Loading...
HomeMy WebLinkAbout98-1046 civilDANIEL T. MOOS and : IN THE COURT OF COMMON PLEAS OF DEBORAH MOOS, his wife, · CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs · · V. ' : ROY A. WILSON and NANCY : NO. 98-1046 CIVIL TERM R. WILSON, B-H AGENCY, : STEVEN BLACK, : INDIVIDUALLY AND AS : CHIEF EXECUTIVE OFFICER, : CIVIL ACTION - LAW SECRETARY AND TREASURER : OF STEVEN BLACK HOMES, : INC. and STEVEN : BLACK HOMES, INC., : Defendants : Ve BIECHLER & TILLERY INCORPORATED ANNE W. STEWART and THE PRUDENTIAL STEWART : REAL ESTATE : Additional · Defendants : IN RE. PRELIMINARY OBJECTIONS OF ADDITIONAL DEFENDANT BIECHLER AND TILLERY, INC. , TO DEFENDANT B-H AGENCY'S SECOND AMENDED JO INDER COMPLAINT BEFORE BAYLEY AND GUIDO, JJ. AND NOW, this ORDER day of JUNE, 1999, the Preliminary Objections of Additional Defendant Biechler & Tillery, Incorporated to the Second Amended Complaint of Defendant B-H Agency are DENIED. Additional Defendant Biechler & Tillery, Incorporated is directed to file an answer within twenty (20) days of receipt of this Order. Charles E. Haddick, Jr., Esquire Thomas M. Chairs, Esquire David Baric, Esquire Gordon Gelfond, Esquire Joseph Murphy, Esquire Guy Brooks, Esquire Thomas J. Williams, Esquire Darren Powell, Esquire Jeffrey R. Boswell, Esquire :sld By the Edwar E[ ~~ui~[ J. DANIEL T. MOOS and · IN THE COURT OF COMMON PLEAS OF DEBORAH MOOS, his wife, · CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs · V , · · ROY A. WILSON and NANCY · NO. 98-1046 CIVIL TERM R. WILSON, B-H AGENCY, ' STEVEN BLACK, ' INDIVIDUALLY AND AS ' CHIEF EXECUTIVE OFFICER, · CIVIL ACTION - LAW SECRETARY AND TREASURER · OF STEVEN BLACK HOMES, · INC. and STEVEN ' BLACK HOMES, INC., ' Defendants · · V · · · BIECHLER & TILLERY ' INCORPORATED ' ANNE W. STEWA/~T and ' THE PRUDENTIAL STEWART ' REAL ESTATE ' Additional · Defendants · IN RE- PRELIMINARY OBJECTIONS OF ADDITIONA_ L DEFENDANT BIECHLER AND TILLERY, INC. L TO DEFENDANT B-~ AGENCY'S SECOND AMENDED JO INDER COMPLAINT BEFORE BAYLEY AND GUIDO, JJ. _ OPINIO___~N AND ORDER_ OF COURT The complaint which started this action was filed on February 24, 1998. Since that time there has been a flurry of docket activity including numerous sets of preliminary objections. Currently before us are the preliminary objections of additional Defendant Biechler & Tillery Incorporated (hereinafter Biechler & Tillery) to the second amended joinder complaint of Defendants B-H Agency (hereinafter B-H). Biechler & Tillery requests that we dismiss the amended NO. 98-1046 CIVIL TERM joinder complaint of Defendant B-H on one or all of the following · grounds. 1) Joinder is improper under Pa. Rule of Civil Procedure 2252 (a) . 2) It fails to state a cause of action upon which relief can be granted. 3) A pre-existing agreement to arbitrate between Plaintiffs and Biechler & Tillery precludes any action before this Court. The parties have briefed and argued their respective positions. The matter is now ready for disposition. FACTUAL BACKGROUND Plaintiffs purchased a home which they allege has several serious structural defects. The home was shown to them by the employees of Defendant B-H real estate agency. The complaint alleges that Defendant B-H's employees knew or should have known of the defects and failed to disclose them to the Plaintiffs. In its joinder complaint against Biechler & Tillery, Defendant B-H makes the following relevant allegations- 1) Biechler & Tillery is a business engaged in providing residential home inspection services.~ 2) At the request of Plaintiffs, Biechler & Tillery conducted an inspection of the subject residence.2 3) Biechler & Tillery knew that Plaintiffs were relying on its expertise to determine whether any structural problems were present.3 ~Second Amended Joinder Complaint, Para. 5. ~'Second Amended Joinder Complaint, Para. 22. 3Second Amended Joinder Complaint, Para. 23. NO. 98-1046 CIVIL TERM 4) Biechler & Tillery negligently represented to Plaintiffs that no structural problems existed-4 5) Biechler & Tillery failed to render its services with the skill and knowledge normally possessed by home 5 inspectors in good standing in similar communities. 6) If there is a~y liability to Plaintiffs as a result of the alleged structural defects, Biechler & Tillery is solely liable to Plaintiffs. In the alternative, it is jointly and severally liable with Defendants or liable over to Defendants for contribution and indemnity.~ Biechler & Tillery alleges that the obligations between it and the Plaintiffs are defined by a written inspection services contract dated June 13, 1997.7 It further alleges that the 8 contract contains a binding arbitration provision. DISCUSSION Inappropriate Joinder. Biechler & Tillery argues that any liability it might have to Plaintiffs is based upon the express terms of the written service contract. Therefore, the argument continues, its joinder in a trespass cause of action is inappropriate under Pa.R.C.P. 4Second Amended Joinder Complaint, Para. 24. Actually, the report made reference to a potential roof problem which is not relevant for our purposes. 5Second Amended Joinder Complaint, Para. 24. 6Second Amended Joinder Complaint, Para. 24. 7Preliminary Objections of Biechler & Tillery to Second Amended Joinder Complaint, Para. 11. 8Exhibit B to Preliminary Objections of Biechler & Tillery to Second Amended Joinder Complaint. NO. 98-1046 CIVIL TERM 2252.9 We disagree. Biechler & Tillery contends that its position is supported by the holding of the Superior Court in Garrett Electronics CorD. v. Kempel Enterprises, Inc., 382 Pa. Super. 352, 555 A.2d 216 (1989). In Garrett the Plaintiff tenant sued its landlord for damages caused when the roof of the leased building collapsed. The landlord attempted to join the Plaintiff tenant's insurance carrier which had denied coverage for the loss. Refusing to allow the joinder, the Superior Court reasoned as follows- The plaintiff-lessee's action against its lessors had been based upon alleged negligence in the maintenance of the demised premises. The defendant-lessors sought to force the plaintiff to litigate in the same action the insurance coverage issue. This issue depends on the terms of the insurance policy written by the additional defendant insurer. The maintenance of the premises by the landlord and the coverage purchased by the lessee from its insurance company are distinct 9Pa. R.C.P. 2252(a) provides as follows- RULE 2252. RIGHT TO JOIN ADDITIONAL DEFENDANTS (a) Except as provided by Rule 1706.1, any defendant or additional defendant may join as an additional defendant any person, whether or not a party to the action, who may be (1) solely liable on the plaintiff's cause of action, or (2) liable over to the joining party on the plaintiff's cause of action, or (3) jointly or severally liable with the joining party on the plaintiff's cause of action, or (4) liable to the joining party on any cause of action arisin~ out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff's cause of action is based. NO. 98-1046 CIVIL TERM transactions. The evidence which will establish the lessors' duty to their tenant is separate and distinct from the evidence which will determine the type of coverage provided to the lessee by its insurer. In such a situation joinder is inappropriate. (citations omitted). Id. at 355-56, 555 A.2d at 217 (citations omitted). Applying the Superior Court's reasoning in Garrett to the case at bar, Biechler & Tillery argues that a claim against it based upon the contract with Plaintiffs cannot properly be joined with a negligence claim. However, that position is not supported by the Garrett holding. After citing Pa.R.C.P. 2252(a) verbatim, the Garrett Court went on to explain- This rule is to be broadly construed to effectuate its purpose of avoiding multiple lawsuits by settling in one action all claims arising out of the transaction or occurrence on which plaintiff's cause of action is based. However, "[j]oinder is permitted only so long as the additional defendant's alleged liability is related to the claim which the plaintiff asserts against the original defendant." Although joinder on the grounds of sole or joint liability must still be based "on the cause of action declared upon by the plaintiff," this phrase has been broadly construed to mean the harm of which the plaintiff complains. Id. at 354, 555 A.2d at 217 (citations omitted). In Garrett it was obvious that the question of plaintiff's insurance coverage and the question of defendant's negligent maintenance of the leased property arose out of different transactions. The complaint and the joinder complaint alleged harms which bore no similarities in time, nature or evidence necessary to prove liability. Such is not the case in the matter before us. We find Judge Beck's language in Somers v. Gross, 393 NO. 98-1046 CIVIL TERM Pa. Super. 509, 574 A.2d 1056 (1990) to be equally applicable to this case. In distinguishing Garrett she stated. We find no analogy between Garrett and the instant case. Clearly in Garrett the gravamen of the plaintiff's action against the lessor and of the joinder complaint against the insurer and the insurance broker were different. The plaintiff's action alleged negligence, whereas the joinder complaint alleged breach of contract; the plaintiff's action alleged failure to maintain the property, whereas the joinder complaint alleged failure to indemnify under the policy; the plaintiff's action alleged harm in the form of having to repair the property and sustaining business losses, whereas the joinder complaint alleged harm in the form of not being covered for those sums under the policy. As the Garrett Court noted, the transactions involved and the evidence pertinent thereto were entirely different in time and nature. In contrast, in the instant case the plaintiffs' complaint alleges negligence, and so does the joinder complaint; the plaintiffs' action alleges improper tax advice as to plaintiffs' 1984 taxes, and so does the joinder complaint; the plaintiffs' complaint alleges harm in the form of penalties and fees incurred because of the improper tax filings made by plaintiff in reliance on professional tax advice, and so does the joinder complaint. The transactions involved and the evidence pertinent thereto are the same in time and nature. Id. at 516, 574 A.2d at 1059-60. As in the Somers case, in the instant case Plaintiffs' complaint alleges negligence, as does the joinder complaint; the Plaintiffs' alle~e improper representations as to the structural integrity of the property, as does the joinder complaint; the Plaintiffs' complaint alle~es harm in the costs to be incurred in repairin~ the structural deficiencies, and so does the joinder complaint. Since the transactions and harm involved, as well as the evidence pertinent thereto, are the same in time and nature, NO. 98-1046 CIVIL TERM joinder is appropriate. Failure to State a Cause of Action. Biechler & Tillery maintains that its relationship with Plaintiffs was purely contractual. Therefore, it argues, their only remedy is for breach of contract. Since the joinder complaint sounds in ne~lic~ence, it should be dismissed. The standard for ~rantin~ a demurrer is whether it is clear and free from doubt that no relief can be granted on the facts as pled. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992) . We must accept as true all well pleaded facts together with any reasonable inferences which may be drawn therefrom. Mellon Bank v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). Applying that standard to the case at bar, the demurrer cannot be sustained. While it is true that the relationship between Plaintiffs and Biechler & Tillery is grounded in contract, it does not necessarily follow that Plaintiffs' sole remedy is for breach of contract. Restatement of Torts (Second) § 299 A provides: Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. See Robert Wooler Co., v. Fidelity Bank, 330 Pa. Super. 523, 479 A.2d 1027 (1984) in which the Court cited with approval Restatement of Torts (Second) § 299 A. The Wooler Court went on NO. 98-1046 CIVIL TERM to state' This standard has been followed uniformly by the courts of this Commonwealth in determining claims predicated upon alleged negligence on the part of...professionals persons. 330 Pa. Super. 532, 479 A.2d at 1031. Plaintiffs could have brought a negligence action against Biechler & Tillery arising from its purported faulty inspection. Since B-H has alleged such a claim in its joinder complaint, the demurrer must be denied. Effect of Binding Arbitration Clause. Finally, Biechler & Tillery maintains that the existence of a binding arbitration clause in its contract with Plaintiffs precludes its joinder in the instant action as an additional defendant. However, it cites no authority in support of this proposition. It is clear that the arbitration provision of the contract is binding upon Plaintiffs and Biechler & Tillery. Chester City School Authority v. Aberthaw Constr. Co., 460 Pa. 343, 333 A.2d 758 (1975) . However, the Supreme Court's reasoning in Chester City makes it equally clear that the arbitration clause cannot deprive B-H of its day in court. As the Chester City Court stated- [T]he defense of arbitration does not go to the court's jurisdiction over the subject matter... [A]n agreement to arbitrate is an election by the parties to select another forum to resolve disputes. While it is binding on the signators to that agreement, this private agreement by the parties does not have the power to NO. 98-1046 CIVIL TERM divest the court of jurisdiction. Id. at 348-49, 333 A.2d at 761 (citations omitted). Since B-H is neither a party to the contract nor bound thereby, Biechler & Tillery cannot use it as a shield to prevent joinder in the instant action. See Cumberland-Perry Area Vocational Sch. Auth. v. Boqar & Bink, 261 Pa. Super. 350, 396 A.2d 433 (1978). For the reasons set forth above, Biechler & Tillery's preliminary objections are denied. ORDER AND NOW, this 15TH day of JUNE, 1999, the Preliminary Objections of Additional Defendant Biechler & Tillery, Incorporated to the Second Amended Complaint of Defendant B-H Agency are DENIED. Additional Defendant Biechler & Tillery, Incorporated is directed to file an answer within twenty (20) days of receipt of this Order. By the Court, Charl'es E. Haddick, Jr., Esquire Thomas M. Chairs, Esquire David Baric, Esquire Gordon Gelfond, Esquire Joseph Murphy, Esquire Guy Brooks,-Esquire Thomas J. Williams, Esquire Darren Powell, Esquire Jeffrey R. Boswell, Esquire .sld /s/ Edward E. Gui do Edward E. Guido, J.