Koller Concrete, Inc. v. Tube City IMS, LLC

J-A09019-15

2015 PA Super 92

KOLLER CONCRETE, INC., : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

TUBE CITY IMS, LLC, :

:

Appellant : No. 2028 EDA 2014

Appeal from the Judgment entered June 25, 2014,

Court of Common Pleas, Northampton County,

Civil Division at No. C-0048-CV-2011-00629

BEFORE: BOWES, DONOHUE and STABILE, JJ.

OPINION BY DONOHUE, J.: FILED APRIL 21, 2015

Tube City, LLC (“Tube City”) appeals from the judgment entered in the

amount of $34,7138.39 for Appellee, Koller Concrete, Inc. (“Koller”).

Following our review, we affirm.

The basic facts underlying this appeal are as follows. Koller produces

concrete for contractors to use in commercial and residential projects. 1

Koller blends concrete for its customers to meet the specific requirements of

each particular job. In 1995, Koller began to purchase a particular cement,

Waycem, from Tube City for use in its concrete mixtures. Koller found that

Waycem added strength to its concrete mixtures and therefore favored the

product. This product appealed to Koller because Waycem was made with

ground granulated blast-furnace slag, which contributed to this increased

1

Concrete is a mixture of multiple components, one of which is cement.

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strength. Tube City always represented that Waycem was made with

ground granulated blast-furnace slag and that it met the specifications of the

industry’s standard for ground granulated blast-furnace slag, C989.

In early 2006, Koller began to receive complaints on a number of

projects, all of which used concrete that contained Waycem.2 William

Lambert (“Lambert”), a long-time employee and technician for Koller,

responded to these complaints by visiting the jobsites to inspect the

concrete. He observed severe cracking and other defects that he had not

previously seen occur with Koller concrete. In February 2007, Lambert had

samples of the concrete taken from one project, the Tobyhanna Army Depot

project, for petrographic analysis.3 According to Koller, the analyses of

these core samples revealed that they contained no ground granulated blast-

furnace slag. Koller eventually became aware that the plant from which

Tube City received the components to create Waycem closed on February

17, 2006. Based on all of this information, Koller came to suspect that in

2006, Tube City sold it Waycem that was made with air-cooled slag instead

of ground granulated blast-furnace slag. Lambert confronted Tube City with

these suspicions. Tube City admitted that it had experimented internally

2

At issue in this appeal are five particular projects. Although Koller received

complaints about these projects at various times between March 2006 and

March 2009, Koller supplied the concrete for all of these projects in 2006.

3

In 2009, Koller also sent samples from the Simon project for petrographic

analysis. In both instances, the samples were taken by a method called

“coring,” in which cylinders were bored into the concrete at multiple points.

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with making Waycem with air-cooled slag, but denied selling any product

containing air-cooled slag.

On March 13, 2009, Koller filed a complaint against Tube City raising

claims of breach of contract, unjust enrichment, detrimental reliance, breach

of express warranties, breach of the implied warranty of merchantability,

breach of the implied warranty of fitness for particular purpose, fraud,

negligent misrepresentation, violations of the Unfair Trade Practices and

Consumer Protection Law (“UTPCPL”), and sought attorneys’ fees and

punitive damages. A jury trial commenced on February 10, 2014. At the

close of the evidence, the trial court granted Tube City’s motion for nonsuit

on Koller’s UTPCPL, attorneys’ fees and punitive damages claims. The jury

returned a verdict in Koller’s favor on the remaining counts and awarded it

damages in the amount of $347,138.19. Tube City filed timely post-trial

motions, seeking JNOV, a new trial, or remittitur on the amount of the

verdict. Following argument, the trial court denied these motions. This

appeal followed.4

Tube City presents the following issues for our review:

1. Whether the [trial] court erred in rendering

evidentiary rulings that resulted in bias to [Tube

City]?

4

The trial court did not author an opinion addressing the issues Tube City

raised on appeal, electing to rely on its opinion disposing of Tube City’s post-

trial motion. See Pennsylvania Rule of Appellate Procedure 1925(a)

Statement, 7/28/14.

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2. Whether the trial court erred in failing to enter a

directed verdict in favor of [Tube City] and failing

to strike [Koller’s] claims where [Koller] failed to

prove the required elements of its claims and

where a new trial is required in the interest of

justice?

3. Whether the trial court erred in precluding

disclosure of certain documents in [Koller’s]

expert’s file under the guise of the attorney[-

]client privilege?

Tube City’s Brief at 4.

Tube City first challenges multiple evidentiary rulings made by the trial

court both prior to and during trial. “[I]t is well settled that the admissibility

of evidence is a determination left to the sound discretion of the trial court,

and it will not be overturned absent an abuse of discretion or misapplication

of law.” Knowles v. Levan, 15 A.3d 504, 507 (Pa. Super. 2011) (quoting

Reott v. Asia Trend, Inc., 7 A.3d 830, 839 (Pa. Super. 2010)). For a

ruling on the admissibility of evidence to constitute reversible error, it must

have been harmful or prejudicial to the complaining party. Id.

Tube City begins by challenging the trial court’s denial of its motion to

exclude Koller’s core samples because Koller failed to establish a credible

and complete chain of custody. Tube City’s Brief at 26. The record reveals

that prior to trial, Tube City sought the exclusion of the core samples on this

basis. After hearing testimony, the trial court concluded that Koller had

provided sufficient evidence to establish a chain of custody and “determined

that any gaps in the chain were matters for the jury, going to the weight,

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and not the admissibility[,] of the evidence.” Trial Court Order, 6/25/14, at

5. We can find no abuse of discretion in this decision.

“To satisfy the requirement of authenticating or identifying an item of

evidence, the proponent must produce evidence sufficient to support a

finding that the item is what the proponent claims it is.” Pa.R.E. 901(a).

Tangible evidence is authenticated properly by the establishment, through

direct or circumstantial evidence, of a reasonable inference that the identity

and condition of the item remained unimpaired until it was presented at trial.

See Commonwealth v. Judge, 648 A.2d 1222, 1224 (Pa. Super. 1994).

One way of creating this inference is by establishing a chain of custody of

the item.

Chain of custody is circumstantial authentication that

accounts for the thereabouts of physical evidence

prior to trial. See Commonwealth v. Hudson, []

414 A.2d 1381 ([Pa.] 1980); [] Judge, [] 648 A.2d

[at] 1222 [] (chain of custody was adequate for

blood alcohol result). A truly complete chain of

custody is not necessary for the admission of

tangible evidence. Every individual who came in

contact with the evidence does not have to testify,

and every minor discrepancy does not have to be

explained. Commonwealth v. Snyder, [] 385 A.2d

588 ([Pa. Super.] 1978); Commonwealth v. Miller,

[] 371 A.2d 1362 ([Pa. Super.] 1977) (slight

misdescription on property receipt does not bar

admission). Every hypothetical possibility of

tampering does not have to be eliminated. Snyder,

[] 385 A.2d [at] 588. It is not necessary to prove the

sanctity of an exhibit beyond a moral certainty.

Commonwealth v. Herman, 431 A.2d 1019

(Pa.Super. 1981). Physical evidence can be admitted

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with gaps in the chain of custody. Commonwealth

v. Bolden, [] 406 A.2d 333 ([Pa.] 1979).

1A Pa. Admissibility of Evidence T4 (3d ed.)

At the hearing on Tube City’s motion, Lambert testified that on

February 27, 2007, he took six core samples from the Tobyhanna site with

the assistance of two technicians from Certified Testing Laboratories (“CTL”).

N.T., 2/10/14, at 23-25. The CTL technicians took the samples back to their

laboratory. Id. at 25. CTL tested two of the cores, sent two cores to the

Army Corps of Engineers, and gave two samples back to Lambert. Id. at

27. Lambert sent one of those cores to Grace Construction Products

(“Grace”) for petrographic analysis and kept the remaining core, which was

labeled “S6” in his office. Id. at 27-28. Approximately three years after S6

was created, Lambert had S6 cut in half and he gave half to Grace and half

to Koller’s expert, Dr. Ozol. Id. at 31. Between the day in 2007 when CTL

gave him S6 and the day in 2010 when Lambert had S6 halved, the sample

sat untouched in Lambert’s office. Id. at 31. Lambert also testified that he

took nine core samples from the Simon project in March 2009, and indicated

that he sent them directly to CTL. Id. at 37-38. CTL subsequently tested

some of the samples and issued a report detailing the results thereof. Id. at

40-41. CTL returned some of the Simon project samples to Lambert, who

then sent them to Grace and to Dr. Ozol. Id. at 41.

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Tube City argues that Lambert’s testimony did not establish an

adequate chain of custody of the core samples. Tube City’s Brief at 28-30.

Yet, in making its argument, Tube City concedes that physical evidence may

be admitted despite gaps in testimony establishing a chain of custody and

that gaps in a chain of custody go to the weight of the evidence, as opposed

to its admissibility. Tube City’s Brief at 28-29 (citing Commonwealth v.

Royster, 372 A.2d 1194 (Pa. 1977); Broadus v. Unemployment Comp.

Bd. of Review, 721 A.2d 70 (Pa. Commw. 1998)). Tube City posits that

the error here was that the testimony offered to establish the chain of

custody was not credible. Id. at 30. This argument cannot provide relief.

Credibility determinations are the sole province of the jury, and this Court,

as an appellate court, cannot disturb a jury’s credibility determinations.

Vattimo v. Eaborn Truck Serv., Inc., 777 A.2d 1163, 1165 (Pa. Super.

2001).

Tube City next challenges the trial court’s handling of its request to

strike Lambert’s testimony on the basis that he violated a sequestration

order. Tube City’s Brief at 30. As background, we note that prior to the

testimony of Koller’s owner, Dale Koller (“Mr. Koller”), Tube City moved for

Lambert’s sequestration because they were both fact witness. N.T.,

2/10/14, at 116. Koller’s counsel opposed the motion, arguing that

Lambert, although not the corporate designee, was important to Koller’s trial

strategy and he needed to be present. Id. at 116-17. The trial court

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granted Tube City’s motion and ordered Lambert to leave the courtroom for

Mr. Koller’s testimony. Id. at 117. Following a break in Mr. Koller’s

testimony, counsel for Tube City stated that he had observed Mr. Koller

speaking with Lambert during the break and requested that the trial court

exclude Lambert from testifying or give the jury an instruction indicating

that he violated the sequestration order. Id. at 142-43. At that point,

counsel for Koller asked the trial court to reconsider its sequestration ruling.

Id. at 147-49. After argument from the parties and testimony from Lambert

about what he and Koller discussed, the trial court ruled that although there

was a technical violation of the sequestration order, there was no “specific

prejudice” to Tube City. Id. at 159. It lifted the sequestration order and

further ruled that Lambert could testify “unimpeded” and that it would not

give a curative instruction regarding a sequestration violation to the jury.

Id.

Tube City now argues that the trial court erred in reversing its

sequestration order and failing to give a curative instruction to the jury.

Tube City’s Brief at 34-36. “[T]he decision to sequester witnesses is left to

the discretion of the trial judge and will be reversed only for an abuse of

discretion.” Commonwealth v. Counterman, 719 A.2d 284, 299 (Pa.

1998). “A request for sequestration of a witness or witnesses should be

specific and should be supported by some reason or reasons demonstrating

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that the interests of [j]ustice require it.” Commonwealth v. Kravitz, 161

A.2d 861, 870 n.7 (Pa. 1960).

Pennsylvania Rule of Evidence 615 governs sequestration of witnesses

and provides as follows:

At a party’s request the court may order witnesses

sequestered so that they cannot learn of other

witnesses' testimony. Or the court may do so on its

own. But this rule does not authorize sequestering:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a

natural person (including the Commonwealth) after

being designated as the party’s representative by its

attorney;

(c) a person whose presence a party shows to

be essential to presenting the party’s claim or

defense; or

(d) a person authorized by statute or rule to be

present.

Pa.R.E. 615 (emphasis added). Counsel for Koller informed the trial court

that Lambert was his “number one connection to the client” and that

Lambert was “integral to [his] ability to present the case.” N.T., 2/10/14,

at 153. In light of this representation by Koller’s counsel, we find no abuse

of discretion in the trial court’s determination that sequestration was not

authorized by Rule 615.5 Accordingly, we find no error in the trial court’s

5

As the trial court did not err in its decision to deny Tube City’s

sequestration request, there is no merit to Tube City’s additional complaint

that the trial court should have given a curative instruction indicating that

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decision to lift the sequestration order and refuse Tube City’s request for a

jury instruction.

Tube City next argues that the trial court erred in “allowing [Koller’s]

expert to testify without the requisite level of professional certainty.” Tube

City’s Brief at 36. Tube City does not present any argument relating to

whether Koller’s expert, Dr. Ozol, testified with the requisite level of

professional certainty.6 Rather, Tube City argues that (1) the trial court

failed to determine whether Dr. Ozol was qualified to testify and an expert;

(2) there was an inadequate factual basis for Dr. Ozol’s opinion; and (3) Dr.

Ozol did not testify as to causation; i.e., that Tube City’s product caused

Koller’s problems. Id. at 36, 39. Tube City did not include these issues in

its Pa.R.A.P. 1925(b) statement of matters complained of on appeal, and so

they have been waived. Lazarski v. Archdiocese of Philadelphia, 926

A.2d 459, 463 (Pa. Super. 2007), (holding that issue not raised in a

statement filed pursuant to Pa.R.A.P. 1925(b) is waived for purposes of

appeal); Pa.R.A.P. 1925(b)(4)(vii). Accordingly we cannot address them.

Lambert violated a sequestration order. We note for completeness,

however, that the trial court ruled that Tube City could cross-examine

Lambert as to his discussions with Mr. Koller about his testimony. N.T.,

2/10/14, at 160.

6

Dr. Ozol testified with regard to the petrographic analyses of the samples

taken from the Tobyhanna and Simon projects; more specifically, that these

samples did not contain ground granulated blast-furnace slag.

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In the fourth sub-argument to this issue, Tube City contends that the

trial court erred by permitting Lambert to provide expert testimony as to the

cause of the concrete’s failure. Tube City’s Brief at 42. Tube City identifies

five instances of this allegedly improper expert testimony. Id. In its post-

trial motion, however, Tube City identified only one instance of such

allegedly improper testimony, which it has not included in its brief on appeal.

Brief in Support of Post-Trial Relief, 5/1/14, at 24. It is axiomatic that an

appellant may not raise a claim for the first time on appeal. Mazlo v.

Kaufman, 793 A.2d 968, 969 (Pa. Super. 2002); Pa.R.A.P. 302. “Our

Supreme Court has frequently stressed the necessity of raising claims at the

earliest opportunity … so that alleged errors can be corrected promptly, thus

eliminating the possibility that an appellate court will be required to expend

time and energy reviewing claims on which no trial ruling has been made.”

Mazlo, 793 A.2d at 969. Because Tube City did not raise these allegations

of error before the trial court, we will not consider them now.

We now consider Tube City’s third issue, which also involves an

evidentiary ruling. When Dr. Ozol, Koller’s expert, took the stand to testify,

he took his file to the stand with him. During cross-examination, counsel for

Tube City asked to review his file. N.T., 2/14/14, at 53. Koller asserted the

right to first inspect the file to determine whether it contained any privileged

communications. Id. at 57. The trial court permitted this, and Koller

identified four documents: three emails from Koller’s counsel to Dr. Ozol

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and one memo from Lambert to Koller’s counsel discussing Tube City’s

expert report.7 Id. at 58-59. Koller sought to have these documents

excluded. The trial court reviewed the documents and agreed. Id. at 60. It

explained its reasoning as follows:

In determining that the documents were privileged,

the [c]ourt reviewed them and found them to be

excludable, some as communications between

counsel and the expert witness, and some as

communications between counsel and Mr. Lambert in

preparation for trial. N.T. Vol. VI, 58:8-60:9. As to

the communications between Mr. Lambert and

counsel, because Lambert is a representative of the

corporate plaintiff, there can be no question that

attorney-client privilege applies. As to the

communications between Dr. Ozol and counsel, we

point to the recent decision of the Pennsylvania

Supreme Court in Barrick v. Holy Spirit Hosp. of

Sisters of Christian Charity, [91 A.3d 680 (Pa.

2014)]. In Barrick, the Supreme Court of

Pennsylvania announced a bright-line rule precluding

discovery of communications between attorneys and

expert witnesses. Although Barrick was decided

subsequent to the trial of this matter, it was decided

purely on long-standing discovery rules. As such, it

is clear that this [c]ourt properly interpreted those

rules in withholding communications between

[Koller’s] counsel and [its] expert witness from

disclosure to [Tube City].

Trial Court Opinion, 6/25/14, at 16-17.

Presently, Tube City does not argue that the trial court erred in finding

that the attorney-client privilege applied to these documents. It argues only

7

One email had a laboratory’s analysis of the core samples attached; one

forwarded correspondence between Lambert and Koller’s counsel; and one

attached both a different analytical report and correspondence between

Koller’s counsel and Lambert about the report.

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that the attorney-client privilege was waived when Dr. Ozol took the stand

with his file. Tube City’s Brief at 59. Although Tube City raised an issue

regarding the trial court’s application of the attorney-client privilege in its

post-trial motion, it did not raise this basis for relief (i.e., that the privilege

was waived because Dr. Ozol took the stand with these documents) therein.

As such, it cannot raise it as a basis for relief now on appeal. See

Commonwealth v. Santiago, 980 A.2d 659, 666 n.6 (Pa. Super. 2009)

(“[A] new and different theory of relief may not be successfully advanced for

the first time on appeal.”); Nogowski v. Alemo-Hammad, 691 A.2d 950,

955 (Pa. Super. 1997) (“Failure to preserve issues in a post-trial motion

results in a waiver of that issue on appeal.”).8

We have reached Tube City’s last issue, in which it argues that the trial

court should have granted its post-trial motion because Koller “failed to

prove the elements of its claims and a new trial is required in the interest of

justice.” Tube City’s Brief at 43. Tube City separates its argument on this

issue into three subsections, which we address seriatim.

Tube City begins by arguing that the trial court should have entered

JNOV on Koller’s fraud and negligent misrepresentation claims because

8

Even if this issue had been properly preserved in Tube City’s post-trial

motion, we note that at trial, Tube City agreed to allow Dr. Ozol to remove

any attorney-client privileged communications from his file before Tube City

would inspect it. N.T., 2/14/14, at 59. In light of this concession, Tube City

could not now prevail on its argument that the attorney-client privilege was

waived because Dr. Ozol took the stand with these documents in his file.

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Koller failed to prove the elements of fraud by clear and convincing

evidence.9 Id. at 43.

The proper standard of review for an appellate court

when examining the lower court's refusal to grant a

judgment n.o.v. is whether, when reading the record

in the light most favorable to the verdict winner and

granting that party every favorable inference

therefrom, there was sufficient competent evidence

to sustain the verdict. Questions of credibility and

conflicts in the evidence are for the trial court to

resolve and the reviewing court should not reweigh

the evidence. Absent an abuse of discretion, the trial

court's determination will not be disturbed.

Ferrer v. Trustees of Univ. of Pennsylvania, 825 A.2d 591, 595 (Pa.

2002) (internal citations omitted).

JNOV is an extreme remedy, as the trial court “cannot lightly ignore

the findings of a duly selected jury.” Burton-Lister v. Siegel, Sivitz &

Lebed Associates, 798 A.2d 231, 236 (Pa. Super. 2002). A motion for

JNOV challenges the sufficiency of the evidence presented at trial. Rohm &

Haas Co. v. Cont'l Cas. Co., 732 A.2d 1236, 1248 (Pa. Super. 1999). As

9

Under this subsection, Tube City also argues that the trial court should

have struck these claims because they were barred by the statute of

limitations. Tube City’s Brief at 43. This argument does not relate to

whether Koller adequately established the elements of fraud or negligent

misrepresentation, but is a completely separate issue. Tube City did not

include an issue raising the statute of limitations in its statement of

questions involved, see Tube City’s Brief at 4, and so it has been waived.

Cobbs v. SEPTA, 985 A.2d 249, 256 (Pa. Super. 2009) (holding that issue

not explicitly raised in appellant’s statement of the questions involved is

waived); Pa.R.A.P. 2116(a) (“No question will be considered unless it is

stated in the statement of questions involved or is fairly suggested

thereby.”).

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such, JNOV is only proper where, when viewing the evidence in the light

most favorable to the verdict winner, the facts are so clear that reasonable

minds could not disagree that the verdict was improper. Burton-Lister,

798 A.2d at 236. “JNOV … may not be employed to invade the province of

the jury. … Thus, where the jury has been presented with conflicting

evidence, a motion for JNOV should be denied.” Rohm & Haas Co., 732

A.2d at 1248 (internal citations omitted).

Initially, we observe that Tube City presents no argument in support of

its claim that the trial court should have entered JNOV on the negligent

misrepresentation count, and so we will not consider it.10 See Owens v.

Mazzei, 847 A.2d 700, 705-06 (Pa. Super. 2004) (holding that the Superior

Court will not address an issue presented in the statement of questions

involved where no corresponding analysis is included in the brief).

With regard to fraud, Tube City argues that JNOV was appropriate

because Koller failed to establish that Tube City sold it a product that did not

contain ground granulated blast-furnace slag. Tube City’s Brief at 45. Tube

City points to portions of Koller’s witnesses’ testimony that it believes

favored Tube City and alleges that Koller’s witnesses were not credible. Id.

10

It is fairly obvious, however, that a plaintiff is not required to prove fraud

in order to establish negligent misrepresentation. See Milliken v. Jacono,

60 A.3d 133, 141 (Pa. Super. 2012) (stating the elements of negligent

misrepresentation). Thus, even if Tube City had not waived this issue for

failure to develop an argument in support thereof, it would not have been

entitled to relief on this claim.

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This argument does not attack the sufficiency of Koller’s evidence, but rather

the weight the jury should have ascribed to Koller’s evidence. Tube City is

asking this Court to “invade the province of the jury,” and that is not a basis

for JNOV. Rohm & Haas Co., 732 A.2d at 1248.

Next, Tube City argues that the trial court should have struck Koller’s

breach of contract claim because Koller failed to present sufficient evidence

to establish a causal connection between Tube City’s product and the

damages alleged at trial. Tube City’s Brief at 48-49. Yet again, Tube City

basis this argument on allegations that Koller’s evidence was incredible and

that the jury should have believed other evidence that was more favorable

to Tube City. Id. at 49-50.11 These arguments challenge the jury’s

credibility determinations and findings of fact, not the sufficiency of the

evidence. This argument is therefore misplaced and affords Tube City no

relief.

Tube City further argues that the trial court erred in refusing its

request to limit damages to the amounts claimed for the Tobyhanna and

Simon projects, on the basis that Koller only produced core sample evidence

as to these two projects. Id. Tube City argues that a new trial on damages

is appropriate because of this error.

11

Specifically, Tube City again points to perceived flaws in the chain of

custody of a Tobyhanna core sample as well as testimony that errors in the

mixing of the cement (as opposed to the composition of Waycem) could

have led to the failure of the concrete. Tube City’s Brief at 49-51.

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The grant of a new trial is a matter within the

discretion of the trial court. If the verdict bears a

reasonable resemblance to the proven damages, it is

not the function of the court to substitute its

judgment for the jury’s. Nevertheless, where the

jury’s verdict is so contrary to the evidence as to

“shock one's sense of justice” a new trial should be

awarded.

Rettger v. UPMC Shadyside, 991 A.2d 915, 934 (Pa. Super. 2010)

(internal citations omitted).

The trial court explained its rejection of Tube City’s request as follows:

[Koller] alleged damages in the amount of

[$355,000]. [It was] awarded damages totaling

[$347,138.39]. Pretrial, [Tube City] made an oral

motion to limit [Koller’s] recovery to damages

incurred on the [] Simon and Tobyhanna projects,

where core samples were taken and evidence was

presented as to the absence of [ground granulated

blast-furnace slag]. N.T. Vol. I, 6:16-23. Upon

consideration, the [c]ourt denied the motion,

allowing all of the evidence on damages to go to the

jury for their consideration. N.T. Vol. I, 19:1-7.

[Koller] presented testimonial and

documentary evidence that it spent [$277,389.69]

on the allegedly defective Waycem, which it then

used in certain projects, incurring damages. In this

regard, Koller presented testimony and photographs

as to cracking on what they referred to as the

“Lusitania Liberty” project, pursuant to which they

incurred costs amounting to [$2,200] for repairs.

N.T., Vol. II, 57:18-66:23. Likewise, [Koller]

presented testimonial evidence of cracking on the

“Big Creek” project, where [it] incurred costs of

[$6,438]. N.T., Vol. II 66:25-71:9. As to the Grant

Homes project, Mr. Lambert presented photographic

evidence of cracking, and testified that no expense

was incurred to make repairs on that project. [N.T.]

Vol. II, 71:11-75:7. [Koller] also presented evidence

of [$35,000] expended to settle a lawsuit arising out

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of the problems at Tobyhanna, as well as the

expense of [$24,948.77] in legal fees associated

with that litigation. N.T. Vol II, 83:20-85:20, 87:7-

88:19. On the [] Simon project, evidence was

presented that [Koller] incurred costs in the amount

of [$9,600]. N.T. [Vol. II] 88:21-92:4.

This is not a case where damages were

awarded in the absence of evidence. Rather, [Koller]

offered direct evidence as to some of [its] alleged

injuries, and circumstantial evidence as to others.

While [Koller] did not take core samples of every

project, the evidence presented was clearly sufficient

for the jury to award damages upwards of

[$355,000] and [the] award fell below that amount.

Accordingly, the verdict does not shock the

conscious, and shall be permitted to stand.

Trial Court Opinion, 6/25/14, at 11-12.

We can find no abuse of discretion in the trial court’s ruling. Tube

City’s true complaint is that the award is based in part on the circumstantial

evidence and inferences drawn by the jury, but it provides us with no

authority that this is impermissible. Koller presented expert testimony that

the Waycem used in two projects did not contain the ground granulated

blast-furnace slag, and testimony that three additional projects that used

Waycem from the same defective batch also failed. The jury was free to

accept this evidence as credible and conclude that the Waycem used in all

five of these projects caused them to fail, and therefore, caused the

damages. As the amount of the verdict bears a reasonable relationship to

the evidence, there was no basis to disturb it. Rettger, 991 A.2d at 934.

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J-A09019-15

Lastly, Tube City argues that the trial court erred in denying its motion

for a mistrial. It argues that it was entitled to a mistrial because the trial

court made “multiple evidentiary errors” and because “the damages award is

… too speculative or uncertain.” Tube City’s Brief at 56-57. We have

considered and rejected Tube City’s claims of evidentiary errors and its claim

regarding the appropriateness of the verdict. Accordingly, Tube City’s

argument fails on its premise.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015

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