Everett, A. v. Milanese, M.

J-A06025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
ANDREW & ELEANOR EVERETT, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellants
v.
MARK MILANESE, INDIVIDUALLY AND
D/B/A MILANESE REMODELING, AND
MILANESE REMODELING, INC.,
Appellees No. 2670 EDA 2016
Appeal from the Judgment Entered August 19, 2016
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2013-09683
BEFORE: PANELLA, SHOGAN, and RANSOM, JJ.
MEMORANDUM BY SHOGAN, J.: FILED JUNE 19, 2017
This is an appeal from the judgment entered in the Court of Common
Pleas of Chester County on August 19, 2016, awarding damages in favor of
Andrew and Eleanor Everett, Appellants, and against Milanese Remodeling,
Inc. (“Milanese”).1 After careful review, we affirm on the basis of the trial
court’s March 28, 2016 Decision, supplemented by its July 20, 2016 order
denying Appellants’ post-trial motion.
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1
Appellants have incorrectly identified the July 20, 2016 order denying their
post-trial motions as the order on appeal. However, an appeal to this Court
can lie only from judgments entered subsequent to the trial court’s
disposition of post-verdict motions, not from the order denying post-trial
motions. Raheem v. University of the Arts, 872 A.2d 1232, 1234 n.2
(Pa. Super. 2005). Thus, this appeal is properly from the judgment entered
August 19, 2016, and we have corrected the caption accordingly.
J-A06025-17
The trial court issued findings of fact and conclusions of law that
include a thorough and complete narrative of the facts, which we adopt for
purposes of this appeal. See Trial Court Decision, 3/28/16, at 2–15. While
we will not go into exhaustive detail here, the relevant facts are as follows:
In June of 2011, Andrew and Eleanor Everett (“Appellants”) contracted with
Milanese to construct an outdoor entertainment area, including a patio, a
wet bar, awnings, lighting, a waterfall, a grill, a fire pit, a hot tub area,
walkways/sidewalk, and a front stoop. Id. at 3. Mark Milanese, an officer of
Milanese (“Mr. Milanese”), represented to Appellants that he was highly
qualified and had substantial experience with projects like Appellants, that
Milanese would do all of the work, and that all of the materials would be
guaranteed and installation would be performed in accordance with the
manufacturer’s recommendations and specifications. Id.
Based on their conversation with Mr. Milanese, Appellants decided to
have Milanese construct a concrete paver patio utilizing Cambridge brand
pavers and accessories. The written contract states that “the installation of
your home improvement will be performed in accordance with all of the
individual manufacturer’s specifications and recommendations.” Trial Court
Decision, 3/28/16, at 5. The original contract price for the patio and the
outdoor improvements was $69,750.00. Id. Appellants requested
additional work throughout the course of the project, resulting in an
additional cost of $8,500.00. Id. The only actual work performed by
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Milanese was the awning installation. All other work was performed by
Michael White (“White”), a subcontractor. Id. at 6.
In February of 2012, Appellants requested Milanese to add a
pizza oven to their outdoor area. Milanese agreed to install a Cambridge
pizza oven kit for $13,500.00. Trial Court Decision, 3/28/16, at 9. The
actual construction work for the oven was performed by White. Id. at 10.
Almost two years after completion of the project, in August of 2013,
Appellants notified Milanese that the patio was “puddling.” Trial Court
Decision, 3/28/16, at 10. Mr. Milanese visited the project after a rainy day
and did not observe any puddling. Mr. Milanese returned a few days later
with White and a representative from Cambridge. Appellants complained
about deficiencies in the subbase under the patio, particularly in the area
where the patio met the foundation of the house. Mr. Milanese indicated
that he would address the issue and asked Appellants to produce a list of
other problems so that Milanese could address them at one time. Id. at 10–
11. Appellants responded that they had already secured a proposal from
another contractor to completely remove and replace the patio and
accessories and that Milanese would not be permitted to return to the jobsite
to correct the problems. Id. at 11.
Appellants filed a complaint against Milanese and Mr. Milanese,
individually, for breach of contract, breach of warranty, violations of the
Home Improvement Consumer Protection Act and Unfair Trade Practices and
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Consumer Protection Law (“UTPCPL”),2 and for certain misrepresentations
made by Mr. Milanese. In October of 2015, the trial court conducted a
bench trial. Both sides presented expert witnesses. After considering the
testimony, the trial court announced that it was not inclined to award
Appellants the cost of complete removal and reconstruction of the patio as
they requested. N.T., 11/10/15, at 3. The trial court credited the testimony
that water drained properly from the paver surfaces and that any extant
problems could be repaired. The court thereby directed the parties to secure
estimates for the costs of correcting the deficiencies in the project. Id. at 7.
A hearing on the issue of damages was held on March 21, 2016.
Appellants submitted an affidavit from an expert witness who opined that
the repairs would cost between $34,646.00. and $42,721.00. N.T., 3/21/16,
at 4. Milanese’s expert testified that he prepared a report calculating the
cost of repairs at $2,303.36. Id. at 58; Exhibit D-14.
On March 28, 2016, the trial court issued findings of fact and
conclusions of law and awarded Appellants $16,228.00 in damages—the
amount it deemed necessary to fix the defective aspects of the patio.
Appellants filed a post-trial motion, challenging certain of the trial court’s
factual findings and legal conclusions. The trial court held oral argument on
the issues raised in the motion, after which it responded to Appellants’
____________________________________________
2
73 P.S. §§ 517.1, et seq. and 73 P.S. §§ 201.1, et seq., respectively.
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assertions of error and denied the motion. Order, 7/20/16. Judgment was
entered against Milanese only on August 19, 2016. Appellants timely
appealed.
Appellants raise the following issues for appellate review:
I. Were the factual findings of the trial court based upon
competent evidence?
II. After finding a breach of a construction contract and a
violation of the Unfair Trade Practices and Consumer Protection
Law, may a trial court fail to award the reasonable cost of
construction and completion in accordance with the contract?
III. Does the trial court err in failing to find a breach of
warranty, where [Appellees] made false statements of fact with
respect to the quality or condition of the goods and services
provided?
IV. Does a trial court err in calculating a damages award under
the Pennsylvania Unfair Trade Practices and Consumer Protection
Law when it disregards the deterrence function and remedial
purposes of the statute?
V. Does a trial court err in assessing an award of attorney
fees under the UTPCPL when it fails to consider the remedial
purpose of the statute and the factors set out by relevant
caselaw?
VI. Does a trial court err in failing to find a corporate officer
liable under the participation theory, when that corporate officer
actively participates in misrepresentation?
VII. Does a trial court err in failing to find a corporate officer
liable under the “catchall” section of the UTPCPL, when the
corporate officer engages in fraudulent or deceptive conduct
which creates a likelihood of confusion or of misunderstanding?
VIII. Does a trial court err in failing to award interest after a
finding of breach of contract?
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Appellants’ Brief at 4.3
This Court’s standard of review on appeal following a bench trial is well
settled:
Our appellate role in cases arising from non-jury trial verdicts is
to determine whether the findings of the trial court are
supported by competent evidence and whether the trial court
committed error in any application of the law. The findings of
fact of the trial judge must be given the same weight and effect
on appeal as the verdict of a jury. We consider the evidence in a
light most favorable to the verdict winner. We will reverse the
trial court only if its findings of fact are not supported by
competent evidence in the record or if its findings are premised
on an error of law. However, where the issue . . . concerns a
question of law, our scope of review is plenary.
The trial court’s conclusions of law on appeal originating from a
non-jury trial are not binding on an appellate court because it is
the appellate court’s duty to determine if the trial court correctly
applied the law to the facts of the case.
Stephan v. Waldron Electric Heating and Cooling LLC, 100 A.3d 660,
664-665 (Pa. Super. 2014) (citation and quotation omitted). Furthermore,
the trial court, as the finder of fact, is free to believe “all, part[,] or none of
the evidence presented.” Ruthrauff, Inc. v. Ravin, Inc., 914 A.2d 880,
888 (Pa. Super. 2006). “Issues of credibility and conflicts in evidence are for
the trial court to resolve; this Court is not permitted to reexamine the weight
and credibility determinations or substitute our judgment for that of the
factfinder.” Id. (citation and internal quotation marks omitted).
____________________________________________
3
After reviewing Appellants’ Pa.R.A.P. 1925(b) statement, the trial court
entered an order stating that it was relying upon its March 28, 2016 Decision
to address the errors alleged in the 1925(b) statement.
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Appellants first challenge certain of the factual findings of the trial
court. However, the crux of Appellants’ contest is their disagreement with
the trial court’s assessment of the competing experts’ opinions concerning
the feasibility of repairing the patio’s defects. Thus, Appellants essentially
ask this Court to disturb the trial court’s credibility determinations and weigh
the evidence in favor of the inferences that Appellants propose. This we
cannot do. The fact-finder, having heard the witnesses, is entitled to weigh
the evidence and evaluate its credibility. Baehr v. Baehr, 889 A.2d 1240,
1245 (Pa. Super. 2005). As the trial court’s credibility determinations are
supported by the evidence, we discern no abuse of discretion by the trial
court. See Morgante v. Morgante, 119 A.3d 382, 395 (Pa. Super. 2015)
(this Court will not reverse credibility determinations that are supported by
the evidence.).
Similar reasoning limits review of Appellants’ issues four (the trial
court’s calculation of damages under the UTPCPL) and seven (the trial
court’s failure to find Mr. Milanese individually liable under the UTPCPL
“catch-all” provision). First, Appellants contend that the trial court’s decision
on treble damages disregarded the deterrence function and remedial
purpose of the UTPCPL. Appellants’ argument is devoid of merit. There is
no obligation for a trial court to award treble damages. “Our Supreme Court
has recognized that trial courts’ discretion to award treble damages must be
tempered by the facts demonstrated.” Dibish v. Ameriprise Financial,
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Inc., 134 A.3d 1079, 1091 (Pa. Super. 2016) (quoting Schwartz v.
Rockey, 932 A.2d 885, 898 (Pa. 2007)). Here, the trial court expressly
referenced the deterrence factor and found it inapplicable because the
evidence did not demonstrate that Milanese purposely ignored the
manufacturer’s standards for installation of the Cambridge pavers. Trial
Court Decision, 3/28/16, at 21. There was no abuse of the trial court’s
discretion.
The trial court’s decision to relieve Mr. Milanese of personal liability
under the UTPCPL was also premised on a credibility determination. The
trial court found Mr. Milanese’s statements regarding his expertise and
experience were merely puffery not uttered to defraud, rather than
misrepresentations that he held a particular license or certification. Trial
Court Decision, 3/28/16, at 26–27. There was no abuse of discretion in the
trial court’s credibility assessment.
In their second issue, Appellants argue that the trial court erred in
calculating damages in that it awarded neither the reasonable cost of
completion of the project in accordance with the contract “nor the difference
between the value that the product contracted for would have had and the
value of the performance that has been received by [Appellants], if
construction and completion in accordance with the contract would involve
unreasonable economic waste.” Appellants’ Brief at 19. After considering
the testimony of the construction professionals, the trial court concluded
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that a repair of the patio defects was possible for a reasonable cost and that
amount was awarded to Appellants. We affirm the trial court’s damages
assessment based upon its conclusion that “the defective performance of a
building contract [is] often measured by looking to the ‘cost of . . .
correcting the defects by another contractor.’” Order, 7/20/16, at
unnumbered 4 (internal citation omitted). There was no error in the trial
court’s rationale.
Appellants’ third assertion of error is that the trial court improperly
rejected their breach of warranty claim. The trial court dismissed Appellants’
breach of warranty claim because there was no specific warranty provision in
the contract that would support an independent claim for breach of warranty
and that Appellants’ claim in this regard was merely a reiteration of its
breach of contract claim. Trial Court Decision, 3/28/16, at 17. On appeal,
Appellants argue that a specific written provision is not necessary to pursue
a breach of warranty claim and that the evidence that Milanese failed to
follow manufacturer’s recommendations in constructing the patio establishes
their claim for breach of warranty. Appellants do not explain how this
argument differs from that supporting its breach of contract claim;
therefore, the trial court did not err in rejecting the breach of warranty
claim.
Appellants next challenge the trial court’s award of attorneys’ fees in
the amount of $10,556.00 as inadequate given their actual fees of
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$42,225.00. We review for an abuse of discretion. Boehm v. Riversource
Life Insurance Co., 117 A.3d 308, 335 (Pa. Super. 2015). The trial court
reduced the amount of fees awarded to Appellants because their UTPCPL
claim overlapped their breach of contract claim. Trial Court Decision,
3/28/16, at 22. This is an appropriate consideration under Boehm (whether
plaintiff has pursued other theories of recovery in addition to a UTPCPL claim
“should [be] given consideration” in arriving at an appropriate award of
fees.) Id. Therefore, there was no abuse of discretion.
In their sixth issue, Appellants aver that Mr. Milanese is personally
liable under a participation theory. Appellants did not raise liability under
this theory in their Pa.R.A.P. 1925(b) statement. Accordingly, this issue is
waived. See Greater Erie Industrial Development Corp. v. Presque
Isle Downs, Inc., 88 A.3d 222, 223 (Pa. Super. 2014) (“Any issues not
raised in a 1925(b) statement will be deemed waived.”).
Appellants’ final argument is that the trial court erred by failing to
award interest. We affirm the trial court’s decision in this regard based upon
its well-reasoned response to this assertion:
[Appellants] allege that the court erred in not awarding them
interest on their breach of contract damages and request that
the court “modify/mold/change the award to include interest.”
[Appellants’] proposed findings of fact and conclusions of law
which were presented to the court failed to include any
explanation or analysis of [Appellants’] right to an award of
interest. [Appellants] simply asserted as follows at proposed
conclusion of law (7):
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f. Plaintiffs are entitled to recover the following
damages
* * *
iv. Interest in the amount of $ _______.
[Appellants] then, and now, have failed to identify for the
court exactly what type of interest they seek and at what
amount or rate and most important, the justification for such an
award. Although parties to a contract may request pre-or-post
judgment interest, it is not the work of the court to decipher or
guess at the damages sought by a party or the reasons
therefore.
Order, 7/20/16, at unnumbered 5–6. We agree with the trial court that
Appellants failed to proffer a sufficient basis supporting an interest award.
Accordingly, for the above-stated reasons and after careful review of
the parties’ arguments and the certified record, we affirm on the basis of the
trial court’s March 28, 2016 Decision, supplemented by its July 20, 2016
order denying Appellants’ post-trial motion. The parties are directed to
attach copies of those writings to all future filings.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/19/2017
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Circulated 05/17/2017 02:25 PM
ANDREW EVERETT and
ELEANOR EVERETT, hlw,
I IN TIIE COURT OF COMMON PLEAS
CHESTER COUNTY, PENNSYLVANIA
Plaintiffs.
NO. 2013-09683
v.
CIVIL ACTION
MARK MILANESE, Individually and
d/bfa MILANESE REMODELING
and
MILANESE REMODELING, INC.
Defendants.
.~
r: ..,
--~.. :
Jennifer Nash, Esquire, Attorney for the Plaintiffi . ,. . ... - -n
...
Alan A. Jarvis, Esquire. Attorney for the Defendants
', ;
.
.....
-..... '
-· :
DECISION
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·':"
Plaintiffs, Andrew and Eleanor Everett, contracted with Defendant. Milanese
Remodeling, Inc., for the Installation of a patio and outside entertainment area. In their
Second Amended Complaint, Plaintiffs assert claims of breach of contract, breach of
warranty, violations of the Home Improvement Consumer Protection Act and Unfair
Trade Practices and Consumer Protection Law, and for certain misrepresentations by
Defendant, Mark Milanese.
Trial was by the court sitting without a jury. which heard three days of testimony
commencing October 27, 2015. The court requested and received supplemental evidence
concerning the cost of repairing some of the home improvement work at a hearing held
March 21. 2016.
The court finds in favor of Andrew Everett and Eleanor Everett. his wife, in the
amount of $36,423.11.., making the following:
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FINDINGS OF FACT
1. Plaintiffs. Andrew Everett and Eleanor Everett (0Everetts"), husband and
wife. are aduJt individuals with an address of 138 Highland Drive, Coatesville (Valley
Township), Chester Collllty. Pennsylvania.
2. Defendant. Mark Milanese, is an adult individual with a business address
of SO Broad Street, Coatesville. Pennsylvania.
3. Defendant. Milanese Remodeling, Inc. ("Milanese Remodeling"), is a
Pennsylvania corporation with a business address of SO Broad Street, Coatesville,
Pennsylvania.
4. At any and all times relevant hereto, Mark Milanese has been an officer
and employee of Milanese Remodeling. He is currently Vice President of Milanese
Remodeling.
S. Milanese Remodeling has been in existence for flfty-two (52) years and is
engaged in the business of home remodeling and repairs.
6. Plaintiffs reside in a Chester County single family residence that was
purchased in 2011 as a newly constructed home.
7. Shortly after purchasing the home, Plaintiffs decided to make some
changes to the exterior of their home, including, but not limited to the installation of a
large patio, a wet bar. awnings, lighting. a waterfall, a grill, a fire pit, a hot tub area,
walkways/side~ a pizza oven, and a front stoop.
8. They selected Milanese Remodeling as their contractor, which had done
some work previously for the Everetts.
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IJ
9. When Plaintiffs met with Mark Milanese, he represented himself to them
as the "owner" of Milanese Remodeling.
10. Prior to entering into the contracts with the Everetts, Mark Milanese
represented to the Everetts that:
a. Milanese Remodeling was highly qualified and had substantial
experience with projects like theirs;
b. Milanese Remodeling would be doing the work;
c. AU of the materials would be guaranteed and all installation would be
performed in accordance with the manufacturer's recommendations
and specifications.
I I. The discussions between the Everetts and Mark Milanese resulted in the
Everetts deciding that they wanted Milanese Remodeling to construct an interlocking
concrete paver patio with the foregoing accessories in their backyard.
12. Mark Milanese recommended that the Everetts consider Cambridge brand
pavers and accessories.
13. On June 20, 2011, Plaintiffs entered into a written contract with Milanese
Remodeling for the construction, inter alta, of a 25' x 20' Paver Patio with Cambridge
Wet Bar and Motamed Durasol Awnings, a Cambridge Waterfall, a Cambridge Outdoor
Kitchen Grille, a Hot Tub Arca, a Cambridge Fire Pit, and a Paver Walkway from the
Hot Tub Area to the Fire Pit (the "Project"), all in the rear yard of their residence. The
original contract price of the Project was $69,750.00. (See Ex. P-3.)
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14. Over the summer, the Everetts made numerous requests for changes and
additional work to the original scope of work set forth in the contract. (Exhibit P-3.) That
additional work included -
Floor Extensions not included in original contract:
Extensions to original Paver Patio include:
• Approximately 4' x 20' Enlarging Hot Tub Area
• Approximately 4' x 12' Enlarging Grille Arca
• Approximately 10' x 22' "Sundeek" Added to Main Patio
Additipnat New Patios not included in original contract:
• Approximately 4' x 6' Walkway from New .. Sundeck" Patio to
Relocated Fire Pit Arca
• Approximately 12' x 12' New Fire Pit Patio
Walkways not included in original contract:
• From Driveway to Rear Patio
• From Driveway to Front Landing - Including a Semi-Circular Front
Stoop
Walls not included in original conttact:
• Extended Sitting Wall at Hot Tub
• Extended Sitting Walt at Waterfall
• Added Sitting Wall to Surround Fire Pit Patio
Relocation of Patio Accessorig:
• Fire Pit Moved to Beyond Patio
• Grill Moved to Parallel to House Wall
Excavation & Finish Grade Changes:
• Relocation of Rear Yard Swale to Allow for Water Runoff Around
House
• Required Due to Additional Sundeck and Fire Pit Relocation/Enlarged
Patio
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IS. The charge for this additional work was $8,500.00.
16. The initial written contract between the Everetts and Milanese
Remodeling stated "that the installation of your home improvement will be performed in
accordance with an of the individual manufacturer's specifications and
recommendations". (Ex. P-3.)
17. Cambridge adopted the Interlocking Concrete Paver Institute (ICPI)
guidelines and specifications for the installation of their paver products.
18. ICPI issued industry standards for the installation of interlocking pavers.
19. According to ICPI and the manufacturer•s guidelines, a paver system
consists of multiple layers, including the pavers, bedding sand, and sub base. which all are
placed on compacted subgrade (soil).
20. Cambridge and ICPI mandate a minimum base thickness (after
compaction) of 4".
21. Cambridge and ICPI mandate a nominal 1 .. of bedding sand.
22. Neither Mark Milanese nor any other employee of Milanese Remodeling
is a member ofICPI.
23. Mark Milanese attended a half-dozen paver training seminars, including
ICPI training.
24. Mark Milanese: had some familiarity with Cambridge's guidelines.
2S. But Mark Milanese:
a. incorrectly believed that there were no industry standards for the
installation of interlocking concrete pavers;
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b. did not know whether Cambridge recommended that ICPI guidelines
be followed; and
c. did not know what Cambridge or ICPI recommended as the minimum
slope for a patio surface.
26. Milanese Remodeling commenced its work at the Everetts' property on
June 30, 2011 and had substantially completed its work three months later on September
23, 2011.
27. Mark Milanese was at the jobsite every day.
28. During the construction of the paver patio in the rear of the Everett's
house, Andrew Everett was also a frequent visitor to the job site.
29. The contract between the Everetts and Milanese Remodeling did not
disclose the use of subcontractors.
30. Neither Mark Milanese nor Milanese Remodeling ever informed Plaintiffs
that any subcontractors would be used on the Project.
31. Milanese Remodeling engaged Michael White of White Renovations to
construct the hardscaping areas - the paver patio and the fixtures (e.g. Cambridge Wet
Bar, Cambridge Waterfall, Cambridge Outdoor Kitchen Grille, and the Fire Pit).
32. Milanese Remodeling had a 25-year working relationship with White
Renovations.
33. Michael White of White Renovations did all of the contract work except
for the installation of two (2) awnings.
34. Michael White:
a. did not specialize in interlockingconcrete pavers;
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' .
b. did not know what the ICPJ was;
e. could not recall whether or not he used any of the manufacturer's
written materials in perfonning the installation;
d. did not know what the manufacturer recommendations or
specifications were in effect at the time of the Everetts' Project;
e, had no idea whether or not Cambridge had adopted ICPI standards for
the installation of their concrete pavers;
f. did not know if there was a Cambridge handbook regarding
installation of patio pavers;
g. had never seen the Tech Spec 2 from ICPI regarding the installation of
interlocking concrete pavers;
h. believed an appropriate slope for the patio was 1 %;
i. did not know what constituted an acceptable joint width between two
adjacent concrete pavers;
j. did not know how much variance is allowed in joint lines in paver
patios.
3S. Although the Everetts' house was newly constructed and settlement along
the foundation was likely to occur, the Everetts rejected the recommendation of Milanese
Remodeling to construct the paver patio only to within a couple of feet of the foundation.
electing instead to construct the patio right up to the foundation's exterior wall.
36. During the Project. Andrew Everett insisted that the pavers for both the
patio and the walkways, both side and front. not be installed in a "Random" pattern, as
shown in the Cambridge instructions (Ex. p.12). but that they instead be laid as delivered
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to the site on their skids, even though the laying of the pavers in this fashion resulted in
lengthy straight lines between sections of pavers,
37. Andrew Everett picked up the subbase material that was used in the
Project. He made two such deliveries of the subbase, and testified that on each such
occasion he delivered twenty-three (23) tons of material, for a total of forty-six {46) tons.
However, Everett also said that one load was of(31) tons of material.
38. This subbase material was 2A. modified, crushed concrete.
39. The area of the original patio was compacted by the excavating contractor
who built the Everett house. Michael White compacted all additional areas.
40. After soil compaction, the sub base of 2A modified was installed and then
compacted. One inch ( l 'j of bedding sand was then added over the subbase and
compacted, after which the pavers and edge restraints were added. According to Mark
Milanese, polymeric sand was then placed between the pavers, that hardens like concrete.
These procedures generally followed the instructions of Cambridge and ICPI Tech Spec
No. 2. (Ex. P-13.)
41. Andrew Everett installed additional edgers in several locations. or bad
someone install them for him.
42. To installthe additional concrete edgers that appear most prominently in
Exhibit "P-5," Photo 14. surrounding a landscape bed, Everett bad to remove edge
restraints that had been placed there by Milanese Remodeling which serve to hold the
pavers in place. These concrete edgers slowed the drainage off the patio.
43. Toward the end of Milanese Remodeling's work, Andrew Everett planted
hundreds of flowers and other plants, both in the garden beds along the patio and the
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mulched area adjacent to the walks. The plants were delivered to the Project in pots. In
digging the holes for the plants, Andrew Everett failed to remove the soil from the holes,
electing instead to spread it around the beds, thereby increasing soil elevations in those
beds to a point where, in certain areas, they exceeded the elevation of the adjoining
pavers and created barriers to drainage.
44. During construction and afterwards, Milanese Remodeling was attentive
to the callbacks by the Everetts, replacing a stainless steel sink, fixing and changing lights
in the awning and repairing a conveyor belt. for example.
45. In the summer of 2011, the Everetts began to notice other problems with
their outdoor Project, including:
a. Drainage problems and puddling;
b. Sinking of patio pavers, panicularly by the foundation wall of the
house;
e. Problems with the front stoop pavcrs; and
d. Uneven walking surfaces.
46. Milanese Remodeling put more sand under some pavers, which was not
effective.
4 7. Milanese Remodeling also attempted repairs by excavating at the
foundation of the Everetts' home, and backfilling to grade.
48. In February of 2012, nearly five (S) months after the completion of the
original contract and extras, and while the Everetts were on vacation in Mexico, Andrew
Everett telephoned Milanese Remodeling and spoke with Mark Milanese. In that
conversation, be told Mr. Milanese that the resort at which he was staying had an outdoor
pizza oven and that he wanted one to be added to his patio.
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49. Milanese Remodeling found that Cambridge made a Pizza Oven Kit and
agreed to install it for the Everetts.
50. Michael White constructed the Pizza Oven with the Cambridge Kit, and
the Everetts paid to Milanese Remodeling $13,500.00 for such construction.
SI. In the July/August 2012 edition of Chester County Life, some ten (10)
months after the installation of the paver patio and accessories, and approximately three
(3) to four (4) months after the installation of the Cambridge Pizza Oven, Andrew Everett
was quoted as follows:
"It all started in Mexico while vacationing," smiles Andrew. "I
called Mark from a restaurant and told him I had to have a pizza
oven. That, however. is only part of the project. We have a
hardscaped patio with built-in seating. wet bar, and grill.
There's a fire pit and waterfall that changes color and a lighted
Gcnnius retractable awning as well as a baby Gennius that
covers the hot tub. I'm thrilled. I walk out to the back yard and
it's a paradise come true. thanks to Milanese Remodeling."
(See Ex. D-13.}
52. Around August 13, 2013, almost two (2) years after the completion of the
original Project. Andrew Everett called to complain that his patio was puddling.
53. On August 16, 2013, Mark Milanese visited the Everett home after a
major 6.6" rain event that had closed a number of roads. His visit was the day after the
rainfall. He observed no puddling that next day. The patio was "bone dry".
54. A further meeting was arranged for August 19, 2013. Mark Milanese was
accompanied by Michael White of White Renovations and Glenn Tague, representative
of Cambridge Pavers, Inc. Andrew Everett expressed his unhappiness about the subbase
under the patio. He wanted to know whether Milanese Remodeling wou]d address the
comer where the construction met the foundation of the house. which had sagged again.
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40
---· I
SS. Mark Milanese indicated that he would do so. but requested a punchlist so
that he could address any remaining problems at one time.
56. Mr. Everett then revealed that he had already secured a proposal to
completely remove and replace the entire patio and accessories, that there would be no
punchlist and that defendants were prohibited from returning to the jobsite to address any
of the alleged problems. Everett infonned Mark Milanese that a letter from Everett's
attorney would be forthcoming.
51. On or about October 3, 2013, the Everetts filed this action.
58. At trial, Plaintiffs called Bart Shippee, P.E. in support of their claims. He
was duly qualified as a gee-technical engineer with considerable experience in hardscape
design, including patio pavers, soils and related subjects.
59. Mr. Shippee testified about industry standards, and was familiar with the
ICPI, with manufacturer's specifications and recommendations, and with municipal
building codes.
60. He noted that Cambridge had adopted ICPI guidelines for the installation
of interlocking pavcrs.
61. Mr. Shippee visited the construction site, inspected it, measured it and
sketched it. He also removed some pavers to observe the base, and dug several test pits.
Mr. Shippee issued a report which was admitted into evidence without objection. (Ex. P-
10.)
62. Mr. Shippee testified th.at in order to properly install interlocking pavers,
one must remove all topsoil and grass and excavate down to a subgrade sufficient enough
11
41
to add four (4) to six (6) inches of PennDOT 2A crushed stone (after compaction), and an
inch of bedding sand onto which the pavers are placed.
63. Compaction is to be to 98% of density.
64. Mr. Shippee found that PennDOT 2A was not used as a subbase and what
was used was determined later to be 2A modified crushed concrete, installed in various
depths; in one case he found only one and one-half inches (1 Ya"} of subbase material.
The bedding sand was also found to be in uneven amounts in the various test holes.
65. This evidence indicated that the manufacturer's specifications and
recommendations were not followed.
66. Mr. Shippee identified as "the most significant issue" the fact that the
patio was installed at an elevation too close to the siding of the house.
67, He maintained under the relevant building code that there needs to be six
(6) inches of clearance between the siding and/or wood framing of a house to the ground
surface.
68. Mr. Shippee determined that in the case of the Everett house the distance
between the siding and ground surface is between one (1) and two (2) inches. a situation
whereby the house could experience water damage and insect infestation.
69. Mr. Shlppee's recommendation was to completely tear out the patio and
reinstall it.
70. Plaintiffs' contractor estimator. Glen Clarke, who is associated with
Pickering Valley Landscape, Inc •• estimated the cost to do this would be $99.600. (Ex. P-
2.)
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42
71. On ceoss-examlnaticn, Mr. Shippee testified that to correct a number or
problems would not be expensive. For example, to fix the fire pit would take three (3)
hours and some adhesive. The "lippage" evident in some of the photos could be rectified
by taking out and resetting the pavers,
72. This testimony agreed with that offered by the Defendants' expert,
Michael Mesko, P.E., who described the various problems as "simple to fix,"
73. For example, the comer of the house closest to the wall where the pavers
were again sagging he attributed in part to water intrusion from the adjacent downspout.
Mr. Mesko stated that to fix it one would remove the pavers, excavate to the subbase, set
a level, compact the base and reinstall the block.
74. As to the closeness of the patio surface to the house and its siding, that can
be fixed, he stated, by taking up the pavers and adding plastic, AZEK or wraps.
75. This essentially installs weatherproofing when in place and, following
compaction, fixes the problem without removing the: entire patio. He priced the materials
needed at $200, plus labor.
76. Mr. Mesko attributed the sluggish drainage to the fact that there were
raised garden beds adjacent to the patios and walkways; the height of these beds needed
"remediation".
77. Mr. Mesko testified that the slope of the patio was adequate.
78. The experts for the Everetts identified seventeen (17) areas of defective
construction.
79. The seventeen (17) claims, with the court's disposition on them, follow:
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Allowance
1 The rear patio is installed at an improper Disallowed
elevation that is too close to the siding of the
house.
2 The landscaping bed adjacent to the morning Disallowed
room area is above grade.
3 The fire pit is not secured by adhesive. Allow 4 hours1 +
$30 in materials =
$178
4 Lippage/tripping hazard - back landing area. Allow $200 labor+
$110 in materials III
$310
5 Lippage/tripping hazard - multiple pavers Allow $220 in labor +
around awning footer near pizza oven. $150 in materials =
$370
6 Lippage/tripping hazard - multiple pavers Allow $220 in labor+
around awning footer near wet bar. $1 SO in materials •
$370
7 Lippage/tripping hazard- multiple pavers Allow $220 in labor+
near grill. $150 in materials=
$370
8 Lippage/tripping hazard - second area of Allow $220 in labor+
pavers near grill. S 150 materials s
$370
9 Uppage/tripping hazard - where asphalt Disallowed
meets paver surfaces.
10 Front stoop/half circle $880 in labor+ s t SO
in materials= $1,030
ll Fire pit area Allow 20 hours
($740) + $1,000 in
materials - $1,740
1The parties agreed that a rate ofS37.00/hour would be a reasonable labor charge.
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12 Half circle in rear patio area lacks proper Allow $880 labor+
drainage. $110 materials= $990
13 Front walkway lacks proper provisions for Disallowed
water runoff/drainage.
14 Patio section near hot tub Jacks proper
provisions for water runoff/drainage. DisalJowed
ts Wet bar installed incorrectly. Allow $9,500
16 Grill installed incorrectly. Disallowed
17 Sinking scctions/pavers along rear of house. Allow $800 labor+
$200 in materials>
$1,000
Total 516,228.00
DISCUSSION
Breach of Contract (Count I) and Breach of Warranty (Count Ill) -
Milanese RemodeUng .
Counts I and Ill of Plaintiffs' complaint are for breach of the contractual promises
made by Milanese Remodeling to Plaintiffs.
In or about June, 2011, PJaintiffs entered into a written contract with Milanese
Remodeling (Ex. P-3. $69,750), as welt as two verbal agreements for additional
hardscaping ($8,500) and the installation of a pizza oven ($13,500). The Project's total
cost was $91,750.00, which the Everetts paid Milanese Remodeling as per the contracts.
The initial written contract between the Everetts and Milanese Remodeling states that
the installation of your home improvement will be performed in
accordance with aU of the individual manufacturer's specifications
and recommendations.
(Ex. P-3.)
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45
Plaintiffs demonstrated at trial that the installation of the patio, as contracted for.
did not take place.
As set forth in the court's Findings of Fact, supra, the contract called for the use
of pavers manufactured by Cambridge. Cambridge had adopted the Interlocking
Concrete Paver Institute (ICPI) guidelines and specifications for the instaIJation of their
products. There was no evidence that Milanese Remodeling reviewed or examined the
manufacturer's guidelines and recommendations. In fact, the evidence was clear that
Milanese Remodeling was not familiar with these industry standards and therefore could
not have implemented them when constructing Plaintiffs' patio. Thus, Milanese
Remodeling failed to perform the contract as promised and breached the parties'
agreement.
A party whose contract has been breached is entitled to recover the damages
incurred as a result of such breach. The proper measure of damages in an action for
breach of a construction contract is found in Section 346 of the Restatement (First) of
Contracts, adopted as the law in Pennsylvania, which provides:
(1) For a breach by one who bas contracted to construct a specified
product, the other party, can get judgment for compensatory
damages for all unavoidable harm that the builder had reason to
foresee when the contract was made, less such part of the contract
price as has not been paid and is not still payable, determined as
follows:
(a) For defective or unfinished construction he can get judgment
for either
(i) the reasonable cost of construction and completion in
accordance with the contract, if this is possible and does not
involve unreasonable economic waste; or
(ii) the difference between the value that the product contracted for
would have bad and the value of the performance that has been
received by the plaintiff; if construction and completion in
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46
accordance with the contract would involve unreasonable
economic waste.
See Gadbois \I. Leb-Co Builder, Inc; 312 Pa. Super. 144, 458 A.2d SSS (1983).
Plaintiffs did not get what they contracted and paid Milanese Remodeling for - a
patio with Cambridge pavers installed according to manufacturer and industry standards.
Although not built to specifications, the damage that resulted from this conduct is only a
somewhat defective patio area. The court found credible Defendants' expert testimony
regarding the availability of appropriate and adequate ways to repair these defects which
do not require starting the Project over again. To sanction the complete removal and re·
do of the entire Project would result in the unreasonable economic waste the law seeks to
avoid. The damage to Plaintiffs is the amount necessary to fix the defective aspects of
the patio so that they are left with a properly working patio. The cost for such repairs
totals $16,218.00.
As for Plaintiffs' count for breach of express warranty, there is no specific
warranty provision in the contract that would support an independent claim for breach of
warranty. The same contractual provisions that provide support for Plaintiffs' breach of
contract claim are offered as the sole support for their breach of wammty claim.
Plaintiffs, breach of warranty claim is nothing more than a reiteration of their breach of
contract clalm, which the court already has determined to be a valid one.
l.ITPCPL1.Count ID- Milanese Remodeling
Plaintiffs allege in Count II of their complaint that Milanese: Remodeling's
conduct violated the tITPCPL. According to Plaintiffs, Milanese Remodeling's
representations that the goods it used were "warranted and guaranteed" and that all
installations would be "performed in accordance with the manufacturer's specifications
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47
and recommendations and in accordance with industry standards" amount to unfair and
deceptive conduct as defined by the UTPCPL (Campi. at fl 16-20.) The court agrees in
part.
Conduct that is unfair and deceptive, and thus actionable. under the UTPCPL
includes:
i, Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits, or
quantities that they do not have or that a person bas a
sponsorship, approval. status, affiliation or connection that he
does not have;
ii. Representing that goods or services are of a particular standard,
quality or grade;
m. Making repairs, improvement or replacements on tangible, real
or personal property, of a nature or quality inferior to or below
the standard of that agreed to in writing; and
iv. Engaging in any other fraudulent conduct which creates a
likelihood of confusion or of misunderstanding.
73 P.S. §201·2, §201-3.
Milanese Remodeling agreed to construct Plaintiffs' patio using products installed
in accordance with the manufacturer's specifications and recommendations. The
evidence was clear. however, that it made no attempt to discern what those standards
were for the selected Cambridge pavers. Although Milanese Remodeling did have a
general sense of how to install interlocking pavers, it did not utilize the specific
manufacturer's guidelines and recommendations. The improvements made to Plaintiffs'
property fell below the standard of that agreed to in the parties' written contract.
Milanese Rernodeling's conduct violated the UTPCPL and Plaintiffs are entitled to
recover the losses they sustained as a result of this misconduct as discussed below.
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48
Plaintiffs also contend that Milanese Remodeling violated the Home
Improvement Consumer Protection Act (HICPA), 73 P.S. §517.1 et. seq., by failing to
disclose the use of sub-contractors on the Project, which in tum is a per se UTPCPL
violation. Plaintiffs argue that had Milanese Remodeling advised them of the use of
subcontractors they would not have engaged the company for their Project.
Plaintiffs, however. fail to identify which provision of HICPA such an omission
violates. Having reviewed the entirety of IDCPA•s provisions, there is only one which
arguably deals with this type of alleged misconduct. Section 517.7 states that no home
improvement contract shall be valid or enforceable against an owner unless it:
(10) Includes the names, addresses and telephone numbers of all
subcontractors on the project known at the date of signing the contract.
73 P.S. §517.7(a)(l0).
This provision. however, addresses those situations where conduct by a contractor
will invalidate a contract. Specifically, Section S17.7(a) speaks about enforceable and
valid home improvement contracts and provides that in order for a contract to be
enforceable and valid against an owner it must comply with the thirteen clauses of
subsection (a). A contractor's failure to adhere to Section 517.7(a) simply renders the
home improvement contract void and unenforceable against the owner. Schafer Electric
& Constr. v. Mantra. 626 Pa. 258, 96 A.3d 989 {2014). Plaintiffs have failed to establish
a HICPA violation in this case and necessarily their Ul'PCPL claim based upon any
alleged material omissions.
Turning to the damages suffered by Plaintiffs as a result of the actionable
conduct. Plaintiffs under the UTPCPL arc entitled to the following:
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Any person who purchases or leases goods or services primarily
for personal, family or household purposes and thereby suffers any
ascertainable loss of money or property, real or personal, as a
result of the use or employment by any person of a method, act or
practice declared unlawful by section 3 of this act, may bring a
private action to recovery actual damages or one hundred dollars
($ 100), whichever is greater. The court may, in its discretion,
award up to three times the actual damages sustained, but not less
than one hundred dollars ($ 100), and may provide such additional
relief as it deems necessary or proper, The court may award to the
plaintiff, in addition to the relief provided in this section, costs and
reasonable attorney fees.
73 P.S. § 201-9.2 (emphasis added).
The UfPCPL does not provide any standard pursuant to which a trial court may
award treble damages. Courts should consider "the presence of intentional or reckless,
wrongful conduct, as to which an award of treble damages would be consistent with, and
in furtherance of, the remedial purposes of lhe trrPCPL." Schwartz v. Rockey, 593 Pa.
S36, 557, 932 A.2d 885, 898 (2007). In order to recover damages under the tITPCPL.
however, a plaintiff must demonstrate an "ascertainable loss as a result of the defendant's
prohibited action." Weinberg v. Sun Co., Inc., 565 Pa. 612. 618, 777 A.2d 442, 446
(2001) (emphasis in original). Furthermore,
[t]he determination of damages is a factual question to be decided
by the fact-finder. The fact-finder must assess the testimony, by
weighing the evidence and determining its credibility, and by
accepting or rejecting the estimates of the damages given by the
witnesses. Although the fact[·]finder may not render a verdict
based on sheer conjecture or guesswork, it may use a measure of
speculation in estimating damages. The fact-finder may make a
just and reasonable estimate of the damage based on relevant data,
end in such circumstances may act on probable, inferential, as well
as direct and positive proof.
Penn Elec. Supply Co., Inc. v. Billows Elec. Supply Co., Inc; 364 Pa. Super. 544, S49,
528 A.2d 643, 644 (1987) (internal citations omitted).
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50
Plaintiffs allege that Milanese Remodeling's failure to construct the patio as
promised resulted in their payment for services they did not receive. As discussed above,
the loss to Plaintiffs that resulted from this conduct is a somewhat defective patio area.
but one which can be repaired. The court has awarded the cost of such repairs to
Plaintiffs under their breach of contract cf aims. See Boehm v. Riversaurce Life Insur.;
.117 A.3d 308 (Pa. Super. 201S)(affinning trial court's ability to reject either party's
damages calculations and make its own reasonable estimate of damages based on the
evidence and conclusion to award damages based upon amount necessary to place the
contracting party in the position they would have been in if the bargain bad been
honored).
The court does not, however, view this case as one involving the type of fraud for
which deterrence is required. This case is a simple breach of contract. The evidence did
not show that that Milanese Remodeling knew of the Cambridge paver standards and
purposefully chose to ignore them or that it had no intention of folJowing those standards
when it contracted with Plaintiffs. Rather, Milanese Remodeling thought it knew how to
work with such pavers, when in fact it did not. Based upon the facts as presented and the
testimony of Mr. Milanese, the court concludes that treble damages arc not warranted or
necessary in this case to further the goal of the 1ITPCPL.
As for their right under the UTPCPL to recover attorneys' fees, the following
factors should be considered when assessing the reasonableness of counsel fees:
(1) The time and labor required, the novelty and difficulty of the
questions involved and the skill requisite properly to conduct the
case; (2) The customary charges of the members of the bar for
similar services; (3) The amount involved in the controversy and
the benefits resulting to the clients from the services; and (4) The
contingency or certainty of the compensation.
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--.--.
Sewak v. Lockhart, 699 A.2d 7SS, 762 (Pa. Super. 1997).
Moreover, there should be "a sense of proportionality between an award of
damages [under the UTPCPL] and an award of attorney's fees," and a consideration of
whether plaintiff has pursued other theories of recovery in addition to a UTPCPL claim
when arriving at an appropriate award of fees. Id.
Plaintiffs submitted evidence of counsel fees which totaled $42,225.00. Plaintiffs
then reduced trust total amount by twenty-percent (20%) for fees they attributed to non-
UTPCPL claims, thus making $33,780 the total amount of fees requested by them.
Plaintiffs also request an award of costs totaling $9,638.86.
The claims prosecuted by counsel for breach of contract and the UTPCPL arc
practically identical. Both claims are based upon the same promises, the same facts, the
same standards and the same proof was offered to support each claim. Although
Plaintiffs reduced their fee request by 20% to account for this overlap. the reduction
should have been more in the court's view. The court awards Plaintiffs attorneys' fees
inthe amount of $10,556.25 and costs totaling $9 .638.86.
Misrepresentation (Count IV) and Ul"PCPL (Count V) - Mark Milanese,
Individually.
Plaintiffs assert two causes of action against Mark Milanese, individually. based
upon alleged misrepresentations he made to Plaintiffs: a tort claim • Misrepresentation
(Count IV) • and a statutory claim - violation of the urPCPL (Count V). Both claims
center upon the alleged statements by Mr. Milanese that:
• he "would perform the [subject] work in accordance with
the manufacturer•s specifications" (Comp!. at Pl) and;
• he "was an expert in the field of pavcrs and exterior
improvements and had substantial experience in projects
such as plaintiffs." (Compl. at 130.)
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52
Platntiffs' Misrepresentation Claims Against Mr. Milanese Fail
Mr. Milanese argued in his post-trial submissions to the court, that Plaintiffs' tort
claim for misrepresentation is barred by the "gist of the action" doctrine. According to
Defendant, 1his case is nothing more than a case involving the non-performance or
defective performance of a contract and thus may only proceed as a breach of contract
action. The court agrees with Defendant on this issue, but only as to one of the alleged
misrepresentations.
The "gist of the action" doctrine is designed to maintain the conceptual distinction
between breach of contract claims and tort claims. The doctrine precludes Plaintiffs from
re-casting ordinary breach of contract claims into tort claims and is employed to ensure
that a party does not bring a tort claim for what is, in actuality, a claim for a breach of
contract," Bruno v. Erie Insur. Co; 106 A.3d 48, 60 (Pa. 2014).
In Bruno v. Erie Insur. Co., the Supreme Court examined this doctrine at length.
The homeowner plaintiffs in Bruno were insureds under a homeowner' s policy issued by
Brie Insurance Company ("Eric''). 106 A.3d 48, 51 (Pa. 2014). During renovations of
their home, the Brunos notified Erie that they had discovered mold in their basement. In
response, Erie sent an adjuster and engineer to the home to investigate the ciaim. During
their examination at the home, the Bnmos claimed that the adjuster and engineer told Mr.
Bruno that the mold was harmless and there were no valid health concerns associated
with mold. Id Eventually, the Brunos began to suffer physical problems. Mrs. Bruno
later was diagnosed with throat cancer, which her physicians attributed to toxic mold. Id
The Brunos filed a complaint against Erie, its engineer and the prior homeowners.
As to Erie, the Brunos asserted that it had engaged in numerous negligent acts and
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53
omissions including a failure to recognize the mold problem. misleading the Brunos
about the nature of the mold problem and minimizing the dangers of the known mold
problem when it knew or should have known otherwise. The trial court sustained Erie's
preliminary objections in the nature of a demurrer based upon the gist of the action
doctrine. The Superior Court on appeal affirmed the trial court's dismissal of the Bnmo's
negligence claim against Erie. An interlocutory appeal to the Supreme Court then
followed.
After a detailed history of the development of the gist of the action doctrine inthis
Commonwealth, the Supreme Court set forth what it called the "touchstone standard" for
ascertaining the true gist or gravamen of a claim pied by a plaintiff in a civil complaint:
what is the ''nature of the duty alleged to have been breached?" The Court reasoned as
follows:
"If the facts of a particuJar claim establish that the duty breached is
one created by the parties by the tcnns 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
(citations omitted). If however. the facts establish that the claim
involves the 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 ..•
Applying these standards to the facts in this ease, the court concludes that
Plaintiffs' misrepresentation claim based upon statements that Milanese Remodeling
would perform the {subject] work in accordance with the manufacturer's specifications is
nothing more than a reiteration of the breach of contract claim and therefore is barred by
the gist of the action doctrine. The contract between the parties states that Milanese
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54
. ·-·----------------y-----,
Remodeling will "properly install" the various products at issue. Plaintiffs' .so-ealled
misrepresentation claim is based upon misrepresentations/statements that were
memorialized in the contract, and such terms were then breached. The success of this
claim is thus wholly dependent on the contract and is barred by the: gist of the action
doctrine.
In contrast, Plaintiffs' misrepresentation claim based upon the statements that Mr.
Milanese was an "expert in the field of pavers" and had "substantial experience in
projects such as the plaintiffs" is not barred by the "gist of the action" doctrine. Unlike
the statements above regarding Milanese Remodeling's performance of the Project. the
alleged misrepresentations above regarding Milanese's skill and experience of Milanese
are not wholly dependent on the contract. Plaintiffs' tort claim based on these alleged
statements is thus permissible.
Whether or not these statements amount to actionable misrepresentations is
another story. In order to succeed on a claim for misrepresentation, a party must show
the following: (1) a representation; (2) which is material to the transaction at hand; (3)
made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on it; (S) justifiabte reliance on the
misrepresentation; and (6) the resulting injury was proximately caused by the reliance.
Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 {1994}, citing, Restatement (Second)
of Torts § S2S (1977). The evidence in the record does not support a finding that the
elements of a successful misrepresentation claim are present here.
First, Mr. Mitanese's statements that he was "expert in the field of pavers" and
bad "substantial experience in projects such as the plaintiffs" arc not actionable
2S
55
. .. -------~-
representations of fact. In the sales world, such statements ~ount to nothing more than
"sales talk" or "puffmg." a term that implies simply an exaggerated claim of superiority
of a product rather than a statement of fact See Castro! Inc. v. Pennzoil Co., 987 F.2d
939 (3d. Cir. 1993)(discussing puffing in context of consumer statute, the Lanham Act);
Gul/Oil Corp. v. F.rC, 150 F.2d 106, 109 (5th Cir.1945)). There is no objective test for
determining whether or not one is an "expert" or possesses "substantial experience."
Thus. just one job that took alt summer could conceivably make a contractor an "expert".
Mr. Milanese made no other specific representations when he used these statements; he
did not represent that he held a particular license, degree or certification. Mr. Milanese's
statements were simply a claim regarding the superiority of his product - his
workmanship and skill. The court does not view these statements as representations of
fact supportive of a misrepresentation claim. See Huddleston v. Infertility Clinic of
America, Inc., 700 A.2d 453 (Pa. Super. 1997Xaffinning trial court conclusion that
representations that one is a "premier" company is not sufficient to support an intent to
induce by misrepresentation; representations regarding the quality of the program
amounted to mere "puffing," rather than fraud); see also Breckenridge v Cambridge
Homes, 622 N.E.2d 1201 (1993)(holding statements by home builder to home purchaser,
that home would be built with "expert workmanship" and "custom quality," that home
would be "perfect," and that home would have quality similar to that of models purchaser
saw, were "puffing" that did not did not violate state deceptive trade practices act.)
Second, the record docs not demonstrate that Mr. Milanese intended to mislead
the Everetts when he made the statements about which they now complain. Mr. Milanese
had 35 years of construction experience. He also had completed other home
26
56
improvement projects involving pavers. In his view. he was an expert and after years in
the construction industry he had developed "substantial" experience with patios and
similar projects. Mr. Milanese did not make these statements to mislead the Everetts or
induce them into hiring him for the Project He believed these statements to be true and
accurate. Having previously been hired by the Everetts and by Mr. Everett's mother for
another project, there was no need for him to misrepresent his abilities in order to prove
himself or win a job.
Finally, even if the elements of a misrepresentation claim were present here. the
court concludes that the final showing required by Plaintiffs, that they justifiably relied
on these statements, has not been made. Although a plaintiff is not barred from recovery
because he could have discovered the falsity of a statement by investigating its truth, he
nonetheless cannot recover if he blindly relies upon a misrepresentation the falsity of
which would be patent if he had used his opportunity to make a cursory examination or
investigation. Drelles v. Manufacturer's Life Ins. Co., 881 A.2d 822, 840 (Pa. Super.
2005). A statement by a vendor that he or she is an "expert" or has ..substantial
experience" indicates very little to a consumer. Anyone with multiple experiences or
years in a particular field could properly claim the same. For this very reason, consumers
follow up on such statements with requests for referrals. questions regarding the number
of specific jobs and so on. Consumers, such as the Everetts. who simply accept such
sweeping statements as representations of fact with nothing more are not thereafter
justified in relying upon those statements when selecting a contractor.
27
57
. . - -· ----------------,..----,
Plaintiffs• UTPCPL Claims Against Mark Milanese Fail
The same alleged misrepresentations discussed above also serve as the basis for
Plaintiffs' UTPCPL claim against Mark Milanese. (Compl. at 139.) Although they did
not identify a specific provision of the UTPCPL that Mr. Milanese allegedly violated. the
court assumes that Plaintiffs, by their incorporation language, arc claiming that Mr.
Milanese violated the same UTPCPL provisions as his company.
For the same reasons discussed above with regard to the misrepresentation count
against Mr. Milanese, this claim too must fail. Mr. Milanese did not claim to have a
certain engineering license or certification that he did not have nor did be attach a certain
grade or particular rating to his goods. Furthermore, Plaintiffs did not demonstrate that
they were justified in relying on such statements. There was nothing unfair or deceptive
about Mr. Milanesc•s statements.
CONCLUSIONS OF LAW
I. Plaintiffs entered into a written contract with Milanese Remodeling for the
construction of a patio and related areas.
2. Milanese Remodeling breached the contract by failing to pcrfonn the
contract in accordance with its written terms,
3. Milanese Remodeling's breach resulted in Plaintiffs receiving a somewhat
defective patio.
4. Plaintiffs' damages resulting from Milanese: Remodeling's breach of
contract is the cost to repair the patio, which totals $16,228.00.
S. Milanese Remodeling did not breath an express warranty.
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6. Milanese Remodeling violated Section 201·2(4)(:xvi) of the UTPCPL by
making improvements that fell below the standard of that agreed to in writing.
7. Milanese Remodeling did not violate ffiCPA.
8. Plaintiffs' ascertainable loss as the result of Milanese Remodellng's
UTPCPL violation is the cost to repair the somewhat defective patio, which totals
$16,.228.00.
9. Plaintiffs' arc entitled to attorneys' fees totaling $10,556.25 and costs
totaling $9,638.86 for Milanese Remodeling's UTPCPL violation.
10. Mark Milanese did not make any misrepresentations to Plaintiffs.
11. Mark Milanese did not violate the UTPCPL.
An appropriate order follows.
BYTIIBCOURT:
Date: March 28, 2016
Mark L. Tunnell, J,
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59
ANDREW EVERE1T and IN THE COURT OF COMMON PLEAS
ELEANOR EVEREIT. hlw. CHESTER COUNTY.PENNSYLVANIA
Plaintiffs,
NO. 2013-09683
v.
CIVIL ACTION
MARK MILANESE, Individually and ...e ~
dfo/a MILANESE REMODELING
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MILANESE REMODELING, INC.
Defendants.
Jennifer Nash, Esquire, Atrorney for the Plaintiffs
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Alan A. Jarvis, Esquire, Attorney for the Defendants
ORDER AWARDING AND CONFORMING DAMAGES
AND NOW, this 28th day of March, 2016, for reasons set forth in its Decision. the
court finds in favor of plaintiffs, Andrew and Eleanor Everett. and against defendant.
Milanese Remodeling, Inc .• on Count I (Breach of Contract) and Count II (UTPCPL) and
awards the following:
Amount Awarded as Damages s 16,228.00
Attorneys' fees S 10,556.25
Costs S 9.§38.86
Total s 36.423.11
The court fmds in favor of defendants on all of Plaintiffs' remaining counts.
BY 1HE COURT:
Mark L. Tunnell, 1.
60
ANDREW EVEREIT and '!
ELEANOR EVEREIT, h/w,
Plaintiffs, J
v.
NO. 2013-09683
MARK MILANESE, Individually
and d/b/a MILANESE
REMODELING
I CIVIL ACTlON
and I
I
i
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MILANESE REMODELING. INC.
Defendants. ,
I
Jennifer Nash, Esquire, Attorney for the Plaintiffs
Alan A. Jarvis, Esquire, Attorney for the Defendants
ORDER
AND NOW, this 20111 day of July, 20]6, upon consideration ofplaintifrs Post·
trial Motion, defendants' response thereto, and following oral argument held Jury 14,
2016, it is hereby ORDERED that the motion is DENIED1•
BY 1lIB COURT:
Mark L. Tunnell, J.
I
On March 28, 2016, after four (4) days of hearings, the court entered an Order in
plaintiffs' favor on their breach of contract and Unfair Trade Practice Consumer
Protection Law ("UTPCPL10) claims and awarded them $36,423.11 in damages in this
case, which arises out of a defective patio project. Plaintiffs' post-trial motion seeks to
have the court re-visit alt of the evidence it heard and thoroughly considered when it
issued its twenty-nine (29) page Decision and Order, find in their favor on all counts and
award them damages in the full amount requested. For the reasons set forth below, the
court denies plaintiffs' request.
2013-09683-~
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Plaintiffst Challen2es to the Court's Factual Findings
Plaintiffs allege that the court erred when it "abused its discretion in making, or
failing to make, multiple findings of fact." (Pis' Mem. in Support of Post-trial Mot., at
2.)
Findings of Fact Made by the Court
Plaintiffs identify thirteen (13) alleged instances where the court's fmdings
(hereinafter ''FOF") were "not based upon competent evidence, were manifestly
erroneous, arbitrary, capricious and/or flagrantly contrary to the evidence," (ld.)
Plaintiffs first challenge the court's findings at FOP 23 and 24 with regard to
Mark Milanese's training in the installation of the type of concrete pavers used in this
construction project. According to plaintiffs, contrary to the court's finding, "Milanese
had never been to an ICPI training seminar .... " (Id. at 2.) However, that is not what the
court found As plaintiffs' memorandum acknowledges, the court's finding on this issue
(FOF 23) was that ..Milanese attended a half-dozen paver training seminars, including
ICPI training," not that he had attended specific ICPI training. The record supports the
court's finding. (N.T., J0/29/15, at 71-72.)
Furthermore, even though the court found that Milanese had some familiarity with
concrete pavers, no harm was suffered by plaintiffs if in fact this was in error. The court
still ruled in plaintiffs' favor on their contract claim. Plaintiffs' assertion at oral
argument that a different finding would have altered the court's decision on their
misrepresentation claim is without merit. The court found in favor of defendant Milanese
on the misrepresentation claim based upon the legal principles of ..gist of the action" and
"puff mg." Thus, this specific finding of fact bad no bearing on the outcome of that claim.
Plaintiffs next challenge FOF 40, which details the court's findings regarding the
patio's sub-base. They claim there is no record evidence for this finding. In support of
their challenge, plaintiffs highlight those portions of the court's Decision where it
acknowledges that ICPI standards were not followed by defendants. However, these two
findings are not mutually exclusive. Although the court concluded that the contract had
been breached, it also concluded based upon the record that Milanese Remodeling
generally followed industry standards. For example, the evidence demonstrated that five
and one-half inches ofmodified2A was installed as a sub-base (N.T., 10/28115, at 115)
and was tamped down (Id., at 61). One inch of pipe and one inch of sand was then laid
down, with proper compaction. (Id., at 62, 100, 112.)
Similarly, there was sufficient evidence in the record to support the court's
findings reached in FOF 41 and 42 regarding Andrew Everett's involvement with the
placernentofedgers around the patio. (See e.g., N.T., 10/28/16, at S4: 11. 22·24, 63, 64.)
Andrew Everett conceded that he had put in edgers for a dog walk. (N.T., 10/27/15, at
85-86; 10/28!15, at 70.) This testimony was consistent with that ofMilanese's worker
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who testified that they "didn't install all the edgers." The testimony at trial also
d~onstrated that Mr. Everett was very involved in this project day by day. At least one
witness testified that when workers returned to the project site each day "there were
edgers installed every day. something was different." (N.T., 10/28/15, at 53; see also.
N.T., 10/28/15, at 70-75, 88, 166.)
As for FOF 43, plaintiffs simply disagree with the court's finding regarding the
effect of plantings on the patio's drainage. The court stated at FOF 43 that Andrew
Everett alone planted vegetation that impacted the patio's drainage. Plaintiffs do not
deny that this is true. Rather, plaintiffs challenge this finding by arguing that "defendants
also participated in the planting of vegetation." (Pis.' Mem., at 4 (emphasis added).
Notably, the testimony at trial was that at plaintiffs' request Mark Milanese came over on
a Sunday to he!p Mr. Everett plant a number of plants, which Mr. Milanese did as a
friend, leaving prior to a football game. (N.T., 10/29/15, at 48.) The court was concerned
with the impact of plaintiff a action on the patio and thus properly reached the conclusion
it did on this issue.
Although it is true that plaintiffs have never been satisfied with the suggestions
offered, or attempts made, by defendants to repair the patio. the record evidence supports
the court's findings at FOF 47 and SS. The testimony at trial was that defendants
repaired "problem area" near·the left comer of the house by removing the pavers, the
stone. installing more sub-base, re-installing and sanding. (N.T •• 10/28/15, at 74.)
Furthermore, Mr. Milanese testified that he told plaintiffs he would attend to further
repairs and requested a punch list so that he could address any remaining problems.
(N.T., 10/28/15, at 195-196.)
Plaintiffs next allege that the court ..misconstrued" the testimony of their expert
witness regarding the cost of repair in reaching its findings at FOF 71 and 72. Juries are
instructed at trial that they may weigh one expert's testimony against another and
similarly may accept an opinion only if they accept the facts upon which it is based.
PENNSYLVANIA STANDARD RJRY INSTRUCTION 4.100. The court sitting as fact
finder is entitled to do the same. The fact that plaintiffs may have viewed the testimony
of their expert differently than the court does not render the court's conclusions
erroneous. FOF 71 and 72 were supported by the record testimony. (N.T., 10127/1 S, at
169; N.T., 10/29/IS. at 85.)
With regard to FOF 73-75 and 77·78 which address certain deficiencies with the
patio, the arguments offered by plaintiffs post-trial do not require the court to change the
conclusions it reached. The court made FOF 73 and 77 after hearing and considering the
testimony of all of the construction personnel and experts. Although plaintiffs can point
to parts of their case where they believe they met the burden of proof on an issue. the
court may consider all of the evidence as a whole in reaching its conclusions. It did so
here. As for FOF 7 4-7 S, plaintiffs do not, and cannot, deny that the findings made by the
court are accurate. Rather, plaintiffs simply argue that the repair of the patio should have
63
been handled differently by defendants and the remedies offered are unsatisfactory to
them.
Plaintiffs conclude this portion of their argument by denying that there was any
agreement that a rate of $37 /hour was a reasonable labor charge for repairs made to the
patio, as set forth in Footnote 1 of the court's Decision. At the proceeding on damages,
the court heard the testimony of plaintiffs" expert who stated that the minimum base rate
for a bricklayer, the closest classification to the trade involved in this matter, was
$37.00/bour and also the testimony of defendants' witness who testified that his rate for
completion of the project was about $35.00 hour. (SeeN.T., 3/21/16, at 27, 66.)
Post-trial motions should be granted "only where there is clear error of some kind,
whereby someone has suffered prejudice by that error." Soderburg v. Weisel, 455 Pa.
Super. 158, 687 A.2d 839 (1997). Plaintiffs simply have failed to establish that any of
the alleged instances of error occurred, or that even if proven, resulted in any harm or
prejudice to plaintiffs.
Findings of Fact Not Made by the Court
Plaintiffs next argue that the court erred in not finding as facts seventeen {17) of
the proposed findings offered by plaintiffs. It is well settled in Pennsylvania that a trial
court sitting as the finder of fact is not "obligated to agree with or adopt either party's
proposed findings of fact or conclusions oflaw, and failure to do so does not constitute
either an abuse of discretion or error of law." Belleville v. David Cutler Grp., 118 A.3d
1184, 1195 (Pa. Commw. 2015). The court did not err in this regard.
Plaintiff's' Challenges to the Court's Award of Damages
Plaintiffs contend that the court erred in not awarding them the full cost of repair
as presented by their expert, citing Fetzer v. Yishneski, 399 Pa. Super. 218, 223. 582 A.2d
23, 26 (1990). However, as the Fetzer court stated, "damages for the defective
performance of a building contract are often measured by looking to ..the cost of •••
correcting the defects by another contractor." Both parties submitted evidence regarding
the cost of remedying the defects here. Plaintiffs asserted at trial that the way to repair
the defects was to in essence, completely remove the patio and to start over. Defendants,
unlike the contractor In Fetzer, came forward with credible evidence to counter the
manner and cost of repair that were presented by plaintiffs. Although the Fetzer court
concluded in its case that repairing the leaking skylight was not feasible and therefore a
complete replacement was required, this court found differently on the facts before it.
After bearing and considering the testimony of multiple construction professionals, the
court concluded that a repair of the patio defects was possible for a reasonable cost. It
also properly concluded that the reasonable cost of such repairs was the amount it
awarded to plaintiffs.
2013-09683-c:r
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Plaintiffs' Challenge to the Court's Decision Regarding the Warranty Claim
Plaintiffs argue next that the court erred in not finding in their favor on the
express warranty claim. Upon review of the parties' post-trial submissions and
arguments, the court concludes that plaintiffs have failed to identify any legal argument
separate from those presented at the time of the trial. which the court considered at length
before rendering its Decision in this case. The court sees no error in its findings and
conclusions regarding plaintiffs' breach of express warranty claim.
Plaintiffs' Challenge to the Court's Decisions Regardfne: Treble Damage,
and Attorne.xs' Fees Punuant to UTPCPL
It is within the discretion of the court whether or not to award treble damages.
Schwartz v, Rockey, 593 Pa. 536, 557, 932 A.2d 885, 898 {2007). At pages 19-21 ofits
Decision, the court set forth its conclusions and analysis regarding the appropriateness of
treble damages and attorneys' fees in this case. The court finds no error in its decision
regarding these items of relief.
Plaintiffs' Challenge to the Court's Decisions Regarding Misrepresentation
and UTPCPL Claims Asserted Against Defendant Miianese Individually.
Plaintiffs argue next that the court erred in not finding in their favor on the
misrepresentation and lITPCPL claims asserted against Mark Milanese individually.
Upon review of the parties' post-trial submissions and arguments, the court concludes
that plaintiffs have failed to identify any legal eITOr in its findings and conclusions. The
court considered the allegations asserted in plaintiffs' complaints, and which are again
recited in their post-trial motion, and concluded that such statements were not actionable
as misrepresentations or violations of the UTPCPL.
Plaintiffs' Challenge to the Court's Decisions Regarding Interest.
Plaintiffs allege that the court erred in not awarding them interest on their breach
of contract damages and request that the court "modify/mold/change the award to include
interest." Plaintiffs" proposed findings of fact and conclusions of law which were
presented to the court failed to include any explanation or analysis of plaintiffs' right to
an award of interest. Plaintiffs simply asserted as follows at proposed conclusion of law
(7):
f. Plaintiffs arc entitled to recover the following damages
iv. Interest in the amount of$. _.... _
Plaintiffs then, and now, have failed to identify for the court exactly what type of
interest they seek and at what amount or rate and most important, the justification for
such an award. Although parties to a contract may request pre .. or post-judgment interest,
2013-09683-cr
6S
it is not the work of the court to decipher or guess at the damages sought by a party or the
reasons therefore.
2013-09683-t:T
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Type: ORDER
Case Number: 2013-09683-CT
Case Title: EVERETI, ANDREW ET AL VS. MILANESE, MARK ET AL
So Ordered
Isl Mark Tunnell
Electronicallysigned on 2016-01-2009 23 51 page7 cf 7
2013-09683-a
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