HomeMy WebLinkAbout2011-5527
ROSS PELUSI and
: IN THE COURT OF COMMON PLEAS OF
MARY PELUSI,
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
:
:
v.
: CIVIL DOCKET NO.: 11-5527
:
DRESSLER CONTRACTING, LLC,
Defendant.
:
: JURY TRIAL DEMANDED
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
BEFORE HESS, P.J. AND EBERT, J.
OPINION AND ORDER
Defendant, Dressler Contracting, L.L.C., has filed preliminary objections to Plaintiffs’
Complaint pursuant to Pa.R.Civ.P. 1028(a). (Defendant’s Preliminary Objections to Plaintiffs’
Complaint, filed Sept. 23, 2011). Plaintiffs’ Complaint contains eight counts: breach of contract,
breach of oral contract, fraud/intentional misrepresentation, negligent representation, a violation
of the Unfair Trade Practices and Consumer Protection Law, Breach of Implied Warranty of
Merchantability, Breach of Implied Warranty of Fitness for a Particular Purpose, and Breach of
Express Warranty of Merchantability. (Complaint, filed Jul. 8, 2011 (hereinafter “Complaint”)).
The Complaint has been preliminarily objected to in the form of a demurrer, by way of a motion
to strike for reasons of insufficient specificity, failure to conform to rule of law, a violation of the
Gist of the Action Doctrine, and a violation of the Parol Evidence rule. (Preliminary Objections,
filed Sept. 23, 2011).
Plaintiffs’ Complaint may be summarized as follows. Defendant is a limited liability
company engaged in the business of home construction and other related services. (Complaint, ¶
4). On or about May 12, 2009, Plaintiffs and Defendant entered into a written contract
(hereinafter “Agreement”) for the construction and completion of a residential home and
driveway to be located at 1027 Oyster Mill Road, Camp Hill, Cumberland County, Pennsylvania.
(Complaint, ¶ 8). Plaintiffs aver that, pursuant to the Agreement, Plaintiffs were to pay $225,523,
plus additional costs for change orders, to Defendant as consideration for his services.
(Complaint, ¶ 9). Plaintiffs aver that Defendant was to construct and finish the home and
driveway in accordance with the specifications contained in the agreement, and that he failed to
do so. (Complaint, ¶¶ 9, 11). Among the errors complained of by Plaintiffs are the following:
that Defendant failed to complete the construction of the rear basement stairs; that he failed to
level the basement ceiling; that he did not place of a rubber seal in the mud room door; and that
he did not place a seal for the basement’s French doors. (Complaint, ¶ 12). Plaintiffs allege also
that Defendant removed from the construction site certain building materials belonging to them,
including roof tresses, siding, shingles, and four garage windows. (Complaint, ¶ 13).
Additionally, Plaintiffs aver that, as the result of poor construction, Plaintiffs’ driveway has
“collapsed and washed away.” (Complaint, ¶ 19). Lastly, Plaintiffs allege that Defendant
verbally promised to them that a sump pump would be installed in the home to prevent basement
flooding, a promise which Plaintiffs contend was not fulfilled. (Complaint, ¶¶ 17, 38). Plaintiffs
aver that they have satisfied their obligation under the Agreement by paying their obligations in
full, including additional amounts for change orders, yet the work described above remains
uncompleted. (Complaint, ¶¶ 10, 16).
As a consequence of the collapsed driveway, Plaintiffs aver that they were forced to
expend $2,025 on labor costs and $233.20 on materials in an effort to patch the dilapidated
pathway. (N.T. 19). Plaintiffs aver that, subsequent to the receipt of a Demand Letter,
Defendant offered to Plaintiffs a $450 credit for the construction issues, an offer that was
rejected by Plaintiffs as too low. (Complaint, ¶¶ 14-16). Additionally, Plaintiffs aver that
2
Defendant has not honored the warranty agreement pertaining to the driveway, and has instead
sought protection under a provision of the Agreement disavowing the driveway warranty in the
event of subterranean moisture, an occurrence that Plaintiffs have also rejected. (Complaint, ¶¶
21-23). Lastly, Plaintiffs aver that, because of Defendant’s unwillingness to make the necessary
repairs, they will be forced to hire another contractor to complete the work, and the estimations
that have been received by them have indicated that the sump pump installation will cost
approximately $2,450, the driveway will cost approximately $6,641 to rebuild, and the home
repairs will cost approximately $2,700, said repairs being necessary to bring the house up to
code. (Complaint, ¶¶ 27, 28). Plaintiffs pray for relief in the amount of $14,049.20 plus interest.
Defendant has filed the instant preliminary objections to Plaintiffs’ Complaint.
Defendant alleges that certain paragraphs of the complaint should be stricken for reasons of
insufficient specificity, failure to conform to rule of law, a violation of the Gist of the Action
Doctrine, and a violation of the Parol Evidence rule. (Preliminary Objections, filed Sept. 23,
2011). The matter was argued, and briefs were submitted.
Pursuant to Pennsylvania Rule of Civil Procedure 1028(a), preliminary objections may be
filed by any party to any pleading on several limited grounds, including the following:
(2) Failure of a pleading to conform to law or rule of court . . .;
(3) Insufficient specificity in a pleading;
(4) Legal insufficiency of a pleading (demurrer).
Pa.R.C.P. 1028(a)(2), (3), (4).
The standard of review for preliminary objections in this Commonwealth is well settled.
Preliminary objections are properly granted only when, “based on the facts pleaded, it is clear
3
and free from doubt that the complainant will be unable to prove facts legally sufficient to
establish a right to relief.” Mazur v. Trinity Area School Dist., 599 Pa. 232, 240-41, 961 A.2d 96,
101 (2008) (internal citations omitted). Furthermore, “[f]or the purpose of evaluating the legal
sufficiency of the challenged pleading, the court must accept as true all well-pleaded, material,
and relevant facts alleged in the complaint and every inference that is fairly deducible from those
facts.” Mazur v. Trinity Area School Dist., 599 Pa. at 241. The trial court “need not accept as
true conclusions of law, unwarranted inferences from fact, argumentative allegations, or
expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Commw.
1995). The appellate court will only reverse a trial court’s ruling on a preliminary objection
when “there has been an error of law or abuse of discretion.” Excavation Technologies, Inc. v.
Columbia Gas Co. of Pa., 2007 Pa. Super. 327, ¶ 5, 936 A.2d 111, 113.
Pennsylvania is a fact pleading jurisdiction. Foster v. UPMC South Side Hosp., 2010 PA
Super 143, 2 A.3d 655, 666 (quoting Lerner v. Lerner, 954 A.2d 1229, 1235, (Pa. Super. 2008)).
The plaintiff must state the material facts on which a cause of action is based “in a concise and
summary form.” Pa.R.Civ.P. 1019(a). It is well established that a plaintiff’s complaint must
provide sufficient factual averments in order to sustain a cause of action. Feingold v. Hendrzak,
2011 PA Super 34, 15 A.3d 937, 942. The complaint must “not only give the defendant notice of
what the plaintiff’s claim is and the grounds upon which it rests, but the complaint must also
formulate the issues by summarizing those facts essential to support the claim.” Id. (internal
citations omitted). Moreover, the complaint must be sufficiently specific so that the opposing
party will know how to prepare his defense. Commonwealth ex rel. Pappert v. Pharmaceutical
Products, Inc., 868 A.2d 624, 635 (Pa.Cmwlth. 2005). Lastly, our Supreme Court has held that
“the lower court has broad discretion in determining the amount of detail that must be averred
4
since the standard of pleading set forth in Rule 1019(a) is inapplicable of precise measurement.”
United Refrigerator Co. v. Appplebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963).
Defendant’s first preliminary objection is in the nature a motion to strike Plaintiffs Count
I – Breach of Contract, and, more specifically, paragraphs eleven (11) and thirty-three (33) of the
Complaint for failure to sufficiently state the material facts upon which the breach of contract
cause of action is based. Those paragraphs provide as follows:
11. Defendants, however, have failed to satisfy their obligations under the
Agreement in that they failed to properly construct the house and driveway in
accordance with the Agreement.
33. Defendants breached the Agreement by not completing and not properly
constructing the home and driveway as detailed above.
(Complaint, ¶¶ 11, 33).
Defendant also takes issue with paragraph 42, which pertains specifically to Plaintiffs’
Fraud/Intentional Misrepresentation Claim. Because Defendant has also filed a preliminary
objection with regard to that claim, we will address paragraph 42 in more detail below.
A breach of contract claim 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, N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa.Super.1999).
While not every term of a contract must be stated in complete detail, every element must be
specifically pleaded. Id. at 1058.
Applying the foregoing, Plaintiffs have averred facts with sufficient specificity to sustain
a cause of action for breach of contract. Plaintiffs have alleged that, on May 12, 2009, they
entered into a written contract with Defendant to construct and complete a residential home and
driveway in accordance with certain specifications contained within in the Agreement; a copy of
5
the Agreement and its specifications were attached to Plaintiffs’ Complaint as Exhibit A.
(Complaint, Ex. A). Additionally, Plaintiffs have alleged that Defendant’s failure to complete the
construction of the rear basement stairs, leveling of the basement ceiling, placement of a rubber
seal for the mud room door, and placement of a basement seal for French doors have all been in
violation of the Agreement. Plaintiffs have also alleged Defendant removed construction site
materials purchased by the Plaintiffs. Furthermore, Plaintiffs have alleged that Defendant
inadequately constructed the driveway, which subsequently collapsed and washed away, and that
Defendant failed to honor the warranty and repair the damage to the driveway, all in violation of
the Agreement. Plaintiffs aver that they will be forced to hire contractors to completely rebuild
the driveway and complete the basement work. Accepting as true all well-pleaded, material and
relevant facts alleged in the Complaint, and every inference that is fairly and reasonably
deducible therefrom, we are satisfied that Plaintiffs have pled facts sufficient to support a cause
of action for breach of contract. As a result, Defendant’s first preliminary objection will be
overruled.
Defendant’s second preliminary objection is in the nature of a demurrer to Plaintiffs’
claim for Breach of Oral Contract for reasons of legal insufficiency; specifically, Defendant
asserts that a demurrer is proper because Plaintiffs did not specifically aver in their complaint
what consideration was given in exchange for the oral promise to install a sump pump.
Defendant’s third preliminary objection is in the nature of a motion to strike Plaintiffs’ Count II
– Breach of Oral Contract for reasons of insufficient specificity. Specifically, Defendant asserts
that the Complaint fails to allege the time “when the cause of action arose”; we believe this to
mean that Defendant has taken issue with the Complaint’s failure to identify the date and time of
the alleged oral contract. Additionally, Defendant contends that the Complaint fails to state any
6
facts upon which the amount of damages may be calculated in violation of Pennsylvania Rule of
Civil Procedure 1019(a). Because the two objections are so closely intertwined, we will address
them together.
The standard of review for a demurrer is well settled: “[a] preliminary objection in the
nature of a demurrer is properly granted where the contested pleading is legally insufficient.
Preliminary objections in the nature of a demurrer require the court to resolve the issues solely
on the basis of pleadings, no testimony or other evidence outside of the complaint may be
considered to dispose of the legal issues presented by the demurrer.” Strausser v. PRAMCO, III,
944 A.2d 761, 764-65 (Pa. Super Ct. 2008). A demurrer is “an assertion that a complaint does
not set forth a cause of action or a claim on which relief can be granted.” Lerner v. Lerner, 2008
PA Super 183, ¶ 11, 954 A.2d 1229, 1234 (internal citations omitted). All material facts
contained within the pleadings and all inferences fairly and reasonably deducible from those
facts must be admitted as true. Id. In alleging a demurrer, a defendant admits all relevant facts
sufficiently pleaded in the complaint and all inferences fairly deducible from those facts but not
conclusions of law or unjustified inferences. Id. at 1234-35. “The question presented by the
demurrer is whether, on the facts averred, the law says with certainty that no recovery is
possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should
be resolved in favor of overruling it.” Wawa, Inc. v. Alexander J. Litwornia & Associates, 817
A.2d 543, 544 (Pa.Super. 2003) (quoting Price v. Brown, 545 Pa. 216, 221, 680 A.2d 1149, 1151
(1966)).
As described in greater detail above, the Pennsylvania Rules of Civil Procedure require a
complaint to “not only give the defendant notice of what the plaintiff’s claim is and the grounds
upon which it rests, but the complaint must also formulate the issues by summarizing those facts
7
essential to support the claim.” Feingold, 2011 PA Super 34, 15 A.3d at 942 (internal citations
omitted). Moreover, the complaint must be sufficiently specific so that the opposing party will
know how to prepare his defense. Commonwealth ex rel. Pappert, 868 A.2d at 635. Rule 1019
has been unambiguously interpreted to require “the pleader to disclose the material facts
sufficient to enable the adverse party to prepare his case. A complaint therefore must do more
than give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it
rests. It should formulate the issues by fully summarizing the material facts. Material facts are
ultimate facts, i.e. those facts essential to support the claim.” Lerner, 954 A.2d at 1236 (quoting
Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498, 505–06 (1974)).
To establish a breach of oral contract claim a plaintiff must show that an oral contract
existed; therefor, a plaintiff must prove that: 1) both parties manifested an intention to be bound
by the terms of the agreement; 2) the terms of the agreement were sufficiently definite to be
specifically performed; and 3) there was mutuality of consideration. Redick v. Kraft, Inc., 745 F.
Supp. 296, 300 (E.D. Pa. 1990). Clarity is especially important where an oral contract is alleged.
Snaith v. Snaith, 283 Pa.Super. 450, 455, 422 A.2d 1379, 1382 (1980).
In its second and third preliminary objections, Defendant takes issue with Plaintiffs’
Count II – Breach of Oral Contract claim. The entirety of Plaintiffs’ Count II is as follows:
36. The averments set forth in the preceding paragraphs are incorporated herein
by reference as if fully set forth herein.
37. The Defendants promised to install a sump pump into the house to prevent the
basement from flooding.
38. However, Defendants breached this agreement by never installed [sic] said
sump pump thereby causing the basement to flood.
8
39. As a direct and proximate result of Defendants breach of the agreement, the
Plaintiffs has [sic] been damaged in an amount equal to 14,049.20 plus interest at
the statutory rate from the date of the breach.
(Complaint, ¶¶ 36-39).
Indeed, the description of the alleged oral contract found within Plaintiffs’ statement of
the facts is brief; to wit, the entirety of the portrayal is as follows:
17. Additionally, Defendants verbally promised Plaintiffs that a sump pump
would be installed in the house to prevent the basement from flooding. See
Estimate of $2,450 to install sump pump in Defendant’s home attached as Exhibit
“C.”
(Complaint, ¶ 17).
Applying the foregoing, we are not prepared to find that on the facts averred the law says
with certainty that no recovery is possible. Indeed, we entertain some doubt as to the
appropriateness of a demurrer, and find, rather, that Plaintiffs’ Complaint instead lacks the
requisite specificity regarding their claim for the breach of an oral contract. Plaintiffs’
Complaint is unclear as to how the sump pump relates to the overall construction contract and
whether or not there was additional consideration paid therefor. Whether the sump pump
agreement was some verbal change order or a separate agreement entirely is ambiguous. We do
not believe, however, that the law precludes Plaintiffs from bringing a claim for breach of an oral
contract altogether; however, Plaintiffs have not fully summarized the material facts surrounding
the oral contract, and, as a result, Defendant’s third preliminary objection, based on insufficient
specificity, will be sustained and Plaintiffs will be granted leave to amend. Additionally,
Defendant’s second preliminary objection, the demurrer, will be overruled.
Defendant’s fourth preliminary objection is in the nature a motion to strike for reasons of
insufficient specificity with regard to Plaintiffs’ Count III-Fraud/Intentional Misrepresentation
9
claim. Pursuant Pennsylvania Rule of Civil Procedure 1019(b), “averments of fraud or mistake
shall be averred with particularity.”Pa.R.Civ.P. 1019(b). Our Supreme Court has explained the
particularity requirement as follows:
Averments of fraud are meaningless epithets unless sufficient facts are set forth
which will permit an inference that the claim is not without foundation or offered
simply to harass the opposing party and to delay the pleader's own obligation....
The pleadings must adequately explain the nature of the claim to the opposing
party so as to permit him to prepare a defense and they must be sufficient to
convince the court that the averments are not merely subterfuge.
New York State Elec. & Gas Corp. v. Westinghouse Elec. Corp., 387 Pa.Super. 537, 553, 564
A.2d 919, 927 (1989) (quoting Bata v. Central–Penn National Bank of Philadelphia, 423 Pa.
373, 379–80, 224 A.2d 174 (1966)).
While it remains impossible to establish precise standards as to the degree of particularity
required by Rule 1019(b), Pennsylvania courts have consistently mandated that two conditions to
be met in order to satisfy the requirement: “(1) the pleadings must adequately explain the nature
of the claim to the opposing party so as to permit the preparation of a defense, and (2) they must
be sufficient to convince the court that the averments are not merely subterfuge.” Martin v.
Lancaster Battery Co., Inc., 530 Pa. 11, 18, 606 A.2d 444, 448 (1992).
In order to maintain a cause of action for fraud, a plaintiff must allege the following
elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely,
with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of
misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the
resulting injury was proximately caused by the reliance. Bortz v. Noon, 556 Pa. 489, 499, 729
A.2d 555, 560 (1999).
10
With these standards in mind, and reviewing Plaintiffs’ Complaint in light of all
reasonable inferences deducible therefrom, we find that Plaintiffs have not plead facts sufficient
to support a cause of action for fraud/intentional misrepresentation, thus making their Count III
legally insufficient. Plaintiffs charge Defendant with making fraudulent misrepresentations, but
fail to allege anything more. Plaintiffs’ Count III – Fraud/Intentional Misrepresentation
provides, in its entirety, as follows:
40. The averments set forth in the preceding paragraphs are incorporated herein
by reference as if fully set forth herein.
41. Defendants intentionally, recklessly, and fraudulently misrepresented known
material facts to the Plaintiffs, thereby causing the Plaintiffs to act and rely upon
those facts in entering into an Agreement with Defendants to construct the
Plaintiffs’ home and driveway.
42. The facts that Defendants fraudulently misrepresented are outlined in the
preceding paragraphs.
43. These representations were made by Defendants with the intention of
misleading Plaintiffs into relying upon them in that said Defendants intended to
induce Plaintiffs to pay for the construction of a house and driveway they never
planned to complete or complete adequately.
44. Defendants made these representations falsely and with knowledge of their
falsity.
45. Plaintiffs justifiably relied on the information provided by Defendants in
determining whether to pay Defendants in full for said contract.
46. Plaintiffs’ damages were directly and proximately caused by Defendants
misrepresentations regarding their intent to complete Plaintiffs’ home.
47. As a direct and proximate result of Defendants’ misrepresentations, Plaintiffs
have been damaged in an amount equal to 14,049.20 plus interest at the statutory
rate from the date of the breach.
(Complaint, ¶¶ 40-47).
11
Plaintiffs appear to rely on the seemingly all-inclusive wording of Paragraphs 41 and 42
as the particularized basis of “facts” to support their fraud claim. However, nothing in Plaintiffs’
recitation of the facts even remotely indicates a basis for allegations of fraud. Plaintiffs’
Complaint describes a contract between themselves and a builder to construct a residential home
and driveway and alleges inadequate performance regarding certain basement and driveway
issues. There are no allegations of misrepresentations made by Defendant to fraudulently induce
them into a contractual relationship. Plaintiffs assert that Defendant intentionally, recklessly,
and fraudulently misrepresented known material facts to Plaintiffs, yet make no mention or
inference as to what those facts are or any basis to so infer. These bald allegations are legally
insufficient to support a cause of action for fraud/intentional misrepresentation. The pleading
does not adequately explain the nature of the claim so as to permit Defendant to prepare a
defense. For these reasons, Defendant’s fourth preliminary objection will be sustained, and
Plaintiffs will be granted leave to amend their pleading in conformity with the above-detailed
principles.
Defendant’s fifth preliminary objection is based on the Gist of the Action Doctrine and
asserts that Plaintiffs’ claim of Fraud/Intentional Misrepresentation is barred because it arises out
of and relies on the same facts which support their Breach of Contract claim. The Gist of the
Action doctrine, first recognized in Bash v. Bell Tel. Co., 411 Pa. Super. 347, 601 A.2d 825
(1992), is a doctrine “designed to maintain the conceptual distinction between breach of contract
claims and tort claims.” eToll, Inc. v. Elias/ Savion Advertising, Inc., 2002 Pa Super. 347, ¶ 14,
811 A.2d 10, 14. The Superior Court explained the doctrine in eToll and asserted that its essence
is to “[preclude] plaintiffs from re-casting ordinary breach of contract claims into tort claims.”
12
Id. Both Bash and eToll instruct that the distinction between breach of contract claims and tort
claims is as follows:
[a]lthough they derive from a common origin, distinct differences between civil
actions for tort and contract breach have developed at common law. Tort actions
lie for breaches of duties imposed by law as a matter of social policy, while
contract actions lie only for breaches of duties imposed by mutual consensus
agreements between particular individuals.... To permit a promisee to sue his
promisor in tort for breaches of contract inter se would erode the usual rules of
contractual recovery and inject confusion into our well-settled forms of actions.
Id. (citing Bash, 601 A.2d at 829). The distinction between contract and tort actions is,
therefore, found in the source of the duty; namely that “the latter lie from the breach of duties
imposed as a matter of social policy while the former lie for the breach of duties imposed by
mutual consensus.” eToll, 2002 Pa. Super. 347, ¶ 15 (citing Redevelopment Auth. v. International
Ins. Co., 454 Pa. Super. 374, 685 A.2d 581, 590 (1996)). As a result, the doctrine bars tort claims
when there is no other duty other than a contractual one from which the cause of action arises.
The Superior Court has outlined the scope of the doctrine as follows:
[P]ersuasive authority interpreting Pennsylvania law has restated the gist of the
action doctrine in a number of similar ways. These courts have held that the
doctrine bars tort claims: (1) arising solely from a contract between the parties;
(2) where the duties allegedly breached were created and grounded in the contract
itself where the liability stems from a contract; (4) where the tort claim essentially
duplicates a breach of contract claim or the success of which is wholly dependent
on the terms of a contract.
not
These courts have carved out a categorical exception for fraud, and have not
held that the duty to avoid fraud is always a qualitatively different duty imposed
by society rather than by the contract itself. Rather, the cases seem to turn on the
question of whether the fraud concerned the performance of contractual duties. If
so, then the alleged fraud is generally held to be merely collateral to a contract
claim for breach of those duties. If not, then the gist of the action would be the
fraud, rather than any contractual relationship between the parties.
Mirizio v. Joseph, 4 A.3d 1073, 1080 (Pa.Super. 2010) (quoting eToll 2002 Pa. Super. 347, ¶ 29,
811 A.2d at 19) (emphasis original).
13
Applying the forgoing, Plaintiffs have alleged facts, albeit legally insufficiently as
detailed above, that indicate an alleged fraud in the inducement as opposed to fraud concerned
with the performance of contractual duties. Plaintiffs have alleged that Defendant “fraudulently
misrepresented known material facts to the Plaintiffs” thereby causing Plaintiffs “to [enter] into
an Agreement with Defendants to construct the Plaintiff’s home and driveway,” and that
Defendant did so “with the intention of misleading Plaintiffs” and did so “never plan[ning] to
complete or complete adequately” the home and driveway construction. (Complaint, ¶¶ 41-44).
Taking these facts as true, and every inference that is fairly and reasonably deducible therefrom,
the gist of Plaintiffs’ fraud claim lies not in contractual performance, but instead in the
inducement of the contractual relationship. As a result, the gist of the action doctrine does not
bar Plaintiffs’ fraud claim, and Defendant’s fifth preliminary objection will be overruled.
Defendant’s sixth preliminary objection is in the nature of motion to strike Plaintiffs’
Count III – Fraud/Intentional Misrepresentation for a violation of the parol evidence rule. The
parol evidence rule is an evidentiary concern designed to limit evidence heard at trial that is
thereby intended to vary the written meaning of a contract. It has no application at the
preliminary objection stage. Pennsylvania Rule of Civil Procedure 1028(a) contains complete
and limited list of bases’ upon which a preliminary objection may be raised; a violation of the
parol evidence rule is not included therein. As a result, Defendant’s sixth preliminary objection
will be overruled.
Defendant’s seventh, and last, preliminary objection alleges that Plaintiffs’ Count V –
Violation of the Unfair Trade Practices and Consumer Protection Law lacks the specificity
required by Pa.R.Civ.P. 1019(a). The Pennsylvania Unfair Trade Practices and Consumer
Protection Law (Pa.U.T.P.C.P.L.) was enacted to enhance the protection of the public from
14
unfair or deceptive business practices. Valley Forge Towers South Condominium v. Ron-Ike
Foam Insulators, Inc., 393 Pa.Super. 339, 346, 574 A.2d 641, 644 (1990). Section 201-2(4) of
the Pa.U.T.P.C.P.L. goes into great detail when describing the many ways that one’s conduct
may fall within the statute’s definition of “unfair methods of competition” or “unfair or deceptive
acts or practices,” thus resulting in a violation of the Pa.U.T.P.C.P.L. 73 P.S. §201-2(4). The
statute is extensive and comprehensive in prohibiting unfair methods of competition and unfair
and deceptive acts and practices, as the predominant underlying intent of the statute is fraud
prevention. Valley Forge Towers, 393 Pa.Super. at 346, 574 A.2d at 644.
In the present case, Plaintiffs’ Count V alleges that Defendant “engaged in a series of
unfair and deceptive acts and practices directed against the Plaintiffs under Pennsylvania’s
Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1, et seq.” (Complaint, ¶
55). Paragraph 56 of the Complaint alleges simply that the “unfair and deceptive acts and
representations are outlined in [the] Complaint’s foregoing paragraphs,” and paragraph 57
alleges that “Defendants concealed and failed to disclose their intent to accept full payment on
the contract and then not complete or properly complete Plaintiffs’ house and driveway.”
(Complaint, ¶¶ 56, 57).
Because Plaintiffs have not alleged a specific violation of any subsection under the
Pa.U.T.P.C.P.L, and instead have merely cited to the title section of that statute, it is unclear
exactly what Plaintiffs’ intend to prove at trial and how Defendant’s alleged conduct has risen to
the level of a violation of that statute. Nor does Plaintiffs’ Complaint fully summarize the
material facts; at best, Plaintiffs’ Complaint provides notice to Defendant of Plaintiffs’ claim and
the grounds upon which it rests. Pennsylvania Rule of Civil Procedure 1019(a) requires,
however, that the complaint also formulate the issues by summarizing those facts essential to
15
support the claim. Because the Complaint fails to do so, Defendant’s seventh preliminary
objection will be sustained, and Plaintiffs will be granted leave to amend.
ORDER
th
AND NOW, this 12 day of January, 2012, upon consideration of the Preliminary
Objections filed by Defendant, Dressler Contracting, LLC, and the response filed thereto, the
Preliminary Objections of the Defendant are SUSTAINED in part and OVERRULED in part.
For reasons contained in the accompanying opinion, Defendant’s first, second, fifth, and
sixth Preliminary Objections are hereby OVERRULED. Furthermore, Defendant’s third, fourth,
and seventh Preliminary Objections are SUSTAINED, and Plaintiffs are granted leave to amend
their pleading.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Hillary P. Vesell, Esquire
For the Plaintiffs
Jason P. Kutulakis, Esquire
For the Defendant
:rlm
16
ROSS PELUSI and
: IN THE COURT OF COMMON PLEAS OF
MARY PELUSI,
: CUMBERLAND COUNTY, PENNSYLVANIA
Plaintiffs
:
:
v.
: CIVIL DOCKET NO.: 11-5527
:
DRESSLER CONTRACTING, LLC,
Defendant.
:
: JURY TRIAL DEMANDED
IN RE: DEFENDANT’S PRELIMINARY OBJECTIONS
BEFORE HESS, P.J. AND EBERT, J.
ORDER
th
AND NOW, this 12 day of January, 2012, upon consideration of the Preliminary
Objections filed by Defendant, Dressler Contracting, LLC, and the response filed thereto, the
Preliminary Objections of the Defendant are SUSTAINED in part and OVERRULED in part.
For reasons contained in the accompanying opinion, Defendant’s first, second, fifth, and
sixth Preliminary Objections are hereby OVERRULED. Furthermore, Defendant’s third, fourth,
and seventh Preliminary Objections are SUSTAINED, and Plaintiffs are granted leave to amend
their pleading.
BY THE COURT,
___________________________
Kevin A. Hess, P.J.
Hillary P. Vesell, Esquire
For the Plaintiffs
Jason P. Kutulakis, Esquire
For the Defendant
:rlm