Super Bowl ticketholders lose effort to add claim to lawsuit over lost seats

By Shanice Harris | Jul 10, 2017

HARRISBURG – The state Superior Court has upheld a trial court's decision regarding seats at Super Bowl XLV that prevents the plaintiffs from filing a second amended complaint.

The plaintiffs in the case against the National Football League had appealed at September 2016 trial court decision that denied their motion to file a new complaint that would assert a breach of contract claim. The Superior Court affirmed that denial June 21.

Plaintiffs Richard Pollock, Cheryl Pollock, Paul Kutcher and Cynthia Kutcher were four ticketholders for Super Bowl XLV, which was held in Arlington, Texas, in February 2011. On the day of the event, the plaintiffs' seats were among the many that were temporary and not approved by safety authorities prior to the game. 

They were not allowed to watch the game from those seats and were allegedly not given adequate seating after they were told this. As a result, the plaintiffs filed a lawsuit for being denied access to their seats that they paid for and not being given adequate replacement seating.

The initial compliant was brought against the NFL and Dallas Cowboys Football Club LTD. The lawsuit raised tort claims that would allow the plaintiffs to receive recovery of damages, costs and attorney fees if won. The defendants filed a motion to dismiss, which caused the plaintiffs to amend their complaint to reassert their tort claims but drop their claim for breach of contract.

The defendants then filed another motion to dismiss in which they contended that all of plaintiffs’ claims in their amended complaint (which no longer included breach of contract claims) were barred by the gist of the action/economic loss doctrine.

The case then moved from Pittsburgh federal court to the Allegheny County Court of Common Pleas. After two years, the plaintiffs asked to file a second amended complaint to reassert the breach of contract claim.

The court denied the plaintiff’s motion, which caused a swift filing of a notice of appeal by the plaintiffs.

The Superior Court agreed with the lower court,, stating that the plaintiffs chose to forego their breach of contract claims to pursue a higher-damage tort claim. 

"It is also clear that the facts pled in Plaintiffs’ amended complaint filed in federal court supported a breach of contract claim," the opinion says. "Based upon this, Plaintiffs argue that 'it would be disingenuous for [the] NFL to claim the averments stated in the last pleading filed in the federal court action … were insufficient to place them on notice of the existence of the claim or that they would somehow be prejudiced' by Plaintiffs’ pursuing the contract claim proposed in the second amended complaint. 

"What this Court finds disingenuous is Plaintiffs’ arguing that the NFL should have expected to defend a claim for breach of contract after Plaintiffs represented over and over again, in at least ten different filings in the federal district and appellate courts, that there was no contractual relationship between Plaintiffs and the NFL, that the operative complaint stated no allegations of a contract, and that it would be impossible for Plaintiffs to state any contract claim. 

"Plaintiffs had ample opportunity to seek recovery from the NFL for its failure to deliver the seats it agreed to provide to Plaintiffs. They chose and persisted in pursuing an unviable path for recovery, and ultimately waited too long to follow the proper one."

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