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March 27, 2026 Get Citation Alerts Download PDF Add Note

Tedesco Excavating v. FWH Development

Superior Court of Pennsylvania

• Citations: None known
• Docket Number: 995 WDA 2022
• Panel: Mary Janes Bowes, Jack A. Panella

• Judges: Panella; Bowes

• Opinion

• Authorities (9)

• Cited By (0)

• Summaries (0)

• Similar Cases (73.7K)

• PDF

Lead Opinion

                        by [Jack A. Panella](https://www.courtlistener.com/person/8243/jack-a-panella/)

J-E01002-25

TEDESCO EXCAVATING & PAVING, : IN THE SUPERIOR COURT OF
INC. : PENNSYLVANIA
:
v. :
:
FWH DEVELOPMENT, LLC :
:
Appellant : No. 995 WDA 2022

Appeal from the Judgment of Sentence Entered August 1, 2022
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD 19-006017

BEFORE: LAZARUS, P.J., BOWES, J., PANELLA, P.J.E., DUBOW, J.,
McLAUGHLIN, J., KING, J., SULLIVAN, J., BECK, J., and LANE, J.

OPINION BY PANELLA, P.J.E.: FILED: March 27, 2026

FWH Development, LLC, appeals from the $678,238.31 judgment

imposed against it, after a jury verdict in favor of Tedesco Excavating &

Paving, Inc. After our thorough review, we affirm because Tedesco sufficiently

performed the contract to avail itself of the Contractor and Subcontractor

Payment Act (“CASPA”),1 which protected Tedesco from FWH’s anticipatory

repudiation.

FWH hired Jerrod Crosby of David E. Wooster & Associates to serve as

the Project engineer for Whitehall Meadows, a residential and commercial

development along State Route 228 in Butler County that FWH intended to

build. Work on Route 228 involved widening the road and adding traffic lights,

which Mr. Crosby placed out for bids.

---

1 See 73 P.S. §§ 501-517.
J-E01002-25

Tedesco was the lowest bidder. On Mr. Crosby’s recommendation, FWH’s

owner, Fred Hespenheide, signed a unit-price contract with Tedesco on May

19, 2015, to perform the Route 228 work, at a contract price of

$1,259,000.00. See Plaintiff’s Ex. 53, Agreement § 2 at 2, 6.

The contract included Article 15, “Suspension of Work and Termination.”

Id. Agreement § 4 at 32-34. Under Article 15.4, FWH could terminate the

contract “without cause” after providing Tedesco and Mr. Crosby seven days’

written notice. Id. at 33. If FWH invoked the provision, it agreed to pay

Tedesco “for completed and acceptable work executed in accordance with the

contract . . . including fair and reasonable sums for overhead and profit on

such work.” Id. (some capitalization omitted). However, Tedesco could not

collect “anticipated profits or revenues or other economic loss arising out of

or resulting from such termination.” Id.

The contract required the work to be completed in 220 days, and time

was of the essence, with FWH requiring Tedesco to immediately complete

various work items. See id.; N.T., 5/9/22, at 117-127. Toward that end,

Tedesco executed a subcontract with an electrical subcontractor, procured and

stored traffic light poles, prepared and submitted detailed engineering shop

drawings for the traffic light poles, and secured insurance for the Project. See

N.T., 5/9/22, at 119; Plaintiff’s Ex. 68, Certificate of Liability Insurance;

Plaintiff’s Ex. 69, Tedesco & Bronder Technical Services Contract for 228

Project; Plaintiff’s Ex. 70, Plaintiff’s Ex. 71, Bronder Proposal to Install Traffic

-2-
J-E01002-25

Intersection. FWH required representatives from Tedesco and its electrical

subcontractor to attend a pre-construction meeting with PennDOT on or about

July 1, 2015. See N.T., 5/12/22, at 563-65; Plaintiff’s Ex. 53, email confirming

PennDOT meeting.

Although Tedesco planned to complete the Route 228 work in 2015, at

the PennDOT meeting FWH informed Tedesco that it lacked funding and would

need to secure another lender. See id. However, the Project was not

suspended at that time, leaving Tedesco with a gap in its 2015 paving

schedule and resulting in the loss of the 35% profit Tedesco expected to earn

that summer on the Route 228 work. Tedesco remained eager and ready to

do the work whenever FWH obtained financing. See N.T., 5/11/22, at 399;

N.T., 5/12/22, at 582-83. Despite the parties communicating over the next

three years, the Project did not commence.

In response to FWH’s March 20, 2018 request for an escalation proposal

for price increases from the original contract price, due to the rise in fuel,

materials, and labor costs, Tedesco submitted a proposal to Mr. Crosby for an

estimated 5% increase per year, bringing the contract price to $1,560,000.00.

FWH did not start the Project in 2018. It hired Momentum, a Seattle-based

company, to replace Wooster & Associates and Mr. Crosby as site manager.

Momentum sent Bob Saunders to monitor the subcontractors and “the

construction management on site and [to do] all of that work, labor bids,

supervising bids.” N.T., 5/12/22, at 538.

-3-
J-E01002-25

Mr. Saunders met with Tedesco to request an updated escalation

proposal. On August 15, 2018, Tedesco e-mailed Mr. Saunders a new contract

price of $1,652,463.70. Mr. Saunders did not reply.

On March 19, 2019, Mr. Saunders communicated to a third party that

FWH “awarded the contract for site paving and the [Route 228]

improvements” to Shields Paving, Tedesco’s competitor. Plaintiff’s Ex. 60 at

1. On April 4, 2019, FWH’s counsel2 wrote to Tedesco and Tedesco’s

subcontractor, admitting FWH did not intend to honor its contract with

Tedesco. He stated:

In 2015, it was intended that Tedesco [would] serve as the [Route
228] contractor for the Whitetail Meadows . . . Project in Adams
Township, Butler County . . .

. . . In late 2018, Tedesco submitted a revised estimate for the
cost of the [Route 228] work. Tedesco’s revised cost estimate was
substantially in excess of the original cost estimate provided by
Tedesco in 2015. Tedesco’s revised cost estimate was also in
excess of other cost estimates for the [Route 228] work FWH
received from other contractors. As a result, [FWH will] no longer
use Tedesco to complete the [Route 228] work for the Project.

Plaintiff’s Ex. 61, at 2.

On April 23, 2019, three weeks later, Tedesco sued FWH for breach of

contract, seeking an anticipated 35% overhead and lost profits from the Route

228 work. On the same date, Tedesco issued Payment Application #2 for Final

Payment to FWH, also requesting payment for Tedesco’s overhead and profit

---

2 FWH’s counsel has passed away. Therefore, he did not testify at trial.

-4-
J-E01002-25

margin due under the Agreement as a result of FWH’s breach of contract, (i.e.,

35% of the original value of the Agreement, less payments made). See N.T.,

5/10/22, at 234-35; Plaintiff’s Ex. 4, Payment Application #2 for Final

Payment. FWH never responded to Payment Application #2. See N.T.,

5/10/22, at 235.

On May 3, 2019, FWH sent Tedesco a letter, stating: “Pursuant to

Section 15.4 of the General Conditions of the [May 19, 2015] agreement,

[FWH] hereby provides the requisite seven days’ notice of its intention to

terminate the agreement for convenience. Said termination will be effective

May 10, 2019.” Defendant’s Ex. 4 (some capitalization omitted).

The case proceeded to a jury trial, at the conclusion of which the jurors

found FWH to be in breach of the 2015 contract. It awarded Tedesco

$401,046.00 in overhead and lost profits. FWH moved for post-trial relief, and

Tedesco moved to mold the verdict to include interest and attorneys’ fees

under CASPA. The trial court denied FWH’s motion and partially granted

Tedesco’s motion. It added $135,664.87 in interest; $133,682.00 in

attorneys’ fees; and $7,845.44 in legal costs to the verdict. The trial court

entered judgment in favor of Tedesco for $678,238.31.

FWH appealed, raising nine issues for this Court’s review. A divided

three-member panel affirmed the judgment, disagreeing over whether the

trial court erred in awarding an additional $269,346.87 in statutory damages

under CASPA. The en banc Court granted reargument. FWH raises one

-5-
J-E01002-25

question for our review: “Whether a contractor that has been paid for all work

performed under a construction contract is entitled to recover interest and

attorneys’ fees under the [CASPA]?” FWH’s Substituted Brief, at 4.3

“The interpretation and application of a statute is a question of law.” In

the Interest of C.K.M., 279 A.3d 610, 611 (Pa. Super. 2022), appeal denied,

291 A.3d 864 (Pa. 2023) (citation omitted). “As with all questions of law, we

must employ a de novo standard of review and a plenary scope of review[.]”

Id. at 612 (citation omitted).

Our “goal in interpreting any statute is to ascertain and effectuate the

intention of the General Assembly while construing the statute in a manner

that gives effect to all its provisions.” Id. (citing 1 Pa.C.S.A. § 1921(a)). “It is

well settled that the best indication of the General Assembly’s intent may be

found in a statute’s plain language.” Id. (citation omitted). “When the words

of a statute are clear and free from all ambiguity, the letter of it is not to be

disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b).

Importantly, in undertaking statutory analysis, “it is not for the courts to add,

by interpretation, to a statute, a requirement which the legislature did not see

fit to include.” Shafer Elec. & Condy. v. Mantia, 96 A.3d 989, 994 (Pa.

2014) (citation omitted).

---

3 FWH does not contest the panel’s affirmance of the trial court judgment
finding FWH materially breached the Agreement and awarding Tedesco’s
principal damages from the breach in the amount of $401,046.00. See FWH’s
Substitute Brief, at 6-7.

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The CASPA is “a comprehensive statute enacted in 1994 to cure abuses

within the building industry involving payments due from owners to

contractors, contractors to subcontractors, and subcontractors to other

subcontractors.” Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497,

500 (Pa. Super. 2009). A remedial statute, its purpose is “to protect

contractors and subcontractors and to encourage fair dealing among parties

to a construction contract.” Id. at 500–01 (ellipsis, brackets, citation, and

internal quotation marks omitted). When the CASPA applies, “interest,

penalty, attorney fees, and litigation expenses may be imposed on an owner

. . . who fails to make payment to a contractor . . . in compliance with the

statute.” Id. at 501 (footnote omitted).

Under the CASPA, “[p]erformance by a contractor or a subcontractor in

accordance with the provisions of a contract shall entitle [them] to payment

from the party with whom the contractor or subcontractor has contracted.” 73

P.S. § 504. FWH claims that this sentence requires performed and completed

physical work as a prerequisite for a contractor or subcontractor to recover

anything under the CASPA. See FWH’s Substituted Brief, at 11-14. According

to FWH, Tedesco’s breach-of-contract action does not fall under the “CASPA’s

remedial umbrella,” because contractors and subcontractors may only seek

statutory interest and attorneys’ fees for “field work” that was “actually

performed” and “satisfactorily completed.” Id. at 11. We disagree.

-7-
J-E01002-25

FWH’s interpretation assumes that, when the legislature wrote

“Performance by a contractor or a subcontractor in accordance with the

provisions of a contract shall entitle [them] to payment,” 73 P.S. § 504, what

the legislature really meant to write was, “Performance [of physical work

and completion of the construction project] by a contractor or a

subcontractor in accordance with the provisions of a contract shall entitle

[them] to payment.” Id. However, the General Assembly did not include those

words in Section 504.

Nothing in the statutory language supports an assumption that only

work carried out to completion constitutes “performance” and is the sole

prerequisite to invoke the CASPA. In fact, the CASPA does not define

“performance.” Therefore, this Court must consider, decide upon, and enforce

the definition of “performance” that the legislature most likely intended to use

in Section 504. This task is particularly difficult, because there are many

definitions for “performance.”

For example, the Oxford English Dictionary contains 13 definitions of

“performance.” See THE OXFORD ENGLISH DICTINARY, The Meaning & Use

of “Performance.”4 Admittedly, over half of those are inapplicable to the CASPA

—e.g. plays, concerts, poetry, medicine, business investments, and religious

---

4 Available at:

https://www.oed.com/dictionary/performance_n?tab=meaning_and_use#31
240456 (last visited 9/22/25).

-8-
J-E01002-25

ceremonies. Still, if the legislature intended “performance” by its common,

everyday meaning, any of the following could apply in Section 504:

1.a. The accomplishment or carrying out of something
commanded or undertaken; the doing of an action or
operation.

1.b. The quality of execution of an action, operation, or
process; the competence or effectiveness of a person
or thing in performing an action; spec. the
capabilities, productivity, or success of a machine,
product, or person when measured against a
standard.

1.c. Something performed or done; an action, act, deed,
or operation; (occasionally) a notable deed,
achievement, or exploit (obsolete).

---

1. The carrying out, discharge, or fulfilment of a command, duty, promise, purpose, responsibility, etc.; execution, discharge. Frequently opposed to promise.

---

4.d. . . . a difficult, time-consuming, or annoying action or
procedure.

Id. (citations and etymological timelines omitted; emphasis in original).

In addition to the five colloquial definitions, “performance” carries with

it a host of legal meanings. The entry for “performance” in Black’s Law

Dictionary takes up nearly half a page, with over 20 definitions from which to

choose.

The pertinent definitions of “performance” are as follows:

1. The successful completion of a contractual duty, usu. resulting in the performer’s release from any past or future

-9-
J-E01002-25

liability; EXECUTION (2). — Also termed full performance.
Cf. nonperformance; misperformance.

➢ alternative performance (1875) One of two agreed-
on performances, either of which will satisfy a
contractual obligation.

➢ defective performance (1832) A performance that,
whether partial or full, does not wholly comply with the
contract. One example is late performance.

➢ exact performance (17c) Full performance of an
obligation as detailed in the contract.

➢ future performance (17c) Performance in the future
of an obligation that will become due under a contract.

➢ misperformance See MISPERFORMANCE.

➢ negligent performance (1818) Performance in which
the actor fails to exercise reasonable care.

➢ nonperformance See NONPERFORMANCE.

➢ part performance (18c).

1. The accomplishment of some but not all of one’s contractual obligations . . . 3. PART-PERFORMANCE DOCTRINE . . .

➢ substantial performance (18c) Performance of the
primary, necessary terms of an agreement. See
SUBSTANTIAL-PERFORMANCE DOCTRINE.

BLACK’S LAW DICTIONARY, at 1319 (10th ed. 2014) (emphasis in original).

Given this extensive list of potential definitions for “performance” that could

apply to 73 P.S. § 504, FWH’s claim that Section 504 contains plain and

unambiguous language is untenable. Instead, the General Assembly’s failure

to define “performance” within the CASPA leaves this Court in a definitional

quagmire.

• 10 - J-E01002-25

For example, the first definition of “performance” in Black’s Law

Dictionary, “successful completion of a contractual duty . . . [a]lso termed full

performance,” seems to be the one that FWH prefers. Id. Arguably, the

legislature could have used “performance” in Section 504 to mean only this

narrow definition that FWH believes to be correct. However, FWH does not

explain why this Court should adopt that definition on the legislature’s behalf.

Neither does FWH explain why the General Assembly did not intend

another possible definition provided by Black’s Law Dictionary, the

“accomplishment of some but not all of [Tedesco’s] contractual obligations,”

to constitute “performance” under Section 504. Id. If that definition is the one

that the legislature intended, then Tedesco did perform the contract by

“entering an electrical subcontract, providing various submittals and shop

drawings, securing insurance for the Project, attending a pre-construction

meeting with PennDOT, and blocking off its schedule to meet the Project’s

schedule needs.” Tedesco’s Brief, at 41.

Either definition could reasonably have been the one that the legislature

intended. Critically, those definitions are contradictory, especially as applied

in this case. Hence, reasonable minds may differ as to which definition of

“performance” the General Assembly intended to use in Section 504. In light

of this latent ambiguity in the language, FWH’s suggestion that 73 P.S. § 504

is clear and unambiguous is erroneous.

Because the language of Section 504 is unclear and ambiguous, this

Court must turn to the other provisions of Statutory Construction Act, in which

• 11 - J-E01002-25

the legislature commands that its statutes “shall be liberally construed to

effect their objects and to promote justice.” 1 Pa.C.S.A. § 1928(c). “Moreover,

because CASPA is a remedial statute, we must accord it a liberal construction.”

Zimmerman, 984 A.2d at 502 n.8 (citations omitted). The CASPA’s aim is to

protect contractors and subcontractors, such as Tedesco, from materially

breaching parties, such as FWH. See id. at 500-01. Hence, in resolving the

definitional ambiguity in the word “performance,” the Statutory Construction

Act directs this Court to apply the definition of “performance” most favorable

to Tedesco. Accordingly, we conclude that the definition of “performance” that

the legislature most likely intended in Section 504 is the “accomplishment of

some but not all of one’s contractual obligations[.]” BLACK’S LAW

DICTIONARY, at 1319.

Based on that definition, by fulfilling some its contractual obligations—

meeting and contracting with subcontractors, submitting documents and shop

drawings to FWH’s Project Manager, buying insurance, meeting with PennDOT

about the Project, and keeping a gap open in its paving schedule for FWH—

Tedesco was performing the contract. Nothing in the statute or the

appropriate, remedial definition from BLACK’S LAW DICTIONARY requires the

completion of all physical work to constitute “performance,” as FWH insists.

Moreover, even if the definition of “performance” in Section 504 meant

“full performance,” (and it does not) FWH’s anticipatory repudiation of the

contract terminated all Tedesco’s contractual obligations, as a matter of

contract law.

• 12 - J-E01002-25

An “anticipatory repudiation or breach” may occur when one party

expresses “an absolute and unequivocal refusal to perform or a distinct and

positive statement of an inability to do so.” Harrison v. Cabot Oil & Gas

Corp., 110 A.3d 178, 184 (Pa. 2015).

When FWH materially breached the contract by hiring Shields Paving to

do the work that FWH promised to Tedesco, whatever work Tedesco previously

performed under the contract instantly became “full performance,” because

Tedesco had no further contractual obligations to FWH under the contract that

FWH materially breached. See BLACK’S LAW DICTIONARY, at 1319; see also

Hocking v. Hamilton, 27 A. 836, 838 (Pa. 1893) (“Where one party to an

executory contract prevents the performance of it, or puts it out of his own

power to perform it, the other party may regard it as terminated, and demand

whatever damage he has sustained thereby.”).5

When the General Assembly enacted the CASPA in 1994, it was well

aware of Pennsylvania’s common law of contracts, including the doctrine of

---

5 It should be noted that, under FWH’s interpretation of the CASPA, a
contractor could be hired to pave 100 miles of highway, and, after paving 99
miles, if the hiring party repudiates the contract and prevents the contractor
from paving the final mile, then the contractor would not have completed the
construction contract. In FWH’s interpretation, this would bar the contractor
from seeking interest and attorneys’ fees on its expected profits from the
project under the Act. Surely, the General Assembly did not intend this
unreasonable result by its use of the word, “performance,” in 73 P.S. § 504.
See In re Estate of Ruhlman, 291 A.3d 916, 921 (Pa. Super. 2023)
(“[W]hen interpreting a statute, we must presume that the Legislature did not
intend to produce an absurd or unreasonable result.”) (internal citations and
quotation marks omitted).

• 13 - J-E01002-25

anticipatory repudiation. That doctrine has existed in this Commonwealth for

at least 175 years.

By way of example, in Campbell v. Gates, 10 Pa. 483 (1849), on

November 1, 1845, the parties entered into a five-year contract that Gates

would mine, properly clean, and haul iron ore to Campbell’s furnace. Gates

began delivering the ore, but Campbell sent him a letter complaining that the

ore was “of an inferior sort . . . which renders it very unproductive” in the

furnace. Id. at 484. Gates immediately sued Campbell for materially

breaching the entire contract.

The trial court charged the jury that, as a matter of law, the letter was

an anticipatory repudiation and material breach. The court said:

we have no hesitation in pronouncing [the letter] a refusal
[by Campbell to perform] the contract of 1st November,
1845 – a repudiation of that agreement – and a proposition
to substitute for it new and inconsistent conditions. The
contract specifies the terms on which [Campbell was] to
receive and pay for [Gates’] ore; the letter informs [Gates]
that “hereafter I will not receive any more of your ore on
any other terms than such as I conceive fair and just.” [But]
the contract gives [Campbell] no right of dockage; the letter
tells [Gates], plainly, that [Campbell has] assumed this
right, “and if you think that you can stand the process of
dockage of the ore you have hauled since the 1st of April,
as well as that which you may haul hereafter, you may
continue to haul.” The contract contemplated the delivery of
ore properly cleaned, which . . . might, or might not, be
absolutely clean ore; [by contrast,] the letter demands
“nothing but the pure iron ore.”

Now, when it is considered that Gates had received no
intimation that his ore was not according to the contract,
and when the letter was followed by an authorized refusal
to weigh the only load he carried to the furnace after the

• 14 - J-E01002-25

receipt of the letter, we hold that he was right in regarding
a letter couched in such terms as an interruption of the
contract, and a refusal on the part of [Campbell] to go on
with its performance. [Gates] did so regard it. He carried
no more ore, but instituted this action for damages.

Id. at 486 (emphasis in original).

The trial court also held that the anticipatory repudiation “seemed to be

comprehensive[.]” Id. In other words, Gates could treat the repudiation as if

it were an immediate, material breach. Thus, Gates was entitled to “recover

for the value of his contract for the whole time it had [left] to run.” Id.

The jury awarded Gates his lost profits for the five-year life of the

contract. Campbell appealed and contended the letter was not an anticipatory

repudiation, as a matter of law, but only “a requisition for exact

performance[.]” Id. at 487. He also contended that Gates could only recover

losses sustained from work he actually performed, not future lost profits.

Summarily rejecting Campbell’s claims of error, the Supreme Court of

Pennsylvania held that the jury charge “accord[ed] with the views which this

Court entertains on the subjects discussed” and affirmed “for the reasons

stated by the learned judge.” Id. at 487. Thus, the Supreme Court adopted

the trial court’s anticipatory-repudiation charge as Pennsylvania law.

With this history of the common law as background, if the legislature

wished to exclude cases such as this one—where an owner anticipatorily

repudiates a construction contract, and the contractor (or the subcontractor)

treats the repudiation as a material breach—from the scope of the CASPA, it

would have said so. The legislature did not offer any language excluding

• 15 - J-E01002-25

anticipatory repudiations from the CASPA’s protections, and we can think of

no reason as to why it would not want to protect contractors and

subcontractors from the increased economic harm that anticipatory

repudiations cause.

As this case exemplifies, by stringing Tedesco along for four years, FWH

forced Tedesco to leave gaps in its paving schedule that it could not fill. FWH’s

dishonesty about its readiness to begin the Project in 2015 deprived Tedesco

of paving profits from this and other potential jobs until FWH ultimately

repudiated the contract.

An owner who allows a contractor to perform the work in the time frame

intended at the time of contracting but then refuses to pay the contractor for

some or all of the completed work, at least allows the contractor to move its

employees and equipment to other jobs and to continue earning an income

elsewhere. But Tedesco will never be able to make up the lost time when its

employees and equipment sat idle while waiting for FWH to greenlight the

Project. Then, instead of making Tedesco whole by paying its lost overhead

and anticipated profits when FWH anticipatorily repudiated the contract and

Tedesco billed FWH for the losses FWH caused, FWH forced Tedesco to pursue

this protracted ligation.

It is now over a decade since the parties first contracted and FWH began

a pattern of obstructing Tedesco’s performance. And still FWH has not paid a

dime of contractual damage to Tedesco.

• 16 - J-E01002-25

Instead, FWH forced Tedesco to eat into the lost overhead and

anticipated lost profits by paying for attorneys’ fees and costs to litigate this

case. The CASPA’s ordinary interest, penalty interest, and attorneys’ fees are

particularly appropriate here to offset the losses that FWH caused Tedesco

from both this Project and other potential paving jobs that Tedesco could not

schedule while it waited on FWH.

Otherwise, there is no law to discourage unscrupulous owners, such as

FWH, from anticipatorily repudiating construction contracts and subsequently

litigating the contractor (and particularly a small, solo contractor) to death.

While an owner is entitled to its day in court as well, we see no reason why it

should be allowed to repudiate a contract as flagrantly as FWH has and then

not reimburse the contractor’s attorneys’ fees and interest under the CASPA

after the owner loses before a jury. Using FWH’s interpretation, when the costs

of a contractor’s lawyers and litigation exceed the contractor’s anticipated

profits from a repudiated contract, the contractor will be forced to accept the

broken contract without recourse to the courts, because the contractor would

lose more money vindicating its contractual rights than enforcing them. This

is the harsh result that the General Assembly sought to remedy when it

adopted the CASPA.

This situation is more egregious than when an owner allows a contractor

to complete the contract and withholds payment. An owner who anticipatorily

repudiates the contract completely deprives the contractor (or subcontractor)

of its expectation interest, whereas a refusal to pay for work performed only

• 17 - J-E01002-25

partially impacts that interest, and the contractor does not lose out on other

potential jobs over the course of years.

Moreover, even if an owner rightly withholds payment for unsatisfactory

work, the contractor is able to collect payment once the work is corrected. But

a contractor who has suffered anticipatory repudiation would never be able to

complete the work and invoke the CASPA’s protections, if FWH’s narrow

reading of the law stands. FWH offers no rationale for drawing such an absurd

distinction based only on when an owner materially breaches a construction

contract, and this Court does not believe the legislature intended such an

unfair result in drafting 73 P.S. § 504. “The General Assembly does not intend

a result that is absurd . . . .” 1 Pa.C.S.A. § 1922(1).

Additionally, FWH relies on 73 P.S. § 506(a). See FWH’s Substituted

Brief, at 12-13, 20. That subsection provides, “The owner may withhold

payment for deficiency items according to the terms of the construction

contract. The owner shall pay the contractor according to the provisions of

this act for any item which appears on the invoice and has been satisfactorily

completed.” 73 P.S. § 506(a). The legislature defined “deficiency item” as

“Work performed but which the owner, the contractor or the inspector will

not certify as being completed according to the specifications of a construction

contract.” 73 P.S. § 502 (emphasis added).

Under Section 502, when the work is poorly performed, an owner may

withhold payment until the work is properly completed. However, this Court

• 18 - J-E01002-25

does not view an allowance for owners who suffer poor workmanship as a

legislative endorsement of anticipatory repudiation by an owner.

Here, FWH prevented Tedesco from performing the contract, because it

anticipatorily repudiated that contract. There were no “deficiency items,” for

which FWH could withhold payment under Section 506(a), because FWH’s

violation of contract law prevented Tedesco from performing. In this Court’s

view, in order for an owner to invoke Section 506(a) of CASPA, the owner

must not have anticipatorily repudiated and, instead, must have permitted the

contractor or subcontractor a meaningful opportunity to perform the work.

Any result to the contrary would frustrate the remedial purposes of the CASPA.

Thus, Section 506 does not shield FWH from statutory liability following its

anticipatory repudiation.6

Indeed, as Tedesco contends, 73 P.S. § 505 imposes statutory duties

upon owners, such as FWH. See Tedesco’s Brief, at 22-28, 31-32, 35. “The

owner shall pay the contractor strictly in accordance with terms of the

construction contract.” 73 P.S. § 505(a).

On April 23, 2019, Tedesco provided FWH Application for Payment #2

for Final Payment, which detailed the lost overhead and profits that Tedesco

---

6 Similarly, we reject FWH’s reliance on section 3934 of the Prompt Payment

section in the Commonwealth Procurement Code, 63 Pa.C.S.A. §§ 3901-3939,
which “applies to contracts entered into by a government agency” and serves
to govern public contracts. 62 Pa.C.S.A. § 3901. The section on which FWH
relies applies to “withhold[ing] payments for deficiency items according to the
terms of the contract.” 62 Pa.C.S.A. § 3934(a). Not only are there no claimed
deficiency items here, we decline FWH’s invitation to decide this issue based
on the construction of a wholly inapplicable statute.

• 19 - J-E01002-25

sought in the wake of FWH’s anticipatory repudiation and material breach.

Upon Tedesco’s application for final payment, according to Article 5.2 of the

contract, FWH “shall pay the remainder of the Contract Price . . . .” Plaintiff’s

Ex. 53, Agreement § 2 at 2, 3.

The parties agree that FWH did not pay Tedesco the amount listed in

Application for Payment #2 for Final Payment. Therefore, FWH did not “pay

[Tedesco] strictly in accordance with terms of the construction contract.” 73

P.S. § 505(a). Under these circumstances, CASPA applies because (1) FWH

anticipatorily repudiated the construction contract, (2) Tedesco demanded

final payment for its lost overhead and profits, and (3) FWH refused to pay

the demanded sum. Hence, the trial court correctly applied the CASPA’s

remedial provisions to this case.

Judgment affirmed.

President Judge Lazarus, Judges Dubow, McLaughlin, and Lane join the

opinion.

Judge Bowes files a dissenting opinion, joined by Judges King and Beck.

Judge Sullivan concurs in the result.

DATE: 03/27/2026

• 20 -

  Dissent

                      by [Mary Janes Bowes](https://www.courtlistener.com/person/8225/mary-janes-bowes/)
  

J-E01002-25

TEDESCO EXCAVATING & PAVING, : IN THE SUPERIOR COURT OF
INC. : PENNSYLVANIA
:
:
v. :
:
:
FWH DEVELOPMENT, LLC :
: No. 995 WDA 2022
Appellant :

Appeal from the Judgment Entered August 1, 2022
In the Court of Common Pleas of Allegheny County Civil Division at
No(s): GD 19-006017

BEFORE: LAZARUS, P.J., BOWES, J., PANELLA, P.J.E., DUBOW, J.,
McLAUGHLIN, J., KING, J., SULLIVAN, J., BECK, J., and LANE, J.

DISSENTING OPINION BY BOWES, J.: FILED: March 27, 2026

Respectfully, the learned Majority’s disagreement with FWH

Development, LLC (“FWH”) is premised upon a faulty assumption that FWH is

arguing something that it is not. FWH never suggests, much less “insist[s]”

as the Majority claims, that Tedesco could not recover CASPA damages

because it did not complete the entirety of its contract.1 See Majority Opinion

---

1 Likewise, FWH explicitly did not rely upon either 73 P.S. § 506 or the Prompt

Pay Act to shield itself from liability, but rather as a point of comparison in
interpreting the meaning of performance within the relevant provisions of
CASPA. Compare Majority Opinion at 19 (discussing why FWH is not shielded
by § 506) with FWH’s substituted brief at 12 n.3 (noting that “[§] 506 has no
applicability here”); compare Majority Opinion at 19 n.6 (“Similarly, we reject
FWH’s reliance on [62 P.S. §] 3394”) with FWH’s substituted brief at 13
(explaining that “[a]lthough no Court has considered the exact question of
whether a contractor or subcontractor must first perform before the remedial
protections of CASPA apply, this Court has addressed similar language in the
(Footnote Continued Next Page)
J-E01002-25

at 8 (stating that FWH’s interpretation “assumes” that the General Assembly

meant to define performance as “performance of physical work and completion

of the construction project” (cleaned up)); id. at 12 (“Nothing in the statute

or the appropriate, remedial definition from Black’s Law Dictionary requires

the completion of all physical work to constitute ‘performance,’ as FWH

insists.” (cleaned up)).

Rather, FWH merely states the obvious: “Tedesco did not seek as

damages payment for work performed; it sought anticipated profits. These

damages fall well outside the ambit of the clear and unambiguous language

limiting CASPA’s reach to the wrongful refusal to pay for work actually

performed and satisfactorily completed.” FWH’s substituted brief at 15

(citation omitted, emphasis in original). In my view, the Majority’s mistaken

reading of FWH’s arguments and its understandable sympathy for Tedesco has

led it to misconstrue both the plain language and the purpose of CASPA to

award Tedesco additional damages to which it was simply not entitled. Since

I would vacate the trial court’s molded verdict to add CASPA damages, I

respectfully dissent.

Were I writing for the Majority, I would begin with FWH’s sole claim

before this Court: “Whether a contractor that has been paid for all work

performed under a construction contract is entitled to recover interest and

attorneys’ fees under [CASPA].” FWH’s substituted brief at 4. As this question

---

Prompt Pay Act,” and therefore utilized those similarities in support of its
interpretation of the pertinent CASPA language).

-2-
J-E01002-25

requires us to interpret a statute, the following pertinent legal tenets guide

our analysis:

Generally, the plain language of the statute “provides the best
indication of legislative intent.” Miller v. Cnty. of Centre, 173
A.3d 1162, 1168 (Pa. 2017) (citing 1 Pa.C.S. § 1921(b)). If the
statutory language is clear and unambiguous in setting forth the
intent of the General Assembly, then “we cannot disregard the
letter of the statute under the pretext of pursuing its spirit.”
Fletcher v. Pa. Prop. & Cas. Ins. Guar. Ass'n, 985 A.2d 678,
684 (Pa. 2009) (citing 1 Pa.C.S. § 1921(b)). In this vein, “we
should not insert words into a statute that are plainly not there.”
Frazier v. Workers’ Comp. Appeal Bd. (Bayada Nurses,
Inc.), 52 A.3d 241, 245 (Pa. 2012).

Commonwealth v. Lehman, 311 A.3d 1034, 1044 (Pa. 2024) (footnote

omitted). Further:

A statute is ambiguous when it is susceptible to . . . at least two
reasonable interpretations. While we must consider the statutory
language in its full context before we assess ambiguity, we must
not overlabor to detect or manufacture ambiguity where the
language reveals none. We strive to give effect to each word.

Greenwood Gaming & Entm’t, Inc. v. Dep't of Revenue, 306 A.3d 319,

329 (Pa. 2023) (cleaned up).

Next, I would examine the words of the statute itself. Section 504

states: “Performance by a contractor or a subcontractor in accordance with

the provisions of a contract shall entitle the contractor or subcontractor to

payment from the party with whom the contractor or subcontractor has

contracted.” 73 P.S. § 504. Payment for such performance is required as

follows:

(a) Construction contract.--The owner shall pay the contractor
strictly in accordance with terms of the construction contract.

-3-
J-E01002-25

(b) Absence of payment term.--In the absence of a
construction contract or in the event that the construction contract
does not contain a term governing the terms of payment, the
contractor shall be entitled to invoice the owner for progress
payments at the end of the billing period. The contractor shall be
entitled to submit a final invoice for payment in full upon
completion of the agreed-upon work.

(c) Time for payment.--Except as otherwise agreed by the
parties, payment of interim and final invoices shall be due from
the owner 20 days after the end of a billing period or 20 days after
delivery of the invoice, whichever is later.

(d) Interest.--Except as otherwise agreed by the parties, if any
progress or final payment to a contractor is not paid within seven
days of the due date established in subsection (c), the owner shall
pay the contractor, beginning on the eighth day, interest at the
rate of 1% per month or fraction of a month on the balance that
is at the time due and owing.

(e) Suspension of performance.--

(1) If payment is not received by a contractor in accordance
with this section, the contractor shall have the right to
suspend performance of any work, without penalty, until
payment is received according to the terms of the
construction contract. Any procedure in a construction
contract that exceeds the procedure in paragraph (2) shall
be unenforceable.

(2) Suspension of performance in a construction contract
may occur in accordance with paragraph (1) or if:

(i) payment has not been made to the contractor in
accordance with the schedule established under
subsection (c);

(ii) at least 30 calendar days have passed since the
end of the billing period for which payment has not
been received according to the terms of the
construction contract. The contractor shall provide
written notice to the owner or the owner’s authorized

-4-
J-E01002-25

agent, via electronic mail or postal service, stating
that payment has not been made; and

(iii) at least 30 calendar days have passed since the
written notice in subparagraph (ii) has been sent. The
contractor shall provide at least 10 calendar days’
written notice, via certified mail, of the contractor’s
intent to suspend performance to the owner or the
owner’s authorized agent.

73 P.S. § 505.

Lastly, § 512 outlines the additional damages available for CASPA

violations:

(a) Penalty for failure to comply with act.--

(1) If arbitration or litigation is commenced to recover
payment due under this act and it is determined that an
owner, contractor or subcontractor has failed to comply with
the payment terms of this act, the arbitrator or court shall
award, in addition to all other damages due, a penalty equal
to 1% per month of the amount that was wrongfully
withheld.

(2) An amount shall not be deemed to have been wrongfully
withheld if all of the following apply:

(i) The amount bears a reasonable relation to the
value of any claim held in good faith by the owner,
contractor or subcontractor against whom the
contractor or subcontractor is seeking to recover
payment.

(ii) The claim holder complies with [§ 50]6 or [5]11.

(b) Award of attorney fee and expenses.--Notwithstanding
any agreement to the contrary, the substantially prevailing party
in any proceeding to recover any payment under this act shall be
awarded a reasonable attorney fee in an amount to be determined
by the court or arbitrator, together with expenses.

73 P.S. § 512 (footnote omitted).

-5-
J-E01002-25

FWH’s argument is simple:

This appeal raises a straightforward issue of statutory
construction. CASPA plainly states that its enhanced remedies are
available when payment is not made for work that is completed
and properly invoiced in accordance with the terms of the parties’
agreement. CASPA does not apply to any breach of a construction
contract, and Tedesco’s claim for wrongful termination resulting
in loss of anticipated profit on work not performed falls far outside
of CASPA’s remedial umbrella. It is clear from the record below
that Tedesco is not entitled to CASPA damages because it was
paid in full for all work it actually performed under the contract.

FWH’s substituted brief at 11.

I wholly agree with this interpretation. Although “performance” within

§ 504 is not defined, “the lack of statutory definitions does not preclude a

plain-language analysis[.]” Greenwood Gaming, 306 A.3d at 331. Despite

various dictionaries providing numerous definitions for the term, as detailed

by the Majority, I simply cannot agree that “performance,” as used in that

section of CASPA, is ambiguous. To me, the foregoing statutory language

conveys a clear and definite meaning: performance, in full or in part, is the

sine qua non that entitles the contractor to payment, and the economic

sanctions apply when payment is not forthcoming. Stated differently, CASPA

requires payment for work, services, and materials provided and billed on

eligible construction projects, and affords penalty interest, fees, and costs to

a contractor or subcontractor if those payments are withheld after being

requested.

Since I do not find the term ambiguous as written in the text of the

statute, I would not proceed to the rules of statutory construction to ascertain

-6-
J-E01002-25

the legislature’s intent. Nevertheless, because the Majority looks beyond the

plain language of § 504 to determine the meaning of “performance,” I will

address its conclusion as I also find that analysis unpersuasive. The Majority

deems “performance” in § 504 to include the Black’s Law Dictionary definition

for “part performance[:] accomplishment of some but not all of one’s

contractual obligations.” Majority Opinion at 12 (cleaned up). While I do not

disagree that CASPA’s usage of “performance” includes part performance, I

take issue with how the Majority applies that definition to the case at hand.

Specifically, the Majority concludes that having fulfilled some of its obligations,

Tedesco had performed and was therefore entitled to CASPA damages for the

amount of its lost profits and overhead. In so holding, the Majority intimates

that FWH’s alleged interpretation “requir[ing] the completion of all physical

work” is “unreasonable” because it would prevent a contractor from collecting

CASPA damages for unpaid performance if the owner stopped the contractor

from finishing the entire project. See Majority Opinion at 12, 13 n.5.

Respectfully, that premise is not founded upon a clear reading of the

statutory language or FWH’s actual argument. As indicated above, FWH never

argues that a contract must be fully completed before CASPA damages can be

sought. Even if it did, I believe it is clear from the statutory language that if

a contractor performs some part of the contract, seeks payment, and payment

is withheld, the contractor could seek CASPA damages for that non-payment.

The contractor would not be able to collect CASPA damages on the entire

contract amount if it had not yet completed that performance, but nothing

-7-
J-E01002-25

prevents the contractor from seeking incremental payment and CASPA

damages for any non-payment.

To illustrate, I point to the facts from the instant case. Tedesco acquired

signal poles for the project and submitted Payment Application No. 1 to FWH

seeking $56,873.84 compensation. FWH paid that invoice. Had FWH failed

to pay Tedesco for that performance and Tedesco sued for recompense,

CASPA would have provided an avenue for Tedesco to seek additional

damages. Indeed, I do not believe there is any question that Tedesco would

be eligible to pursue CASPA damages for non-payment of work that it had

performed and billed FWH.

Yet, that is not the posture of this case. Tedesco’s lawsuit did not

concern failure to satisfy a payment application for work performed pursuant

to the contract prior to the breach. Rather, it involved a dispute over the

breadth of damages for FWH’s wrongful termination of the contract. I am not

persuaded by Tedesco’s attempt to disguise its request for damages as

performance by submitting a payment application for lost profits and overhead

in order to be eligible for CASPA damages.

By way of background, Tedesco sued FWH on April 23, 2019 for breach

of contract, alleging that it “ha[d] been damaged in the amount of

$383,776.17, representing its lost overhead and profit on the Project, plus

interest, penalty interest, attorneys’ fees and other damages relating to the

diminution of its business.” Complaint, 4/23/19, at ¶ 21. FWH filed several

preliminary objections, one of which was in the nature of a demurrer as to the

-8-
J-E01002-25

prayer for CASPA damages because Tedesco did not plead that FWH had failed

to make a progress payment for work performed under the contract, only that

it incurred damages relating to lost profits. See Preliminary Objections,

6/4/19, at 8-9. In response, Tedesco confirmed that it was seeking lost profits

based upon FWH’s breach, but that CASPA applied because FWH breached the

contract and refused to pay Tedesco’s lost profits allegedly due under the

contract as a result of the breach. See Plaintiff’s Brief in Opposition to

Preliminary Objections, 7/17/19, at 8. The trial court overruled FWH’s other

preliminary objections, but sustained the one regarding CASPA damages with

leave to amend.

Tedesco thereafter submitted an amended complaint. Therein, it

referenced and attached, for the first time, Payment Application No. 2, which

sought payment in the amount of $383,776.17. Tedesco explained that this

amount “represent[ed] the overhead and profit it was due under the

[c]ontract.” Amended Complaint, 11/11/19, at 5. Notably, Payment

Application No. 2 was submitted one day after Tedesco filed the original

complaint. See Amended Complaint, 11/11/19, at Exhibit 4 (Payment

Application No. 2, 4/24/19).2

Payment Application No. 2, which was submitted after the initiation of

this suit and for the exact same amount of Tedesco’s ad damnum clause,

unequivocally did not itemize any of the uncompensated work purportedly

---

2 The Majority incorrectly recounts that Payment Application No. 2 was issued

“[o]n the same date” as the original complaint. See Majority Opinion at 4.

-9-
J-E01002-25

completed by Tedesco prior to FWH’s breach, such as hiring an electrical

subcontractor, submitting shop drawings, attending meetings, or obtaining

insurance, which Tedesco now claims for the first time on appeal. Pursuant

to the terms of the contract, Tedesco should have sought payment for those

activities from FWH through a payment application, but it did not. If it had,

and FWH refused to pay, then concededly Tedesco could have invoked CASPA.

Viewed properly, though, Payment Application No. 2 only pursued

payment for Tedesco’s presumed lost profits and overhead, which it had

already demanded by filing a complaint against FWH for breach of contract.

Throughout these proceedings, Tedesco has consistently been seeking

payment for lost overhead and profits resulting from FWH’s breach of the

contract, not compensation for any specific work it had performed under the

contract and was not paid as requested. While the latter implicates CASPA,

the former unambiguously does not.

Insofar as the Majority laments the prospect of Tedesco losing the

additional CASPA damages because FWH was “stringing Tedesco along for four

years[,]” I note that my interpretation of CASPA does not mean Tedesco walks

away empty-handed.3 Indeed, this conduct was the reason that the jury

awarded Tedesco $401,046 in damages. Moreover, Tedesco may be entitled

to six percent interest pursuant to the terms of the contract and post-

---

3 While FWH decided when the project would commence, Tedesco chose to
wait four years for it to do so.

• 10 - J-E01002-25

judgment interest at the legal rate as determined by the Pennsylvania Judicial

Code.4 Nevertheless, it is clear to me that Tedesco is not eligible for the

supplementary awards of augmented interest (12%), counsel fees, and

litigation costs pursuant to the provisions outlined in CASPA because FWH did

not refuse to pay Tedesco for any invoiced performance.

The Majority assails any interpretation that does not allow for Tedesco

to recover CASPA damages in the following manner:

CASPA’s ordinary interest, penalty interest, and attorneys’ fees
are particularly appropriate here to offset the losses that FWH
caused Tedesco from both this Project and other potential paving
jobs that Tedesco could not schedule while it waited on FWH.

Otherwise, there is no law to discourage unscrupulous
owners, such as FWH, from anticipatorily repudiating construction
contracts and subsequently litigating the contractor (and
particularly a small, solo contractor) to death. While an owner is
entitled to its day in court as well, we see no reason why it should
be allowed to repudiate a contract as flagrantly as FWH has and
then not reimburse the contractor’s attorneys’ fees and interest
under . . . CASPA after the owner loses before a jury.

Majority Opinion at 17.

---

4 Specifically, 42 Pa.C.S. § 8101 sets forth:“Except as otherwise provided by
another statute, a judgment for a specific sum of money shall bear interest at
the lawful rate from the date of the verdict or award, or from the date of the
judgment, if the judgment is not entered upon a verdict or award.” As to
attorneys’ fees, Pennsylvania generally applies the American Rule, which
provides “that a litigant cannot recover counsel fees from an adverse party
unless there is express statutory authorization, a clear agreement of the
parties[,] or some other established exception.” Clean Air Council v. Dep’t
of Envtl. Prot., 289 A.3d 928, 934 n.19 (Pa. 2023) (quoting Mosaica
Academy Charter Sch. v. Dep't of Educ., 813 A.2d 813, 822 (Pa. 2002)).
CASPA is an exception to this rule.

• 11 - J-E01002-25

Even so, that is not the purpose of CASPA, which was outlined by a

three-judge panel of this Court thusly:

CASPA [is] a comprehensive statute enacted in 1994 to cure
abuses within the building industry involving payments due from
owners to contractors, contractors to subcontractors, and
subcontractors to other subcontractors. The underlying purpose
of CASPA is to protect contractors and subcontractors and to
encourage fair dealing among parties to a construction contract.
The statute provides rules and deadlines to ensure prompt
payments, to discourage unreasonable withholding of payments,
and to address the matter of progress payments and retainages.
Under circumstances prescribed in the statute, interest, penalty,
attorney fees and litigation expenses may be imposed on an
owner, contractor or subcontractor who fails to make payment to
a contractor or subcontractor in compliance with the statute.

Zimmerman v. Harrisburg Fudd I, L.P., 984 A.2d 497, 500–01 (Pa.Super.

2009) (cleaned up).5 Certainly, these sophisticated parties could have

negotiated for attorneys’ fees if one of the parties breached. Their lack of

foresight in that regard cannot form a basis for this Court to extend CASPA

beyond its limits.

For similar reasons, I cannot concur with the Majority’s declaration that

FWH was obligated to pay Tedesco its lost profits and overhead, in accordance

with Article 5.2 of the contract, because Tedesco titled Payment Application

No. 2 a final payment. See Majority Opinion at 19-20. Article 5.2 provides in

full: “Final Payment. Upon final completion and acceptance of the Work in

accordance with paragraph 14.13 of the General Conditions, OWNER shall pay

---

5 The Majority also relies upon this interpretation of CASPA’s purpose. See
Majority Opinion at 7.

• 12 - J-E01002-25

the remainder of the Contract Price as recommended by ENGINEER as

provided in said paragraph 14.13.” Amended Complaint, 11/11/19, at Exhibit

2 (Agreement, 5/19/15, at Art. 5.2). The referenced section then provides:

14.13 If, on the basis of ENGINEER’s observation of the Work
during construction and final inspection, and ENGINEER’s review
of the final Application for Payment and accompanying
documentation as required by the Contract Documents,
ENGINEER is satisfied that the Work has been completed and
CONTRACTOR’s other obligations under the Contract Documents
have been fulfilled, ENGINEER will, within ten days after receipt of
the final Application for Payment, indicate in writing ENGINEER’s
recommendation of payment and present the Application to
OWNER for payment. At the same time ENGINEER will also give
written notice to OWNER and CONTRACTOR that the Work is
acceptable subject to the provisions of paragraph 14.15.
Otherwise, ENGINEER will return the Application to CONTRACTOR,
indicating in writing the reasons for refusing to recommend final
payment, in which case CONTRACTOR shall make the necessary
corrections and resubmit the Application. Thirty days after the
presentation to OWNER of the Application and accompanying
documentation, in appropriate form and substance and with
ENGINEER’s recommendation and notice of acceptability, the
amount recommended by ENGINEER will become due and will be
paid by OWNER to CONTRACTOR.

Preliminary Objections, 6/4/19, at Exhibit 1 (General Conditions, Art. 14.13).

Plainly, no such final inspection occurred here, nor did an engineer recommend

that FWH pay the remainder of the contract price. Simply naming Payment

Application No. 2 a “final payment” does not bring Article 5.2 into play.

It is plain to me that the Majority’s conclusion that “CASPA applies

because (1) FWH anticipatorily repudiated the construction contract, (2)

Tedesco demanded final payment for its lost overhead and profits, and (3)

FWH refused to pay the demanded sum[,]” completely misapprehends the

• 13 - J-E01002-25

parameters of CASPA. See Majority Opinion at 20. The litigation sub judice

does not involve the non-payment of an invoice for performance under a

construction contract. Therefore, CASPA damages do not apply to the award

for lost profits and overhead resulting from FWH’s anticipatory repudiation.

Based on the foregoing, I would hold that the trial court erred in molding

the verdict to add CASPA damages and would instead vacate that portion of

the award.

Judges King and Beck join this Dissenting Opinion.

Judge Sullivan concurs in the result.

• 14 -