Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

FRANK AND THERESA GABRIEL v. C. HERBERT O'HARA (11/30/87)

filed: November 30, 1987.

FRANK AND THERESA GABRIEL, H/W, APPELLANTS,
v.
C. HERBERT O'HARA, JOSEPH F.X. FASEY REAL ESTATE AND BRIAN P. CLEERE



Appeal from the Order entered September 15, 1986 in the Court of Common Pleas of Philadelphia County, Civil Division, No. 5656 August Term 1982.

COUNSEL

Joseph C. Cascarelli, Philadelphia, for appellants.

Richard J. Raab, Philadelphia, Fasey Real Estate, appellee.

Montemuro, Popovich and Cercone, JJ. Popovich, J., concurs in the result.

Author: Cercone

[ 368 Pa. Super. Page 385]

At issue in this matter is the appropriate statute of limitations for private actions under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (UTPCPL). Act of December 17, 1968, No. 387, as amended 1976, Nov. 24, P.L. 1166, No. 260, § 1, 73 P.S. § 201-1 et seq.

I.

Appellants are individuals and owners of residential property located at 5714 Marshall Street in Philadelphia. The premises were previously owned by appellee. This action arose in connection with the purchase by appellants of the property from appellee.

On or about June 19, 1980, appellants agreed to purchase the premises for the sum of $20,500.00. Appellants subsequently paid the full purchase price and took possession at settlement on August 29, 1980. Shortly after taking possession of the realty, appellants discovered an allegedly substantial defect in the main soil stack pipe from the cellar to the second floor bath of the house and a leak in the rainspout from the front porch of the house into the cellar.

On August 25, 1982, appellants filed a complaint alleging, inter alia, causes of action for breach of the implied warranty of merchantability, breach of contract, and fraudulent misrepresentation. The essence of appellants' assertions were that the existence of the defects constituted a breach of the agreement of sale and that appellee falsely represented the quality of the premises and failed to disclose the existence of the defects. Subsequently, on July 28, 1986, appellants filed a petition for leave to amend their complaint in order to include a claim for violation of the Unfair Trade Practices and Consumer Protection Law. The Court of Common Pleas for Philadelphia County denied appellants' petition by order of September 15, 1986 on the

[ 368 Pa. Super. Page 386]

    grounds that the statute of limitations which governs private civil actions under the UTPCPL had run.*fn1 In its view, appellants' amended cause of action was barred by Pennsylvania's two-year limitations period for fraud,*fn2 rather than the six-year "catchall" limitation period,*fn3 since it was the closest analogy for appellants' statutory claims. The timely appeal of this important question followed.

II.

Initially, we must determine whether the order denying amendment of appellants' complaint is appealable. Pennsylvania Rule of Civil Procedure 1033 provides that "[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party, or amend his pleading." Pa.R.C.P. No. 1033, 42 Pa.C.S.A. Although the decision to grant or deny a petition to amend a pleading is a matter of judicial discretion, we have held that "[a]mendments should be allowed with great liberality at any stage of the case unless they violate the law or prejudice the rights of the opposing party."*fn4 Gutierrez v. Pennsylvania Gas and Water Co.,

[ 368 Pa. Super. Page 387352]

Pa. Super. 282, 286, 507 A.2d 1230, 1232 (1986) (citations omitted).

In Barr v. General Accident Group Ins. Co., 360 Pa. Super. 334, 520 A.2d 485 (1987), we considered the appealability of an order denying amendment of a complaint:

"In ascertaining what is a final appealable order . . . we must look beyond the technical effect of the adjudication to its practical ramification." Praisner v. Stocker, 313 Pa. Super. 332, 459 A.2d 1255 (1983) citing Jackson v. Moultrie, 288 Pa. Super. 252, 431 A.2d 1033 (1981). "The finality of an order is a conclusion which can be reached only after an examination of its ramifications." Praisner, supra, 313 Pa. Superior Ct. at 337, 459 A.2d at 1258, citing Pugar v. Greco, 483 Pa. 68, 394 A.2d 542 (1978). When an Order so restricts the pleader as to virtually put him out of court on the cause of action he seeks to litigate, it is a final appealable Order. Trevellini v. West Realty Co., 289 Pa. Super. 84, 432 A.2d 1062 (1981).

Id., 360 Pa. Superior Ct. at 344, 520 A.2d at 490.

In the case sub judice, the denial of appellants' petition to amend their complaint to include an UTPCPL claim has the effect of putting appellants out of court on a cause of action they seek to litigate. The amendment of appellants' complaint to include a claim for violation of the Unfair Trade Practices and Consumer Protection Law does plead a new cause of action, but also brings forth a consideration of another statute of limitations in addition to the two-year statute of limitation for common law fraud. Thus, if a six-year statute of limitation is allowable for UTPCPL claims, appellants' claim for treble damages and reasonable attorney's fees, although under UTPCPL, would justify an amended complaint pursuant to section 201-9.2(a) of the statute:

Any person who suffers any ascertainable loss of money or property, as a result of the use or employment by any

[ 368 Pa. Super. Page 388]

    person of a method, act or practice declared unlawful by [this act] may bring a private action to recover actual damages or $100, whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than $100, and may provide additional relief as it deems necessary or proper. The court shall award ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.