author: ZULICK, J.,

text:
    Herrera v. Papillon

      C.P. of Monroe County,
    No. 7308 CV 2011.

      James I Mulligan, for plaintiff.

      Joseph S. Weismeth, for defendants Marvin Papillon and Papillon Contracting, Inc.

      James L. Goldsmith, for defendant RE/MAX Crossroads Realty.

      Patrick J. Boland, III, for defendants Better Homes and Gardens, R.E. and Wilkins and Associates.

      Marc B. Zingarini, for defendant Safe Guard Home Inspections.
    April 11, 2013
   ZULICK, J.,

On August 8, 2009, Rene Herrera entered into a written contract with Marvin Papillon (“Papillon”) for the purchase of property located at 14 Chapman Road, East Stroudsburg, Pa (“property”). Herrera inspected the home personally, and hired a professional inspector to do the same. Shortly after the contract was completed, and Herrera moved into the home, Herrera observed that rainstorms would cause the basement to flood, sometimes taking on two to three feet of water. Herrera brought suit against multiple parties, including Papillon and his contracting business, Papillon Contracting, Inc. Herrera additionally sued his agent in the home purchase, Mr. Papillon’s agent in the home purchase, and the home inspection service he hired before completing the contract.

Herrera sued Papillon for violating the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. 201-1, et. seq., (“UTPCPL”) and for fraud. Herrera has alleged that Papillon knew of the flooding issue, and not only did not disclose it to Herrera, but actively sought to hide the same by pumping water out of the flooded basement on at least one occasion. Herrera seeks punitive damages and the payment of Herrera’s attorney fees.

Papillon filed preliminary objections to Herrera’s third amended complaint. Papillon asserts: (1) Papillon Contracting, Inc. is not a proper party to the action, as it had no dealings with Herrera during the purchase of the property, (2) Herrera failed to set forth a legally viable claim for either fraud or a violation of the UTPCPL, (3) Herrera failed to set forth a legally viable claim for punitive damages, and (4) Herrera failed to set forth a viable claim for attorney’s fees. After receiving briefs from both parties, this matter was argued before the court on April 1, 2013.

Papillon’s preliminary objections are in the nature of a demurrer. In considering preliminary objections, “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deductible therefrom, must be accepted as true.” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cm with. 1990). The “court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Penn Title Insurance Co. v. Deshler, 661 A.2d 481, 483 (Pa. Cmwlth. 1995).

First, Papillon objects to the inclusion of Papillon Contracting, Inc. as a party to the suit. Generally, a contract action cannot be maintained against a person or entity not a party to the contract, except where the non-party is a third party beneficiary, or where the suit is for breach of warranty or product liability. Nicolesu v. Kerr, 38 Pa. D. & C. 4th 546, 549 (Pa. Com. Pl. 1998) (citing Manor Junior College v. Keller’s Inc., 507 A.2d 1245 (Pa. Super. 1986)). Papillon Contracting, Inc. is not mentioned at all in the Property contract. Marvin Papillon is listed as the seller. Marvin Papillon signed the contract. “A corporation is not in reality a person, but the law regards it as distinct and separate from the individual stockholders. It has a real existence with rights and liabilities as a separate legal entity. This is true even if a single individual owns and controls all of the corporation’s stock.” U.S. v. Sain, 141 F.3d 463, 474 (3d Cir. 1998) (internal quotations and citations omitted).

Simply alleging that Papillon committed a wrong is not enough to establish the corporation’s liability. The only other mention of Papillon Contracting, Inc. is in Herrera’s brief, where Herrera states that when notified of the flooding issue, Mr. Papillon sent an employee of Papillon Contracting, Inc. to investigate the matter. However, Herrera’s third amended complaint merely states that Papillon sent an agent to investigate, and Papillon Contracting, Inc. is not mentioned further. As the third amended complaint does not allege a wrongdoing by, or a relationship with, Papillon Contracting, Inc., Papillon’s preliminary objection is sustained and Papillon Contracting Inc. is removed as a party to this proceeding.

Next, Papillon argues that Herrera has failed to allege a viable claim under the UTPCPL and for fraud. Papillon argues (1) the Real Estate Seller Disclosure Law (“Disclosure Law”), 68 Pa. C.S. §7301, et. seq., precludes the UTPCPL claim and (2) Herrera failed to allege the necessary elements of his claim for fraud.

Herrera’s UTPCPL and fraud claims are based upon Papillon’s alleged failure to disclose previous flooding of the basement of the home, and attempts to conceal the problem. Under the UTPCPL, sellers can be found liable for engaging in any “fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.” 73 P.S. §201 -2(4)(xxi). For a claim to succeed under this so called “catch-all” provision, Herrera must prove, similar to fraud, that he justifiably relied on the defendant’s wrongful conduct and was thereby harmed. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004).

The violation of the Disclosure Law is the basis for Herrera’s UTPCPL claim against Papillon. The Disclosure Law requires that “[a]ny seller who intends to transfer any interest in real property [must] disclose to the buyer any material defects with the property known to the seller...” 68 Pa. C.S. §7303. Papillon counters that because Herrera engaged an expert inspection company, who did not find any problems with the property, Papillon cannot be held liable for any non-disclosures or omissions relating to the property. In support, Papillon cites to §7309 of the Disclosure Law, which states:

(a) General rule. — A seller shall not be liable for any error, inaccuracy or omission of any information delivered pursuant to this chapter if:
(1)the seller had no knowledge of the error, inaccuracy or omission;
(2) the error, inaccuracy or omission was based on a reasonable belief that a material defect or other matter not disclosed had been corrected; or
(3) the error, inaccuracy or omission was based on information provided by a public agency, home inspector, contractor or person registered or licensed under an act referred to in section 7503(a) (relating to relationship to other laws) about matters within the scope of the agency’s jurisdiction or such other person’s occupation and the seller had no knowledge of the error, inaccuracy or omission.
(b) Delivery of information by public agency. — The delivery of any information required to be disclosed by this chapter to a prospective buyer by a public agency or other person providing information required to be disclosed under this chapter shall be deemed to comply with the requirements of this chapter and shall relieve the seller or the agent of the seller from any further duty under this chapter with respect to that item of information.
(c) Report by expert. — The delivery of a report or opinion prepared by a home inspector, contractor or person registered or licensed under an act referred to in section 7503(a) dealing with matters within the scope of the person’s registration, license or expertise shall be sufficient compliance for application of the exemption provided under subsection (a)(3) if the information is provided to the prospective buyer in writing.

68 Pa. C.S. §7309. This statute does not preclude the UTPCPL claim. Here, Papillon is alleged to have had knowledge of the defect. The failure to disclose the flooding problem was not based on a lack of knowledge, a reasonable belief that the problem had been corrected, or a public report. Further, insofar as Papillon relies on the fact that Herrera procured an expert to undertake an inspection, who found no defects, §7309 of the Disclosure Law appears only to apply in cases where the seller commissions and delivers an expert report to the buyer. Therefore, the Disclosure Law does not preclude a UTPCPL claim in the present case.

Papillon argues that Herrera has failed to plead the elements of fraud. In Pennsylvania,

[T]o prove fraud the following elements must be shown: (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; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance.

Milliken v. Jacono, 60 A.3d 133, 140 (Pa. Super. 2012). Further,

[i]n real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.

Id., quoting Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa.Super.2002) (citations and quotation marks omitted), appeal denied, 573 Pa. 714 (2003). If Herrera’s allegations are taken as true, Papillon misrepresented the condition of the property by failing to disclose the flooding problem. Further, Herrera has alleged that Papillon knew of the flooding problem, and actively tried to conceal the same, by pumping the water out of the basement. Herrera would be justified in relying on the disclosures of a seller of real estate in Pennsylvania, and, if true, Papillon’s failure to disclose the flooding problem would be the proximate cause of Herrera’s injury. Therefore, Herrera has adequately pled the elements of fraud.

In the alternative, Papillon argues that Herrera should be barred from introducing extrinsic evidence as to the UTPCPL and fraud claims, based on the parol evidence rule. “The parol evidence rule functions to bar the introduction of evidence concerning alleged prior misrepresentations when a writing is adopted by the parties as the final and complete expression of their agreement.” Rock v. Voshell, 397 F. Supp. 2d 616, 622 (E.D. Pa. 2005). Additionally,

[contracts often contain an integration clause, specific language establishing that such agreement is the final and complete expression of the agreement. An integration clause ensures that the written contract, if unambiguous, is held to express all of the negotiations, conversations, and agreements made prior to its execution, and neither oral testimony, nor prior written agreements, or other writings, are admissible to explain or vary the terms of the contract.

Id. at 623. The property contract between Herrera and Papillon did contain an integration clause. The integration clause in the present case states:

This agreement contains the whole Agreement between Seller and Buyer, and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever concerning this sale. This Agreement will not be altered, amended, changed or modified except in writing executed by the parties.

Agreement of sale |28(A). However, evidence of misrepresentation by a seller in a real estate contract can supersede the parol evidence rule.

Where buyers allege that they were fraudulently induced to purchase a property through fraud or misrepresentation, the applicability to the parol evidence rule is determined by balancing the extent of the party’s knowledge of objectionable conditions derived from a reasonable inspection against the extent of the coverage of the contract’s integration clause in order to determine whether the party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.

Bowman v. Meadow Ridge, Inc., 615 A.2d 755, 759 (Pa. Super. 1992) (citing LeDonne v. Kessler, 389 A.2d 1123 (Pa. Super. 1978)).

Here, Herrera alleges that he was fraudulently induced to purchase the property. While the integration clause in the property contract is broad in scope, Herrera further alleges that he did not learn of the flooding after undertaking a reasonable inspection. Herrera alleges that Papillon actively hampered his ability to discover the flooding problem by pumping water out of the basement. On balance, the Herrera’s lack of knowledge, or means to acquire the same, outweighs the breadth of the integration clause. Therefore, Papillon’s objection to the fraud and UTPCPL claims in the alternative will likewise be denied.

Papillon next objects to Herrera’s prayer for punitive damages. Punitive damages are an ‘extreme remedy’ available only in the most exceptional circumstances.

Additionally, punitive damages may be appropriately awarded only when the Herrera has established that the defendant has acted in an outrageous fashion due to either the defendant’s evil motive or his reckless indifference to the rights of others.

Phillips v. Cricket Lighters, 584 Pa. 179, 188 (2005) (internal citations omitted). “The trial judge must determine in the first instance whether the Herrera has presented sufficient evidence to support a punitive damage claim, which requires evidence on which the jury might reasonably conclude that outrageous conduct has been established by a preponderance of the evidence.” Rizzo v. Michener, 584 A.2d 973, 979 (Pa. Super. 1990). “When fraud is the basis of Compensatory damages, the same fraudulent conduct is not sufficient to base an award of punitive damages without more.” Pittsburgh Live, Inc. v. Servov, 615 A.2d 438, 442 (Pa. Super. 1992).

Reading the complaint in the light most favorable to Herrera, Papillon knew of the defect in the property’s basement, did not disclose it to Herrera, and actively prevented Herrera’s discovery of the defect. The intentional covering up of the defect by Papillon goes beyond fraudulent non-disclosure. As such, ajury could reasonably find that outrageous conduct has been established by a preponderance of the evidence. Accordingly, Papillon’s preliminary objection is denied.

Finally, Papillon objects to Herrera’s prayer for the payment of Herrera’s attorney’s fees. “It is well established that a litigant is responsible for his own counsel fees absent an agreement by the parties or some other established exception.” Pittsburgh Live, 615 A.2d at 441 (citations omitted). There is no exception for claims of fraud. Id. at 442. However, attorney’s fees may be allowed under the UTPCPL. See, 73 P.S. §201-9.2(a). Papillon concedes that attorney’s fees are recoverable under the UTPCPL. Therefore, Papillon’s preliminary objection will be sustained with regard to the claim for fraud, and denied with regard to the claim under the UTPCPL.

ORDER

And now, April 11, 2013, upon consideration of defendant Marvin Papillon’s preliminary objections, the briefs by both parties, and the argument before the court, it is ordered:

1. Defendant Papillon Contracting, Inc.’s demurrer is granted, plaintiff’s claims against Papillon Contracting, Inc. are dismissed.
2. Defendant Marvin Papillon’s demurrer to Plaintiff’s claim for attorney’s fees in count II — fraud of the third amended complaint is granted. Plaintiff Herrera claim for attorney’s fees in this count is dismissed.
3. Defendant Papillon’s remaining preliminary objections are denied.
4. The caption of this matter is amended to spell Papillon’s name in accordance with the spelling he uses in his pleadings.
5. Papillon is directed to file an answer to the third amended complaint within twenty (20) days.


source: Caselaw Access Project

author: COX, J.,

license: Public Domain

text:
    Yarletts v. C&Z Gymnastics & Cheer Academy, Inc.

      C.P. of Lawrence County,
    No. 10876 OF 2010.

      Gene G. Dimeo and Joseph S. Beilis simo, for plaintiff

      Robert J. Grimm and Ryan M. Joyce, for defendants.
    April 19, 2013
   COX, J.,

Before the court for disposition is the motion for summary judgment filed on behalf of the defendants C&Z Gymnastics & Cheer Academy Inc., Deborah Caparoula, Terry A. Zarilla and Deborah Caparoula and Terry A. Zarilla d/b/a C&Z Gymnastics & Cheer Academy, which argues that the Plaintiff failed to present evidence to support her claim there was a defective condition of the spring floor and the alleged defective condition caused the plaintiff’s injuries. Moreover, the defendants assert that the plaintiff has failed to proffer evidence that the defendants did not provide proper instruction or supervision to its competition cheerleading participants.

The defendants operated a business in which they instructed individuals regarding cheerleading and gymnastics. The plaintiff Brooke Yarletts participated in Cheer Gym class offered by the defendants for six months when she was approached by a cheerleading instructor employed by the defendants, who asked the plaintiff to participate in competitive cheerleading. She auditioned and was selected for the competitive cheerleading team, which included other participants ranging in age up to 16 or 17 years old. On November 29, 2001, the baser whose responsibility it was to hold the plaintiff during a pyramid stunt quit the team and was replaced by another baser. On the same date, the plaintiff fell while practicing a pyramid stunt at the defendant’s facility. As a result of that fall, the plaintiff suffered severe injuries, which included the loss of mobility in her right arm. Since the fall, she had to undergo several surgeries.

The plaintiff initiated suit against the defendants on June 10, 2010, by filing a praecipe for writ of summons. On August 16,2010, the plaintiff filed a complaint and the defendants filed preliminary objections. Oral argument was scheduled on those preliminary objections, but oral argument was unnecessary as the plaintiff filed her first amended complaint on January 25, 2011. In response, the defendants filed preliminary objections to the plaintiff’s first amended complaint. The plaintiff filed her second amended complaint on May 20, 2011, and the defendants filed their answer and new matter to plaintiff’s second amended complaint on July 11, 2011.

The defendants filed a motion for summary judgment on May 24, 2012, which raised, among other issues, that the plaintiff failed to provide an adequate expert report to support her claims of negligence concerning the condition of the spring floor or the propriety of supervision of the competition cheerleading team. Oral argument was originally scheduled for July 30,2012, but the plaintiff filed a motion to continue oral argument, which was granted by the court. Oral argument was then rescheduled for November 26, 2012, and argument occurred on that date. At oral argument, the plaintiff provided the court with the affidavit of M. Gemma Fotia, who the plaintiff retained as an expert. However, that affidavit merely contained Ms. Fotia’s qualifications, but lacked a report regarding liability. On December 13, 2012, the court granted the plaintiff 30 days to file an expert report and the parties were provided with an opportunity to supplement their original briefs. The plaintiff then filed Ms. Fotia’s expert narrative report and opinion on January 9, 2013. In response, the defendants filed a supplemental brief in support of motion for summary judgment on January 25, 2013, which argued that the plaintiff failed to provide evidentiary support for her assertion that her injuries were caused by a defective condition of the defendants’ spring floor. The defendants also requested oral argument regarding that supplemental brief. On March 5,2013, the plaintiff filed a supplemental brief in opposition to defendants’ motion for summaiy judgment. This court held the second oral argument requested by the defendants on March 25, 2013.

The expert narrative report and opinion issued by Ms. Fotia stated that she is a licensed and certified cheerleading coach, cheerleading safety instructor and advisor. She remains a practicing cheerleading coach and has served as such for 25 years on various levels. She has coached cheerleading at Slippery Rock University of Pennsylvania for 20 years. Moreover, she has been a judge for the National High School and All-Star Cheerleading Championships in Orlando, Florida. Ms. Fotia explained that competitive cheerleading includes an intense cheering regimen of stunts and tumbling that requires a higher level of physical fitness and a higher risk of injury. In addition, Ms. Fotia opined that the plaintiff only had a novice skill level at the time she entered competitive cheerleading and she required “hands-on” spotting and progressive teaching methods as set forth by the American Association of Cheerleading Coaches & Administrators’ Manual. She stated that the defendants or their employees did not utilize those mandatory standardized practices when instructing the plaintiff. Moreover, Ms. Fotia explained that the plaintiff was also being supported by a new baser who did not receive the proper training which would have aided in avoiding a fall. She further opined that basic skills were not taught to the plaintiff, such as the “step-up” drill which should have been performed before attempting any type of stunt. Ms. Fotia stated that there is nothing in the record indicating proper spotting techniques were taught to team participants. She explained that the record indicated the spring floor was inspected annually, which is, in her opinion, “completely inadequate”. Ms. Fotia believed that the spring floor should be inspected on a bi-weekly basis to assure that it is functioning properly because a failure to do so could result in injury to the participants. She insisted that the spring floor is inspected for safety purposes at each break of a typical cheerleading competition. Ms. Fotia stated that she observed those aforementioned risks and dangers when she was employed by the defendants. Hence, Ms. Fotia opined, “[Ejach of the discussed risks of harm and negligence of the defendants singularly or a combination of everything stated above was a substantial factor in bringing about the harm and injuries suffered by the plaintiff, Brooke Yarletts on November 29, 2001.”

The purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summaiy judgment in whole or in part as a matter of law whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2. However, summary judgment is only appropriate when discovery relevant to the motion has been completed. Id. Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co., 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspaper, Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)).

The moving party bears the burden of proving the non-existence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspaper, Inc., 453 Pa.Super. 464, 469-472, 684 A.2d 137, 140 (1996).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm, Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 20001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super.2000); Stevens Painton Corporation v. First State Insurance Company, 146 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra. If there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76(1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

First, the defendants contend that the plaintiff has failed to present evidence to support her claims there was a defective condition of the spring floor and that defective condition caused the plaintiff’s injuries.

A possessor of land owes a duty to protect a business invitee from foreseeable harm. Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983) (citing Restatement (Second) of Torts §§341A, 343 & 343A). A possessor of land is subject to liability for conditions he or she knew about only if he or she: “(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger.” Id. (quoting Restatement (Second) of Torts §343. A possessor of land who permits a business invitee onto his or her property retains a duty to not only ensure that he or she will not create a dangerous condition on the land, but must also inspect the premises to make certain that the property is in a reasonably safe condition for use in the manner consistent with the purpose of the invitation. Treadway v. Ebert Motor Co., 292 Pa. Super. 41, 49, 436 A.2d 994, 998 (1981) (citation omitted). “The occupier’s duty is one of due care under all the circumstances. That duty includes the duty to inspect the premises and to discover dangerous conditions.” Id., 292 Pa. Super, at 50,436 A.2d at 998 (citing Durning v. Hyman, 286 Pa. 376, 133 A. 568 (1926)). Certain circumstances could give rise to a heightened duty to inspect the premises beyond a visual inspection, such as the owner of a swimming pool with a diving board may be required to physically inspect the durability of the diving board to ensure its safety prior to conducting a lifeguarding course on the premises because the use of the premises involves a greater likelihood of injuiy. Starke v. Long, 221 Pa. Super. 338, 342, 292 A.2d 440, 443 (1972).

Furthermore, a possessor of land is only liable for injuries that the plaintiff can demonstrate were caused by the condition of the premises. Rogers v. Binkham, 200 Pa. Super. 312, 315, 188 A.2d 821, 822 (1963) (citing Radies v. Reading Liederkranz German Singing & Sport Society, 197 Pa. Super. 509, 178 A.2d 789 (1962)). Merely demonstrating that an accident and injuiy occurred does not prove negligence, the plaintiff bears the burden of demonstrating that the defendant’s negligence actually caused the plaintiffs injuries. Id. (citing Davies v. McDowell National Bank, 407 Pa. 209, 180 A.2d 21(1962)).

In Houston v. Republican Athletic Ass’n, 343 Pa. 218, 22 A.2d 715 (1941), the appellant filed suit seeking damages for the death of her husband caused by a fatal fall as he was descending the stairs leading to the first floor club room of the appellee’s facility. The appellant argued that the fall, which was not witnessed by anyone, was caused by a sliver of wood 3 to 5 inches long on the edge of a step, which caught the decedent’s foot. At the close of the appellant’s evidence at trial, the court issued a compulsory nonsuit because the appellant failed to demonstrate that the decedent’s fall was caused by a defective condition of the appellee’s stairs. The appellant then filed an appeal, which was eventually addressed by the Pennsylvania Supreme Court. The Houston Court reasoned that the appellant was required to demonstrate that the injuries complained of were the result of the appellee’s negligence. Id., 343 Pa. at 220, 22 A.2d at 716 (citations omitted). Even though the appellant set forth a hypothesis as to what she believed happened there is no evidence to demonstrate that the decedent’s fatal injuries were caused by the appellee’s negligence as the evidence was just as consistent with the theory that the decedent tripped or stumbled. Id., 343 Pa. at 221, 22 A.2d at 716. The court then stated, “Under these circumstances, a finding that the fatal injuries of the appellant’s husband resulted from the negligence alleged would, at most, represent nothing but a mere guess or conjecture; hence a verdict for appellant could not be sustained.” Id. Thus, the Houston court held that the appellant failed to present sufficient evidence to establish that the decedent’s injuries were caused by the negligence of the appellee. Id.

In the current case, the plaintiff indicated in her deposition testimony that there may have been a problem with the spring floor because she fell on the padded portion and still injured her elbow. Moreover, in her deposition, defendant Terry A. Zarilla testified that she assembled the spring floor along with defendant Deborah Caparoula, John Caparoula and, her husband, Jim Zarilla. Defendant Zarilla indicated that they never installed a spring floor prior to installing the spring floor at C & Z Gymnastics and Cheerleading Academy. However, she stated that they installed the floor in accordance with the specifications of USA Gymnastics and the manufacturer. Defendant Zarilla also explained that she inspected the floor after installation along with defendant Caparoula, Mr. Caparoula and Mr. Zarilla. She indicated that the spring floor was examined every day to determine if anything was loose or not in normal working order. Every year the defendants close the gym for a week for maintenance on the floor. She also explained that an inspection would reveal any problem with the spring floor because it could be felt by walking on the faulty portion. The plaintiff provided the court with the expert report of M. Gemma Fotia, who has 25 years of experience as a cheerleading advisor. Ms. Fotia explained that inspecting the spring floor once a year was inadequate and it should be inspected on a bi-weekly basis to ensure that it is safe and functioning properly. In her opinion, a failure to do so would create a high risk of injury.

The evidence currently before the court fails to set forth an issue of material fact concerning the condition of the spring floor and its alleged contribution to the plaintiffs injuries. There is no testimony that there was an actual defect in the spring floor other than the plaintiff’s assertion that she was injured after falling onto the floor. The only testimony provided to the court indicates that the floor was installed in accordance with the specification of the USA Gymnastics and the manufacturer. Moreover, defendant Zarilla explained that the floor was inspected eveiy day after installation to make certain that it was in the proper condition for gymnastic and cheerleading activities. The facility is closed once a year for a week to thoroughly inspect and perform maintenance on the spring floor. In addition, defendant Zarilla indicated that it would have been noticeable during the daily inspections if there was a problem with the spring floor. The Defendants did not notice any defects upon their inspections. As such, there is no indication that the Defendants had notice of an alleged defective condition. This extensive routine of inspecting the spring floor meets the standards set forth in Starke for inspecting premises used for activities involving a greater risk of harm. Furthermore, there is no testimony or evidence that any alleged defect in the floor actually caused the plaintiff’s injuries. Ms. Fotia merely asserted that the lack of proper inspection could cause a dangerous condition to occur; however, she did not state that a defect actually existed on the floor to cause the injuries suffered by the plaintiff. Therefore, the court grants the defendants’ motion for summary judgment regarding any claims averred by the plaintiff that her injuries were caused by a defective condition of the defendants’ spring floor.

Next, the defendants argue that the plaintiff has failed to provide sufficient evidence to support her claim that her fall and injuries were caused by a lack of proper supervision by the defendants or their employees.

In order to establish a claim for negligence, a plaintiff must prove the following elements: “(1) the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3) a causal relationship between the breach and the resulting injury suffered by the plaintiff; and (4) actual loss suffered by the plaintiff.” Reeves v. Middletown Athletic Ass’n, 866 A.2d 1115, 1126 (Pa. Super. 2004) (citing Burman v. Golay & Co., Inc., 420 Pa. Super. 209, 616 A.2d 657 (1992)). In Rutter v. Northeastern Beaver County School Dist., 496 Pa. 590, 437 A.2d 1198 (1981), the appellant was injured while participating in a game of “jungle football” which was encouraged by the high school football coaching staff, who also participated in the game. The appellant filed suit against the school district and high school football coaches for a failure to supervise the “jungle football” game. The case proceeded to trial and at the close of the appellant’s case a compulsory nonsuit was granted after the trial court refused to admit the testimony of the appellant’s expert, who was á former football coach and was willing to state that the football coaches’ practices were not in conformity with the rules promulgated by the Western Pennsylvania Interscholastic Athletic League. The appellant filed an appeal which was denied by the Superior Court of Pennsylvania. The Supreme Court of Pennsylvania granted allocatur and reversed the decisions of the lower courts. The Rutter court indicated that the expert testimony should have been admitted at trial to explain the customs and safety standards of high school football teams. Id., 496 Pa. at 598, 437 A.2d at 1202. Moreover, the court determined that there was sufficient evidence to permit a jury to decide the issue of liability by stating, “[A] ‘touch’ football game in which tackling and body blocking occurs, which is initiated and supervised by the football coaches, in which no equipment is used, and which is played by team members attempting to impress coaches who are themselves engaged in the game, may be said to at least present a jury question as to the dangerousness of the game and the negligence of the coaches.” Id., 496 Pa. at 599,437 A.2d at 1202. Therefore, the court reversed the decisions of the trial court and the Superior Court and remanded the case to the trial court. Id.

In the current case, the plaintiff was injured while participating in competitive cheerleading practice after falling from a pyramid stunt. She filed suit claiming that the defendants were liable for failing to properly instruct and supervise her progression when introducing more difficult cheerleading skills. In response, the defendants filed a motion for summary judgment asserting that the plaintiff failed to present sufficient evidence to support that claim because she did not provide an expert report regarding the alleged improper instruction and supervision. The plaintiff then provided the affidavit of M. Gemma Fotia during oral argument, but that did not contain an explanation as to whether the defendant was liable for the plaintiff’s injuries. The court granted the plaintiff an opportunity to file an expert report explaining the expert’s opinion concerning those issues. The Plaintiff subsequently filed the expert narrative report and opinion written by Ms. Fotia, in which she explained that the defendants were negligent in failing to utilize a “hands-on” spotting technique and progressive teaching methods as set forth by the American Association of Cheerleading Coaches & Administrators’ Manual. Ms. Fotia also stated that the defendants did not utilize those mandatory standardized practices when instructing the plaintiff. She explained that the defendants were negligent in failing to properly instruct the plaintiff’s new baser. Ms. Fotia also opined that basic skills were not taught to the plaintiff, such as the “step-up” drill which should have been performed before attempting any type of stunt.

This case is similar to Rutter, in which the court decided that the expert testimony provided sufficient evidence to create a question of fact concerning whether the coaches properly supervised or monitored the “jungle football” game that resulted in the appellant’s injury. In the current matter, the expert narrative report and opinion authored by Ms .Fotia creates a question of fact as to whether the plaintiff was properly supervised and instructed while participating in competitive cheerleading, more specifically, when she was attempting to perform the pyramid stunt with a new baser and she fell causing her injuries. Furthermore, Ms. Fotia’s report creates an issue of fact as to whether the defendants instituted the proper “hands-on” spotting technique and progressive teaching methods set forth by the American Association of Cheerleading Coaches & Administrators’ Manual when instructing the plaintiff. It is apparent that the plaintiff has presented evidence to support her claims of negligent instruction and supervision as the expert testimony indicates the defendants breached their duty of care by failing to utilize the “hands on” spotting technique and progressive teaching methods. Hence, the plaintiff has presented sufficient evidence to create a question of material fact regarding the issue of whether the defendants negligently instructed and supervised the plaintiff’s participation in competitive cheerleading.

For the reasons set forth in this opinion, the defendants’ motion for summary judgment is granted in part and denied in part. The court grants the defendants’ motion for summary judgment concerning the plaintiffs averments that the spring floor contained a defective condition which caused her injuries. However, the court denies the motion for summary judgment regarding all claims that the defendants negligently advised, supervised or instructed the plaintiff and her baser on the proper techniques of cheerleading and performing a pyramid stunt.

ORDER OF COURT

Now this, April 19, 2013, this case being before the court on November 26,2012, and March 25,2013, for oral argument on the motion for summary judgment filed by the defendants, with both parties appearing through their counsel, the plaintiff represented through counsel, Gene G. Dimeo, Esquire and Joseph S. Bellissimo, Esquire and the defendants represented through counsel, Robert J. Grimm, Esquire and Ryan M. Joyce, Esquire and after a consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion for summary judgment is hereby granted in part and denied in part.

2. The motion for summary judgment is hereby granted in part and paragraphs 9a, b, c, d, e, f, g, and those portions of k, 1, m, o, p, q, t and u as they relate to any allegations involving a defective condition in the spring floor, of the second amended complaint filed by the plaintiff are hereby dismissed with prejudice. It is the intention of the court that all claims of the plaintiff that the spring floor contained a defective condition which caused the injuries suffered by the plaintiff are dismissed.

3. The motion for summary judgment as to the remaining claims that the defendant’s negligently advised, supervised and instructed the plaintiff is hereby denied.

4. The prothonotary is directed to serve a copy of this order of court upon counsel of record.

      . A baser is an individual who is a member of a competitive cheerleading team that remains standing on the floor while lifting another member of the cheerleading team into position for a pyramid stunt.

      . A spring floor, as described by Terry Zarilla, contains 4x4 foam blocks covered with two layers of wood that are interlocking and glued to specific locations and covered with a two inch foam mat which is placed on top of the wood.

      . This is a variation of the popular game of two-handed touch football in which the ball carriers could throw any number of laterals or forward passes regardless of their position on the field in relation to the line of scrimmage. There is no equipment worn during “jungle football” games.


author: WETTICK, J.,

text:
    Jackson v. Drew

      C.P. of Bucks County,
    No. [ AXX-XX-XXXXX ]-C.

      James E. DePasquale, for plaintiff

      R. Sean O ’Connell, for defendant Danielle Drew

      Laura R. Signorelli, for defendant Brian Meanor
    April 24, 2013
   WETTICK, J.,

Plaintiff’s motion to consolidate is the subject of this opinion and order of court.

On October 14, 2010, plaintiff sustained injuries in a two-car collision. The injuries included headaches, cervical strain, sprain with right shoulder pain, lumbar strain and sprain, and right knee sprain.

While improving but still being treated, plaintiff was rear-ended in an automobile accident on January 28,2011. Plaintiff alleges that as a result of this second accident, all injuries sustained in the October 14, 2010 accident were exacerbated. In addition, in April 2012, it was determined that plaintiff also suffers from a left shoulder rotator cuff tear, which condition may be medically linked to one, the other, or both accidents.

Plaintiff seeks to consolidate because if the lawsuits are tried separately, in the first lawsuit, the defendant will be attempting to show that the second accident caused any injuries experienced after the second accident, while the defendant in the second lawsuit will be attempting to establish that plaintiff’s current medical condition was caused mostly by the accident which is the subject of the first lawsuit. Thus, because of the finger pointing, plaintiff might not be adequately compensated for her injuries.

Under Pa.R.C.P. No. 213, a court may consolidate actions pending in the same county which involve “a common question of law or fact or which arise from the same transaction or occurrence”:

(a) In actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court on its own motion or on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay.

Defendant Danielle Drew opposes the motion to consolidate. She states that I am barred from consolidating these lawsuits under a ruling of the Pennsylvania Superior Court in Kalker v. Moyer, 921 A.2d 21 (Pa. Super. 2007).

In Kalker, the accidents happened in different counties. Joinder was sought under Pa.R.C.P. No. 2229(b) which reads as follows:

Rule 2229. Permissive Joinder

(b) A plaintiff may join as defendants persons against whom the plaintiff asserts any right to relief jointly, severally, separately or in the alternative, in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences if any common question of law or fact affecting the liabilities of all such persons will arise in the action.

The court did not permit the joinder because the two accidents occurring in two different counties seven months apart were not part of a “series of transactions or occurrences” which may be joined in one county.

Under Rule 2229(b), joinder is permitted only if both of the following requirements are met: the lawsuits arose out of the same series of transactions or occurrences and a common question of law or fact affecting the rights to relief of all such persons will arise in the action.

Under Rule 213(a), on the other hand, consolidation is permitted upon a showing of either a common question of law or fact or a showing that the actions arise from the same transaction or occurrence.

In this litigation, there is a common question of fact, namely what injuries were caused by which accident. Since the actions involve a common question of fact, and since the interests of justice are served by having both lawsuits tried at the same time by the same fact finder, I am granting plaintiff’s motion to consolidate.

ORDER OF COURT

On this 24 day of April, 2013, it is hereby ordered that plaintiff’s motion to consolidate is granted, and the actions at GD-12-008737 are consolidated with the actions at GD-12-008741.


author: FORD, J.,

text:
    JDL Enterprises Unlimited, L.P. v. Zoning Hearing Board of South Whitehall Township

      C.P. of Lehigh County,
    No. 2012-C-4108.

      Erich J. Schock, for appellant.

      Maria C. Mullane, for appellee.

      Kevin T. Fogerty, for intervenor.
    March 1, 2013
   FORD, J.,

This is a zoning appeal involving a dimensional variance. Bruce Ebert, an owner of real property located at 2562 PA Route 309 in South Whitehall Township, filed an application for zoning relief with the Zoning Hearing Board of South Whitehall Township (board). In the application, Mr. Ebert requested, among other things, a dimensional variance to expand the commercial building located on his property. Mr. Ebert currently operates a Sunoco gas station and a convenience store on the property. He sought the dimensional variance to allow him to expand the area of the building on the property to enable him to add a Subway restaurant at the site.

The building that Mr. Ebert wishes to expand was constructed in 1959 by a former owner of the property. The building does not conform to the South Whitehall Township Zoning Ordinance (ordinance) in that it was constructed into the mandated setback areas on two sides of the property. Under sections 12.25(e)(7)(C) and 12.25(e) (6)(D) of the ordinance, expansion of a nonconforming building such as Mr. Ebert’s is allowed so long as the expansion does not exceed 25 percent of the building’s current size. In his application for zoning relief, Mr. Ebert proposed adding 1,064 square feet to the 1,288 square foot nonconforming building. This represented an 83 percent increase in building size which is greater than the 25 percent allowed. Thus, Mr. Ebert sought a dimensional variance.

The board conducted public hearings on Mr. Ebert’s application on May 23 and July 25,2012. At the conclusion of the July 25 hearing, the board voted to grant Mr. Ebert’s application in its entirety, including his request for a dimensional variance. The board confirmed the vote in a written decision issued on September 5, 2012. The written decision included findings of fact and conclusions of law.

On October 5, 2012, JDL Enterprises, L.P. (JDL) began this suit by filing an appeal from the Board’s decision to grant Mr. Ebert a dimensional variance. JDL owns the property directly across Route 309 from Mr. Ebert’s property. JDL owns and operates a Burger King Restaurant on that property. Prior to filing this appeal, JDL appeared at the hearings on Mr. Ebert’s application for zoning relief and opposed the application.

On October 23, 2012, Mr. Ebert filed a notice of intervention in this zoning appeal. On January 8, 2013, JDL filed its brief in support of the zoning appeal. On January 15, 2013, Mr. Ebert filed a brief in opposition to the zoning appeal. The board, the appellee in this case, has deferred to Mr. Ebert in leading the opposition to this appeal and has joined in his brief.

On appeal, JDL asserts that the Board committed an error of law in granting Mr. Ebert a dimensional variance for the following reason:

A review of the record shows no testimony or evidence regarding a physical hardship affecting the Property to justify the Zoning Relief. Rather [Mr.] Ebert primarily testified about the economic hardship he would sustain if the Zoning Board denied [the application] and he cannot expand the building.

(JDL’s brief, P.5.)

When reviewing a decision of a zoning board, the court must determine whether the board abused its discretion or committed an error of law. C & M Developers, Inc. v. Bedminster Township Zoning Hearing Board, 573 Pa. 2, 14, 820 A.2d 143, 150 (2002). If the record includes findings of fact by a zoning board and the court does not take additional evidence, the findings of the board “shall not be disturbed by the court if supported by substantial evidence.” 53 P.S. § 11005-A. Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lantos v. Zoning Hearing Board of Haverford Township, 153 Pa.Cmwlth. 591, 597, 621 A.2d 1208, 1211 (1993).

In Pennsylvania, the requirements for obtaining a variance are defined by 53 P.S. § 10910.2(a). According to that statute, a zoning board may grant a variance if five elements are met: (1) there are unique physical conditions on the property in question; (2) applying the given zoning ordinance to the property with the unique physical conditions makes it impossible for the property owner to make reasonable use of the property; (3) such unnecessaiy hardship has not been created by the applicant; (4) the variance, if granted, will not alter the essential nature of the neighborhood; and (5) the variance represents “the minimum variance that will afford relief and ... represents] the least modification possible of the regulation in issue.”

This case involves a request for a dimensional variance. The Pennsylvania Supreme Court stated:

When seeking a dimensional variance within a permitted use, the owner is asking only for a reasonable adjustment of the zoning regulations in order to utilize the property in a manner consistent with the applicable regulations. Thus, the grant of a dimensional variance is of lesser moment than the grant of a use variance, since the latter involves a proposal to use the property in a manner that is wholly outside the zoning regulation.

Hertzberg v. Zoning Hearing Board of Adjustment of the City of Pittsburgh, 554 Pa. 249, 257, 721 A.2d 43, 47 (1998).

The Pennsylvania Commonwealth Court clarified the Hertzberg decision as follows:

Hertzberg articulated the principle that unreasonable economic burden may be considered in determining the presence of unnecessary hardship. It may also have somewhat relaxed the degree of hardship that will justify a dimensional variance. However, it did not alter the principle that a substantial burden must attend all dimensionally compliant uses of the property, not just the particular use the owner chooses. This well-established principle, unchanged by Hertzberg, bears emphasizing in the present case. A variance, whether labeled dimensional or use, is appropriate “only where the property, not the person, is subject to hardship.”

Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595, 598 (Pa.Cmwlth. 2001) (internal citations omitted).

Contrary to JDL’s contentions, the board heard and considered evidence of unique physical conditions on Mr. Ebert’s property which made it impossible for him to make reasonable use of his property under the current zoning requirements. On this topic, the board stated the following in its written decision approving Mr. Ebert’s application for a dimensional variance:

The subject Property is encumbered with unique physical circumstances and conditions that create unique constraints and obstacles with the development of the Property and thus, create an unnecessary hardship with the Property. The Property is an irregularly-shaped, long and narrow lot that is split-zoned both commercial and residential. The existing Motor Vehicle Service Station use and the one story building was established on the Property in 1959, a time predating the advent of any zoning regulations in 1961 in the Township. A rezoning of the property in 1996 by the Township Board of Commissioners converted the existing Motor Vehicle Service Station use into a permitted Special Exception use (Applicant’s Exhibit A-7). However, while the Applicant’s use on the Property is no longer non-conforming, the Property itself has many nonconforming conditions, including among others, the nonconforming setbacks of the existing building which encroaches into a portion of the front and South side yard setback areas. The prior-existing, nonconforming condition with the existing building... was not created by the Applicant (Mr. Ebert).
The existing building, which is only 1,288 square feet in size, is nonconforming in setbacks and because of this nonconforming condition, the Applicant is limited to a floor area expansion of only 322 square feet under Section 12.25(e)(7)(C) of the Zoning Ordinance. The Applicant testified that such a limited expansion is wholly inadequate for the proposed Subway sandwich shop use. The Applicant testified that a building expansion beyond the floor area permitted under the Zoning Ordinance for a permitted use is necessary in order to allow the Property to remain economically viable.

(Decision of board, 9/5/12, pp. 15-17).

I now address two arguments raised by counsel for JDL at the argument conducted on January 29, 2013. First, counsel for JDL argued that Mr. Ebert, instead of pursuing a dimensional variance, had the option of demolishing the nonconforming building on his property and building a larger building outside of the setback areas mandated by the ordinance. This contention is undercut by the uncontroverted testimony before the board.

At the hearing before the board, Mr. Ebert explained that it would cost him $600,000 to demolish the nonconforming building on his property and construct a new, larger building. Alternatively, Mr. Ebert testified that expansion of the existing building would cost him $140,000. Thus, he explained that the option to construct a new building was not economically feasible. Under Hertzberg, it was proper for the board to consider these economic factors when ruling on Mr. Ebert’s application for a dimensional variance. Furthermore, it was reasonable of the board to conclude that a dimensional variance was appropriate in this situation.

Second, counsel for JDL argued that Mr. Ebert’s application for a dimensional variance must be denied based on the Commonwealth Court’s holding in Yeager v. Zoning Hearing Board of the City of Allentown, 779 A.2d 595 (Pa.Cmwlth. 2001). In Yeager, the Commonwealth Court held that a property owner was not entitled to a dimensional variance where the owner was already operating a profitable car dealership on his property and sought the variance simply to expand his business. Appellant argues that Mr. Ebert, like the property owner in Yeager, seeks the dimensional variance merely to increase his business revenue generated at the property.

Unlike the property owner in Yeager, Mr. Ebert testified that he has not been able to make a profit at his property in over 5 years. He explained that the dimensional variance will enable him to open a Subway restaurant on the property and hopefully generate a profit. This uncontroverted evidence demonstrates that Mr. Ebert, unlike the property owner in Yeager, cannot make reasonable use of the property unless he is granted the dimensional variance.

For all of these reasons, the board acted properly in granting Mr. Ebert’s application for a dimensional variance. Therefore, JDL’s appeal must be denied.


text:
    In re Appeal of Preliminary/Final Major Land Development Plan for Allentown Arena & Event Center

      C.P. of Lehigh County,
    No. 2012-C-1516.

      G. Michael Carr, for appellants.

      Timothy J. Siegfried, for intervenor, Allentown Commercial and Industrial Development Authority.

      Frances A. Fruhwirth, for intervenor, City of Allentown.
    March 7, 2013
   FORD, J.,

Appellants, Whitehall Manor, Inc. (Whitehall), and Linden 515 LP (Linden), filed a notice of appeal to this court from a decision of the City of Allentown Planning Commission (Commission). The decision was announced at a meeting of the Commission on March 13,2012, and it was explained in an approval letter dated March 14, 2012. In the decision, the Commission approved apian for commercial development in downtown Allentown submitted by the Allentown Commercial and Industrial Development Authority (ACIDA). Appellants argued that the Commission erred as a matter of law and abused its discretion in approving the plan.

On December 17, 2012,1 entered an order dismissing appellants’ appeal. Appellants have now filed the current appeal challenging my order of December 17. For the reasons that follow, appellants’ appeal lacks merit and should be dismissed.

Factual and Procedural History

Whitehall owns a leasehold interest in a parcel of real estate located at 12 North 7th Street, Allentown, Pennsylvania 18101. Linden is the owner of real property located at 515 Linden Street, Allentown, Pennsylvania 18104. Abraham Atiyeh is the principal of both Whitehall and Linden.

ACIDA is a corporate body organized pursuant to Article XVI-B of Act 50 of 2009 of the Pennsylvania General Assembly, as amended by Act 26 of 2011, and Act 87 of 2012. ACIDA has a principal place of business at 435 Hamilton Street, Allentown, Pennsylvania 18104.

On February 14, 2012, ACIDA submitted to the City of Allentown Bureau of Planning and Zoning a land development application and plan (development plan). The plan proposed the development of an arena, a hotel, offices and a parking facility on a one city block, 5.34 acre area of downtown Allentown.

On March 13, 2012, the Commission held a public meeting on ACIDA’s development plan. During the meeting, a representative of appellants attended and voiced appellants’ opposition to the development plan. At the close of the meeting, the Commission voted to approve the development plan. This decision was confirmed by way of an approval letter sent from the Commission to ACIDA on March 14, 2012.

On April 10, 2012, appellants filed their pleading entitled “Land Use Appeal Notice” which brought the case to this court. In the appeal, appellants challenged the Commission’s March 13, 2012, decision approving ACIDA’s development plan. Appellants contended that, in approving the development plan, the Commission failed to adhere to the law and abused its discretion.

On April 20, 2012, the City of Allentown (Allentown) filed a notice of intervention to join in opposition to appellants’ appeal. Likewise, on April. 24, 2012, ACIDA filed a notice of intervention in opposition to the appeal. (The Commission, the appellee in this appeal, deferred to ACIDA in leading the opposition to appellants’ appeal.)

On June 7, 2012,1 entered a case management order stating that appellants’ brief in support of the appeal had to be filed by August 28, 2012, that the intervenors’ briefs had to be filed by September 4, 2012, and that argument on the appeal would be held on September 18, 2012.

Appellants did not file a brief in support of their appeal by the August 28, 2012, deadline. ACIDA timely filed its brief in opposition to the appeal on September 4, 2012, and Allentown joined in this brief. When argument on the appeal was held on September 18, 2012, appellants had still not filed a brief. Nevertheless, all counsel agreed that oral argument would proceed and that appellants would be given the opportunity to file their brief following argument. Intervenors were allowed to file amended briefs after review of appellants’ brief.

On October 9, 2012, appellants filed a brief in support of their appeal. On October 17, 2012, ACIDA filed a supplemental brief in opposition to the appeal. Allentown joined in ACIDA’s brief. ACIDA then filed an amended supplemental brief in opposition to the appeal on October 23, 2012.

On December 17, 2012, I entered an order and accompanying opinion denying and dismissing appellants’ appeal. In the opinion, I explained that appellants lacked standing to pursue the appeal. Furthermore, I explained that even assuming appellants possessed standing, all of the issues raised in the appeal lacked merit.

On January 14,2013, appellants filed the current notice of appeal to the Commonwealth Court challenging the order entered on December 17, 2012.

In response to an earlier order, appellants filed a “Concise Statement of Errors Complained of on Appeal” (concise statement) pursuant to Pa.R.A.P. 1925(b) on February 14, 2013.

Discussion and Conclusions of Law

In a land use appeal where the court does not take additional evidence, the court’s review is limited to whether the local agency committed an abuse of discretion or error of law. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. 550, 554, 462 A.2d 637, 639 (1983); and 53 P.S. § 11005-A. The court may not substitute its judgment for that of the local agency unless the agency manifestly abused its discretion. Nascone v. Ross Township Zoning Hearing Board, 81 Pa.Cmwlth. 482, 486, 473 A.2d 1141, 1142 (1984). An abuse of discretion occurs when a local agency’s findings are not supported by substantial evidence. Allegheny West Civic Council, Inc. v. Zoning Board of Adjustment of the City of Pittsburgh, 547 Pa. 163, 167, 689 A.2d 225, 227 (1997). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lantos v. Zoning Hearing Board of Haverford Township, 153 Pa.Cmwlth. 591, 597, 621 A.2d 1208, 1211 (1993).

No additional evidence was presented at the argument on appellants’ appeal. Thus, my review was restricted to the record developed before the Commission.

Standing

In Paragraphs 4, 5 and 6 of the concise statement, appellants allege that I erred in determining that appellants lacked standing to challenge the Commission’s decision to approve ACIDA’s development plan. ACIDA argued that appellants lack standing to appeal the Commission’s approval of the development plan. ACIDA was correct.

In order to assert standing to appeal a land use decision of a local agency, a party must demonstrate that it is “aggrieved” by the decision in question. 53 P.S. § 10913.3; and City of Allentown Zoning Ordinance (ordinance) § 1307.04; see also Miravich v. Township of Exeter, 6 A.3d 1076 (Pa.Cmwlth. 2010) (noting that the same test for determining standing in appeals from zoning boards applies to appeals from planning commissions).

For purposes of land use appeals,

a party is aggrieved if the party can show an interest that is substantial, direct, and immediate. In order to be substantial, there must be some discernible effect on some interest other than the abstract interest all citizens have in the outcome of the proceedings. In order to be direct, the party must show some causation of harm to his interest. In order to be immediate, there must be a causal connection between the action complained of and the injury to the person challenging it.

Spahn v. Zoning Board of Adjustment, 602 Pa. 83, 115, 977 A.2d 1132, 1151 (2009) (internal citations omitted).

In support of the claim that they have standing to bring this appeal, appellants argued in their brief that Whitehall has an office leasehold interest in the Dime Bank Building which is located within the area to be developed pursuant to ACIDA’s development plan. Appellants conceded that the development plan showed the Dime Bank Building as being preserved. However, they noted that Whitehall maintains a sign on the outside of the Dime Bank Building and the development plan did not specifically address preservation of the sign. Further, appellants noted that the property owned by Linden rests in close proximity to the area affected by the development plan. Appellants asserted that,

[t]he development of the Arena will obviously have far reaching impacts on the downtown area of the City (of Allentown). It will generate traffic congestion in an area with an already insufficient traffic network adversely impacting travel to and from the Linden Property. It will impact parking. It will fundamentally and irrevocably alter the character of the neighborhood, and will fiscally impact the neighborhood and City.

(Appellants’ brief, p. 5).

Appellants had the opportunity to develop an evidentiary record to support these claims yet they declined to do so. Therefore, this court was restricted to analyzing appellants’ claims based on the record developed before the Commission. From a review of that record, there was nothing to indicate that appellants’ properties will suffer by the implementation of the development plan.

Appellants’ claims pertaining to Whitehall’s sign on the Dime Bank Building were undercut by appellants’ admission that the development plan included preservation of that building in its current form. Appellants offered no specific evidence as to the location of the sign on the Dime Bank Building and offered no evidence as to how the development plan will adversely affect the sign. Also, appellants’ claims regarding potential traffic and parking issues were unsupported by any evidence. Further, appellants’ interests pertaining to traffic and parking are not “substantial” for purposes of the standing analysis because these concerns are not unique to appellants, but are “abstract interests all citizens have in the outcome of the proceedings.” Finally, appellants offered no evidence to support the general claim that the development plan will “fundamentally and irrevocably alter the character of the neighborhood.” Thus, appellants failed to demonstrate that they possess standing to bring this appeal.

Appellants argued that ACIDA waived any challenge to appellants’ standing in this appeal because a representative for appellants participated at the Commission’s March 13, 2012, public meeting on the development plan and no objection was raised by ACIDA or the Commission to the representative’s participation at the meeting. In making this argument, appellants relied on the Commonwealth Court case of Thompson v. Zoning Hearing Board of Horsham Township, 963 A.2d 622 (Pa.Cmwlth. 2009). In Thompson, the Commonwealth Court held that a landowner waived any challenge to an objector’s standing on appeal where the landowner failed to object to the zoning board’s formal decision to grant the objector party status before the board. Id. at 625.

Appellants’ reliance on Thompson was improper. Here, unlike in Thompson, appellants were never granted party status before the Commission. Appellants’ representative merely attended the Commission’s March 13, 2012, meeting and voiced his concerns pertaining to the development plan. Because the meeting was open to the public and because appellants’ representative made no effort to join appellants as parties to the proceedings before the Commission, the issue did not materialize for ACIDA or the Commission to raise a standing challenge at the March 13 meeting. There was no requirement in law that ACIDA had to raise a standing challenge against appellants before the Commission as a prerequisite to raising a standing challenge on appeal.

For all of these reasons, appellants failed to demonstrate that they possessed standing to pursue this appeal. Therefore, the appeal was properly dismissed.

Substantive Issues

I denied appellants’ appeal because appellants lacked standing to challenge the Commission’s decision to approve ACIDA’s development plan. Nevertheless, assuming arguendo that appellants had standing, I addressed the substance of the claims raised by appellants and determined that all of them lacked merit. In the present appeal, appellants challenge several of my findings in this regard.

In paragraphs 7, 8 and 13 of the Concise Statement, appellants generally contend that I erred in rejecting appellants’ claims that the Commission approved ACIDA’s development plan in a rushed and hurried manner in an effort to prevent interested parties from participating in the approval process. Further, appellants challenge my determination that the Commission, in approving the development plan, adhered to the Pennsylvania Municipalities Planning Code (MPC) 53 P.S. §§ 10101-11202, and the City of Allentown Subdivision and Land Development Ordinance (SALDO). In their brief, appellants contended that the Commission’s reviewprocess of the development plan failed to conform to the MPC and SALDO and that this failure prevented citizens, such as appellants, from participating in the review process. As part of this argument, appellants asserted that Allentown failed to timely respond to a Right-to-Know request purportedly submitted by appellants under Pennsylvania’s Right-to-Know Law, 65 P.S. §§ 67.101-67.3104. Further, appellants argued that the Commission failed to give due consideration to the development plan which was evidenced by the “paltry” nature of the Commission’s review letters for the plan. Appellants contended that the review letters were “not the sort of reviews normally expected in a project of this magnitude.” All of these contentions were meritless.

The Commission adhered to all of the notice provisions and procedural rules governing approval of proposed land development stated in section 10508(5) of the MPC, as well as section 1375.03 of the SALDO. Furthermore, the Right-to-Know request cited by appellants pertained to an earlier development plan submitted by ACIDA which was subsequently withdrawn. That Right-to-Know request had no bearing on the current development plan which appellants’ representative admitted at the March 13,2012, public meeting. Finally, Michael C. Hefele, Director of Planning for the City of Allentown, prepared two review letters for the development plan. Contrary to appellants’ claims, the March 7 and March 12, 2012, letters were thorough and contained comprehensive analyses.

In paragraph 9 of the concise statement, appellants argue that I erred “by concluding that waivers of applicable provisions of the [SALDO] were properly and appropriately granted where there was no hardship of any kind which would justify the grant of waivers.” This contention is vague in that it fails to specify what waivers the Commission improperly granted. Nevertheless, I assume appellants refer to the waiver allowing ACIDA to obtain simultaneous approval for its preliminary and final development plans.

In their brief in support of the appeal, appellants argued that the Commission erred by simultaneously granting approval for both ACIDA’s preliminary and final development plans. While the SALDO generally requires a developer to address all conditions placed on preliminary plan approval prior to submission of a final plan, Section 1371.08 of the SALDO allows an applicant to request a waiver of this requirement. In a February 28, 2012, letter to the Commission, counsel for ACIDA requested such a waiver so that preliminary and final approval of the development plans could be obtained at the same time. The Commission granted this request by letter dated March 14, 2012.

Appellants argued that the Commission abused its discretion in granting the waiver allowing simultaneous preliminary and final plan approval because ACIDA did not show that it would suffer a hardship if the waiver were not granted. Section 1371.08 of the SALDO reads:

Where extraordinary hardships, practical difficulties or unnecessary information for review purposes may result from the strict compliance to Section 1377.24 (pertaining to final plan approval), the Planning Director may vary these requirements provided that such variance shall not have the effect of nullifying the intent and purpose of the regulations.
Here, ACIDA sought the waiver through a written request submitted to the Allentown Director of Planning on February 28, 2012. In this letter, ACIDA described the undue hardship posed by the unique topographic conditions of the property to be developed. The waiver request was further discussed at the public meeting conducted on March 13, 2012. At the meeting, the representative for ACIDA explained that the existing development plan addressed virtually all of the implicated ordinance provisions. Thus, any changes between the preliminaiy and final plans would be minimal and could be discussed at one meeting and addressed through a conditional approval. See N.T., public meeting, 3/13/12, pp. 2, 10. After analyzing this information, the Commission acted within its discretion in determining that it was unnecessary to have a bifurcated preliminary and final plan approval process. See Tioga Preservation Group v. Tioga County Planning Commission, 970 A.2d 1200 (Pa.Cmwlth. 2009) (noting that a planning commission properly grants a waiver where strict enforcement of an ordinance requirement would offer “little or no benefit” to the approval process).

In paragraph 10 of the concise statement, appellants contend that I erred in not finding that the Commission acted improperly in granting ACIDA an exemption from the provisions of the ordinance for purposes of its development plan. Appellants’ contentions pertaining to an alleged exemption are factually inaccurate. The Commission did not grant ACIDA any exemption from the Ordinance. See N.T., public meeting, 3/13/12, pp. 14, 23, 25, 26.

In paragraph 12 of the concise statement, appellants assert that I erred in not finding that the Commission acted improperly in approving ACIDA’s development plan because the plan purportedly was missing various reports, studies and information required by the SALDO. This claim lacks merit.

In their brief in support of their appeal, appellants identify six items that they claim needed to be contained in the development plan. (Appellants also made several other allegations of missing items which I was unable to address because of the vagueness of these contentions.) Contrary to appellants’ claim, all of the items allegedly missing were either provided to the Commission by ACIDA, were required through conditional approval, or were not required under the law. Specifically, ACIDA provided the Commission with all of the following allegedly missing items: (1) the names and addresses of all record owners of tracts to be developed under the development project (Plan Sheet C3); (2) the location, size and invert elevations of the required sewer facilities at the project site (Plan Sheets C4 and C6); and a utility plan and profile drawings (Plan Sheets C7 and C8). Further, the Commission conditionally approved the development plan upon ACIDA’s submission of the following two allegedly missing items: (1) a lot consolidation plan; and (2) “final form” engineering drawings. As to the last item, ACIDA was not required by the Commission to file “statement of adequate methods” under section 1379.0l.C.

Finally, in paragraph 11 of the concise statement, appellants assert that I erred in not finding that the Commission acted unlawfully in approving the development plan because the plan “depicted the construction of buildings over streets and the obstruction and elimination of streets which it did not own.” Although this issue was mentioned in appellants’ “Land Use Appeal Notice” taking the appeal to this court (the court of common pleas), appellants did not provide any argument on this issue or address it in their brief before this court. Therefore, I determined that the issue was waived and did not address it in my opinion dismissing the appeal. Because this issue was not argued before the lower court, it cannot be raised in the present appeal. See Hempfield Township v. Hapchuk, 153 Pa.Cmwlth. 173, 620 A.2d 668 (1993).

In sum, I properly found that the Commission adhered to the law and acted within the bounds of its discretion in approving ACIDA’s development plan. Therefore, appellants’ current appeal should be dismissed.


text:
    Argeros v. Knock on Wood Construction Company

      C.P. of Lehigh County,
    No. 2011-C-2230.

      Erik J. Conrad, for plaintiff.

      Joshua A. Gildea, for defendant.
    March 8, 2013
   FORD, J.,

This is a breach of contract case in which plaintiff, William Argeros, claims that defendant, Knock On Wood Construction Company, improperly erected a Trex deck at his residence in violation of the contract that he entered with defendant. Plaintiff claims that shoddy construction was used which resulted in an unsightly and unsafe deck. Plaintiff seeks a return of the $13,550.00 that he paid to defendant for construction of the deck. Plaintiff has proven his contentions at the non-jury trial which was conducted on November 29, 2012, and Januaiy 24, 2013. The evidence demonstrates that the problems with the deck are so pervasive that repairs alone will be insufficient to correct its deficiencies. Because defendant failed to live up to its contractual obligations to plaintiff, it must return plaintiff’s money to him. I enter a verdict today with this result. In this opinion, I explain the reasons for the verdict.

Findings of Fact

1. Plaintiff, William Argeros, lives at 4117 Emerson Lane, Allentown, Lehigh County, Pennsylvania.

2. Defendant, Knock On Wood Construction Company, is a corporation with its principal place of business at 138 North New Street, Nazareth, Northampton County, Pennsylvania. This corporation, owned by Norman Boell, is in the business of building custom decks.

3. On June 8, 2009, plaintiff and defendant entered a written contract (exhibit P-1) by which defendant agreed to provide materials and build a deck for plaintiff at his Emerson Lane residence. The deck was to be a 16 foot by 21 foot Trex deck. Under the contract, plaintiff agreed to pay defendant $13,550.00 for construction of the deck.

4. By the end of August 2009, plaintiff had paid defendant the full $13,550.00 pursuant to the contract. By that date, defendant had constructed a deck which it represented was built in accord with the contract.

5. In the initial period after construction of the deck, there was a cordial relationship between the parties. Plaintiff thanked Mr. Boell for his efforts by giving him Phillies tickets. However, after plaintiff started to use the deck, he began to notice problems with it. In response to complaints from plaintiff, defendant did additional work on the deck. Defendant did this without additional charge to plaintiff.

6. As time passed, plaintiff detected more problems with the deck. Plaintiff brought some of these issues to the attention of defendant. Defendant offered to come to plaintiff’s residence to attempt to correct the problems. However, plaintiff did not respond to defendant’s offers. Rather, plaintiff initiated the present suit.

7. When defendant excavated the holes for installation of the support posts and any concrete footings that it may have installed (it is unclear whether concrete footings were installed at the required locations), it left the holes open for one-and-a-half days for inspection by the South Whitehall Township residential building inspector. Defendant did not advise plaintiff nor the inspector that the holes were available for inspection. Defendant then proceeded with further construction oblivious to whether an inspection of the holes and any concrete footings was conducted.

8. The support posts for the deck are not mechanically anchored to any concrete footings. Such attachment would have added stability to the deck.

9. The stair stringers rest on the ground instead of on concrete footings.

10. The support posts for the deck extend into the ground subjecting them to quicker onset of deterioration. The posts should have been installed on concrete footings that extend above ground level.

11. The girders or beams are not carriage bolted to the support columns. Carriage bolting would provide proper support against vertical and lateral loads. Instead, the girders are attached to the support columns by the random use of nails and screws.

12. Several of the fasteners used on the deck are over-driven which has led to cracking of the wood used on the deck and can lead to further cracking.

13. A deck ledger attaches the deck to a wall of the residence using nails and screws. The ledger was installed outside or over the exterior siding of the house wall. Gray plastic flashing was installed over the top edge of the ledger. However, there was no flashing installed behind the ledger, creating the potential for water leakage.

14. Although the deck ledger is attached to the house wall, the deck utilizes two rows of support posts and girders. This feature suggests that defendant constructed the deck as a free-standing structure. To the extent that defendant designed the deck to be free-standing, the installation of bracing was necessary for stability. This was not done.

15. Joists are attached to the ledger board and rim joists with nails. Joist hangers should have been used to make this aspect of the deck firmer.

16. The stair stringers as attached to the deck are unsafe. Wooden blocking with nails, screws and some lag bolts were used. Proper hanging of the stair stringers required use of approved adjustable stair hangers. The wooden blocking that was used is unsightly, is of irregular shape and is splitting along its length where the hardware was installed in the blocking.

17. Some of the spindles in the railing system around the deck are spaced more than four inches apart. This creates the possibility of body parts’ getting stuck in those rails that are separated by more than four inches.

18. There is side to side movement of the railing with minimum pressure. This creates a hazard of falling through the railing for anyone who may lean against it with considerable pressure.

19. Some of the Trex boards used on the deck are light-colored while others are dark-colored. Each board is fastened to the deck with center screws. According to Trex specifications, the boards should have been attached to the deck with screws placed in each joist in a zigzag pattern. This recommended configuration prevents the boards from rocking.

20. The two gates to the two sets of stairs leading from the deck cannot be completely closed due to the uneven and imprecise construction of the deck railing system.

21. When one stands on the deck, that individual feels an unsteadiness to the structure.

22. The completed deck did not pass inspection by the South Whitehall Township building inspector because of the existence of violations of the construction code adopted by the township. Violations found by the inspector stemmed from certain deficiencies noted above, separately or in various combinations. The inspector posted a notice on the deck forbidding use of it.

23. The deck is unsafe for its intended use and is unsightly at various locations.

24. The unsafe conditions on the deck and the poor workmanship of it are pervasive. The additional remedial work suggested by defendant is insufficient. Only demolition of this deck and construction of a new deck can provide plaintiff with the deck for which he contracted with defendant.

Discussion and Conclusions of Law

In count I of the complaint, plaintiff contends that defendant breached the contract entered by the parties by constructing a defective deck at plaintiff’s residence. “[F] or a plaintiff to successfully maintain a cause of action for breach of contract requires that the plaintiff establish: (1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” Gorski v. Smith, 812 A.2d 683, 692 (Pa. Super. 2002).

The evidence demonstrates that plaintiff contracted with defendant for construction of a deck which conformed to Trex specifications. In every construction contract such as this, the builder gives an implied warranty that it will do the work in a skillful, careful and workmanlike manner and that the structure will be reasonably suitable for its purpose. See Metropolitan Edison Company v. United Engineers & Constructors, Inc., 4 Pa.D.&C.3d 473 (C.P. Philadelphia 1977); and Pontiere v. James Dinert, Inc., 426 Pa. Super. 576, 627 A.2d 1204 (1993). Instead, plaintiff received, for the $13,550.00 that he paid, a deck that is unsafe and unsightly. It did not pass muster with the South Whitehall Township building inspector who found it unstable and in violation of its code. The failure to construct a structurally sound deck amounts to a failure of consideration by defendant and constitutes a breach by defendant of the parties’ contract.

I made a site visit to plaintiff’s home on December 12, 2012. I inspected under the deck, climbed the steps and walked on the deck. Lay person that I am, it was apparent that many parts of this deck were assembled without proper workmanship. There was a lack of precision in the placement of nails, screws and bolts. The size of bracing was not uniform. The placement of beams on posts was not precise and uniform. Particularly unsightly was the irregular wood blocking which was cracked or split at spots. When I walked under the deck and looked up at its underside, I observed the use of a patchwork of construction materials. The workmanship lacked the exactness that a reasonable person would expect from a corporation holding itself out as skilled in constructing decks.

Most importantly, the deck is unsound. In an effort at stability for the stairs to the deck, defendant relied on non-uniform wood blocks that are cracked because of the metal hardware placed in them. The railings around the deck sway with any substantial force placed upon them. When one stands on the deck itself, its unsteadiness can be felt. The gates to the two sets of stairs leading from the deck cannot be closed because of the poor construction of the railings.

In sum, the problems with the deck are pervasive and fundamental. The proposal made by defendant to correct given areas on the deck is insufficient to give plaintiff the benefit of his bargain with defendant. Thus, plaintiff is entitled to receive from defendant a return of the money he paid.

Among the defenses offered by defendant is that plaintiff has failed to maintain the deck for the three years that this dispute has existed. Since plaintiff was barred from use of the deck by the South Whitehall Township inspector on November 24, 2010, it is true that there has been no use or maintenance of it. The deck has been exposed to the elements over those years. However, deficiencies in the deck include significant structural problems which originated from poor workmanship, not exposure to the elements. More patchwork will not give plaintiff the deck about which the parties contracted. Additionally, it is no defense that plaintiff initially paid for the work of defendant prior to discovering its deficient nature. See Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984) (involving a breach of contract action premised on the discovery of latent defects).

In count II of the complaint, plaintiff asserts a claim of unjust enrichment. However, because a written contract exists between the parties, plaintiff cannot succeed on his claim for unjust enrichment. See Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. 1999).

Finally, in count III of the complaint, plaintiff alleges that defendant violated the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL), 73 P.S. §§ 201-1 — 201-9.3, by representing, among other things, that it would construct the deck according to Trex specifications. Under the statute, plaintiff seeks a return of the $13,550.00 he paid to defendant as well as treble damages and attorney’s fees for bringing this suit. While plaintiff is entitled to a return of the $13,550.00, the award of treble damages and attorney’s fees under the UTPCPL is discretionary with the court. 73 P.S. § 201-9.2. An award of treble damages under the UTPCPL is appropriate where there is a showing of “intentional or reckless, wrongful conduct.” Schwartz v. Rockey, 593 Pa. 536, 557, 932 A.2d 885, 898 (2007). Because defendant was careless and nothing more and because plaintiff made it clear that he really only seeks a return of his money, plaintiff is made whole through his contract action without any additional relief under the UTPCPL.