J-A01034-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 VILLAS AT PACKER PARK                     :   IN THE SUPERIOR COURT OF
 CONDOMINIUM ASSOCIATION                   :        PENNSYLVANIA
                                           :
                    Appellant              :
                                           :
                                           :
              v.                           :
                                           :
                                           :   No. 827 EDA 2018
 JPC GROUP, INC., JPG GENERAL              :
 CONTRACTORS, LENICK                       :
 CONSTRUCTION, INC. D/B/A                  :
 LENICK CARPENTERS III, INC., DEL          :
 SERVICES, MID ATLANTIC                    :
 MECHANICAL, CIMORELLI                     :
 CONSTRUCTION A/K/A CIMORELLI              :
 CONSTRUCTION & FENCE. CO., DALE           :
 CORPORATION, DJM CONSTRUCTION             :
 A/K/A DJM CONSTRUCTION CO.,               :
 INC., CRINITI CONSTRUCTION, INC.,         :
 G.L. WOLFGANG CONSTRUCTION                :
 COMPANY, HANCOCK BUILDING                 :
 ASSOCIATES, INC., UNION                   :
 ROOFING, INC., VOEGELE                    :
 MECHANICAL, INC., LPI                     :
 MECHANICAL, LLC, AND PROBUILD             :
 EAST, LLC,

                Appeal from the Order Entered April 7, 2017
    In the Court of Common Pleas of Philadelphia County Civil Division at
                     No(s): 03103 February Term, 2013

BEFORE: OTT, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                            FILED MAY 14, 2019

      In this appeal, Villas at Packer Park Condominium Association (“Villas”)

maintains that the trial court improperly applied the gist of the action doctrine

and erroneously concluded that the statute of limitations barred its contract

and warranty claims. We affirm.
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      The trial court aptly summarized the facts and procedural history of this

case as follows:

      Villas is a condominium development consisting of 23 multifamily
      building with four units in each building. Lenick Construction, Inc.
      (“Lenick”) was hired by the general contractor, Westrum Urban
      Construction, LLC (“Westrum”), to install windows and French
      doors at the Villas in or about May 1, 2006. In 2006, Villas unit
      owners began to complain of water infiltrating their individual
      units. Specifically, on November 21, 2006, homeowners wrote to
      Westrum representatives, including the superintendent, project
      manager, and vice president of operations and complained as
      follows:

            It has been two weeks since the consultant looked at
            our French doors, and nearly a week since we e-
            mailed you to let you know that the door continued to
            leak after the new strip was installed.

            I was just going through my files and this will be the
            ninth e-mail I have sent you about the French doors
            since October 28. We first made you aware of the
            problem last summer.

      Westrum investigated the complaints and informed the unit
      owners that upgraded doors were to be provided to eight
      homeowners. In September 2009, Westrum once again began
      receiving complaints of leaking roofs and sliding glass doors from
      homeowners. On September 15, 2009, counsel on behalf of two
      homeowners forwarded a letter to Westrum concerning the leaks,
      Westrum’s responsibility for defects concerning the construction
      and suggesting that Westrum investigate the construction and
      design defects.

      On February 28, 2013, Villas filed a complaint against Westrum
      Park Place L.P., Westrum Urban G.P., LLC, Westrum Construction
      LLC, John Westrum and John O. Mershon (“Westrum”) alleging
      deficiencies in the construction of the Villas’ development. On
      September 16, 2013, Westrum filed a writ to join Lenick and other
      subcontractors as additional defendants. The joinder complaint
      was filed on October 7, 2013 and amended on November 25,
      2013, December 9, 2013 and January 14, 2014. Westrum’s

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J-A01034-19


     joinder complaints alleged that Lenick and the other
     subcontractors breached their contracts with Westrum, breached
     the express and implied warranties within the contract and owed
     Westrum contractual and common law indemnity and
     contribution.

     From June 24, 2014 to August 30, 2014, the action was stayed by
     joint request of all the parties. During this period, Villas entered
     into a settlement agreement with the Westrum defendants
     wherein Westrum assigned its claims against Lenick to the Villas.
     On December 4, 2015, Villas amended the complaint as an
     assignee of Westrum and alleged claims for breach of contract,
     breach of implied warranty of workmanship, negligence and
     contribution and indemnity against Lenick.

     In September 2016, Lenick filed a partial motion for judgment on
     the pleadings and a partial motion for summary judgment. On
     February 7, 2017, the court granted the partial motion for
     judgment on the pleadings and dismissed the claim for negligence.
     Additionally, the court denied Lenick’s motion for summary
     judgment finding that Villas’ claims for breach of contract and
     breach of implied duty of workmanship as an assignee of Westrum
     were timely filed. Lenick filed a motion for reconsideration of the
     order denying the motion for summary judgment. Upon review of
     the motion for reconsideration, the court vacated its February 7,
     2017 order in part denying the partial motion for summary
     judgment based on the issue of statute of limitations and ordered
     oral argument. . . After oral argument and a review of the papers
     and record, the court on April 7, 2017, granted Lenick’s motion
     for partial summary judgment and dismissed the claims for breach
     of contract and breach of the implied warranty of workmanship as
     barred by the statute of limitations.

Trial Court Pa.R.A.P. 1925(a) Opinion (“TCO”), filed June 29, 2018, at 1-3

(footnotes omitted). This timely appeal followed.

     Villas presents the following issues for our review:

     I.    Did the trial court commit an error of law in granting
           Lenick[’s] Motion for Judgment on the Pleadings where
           neither the gist of the action doctrine nor the economic loss
           doctrine barred [Villas] negligence claims?



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      II.    Did the trial court commit an error of law when   it ruled that
             the statute of limitations on the first party     defendants’
             joinder claims began to run before plaintiff      initiated its
             original action and, therefore, before the         first party
             defendant suffered a harm?

      III.   Did the trial court commit an error of law or abuse its
             discretion in ruling that there were no material facts in
             dispute and that evidence was clear and free from doubt as
             to when the statute of limitations on the third party joinder
             claims began to run?

      IV.    Did the trial court err in granting summary judgment on a
             deficient evidentiary record based on unauthenticated
             emails, letters, and inadmissible hearsay evidence?

Villas’ Br. at 8-9 (suggested answered omitted).

      First, Villas maintains that the trial court erred in granting Lenick’s

motion for partial judgment on the pleadings and challenges the trial court’s

application of the gist of the action doctrine.

      Entry of judgment on the pleadings is permitted under
      Pennsylvania Rule of Civil Procedure 1034, which provides that
      “after pleadings are closed, but within such time as not to
      unreasonably delay trial, any party may move for judgment on
      the pleadings.” Pa.R.C.P. 1034(a). A motion for judgment on the
      pleadings is similar to a demurrer. It may be entered when there
      are no disputed issues of fact and the moving party is entitled to
      judgment as a matter of law.

      Appellate review of an order granting a motion for judgment on
      the pleadings is plenary. The appellate court will apply the same
      standard employed by the trial court. A trial court must confine its
      consideration to the pleadings and relevant documents. The court
      must accept as true all well pleaded statements of fact,
      admissions, and any documents properly attached to the
      pleadings presented by the party against whom the motion is filed,
      considering only those facts which were specifically admitted.




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      We will affirm the grant of such a motion only when the moving
      party’s right to succeed is certain and the case is so free from
      doubt that the trial would clearly be a fruitless exercise.

Sw. Energy Prod. Co. v. Forest Res., LLC, 83 A.3d 177, 185 (Pa.Super.

2013) (quoting Coleman v. Duane Morris, LLP, 58 A.3d 833, 836 (Pa.Super.

2012)).

      Villas maintains that the trial court erred in finding its contract and

negligence claims were barred by the gist of the action doctrine because: (1)

there is no contract between Villas and Lenick; (2) “a claim in negligence can

lie in the negligent performance of a construction contract”; and (3) “there is

an issue of public policy.” Villas’ Br. at 24.

      The gist of the action doctrine provides that:

      [A]n alleged tort claim against a party to a contract, based on the
      party’s actions undertaken in the course of carrying out a
      contractual agreement, is barred when the gist or gravamen of
      the cause of action stated in the complaint although sounding in
      tort, is, in actuality, a claim against the party for breach of its
      contractual obligations.

Bruno v. Erie Ins. Co., 106 A.3d 48, 53 (Pa. 2014).

      “[T]he nature of the duty breached, as alleged in the plaintiff’s

pleadings, is determinative of the gist of the action.” Id. at 63 (emphasis in

original). If the allegations of the complaint “substantially constitute

assertions of a defendant’s complete failure to perform duties originating from

a contract – a nonfeasance – the plaintiff’s action will be deemed to be breach

of contract.” Id. However, an action sounds in tort “if the allegations




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substantially concern the defendant’s negligent breach of a duty which exists

independently and regardless of the contract – a misfeasance.” Id.

        Here, the trial court concluded that the gist of Villas’ claim against Lenick

was for breach of contract. Specifically, it opined:

        Here, Villas’ claim for negligence as an assignee of Westrum
        against Lenick arises from the contract between Westrum and
        Lenick. The duties allegedly breached, “performing their work on
        the Project and in furnishing, supplying, and installing materials
        to the Project,” are duties grounded in the contract between
        Westrum and Lenick and the success of the claim squarely
        depended on the contract. As such, Villas’ claim for negligence
        based on the gist of the action doctrine. Additionally, in the Third
        Amended complaint, Villas also alleged a negligence claim on its
        own behalf against Lenick. The trial court also properly dismissed
        this claim since the duty owed by Lenick was a contractual duty
        owed to Westrum. Contrary to Villas[’] argument, the duty was
        not societal but contractual. Since no contract existed between
        Villas, on its own behalf, and Lenick[,] the claim for negligence
        was also barred by the gist of the action doctrine.

TCO at 7 (quoting Villas’ Third Amended Complaint, ¶ 97).

        We agree with the trial court’s analysis. Villas claimed Lenick was

negligent based on Lenick’s performance of duties Lenick assumed in contract.

The fact that there was no contract between Villas and Lenick does not change

the analysis, because Villas is the assignee of Westrum. Villas’ public policy

argument likewise carries no weight, as it runs counter to our Supreme Court’s

decision in Bruno, which set forth the “basis of the duty” test that we apply

here.

        Villas’ argument that it is entitled to assert its negligence claim against

Lenick is based on a substantial overreading of Bruno. There, the Supreme


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J-A01034-19


Court considered whether insureds could maintain a negligence action against

their homeowner’s insurer for the alleged actions of the insurer’s agents, an

engineer and an adjuster, in allegedly giving bad advice about mold exposure.

Bruno, 106 A.3d at 70-71. The Court concluded that such a claim was

permissible. It explained that the insurer’s duties under the contract did not

include giving proper advice, such that the negligence claim was proper. Id.

at 71.

         Thus, under Bruno, a defendant’s having assumed duties in a contract

does not necessarily require dismissal of every negligence claim that a party

having rights under that contract asserts against that defendant. However, it

does where, as here, the negligence claim is based on the defendant’s duties

under the contract. The trial court did not abuse its discretion in applying the

gist of the action doctrine to grant the motion for partial judgment on the

pleadings.

         In its second issue, Villas argues that the trial court erred in concluding

that the statute of limitations “began to run for these claims when Westrum,

not the Villas, knew or should have known that it was injured since Lenick

was in contractual privity with Westrum not with Villas.” Villas’ Br. at 26-27

(emphasis in original) (citing to TCO at 5). It maintains that because of this

incorrect determination, the court erred in concluding that the claim was

barred by the statute of limitations. Id. at 26.




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J-A01034-19


      The statute of limitations for a claim of breach of contract and implied

duty of workmanship is four years. See 42 Pa.C.S.A. § 5525(a). The statute

of limitations begins to run when the plaintiff knew or should have known of

the breach. See Romeo & Sons, Inc. v. P.C. Yezbak & Son, Inc,. 652 A.2d

830, 832 (Pa. 1995).

      Here, the trial court concluded that “[t]he clock for statute of limitations

purposes began to run for these claims when Westrum, not Villas, knew or

should have known that it was injured since Lenick was in contractual privity

with Westrum and not with Villas.” TCO at 5. It concluded that it became

aware that Westrum was injured on September 11, 2009. Id. at 6. It based

its conclusion on the following:

      The record shows that Westrum became aware of the water
      infiltration issues on September 11, 2009, the date the Villas
      community manager informed Westrum representatives that the
      homeowners were experiencing leaks from roofs and sliding glass
      doors. The Westrum defendants acknowledged receipt of the
      notice by responding to the email and asking Villas to provide a
      more detailed investigation. The email placed Westrum on inquiry
      notice that leaks existed. Thereafter on September 15, 2009,
      Villas sent a letter to Westrum following up the initial notice of
      leaks. On September 11, 2009, Westrum had within its possession
      sufficient information to put it on notice that it was harmed and to
      investigate the cause of this harm.

TCO at 5-6.

      We agree with the trial court that the statute of limitations began to run

when Westrum, not Villas, became aware of the defect, since Levick had a

contractual obligation to Westrum, not Villas. The four-year period to file suit

ended on September 11, 2013. Therefore, “[s]ince Westrum filed its to join

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Lenick on September 16, 2013”, Villas claims were barred by the statute of

limitations. TCO at 6. No relief is due.

      For its last issue, related to the above claim, Villas argues that the trial

court’s determination of when the statute of limitations started to run is flawed

because it was based on inadmissible hearsay in the form of the letters and

emails. See Villas’ Br. at 34. It maintains that “a motion for summary

judgment cannot be supported or defeated by statements that include

inadmissible   hearsay    evidence.”   Id.   at   34   n.4   (quoting   Botkin   v.

Metropolitan Life Ins. Co., 907 A.2d 641, 649 (Pa.Super. 2006)). We agree

with the trial court that the emails and letters are admissible as business

records. See TCO at 5 n.15; see also Bank of Am., N.A. v. Gibson, 102

A.3d 462, 467 (Pa. Super. 2014) (concluding affidavit that referenced loan

history documents was not hearsay and court did not err in considering it

when granting a motion for summary judgment); Pa.R.E. 803(6). The trial

court did not abuse its discretion in relying on the emails and letters.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/14/19



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