KAREN ZAJICK, IN HER OWN RIGHT AND AS ASSIGNEE OF ROBERT AND ARLENE SANTHOUSE, APPELLANT
THE CUTLER GROUP, INC.
from the Order Entered April 18, 2016 In the Court of Common
Pleas of Montgomery County Civil Division at No(s):
BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.
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.
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.
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.
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
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.
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
timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
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
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.
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.
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 ...