HARRISBURG – The Superior Court of Pennsylvania has reinstated a couple’s complaint against a building company that allegedly applied stucco improperly, causing moisture infiltration and subsequently, the presence of mold in their home.

On Aug. 29, judges Mary Jane Bowes, Judith Ference Olson and Eugene B. Strassburger III of the Superior Court overturned preliminary objections which were approved by the Chester County Court of Common Pleas in April 2015, which dismissed a complaint filed by Christopher Adams and Margaret A. Adams against Hellings Builders, Inc.

The trial court summarized the cause of action as follows:

“In 2011, plaintiffs purchased a home from the Witsky family, none of whom is a party to this action. The Witskys bought the home as a newly constructed dwelling from Hellings in 2008. In 2014, plaintiffs noticed that other homes in the neighborhood were being tested for moisture,” read documents from the Chester County Court of Common Pleas.

“Armed only with this observation, plaintiffs decided to hire a company to conduct infrared testing on their home to test for moisture infiltration. According to plaintiffs, the testing results indicated possible moisture infiltration and the possible presence of mold due to the improper application of stucco.”

Based on this information, the plaintiffs filed suit against Hellings alleging violation of the Unfair Trade Practices and Consumer Protection Law [UTPCPL] – however, the trial court sustained Hellings’ preliminary objections and dismissed the complaint, based on a rationale at the time of the plaintiffs not having any direct contact with Hellings in the purchase of the home or in addressing these mold issues.

The plaintiffs subsequently appealed.

The plaintiffs said they pled their case based on Hellings’ representation of their high standard for homebuilding and had standing to bring forth a case against the defendant based on a perceived misrepresentation of that standard, by Hellings.

“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 homebuilder 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,” the plaintiffs argued.

“Similarly, plaintiffs 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, plaintiffs suffered moisture infiltration damage to their home from defective stucco installation,” Olson said.

Olson stated it was the view of the Superior Court that the Chester County Court of Common Pleas did mistakenly dismiss the plaintiffs’ complaint, because technical privity is no longer required to assert a violation of the UTPCPL.

“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 plaintiffs,” Olson said. “In Woodward, we specifically determined that a third-party purchaser of property is especially foreseeable. Moreover, reviewing all material facts set forth in plaintiffs’ complaint as true, as well as all inferences reasonably deducible therefrom, as our standard requires, plaintiffs allege that Hellings generally represented, in printed materials and on Hellings’ own website, that it was a reputable builder touting superior quality and construction.”

Olson added, “In support of both their fraud and UTPCPL claims, plaintiffs assert that they justifiably relied upon Hellings’ misrepresentations in purchasing the home. Accordingly, based upon our standard of review and the prevailing law, we conclude that plaintiffs’ claims should not have been dismissed on preliminary objections.”

The Superior Court then vacated the trial court order, reinstated the plaintiffs’ complaint and remanded the case to the trial court for further proceedings.

Superior Court of Pennsylvania case 1407 EDA 2015

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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