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HomeMy WebLinkAbout2004-2854 Civil NORMAN MORACE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant NO. 04-2854 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., June 1,2005. This case arises out of a contract between Plaintiff Norman Morace and Defendant Musser & Associates, Inc., for the construction of a pole building on Plaintiff's property. Defendant allegedly breached its contract with Plaintiff to construct a thirty- by sixty-foot pole building on Plaintiff s property. 1 Plaintiff filed a Complaint,2 to which Defendant filed preliminary objections. 3 Defendant then withdrew its preliminary objections4 and filed an Answer and New Matter to Plaintiff s Complaint. 5 Plaintiff filed a Response to Defendant's New Matter, 6 and later filed a Motion for Summary Judgment against Defendant. 7 Defendant filed an 1 See P1.'s Comp1. ~~ 20-25, filed June 21,2004 (hereinafter P1.'s Comp1. ~. 2 See PI.' s Comp1. 3 Defendant's preliminary objections were based upon Plaintiffs failure to attach a copy of the contract to the Complaint pursuant to Pa. RC.P. 1019. See Preliminary Objections of Defendant Musser & Associates, Inc., t/a Fetterville Sales, filed July 14,2004. 4 See Praecipe, filed Aug. 5,2004. 5 See Defendant Musser & Associates, Inc. t/a Fetterville Sales' Answer and New Matter, filed Aug. 5, 2004 (hereinafter Def.'s Answer & New Matter ~. 6 See Plaintiffs Response to Defendant's New Matter, filed Aug. 16,2004 (hereinafter P1.'s Response to New Matter ~. 7 See Plaintiff Norman Morace's Motion for Summary Judgment Against Defendant Musser & Associates, Inc. t/a Fetterville Sales, filed Jan. 10,2005 (hereinafter P1.'s Motion for Summary Judgment ~. answer to Plaintiffs Motion for Summary Judgment.8 No depositions or affidavits have been filed of record. For disposition at this time is Plaintiffs Motion for Summary Judgment. For the reasons stated in this opinion, Plaintiffs Motion for Summary Judgment will be denied. STATEMENT OF FACTS Plaintiff is Norman Morace, who currently lives at 1544 Seltzer Court, Mechanicsburg, Cumberland County, Pennsylvania.9 Defendant is Musser & Associates, Inc. t/a Fetterville Sales, a Pennsylvania business corporation with its principal place of business located at 245 Fetterville Road, East Earl, Lancaster County, Pennsylvania.10 On May 29, 2003, Plaintiff entered into a contract with Defendant for the construction of a pole building on Plaintiff s property. 11 Defendant originally quoted Plaintiff a price of $25,300.00 for construction of the building, which was later amended to $29,260.00.12 Plaintiff has paid the $29,260.00 contract price in full. 13 According to the contract, the dimensions of the pole building were to be thirty feet by sixty feet, with an inside ceiling height of fourteen feet. 14 The building was to include thirteen-foot high overhead doors.15 Preparation of the building site for construction, including the excavation, fill, and pouring of the concrete floor, was Plaintiff s responsibility. 16 Plaintiff contracted with a cement contractor who had previously worked with and was recommended by Defendant to have the building's floor 8 See Answer of Defendant Musser & Associates, Inc., t/a Fetterville Sales in Response to Plaintiff Norman Morace's Motion for Summary Judgment, filed Feb. 7, 2005 (hereinafter Def.'s Answer to Summary Judgment Motion ~. 9 P1.'s Comp1. ~ 1; Def.'s Answer & New Matter ~ 1. 10 P1.'s Comp1. ~ 2; Def.'s Answer & New Matter ~ 2. 11 PI.' s Comp1. ~ 5, Ex. A; Def.' s Answer & New Matter ~ 5. 12 P1.'s Comp1. ~ 13, Ex. B; Def.'s Answer & New Matter ~ 13. 13 P1.'s Comp1. ~ 14; Def.'s Answer & New Matter ~ 14. 14 P1.'s Comp1. ~~ 5-6, Ex. A; Def.'s Answer & New Matter ~~ 5-6. 15 P1.'s Comp1. ~ 6, Ex. A; Def.'s Answer & New Matter ~ 6. 16 PI. ' s Comp1. ~ 9, Ex. A; Def.' s Answer & New Matter ~ 9. poured.17 According to Plaintiff, the concrete was poured so that the floor's surface was level with the bottom of the building's doors. IS Plaintiff has alleged that Defendant breached the parties' contract by failing to construct the pole building as specified in the parties' contract.19 Specifically, Plaintiff has alleged that the inside ceiling height was not fourteen feet, but rather thirteen feet, seven inches,20 making it impossible for Plaintiff to install door drivers to operate the overhead doorS?1 Additionally, Plaintiff has alleged that Defendant improperly installed the torsion springs for the overhead doors, causing the wires that raise and lower the doors to wrap around each other and wear.22 Plaintiff has claimed that he has suffered damages in excess of $50,000.00 as a result of Defendant's alleged failure to properly construct the pole building.23 Included in these damages are the costs of removing the current building, breaking up and removing the concrete foundation, and constructing a new pole building. 24 Defendant, on the other hand, has alleged that it performed the contract as specified, constructing for Plaintiff a pole building with an inside ceiling height of fourteen feet. 25 According to Defendant, it was responsible for construction of the walls, roof, and trim of the building, but, according to Defendant, installation of the building's floor-including the type and depth of the floor-was the responsibility of Plaintiff.26 Additionally, Defendant has claimed it informed Plaintiff that the concrete floor would have to be poured below the building's base in order to maintain an inside ceiling height 17 P1.'s Comp1. ~ 10; Def.'s Answer & New Matter ~ 10. 18 P1.'s Comp1. ~ 11-12. 19 P1.'s Comp1. ~~ 20-25. 20 P1.'s Comp1. ~~ 15,24. 21 P1.'s Comp1. ~~ 15, 18. 22 P1.'s Comp1. ~~ 16,24. 23 P1.'s Comp1. ~~ 19,25. 24 PI. ' s Comp1. ~ 25. 25 Def.'s Answer & New Matter ~ 37. 26 Def.'s Answer & New Matter ~~ 42-43. of fourteen feet. 27 Thus, Defendant has alleged that it was Plaintiff s miscalculation concerning the proper depth of the concrete floor, and Plaintiff s subsequent installation of the floor at an improper depth, that caused the building's inside ceiling to be of insufficient height. 28 Alternatively, Defendant has argued that, even if Plaintiff wanted to have an inside ceiling height of fourteen feet after Plaintiff had improperly poured the concrete floor, East Pennsboro Township's restrictions on the height of accessory buildings would have precluded Defendant from raising the height of Plaintiff s building unless Plaintiff had received an exemption from East Pennsboro Township in this regard?9 Finally, Defendant has denied that the torsion springs for the overhead doors were improperly installed, or that any damage resulting to the wires that raise and lower the doors was the result of Defendant's installation of the springs.30 Plaintiff has denied all of Defendant's allegations concerning Plaintiff s alleged improper installation of the concrete floor. 31 Specifically, Plaintiff has alleged that Defendant did not construct the pole building as specified, as Defendant constructed a building with an inside ceiling height of less than fourteen feet. 32 Furthermore, Plaintiff has asserted that the concrete floor was poured in accordance with Defendant's specifications, that Defendant never instructed Plaintiff to pour the floor below the building's base, and that an instruction to pour the concrete floor below the building's base would have been illogical. 33 Thus, Plaintiff has alleged that it was Defendant's, and 27 Def.'s Answer & New Matter ~ 39. 28 Def.'s Answer & New Matter ~~ 38-39,42-44. 29 Def.'s Answer & New Matter ~~ 40-41. 30 Def. ' s Answer & New Matter ~~ 16-17. 31 P1.'s Response to New Matter ~~ 38-39,42-44. 32 PI. ' s Response to New Matter ~ 37. 33 P1.'s Comp1. ~ 11; P1.'s Response to New Matter ~~ 38-39,42. not Plaintiff s, miscalculation of the depth of the concrete floor that has caused the inside ceiling height to be less than the fourteen feet provided for in the parties' contract. 34 Both parties have submitted briefs on Plaintiff's Motion for Summary Judgment. 35 The matter was argued before the court on May 4,2005. DISCUSSION Statement of Law Motion for Summary Judgment. Under Pennsylvania Rule of Civil Procedure 1035.2, it is provided as follows with respect to summary judgment: After the relevant pleadings are closed, but within such time as not to umeasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. RC.P. 1035.2. On a motion for summary judgment, the record includes any pleadings, depositions, answers to interrogatories, admissions, affidavits, and expert reports. Pa. RC.P. 1035.1. However, attachments to a brief are not part of the record for purposes of a motion for summary judgment. See Freed v. Allstate Insurance Co., 45 Cumberland L.1. 272 (1996); cf McAllonis v. Pryor, 301 Pa. Super. 473, 448 A.2d 5 (1982). Pleadings are defined as "a complaint, an answer thereto, a reply if the answer contains 34 PI. ' s Response to New Matter ~ 44. 35 Plaintiff Norman Morace's Brief in Support of His Motion for Summary Judgment Against Defendant, filed Apr. 19,2005; Defendant Fetterville Sales' Brief in Opposition to Summary Judgment, filed May 3, 2005. new matter or a counterclaim, a counter-reply if the reply to a counterclaim contains new matter, a preliminary objection and an answer thereto." Pa. RC.P. 1017. When considering whether summary judgment is proper, a court must examine the record in the light most favorable to the non-moving party, resolving all doubts against the moving party. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996). Additionally, '''[a]n entry of summary judgment may be granted only in cases where the right is clear and free of doubt. ", Id (citing Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370,562 A.2d 279, 280 (1989)). Nevertheless: [T]he adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within thirty days after service of the motion identifying (1) one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or (2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced. Pa. RC.P. 1035.3. Breach of Contract. "A cause of action for breach of contract must be established by pleading (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages." Corestates Bank v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. Ct. 1999). Application of Law to Facts In his Motion for Summary Judgment, Plaintiff has alleged that Defendant breached the parties' contract by failing to construct a pole building with the proper inside ceiling height and failing to properly install the torsion springs on the overhead doors.36 Defendant has responded to Plaintiffs Motion for Summary Judgment, arguing that it was the unilateral actions of Plaintiff, specifically Plaintiff s improper pouring of 36 See P1.'s Motion for Summary Judgment. the concrete floor, that caused the inside ceiling height of the building to be less than fourteen feet, and that the torsion springs on the overhead doors were properly installed. 37 The record in this case consists of Plaintiffs Complaint, Defendant's Answer & New Matter, Plaintiffs Response to New Matter, Plaintiffs Motion for Summary Judgment, and Defendant's Answer to Plaintiff's Motion for Summary Judgment. 38 In construing the record in the light most favorable to Defendant, the court must accept the following facts as true: First, Defendant properly installed the torsion springs on the building's overhead doors.39 Second, Defendant constructed a pole building with an inside ceiling height of fourteen feet on Plaintiffs property.40 Third, any insufficiencies in the inside ceiling height of the building were caused by Plaintiff s failure to properly pour the building's concrete floor, a process for which Defendant was not responsible under the parties' contract.41 In the court's opinion, the record in this case is sufficient to establish a genuine issue of material fact with respect to the question of whether Defendant breached its contract with Plaintiff to construct a pole building on Plaintiff s property with an inside ceiling height of fourteen feet. Therefore, Plaintiff s Motion for Summary Judgment must be denied. The following order will be entered: ORDER OF COURT AND NOW, this 1st day of June, 2005, after a careful examination of the record, briefs submitted by counsel, following oral argument held on May 4, 2005, and for the reasons stated in the above opinion, Plaintiff s Motion for Summary Judgment is denied. 37 See Def.' s Answer to Summary Judgment Motion. 38 Plaintiffs document entitled Reproduced Record of Plaintiff, Norman Morace, in Support of Plaintiffs Motion for Summary Judgment, which was attached to Plaintiffs brief in support of the summary judgment motion, is not part of the record. 39 Def. ' s Answer & New Matter ~~ 16-17, 24. 40 Def.'s Answer & New Matter ~~ 24,37. 41 Def.'s Answer & New Matter ~~ 38-39,42-44. BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Peter M. Good, Esq. Susan M. Zeamer, Esq. Smigel, Anderson & Sacks, L.L.P. River Chase Office Center 4431 North Front Street Harrisburg, P A 17110 Attorneys for Plaintiff Melvin H. Hess, Esq. Timothy E. Shawaryn, Esq. Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, P A 17602 Attorneys for Defendant NORMAN MORACE, Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW MUSSER & ASSOCIATES, INC., t/a FETTERVILLE SALES, Defendant NO. 04-2854 CIVIL TERM IN RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT BEFORE BAYLEY and OLER, JJ. ORDER OF COURT AND NOW, this _ day of May, 2005, after a careful examination of the record, briefs submitted by counsel, following oral argument held on May 4, 2005, and for the reasons stated in the accompanying opinion, Plaintiff s Motion for Summary Judgment is denied. BY THE COURT, 1. Wesley Oler, Jr., 1. Peter M. Good, Esq. Susan M. Zeamer, Esq. Smigel, Anderson & Sacks, L.L.P. River Chase Office Center 4431 North Front Street Harrisburg, P A 17110 Attorneys for Plaintiff Melvin H. Hess, Esq. Timothy E. Shawaryn, Esq. Gibbel, Kraybill & Hess 41 East Orange Street Lancaster, P A 17602 Attorneys for Defendant