R.J. Cummins, d/b/a Bob Cummins Construction Co. v. Bradford Sanitary Auth.
CourtCommonwealth Court of Pennsylvania
Date FiledOctober 23, 2026
Docket1263, 1320 & 1515 C.D. 2024
JudgeCovey
StatusUnpublished
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Full Opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Robert J. Cummins, d/b/a Bob : CASES CONSOLIDATED
Cummins Construction Company, :
Appellant :
:
v. :
:
Bradford Sanitary Authority : No. 1263 C.D. 2024
:
Robert J. Cummins, d/b/a Bob :
Cummins Construction Company :
:
v. :
:
Bradford Sanitary Authority, : Nos. 1320, 1515 C.D. 2024
Appellant : Argued: November 6, 2025
BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE COVEY FILED: October 23, 2026
Robert J. Cummins, d/b/a Bob Cummins Construction Company
(Cummins) appeals from the McKean County Common Pleas Court’s (trial court)
order entered on August 23, 2024 (August 23, 2024 Order)1 denying Cummins’
motion for post-trial relief (Cummins’ Motion) and denying in part and granting in
part the Bradford Sanitary Authority’s (Authority) motion for post-trial relief
(Authority’s Motion) (collectively, Post-Trial Motions), and all interlocutory orders
made final thereby. The Authority cross-appeals from the portion of the trial court’s
1
The trial court issued its order on August 22, 2024, but entered it on the docket on August
23, 2024.
August 23, 2024 Order denying the Authority’s Motion in part, and from the trial
court’s October 9, 2024 order denying the Authority’s Motion for Attorney’s Fees
and Costs (Authority’s Second Fees Motion).2
Cummins presents five issues for this Court’s review: whether the trial
court erred by: (1) denying Cummins’ Motion seeking a new trial or remittitur where
the Authority prevented Cummins from addressing influent overtopping, excessive
effluent decant and sequencing batch reactor (SBR) air pipe painting issues; (2)
denying Cummins’ Motion seeking a new trial or remittitur where the Authority
failed to mitigate the damages it allegedly sustained as a result of the influent
overtopping and excessive effluent decant issues; (3) interpreting the parties’
contract (Contract) and/or this Court’s decision in Cummins v. Bradford Sanitary
Authority, 237 A.3d 584 (Pa. Cmwlth. 2020) (Cummins I), as placing sole
responsibility on Cummins for identifying, making, and paying for any change
necessary to incorporate the Enaqua ultraviolet (UV) system; (4) granting judgment
notwithstanding the verdict (JNOV) in the Authority’s favor on Cummins’ extra
2
Technically, an “[a]ppeal lies from the judgment entered and not the
denial of post-trial motions,” [Crosby v. Dep’t of Transp., 548 A.2d
281, 283 (Pa. Super. 1988)], and a “verdict [does] not become final
for purposes of appeal until properly reduced to and entered as a
formal judgment under [Pennsylvania Rule of Civil Procedure] []
227.4.” Crystal Lake Camps v. Alford, 923 A.2d 482, 488 (Pa.
Super. 2007).
Your Towne Builders, Inc. v. Manheim Twp., 303 A.3d 1126, 1129 n.1 (Pa. Cmwlth. 2023)
(quoting Mitchell v. Milburn, 199 A.3d 501, 504 n.3 (Pa. Cmwlth. 2018)). Because the trial court
entered Judgment on the docket on September 19, 2024, on the jury verdicts against the Authority
in the amount of $188,855.08, see Reproduced Record (R.R.) at 5347a-5348a, and against
Cummins in the amount of $791,063.10, see R.R. at 5349a-5350a, this Court treats Cummins’ and
the Authority’s cross-appeals as appeals from the trial court’s Judgment entered on the docket on
September 19, 2024.
2
work claims; and (5) granting JNOV in the Authority’s favor on the Authority’s
counterclaims.
The Authority presents three issues for this Court’s review: whether the
trial court erred or abused its discretion by: (1) failing to find that Cummins’
execution of Change Order 06R1 barred Cummins’ extra work claims relating to
control/survey, storm sewer rerouting overtime, communication, and topsoil; (2)
failing to find that the Contract both barred Cummins’ extra work claim relating to
topsoil and entitled the Authority to JNOV on its topsoil counterclaim as a matter of
law; and (3) concluding that the Authority’s Second Fees Motion was not timely
filed. After extensive review, this Court affirms the trial court’s August 23, 2024
Order in part and reverses it in part, vacates the trial court’s October 9, 2024 order,
and remands for the trial court to rule on the Authority’s Second Fees Motion.
Background
This matter is before this Court on appeal for the third time. The
extensive procedural history is detailed in Cummins I and Cummins v. Bradford
Sanitary Authority (Pa. Cmwlth. No. 1107 C.D. 2021, filed Nov. 16, 2022)
(Cummins II). Relevant here, the Authority owns and operates a wastewater
treatment plant (Plant) in Foster Township, McKean County, that serves the City of
Bradford and other nearby communities. When the Authority sought to conduct
Wastewater Treatment Plant Upgrades (Project), it retained Gannett Fleming, Inc.
(GF) to provide engineering and construction management services and to act as the
Authority’s agent. The Project required, inter alia, the construction of concrete
tanks containing SBRs to treat sewage and other wastewater at the Plant.3
3
Basically, the SBR system consists of four phases: (1) filling the tanks; (2) aerating the
tanks’ contents (i.e., air blown into the tanks destroys the undesirable contents) through air
pipelines; (3) settling the undesirable contents as sludge; and (4) driving the cleaned water out of
the tanks to a UV system for disinfection before being released into a nearby creek.
3
In 2013, the Authority issued an Invitation for Bids (IFB) from
contractors for the Project that included Contract 2013-2 (hereafter, Contract)4 and
documents attached thereto and incorporated therein, including the Project Manual
(collectively, Contract Documents).5 See Ex. D-2 (Project Manual) at 1-1849. The
Project Manual contained, inter alia, Division 0, Section 00200 (Instructions to
Bidders), see Ex. D-2 at 15-31, Section 00700 (General Conditions), see Ex. D-2 at
119-207, and specifications for each Project part. Pertinent here, Project Manual
Division 11, Section 11393 governs the specifications for the SBR and its ancillary
structures, equipment, and controls (SBR Specifications). See Ex. D-2 at 1028-1051.
The SBR Specifications required, inter alia, that the system process 13.88 million
gallons per day (MGD) (9,638 gallons per minute (GPM)) (plus or minus 10%) of
influent (i.e., untreated wastewater). See Ex. D-2 at 1029. Cummins proposed to
install an Ashbrook Simon Hartley (Ashbrook) SBR, a true sequencing (rather than
continuous-flow) SBR system, in which only one of the four SBR tanks fills at a
time.6 Because the Authority sought an open channel configuration - rather than
standard hard pipes and valves - to handle influent flow into each tank,
Cummins/Ashbrook proposed to install automatic gates to control the influent flow.
The Authority awarded Cummins the Contract due to its $16,192,517.00 bid.
4
The IFB specified the Project would be performed under three contracts: Contract 2013-
2 (General Construction), Contract 2013-3 (Plumbing/Heating, Ventilation, and Air Conditioning
Construction), and Contract 2013-4 (Electrical Construction). See Ex. D-2 (Project Manual) at 11.
Cummins’ work on the Project was governed by Contract 2013-2.
5
After initially issuing an IFB for the Project resulting in bids which were several millions
of dollars over budget, the Authority rebid the Project in 2013.
6
In Section 1.05 of the SBR Specifications, the Authority designated as Acceptable SBR
Manufacturers: A. ABJ Sanitaire, B. Ashbrook, and C. Aqua Aerobics. Although the SBR
Specifications listed Ashbrook or Aqua Aerobics as acceptable manufacturers, SBR Specifications
Section 11.01.B.3 made the contractor fully responsible for changes to the structural, piping,
mechanical, electrical, instrumentation, or any other changes necessary to incorporate those
systems into the Project. See Cummins I. Because it received a better deal on the SBR system
from Ashbrook than from ABJ Sanitaire, Cummins proposed to install the Ashbrook SBR.
4
On February 12, 2014, the Authority and Cummins executed the
Contract. On March 11, 2014, GF issued Cummins a Notice to Proceed. Cummins
installed the Ashbrook SBR at the Plant. After the SBR was put into operation in
2015,7 the parties discovered, inter alia, influent overflow and excessive effluent
decant problems.8 The parties disagreed on the solutions and the costs thereof. On
March 17, 2016, Cummins filed a complaint (and, thereafter, an amended complaint
and second amended complaint) in the trial court against the Authority alleging that
the Authority breached the Contract. In response, the Authority filed answers with
new matter and counterclaims against Cummins.
In Cummins I, this Court declared regarding the SBR system:
Cummins was at all times solely responsible for
incorporating the Ashbrook SBR as specified in the
Contract Documents. In that context, Section 11.01.B [of
the Project Manual (Section 11.01.B.3), (Ex. D-2 at 22),]
mandated: “[T]o the extent that [the Ashbrook SBR’s]
proper incorporation into the Work[9] require[d] changes
to the structural, piping, mechanical, electrical,
instrumentation, or any other changes of whatsoever
nature, [Cummins was] responsible for” exercising its (or
Ashbrook’s) ingenuity anticipating and identifying
changes necessary to make the Ashbrook SBR and the
connecting systems work as required by the Contract
7
The Authority began operating the new SBR in August 2015. The Project’s certificate of
substantial completion reflected that it was substantially completed as of December 22, 2015.
8
Effluent is treated or untreated wastewater that flows out of the system.
9
Work is defined in General Conditions Section 1.01.A.52 as
[t]he entire completed construction, or various separably identifiable
parts thereof required to be provided under the Contract Documents.
Work includes and is the result of performing or providing all labor,
services, and documentation necessary to produce such
construction, and furnishing, installing, and incorporating all
materials and equipment into such construction, all as required by
the Contract Documents.
Ex. D-2 at 127 (emphasis added).
5
Documents, designing or at the very least making GF
aware of such changes and/or working with GF to
incorporate them, and ultimately guaranteeing an
operational SBR system in accordance with the Contract
Documents, all at Cummins’ expense. Section 11.01.B.3
[] (emphasis added). . . . The Contract expressly shifted to
[Cummins] the responsibility and risk for “changes of
whatsoever nature,” Section 11.01.B.3, for [Cummins] to
incorporate a different SBR and/or equipment into GF’s
design.
Cummins I, 237 A.3d at 601 (emphasis omitted). In Cummins II, this Court
remanded this case for the trial court to conduct a new trial on the parties’ SBR-
related claims, including the SBR-related counterclaims, the change order10/extra
work claims, and the non-SBR-related counterclaims. In light of Cummins I, the
Cummins II Court expressly prohibited Cummins from retrying questions of its
liability for defective SBR system performance.
On April 1, 2021, while this case was on remand to the trial court the
first time, the Authority filed an interim Motion for Attorneys’ Fees and Costs (First
Fees Motion) and a brief in support thereof. See Reproduced Record (R.R.) at 190a-
209a, 213a-226a. Cummins challenged the First Fees Motion as premature. See
R.R. at 210a-211a. On June 29, 2021, the trial court dismissed the First Fees Motion
as premature, without prejudice. See R.R. at 227a.
On remand, by January 24, 2023 order, the trial court, inter alia,
ordered a new trial and granted time for the parties to conduct limited discovery. On
September 8, 2023, the Authority filed a Motion in Limine Concerning Contract
Interpretations for SBR Claims and a supporting brief asking the trial court to, inter
alia, prohibit Cummins from disputing, and instruct the jury, that Cummins alone
10
According to General Conditions Section 1.01.A.11, a change order “authorizes an
addition, deletion, or revision in the Work, or an adjustment in the Contract [p]rice or the Contract
[t]imes; and which is issued on or after the [e]ffective [d]ate of the [Contract], and upon execution
by all parties, amends the Contract.” Ex. D-2 (Project Manual) at 123.
6
was contractually responsible for identifying, making, and paying for any changes
necessary for the proper incorporation of the Enaqua UV equipment into the Project
design. See R.R. at 378a-400a, 494a-509a. Cummins opposed the Motion in Limine
Concerning Contract Interpretations for SBR Claims. See R.R. at 401a-451a. By
December 22, 2023 order, the trial court granted the Authority’s request, in part,
determining based on the Contract language and Cummins I,
Cummins is solely responsible for identifying, making[,]
and paying for any changes necessary for the proper
incorporation of the UV [] equipment into the Project
design.[FN]1
[FN]1
There is a genuine dispute as to who chose the
UV equipment. [The Authority] asserts that it was
Cummins and therefore [SBR Specifications
Section] 11.01.B [(Section 11.01.B)] applies.
Cummins asserts that it was [GF], and therefore
[Section 11.01.B] does not apply. Cummins
argues that the penultimate question of who chose
the UV equipment presents an issue of material
fact that must be resolved by the jury. But for the
Commonwealth Court’s [Cummins I] decision,
this [trial c]ourt agrees.
R.R. at 511a; see also R.R. at 510a, 512a-521a.
The trial court conducted a jury trial from January 22 to February 1,
2024. On February 1, 2024, the jury concluded that the Authority breached the
Contract by failing to pay Cummins the Contract balance. See R.R. at 3030a. In
addition, the jury determined that the Authority breached the Contract by failing to
pay Cummins and awarded Cummins compensation for the following extra work
claims: control/survey ($34,140.60), communication ($46,800.00), additional
painting - Headworks Building No. 2 (Headworks No. 2) ($83,455.00), painting
conduit11 ($13,720.00), painting (Issue Nos. 111-115) ($2,700.00), storm sewer
11
Conduit is piping that surrounds and protects electrical wires.
7
rerouting overtime ($60,455.07), and SBR electrical work ($30,457.27). See R.R.
at 3031a. Further, having concluded that Cummins breached the Contract by failing
to perform its work in accordance with the Contract’s requirements, which resulted
in defective or incomplete work, the jury awarded the Authority compensation for
the SBR’s excessive effluent decants ($605,000.00) and painting the SBR air
pipeline ($30,668.00). See R.R. at 3032a-3033a. Although it did not award the
Authority any compensation for the Authority’s resolution of the SBR gate
overflows with hard pipe and valves, see R.R. at 3033a, the jury reduced the
$259,920.00 Contract balance by the $241,622.00 the Authority eventually paid to
have hard pipe and valves installed during Project Phase 3; thus, the jury awarded
Cummins only $18,298.00 of the Contract balance. See R.R. at 3030a. Finally, the
jury determined that since Cummins achieved timely final completion of the Project
as the Contract required, the Authority was not entitled to liquidated damages. See
R.R. at 3034a.
On February 2, 2024, the trial court ordered the parties to file post-trial
motions by March 25, 2024. See R.R. at 3035a. On March 21, 2024, the Authority
filed its Motion seeking judgment as a matter of law on all of the claims on which
Cummins prevailed and on certain of the Authority’s counterclaims. See R.R. at
3037a-3942a. The Authority’s Motion included a request to mold the verdict.
Cummins opposed the Authority’s Motion.
On March 25, 2024, Cummins filed its Motion, therein requesting a
new trial on the influent overtopping, excessive decant, and SBR air pipe painting
issues or, in the alternative, remittitur and molding of the jury’s verdicts on those
counterclaims. See R.R. at 3980a-4074a. The Authority opposed Cummins’
Motion. That same day, Cummins also filed a Motion to Mold the Verdict, wherein
it maintained, inter alia, that it was entitled to attorneys’ fees, costs, and penalty
interest relative to the Authority’s bad faith, but added:
8
[G]iven the significant issues still remaining in the case for
resolution, including the issues identified in Cummins’
Motion . . . , it is premature for the [trial c]ourt to rule on
Cummins’ entitlement to penalty interest, costs, and
attorneys’ fees under the [Contract]. Thus, Cummins
requests that the [trial c]ourt defer ruling on this issue until
after it has ruled on Cummins’ Motion . . . . Consequently,
Cummins respectfully reserves the right to a supplemental
submission regarding its entitlement to penalty interest,
costs, and attorneys’ fees . . . subject to the [trial c]ourt’s
ruling on Cummins’ Motion . . . .
Cummins Br. App. D at 2-3.
Following July 10, 2024 oral argument on the Post-Trial Motions, by
the August 23, 2024 Order, the trial court12 denied Cummins’ Motion. Relevant to
this appeal, the trial court also: denied the Authority’s Motion relative to the topsoil
extra work claim and counterclaim; granted the Authority’s Motion and entered
JNOV in its favor regarding the control/survey, storm sewer rerouting overtime,
communication, Headworks No. 2 painting, conduit painting, additional painting,
and SBR electrical extra work claims; and granted the Authority’s Motion and
entered JNOV in its favor relative to, inter alia, the SBR hydraulic issue analysis,
SBR electrical redesign, UV channel redesign for change to Enaqua, AUMA
Actuator, Inc. (AUMA) gate failure service calls and parts due to gate failures, and
the Authority’s overtime and call-in costs for alarms. See Trial Ct. August 23, 2024
Order (R.R. at 4449a-4465a).
By separate order dated August 22, 2024 (entered August 23, 2024),
the trial court granted Cummins’ Motion to Mold the Verdict in part and denied it in
part, awarding it pre- and post-judgment interest. See R.R. at 5341a-5342a. In
addition, the trial court granted the Authority’s Motion to Mold the Verdict in part
12
The Honorable Judge Christopher G. Hauser retired before hearing argument and
deciding the Post-Trial Motions. The Honorable John H. Foradora, a judge from the Jefferson
County Common Pleas Court, issued the decision. See R.R. at 4346a.
9
and denied it in part, awarding it pre- and post-judgment interest. The trial court
further determined that, given its resolution of Cummins’ bad faith claim, the
Authority’s related motion for nonsuit was moot. See R.R. at 5342a.
By September 3, 2024 order, the trial court granted the Authority’s
Supplemental Motion for Post-Trial Relief to Mold the Verdict and, in addition to
the amounts of interest awarded in its order dated August 22, 2024 (entered August
23, 2024), it molded the verdict on the counterclaims for which the trial court granted
JNOV in the Authority’s favor and awarded damages as follows, inter alia: SBR
hydraulic issue engineer analysis ($20,527.00); engineer SBR electrical redesign
($7,390.00); engineer UV channel redesign for change to Enaqua ($12,596.00);
AUMA service calls and parts ($4,016.00); and Authority overtime and call-in costs
($13,619.00). See R.R. at 5344a-5245a.
On September 11, 2024, the Authority filed its Second Fees Motion
seeking $3,108,611.71. See R.R. at 4468a-5240a. On September 17, 2024,
Cummins filed an Application to Stay Ruling on the Authority’s Second Fees
Motion “until after [this] Court has resolved Cummins’ forthcoming appeal.” R.R.
at 5242a-5249a. On September 19, 2024, Cummins filed a Praecipe for Entry of
Judgment. See R.R. at 5307a-5308a. That same day, the trial court entered judgment
against Cummins in the amount of $791,063.10 and against the Authority in the
amount of $188,855.08. See R.R. at 5347a-5350. Also that same day, Cummins
appealed to this Court from the August 23, 2024 Order denying Cummins’ Motion.13
On October 2, 2024, the Authority filed its cross-appeal.
On October 9, 2024, the trial court denied the Authority’s Second Fees
Motion as untimely. Also on October 9, 2024, the trial court directed the Authority
to file a Concise Statement of Errors Complained of on Appeal pursuant to
13
This Court docketed Cummins’ appeal at Pa. Cmwlth. No. 1263 C.D. 2024.
10
Pennsylvania Rule of Appellate Procedure (Appellate Rule) 1925(b) (Appellate Rule
1925(b) Statement). On October 10, 2024, the trial court directed Cummins to file
an Appellate Rule 1925(b) Statement.
On October 18, 2024, the Authority appealed to this Court from the trial
court’s August 23, 2024 Order and October 9, 2024 order.14 On October 22, 2024,
the Authority filed its Appellate Rule 1925(b) Statement. On October 25, 2024,
Cummins filed its Appellate Rule 1925(b) Statement. The trial court issued its
opinions pursuant to Appellate Rule 1925(a) (Appellate Rule 1925(a) Opinions) on
November 1, 2024.15 On March 28, 2025, this Court consolidated the three appeals,
identifying Cummins as the designated appellant and the Authority as the designated
appellee/cross-appellant. Thereafter, the parties filed their briefs. The matter is now
ripe for disposition.
Discussion
Cummins’ Motion
a. Proposed Fixes
Cummins argues that the trial court erred by denying its Motion seeking
a new trial or remittitur when, despite that Cummins had the contractual obligation
to achieve the SBR’s requisite performance standards and remedy any defects, the
Authority prevented it from implementing fixes it proposed for the influent
overtopping, excessive effluent decant, and SBR air pipe painting issues at no cost
to the Authority.
14
This Court docketed the Authority’s appeals at Pa. Cmwlth. Nos. 1320, 1515 C.D. 2024.
15
The trial court’s Appellate Rule 1925(a) Opinions in response to the Post-Trial Motions
summarize and/or adopt its reasoning in its August 23, 2024 Order and the separate August 22,
2024 order (entered August 23, 2024). See R.R. at 5501a-5502a. The trial court’s additional
Appellate Rule 1925(a) Opinion adopts its reasoning in its October 9, 2024 decision. See R.R. at
5503a.
11
Initially,
[w]hile a jury’s verdict and damages award are generally
insulated from challenge, the grant of a new trial may be
required to achieve justice in those instances where the
original trial, because of taint, unfairness, or error,
produces something other than a just and fair result, which
is the principle goal of judicial proceedings.
Mader v. Duquesne Light Co., 241 A.3d 600, 612 (Pa. 2020) (Mader II).
“A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the same
facts would have arrived at a different conclusion.”
[Commonwealth v. Clay, 64 A.3d 1049,] 1055 [(Pa.
2013)]. When a trial court considers a motion for a new
trial based upon a weight of the evidence claim, the trial
court may award relief only “when the jury’s verdict is
so contrary to the evidence as to shock one’s sense of
justice and the award of a new trial is imperative so
that right may be given another opportunity to
prevail.” Id. The inquiry is not the same for an appellate
court. Rather, when an appellate court reviews a weight
claim, the court is reviewing the exercise of discretion
by the trial court, not the underlying question of whether
the verdict was against the weight of the evidence. Id. at
1054. The appellate court reviews a weight claim using
an abuse of discretion standard. Id. at 1057.
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (emphasis added).
In Harman ex rel. Harman v. Borah, . . . 756 A.2d 1116,
1121-22 ([Pa.] 2000), [the Pennsylvania Supreme] Court
explained the process of reviewing a motion to grant or
deny a new trial. First, the underlying matter that formed
the basis for the trial court’s decision is to be reviewed
- that is, whether a mistake occurred and whether that
mistake was sufficient to order a new trial. If the
appellate court agrees with the trial court that an error
occurred, it proceeds to determine whether the trial
court abused its discretion in ruling on the request for
a new trial. Id. at 1122; Morrison, 646 A.2d at 571;
Coker, 625 A.2d at 1184 (“Discretion must be exercised
on the foundation of reason.”). An abuse of discretion
12
exists when the trial court has rendered a judgment that is
manifestly unreasonable, arbitrary, or capricious, has
failed to apply the law, or was motivated by partiality,
prejudice, bias, or ill will. Id. at 1184-85. Merely because
an appellate court would have reached a different result
than the trial court does not constitute a finding of an abuse
of discretion. Morrison, 646 A.2d at 571. Also, “[w]here
the record adequately supports the trial court’s
reasons and factual basis, the [trial] court did not
abuse its discretion.” Id. (quoting Coker, 625 A.2d at
1187).
Mader II, 241 A.3d at 607 (emphasis added).
In the alternative, Cummins seeks remittitur, which is the process by
which a trial court may reduce an excessive jury verdict. See Carlino v. Ethicon,
Inc., 208 A.3d 92 (Pa. Super. 2019).16
[U]nder Pennsylvania law, the decision to grant a
remittitur depends on whether the award of
compensatory damages lies beyond “the uncertain limits
of fair and reasonable compensation” or whether the
verdict “so shocks the conscience as to suggest that the
jury was influenced by partiality, prejudice, mistake,
or corruption.” Potochnick v. Perry, 861 A.2d 277, 285
(Pa. Super. 2004). This standard is highly deferential,
because the trial judge serves not as finder of fact but as
impartial courtroom authority with obligation to give great
respect to the jury’s function. Ferrer v. Tr[s.] of Univ. of
P[a.], . . . 825 A.2d 591, 611 ([Pa.] 2002). . . . Th[e
appellate c]ourt is not free to substitute its judgment for
that of the fact[-]finder. “Rather, it is [the appellate
court’s] task to determine whether the lower court
committed a ‘clear’ or ‘gross’ abuse of discretion when
conducting its initial evaluation of a defendant’s request
for remittitur.” Dubose v. Quinlan, 125 A.3d 1231, 1244
(Pa. Super. 2015) (citation omitted).
16
“In general, [Pennsylvania] Superior Court decisions are not binding on this Court, but
they offer persuasive precedent where they address analogous issues.” Lerch v. Unemployment
Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
13
Carlino, 208 A.3d at 118 (emphasis added) (quoting Hammons v. Ethicon, Inc., 190
A.3d. 1248, 1285-86 (Pa. Super. 2018), aff’d, 240 A.3d 537 (Pa. 2020)).
Here, regarding Cummins’ proposed fixes, the trial court held:
Having read the trial transcripts in their entirety, . . . the
[trial c]ourt is neither shocked nor surprised by the jury’s
verdict.
As advocates are wont to do, Cummins casts the evidence
in a self-promoting light. Evaluated more objectively, it
did not depict [the Authority] as the justified obstructionist
[Cummins] attempts to portray. Certainly the evidence
and instructions would have supported a verdict consistent
with Cummins’ position. But on every issue - the cover-
fix, the excessive decant, and painting - [the Authority]
countered [Cummins’] evidence with testimony indicating
that Cummins’ proposed solutions were impractical or
would not remedy the contractual deficiencies or that
Cummins’ failure to communicate with [the Authority]
was the reason it never drained the SBR tank housing the
air line Cummins admits it was responsible to paint, and
that evidence was not so weak or preposterous as to defy
common sense. The jury thus had a choice and did
precisely what juries are supposed to do: it weighed the
evidence and concluded that [the Authority’s] was more
credible. Its decision was wholly sustainable and does not
warrant a new trial or remittitur.
Trial Ct. August 23, 2024 Order at 4 (R.R. at 4452a).
At the outset, this Court observes that Cummins’ President and owner,
Robert Cummins, and his brother, Project manager, Nick Cummins, admitted - and
GF’s Senior Project Manager/engineer, John F. Rae, P.E. (Rae), confirmed - based
on Cummins I, that Cummins was contractually responsible for identifying, making,
and paying for any changes necessary to incorporate the SBR into the Project design,
and complying with the Contract’s performance specifications. See R.R. at 743a,
771a-772a, 1161a, 1175a, 1233a, 1913a-1916a. The Cummins I Court further
declared:
14
[I]f Ashbrook failed to take into account the hydraulics
and the influent piping size for the SBR system, the
Contract made Cummins responsible therefor. Section
6.06.D of the General Conditions (Concerning Suppliers
and Others), specified: “[Cummins] shall be fully
responsible to [the Authority] and [GF] for all acts and
omissions of the . . . [s]uppliers, and other individuals or
entities performing or furnishing any of the Work just as
[Cummins] is responsible for [its] acts and omissions.”
[Ex. D-2 at 155] (emphasis added).
Cummins I, 237 A.3d at 599.
Proposed Influent Overtopping Cover Fix
Cummins sought either a new trial or remittitur, claiming that the jury’s
reduction of Cummins’ contract balance by $241,622.00 was against the clear
weight of evidence that demonstrated that the Authority improperly prevented
Cummins from implementing the cover-fix to address the influent overtopping issue.
The Authority’s original IFB sought an SBR system that handled
influent by hard pipe and valves to each influent tank, which was Ashbrook’s
standard design and was less expensive; however, when the Authority rebid the
Project in 2013, the IFB specified an open channel configuration with gates, rather
than hard pipe and valves. See R.R. at 703a-704a, 706a-707a, 750a-751a, 976a,
1464a-1465a, 1535a, 1612a-1619a, 1629a-1635a, 1654a-1656a, 1920a, 2270a-
2283a, 2288a-2289a, 2295a, 2308a, 2414a, 2543a; see also Ex. D-45.
Although the Authority did not inform Cummins during the first six
months the SBR was in operation (from August 2015 to February 2016) that influent
overtopping was occurring, once being made aware, Nick Cummins investigated,
simulated peak wet weather (i.e., heavy rain or snowmelt) flows, and agreed that the
Ashbrook SBR gates did not comply with the Contract’s performance specifications;
specifically, “[u]nder certain high flow conditions, . . . the influent . . . at . . . 88 or
15
9[,]200 [GPM], [] would . . . spill over the gates and go into another tank” at the
wrong point in a treatment cycle. R.R. at 693a; see also R.R. at 694a-695a, 750a-
753a, 756a, 941a-948a; see also Exs. P-522, D-341.
Cummins proposed a fix that consisted of removing the grate from the
top of each SBR influent box and replacing it with a solid cover that filled the space
between the top of the influent gate and the influent box until the automatic gate
opened, thereby preventing the overtopping. See R.R. at 695a, 958a-959a, 1404a;
see also Ex. D-175. Nick Cummins described that the cover would be made of
aluminum, would be approximately 6 feet, 4½ inches by 2 feet, 11¼ inches by ½
inch, with a plate that measured 3 feet by 4½ inches by 1 foot, 2½ inches, and would
require approximately 20 plus bolts. See R.R. at 1241a, 1243a-1245a; see also Ex.
Demonstration (Demo) 12. Cummins discussed its proposed cover fix with Alfa
Laval/Ashbrook’s17 Global Technical Manager, Jeff Devine (Devine), and
Ashbrook’s SBR and Enaqua UV system representative Ed Nichols (Nichols) of
Nichols Environmental, neither of whom voiced any problem or objection to the
solution; in fact, although Ashbrook had not previously used a cover on an influent
box to control wastewater flow into an SBR tank and declined to review and provide
feedback on it, Ashbrook agreed to stand behind its warranty for the SBR system
with the cover fix in place. See R.R. at 696a, 701a, 965a-966a, 982a-984a, 1235a-
1240a, 1407a-1408a, 1438a-1440a, 1465a, 1627a-1628a, 1656a-1657a; see also
Exs. P-130, P-143.
Cummins hired Hannon Engineering, P.C.’s James Hannon
(Hannon),18 who worked with Ashbrook and Cummins’ fabricator, Micale
Fabricators, and prepared shop drawings for the proposed cover fix that Cummins
17
Alfa Laval acquired Ashbrook in 2012. See R.R. at 1485a.
18
The trial court accepted Hannon as an expert witness in the fields of structural
engineering and Department of Environmental Protection (DEP) permit compliance.
16
presented to GF, which GF marked reviewed. See R.R. at 695a-700a, 706a, 750a,
1396a-1397a, 1401a-1406a, 1418a, 1422a, 1426a-1427a, 1431a, 1435a-1436a; see
also Exs. P-130, P-469, P-522, D-175, Demo 12. Thereafter, Cummins’ ordered the
necessary materials from Micale Fabricators. See R.R. at 757a-758a, 780a-789a,
950a-951a, 959a-960a, 966a-969a, 973a-974a. However, when Cummins contacted
the Authority to set an installation date, citing concerns of potential leakage,
Ashbrook’s warranty, and safety risks, the Authority informed Cummins that it
would rather have hard pipe and valves instead of Cummins’ proposed cover fix.
See R.R. at 701a-702a, 951a-952a, 959a, 969a-971a, 973a-974a, 985a-988a, 1254a-
1255a, 1351a-1352a, 2578a-2579a.
Rae confirmed that GF marked the proposed cover fix reviewed, but
denied that it represented GF’s approval. See R.R. at 1945a-1946a, 1949a, 2132a;
see also Exs. P-130, D-175. Rae and the Authority’s consultant, Brian Book
(Book),19 claimed they had never seen an SBR that used a cover for influent control
and, thus, did not consider it a proven design, which the Contract required. See R.R.
at 1945a-1946a, 2308a; see also Ex. Demo 12. Rae posed numerous concerns to
Cummins, in particular, that Ashbrook did not expressly endorse the cover fix and
the fix did not address the underlying problem of incompatibility between the
influent piping and Ashbrook’s design. See R.R. at 1945a-1951a; see also Ex. Demo
12, Exs. P-130, D-371.
Book and the Authority’s operations manager, Donnie Hayden
(Hayden), also expressed concerns that the cover could create a pressurized vessel
containing methane, the leakage potential of the seal between the gate frame and the
concrete, and the safety risk to Authority staff who would have to lean over to
remove the numerous bolts, lift a 150- to 200-pound cover, and enter the SBR box
19
The trial court accepted Book as an expert in the design and operation of wastewater
treatment plants and SBR and specifications applicable thereto.
17
to apply grease to prevent the gates from freezing.20 See R.R. at 2308a-2310a,
2312a-2323a, 2431a, 2436a-2437a, 2470a-2474a, 2555a, 2558a; see also Ex. D-282.
Authority board member, Bucky Clark (Clark), confirmed that the Authority refused
the cover fix because it was not in accordance with the Contract’s specification,
Ashbrook never confirmed or warranted that it was a good solution, and it posed a
safety risk. See R.R. at 2602a-2604a.
Hannon and Nick Cummins admitted that the cover would create a
pressurized space, and Nick Cummins agreed that the grates over the cover could
freeze, making it more difficult to remove the cover’s bolts, and acknowledged that
having operators kneel or lay on their stomachs over the SBR box to unbolt the cover
posed a safety risk. See R.R. at 1238a-1242a, 1247a-1251a, 1412a-1415a, 1422a,
1425a-1429a, 1437a. Nick Cummins also acquiesced that the cover sealant could
freeze, which would require moving or defrosting and greasing the gates. See R.R.
at 1246a-1249a.
Cummins did not intend to charge the Authority for what it estimated
was a $15,000.00 solution, and assured the Authority that Cummins would design