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HomeMy WebLinkAbout2004-5530 Civil CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-5530 CIVIL MARY THOMPSON, Defendant IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE AMENDED NEW MATTER AND COUNTERCLAIM OPINION AND ORDER On or about September 4,2002, the plaintiff, Custom Patio Rooms of Central Pa, Inc., ("Custom Patio"), entered into a contract with the defendant, Mary Thompson, whereby Custom Patio agreed to build a patio room unto Thompson's residence. Thompson also hired an independent contractor to perform concrete work that was a necessary prerequisite for the work that Custom Patio had agreed to perform. Custom Patio completed the construction of the patio room on June 17,2003. When payment was not forthcoming from Thompson, Custom Patio filed an action with a district justice. Following a judgment in favor of the plaintiff, Thompson appealed the district justice's order. On November 18, 2004, Custom Patio filed a complaint seeking payment under the contract. Thompson filed an answer and new matter and counterclaim on December 13, 2004. Following the filing of preliminary objections by the plaintiff, Thompson filed an amended answer with amended new matter and counterclaim. Custom Patio has filed preliminary objections to Thompson's amended new matter and counterclaim. It is these preliminary objections which are currently before the court. Custom Patio first alleges that defendant Thompson has failed to state a claim under the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL") by failing to NO. 04-5530 CIVIL plead common law fraud. The UTPCPL includes "[ e ]ngaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or misunderstanding" under the definition of "[ u ]nfair methods of competition" and "unfair or deceptive acts or practices." 73 Pa.C.S.A. 201-2(4)(xxi). In 1996, the Pennsylvania legislature broadened the language of the catchall provision to include both fraudulent and deceptive conduct. Despite this revision, the Pennsylvania Superior Court has continued to require proof of common law fraud under the catchall provision. See Booze v. Allstate, Ins. Co., 750 A.2d 877 (Pa.Super. 2000). The Commonwealth Court, on the other hand, has acknowledged the legislature's revision. In Com. v. Percudani, 825 A.2d 743 (Pa.Commw. 2003), the court found the addition of the phrase "deceptive conduct" to be of significance. The Commonwealth Court concluded that proof of common law fraud was not necessary to make out a claim under the UTPCPL. Regardless of the standard to be applied, we are satisfied that the defendant has failed to plead valid claims under the Consumer Protection Law. In her counterclaim, defendant Thompson alleged that plaintiff Custom Patio violated six subsections of the UTPCPL: (v) Representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits or quantities that they do not have or that a person has a sponsorship, approval, status, affiliation or connection that he does not have; (vii) Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another; 2 NO. 04-5530 CIVIL (ix) Advertising goods or services with intent not to sell them as advertised; (xiv) Failing to comply with the terms of any written guarantee or warranty given to the buyer at, prior to or after a contract for the purchase of goods or services is made; (xvi) Making repairs, improvements or replacements on tangible, real or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing; (xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. 73 Pa.C.S.A. 201-2(4)(v), (vii), (ix), (xiv), (xvi), (xxi) (2005). Plaintiff Custom Patio requests that the counterclaim should be dismissed because the counterclaim lacks the requisite specificity. Pa.R.C.P. 1019(a) (2005). "Pennsylvania is a fact-pleading jurisdiction. A complaint must therefore not only give the defendant notice of what the plaintiffs' claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim." Youndt v. First Nat'l Bank of Port, 868 A.2d 539, 544 (Pa. Super. 2005) (citing Sevin v. Kelshaw, 611 A.2d 1232, 1235 (1992)). Pleadings must state the claim with such sufficiency that the defendant can adequately prepare a defense. Id at 545 (citation omitted). The pleadings must also be sufficient enough to demonstrate to the court that the claims are "not merely subterfuge." Id A. Defendant Thompson has failed to sufficiently plead that Custom Patio violated Section 201-2(4)(v), (vii), (ix) of the UTPCPL. 3 NO. 04-5530 CIVIL At the most, defendant Thompson has referred to two advertisements and a letter from Custom Patio. One advertisement states, "When attention to detail counts, you can count on Custom Patio Rooms." The other states, "We will not be satisfied until you are satisfied your room was manufactured and installed beyond your expectations." The letter stated that Custom Patio's work "will bring her many years of enjoyment as well as adding value to her home." These statements are mere puffery and do not rise to the level required of Section 201- 2( 4)(v)(vii) or (ix). "Puffery is 'an exaggeration or overstatement expressed in broad, vague and commendatory language.'" Zaborowski v. Hospitality Care Center of Hermitage, Inc., 60 Pa. D. & CAth 474,486 (Mercer County C.C.P. 2002) (citing Castrol Inc. v. Pennzoil Co., 987 F.2d 939, 945 (3d Cir. 1993)). According to Prosser and Keeton, puffery is "offered and understood as an expression of the seller's opinion only, which is to be discounted as such by the buyer, and on which no reasonable [person] would rely." Id at 486 (citing W. Page Keeton, Prosser and Keeton on the Law of Torts, Section 109 at 757 (5th ed. 1984)). A buyer cannot rely upon a seller's favorable opinion when that opinion is general. Id (citing Restatement (Second) of Torts Section 542 cmt. e (1978)). Rather, a buyer can only rely on a seller's statements about a product or service when those statements are fact specific. Id (citing Restatement (Second) of Torts Section 542 cmt. e (1978)). Here, Custom Patio's claims were not fact specific, but vague and general. B. Defendant Thompson has failed to sufficiently plead that Custom Patio violated Sections 201-2(4)(xiv) and (xvi) of the UTPCPL. Sections 201-2(4)(xiv) and (xvi) both reference written terms. 73 Pa.C.S.A. Section 201- 2( 4)(xiv), (xvi). Subsection (xiv) refers to written guarantees and warranties, whereas subsection (xvi) refers to a description of the standard of performance as recorded in writing. Id Outside of 4 NO. 04-5530 CIVIL a mere recognition that a contract did exist, Defendant Thompson failed to plead with even minimal specificity what written terms Custom Patio failed to satisfy. C. Defendant Thompson has failed to sufficiently plead that Custom Patio violated Section 201-2(4)(xxi) of the UTPCPL. Defendant Thompson's final UTPCPL claim is that Custom Patio engaged in "fraudulent or deceptive conduct." See 73 Pa.C.S.A. Section 2-102(4)(xxi). While this is commonly referred to as the "catchall provision" of the UTPCPL, it is not broad enough to allow defendant Thompson to proceed with her UTPCPL claim. Defendant Thompson simply failed to plead with any specificity what actions by Custom Patio constituted "fraudulent or deceptive conduct." D. Defendant Thompson has not violated Pa.R.C.P. 1028(5) nor has Defendant Thompson failed to join a necessary party. Finally, plaintiff Custom Patio alleges that defendant Thompson violated Pa.R. c.P. 1028(5). This makes no sense inasmuch as Pa.R.C.P. 1028(5) is a permissive rule allowing parties to file preliminary objections when there has been a failure to join a necessary party. Pa.R.C.P. 1028(5). Plaintiff Custom Patio appears to be saying that the independent contractor who did the concrete work must be joined as a necessary party. The independent contractor is neither an indispensable party nor a necessary party. In Pennsylvania, four inquiries are relevant when determining whether an absent party is indispensable: 1) Do absent parties have a right or interest related to the claim? 2) If so, what is the nature of the right or interest? 3) Is that right or interest essential to the merits of the issue? 4) Can justice be afforded without violating due process rights of absent parties? 5 NO. 04-5530 CIVIL Polydyne, Inc. v. City of Phil a., 795 A.2d 495,496 n.2 (Pa.Commw. 2002) (citing Montella v. Berkheimer Assoc., 690 A.2d 802, 803 (Pa.Commw. 1997)). The independent contractor fails the first criterion because the independent contractor has no "right or interest" in defendant Thompson's counterclaim. The second and third criteria are therefore moot. As for the fourth criterion, the outcome of this case cannot affect the due process rights of the independent contractor. Moreover, the independent contractor is not a necessary party. "[A] necessary party is one whose presence, while not indispensable, is essential if the court is to resolve completely a controversy and to render complete relief." Pa. Human Relations Comm'n v. School Dist. of Phila, 651 A.2d 177, 184 (Pa.Commw. 1993) (citing York-Adams County Constables Assoc. v. Court of Common Pleas of York County, 474 A.2d 79 (Pa.Commw. 1984)). We fail to see how the joinder of the concrete contractor is material to a resolution of the dispute between the plaintiff and the defendant. AND NOW, this ORDER day of April, 2005, the preliminary objections of the plaintiff to the counterclaim of the defendant seeking relief under the Pennsylvania Unfair Trade Practices and Consumer Protection Law are SUSTAINED. The remaining preliminary objections are DISMISSED. BY THE COURT, Kevin A. Hess, 1. 6 NO. 04-5530 CIVIL John DeLorenzo, Esquire F or the Plaintiff Linda C. Taliaferro, Esquire F or the Defendant :rlm 7 CUSTOM PATIO ROOMS OF CENTRAL PA, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA vs. CIVIL ACTION - LAW NO. 04-5530 CIVIL MARY THOMPSON, Defendant IN RE: PLAINTIFF'S PRELIMINARY OBJECTIONS TO THE AMENDED NEW MATTER AND COUNTERCLAIM ORDER AND NOW, this day of April, 2005, the preliminary objections of the plaintiff to the counterclaim of the defendant seeking relief under the Pennsylvania Unfair Trade Practices and Consumer Protection Law are SUSTAINED. The remaining preliminary objections are DISMISSED. BY THE COURT, Kevin A. Hess, 1. John DeLorenzo, Esquire F or the Plaintiff Linda C. Taliaferro, Esquire F or the Defendant :rlm