Tener, D. v. Pavinich, M.
83 WDA 2017
| Pa. Super. Ct. | Oct 25, 2017Background
- Anthony and Virginia Pavinich owned a 3-story house in Pittsburgh renovated in 2004 into two rental units; Mark Pavinich supervised the work as subcontractor and obtained permits.
- Renovations were inspected and approved under the City of Pittsburgh building codes in effect in 2004; occupancy permits were issued in 2006.
- Anthony later died and the Property transferred to an irrevocable trust with Mark as trustee; Mark listed the Property for sale in 2012.
- David Tener inspected and bought the Property in October 2012 for $250,000; in 2013 Tener’s renovation work revealed parts of the building did not meet the 2009 building codes.
- Tener sued alleging fraud, breach of contract, unfair trade practices, and breach of the warranty of habitability, seeking roughly $82,000 in damages; Pavinich moved for summary judgment.
- Trial court granted summary judgment for Pavinich; on appeal the Superior Court affirmed, holding Tener produced no evidence that Pavinich violated the applicable (2004) code or that later codes applied to Pavinich’s permitted 2004 work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was a genuine factual dispute that Pavinich violated applicable building codes prior to sale | Tener contends the Property violated the building code (as shown by noncompliant conditions discovered in 2013) and that code violations were concealed to induce purchase | Pavinich argues the 2004 renovations were permitted, inspected, and compliant with the codes in effect then; subsequent codes (2009) do not apply retroactively and Tener offered no evidence work was done after the 2004 permit | Court held no genuine issue: Tener failed to show violation of the 2004-applicable code or that post-2004 codes applied; summary judgment for Pavinich affirmed |
Key Cases Cited
- Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000) (abuse-of-discretion standard for trial-court decisions)
- Chenot v. A.P. Green Services, Inc., 895 A.2d 55 (Pa. Super. 2006) (summary-judgment standard and plaintiff’s burden)
- Grossman v. Barke, 868 A.2d 561 (Pa. Super. 2005) (pleading must apprise defendant of claims; unpled theories are waived)