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Zajick v. The Cutler Group, Inc.

Superior Court of Pennsylvania

August 31, 2017

KAREN ZAJICK, IN HER OWN RIGHT AND AS ASSIGNEE OF ROBERT AND ARLENE SANTHOUSE, APPELLANT
v.
THE CUTLER GROUP, INC.

         Appeal from the Order Entered April 18, 2016 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2012-17179

          BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

          OPINION

          DUBOW, J.

         Appellant, Karen Zajick, appeals from the April 18, 2016 Order entered in the Court of Common Pleas of Montgomery County which granted summary judgment in favor of Appellee, The Cutler Group, Inc ("Cutler"). Upon careful review, we conclude that there is no evidence that Appellant justifiably relied on representations from Cutler regarding the construction of Appellant's specific home or alleged defective stucco, as is required to bring a private cause of action under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 P.S. §201-2, et seq. Accordingly, we affirm.

         In 2003, Cutler built a stucco home at 7 Landon Way, Exton, Pennsylvania, and sold it to Robert and Arlene Santhouse ("the Santhouses"). In December 2008, Appellant purchased the home from the Santhouses after having the property professionally inspected.

         Over two years later, in March 2011, Appellant noticed leaks in the home, notified Cutler, and demanded that Cutler fix the leaks. In June 2011, Appellant hired a stucco inspector to conduct a stucco inspection and moisture analysis of the home. The inspector concluded that the home's stucco system was defective and recommended stucco replacement.

         On August 17, 2012, Appellant filed a Complaint bringing claims against Cutler for breach of contract, breach of express and implied warranties, and violations of Pennsylvania's UTPCPL, seeking damages arising from the purchase of the home.

         Cutler subsequently filed a Motion for Judgment on the Pleadings seeking dismissal of all four causes of action. On June 3, 2015, the trial court granted the Motion in part, and dismissed all claims except the UTPCPL claim. The trial court denied the Motion as it pertained to the UTPCPL claim based on representations from Appellant at argument that discovery was ongoing and that she would ultimately obtain the evidence necessary to support her UTPCPL cause of action.

         On November 9, 2015, after the discovery deadline, Cutler filed a Motion for Summary Judgment. In response, Appellant filed an Answer admitting that she never had any communication with Cutler regarding the home. Additionally, Appellant submitted an affidavit stating that in making the decision to purchase the home, she relied upon Cutler's reputation in the community, her own personal experience purchasing and inhabiting another home built by Cutler, and general representations made by one of Cutler's sales representatives several years earlier when Appellant was purchasing a previous home directly from Cutler. Appellant did not provide the trial court with any representations from Cutler regarding the specific home at issue or the stucco system used to construct the home. On April 18, 2016, after oral argument, the trial court granted the Motion and dismissed Appellant's only remaining claim for violations of UTPCPL.

         Appellant timely appealed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

         Appellant raises the following issue on appeal: "Whether the trial court committed an error of law in granting [Cutler]'s Motion for Summary Judgment and dismissing Appellant's Complaint asserting a cause of action for [Cutler]'s Violation of the Pennsylvania [UTPCPL], 73 P.S. § 201-1 et seq." Appellant's Brief at 4 (some capitalization omitted).

         We review a trial court's grant of summary judgment for an error of law or an abuse of discretion. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). A trial court may grant summary judgment "only in those cases where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Summers, supra at 1159 (citation and quotation omitted); see also Pa.R.C.P. No. 1035.2. Whether any genuine issues of material fact exist is a question of law and, therefore, subject to a de novo standard of review. DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 587 (2013). This Court must view the record in the light most favorable to the non-moving party, and any doubt regarding the existence of a genuine issue of material fact must be resolved against the moving party. Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 195 (Pa. 2007). The failure of a non-moving party to present sufficient evidence on an issue essential to his case, when the non-moving party bears the burden of proof, establishes the entitlement of the moving party to judgment as a matter of law. Cigna Corp. v. Exec. Risk Indem., Inc., 111 A.3d 204, 210 (Pa. Super. 2015). Finally, a trial court may only grant summary judgment in cases that are clear and free from all doubt. Toy, supra at 195.

         Instantly, Appellant challenges the court's dismissal of her UTPCPL claim. See Appellant's Brief at 10. The UTPCPL is Pennsylvania's consumer protection law, which serves the purpose of protecting the public from unfair or deceptive business practices. DeArmitt, supra at 591. The UTPCPL explicitly authorizes a private cause of action for anyone who purchases goods primarily for personal, family, or household purposes and "suffers any ascertainable loss of money or property" as a result of any person employing an unlawful method, act, or practice. 73 P.S. §201-9.2(a).

         In order to bring a private cause of action under the UTPCPL, "a plaintiff must show that he justifiably relied on the defendant's wrongful conduct or representation and that he suffered harm as a result of that reliance." Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa. 2004) (emphasis added). Strict technical privity is not required to bring a cause of action under the UTPCPL. Valley ...


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