J-S82012-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    DIEGO CORREA, AN INDIVIDUAL,                   IN THE SUPERIOR COURT
                                                             OF
                                                        PENNSYLVANIA
                             Appellant

                        v.

    CMC GENERAL CONTRACTING, LLC, A
    PENNSYLVANIA CORPORATION, AND
    RICHARD CLARK, AN INDIVIDUAL,

                             Appellees                 No. 85 WDA 2017


               Appeal from the Order Entered December 12, 2016
               In the Court of Common Pleas of Allegheny County
                      Civil Division at No(s): AR 15-001113


BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.:                         FILED MARCH 14, 2018

        Appellant, Diego Correa, an individual, appeals from the trial court’s

order granting summary judgment in favor of Appellees, CMC General

Contracting, LLC (referred to herein as CMC), a Pennsylvania Corporation, and

Richard Clark, an individual. We affirm in part, reverse in part, and remand

for further proceedings.

        The trial court summarized the factual background and procedural

history of this case as follows:
        On December 12, 2016, this [c]ourt dismissed [Mr. Correa’s]
        lawsuit upon [Appellees’] Motion for Summary Judgment, after


____________________________________________


*   Former Justice specially assigned to the Superior Court.
**   Retired Senior Judge assigned to the Superior Court.
J-S82012-17


       argument and considering [b]riefs of both parties. [Mr. Correa]
       appeals from the dismissal.

       [Mr. Correa] filed an Arbitration Complaint which sought to hold
       [Appellees] responsible for allegedly installing a defective roof on
       his residence, which caused leaks and water damage.

       Mr. Correa found evidence of water leaks on his bedroom ceiling
       in 2011. He never discovered the source of the leak, but
       contracted with [Appellees] in March of 2011 to replace the entire
       roof. The roof was replaced in April of 2011.

       [Mr. Correa] complained in July of 2012 that the roof was leaking
       again. [Appellees] made efforts to fix the leaks, but did not find
       the source. On or about August of 2015, approximately three (3)
       years later, [Mr. Correa] engaged Home Depot to replace the roof
       that [Appellees] installed in 2011, which Home Depot completed.
       [Mr. Correa] claims that the roof no longer leaks.

       In 2015, [Mr. Correa] filed a Complaint in Arbitration against
       [Appellees], consisting of six (6) counts: breach of contract…,[1]
       negligence…, [U]nfair [T]rade [P]ractices and Consumer
       Protection Law[ (UTPCPL), 73 P.S. § 201-1 et seq,] breach of
       warranty and implied breach of warranty.

       An Arbitration Hearing was held November 12, 2015, wherein [Mr.
       Correa] produced no expert witness that [Appellees’] work caused
       the roof to leak and subsequent water damage. Rather, [Mr.
       Correa] offered his own admittedly lay opinion and speculated that
       the spacing of the shingles at 6”, instead of 5”, and the lack of an
       ice/water dam was the sole cause of the leak. [Mr. Correa] admits
       that he did not engage [Appellees] to find the leak, merely to
       replace the entire roof. He conceded that he himself has no
       expertise in roofing or the matter of the cause of the leak or that
       it was something [Appellees] did in replacing the roof which
       caused the leak.

          Q: Mr. Correa – and I am not trying to sound offensive or
          anything. Are you a roofer?

          A: No, I am not.


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1Mr. Correa filed separate breach of contract counts against Appellee CMC
and Appellee Clark.

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          Q: So, you don’t consider yourself an expert on any roofing
          or shingles or anything like that?

          A: Well, I’ve learned a lot since this happened, but-

          Q: You don’t consider yourself an expert?

          A: I am not an experienced roofer or an expert, no.

       Despite the lack of any expert testimony to support [Mr. Correa’s]
       speculation, the panel awarded $35,000.00 to him. During the
       hearing, [Appellees] learned the identity of the Home Depot
       installation specialist, Mike Boyle,[2] who replaced the roof in
       2015.

       Mike Boyle was deposed. When he arrived at [Mr. Correa’s] home
       to examine the roof, the entire roof which [Appellees] installed
       had already been torn off and placed in the dumpster. The only
       portion remaining was the plywood layer. Because Home Depot’s
       policy was to remove all water damaged plywood and replace it,
       Mike Boyle thoroughly inspected it. He testified that if the roof
       had in fact been leaking, the plywood would have evidence of any
       water damage.

          A: If the roof has had a leak, it’s very evident. The material
          is real “punky,” as we say. If it’s plywood, a lot of time it’s
          delaminating other black spots from the water, sitting there
          for a lengthy period of time. There was no evidence [of]
          any issues with the roof at the time. We didn’t replace any
          material on the existing roof.

                                          [***]

          A: From what I saw, there was no evidence that the roof
          was leaking.

          Q: And you’re basing that solely by looking at the plywood?

          A: Yes.

          Q: So, in all instances were [sic] a roof is leaking, the
          plywood has to show some signs of it?

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2 In their briefs, the parties refer to the installation specialist as Mike Boyd,
not Mike Boyle. See Mr. Correa’s Brief at 15; Appellees’ Brief at 9 n.4. Our
review of the record indicates that Boyle is the correct last name.

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         A: In most cases, yes. There’s usually water marks in the
         plywood, depending on the plywood, it could be
         delaminating. Depending on how long it has leaked, it could
         be rotted. There’s usually ways we can usually see.

         Q: Did you see the entire plywood of the roof?

         A: Yeah, we walked the whole roof.

         Q: So, you saw it entirely exposed?

         A: Yes.

      Based upon his experience and a visual inspection of the entire
      plywood roof, Mike Boyle was unable to find any roof leakage from
      the roof installed by [Appellees].

Trial Court Opinion (TCO), 3/8/2017, at 2-4 (internal citations to record

omitted).

      As mentioned supra, the trial court granted summary judgment in favor

of Appellees on all of Mr. Correa’s claims. Thereafter, Mr. Correa filed a timely

notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal. The trial court subsequently

issued a Rule 1925(a) opinion.

      Presently, Mr. Correa raises the following issues for our review:
         1. Whether the facts, including but not limited to [Appellees’]
            implicit affirmation that the cause of Mr. Correa’s damages
            was a leak in the roof, the testimony of Mr. Correa[,] and
            the fact that a subsequent roof replacement corrected the
            leakage[,] establish[] a genuine issue of material fact which
            must be resolved by a fact-finder?

         2. Whether the facts presented warrant denial of [Appellees’]
            Motion for Summary Judgment under a Res Ipsa Loquitur
            theory?

         3. Whether the failure to raise, mention and/or argue a count
            in an argument for summary judgment precludes dismissal
            of that [c]ount and/or whether the available evidence


                                      -4-
J-S82012-17


            establishes a genuine issue of material fact so as to require
            consideration by a fact-finder?

Mr. Correa’s Brief at 3.

      Initially, we set forth our standard of review:
      [S]ummary judgment is appropriate only in those cases where the
      record clearly demonstrates that there is no genuine issue of
      material fact and that the moving party is entitled to judgment as
      a matter of law. When considering a motion for summary
      judgment, the trial court must take all facts of record and
      reasonable inferences therefrom in a light most favorable to the
      non-moving party. In so doing, the trial court must resolve all
      doubts as to the existence of a genuine issue of material fact
      against the moving party, and, thus, may only grant summary
      judgment where the right to such judgment is clear and free from
      all doubt. On appellate review, then, an appellate court may
      reverse a grant of summary judgment if there has been an error
      of law or an abuse of discretion. But the issue as to whether there
      are no genuine issues as to any material fact presents a question
      of law, and therefore, on that question our standard of review is
      de novo. This means we need not defer to the determinations
      made by the lower tribunals. To the extent that this Court must
      resolve a question of law, we shall review the grant of summary
      judgment in the context of the entire record.

Kennedy v. Robert Morris University, 133 A.3d 38, 41 (Pa. Super. 2016)

(citation omitted).

      In his first issue, Mr. Correa argues that “the facts, including but not

limited to [Appellees’] implicit affirmation that the cause of Mr. Correa’s

damages was a leak in the roof, the testimony of Mr. Correa[,] and the fact

that a subsequent roof replacement corrected the leakage[,] establish[] a

genuine issue of material fact which must be resolved by a fact-finder[.]” See

Mr. Correa’s Brief at 3.   Relatedly, he claims that no expert is needed to

establish that Appellees’ work caused his damages, as “[o]ne need not be a



                                     -5-
J-S82012-17



physicist to understand that rainwater does not fall upon the earth and rise

up to enter through the ceilings of Mr. Correa’s second floor rooms.” Id. at

13. We address these contentions in turn.

       To begin, with regard to his breach of contract and negligence claims,

Mr. Correa argues that he has presented sufficient evidence to establish a

genuine issue of material fact that must be resolved by a fact-finder. See id.3

We reiterate that Mr. Correa alleges, inter alia, that Appellees breached the

contract to replace his roof by failing to act with reasonable care and

competence, and were negligent in failing to perform work which prevented

water from entering into the premises.4 See Complaint, 3/9/2015, at ¶¶ 15,

25. He advances that a genuine issue of material fact exists for those claims

because: (1) Appellees “established by its actions its belief as to the cause of

the leaks and the fact that it would repair said leaks by replacing the roof[,]”

id. at 15;5 (2) Mr. Correa testified at arbitration that — though there was
____________________________________________


3 As discussed further infra, Mr. Correa argues that Appellees did not include
his breach of warranty and UTPCPL claims in their motion for summary
judgment. See Mr. Correa’s Brief at 19-20.

4 Appellees point out that they were “hired by Mr. Correa solely to replace the
roof, not to investigate or locate the cause of the existing water leaks.”
Appellees’ Brief at 4 (citation omitted). See also TCO at 3 (“[Mr. Correa]
admits that he did not engage [Appellees] to find the leak, merely to replace
the entire roof.”).

5 To elaborate, Mr. Correa claims that he “contracted with [Appellees] to
replace a roof in order to correct a problem with a leaking roof. Implicit in the
acceptance of this contract is the acceptance by [Appellees] that the problem
addressed, leakage, was the result of a bad roof.” Mr. Correa’s Brief at 13.



                                           -6-
J-S82012-17



water damage before Appellees worked on the roof — the water damage

became worse after Appellees’ roofing work, see id. at 9-10, 15;6 and (3) a

subsequent repair of the roof by another contractor did stop the leakage, id.

at 15.    Yet, none of this evidence establishes that — or explains how —

Appellees’ work on the roof caused the leaking, particularly given that Mr.

Correa had struggled with leaks before Appellees’ work commenced. Further,

the trial court acknowledges that, although Mr. Correa suggests that the leak

occurred because Appellees allegedly failed to install an ice/water dam and

improperly spaced the shingles, Mr. Correa “did not preserve the roof for

examination prior to filing this lawsuit, so potential witnesses beyond [Mr.

Correa] himself had no means to find fault with the roof or associate its

condition in any way with [Mr. Correa’s] description of a potential roof leak.”

TCO at 5; see also Mr. Correa’s Brief at 8.

       Next, Mr. Correa contests whether he needed an expert to prove

causation. He states, “[e]xpert testimony is required only where the subject

matter is beyond the scope of understanding of a jury. Nothing about the

leaky roof is so complex as to require an expert.” Id. at 6. He cites to Storm

v. Golden, 538 A.2d 61 (Pa. Super. 1988), for the proposition that “[e]xpert
____________________________________________


6 But see Appellees’ Brief at 7 (“This argument assumes … that the source of
the water damage was water leaking from a roof and, in particular, the roof
[Appellees] installed. The argument fails to take into account the other
possible causes or sources for water leaking into one’s residence, including
gaps in [the] exterior of the residence, fascia, soffit vents, deteriorated bricks
or mortar, faulty plumbing or ventilation systems, and the real possibility that
the pre-existing water damage simply worsened over time independent from
any action of [Appellees].”).

                                           -7-
J-S82012-17



testimony becomes necessary when the subject matter of the inquiry is one

involving special skills and training not common to the ordinary lay person.”

Id. at 64 (citations omitted); see also Mr. Correa’s Brief at 12. Moreover, he

points out that expert testimony as to causation is not required “where there

is an obvious causal relationship between the injury complained of and the

alleged negligent act.” Mr. Correa’s Brief at 11 (quoting Matthews v. Clarion

Hospital, 742 A.2d 1111, 1112 (Pa. Super. 1999) (emphasis in original;

citation and internal quotation marks omitted)).

     We disagree with Mr. Correa that expert testimony was unnecessary

here. As Appellees aptly explain:
     Mr. Correa identifies two potential areas where [Appellees] may
     have deviated from the installation contract: 1) installation of the
     ice/water dam and 2) installing the shingles with a 6-inch instead
     of a 5-inch overlap. However, the record is devoid of any
     evidence, including the opinion of an expert witness, supporting
     his position that these deviations, if true, caused the water
     damage alleged in this case.

     The installation of a residential roof and the investigation of the
     source of water damages requires some technical expertise and
     construction experience. [Mr. Correa] is essentially arguing that
     if the inside of a home is damaged, it must necessarily be from
     water leaking from the roof. While experience teaches that water
     entering the home will cause damage, the issue raised by [Mr.
     Correa’s] claims is whether his particular damage is caused by
     water entering from a leaky roof. And, if so, whether the leak was
     from the existing roof or the roof installed by [Appellees].
     Whether the installation of ice/water protection or the spacing of
     shingles caused [Mr. Correa’s] property damage[] requires
     knowledge and experience beyond that possessed by an average
     person. This is especially true when [Mr. Correa’s] property was
     already damaged by water.




                                    -8-
J-S82012-17



Appellees’ Brief at 4-5 (footnote omitted).7

       We concur with Appellees’ analysis, and do not find the causal

relationship between Appellees’ work and Mr. Correa’s damages to be so

obvious as to eliminate the need for expert testimony.           Additionally, as

mentioned above, Mr. Correa did not preserve the roof installed by Appellees

for examination prior to filing this lawsuit. See TCO at 5. Because Mr. Correa

has proffered no evidence to establish that Appellees’ work caused the water

damage he experienced, the trial court did not err in granting summary

judgment in favor of Appellees on this basis.

       In his second issue, Mr. Correa argues that, “[w]hen considered

pursuant to a theory of [r]es [i]psa [l]oquitur, there exists sufficient evidence

of causation so as to survive a [m]otion for [s]ummary [j]udgment.”            Mr.

Correa’s Brief at 17.       Mr. Correa insists that “ongoing leakage does not

ordinarily occur after a contractor has been hired to repair the condition in the

absence of negligence.” Id. at 18-19. He cites to Quinby v. Plumsteadville

Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), which explains:
       Res ipsa loquitur allows juries to infer negligence from the
       circumstances surrounding the injury. Res ipsa loquitur, meaning
       literally “the thing speaks for itself,” is “a shorthand expression
       for circumstantial proof of negligence—a rule of evidence.”
       Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 99 (1974).
       It is a rule that provides that a plaintiff may satisfy his burden of
____________________________________________


7 See also TCO at 5 (“In order to make out a prima facie case, it was [Mr.
Correa’s] burden to prove that [Appellees] caused a leak and water damage
by installing shingles at 6 [inch] overlap and not installing an[] ice/water dam.
… [Mr. Correa] not only did not offer expert evidence to prove [Appellees’]
alleged work caused a leak, [Mr. Correa] offers his own uneducated opinion.”).

                                           -9-
J-S82012-17


      producing evidence of a defendant’s negligence by proving that he
      has been injured by a casualty of a sort that normally would not
      have occurred in the absence of the defendant’s negligence.
      WILLIAM L. PROSSER, LAW OF TORTS §§ 39, 40 (4th ed. 1971)
      (calling res ipsa loquitur a “simple matter of circumstantial
      evidence”). As noted, the Restatement (Second) of Torts § 328D
      formulates the evidentiary theory of res ipsa loquitur as follows:

         (1) It may be inferred that harm suffered by the plaintiff is
         caused by negligence of the defendant when

            (a) the event is of a kind which ordinarily does not occur
            in the absence of negligence;

            (b) other responsible causes, including the conduct of the
            plaintiff and third persons, are sufficiently eliminated by
            the evidence; and

            (c) the indicated negligence is within the scope of the
            defendant’s duty to the plaintiff.

         (2) It is the function of the court to determine whether the
         inference may reasonably be drawn by the jury, or whether
         it must necessarily be drawn.

         (3) It is the function of the jury to determine whether the
         inference is to be drawn in any case where different
         conclusions may reasonably be reached.

      Rest. (Second) Torts § 328D. See also Gilbert, 457 Pa. 602, 327
      A.2d 94 (adopting res ipsa loquitur as defined in the Restatement
      (Second) of Torts § 328D).

Quinby, 907 A.2d at 1071 (footnotes omitted); see also Mr. Correa’s Brief

at 17-18.

      The trial court rejected Mr. Correa’s res ipsa loquitur theory, pointing to

the Restatement (Second) Torts § 328D(1)(b), supra (“It may be inferred

that harm suffered by the plaintiff is caused by negligence of the defendant

when … other responsible causes, including the conduct of the plaintiff and

third persons, are sufficiently eliminated by the evidence[.]”). The trial court


                                     - 10 -
J-S82012-17



observed that Mr. Correa did not present evidence to sufficiently eliminate

other responsible causes, as Mr. Correa’s argument “fails to acknowledge that

the pre-existing leakage[,] which was not remedied by the new roof, was

possibly the result of some cause or condition of another area of the home

which remains unknown….” TCO at 5. In response, Mr. Correa advances that

“the plaintiff is not required to exclude all other possible conclusions beyond

a reasonable doubt, and it is enough that he makes out a case from which the

jury may reasonably conclude that the negligence was, more probably than

not, that of the defendant.” Mr. Correa’s Brief at 19 (quoting Restatement

(Second) of Torts § 328D (1965) (Comment f)).

      Again, we disagree with Mr. Correa’s argument.             As Appellees

persuasively set forth:
      Prior to contracting with [Appellees] for the replacement roof, Mr.
      Correa suffered water damage to the inside of his residence. He
      did not hire anyone to repair that damage, or investigate the
      cause of that damage. He simply assumed his original roof was
      leaking water and needed to be replaced. The record is devoid of
      any evidence eliminating other possible causes for the water
      leaking into Mr. Correa’s residence. Although Mr. Correa correctly
      contends that he isn’t required to exclude all other possible
      causes, he fails to exclude even one (1) other possible cause of
      the water damage. Section 328(D)(1)(b) requires that other
      causes be “sufficiently” eliminated from consideration by the
      evidence, thus placing a burden upon [Mr. Correa] to diligently
      investigate those other causes before claiming eligibility for the
      causal inference inherent in the theory of rea ipsa loquitur. [Mr.
      Correa] failed to diligently investigate any other responsible
      causes, including any potential failure to mitigate or repair the
      pre-existing water damage.

Appellees’ Brief at 11-12 (internal citations omitted).



                                     - 11 -
J-S82012-17



      Mr. Correa has not sufficiently eliminated other possible causes for the

water damage, and we cannot conclude that Appellees’ roofing more probably

than not caused the water damage to Mr. Correa’s home. Accordingly, we

determine that Mr. Correa cannot invoke the doctrine of res ipsa loquitur here.

      In his third issue, Mr. Correa states that “[t]he [t]rial [c]ourt erred when

it failed to limit the award of [s]ummary [j]udgment to those charges raised

in the [m]otion filed by [Appellees].” Mr. Correa’s Brief at 19. Mr. Correa

claims that, although Appellees’ only mention of Mr. Correa’s claims relating

to breach of warranty and UTPCPL “was to recognize their existence in the

[c]omplaint[,]” the trial court nevertheless granted summary judgment in

favor of Appellees on those claims.       Id. at 20.    Further, in addition to

exceeding the scope of Appellees’ summary judgment motion, Mr. Correa

claims that the evidence establishes material issues of fact which render

summary judgment on his breach of warranty and UTPCPL claims improper.

See id.

      We reverse the trial court’s entry of summary judgment in favor of

Appellees on Mr. Correa’s breach of warranty and UTPCPL claims, and remand

for further proceedings. Appellees’ motion for summary judgment appears to

us to challenge only Mr. Correa’s negligence and breach of contract claims,

while barely even acknowledging his breach of warranty and UTPCPL claims.

We are unsure whether Appellees intended to exclude discussion of those

claims, mistakenly overlooked them, or aimed to include them but did not do

so clearly enough. In any event, Appellees do not present any argument in

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J-S82012-17



their brief to convince us that their motion for summary judgment indeed

encompassed such claims, and the trial court’s Rule 1925(a) opinion does not

address this issue despite Mr. Correa’s raising it in his Rule 1925(b) statement.

While we recognize that it will be difficult for Mr. Correa to succeed on his

breach of warranty and UTPCPL claims given the lack of causal connection

between Appellees’ work and the water damage, we note that Mr. Correa has

raised a claim under the Home Improvement Consumer Protection Act, 73 P.S.

§ 517.1 et seq., which he says amounts to a violation of the UTPCPL.8 See

Mr. Correa’s Brief at 19-21.         Because the parties have not argued issues

specifically pertaining to breach of warranty and the UTPCPL before the trial

court, and the trial court has not appeared to have considered those claims,

we remand this matter so that the trial court may address them in the first

instance. See Branton v. Nicholas Meat, LLC, 159 A.3d 540, 561-62 n.21

(Pa. Super. 2017) (remanding case so that the trial court could rule on the

issue in the first instance).

       Order affirmed in part and reversed in part. Case remanded for further

proceedings consistent with this memorandum. Jurisdiction relinquished.




____________________________________________


8 Specifically, Mr. Correa claims that Appellees’ contract did not contain, inter
alia, required information regarding insurance coverage under 73 P.S. §
517.7(a)(11). See Mr. Correa’s Brief at 20-21.

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J-S82012-17


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2018




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