                          [J-41-2014] [MO: McCaffery, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


MICHAEL AND DEBORAH CONWAY,                 :   No. 80 MAP 2013
H/W,                                        :
                                            :   Appeal from the order of the Superior
                     Appellees              :   Court at No. 803 EDA 2012, dated
                                            :   November 5, 2012, reversing and
                                            :   remanding the order of the Bucks County
              v.                            :   Court of Common Pleas, Civil Division, at
                                            :   No. 2011-05465, dated February 15, 2012.
                                            :
THE CUTLER GROUP, INC. D/B/A THE            :
DAVID CUTLER GROUP, INC.,                   :
                                            :
                     Appellant              :   ARGUED: May 7, 2014


                                 CONCURRING OPINION


MR. JUSTICE BAER                                        DECIDED: August 18, 2014
      I join the Majority Opinion, which declines to extend the implied warranty of

habitability beyond the original purchaser of a newly constructed residence. I write

separately, however, to point out that the General Assembly has already acted to

protect subsequent home purchasers from defects in residential structures that affect

the habitability of the home by enacting the Real Estate Seller Disclosure Law

(“RESDL”), 68 Pa.C.S. §§ 7301-7315. Accordingly, I agree with the Majority that we

need not extend the implied warranty of habitability at this time, and that any further

protection afforded to subsequent buyers should be accomplished through legislation,

after examination of the policy considerations at issue.

      As cogently noted by the Majority, in 1972, this Court adopted the implied

warranty of habitability as applied to the original purchaser of a new home in the

seminal case of Elderkin v. Gaster, 288 A.2d 771 (Pa. 1972).           We reasoned that
purchasers justifiably rely on the skill of the developer who has a better opportunity to

examine the suitability of the home site and determine what measures should be taken

to provide a home fit for habitation. We opined that the doctrine of caveat emptor was

anachronistic as applied to the purchase of a new home, and that the position of the

builder dictates that he bear the risk that the home he has constructed will be functional

and habitable in accordance with contemporary community standards. Thus, we held

that “the builder-vendor impliedly warrants that the home he has built and is selling is

constructed in a reasonably workmanlike manner and that it is fit for the purpose

intended - habitation.” Id. at 777.

      Subsequent to our Elderkin decision, the General Assembly enacted the

comprehensive RESDL, which requires the seller, as opposed to the builder of a

residence, to disclose to the buyer “any material defects with the property.” 68 Pa.C.S.

§ 7303.   The RESDL enumerates sixteen subjects requiring disclosure, relating to

various aspects of the property, including, inter alia, the roof, basement, termites,

sewage, electrical and heating systems, as well as the presence of hazardous

substances.   Id. § 7304.    Significantly, the RESDL disclosure requirements do not

generally apply to a builder selling a home to the original purchaser, see id. § 7302

(providing that the RESDL does not generally apply to “[t]ransfers of new residential

construction that has not been previously occupied”). Rather, the original purchaser is

protected by the implied warranty of habitability.1 I presume the Legislature recognized




1 While I recognize that the RESDL does not (and obviously would not) require
divulgence of latent defects in the property unknown to the seller, the General
Assembly, nonetheless, afforded substantial protections to subsequent purchasers.
The fact that these considerable safeguards are couched as disclosures, rather than
warranties, reflects legislative prerogative.



                            [J-41-2014] [MO: McCaffery, J.] - 2
the judicially decreed warranty benefitting the first purchaser when it designated its

statutory protection of all subsequent home buyers.

      Given that the Legislature has created a comprehensive scheme to protect

subsequent home buyers from defects in residential structures that affect the habitability

of the home, I agree with the Majority that it is preferable for the General Assembly,

rather than this Court, to engage in the policy determinations involving expanding or

contracting available remedies to remote purchasers, which would purportedly reduce

or eliminate the need for the statutorily mandated disclosures.


      Mr. Justice Stevens joins this concurring opinion.




                           [J-41-2014] [MO: McCaffery, J.] - 3
