Smith, G. v. Dreibelbis, I.

• Court: Superior Court of Pennsylvania
• Decided: September 16, 2020
• Docket: 84 MDA 2020
• Status: Unpublished

Opinion

J-S34016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY A. SMITH AND SERIASHIA J. : IN THE SUPERIOR COURT OF CHATTERS, AND LINDA C. : PENNSYLVANIA CHATTERS : : : v. : : : ISAAC H. DREIBELBIS, T/A : No. 84 MDA 2020 DREIBELBIS CONSTRUCTION : : Appellant

Appeal from the Order Entered December 11, 2019 In the Court of Common Pleas of Centre County Civil Division at No(s): 2018-4899

BEFORE: PANELLA, P.J., BENDER, P.J.E., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 16, 2020

Isaac H. Dreibelbis, t/a Dreibelbis Construction (Defendant or Appellant)

appeals from the order of the Court of Common Pleas of Centre County that

granted the motion for summary judgment filed by Gary A. Smith and

Seriashia J. Chatters, husband and wife, and Linda C. Chatters (Plaintiffs or

Appellees). The court also dismissed Defendant’s counterclaim, entering

judgment in favor of Plaintiffs in the amount of $52,000.00, plus interest,

costs of suit, and attorney’s fees of $2,500.00. After review, we affirm.

This case involves a contract for the construction of an in-law suite to

be added to Plaintiffs’ home by Defendant, who operated a home construction

business. After Defendant’s failure to complete the construction and due to

Plaintiffs’ having paid in full the price of the construction, Plaintiffs filed suit, J-S34016-20

alleging breach of contract and a violation of the Home Improvement

Consumer Protection Act, 73 P.S. §§ 517.1 – 517.18, and the Pennsylvania

Unfair Trade Practices and Consumer Protection Law, 73 P.S.§§ 201-1 – 201-

9.3. In response, Defendant filed a counterclaim for negligence. Thereafter,

Plaintiffs filed a motion for summary judgement, which was granted by the

trial court. Defendant’s counterclaim was dismissed.

Defendant now appeals to this Court, raising the following issue for our

review:

Whether the trial court abused its discretion when granting Plaintiff Appellees’ motion for summary judgment because the trial court treated Defendant Appellant’s general denial to a conclusion of law as an admission, in addition to there being genuine issues of material fact that continue to exist[?]

Defendant’s brief at 4.

Because Defendant’s appeal arises after the grant of summary

judgment, we set forth the following that guides our review:

[T]he standards which govern summary judgment are well settled. When a party seeks summary judgment, a court shall enter judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense that could be established by additional discovery. A motion for summary judgment is based on an evidentiary record that entitles the moving party to a judgment as a matter of law. In considering the merits of a motion for summary judgment, a court views the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Finally, the court may grant summary judgment only when the right to such a judgment is clear and free from doubt. An appellate court may reverse the granting of a motion for summary

-2- J-S34016-20

judgment if there has been an error of law or an abuse of discretion . . . .

Swords v. Harleysville Ins. Companies, 584 Pa. 382, 883 A.2d 562, 566-67 (Pa. 2005) (citations omitted). To the extent this Court must resolve a question of law, we shall review the grant of summary judgment in the context of the entire record. Truax v. Roulhac, 126 A.3d 991, 996 (Pa. Super. 2015).

Woodhouse Hunting Club, Inc. v. Hoyt, 183 A.3d 453, 457 (Pa. Super.

2018).

We have reviewed the certified record, the briefs of the parties, the

applicable law, and the thorough opinion, authored by the Honorable Pamela

A. Ruest, President Judge of the Court of Common Pleas of Centre County,

dated December 11, 2019. We conclude that Judge Ruest’s well-reasoned

opinion accurately disposes of the issue presented by Defendant on appeal

and we discern no abuse of discretion or error of law. Accordingly, we adopt

Judge Ruest’s opinion as our own for purposes of appellate review and affirm

the order from which this appeal arose.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 09/16/2020

-3- Cir

IN HE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA CIVIL ACTION -LAW

GARY A. NTH and SERIASH A J. CHATTERS, husband 4nd wife, and LINDA C. CHATTERS, Plaintiffs

v. No. 2018-4899 ,.. i

ISAAC H. DREIBELBIS, tla ; -.1 DREIBELBIS CONSTRUCTION, .7 Defendant : , ,--) 1 ., ) , 1 Attorney for I" Jointiffs: Jeffrey W. Stover, ES4.7. -13 Attorney for Defendant: Pro se ..-. .

-i , 1 j OPINION and ORDER ' ' t -I L_,D

Ruest, P.a.

Presently before the Court is a Motion for Summary Judgment filed by Gary A. Smith,

Seriashia J. Chatters, and Linda C. Chatters (jointly, "Plaintiffs") on September 18, 2019.

Plaintiffs filed a Brief in Support of Summary Judgment on September 18, 2019. Isaac H.

Drelbeibisi, tie Dreibelbis Construction ("Defendant") filed a Brief against Summary Judgment on

October 3, 2019. Oral argument was held on October 31, 2019. The Court finds as follows:

Background

Defendant is a contractor who operated a home construction and remodeling business,

Dreibelbis Construction. Plaintiffs contacted Defendant about adding an in-law space onto their

home. On or about October 31, 2017, Plaintiffs and Defendant entered into a written agreement

for a total construction price of $128,250.00. The contract required a down payment of

$64,500. 3 and nine subsequent "progress payments" of $7,083.33 each, to be submitted at the

end of ea h of the nine phases of construction. Plaintiffs paid Defendant a down payment of

$64,500. 3, and the first progress payment of $7,083.33 was paid on January 8, 2018.

Plaintiffs the eight remaining progress payments, totaling $7,083.33 each, on January 10,

2018 with an alleged oral stipulation that Defendant apply the checks toward the contract price

MO ORD OS

62a and only deposit those checks as each phase of the construction was completed. Defendant

deposited all of the checks into the business checking account for Dreibelbis Construction.

Title parties dispute when Defendant began work on Plaintiffs' home; Defendant alleges

on -site work on the project began November 19, 2017, but Plaintiffs state Defendant did not

begin wo k on their home until January 2018. After erecting the exterior shell of the addition

and part the drywall, Defendant stopped working on the project. Defendant went out of

business before finishing the project. As of the date of oral argument on Plaintiffs' summary

judgment' motion, Defendant has not refunded Plaintiffs' money.

Plaintiffs brought suit against Defendant on December 19, 2018, alleging breach of

contract and a violation of the Home Improvement Consumer Protection Act (HICPA), §517.1, et

seq., and the Pennsylvania Unfair Trade Practices and Consumer Protection Law ("UTPCPL"),

73 P.S. 201-1, et seq. Defendant filed an Answer and asserted a counterclaim for negligence

against Plaintiffs on February 8, 2019.

Discussion

A Motion for Summary Judgment may be made once all relevant pleadings are closed

and wit* a reasonable amount of time so as not to delay trial. Pa.R.C.P. 1035.2. Summary

judgmen is properly granted when there are no genuine issues of material fact necessary to

prove an element of a cause of action. Swords v. Harleysville Ins. Companies, 584 Pa. 382,

883 A.211562, 566 (2006). The court must view the entirety of the record in a light most

favorable to the non-moving party and resolve all doubts in that party's favor. Id. at 566-67.

Summa judgment is only proper when the case is clear and free from doubt pertaining to

questiors of material fact. Redland Soccer Club v. Department of Army, 548 Pa. 178, 696

A.2d 141 (1997).

tmaterial fact is a fact that is critical to the issue in the motion, would directly affect the

outcome of the case, and is defined by the substantive law. Bartlett v. Bradford Publishing,

Inc., 2065 PA Super 350, 885 A.2d 562, 568; Strife v. Commonwealth, 566 Pa. 395, 694 Aid 2

63a 733, 738 (2003). "ln sum, only when the facts are so clear that reasonable minds cannot differ,

may a tril court properly enter summary judgment." Roche v. Ugly Duckling Car Sales, Inc.,

2005 PA Super 225, 879 A.2d 785, 789.

I. Count pne: Breach of Contract

Pliaintiffs request this Court grant summary judgment against Defendant for failure to

finish a construction project, despite receiving full payment for said construction project pursuant

to a written contract. In support of their motion, Plaintiffs rely on the admissions in Defendant's

Answer acrd Counterclaim. Defendant argues Plaintiffs acted outside their written agreement

when they paid for the project in full and avers Plaintiffs have been unwilling to agree to a

feasible re -payment plan.

FM- a breach of contract claim to be sustained, there must be ""(1) the existence of a

contract, including its essential terms, (2) a breach of a duty imposed by the contract1,1 and (3)

resultant idamages."" Williams v. Nationwide Mutual lns, Co., 750 A.2d 881, 884 (Pa. Super. l

Ct. 2000)1 (quoting CoreStates Bank, Nat'l Assn. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super.

Ct. 1999)). There is no dispute as to the existence of the contract between the parties.

Here, Defendant admitted he received and deposited Plaintiffs' checks into the

Dreibelbi Construction business account in paragraph 11 of his Answer. In paragraphs 15 and

25 of his Answer, Defendant admitted he did not finish the construction project and Plaintiffs are

at a loss rue to the closure of his business. Because the parties had a signed contract for

Defendap to complete the construction project and Defendant failed to do so, Plaintiffs have

establish' d Defendant breached his duties under the contract.

Pendant disagrees to the amount of damages Plaintiffs claim although he admits

Plaintiffs paid the full contract price for the project that was not completed. Paragraph 17 of

Plaintiffs Complaint averred Defendant admitted in text messages that he owed $52,000

"becaus he had pocketed the entire construction price while only doing approximately one-half

the work," Plaintiffs' Complaint, p. 4, 717. Plaintiffs allege the text messages were sent and

64a received on or around July 2018. In his Answer and Counterclaim, Defendant denied Plaintiffs'

assertion Without further explanation. Pursuant to Pennsylvania Rule of Civil Procedure 1029,

"Averments in a pleading to which a responsive pleading is required are admitted when not

denied srlcifically or by necessary implication. A general denial or a demand for proof ... shall

have the effect of an admission." Pa.R.C.P. 1029(b). The Court will examine the pleadings as

a whole td determine if a general denial was made under Pa.R.C.P. 1029(b). Com. by Praete

v. Rainbow Associates, Inc., 138 Pa. Comrnw. 56, 61, 587 A.2d 357, 360 (1991).

Based on the aforementioned admissions this Court has noted Defendant made in its

Answer, including the existence of the contract, receipt of full payment of the contract price, and

failure to finish the project, the court deems Defendant's denial of Plaintiffs' paragraph '17

averments a general denial. Thus, the Court construes the general denial as an admission that

Defendant stated, in text messages, that he owes Plaintiffs $52,000. Plaintiffs have proven all

of the el ents necessary to establish a breach of contract.

Defendant's argument that Plaintiffs breached the agreement when they paid for the

project in full is immaterial as "[a] written contract which is not for the sale of goods may be

modified orally." Universal Builders, Inc. v. Moon Motor Lodge, Inc., 430 Pa. 550, 557, 244

A.2d 10, 15 (1968). After discussion, Defendant received and deposited Plaintiffs' checks, thus

agreeinglto an oral modification of the agreement. Further, Defendant's argument Plaintiffs

have refs sed to agree to a repayment plan is immaterial to the present matter. For these

reasons, I/Plaintiffs' motion for summary judgment for breach of contract is GRANTED.

II. Count Two: Violation ;:tf the UTPCPL

Plaintiffs allege Defendant violated the UTPCPL when he failed to complete the

constru4ion project. Defendant, however, argues that his failure to complete the addition on

Plaintiffs!' home was the result of his business closing, and was never done with any deceptive

intent.

The HICPA provides:

65a NO person shall:... Abandon or fail to perform, without justification, any home improvement contract or project engaged in or undertaken by a contractor. For the purposes of this paragraph, the term "justification" shall include nonpayment by the owner as required under the contract or any other violation of the contract 14 the owner.

73 P.S. §1517.9(5), The HICPA also provides that a violation of its provisions constitutes a

violation Of the UTPCPL. 73 P.S. § 517.10.

Hare, the parties agree Defendant is a contractor as defined by the HICPA, and the

contract etween the parties is a home improvement contract as defined by the HICPA. See 73

P.S. §51 .2. Defendant made a general denial to paragraph 33 of Plaintiffs' Complaint averring

Defendant violated the provisions of the HICPA and, therefore, violated the UTPCPL. As the

Court haS indicated, a general denial will be construed as an admission where the averment

requires responsive pleading. Pa.R.C.P. 1029(b). Further, upon inspection of the

admissi ns in the pleadings, Defendant failed to perform the home improvement contract he

underto k without justification. Because Plaintiffs have shown Defendant, a contractor,

abando ed a home improvement project he agreed to complete, Plaintiffs' motion for summary

judgment on their claim under the UTPCPL is GRANTED.

Ill. Defetidant's Counterclaim: Negligence

Defendant also brings a counterclaim against Plaintiffs for negligence. Defendant

argues Plaintiffs were negligent when they paid Defendant the full contract price for the project

before all work was completed. In response, Plaintiffs argue they fully performed their

obligatiOns under the contract by paying Defendant in full, and that a negligence claim is

inappropriate in this contract dispute.

Negligence is a "breach of a legally recognized duty or obligation that is causally

connected to the damages suffered by the complainant." Bilt-Rite Contractors, Inc. v. The

Architactural Studio, 581 Pa. 454, 866 A.2d 270, 280 (2005) (quoting Sharpe v. St. Luke's

Hospitid, 573 Pa. 90, 821 A.2d 1215, 1218 (2003)). Here, Plaintiffs' actions in paying the

contracted price up front was not a breach of a legally recognized duty because, as this Court

66a was accepted by has indicated, the contract was orally modified. The modified contract did not suffer Defendat when he received and deposited Plaintiffs' checks. Further, Defendant motion for damages as a result of Plaintiffs' up -front payments. For this reason, Plaintiffs' and the counterclaim summary judgment on Defendant's negligence counterclaim is GRANTED

is DISMISSED.

ORDER

Motion for Summary /OW NOW, on this itt_1 day of December, 2019, Plaintiffs' is entered in JudgmeOt is GRANTED. Defendant's counterclaim is DISMISSED. Judgment interest at favor of laintiffs and against Defendant in the amount of $52,000.00, together with

the legal rate, costs of suit, and attorney's fees of $2,500.00.

BY THE COURT:

)1 7 Ce, (ku2 , Pamela A. Ruest, President Judge

67a