Piccioli, D. v. Faust Heating & A/C ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENISE PICCIOLI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
FAUST HEATING AND A/C CO., INC. : No. 2532 EDA 2022
Appeal from the Order Entered September 6, 2022
In the Court of Common Pleas of Northampton County
Civil Division at No: C-48-CV-2021-07544
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
CONCURRING/DISSENTING MEMORANDUM BY STABILE, J.:
FILED MAY 5, 2023
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
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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
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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
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*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
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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.
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