El-Gharbaoui v. Ajayi

• Decision Date: 20 July 2021
• Docket Number: No. 3057 EDA 2019,3057 EDA 2019
• Citation: 260 A.3d 944
• Parties: Adil EL-GHARBAOUI d/b/a Adeal General Contractors, Appellant v. Adebowale AJAYI and Jibola Ajayi
• Court: Pennsylvania Superior Court

260 A.3d 944

Adil EL-GHARBAOUI d/b/a Adeal General Contractors, Appellant

v.Adebowale AJAYI and Jibola Ajayi

No. 3057 EDA 2019

Superior Court of Pennsylvania.

Argued January 12, 2021

Filed July 20, 2021

Musa Amin Jan, Gulph Mills, for appellant.

Joseph Dominic DiGuglielmo, Elverson, for appellee.

BEFORE: BENDER, P.J.E., OLSON, J., and STRASSBURGER, J.^*

OPINION BY OLSON, J.:

Appellant, Adil El-Gharbaoui d/b/a Adeal General Contractors, appeals from the November 27, 2019 judgment¹ entered upon a non-jury verdict in favor of Adebowale Ajayi and Jibola Ajayi, husband and wife, (collectively, "the Ajayis") in the amount of $24,942.22.² We affirm the judgment, in part, and vacate the judgment, in part, and remand this case for further proceedings consistent with this opinion.³

A prior panel of this Court summarized the factual history as follows:

On August 30, 2010, [Appellant] entered into a contract ("original contract") with [the Ajayis] to renovate the building [the Ajayis] owned [located along] Baltimore Avenue [in] Philadelphia, [Pennsylvania] ("the property"), in exchange for $160,000[.00]. [Appellant] began work at the beginning of September 2010, after [the Ajayis] paid a $25,000[.00] deposit. [Appellant] completed demolition in September 2010, at a cost of $28,000[.00]. After demolition, the building on the property was an empty shell supported entirely by the partition and exterior walls.

From September 2010[,] to January 2011, [Appellant] ceased work on the property while waiting for a plan from the engineer. On January 29, 2011, the parties agreed to a supplemental contract ("supplemental contract"), which included additional masonry work in exchange for an additional $18,000[.00]. The supplemental contract included a payment schedule with amounts [to be paid by the Ajayis] when [Appellant] met certain construction milestones. Between January 29, 2011[,] and February 14, 2011, [Appellant] sent [the Ajayis] multiple emails documenting completion of milestones. [The Ajayis] failed to provide payment to [Appellant].

The property deteriorated over the winter as lack of funding and [Appellant's] safety concerns delayed construction. [Appellant] arranged for a structural engineer to visit the property to address his safety concerns.

On April 1, 2011, [Appellant] sent an invoice for $22,000[.00] to [the Ajayis] for completed masonry work.^[4] [The Ajayis] did not make any payments. The building degraded and became extremely hazardous, prompting [Appellant] to contact the [Philadelphia] Department of Licenses and Inspection ("L & I") to voice his safety concerns. On April 11, 2011, L & I condemned the property.

On the same day, [Appellant] sent an email to L & I requesting that [it] remove his name from the property's building permit. In the email, [Appellant] stated that he had not worked on the property in three weeks. [Appellant] maintained keys to the property until April 13, 2011, when [Appellant] terminated the original contract and supplemental contract via email.

On September 20, 2011, [Appellant] filed a mechanics' lien claim against the property for unpaid work totaling $22,000[.00]. On September 22, 2013, [Appellant] filed a complaint to enforce [the] mechanics' lien claim. On July 1, 2015, after a three-day bench trial, the trial court [in Appellant's mechanics' lien enforcement action] awarded [Appellant] $41,500[.00], including $22,000[.00] for unpaid work, $11,000[.00 in] interest[,] and $8,500[.00] in attorney's fees and costs. The judgment [in the amount of $41,500.00] was entered on December 5, 2015[, against the Ajayis].

Adil El-Gharbaoui v. Adebowale and Jibola Ajayi , 2018 WL 1528354, at *1 (Pa. Super. 2018) (unpublished memorandum) (extraneous capitalization omitted). On appeal, this Court affirmed, in part, the portion of the judgment for unpaid work in the amount of $22,000.00, and vacated, in part, the portion of the judgment awarded for interest, attorney's fees, and costs in the aggregate amount of $19,500.00.⁵ Id. at *4.

Following the prior appeal in which Appellant successfully defended his mechanics' lien claim for unpaid labor and materials but lost his recovery for attorney's fees and an award of interest, Appellant filed a new complaint on February 28, 2017, against the Ajayis alleging a breach of contract claim under CASPA and seeking, inter alia , attorney's fees, interest, and penalties. Based upon the judgment obtained in the mechanics' lien action, Appellant claimed the Ajayis were collaterally estopped from contesting the facts and legal contentions underlying his contractual claims. Upon completion of a two-day non-jury trial, the trial court, on January 29, 2019, rejected Appellant's claim pursuant to CASPA and entered a verdict in favor of the Ajayis on their counterclaim alleging that Appellant violated HICPA and UTPCPL.⁶ See Trial Court Findings of Fact and Conclusions of Law, 1/29/19, at 7. Consequently, the trial court awarded the Ajayis attorney's fees in the amount of $9,942.22 for successfully defending against Appellant's CASPA action and awarded the Ajayis $15,000.00 in damages for their counterclaim. Id.

On February 8, 2019, Appellant filed a post-trial motion. While Appellant's post-trial motion remained unresolved, and before Appellant filed a notice of appeal, the trial court, on June 24, 2019, ordered Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant subsequently filed on July 16, 2019. On September 24, 2019, the trial court filed its Rule 1925(a) opinion. After Appellant filed a praecipe for entry of judgment, judgment was entered on November 27, 2019.⁷ This appeal followed.

Appellant raises the following issues for our review:

[1.] Did the trial court commit reversible error by ruling that [CASPA] did not apply to the construction of a church, [a] day[-]care [center], and two [residential] apartments, and instead applied [HICPA and UTPCPL]?

[2.] Is Appellant entitled to a new trial where the [trial court] failed to abide by the doctrine of [collateral estoppel⁸ ] and honor the factual rulings conclusively established by the [trial court,] and affirmed by [this Court, in the mechanics' lien action]?

[3.] Did the trial court commit reversible error by ruling that [the Ajayis'] counterclaims were not time[-]barred by the statute of limitations?

[4.] Did the trial court commit reversible error by basing its decision on inadmissible evidence, including but not limited to [the Ajayis'] exhibits that were not uploaded to the [trial court] docket in a timely manner in violation of Phila.R.J.A. 1900, and the testimony of witnesses deemed to [ ] be [not] credible?

Appellant's Brief at 3 (extraneous capitalization omitted).⁹

In his first issue, Appellant challenges the trial court's rejection of his breach of contract claim seeking attorney's fees and penalties pertaining to his mechanics' lien judgment on grounds that CASPA was not applicable in the instant matter.¹⁰

Appellant's issue requires this Court to interpret the CASPA statute to determine its applicability in the case sub judice . Our standard of review for such claims is well-established.

When determining the meaning of a statute, a court must construe the words of that statute according to their plain meaning. 1 Pa.C.S.A. § 1903(a) [.] When the words of a statute are clear and free from all ambiguity, they are not to be disregarded under the pretext of pursuing the spirit of the statute. 1 Pa.C.S.A. § 1921(a) [.] It is only when the statute is unclear that the court may embark upon the task of ascertaining the intent of the legislature. Absent a definition, statutes are presumed to employ words in their popular and plain everyday sense, and popular meanings of such words must prevail.

Zimmerman v. Harrisburg Fudd I, L.P. , 984 A.2d 497, 501 (Pa. Super. 2009) (case citations and original brackets omitted), appeal denied , 606 Pa. 651, 992 A.2d 890 (2010).

CASPA [is] a comprehensive statute enacted in 1994 to cure abuses within the building industry involving payments due from owners to contractors, contractors to subcontractors, and subcontractors to other subcontractors. The underlying purpose of CASPA is to protect contractors and subcontractors and to encourage fair dealing among parties to a construction contract. The statute provides rules and deadlines to ensure prompt payments, to discourage unreasonable withholding of payments, and to address the matter of progress payments and retainages. Under circumstances prescribed in the statute, interest, penalt[ies], attorney['s] fees[,] and litigation expenses may be imposed on an owner, contractor[,] or subcontractor who fails to make payment to a contractor or subcontractor in compliance with the statute.

Zimmerman , 984 A.2d at 500-501 (citation, original brackets, ellipsis, quotation marks, and footnote omitted); see also Nippes v. Lucas , 815 A.2d 648, 651 (Pa. Super. 2003) (stating that, "[t]he purpose of [CASPA] is to provide protection to contractors [who] require the greatest protection when they perform work on major construction projects"). "CASPA provides that when a contractor or subcontractor performs, he[, or she,] is entitled ‘to payment from the party with whom the contractor or subcontractor has contracted.’ " Scungio Borst v. 410 Shurs Lane Developers , 106 A.3d 103, 106 (Pa. Super. 2014) (en banc ), quoting 73 P.S. § 504, aff'd , 636 Pa. 621, 146 A.3d 232 (2016) ; see also 73 P.S. § 507.

CASPA applies to all construction contracts that involve "[a]n agreement, whether written or oral, to perform work on any real property located within this Commonwealth" with the exception of construction contracts involving public works projects¹¹ and "improvements to real property [that consists] of six or fewer residential units which are under construction simultaneously." See 73 P.S. § 515 (stating that, CASPA "shall apply to construction contracts"); see also id. at § 502 (defining the...