Detwiler v. Larsen

7 Pa. D. & C.5th 468
CourtPennsylvania Court of Common Pleas, Berks County
DecidedFebruary 25, 2009
Docketno. 08-2652
StatusPublished

This text of 7 Pa. D. & C.5th 468 (Detwiler v. Larsen) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Berks County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Detwiler v. Larsen, 7 Pa. D. & C.5th 468 (Pa. Super. Ct. 2009).

Opinion

SCHMEHL, J.L., P.J.,

This matter arose from a breach of contract, breach of warranties, fraud and unfair trade practice action, wherein plaintiffs/ [469]*469appellants Gary R. Detwiler and Diana Detwiler alleged that in 2006, defendant/appellee Jason Larsen t/d/b/a American Remodeling installed defective windows in plaintiffs’ home. Plaintiffs claimed that this work was done pursuant to a written contract signed by themselves and defendant in 2006 (the contract). In their March 6, 2008 complaint, plaintiffs also alleged that the defendant knew or should have known of the defect in the product, had substandard workmanship, and that defendant’s attempts to correct the problem were ineffective. Additionally, plaintiffs referenced the “Starmark” manufacturer’s warranty that plaintiffs signed at the time of the contract. Finally, plaintiffs alleged that their home had been rendered cold and drafty as a result of the faulty windows.

Defendant filed preliminary objections to plaintiffs’ complaint, and supporting brief, on April 21,2008. The basis of defendant’s objections was grounded in the fact that Jason Larsen the individual was not a party to the contract between plaintiffs and defendant. Instead, the party to the contract with plaintiffs was the corporation of American Remodeling and Roofing Inc., a Pennsylvania corporation which traded under the fictitious name “American Remodeling.” Because it was the corporation which signed the contract with plaintiffs, the defendant alleged that plaintiffs did not assert a cause of action upon which relief could be granted against Jason Larsen. Further, defendant indicated that the Starmark warranty plaintiffs signed was a warranty provided by and entered into with the window manufacturer Starmark, and not American Remodeling.

Defendant also argued that the fraud and unfair trade practice claims of plaintiffs’ complaint were insufficient, [470]*470in that plaintiffs had not pled facts which could support the elements of either claim. Similarly, defendant asserted that plaintiffs did not allege sufficient facts to justify an award of punitive damages. Finally, defendant raised improper venue, pointing to the forum selection clause in the contract, which provided that any action be brought in Schuylkill County, and insufficient pleading, along with a motion to strike impertinent matter.

Plaintiffs filed preliminary objections of plaintiffs to preliminary objections of defendants, and supporting brief, on May 22, 2008, the former of which were later overruled by the court. Plaintiffs argued that defendant’s preliminary objections should be dismissed or stricken because: defendant endorsed them with a notice to plead in violation of law and rule of court; defendant failed to comply with local Rules of Civil Procedure; and that the preliminary objections should be overruled because they had no merit.

Plaintiffs filed answers to preliminary objections on May 27,2008, in which plaintiffs asserted that the complaint was not legally insufficient, set forth valid claims against defendant, stated a valid cause of action against defendant, stated a valid claim for breach of various warranties, stated a valid fraud claim against defendant, stated a valid claim against defendant under Pa. UTP-CPL, and properly included treble damages. Further, plaintiffs said that venue was proper in Berks County.

Defendant filed answers to plaintiffs’ preliminary objections to defendant’s preliminary objections on June 9, 2008, along with a supporting memorandum. In defendant’s answers and memorandum, defendant held three positions: it was proper for Jason Larsen to endorse [471]*471his preliminary objections with a notice to plead, because one of his objections raised “improper venue”; plaintiffs’ preliminary objections alleging a violation of Berks County Rules of Civil Procedure should be dismissed as moot, as the court had already addressed this issue; and plaintiffs’ preliminary objections based upon alleged “lack of merit” should be overruled as no such objection existed.

On June 30, 2008, this court entered an order which overruled plaintiffs’ preliminary objections to the defendant’s preliminary objections, and ordered the plaintiffs to file an answer to the defendant’s preliminary objections. On July 21, 2008, plaintiffs filed a revised answer to defendant’s preliminary objections, accompanied by a supporting brief. In these answers and brief, plaintiffs claimed that: defendant’s demurrers should be overruled because plaintiffs clearly stated valid claims against defendant; defendant’s preliminary objection to venue should be overruled because plaintiffs are Berks County residents; defendant’s preliminary objection alleging insufficient specificity of the pleading should be overruled because the complaint was sufficiently detailed to enable defendant to defend against plaintiffs’ claims; and defendant’s preliminary objection which moved to strike impertinent matter should be overruled because plaintiffs’ facts pled in their complaint were pertinent.

This court heard arguments by both parties at a hearing on defendant’s preliminary objections, and plaintiffs’ answers thereto, on September 2, 2008. On September 22, 2008, after hearing held, this court entered an order sustaining defendant’s preliminary objections, and dis[472]*472missing plaintiffs’ complaint for failing to set forth a cause of action against Jason Larsen.

Subsequently, plaintiffs filed a notice of appeal on October 22, 2008, appealing this court’s September 22, 2008 order. Plaintiffs filed a concise statement of matters complained of on appeal on November 6,2008. In plaintiffs’ concise statement, the sole argument made was that “plaintiffs believe that the court erred on the law because if plaintiffs’ factual allegations are admitted as true, as is proper in the context of a demurrer, those allegations would, in fact, support a finding of defendant’s personal liability.”

It is well-settled law that in considering a preliminary objection in the nature of a demurrer to a complaint, a court must accept as true all well-pleaded facts and allegations in the complaint and all reasonable inferences drawn from those facts and then determine whether the facts pleaded are legally sufficient to permit the action to continue. Crozer Chester Medical Center v. Department of Labor and Industry, 955 A.2d 1037, 1040 n.1 (Pa. Commw. 2008), citing Fordham v. Department of Corrections, 943 A.2d 1004, 1006 n. 2 (Pa. Commw. 2008). A court “reviewing preliminary objections may not only consider the facts pled in the complaint, but also documents or exhibits attached to it.” Lawrence v. Pennsylvania Department of Corrections, 941 A.2d 70, 71 (Pa. Commw. 2007) citing Diess v. PennDOT, 935 A.2d 895 (Pa. Commw. 2007). Furthermore, when any claim or defense is based upon a written agreement, such as the contract in this case, a plaintiff must attach a copy of the writing to the complaint. Pa.R.C.P. 1019(i). In considering defendant’s preliminary objec[473]

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Bluebook (online)
7 Pa. D. & C.5th 468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/detwiler-v-larsen-pactcomplberks-2009.