Diehl, G. v. The Cutler Group

J-A11029-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
GLENN AND WENDY DIEHL, H/W AND IN THE SUPERIOR COURT OF
DANIEL AND SUSAN SCOTT, H/W AND PENNSYLVANIA
GAYATHRI AND SRIRAM KRISHNAN, H/W
AND RASHMI RADHAKRISHNAN AND
LISA PARVISKHAN AND JOSEPH AND
ANN WORRELL, H/W,
v.
THE CUTLER GROUP, INC.,
APPEAL OF: JOSEPH AND ANN WORRELL,
H/W
No. 2302 EDA 2015
Appeal from the Order Entered December 22, 2014
In the Court of Common Pleas of Chester County
Civil Division at No(s): 2010-08568
BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 18, 2016
Appellants Joseph and Ann Worrell (“the Worrells”), husband and wife,
appeal from the order entered on December 22, 2014, in the Chester County
Court of Common Pleas that granted summary judgment in favor of
Appellee, The Cutler Group, Inc. (“Cutler”). After careful review, we affirm.
A prior panel of this Court summarized the relevant facts and
procedural history of this matter as follows:
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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The Worrells, along with several other groups of plaintiffs,1
commenced this litigation in 2010, asserting breach of contract,
breach of express warranty, breach of implied warranty, and
violation of the Unfair Trade Practices and Consumer Protection
Law (UTPCPL), 73 P.S. §§ 201-1-201-9.3.2.2 According to the
plaintiffs, Cutler constructed their homes using an inferior stucco
cladding system, which permitted moisture infiltration resulting
in structural damage to their homes.
1
Plaintiffs included the following: Glenn and Wendy
Diehl, h/w; Daniel and Susan Scott, h/w; Gayathri
and Sriram Krishnan, h/w; Rashmi Radhakrishnan
and Lisa Parviskhan; and Joseph and Ann Worrell,
h/w.
2
In February 2011, plaintiffs filed an amended
complaint. In it, the Worrells abandoned their claim
for breach of contract.
In July 2011, the trial court sustained certain preliminary
objections filed by Cutler, dismissing the Worrells’ claims with
prejudice. The Worrells filed a motion for reconsideration.
Thereafter, in January 2013, the trial court granted
reconsideration, reversed its prior determination, and overruled
the preliminary objections, thus reinstating the Worrells’ claims.
Throughout this period, settlement negotiations
proceeded. In March and December 2013, Cutler submitted
settlement conference memoranda. From these, we infer that
the Scotts, the Diehls, as well as Mr. Radhakrishnan and
Ms. Parviskhan agreed to settlement terms with Cutler. Thus, in
January 2014, the remaining plaintiffs were the Worrells and the
Krishnans.3
3
The March 2013 memorandum states explicitly
that the Scotts settled with Cutler. This is confirmed
by the Chester County docket, which indicates that,
in September 2012, this matter was discontinued as
to plaintiffs Daniel and Susan Scott. The March 2013
memorandum also sets forth the terms of settlement
offers extended to the Diehls, Mr. Radhakrishnan,
and Ms. Parviskhan, but suggests the offers were
rejected. Nevertheless, the December 2013
memorandum does not identify these plaintiffs and
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omits reference to pending settlement negotiations
with them, focusing instead on the Worrells and the
Krishnans. Unfortunately, however, the docket is
silent regarding any disposition of the claims alleged
by the Diehls, Mr. Radhakrishnan and
Ms. Parviskhan.
In April 2014, Cutler filed a motion for summary judgment,
limited to the Worrells, asserting their claims were precluded by
a settlement agreement reached in a parallel case brought by
the Worrells’ insurance carrier. The trial court denied the
motion, noting that the terms of the settlement agreement did
not extend to claims for damages not reimbursed by their
insurance.
In September 2014, Cutler filed a second motion for
summary judgment, limited to the Worrells. Cutler noted that
the Worrells did not purchase their home directly from Cutler.
According to Cutler, the absence of privity between the Worrells
and Cutler extinguished the Worrells’ claims. The trial court
granted Cutler’s motion on this ground and dismissed the
Worrells’ claims with prejudice.
Worrell v. The Cutler Group, 263 EDA 2015, 125 A.3d 451 (Pa. Super.
filed July 16, 2015) (unpublished memorandum at 1-3) (internal citations to
the record omitted). Following the order entering summary judgment, the
Worrells filed an appeal to this Court. In our July 16, 2015 memorandum,
we quashed the appeal because the order from which the Worrells appealed
did not dispose of all claims and all parties, and was, therefore, not a final
order. Id. at 6.
Subsequently, on July 21, 2015, each remaining party, aside from the
Worrells, discontinued their suits against Cutler, and the December 22, 2014
order became final. As the only plaintiffs remaining, the Worrells filed a
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notice of appeal on July 30, 2015. Both the Worrells and the trial court
complied with Pa.R.A.P. 1925.
On appeal, the Worrells raise one issue for this Court’s consideration:
Whether the Trial Court Committed an Error of Law in Granting
[Cutler’s] Motion for Summary Judgment and Dismissing Count
XIX of [the Worrells’] Amended Complaint asserting a cause of
action for [Cutler’s] Violation of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.
The Worrells’ Brief at 4.1
The procedure for pursuing a motion for summary judgment and the
standard of review of the disposition of said motion are well settled:
Our standard of review of an order granting summary judgment
requires us to determine whether the trial court abused its
discretion or committed an error of law, and our scope of review
is plenary. Petrina v. Allied Glove Corp., 46 A.3d 795, 797–
798 (Pa.Super.2012) (citations omitted). We view the record in
the light most favorable to the nonmoving party, and all doubts
as to the existence of a genuine issue of material fact must be
resolved against the moving party. Barnes v. Keller, 62 A.3d
382, 385 (Pa.Super.2012), citing Erie Ins. Exch. v. Larrimore,
987 A.2d 732, 736 (Pa.Super.2009) (citation omitted). Only
where there is no genuine issue as to any material fact and it is
clear that the moving party is entitled to a judgment as a matter
of law will summary judgment be entered. Id. The rule
governing summary judgment has been codified at Pennsylvania
Rule of Civil Procedure 1035.2, which states as follows.
Rule 1035.2. Motion
After the relevant pleadings are closed, but within
such time as not to unreasonably delay trial, any
____________________________________________
1
The Worrells do not appeal the dismissal of any other count in their
complaint.
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party may move for summary judgment in whole or
in part as a matter of law
(1) whenever there is no genuine issue
of any material fact as to a necessary
element of the cause of action or defense
which could be established by additional
discovery or expert report, or
(2) if, after the completion of discovery
relevant to the motion, including the
production of expert reports, an adverse
party who will bear the burden of proof
at trial has failed to produce evidence of
facts essential to the cause of action or
defense which in a jury trial would
require the issues to be submitted to a
jury.
Pa.R.C.P. 1035.2.
Where the non-moving party bears the burden of proof on
an issue, he may not merely rely on his pleadings or answers in
order to survive summary judgment. Babb v. Ctr. Cmty.
Hosp., 47 A.3d 1214, 1223 (Pa.Super.2012) (citations omitted),
appeal denied, 65 A.3d 412 (Pa.2013). Further, failure of a non-
moving party to adduce sufficient evidence on an issue essential
to his case and on which he bears the burden of proof
establishes the entitlement of the moving party to judgment as a
matter of law. Id.Thus, our responsibility as an appellate court is to
determine whether the record either establishes that
the material facts are undisputed or contains
insufficient evidence of facts to make out a prima
facie cause of action, such that there is no issue to
be decided by the fact-finder. If there is evidence
that would allow a fact-finder to render a verdict in
favor of the non-moving party, then summary
judgment should be denied.
Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898
(Pa.Super.2011), quoting Jones v. Levin, 940 A.2d 451, 452-
454 (Pa.Super.2007) (internal citations omitted).
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Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013) (internal
quotation marks omitted).
We next observe that a private cause of action is explicitly authorized
by the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73
P.S. § 201-1 et seq. Section 201-9.2 provides, in relevant part, as follows:
§ 201-9.2. Private actions
(a) Any person who purchases or leases goods or services
primarily for personal, family or household purposes and thereby
suffers any ascertainable loss of money or property, real or
personal, as a result of the use or employment by any person of
a method, act or practice declared unlawful by section 31 of this
act, may bring a private action to recover actual damages or one
hundred dollars ($100), whichever is greater. The court may, in
its discretion, award up to three times the actual damages
sustained, but not less than one hundred dollars ($100), and
may provide such additional relief as it deems necessary or
proper. The court may award to the plaintiff, in addition to other
relief provided in this section, costs and reasonable attorney
fees.
1
73 P.S. § 201-3.
73 P.S. § 201-9.2(a). Section 201-3 cross references clause 4 of section
201-2 that defines unfair methods of competition and unfair or deceptive
acts or practices. See 73 P.S. § 201-2(4).
Additionally, we point out that:
The UTPCPL is Pennsylvania’s consumer protection law and seeks
to prevent unfair methods of competition and unfair or deceptive
acts or practices in the conduct of any trade or commerce. The
purpose of the UTPCPL is to protect the public from unfair or
deceptive business practices. Our Supreme Court has stated
courts should liberally construe the UTPCPL in order to effect the
legislative goal of consumer protection. The UTPCPL provides a
private right of action for anyone who suffers any ascertainable
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loss of money or property as a result of an unlawful method, act
or practice.
Fazio v. Guardian Life Ins. Co. of America, 62 A.3d 396, 405 (Pa. Super.
2012) (citations omitted). “To bring a private cause of action under the
UTPCPL, a plaintiff must show that he justifiably relied on the defendant’s
wrongful conduct or representation and that he suffered harm as a result of
that reliance.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425,
438 (Pa. 2004).
In the Worrells’ amended complaint they alleged that Cutler engaged
in the following unfair or deceptive trade practices:
134. Due to the defective conditions set forth [in the complaint,
Cutler] has violated the Pennsylvania Unfair Trade Practices and
Consumer Protection Law, in that [Cutler]:
a. represented that goods or services have
sponsorship, approval, characteristics, ingredients,
uses, benefits, or quantities that they do not have;
b. represented that goods or services are of a
particular standard, quality or grade when they were
another;
c. failed to comply with the terms of a written
guarantee or warranty given to the buyer at, prior
to, or after a contract for the purchases of goods or
services; and
d. made improvements on tangible, real or personal
property, of a nature or quality inferior to or below
the standard of that agreed to in writing.
The Worrells’ Amended Complaint, 2/25/11, at ¶ 134; see also generally
73 P.S. § 201-2(4)(v), (vii), (xiv), (xvi).
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Here, the trial court thoroughly addressed the issue on appeal in its
order granting Cutler’s motion for summary judgment:
Finally, Count XIX of the Amended Complaint alleges a
violation of the Unfair Trade Practices and Consumer Protection
Law, 73 P.S. §§ 201-1 et seq. (UTPCPL). Unfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce as defined in 73 P.S. § 201-2
of the UTPCPL is unlawful. 73 P.S. § 201-3. “Unfair methods of
competition” and “unfair or deceptive acts or practices” are
defined under 73 P.S. § 201-2 and encompass 21 different types
of conduct. Anyone who purchases goods or services for
personal, family or household purposes and suffers any
ascertainable loss of money, property, real or personal, as a
result of the use or employment of a method, act or practice
declared unlawful by 73 P.S. § 201-3, as defined in 73 P.S. §
201-2, may bring a private action to recover actual damages or
$100, whichever is greater. 73 P.S. § 201-9.2(a). In order to
be successful on a claim under the UTPCPL, a plaintiff must
prove that the defendant engaged in an “unfair method of
competition” or “unfair or deceptive acts or practice” as defined
in the UTPCPL and that the plaintiff suffered harm as a result of
that conduct. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d
425, 438 (Pa. 2004).
The intent of the UTPCPL is to enhance the protection of
the public from unfair and deceptive trade practices. Gabriel v.
O’Hara, 368 Pa.Super. 383, 388 & n.6, 534 A.2d 488, 491 & n.6
(1987). The prevailing intent of the UTPCPL is to prevent fraud
and the law should be liberally construed so as to serve that
purpose. Gabriel, at 388, 534 A.2d at 491. There is no strict
technical requirement that there be privity between the party
suing and party being sued in an action under the UTPCPL.
Valley Forge Towers Smith Condominium v. Ron-Ike Foam
Insulators, Inc., 393 Pa.Super. 339, 348, 574 A.2d 641, 645
(1990).
In Valley Forge Towers, a roofing repair contractor entered
into a contract with a condominium association to repair their
roof. The contract specified that the roofing membrane would be
manufactured by Mameco. After the roof was completed,
Mameco provided a ten year warranty directly to the
condominium association. After two years, the roof began to
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leak. Neither Mameco nor the contractor honored the warranty
and the condominium association brought an action under the
UTPCPL against the roofer and Mameco.
The Superior Court permitted the claim under the UTPCPL
to go forward against Mameco despite the fact that the
condominium association did not have a contract directly with
Mameco. The Superior Court opined that based upon the
contract between the roofer and the condominium association,
Mameco had “unequivocal notice” that the condominium
association was the actual intended beneficiary of the warranty.
Valley Forge Towers, at 346, 574 A.2d at 646.
A contractor may be sued for fraud in absence of
strict privity when the third party was “specifically
intended” to rely upon the fraudulent conduct or
when the reasonable reliance of a third party on the
fraudulent conduct was “specially foreseeable”.
Valley Forge Towers, at 349, 574 A.2d at 646, citing Woodward
v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301, 312-316 (1988).
Mameco issued the warranty directly to the condominium
association and privity would not be necessary to allow the
condominium association to sustain an action against Mameco
for damages in tort asserting fraud. Valley Forge Towers, at 349
-50, 574 A.2d at 646.
Unlike Valley Forge Towers, there is no evidence of record
at bar to suggest that The Cutler Group had “unequivocal notice”
that the Worrells were the intended beneficiaries of the
warranty. There is no evidence of record that the Worrells were
“specifically intended” to rely upon the alleged fraudulent
conduct of The Cutler Group. In fact, the Worrells failed to make
any allegation of fraud on the part of The Cutler Group. The
allegations contained in paragraph 134 of the Amended
Complaint focus on representations and warranties given to the
Kings, the original purchasers of the home. Absent any
allegation of fraudulent conduct on the part of The Cutler Group
directly involving the Worrells, this claim cannot go forward.
Trial Court Order, 12/22/14, at 3-4 n.1.
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We agree with the trial court. There is no evidence that the Worrells
were promised anything or detrimentally relied upon any representations
made by Cutler. The Worrells were strangers to the contract between Cutler
and the original purchasers. Cutler had no notice of the Worrells as
subsequent purchasers. Moreover, while the Worrells argue that it was
foreseeable that the house would be resold by the original purchasers, 2 such
a construct is true of all goods capable of being transferred to a subsequent
purchaser. The Worrells’ interpretation goes beyond the liberal
interpretation that we are to give UTPCPL; the Worrells were never
“specially intended” or “specially foreseeable” beneficiaries as described in
Valley Forge Towers. The Worrells were ordinary subsequent purchasers
to whom Cutler made no representations. Under the facts presented here,
to conclude that Cutler is liable to the Worrells, subsequent purchasers who
were strangers to the contract between Cutler and the original purchaser,
could place Cutler in a position of warrantor to all subsequent purchasers.
Valley Forge Towers does not support the Worrells’ argument that they
were entitled to bring a private claim under the UTPCPL because the Worrells
were not specially foreseeable.3
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2
The Worrells’ Brief at 10.
3
We also distinguish Woodward v. Dietrich, 548 A.2d 301 (Pa. Super.
1988), a case upon which Valley Forge Towers relies. In that case, the
Woodwards filed a civil complaint against Smith, a sewer installer, and the
(Footnote Continued Next Page)
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Valley Forge Towers provides that while strict privity is not a
prerequisite, the use of the words “specially intended” or “specially
foreseeable” reveal that one must be more than an ordinary subsequent
purchaser. Thus, pursuant to Valley Forge Towers, we conclude that the
UTPCPL is not to be read so expansively that it could be construed to hold
manufacturers liable to subsequent purchasers absent the special
_______________________
(Footnote Continued)
Dietrichs, the homeowners/sellers, alleging causes of action for intentional,
negligent and/or unintentional misrepresentations and breach of warranty in
connection with the sale of a house. Woodward, 548 A.2d at 303. The
Woodwards purchased the home from the Dietrichs and two years later the
basement flooded. Id. In their complaint, “[t]he Woodwards alleged that
their basement had been flooded and damaged two years after they
purchased their home from the Dietrichs because either or both of the
defendants (the Dietrichs or Smith) had fraudulently misrepresented and
concealed the fact that the grey water sewage sewer connection had not
been completed by Smith in the manner indicated in the township records
and communicated to the Woodwards by the Dietrichs during their
negotiations relating to their purchase of the Dietrichs’ residence.” Id. The
Woodwards relied on those representations. Id. at 303, 310. The trial court
granted the preliminary objections filed by defendants the Dietrichs and
Smith and dismissed the complaint. Id. at 304. This Court reversed and
reinstated the complaint finding that, while there was no privity, a
subsequent purchaser’s reliance on the representations made by the seller
and documents recorded in the township regarding sewer installation in the
home was specially foreseeable. Id. at 310 (emphasis added). In the
case at bar, no such representations were made to the Worrells, and there
was nothing specially foreseeable about the Worrells’ subsequent purchase
of the house. Furthermore, we note that Woodward dealt with claims of
fraudulent misrepresentation and concealment, not the UTPCPL directly.
Thus, Woodward is distinguishable.
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relationship discussed above.4
After review, we discern no error of law or abuse of discretion in the
trial court’s ruling in this matter. Accordingly, we affirm the order granting
summary judgment in favor of Cutler.
Order affirmed.
Justice Fitzgerald Concurs in the Result in this Memorandum.
Judge Mundy files a Dissenting Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/18/2016
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4
As this Court has previously stated:
Particular care must be taken that what is being sought is not, in
the words of Justice Cardozo, ‘liability in an indeterminate
amount, for an indeterminate time to an indeterminate class.’
Woodward, 548 A.2d at 303 (quoting Mill-Mar, Inc. v. Statham, 420
A.2d 548, 551, (Pa. Super. 1980) (quoting Ultramares Corp. v. Touche,
255 N.Y. 170, 178, 174 N.E. 441, 444 (1931)).