Opinion
J-A03031-16 No. 1016 EDA 2015
04-11-2016
CAROL LEVY Appellant v. ROBERT JOHNSON AND IMPERIAL HOME INSPECTIONS, LLC Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.:
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
[Ms. Levy's] purchase. [Ms. Levy] received the home inspection report on the same day. [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.(Trial Court Opinion, filed September 10, 2015, at 1-2) (internal footnote omitted).
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").
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.
Ms. Levy raises five issues for our review:
DID THE TRIAL COURT ERR AS A MATTER OF LAW IN
HOLDING ON SUMMARY JUDGMENT 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?(Ms. Levy's Brief at 2-3).
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?
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.
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- 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 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). Accordingly, we affirm on the basis of the trial court's opinion.
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).
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/11/2016
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