CARON v. GRABER SUPPLY, LLC. et al
OPINION FILED. Signed by Judge Noel L. Hillman on 8/15/17. (js)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GRABER SUPPLY LLC,
doing business as
GRABER BUILDINGS, et al.,
ALLAN E. RICHARDSON
RICHARDSON EMPLOYMENT AND CIVIL RIGHTS LAW
142 EMERSON STREET
WOODBURY, NJ 08096
STEVEN J. RICHARDSON
LAW OFFICES OF STEVEN J. RICHARDSON, PC
40 NEWTON AVE
WOODBURY, NJ 08096
On behalf of Plaintiff
JOSEPH L. TURCHI
SALMON RICCHEZZA SINGER & TURCHI
123 EGG HARBOR ROAD - SUITE 406
SEWELL, NJ 08080
PHILIP D. PRIORE
MCCORMICK & PRIORE, PC
301 CARNEGIE CENTER
PRINCETON, NJ 08540
On behalf of Defendant Graber Supply, LLC
HILLMAN, District Judge
This matter concerns claims by Plaintiff regarding the
allegedly faulty construction of a pole barn on her residential
property in Monroeville, New Jersey.
Defendant, Graber Supply,
LLC, has filed a partial motion to dismiss, seeking the
dismissal of Plaintiff’s claims that it violated New Jersey’s
Home Improvement Practices Act, N.J.A.C. 13:45A–16.1 et seq.
For the reasons expressed below, Defendant’s motion will be
According to her complaint, in late 2014, Plaintiff, Gail
Caron, contracted with Defendant Graber Supply, LLC (“Graber”)
to construct a 100’ x 70’ building, commonly referred to as a
pole barn, on her residential property.
February 4, 2015.
Construction began on
On February 18, 2015, a member of Graber’s
crew hit and cracked a truss with a forklift.
that Graber made no offer to repair the damage in any manner and
the damaged truss will cause the roof to leak.
claims that Graber did not follow the engineering drawings,
which also compromised the integrity of the building.
result, Plaintiff claims that the pole barn did not pass
inspection by the municipal building inspector.
These alleged failures, among others regarding Graber’s
business practices, serve as the basis for her complaint, which
alleges that Graber violated New Jersey’s Consumer Fraud Act,
N.J.S.A. 56:8-1 et seq., through violations of the Home
Improvement Practices Act, N.J.A.C. 13:45A–16.1 et seq., and
committed common law fraud, negligence, and breach of contract. 1
Graber has moved to dismiss, or for summary judgment if the
Court considers documents outside the pleadings, Plaintiff’s
Home Improvement Practices Act claims.
Graber argues that the
pole barn cannot be considered a home improvement under the Act,
and therefore Plaintiff’s claims for violations of the Act fail
as a matter of law.
Plaintiff has opposed Graber’s motion,
arguing that Graber is a licensed home improvement contractor
who is covered by the Act, and that the pole barn constitutes an
improvement to her residential property that falls under the
Subject Matter Jurisdiction
Graber removed this action from New Jersey state court to
this Court pursuant to 28 U.S.C. § 1441.
This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332
because there is complete diversity of citizenship between the
Plaintiff has also asserted negligence claims against the
defendants who manufactured and delivered the roof trusses, as
well as the subcontractor engaged by Graber to construct the
pole barn. These three defendants have filed answers to
parties and the amount in controversy exceeds $75,000.
citizenship of the parties is as follows:
Plaintiff is a
citizen of New Jersey; Graber is a citizen of Pennsylvania;
Defendant Triple D Truss, LCC is a citizen of Pennsylvania;
Defendant L&S Truss, LLC is a citizen of Pennsylvania; and
Defendant Premier Structures, LLC is a citizen of Pennsylvania.
(See Amended Notice of Removal, Docket No. 35 at 2-3.)
Standard for Motion to Dismiss/Summary Judgment
When considering a motion to dismiss a complaint for
failure to state a claim upon which relief can be granted
pursuant to Federal Rule of Civil Procedure 12(b)(6), a court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the plaintiff.
Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005).
It is well
settled that a pleading is sufficient if it contains “a short
and plain statement of the claim showing that the pleader is
entitled to relief.”
Fed. R. Civ. P. 8(a)(2).
liberal federal pleading rules, it is not necessary to plead
evidence, and it is not necessary to plead all the facts that
serve as a basis for the claim.
F.2d 434, 446 (3d Cir. 1977).
Bogosian v. Gulf Oil Corp., 562
However, “[a]lthough the Federal
Rules of Civil Procedure do not require a claimant to set forth
an intricately detailed description of the asserted basis for
relief, they do require that the pleadings give defendant fair
notice of what the plaintiff’s claim is and the grounds upon
which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 149-50 n.3 (1984) (quotation and citation omitted).
Summary judgment is appropriate where the Court is
satisfied that the materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions, or
interrogatory answers, demonstrate that there is no genuine
issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.
Celotex Corp. v.
Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(a).
The purpose of the Home Improvement Practices Act “is to
implement the provisions of the Consumer Fraud Act, N.J.S.A.
56:8–1 et seq., by providing procedures for the regulation and
content of home improvement contracts and establishing standards
to facilitate enforcement of the requirements of the Act.”
The rules apply “to all home
improvement contractors as defined in N.J.A.C. 13:45A–17.2,”
which defines “home improvement contractors” as “a person
engaged in the business of making or selling home improvements.”
These home improvement contractors must register under the Home
Improvement Contractor Registration provision, N.J.A.C. 13:45A17.3 (“No person shall engage in the business of making or
selling home improvements in this State unless registered with
the Division in accordance with this subchapter.”).
The Home Improvement Practices Act lists numerous unlawful
acts and practices, and Plaintiff alleges several violations
against Graber, including failing to provide a written contract
signed by both parties prior to commencing work, not following
the engineering plans, and demanding payment prior to completion
of an approved inspection.
(Amend. Compl. ¶ 55.)
that it cannot be held liable under the Act for these alleged
violations because the sale and construction of the pole barn
does not constitute a home improvement.
Graber contends that
because the purpose of the pole barn was for Plaintiff to ride
horses indoors, that use is not residential, and it therefore
cannot be considered an improvement to Plaintiff’s home.
Plaintiff counters that the strict regulation of home
improvement contractors, the broad consumer protections afforded
by the Home Improvement Practices Act, and the plain language of
the Act all clearly demonstrate that Graber is a home
improvement contractor that undertook a home improvement project
at Plaintiff’s residence when it contracted with her to
construct a pole barn on her property.
The Court agrees with Plaintiff.
When the New Jersey
Legislature enacted the Contractor's Registration Act, N.J.S.A.
56:8–136 to –152, and the implementing regulations – the Home
Improvement Practices Act, N.J.A.C. 13:45A–16.1 to –17.14 - in
2004, the Legislature created a framework within the New Jersey
Consumer Fraud Act that regulates contractors who are engaged in
the business of making or selling home improvements because it
regarded the home improvement industry as being greatly in need
of regulation, and “the seriousness with which the Legislature
approached the perceived problems in that industry is reflected
both in the expansive language of the statute's definitional
reach and in the remedies that the statute authorizes.”
Inc. v. Heath, 966 A.2d 1008, 1012 (N.J. 2009).
made the statute applicable broadly and it used “sweeping
language in its definition of ‘home improvements’ so that the
requirements of the Act would reach an extensive variety of
persons and entities involved in the home improvement business.”
“The statute's identification of the CFA as its principal
civil enforcement mechanism . . . strongly suggests that the
Legislature intended to broadly empower consumers of these
services to seek relief for violations and to be made whole.”
Id. at 1013.
The Act defines “home improvement” as:
the remodeling, altering, painting, repairing, renovating,
restoring, moving, demolishing, or modernizing of
residential or noncommercial property or the making of
additions thereto, and includes, but is not limited to, the
construction, installation, replacement, improvement, or
repair of driveways, sidewalks, swimming pools, terraces,
patios, landscaping, fences, porches, windows, doors,
cabinets, kitchens, bathrooms, garages, basements and
basement waterproofing, fire protection devices, security
protection devices, central heating and air conditioning
equipment, water softeners, heaters, and purifiers, solar
heating or water systems, insulation installation, siding,
wall-to-wall carpeting or attached or inlaid floor
coverings, and other changes, repairs, or improvements made
in or on, attached to or forming a part of the residential
or noncommercial property, but does not include the
construction of a new residence. The term extends to the
conversion of existing commercial structures into
residential or noncommercial property and includes any of
the above activities performed under emergency conditions.
The Act defines “residential or non-commercial property”
a structure used, in whole or in substantial part, as a
home or place of residence by any natural person, whether
or not a single or multi-unit structure, and that part of
the lot or site on which it is situated and which is
devoted to the residential use of the structure, and
includes all appurtenant structures.
How a property is used is the overriding concern when
determining whether the Home Improvement Practices Act applies.
Luma Enterprises, L.L.C. v. Hunter Homes & Remodeling, L.L.C.,
2013 WL 3284130, at *4 (N.J. Super. Ct. App. Div. 2013).
substantial part of the property is used as a ‘home or place of
residence’ by the owner or any other natural person, it is
covered by the regulations.”
Id. (citations omitted).
For example, “a commercially owned, unoccupied, part
residential, part commercial property qualifies as a
residential, non-commercial property for purposes of the [CFA]
and its regulations.”
All Risk, Inc. v. Merion Realty, LLC,
2016 WL 7666667, at *9 (N.J. Super. Ct. App. Div. 2016) (quoting
Marascio v. Campanella, 689 A.2d 852, 856 (N.J. Super. Ct. App.
In contrast, a residence that was previously used
as a person’s home but was entirely converted into a business
does not fall under the Home Improvement Practices Act.
Luma Enterprises, L.L.C., 2013 WL 3284130, at *4 (explaining
that at the time the renovations began, the structure on the
Property was a “house,” but the appearance of the structure has
little to do with how the Property was “used”; “Luma never used
or intended to use the Property as a residence and contracted
with HHR to renovate it into a daycare center”; “at all times
during Luma's ownership, efforts have been directed toward
constructing a commercial, not a residential, property”; and
“[t]hat the Property could be used as a residence without
approval from the township or other appropriate authorities is
Graber argues that because the pole barn is not attached to
Plaintiff’s house, that improvement does not align with the
holding in Marascio, but rather is more like Luna.
language of the Act undermines this argument, however, because
the Act covers the construction of swimming pools as well as
other items that may or may not be physically unattached to a
residence such as sidewalks, fences, and garages.
structures of such kind would appear to fall under the statute’s
inclusion of “the making of additions....
construction .... on .... or forming a part of  residential or
The use of the
phrase “attached to or forming a part of” the property is clear
evidence the New Jersey Legislature did not intend to require
that the improvement be attached to the main residence.
Graber’s argument would exclude from the Act’s coverage the
construction of unattached improvements despite the Act’s
explicit inclusion of them.
The New Jersey courts have made it clear that the intended
use of the entire property is the key issue in determining
whether the Act applies.
Plaintiff’s complaint does not relate
Plaintiff’s intended use of the pole barn, but Plaintiff does
not dispute Graber’s representation that Plaintiff wished to
ride her horses indoors.
There also does not appear to be any
dispute that Plaintiff lives on the property in her private
Thus, just as the addition of a pool on a
residential property in which the property owner may swim is
considered a home improvement, a barn added to a residential
property in which the property owner may ride her horse is
considered a home improvement.
Moreover, under Marascio, even
if Plaintiff’s pole barn had a commercial use, the regulations
accommodate contracts for renovations to property with multiple
uses, so long as the property is one that is “used in whole or
substantial part” as a residence.
Marascio, 689 A.2d at 501
(citing N.J.A.C. 13:45A–16.1).
Graber is registered as a home improvement contractor
registered pursuant to N.J.A.C. 13:45A-17.3 with the license
(Amend. Compl. ¶ 13.)
There is no
question that Graber is a home improvement contractor subject to
the framework that regulates contractors.
There is also no
question that the Home Improvement Practices Act provides broad
protections to consumers who contract with home improvement
contractors such as Graber.
Graber’s construction of a pole
barn on Plaintiff’s residential property squarely falls within
the protections of the Act.
Consequently, Plaintiff’s claims
against Graber for its alleged violations of the Act are viable
and may proceed.
For the reasons expressed above, Graber’s motion to dismiss
Plaintiff’s claims under the Home Improvement Practices Act must
An appropriate Order will be entered.
August 15, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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