BUDDY'S PLANT PLUS CORP. v. CENTIMARK CORPORATION

Filing 313

MEMORANDUM OPINION & ORDER re MOTION for Reconsideration re 264 Order filed by CENTIMARK CORPORATION, 278 MOTION for New Trial filed by CENTIMARK CORPORATION, 270 Renewed MOTION for Judgment as a Matter of Law First filed by CENTIMARK CORPORATION, 272 Renewed MOTION for Judgment as a Matter of Law Second filed by CENTIMARK CORPORATION. CentiMarks motion for judgment as a matter of law 270 is DENIED; CentiMarks motion for judgment as a matter of law 272 is DENIED; CentiMarks motion for a new trial [ECF No. 278] is DENIED; CentiMarks motion for reconsideration of the 264 Order denying the oral motion to mold the verdict 295 is DENIED. Signed by Magistrate Judge Robert C. Mitchell on 3/31/2014. (ajt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
BUDDY’S PLANT PLUS
CORPORATION,
Plaintiff,
v.
CENTIMARK CORPORATION,
Defendant.

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Civil Action No. 10-670

Magistrate Judge Robert C. Mitchell

MEMORANDUM OPINION AND ORDER OF COURT

ROBERT C. MITCHELL, Magistrate Judge.
I.

INTRODUCTION
Presently before the Court are the following motions filed by defendant, CentiMark

Corporation (“CentiMark”):
1. A renewed motion for judgment as a matter of law [ECF No. 270];
2. A renewed motion for judgment as a matter of law [ECF No. 272];
3. A motion for a new trial [ECF No. 278]; and
4. A motion for reconsideration of the [ECF No. 264] Order denying oral motion to mold
the verdict. [ECF No. 295].
The issues have been fully briefed. For the following reasons, the Court finds that
CentiMark is not entitled to judgment as a matter of law, a new trial, or for reconsideration of
any issue. Accordingly, CentiMark’s motions are denied.
II.

BACKGROUND
Because the facts of the case are well known by the parties, the Court will only recount

the facts necessary for the disposition of the present motions. Plaintiff, Buddy’s Plant Plus
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Corporation, (“Buddy’s”) brought this breach of contract action against CentiMark for the
installation of an allegedly defective roof coating system installed by CentiMark at Buddy’s
facilities. A jury trial was held from November 19, 2013 to December 2, 2013 and the jury
returned a verdict in favor of plaintiff in the amount of $1,800,000.00. At the close of Buddy’s
case in chief, CentiMark moved for judgment as a matter of law pursuant to Federal Rule of
Civil Procedure 50 which the Court initially took under advisement and subsequently denied.
Upon return of the jury’s verdict, defendant moved to mold the verdict to an amount not
exceeding the contract price, approximately $550,000. The court also denied that motion.
CentiMark now renews its motions for judgment as a matter of law and motion for a new
trial and seeks reconsideration of the Court’s decision denying its motion to mold the verdict.
The Court will address each motion in turn.
III.

STANDARD OF REVIEW

a. Federal Rule of Civil Procedure 50(b)
Under Federal Rule of Civil Procedure 50,
If a party has been fully heard on an issue during a jury trial and
the court finds that a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue, the
court may: (A) resolve the issue against the party; and (B) grant a
motion for judgment as a matter of law against the party on a claim
or defense that, under the controlling law, can be maintained or
defeated only with a favorable finding on that issue.
Fed. R. Civ. P. 50(a). Where a party renews the motion after trial, the court may: “(1) allow
judgment on the verdict, if the jury returned a verdict; (2) order a new trial; or (3) direct the entry
of judgment as a matter of law.” Fed. R. Civ. P. 50(b). In determining a motion for judgment as
a matter of law, a court must consider the evidence in the light most favorable to the non-moving
party and draw all reasonable inferences the jury could have drawn from the evidence. Lightning

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Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993). A Rule 50(b) motion should only
be granted if there is no rational basis for the jury’s verdict. Id. “More particularly, a judgment
notwithstanding the verdict may be granted under Fed. R. Civ. P. 50(b) only if, as a matter of
law, the record is critically deficient of that minimum quantity of evidence from which a jury
might reasonably afford relief.” Addie v. Kjaer, 737 F.3d 854, 866 (3d Cir. 2013) (quoting
Trabal v. Wells Fargo Armored Serv. Corp., 269 F.3d 243, 249 (3d Cir. 2001)). Accordingly, a
court should grant a party’s motion for judgment as a matter of law “sparingly.” Pitts v.
Delaware, 464 F.3d 151, 155 (3d Cir. 2011).
b. Federal Rule of Civil Procedure 59
A motion for a new trial or to alter or amend a judgment under Federal Rule of Civil
Procedure 59 may be granted “when the verdict is contrary to the great weight of the evidence;
that is where a miscarriage of justice would result if the verdict were to stand,” Pryer v. C.O. 3
Slavic, 251 F.3d 448, 453 (3d Cir. 2001), or “when the court believes the verdict results from
jury confusion.” Brown v. Nutrition Mgmt. Servs. Co., 370 Fed. App’x 267, 268-70 (3d Cir.
2010). In determining whether a new trial should be granted, the court must draw all reasonable
inferences in favor of the party who prevailed at trial. See Moyer v. United Dominion Indus., 473
F.3d 532, 545 (3d Cir. 2007).
Although a court has the power to set aside a jury’s verdict due to the lack of evidence,
the court’s power to do so for this reason “is severely circumscribed.” Victor v. Lawler, 2012
WL 2121331, at *2 (M.D.Pa. June 12, 2012). If the verdict is against the weight of the evidence,
a new trial is “proper only when the record shows that the jury’s verdict resulted in a miscarriage
of justice or where the verdict, on the record, cries out to be overturned or shocks our
conscience.” Greenleaf v. Garlock, Inc., 174 F.3d 352, 366 (3d Cir. 1999) (citations omitted).

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See also Murray v. Morse, 610 F.2d 149, 152 (3d Cir. 1979) (the verdict must be “so
unreasonable as to offend the conscience of the court.”). Additionally, where a motion for a new
trial is based on insufficient evidence, a new trial is the proper remedy only if “a miscarriage of
justice” would occur if the jury’s verdict would not be disturbed. Williamson v. Consolidated
Rail Corp., 926 F.2d 1344, 1353 (3d Cir. 1991).
c. Federal Rule of Civil Procedure 61
Pursuant to Federal Rule of Civil Procedure 61:
Unless justice requires otherwise, no error in admitting or
excluding evidence – or any other error by the court or a party – is
ground for granting a new trial, for setting aside a verdict, or for
vacating, modifying, or otherwise disturbing a judgment or order.
At every stage of the proceeding, the court must disregard all
errors and defects that do not affect any party’s substantial rights.
Fed. R. Civ. P. 61. Thus, a court’s decision to grant a new trial based on errors of law “is limited
only by the principle that such errors must not be harmless – that is, a court may not grant a new
trial based on ‘errors and defects that do not affect any party’s substantial rights.’” Hailey v. City
of Camden, 631 F.Supp.2d 528, 540 (D.N.J. 2009) (quoting Fed. R. Civ. P. 61).
d. Motion for Reconsideration
A motion for reconsideration “must rely on one of three grounds: (1) an intervening
change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear
error of law or prevent manifest injustice.” Kulesa v. Rex, 519 Fed. App’x 743, 746 (3d Cir.
2010) (quoting Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010).
CentiMark argues that the third situation applies here for multiple reasons, therefore that
subsection will frame the Court’s analysis. To demonstrate clear error or manifest injustice, the
United States Supreme Court mandates a “definite and firm conviction that a mistake has been
committed.” Easley v. Cromartie, 532 U.S. 234, 242 (2001) (citing United States v. U.S. Gypsum
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Co., 333 U.S. 364, 395 (1948)). Moreover, a defendant must “base its motion on arguments that
were previously raised but were overlooked by the Court.” United States v. Jasin, 292 F.Supp.2d
670, 676 (E.D.Pa. 2003). Moreover, a motion for reconsideration “is not a proper vehicle to
merely attempt to convince the court to rethink a decision it has already made[,]” Colon v.
Colonial Intermediate Unit 20, 443 F.Supp.2d 659, 667 (M.D.Pa. 2006) (citations omitted) and
“parties are not free to relitigate issues that the Court has already decided.” Jasin, 292 F.Supp.2d
at 676 (citations omitted). Such a motion may not be used by an “unsuccessful party to rehash”
arguments previously disposed of by the court. Keyes v. Nat’l R.R. Passenger Corp., 766 F.Supp.
277, 280 (E.D.Pa. 1991).
IV.

DISCUSSION

a. CentiMark’s Motions for Judgment as a Matter of Law
CentiMark moves for judgment as a matter of law and provides three arguments in
support thereof: (1) no reasonable jury could conclude that Buddy’s timely filed suit; (2)
Buddy’s does not have standing to bring claims related to the destruction of the roof; and (3) the
Court lacks subject matter jurisdiction for Buddy’s failure to join Studer Rentals under Federal
Rule of Civil Procedure 19. The Court finds that each of CentiMark’s arguments fail and
accordingly will deny each motion for judgment as a matter of law. Additionally, CentiMark
moves for a new trial based on these same arguments which will also be denied. Each argument
will be addressed in turn.
1. One-year Statute of Limitations
CentiMark first argues that judgment as a matter of law is appropriate because no
reasonable jury could conclude that Buddy’s timely filed suit in compliance with the contractual
one-year statute of limitations. See Def.’s Mot. for J. as a Matter of Law [ECF No. 270] at ¶ 4.

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This Court held that the one-year statute of limitations provision in the contract was valid and
enforceable and if the jury found that if Buddy’s knew or in the exercise of reasonable diligence
should have known of its claims against CentiMark prior to November 3, 2008, Buddy’s suit was
time-barred. Id. at ¶ 5. The jury found that Buddy’s did not know or should have known in the
exercise of reasonable diligence that before November 3, 2008 CentiMark materially failed to
perform one or more of its duties under the contract, and did not know or should have known in
the exercise of reasonable diligence that the continued leaking at its buildings was the result of
CentiMark’s defective material or workmanship. See Verdict Slip [ECF No. 261] at 1.
Buddy’s responds that because the statute of limitations was a contractual provision, only
an interpretation of that provision controls the application limitations period. See Pl.’s Br. in Op.
of Def.’s Mot. for J. as a Matter of Law [ECF No. 289] at 1.
The contractual provision regarding the statute of limitations states: “Any action by
purchaser to enforce any claims against CentiMark, must be commenced within one (1) year
from the date that a defect in materials or workmanship, or other breach or any other claim is
discovered or reasonably should have been discovered.” 11/8/2005 Non-Prorated Limited Roof
Warranty IV(a) [ECF No. 4-2 at 20]. In issuing its memorandum opinion on summary judgment,
this Court held that the date Buddy’s discovered or reasonably should have discovered that
CentiMark’s materials or workmanship was defective was a question of fact within the province
of the jury.1 Memo. Op. and Order [ECF No. 157] at 17. CentiMark has not convinced this

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Specifically, the Court held with respect to the validity of the statute of limitations provision: “In the instant
case, the applicable limitations period is one year after the breach or injury had been or should have been
discovered. Buddy’s filed the instant action on November 3, 2009. However, whether Buddy’s was diligent and
reasonable in discovering its injury is a jury determination. Whether the acts of CentiMark continuing to fix the roof
for a period spanning four years after the Job Completion Form was executed, prevented Buddy’s from discovering
any injury is a question of fact examining Buddy’s reasonableness in its discovery of its injury. Therefore, if a jury
finds that it was reasonable for Plaintiff to discover the breach of contract at a time before November 3, 2008 (one
year prior to the action’s commencement), the complaint is untimely and Defendant will be entitled to judgment as a
matter of law as to Counts IV and V at that time. In the alternative, if the jury believes Plaintiff’s contention that it
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Court that it should have otherwise made a determination of whether Buddy’s practiced
“reasonable diligence” in discovering a defect in material and/or workmanship.

Whether

Buddy’s did so was a question of fact for the jury to determine and the Court declines to redecide this issue. Furthermore, there was substantial evidence for the jury to determine that
Buddy’s filed suit within the applicable limitations period.

Buddy’s cooperated with

CentiMark’s roofing expert who gave no conclusive evidence that the roof leaked due to
CentiMark’s defective materials and/or workmanship.

Additionally, there was evidence

introduced that Buddy’s expert Robert Standford only reported to Buddy’s that the leaking was
caused by CentiMark’s use of defective workmanship and/or materials in July 2009, five months
before Buddy’s filed suit.
Accordingly, the jury’s finding that suit was timely filed was supported by substantial
evidence and this Court will not disturb the verdict rendered. Additionally, the Court has already
determined that this was properly a factual determination for the jury to decide and it was not a
clear error of law to reconsider the Court’s past ruling. CentiMark’s motion for judgment as a
matter of law as it pertains to the statute of limitations issue is denied.
2. Lack of Standing
CentiMark next argues that this Court lacks jurisdiction over this matter because Buddy’s
lacked standing to sue and/or failed to join a necessary party. CentiMark argues that Ed Studer,
President of Buddy’s, testified that Buddy’s is not the owner of the buildings that are the subject
of the litigation upon which CentiMark installed a roof system and performed various warrantyrelated repairs. Def.’s Mot. for J. as a Matter of Law [ECF No. 272] at ¶ 4. While CentiMark
concedes that Buddy’s has standing to sue under a contractual theory based on privity, it argues

did not discover the breach until a time on or after November 3, 2008, Plaintiff’s complaint was timely filed. Memo.
Op. and Order [ECF No. 157] at 17.
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that Buddy’s does not have standing to sue for any claim for destruction of the entire roof that
necessitates replacement because Buddy’s does not have any property interest in the roofs, as the
buildings are owned by Studer Rentals, a non-party to the suit who is a required party under
Federal Rule of Civil Procedure 19(a). See Def.’s Br. in Supp. of Mot. for J. as a Matter of law
[ECF No. 273] at 4-5. CentiMark claims that if it “actually destroyed the roof of the . . .
[b]uildings, the damages it owes are to Studer Rentals, not Buddy’s. Moreover, if this Court
awarded damages to Buddy’s for CentiMark’s alleged destruction of the roof, CentiMark could
be sued in a separate case by Studer Rentals and be exposed to double liability.” Id. at 6.
Buddy’s responds that there was enough factual evidence to show that it had standing to
bring these claims because Studer testified to the fact that Buddy’s had a possessory interest in
the buildings, and under the lease agreement, Buddy’s was under a duty to maintain and insure
the buildings. See Pl.’s Br. in Op. of Def.’s Mot. for J. as a Matter of Law [ECF No. 282].
The Court notes that this is the first time that CentiMark has challenged Buddy’s
standing. But, because the question of standing is jurisdictional and not subject to waiver, the
court must address this issue. See City of Edmond v. Robinson, 517 U.S. 1201, 1201-02 (1996);
Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994) (“Standing represents a
jurisdictional requirement which remains open to review at all stages of the litigation.”).
Article III of the Constitution limits federal courts to adjudication of only “cases and
controversies.” U.S. Const. art. III, § 2, cl. 1.

“Courts enforce the case-or-controversy

requirement through the several justiciability doctrines[,] . . . [p]erhaps the most important of
[which] is standing.” American Auto. Inc. Co. v. Murray, 658 F.3d 311, 317 (3d Cir. 2011)
(quoting Toll Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d Cir. 2009)). The doctrine
of standing requires that the litigant show it is entitled to have the “court decide the merits of its

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case.” Murray, 658 F.3d at 317 (citing Allen v. Wright, 468 U.S. 737, 750-51 (1984)).
Constitutional standing has three elements: “(1) an injury in fact that is a concrete and
particularized invasion of a legally protected interest that is actual or imminent, not conjectural
or hypothetical; (2) causation, the showing of a fairly traceable connection between the alleged
injury in fact and the alleged conduct of the defendant; and (3) redressability, that is, it must be
likely as opposed to merely speculative that the injury will be redressed by a favorable decision.”
Murray, 658 F.3d at 317-18 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)) (internal quotation marks omitted).
Here, the Court finds that Buddy’s has standing to sue for a claim for the destruction of
the entire roof. Buddy’s suffered a concrete injury, i.e., a leaking roof, that was caused by
CentiMark’s failure to coat the roof with a waterproofing material as set forth in the contract
and/or the failure to repair the defects from workmanship and/or materials, causing more damage
to the roof, and an outcome favorable to Buddy’s, i.e., damages, will redress the injury. Buddy’s
also has standing to bring claims relative to damage done to the roof during the warranty period.
Buddy’s had a possessory interest in the buildings via the lease agreement between Buddy’s and
Studer Rentals. See Studer Rentals Lease Agreement [ECF No. 127-9].

Moreover, the

undisputed testimony of Ed Studer was that the interest in repairing Buddy’s roof was assigned
to Buddy’s and this was evidenced by the fact that Buddy’s maintained insurance on the
buildings and brought suit against CentiMark. See Tr. [ECF No. 306] at 2-5. Further, the lease
agreement explicitly permits the assignment of rights. See Lease Agreement [ECF No. 127-9] at
¶ 18 (“Lessor shall have the right to assign or transfer, in whole or in part, every feature of its
right and obligations hereunder and in the building complex and premises. Such assignments or
transfers may be made to a corporation, trust, trust company, individual or group of individuals,

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and howsoever made shall be in all things respected and recognized by Lessee.”). 2 Moreover,
Studer has inexplicably testified and provided by sworn affidavit that Studer Rental’s rights to
litigate the matter have been assigned to Buddy’s. See Pl.’s Br. in Op. of Def.’s Mot. for J. as a
Matter of Law [ECF No. 282] at 4.
Therefore, Buddy’s has standing to bring claims for the destruction of the roof, and
accordingly, CentiMark’s motion for judgment as a matter of law on this claim is denied.
3. Federal Rule of Civil Procedure 19
CentiMark argues that this Court “lacks subject matter jurisdiction over Buddy’s claims”
because “the principals of Buddy’s and Studer failed to join as plaintiffs and/or otherwise failed
to account for the interests of Studer Rentals, a required party that could have been feasibly
joined.” Def.’s Br. in Supp. of Mot. for J. as a Matter of law [ECF No. 273] at 7.
Federal Rule of Civil Procedure 19 requires that
A person who is subject to service of process and whose joinder
will not deprive the court of subject-matter jurisdiction must be
joined as a party if:
(A) in that person’s absence, the court cannot accord
complete relief among existing parties; or
(B) that person claims an interest relating to the subject of
the action and is so situated that disposing of the action in the
person’s absence may:
(i) as a practical matter impair or impede the
person’s ability to protect the interest; or

2

The lease agreement provides in other relevant parts: “Lessor shall maintain in good condition all of the
building roof and exterior walls” Studer Rentals Lease Agreement [ECF No. 127-9] at ¶ 4. It further provides:
“Lessee shall obtain and keep in full force and effect during the lease term, at its own costs and expense, adequate
public liability insurance, such insurance to afford protection against any and all claims for personal injury, death, or
property damage occurring in, upon, adjacent to, or connected with the leased premises and any part thereof, said
insurance to be written by a good and solvent insurance company of recognized standing, admitted to do business in
the State of Texas, which shall be reasonably satisfactory to the Lessor.” Id. at ¶ 16.

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(ii) leave an existing party subject to a substantial
risk of incurring double, multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a).
CentiMark argues that under Rule 19(a)(B)(ii), Studer Rentals is an entity with an interest
related to the subject of the action because it owns certain buildings at issue, and that disposing
of this action in its absence may leave CentiMark subject to a substantial risk of incurring
double, multiple or otherwise inconsistent obligations from Studer Rentals. Although CentiMark
argues that Buddy’s failed to join this party, it ignores the fact that Rule 19 permits any party to
move for the joinder of a non-party. Therefore, we will construe CentiMark’s motion as one for
joinder of Studer Rentals.
First and foremost, CentiMark’s reasoning that this court lacks subject matter jurisdiction
for failing to join Studer Rentals as a plaintiff is legally untenable. By CentiMark’s own
admission, Studer Rentals is a “Texas corporation . . . [and] shares an address and officers with
Buddy’s. Meanwhile, CentiMark is a Pennsylvania corporation.” Def.’s Br. in Supp. of Mot. for
J. as a Matter of law [ECF No. 273] at 7. CentiMark’s argument that this Court lacks subject
matter jurisdiction, while admitting that joining Studer Rentals would not divest the court of
subject matter jurisdiction is perplexing. Adding Studer Rentals as a plaintiff would not disturb
this court’s diversity jurisdiction.
Next, the court finds that CentiMark’s motion is untimely. A motion to dismiss for
failure to join an indispensable party “must be raised before pleading if a responsive pleading is
allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an
opposing party may assert at trial any defense to that claim.” Fed. R. Civ. P. 12(b). Only a Rule
19(b) defense for failure to join an indispensable party is preserved until trial. Fed. R. Civ. P.

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12(h)(2). See also Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 110
(1968); Judwin Properties, Inc. v. U.S. Fire Ins. Co., 973 F.2d 432, 434 (5th Cir. 1992) (a Rule
19 claim “must normally be raised in a timely fashion prior to trial.”) (emphasis added).
Therefore, a motion under Rule 19 is only properly preserved until after trial if joinder would
divest the court of subject matter jurisdiction in the first instance. A Rule 19(b) claim is only
preserved until trial, as set forth in the plain language of Rule 12(h).
Here, we do not reach a Rule 19(b) analysis, because “[a] Rule 19 analysis only proceeds
to subpart (b) [and thus will be preserved until trial] if joinder of the parties would not be
feasible[.]” Principal Life Ins. Co. v. DeRose, 2012 WL 1642606, at *6 (M.D.Pa. May, 10,
2012). Joinder of Studer Rentals is feasible because as discussed, supra, it would maintain
diversity. However, “Rule 12(h)(2) does not preserve a party’s right to raise a defense based on
Rule 19(a).” Id. The court finds that CentiMark’s motion to add Studer Rentals is made untimely
because this analysis does not warrant a Rule 19(b) or otherwise jurisdictional discussion.3 See
also Provident, 390 U.S. at 110 (“After trial, however, if the defendant has failed to assert this
interest [under Rule 19], it is quite proper to consider it foreclosed.”). Accordingly, the motion is
denied as untimely.
b. CentiMark’s Motion for a New Trial
In addition to seeking a new trial based on the arguments set forth in its motions for
judgment as a matter of law, CentiMark seeks a new trial based on alleged errors of law
committed by this Court which prejudiced CentiMark and contributed directly to the allegedly
erroneous jury verdict. See Def.’s Mot. for New Trial [ECF No. 278]. Specifically, CentiMark
3

The court also notes that CentiMark knew that Studer Rentals owned a majority of the buildings in question
as early as September 2011 but failed to move for joinder of Studer Rentals as an involuntary plaintiff and presents
this motion after a trial on the merits was held and a judgment on the jury’s verdict was rendered. See Dep. of Ed
Studer [ECF No. 273-1] (“Buddy’s owns the original Building No. 1. and I believe every building subsequent to that
is owned by Studer Rentals.”).
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argues that it was error of law for the court to: (1) allow the expert testimony of Kirby Hartman
who failed to produce an expert report in adherence to Federal Rule of Civil Procedure
26(a)(2)(B) or (C) and whose testimony was irrelevant under Daubert, and allow Buddy’s to add
the expert testimony of Kirby Hartman to its pre-trial statements after the close of discovery and
after the deadline to file motions for summary judgment; (2) allow Mr. Studer to testify about an
alleged maintenance obligation owed by Buddy’s to Studer Rentals when Buddy’s failed to
produce a written lease evidencing the same, despite CentiMark’s discovery requests for such
documents; (3) allow Buddy’s to enter into evidence numerous videos and photographs depicting
leakage at the building, when such videos and photographs did not accurately depict the
condition of the roof and building when CentiMark completed the installation of the coating
system in November 2005; (4) instruct the jury erroneously by failing to articulate Buddy’s
affirmative duty to investigate the nature and cause of its injury; and (5) instruct the jury
erroneously by instructing the jury on causes of action and claims that were prohibited by the
terms of the contract; and (6) that Buddy’s failed to adequately prove the amount of its damages.
See Def.’s Mot. for New Trial [ECF No. 278] at ¶ 6. CentiMark also argues that the damages
awarded to Buddy’s for a replacement of the roof was a clear error of law due to the contractual
terms. See Def.’s Br. in Supp. of Mot. for New Trial [ECF No. 279] at 3-5. Because the issue of
the damages is better addressed in CentiMark’s motion to mold the verdict, it will be discussed
in that section infra. The Court will address each remaining argument in turn.
1. Expert Testimony of Kirby Hartman
CentiMark argues that a new trial is necessary because he failed to produce an expert
report that complied with the Federal Rules of Civil Procedure and because he was an
incompetent witness under Daubert.

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As to the contested expert report, which was a one page estimate for the cost of installing
a brand new roof on the buildings, CentiMark argues that it failed to conform to the standards of
Rule 26(a)(2)(B) or (C) because it did not contain a statement of all opinions, facts, or data
considered in forming opinions, qualifications, a list of publications or other cases where
testimony was offered, or a curriculum vitae. See Def.’s Br. in Supp. of Mot. for New Trial [ECF
No. 279] at 6. CentiMark seeks sanctions under Fed. R. Civ. P. 37(c)(1) that the witness’s
testimony be stricken, as he should not have been permitted to testify. Further, CentiMark
argues that Hartman was not a qualified expert under Daubert because his report lacked a
sufficient basis in fact, technical knowledge, or other trait that would deem the report and
testimony worthy of belief. Id. at 7. Lastly, CentiMark argues that Buddy’s untimely disclosed
Hartman as an expert witness in violation of Federal Rules of Civil Procedure 26(a)(1)(A)(i),
26(a)(2)(D) and 26(e)(1)(A). Id. at 10.
Buddy’s responds that the Court properly admitted Hartman’s testimony because he is a
qualified roofing contractor with twenty-five years of roofing experience who testified only on
the cost to replace the roof panels, and defendant deposed Hartman eleven months before trial, so
it suffers no prejudice. Pl.’s Br. in Op. of Def.’s Mot. for New Trial [ECF No. 296] at 6.
First and foremost, CentiMark’s arguments were the subject of two previous motions by
CentiMark, both rejected by this Court, therefore the Court will treat these as reconsideration
motions of the Court’s decisions permitting Kirby Hartman to testify. See Memo. Order [ECF
No. 151]; Memo Op. [ECF No. 234]. As for CentiMark’s Daubert challenge to Hartman’s
testimony, the Court finds that Hartman was a sufficiently qualified expert under Daubert.
Under Federal Rule of Evidence 702

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A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise, if:
(a) the expert’s scientific, technical, or otherwise
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and
methods; and
(d) the expert has reasonably applied the principals and
methods to the facts of the case.
Fed. R. Evid. 702. Rule 702 is not to be employed as an exclusionary rule, but rather is “meant
to instruct the district courts in the sound exercise of their discretion in making admissibility
determinations.” Holbrook v. Lykes Bros. S.S. Co., Inc., 80 F.3d 777, 782 (3d Cir. 1996). Under
Daubert v. Merrell Dow Pharmaceuticals, Inc., a district court must conduct a preliminary
examination of the reliability of the expert testimony by determining whether
(1) the theory or technique employed by the expert is scientific
knowledge that will assist the trier of fact; (2) the theory or
technique has been subjected to peer review and publication; (3)
the known or potential rate of error, and the existence and
maintenance of standards for controlling the technique’s operation
and (4) the general acceptance of the theory or technique.
Perlman v. Universal Restoration Sys., Inc., 2013 WL 5278211, at *7 (E.D.Pa. Sept. 9, 2013)
(citations omitted). This list is not exhaustive, nor is it applicable in every case. Kannankeril v.
Terminix Intern. Inc., 128 F.3d 802, 806 (3d Cir. 1997). The district court should “frequently”
find “an expert’s methodology helpful even when the judge thinks that the expert’s technique has
flaws sufficient to render the conclusions inaccurate.” In re Paoli R.R. Yard PCB Litig., 35 F.3d
717, 744 (3d Cir. 1994). Therefore, “an expert’s testimony is admissible so long as the process

15

or technique the expert used in formulating the opinion is reliable.” Id. at 742 (citing Daubert v.
Merrell Dow Pharmaceuticals, Inc, 509 U.S. 579, 589 (1993)).

While CentiMark challenges Hartman’s qualifications it does not specifically set forth
why Hartman is unqualified to testify to the amount it would cost to replace the roof and why the
court’s determination to allow Hartman to testify was a clear error of law. 4 The Court finds that
Kirby Hartman was a sufficiently qualified expert to testify as to the cost to replace Buddy’s
roofs. He testified that he has over twenty five years of experience in the roofing business, has
experience with metal roofs and R-panels that were the subject of the litigation, visited Buddy’s
roof and provided an estimate of the cost to replace the roof to a reasonable degree of
professional certainty. See Tr. [ECF No. 305] at 54-58. Additionally, CentiMark’s argument as
to Hartman’s expert report only challenges the report due to its brevity. However, Hartman was
asked to give his opinion as to what it would cost to replace the roof and he provided an estimate
reflecting the same.

Seemingly, CentiMark’s arguments as to the exclusion of Hartman’s

testimony and report relate more to the “weight to be given” to his testimony and not specifically
the admissibility of such evidence. Holbrook, 80 F.3d at 782.

Expert witnesses may be

competent to testify although they may not be the “best” qualified, and who is “best qualified is
[a] matter of weight upon which reasonable jurors may disagree.” Id. Hartman was a qualified
expert under Daubert and his report reflecting the cost to replace the roof was proper, therefore
CentiMark’s Daubert motion to exclude Hartman’s testimony is denied.
Additionally, CentiMark argues that Buddy’s untimely disclosed Hartman as an expert
witness. CentiMark’s argument has already been addressed by this Court in the disposition of a
motion to strike Hartman as an expert witness. See Memo. Op. [ECF No. 151]. The Court found

4

The Court also notes that at the Daubert hearing, no expert, including Kirby Hartman, was presented to the
Court for purposes of challenging their qualifications.
16

that while Buddy’s violated Rule 26(e) by not disclosing Hartman as an expert witness until after
the close of discovery, “such conduct [did] not compel this Court to strike the expert’s testimony.
Defendant suffer[ed] minimal prejudice or surprise from the inclusion of the witness[]; such
prejudice [was] cured by re-opening discovery[,] . . . allowing the testimony [did] not disrupt the
orderly and efficient management of the trial” and there was no evidence of bad faith on behalf
of Buddy’s. Id. at 6. CentiMark simply regurgitates the same arguments it set forth in its motion
to strike and offers no reason why the Court’s previous finding was an error of law or otherwise
appropriate for this Court to reconsider. CentiMark simply asks this Court to relitigate the issues
this Court has already addressed. Accordingly, CentiMark’s motion to strike the testimony of
Hartman due to Buddy’s failure to timely designate him as an expert witness is denied.
2. Studer’s Testimony Regarding Maintenance Obligation
CentiMark argues that Buddy’s offered no documentary evidence to show that Buddy’s
had any interest in the buildings’ roofs, that the Studer Rentals’ roof destruction claim was
assigned to Buddy’s, or that Buddy’s had some contractual duty to Studer Rentals to maintain
and keep the roof in good condition. Def.’s Br. in Supp. of Mot. for New Trial [ECF No. 279] at
7. CentiMark further argues that because no documents evidencing Buddy’s interest in the
building were produced, testimony about the contents of such documents is inadmissible hearsay
and the Court erroneously allowed hearsay testimony to remedy a critical deficiency in Buddy’s
case. Id. at 7-8. As such, CentiMark argues that it should be granted a new trial without the
hearsay evidence.
Buddy’s responds that Studer competently testified that Buddy’s “rents the buildings
from Studer Rentals and, by agreement, Buddy’s has assumed the obligation to keep the
buildings in good repair. In the execution of that obligation, Buddy’s obtained the hail damage

17

insurance used to pay for CentiMark’s repair. . . . Buddy’s further has a possessory interest in
the buildings by virtue of the lease agreement it has with Studer Rentals.” Pl.’s Br. in Op. of
Def.’s Mot. for New Trial [ECF No. 296] at 7.
As a preliminary matter, Buddy’s produced the lease in question as an exhibit to its
memorandum of law in opposition to defendant’s motion for summary judgment. See Studer
Rentals Lease Agreement [ECF No. 127-9]. Moreover, because the court has already found that
this court does not lack subject matter jurisdiction and CentiMark’s argument that Studer Rentals
should have been joined as a necessary party is untimely, additionally, this motion for a new trial
premised on these same arguments is denied. Furthermore, whether Buddy’s has standing to
bring these claims is a legal question properly decided by the Court. See In re School Asbestos
Litig., 921 F.2d 1330, 1332 (3d Cir. 1990). There was no factual dispute as to who owned the
buildings that would necessitate a jury finding. Therefore, the alleged failure of Buddy’s to enter
the lease into evidence, and Studer’s testimony as to the assignment of the interest in repairing
the roof has no bearing on the outcome of the jury’s verdict. Therefore, the purported lack of
documentary evidence is not a valid basis for granting a new trial, setting aside the jury’s verdict
or otherwise disturbing the judgment.

Accordingly, CentiMark’s motion is denied in this

respect.
3. Video and Photographic Evidence of Buildings
CentiMark reiterates its argument in its motion in limine as to the video and photographic
evidence of the buildings shown by Buddy’s and argues that the probative value of the evidence
was substantially outweighed by a danger of unfair prejudice, and confused or misled the jury.
Def.’s Br. in Supp. of Mot. for New Trial [ECF No. 279] at 7-8. CentiMark argues that such
evidence was not relevant as it depicted the roofs six years after the application of the roof

18

coating material and was prejudicial because it improperly conjured sympathy for Buddy’s from
the jurors. See id. at 8. The Court will treat this as a motion for reconsideration of this Court’s
Order allowing said evidence.
The court has already held that any prejudice that may occur based on these photographs
would be remedied by a limiting instruction to this effect. The Court held that
the photographs and videos are not prejudicial to CentiMark
because the roof is still in its warranty to this date, and there is no
evidence that Buddy’s or a third party has explicitly tampered with
the roof. Any prejudice that the photographs and videos are dated
or do not show the roof at the time of completion and conjure
sympathy for Buddy’s can be remedied with a limiting jury
instruction to that effect.
Memo. Op. and Order [ECF No. 234] at 23. Notably, CentiMark does not argue that the Court
failed to issue the limiting instruction. In its final jury instructions, the jurors were instructed not
to be influenced based upon sympathy. See Tr. [ECF No. 300] at 15, 33 (“Do not let bias,
sympathy or prejudice influence your decision in any way. Our system of law does not permit
juror to be governed by sympathy, prejudice or public opinion”; “you may not award damages
based on sympathy, speculation or guesswork.”).
Because the trial court is given broad discretion to determine the admissibility of
evidence, this Court declines to re-decide what it has already determined, whether rightly or
wrongly. See generally Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999). As such,
CentiMark’s motion in this regard is denied for the same reasons set forth in the Court’s
memorandum opinion. See Memo. Op. and Order [ECF No. 234] at 21-23.
4. Erroneous Jury Instructions
CentiMark argues that the court issued erroneous jury instructions by failing to properly
instruct the jury of Buddy’s affirmative duty to investigate its claim and it should have instructed

19

the jury that if it found that CentiMark was responsible for the roof leaks, that it was to order
CentiMark to fix the leaks and not pay damages for total replacement.
Generally, where a party seeks a new trial based on legally defective jury instructions, the
court must consider “whether, taken as a whole, the instruction properly apprised the jury of the
issues and applicable law.” Donlin v. Phillips Lighting N. Am. Corp., 581 F.3d 73, 78 (3d Cir.
2009) (citation omitted). The district court has “substantial discretion with respect to specific
wording of jury instructions and need not give [a] proposed instruction if essential points are
covered by those that are given.” Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 127
(3d Cir. 2003) (citation omitted); Donlin, 581 F.3d at 79 (“The trial judge is permitted
considerable latitude to summarize and comment upon the evidence, provided that the jury is
neither confused or misled.”). A district court abuses their discretion in this manner “if the
instruction was capable of confusing and thereby misleading the jury.” Id. at 126 (citation
omitted).
i. Buddy’s Affirmative Duty to Investigate its Claim
CentiMark first argues that the Court erred by not instructing the jury of Buddy’s
affirmative duty to investigate its claim. Specifically, CentiMark argues it was error for the
Court to not instruct the jury that: “Fairness requires that an individual who believes he has been
wronged have a sufficient period of time to recover from his injury, if any, investigate the
circumstances surrounding a potential claim and decide whether legal action is warranted.”
Def.’s Br. in Supp. of Mot. for New Trial [ECF No. 279] at 9 (emphasis in original) (quoting
Johnson v. Stuenzi, 696 A.2d 237, 242 (Pa. Super. Ct. 1997)). CentiMark argues that “[h]ad the
jury been properly instructed on the duty to investigate as part of the ‘exercise of reasonable
diligence,’ the jury would have decided that Buddy’s failed to investigate, and accordingly,

20

failed to exercise reasonable diligence, and it would have found in favor of CentiMark on the
statute of limitations question.” Id. at 9.
As to the statute of limitations question, the Court instructed the jury as follows:
Buddy’s was required to bring any claims arising out of or
related to the contract within one year after it discovered its claims,
or within one year that its claims in the exercise of reasonable
diligence, should have been discovered.
The phrase, reasonable diligence, is not an absolute
standard. Instead, reasonable diligence is an objective test that is
sufficiently flexible to take into account the differences between
persons, their knowledge and, in particular, their experience and
their capacity to meet certain situations and circumstances
confronting them at all times.
The phrase, reasonably should have been discovered,
imposes a duty upon Buddy’s to exercise only reasonable diligence
to discover that it has been injured and by what cause.
Under the reasonable diligence test, you must evaluate
Buddy’s actions to determine whether it exhibited those qualities
of attention, knowledge, intelligence and judgment which society
requires of its members for the protection of their own.
Only if you find a defect in workmanship or materials
provided by CentiMark caused continuing leaking of the roofs,
then you must determine when Buddy’s actually discovered or
reasonably should have discovered that the continued leaking was
caused by the defect in workmanship or materials. We will,
therefore, ask you to determine when Buddy’s actually discovered
or reasonably should have discover[ed] that the leaks were caused,
if that is true, by CentiMark’s defective workmanship or materials.
Buddy’s contract with CentiMark requires CentiMark to
apply a waterproofing material to Buddy’s roof. Buddy’s alleges
that CentiMark breached the contract by providing defective
material because the acrylic coating was not, in fact, a
waterproofing material.
Buddy’s argues that it did not know that the coating
material was not waterproofing material until its consultant told
Buddy’s that it was not a waterproofing material on June 1, 2009.
If you find that CentiMark breached the contract because it failed
to coat Buddy’s roofs with a waterproofing material, you must
determine when Buddy’s could have discovered the breach.
CentiMark contends that Buddy’s knew or should have known of
the alleged defects much earlier.
Tr. [ECF No. 300] at 33-34.
21

Because a court has substantial discretion with respect to a jury instruction’s specific
wording, the Court finds that the jury instruction with regard to Buddy’s reasonable diligence in
ascertaining its injury and its cause was clear and not capable of confusing or misleading the
jury. Further, taking this jury instruction as a whole, it “properly apprised the jury of the issues
and the applicable law.” Donlin, 581 F.3d at 78 (citing Dressler v. Busch Entm’t Corp., 143 F.3d
778, 780 (3d Cir. 1998)). The Court’s omission to instruct the jury of Buddy’s to undertake an
“investigation” of the circumstances is encompassed in this Court’s instruction on reasonable
diligence, i.e., that Buddy’s had a duty to exercise reasonable diligence “to discover that it has
been injured and by what cause.” Tr. [ECF No. 300] at 33. Accordingly, CentiMark’s motion for
a new trial for this reason is denied.
ii. Causes of Action Prohibited by Contract
CentiMark next argues that Buddy’s claims for breach of contract and breach of the duty
of workmanlike performance were prohibited by the terms of the contract because the contract
stated that “all causes of action except for enforcement of the Warranty are expressly disclaimed,
as are all remedies other than repair of leaks by CentiMark.” Def.’s Br. in Supp. of Mot. for New
Trial [ECF No. 279] at 9-10. Therefore, the Court should have instructed the jury that if it found
that CentiMark was responsible for the roof leaks, that it was to order CentiMark to fix the leaks,
and not pay damages for the total replacement of the roof. Id.
CentiMark’s argument that the Court erroneously instructed the jury “by instructing it at
all[,]” id. at 9, is essentially an argument for judgment as a matter of law. CentiMark’s argument
has already been determined by this Court. Additionally, CentiMark does not point to any
specific jury instruction which it claims was erroneous.

22

This Court finds that the jury

instructions were proper and apprised the jury of the issues and applicable law. Specifically, the
Court instructed the jury:
As you have heard throughout the course of the trial, the
contentions of the parties are as follows.
Buddy’s claims that CentiMark has breached the contract
between it and CentiMark by failing to apply an agreed upon
waterproofing system to its roof and defectively repairing the leaks
that occurred because of faulty material[s] and/or workmanship
and after applying the coating.
CentiMark argues that it properly installed the coating and
the materials were proper for the job completed, but that the
coating failed because Buddy’s buildings were poorly designed
and structurally deficient, such that the roof panels expanded and
contracted, allowing openings in the panels and condensation and
rain to enter the roof and cause the leaks.
I will first instruct you on Buddy’s breach of contract
claim.
A contract is a legally enforceable agreement between two
parties who have promised to do or refrain from doing some
unlawful act. In this case, there was no dispute that Buddy’s and
CentiMark entered into a contract for CentiMark to perform
services on Buddy’s roofs.
A breach of contract occurs when a party to the contract
fails to perform any contractual duty or violates an obligation,
engagement, or duty, and that breach is material. A breach does
not have to be defined in a contract and not every nonperformance
is to be considered a breach of the contract.
If you find that the nonperformance of that contractual
obligation was immaterial, and that the contract was substantially
performed, you must find a breach of contract has not occurred.
I have mentioned that to find a breach of contract occurred,
you must find that the breach was material. In deciding whether a
breach is material, you must consider the following factors. The
extent to which Buddy’s will be deprived of the benefit it is
reasonably expected; the extent to which Buddy’s can be
adequately compensated for that party of the benefit of which it
will be deprived; the extent to which CentiMark’s failure to
perform or to offer to perform will cause Buddy’s to sustain
injuries; and the extent to which the behavior of CentiMark failing
to perform or offer to perform compares with the standards of good
faith and fair dealing.
Here, Buddy’s claims CentiMark breached the contract in
two different ways. First, CentiMark promised Buddy’s it would
apply a waterproofing system to Buddy’s roofs and, second, that
23

CentiMark promised that it would repair any leaks resulting from
the defects in materials and/or workmanship.
Buddy’s must prove by a preponderance of the evidence,
meaning that it is more likely than not, that CentiMark breached
these duties imposed by the contract.
The contract between Buddy’s and CentiMark stated that
CentiMark would apply a waterproofing roofing system to
Buddy’s roof. The Court ha[s] already determined that the term,
waterproofing material, means a water-tight barrier.
You must find a breach of contract if you find that
CentiMark did not apply an appropriate waterproofing system, or
that CentiMark did not repair the leaks that were caused by defects
[in] its materials and/or workmanship.
A defect in workmanship is defined as the faulty or
defective execution of making or doing something. A defect in
materials is defined as a fault, flaw, or irregularity that causes
weakness, failure, or inadequacy in form or function.
CentiMark argues that it did not breach the contract and
claims that the continued leaking of Buddy’s roof is the result of
the improper manner in which the building was designed and
constructed for which it is not responsible and the leaking is
caused by the movement of the panels or possible condensation in
the building.
It is for you, the jury, to decide first, whether CentiMark
applied a waterproofing material, and second, whether any leaking
in the roof after CentiMark performed its repair work was caused
as a result of a defect in either the workmanship[,] materials, or
both, provided by CentiMark.
The fact that the roof continued to leak after CentiMark
attempted to repair it does not necessarily mean that the continuing
leaking resulted from a defect in workmanship or material.
The fact that CentiMark attempted to repair Buddy’s roof
coating cannot be used as evidence to show that CentiMark
breached the contract. The fact that a company takes remedial
measures upon the occurrence of some event is not evidence that
the business caused that event. Evidence of subsequent remedial
measures is not admissible to prove liability or culpability of prior
conduct.
If you find it is more likely than not that CentiMark did not
apply a waterproofing material to the roof, then you must find that
CentiMark breached the contract.
In a similar manner, if you find it is more likely than not
that the leaking of the roof that occurred as CentiMark performed
its repair work was caused as a result of a defect in either the
workmanship or material, or both, then you must find that
CentiMark breached its contract with Buddy’s. However, if you
24

find that the improper design or construction of the roof caused the
defects and the leaks that then occurred, you must find that
CentiMark did not breach its contract.
Only if you have determined that CentiMark breached the
contract with Buddy’s by either failing to apply a waterproofing
system to the roof thereby causing Buddy’s to continue to
experience leaking or by failing to repair the leaks that were
caused as a result of a defect in either its workmanship or materials
may you determine what amount of damages are owed to Buddy’s
as a result of the breach.
Tr. [ECF No. 300] at 27 – 31.
The Court has held that the contract provisions cited by CentiMark “does not bar
Buddy’s from bringing in evidence of damage actually caused by CentiMark[,]” Mem. Op. and
Order [ECF No. 234] at 10, and additionally holds, infra, that it was proper for the court to enter
judgment on the jury verdict. By extension, this Court did not err by allowing the jury to decide
this issue. CentiMark simply asks this court to relitigate issues already decided. Accordingly,
CentiMark’s motion is denied.
5. Damages Not Proven by the Evidence
Lastly, CentiMark argues that Buddy’s has not proven its damages to a reasonable
certainty which demands a new trial.
In order to prove damages for a breach of contract under Pennsylvania law, the plaintiff
“must give a factfinder evidence from which damages may be calculated to a ‘reasonable
certainty.’” Ware v. Rodale Press, Inc., 322 F.3d 218, 226 (3d Cir. 2003) (quoting ATACS Corp.
v. Trans World Communications, Inc., 155 F.3d 659, 668 (3d Cir. 1998)). While Pennsylvania
law allows “some uncertainty” in calculating damages for a breach of contract, “the plaintiff
must introduce sufficient facts upon which the jury can determine the amount of damages
without conjecture.” Ware, 322 F.3d at 226 (quoting Delahanty v. First Pennsylvania Bank,
N.A., 464 A.2d 1243, 1257 (Pa. Super. Ct. 1983)).
25

Here, there was sufficient evidence for the jury to base its award of damages. Plaintiff
presented a roofing expert, Kirby Hartman, who testified to a reasonable degree of certainty that
the cost to replace the roof would be approximately $1,800,000. See Tr. [ECF No. 305] at 54-58.
Hartman visited the buildings in question, measured the roof and provided an estimate for the
“replacement of the metal roof that had the roof coating on it.” Id. at 55. Hartman was also
provided an estimate as part of his expert report as to the cost of replacing the roofing panels. See
Hartman Roofing Inc. 9/17/2012 Estimate [ECF No. 134] at 3.
Therefore, there was enough evidence for the jury to determine the amount of damages
that Buddy’s was entitled amounted to $1,800,000 without guesswork or conjecture.
Accordingly, CentiMark’s motion for a new trial on this basis is denied.
c. CentiMark’s Motion to Mold the Verdict
Lastly, CentiMark moves to mold the jury’s verdict to reduce it to $513,000 (the original
cost of the project) less the cost of the warranty repairs performed by CentiMark ($47,672) for an
amount of damages totaling $465,928. CentiMark argues that (1) the law of the case mandates
that the Court mold the verdict; (2) the verdict is prohibited by the parties’ contract which
disclaimed consequential damages, limited liability to repair of the roof and capped damages at
the original cost of the roof coating system; (3) it was determined in pre-trial proceedings that
any verdict in excess of the damage cap was prohibited by the contract; and (4) the jury’s finding
that CentiMark failed to perform in a workmanlike manner does not supersede the terms of the
contract or their enforceability. See Def.’s Mot. for Reconsideration [ECF No. 295] at 1-2, 8.
First, CentiMark’s argument that it was determined pre-trial that any verdict was subject
to a damage cap is incorrect. Gleaning from the transcript, the Court did not make a ruling as to
the amount of damages, nor did the parties come to a definite stipulation regarding this issue at

26

the pretrial conference. The entirety of the discussion on this point between the Court and
counsel was as follows:
The Court:
At this juncture, what is the question that is
going to the jury, or questions?
Mr. Stein:
The questions that are going to the jury is
whether or not the Defendant breached the contract; and whether
or not the Defendant breach the warranty . . . of workmanship and
materials; and whether the Plaintiff filed suit within a reasonable
period of time after it learned or should have learned of the defects
in material and workmanship.
The Court:
Okay. What about as far as assessing
damages if the jury is going to do that?
Mr. Stein:
We have a witness who was going to testify
to the cost of replacing the roof, which our experts are going to
testify is necessary. And so that only question is, we had discussed
this earlier - The Court:
Right. The warranty says the limitation is
the amount of the contract, which is a little over a half million
dollars.
Mr. Stein:

Yes.

The Court:

Okay.

Mr. Stein:
The question was whether or not the jury
should be instructed at the beginning that they are not to enter an
award for more than that or whether or not we should let them
make the decision and then the Court mold the verdict. I don’t
think that’s actually been decided yet.
The Court:
I think the last time we kind of decided we
would let the jury reach its own verdict and then we would enter a
verdict capping it at the amount under the warranty. So that - - I
think you raised it, Mr. Stein - - in the event of an appeal, if the
jury - - if the Court concludes that the damages should not have
been limited to those contained in the warranty, that the case not
have to be retried.
Mr. Stein:
I don’t know whether we actually decided
because Mr. Liekar I though indicated he hadn’t discussed that
27

with his client. Then subsequently other questions came up about,
for example, if the case is appealed and if it’s reversed on the fraud
. . . claim, then we have a potential jury issue on damages with
regard to potential punitive damages and things of that nature. So I
wasn’t sure whether or not we would have to retry it anyway if we
won. So that’s where we are - - that’s where I am in any event.
The Court:

Okay. Mr. Liekar.

Mr. Liekar: That’s a good recitation of what we talked
about. We are kind of agreeing on that last time we were here and
reserved the right to talk to my client about it. Then, Mr. Stein
brought up the issue, what about all the other issues, and then I
wasn’t really sure what the stipulation was going to be. So maybe
if we could agree what the stipulation is going to be, if Mr. Stein
still wants to do that, because of these other complications with the
punitive damages. But I think we need to agree on the stipulation,
which I guess would be something to the effect that the warranty
limits the amount of damages recoverable to I think it’s $550,000,
but we will have the exact number, maybe we can stipulate that the
jury can render its verdict, and if it’s over $550,000, the Court will
mold the verdict to $550,000. In other words - - there was a
verdict and it was over 550. So I guess we need to maybe agree on
that language in advance with the Court’s approval, and then I
don’t know how we are going to answer those questions. It seems
like they are really imponderable at this point. So maybe, I don’t
know, maybe we just agree that the jury is instructed that the
amount of damages is limited to 550 and just avoid that future
issue altogether. Because that’s really speculating that there will
be a verdict and it will be appealed and things of that nature.
The Court: But where is the harm to your client?
Supposing the jury comes in with 750, we enter judgment for 550
based on the limitations of the contract - Mr. Liekar:
with that.

If that’s the agreement, I have no problem

The Court:
that out.

Why don’t you and Mr. Stein try to work

Tr. [ECF No. 235] at 4-7. The parties failed to come to a stipulation on the matter before the
verdict was rendered, and the Court subsequently entered judgment on the entire verdict amount,
uncapped by the contractual amount.
28

First and foremost, any argument that there was an “understanding” between the parties
and the Court that the Court would mold a jury verdict in excess of the contract amount, and that
it is the law of the case is palpably incorrect as shown from the transcript. It is clear that no
agreement or ruling had been made, but rather the parties were to discuss whether a stipulation
would be necessary but failed to do so. Accordingly, CentiMark’s argument that the Court is
bound to mold the verdict as based on these pre-trial discussions is denied.
CentiMark next argues that the Court has already held that the limitation of liability
clause is enforceable against Buddy’s and therefore it is also bound by the law of the case to
mold the verdict to the contract amount. Def.’s Br. in Supp. of Mot. for Reconsideration [ECF
No. 295] at 4.
Specifically, the Court held that “the limitation of liability clause is enforceable against
Buddy’s, and should it recover on its breach of contract claim, CentiMark is not liable for any
special, incidental, or consequential damages.” Mem. Op. [ECF No. 157] at 19. However, the
Court made this finding with regard to the enforceability of the limitation of liability clause, not
its application. Although this court has found that damages caused to the roof in the repair
process were not consequential damages, a broader discussion on the matter is warranted here.
Because a court may “refuse to infer decision on issues that were barely presented, or from
summary decisions[,]” the Court will discuss whether the damages to the roof made during
repairs that ultimately necessitated replacement of the roof are consequential damages
disclaimed by the contract. Ogbudimkpa v. Ashcroft, 342 F.3d 207, 210 n. 7 (3d Cir. 2003)
(citing 18B Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure § 4478 (2d ed. 2002)).
The Court has previously held:

29

The limitation of liability clause stated “This warranty does not
cover, and in no case shall CentiMark be liable for any special,
incidental or consequential damages based on breach of warranty,
breach of contract, negligence, strict liability, tort or other legal
theory.” 8/11/2006 Sales Agreement [ECF No. 4-2] at 30. The
court upheld this provision as valid; however it does not bar
Buddy’s from bringing evidence of damages actually caused by
CentiMark. See Mem. Op. and Order [ECF No. 157] at 19. The
replacement of the roof is not a consequential damage if the repairs
made by CentiMark caused such substantial damage to the roof
that . . . only replacement of the entire roof would remedy the
defects. Therefore, Buddy’s is entitled to recoup actual damages
sustained, provided they can be proven and are accepted by the
jury.
Mem. Op. and Order [ECF No. 234] at 10.
Generally, “[c]ontract damages are ordinarily based on the injured party’s expectation
interest and are intended to give him the benefit of his bargain by awarding him a sum of money
that will, to the extent possible, put him in as good a position as he would have been in had the
contract been performed.” Restatement (Second) of Contracts § 347 cmt. a (1981).
Consequential damages are defined by Black’s Law Dictionary as “[l]osses that do not flow
directly and immediately from an injurious act but that result indirectly from that act. – Also
termed indirect damages.” Black’s Law Dictionary (9th ed. 2009); see also Cresci Const. Servs.,
Inc. v. Martin, 64 A.3d 254, 259 (Pa. Super. Ct. 2013) (“’Consequential damages’ are generally
understood to be other damages which naturally and proximately flow from a breach of
contract.”).
While CentiMark argues that the damage to the roof while performing its repairs under
the warranty are consequential damages disclaimed by the warranty, the court finds that the
damage to the roof was direct damages properly awarded to Buddy’s.
“The Restatement (Second) of Contracts § 347 distinguishes ‘the loss in value to [the
injured party] of the other party’s performance caused by its failure or deficiency’ – direct
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damages – from ‘any other loss, including incidental or consequential loss, caused by the
breach,’ – indirect damages.” Clark Distribution Sys. Inc. v. ALG Direct, Inc., 2012 WL
3686771, at *5 (M.D.Pa. Aug. 27, 2012) (citations omitted). “There is no general rule that direct
damages are limited to the difference between the value of the product or service contracted for
and the value of the product or service actually provided.” Wartsila NSD N.A., Inc. v. Hill
Intern., Inc., 436 F.Supp.2d 690, 697 (D.N.J. 2006) (order vacated on other grounds by Wartsila
NSD N.A., Inc. v. Hill Intern.. Inc., 530 F.3d 269 (3d Cir. 2008) (citing Applied Data Processing,
Inc. v. Burroughs Corp., 394 F.Supp. 504, 509 (D.Conn. 1975)). See also Foundry & Mach. Co.,
27 F.2d 234 (6th Cir. 1928); Clark v. Ferro Corp., 237 F.Supp. 230, 239 (E.D.Tenn. 1964).
In a substantially similar case, the owner of a building brought suit against a roofer after
it had applied a roof-coating material for, inter alia, breach of contract because the roof leaked
after the installation. 21st Century Props. Co. v. Carpenter Insulation & Coatings, Co., 694
F.Supp. 148, 150 (D.Md. 1988). The plaintiff sought replacement of the roof, rather than the
cost to repair it, and the defendant-roofer argued that the consequential damages exculpatory
clause barred the plaintiff from recovering monetary damages, because such damages were
consequential. Id. at 152. The court found under Maryland law that “the cost of replacing the
allegedly defective roofs which plaintiffs seek to recover constitutes the direct damage, not
incidental damage or consequential damages, caused by the wrongs alleged.” Id. at 152, n. 4
(citing Correlli Roofing Co. v. Nat’l Instrument Co., 214 A.2d 919, 921 (Md. 1965)).
CentiMark was under a duty to repair leaks caused by defective workmanship or
materials. The evidence showed that this did not occur, as CentiMark in undertaking the repairs
on Buddy’s roof, drove thousands of ungasketed fasteners into the roof, which caused leaking in
the buildings.

It was undisputed, and in fact CentiMark’s own expert testified, that the

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ungasketed fasteners were inappropriate. See Tr. [ECF No. 307] at 30-31.

By doing so,

CentiMark breached their contract with Buddy’s. The damage caused by CentiMark’s use of the
ungasketed fasteners were not consequential damages, but rather direct damages constituting
Buddy’s loss in value to its roof for CentiMark’s failure to repair the roof from leaks caused by
CentiMark’s defective workmanship and/or materials. The court holds that the damages sought
by Buddy’s for the destruction of their roof are direct damages permitted under the contract, not
incidental or consequential damages disclaimed by the contract. Accordingly, CentiMark’s
motion to mold the verdict is denied.
V.

CONCLUSION
For the foregoing reasons, defendant’s, CentiMark Corporation’s motion for judgment as

a matter of law [ECF No. 270] is DENIED; CentiMark’s motion for judgment as a matter of law
[ECF No. 272] is DENIED; CentiMark’s motion for a new trial [ECF No. 278] is DENIED; and
CentiMark’s motion for reconsideration of the [ECF No. 264] Order denying oral motion to
mold the verdict [ECF No. 295] is DENIED.
An appropriate Order follows.

ORDER OF COURT

AND NOW, this 31st day of March, 2014, after consideration of CentiMark
Corporation’s motion for judgment as a matter of law [ECF No. 270], CentiMark’s Motion for
judgment as a matter of law [ECF No. 272], CentiMark’s motion for a new trial [ECF No. 278],
and CentiMark’s motions for reconsideration of the [ECF No. 264] Order denying the oral
motion to mold the verdict [ECF No. 295], along with briefs in support, briefs in opposition and
replies thereto, it is HEREBY ORDERED as follows:

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CentiMark’s motion for judgment as a matter of law [ECF No. 270] is DENIED;
CentiMark’s motion for judgment as a matter of law [ECF No. 272] is DENIED;
CentiMark’s motion for a new trial [ECF No. 278] is DENIED;
CentiMark’s motion for reconsideration of the [ECF No. 264] Order denying the oral
motion to mold the verdict [ECF No. 295] is DENIED.

By the Court,
s/ROBERT C. MITCHELL
ROBERT C. MITCHELL
United States Magistrate Judge

cc:

Stanley M. Stein
Chadd C. Colin
John P. Liekar, Jr.

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