Correa, D. v. CMC General Contracting ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DIEGO CORREA, AN INDIVIDUAL, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellant
v.
CMC GENERAL CONTRACTING, LLC, A
PENNSYLVANIA CORPORATION, AND
RICHARD CLARK, AN INDIVIDUAL,
Appellees No. 85 WDA 2017
Appeal from the Order Entered December 12, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): AR 15-001113
BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 14, 2018
Appellant, Diego Correa, an individual, appeals from the trial court’s
order granting summary judgment in favor of Appellees, CMC General
Contracting, LLC (referred to herein as CMC), a Pennsylvania Corporation, and
Richard Clark, an individual. We affirm in part, reverse in part, and remand
for further proceedings.
The trial court summarized the factual background and procedural
history of this case as follows:
On December 12, 2016, this [c]ourt dismissed [Mr. Correa’s]
lawsuit upon [Appellees’] Motion for Summary Judgment, after
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* Former Justice specially assigned to the Superior Court.
** Retired Senior Judge assigned to the Superior Court.
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argument and considering [b]riefs of both parties. [Mr. Correa]
appeals from the dismissal.
[Mr. Correa] filed an Arbitration Complaint which sought to hold
[Appellees] responsible for allegedly installing a defective roof on
his residence, which caused leaks and water damage.
Mr. Correa found evidence of water leaks on his bedroom ceiling
in 2011. He never discovered the source of the leak, but
contracted with [Appellees] in March of 2011 to replace the entire
roof. The roof was replaced in April of 2011.
[Mr. Correa] complained in July of 2012 that the roof was leaking
again. [Appellees] made efforts to fix the leaks, but did not find
the source. On or about August of 2015, approximately three (3)
years later, [Mr. Correa] engaged Home Depot to replace the roof
that [Appellees] installed in 2011, which Home Depot completed.
[Mr. Correa] claims that the roof no longer leaks.
In 2015, [Mr. Correa] filed a Complaint in Arbitration against
[Appellees], consisting of six (6) counts: breach of contract…,[1]
negligence…, [U]nfair [T]rade [P]ractices and Consumer
Protection Law[ (UTPCPL), 73 P.S. § 201-1 et seq,] breach of
warranty and implied breach of warranty.
An Arbitration Hearing was held November 12, 2015, wherein [Mr.
Correa] produced no expert witness that [Appellees’] work caused
the roof to leak and subsequent water damage. Rather, [Mr.
Correa] offered his own admittedly lay opinion and speculated that
the spacing of the shingles at 6”, instead of 5”, and the lack of an
ice/water dam was the sole cause of the leak. [Mr. Correa] admits
that he did not engage [Appellees] to find the leak, merely to
replace the entire roof. He conceded that he himself has no
expertise in roofing or the matter of the cause of the leak or that
it was something [Appellees] did in replacing the roof which
caused the leak.
Q: Mr. Correa – and I am not trying to sound offensive or
anything. Are you a roofer?
A: No, I am not.
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1Mr. Correa filed separate breach of contract counts against Appellee CMC
and Appellee Clark.
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Q: So, you don’t consider yourself an expert on any roofing
or shingles or anything like that?
A: Well, I’ve learned a lot since this happened, but-
Q: You don’t consider yourself an expert?
A: I am not an experienced roofer or an expert, no.
Despite the lack of any expert testimony to support [Mr. Correa’s]
speculation, the panel awarded $35,000.00 to him. During the
hearing, [Appellees] learned the identity of the Home Depot
installation specialist, Mike Boyle,[2] who replaced the roof in
2015.
Mike Boyle was deposed. When he arrived at [Mr. Correa’s] home
to examine the roof, the entire roof which [Appellees] installed
had already been torn off and placed in the dumpster. The only
portion remaining was the plywood layer. Because Home Depot’s
policy was to remove all water damaged plywood and replace it,
Mike Boyle thoroughly inspected it. He testified that if the roof
had in fact been leaking, the plywood would have evidence of any
water damage.
A: If the roof has had a leak, it’s very evident. The material
is real “punky,” as we say. If it’s plywood, a lot of time it’s
delaminating other black spots from the water, sitting there
for a lengthy period of time. There was no evidence [of]
any issues with the roof at the time. We didn’t replace any
material on the existing roof.
[***]
A: From what I saw, there was no evidence that the roof
was leaking.
Q: And you’re basing that solely by looking at the plywood?
A: Yes.
Q: So, in all instances were [sic] a roof is leaking, the
plywood has to show some signs of it?
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2 In their briefs, the parties refer to the installation specialist as Mike Boyd,
not Mike Boyle. See Mr. Correa’s Brief at 15; Appellees’ Brief at 9 n.4. Our
review of the record indicates that Boyle is the correct last name.
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A: In most cases, yes. There’s usually water marks in the
plywood, depending on the plywood, it could be
delaminating. Depending on how long it has leaked, it could
be rotted. There’s usually ways we can usually see.
Q: Did you see the entire plywood of the roof?
A: Yeah, we walked the whole roof.
Q: So, you saw it entirely exposed?
A: Yes.
Based upon his experience and a visual inspection of the entire
plywood roof, Mike Boyle was unable to find any roof leakage from
the roof installed by [Appellees].
Trial Court Opinion (TCO), 3/8/2017, at 2-4 (internal citations to record
omitted).
As mentioned supra, the trial court granted summary judgment in favor
of Appellees on all of Mr. Correa’s claims. Thereafter, Mr. Correa filed a timely
notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. The trial court subsequently
issued a Rule 1925(a) opinion.
Presently, Mr. Correa raises the following issues for our review:
1. Whether the facts, including but not limited to [Appellees’]
implicit affirmation that the cause of Mr. Correa’s damages
was a leak in the roof, the testimony of Mr. Correa[,] and
the fact that a subsequent roof replacement corrected the
leakage[,] establish[] a genuine issue of material fact which
must be resolved by a fact-finder?
2. Whether the facts presented warrant denial of [Appellees’]
Motion for Summary Judgment under a Res Ipsa Loquitur
theory?
3. Whether the failure to raise, mention and/or argue a count
in an argument for summary judgment precludes dismissal
of that [c]ount and/or whether the available evidence
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establishes a genuine issue of material fact so as to require
consideration by a fact-finder?
Mr. Correa’s Brief at 3.
Initially, we set forth our standard of review:
[S]ummary judgment is appropriate only in those cases where the
record clearly demonstrates that there is no genuine issue of
material fact and that the moving party is entitled to judgment as
a matter of law. When considering a motion for summary
judgment, the trial court must take all facts of record and
reasonable inferences therefrom in a light most favorable to the
non-moving party. In so doing, the trial court must resolve all
doubts as to the existence of a genuine issue of material fact
against the moving party, and, thus, may only grant summary
judgment where the right to such judgment is clear and free from
all doubt. On appellate review, then, an appellate court may
reverse a grant of summary judgment if there has been an error
of law or an abuse of discretion. But the issue as to whether there
are no genuine issues as to any material fact presents a question
of law, and therefore, on that question our standard of review is
de novo. This means we need not defer to the determinations
made by the lower tribunals. To the extent that this Court must
resolve a question of law, we shall review the grant of summary
judgment in the context of the entire record.
Kennedy v. Robert Morris University, 133 A.3d 38, 41 (Pa. Super. 2016)
(citation omitted).
In his first issue, Mr. Correa argues that “the facts, including but not
limited to [Appellees’] implicit affirmation that the cause of Mr. Correa’s
damages was a leak in the roof, the testimony of Mr. Correa[,] and the fact
that a subsequent roof replacement corrected the leakage[,] establish[] a
genuine issue of material fact which must be resolved by a fact-finder[.]” See
Mr. Correa’s Brief at 3. Relatedly, he claims that no expert is needed to
establish that Appellees’ work caused his damages, as “[o]ne need not be a
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physicist to understand that rainwater does not fall upon the earth and rise
up to enter through the ceilings of Mr. Correa’s second floor rooms.” Id. at
13. We address these contentions in turn.
To begin, with regard to his breach of contract and negligence claims,
Mr. Correa argues that he has presented sufficient evidence to establish a
genuine issue of material fact that must be resolved by a fact-finder. See id.3
We reiterate that Mr. Correa alleges, inter alia, that Appellees breached the
contract to replace his roof by failing to act with reasonable care and
competence, and were negligent in failing to perform work which prevented
water from entering into the premises.4 See Complaint, 3/9/2015, at ¶¶ 15,
25. He advances that a genuine issue of material fact exists for those claims
because: (1) Appellees “established by its actions its belief as to the cause of
the leaks and the fact that it would repair said leaks by replacing the roof[,]”
id. at 15;5 (2) Mr. Correa testified at arbitration that — though there was
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3 As discussed further infra, Mr. Correa argues that Appellees did not include
his breach of warranty and UTPCPL claims in their motion for summary
judgment. See Mr. Correa’s Brief at 19-20.
4 Appellees point out that they were “hired by Mr. Correa solely to replace the
roof, not to investigate or locate the cause of the existing water leaks.”
Appellees’ Brief at 4 (citation omitted). See also TCO at 3 (“[Mr. Correa]
admits that he did not engage [Appellees] to find the leak, merely to replace
the entire roof.”).
5 To elaborate, Mr. Correa claims that he “contracted with [Appellees] to
replace a roof in order to correct a problem with a leaking roof. Implicit in the
acceptance of this contract is the acceptance by [Appellees] that the problem
addressed, leakage, was the result of a bad roof.” Mr. Correa’s Brief at 13.
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water damage before Appellees worked on the roof — the water damage
became worse after Appellees’ roofing work, see id. at 9-10, 15;6 and (3) a
subsequent repair of the roof by another contractor did stop the leakage, id.
at 15. Yet, none of this evidence establishes that — or explains how —
Appellees’ work on the roof caused the leaking, particularly given that Mr.
Correa had struggled with leaks before Appellees’ work commenced. Further,
the trial court acknowledges that, although Mr. Correa suggests that the leak
occurred because Appellees allegedly failed to install an ice/water dam and
improperly spaced the shingles, Mr. Correa “did not preserve the roof for
examination prior to filing this lawsuit, so potential witnesses beyond [Mr.
Correa] himself had no means to find fault with the roof or associate its
condition in any way with [Mr. Correa’s] description of a potential roof leak.”
TCO at 5; see also Mr. Correa’s Brief at 8.
Next, Mr. Correa contests whether he needed an expert to prove
causation. He states, “[e]xpert testimony is required only where the subject
matter is beyond the scope of understanding of a jury. Nothing about the
leaky roof is so complex as to require an expert.” Id. at 6. He cites to Storm
v. Golden, 538 A.2d 61 (Pa. Super. 1988), for the proposition that “[e]xpert
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6 But see Appellees’ Brief at 7 (“This argument assumes … that the source of
the water damage was water leaking from a roof and, in particular, the roof
[Appellees] installed. The argument fails to take into account the other
possible causes or sources for water leaking into one’s residence, including
gaps in [the] exterior of the residence, fascia, soffit vents, deteriorated bricks
or mortar, faulty plumbing or ventilation systems, and the real possibility that
the pre-existing water damage simply worsened over time independent from
any action of [Appellees].”).
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testimony becomes necessary when the subject matter of the inquiry is one
involving special skills and training not common to the ordinary lay person.”
Id. at 64 (citations omitted); see also Mr. Correa’s Brief at 12. Moreover, he
points out that expert testimony as to causation is not required “where there
is an obvious causal relationship between the injury complained of and the
alleged negligent act.” Mr. Correa’s Brief at 11 (quoting Matthews v. Clarion
Hospital, 742 A.2d 1111, 1112 (Pa. Super. 1999) (emphasis in original;
citation and internal quotation marks omitted)).
We disagree with Mr. Correa that expert testimony was unnecessary
here. As Appellees aptly explain:
Mr. Correa identifies two potential areas where [Appellees] may
have deviated from the installation contract: 1) installation of the
ice/water dam and 2) installing the shingles with a 6-inch instead
of a 5-inch overlap. However, the record is devoid of any
evidence, including the opinion of an expert witness, supporting
his position that these deviations, if true, caused the water
damage alleged in this case.
The installation of a residential roof and the investigation of the
source of water damages requires some technical expertise and
construction experience. [Mr. Correa] is essentially arguing that
if the inside of a home is damaged, it must necessarily be from
water leaking from the roof. While experience teaches that water
entering the home will cause damage, the issue raised by [Mr.
Correa’s] claims is whether his particular damage is caused by
water entering from a leaky roof. And, if so, whether the leak was
from the existing roof or the roof installed by [Appellees].
Whether the installation of ice/water protection or the spacing of
shingles caused [Mr. Correa’s] property damage[] requires
knowledge and experience beyond that possessed by an average
person. This is especially true when [Mr. Correa’s] property was
already damaged by water.
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Appellees’ Brief at 4-5 (footnote omitted).7
We concur with Appellees’ analysis, and do not find the causal
relationship between Appellees’ work and Mr. Correa’s damages to be so
obvious as to eliminate the need for expert testimony. Additionally, as
mentioned above, Mr. Correa did not preserve the roof installed by Appellees
for examination prior to filing this lawsuit. See TCO at 5. Because Mr. Correa
has proffered no evidence to establish that Appellees’ work caused the water
damage he experienced, the trial court did not err in granting summary
judgment in favor of Appellees on this basis.
In his second issue, Mr. Correa argues that, “[w]hen considered
pursuant to a theory of [r]es [i]psa [l]oquitur, there exists sufficient evidence
of causation so as to survive a [m]otion for [s]ummary [j]udgment.” Mr.
Correa’s Brief at 17. Mr. Correa insists that “ongoing leakage does not
ordinarily occur after a contractor has been hired to repair the condition in the
absence of negligence.” Id. at 18-19. He cites to Quinby v. Plumsteadville
Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), which explains:
Res ipsa loquitur allows juries to infer negligence from the
circumstances surrounding the injury. Res ipsa loquitur, meaning
literally “the thing speaks for itself,” is “a shorthand expression
for circumstantial proof of negligence—a rule of evidence.”
Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 99 (1974).
It is a rule that provides that a plaintiff may satisfy his burden of
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7 See also TCO at 5 (“In order to make out a prima facie case, it was [Mr.
Correa’s] burden to prove that [Appellees] caused a leak and water damage
by installing shingles at 6 [inch] overlap and not installing an[] ice/water dam.
… [Mr. Correa] not only did not offer expert evidence to prove [Appellees’]
alleged work caused a leak, [Mr. Correa] offers his own uneducated opinion.”).
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producing evidence of a defendant’s negligence by proving that he
has been injured by a casualty of a sort that normally would not
have occurred in the absence of the defendant’s negligence.
WILLIAM L. PROSSER, LAW OF TORTS §§ 39, 40 (4th ed. 1971)
(calling res ipsa loquitur a “simple matter of circumstantial
evidence”). As noted, the Restatement (Second) of Torts § 328D
formulates the evidentiary theory of res ipsa loquitur as follows:
(1) It may be inferred that harm suffered by the plaintiff is
caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur
in the absence of negligence;
(b) other responsible causes, including the conduct of the
plaintiff and third persons, are sufficiently eliminated by
the evidence; and
(c) the indicated negligence is within the scope of the
defendant’s duty to the plaintiff.
(2) It is the function of the court to determine whether the
inference may reasonably be drawn by the jury, or whether
it must necessarily be drawn.
(3) It is the function of the jury to determine whether the
inference is to be drawn in any case where different
conclusions may reasonably be reached.
Rest. (Second) Torts § 328D. See also Gilbert, 457 Pa. 602, 327
A.2d 94 (adopting res ipsa loquitur as defined in the Restatement
(Second) of Torts § 328D).
Quinby, 907 A.2d at 1071 (footnotes omitted); see also Mr. Correa’s Brief
at 17-18.
The trial court rejected Mr. Correa’s res ipsa loquitur theory, pointing to
the Restatement (Second) Torts § 328D(1)(b), supra (“It may be inferred
that harm suffered by the plaintiff is caused by negligence of the defendant
when … other responsible causes, including the conduct of the plaintiff and
third persons, are sufficiently eliminated by the evidence[.]”). The trial court
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observed that Mr. Correa did not present evidence to sufficiently eliminate
other responsible causes, as Mr. Correa’s argument “fails to acknowledge that
the pre-existing leakage[,] which was not remedied by the new roof, was
possibly the result of some cause or condition of another area of the home
which remains unknown….” TCO at 5. In response, Mr. Correa advances that
“the plaintiff is not required to exclude all other possible conclusions beyond
a reasonable doubt, and it is enough that he makes out a case from which the
jury may reasonably conclude that the negligence was, more probably than
not, that of the defendant.” Mr. Correa’s Brief at 19 (quoting Restatement
(Second) of Torts § 328D (1965) (Comment f)).
Again, we disagree with Mr. Correa’s argument. As Appellees
persuasively set forth:
Prior to contracting with [Appellees] for the replacement roof, Mr.
Correa suffered water damage to the inside of his residence. He
did not hire anyone to repair that damage, or investigate the
cause of that damage. He simply assumed his original roof was
leaking water and needed to be replaced. The record is devoid of
any evidence eliminating other possible causes for the water
leaking into Mr. Correa’s residence. Although Mr. Correa correctly
contends that he isn’t required to exclude all other possible
causes, he fails to exclude even one (1) other possible cause of
the water damage. Section 328(D)(1)(b) requires that other
causes be “sufficiently” eliminated from consideration by the
evidence, thus placing a burden upon [Mr. Correa] to diligently
investigate those other causes before claiming eligibility for the
causal inference inherent in the theory of rea ipsa loquitur. [Mr.
Correa] failed to diligently investigate any other responsible
causes, including any potential failure to mitigate or repair the
pre-existing water damage.
Appellees’ Brief at 11-12 (internal citations omitted).
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Mr. Correa has not sufficiently eliminated other possible causes for the
water damage, and we cannot conclude that Appellees’ roofing more probably
than not caused the water damage to Mr. Correa’s home. Accordingly, we
determine that Mr. Correa cannot invoke the doctrine of res ipsa loquitur here.
In his third issue, Mr. Correa states that “[t]he [t]rial [c]ourt erred when
it failed to limit the award of [s]ummary [j]udgment to those charges raised
in the [m]otion filed by [Appellees].” Mr. Correa’s Brief at 19. Mr. Correa
claims that, although Appellees’ only mention of Mr. Correa’s claims relating
to breach of warranty and UTPCPL “was to recognize their existence in the
[c]omplaint[,]” the trial court nevertheless granted summary judgment in
favor of Appellees on those claims. Id. at 20. Further, in addition to
exceeding the scope of Appellees’ summary judgment motion, Mr. Correa
claims that the evidence establishes material issues of fact which render
summary judgment on his breach of warranty and UTPCPL claims improper.
See id.
We reverse the trial court’s entry of summary judgment in favor of
Appellees on Mr. Correa’s breach of warranty and UTPCPL claims, and remand
for further proceedings. Appellees’ motion for summary judgment appears to
us to challenge only Mr. Correa’s negligence and breach of contract claims,
while barely even acknowledging his breach of warranty and UTPCPL claims.
We are unsure whether Appellees intended to exclude discussion of those
claims, mistakenly overlooked them, or aimed to include them but did not do
so clearly enough. In any event, Appellees do not present any argument in
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their brief to convince us that their motion for summary judgment indeed
encompassed such claims, and the trial court’s Rule 1925(a) opinion does not
address this issue despite Mr. Correa’s raising it in his Rule 1925(b) statement.
While we recognize that it will be difficult for Mr. Correa to succeed on his
breach of warranty and UTPCPL claims given the lack of causal connection
between Appellees’ work and the water damage, we note that Mr. Correa has
raised a claim under the Home Improvement Consumer Protection Act, 73 P.S.
§ 517.1 et seq., which he says amounts to a violation of the UTPCPL.8 See
Mr. Correa’s Brief at 19-21. Because the parties have not argued issues
specifically pertaining to breach of warranty and the UTPCPL before the trial
court, and the trial court has not appeared to have considered those claims,
we remand this matter so that the trial court may address them in the first
instance. See Branton v. Nicholas Meat, LLC, 159 A.3d 540, 561-62 n.21
(Pa. Super. 2017) (remanding case so that the trial court could rule on the
issue in the first instance).
Order affirmed in part and reversed in part. Case remanded for further
proceedings consistent with this memorandum. Jurisdiction relinquished.
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8 Specifically, Mr. Correa claims that Appellees’ contract did not contain, inter
alia, required information regarding insurance coverage under 73 P.S. §
517.7(a)(11). See Mr. Correa’s Brief at 20-21.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2018
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