J-S82012-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DIEGO CORREA, AN INDIVIDUAL, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellant

v.

CMC GENERAL CONTRACTING, LLC, A 

PENNSYLVANIA CORPORATION, AND 

RICHARD CLARK, AN INDIVIDUAL,

Appellees No. 85 WDA 2017

Appeal from the Order Entered December 12, 2016

In the Court of Common Pleas of Allegheny County

Civil Division at No(s): AR 15-001113

BEFORE: BENDER, P.J.E., STEVENS, P.J.E.*, and STRASSBURGER, J.**

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 14, 2018

Appellant, Diego Correa, an individual, appeals from the trial court’s 

order granting summary judgment in favor of Appellees, CMC General 

Contracting, LLC (referred to herein as CMC), a Pennsylvania Corporation, and 

Richard Clark, an individual. We affirm in part, reverse in part, and remand 

for further proceedings.

The trial court summarized the factual background and procedural 

history of this case as follows:

On December 12, 2016, this [c]ourt dismissed [Mr. Correa’s] 

lawsuit upon [Appellees’] Motion for Summary Judgment, after 

____________________________________________

* Former Justice specially assigned to the Superior Court.

** Retired Senior Judge assigned to the Superior Court.
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argument and considering [b]riefs of both parties. [Mr. Correa] 

appeals from the dismissal. 

[Mr. Correa] filed an Arbitration Complaint which sought to hold 

[Appellees] responsible for allegedly installing a defective roof on 

his residence, which caused leaks and water damage.

Mr. Correa found evidence of water leaks on his bedroom ceiling 

in 2011. He never discovered the source of the leak, but 

contracted with [Appellees] in March of 2011 to replace the entire 

roof. The roof was replaced in April of 2011.

[Mr. Correa] complained in July of 2012 that the roof was leaking 

again. [Appellees] made efforts to fix the leaks, but did not find 

the source. On or about August of 2015, approximately three (3) 

years later, [Mr. Correa] engaged Home Depot to replace the roof 

that [Appellees] installed in 2011, which Home Depot completed. 

[Mr. Correa] claims that the roof no longer leaks.

In 2015, [Mr. Correa] filed a Complaint in Arbitration against 

[Appellees], consisting of six (6) counts: breach of contract...,[1]

negligence..., [U]nfair [T]rade [P]ractices and Consumer 

Protection Law[ (UTPCPL), 73 P.S. § 201-1 et seq,] breach of 

warranty and implied breach of warranty.

An Arbitration Hearing was held November 12, 2015, wherein [Mr. 

Correa] produced no expert witness that [Appellees’] work caused 

the roof to leak and subsequent water damage. Rather, [Mr. 

Correa] offered his own admittedly lay opinion and speculated that 

the spacing of the shingles at 6”, instead of 5”, and the lack of an 

ice/water dam was the sole cause of the leak. [Mr. Correa] admits 

that he did not engage [Appellees] to find the leak, merely to 

replace the entire roof. He conceded that he himself has no 

expertise in roofing or the matter of the cause of the leak or that 

it was something [Appellees] did in replacing the roof which 

caused the leak.

Q: Mr. Correa – and I am not trying to sound offensive or 

anything. Are you a roofer?

A: No, I am not.

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1 Mr. Correa filed separate breach of contract counts against Appellee CMC 

and Appellee Clark.
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Q: So, you don’t consider yourself an expert on any roofing 

or shingles or anything like that?

A: Well, I’ve learned a lot since this happened, butQ: You don’t consider yourself an expert?

A: I am not an experienced roofer or an expert, no.

Despite the lack of any expert testimony to support [Mr. Correa’s] 

speculation, the panel awarded $35,000.00 to him. During the 

hearing, [Appellees] learned the identity of the Home Depot 

installation specialist, Mike Boyle,

[2] who replaced the roof in 

2015.

Mike Boyle was deposed. When he arrived at [Mr. Correa’s] home 

to examine the roof, the entire roof which [Appellees] installed 

had already been torn off and placed in the dumpster. The only 

portion remaining was the plywood layer. Because Home Depot’s 

policy was to remove all water damaged plywood and replace it, 

Mike Boyle thoroughly inspected it. He testified that if the roof 

had in fact been leaking, the plywood would have evidence of any 

water damage.

A: If the roof has had a leak, it’s very evident. The material 

is real “punky,” as we say. If it’s plywood, a lot of time it’s 

delaminating other black spots from the water, sitting there 

for a lengthy period of time. There was no evidence [of]

any issues with the roof at the time. We didn’t replace any 

material on the existing roof. 

[***]

A: From what I saw, there was no evidence that the roof 

was leaking.

Q: And you’re basing that solely by looking at the plywood?

A: Yes.

Q: So, in all instances were [sic] a roof is leaking, the 

plywood has to show some signs of it?

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2

In their briefs, the parties refer to the installation specialist as Mike Boyd, 

not Mike Boyle. See Mr. Correa’s Brief at 15; Appellees’ Brief at 9 n.4. Our 

review of the record indicates that Boyle is the correct last name. 
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A: In most cases, yes. There’s usually water marks in the 

plywood, depending on the plywood, it could be 

delaminating. Depending on how long it has leaked, it could 

be rotted. There’s usually ways we can usually see.

Q: Did you see the entire plywood of the roof?

A: Yeah, we walked the whole roof.

Q: So, you saw it entirely exposed?

A: Yes.

Based upon his experience and a visual inspection of the entire 

plywood roof, Mike Boyle was unable to find any roof leakage from 

the roof installed by [Appellees].

Trial Court Opinion (TCO), 3/8/2017, at 2-4 (internal citations to record 

omitted). 

As mentioned supra, the trial court granted summary judgment in favor 

of Appellees on all of Mr. Correa’s claims. Thereafter, Mr. Correa filed a timely 

notice of appeal, and a timely, court-ordered Pa.R.A.P. 1925(b) concise 

statement of errors complained of on appeal. The trial court subsequently 

issued a Rule 1925(a) opinion. 

Presently, Mr. Correa raises the following issues for our review:

1. Whether the facts, including but not limited to [Appellees’] 

implicit affirmation that the cause of Mr. Correa’s damages 

was a leak in the roof, the testimony of Mr. Correa[,] and 

the fact that a subsequent roof replacement corrected the 

leakage[,] establish[] a genuine issue of material fact which 

must be resolved by a fact-finder?

2. Whether the facts presented warrant denial of [Appellees’]

Motion for Summary Judgment under a Res Ipsa Loquitur

theory?

3. Whether the failure to raise, mention and/or argue a count 

in an argument for summary judgment precludes dismissal 

of that [c]ount and/or whether the available evidence 
J-S82012-17

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establishes a genuine issue of material fact so as to require 

consideration by a fact-finder? 

Mr. Correa’s Brief at 3. 

Initially, we set forth our standard of review:

[S]ummary judgment is appropriate only in those cases where the 

record clearly demonstrates that there is no genuine issue of 

material fact and that the moving party is entitled to judgment as 

a matter of law. When considering a motion for summary 

judgment, the trial court must take all facts of record and 

reasonable inferences therefrom in a light most favorable to the 

non-moving party. In so doing, the trial court must resolve all 

doubts as to the existence of a genuine issue of material fact 

against the moving party, and, thus, may only grant summary 

judgment where the right to such judgment is clear and free from 

all doubt. On appellate review, then, an appellate court may 

reverse a grant of summary judgment if there has been an error 

of law or an abuse of discretion. But the issue as to whether there 

are no genuine issues as to any material fact presents a question 

of law, and therefore, on that question our standard of review is 

de novo. This means we need not defer to the determinations 

made by the lower tribunals. To the extent that this Court must 

resolve a question of law, we shall review the grant of summary 

judgment in the context of the entire record.

Kennedy v. Robert Morris University, 133 A.3d 38, 41 (Pa. Super. 2016)

(citation omitted). 

In his first issue, Mr. Correa argues that “the facts, including but not 

limited to [Appellees’] implicit affirmation that the cause of Mr. Correa’s 

damages was a leak in the roof, the testimony of Mr. Correa[,] and the fact 

that a subsequent roof replacement corrected the leakage[,] establish[] a 

genuine issue of material fact which must be resolved by a fact-finder[.]” See 

Mr. Correa’s Brief at 3. Relatedly, he claims that no expert is needed to 

establish that Appellees’ work caused his damages, as “[o]ne need not be a 
J-S82012-17

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physicist to understand that rainwater does not fall upon the earth and rise 

up to enter through the ceilings of Mr. Correa’s second floor rooms.” Id. at 

13. We address these contentions in turn.

To begin, with regard to his breach of contract and negligence claims, 

Mr. Correa argues that he has presented sufficient evidence to establish a 

genuine issue of material fact that must be resolved by a fact-finder. See id.

3

 

We reiterate that Mr. Correa alleges, inter alia, that Appellees breached the 

contract to replace his roof by failing to act with reasonable care and 

competence, and were negligent in failing to perform work which prevented 

water from entering into the premises.

4

 See Complaint, 3/9/2015, at ¶¶ 15, 

25. He advances that a genuine issue of material fact exists for those claims 

because: (1) Appellees “established by its actions its belief as to the cause of 

the leaks and the fact that it would repair said leaks by replacing the roof[,]” 

id. at 15;5 (2) Mr. Correa testified at arbitration that — though there was 

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3 As discussed further infra, Mr. Correa argues that Appellees did not include 

his breach of warranty and UTPCPL claims in their motion for summary 

judgment. See Mr. Correa’s Brief at 19-20. 

4 Appellees point out that they were “hired by Mr. Correa solely to replace the 

roof, not to investigate or locate the cause of the existing water leaks.” 

Appellees’ Brief at 4 (citation omitted). See also TCO at 3 (“[Mr. Correa] 

admits that he did not engage [Appellees] to find the leak, merely to replace 

the entire roof.”). 

5 To elaborate, Mr. Correa claims that he “contracted with [Appellees] to 

replace a roof in order to correct a problem with a leaking roof. Implicit in the 

acceptance of this contract is the acceptance by [Appellees] that the problem 

addressed, leakage, was the result of a bad roof.” Mr. Correa’s Brief at 13. 
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water damage before Appellees worked on the roof — the water damage 

became worse after Appellees’ roofing work, see id. at 9-10, 15;6 and (3) a

subsequent repair of the roof by another contractor did stop the leakage, id. 

at 15. Yet, none of this evidence establishes that — or explains how —

Appellees’ work on the roof caused the leaking, particularly given that Mr. 

Correa had struggled with leaks before Appellees’ work commenced. Further, 

the trial court acknowledges that, although Mr. Correa suggests that the leak 

occurred because Appellees allegedly failed to install an ice/water dam and 

improperly spaced the shingles, Mr. Correa “did not preserve the roof for 

examination prior to filing this lawsuit, so potential witnesses beyond [Mr.

Correa] himself had no means to find fault with the roof or associate its 

condition in any way with [Mr. Correa’s] description of a potential roof leak.” 

TCO at 5; see also Mr. Correa’s Brief at 8.

Next, Mr. Correa contests whether he needed an expert to prove 

causation. He states, “[e]xpert testimony is required only where the subject 

matter is beyond the scope of understanding of a jury. Nothing about the 

leaky roof is so complex as to require an expert.” Id. at 6. He cites to Storm 

v. Golden, 538 A.2d 61 (Pa. Super. 1988), for the proposition that “[e]xpert 

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6 But see Appellees’ Brief at 7 (“This argument assumes ... that the source of 

the water damage was water leaking from a roof and, in particular, the roof 

[Appellees] installed. The argument fails to take into account the other 

possible causes or sources for water leaking into one’s residence, including 

gaps in [the] exterior of the residence, fascia, soffit vents, deteriorated bricks 

or mortar, faulty plumbing or ventilation systems, and the real possibility that 

the pre-existing water damage simply worsened over time independent from 

any action of [Appellees].”). 
J-S82012-17

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testimony becomes necessary when the subject matter of the inquiry is one 

involving special skills and training not common to the ordinary lay person.” 

Id. at 64 (citations omitted); see also Mr. Correa’s Brief at 12. Moreover, he 

points out that expert testimony as to causation is not required “where there 

is an obvious causal relationship between the injury complained of and the 

alleged negligent act.” Mr. Correa’s Brief at 11 (quoting Matthews v. Clarion 

Hospital, 742 A.2d 1111, 1112 (Pa. Super. 1999) (emphasis in original; 

citation and internal quotation marks omitted)). 

We disagree with Mr. Correa that expert testimony was unnecessary 

here. As Appellees aptly explain:

Mr. Correa identifies two potential areas where [Appellees] may 

have deviated from the installation contract: 1) installation of the 

ice/water dam and 2) installing the shingles with a 6-inch instead 

of a 5-inch overlap. However, the record is devoid of any 

evidence, including the opinion of an expert witness, supporting 

his position that these deviations, if true, caused the water 

damage alleged in this case.

The installation of a residential roof and the investigation of the 

source of water damages requires some technical expertise and 

construction experience. [Mr. Correa] is essentially arguing that 

if the inside of a home is damaged, it must necessarily be from 

water leaking from the roof. While experience teaches that water 

entering the home will cause damage, the issue raised by [Mr. 

Correa’s] claims is whether his particular damage is caused by 

water entering from a leaky roof. And, if so, whether the leak was 

from the existing roof or the roof installed by [Appellees]. 

Whether the installation of ice/water protection or the spacing of 

shingles caused [Mr. Correa’s] property damage[] requires 

knowledge and experience beyond that possessed by an average 

person. This is especially true when [Mr. Correa’s] property was 

already damaged by water. 
J-S82012-17

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Appellees’ Brief at 4-5 (footnote omitted).

7

 

We concur with Appellees’ analysis, and do not find the causal 

relationship between Appellees’ work and Mr. Correa’s damages to be so 

obvious as to eliminate the need for expert testimony. Additionally, as 

mentioned above, Mr. Correa did not preserve the roof installed by Appellees

for examination prior to filing this lawsuit. See TCO at 5. Because Mr. Correa 

has proffered no evidence to establish that Appellees’ work caused the water 

damage he experienced, the trial court did not err in granting summary 

judgment in favor of Appellees on this basis. 

In his second issue, Mr. Correa argues that, “[w]hen considered 

pursuant to a theory of [r]es [i]psa [l]oquitur, there exists sufficient evidence 

of causation so as to survive a [m]otion for [s]ummary [j]udgment.” Mr. 

Correa’s Brief at 17. Mr. Correa insists that “ongoing leakage does not 

ordinarily occur after a contractor has been hired to repair the condition in the 

absence of negligence.” Id. at 18-19. He cites to Quinby v. Plumsteadville 

Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), which explains:

Res ipsa loquitur allows juries to infer negligence from the 

circumstances surrounding the injury. Res ipsa loquitur, meaning 

literally “the thing speaks for itself,” is “a shorthand expression 

for circumstantial proof of negligence—a rule of evidence.” 

Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94, 99 (1974). 

It is a rule that provides that a plaintiff may satisfy his burden of 

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7 See also TCO at 5 (“In order to make out a prima facie case, it was [Mr. 

Correa’s] burden to prove that [Appellees] caused a leak and water damage 

by installing shingles at 6 [inch] overlap and not installing an[] ice/water dam. 

... [Mr. Correa] not only did not offer expert evidence to prove [Appellees’] 

alleged work caused a leak, [Mr. Correa] offers his own uneducated opinion.”). 
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producing evidence of a defendant’s negligence by proving that he 

has been injured by a casualty of a sort that normally would not 

have occurred in the absence of the defendant’s negligence. 

WILLIAM L. PROSSER, LAW OF TORTS §§ 39, 40 (4th ed. 1971) 

(calling res ipsa loquitur a “simple matter of circumstantial 

evidence”). As noted, the Restatement (Second) of Torts § 328D 

formulates the evidentiary theory of res ipsa loquitur as follows:

(1) It may be inferred that harm suffered by the plaintiff is 

caused by negligence of the defendant when

(a) the event is of a kind which ordinarily does not occur 

in the absence of negligence;

(b) other responsible causes, including the conduct of the 

plaintiff and third persons, are sufficiently eliminated by 

the evidence; and

(c) the indicated negligence is within the scope of the 

defendant’s duty to the plaintiff.

(2) It is the function of the court to determine whether the 

inference may reasonably be drawn by the jury, or whether 

it must necessarily be drawn.

(3) It is the function of the jury to determine whether the 

inference is to be drawn in any case where different 

conclusions may reasonably be reached.

Rest. (Second) Torts § 328D. See also Gilbert, 457 Pa. 602, 327 

A.2d 94 (adopting res ipsa loquitur as defined in the Restatement 

(Second) of Torts § 328D). 

Quinby, 907 A.2d at 1071 (footnotes omitted); see also Mr. Correa’s Brief 

at 17-18. 

The trial court rejected Mr. Correa’s res ipsa loquitur theory, pointing to 

the Restatement (Second) Torts § 328D(1)(b), supra (“It may be inferred 

that harm suffered by the plaintiff is caused by negligence of the defendant 

when ... other responsible causes, including the conduct of the plaintiff and 

third persons, are sufficiently eliminated by the evidence[.]”). The trial court 
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observed that Mr. Correa did not present evidence to sufficiently eliminate 

other responsible causes, as Mr. Correa’s argument “fails to acknowledge that 

the pre-existing leakage[,] which was not remedied by the new roof, was 

possibly the result of some cause or condition of another area of the home 

which remains unknown....” TCO at 5. In response, Mr. Correa advances that 

“the plaintiff is not required to exclude all other possible conclusions beyond 

a reasonable doubt, and it is enough that he makes out a case from which the 

jury may reasonably conclude that the negligence was, more probably than 

not, that of the defendant.” Mr. Correa’s Brief at 19 (quoting Restatement 

(Second) of Torts § 328D (1965) (Comment f)). 

Again, we disagree with Mr. Correa’s argument. As Appellees 

persuasively set forth:

Prior to contracting with [Appellees] for the replacement roof, Mr. 

Correa suffered water damage to the inside of his residence. He 

did not hire anyone to repair that damage, or investigate the 

cause of that damage. He simply assumed his original roof was 

leaking water and needed to be replaced. The record is devoid of 

any evidence eliminating other possible causes for the water 

leaking into Mr. Correa’s residence. Although Mr. Correa correctly 

contends that he isn’t required to exclude all other possible 

causes, he fails to exclude even one (1) other possible cause of 

the water damage. Section 328(D)(1)(b) requires that other 

causes be “sufficiently” eliminated from consideration by the 

evidence, thus placing a burden upon [Mr. Correa] to diligently 

investigate those other causes before claiming eligibility for the 

causal inference inherent in the theory of rea ipsa loquitur. [Mr. 

Correa] failed to diligently investigate any other responsible 

causes, including any potential failure to mitigate or repair the 

pre-existing water damage.

Appellees’ Brief at 11-12 (internal citations omitted). 
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Mr. Correa has not sufficiently eliminated other possible causes for the 

water damage, and we cannot conclude that Appellees’ roofing more probably 

than not caused the water damage to Mr. Correa’s home. Accordingly, we 

determine that Mr. Correa cannot invoke the doctrine of res ipsa loquitur here. 

In his third issue, Mr. Correa states that “[t]he [t]rial [c]ourt erred when 

it failed to limit the award of [s]ummary [j]udgment to those charges raised 

in the [m]otion filed by [Appellees].” Mr. Correa’s Brief at 19. Mr. Correa 

claims that, although Appellees’ only mention of Mr. Correa’s claims relating 

to breach of warranty and UTPCPL “was to recognize their existence in the 

[c]omplaint[,]” the trial court nevertheless granted summary judgment in 

favor of Appellees on those claims. Id. at 20. Further, in addition to 

exceeding the scope of Appellees’ summary judgment motion, Mr. Correa 

claims that the evidence establishes material issues of fact which render 

summary judgment on his breach of warranty and UTPCPL claims improper. 

See id. 

We reverse the trial court’s entry of summary judgment in favor of 

Appellees on Mr. Correa’s breach of warranty and UTPCPL claims, and remand 

for further proceedings. Appellees’ motion for summary judgment appears to 

us to challenge only Mr. Correa’s negligence and breach of contract claims, 

while barely even acknowledging his breach of warranty and UTPCPL claims. 

We are unsure whether Appellees intended to exclude discussion of those 

claims, mistakenly overlooked them, or aimed to include them but did not do 

so clearly enough. In any event, Appellees do not present any argument in 
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their brief to convince us that their motion for summary judgment indeed 

encompassed such claims, and the trial court’s Rule 1925(a) opinion does not 

address this issue despite Mr. Correa’s raising it in his Rule 1925(b) statement. 

While we recognize that it will be difficult for Mr. Correa to succeed on his 

breach of warranty and UTPCPL claims given the lack of causal connection 

between Appellees’ work and the water damage, we note that Mr. Correa has 

raised a claim under the Home Improvement Consumer Protection Act, 73 P.S. 

§ 517.1 et seq., which he says amounts to a violation of the UTPCPL.8 See 

Mr. Correa’s Brief at 19-21. Because the parties have not argued issues 

specifically pertaining to breach of warranty and the UTPCPL before the trial 

court, and the trial court has not appeared to have considered those claims, 

we remand this matter so that the trial court may address them in the first 

instance. See Branton v. Nicholas Meat, LLC, 159 A.3d 540, 561-62 n.21 

(Pa. Super. 2017) (remanding case so that the trial court could rule on the 

issue in the first instance). 

Order affirmed in part and reversed in part. Case remanded for further 

proceedings consistent with this memorandum. Jurisdiction relinquished. 

____________________________________________

8 Specifically, Mr. Correa claims that Appellees’ contract did not contain, inter 

alia, required information regarding insurance coverage under 73 P.S. § 

517.7(a)(11). See Mr. Correa’s Brief at 20-21. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/14/2018