Piccioli, D. v. Faust Heating & A/C

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
DENISE PICCIOLI : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
FAUST HEATING AND A/C CO., INC. : No. 2532 EDA 2022
Appeal from the Order Entered September 6, 2022
In the Court of Common Pleas of Northampton County Civil Division at
No(s): C-48-CV-2021-07544
BEFORE: PANELLA, P.J., LAZARUS, J., and STABILE, J.
MEMORANDUM BY LAZARUS, J.: FILED MAY 5, 2023
Denise Piccioli appeals, from the order,1 entered in the Court of Common
Pleas of Northampton County, granting Appellee, Faust Heating and A/C Co.,
Inc.’s (Faust Heating) preliminary objections and dismissing Piccioli’s fifth
amended complaint with prejudice. After careful review, we affirm.
In February 2021, Piccioli contacted Faust Heating “to retain its services
to inspect and make necessary repairs to her [inoperable] gas furnace.” Fifth
Amended Complaint, 5/11/22, at ¶ 9. Piccioli hired Faust Heating “due to its
purported quality and employee standards” as described in the company’s
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1 As a general rule, an order sustaining preliminary objections and dismissing
a complaint is a final appealable order. See Lustig v. Lustig, 652 A.2d 393(Pa. Super. 1995).
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mission statement located on its website.2 Id. at ¶ 2. Piccioli avers that she
and Faust Heating
entered into a verbal service agreement (contract) over the
telephone wherein [Faust Heating] would provide [] necessary
repairs of the quality described [in its advertisements] to
[Piccioli’s] home heating, specifically repairs to her gas furnace to
restore the home heating, in exchange for monetary
compensation, to be determined by [Faust Heating] upon
completion of the work based upon the nature and extent of the
repairs required.
Id. at ¶ 11. On February 11, 2021, a Faust Heating representative came to
the Piccioli residence to evaluate and repair the furnace and, while working in
the attic of Piccioli’s home, “stepped through the drywall ceiling into the
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2 Specifically, that company’s mission statement reads:
Our team specializes in installation, repair, routine service, and
replacement of residential heating and air conditioning systems.
All technicians . . . are background checked and continually trained
in order to optimize each customer’s experience. . . . [O]ur family
has earned a reputation for providing a high quality of service[.]
Fifth Amended Complaint, 5/11/22, at ¶ 5. The mission statement also states
that the company “provide[s] high quality, valuable, and affordable home
comfort services[.]” Id. at ¶ 6. Finally, Piccioli quoted another company
advertisement that stated:
[Our employees are] highly skilled and experienced technicians.
On-going training to assure your complete satisfaction.
Technicians are licensed, insured, and certified. Personalized
service for all of your individual needs.
Id. at ¶ 7.
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second floor . . . caus[ing] significant damage to Piccioli’s second floor ceiling.”
Complaint, 10/15/21, at ¶¶ 18, 21. Faust Heating hired a drywall contractor
“to patch and repair the subject ceiling” in Piccioli’s home. Id. at ¶ 23.
According to Piccioli, the contractor “was ill-equipped and unable to reach the
connected ceiling to the foyer and living rooms of Piccioli’s property, resulting
in an unsightly color difference between the rooms.” Id. at ¶ 24. As a result
of the failed attempt to repair the damage, Piccioli “had to seek out repairs for
the poor quality of work and actions of [Faust Heating’s] . . . employee.” Id.
at ¶ 25.
On October 15, 2021, Piccioli filed a complaint3 against Faust Heating,
which included the following counts: Count I (breach of contract); Count II
(Unfair Trade Practices and Consumer Protection Law (UTPCPL));4 Count III
(Intentional Misrepresentation); Count IV (Negligent Misrepresentation);
Count V (Negligence); and Count VI (Negligent Supervision/Hiring/Retention).
On December 2, 2021, Faust Heating filed preliminary objections to Piccioli’s
complaint, asserting that the complaint lacked specificity. See Pa.R.C.P.
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3 In her original complaint, Piccioli alleged that “the damages caused and
attempted repairs by [Faust Heating] have not been remedied . . . [and that
despite her] compli[ance] with all of the terms and requirements of her
agreement with [Faust Heating] . . . [the company] has failed and refused to
fully remedy the damages to [her] property [or] comply with its obligations
under the parties’ agreement for services.” Id. at ¶ 15-17. Averring that she
has suffered “substantial harm and monetary damages,” id. at ¶ 20, Piccioli
sought compensatory (economic and non-economic) and treble damages.
4 See 73 P.S. 201-1-202-9.2.
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1028(a)(3); Pa.R.C.P. 1028(a)(4). Piccioli filed an amended complaint on
December 21, 2021. On January 10, 2022, Faust Heating filed preliminary
objections to the amended complaint.
Over the course of the next five-and-one-half months, Piccioli filed four
more amended complaints in response to Faust Heating’s serial preliminary
objections. On May 11, 2022, Piccioli filed a fifth amended complaint5 alleging
that Faust Heating had “breached the parties’ service agreement by failing to
provide [] services in a competent fashion and in direct opposition to [Faust
Heating’s] assertions as to quality and competency[.]” Fifth Amended
Complaint, 5/11/22, at ¶ 22. Two of the counts, Negligence and Negligent
Supervision/Hiring/Retention, were pled “[i]n the alternative to Count I
[(Breach of Contract)].” See id. at ¶¶ 13, 16. Faust Heating filed preliminary
objections to the fifth amended complaint, contending that: the complaint
does not plead a legally cognizable breach of contract claim; the UTPCPL
violation should be dismissed as legally insufficient; and the claims for
negligence and negligent supervision/hiring/retention should be stricken as
legally insufficient and lacking adequate specificity. See Preliminary
Objections to Fifth Amended Complaint, 4/21/22, at ¶¶ 12, 18, 21, 43, 53.
On September 6, 2022, the trial court granted Faust Heating’s
preliminary objections, dismissing, with prejudice, Counts I, II, III and IV of
Piccioli’s fifth amended complaint for insufficiency of a pleading in the nature
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5 The counts in the fifth amended complaint are: I (Breach of Contract); II
(UTCPCL); III (Negligence); and IV (Negligent Supervision/Hiring/Retention).
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of a demurrer. See Pa.R.C.P. 1028(a)(4). In dismissing Piccioli’s fifth
amended complaint, the trial court noted that Piccioli’s “negligence and
negligent supervision/hiring/retention claims were duplicative of her breach of
contract claim, notwithstanding [her] failure to set forth the essential terms
of the alleged contract in that breach of contract claim.” Pa.R.A.P. 1925(a)
Opinion, 11/29/22, at 2.
Piccioli filed a timely notice of appeal and court-ordered Rule 1925(b)
concise statement of errors complained of on appeal. Piccioli raises the
following issues for our consideration:
(1) Whether the [c]ourt erred as a matter of law and abused its
discretion in granting [Faust Heating’s] preliminary
objections in the form of a motion to dismiss Counts I, II,
III, and IV of [Piccioli’s f]ifth [a]mended [c]omplaint, and[,]
thereby[,] wrongfully dismissing [Piccioli’s f]ifth [a]mended
[c]omplaint with prejudice[.]
(2) Whether the [c]ourt erred as a matter of law and abused its
discretion in wrongfully determining that [Piccioli] had not
pled a legally cognizable breach of contract claim[.]
(3) Whether the [c]ourt erred as a matter of law and abused its
discretion in wrongfully determining that [Piccioli’s]
negligence and negligent supervision/hiring/retention
claims were barred by the gist of the action doctrine[.]
Appellant’s Brief, at 13.6
Our review of a trial court’s grant of preliminary objections in the nature
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6 Piccioli’s second and third issues are encompassed by her first broad issue
regarding the propriety of the court’s grant of Faust Heating’s preliminary
objections and dismissal of her fifth amended complaint. Thus, we analyze
the three issues by breaking them into the individual counts pled in Piccioli’s
fifth amended complaint.
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of a demurrer is as follows:
[O]ur standard of review of an order of the trial court [] granting
preliminary objections is to determine whether the trial court
committed an error of law. When considering the appropriateness
of a ruling on preliminary objections, the appellate court must
apply the same standard as the trial court.
Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (citation
omitted).
Pennsylvania Rule[] of Civil Procedure [] 1028(a)(4) allows for
preliminary objections based on the legal insufficiency of a
pleading. It is well established in Pennsylvania law that a
preliminary objection in the nature of a demurrer can be sustained
and a complaint dismissed when the complaint is clearly
insufficient on its face to establish the pleader’s right to relief.
Cooper v. Franford Health Care System, Inc., 960 A.2d 134, 143 (Pa.
Super. 2008).
When reviewing a trial court’s order sustaining preliminary objections in
the nature of a demurrer and dismissing a lawsuit, the appellate court’s scope
of review is plenary. DeMary v. Latrobe Printing and Pub. Co., 762 A.2d
758, 761 (Pa. Super. 2000). Moreover, “[f]or purposes of our review of the
complaint, only well[-]pleaded material facts are admitted, and not
conclusions of law.” McKeeman and Chendorain v. Corestates Bank NA
and Security Abstract of Pa., Inc., 751 A.3d 655, 658 (Pa. Super. 2000)
(citation omitted). See Mellon Bank, N.A. v. Fabinyi, 650 A.2d 895, 899
(Pa. Super. 1994) (“In ruling on preliminary objections in the nature of a
demurrer, the trial court may consider no testimony or evidence outside of
the complaint.”) (citation omitted).
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Piccioli contends that the trial court erred in dismissing her fifth
amended complaint, with prejudice, where she “sufficiently and succinctly pled
. . . the factors necessary and required under the governing case law to sustain
her claims.” Appellant’s Brief, at 17. We address each count of Piccioli’s fifth
amended complaint ad seriatim. See supra at n.6.
Count I - Breach of Contract7
Piccioli claims that Faust Heating “breached the parties’ service
agreement by failing to provide the [] services in a competent fashion and in
direct[] opposition to [Faust Heating’s] assertions as to quality and
competency.” Appellant’s Brief, at 21. Specifically, Piccioli alleges that where
Faust Heating represented that its employees are “highly skilled [and]
experienced” due to their “ongoing training to assure [a customer’s] complete
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7 In her appellate brief, Piccioli argues:
[In her f]ifth [a]mended [c]omplaint [she] sets forth in detail the
cause of action in concise and summary form, averring parties,
time, place[,] and items of special damages, referencing
agreements with [Faust Heating], which together with the
paragraphs of [Piccioli’s f]ifth [a]mended [c]omplaint cumulatively
identified the type, nature, and substance of the subject
agreement/contract. [Piccioli’s f]ifth [a]mended [c]omplaint sets
forth details from [Faust Heating’s] website regarding its
purported ‘quality’ services which were either authored and/or
stated by [Faust Heating] and considered part of the terms of the
agreement/contract with [Piccioli]. As such, the pleading is
sufficiently clear to enable [Faust Heating] to prepare a response
and informs [Faust Heating] with accuracy and completeness of
the specific basis on which recovery is sought so that it may know
without question upon what grounds to make its defense.
Appellant’s Brief, at 31 (citations to record omitted).
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satisfaction,” the Faust Heating employee “should have known of the proper
way to walk through an attic without stepping through a ceiling.” Id. See
also Fifth Amended Complaint, 5/11/22, at ¶ 20. Piccioli claims that Faust
Heating “had a duty to [her] to provide reasonable care and services as guided
by its profession and its accepted standard of conduct, as well as by its own
advertising and verbal guarantees to [her and that the company’s] failures led
to damages to [her] property, which were [] not remedied [and] caus[ed]
actual losses and damages to [her].” Appellant’s Brief, at 24, citing Fifth
Amended Complaint, 5/11/22, at ¶¶ 35-36.
To support a claim for breach of contract, a plaintiff must allege three
elements: (1) the existence of a contract, including its essential terms,
(2) a breach of a duty imposed by the contract, and (3) resulting damages.
Pittsburgh Constr. Co. v. Griffith, 834 A.2d 572, 580 (Pa. Super. 2003)
(emphasis added) (citation omitted). “Essential terms” include, but are not
limited to, the time or manner of performance of the contract and price or
consideration. Lackner v. Glosser, 892 A.2d 21, 31 (Pa. Super 2006).
Moreover, to determine whether a contract is enforceable, a trial court “must
examine whether both parties have manifested an intent to be bound by the
terms of the agreement, whether the terms are sufficiently definite, and
whether consideration existed.” Cardinale v. R.E. Gas. Dev. LLC, 74 A.3d
136, 140 (Pa. Super. 2013) (emphasis added).
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In ruling on Faust Heating’s preliminary objections,8 the trial court
concluded that Piccioli had not pled a legally cognizable breach of contract
claim where she “argues [Faust Heating] . . . failed to repair her furnace . . .
with the right standard of quality and professionalism” and where “the
obligation that [Faust Heating] owed to [Piccioli] in the service agreement is
unclear.” Trial Court Opinion, 9/6/22, at 5.
In her fifth amended complaint, Piccioli asserted that Faust Heating
breached the parties’ February 11, 2021 verbal-over-the-phone service
agreement “wherein [Faust Heating agreed that it] would provide quality
repairs . . . in exchange for monetary compensation.” Fifth Amended
Complaint, 5/11/22, at ¶ 47. See id. at ¶¶ 5-7 (Piccioli specifically citing
Faust Heating’s company website to set forth standard company advertises
with regard to quality of service, level of employee training, and skill and
experience of technicians). See also supra at n.2. Additionally, Piccioli
states that Faust Heating “wholly neglected to do and perform certain things,
which were expressly or by necessary implication required to be done and
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8 In its preliminary objections to Piccioli’s fifth amended complaint, Faust
Heating states that Piccioli’s breach of contract claim should be dismissed
where she does not define any of the essential terms of the parties’ alleged
oral agreement, she “does not identify the nature and extent of the repairs to
be performed [on her furnace], the timing or amount of compensation to be
paid, or any other promises made by [Faust Heating],” and where Piccioli’s
“allegations in support of her breach of contract claim [do not] address th[e]
repair work [for her heating system], or any defects therewith.” Preliminary
Objections to Fifth Amended Complaint, 4/21/22, at ¶¶ 14-17.
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performed under the parties’ contract[.]” Fifth Amended Complaint, 5/11/22,
at ¶ 54 (emphasis added). Specifically, Piccioli claims Faust Heating did not:
• “fully monetarily compensate [her] for damages incurred as
a result of [its] actions;
• “honor and comply with the terms of the parties’ agreement,
wherein [she] hired [the company] based on its
representations that it would provide services with
professionalism, competency[,] and quality; and
• “take and assume proper action after causing damages to
[her] property”
Id. at ¶ 54 (a.-c.) (emphasis added).
In Pennsylvania Supply, Inc. v. American Ash Recycling Corp. of
Pennsylvania, 895 A.2d 595 (Pa. Super. 2006), our Court stated, “[w]hile
not every term of a contract must be stated in complete detail, every
element must be specifically pleaded.” Id. at 600 (emphasis added)
(citation omitted). Moreover, “[c]larity is particularly important where an oral
contract is alleged.” Snaith v Snaith, 422 A.2d 1379, 1382 (Pa. Super.
1980).
First, we note that nowhere in her fifth amended complaint does Piccioli
state what the compensation terms are under the parties’ agreement and how
much, if anything, she compensated Faust Heating for any rendered services.
In addition, Piccioli does not aver exactly what terms she and Faust Heating
agreed upon with regard to servicing the furnace, and whether her furnace
was, indeed, repaired. Moreover, Piccioli does not state exactly what her
“damages” consist of. At most, we are told that there is “an unsightly color
difference between the [foyer and living] rooms” in Piccioli’s home. Fifth
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Amended Complaint, 5/11/22, at ¶ 24. See Delahanty v. First
Pennsylvania Bank, N.A., 464 A.2d 1243, 1256 (Pa. Super. 1983) (plaintiff
need not allege damages with “mathematical precision,” but must plead facts
so trier of fact can determine appropriate estimation of damages without
speculation). Finally, Piccioli does not plead the time or manner in which the
alleged services were to be provided, save for the generalized statement that
compensation was “to be determined by [Faust Heating] upon completion of
the work based upon the nature and extent of the repairs required.” 9 Fifth
Amended Complaint, 5/11/22, at ¶ 11.
In evaluating whether preliminary objections should be sustained under
Rule 1028(a)(4), it must be clear that under “the law [] a [p]laintiff is not
entitled to recovery based on the facts alleged in the complaint.” Bargo v.
Kuhns, 98 A.3d 686, 689 (Pa. Super 2014) (quotation omitted). Based upon
the facts pled in her fifth amended complaint, we agree with the trial court’s
determination that Piccioli’s breach of contract count lacked legal specificity.
See Lackner, supra at 31 (where “̀̀̀̀ a
̀̀ greement’ [was] too indefinite for a
party to reasonably believe that it could be enforceable in an action at law”)
(emphasis in original). Considering all well-pled facts and reasonable
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9 Although Piccioli claims that Faust Heating breached its contract, she fails to
state how the breach caused damages related to the parties’ service
agreement on her furnace. In fact, if Faust Heating did fix Piccioli’s furnace,
we concur with Faust Heating that any alleged “damage does not appear to
have any connection to any work related to [Piccioli’s] gas furnace, but rather
stems from an incidental event wherein [Faust Heating’s] employee is alleged
to have stepped through [her] ceiling.” Appellee’s Brief, at 17.
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inferences to be drawn therefrom, the circumstances surrounding Piccioli’s
breach of contract claim are so illusory that no legal recovery is possible.
Thus, the court correctly dismissed Count I of Piccioli’s fifth amended
complaint.
Count II - UTCPCL
In her UTCPCL claim,10 Piccioli claims that Faust Heating “fraudulently
held itself out” as a provider of “high quality service” and employed deceptive
advertising in order to secure its agreement with Piccioli. Piccioli asserts that
Faust Heating misrepresented that its employees were “highly skilled” and had
completed “on-going training to assure [Piccioli’s] complete satisfaction.”
Appellant’s Brief, at 22-23.
“Aimed at preventing consumer fraud, the UTPCPL enables an individual
to institute a private action to recover damages for any ascertainable loss
caused by unfair or deceptive acts or business practices.” Lesoon v. Metro.
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10 In particular, Piccioli cites to the following sections of the UTPCPL in her
fifth amended complaint:
(v) Representing that goods or services have sponsorship,
approval, characteristics, ingredients, uses, benefits or
quantities that they do not have or that a person has a
sponsorship, approval, status, affiliation or connection that he
does not have;
(vi) Representing that goods or services are of a particular
standard, quality or grade . . . if they are of another; and
(xxi) Engaging in any other fraudulent or deceptive conduct which
creates a likelihood of confusion or of misunderstanding.
73 P.S. § 201-2(4)(v), (vi), & (xxi) (emphasis added).
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Life Ins. Co., 898 A.2d 620, 628 (Pa. Super. 2006). “The Pennsylvania
Supreme Court has stated [that] courts should liberally construe the UTPCPL
in order to effect the legislative goal of consumer protection.” Knight v.
Springfield Hyundai, 81 A.3d 940, 949 (Pa. Super. 2013) (citation omitted).
Under the UTPCPL, “it is unlawful to engage in . . . ‘unfair or deceptive
acts or practices’ in the conduct of any trade or commerce[.11]” Id., citing 73
P.S. § 201-3(a). To prevail in a private cause of action under the UTPCPL, an
individual must establish that:
(1) they purchased or leased goods or services primarily for a
personal, family, or household purpose; (2) they suffered an
ascertainable loss of money or property; (3) the loss occurred as
a result of the use or employment by a vendor of a method, act,
or practice declared unlawful by the [UTPCPL]; and (4) the
consumer justifiably relied upon the unfair or deceptive business
practice when making the purchasing decision.
Gregg v. Ameriprise Fin., Inc., 245 A.3d 637, 646 (Pa. 2021) (quotation
marks omitted); see also 73 P.S. § 201-9.2(a). In addition to other elements,
an individual seeking relief under the UTPCPL must establish the elements of
justifiable reliance and causation. Kirwin v. Sussman Auto., 149 A.3d 333,
336 (Pa. Super. 2016).
Instantly, Piccioli claimed that Faust Heating’s “misleading statements
and representations” consisted of the following phrases listed on the heating
company’s website:
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11The UTPCPL defines “trade” and “commerce” as “the advertising . . . of any
services . . . and includes any trade or commerce directly or indirectly affecting
the people of this Commonwealth.” 73 P.S. § 201-2(3).
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• its employees are “extensively trained” and “100% dedicated to
customer satisfaction;”
• its employees are “service professionals;”
• it upholds the “family tradition of excellence;”
• its employees are “trustworthy” and “dependable;”
• the customer’s experience would be “one of comfort and trust, not
anxiety and worry;” and
• it provides “services of a high quality and competency”
Fifth Amended Complaint, 5/11/22, at ¶¶ 61 (a.-g.).
“Representing that goods or services are of a particular standard, quality
or grade . . . if they are of another” is an unlawful activity under the UTPCPL.
73 P.S. § 201-2(4)(vii).12 However, “[w]here the impression created by [a]
statement is one of exaggeration or overstatement expressed in broad
language, it may be deemed non-actionable puffery [under the UTPCPL].”
Commonwealth v. Golden Gate Nat’l Senior Care, LLC, 194 A.3d 1010,
1023 (Pa. 2018). When considering whether statements are actionable under
the UTPCPL:
[statements of a] patently hyperbolic or excessively vague
character that dissuades any reasonable consumer from placing
reliance thereon as fact render [such] puffery non-actionable
under the UTPCPL. In contrast, where a plaintiff establishes that
a statement contains believable, inaccurate statements of fact,
the statement falls beyond the reach of a puffery defense.
Id. at 1024 (citation omitted).
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12 The UTPCPL also considers “[m]aking repairs, improvements 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” as a deceptive
act or practice. 73 P.S. § 201-2(4)(xvi). However, here Piccioli has alleged
that the parties’ agreement was oral, not written.
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Here, the trial court concluded that Piccioli did not make a legally
sufficient claim under the UTPCPL where she “has not demonstrated [that] she
suffered an ‘ascertainable loss’ that occurred as a result of [Faust Heating’s]
‘deceptive’ statements.’” Trial Court Opinion, 9/6/22, at 6. Moreover, the
court found that “one accident [by an employee] does not demonstrate [that
Faust Heating] lied about its services or its employees . . . [as even] highly
trained and experienced service professionals can and do make mistakes.”
Id.
Instantly, Piccioli’s complaint fails to plead any alleged facts to illustrate
that Faust Heating employees are not highly skilled or that the company does
not provide high quality service, other than a factual statement that a Faust
Heating employee accidentally caused damage in her attic while he was there
to fix her furnace. At most, the claims made on Faust Heating’s website were
generalized statements that amounted to mere “puffery”—simply claims
regarding the superiority of its services. The statements were neither
“deceptive” nor made with an “intent to induce” Piccioli to use its services.13
Accordingly, we agree that the court properly dismissed Piccioli’s UTPCPL
count.
Counts III & IV – Negligence & Negligent
Supervision/Hiring/Retention
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13 In fact, it is common practice for similarly-situated consumers to not take
such statements at face value, but seek referrals or ask questions regarding
a company’s prior jobs before employing its services.
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Finally, Piccioli contends the trial court improperly dismissed her
negligence-based claims where there is a “strong public policy in favor of a
service provider owing a duty to its customer[,] . . . the risk of allowing
employees to cause damage to [a] customer’s property, without holding the
service provider responsible . . . cannot be overstated[,] . . . and the
consequences of imposing a duty upon [Faust Heating] are minimal.”
Appellant’s Brief, at 35 (emphasis in original).
The trial court concluded that Piccioli’s negligence claims are barred by
the “gist of the action” doctrine where Piccioli alleges nothing more than her
negligence claims “are in fact based upon [an alleged] contract.” See Trial
Court Opinion, 9/6/22, at 8 (pointing out Piccioli’s claim that Faust Heating
“did not provide the type of ‘quality’ repair it had advertised [under the
parties’] service agreement.”). We agree.
Faust Heating correctly notes that Piccioli’s negligence claims “were
nothing more than a regurgitation of her breach of contract claims under a
new theory.” Appellee’s Brief, at 10. Piccioli attempts to convert her contract
claim into one sounding in tort by listing the negligence counts in her
complaint as “alternative” counts to her breach of contract claim. Here,
Piccioli’s negligence claims were not based on Faust Heating’s alleged breach
“of a general social duty,” but rather an allegation that Faust Heating had
directly breached its service agreement with her where Faust’s employee did
not perform with the level of “professionalism and quality” that she had
expected. See Bruno v. Erie Ins. Co., 106 A.3d 48, 66 (Pa. 2014) (contract
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claim cannot be converted to one in tort simply by alleging conduct in question
was wantonly done). Here, the facts pled in Piccioli’s complaint allege that
the duty Faust Heating breached was a private contractual one. See Bash v.
Bell Tel., 601 A.2d 825, 829 (Pa. Super. 1992) (“Tort actions lie for breaches
of duties imposed by law as a matter of social policy, while contract actions
lie only for breaches of duties imposed by mutual consensus
agreements between particular individuals[.]”) (citation omitted)
(emphasis added). Thus, the trial court correctly dismissed Piccioli’s
negligence-based claims (Count III and Count IV of fifth amended complaint)
based on the “gist of the action” doctrine.
Accordingly, we conclude that the trial court did not commit an error of
law or abuse its discretion in granting Faust Heating’s preliminary objections
and dismissing Piccioli’s fifth amended complaint with prejudice. Feingold,
supra.Order affirmed.
Panella, President Judge joins this memorandum.
Stabile, J., files a Concurring/Dissenting Memorandum.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/05/2023
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