J-A05037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA STREINER,                               IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellant

                       v.

BAKER RESIDENTIAL OF PENNSYLVANIA,
LLC.,

                            Appellee                  No. 1253 EDA 2015


                   Appeal from the Order Dated April 2, 2015
                In the Court of Common Pleas of Chester County
                     Civil Division at No(s): No. 2013-08762


BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.:                         FILED JUNE 09, 2016

       Appellant Patricia Streiner appeals from the order entered in the Court

of Common Pleas of Chester County granting summary judgment in favor of

Appellee Baker Residential of Pennsylvania, LLC. We affirm.

       The lower court provides an apt summary of case history as follows:

                                 PROCEDURAL HISTORY

       [Appellant] filed her Complaint on December 12, 2013 alleging:
       Count I – Negligent Misrepresentation and Failure to Disclose
       Material Defects; and Count II – Breach of Implied Warranty of
       Habitability, Reasonable Workmanship and Fitness for Particular
       Purpose based on alleged defects in the construction of her
       home.[1] Baker filed its Answer and New Matter on June 6, 2014.
____________________________________________


1
  Specifically, Appellant averred “[s]ince the time of construction, [Appellant]
has become aware of certain structural defects in the Property existing at
the time of settlement including, inter alia, [twelve alleged defects involving
(Footnote Continued Next Page)


*Former Justice specially assigned to the Superior Court.
J-A05037-16


      [Appellant] filed her Answer to Baker’s New Matter on
      September 4, 2014. Baker’s Motion for Summary Judgment
      [attaching its written disclaimer of all implied warranties as
      contained within the parties’ Agreement of Sale] was filed
      November 3, 2014 and [Appellant]’s response was filed on
      December 18, 2014. Both parties filed reply briefs and the Court
      issued the Order which is the subject of this appeal on April 2,
      2015. [Appellant] timely filed her appeal on May 1, 2015.

                                       DISCUSSION

      [Appellant]’s complaint alleges the following: On or about July
      24, 2003, [Appellant] signed an Agreement of Sale (Agreement)
      for the construction of a single-family residence. Settlement on
      the property occurred on or about October 1, 2003. Baker
      (along with co-Defendant Iacoabucci Fortress, LLC) are alleged
      to be the builders. According to the Complaint “[s]ince the time
      of construction, [Appellant]s [sic] have [sic] become aware of
      certain structural defects in the Property existing at the time of
      settlement . . .” The Complaint then proceeds to list various
      alleged defects.      In support of her claim for Negligent
      Misrepresentation, [Appellant] merely asserts that: “[d]espite
      actual knowledge of the failures and omissions of construction
      stated hereinabove and the material defects which such failures
      and omissions constituted, defendants failed to disclose the
      material defects in the Property to [Appellant]s.” [Appellant]
      further alleges that she justifiably relied upon the non-
      disclosure.   In support of her claim for Breach of Implied
      Warranties, [Appellant] merely alleges that the aforementioned
      alleged defects breach the implied warranties of habitability,
      reasonable workmanship and fitness for a particular purpose.

      Paragraph 21 of the Agreement states: “All warranty provisions
      are set forth in the Customer Care Manual delivered to
      [[Appellant]] prior to execution of this Agreement; by execution
      of this Agreement, [[Appellant]] acknowledges receipt, review
                       _______________________
(Footnote Continued)

substandard materials, construction methods and/or application of sealants
that impaired the Property’s ability to repel water properly and,
consequently, caused regular and persistent water infiltration damage to the
Property of at least $90,000.]” Complaint, filed November 8, 2013, at ¶¶
17-20.



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        and acceptance of the terms of said Customer Care Manual. ALL
        OTHER EXPRESS OR IMPLIED WARRANTIES ARE EXCLUDED,
        INCLUDING SPECIFICALLY ANY IMPLIED WARRANTIES OF
        MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
        REASONABLE WORKMANSHIP, OR HABITABILITY.” (emphasis in
        original). In addition, [Appellant] applied for and was provided a
        ten year written warranty (“Home Owner’s Warranty”) from
        Western Pacific Mutual Insurance Company [pursuant to the
        Agreement of Sale]. The application specifically states that
        [Appellant] understands and agrees that this warranty is
        provided by Baker in lieu of all other warranties and that Baker
        “makes no warranty, express or implied as to quality, fitness for
        a particular purpose, merchantability, habitability, or otherwise .
        . . .”[2]

Lower Court Opinion, filed June 29, 2015, at 1-2.3
____________________________________________


2
  Specifically, the Home Owner’s Warranty provides:
      1. One Year Coverage: Your Builder warrants that for a period
          of one (1) year after the Effective Date of Warranty,
          warranted items will function and operate as presented in the
          Warrant Standards of Year 1, Section III. A. Coverage is
          ONLY available where specific Standards and Actions are
          represented in this Limited Warranty. . . .
      2. Two Year Coverage: Your Builder warrants that for a period
          of two (2) years from the Effective Date Of Warranty, specific
          portion of the heating, cooling, ventilating, electrical and
          plumbing systems, as defined in this Limited Warranty, will
          function and operate as presented in the Warranty Standards
          of Years 1 and 2 only, Section III. B. . . .
      3. Ten Year Coverage: Major Structural Defects (MSD) are
          warranted for ten (10) years from the Effective Date of
          Warranty. Your Builder is the Warrantor during Years 1 and 2
          of this Limited Warranty and the Insurer is the Warrantor in
          Years 3 through 10.
The effective date of the Home Owner’s Warranty was October 1, 2003, and
the warranty ran for ten years until September 30, 2013, when it expired.
Appellant filed the present action on December 12, 2013.
3
    Additionally, Paragraph 22 of the Agreement of Sale provides:
        Entire Agreement. This writing contains the entire agreement
        between the parties.       No representation, claim, statement,
(Footnote Continued Next Page)


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J-A05037-16



      In granting Baker’s motion for summary judgment, the lower court

determined that Appellant filed a response resting upon the mere allegations

of her pleadings and had otherwise disclaimed all implied warranties by

virtue of clear and specific language contained in the agreement of sale. The

court opined:

      With regard to Count I, [Appellant], who bears the burden of
      proof, has failed to come forward with any factual evidence to
      support her claim. She has put forth nothing other than the bald
      assertions in the Complaint which have been referenced above.
      With regard to Count II, the clauses waiving the implied
      warranties have been fully set forth above and, despite
      [Appellant]’s arguments to the contrary, do comply with the
      criteria set forth in Tyus v. Resta, 476 A.2d 427 (Pa.Super.
      1984).

Opinion at 4. This timely appeal followed.

      We set forth our standard of review from the grant of summary

judgment:

      A motion for summary judgment should only be granted if there
      is no genuine issue regarding any material fact, and the moving
      party is entitled to judgment as a matter of law. An appellate
                       _______________________
(Footnote Continued)

      advertising, promotional activity, brochure or plan of any kind
      made prior to the date of this Agreement or contemporaneously
      herewith by the Seller or Seller’s agent, representative,
      salesman or officer shall be binding upon the Seller unless fully
      set forth herein. No agent, representative, salesman or officer of
      the parties hereto has the authority to make or has made any
      statement, agreement, representation or contemporaneous
      agreement, oral or written , in connection therewith modifying,
      adding to or changing the terms and conditions set forth herein.
      No dealing between the parties or customers shall be permitted
      to delete, contradict, vary or add to the terms thereof. . . .



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J-A05037-16


     court may reverse an order granting summary judgment where
     there is an error of law or an abuse of discretion. Because the
     question of whether a genuine issue of material fact exists is one
     of law, appellate review is de novo. In undertaking such review,
     the record is viewed in the light most favorable to the non-
     moving party, and all doubts as to whether a genuine issue
     exists are resolved against the moving party.

Smith v. Township of Richmond, 82 A.3d 407, (Pa. 2013) (citation

omitted).

     Appellant first argues that the lower court erred in granting summary

judgment in favor of Baker as to the implied warranty claims because the

latent defects present in her home were not “terms, conditions or features of

the Agreement of Sale between the parties.” Appellant’s brief at 9. Such

latent defects, Appellant maintains, are not the kind that a consumer would

expect in newly constructed home, and they cannot fairly be said, therefore,

to have been contemplated in the implied warranty waiver language present

in the agreement. We disagree.

           Pennsylvania law recognizes an implied warranty of
     habitability in contracts where builders-vendors sell new homes
     to residential purchasers. The implied warranty requires that a
     builder, typically more skilled and experienced in the
     construction field than the purchaser, bear the risk that a home
     he built will be functional and habitable in accordance with
     contemporary and community standards. Although the implied
     warranty may be waived by clear and unambiguous contract
     language, such language must be sufficiently particular to inform
     the home purchaser of the right he or she is waiving.
     Furthermore, the contract must always be construed against the
     builder and in order to exclude warranty coverage for latent
     defects, language of disclaimer must refer to its effect on
     specifically designated, potential latent defects.




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J-A05037-16



Pontiere v. Dinert, 627 A.2d 1204, 1206 (Pa.Super. 1993) (internal

quotations and citations omitted).

       In concluding the parties’ contract sufficiently excluded all implied

warranties covering the home, the lower court relied on this Court’s decision

in Tyus, supra, in which we recognized that builder-vendors could

contractually limit or disclaim implied warranties. The very nature of implied

warranties, Tyus clarified, is that they pertain only to latent defects, as they

do not “extend to defects of which the purchaser had actual notice or which

are or should be visible to a reasonably prudent man upon an inspection of

the dwelling.” Id. at 433 (citations omitted). Moreover, “the warranties of

habitability and reasonable workmanship are not created by representations

of a builder-vendor but rather are implied in law and as such, exist

independently of any representations of a builder-vendor[,] Tyus explained.

Id.

       Because the contractual clause at issue in Tyus was predicated upon

representations made by the builder-vendor and made no clear and specific

reference to its effect upon implied warranties,4 we determined that it failed
____________________________________________


4
  In Tyus, paragraph thirteen of the vendors' contract with the buyers
stated in pertinent part:

       Buyer has inspected the property or hereby waives the right to
       do so and he has agreed to purchase it as a result of such
       inspection and not because of or in reliance upon any
       representation made by the Seller ... and that he has agreed to
       purchase it in its present condition unless otherwise specified
(Footnote Continued Next Page)


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J-A05037-16



to disclaim the warranties of habitability and reasonable workmanship

implied in the law:

      Thus, the integration clause of paragraph thirteen may be
      regarded as sufficient to exclude a matter which one of the
      parties might contend was in fact agreed to prior to the signing
      of the contract. . . . [S]tanding alone, these words are not
      sufficient to exclude an implied warranty, which is applicable
      only by operation of law. Such an exclusion, if desired by the
      parties to a contract for the purchase of a residence, should be
      accompanied by clear, unambiguous language, reflecting the fact
      that the parties fully intended such result. . . . That is, the
      integration clause of paragraph thirteen does not constitute a
      valid limitation of the implied warranties because it fails to
      explain with particularity its purported effect on implied
      warranties.
             Therefore, we hold that when the alleged disclaimer of
      implied warranties in paragraph thirteen of the parties' contract
      is strictly construed against the Vendors, the alleged disclaimer
      fails because it does not refer to its impact on specific, potential
      latent defects and so does not notify the Buyers of the implied
      warranty protection they are waiving by signing the contract
      supplied by the Vendors.

Id. at 434-35. (internal citation and quotation marks omitted).

      In the case sub judice, the disclaimer appearing in Paragraph 21 of the

Agreement of Sale, supra, clearly, specifically, and, therefore, sufficiently

notified Appellant that she was waiving all implied warranty protections by


                       _______________________
(Footnote Continued)

      herein. It is further understood that this agreement contains the
      whole agreement between the Seller and the Buyer and there
      are no other terms, obligations, covenants, representations,
      statements or conditions, oral or otherwise of any kind
      whatsoever concerning this sale.

Id. at 432.



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J-A05037-16



signing the contract supplied by Baker. By definition, the latent defects of

which she now complains are implicitly covered by implied warranties of

habitability,    workmanship,        fitness   for   a   particular     purpose,   and

merchantability, all of which Baker conspicuously disclaimed under the

parties’ agreement.       Therefore, we discern no error in the lower court’s

pronouncement that Appellant is entitled to no relief on this claim.

       Our determination in this regard also defeats Appellant’s negligent

misrepresentation claim as she presents it on appeal. Appellant predicates

this claim on the argument that Baker induced her purchase through both

affirmative statements on the quality of the home combined with failures to

disclose home quality-compromising material defects of which it should have

been aware.      Effectively acknowledging, however, that the alleged defects

are identical to the those that would be subject to Baker’s disclaimer of all

implied warranties in the parties’ agreement of sale if deemed valid,

Appellant argues that she may prevail on the claim because Baker “did not

limit or disclaim the implied warranties of workmanship or habitability, and

that the aspect of latent defects and specific features of workmanship were

neither waived nor excluded.” Appellant’s brief at 12.                Our validation of

Baker’s disclaimer of all implied warranties undercuts the predicate of

Appellant’s negligent misrepresentation claim, rendering it devoid of merit. 5

____________________________________________


5
  There exist other bases upon which to affirm summary judgment with
respect to Appellant’s negligent misrepresentation claim. First, the claim,
(Footnote Continued Next Page)


                                           -8-
J-A05037-16


                       _______________________
(Footnote Continued)

based as it is on pre-contractual statements and nondisclosures allegedly
made by Baker, would fail under the parole evidence rule, which provides as
follows:
       where the parties, without any fraud or mistake, have
       deliberately put their engagements in writing, the law declares
       the writing to be not only the best, but the only evidence of their
       agreement; that all preliminary negotiations, conversations and
       verbal agreements are merged in and superseded by the
       subsequent written contract; and that unless fraud, accident, or
       mistake be averred, the writing constitutes the agreement
       between the parties, and its terms cannot be added to nor
       subtracted from by parol evidence.
Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 204 (Pa. 2007)
(quotation marks and citation omitted). “Once a writing is determined to be
the parties' entire contract, the parol evidence rule applies and evidence of
any previous oral or written negotiations or agreements involving the same
subject matter as the contract is almost always inadmissible to explain or
vary the terms of the contract.” Youndt v. First Nat. Bank of Port
Allegany, 868 A.2d 539, 546 (Pa.Super. 2005) (quoting Yocca v.
Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004)).
       The parties’ written contract makes plain that no implied warranty
applied to the home. Accordingly, the parole evidence rule bars Appellant’s
attempt to avoid the disclaimer through invocation of pre-contractual
conversations, during which Baker’s agents allegedly misrepresented
through statement and omission the construction quality of the home.
Relatedly, Appellant fails to direct us to any other language in the contract
amounting to an express warranty that would contradict or undermine the
disclaimer of implied warranties, and so she may not prevail on this ground,
either. See, e.g., Morningstar v. Hallett, 858 A.2d 125, 131 (Pa.Super.
2004) (holding where contract contained terms creating express warranty as
to age of horse to be delivered, “as is” clause elsewhere in contract could
not disclaim that express warranty).
       Second, Appellant posits that she adequately supported her claim with
allegations that Baker failed to disclose material defects within the home it
built and, ultimately, sold to her. We disagree. In her complaint, she
averred Baker “failed to disclose the material defects in the Property to
plaintiffs . . . despite actual knowledge of the failures and omissions of
construction . . . [and] under circumstances in which such defendants ought
to have known the existence of such defects and yet failed to disclose the
same recklessly or for failure to make a reasonable investigation concerning
the nature of the Property they were selling.” Complaint, at ¶¶ 22 and 23.
(Footnote Continued Next Page)


                                            -9-
J-A05037-16



      In her final claim, Appellant asserts the disclaimer of warranties and

accompanying warranty application she opted to complete as part of the

Agreement of Sale together formed an unconscionable contract of adhesion.

She contends she was given no opportunity to challenge or change the

operative terms of the referenced documents, which, she insists, were

                       _______________________
(Footnote Continued)

Appellant echoed a similar boilerplate averment, without providing specific
evidence of fact, in her Response to Baker’s motion for summary judgment,
which averred Appellant failed to provide any specific facts to establish her
claim of negligent misrepresentation. Specifically, in her Response Appellant
asserted she “justifiably relied upon and reasonably believed the
representations of the Defendant and their agents with regard to the quality
of the new house being sold to her.” Response, filed December 18, 2014, at
15.
              Where a motion for summary judgment is based upon
       insufficient evidence of facts, the adverse party must come
       forward with evidence essential to preserve the cause of action.
       If the non-moving party fails to come forward with sufficient
       evidence to establish or contest a material issue to the case, the
       moving party is entitled to judgment as a matter of law. The
       non-moving party must adduce sufficient evidence on an issue
       essential to its case and on which it bears the burden of proof
       such that a jury could return a verdict favorable to the non-
       moving party.
McCarthy v. Dan Lepore & Sons Co., 724 A.2d 938, 940 (Pa.Super. 1998)
(citation omitted). Accord Swarner v. Mut. Ben. Grp., 72 A.3d 641, 651
(Pa.Super. 2013) (recognizing Rule 1035.2 obligation placed on non-movant
plaintiff to offer proof of injuries to avoid entry of summary judgment where
defendant’s motion for summary judgment alleged failure to produce any
evidence). Consistent with this authority, we would find Appellant failed to
produce essential, specific factual support for her claim to avoid summary
judgment, as Baker’s motion presented documentary support in opposition
to the negligent misrepresentation claim and otherwise challenged Appellant
to support her claim with evidence of fact.




                                           - 10 -
J-A05037-16



presented in a “take it or leave it” fashion by a party more sophisticated in

such matters than she. Her choice, she maintains, was to either accept the

contractual terms and conditions—which, she claims consisted of uncommon

language—or, instead, to walk away from the transaction.

      “An adhesion contract is a ‘standard-form contract prepared by one

party, to be signed by the party in a weaker position, usu[ally] a consumer,

who   adheres   to   the   contract   with     little   choice   about   the   terms.’”

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1190 (Pa. 2010)

(quoting   Black's   Law   Dictionary   (8th       Ed.2004),     p.   342).     “[T]he

determination that an adhesion contract is at issue, by definition fulfills the

second prong of the unconscionability test.” McNulty v. H & R Block, Inc.,

843 A.2d 1267, 1273         n.6   (Pa.Super. 2004) (”[a] determination of

unconscionability requires a two-fold determination: 1) that the contractual

terms are unreasonably favorable to the drafter, and 2) that there is no

meaningful choice on the part of the other party regarding the acceptance of

the provisions.”).

      We discern nothing unconscionable about the warranty disclaimer and

accompanying warranty in the Agreement of Sale.                       Both types of

instruments are fairly commonplace, the disclaimer and warranty at issue

contain standard language for instruments of their respective kind, and they

contain no unusual or unexpected terms or conditions that would prove

difficult to understand. Nor do we find the contract unreasonably favorable

to Baker as the seller/drafter, as the warranty supplied to Appellant as part

                                      - 11 -
J-A05037-16



of the agreement afforded her substantive protections against various

malfunctions and defects to her home over the course of ten years. Because

the parties’ contract was not unconscionable, this claim fails.

      Order is affirmed.

      Judge Ott joins the memorandum.

      Judge Olson concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2016




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