International Management Consultants v. Sea-z

J-A13011-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

INTERNATIONAL MANAGEMENT IN THE SUPERIOR COURT OF

CONSULTANTS, INC. PENNSYLVANIA

Appellee

v.

SEA-Z, INC.

Appellant No. 704 EDA 2016

Appeal from the Order February 8, 2016

In the Court of Common Pleas of Montgomery County

Civil Division at No(s): 2011-24556

BEFORE: LAZARUS, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.: Filed August 4, 2017

Sea-Z, Inc. (“Sea-Z”) appeals from the order granting Appellee’s,

International Management Consultants, Inc. (“IMC”), post-trial motion to

mold a jury verdict to include interest, attorneys’ fees and expenses under

the Contractor and Subcontractor Payment Act (“CASPA”).1 After careful

review, we affirm in part, reverse in part and remand.

On April 6, 2010, IMC entered into an agreement (“contract”) with

Sea-Z to provide materials and labor to complete renovations and additions

to Sea-Z’s King of Prussia, Pennsylvania, warehouse facility and office

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*

Former Justice specially assigned to the Superior Court.

1

73 P.S. §§ 501-516.

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building. The contract price was a lump sum of $1,509,824.00. Under the

contract, Sea-Z agreed to pay IMC in-progress payments based on written

“application of payment” as the work progressed. Sea-Z was entitled to

deduct 10% of the amount approved for payment to be held as “retainage”

until final payment was due.

The contract required IMC to achieve “substantial completion” 2 within

208 calendar days from the date work commenced. Here, work commenced

in June 2010 after IMC received the permit. Substantial completion was

delayed. IMC and Sea-Z each disagree as to which party is responsible for

the contract delay. IMC contends that substantial completion occurred on or

around March 17, 2011; Sea-Z contends that IMC abandoned the project

prior to achieving substantial completion.

On August 26, 2011, IMC filed a complaint against Sea-Z for breach of

contract, CASPA violations, and unjust enrichment, seeking to recover the

contract balance due on the project. IMC calculated the balance owed under

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2

Substantial completion is defined under the contract as:

[T]he stage in the work when the work or designated portions

thereof is sufficiently complete in accordance with the contract

documents so that the owner can occupy or utilize the work for

its intended purpose.

A201 General Conditions, §9.8.1.

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the contract at $118,923.70,3 which represented the total of two unpaid

invoices it submitted to Sea-Z in February and April 2011.4 On October 6,

2011, Sea-Z filed an answer, new matter and counterclaim for breach of

contract, contractual liquidated damages,5 and attorneys’ fees, interest, and

penalties, alleging that it had a contractual right to withhold payment as a

result of IMC’s “failure to perform and/or complete the work” in accordance

with the parties’ contract.6 See Sea-Z Answer, New Matter & Counterclaim,

10/6/11, at 14. In its answer, Sea-Z averred that the parties’ original

contract sum was increased to $1,571,756.00 “based []on mutually agreed

upon change orders to the Contract,” and that Sea-Z “has paid IMC

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3

IMC later stated in its answer to Sea-Z’s counterclaim that the balance

owed under the parties’ contract was $123,897.70, based on the fact that

the contract sum was later increased from $1,509,824.00 to $1,575,631.00

by mutually agreed change orders.

4

According to IMC, it submitted invoices to Sea-Z on February 25, 2011, in

the amount of $75,797.13, and on April 25, 2011, in the amount of

$43,126.57. IMC Complaint, 8/26/11, at ¶¶ 8-10.

5

Sea-Z sought liquidated damages pursuant to the parties contract, for

IMC’s failure to achieve substantial compliance in a timely manner, citing the

parties’ contract to substantiate its entitlement to over $50,000, plus post-

judgment interest. In coming to its calculation of liquidated damages, Sea-Z

computed the damages at $500.00/day for days 1-30 after substantial

completion date (SCD); $1,000.00/day for days 31-60 after SCD;

$1,500.00/day for days 61-90 after SCD; and $2,000.00/day for 91 days

after SCD.

6

Specifically, the counterclaim alleged that the incomplete work consisted of

54 items. Moreover, Sea-Z also claimed that IMC’s work did not conform to

the contract with regard to 11 items.

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$1,451,751.00, leaving a contract balance of $120,005.00.” Id. at ¶¶ 10-

11. Moreover, Sea-Z averred that the cost to complete IMC’s unfinished

work and to correct non-conforming work will exceed the unpaid contract

balance. Id. at ¶ 16.

From November 2-5, 2015, a trial was held before the Honorable

Carolyn Tornetta Carluccio. After deliberating, the jury returned the

following verdict:

 Sea-Z breached its contract with IMC;

 Sea-Z did not have a good faith basis under CASPA to

withhold payment from IMC; and

 IMC breached its contract with Sea-Z (on Sea-Z’s

counterclaim).

Jury Verdict, 11/6/15, at 1-2. The jury awarded IMC $124,280.95 in

damages and Sea-Z $58,000.00 in damages.

On November 13, 2015, IMC filed post-trial motions to mold the

verdict to include statutory interest, penalties, and attorneys’ fees and

expenses under sections 505(d), 509(d) and 512(a) of CASPA, respectively.

On November 20, 2015, Sea-Z filed a cross-motion for post-trial relief

seeking vacation of the jury’s finding that it lacked good faith in response to

interrogatory #2 of the verdict slip, claiming that the response was against

the weight of the evidence.

On February 8, 2016, the trial court granted IMC’s post-trial motions

and molded the verdict to $404,036.89, which now included $65,204.88 in

statutory interest, $65,204.88 in penalties, and $149,346.18 in attorneys’

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fees and expenses under CASPA. On February 11, 2016, the court entered

judgment on the verdict in the amount of $404,036.89 in favor of IMC and in

the amount of $58,000 for Sea-Z. On February 19, 2016, Sea-Z filed a

timely notice of appeal from the trial court’s February 8, 2016 order. Sea-Z

raises the following issues on appeal:

(1) Whether the trial court erred as a matter of law or abused its

discretion in denying Sea-Z’s cross-motion to set aside the jury’s

finding that Sea-Z “did not have a good faith basis under

[CASPA] to withhold payment from IMC . . .”, including the

following subsidiary questions:

a. Did the trial court err in sustaining the jury’s finding

that Sea[-]Z lacked a good faith basis in withholding

payment from IMC where such finding is inconsistent

with the jury’s award of $58,000 to Sea-Z for breach of

[c]ontract[?]

b. Did the trial court err in sustaining the jury’s finding

that Sea-Z did not have a good faith basis to withhold

final payment where there was un[]contradicted

evidence of IMC’s failure to satisfy express conditions

precedent to final payment under the parties[’]

[c]ontract?

(2) Did the trial court err in molding the [j]ury [v]erdict when it

assessed interest in favor of IMC under CASPA in the absence of

any basis in the [j]ury [v]erdict to determine the amount of the

contract balance due and owing (within the meaning of CASPA §

505(d)) or the amount held as retainage and subject to the

special provisions of CASPA § 509(d)?

(3) Did the trial court err in molding the [j]ury [v]erdict when it

assessed penalties in favor of IMC under [s]ection 512(a) of

CASPA in the absence of any basis in the [j]ury [v]erdict to

determine the amount due under the [c]ontract that was

“wrongfully withheld” within the meaning of that section?

(4) Did the trial court err in molding the [j]ury [v]erdict when it

computed the amount of interest and penalties [under]

[s]ections 505(d) and 512(a) of CASPA based on the sum of

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$123,879.70, being the entire amount of the contract balance

claimed by IMC, without deduction or set-off for the jury’s award

of damages against IMC and in favor of Sea-Z in the amount of

$58,000?

(5) Did the trial court err in molding the [j]ury [v]erdict when it

found that IMC was the “substantially prevailing party” and

awarded IMC the recovery of attorneys’ fees and expenses under

[s]ection 512(b) of CASPA?

(6) Did the trial court err in molding the [j]ury [v]erdict by

failing to determine the amount of the reasonable attorney[s’]

fee[s] allowed under [s]ection 512(b) of CASPA?

(7) Did the trial court err in molding the [j]ury’s [v]erdict when

it awarded to IMC attorneys’ fees and expenses under [s]ection

512(b) of CASPA for those fees and expenses incurred by IMC in

defending Sea-Z’s counterclaim?

Appellant’s Brief, at 11-13 (emphasis in original).

Sea-Z claims that the jury’s determination that Sea-Z lacked a good

faith basis to withhold paying IMC is inconsistent with its $58,000.00 verdict

in Sea-Z’s favor.7 Instantly, Sea-Z failed to object at trial, immediately after

the charge was read to the jury, following deliberations and the verdict, and

prior to the discharge of the jury. See N.T. Jury Trial, 11/5/15, at 109

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7

Even if this issue were not waived, IMC suggests that one can reconcile the

jury’s determination that Sea-Z lacked good faith and recovered $58,000.00

on its counterclaim based upon IMC’s obligation to repair any defective work

after substantial completion of the project under the parties’ contract. See

Appellee’s Brief, at 33-34. Moreover, as defense expert, Marline E. Buckley,

testified on cross-examination, if the jury determined that the non-

conforming items were not within the scope of the parties’ contract and that

IMC had substantially performed under the contract, the estimate for those

items (which totaled over $631,000.00) would be irrelevant. N.T. Jury Trial,

11/5/15, at 65-67. Notably, the $58,000.00 recovery is less than 10

percent of what Sea-Z sought in damages for non-conforming work.

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(“Counsel, have there been any additions or corrections to the Charge as I

gave it? No, Your Honor.”); Id. at 111-12 (“As to this verdict just rendered

. . . [a]ny motions? No, Your Honor.”). We find this claim waived. See

Tyus v. Resta, 476 A.2d 427 (Pa. Super. 1984) (where party contended

trial court incorrectly charged jury as to measure of damages, failure to

question instruction after judge charged jury waived issue on appeal); see

also Criswell v. King, 834 A.2d 505 (Pa. 2003) (party's failure to object to

jury's allegedly inconsistent verdict before jury is dismissed waives issue);

Rozanc v. Urbany, 664 A.2d 619 (Pa. Super. 1995) (where objection is to

wording of interrogatory or inconsistent result reached by jury following

answering of interrogatories, claim is waived if party does not object to

verdict and permit court to resolve issue).

In its next issue, Sea-Z claims that the jury’s finding that it did not

have a good faith basis to withhold final payment was against the weight of

the evidence8 where “there was un[]contradicted evidence of IMC’s failure to

satisfy express conditions precedent to final payment under the parties’

[c]ontract.” Appellant’s Brief, at 34.

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8

We recognize that a post-trial motion alone is sufficient to preserve a claim

that the verdict is against the weight of the evidence, where the verdict is

not inconsistent or ambiguous and/or where an objection and instruction to

the jury would not have eliminated the need for a new trial. Criswell,

supra.

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At trial, IMC offered evidence to support the jury’s determination that

Sea-Z acted in bad faith in withholding payment. Specifically, IMC

presented evidence showing that Sea-Z: failed to seek the architect’s

review and approval of alleged deficiency items, as is required under the

parties’ contract; did not timely reply to IMC’s requests for information

(RFIs); disregarded the architect’s determination that the project was

substantially complete and retainage should be released; did not make

timely and complete payments to IMC throughout the project without

explanation; failed to notify IMC of alleged deficiency items within 7 days of

receipt of application for payment; preparing an inaccurate list of incomplete

or non-conforming items at the end of the project to things that were not in

the scope of the parties’ contract; certified to the bank that all

improvements had been performed and that all proceeds requested for

construction costs will be paid to IMC; and deceived IMC by stating the bank

was withholding funds pending completion of non-conforming items. See

N.T. Jury Trial, 11/2/15, at 47-48, 57, 157-65; N.T. Jury Trial 11/3/15, at

133-34, 171-73, 177-84; N.T. Jury Trial, 11/4/15, at 144-45, 149-50, 170-

71, 228, 233, 252-54; Defendant’s Trial Exhibits 45-48; and R.R. 638a-38a,

725a.

The jury was free to believe this testimony and determine that Sea-Z

did not have a good faith basis to withhold final payment; the trial court did

not abuse its discretion in failing to award a new trial on this claim in spite of

any evidence presented by Sea-Z to contradict IMC’s case. See Fazio v.

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Guardian Life Ins. Co. of Am., 62 A.3d 396 (Pa. Super. 2012) (appellate

review of weight claim is review of exercise of discretion, not of underlying

question of whether verdict is against weight of the evidence); Mirizio v.

Joseph, 4 A.3d 1073, 1087 (Pa. Super. 2010) (new trial warranted on

weight of evidence grounds only in truly extraordinary circumstances, i.e.,

when jury’s verdict is so contrary to evidence that it shocks one’s sense of

justice and award of new trial is imperative so that right may be given

another opportunity to prevail).

Several of Sea-Z’s remaining claims focus on the fact that the jury’s

verdict does not reflect what portion of its award to IMC constitutes: the

amount “due and owing” under the parties’ contract; the amount of delay

damages, the amount properly retained under the contract; and the amount

withheld in bad faith. Without such a breakdown, Sea-Z contends that the

court could not properly mold the verdict to add section 505(d) interest and

section 512(a) penalties under CASPA.

We first recognize that a trial court may mold a jury verdict to include

interest owed, even when the issue is not submitted to the jury.

Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572 (Pa. Super. 2003). This

Court also has the authority to mold the verdict by adding interest that is

due. See Berkeley Inn, Inc. v. Centennial Ins. Co., 422 A.2d 1078 (Pa.

Super. 1980). Moreover, a trial court may mold a verdict to include

prejudgment interest even after an appeal has been taken. See

Metropolitan Edison Co. v. Old Home Manor, Inc., 482 A.2d 1062, 1065

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(Pa. Super. 1084); see also Pa.R.A.P. 1701(b)(1). The power to mold or,

more precisely, amend a jury's verdict is merely a power to “make the

record accord with the facts, or to cause the verdict to speak the truth,” 6

Standard Pennsylvania Practice, supra, Ch. 27, § 72 at 568, and not a

power to enable a judge to invade the province of the jury. House of

Pasta, Inc. v. Mayo, 449 A.2d 697, 702 (Pa. Super. 1982) (citation

omitted).

Again, Sea-Z never objected to the issue regarding how the jury award

was broken down, either after the jury returned its verdict or before the jury

was dismissed. Sea-Z could have requested a special interrogatory

delineating exactly what part was considered due and owing under the

parties’ contract, the amount of delay damages, the amount properly

retained under the contract, and the amount withheld in bad faith. If it had

objected prior to dismissal of the jury, the court could have re-instructed the

jury to state exactly how to apportion the verdict for purposes of sections

505 and 512 and, thus, enabled the jury to clarify its verdict. Picca, supra;

Pa.R.C.P, 227.1(b)(1). Thus, despite the fact that Sea-Z later filed post-trial

motions, the claim is waived. Tyus, supra.

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In its next issue, Sea-Z contends that the court erred in molding the

verdict when it computed interest and penalties 9 under CASPA without first

deducting or setting-off the jury’s award of $58,000.00 in favor of Sea-Z.10

A contractor is entitled to recover statutory interest under CASPA as

follows:

(d) INTEREST.— Except as otherwise agreed by the parties, if

any progress or final payment to a contractor is not paid within

seven days of the due date established in subsection (c), the

owner shall pay the contractor, beginning on the eighth day,

interest at the rate of 1% per month or fraction of a month on

the balance that is at the time due and owing.

73 P.S. § 505(d) (emphasis added). Moreover, section 512 of CASPA

mandates an award of penalties against an owner who fails to comply with

the CASPA when:

(a) Penalty for failure to comply with act.--If arbitration or

litigation is commenced to recover payment due under

this act and it is determined that an owner, contractor or

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9

The court calculated the interest and penalties based on the contract

balance of $123,879.70 at 1% per month from years 2011-2015, at a 12%

per year interest rate, for a total of 1,601 days, to come to a figure of

$65,204.88 in interest on past due payments and penalties on the

wrongfully withheld payments. See IMC’s Post-Trial Motion to Mold Verdict,

11/13/15, at 6.

10

The fact of whether a party withholds funds in good faith is relevant to a

determination of whether a party is entitled to statutory interest and

penalties under CASPA. Waller Corp. v. Warren Plaza, Inc., 95 A.3d 313

(Pa. Super. 2014), alloc. granted in part, 108 A.3d 29 (Pa. 2015). CASPA

mandates the award of a penalty upon a showing that a payment was

"wrongfully withheld." 73 P.S. § 512(a). Absent good faith withholding,

interest continues post-award at the statutory rate until payment.

Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497 (Pa. Super. 2009).

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subcontractor has failed to comply with the payment terms

of this act, the arbitrator or court shall award, in addition to

all other damages due, a penalty equal to 1% per month of

the amount that was wrongfully withheld. An amount shall

not be deemed to have been wrongfully withheld to the extent it

bears a reasonable relation to the value of any claim held in

good faith by the owner, contractor or subcontractor against

whom the contractor or subcontractor is seeking to recover

payment.

73 P.S. § 512(a) (emphasis added).

Pursuant to sections 505(d) and 512(a), IMC is entitled to recover

interest on the “balance that was due and owing” under the parties contract,

as well as a penalty on the “amount that was wrongfully withheld.” Here,

the court did exactly that when it imposed interest and a penalty equal to

1% per month on $123,897.70, the amount alleged to have been wrongfully

withheld by Sea-Z. IMC was due the balance under the contract, that was

not withheld in good faith by Sea-Z, and the interest and penalties should be

calculated off of that amount. To off-set the $58,000.00 that Sea-Z

recovered in its non-CASPA breach of contract claim would dilute the intent

of CASPA’s interest and penalty provisions and provide a benefit to Sea-Z

where the jury determined that Sea-Z did not withhold the funds in good

faith.11

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11

In fact, the trial court properly instructed the jury that:

[T]he appropriate measure of plaintiff’s direct damages for

breach is the reasonable cost of completing the contract and

correcting any defective work minus the unpaid balance of the

contract price.

(Footnote Continued Next Page)

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In its final related, three issues, Sea-Z contends that the trial court

erred in molding the verdict to include attorneys’ fees and expenses under

CASPA where it: (1) incorrectly found that IMC was the “substantially

prevailing party”; (2) failed to determine a reasonable amount of fees; and

(3) included the fees incurred by IMC in defending Sea-Z’s counterclaim.

Under CASPA, a party is entitled to attorneys’ fees and expenses as

follows:

(b) AWARD OF ATTORNEY FEE AND EXPENSES.—

Notwithstanding any agreement to the contrary, the

substantially prevailing party in any proceeding to recover any

payment under this act shall be awarded a reasonable attorney

fee in an amount to be determined by the court or arbitrator,

together with expenses.

73 P.S. § 512(b). A “prevailing party” is commonly defined as:

[A] party whose favor a judgment is rendered, regardless of the

amount of damages awarded. While this definition encompasses

those situations where a party receives less relief than was

sought or even nominal relief, its application is still limited to

those circumstances where the fact finder declares a winner and

the court enters judgment in that party’s favor.

Zavatchen v. RJF Holdings, Inc., 907 A.2d 607, 610 (Pa. Super. 2006)

(emphasis added) (quoting Profit Wize Mkts. v. Weist, 812 A.2d 1270,

1275-76 (Pa. Super. 2002) (internal citations omitted). To qualify as a

substantially prevailing party under CASPA, a party need not only recover on

_______________________

(Footnote Continued)

N.T. Non-Jury Trial, at 11/5/15, at 98-99.

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its claim, but also prove the opposing party, without good faith reason, failed

to comply with the mandate of prompt payment. Zimmerman, supra.

See Zavatchen, supra at 609 (“substantially prevailing inquiry does not

“turn[] on a simple mathematical comparison of the parties’ respective

recoveries” or “simply because a party won a net judgment.”).

Here, IMC recovered $124,280.95, relatively the exact amount it

sought ($123,897.70) under CASPA, representing the unpaid balance of the

parties’ contract. Moreover, in addition to finding that Sea-Z breached its

contract with IMC, the jury also determined that Sea-Z did not withhold

funds in good faith. Cf. LBL Skysystems (USA), Inc. v. APG-America,

Inc., 514 F. Supp. 2d 704 9E.D. Pa. 2007) (where subcontractor prevailed

on breach of contract counterclaim against contractor, because contractor

rightfully withheld over $4,000,000.00 due to pending costs to complete

project, subcontractor was not “substantially prevailing party” for purposes

of recovering attorneys’ fees under section 512(b) of CASPA). Therefore,

the court properly awarded IMC attorneys’ fees under section 512(b) where

IMC filed suit in “a proceeding to recover” payment under CASPA; the jury

found that Sea-Z failed to comply with CASPA’s mandate of prompt

payment. IMC was entitled to recover attorneys’ fees and expenses incurred

in connection with its CASPA litigation. Lomas v. Kravitz, 130 A.3d 107

(Pa. Super. 2015) (en banc).

The question still remains, however, whether IMC is also entitled to

recover attorneys’ fees and expenses associated with defending against Sea-

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Z’s breach of contract counterclaim, a claim not brought within the ambit of

CASPA. As both parties acknowledge, Sea-Z could have brought this

contract claim independent of the current CASPA litigation commenced by

IMC. See Sea-Z Cross Post-Trial Motion at ¶ 36; IMC Post-Trial Motion, at

2, 5 (“[T]he amounts awarded to Sea-Z on its independent counterclaim are

irrelevant for determining the amount of interest and penalties calculated

under CASPA.”).

In Zimmerman, our Court noted that “CASPA’s underlying objective

of making an unpaid contractor whole again by awarding him his litigation

costs when he is the substantially prevailing party is compromised, and,

indeed, can be gutted, when he is subjected to expensive litigations costs.”

Id. 984 A.2d at 505. In Zimmerman, the contractor was also saddled with

costs incurred in a collection-of-fees phase of litigation. Id. However, the

court concluded that the contractor was entitled to a “reasonable attorney

fee and expenses for the collection-of-judgment and the collection-of-fees

periods.” Id. at 506-507.

Here, while IMC is entitled to attorneys’ fees on his successful CASPA

verdict as a substantially prevailing party, we come to a different conclusion

with regard to the fees IMC expended in defending Sea-Z’s non-CASPA

counterclaim. Because the jury determined that IMC breached its contract

with Sea-Z, it rendered Sea-Z a verdict of $58,000.0. Accordingly, we

cannot conclude that IMC prevailed, let alone “substantially” prevailed, on

the counterclaim. As such, Sea-Z is entitled to have the amount of

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attorneys’ fees and expenses awarded to IMC offset by the amount of fees

and expenses paid out to defend against the counterclaim; IMC is not

entitled to section 512(a) statutory attorneys’ fees on the counterclaim.12

See Zelenak v. Mikula, 911 A.2d 542, 545 (Pa. Super. 2000) (“The plain

meaning of ‘prevailing part’ is the party who wins the lawsuit.”). Here, Sea-

Z was clearly the verdict winner in its breach of contract counterclaim where

the court found that IMC breached the contract and judgment was entered in

Sea-Z’s favor. Profit Wize, supra.

Accordingly, we remand for a hearing on the issue of attorneys’ fees

where the trial court shall determine what a “reasonable” fee is under

section 512 of CASPA, notwithstanding the fees expended in defending Sea-

Z’s counterclaim. See 73 P.S. § 512(b). IMC must submit supporting

documentation to substantiate the reasonable amount of fees incurred solely

in litigating its CASPA claim. See Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d

880 (Pa. Super. 2006) (where contractor unreasonably withheld retainage

under section 509 of CASPA, remand necessary to determine correct amount

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12

It is well established that costs inherent in a law suit are awarded to and

should be recoverable by the prevailing party. DeFulvio v. Holst, 362 A.2d

1098 ((Pa. Super. 1976). Here, IMC cannot be considered a prevailing party

on Sea-Z’s counterclaim where the jury found that it breached its contract

with Sea-Z and awarded it damages on the breach. It, then, follows that

IMC cannot be considered a substantially prevailing party on Sea-Z’s

counterclaim, an even higher threshold, under CASPA.

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of attorneys’ fees and costs under section 512 as substantially prevailing

party).

Order affirmed in part; reversed in part. Case remanded for

proceedings consistent with this decision. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/4/2017

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