THE COVE AT ST. CHARLES CONDOMINIUM ASSOCIATION, Appellant
JWEST CORP., JAWEST CORP. F/K/A JWEST CORP., J. WEST CORPORATION, AND FREDERICK J. BAEHR, III A/K/A/ FRITZ BAEHR T/A F.J. BAEHR ARCHITECTS, Appellees
Appeal from the Order Entered February 6, 2013, in the Court of Common Pleas of Allegheny County, Civil Division at No(s): GD 11-012910
BEFORE: PANELLA, ALLEN, and STRASSBURGER [*] , JJ.
The Cove at St. Charles Condominium Association (the Association) appeals from the grant of summary judgment against it and in favor of JWest Corp., JAWEST Corp., and JWest Corporation (JWest). Upon review, we affirm.
The situation that gave rise to the instant matter, as set forth in the complaint, is as follows. The Condominium consists of three separate buildings and a total of 23 individual units. All of the units were sold to individual owners between April 2002 and March 2006. In early 2008, one of the units at the Condominium was sold from its original buyer to a new buyer. The new buyer conducted a home inspection, removed a portion of fiber cement siding on the ground level porch privacy screen, and discovered wood rot caused by water infiltration in the wall and column structures. The Condominium's architect then inspected the unit, observed the wood rot, and JWest repaired it. JWest then sent a letter to the secretary of the Association about the situation. JWest performed some additional work to repair the areas discovered to have wood rot in the spring of 2008. These areas included the decks connected to individual units, and are defined as common elements of the Condominium for which the Association is responsible for maintenance and repair.
In 2011, the Association entered into an agreement with a contractor to perform maintenance and repair work at the Condominium. That contractor alerted the Association that there was serious deterioration of wood that was hidden from view by wood trim and fiber cement siding, and advanced that the deterioration presented a safety hazard.
The Association gave JWest and Baehr notice of the latent construction defects, but JWest and Baehr refused to correct the problems themselves or pay for their correction. Thus, the Association filed the instant complaint against Baehr and JWest in August 2011 asserting causes of action for breach of contract, breach of warranty, negligence and misrepresentation against JWest, as well as negligence against Baehr.
Both JWest and Baehr filed preliminary objections to the complaint.Notably, as to the Association's complaint against JWest, JWest asserted that the trial court should dismiss the tort claims under the gist of the action doctrine. In an order dated September 28, 2011, the trial court sustained JWest's preliminary objections and dismissed the negligence and misrepresentation counts of the Association's complaint.
After the pleadings were closed and discovery completed, JWest filed a motion for summary judgment against the Association. In that motion, JWest asserted that there was a two year warranty for these defects pursuant to the agreements of sale signed by individual unit owners upon purchasing these units. The agreements of sale between JWest (Declarant) and each Purchaser provided the following:
a) At Closing Declarant will deliver to Purchaser Declarant's Unit Owners' Limited Warranty. A copy of the Unit Owners' Limited Warranty is contained in the Public Offering Statement supplied or to be supplied to Purchaser. Purchaser agrees to be bound by the terms and conditions of the Unit Owners' Limited Warranty.
b) Declarant will also provide a limited warranty on structural defects and common elements which is required by statute. The details of this warranty are set forth in the Unit Owner's Limited Warranty which is contained in the Public Offering Statement supplied or to be supplied to Purchaser.
c) THE FOREGOING WARRANTIES ARE EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BY WAY OF ILLUSTRATION AND NOT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, HABITABILITY, WORKMANSHIP, OR OF FITNESS FOR A PARTICULAR PURPOSE. DECLARANT NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OR USE OF THE UNIT SOLD HEREUNDER, AND THERE ARE NO AGREEMENTS OR WARRANTIES, EITHER ORAL OR WRITTEN, COLLATERAL TO OR AFFECTING THIS AGREEMENT.
d) DECLARANT SPECIFICALLY EXCLUDES ALL WARRANTIES OF MERCHANTABILITY, HABITABILITY, WORKMANSHIP, AND FITNESS FOR A PARTICULAR PURPOSE AND NEITHER MAKES OR ADOPTS ANY WARRANTY, EXPRESS OR IMPLIED, AS THE ITEMS OF PERSONAL PROPERTY BEING SOLD TO PURCHASER PURSUANT TO THIS AGREEMENT (OR AS TO ANY "CONSUMER PRODUCT" AS SUCH TERM IS DEFINED IN 15 U.S.C. SECTION 2301(1), WHICH MAY BE CONTAINED IN THE UNIT), EXCEPT THAT NO DISCLAIMER IS INTENDED AS TO ANY WARRANTY REQUIRED BY MUNICIPAL STATUTES, REGULATION OR ORDINANCES. WHEN NEW CONSUMER PRODUCTS ARE COVERED BY A ...