Cohen, M. v. JS Associated Service
390 WDA 2017
| Pa. Super. Ct. | Dec 15, 2017Background
- In 2007 Cohen discovered a water leak and Travelers recommended ServiceMaster to remediate mold and install a new bathroom subfloor; the parties operated under a written estimate/agreement (Ex. 2a).
- The Agreement provided ServiceMaster would install a new subfloor in the bathroom but noted permanent finish work would be done by another contractor after remediation.
- ServiceMaster installed subflooring using glue and screws; Cohen returned to find uneven/poorly fitted subflooring and claimed it was permanently installed and unworkmanlike.
- Cohen obtained repair estimates: a 2007 estimate from Scott Steel totaling $6,038 (with line items 7–10 totaling $154 to address the subfloor ServiceMaster installed), a later Steel estimate of $11,556 (included leveling and other work beyond the Agreement), and an unsupported $20,000–$25,000 estimate from another contractor.
- Cohen sued for breach of contract (seeking repair costs and loss of use). After a bench trial the court found breach in Cohen’s favor but awarded $154 (the cost of Steel’s line items 7–10) and denied consequential damages; Cohen appealed.
Issues
| Issue | Cohen's Argument | ServiceMaster's Argument | Held |
|---|---|---|---|
| Contract interpretation: whether subfloor was required to be temporary | The Agreement required remediation and temporary subflooring to allow finishing; ServiceMaster permanently installed subflooring with glue/screws in breach | Agreement only required installation of a new subfloor; it did not specify temporary vs permanent or fastening method, and final flooring was reserved to another contractor | Court: contract unambiguous as written; no term required temporary installation — no error in trial court’s contract construction |
| Measure of damages: proper amount to remedy defective work | Trial court should award at least $11,556 (Steel’s in-court estimate) or rely on Eddington’s $20k–$25k lump sum | Damages should be limited to cost to complete only work within ServiceMaster’s contractual scope; Steel’s 2007 line items 7–10 ($154) were the relevant, verifiable cost | Court: affirmed $154 award; trial court reasonably credited Steel’s testimony that only lines 7–10 were required to complete subfloor work |
| Credibility/consideration of expert testimony | Trial court abused discretion by not considering Steel’s full testimony and by rejecting Eddington’s estimate | Trial court properly evaluated witnesses and rejected portions relating to work outside the Agreement | Court: appellate deference to factfinder; no abuse of discretion in how the trial court weighed expert testimony |
| Consequential damages (loss of use) | Cohen entitled to damages for loss of use (claimed $300/month) as natural proximate result of breach | Any loss was not foreseeable; Cohen failed to mitigate and presented no basis to quantify loss | Court: no award for loss of use — not shown foreseeable or supported by evidence; trial court’s discretion affirmed |
Key Cases Cited
- Nicholas v. Hofmann, 158 A.3d 675 (Pa. Super. 2017) (writing controls contract interpretation; parol evidence if ambiguity exists)
- Epstein v. Saul Ewing, LLP, 7 A.3d 303 (Pa. Super. 2010) (standard of review for adequacy of damages; deference to factfinder)
- Douglass v. Licciardi Const. Co., Inc., 562 A.2d 913 (Pa. Super. 1989) (measure of damages for defective construction is cost of completion unless disproportionate to diminution in value)
- Gadbois v. Leb-Co Builders, Inc., 458 A.2d 555 (Pa. Super. 1983) (default rule: damages measured by cost of repairs unless market-value rule applies)
- Cresci Const. Serv., Inc. v. Martin, 64 A.3d 254 (Pa. Super. 2013) (consequential damages for construction breaches must be foreseeable; award lies within trial court discretion)