United States District Court, W.D. Pennsylvania
DORIS POLANSKY, an adult individual and TIMOTHY POLANSKY, her husband, Plaintiffs,
VAIL HOMES, LLC, a Maryland limited liability Company, and MOUNTAINEER LOG AND SIDING COMPANY, INC., a Maryland Corporation; CHRISTOPHER MEERSCHAERT; TIMOTHY MEERSCHAERT, Defendants. MOUNTAINEER LOG AND SIDING COMPANY, INC. a Maryland corporation, Cross-Claim Plaintiff,
VAIL HOMES, LLC, Cross-Claim Defendant.
REPORT AND RECOMMENDATION RE: ECF NO. 79
MAUREEN P. KELLY, Chief Magistrate Judge.
Pending before the Court is the "Motion for Partial Dismissal of Plaintiffs' Third Amended Complaint or, in the Alternative, Motion for Summary Judgment, " (ECF No. 79) filed on behalf of Defendant Mountaineer Log and Siding Company, Inc. For the following reasons, it is respectfully recommended that the motion be GRANTED IN PART AND DENIED IN PART.
A. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Doris and Timothy Polansky, husband and wife, commenced this action with a Complaint seeking damages arising out of the construction of a home designed by Defendant Mountaineer Log and Siding Company, Inc. ("Mountaineer") and built by Defendant Vail Homes LLC ("Vail Homes"). Plaintiffs allege that as a result of Mountaineer's defective design and Vail Homes' shoddy construction, water was caused to dangerously pool on an improperly sloped rear deck providing ingress and egress to the home. Plaintiffs allege that inevitably, these conditions created a hazard, resulting in Doris Polansky's serious injury in a fall from the deck.
With relevance to the pending Motion to Dismiss, Plaintiffs, in the Third Amended Complaint, allege three causes of action against Mountaineer for Negligence (Count III), Loss of Consortium (Count IV), and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Count VIII).
Plaintiffs' claim under the Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa.C.S. §§ 201, et seq., is predicated upon Mountaineer's alleged misrepresentations through its agent and/or employee Jack Barnhardt, relating to the competency, experience and/or workmanship of Vail Homes, as well as representations disparaging the competency, experience and workmanship of the builder that Plaintiffs originally intended to use, Robert Metz. (Third Amended Complaint at ¶¶ 75-84).
Plaintiffs allege that these representations and statements were made to induce Plaintiffs to use Vail Homes, as part of a scheme by which Mountaineer's agent, Jack Barnhardt, could collect a "referral fee" from Vail Homes. Plaintiffs allege that in reliance upon the misrepresentations and as a direct result of this "fraudulent and/or deceptive" conduct, they suffered damages by selecting Vail Homes as their builder.
In the Motion to Dismiss, Mountaineer challenges Plaintiffs' reliance upon the alleged representations, pointing to the express language of the Purchase Contract entered into between Mountaineer and Plaintiffs. The General Terms and Conditions of the Purchase Contract specifically provide, in pertinent part:
10. This agreement is a "materials only" package. It does not include labor, construction, foundation work and/or finishing work. The Purchaser understands and agrees that the investigation and selection of the builder(s) and/or construction contractor(s) is solely the decision of the Purchaser. Notwithstanding any oral and/or written representation to the contrary, Mountaineer does not recommend any particular builder(s), contractor(s) or sub-contractor(s), nor should any oral or written representation by Mountaineer relating to the competency, experience and/or workmanship of any builder, contractor and/or sub-contractor be relied upon by the Purchaser in the selection of a builder and/or contractor. It is further understood and agreed that any Builders List provided by Mountaineer and/or any other oral or written opinion and/or statement by Mountaineer relating to any builder and/or contractor is provided by Mountaineer solely as a courtesy to Purchaser and should not be relied upon by Purchaser.
11. The Purchase Contract, any attachments and/or riders thereto and these General Terms and Conditions together constitute the entire understanding of the parties hereto and are intended to supersede all prior agreements, understandings and representations, written or oral, with respect thereto. This agreement shall not be amended, altered or changed except by a written agreement signed by the parties thereto.
Mountaineer contends that in light of the express provisions of the Purchase Contract, Plaintiffs cannot prove justifiable reliance upon its alleged wrongful conduct as required for a UTPCPL claim. Accordingly, Mountaineer seeks the dismissal of the ...