C.E. Pontz Sons, Inc. v. Purcell Const. Co.

J-S11018-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

C.E. PONTZ SONS, INC. IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

PURCELL CONSTRUCTION COMPANY

Appellant No. 1269 MDA 2014

Appeal from the Judgment Entered August 26, 2014

In the Court of Common Pleas of Lancaster County

Civil Division at No(s): 11-03550

BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED SEPTEMBER 01, 2015

Purcell Construction Company (“Purcell”) appeals from the judgment

entered on August 26, 2014, in the Court of Common Pleas of Lancaster

County. Following a bench trial, the court entered judgment in favor of C.E.

Pontz Sons, Inc. (“C.E. Pontz”) in the amount of $11,247.10, plus interest

and costs. On appeal, Purcell raises the following three arguments: (1) did

the trial court err in finding the contract was modified orally; (2) did the

court err in failing to find C.E. Pontz breached the contract; and (3) did the

court err in failing to award attorney’s fees to Purcell. Based on the

following, we affirm.

The trial court made the following findings of fact:

1. On or about June 9, 2006, [C.E. Pontz] and [Purcell]

entered into a Subcontract Agreement regarding

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landscaping work at Twin Valley High School, Elverson,

Pennsylvania.

2. The original contract price for the subcontract was

$3,500 with [C.E. Pontz] to provide seeding and lawn

restoration work.

3. The provisions of the contract were clear that all change

orders must be in writing, approved by [Purcell], and, in

addition, approval for payment must be given by the

Owner (Twin Valley High School) and Architect (Schrader

Group Architecture). These change orders were to be

submitted prior to work done.

4. Mrs. Ober, project coordinator for [C.E. Pontz], and Mr.

Kashatus, site director for [Purcell], had many

discussions regarding work done on site in addition to the

work included in the $3,500 contract price.

5. Much work appears to have been done by [C.E. Pontz]

above that value, yet [C.E. Pontz] failed to submit any

change orders until well after they completed their

portion of the job; months later submitting a letter

request for additional payments.

6. [C.E. Pontz] received all information regarding the pre-

bid specifications well in advance of the bid, and the

grade of the land was clearly visible from even a cursory

glance at the site.

7. [C.E. Pontz] clearly did work beyond the scope of the

initial contract, and [Purcell] admits same.

8. [Purcell] submitted [C.E. Pontz]’s claim to the Owner and

Architect allowing for an additional payment to be

approved of $13,455.56. Said payment was made in full

to [C.E. Pontz] per the AIA Application for Payment

Forms.

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9. [C.E. Pontz] then submitted a payment application on or

about January 18, 2008, marked “Final,” which showed a

balance due under the Agreement of zero (0) dollars.[1]

10. [Purcell] received no additional communications or formal

claims for any amounts due under the Agreement or any

added charge order requests from [C.E. Pontz] for nearly

two years and nine months after the “Final” payment and

zero balance mentioned hereinabove.

Trial Court Opinion, 8/28/2013, at 1-2.

C.E. Pontz filed a complaint on March 30, 2011, and amended

complaint on May 13, 2011, raising causes of action for breach of contract

and unjust enrichment. Purcell filed an answer on July 22, 2011. The

matter went to arbitration, and on May 12, 2012, an award was entered in

for favor of C.E. Pontz in the amount of $28,611.77.

Purcell then appealed the arbitration award. A one-day bench trial

took place on April 29, 2013. Subsequently, on August 28, 2013, the court

entered the following order:

AND NOW this 28th day of August 2013, upon

consideration of the testimony and evidence presented at trial

and in written closing arguments, findings of facts, and

conclusions of law, as submitted by the parties, it is hereby

ORDERED AND DECREED that judgment is entered for [C.E.

Pontz] in the additional amount of $11,247.10 plus interest and

costs. There is no award for attorneys’ fees for either party in

this matter.

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1

The zero balance referenced in the trial court’s findings of fact was on the

application for payment of the $16,955.56 amount that Purcell submitted to

the school district. See Defendant’s Exhibit 2, Application and Certificate for

Payment, 1/18/2006.

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Order, 8/28/2013. In support of its conclusion, the court made the following

conclusions of law:

[C.E. Pontz] clearly failed to file timely and appropriate

work change orders and [Purcell] clearly observed without

objection added work being done by [C.E. Pontz] at the work site

for which [Purcell] could not have known would be approved for

payment by Owner or Architect. Under 42 Pa.C.S. § 2503(9),

attorney’s fees may be awarded to a party when the opposing

party has commenced the matter in bad faith. Although the

Court finds both Ms. Ober and Mr. Kashatus could have, no

doubt, supervised better, the Court finds no bad faith on the part

of the actual parties in this case in bringing the action. Because

the Court finds no breach of contract or breach of duty of good

faith in bringing the action, no attorney’s fees are awarded.

[Purcell] did not waive the non-written modification

requirements; however, “when an owner requests a builder to do

extra work, promises to pay for it and watches it performed

knowing that it is not authorized in writing, he cannot refuse to

pay on the ground that there was no written change order.”

(Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550,

244 A.2d 10, 16 (Pa. 1968) (citing Focht v. Rosenbaum, 176 Pa.

14, 34 A. 1001 (1876)). The original contract between the

parties included 50,000 square feet of fine grading, soil

supplements, and seeding, in exchange for which [C.E. Pontz]

would receive $3,500.00. The contract between [C.E. Pontz]

and [Purcell] allowed for changes only if in writing and approved

in advance of the work done.

[Purcell]’s owner clearly conceded that [C.E. Pontz] did an

extensive amount of work beyond the written contract.

[Purcell]’s project manager, on site almost daily, admitted, “I

had authorized CE Pontz to perform these additional items.”

This included 78,000 square feet of erosion control, dumping

loads and removal of rock, additional seeding, soil prep and

fertilizer for more than the 50,000 square feet, and costs

associated with sod and stone removal at the Fitness Building

entrance and chain link fence area.

[Purcell]’s project manager further emphasized that he did

not realize the work “costs would be this much.” Rather than

accepting the figures presented by [C.E. Pontz], he required

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more specific detail in his letter dated September 18, 2007. His

letter did not indicate that he had received acceptance or

rejection from the school district or architect, but that he needed

information in order to pass the costs onto the School District or

others.

The October 23, 2007 letter from [C.E. Pontz]’s project

manager outlines those specific areas as requested by [Purcell]’s

project manager. Based on this information and [Purcell]’s

response to [C.E. Pontz]’s letter, Areas 1, 2, 4, and 5 were

approved and paid by [Purcell] to [C.E. Pontz].

Issues of Area 3, the softball fields, front slope, and extras

were denied but purportedly sent on to the School District for

approval though at a reduced square footage from [C.E. Pontz]’s

demand. Because the work in Area 3 was clearly done at

request of [Purcell], for a total of $8093.00, there was an oral

modification of the requirement to have the change order in

advance. (Universal Builders, Inc. v. Moon Motor Lodge, Inc.,

430 Pa. 550, 244 A.2d 10, 16 (Pa. 1968) (citing Focht v.

Rosenbaum, 176 Pa. 14, 34 A. 1001 (1876)). In addition to the

work in Area 3, the two ball fields and the sod were completed at

the request of [Purcell], totaling $1372.00 and $1782.10

respectively. These costs are clearly owed to [C.E. Pontz] by

[Purcell]. There is a significant difference in the square footage

of seeding (164,000 square feet according to [C.E. Pontz] and

75,940 square feet according to [Purcell]); however, [C.E.

Pontz] provided no further information regarding the difference.

Because [C.E. Pontz] was paid for the 50,000 square feet in the

contract plus an additional 20,340 square feet, the Court will

grant no further sum for that extra.

Trial Court Opinion, 8/28/2013, at 3-5 (footnotes omitted).

Purcell filed a timely notice of appeal on September 26, 2013. On

November 13, 2013, the trial court filed an opinion sur appeal, adopting as

dispositive its August 28, 2013, opinion. The court also stated: “[Purcell]

filed no post-verdict motions. Any issues not raised in their post-verdict

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motion are waived. See Pa.R.C.P. 227.1(b)(2).” Opinion Sur Appeal,

11/13/2013.

Purcell did not file any post-verdict motions and on November 20,

2013, this Court entered an order, dismissing the appeal and instructed the

trial court to allow post-trial motions to be filed nunc pro tunc. Purcell filed a

post-trial motion on November 27, 2013, requesting relief based on the

following reasons:

1. The trial court’s non-jury verdict against [Purcell] upon

consideration of the testimony and evidence presented at trial

and in written closing arguments, findings of facts, and

conclusions of law, as submitted by the parties, is against the

weight of the evidence.

2. The trial court’s verdict in favor of [C.E. Pontz] is not

supported by substantial evidence.

3. The verdict is, in form and substance, inconsistent with the

law of the Commonwealth of Pennsylvania.

Purcell’s Motion for Post-Trial Relief Nunc Pro Tunc Pursuant to Pa.R.C.P.

227.1, 11/27/2013, at unnumbered 4-5. C.E. Pontz filed a response on

December 18, 2013.

On July 15, 2014, the trial court entered an order, denying Purcell’s

post-trial motion. Purcell filed a notice of appeal on July 28, 2014, 2 and a

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2

On July 20, 2014, the trial court ordered Purcell to file a concise statement

of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Purcell

filed a concise statement on August 18, 2014. The trial court issued an

opinion sur appeal pursuant to Pa.R.A.P. 1925(a) on August 28, 2014, again

adopting its August 28, 2013, opinion.

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praecipe to enter judgment on August 26, 2014, as required by Pennsylvania

Rule of Appellate Procedure 301, because the trial court’s disposition of the

its post-verdict motion did not constitute an appealable order. That same

day, the trial court entered judgment in favor of C.E. Pontz and against

Purcell, on the decision of the court dated August 28, 2013. Consequently,

we will treat Purcell’s appeal as if it was filed after the entry of judgment,

which is the appealable order. See Pa.R.A.P. 905(a) (providing that “[a]

notice of appeal filed after the announcement of a determination but before

the entry of an appealable order shall be treated as filed after such entry

and on the day thereof”); McEwing v. Lititz Mut. Ins. Co., 77 A.3d 639,

645 (Pa. Super. 2013) (treating parties’ appeals from the verdict as having

been taken from the final judgment when judgment was entered after the

appeals were filed).

We begin with our well-settled standard of review:

Our review in a non-jury case is limited to “whether the findings

of the trial court are supported by competent evidence and

whether the trial court committed error in the application of

law.” We must grant the court’s findings of fact the same weight

and effect as the verdict of a jury and, accordingly, may disturb

the non-jury verdict only if the court’s findings are unsupported

by competent evidence or the court committed legal error that

affected the outcome of the trial. It is not the role of an

appellate court to pass on the credibility of witnesses; hence we

will not substitute our judgment for that of the factfinder. Thus,

the test we apply is “not whether we would have reached the

same result on the evidence presented, but rather, after due

consideration of the evidence which the trial court found

credible, whether the trial court could have reasonably reached

its conclusion.”

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Stephan v. Waldron Elec. Heating & Cooling LLC, 100 A.3d 660, 665

(Pa. Super. 2014) (internal citations omitted).

In its first issue, Purcell argues the trial court erred in finding the

parties’ contract was modified orally, thereby “waiving the requirement of

written change orders and consequently binding Purcell to pay for the

additional amounts charged for work performed by [C.E.] Pontz outside the

[s]cope of [w]ork.” Purcell’s Brief at 10. Specifically, Purcell states that

while a written agreement can be modified by a subsequent oral agreement,

it must be based upon valid consideration and proven by clear and

convincing evidence. Id. However, Purcell avers that where a public

contract is involved and there is a procedure regarding work changes and

extras, “claims for extras will not be allowed unless these provisions have

been strictly followed.” Id. at 12, citing Scott Township School Dist.

Authority v. Branna Constr. Corp., 185 A.2d 320 (Pa. 1962). Purcell

contends C.E. Pontz did not submit any written change order requests for

the alleged additional work completed prior to the completion of the project

on August 20, 2007. Id. at 13. Purcell points out that C.E. Pontz submitted

a change order on or about October 23, 2007, and Purcell did amend the

contract based on the requested change order. Id. at 13.

Purcell’s first issue fails for several reasons. First, we find Purcell’s

argument is waived to the extent it asserts that because a “public contract”

was involved, a stricter procedure regarding additional work is to be applied

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pursuant to Scott. A review of the record, including the trial transcript,

Purcell’s proposed findings of fact, conclusions of law, and closing argument,

as well as its motion for post-trial relief nunc pro tunc, reveals Purcell did not

raise this contention before the trial court. Pennsylvania Rule of Appellate

Procedure 302 mandates: “Issues not raised in the lower court are waived

and cannot be raised for the first time on appeal.” Pa.R.A.P. 302(a).

Accordingly, because Purcell failed to raise this specific claim before the trial

court, we conclude it is waived.

Second, we find Purcell’s reliance on Scott is misplaced because

Purcell fails to explain how the parties’ written agreement qualifies as a

“public” contract when both entities are private companies. In Scott, the

contract was between the school district and the contractor for the

construction of an elementary school. Here, while the work is being

completed at a high school, the contract is between two private companies.

The school district is not a party to the contract at issue. Moreover, C.E.

Pontz was required to give notice of any additional work to Purcell, not to

the school district. Therefore, Purcell has not demonstrated Scott is

controlling in the present matter.3

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3

Furthermore, we note our sister court has strayed away from the stricter

standard as set forth in Scott. See James Corporation v. North

Allegheny School District, 938 A.2d 474, 486-87 (Pa. Commw. 2007)

(declining to require “strict and narrow application of the [contract’s] notice

requirements” where such application “would be out of tune with the

(Footnote Continued Next Page)

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Lastly, to the extent Purcell argues generally the trial court erred in

finding the contract was modified orally, we are guided by the following:

Because contract interpretation is a question of law, this Court is

not bound by the trial court’s interpretation. Our standard of

review over questions of law is de novo and to the extent

necessary, the scope of our review is plenary as the appellate

court may review the entire record in making its decision.

However, we are bound by the trial court's credibility

determinations.

Keystone Dedicated Logistics, LLC v. JGB Enterprises, Inc., 77 A.3d 1,

6 (Pa. Super. 2013), quoting Ruby v. Abington Memorial Hospital, 50

A.3d 128, 132 (Pa. Super. 2012), appeal denied, 68 A.3d 909 (Pa. 2013).

Moreover,

[a] written contract which is not for the sale of goods may be

modified orally, even when the written contract provides that

modifications may only be made in writing. Universal

Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 244

A.2d 10 (1968). An agreement that prohibits non-written

modification may be modified by subsequent oral agreement if

the parties’ conduct clearly shows the intent to waive the

requirement that the amendments be made in writing. Accu-

Weather v. Prospect Communications, 435 Pa.Super. 93,

644 A.2d 1251 (1994). An oral contract modifying a prior

written contract, however, must be proved by clear, precise and

convincing evidence. Pellegrene v. Luther, 403 Pa. 212, 169

A.2d 298 (1961).

_______________________

(Footnote Continued)

language and purpose of the notice provisions” and where the “government

is quite aware of the operative facts,” and by finding the contractor gave

constructive notice, and the school district suffered no prejudice); E. Coast

Paving & Sealcoating, Inc. v. N. Allegheny Sch. Dist., 111 A.3d 220

(Pa. Commw. 2015) (same). While we are not bound by the decisions of the

Commonwealth Court, these decisions are insightful. See Commonwealth

v. Thomas, 814 A.2d 754, 759 n.2 (Pa. Super. 2002).

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Somerset Community Hospital v. Allan B. Mitchell & Associates, Inc.,

685 A.2d 141, 146 (Pa. Super. 1996).

Here, the record reveals the following: The original contract between

Purcell and C.E. Pontz included 50,000 square feet of fine grading, soil

supplements, and seeding, in exchange for which C.E. Ponz would receive

$3,500.00. The contract also provided, in relevant part, as follows: “This

Subcontractor shall perform no additional work without written approval

from PURCELL CONSTRUCTION COMPANY. Costs for additional work will not

be paid by PURCELL CONSTRUCTION COMPANY without signed change

orders.” Subcontract Agreement Between Contractor & Subcontractor,

6/9/2006, at 3.

At trial, Ober, the project coordinator for C.E. Pontz, testified she

spoke with Kashatus, the project manager for Purcell, regarding the

additional work that needed to be completed due to problems that arose

during the project at issue. Specifically, she stated:

[Ober]: Okay. I talked to [Kashatus] and we said -- or I said in

order to get this done in a fairly reasonable time, we could either

do a change order and – which would take it out another week

or two, because until we figure out how much it’s gonna cost,

until we get it to the office, until we get it to their office and they

get back to us, in the meantime we pull equipment off the site

and then have to bring it back, I said we could do it that way, I

said, but you know, you’re looking at another week or so.

…

[C.E. Pontz’s counsel]: As a result of your conversation with

[Kashatus], what did you do next?

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[Ober]: Well, we went ahead and did the seeding with the

stipulation that it would be a change order at some time in the

future with the idea of another -- in other words, you have an

area here that needs to be fixed up and done and at that time I

said, well, we’ll do it, see what it comes to, we’ll submit a

change order for that particular area and so on.

[C.E. Pontz’s counsel]: Is this an uncommon practice?

[Ober]: Not really. Not when they’re trying to get work done.

N.T., 4/29/2013, at 16-17.4 Ober also indicated that Kashatus would walk

around with her at the site, observing the work being completed, and never

told her that C.E. Pontz should stop doing the work. Id. at 20-22.

However, William Purcell, the owner of Purcell, testified it was never

brought to his attention that C.E. Pontz was doing additional work, including

erosion removal, that was outside the scope of the contract, but he admitted

that he did see them moving rocks. Id. at 135-137.

The project was completed in August of 2007, and it included 78,000

square feet of erosion control, dumping loads and removal of rock, additional

seeding, soil prep and fertilizer for more than the 50,000 square feet, and

costs associated with sod and stone removal at the Fitness Building entrance

and chain link fence area.5 An invoice was sent to Purcell on August 24,

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4

However, Ober also testified that, to her knowledge, she did not know if

anyone from C.E. Pontz ever submitted a written change order request after

certain areas were finished. Id. at 27-28.

5

See Trial Court Opinion, 8/28/2013, at 3-4.

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2007, indicating that the project cost approximately $49,791.84. Id. at 51-

52.

Purcell responded with a letter to C.E. Pontz, dated September 18,

2007, in which Kashatus stated, “Please understand I had authorized CE

Pontz to perform these additional items, however, I never realized the costs

would be this much!!!” Exhibit 5, Letter from Kashatus to Kapp, 9/18/2007,

at 2. Although Kashatus did not explicitly reject C.E. Pontz’s assessment of

additional costs, he made the following request, “Please provide all back-up

information requested and forward to our Office as soon as possible. Time is

of the essence because many of the costs for the items you performed are

additional work that needs to be passed on to Twin Valley School District

and/or Others.” Id.

In an October 23, 2007 letter to Kashatus from Ober, C.E. Pontz

complied with Kashatus’ request, outlining the additional costs by including a

breakdown of cost per area regarding Area #1, Area #2, Area #3, Area #4,

Area #5, Softball Field (first time), Softball Field (second time), Front Slope,

and extras. See Plaintiff’s Exhibit 3, Letter from Ober to Kashatus,

10/23/2007.

The following day, Purcell approved certain changes, which amounted

to $13,455.56, for a sum total of $16,955.56. See Exhibit 4, Letter from

Kashatus to Ober, 10/24/2007. Areas 1, 2, 4, and 5 were approved and

paid by Purcell. Id. Issues concerning Area 3, the softball fields, front

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slope, and extras were denied but purportedly submitted to the school

district for approval. Id.6

Viewing the evidence in a light most favorable to C.E. Pontz as verdict

winner, there is clear, precise, and convincing evidence that the parties’

conduct clearly demonstrated the intent to waive the requirement that

additional work requests be made in writing. Purcell, via Kashatus’ actions

and words, authorized and permitted C.E. Pontz to perform the additional

work without submitting a written change order before beginning the tasks.

This finding is supported by the fact that Purcell did pay for a portion of the

additional work performed, without ever receiving a written change order. 7

Accordingly, we conclude the court did not err in finding Purcell and C.E.

Pontz orally modified their contract, effectively waiving the no-written

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6

At trial, William Purcell testified, “I felt that there was some legitimate

additional work that [C.E. Pontz] performed over and above the $16,000

that [the school district] approved.” N.T., 4/29/2013, at 147. When asked

how much he thought C.E. Pontz was due in addition to the $16,000 that

was already paid, he said, “Quite truthfully, I would have gone for all of it

but [the school district] denied all of it. [The school district] said 16,000 is

all that they’re going to approve.” Id. at 148.

7

Moreover, based on William Purcell’s testimony, it appears Purcell would

have paid for the remainder of the work if the school district had provided

Purcell with the funding.

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modification clause of the parties’ written contract.8 Therefore, Purcell’s first

claim fails.

In its second issue, Purcell claims the trial court erred in finding C.E.

Pontz did not breach the contract. Purcell states the parties’ contract

requires that requested damages must be made promptly and consistent

with “the Contract Documents (i.e. the AIA contract between the School and

Purcell).” Purcell’s Brief at 15. Furthermore, Purcell indicates, “The Contract

Documents state the claims must be made within twenty-one (21) days after

occurrence of the event giving rise to such claim or within twenty-one (21)

days after the [claimant] first recognizes the condition giving rise to the

Claim, whichever is later.” Id. Purcell states C.E. Pontz brought its “claim,”

as in a lawsuit, against Purcell two years and nine months after the final

payment was made. Id.

Additionally, Purcell alleges C.E. Pontz was negligent in not properly

reviewing the plans and other documents provided by Purcell, which resulted

in a significant underestimation between the amount provided by C.E. Pontz

as its bid for the project and the costs that were actually incurred. Id. at

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8

See Universal Builders, supra (finding an owner cannot refuse to pay

on the ground that there was no written amendment to the parties’ contract

stating that the additional work was authorized under the contract where (1)

he requests the contractor complete the additional work, (2) he promises to

pay for such extra work, and (3) he watches the work being performed

knowing that it is not authorized in writing).

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16. Moreover, Purcell states C.E. Pontz did not attempt to act in a timely

manner by arguing:

The record is clear to demonstrate and support [C.E. Pontz]

breached the Contract by: (i) failing to properly submit a written

change order request and instead arbitrarily and capriciously

submitting an invoice for fourteen (14) times the Contract

amount set forth in the Contract; and (ii) failing to promptly

make a formal written claim for damages after the final payment

application was submitted to and paid by Purcell; thereby

purposefully breaching its duty of good faith and fair dealing in

its performance of the Contract.

Id. at 17. Purcell concludes C.E. Pontz was in violation of the contract and

should not have been permitted to seek any relief while it “always acted

pursuant to the Contract and is entitled to receive compensation as a result”

of C.E. Pontz’s lawsuit. Id. at 18.

The provisions of the contract that Purcell relies upon are as follows:

… the Parties also agree that the Subcontractor shall:

…

4. Make all claims for extras, for extensions of time and for

damage for delays or otherwise, promptly to the Contractor

consistent with the Contract Documents.

…

10a. Not enter into a separate understanding or agreement of

any kind the Subcontractor and the Owner and/or its Architect or

Agents relative to any original or extra work contemplated by

this Agreement unless the same is first approved in writing by

the Contractor.

Subcontract Agreement Between Contractor & Subcontractor, 6/9/2006, at

7; see also Purcell’s Brief at 14-15.

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Like Purcell’s first issue, this breach of contract argument fails for

several reasons. First, Purcell attempts to conflate “claims for extras” with

filing a lawsuit in order to argue that C.E. Pontz did not submit its request

for additional costs in a timely manner. However, the language of Paragraph

4 is clear that “claims for extras” does not equate to filing a complaint.

Moreover, C.E. Pontz did file its claims for extras in a timely manner where

the record demonstrated the project was completed in August of 2007, and

C.E. Pontz sent an invoice to Purcell on August 24, 2007, which included the

additional costs.

Second, Purcell fails to specifically point out where in the record the

21-day time limit rule is provided for in the Contract Documents. Rather, it

merely references an “AIA contract between the School and Purcell.”

Purcell’s Brief at 15. We note that where a party fails to properly develop its

argument, with proper citation to the record, the party has waived the claim.

See Pa.R.A.P. 2119(e).9 Furthermore, Purcell has failed to explain how a

contract between the school and itself applies to a third-party, C.E. Pontz,

that is not a party to that contract. Accordingly, Purcell has failed to

demonstrate the court erred in finding C.E. Pontz did not breach the contract

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9

See also Commonwealth v. LaCava, 666 A.2d 221, 234-235 (Pa. 1995)

(failure to identify where in the record alleged prejudicial comments were

made resulted in waiver).

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with respect to its duty of good faith and fair dealing. Therefore, its second

issue fails.

In its final argument, Purcell asserts the trial court erred in failing to

award attorney’s fees to Purcell. Purcell’s Brief at 19. Purcell states: “Given

the Lower Court erred in failing to find [C.E. Pontz] breached the Contract, it

is clear that had this error not been committed the Lower Court would have

found the breach; thus, allowing Purcell to receive an award for attorney’s

fees.” Id. Moreover, Purcell contends the parties’ contract allows it to

collect legal fees in the event of a breach of the contract terms by C.E.

Pontz. Purcell again avers its prior arguments that C.E. Pontz acted in bad

faith and breached the contract by:

(i) failing to properly submit a written change order request prior

to performing any additional work; (ii) and failing to assert a

claim for damages in a reasonable time and thereby causing

[Purcell] to have to defend itself in the litigation phase and in

this appeal and incur attorney’s fees as a result of [C.E. Pontz]’s

breach of the Contract terms.

Id. at 19-20. Additionally, Purcell states C.E. Pontz acted in bad faith “when

it presented an invoice to Purcell for an amount fourteen (14) times” the

amount of the original contract. Id. at 20.

“The general rule within this Commonwealth is that each side is

responsible for the payment of its own costs and counsel fees absent bad

faith or vexatious conduct.” McMullen v. Kutz, 985 A.2d 769, 775 (Pa.

2009), quoting Lucchino v. Commonwealth, 809 A.2d 264, 267 (Pa.

2002). “The American Rule states that a litigant cannot recover counsel fees

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from an adverse party unless there is express statutory authorization, a

clear agreement of the parties or some other established exception.”

Mosaica Academy Charter School v. Com. Dept. of Educ., 813 A.2d

813, 822 (Pa. 2002). “When construing agreements involving clear and

unambiguous terms, this Court need only examine the writing itself to give

effect to the parties understanding.” Osial v. Cook, 803 A.2d 209, 213 (Pa.

Super. 2002). See also 42 Pa.C.S. § 2503(9) (“The following participants

shall be entitled to a reasonable counsel fee as part of the taxable costs of

the matter … (9) Any participant who is awarded counsel fees because the

conduct of another party in commencing the matter or otherwise was

arbitrary, vexatious or in bad faith.”).

Because Purcell’s argument is based on its earlier assertions that C.E.

Pontz breached the contract, we can address this issue in a cursory manner.

As indicated above, the trial court found that because there was no breach

of contract or breach of duty of good faith in bringing the action on C.E.

Pontz’s part, no attorney’s fees should be awarded. Trial Court Opinion,

8/28/2013, at 3. Based on our disposition with respect to Purcell’s first two

arguments, and our agreement that there was no breach of contract or fair

dealing, Purcell cannot succeed in its claim. Accordingly, we conclude the

court did not err in failing to award attorney’s fees to Purcell. Therefore,

Purcell’s final issue is without merit.

Judgment affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 9/1/2015

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