Yingst v. Grimes, Miller and Re/Max Cornerstone No. 2015-02142

Civil Action-Law-Real Estate-Property Defects-Mold-Failure to Remediate-Failure to Disclose-Preliminary Objections-Unliquidated Damages-Unfair Trade Practices and Consumer Protection Law
Plaintiffs, who purchased property owned by Defendants Richard and Anna Mae Grimes through a buyer agency contract with Defendant Brenda Miller (“Miller”) and her employer Defendant Re/Max Cornerstone (“Re/Max”) acting as realtor for both parties, filed causes of action sounding in Breach of Contract, Negligence and Fraud based upon alleged damages sustained as a result of an issue with mold in the property that was not remediated properly.  Defendants Miller and Re/Max lodged Preliminary Objections to the Amended Complaint, asserting that the Amended Complaint impermissibly seeks unliquidated damages and fails to set forth a separate and distinct cause of action pursuant to the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201-1 et seq.
1.  In deciding preliminary objections, the Court must accept as true all material facts set forth in the complaint and all inferences reasonably deducible therefrom.  A preliminary objection should be sustained only where it appears with certainty that the law will not allow the plaintiff to recover on the facts averred.
2.  Pa.R.C.P. Rule 1021(b) prohibits any pleading that demands relief for unliquidated damages.
3.  Unliquidated damages are damages that cannot be determined by a fixed formula and must be established by the judge or a jury.
4.  The Amended Complaint seeking damages of at least $100,300.59 fails to set forth a fixed amount of compensatory damages sought in violation of Rule 1021(b).
5.  The intent of the UTPCPL  is to protect the public from fraudulent and unfair or deceptive business practices.  The UTPCPL should be construed liberally to affect its object of preventing unfair or deceptive practices.
6.  The remedies available under the UTPCPL are not exclusive.  Rather, they are in addition to other causes of action and remedies.  Therefore, the UTPCPL creates a civil action that is separate and distinct.
7.  Allegations of a violation of the UTPCPL interspersed within claims for Failure to Disclose Material Defects, Negligent Misrepresentation and Fraudulent Misrepresentation in the Amended Complaint must be set forth as a separate and distinct cause of action, not as part of other causes of action seeking relief.
L.C.C.C.P. No. 2015-02142, Opinion by Samuel A. Kline, Judge, April 25, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CIVIL DIVISION No. 2015-02142

P. HENRY AND CLARE YINGST, Plaintiffs
v.
RICHARD AND ANNA MAE GRIMES, BRENDA MILLER, and RE/MAX CORNERSTONE, Defendants

ORDER
AND NOW, to wit, this 25th day of April, 2017, upon consideration of Defendants’ Preliminary Objections, Plaintiffs’ response thereto, and upon oral arguments, this Court finds that Defendants’ Preliminary Objections are SUSTAINED.
Plaintiff may file an Amended Complaint within 30 days after entry of this Order.

BY THE COURT:

SAMUEL A. KLINE, J.
OPINION, KLINE, J., APRIL 25, 2017
INTRODUCTION
Before the Court are the Preliminary Objections to Plaintiffs’ Amended Complaint filed by Defendants Brenda Miller and Re/Max Cornerstone.  The Court heard oral arguments of counsel and has reviewed the parties’ written objections, responses thereto and briefs rendering this matter appropriate for disposition.  For the reasons set forth herein, we sustain the preliminary objections, as specified below.
FACTS AND PROCEDURAL HISTORY
This matter arises out of the sale of real property located in Lebanon, Pennsylvania.  Plaintiffs P. Henry and Clare Yingst (hereinafter “the Buyers”) purchased the property from Defendants Richard and Anna Mae Grimes (hereinafter “the Sellers”) through Buyer Agency Contract with Defendant Brenda Miller and her then employer, Re/Max Cornerstone (hereinafter “Remax”), acting as realtor for both Sellers and Buyers.  The property purchase settled and Buyers took possession on November 19, 2013.  Plaintiffs have alleged that they have suffered damages due to a mold issue that was not properly remediated by the Sellers and the failure to properly remediate was not disclosed by Defendants Miller or Remax.
Plaintiffs commenced this matter through Writ of Summons against all Defendants on December 3, 2016.  On December 7, 2016, Plaintiffs filed their Complaint containing the following counts: Count I – Breach of Contract; Count II – Breach of Warranty of Fitness for a Particular Purpose; Count II – Negligent Misrepresentation; and Count IV – Fraudulent Misrepresentation.  Defendants Remax and Miller (“Moving Defendants”) filed Preliminary Objections on December 22, 2016.  Defendant Grimes filed an Answer to Complaint and New Matter on December 27, 2016.
Plaintiffs then filed an Amended Complaint, to which Moving Defendants consented, on January 11, 2017, modifying Count II from a Breach of Warranty to a Failure to Disclose Material Defects under 68 Pa.C.S.A. § 7308, and amending language within the complaint to include allegations of violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. (“UTPCPL”).  Plaintiffs also filed an Answer to New Matter of Grimes on January 13, 2017.
On January 19, 2017, Remax and Miller raised Preliminary Objections to Plaintiffs’ Amended Complaint consisting of (1) preliminary objections pursuant to Pa. R.C.P. 1028(a)(2) as to paragraphs 26,34,36,45,47,56 and 58 of Plaintiff’s Amended Complaint for failure to comply with Pa.R.C.P. 1021(b) in stating a specific amount of damages where the damages sought are not limited to a sum certain; and (2) preliminary objections pursuant to Pa.R.C.P 1028(a)(2) and (3) as to paragraphs 35,37,46,48,57 and 59 of the Amended Complaint for failure to plead specific facts or, alternatively, for inclusion of impertinent matter. (Defs.’ Prelim. Objects. To Pls.’ Am. Compl. Jan., 19, 2017).  Grimes had not consented to the Amended Complaint, so Plaintiffs filed their Motion for Leave to File an Amended Complaint on February 3. 2017.  Plaintiffs filed their Response to Preliminary Objection on February 15, 2017 with a Brief in Support filed on March 6, 2017.  Thereafter, on March 9, 2017, Plaintiff petitioned this Court to Make Rule Absolute and this Court granted such on the same day.
DISCUSSION
In deciding Preliminary Objections, the Court must accept as true all material facts set forth in the complaint as well as all inferences reasonably deducible therefrom. Santiago v. Pennsylvania Nat’l. Mutual Casualty Ins. Co., 613 A.2d 1235, 1238 (Pa. Super. 1992). A Preliminary Objection should be sustained only where it appears with certainty that upon the facts averred, the law will not allow the plaintiff to recover. Milliner v. Enck, 709 A.2d 417, 418 (Pa. Super. 1998).
Defendant’s Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(2)
Under Pennsylvania Rule of Civil Procedure 1028(a)(2), a party may challenge a pleading for (1) failure to conform to law or rule of court, or (2) for inclusion of scandalous or impertinent material.
Rule 1021(b) of the Pennsylvania Rules of Civil Procedure prohibits any pleading demanding relief for unliquidated damages from claiming any specific sum.
In moving to strike several claims for a specific amount of damages in the amended complaint, Moving Defendants argue that this “is not a case where there is a fixed amount of damages sought” therefore, “the damages are unliquidated and the amended complaint violates Rule 1021(b).” (Defs.’ Memo. of Law in Supp. of Prelim. Objects. 2, Jan. 19, 2017).
Plaintiffs argue that Pa.R.C.P. 1021(b) is not binding on the Plaintiffs because they “have no way to know what assets Defendants have or can liquidate.” (Pls.’ Memo. Of Law in Supp. of Resp. 4, February 7, 2017).  Furthermore, Plaintiffs argue that the pleading furthers “the judicial policy against prejudicial surprise.” Id.
Plaintiffs’ Amended Complaint alleges and seeks recovery “[f]or compensatory damages of at least $100,300.59.” (Pls.’ Am. Compl. 5:26; 7:36; 8:47; and 10:58, Jan. 10, 2017).  Plaintiff states that the specified amount is directly correlated to the amount Plaintiffs spent “to properly remediate the home from the mold problem.” Id. at 5:20.  We agree with the Moving Defendants in their assertion that this action has not fixed an amount for damages sought.
Unliquidated damages are damages that cannot be determined by a fixed formula and must be established by a judge or jury. Black’s Law Dictionary (10th ed. 2014).  As we can see, Plaintiffs intended to seek compensatory damages of at least $100,300.59.  The operative phrase being “at least,” which would indicate that the Plaintiffs were seeking at least some determination as to a damages amount that would ultimately be awarded.  We therefore grant Defendant’s Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(2) and strike the claims for a specific amount of damages.  Plaintiffs may amend the complaint so that the amount of damages requested is in compliance with Pa.R.C.P. 1021(b).
Defendant’s Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(2) and (3)
Pennsylvania Rule of Civil Procedure 1028(a)(3) allows a party to object to a pleading for insufficient specificity. The question presented by Pa.R.C.P. 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense or . . . [if it] informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Kapacs v. Martin, 81 Pa. D. & C.4th 509, 516 (C.C.P. Lacka. Cty. 2006) (citations omitted).  All the allegations of the complaint are considered and appraised in light of the nature of the case.  Hock v. L. B. Smith, Inc., 69 Pa. D. & C. 2d 420 (Pa. Com. Pl. 1974).  “Additionally, in determining whether a particular paragraph in a complaint is stated with the necessary specificity, such paragraph must be read in context with all the allegations in the complaint. Only then can a court determine whether the defendant is put on adequate notice of the claim against which it must defend.”  Unified Sportsmen, 950 A.2d at 1134-1135.
As stated above, Pa.R.C.P. 1028(a)(2), allows a party to challenge a pleading for (1) failure to conform to law or rule of court, or (2) for inclusion of scandalous or impertinent material.
Plaintiffs have included language alleging violation of the UTPCPL interspersed within their claims for failure to disclose material defects, negligent misrepresentation and fraudulent misrepresentation.  Furthermore, Plaintiffs have requested relief in part for treble damages pursuant to the UTPCPL as prescribed under 73 P.S. § 201-9.2 within the aforementioned claims.
Moving Defendants argue that the causes of action, as stated, do not support the relief allowable under the UTPCPL and thus, inclusion of language from the UTPCPL within the claims is improper as the Plaintiffs have not asserted specific provisions of the statute under which such claims are asserted. (Defs.’ Memo. Of Law 3).   Moving Defendants therefore contend that Plaintiffs must set forth a separate cause of action under which to assert the claims pursuant to the UTPCPL. Id.  Alternatively, Moving Defendant objects to Plaintiffs’ inclusion of UTPCPL language as impertinent under Pa.R.C.P. 1028(a)(2) since the allegations of breach contained therein are immaterial. Id.
Plaintiffs argue that they have pled their cause of action for fraudulent misrepresentation with particularity to establish a prima facie case of fraud. (Pls.’ Memo. of Law 5).  In response to Moving Defendants’ alternative argument, Plaintiffs respond that the irrelevancy of allegations is not enough to strike lacking a show of prejudice or injury. Id.
The intent of the UTPCPL is to provide protection to the public from fraudulent and unfair or deceptive business practices. Pirozzi v. Penske Olds-Cadillac-GMC, Inc., 413 Pa. Super. 308, 313, 605 A.2d 373, 375 (1992).  Our Supreme Court has declared that the UTPCPL should be construed liberally so as “to effect its object of preventing unfair or deceptive practices.” Com., by Creamer v. Monumental Properties, Inc., 459 Pa. 450, 460, 329 A.2d 812, 817 (1974).
However, it has been recognized that “the [UTPCPL] embraces actionable conduct which sounds in assumpsit as well as trespass and which parallel actions upon contracts as well as those arising in tort.” Gabriel v. O’Hara, 368 Pa. Super. 383, 396, 534 A.2d 488, 495 (1987).  “[T]he remedies of the UTPCPL are not exclusive, but are in addition to other causes of action and remedies.” Wallace v. Pastore, 1999 PA Super 297, ¶ 10, 742 A.2d 1090, 1093 (1999).  Accordingly, the “UTPCPL creates a civil action which is separate and distinct.” Gabriel at 396.
For the above-stated reasons, we agree with Moving Defendants that any such claim brought under the UTPCPL should be set forth as a separate and distinct cause of action and grant Defendant’s Preliminary Objection Pursuant to Pa.R.C.P. 1028(a)(2) and (3) to strike the language contained in the aforementioned nonconforming paragraphs.  Plaintiffs may amend their complaint so as to add a separate cause of action where necessary.
We will enter an order consistent with the foregoing.