Young v. Lippl

251 A.3d 405

Jane YOUNG, Appellant v. John E. LIPPL., P.E.

Jane Young v. John E. Lippl, P.E., Appellant

No. 227 WDA 2020

No. 499 WDA 2020

Superior Court of Pennsylvania.

Argued December 1, 2020

Filed: March 31, 2021

Matthew S. Marquette, Allison Park, for appellant.

Shane Haselbarth, Philadelphia, for appellee.

Charlene S. Seibert, Pittsburgh, for appellee.

BEFORE: OLSON, J., MURRAY, J., and McCAFFERY, J.

OPINION BY OLSON, J.:

In this cross-appeal, Jane Young ("Young") and John E. Lippl, P.E. ("Lippl") appeal different aspects of the March 10, 2020 judgment entered upon a jury verdict in favor of Young in the amount of $114,947.99. ¹ We affirm. We remand this case, however, for the limited purpose of calculating and awarding post-judgment interest as discussed, infra.

The trial court summarized the factual and procedural history as follows:

Beginning in April 2008, [Young] and her former husband, Bruce Goldblatt ("Goldblatt"), entered into an agreement with [a] builder[,] Custom Homes, Inc. ("Custom Homes")[,] for the construction of a [house] in Eighty-Four, Pennsylvania. Numerous disputes arose such that [Young] refused to allow Custom Homes to finish construction, resulting in [Custom Homes commencing] an arbitration action [against Young and Goldblatt] before the America Arbitration Association ("AAA").

At the [arbitration hearing, Lippl ² ] argued on behalf of [Young] and Goldblatt that the [house] was continuing to settle and required stabilization due to Custom Homes' failure to dig to firm clay after charging for extraordinary ground preparation.

[Lippl] consulted with John L. Suhrie, P.E. ("Suhrie") to provide expert analysis of and a detailed report [("the Suhrie Report")] on the claims against Custom Homes for use at [the] arbitration [hearing. Lippl] did not obtain [geotechnical] soil testing in support of [Young's] and Goldblatt's claims.

Arbitrator David Scotti,[Esquire ("Arbitrator")] issued an award on October 14, 2010[,] in favor of Custom Homes in the amount of $64,032.21. The Arbitrator found that [Young] and Goldblatt [ ] wrongfully terminated [their contract with] Custom Homes, [and denied the builder an] opportunity to correct any issues or to complete the [construction] project. The Arbitrator dismissed [Young's] counterclaims for[,] inter alia [,] negligent construction, which asserted that Custom Homes' work was defective and incomplete. Following the award, [Lippl] was terminated as counsel by [Young] and Goldblatt.

[Young] hired GeoMechanics, Inc. ("GeoMechanics"), an engineering company, to conduct [geotechnical] soil testing. As a result [of the soil testing, Young] learned that Custom Homes had poorly compacted the fill material under her [house]. Moreover, GeoMechanics exposed the footers of the foundation and discovered that Custom Homes had not dug deep enough to reach firm clay.

[Young] then filed suit on May 1, 2012[,] against Nottingham Township's building inspector, Code.Sys Consulting, Inc. ("Code.Sys"), alleging that it should have required an engineered caisson foundation rather than a spread footer foundation given the soil conditions. [Young] claimed damages for repair costs based on [building] code violations including[,] but not limited to, failure of the foundation system, permanent loss of use of the property, depreciation in value and marketability of the property, an inability to obtain refinancing[,] and escalating expert and engineering fees. [On September 27, 2017, a] jury ruled in favor of [Young and awarded her] $412,750.00 [in damages].

In lieu of an appeal, [Young and Code.Sys] settled for $455,250.00 and executed a settlement and release agreement that specifically discharged any claims [Young] had or may have had against Code.Sys. The language in the agreement stated that [Young],

"... forever discharges [Code.Sys] from any and all liabilities, charges, claims, causes of action or suits, of whatever kind or nature, absolute, contingent, unliquidated or otherwise, including, but not limited to, any rights, obligations or claims arising out of or related to the lawsuit, which liabilities, charges, claims, causes of action or suits [Young] and her affiliates, agents, representatives, heirs, executors, attorneys, successors and assigns can, shall or may have against [Code.Sys] by reason of any matter, cause or thing whatsoever, occurring prior to the date of this agreement."

Thus, [Young] satisfied any claim she had or may have had against Code.Sys for the defective foundation and subsequent repairs. The [settlement and release] agreement also discharged Code.Sys from any claims that [Lippl] may have had against it arising out of or related to [Young's] lawsuit.

[Young] filed suit against [Lippl] in December 2012[,] for legal malpractice while the Code.Sys litigation was pending.

[Young] claimed that [Lippl's] failure to obtain [geotechnical] soil testing caused her and Goldblatt to lose at arbitration. She also asserted that the Suhrie [R]eport had recommended that the [geotechnical soil] testing be done. [Young] further argued that [Lippl] could have avoided the finding of improper termination had he shown that Custom Homes' failure to dig to a depth of firm clay was not only a material breach but also fraudulent.

[Lippl] raised numerous affirmative defenses and argued that any reference to [geotechnical] soil testing in the Suhrie [R]eport was related to the risk of future settlement and that such testing would not have revealed that the foundation problems were incapable of repair.[FN1] [Lippl] also asserted that the testing would not have affected the arbitration award since the Arbitrator determined that [Young] and Goldblatt had wrongfully terminated Custom Homes. In fact, it was [Young's] and Goldblatt's prior attorney[,] and not [Lippl,] who had recommended terminating Custom Homes.

[FN1] In this case, [Young] alleged that she was precluded from seeking recovery against Custom Homes for the total loss of her [house] because of the doctrines of res judicata and collateral estoppel. [Young] alleged that Custom Homes would not have been able to cure the defective construction because the [house] was now a total loss. However, this did not preclude [Young] from seeking damages against Code.Sys for repairs to the foundation.

The [trial] court granted [Young's] motion in limine to preclude any evidence of or reference to the Code.Sys litigation.[FN2] Therefore, the jury had no knowledge of [Young's] prior recovery against Code.Sys. [Young] was also precluded from offering evidence that was not in existence or capable of being generated in August 2010.

[FN2] The [trial] court also denied [Lippl's] motion for judgment on the pleadings without prejudice for [Lippl] to argue to offset any damages awarded [in the instant case by the amount previously awarded] in the September 27, 2017 jury verdict [against Code.Sys.]

A seven-day trial was held beginning September 17, 2019. The jury found for [Young] and awarded her $368,401.14 in damages. As noted on the verdict slip, the award consisted of $253,453.15 for "work defective due to structural/foundation issues and repairs," $13,000.00 for the Arbitrator's fees, and $37,915.78 for legal fees. Also included [in the award for damages] was the $64,032.21 arbitration award.

Following the dismissal of the jury, [Young] made an oral motion to mold the verdict. The [trial] court granted [Young's] motion to mold the verdict based upon [its] assumption that the jury had not included the arbitration award in its calculation of the total judgment. Accordingly, the [trial] court entered a docketed verdict in the amount of $432,433.35.

Trial Court Opinion, 3/16/20, at 1-4 (extraneous capitalization and record citations omitted).

Lippl filed post-trial motions requesting that the trial court correct a mathematical error in the molded verdict and grant judgment notwithstanding the verdict, pursuant to Pa.R.Civ.P. 227.1. Young filed a post-trial motion requesting the trial court award her pre-arbitration interest in the amount of $127,384.20 and post-arbitration interest in the amount of $233,087.50. ³ On January 17, 2020, the trial court granted Lippl's post-trial motion regarding the mathematical error in the molded verdict and reduced the verdict to $368,401.14. That same day, the trial court granted, in part, Lippl's post-trial motion for judgment notwithstanding the verdict and further reduced the verdict to $114,947.99. The trial court also denied Lippl's post-trial motion for judgment notwithstanding the verdict, in part, as to Lippl's request to overturn the verdict in its entirety. Finally, that same day, the trial court denied Young's post-trial motion for pre-arbitration and post-arbitration interest.

On February 14, 2020, Young filed notices of appeal from the trial court's January 17, 2020 orders that (1) denied her post-trial motion for pre-arbitration and post-arbitration interest, (2) granted, in part, Lippl's post-trial motion for judgment notwithstanding the verdict and reduced the verdict to $114,947.99, and (3) granted Lippl's post-trial motion request to correct a mathematical error in the verdict. In a March 6, 2020 per curiam order, this Court directed Young to file a praecipe to enter the judgment. The judgment was entered on March 10, 2020. On April 14, 2020, Lippl filed a notice of appeal from the entry of judgment against him in the amount of $114,947.99. ⁴ Both Young and Lippl filed concise statements of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and the trial court subsequently filed separate Rule 1925(a) opinions.

Lippl raises the following issues for our review:

1. Whether the trial court erred in refusing to dismiss this case for failure to join an indispensable party, because the case was filed by only one of two persons having a joint interest in the subject matter of the case[?]

2. Whether the trial court erred in denying the request for

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