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HomeMy WebLinkAbout00-8219 civilMARTHA E. RUFF, Plaintiff VS. NORTHEASTERN HOME IMPROVEMENTS OF HARRISBURG, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 00-8219 CIVIL CIVIL ACTION - EQUITY IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY AND HESS, J.J. ORDER AND NOW, this day of June, 2001, the preliminary objection of the defendant to the plaintiff's complaint in equity is SUSTAINED and this action is certified to the law side of the court. The preliminary objection of the defendant to plaintiff' s complaint under the Unfair Trade Practices and Consumer Protection Law is DENIED. BY THE COURT, Clarence B. Tums, Jr., Esquire For the Plaintiff Kev/~'I-Iess, J. Gregory R. Reed, Esquire For the Defendant :rlm MARTHA E. RUFF, Plaintiff VS. NORTHEASTERN HOME IMPROVEMENTS OF HARRISBURG, INC. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA 0O-8219 CIVIL CIVIL ACTION- EQUITY IN RE: DEFENDANT'S PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY AND HESS, J.J. OPINION AND ORDER Before the court are the preliminary objections of the defendant, Northeastern Home Improvements of Harrisburg, Inc. The plaintiff, Martha E. Ruff, owns a two-story home in which she resides at 213 Kelker Street, Harrisburg, Dauphin County, Pennsylvania 17102. The defendant is a corporation involved in the home improvement business and has its place of business at 125 North Enola Drive, Enola, Cumberland County, Pennsylvania 17025. The complaint alleges the following facts. On or about-October 20, 1999, the plaintiff received a telephone call at her home from an employee or agent acting on behalf of the defendant. The employee or agent stated that they were doing home repair work in her neighborhood and solicited her agreement to enter into a home improvement contract. The plaintiff agreed to allow the defendant to send an appraiser to her home to prepare an estimate of the cost of certain repairs to the plaintiff' s second story porch attached to the house. On or about October 22, 1999, an employee or agent acting for or on behalf of the defendant appeared at the plaintiff' s house to discuss the repairs to be performed on 00-8219 EQUITY the porch. A written contract was entered into, which contract contained the price of $4,500.00 to be paid for the repairs and a description of the work to be done.l On or about November 17 and 18, 1999, the defendant performed the repairs on the porch, which consisted primarily of the removal of the then existing floor of the porch and the installation of a new floor. Upon finishing the work, the employees of the defendant showed the plaintiff the work and assured her that it was done in a workmanlike manner and would serve her purposes. Thus satisfied, the plaintiff paid the remaining balance then due the defendant of $4,400.00. Within five days after the completion of the repairs, the floor boards of the porch began to warp and buckle to a degree that it was not possible for the plaintiff to walk on the porch safely. It was subsequently determined that the floor boards were not suitable for outdoor use. They had not been treated in any manner that would render them weather resistant. The plaintiff demanded that the defendant replace the floor. This the defendant refused to do. Suit was subsequently filed before District Justice Robert V. Manlove who awarded Ms. Ruff the entire price of the contract, $4,500.00, together with the costs. The defendant appealed. On December 12, 2000, the plaintiff filed a complaint in this court seeking rescission of the home improvement contract and restitution of the $4,500.00 that she had paid to the defendant. The defendant contends that plaintiff is improperly seeking equitable relief because she has an adequate remedy at law. Thus, we are asked to dismiss counts I and II. ~ Interestingly enough, the contract does not contain the notice required by 73 P.S. 201-7 to the effect that the consumer may rescind the contract within three days of the date the contract was made. This right to rescind is, of course, statutory and would not be affected by our transfer of this case to the law side of the court. 00-8219 EQUITY Rescission is an equitable remedy to be granted only where the parties to a contract can be placed in their former positions with regard to the subject matter of the contract. Sullivan v. Allegheny Ford Truck Sales, Inc;, 283 Pa. Super. 351,359, 423 A.2d 1292, 1295 (1980). The purpose of equitable rescission is to return the parties as nearly as possible to their original positions where warranted by the circumstances of the transaction. Gilmore v. Northeast Dodge Co., Inc;, 278 Pa. Super. 209, 216, 420 A.2d 504, 507 (1980) citing Fichera v. Gording, 424 Pa. 404, 227 A.2d 642 (1967). Although the mere existence of a legal remedy is not sufficient to preclude equity jurisdiction, a court of equity may, in the exercise of its discretion, determine whether the legal remedy is full, adequate, and complete in view of all of the surrounding circumstances and the conduct of the parties. Long John Silver's, Inc. v. Fiori, 255 Pa. Super. 183, 195, 386 A.2d 569, 575 (1978). In the instant matter, the plaintiff claims that she is entitled to equitable relief because the defendant breached the implied warranty of reasonable workmanship and/or because of false representations made by the defendant concerning the porch. A favorable outcome for the plaintiff would not, however, return the defendant to its original position before the contract. Where it is determined that rescission is not appropriate, or where the plaintiff elects to affirm the contract, damages at law may be awarded. Silverman v. Bell Savings and Loan Assn_, 367 Pa. Super. 464, 475,533 A.2d 110, 116 (1987). Such damages include, "(a) the difference between the value of' what [plaintiff] has received in the transaction and its purchase price or other value given for it; and (b) pecuniary loss suffered otherwise as a consequence of the recipient's reliance upon the misrepresentations." Id. at 116, citing Restatement (Second) of Torts Section 549. 00-8219 EQUITY We are satisfied that the measure of damages available to the plaintiff in light of her pleadings with respect to breach of contract and fraud is flexible enough to fully compensate the plaintiff for her loss. Therefore, we will sustain the defendant's preliminary objection but will not, however, dismiss the action. Upon sustaining a preliminary objection with respect to the existence of an adequate remedy of law, the appropriate step is for the court to certify the action to the law side. In fact, Rule 1509(c) of the Pennsylvania Rules of Civil Procedure specifically states: The objection of the existence of a full, complete and adequate non-statutory remedy at law shall be raised by preliminary objection. If the objection is sustained, the court shall certify the action to the law side of the court. Pa.R.C.P. 1509(c). The other preliminary objection of the defendant is to count III of the plaintiff's complaint based on the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. Section 201-1 et seq. The plaintiff's claims under the Act include misrepresentations as to the quality of goods or services and making substandard repairs or improvements. The defendant contends that no facts alleged in the complaint would support these claims. We disagree with the defendant and are satisfied that, taken as a whole, the complaint adequately supports claims under the U.T.P.C.P.L. ORDER AND NOW, this ! ! · day of June, 2001, the preliminary objection of the defendant to the plaintiff's complaint in equity is SUSTAINED and this action is certified to the law side of the court. 00-8219 EQUITY The preliminary objection of the defendant to plaintiff's complaint under the Unfair Trade Practices and Consumer Protection Law is DENIED. BY THE COURT, Clarence B. Tums, Jr., Esquire For the Plaintiff Gregory R. Reed, Esquire For the Defendant :rim