HomeMy WebLinkAbout98-245 civilDemetrios S. Touloumes, Connie :IN THE COURT OF COMMON PLEAS OF
L. Touloumes and 31 S. Baltimore, :CUMBERLAND COUNTY, PENNSYLVANIA
Inc., d/b/a Holly Inn,
Plaintiffs
v. No. 98-245 Civil
E.S.C., Inc.
Defendant CIVIL ACTION
DECISION OF THE COURT
AND NOW, June 28, 2000, after consideration of the evidence presented
at trial, the briefs submitted by the parties, the facts of record, and the applicable
law, we find that the defendant breached its Contract with plaintiffs for the
installation of a roof, and award the plaintiffs the sum of $14,397.00 to re-roof the
lower area with a rubber roof. We find that defendant did not breach either its
express or implied warranties with plaintiff. We also find that the defendant was
negligent in installing the roof, and award plaintiffs the sum of $18,976.78 as
compensation for repairs already performed, and the sum of $2200.00 to repair
the ductwork damaged by the water infiltration.
~ p.j.
Douglas B. Marcello Thomas E. Brenner
305 North Front Street Post Office Box 1268
Post Office Box 999 Harrisburg, PA 17108-1268
Harrisburg, PA 17108-0999 Attorney for Defendant
Attorney for Plaintiffs
Demetrios S. Touloumes, Connie :IN THE COURT OF COMMON PLEAS OF
L. Touloumes and 31 S. Baltimore, :CUMBERLAND COUNTY, PENNSYLVANIA
Inc., d/b/a Holly Inn,
Plaintiffs
v. No. 98-245 Civil
E.S.C., Inc.
Defendant CIVIL ACTION
OPINION
This case involves a construction contract between the plaintiffs and
E.S.C., Inc., the defendant, a business that installs, repairs, and replaces
industrial and commercial roofing. Plaintiffs bring .an action for breach of
contract, breach of warranty, and negligence. A non-jury trial on the matter has
been held.
Findings of Fact
Plaintiffs Demetrios and Connie Touloumes are owners of the property
known as the Holly Inn. James Sniscak, owner of E.S.C., inspected the roof of
the Holly Inn in 1993. Sniscak identified numerous problems with the roof,
including inadequate pitch that caused water to pond on the roof's surface,
severe blistering throughout the roof, leaks over the room entrances and kitchen
areas, and a deck that might need to be replaced. (Plaintiffs' Ex. 1). A contract,
as drafted by defendant, was entered into for the repair of the roof over the motel
units. In the writing, the defendant and plaintiffs agreed that defendant would
perform the following to fix the roof: (1) remove the entire roof substrate down to
the wooden deck; (2) install tapered insulation starting at the center to allow
sufficient slope; (3) apply a waterproof mastic at a rate of 4-5 gallons per square;
(4) embed polyester with 23" overlap; (5) repeat steps 3 and 4; (6) allow the
system to cure for 30-60 days and apply aluminum reflective coating to reduce
U.V. penetration; (7) install gutters on both sides of the motel roof; and (8)
provide a warranty of ten years labor and material with no proration. (Plaintiffs'
Exhibit 2). Defendant performed the work between May and August of 1994 for a
total cost of $29,855.00. Pursuant to the contract, defendant provided an
express warranty entitled "Waterproof Guarantee" in which it agreed to pay all
costs of repairs to the roof and resulting water damage resulting from faults or
defects in the material or workmanship of the system. Defendant also warranted
to plaintiffs that it was responsible for any leaks or problems caused by the
roofing system, that the system was warranted for ten years labor and material
with no proration, that defendant eliminated most of the drainage problems and
all of the leaking problems, and that defendant would stand by its work and
warranty 100%. (Plaintiffs' Exhibit 5).
After the new roof was installed, water continued to pond on the roof.
Subsequently, on January 20, 1996, after a large snowstorm, the plaintiffs
noticed that water had begun to infiltrate the motel rooms, office, and banquet
areas. Upon perceiving a problem, plaintiffs called defendant. Les Jumper, an
employee of defendant, told the plaintiffs that there was nothing he could do
while there was snow and ice on the roof. Subsequently, plaintiffs made efforts
2
to remove the snow themselves, and admitted to puncturing the roof in several
places in the process.
Evidence presented at trial established that although plaintiffs may have
punctured the roof while removing snow and ice, the water damage occurred
prior to plaintiffs' snow and ice removal efforts. Plaintiffs presented Miller, a
structural engineer and roofing expert, who examined the roof on February 13
and March 11 of 1996. Miller, who examined two test cuts of the roof, testified
that there was moderate to severe water damage in the area covered by the new
roof. He testified that the vapor barrier was insufficient, that the joints should
have been staggered, and that these conditions resulted in condensation which
caused premature deterioration of the roof from the bottom up. However, Les
Jumper, a supervisor of E.S.C., testified that defendant completed repairs to the
roof in February. Since that time, plaintiffs have not called defendant back to
make further repairs. Defendant presented Eugene Aufiero, an expert in building
and a structural engineer, who testified that he visited the Holly Inn in March of
1999 and saw no ponding of water or blistering in the roof. He stated that the
roof remains serviceable, and does not need to be replaced.
As a result of the water infiltration, the banquet room, motel rooms, office,
and hallway were damaged. Costs included water damage to the ceilings, walls,
carpet, insulation, drywall, door frames and other woodwork, and duct work.
However, plaintiffs undertook some repairs in order to reopen the business,
including re-insulating and installing drywall, painting, carpeting, and other
3
repairs, totaling $18,976.78. As a result, the motel rooms and banquet room
were reopened in the summer of 1996.
Discussion
The issues presently before us are whether defendant breached its
contract with plaintiff, whether defendant breached the express or implied
warranties, and whether defendant was negligent in fulfilling its duty to install the
roof in a workmanlike manner.
Breach of Contract Claim
Plaintiffs first claim that defendant breachedits contract by failing to install
the roof in a workmanlike manner. The contract states that "all work is
guaranteed to be as specified...to be completed in a workmanlike manner."
(Plaintiff's Exhibit 2). At trial, plaintiffs presented the testimony of William S.
Miller, a structural engineer, who examined the roof on February 13 and March
11 of 1996. Although there was no structural damage, Miller identified several
problems with the roof. Through a series of spot elevations, Miller determined
that the total roof slope averaged three inches over the 28-foot distance from the
ridge to eave or slightly less than 1/8 inch per foot, and that several adjacent spot
elevations had little or no practical difference in elevation. Miller also observed
that the aluminum UV coating material was worn, deteriorated, and missing from
the roof surface, which had small "alligator" type cracking throughout both the
roofing surface and remaining UV coating. Miller determined that the insufficient
slope of the roof allowed standing snow, ice, and water to remain on the roof.
4
Miller also performed two test cuts to determine the makeup of the roofing
system and the reasons for the water infiltration. Miller determined that there
was no base course or vapor barrier below the bottom layer of insulation. Miller
also found that the roofing material was humped upward and loosened from the
tapered insulation, which was anchored with metal plate screw anchors in the
joint corners. Miller found that the two-ply roofing material was seriously cracked
on each side of the taped insulation joint, and the duct tape had loosened from
the tapered insulation. Finally, Miller inspected the roof edge perimeter, and
found that severe water seepage had caused damage to the plywood soffits.
The drip edge was a Iow quality with no end lap splice, and water infiltration and
seepage was ongoing as a result of the standing roof water at the location of the
drip edge joints.
Miller concluded that the water damage to the Inn was due to a
combination of the build-up of snow and ice during January of 1996, the
presence of standing water, and the premature failure and deterioration of the
one-and-one-half-year-old roofing system. Miller noted that the worst of the
leaking occurred in the totally re-roofed areas above the motel and office areas.
Miller testified that standard installation procedure calls for the staggering of
insulation joints between the various courses, the installation of a vapor barrier
over the roof deck, or at least the taping of the lower level joints to minimize
vapor transmission. Miller concluded that the presence of condensation and
moisture below the roofing plies caused deterioration, failure, and cracking of the
5
roofing, and it lead to loosening of the taping over the top course of insulation.
Miller further testified that the lack of sufficient overall slope also allowed water to
pond, and it contributed to both the premature deterioration of the roofing
material and UV coating, and the extent of the interior water infiltration damage.
Given Miller's expertise as ,well as his extensive investigation of the roof
composition and structure, we find Miller's testimony credible. Defendant
contracted to "install tapered insulation ... to allow sufficient slope," specifically to
"address the ponding issue." (Plaintiff's Ex. 2, Plaintiff's Ex. 1). Defendant also
agreed to perform the work "in a workmanlike manner according to standard
practices." (Plaintiff's Ex. 2). Miller testified that standard installation procedure
calls for the staggering of insulation joints between the various courses, the
installation of a vapor barrier over the roof deck, or at least the taping of the lower
level joints to minimize vapor transmission. We find that defendant failed to
install the roof according to standard practices, that defendant did not install a
sufficient slope, and that defendant improperly installed the roof drip edges.
Accordingly, we find that defendant breached its contract with plaintiff to install a
roof according to the contract specifications in a workmanlike manner according
to standard practices.
Pennsylvania case law supports this conclusion. In a case where
purchasers sued home builders under a breach of contract action, claiming that a
roof was improperly installed, evidence that the roof was installed contrary to the
manufacturer's specifications was sufficient to establish that the purchasers
6
suffered damages. See Barrack v. Kolea, 438 Pa. Super. 11, 22, 651 A.2d 149,
155 (1994). Because the purchasers were damaged by not receiving what they
had contracted for - a roof of superior quality -- the proper measure of damages
was the loss of the benefit of the bargain. Id.
Plaintiff's second claim is that defendant breached both express and
implied warranties relating to the roofing contract. Defendant provided an
express warranty to plaintiffs entitled the "Waterproof Guarantee." (Plaintiff's Ex.
5). This guarantee provided:
During the guarantee period (10 years) ESC Roofing will arrange to
pay all costs of repairs to the roof resulting from water damage
resulting from fault or defects in the Material or Workmanship of the
system. The Owner shall notify ESC no later than 30 days upon
discovery of such leaks. ESC will inspect the roof, and, if the cause
is within the coverage of this Guarantee, arrange for the repair of the
roof at no cost to the Owner.
(Plaintiff's Ex. 5). Defendant had expressly warranted to plaintiffs that defendant
would inspect and repair the roof upon evidence of leaking. There is no evidence
or allegation that defendant did otherwise. On several occasions, plaintiffs called
upon the defendant to repair the roof, which the defendant did. Although
plaintiffs imply that defendant breached its warranty by not fixing the roof
immediately after the January 20 leakage occurred, there is no language is the
warranty stating that the defendant must repair within a certain time period.
Therefore, we find that defendant did not breach its express warranty to plaintiffs.
7
Plaintiffs also claim that defendant is liable under the theory of breach of
the implied warranties of merchantability and fitness for a particular purpose.
However, the implied warranties claimed by plaintiffs arise by operation of law
under the Uniform Commercial Code, 13 Pa.C.S.A. §§ 2314, 2315, and serve to
protect buyers from loss where goods purchased are below commercial
standards or unfit for the buyer's purpose. See Turney Media Fuel, Inc. v. Toll
Bros, Inc. --Pa. Super.--, 725 A.2d 836 (1999). The protections of the warranties
available under Article 2 of the UCC apply to a sale of goods. However, a
transaction involving predominately the rendition of. services does not fall under
the protection of Article 2. See Id., 725 A.2d at 840 (stating that the rendition of
HVAC installation services did not fall under the UCC, even though the sale of
tangible goods was involved in the performance of the contract). Therefore, the
claims of implied warranty of merchantability and fitness for a particular purpose
are unavailable to the plaintiffs in this instance.
Finally, plaintiffs claim that defendant was negligent in its performance of
the roofing contract. As a general rule, there is implied in every contract for work
or services a duty to perform it skillfully, carefully, diligently, and in a workmanlike
manner. 17A Am. Jur. 2d, Contracts §627 (1991). With respect to the skill
required of a person who is to render services, it is a well-settled rule that the
standard of comparison is that degree of skill, efficiency, and knowledge which is
possessed by those of ordinary skill, competency, and standing in the particular
trade or business for which he is employed. Id., at §628. Miller, a structural
8
engineer and roofing expert, testified that the standard practice for installing a
roof consists of staggering the insulation joints between the various courses, and
installing a vapor barrier over the roof deck, or at least taping the lower level
joints to minimize vapor transmission. We find that the defendant did not
conform to this standard in performing its contracted-for duties. Further, the
defendant did not install a sufficient slope and improperly installed the roof drip
edges.
Miller stated that moist air reached the underside of the roof as a result of
the improper alignment of the joints in the two. insulation courses and the
absence of a vapor barrier. According to Miller, because moisture was allowed
to reach the underside of the roof deck, the roof "humped" upward and loosened
from the top insulation. Miller concluded that the condensation on the underside
of the roof surface caused the water infiltration into the building. In light of
Miller's credible testimony, we find that defendant breached its duty to install the
roof in a workmanlike manner.
Damages
Pennsylvania courts have generally allowed damages for incomplete or
defective performance of a building contract to be measured by the cost of
completing the work or correcting the defects by another contractor. Gloviak v.
Tucci Const. Co., Inc., 415 Pa. Super. 123, 128-29, 608 A.2d 557, 559-60
(1992). It is only where the cost of remedying the defects is clearly
disproportionate to the probable loss in value to the injured party that damages
9
will be measured by the difference between the market price that the property
would have had without the defect and the market price of the property with the
defects. Id., at 129, 559-60, accord, Gadbois v. Leb-Co Builders, Inc., 458
A.2d 555, 312 Pa. Super. 144 (1983). Further, once a homeowner has presented
evidence as to the cost of remedying the defects, the burden is on the contractor
to challenge this evidence. Fetzer v. Vishneski, 399 Pa. Super. 218, 224, 582
A.2d 23, 26 (1990).
In this case, defendant has made no effort to rebut plaintiff's evidence of
repair or replacement cost by presenting evidence as to diminution in market
value. See Fetzer, 399 Pa. Super. at 225, 226, 582 A.2d at 27. Therefore, we
find that plaintiff's estimate of $14,397.00 to install a rubber roof in order to
prevent future leaking is an appropriate award of damages for the breach of the
roofing contract.
Plaintiffs also claim that defendant is liable to them for the costs to repair
the damage caused by the leaking roof, including repairs to the office, motel
rooms, banquet area and hallway. Plaintiffs introduced an exhibit prepared by
Mike Phillips of W.S. Miller and Sons, Inc., estimating that total repairs to the
office, motel rooms, banquet area and hallway would cost $84,592. (Plaintiff's
Ex. 19). However, plaintiffs presented evidence that they have already
performed substantial repairs to the motel rooms, banquet and kitchen areas.
Plaintiffs produced receipts for $18,976.78 that was spent on new drywall,
carpets, and painting in the banquet area, motel rooms, hallway, and office area.
10
Many of the costs included in the Phillips estimate are for the same repairs,
including drywall, painting, and carpeting. Additionally, the receipts introduced
into evidence indicate that between June of 1996 and September of 1997, most,
if not all of the damaged areas were repainted. (Plaintiff's Ex. 21). New carpet
was installed in six rooms, a bathroom, and various other locations. (Plaintiff's
Ex. 22). A multitude of other receipts were submitted as evidence of repairs
performed to these areas. These receipts indicate that the area was caulked,
repainted, electrical outlets were replaced, curtains and voile panels were
replaced, rugs were steam cleaned, and various other-improvement items were
purchased. (Plaintiff's Ex. 23). Additionally, Sniscak and Aufiero testified at trial
that there was no evidence of water leaks on the walls or ceilings of the motel
rooms or banquet room as of March of 1999. Further, Phillips admitted that his
estimate was prepared in early March of 1996, and that he had not been back to
the Inn to inspect the repair work performed. Therefore, we award plaintiff the
sum already spent on repairs, totaling $18,976.78.
Finally, plaintiffs claim that the water infiltration caused damage to the
ductwork of the motel area. Plaintiffs introduced an estimate showing that the
ductwork can be replaced at a cost of $2200.00. (Plaintiff's Ex. 30). We agree
that the water damage to the ductwork was proximately caused by defendant and
therefore award the amount of $2,200.00 to plaintiff as a reasonable cost of
replacing the ductwork.
11