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J-A21038-12 2012 PA Super 222

J.J. DELUCA COMPANY, INC., Appellant v. TOLL NAVAL ASSOCIATES, TOLL PA GP CORP., INC., AND TOLL BROS., INC., Appellees

IN THE SUPERIOR COURT OF PENNSYLVANIA

No. 306 EDA 2012

Appeal from the Judgment Entered November 18, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No.: March Term, 2007, No. 00885 J.J. DELUCA COMPANY, INC., Appellee v. TOLL NAVAL ASSOCIATES, TOLL PA GP CORP., INC., AND TOLL BROS., INC., Appellants No. 307 EDA 2012 IN THE SUPERIOR COURT OF PENNSYLVANIA

Appeal from the Judgment Entered November 18, 2011 In the Court of Common Pleas of Philadelphia County Civil Division at No.: March Term, 2007, 00885 BEFORE: SHOGAN, J., LAZARUS, J., and PLATT, J.* OPINION BY PLATT, J.
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Filed: October 12, 2012

Retired Senior Judge assigned to the Superior Court.

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Appellant/Cross-Appellee,

J.J.

DeLuca

Company,

Inc.

(DeLuca),

appeals from the order entered in favor of Appellees/Cross-Appellants, Toll Naval Associates, Toll PA GP Corp, Inc., and Toll Bros. Inc., (collectively, Toll), in these consolidated cross-appeals. DeLuca raises sixteen claims of error against the trial court. Toll raises nine counter-questions. We affirm. This case is on appeal for the second time. The underlying suit arose out of the contractual relationship which began when Toll engaged DeLuca to be general contractor for the seventy-nine million dollar Naval Square Project for the construction of townhomes and condominiums on former Navy property in South Philadelphia, of which Toll was owner and developer. (See generally, Trial Court Rule 1925(a) Opinion, 1/10/12, at 1-3; see also Trial Ct. Op., 8/03/10, at 1-12, passim). In addition to other

compensation, DeLuca received 3.5% of total billings to Toll as a management or administrative fee. (See Trial Ct. Op., 8/03/10, at 6). Disagreements developed over Toll's delays in obtaining required permits, untimely delivery of essential shop drawings, and work which Tolldirected to be performed out of sequence to suggest greater than actual progress for marketing purposes. Toll had complaints about DeLuca's

quality of workmanship and failure to meet the contract schedule. The trial court attributes most of the delays to Toll. (See id., at 7). In any event, the parties decided to discontinue the arrangement, with Toll to become its own general contractor. After extensive negotiation they executed a Termination for Convenience Agreement (TCA), effective as of -2-

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May 26, 2006, which, inter alia, allocated responsibilities for the turnover transition, and, notably for purposes of this appeal, limited the types of claims which could be brought. On March 9, 2007, after mediation failed, DeLuca sued Toll for amounts held back by Toll under a 10% retainage arrangement. The

complaint alleged breach of contract, unjust enrichment, quantum meruit, and violation of the Contractor and Subcontractor Payment Act (CASPA), 73 P.S.

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