Total Home Care and Inspection v. Carlevale, P.
Total Home Care and Inspection v. Carlevale, P. No. 1292 MDA 2016
Pa. Super. Ct.Jul 25, 2017Background
- Total Home Care and Inspection, Inc. (Total Home Care) sued subcontractor Paul A. Carlevale t/a C&Z Construction for unpaid work at six properties; Carlevale counterclaimed for defective work on several homeowner jobs.
- After a two-day non-jury trial, the trial court awarded Total Home Care $33,458.29 plus interest at 6% until paid, finding most invoices and testimony supported the claims and discrediting Carlevale’s counterclaims for lack of expert proof of defect.
- Key factual dispute focused on the Oasis Club HVAC job: original contract price was $30,800 with a half down payment of $15,400; Total Home Care claimed it later accepted $8,100 as a reduced time-and-materials payout after being locked out while ~90–95% complete.
- Carlevale raised multiple appellate points: insufficiency of proof for time-and-materials contracts (and lack of time records), motions for nonsuit/directed verdict, error in damages calculation (especially Oasis HVAC), and failure to compel testimony of the Oasis Club owner (bench warrant).
- Total Home Care cross-appealed the trial court’s decision to award statutory interest (6%) instead of the contractual 18% (1.5% per month) shown on invoices and asserted by course of dealings.
- Superior Court: affirmed in part, reversed in part, and remanded — upholding liability and principal award but reversing on interest, remanding for calculation of prejudgment and post-judgment interest at 18%.
Issues
| Issue | Plaintiff's Argument (Total Home Care) | Defendant's Argument (Carlevale) | Held |
|---|---|---|---|
| Existence/sufficiency of time-and-materials contracts | Total Home Care: testimony, estimates/invoices, and offered time sheets established contracts and time/materials basis | Carlevale: plaintiff failed to prove the “time” element, produced no time records or signed estimates | Waived and/or rejected — 1925(b) statement and briefing too vague; trial court credibility findings supported by record; no relief |
| Motions for nonsuit / directed verdict | N/A (plaintiff opposed motions) | Carlevale: argued plaintiff failed to meet burden on several claims and requested directed verdict/nonsuit | Not preserved on appeal (no timely post-plaintiff motion at close of evidence); waived |
| Calculation of damages (Oasis Club HVAC) | Total Home Care: accepted reduced $8,100 time-and-materials figure after lock-out; documentary and testimonial support | Carlevale: original contract was $30,800, paid $15,400, claimed additional $15,000 credit so balance should be ~$400 | Affirmed — trial court’s reduction to $8,100 credited to Total Home Care was supported by testimony and exhibits |
| Failure to issue bench warrant for Oasis Club owner (Gary Dobrinoff) | N/A | Carlevale: Dobrinoff was neutral owner who was subpoenaed and cashed witness fee; his testimony would show incomplete work | Rejected — no proof in record of proper service/return of subpoena; trial court did not abuse discretion |
| Interest rate: contractual 18% vs statutory 6% (cross-appeal) | Total Home Care: invoices and course of conduct established contract rate of 1.5%/month (18% annually); contractual rate should apply to prejudgment and post-judgment interest | Carlevale: trial court applied 6% statutory rate | Reversed as to interest — parties’ contracts provided 18%, so remanded to calculate prejudgment and post-judgment interest at 18% |
Key Cases Cited
- Baney v. Eoute, 784 A.2d 132 (Pa. Super. 2001) (standard of review for non-jury trial findings)
- Ramalingam v. Keller Williams Realty Group, Inc., 121 A.3d 1034 (Pa. Super. 2015) (contract interpretation focuses on parties’ intent embodied in writing)
- TruServ Corp. v. Morgan's Tool & Supply Co., Inc., 39 A.3d 253 (Pa. 2012) (where contract specifies interest, court must give effect to that term)
- Wirth v. Commonwealth, 95 A.3d 822 (Pa. 2014) (issues insufficiently developed in brief are waived)
- Hollock v. Erie Ins. Exch., 842 A.2d 409 (Pa. Super. 2004) (credibility findings in bench trial are for trial court and will not be disturbed absent abuse)