Opinion
2532 EDA 2022 J-S10029-23
05-05-2023
DENISE PICCIOLI Appellant v. FAUST HEATING AND A/C CO., INC.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Order Entered September 6, 2022 In the Court of Common Pleas of Northampton County Civil Division at No(s): C-48-CV-2021-07544
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM
LAZARUS, J.
Denise Piccioli appeals, from the order, entered in the Court of Common Pleas of Northampton County, granting Appellee, Faust Heating and A/C Co., Inc.'s (Faust Heating) preliminary objections and dismissing Piccioli's fifth amended complaint with prejudice. After careful review, we affirm.
As a general rule, an order sustaining preliminary objections and dismissing a complaint is a final appealable order. See Lustig v. Lustig, 652 A.2d 393 (Pa. Super. 1995).
In February 2021, Piccioli contacted Faust Heating "to retain its services to inspect and make necessary repairs to her [inoperable] gas furnace." Fifth Amended Complaint, 5/11/22, at ¶ 9. Piccioli hired Faust Heating "due to its purported quality and employee standards" as described in the company's mission statement located on its website. Id. at ¶ 2. Piccioli avers that she and Faust Heating
Specifically, that company's mission statement reads:
Our team specializes in installation, repair, routine service, and replacement of residential heating and air conditioning systems. All technicians . . . are background checked and continually trained in order to optimize each customer's experience. . . . [O]ur family has earned a reputation for providing a high quality of service[.]Fifth Amended Complaint, 5/11/22, at ¶ 5. The mission statement also states that the company "provide[s] high quality, valuable, and affordable home comfort services[.]" Id. at ¶ 6. Finally, Piccioli quoted another company advertisement that stated:
[Our employees are] highly skilled and experienced technicians. On-going training to assure your complete satisfaction. Technicians are licensed, insured, and certified. Personalized service for all of your individual needs.Id. at ¶ 7.
entered into a verbal service agreement (contract) over the telephone wherein [Faust Heating] would provide [] necessary repairs of the quality described [in its advertisements] to [Piccioli's] home heating, specifically repairs to her gas furnace to restore the home heating, in exchange for monetary compensation, to be determined by [Faust Heating] upon completion of the work based upon the nature and extent of the repairs required.Id. at ¶ 11. On February 11, 2021, a Faust Heating representative came to the Piccioli residence to evaluate and repair the furnace and, while working in the attic of Piccioli's home, "stepped through the drywall ceiling into the second floor . . . caus[ing] significant damage to Piccioli's second floor ceiling." Complaint, 10/15/21, at ¶¶ 18, 21. Faust Heating hired a drywall contractor "to patch and repair the subject ceiling" in Piccioli's home. Id. at ¶ 23. According to Piccioli, the contractor "was ill-equipped and unable to reach the connected ceiling to the foyer and living rooms of Piccioli's property, resulting in an unsightly color difference between the rooms." Id. at ¶ 24. As a result of the failed attempt to repair the damage, Piccioli "had to seek out repairs for the poor quality of work and actions of [Faust Heating's] . . . employee." Id. at ¶ 25.
On October 15, 2021, Piccioli filed a complaint against Faust Heating, which included the following counts: Count I (breach of contract); Count II (Unfair Trade Practices and Consumer Protection Law (UTPCPL)); Count III (Intentional Misrepresentation); Count IV (Negligent Misrepresentation); Count V (Negligence); and Count VI (Negligent Supervision/Hiring/Retention). On December 2, 2021, Faust Heating filed preliminary objections to Piccioli's complaint, asserting that the complaint lacked specificity. See Pa.R.C.P. 1028(a)(3); Pa.R.C.P. 1028(a)(4). Piccioli filed an amended complaint on December 21, 2021. On January 10, 2022, Faust Heating filed preliminary objections to the amended complaint.
In her original complaint, Piccioli alleged that "the damages caused and attempted repairs by [Faust Heating] have not been remedied . . . [and that despite her] compli[ance] with all of the terms and requirements of her agreement with [Faust Heating] . . . [the company] has failed and refused to fully remedy the damages to [her] property [or] comply with its obligations under the parties' agreement for services." Id. at ¶ 15-17. Averring that she has suffered "substantial harm and monetary damages," id. at ¶ 20, Piccioli sought compensatory (economic and non-economic) and treble damages.
See 73 P.S. 201-1-202-9.2.
Over the course of the next five-and-one-half months, Piccioli filed four more amended complaints in response to Faust Heating's serial preliminary objections. On May 11, 2022, Piccioli filed a fifth amended complaint alleging that Faust Heating had "breached the parties' service agreement by failing to provide [] services in a competent fashion and in direct opposition to [Faust Heating's] assertions as to quality and competency[.]" Fifth Amended Complaint, 5/11/22, at ¶ 22. Two of the counts, Negligence and Negligent Supervision/Hiring/Retention, were pled "[i]n the alternative to Count I [(Breach of Contract)]." See id. at ¶¶ 13, 16. Faust Heating filed preliminary objections to the fifth amended complaint, contending that: the complaint does not plead a legally cognizable breach of contract claim; the UTPCPL violation should be dismissed as legally insufficient; and the claims for negligence and negligent supervision/hiring/retention should be stricken as legally insufficient and lacking adequate specificity. See Preliminary Objections to Fifth Amended Complaint, 4/21/22, at ¶¶ 12, 18, 21, 43, 53.
The counts in the fifth amended complaint are: I (Breach of Contract); II (UTCPCL); III (Negligence); and IV (Negligent Supervision/Hiring/Retention).
On September 6, 2022, the trial court granted Faust Heating's preliminary objections, dismissing, with prejudice, Counts I, II, III and IV of Piccioli's fifth amended complaint for insufficiency of a pleading in the nature of a demurrer. See Pa.R.C.P. 1028(a)(4). In dismissing Piccioli's fifth amended complaint, the trial court noted that Piccioli's "negligence and negligent supervision/hiring/retention claims were duplicative of her breach of contract claim, notwithstanding [her] failure to set forth the essential terms of the alleged contract in that breach of contract claim." Pa.R.A.P. 1925(a) Opinion, 11/29/22, at 2.
Piccioli filed a timely notice of appeal and court-ordered Rule 1925(b) concise statement of errors complained of on appeal. Piccioli raises the following issues for our consideration:
(1) Whether the [c]ourt erred as a matter of law and abused its discretion in granting [Faust Heating's] preliminary objections in the form of a motion to dismiss Counts I, II, III, and IV of [Piccioli's f]ifth [a]mended [c]omplaint, and[,] thereby[,] wrongfully dismissing [Piccioli's f]ifth [a]mended [c]omplaint with prejudice[.]
(2) Whether the [c]ourt erred as a matter of law and abused its discretion in wrongfully determining that [Piccioli] had not pled a legally cognizable breach of contract claim[.]
(3) Whether the [c]ourt erred as a matter of law and abused its discretion in wrongfully determining that [Piccioli's] negligence and negligent supervision/hiring/retention claims were barred by the gist of the action doctrine[.]Appellant's Brief, at 13.
Piccioli's second and third issues are encompassed by her first broad issue regarding the propriety of the court's grant of Faust Heating's preliminary objections and dismissal of her fifth amended complaint. Thus, we analyze the three issues by breaking them into the individual counts pled in Piccioli's fifth amended complaint.
Our review of a trial court's grant of preliminary objections in the nature of a demurrer is as follows:
[O]ur standard of review of an order of the trial court [] granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation omitted).
Pennsylvania Rule[] of Civil Procedure [] 1028(a)(4) allows for preliminary objections based on the legal insufficiency of a pleading. It is well established in Pennsylvania law that a preliminary objection in the nature of a demurrer can be sustained and a complaint dismissed when the complaint is clearly insufficient on its face to establish the pleader's right to relief.Cooper v. Franford Health Care System, Inc., 960 A.2d 134, 143 (Pa. Super. 2008).
When reviewing a trial court's order sustaining preliminary objections in the nature of a demurrer and dismissing a lawsuit, the appellate court's scope of review is plenary. DeMary v. Latrobe Printing and Pub. Co., 762 A.2d 758, 761 (Pa. Super. 2000). Moreover, "[f]or purposes of our review of the complaint, only well[-]pleaded material facts are admitted, and not conclusions of law." McKeeman and Chendorain v. Corestates Bank NA and Security Abstract of Pa., Inc., 751 A.3d 655, 658 (Pa. Super. 2000) (citation omitted). See Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899 (Pa. Super. 1994) ("In ruling on preliminary objections in the nature of a demurrer, the trial court may consider no testimony or evidence outside of the complaint.") (citation omitted).
Piccioli contends that the trial court erred in dismissing her fifth amended complaint, with prejudice, where she "sufficiently and succinctly pled . . . the factors necessary and required under the governing case law to sustain her claims." Appellant's Brief, at 17. We address each count of Piccioli's fifth amended complaint ad seriatim. See supra at n.6.
In her appellate brief, Piccioli argues:
[In her f]ifth [a]mended [c]omplaint [she] sets forth in detail the cause of action in concise and summary form, averring parties, time, place[,] and items of special damages, referencing agreements with [Faust Heating], which together with the paragraphs of [Piccioli's f]ifth [a]mended [c]omplaint cumulatively identified the type, nature, and substance of the subject agreement/contract. [Piccioli's f]ifth [a]mended [c]omplaint sets forth details from [Faust Heating's] website regarding its purported 'quality' services which were either authored and/or stated by [Faust Heating] and considered part of the terms of the agreement/contract with [Piccioli]. As such, the pleading is sufficiently clear to enable [Faust Heating] to prepare a response and informs [Faust Heating] with accuracy and completeness of the specific basis on which recovery is sought so that it may know without question upon what grounds to make its defense.Appellant's Brief, at 31 (citations to record omitted).
Piccioli claims that Faust Heating "breached the parties' service agreement by failing to provide the [] services in a competent fashion and in direct[] opposition to [Faust Heating's] assertions as to quality and competency." Appellant's Brief, at 21. Specifically, Piccioli alleges that where Faust Heating represented that its employees are "highly skilled [and] experienced" due to their "ongoing training to assure [a customer's] complete satisfaction," the Faust Heating employee "should have known of the proper way to walk through an attic without stepping through a ceiling." Id. See also Fifth Amended Complaint, 5/11/22, at ¶ 20. Piccioli claims that Faust Heating "had a duty to [her] to provide reasonable care and services as guided by its profession and its accepted standard of conduct, as well as by its own advertising and verbal guarantees to [her and that the company's] failures led to damages to [her] property, which were [] not remedied [and] caus[ed] actual losses and damages to [her]." Appellant's Brief, at 24, citing Fifth Amended Complaint, 5/11/22, at ¶¶ 35-36.
To support a claim for breach of contract, a plaintiff must allege three elements: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract, and (3) resulting damages. Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. 2003) (emphasis added) (citation omitted). "Essential terms" include, but are not limited to, the time or manner of performance of the contract and price or consideration. Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super 2006). Moreover, to determine whether a contract is enforceable, a trial court "must examine whether both parties have manifested an intent to be bound by the terms of the agreement, whether the terms are sufficiently definite, and whether consideration existed." Cardinale v. R.E. Gas. Dev. LLC, 74 A.3d 136, 140 (Pa. Super. 2013) (emphasis added).
In ruling on Faust Heating's preliminary objections, the trial court concluded that Piccioli had not pled a legally cognizable breach of contract claim where she "argues [Faust Heating] . . . failed to repair her furnace . . . with the right standard of quality and professionalism" and where "the obligation that [Faust Heating] owed to [Piccioli] in the service agreement is unclear." Trial Court Opinion, 9/6/22, at 5.
In its preliminary objections to Piccioli's fifth amended complaint, Faust Heating states that Piccioli's breach of contract claim should be dismissed where she does not define any of the essential terms of the parties' alleged oral agreement, she "does not identify the nature and extent of the repairs to be performed [on her furnace], the timing or amount of compensation to be paid, or any other promises made by [Faust Heating]," and where Piccioli's "allegations in support of her breach of contract claim [do not] address th[e] repair work [for her heating system], or any defects therewith." Preliminary Objections to Fifth Amended Complaint, 4/21/22, at ¶¶ 14-17.
In her fifth amended complaint, Piccioli asserted that Faust Heating breached the parties' February 11, 2021 verbal-over-the-phone service agreement "wherein [Faust Heating agreed that it] would provide quality repairs . . . in exchange for monetary compensation." Fifth Amended Complaint, 5/11/22, at ¶ 47. See id. at ¶¶ 5-7 (Piccioli specifically citing Faust Heating's company website to set forth standard company advertises with regard to quality of service, level of employee training, and skill and experience of technicians). See also supra at n.2. Additionally, Piccioli states that Faust Heating "wholly neglected to do and perform certain things, which were expressly or by necessary implication required to be done and performed under the parties' contract[.]" Fifth Amended Complaint, 5/11/22, at ¶ 54 (emphasis added). Specifically, Piccioli claims Faust Heating did not:
• "fully monetarily compensate [her] for damages incurred as a result of [its] actions;
• "honor and comply with the terms of the parties' agreement, wherein [she] hired [the company] based on its representations that it would provide services with professionalism, competency[,] and quality; and
• "take and assume proper action after causing damages to [her] property"Id. at ¶ 54 (a.-c.) (emphasis added).
In Pennsylvania Supply, Inc. v. American Ash Recycling Corp. of Pennsylvania, 895 A.2d 595 (Pa. Super. 2006), our Court stated, "[w]hile not every term of a contract must be stated in complete detail, every element must be specifically pleaded." Id. at 600 (emphasis added) (citation omitted). Moreover, "[c]larity is particularly important where an oral contract is alleged." Snaith v Snaith, 422 A.2d 1379, 1382 (Pa. Super. 1980).
First, we note that nowhere in her fifth amended complaint does Piccioli state what the compensation terms are under the parties' agreement and how much, if anything, she compensated Faust Heating for any rendered services. In addition, Piccioli does not aver exactly what terms she and Faust Heating agreed upon with regard to servicing the furnace, and whether her furnace was, indeed, repaired. Moreover, Piccioli does not state exactly what her "damages" consist of. At most, we are told that there is "an unsightly color difference between the [foyer and living] rooms" in Piccioli's home. Fifth Amended Complaint, 5/11/22, at ¶ 24. See Delahanty v. First Pennsylvania Bank, N.A., 464 A.2d 1243, 1256 (Pa. Super. 1983) (plaintiff need not allege damages with "mathematical precision," but must plead facts so trier of fact can determine appropriate estimation of damages without speculation). Finally, Piccioli does not plead the time or manner in which the alleged services were to be provided, save for the generalized statement that compensation was "to be determined by [Faust Heating] upon completion of the work based upon the nature and extent of the repairs required." Fifth Amended Complaint, 5/11/22, at ¶ 11.
Although Piccioli claims that Faust Heating breached its contract, she fails to state how the breach caused damages related to the parties' service agreement on her furnace. In fact, if Faust Heating did fix Piccioli's furnace, we concur with Faust Heating that any alleged "damage does not appear to have any connection to any work related to [Piccioli's] gas furnace, but rather stems from an incidental event wherein [Faust Heating's] employee is alleged to have stepped through [her] ceiling." Appellee's Brief, at 17.
In evaluating whether preliminary objections should be sustained under Rule 1028(a)(4), it must be clear that under "the law [] a [p]laintiff is not entitled to recovery based on the facts alleged in the complaint." Bargo v. Kuhns, 98 A.3d 686, 689 (Pa. Super 2014) (quotation omitted). Based upon the facts pled in her fifth amended complaint, we agree with the trial court's determination that Piccioli's breach of contract count lacked legal specificity. See Lackner, supra at 31 (where" ̀agreement' [was] too indefinite for a party to reasonably believe that it could be enforceable in an action at law") (emphasis in original). Considering all well-pled facts and reasonable inferences to be drawn therefrom, the circumstances surrounding Piccioli's breach of contract claim are so illusory that no legal recovery is possible. Thus, the court correctly dismissed Count I of Piccioli's fifth amended complaint.
Count II - UTCPCL
In her UTCPCL claim, Piccioli claims that Faust Heating "fraudulently held itself out" as a provider of "high quality service" and employed deceptive advertising in order to secure its agreement with Piccioli. Piccioli asserts that Faust Heating misrepresented that its employees were "highly skilled" and had completed "on-going training to assure [Piccioli's] complete satisfaction." Appellant's Brief, at 22-23.
In particular, Piccioli cites to the following sections of the UTPCPL in her fifth amended complaint:
(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;
(vi) Representing that goods or services are of a particular standard, quality or grade . . . if they are of another; and
(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.73 P.S. § 201-2(4)(v), (vi), & (xxi) (emphasis added).
"Aimed at preventing consumer fraud, the UTPCPL enables an individual to institute a private action to recover damages for any ascertainable loss caused by unfair or deceptive acts or business practices." Lesoon v. Metro. Life Ins. Co., 898 A.2d 620, 628 (Pa. Super. 2006). "The Pennsylvania Supreme Court has stated [that] courts should liberally construe the UTPCPL in order to effect the legislative goal of consumer protection." Knight v. Springfield Hyundai, 81 A.3d 940, 949 (Pa. Super. 2013) (citation omitted).
Under the UTPCPL, "it is unlawful to engage in . . . 'unfair or deceptive acts or practices' in the conduct of any trade or commerce[." Id., citing 73 P.S. § 201-3(a). To prevail in a private cause of action under the UTPCPL, an individual must establish that:
The UTPCPL defines "trade" and "commerce" as "the advertising . . . of any services . . . and includes any trade or commerce directly or indirectly affecting the people of this Commonwealth." 73 P.S. § 201-2(3).
(1) they purchased or leased goods or services primarily for a personal, family, or household purpose; (2) they suffered an ascertainable loss of money or property; (3) the loss occurred as a result of the use or employment by a vendor of a method, act, or practice declared unlawful by the [UTPCPL]; and (4) the consumer justifiably relied upon the unfair or deceptive business practice when making the purchasing decision.Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 646 (Pa. 2021) (quotation marks omitted); see also 73 P.S. § 201-9.2(a). In addition to other elements, an individual seeking relief under the UTPCPL must establish the elements of justifiable reliance and causation. Kirwin v. Sussman Auto., 149 A.3d 333, 336 (Pa. Super. 2016).
Instantly, Piccioli claimed that Faust Heating's "misleading statements and representations" consisted of the following phrases listed on the heating company's website:
• its employees are "extensively trained" and "100% dedicated to customer satisfaction;"
• its employees are "service professionals;"
• it upholds the "family tradition of excellence;"
• its employees are "trustworthy" and "dependable;"
• the customer's experience would be "one of comfort and trust, not anxiety and worry;" and
• it provides "services of a high quality and competency"
Fifth Amended Complaint, 5/11/22, at ¶¶ 61 (a.-g.).
"Representing that goods or services are of a particular standard, quality or grade . . . if they are of another" is an unlawful activity under the UTPCPL. 73 P.S. § 201-2(4)(vii). However, "[w]here the impression created by [a] statement is one of exaggeration or overstatement expressed in broad language, it may be deemed non-actionable puffery [under the UTPCPL]." Commonwealth v. Golden Gate Nat'l Senior Care, LLC, 194 A.3d 1010, 1023 (Pa. 2018). When considering whether statements are actionable under the UTPCPL:
The UTPCPL also considers "[m]aking repairs, improvements or replacements on tangible, real[,] or personal property, of a nature or quality inferior to or below the standard of that agreed to in writing" as a deceptive act or practice. 73 P.S. § 201-2(4)(xvi). However, here Piccioli has alleged that the parties' agreement was oral, not written.
[statements of a] patently hyperbolic or excessively vague character that dissuades any reasonable consumer from placing reliance thereon as fact render [such] puffery non-actionable under the UTPCPL. In contrast, where a plaintiff establishes that a statement contains believable, inaccurate statements of fact, the statement falls beyond the reach of a puffery defense.Id. at 1024 (citation omitted).
Here, the trial court concluded that Piccioli did not make a legally sufficient claim under the UTPCPL where she "has not demonstrated [that] she suffered an 'ascertainable loss' that occurred as a result of [Faust Heating's] 'deceptive' statements.'" Trial Court Opinion, 9/6/22, at 6. Moreover, the court found that "one accident [by an employee] does not demonstrate [that Faust Heating] lied about its services or its employees . . . [as even] highly trained and experienced service professionals can and do make mistakes." Id.
Instantly, Piccioli's complaint fails to plead any alleged facts to illustrate that Faust Heating employees are not highly skilled or that the company does not provide high quality service, other than a factual statement that a Faust Heating employee accidentally caused damage in her attic while he was there to fix her furnace. At most, the claims made on Faust Heating's website were generalized statements that amounted to mere "puffery"-simply claims regarding the superiority of its services. The statements were neither "deceptive" nor made with an "intent to induce" Piccioli to use its services.Accordingly, we agree that the court properly dismissed Piccioli's UTPCPL count.
In fact, it is common practice for similarly-situated consumers to not take such statements at face value, but seek referrals or ask questions regarding a company's prior jobs before employing its services.
Counts III & IV - Negligence & Negligent Supervision/Hiring/Retention
Finally, Piccioli contends the trial court improperly dismissed her negligence-based claims where there is a "strong public policy in favor of a service provider owing a duty to its customer[,] . . . the risk of allowing employees to cause damage to [a] customer's property, without holding the service provider responsible . . . cannot be overstated[,] . . . and the consequences of imposing a duty upon [Faust Heating] are minimal." Appellant's Brief, at 35 (emphasis in original).
The trial court concluded that Piccioli's negligence claims are barred by the "gist of the action" doctrine where Piccioli alleges nothing more than her negligence claims "are in fact based upon [an alleged] contract." See Trial Court Opinion, 9/6/22, at 8 (pointing out Piccioli's claim that Faust Heating "did not provide the type of 'quality' repair it had advertised [under the parties'] service agreement."). We agree.
Faust Heating correctly notes that Piccioli's negligence claims "were nothing more than a regurgitation of her breach of contract claims under a new theory." Appellee's Brief, at 10. Piccioli attempts to convert her contract claim into one sounding in tort by listing the negligence counts in her complaint as "alternative" counts to her breach of contract claim. Here, Piccioli's negligence claims were not based on Faust Heating's alleged breach "of a general social duty," but rather an allegation that Faust Heating had directly breached its service agreement with her where Faust's employee did not perform with the level of "professionalism and quality" that she had expected. See Bruno v. Erie Ins. Co., 106 A.3d 48, 66 (Pa. 2014) (contract claim cannot be converted to one in tort simply by alleging conduct in question was wantonly done). Here, the facts pled in Piccioli's complaint allege that the duty Faust Heating breached was a private contractual one. See Bash v. Bell Tel., 601 A.2d 825, 829 (Pa. Super. 1992) ("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[.]") (citation omitted) (emphasis added). Thus, the trial court correctly dismissed Piccioli's negligence-based claims (Count III and Count IV of fifth amended complaint) based on the "gist of the action" doctrine.
Accordingly, we conclude that the trial court did not commit an error of law or abuse its discretion in granting Faust Heating's preliminary objections and dismissing Piccioli's fifth amended complaint with prejudice. Feingold, supra.
Order affirmed.
Panella, President Judge joins this memorandum.
Stabile, J., files a Concurring/Dissenting Memorandum.
Judgment Entered.
CONCURRING/DISSENTING MEMORANDUM
STABILE, J.
The Majority would affirm the trial court's grant of Faust Heating's preliminary objections to Piccioli's fifth amended complaint and dismiss the complaint in its entirety with prejudice. Although I agree with the Majority's determination with respect to Piccioli's breach of contract and UTCPCL claims, I am constrained to dissent with regard to Piccioli's negligence claims.
The trial court found, and the Majority agrees, that Piccioli's contract count lacked legal specificality such that no recovery for breach of contract was possible. Majority Memorandum at 11-12. I agree. However, somewhat curiously, despite concluding there was no enforceable contract, the Majority determined that Piccioli's negligence claims were barred by the "gist of the action" doctrine, because Piccioli's negligence claims were "in fact based upon [an alleged] contract." Id. at 16 (quoting Trial Court Opinion, 9/6/22, at 8).
While Piccioli's fifth amended complaint is perhaps unartfully drafted, she does allege, inter alia, that Faust Heating's employee should have known the proper way to walk through an attic without stepping through a ceiling (Complaint at ¶¶ 19-20); that the actions of the employee caused significant damage (id. at ¶ 21); that Faust Heating owed a duty of care to Piccioli in training its employees and in its actions and/or inactions, including failure to inspect the area to prevent harm, failure to exercise reasonable care in hiring and training employees, and failure to supervise the activities of its employees (id. at ¶¶ 79-80(a), (c), and (g)). Further, she alleged:
81. As a direct and proximate result of the negligent actions of [Faust Heating] as described above, [Faust Heating] sent an [employee] to [Piccioli's] properly to perform work who was negligent, inexperienced, improperly trained, unprofessional, careless, reckless, and/or otherwise ill-prepared to perform the work in a competent manner, resulting in the [employee] stepping through the attic floor and causing damage to [Piccioli's] property[.]
82. As a direct and proximate result of the negligent actions of [Faust Heating], [Piccioli] has sustained property damages as fully forth herein.Id. at ¶¶ 81-82.
As our Supreme Court has explained:
The question presented in a demurrer is whether, on the facts averred, "the law says with certainty that no recovery is possible." MacElree v. Philadelphia Newspapers, Inc., 544 Pa. 117, 674 A.2d 1050, 1054 (1996). If doubt exists concerning whether the demurrer should be sustained, then "this doubt
should be resolved in favor of overruling it." Bilt-Rite [Contractors, Inc. v. The Architectural Studio, 866 A.2d 279, 274 (Pa. 2005)]. Our Court's standard of review of a lower court's decision granting a demurrer is de novo. Bayada Nurses, Inc. v. Com., Dep't of Labor and Indus., 607 Pa. 527, 8 A.3d 866, 871 n. 4 (2010).Bruno v. Erie Ins. Co., 106 A.3d 48, 56 (Pa. 2014).
In Bruno, our Supreme Court examined the gist of the action doctrine and noted:
[O]ur prior decisions in Zell [v. Arnold, 2 Pen. & W. 292, 1830 WL 3261 (Pa. 1830)] and Krum [v. Anthony, 115 Pa. 431, 8 A. 598, 600 (1887)] underscore that the mere existence of a contract between two parties does not, ipso facto, classify a claim by a contracting party for injury or loss suffered as the result of actions of the other party in performing the contract as one for breach of contract. Indeed, our Court has long recognized that a party to a contract may be found liable in tort for negligently performing contractual obligations and thereby causing injury or other harm to another contracting party, see, e.g., Bloomsburg Mills v. Sordoni, 401 Pa. 358, 164 A.2d 201 (1960) (finding evidence sufficient for jury to have concluded architect was negligent in failing to exercise reasonable care in performance of duties imposed by design contract), or to a third person, see, e.g., Evans [v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 575 (1961)] (elevator repair company liable for injuries to user of the elevator caused by its negligent performance of service contract with building owner); Farabaugh v. Pa. Turnpike Comm'n, 590 Pa. 46, 911 A.2d 1264 (2006) (recognizing claim for negligence against construction company for injuries to a third person caused by company's allegedly deficient performance of its contractual duty of inspection).
Consequently, a negligence claim based on the actions of a contracting party in performing contractual obligations is not viewed as an action on the underlying contract itself, since it is not founded on the breach of any of the specific executory promises which comprise the contract. Instead, the contract is regarded merely as the vehicle, or mechanism, which established the relationship between the parties, during which the tort of negligence was committed. See Zell, 1830 WL 3261, at
*3 (considering action to be in tort since it was for breach of the defendant's duty to perform, in a "workmanly manner," construction activities specified by the construction contract); Evans, 168 A.2d at 575 ("It is not the contract per se which creates the duty [to avoid causing injury to third parties]; it is the law which imposes the duty because of the nature of the undertaking in the contract."); Reitmeyer [v. Sprecher, 431 Pa. 284, 243 A.2d 395 (1968)] (negligence action was based on landlord's alleged breach of his independent duty of care imposed by law, which arose because of the parties' establishment of a contractual relationship through the formation of the lease agreement, not for a breach of a duty created by the agreement itself).Id. at 69-70.
Here, Piccioli asserted a claim with respect to the Faust Heating employee's negligence in failing to exercise reasonable care in the performance of his duties, resulting in him stepping through a ceiling and causing damage. As our Supreme Court stated in Bruno:
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 imposed by the law of torts and, hence, exists regardless of the contract, then it must be regarded as a tort.Id. at 68.
Because, in accordance with Bruno, I believe that Piccioli's negligence claims are not barred by the gist of the action doctrine, and because I do not believe that, "on the facts averred, 'the law says with certainty that no recovery is possible,'" Bruno, 106 A.3d at 56 (quoting MacElree, 674 A.2d at 1054), I would reverse the trial court's order sustaining Faust Heating's preliminary objections with respect to Piccioli's negligence claims (Counts III and IV), and would remand with instruction to Faust Heating to file a responsive pleading. In all other respects I join in the Majority's affirmance of the trial court's order sustaining Faust Heating's preliminary objections.