Off. of Att'y Gen. v. Gillece Serv.

320 A.3d 790

Commonwealth of Pennsylvania, OFFICE OF ATTORNEY GENERAL, BY Attorney General Michelle HENRY

v.GILLECE SERVICES, LP, d/b/a Gillece Plumbing, Heating, Cooling, and Electrical, Inc., Gillece Plumbing and Heating, Inc., Rooter-Medic, Electric Medic, Gillece Plumbing and Heating, Inc., Thomas J. Gillece, individually and as Owner of Gillece Services, L.P., Gillece Energy, L.P., and Gillece Plumbing and Heating, Inc., James F. Hackwelder, individually and as Field Supervisor for Gillece Services, L.P., and Joseph Nikoula, individually and as Field Supervisor for Gillece Services, L.P.

Appeal of: Gillece Services, LP, Gillece Plumbing and Heating, Inc., and Thomas J. Gillece

No. 861 C.D. 2023

Commonwealth Court of Pennsylvania.

Argued May 23, 2024

Decided July 3, 2024

Appealed from No. GD 20-009374, Common Pleas Court of the County of Allegheny, Christine A. Ward, J.

John Linkosky, Carnegie, for Appellants Gillece Services, LP, Gillece Plumbing and Heating, Inc., and Thomas J. Gillece.

Anthony Thomas Kovalchick, Deputy Attorney General, Pittsburgh, for Appellee Commonwealth of Pennsylvania, Office of Attorney General, by Attorney General Michelle Henry.

BEFORE: HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE MATTHEW S. WOLF, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION BY SENIOR JUDGE LEADBETTER

This case concerns an issue of first impression: whether the Home Improvement Consumer Protection Act¹ (HICPA) requires a home improvement contractor to honor a cancellation request from a customer that is not made in writing—that is, whether the written notice requirement of the Unfair Trade Practices and Consumer Protection Law² (UTPCPL) applies to HICPA. Gillece Services, LP, Gillece Plumbing and Heating, Inc., and Thomas J. Gillece ³ (Contractors), a group of home improvement businesses and their majority owner, appeal from the order of the Court of Common Pleas of Allegheny County granting permanent injunctive relief⁴ requiring Contractors to honor requests for rescission made verbally or by any other medium. We affirm.

The relevant history of the case is as follows. Appellee, Commonwealth of Pennsylvania, Office of Attorney General, initiated this case pursuant to Section 4 of the UTPCPL, 73 P.S. § 201-4,⁵ to enjoin what it believed were prohibited business practices. In its complaint, the Commonwealth alleged that Contractors, inter alia, rejected timely efforts to cancel home improvement contracts (Count III).⁶ After the case had progressed through discovery and production of expert opinions, the Commonwealth filed a motion for partial summary judgment.⁷ The filings attendant to the motion establish that Contractors would receive phone calls from customers seeking to cancel home improvement contracts and, despite such notice, would proceed to send crews to the customers’ properties and attempt to commence work, refusing to honor the attempt at cancellation unless and until a signed notice was given to their employee or received at Contractors’ offices.

After hearing arguments, the trial court entered an order granting a permanent injunction with respect to the acts and practices alleged in Count III. The trial court found that Contractors had refused to honor customer requests to cancel home improvement contracts unless those requests were made in writing and hand-delivered to Contractors’ employee or corporate offices; had penalized customers to cancel by entering their properties without permission and commencing work; had failed to disclose that Contractors did not honor verbal cancellation requests; had failed to refund all payments within ten business days of receipt of notice of cancellation; and had misrepresented to a cus- tomer that his deposit was nonrefundable because he had not signed an emergency work authorization. (Trial Ct. Order, ¶ 4.) On appeal, Contractors do not dispute these findings.

The trial court concluded that Contractors violated Section 7(b) of HICPA, 73 P.S. § 517.7(b), by refusing to permit customers who signed a home improvement contract the ability to rescind those contracts within three business days and penalizing customers who rescinded their contracts; violated Section 7(a) of the UTPCPL, 73 P.S. § 201-7(a), by refusing to permit customers who signed a home improvement contract the ability to rescind their contract within three business days; violated Section 7(f) of UTPCPL, 73 P.S. § 201-7(f), by misrepresenting to customers their right to cancel their contracts; violated Section 7(g) of UTPCPL, 73 P.S. § 201-7(g), by failing to refund all payments made under a contract which a homeowner had validly canceled; and violated Section 7(j.1) of UTPCPL, 73 P.S. § 201-7(j.1), by misrepresenting to customers that their deposit was non-refundable without their signing an emergency work authorization. (Trial Ct. Order, ¶ 5).

Pursuant to Section 4 of the UTPCPL, 73 P.S. § 201-4, the trial court entered permanent injunctive relief,⁸ the following portion of which is appealed by Contractors:

A. [Contractors] shall permit customers to rescind their home improvement contracts without penalty within three (3) business days of the date of signing, regardless of the medium used by the customer to provide actual notice of cancellation;

B. [Contractors] shall permit customer to rescind within three (3) business days of the date of signing any contract for goods or services having a sale price of twenty-five dollars ($25) or more contracted to be sold at the buyer’s residence;

C. [Contractors] shall not misrepresent in any manner a customer’s right to cancel a home improvement contract;

D. [Contractors] shall refund within ten (10) business days all payments made under a contract or sale which was rescinded by the customer within three (3) business days of the date of signing.

(Trial Ct. Order, ¶ 16.A - D.)

Contractors filed the instant appeal and the trial court, after issuing an order directing the filing of a concise statement of errors complained of on appeal, issued an opinion in support of its order under Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925(a). On appeal, Contractors present various permutations of the sole substantive issue in the case,⁹ which may be distilled as fol- lows: whether the trial court erred in construing HICPA not to require written notice to cancel home improvement contracts.

We have carefully reviewed the trial court’s opinion issued pursuant to Pennsylvania Rule of Appellate Procedure 1925(a), and believe that it ably addresses this issue. Therefore, we adopt the opinion of the trial court in Commonwealth of Pennsylvania, Office of Attorney General v. Gillece Services, LP (C.C.P. Allegheny, No. GD-20-009374, filed September 22, 2023) (appended hereto), and affirm.

ORDER

AND NOW, this 3^rd day of July, 2024, the order of the Court of Common Pleas of Allegheny County granting the motion for partial summary judgment is hereby AFFIRMED.

Attachment A

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL, By Attorney General Josh Shapiro, Plaintiff,

v.

GILLECE SERVICES, LP, d/b/a GILLECE PLUMBING, HEATING, COOLING, AND ELECTRICAL, INC., GILLECE PLUMBING AND HEATING, INC., ROOTER-MEDIC, and ELECTRIC MEDIC, GILLECE PLUMBING AND HEATING, INC.;

THOMAS J. GILLECE, Individually and as Owner of GILLECE SERVICES, L.P., GILLECE ENERGY, L.P., and GILLECE PLUMBING AND HEATING, INC.;

JAMES F. HACKWELDER, Individually and as Field Supervisor for Gillece Services, L.P.; and

JOSEPH NIKOULA, Individually and as Field Supervisor for Gillece Services, L.P., Defendants.

CIVIL DIVISION

No.: GD 20-009374

HON. CHRISTINE WARD

OPINION

Counsel for Appellants

John Linkosky, Esq.

Pa. I.D. No. 46436

Linkosky & Associates 715 Washington Avenue Carnegie, PA 15106

Counsel for Plaintiff-Appellee

Jill T. Ambrose, Esq.

Pa. I.D. No. 323549

Office of Attorney General

1251 Waterfront Place,

Mezzanine Level

Pittsburgh, PA 15222

IN THE COURT OF COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA, OFFICE OF ATTORNEY GENERAL, By Attorney General Josh Shapiro, Plaintiff,

v.

GILLECE SERVICES, LP, d/b/a GILLECE PLUMBING. HEATING, COOLING, AND ELECTRICAL, INC., GILLECE PLUMBING AND HEATING, INC., ROOTER-MEDIC, and ELECTRIC MEDIC, GILLECE PLUMBING AND HEATING, INC.;

THOMAS J. GILLECE, Individually and as Owner of GILLECE SERVICES, L.P., GILLECE ENERGY, L.P., and GILLECE PLUMBING AND HEATING, INC.;

JAMES F. HACKWELDER, Individually and as Field Supervisor for Gillece Services, L.P.; and

JOSEPH NIKOULA, Individually and as Field Supervisor for Gillece Services, L.P., Defendants.

CIVIL DIVISION

No.: GD 20-009374

HON. CHRISTINE WARD

CIVIL DIVISION

OPINION

I. THE PARTIES.

Defendant Gillece Services. LP is a domestic limited partnership and registered home improvement contractor. Defendant Gillece Plumbing and Heating, Inc. is a general partner and minority owner of Defendant Gillece Services, LP (collectively, the "Corporate Defendants"). Defendant Thomas J. Gillece (hereinafter, "Gillece") is the President and majority owner/shareholder of both the Corporate Defendants. Gillece also manages the day-to-day operations of the Corporate Defendants. Defendants may collectively be referred to as the "Gillece Defendants".

Plaintiff is the Pennsylvania Office of Attorney General, which brought this action against the Defendants pursuant to 73 P.S. § 201-4 in order to enjoin what it argued were prohibited business practices.

II. PROCEDURAL HISTORY AND FACTUAL BACKGROUND.

73 P.S. § 201-4, a subsection of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (CPL)^1a provides that:

Whenever the Attorney General or a District Attorney has reason to believe that any person is using or is about to use any method, act or practice declared by section 3 of this act to be unlawful, and that proceedings would be in the public interest, he may bring an action in the name of the

...