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Zokaites Contracting Inc. v. Trant Corp.

February 26, 2009

ZOKAITES CONTRACTING INC. AND WOODSIDE DEVELOPMENT APPELLANTS
v.
TRANT CORPORATION, SHUTY INC., CLASSIC DEVELOPMENT CONSULTANTS, INC., JOHN K TRANT, DONALD P. TRANT, AND JOHN DOE APPELLEES



Appeal from the Order Entered March 31, 2008, Court of Common Pleas, Allegheny County, Civil, at No. GD 03-15471.

The opinion of the court was delivered by: Allen, J.

BEFORE: FORD ELLIOTT, P.J., DONOHUE and ALLEN, JJ.

OPINION

¶ 1 Zokaites Contracting Inc. and Woodside Development ("Appellants") appeal from the trial court's March 31, 2008 order certifying its January 30, 2007 order final and appealable. The trial court's January 30, 2007 order granted in part and denied in part Appellants' petition to open a judgment of non pros for failing to file a certificate of merit (COM) pursuant to Pa.R.C.P. 1042.3. On appeal, Appellants contend that the trial court erred in requiring them to file a COM to support allegations they made in a breach of contract count; that the trial court erred in finding that they failed to proffer a reasonable explanation for failing to file a COM; and that the trial court erred in failing to open the judgment under Pa.R.C.P. 126 and the equitable considerations of this case. We find no merit in Appellants' assertions of error; accordingly, we affirm the trial court's order.

¶ 2The underlying dispute in this matter stems from the work performance of Trant Corporation, Shuty, Inc., Classic Development Consultants, Inc., Jon K. Trant, Donald P. Trant, and John Doe (collectively "Defendants"), in rendering professional engineering services for Appellants pursuant to written contracts.

¶ 3 On August 14, 2003, Appellants filed a Complaint in Replevin against Defendants and requested a Writ of Seizure. On August 26, 2003, Appellants filed a First Amended Complaint, asserting among other things claims of professional engineering malpractice. The four counts of the First Amended Complaint were: Count I -- Replevin, Count II -- Breach of Contract, Count III -- Negligence, and Count IV -- Piercing the Corporate Veil. On November 24, 2003, Appellants filed a motion to extend the time for filing a COM, but this motion was not docketed because Appellants did not have the correct caption on the motion. Consequently, the trial court never ruled on Appellants' motion to extend.

¶ 4 Defendants filed a series of preliminary objections and in response, Appellants filed various amended complaints. The Second Amended Complaint added a count for Interference with Contractual Relations and the Third Amended Complaint stated the following claims:

Count I -- Replevin,

Count II -- Breach of Contract,

Count III -- Negligence,

Count IV -- Piercing the Corporate Veil, and

Count V -- Interference with Contractual Relations.

¶ 5 On May 22, 2006, Appellants placed the case at issue and trial was scheduled to begin on January 12, 2007. On December 20, 2006, Defendants filed a praecipe to enter a judgment of non pros because Appellants did not file a COM in support of their professional negligence claims. The prothonotary entered judgment of non pros in favor of Defendants on that same date.

¶ 6 On December 28, 2006, Appellants filed a petition to strike and/or open the judgment of non pros and Defendants filed an answer. On January 30, 2007, the trial court entered an order granting Appellants' motion in part and denying it in part. In its entirety, the trial court's January 30, 2007 order read:

AND NOW, this 30th day of January, 2007, it is hereby ORDERED that [Appellants'] petition for relief from judgment of non pros is granted in part and denied in part, as follows:

1) the judgment is opened as to Defendant John K. Trant, in all respects as he is not a licensed professional and thus, a [COM] pursuant to Pa.R.C.P. 1042.3 is not required as to him.

2) the judgment of non pros is opened as to:

(A) All Defendants with regard to the averments set forth in Count II -- Breach of Contract, Paragraph 30 of the Third Amended Complaint, as follows: Woodside Estates -- Subparagraphs (a), (b), (d), and (l), Marshall Woods -- Subparagraphs (a), (b), (c), and (h).

Lakeview Farms4/ Cedar Ridge -- Subparagraphs (e) and (h).

Lakeview Farms 5 -- Subparagraph (a).

(B) All Defendants with respect to Count V -- Interference with Contractual relations.

(C) Defendants John K. Trant and Donald P. Trant as to Count IV -- Piercing the Corporate Veil -- insofar as the underlying claims have not been non prossed. In all other respects, the petition is denied.

Trial Court Opinion (T.C.O.), 6/27/08, at 3-4.

¶ 7 The trial court explained its order granting in part and denying in part Appellants' petition to open as follows:

Paragraphs 1, 2(B) and 2(C) are self-explanatory [and open the judgment for claims that do not require the filing of a COM]. Paragraph 2(A) opened portions of the judgment of non pros as it related to the breach of contract count in the Third Amended Complaint. Basically, the judgment was opened as to those averments in the breach of contract count that did not complain the contract was being breached because of the negligence of licensed professionals. For example, it was opened as to: "failed to install 104 permanent monuments . . ." and "failed and refused to provide digital plans to Pennsylvania Power Company." The judgment of non pros was not opened as to the allegations of professional malpractice, e.g., "design errors for . . ." or "improperly designed. . ."

T.C.O., 6/27/08, at 4.

¶ 8 Appellants then filed a motion for certification. On February 27, 2007, the trial court certified its January 30, 2007 order for interlocutory appeal and stayed the trial until this Court ruled on Appellants' petition for interlocutory appeal. On May 10, 2007, this Court declined to hear the appeal, the case was remanded and the trial court scheduled trial for November 11, 2007.

ΒΆ 9 Prior to the commencement of trial, the parties entered into a partial settlement agreement, and Appellants released its claims that were scheduled to go to trial, i.e., Count I -- Replevin, Count II -- Breach of Contract (the portions that the trial court opened), Count IV -- Piercing the Corporate Veil, and Count V -- Interference with Contractual Relations. The release agreement, however, did not encompass the portion of the trial court's order that denied Appellants' petition to open and thus, did not extinguish the claims that were subjected to the judgment of non pros, i.e., Count II -- Breach of Contract (the averments that the trial court found required the filing of a COM) and Count III negligence claims. As a result, Appellants sought to appeal the aspect of the trial court's order that denied ...


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