The Legal Intelligencer | May 5, 2015
Koller Concrete, Inc. v. Tube City IMS, LLC, PICS Case No. 15-0664 (Pa. Super. April 21, 2015) Donohue, J. (19 pages).
In a case arising from sale of allegedly defective cement, trial court properly allowed witness to testify even though there was a “technical” violation of a sequestration order because there were no grounds for sequestration under Rule 615. Affirmed.
Appellee concrete producer for contractors bought cement from appellant to use in its concrete mixes. Appellee used the product because it was made with ground granulated blast-furnace slag which yielded a stronger concrete mixture. Appellant always represented that its product was made with the ground granulated blast-furnace slag and that it met the specifications of the industry’s standard for ground granulated blast-furnace slag.
In 2006, appellee began to receive complaints from its customers about cracking and other defects. Appellee’s employee investigated and petrographic analysis showed that the samples contained no ground granulated blast-furnace slag. Appellee suspected that the product it had bought from appellant was made with air-cooled slag and appellant admitted that it had experimented with air-cooled slag but denied selling any product containing air-cooled slag.
Appellee sued, alleging breach of contract, unjust enrichment, detrimental reliance, breach of express warranties, breach of implied warranty, fraud, negligent misrepresentation and violations of UTPCPL. At trial, the judge granted appellant’s motion for nonsuit on the UTPCPL, attorney fees and punitive damages claims and the jury awarded appellee $347,138.19 on the remaining claims. Appellant filed post-trial motions seeking JNOV, a new trial or remittitur which the trial court denied.
On appeal, appellant challenged multiple evidentiary rulings made both before and during trail. Appellant argued that the trial court should have excluded appellee’s core samples because appellee failed to establish a credible chain of custody. The trial court did not abuse its discretion in determining that the testimony provided a sufficient chain of custody and that any gaps in the chain were matters for the jury. A witness testified as to the taking, handling, testing and storage of the core samples. Appellant argued that the error was that the testimony was not credible but credibility determinations were the sole province of the jury and an appellate court could not disturb a jury’s credibility determination.
Appellant also challenged the trial court’s handling of its request to strike a witness’ testimony because he violated a sequestration order. The trial court had ruled that while there was a technical violation of the sequestration order, there was no “specific prejudice” to appellant and allowed the witness to testify. Counsel for appellee had informed the court that the witness was “integral to [his] ability to present the case” and thus, the trial court did not abuse its discretion in determining that the sequestration was not authorized by Rule 615 and there was no error in the court’s lifting the sequestration order and in refusing appellant’s request for a jury instruction.
Appellant contended that the trial court erred in refusing its request to limit damages to the amounts claimed for two of appellee’s projects on the basis that the appellee only produced core sample evidence from those two projects. Appellee presented expert testimony that the defective product was used in five projects The jury was free to accept that evidence as credible. Thus, the amount of damages bore a reasonable relationship to the evidence and there was no reason to disturb it.