J-A07044-17

                              2017 PA Super 192

RICHARD POLLOCK, AN ADULT                   :   IN THE SUPERIOR COURT OF
INDIVIDUAL, CHERYL POLLOCK, AN              :         PENNSYLVANIA
ADULT INDIVIDUAL, PAUL L. KUTCHER,          :
AN ADULT INDIVIDUAL, AND CYNTHIA            :
P. KUTCHER, AN ADULT INDIVIDUAL,            :
                                            :
              Appellants                    :
                                            :
      v.                                    :
                                            :
NATIONAL FOOTBALL LEAGUE AND                :
DALLAS COWBOYS FOOTBALL CLUB,               :
LTD.                                        :   No. 1611 WDA 2016

             Appeal from the Order Entered September 27, 2016
              in the Court of Common Pleas of Allegheny County
                     Civil Division at No(s): GD-14-004867

BEFORE:     OLSON, STABILE, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.:        FILED JUNE 21, 2017

      Richard Pollock, Cheryl Pollock, Paul L. Kutcher, and Cynthia P.

Kutcher (Plaintiffs, collectively) appeal from the September 27, 2016 order

that denied Plaintiffs’ motion for leave to file a second amended complaint

against the National Football League (the NFL).1 We affirm.

      The trial court summarized the history of the case as follows.

            Plaintiffs are four ticketholders for Super Bowl XLV held in
      Arlington, Texas, on February 6, 2011. Plaintiffs were among
      the group of ticketholders who were unable to watch the game
      from the seats designated on their tickets because these were
      temporary seats not approved by safety authorities in time for


1
  The order also granted Plaintiffs’ request to discontinue their claims against
the Dallas Cowboys Football Club, Ltd. Hence, although quotations in this
memorandum reference “defendants” in this action, the NFL is the only
defendant involved in this appeal.
*Retired Senior Judge assigned to the Superior Court.
J-A07044-17


     use at the game. No adequate seats were offered to Plaintiffs.
     This lawsuit arises out of Plaintiffs’ being denied access to the
     seats designated on the tickets and defendants’ failure to advise
     Plaintiffs when they purchased the tickets that they would be
     receiving temporary seats that did not yet exist and that there
     was no guarantee that an occupancy permit would be issued by
     the City of Arlington for these seats prior to the game.

            Initially, this lawsuit was commenced in proceedings at
     Pollock v. National Football League and Dallas Cowboys
     Football Club, Ltd., [2013 WL 1102823 (W.D.Pa. March 15,
     2013),] filed in the United States District Court for the Western
     District of Pennsylvania (2:12-cv-130). The initial complaint
     raised tort claims, including claims based upon the [Unfair Trade
     Practices and] Consumer Protection Law [(UTPCPL), which allows
     recovery of treble damages, costs, and attorney fees, 73 P.S.
     § 201-9.2(a)]. In the initial complaint, Plaintiffs also alleged
     that their Super Bowl tickets constituted valid, enforceable
     contracts against the NFL and asserted a claim for a breach of
     contract based on the NFL’s failure to provide the seats
     designated on the face of the tickets.

            Defendants filed a motion to dismiss all of Plaintiffs’ tort
     claims under the Pennsylvania economic loss/gist of the action
     doctrines. In response to this motion, Plaintiffs amended their
     complaint to abandon their claim for breach of contract while
     reasserting their tort claims arising out of the NFL’s failure to
     provide the seating reflected by the tickets. Defendants then
     filed a motion to dismiss in which defendants contended that all
     of plaintiffs’ claims in their amended complaint (which no longer
     included breach of contract claims) were barred by the gist of
     the action/economic loss doctrine notwithstanding Plaintiffs’
     decision not [to] reassert a breach of contract claim. The district
     court agreed.

           At page 6 of a memorandum order dated March 15, 2013,
     the district court ruled: “Plaintiffs’ claims for negligent
     misrepresentation (Count II and III) are barred by the gist of the
     action doctrine because the tort claims are nothing more than a
     breach of the contractual obligations created by the purchase of
     the Super Bowl tickets.” At page 11, the court ruled: “Plaintiffs’
     [UTPCPL] and fraudulent inducement claims are barred by the
     gist of the action doctrine.” The court also stated at page 11

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J-A07044-17


      that the economic loss doctrine prohibits Plaintiffs from
      recovering in tort economic losses to which their entitlement
      flows only from contract.[2]

             Defendants also moved for dismissal of the entire action
      because of Plaintiffs’ failure to satisfy the amount in controversy
      requirement, and the district court ruled that the action must be
      dismissed for want of jurisdiction given the lack of viable claims
      to support awards for punitive damages, attorney fees, and
      triple damages. On appeal, the [Third Circuit] court of appeals
      agreed that the district court did not err in granting defendants’
      motion to dismiss for failure to state a claim and defendants’
      motion to dismiss for lack of jurisdiction. [Pollock v. Nat’l
      Football League, 553 F. App’x 270 (3rd Cir. 2014).]

Trial Court Opinion, 9/27/2016, at 1-2 (some capitalization altered).



2
 “The gist of the action doctrine prohibits a plaintiff from re-casting ordinary
breach of contract claims into tort claims.” B.G. Balmer & Co. v. Frank
Crystal & Co., Inc., 148 A.3d 454, 468 (Pa. Super. 2016), appeal denied,
No. 725 MAL 2016, 2017 WL 1015542 (Pa. Mar. 14, 2017).

      Under Pennsylvania law, a cause of action framed as a tort but
      reliant upon contractual obligations will be analyzed to determine
      whether the cause of action properly lies in tort or contract. In
      general, courts are cautious about permitting tort recovery
      based on contractual breaches. In keeping with this principle,
      this Court has recognized the gist of the action doctrine, which
      operates to preclude a plaintiff from re-casting ordinary breach
      of contract claims into tort claims. Where fraud claims are
      intertwined with breach of contract claims and the duties
      allegedly breached are created and grounded in the contract
      itself, the gist of the action is breach of contract. Thus, claims of
      fraud in the performance of a contract are generally barred
      under the gist of the action doctrine.

Autochoice Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207,
1212 (Pa. Super. 2010) (citation and quotation marks omitted; emphasis in
original). Similarly, “Pennsylvania law generally bars claims brought in
negligence that result solely in economic loss.” Gongloff Contracting,
L.L.C. v. L. Robert Kimball & Assocs., Architects & Engineers, Inc.,
119 A.3d 1070, 1076 (Pa. Super. 2015).
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J-A07044-17


      On March 20, 2014, Plaintiffs transferred the action from federal to

state court pursuant to 42 Pa.C.S. § 5103. More than two years passed with

no docket activity until Plaintiffs filed a motion for leave to file a second

amended complaint.      The proposed complaint included three counts: (1)

fraudulent or negligent inducement, (2) violation of the UTPCPL, and (3)

breach of contract. Motion, 4/4/2016, at Exhibit A. The NFL opposed the

motion, claiming that the tort claims were barred by the doctrines of res

judicata and collateral estoppel, and that the contract claim was barred by

the statute of limitations. Brief in Opposition, 5/17/2016, at 6-13. The trial

court denied Plaintiffs’ motion by memorandum and order of September 27,

2016. Plaintiffs thereafter timely filed a notice of appeal.

      Plaintiffs present the following questions for this Court’s review.

             1.    Whether a federal district court order, dismissing
      [Plaintiffs’] tort claims under Fed.R.Civ.P. 12(b)(6) and
      dismissing the federal court action for want of subject matter
      jurisdiction and without prejudice to Plaintiffs[’] refiling the
      action in state court as authorized by 42 Pa.C.S. § 5103(b),
      prohibits [Plaintiffs] from re-filing tort actions and an action for
      violation of the [UTPCPL] against [the] NFL in state court based
      on res judicata or collateral estoppel principles?

             2.     Whether 42 Pa.C.S. § 5103(b) preserves [Plaintiffs’]
      right to raise the tort claims, claim for violation of the UTPCPL
      and breach of contract claim against [the] NFL alleged in
      [Plaintiffs’] proposed second amended complaint               after
      [Plaintiffs’] action has been dismissed by a federal district court
      for want of subject matter jurisdiction and without prejudice to
      Plaintiffs refiling the action in state court as authorized by 42
      Pa.C.S. § 5103(b)?




                                      -4-
J-A07044-17


           3.    Whether 42 Pa.C.S. § 5103 is unconstitutionally
      vague and ambiguous?

            4.      In the alternative, whether the averments stated in
      [Plaintiffs’] proposed second amended complaint merely amplify
      those stated in [their] first amended complaint so as to permit
      [them] to plead a breach of contract action in [the] proposed
      second amended complaint?

Plaintiffs’ Brief at 3-4 (trial court answers omitted; some capitalization

altered).

      We begin our consideration of Plaintiffs’ questions with our standard of

review.

      Our standard of review of a trial court’s order denying a plaintiff
      leave to amend its complaint ... permits us to overturn the order
      only if the trial court erred as a matter of law or abused its
      discretion. The trial court enjoys broad discretion to grant or
      deny a petition to amend. Although the court generally should
      exercise its discretion to permit amendment, where a party will
      be unable to state a claim on which relief could be granted, leave
      to amend should be denied.

Schwarzwaelder v. Fox, 895 A.2d 614, 621 (Pa. Super. 2006) (citations

and quotation marks omitted).

      Here, the trial court denied Plaintiffs leave to amend their complaint to

plead the tort claims stated in counts I and II of Plaintiffs’ proposed second

amended complaint because it held that those claims were barred by res

judicata and/or collateral estoppel.    Trial Court Opinion, 9/27/2016, at 3.

Plaintiffs argue that the trial court’s ruling is contrary to 42 Pa.C.S. § 5103.

      Section 5103 provides as follows, in relevant part.




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J-A07044-17


     (a) General rule.--[] A matter which is within the exclusive
     jurisdiction of a court or magisterial district judge of this
     Commonwealth but which is commenced in any other tribunal of
     this Commonwealth shall be transferred by the other tribunal to
     the proper court or magisterial district of this Commonwealth
     where it shall be treated as if originally filed in the transferee
     court or magisterial district of this Commonwealth on the date
     when first filed in the other tribunal.

     (b) Federal cases.--

           (1) Subsection (a) shall also apply to any matter
           transferred or remanded by any United States court for a
           district embracing any part of this Commonwealth. In
           order to preserve a claim under Chapter 55 (relating to
           limitation of time), a litigant who timely commences an
           action or proceeding in any United States court for a
           district embracing any part of this Commonwealth is not
           required to commence a protective action in a court or
           before a magisterial district judge of this Commonwealth.
           Where a matter is filed in any United States court for a
           district embracing any part of this Commonwealth and the
           matter is dismissed by the United States court for lack of
           jurisdiction, any litigant in the matter filed may transfer
           the matter to a court or magisterial district of this
           Commonwealth by complying with the [requisite] transfer
           provisions....[3]

42 Pa.C.S. § 5103.

     As Plaintiffs properly note, the “policy behind 42 Pa.C.S. § 5103 is to

preserve a claim or cause of action timely filed in federal court on the

ground that the claimant should not lose the opportunity to litigate the

merits of the claim simply because the claimant erred regarding

federal jurisdiction.”   Plaintiffs’ Brief at 23 (emphasis added) (citing



3
  Plaintiffs’ compliance with the transfer provisions of the statute is not
disputed.
                                   -6-
J-A07044-17


Commonwealth v. Lambert, 765 A.2d 306, 320 (Pa. Super. 2000)).

However, Plaintiffs go on to contend that this statute preserved their right to

litigate their tort claims in state court after the federal court dismissed the

complaint for lack of jurisdiction. Id. at 25. This latter contention ignores

the fact that the federal court’s rulings were based upon the merits of the

tort claims.

      Plaintiffs stated both tort and contract claims in their initial complaint

filed in federal court.   Pollock, 2013 WL 1102823, at *2.         After the NFL

moved to dismiss the tort claims under the gist-of-the-action and economic

loss doctrines, Plaintiffs amended their complaint to state only tort claims,

and expressly disavowed that they had any contractual relationship with the

NFL. Id. The NFL sought to have Plaintiffs’ amended complaint dismissed

based upon the gist of the action sounding in contract.         Id.   The district

court agreed with the NFL:

            Here, the parties’ obligations arise solely from [P]laintiff[s’]
      purchase and the NFL’s sales of the Super Bowl tickets. Any
      duties imposed on defendants were created as a result of those
      transactions. And the alleged breach was the failure to provide
      the very essence of what the parties’ contract obligated
      defendants to provide: admission to and a spectator seat for the
      game. The asserted breach gives rise to liability grounded in the
      contract and [P]laintiffs’ damages result from defendants’ failure
      to provide what was promised by sales of the tickets.

Id. at *5.     See also id. at *7 (“[P]laintiffs’ intentional fraud claims are

barred by the economic loss doctrine.”).




                                      -7-
J-A07044-17


      Having determined that Plaintiffs failed to state viable tort claims, the

district court considered whether Plaintiffs could recover “under any viable

theory” the requisite $75,000 necessary to satisfy the threshold for diversity

jurisdiction in federal court under 28 U.S.C. § 1332. Id. at *9. The district

court examined the amounts of economic losses sustained by Plaintiffs and

found that the allegations amounted to “actual losses of $2,384.50 each for

the Pollocks and $954.21 for each of the Kutchers.” Id. Thus, rather than

allowing Plaintiffs to amend the complaint to raise the contract claims that

were supported by the facts alleged, the district court dismissed the action

for lack of jurisdiction. Id. The order effectuating the dismissal indicated

that it was without prejudice for Plaintiffs to refile the action in state court

under section 5103. Id. at *1.

      Plaintiffs unsuccessfully appealed the district court’s decision.      The

Third Circuit Court of Appeals held as follows.

            [Plaintiffs] have exercised a great deal of creativity in
      construing their claims as sounding in tort and statutory fraud.
      Yet, the inescapable fact is that the entire suit is grounded in
      their purchase of tickets, commonly regarded as revocable
      licenses, to a sporting event. The tickets created all of the
      obligations and duties owed by the [NFL] to [Plaintiffs]…. The
      essence of the suit is that [Plaintiffs] suffered damages because
      the [NFL] did not fulfill its obligation to give them access to
      particular seats during the 2011 Super Bowl game, as specified
      on their tickets. The contracts are inseparable from their claims.

            We conclude that, in spite of [Plaintiffs’] efforts to express
      their claims as negligent misrepresentation against the [NFL]…,
      these disputes sound in contract. Moreover, their contention
      that the [NFL] engaged in fraudulent misrepresentation and

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J-A07044-17


      fraudulent inducement are based upon, essentially, the same
      acts as the negligence counts, and their assertions of injury and
      pleas for relief inextricably arise from the alleged breach of the
      contracts at issue. The district court ruled that [Plaintiffs] had a
      remedy in contract law for any actual and consequential
      monetary losses.       We agree.       The district court properly
      dismissed all of these claims.

                                   ***

             Finally, without any legitimate basis to assert punitive
      damages, attorney’s fees, treble damages, or additional
      compensation for losing a “once in a lifetime opportunity” to
      view the sporting event from their promised seats, the pleadings
      do not provide any reasonable means for each [Plaintiff] to plead
      contractual damages that meet the jurisdictional threshold. 28
      U.S.C. § 1332(a). The district court appropriately assessed
      [Plaintiffs’] losses to be far below the statutory minimum and
      this reasonably grounded its decision to dismiss.

Pollock, 553 F. App’x at 270-71 (footnotes and unnecessary capitalization

omitted).

      From the above it is abundantly clear that Plaintiffs fully litigated their

tort claims in federal court and lost, not because the federal court

determined that it lacked jurisdiction over the tort claims, but because those

claims were not viable on their merits.      As Plaintiffs’ tort claims were not

dismissed because they filed them in the wrong court, section 5103 did not

preserve those claims for litigation in state court.4



4
  See, e.g., Lambert, 765 A.2d at 320 (“Section 5103 allows the federal
court to transfer an erroneously filed case to the Court of Common Pleas,
rather than dismissing it outright. The stated policy behind this section is to
preserve a claim or cause of action timely filed in federal court on the
ground that the claimant should not lose her opportunity to litigate the
merits of the claim simply because she erred regarding federal jurisdiction.
                                      -9-
J-A07044-17


      Rather, after transfer of the action to state court, Plaintiffs’ tort claims

were barred under the doctrines of res judicata, collateral estoppel, and/or

law of the case.5

             Under the doctrine of res judicata, or claim preclusion, a
      final judgment on the merits by a court of competent jurisdiction
      will bar any future action on the same cause of action between
      the parties and their privies. The doctrine therefore forbids
      further litigation on all matters which might have been raised
      and decided in the former suit, as well as those which were
      actually raised therein. Similarly, [t]he doctrine of collateral
      estoppel or issue preclusion prevents a question of law or an
      issue of fact that has once been litigated and fully adjudicated in
      a court of competent jurisdiction from being relitigated in a
      subsequent suit.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa.

Super. 2016) (internal citations and quotation marks omitted).

      While res judicata and collateral estoppel apply to bar relitigation of

claims or issues in a subsequent action that were subject to a final judgment

in a prior action, the law of the case doctrine exists to prevent a party from

relitigating claims or issues that have been resolved previously within the



Thus, the transfer statute ameliorates the hardship on litigants who
inadvertently file their action in the wrong place.”) (internal citations and
quotation marks omitted).
5
  The NFL argued, and the trial court agreed, that res judicata was applicable
to Plaintiffs’ proposed claims. However, given that this instant action is a
continuation of the federal action, rather than a second, subsequent action
initiated after the federal action was concluded, it is not clear that the
technical requirements of res judicata have been met. Therefore, we also
consider whether law-of-the-case doctrine supports the trial court’s exercise
of discretion in ruling upon Plaintiffs’ motion to amend. Plasticert, Inc. v.
Westfield Ins. Co., 923 A.2d 489, 492 (Pa. Super. 2007) (noting that this
Court may affirm the trial court on any valid basis).
                                     - 10 -
J-A07044-17


same action, either in a prior appeal or by a judge of coordinate jurisdiction.

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (“Among rules that

comprise the law of the case doctrine are that: (1) upon remand for further

proceedings, a trial court may not alter the resolution of a legal question

previously decided by the appellate court in the matter; (2) upon a second

appeal, an appellate court may not alter the resolution of a legal question

previously decided by the same appellate court; and (3) upon transfer of a

matter between trial judges of coordinate jurisdiction, the transferee trial

court may not alter the resolution of a legal question previously decided by

the transferor trial court.” (internal quotation marks and citation omitted)).

      All three doctrines are based upon similar policy determinations,

including the idea that a party should not get a second bite at the apple

when he or she had a full and fair opportunity the first time.       See, e.g.,

Lebeau v. Lebeau, 393 A.2d 480, 482 (Pa. Super. 1978) (“The policies

underlying both [res judicata and collateral estoppel] are the same: to

minimize the judicial energy devoted to individual cases, establish certainty

and respect for court judgments, and protect the party relying on the prior

adjudication from vexatious litigation.”); Plaxton v. Lycoming Cty. Zoning

Hearing Bd., 986 A.2d 199, 208 (Pa. Cmwlth. 2009) (“Collateral estoppel is

based on the policy that a losing litigant deserves no rematch after a defeat

fairly suffered, in adversarial proceedings, on an issue identical in substance

to the one he subsequently seeks to raise.”) (citation and internal quotation

                                     - 11 -
J-A07044-17


marks omitted); Commonwealth v. Gacobano, 65 A.3d 416, 419–20 (Pa.

Super. 2013) (“The various rules which make up the law of the case doctrine

serve not only to promote the goal of judicial economy ... but also operate

(1) to protect the settled expectations of the parties; (2) to insure uniformity

of decisions; (3) to maintain consistency during the course of a single case;

(4) to effectuate the proper and streamlined administration of justice; and

(5) to bring litigation to an end.”).

      Pursuant to the policies underlying the doctrines of res judicata,

collateral estoppel, and law of the case, Plaintiffs should not now be entitled

to a second chance to litigate their tort claims before a different tribunal.

Therefore, we hold that the trial court did not abuse its discretion in denying

Plaintiffs’ leave to reassert their tort claims in their second amended

complaint.6

      Having determined that the trial court did not err in refusing to allow

Plaintiffs to relitigate their tort claims, we consider whether the trial court

abused its discretion in denying Plaintiffs leave to amend their complaint to

state contract claims. As noted, the federal court dismissed Plaintiffs’ action

without prejudice for them to seek a remedy in state court for the NFL’s


6
  Our decision is not altered by the fact that the federal court dismissed the
action without prejudice for Plaintiffs to transfer the case to state court. It is
clear from the federal court opinions that the “without prejudice” language
referred to contract recovery, not the tort claims. See, e.g., Pollock, 553
F. App’x at 271 (“[T]he pleadings do not provide any reasonable means for
each [Plaintiff] to plead contractual damages that meet the jurisdictional
threshold.”).
                                        - 12 -
J-A07044-17


breach of its contracts with Plaintiffs. However, the trial court ruled that the

statute of limitations barred the breach of contract claims.        Trial Court

Opinion, 9/27/2016, at 4.

      Plaintiffs contend that they are entitled to relief from this Court under

one of the following theories: (1) the statute of limitations does not bar the

contract claims by virtue of the application of section 5103 because they

pled them in their original complaint in federal court, Plaintiffs’ Brief at 26;

or, in the alternative, (2) the addition of contract claims merely amplifies the

timely-filed allegations, id. at 33-34.

      We disagree.     Plaintiffs abandoned their contract claims in federal

court by filing an amended complaint omitting the contract claims. Hionis

v. Concord Twp., 973 A.2d 1030, 1036 (Pa. Cmwlth. 2009) (citing Freeze

v. Donegal Mut. Ins. Co., 470 A.2d 958, 960 n.5 (Pa. 1983)) (“An

amended complaint has the effect of eliminating the prior complaint.”).

Thus, there was no contract claim pending when the federal court dismissed

the action for lack of jurisdiction and Plaintiffs transferred the action from

federal court to state court in March 2014.     Plaintiffs consciously chose to

forego their contract claims in pursuit of higher-damage tort claims; they did

not lose the chance to seek a remedy for breach of contract “simply because

[they] erred regarding federal jurisdiction.” Lambert, 765 A.2d at 320. As

such, no contract claim transferred to state court when Plaintiffs effectuated

the transfer through section 5103.

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J-A07044-17


       The import of section 5103 to this case is that Plaintiffs’ original

complaint and amended complaint must be treated as if the action had been

litigated in state court from day one. Under section 5103, no claims stated

in the complaint but dismissed for lack of jurisdiction are barred by the

statute of limitations.   In other words, Plaintiffs’ motion for leave to file a

second amended complaint is subject to the same analysis as it would have

been had Plaintiffs filed the original complaint in the Allegheny County Court

of Common Pleas in February 2012, filed the amended complaint there in

June 2012 omitting the contract claims, and then sought to file another

amended complaint in April 2016, well beyond four years after Superbowl

XLV.

       Leave to amend a complaint is to be liberally granted; however,

“amendment is not permitted to present a new cause of action where the

statute of limitations has expired.” Blackwood, Inc. v. Reading Blue

Mountain & N. R. Co., 147 A.3d 594, 598 (Pa. Super. 2016).                  “An

amendment states a new cause of action where the amendment rests on a

different legal theory, basis for recovery or relationship between the parties

than did the original pleading.” Am. Motorists Ins. Co. v. Farmers Bank

& Trust Co. of Hanover, 644 A.2d 1232, 1235 (Pa. Super. 1994).

       It is beyond cavil that breach of contract is a different legal theory

than a tort claim.   See, e.g., B.G. Balmer & Co, 148 A.3d at 469 (“The

critical conceptual distinction between a breach of contract claim and a tort

                                     - 14 -
J-A07044-17


claim is that the former arises out of breaches of duties imposed by mutual

consensus agreements between particular individuals, while the latter arises

out of breaches of duties imposed by law as a matter of social policy.”). It is

also clear that the facts pled in Plaintiffs’ amended complaint filed in federal

court supported a breach of contract claim. Based upon this, Plaintiffs argue

that “it would be disingenuous for [the] NFL to claim the averments stated in

the last pleading filed in the federal court action … were insufficient to place

them on notice of the existence of the claim or that they would somehow be

prejudiced” by Plaintiffs’ pursuing the contract claim proposed in the second

amended complaint. Plaintiffs’ Brief at 31 n.5.

      What this Court finds disingenuous is Plaintiffs’ arguing that the NFL

should have expected to defend a claim for breach of contract after Plaintiffs

represented over and over again, in at least ten different filings in the

federal district and appellate courts, that there was no contractual

relationship between Plaintiffs and the NFL, that the operative complaint

stated no allegations of a contract, and that it would be impossible for

Plaintiffs to state any contract claim. See Trial Court Opinion, 9/27/2016, at

Attachment 1 (quoting four pages of Plaintiffs’ denials of a contract with the

NFL). Plaintiffs had ample opportunity to seek recovery from the NFL for its

failure to deliver the seats it agreed to provide to Plaintiffs. They chose and

persisted in pursuing an unviable path for recovery, and ultimately waited

too long to follow the proper one.

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      Upon this record, we conclude that the trial court acted within its

discretion in denying Plaintiffs’ leave to amend their complaint to state a

breach of contract claim.7

      Order affirmed.



7
  As an alternative argument, Plaintiffs contend that 42 Pa.C.S. § 5103 is
unconstitutionally vague in that it fails “to give fair notice of what a litigant
must do” to avoid the bar of the statute of limitations on cases transferred
from federal court. Plaintiffs’ Brief at 32. Because the record does not
indicate that Plaintiffs notified the attorney general of their constitutional
challenge to the statute as required by Pa.R.C.P. 235 and Pa.R.A.P. 521(a),
the claim is waived. See, e.g., In re A.H., 763 A.2d 873, 880 (Pa. Super.
2000). Plaintiffs argue that notice to the Attorney General was not required
because theirs is an as-applied rather than a facial challenge to the
constitutionality of the statute. Plaintiffs’ Reply Brief at 15-16. Even if we
were convinced that that is an accurate portrayal of Plaintiffs’ challenge, we
would still find waiver. Plaintiffs’ argument regarding the constitutionality of
section 5103 is woefully underdeveloped, failing to offer any discussion of
the applicable constitutional standards, let alone citation to compelling
authority to overcome the “strong presumption in the law that legislative
enactments do not violate the Constitution.” Commonwealth v. Packer,
798 A.2d 192, 199-200 (Pa. 2002). See also Wirth v. Commonwealth,
95 A.3d 822, 837 (Pa. 2014) (holding claim was waived for
underdevelopment).

  Moreover, Plaintiffs’ claim is patently meritless. Section 5103 operated to
give Plaintiffs precisely what its language indicated: treatment of the action
as if it had been filed in state court initially. Had Plaintiffs sought to amend
their complaint to state contract claims at the time the case was transferred
to state court, or at any time before February 2015, the statute of
limitations would not have expired. See 42 Pa.C.S. § 5525(a) (providing a
four-year statute of limitations for actions upon a contract). However,
Plaintiffs waited more than two years after the transfer before they sought
leave in April 2016 to add a contract claim. It was not any ambiguity in
section 5103 that deprived Plaintiffs of their right to pursue a remedy in
contract; rather, it was a lack of diligence in observing the deadline imposed
by the statute of limitations. That lack of diligence would have led to the
same result had the entirety of the litigation of the case taken place in state
court.
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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/21/2017




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