. At the conclusion of said trial, a [v]erdict was

rendered in favor of [Independent] and against [JD

Fields] in the amount of $90,875.42 and a verdict

was entered in favor of [JD Fields] in its counter

claim [sic] in the amount of $52,273.76.[1] The

verdict was later molded by the [trial c]ourt to reflect

an award in favor of [Independent] in the amount of

$38,601.66.

[JD Fields] timely filed a [m]otion for [p]ost-

[t]rial [r]elief. Following argument on said [m]otion

for [p]ost-[t]rial [r]elief, [the trial court] entered an

[o]rder on July 1, 2014 denying [the] same.

Judgment on the [v]erdict was entered on August 4,

2014, in the amount of $38,601.66. [JD Fields] filed

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1

The jury’s award of $90,875.42 in favor of Independent was based on the

invoices it submitted regarding the extra equipment, labor, and two

subcontractor costs associated with the sheet piling provided by JD Fields.

As we explain infra, $52,273.76 was 50% of the JD Fields’ invoice, rounded

upward to the nearest penny.

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a [timely n]otice of [a]ppeal to [this Court] on

August 28, 2014.[2]

On September 3, 2014, [the trial c]ourt

directed … JD Fields to file a [c]oncise [s]tatement of

matters [c]omplained of on [a]ppeal pursuant to

Pennsylvania Rule of Appellate Procedure … 1925(b).

Said statement was timely filed on September 24,

2014, placing this matter properly before [this Court.

The trial court filed its Rule 1925(a) opinion on

October 29, 2014].

Trial Court Opinion, 10/29/14, at 1-4 (internal quotation marks omitted).

On appeal, JD Fields presents the following five issues for our review.

1. Whether expert testimony on the performance

and characteristics of steel construction

material known as sheet piling and the time it

should take to install such sheet piling, the

knowledge of which requires special skill and

training, was necessary to prove a construction

delay claim based on an alleged defect?

2. Whether the trial court erred in admitting

opinion testimony about the existence of a

“defect” in the sheet piling and the amount of

time that would “normally” be required to

install sheet piling where such testimony was

provided by fact witnesses who had not been

qualified or offered as expert witnesses?

3. Whether the evidence admitted at trial would

not allow any reasonable jury to determine

that [JD Fields] breached a contract for the

sale of sheet piling to [Independent] in its

provision of the sheet piling or that

[Independent] established any damages with

reasonable certainty?

____________________________________________

2

Independent has not filed a cross-appeal.

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4. Whether, as a matter of law and upon

consideration of the evidence at trial, it was

error for the trial court to deny JD Fields’

motion to set aside the verdict and grant

additur to the verdict in its favor because, in

the absence of any evidence disputing the

amount of JD Fields’ damages, no two

reasonable minds could disagree that the

outcome should have been in favor of JD Fields

for the amount of its invoice and JD Fields

established with reasonable certainty that it

had suffered damages in a sum certain amount

of $104,547.51?

5. Whether the trial court erred in failing to grant

remittitur because the damages award to

[Independent], granting it in essence more

than its damages claim, was neither fair nor

reasonable and instead was excessive,

arbitrary, and not supported by the evidence,

and shocked the conscience so as to suggest a

mistake?

JD Fields’ Brief at 5-6.

We begin by noting our standards of review regarding judgment

notwithstanding the verdict (JNOV) and the awarding of a new trial.

In reviewing a trial court’s decision whether or

not to grant judgment in favor of one of the parties,

we must consider the evidence, together with all

favorable inferences drawn therefrom, in a light most

favorable to the verdict winner. Our standard[s] of

review when considering motions for a directed

verdict and judgment notwithstanding the verdict are

identical. We will reverse a trial court’s grant or

denial of a judgment notwithstanding the verdict

only when we find an abuse of discretion or an error

of law that controlled the outcome of the case.

Further, the standard of review for an appellate court

is the same as that for a trial court.

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There are two bases upon which a judgment

N.O.V. can be entered; one, the movant is entitled to

judgment as a matter of law and/or two, the

evidence is such that no two reasonable minds could

disagree that the outcome should have been

rendered in favor of the movant. With the first, the

court reviews the record and concludes that, even

with all factual inferences decided adverse to the

movant, the law nonetheless requires a verdict in his

favor. Whereas with the second, the court reviews

the evidentiary record and concludes that the

evidence was such that a verdict for the movant was

beyond peradventure.

Reott v. Asia Trend, Inc., 7 A.3d 830, 835 (Pa. Super. 2010) (citation

omitted), affirmed, 55 A.3d 1088 (Pa. 2012).

Our review of the trial court’s denial of a new

trial is limited to determining whether the trial court

acted capriciously, abused its discretion, or

committed an error of law that controlled the

outcome of the case. In making this determination,

we must consider whether, viewing the evidence in

the light most favorable to the verdict winner, a new

trial would produce a different verdict.

Consequently, if there is any support in the record

for the trial court’s decision to deny a new trial, that

decision must be affirmed.

Joseph v. Scranton Times, L.P., 89 A.3d 251, 260 (Pa. Super. 2014)

(citations omitted).

We elect to address JD Fields’ third issue first, as a ruling in its favor

on this issue would entitle it to judgment. In its third issue, JD Fields avers

that it is entitled to JNOV because “the evidence was, as a matter of law,

insufficient to create an issue of fact for the jury, and JD Fields was entitled

to a verdict in its favor.” JD Fields’ Brief at 34. Specifically, JD Fields argues

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that the evidence is insufficient to establish that it breached its contract with

Independent and that Independent established its damages with reasonable

certainty. Id. at 34-35.

Generally, “[t]o successfully maintain a cause of action for breach of

contract the plaintiff must establish: (1) the existence of a contract,

including its essential terms, (2) a breach of a duty imposed by the contract,

and (3) resultant damages.” Albert v. Erie Ins. Exch., 65 A.3d 923, 928

(Pa. Super. 2013) (citation omitted). Furthermore, with regard to damages,

our Supreme Court has noted the following.

Where one party to a contract without any legal

justification, breaches the contract, the other party is

entitled to recover, unless the contract provided

otherwise, whatever damages he suffered, 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.

Helpin v. Trustees of Univ. of Pa., 10 A.3d 267, 270 (Pa. 2010).

Additionally, “Pennsylvania law has never required proof of such damages to

a mathematical certainty. This Court has long held that the evidence

necessary to establish damages is no more than ‘the best evidence

available.’” Hatwood v. Hosp. of the Univ. of Pa., 55 A.3d 1229, 1237

(Pa. Super. 2012) (internal citations omitted), appeal denied, 65 A.3d 414

(Pa. 2013). As an appellate court, “[i]f the verdict bears a reasonable

resemblance to the damages proven, we will not upset it merely because we

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might have awarded different damages.” Newman Dev. Grp. of

Pottstown, LLC v. Genuardi’s Family Mkt., Inc., 98 A.3d 645, 659-660

(Pa. Super. 2014) (en banc) (citation omitted).

As the trial court notes, “[t]his cause of action was merely to

determine whether the product supplied by [JD Fields] met the

representations made by [JD Fields], i.e., that the sheet piling supplied by

[JD Fields] allowed for adequate ‘free play’ as promised.”3 Trial Court

Opinion, 10/29/14, at 7-8. In this case, Independent elicited testimony on

direct examination from Jack Cargoni, an operating engineer and owner of

Independent, that the bulk of the sheet piling had “free play” issues after

delivery.

Q: You heard [other witnesses] describe the

problems that they experienced with the sheet

piling?

A: That’s correct.

Q: And did you observe them taking these steps

to try to fit the sheet piling together?

A: I was involved with it. 100 percent throughout

the whole ordeal.

…

Q: What did you do once those problems started?

____________________________________________

3

Independent refers to this as an “express warranty” regarding the sheet

piling. Independent’s Brief at 12. JD Fields does not challenge this

characterization. See generally JD Fields’ Reply Brief at 2 n.1.

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A: Whenever -- as soon as we started having

problems, big problems as far as the sheets

not going in at all, we had minor problems to

start with and then we started having major

problems, and that’s when I got ahold of the

office to get ahold of Geno Shore to get ahold

of JD Fields and have a representative sent out

immediately.

Q: Now, we said there are 85 pairs. Did every

one of these 85 pairs not fit together?

A: No. There was some that mated up. Some

that mated up.

Q: Slid together?

A: Slid together. And there was some that just

didn’t slide together at all.

Q: As a percentage of the whole, how many of

them did you have -- how many sheets did you

have problems with?

A: 75 percent of them.

N.T., 3/25/14, at 172-173. JD Fields’ own witness, Dan Abbondanza, who

was called to the site after Independent reported the problems,

acknowledged that 25% of the sheet piling had this issue. Id. at 266.

As to damages, Cargnoni testified that he drew up an invoice for the

extra costs associated with the sheet piling provided by JD Fields, including

additional labor costs. N.T., 3/25/14, at 184. Cargnoni divided such costs

into four distinct categories, equipment, labor, and two contractor-

subcontractor categories. Id. at 185. Cargnoni explained to the jury how

each line was calculated in detail. Id. at 185-189. Cargnoni sent the

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invoice to JD Fields, but it did not pay said invoice. Id. at 189. Cargnoni

later adjusted the labor costs downward in a second invoice. Id. at 191-

192. These invoices were admitted without objection. Id. at 184, 235.

Although JD Fields points out inconsistencies in Independent’s

witnesses’ testimony regarding damages, these inconsistencies do not

render Independent’s evidence insufficient. See DeArmitt v. N.Y. Life Ins.

Co., 73 A.3d 578, 593 (Pa. Super. 2013) (stating with regard to calculation

of damages, “[a]lthough the factfinder may not render a verdict based on

sheer conjecture or guesswork, it may use a measure of speculation in

estimating damages[]”) (citation omitted); Epstein v. Saul Ewing, LLP, 7

A.3d 303, 314 (Pa. Super. 2010) (stating, “[w]here the evidence of damages

presented by the plaintiff is contested by the defendant, the jury in a civil

action does not have to accept the plaintiff’s measure of damages because

the jury is free to accept all, part, or none of the evidence[]”) (citation

omitted), appeal denied, 20 A.3d 1212 (Pa. 2011). Based on these

considerations, we conclude there is evidence in the record for the jury to

conclude that Independent proved breach and damages by a preponderance

of the evidence. See Reott, supra. As a result, JD Fields is not entitled to

relief on this issue.

We next address JD Fields’ first and second issues together, as they

are interrelated. In its first issue, JD Fields argues that Independent was

required to provide expert testimony to establish “the purported cause of

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any installation issues with the [s]heet [p]iling.” JD Fields’ Brief at 25. JD

Fields further avers that Independent failed to “present expert testimony to

allow the jury to conclude that any such installation issues caused [it] to

suffer a delay, and thus damages, on the River Crossing Project.” Id. In its

second issue, JD Fields argues that Independent’s witnesses who testified to

the subject matters of “the performance and characteristics of sheet piling,

[the] installation time for sheet piling, and whether the [s]heet [p]iling had

adequate free play[]”offered only inadmissible lay opinion evidence. Id. at

30. Our standard of review with regard to evidentiary issues at trial is well

settled.

When we review a trial court ruling on

admission of evidence, we must acknowledge that

decisions on admissibility are within the sound

discretion of the trial court and will not be

overturned absent an abuse of discretion or

misapplication of law. In addition, for a ruling on

evidence to constitute reversible error, it must have

been harmful or prejudicial to the complaining party.

An abuse of discretion is not merely an error of

judgment, but if in reaching a conclusion the law is

overridden or misapplied, or the judgment exercised

is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will, as shown by the evidence

or the record, discretion is abused.

Phillips v. Lock, 86 A.3d 906, 920 (Pa. Super. 2014) (citation omitted).

Pennsylvania Rules of Evidence 701 and 702 describe the interplay

between lay witnesses and expert witnesses.

Rule 701. Opinion Testimony by Lay Witnesses

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If a witness is not testifying as an expert, testimony

in the form of an opinion is limited to one that is:

(a) rationally based on the witness’s perception;

(b) helpful to clearly understanding the witness’s

testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other

specialized knowledge within the scope of Rule 702.

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by

knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge is beyond that possessed by

the average layperson;

(b) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in

issue; and

(c) the expert’s methodology is generally accepted in

the relevant field.

Pa.R.E. 701, 702.

JD Fields points to several cases in which the courts of this

Commonwealth have held expert testimony was required to assist the trier

of fact. In Electron Energy Corp. v. Short, 597 A.2d 175 (Pa. Super.

1991), affirmed, 618 A.2d 395 (Pa. 1993), this Court held that expert

testimony was required in a breach of contract action in order to show that

there was a breach of “a duty to design a [heating and cooling] system up to

reasonable professional standards[.]” Id. at 180. JD Fields also points to

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the Commonwealth Court’s decision in Tennis v. Fedorwicz, 592 A.2d 116

(Pa. Cmwlth. 1991) in which it concluded that expert testimony was

“indispensable for proving that the road was negligently designed.”4 Id. at

117.

In this case, Independent presented the testimony of Arthur

Klajnowski. Before Klajnowski began his testimony, the trial court cautioned

counsel that Klajnowski was not to give any expert opinion, but rather “[h]e

can only talk about facts, what he actually saw on the job.” N.T., 3/24/14,

at 48. Klajnowski had been employed with the local pile drivers’ union for

27 years. Id. at 50. Klajnowski worked on this particular job with

Independent and he explained the difficulties he faced working with this

sheet piling on this specific job.

Q: Can you describe for the jury what the problem

is that you experienced on this job?

A: The sheet piling would not go together. It

would not run. Meaning -- by run, I mean

when you drop it, it is supposed to go down to

the bottom. It wasn’t doing that.

Q: When you drop it, describe for the jury when

you drop it.

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4

We note that “[t]his Court is not bound by decisions of the Commonwealth

Court. However, such decisions provide persuasive authority, and we may

turn to our colleagues on the Commonwealth Court for guidance when

appropriate.” Petow v. Warehime, 996 A.2d 1083, 1088 n.1 (Pa. Super.

2010) (citations omitted), appeal denied, 12 A.3d 371 (Pa. 2010).

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A: With the crane. You have the crane and let

them come down on it. They are supposed to

slide together.

…

Q: What did you have to do to deal with the

difficulty in sliding these pieces together?

A: We actually had to get an air tugger and burn

holes in the bottom of the sheet, hook them to

the template and drag them down.

Q: What is an air tugger?

A: It is actually like a chain pull. It is a chain with

hooks on either end powered by air that turns

and pulls the sheet piling down.

…

Q: Did you do anything else? Did you have to do

anything else besides use an air tugger?

A: Yes. They actually greased the sheets first and

then they decided to use soap on them to try

to get them to slide.

Q: Did that help?

A: Not really.

Q: Did you try anything else other using an air

tugger and greasing or soaping the channels?

A: We used a vibratory hammer that you’re

supposed to use to drive the sheets down once

they are in. We used -- looks like a hairpin.

That’s what we call it. It is just weight to get

on top of the sheet and try to push it with that.

Id. at 55-59.

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Independent also called Michael Pape, its foreman on this project, to

testify to the sheet piling and the problems that he encountered.

Q: Tell us what you understand sheet piling to be.

A: It is an interlocking system for whatever kind

of work, shoring or dirt jobs, cofferdams or

whatever need be.

…

Q: Tell us very succinctly the problem with the

sheet piling on this project.

A: The sheet piling wouldn’t go together.

Q: What solutions did you try to employ to solve

that?

A: We cut the tips of the sheet piling that was

already instituted in the river. We cut a notch

out in the sheet piling that we are going to

bring into the river, we do cut a notch out to

try to get it going and it catch the notch where

you already have a couple inches going in

there and we would soap it up with a lubricant

to try to get it to slide together.

Q: Are you on site when you removed the sheet

piling in this case?

A: Yes.

Q: Were there any problems removing the sheet

piling from the river?

A: Yes.

Q: What were the problems?

A: We couldn’t get them -- some of them would

pull apart and we had trouble. You go to pull

one out and you would be pulling three or four

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sheets at one time to get them out, so we got

-- instead of trying to separate them and get

them out, we would swing them off the river

and lay them on the ground and try to pull

them apart with an excavator so we could get

them on the truck and load them up.

Q: Had you had to use excavators to pull them

apart on a prior sheet piling project that you

worked on?

A: No. We slid them apart.

Id. at 72, 89-90.

Here, the trial court concluded that expert testimony was not required

in this case based on the following.

[The trial court] heard nothing prior to or

during the trial to convince the [trial] court that the

jury would need the assistance of an expert with the

concept of two pieces of sheet metal not fitting

together. Nor did [the trial court] hear any

testimony from either side that sounded too highly

technical or beyond a layperson’s understanding.

The case sub judice was not a professional

malpractice action or complex products liability

matter involving complex language or techniques

necessitating opinions proffered by an expert, nor

does the instant case involve a design defect of a

technical nature. This cause of action was merely to

determine whether the product supplied by [JD

Fields] met the representations made by [JD Fields],

i.e., that the sheet piling supplied by [JD Fields]

allowed for adequate “free play” as promised.

Trial Court Opinion, 10/29/14, at 7-8.

After careful review, we agree with the trial court’s reasoning and

conclusion. Unlike Electron Energy Corp. and Tennis there was no

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requirement that the jury needed to find that JD Fields breached a duty of

care or that the sheet piling had a design defect. As Independent argues, it

does not matter why the sheet piling did not fit together as promised, just

that it did not do so. Independent put forth factual evidence in the form of

testimony from Klajnowski and Pape as to what occurred with this particular

shipment of sheet piling on this specific construction job. This did not cross

into the realm of impermissible expert opinion under Rule 702, nor was it

improper lay opinion under Rule 701. Rather, Klajnowski and Pape testified

to what they observed personally regarding this product on this job, as a

matter of fact, not as a matter of opinion.5 Cargnoni testified that he

expected to install 15 to 20 piles in an eight-hour shift, this answer was

based on his experience, and was his estimate for this project. See

generally N.T., 3/24/14, at 162. Klajnowski testified, based on his

experience, that one could put 158 sheets in per day. Id. at 63. Based on

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5

JD Fields highlights one instance where Klajnowski stated that the sheet

piling was “supposed to fit together[.]” N.T., 3/24/14, at 55. However, the

record reveals that JD Fields immediately objected, the trial court sustained

JD Fields’ objection, and JD Fields requested no further relief from the trial

court. Id. at 56. As the trial court ruled in JD Fields’ favor on this specific

instance, it cannot complain about it on appeal. See generally Coffey v.

Minwax Co., Inc., 764 A.2d 616, 622 (Pa. Super. 2000). In its brief, JD

Fields complains that Klajnowski gave expert testimony when he stated that

other factors did not cause the problems they had with the sheet piling. JD

Fields’ Brief at 32; N.T., 3/24/14, at 61. However, we note JD Fields did not

object to this question, thus waiving the issue on appeal. See id.

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these considerations, we conclude the trial court did not abuse its discretion

with regard to these issues. See Phillips, supra.

Finally, we elect to address JD Fields’ fourth and fifth issues together,

as they pertain to the damage awards in this case. In its fourth issue, JD

Fields argues that the jury should have awarded damages on its

counterclaim in the amount of $104,547.51. JD Fields’ Brief at 38. It

argues that because the parties stipulated to the existence of the contract,

which contained a purchase price of $104,547.51, and Independent “offered

no evidence to discount the amount of damages cause[d] to JD Fields by

[Independent’s] refusal to pay the invoice[,]” JD Fields should have been

awarded the invoice amount in full. Id. at 38-39. JD Fields also argues that

it is entitled to prejudgment interest at the rate of six-percent per annum

beginning on April 8, 2012. Id. at 41. Finally, in its fifth issue, JD Fields

avers that it is entitled to remittitur because the jury’s $90,875.42 award to

Independent on its claim “was neither fair nor reasonable.” JD Fields’ Brief

at 42. JD Fields further argues that Independent “was more than made

whole for its purported and unsupported damages and put into a position

better than if the contract between the parties had been performed.” Id.

As noted above, “[w]here an appellant’s claim arises from a challenge

to the jury’s determination of damages, our review is highly circumspect.”

Helpin, supra at 601 n.9.

The duty of assessing damages is within the province

of the fact-finder and should not be interfered with

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unless it clearly appears that the amount awarded

resulted from partiality, caprice, prejudice,

corruption or some other improper influence.

Generally, a verdict will not be disturbed merely on

account of the smallness of the damages awarded or

because the reviewing court would have awarded

more. To support the granting of a new trial for

inadequacy, the injustice of the verdict should stand

forth like a beacon. So long as the verdict bears a

reasonable resemblance to the damages proved, it is

not the function of the court to substitute its

judgment for that of the jury.

Epstein, supra (citation omitted). In addition, we note our standard of

review of a denial of remittitur is whether or not the trial court abused its

discretion. Paliometros v. Loyola, 932 A.2d 128, 134 (Pa. Super. 2007)

(internal citations omitted).

In this case, the parties appear to agree that the purchase price for

the sheet piling was $104,547.51. JD Fields’ Brief at 38; Independent’s Brief

at 13. As noted above, Independent’s witness testified that 75% of the

sheet piling that was delivered did not fit together. N.T., 3/25/14, at 173.

JD Fields’ witness, Abbondanza, testified that 25% of the sheet piling had

this issue. Id. at 266. The mean and median between these two

percentages is 50%. The jury awarded JD Fields $52,273.76 on its

counterclaim, which is 50% of the purchase price agreed to by the parties,

rounded upward to the nearest penny. See generally JD Fields’ Brief at 38;

Independent’s Brief at 13. As the trial court noted, “the jury simply

reconciled the testimony to accept the fact that half of said sheets would not

allow for adequate ‘free play’ and awarded their damage figure accordingly.”

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Trial Court Opinion, 10/29/14, at 8. As there is a basis for the jury’s

decision, as an appellate court, we will not substitute our judgment for the

jury or grant additur because this Court might “have awarded more.”

Epstein, supra. In addition, we further conclude that remittitur is not

warranted. The jury’s verdict in this case found that Independent was 50%

liable for the purchase price of the sheet piling that Independent received.

Therefore, Independent did not receive a windfall as JD Fields argues, and

the jury’s verdict does not shock the conscience. We hence conclude that

the trial court did not err or abuse its discretion when it denied additur or

remittitur in this case. See id.; Paliometros, supra.

Turning to the prejudgment interest portion of its argument, JD Fields

relies on Section 354 of the Restatement (Second) of Contracts in support of

its argument.6 JD Fields argues that it is entitled as of right to prejudgment

interest under Section 354(1) of the Restatement, as the issue in this case

____________________________________________

6

Independent argues that JD Fields waived this issue “by failing to raise the

issue at trial, and by failing to request an instruction to the jury on the same

during the charging conference.” Independent’s Brief at 14. However, this

Court has held that “even if the issue of prejudgment interest was not

submitted to the jury, the trial court may mold the verdict to include it.”

Verner v. Shaffer, 500 A.2d 479, 482 (Pa. Super. 1984); see also

McMahon v. Caravan Refrigerated Cargo, Inc., 594 A.2d 349, 352 (Pa.

Super. 1991) (distinguishing Verner and concluding the prejudgment

interest issue was waived because, unlike Verner, “the issue of pre-

judgment interest was not raised in appellee’s post-trial motions[]”). JD

Fields raised the issue of prejudgment interest in its post-trial motion. JD

Fields’ Post-Trial Motion, 4/4/14, at ¶ 24. As a result, JD Fields has not

waived this issue.

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was a sum certain. JD Fields’ Brief at 41. The restatement provides as

follows.

§ 354 Interest as Damages

(1) If the breach consists of a failure to pay a

definite sum in money or to render a performance

with fixed or ascertainable monetary value, interest

is recoverable from the time for performance on the

amount due less all deductions to which the party in

breach is entitled.

…

Restatement (Second) of Contracts § 354(1) (1981). Furthermore, our

Supreme Court has explained the issue of prejudgment interest in the

following terms.

In adopting Section 354 [of the Restatement

(Second)], we stated:

For over a century it has been the law of this

Commonwealth that the right to interest upon

money owing upon contract is a legal right.

That right to interest begins at the time

payment is withheld after it has been the duty

of the debtor to make such payment.

Fernandez[v. Levin, 548 A.2d 1191, 1193 (Pa.

1988)].

With regard to prejudgment interest, we have

explained, “[i]nterest has been defined ‘to be a

compensation allowed to the creditor for delay of

payment by the debtor,’ and is said to be impliedly

due ‘whenever a liquidated sum of money is unjustly

withheld.’” School Dist. of City of Carbondale v.

Fidelity & Deposit Co. of Maryland, 346 Pa. 491,

492, 31 A.2d 279, 280 (1943) (citations omitted).

However, “as prerequisites to running of

prejudgment interest, the debt must have been

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liquidated with some degree of certainty and the

duty to pay it must have become fixed.” Id. at 493,

31 A.2d at 280; Restatement (Second) of Contracts

§ 354(1) (“If the breach consists of a failure to pay a

definite sum of money or to render a performance

with fixed or ascertainable monetary value, interest

is recoverable.”). Thus, even 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.

Furthermore, as is the case with an award of

contractual interest, an award of prejudgment

interest under Section 354(1) is not subject to a

court’s discretion. See id.; Dox Planks[of Ne. Pa.

v. Ohio Farmers Ins. Co., 621 A.2d 132, 136 (Pa.

Super. 1993)] (citing Fernandez, and holding a

successful plaintiff in a contract case is entitled to

prejudgment interest at the statutory rate as a

matter of right); Peterson v. Crown Fin. Corp.,

661 F.2d 287, 293 (3rd Cir. 1981) (applying

Pennsylvania law and holding that a “court is thus

obligated to award ‘simple interest at the statutory

legal rate’ only in those circumstances in which the

plaintiff proves that the defendant breached a

promise to pay ‘a definite sum of money’”).

TruServ Corp. v. Morgan’s Tool & Supply Co., Inc., 39 A.3d 253, 263-

264 (Pa. 2012) (emphasis in original; footnotes omitted).

Independent counters that JD Fields’ reading of Section 354 is flawed

and offers the following illustration from the comment to Section 354.

9. A contracts to build a bungalow for B for $30,000.

After completion but before B has paid the final

$6,000, B occupies the bungalow but refuses to pay

the balance because the workmanship and materials

are unsatisfactory. A sues B and recovers only

$4,000 on the ground that B’s claim entitles him to

compensation in the amount of $2,000. The sum of

$4,000 was not sufficiently definite to give A a right

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to interest on it. The allowance of interest is within

the discretion of the court. The fact that A was

himself in breach will be considered.

Independent’s Brief at 15, quoting Restatement (Second) of Contracts

§ 354, cmt.

In our view, this illustration is much like the instant case. Here, JD

Fields agreed to provide sheet piling to Independent for $104,547.51. After

receiving said sheet metal, Independent refused to pay the invoice because

it viewed the sheet metal as unsatisfactory. JD Fields filed a counterclaim

against Independent seeking the amount due under the original contract. JD

Fields was awarded 50% of their original contract or $52,273.76. Following

the Restatement, we agree with Independent that this amount “was not

sufficiently definite to give [JD Fields] a right to interest on it.” Restatement

(Second) of Contracts § 354, cmt. As a result, JD Fields did not have a legal

right to prejudgment interests under Section 354(1), as there was not a sum

certain in this case. See id.; TruServ Corp., supra at 264 n.12. Based on

these considerations, we conclude JD Fields is not entitled to relief on its

fourth or fifth issues.

Based on the foregoing, we conclude all of JD Fields’ issues on appeal

are devoid of merit. Accordingly, the trial court’s August 4, 2014 judgment

entered in favor of Independent is affirmed.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/26/2015

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