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Michael and Deborah Conway, H/W v. the Cutler Group

November 5, 2012

MICHAEL AND DEBORAH CONWAY, H/W APPELLANTS
v.
THE CUTLER GROUP, INC. D/B/A THE DAVID CUTLER GROUP, INC. APPELLEE



Appeal from the Order Entered February 15, 2012 In the Court of Common Pleas of Bucks County Civil Division at No(s): 2011-05465

The opinion of the court was delivered by: Mundy, J.:

J-A25017-12

BEFORE: MUSMANNO, J., MUNDY, J., and McEWEN, P.J.E.

OPINION BY

Appellants, Michael and Deborah Conway (the Conways), appeal from the February 15, 2012 order, granting the preliminary objections filed by Appellee, The Cutler Group, Inc. (Builder), and dismissing their complaint. After careful review, we reverse and remand for further proceedings.

We summarize the relevant factual and procedural history of this case as follows. In September 2003, Builder constructed a home for David and Holly Fields (the Fields) on Lot 33 of the Estates of Warwick Lea subdivision in Jamison, Pennsylvania. Conways' Complaint, at ¶ 8, 9. The Conways purchased said home from the Fields in June 2006. Id. at ¶ 8. In April 2008, the Conways discovered water infiltration around the windows of their master bedroom. Id. at ¶ 10. The Conways retained the Falcon Group, an engineering and architecture firm to assess the water infiltration problems.

Id. at ¶ 13. Mark McCann of the Falcon Group inspected the Conways' home and prepared a report in which he concluded that the home suffered from several defects. These defects included that the roof eave to wall junctures did not have the proper "kick-out" flashing, there were insufficient sealed expansion joints, there was a lack of expansion or control joints, a lack of weep screed, and the stucco improperly stopped too tight relative to head flashings located above various windows and doors. Id. at ¶ 14; see also Conways' Complaint, Exhibit A, at 5-10. McCann concluded that the best course of action for the home long term would be "a complete stripping off of the entire home ...." Conways' Complaint, Exhibit A, at 11.

On June 20, 2011, the Conways filed a one count complaint against Builder asserting a breach of the implied warranty of habitability. The Conways did not name the Fields in their complaint. Nor did the Conways assert any claim regarding breach of contract. Builder filed preliminary objections on August 4, 2011. Builder's preliminary objections asserted, "as a matter of law, the implied warranty of habitability only extends from the builder to the initial third-party purchaser." Builder's Preliminary Objections, 8/4/11, at ¶ 5. In addition, Builder asserted that even if the implied warranty of habitability did extend beyond the initial buyer, the Conways failed to plead that any of the alleged defects rendered their home unfit to live in. Id. at ¶ 13. As a result, pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), Builder requested that the trial court dismiss the Conways' complaint with prejudice because the Conways "cannot plead a cognizable cause of action against [Builder] for breach of the implied warranty of habitability ...." Id. at ¶ 6, 13. On February 15, 2012, the trial court entered an order granting Builder's preliminary objections and dismissing the Conways' complaint with prejudice. Trial Court Order, 2/15/12, at 1. On February 27, 2012, the Conways' filed a motion for reconsideration, which was denied on March 20, 2012. On March 15, 2012, the Conways filed a timely notice of appeal.*fn1

On appeal, the Conways raise two issues for our consideration.

1. Whether the [t]rial [c]court erred by dismissing

[the Conways]' [c]omplaint on the grounds that only the initial purchaser of a home from the builder/vendor may maintain a cause of action for breach of the implied warranty of habitability against [Builder], and that [the Conways] could not maintain such an action because they bought the home from previous homeowners and not directly from [Builder ?]

2. Whether the [t]rial [c]court erred by dismissing

[the Conways]' [c]omplaint alleging breach of implied warranty of habitability for [the Conways]' failure to plead that they retained a third-party company to inspect their home prior to purchase, or to plead that the construction defects rendered their home uninhabitable, or to otherwise plead the cause of action of breach of implied warranty of ...


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