from the Judgment Entered November 30, 2017 In the Court of
Common Pleas of Allegheny County Civil Division at No(s): GD
BEFORE: BENDER, P.J.E., MOULTON, J., and SOLANO, J.
an action by United Environmental Group, Inc. for damages
relating to environmental remediation services that it
performed at property on McKnight Road in Ross Township,
Allegheny County, the former site of a gas station. There are
two groups of defendants: (1) GKK McKnight, LP, a
Pennsylvania limited partnership, and GKK Capital, LLC, a
Pennsylvania limited liability company (together,
"GKK"); and (2) Golden Oil Co., a Pennsylvania
corporation, and Kehm Oil Co., a Pennsylvania corporation
(together, "Golden"). Following a jury trial,
United obtained a judgment in its favor against all
defendants. At Docket Nos. 1956 WDA 2016 and 294 WDA 2017,
United appeals from that judgment because it failed to
include all of the elements of recovery that it sought. At
Docket No. 55 WDA 2017, Golden cross-appeals from the
judgment in favor of United. At Docket No. 82 WDA 2017, GKK
cross-appeals from the rejection of its cross-claim against
Golden. We vacate the judgment at Nos. 1956 WDA 2016 and 294
WDA 2017 and remand for further proceedings. We affirm the
judgment at Nos. 55 WDA 2017 and 82 WDA 2017.
owned the gas station at the Ross Township property until
2007, when it sold the property to GKK. There were several
underground tanks on the property that were used to store
gasoline, and, prior to the sale, Golden asked United, a
company that excavates tanks and does environmental cleanup
for gas stations, to submit quotes for the removal of the
tanks on the property.
and United had done business in the past. At trial,
United's president, Stephen Klesic, testified to
United's longstanding business relationship with Golden
and its president, George Kehm:
[Q] . . . How long has [United] done work for Mr. Kehm and
his companies? You said about 30 years?
A Over 30 years, it was in the early '70s - or late
'70s early, '80s.
Q Do you recall how many projects or jobs you've done in
that time period for him?
A From service calls to tank installations to tank removals,
probably over a thousand.
Q And how did these jobs typically start? Who arranged them?
A We would either get a call from Mr. Kehm or his secretary,
Kathy. If it was a service call, you know, usually in the
morning between 6 and 7:00 a.m., we were in, George [Kehm]
was in, Kathy was in. We'd get a call because he's
checking with his stations and there was a problem at one of
the stations that needed maintenance. If it was something
other than a general maintenance issue, we may get a fax,
hey, we have facility operations inspections which are
required by PADEP [the Pennsylvania Department of
Environmental Protection], they are to be done every three
years. And we would get a fax, hey, these inspections are up
for our facility and we need to do them and get them
Q And how were you typically paid for these jobs?
A We were typically paid in 30 days or less.
Q From your invoice?
A From my invoices.
Q When you sent an invoice from [United], did it typically
have an interest rate on it?
A Yes, our invoices were zero percent discount zero days, net
ten, and then a one-and-a-half percent 30 days - or interest
N.T., 5/11/15, at 56-57. Simply stated, after thirty days,
United would charge 1.5% interest per month on the balance.
Id. at 58.
testified that United typically would invoice Golden for its
services, and Golden would pay United and obtain
reimbursement from Pennsylvania's Underground Storage
Tank Indemnification Fund, a fund established by the
Commonwealth to assist with the removal of underground
petroleum storage tanks. See N.T., 5/11/15, at
1994, Kehm had been involved in about fifty remediations that
involved the Tank Fund, and he testified that he had never
had the Fund deny reimbursement. Id.
10 of the August 2007 agreement for sale of the property from
Golden to GKK provided as follows:
Seller's Expenses: Seller shall be responsible for cost
of deed preparation and all matters of title clearance.
Seller shall also be responsible for bringing the Property
into compliance with the applicable Pennsylvania Department
of Environmental Protection's Underground [Storage Tank]
(UST) regulations for site closure.
at ¶ 10 to United's Fourth Am. Compl., 2/29/12.
Closing on the sale of the property occurred in August or
September of 2008, and around that same time, Kehm directed
United to submit its quote for removal of the tanks to
Jonathon Kamin, GKK's manager. The quote estimated a cost
of $13, 567 to remove the storage tanks and any contaminated
material and to fill the resulting hole with uncontaminated
soil. In pertinent part, the estimate provided, "This
work will be handled on a Time & Material basis, while
all costs associated with the removal of the contaminated
material should be covered under [the Tank Fund] with a $5,
000 deductible per release, it is ultimately the
owner[']s responsibility for these additional
expenses." Ex. A to Fourth Am. Compl., 2/29/12. The
estimate did not include an integration clause. GKK signed
the estimate next to the word "Accepted."
Id. Although the signature is not dated, GKK
apparently signed on September 22, 2008. See N.T.,
5/11/15, at 82.
began work the next day and almost immediately discovered
contaminated soil. N.T., 5/11/15, at 83. United promptly
notified GKK, Golden, the Pennsylvania Department of
Environmental Protection ("DEP"), and the Tank
Fund, in order to initiate a formal claim for reimbursement.
Id. at 83. During the course of remediation, United
discovered additional storage tanks that had to be removed.
Id. at 87. According to United, GKK and Golden
directed United to perform the work needed to remediate the
contamination that it found and represented that its invoices
would be paid. Id. at 70-72.
connection, Golden's counsel cross-examined Klesic of
United regarding the basis for its claim against Golden
(which counsel personalized in his questions by referencing
Golden's president, Kehm) and whether United contended
that it was suing under the remediation contract that Klesic
(for United) had signed with Kamin of GKK:
Q. Do you know what contract you are suing Mr. Kehm under?
A. It is my understanding that that contract, as it is there,
was with Mr. Kamin. Mr. Kehm had guaranteed the cleanup of
the site to Mr. Kamin, and then subsequently ordered me to,
basically, do whatever is necessary to keep Mr. Kamin happy
and clean up the property.
Q. Just to be clear, you are not suing Mr. Kehm under this
A. It is a supplement to that contract.
N.T., 5/12/15, at 4-5. Klesic did not otherwise elaborate.
completed remediation in 2010, and the DEP approved
United's remediation work in 2012. N.T., 5/11/15, at
118-19. United sent invoices for its remediation work to GKK,
Golden, or (in most cases) both of them. The invoices totaled
$350, 000. GKK tendered payment of $17, 390.55. GKK requested
reimbursement from the Tank Fund, but because GKK failed to
timely submit a claim, GKK's request for reimbursement
was denied on June 10, 2009. N.T., 5/11/15, at
asked the Tank Fund's executive director to review the
denial, but the Tank Fund reaffirmed its decision.
Id. at 112. GKK missed the deadline to further
appeal the Tank Fund's decision. N.T., 5/12-13/15, at
on June 30, 2009, Golden paid United $100, 000 as partial
payment for the cleanup of the property, which left
approximately $230, 000 of unpaid invoices. N.T., 5/11/15, at
129. Golden's check included a notation that it was
"paid under protest." When asked about this
notation, Klesic (United's president) testified:
[Q:] What did you take the "paid under protest to
A [Golden] felt that the [Tank Fund] should be paying for the
cost of cleanup on this as did I because per the regulations
and the guidance, it should have been covered. We provided
documentation to refute the claims.
N.T., 5/11/15, at 115. Klesic later explained:
A My understanding was [that the $100, 000 check] was a
partial payment on the cleanup for the McKnight Road site.
And that if [GKK] was successful in the appeal with the fund
and the fund decided to pay, if they paid us for that work,
we would reimburse the portion back to [Golden], or there was
a letter written to [Golden] that he could submit[.]
Id. at 116. The last four invoices for the
remediation were sent only to GKK because Golden indicated it
would pay no more invoices. N.T., 5/11/15, at 101.
trial, however, Golden's president, George Kehm,
testified that it was Golden's responsibility to pay for
[Q. by GKK's counsel]. . . . Golden Oil entered into a
contract with GKK McKnight for the purchase of the McKnight
property; is that correct?
A. That is correct.
Q. And in a deposition you gave in this case, you stated it
was Golden Oil's responsibility to pay for the cleanup
A. That is correct.
Q. Is that still your understanding?
A. That is still correct. I'll tell you why. It was so
that [the Tank Fund] paid these 50 other accounts or 50 odd
accounts and always paid them. So why wouldn't they pay
N.T., 5/12-13/15, at 146. Kehm stood by his deposition
testimony in which, when asked, "what was your
understanding of your responsibility with the underground
storage tanks and transferring this property to GKK, "
he responded: "I informed them that it was my
responsibility. It is the law that I have to be responsible
for it. . . ." Id. at 151-52.
United sued both GKK and Golden for the balance due on its
invoices. In its fourth amended complaint
("Complaint"), it asserted claims for breach of
contract, unjust enrichment, continuing services, and damages
under the Contractor and Subcontractor Payment Act
("CASPA"), 73 P.S. §§ 501-516. The
contract claim was based on the written contract between GKK
and United (Exhibit A to the Complaint) and several invoices
and other documents in which GKK or Golden authorized
United's work. United's Fourth Am. Compl., at ¶
29. United alleged:
Despite repeated demands for payment and repeated promises
for payment, Defendants have failed and refused to pay the
full amounts due on the contract as set forth on the
invoices, and as summarized by the Statement of Past Due
Account attached hereto as Exhibit "B", and there
remains due and owing the amount of $180, 093, 40 plus
interest of $40, 510.74 through May 11, 2010 for a total of
$220, 804.14 as of May 11, 2010 plus further interest as
provided by agreement and practice, and costs as provided by
WHEREFORE, Plaintiff demands joint and several judgment
against all Defendants in the amount of Two Hundred Twenty
Thousand Six Hundred Four Dollars and 14 Cents ($220, 604.14)
plus further interest as provided by agreement and practice,
and costs as provided by law.
Id. at ¶ 30 & Ad Damnum Cl. In Count IV,
which alleged the CASPA claims, United averred that it was
"a contractor that performed construction work in
accordance with a contract with the Defendants, " but it
did not specifically identify the contract. United alleged
that its invoices for its work had not been paid.
Id. at ¶¶ 46-52. United continued:
53. As a result of the Defendants' failure to timely pay
Plaintiff for work performed and invoiced (less the prior
amounts paid to Plaintiff by the Defendants and less the
amounts paid to Plaintiff by USTIF), the Defendants owe
interest at one percent (1%) per month as required by the
agreement with Plaintiff, and a statutory penalty of one
percent (1%) per month as required by the terms of the
Pennsylvania Contractor and Subcontractor Payment Act
("CASPA")[, ] 73 P.S. §501, et seq.
54.As a result of the above averments, Plaintiff asserts its
right to receive:
(a) Full payment of its invoiced amounts, less the prior
partial amounts paid ...