HomeMy WebLinkAbout2007-2408 Civil
NADER ALAJLOUNI and : IN THE COURT OF COMMON PLEAS OF
ANGELIC ALAJLOUNI, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. : CIVIL ACTION – LAW
:
ROBERT D. HENRY, III, :
and ROBERT D. HENRY, :
III, d/b/a HENRY :
CONSTRUCTION, :
Defendants : NO. 07-2408 CIVIL TERM
IN RE: DEFENDANTS’ PRELIMINARY
OBJECTIONS TO PLAINTIFFS’ COMPLAINT
BEFORE HESS, OLER and EBERT, JJ.
OPINION and ORDER OF COURT
OLER, J., December 17, 2007.
In this civil case, Plaintiffs have sued Defendants for breach of a construction
contract with respect to an addition to Plaintiffs’ home. For disposition as this time are
preliminary objections filed by Defendants to Plaintiffs’ complaint.
Defendants’ preliminary objections request dismissal of Plaintiffs’ complaint due
to (a) “legal insufficiency of Plaintiff’s complaint (demurrer) Count I and Count II—
breach of contract and breach of contract unworkmanlike performance failure to
complete in workman like manner” and (b) “failure to properly plead damages, pursuant
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to Title 42, Section 1028(a)(5).”
This matter was argued on October 3, 2007. For the reasons stated in this opinion,
Defendants’ preliminary objections will be sustained in part and denied in part.
STATEMENT OF FACTS
Count I of Plaintiffs’ two-count complaint is entitled “Breach of Contract.” The
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facts alleged in this count may be summarized as follows. Defendant Robert D. Henry,
III, entered into a written contract with Plaintiffs in July of 2003 for the construction of a
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Defendants’ Preliminary Objections, at 2.
2
In summarizing the complaint, the court is in no way expressing an opinion as to its factual accuracy.
substantial addition to Plaintiffs’ residence in Carlisle, Cumberland County,
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Pennsylvania. Defendant thereafter breached the contract in the following respects:
(a). plaintiff’s pipes froze throughout the entire residence.
(b). the heating system in the residence was not properly connected.
(c). various drains throughout the residence were not properly installed or
connected.
(d). walls constructed/finished were not properly sealed.
(e). the central vacuum system is defective.
(f). the electrical system is defective throughout the home.
(g). the deck was improperly constructed.
(h). the deck was improperly attached to the residence.
(i). the tile floor in the bathroom is not level.
(j). overhead support beams were improperly installed.
(k). there are framing defects around numerous doorways
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(l). other numerous defects to be proven at the time of trial.
With respect to damages, Count I of the Complaint states as follows:
16. The before mentioned damages have lowered the residences market value,
and has created a lasting stigma to potential buyers which reduces the value of the
home and its ability to be sold.
17. The costs of repairing or remedying the above defects in the property are
very great and are likely to exceed forty-five ($45,000.00) Thousand Dollars.
18. Plaintiffs also have anticipated future damages related to incidental and
consequential matters; as for instance, they will have to vacate the home due to the
nature of some of the major renovations required and will incur future expenses
and the like, including the costs associated with temporary quarters, along with
other incidental and consequential damages arising from such temporary living
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conditions, packing, moving expenses, and the like.
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Damages “in an unliquidated amount” are sought in Count I.
Count II of Plaintiffs’ Complaint is entitled “Breach of Contract Unworkmanlike
Performance Failure To Complete in Workman Like Manner.” The facts alleged in this
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count include those respecting liability recited in Count I. It is further asserted that
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Plaintiffs’ Complaint, paras. 4-5.
4
Plaintiffs’ Complaint, Count I, para. 12.
5
Plaintiffs’ Complaint, paras. 16-18.
6
Plaintiffs’ Complaint, Count I, ad damnum clause (emphasis added).
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Defendant has generally performed in a poor, improper, and unworkmanlike
manner, including but not limited to Defendant’s failure to build proper walls,
properly install the residences electrical system, in addition to the deck being
improperly constructed and attached to the residence, has created numerous
hazardous conditions that requires extensive remedial measures to undo the
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shortcomings of Defendants workmanship.
With respect to damages, Count II of the Complaint states the following:
26. The reasonable cost of remedying the aforementioned breaches is in
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excess of $48,000.00.
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Damages “in a liquidated amount of $60,000.00 are sought in Count II.
DISCUSSION
Demurrer. In reviewing a preliminary objection in the nature of a demurrer,
which challenges the legal sufficiency of a complaint, the court “must accept all material
facts set forth in the complaint[,] as well as all the inferences reasonably deducible
therefrom as true.” Powell v. Drumheller, 539 Pa. 484, 489, 653 A.2d 619, 621 (1995)
(citations omitted). A preliminary objection in the form of a demurrer should be
sustained only when, “on the facts averred, the law says with certainty no recovery is
possible.” Id.
To properly state a cause of action for breach of contract, a pleading must allege
“(1) the existence of a contract, including its essential terms, (2) a breach of a duty
imposed by the contract and (3) resultant damages.” J.F. Walker Co., Inc. v. Excalibur
Oil Group, Inc., 2002 PA Super 39, ¶7, 792 A.2d 1269, 1272.
In the present case, Plaintiffs have pled the elements of a cause of action for
breach of contract, albeit nonspecifically in some respects. Accordingly, it can not be
said with certainty that no recovery on the claim is possible, and a dismissal of the
complaint pursuant to a demurrer would not be proper.
Damages. Under Pennsylvania Rule of Civil Procedure 1028(a)(5), cited in
Defendants’ preliminary objections in support of a request for dismissal of Plaintiffs’
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Plaintiffs’ Complaint, paras. 19.
8
Plaintiffs’ Complaint, para. 24.
9
Plaintiffs’ Complaint, para. 26.
10
Plaintiffs’ Complaint, Count II, ad damnum clause (emphasis added).
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complaint due to a deficient pleading of damages, it is provided that “[p]reliminary
objections may be filed by any party to any pleading [on the basis, inter alia, of a] lack of
capacity to sue, nonjoinder of a necessary party or misjoinder of a cause of action.” This
rule would not appear to have any relevancy to the sufficiency of Plaintiffs’ pleading of
damages.
Under Pennsylvania Rule of Civil Procedure 1021 (Claim for Relief.
Determination of Amount in Controversy), “[a]ny pleading demanding relief shall
specify the relief sought.” Pa. R.C.P. 1021(a). Under Pennsylvania Rule of Civil
Procedure 1019(f), “averments of . . . items of special damage shall be specifically
stated.” “Special damages are those that are not the usual and ordinary consequences of
the wrong done but which depend on special circumstances.” Hooker v. State Farm Fire
and Casualty Co., 880 A.2d 70, 77 (Pa. Commw. 2005). A complaint should be
“sufficiently clear to enable the defendant to prepare his defense.” Rambo v. Greene,
2006 PA Super 231, ¶11, 906 A.2d 1232, 1236.
In the present case, where Plaintiffs have demanded a monetary recovery for, inter
alia, reconstruction work, a depreciation in the value of their home, temporary living
quarters, packing, moving expenses, and “incidental” damages, and have variously
referred to their losses as “likely to exceed forty-five ($45,000.00) Thousand Dollars,”
“in excess of 48,000.00,” “$60,000.00,” “liquidated” and “unliquidated,” the averments
as to damages in their complaint lack the appropriate specificity and clarity necessary to
an informed defense.
For the foregoing reasons, the following order will be entered:
ORDER OF COURT
th
AND NOW, this 17 day of December, 2007, upon consideration of Defendants’
preliminary objections to Plaintiffs’ complaint, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. Defendants’ preliminary objections are sustained to the extent
that Plaintiffs are directed to file a more specific complaint as to
damages within 20 days of the entry of this order, in the absence of
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which their complaint shall be deemed dismissed without further
order of court; and
2. Defendants’ preliminary objections are otherwise denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Karl E. Rominger, Esq.
Michael O. Palermo, Jr., Esq.
155 S. Hanover Street
Carlisle, PA 17013
Attorney for Plaintiffs
Jason P. Kutulakis, Esq.
36 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant
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NADER ALAJLOUNI and : IN THE COURT OF COMMON PLEAS OF
ANGELIC ALAJLOUNI, : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs :
:
v. : CIVIL ACTION – LAW
:
ROBERT D. HENRY, III, :
and ROBERT D. HENRY, :
III, d/b/a HENRY :
CONSTRUCTION, :
Defendants : NO. 07-2408 CIVIL TERM
IN RE: DEFENDANTS’ PRELIMINARY
OBJECTIONS TO PLAINTIFFS’ COMPLAINT
BEFORE HESS, OLER and EBERT, JJ.
ORDER OF COURT
th
AND NOW, this 17 day of December, 2007, upon consideration of Defendants’
preliminary objections to Plaintiffs’ complaint, and for the reasons stated in the
accompanying opinion, it is ordered and directed as follows:
1. Defendants’ preliminary objections are sustained to the extent
that Plaintiffs are directed to file a more specific complaint as to
damages within 20 days of the entry of this order, in the absence of
which their complaint shall be deemed dismissed without further
order of court; and
2. Defendants’ preliminary objections are otherwise denied.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Karl E. Rominger, Esq.
Michael O. Palermo, Jr., Esq.
155 S. Hanover Street
Carlisle, PA 17013
Attorney for Plaintiffs
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Jason P. Kutulakis, Esq.
36 South Hanover Street
Carlisle, PA 17013
Attorney for Defendant