Andrew Zimmerman and Jordan Zimmerman, Husband & Wife, v. George Strohm, Jr., Inc., d/b/a George Home Services, and Hlavaty Plumb-Heat-Cool, Inc.

Andrew Zimmerman and Jordan Zimmerman, Husband & Wife, v. George Strohm, Jr., Inc., d/b/a George Home Services, and Hlavaty Plumb-Heat-Cool, Inc.

Civil Action-Law-Breach of Contract-Negligence-Home Improvement Consumer Protection Act-Unfair Trade Practices Consumer Protection Law-Installation of Swimming Pool-Preliminary Objections-Legal Sufficiency-Gist of the Action Doctrine

Andrew and Jordan Zimmerman (“Plaintiffs”) filed a Complaint in Breach of Contract, Negligence, Breach of Warranty and Violations of the Home Improvement Consumer Protection Act and Unfair Trade Practices Consumer Protection Law seeking damages relating to an alleged improperly installed swimming pool by George Home Services (“Defendants”).  Defendants filed Preliminary Objections to the Complaint asserting legal insufficiency of the claims and inability to maintain the Negligence claim based upon the gist of the action doctrine.

1.  A demurrer may be sustained only in cases where the plaintiff clearly has failed to state a claim upon which relief may be granted.

2.  When the court has little difficulty discerning what the plaintiff is claiming without undertaking legal research or studying the parties’ briefs, the court tends to characterize the complaint as sufficient. 

3.  The gist of the action doctrine bars a tort claim when it arises only out of a contractual obligation between parties, the duties are grounded in the contract itself, the liability stems from the contract or the tort claim essentially duplicates the breach of contract claim.

4.  Dismissing a claim at the preliminary objection stage based upon the gist of the action doctrine is premature and typically should be deferred until the summary judgment stage of the proceedings, as discovery will refine many allegations stated by the plaintiff against the defendant.

5.  Where the Complaint states that the pool was not level or plumb, one (1) of the walls bowed inward and metal pushed through the liner of the pool, the Complaint as drafted is sufficient to enable the Court fully to understand what is being alleged and why such that the Complaint sets forth legally sufficient causes of action.

L.C.C.C.P. No. 2023-01100, Opinion by Bradford H. Charles, Judge, February 14, 2024.    

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY, PENNSYLVANIA

CIVIL ACTION – LAW

ANDREW ZIMMERMAN and                                          :

JORDAN ZIMMERMAN, Husband & Wife        :

            Plaintiffs                                                                    : No. 2023-01100

                                                                                                :

                                                                                                :

                          v.                                                                   : 

:  

GEORGE STROHM, JR. INC. d/b/a                     :

GEORGE HOME SERVICES, and                                   :

HLAVATY PLUMB-HEAT-COOL, INC.            :                                                                       Defendants                                                            :

                                                                                                : 

ORDER OF COURT

AND NOW, this 14^th day of February, 2024, upon consideration of the Preliminary Objections filed by Defendants and in accordance with the attached Opinion, the Order of this Court is as follows:

1. The Preliminary Objection filed by George Strohm, Jr. Inc, d/b/a George Home Services, and Hlavaty Plumb-Heat-Cool, Inc. (hereafter DEFENDANTS) based upon the gist of the action doctrine is DENIED without prejudice to the ability of DEFENDANTS to resubmit a gist of the action argument following the conclusion of discovery.
2. We find that Plaintiffs’ claims of breach of contract, violation of the Home Improvement Consumer Protection Act, violation of the Unfair Trade Practices and Consumer Protection Law, negligence breach of warranty by DEFENDANTS are legally sufficient, and we overrule DEFENDANTS’ objections.
3. The request by DEFENDANTS for this Court to strike Paragraphs 28-31, 33, 34, 39, 45, 47, and 54 of the Civil Complaint is DENIED.

BY THE COURT:

                                                                                    __________________________J.

                                                                                    BRADFORD H. CHARLES

BHC/tjb

cc:        Brett Weist, Esq.// 525 South Eighth Street, Lebanon PA 17042

Richard B. Druby, Esq.// 1135 East Chocolate Avenue, Suite 300, Hershey PA 17033

            Court Administration

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION-LAW

ANDREW ZIMMERMAN and                                          :

JORDAN ZIMMERMAN, Husband & Wife        :

                                                                                                : No. 2023-01100

            Plaintiffs                                                                     :

                                                                                                :

                          v.                                                                   : 

:  

GEORGE STROHM, JR. INC. d/b/a                     :

GEORGE HOME SERVICES, and                                   :

HLAVATY PLUMB-HEAT-COOL, INC.            :                                                                       Defendants                                                            :

                                                                                                : 

APPEARANCES

Brett Weist, Esq.       For Plaintiff 

Richard Druby, Esq.                                    For Defendants 

OPINION BY CHARLES, J.,  February 14, 2024

            Andrew Zimmerman and Jordan Zimmerman (hereafter “ZIMMERMANS”) have initiated a Civil Complaint seeking damages stemming from the alleged improper installation of a swimming pool installed by DEFENDANTS.  ZIMMERMANS asserted a cause of action for breach of contract, violation of the Home Improvement Consumer Protection Act (hereafter “HICPA”), violation of the Unfair Trade Practices and Consumer Protection Law (hereafter “UTPCPL”), negligence, and breach of warranty.  We issue this Opinion in order to reject the Preliminary Objections of ZIMMERMANS and send the above-referenced matter forward to the discovery phase of litigation. 

I.     FACTS

            According to the Complaint, on or about April 5, 2021, ZIMMERMANS received a quote from George Home Services (hereafter “GHS”) to have a swimming pool installed for an estimated twenty-two thousand dollars ($22,000.00).  Defendant Hlavaty Plumb-Heat-Cool, Inc. is a division of GHS.  On April 8, 2021, GHS provided ZIMMERMANS with a Work Order for an estimated twenty-four thousand and two hundred dollars ($24,200.00) to install the pool.  DEFENDANTS began installing the pool in June 2022.

            On August 2, 2022, Andrew Zimmerman signed an invoice that included the Work Order for a total of twenty-two thousand and five hundred dollars ($22,500.00).  On the same date an employee of GHS signed a Work Order for ($24,200.00).  On September 1, 2022, ZIMMERMANS gave GHS a check in the amount of six thousand and five hundred dollars ($6,500.00).

On August 28, 2023, ZIMMERMANS filed a Civil Complaint.  ZIMMERMANS alleged that they experienced problems with the installation, including but not limited to, a failing liner, metal pushing through the liner, walls bowing inward or outward, the pool being out of level and out of plumb, the footer not being properly installed, and too small of pump for the size of the pool.

On October 16, 2023, DEFENDANTS filed Preliminary Objections raising the following issues:

1.  Whether PLAINTIFF’s breach of contract claim is legally insufficient because they fail to state a factual basis for the claim? 
2. Whether Paragraphs 28-31, 33, 34, 39, 45, 47, and 54 must be stricken?          
3. Whether the negligence claim is legally insufficient because it is barred by the Gist of the Action doctrine?

On October 23, 2023, the matter was listed for Argument Court.  The parties agreed to a decision on the briefs.  Those briefs have now been received.  The issues raised by DEFENDANTS’ Preliminary Objections are now before this Court for disposition.

II.     DISCUSSION AND LEGAL PRINCIPLES

            We will begin our discussion by setting forth the relevant legal principles at issue in this matter.  We will then do an analysis of the facts of this case as they pertain to the legal principles posited.

A.     STANDARD OF REVIEW FOR PRELIMINARY OBJECTIONS

When reviewing the preliminary objections, the Court, “must accept as true all well pleaded material allegations and any reasonable inferences from therefrom” Bayada Nurses, Inc. v. Dep’t. of Labor and Industry, 8 A.3d 866, 884 (Pa. 2010).  The question is whether, on the facts presented, the law says with certainty that no recovery is possible.  Werner v. Plater-Zyberk, 799 A.2d 766, 783 (Pa. Super. 2002).  A demurrer admits that well-pleaded facts and reasonable inferences in the claim are true, but not the conclusions of the law.  Gekas v. Shapp, 364 A.2d 691, 693 (Pa. 1976). 

DEFENDANTS filed their Preliminary Objections pursuant to Pa.R.C.P. 1028(a)(4) (“legal insufficient specificity of a pleading.”). A demurrer can be sustained only where the complaint is “clearly insufficient” to establish a pleader’s right of relief.  Lumax Industries, Inc. v. Aultman, 669 A.2d 893 (Pa. 1995).  Stated differently, a demurrer should be sustained only in cases where the Plaintiff has clearly failed to state a claim on which relief can be granted.  Pittsburgh National Bank v. Perr, 637 A.2d 334 (Pa. Super. 1994).  Any doubt that exists should be resolved in favor of overruling the demurrer.  Hunter v. Port Authority of Allegheny County, 419 A.2d 631, 637 (Pa. Super. 1980).

When this Court is faced with a question involving the sufficiency/specificity of a civil complaint, we undertake an analytical paradigm that we have called the “tabula rasa approach.”  Without undertaking legal research or studying the parties’ briefs, i.e., with a “blank slate”, we read the Complaint with an eye toward determining whether we are able to completely understand what the plaintiff is claiming.  When we have little difficulty discerning what the plaintiff wants and why, we tend to characterize the Complaint as sufficient.

B.     GIST OF THE ACTION DOCTRINE

The “gist of the action” doctrine bars a tort claim when it arises only out of a contractual obligation between parties, where the duties are grounded in the contract itself, where the liability stems from the contract, or where the tort claim “essentially duplicates a breach of contract claim”. eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10, 19 (Pa. Super 2002).   The Pennsylvania Supreme Court addressed the doctrine in Bruno v. Erie Insurance Co., 106 A.3d 49 (Pa. 2014).  The Court declared that the mere existence of a contract between parties does not automatically transform a claim for injury or loss into a breach of contract.  In some cases, a contract is viewed, “merely as a vehicle, or mechanism” to establish the relationship between the parties. Id at page 114.

            This Court has consistently refused to dismiss a claim at the Preliminary Objection stage based upon the gist of action doctrine; we have always deemed such action to be premature.  Goodling v. AgChoice Farm Credit, FLCA, C.P. Leb. Co. No. 2009-0311 (2009) and Bantum v. Moll and White Deer Run, Inc., C.P.Leb.Co. No. 2018-01936 (2019).  This Court has historically agreed with the analysis in Lebish v. Whitehall Manor, Inc., 57 Pa. D&C 4^th 247 (2002), that “Discovery will refine many allegations stated by the plaintiff against the defendant.” Id at pages 250-251.  Therefore, Gist of the Action decisions will typically be deferred until the Summary Judgment stage of proceedings.

III.     ANALYSIS

            DEFENDANTS assert that ZIMMERMANS have stated allegations of breach of contract without detailing the factual conduct constituting improper or incorrect installation of the pool.  Furthermore, GHS argues that ZIMMERMANS have presented boilerplate arguments that are impermissible and contrary to law.  GHS complains that the allegations of the ZIMMERMANS are too broad; if said allegations are allowed to remain, GHS believes it would be severely prejudiced because ZIMMERMANS may use them to introduce new theories of liability once the statute of limitations has run. 

ZIMMERMANS assert that the allegations are not so broad that GHS cannot formulate a proper response and defense.   ZIMMERMANS note that they complained that the pool is not level or plumb, one of the walls is bowing inward, and there is metal pushing through the liner of the pool, all of which are facts that show that GHS failed to properly install the pool. ZIMMERMANS aver that their theories of liability are set forth clearly, and it is very likely that this case will be resolved before the four (4) year statute of limitations runs.

            We agree that ZIMMERMANS have set forth sufficient detail in their Complaint to make it clear that they are arguing that there is visible evidence that the pool was improperly installed, and therefore DEFENDANTS have breached the contract for the pool installation.  This case commenced well before the statutes of limitations will run and the time for amending the Complaint to add new theories will continue during the discovery phase of litigation.  We see no reason to speculate about what either party will do if new information is discovered.

            DEFENDANTS’ objection to Paragraphs 28, 29, 30, 31, 33, and 34 is that they are impertinent and otherwise impermissible under the rules of pleadings. DEFENDANTS assert that Paragraph 39 failed to state how it deviated from, or disregarded plans and speculations, in violation of HICPA.   DEFENDANTS argue that Paragraph 45 should be stricken because ZIMMERMANS failed to state facts about how the pool was improperly installed, how it was not in compliance with industry standards, or how the project violated a warranty.  Additionally, DEFENDANTS complain that in Paragraph 47, ZIMMERMANS failed to plead any facts that would show that the pool footer was improperly installed.  DEFENDANTS assert Paragraph 54 alleged a breach of the warranty by failing to properly install the pool, but the paragraph failed to present a factual basis for how the pool was improperly installed.

            ZIMMERMANS state that if the pool had been properly installed it would be level and the walls would be straight, and metal would not be pushing through the liner.  They assert that DEFENDANTS were already aware of the issue with the pool footing because the pool was unlevel, and they came back to the premises to fix the issue with premixed concrete, but this remedy was unsuccessful.  ZIMMERMANS aver that the above-mentioned facts do sufficiently explain how DEFENDANTS failed to install the pool correctly, thereby breaching the warranty. Furthermore, ZIMMERMANS point out that DEFENDANTS insisted that ten (10) of the paragraphs of the Complaint should be stricken, but they only made arguments pertaining to four (4) of the paragraphs. 

            We cannot agree with DEFENDANTS’ assertion that the paragraphs it wants stricken are either impertinent or impermissible under the rules of pleadings. In viewing the Complaint, ¶ 39 stated a specific allegation of how DEFENDANTS violated HICPA, and ¶ 45 incorporated by reference that same allegation to demonstrate a violation of UTPCPL. 

This case is about a swimming pool that was allegedly installed in an improper manner, and ZIMMERMANS presented facts pertinent to those allegations. After our “tabula rasa” evaluation of the Complaint, we find that the Complaint as drafted was sufficient to enable this Court – and DEFENDANTS – to fully understand what was being alleged and why.  Accordingly, we will deny DEFENDANTS’ motion to have the above stated ten (10) paragraphs stricken from the Complaint.

            DEFENDANTS assert that the negligence claim is based on the allegation that the pool was improperly installed, and the pool installation was the subject of the agreement between the parties, therefore the negligence claim is barred by the Gist of the Action Doctrine.   ZIMMERMANS assert that the Gist of the Action Doctrine does not apply in this case, because the alleged negligence was not just the improper installation of the pool, but also for the damage caused by DEFENDANTS to their lawn, deck, patio, and sidewalk.  As set forth on page 5-6, infra, Gist of the Action Doctrine arguments will not be entertained at this stage of the proceedings.  We will defer a decision regarding Gist of the Action until the Summary Judgment stage.

Our goal today is to move the parties forward into the discovery phase of litigation so that they can develop factual foundations upon which their arguments can be based. After the discovery phase, this Court will be in a better position to assess whether DEFENDANTS’ duties arose exclusively from a contract or whether it was applicable independent of the contract.  Accordingly, this Court will not dismiss ZIMMERMANS’ tort claim via preliminary objections.  We will, however, leave the door open for the challenge to be filed again as a Motion for Summary Judgment after the discovery phase.  

IV.    CONCLUSION

            As is obvious from the nature of our decision, we believe that the above-referenced matter should proceed to the discovery phase of litigation.    Moreover, we view the substantive arguments submitted by DEFENDANTS to be premature.  We will need factual evidence in order to assess whether this case can proceed to trial upon a tort-based theory of liability. 

We make no prediction today about how we will rule if or when issues are presented to us via a Motion for Summary Judgment.  All we say today is that we will not grant DEFENDANTS’ arguments at the Preliminary Objection stage of proceedings.

            An Order to accomplish our decision will be entered today’s date.