J.T. Thomas Homes v. Destefano, A.

• Court: Superior Court of Pennsylvania
• Decided: May 15, 2026
• Docket: 448 WDA 2025
• Status: Unpublished
• Author: Beck

Opinion

J-A02037-26

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

J.T. THOMAS HOMES, INC., A : IN THE SUPERIOR COURT OF PENNSYLVANIA CORPORATION : PENNSYLVANIA : Appellant : : : v. : : : No. 448 WDA 2025 ANTHONY J. DESTEFANO AND KELLY : B. DESTEFANO, HUSBAND AND WIFE :

Appeal from the Judgment Entered March 17, 2025 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-20-7355

BEFORE: STABILE, J., MURRAY, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED: May 15, 2026

Appellant, J.T. Thomas Homes, Inc. (“J.T. Thomas Homes”), appeals

from the judgment entered against it by the Allegheny County Court of

Common Pleas (“trial court”) in favor of Appellees, Anthony J. DeStefano and

Kelly B. DeStefano (together, the “DeStefanos”) following a nonjury trial.

Each party brought crossclaims for breach of their April 8, 2019 contract, in

which J.T. Thomas Homes agreed to construct, and the DeStefanos agreed to

purchase, a custom, new-construction residential home in Upper St. Clair

Township (hereinafter, the “Contract”).1 Upon review, we affirm.

Facts and Procedural History

____________________________________________

1 The Contract was admitted at trial as J.T. Thomas Homes’ Exhibit 10 and the DeStefanos’ Exhibit 1. We cite directly to the contract for ease of review. J-A02037-26

Pursuant to the Contract, in exchange for $576,000, J.T. Thomas Homes

agreed to construct a new single-family dwelling on a lot separately purchased

by the DeStefanos in the Fox Chase II development. Contract, ¶¶ 1, 5(A),

11. The home was to be custom built to the “Plans and Specification”

described in paragraph one of the Contract, which included architectural

drawings prepared by architect Bob Stevens and a “Description of Material”

incorporated as exhibits into the Contract. Id., ¶ 1. The DeStefanos financed

the purchase by obtaining a construction loan from Washington Financial Bank

(“Bank”). A payout schedule attached to the Contract specified the stages of

construction and corresponding draw due upon J.T. Thomas Homes’

completion of each stage, subject to review and certification of work by the

DeStefanos and the Bank. See id., ¶¶ 5, 11, 12, & Exhibit C.

J.T. Thomas Homes represented and warranted that it was “fully

experienced and properly qualified as an expert in residential construction of

the type described in the Plans and Specifications and that it is properly

equipped, organized and financed to perform such work.” Id., ¶ 2. It also

promised to “at all times exert its best efforts to complete construction at the

earliest possible time and will at all times furnish sufficient labor and materials

to assure the most efficient and expeditious construction progress giving due

regard for the highest quality of workmanship.” Id., ¶ 4. It provided a one-

year express warranty “against any loss or damage arising from any defects

in materials or workmanship” for one-year post-occupancy, and disclaimed

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any other express, implied, or oral warranties. Id., ¶ 24. The DeStefanos or

their agent had the “right to inspect the job from time to time,” and “[s]hould

any contract violations be noted,” the DeStefanos agreed to promptly notify

J.T. Thomas Homes in writing. Id., ¶ 15.

The Contract further addressed defaults in performance by both parties.

If the DeStefanos failed to pay J.T. Thomas Homes within seven days of the

payment’s due date, the Contract entitled J.T. Thomas Homes to apply all

money paid and proceed with a civil action for breach of contract, or, if

“construction is complete in all respects,” to recover the balance of the “Final

Purchase Price” plus twelve percent interest. Id., ¶ 18(A). The Contract

refers to three events constituting a default by J.T. Thomas Homes: (1) failure

“to perform the work diligently,” a defined contractual term of “an unexcused

cessation of work for seven or more days”; (2) “damage or defect,” which are

undefined terms; or (3) failure “to perform the work or repair or replace the

defect.” Id., ¶ 18(B). Upon any of these events, the DeStefanos, at their

“sole option,” may “recover the full cost of the completion, repair or

replacement or to set off the same from any sums otherwise due” to J.T.

Thomas Homes thereunder “or proceed with an action at law.” Id.

The trial court found, and the certified record indicates, that the

relationship between Jeff Thomas (“Thomas”), the owner of J.T. Thomas

Homes, and the DeStefanos deteriorated several months after the project

began, resulting in communications that were “increasingly contrary to a

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productive contractor/client relationship.” Trial Court Opinion, 12/23/2024,

at 5. Although the Contract required the DeStefanos to timely make periodic

selections to avoid construction delays, the DeStefanos delayed making their

selections. Id. By mid-February 2020, they “largely stopped communicating

with J.T. Thomas Homes and its vendors to further selections” and cancelled

an order with an appliance vendor. Id.

J.T. Thomas Homes received the first five progress payments, but the

DeStefanos refused to authorize the final three draws totaling $201,635

because of their increasing dissatisfaction with J.T. Thomas Homes and its

work. Id. at 6-9. J.T. Thomas Homes, through Thomas and its counsel,

requested payment from the DeStefanos several times, and eventually

initiated litigation in July 2020. Id. at 6. Despite the strained relationship

and pending litigation, J.T. Thomas Homes continued its work on the home for

a time.2 Id. Ultimately, J.T. Thomas Homes did not finish the job and the

DeStefanos hired other contractors to complete work on the home. Id.

Relevant to this appeal, J.T. Thomas Homes alleged that the DeStefanos

breached the Contract by failing to make timely selections and to pay the final

draws. The DeStefanos brought counterclaims against J.T. Thomas Homes,

alleging breach of contract, breach of implied warranty, and violations of the

Unfair Trade Practices Consumer Protection Law (“UTPCPL”).

2 In March 2020, the COVID-19 pandemic temporarily halted construction.

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Following a six-day bench trial, on December 23, 2025, the trial court

entered a nonjury verdict awarding $9,406 to the DeStefanos and against J.T.

Thomas Homes. In an accompanying opinion, the trial court explained that

the DeStefanos’ failure to make timely selections was not a material breach

and would have only excused the timetable under which J.T. Thomas Homes

was to complete the project. See Trial Court Opinion, 12/23/2024, at 8. The

trial court found that J.T. Thomas Homes did not bring the home to final

completion—the standard triggering full payment under the Contract—but it

did complete work totaling $165,575. Id. at 6-9. Specifically, it completed

the work detailed in the sixth progress payment relating to interior walls; most

of the work specified in the seventh progress payment relating to trim, except

for installing the garage door and granite; and some of the work required to

receive the final draw. Id.

The trial court decided that most of “the lapses in workmanship” by J.T.

Thomas Homes did not excuse the DeStefanos from its contractual obligation

to pay for this work because the contractor could have corrected such lapses

“through punch list and repair steps” if this had been provided by the

DeStefanos. Id. at 7. However, the trial court decided that J.T. Thomas

Homes’ installation of the roof and the mortar joining the brick exterior “were

fundamentally defective without viable correction,” which triggered the

DeStefanos’ option in paragraph 18 of the Contract “to set off repair or

replacement from any sums otherwise due to J.T. Thomas Homes.” Id. at 7.

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Specifically, the trial court found that the DeStefanos’ evidence

established: (1) “that the roofing was defective and constructed in a manner

out of compliance with recommendations and warranty specifications”; (2) the

repairs specified in M&Y Remodeling LLC’s April 16, 2021 invoice (a total roof

replacement) were required; and (3) the repairs cost the DeStefanos

$36,521.00. Id. Additionally, the DeStefanos’ evidence

established that the entire home must be re-mortared. The testimony of Jeff Dzikoswki of Ski Masonry LLC on corrective action required and associated cost was compelling. The mortar work performed by J.T. Thomas Homes is full of voids. The photos plainly show sloppy work inconsistent with a high-end custom home. The haphazard workmanship is beyond a “messy mortar strike” requested or approved by [the DeStefanos]. The remediation of the defective work requires chiseling out existing mortar and pointing all brick on the entire house. This extensive repair work is at a cost of $138,460.00.

Id. at 7-8.

The trial court ruled that J.T. Thomas Homes’ improper installation of

the roof and mortar constituted “defective workmanship” in material breach

of the Contract, which in turn excused the DeStefanos’ complete performance

of its duty to pay J.T. Thomas Homes for its work. Id. at 8. Because damages

for breach of contract seeks to return the parties to the position they would

have been in but for the breach, however, the trial court decided that the

DeStefanos could not withhold payment from J.T. Thomas Homes for “proper

work actually completed” while also seeking the “full amount of cover

damages,” i.e. the cost of correcting the defects by other contractors. Id.

The court found that the costs to repair the defective roof work and mortar

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work totaled $174,981. Id. at 9. When offset by the amount the DeStefanos

would have paid J.T. Thomas Homes for the work it properly completed,

$9,406 in damages remained. Id. at 8-9. The trial court concluded that the

DeStefanos proved their entitlement to damages of $9,406, measured by the

cost of repair, to compensate them for J.T. Thomas Homes’ provision of

defective work in breach of the Contract and the warranty. Id.

Each side filed post-trial motions. In a series of orders entered on March

6, 2025, the trial court denied J.T. Thomas Homes’ post-trial motion in its

entirety and granted the DeStefanos’ motion only to the extent it molded the

verdict to reflect pre-judgment interest for a total of $12,381.92. After the

DeStefanos sought entry of judgment for this amount, J.T. Thomas Homes

appealed to this Court.

Issues on Appeal

J.T. Thomas Homes raises the following issues on appeal:

1. Whether the trial court erred in finding J.T. Thomas Homes liable to the DeStefanos’ counter-claim for mortar damage based solely on the aesthetic appearance of the mortar when a claim related to the masonry’s appearance had not been pled and the only admitted evidence was that the DeStefanos had approved a representative sample of the mortar with the same appearance prior to installation[?]

2. Whether the trial court erred in considering the inadmissible “expert” testimony of Ski Masonry at trial after granting J.T. Thomas Homes’ Motion for Limine, excluding any expert testimony by Ski Masonry and ruling that “Ski Masonry may be offered as a fact witness only[?]”

3. Whether the trial court erred in permitting the DeStefanos to submit evidence of alleged roof defects where the evidence

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regarding the defects was destroyed when the DeStefanos replaced the entire roof without notice to J.T. Thomas Homes, thereby preventing J.T. Thomas Homes from having a roofing expert inspect the roof and develop a rebuttal opinion[?]

4. Whether the trial court erred in its application of the [UTPCPL §] 201-2(4)(xvi) without any evidence or expert testimony supporting a finding that the work performed on the Project was below the industry standard or the standard required under the Contract[?]

J.T. Thomas Homes’ Brief at 6-7 (party designations substituted).

Standard of Review

In reviewing these issues, we are mindful of the following:

Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial court must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law. However, where the issue concerns a question of law, our scope of review is plenary. The trial court’s conclusions of law on appeal originating from a non-jury trial are not binding on an appellate court because it is the appellate court’s duty to determine if the trial court correctly applied the law to the facts of the case.

El-Gharbaoui v. Ajayi, 260 A.3d 944, 958 (Pa. Super. 2021) (citation

omitted). Because it is the factfinder’s job to assess credibility and conflicts

in evidence in the first instance, our standard of review prohibits this Court

from reexamining the factfinder’s weight and credibility determinations or

substituting our judgments for those of the factfinder. Gutteridge v. J3

Energy Grp., Inc., 165 A.3d 908, 916 (Pa. Super. 2017) (en banc). Instead

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of considering whether we would have reached the same result, we decide

whether the trial court reasonably reached its result based upon the evidence

it found credible. Id.

We review specific challenges to the trial court’s admission or exclusion

of evidence for an abuse of discretion. Parr v. Ford Motor Co., 109 A.3d

682, 690–91 (Pa. Super. 2014) (en banc). These questions “lie within the

sound discretion of the trial court,” and absent a clear abuse, we will not

reverse. Id. at 690 (citation omitted).

An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. In addition, to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Id. at 690-91 (cleaned up). We also apply an abuse-of-discretion standard

to the trial court’s discovery rulings, including rulings on claims of spoliation.

Marshall v. Brown’s IA, LLC, 213 A.3d 263, 267 (Pa. Super. 2019).

Interpreting a statutory provision presents a question of law, which we

review de novo with a plenary scope. Halpern v. Ricoh U.S.A., Inc., __

A.3d __, 2026 WL 898877, at *6 (Pa. 2026). We adhere to the tenets of the

Statutory Construction Act, 1 Pa.C.S. §§ 1501-1991, including its directive “to

ascertain and effectuate the intention of the General Assembly” by examining

the plain, non-ambiguous statutory language as written. 1 Pa.C.S. § 1921(a),

(b).

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Masonry Work

J.T. Thomas Homes first argues, from a procedural standpoint, that the

trial court erred by finding the masonry work defective based upon its

aesthetic appearance because the DeStefanos premised their counterclaim

upon the defective function of the mortar, not its appearance. J.T. Thomas

Homes’ Brief at 19-32. It cites cases setting forth the general proposition that

a litigant must prove its case with evidence that corresponds to averments

alleged. See, e.g., id. at 24 (citing Pierson v. London, 156 A. 719, 720 (Pa.

1931) (“The doctrine of variance requires a plaintiff to make out a case by

proofs in substantial correspondence with the averments of the statement of

claim.”). By sua sponte interjecting aesthetics as an issue, J.T. Thomas

Homes contends that the trial court deprived it of the opportunity to object or

to present evidence that disproved the altered issue and awarded the

DeStefanos relief for a claim that they did not plead. Id. at 28-32. Instead

of finding that the mortar’s function might fail and cause damages—the defect

for which the DeStefanos sought relief in their counterclaim but did not prove

at trial—J.T. Thomas Homes argues that the trial court found a defect in the

workmanship solely based upon the affront to the trial judge’s subjective taste

and aesthetic sensibilities. Id. at 19-20.

It further claims that, substantively, the trial court erred by finding that

the mortar was defective based upon its appearance as the DeStefanos’

admitted that they requested a mortar strike with a rough appearance,

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reviewed and approved a mockup of the mortar strike, and never complained

that the mortar did not match the mockup. Id. at 33-34. In other words,

what the trial court describes as a sloppy appearance is actually a feature of

the atypical style of mortar strike that the DeStefanos selected for their

custom home to satisfy their own aesthetic taste, not a bug in the installation

impacting the function. See id. at 19-22.

Neither argument is convincing. By attempting to cabin the scope of

the counterclaim’s averments and the court’s factual findings to entirely

separate categories of function versus aesthetics, J.T. Thomas Homes misses

the point that in this case, function and aesthetics are interrelated both as

pled and as proven by the DeStefanos.

The DeStefanos’ counterclaim averred that J.T. Thomas Homes

“incorrectly installed the brick façade and mortar joints, which has resulted in

improperly struck mortar joints throughout the entire brick façade”; this

incorrect installation constituted a breach of the parties’ Contract; and as a

result of this and other breaches the DeStefanos suffered damages, “including

the cost of correcting [J.T. Thomas Homes’] defective work, installing work

consistent with the Contract and their selections and completing the

construction of the home, plus interest.” Amended Answer, New Matter and

Counterclaim, 7/1/2021, at ¶¶ 129(f), 130. This is exactly what the trial court

found. The defect at issue—the improper striking of the mortar—is visually

evident from the sloppy work and many voids depicted by the photographs

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and observed and described by the DeStefanos’ witnesses. See Trial Court

Opinion, 12/23/2024, at 8; see also N.T., 7/17-25/2024, at 633-35, 742-58.

Nothing about the trial court’s rationale indicates that it found the work to be

sloppy based upon the aesthetic style; instead, in context, the trial court’s

reference to “the sloppy work inconsistent with a high-end custom home,”

refers to the function of the mortar, which “is full of voids.” See Trial Court

Opinion, 12/23/2024 at 8. J.T. Thomas Homes even acknowledged this

understanding of the trial court’s rationale in its post-trial motion and brief.

See Post-Trial Motion, 12/27/2024, ¶ 21 (commenting that it appears that the

trial court “is saying that while the DeStefanos requested a particular strike,

they did not request a defective strike”); Post-Trial Brief in Support,

12/27/2024, at 4 (Conceding “that whatever mortar strike [the DeStefanos]

purchased, they are entitled to mortar that is functional. That is, holds the

bricks together and provides a watertight exterior to the home.”). The trial

court’s finding that the installation of the mortar was “fundamentally defective

without viable correction” is entirely consistent with the facts and claim pled

(and proved) by the DeStefanos. See id.; c.f. Anflick v. Gruhler, 46 A.2d

161, 162 (Pa. 1946) (material variance between proof and pleadings because

appellant sought “to recover, not under the contracts alleged but under

another which was not pleaded”).

Further, while J.T. Thomas Homes asserts that “it is difficult to overstate

the extent to which [its] trial preparation and presentation of the case would

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have been different if it knew that the appearance of the mortar strike would

be at issue,” J.T. Thomas Homes’ Brief at 33, this argument strains credulity.

The record, in fact, reflects that J.T. Thomas Homes defended against the

claim by maintaining that it satisfied the standards established by the parties’

contract and ordinary workmanship by applying the atypical but legitimate

style of strike requested and approved by the DeStefanos. See N.T., 7/17-

25/2024, at 205-09, 768-69 (collective testimony from Thomas and his

residential construction expert, Gary Allen (“Allen”), that J.T. Thomas Homes

simply applied an unusual but standard mortar joint style featuring an

extruded or squeezed appearance that was requested and approved by the

DeStefanos and did not need to be redone).

To the extent that J.T. Thomas Homes argues that the DeStefanos’

selection and approval of an atypical mortar style bars them from claiming a

defect in workmanship, it does not cite to, or base this argument upon, a

particular contractual clause. See J.T. Thomas Homes’ Brief at 33-34; J.T.

Thomas Homes’ Post-Trial Motion, 12/27/2024, ¶¶ 16-21, 27-29. Instead, its

argument boils down to a mere challenge to the trial court’s credibility

determinations and weighing of the evidence.

Beyond asserting that the company’s installation of a waterproof board

behind the brick mitigated any water infiltration, Thomas offered very little to

defend the company’s work and focused upon discrediting the veracity of

DeStefanos’ “ridiculous complaint.” See N.T., 7/17-25/2024, at 206-07.

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Allen testified that the mortar did not need to be removed because it was a

standard strike, the waterproof board behind it would act as a moisture

barrier, and if there were concerns about waterproofing, a waterproof sealant

could be applied. Id. at 765-70. Significantly, even Allen testified that he

would “probably” apply the sealant regardless of specific concerns regarding

water infiltration, undercutting Thomas’ testimony that the DeStefanos’

concerns about water infiltration were wholly unfounded. Id. at 769.

The DeStefanos’ witnesses, on the other hand, testified that the voids

(i.e., the holes) in between the bricks were the defect at issue. See id. at

634 (Anthony DeStefano’s testimony that the “main real issue is the areas

where there’s no mortar. Yes, the excess is terrible as well, but the areas

where there’s no mortar, there’s nothing there to prevent water from getting

directly behind ... the brick.”). Jeff Dzikowski (“Dzikowski”) of Ski Masonry

testified that Striking the mortar is important to avoid water from entering the

brick, and when he inspected the property for the purpose of providing a quote

for proposed repair work, he observed plainly visible voids “really everywhere

in between the bricks.” Id. at 748. It appeared to him that the “brick was

laid and never properly struck,” meaning that the “brick layers had laid the

joint, the mortar, squeezed the brick down and then just cut the mortar off

and never struck it.” Id. at 742, 744. He described the actions his company

would take “to rectify the issue with the un-struck mortar joints” (chiseling

out the mortar and reapplying it throughout the entire exterior) and the price

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his company quoted for performing this work ($138,460). Id. at 750, 755.

He specifically testified, without objection, that even if the DeStefanos wanted

a rough extruded look, there “are ways to make it look rough without

compromising the integrity of the mason work,” and that spraying a water

sealant periodically to maintain the integrity of the mortar was not possible in

this case. Id. at 797.

Presented with conflicting testimony, the trial court acted within its

discretion in finding that the defect was not simply inherent in the style or that

the DeStefanos acquiesced to this manner of installation. We cannot

undermine the trial court’s factual findings that enjoy record support. The

trial court had discretion to assess credibility and resolve conflicts in evidence,

and we cannot simply substitute our judgment for that of the trial court on

this issue. See Gutteridge, 165 A.3d at 916. Thus, no relief is due on the

first issue.

Admission of Dzikowski’s Testimony

In its second issue, J.T. Thomas Homes argues that because the trial

court referred to the testimony of Jeff Dzikowski of Ski Masonry as

“compelling,” it shows that the court improperly relied upon Dzikowski’s

testimony as expert testimony despite ruling that Dzikowski could testify only

as a fact witness. J.T. Thomas Homes’ Brief at 35-38. J.T. Thomas Homes

argues that as a result, insufficient evidence remains to support the trial

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court’s findings in favor of the DeStefanos regarding masonry issues, requiring

this Court to reverse the award regarding the masonry issues. Id. at 37.

As presented, the precise legal nature of this claim is unclear. In

response to the DeStefanos’ argument that the issue presents an unpreserved

challenge to the sufficiency of the evidence,3 J.T. Thomas Homes insists that

it is not seeking sufficiency review and is instead challenging the court’s

“evidentiary rulings—namely, its decision to afford expert weight and status

to testimony offered by lay witnesses.” J.T. Thomas Homes’ Reply Brief at 20.

Taking J.T. Thomas Homes at its word, we examine its argument

through the lens of an evidentiary challenge, which, as stated, we review for

an abuse of discretion. Parr, 109 A.3d at 690–91. Construed in this way, we

examine whether the trial court abused its discretion by admitting Dzikowski’s

testimony that the masonry joints were improperly struck over J.T. Thomas

Homes’ objections that such testimony exceeded fact testimony. While J.T.

Thomas Homes cites cases to support general legal concepts regarding the

distinction between lay and expert testimony, it does not cite to the Rules of

Evidence or Civil Procedure or offer any meaningful legal analysis to support

3 In the very first line of J.T. Thomas Homes’ summary of the argument, it proclaims that “[t]his is a case about the sufficiency of admissible evidence.” J.T. Thomas Homes’ Brief at 8. The DeStefanos highlight this assertion and argue that J.T. Thomas Homes waived a challenge to the sufficiency of the evidence by not moving for a nonsuit or a directed verdict before raising this claim in its post-trial motion. The DeStefanos’ Brief at 8 (citing Haan v. Wells, 103 A.3d 60, 68 (Pa. Super. 2014)).

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its argument that Dzikowski’s testimony exceeded the scope of a lay witness

and that the trial court abused its discretion in allowing such testimony. See

J.T. Thomas Homes’ Brief at 36-37. It simply asserts, without support, that

“[k]nowledge of mortar strikes and the construction thereof lies outside the

realm of lay knowledge, requiring a special skillset to perform and opine upon,

thus necessarily requiring the opinion of an expert in order to establish that a

mortar strike is defectively constructed and prove causation of damages.” Id.

The line between expert and lay testimony when a witness possesses

specialized knowledge can be difficult to discern. See Deeds v. Univ. of

Pennsylvania Med. Ctr., 110 A.3d 1009, 1017 (Pa. Super. 2015); see also

Commonwealth v. Yocolano, 169 A.3d 47, 63 (Pa. Super. 2017) (deciding

that testifying medical professionals “blurred the line between factual, lay-

witness observations and expert testimony requiring specialized knowledge”).

On the one hand, the “standard for qualifying an expert witness is a liberal

one; the witness need only have a reasonable pretension to specialized

knowledge on a subject for which expert testimony is admissible.” Risperdal

Litig. W.C. v. Janssen Pharms., Inc., 174 A.3d 1110, 1122 (Pa. Super.

2017). As the purpose of expert testimony is to assist the trier of fact with

information which the ordinary layman does not possess, an expert need only

“possess more knowledge than is otherwise within the ordinary range of

training, knowledge, intelligence or experience.” Miller v. Brass Rail

Tavern, Inc., 664 A.2d 525, 528 (Pa. 1995).

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On the other hand, there is no litmus test for what constitutes fact

testimony as opposed to opinion. Deeds, 110 A.3d at 1017. “Fact testimony

may include opinion or inferences so long as those opinions or inferences are

rationally based on the witness’[] perceptions and helpful to a clear

understanding of his or her testimony.” Id. That a witness has technical

expertise does not ipso facto convert a witness testifying about facts relating

to technical knowledge into a witness offering an expert opinion based upon

those facts. See id. at 1019 (ruling in medical malpractice suit that the trial

court did not err by permitting a treating physician testifying as a fact witness

to discuss the basis for his course of medical treatment to the patient,

including his opinion derived from his review of her medical records that she

did not have the medical condition at issue when she visited the hospital two

days earlier, because he did not render any opinion as to whether the hospital

violated a standard of care by failing to diagnose the condition during her first

visit).

[I]f all the primary facts can be accurately described to a jury and if the jury is as capable of comprehending and understanding such facts and drawing correct conclusions from them as are witnesses possessed of special training, experience or observation, then there is no need for the testimony of an expert.

Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 108 (Pa. Super. 2011)

(citation omitted).

Upon review of the certified record and J.T. Thomas Homes’ argument,

we discern no abuse of discretion in the trial court’s admission of Dzikowski’s

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testimony. The record reflects that in response to J.T. Thomas Homes’ motion

in limine seeking to exclude Dzikowski from testifying as an expert, the

DeStefanos asserted that he would testify only as a fact witness. N.T., 7/17-

25/2024, at 40. At the inception of his testimony, the DeStefanos proffered

that Dzikowki would testify regarding his observations of the masonry on the

day he examined the home’s exterior for the purpose of providing a proposal

to fix any issues with the masonry, as well as the proposed work and price.

Id. at 737. The trial court overruled J.T. Thomas Homes’ objection that only

an expert could provide testimony as to value. Id. at 738-39. J.T. Thomas

Homes renewed its objection several more times, claiming that Dzikowski’s

descriptions of issues with the brick and proposed actions combined with his

rationale crossed into expert territory. Id. at 742-43, 745, 748-49, 755-56.

The trial court allowed the testimony, ruling that it was within the scope of his

firsthand factual knowledge obtained to evaluate a proposed job. Id. It

sustained some of J.T. Thomas Homes’ objections, however, striking

Dzikowski’s testimony that was not about this specific project and admitting

only his quote but not a report he authored. Id. at 747, 753-54.

On appeal, J.T. Thomas Homes’ argument is tied to the inability of

Dzikowski to opine as to whether the installation was “properly performed to

industry standard or caused any potential damages.” J.T. Thomas Homes’

Brief at 37. Yet to trigger the default provisions under the parties’ particular

agreement, the DeStefanos simply had to prove the existence of a defect and

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the cost of its chosen action of “repair, completion, or replacement.” See

Contract, ¶ 18. The language of the Contract left room for the DeStefanos to

prove a defect under a common understanding of imperfections in the work.

The home was new construction, meaning that only J.T. Thomas Homes

performed the work prior to the replacement. The evidence established that

the alleged defect persisted throughout the exterior and was visible to the

naked eye. Having visited the property to provide a quote for the professional

services his company would provide if hired to repair the mortar, Dzikowski

testified to what he saw, the actions that he would take if hired to fix the

defect, and his rationale.

Notwithstanding the imprecise line between expert and lay testimony,

J.T. Thomas Homes has not established that the trial court abused its

discretion in drawing the line where it did in its evidentiary rulings in this case

and then relying upon the admitted testimony in arriving at its conclusion

regarding the defects in masonry work. See Deeds, 110 A.3d at 1017-19;

Brandon, 34 A.3d at 108.

Spoliation

In its third issue, J.T. Thomas Homes argues that the trial court erred

by allowing the DeStefanos to admit evidence at trial concerning alleged

defects in the roof and refusing to sanction the DeStefanos for replacing the

roof without notice—an alleged spoliation of evidence. J.T. Thomas Homes’

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Brief at 38-44. J.T. Thomas Homes argues that the trial court committed

myriad errors in this regard, including:

• initially providing no detail regarding it did not impose sanctions;

• giving this issue short shrift in a footnote;

• overemphasizing J.T. Thomas Homes’ firsthand knowledge of the roof given that its expert lacked access to the roof for an inspection;

• not considering that its only opportunity for its expert to inspect the roof was thwarted by winter conditions;

• relying on the existence of photographs that are not equivalent to in person access;

• ignoring that J.T. Thomas Homes was barred from the property once it had details about the DeStefanos’ complaints; and

• failing to find that the DeStefanos had a high degree of intentional fault combined with a very prejudicial impact of spoliation.

See J.T. Thomas Homes’ Brief at 38-44.

“‘Spoliation of evidence’ is the failure to preserve or the significant

alteration of evidence for pending or future litigation.” Parr, 109 A.3d at 701.

If evidence relevant to a lawsuit is lost or destroyed, the trial court has

discretion to impose a range of sanctions against the spoliator, including entry

of judgment, exclusion of evidence, monetary penalties (such as fines and

attorney fees), and adverse inference instructions to the jury. Marshall, 213

A.3d at 267.

When deciding whether a spoliation sanction is warranted, the trial court

considers three factors: “(1) the degree of fault of the party who altered or

destroyed the evidence; (2) the degree of prejudice suffered by the opposing

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party; and (3) whether there is a lesser sanction that will avoid substantial

unfairness to the opposing party and, where the offending party is seriously

at fault, will serve to deter such conduct by others in the future.” Mount

Olivet Tabernacle Church v. Edwin L. Wiegand Div., 781 A.2d 1263,

1269-70 (Pa. Super. 2001), aff’d per curiam, 811 A.2d 565 (Pa. 2002)

(citation omitted). In assessing the degree of fault, the court must consider

“the extent of the offending party’s duty or responsibility to preserve the

relevant evidence, and the presence or absence of bad faith.” Parr, 109 A.3d

at 702 (citation omitted). A party has the duty to retain evidence when a

party knows that litigation is pending or likely and it is foreseeable that

discarding the evidence would prejudice the other party. Marshall, 213 A.3d

at 268.

A party’s “power to control the scene and to exercise authority over the

preservation or destruction of evidence is a relevant factor in determining

responsibility.” Mount Olivet Tabernacle Church, 781 A.2d at 1271.

However, “the scope of the duty to preserve evidence is not boundless.” Id.

At a minimum, in the absence of exigent circumstances, a party should provide

the allegedly responsible party with the opportunity to inspect the evidence.

Id. Ideally, the party should have the opportunity to conduct “a full and

complete investigation, untainted by spoliation,” but the court may also

consider countervailing factors, such as a time-sensitive need of the plaintiff

to correct the problem. Id. (noting that a plaintiff does not have the duty to

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preserve an “unremediated fire scene[]” indefinitely because it poses

“inherent instability and danger”). Likewise, while some prejudice inherently

occurs when the party allegedly responsible is precluded from conducting its

own independent investigation, such prejudice may be tempered by the

party’s ability to cross-examine the plaintiff’s experts and to call its own

experts to render opinions based upon the plaintiff’s evidence. Id. at 1272.

The record reflects that J.T. Thomas Homes presented a motion in limine

to exclude the DeStefanos from introducing any evidence at trial regarding a

defective roof. It claimed therein that the DeStefanos violated its duty to

preserve evidence by replacing the roof without notice after J.T. Thomas

Homes had made them aware of its desire to have an expert inspect the roof.

J.T. Thomas Homes’ Motion in Limine, 9/3/2024, ¶¶ 9-22. In response, the

DeStefanos argued that J.T. Thomas Homes had ample opportunity to inspect

the roof prior to the installation of a new roof in April 2021, which it was

required to do to make their home habitable. DeStefanos’ Response in

Opposition to Motion in Limine, 9/16/2024, ¶¶ 8, 10-18.

After reviewing the parties’ written and oral arguments, the trial court

denied the motion and declined to make a finding of spoliation. N.T., 12/17-

25/2024, at 48. Because J.T. Thomas Homes was the party who performed

the work in the first instance, it distinguished this situation from cases

involving “a critical component that has gone missing” or “a significant

change” preventing “the parties themselves” from knowing “what it looked

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like in the first place.” Id. It also cited, without elaboration, J.T. Thomas

Homes’ opportunity of inspection, access by an expert, and the degree of fault.

Id.

J.T. Thomas Homes raised the issue again in its post-trial motion,

arguing that the trial court erred by allowing evidence of the defective roof

when J.T. Thomas Homes was deprived of its opportunity to have an expert

inspect the roof. J.T. Thomas Homes’ Post-Trial Motion, 12/27/2024, at

¶¶ 44-48. In response to the post-trial motion, the trial court reaffirmed its

earlier ruling, concluding that “no sanction is warranted under the

circumstances of the case,” because “the manner of installation was within

the knowledge” of J.T. Thomas Homes or those acting within its instruction

and “numerous photographs exist depicting buckling and deficiencies in the

roof.” Trial Court Opinion, 12/23/2024, at 7 n.2.

It is apparent that the trial court was persuaded by the DeStefanos’

argument that it had provided ample opportunity for J.T. Thomas Homes to

arrange for an inspection. Nonetheless, J.T. Thomas Homes does not provide

context to, or record citations for, its factual assertions regarding its

opportunity to access the roof, let alone explain why the court’s conclusion in

this regard constituted an abuse of its discretion. See, e.g., J.T. Thomas

Homes’ Brief at 40-41 (failing to explain why its expert purportedly only had

a “single opportunity” to inspect the roof or cite to the record to support its

assertion that the DeStefanos’ counsel promised to schedule a site visit prior

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to any work on the roof). In fact, much of J.T. Thomas Homes’ argument on

appeal is an attempt to argue its spoliation motion to this Court anew as

opposed to providing reasons why the trial court abused its discretion in

declining to award sanctions.

The trial court weighed factors—including J.T. Thomas Homes’

knowledge of its manner of installation, photographic evidence of the alleged

defects, the essential nature of a roof to the habitability of the home, and the

elapse of months between the thwarted winter inspection and the replacement

of the roof—to conclude that no sanctions for spoliation were warranted. That

the trial court did not weigh these factors as J.T. Thomas Homes would have

liked and ultimately failed to impose any sanction does not mean that it

abused its discretion. See, e.g., Mt. Olivet Tabernacle Church, 781 A.2d

at 1273 (holding that trial court’s failure to impose any sanction for spoliation

did not constitute an abuse of discretion; while the court would have acted

within the bounds of its discretion by issuing an adverse inference instruction

to the jury given the some fault by the plaintiff for failing to preserve a fire

scene and some prejudice to the defendant of losing the opportunity to

conduct its own independent investigation, its failure to do so was not so

erroneous as to constitute an abuse of its discretion); Hutchinson v.

Verstraeten, 304 A.3d 1268, 1274–75 (Pa. Super. 2023) (explaining that

attempting to convince this Court that the lower tribunal’s decision was

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contrary to the decision that this Court would have reached falls short of

arguing and establishing an abuse of discretion). No relief is due.

UTPCPL

In its fourth and final issue, J.T. Thomas Homes argues that section 201-

2(4)(xvi) of the UTPCPL requires a deceptive or fraudulent practice, and

having found neither, the trial court erred by finding that it violated the

UTPCPL. J.T. Thomas Homes’ Brief at 44-49. It argues that the trial court’s

finding “creates a slippery slope whereby any finding of defective work under

a construction contract will create a form of strict liability under the UTPCPL.”

Id. at 44. According to J.T. Thomas Homes, the UTPCPL is designed to prevent

fraud and deception, and in the absence of a finding of either, a contractor’s

failure to fulfill a homeowner’s expectations regarding the quality of its work

does not violate the UTPCPL. Id. at 47 (citing Burkholder v. Cherry, 607

A.2d 745, 749 (Pa. Super. 1992)). It claims that Commonwealth v. Burns,

the case relied upon by the trial court, is inapposite on its facts because the

contractor admitted performing substandard work, abandoned the project,

and engaged in a pattern of using the incomplete status of projects to coerce

consumers into paying additional money and not completing the work it had

contractually agreed to perform. Id. at 46-47 (citing Commonwealth v.

Burns, 663 A.2d 308, 311 (Pa. Cmwlth. 1995)). J.T. Thomas Homes argues

that without expert testimony or evidence of fraud or deceptive practices, the

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DeStefanos’ evidence was insufficient to establish that its work on the roof or

mortar failed to meet the industry or contractual standards. Id. at 47.

The DeStefanos contend that J.T. Thomas Homes is attempting to

present an unpreserved challenge to the sufficiency of the evidence.4 The

DeStefanos’ Brief at 8-9. In its reply brief, J.T. Thomas Homes claims the

question before this Court “concerns the proper interpretation of the UTPCPL,”

requiring our de novo review of the statute. J.T. Thomas Homes’ Reply Brief

at 27. On this basis, we will again give J.T. Thomas Homes the benefit of

review, ignoring the parts of its argument that do not pertain to the issue it

claims to be presenting.5 The “UTPCPL is Pennsylvania’s consumer protection

law.” Sereda v. Ctr. City Acquisitions, LLC, 222 A.3d 1161, 1171 (Pa.

Super. 2019). It prohibits “unfair or deceptive acts or practices.” 73 P.S. §

201-2(4); see also id. § 201-3(a) (declaring unlawful certain “[u]nfair

methods of competition and unfair or deceptive acts or practices in the conduct

of any trade or commerce”). The UTPCPL “is a remedial statute that should

4 Alternatively, they assert that the trial court “soundly exercised its discretion.” The DeStefanos’ Brief at 14-15.

5 This requires a fairly generous read of J.T. Thomas Homes’ post-trial motion. The closest it comes to arguing an issue of statute interpretation therein is its argument that the UTPCPL requires an act that constitutes a finding of unfair methods of competition or deceptive practices. See Post-Trial Motion, 12/27/2024, ¶ 41. While we have addressed all of its arguments today on the merits, we remind counsel that appellate issue preservation serves an important function, and it requires specificity, consistency, and close adherence to the applicable standard of review. See Garwood v. Ameriprise Fin., Inc., 240 A.3d 945, 949 (Pa. Super. 2020).

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be construed broadly in order to comport with the legislative will to eradicate

unscrupulous business practices.” Gregg v. Ameriprise Fin., Inc., 245 A.3d

637, 641 (Pa. 2021). To establish a statutory claim under the UTPCPL, a

person must demonstrate that:

(1) they purchased or leased “goods or services primarily for a personal, family, or household purpose”; (2) they suffered an “ascertainable loss of money or property”; (3) the loss occurred “as a result of the use or employment by a vendor of a method, act, or practice declared unlawful by” the [UTPCPL]; and (4) the consumer justifiably relied upon the unfair or deceptive business practice when making the purchasing decision.

Id. at 646 (quoting 73 P.S. §§ 201-8, 201-9.2(a)).

One such unfair method of competition and unfair or deceptive act or

practice is “making repairs, improvements or replacements on tangible, real

or personal property, of a nature or quality inferior to or below the standard

of that agreed to in writing.” 73 P.S. § 201-2(4)(xvi). In a case involving a

public action against a contractor, our sister court rejected the contractor’s

argument that, as a matter of law, its performance of substandard work could

not constitute an unfair or deceptive business practice. Burns, 663 A.2d at

310–11. Unlike Burkholder v. Cherry, wherein the consumer was unable to

prove fraud without representations by the contractor 6 or loss because the

jury found that the contractor constructed the dwelling in a good and

workmanlike manner, the UTPCPL violation at issue in Burns was based upon

6 Burkholder does not specify which subsection of the UTPCPL it relied upon.

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section 201-2(4)(xvi). Id. at 311 (citing Burkholder, 607 A.2d at 749). A

section 201-2(4)(xvi) violation is established, the Commonwealth Court

explained, when “a contractor agreed in writing to perform a contract with

workmanship of good quality but is shown to have performed with

substandard and inferior work.” Id.

In the case at bar, the trial court determined that the DeStefanos met

their burden of establishing a violation of section 201-2(4)(xvi).7 Trial Court

Opinion, 12/23/2024, at 9-10. The trial court found that J.T. Thomas Homes

“agreed to ‘exert its best efforts … to assure the most efficient and expeditious

construction progress giving due regard for the highest quality of

workmanship.” Id. at 9 (quoting Contract, ¶ 4). Having “agreed in writing to

perform a contract with workmanship of good quality,” but performing “with

substandard and inferior work,” the trial court concluded that J.T. Thomas

Homes technically violated section 201-2(4)(xvi). Id. (quoting Burns, 663

A.2d at 310–11). Despite J.T. Thomas Homes’ engagement in an unfair or

deceptive business practice in the technical sense—providing defective

workmanship when installing the roof and mortar that fell short of the written

7 The trial court determined that the DeStefanos did not meet their burden of establishing that J.T. Thomas Homes violated section 201-2(4)(xxi), the UTPCPL’s catch-all provision. Trial Court Opinion, 12/23/2024, at 9; see also Gregg, 245 A.3d at 649 (describing 73 P.S. § 201-2(4)(xxi) as a “catch-all provision” that “imposes liability on commercial vendors who engage in conduct that has the potential to deceive and which creates a likelihood of confusion or misunderstanding”).

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standard it agreed to provide—the trial court declined to award attorneys’ fees

or treble damages because J.T. Thomas Homes’ conduct was not intentional,

reckless, or fraudulent. Id. at 10. Although J.T. Thomas Homes did provide

defective workmanship, the contentious litigation ensued because of the

parties’ mutual communication breakdowns, not because of any deception by

J.T. Thomas Homes. Id.

Nothing in the statutory language of section 201-2(4)(xvi) requires a

party to prove that the contractor engaged in fraud or deception beyond

conduct that meets wording of the statute. See Gregg, 245 A.3d at 651

(courts must apply the language as written and not add requirements to a

statute that the legislature chose not to include). Likewise, subsection (xvi)

contains no requirement the consumer present expert testimony or

demonstrate that the contractor failed to meet the industry standard. To

prove that a contractor engaged in an “unfair method of competition and

unfair or deceptive act or practice” pursuant to section 201-2(4)(xvi), the

consumer needs to prove that the contractor made “repairs, improvements or

replacements on tangible, real or personal property, of a nature or quality

inferior to or below the standard of that agreed to in writing.” 73 Pa.C.S.

§ 201-2(4)(xvi). The provision of work that is substandard to the contractor’s

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agreed-upon written standard is the unfair or deceptive act,8 and this, along

with the other required elements, serves to establish a statutory UTPCPL

claim. See Burns, 663 A.2d at 310–11.

Its attempt to distinguish Burns fails; that the contractor engaged in a

pattern of using the incomplete status of projects to coerce consumers into

paying additional money and not completing the work it had contractually

agreed to perform was the basis of the Commonwealth Court’s finding of

liability under the catchall provision in section 201-2(4)(xvii), not section 201-

2(4)(xvi). Id. Instead, the basis of its section 201-2(4)(xvi) liability it was

the contractor’s failure to perform work in accordance with its promised

standard, which required abiding by a specified building code, use of new

materials, and provision of “good quality” workmanship and materials. Id.

Because none of J.T. Thomas Homes’ arguments establish that the trial

court incorrectly construed section 201-2(4)(xvi), no relief is due.

Conclusion

8 J.T. Thomas Homes’ policy-based argument fails to contemplate that strict liability for “any finding of defective work under a construction contract” very well may be the point of section 201-2(4)(xvi), at least when the contractor provides work that falls short of its own contractual standard. See Mitchell v. Megill Homes, Inc., 262 A.3d 558, at *5-6 (Pa. Super. 2021) (non- precedential decision) (deciding that because section 201-2(4)(xvi) does not have an explicit state-of-mind requirement like certain other definitions of unfair or deceptive conduct, the General Assembly intended to create strict liability for contractors) (citing Gregg, 245 A.3d at 650).

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Based on the foregoing, we conclude that: (1) the breach-of-contract

claim relating to mortar proved by the DeStefanos’ comported with the claim

raised in its counterclaim and the trial court did not abuse its discretion in

weighing the conflicting evidence before it; (2) the trial court did not abuse

its discretion by permitting the fact testimony provided by the mortar

contractor; (3) the trial court did not abuse its discretion in declining to

sanction the DeStefanos for alleged spoliation; and (4) the trial court did not

err in its construction of section 201-2(4)(xvi) of the UTPCPL. We affirm.

Judgment affirmed.

DATE: 05/15/2026

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