       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

 ST. PHILIP’S EVANGELICAL                    )
 LUTHERAN CHURCH OF                          )
 WILMINGTON, DELAWARE,                       )
                                             )
       Plaintiff,                            )
                                             )   C.A. No. N18C-01-098 CLS
                v.                           )
                                             )
 DELMARVA POWER & LIGHT                      )
 COMPANY,                                    )
                                             )
       Defendant.                            )
                                             )
                                             )

                            Date Submitted: May 3, 2018
                            Date Decided: July 31, 2018


            On Defendant Delmarva Power & Light Co.’s Motion to Dismiss.
                     DENIED, in part, and GRANTED, in part.


                                     OPINION




David G. Culley, Esquire, Tybout, Redfearn & Pell, 750 Shipyard Drive, Suite
400, Wilmington, Delaware, 19801. Attorney for Plaintiff.
Vicki L. Shoemaker, Esquire, Pepco Holdings, LLC, 500 N. Wakefield Drive,
92DC42, Newark, Delaware, 19702. Attorney for Defendant.



Scott, J.
                                         1
      This action arises from an agreement between St. Philips Evangelical

Lutheran Church of Wilmington (Plaintiff) and Delmarva Power & Light Co.

(Defendant) by which Delmarva would relocate underground electrical transmission

equipment located on the property where St. Philips built its new facility.




                       Factual and Procedural Background

      St. Philips brought this cause of action alleging breach of contract, fraud, and

trespass and negligence. Delmarva seeks dismissal of the trespass and negligence

count as well as the count of fraud. Plaintiff is seeking compensatory and punitive

damages.

      St. Philips owns a parcel of land located at 5320 Limestone Road in

Wilmington, Delaware. The property is bounded on two sides by Limestone Road

and Ferris Drive. In order to construct their new facility St. Philips was required to

relocate certain underground utility cables that existed on the property prior to their

acquisition of the property. In July 2015, the parties entered into an agreement for

Defendant to relocate the lines. Plaintiff paid a deposit for the estimated cost of the

project in the amount of $72,500. The relocation work was completed later in July

2015 for which Plaintiff was billed $116,800.




                                          2
                                  Parties Assertions

        Plaintiff alleges they entered into a contract for the relocation of underground

power lines running through their property parallel to Limestone Road in

Wilmington, Delaware. The complaint states Defendant undertook that work by the

request of Plaintiff, and the work along Ferris Drive was undertaken by Defendant

of their own accord. The complaint states this work along Ferris Drive was “more

than three times as long” as the work completed along Limestone Road.1

        Plaintiff’s complaint for fraud is a claim of fraud in the inducement. Plaintiff

claims they were induced to pay a deposit of $72,500 prior to the commencement of

work with the assurance that a reconciliation of costs would be provided at the

completion of Defendant’s work. Plaintiff further alleges Defendant’s conduct after

work was completed is indicative of Defendant’s intention not to honor the

contractual terms agreed by the parties. Plaintiff claims they reasonably relied on

the assurances made by Defendant that a cost reconciliation of the work requested

and the work undertaken would be provided after completion. As a result of their

reliance Plaintiff claims they are owed damages in the amount of the difference

between the total amount paid, minus the work performed parallel to Limestone




1
    Pl. Resp. @8.
                                            3
Road. In connection to the fraud claim, Plaintiff seeks an award of punitive

damages.

      Plaintiff’s negligence claim seeks reimbursement for work completed to

restore the land affected by Defendant’s excavation work. Plaintiff claims they were

cited by New Castle County and barred from continuing work until the area

disturbed by Defendant was restored and stabilized. Plaintiff claims the restoration

work required an additional expenditure of $4,200 for this work which should have

been completed by Defendant as part of their facility relocation work.

      Defendant moves to dismiss the count of fraud, and the combined count of

negligence and trespass. Defendant argues Plaintiff cannot satisfy the elements of

trespass, and the statute of limitations has expired for a claim of negligence.

      On the count of trespass, Defendant argues they had consent to enter

Plaintiff’s land under the contract to relocate the power lines.         Additionally,

Defendant argues the existence of an easement over the land which grants Defendant

privilege to enter and work on the property precludes an action for trespass as a

matter of law.

      As to negligence, Defendant argues the relevant statute of limitations has

expired. Defendant argues the relevant statute is 10 Del C. §8107 under which “no

action … shall be brought after the expiration of two years from the accruing of the

                                          4
cause of such action.”2 Defendant argues its work was completed as of August 12,

2015, and that shortly afterwards Plaintiff advised that their contractor completed

necessary work. Defendant argues Plaintiff should have been aware of any defect

in the work performed at that time.

      Additionally, Defendant argues Plaintiff has failed to meet the pleading

requirements for a claim of fraud. In their claim, Defendant alleges the complaint

of fraudulent representation is not pleaded with sufficient particularity, and that

Plaintiff has not provided any supporting facts to bolster a claim of fraud. As a

matter of law, Defendant urges the claim of fraud be dismissed with prejudice.

                               Standard of Review

      The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion

to dismiss is whether a plaintiff may recover under any reasonably conceivable set

of circumstances susceptible of proof under the complaint. 3         In making its

determination, the Court must accept all well-pleaded allegations in the complaint

as true and draw all reasonable factual inferences in favor of the non-moving party.4




2
  10 Del. C. § 8107.
3
  Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital
Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012) (citing Cent. Mortg.
Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
4
  Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del.1998); Nix v. Sawyer, 466 A.2d
407, 410 (Del.Super.Ct.1983).
                                       5
The complaint must be without merit as a matter of fact or law to be dismissed. 5

Therefore, if a plaintiff can recover under any conceivable set of circumstances

susceptible of proof under the complaint, the motion to dismiss will not be granted.6

                                       The Law
      Defendant urges the correct statute of limitations for the negligence claim is

governed by 10 Del. C. §8107 limiting the commencement of actions to two years

after the cause of the action.7 Plaintiff maintains the pertinent statute is the Delaware

“Builders Statute”.8 The Actions subject to 2-year Limitation statute offered by

Defendant relates to injuries inflicted upon personal property, the injury claimed at

present is an injury to realty contemplated by the “Builders Statute.”9

      Defendant is correct in their assertion that the “Builders Statute” is a statute

of repose. The “Builders Statute” provides a six-year limitation period on actions

for injury to real property flowing from a deficiency in the construction or alteration

of an improvement. “The limitations period begins to run at the earliest of several




5
  Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del.1970).
6
  Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent.
Mortg., 27 A.3d at 537).
7
  Id.
8
  10 Del. C. § 8127.
9
  See Nardo v. Guido DeAscanis & Sons, Inc., 254 A.2d 254 (Del. Super. Ct. 1969)
                                         6
designated dates, irrespective of the date of the injury.”10 The designated dates

include the date of completion set forth in the contract, the date of payment and the

date of substantial completion.11 Plaintiff’s Complaint was filed January 10, 2018.

The contract between the Parties was entered into on July 7, 2015. Should the

“Builders Statute” apply the earliest limitation period conceivable would be January

of 2021.

      Defendant argues the underground cables existed on the property prior to the

agreement with Plaintiff and as such they did not engage in “construction” as

required by the statute. The statute contemplates this narrow interpretation and

defines “construction” to include “alteration, [and] reconstruction […] of

improvements to real property.”12 The contract in question calls for the relocation

of the existing underground utility lines on Plaintiff’s property. The alteration of

existing lines on Plaintiff’s property brings the work performed by Defendant within

the scope of “construction” as defined in the “Builders Statute.”

      Furthermore, in City of Dover v. Int'l Tel. & Tel. Corp., the Delaware

Supreme Court held that an “improvement” need not enhance the value of a property


10
   City of Dover v. Int'l Tel. & Tel. Corp., 514 A.2d 1086, 1090 (Del. 1986) see
also Standard Chlorine of Delaware, Inc. v. Dover Steel Co., Inc., 1988 WL
32044, *1 (Del. Super. Ct. 1988).
11
   Standard Chlorine of Delaware, Inc. v. Dover Steel Co., Inc., 1988 WL 32044,
*1 (Del. Super. Ct. 1988).
12
   Id.
                                            7
to be considered “improvement.”13 In that case, the Supreme Court upheld the

Court’s finding that the erection of a utility pole fell within the definition of

construction of an “improvement” as contemplated under the statute.14 Similarly,

this Court has accepted “improvement” to include “[a] permanent addition to or

betterment of real property that enhances its capital value and that involves the

expenditure of labor and money and is designed to make the property more useful

or valuable as distinguished from ordinary repairs.”15 The Parties agree that in order

to make the property in question suitable for the construction of a new building it

was necessary to expend labor and money to relocate underground utility lines. The

Parties also agree the work performed was at the request of Plaintiff, indicating the

work was not an ordinary repair. The Court is satisfied that the relocation of the

underground utility lines so as to make the property suitable for further development

falls within the purview of the Delaware “Builders Statute” and as such Plaintiff’s

claim of negligence is not time barred. Therefore, the expenditure of the monies to

restore the area and stabilize with grass seed remains an issue.

      Defendant moves for dismissal of Plaintiff’s claim for trespass. Dismissal of

the trespass action is appropriate. It is well settled that “any unlawful entry upon


13
   City of Dover v. Int'l Tel. & Tel. Corp., 514 A.2d 1086, 1087 (Del. 1986).
14
   Id.
15
   Standard Chlorine of Delaware, Inc. v. Dover Steel Co., Inc., 1988 WL 32044,
at *2 (Del. Super. Ct. 1988).
                                            8
another's land constitutes a trespass.”16 More simply, “defendant must have entered

onto the plaintiff's land without consent or privilege.”17 The action for trespass

cannot succeed as a matter of law. The parties contracted for Defendant to enter the

property to perform repairs. Therefore, Defendant was on the property legally at all

times. Defendant’s motion to dismiss the trespass action is granted.

                                        Fraud

      Superior Court Civil Rule 9(b) requires claims of fraud to be pleaded with

particularity. To satisfy the particularity requirement the complaint must set forth

the time, place, and contents of the alleged fraudulent representation as well as the

individual against whom fraud is claimed. A claim for fraud must be pleaded with

the following elements:

      (1) a false representation, usually of fact, made by the defendant; (2)
      the defendant's knowledge or belief that the representation was false, or
      was made with reckless indifference to the truth; (3) an intent to induce
      the plaintiff to act or to refrain from acting; (4) the plaintiff's action or
      inaction was taken in justifiable reliance upon the representation; and
      (5) damage to the plaintiff as a result of such reliance.18




16
   Cochran v. City of Wilmington, 77 A. 963, 963 (Del. Super. Ct. 1909); See also
Williams v. Manning, 2009 WL 960670, at *8 (Del. Super. Ct. Mar. 13, 2009).
17
   Williams v. Manning, 2009 WL 960670, at *8 (Del. Super. Ct. Mar. 13, 2009).
18
   Crowhorn v. Nationwide Mut. Ins. Co., 2001 WL 695542 *4 (Del.Super., April
26, 2001) (quoting Stephenson v. Capano Development, Inc., 462 A.2d 1069, 1074
(Del.1983)).
                                         9
      In the present case, the Complaint fails to allege with sufficient particularity

any fraud that occurred prior to the Relocation Agreement’s execution that induced

Plaintiff into signing. Claims of fraud are held to a higher pleading standard.

Plaintiff pleaded they requested work to be done along Limestone Road, however

the Agreement includes work to be done along Ferris Drive as well. Plaintiff has

not included the time, place, and contents of any representations made by Defendant

that the Agreement is not a representation of what was negotiated. Therefore,

Plaintiffs claim of fraud must be dismissed.

      For the foregoing reasons, Defendant’s Motion to Dismiss is DENIED, in part, and

GRANTED, in part. Plaintiff’s claims of Trespass and Fraud are DISMISSED.

      IT IS SO ORDERED.




                                                    /s/ Calvin L. Scott
                                                    Judge Calvin L. Scott, Jr.




                                         10
