RICHARD POLLOCK, AN ADULT INDIVIDUAL, CHERYL POLLOCK, AN ADULT INDIVIDUAL, PAUL L. KUTCHER, AN ADULT INDIVIDUAL, AND CYNTHIA P. KUTCHER, AN ADULT INDIVIDUAL, Appellants
NATIONAL FOOTBALL LEAGUE AND DALLAS COWBOYS FOOTBALL CLUB, LTD.
from the Order Entered September 27, 2016 in the Court of
Common Pleas of Allegheny County Civil Division at No(s):
BEFORE: OLSON, STABILE, and STRASSBURGER, [*] JJ.
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). We affirm.
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.
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.
Trial Court Opinion, 9/27/2016, at 1-2 (some capitalization
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.
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
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
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).
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 ...