J. A10002/17
2017 PA Super 285
KAREN ZAJICK, IN HER OWN RIGHT : IN THE SUPERIOR COURT OF
AND AS ASSIGNEE OF ROBERT AND : PENNSYLVANIA
ARLENE SANTHOUSE, :
APPELLANT :
v. :
:
THE CUTLER GROUP, INC. :
:
:
: No. 1343 EDA 2016
Appeal from the Order Entered April 18, 2016
In the Court of Common Pleas of Montgomery County
Civil Division at No(s): 2012-17179
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
OPINION BY DUBOW, J.: FILED AUGUST 31, 2017
Appellant, Karen Zajick, appeals from the April 18, 2016 Order entered
in the Court of Common Pleas of Montgomery County which granted
summary judgment in favor of Appellee, The Cutler Group, Inc (“Cutler”).
Upon careful review, we conclude that there is no evidence that Appellant
justifiably relied on representations from Cutler regarding the construction of
Appellant’s specific home or alleged defective stucco, as is required to bring
a private cause of action under Pennsylvania’s Unfair Trade Practices and
Consumer Protection Law (“UTPCPL”), 73 P.S. §201-2, et seq. Accordingly,
we affirm.
In 2003, Cutler built a stucco home at 7 Landon Way, Exton,
Pennsylvania, and sold it to Robert and Arlene Santhouse (“the
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Santhouses”). In December 2008, Appellant purchased the home from the
Santhouses after having the property professionally inspected.
Over two years later, in March 2011, Appellant noticed leaks in the
home, notified Cutler, and demanded that Cutler fix the leaks. In June
2011, Appellant hired a stucco inspector to conduct a stucco inspection and
moisture analysis of the home. The inspector concluded that the home’s
stucco system was defective and recommended stucco replacement.
On August 17, 2012, Appellant filed a Complaint bringing claims
against Cutler for breach of contract, breach of express and implied
warranties, and violations of Pennsylvania’s UTPCPL, seeking damages
arising from the purchase of the home.
Cutler subsequently filed a Motion for Judgment on the Pleadings
seeking dismissal of all four causes of action. On June 3, 2015, the trial
court granted the Motion in part, and dismissed all claims except the UTPCPL
claim. The trial court denied the Motion as it pertained to the UTPCPL claim
based on representations from Appellant at argument that discovery was
ongoing and that she would ultimately obtain the evidence necessary to
support her UTPCPL cause of action.
On November 9, 2015, after the discovery deadline, Cutler filed a
Motion for Summary Judgment. In response, Appellant filed an Answer
admitting that she never had any communication with Cutler regarding the
home. Additionally, Appellant submitted an affidavit stating that in making
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the decision to purchase the home, she relied upon Cutler’s reputation in the
community, her own personal experience purchasing and inhabiting another
home built by Cutler, and general representations made by one of Cutler’s
sales representatives several years earlier when Appellant was purchasing a
previous home directly from Cutler. Appellant did not provide the trial court
with any representations from Cutler regarding the specific home at issue or
the stucco system used to construct the home. On April 18, 2016, after oral
argument, the trial court granted the Motion and dismissed Appellant’s only
remaining claim for violations of UTPCPL.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issue on appeal: “Whether the trial
court committed an error of law in granting [Cutler]’s Motion for Summary
Judgment and dismissing Appellant’s Complaint asserting a cause of action
for [Cutler]’s Violation of the Pennsylvania [UTPCPL], 73 P.S. § 201-1 et
seq.” Appellant’s Brief at 4 (some capitalization omitted).
We review a trial court’s grant of summary judgment for an error of
law or an abuse of discretion. Summers v. Certainteed Corp., 997 A.2d
1152, 1159 (Pa. 2010). A trial court may grant summary judgment “only in
those cases where the record clearly demonstrates that there is no genuine
issue of material fact and that the moving party is entitled to judgment as a
matter of law.” Summers, supra at 1159 (citation and quotation omitted);
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see also Pa.R.C.P. No. 1035.2. Whether any genuine issues of material fact
exist is a question of law and, therefore, subject to a de novo standard of
review. DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 587 (2013). This
Court must view the record in the light most favorable to the non-moving
party, and any doubt regarding the existence of a genuine issue of material
fact must be resolved against the moving party. Toy v. Metropolitan Life
Ins. Co., 928 A.2d 186, 195 (Pa. 2007). The failure of a non-moving party
to present sufficient evidence on an issue essential to his case, when the
non-moving party bears the burden of proof, establishes the entitlement of
the moving party to judgment as a matter of law. Cigna Corp. v. Exec.
Risk Indem., Inc., 111 A.3d 204, 210 (Pa. Super. 2015). Finally, a trial
court may only grant summary judgment in cases that are clear and free
from all doubt. Toy, supra at 195.
Instantly, Appellant challenges the court’s dismissal of her UTPCPL
claim. See Appellant’s Brief at 10. The UTPCPL is Pennsylvania's consumer
protection law, which serves the purpose of protecting the public from unfair
or deceptive business practices. DeArmitt, supra at 591. The UTPCPL
explicitly authorizes a private cause of action for anyone who purchases
goods primarily for personal, family, or household purposes and “suffers any
ascertainable loss of money or property” as a result of any person employing
an unlawful method, act, or practice. 73 P.S. §201-9.2(a).
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In order 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) (emphasis added). Strict technical privity is not required to bring
a cause of action under the UTPCPL. Valley Forge Towers Smith
Condominium v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 647 (Pa.
Super. 1990).
Appellant argues that because the UTPCPL does not require privity of
contract for a claimant to assert a cause of action against the builder and
seller of residential real estate, the trial court erred in dismissing the claim
on this basis. See Appellant’s Brief at 10.
Contrary to Appellant’s characterization, the trial court did recognize
that Appellant could have standing to bring a claim against Cutler under the
UTPCPL despite not having privity of contract. See Trial Court Opinion,
dated 10/21/16, at 4. Notwithstanding, the trial court granted summary
judgment after concluding that Appellant “failed to establish any
representations made by [Cutler] that rise to the level of representations
upon which reasonable justifiable reliance is foreseeable.” See id. at 5. We
agree.
In Adams v. Hellings Builders, Inc., 146 A.3d 795 (Pa. Super.
2016), a case cited by Appellant, this Court held that strict technical privity
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is not required to assert a cause of action under the UTPCPL, rather the
“focus is on whether reliance on alleged misrepresentations was specially
forseeable.” Id. at 801.
In Adams, the plaintiffs purchased a home and subsequently brought
a claim under the UTPCPL, alleging that the sales agreement between the
builder and the initial purchasers represented that the home would include a
three-coat stucco system according to International Residential Code
Standards. However, upon inspection by plaintiff’s expert, the stucco
system did not comply with those standards. Id. The plaintiffs alleged that
they had justifiably relied on this sales agreement when they decided to
purchase the home. Id. On appeal, this Court determined that these facts
were sufficient to support a private cause of action under the UTPCPL
because the complaint alleged that the builder made representations about
the home and stucco system in the sales agreement, and it was foreseeable
that plaintiffs would justifiably rely on those representations. Adams,
supra at 801-802.
In contrast to the plaintiffs in Adams, Appellant did not produce any
evidence that Cutler made representations about the specific home at issue
or the alleged defective stucco to her or the previous purchasers. In fact,
Appellant concedes “she never had any communication with Cutler regarding
this home prior to purchasing it from the Santhouses.” Plaintiff’s Answer to
Defendant’s Motion for Summary Judgment at ¶20 (emphasis added).
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Rather, Appellant’s affidavit submitted in opposition to Cutler’s Motion for
Summary Judgment states that Appellant relied on (1) the “reputation” of
Cutler as an “experienced, reliable, reputable builder of custom homes[;]”
(2) the experience Appellant had in purchasing and inhabiting her previous
home, which was built by Cutler and did not exhibit latent construction
defects; and (3) “the representations of Wendy Dunlop, who was employed
as a sales representative by [Cutler] as to the construction and quality of the
homes in the Reserve at Malvern[,]” the same development as the home at
issue, when Appellant was in the process of purchasing her previous home
directly from Cutler and toured homes there. Affidavit of Karen Zajick, filed
12/3/15.
There is no legal basis to allow Appellant’s claim to move forward
based solely on her reliance on Cutler’s reputation and general statements
from a sales representatives about homes in the same development.
Since Appellant failed to establish that Cutler made any
representations about her specific home or the alleged defective stucco, the
trial court properly found that she failed as a matter of law to present
evidence that she “justifiably relied” on “representations” of Cutler.
Accordingly, we conclude that the trial court did not abuse its discretion or
err as a matter of law when it granted summary judgment in favor of Cutler.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/31/2017
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