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Roberts v. NVR, Inc.

United States District Court, W.D. Pennsylvania

June 15, 2015

NVR, INC., trading as RYAN HOMES, Defendant.



Plaintiff, Jeffrey Roberts, brings this action against Defendant, NVR, Inc., trading as Ryan Homes, alleging state law claims of breach of contract, breach of warranty and violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. §§ 201.1 to 201.9.3 (UTPCPL), arising out of the allegedly defective construction of a home.

Presently pending before the Court is a partial motion to dismiss, in which Defendant contends that Counts II (breach of warranty) and Count III (UTPCPL) should be dismissed. For the reasons that follow, the motion will be denied.


On or about July 31, 2013, Plaintiff and NVR entered into a Purchase Agreement for a New Home to be constructed at 223 Taylor Ridge Lane, Mars, Pennsylvania 16046 (“the Home”). On or about February 14, 2014, the parties closed on the Home. At or prior to the closing, Plaintiff was provided with Ryan Homes’ “Homeowners Documents” and “Homeowners Guide” which contain representations and warranties. (Am. Compl. ¶ 3 & Exs. 1-2.)[1] Immediately after closing on the Home, Plaintiff moved into the Home and continues to reside there. Since occupying the Home, Plaintiff has noticed numerous defects and deficiencies in its construction. He indicates that he informed NVR about these problems and that it promised to repair some items and affirmatively indicated that it would not fix certain defects in the walls of the Home. It has not repaired all of the items that it agreed to repair and the Home has cosmetic and possibly structural damage. (Am. Compl. ¶¶ 4-8.)

Plaintiff states that, at all relevant times, NVR was responsible for and controlled the means and methods of the construction and the repairs to the Home, that its efforts to repair the construction defects have exacerbated the defective conditions or created additional defective conditions, and that the defective construction and observable construction defects will result in significant cost to repair and has resulted in diminished value of the Home. (Am. Compl. ¶¶ 9-11.)

Procedural History

On March 19, 2015, Plaintiff filed this action in the Court of Common Pleas of Allegheny County, Pennsylvania. Count I alleged a claim of negligence. Count II alleged a claim of breach of warranty. Count III alleged a claim under the UTPCPL. Count IV alleged a claim of breach of contract.

On April 13, 2015, Defendant removed the action to this Court on the basis of diversity jurisdiction in that: Plaintiff is a citizen of Pennsylvania, NVR is a Virginia corporation with its principal place of business in Reston, Virginia and the amount in controversy exceeds the sum of $75, 000.00, exclusive of interest and costs. (Notice of Removal ¶¶ 4-7.)[2] 28 U.S.C. § 1332(a).

On April 17, 2015, Defendant filed a partial motion to dismiss, seeking dismissal of Counts I, II and III (ECF No. 3). On May 7, 2015, Plaintiff filed an Amended Complaint. The negligence claim was deleted and the other claims were reordered as follows: Count I alleges breach of contract, Count II alleges breach of warranty and Count III is asserted under the UTPCPL.

On May 15, 2015, Defendant filed a partial motion to dismiss, seeking dismissal of Counts II and III of the Amended Complaint (ECF No. 11). On June 4, 2015, Plaintiff filed a brief in opposition (ECF No. 14). Defendant filed a reply brief on June 9, 2015 (ECF No. 15).

Standard of Review

The Supreme Court has issued two decisions that pertain to the standard of review for a motion to dismiss for failure to state a claim upon which relief could be granted under Federal Rule of Civil Procedure 12(b)(6). The Court held that a complaint must include factual allegations that “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[W]ithout some factual allegation in the complaint, a claimant cannot satisfy the requirement that he or she provide not only ‘fair notice’ but also the ‘grounds’ on which the claim rests.” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). In determining whether a plaintiff has met this standard, a court must reject legal conclusions unsupported by factual allegations, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements;” “labels and conclusions;” and “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556 U.S. at 678 (citations omitted). Mere “possibilities” of misconduct are insufficient. Id. at 679. The Court of Appeals has summarized the inquiry as follows:

To determine the sufficiency of a complaint, a court must take three steps. First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1947, 173 L.Ed.2d 868 (2009). Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 1950. Third, “whe[n] there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.” Id. This means that our inquiry is normally broken into three parts: (1) identifying the elements of the claim, (2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the well-pleaded components of the complaint and evaluating whether all of the elements identified in part one of the inquiry are sufficiently alleged.

Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

“Generally, in ruling on a motion to dismiss, a district court relies on the complaint, attached exhibits, and matters of public record.” Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007) (citation omitted). The Complaint attaches the Homeowners Guide and the warranties, both of which may be considered in reviewing the pending motion to dismiss.

Defendant argues that: 1) Count II should be dismissed because implied warranties have been disclaimed and he fails to identify any specific express warranty terms that have been breached; and 2) Count III should be dismissed on the grounds that it is barred by the economic loss ...

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