Valley Forge Towers South Condominium v. Ron-Ike Foam Insulators, Inc.
| Decision Date | 01 May 1990 |
| Docket Number | RON-IKE |
| Citation | 393 Pa.Super. 339,574 A.2d 641 |
| Court | Pennsylvania Superior Court |
| Parties | VALLEY FORGE TOWERS SOUTH CONDOMINIUM, Appellant, v.FOAM INSULATORS, INC. Mameco International, Inc., Appellee. |
Adrienne Provenzano, Philadelphia, for appellee.
Before McEWEN, KELLY and POPOVICH, JJ.
In this appeal we are called upon to determine whether a cause of action by a residential condominium association against roofing membrane manufacturer exists under the Pennsylvania Unfair Trade Practices and Consumer Protection Law (Pa.U.T.P.C.P.L.) 1 when the roofing membrane was sold by the manufacturer to a contractor for the reroofing of the condominium association's building, the roof warranty was issued directly to the residential condominium association by the manufacturer, and the warranty on the roofing membrane subsequently was not honored by the manufacturer. The trial court found that no cause of action existed. We reverse.
The relevant facts and procedural history are as follows. The appellant, Valley Forge Towers South Condominium (the Condominium Association), which is an incorporated non-profit condominium association, entered into a contract with Ron-Ike Inc. (Ron-Ike) pursuant to its statutory authorization to act as representative of the individual condominium unit owners. See 68 Pa.C.S.A. § 3302(a)(5). In the contract Two years later, the roof began to leak. The Condominium Association immediately notified both Ron-Ike and Mameco of the leaky roof, and requested that both parties honor their respective warranties and repair the roof. The Condominium Association asserts that Ron-Ike made one attempt to repair the leaky roof, but was unsuccessful; and that after that unsuccessful attempt, neither Ron-Ike nor Mameco would respond to the association's further requests that they repair the roof. The Condominium Association further asserts that it then proceeded to replace the roof at a cost of $408,000.
Ron-Ike specified that it would install a roofing membrane manufactured by the appellee, Mameco International Incorporated (Mameco), and that after the completion of the roof Mameco would send the Condominium Association a warranty guaranteeing the membrane for 10 years. Ron-Ike completed the roof in late 1984, and Mameco subsequently issued a 10-year warranty directly to the Condominium Association.
The Condominium Association, again acting as the legally authorized representative of the unit owners (68 Pa.C.S.A. § 3302(a)(4)), then commenced the instant litigation against both Ron-Ike and Mameco setting forth the following causes of action against both corporations: breach of express warranty, breach of implied warranty of merchantability, breach of implied warranty of fitness for a particular purpose, and a private cause of action under 73 P.S. § 201-9.2 of the Pa.U.T.P.C.P.L. (which grants trial courts discretion to award treble damages on proof of an unlawful, unfair or deceptive practice as defined by the statute, including failure to honor a written warranty, 73 P.S. § 201-2(4)(xiv)).
Mameco filed preliminary objections in the nature of a demurrer which asserted that the Condominium Association was not a "purchaser" from Mameco under the Pa.U.T.P.C.P.L.; and even if it was, the purchase of the replacement roof was not for "personal, family, or household use" within the meaning of those terms as used in the Pa.U.P.T.C.P.L. Mameco reasoned that its demurrer should be sustained on both grounds, as proof of those facts were essential in setting forth a private action for treble damages under the Pa.U.T.P.C.P.L. The Condominium Association responded that it had pled sufficient facts to present a claim that it was a "person," who "purchased" a replacement roof, "primarily for personal, family, or household use," within the meaning of those terms as used in the Pa.U.T.P.C.P.L.
The trial court sustained the demurrer. In doing so, it found that there was a lack of privity between the Condominium Association and Mameco; and therefore, the condominium association was not a "purchaser" from Mameco for the purposes of the Pa.U.T.P.C.P.L. The trial court found, alternatively, that the Condominium Association purchased the replacement roof in furtherance of its business purpose of managing a residential condominium complex, and that such a purchase was not "primarily for personal, family, or household purposes" as required to fall within the ambit of 73 P.S. § 201-9.2 of the Pa.U.T.P.C.P.L. This timely appeal followed.
In its Pa.R.A.P. 1925(a) opinion the trial court opined that the dismissal of the Pa.U.T.P.C.P.L. count against Mameco was an unappealable interlocutory order. The trial court characterized this count as merely a different theory of recovery against Mameco on its breach of warranty claim against Mameco. Trial Court Opinion at 2.
The trial court cited Cloverleaf Development Inc. v. Horizon Financial FA, 347 Pa.Super. 75, 500 A.2d 163 (1985), in support of the general proposition that an order dismissing separate counts which merely assert alternate theories of recovery on a surviving cause of action, rather than dismissing a separate cause of action, is interlocutory and unappealable. So far, we agree. The trial court then proceeded to find that an action under 73 P.S. § 201-9.2 merely states an alternate theory in support of the breach of warranty claims To the contrary, however, this Court applying the test set forth in Cloverleaf Development, has twice held that a cause of action under the Pa.U.T.P.C.P.L. is separate and distinct from breach of contract causes of action arising from the same facts. See Gordon v. Pennsylvania Blue Shield, 378 Pa.Super. 256, 548 A.2d 600 (1988); Hardy v. Pennock Ins. Co., 365 Pa.Super. 206, 529 A.2d 471 (1987); cf. Neff v. Lasso, 382 Pa.Super. 487, 492 n. 2, 555 A.2d 1304, 1306 n. 2 (1989). Likewise, we find the instant cause of action under 73 P.S. § 201-9.2 to be separate from the three breach of warranty claims which survived. 2 Hence, the appeal is properly before this Court for review.
which survived. No authority was cited for this proposition.
Our standard of review of an order granting preliminary objections in the nature of a demurrer is well-settled, and has been summarized as follows:
All material facts set forth in the pleadings as well as all inferences reasonably deducible therefrom are admitted as true for the limited purpose of this review. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. In reviewing the grant of a demurrer we are not bound by the inferences drawn by the trial court, nor are we bound by its conclusions of law. Furthermore, we will affirm the grant of such a motion only when the moving party's right to succeed is certain and the case is so free from doubt that further proceedings would clearly be fruitless.
Ford Motor Credit Co. v. Caiazzo, 387 Pa.Super. 561, 566, 564 A.2d 931, 933 (1989) (collecting cases). Finally, "the novelty of a claim or theory, alone, does not compel affirmance." Neff v. Lasso, supra, 555 A.2d at 1305.
III. Pa.U.T.P.C.P.L. GENERALLY
The legislative intent in enacting the Pa.U.T.P.C.P.L. was to enhance the protection of the public from unfair or deceptive business practices. Gabriel v. O'Hara, 368 Pa.Super. 383, 388 & n. 6, 534 A.2d 488, 491 & n. 6 (1987). The principle enhancements of pre-existing common law protections included the codification of a list of practices designated as "unfair or deceptive" and therefore "unlawful" (73 P.S. §§ 201-2, 201-3), authorization of the Pennsylvania Attorney General to take several specific types of action to protect the citizenry from such practices (73 P.S. §§ 201-3.1 to 201-9.1), and authorizing a private cause of action by private parties for treble damages in certain circumstances (73 P.S. § 201-9.2). The central underlying intent was fraud prevention, and the act must be construed liberally to effectuate that remedial intent. See Commonwealth v. Monumental Properties, 459 Pa. 450, 329 A.2d 812, 815-17 (1974); Gabriel v. O'Hara, supra, 534 A.2d at 491; Culbreth v. Lawrence Miller, Inc., 328 Pa.Super. 374, 477 A.2d 491 (1984).
In this case we are concerned with a private cause of action for treble damages under 73 P.S. § 201-9.2(a) which provides:
§ 201-9.2 Private Actions
(a) Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by any person of a method, act or practice declared unlawful (Emphasis added). A claimant under this section must not only have suffered an ascertainable loss as the result of an "unfair or deceptive act," but also must be: a "person," who made a "purchase," "primarily for personal, family, or household purposes." Though the principal dispute here centers on the second and third requirements, we shall consider all three in resolving the question as to whether the trial court abused its discretion or committed an error of law in sustaining Mameco's demurrer.
by section 3 of this act, may bring a private action, to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper.
IV. "PERSON" UNDER THE Pa.U.T.P.C.P.L.
Neither Mameco nor the trial court questioned the Condominium Association's status as a "person," under the Pa.U.T.P.C.P.L. Nonetheless, as w...
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