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HomeMy WebLinkAbout2011-4753 HARRY M. SUSI and : IN THE COURT OF COMMON PLEAS OF SUSAN M. SUSI, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : : THE BRICKMAN GROUP, LTD., LLC, : CASE NO. 11-4753 CIVIL and : ERIC BERKHEIMER, t/d/b/a : BERKHEIMER EXCAVATION & : CONCRETE AND BERKHEIMER : EXCAVATION & HAULING, INC. , : Defendants : : IN RE: PRELIMINARY OBJECTIONS OF THE BRICKMAN GROUP, LTD., LLC, ERIC BERKHEIMER, BERKHEIMER EXCAVATION & CONCRETE AND BERKHEIMER EXCAVATION & HAULING, INC, DEFENDANTS, TO THE PLAINTIFFS’ COMPLAINT BEFORE HESS, J., AND EBERT, J. ORDER OF COURT th AND NOW , this 7 day of December, 2011, upon consideration of Defendants’ Preliminary Objections and after oral argument held on July 15, 2011, IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Preliminary GRANTED DISMISSED Objections are and Plaintiffs’ Complaint is with prejudice. By the Court, ______________________________ M.L. Ebert, Jr., J. Anthony Stefanon, Esq. Christopher M. Tretta, Esq. 1 0 HARRY M. SUSI and : IN THE COURT OF COMMON PLEAS OF SUSAN M. SUSI, : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs : : v. : : THE BRICKMAN GROUP, LTD., LLC, : CASE NO. 11-4753 CIVIL and : ERIC BERKHEIMER, t/d/b/a : BERKHEIMER EXCAVATION & : CONCRETE AND BERKHEIMER : EXCAVATION & HAULING, INC. , : Defendants : IN RE: PRELIMINARY OBJECTIONS OF THE BRICKMAN GROUP, LTD., LLC, ERIC BERKHEIMER, BERKHEIMER EXCAVATION & CONCRETE AND BERKHEIMER EXCAVATION & HAULING, INC, DEFENDANTS, TO THE PLAINTIFFS’ COMPLAINT BEFORE HESS, J. AND EBERT, J. OPINION AND ORDER OF COURT EBERT, J., December 7, 2011 - PROCEDURAL HISTORY The procedural history of this particular case is somewhat complex. A case related to this one was filed on November 29, 2010, at docket number 10-7376 Civil. It is captioned Harry M. Susi and Susan M. Susi, his wife, (hereinafter Plaintiffs) versus Keystone Independence LP and Prologis. This case is clearly a tort action which alleges that Harry Susi slipped and fell on accumulation of ice and snow in the parking area of the building where he worked and sustained injuries. Interestingly, on January 21, 2011, Keystone Independence LP and Prologis joined an Additional Defendant, The Brickman Group LTD., LLC. This is the same Brickman Group, LTD., LLC, which is listed as a Defendant in this case docketed to 11-4753 Civil and currently before this Court. 1 On the case docketed to 10-7376, the Brickman Group, LTD., LLC, on February 23, 2011, filed a joinder complaint against Berkheimer Excavation; Berkheimer Excavation and Concrete; and Berkheimer Excavation and Hauling, Inc. Again, these Additional Defendants are the second set of Defendants named in this case (11-4753 Civil). In the first case (10-7376 Civil), Quality Packaging Specialists International, LLC, filed Preliminary Objections to the joinder complaint filed by the Brickman Group, LTD., LLC. These Preliminary Objections were sustained by Judge J. Wesley Oler by Order dated August 15, 2011, and the joinder complaint against Additional Defendant Quality Packaging Specialist was dismissed. On June 3, 2011, more than two years after Harry Susi’s fall on December 16, 2008, Plaintiffs filed the Complaint docketed to 11-4753 Civil against the Brickman Group, LTD., LLC, and Eric Berkheimer, t/d/b/a Berkheimer Excavation and Concrete and Berkheimer and Hauling, Inc. (hereinafter Defendants). This case however is framed as a breach of contract claim. While not dispositive, it is of some interest to note that when the Plaintiffs filed this action, the coversheet required by Pa.R.C.P. No. 205.5 specifically lists the nature of the case as Tort/Premises Liability. This block was checked in response to the directive on the form which states, “Nature of the Case: Place an “X” to the left of the ONE case category that most accurately describes your PRIMARY CASE.” The mandatory Rule 205.2 form does contain a check block for Contract Claims however Plaintiffs chose not to check this block. On June 20, 2011, Defendants filed these Preliminary Objections. Oral argument on the matter was held on July 15, 2011. 2 STATEMENT OF FACTS On December 16, 2008, Mr. Susi claims he slipped and fell in an icy parking lot that his employer, Quality Packing Specialists, Inc. (“QPSI”), rented from Keystone 1 Independence, LP (“Keystone”). Keystone, who managed the parking lot through a management company named Prologis, contracted with Brickman to clear the parking 2 lot of ice and snow. Brickman in turn subcontracted its contractual obligations to Eric Berkheimer. Mr. Berkheimer is in charge of Berkheimer Excavation & Concrete and Berkheimer Excavation & Hauling (collectively “Defendant Brickman”), which are 3 excavating and hauling companies hired to clear demolished buildings or debris. When Mr. Susi went to work on the morning of December 16, 2008, the ambient 4 temperature in the parking lot was above freezing, and likely clear of ice and snow. Mr. 5 Susi slipped and fell in the parking lot leaving work at 5:00 p.m. Mr. Susi sustained 6 injuries to his left hip and right shoulder. Due to Mr. Susi’s injuries, he has undergone extensive care and treatment, including physical therapy, drug therapy, diagnostic 7 procedures, and surgical treatment. He also claims pain, aggravation, inconvenience, 8 and other mental anguish as a result of his injuries. Mrs. Susi, the other Plaintiff, has also claimed that she has suffered as a result of Mr. Susi’s injuries through the loss of 9 her husband’s services and comforts. 1 Plaintiffs’ Complaint, filed June 3, 2011, ¶22 [hereinafter Pls.’ Compl. ¶___]. 2 Pls.’ Compl. ¶11. 3 Pls.’ Compl. ¶13. 4 Pls.’ Compl. ¶17. 5 Pls.’ Compl. ¶18. 6 Pls.’ Compl. ¶22. 7 Pls.’ Compl. ¶23. 8 Pls.’ Compl. ¶24. 9 Pls.’ Compl. ¶27. 3 DISCUSSION In evaluating preliminary objections to a complaint, the court is to deem all material facts and reasonable inferences as true. Werner v. Plater-Zyberk, 799 A.2d 776, 782 (Pa. Super. 2002). The court “need not consider the pleader's legal conclusions, unwarranted inferences from facts, opinions, or argumentative allegations.” Id. Preliminary objections should be granted when, “on the facts averred, the law says with certainty that no recovery is possible.” Id. at 783 (citing DeMary v. Latrobe Printing & Publ'g Co., 762 A.2d 758, 761 (Pa. Super. 2000)). The Defendants have filed these Preliminary Objections pursuant to Pa.R.C.P. 1028 (a)(4) claiming legal insufficiency of the pleading (demurrer). The Defendants have stated their Preliminary Objections as follows: I. THE PLAINTIFFS’ COMPLAINT MUST BE DISMISSED FOR LEGAL INSUFFICIENCY BECAUSE THE PLAINTIFFS’ LACK STANDING TO BRING THE 10 PURPORTED BREACH OF CONTRACT CLAIMS AGAINST THE DEFENDANTS II. THE PLAINTIFFS’ COMPLAINT MUST BE DISMISSED FOR LEGAL INSUFFICIENCY BECAUSE THE PLAINTIFFS’ COMPLAINT DOES NOT SEEK TO 11 RECOVER ANY CONTRACTUAL DAMAGES From a review of the pleadings and the briefs, we now summarize the parties’ positions. Plaintiffs maintain that they are third party beneficiaries to the various contracts for snow removal. Defendants counter that Plaintiffs’ action is, in reality, a tort claim clothed as a contract action which was filed outside the statute of limitations. 10 Defendants’ Preliminary Objections, page 6 11 Defendants’ Preliminary Objections, page 8 4 Pennsylvania case law discourages plaintiffs from attempting to bypass the two- year statute of limitations for tort cases by pleading their claims as a breach of contract. See Jones v. Boggs & Buhl, Inc., 49 A.2d 379, 381 (Pa. 1946); Staiano v. Johns Manville Corp., 450 A.2d 681 (Pa. Super. 1982); Shadle v. Pearce, 430 A.2d 683 (Pa. Super. 1981). “[T]he two year statute applicable to causes of action for personal injuries cannot be avoided by the expedient of pleading in contract.” Murray v. University of Pa. Hosp., 490 A.2d 839, 841 (Pa. Super. 1985). In essence, if the recovery sought is completion or remedying defects in performance of a contract, a cause of action is made under a contracts theory and subject to the extended statute of limitations period. See id. If the recovery sought is for personal injuries, regardless of whether the theory sounds in contract, the claim is one of torts and subject to a two-year statute of limitations. See id.; see also Spack v. Apostolidis, 510 A.2d 352, 365 (holding two-year statute of limitations applied even though appellant alleged breach of contract because she requested only damages of a personal injury nature). This Court finds that the Plaintiffs are not third-party beneficiaries to Defendants’ contracts. The cases cited by the Plaintiffs in support of their third party beneficiary proposition are simply not analogous. Scarpitti v. Weborg, 609 A.2d 147 (Pa. 1992), dealt with an implied contract between a real estate developer and an architect whereby the architect promised to review all building plans and enforce the recorded subdivision restrictions for the developer. The obvious purpose of this agreement was to make the lots more attractive to perspective purchasers by assuring that other homeowners in the subdivision would be required to abide by the recorded subdivision restrictions. Thus 5 the lot owners, who were found to be third party beneficiaries of this implied contract, were a very defined, known group of individuals who were clearly within the contemplation of the architect and the developer at the time of the implied contract. The Courts have recognized that Scarpitti carved out an exception to the general rule that a contract expressly state that a third party is intended to be a beneficiary; however, this exception is recognized as a narrow one. “Third party beneficiary status must not extend to virtually every member of the public.” Guerra v. Springdell Village Homeowners Association, et. al., 2011 WL 1303360 (E.D.Pa. 2011). Under the Plaintiffs’ theory in this case, every invitee, guest, and passerby to the parking lot in question would be able to sue the moving Defendants for their alleged failure to adequately perform the respective snow removal contracts. th Rockwell v. Crown American Financing Partnership, L.P. , 69 Pa. D. & C. 4, 246 (2004), does deal with a snow and ice removal slip and fall accident. A review of that case, however, shows that the lawsuit was clearly filed as a tort case. Gower, who had been contracted to remove snow and ice from the Uniontown Mall owned by Crown, tried to argue that it had no “duty” to the plaintiffs since it did not own or possess the premises in question. The Common Pleas Court responded that a duty was owed by the snow removal contractor based on its contractual obligation for snow removal and salting of the premises owned by Crown. Cleary this is a tort action. While the Rockwell court does make mention of the fact that persons who use the paved areas could be considered “third party beneficiaries” the case was not decided on contract principles. 6 In the present case, Mr. Susi slipped and fell in Keystone’s parking lot, sustaining physical injuries to his hip and shoulder. Mr. Susi underwent a multitude of procedures as part of his ongoing treatment and continues to suffer mental anguish as a result of his fall. Furthermore, Mrs. Susi suffers from loss of consortium of her husband as a result of his injuries. Plaintiffs’ claims for damages are based on personal injuries that are typical and expected from a slip and fall. However, these injuries have really nothing to do with Defendants’ obligations for performance under the respective contracts. Plaintiffs do not claim damages needed “for the cost of completing performance of the contract,” but rather claim damages only for personal injuries sustained. Murray, 490 A.2d at 842. Again, Plaintiffs have another suit pending at 10- 7376 Civil which addresses these injury claims. The facts of this case are analogous to those in Ritchey v. Patt, in which the Superior Court held a plaintiff in a slip and fall case could not assert a contract theory to side step the two-year statute of limitations on tort claims. Ritchey v. Patt, 636 A.2d 208, 210 (Pa. Super. 1994). In Ritchey, the plaintiff worked for a computer company that had leased property from a landlord. Id. at 209. The lease required the landlord to maintain the exterior areas. Id. The plaintiff, while exiting a service door of a building on the premises, slipped and fell, injuring his shoulder and ankle. Id. The plaintiff failed to file his claim within a two-year period after the incident and the trial court granted the defendant’s motion to dismiss. Id. On appeal, the Superior Court affirmed the trial court noting that the two-year statute of limitations “does not distinguish personal injuries resulting from negligence or contract breaches, rather, it addresses every suit to recover damages for injury wrongfully due to a person.” Id. 7 Additionally, this Court is persuaded by the reasoning provided by Judge Schiller in the case of Guerra v. Springdell Village Homeowners Association, et. al., 2011 WL 1303360 (E.D.Pa. 2011). Plaintiff owned a townhome in Chesterbrook and paid dues to the Springdell Village Homeowners Association. On January 20, 2009, the Plaintiff slipped on a patch of ice and suffered serious injuries while walking back from her mailbox. The property upon which she fell was owned by Chesterbrook and Springdell. Chesterbrook and Springdell had entered into snow removal contracts with Bryn Mawr Landscaping Co., Inc. and C. M. Jones, Inc. The Plaintiff maintained that the Defendants were negligent in failing to keep the area where she fell free from ice and insuring proper lighting for pedestrians. In addition to this tort action, the Plaintiff also claimed that as a homeowner, she was an intended third party beneficiary of the snow removal contracts and entitled to recover against Bryn Mawr and C. M. Jones for breach of their obligations to adequately remove snow and ice. The Court ruled that the Plaintiff was not a third party beneficiary to the contracts reasoning “that third party beneficiary status must not extend to ‘virtually every member of the public’.” Id. at p. 3. Guerra’s breach of contract claim was dismissed. Accordingly, we reach the same result here. Simply averring Defendants’ negligence was a breach of contract and linking Mr. Susi’s personal injury damages to that breach with indemnity language does not change the nature of the damages from personal injury to breach of contract. Plaintiffs are not seeking to remedy a defect of performance or obtain cost of completion, but rather they are attempting to obtain damages for personal injuries and subsequent damages. Mr. Susi fell and sustained personal injuries on December 16, 2008, and this Complaint was 8 not filed until June 3, 2011, approximately two-and-a-half years later. Therefore, Plaintiffs’ claims are barred by the two-year statute of limitations because the damages claimed are based on personal injuries and Plaintiffs failed to file the complaint within two years of the fall. Again, this Court remains cognizant of the fact that these Plaintiffs still have a valid tort claim involving the Defendants named in this case pending at Civil Term No. 2010-7376. Accordingly the following order is entered: th AND NOW , this 7 day of December, 2011, upon consideration of Defendants’ Preliminary Objections and after oral argument held on July 15, 2011, IT IS HEREBY ORDERED AND DIRECTED that Defendants’ Preliminary GRANTED DISMISSED Objections are and Plaintiffs’ Complaint is with prejudice. By the Court, ___________________________________ M.L. Ebert, Jr., J. Anthony Stefanon, Esq. Christopher M. Tretta, Esq. 9