E.B. Endres, Inc. v. Shwemmlein, C. & R., 665 MDA 2017

Background

Christoph and Rita Schwemmlein (German residents) contracted with E.B. Endres, Inc. for major renovations to a Pennsylvania home; Endres provided a written proposal dated August 16, 2007 listing a $167,000 scope of work, which defendants did not sign.
Defendants designated Klaus Jaeger (local friend) as their on-site agent to approve details and change orders because the Schwemmleins lived in Europe.
During construction (Aug 2007–Mar 2008) there were 81 change orders increasing costs; Endres documented each change and provided copies to Jaeger. Total extra work exceeded the original lump sum.
At defendants’ request, Endres prepared one or two year-end invoices in Dec. 2007 for tax purposes showing $230,000; defendants paid a total of $230,000 by Jan. 3, 2008. Endres’ letters stated those invoices were not final bills.
Endres issued a final bill in June 2008 for $85,245.61, later adjusted to $83,596.57 after credits. Defendants refused to pay the final balance. Endres sued (2010) for breach of contract and unjust enrichment; bench trial in Jan. 2016; judgment for Endres confirmed and amended to add costs and pre-judgment interest.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an oral/written contract existed and its terms	Endres: the August 16, 2007 written proposal was accepted by conduct; work proceeded under that offer and change-order protocol	Schwemmlein: no binding acceptance of the written $167,000 lump-sum; parties agreed orally/by invoice to time-and-materials or a different lump sum	Court: Found a contract based on the August 16 written offer accepted by conduct; change orders were handled by the parties and billed time-and-materials
Whether a later (Dec. 2007) $230,000 lump-sum agreement replaced prior arrangement	Endres: December invoices were tax documents only; no agreement to cap final price at $230,000	Schwemmlein: the $230,000 invoices (and subsequent payments) reflected an agreed total price for the project	Court: Rejected defendants’ claim of a new lump-sum agreement; invoices were prepared for tax purposes and not a binding new contract
Whether plaintiff was limited to actual costs per Note 6 of the written offer	Endres: change orders and course of dealing established time-and-materials billing (with standard markups) rather than simple reimbursement of ‘‘actual costs’’ under contingencies	Schwemmlein: Note 6 or contract terms limit recoverable amounts to actual costs for extra work	Court: Interpreted Note 6 as applying only to defined hidden contingencies; extra work was billed and recoverable on time-and-materials as performed in practice
Whether prejudgment interest was proper	Endres: pre-judgment interest appropriate because final bill amount was ascertainable	Schwemmlein: no basis for prejudgment interest	Court: Awarded prejudgment interest as amount due was readily ascertainable (adjusted final bill) and within court discretion

Key Cases Cited

Levitt v. Patrick, 976 A.2d 581 (Pa. Super. 2009) (standard of appellate review for non-jury trials: trial court findings given deference).
Cresci Constr. Servs., Inc. v. Martin, 64 A.3d 254 (Pa. Super. 2013) (pre-judgment interest review is for abuse of discretion; framework for awarding interest in contract cases).
Somerset Cmty. Hosp. v. Allan B. Mitchell & Assocs., Inc., 685 A.2d 141 (Pa. Super. 1996) (pre-judgment interest compensates injured party for being deprived use of money rightfully due).
Frank B. Bozzo, Inc. v. Electric Weld Div. of Spang Indus., Inc., 498 A.2d 895 (Pa. Super. 1985) (discretionary nature of pre-judgment interest when damages are unliquidated).
AccuWeather, Inc. v. Thomas Broad. Co., 625 A.2d 75 (Pa. Super. 1993) (offer may be accepted by conduct).
Sheely v. Beard, 696 A.2d 214 (Pa. 1997) (new-trial/weight of the evidence standard; verdict will not be upset for conflicting testimony absent results shocking to justice).
Reid v. Ruffin, 469 A.2d 1030 (Pa. 1983) (elements of agency formation).