Levy, C. v. Johnson, R.

• Court: Superior Court of Pennsylvania
• Decided: April 11, 2016
• Docket: 1016 EDA 2015
• Status: Unpublished

Opinion

J-A03031-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAROL LEVY IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

ROBERT JOHNSON AND IMPERIAL HOME INSPECTIONS, LLC

Appellees No. 1016 EDA 2015

Appeal from the Order Entered April 9, 2015 In the Court of Common Pleas of Montgomery County Civil Division at No(s): 2013-27083

BEFORE: GANTMAN, P.J., MUNDY, J., and DUBOW, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 11, 2016

Appellant, Carol Levy, appeals pro se from the order entered in the

Montgomery County Court of Common Pleas, granting judgment on the

pleadings in favor of Appellees Robert Johnson and Imperial Home

Inspections, LLC, and dismissing Ms. Levy’s complaint with prejudice. We

affirm.

The trial court set forth the relevant facts and procedural history of

this case as follows:

[Ms. Levy] initiated the underlying suit, sounding in breach of contract and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 [P.S.] § 201-2 (“UTPCPL”), for alleged damages arising from a home inspection conducted by Mr. Johnson. The home inspection in question was conducted on December 6, 2010 at the property located at the address of 419 York Avenue, Lansdale, Pennsylvania 19336 in anticipation of J-A03031-16

[Ms. Levy’s] purchase. [Ms. Levy] received the home inspection report on the same day.[1] [Ms. Levy] subsequently had another inspection performed on February 5, 2011 by Daybreak Home Inspections, Inc. Around this time, [Ms. Levy] retained counsel who informed [Appellees] on August 9, 2011, that [Ms. Levy] had a claim relating to the December 6, 2010 inspection. Despite initially retaining counsel in 2011, [Ms. Levy] elected to proceed pro se and filed her Complaint on August 30, 2013, more than two years and eight months after [Mr. Johnson] conducted and delivered the initial home inspection report to [Ms. Levy], and more than two years after [Ms. Levy], through then counsel, put [Appellees] on notice of her claim.

On October 17, 2013, the Montgomery County Prothonotary entered default judgment against [Appellees] in the amount of $50,000.00. On October 30, 2013, [Appellees] filed a Petition to Open the Default Judgment, which the [c]ourt granted. Thereafter, on May 27, 2014, [Appellees] filed their Answer and New Matter and [Ms. Levy] replied on June 13, 2014. On June 17, 2014, [Appellees] filed a Motion for Judgment on the Pleadings. After argument, the [c]ourt granted [Appellees’] Motion by Order [filed] April [9], 2015, and dismissed [Ms. Levy’s] Complaint. [Ms. Levy] timely filed a Notice of Appeal on April 14, 2015. On May 7, 2015, [Ms. Levy] timely filed and served upon the undersigned a Concise Statement of [Errors] Complained [o]f [o]n Appeal (“1925(b) Statement”).

(Trial Court Opinion, filed September 10, 2015, at 1-2) (internal footnote

omitted).

Ms. Levy raises five issues for our review:

DID THE TRIAL COURT ERR AS A MATTER OF LAW IN ____________________________________________

1 Ms. Levy claims on appeal that she received the home inspection report via e-mail two days after the home inspection. The difference in these dates is immaterial to our disposition.

-2- J-A03031-16

HOLDING ON SUMMARY JUDGMENT[2] THAT PENNSYLVANIA LAW DOES NOT RECOGNIZE [MS. LEVY’S] CLAIMS AGAINST A HOME INSPECTOR ([APPELLEES] ROBERT JOHNSON AND IMPERIAL HOME INSPECTIONS, LLC) THAT WERE SEPARATE AND DISTINCT FROM THE WRITTEN INSPECTION REPORT?

DID THE TRIAL COURT ERR BY HOLDING ON SUMMARY JUDGMENT THAT THE SILENCE OF THE LEGISLATORS ON ALL BUT A “WRITTEN” HOME INSPECTION REPORT PRECLUDES ANY/ALL OTHER ACTIONS, CLAIMS THAT ARISE OUTSIDE OF THE WRITTEN REPORT?

DID THE TRIAL COURT ERR IN FINDING THAT ALL ASSERTIONS BY [MS. LEVY] AGAINST [APPELLEES] AROSE OUT OF THE WRITTEN HOME INSPECTION REPORT DESPITE REPEATED ASSERTIONS, AVERMENTS TO THE CONTRARY BY [MS. LEVY]?

DID THE TRIAL COURT ERR IN FINDING THAT THE PROVISIONS UNDER THE PENNSYLVANIA HOME INSPECTION LAW RELATING TO THE UTPCPL PRECLUDED ALL OTHER CLAIMS UNDER THE UTPCPL THAT DO NOT ARISE OUT OF THE WRITTEN HOME INSPECTION REPORT?

AS PRO SE WERE [MS. LEVY’S] PLEADINGS, STATEMENT OF FACTS, ET AL., SO PROBLEMATIC AS TO BE A FATAL FLAW IN THE COURT’S OPINION?

(Ms. Levy’s Brief at 2-3).

After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Thomas C.

Branca, we conclude Ms. Levy’s issues merit no relief. The trial court opinion

properly disposes of the questions presented. (See Trial Court Opinion at 2- ____________________________________________

2 Notwithstanding the phrasing of Ms. Levy’s questions presented, her appeal lies from the order granting Appellees’ motion for judgment on the pleadings, not from an order granting summary judgment.

-3- J-A03031-16

8) (finding: Mr. Johnson conducted home inspection of property at issue on

December 6, 2010; Ms. Levy hired Daybreak Home Inspections to perform

second inspection after she already purchased and moved into home;

Daybreak delivered home inspection report to Ms. Levy on February 5, 2011,

which revealed presence of knob-and-tube wiring in Ms. Levy’s home;

despite discovering presence of knob-and-tube wiring in her house following

Daybreak’s inspection and retaining counsel by August 2011, Ms. Levy failed

to file her complaint against Appellees until August 30, 2013, more than two

years and eight months after original December 2010 home inspection; Ms.

Levy’s claims are governed by Home Inspection Law and subject to Home

Inspection Law’s one-year statute of limitations (“SOL”); Ms. Levy attempts

to circumvent this SOL by insisting her claims are not premised on written

inspection report, but rather on Mr. Johnson’s representations that he was

qualified home inspector on which Ms. Levy relied when purchasing home;

nevertheless, any fair reading of Ms. Levy’s complaint makes clear this

action arises from Mr. Johnson’s home inspection; Home Inspection Law is

comprehensive regulation demonstrating legislature’s intent to preempt

application of other laws to home inspections; consequently, specific SOL set

forth in Home Inspection Law applies to this case over general UTPCPL or

breach of contract SOL; Home Inspection Law contemplates actions by home

inspectors which might be deemed violations of UTPCPL; as to those

enumerated actions which might constitute violations of UTPCPL, SOL in

-4- J-A03031-16

Home Inspection Law still controls; thus, Ms. Levy’s complaint is time-

barred, and court properly granted judgment on pleadings in favor of

Appellees and dismissed Ms. Levy’s complaint).3 Accordingly, we affirm on

the basis of the trial court’s opinion.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 4/11/2016

____________________________________________

3 Even giving Ms. Levy the benefit of the “discovery rule,” her claims would still be time-barred as she filed her complaint more than one year after receiving the home inspection report from Daybreak on February 5, 2011, which disclosed the presence of knob-and-tube wiring and other alleged defects in Ms. Levy’s home. See generally Weik v. Estate of Brown, 794 A.2d 907 (Pa.Super. 2002), appeal denied, 572 Pa. 709, 813 A.2d 844 (2002) (explaining “discovery rule” is judicially created device which tolls running of applicable statute of limitations until point when plaintiff knows or reasonably should know she has been injured and that her injury has been caused by another party’s conduct; limitations period begins to run when injured party possesses sufficient critical facts to put her on notice that wrong has been committed and that she needs to investigate to determine whether she is entitled to redress).

-5- Circulated 03/24/2016 01:59 PM

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA CIVIL ACTION - LAW

CAROL J. LEVY NO. 2013-27083 Plaintiff 1016 EDA 2015 v.

ROBERT JOHNSON AND IMPERIAL HOME INSPECTIONS, LLC 1111,i;M~,:~1DIIII 2013-27083-0040 9110/2015 2:47 PM # 10468245 Opinion Defendants Rcpt#Z2514661 Fee:$0.00 Mark Levy • MontCo Prothonotary OPINION

Branca, J. September 10, 2015

I. INTRODUCTION

Carol J. Levy ("Plaintiff') prose appeals from this Court's Order, dated April 8, 2015,1

granting Defendants, Robert Johnson and Imperial Home Inspections, LLC's ("Mr. Johnson" and

"Imperial") Motion for Judgment on the Pleadings and dismissing Plaintiffs Complaint. For the

reasons that follow, Plaintiffs appeal is without merit and the Court's Order dated April 8, 2015

should be AFFIRMED.

II. STATEMENT OF THE CASE

Plaintiff initiated the underlying suit, sounding in breach of contract and violations of

Pennsylvania's Unfair Trade Practices and Consumer Protection Law, 73 Pa. C.S. § 201-2

("UTPCPL"), for alleged damages arising from a home inspection conducted by Mr. Johnson.

The home inspection in question was conducted on December 6, 2010 at the property located at

the address of 419 York Avenue, Lansdale, Pennsylvania 19336 in anticipation of Plaintiffs

purchase. Plaintiff received the home inspection report on the same day. Plaintiff subsequently

had another inspection performed on February 5, 2011 by Daybreak Home Inspections, Inc.

Around this time, Plaintiff retained counsel who informed Defendants on August 9, 2011 that

1 [Order, 4/9/15].

( ' Plaintiff had a claim relating to the December 6, 2010 inspection. Despite initially retaining

counsel in 2011, Plaintiff elected to proceed pro se and filed her Complaint on August 30, 2013,

more than two years and eight months after Defendant conducted and delivered the initial home

inspection report to Plaintiff, and more than two years after Plaintiff, through then counsel, put

Defendant on notice of her claim.

On October 17, 2013, the Montgomery County Prothonotary entered default judgment

against Defendants in the amount of $50,000.00. On October 30, 2013, Defendants filed a

Petition to Open the Default Judgment, which the Court granted. Thereafter, on May 27, 2014,

Defendants filed their Answer and New Matter and Plaintiff replied on June 13, 2014. On June

17, 2014, Defendants filed a Motion for Judgment on the Pleadings. After argument, the Court

granted Defendants' Motion by Order dated April 8, 2015, and dismissed Plaintiffs Complaint.

Plaintiff timely filed a Notice of Appeal on April 14, 2015. On May 7, 2015, Plaintiff timely

filed and served upon the undersigned a Concise Statement of Matters Complained Of On

Appeal ("l 925(b) Statement'tj.'

III. DISCUSSION

Plaintiffs 1925(b) Statement, which is neither concise nor easy to interpret.' is primarily

a rehashing of the arguments raised by Plaintiff in her Memorandum of Law in Support of her

Answer to Defendants' Motion for Judgment on the Pleadings, likewise inartfully drafted. As

best as can be discerned from the three (3) page l 925(b) Statement, Plaintiff asserts that she

justifiably relied on Defendant, Mr. Johnson's representation that he was qualified and had the

requisite knowledge to perform her home inspection, when in fact Mr. Johnson concealed his

lack of knowledge which facts arise to the level of fraud supporting her Complaint for Breach of

2 See Pa. R.A.P. 1925(b). 3 [See Pl.'s t925(b) Statement, at *2 (commencing with a sentence fragment)].

2 Contract and violation of the UTPCPL; which claims were timely filed within the respective

applicable statutes of limitation.

A. Standardof Review

The standard of review applicable to a Court's grant of a motion for judgment on the

pleadings is plenary. The Appellate Court shall apply the same standard employed by the Trial

Court and confine its consideration to the pleadings and relevant documents, accept as true all

well-pleaded statements of fact, admissions, and any documents properly attached to the

pleadings presented by the party against whom the motion is filed, considering only those facts

which were admitted. Cubler v. TruMark Fin. Credit Union, 83 A3d 235, 239 (Pa. Super. Ct.

2013). The trial court's grant of such a motion will be affirmed where ''the moving party's right

to succeed is certain and the case is so free from doubt that the trial would clearly be a fruitless

exercise." Keil v. Good, 356 A.2d 768 (Pa. 1976).

B. The CourtProperly Granted Defendants' Motion for Judgment on the Pleadings

Plaintiffs allegations against Defendants arise from a home inspection conducted by

Defendant of a home to be purchased by Plaintiff. Plaintiffs Complaint alleged that Defendants

failed to note the existence of knob-and-tube wiring throughout the house. Plaintiff allegedly

later discovered the existence of knob-and-tube wiring in the house after having another

inspection conducted after she purchased the property. Plaintiff also claimed that Defendants

failed to note defective electrical outlets, asbestos in the basement, inadequate plumbing and

piping, an empty heating oil tank (which was allegedly discovered nearly three (3) winter months

after she had moved in), damaged and/or missing tiles on the first floor of the property, and

stains on the stove in the kitchen. These latter assertions are belied by the report itself.

Despite retaining counsel approximately 8 months after Defendant's inspection, and after

the knob-and-tube wiring was discovered, Plaintiff failed to file her Complaint against

3 Defendants until more than 2 years and 8 months after the original home inspection. As

Plaintiff's claim is governed by the Home Inspection Law, 68 Pa. C.S. § 7501 et seq., (the

"Home Inspection Law") rather than the common law of contracts and/or the UTPCPL as she so

asserts, Plaintiff is barred by the one (1) year statute of limitations in the Home Inspection Law.

Plaintiff obviously seeks to circumvent the one (1) year statute of limitations under the Home

Inspection Law, by asserting that her claim is not premised on the inspection report provided by

Defendant, but rather on Defendant's oral and written representation that he was a

qualified home inspector on which Plaintiff allegedly relied when purchasing the property.

Plaintiffs characterization of her claim is unavailing. By any fair reading of the Complaint this

is an action arising out of the home inspection.

i. Plaintiff's Claim is Barred Under The Home Inspection Law

Pennsylvania's Home Inspection Law is a comprehensive statute which provides the duty

of care (68 Pa. C.S. § 7504), requirements for contracts (68 Pa. C.S. § 7506), and the statute of

limitations (68 Pa. C.S. § 7512) for actions involving home inspectors. In short, the law is a

comprehensive regulation evidencing the Legislature's intent to preempt application of other

laws to home inspections. See e.g., Nutter v. Dougherty, 938 A.2d 401 (Pa. 2007) (for a

comprehensive discussion of legislative preemption).

Section 7512 of the Home Inspection Law provides a one (I) year statute of limitations

that begins when the inspection report is delivered. The inspection report from which this case

arose was delivered on December 6, 2010. Plaintiff's Complaint was not filed until August 30,

2013, two (2) years and eight (8) months after the home inspection and two (2) years after

Plaintiff, through counsel, put Defendant on notice of her claim. In either event, it was pied well

beyond the one (1) year statute of limitations.

4 A plaintiff is barred from bringing an action once the prescribed statutory period for

commencing a cause of action has expired. See Baumgart v. Keene Bldg. Prod Corp., 666 A.2d

238, 240(Pa. 1995). In Pennsylvania, the courts adhere to a strong policy of favoring the strict

application of statutes of limitation. Kingston Coal Co. v. Feltin Min. Co., 690 A.2d 284 (Pa.

Super. Ct. 1997). The person who brings the action has a responsibility and duty to use all

reasonable diligence to be properly informed of the facts and circumstances upon which a

potential right of recovery is based. Id. Likewise, it is the responsibility and duty of a plaintiff to

institute a suit within the prescribed statutory period. Id. The Home Inspection Law states that

all "action] s] to recover damages arising from a home inspection report must be commenced

within one year after the date the report is delivered." 68 Pa. C.S. §7512. The language is plain

and unambiguous.

ii. The Alleged UTPCPL Claim

Plaintiff attempts to salvage her claims by characterizing them as arising under the

UTPCPL, which is subject to a much more generous six (6) year statute oflimitations. Under

the Statutory Construction Act, 1 Pa. C.S. § 1933, particular statutes control over general

statutes. See e.g. Duda v. Com., Bd of Pharmacy, 393 A.2d 57, 59 (Pa. Commw. Ct. 1978)

(holding that a more recent, more specific statute "repealed by implication" a more general

statute). Additionally, section 1921(a) of the same act indicates that when interpreting statutes

the "object of all interpretation and construction of statutes is to ascertain and effectuate the

intention of the General Assembly." When passing the Home Inspection Law, the legislature

obviously contemplated its construction with the UTPCPL, 73 Pa. C.S. § 201 et seq.

In fact, section 7505 of the Home Inspection Law titled "Consumer Remedies" explicitly

incorporates the UTPCPL, stating that "[tjhe performance of a home inspection is a service that

5 is subject to the ... Unfair Trade Practices and Consumer Protection Law," and further

provides:

"(b) Prohibited acts.--Any of the following acts engaged in by a home inspector, an employer of a home inspector or another business or person that controls or has a financial interest in the employer of a home inspector shall be deemed to be an unfair or deceptive act or practice as defined by section 2(4)(i) through (xxi) of the Unfair Trade Practices and Consumer Protection Law: (1) Performing or offering to perform for an additional fee any repairs to a structure with respect to which the home inspector, the employer of the home inspector or such other business or person has prepared a home inspection report within the preceding 12 months, except that this paragraph shall not apply to remediation for radon or wood destroying insects. (2) Inspecting for a fee any property in which the home inspector, the employer of the home inspector or such other business or person has any financial interest or any interest in the transfer of the property, including without limitation receipt of a commission as an agent, unless the financial interest or interest in the transfer of the property is disclosed in writing to the buyer before the home inspection is performed and the buyer signs an acknowledgment ofreceipt of the disclosure. (3) Offering or delivering any commission, referraJ fee or kickback to the seller of the inspected property or to an agent for either or both of the seller and the buyer for the referral of any business to the home inspector, the employer of the home inspector or such other business or person. ( 4) Accepting an engagement to perform a home inspection or to prepare a home inspection report in which the employment itself or the fee payable for the inspection is contingent upon the conclusions in the report, pre-established or prescribed findings or the closing of the transaction.?"

As the Home Inspection Law was enacted on December 20, 2001 after the November 24,

1976 reenactment of the UTPCPL, this provision limits the UTPCPL's applicability to home

inspections to the specific enumerated actions. Had it been the intent of the Legislature to add

this list of "prohibited acts" to any other acts of a home inspector that arguably could fall within

the broad language of the UTPCPL in would have expressly stated so, i.e., "In addition to any

other acts that may be found to be in violations of the UTPCPL, the following acts are also

prohibited acts under the UTPCPL." In short, this provision is the legislative statement of an

exception to the otherwise preemptive effect of the Home Inspection Law.

4 68 Pa. C.S. § 7505(b).

6 ' '

Given that construct, even with the most generous reading in favor of Plaintiff of the facts

plead, this Court cannot find that Plaintiff plead any facts to indicate Defendants may have

committed any actions that fit within these enumerated "Prohibited Acts." 68 Pa. C.S. §

7505(b)(l-4). As such, the assertion that the UTPCPL applies to her Complaint is without merit.

Moreover, and most crucially, the fact that the Legislature subjected acts of home inspection to

the UTPCPL does not subject those acts to the statute of limitations of the UTPCPL. Once

again, the fact that the Home Inspection Law was passed after the latest reenactment of the

UTPCPL, and is particular, comprehensive, and preemptive with regard to home inspections

subjects any claims arising out of a home inspection, including those that may fall within the

ambit of the UTPCPL (and thus, arguably, subjecting the home inspector to treble damages and

other sanctions found therein) to the one year statute of limitations found in the Home Inspection

Law.

As with the discussion aforesaid of the UTPCPL section of the Home Inspection Law,

had the Legislature intended to expand the statute of limitations for all acts of home inspectors

subject to the UTPCPL it would have explicitly said so. Without such language, the Home

Inspection Law must be interpreted to subject all claims regarding home inspection to the one

year statute of limitations found in the Home Inspection Law. Thus, even assuming that she had

properly alleged one of the prohibited acts provided for by the Home Inspection Law, or that any

of the acts alleged otherwise fell within the purview of the UTPCPL, Plaintiffs claim would still

be conclusively barred by the one (1) year statute oflimitations.

Given her claims were clearly barred by the applicable one year statute of limitations of

the Home Inspection Law, the grant of Judgment on the Pleadings in favor of Defendant was

proper.

7 IV. CONCLUSION

For all of the aforementioned reasons, this Court respectfully requests that its

Order, dated April 8, 2015, be AFFIRMED.

THOMAS C. BRANCA, J.

Copies of t~eabove Opinion mailed on Li I ( 0115 to: By First Class Mail: Carol J. Levy, Pro Se, 2100 N. Line St. Apt. 304K, Lansdale, PA. 19446 Joseph W. Denneler, Esquire By Interoffice Mail:

Coe:r~:?wyL__ 8 (fag" 6 of 79)

Page 1 ~

CAROL J. LEVY, IN THE COURT OF COMMON PLEAS Plaintiff OF MONTGOMERY COUNTY, PA I• ;·

v. CIVIL ACTION - LAW

ROBERT JOHNSON, DOCKET NO. 2013-27083 and IMPERIAL HOME INSPECTIONS, LLC Defendants

' I !,. i i ORDER !' AND NOW, this JI: ~ day of f , 2017, upon consideration of the ~ Motion for Judgment on the Pleadings of Defendants, Robert Johnson and Imperial Home

Inspections, LLC, and any response filed thereto, it is hereby ORDERED and DECREED that

Defendants' Motion is GRANTED and Plaintiffs Complaint is hereby DISMISSED WITH

PREJUDICE.

BY THE COURT:

?~<2if;~ . . -- - - .

Copies of above Order llll rtk&~vl&~lfillIf 2013-21os3-003J 41912oid~:03 AM 11102s24s3 Mailed on 4/8/15 to: Rcpt#Z237S446 F~do.oo By First Class Mail: _ -~iack Levy· MontCo Prothonotary Carol Levy, Plaintiff, Pro Se, 112 Church Road, Apt. 19K, North Wales, PA 19454 Joseph W. Denneler, Esquire By Interoffice Mail: Court Administration

~~MMh\ Secret~ c...:

{J0149429,DOCX)

THIS ORDER/JUDGMENT WAS DOCKETED AND SENT ON 04/09/2015 PURSUANT TO PA. R. C. P. 236. ;'·:} ' i'