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Koller Concrete, Inc. v. Tube City IMS, LLC

Superior Court of Pennsylvania

April 21, 2015


Argued: March 18, 2015.

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[Copyrighted Material Omitted]

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Appeal from the Judgment entered June 25, 2014, Court of Common Pleas, Northampton County, Civil Division at No. C-0048-CV-2011-00629. Before DALLY, J.

Scott J. Good, Westmont, NJ, for APPELLANT.

Mohammad A. Ghiasuddin, Blue Bell, for APPELLEE.



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Tube City, LLC (" Tube City" ) appeals from the judgment entered in the amount of $34,7138.39 for Appellee, Koller Concrete, Inc. (" Koller" ). Following our review, we affirm.

The basic facts underlying this appeal are as follows. Koller produces concrete for contractors to use in commercial and residential projects.[1] Koller blends concrete for its customers to meet the specific requirements of each particular job. In 1995, Koller began to purchase a particular cement, Waycem, from Tube City for use in its concrete mixtures. Koller found that Waycem added strength to its concrete mixtures and therefore favored the product. This product appealed to Koller because Waycem was made with ground granulated blast-furnace slag, which contributed to this increased strength. Tube City always represented that Waycem was made with ground granulated blast-furnace slag and that it met the specifications of the industry's standard for ground granulated blast-furnace slag, C989.

In early 2006, Koller began to receive complaints on a number of projects, all of which used concrete that contained Waycem.[2] William Lambert (" Lambert" ), a long-time employee and technician for Koller, responded to these complaints by visiting the jobsites to inspect the concrete. He observed severe cracking and other defects that he had not previously seen occur with Koller concrete. In February 2007, Lambert had samples of the concrete taken from one project, the Tobyhanna Army Depot project, for petrographic analysis.[3] According to Koller, the analyses of these core samples revealed that they contained no ground granulated blastfurnace slag. Koller eventually became aware that the plant from which Tube City received the components to create Waycem closed on February 17, 2006. Based on all of this information, Koller came to suspect that in 2006, Tube City sold it Waycem that was made with air-cooled slag instead of ground granulated blast-furnace slag. Lambert confronted Tube City with these suspicions. Tube City admitted that it had experimented internally with making Waycem with air-cooled slag, but denied selling any product containing air-cooled slag.

On March 13, 2009, Koller filed a complaint against Tube City raising claims of breach of contract, unjust enrichment, detrimental reliance, breach of express warranties, breach of the implied warranty of merchantability, breach of the implied warranty of fitness for particular purpose,

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fraud, negligent misrepresentation, violations of the Unfair Trade Practices and Consumer Protection Law (" UTPCPL" ), and sought attorneys' fees and punitive damages. A jury trial commenced on February 10, 2014. At the close of the evidence, the trial court granted Tube City's motion for nonsuit on Koller's UTPCPL, attorneys' fees and punitive damages claims. The jury returned a verdict in Koller's favor on the remaining counts and awarded it damages in the amount of $347,138.19. Tube City filed timely post-trial motions, seeking JNOV, a new trial, or remittitur on the amount of the verdict. Following argument, the trial court denied these motions. This appeal followed.[4]

Tube City presents the following issues for our review:

1. Whether the [trial] court erred in rendering evidentiary rulings that resulted in bias to [Tube City]?
2. Whether the trial court erred in failing to enter a directed verdict in favor of [Tube City] and failing to strike [Koller's] claims where [Koller] failed to prove the required elements of its claims and where a new trial is required in the interest of justice?
3. Whether the trial court erred in precluding disclosure of certain documents in [Koller's] expert's file under the guise of the attorney[-]client privilege?

Tube City's Brief at 4.

Tube City first challenges multiple evidentiary rulings made by the trial court both prior to and during trial. " [I]t is well settled that the admissibility of evidence is a determination left to the sound discretion of the trial court, and it will not be overturned absent an abuse of discretion or misapplication of law." Knowles v. Levan, 2011 PA Super 31, 15 A.3d 504, 507 (Pa. Super. 2011) (quoting Reott v. Asia Trend, Inc., 2010 PA Super 176, 7 A.3d 830, 839 (Pa. Super. 2010)). For a ruling on the ...

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