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Pollock v. National Football League and Dallas Cowboys Football Club, Ltd.

Superior Court of Pennsylvania

June 21, 2017

RICHARD POLLOCK, AN ADULT INDIVIDUAL, CHERYL POLLOCK, AN ADULT INDIVIDUAL, PAUL L. KUTCHER, AN ADULT INDIVIDUAL, AND CYNTHIA P. KUTCHER, AN ADULT INDIVIDUAL, Appellants
v.
NATIONAL FOOTBALL LEAGUE AND DALLAS COWBOYS FOOTBALL CLUB, LTD.

         Appeal from the Order Entered September 27, 2016 in the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-14-004867

          BEFORE: OLSON, STABILE, and STRASSBURGER, [*] JJ.

          OPINION

          STRASSBURGER, J.

         Richard Pollock, Cheryl Pollock, Paul L. Kutcher, and Cynthia P. Kutcher (Plaintiffs, collectively) appeal from the September 27, 2016 order that denied Plaintiffs' motion for leave to file a second amended complaint against the National Football League (the NFL).[1] We affirm.

         The trial court summarized the history of the case as follows.

Plaintiffs are four ticketholders for Super Bowl XLV held in Arlington, Texas, on February 6, 2011. Plaintiffs were among the group of ticketholders who were unable to watch the game from the seats designated on their tickets because these were temporary seats not approved by safety authorities in time for use at the game. No adequate seats were offered to Plaintiffs. This lawsuit arises out of Plaintiffs' being denied access to the seats designated on the tickets and defendants' failure to advise Plaintiffs when they purchased the tickets that they would be receiving temporary seats that did not yet exist and that there was no guarantee that an occupancy permit would be issued by the City of Arlington for these seats prior to the game.
Initially, this lawsuit was commenced in proceedings at Pollock v. National Football League and Dallas Cowboys Football Club, Ltd., [2013 WL 1102823 (W.D.Pa. March 15, 2013), ] filed in the United States District Court for the Western District of Pennsylvania (2:12-cv-130). The initial complaint raised tort claims, including claims based upon the [Unfair Trade Practices and] Consumer Protection Law [(UTPCPL), which allows recovery of treble damages, costs, and attorney fees, 73 P.S. § 201-9.2(a)]. In the initial complaint, Plaintiffs also alleged that their Super Bowl tickets constituted valid, enforceable contracts against the NFL and asserted a claim for a breach of contract based on the NFL's failure to provide the seats designated on the face of the tickets.
Defendants filed a motion to dismiss all of Plaintiffs' tort claims under the Pennsylvania economic loss/gist of the action doctrines. In response to this motion, Plaintiffs amended their complaint to abandon their claim for breach of contract while reasserting their tort claims arising out of the NFL's failure to provide the seating reflected by the tickets. Defendants then filed a motion to dismiss in which defendants contended that all of plaintiffs' claims in their amended complaint (which no longer included breach of contract claims) were barred by the gist of the action/economic loss doctrine notwithstanding Plaintiffs' decision not [to] reassert a breach of contract claim. The district court agreed.
At page 6 of a memorandum order dated March 15, 2013, the district court ruled: "Plaintiffs' claims for negligent misrepresentation (Count II and III) are barred by the gist of the action doctrine because the tort claims are nothing more than a breach of the contractual obligations created by the purchase of the Super Bowl tickets." At page 11, the court ruled: "Plaintiffs' [UTPCPL] and fraudulent inducement claims are barred by the gist of the action doctrine." The court also stated at page 11 that the economic loss doctrine prohibits Plaintiffs from recovering in tort economic losses to which their entitlement flows only from contract.[2]
Defendants also moved for dismissal of the entire action because of Plaintiffs' failure to satisfy the amount in controversy requirement, and the district court ruled that the action must be dismissed for want of jurisdiction given the lack of viable claims to support awards for punitive damages, attorney fees, and triple damages. On appeal, the [Third Circuit] court of appeals agreed that the district court did not err in granting defendants' motion to dismiss for failure to state a claim and defendants' motion to dismiss for lack of jurisdiction. [Pollock v. Nat'l Football League, 553 F.App'x 270 (3rd Cir. 2014).]

Trial Court Opinion, 9/27/2016, at 1-2 (some capitalization altered).

         On March 20, 2014, Plaintiffs transferred the action from federal to state court pursuant to 42 Pa.C.S. § 5103. More than two years passed with no docket activity until Plaintiffs filed a motion for leave to file a second amended complaint. The proposed complaint included three counts: (1) fraudulent or negligent inducement, (2) violation of the UTPCPL, and (3) breach of contract. Motion, 4/4/2016, at Exhibit A. The NFL opposed the motion, claiming that the tort claims were barred by the doctrines of res judicata and collateral estoppel, and that the contract claim was barred by the statute of limitations. Brief in Opposition, 5/17/2016, at 6-13. The trial court denied Plaintiffs' motion by memorandum and order of September 27, 2016. Plaintiffs thereafter timely filed a notice of appeal.

         Plaintiffs present the following questions for this Court's review.

1. Whether a federal district court order, dismissing [Plaintiffs'] tort claims under Fed.R.Civ.P. 12(b)(6) and dismissing the federal court action for want of subject matter jurisdiction and without prejudice to Plaintiffs['] refiling the action in state court as authorized by 42 Pa.C.S. § 5103(b), prohibits [Plaintiffs] from re-filing tort actions and an action for violation of the [UTPCPL] against [the] NFL in state court based on res judicata or collateral estoppel principles?
2. Whether 42 Pa.C.S. § 5103(b) preserves [Plaintiffs'] right to raise the tort claims, claim for violation of the UTPCPL and breach of contract claim against [the] NFL alleged in [Plaintiffs'] proposed second amended complaint after [Plaintiffs'] action has been dismissed by a federal district court for want of subject matter jurisdiction and without prejudice to Plaintiffs refiling the action in state court as authorized by 42 Pa.C.S. § 5103(b)?
3. Whether 42 Pa.C.S. § 5103 is unconstitutionally vague and ambiguous?
4. In the alternative, whether the averments stated in [Plaintiffs'] proposed second amended complaint merely amplify those stated in [their] first amended complaint so as to permit [them] to plead a breach of contract action in [the] proposed second amended complaint?

Plaintiffs' Brief at 3-4 (trial court answers omitted; some capitalization altered).

         We begin our consideration of Plaintiffs' questions with our standard of review.

Our standard of review of a trial court's order denying a plaintiff leave to amend its complaint ... permits us to overturn the order only if the trial court erred as a matter of law or abused its discretion. The trial court enjoys broad discretion to grant or deny a petition to amend. Although the court generally should exercise its discretion to permit amendment, where a party will ...

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