Saturday, May 18, 2013

Mr. Rooter of Pittsburgh: Fraudulent Misrepresentation, Breech of Contract, and Bait & Switch Tactics/Deceptive Advertising...

*I am NOT a lawyer and this is information is NOT intended to serve as legal advice.  If you believe that you have a legal claim or need legal advice, then contact a lawyer who would be appropriately qualified to discuss your situation.*


This post is intended to describe the information that I used to arrive at my following opinion/conclusion: Mr. Rooter of Pittsburgh engaged in fraudulent misrepresentation, breech of contract, and bait and switch tactics during dates of service with my Mother.


Fraudulent Misrepresentation

In the state of PA, the statute of limitations on Fraud is two years.  It has been almost 17 months.

According to my research, fraud is difficult to prove; however, based on the statements and actions made by Mr. Rooter of Pittsburgh that we were witness to, I am certain that we were victims of intentional fraudulent misrepresentation.

The following link is a good resource to understand how the law defines fraud in PA:  http://www.stradley.com/library/files/prk-fraud.pdf.


Traditional Fraud

Under Pennsylvania law the following elements must be pled and proven in an
page9image5912 page9image6072 page9image6232
action to establish a claim for common law fraud: 

1) a misrepresentation,
2) a fraudulent utterance thereof,
3) an intention by the maker that the recipient will thereby be induced to act, 

4) justifiable reliance by the recipient upon the misrepresentation, and 
5) damages to the recipient as the proximate result. 


In order to recover for fraud in PA, one has to prove each and every one of the points below http://www.injurylawsourcepa.com/2011/09/pennsylvania-civil-fraud-law.html :

1) that the defendant made a misrepresentation to the plaintiff
2) that the misrepresentation made by the defendant to the plaintiff was fraudulent
3) that the misrepresentation was of a material fact
4) that the defendant intended that the plaintiff rely on the defendant's misrepresentation
5) that the plaintiff relied on the defendant's misrepresentation, and
6) that the plaintiff's reliance on the defendant's misrepresentation was a factual cause of harm suffered by the plaintiff.


Based on our experience, this is how I believe Mr. Rooter of Pittsburgh's actions align with fraud as defined in the state of PA http://www.injurylawsourcepa.com/2011/09/pennsylvania-civil-fraud-law.html:


1) that the defendant made a misrepresentation to the plaintiff

"A misrepresentation is any action, by one's words or conduct, that differs from the true facts of a given situation."

Invoice #105738:  Mr. Rooter of Pittsburgh employees made misrepresentations during the creation of Invoice #105738 on December 25,2011.  First of all, my Mother was not even physically present and sent me as her representative.  I was told, by Mr. Rooter of Pittsburgh employees, that a complete sewer line replacement was necessary for $10,000.  So, what would any reasonable person conclude from that statement?  Stating that a complete sewer line replacement is necessary would lead a reasonable person to conclude that the scope of work would involved replacing the entire sewer line from the house to the main sewer line - a COMPLETE sewer line replacement.  The $10,000 price tag warranted informing my Mother of the Mr. Rooter employees' claimed findings. A detail I that I forgot about, but remember now after my Mother reminded me, is that I was not the only person providing information to my Mother because I DID hand my cell phone to a Mr. Rooter of Pittsburgh employee during the phone call with her in order for him to explain the situation to her because she was asking questions and I was probably was tired of parroting the Q & A session.  The Mr. Rooter of Pittsburgh employee told my Mother the same thing that he told me, which was that a complete sewer line replacement was necessary for $10,000.  So, my Mother gave me permission to enter into contract on her behalf under the impression that the work performed was supposed to be a COMPLETE sewer line replacement and unaware that Mr. Rooter of Pittsburgh required her to sign her rights away before they would do the work.  After I had signed all the forms, Mr. Rooter of Pittsburgh employees informed me that the work will stop at the house trap.  I thought the house trap was near the main sewer line because its name would make that kind of sense to me.  So, apparently not understanding the work Mr. Rooter of Pittsburgh employees stated they would do, even after the contract was signed, I asked to be shown the video and get a copy of the video showing the condition of the sewer line and the point where work was supposed to stop at, with continued promises from the Mr. Rooter of Pittsburgh employees that the work in this invoice would solve our problem.  At this time, I recall being under the impression that the scope of the work entailed all visible and invisible drain lines in the basement which apparently only included the sewer line underneath the basement floor to the house-trap.  So, even though it was obvious my Mother had no idea those emergency forms waving her rights existed and I was confused about the scope of work that was to be performed at my Mother's home,  they continued to proceed and wouldn't allow the homeowner to pause or release from this contract upon learning that we should have had our situation evaluated by our local municipal authority.

Invoice #105742:  Mr. Rooter of Pittsburgh employees made misrepresentations during the creation of Invoice #105742 on December 27, 2011.  While Mr. Rooter of Pittsburgh had our basement floor tore up and was planning to install new pipes underneath the concrete floor in the basement, we thought it was the perfect time to ask how much more it would cost to add a toilet because we knew it would be cheaper and easier now rather than later; however, I was told that we had to wait until the same Mr. Rooter of Pittsburgh employee, who drew up Invoice #105738, came to supposedly "camera outside sewer" as written on Invoice #105738.  Again, "camera outside sewer" on  #105738 does not specify how much of the sewer line was supposed to be investigated; however, a reasonable person would conclude that the invoice implied that they would camera the outside sewer until they intersected with the main sewer line.  Instead, the Mr. Rooter of Pittsburgh employee stopped his inspection promptly at the clog located in the sewer line which never reached the main sewer line which left the last 6 - 1 1/2 feet of the sewer line uninspected.  Well, to make a long story short, the Mr. Rooter of Pittsburgh employee told my Mother and I that what was going to happen was a pipe bursting only that is not what is written on Invoice #105742.  Invoice #105742 states that the outside sewer was supposed to be replaced up to within 2 feet of the main sewer line; however, an independent camera inspection proves that they did not complete work up to the point where they swear up and down they did.  My Mother purchased the "Advantage Plan" or "Valued Customer Protection Plan" or whatever they call it...here the employee references it as "cpp"...in order to take advantage of preferential pricing and other promises made within the plan.  On Invoice #105742, it claims that my Mother received the "cpp pricing"; however, no proof that she actually received it is on the invoice anywhere.  The toilet was supposed to be provided and installed at no charge according to verbal and written promises made by the Mr. Rooter of Pittsburgh employee; yet, my Mother and I both recall my asking the Mr. Rooter of Employee why he was not including the "cpp" price in one of the two jobs he had pointed to for $5200 and he told us it was because he was giving us a free toilet and that his boss would be mad.



2) that the misrepresentation made by the defendant to the plaintiff was fraudulent

"A misrepresentation is fraudulent when the person making the misrepresentation (a) knows that it is untrue, or (b) does not believe it is true or is indifferent as to whether it is true, or (c) by reason of special circumstance has a duty to know whether it is true.  Only one of these is necessary to prove that the misrepresentation was fraudulent."

Invoice #105738:  The Mr. Rooter employees knew that their verbal statements and what they planned to write down on Invoice #105738 were going to be different; thus they knew that the misrepresentations they were making were untrue and/or they were indifferent as to whether their misrepresentations were true.  Mr. Rooter of Pittsburgh employees failed to correct our repeated verbal statements describing our understanding of the verbal promises made by the employee, which was that the scope of the work was supposed to be a COMPLETE SEWER LINE REPLACEMENT for $10,000, until AFTER the invoice had been created and signed which was performed AFTER verbal permission for work was given by my Mother over the phone.

Invoice #105742:  Mr. Rooter of Pittsburgh employees made fraudulent misrepresentations during the creation of Invoice #105742.  The Mr. Rooter of Pittsburgh employee knew, for a fact, that he did not provide what what my Mother was entitled to under the "Advantage Plan" or the "Valued Customer Service Protection Plan" because "his boss would be mad."  



3) that the misrepresentation was of a material fact

"A fact is material if it is something that would be important to a reasonable person in making a decision."

Invoice #105738:  The misrepresentation was of a material fact.  How much of the sewer line to be replaced in relation to the price would have heavily influenced my Mother's decision one way or the other.  Verbally, the Mr. Rooter of Pittsburgh employee stated that a complete sewer line replacement was necessary for $10,000 and my Mother gave permission for what she expected would be a complete sewer line replacement for $10,000; however, it was not until after obtaining my Mother's permission to enter into contract that the contract was created in a barely legible manner where the Mr. Rooter of Pittsburgh employee changed the terms of what my Mother verbally agreed to over the phone without informing either my Mother or myself of the written changes, regardless of the fact that I was sitting there constantly asking him if he wrote down the verbal contractual promises that he made where he assured me that he was.  

Invoice #105742:  The misrepresentation was of a material fact.  The Mr. Rooter of Pittsburgh employee misrepresented his intentions in order to deceive my Mother and I into believing that the employees of Mr. Rooter of Pittsburgh cared about us, our home, and about rectifying our situation.  The verbal and written misrepresentation, that they were offering something of value to us in a complimentary manner, was important to a reasonable person in making the decision to proceed with #105742 as the "no charge" toilet was presented as a generous gesture even though it was subsequently charged at the rate of $400.  The misrepresentation about the product/service that was to be performed was critical as well.  It appears as though my mother was told she was paying for a pipe bursting, but was charged for a replacement, and actually received an insert.    

4) that the defendant intended that the plaintiff rely on the defendant's misrepresentation

Invoice #105738:  The Mr. Rooter of Pittsburgh employees intended for myself and my Mother to rely on their misrepresentations for financial gain...for commission.  The Mr. Rooter of Pittsburgh employees knowingly allowed my Mother and myself to believe that the scope of the work included a complete sewer line replacement from our house to the main sewer line until after the contract was created and signed.  After getting approval from my Mother, the contract was created and signed.  After the contract had been created and signed, it was then that the Mr. Rooter of Pittsburgh employees informed me that it wasn't the whole sewer line.  In addition to being shocked and sick about signing for work my Mother hadn't agreed to, the Mr. Rooter of Pittsburgh employees had presented me with "emergency forms" at signing that I had to sign or they wouldn't do the work.  After reluctantly signing the forms, I asked the Mr. Rooter of Pittsburgh employee to show me where the work was supposed to come to according to the alternate contract they created.

Invoice #105742:  The Mr. Rooter of Pittsburgh employee intended for myself and my Mother to rely on their misrepresentation for financial gain...for commission.  The "no charge," but I really charged you $400 toilet is a prime example of the Mr. Rooter of Pittsburgh employee providing intentional fraudulent misrepresentations for the purpose of hoping to convince us to enter into another subsequent contract due to the perceived "generosity" surrounding providing the "no charge" toilet.


In summary, the Mr. Rooter of Pittsburgh employees get paid commission; hence, there is a high level of motivation present for the Mr. Rooter of Pittsburgh employees to engage in making multiple and intentional misrepresentations in order to convince consumers to enter into contracts and sign emergency forms which are intended to give up rights provided by the Federal Trade Commission (FTC).



5) that the plaintiff relied on the defendant's misrepresentation, and 

"The defendant would not have acted or would not have failed to act as he or she did unless he or she considered the misrepresentation to be true."

Invoice #105738: How much of the sewer line to be replaced in relation to the price would have influenced my Mother's decision to act.  My Mother would never have entered into the contract if she would have known that it was only a small portion of her sewer line that was being replaced for $10,000.  My Mother would also have not entered the contracted based on the recommendation of salesman, with Mr. Rooter of Pittsburgh falsely advertising that they were licensed plumbers.  According to the Mr. Rooter of Pittsburgh employee's verbal statements at the time Invoice #105738 was created, the work was described as a complete sewer line replacement, but then their written statements evolved into only part of the sewer being replaced up to the house trap which was a complete sewer line replacement of a restricted distance of 30 feet or less for $10,000.  Based on advertising at http://pittsburgh.mrrooter.com, the following claim is advertised:  "At Mr. Rooter Plumbing, our fully licensed and insured Pittsburgh plumbers will arrive at your location on time and ready to work." So, since it is advertised that fully licensed and insured Pittsburgh plumbers arrived at our home, it is reasonable to conclude that we relied on Mr. Rooter of Pittsburgh's misrepresentations as these misrepresentations were made by individuals who we thought were licensed professional plumbers, rather than merely salesmen.

Invoice #105742: The influence to act and proceed with Invoice #105742 is actually heavily associated with the previous invoice - Invoice #105738.  While the "no charge" toilet was a factor in my Mother entering into this subsequent contract, a larger factor was that Mr. Rooter of Pittsburgh employees had already conned us into entering a contract and then changed the terms of the contract on us.  At the time of this invoice, they had our home destroyed and we were afraid what they would do if we said, "No." We were afraid of loosing all that money and still having the problem, so we hoped they would resolve the issue of sewage backing up in the basement and they never did.



6) that the plaintiff's reliance on the defendant's misrepresentation was a factual cause of harm suffered by the plaintiff.

The reliance on Mr. Rooter of Pittsburgh employees' misrepresentations was a factual cause of harm suffered by my Mother due to the fact that she did not receive the products and services for the cost that she verbally agreed to and gave me permission to sign for on Invoice #105738, which was $10,000.  She and I believed that a complete sewer line replacement for $10,000, which was supposed to include the sewer line from the inside of the home to the main sewer line, would have solve the issue of sewage backing up into our basement.  Additionally, concerning Invoice #105742, there was a solid contract both verbal and written that entitled her to a "no charge" toilet, but she was charged for the toilet with this misrepresentation being the extra incentive that enticed her to enter into this subsequent contract.  The misrepresentations made by the Mr. Rooter of Pittsburgh employees involved monetary loss and unnecessary destruction to the property in order to remove and replace, what we now believe, was a perfectly intact sewer line clogged with solidified grease in three areas of the lateral sewer line that could have been cleaned out with the drain cleaning machine and attachment the Mr. Rooter of Pittsburgh employee had on the evening of December 24, 2011 and running water for about an hour according to the statement made to us recently by a drain cleaning specialist who would have had no financial incentive to up-sell products/services like Mr. Rooter of Pittsburgh does.

The worst part of the string of misrepresentations is that a false sense of security was instilled in both of us and after work was claimed to be completed.  We lost over $1,000 (probably closer to $2,000) worth of our personal property (clothing and expensive tools) which was contaminated with raw sewage that was still in the basement after moving into the home on December 16, 2011.


Breech of Contract

The following link describes the elements of a breech of contract claim in PA: http://www.avvo.com/legal-guides/ugc/the-elements-of-a-breach-of-contract-claim-in-pennsylvania

In PA, a breech of contract action involves:

1) the existence of a contract
2) a breech of duty imposed by the contract, and
3) damages.

A contract may be oral, written or inferred from the acts and conduct of the parties.

In a breech of contract action, damages are awarded to compensate the injured party for loss suffered due to the breech.  The purpose of damages is to put the injured party in as good as a position as the promised performance would have put them, having regard to both the reasonable foreseeability of the harm and to the extent that it could reasonably have been avoided by the injured party themselves.

In reference to Mr. Rooter of Pittsburgh, a breech of contract action involves:


1) the existence of a contract

Three contracts exist; however, there are two contracts which have been breached - Invoice #105738 on December 25, 2011 and Invoice #105742 on December 27, 2011.

2) a breech of duty imposed by the contract, and 

Breech of duty imposted by Invoice #105738 on December 25, 2011: (a) the outside sewer line was supposed to be inspected, implying that the ENITRE outdoor portion of the lateral sewer line would have video footage, but they stopped short at the clog 6 to 6 1/2 feet from the main sewer line (b) they were supposed to "re-do cement," which included the basement floor they jackhammered as well as the concrete slab just outside the basement door because we would never had agreed to the work if our home was not put back exactly how they found it.  In breech, the Mr. Rooter of Pittsburgh employee performing the so-called "finish work" looked around for a jackhammer but the other Mr. Rooter of Pittsburgh employee took it with him, so he mixed cement for only half of the concrete slab with no bonding agents applied old concrete - informing me that we could call and have it redone in the spring if there's a problem.  A few weeks after the Mr. Rooter of Pittsburgh employee poured the concrete, it cracked where the old concrete and new concrete meet and will have to be jackhammered and re-poured.

Breech of duty imposted by Invoice #105742 on December 27, 2011:  (a) according to the contract, the rest of the outside sewer was supposed to be replaced and stop at the tap which was indicated as "2' shy of main;" however, the outside sewer was never replaced but rather a 40 foot 4" insert was installed into the existing 6" terra cotta - even though the Mr. Rooter of Pittsburgh employee verbally stated to my Mother and I that a pipe-bursting procedure was going to occur which never occurred. (b) an independent video inspection confirms that Mr. Rooter of Pittsburgh breeched contract, stopping work 4 feet prior the point stated on the contract.  (c) The "no charge" toilet was charged at the cost of $400.



3) damages.


Since the purpose of damages is to put the injured party in as good as a position as the promised performance would have put them, having regard to both the reasonable foreseeability of the harm and to the extent that it could reasonably have been avoided by the injured party themselves, Below is my assessment of damages according to the conditions mentioned above:

The promised performance of all this work was to stop sewage from backing up into the basement; however, the version of the work Mr. Rooter of Pittsburgh employees actually performed never stopped the sewage from backing up into the basement.  Mr. Rooter of Pittsburgh employees were incapable of stopping the sewage backups after being called to our home twice after the claimed completion of work on December 30, 2011.

Since we had never experienced sewage backups in our lives and had no knowledge of what to expect to resolve any potential sewer line issues at the time of service AND considering the fact that we have strong examples of fraudulent misrepresentation in addition to strong examples of breech of contract that we did not realize occurred until 1-22-2013, it would have been unreasonable to foresee the harm and to avoid the harm.

After loosing a combined total of $20,267.05 and still experiencing the same problem, an analysis of the events surrounding the dates of service is reasonably expected to occur.

Damages

The following would put my Mother in as good as a position as the promised performance would have put her:


Landscaping (grade the yard):                                     $2,900
Concrete Slab:                                                           $1,000
Redo Shower Base & Relocate Drain:                          $5,000
"No Charge" Toilet:                                                     $400
No Proof Of Receiving EntitledMembership Pricing:       $1000
Estimating 4 Foot Breech:                                           $1,336 (At Mr. Rooter's Replacement Rate Per Foot)
Independent Camera Inspection:                                  $300

Total Damage Caused To My Mother By Doing Business With Mr. Rooter:  $11,936  




Bait and Switch Tactics/Deceptive Advertising



Attorney General's Information to Consumers Regarding Bait & Switch: http://www.attorneygeneral.gov/uploadedFiles/Consumers/bcp_book.pdf


"By law, stores are not allowed to advertise with the intent of pressuring or improperly luring
customers into buying a different or more expensive product.

Bait and switch involves first “baiting” a consumer with an advertisement for an appealing, inexpensive item. 

When the consumer visits the store, however, and asks to see the advertised merchandise, the salesperson discourages its purchase and attempts to sell a higher priced product, which
is the “switch.” Sometimes the “switch” may be to a product
that is the same price, but the store benefits because of a higher markup on the item."


Essentially, this is what Mr. Rooter of Pittsburgh employees and other employees of other franchisees do with their advertised "sales" (i.e.  FREE SECOND OPINION, FREE CAMERA INSPECTION, $95 DRAIN CLEANING, etc.).

In reference to our experience:

1) When you find yourself with a sewage backup in your basement, in comes Mr. Rooter with their advertised $95 drain cleaning and an employee who we believe was pretending not to be able to clear our lateral sewer line.
       a)  I explained, in the same "dire" terms Mr. Rooter has used, what the condition our sewer line was claimed to be in with the extreme presence of solidified grease in several (it was just three) sections of 70-80 foot lateral sewer line and the sewer and drain cleaning specialist said that it probably would have only taken about an hour to clear using the same attachment that the Mr. Rooter of Pittsburgh employee had on the end of his drain cleaning snake and by running a lot of water through the sewer line with a 2 month guarantee.

2) Then comes the free camera inspection.
       a) This is the point where Mr. Rooter of Pittsburgh employees alert you of the desperate state of your sewer line while it takes you a while to realize that, instead of having the entire picture of your sewer line each time they dive into your sewer line to inspect it, you have a tiny snapshot, with each incremental, only solution, replacement costing roughly $10,000 for however many feet they feel like including at the time (in our case it was 30 feet or less).  Their pitch is "The only way to solve the problem is...replace the sewer line."

3) Invoice #105742 is a strong example of how they bait & switched us by verbally stating that we were paying for a pipe-bursting product/service, then wrote down on the invoice that we were receiving a replacement product/service, but then actually provided a slip-lining product/service by inserting a 4" pipe into the existing 6" terra cotta pipes.

According to the FTC, an ad is deceptive if it contains a claim - or fails to disclose important information - that:

  • Is likely to mislead a "reasonable consumer" - that is, a typical person looking at the ad; and
  • Is "material" - that is, important to a consumer's decision to buy or use the product. Examples of "material" claims include representations about a product's price, safety, performance, features, or effectiveness.

As far as deceptive advertising, I would like to evaluate the advertised guarantees and promises of Mr. Rooter Franchises:


 He's Professional

1) Fast Service 24/7 
      (a) They arrived at our house about 5 hours after we called them to address the sewage backup.  I am not sure that is fast, but it was timely same day service.  So, this advertisement is probably slightly overstated.  

2) Never an overtime charge
      (a) Well, there was no extra charge on top of their prices; however, they have those costs already factored into their so-called "no hidden charges" pricing.  

3) Fixed right the first time
      (a)  Well, this I can confirm with certainty....THIS IS FALSE!  They won't fix it right or make it right either!

4)  Schedule appointment times
      (a)  They scheduled the first time we called and told us the day they they were going to start Invoice #105738.

5) Workmanship & parts guaranteed
      (a) Actually, they do not guarantee workmanship for sure.  Just look at the evidence of finish work I provided...Breech of contract and no making that mistake right...Recently, it was discovered that the toilet was not shimmed on the uneven basement floor and now the seal is broken.  Good thing that is not on the other wood-based floors of the house.   

6)Tells you the price before he starts
     (a)  Well, yes, they do.  The price was told to us before they started work on Invoice #105738 and Invoice #105742; however, on Invoice #105742, the work and price that was agreed to changed.  So, this is a they sort of do.  

He's an Expert

Well, um....Not that we've directly observed.  Cleaning the sewer line, hydroscrubbing, and installing the toilet aren't products/services that we observed being delivered competently.  The other services listed, well, we cannot comment on those because we did not have any other additional services performed.  

Good thing Mr. Rooter of Pittsburgh and Mr. Rooter Corporation showed us their true colors before we asked them or their sister companies to perform any other work at our home.  

We were able to ensure a company did not send Mr. Electric to our home as a subcontractor...I can only imagine, at this point, what we might have experienced.  Better to be safe than sorry like we were after Mr. Rooter of Pittsburgh took $20,267.05 only to do nothing about stopping sewage from backing up in our basement.  



**At this point, I am reviewing the content of the last three posts for factual accuracy, in addition to ensuring that I have adequately explained how I have arrived at my current opinions and conclusions concerning our interactions that took place with Mr. Rooter of Pittsburgh, Mr. Rooter Corporation, and The Dwyer Group. 

At least I have the ability to arrange and edit information in this blog format, which is far better than trying to weed through everything on Rip Off Report and other related forums to locate and update information** 





Mr. Rooter Plumbing and Owner Robert "Bob" A. Beall is reportedly the owner of the following locations:

http://www.rooter2.com

Mr. Rooter of Pittsburgh

Mr. Rooter of Youngstown
Mr. Rooter of Dayton
Mr. Rooter of Weirton

Recently, this website refers to this owner's businesses above:  http://www.plumbing-pittsburgh.com - an umbrella for all of the areas that he has declared to be officially serving; however, I recall them serving Ohio before they had officially bought the area.  


Technically, there have been several different websites they have used to switch things up and get search engines to bury the truth about their unethical business practices which have been reported by myself, other consumers, and even their former employees:  False Advertising; Breach of Contract, Shoddy Workmanship; and Nearly Non-Existent Customer Service.










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