Com. of PA, Office of A.G., by A.G. M. Henry v. Gillece Services, LP ~ Appeal of: Gillece Services, LP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, Office of :
Attorney General, by Attorney General :
Michelle Henry :
:
v. : No. 861 C.D. 2023
: ARGUED: May 23, 2024
Gillece Services, LP, d/b/a Gillece :
Plumbing, Heating, Cooling, and Electrical, :
Inc., Gillece Plumbing and Heating, Inc., :
Rooter-Medic, Electric Medic, Gillece :
Plumbing and Heating, Inc., Thomas J. :
Gillece, individually and as Owner of :
Gillece Services, L.P., Gillece Energy, L.P., :
and Gillece Plumbing and Heating, Inc., :
James F. Hackwelder, individually and as :
Field Supervisor for Gillece Services, L.P., :
and Joseph Nikoula, individually and as :
Field Supervisor for Gillece Services, L.P. :
:
Appeal of: Gillece Services, LP, Gillece :
Plumbing and Heating, Inc., and Thomas :
J. Gillece :
BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE MATTHEW S. WOLF, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY
SENIOR JUDGE LEADBETTER FILED: July 3, 2024
This case concerns an issue of first impression: whether the Home
Improvement Consumer Protection Act1 (HICPA) requires a home improvement
1
Act of October 17, 2008, P.L. 1645, as amended, 73 P.S. §§ 517.1 – 517.19.
contractor to honor a cancellation request from a customer that is not made in
writing—that is, whether the written notice requirement of the Unfair Trade
Practices and Consumer Protection Law2 (UTPCPL) applies to HICPA. Gillece
Services, LP, Gillece Plumbing and Heating, Inc., and Thomas J. Gillece3
(Contractors), a group of home improvement businesses and their majority owner,
appeal from the order of the Court of Common Pleas of Allegheny County granting
permanent injunctive relief4 requiring Contractors to honor requests for rescission
made verbally or by any other medium. We affirm.
The relevant history of the case is as follows. Appellee,
Commonwealth of Pennsylvania, Office of Attorney General, initiated this case
pursuant to Section 4 of the UTPCPL, 73 P.S. § 201-4,5 to enjoin what it believed
were prohibited business practices. In its complaint, the Commonwealth alleged that
2
Act of December 17, 1968, P.L. 1224, as amended, 73 P.S. §§ 201-1 – 201.10.
3
Gillece Services, LP is a domestic limited partnership and registered home improvement
contractor. Gillece Plumbing and Heating, Inc. is a general partner and minority owner of Gillece
Services, LP. Thomas J. Gillece is the President and majority owner/shareholder of both entities
and manages their day-to-day operations. The remaining defendants indicated through counsel
that they have no interest in the outcome of the appeal under Rule 908 of the Pennsylvania Rules
of Appellate Procedure, Pa.R.A.P. 908.
4
Although other matters (civil penalties, costs, and restitution) remain to be resolved at trial,
the trial court’s interlocutory order is immediately appealable as of right under Rule 311(a)(4) of
the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 311(a)(4), because the trial court
granted permanent injunctive relief.
5
Whenever the Attorney General “has reason to believe that any person is using . . . any
method, act[,] or practice declared [by the UTPCPL] to be unlawful, and that proceedings would
be in the public interest, [s]he may bring an action in the name of the Commonwealth against such
person to restrain by . . . permanent injunction the use of such method, act[,] or practice.” 73 P.S.
§ 201-4. As a violation of HICPA is deemed a violation of the UTPCPL, see Section 10 of HICPA,
73 P.S. § 517.10, the Attorney General would have enforcement authority.
2
Contractors, inter alia, rejected timely efforts to cancel home improvement contracts
(Count III).6 After the case had progressed through discovery and production of
expert opinions, the Commonwealth filed a motion for partial summary judgment.7
The filings attendant to the motion establish that Contractors would receive phone
calls from customers seeking to cancel home improvement contracts and, despite
such notice, would proceed to send crews to the customers’ properties and attempt
to commence work, refusing to honor the attempt at cancellation unless and until a
signed notice was given to their employee or received at Contractors’ offices.
After hearing arguments, the trial court entered an order granting a
permanent injunction with respect to the acts and practices alleged in Count III. The
trial court found that Contractors had refused to honor customer requests to cancel
home improvement contracts unless those requests were made in writing and hand-
delivered to Contractors’ employee or corporate offices; had penalized customers to
cancel by entering their properties without permission and commencing work; had
failed to disclose that Contractors did not honor verbal cancellation requests; had
failed to refund all payments within ten business days of receipt of notice of
cancellation; and had misrepresented to a customer that his deposit was non-
refundable because he had not signed an emergency work authorization. (Trial Ct.
Order, ¶ 4.) On appeal, Contractors do not dispute these findings.
The trial court concluded that Contractors violated Section 7(b) of
HICPA, 73 P.S. § 517.7(b), by refusing to permit customers who signed a home
improvement contract the ability to rescind those contracts within three business
6
Other counts for which summary judgment were granted were engaging in deceptive
advertising (Count IV) and making materially false and/or misleading statements and/or omissions
about the basis for Contractors’ pricing (Count VI).
7
An earlier partial summary judgment motion was denied.
3
days and penalizing customers who rescinded their contracts; violated Section 7(a)
of the UTPCPL, 73 P.S. § 201-7(a), by refusing to permit customers who signed a
home improvement contract the ability to rescind their contract within three business
days; violated Section 7(f) of UTPCPL, 73 P.S. § 201-7(f), by misrepresenting to
customers their right to cancel their contracts; violated Section 7(g) of UTPCPL, 73
P.S. § 201-7(g), by failing to refund all payments made under a contract which a
homeowner had validly canceled; and violated Section 7(j.1) of UTPCPL, 73 P.S. §
201-7(j.1), by misrepresenting to customers that their deposit was non-refundable
without their signing an emergency work authorization. (Trial Ct. Order, ¶ 5).
Pursuant to Section 4 of the UTPCPL, 73 P.S. § 201-4, the trial court
entered permanent injunctive relief,8 the following portion of which is appealed by
Contractors:
A. [Contractors] shall permit customers to rescind their
home improvement contracts without penalty within
three (3) business days of the date of signing,
regardless of the medium used by the customer to
provide actual notice of cancellation;
B. [Contractors] shall permit customer to rescind within
three (3) business days of the date of signing any
contract for goods or services having a sale price of
twenty-five dollars ($25) or more contracted to be sold
at the buyer’s residence;
C. [Contractors] shall not misrepresent in any manner a
customer’s right to cancel a home improvement
contract;
D. [Contractors] shall refund within ten (10) business
days all payments made under a contract or sale which
was rescinded by the customer within three (3)
business days of the date of signing.
8
See supra n.5.
4
(Trial Ct. Order, ¶ 16.A - D.)
Contractors filed the instant appeal and the trial court, after issuing an
order directing the filing of a concise statement of errors complained of on appeal,
issued an opinion in support of its order under Rule 1925(a) of the Pennsylvania
Rules of Appellate Procedure, Pa.R.A.P. 1925(a). On appeal, Contractors present
various permutations of the sole substantive issue in the case,9 which may be distilled
as follows: whether the trial court erred in construing HICPA not to require written
notice to cancel home improvement contracts.
We have carefully reviewed the trial court’s opinion issued pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a), and believe that it ably addresses
this issue. Therefore, we adopt the opinion of the trial court in Commonwealth of
Pennsylvania, Office of Attorney General v. Gillece Services, LP (C.C.P. Allegheny,
9
The question of waiver, listed as Issue 1 by Contractors, arises because the trial court stated
in its Rule 1925(a) opinion as follows:
[Contractors] notably do not contest the injunctive relief described
at [¶ 16.]E-G [of the trial court’s order], which relate to Counts IV
and VI; only the relief granted as to Count III is contested. Even
then, [Contractors] do not purport [that] it was improper for this
[c]ourt to grant injunctive relief as to Count III; rather, their claims
are narrowly focused on what could essentially be described as the
“scope” of the relief granted. Therefore, pursuant to this [c]ourt’s
August 15, 2023 Order and Pa.R.A.P. 1925(b)(4)(vii), arguments
related to these issues are waived.
(Trial Ct. Op. at 7 n.4.) It is, as Contractors argue, unclear as to what issues the trial court deemed
to have been waived. Nonetheless, the trial court fully dealt with the merits of the issues raised by
Contractors in their brief to this Court, and we find no waiver relating to those arguments.
5
No. GD-20-009374, filed September 22, 2023) (appended hereto), and affirm.
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Commonwealth of Pennsylvania, Office of :
Attorney General, by Attorney General :
Michelle Henry :
:
v. : No. 861 C.D. 2023
:
Gillece Services, LP, d/b/a Gillece :
Plumbing, Heating, Cooling, and Electrical, :
Inc., Gillece Plumbing and Heating, Inc., :
Rooter-Medic, Electric Medic, Gillece :
Plumbing and Heating, Inc., Thomas J. :
Gillece, individually and as Owner of :
Gillece Services, L.P., Gillece Energy, L.P., :
and Gillece Plumbing and Heating, Inc., :
James F. Hackwelder, individually and as :
Field Supervisor for Gillece Services, L.P., :
and Joseph Nikoula, individually and as :
Field Supervisor for Gillece Services, L.P. :
:
Appeal of: Gillece Services, LP, Gillece :
Plumbing and Heating, Inc., and Thomas :
J. Gillece :
ORDER
AND NOW, this 3rd day of July, 2024, the order of the Court of
Common Pleas of Allegheny County granting the motion for partial summary
judgment is hereby AFFIRMED.
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita