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HomeMy WebLinkAbout99-2755 CivilJOHN F. WALTER EXCAVATING, INC., Plaintiff Vo HARRY H. FOX, JR. and JOHN H. FOX, t/a FOX AND FOX, a partnership, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-2755 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF' S COMPLAINT BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND defendants' NOW, thisZ~c,l day of November, 1999, upon consideration of, preliminary objections to plaintiWs complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, sley Oler~,[ ). /-~ ' Theodore A. Adler, Esq. Thomas O. Williams, Esq. 2331 Market Street Camp Hill, PA 17011 Attorneys for Plaintiff James D. Hughes, Esq. Mark D. Schwartz, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorneys for Defendants irc JOHN F. WALTER EXCAVATING, INC., Plaintiff Vo HARRY H. FOX, JR. and JOHN H. FOX, t/a FOX AND FOX, a partnership, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 99-2755 CIVIL TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFF'S COMPLAINT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT Oler, J., November , 1999. In this civil case, plaintiff has sued Defendants for breach of contract anti unjust enrichment. The action arises out of an alleged undertaking by plaintiff whereby certain excavating and paving work was performed by plaintiff on a project owned by defendants. Plaintiff alleges that it has not been fully paid for its work. For disposition at this time are preliminary objections to plaintiff's complaint, based upon legal insufficiency of the pleading1 and lack of conformity to rule of court.2 Specifically, defendants contend (a) that the absence of a breach See Pa. R.C.P. 1028(a)(4). See Pa. R.C.P. 1028(a)(2). on their part is evident from the terms of the contract, (b) that, because of the absence of a breach, damages under Pennsylvania's Contractor and Subcontractor Payment Act are not recoverable by plaintiff, and (c) that plaintiff's joinder of a claim for breach of contract with a claim under the Contractor and Subcontractor Payment Act is violative of the rule that separate causes of action are to be pled in separate counts.3 Defendants' preliminary objections were argued on October 13, 1999. For the reasons stated in this opinion, the preliminary objections will be denied. STATEMENT OF FACTS Plaintiff's complaint consists of a count for breach of contract and a count for unjust enrichment. The count for breach of contract may be summarized in~ pertinent part as follows. In September of 1995, the parties entered into a written contract whereby plaintiff was to perform certain excavating and paving work in connection with a project owned by defendants, known as Crossroads School Estates, for a base price of $140,238.00.4 The parties subsequently agreed that plaintiff would, in addition, perform certain excavation work for electrical lines on the project on a time and materials basis.5 One term of the written contract stated: 3 Preliminary Objections of the Defendants paragraphs 1-18. 4 Plaintiff's Complaint, paragraph 3, Exhibit A. 5 Id., paragraph 4. to the Plaintiff's Complaint, 2 Payment to be made as follows: Net - 30 days6 The effect of this provision was to require payment for work properly performed by plaintiff to be made within thirty days of defendants' receipt of an invoice for the work.7 Another provision in the written contract stated that payments on the base figure of $140,238.00 were "to be made upon acceptance by West Pennsboro Township and upon release of the money held by West Pennsboro Township under a completion Bond.''8 Plaintiff performed the work, submitted periodic invoices and received payments from defendants in the amount of $138,670.50.9 However, a balance remains due to plaintiff of $32,788.27, notwithstanding the passage of more than thirty days from submission of invoices to defendants and in spite of repeated~ 10 demands by plaintiff for payment. Plaintiff was acting as a "contractor" within the meaning of that term as used in Pennsylvania's Contractor and Subcontractor Payment Act.~ Damages 6 Id., Exhibit A. 7 Id., paragraph 11. s Id., Exhibit A. 9 Plaintiff's Complaint, paragraphs 4-7. lo Id., 7-14. ~ Id., paragraph 10; see Act of February 17, 1994, P.L. 73, 73 P.S. §§501 et seq. (1999 Supp.). 3 recoverable for defendants' breach of contract, under the act, include statutory penalties and interest, attorney's fees, and costs.12 Defendants' preliminary objections to plaintiff's complaint may be summarized as follows. One preliminary objection, in the nature of a demurrer, seeks dismissal of plaintiff's breach of contract count, asserting that "[t]he Complaint fails to allege or aver any facts, which indicate that the Plaintiff has completed the work required under the contract,'d3 that "payments were to be made by Defendants upon acceptance of the Plaintiff's work by the Township and the release of monies held under a completion bond,'d4 that "[a]s monies were released periodically by the Township as the work progressed, Defendants paid the Plaintiff,'dS that "Defendant will pay any remaining balance of the original, contract once the Township has approved the work and released additional monies,''16 and that "[u]nder the clear and express terms of the contract, Defendants are not in breach of said contract.'d7 12 Plaintiff' s complaint, paragraphs 15-16. 13 Preliminary Objections of the Defendants paragraph 3. ~4 Id., paragraph 6. 15 Id., paragraph 7. 16 Id., paragraph 8. 17 Id., paragraph 9. to the Plaintiff's Complaint, 4 A second preliminary objection, also in the nature of a demurrer, seeks dismissal of plaintiff's claim for damages under Pennsylvania's Contractor and Subcontractor Payment Act, because of the absence of any contractual breach on the part of defendants as stated above.~8 The third preliminary objection seeks a direction that plaintiff's claim for damages under the Contractor and Subcontractor Payment Act be segregated into a count separate from the breach of contract claim.19 DISCUSSION Preliminary objections in nature of demurrer. Preliminary objections in the nature of a demurrer may be sustained and a claim of a plaintiff dismissed where it appears that the claim lacks merit as a matter of law? However, a claim., should be dismissed on a demurrer "only in clear cases.''2~ In order to sustain a demurrer, it is essential that an opponent's pleading indicate on its face that his claim ... cannot be sustained. The question to be decided is ... whether, upon the facts averred, it shows with certainty that the law will not uphold the pleading? ~8 Preliminary Objections of the Defendants to the Plaintiff's Complaint, paragraphs 11-15. ~9 Id., paragraphs 16-18. 20 Philmar Mid-Atlantic, Inc. v. York Street Associates II, 389 Pa. Super. 297, 302, 566 A.2d 1253, 1255 (1989). 2~ Graham v. Pinckiney, 125 Pa. Commw. 233,235,557 A.2d 60, 61 (1989). 22 2 Goodrich-Amram 2d §1017(b):27, at 271 (1991). In ruling upon a preliminary objection in the nature of a demurrer, the court "must accept as true all well-pled allegations and material facts averred in the complaint as well as inferences reasonably deducible therefrom and any doubt should be resolved in favor of overruling the demurrer.''23 "The question presented by a demurrer is whether, on the facts alleged, the law says with certainty that no recovery is possible.''24 In addition, "[i]t is well settled ... that a demurrer cannot be a 'speaking demurrer' and cannot be used to supply a fact missing in the complaint." Johnston v. Lehman, 148 Pa. Commw. 98, 102, 609 A.2d 880, 882 (1992). In the present case, the terms of the alleged written agreement between the parties, and their alleged practice under the agreement whereby defendants paid, plaintiff as invoices were submitted, suggest the existence of a factual issue as to the intended condition(s) precedent for payment by defendants. The complaint does not, however, show on its face and with certainty that no recovery on the part of plaintiff is possible due to the manifest absence of a breach by defendants. Furthermore, additional facts averred in Defendants' preliminary objections may not be employed by the court to supplement the record for purposes of disposition of the matter. For these reasons, defendants' preliminary objections in the nature of a demurrer will be denied. 23 Tiedeman v. City of Philadelphia, 732 A.2d 696, 698 (Pa. Commw. 1999). 24 Feigley v. Department of Corrections, 731 A.2d 220, 222 n.5 (Pa. Commw. 1999). 6 Inclusion of claim for damages under Pennsylvania's Contractor and Subcontract Payment Act in Breach of Contract Count. Under Pennsylvania's Contractor and Subcontractor Payment Act, where a contract is subject to the provisions of the act, "[p]erformance by a contractor ... in accordance provisions of a contract shall entitle the contractor ... to payment from with whom the contractor ... has contracted.''25 The act further provides: with the the party (a) Penalty for failure to comply with act.--If arbitration or litigation is commenced to recover payment due under this act and it is determined that an owner, contractor or subcontractor has failed to comply with the payment terms of this act, the arbitrator or court shall award, in addition to all other damages due, a penalty equal to 1% per month of the amount that was wrongfully withheld. An amount shall not be deemed to have been wrongfully withheld to the extent it bears a reasonable relation to the value of any claim held in good faith by the owner, contractor or subcontractor against whom the contractor or subcontractor is seeking to recover payment. (b) Award of attorney fee and expenses.-- Notwithstanding any agreement to the contrary, the substantially prevailing party in any proceeding to recover any payment under this act shall be awarded a reasonable attorney fee in an amount to be determined by the court or arbitrator, together with expenses.26 Pennsylvania Rules of Civil Procedure 1020(a) and 1020(d)(1) provide as follows: The plaintiff may state in the complaint more than one cause of action against the same defendant heretofore asserted 25 Act of February 17, 1994, P.L. 73, {}4, 73 P.S. {}504 (1999 Supp.). 26 Act of February 17, 1994, P.L. 73, {}13, 73 P.S. {}513 (1999 Supp.). 7 in assumpsit or trespass. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief. If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person. Finally, Pennsylvania Rule of Civil Procedure 126 provides for flexibility with respect to application of the rules of procedure where substantial rights of the parties will not be affected. This rule reads as follows: The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties. ~ In this case, if plaintiff is correct that the alleged agreement of the parties is encompassed by the Contractor and Subcontractor Payment Act, it would appear that the contractual breach claimed by plaintiff could support relief on a common law theory as well as under the act. Although the alleged breach could have been recited in separate counts, distinguished by different ad damnum clauses, it does not appear that the joinder of more than one form of requested relief in a single count will substantially affect the rights of defendants herein. The court will therefore decline to further delay the determination of the action by directing that plaintiff amend the complaint to segregate the claims. 8 AND NOW, this defendants' preliminary ORDER OF COURT 23rd day of November, 1999, upon consideration of objections to plaintiff's complaint, and for the reasons stated in the accompanying opinion, the preliminary objections are denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Theodore A. Adler, Esq. Thomas O. Williams, Esq. 2331 Market Street Camp Hill, PA 17011 Attorneys for Plaintiff James D. Hughes, Esq. Mark D. Schwartz, Esq. 60 West Pomfret Street Carlisle, PA 17013 Attorneys for Defendants :rc 9