Hish, D. v. Pelsynski, L.

• Court: Superior Court of Pennsylvania
• Decided: February 16, 2021
• Docket: 926 EDA 2020
• Status: Unpublished

Opinion

J-S45001-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID A. HISH : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : LINDA BROWAND PELSYNSKI : : Appellant : No. 926 EDA 2020

Appeal from the Judgment Entered March 16, 2020 In the Court of Common Pleas of Wayne County Civil Division at No(s): No. 2018-00271

BEFORE: BOWES, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM BY BOWES, J.: FILED: FEBRUARY 16, 2021

Linda Browand Pelsynski appeals from the judgment entered against her

and in favor of David A. Hish following a non-jury trial on Mr. Hish’s claims of

breach of contract and replevin. We vacate the judgment, affirm in part and

reverse in part the order denying Ms. Pelsynski’s post-trial motion, and

remand for entry of a verdict and judgment consistent with this memorandum.

The following facts are not in dispute. Mr. Hish, a contractor by trade,

began dating Ms. Pelsynski in August 2015 after they met online. From the

fall of 2015 onward, the relationship grew, with the parties residing together

and marriage being discussed. However, their relationship ended in March

2017.

Just prior to meeting Mr. Hish, Ms. Pelsynski had purchased a property

at a foreclosure sale on which were several structures in a state of disrepair J-S45001-20

(“the Property”). Almost immediately after their relationship commenced, Mr.

Hish began performing work on the Property. Mr. Hish, inter alia, demolished

and removed rotted and moldy walls, ceilings, roofs, and a deck, and installed

a new roof, walls, flooring, plumbing, wiring, windows, and vinyl siding. Ms.

Pelsynski assisted in the work on weekends, and periodically reimbursed Mr.

Hish for materials he purchased for use on the Property. When the

relationship ended in March 2017, Mr. Hish presented Ms. Pelsynski a bill for

$56,033.20 representing the costs for 1,814 hours of labor, $6,740 for

materials, and $3,943.20 for fuel for his vehicle. She declined to pay, and Mr.

Hish commenced this action seeking payment for his work, pursuant to either

contract law or a theory of unjust enrichment, and return of his tools and

equipment that remained at the Property through a replevin claim.1

The case proceeded to a non-jury trial on November 4, 2019, at which

the parties offered contradictory accounts of the termination of their

relationship and differing understandings of the basis of Mr. Hish’s work. Mr.

Hish indicated that, separate from their romantic relationship, he and Ms.

Pelsynski had a business arrangement by which she would supply the

materials and he would perform the necessary repairs and improvements to

the Property at a reduced hourly rate. He testified that he provided Ms.

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1 While it does not appear that Ms. Pelsynski had prevented Mr. Hish from retrieving the items that were subject of Mr. Hish’s replevin claim, she did not dispute that they were in her possession at the Property.

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Pelsynski an initial estimate of $50,000 to perform the work, but increased

that to $90,000 once the full extent of the Property’s deterioration was

discovered. Mr. Hish became concerned that he was not being paid for the

work he was performing, but Ms. Pelsynski assured him that she would pay

him after she sold the house. When she took no steps to put the house on

the market, and kept deflecting Mr. Hish’s requests for payment for his labor,

he broke up with her because he felt that he “was taken advantage of.” N.T.

Trial, 11/4/19, at 18.

Ms. Pelsynski’s version of events is quite different. She testified that

the parties never discussed any business arrangement, and that Mr. Hish took

it upon himself to do the repairs, often without consulting with her or seeking

her approval for the materials used. She had no idea that he would be

charging her for the work, and did not even know his hourly rate. Ms.

Pelsynski saw their relationship solely as a romance, and, with discussions of

marriage, thought the work Mr. Hish performed on the property was his

contribution to their future together, since he did not “help pay otherwise

financially to the running of [their] household.” 2 Id. at 42. According to Ms.

Pelsynski, the parties broke up initially in November 2016 because she would

“catch him in lies” and felt uncomfortable with his lack of honesty. Id. at 43.

2 Mr. Hish indicates that Ms. Pelsynski’s contention is “that having a relationship was compensation for his work performed at the Property.” Mr. Hish’s brief at 7. As the above reflects, that is not a fair representation of Ms. Pelsynski’s position.

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They got back together the following month after Mr. Hish came to the

Property to gather his things, but Ms. Pelsynski terminated the relationship

for good in March 2017.

On January 15, 2020, the trial court, accepting Mr. Hish’s account,

entered a verdict against Ms. Pelsynski in the amount of $54,433.20 on Mr.

Hish’s breach of contract claim.3 Finding in favor of Mr. Hish on his replevin

claim as well, the court provided a list of items in Ms. Pelsynski’s possession

to be returned to him. Ms. Pelsynski filed a timely post-trial motion, which

the trial court denied by order of February 20, 2020. Judgment was

subsequently entered on the verdict, and Ms. Pelsynski filed a timely notice of

appeal on March 17, 2020. Both Ms. Pelsynski and the trial court complied

with Pa.R.A.P. 1925.

Ms. Pelsynski presents the following question for our consideration:

Were the trial court’s findings of fact regarding the alleged agreement entered into between [Ms. Pelsynski] and [Mr.] Hish and its conclusion that [they] entered into a value [sic] verbal agreement supported by competent evidence of record when [Mr.] Hish never testified that [Ms. Peslynski] agreed to pay his hourly rate or travel expenses, or that [she] agreed to the majority of the work he did on her property, while [she] denied that she agreed to pay [Mr.] Hish for his labor or travel expenses and testified that she did not authorize the work he did on her property?

3Finding a viable claim sounding in contract, the trial court deemed Mr. Hish’s unjust enrichment claim to be moot. See, e.g., Heldring v. Lundy Beldecos & Milby, P.C., 151 A.3d 634, 645 (Pa.Super. 2016) (“A cause of action for unjust enrichment arises only when a transaction is not subject to a written or express contract.” (cleaned up)).

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Ms. Pelsynski’s brief at 5.

We begin with the pertinent legal principles. Our standard of review “is

limited to: a determination of whether the findings of the trial court are

supported by competent evidence and whether the trial court committed error

in the application of law.” Landis v. Wilt, 222 A.3d 28, 34 (Pa.Super. 2019)

(internal quotation marks omitted). “Findings of the trial judge in a non-jury

case must be given the same weight and effect on appeal as a verdict of a

jury and will not be disturbed on appeal absent error of law or abuse of

discretion.” Id. “When this Court reviews the findings of the trial judge, the

evidence is viewed in the light most favorable to the victorious party below

and all evidence and proper inferences favorable to that party must be taken

as true and all unfavorable inferences rejected.” Id.

In a non-jury trial, the factfinder is free to believe all, part, or none of the evidence, and the Superior Court will not disturb the trial court’s credibility determinations. Assessments of credibility and conflicts in evidence are for the trial court to resolve; this Court is not permitted to reexamine the weight and credibility determinations or substitute our judgments for those of the factfinder. The test is not whether this Court would have reached the same result on the evidence presented, but rather, after due consideration of the evidence the trial court found credible, whether the trial court could have reasonably reached its conclusion.

Gutteridge v. J3 Energy Grp., Inc., 165 A.3d 908, 916 (Pa.Super. 2017)

(en banc) (cleaned up).

Turning to the applicable substantive law, we observe the following.

“Before a contract can be found, all of the essential elements of the contract

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must exist.” Cardinale v. R.E. Gas Dev. LLC, 74 A.3d 136, 140 (Pa.Super.

2013) (internal quotation marks omitted). An enforceable contract exists

where “the parties to it 1) reach a mutual understanding, 2) exchange

consideration, and 3) delineate the terms of their bargain with sufficient

clarity.” Helpin v. Trustees of Univ. of Pennsylvania, 969 A.2d 601, 610

(Pa.Super. 2009) (cleaned up), aff’d on other grounds, 10 A.3d 267 (Pa.

2010).

“While an agreement in order to be binding must be sufficiently definite

to enable a court to give it an exact meaning, not every term of a contract

must always be stated in complete detail.” Nicholas v. Hofmann, 158 A.3d

675, 694 (Pa.Super. 2017) (cleaned up). Although no enforceable contract

exists “[i]f the essential terms of the agreement are so uncertain that there is

no basis for determining whether the agreement has been kept or broken,”

the terms must only be “certain enough to provide the basis for providing an

appropriate remedy.” United Envtl. Grp., Inc. v. GKK McKnight, LP, 176

A.3d 946, 963 (Pa.Super. 2017) (cleaned up).

In an action for breach of contract, establishing the existence of an

agreement and its essential terms is the first element. See, e.g., Linde v.

Linde, 210 A.3d 1083, 1090 (Pa.Super. 2019). To recover, the plaintiff must

also establish that the defendant failed to perform her contractual obligations,

and that the plaintiff suffered damages as a result. Id.

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With these canons in mind, we turn to Ms. Pelsynski’s arguments. Ms.

Pelsynski contends that there is insufficient evidentiary support for the trial

court’s factual finding that she agreed to pay Mr. Hish $25 per hour, plus travel

expenses, to remodel her house.4 Specifically, she asserts that neither party

testified that she requested that Mr. Hish perform the work, or that she would

pay him for labor and materials. See Ms. Pelsynski’s brief at 26. Ms. Pelsynski

claims that “[w]hile [Mr.] Hish testified that he did work on [the P]roperty, he

never testified that it was at [Ms. Pelsynski’s] express direction . . . .” Id. at

26-27. Likewise, “[w]hile [Mr.] Hish testified that he conveyed to [Ms.

Pelsynski] what his hourly rate was, he never testified that she actually agreed

to pay this hourly rate.” Id. Further, although Mr. Hish testified that he

traveled ninety miles round trip at times when he worked on the Property, “he

4 Ms. Pelsynski also makes much of the fact that the statement of facts offered by the trial court in its opinion and verdict does not reference the trial testimony and evidence, but rather repeats, at times verbatim, the narrative of the case stated in Mr. Hish’s pretrial statement. See Ms. Pelsynski’s brief at 23-25. Ms. Pelsynski notes that the trial court’s findings that Ms. Pelsynski purchased the Property with the intent to flip it for a profit, that the parties’ romantic relationship ended in October 2016, and that Mr. Hish began working on the Property in August 2015 have no support in the record, and in some instances contradicts both parties’ testimony. Id.

Our review of the trial transcript and exhibits reveals that Ms. Pelsynski is correct that these particular “facts” are not supported by the trial evidence, and that they do appear to have instead been taken from Mr. Hish’s pre-trial statement. However, because none of these “facts” goes to an element of Mr. Hish’s claim, we deem it harmless error. See Stuyvesant Ins. Co. v. Keystate Ins. Agency, Inc., 218 A.2d 294, 297 (Pa. 1966) (ruling that incorrect factual finding did not merit relief where it was not necessary for the verdict).

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never testified that he conveyed to [Ms. Pelsynski] that he would be charging

her for ‘travel expenses,’ or how these charges would be based, and never

testified that [she] agreed to pay for them.” Id. at 27.

Ms. Pelsynski contrasts Mr. Hish’s “sporadic and vague at best”

testimony with her own. Id. at 26. She notes that she “was specific in

adamantly denying” that she had any oral agreement with Mr. Hish, and notes

repeated instances of her denials in the record. Id. at 27-28. She suggests

that her version of events is corroborated by their actions, namely that they

had not a business relationship but a romantic one, cohabiting on the Property

and discussing marriage, and that there was no evidence that Mr. Hish

requested to be paid for his labor until after they broke up. Id. at 28-29.

Although she acknowledges that assessing the credibility of witnesses is

generally left to the fact finder, Ms. Pelsynski claims that this Court should not

defer to the trial court’s findings in this case because the trial court has failed

to “cite any specific testimony, exhibits, or other basis for its credibility

determinations.” Id. at 29.

We agree with Ms. Pelsynski that the trial court’s opinion and verdict is

scant on details explaining why it found that the parties had an oral contract

regarding Mr. Hish’s work on the Property, or precisely what the terms of the

agreement were. In supporting its conclusion that a contract existed, the

court stated only as follows, with no reference to particular testimony or

exhibits:

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In the instant matter, there was a valid oral contract. After purchasing the [Property] for the purposes of flipping the home for profit, [Ms. Pelsynski] specifically requested that [Mr. Hish] perform significant remodeling and Plaintiff would receive full payment for all his labor costs and materials at the time of the sale of the home. This request was an offer to which [Mr. Hish] accepted by commencing the demolition of the interior of the home. The consideration, in other words, the bargained for exchange of value between both parties, would be the payment of the labor costs and material in exchange for [Mr. Hish’s] contracting services. Thus, as all elements of a contract formation are present, [Mr. Hish] and [Ms. Pelsynski] had established a binding contract.

Opinion and Verdict, 1/15/20, at 4.5

Yet, as noted above, this Court’s role is to review the evidence offered

at trial in the light most favorable to Mr. Hish, giving him all reasonable

inferences and rejecting all unfavorable inferences, and deciding whether it is

sufficient to support the trial court’s finding that the parties entered into an

oral contract. See Landis, supra at 34.

Mr. Hish testified that a few weeks after he and Ms. Pelsynski had begun

dating, they agreed upon a business arrangement. See N.T. Trial, 11/4/19,

at 6. He performed an initial inspection of the Property, discussed with her

“different things wrong about the house,” and gave her a first estimate of

“around 50,000” dollars. Id. at 6, 15. After they discovered “all the rot and

everything,” the estimate went up to $90,000. Id. at 15. Ms. Pelsynski opted

5 The trial court’s findings as to the terms of the agreement were not further elucidated in its Pa.R.A.P. 1925(a) opinion. Nonetheless, the court did therein make it clear that it found Mr. Hish to be credible and Ms. Pelsynski to be incredible. See Statement of Reasons, 5/8/20, at 1.

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not to agree to a single price for the entire job. Id. at 73-74. Instead, the

parties came to understandings as to exactly what work Mr. Hish would

perform “through conversations and estimates” that arose from at least ten

joint inspections of the Property. Id. at 7-8. The parties agreed that Mr. Hish

would supply the labor, while Ms. Pelsynski would furnish the materials. Id.

at 15. Mr. Hish advised Ms. Pelsynski that his hourly rate was $25,6 and she

agreed to pay him at a later date when she came into some money. Id. at

15-16. Indeed, in 2016, Ms. Pelsynski told Mr. Hish “I know I owe you a lot

of money and I’m going to pay you, don’t worry.” Id. at 17. When she still

had not paid him for labor after he performed over 1,700 hours of work, Mr.

Hish terminated the arrangement, sent her an invoice detailing his labor costs

and unreimbursed expenses. Id. at 14, 23. Mr. Hish offered a copy of the

invoice into evidence, and discussed how the work had been performed in

accordance with their agreement. See id. at 8-14; Plaintiff’s Exhibit 2. The

total amount of unpaid labor was $45,350. See Plaintiff’s Exhibit 2 at 10.

Further, he had fronted $5,140 for materials for which Ms. Pelsynski had not

reimbursed him.7 See id.; N.T. Trial, 11/4/19, at 33.

6 Mr. Hish indicated that he was “giving her a break” at that rate, as he normally charged $50 to $100 per hour. N.T. Trial, 11/4/19, at 73.

7 The invoice lists $6,740 in out-of-pocket materials expenses; however, Mr. Hish acknowledged that a $1,600 item was “a typo.” N.T. Trial, 11/4/19, at 33. In rendering its verdict, the trial court omitted that item, reaching a total of $5,140 for materials. See Statement of Reasons, 5/8/20, at 2.

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Applying our standard of review to this trial evidence, we conclude that

trial court permissibly found that Ms. Pelsynski agreed to pay Mr. Hish $25 per

hour to perform repairs and reconstruction work on the Property detailed in

Mr. Hish’s invoice, as well as for the necessary materials. There was a mutual

understanding, consideration, and sufficiently clear terms “to provide the basis

for providing an appropriate remedy.” United Envtl. Grp., Inc., supra at

963 (cleaned up). Thus, we must affirm the trial court’s finding that Ms.

Pelsynski agreed to pay Mr. Hish for labor and materials.

Conversely, we find no evidence to support the trial court’s finding that

Ms. Pelsynski agreed to pay Mr. Hish for his travel expenses.8 While the cost

of gas for his truck likely figured into his whole-job estimates of $50,000 and

$90,000, as noted above, Mr. Hish testified that Ms. Pelsynski declined to

agree to such an arrangement. Yet Ms. Pelsynski opted not to agree to a flat

price. See N.T. Trial, 11/4/19, at 73-74. As detailed above, Mr. Hish testified

8 Ms. Pelsynski did not specifically reference travel expenses in her post-trial motion or her Pa.R.A.P. 1925(b) statement. However, she did contend that the trial court erred in finding that she had entered into a contract to pay Mr. Hish for his claimed labor and expenses, and complained that the trial court’s lump-sum verdict failed to specify how it reached its number. See Motion for Post-Trial Relief, 1/24/20, at 2-3; Statement of Matters Complained of on Appeal, 4/30/20, at 1-2. The certified record confirms that the trial court indicated for the first time that its verdict included travel expenses when it issued its Pa.R.A.P. 1925(a) statement for this Court. Accordingly, we do not deem Ms. Pelsynski to have waived her challenge to the propriety of an award of travel expenses, which she did contest at trial. See N.T. Trial, 11/4/19, at 56.

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regarding her agreement to pay for labor and materials. As to travel

expenses, Mr. Hish merely confirmed that he requested them in his invoice

and explained how he arrived at the figure of $3,943.20.9 Id. at 18. However,

Mr. Hish did not testify, or otherwise offer evidence, that the oral contract he

entered into with Ms. Pelsynski included reimbursement for travel expenses.

Further, the trial court’s findings as to the terms of parties’ agreement

extended only so far as the costs of materials and Mr. Hish’s labor. See

Opinion and Verdict, 1/15/20, at 4 (concluding that the consideration

supporting the agreement “would be payment of the labor costs and material

in exchange for [Mt. Hish’s] contracting services”); id. (“[Ms. Pelsynski]

indicated that she would pay [Mr. Hish] in full for his labor and materials which

she has failed to do.”).

“Damages for a breach of contract should place the aggrieved party in

as nearly as possible in the same position it would have occupied had there

been no breach.” Ely v. Susquehanna Aquacultures, Inc., 130 A.3d 6, 10

(Pa.Super. 2015). Since the parties’ agreement did not include payment of

Mr. Hish’s travel expenses, he would not have received them even if Ms.

Pelsynski had fully performed her contractual obligations. As such, the award

of travel expenses does not place Mr. Hish in the same position he would have

9 The calculation involved the number of miles he put on his truck, which gets thirteen miles to the gallon, and an average fuel price of $2.65 per gallon. See Plaintiff’s Exhibit 2 at 8.

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been in had there been no breach. Therefore, we conclude that the award of

$3,943.20 in travel costs to Mr. Hish must be deducted from the verdict.

Accord Creighan v. City of Pittsburgh, 132 A.2d 867, 873 (Pa. 1957)

(holding that when the legally-proper amount of judgment is apparent from

the record, a case may be remanded with a direction for entry of judgment

rather than ordering a new trial).

Accordingly, we vacate the March 16, 2020 judgment, reverse the order

denying Ms. Pelsynski’s post-trial motion to the extent that she challenged the

award of $54,433.20 in damages for breach of contract, affirm the order in all

other respects, and remand for entry of a verdict and judgment consistent

with this memorandum.

Judgment vacated. Order denying post-trial motion affirmed in part and

reversed in part. Case remanded for further proceedings consistent with this

memorandum. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 2/16/21

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