Pollock, R. v. National Football League , 171 A.3d 773 ( 2017 )

J-A07044-17
2017 Pa. Super. 192
RICHARD POLLOCK, AN ADULT : IN THE SUPERIOR COURT OF
INDIVIDUAL, CHERYL POLLOCK, AN : PENNSYLVANIA
ADULT INDIVIDUAL, PAUL L. KUTCHER, :
AN ADULT INDIVIDUAL, AND CYNTHIA :
P. KUTCHER, AN ADULT INDIVIDUAL, :
:
Appellants :
:
v. :
:
NATIONAL FOOTBALL LEAGUE AND :
DALLAS COWBOYS FOOTBALL CLUB, :
LTD. : No. 1611 WDA 2016
Appeal from the Order Entered September 27, 2016
in the Court of Common Pleas of Allegheny County
Civil Division at No(s): GD-14-004867
BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.
OPINION BY STRASSBURGER, J.: FILED JUNE 21, 2017
Richard Pollock, Cheryl Pollock, Paul L. Kutcher, and Cynthia P.
Kutcher (Plaintiffs, collectively) appeal from the September 27, 2016 order
that denied Plaintiffs’ motion for leave to file a second amended complaint
against the National Football League (the NFL).1 We affirm.
The trial court summarized the history of the case as follows.
Plaintiffs are four ticketholders for Super Bowl XLV held in
Arlington, Texas, on February 6, 2011. Plaintiffs were among
the group of ticketholders who were unable to watch the game
from the seats designated on their tickets because these were
temporary seats not approved by safety authorities in time for
1
The order also granted Plaintiffs’ request to discontinue their claims against
the Dallas Cowboys Football Club, Ltd. Hence, although quotations in this
memorandum reference “defendants” in this action, the NFL is the only
defendant involved in this appeal.
*Retired Senior Judge assigned to the Superior Court.
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use at the game. No adequate seats were offered to Plaintiffs.
This lawsuit arises out of Plaintiffs’ being denied access to the
seats designated on the tickets and defendants’ failure to advise
Plaintiffs when they purchased the tickets that they would be
receiving temporary seats that did not yet exist and that there
was no guarantee that an occupancy permit would be issued by
the City of Arlington for these seats prior to the game.
Initially, this lawsuit was commenced in proceedings at
Pollock v. National Football League and Dallas Cowboys
Football Club, Ltd., [2013 WL 1102823 (W.D.Pa. March 15,
2013),] filed in the United States District Court for the Western
District of Pennsylvania (2:12-cv-130). The initial complaint
raised tort claims, including claims based upon the [Unfair Trade
Practices and] Consumer Protection Law [(UTPCPL), which allows
recovery of treble damages, costs, and attorney fees, 73 P.S.
§ 201-9.2(a)]. In the initial complaint, Plaintiffs also alleged
that their Super Bowl tickets constituted valid, enforceable
contracts against the NFL and asserted a claim for a breach of
contract based on the NFL’s failure to provide the seats
designated on the face of the tickets.
Defendants filed a motion to dismiss all of Plaintiffs’ tort
claims under the Pennsylvania economic loss/gist of the action
doctrines. In response to this motion, Plaintiffs amended their
complaint to abandon their claim for breach of contract while
reasserting their tort claims arising out of the NFL’s failure to
provide the seating reflected by the tickets. Defendants then
filed a motion to dismiss in which defendants contended that all
of plaintiffs’ claims in their amended complaint (which no longer
included breach of contract claims) were barred by the gist of
the action/economic loss doctrine notwithstanding Plaintiffs’
decision not [to] reassert a breach of contract claim. The district
court agreed.
At page 6 of a memorandum order dated March 15, 2013,
the district court ruled: “Plaintiffs’ claims for negligent
misrepresentation (Count II and III) are barred by the gist of the
action doctrine because the tort claims are nothing more than a
breach of the contractual obligations created by the purchase of
the Super Bowl tickets.” At page 11, the court ruled: “Plaintiffs’
[UTPCPL] and fraudulent inducement claims are barred by the
gist of the action doctrine.” The court also stated at page 11
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that the economic loss doctrine prohibits Plaintiffs from
recovering in tort economic losses to which their entitlement
flows only from contract.[2]
Defendants also moved for dismissal of the entire action
because of Plaintiffs’ failure to satisfy the amount in controversy
requirement, and the district court ruled that the action must be
dismissed for want of jurisdiction given the lack of viable claims
to support awards for punitive damages, attorney fees, and
triple damages. On appeal, the [Third Circuit] court of appeals
agreed that the district court did not err in granting defendants’
motion to dismiss for failure to state a claim and defendants’
motion to dismiss for lack of jurisdiction. [Pollock v. Nat’l
Football League, 553 F. App’x 270 (3rd Cir. 2014).]
Trial Court Opinion, 9/27/2016, at 1-2 (some capitalization altered).
2
“The gist of the action doctrine prohibits a plaintiff from re-casting ordinary
breach of contract claims into tort claims.” B.G. Balmer & Co. v. Frank
Crystal & Co., Inc., 148 A.3d 454, 468 (Pa. Super. 2016), appeal denied,
No. 725 MAL 2016, 2017 WL 1015542 (Pa. Mar. 14, 2017).
Under Pennsylvania law, a cause of action framed as a tort but
reliant upon contractual obligations will be analyzed to determine
whether the cause of action properly lies in tort or contract. In
general, courts are cautious about permitting tort recovery
based on contractual breaches. In keeping with this principle,
this Court has recognized the gist of the action doctrine, which
operates to preclude a plaintiff from re-casting ordinary breach
of contract claims into tort claims. Where fraud claims are
intertwined with breach of contract claims and the duties
allegedly breached are created and grounded in the contract
itself, the gist of the action is breach of contract. Thus, claims of
fraud in the performance of a contract are generally barred
under the gist of the action doctrine.
Autochoice Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207,
1212 (Pa. Super. 2010) (citation and quotation marks omitted; emphasis in
original). Similarly, “Pennsylvania law generally bars claims brought in
negligence that result solely in economic loss.” Gongloff Contracting,
L.L.C. v. L. Robert Kimball & Assocs., Architects & Engineers, Inc.,
119 A.3d 1070, 1076 (Pa. Super. 2015).
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On March 20, 2014, Plaintiffs transferred the action from federal to
state court pursuant to 42 Pa.C.S. § 5103. More than two years passed with
no docket activity until Plaintiffs filed a motion for leave to file a second
amended complaint. The proposed complaint included three counts: (1)
fraudulent or negligent inducement, (2) violation of the UTPCPL, and (3)
breach of contract. Motion, 4/4/2016, at Exhibit A. The NFL opposed the
motion, claiming that the tort claims were barred by the doctrines of res
judicata and collateral estoppel, and that the contract claim was barred by
the statute of limitations. Brief in Opposition, 5/17/2016, at 6-13. The trial
court denied Plaintiffs’ motion by memorandum and order of September 27,
2016. Plaintiffs thereafter timely filed a notice of appeal.
Plaintiffs present the following questions for this Court’s review.
1. Whether a federal district court order, dismissing
[Plaintiffs’] tort claims under Fed.R.Civ.P. 12(b)(6) and
dismissing the federal court action for want of subject matter
jurisdiction and without prejudice to Plaintiffs[’] refiling the
action in state court as authorized by 42 Pa.C.S. § 5103(b),
prohibits [Plaintiffs] from re-filing tort actions and an action for
violation of the [UTPCPL] against [the] NFL in state court based
on res judicata or collateral estoppel principles?
2. Whether 42 Pa.C.S. § 5103(b) preserves [Plaintiffs’]
right to raise the tort claims, claim for violation of the UTPCPL
and breach of contract claim against [the] NFL alleged in
[Plaintiffs’] proposed second amended complaint after
[Plaintiffs’] action has been dismissed by a federal district court
for want of subject matter jurisdiction and without prejudice to
Plaintiffs refiling the action in state court as authorized by 42
Pa.C.S. § 5103(b)?
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3. Whether 42 Pa.C.S. § 5103 is unconstitutionally
vague and ambiguous?
4. In the alternative, whether the averments stated in
[Plaintiffs’] proposed second amended complaint merely amplify
those stated in [their] first amended complaint so as to permit
[them] to plead a breach of contract action in [the] proposed
second amended complaint?
Plaintiffs’ Brief at 3-4 (trial court answers omitted; some capitalization
altered).
We begin our consideration of Plaintiffs’ questions with our standard of
review.
Our standard of review of a trial court’s order denying a plaintiff
leave to amend its complaint ... permits us to overturn the order
only if the trial court erred as a matter of law or abused its
discretion. The trial court enjoys broad discretion to grant or
deny a petition to amend. Although the court generally should
exercise its discretion to permit amendment, where a party will
be unable to state a claim on which relief could be granted, leave
to amend should be denied.
Schwarzwaelder v. Fox, 895 A.2d 614, 621 (Pa. Super. 2006) (citations
and quotation marks omitted).
Here, the trial court denied Plaintiffs leave to amend their complaint to
plead the tort claims stated in counts I and II of Plaintiffs’ proposed second
amended complaint because it held that those claims were barred by res
judicata and/or collateral estoppel. Trial Court Opinion, 9/27/2016, at 3.
Plaintiffs argue that the trial court’s ruling is contrary to 42 Pa.C.S. § 5103.
Section 5103 provides as follows, in relevant part.
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(a) General rule.--[] A matter which is within the exclusive
jurisdiction of a court or magisterial district judge of this
Commonwealth but which is commenced in any other tribunal of
this Commonwealth shall be transferred by the other tribunal to
the proper court or magisterial district of this Commonwealth
where it shall be treated as if originally filed in the transferee
court or magisterial district of this Commonwealth on the date
when first filed in the other tribunal.
(b) Federal cases.--
(1) Subsection (a) shall also apply to any matter
transferred or remanded by any United States court for a
district embracing any part of this Commonwealth. In
order to preserve a claim under Chapter 55 (relating to
limitation of time), a litigant who timely commences an
action or proceeding in any United States court for a
district embracing any part of this Commonwealth is not
required to commence a protective action in a court or
before a magisterial district judge of this Commonwealth.
Where a matter is filed in any United States court for a
district embracing any part of this Commonwealth and the
matter is dismissed by the United States court for lack of
jurisdiction, any litigant in the matter filed may transfer
the matter to a court or magisterial district of this
Commonwealth by complying with the [requisite] transfer
provisions....[3]
42 Pa.C.S. § 5103.
As Plaintiffs properly note, the “policy behind 42 Pa.C.S. § 5103 is to
preserve a claim or cause of action timely filed in federal court on the
ground that the claimant should not lose the opportunity to litigate the
merits of the claim simply because the claimant erred regarding
federal jurisdiction.” Plaintiffs’ Brief at 23 (emphasis added) (citing
3
Plaintiffs’ compliance with the transfer provisions of the statute is not
disputed.
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Commonwealth v. Lambert, 765 A.2d 306, 320 (Pa. Super. 2000)).
However, Plaintiffs go on to contend that this statute preserved their right to
litigate their tort claims in state court after the federal court dismissed the
complaint for lack of jurisdiction. Id. at 25. This latter contention ignores
the fact that the federal court’s rulings were based upon the merits of the
tort claims.
Plaintiffs stated both tort and contract claims in their initial complaint
filed in federal court. Pollock, 2013 WL 1102823, at *2. After the NFL
moved to dismiss the tort claims under the gist-of-the-action and economic
loss doctrines, Plaintiffs amended their complaint to state only tort claims,
and expressly disavowed that they had any contractual relationship with the
NFL. Id. The NFL sought to have Plaintiffs’ amended complaint dismissed
based upon the gist of the action sounding in contract. Id. The district
court agreed with the NFL:
Here, the parties’ obligations arise solely from [P]laintiff[s’]
purchase and the NFL’s sales of the Super Bowl tickets. Any
duties imposed on defendants were created as a result of those
transactions. And the alleged breach was the failure to provide
the very essence of what the parties’ contract obligated
defendants to provide: admission to and a spectator seat for the
game. The asserted breach gives rise to liability grounded in the
contract and [P]laintiffs’ damages result from defendants’ failure
to provide what was promised by sales of the tickets.
Id. at *5. See also id. at *7 (“[P]laintiffs’ intentional fraud claims are
barred by the economic loss doctrine.”).
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Having determined that Plaintiffs failed to state viable tort claims, the
district court considered whether Plaintiffs could recover “under any viable
theory” the requisite $75,000 necessary to satisfy the threshold for diversity
jurisdiction in federal court under 28 U.S.C. § 1332. Id. at *9. The district
court examined the amounts of economic losses sustained by Plaintiffs and
found that the allegations amounted to “actual losses of $2,384.50 each for
the Pollocks and $954.21 for each of the Kutchers.” Id. Thus, rather than
allowing Plaintiffs to amend the complaint to raise the contract claims that
were supported by the facts alleged, the district court dismissed the action
for lack of jurisdiction. Id. The order effectuating the dismissal indicated
that it was without prejudice for Plaintiffs to refile the action in state court
under section 5103. Id. at *1.
Plaintiffs unsuccessfully appealed the district court’s decision. The
Third Circuit Court of Appeals held as follows.
[Plaintiffs] have exercised a great deal of creativity in
construing their claims as sounding in tort and statutory fraud.
Yet, the inescapable fact is that the entire suit is grounded in
their purchase of tickets, commonly regarded as revocable
licenses, to a sporting event. The tickets created all of the
obligations and duties owed by the [NFL] to [Plaintiffs]…. The
essence of the suit is that [Plaintiffs] suffered damages because
the [NFL] did not fulfill its obligation to give them access to
particular seats during the 2011 Super Bowl game, as specified
on their tickets. The contracts are inseparable from their claims.
We conclude that, in spite of [Plaintiffs’] efforts to express
their claims as negligent misrepresentation against the [NFL]…,
these disputes sound in contract. Moreover, their contention
that the [NFL] engaged in fraudulent misrepresentation and
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fraudulent inducement are based upon, essentially, the same
acts as the negligence counts, and their assertions of injury and
pleas for relief inextricably arise from the alleged breach of the
contracts at issue. The district court ruled that [Plaintiffs] had a
remedy in contract law for any actual and consequential
monetary losses. We agree. The district court properly
dismissed all of these claims.
***
Finally, without any legitimate basis to assert punitive
damages, attorney’s fees, treble damages, or additional
compensation for losing a “once in a lifetime opportunity” to
view the sporting event from their promised seats, the pleadings
do not provide any reasonable means for each [Plaintiff] to plead
contractual damages that meet the jurisdictional threshold. 28
U.S.C. § 1332(a). The district court appropriately assessed
[Plaintiffs’] losses to be far below the statutory minimum and
this reasonably grounded its decision to dismiss.
Pollock, 553 F. App’x at 270-71 (footnotes and unnecessary capitalization
omitted).
From the above it is abundantly clear that Plaintiffs fully litigated their
tort claims in federal court and lost, not because the federal court
determined that it lacked jurisdiction over the tort claims, but because those
claims were not viable on their merits. As Plaintiffs’ tort claims were not
dismissed because they filed them in the wrong court, section 5103 did not
preserve those claims for litigation in state court.4
4
See, e.g., Lambert, 765 A.2d at 320 (“Section 5103 allows the federal
court to transfer an erroneously filed case to the Court of Common Pleas,
rather than dismissing it outright. The stated policy behind this section is to
preserve a claim or cause of action timely filed in federal court on the
ground that the claimant should not lose her opportunity to litigate the
merits of the claim simply because she erred regarding federal jurisdiction.
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Rather, after transfer of the action to state court, Plaintiffs’ tort claims
were barred under the doctrines of res judicata, collateral estoppel, and/or
law of the case.5
Under the doctrine of res judicata, or claim preclusion, a
final judgment on the merits by a court of competent jurisdiction
will bar any future action on the same cause of action between
the parties and their privies. The doctrine therefore forbids
further litigation on all matters which might have been raised
and decided in the former suit, as well as those which were
actually raised therein. Similarly, [t]he doctrine of collateral
estoppel or issue preclusion prevents a question of law or an
issue of fact that has once been litigated and fully adjudicated in
a court of competent jurisdiction from being relitigated in a
subsequent suit.
Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa.
Super. 2016) (internal citations and quotation marks omitted).
While res judicata and collateral estoppel apply to bar relitigation of
claims or issues in a subsequent action that were subject to a final judgment
in a prior action, the law of the case doctrine exists to prevent a party from
relitigating claims or issues that have been resolved previously within the
Thus, the transfer statute ameliorates the hardship on litigants who
inadvertently file their action in the wrong place.”) (internal citations and
quotation marks omitted).
5
The NFL argued, and the trial court agreed, that res judicata was applicable
to Plaintiffs’ proposed claims. However, given that this instant action is a
continuation of the federal action, rather than a second, subsequent action
initiated after the federal action was concluded, it is not clear that the
technical requirements of res judicata have been met. Therefore, we also
consider whether law-of-the-case doctrine supports the trial court’s exercise
of discretion in ruling upon Plaintiffs’ motion to amend. Plasticert, Inc. v.
Westfield Ins. Co., 923 A.2d 489, 492 (Pa. Super. 2007) (noting that this
Court may affirm the trial court on any valid basis).
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same action, either in a prior appeal or by a judge of coordinate jurisdiction.
Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (“Among rules that
comprise the law of the case doctrine are that: (1) upon remand for further
proceedings, a trial court may not alter the resolution of a legal question
previously decided by the appellate court in the matter; (2) upon a second
appeal, an appellate court may not alter the resolution of a legal question
previously decided by the same appellate court; and (3) upon transfer of a
matter between trial judges of coordinate jurisdiction, the transferee trial
court may not alter the resolution of a legal question previously decided by
the transferor trial court.” (internal quotation marks and citation omitted)).
All three doctrines are based upon similar policy determinations,
including the idea that a party should not get a second bite at the apple
when he or she had a full and fair opportunity the first time. See, e.g.,
Lebeau v. Lebeau, 393 A.2d 480, 482 (Pa. Super. 1978) (“The policies
underlying both [res judicata and collateral estoppel] are the same: to
minimize the judicial energy devoted to individual cases, establish certainty
and respect for court judgments, and protect the party relying on the prior
adjudication from vexatious litigation.”); Plaxton v. Lycoming Cty. Zoning
Hearing Bd., 986 A.2d 199, 208 (Pa. Cmwlth. 2009) (“Collateral estoppel is
based on the policy that a losing litigant deserves no rematch after a defeat
fairly suffered, in adversarial proceedings, on an issue identical in substance
to the one he subsequently seeks to raise.”) (citation and internal quotation
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marks omitted); Commonwealth v. Gacobano, 65 A.3d 416, 419–20 (Pa.
Super. 2013) (“The various rules which make up the law of the case doctrine
serve not only to promote the goal of judicial economy ... but also operate
(1) to protect the settled expectations of the parties; (2) to insure uniformity
of decisions; (3) to maintain consistency during the course of a single case;
(4) to effectuate the proper and streamlined administration of justice; and
(5) to bring litigation to an end.”).
Pursuant to the policies underlying the doctrines of res judicata,
collateral estoppel, and law of the case, Plaintiffs should not now be entitled
to a second chance to litigate their tort claims before a different tribunal.
Therefore, we hold that the trial court did not abuse its discretion in denying
Plaintiffs’ leave to reassert their tort claims in their second amended
complaint.6
Having determined that the trial court did not err in refusing to allow
Plaintiffs to relitigate their tort claims, we consider whether the trial court
abused its discretion in denying Plaintiffs leave to amend their complaint to
state contract claims. As noted, the federal court dismissed Plaintiffs’ action
without prejudice for them to seek a remedy in state court for the NFL’s
6
Our decision is not altered by the fact that the federal court dismissed the
action without prejudice for Plaintiffs to transfer the case to state court. It is
clear from the federal court opinions that the “without prejudice” language
referred to contract recovery, not the tort claims. See, e.g., Pollock, 553
F. App’x at 271 (“[T]he pleadings do not provide any reasonable means for
each [Plaintiff] to plead contractual damages that meet the jurisdictional
threshold.”).
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breach of its contracts with Plaintiffs. However, the trial court ruled that the
statute of limitations barred the breach of contract claims. Trial Court
Opinion, 9/27/2016, at 4.
Plaintiffs contend that they are entitled to relief from this Court under
one of the following theories: (1) the statute of limitations does not bar the
contract claims by virtue of the application of section 5103 because they
pled them in their original complaint in federal court, Plaintiffs’ Brief at 26;
or, in the alternative, (2) the addition of contract claims merely amplifies the
timely-filed allegations, id. at 33-34.
We disagree. Plaintiffs abandoned their contract claims in federal
court by filing an amended complaint omitting the contract claims. Hionis
v. Concord Twp., 973 A.2d 1030, 1036 (Pa. Cmwlth. 2009) (citing Freeze
v. Donegal Mut. Ins. Co., 470 A.2d 958, 960 n.5 (Pa. 1983)) (“An
amended complaint has the effect of eliminating the prior complaint.”).
Thus, there was no contract claim pending when the federal court dismissed
the action for lack of jurisdiction and Plaintiffs transferred the action from
federal court to state court in March 2014. Plaintiffs consciously chose to
forego their contract claims in pursuit of higher-damage tort claims; they did
not lose the chance to seek a remedy for breach of contract “simply because
[they] erred regarding federal jurisdiction.” Lambert, 765 A.2d at 320. As
such, no contract claim transferred to state court when Plaintiffs effectuated
the transfer through section 5103.
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The import of section 5103 to this case is that Plaintiffs’ original
complaint and amended complaint must be treated as if the action had been
litigated in state court from day one. Under section 5103, no claims stated
in the complaint but dismissed for lack of jurisdiction are barred by the
statute of limitations. In other words, Plaintiffs’ motion for leave to file a
second amended complaint is subject to the same analysis as it would have
been had Plaintiffs filed the original complaint in the Allegheny County Court
of Common Pleas in February 2012, filed the amended complaint there in
June 2012 omitting the contract claims, and then sought to file another
amended complaint in April 2016, well beyond four years after Superbowl
XLV.
Leave to amend a complaint is to be liberally granted; however,
“amendment is not permitted to present a new cause of action where the
statute of limitations has expired.” Blackwood, Inc. v. Reading Blue
Mountain & N. R. Co., 147 A.3d 594, 598 (Pa. Super. 2016). “An
amendment states a new cause of action where the amendment rests on a
different legal theory, basis for recovery or relationship between the parties
than did the original pleading.” Am. Motorists Ins. Co. v. Farmers Bank
& Trust Co. of Hanover, 644 A.2d 1232, 1235 (Pa. Super. 1994).
It is beyond cavil that breach of contract is a different legal theory
than a tort claim. See, e.g., B.G. Balmer & Co, 148 A.3d at 469 (“The
critical conceptual distinction between a breach of contract claim and a tort
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claim is that the former arises out of breaches of duties imposed by mutual
consensus agreements between particular individuals, while the latter arises
out of breaches of duties imposed by law as a matter of social policy.”). It is
also clear that the facts pled in Plaintiffs’ amended complaint filed in federal
court supported a breach of contract claim. Based upon this, Plaintiffs argue
that “it would be disingenuous for [the] NFL to claim the averments stated in
the last pleading filed in the federal court action … were insufficient to place
them on notice of the existence of the claim or that they would somehow be
prejudiced” by Plaintiffs’ pursuing the contract claim proposed in the second
amended complaint. Plaintiffs’ Brief at 31 n.5.
What this Court finds disingenuous is Plaintiffs’ arguing that the NFL
should have expected to defend a claim for breach of contract after Plaintiffs
represented over and over again, in at least ten different filings in the
federal district and appellate courts, that there was no contractual
relationship between Plaintiffs and the NFL, that the operative complaint
stated no allegations of a contract, and that it would be impossible for
Plaintiffs to state any contract claim. See Trial Court Opinion, 9/27/2016, at
Attachment 1 (quoting four pages of Plaintiffs’ denials of a contract with the
NFL). Plaintiffs had ample opportunity to seek recovery from the NFL for its
failure to deliver the seats it agreed to provide to Plaintiffs. They chose and
persisted in pursuing an unviable path for recovery, and ultimately waited
too long to follow the proper one.
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Upon this record, we conclude that the trial court acted within its
discretion in denying Plaintiffs’ leave to amend their complaint to state a
breach of contract claim.7
Order affirmed.
7
As an alternative argument, Plaintiffs contend that 42 Pa.C.S. § 5103 is
unconstitutionally vague in that it fails “to give fair notice of what a litigant
must do” to avoid the bar of the statute of limitations on cases transferred
from federal court. Plaintiffs’ Brief at 32. Because the record does not
indicate that Plaintiffs notified the attorney general of their constitutional
challenge to the statute as required by Pa.R.C.P. 235 and Pa.R.A.P. 521(a),
the claim is waived. See, e.g., In re A.H., 763 A.2d 873, 880 (Pa. Super.
2000). Plaintiffs argue that notice to the Attorney General was not required
because theirs is an as-applied rather than a facial challenge to the
constitutionality of the statute. Plaintiffs’ Reply Brief at 15-16. Even if we
were convinced that that is an accurate portrayal of Plaintiffs’ challenge, we
would still find waiver. Plaintiffs’ argument regarding the constitutionality of
section 5103 is woefully underdeveloped, failing to offer any discussion of
the applicable constitutional standards, let alone citation to compelling
authority to overcome the “strong presumption in the law that legislative
enactments do not violate the Constitution.” Commonwealth v. Packer,
798 A.2d 192, 199-200 (Pa. 2002). See also Wirth v. Commonwealth,
95 A.3d 822, 837 (Pa. 2014) (holding claim was waived for
underdevelopment).
Moreover, Plaintiffs’ claim is patently meritless. Section 5103 operated to
give Plaintiffs precisely what its language indicated: treatment of the action
as if it had been filed in state court initially. Had Plaintiffs sought to amend
their complaint to state contract claims at the time the case was transferred
to state court, or at any time before February 2015, the statute of
limitations would not have expired. See 42 Pa.C.S. § 5525(a) (providing a
four-year statute of limitations for actions upon a contract). However,
Plaintiffs waited more than two years after the transfer before they sought
leave in April 2016 to add a contract claim. It was not any ambiguity in
section 5103 that deprived Plaintiffs of their right to pursue a remedy in
contract; rather, it was a lack of diligence in observing the deadline imposed
by the statute of limitations. That lack of diligence would have led to the
same result had the entirety of the litigation of the case taken place in state
court.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/21/2017
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