Zajick
v. Cutler Group – Superior Court – August 31, 2017
There
was “no evidence” that homeowner “justifiably relied on representations” from
builder regarding construction on the specific home or alleged defective
stucco, “as is required to bring a privarte cause of action under Pennsylvania’s
Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73 P.S. §201-2,
et seq.
Plaintiff
homeowner never had any communication with builder about the home. Homeowner claims were based solely in reliance
on builder’s “reputation and general
statements from a sales rep. about homes in the same development. Builder constructed home in 2003, sold it to
initial buyer, who sold it to Plaintiff.
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, and it was not a factor
in this case. Valley Forge Towers Smith Condominium v. Ron-Ike Foam Insulators,
Inc., 574 A.2d 641, 647 (Pa. Super. 1990). Rather, the trial court granted summary
judgment after concluding that Appellant “failed to establish any
representations made by [builder] that rise to the level of representations
upon which reasonable justifiable reliance is foreseeable.”
In
Adams v. Hellings Builders, Inc., 146 A.3d 795, 801 (Pa. Super. 2016), the
court held that strict technical privity 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.” In that case, the home did not comply with the
stucco standards which were set out in the specific written contract between
builder and initial homeowner, who then sold to plaintiffs. Plaintiff there alleged 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. The plaintiffs alleged that they had
justifiably relied on this sales agreement when they decided to purchase the
home. The court determined that those
facts were sufficient upport 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, plaintiff here did not produce any evidence that builder made
representations about the specific home at issue or the alleged defective
stucco to her or the previous purchasers. In fact, hhomeowner conceded “she
never had any communication with builder regarding this home prior to
purchasing it from the initial buyer. Rather,,
plaintiff here
relied
on (1) the “reputation” of the builder as an “experienced, reliable, reputable
builder of custom homes[;]” (2) the experience homeowner nt had in purchasing
and inhabiting her previous home, which was built by same builder and did not
exhibit latent construction defects; and (3) “the representations of builder’s sales
representative as to the construction and quality of the homes in the the same
development as the home at issue, when homeowner was in the process of
purchasing her previous home directly from Cutler and toured homes there.
The
court held that “there is no legal basis
to allow [homeowner’s] claim to move forward based solely on her reliance on builder’s reputation and general statements from a
sales representatives about homes in the same development. Since homeowner
failed to establish that builder 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 builder.
