HomeMy WebLinkAbout2009-752 Civil
WHISLER’S WELL DRILLING, : IN THE COURT OF COMMON PLEAS OF
INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION
:
DENNIS BURKETT :
Defendant : NO. 2009-752 Civil Term
IN RE: PLAINTIFF’S PRELIMINARY OBJECTIONS TO
DEFENDANT’S COUNTERCLAIM
BEFORE HESS, OLER and GUIDO, JJ.
OPINION and ORDER OF COURT
OLER, J., May 27, 2009.
In this civil case involving a residential construction project in Cumberland
County, Pennsylvania, Plaintiff Whisler’s Well Drilling (“Whisler’s” or “Plaintiff”) filed
a complaint against Defendant Dennis Burkett (“Burkett” or “Defendant”) seeking
recovery of payment allegedly due for work, labor, equipment and materials. In
response, Defendant filed a counterclaim asserting breach of contract, negligence and
violations of the Unfair Trade Practices Consumer Protection Law (“UTPCPL”).
Plaintiff has filed preliminary objections to Defendant’s counterclaim. In its preliminary
objections, Plaintiff requests that Defendant plead with more specificity his claims of
negligence and violations of the UTPCPL.
The preliminary objections were argued before this court on April 29, 2009. For
the reasons stated in this opinion, Plaintiff’s preliminary objections will be denied.
STATEMENT OF FACTS
1
The allegations of Plaintiff’s complaint may be summarized as follows: Plaintiff
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Whisler, a Pennsylvania Corporation located in Newville, Pennsylvania, entered into an
1
In summarizing these allegations, the court is in no way expressing an opinion as to their veracity.
2
Complaint, ¶1, filed March 3, 2009.
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oral contract with Defendant Burkett in December, 2007. Under the terms of the
contract, Defendant was to pay Plaintiff for time and materials, plus a 36% mark-up, for
5
the necessary work to complete the project. Plaintiff began and completed the trench
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excavation and installation of the pump. Thereafter, on January 31, 2008, Plaintiff sent
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Defendant an invoice totaling $35,241.12. The invoice provided a description and price
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for all labor and materials used in the project. On April 21, 2008, Defendant made a
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payment to Plaintiff in the amount of $27,678.36. Plaintiff claims that Defendant still
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owes $7,562.76, plus interest.
On March 12, 2009, in response to Plaintiff’s complaint, Defendant filed an
Answer, New Matter and Counterclaim. In it, Defendant asserts that Plaintiff never
actually completed the excavation and installation of the pump, and that “the work which
was performed was not workmanlike or in accordance with standard and acceptable
11
methods and means for the performance of such work.” Thus, according to Defendant,
12
Plaintiff is not entitled to the invoiced amount of $35,241.12.
Defendant also asserts that, even if the work had been completed as expected, the
invoiced amount of $35,241.12 is not in conformance with the amount agreed upon by
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the parties. Defendant claims that, prior to Plaintiff’s commencement of work on the
3
According to Defendant, the contract entered into by the parties was not an oral contract, but instead was
a “written agreement,” dated December 6, 2007. The agreement was titled “Estimate” and is included in
Defendant’s Answer as Exhibit 1. Answer, New Matter and Counterclaim, ¶3, filed March 12, 2009.
4
Complaint, ¶3.
5
Complaint, ¶4.
6
Complaint, ¶5.
7
Complaint, ¶6.
8
Complaint, ¶7.
9
Complaint, ¶8.
10
Complaint, ¶¶9-10.
11
Answer, ¶5.
12
Answer, ¶¶6-9.
13
Answer ¶¶6-9; New Matter ¶¶ 17-20.
2
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project, Plaintiff presented Defendant with a price quote of $32,941.00, which reflected
15
a cost plus one-hundred percent mark-up on labor and materials. After a discussion
between the two parties, Plaintiff agreed to reduce the mark-up to thirty-five percent, and
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provided Defendant with a revised price quote of $28,924.00, according to Defendant.
Defendant asserts that the second price quote was presented to him as a “not to exceed”
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quotation from Plaintiff.
Additionally, Defendant claims that Plaintiff invoiced him for materials which
were never provided to the work site, such as 900 feet of copper wire at an invoiced
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amount of $2,898.00. Defendant further claims that Plaintiff caused damages to the
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work site which will cost approximately $400.00 to repair, and that Plaintiff agreed to
give to Defendant the manuals, instructions and warranties for the equipment and
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materials provided, but that no such documents have been furnished.
Defendant’s counterclaim consists of three counts – breach of contract, violations
of the UTPCPL and negligence. In Count One for breach of contract, Defendant asserts
the following in support of his claim: (1) the invoiced amount exceeded the amount set
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forth in the parties’ agreement, and failed to be calculated at the agreed-upon rate; (2)
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Plaintiff invoiced Defendant for materials never supplied to the construction site; and
(3) the work performed by Plaintiff breached the implied covenant of workmanship as it
was not installed below the natural frost line, the pump was not operational after Plaintiff
completed its work, and the work was not completed in such a fashion as to permit the
14
New Matter, ¶17.
15
New Matter, ¶19.
16
New Matter, ¶¶17-18.
17
New Matter, ¶18.
18
New Matter, ¶21.
19
New Matter, ¶22.
20
New Matter, ¶23.
21
Counterclaim, ¶28.
22
Counterclaim, ¶31.
3
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township building codes department to accept the work; and (4) Plaintiff failed to
provide work and materials which were workmanlike or in conformance with standard
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methods and means of performing such work.
Defendant’s UTPCPL claim, Count Two, maintains that, in accordance with 73
P.S. §201-1, et seq., the work and materials furnished by Plaintiff were provided for
personal, family or household purposes, and that Plaintiff violated the UTPCPL, as
follows:
(a)Plaintiff made false or misleading statement to [Defendant] concerning
the existence of or amounts of price reductions it would provide to
[Defendant] in violation of 73 P.S. §201-2(4)(xi);
(b)Plaintiff provided services and materials which were to have “uses”
and “benefits” which they did not have in violation of P.S. §201-
2(4)(v); and
(c)Plaintiff’s conduct was deceptive and caused confusion or
misunderstanding as to the costs and expenses to be incurred by
[Defendant] for the work and materials to be provided by Plaintiff in
violation of 73 P.S. §201-2(4)(xxi). Moreover, Plaintiff’s conduct was
deceptive in that it attempted to invoice [Defendant] for materials
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never provided to the work site.
Defendant asserts that, as a direct and proximate result of Plaintiff’s
aforementioned violations of the UTPCPL, he has incurred damages including, but not
limited to, paying for work and materials in excess of the agreed upon amount, costs to
correct the work improperly performed by Plaintiff, costs to complete the project and
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costs to correct damages to the work site caused by Plaintiff.
23
Counterclaim, ¶30.
24
Counterclaim, ¶32.
25
Counterclaim, ¶35.
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Counterclaim, ¶36.
4
Finally, in his claim for negligence, Defendant asserts that Plaintiff had a duty to
perform the work undertaken on the project in a workmanlike manner, but breached its
duty as follows:
(a)the system was to be installed below the natural frost line and Plaintiff
failed to install the system in such a fashion;
(b)the system was not operational after Plaintiff ‘completed’ its work; and
(c)the system was not installed in a manner which [was] acceptable to
27
local building code officials.
Defendant avers that, as a direct and proximate result of Plaintiff’s negligence, Defendant
has incurred multiple damages, including payments made by Defendant for work
performed to install a pump which does not function as intended, costs to correct the
28
work performed improperly by Plaintiff and costs to complete the project.
Plaintiff has filed preliminary objections to Defendant’s counterclaim pursuant to
Rule 1028 of the Pennsylvania Rules of Civil Procedure relating to specificity of
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pleading. Plaintiff requests Defendant to plead more specifically the averments of his
3031
counterclaims for negligence and violations of the UTPCPL. The preliminary
objections were argued before this court on April 29, 2009.
DISCUSSION
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 to support that claim.” Latniak v. Von Koch, 70 Pa. D. &
th
C.4 489, 494 (Lackawanna Co. 2004). “The purpose of the pleadings is to place the
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Counterclaim, ¶40.
28
Counterclaim, ¶¶41-42.
29
Preliminary Objection to Defendant’s Counterclaim, filed April 1, 2009 (hereinafter Preliminary
Objections).
30
Preliminary Objections, ¶¶1-6.
31
Preliminary Objections, ¶¶7-11.
5
[defendant] on notice of the claims upon which [it] will have to defend.” Yacoub v.
Lehigh Valley Medical Associates P.C., 2002 Pa. Super. 251, ¶16, 805 A.2d 579, 588.
Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to object to an
opponent’s pleading for “insufficient specificity.” Pa. R.C.P. 1028(a)(3). As the
Superior Court has stated,
[t]he pertinent question under Rule 1028(a)(3) is ‘whether the complaint is
sufficiently clear to enable the defendant to prepare his defense,’ or
‘whether the plaintiff’s complaint informs the defendant with accuracy and
completeness of the specific basis on which recovery is sought so that he
may know without question upon what grounds to make his defense.
Rambo v. Greene, 2006 Pa. Super. 231, ¶11, 906 A.2d 1232, 1236 (citing Ammlung v.
City of Chester, 224 Pa. Super. 47, 302 A.2d 491, 498 n. 36 (1973)). In doing so, the
court must not simply focus upon one portion of the complaint. Yacoub, 2002 Pa. Super.
at ¶16, 805 A.2d 579, 589. “Rather, in determining whether a particular paragraph in a
complaint has been stated with the necessary specificity, such paragraph must be read in
context with all other allegations in that complaint.” Id. In addition, a preliminary
objection based on lack of specificity may, in certain cases, be denied on the ground that
discovery is a more appropriate vehicle to resolve the matter. See 2 Goodrich-Amram 2d
§1017(b):24, at 268 (1991).
The court finds unpersuasive Plaintiff’s objections as to the sufficiency of the
counterclaim with respect to its specificity. Plaintiff first contends that Defendant failed
32
to plead with sufficient specificity his claim under the UTPCPL. Defendant’s pleading
sets forth the price quotes provided by Plaintiff for the project, a statement as to how the
quotes were calculated and an explanation as to the alleged breach of the final price
quote. To support his pleading, Defendant has appended copies of the quotations as
exhibits. Moreover, Defendant has stated that Plaintiff failed to complete the project, the
pump as installed is not operational and that he was billed for materials never provided to
32
Preliminary Objections, ¶1-6.
6
the worksite. Accordingly, Plaintiff has sufficient notice of the basis of Defendant’s
UTPCPL claim and on what grounds to prepare a defense – namely, Plaintiff’s alleged
false or misleading statements concerning the price quotes as well as Plaintiff’s failure to
adequately complete the project which resulted in the alleged injuries to Defendant listed
33
in his counterclaim.
Similarly, Plaintiff argues that Defendant failed to plead with sufficient specificity
his claim of negligence. However, Defendant has sufficiently identified the respects in
which Plaintiff’s work on the project was the product of carelessness. Defendant claims
that the system was not installed below the natural frost line and was not operational at
the time Plaintiff left the work site, and that township officials would not issue a permit
for the work done by Plaintiff – all of which allegedly resulted in the injuries listed in
Defendant’s counterclaim.
Ultimately, the counterclaim, when read as a whole, is sufficient to plead a course
of conduct which may have been negligent and/or in violation of the UTPCPL.
Therefore, Plaintiff has, in fact, been sufficiently apprised of the nature of the claims
against it and has been provided with sufficient notice of those claims to allow it to
prepare a defense. Further details with respect to the claims will be relegated to the
discovery process and plaintiff’s preliminary objections to Defendant’s counterclaim will
be denied.
Based upon the foregoing, the following order will be entered:
ORDER OF COURT
AND NOW, this day of May, 2009, upon consideration of Plaintiff’s preliminary
objections to Defendant’s counterclaim, and for the reasons stated in the accompanying
opinion, the preliminary objections are denied. Plaintiff is afforded a period of twenty
days from the date of this order within which to file a responsive pleading to Defendant’s
counterclaim.
33
Counterclaim, ¶36-37.
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BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Wayne Melnick, Esquire
36 South Hanover Street
Carlisle, Pennsylvania 17013
Attorney for Plaintiff
David A. Baric, Esquire
19 West South Street
Carlisle, Pennsylvania 17013
Attorney for Defendant
8
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WHISLER’S WELL DRILLING, : IN THE COURT OF COMMON PLEAS OF
INC., : CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiff :
:
v. : CIVIL ACTION
:
DENNIS BURKETT :
Defendant : NO. 2009-752 Civil Term
IN RE: PLAINTIFF’S PRELIMINARY OBJECTIONS TO
DEFENDANT’S COUNTERCLAIM
BEFORE HESS, OLER and GUIDO, JJ.
ORDER OF COURT
th
AND NOW, this 27 day of May, 2009, upon consideration of Plaintiff’s
preliminary objections to Defendant’s counterclaim, and for the reasons stated in the
accompanying opinion, the preliminary objections are denied. Plaintiff is afforded a
period of twenty days from the date of this order within which to file a responsive
pleading to Defendant’s counterclaim.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Wayne Melnick, Esquire
36 South Hanover Street
Carlisle, Pennsylvania 17013
Attorney for Plaintiff
David A. Baric, Esquire
19 West South Street
Carlisle, Pennsylvania 17013
Attorney for Defendant