J-A08022-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CHRISTOPHER ADAMS AND MARGARET                       IN THE SUPERIOR COURT OF
A. ADAMS, H/W,                                             PENNSYLVANIA

                           Appellants

                      v.

HELLINGS BUILDERS, INC.,

                           Appellee                        No. 1407 EDA 2015


                 Appeal from the Order Entered April 17, 2015
               In the Court of Common Pleas of Chester County
                    Civil Division at No(s): 2014-11344-TT


BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.

MEMORANDUM BY OLSON, J.:                                     FILED JULY 26, 2016

      Appellants, Christopher Adams and, his wife, Margaret A. Adams

appeal from the order entered on April 17, 2015, sustaining preliminary

objections   filed   by    Hellings   Builders,   Inc.   (Hellings)   and   dismissing

Appellants’ complaint.        Upon careful review, we vacate the order and

reinstate the complaint against Hellings.

      The trial court summarized the facts of this case as follows:

        In 2011, Appellants purchased a home from the Witsky
        [f]amily, [none of whom] [is] a party to this action. The
        Witsky[s] bought the home as a newly constructed dwelling
        from Hellings [] in 2008.

        In 2014, [Appellants] noticed that other homes in the
        neighborhood were being tested for moisture. Armed only
        with this observation, [] Appellants decided to hire a
        company to conduct infrared testing on their home to test
        for moisture infiltration.


*Retired Senior Judge assigned to the Superior Court.
J-A08022-16


         According to [Appellants], the testing results indicated
         possible moisture infiltration and the possible presence of
         mold due to the improper application of stucco.

                                *          *      *

         Appellants filed suit against [Hellings] alleging, inter alia,
         violation of the Unfair Trade Practices and Consumer
         Protection Law, 73 P.S. 201-1 et seq. (hereinafter UTPCPL).
         [Hellings] filed [p]reliminary [o]bjections asserting that []
         Appellants were not the direct purchasers of the property,
         had no direct business dealings with [Hellings], [Hellings]
         was never employed by Appellants and therefore could not
         raise [a claim under] the UTPCPL. In addition, [Hellings]
         argued that Appellants failed to establish that they relied on
         direct conversations with [Hellings]. Appellants argue that
         there are promotional materials which assert [Hellings]
         build[s] nice homes that they relied upon in making their
         purchase.

Trial Court Opinion, 7/21/2015, at 2 (emphasis and quotations omitted).

The trial court sustained Hellings’ preliminary objections by order dated April

17, 2015. This timely appeal resulted.1

       Appellants present the following issues for our review:

         a. Whether the [t]rial [c]ourt erred in sustaining Hellings
            Builders Inc.’s demurrer to Count I and Count II of
            [Appellants’] [c]omplaint for [v]iolation of the [UTPCPL]
            and [f]raud on the basis that “Hellings made no
            representation to [Appellants]” where [Appellants] have
            specifically pled that Hellings Builders Inc. made specific
            representations that [Appellants] relied upon in
            purchasing the [h]ome, and where the standard for
____________________________________________


1
  Appellants filed a notice of appeal on May 12, 2015. On May 13, 2015, the
trial court ordered Appellants to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b).           Appellants
complied timely on May 29, 2015. The trial court issued an opinion pursuant
to Pa.R.A.P. 1925(a) on July 21, 2015.



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J-A08022-16


             resolving preliminary objections requires         that   such
             specific averments be taken as true.

        b. Whether the [t]rial [c]ourt erred in sustaining Hellings
           Builders Inc.’s demurrer to Count I of [Appellants’]
           [c]omplaint for [v]iolation of the UTPCPL and Count II for
           [f]raud where [Appellants’] reliance on representations
           to the original purchasers was specially foreseeable by
           Hellings Builders Inc., and where the Pennsylvania
           Superior Court has specifically ruled that a contractor is
           liable to subsequent purchasers of a home for fraud for
           representations made to the original owners on the basis
           that such reliance is specially foreseeable, and where
           such specially foreseeable reliance may be the basis for a
           claim for violation of the UTPCPL, even if such reliance
           had not been specifically intended.

        c. Whether the [t]rial [c]ourt erred in sustaining Hellings
           Builders Inc.’s     demurrer to Counts I and II of
           [Appellants’] [c]omplaint in finding that, as a matter of
           law, [Appellants] were required to plead that
           representations by Hellings Builders Inc. were made
           directly to [Appellants], despite the fact that the UTPCPL
           is a remedial statute specifically directed at eradicating
           fraudulent practices towards consumers, and despite the
           fact that such a requirement constitutes a de facto privity
           requirement and such a privity requirement has been
           rejected by the Superior Court of Pennsylvania for claims
           for fraud and claims brought under the UTPCPL.

Appellants’ Brief at 4-5 (citations and suggested answers omitted).

     All of Appellants’ issues are interrelated, so we will examine them

together.    Generally, Appellants argue the trial court erred in sustaining

Hellings’ preliminary objections and dismissing Appellants’ complaint. First,

Appellants    assert   they   “specifically   pled   that   they   relied    on   the

representations made by Hellings regarding the quality of the [h]ome [they

purchased], which the [t]rial [c]ourt was bound to consider as true under

the well-settled standard of review for preliminary objections.”            Id. at 13

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(emphasis omitted). Appellants claim they relied “on promotional materials

and statements [Hellings] made directly to the public” when purchasing the

home.    Id. at 15.    More specifically, Appellants contend that Hellings

represents itself as “one of the area[’]s most reputable builders” and its

corporate slogan is “Building A Higher Standard.”     Id. at 16.     Appellants

assert that Hellings is liable for water damage to their home because they

relied upon Hellings’ misrepresentations.   Id. at 16-17.      Next, Appellants

argue the trial court erred by sustaining Hellings’ preliminary objections on

their UTPCPL claim because:

        Pennsylvania law recognizes that claims for fraud and for
        violation of the UTPCPL do not require privity [and]
        subsequent purchasers of residential real estate are
        specially foreseeable plaintiffs vis-à-vis the home builder,
        are entitled to rely on statements made by the home-
        builder to the original purchasers and have standing to
        bring a claim for fraud based on misrepresentations made
        by the home-builder to the original purchasers.

Id. at 17. Similarly, Appellants maintain the trial court erred by dismissing

their fraud claim because they alleged, as subsequent purchasers of the

home at issue, that they were specially foreseeable plaintiffs who relied upon

Hellings’ knowingly false misrepresentations to the original homeowners and,

as a proximate result, Appellants suffered moisture infiltration damage to

their home from defective stucco installation. Id. at 25-32.

      We review a challenge to a trial court's decision to sustain preliminary

objections under the following standard:




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        Our standard of review of an order of the trial court
        overruling or [sustaining] preliminary objections is to
        determine whether the trial court committed an error of
        law. When considering the appropriateness of a ruling on
        preliminary objections, the appellate court must apply the
        same standard as the trial court.

        Preliminary objections in the nature of a demurrer test the
        legal sufficiency of the complaint. When considering
        preliminary objections, all material facts set forth in the
        challenged pleadings are admitted as true, as well as all
        inferences reasonably deducible therefrom. Preliminary
        objections which seek the dismissal of a cause of action
        should be sustained only in cases in which it is clear and
        free from doubt that the pleader will be unable to prove
        facts legally sufficient to establish the right to relief. If any
        doubt exists as to whether a demurrer should be sustained,
        it should be resolved in favor of overruling the preliminary
        objections.

Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011) (internal

citation omitted).

      Our decisions in Woodward v. Dietrich, 548 A.2d 301 (Pa. Super.

1988) and Valley Forge Towers South Condominium v. Ron-Ike Foam

Insulators, Inc., 574 A.2d 641 (Pa. Super. 1990) are dispositive of the

issues presented herein. Those cases provide that fraud and UTPCPL claims

may   be   asserted   by   third   parties   against   contractors   who    make

misrepresentations, despite the absence of privity, when reliance is specially

foreseeable and damage proximately results.

      In Woodward, “we [we]re called upon to determine whether a party

may be held liable for damages proximately resulting from a person's

reasonable reliance on fraudulent misrepresentations, despite the fact that

such a person had no privity with the party making the misrepresentations

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J-A08022-16



and was not specifically intended to rely on the misrepresentations, when

the reliance was nonetheless specially foreseeable.” Woodward, 548 A.2d

at 303. The Woodwards filed a complaint alleging “their basement had been

flooded and damaged two years after they purchased their home from the

Dietrichs” because either the Dietrichs and/or Harry Smith, a sewer

contractor, “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.

       Initially, the Woodward Court noted that “[u]nder our early case law,

a contractor’s liability for defects in the construction was limited to the

persons in direct privity with the contractor; the contractor was fully

absolved from liability to third persons for injuries caused by even latent

defects upon delivery and acceptance of possession of the realty.”         Id. at

314.     However, as the Woodward Court recognized, “[t]he privity

requirement of earlier caselaw was first eroded and then fully abandoned by

our Supreme Court.” Id. Thus, in examining “whether the Woodwards []

stated a valid cause of action for fraudulent misrepresentation against

Smith[,]” this Court conducted a “two part analysis: first, [] determin[ing]

the degree of foreseeable and reasonable reliance alleged, and then []

decid[ing]   whether   liability   for   fraudulent   misrepresentation   may   be

predicated upon such foreseeable reasonable reliance.” Id. at 310.

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      “[W]e concluded that the Woodwards[] alleged specially foreseeable

reasonable reliance upon Smith’s misrepresentations” because: (1) “sewer

connections are not by their nature open to inspection [and] prospective

buyers must ordinarily rely upon representations made by the sellers and

any confirmatory documentation available[;]” (2)             “while Smith may not

have known that the Dietrichs would sell their home, the possibility of such a

sale during the useful life of the a sewer connection was certainly quite

foreseeable[;]”   and,   (3)       “Smith’s   alleged   fraudulent   procurement   of

governmental approval of the concealed non-installation of the gray water

sewage sewer connection would also increase the foreseeability of a

subsequent purchaser’s reliance on misrepresentations[.]” Id. at 311-312.

      The Woodward Court ultimately found:

        Assuming that the Dietrichs were not parties to the alleged
        fraudulent conduct by Smith, recognition of the Woodwards'
        cause of action against Smith would merely allow the right
        to recover for damages proximately caused by the
        fraudulent    misrepresentations    and    concealed    non-
        installation to pass from the seller to the buyer when
        subsequent transfer of the property substituted a new
        victim for the original victim of the undiscovered fraud.
        Under the facts alleged, only the identity of the victim was
        affected by the sale of the property by the Detrichs; the
        amount, duration, and class of persons to whom Smith was
        alleged to be liable for damages remained the same.

                               *          *             *

        If, as alleged, the Dietrichs were not aware of Smith's
        alleged fraudulent camouflaged non-installation of grey
        water sewage sewer connection, we can see no reason why
        the Dietrichs' sale of the home to the Woodwards should
        absolve Smith from liability for damages proximately caused

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J-A08022-16


           by such fraud. When fraud creates or conceals a latent
           defect, transfer of the defective chattel or realty to an
           innocent third party should not absolve the wrongdoer from
           liability for damages caused by that undiscovered fraud.
           Thus, we find that this theory of liability was improperly
           rejected by the trial court.

Id. at 316.          Hence, in Woodward, we rejected the trial court’s

determination that privity is required between contractors and subsequent

third-party homebuyers in actions sounding in fraud.

         Thereafter, in Valley Forge, our Court expanded upon the holding in

Woodward to determine that privity is likewise not required in bringing a

cause of action under the UTPCPL. Therein, a condominium association

brought an action against a roofing manufacturer under the UTPCPL.                  In

Valley Forge, this Court noted, “the most vexing problem presented in

[that]    appeal    [was]   the    absence   of   technical   privity”   between   the

condominium association and the roofing manufacturer. Valley Forge, 574

A.2d at 646.       Looking at the language of 73 P.S. § 201-9.2, Pennsylvania’s

UTPCPL statute, our Court determined “the statute is silent on the

significance of privity.”    Id.    Thus, we examined the legislative intent and

concluded, “the law was passed to substantially enhance the remedies

available to consumers as the result of unfair or deceptive business,

specifically including the failure to comply with any written guarantee or

warranty.” Id. at 646. We then considered our decision in Woodward and

concluded:

           that strict technical privity was not intended by our
           legislature to be required to sustain a cause of action under


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        73 P.S. § 201-9.2. The statute is to be construed broadly to
        effectuate its general intent to eradicate fraudulent business
        practices. Consequently, we decline[d] to engraft a
        requirement of strict technical privity onto a silent statute,
        especially since no such restriction applies in fraud cases
        generally.

Id. at 647.

     In this case, in sustaining Hellings’ preliminary objections, the trial

court determined:

        In the instant case the salient facts are not in dispute.
        Appellants never spoke with [Hellings]. Appellants never
        met with any representative of [Hellings]. Appellants did
        not hire [Hellings] to build the home. Appellants did not
        purchase the home from [Hellings].

        The UTPCPL appears to be silent on the issue of privity. It
        is silent on whether Appellants need to have contracted with
        [Hellings], but the act is clear that there must be reliance.

                            *         *           *

        […] Appellants purchased the home from Matthew and
        Michelle Witzky in August 2011. The Witzkys purchased the
        home new from Hellings Builders in 2006. While no privity
        maybe [sic] required under the UTPCPL, what is required, at
        least at this stage, is an allegation that the Appellants relied
        on Hellings[’] conduct, deceptive or otherwise. Appellants
        were very careful in the drafting of their [c]omplaint to
        allege that the Witzky[s] relied upon representations of
        Hellings. But even if those representations were made to
        the Witzky[s], Hellings made no representations to the
        Appellants.

                            *         *           *

        [The trial court] note[s] that the UTPCPL is silent regarding
        privity and there are very few, if any, cases addressing this
        particular issue, i.e. a subsequent purchaser of a newly
        constructed home. Valley Forge [] addressed the issue of
        subsequent purchasers in relation to the UTPCPL and

                                     -9-
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        ultimately found that the Homeowners’ Association could
        bring a private action against the manufacturer despite not
        having purchased the product directly from the
        manufacturer. That case differed significantly from the
        instant matter in that it dealt with the purchase of a specific
        product, which failed under a warranty that was given
        directly to the Homeowners’ Association. In addition, the
        Association asked for that product specifically. That is not
        the case here.

        Thus, [the trial court determined the UTPCPL] focus[ses] on
        reliance. Specifically, [one must make a purchase] ‘as a
        result of the use or employment by any person of a method,
        act or practice declared unlawful by section 3 of this Act…’
        See, UTPCPL 201-9.2. The [c]omplaint makes clear that
        the house was purchased from the Witzkys approximately
        five years after it was built. While Appellants note the
        advertising Hellings put forth to the Witzky[s], Appellants
        do not assert anywhere in the [c]omplaint that any
        representations by the builder were [sic] made to them.
        Nowhere in the [c]omplaint do Appellants allege that the
        builder, ever spoke to them. The UTPCPL clearly anticipates
        that    the    [p]laintiff relied  upon   a   [d]efendant’s
        representations, methods, or acts. In the instant case, if
        Appellants relied on anyone it was the seller of the home,
        the Wit[z]kys.

Trial Court Opinion, 7/21/2015, at 3-5.

    We conclude that the trial court erred as a matter of law in sustaining

Hellings’   preliminary   objections   on   grounds   that   Hellings   made   no

representations to Appellants. As set forth in detail above, Woodward and

Valley Forge make clear that technical privity is no longer required to

assert a cause of action for fraud or a violation of the UTPCPL. However, the

trial court consistently referred to that fact. Instead, the focus is on whether

reliance on alleged misrepresentations was specially foreseeable.              In

Woodward, we specifically determined that a third-party purchaser of


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property is specially foreseeable. Moreover, reviewing all material facts set

forth in Appellants’ complaint as true, as well as all inferences reasonably

deducible therefrom, as our standard requires, Appellants allege that

Hellings generally represented, in printed materials and on Hellings’ own

website, that it was a reputable builder touting superior quality and

construction. See Complaint, at 2-3, ¶¶ 9-11. Appellants further aver that

in the sales agreement with the Witzkys, Hellings stated that the home at

issue would include a three-coat stucco system according to International

Residential Code standards. Id. at 3-4, ¶¶ 9, 14-15.    However, Appellants

maintain that upon inspection by their expert, the stucco system did not

comply with those standards and they suffered damage as a result. Id. at

5-7, ¶¶ 27-42. In support of both their fraud and UTPCPL claims, Appellants

assert that they justifiably relied upon Hellings’ misrepresentations in

purchasing the home. Id. at 9, 11, ¶¶ 64, 75. Accordingly, based upon our

standard of review and the prevailing law, we conclude that Appellants’

claims should not have been dismissed on preliminary objections.

     Order vacated.     Complaint reinstated.   Case remanded for further

proceedings. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/2016




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