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HomeMy WebLinkAbout2015-6787 RYAN WILLIAMSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : v. : NO. 2015-06787 : PENNSYLVANIA REMODELERS, INC., : CIVIL ACTION – LAW COMFORT ZONE HEATING AND : COOLING, and FUNK’S DRILLING, : JURY TRIAL DEMANDED Defendants : : IN RE: PRELIMINARY OBJECTIONS TO COMPLAINT OF DEFENDANT PENNSYLVANIA REMODELERS, LLC, DEFENDANT COMFORT ZONE HEATING AND COOLING, AND DEFENDANT FUNK’S DRILLING BEFORE GUIDO, P.J., HESS, S.J., AND BREWBAKER, J. OPINION AND ORDER OF COURT BREWBAKER, J., June 28, 2016 Plaintiff Ryan Williamson filed a multi-count Complaint against Defendants Pennsylvania Remodelers, Inc., Comfort Zone Heating and Cooling (Comfort Zone), and Funk’s Drilling (Funk) for alleged breach of contract, negligence, and violations of various statutes. Before the Court are the individual Preliminary Objections to the Complaint of Defendant Pennsylvania Remodelers, Defendant Comfort Zone, and Defendant Funk. According to the Complaint, Plaintiff contracted with Defendant Pennsylvania Remodelers in October 2014 for a variety of work to Plaintiff’s residence, including the 1 installation of a geothermal HVAC system, at a total cost of $65,000. Plaintiff paid $9,000 to Defendant Pennsylvania Remodelers as a down payment for the purchase of construction 23 materials to begin work on the project. The construction was commenced in October 2014. A few days later, Plaintiff took a representative from Defendant Pennsylvania Remodelers to see a 1 Complaint, filed December 11, 2015, ¶¶ 4-5. 2 Complaint, ¶ 6. 3 Complaint, ¶ 8. residence in Plaintiff’s neighborhood and asked if his front could be made to resemble that of his 4 neighbor. The representative allegedly assured Plaintiff that this could be done. In late October 2014, Defendant Funk began drilling to install the geothermal HVAC system. The Complaint alleges that during the course of unloading and moving the drilling equipment, employees of Defendant Funk caused several cracks to Plaintiff’s sidewalk. The Complaint further alleges that as a result of Defendant Funk’s drilling, Plaintiff’s basement 5 flooded. There are also a variety of allegations about the digging of an outflow trench from the 6 geothermal system and representations made by “the drill workers” concerning a permit. The installation of the geothermal system is alleged to have been completed in early November 2014. Soon after work had begun and the installation of the geothermal system was complete, Defendant PA Remodelers allegedly informed Plaintiff that an additional $15,000 would be required to make Plaintiff’s porch resemble his neighbors’ porch. When Plaintiff protested the additional expenses, Defendant Pennsylvania Remodelers vacated the premises, removed all materials, and informed Plaintiff that he was to pay Defendant Comfort Zone directly for the 7 installation of the geothermal unit. After the installation of the heating and cooling system was complete, Plaintiff began complaining to Defendant Comfort Zone that the system was not providing heat to his home. Despite numerous visits by Defendant Comfort Zone as well as a representative for the manufacturer of the system, the geothermal system continually failed to operate properly over 4 Complaint, ¶¶ 9-10. 5 Complaint, ¶¶ 11-14. 6 Complaint, ¶¶ 15-17. 7 Complaint, ¶¶ 23-26. 2 8 the course of the winter. To heat his home, Plaintiff alleges that he had to rely on the backup 9 electric heater which was both expensive and unable to adequately heat his home. The Complaint also alleges that as part of the efforts to fix the geothermal system, Defendants Funk and Comfort Zone caused further damage to Plaintiff’s property. This damage allegedly included flooding in the basement due to additional drilling by both Defendants Funk and Comfort Zone, damage to a corner of Plaintiff’s driveway by Defendant Funk, and damage 10 to a water heater by Defendant Comfort Zone. Plaintiff was also required to pay additional 11 amounts for the services provided to remedy the issues. Eventually Plaintiff hired a new contractor to inspect the property, who informed Plaintiff that the work had been done poorly. Plaintiff received an estimate of $25,925 to remove the old geothermal system and install a 12 proper and functioning one. Plaintiff filed a complaint on December 11, 2015, alleging six causes of action. Three of the claims are against Defendant Pennsylvania Remodelers: Count I for breach of contract, Count II for negligent hiring, and Count V for violation of the Home Improvement Consumer Protection Act (“HICPA”) and the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”). Two of the claims are against Defendant Comfort Zone: Count III for negligence, and Count VI for violation of HICPA and UTPCPL. The final claim is against Defendant Funk for negligence (Count IV). Defendant Funk filed preliminary objections to the Complaint on January 6, 2016, Defendant Comfort Zone filed preliminary objections on January 11, 2016, and Defendant 8 Complaint, ¶ 64. 9 Complaint, ¶¶ 27-50, 55, 58. 10 Complaint, ¶¶ 51-54 11 Complaint, ¶¶ 56-57. 12 , Complaint¶¶ 61-63. 3 Pennsylvania Remodelers filed preliminary objections on January 14, 2015. Oral arguments on all the preliminary objections were heard on June 3, 2016. Pennsylvania is a fact pleading state, meaning a complaint must not only give the defendant notice of the plaintiff’s claims, but also formulate the issues by summarizing the facts necessary to support the claim. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008). In general, when ruling on preliminary objections, the court must accept as true all well pleaded facts, together with such reasonable inferences as may be drawn from those facts. The court need not accept the pleader’s conclusions or averments of law. Santiago v. Pennsylvania National Mutual Insurance Co., 613 A.2d 1235, 1238-39 (Pa. Super. 1992). A preliminary objection in the nature of a demurrer is properly granted when the contested pleading is legally insufficient. Cardenas v. Schober, 783 A.2d 317, 321 (Pa. Super. 2001). Any doubt is resolved in favor of overruling the preliminary objections. Mahoney v. Furches, 468 A.2d 458, 462 (Pa. 1983). The Court may only consider the issues solely on the basis of the pleadings and may not consider testimony or any other evidence to dispose of the legal issues. Kirschner v. K & L Gates LLP, 46 A.3d 737, 747 (Pa. Super. 2012). Preliminary Objections of Defendant Pennsylvania Remodelers Defendant Pennsylvania Remodelers’ first argument is that Plaintiff failed to attach documents supporting his claims for injuries allegedly resulting directly and proximately from the actions of the defendants. Defendant Pennsylvania Remodelers also argues that the “gist of the action” doctrine precludes Plaintiff’s tort claims under Count II. Defendant Pennsylvania Remodelers contends that any duty it owed to Plaintiff arose under the contract and not general social policies. Alternatively, Defendant Pennsylvania Remodelers contends that assuming the 4 gist of the action doctrine does not apply, the economic loss doctrine precludes recovery under Count II because the loss in the present case was caused by the negligence of another, namely Defendant Comfort Zone, and the loses were purely economic. Finally, Defendant Pennsylvania Remodelers argues that Plaintiff’s claims at Count V under HICPA and UTPCPL are legally insufficient because Plaintiff was the one to request a change to the scope of the project. Plaintiff argues that he was not required to attach any writing to prove damages. Moreover, Plaintiff argues that Count II is not based on the existence of a contract but rather based upon the alleged negligent hiring of Defendant Comfort Zone, which is a social duty. Plaintiff also contends that the economic loss doctrine does not apply because his losses are not purely economic, and that he has alleged a negligent misrepresentation claim and there was privity with Pennsylvania Remodelers, which are both exceptions to the economic loss doctrine. Finally, Plaintiff contends that his claims under HICPA and UTPCPL are legally sufficient because Defendant Pennsylvania Remodelers demanded additional funding after a building permit had been secured and a contract had been agreed to, including the modification of the front porch. The gist of the action doctrine serves to maintain the distinction between contract and tort claims and prevent plaintiffs from recasting purely breach of contract claims into tort claims. eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002). It is the substance of the duty in question that determines whether the claim is one of contract or of tort. As our Supreme Court has explained, If the facts of a particular claim establish that the duty breached is one created by the parties by the terms of their contract — i.e., a specific promise to do something that a party would not ordinarily have been obligated to do but for the existence of the contract — then the claim is to be viewed as one for breach of contract. If, however, the facts establish that the claim involves the defendant's violation of a broader social duty owed to all individuals, which is 5 imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort. Bruno v. Erie Insurance Co., 106 A.3d 48, 69 (Pa. 2014) (internal citations omitted). The mere existence of a contract between two parties does not necessarily mean that a claim must be for breach of contract. A party to a contract may in fact be liable for “negligently performing contractual obligations and thereby causing injury or other harm to another contracting party.” Id. In such a case, the contract serves as a vehicle to establish the relationship between the two parties during which the tort of negligence was committed. Id. at 70. According to the economic loss doctrine, no cause of action exists for negligence that results solely in economic damages unaccompanied by physical injury or property damage. Spivack v. Berks Ridge Corp., 586 A.2d 402 (Pa. Super. 1991). However, economic losses may be recovered under a negligent misrepresentation claim. Bilt-Rite Contractors, Inc. v. Architectural Studio, 866 A.2d 270, 284 (Pa. 2005) (citing Nota Construction Corp. v. Keyes Associates, 694 N.E.2d 401, 405 (Mass. App. Ct. 1998). We hold that Count II of the Complaint is not barred by the gist of the action doctrine. While the basis of the relationship between the parties is founded upon the existence of a contract, the allegations in Count II do not concern a contractual duty but rather a general social duty to hire a non-negligent subcontractor to perform the required work. However, we agree with Defendant Pennsylvania Remodelers that recovery under Count II, as drafted, is barred by the economic loss doctrine. Though Plaintiff alleges he suffered physical harm, those injuries were not caused by Defendant Pennsylvania Remodelers, but rather by the other two defendants. Also, no Pennsylvania court has found that a negligent hiring claim is an exception to the economic loss doctrine, and we decline to recognize such an exception at this time. Further, we do not agree with Plaintiff that he has alleged a negligent misrepresentation claim in the 6 Complaint. A negligent misrepresentation claim requires: (1) a misrepresentation of a fact; (2) made in circumstances where the misrepresenter should have known it was false; (3) with the intent to induce another to rely on it; and (4) which results in injuries from the justifiable reliance upon the misrepresentation. Borz v. Noon, 729 A.2d 555, 561 (Pa. 1999). Count II is entitled “Negligent Hiring” not “Negligent Misrepresentation,” and the facts alleged do not support a negligent misrepresentation claim. As Plaintiff may be able to allege sufficient facts to support a negligent misrepresentation claim against Defendant Pennsylvania Remodelers, we will sustain the preliminary objection but grant leave for Plaintiff to amend the Complaint. Regarding Plaintiff’s claims under HICPA and UTPCPL, we agree with Defendant that the allegations in Count V are not legally sufficient to support a cause of action, even assuming all facts stated in the Complaint are true. Section 517.9(5) of HICPA states that a party shall not “\[a\]bandon or fail to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor.” 73 Pa. C.S. § 517.9(5). Section 517.9(6) states that a person shall not “\[d\]eviate from or disregard plans or specifications, in any material respect, without a written change order dated and signed by both the contractor and the owner, which contains the accompanying price changes for each deviation.” Id. § 517.9(6). Finally, Section 517.9(8)(iii) states that a person shall not “advertise or offer … to perform a home improvement if the person does not intend to … \[c\]harge for the home improvement at the price advertised or offered.” Id. §517.9(8)(iii). A violation of HICPA is also deemed to be a violation of the UTPCPL. Id. § 517.10. The Complaint states that Plaintiff and Defendant Pennsylvania Remodelers entered into a contract on October 13, 2014. The Complaint further alleges that Plaintiff took a representative from Defendant Pennsylvania Remodelers to a neighboring home on October 28, 7 2014 and requested that Plaintiff’s home be modeled on the nearby home. Defendant Pennsylvania Remodelers later notified Plaintiff that this work would require an additional $15,000. The facts as alleged indicate that Plaintiff was the one who requested a change in the work to be done after the contract had already been signed. Defendant Pennsylvania Remodelers was entitled to request additional funds to comply with Plaintiff’s new request. Consequently, there was no violation of Section 517.9(8)(iii) of HICPA and we will sustain Defendant Pennsylvania Remodelers preliminary objections to Count V and dismiss that count. Lastly, we agree with Plaintiff that he was not required to attach copies of documents supporting his claim for damages. Pennsylvania Rule of Civil Procedure 1019(i) requires a writing to support a claim, not a writing to support an amount for damages. Pa. R.C.P. 1019(i). Plaintiff has complied with the requirements of the Rules of Civil Procedure and therefore this last preliminary objection of Defendant Pennsylvania Remodelers will be overruled. Preliminary Objections of Defendant Comfort Zone Defendant Comfort Zone raises similar objections as Defendant Pennsylvania Remodelers in that they too argue that Plaintiff’s claims are barred by the gist of the action doctrine and that Plaintiff’s claims under HICPA and UTPCPL are legally insufficient. Plaintiff contends that there was no contractual relationship between the parties, rather only between Plaintiff and Defendant Pennsylvania Remodelers, and therefore the only duty owed by Defendant Comfort Zone to Plaintiff was based on social policy. Also, Plaintiff argues that substandard work is sufficient for there to be a violation of HICPA and UTPCPL. We agree with Plaintiff that no contractual relationship existed between him and Defendant Comfort Zone, and therefore the gist of the action doctrine does not apply. 8 Examining the facts alleged in the Complaint, the contract that existed was between Defendant Pennsylvania Remodelers and Plaintiff; there was no contract alleged between Defendant Comfort Zone and Plaintiff. Plaintiff’s negligence claim against Defendant Comfort Zone is thereby collateral to the contract. Bash v. Bell Telephone Co., 601 A.2d 825, 829 (Pa. Super. 1992) (citing Closed Circuit Corp. v. Jerrold Electronics Corp., 426 F.Supp. 361, 364 (E.D. Pa. 1977)). Because there was no contract between Plaintiff and Defendant Comfort Zone, the duty owed is not based on a contractual duty but rather a social duty, and the gist of the action doctrine does not apply. Defendant’s preliminary objection to Count III is overruled. Turning to Defendant’s objections to Count VI under HICPA and UTPCPL, we hold that the allegations in the Complaint, even accepting them as true, are legally insufficient. The Complaint alleges that Defendant Comfort Zone misrepresented that the geothermal system was 13 adequate to meet the heating and cooling needs of Plaintiff’s home. However, this behavior does not violate the HICPA sections cited in the Complaint. Defendant Comfort Zone did not abandon or fail to perform the project; the complaint clearly indicates that they performed, though allegedly in a negligent manner. 73 Pa. C.S. §517.9(5). Nor did they deviate or disregard the plans or specifications stated in the contract except as agreed to by Plaintiff, or falsely advertise the price of a home improvement. 73 Pa. C.S. §§517.9(6), 8(iii). As a result, we will sustain Defendant Comfort Zone’s preliminary objections to Count VI and dismiss that count. Preliminary Objections of Defendant Funk Defendant Funk raised two objections: that the Complaint lacks specificity in certain paragraphs and that the Complaint fails to state a legally sufficient cause of action. Defendant 13 Complaint, ¶93. 9 Funk contends that Paragraphs 5, 15-17, and 82 of the Complaint lack sufficient specificity. Specifically, Defendant Funk notes that Paragraph 5 refers only to a single Defendant agreeing to a contract when there are three defendants in the case, Paragraphs 15-17 refer to “the drill workers” without specifying which defendant the workers were employed by, and Paragraph 82 makes no reference to the date Defendant Funk was hired or who was spoken to about the work. Plaintiff counters that in context the paragraphs in question provide sufficient detail for Defendant Funk to file an answer and prepare relevant defenses. Pennsylvania is a fact pleading state in which the complaint must provide the defendant with notice of the basis of the claim and a summary of the facts necessary to support the claim. Lerner v. Lerner, 954 A.2d 1229, 1235 (Pa. Super. 2008). The complaint must provide sufficient detail to enable the defendant to respond to the complaint and to raise and prepare applicable defenses. McNeil v. Jordan, 814 A.2d 234, 237-38 (Pa. Super. 2002). Pennsylvania Rule of Civil Procedure 1028(a)(3) provides that lack of specificity may be raised by preliminary objection. Pa. R.C.P. 1028(a)(3). In determining whether the allegations are sufficiently clear, the court must examine the paragraph in question in the context of all of the other allegations in the complaint. Yacoub v. Lehigh Valley Medical Associates P.C., 805 A.2d 579, 589 (Pa. Super 2002). We hold that the allegations in Paragraph 15-17 are sufficiently clear for Defendant Funk to answer the Complaint and prepare any relevant defenses. While the Complaint only references “drill workers,” when read in relation to the other paragraphs the “drill workers” were clearly employees of Defendant Funk. Similarly, we agree with Plaintiff that it is clear from the context of the Complaint which defendant is referred to in Paragraph 5 (Defendant Pennsylvania Remodelers), and Paragraph 82 is sufficient when read in context with the other paragraphs 10 regarding the work performed by Defendant Funk. As a result, we will overrule Defendant Funk’s preliminary objections to Paragraphs 5, 15-17, and 82 of the Complaint. Next, we address Defendant Funk’s preliminary objection that Count IV fails to plead a legally sufficient cause of action. Defendant Funk argues that the Complaint does not allege sufficient facts to support the legal conclusion that it owed Plaintiff a duty of care or that such a duty, if it exists, was breached. Moreover Defendant Funk alleges that the negligence claim is barred by the gist of the action doctrine. Plaintiff counters that the Complaint alleges sufficient facts to support a claim that Defendant Funk was negligent in performing the drill work and caused at least some of the resulting damage. Additionally, Plaintiff argues that gist of the action doctrine does not bar its claim because Defendant Funk “owed a duty of reasonable care while 14 performing well drilling and ditching digging.” As we held in regard to Defendant Comfort Zone, because there was no contract between Defendant Funk and Plaintiff, the gist of the action doctrine does not apply to bar Plaintiff’s claim. We also disagree with Defendant Funk that the Complaint does not support the claim that it owed a duty to Plaintiff or that such a duty was breached. The Complaint alleges that Defendant Funk was hired as part of the contract between Defendant Pennsylvania Remodelers and Plaintiff to perform the required drill work. The Complaint details the actions taken by Defendant Funk that are alleged to have been negligent, including, inter alia, damaging Plaintiff’s sidewalk. We hold that these allegations are sufficient to support Plaintiff’s claims that Defendant Funk both owed and breached a duty to Plaintiff. Defendant Funk’s final 15 preliminary objection will consequently be overruled. 14 Plaintiff’s Brief In Response to Defendant Funk’s Preliminary Objections, filed May 27, 2016, at 7. 15 Plaintiff also seeks counsel fees in connection with Defendant Funk’s preliminary objections as a sanction for “dilatory, obdurate or vexatious conduct.” 42 Pa. C.S. §2503(7). Plaintiff claims that Defendant Funk has “cherry picked” a few items to complain about. We do not agree with Plaintiff that Defendant Funk’s filing of Preliminary 11 In summary, we sustain Defendant Pennsylvania Remodeler’s preliminary objections to Counts II and V, and Defendant Comfort Zone’s preliminary objections to Count VI. We overrule all the other preliminary objections by Defendants Pennsylvania Remodelers, Comfort Zone, and Funk. Plaintiff is granted leave to amend the Complaint. ORDER AND NOW, this _____ day of June, 2016, upon consideration of the Preliminary Objections of Defendant Pennsylvania Remodelers, Defendant Comfort Zone, and Defendant Funk, the Preliminary Objections of Defendants Pennsylvania Remodelers and Comfort Zone are SUSTAINED as to Counts II, V, and VI of the Complaint and those counts are dismissed OVERRULED without prejudice. The remaining Preliminary Objections of the Defendants are . DENIED Plaintiff’s request for attorney’s fees from Defendant Funk is . Plaintiff is granted leave to file an Amended Complaint within twenty (20) days of this Order. BY THE COURT, __________________________ Jessica E. Brewbaker, J. Objections represents “dilatory, obdurate or vexatious conduct.” Defendant Funk raised valid objections in a case involving multiple defendants and multiple causes of action. Moreover, Defendants Pennsylvania Remodelers and Comfort Zone also filed Preliminary Objections, meaning there was no delay caused by Defendant Funk. Plaintiff’s request for sanctions will therefore be denied. 12 RYAN WILLIAMSON, : IN THE COURT OF COMMON PLEAS OF Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA : : v. : NO. 2015-06787 : PENNSYLVANIA REMODELERS, INC., : CIVIL ACTION – LAW COMFORT ZONE HEATING AND : COOLING, AND FUNK’S DRILLING, : JURY TRIAL DEMANDED Defendants : : IN RE: PRELIMINARY OBJECTIONS TO COMPLAINT OF DEFENDANT PENNSYLVANIA REMODELERS, LLC, DEFENDANT COMFORT ZONE HEATING AND COOLING, AND DEFENDANT FUNK’S DRILLING BEFORE GUIDO, P.J., HESS, S.J., AND BREWBAKER, J. ORDER OF COURT th AND NOW, this 28 day of June, 2016, upon consideration of the Preliminary Objections of Defendant Pennsylvania Remodelers, Defendant Comfort Zone, and Defendant Funk, the Preliminary Objections of Defendants Pennsylvania Remodelers and Comfort Zone are SUSTAINED as to Counts II, V, and VI of the Complaint and those counts are dismissed OVERRULED without prejudice. The remaining Preliminary Objections of the Defendants are . DENIED Plaintiff’s request for attorney’s fees from Defendant Funk is . Plaintiff is granted leave to file an Amended Complaint within twenty (20) days of this Order. BY THE COURT, __________________________ Jessica E. Brewbaker, J. 14