Hempt Bros, Inc. v. Allan A. Myers, L.P.

HEMPT BROS, INC. v. ALLAN A. MYERS, L.P., ARCH INSURANCE COMPANY, AND SAFECO INSURANCE COMPANY OF AMERICA Appellant ALLAN A. MYERS, L.P. v. HEMPT BROS, INC.

HEMPT BROS, INC. Appellant v. ALLAN A. MYERS, L.P., ARCH INSURANCE COMPANY, AND SAFECO INSURANCE COMPANY OF AMERICA -

ALLAN A. MYERS, L.P. v. HEMPT BROS, INC. Appellant

Nos. 1009 EDA 2020, 1018 EDA 2020

Superior Court of Pennsylvania

October 28, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment Entered March 6, 2020 In the Court of Common Pleas of Montgomery County Civil Division at No(s) No. 2012-14292, No. 2014-00307

BEFORE: OLSON, J., NICHOLS, J., and STEVENS P.J.E.^[*]

MEMORANDUM

NICHOLS, J.

Appellants/Cross-Appellees Allan A. Myers, L.P., Arch Insurance Company, and Safeco Insurance Company of America (collectively, Myers) appeal from the final judgment entered in favor of Appellee/Cross-Appellant Hempt Bros., Inc. (Hempt), following a jury trial and the resolution of post-trial motions in these consolidated actions. Myers challenges (1) the trial court's denial of its motion for summary judgment; (2) the trial court's denial of Myers' proposed jury instruction concerning total cost damages, (3) the jury's findings concerning damages in four of the eight claims, and (4) the trial court's denial of its motion for compulsory non-suit. In its cross-appeal, Hempt challenges the pre-judgment interest aspect of the judgment. For the reasons set forth herein, we affirm in part and reverse in part the trial court's decision on Myers' post-trial motion, vacate the judgment, and remand this matter for a new trial limited to Hempt's damages for overtime for excessive handwork. Because our decision in Myers' appeal sets aside the judgment, we dismiss Hempt's cross-appeal as premature.

The trial court summarized the background of these cases as follows:

[O]n August 28, 2009, the Commonwealth of Pennsylvania, [Myers], and the Pennsylvania Department of Transportation ("PennD[OT]") entered into a contract for the reconstruction of a segment of I-476 (also known as the "Blue Route") located in Montgomery County, Pennsylvania (the "Project"). Myers was the general contractor for the Project. On January 26, 2010, [Hempt] and Myers entered into a written agreement (the "Subcontract"), in which Hempt agreed to perform specific areas of concreate paving work for the mainline and ramps of I-476 from the Schuylkill Expressway to the Mid-County Interchange of the Pennsylvania Turnpike. Hempt was a subcontractor to Myers for the Project pursuant to the terms and conditions of the Subcontract Agreement. Arch Insurance Company ("AIC") and Safeco Insurance Company of America ("Safeco") were Myers' payment and performance bond sureties that furnished statutorily required payment bonds for the project to guarantee the payment of materials and labor supplied or performed on the Project. Liberty Mutual is the successor or assignee of Safeco and as such is obligated to pay or defend claims made against the Safeco Bond.

On or about June 1, 2012, Hempt filed a Complaint against [Myers] and Liberty Mutual for breach of contract, unjust enrichment and failure of the sureties to make payments to Hempt for work done for the Project.^[1] On July 11, 2013, Hempt filed a Second Amended Complaint against [Myers]. The Amended Complaint included more specificity regarding the factual averments supporting the breach of contract claim. The Complaint contained three counts: (I) breach of contract against Myers, (II) breach of AIC's bond, and (III) breach of Safeco's bond. The breach of contract claim consisted of two categories:

claims for additional costs incurred performing subcontract work, including, 1) failing to pay for overtime for excessive handwork, 2) increased costs on account of the batch plant, 3) increased forming and placing costs for concrete paving work, 4) cold weather work, 5) lost production at Plymouth Creek Bridge, 6) concrete overruns, 7) extra grinding work, as well as 8) claims for unpaid estimates. Hempt's claims against AIC and Safeco arose out of their refusal to pay Hempt on behalf of their principal, Myers. Myers filed preliminary objections to the Second Amended Complaint, which the [trial c]ourt denied. On December 20, 2013, Myers filed an Answer to the Second Amended Complaint with New Matter and Counterclaim. On December 22, 2017, Myers filed a Motion for Summary Judgment, which was denied by the Court on August 14, 2018.

On January 6, 2014, [Allan A. Myers, LP.] initiated a separate action against Hempt in the Montgomery County Court of Common Pleas, case no. 2014-00307 [(2014-00307), ] by writ of summons. On July 28, 2017, [Allan A. Myers, L.P.] filed a Complaint against Hempt containing two counts: (1) breach of contract, and (2) quantum meruit. The breach of contract claim was based on alleged inefficiencies of Hempt in failing to timely and fully perform in accordance with the Subcontract and "actively interfering with [Allan A. Myers, L.P.'s] operations on the project[.]" On November 3, 2017, Hempt filed an Answer with New Matter and Counterclaim. [Allan A. Myers, L.P.] filed preliminary objections to Hempt's counterclaim based on pendency of a prior action. By Order dated January 18, 2018, the [trial c]ourt sustained [Allan A. Myers, L.P.'s] preliminary objections to Hempt's counterclaim and defense of setoff in part, on the basis of pendency of a prior action, and consolidated the two, related cases. The [c]ourt directed [Allan A. Myers, L.P.] to respond to Hempt's Counterclaim and New Matter within twenty days after notice of the Order, or, alternatively, for Hempt to withdraw them, in whole or in part, as duplicating claims set forth in the prior, now consolidated action.

The two cases were consolidated and proceeded to a two-week trial before a jury between October 28, 2019 through November 7, 2019; Hempt's claims for breach of contract were presented before the jury and Myers' claims of breach of contract also went to the jury.

Trial Ct. Op., 8/3/20, at 1-3 (record citations omitted).

We add that Hempt's and Myers' respective actions claimed the other party was responsible for delays and other damages during the Project. Specifically, Hempt asserted at trial that Hempt and Myers agreed to negotiate special payments for the "handwork" Hempt needed to complete the concrete work because they could not anticipate the amount of handwork involved when they entered into the Subcontract.^[2] See, e.g., N.T. Charge Conference, Closings, Charge (Excerpted Transcript), 11/7/19, at 39.^[3] Among other problems during the Project, Hempt referred to Myers' failures to provide a three-and-one-half foot "track line"^[4] to permit the operation of Hempt's "slipform" machinery, ^[5] a site for a concrete batch plant, and access to bridges. According to Hempt, these problems resulted in the need for more expensive handwork and other inefficiencies. See id. Myers, in turn, asserted that Hempt breached its obligations under the Subcontract, which resulted in a loss in the value of its claims against PennDOT and additional costs to complete Hempt's work.^[6]

On November 8, 2019, the jury issued verdicts of $1, 735, 000 for Hempt and $665, 000 for Myers. In Hempt's action against Myers at 2012-14292, the jury provided the following relevant answers on the verdict sheet:

3. Do you find that Allan A. Myers, L.P. breached the contract by failing to pay Hempt Bros. overtime for excessive handwork on the project?

[Answer: Yes]

3A. State the amount of damages you award to Hempt Bros. for overtime for excessive handwork:

[Answer: $210, 000]

* * *

5.Do you find that Allan A. Myers, L.P. breached the contract by failing to pay Hempt Bros. for increased forming and placing costs for the concrete paving work on the project?

[Answer: Yes]

5A. State the amount you award Hempt Bros. for failing to pay Hempt Bros. for increased forming and placing costs for the concrete paving work on the project?

[Answer: $530, 000]

6.Do you find that Allan A. Myers, L.P. breached the contract by failing to pay Hempt Bros. for cold weather work?

[Answer: Yes]

6A. State the amount of damages you award Hempt Bros. for failing to pay Hempt Bros. for cold weather work:

[Answer: $126, 000].

* * *

10. Do you find that Allan A. Myers, L.P. breached the contract by failing to pay for unpaid estimates?

[Answer: Yes]

10A. State the amount of damages you award Hempt Bros. for failing to pay for unpaid estimates:

[Answer: $700, 000].

Verdict Sheet, 11/8/19, at 1-2, 4.

In Allan A. Myers, L.P.'s consolidated action against Hempt, the jury answered the verdict sheet as follows:

12. Do you find that Hempt Bros. breached its contract with Allan A. Myers, L.P.?

[Answer: Yes]

* * *

14. State the amount of damages you award to Allan A. Myers, L.P. for breach of contract?

[Answer: $665, 000]

Id. at 5.^[7] After the resolution of the parties' post-trial motions and motions for pre-judgment interest, Myers praeciped for the entry of a single judgment against it and in favor of Hempt for $1, 595, 216 plus interest from the date of the judgment.^[8] On March 6, 2020, the clerk of the court entered the total judgment at 2012-14292.

Myers timely filed a notice of appeal on March 12, 2020, and Hempt timely cross-appealed on April 1, 2020.^[9] See Pa.R.A.P. 903(a)-(b). Myers and Hempt complied with the trial court's order to file and serve Pa.R.A.P. 1925(b) statements, and the trial court filed a responsive opinion.

Myers' Appeal

At 1009 EDA 2020, Myers presents six issues that we have reordered for our review:

1. Whether the trial court erred in denying [Myers'] motion for summary judgment on the basis of [Hempt's] failure to comply with express, mandatory written notice

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