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Home My WebLink About2008-4492 Civil DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY’S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION—LAW : ABOUT TIME SNOW : REMOVAL, : Defendant : NO. 2008-103 CIVIL TERM ___________________________________________________ DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY’S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION—LAW : ABOUT TIME SNOW : REMOVAL, : Defendant : NO. 2008-4491 CIVIL TERM ___________________________________________________ DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY’S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v.: CIVIL ACTION—LAW : ABOUT TIME SNOW : REMOVAL, : Defendant : NO. 2008-4492 CIVIL TERM IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, OLER and GUIDO, JJ. OPINION and ORDER OF COURT OLER, J., January 8, 2009. 1 In these consolidated civil cases, (a) Plaintiff, a snow remover, has sued Defendant, another snow remover, for payment for certain snow removal projects 2 which Plaintiff allegedly performed on Defendant’s behalf, (b) Defendant has counterclaimed on the basis of an allegedly deficient performance of the projects 3 by Plaintiff, and (c) Plaintiff has “counterclaim[ed] to Defendant’s counterclaim” on the basis of Defendant’s failure to comply with its obligations to a 4 subcontractor under Pennsylvania’s Contractor and Subcontractor Payment Act. 5 For disposition at this time is Plaintiff’s motion for judgment on the pleadings. Plaintiff’s motion was argued on December 3, 2008. For the reasons stated in this opinion, the motion will be denied. STATEMENT OF FACTS Procedural history. The procedural history of these cases has been well summarized in the brief by Plaintiff’s counsel, Bryan W. Shook, Esq., as follows: Docket Number 2008-103 was commenced before the Honorable Thomas A. Placey, Magisterial District Number 09-3-04 on May 29, 2007. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a/ Woody’s, the case was assigned Docket Number 2008-103 in the Court of Common Pleas of Cumberland County. A Complaint in Docket Number 1 See Order of Court, August 21, 2008. 2 Plaintiff’s Complaint, No. 08-103 Civil Term, filed March 4, 2008; Plaintiff’s Amended Complaint, No. 08-4491 Civil Term, filed February 11, 2008; Plaintiff’s Amended Complaint, No. 08-4492 Civil Term, filed February 11, 2008. 3 Defendant’s Answer to Plaintiff’s Complaint, No. 08-103 Civil Term, filed April 14, 2008; Defendant’s Answer to Plaintiff’s Amended Complaint, No. 08-4491 Civil Term, filed April 10, 2008; Defendant’s Answer to Plaintiff’s Amended Complaint, No. 08-4492 Civil Term, filed April 10, 2008. 4 Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-103 Civil Term, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4491 Civil Term, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4492 Civil Term, filed May 6, 2008; 5 Plaintiff’s Motion for Judgment on the Pleadings, filed November 12, 2008. 2 2008-103 was filed on March 4, 2008. An Answer with New matter and Counterclaim was filed by Defendant, in Docket Number 200-103, on April 14, 2008. An Answer to Defendant’s New Matter and Counterclaim and New Matter and a Counterclaim to Defendant’s Counterclaim was filed by Plaintiff, in Docket Number 2008-103, on or about May 6, 2008. An Answer to Plaintiff’s New Matter and Counterclaim to Defendant’s Counterclaim was filed by Defendant on June 6, 2008. Docket Number 2008-4491 was commenced before the Honorable Michael J. Smith, Magisterial District Number 12-2-01, on May 29, 2007 in Dauphin County, Pennsylvania. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody’s, the case was assigned Docket Number 2007-CV-10211-DJ in the Court of Common Pleas of Dauphin County and was according[ly] transferred to this Honorable Court (Docket Number 2008-4491) pursuant to an Order of the Honorable Bruce Batton on July 1, 2008. A Complaint in Docket Number 2008-4491 was filed on November 27, 2007. An Amended Complaint in Docket Number 2008- 4491 was filed on February 11, 2008. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4491, on April 10, 2008. An Answer to Defendant’s New Matter and Counterclaim and New Matter and a Counterclaim to Defendant’s Counterclaim was filed by Plaintiff, in Docket Number 2008-4491, on or about May 6, 2008. An Answer to Plaintiff’s New Matter and Counterclaim to Defendant’s Counterclaim was filed by Defendant on June 6, 2008. Docket Number 2008-4492 was commenced before the Honorable Joseph S. Lindsey, Magisterial District Number 12-1-06, on May 29, 2007 in Dauphin County, Pennsylvania. Upon appeal of the Judgment in favor of Plaintiff, Donald Wood d/b/a Woody’s, the case was assigned Docket Number 2007-CV-9906-DJ in the Court of Common Pleas of Dauphin County and was according[ly] transferred to this Honorable Court (2008- 4492) pursuant to an Order of the Honorable Judge Bratton on July 1, 2008. A Complaint in Docket Number 2008-4492 was filed on November 27, 2007. An Amended Complaint in Docket Number 2008-4492 was filed on February 11, 2008. An Answer with New Matter and Counterclaim was filed by Defendant, in Docket Number 2008-4492, on April 10, 2008. An Answer to Defendant’s New Matter and Counterclaim and New Matter and a Counterclaim to Defendant’s Counterclaim was filed by Plaintiff, in Docket Number 2008-4492, on or about may 6, 2008. An Answer to Plaintiff’s New Matter and Counterclaim to Defendant’s Counterclaim was filed by Defendant on June 6, 2008. All pleadings are closed with respect to the above-captioned matters. All of the captioned matters were consolidated pursuant to [a Cumberland 6 County] Order dated August 21, 2008. Allegations of pleadings. In these cases, Plaintiff alleges a failure to pay on 7 the part of Defendant for snow removal projects at various Home Depot stores. 6 Brief of Plaintiff on Plaintiff’s Motion for Judgment on the Pleadings, submitted November 12, 2008, at 1-3. 3 Home Depot had allegedly engaged Defendant to perform, or cause to be 8 performed, these services. The complaint/amended complaints sound in breach of 9 contract. Defendant’s answers with new matter and counterclaim, when read as a whole, allege that the work performed by Plaintiff was so unsatisfactory that the various Home Depot stores had to engage alternative snow removal services, the 10 costs of which Home Depot billed to Defendant. Defendant’s counterclaims 11 sound in breach of contract. Plaintiff’s replies to Defendant’s answers with new matter and 12 counterclaim each contain (a) a “Counterclaim to Defendant’s Counterclaim” 7 Plaintiff’s Complaint, No. 08-103 Civil Term, ¶11-15, filed March 4, 2008; Plaintiff’s Amended Complaint, No. 08-4491 Civil Term, ¶109-13, filed February 11, 2008; Plaintiff’s Amended Complaint, No. 08-4492 Civil Term, ¶10-13, filed February 11, 2008. 8 Plaintiff’s Complaint, No. 08-103 Civil Term, ¶7, filed March 4, 2008; Plaintiff’s Amended Complaint, No. 08-4491 Civil Term, ¶7, filed February 11, 2008; Plaintiff’s Amended Complaint, No. 08-4492 Civil Term, ¶7, filed February 11, 2008. 9 Plaintiff’s Complaint, No. 08-103 Civil Term, ¶16, filed March 4, 2008; Plaintiff’s Amended Complaint, No. 08-4491 Civil Term, ¶14, filed February 11, 2008; Plaintiff’s Amended Complaint, No. 08-4492 Civil Term, ¶14, filed February 11, 2008. 10 Defendant’s Answer to Plaintiff’s Complaint, No. 08-103 Civil Term, ¶30-35, filed April 14, 2008; Defendant’s Answer to Plaintiff’s Amended Complaint, No. 08-4491 Civil Term, ¶26-32, filed April 10, 2008; Defendant’s Answer to Plaintiff’s Amended Complaint, No. 08-4492 Civil Term, ¶26-32, filed April 10, 2008. 11 Defendant’s Answer to Plaintiff’s Complaint, No. 08-103 Civil Term, ¶35, filed April 14, 2008; Defendant’s Answer to Plaintiff’s Amended Complaint, No. 08-4491 Civil Term, ¶32, filed April 10, 2008; Defendant’s Answer to Plaintiff’s Amended Complaint, No. 08-4492 Civil Term, ¶32, filed April 10, 2008. 12 Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-103 Civil Term, ¶61-77, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4491 Civil Term, ¶58-74, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4492 Civil Term, ¶58-74, filed May 6, 2008. Whether a “counterclaim to a counterclaim” is a permissible pleading is beyond the scope of this opinion. See Pa. R.C.P. 1017(a) (pleadings allowed). 4 13 and (b) various defenses to Defendant’s counterclaim. In the counterclaim to a counterclaim, Plaintiff purports to assert a cause of action against Defendant in Plaintiff’s capacity as a “subcontractor” of Defendant under Pennsylvania’s 14 Contractor and Subcontractor Payment Act. Specifically, it is alleged that Defendant failed to notify Plaintiff of deficiencies in Plaintiff’s performance as a “subcontractor” within seven days after receipt of notice of the deficiencies, as 15 required by Section 511(b) of the Act. Among the defenses to Defendant’s counterclaim, Plaintiff cites the 16 aforesaid notice provision of the Pennsylvania statute and apparently also advances an impossibility-of-performance argument as to some of Plaintiff’s work, based upon a certain “proclamation of disaster emergency” issued by the 17 Governor of Pennsylvania. 13 Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-103 Civil Term, ¶37-43, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4491 Civil Term, ¶34-40, Filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4492 Civil Term, ¶34-40, filed May 6, 2008. 14 Act of February 17, 1994, P.L. 73, 73 P.S. §§501-516. 15 Act of February 17, 1994, P.L. 73, §11(b), 73 P.S. §511(b). 16 Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-103 Civil Term, ¶54, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4491 Civil Term, ¶51, Filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4492 Civil Term, ¶51, filed May 6, 2008. 17 Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-103 Civil Term, ¶58-60, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4491 Civil Term, ¶55-57, filed May 6, 2008; Plaintiff’s Reply to Defendant’s New Matter and Counterclaim, Plaintiff’s New Matter to Defendant’s Counterclaim and Plaintiff’s Counterclaim to Defendant’s Counterclaim, No. 08-4492 Civil Term, ¶55-57, filed May 6, 2008. 5 DISCUSSION Statement of law. “When ruling on a motion for judgment on the pleadings . . . , [the court] must view all of the opposing party’s allegations as true, and only those facts that the opposing party has specifically admitted may be considered against the opposing party. We may consider only the pleadings themselves and any documents properly attached thereto. We may grant a motion for judgment on the pleadings only when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law.” Parish v. Horn, 768 A.2d 1214, 1215 n.1 (Pa. Commw. 2001), aff’d, 569 Pa. 45, 800 A.2d 294 (2002) (citations omitted). A motion for judgment on the pleadings which seeks to conclude the litigation in question is not, of course, a proper substitute for a motion for a more specific pleading. Cf. Garrett Electronics Corp. v. Conwell, 46 Cumberland L.J. 256, 260 (1997) (“claim should not be stricken or dismissed for mere lack of specificity”) (citation omitted). In addition, under Pennsylvania Rule of Civil Procedure 126, it is provided that [t]he rules [of civil procedure] shall be liberally construed to secure the just, speedy and expensive 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. Finally, the Pennsylvania Contractors and Subcontractors Payment Act 18 applies to “construction contracts,” and a subcontractor is defined as “[a] person who has contracted to furnish labor or materials to, or has performed labor for, a contractor or another subcontractor in connection with a contract to improve real 19 property.” 18 Act of February 17, 1994, P.L. 73, §15, 73 P.S. §515. 19 Act of February 17, 1994, P.L. 73, §2, 73 P.S. §502. 6 Application of law to facts. In the present case, while Defendant’s responses to Plaintiff’s allegations in the pleadings are in some instances deficient in terms of specificity and, in others, more substantively at variance with the procedural requirements as to affirmative denials, a fair reading of Defendant’s pleadings as a whole reveals the existence of genuine issues of material fact as to the quality of Plaintiff’s work on the projects at issue. Similarly, the question of whether the circumstances surrounding a proclamation of the governor somehow rendered Plaintiff’s performance on some of the projects impossible, and the question of whether snow removal by Plaintiff rose to the level of engagement in a “construction contract” involving “the improvement of real property,” are more properly disposed of on a more developed record than the current pleadings. For these reasons, the following order will be entered: ORDER OF COURT th AND NOW, this 8 day of January, 2009, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings in the above-captioned cases, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, s/ J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. Bryan W. Shook, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Greg Mitsch, Esq. Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Attorney for Defendant 7 8 DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY’S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION—LAW : ABOUT TIME SNOW : REMOVAL, : Defendant : NO. 2008-103 CIVIL TERM ___________________________________________________ DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY’S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : v. : CIVIL ACTION—LAW : ABOUT TIME SNOW : REMOVAL, : Defendant : NO. 2008-4491 CIVIL TERM ___________________________________________________ DONALD WOOD, d/b/a : IN THE COURT OF COMMON PLEAS OF WOODY’S, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff : : vi.: CIVIL ACTION—LAW : ABOUT TIME SNOW : REMOVAL, : Defendant : NO. 2008-4492 CIVIL TERM IN RE: PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS BEFORE HESS, OLER and GUIDO, JJ. ORDER OF COURT th AND NOW, this 8 day of January, 2009, upon consideration of Plaintiff’s Motion for Judgment on the Pleadings in the above-captioned cases, and for the reasons stated in the accompanying opinion, the motion is denied. BY THE COURT, _________________ J. Wesley Oler, Jr., J. Bryan W. Shook, Esq. 2132 Market Street Camp Hill, PA 17011 Attorney for Plaintiff Greg Mitsch, Esq. Benstead & Mabon, P.C. 124 East Court Street Doylestown, PA 18901 Attorney for Defendant