Spellman, D. v. Benjamin Moore & Co.

J-A07022-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DANIEL J. SPELLMAN AND MARGARET IN THE SUPERIOR COURT OF
SPELLMAN PENNSYLVANIA
Appellants
v.
BENJAMIN MOORE & CO.
Appellee No. 1112 WDA 2016
Appeal from the Judgment Entered July 1, 2016
In the Court of Common Pleas of Allegheny County
Civil Division at No: GD 11-025063
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 9, 2017
Appellants/plaintiffs Daniel J. and Margaret Spellman, husband and
wife, appeal from the July 1, 2016 judgment entered in the Court of
Common Pleas of Allegheny County (“trial court”) against them and in favor
of Appellee/defendant Benjamin Moore & Co. (“Benjamin Moore”) in this civil
action. Upon review, we affirm.
The facts and procedural history of this case are undisputed.1
Appellants purchased premium Natura paint (“Natura”) manufactured by
Benjamin Moore and used it to paint two walls in the family room of their
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*
Retired Senior Judge assigned to the Superior Court.
1
Unless otherwise specified, these facts come from the trial court’s October
7, 2016 opinion.
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home. Thereafter, Appellants detected a foul odor emanating from the
painted walls. They eventually contacted Benjamin Moore and it dispatched
an employee, Dan Farinelli, to Appellants’ home to evaluate and remedy the
problem. Mr. Farinelli could not smell any odor in Appellants’ home, even
though he visited the home on two other occasions in 2010.
Mr. Farinelli wanted to assist Appellants despite the fact that he
himself did not detect the fishy smell Appellants described to him. Mr.
Farinelli, however, did inform Appellants that the “curing” period for Natura
was thirty days and that they might want to wait until the paint cured before
taking any further action. Appellants were not amenable to his suggestions.
Mr. Farinelli then suggested painting over and resealing the walls with
another product. Appellants also declined to entertain this suggestion.
Thereafter, Mr. Farinelli called a chemist at Benjamin Moore who
recommended that a mixture of baking soda and water may be applied to
the walls to remedy the alleged odor problem. Appellants agreed with this
recommendation.
Mr. Farinelli returned to Appellants’ home in late January 2010 and
applied the mixture to the two walls, despite the fact that he still did not
smell the alleged odor. Afterwards, Appellants called Benjamin Moore and
complained that the application of the mixture caused the odor to
exacerbate and expand into the rest of their home. Not long after,
Appellants decided to leave their home permanently. They did nothing
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further to address the alleged condition, other than to ventilate the home
occasionally.
A few months later, Appellants hired a local company to test the
painted drywall as well as the air quality inside of their home for the
presence of volatile organic compounds (“VOCs”). The test revealed only
trace amounts of VOCs, an amount which proved to be safe. Appellants
nevertheless refused to live in the house. They subsequently ordered
additional tests, which also revealed that the air in the home was healthy to
breathe.
Appellants were not satisfied with the test results from the local
companies and sought out a company from Maryland to confirm their claims
that their home was unsafe because of Natura. The out-of-state company
performed a test, which likewise found the home to contain normal, safe air.
Nevertheless, the company prepared a computerized model, which did not
actually sample the air, or the Natura paint. The company was unaware of
the paint’s formula or any of its ingredients. Furthermore, the formula used
by the company assumed a toxicity level of January 10, 2010, the day
Appellants painted. The model was prepared two and one-half years later.
The company’s assumption of toxicity level was not based upon fact and the
company acknowledged that an unpleasant odor does not equate to the
presence of harmful toxins. The home was safe and the paint was harmless.
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In 2016, Benjamin Moore retained another testing company to test for
VOCs and semi-VOCs. Nothing other than normal amounts found in nature
or any home was present in Appellants’ home.
Nevertheless, Appellants persisted that they had been harmed by
Natura. Mr. Spellman sought no medical attention until more than two and
one-half years after painting his walls with Natura. He finally sought medical
attention after contracting a case of hives after playing golf. His physician
diagnosed hives related to contact dermatitis or the sun. Appellants though
claim that the hives were related to inhaling fumes from the paint.
Subsequently, the hives disappeared as the result of medical treatment. Mr.
Spellman also had a history of suffering from hives, one in particular
occurred twenty-two years prior to his painting with Natura and lasted one
year.
Later, Mr. Spellman consulted with a Virginia physician, who gave him
a checkup and pronounced him normal, except for hives and a rash, and a
little swelling in his face and around his mouth. The doctor attributed the
symptoms to multiple chemical sensitivities, but could not tell that the
sensitivities were associated with Natura or any other source. He also did
not know the formulation of Natura paint. Mr. Spellman underwent an
independent medical evaluation with an environmental and occupational
physician in the course of trial preparation who found that neither husband
nor wife had suffered an injury from Natura.
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Natura was developed as an environmentally greener alternative to
traditional paint and was intended to eliminate as many VOCs as possible to
be virtually VOC free. It is formulated to contain odorless compounds. The
defoaming agent in Natura was simply canola oil. However, Benjamin Moore
received about sixty complaints about the odor out of half a million cans
sold. Benjamin Moore investigated and, with the help of their supplier of
defoaming agent, the canola oil was found to be the cause of those few
complaints. Benjamin Moore’s discovery occurred after Appellants had
applied the paint to the walls in their family room. Only Appellants could
smell it in their own home. The canola oil was removed from Natura as a
result of Benjamin Moore’s investigation.
Appellants instituted a civil action against Benjamin Moore. On July 7,
2014, Appellants filed an amended complaint, alleging, among other things,
causes of action for negligence, negligent misrepresentation, common law
fraud, and violations of Section 201-2(4)(v), and (vii) of the Unfair Trade
Practices Act and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201–1, et
seq.2 Appellants specifically alleged that, on December 4, 2009, they
purchased Natura, which Benjamin Moore “manufactures, distributes,
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2
To the extent Appellants raise claims under Section 201-2(4)(ii) and (xxi)
on appeal, we decline to review them. Appellants failed to assert violations
under these subsections of the UTPCPL in their complaint or before the trial
court and, as a result, they may not raise violations of these subsections for
the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
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markets and sells.” Amended Complaint, 7/7/14, at ¶¶ 3-5. Appellants
alleged that they were induced into purchasing Natura because Benjamin
Moore marketed it “as a premium paint for its eco-friendly features,
including that the paint was “ZERO-VOC,” and “virtually odorless,” and “fast
drying.” Id. at ¶ 4. Appellants further alleged that on December 10, 2010,
they painted two walls in the family room in their home with two coats of
Natura. Id. at ¶ 7. Appellants alleged that the painted walls did not cure
properly, remained tacky, and emitted a “fishy or urine smell.” Id. Because
the mixture of baking soda and water worsened the odor, Appellants alleged
that they were forced to leave their home and relocate to a nearby motel.
Id. at ¶ 19. Appellants alleged that they suffered injuries and damages as a
result of the odor. Id. at ¶¶ 34-37.
Appellants’ case ultimately proceeded to a jury trial. The jury heard all
of the above as evidence for Appellants. They were asked whether Benjamin
Moore fraudulently or negligently misrepresented their product as free of
VOCs and virtually odorless and fast drying, and whether Benjamin Moore
breached any warranty with regard to Natura. In relevant part, the jury’s
verdict slip reads as follows:
1. Do you find that [Benjamin Moore] fraudulently misrepresented
the paint product used in the home of [Appellants] and harm
was factually caused to [Appellants]?
________ ___X___
YES NO
2. Do you find that [Benjamin Moore] breached its warranty
concerning the paint product used in the home of [Appellants]
and harm was factually caused to [Appellants]?
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________ ___X___
YES NO
3. Do you find that [Benjamin Moore] negligently misrepresented
the paint product used in the home of [Appellants] and harm
was factually caused to [Appellants]?
________ ___X___
YES NO
Jury Verdict Slip, 5/24/16. Thus, the jury found in favor of Benjamin Moore.
Appellants’ UTPCPL claim was submitted to the trial judge, who also found in
favor of Benjamin Moore.
Appellants timely filed post-trial motions, which were denied.
Appellants appealed to this Court. The trial court directed Appellants to file
a Pa.R.A.P. 1925(b) statement of errors complained of appeal. They
complied, raising four assertions of error.3 In response, the trial court
issued a Pa.R.A.P. 1925(a) opinion, denying each of Appellants’ claims.
On appeal,4 Appellants raise four issues for our review:
[I.] Did the trial court err in finding that Appellants did not
establish by a fair preponderance of the evidence that [Benjamin
Moore] violated the [UTPCPL]?
[II.] With the denial of Appellants’ motion for post-trial relief,
which included both a request for judgment notwithstanding the
verdict and a motion for new trial, did the trial court err in
finding Appellants did not establish by a fair preponderance of
the evidence the claim of negligent misrepresentation?
[III.] With the denial of Appellants’ motion for post-trial relief,
which included both a request for judgment notwithstanding the
verdict and a motion for new trial, did the trial court err in
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3
Appellants’ assertions of error challenged only the trial court’s legal
conclusions.
4
Appellants do not challenge the trial court’s factual findings.
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finding that Appellants did not establish by a fair preponderance
of the evidence that [Benjamin Moore] was negligent, which was
not contradicted by any evidence presented by [Benjamin
Moore]?
[IV.] Did the trial court err in granting [Benjamin Moore’s]
motions in limine so as to exclude evidence, testimony and
documents as to the California litigation and blog posts
associated with Natura paint?
Appellants’ Brief at 6 (unnecessary capitalization omitted).
After careful review of the record and relevant case law, we conclude
that the trial court accurately and thoroughly addressed the merits of
Appellants’ issues on appeal. See Trial Court Opinion, 10/7/16, at 5-9.
Accordingly, we affirm the trial court’s July 1, 2016 judgment. We further
direct that a copy of the trial court’s October 7, 2016 opinion be attached to
any future filings in this case.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2017
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