Dolan, L. v. Hurd Millwork Company, Inc.

J-A17040-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

LEO J. DOLAN, JR. AND CHERIE M. : IN THE SUPERIOR COURT OF
DOLAN, H/W : PENNSYLVANIA
:
Appellees :
:
v. :
:
HURD MILLWORK COMPANY, INC., :
BENTLEY HOMES, LTD., GARVIN :
MITCHELL CORPORATION, CHADWELL :
ASSOCIATES, L.P., CHADWELL REALTY, :
INC., HARRISON COMMUNITY :
ASSOCIATION :
:
Appellants : No. 2951 EDA 2015

Appeal from the Judgment Entered August 26, 2015
In the Court of Common Pleas of Delaware County
Civil Division at No(s): 2005-005801

BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED JUNE 21, 2019

Appellants, Bentley Homes, Ltd., Garvin Mitchell Corporation, Chadwell

Associates, L.P., Chadwell Realty, Inc., and Harrison Community Association,

appeal from the judgment entered in the Delaware County Court of Common

Pleas, in favor of Appellee, Leo J. Dolan, Jr.1 We affirm.

The relevant facts and procedural history of this case are as follows.

In July 1999, Appellee and Cherie M. Dolan entered into an agreement of

sale with Appellants for a new custom home for the purchase price of

1 Appellee and Cherie M. Dolan divorced while the case was pending in the
trial court. Cherie M. Dolan is not a party to this appeal.
_____________________________

*Retired Senior Judge assigned to the Superior Court.
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$1,941,669.00. Settlement took place on November 10, 2000. Hurd

Millwork Company, Inc. provided many of the windows used in the

construction of Appellee’s home. Within a year, the home developed

substantial defects including air and water leaks around the windows.

On April 5, 2001, Hurd Millwork sued Appellants for unpaid invoices

related to the construction of Appellee’s home and other homes in the same

community. Appellants filed an answer, new matter and counterclaim

against Hurd Millwork, alleging Hurd Millwork had provided defective

windows. Appellants further asserted that the defective windows Hurd

Millwork provided caused air and water leaks in numerous homes in the

community. In October 2002, Appellants and Hurd Millwork entered a

settlement agreement, which contained specific admissions that numerous

homes in the development, including Appellee’s home, suffered from

extensive defects and leaks.

During the pendency of the litigation between Hurd Millwork and

Appellants, Appellee experienced numerous additional problems with the

home including, but not limited to, severe air and water leaks, rotted wood,

and issues with the stucco wall. Appellants made some repairs to the home;

however, the leaks and damage continued to worsen. Ultimately, Appellee

hired a civil engineer to assess the home and determine what repairs were

necessary to fix the problems with the home. The repairs and associated

costs necessary to fix Appellee’s home totaled $826,695.99.

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On May 24, 2005, Appellee filed a writ of summons against Appellants

and Hurd Millwork. Appellee subsequently filed a complaint against

Appellants and Hurd Millwork on September 6, 2005. The complaint raised

claims against Appellants for negligence, breach of express and implied

warranties, negligent misrepresentation, fraud and/or intentional

misrepresentation, and violations of the Unfair Trade Practice and Consumer

Protection Law (“UTPCPL”). Appellee’s complaint against Appellants sought

punitive damages. The complaint also raised claims against Hurd Millwork

for breach of express and implied warranties, negligence, and products

liability. On November 4, 2005, Appellants filed preliminary objections,

which the court overruled on February 2, 2006. Appellants filed an answer,

new matter and cross-claim against Hurd Millwork on March 1, 2006.

Appellants’ cross-claim alleged Hurd Millwork was solely or jointly liable for

Appellee’s injuries.

On March 2, 2006, Hurd Millwork filed an answer to Appellants’ cross-

claim. Hurd Millwork filed a separate answer and new matter to Appellee’s

complaint on March 13, 2006, as well as a cross-claim against Appellants,

which alleged Appellants were solely or jointly liable for Appellee’s injuries.

Appellants filed an answer to Hurd Millwork’s cross-claim on March 14, 2006.

Appellants subsequently filed joinder complaints against numerous other

parties involved in the construction of Appellee’s home. All parties

underwent settlement discussions, which resulted in the dismissal of the

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joined defendants from the case and a settlement agreement between

Appellee and Hurd Millwork.2

The case eventually proceeded to a bench trial on January 26, 2015.

The only claims remaining for the court to address were Appellee’s claims

against Appellants and Appellants’ cross-claim against Hurd Millwork.

Despite the pending cross-claim, Hurd Millwork did not appear at trial. Prior

to the presentation of testimony, the parties stipulated to the defective

nature of the Hurd Millwork windows used in the construction of Appellee’s

home.

Appellee presented the only evidence at trial, which supported his

claims against Appellants. Specifically, Appellee presented testimony from

Paul Neff, an expert in residential construction and residential remediation.

Mr. Neff testified, inter alia: (1) he was the site superintendent involved in

all aspects of the remediation necessary for Appellee’s home; (2)

remediation of Appellee’s home included, but was not limited to, taking

down all stucco from the home, tearing off the roof, and removing and

replacing all windows in the home; (3) the total remediation cost billed to

Appellee for those repairs was $597,191.54; and (4) all repairs were

reasonable and necessary. (See N.T. Trial, 1/26/15, at 5-26; R.R. at 917a-

938a).

Daniel Honig, an expert in civil engineering with structural specialty

2 Hurd Millwork is not a party to this appeal.

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and expertise in the area of home repair and remediation, testified, inter

alia: (1) Appellee’s home required drill testing by a specialty group to

provide data on the exterior envelope moisture conditions; (2) the drill tests

on Appellee’s home showed a failure on 122 of the 200 drill probes

performed, or a 61% failure rate, which is an “astounding number”; (3) a

“failure” is either an excessive moisture reading or “no resistance” in the

underlying oriented strand board (“OSB”), where there is so much saturation

that the OSB has actually disappeared; (4) to put things in perspective, Mr.

Honig explained that a rate of 14% or less of moisture is normal/expected,

14% to 19% is questionable, and anything above 19% is a failure; (5) the

excessive moisture reading in Appellee’s home indicated a “pervasive” and

“widespread” problem; (6) problems in Appellee’s home included, but were

not limited to, improper roof edge detailing, lack of sealant around the

birdsmouth trim, lack of weep screed detail, improper lack of flashing around

the windows, and lack of horizontal and vertical control joint detailing in the

stucco installation; (7) the construction of Appellee’s home fell “woefully

short” of compliance with the Building Officials and Code Administrators

(“BOCA”) requirements; (8) the deficiencies in the construction of Appellee’s

home were a factual cause of the damages suffered; and (9) remediation of

Appellee’s home was necessary and the costs incurred to remediate were

reasonable. (See id. at 27-76; R.R. at 939a-988a).

Appellee testified, inter alia: (1) he moved into his home in November

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2000; (2) within the first few years, Appellee observed some problems with

the home including air leaks, a leak in the chimney, problems with the

French doors, and rot behind the stucco; (3) Appellee contacted Appellants

on multiple occasions to fix the problems—some problems were fixed

without difficulty, others were not; (4) by 2003, Appellee thought most of

the problems in his home had been fixed and did not anticipate further

difficulties; (5) nevertheless, in 2005, “things started to seem to get

serious,” when Appellee noticed the wood frame at the bottom of a window

in his family room appeared rotted and there was a large green hole; (6)

this observation in 2005 was the “big trigger” that there was some

underlying defect to Appellee’s home; (7) in May 2005, Appellee learned for

the first time that Appellants had been involved in litigation with Hurd

Millwork and recovered a settlement due to Hurd Millwork’s manufacture of

defective windows installed in various homes in Appellee’s development,

including windows installed throughout Appellee’s “entire home”; (8)

Appellants did not disclose the lawsuit or settlement to Appellee at any time

or offer Appellee any proceeds from the settlement; (9) in August 2005,

Appellee hired Mr. Honig to identify the various defects in Appellee’s home

and develop a plain for remediation; (10) in 2008, extensive remediation

began to cure the defects; and (11) Appellee expended a total of

$826,695.99, which included additional costs associated with the

remediation. (See id. at 79-182; R.R. at 991a-1094a).

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Appellants did not present a defense to rebut Appellee’s claims or

present evidence to prove its cross-claim against Hurd Millwork. At the

conclusion of trial, the court took the matter under advisement pending the

preparation of proposed findings of fact/conclusions of law by both parties.

Both parties filed their respective proposed findings of fact/conclusions of

law on May 20, 2015. By order dated June 18, 2015, entered on the docket

on June 19, 2015, with Pa.R.C.P. 236 notice sent on June 22, 2015, the

court entered a general verdict against Appellants, jointly and severally, for

$500,000.00 in damages. The court’s ruling did not expressly address

Appellants’ pending cross-claim.3

On June 26, 2015, Appellants timely filed a motion for post-trial relief,

and Appellee timely filed a motion for delay damages on June 30, 2015. On

August 19, 2015, the court denied Appellants’ motion for post-trial relief.

The same day, the court granted Appellee’s motion for delay damages and

molded the verdict to $748,287.67. Appellee filed a praecipe for entry of

judgment on August 26, 2015. On September 16, 2015, Appellants timely

filed a notice of appeal. The court did not order Appellants to file a concise

statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b),

3 Nevertheless, the court explained in its Rule 1925(a) opinion that
Appellants presented no evidence at trial to support their cross-claim, so
Appellants effectively abandoned that claim. Moreover, Appellants had
already reached a settlement with Hurd Millwork in October 2002, ostensibly
for damages involving the defective windows installed in Appellee’s home.
We discuss Appellants’ cross-claim more fully in our review of Appellants’
eighth issue on appeal.

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and Appellants did not file one. The trial court issued a conclusory three-

page opinion pursuant to Pa.R.A.P. 1925(a).

This Court remanded the case on January 13, 2017, and directed the

trial court to prepare a supplemental opinion addressing all of Appellants’

issues. Upon remand, the President Judge of the county court filed a

“Response to Remand,” stating the trial judge had retired; and no one

currently on the bench could prepare the supplemental opinion as ordered.

Due to the lack of a trial court opinion and guidance concerning, inter alia,

on which claims the trial court had awarded Appellee relief, this Court

vacated the judgment on February 17, 2017, and remanded for a new trial

on liability and damages. On October 17, 2018, our Supreme Court

reversed and remanded, holding that where a trial court opinion is

inadequate and the trial judge is unavailable to provide a supplemental

opinion, the appellate court should review the legal issues raised in the

appellant’s Rule 1925(b) statement and decide whether the court’s factual

findings were supported by competent evidence. See Dolan v. Hurd

Millwork Company, Inc., ___ Pa. ___, 195 A.3d 169 (2018).

Appellants raise the following issues for our review:4

1. WHETHER A PARTY IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING DAMAGES FOR NEGLIGENCE
WHERE THAT CLAIM IS BARRED BY THE GIST OF THE
ACTION DOCTRINE, THE ECONOMIC LOSS DOCTRINE,
AND THE STATUTE OF LIMITATIONS[?]

4 We have reordered Appellants’ second and third issues.

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2. WHETHER A PARTY IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING DAMAGES FOR NEGLIGENT
MISREPRESENTATION AND FRAUD/INTENTIONAL
MISREPRESENTATION WHERE THOSE CLAIMS ARE
BARRED BY THE GIST OF THE ACTION DOCTRINE, THE
ECONOMIC LOSS DOCTRINE, AND THE STATUTE OF
LIMITATIONS[?]

3. WHETHER [APPELLEE] IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING DAMAGES FOR BREACH OF
EXPRESS AND IMPLIED WARRANTIES WHERE THOSE
CLAIMS CANNOT BE MAINTAINED AGAINST
[APPELLANTS], ARE BARRED BY THE STATUTE OF
LIMITATIONS, [APPELLEE] FAILED TO PRESENT EVIDENCE
OF THE TERMS OF THE EXPRESS WARRANTIES AT TRIAL,
AND [APPELLEE] FAILED TO GIVE THE OPPORTUNITY TO
REPAIR OR NOTICE OF THE DEFECTS FOR WHICH THE
PARTY NOW SEEKS AN AWARD OF DAMAGES[?]

4. WHETHER A PARTY IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING AN AWARD OF PUNITIVE
DAMAGES WHERE PENNSYLVANIA LAW DOES NOT
RECOGNIZE AN INDEPENDENT CAUSE OF ACTION FOR
PUNITIVE DAMAGES AND NONE OF THE CLAIMS CAN
SUPPORT A CLAIM FOR PUNITIVE DAMAGES[?]

5. WHETHER A PARTY IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING DAMAGES UNDER THE [UTPCPL]
WHERE THAT CLAIM CAN BE MAINTAINED, IF AT ALL,
ONLY AGAINST THE SELLER AND THE FRAUDULENT OR
DECEPTIVE CONDUCT UPON WHICH THE CLAIM IS BASED
OCCURRED, IF AT ALL, AFTER THE PURCHASE OF THE
REAL PROPERTY AT ISSUE[?]

6. WHETHER A PARTY IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING AN AWARD OF DAMAGES WHERE
BY THE PARTY’S OWN ADMISSION, THE PARTY FAILED TO
MITIGATE ITS DAMAGES AND RENDERED IT IMPOSSIBLE
FOR THE COURT TO DETERMINE THE PROPER AMOUNT OF
DAMAGES TO AWARD TO THE PARTY[?]

7. WHETHER A PARTY IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING AN AWARD OF DAMAGES FOR
BREACH OF CONTRACT WHERE THE PARTY NEVER [PLED]

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SUCH A CLAIM, DID NOT SEEK LEAVE AT TRIAL TO AMEND
TO INCLUDE SUCH A CLAIM, AND ANY SUCH CLAIM IS
BARRED BY THE STATUTE OF LIMITATIONS[?]

8. WHETHER [APPELLANTS ARE] ENTITLED TO AN AWARD
OF INDEMNIFICATION AND/OR CONTRIBUTION AGAINST
A CO-DEFENDANT WHERE THE EVIDENCE IS CLEAR THAT
THE CO-DEFENDANT’S CONDUCT CAUSED INJURY TO
[APPELLEE] AND THE BASIS OF [APPELLANTS’] LIABILITY
TO [APPELLEE] IS DUE TO THE CO-DEFENDANT’S
CONDUCT[?]

9. WHETHER [APPELLEE] IS PRECLUDED AS A MATTER OF
LAW FROM OBTAINING DELAY DAMAGES WHERE THE
UNDERLYING ACTION IS BASED UPON THE CONTRACTUAL
RELATIONSHIP OF THE PARTIES TO THE LITIGATION AND
DELAY DAMAGES ARE NOT AVAILABLE IN CONTRACT
ACTIONS[?]

(Appellants’ Brief at 5-7).

Our standard of review following a bench trial is as follows:

We must determine whether the findings of the trial court
are supported by competent evidence and whether the
trial judge committed error in the application of law.
Additionally, findings of the trial judge in a non-jury case
must be given the same weight and effect on appeal as a
verdict of a jury and will not be disturbed absent error of
law or abuse of discretion.

Good v. Holstein, 787 A.2d 426, 429 (Pa.Super. 2001), appeal denied, 568

Pa. 738, 798 A.2d 1290 (2002).

Further, Pennsylvania law has adopted the “general-verdict rule,”

providing that when the fact-finder “returns a general verdict involving two

or more issues and its verdict is supported as to at least one issue, the

verdict will not be reversed on appeal.” Halper v. Jewish Family &

Children’s Services of Greater Philadelphia, 600 Pa. 145, 156-57, 963

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A.2d 1282, 1289 (2009). A defendant who fails to request a special verdict

sheet in a civil case will be barred on appeal from complaining that the fact-

finder may have relied on a theory of liability unsupported by the evidence

when there was sufficient evidence to support another theory of liability. Id.

(reinstating jury’s general verdict in favor of plaintiffs; even though one

theory of liability on which plaintiffs proceeded was legally untenable,

defendant did not request special verdict slip and evidence was sufficient to

support at least one of plaintiffs’ two theories of liability).

For purposes of disposition, we combine Appellants’ first and second

issues. Appellants argue that their duties to Appellee, if any duties exist,

arose from the agreement of sale. Appellants assert that Appellee claims his

damages resulted from Appellants’ alleged failure to perform one of the

specific duties imposed by the agreement of sale, namely, to construct the

property. Appellants insist they would not have been obligated to construct

the property but for the existence of the agreement of sale. Appellants

contend their alleged obligations to make repairs and/or compensate

Appellee for any alleged damages due to faulty construction arose solely

from the obligations set forth in the agreement of sale. Appellants suggest

Appellee’s fraud and misrepresentation claims similarly concerned and arose

out of Appellants’ performance of contractual duties. Appellants maintain

Appellee’s complaints essentially duplicate a breach of contract action, so his

claims for negligence, negligent misrepresentation, and intentional

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misrepresentation/fraud are barred by the “gist of the action” doctrine.

Appellants also aver Appellee’s tort claims are barred by the economic

loss doctrine because the only loss Appellee allegedly suffered was damage

to his property and the costs necessary to repair the property. Appellants

maintain the allegedly defective windows were an integrated part of the

house, so Appellee incurred no damage to “other property” aside from the

house itself. Appellants submit that any damage to the property as a result

of the defective windows was nothing more than the loss of the bargain of

the agreement of sale, which can be redressed by a breach of contract or

breach of warranty claim.

Appellants further argue Appellee’s tort claims are barred by the two-

year statute of limitations. Appellants highlight Appellee’s admission that he

had problems with the windows in his home as early as December 2000 and

January 2001, and moisture leaks in November 2001. Appellants submit the

statute of limitations began to run at that time, and Appellee was under an

obligation in 2000 and 2001 to investigate the condition of the windows.

Appellants maintain that once Appellee knew of the window leaks, he knew

that he was “injured,” and reasonably should have discovered the extent of

that injury. Appellants conclude Appellee’s tort claims are time-barred,

precluded by the gist of the action and economic loss doctrines, and this

Court must reverse the judgment in favor of Appellee. We disagree.

This Court has recognized the gist of the action doctrine as barring a

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plaintiff from recasting ordinary breach of contract claims as tort claims.

eToll, Inc. v. Elias/Savion Advertising, Inc., 811 A.2d 10 (Pa.Super.

2002). That doctrine provides “a claim should be limited to a contract claim

when the parties’ obligations are defined by the terms of the contracts, and

not by the larger social policies embodied by the law of torts.” Hart v.

Arnold, 884 A.2d 316, 339-40 (Pa.Super. 2005), appeal denied, 587 Pa.

695, 897 A.2d 458 (2006) (emphasis omitted). “The ‘gist of the action’ test

is a general test concerned with the ‘essential ground,’ foundation, or

material part of an entire ‘formal complaint’ or lawsuit.” Id. at 340. The

doctrine bars tort claims: “(1) arising solely from a contract between the

parties; (2) where the duties allegedly breached were created and grounded

in the contract itself; (3) where the liability stems from a contract; or (4)

where the tort claim essentially duplicates a breach of contract claim or the

success of which is wholly dependent on the terms of a contract.” Id.

Importantly, “the mere existence of a contract between two parties

does not, ipso facto, classify a claim by a contracting party for injury or loss

suffered as the result of actions of the other party in performing the contract

as one for breach of contract.” Bruno v. Erie Ins. Co., 630 Pa. 79, 114,

106 A.3d 48, 69 (2014). Rather:

[T]he nature of the duty alleged to have been breached, as
established by the underlying averments supporting the
claim in a plaintiff’s complaint, [is] the critical
determinative factor in determining whether the claim is
truly one in tort, or for breach of contract. In this regard,
the substance of the allegations comprising a claim in a

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plaintiff’s complaint [is] of paramount importance, and,
thus, the mere labeling by the plaintiff of a claim as being
in tort, e.g., for negligence, is not controlling. If the facts
of a particular claim establish that the duty breached is
one created by the parties by the terms of their contract—
i.e., a specific promise to do something that a party would
not ordinarily have been obligated to do but for the
existence of the contract—then the claim is to be viewed
as one for breach of contract. If, however, the facts
establish that the claim involves the defendant’s violation
of a broader social duty owed to all individuals, which is
imposed by the law of torts and, hence, exists regardless
of the contract, then it must be regarded as a tort.

* * *

Consequently, a negligence claim based on the actions of a
contracting party in performing contractual obligations is
not viewed as an action on the underlying contract itself,
since it is not founded on the breach of any of the specific
executory promises which comprise the contract. Instead,
the contract is regarded merely as the vehicle, or
mechanism, which established the relationship between
the parties, during which the tort of negligence was
committed.

Id. at 111-14, 106 A.3d at 68-70 (holding plaintiffs’ negligence claim

against defendant insurance company was not barred by gist of action

doctrine; plaintiffs’ claim was predicated on allegedly negligent actions by

defendant’s agents while they were performing contractual obligation to

investigate claim made by plaintiffs under their homeowners’ insurance

policy to determine if mold discovery triggered any of defendant’s payment

obligations; while conducting investigation, plaintiffs alleged defendant’s

agents acted in negligent manner by making false assurances regarding

toxicity of mold and affirmatively recommending that plaintiffs continue

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renovation efforts, which caused them to suffer physical harm based on

those assurances; these allegations of negligence facially concern

defendant’s alleged breach of general social duty, beyond breach of any duty

created by insurance policy itself; insurance policy here served merely as

vehicle to establish relationship between parties, and during that relationship

defendant allegedly committed tort).

The economic loss doctrine similarly prohibits tort causes of action

where the damages alleged are solely economic, unaccompanied by physical

injury or property damage. Adams v. Copper Beach Townhome

Communities, L.P., 816 A.2d 301 (Pa.Super. 2003). See also Spivack v.

Berks Ridge Corp. Inc., 586 A.2d 402 (Pa.Super. 1990) (holding dismissal

of appellants’ negligence claim against builder/contractor for various defects

in condominium unit was proper under economic loss doctrine where record

demonstrated no personal injury to appellants or property damage to their

condominium resulting from builder/contractor’s actions or inactions).

Typically arising in products liability cases, this Court has explained:

[W]here an allegedly defective product causes damage
only to itself, and other consequential damages resulting
from the loss of the use of the product, the law of contract
is the proper arena for redressing the harm because in
such a case, the damages alleged relate specifically to
product quality and value as to which the parties have had
the opportunity to negotiate and contract in advance.
They have allocated the risks of possible types of losses,
and agreed on the level of quality that will be given for the
price demanded. When the product fails to conform and
only economic losses result, the parties’ recovery one
against the other for economic losses should be limited to

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an action on that contract and no additional recovery in
negligence or strict liability is permitted.

New York State Elec. & Gas Corp. v. Westinghouse Elec. Corp., 564

A.2d 919, 925-26 (Pa.Super. 1989) (en banc) (holding economic loss

doctrine precluded theories of negligence and strict liability where parties

entered fully integrated contracts governing product involved, agreed to

limited warranties regarding quality of product and services to be provided,

and to limited remedies for failure to conform to those warranties). Further,

“where various components of a product are provided by the same supplier

as part of a complete and integrated package, even if a defect in one

component damages another, there is no damage to ‘other property’ of the

plaintiff.” Id. at 925. In this situation, “the resulting loss due to repair

costs, decreased value, and lost profits is essentially the failure of the

purchaser to receive the benefit of his bargain—traditionally, the core

concern of contract law.” REM Coal Co., Inc. v. Clark Equipment Co.,

563 A.2d 128, 132 (Pa.Super. 1989) (en banc) (internal citation omitted).

Thus, “Pennsylvania’s breach of warranty law supplies a suitable framework

for regulating and enforcing the expectations and obligations of the parties

as to product performance. It provides a disappointed purchaser a complete

remedy for loss of the product itself and of its use within the limits of the

parties’ contractual understandings.” Id. at 133.

Actions sounding in negligence, negligent misrepresentation, and fraud

must be commenced within two years. 42 Pa.C.S.A. § 5524(7). “The

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statute of limitations requires aggrieved individuals to bring their claims

within a certain time of the injury, so that the passage of time does not

damage the defendant’s ability to adequately defend against claims made….”

Meehan v. Archdiocese of Philadelphia, 870 A.2d 912, 919 (Pa.Super.

2005), appeal denied, 584 Pa. 717, 885 A.2d 985 (2005) (internal citation

omitted). “Statutes of limitations are designed to effectuate three purposes:

(1) preservation of evidence; (2) the right of potential defendants to repose;

and (3) administrative efficiency and convenience.” Kingston Coal Co. v.

Felton Min. Co., Inc., 690 A.2d 284, 288 (Pa.Super. 1997), appeal denied,

549 Pa. 702, 700 A.2d 441 (1997).

As a general rule, the statute of limitations begins to run as soon as

the injury occurs; “lack of knowledge, mistake or misunderstanding [does]

not toll the running of the statute of limitations….” Pocono Intern.

Raceway, Inc. v. Pocono Produce, Inc., 503 Pa. 80, 84, 468 A.2d 468,

471 (1983). The right to institute a suit generally “arises when the injury is

inflicted.” Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (2005)

(internal citation omitted). “[A] party asserting a cause of action is under a

duty to use all reasonable diligence to be properly informed of the facts and

circumstances upon which a potential right of recovery is based and to

institute suit within the prescribed statutory period.” Pocono Intern.

Raceway, Inc., supra at 84, 468 A.2d at 471. “A plaintiff need not know

the precise extent of [his] injuries before the statutory period begins to run.”

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Sterling v. St. Michael’s School for Boys, 660 A.2d 64, 66 (Pa.Super.

1995), appeal denied, 543 Pa. 695, 670 A.2d 142 (1995).

“The discovery rule is an exception to the requirement that a

complaining party must file suit within the statutory period.” Meehan,

supra at 919. The discovery rule provides:

[W]here the existence of the injury is not known to the
complaining party and such knowledge cannot reasonably
be ascertained within the prescribed statutory period, the
limitations period does not begin to run until the discovery
of the injury is reasonably possible. The “discovery rule”
arises from the inability of the injured party, despite the
exercise of reasonable diligence, to know of the injury or
its cause. Its purpose is to exclude the period of time
during which the injured party is reasonably unaware that
an injury has been sustained so that people in that class
have essentially the same rights as those who suffer an
immediately ascertainable injury.

Kingston Coal Co., supra at 288-89 (emphasis and internal citation

omitted). In other words, the discovery rule tolls the statute of limitations

“until the point where the complaining party knows or reasonably should

know that he has been injured and that his injury has been caused by

another party’s conduct.” Crouse v. Cyclops Industries, 560 Pa. 394,

404, 745 A.2d 606, 611 (2000). “The statute begins to run when the

injured party [possesses] sufficient critical facts to put him on notice that a

wrong has been committed and that he need investigate to determine

whether he is entitled to redress.” Haggart v. Cho, 703 A.2d 522, 526

(Pa.Super. 1997), appeal denied, 553 Pa. 698, 718 A.2d 785 (1998).

“The party seeking to invoke the discovery rule bears the burden of

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establishing the inability to know of the injury despite the exercise of

reasonable diligence.” Dalrymple v. Brown, 549 Pa. 217, 224, 701 A.2d

164, 167 (1997). The reasonable diligence standard “is not a standard of

reasonable diligence unique to a particular plaintiff, but instead, a standard

of reasonable diligence as applied to a ‘reasonable person.’” Id. “[T]he

point at which the complaining party should reasonably be aware that he has

suffered an injury is generally an issue of fact to be determined by the [fact-

finder]; only where the facts are so clear that reasonable minds cannot differ

may the commencement of the limitations period be determined as a matter

of law.” E.J.M. v. Archdiocese of Philadelphia, 622 A.2d 1388, 1391

(Pa.Super. 1993) (internal citation omitted). See also Nicolaou v. Martin,

___ Pa. ___, 195 A.3d 880 (2018) (holding when appellant reasonably knew

or should have known of appellees’ misdiagnosis of multiple sclerosis was

question for fact-finder, where appellees told appellant over seven years that

she had four negative tests for Lyme disease; appellant was later able

independently to confirm Lyme disease diagnosis); Gleason v. Borough of

Moosic, 609 Pa. 353, 15 A.3d 479 (2011) (holding when appellants

reasonably knew or should have known they had suffered injury from toxic

mold was question for fact-finder, where basement flooding occurred in

1993, mold was discovered in 1997, and appellants began to experience

health problems in 1997, but appellants did not learn about effects of toxic

mold until television program on topic aired in 2000).

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Instantly, the trial court explained:

[Appellants] argue that [Appellee’s] negligence claims are
barred by the “gist of the action” doctrine. However, the
negligence claims are not barred by that doctrine as the
claims were based on the breach of the social duty
imposed by the law of torts and not a breach of a duty
created by the underlying contract. The gist of
[Appellee’s] action surrounding [his] negligence claims is
that [Appellants] were negligent in their actions and
omissions in performing their obligations.

(Trial Court Opinion, filed October 26, 2015, at 2; R.R. at 493a). Essentially,

the court decided the “gist” of Appellee’s action sounded in tort, not

contract.

In his negligence, negligent misrepresentation, and intentional

misrepresentation/fraud claims, Appellee alleged, inter alia: Appellants had a

duty to construct Appellee’s home properly, which included appropriate

installation of all windows and doors; soon after Appellee moved into the

home, he began experiencing water and air leaks, which he reported to

Appellants; Appellants made some isolated repairs to the property but did

not disclose at any time that the windows manufactured by Hurd Millwork

were defective and would cause systemic problems throughout Appellee’s

entire home; Appellants knew the windows installed in Appellee’s home were

defective, as evidenced by Appellants’ litigation with Hurd Millwork, but

made no effort to replace the defective windows or to notify Appellee of their

defective nature; Appellants failed to perform their duties in a workmanlike

manner; Appellants misrepresented the exact nature of the problem with the

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leaking windows as well as the exact nature of the remediation steps taken

to repair those windows; alternatively, Appellants misrepresented that the

windows had been repaired properly even though Appellants knew or should

have known their representation was untrue; Appellee reasonably relied on

Appellants’ misrepresentations; the problems with leaking windows in

Appellee’s residence caused elevated moisture, which spawned the growth of

biological contaminants; as a result of Appellants’ actions, Appellee

sustained substantial damage, not only to the defective windows, but also to

internal structures in Appellee’s home, as well as to personal items. (See

Complaint, filed 9/6/05, at unnumbered pp. 1-16; 19-22; R.R. at 32a-47a;

50a-53a).

Thus, the crux of Appellee’s negligence, negligent misrepresentation

and intentional misrepresentation/fraud claims is predicated on Appellants’

actions, misrepresentations, and omissions while investigating Appellee’s

repeated complaints about leaks in his house. According to Appellee,

Appellants led him to believe the problems were isolated and fixable and

Appellants had made the necessary repairs, even though Appellants knew

the windows were defective, would cause systemic problems throughout

Appellee’s entire home, and needed to be replaced—not “repaired.” These

allegations reach beyond the contractual obligations set forth in the parties’

agreement of sale. Instead, the agreement of sale merely served as the

vehicle to establish the ongoing relationship between the parties, during

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which Appellants allegedly committed various torts. Consequently, the gist

of the action doctrine did not bar Appellee’s tort claims. See Bruno, supra.

Additionally, the damages Appellee sustained exceeded the costs to

repair and ultimately replace the defective windows. The damages also

involved the internal structures and personal property within Appellee’s

home, which did not constitute a “complete and integrated” part of the

alleged defective property. See New York State Elec., supra. Thus, the

economic loss doctrine did not bar Appellee’s tort claims. See Adams,

supra. Compare Spivak, supra.

Regarding the statute of limitations, Appellee moved into his home in

November 2000. Appellee testified that he observed some problems with

the house within the first few years, such as air leaks, but by 2003, Appellee

was led to believe the problems in his home had been isolated and fixed; he

did not anticipate further difficulties. Appellee stated it was not until 2005

that “things started to seem to get serious,” when Appellee noticed the wood

frame at the bottom of a window in his family room appeared rotted and

there was a large green hole. Appellee explained this observation in 2005

was the “big trigger” of some underlying defect to Appellee’s home.

Appellee said he learned for the first time, in May 2005, of Appellants’

litigation and settlement with Hurd Millwork due to Hurd Millwork’s

manufacture of defective windows installed in various homes in Appellee’s

development, including windows installed throughout Appellee’s home.

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Appellee filed a writ of summons against Appellants and Hurd Millwork on

May 24, 2005.

Under these circumstances, the point at which Appellee should have

been reasonably aware of his “injury” was an issue of fact for the court to

decide at the bench trial. See Nicolaou, supra; Gleason, supra; E.J.M.,

supra. The record shows Appellee did not possess sufficient critical facts to

put him on notice of a systemic problem in his home until 2005, when he

observed the large green hole and subsequently learned of the litigation

between Appellants and Hurd Millwork. See Haggart, supra. Thus, we see

no reason to disturb the court’s conclusion that the discovery rule tolled the

applicable two-year statute of limitations concerning Appellee’s negligence,

negligent misrepresentation, and intentional misrepresentation/fraud claims.

See Good, supra. Therefore, Appellants’ first and second issues merit no

relief.

For purposes of disposition, we combine Appellants’ third, sixth,

seventh, and ninth issues. In their third issue, Appellants argue only a

builder impliedly warrants that a home is constructed in a reasonably

workmanlike manner and is fit for habitation. Appellants assert an implied

warranty of habitability does not extend to a developer or other parties.

Appellants contend that Gavin Mitchell Corporation is the builder of

Appellee’s home, as set forth in the agreement of sale. Appellants suggest

Appellee can maintain a cause of action for breach of implied warranty

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against only Gavin Mitchell Corporation, so Appellee’s breach of implied

warranty claim against the remaining Appellants fails as a matter of law.

Likewise, Appellants aver Appellee’s breach of express warranty claim

against the non-builder Appellants fails because only the builder issued the

warranty at issue.

Appellants also insist Appellee’s property is not a “good,” subject to

express warranties under Pennsylvania’s Uniform Commercial Code, so

Appellee’s breach of express warranty claim fails as a matter of law. To the

extent Appellee could succeed on his breach of express warranty claim,

Appellants maintain it is barred by the applicable four-year statute of

limitations because Appellee first became aware of problems with his

windows in December 2000, but he did not file his writ of summons until

May 2005. Appellants submit Appellee’s claim for breach of implied

warranty is similarly barred by the applicable four-year statute of limitations,

which begins to run from the date of delivery of the “defective product.”

Appellants further argue Appellee cannot recover damages under a

breach of warranty theory where Appellee did not give Appellants an

opportunity to make all necessary repairs. Appellants maintain Appellee

failed to report to Appellants numerous issues with the house between 2003

and 2005, and did not let Appellants review cost estimates or bid on the

projects before Appellee hired his own contractors to make repairs.

Appellants insist the “hindrance of performance” rule prohibits Appellee from

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recovering under a breach of warranty theory for any alleged defects in the

property which Appellee did not report to Appellants and/or for which

Appellee did not give Appellants the chance to make repairs.5

In their sixth issue, Appellants argue the property sat in an allegedly

defective condition from August 2005, when Appellee’s civil engineering

expert Mr. Honig first visited the property, until the fall of 2008, when the

remediation began. Appellants also insist Mr. Honig did not inspect the

property in the state it was in at the time of closing and saw the property

only after Appellee had his own contractors make some repairs. Appellants

claim Mr. Honig did not determine which damages resulted from the

property in its original condition versus any damages Appellee sustained

after his own contractors made modifications to the property. Appellants

contend Appellee failed to report to Appellants all problems Appellee

discovered with the home and failed to give Appellants the opportunity to

make repairs before hiring his own contractors. Appellants emphasize that

Appellee failed to mitigate his damages.

5 Appellants also complain Appellee cannot recover on his breach of express
warranty claim where he failed to present evidence at trial of the warranty
standards referred to in paragraph 9 of the agreement of sale. Appellants
cite no law to support this position, so this particular claim is waived. See
Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining arguments
which are not appropriately developed due to failure to cite any authority in
support of contention are waived on appeal).

Additionally, Appellants maintain Appellee cannot recover punitive damages
for any of breach of warranty claims. We resolve this particular claim in our
discussion of Appellants’ fourth issue on appeal.

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J-A17040-16

In their seventh issue, Appellants argue Appellee did not assert a

cause of action for breach of the agreement of sale. Appellants assert

Appellee’s sole contract claim against Appellants was for breach of express

warranty. Appellants emphasize Appellee did not seek to amend the

complaint to add a count for breach of the agreement of sale. Even if

Appellee had sought leave to add a count for breach of the agreement of

sale, Appellants contend that claim is barred by the applicable four-year

statute of limitations where Appellee was aware of the alleged defects in the

house in late 2000 and early 2001.

In their ninth issue, Appellants argue that all of Appellee’s claims arose

from the contractual relationship between the parties. Appellants assert

delay damages are not recoverable in actions for breach of contract.

Collectively, Appellants’ third, sixth, seventh, and ninth issues conclude the

court erred by granting Appellee relief on his various contract claims, and

this Court must reverse the judgment in favor of Appellee. We cannot agree

that relief is due on these claims.

Instantly, we have already decided Appellee’s action sounded in tort,

not in contract. Because the court entered a “general verdict” in favor of

Appellee, and the record supports the court’s judgment in favor of Appellee

on his tort claims, we do not have to consider Appellants’ contract challenges

to Appellee’s claims. See Halper, supra. Nothing in the record indicates

that Appellants expressly asked the court for a special verdict sheet and the

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J-A17040-16

court refused that request. See id. Thus, we give issues three, six, seven,6

and nine7 no further attention.

For purposes of disposition, we combine Appellants’ fourth and fifth

issues. In their fourth issue, Appellants argue Appellee’s complaint

improperly pled a count for punitive damages as an independent claim for

relief. Appellants assert a claim of punitive damages does not constitute its

own cause of action but is merely incidental to other causes of action.

Appellants contend Appellee was not entitled to punitive damages for any of

his tort claims because those claims fail as a matter of law for the reasons

stated in Appellants’ earlier arguments. Appellants insist punitive damages

are also unrecoverable on Appellee’s breach of warranty claims because the

Uniform Commercial Code does not permit recovery for punitive damages

and/or because the warranty claims are contract claims for which punitive

6 Moreover, with respect to issue seven, nothing in the record supports
Appellants’ contention that the court granted Appellee relief for a claim of
breach of the agreement of sale.

7 Regarding issue nine, Appellants also suggest that even if Appellee can
recover delay damages on his tort claims, Appellee is not entitled to delay
damages for any time in which he caused delay. Appellants assert Appellee
informed the court at a status conference on May 10, 2013, that he was in
the process of mediating his claim with Hurd Millwork, and was involved in
that process through at least the end of 2013. Appellants then baldly state
Appellee’s private mediation with Hurd Millwork lasted at least one year.
Nevertheless, Appellants’ sole citation to the record to support this claim is
to their own memorandum of law in response to Appellee’s motion for delay
damages. Appellants do not cite to actual places in the record which
indicate when, or for how long, Appellee delayed this case. Appellants
similarly fail to provide this Court with a calculation for their requested
remittitur. For these reasons, this particular claim is waived. See Lackner,
supra.

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J-A17040-16

damages are not available.8

In their fifth issue, Appellants argue that Appellee can assert a cause

of action under the UTPCPL against only the seller of the property, Chadwell

Associates, L.P. Appellants assert Appellee’s UTPCPL claim is based on

Appellants’ allegedly fraudulent and/or deceptive conduct in failing to notify

Appellee about Appellants’ litigation with Hurd Millwork. Nevertheless,

Appellants contend Appellee executed the agreement of sale on July 26,

1999, which was before the litigation with Hurd Millwork commenced.

Appellants suggest the “fraudulent or deceptive conduct” upon which

Appellee’s UTPCPL claim is based could not have occurred in connection with

the sale of Appellee’s property when Appellants were not involved in

litigation with Hurd Millwork at the time of the sale. Appellants conclude in

issues four and five that Appellee was not entitled to an award of punitive

damages for any of his claims, Appellee’s UTPCPL claim fails as a matter of

law, and this Court must reverse the judgment in favor of Appellee. We

cannot agree that any relief is due on these issues.

“[P]unitive damages are an ‘extreme remedy’ available only in the

most exceptional circumstances.” Doe v. Wyoming Valley Health Care

System, Inc., 987 A.2d 758, 768 (Pa.Super. 2009).

8 Appellants cite no law to support their assertion that punitive damages are
unrecoverable on Appellee’s breach of warranty claims, which could
constitute waiver of this particular argument. See id. Due to our
disposition of this issue, however, we decline to find waiver.

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J-A17040-16

Punitive damages may be appropriately awarded only
when the plaintiff 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. A defendant acts recklessly when his
conduct creates an unreasonable risk of physical harm to
another and such risk is substantially greater than that
which is necessary to make his conduct negligent. Thus, a
showing of mere negligence, or even gross negligence, will
not suffice to establish that punitive damages should be
imposed. Rather, the plaintiff must adduce evidence which
goes beyond a showing of negligence, evidence sufficient
to establish that the defendant’s acts amounted to
intentional, willful, wanton or reckless conduct….

Id. In determining whether punitive damages are warranted, “we must

analyze whether the complaint’s allegations establish that the actor actually

knew or had reason to know of facts which created a high risk of physical

harm to plaintiff. Further, the defendant must have proceeded to act in

conscious disregard of or indifference to that risk.” Field v. Philadelphia

Elec. Co., 565 A.2d 1170, 1182 (Pa.Super. 1989). When a plaintiff seeks

both compensatory and punitive damages, the “approved practice” is for the

fact-finder to list the amount of the damages separately, so that an

appellate court can review the appropriateness of one award without

disturbing the other. Golomb v. Korus, 396 A.2d 430 (Pa.Super. 1978);

Bergen v. Lit Bros., 45 A.2d 373 (Pa.Super. 1946).

“The UTPCPL is Pennsylvania’s consumer protection law and seeks to

prevent unfair methods of competition and unfair or deceptive acts or

practices in the conduct of any trade or commerce.” DeArmitt v. New

York Life Ins. Co., 73 A.3d 578, 591 (Pa.Super. 2013). “The purpose of

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J-A17040-16

the UTPCPL is to protect the public from unfair or deceptive business

practices.” Id. This Court has stated:

The UTPCPL provides a private right of action for anyone
who “suffers any ascertainable loss of money or property”
as a result of an unlawful method, act or practice. 73 P.S.
§ 201-9.2(a). Upon a finding of liability, the court has the
discretion to award “up to three times the actual damages
sustained” and provide any additional relief the court
deems proper. Id.

Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145,

151 (Pa.Super. 2012). Further, the court may award costs and attorney’s

fees to a prevailing plaintiff in a UTPCPL action, in addition to other relief

provided. 73 P.S. § 201-9.2(a).

Instantly, the record makes clear the court awarded Appellee only

compensatory damages. At trial, Appellee presented evidence that his costs

for remediation were $597,191.54. Appellee testified he actually expended

a total of $826,695.99, which included additional costs associated with the

remediation. The court awarded Appellee $500,000.00 in damages,

evidencing only a compensatory damages award. The court’s award of delay

damages in the amount of $248,287.67, on the basic award of $500,000.00

in damages, confirms the court awarded only compensatory damages, as

delay damages are not available for a punitive damages award.9 See

Pa.R.C.P. 238(a)(1-3) (stating that at request of plaintiff in civil action

9 The court awarded Appellee $248,287.67 in delay damages based on the
required Rule 238 calculation set forth in a chart Appellee submitted as part
of his post-trial motion for delay damages.

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J-A17040-16

seeking monetary relief for, inter alia, property damage, damages for delay

shall be added to amount of compensatory damages awarded against each

defendant found liable; delay damages shall be awarded for period of time

from date one year after date original process was first served up to date of

verdict; delay damages shall be calculated at rate equal to prime rate listed

in first edition of Wall Street Journal published for each calendar year for

which damages are awarded, plus one percent, not compounded);

Colodonato v. Consolidated Rail Corp., 504 Pa. 80, 470 A.2d 475 (1983)

(explaining Rule 238 delay damages are, in essence, extension of

compensatory damages necessary to make plaintiff whole; holding punitive

damages must be excluded from computation of delay damages). Moreover,

if the court had awarded punitive damages, then it would have entered a

separate award. See Golomb, supra; Bergen, supra.

Likewise, nothing in the record indicates the court awarded damages

under the UTPCPL. Significantly, the court’s general award of damages did

not mention double or treble damages, or costs or attorney’s fees. See 73

P.S. § 201-9.2(a); DeArmitt, supra; Bennett, supra. Rather, the record

confirms the court awarded only compensatory damages in an amount below

what Appellee requested, and added delay damages calculated on that lower

amount. There is simply no evidence on this record to support Appellants’

claims that the court awarded punitive damages or granted Appellee relief

on his UTPCPL count. Consequently, Appellants are not entitled to relief on

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issues four or five.

In their eighth issue, Appellants argue that all of Appellee’s alleged

damages and claims stem from the defective windows manufactured by

Hurd Millwork. Appellants admit that they stipulated the windows installed

in Appellee’s home were defective. Appellants assert that Appellee failed to

present any evidence to distinguish the liability resulting from the defective

windows and doors from the liability resulting from the work of Appellants

themselves or contractors Appellants hired to work on the property.

Appellants insist Hurd Millwork is responsible for the defects and damages at

issue. Appellants conclude they are entitled to an award of indemnification

against Hurd Millwork for any and all liability, and this Court must grant

Appellants appropriate relief. We cannot agree that relief is due on this

claim.

Instantly, Appellants filed a cross-claim in this matter alleging Hurd

Millwork was solely or jointly liable for Appellee’s injuries. Nevertheless, in

the month before trial commenced, Appellants’ counsel sent a letter to the

trial court’s administrative assistant expressly stating Appellants did not

intend to present claims against any third parties at trial. (See Letter to

Administrative Assistant to Honorable James F. Proud, dated 12/1/14, at 1;

R.R. at 360a). At trial, Appellants presented no evidence to support their

cross-claim and simply rested at the conclusion of Appellee’s case.

Appellants do not explain on appeal how they preserved their cross-claim in

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light of these actions. Rather, the record shows Appellants effectively

abandoned their cross-claim. Moreover, Appellants had already reached a

settlement with Hurd Millwork in October 2002, ostensibly for damages

involving the defective windows installed in Appellee’s home. Appellants

cannot recover twice for the same claim. See D’Adamo v. Erie Ins.

Exchange, 4 A.3d 1090 (Pa.Super. 2010) (explaining general rule of

damages that party cannot recover twice for same injury; purpose of this

rule of damages in any context is to avoid unjust enrichment). Based upon

the foregoing, we conclude none of Appellants’ claims on appeal merits

relief. Accordingly, we affirm.

Judgment affirmed.

Judge Platt did not participate in the consideration or decision of this

case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/21/2019

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