115 A.3d 312
Pa. Super. Ct.2015Background
- Koller Concrete purchased a cement product called Waycem from Tube City beginning in 1995; Waycem was represented to contain ground granulated blast-furnace slag (GGBFS) and to meet ASTM C989 specifications.
- In 2006 Koller observed severe cracking and defects in multiple projects where Waycem had been used; petrographic testing of cores from the Tobyhanna and Simon projects indicated the samples did not contain GGBFS.
- Koller suspected Tube City had used air-cooled slag instead of GGBFS; Tube City admitted experimenting with air-cooled slag but denied selling product with it.
- Koller sued Tube City in 2009 asserting breach of contract, unjust enrichment, detrimental reliance, express and implied warranty breaches, fraud, negligent misrepresentation, UTPCPL violations, and sought attorneys’ fees and punitive damages; a jury trial in 2014 returned a verdict for Koller for $347,138.19.
- The trial court granted nonsuit on UTPCPL, attorneys’ fees and punitive damages; Tube City’s post-trial motions (JNOV, new trial, remittitur) were denied; Tube City appealed raising evidentiary and sufficiency arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of core samples (chain of custody) | Koller: chain sufficiently established; samples admissible | Tube City: chain of custody gaps and credibility flaws required exclusion | Court: admission within trial court's discretion; gaps go to weight, not admissibility |
| Sequestration order and testimony by Lambert | Koller: Lambert essential to presenting case; exemption under Pa.R.E.615 | Tube City: Lambert violated sequestration; testimony should be excluded or curative instruction given | Court: no abuse of discretion; Lambert properly excepted under Rule 615; no curative instruction required |
| Privileged documents in expert file (waiver) | Koller: communications between counsel and expert/corporate rep protected by attorney-client/work-product rules | Tube City: privilege waived because expert brought file to witness stand | Court: trial court properly excluded privileged documents; waiver argument not preserved and, in any event, Tube City had agreed expert could remove privileged items before inspection |
| Sufficiency of evidence / JNOV on fraud, contract, damages | Koller: presented direct and circumstantial proof linking Waycem to failures and quantified damages | Tube City: evidence insufficient, credibility problems, damages speculative beyond two core-tested projects | Court: viewing evidence favorably to Koller, sufficient competent evidence supported verdict; JNOV/new trial not warranted; damages not excessive or shocking |
Key Cases Cited
- Knowles v. Levan, 15 A.3d 504 (Pa. Super. 2011) (standard: admissibility of evidence reviewed for abuse of discretion)
- Commonwealth v. Judge, 648 A.2d 1222 (Pa. Super. 1994) (authentication/chain-of-custody principles for physical evidence)
- Barrick v. Holy Spirit Hosp. of Sisters of Christian Charity, 91 A.3d 680 (Pa. 2014) (communications between counsel and expert witness protected from discovery)
- Ferrer v. Trustees of Univ. of Pennsylvania, 825 A.2d 591 (Pa. 2002) (standard of review for denial of JNOV)
- Rohm & Haas Co. v. Cont'l Cas. Co., 732 A.2d 1236 (Pa. Super. 1999) (JNOV is an extreme remedy; jury findings should not be invaded)
- Burton-Lister v. Siegel, Sivitz & Lebed Associates, 798 A.2d 231 (Pa. Super. 2002) (deference to jury verdicts; JNOV standard)