Johnson Sewer and Drain Contractors, Inc. T/A Roto-Rooter v. Gambardella and Skinner

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHNSON SEWER AND DRAIN )
CONTRACTORS, INC. )
T/A ROTO-ROOTER, )
)
Plaintiff, )
) C.A. No. S22C-09-025 MHC
v. )
)
GINA GAMBARDELLA and MARCUS )
A SKINNER, )
)
Defendants. )

OPINION & ORDER

Submitted: March 20, 2025
Decided: June 24, 2025

Daniel A. Griffith, Esquire, Whiteford, Taylor & Preston, LLC, 405 N. King
Street, Suite 500, The Renaissance Center, Wilmington, DE 19801

Gina Gambardella, Pro Se, 30099 Stage Coach Circle, Milford, DE 19963

CONNER, J.

1
Plaintiff Johnson Sewer and Drain Contractors, Inc. t/a Roto Rooter has

moved for summary judgment against Defendant Gina Gambardella over a contract

dispute for services performed on a house in Milford, Delaware (the “Property”).

The Property is deeded to Defendant Marcus A. Skinner but Defendant Gina

Gambardella currently resides in the house alone.

FACTS

In October of 2021, Defendant Gambardella returned from a vacation to find

the Property flooded from a septic overage.1 Through her insurance with Allstate,

Defendant Gambardella retained a company, The Restoration Guys (“TRG”), to

repair damage and remove items from her home.2 TRG placed the items in on-site

storage units known as “PODS” to be cleaned.3 Defendant Gambardella testified

that TRG failed to clean the items put into the PODS, lost or destroyed items, and

otherwise failed to properly perform under the contract.4 Ultimately, after prodding

by Defendant Gambardella, Allstate terminated TRG from the project.5

1
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 31:2–11.
2
Id. at 35:20–23, 37:5–9.
3
Id. at 44:16–19.
4
Id. at 44:16–45:8.
5
Id. at 47:2–12.
2
Plaintiff was hired to work on the Property after TRG was fired. The Court

has been provided with three documents signed in connection with this litigation

dispute.

First, Plaintiff and Defendant Gambardella signed an agreement dated

February 28, 2022, titled “Water Extraction Agreement.”6 The Water Extraction

Agreement does not define the scope of services, but instead cites a separate

document known as the Emergency Work Authorization that specifies the water

extraction services to be provided.7 This Court has not been provided with the

Emergency Work Authorization or any other document itemizing the work

performed by Plaintiff. Under Section 5(c)(iii), “[w]ithin 10 days after [Defendant

Gambardella’s] receipt of the settlement payment from [her] insurance carrier, [she]

will pay [Plaintiff] the remaining amount due, including any amount not covered by

the insurance.”8

Second, on March 31, 2022, Defendant Gambardella signed a one-page

document with Plaintiff’s letterhead (the “Storage Liability Release”) which noted

that Plaintiff did not have access to the PODS that TRG left behind.9 The Storage

Liability Release explained Plaintiff would assume billing responsibilities for the

6
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. A.
7
Id. at § 1(a).
8
Id. at § 5(c)(iii).
9
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. B.
3
units via a transfer of custody from TRG until Plaintiff reached substantial

completion of the services for which Plaintiff was contracted, then transfer billing

responsibilities to Defendant Gambardella.10

Third, the parties signed a document titled Certificate of Satisfaction and

Direct Payment Authorization (hereinafter “Certificate of Satisfaction”) dated May

9, 2022.11 This document reads:

I acknowledge that water extraction, structural drying and or Microbial
remediation services provided by [Plaintiff] at the [Property], have been
completed to my satisfaction and that payment is now owed to
[Plaintiff]. I Further [sic] certify that [Plaintiff] has furnished all labor
and material for the services as specified in the “Emergency Work
Authorization.” I hereby authorize [Plaintiff] to invoice my insurance
carrier directly and authorize the insurance carrier to make payment
directly to [Plaintiff.] I understand and agree that the deductible and
any shortfalls in insurance coverage are my responsibility and are owed
to [Plaintiff] on or before the 10th day after receipt of settlement
payment from your insurance carrier.12

Although Defendant claims she does not remember signing the document,13

Defendant Gambardella has acknowledged her signature is on the Certificate of

Satisfaction14 and she has no evidence that the signature was forged.15

10
Id.
11
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. G.
12
Id.
13
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 74:7–8.
14
Id. at 73:17–74:10.
15
Id. at 78:6–8.
4
PROCEDURAL POSTURE

Plaintiff filed its original complaint on September 29, 2022. On December 1,

2022, the complaint was amended to add Defendant Skinner. After much delay,

Defendant Gambardella finally answered the complaint on May 5, 2023. However,

Defendant Gambardella’s answer did not respond to all allegations in Plaintiff’s

complaint. Thus, on July 7, 2023, this Court ordered that Defendant Gambardella

admit all allegations to which she failed to respond. One of these admissions is

paragraph 10, which states: “On or about April 8, 2022, Roto-Rooter completed its

mold remediation and contents cleaning services on the Property.” After retaining

Dean Campbell, Esquire, Defendant Gambardella submitted an amended answer and

counterclaim on December 18, 2023, which still noted the court-ordered admissions.

Plaintiff’s complaint as amended on December 1, 2022, alleges four counts,

only one of which, Quantum Meruit, is against Defendant Marcus A. Skinner.

Default judgment was entered against Defendant Skinner on June 2, 2023.

According to Defendant Gambardella’s deposition, Defendant Skinner no longer

lives in the house and signed a quitclaim deed in 2019 which was apparently not

recorded.16 Defendant Gambardella also testified that Defendant Skinner is aware

of the default judgment and told her to handle it.17

16
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 13:24–15:23.
17
Id. at 21:3–6.
5
As to the three remaining counts against Defendant Gambardella, Count I is

breach of contract for failing to pay Plaintiff for its services. Count II is breach of

contract for failure to pay within ten days of Defendant Gambardella receiving the

check from Allstate. Count III is for conversion, claiming Roto-Rooter had a

possessory right to the funds which Allstate provided Defendant Gambardella and

she deprived Plaintiff of that possessory right by wrongfully withholding those

funds.

On March 14, 2024, the parties stipulated that mediation would be conducted

prior to May 31, 2024.18 Mediation never occurred. Instead, the parties filed

dispositive motions and other motions for the Court’s consideration. On September

19, 2024, the Court advised that no further court action would occur until mediation

was conducted in good faith.19 On March 11, 2025, Dean Campbell, Esquire, filed

a Motion to Withdraw as counsel.20 In the Motion he noted that mediation was

scheduled for March 28, 2025. On March 21, 2025, the Motion to Withdraw was

granted.21 The mediation did not occur due to Defendant Gambardella failing to pay

her portion of the fee.22 On March 20, 2025, the Court docketed a Pro Se request by

Defendant Gambardella to bypass mediation due to hardship.23 On April 24, 2025,

18
D.I. 47
19
D.I. 66
20
D.I. 73
21
D.I. 76
22
D.I. 75
23
D.I. 77

6
Defendant Gambardella advised the Court of her intention to proceed Pro Se.24 The

Court can only conclude that Defendant has continually engaged in acts of delay

throughout the entire process. The final act is Defendant Gambardella’s refusal to

engage in the mediation which she agreed to on March 14, 2024. Due to Defendant

Gambardella’s conduct, the Court is compelled to rule on Plaintiff’s Motion for

Summary Judgement.

Plaintiff’s Motion for Summary Judgment against Defendant Gambardella

alleges that it is undisputed that Plaintiff performed work on the Property, that

Defendant Gambardella signed the Water Extraction Agreement, Storage Liability

Release, and Certificate of Satisfaction, and that she is withholding the funds she

received from Allstate. Plaintiff alleges that Defendant Gambardella was

contractually and legally obligated to disburse those funds in accordance with the

Water Extraction Agreement, Storage Liability Release, and Certificate of

Satisfaction, and her failure to do so was a breach of contract.

Defendant argues that there are two issues of fact that preclude summary

judgment: (1) the scope of the contract, both as written and performed, and (2) that

Plaintiff fails to specify its exact damages in Plaintiff’s motion for summary

judgment.

24
D.I. 79

7
Standard of Review

Under Superior Court Civil Rule 56, the burden of proof on a motion for

summary judgment falls on the moving party to establish 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.”25 If this initial burden is satisfied, then the burden shifts to the non-

moving party to establish the existence of one or more genuine issues of material

fact.26 All facts and reasonable inferences must be considered in a light most

favorable to the non-moving party.27 However, there is no issue for trial unless there

is sufficient evidence favoring the non-moving party for a jury to return a verdict for

that party.28 If the evidence is merely colorable or not significantly probative,

summary judgment may be granted.29

Analysis

a. Plaintiff is entitled to summary judgment as to the liability issue of the

breach of contract claims.

25
Super. Ct. Civ. R. 56(c); see e.g., Quality Elec. Co., Inc. v. E. States Constr. Serv., Inc., 663
A.2d 488 (Table) (Del. 1995).
26
Super. Ct. Civ. R. 56(e); see e.g., Heasley v. Allstate Prop. and Cas. Ins. Co., 2022 WL
951259 (Del. Super. Mar. 28, 2022).
27
Heasley v. Allstate Prop. and Cas. Ins. Co., 2022 WL 951259 at *2 (Del. Super. Mar. 28,
2022) (citing Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. 1986)).
28
Harmony Mill Ltd. P’ship v. Magness, 1990 WL 58149, at *3 (Del. Super. May 1, 1990).
29
Id.
8
Although Defendant Gambardella does not necessarily recall signing all three

documents, there is no genuine dispute that her signature is on the Water Extraction

Agreement, Storage Liability Release, and Certificate of Satisfaction. Defendant

admitted that the work was completed. There also is no genuine dispute that

Defendant Gambardella withheld the funds she received from Allstate to pay

Plaintiff and withheld them for more than ten days, which is a direct violation of her

payment obligations under Section 5(c)(iii) of the Water Extraction Agreement.

Defendant Gambardella challenges the scope of the Water Extraction

Agreement by highlighting limitations provisions in the agreement which are

inconsistent with the services Plaintiff claims were within the scope of the

agreement. Section 2(a) states that “ [Plaintiff’s] sole responsibility is to extract

existing water and to dry wet floor coverings and structural components. . . . We are

not responsible under this agreement to fix, repair or replace damaged property.”30

Section 2(c) provides “[Plaintiff is] not being retained under this agreement to

address mold. . . .”31 Meanwhile, Plaintiff specifically refers to its performance as

mold remediation and contents cleaning services in its complaint and motion for

summary judgment.

30
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. A at § 2(a).
31

9
Defendant Gambardella also challenges the operability of the Certificate of

Satisfaction by saying that the document was signed prematurely. Defendant

Gambardella argues that the work had not been scheduled or started as of May 9,

2022. This runs contrary to her admission of paragraph 10 of the complaint: “On or

about April 8, 2022, Roto-Rooter completed its mold remediation and contents

cleaning services on the Property.”

“Judicial admissions are recognized under Delaware law. Judicial admissions

are not a means of evidence but a waiver of all controversy and therefore a limitation

on the issues.”32 Judicial admissions operate as an unassailable statement of fact that

narrows the triable issues in the case.33 However, judicial statements “. . . are limited

to factual matters in issue, not statements of legal theories or conceptions.”34 Thus,

judicial admissions generally do not apply to contractual interpretation. 35

The Court cannot allow Defendant Gambardella to challenge the validity of

the Certificate of Satisfaction by reversing her admission of paragraph 10 of the

complaint. Considering this is the only challenge Defendant Gambardella has for

32
Ervin v. Vesnaver, 2000 WL 1211201, at *2 (Del. Super. June 20, 2000) (citations omitted).
33
BE & K Eng’g Co., LLC v. Rocktenn CP, LLC, 2014 WL 186835, at *7 (Del. Ch. Jan. 15,
2014) (quoting Merrit v. United Parcel Serv., 956 A.2d 1196, 1202 n.18 (Del. 2008)).
34
InterMune, Inc. v. Harkonen, 2023 WL 3337212, at *21 (Del. Ch. May 10, 2023) (quoting
Levinson v. Del. Comp. Rating Bureau, Inc., 616 A.3d 1182, 1186 (Del. 1992)).
35
Id.
10
the Certificate of Satisfaction, this Court finds no genuine dispute to the validity of

the Certificate of Satisfaction.

Defendant Gambardella’s challenges in interpreting the scope of the Water

Extraction Agreement are not similarly barred. The scope of the Water Extraction

Agreement being defined by an outside document referred to as the Emergency

Work Authorization and the limitations in Section 2 potentially overlapping with the

services described are both unresolved factual issues in interpreting the scope of the

Water Extraction Agreement.

However, while there are genuine factual issues regarding the scope of the

Water Extraction Agreement, these issues are not material to the determination of

liability. Defendant Gambardella’s signing of the Certificate of Satisfaction

followed by intentionally ignoring Plaintiff’s attempts at follow-up communication

are uncontested facts which ultimately entitle Plaintiff to summary judgment. The

Certificate of Satisfaction and subsequent ignoring of Plaintiff’s communication

estop Defendant from reversing her position that she was satisfied with the work

performed, barring her from challenging that Plaintiff underperformed or defectively

performed. The Certificate of Satisfaction and subsequent ignoring of Plaintiff’s

communications also serve as an acquiescence to any of Plaintiff’s performance that

potentially exceeded the scope of the original contract. Ultimately, the Certificate

of Satisfaction and Defendant Gambardella’s subsequent actions bar her from
11
challenging the scope of Plaintiff’s performance under the Water Extraction

Agreement. As there are no genuine disputes of material facts, summary judgment

for liability as to Counts I and II for breach of contract should be granted in

Plaintiff’s favor.

Defendant Gambardella’s own testimony was that she knew that the Plaintiff

planned to stop working on the project unless it got paid for the work already

performed.36 Defendant Gambardella then signed the Certificate of Satisfaction.

which states that she was satisfied with the work performed and that payment is

owed.37 Defendant Gambardella testified that after the Certificate of Satisfaction

was signed, she actively ignored Plaintiff when Plaintiff followed up on payment.38

Defendant Gambardella then mentions one phone call in June telling Plaintiff that

“. . . outstanding balances are paid when the work is completed,” then ignoring

Plaintiff’s further follow ups to resolve the situation.39 Defendant Gambardella

explained “If I saw an email come in from [Plaintiff] at this point in July [2022], I

probably didn’t even open it up.”40 Defendant Gambardella next explained that she

did not communicate with anyone regarding the matter for nine months while her

36
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 63:19–64:14.
37
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. G.
38
Pl. Johnson Sewer and Drain Contractors, Inc.’s Mot. For Summ. J. Ex. H at 88:9–20; 105:2–
14.
39
Id. at 105:2–14; 115:5–116:5.
40
Id. at 116:20–21.
12
insurance company was ignoring her.41 Defendant Gambardella then left the

basement with no air conditioning for two years and the mold worsened.42

Subsequently, she had several other contractors perform $100,000 worth of work on

the Property.43

Estoppel and acquiescence are equitable defenses which are available to both

equitable and legal claims,44 and thus the Delaware Superior Court has asserted

jurisdiction over such claims.45

Estoppel arises when a party to a transaction by word, deed, or silence

conducts themself in such a manner that the law forbids enforcement of a claim

arising but for the estoppel.46 Estoppel applies when a party lacks knowledge and

the means to acquire knowledge of the truth of the facts in question, relies upon the

conduct of the other party, and suffers a prejudicial change of position in

consequence thereof.47

To the degree Defendant Gambardella challenges that Plaintiff

underperformed or defectively performed under the contract, Defendant

41
Id. at 119:23–120:14.
42
See id. at 129:19–113:12.
43
Id. at 121:23–122:18.
44
See XRI Inv. Hldgs. LLC v. Holifield, 283 A.3d 581, 637–641 (Del. Ch. 2022).
45
See e.g., Harmony Mill Ltd. P’ship v. Magness, 1990 WL 58149, at *5 (Del. Super. May 1,
1990); Mizel v. Xenonics, Inc., 2007 WL 4662113, at *7–8 (Del. Super. Oct. 25, 2007).
46
Harmony Mill Ltd. P’ship v. Magness, 1990 WL 58149, at *5 (Del. Super. May 1, 1990)
(citing Timmons v. Campbell, 111 A.2d 220 (Del. Ch. 1955)).
47
Id. (citing Wilson v. Am. Ins. Co., 209 A.2d 902, 904 (Del. 1965)).
13
Gambardella is estopped from reversing her own signed satisfaction with the work.

Defendant Gambardella signed the Certificate of Satisfaction stating that she was

satisfied with the work performed. She then ignored Plaintiff’s follow-ups, minus

one phone call where she said to finish the work without further explanation as to

what work needed to be finished. Defendant Gambardella then allowed the mold

situation to worsen for years as she had several other contractors perform $100,000

worth of work. Plaintiff had no knowledge of what work Defendant Gambardella

had contested, relied upon Defendant Gambardella’s signature and subsequent lack

of communication, and thus had no opportunity to assess the work with which

Defendant Gambardella was dissatisfied before years of Defendant Gambardella

neglecting the basement and hiring other contractors with no accounting for

Plaintiff’s unfinished work. At this point in time, Plaintiff is prejudiced by

Defendant Gambardella’s inconsistent satisfaction and dissatisfaction. Plaintiff no

longer can reasonably remedy any defect of its performance or even assess what

possible damages Defendant Gambardella would have suffered separate from the

worsening preexisting basement issues and separate from work performed by TRG

or the contractors hired after Plaintiff. Defendant Gambardella agreed that the work

was completed to her satisfaction and thus she is estopped from reversing her

position by claiming Plaintiff underperformed or defectively performed under the

contract.

14
Acquiescence applies where a complainant has full knowledge of their rights

and the material facts and either (1) remains inactive for a considerable time; (2)

freely does what amounts to recognition of the complained of act; or (3) acts in a

manner inconsistent with the subsequent repudiation, which leads the other party to

believe the act has been approved.48 Applying acquiescence requires a fact-intensive

analysis, often depending on evaluating the knowledge, intention and motivation of

the acquiescing party.49

To the degree Defendant Gambardella argues that Plaintiff performed beyond

the scope of the agreement, her subsequent actions acquiesced to that

overperformance. Defendant Gambardella remained inactive for a considerable time

while consciously ignoring Plaintiff’s communications. Defendant Gambardella

also freely signed the Certificate of Satisfaction which recognizes and approves of

the work as actually performed by Plaintiff, overperformance or not. These actions

also are inconsistent with the subsequent repudiation which led Plaintiff to believe

performance had been approved. Defendant Gambardella’s behavior does not just

satisfy one of the three scenarios in which acquiescence applies, her behavior

satisfies all three. Thus, to the degree Defendant Gambardella contends that Plaintiff

48
Mizel v. Xenonics, Inc., 2007 WL 4662113, at *7 (Del. Super. Oct. 25, 2007) (quoting
Bakerman v. Sidney Frank Importing Co., Inc., 2006 WL 3927242, at *17 (Del. Ch. Oct. 10,
2006, revised Oct. 16, 2006)).
49
Julin v. Julin, 787 A.2d 82, 84 (Del. 2001).
15
performed beyond the scope of the original agreement, she acquiesced to that

performance.

b. The parties should brief the Court as to the final calculations of

damages.

Defendant Gambardella’s second contention is that there are still disputes as

to the damages calculated. Rule 56(c) of the Delaware Superior Court Civil Rules

states: “[a] summary judgment, interlocutory in character, may be rendered on the

issue of liability alone although there is a genuine issue as to the amount of

damages.”

Plaintiff has not provided the Emergency Work Authorization defining the

scope of services provided. Additionally, Plaintiff has pleaded specific damages in

its complaint but has not provided detailed accounting of those damages. Although

Defendant Gambardella is liable, Plaintiff still has the burden to establish the

damages in this case.

Thus, because there is no genuine issue as to material facts as to liability, and

because summary judgment may be rendered as to liability without determining

damages, summary judgment is GRANTED IN PART as Defendant Gambardella

is liable to Plaintiff as to Counts I and II. The parties are ordered to brief damage

calculations. Plaintiff shall file their opening brief on or before July 16, 2025.

16
Defendant Gambardella shall file her answering brief on or before August 6, 2025.

Plaintiff shall file any reply brief by August 20, 2025.

c. Plaintiff’s conversion claim fails to state a separate cause of action and is

dismissed.

When a plaintiff's claim arises solely from a breach of contract, the plaintiff

“generally must sue in contract, and not in tort.”50 “Thus, in order to assert a tort

claim along with a contract claim, the plaintiff must generally allege that the

defendant violated an independent legal duty, apart from the duty imposed by

contract.”51 The exception is for the return of identical money, which applies when

the money can be described or identified as a specific chattel, not when the party

seeking payment could be satisfied by the payment of money generally.52

Here, Plaintiff alleges conversion in Count III but has not identified any

reason why it has any possessory right to the funds which Allstate provided

Defendant Gambardella except due to Plaintiff’s contractual performance.

Furthermore, the identical money exception does not apply, as the money claimed

under Count III is not a specific chattel and Plaintiff would be made whole by the

payment of any money generally, not just the specific check Allstate provided

50
Kuroda v SPJS Holdings, L.L.C., 971 A.2d 872, 880, 889 (Del. Ch. 2009) (quoting Data
Mgmt. Internationale, Inc. v. Saraga, 2007 WL 2142848, at *3 (Del. Super. July 25, 2007)).
51
Id.
52
Id. at 890.
17
Defendant Gambardella. Since conversion is an inappropriate alternative pleading

to Plaintiff’s breach of contract claims, Plaintiffs fail to state a claim as to Count III.

Thus, Count III is DISMISSED.

CONCLUSION

Summary Judgment is GRANTED IN PART finding that Defendant

Gambardella is liable as to Counts I and II. The parties shall brief the Court

regarding damages as outlined. Count III is DISMISSED.

IT IS SO ORDERED.

/s/ Mark H. Conner
Mark H. Conner, Judge

oc: Prothonotary

18