United States District Court, W.D. Pennsylvania
Bissoon United States District Judge
Motions to Dismiss (Docs. 17 & 20) will be granted in
part and denied in part, as follows.
have brought this diversity action, seeking recovery in
connection with Defendant NVR's construction of their
new, custom home. See generally Am. Compl. (Doc. 12)
(hereinafter, “the Complaint”). Plaintiffs have
identified a litany of grievances, and they seek recovery
under the construction/sale agreement and their limited home
warranty. See Id. Among their various difficulties,
a number of Plaintiffs' windows have leaked, and they
have joined the window manufacturer, Ply Gem, as a second
Defendant. The parties are well-acquainted with the
circumstances surrounding, and allegations in, the Complaint.
Rather than recount them, the Court will proceed directly to
NVR's arguments based on the contractual one-year statute
of limitations are denied, to this extent. Although the
contract purports to waive the “discovery rule, ”
it is silent regarding another well-established equitable
doctrine in Pennsylvania, the “repair doctrine.”
Amodeo v. Ryan Homes, Inc., 595 A.2d 1232, 1235-39
(Pa. Super. 1991); accord N. Amer. Commcns,, Inc. v.
InfoPrint Solutions Co., 817 F.Supp.2d 623, 633 &
n.4 (W.D. Pa. 2011) (the repair doctrine, as applied in
Pennsylvania, “is a common-law equitable estoppel of
the statute of limitations for breach of warranty where the
seller attempts to make repairs and represents that such
repairs will cure the defect”) (citation omitted).
Tolling will attach where repairs were attempted;
representations were made that the repairs would cure the
defect(s); and the plaintiff relied on such representations.
Amodeo at 1237.
as true the factual allegations in the Complaint, and reading
all reasonable inferences in Plaintiffs' favor, at least
some of their grievances plausibly may satisfy the
repair-doctrine requirements. See generally Am.
Compl. (discussing in detail Plaintiffs' numerous,
ongoing communications with Defendants regarding
deficiencies, efforts at repair and assurances that certain
problems had been/would be fixed). In fact, the circumstances
alleged practically beg its recognition:
[T]he adoption of this theory of estoppel is correct as a
matter of public policy[, ] in that a party who in good faith
postpones filing suit in reliance upon the other party's
assurances that repairs will be effective and litigation
unnecessary should not be faulted for such reliance. . . .
[C]ourt[s] must consider doctrines such as this[, ] which
will facilitate the attempted resolution of disputes out of
court and will not close the courts to parties who have
failed in their good faith efforts to resolve such disputes.
Amodeo at 1239.
addition to the contract, the Court presently has no reason
to doubt that the repair-doctrine extends to Plaintiffs'
warranty claims. InfoPrint, 817 F.Supp.2d at 633
(the repair doctrine addresses “breach of warranty
[claims]”); accord Hrycay v. Monaco Coach
Corp., 2008 WL 1869277, *3 (E.D. Pa. Apr. 28, 2008)
(“even if the [l]imited [w]arranty effectively reduced
the statute of limitations, a question of fact exist[ed] as
to whether the statute of limitations was tolled under
Pennsylvania's repair doctrine”). Additionally,
Defendant's legal analyses conflate the
limitations-issue, as relates to the contract versus the
warranty. Cf. Def. NVR's Br. (Doc. 18) at 6-9
(applying essentially the same analyses to warranty and
contract claims). Although the parties' contract (absent
tolling) may require the filing of suit within one year, it
does not follow that the warranty claims likewise are so
limited. The durational-limits in the warranty (one year, two
years or ten years) contemplate an invocation of the
warranty, not a filing of suit. See Doc. 18-1
at pgs. 60-61 of 62 (“Procedure for Adjudicating
Defendant NVR has not demonstrated that a dismissal of all
contract and warranty claims is appropriate. Defendant Ply
Gem's arguments regarding the warranty claims likewise
are unpersuasive. Ply Gem posits that, in light of
Plaintiffs' allegations regarding NVR's
mishandling/improper installation of the windows, they cannot
proceed under the Ply Gem warranty on the basis of
non-conforming or defective windows. See Def. Ply
Gem's Br. (Doc. 21) at 14. Plaintiffs' allegations
in-the-alternative are obvious enough: they do not know which
Defendant ultimately is responsible, but it must be one or
the other. Ply Gem has identified nothing untoward or
impermissible regarding this approach.
rulings having been made, the Court declines to parse
Plaintiffs' claims on a grievance-by-grievance basis.
Plaintiffs initiated this removed-action in Pennsylvania
state court, and the original tribunal applies/applied a
different pleading standard (fact-pleading). Having carried
that practice into federal court, Plaintiffs' pleadings
are far more detailed than this tribunal, and its applicable
laws, would require. Allowing the practice to cause a
degeneration into endless digressions would be inconsistent
with the Rules and laws of this Court, not to mention the
interests of judicial economy. The Court, herein, has
established the governing legal principles, and any
dissection of the specifics will be reserved for summary
judgment. Defendants' arguments regarding the
measure of available damages likewise are so-reserved.
Compare Def. NVR's Br. (Doc. 18) at 9-12
and Def. Ply Gem's Br. (Doc. 21) at 13-16
(arguing for restrictions on damages) with, e.g.,
Campenella Const. Co., Inc., v. Great Amer. Ins.
Co., 2010 WL 2076089, *4 (E.D. Pa. May 21, 2010)
(“[t]he [c]ourt need not specify on a motion to dismiss
that any particular measure of damages is either improper or
. . . proper, ” and “[t]his issue can be
revisited in a motion for summary judgment or at
to Plaintiffs' tort claims, the Court agrees with
Defendant NVR that such claims are barred under the
gist-of-the-action test. The doctrine “precludes a
party from raising tort claims where the essence of the
[case] actually lies in a contract that governs the
parties' relationship.” Abraham v. Greater New
Castle Cmty. Fed'l Credit Union, 2016 WL 1161217, *2
(W.D. Pa. Mar. 23, 2016) (citation to quoted source omitted).
Its applicability in this case could not be clearer. See,
e.g., Am. Compl. at ¶¶ 129-130 (referencing
“various deficiencies” in connection with
contract and/or warranty, and “breaches” of duty
cannot escape this conclusion through their counsel's
vague reference to “negligence per se”
concepts. Compare Pls.' Opp'n Br. (Doc. 25)
at 5 (“NVR . . . violated the building code, creating
hazards and threats to public safety”) with Rock v.
Voshell, 397 F.Supp.2d 616, 628 (E.D. Pa. 2005)
(gist-of-the-action test, and related economic loss doctrine,
apply with equal force to negligence per se claims).
Plaintiffs cannot properly expand the scope of recovery
though bald incantations of tort law, and Defendant's
Motion to Dismiss, in this regard, is well taken.
same is true regarding Plaintiffs' claims under
Pennsylvania's UTPCPL. First, Defendants are correct that
Plaintiffs have failed to plausibly establish the element of
justifiable reliance. Most of Defendants' purported
misrepresentations have to do with promises made by them
regarding potential remedies for Plaintiffs' various
grievances. See, e.g., Am. Compl. (Doc. 12) at
¶ 135 (alleging that Plaintiffs “reasonably
relied” on inducements and representations regarding
potential fixes). To the extent that Plaintiffs may enjoy
relief in this context, it properly is accounted for through
an application of the repair doctrine. See
discussion supra. Otherwise, counsel's responses
regarding justifiable reliance are pretzel-logic, turning
back-in on the contract and warranty theories. See
Pls.' Opp'n Br. (Doc. 25) at 5 (“any reasonable
person would be justified in relying upon the protections
afforded by [the] warranty”) (emphasis added).
Plaintiffs' UTPCPL claims fail under the same
contract-versus-tort precepts referenced above. See Price
v. Foremost Indus., Inc., 2018 WL 1993378, *5 (E.D. Pa.
Apr. 26, 2018) (“[t]he economic loss doctrine (and its
closely related cousin, the ‘gist of the action'
doctrine) bar claims under the UTPCPL”) (relying on,
among other cases, Werwinski v. Ford Motor Co., 286
F.3d 661 (3d Cir. 2002)). Given the exceedingly close-ties