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HomeMy WebLinkAbout97-0792 civilCHARLES E. CAIN, II and CHRISTINA L. CAIN, PLAINTIFFS Vo PENN VALLEY CORPORATION, DEFENDANT IN RE: IN THE COURT OF COMMON PLEAS OF · CUMBERLAND COUNTY, PENNSYLVANIA 97-0792 CIVIL TERM CROSS-MOTIONS FOR POST-TRIAL RELIEF OPINION AND ORDER OF COURT BAYLEY, J., August 3, 1999:-- Defendant, Penn Valley Corporation, recorded a plan of lots on which it constructed homes one of which they sold in February, 1996, to plaintiffs Charles E. Cain, II and Christina L. Cain. The home was already constructed when it was purchased by plaintiffs. Plaintiffs brought this suit against defendant seeking damages for breach of warranty of performance in a good and workmanlike manner. They also sought special damages for an alleged violation by defendant of the Pennsylvania Unfair Trade Practices and Consumer Protection Law. Following a bench trial, and based on the following general findings entered pursuant to Pa. Rule of Civil Procedure 1038, a verdict was entered in favor of plaintiffs and against defendant in the amount of $21,325: (1) Defendant did not violate the Pennsylvania Unfair Trade Practices and Consumer Protection Law. (2) Defendant breached a warranty of performance in a good and workmanlike manner. (3) The following damages are awarded for the breach of warranty: (a) remedy water drainage problem with related costs (b) repair defective painting (c) replace defective driveway (d) repair defective outside porch $15,000 $165 $2,460 $450 97-0792 CIVIL TERM (e) replace defective garage slab $3,000 (f) repair cracks in basement slab $250 TOTAL $21,325 Both parties filed motions for post-trial relief. The issues have been briefed and are ready for decision. We will address all of the issues raised in each party's briefs. Issues not briefed are waived. Cumberland County Rule of Court 210-7. The major item of damage awarded to plaintiffs was $15,000 to "remedy water drainage problem with related costs." In its post-trial motion, defendant maintains that plaintiffs failed to prove, by a preponderance of the evidence, that there is an excessive water problem on the property. That position is sophistry. There was overwhelming evidence that defendant constructed plaintiffs' home in a natural drainage area onto which rainwater flows from nearby properties in the subdivision on which there are homes constructed by defendant. The subdivision plan containing plaintiffs' lot depicts a drainage system to disperse water draining onto plaintiffs' property into a pipe that leads into an inlet in the street in front of their property. Defendant did not install this pipe and inlet system as shown on the subdivision plan, nor construct a swale to the rear of the property in a way as originally planned, and it ineptly graded the property in a way that increased the significant, prolonged pooling and retention of surface water to the point that it, at times, resembles a wetland. Such evidence met plaintiffs' burden of establishing that the drainage problem on their property was due to the substandard work of defendant. Plaintiffs presented evidence not only that their property has to be regraded, -2- 97-0792 CIVIL TERM which are the damages that defendant maintains are the maximum for which plaintiffs could recover for a water problem it still claims does not exist, but also that the correction of the water problem requires the construction of a system to remove water that flows onto and is retained on the property. Such construction requires putting in a proper swale and piping, an inlet in the street, and providing some fill along with regrading of the property. This work will require that a part of a fence on the property has to be removed and then replaced. Plaintiffs presented evidence that those costs, with engineering, would be $25,000. That figure included the costs of some grading work to be done on other properties not owned by plaintiffs that would be beneficial in rechanneling water into this drainage system. Whether access to such properties is available is not known so we did not award any damages with respect to that portion of the projected costs. We concluded that the work necessary to correct the drainage problem within the confines of plaintiffs' property was $15,000. Defendant maintains that the testimony as to damages presented by plaintiffs' expert witness to remedy the water problem was not relevant in its entirety simply because the witness suggested that some grading work be done on three properties not owned by plaintiffs. As to both liability and damages, the court was free to believe all, part of or none of the witness's testimony. Turney Media Fuel, Inc. v. Toll Bros., Inc., 725 A.2d 836 (Pa. Super. 1999). Plaintiffs bore the burden of proving damages only by a fair preponderance of the evidence, which they did, which means that they had to provide to the court: [w]ith a reasonable amount of information so as to enable [it] fairly to -3- 97-0792 CIVIL TERM estimate damages without engaging in speculation. Damages need not be proved to a mathematical certainty. Bolus v. United Penn Bank, 363 Pa. Super. 247 (1987). Defendant also maintains that a limited warranty in the agreement of sale excludes plaintiffs from recovering damages for the water problem because plaintiffs constructed a rear patio connected to their house, and in the spring following the purchase of the property they put some topsoil down that was provided by defendant pursuant to an addendum in the sales agreement. The credible evidence showed that the construction of the concrete pad for the patio did not cause the retention and pooling of the water that flows onto plaintiffs' property from other areas of the subdivision. In fact, the evidence showed that the patio slab helps keep that water from entering into the residence. The credible evidence was that the material cause of the water problem was the lack of an adequate drainage system and not the patio slab or the topsoil that plaintiffs placed on portions of their property. Plaintiffs were awarded $3,000 to replace a defective garage slab. Defendant maintains that this award is not supported by the evidence because an addendum signed to the sales agreement provided that "if concrete cracks become more severe or upheaved.., concrete will be repaired." The credible evidence showed that the initial installation of the concrete slab was defective and could not be adequately repaired. Therefore, the proper measure of damages was to replace the slab. Although defendant did present evidence suggesting that if plaintiffs had allowed it to make -4- 97-0792 CIVIL TERM repairs to the garage floor at an earlier time such repairs would have resolved the problem, we did not find this evidence credible. Plaintiffs were awarded $2,460 to replace a defective driveway. Defendant maintains that plaintiffs did not meet their burden of proving liability for that award, and that any problem was caused by plaintiffs occasionally parking a truck on the driveway. Plaintiffs did, on occasions, park a tow truck, with a car on top, on the driveway. We accepted the testimony of plaintiffs that depressions in the driveway started to occur a few months after they purchased the home in February, 1996, and that some of the depressions were in areas other than where the tires of vehicles parked in the driveway would come to rest. The credible evidence was that the only proper way to remove these depressions was to replace the driveway. We concluded that the driveway was not constructed in a good and workmanlike manner and that defendant is not entitled, as it claims, to avoid liability for such poor workmanship based on a clause in the sales agreement that discharges it "[f]rom all liability for any damage or destruction to the demise premises caused by ground shifting and resettlement..." Plaintiffs in their post-trial motion maintain that the court erred in not awarding it legal fees and expenses pursuant to the Unfair Trade Practices and Consumer Protection Law 73 P.S. § 201-1 et seq? In their amended complaint, plaintiffs sought ' In an order entered on September 3, 1997, supported by a written opinion denying a preliminary objection by defendant, this court, Sheely, P.J. and Oler, J., held that "It]he sale of a home falls within the scope of protection given to consumers" under the Unfair Trade Practices and Consumer Protection Law. -5- 97-0792 CIVIL TERM damages for an award of costs and reasonable attorney fees pursuant to Section 201- 9.2 of the statute alleging unlawful acts under Section 201-3 encompassing the following subsections of Section 201-2(4): (ii) Causing likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services; (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; In its brief, plaintiffs argue that attorney fees and costs were warranted under the Unfair Trade Practices and Consumer Protection Law because "[t]he developer deliberately changed the storm water management plan and the homeowners purchased the property believing that the property had adequate storm water drainage." Section 201-9.2(a) of the Act provides: Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages .... The court may award to the plaintiff, in addition to other relief provided in the section, costs and reasonable attorney fees. (Emphasis added.) An award of attorney fees under this section is within the trial court's discretion. Sewak v. Lockhart, 699 A.2d 755 (Pa. Super. 1997). The evidence revealed that -6- 97-0792 CIVIL TERM defendant did revise its storm water plan to provide for a method of directing storm water away from plaintiffs' property different from the swaling, piping and inlet system set forth in its recorded subdivision plan. This change was made in good faith under a belief that it would be adequate to remove storm water from plaintiffs' property and it was approved by East Pennsboro Township. It was not recorded because it did not change any boundary lines on the subdivision plan. Plaintiffs did not look at the subdivision plan before they purchased their property. Defendant never represented to them that they constructed the drainage system as shown on that plan. Unfortunately, the revised storm water drainage plan did not work as anticipated. Defendant is responsible for $15,000 in damages as a result but is not, in our opinion, subject to an award of attorney fees pursuant to Section 201-2(4)(ii), (v) or (vii) of the Unfair Trade Practices and Consumer Protection Law. For the foregoing reasons, the following order is entered. ORDER OF COURT AND NOW, this __.~ V'~-day of August, 1999, IT I$ ORDERED: (1) The post-trial motion for relief of defendant Penn Valley Corporation, IS DENIED, (2) The post-trial motion for relief of plaintiffs Charles E. Cain, II and Christina L. Cain, IS DENIED. -7- 97-0792 CIVIL TERM Marcus A. McKnight, III, Esquire For Plaintiffs Elliot A. Strokoff, Esquire For Defendant :saa By the C · Edgar B. BaSle: /J. ? -8-