IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOHNSON SEWER AND DRAIN ) CONTRACTORS, INC. ) T/A ROTO-ROOTER, ) ) Plaintiff, ) ) C.A. No. S22C-09-025 MHC v. ) ) GINA GAMBARDELLA and MARCUS ) A SKINNER, ) ) Defendants. )
OPINION & ORDER
Submitted: March 20, 2025 Decided: June 24, 2025
Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston, LLC, 405 N. King Street, Suite 500, The Renaissance Center, Wilmington, DE 19801
Gina Gambardella, Pro Se, 30099 Stage Coach Circle, Milford, DE 19963
CONNER, J.
1 Plaintiff Johnson Sewer and Drain Contractors, Inc. t/a Roto Rooter has
moved for summary judgment against Defendant Gina Gambardella over a contract
dispute for services performed on a house in Milford, Delaware (the “Property”).
The Property is deeded to Defendant Marcus A. Skinner but Defendant Gina
Gambardella currently resides in the house alone.
FACTS
In October of 2021, Defendant Gambardella returned from a vacation to find
the Property flooded from a septic overage.1 Through her insurance with Allstate,
Defendant Gambardella retained a company, The Restoration Guys (“TRG”), to
repair damage and remove items from her home.2 TRG placed the items in on-site
storage units known as “PODS” to be cleaned.3 Defendant Gambardella testified
that TRG failed to clean the items put into the PODS, lost or destroyed items, and
otherwise failed to properly perform under the contract.4 Ultimately, after prodding
by Defendant Gambardella, Allstate terminated TRG from the project.5
1 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 31:2–11. 2 Id. at 35:20–23, 37:5–9. 3 Id. at 44:16–19. 4 Id. at 44:16–45:8. 5 Id. at 47:2–12. 2 Plaintiff was hired to work on the Property after TRG was fired. The Court
has been provided with three documents signed in connection with this litigation
dispute.
First, Plaintiff and Defendant Gambardella signed an agreement dated
February 28, 2022, titled “Water Extraction Agreement.”6 The Water Extraction
Agreement does not define the scope of services, but instead cites a separate
document known as the Emergency Work Authorization that specifies the water
extraction services to be provided.7 This Court has not been provided with the
Emergency Work Authorization or any other document itemizing the work
performed by Plaintiff. Under Section 5(c)(iii), “[w]ithin 10 days after [Defendant
Gambardella’s] receipt of the settlement payment from [her] insurance carrier, [she]
will pay [Plaintiff] the remaining amount due, including any amount not covered by
the insurance.”8
Second, on March 31, 2022, Defendant Gambardella signed a one-page
document with Plaintiff’s letterhead (the “Storage Liability Release”) which noted
that Plaintiff did not have access to the PODS that TRG left behind.9 The Storage
Liability Release explained Plaintiff would assume billing responsibilities for the
6 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. A. 7 Id. at § 1(a). 8 Id. at § 5(c)(iii). 9 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. B. 3 units via a transfer of custody from TRG until Plaintiff reached substantial
completion of the services for which Plaintiff was contracted, then transfer billing
responsibilities to Defendant Gambardella.10
Third, the parties signed a document titled Certificate of Satisfaction and
Direct Payment Authorization (hereinafter “Certificate of Satisfaction”) dated May
9, 2022.11 This document reads:
I acknowledge that water extraction, structural drying and or Microbial remediation services provided by [Plaintiff] at the [Property], have been completed to my satisfaction and that payment is now owed to [Plaintiff]. I Further [sic] certify that [Plaintiff] has furnished all labor and material for the services as specified in the “Emergency Work Authorization.” I hereby authorize [Plaintiff] to invoice my insurance carrier directly and authorize the insurance carrier to make payment directly to [Plaintiff.] I understand and agree that the deductible and any shortfalls in insurance coverage are my responsibility and are owed to [Plaintiff] on or before the 10th day after receipt of settlement payment from your insurance carrier.12
Although Defendant claims she does not remember signing the document,13
Defendant Gambardella has acknowledged her signature is on the Certificate of
Satisfaction14 and she has no evidence that the signature was forged.15
10 Id. 11 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. G. 12 Id. 13 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 74:7–8. 14 Id. at 73:17–74:10. 15 Id. at 78:6–8. 4 PROCEDURAL POSTURE
Plaintiff filed its original complaint on September 29, 2022. On December 1,
2022, the complaint was amended to add Defendant Skinner. After much delay,
Defendant Gambardella finally answered the complaint on May 5, 2023. However,
Defendant Gambardella’s answer did not respond to all allegations in Plaintiff’s
complaint. Thus, on July 7, 2023, this Court ordered that Defendant Gambardella
admit all allegations to which she failed to respond. One of these admissions is
paragraph 10, which states: “On or about April 8, 2022, Roto-Rooter completed its
mold remediation and contents cleaning services on the Property.” After retaining
Dean Campbell, Esquire, Defendant Gambardella submitted an amended answer and
counterclaim on December 18, 2023, which still noted the court-ordered admissions.
Plaintiff’s complaint as amended on December 1, 2022, alleges four counts,
only one of which, Quantum Meruit, is against Defendant Marcus A. Skinner.
Default judgment was entered against Defendant Skinner on June 2, 2023.
According to Defendant Gambardella’s deposition, Defendant Skinner no longer
lives in the house and signed a quitclaim deed in 2019 which was apparently not
recorded.16 Defendant Gambardella also testified that Defendant Skinner is aware
of the default judgment and told her to handle it.17
16 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 13:24–15:23. 17 Id. at 21:3–6. 5 As to the three remaining counts against Defendant Gambardella, Count I is
breach of contract for failing to pay Plaintiff for its services. Count II is breach of
contract for failure to pay within ten days of Defendant Gambardella receiving the
check from Allstate. Count III is for conversion, claiming Roto-Rooter had a
possessory right to the funds which Allstate provided Defendant Gambardella and
she deprived Plaintiff of that possessory right by wrongfully withholding those
funds.
On March 14, 2024, the parties stipulated that mediation would be conducted
prior to May 31, 2024.18 Mediation never occurred. Instead, the parties filed
dispositive motions and other motions for the Court’s consideration. On September
19, 2024, the Court advised that no further court action would occur until mediation
was conducted in good faith.19 On March 11, 2025, Dean Campbell, Esquire, filed
a Motion to Withdraw as counsel.20 In the Motion he noted that mediation was
scheduled for March 28, 2025. On March 21, 2025, the Motion to Withdraw was
granted.21 The mediation did not occur due to Defendant Gambardella failing to pay
her portion of the fee.22 On March 20, 2025, the Court docketed a Pro Se request by
Defendant Gambardella to bypass mediation due to hardship.23 On April 24, 2025,
18 D.I. 47 19 D.I. 66 20 D.I. 73 21 D.I. 76 22 D.I. 75 23 D.I. 77
6 Defendant Gambardella advised the Court of her intention to proceed Pro Se.24 The
Court can only conclude that Defendant has continually engaged in acts of delay
throughout the entire process. The final act is Defendant Gambardella’s refusal to
engage in the mediation which she agreed to on March 14, 2024. Due to Defendant
Gambardella’s conduct, the Court is compelled to rule on Plaintiff’s Motion for
Summary Judgement.
Plaintiff’s Motion for Summary Judgment against Defendant Gambardella
alleges that it is undisputed that Plaintiff performed work on the Property, that
Defendant Gambardella signed the Water Extraction Agreement, Storage Liability
Release, and Certificate of Satisfaction, and that she is withholding the funds she
received from Allstate. Plaintiff alleges that Defendant Gambardella was
contractually and legally obligated to disburse those funds in accordance with the
Water Extraction Agreement, Storage Liability Release, and Certificate of
Satisfaction, and her failure to do so was a breach of contract.
Defendant argues that there are two issues of fact that preclude summary
judgment: (1) the scope of the contract, both as written and performed, and (2) that
Plaintiff fails to specify its exact damages in Plaintiff’s motion for summary
judgment.
24 D.I. 79
7 Standard of Review
Under Superior Court Civil Rule 56, the burden of proof on a motion for
summary judgment falls on the moving party to establish that “. . . there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.”25 If this initial burden is satisfied, then the burden shifts to the non-
moving party to establish the existence of one or more genuine issues of material
fact.26 All facts and reasonable inferences must be considered in a light most
favorable to the non-moving party.27 However, there is no issue for trial unless there
is sufficient evidence favoring the non-moving party for a jury to return a verdict for
that party.28 If the evidence is merely colorable or not significantly probative,
summary judgment may be granted.29
Analysis
a. Plaintiff is entitled to summary judgment as to the liability issue of the
breach of contract claims.
25 Super. Ct. Civ. R. 56(c); see e.g., Quality Elec. Co., Inc. v. E. States Constr. Serv., Inc., 663 A.2d 488 (Table) (Del. 1995). 26 Super. Ct. Civ. R. 56(e); see e.g., Heasley v. Allstate Prop. and Cas. Ins. Co., 2022 WL 951259 (Del. Super. Mar. 28, 2022). 27 Heasley v. Allstate Prop. and Cas. Ins. Co., 2022 WL 951259 at *2 (Del. Super. Mar. 28, 2022) (citing Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. 1986)). 28 Harmony Mill Ltd. P’ship v. Magness, 1990 WL 58149, at *3 (Del. Super. May 1, 1990). 29 Id. 8 Although Defendant Gambardella does not necessarily recall signing all three
documents, there is no genuine dispute that her signature is on the Water Extraction
Agreement, Storage Liability Release, and Certificate of Satisfaction. Defendant
admitted that the work was completed. There also is no genuine dispute that
Defendant Gambardella withheld the funds she received from Allstate to pay
Plaintiff and withheld them for more than ten days, which is a direct violation of her
payment obligations under Section 5(c)(iii) of the Water Extraction Agreement.
Defendant Gambardella challenges the scope of the Water Extraction
Agreement by highlighting limitations provisions in the agreement which are
inconsistent with the services Plaintiff claims were within the scope of the
agreement. Section 2(a) states that “ [Plaintiff’s] sole responsibility is to extract
existing water and to dry wet floor coverings and structural components. . . . We are
not responsible under this agreement to fix, repair or replace damaged property.”30
Section 2(c) provides “[Plaintiff is] not being retained under this agreement to
address mold. . . .”31 Meanwhile, Plaintiff specifically refers to its performance as
mold remediation and contents cleaning services in its complaint and motion for
summary judgment.
30 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. A at § 2(a). 31
9 Defendant Gambardella also challenges the operability of the Certificate of
Satisfaction by saying that the document was signed prematurely. Defendant
Gambardella argues that the work had not been scheduled or started as of May 9,
2022. This runs contrary to her admission of paragraph 10 of the complaint: “On or
about April 8, 2022, Roto-Rooter completed its mold remediation and contents
cleaning services on the Property.”
“Judicial admissions are recognized under Delaware law. Judicial admissions
are not a means of evidence but a waiver of all controversy and therefore a limitation
on the issues.”32 Judicial admissions operate as an unassailable statement of fact that
narrows the triable issues in the case.33 However, judicial statements “. . . are limited
to factual matters in issue, not statements of legal theories or conceptions.”34 Thus,
judicial admissions generally do not apply to contractual interpretation. 35
The Court cannot allow Defendant Gambardella to challenge the validity of
the Certificate of Satisfaction by reversing her admission of paragraph 10 of the
complaint. Considering this is the only challenge Defendant Gambardella has for
32 Ervin v. Vesnaver, 2000 WL 1211201, at *2 (Del. Super. June 20, 2000) (citations omitted). 33 BE & K Eng’g Co., LLC v. Rocktenn CP, LLC, 2014 WL 186835, at *7 (Del. Ch. Jan. 15, 2014) (quoting Merrit v. United Parcel Serv., 956 A.2d 1196, 1202 n.18 (Del. 2008)). 34 InterMune, Inc. v. Harkonen, 2023 WL 3337212, at *21 (Del. Ch. May 10, 2023) (quoting Levinson v. Del. Comp. Rating Bureau, Inc., 616 A.3d 1182, 1186 (Del. 1992)). 35 Id. 10 the Certificate of Satisfaction, this Court finds no genuine dispute to the validity of
the Certificate of Satisfaction.
Defendant Gambardella’s challenges in interpreting the scope of the Water
Extraction Agreement are not similarly barred. The scope of the Water Extraction
Agreement being defined by an outside document referred to as the Emergency
Work Authorization and the limitations in Section 2 potentially overlapping with the
services described are both unresolved factual issues in interpreting the scope of the
Water Extraction Agreement.
However, while there are genuine factual issues regarding the scope of the
Water Extraction Agreement, these issues are not material to the determination of
liability. Defendant Gambardella’s signing of the Certificate of Satisfaction
followed by intentionally ignoring Plaintiff’s attempts at follow-up communication
are uncontested facts which ultimately entitle Plaintiff to summary judgment. The
Certificate of Satisfaction and subsequent ignoring of Plaintiff’s communication
estop Defendant from reversing her position that she was satisfied with the work
performed, barring her from challenging that Plaintiff underperformed or defectively
performed. The Certificate of Satisfaction and subsequent ignoring of Plaintiff’s
communications also serve as an acquiescence to any of Plaintiff’s performance that
potentially exceeded the scope of the original contract. Ultimately, the Certificate
of Satisfaction and Defendant Gambardella’s subsequent actions bar her from 11 challenging the scope of Plaintiff’s performance under the Water Extraction
Agreement. As there are no genuine disputes of material facts, summary judgment
for liability as to Counts I and II for breach of contract should be granted in
Plaintiff’s favor.
Defendant Gambardella’s own testimony was that she knew that the Plaintiff
planned to stop working on the project unless it got paid for the work already
performed.36 Defendant Gambardella then signed the Certificate of Satisfaction.
which states that she was satisfied with the work performed and that payment is
owed.37 Defendant Gambardella testified that after the Certificate of Satisfaction
was signed, she actively ignored Plaintiff when Plaintiff followed up on payment.38
Defendant Gambardella then mentions one phone call in June telling Plaintiff that
“. . . outstanding balances are paid when the work is completed,” then ignoring
Plaintiff’s further follow ups to resolve the situation.39 Defendant Gambardella
explained “If I saw an email come in from [Plaintiff] at this point in July [2022], I
probably didn’t even open it up.”40 Defendant Gambardella next explained that she
did not communicate with anyone regarding the matter for nine months while her
36 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 63:19–64:14. 37 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. G. 38 Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 88:9–20; 105:2– 14. 39 Id. at 105:2–14; 115:5–116:5. 40 Id. at 116:20–21. 12 insurance company was ignoring her.41 Defendant Gambardella then left the
basement with no air conditioning for two years and the mold worsened.42
Subsequently, she had several other contractors perform $100,000 worth of work on
the Property.43
Estoppel and acquiescence are equitable defenses which are available to both
equitable and legal claims,44 and thus the Delaware Superior Court has asserted
jurisdiction over such claims.45
Estoppel arises when a party to a transaction by word, deed, or silence
conducts themself in such a manner that the law forbids enforcement of a claim
arising but for the estoppel.46 Estoppel applies when a party lacks knowledge and
the means to acquire knowledge of the truth of the facts in question, relies upon the
conduct of the other party, and suffers a prejudicial change of position in
consequence thereof.47
To the degree Defendant Gambardella challenges that Plaintiff
underperformed or defectively performed under the contract, Defendant
41 Id. at 119:23–120:14. 42 See id. at 129:19–113:12. 43 Id. at 121:23–122:18. 44 See XRI Inv. Hldgs. LLC v. Holifield, 283 A.3d 581, 637–641 (Del. Ch. 2022). 45 See e.g., Harmony Mill Ltd. P’ship v. Magness, 1990 WL 58149, at *5 (Del. Super. May 1, 1990); Mizel v. Xenonics, Inc., 2007 WL 4662113, at *7–8 (Del. Super. Oct. 25, 2007). 46 Harmony Mill Ltd. P’ship v. Magness, 1990 WL 58149, at *5 (Del. Super. May 1, 1990) (citing Timmons v. Campbell, 111 A.2d 220 (Del. Ch. 1955)). 47 Id. (citing Wilson v. Am. Ins. Co., 209 A.2d 902, 904 (Del. 1965)). 13 Gambardella is estopped from reversing her own signed satisfaction with the work.
Defendant Gambardella signed the Certificate of Satisfaction stating that she was
satisfied with the work performed. She then ignored Plaintiff’s follow-ups, minus
one phone call where she said to finish the work without further explanation as to
what work needed to be finished. Defendant Gambardella then allowed the mold
situation to worsen for years as she had several other contractors perform $100,000
worth of work. Plaintiff had no knowledge of what work Defendant Gambardella
had contested, relied upon Defendant Gambardella’s signature and subsequent lack
of communication, and thus had no opportunity to assess the work with which
Defendant Gambardella was dissatisfied before years of Defendant Gambardella
neglecting the basement and hiring other contractors with no accounting for
Plaintiff’s unfinished work. At this point in time, Plaintiff is prejudiced by
Defendant Gambardella’s inconsistent satisfaction and dissatisfaction. Plaintiff no
longer can reasonably remedy any defect of its performance or even assess what
possible damages Defendant Gambardella would have suffered separate from the
worsening preexisting basement issues and separate from work performed by TRG
or the contractors hired after Plaintiff. Defendant Gambardella agreed that the work
was completed to her satisfaction and thus she is estopped from reversing her
position by claiming Plaintiff underperformed or defectively performed under the
contract.
14 Acquiescence applies where a complainant has full knowledge of their rights
and the material facts and either (1) remains inactive for a considerable time; (2)
freely does what amounts to recognition of the complained of act; or (3) acts in a
manner inconsistent with the subsequent repudiation, which leads the other party to
believe the act has been approved.48 Applying acquiescence requires a fact-intensive
analysis, often depending on evaluating the knowledge, intention and motivation of
the acquiescing party.49
To the degree Defendant Gambardella argues that Plaintiff performed beyond
the scope of the agreement, her subsequent actions acquiesced to that
overperformance. Defendant Gambardella remained inactive for a considerable time
while consciously ignoring Plaintiff’s communications. Defendant Gambardella
also freely signed the Certificate of Satisfaction which recognizes and approves of
the work as actually performed by Plaintiff, overperformance or not. These actions
also are inconsistent with the subsequent repudiation which led Plaintiff to believe
performance had been approved. Defendant Gambardella’s behavior does not just
satisfy one of the three scenarios in which acquiescence applies, her behavior
satisfies all three. Thus, to the degree Defendant Gambardella contends that Plaintiff
48 Mizel v. Xenonics, Inc., 2007 WL 4662113, at *7 (Del. Super. Oct. 25, 2007) (quoting Bakerman v. Sidney Frank Importing Co., Inc., 2006 WL 3927242, at *17 (Del. Ch. Oct. 10, 2006, revised Oct. 16, 2006)). 49 Julin v. Julin, 787 A.2d 82, 84 (Del. 2001). 15 performed beyond the scope of the original agreement, she acquiesced to that
performance.
b. The parties should brief the Court as to the final calculations of
damages.
Defendant Gambardella’s second contention is that there are still disputes as
to the damages calculated. Rule 56(c) of the Delaware Superior Court Civil Rules
states: “[a] summary judgment, interlocutory in character, may be rendered on the
issue of liability alone although there is a genuine issue as to the amount of
damages.”
Plaintiff has not provided the Emergency Work Authorization defining the
scope of services provided. Additionally, Plaintiff has pleaded specific damages in
its complaint but has not provided detailed accounting of those damages. Although
Defendant Gambardella is liable, Plaintiff still has the burden to establish the
damages in this case.
Thus, because there is no genuine issue as to material facts as to liability, and
because summary judgment may be rendered as to liability without determining
damages, summary judgment is GRANTED IN PART as Defendant Gambardella
is liable to Plaintiff as to Counts I and II. The parties are ordered to brief damage
calculations. Plaintiff shall file their opening brief on or before July 16, 2025.
16 Defendant Gambardella shall file her answering brief on or before August 6, 2025.
Plaintiff shall file any reply brief by August 20, 2025.
c. Plaintiff’s conversion claim fails to state a separate cause of action and is
dismissed.
When a plaintiff's claim arises solely from a breach of contract, the plaintiff
“generally must sue in contract, and not in tort.”50 “Thus, in order to assert a tort
claim along with a contract claim, the plaintiff must generally allege that the
defendant violated an independent legal duty, apart from the duty imposed by
contract.”51 The exception is for the return of identical money, which applies when
the money can be described or identified as a specific chattel, not when the party
seeking payment could be satisfied by the payment of money generally.52
Here, Plaintiff alleges conversion in Count III but has not identified any
reason why it has any possessory right to the funds which Allstate provided
Defendant Gambardella except due to Plaintiff’s contractual performance.
Furthermore, the identical money exception does not apply, as the money claimed
under Count III is not a specific chattel and Plaintiff would be made whole by the
payment of any money generally, not just the specific check Allstate provided
50 Kuroda v SPJS Holdings, L.L.C., 971 A.2d 872, 880, 889 (Del. Ch. 2009) (quoting Data Mgmt. Internationale, Inc. v. Saraga, 2007 WL 2142848, at *3 (Del. Super. July 25, 2007)). 51 Id. 52 Id. at 890. 17 Defendant Gambardella. Since conversion is an inappropriate alternative pleading
to Plaintiff’s breach of contract claims, Plaintiffs fail to state a claim as to Count III.
Thus, Count III is DISMISSED.
CONCLUSION
Summary Judgment is GRANTED IN PART finding that Defendant
Gambardella is liable as to Counts I and II. The parties shall brief the Court
regarding damages as outlined. Count III is DISMISSED.
IT IS SO ORDERED.
/s/ Mark H. Conner Mark H. Conner, Judge
oc: Prothonotary