J-A07022-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DANIEL J. SPELLMAN AND MARGARET                  IN THE SUPERIOR COURT OF
SPELLMAN                                               PENNSYLVANIA

                            Appellants

                       v.

BENJAMIN MOORE & CO.

                            Appellee                 No. 1112 WDA 2016


                 Appeal from the Judgment Entered July 1, 2016
               In the Court of Common Pleas of Allegheny County
                       Civil Division at No: GD 11-025063


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

MEMORANDUM BY STABILE, J.:                                 FILED JUNE 9, 2017

        Appellants/plaintiffs Daniel J. and Margaret Spellman, husband and

wife, appeal from the July 1, 2016 judgment entered in the Court of

Common Pleas of Allegheny County (“trial court”) against them and in favor

of Appellee/defendant Benjamin Moore & Co. (“Benjamin Moore”) in this civil

action. Upon review, we affirm.

        The facts and procedural history of this case are undisputed.1

Appellants purchased premium Natura paint (“Natura”) manufactured by

Benjamin Moore and used it to paint two walls in the family room of their


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Unless otherwise specified, these facts come from the trial court’s October
7, 2016 opinion.
J-A07022-17



home.   Thereafter, Appellants detected a foul odor emanating from the

painted walls. They eventually contacted Benjamin Moore and it dispatched

an employee, Dan Farinelli, to Appellants’ home to evaluate and remedy the

problem. Mr. Farinelli could not smell any odor in Appellants’ home, even

though he visited the home on two other occasions in 2010.

     Mr. Farinelli wanted to assist Appellants despite the fact that he

himself did not detect the fishy smell Appellants described to him.            Mr.

Farinelli, however, did inform Appellants that the “curing” period for Natura

was thirty days and that they might want to wait until the paint cured before

taking any further action. Appellants were not amenable to his suggestions.

     Mr. Farinelli then suggested painting over and resealing the walls with

another product.     Appellants also declined to entertain this suggestion.

Thereafter,   Mr.   Farinelli   called   a   chemist   at   Benjamin   Moore   who

recommended that a mixture of baking soda and water may be applied to

the walls to remedy the alleged odor problem. Appellants agreed with this

recommendation.

     Mr. Farinelli returned to Appellants’ home in late January 2010 and

applied the mixture to the two walls, despite the fact that he still did not

smell the alleged odor. Afterwards, Appellants called Benjamin Moore and

complained that the application of the mixture caused the odor to

exacerbate and expand into the rest of their home.                Not long after,

Appellants decided to leave their home permanently.             They did nothing




                                         -2-
J-A07022-17



further to address the alleged condition, other than to ventilate the home

occasionally.

      A few months later, Appellants hired a local company to test the

painted drywall as well as the air quality inside of their home for the

presence of volatile organic compounds (“VOCs”).     The test revealed only

trace amounts of VOCs, an amount which proved to be safe.         Appellants

nevertheless refused to live in the house.      They subsequently ordered

additional tests, which also revealed that the air in the home was healthy to

breathe.

      Appellants were not satisfied with the test results from the local

companies and sought out a company from Maryland to confirm their claims

that their home was unsafe because of Natura. The out-of-state company

performed a test, which likewise found the home to contain normal, safe air.

Nevertheless, the company prepared a computerized model, which did not

actually sample the air, or the Natura paint. The company was unaware of

the paint’s formula or any of its ingredients. Furthermore, the formula used

by the company assumed a toxicity level of January 10, 2010, the day

Appellants painted. The model was prepared two and one-half years later.

The company’s assumption of toxicity level was not based upon fact and the

company acknowledged that an unpleasant odor does not equate to the

presence of harmful toxins. The home was safe and the paint was harmless.




                                    -3-
J-A07022-17



        In 2016, Benjamin Moore retained another testing company to test for

VOCs and semi-VOCs. Nothing other than normal amounts found in nature

or any home was present in Appellants’ home.

        Nevertheless, Appellants persisted that they had been harmed by

Natura. Mr. Spellman sought no medical attention until more than two and

one-half years after painting his walls with Natura. He finally sought medical

attention after contracting a case of hives after playing golf. His physician

diagnosed hives related to contact dermatitis or the sun. Appellants though

claim that the hives were related to inhaling fumes from the paint.

Subsequently, the hives disappeared as the result of medical treatment. Mr.

Spellman also had a history of suffering from hives, one in particular

occurred twenty-two years prior to his painting with Natura and lasted one

year.

        Later, Mr. Spellman consulted with a Virginia physician, who gave him

a checkup and pronounced him normal, except for hives and a rash, and a

little swelling in his face and around his mouth. The doctor attributed the

symptoms to multiple chemical sensitivities, but could not tell that the

sensitivities were associated with Natura or any other source. He also did

not know the formulation of Natura paint.       Mr. Spellman underwent an

independent medical evaluation with an environmental and occupational

physician in the course of trial preparation who found that neither husband

nor wife had suffered an injury from Natura.




                                     -4-
J-A07022-17



        Natura was developed as an environmentally greener alternative to

traditional paint and was intended to eliminate as many VOCs as possible to

be virtually VOC free. It is formulated to contain odorless compounds. The

defoaming agent in Natura was simply canola oil. However, Benjamin Moore

received about sixty complaints about the odor out of half a million cans

sold.   Benjamin Moore investigated and, with the help of their supplier of

defoaming agent, the canola oil was found to be the cause of those few

complaints.      Benjamin Moore’s discovery occurred after Appellants had

applied the paint to the walls in their family room.        Only Appellants could

smell it in their own home. The canola oil was removed from Natura as a

result of Benjamin Moore’s investigation.

        Appellants instituted a civil action against Benjamin Moore. On July 7,

2014, Appellants filed an amended complaint, alleging, among other things,

causes of action for negligence, negligent misrepresentation, common law

fraud, and violations of Section 201-2(4)(v), and (vii) of the Unfair Trade

Practices Act and Consumer Protection Law (“UTPCPL”), 73 P.S. § 201–1, et

seq.2    Appellants specifically alleged that, on December 4, 2009, they

purchased Natura,        which Benjamin        Moore   “manufactures, distributes,
____________________________________________


2
  To the extent Appellants raise claims under Section 201-2(4)(ii) and (xxi)
on appeal, we decline to review them. Appellants failed to assert violations
under these subsections of the UTPCPL in their complaint or before the trial
court and, as a result, they may not raise violations of these subsections for
the first time on appeal. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).



                                           -5-
J-A07022-17



markets and sells.”    Amended Complaint, 7/7/14, at ¶¶ 3-5.        Appellants

alleged that they were induced into purchasing Natura because Benjamin

Moore marketed it “as a premium paint for its eco-friendly features,

including that the paint was “ZERO-VOC,” and “virtually odorless,” and “fast

drying.” Id. at ¶ 4. Appellants further alleged that on December 10, 2010,

they painted two walls in the family room in their home with two coats of

Natura. Id. at ¶ 7. Appellants alleged that the painted walls did not cure

properly, remained tacky, and emitted a “fishy or urine smell.” Id. Because

the mixture of baking soda and water worsened the odor, Appellants alleged

that they were forced to leave their home and relocate to a nearby motel.

Id. at ¶ 19. Appellants alleged that they suffered injuries and damages as a

result of the odor. Id. at ¶¶ 34-37.

      Appellants’ case ultimately proceeded to a jury trial. The jury heard all

of the above as evidence for Appellants. They were asked whether Benjamin

Moore fraudulently or negligently misrepresented their product as free of

VOCs and virtually odorless and fast drying, and whether Benjamin Moore

breached any warranty with regard to Natura. In relevant part, the jury’s

verdict slip reads as follows:

   1. Do you find that [Benjamin Moore] fraudulently misrepresented
      the paint product used in the home of [Appellants] and harm
      was factually caused to [Appellants]?

      ________                                                 ___X___
        YES                                                      NO

   2. Do you find that [Benjamin Moore] breached its warranty
      concerning the paint product used in the home of [Appellants]
      and harm was factually caused to [Appellants]?


                                       -6-
J-A07022-17


        ________                                                       ___X___
          YES                                                            NO

     3. Do you find that [Benjamin Moore] negligently misrepresented
        the paint product used in the home of [Appellants] and harm
        was factually caused to [Appellants]?

        ________                                                       ___X___
          YES                                                            NO


Jury Verdict Slip, 5/24/16. Thus, the jury found in favor of Benjamin Moore.

Appellants’ UTPCPL claim was submitted to the trial judge, who also found in

favor of Benjamin Moore.

        Appellants   timely    filed   post-trial   motions,   which   were   denied.

Appellants appealed to this Court. The trial court directed Appellants to file

a Pa.R.A.P. 1925(b) statement of errors complained of appeal.                    They

complied, raising four assertions of error.3           In response, the trial court

issued a Pa.R.A.P. 1925(a) opinion, denying each of Appellants’ claims.

        On appeal,4 Appellants raise four issues for our review:

        [I.] Did the trial court err in finding that Appellants did not
        establish by a fair preponderance of the evidence that [Benjamin
        Moore] violated the [UTPCPL]?

        [II.] With the denial of Appellants’ motion for post-trial relief,
        which included both a request for judgment notwithstanding the
        verdict and a motion for new trial, did the trial court err in
        finding Appellants did not establish by a fair preponderance of
        the evidence the claim of negligent misrepresentation?

        [III.] With the denial of Appellants’ motion for post-trial relief,
        which included both a request for judgment notwithstanding the
        verdict and a motion for new trial, did the trial court err in
____________________________________________


3
  Appellants’ assertions of error challenged only the trial court’s legal
conclusions.
4
    Appellants do not challenge the trial court’s factual findings.



                                           -7-
J-A07022-17


      finding that Appellants did not establish by a fair preponderance
      of the evidence that [Benjamin Moore] was negligent, which was
      not contradicted by any evidence presented by [Benjamin
      Moore]?

      [IV.] Did the trial court err in granting [Benjamin Moore’s]
      motions in limine so as to exclude evidence, testimony and
      documents as to the California litigation and blog posts
      associated with Natura paint?

Appellants’ Brief at 6 (unnecessary capitalization omitted).

      After careful review of the record and relevant case law, we conclude

that the trial court accurately and thoroughly addressed the merits of

Appellants’ issues on appeal.      See Trial Court Opinion, 10/7/16, at 5-9.

Accordingly, we affirm the trial court’s July 1, 2016 judgment. We further

direct that a copy of the trial court’s October 7, 2016 opinion be attached to

any future filings in this case.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/9/2017




                                      -8-
