Kelly Sys., Inc. v. Leonard S. Fiore, Inc.

198 A.3d 1087

KELLY SYSTEMS, INC.

v.LEONARD S. FIORE, INC.

v.OGP Architects, LLP, Appellant

No. 1714 WDA 2017

Superior Court of Pennsylvania.

Argued June 6, 2018

Filed October 31, 2018

Joseph A. Venuti, Jr., Mt. Laurel, New Jersey, for appellant.

Richard W. Saxe, Jr., Pittsburgh, for appellee.

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

OPINION BY MUSMANNO, J.:

OGP Architects, LLP ("OGP"), appeals from the Order granting the "Motion for Determination as to Necessity of Certificate of Merit" filed by Leonard S. Fiore, Inc. ("Fiore"), and declaring that Fiore was not required to file a Pa.R.C.P. 1042.3 Certificate of Merit in support of its Pa.R.C.P. 2252 Complaint (the "Joinder Complaint") to join OGP as an additional defendant. We affirm.

Fiore, a general contractor, was hired to build the "core and shell" of a building in State College, Pennsylvania (the "Project"). Fiore entered into a contract (the "Kelly Subcontract") with Kelly Systems, Inc. ("Kelly"), to install exterior wall panels on the building. Fiore entered into a separate contract (the "OGP Subcontract") with OGP to provide architectural designs for the Project. Kelly used the OGP drawings to calculate its bid for the Project and to complete construction.

On October 4, 2016, Kelly requested a change order with Fiore, pursuant to the terms of the Kelly Subcontract,¹ allegedly due to OGP's architectural drawings calling for an "impossible to construct" mounting system. Kelly advised Fiore that its proposed solution would cost $225,126.18 more than the original contract price. Fiore rejected the change order. Kelly subsequently submitted a letter to Fiore, requesting that Fiore reconsider the rejection, and advising that Kelly intended to proceed with its proposed solution. Fiore never accepted the change order, and Kelly continued to work on the Project, including implementing its proposed solution to the allegedly defective designs.

On January 12, 2017, Kelly filed a Complaint ("Kelly's Complaint") against Fiore, seeking, inter alia , payment of $225,000.00 for the additional costs caused by the allegedly defective design. Fiore filed an Answer, in which it argued, inter alia , that it is not responsible for the additional costs allegedly incurred by Kelly. Fiore subsequently filed the Joinder Complaint, joining OGP as an additional defendant, and incorporating, without admitting, the allegations made in the Complaint. Fiore additionally alleged that "OGP's design documents and information provided under the [OGP S]ubcontract deviate from the acceptable professional standards ... [and] to the extent any of Kelly's alleged damages, in whole or in part, result from OGP's acts or omissions ... OGP is responsible and liable for Kelly's damages." Joinder Complaint, 3/17/17, at ¶¶ 17-18.

OGP filed a Pa.R.C.P. 1042.6 Notice of intent to enter judgment of non pros against Fiore, for Fiore's failure to file a certificate of merit with the Joinder Complaint. Subsequently, Fiore filed a Motion seeking a determination by the trial court as to whether Fiore was required to file a certificate of merit. Following a hearing and submission of briefs, the trial court entered an Order declaring that Fiore was not required to file a certificate of merit, because Fiore's negligence claim is related to the claims raised in Kelly's Complaint. OGP thereafter filed the instant appeal.

OGP's issue on appeal is as follows:

Whether the trial court erred in finding that [Kelly] pled a negligence claim against Fiore in submitting defective design specifications and/or in rejecting a change order as a result[,] and that therefore[,] Fiore's claims for contribution and indemnification against OGP by incorporation of [Kelly's] "bogus" averments[,] without verifying the truth thereof in the [J]oinder [C]omplaint[,] related to the "acts of negligence" set forth in [Kelly's] [C]omplaint, which then did not require Fiore to file a certificate of merit under [Pa.R.C.P.] 1042.3(C)(2) [?]

Brief for Appellant at 6.

Prior to addressing OGP's claim, we must determine whether this Court has jurisdiction to entertain the instant appeal.² See Pennsy Supply, Inc. v. Mumma , 921 A.2d 1184, 1198 n.10 (Pa. Super. 2007) (stating that "[t]his Court may raise matters regarding its jurisdiction sua sponte. "). This Court "has jurisdiction to entertain appeals taken (1) as of right from a final order, ... (2) from interlocutory orders by permission, ... (3) from certain interlocutory orders as of right, ... and (4) from certain collateral orders...." Redevelopment Auth. v. Int'l Ins. Co. , 454 Pa.Super. 374, 685 A.2d 581, 585 (1996) (citations omitted).

OGP alleges that its appeal is from a collateral order pursuant to Pa.R.A.P. 313. See Brief for Appellant at 2. OGP argues that the trial court's Order can be addressed without analyzing the underlying central issue of the case, i.e. , Fiore's entitlement to damages, because whether Fiore must file a certificate of merit is a "procedural mechanism that does not resolve any substantive aspect of the claims." Id. According to OGP, resolving this issue is of great importance, because the rule regarding certificates of merit "minimize[s] the time and expense that may be incurred" by the parties to the litigation. Id. OGP asserts that if its claim is not reviewed now, the protection granted by the certificate of merit rule – avoiding litigation of baseless claims – will be irreparably lost. Id. at 2-3.

The collateral order doctrine

permits a party to take an immediate appeal as of right from an otherwise unappealable interlocutory order if the order meets three requirements: (1) the order must be separable from, and collateral to, the main cause of action; (2) the right involved must be too important to be denied review; and (3) the question presented must be such that if review is postponed until after final judgment, the claim will be irreparably lost.

Commonwealth v. Harris , 612 Pa. 576, 32 A.3d 243, 248 (2011) (citing Pa.R.A.P. 313(b) ).

Rule 313 must be interpreted narrowly, and the requirements for an appealable collateral order remain stringent in order to prevent undue corrosion of the final order rule. To that end, each prong of the collateral order doctrine must be clearly present before an order may be considered collateral.

Melvin v. Doe , 575 Pa. 264, 836 A.2d 42, 46–47 (2003) (citation omitted). "In adopting a narrow construction, we endeavor to avoid piecemeal determinations and the consequent protraction of litigation. Such piecemeal litigation imposes a substantial burden on the orderly administration of justice." Rae v. Pa. Funeral Dirs. Ass'n , 602 Pa. 65, 977 A.2d 1121, 1129 (2009) (citations and quotation marks omitted).

Here, the resolution of whether Fiore must file a certificate of merit requires no analysis of the merits of Fiore's underlying claim. See K.C. v. L.A. , 633 Pa. 722, 128 A.3d 774, 778 (2015) (stating that "an order is separable from the main cause of action if it is entirely distinct from the underlying issue in the case and if it can be resolved without an analysis of the merits of the underlying dispute." (quotation marks omitted) ).

Additionally, there is a strong public interest in deterring frivolous negligence claims. See Geniviva v. Frisk , 555 Pa. 589, 725 A.2d 1209, 1214 (1999) (stating that "[o]nly those claims that involve interests deeply rooted in public policy can be considered too important to [be] denied review." (quotation marks and citation omitted) ); see also Warren v. Folk , 886 A.2d 305, 307 (Pa. Super. 2005) (stating that "[t]he goal of the certificate of merit is to weed out clearly nonmeritorious lawsuits early in the litigation process.").

Finally, OGP's claim that Fiore must file a certificate of merit would be irreparably lost if the matter proceeded to trial. Accordingly, OGP's appeal is from a collateral order, and we will review its claim on the merits.

"[T]he interpretation and application of a Pennsylvania Rule of Civil Procedure presents a question of law.... Accordingly, ... our standard of review is de novo , and our scope of review is plenary." Barrick v. Holy Spirit Hosp. of the Sisters of Christian Charity , 32 A.3d 800, 808 (Pa. Super. 2011) (citations and quotation marks omitted).

OGP contends that the trial court erred in finding that Kelly pled a negligence claim against Fiore, which allowed Fiore to not file a certificate of merit for its negligence claim against OGP. Brief for Appellant at 16, 19. OGP argues that Kelly's claims against Fiore are contract-based, whereas Fiore's claims against OGP are tort-based. Id. at 19-21. OGP claims that Kelly did not allege any acts of negligence against Fiore, but instead, all of the averments in Kelly's Complaint revolve exclusively around the denial of Kelly's change order, which process is defined in the Kelly Subcontract. Id. at 20. OGP further alleges that the trial court failed to consider that Kelly's claims are based on the implied duty of good faith and fair dealing, which "arises under the law of contracts, not under the law of torts." Id. at 21 (citations omitted). Lastly, OGP alleges that it would be contrary to the spirit of the certificate of merit requirement for this Court to allow Fiore to pursue a professional negligence claim solely by "incorporation of [the] bogus averments" set forth in Kelly's Complaint, "without admitting the truth thereof." Id. (quotation marks omitted).

In its Opinion, the trial court addressed OGP's claim as follows:

Specific rules of civil procedure apply for an action in professional liability by a patient or client of a licensed professional or a partnership, unincorporated association, corporation, or other entity responsible for a licensed professional who deviated from the professional standard. Pa.R.C.P. 1042.1 [ ]. The rule lists professions covered by the rules, including architects. Pa.R.C.P. 1042.1(iii). An action in professional negligence is different from an action in ordinary negligence[,] as a

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