OPINION BY SHOGAN, J.:
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 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, 371 Pa.Super. 302, 538 A.2d 28, 31 (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 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,
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.
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. 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 limitations
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:
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 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:
Gongloff's Brief at 6 (emphasis in original).
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., 116 A.3d 87, 91 (Pa.Super.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 91 (citing
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 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, 556 Pa. 489, 729 A.2d 555, 561 (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 Restatement (Second) of Torts entitled, "Information Negligently Supplied for the Guidance of Others," and provides:
Restatement (Second) of Torts § 552(1).
In Bilt-Rite, the Pennsylvania Supreme Court adopted Section 552 and held that it applied in:
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, 604 Pa. 50, 985 A.2d 840 (2009), this Court explained the Supreme Court's justification for sanctioning potential Section 552 liability in disputes against architects and other design professionals:
Id. at 115. This Court then detailed the elements required to establish liability under Section 552(1) of the Restatement:
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
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.
"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.
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
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 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. 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 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
Additionally, in detailing the basis of its negligent representation claim, Gongloff alleged:
Am. Compl. at ¶¶ 50, 51.
We conclude that the amended complaint's allegations that Kimball's design documents constituted negligently-supplied
Order reversed and remanded for consistent proceedings. Jurisdiction relinquished.