Zokaites Contracting, Inc. v. Hulton, 052920 PASUP, 1471 WDA 2019

Docket Nº:1471 WDA 2019
Opinion Judge:KING, J.
Party Name:ZOKAITES CONTRACTING, INC., GENERAL PARTNER AND TRADING AS ZOKAITES PROPERTIES, LP AND WYNCREST DEVELOPMENT, INC. Appellants v. JEFFREY A. HULTON Appellee
Judge Panel:BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.
Case Date:May 29, 2020
Court:Superior Court of Pennsylvania
 
FREE EXCERPT

ZOKAITES CONTRACTING, INC., GENERAL PARTNER AND TRADING AS ZOKAITES PROPERTIES, LP AND WYNCREST DEVELOPMENT, INC. Appellants

v.

JEFFREY A. HULTON Appellee

No. 1471 WDA 2019

Superior Court of Pennsylvania

May 29, 2020

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Order Entered September 16, 2019 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD 17-011433

BEFORE: KUNSELMAN, J., KING, J., and COLINS, J. [*]

MEMORANDUM

KING, J.

Appellants, Zokaites Contracting, Inc., General Partner and Trading as Zokaites Properties, LP and Wyncrest Development, Inc., appeal from the order entered in the Allegheny County Court of Common Pleas, which granted summary judgment in favor of Appellee, Jeffrey A. Hulton, in this legal malpractice action. We affirm.

The relevant facts and procedural history of this case are as follows. Appellants are residential real estate developers who own a tract in Butler Township, Butler County ("Development") with plans to build there and sell 47 homes. Before the end of 2009, Appellants completed 14 of the homes in compliance with the then-effective 2006 version of the Pennsylvania Uniform Commercial Code ("PUCC"). The Pennsylvania legislature, however, amended the PUCC, effective December 31, 2009. Appellants' president Frank R. Zokaites executed a letter dated December 15, 2009 ("December 15th Letter") to architecture firm, Sweeny Shank, LLC ("Sweeny Shank"). The December 15th Letter purported to set forth between Appellants and Sweeny Shank an agreement, under which Sweeny Shank would design the remaining 33 homes in the Development.

In 2010, Appellants applied for a permit to build homes under the 2006 PUCC, arguing the December 15th Letter constituted a "design contract" to which the PUCC "grandfather provision" applied to allow construction of the new homes under the 2006 PUCC. The Butler Township Code Enforcement Officer denied Appellants' application. Appellants retained the legal services of Appellee and appealed the denial of their building permit application to the Butler Township UCC Board ("Board"). On June 30, 2010, the Board upheld the Code Enforcement Officer's denial of Appellants' application.

While still represented by Appellee, Appellants filed a timely appeal in the Butler County Court of Common Pleas. On October 28, 2015, the Honorable Michael Yeager presided over a bench trial, at which Appellants' vice president, Jeffrey Robinson, testified. During trial, an exchange between Judge Yeager and Mr. Robinson occurred, in relevant part, as follows:

[THE COURT]: … This letter of December 15, 2009, was authored by Frank R. Zokaites. Is that correct?

[MR. ROBINSON]: Yes, Your Honor.

[THE COURT]: Who usually writes the design contract?

[THE COURT]: Well, your testimony, sir, was the design contract is what, and I quote you, whatever the architect puts into it.

[MR. ROBINSON]: Yes. That was my testimony. I believe the question was a general question of a design contract.

[THE COURT]: I want to know what the design contract is, and your response was, whatever the architect- whatever the architect puts into it.

[MR. ROBINSON]: Okay.

[THE COURT]: So that would then-one would then have to conclude from that[, ] that a design contract is customarily proffered by an architect.

[MR. ROBINSON]: Yes, Your Honor.

[THE COURT]: And why did Zokaites Properties-why was it that Zokaites Properties-Wyncrest...

To continue reading

FREE SIGN UP