More than two years after vacating a $750,000 bench verdict and calling for a new trial because of what it said was a “conclusory” opinion by the trial judge, the Pennsylvania Superior Court, taking a second look at the case on remand from the state Supreme Court, has affirmed the lower court's judgment.

Last October, in Dolan v. Hurd Millwork, the justices unanimously reversed a September 2017 ruling in which the Superior Court said it was forced to vacate the judgment and order a new trial because the trial judge who rendered the verdict failed to adequately explain his reasoning and had since retired from the bench.

Reexamining the case with instructions from the Supreme Court to determine whether the trial judge's factual findings were supported by competent evidence, a panel of Superior Court President Judge Susan Peikes Gantman, Judge Anne Lazarus and Senior Judge William Platt affirmed the judgment in a June 21 opinion, finding that “none of appellants' claims on appeal merits relief.”

According to court documents, now-former Delaware County Court of Common Pleas Judge James F. Proud entered a $500,000 general verdict in favor of plaintiffs Leo Dolan Jr. and Cherie Dolan and against defendants Bentley Homes, Garvin Mitchell Corp., Chadwell Associates, Chadwell Realty and Harrison Community Association, in a dispute over construction defects in the Dolans' custom-built home. Proud did not, however, address the defendants' cross-claim against window installer Hurd Millwork Co., which had settled with the Dolans and did not participate in the trial.

Proud ultimately molded the verdict to $748,287 and the defendants—with the exception of Hurd Millwork—appealed. But the Superior Court, finding that Proud had issued only “a conclusory three-page opinion pursuant to Pa.R.A.P. 1925(a),” remanded the case with instructions for Proud to file a supplemental opinion. By that point, however, Proud had retired and no one else on the bench was available to prepare a supplemental opinion.

The same three-judge Superior Court panel then issued a follow-up opinion Feb. 17, 2017, vacating Proud's verdict and remanding for a new trial.

“Because the trial judge failed to explain his decision throughout this case and is no longer on the bench to give us the information necessary for our review, the record remains insufficient for us to address appellants' claims,” Gantman said in that opinion.

But Justice Sallie Updyke Mundy, writing for the high court in an Oct. 17 opinion, took guidance from the Supreme Court's 2002 ruling in Armbruster v. Horowitz, which dealt with appellate review of a jury verdict where the trial judge resigned from the bench before he could rule on a post-trial weight of evidence motion.

The Armbruster court ultimately determined that ordering a new trial in such a case “would be extremely disruptive to the integrity of verdicts and to the judicial process.” Instead, the justices in that case said the appellate court should review the weight of evidence claim in the first instance.

“Applying the reasoning of Armbruster to this case we conclude that where a Rule 1925(a) opinion is deemed inadequate and the trial judge is unavailable to provide a supplemental opinion, the appellate court should review the legal issues raised in the appellant's Rule 1925(b) statement of errors complained of on appeal,” Mundy said. ”As the Superior Court has noted, when deciding issues of law an appellate court is not required to defer to the conclusions of a trial court. This is consistent with the fact that for questions of law, an appellate court's standard of review is de novo and its scope of review is plenary. Applying this standard and scope, the Superior Court will be able to review the entire record and ultimately determine whether the trial court correctly decided the legal issues raised in Bentley's appeal.”

To the extent that the appeal challenges any factual findings made by the trial judge, the appellate court should determine whether they're supported by competent evidence, Mundy added.

Mundy was joined by Chief Justice Thomas Saylor and Justices Max Baer, Debra Todd, Christine Donohue, Kevin Dougherty and David Wecht.

In its June 21 opinion affirming the trial court's judgment, the Superior Court rejected the defendants' arguments that the Dolans' claims sounded in contract rather than tort.

“According to appellee, appellants led him to believe the problems were isolated and fixable and appellants had made the necessary repairs, even though appellants knew the windows were defective, would cause systemic problems throughout appellee's entire home, and needed to be replaced—not 'repaired,'” Gantman said. “These allegations reach beyond the contractual obligations set forth in the parties' agreement of sale. Instead, the agreement of sale merely served as the vehicle to establish the ongoing relationship between the parties, during which appellants allegedly committed various torts. Consequently, the gist of the action doctrine did not bar appellee's tort claims.”

The panel also disagreed with the defendants' argument that the economic loss doctrine precluded the Dolans' claims, finding that the damages exceeded the costs to repair and replace the defective windows and that the damages involved the internal structures and personal property within the Dolans' home, not just the windows.

The panel also rejected the defendants' arguments that the Dolans' claims were time-barred because he became aware of problems with his windows in 2000 but did not file a writ of summons until 2005.

“The record shows appellee did not possess sufficient critical facts to put him on notice of a systemic problem in his home until 2005, when he observed the large green hole and subsequently learned of the litigation between appellants and Hurd Millwork,” Gantman said. “Thus, we see no reason to disturb the court's conclusion that the discovery rule tolled the applicable two-year statute of limitations concerning appellee's negligence, negligent misrepresentation, and intentional misrepresentation/fraud claims.”

And while the defendants also contended that part of the $750,000 award improperly included punitive damages, Gantman said the record was clear that the award was made up entirely of compensatory damages.

“The court awarded appellee $500,000.00 in damages, evidencing only a compensatory damages award,” Gantman said. ”The court's award of delay damages in the amount of $248,287.67, on the basic award of $500,000.00 in damages, confirms the court awarded only compensatory damages, as delay damages are not available for a punitive damages award.”

The defendants also failed in their argument that Hurd Millwork should indemnify them in the case because it was the window installer

According to Gantman, ”the record shows appellants effectively abandoned their cross-claim.”

“Moreover, appellants had already reached a settlement with Hurd Millwork in October 2002, ostensibly for damages involving the defective windows installed in appellee's home,” Gantman said. ”Appellants cannot recover twice for the same claim.”

The Dolans' attorney, Anthony S. Pinnie of Pinnie Law Offices in Media, said, “It's been a long, strange trip. We're back to where we started. We think all along this was the right decision.”

Pinnie said he plans to file an amendment to the original judgment adding in additional interest that has accrued.

Counsel for all the defendants other than Hurd Millwork, Kimberly L. Russell of Kaplin Stewart in Blue Bell, could not be reached for comment. Counsel for Hurd Millwork, Jeanne Schubert Barnum of Schnader Harrison Segal & Lewis in Philadelphia, also could not be reached.