Appeal of summary judgment ruling quashed in stucco litigation

By Nicholas Malfitano | Jul 27, 2015

The Superior Court Of Pennsylvania President Judge John T. Bender  

HARRISBURG – The Superior Court of Pennsylvania has ruled against an appeal of a Dec. 22 decision of the Chester County Court of Common Pleas granting summary judgment to the defendant in a breach of contract lawsuit.

Judges John T. Bender, Susan Peikes Gantman and Paula Francisco Ott ruled in this case, with Bender writing the July 16 opinion voiding the appeal of Exton residents Joseph and Ann Worrell against Cutler Group, Inc., of Plymouth Meeting.

Alongside several other groups of plaintiffs, the Worrells commenced this litigation in 2010, asserting breach of contract, breach of express warranty, breach of implied warranty, and violation of the Unfair Trade Practices and Consumer Protection Law (UTPCPL).

According to the Worrells, Cutler Group constructed its homes using an inferior stucco cladding system, which permitted moisture infiltration resulting in structural damage to their homes.

In July 2011, the trial court sustained certain preliminary objections filed by Cutler Group, in effect dismissing the Worrells’ claims with prejudice. However, the Worrells filed a successful motion for reconsideration, which was granted in January 2013.

This reconsideration reversed the trial court’s prior decision and overruled the preliminary objections, thus reinstating the Worrells’ claims.

Throughout this period, settlement negotiations proceeded. According to court records, Cutler Group submitted settlement conference memoranda in March and December 2013. It was inferred that several of the other plaintiff groups agreed to settle with Cutler Group, but the Worrells were not among them.

In January 2014, the remaining plaintiffs were the Worrells and another couple named the Krishnans.

In April 2014, Cutler Group filed a motion for summary judgment in regards to the Worrells only, asserting their claims were precluded by a settlement agreement reached in a parallel case brought by the Worrells’ insurance carrier – but the trial court denied the motion, noting that the terms of the settlement agreement did not extend to claims for damages not reimbursed by their insurance. 

In September, Cutler Group filed a second motion for summary judgment, again limited to the Worrells. Cutler Group noted that the Worrells did not purchase their home directly from Cutler Group, and the absence of privity between the Worrells and Cutler extinguished the Worrells’ claims. This time, the trial court granted Cutler’s motion through this rationale, and dismissed the Worrells’ claims with prejudice. 

The Worrells summarily appealed, charging privity or the lack thereof did not preclude a claim under the UTPCPL. Bender explained in the Superior Court’s recent ruling that though there are exceptions, generally only final orders are subject to appeal.

“In February 2015, this Court issued a rule, directing the Worrells to show cause as to the basis of our jurisdiction to entertain their appeal,” Bender said.

“The Worrells responded, asserting: (1) At some point, the trial court had severed the remaining claims before it and (2) the Dec. 22 order disposed of all claims brought by the Worrells. Nevertheless, the Worrells acknowledged that no order of court, or docket entry, confirms a severance occurred.”

Bender stated the Superior Court reviewed the record and concurred with the Worrells’ beliefs that no severance of their claims existed.

“As acknowledged by the Worrells, nothing in the record confirms that the trial court severed the Worrells’ claims from others remaining before it. At the very least, the Krishnans maintain claims against Cutler,” Bender said.

“Thus, the Dec. 22 order is not final. Moreover, the trial court has not designated the Dec. 22 order final under circumstances in which an immediate appeal would facilitate resolution of the case. Accordingly, we quash.”

The appellants were represented by David S. Makara of Davis Bucco, in Conshohocken.

The appellee was represented by Nancy Jane Wright of McBride & Murphy, in Plymouth Meeting.

The Superior Court of Pennsylvania case 263 EDA 2015

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at

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