Carrington v. F.D. Builders Inc.
43 Pa. D. & C.5th 339
Pennsylvania Court of Common P...2014Background
- F.D. Builders, Inc. built and conveyed a residence in Kennett Square in 2000; plaintiff Edward Carrington purchased it in 2003.
- In 2012 a home moisture survey revealed ongoing exterior water infiltration; Carrington alleges he contacted defendants without response.
- Carrington sued F.D. Builders and individual Frank DiSerafino in February 2014, pleading negligence, breach of implied warranty, UTPCPL violation, and third‑party beneficiary/breach of contract theories.
- Defendants filed preliminary objections challenging privity/standing, alleged misrepresentation/fraud claims, and the sufficiency of claims against DiSerafino individually.
- Defendants also sent an unsolicited letter raising additional legal arguments (Conway decision and gist‑of‑action), which the court refused to consider because it was not filed as a formal preliminary objection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Privity / standing | Carrington asserts causes of action (negligence, UTPCPL, breach theories) that do not necessarily require privity | Lack of privity between builder and current owner bars the suit | Objection dismissed — defendants failed to explain how lack of privity defeats all claims; privity is not uniformly required for these causes of action |
| Misrepresentation / fraud specificity | Facts in ¶¶22–27 and reliance allegations in Count III support misrepresentation/UTPCPL claims | Complaint fails to state viable fraud/negligent misrepresentation claim, or fails to plead against DiSerafino individually | Objection dismissed — defendants’ argument was vague and unclear as to which claim they attacked; court will not craft the argument for them |
| Sufficiency as to DiSerafino (individual) | Plaintiff generally pleads conduct by "defendants" and attached deed shows F.D. Builders T/A DiSerafino Custom Builders | Complaint lacks material factual allegations showing DiSerafino’s personal liability or how individual liability arises | Sustained — plaintiff must plead a theory and material facts tying DiSerafino personally to liability; claims against him dismissed without prejudice and leave to amend granted |
| Supplemental letter arguments (Conway / gist of action) | N/A (not formally raised) | Defendants requested court to consider Conway and gist‑of‑action via letter to chambers | Court declined to consider letter arguments because they were not filed as preliminary objections per procedural rules |
Key Cases Cited
- Woodward v. Dietrich, 548 A.2d 301 (Pa. Super. 1988) (contractor may be liable for negligent construction despite lack of privity)
- Valley Forge Towers S. Condo. v. Ron‑Ike Foam Insulators, Inc., 574 A.2d 641 (Pa. Super. 1990) (UTPCPL does not require strict technical privity)
- Scarpitti v. Weborg, 609 A.2d 147 (Pa. 1992) (intended third‑party beneficiaries may enforce contract rights absent privity)
- eToll, Inc. v. Elias/Savion Adver., Inc., 811 A.2d 10 (Pa. Super. 2002) (discussion of gist‑of‑the‑action doctrine and pleading issues)
- Bortz v. Noon, 729 A.2d 555 (Pa. 1999) (elements of fraud/negligent misrepresentation include materiality and justifiable reliance)
- Wicks v. Milzoco Builders, Inc., 470 A.2d 86 (Pa. 1983) (corporate officer may be personally liable for torts committed by participation in corporate wrongdoing)