HomeMy WebLinkAbout2006-4482 Civil
CUSTER DESIGN : IN THE COURT OF COMMON PLEAS OF
GROUP, INC., for the : CUMBERLAND COUNTY, PENNSYLVANIA
benefit of HEIRLOOM :
CABINETRY OF :
PENNSYLVANIA, INC., :
and :
HEIRLOOM : CIVIL ACTION--LAW
CABINETRY OF :
PENNSYLVANIA, INC., :
Plaintiffs :
:
v. :
:
LaMARCO :
CONTRACTING, INC., :
Defendant : NO. 06-4482 CIVIL TERM
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
TO PLAINTIFFS’ AMENDED COMPLAINT
BEFORE OLER, GUIDO and EBERT, JJ.
OPINION and ORDER OF COURT
OLER, J., June 21, 2007.
For disposition in this civil case are preliminary objections to an amended
complaint. The complaint, involving the construction of a house, arises out of an
allegedly deficient installation of an HVAC system by the defendant, a
subcontractor. The preliminary objections were argued before an en banc court on
May 16, 2007.
For the reasons stated in this opinion, the preliminary objections will be
sustained in part and denied in part.
STATEMENT OF FACTS
The present action was commenced on August 4, 2006, by the filing of a
complaint bearing the caption “Custer Design Group, Inc., for the benefit of
Heirloom Cabinetry of Pennsylvania, Inc., Plaintiff v. LaMarco Contracting, Inc.,
12
Defendant.” Pursuant to leave of court, an amended complaint was filed on
February 6, 2007, bearing the caption “Custer Design Group, Inc., for the benefit
of Heirloom Cabinetry of Pennsylvania, Inc., and Heirloom Cabinetry of
3
Pennsylvania, Inc., Plaintiffs v. LaMarco Contracting, Inc., Defendant.”
The allegations of Plaintiffs’ amended complaint may be summarized as
follows:
Plaintiff Custer Design Group, Inc., is a Pennsylvania business corporation
having offices in Harrisburg, Dauphin County, Pennsylvania, with its principal
business being that of a general contractor in the construction of residential
4
homes. Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., is a Pennsylvania
business corporation having offices in Mifflintown, Juniata County, Pennsylvania,
with its principal business being that of a fabricator and installer of wood
5
cabinetry and fabricator of wood furniture. Defendant, LaMarco Contracting,
Inc., is a Pennsylvania business corporation having offices in Harrisburg, Dauphin
6
County, Pennsylvania, with its business being that of an HVAC contractor.
At some point in time, a certain third party contracted with Plaintiff Custer
Design Group, Inc., to construct a house on realty owned by the third party in
7
Mechanicsburg, Cumberland County, Pennsylvania. Thereafter, in October of
2003, Plaintiff Custer Design Group, Inc., engaged Plaintiff Heirloom Cabinetry
of Pennsylvania, Inc., as a subcontractor on the project to fabricate and install
8
cabinetry, paneling, and other wood products.
1
Plaintiff’s Complaint, filed August 4, 2006.
2
Order of Court, February 1, 2007 (Guido, J.).
3
Plaintiffs’ Amended Complaint, filed February 6, 2007.
4
Plaintiffs’ Amended Complaint, para. 1.
5
Plaintiffs’ Amended Complaint, para. 2.
6
Plaintiffs’ Amended Complaint, para. 3.
7
Plaintiffs’ Amended Complaint, para. 4.
8
Plaintiffs’ Amended Complaint, para. 5 and Ex. A.
2
At some point in time, a corporation known as Custer Homes, Inc. (which
Plaintiffs now concede is an entity different from named Plaintiff Custer Design
9
Group, Inc.) engaged Defendant LaMarco Contracting, Inc., as a subcontractor on
10
the project to install an HVAC system. This installation, completed in October
1112
of 2003, was improperly performed.
In particular, Defendant “fail[ed] to install an appropriate overflow
condensation pan or drain for the humidifier which was suspended above the
13
dining room ceiling.” Ceiling, wall and floor damage, as well as damage to
cabinetry and furniture, resulted from water and/or high humidity attributable to
14
Defendant’s improper installation. As a consequence of the foregoing, Plaintiffs
15
have incurred various expenses in repairing and replacing items in the house.
Plaintiffs’ Amended Complaint consists of a breach of contract claim by
Plaintiff Custer Design Group, Inc., brought on its own behalf and “for the benefit
16
of Heirloom Cabinetry of Pennsylvania, Inc.,” and a negligence claim by
17
Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., against Defendant LaMarco
Contracting, Inc. Each count alleges that Defendant’s actions “were wanton,
outrageous and reckless, thereby justifying an award of punitive damages and
18
attorneys’ fees.”
9
Plaintiffs’ [sic] Brief in Opposition to Defendant LaMarco Contracting, Inc.’s Preliminary
Objections to Plaintiffs’ Amended Complaint, at 4-5; Plaintiffs’ counsel also conceded this point
at oral argument.
10
Plaintiffs’ Amended Complaint, para. 6 and Ex. B.
11
Plaintiffs’ Amended Complaint, para. 7.
12
Plaintiffs’ Amended Complaint, para. 10.
13
Plaintiffs’ Amended Complaint, para. 10.
14
Plaintiffs’ Amended Complaint, paras. 11-22.
15
Plaintiffs’ Amended Complaint, paras. 20-26.
16
Plaintiffs’ Amended Complaint, paras. 30-34.
17
Plaintiffs’ Amended Complaint, paras. 35-38.
18
Plaintiffs’ Amended Complaint, paras. 34, 38.
3
Paragraph 9 of Plaintiffs’ Amended Complaint alleges that Defendant
“owed a general duty to install the HVAC system . . . in a workmanlike manner.”
Paragraph 10 of Plaintiffs’ Amended Complaint alleges, without further
specification, that the impropriety of Defendant in the installation “was not limited
to” the failure to install the appropriate overflow condensation pan or drain for the
humidifier. Paragraphs 9, 32-33 and 36-37 allege, without further specification,
that Defendant failed to comply with “industry standards and practices
and . . . applicable building codes.”
Paragraph 23 alleges that Defendant’s insurance company reimbursed
Plaintiff Custer Design Group, Inc., for certain costs relating to Defendant’s
performance. Paragraph 28 alleges that the same insurance company refused to
reimburse Plaintiff Heirloom Cabinetry of Pennsylvania, Inc., for its costs in
replacing cabinetry and furniture.
Defendant’s preliminary objections to the amended complaint consist of the
following: (1) a demurrer to the contract claim of Plaintiff Custer Design Group,
Inc., to the extent that the claim is asserted on its own behalf, due to a lack of
19
privity with Defendant; (2) a demurrer to the contract claim of Plaintiff Custer
Design Group, Inc., to the extent that the claim is asserted on its own behalf, due
to its admission that (some of) its loss had been paid by Defendant’s insurer; (3) a
demurrer to the contract claim of Plaintiff Custer Design Group, Inc., to the extent
that the claim is asserted on behalf of Heirloom Cabinetry of Pennsylvania, Inc.,
20
due to a lack of standing; (4) a demurrer to the negligence claim of Heirloom
Cabinetry of Pennsylvania, Inc., due to the expiration of the statute of limitations;
(5) a motion to strike Plaintiffs’ claims for punitive damages, due to the
inappropriateness of such relief on a contract claim and an absence of a factual
19
Defendant LaMarco Contracting, Inc.’s Preliminary Objections to Plaintiffs’ Amended
Complaint, para. 15.
20
Defendant LaMarco Contracting, Inc.’s Preliminary Objections to Plaintiffs’ Amended
Complaint, para. 12.
4
21
basis for such damages as to either claim; (6) a motion to strike Plaintiffs’ claims
22
for attorney’s fees, due to the lack of a legal basis for such relief; (7) a motion to
23
strike references to insurance, due to their scandalous and impertinent nature; (8)
a motion to strike the “was not limited to” language of the complaint, due its
unlimited scope; (9) a motion to strike the allegation of unworkmanlike
performance, due to its generality; and (10) a motion to strike allegations of
unspecified violations of industry standards, industry practices and building codes,
due to their generality. These objections will be discussed seriatim in the balance
of this opinion.
DISCUSSION
Demurrer to contract claim of Plaintiff Custer Design Group, Inc., brought
on its own behalf, due to lack of privity. As a general rule, a breach of contract
claim can not be sustained in the absence of privity between the plaintiff and
defendant. See Farabaugh v. Pennsylvania Turnpike Commission, 590 Pa. 46, 911
A.2d 1264 (2006). The facts alleged in the present case do not implicate an
exception to this general rule, and accordingly Defendant’s demurrer to the
contract claim of Plaintiff Custer Design Group, Inc., brought on its own behalf
will be granted.
Demurrer to contract claim of Plaintiff Custer Design Group, Inc., due to
its admission that some of its loss had been paid. “There is no such thing as a
‘partial’ demurrer—a demurrer to a part only of plaintiff’s claim.” Snyder v.
Munroe, 1 Adams L.J. 129, 137, 27 Pa. D. & C.2d 32, 42 (1960) (citations
omitted). In the present case, although Plaintiff Custer Design Group, Inc.,
indicates that some of its losses have been paid, it does not concede that full
21
Defendant LaMarco Contracting, Inc.’s Preliminary Objections to Plaintiffs’ Amended
Complaint, para. 20.
22
Defendant LaMarco Contracting, Inc.’s Preliminary Objections to Plaintiffs’ Amended
Complaint, para. 20.
23
Defendant LaMarco Contracting, Inc.’s Preliminary Objections to Plaintiffs’ Amended
Complaint, paras. 28-29, 31.
5
compensation has been received. Accordingly, it would be inappropriate to grant
a demurrer to the contract claim on the theory that Plaintiff has been partially
compensated for Defendant’s alleged breach.
Demurrer to contract claim of Plaintiff Custom Design Group, Inc.,
brought “for the benefit of” Heirloom Cabinetry of Pennsylvania, Inc., due to
lack of standing. As a general rule, to have standing to bring a suit a party must
show “a direct and substantial interest [and] a sufficiently close causal connection
between the challenged action and the asserted injury to qualify the interest as
‘immediate’ rather than ‘remote’.” Allegheny County v. Monzo, 509 Pa. 26, 33-34,
500 A.2d 1096, 1100 (1985) (citations omitted); see Pa. R.C.P. 2002 (prosecution
of actions by real parties in interest; exceptions).An arrangement whereby one
person or entity, not the real party in interest, pursues the claim of the real party in
interest, is frequently considered champertous and legally uncognizable. Clark v.
Cambria County Board of Assessment Appeals, 747 A.2d 1242, 1246 (Pa.
Commw. Ct. 2000).
No exception being evident in the present case to the general rule that a
claim may not be prosecuted by a person or entity other than the real party in
interest, Defendant’s demurrer to the contract claim of Plaintiff Custom Design
Group, Inc., filed “for the benefit of” Heirloom Cabinetry of Pennsylvania, Inc.,
will be granted.
Demurrer to negligence claim of Plaintiff Heirloom Cabinetry of
Pennsylvania, Inc., due to expiration of statute of limitations. The statute of
limitations for negligence actions of the present type would appear to be two
years. Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §5524. In general, a statute-
of-limitations defense is to be raised in new matter at the time an answer is filed,
rather than by preliminary objection. Pa. R.C.P. 1030; Cohen v. Mirin, 1999 Pa.
Super. 103, ¶8, 729 A.2d 1236, 1238 (1999). An exception to this rule applies, at
least in the absence of a preliminary objection to the preliminary objection, where
the expiration of the limitations period prior to the commencement of suit is
6
evident from the complaint itself. See Davis v. Commonwealth, 660 A.2d 157,
159 n.2 (Pa. Commw. Ct. 1995).
In certain types of cases, under the “discovery” rule a statutory limitations
period will not be deemed to have begun to run prior to the time that the plaintiff
knew, or should reasonably have known, (1) that he or she has been damaged and
(2) that the damage was caused by another’s conduct. Redenz v. Duquesne Light
Co., 341 Pa. Super. 329, 331-32, 491 A.2d 841, 842 (1985).
In the present case, it is not clear from the face of Plaintiffs’ complaint that
the statute of limitations as to the negligence claim had run prior to the
commencement of suit. For this reason, Defendant’s demurrer to the negligence
claim based upon the statute of limitations will not be granted.
Motion to strike punitive damage claims. Punitive damages are rarely
recoverable on a claim for breach of contract. The Flynn Co. v. Peerless Door &
Glass, Inc., 2002 WL 1018937 (Philadelphia Co. 2002). In addition, a court may
award punitive damages in an action only where the described conduct was
“committed willfully, maliciously, or so carelessly as to indicate wanton disregard
of the rights of the party injured.” G.J.D. v. Johnson, 552 Pa. 169, 172, 713 A.2d
1127, 1129 (1998). When a party demands punitive damages, courts have found
“no fault in utilizing words such as wanton, reckless, willful and intentional;
however, to support an award of punitive damages the pleadings must state in
what manner defendant[’]s conduct was egregious and[/or] intentional.” Davis v.
Clear Lake Lumber, Inc., 6 Pa. D. & C.4th 67, 73 (Warren Co. 1989); see Van
Ingen v. Wentz, 70 Pa. D. & C.2d 555 (Monroe Co.1975).
In the present case, the law would not support a recovery for punitive
damages with respect to any contractual claim made, nor do the allegations of the
complaint provide any factual basis for a conclusion that Defendant’s conduct was
malicious, wanton, reckless, willful or oppressive. Plaintiffs’ claims for punitive
damages therefore can not survive a motion to strike.
7
Motion to strike attorney’s fees claims. As a general rule, attorney’s fees
will not be awarded unless there is an applicable statute, contractual agreement or
other established exception that allows such recovery from the adverse party.
Commonwealth, Department of Transportation v. Smith, 145 Pa. Commw. 164,
168, 602 A.2d 499, 501 (1992). No facts implicating an exception to the general
rule have been pled in this case, and Plaintiffs’ claims for attorney’s fees can not
be sustained.
Motion to strike references to insurance. In order for an allegation to be
deemed scandalous and impertinent, the allegation must be immaterial and
inappropriate to the proof of the cause of action. Department of Environmental
Resources v. Peggs Run Coal Co., 55 Pa. Commw. 312, 320, 423 A.2d 765, 769
(1980). “Reference to insurance coverage when the issue is negligence would be
prejudicial” and impertinent, “and must be stricken.” Berkebile v. Nationwide Ins.
Co., 6 Pa. D. & C.3d 243, 249 (Somerset Co. 1977). Plaintiff’s references to
Defendant’s insurance coverage are similarly immaterial and inappropriate and
will be stricken.
Motion to strike “was not limited to” language. In Connor v. Allegheny
General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the Pennsylvania Supreme
Court held that the use of the language “otherwise failing to use due care and
caution under the circumstances” enabled the plaintiff to amend the complaint to
specify “the other ways in which [the defendant] was negligent in [that] case.” Id.
at 310, 461 A.2d at 602. The Court elaborated on this holding by noting that “[i]f
[defendant] did not know how it ‘otherwise fail[ed] to use due care and caution
under the circumstances,’ it could have filed a preliminary objection in the nature
of a request for a more specific pleading or it could have moved to strike that
portion of [the plaintiff’s] complaint.” Id. at 311 n.3, 461 A.2d at 602 n.3.
This precept in Connor has been applied to language of the “including but
not limited to” type. Habig v. Spencer, No. 3089 Civil 1992 (Cumberland Co.
January 26, 1993); Wiest v. L & B Poultry, 112 Dauphin Co. 144 (1992).In
8
accordance with the foregoing, the “was not limited to” language of Plaintiff’s
complaint will be stricken.
Motion to strike reference to “unworkmanlike manner” of performance.
The contention that construction work on a house was not performed in a
24
reasonably workmanlike manner is common to litigation on the subject, and does
not appear to the court to be susceptible to a challenge on grounds of an absence of
specificity. The lack of generality of the term is suggested by the following
language of the Superior Court:
This action to recover the balance due on a contract for the
installation of storm windows on defendant’s premises is defended on the
ground that plaintiff failed to perform the work in accordance with the
contract. In more specific terms, the defense is that the work was not done
in a good and workmanlike manner.
Mort Co. v. Paul, 167 Pa. Super. 532, 533, 76 A.2d 445, 446 (1950) (emphasis
added). Accordingly, Defendant’s motion to strike in this regard will not be
granted.
Motion to strike references to unspecified violations of industry standards,
industry practices and building codes. “The Commonwealth of Pennsylvania is a
fact pleading state whereby the complaint must provide the defendant notice of the
basis of the claim as well as a summary of the facts essential support that claim.”
Latniak v. Von Koch, 70 Pa. D. & C.4th 489, 494 (Lackawanna Co. 2004). To
determine if a pleading meets Pennsylvania’s specificity requirements, a court
must ascertain whether the facts alleged are “sufficiently specific so as to enable
[a] defendant to prepare [its] defense.” Smith v. Wagner, 403 Pa. Super. 316, 319,
588 A.2d 1308, 1310 (1991) (citation omitted); see also In re The Barnes
Foundation, 443 Pa. Super. 369, 381, 661 A.2d 889, 895 (1995).
In a worker’s compensation case, it has been held that an allegation that a
defendant “operat[ed its] plant in violation of the Statutes of the Commonwealth
of Pennsylvania and regulations of the Department of Labor and Industry
24
See, e.g., Edlerkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972).
9
pertaining to safety of employees thereon” was insufficiently specific to enable the
defendant to prepare its defense. Cherneskie v. Bethlehem Steel Corp., 70 Pa. D.
& C.2d 605, 612 (Philadelphia Co. 1974).In the present case, Plaintiffs’
allegations that Defendant failed to comply with unspecified “industry standards
and practices and . . . applicable building codes” are similarly deficient.
Based upon the foregoing, the following order will be entered:
ORDER OF COURT
st
AND NOW, this 21 day of June, 2007, upon consideration of Defendant’s
preliminary objections to Plaintiffs’ amended complaint, and for the reasons stated
in the accompanying opinion, it is ordered and directed as follows with respect to
Plaintiffs’ Amended Complaint:
1. Count 1 (contract claim of Plaintiff Custom Design
Group, Inc., and contract claim “for the benefit of” Plaintiff
Heirloom Cabinetry of Pennsylvania, Inc.) is dismissed;
2. The demand for punitive damages is stricken;
3. The demand for attorney’s fees is stricken;
4. References to Defendant’s insurance coverage are
stricken;
5. The words “was not limited to” are stricken;
6. Averments that Defendant failed to comply with
“industry standards and practices and . . . applicable building
codes” will be deemed stricken without further order of court
unless, within 20 days of the date of this order, a second
amended complaint is filed which specifically identifies the
same;
7. No other relief is granted with respect to Defendant’s
preliminary objections.
10
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Thomas J. Nehilla, Esq.
Jennifer Zimmerman, Esq.
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Plaintiffs
W. Darren Powell, Esq.
Corey J. Adamson, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17101
Attorneys for Defendants
11
12
CUSTER DESIGN : IN THE COURT OF COMMON PLEAS OF
GROUP, INC., for the : CUMBERLAND COUNTY, PENNSYLVANIA
benefit of HEIRLOOM :
CABINETRY OF :
PENNSYLVANIA, INC., :
and :
HEIRLOOM : CIVIL ACTION--LAW
CABINETRY OF :
PENNSYLVANIA, INC., :
Plaintiffs :
:
v. :
:
LaMARCO :
CONTRACTING, INC., :
Defendant : NO. 06-4482 CIVIL TERM
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
TO PLAINTIFFS’ AMENDED COMPLAINT
BEFORE OLER, GUIDO and EBERT, JJ.
ORDER OF COURT
st
AND NOW, this 21 day of June, 2007, upon consideration of Defendant’s
preliminary objections to Plaintiffs’ amended complaint, and for the reasons stated
in the accompanying opinion, it is ordered and directed as follows with respect to
Plaintiffs’ Amended Complaint:
1. Count 1 (contract claim of Plaintiff Custom Design
Group, Inc., and contract claim “for the benefit of” Plaintiff
Heirloom Cabinetry of Pennsylvania, Inc.) is dismissed;
2. The demand for punitive damages is stricken;
3. The demand for attorney’s fees is stricken;
4. References to Defendant’s insurance coverage are
stricken;
5. The words “was not limited to” are stricken;
6. Averments that Defendant failed to comply with
“industry standards and practices and . . . applicable building
codes” will be deemed stricken without further order of court
unless, within 20 days of the date of this order, a second
amended complaint is filed which specifically identifies the
same;
7. No other relief is granted with respect to Defendant’s
preliminary objections.
BY THE COURT,
________________
J. Wesley Oler, Jr., J.
Thomas J. Nehilla, Esq.
Jennifer Zimmerman, Esq.
One South Market Square
P.O. Box 1146
Harrisburg, PA 17108-1146
Attorneys for Plaintiffs
W. Darren Powell, Esq.
Corey J. Adamson, Esq.
305 North Front Street
P.O. Box 999
Harrisburg, PA 17101
Attorneys for Defendants