Construction Contract Change Request Documents Business Documents Authenticity
Sycamore Restaurant Group, LLC v. Stampfi Hartke Assoc., LLC, PICS Case No. 17-1198 (Pa. Super. July 12, 2017) Lazarus, J. (15 pages).
Trial court properly found architectural firm liable only for rent and construction loan interest in action by restaurant asserting breach of an architectural and engineering services contract because trial court properly excluded change request documents since those documents were not modifications to the contract and were not proper evidence of rock removal and dewatering costs as they were created by a third party and there was no evidence to corroborate the authenticity of the documents. Affirmed.
Restaurant sued for the breach of an architectural and engineering services contract for the construction of a new restaurant. A non-jury trial found in favor of restaurant and both parties appealed. Restaurant argued that the damages award for 30 days' rent and construction loan interest was inadequate and architectural firm argued that there was no basis for the damages.
Restaurant argued the trial court erred when it did not admit change request documents prepared by the contractor that restaurant argued showed $197,000 in additional damages and contended that the documents were admissible as modifications to the construction contract. The court looked to the plan language of the contract and found that the change request documents were not modifications to the contract because the contract language showed that the parties intended that the architect, not the contractor, was to prepare change orders. Furthermore, the owner, contractor and architect did not sign the change request documents.
Restaurant also asserted the trial court should have considered the evidence of its managing partner regarding the additional costs of rock removal and dewatering. The trial court properly found that the change request documents purporting to show rock removal and dewatering costs were inadmissible pursuant to Pa.R.E. 804 and/or 803. The change request documents did not fall under any of the Rule 804(b) exceptions. Architectural firm was not the declarant of the statements (documents) proffered by restaurant. That fact contradicted restaurant's claim that the documents constituted a statement against firm's interests. The documents were, at best, statements by the contractor. Restaurant's contention that once the documents were delivered to restaurant, they became restaurant's business records failed because restaurant was the recipient, not the preparer of the documents. Restaurant's managing partner provide no information as to how the documents were created, calculated, or maintained, who transmitted them to restaurant or any evidence corroborating the authenticity of the documents. The record was insufficient to establish the trustworthiness of the documents, which despite restaurant's attempt to recast as its own, were created by a third party. The trial court correctly excluded the documents from evidence.