J-A11029-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GLENN AND WENDY DIEHL, H/W AND                   IN THE SUPERIOR COURT OF
DANIEL AND SUSAN SCOTT, H/W AND                        PENNSYLVANIA
GAYATHRI AND SRIRAM KRISHNAN, H/W
AND RASHMI RADHAKRISHNAN AND
LISA PARVISKHAN AND JOSEPH AND
ANN WORRELL, H/W,

                       v.

THE CUTLER GROUP, INC.,

APPEAL OF: JOSEPH AND ANN WORRELL,
H/W

                                                      No. 2302 EDA 2015


               Appeal from the Order Entered December 22, 2014
                In the Court of Common Pleas of Chester County
                       Civil Division at No(s): 2010-08568


BEFORE: SHOGAN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED JULY 18, 2016

       Appellants Joseph and Ann Worrell (“the Worrells”), husband and wife,

appeal from the order entered on December 22, 2014, in the Chester County

Court of Common Pleas that granted summary judgment in favor of

Appellee, The Cutler Group, Inc. (“Cutler”). After careful review, we affirm.

       A prior panel of this Court summarized the relevant facts and

procedural history of this matter as follows:


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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            The Worrells, along with several other groups of plaintiffs,1
     commenced this litigation in 2010, asserting breach of contract,
     breach of express warranty, breach of implied warranty, and
     violation of the Unfair Trade Practices and Consumer Protection
     Law (UTPCPL), 73 P.S. §§ 201-1-201-9.3.2.2 According to the
     plaintiffs, Cutler constructed their homes using an inferior stucco
     cladding system, which permitted moisture infiltration resulting
     in structural damage to their homes.
           1
             Plaintiffs included the following: Glenn and Wendy
           Diehl, h/w; Daniel and Susan Scott, h/w; Gayathri
           and Sriram Krishnan, h/w; Rashmi Radhakrishnan
           and Lisa Parviskhan; and Joseph and Ann Worrell,
           h/w.
           2
             In February 2011, plaintiffs filed an amended
           complaint. In it, the Worrells abandoned their claim
           for breach of contract.

           In July 2011, the trial court sustained certain preliminary
     objections filed by Cutler, dismissing the Worrells’ claims with
     prejudice.    The Worrells filed a motion for reconsideration.
     Thereafter, in January 2013, the trial court granted
     reconsideration, reversed its prior determination, and overruled
     the preliminary objections, thus reinstating the Worrells’ claims.

           Throughout    this   period,     settlement  negotiations
     proceeded. In March and December 2013, Cutler submitted
     settlement conference memoranda. From these, we infer that
     the Scotts, the Diehls, as well as Mr. Radhakrishnan and
     Ms. Parviskhan agreed to settlement terms with Cutler. Thus, in
     January 2014, the remaining plaintiffs were the Worrells and the
     Krishnans.3
           3
               The March 2013 memorandum states explicitly
           that the Scotts settled with Cutler. This is confirmed
           by the Chester County docket, which indicates that,
           in September 2012, this matter was discontinued as
           to plaintiffs Daniel and Susan Scott. The March 2013
           memorandum also sets forth the terms of settlement
           offers extended to the Diehls, Mr. Radhakrishnan,
           and Ms. Parviskhan, but suggests the offers were
           rejected.     Nevertheless,   the   December      2013
           memorandum does not identify these plaintiffs and

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J-A11029-16


            omits reference to pending settlement negotiations
            with them, focusing instead on the Worrells and the
            Krishnans. Unfortunately, however, the docket is
            silent regarding any disposition of the claims alleged
            by     the    Diehls,   Mr.     Radhakrishnan      and
            Ms. Parviskhan.

            In April 2014, Cutler filed a motion for summary judgment,
      limited to the Worrells, asserting their claims were precluded by
      a settlement agreement reached in a parallel case brought by
      the Worrells’ insurance carrier.      The trial court denied the
      motion, noting that the terms of the settlement agreement did
      not extend to claims for damages not reimbursed by their
      insurance.

            In September 2014, Cutler filed a second motion for
      summary judgment, limited to the Worrells. Cutler noted that
      the Worrells did not purchase their home directly from Cutler.
      According to Cutler, the absence of privity between the Worrells
      and Cutler extinguished the Worrells’ claims. The trial court
      granted Cutler’s motion on this ground and dismissed the
      Worrells’ claims with prejudice.

Worrell v. The Cutler Group, 263 EDA 2015, 125 A.3d 451 (Pa. Super.

filed July 16, 2015) (unpublished memorandum at 1-3) (internal citations to

the record omitted). Following the order entering summary judgment, the

Worrells filed an appeal to this Court. In our July 16, 2015 memorandum,

we quashed the appeal because the order from which the Worrells appealed

did not dispose of all claims and all parties, and was, therefore, not a final

order. Id. at 6.

      Subsequently, on July 21, 2015, each remaining party, aside from the

Worrells, discontinued their suits against Cutler, and the December 22, 2014

order became final.   As the only plaintiffs remaining, the Worrells filed a




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notice of appeal on July 30, 2015.             Both the Worrells and the trial court

complied with Pa.R.A.P. 1925.

       On appeal, the Worrells raise one issue for this Court’s consideration:

       Whether the Trial Court Committed an Error of Law in Granting
       [Cutler’s] Motion for Summary Judgment and Dismissing Count
       XIX of [the Worrells’] Amended Complaint asserting a cause of
       action for [Cutler’s] Violation of the Pennsylvania Unfair Trade
       Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq.

The Worrells’ Brief at 4.1

       The procedure for pursuing a motion for summary judgment and the

standard of review of the disposition of said motion are well settled:

       Our standard of review of an order granting summary judgment
       requires us to determine whether the trial court abused its
       discretion or committed an error of law, and our scope of review
       is plenary. Petrina v. Allied Glove Corp., 46 A.3d 795, 797–
       798 (Pa.Super.2012) (citations omitted). We view the record in
       the light most favorable to the nonmoving party, and all doubts
       as to the existence of a genuine issue of material fact must be
       resolved against the moving party. Barnes v. Keller, 62 A.3d
       382, 385 (Pa.Super.2012), citing Erie Ins. Exch. v. Larrimore,
       987 A.2d 732, 736 (Pa.Super.2009) (citation omitted). Only
       where there is no genuine issue as to any material fact and it is
       clear that the moving party is entitled to a judgment as a matter
       of law will summary judgment be entered.           Id.   The rule
       governing summary judgment has been codified at Pennsylvania
       Rule of Civil Procedure 1035.2, which states as follows.

              Rule 1035.2. Motion

              After the relevant pleadings are closed, but within
              such time as not to unreasonably delay trial, any

____________________________________________


1
   The Worrells do not appeal the dismissal of any other count in their
complaint.



                                           -4-
J-A11029-16


          party may move for summary judgment in whole or
          in part as a matter of law

                (1) whenever there is no genuine issue
                of any material fact as to a necessary
                element of the cause of action or defense
                which could be established by additional
                discovery or expert report, or

                (2) if, after the completion of discovery
                relevant to the motion, including the
                production of expert reports, an adverse
                party who will bear the burden of proof
                at trial has failed to produce evidence of
                facts essential to the cause of action or
                defense which in a jury trial would
                require the issues to be submitted to a
                jury.

     Pa.R.C.P. 1035.2.

           Where the non-moving party bears the burden of proof on
     an issue, he may not merely rely on his pleadings or answers in
     order to survive summary judgment. Babb v. Ctr. Cmty.
     Hosp., 47 A.3d 1214, 1223 (Pa.Super.2012) (citations omitted),
     appeal denied, 65 A.3d 412 (Pa.2013). Further, failure of a non-
     moving party to adduce sufficient evidence on an issue essential
     to his case and on which he bears the burden of proof
     establishes the entitlement of the moving party to judgment as a
     matter of law. Id.

          Thus, our responsibility as an appellate court is to
          determine whether the record either establishes that
          the material facts are undisputed or contains
          insufficient evidence of facts to make out a prima
          facie cause of action, such that there is no issue to
          be decided by the fact-finder. If there is evidence
          that would allow a fact-finder to render a verdict in
          favor of the non-moving party, then summary
          judgment should be denied.

     Id., citing Reeser v. NGK N. Am., Inc., 14 A.3d 896, 898
     (Pa.Super.2011), quoting Jones v. Levin, 940 A.2d 451, 452-
     454 (Pa.Super.2007) (internal citations omitted).

                                  -5-
J-A11029-16


Cadena v. Latch, 78 A.3d 636, 638-639 (Pa. Super. 2013) (internal

quotation marks omitted).

     We next observe that a private cause of action is explicitly authorized

by the Unfair Trade Practices and Consumer Protection Law (“UTPCPL”), 73

P.S. § 201-1 et seq. Section 201-9.2 provides, in relevant part, as follows:

     § 201-9.2. Private actions

     (a) Any person who purchases or leases goods or services
     primarily for personal, family or household purposes and thereby
     suffers any ascertainable loss of money or property, real or
     personal, as a result of the use or employment by any person of
     a method, act or practice declared unlawful by section 31 of this
     act, may bring a private action to recover actual damages or one
     hundred dollars ($100), whichever is greater. The court may, in
     its discretion, award up to three times the actual damages
     sustained, but not less than one hundred dollars ($100), and
     may provide such additional relief as it deems necessary or
     proper. The court may award to the plaintiff, in addition to other
     relief provided in this section, costs and reasonable attorney
     fees.
           1
               73 P.S. § 201-3.

73 P.S. § 201-9.2(a).    Section 201-3 cross references clause 4 of section

201-2 that defines unfair methods of competition and unfair or deceptive

acts or practices. See 73 P.S. § 201-2(4).

     Additionally, we point out that:

     The UTPCPL is Pennsylvania’s consumer protection law and seeks
     to prevent unfair methods of competition and unfair or deceptive
     acts or practices in the conduct of any trade or commerce. The
     purpose of the UTPCPL is to protect the public from unfair or
     deceptive business practices. Our Supreme Court has stated
     courts should liberally construe the UTPCPL in order to effect the
     legislative goal of consumer protection. The UTPCPL provides a
     private right of action for anyone who suffers any ascertainable

                                    -6-
J-A11029-16


      loss of money or property as a result of an unlawful method, act
      or practice.

Fazio v. Guardian Life Ins. Co. of America, 62 A.3d 396, 405 (Pa. Super.

2012) (citations omitted).    “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).

      In the Worrells’ amended complaint they alleged that Cutler engaged

in the following unfair or deceptive trade practices:

      134. Due to the defective conditions set forth [in the complaint,
      Cutler] has violated the Pennsylvania Unfair Trade Practices and
      Consumer Protection Law, in that [Cutler]:

            a. represented that goods or services have
            sponsorship, approval, characteristics, ingredients,
            uses, benefits, or quantities that they do not have;

            b. represented that goods or services are of a
            particular standard, quality or grade when they were
            another;

            c. failed to comply with the terms of a written
            guarantee or warranty given to the buyer at, prior
            to, or after a contract for the purchases of goods or
            services; and

            d. made improvements on tangible, real or personal
            property, of a nature or quality inferior to or below
            the standard of that agreed to in writing.

The Worrells’ Amended Complaint, 2/25/11, at ¶ 134; see also generally

73 P.S. § 201-2(4)(v), (vii), (xiv), (xvi).


                                      -7-
J-A11029-16


     Here, the trial court thoroughly addressed the issue on appeal in its

order granting Cutler’s motion for summary judgment:

            Finally, Count XIX of the Amended Complaint alleges a
     violation of the Unfair Trade Practices and Consumer Protection
     Law, 73 P.S. §§ 201-1 et seq. (UTPCPL). Unfair methods of
     competition and unfair or deceptive acts or practices in the
     conduct of any trade or commerce as defined in 73 P.S. § 201-2
     of the UTPCPL is unlawful. 73 P.S. § 201-3. “Unfair methods of
     competition” and “unfair or deceptive acts or practices” are
     defined under 73 P.S. § 201-2 and encompass 21 different types
     of conduct.      Anyone who purchases goods or services for
     personal, family or household purposes and suffers any
     ascertainable loss of money, property, real or personal, as a
     result of the use or employment of a method, act or practice
     declared unlawful by 73 P.S. § 201-3, as defined in 73 P.S. §
     201-2, may bring a private action to recover actual damages or
     $100, whichever is greater. 73 P.S. § 201-9.2(a). In order to
     be successful on a claim under the UTPCPL, a plaintiff must
     prove that the defendant engaged in an “unfair method of
     competition” or “unfair or deceptive acts or practice” as defined
     in the UTPCPL and that the plaintiff suffered harm as a result of
     that conduct. Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d
     425, 438 (Pa. 2004).

           The intent of the UTPCPL is to enhance the protection of
     the public from unfair and deceptive trade practices. Gabriel v.
     O’Hara, 368 Pa.Super. 383, 388 & n.6, 534 A.2d 488, 491 & n.6
     (1987). The prevailing intent of the UTPCPL is to prevent fraud
     and the law should be liberally construed so as to serve that
     purpose. Gabriel, at 388, 534 A.2d at 491. There is no strict
     technical requirement that there be privity between the party
     suing and party being sued in an action under the UTPCPL.
     Valley Forge Towers Smith Condominium v. Ron-Ike Foam
     Insulators, Inc., 393 Pa.Super. 339, 348, 574 A.2d 641, 645
     (1990).

           In Valley Forge Towers, a roofing repair contractor entered
     into a contract with a condominium association to repair their
     roof. The contract specified that the roofing membrane would be
     manufactured by Mameco.         After the roof was completed,
     Mameco provided a ten year warranty directly to the
     condominium association. After two years, the roof began to

                                   -8-
J-A11029-16


     leak. Neither Mameco nor the contractor honored the warranty
     and the condominium association brought an action under the
     UTPCPL against the roofer and Mameco.

           The Superior Court permitted the claim under the UTPCPL
     to go forward against Mameco despite the fact that the
     condominium association did not have a contract directly with
     Mameco.     The Superior Court opined that based upon the
     contract between the roofer and the condominium association,
     Mameco had “unequivocal notice” that the condominium
     association was the actual intended beneficiary of the warranty.
     Valley Forge Towers, at 346, 574 A.2d at 646.

           A contractor may be sued for fraud in absence of
           strict privity when the third party was “specifically
           intended” to rely upon the fraudulent conduct or
           when the reasonable reliance of a third party on the
           fraudulent conduct was “specially foreseeable”.

     Valley Forge Towers, at 349, 574 A.2d at 646, citing Woodward
     v. Dietrich, 378 Pa.Super. 111, 548 A.2d 301, 312-316 (1988).
     Mameco issued the warranty directly to the condominium
     association and privity would not be necessary to allow the
     condominium association to sustain an action against Mameco
     for damages in tort asserting fraud. Valley Forge Towers, at 349
     -50, 574 A.2d at 646.

            Unlike Valley Forge Towers, there is no evidence of record
     at bar to suggest that The Cutler Group had “unequivocal notice”
     that the Worrells were the intended beneficiaries of the
     warranty. There is no evidence of record that the Worrells were
     “specifically intended” to rely upon the alleged fraudulent
     conduct of The Cutler Group. In fact, the Worrells failed to make
     any allegation of fraud on the part of The Cutler Group. The
     allegations contained in paragraph 134 of the Amended
     Complaint focus on representations and warranties given to the
     Kings, the original purchasers of the home.            Absent any
     allegation of fraudulent conduct on the part of The Cutler Group
     directly involving the Worrells, this claim cannot go forward.

Trial Court Order, 12/22/14, at 3-4 n.1.




                                    -9-
J-A11029-16


       We agree with the trial court. There is no evidence that the Worrells

were promised anything or detrimentally relied upon any representations

made by Cutler. The Worrells were strangers to the contract between Cutler

and the original purchasers.           Cutler had no notice of the Worrells as

subsequent purchasers.           Moreover, while the Worrells argue that it was

foreseeable that the house would be resold by the original purchasers, 2 such

a construct is true of all goods capable of being transferred to a subsequent

purchaser.        The    Worrells’    interpretation   goes   beyond   the   liberal

interpretation that we are to give UTPCPL; the Worrells were never

“specially intended” or “specially foreseeable” beneficiaries as described in

Valley Forge Towers. The Worrells were ordinary subsequent purchasers

to whom Cutler made no representations. Under the facts presented here,

to conclude that Cutler is liable to the Worrells, subsequent purchasers who

were strangers to the contract between Cutler and the original purchaser,

could place Cutler in a position of warrantor to all subsequent purchasers.

Valley Forge Towers does not support the Worrells’ argument that they

were entitled to bring a private claim under the UTPCPL because the Worrells

were not specially foreseeable.3

____________________________________________


2
    The Worrells’ Brief at 10.
3
  We also distinguish Woodward v. Dietrich, 548 A.2d 301 (Pa. Super.
1988), a case upon which Valley Forge Towers relies. In that case, the
Woodwards filed a civil complaint against Smith, a sewer installer, and the
(Footnote Continued Next Page)


                                          - 10 -
J-A11029-16


      Valley Forge Towers provides that while strict privity is not a

prerequisite, the use of the words “specially intended” or “specially

foreseeable” reveal that one must be more than an ordinary subsequent

purchaser. Thus, pursuant to Valley Forge Towers, we conclude that the

UTPCPL is not to be read so expansively that it could be construed to hold

manufacturers     liable     to   subsequent        purchasers   absent   the   special




                       _______________________
(Footnote Continued)

Dietrichs, the homeowners/sellers, alleging causes of action for intentional,
negligent and/or unintentional misrepresentations and breach of warranty in
connection with the sale of a house. Woodward, 548 A.2d at 303. The
Woodwards purchased the home from the Dietrichs and two years later the
basement flooded. Id. In their complaint, “[t]he Woodwards alleged that
their basement had been flooded and damaged two years after they
purchased their home from the Dietrichs because either or both of the
defendants (the Dietrichs or Smith) had fraudulently misrepresented and
concealed the fact that the grey water sewage sewer connection had not
been completed by Smith in the manner indicated in the township records
and communicated to the Woodwards by the Dietrichs during their
negotiations relating to their purchase of the Dietrichs’ residence.” Id. The
Woodwards relied on those representations. Id. at 303, 310. The trial court
granted the preliminary objections filed by defendants the Dietrichs and
Smith and dismissed the complaint. Id. at 304. This Court reversed and
reinstated the complaint finding that, while there was no privity, a
subsequent purchaser’s reliance on the representations made by the seller
and documents recorded in the township regarding sewer installation in the
home was specially foreseeable. Id. at 310 (emphasis added). In the
case at bar, no such representations were made to the Worrells, and there
was nothing specially foreseeable about the Worrells’ subsequent purchase
of the house. Furthermore, we note that Woodward dealt with claims of
fraudulent misrepresentation and concealment, not the UTPCPL directly.
Thus, Woodward is distinguishable.



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relationship discussed above.4

       After review, we discern no error of law or abuse of discretion in the

trial court’s ruling in this matter. Accordingly, we affirm the order granting

summary judgment in favor of Cutler.

       Order affirmed.

       Justice Fitzgerald Concurs in the Result in this Memorandum.

       Judge Mundy files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/18/2016




____________________________________________


4
    As this Court has previously stated:

       Particular care must be taken that what is being sought is not, in
       the words of Justice Cardozo, ‘liability in an indeterminate
       amount, for an indeterminate time to an indeterminate class.’

Woodward, 548 A.2d at 303 (quoting Mill-Mar, Inc. v. Statham, 420
A.2d 548, 551, (Pa. Super. 1980) (quoting Ultramares Corp. v. Touche,
255 N.Y. 170, 178, 174 N.E. 441, 444 (1931)).
