Gongloff Contracting v. L. Robert Kimball , 119 A.3d 1070 ( 2015 )

J-A13018-15
2015 PA Super 149GONGLOFF CONTRACTING, L.L.C., IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
L. ROBERT KIMBALL & ASSOCIATES,
ARCHITECTS AND ENGINEERS, INC.,
Appellee No. 785 WDA 2014
Appeal from the Order Dated May 5, 2014
In the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-12-013865
BEFORE: PANELLA, SHOGAN, and OTT, JJ.
OPINION BY SHOGAN, J.: FILED JULY 08, 2015
Appellant, Gongloff Contracting, L.L.C., (“Gongloff”) appeals from
orders entered on April 18, 2013, and May 5, 2014, in the Court of Common
Pleas of Allegheny County. The order entered on April 18, 2013, granted the
motion for judgment on the pleadings of Appellee, L. Robert Kimball &
Associates, Architects and Engineers, Inc.’s (“Kimball”). That order was
made final on May 5, 2014, by an order on a stipulation to dismiss fewer
than all defendants pursuant to Pa.R.C.P. 229(b)(1). After careful
consideration, we reverse and remand for further proceedings.
Because this Court sits in review of the trial court’s grant of Kimball’s
motion for judgment on the pleadings, 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, are considered as
J-A13018-15
true. Citicorp North America, Inc. v. Thornton, 707 A.2d 536, 538 (Pa.
Super. 1998). The facts, then, are gleaned from Gongloff’s amended
complaint and, to a limited extent, its response to allegations raised in
Kimball’s new matter. See Altoona Regional Health System v. Schutt,
100 A.3d 260, 265 (Pa. Super. 2014); Swift v. Milner, 538 A.2d 28, 31
(Pa. Super. 1988) (in determining propriety of trial court’s award of
judgment on the pleadings, we accept as true all well-pleaded statements of
fact of non-moving party and “against that party only those facts specifically
admitted.”).
In 2009, California University of Pennsylvania (the “University”)
engaged Kimball as the architect-engineer for the construction of a
convocation center. After Kimball completed the design, the University hired
Whiting-Turner Contracting Company (“Whiting-Turner”) as the general
contractor. Whiting-Turner then entered into a contract with Kinsley
Construction, Inc. (“Kinsley”) to do the structural steel fabrication and
erection. On January 18, 2010, Kinsley entered into a subcontract
agreement with Gongloff, under which Gongloff agreed to provide all labor,
materials, and equipment to erect the structural steel for $990,230.00.
Am. Compl. at ¶¶ 9–12. Kinsley also entered into a subcontract with
Vulcraft Inc. (“Vulcraft”) to detail and fabricate the long-span steel trusses,
which would then be delivered to the site and erected by Gongloff. In
addition, Kinsley hired Josh Carney of Carney Engineering (“Carney”), a
-2-
J-A13018-15
registered professional engineer, to assist in the detailed design of the
structural steel. Id. at ¶¶ 15–16. Kimball’s design of the steel structure
was supplied to all of the aforementioned parties. Id. at ¶ 49.
In January and February of 2010, both Vulcraft and Carney raised
concerns about Kimball’s roof design for the convocation center. During
preconstruction meetings, they repeatedly opined that the entire design of
the roof system was faulty. “In particular, they warned that the header
beams that supported the roof trusses were drastically undersized.” Am.
Compl. ¶ at 17. Despite these concerns, on March 17, 2010, Gongloff began
to erect the steel structure that Kimball had designed. While Gongloff had to
address some design problems, work proceeded relatively smoothly for
about eight weeks. Id. at ¶ 20. However, at about mid-point in this eight-
week period, Vulcraft issued a letter maintaining that the Kimball-designed
roof system “was not adequate to bear the construction loads.” Id. at ¶ 21.
Kimball denied that the roof design was faulty. Id. at ¶ 22.
Shortly after Kimball’s assurances about the soundness of the design,
Kimball rejected Gongloff’s proposed erection procedure, even though it had
been approved by Carney, the structural engineer. At this point, Kimball
acknowledged that the as-designed trusses could not accommodate the
construction loads. Am. Compl. at ¶ 23. On May 3, 2010, Carney confirmed
that Kimball’s roof was “grossly inadequate.” Id. at ¶ 25.
-3-
J-A13018-15
Gongloff continued to experience a myriad of problems, including three
shut-downs of the steel erection project, traceable to Kimball’s “never-
before-utilized” defective design. Am. Compl. at ¶¶ 24–26, 30, 34.
Attempts to redesign the structure and address its structural inadequacies
substantially increased Gongloff’s costs. Id. at ¶¶ 27, 32, and 39. To
address the required adjustments, Gongloff submitted eighty-one change
order requests for the amount of additional work that was beyond the scope
of its original bid. Id. at ¶¶ 39–40. While some of the change orders were
initially approved and paid for by Kinsley, eventually Kinsley ceased making
payments. Id. at ¶¶ 41–42. In mid-February, 2011, Gongloff laid off its
crew and left the job-site. Id. at ¶ 42. Gongloff has been unable to fully
pay its vendors and suppliers on the project, and its overall reputation has
been significantly harmed. Id. at ¶¶ 43–44. Although the convocation
center is now complete and standing, Gongloff denies that the structural
system is the same as originally designed by Kimball. Gongloff’s Ans. to
Kimball’s New Matter at ¶ 68.
On August 6, 2012, Gongloff initiated this action against Kimball and
two of its engineers for negligent misrepresentation. Because Gongloff sued
the wrong Kimball entity, it filed an amended complaint on December 31,
2012, naming the correct party and dismissing the original individual
engineers. In response, Kimball filed an answer, new matter, and an
amended joinder complaint to join Whiting-Turner, Kinsley, and Carney.
-4-
J-A13018-15
Whiting-Turner and Kinsley filed preliminary objections to Kimball’s amended
joinder complaint.
After the pleadings closed, Kimball filed a motion for judgment on the
pleadings asserting that Gongloff’s claims were barred by both the statute of
limitations1 and application of the “economic loss doctrine.”2 Regarding the
latter argument, Gongloff disputed that the economic loss doctrine was
applicable, contending instead that its claim against Kimball was governed
by an explicit exception to the doctrine, i.e., an action for negligent
misrepresentation set forth in Section 552 of the Restatement (Second) of
Torts and adopted by the Pennsylvania Supreme Court in Bilt-Rite
Contractors, Inc. v. The Architectural Studio, 866 A.2d 270 (Pa. 2005).
Gongloff contended that the factual allegations of the amended complaint
asserted that Kimball: 1) either explicitly or implicitly represented that the
____________________________________________
1
The trial court concluded that the amended complaint was not time-
barred. Trial Court Opinion, 4/18/13, at 2. Kimball did not appeal this
aspect of the trial court’s decision.
2
“Our Supreme Court has defined the economic loss doctrine as providing
‘no cause of action [ ] for negligence that results solely in economic
damages unaccompanied by physical injury or property damage.’” Knight
v. Springfield Hyundai, 81 A.3d 940, 951–952 (Pa. Super. 2013) (quoting
Excavation Technologies, Inc. v. Columbia Gas Co. of Pennsylvania,
985 A.2d 840, 841 (Pa. 2009)).
-5-
J-A13018-15
structure could safely sustain all required construction loads and in situ3
loads; 2) either explicitly or implicitly represented that normal construction
methods could be employed to erect the structure; and 3) supplied false
information, in the form of its structural design of the project. According to
Gongloff, these assertions were sufficient to survive Kimball’s motion for
judgment on the pleadings.
On April 18, 2013, the trial court decided that Gongloff could not
pursue its negligent misrepresentation claim and granted Kimball’s motion
for judgment on the pleadings. The trial court explained its ruling, as
follows:
[Kimball’s] second argument deals with the economic loss
doctrine as it applies to the facts of the case. The economic loss
rule is that tort law is not intended to compensate parties for
losses suffered as a result of a breach of duties assumed only by
agreement. To recover in negligence there must be a showing of
harm above and beyond disappointed expectations evolving
solely from a prior agreement. Bilt-Rite v. The Architectural
Studio, 866 A.2d 270, 283 (Pa. 2005). The Bilt-Rite [] decision
adopted Section 552 of the Restatement ([S]econd) of Torts
entitled Information Supplied for the Guidance of Others. The
Supreme Court went on to recognize that a design professional’s
liability for economic damages to third parties cannot be without
limits. Id. 286.
The language of Section 552 requires that the design
professional make a negligent representation that is relied upon
____________________________________________
3
Earlier in the litigation, the parties offered different definitions of “in situ”
loads, but now apparently agree that the term refers to loads to which a
structure is subjected to when it is completed, e.g., accumulated snow on a
roof.
-6-
J-A13018-15
by the third party and causes the third party economic harm.
[Gongloff] alleges that Kimball either “expressly or impliedly”
represented that the structure could safely sustain all required
construction loads and in situ loads. No representation to that
effect is shown. [Gongloff] may have suffered economic loss but
cannot point to the negligent misrepresentation by Kimball that
led to the loss. The fact that the design was complex and
required further engineering and design by the contractor cannot
be attributed to any representation by Kimball.
Finally, [Gongloff] contends that Kimball explicitly or
impliedly represented that normal construction methods could be
employed to erect the structural steel. There is no express
representation concerning means and methods of construction.
In fact, Kimball required that the structural steel erector have
special credentials issued by the American Institute of Steel
Construction.
[Gongloff] did not have said credentials, although sub-
contractor Kinsley did. The requirement of special qualifications
for the steel erectors undermines [Gongloff’s] position that
Kimball implied that normal construction methods could be used
to erect the structural steel.
Trial Court Opinion, 4/18/13, at 2–3. The trial court did not address the
preliminary objections of the additional defendants.
On April 22, 2013, Gongloff appealed the April 18, 2013 order. On
March 6, 2014, a panel of this Court quashed the appeal, holding that the
trial court’s order granting Kimball’s motion for judgment on the pleadings
was not a final appealable order because the preliminary objections of the
additional defendants remained unresolved. Gongloff v. Kimball, et al.,
680 WDA 2013, 100 A.3d 297 (Pa. Super. March 6, 2014) (unpublished
memorandum at 8).
On March 17, 2014, Gongloff filed a motion for final order to dispose of
all claims of all parties in the trial court. Thereafter, the parties entered into
-7-
J-A13018-15
a stipulation to dismiss as to fewer than all defendants/additional defendants
pursuant to Pa.R.C.P. 229(b)(1). An order approving the stipulation was
signed on May 5, 2014. As the April 18, 2013 order granting Kimball’s
judgment on the pleadings motion was now final, Gongloff appealed to this
Court. Gongloff filed its Pa.R.A.P. 1925(b) statement of errors complained of
on appeal on May 22, 2014. On December 2, 2014, the trial court issued an
order adopting the reasons set forth in its April 18, 2013 Memorandum in
Lieu of Opinion pursuant to Pa.R.A.P. 1925(a).
Gongloff raises two issues on appeal:
1. Does Section 552 of the Restatement (Second) of Torts
require that a design professional make an explicit negligent
misrepresentation of a specific fact for a third party to
recover economic damages?
2. Did Gongloff properly allege that Kimball either “expressly”
or “impliedly” represented that the structure could safely
sustain all required in situ loads?
Gongloff’s Brief at 6 (emphasis in original). 4
____________________________________________
4
In its Pa.R.A.P. 1925(b) statement, Gongloff also referenced Kimball’s
alleged misrepresentation that the as-designed structure could safely sustain
all required construction loads. Gongloff’s Pa.R.A.P. 1925(b) statement, at
¶ 4. Before this Court, Gongloff’s “Statement of Questions Involved” limited
this issue to Kimball’s representation about the structure’s ability to handle
in situ loads. Gongloff’s Brief at 6. In the argument portion of its brief,
however, Gongloff reverts to its original challenge to the trial court’s holding
regarding both construction and in situ loads. Because Gongloff’s Statement
of Questions Presented as to this issue fairly suggests that it is contesting
the trial court’s conclusion concerning both construction and in situ loads, we
will not find the construction load component of the argument to be waived.
(Footnote Continued Next Page)
-8-
J-A13018-15
Our standard of review of judgment on the pleadings is well-settled.
A motion for judgment on the pleadings is similar to that of a demurrer in
that it may be entered only when there are no disputed issues of fact, and
the moving party is entitled to judgment as a matter of law. Rourke v.
Pennsylvania National Mutual Casualty Insurance Co., ___ A.3d ___,
2015 WL 1912914, at *2 (Pa. Super., filed April 28, 2015). Appellate review
of an order granting a motion for judgment on the pleadings is plenary, and
we apply the same standard employed by the trial court. Id. We will affirm
the grant of the 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.” Id. at *3 (citing Southwest Energy Production Co. v.
Forest Resources, LLC, 83 A.3d 177, 185 (Pa. Super. 2013) (citation
omitted)).
Gongloff first argues that the trial court committed legal error when it
construed Section 552 of the Restatement to require a design professional to
make an explicit negligent misrepresentation before a party can recover
economic damages. It offers instead that liability is premised upon the
_______________________
(Footnote Continued)
See Pa.R.A.P. 2116(a) (“the statement [of question involved] will be
deemed to include every subsidiary question involved or fairly suggested
thereby.”); See also Phillips v. Selig, 959 A.2d 420, 428 (Pa. Super.
2008) (overlooking appellant’s incomplete statement of question presented
when appellant developed the issue in argument section of his brief, and
omission did not impede ability to address merits of issue).
-9-
J-A13018-15
posture and relationship of the parties to the construction project. Our
standard of review of this legal question is de novo and our scope of review
is plenary. Egan v. USI Mid-Atlantic, Inc. 92 A.3d 1, 10 (Pa. Super.
2014) (citations omitted).
We begin with an overview of the tort of negligent misrepresentation.
The elements of a common law claim for negligent misrepresentation are:
“(1) a misrepresentation of a material fact; (2) made under circumstances in
which the misrepresenter ought to have known its falsity; (3) with an intent
to induce another to act on it; and (4) which results in injury to a party
acting in justifiable reliance on the misrepresentation.” Bilt-Rite, 866 A.2d
at 277 (quoting Bortz v. Noon, 729 A.2d 555, 561 (Pa. 1999)). Negligent
misrepresentation differs from intentional misrepresentation “in that the
misrepresentation must concern a material fact and the speaker need not
know his or her words are untrue, but must have failed to make a
reasonable investigation of the truth of these words.” Bortz, 729 A.2d at
561.
Pennsylvania law generally bars claims brought in negligence that
result solely in economic loss. David Pflumm Paving & Excavating, Inc.
v. Foundation Services Company, 816 A.2d 1164, 1168 (Pa. Super.
2003) (“This Court has consistently denied negligence claims that cause only
economic loss”). However, a narrow exception is found in Section 552 of the
- 10 -
J-A13018-15
Restatement (Second) of Torts entitled, “Information Negligently Supplied
for the Guidance of Others,” and provides:
(1) One who, in the course of his business, profession or
employment, or in any other transaction in which he has a
pecuniary interest, supplies false information for the guidance of
others in their business transactions, is subject to liability for
pecuniary loss caused to them by their justifiable reliance upon
the information, if he fails to exercise reasonable care or
competence in obtaining or communicating the information.
Restatement (Second) of Torts § 552(1).
In Bilt-Rite, the Pennsylvania Supreme Court adopted Section 552
and held that it applied in:
cases where information is negligently supplied by one in the
business of supplying information, such as an architect or design
professional, and where it is foreseeable that the information will
be used and relied upon by third persons, even if the third
parties have no direct contractual relationship with the supplier
of information.
866 A.2d at 287. The adoption of Section 552 was not meant to “supplant[]
the common law tort of negligent misrepresentation, but rather, [to] clarify[]
the contours of the tort as it applies to those in the business of providing
information to others.” Id.
Subsequently, in Excavation Technologies, Inc. v. Columbia Gas
Company of Pennsylvania, 936 A.2d 111 (Pa. Super. 2007) (en banc),
aff’d, 985 A.2d 840 (Pa. 2009), this Court explained the Supreme Court’s
justification for sanctioning potential Section 552 liability in disputes against
architects and other design professionals:
- 11 -
J-A13018-15
[O]ur Supreme Court found persuasive the rationale expressed
by the Court of Appeals of North Carolina in Davidson and Jones,
Inc. v. County of New Hanover, 41 N.C.App. 661, 255 S.E.2d 580(1979), cert. denied, 298 N.C. 295, 259 S.E.2d 911 (1979),
wherein the Davidson court stated:
An architect, in the performance of his contract with
his employer, is required to exercise the ability, skill,
and care customarily used by architects upon such
projects . . . . Where breach of such contract results
in foreseeable injury, economic or otherwise, to
persons so situated by their economic relations, and
community of interests as to impose a duty of due
care, we know of no reason why an architect cannot
be held liable for such injury. Liability arises from the
negligent breach of a common law duty of care
flowing from the parties’ working relationship.
Accordingly, we hold that an architect in the absence
of privity of contract may be sued by a general
contractor or the subcontractors working on a
construction project for economic loss foreseeably
resulting from breach of an architect’s common
law duty of due care in the performance of his
contract with the owner.
Bilt-Rite, at 480-481, 866 A.2d at 286 (quoting Davidson, 255
S.E.2d at 584) (emphasis added). A design professional is
typically responsible for the preparation of plans and
specifications (information) that are supplied to and used by
potential bidders in formulating a bid for a project. Additionally,
a design professional may make representations to the
contractor while performing administrative responsibilities, which
are either assumed or specifically made a part of his or her
contract with the owner. The design professional is paid a fee
for using his or her skills and training to provide information that
is relied on by others prior to and during construction. If the
plans and specifications prove to be erroneous, the contractor is
at grave risk of suffering economic loss. Under these
circumstances, it is quite clear that the design professional is
supplying information in his or her professional capacity, as part
of his or her business, for the guidance of others in a business
transaction. Furthermore, a design professional’s negligent
misrepresentation could injure a third party in a variety of ways.
Accordingly, the Supreme Court had little trouble reaching the
- 12 -
J-A13018-15
conclusion that the requirements of section 552(1) are met
under these circumstances. This was a logical conclusion
because there are numerous tasks performed by the design
professional on a typical project that support the conclusion that
he or she is in the business of supplying information.
Id. at 115. This Court then detailed the elements required to establish
liability under Section 552(1) of the Restatement:
the defendant is in the business of supplying information for the
guidance of others and the information provider must have a
pecuniary interest in the transaction; the information provided is
false; the information was justifiably relied upon; and the
defendant failed to exercise reasonable care in obtaining or
communicating the information.
Id. at 115–116. The Court, however, noted that the scope of liability under
Section 522(1) was limited to those known by the information provider who
are intending to engage in a commercial transaction and whom the provider
means to influence in that transaction with its information. Id. at 116.
We are persuaded that Excavation Technologies, interpreting the
reach of Bilt-Rite, could reasonably be understood to subject architects to
liability for Section 522 negligent misrepresentation claims when it is alleged
that those professionals negligently included faulty information in their
design documents. The design itself can be construed as a representation
by the architect that the plans and specifications, if followed, will result in a
successful project. If, however, construction in accordance with the design
is either impossible or increases the contractor’s costs beyond those
anticipated because of defects or false information included in the design,
the specter of liability is raised against the design professional.
- 13 -
J-A13018-15
Kimball, to the contrary, avers that courts applying Section 522
subsequent to Bilt-Rite have held that an “actual misrepresentation” is
required, citing State College Area School District v. Royal Bank of
Canada, 825 F. Supp. 2d 573, 584 (M.D. Pa. 2011), and that Bilt-Rite itself
refers to an “express representation” made by the architect. 866 A.2d at
272. Kimball asserts that the language in these cases requires Gongloff to
identify some particular communication or document provided by Kimball
that was false.
We do not agree that State College and Bilt-Rite compel such a
conclusion. In State College, a federal court, applying Pennsylvania law,
declared that “[a] negligent misrepresentation claim requires an actual
misrepresentation as opposed to assumptions on the part of the recipient.”
825 F.Supp.2d at 584 (citation omitted). The word “actual,” however,
differs in meaning from the word “express,” which was employed by the trial
court to describe Gongloff’s pleading requirements in this matter.5 Merriam–
Webster defines “actual” as “existing in fact.” MERRIAM–WEBSTER,
http://www.Merriam-Webster.com/dictionary/actual (last visited June 17,
2015). Indeed, the court in State College embraced this definition of
____________________________________________
5
We note that the trial court used the word “express” in rejecting
Gongloff’s assertion that Kimball represented that normal construction
methods could be utilized to erect the structural steel. Although Gongloff did
not appeal this specific trial court finding, we view the challenged language
as indicative of the trial court’s misunderstanding of the proper standard for
evaluating motions for judgment on the pleadings.
- 14 -
J-A13018-15
“actual” when it described its opposite meaning as “assum[ed].” 825
F.Supp. 2d at 584. The actual misrepresentation alleged by Gongloff here
was Kimball’s roof design, composed of tangible documents which exist in
fact.
“Express,” on the other hand, is defined as “directly, firmly, and
explicitly stated.” MERRIAM–WEBSTER, http://www.Merriam-
Webster.com/dictionary/ express (last visited June 17, 2015). The word
“express” contemplates a higher degree of exactitude than the word
“actual.” Accordingly, requiring Gongloff to explicitly pinpoint the specifics of
the faulty design, i.e., to refer to an express representation by Kimball, is
not endorsed by the language in State College, and, more significantly, is
inappropriate at the judgment on the pleadings stage.6
Nor does Bilt-Rite necessitate Gongloff’s precise identification of a
misrepresentation in the design documents. While Kimball is correct that in
its factual recital of the case, the Supreme Court detailed that the design
professional therein “expressly represented” that its aluminum curtain wall
“could be installed and constructed through the use of normal and
____________________________________________
6
Regardless, “pronouncements of the lower federal courts have only
persuasive, not binding, effect on the courts of this Commonwealth—
although we certainly are bound by the decisions of the U.S. Supreme Court
on questions of federal law.” In re Stevenson, 40 A.3d 1212, 1221 (Pa.
2012) (citation omitted).
- 15 -
J-A13018-15
reasonable means and methods, using standard construction design tables,”
see Bilt Rite, 866 A.2d at 272, the Court did not include an “express
representation” as an element of a Section 552 negligent misrepresentation
claim. Instead, Bilt-Rite explained that recovery under Section 552 is
permissible in cases where one in the business of supplying information,
such as an architect, negligently supplies such information when he knows
that third parties will likely use or rely on the information. Herndon
Borough Jackson Township Joint Municipality Authority v. Pentair
Pump Group, Inc., No. 4: 12-cv-01116, 2015 WL 2166097, at *7 (M.D.Pa.
May 5, 2015) (quoting Bilt-Rite, 866 A.2d at 287). Bilt-Rite requires only
that information, a rather general term, be negligently supplied by the
design professional. Accordingly, the trial court’s decision that Gongloff was
required to identify an express representation by Kimball to succeed on its
Section 522 claim was legally erroneous.
Our contrary legal conclusion, however, does not, in and of itself,
mandate reversal of the trial court’s decision. Gongloff cannot defeat entry
of judgment on the pleadings against it merely by contending in its amended
complaint that Kimball supplied design documents to the participants
involved in the convocation center construction. It also was required to
plead with some specificity that the documents included false information.
The parameters of Gongloff’s pleading obligation form the basis of
Gongloff’s second argument—that the trial court prematurely held that
- 16 -
J-A13018-15
Gongloff failed to prove what it averred. Gongloff asserts that the court
erred when it faulted Gongloff for failing to show that Kimball “explicitly or
impliedly represented that the structure could safely sustain all required
construction and in situ loads.” Trial Court Opinion, 4/18/13, at 3.7
Gongloff takes particular umbrage with the trial court’s language that “[no]
representation to that effect was shown,” id., because it contradicts what is
required when considering a motion for judgment on the pleadings. Gongloff
avers that use of the word “shown” indicates that instead of accepting
Gongloff’s assertion that Kimball either expressly or impliedly represented
that the structure could safely sustain the construction and in situ loads as
____________________________________________
7
In its appellate brief, Gongloff, for the first time, maintains that it
identified an express representation by Kimball as to the ability of the
structure to safely sustain all required construction loads. Gongloff claims
that the allegation included in paragraph fifty of its amended complaint that
Kimball either explicitly or impliedly represented that its structural design
was adequate was premised upon Rider E to the Agreement between the
University and Kimball. The Rider provided that the University’s approval of
“plans and specifications shall not diminish [Kimball’s] obligation to provide
plans and specifications that are adequate to accomplish the purposes of the
project.” Kimball’s Ans. and New Matter, Ex. A. Gongloff, however, did not
identify Rider E as an express representation by Kimball in its amended
complaint or in the related proceedings before the trial court. Thus, we will
not consider the significance of its language on appeal. See Majorsky v.
Douglas, 58 A.3d 1250, 1258 (Pa. Super. 2012) (rules of appellate
procedure mandate that “issues not raised in the lower court are waived and
cannot be raised for the first time on appeal) (quoting Pa.R.A.P. 302(a)).
- 17 -
J-A13018-15
true, the trial court determined that Gongloff failed to prove the assertion—
an obligation in conflict with Gongloff’s burden at this stage of the litigation.
We agree with Gongloff that the trial court’s finding that Gongloff failed
to show an express or implied representation implicates matters related to
proof, as opposed to matters accepted as true. We thus review the
allegations of the amended complaint to determine whether Gongloff has
alleged sufficient facts to meet the Bilt–Rite exception to the economic loss
doctrine.
First, Gongloff alleged that Kimball supplied its design to the parties
working on the convocation project “in order to provide guidance . . . as to
how the Convocation Center was to be built.” Am. Comp. at ¶ 49. Taken as
true, this language sufficiently alleges that Kimball understood it was
“foreseeable that the information [would] be used and relied upon by third
persons[.]” Bilt–Rite, 866 A.2d at 287. Second, Kimball clearly qualifies as
a design profession “in the business of supplying information[.]” Id.; Am.
Compl. at ¶ 5. Third, Gongloff alleged the following instances where the
feasibility of construction of the convocation center’s roof in accordance with
Kimball’s design was called into question or determined to be impossible,
thereby permitting an inference that the design included false information:
• during pre-construction meetings, Vulcraft and Carney stated that the
design of the never-before-utilized roof system was faulty, particularly
- 18 -
J-A13018-15
that “the header beams that supported the roof trusses were
drastically undersized.” Id. at ¶ 17.
• Brian Gongloff, Gongloff’s General Manager, articulated concerns
“about the adequacy of the roof truss system in the context of the
safety of Gongloff’s employees working on the roof during its
erection.” Id. at ¶ 18.
• On April 14, 2010, Vulcraft disseminated a letter “stating that the
entire long-span truss roof system, as designed by Kimball, was not
adequate to bear the construction loads to which it would be
subjected.” Id. at ¶ 21.
• Kimball acknowledged that “under construction loads, the as-designed
trusses were placing an excessive lateral load on the as-designed
header beams that supported them, thereby subjecting the header
beams to biaxial bending and overstressing them, as well as causing
the header-to-column connections to fail.” Id. at ¶ 23.
• Gongloff was forced to develop “six site-specific truss-erection plans to
try to keep up with Kimball’s ongoing but incompetent efforts to revise
the design.” Id. at ¶ 24.
• “On May 3, 2010, Carney[] issued a letter confirming that Kimball’s
roof design was grossly inadequate.” Id. at ¶ 25.
- 19 -
J-A13018-15
• On May 24, 2010, Kimball revised the connection details of the trusses
to the supporting columns. “This revision was intended to remedy the
deficiencies in [Kimball’s] original design.” Id. at ¶ 28.
• On or about July 15, 2010, Vulcraft warned that the inadequacy of the
roof system prohibited implementation of standard steel decking
procedures. Gongloff was required to undertake an alternate
cumbersome procedure that substantially increased its costs. Id. at ¶
31.
• Similarly, the inadequacy of the roof system necessitated an expensive
procedure for erection of the catwalk “that was not contemplated in
the bid documents.” Id. at ¶ 32.
• The catwalk itself was improperly designed by Kimball. “This error
caused further delay, and additional work, as the trusses had to be
reinforced in order to carry the catwalk.” Id. at ¶ 36.
Additionally, in detailing the basis of its negligent representation claim,
Gongloff alleged:
50. In providing the structural design of the Convocation Center
to these parties, [Kimball] either explicitly or implicitly
represented to those parties, including Gongloff, that the
structural design was adequate and that the structure could
safely sustain all required construction loads and in situ loads
and that normal construction methods could be employed to
erect the structure.
51. [Kimball’s] foregoing representation as to the adequacy of
its structural design was materially false information, inasmuch
as the structural design, including, specifically the design of the
long-span-joists and their support system, was not adequate to
- 20 -
J-A13018-15
safely sustain all required loads and normal construction
methods could not, in fact, be utilized to erect the structure.
Am. Compl. at ¶¶ 50, 51.
We conclude that the amended complaint’s allegations that Kimball’s
design documents constituted negligently-supplied false information have
been pled with the appropriate level of specificity to state a cause of action
for negligent misrepresentation under Section 552 of the Restatement
(Second) of Torts. While Kimball might prove later in the litigation that the
allegation that it provided false information concerning the integrity of its
roof design was unsubstantiated, it is not entitled to judgment in its favor at
this stage of the proceedings. Accordingly, the trial court’s order granting
judgment on the pleadings in favor of Kimball was premature and is
reversed.
Order reversed and remanded for consistent proceedings. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2015
- 21 -