J. A10002/17
                              2017 PA Super 285


KAREN ZAJICK, IN HER OWN RIGHT              :     IN THE SUPERIOR COURT OF
AND AS ASSIGNEE OF ROBERT AND               :          PENNSYLVANIA
ARLENE SANTHOUSE,                           :
                     APPELLANT              :
                v.                          :
                                            :
THE CUTLER GROUP, INC.                      :
                                            :
                                            :
                                            :     No. 1343 EDA 2016

                 Appeal from the Order Entered April 18, 2016
             In the Court of Common Pleas of Montgomery County
                      Civil Division at No(s): 2012-17179

BEFORE: DUBOW, J., SOLANO, J., and FORD ELLIOTT, P.J.E.

OPINION BY DUBOW, J.:                                 FILED AUGUST 31, 2017

      Appellant, Karen Zajick, appeals from the April 18, 2016 Order entered

in the Court of Common Pleas of Montgomery County which granted

summary judgment in favor of Appellee, The Cutler Group, Inc (“Cutler”).

Upon careful review, we conclude that there is no evidence that Appellant

justifiably relied on representations from Cutler regarding the construction of

Appellant’s specific home or alleged defective stucco, as is required to bring

a private cause of action under Pennsylvania’s Unfair Trade Practices and

Consumer Protection Law (“UTPCPL”), 73 P.S. §201-2, et seq. Accordingly,

we affirm.

      In 2003, Cutler built a stucco home at 7 Landon Way, Exton,

Pennsylvania,   and   sold   it   to   Robert   and   Arlene   Santhouse   (“the
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Santhouses”). In December 2008, Appellant purchased the home from the

Santhouses after having the property professionally inspected.

     Over two years later, in March 2011, Appellant noticed leaks in the

home, notified Cutler, and demanded that Cutler fix the leaks.      In June

2011, Appellant hired a stucco inspector to conduct a stucco inspection and

moisture analysis of the home.    The inspector concluded that the home’s

stucco system was defective and recommended stucco replacement.

     On August 17, 2012, Appellant filed a Complaint bringing claims

against Cutler for breach of contract, breach of express and implied

warranties, and violations of Pennsylvania’s UTPCPL, seeking damages

arising from the purchase of the home.

     Cutler subsequently filed a Motion for Judgment on the Pleadings

seeking dismissal of all four causes of action.   On June 3, 2015, the trial

court granted the Motion in part, and dismissed all claims except the UTPCPL

claim. The trial court denied the Motion as it pertained to the UTPCPL claim

based on representations from Appellant at argument that discovery was

ongoing and that she would ultimately obtain the evidence necessary to

support her UTPCPL cause of action.

     On November 9, 2015, after the discovery deadline, Cutler filed a

Motion for Summary Judgment.       In response, Appellant filed an Answer

admitting that she never had any communication with Cutler regarding the

home. Additionally, Appellant submitted an affidavit stating that in making



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the decision to purchase the home, she relied upon Cutler’s reputation in the

community, her own personal experience purchasing and inhabiting another

home built by Cutler, and general representations made by one of Cutler’s

sales representatives several years earlier when Appellant was purchasing a

previous home directly from Cutler. Appellant did not provide the trial court

with any representations from Cutler regarding the specific home at issue or

the stucco system used to construct the home. On April 18, 2016, after oral

argument, the trial court granted the Motion and dismissed Appellant’s only

remaining claim for violations of UTPCPL.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      Appellant raises the following issue on appeal:         “Whether the trial

court committed an error of law in granting [Cutler]’s Motion for Summary

Judgment and dismissing Appellant’s Complaint asserting a cause of action

for [Cutler]’s Violation of the Pennsylvania [UTPCPL], 73 P.S. § 201-1 et

seq.” Appellant’s Brief at 4 (some capitalization omitted).

      We review a trial court’s grant of summary judgment for an error of

law or an abuse of discretion. Summers v. Certainteed Corp., 997 A.2d

1152, 1159 (Pa. 2010). A trial court may grant summary judgment “only in

those cases where the record clearly demonstrates that there is no genuine

issue of material fact and that the moving party is entitled to judgment as a

matter of law.” Summers, supra at 1159 (citation and quotation omitted);



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see also Pa.R.C.P. No. 1035.2. Whether any genuine issues of material fact

exist is a question of law and, therefore, subject to a de novo standard of

review. DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 587 (2013). This

Court must view the record in the light most favorable to the non-moving

party, and any doubt regarding the existence of a genuine issue of material

fact must be resolved against the moving party. Toy v. Metropolitan Life

Ins. Co., 928 A.2d 186, 195 (Pa. 2007). The failure of a non-moving party

to present sufficient evidence on an issue essential to his case, when the

non-moving party bears the burden of proof, establishes the entitlement of

the moving party to judgment as a matter of law.      Cigna Corp. v. Exec.

Risk Indem., Inc., 111 A.3d 204, 210 (Pa. Super. 2015). Finally, a trial

court may only grant summary judgment in cases that are clear and free

from all doubt. Toy, supra at 195.

     Instantly, Appellant challenges the court’s dismissal of her UTPCPL

claim. See Appellant’s Brief at 10. The UTPCPL is Pennsylvania's consumer

protection law, which serves the purpose of protecting the public from unfair

or deceptive business practices.   DeArmitt, supra at 591.      The UTPCPL

explicitly authorizes a private cause of action for anyone who purchases

goods primarily for personal, family, or household purposes and “suffers any

ascertainable loss of money or property” as a result of any person employing

an unlawful method, act, or practice. 73 P.S. §201-9.2(a).




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      In order to bring a private cause of action under the UTPCPL, “a

plaintiff must show that he justifiably relied on the defendant's wrongful

conduct or representation and that he suffered harm as a result of that

reliance.” Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438

(Pa. 2004) (emphasis added). Strict technical privity is not required to bring

a cause of action under the UTPCPL.            Valley Forge Towers Smith

Condominium v. Ron-Ike Foam Insulators, Inc., 574 A.2d 641, 647 (Pa.

Super. 1990).

      Appellant argues that because the UTPCPL does not require privity of

contract for a claimant to assert a cause of action against the builder and

seller of residential real estate, the trial court erred in dismissing the claim

on this basis. See Appellant’s Brief at 10.

      Contrary to Appellant’s characterization, the trial court did recognize

that Appellant could have standing to bring a claim against Cutler under the

UTPCPL despite not having privity of contract.         See Trial Court Opinion,

dated 10/21/16, at 4.     Notwithstanding, the trial court granted summary

judgment    after   concluding   that    Appellant   “failed   to   establish   any

representations made by [Cutler] that rise to the level of representations

upon which reasonable justifiable reliance is foreseeable.” See id. at 5. We

agree.

      In Adams v. Hellings Builders, Inc., 146 A.3d 795 (Pa. Super.

2016), a case cited by Appellant, this Court held that strict technical privity



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is not required to assert a cause of action under the UTPCPL, rather the

“focus is on whether reliance on alleged misrepresentations was specially

forseeable.” Id. at 801.

     In Adams, the plaintiffs purchased a home and subsequently brought

a claim under the UTPCPL, alleging that the sales agreement between the

builder and the initial purchasers represented that the home would include a

three-coat stucco system according to International Residential Code

Standards.     However, upon inspection by plaintiff’s expert, the stucco

system did not comply with those standards. Id. The plaintiffs alleged that

they had justifiably relied on this sales agreement when they decided to

purchase the home. Id. On appeal, this Court determined that these facts

were sufficient to support a private cause of action under the UTPCPL

because the complaint alleged that the builder made representations about

the home and stucco system in the sales agreement, and it was foreseeable

that plaintiffs would justifiably rely on those representations.   Adams,

supra at 801-802.

     In contrast to the plaintiffs in Adams, Appellant did not produce any

evidence that Cutler made representations about the specific home at issue

or the alleged defective stucco to her or the previous purchasers. In fact,

Appellant concedes “she never had any communication with Cutler regarding

this home prior to purchasing it from the Santhouses.” Plaintiff’s Answer to

Defendant’s Motion for Summary Judgment at ¶20 (emphasis added).



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Rather, Appellant’s affidavit submitted in opposition to Cutler’s Motion for

Summary Judgment states that Appellant relied on (1) the “reputation” of

Cutler as an “experienced, reliable, reputable builder of custom homes[;]”

(2) the experience Appellant had in purchasing and inhabiting her previous

home, which was built by Cutler and did not exhibit latent construction

defects; and (3) “the representations of Wendy Dunlop, who was employed

as a sales representative by [Cutler] as to the construction and quality of the

homes in the Reserve at Malvern[,]” the same development as the home at

issue, when Appellant was in the process of purchasing her previous home

directly from Cutler and toured homes there. Affidavit of Karen Zajick, filed

12/3/15.

      There is no legal basis to allow Appellant’s claim to move forward

based solely on her reliance on Cutler’s reputation and general statements

from a sales representatives about homes in the same development.

      Since    Appellant   failed   to    establish   that   Cutler   made   any

representations about her specific home or the alleged defective stucco, the

trial court properly found that she failed as a matter of law to present

evidence that she “justifiably relied” on “representations” of Cutler.

Accordingly, we conclude that the trial court did not abuse its discretion or

err as a matter of law when it granted summary judgment in favor of Cutler.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/31/2017




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