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Home My WebLink About97-5656 civilGIANT FOOD STORES, INC., : IN-THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : V, : : NO. 97-5656 CIVIL R.S. MOWERY & SONS, INC., : UNITED DOMINION INDUSTRIES, : INC. d/b/a VARCO-PRUDEN : BUILDINGS, V.P. BUILDINGS, INC., : and ST. ONGE, RUFF AND : ASSOCIATES, INC., : Defendants : IN RE: DEFENDANT ST. ONGE, RUFF AND ASSOCIATES, INC.'S PRELIM INARY OBJECTIONS Before HOFFER, P.J., OLER, J. and GUIDO, J. ORDER OF COURT AND NOW, June 8, 1999, pursuant to the opinion filed on this date, Defendant's Preliminary Objections are granted in part and overruled in part. By the Court, Richard F. Andracki, Esquire Jones, Gregg, Creehan & Gerace, LLP 3000 Grant Building Pittsburgh, PA 15219-2303 For the Plaintiff Bruce D. Lombardo, Esquire Powell, Trachtman, Logan, Carrie, Bowman & Lombardo 367 South Gulph Road King of Prussia, PA 19406 For Defendant St. Onge, Ruff & Associates Patrick J. Loftus, Esquire Duane, Morris & Heckscher, LLP One Liberty Place Philadelphia, PA 19103-7396 For Defendant R. S. Mowery & Sons, Inc. Louis Bell, Esquire Marshall, Dennehey, Warner, Coleman & Goggin 1845 Walnut Street Philadelphia, PA 19103 For Defendant United Dominion Industries, Inc. d/b/a Varco-Pruden Buildings, and V.P. Buildings, Inc. GIANT FOOD STORES, INC., : IN THE COURT OF COMMON PLEAS OF Plaintiff :CUMBERLAND COUNTY, PENNSYLVANIA : V, : : NO. 97-5656 CIVIL R.S. MOWERY & SONS, INC., : UNITED DOMINION INDUSTRIES, : INC. d/b/a VARCO-PRUDEN : BUILDINGS, V.P. BUILDINGS, INC., : and ST. ONGE, RUFF AND : ASSOCIATES, INC., Defendants : IN RE: DEFENDANT ST. ONGE, RUFF AND ASSOCIATES, INC.'S PRELIMINARY OBJECTIONS Before HOFFER, P.J., OLER, J. and GUIDO, J. OPINION HOFFER, P.J.: In this opinion, the Court shall address defendant St. Onge, Ruff and Associates, Inc.'s preliminary objections to plaintiff Giant Food Stores, Inc.'s complaint. The allegations in this case are as follows: plaintiff contracted with defendant for architectural and engineering advice on construction of a distribution center in Carlisle, Pennsylvania. Construction of the distribution center was done in four stages, over fourteen years. Defendant consulted on each phase of the construction. The distribution center was completed in 1995. Portions of the roof collapsed under the weight of large amounts of ice and snow on January 9, 1996. Plaintiff filed a praecipe for writ of summons on October 14, 1997 and this case ensued. Plaintiff's complaint was filed September 11, 1998. Defendant filed its preliminary objections on October 7, 1998. Currently before this Court are defendant's preliminary objections to Counts VI and IX of plaintiff's complaint. Count VI alleges that defendant breached express and implied warranties related to the design and construction of the distribution center. Defendant's preliminary objections argue that plaintiff cannot state a cause of action for breach of an implied warranty and that more specific pleading is required to state a claim for breach of an express warranty. Count IX asserts a claim of recklessness against defendant. In essence, plaintiff attempts to set out a claim for punitive damages against defendant. Defendant has filed a demurrer to the claim for punitives or, in the alternative, asks for Count IX to be pled more specifically. Discussion "A preliminary objection, in the form of a demurrer, should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted." Willet v. Pennsylvania Medical Catastrophe Loss Fund, 559 Pa. 613, 619, 702 A.2d 850, 853 (1997) (citations omitted). A claimant has failed to state a claim upon which relief may be granted if, after admitting as true all well pleaded, relevant facts and any inferences fairly deduced therefrom, it is clear that there is no theory of law that could provide relief. Id. Preliminary objections may be filed on the ground that the pleading lacks specificity. Pa. R. Civ. P. 1028. "The material facts on which a cause of action or 2 defense is based shall be stated in a concise and summary form." Pa. R. Civ. P. 1019(a). To rule on an objection for lack of specificity, a court must ask whether the failure of a plaintiff to address matters more specifically renders the complaint so vague that a defendant is unable to prepare a defense. Paz v. Commonwealth of Pennsylvania, Dept. of Corrections, 135 Pa. Cmwlth. Ct. 162, 170, 580 A.2d 452, 456 (1990). Breach of Implied Warranty In arguing that plaintiff has failed to state a claim for breach of an implied warranty, defendant relies upon Bloomsburg Mills, Inc. v. Sordoni Construction Co., 401 Pa. 358, 164 A.2d 201 (1960). Defendant claims that Bloomsburg stands for the proposition that Pennsylvania does not recognize a cause of action for breach of an implied warranty against a design professional because a warranty action is one in the same with an action in negligence. Id.__~. The court in Bloomsburg addressed only the questi°n of a defendant architect's negligence; plaintiffs in the case did not raise a claim for breach of implied warranty. Id. The court did state the following: While an architect is not an absolute insurer of perfect plans, he is called upon to prepare plans and specifications which will give the structure so designed reasonable fitness for its intended purpose, and he impliedly warrants their sufficiency for that purpose. Bloomsbur§ at 361-62, 164 A.2d at 203 (citations omitted) (emphasis added). Defendant is incorrect in its assertion that Bloomsburg stands for the premise that 3 Pennsylvania does not allow a claim for breach of an implied warranty against a design professional? By statute, Pennsylvania allows an action in breach of implied warranty for structural defects for purchasers of new condominium units. 68 Pa. C. S. A. § 3411. Pennsylvania also provides a cause of action for breach of implied warranty of habitability for lessees of residential property against owners who lease dwellings unfit for human habitation. 35 P.S. § 1700-1. Residential property owners can sue builder-vendors of new homes for breach of implied warranty. See Ecksel v. Orleans Construction, Co., 360 Pa. Super. 119, 519 A.2d 1021 (1987). By logical extension of existing doctrines, it may be reasonable for a party to sue a design professional for breach of an implied warranty in the construction of a commercial building. Because it is not clear from all doubt, defendant's preliminary objection, in the form of a demurrer, to the breach of an implied warranty claim in Count VI of plaintiff's complaint is overruled. Breach of Express Warranty Defendant's second preliminary objection asks for a more specific pleading to the breach of express warranty claim in Count VI of plaintiff's complaint. t Although not binding precedent for this court's analysis, other Pennsylvania trial courts have allowed claims for breach of implied warranty to go forward. See Sports Management Group, Inc. v. Allensville Planing Mill, Inc., 16 D. & C. 3d 760 (1980); Metropolitan Edison Co. v. United Engineers and Constructors, Inc., 4 D. & C. 3d 473 (1977). 4 Plaintiff's complaint contains a clear and unequivocal allegation that defendant breached an express warranty. Plaintiff has failed to attach the writing which contains the express warranty. Plaintiff alleges that it does not have a copy of the written agreement between plaintiff and defendant but that defendant may hold the document. Plaintiff's pleading conforms to Pa. R. Civ. P. 1019(a). Defendant is on notice of the defenses necessary once the existence or non-existence of such a document is discovered. Defendant's preliminary objection is overruled. Recklessness Defendant's third preliminary objection is a demurrer to Count IX of plaintiff's complaint, a claim for recklessness. Defendant's fourth preliminary objection is pled in the alternative, asking that Count IX be pled more specifically. Count IX represents plaintiff's attempt to set forth a claim for punitive damages against defendant? Punitive damages may be awarded where a defendant's actions in causing harm to a claimant constitute outrageous conduct because of defendant's evil motive or reckless indifference. Restatement (Second) Torts § 908. See also Shelton v. Evans, 292 Pa. Super. 228, 235, 437 A.2d 18, 22 (1981). Facts to 2 Plaintiff's complaint includes counts of breach of contract and negligence. It is important to note that punitive damages are unavailable in actions based solely on breach of contract. See Johnson v. Hyundai Motor America, 698 A.2d 631,639 (Pa. Super. 1997); Thorsen v. Iron and Glass Bank, 328 Pa. Super. 135, 143, 476 A.2d 928, 932 (1984). 5 support a claim of outrageous conduct must be found in the complaint. Smith v. Brown, 283 Pa. Super. 116, 120, 423 A.2d 743, 745 (1980). Plaintiff, in the case at bar, has concluded that defendant must have acted outrageously to cause the harm suffered, collapse of the distribution center roof. No facts are of record that lead this Court to conclude that defendant's actions were willful, wanton or outrageous. Count IX of plaintiff's complaint fails to state a claim upon which relief may be granted. Therefore, defendant's third preliminary objection, in the form of a demurrer, to Count IX of plaintiff's complaint is granted? 3 Because defendant's third preliminary objection is granted, there is no need for the Court to address defendant's fourth preliminary objection requesting that Count IX be pled more specifically. 6