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HomeMy WebLinkAbout92-3089 CivilCARL D. HABIG and IN THE COURT OF COMMON PLEAS OF ANNE H. HABIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiffs V. CIVIL ACTION - LAW MARY JANE SPENCER, t/a and d/b/a WINDSOR RIDGE HOMES, and JOHN H. HOCKER, Defendants NO. 3089 CIVIL 1992 IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER, BAYLEY and OLER JJ. ORDER OF COURT AND NOW, thisgr4day of January, 1993, upon consideration of Defendants' preliminary objections and for the reasons stated in the accompanying Opinion, Defendants' demurrer to counts I, II, and III of the complaint as they relate to Defendant John H. Hocker is SUSTAINED, with leave granted to Plaintiffs to amend within 10 days of this date; the words "but not limited to" are STRICKEN from paragraph 15 of the complaint; in all other respects the preliminary objections are DISMISSED. Defendants are granted 20 days from service of any amended complaint to file an answer or preliminary objections, and, in the absence of an amended complaint, 30 days from this date to file an answer. BY THE COURT, James D. Bogar, Esq. Andrew C. Sheely, Esq. Attorneys for Plaintiff J. Sally J. Winder, Esq. Attorney for Defendants :rc CARL D. HABIG and IN THE COURT OF COMMON PLEAS OF ANNE H. HABIG, CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff's V. CIVIL ACTION - LAW MARY JANE SPENCER, t/a and d/b/a WINDSOR RIDGE HOMES, and JOHN H. HOCKER, Defendants NO. 3089 CIVIL 1992 Oler, J. IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS BEFORE HOFFER, BAYLEY and OLER JJ OPINION AND ORDER OF COURT This case arises primarily out of a construction contract between plaintiff homeowners and a contractor. The complaint contains counts titled breach of contract, construction delays, breach of warranty, and unlawful acts and trade practices. At issue presently are preliminary objections to the complaint. For the reasons stated herein, these will be sustained in part and denied in part. Statement of facts. The complaint alleges that plaintiffs, Carl D. Habig and Anne H. Habig, signed a construction contract with defendant Mary Jane Spencer, trading and doing business as Windsor Ridge Homes.' The purpose of the contract, according to the complaint, "was that Defendant Mary Jane Spencer, t/a and d/b/a Windsor Ridge Homes, and Defendant John H. Hocker, would build and construct a new addition [to a house owned by plaintiffs] in accordance with certain plans and specifications [contained therein]."' Defendant Hocker, who was neither a signatory ' Plaintiffs' complaint, Exhibit A. 2 Plaintiffs' complaint, paragraph 4. No. 3089 Civil 1992 to nor mentioned in the contract, is alleged "[a]t all times following the execution of the ... contract [to have] acted in his individual capacity or acted within the scope of his employment with Defendant Mary Jane Spencer, t/a and d/b/a Windsor Ridge Homes, and as agent for Defendant Mary Jane Spencer, t/a and d/b/a Windsor Ridge Homes. 113 In a count titled breach of contract, the complaint alleges that a deviation from the plans and specifications resulted in a five-foot error in the footer layout of the foundation of the addition and that numerous other deficiencies existed in the construction. Typical of specificity with regard to such deficiencies are subparagraphs of the pleading complaining of such matters as: a. failure to substantially complete an electrical wiring and outlet system throughout the new addition pursuant to agreements, plans and specifications.... d. failure to properly construct and complete an outside patio in a quality and workmanlike manner in order to prevent water drainage and bug infestation according to agreements, plans and specifications.... o. failure to substantially construct and complete a staircase, bannister and sideboard return in a quality and workmanlike manner according to agreements, plans and specifications.... bb. failure to substantially complete or install an operating central vacuum system according to agreements, 3 Plaintiffs' complaint, paragraph 5. Old No. 3089 Civil 1992 plans and specifications....' The complaint specifies the amount which plaintiffs expended to complete or repair each of the enumerated items,5 and avers that plaintiffs gave notice of these deficiencies to defendants.' The complaint also alleges additional, unspecified deficiencies by introducing the itemized list of deficiencies with the words "including but not limited to."' In a count titled construction delays, the complaint alleges a failure by defendants to complete the construction by a certain time, resulting in additional expenses to plaintiffs.' In a count titled breach of warranty, the complaint asserts that the aforesaid deficiencies "breached the express and implied warranties of habitability and merchantability with Plaintiffsi' under the Uniform Commercial Code.l' Finally, in a count titled unlawful acts and trade practices, the complaint alleges violations by defendants of Pennsylvania's Unfair Trade Practices and Consumer ' Plaintiffs' complaint, paragraph 15. 8 Plaintiffs' complaint, paragraph 19. 6 Plaintiffs' complaint, paragraph 15. ' Plaintiffs' complaint, paragraph 15. 8 Plaintiffs' compliant, paragraphs 20-24. 9 Plaintiffs' complaint, paragraph 29. io Plaintiffs' complaint, paragraph 28. 3 No. 3089 Civil 1992 Protection Law." In this regard, it alleges that unfair and deceptive trade practices were committed in the form, inter alia, of misrepresentation that an electrical system had been inspected, overstatement of the number of coats of paint applied to the construction, provision of inferior lumber, improper billing techniques, and retention of funds contrary to their promised allotment.12 Defendants' preliminary objections are in the form of a demurrer and, in the alternative, a motion for a more speck pleading. Defendants' brief in support of the objections emphasizes the paucity of facts upon which contractual liability of defendant Hocker can be predicated, an alleged lack of sufficient specificity as to deficiencies in the construction work, the absence in the construction contract of a completion date relied upon by plaintiffs, an alleged lack of basis for Uniform Commercial Code liability, and an alleged absence of facts as pleaded which would warrant relief under the Unfair Trade Practices and Consumer Protection Law." Statement of law. With respect to a demurrer, it has been said that "[a] demurrer admits all well -pleaded material facts in the pleading which it attacks, as well as all inferences which may reasonably be deduced therefrom." International Association of Firefighters v. Loftus, 80 Pa. Commw. 329, 333, 471 A.2d 605, 607 (1984). 11 Act of December 17, 1968, P.L. _, No. 387, as amended, 73 P.S. H201-1 et seq. (1992 Supp.). 12 Plaintiffs' complaint, paragraph 35. 13 Defendants' Brief in Support of Preliminary Objections, at 2-5. 4 No. 3089 Civil 1992 "Preliminary objections in the nature of a demurrer ... will be sustained only when it appears with certainty that the law permits no recovery under the facts pled, and any doubts in the determination should be resolved by overruling the objections." Paone v. City of Scranton, 9 Pa. D. & CAth 115, 117 (Montgomery Co. 1991); see Department of Transportation v. Bethlehem Steel Corp., 33 Pa. Commw. 1, 11, 380 A.2d 1308, 1313 (1977). "[A] demurrer will not be sustained on the ground that a pleading is not sufficiently specific...." 2 Goodrich Amram 2d §1017(b):27, at 272 (1991). And, "[i]f any part of a pleading states a sufficient cause of action, the demurrer to the pleading must be overruled." 2 Anderson, Pennsylvania Civil Practice §1017.180, at 579 (1976).14 On the other hand, "[t]he want of definite allegations essential to a cause of action renders a complaint subject to demurrer." 29 P.L.E. Pleading §123, at 433 (1960). "If [a] demurrer is sustained, the question arises whether the court should merely require the filing of an amended pleading by the adverse party or whether it should enter a final judgment in favor of the demurrant." 2 Anderson, Pennsylvania Civil Practice §1017.175, at 570 (1976). In this regard, there is a "policy of the law against entering final judgment on demurrer,i15 and "it is generally an abuse of discretion to dismiss a complaint without leave to amend." Harley Davidson Motor Co., " This is not to suggest that a demurrer may not be sustained as to part of a pleading. See 29 P.L.E. Pleading §127, at 447 (1960); 2 Anderson, Pennsylvania Civil Practice §1017.183, at 593 (1976). " 2 Anderson, Pennsylvania Civil Practice §1017.175, at 571 (1976). 5 No. 3089 Civil 1992 Inc. v. Hartman, 296 Pa. Super. 37, 42, 442 A.2d 284, 286 (1982). "Where there is some reasonable possibility that an amendment of the attacked pleading can be accomplished successfully, the right to amend should not be withheld." 5 Standard Pennsylvania Practice 2d §25:73, at 241-42 (1982); see Otto v. American Mutual Insurance Co., 482 Pa. 202, 393 A.2d 450 (1978). With respect to a motion for a more specific pleading, it has been said that such a motion is designed "to insure that an adverse party's right and ability to answer and defend will not be unduly impaired by a pleader's vagueness in stating the grounds of his suit, and to insure that the adverse party is adequately informed of the issues he must meet." 5 Standard Pennsylvania Practice §25:52, at 209 (1962). The motion will be denied "where the objecting party may be presumed to have at least as much knowledge of the information sought as does the pleader [and] where the objecting party seeks the pleading of evidence."" "In general, when a party states a case in a manner that fully advises an opponent of the nature of the case and of the matters with which the opponent will be confronted at trial, there is no need for a motion for a more speck pleading; the opponent should seek discovery if he or she needs more information ...." 2 Goodrich Amram 2d §1017(b):24, at 268 (1991). On the other hand, "boiler plate averments" in a complaint which subject a defendant to any conceivable theory of liability are objectionable. Winters v. Lonegran, is 5 Standard Pennsylvania Practice §25:52, at 209 (1962). C No. 3089 Civil 1992 36 Cumberland L.J. 98,103 (1985); see Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Language of the including "but not limited to" variety in the listing of facts of negligence in a complaint has been stricken on this basis. Wiest v. L & B Poultry, 112 Dauphin Co. 144 (1992).17 With respect to an agent's liability on a contract of the principal, "ft]he law is well settled in Pennsylvania that in assumpsit actions on a contract which is negotiated by an agent for a disclosed principal it is only the principal and not the agent who is the proper party to be sued ...." Eastern Gunite Co. v. Livengood, 71 Montgomery Co. 378, 380 (1955). Thus, "a demurrer will be sustained as to a co- defendant alleged by the plaintiff to have acted as the authorized agent of a disclosed principal since on the facts such agent has no liability to the plaintiff." 2 Anderson, Pennsylvania Civil Practice §1017.182, at 590 (1976); see Eastern Gunite Co. V. Livengood, 71 Montgomery Co. 378 (1955). With respect to an employee's liability on a contract of the employer, the general rule has been quoted that "no person can be sued for breach of contract unless he is a party to the contract," with an exception being noted where the breach is a result of the employee's fraud. Allen Organ Co. v. North American Rockwell Corp., 363 F. Supp. 1117, 1130 (E.D. Pa. 1973) (Pennsylvania law). With respect to time for completion of a contractual obligation where none is 17 Cf. Wenger v. Beachy, No. 934 Civil 1992 (Cumberland Co.) (January 14, 1993). 7 No. 3089 Civil 1992 stated in the agreement, the general rule is that "where no time for performance is provided in the written instrument the law implies that it shall be done within a reasonable time depending upon the nature of the business." Field v. Golden Triangle Broadcasting, Inc., 451 Pa. 410, 417-18, 305 A.2d 689, 694 (1973), cert. denied, 414 U.S. 1158 (1974), quoting LeAowitz v. Hummel Furniture Co., 385 Pa. 244, 247,122 A.2d 8021 804 (1956). With respect to warranties applicable to residential construction, it has been held in certain circumstances that a builder, "upon executing [a] construction contract with [a property owner], impliedly warrant[s] that [the owner's] house [will] be constructed in a reasonably workmanlike manner and it [will] be fit for habitation as a residential dwelling." Groff v. Pete Kingsley Building, Inc., 374 Pa. Super. 377, 385, 543 A.2d 128,132 (1988). Finally, with respect to conduct constituting a violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, it may be noted that among the types of conduct classified as unfair or deceptive acts or practices "are (a) [r] epresenting that goods or services are of a particular standard, quality or grade ... if they are of another," (b) "[flailing 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," (c) "[m]aking repairs, improvements or replacements on ... real ... property, of a nature or quality inferior to or below the standard of that agreed to in writing," No. 3089 Civil 1992 and (d) "[e]ngaging in any other fraudulent conduct which creates a likelihood of confusion or of misunderstanding."18 Application of law to facts. In the present case, the facts pled in the complaint do not support a claim based upon breach of the construction contract against defendant Hocker, notwithstanding his alleged position as an agent or employee of the contractor. For this reason, Defendants' preliminary objection in the form of a demurrer will be sustained as to the counts of the complaint for breach of the agreement, as they relate to him.19 In accordance with the policy against entering judgment on a demurrer, leave will be granted to Plaintiffs to amend the complaint in this regard to the extent that they are able. As to specificity of the complaint as it relates to alleged deficiencies in construction, the words "but not limited to" will be stricken.20 Otherwise, it is believed that the areas of alleged construction deficiencies are sufficiently specified to permit relegation of further detail to the discovery process. Based upon the foregoing discussion of imputed time for performance, warranties, unfair or deceptive acts or practices under the Unfair Trade Practices and Consumer Protection Law, demurrers and motions for a more specific pleading, the " Act of December 17, 1968, P.L. _, No. 387, §2, as amended, 73 P.S. §201-2(4)(vii), (xiv), (xvi), (xvii) (1992 Supp.). " These are counts I (breach of contract), II (construction delays), and III (breach of warranty). 20 These words will be stricken from paragraph 15 of the complaint. E No. 3089 Civil 1992 Defendants' remaining preliminary objections will be dismissed, notwithstanding the absence in the contract of a date for completion of construction allegedly relied upon by Plaintiffs, a possibly inappropriate reference in the complaint to the Uniform Commercial Code in connection with residential warranties, and the inclusion in the complaint of several alleged acts which may not qualify as violations of the Unfair Trade Practices and Consumer Protection Law. For these reasons, the following Order will be entered: ORDER OF COURT AND NOW, this 20day of January, 1993, upon consideration of Defendants' preliminary objections and for the reasons stated in the accompanying Opinion, Defendants' demurrer to counts I, II, and III of the complaint as they relate to Defendant John H. Hocker is SUSTAINED, with leave granted to Plaintiffs to amend within 10 days of this date; the words "but not limited to" are STRICKEN from paragraph 15 of the complaint; in all other respects the preliminary objections are DISMISSED. Defendants are granted 20 days from service of any amended complaint to file an answer or preliminary objections, and, in the absence of an amended complaint, 30 days from this date to file an answer. 10 No. 3089 Civil 1992 James D. Bogar, Esq. Andrew C. Sheely, Esq. Attorneys for Plaintiff Sally J. Winder, Esq. Attorney for Defendants :rc BY THE COURT, s/ J. Wesley Oler, Jr. J. 11