Lehigh Concrete, Inc. v. Bult

1

LEHIGH CONCRETE, INC. AND ALLEN GRUBER v. RANDY BULT, TRAVIS BULT AND DIRT WORK SOLUTIONS, LLC

APPEAL OF: DIRT WORK SOLUTIONS, LLC

No. 2639 EDA 2022

No. J-S26032-23

Superior Court of Pennsylvania

November 2, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment Entered November 28, 2022 In the Court of Common Pleas of Lehigh County Civil Division at No(s) 2020-C-1135

BEFORE: STABILE, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM

McLAUGHLIN, J.

Dirt Work Solutions, LLC ("Dirt Work") appeals from the judgment entered against it^[1] and in favor of Lehigh Concrete Inc. and its owner, Allen Gruber (collectively, "Lehigh Concrete"). Dirt Work argues the court erred in awarding damages exceeding the amount Lehigh Concrete pleaded in its amended complaint. We affirm.

Dirt Work, a contractor, hired Lehigh Concrete as a subcontractor on a project to build two retaining walls at St. Luke's Hospital in Saucon Valley. See Trial Court Opinion, 12/12/22, at 3-4. Lehigh Concrete later commenced this litigation, alleging in an amended complaint that Dirt Work had failed to provide full consideration for the work it completed. Lehigh Concrete asserted claims of breach of contract and unjust enrichment.

In the body of the amended complaint, Lehigh Concrete alleged that it had submitted four invoices to Dirt Work, totaling $126,745.92:

• $15,929.14,

• $35,779.28,

• $8,925.00, and

• $66,112.50.

Amended Complaint, 7/9/20, at 8 (unpaginated). It alleged that Dirt Work had only paid it $55,000 towards these invoices. It pleaded damages "in excess of" the allegedly remaining amount: $71,745.92. Id.

Lehigh Concrete also attached copies of the four invoices as exhibits to the amended complaint. However, in contrast to the allegations in the body of the complaint, the first invoice stated that Dirt Work owed Lehigh Concrete $5,929.14, rather than $5,929.14. See Amended Compl. at Ex. A. Moreover, the invoice stated it represented work totaling $60,929.14, but that only $5,929.14 was still due because the invoice accounted for Dirt Work's $55,000 payment - the same payment which Lehigh Concrete had again deducted from the total amount of the invoices when calculating damages in the body of the complaint. See id.

In its pretrial statement, Lehigh Concrete changed its demand to $116,745.92 "plus cost of add-ons." Lehigh Concrete's Pretrial Statement, 9/8/22, at 2. Lehigh Concrete's proposed findings of fact stated that the four invoices totaled $171,745.92, Dirt Work had paid $55,000 towards that total, and the outstanding balance was $116,745.92. Lehigh Concrete's Proposed Findings of Fact, 9/8/22, at 2-3. Dirt Work did not request a trial continuance.

At trial, nearly two weeks after the filing of the pretrial statement, Lehigh Concrete submitted the invoices into evidence, as P-3 through P-6. Dirt Work did not object. Lehigh Concrete offered testimony substantiating the invoices and that the total outstanding amount was $116,745.92. Dirt Work objected to the testimony, because Lehigh Concrete had only pleaded $71,745.92 in damages in the amended complaint. The court overruled the objection.^[2] The court found against Dirt Work in the amount of $107,820.92. It found Dirt Work was not liable for the invoice for $8,925.00, but that it owed Lehigh Concrete the total shown in the other three invoices, less the $55,000 payment it had made.

Dirt Work filed a motion for post-trial relief,^[3] which the court denied. Dirt Work appealed,^[4] and raises the following question: "Did the [trial] court err by granting a judgment to Lehigh Concrete in excess of what it pleaded in the operative complaint in which it alleged breach of contract, account stated, and unjust enrichment?" Dirt Work's Br. at 3.

Dirt Work argues that the court erred in awarding Lehigh Concrete $107,820.92 when the amended complaint pleaded damages of $71,745.92. Dirt Work argues that its "first indication" that Lehigh Concrete sought a greater amount - $116,745.92 - was when it submitted its brief "on the eve of trial." Id. at 9. Dirt Work claims it was prejudiced by the variance because if "the amount Lehigh Concrete sought at trial been pleaded in its [amended c]omplaint, then Dirt Work would have adduced discovery to probe that claim (which it disputed at trial and timely objected to), and possibly could have retained an expert review of that claim." Id. at 8-9.

"Our standard of review in non-jury trials is to assess whether the findings of facts by the trial court are supported by the record and whether the trial court erred in applying the law." Woullard v. Sanner Concrete & Supply, 241 A.3d 1200, 1207 (Pa.Super. 2020) (citation omitted). Our standard of review of questions of law is de novo and our scope of review is plenary. Kripp v. Kripp, 849 A.2d 1159, 1164 n.5 (Pa. 2004).

This Court has previously set forth the law of variance as follows:

A variance denotes difference and in reference to legal proceedings, it refers to a disagreement or difference between the allegations made and the proof shown, not in the sense that there is a failure of proof, but that, contrary to the fundamental principle of good pleading and practice, the proof fails to materially correspond to the allegations. A material variance consists of a departure in the evidence from the issues on which the cause of action must depend.

For purposes of determining whether a claimed or apparent discrepancy between pleadings and proof constitutes a variance, the entire pleadings and evidence should be considered. Generally, in order to constitute a variance, the discrepancy must exist between the allegations and proofs of the particular party, with the result that a party is not permitted to introduce evidence that is inconsistent with or fails to correspond to the allegations made by that party.

The modern rules of pleading and practice are relatively liberal. Consequently, the impact of variance may be diminished by the preference for a liberal, if not informal, evaluation of pleadings emphasizing the determination of cases based upon their merits rather than based on mere technicalities, which policy, for example, may allow a party to cure a variance by offering, during or after trial, to amend the pleadings to conform to the proof.

Young v. Lippl, 251 A.3d 405, 418 (Pa.Super. 2021) (quoting Graham v. Campo, 990 A.2d 9, 13-14 (Pa.Super. 2010)) (brackets omitted).

Relief is only warranted where the variance is material and prejudices the defendant. That is, even where the things alleged and the things proven "may not entirely agree, if the defendant is not misled, and the variance does not in any way affect the trial on its merits, or set up a different cause of action, or impose any different burden on the defendant, the variance will not be considered material." Lippl, 251 A.3d at 418-19 (quoting Higgins Lumber Co. v. Marucca, 48 A.2d 48, 49-50 (Pa.Super. 1946) (emphasis omitted).^[5] A variance is not material where it "merely adds to or amplifies the original complaint." Graham, 990 A.2d at 14 (citation and emphasis omitted).

Here, the trial court explained that it found Lehigh Concrete had "made a scrivener's error" when pleading the total damages in the Amended Complaint, by "errantly deduct[ing Dirt Work]'s $55,000.00 payment twice" from the total shown in the invoices. Trial Ct. Op. at 4. It further found Dirt Work was not prejudiced by the error, because it was put on notice of the actual amount of damages through the invoices:

All of the invoices were properly attached to the Amended Complaint and have been in [Dirt Work]'s possession throughout this litigation. There is no prejudice to [Dirt Work] in awarding [Lehigh Concrete] the measure of damages that adequately compensates them for the work performed. [Dirt Work] should not reap the benefit of a mathematical miscalculation in the body of the amended complaint, when the proper documentation was attached thereto.

Id. (footnote omitted). The court also observed that the amount it awarded Lehigh Concrete was at least $75,000 less than...