*1 1035.2(1). light Pa. R.C.P. report. No. herein, disposition
of our the issues we
grant summary respondents’ motion for
judgment deny petitioners’ motion for
summary judgment.
ORDER NOW, day
AND of August, this 19th respondents’ motion for sum-
mary judgment in the above-captioned hereby and petition-
matter is GRANTED summary judgment motion for
ers’
above-captioned DE- hereby matter
NIED.
Judges SMITH-RIBNER only.
FRIEDMAN concur in the result
Judges COHN and LEAVITT did not
participate the decision of this case. YOCCA,
Ronald A. Paul Serwonski and
Patty Serwonski, wife; his and Ron individually Carmassi,
ald P. and on similarly situated, Appel
behalf of all
lants,
v. STEELERS PITTSBURGH
SPORTS, INC., a National Football
League Franchise, The Steelers t/d/b/a
Pittsburgh Club, Sports Football Authority Pittsburgh
& Exhibition County. Allegheny
& Pennsylvania.
Commonwealth Court
Argued May 2002. Aug.
Decided *3 (Plaintiffs),
similarly persons who situated purchased “stadium builder licenses” (SBLs) Defendants. We reverse part part. and affirm in Complaint, (SBL Bro- Defendants issued brochure chure) soliciting purchase Plaintiffs to for a professional SBLs new football stadi- (Com- um, now known as Heinz Field. ¶¶ 15.) plaint, The SBL Bro- *4 purchased chure indicates that those who making SBLs would be a one-time contri- building bution to the cost of the new return, purchasers stadium. the SBL assigned seating to a particular would be (Section) area in the stadium and would in right buy have the to season tickets many as as Section for seasons They right wished. also have the to would Helzlsouer, Dravosburg, appel- W.J. for who gains determine control season lants. (SBL for their seats in the future. tickets 37a.) Brochure, R.R. at The actual seat Hornak, Pittsburgh, Mark R. appel- for assignments made after the were be lee, Sports & Exhibition Auth. of Pitts- physically were installed in the stadi- seats burgh Allegheny County. and (SBL 38a.) Brochure, um. R.R. at Manzo, Michael Pittsburgh, appel- J. for price ranged The of the SBLs lee, Pittsburgh Sports, Steelers Inc. $2700.00, depending on which $250.00 FRIEDMAN, COHN, Before Judge, in. purchaser wished to sit Section FLAHERTY, Judge, and Judge. Senior 35a-36a.) (SBL Brochure, The R.R. at diagrams SBL Brochure contained colored Judge BY OPINION FRIEDMAN. planned showing stadium the vari- appeal This is an from an order showing yard-lines of ous Sections and Allegheny Court of Common Pleas of field. The were playing SBL Sections (trial court), County dated December A, B, C, D, E, F, I and designated Club 2001, which preliminary sustained the ob- 35a-36a.) (SBL Brochure, R.R. at Club II. jections Pittsburgh Sports, of The Steelers Bro- penultimate page of the SBL Inc., a National Football Fran- League you sign” and chure was headed “Before chise, Pittsburgh The Steelers t/d/b/a text: following contained the (Steelers) Sports Football Club and the & page on the next application Use the Authority & Pittsburgh Exhibition Alle- (SBLs) Builder Licenses order Stadium gheny County (Authority) (together, De- or season tickets non-SBL Sections fendants), and the third amend- dismissed fewer season for the same number or complaint (Complaint) ed class action filed you currently hold. tickets as Yocca; Paul and Ronald A Serwonski Serwonski, wife; you wish Patty may apply and Ronald P. You Section his fair- Carmassi, first To ensure individually your preference. and on behalf of all cation; ness, second installment was due in every application received 1999; the third installment October assigned be November 30 deadline will (SBL Brochure, was due October computerized priority number random n R.R.at allege will be used to priority and that number it De- completed Application, sent assign both sections and seats. deposit, required fendants with the (SBLs) Builder Licenses Stadium ac- completed payment of the SBL fees SBLs, you ordering you If are will be cording to the terms of the contract. March mailed a contract the end of' ¶¶ 56-57.) 25, 40^41, (Complaint, your as- notifying you Section mailed that Defendants signment. signed The contract must be applicants two documents to days. If the and returned within Agreement” an October “SBL completed contract is not returned Agree- “Additional Terms.”1 The SBL required, your season ticket holder dis- Addi- incorporates by ment reference the count, seating priority deposit will which, turn, Terms, contains tional be forfeited. clause, “This integration stating Seating Area Preference Same *5 agreement Agreement contains entire apply who Current season ticket holders respect to the matters parties corresponds that SBL Section [an] supersede and shall provided for herein in with their current seat location Three any representations agreements previ- or assigned will be the first Rivers Stadium parties ously made or entered into choice, your If that is to that Section. 101a.) (R.R. allege at Plaintiffs hereto.” close to try assign we will seats as Agreement and they signed the SBL your current seat location as the new installments for their paid remaining seating configuration stadium will allow. ¶¶ 25-26, 41-42, (Complaint, 57- SBLs. in a given All other seats SBL Section 58.) prior- assigned using will be the random they took allege that when ity Assignment your first number. Field for the first their seats Heinz guaranteed. preference is time,2 had they realized that Defendants (SBL 39a.) Brochure, at R.R. Sections, caus- enlarged some of the SBL Brochure was page The last of the SBL ing their individual seats to be “shifted that in- application (Application) away [fifty] form horizontally from both out, indicating to fill vertically away terested were yard-line (Plaintiffs’ 10.) Therefore, first, second, and third Section their field.” brief (See R.R. at Purchasers outside the SBL Sections choices. their seats were Brochure, upon payment depicted make for the SBLs were to relied when filled out a nonrefundable which equal three installments: Appli- Applications. deposit was due with one-third Stadium Builder License” Conditions of document was entitled "Stadium 1. The first or, Stadi- and Conditions of appli- "Additional Terms Agreement,” if the License Builder seats, Agree- and Club Seat um Builder License assigned to club "Stadium cant was ¶ 22.) (Complaint, We will refer Agreement,” ment.” Builder and Club Seat License as the "Additional Terms.” this document (Complaint, containing provisions. similar 22.) ¶ simplicity, will refer to this we For allegation, we can infer that Agreement.” The this' the "SBL 2. From document as for the first four-page purchased season tickets separate, document was second played at Heinz Field. season "Additional Terms document entitled rows, example, thirty-six meaning person For Plaintiff has Representative D should not be seated applied assigned Ronald A. Yocca for and was Section (Com- any further back than row twelve. I awarded two SBLs for the Club Section. ¶¶ 61.) However, plaint, both diagram Based on the in the SBL Bro- (SBL chure, Brochure, 35a), Serwonskis’ seats and Carmassi’s seats R.R. at Plain- turned out be in the sixteenth row. reasonably tiffs that Yocca believed ¶¶ 63.) (Complaint, 47 and Plaintiffs al- I that Club Section seats would some- be lege by expanding the size of the D twenty-yard where between the lines. Section, ¶ 29.) improperly Defendants have over- However, (Complaint, Yocca’s seats charged actually sitting some SBL holders eighteen yard-line. turned out to be at the E price ¶ Section the of SBLs for 31.) (Complaint, The Complaint alleges ¶¶ 66.) D. (Complaint, Section 50 and By expanding the size of the Club [I] alleging: The Complaint includes counts Section, (1) (2) Defendants have improperly contract; negligent breach mis- (3) overcharged actually fraud; SBL holders sit- representation and violation ting in Club the annual seat [II] fee of of the Unfair Trade Practices and Con- Subject (UTPCPL).3 Club [I]. to verification dis- sumer Protection Law covery, Plaintiffs believe and therefore Plaintiffs seek relief in the form of com- aver that the gener- pensatory damages, declaratory judgment, additional revenue relief, injunctive ated in the [expanded punitive damages Club I and at- Section] $650,000.00 torneys’ will exceed per year for the fees.
life of the stadium. Authority The Steelers and the each *6 ¶ 34.) words, (Complaint, In other Plain- preliminary objections, filed which includ- tiffs allege that Yocca is being forced to ed demurrers and motions to dismiss. pay the I price Club for seats accord- The trial preliminary court sustained the Brochure, ing to the SBL objections should have and dismissed Plaintiffs’ Com- been part considered II plaint entirety. Club Sec- in its The trial court dis- Furthermore, tion. alleged injury to missed Plaintiffs’ breach of contract claim Yocca will long by continue for as as he on the it pur- basis was barred the chases parol season tickets. evidence rule. The trial court dis- negligent missed Plaintiffs’ claim of mis- Representative Patty Plaintiffs Paul and representation and fraud on the basis that granted Serwonski were two SBLs for by “gist it barred the of the action” was D, which upper Section the deck of Plain- doctrine. The trial court dismissed the stadium. P. Ronald Carmassi also was tiffs’ claim of the on violation of UTPCPL granted two SBLs for D. Section The the basis that the sale of does not SBLs diagram in the SBL Brochure shows fall within the UTPCPL’s definition of upper being deck as divided three into “goods or services.” The trial court also D, F, equal E D being Sections: and with rejected declaratory Plaintiffs’ claims for playing being closest to the field and F injunctive relief. away the farthest playing from the field. (SBL Brochure, R.R. at now the trial appeal upper Complaint.4 that the deck of the court’s dismissing stadium order 1224, scope appeal 3. Act of December P.L. 4. Our of review of an from an amended, sustaining preliminary objections in the order §§ 73 P.S. 201-1—201-9.2. to determine nature of demurrer is whether alleged complaint, on the facts the law 942 A contract is formed when there
I. Breach of Contract
offer,
that offer
acceptance
is an
an
of
that the trial court
argue
Plaintiffs first
Hartman
exchange
an
of consideration.
v.
concluding
erred in
their claim for
Baker,
(Pa.Super.), appeal
of
is barred
the parol
breach
contract
(2000).
denied,
712,
A.2d 1070
564 Pa.
764
agree.
rule.
evidence
We
present,
three elements are
Once these
formed,
parties
even if the
in
contract is
“parol
evidence
Under
agreement
single
to reduce their
to a
tend
rule,”
to a contract
where
additional terms at a later
writing with
in a sin
agreement
have embodied their
a contract has been
date.
Id. Once
memorial,
regard
gle
they
which
as the
formed,
if
may
only
its terms
be modified
final
all
expression
agreement,
parties agree
both
modification
utterances, prior
contempora
other
to or
con
upon
the modification is founded
valid
memorial,
making
neous with the
Inc., 290
sideration. Corson v. Corson’s
purpose
are
for the
of deter
immaterial
(1981).
528,
Pa.Super.
A.2d
The
434
1269
mining the terms of the contract. Fries
contract cannot be modified
terms
Indemnity Company,
tad v. Travelers
Apgar
Employ
v.
unilateral action.
State
(1978).
1212
Pa.Super.
260
(Pa.
System,
the law states with that no recov ery is possible alleged on the facts Negligent Misrepresentation II. complaint. Dynamic Sports Fitness Cor and Fraud America, poration Community Inc. v. argue Plaintiffs next that the trial court Eastern County, YMCA Delaware denied, concluding erred their tort claim (Pa.Cmwlth.200I), appeal negligent for and fraud misrepresentation
568 Pa. We must “gist is barred of the action” doc- accept as true all well-pled allegations of disagree. trine. We material complaint, fact averred all reasonably well as inferences deduced rule, Any
therefrom. doubts general must be resolved As a courts are in favor of overruling Id. permit recovery the demurrer. reluctant tort Fire, v. Mutual Because we do Grode parol not believe that breach of contract. Company, bars Plaintiffs’ Marine and Inland Insurance necessarily evidence rule (Plaintiffs’ point, 5. The Reply record indicates at some to the SBL Holders. Brief short, unclear, diagram 7.) Steelers’ pro- issued a second the record is and the posed seating plan stadium that differed agree, significance, do not on what if slightly diagram from the contained in the any, diagram this second has to Plaintiffs’ (See SBL Brochure. Exhibit C to Plaintiffs’ claim. Opposition Preliminary Objections Brief in previously, scope As noted our of review of Defendants, Filed R.R. at Ac- preliminary the trial court's decision on ob- Plaintiffs, cording to an unlabeled black jections limits us a determination of wheth- diagram August white was attached to an er, alleged assuming the truth of all facts applicants 1999 letter sent notifying to SBL complaint, the Plaintiffs' third amended law SBL, granted them that had been certainty recovery possi- states with that no is (Plaintiffs’ 10.), diagram brief at but that complaint ble. Plaintiffs’ third amended sophisticated” seating "less than the chart in makes no reference whatsoever to the exis- Brochure, the SBL "bears no verisimilitude *8 Indeed, diagram. tence of a second finally assigned" the SBL Sections as they brief to this court that in their agreed by "was never to the SBL Holders.” always diagram relied on the in the SBL (Plaintiffs' 6-7.) Reply Brief at The trial Brochure and that did not realize that opinion diagram court states that a second reconfigured itself, seating the had sections been Agreement was attached to the SBL 1999, until took their seats in the new stadium (trial which was mailed in October (Plaintiffs’ 10.) 3). Indeed, for the first time. brief at op. Agreement court at the SBL Therefore, scope it is outside this court’s of refers to an "Exhibit A” in relation to the However, diagram review to consider the second or Seating "Stadium Area.” we can- record, significance, any, address what if the second any not find such the document in and, diagram Any signifi- despite has to Plaintiffs' case. the claim the con- Steelers' 11, (Steelers’ 7), diagram a trary, attached to the second is brief at n. the Plaintiffs cance deny by specifically that the factual determination to be made the trial Steelers have ever tendered document A” on remand. marked "Exhibit court 944 366, Sunquest Systems,
154
623
Pa.Cmwlth.
A.2d 933
Inc. v.
Information
Inc.,
Reynolds,
The
for
reluctance
that:
Dean Witter
40 F.Supp.2d
reason
is
(W.D.Pa.1999).
644, 651
Tort actions lie for
of duties
breaches
a
generally employs
slightly
This court
a
social
imposed
law as matter of
test,
different
known
the
as
misfea-
while
for
policy,
only
contract actions lie
test,
test. Under this
sance/nonfeasance
imposed
mutual
breaches of duties
we determine if there exists a
of
cause
agreements
particu-
consensus
between
in
of a
growing
action
tort
out
breach of
lar
permit promisee
individuals.... To
a
there
contract based on “whether
was
promisor
[or
sue his
in tort
her]
improper performance of a contractual ob-
of
inter
would
breaches
contract
se
(misfeasance)
ligation
rather
the
than
usual
of
re-
erode the
rules
contractual
(nonfeasance).”
perform
mere failure to
our
covery
inject
confusion into
Grode,
(quoting
623 A.2d
935
Raab v.
well-settled forms of actions.
Keystone
Company,
Insurance
271 Pa.Su-
Telephone
Bash
Company
v. Bell
Penn-
185,
(1979), appeal
dis-
per.
638
of
825,
sylvania, 411
A.2d
Pa.Super.
missed,
(1981)).
601
Pa.
496
437
(1992) (quoting
Iron Mountain Securi-
Grode,
“gist
As we
in
the
the
noted
of
ty
Corporation
Storage
Spe-
v. American
action”
and the
test
misfeasance/nonfea-
Foods, Inc.,
cialty
F.Supp.
the
re-
sance test
tend
achieve
same
(E.D.Pa.1978)).6
sults,
require
analyze
court to
both
the
pleadings
how much the claims in the
re-
However, there are
limited
some
If
late to the contracts involved.
there is
may
a plaintiff
circumstances under which
“misfeasance,” there
improper per-
is an
have
claim
hav
despite
an actionable tort
formance of the contract
course of
ing
the de
relationship
a contractual
with
duty
the
im-
which
defendant breaches
cases, particularly
fendant.
Id. Some
as a
of social
posed
policy.
law
matter
in
those decided
federal courts but based
instances,
In
the
of
“gist”
plain-
such
the
law,
Pennsylvania
on
apply
“gist
in
tiffs action sounds
tort and
contract
action” test that
trial
in this
court used
itself is
to the cause of action.
collateral
employ
case. Other cases
a misfea
hand,
the other
if there is “nonfea-
On
test.
sance/nonfeasance
sance,”
wrong attributed to the defen-
solely
dant
a breach of the
defendant’s
of
has been
“gist
the action” test
duty
perform
the terms of the
under
described
follows:
instances,
of
“gist”
contract.
such
plaintiff alleges
the defen-
When
contract,
plaintiffs
action sounds
dant committed a tort
the course
plaintiff
have a
would not
cause
carrying
agreement,
out a contractual
contract.
action but for the
examine the claim
Pennsylvania courts
“gist” or
and determine whether
trial court
agree
We
here,
gravamen
plaintiffs
of it sounds
contract
action
“gist”
sounds
contract,
tort,
tort;
only if
the tort claim
a tort claim is maintainable
because
*9
the same conduct
precisely
“collateral” to conduct
is based on
the contract
is
assert
a breach
the
that Plaintiffs
is
primarily
that is
tortious.
1999).
grounds
per.
Superceded
6.
on other
rule
(Pa.Su
Keefer,
v.
stated in
Accordingly, we reverse money Plaintiffs compensated by as it dismissed dam- adequately decision insofar therefore, relief. request declaratory and, injunctive for that relief ages,11 in appropriate this case. is not Injunctive Relief IV. Moreover, great- we do not believe court argue Plaintiffs that the trial next injury refusing er would result from rather for in- dismissing request erred in request for an granting than Plaintiffs’ junctive disagree. relief.10 We to reissue injunction ordering Defendants peti on a prevail In order to ticket “all licenses and all season seat injunction, party permanent tion for a contrary, granting seats.” To injunction must establish that seeking the injunctive relief would disturb such clear, there is an right to relief is of fans seating assignments of thousands injury an which urgent necessity to avoid may as satisfied with their seats as who be compensated by damages, for cannot be Inevitably, this Plaintiffs are dissatisfied. injury will result from greater and the filing lead to the of additional law- would granting than the relief refusing rather suits, litiga- the outcome of this prolonging Pennsylvania v. State requested. P.J.S. tion. Commission, (Pa. Ethics reasons, Cmwlth.1996). we conclude that the For these Injunctive relief is not dismissing properly trial court acted adequate available where there is reme relief, injunctive and for dy at law. Id. request to that affirm the trial court’s decision we Plaintiffs, injunctive According to extent. right because the appropriate relief is here games to control for Steelers’ seats Trade Practices V. Unfair Heinz Field especially because “priceless,” Finally, argue that the out, ten-year waiting with a list. is sold dismissing their claim trial court erred disap the frustration and appreciate We Plain According to under the UTPCPL. Plaintiffs, as dedicated pointment tiffs, true “licenses” SBLs are not fans, must have felt when Steelers and, therefore, sense of the word assignments to believe that their seat came “goods or services” should be considered in violation of the unfairly were made and However, meaning of the UTPCPL.12 we conclude within Agreement. contract, remain available injunctive count for breach of Complaint seeks relief 10. Plaintiffs’ contract, and to the terms of the to “enforce to Plaintiffs. require seat licenses and all season that all be reissued in accordance ticket seats UTPCPL, 9.2(a) 73 P.S. 12.Section 85; ¶ (Complaint, upon priority.” agreed 201-9.2(a) added) provides (emphasis § that: 71a.) R.R. at goods person purchases or leases Any who Complaint seeks of Plaintiffs’ 11. Count VIII family personal, primarily or or services alternative, and, injunctive rescis- relief thereby any suffers purposes household contracts with Defendants sion of their money property, or loss of ascertainable plus money paid, interest restitution of all personal, of the use or or result real 86; ¶ attorneys’ (Complaint, R.R. fees. method, act employment by person of a prayer for re- Although this alternative practice unlawful section 3 declared of the Com- included in Count VIII lief is act, may bring private action to of this consequential compensatory and plaint, the damages or one hundred actual recover interest, costs, attorneys fees damages, ($100), greater.... whichever is dollars VII, Count Plaintiffs’ Plaintiffs seek in
947 The Agreement describes here cannot be considered “service” as relationship Therefore, between parties as one under the UTPCPL. we con- (R.R. “licensee,” 72b, of “licensor” and at clude that trial court’s dismissal of 80b); however, we are not bound the Plaintiffs action under the UTPCPL was objection nomenclature the improper preliminary attach and, Mixter, stage, relationship. accordingly, J. Miller 2 we reverse the Co. v. trial Pa.Cmwlth. 277 court’s dismissal of Plaintiffs’ action We under agree with the UTPCPL. Plaintiffs that SBLs are not licenses in the true sense of the word. A reasons, For all of the above we reverse “license” generally is defined as a “revoca the decision of the trial in part court and ble permission to commit some act that affirm part. that decision in would otherwise be unlawful.” Black’s (7th Ed.1999). Dictionary Judges
Law and 931 McGINLEY LEAVITT did Be participate cause not the decision this case. purchasing Steelers’ season tick plainly ets is not an activity, unlawful ORDER SBLs do not fit this definition. NOW, AND day August, this 28th Instead, we conclude that the SBLs are 2002, the order of the Court of Common example contract, classic of an option (trial court), Allegheny Pleas of County which is a contract keep an offer open. dated December which dismissed Watkins, Schecter v. Pa.Super. 395 the third amended class action complaint is (1990), denied, appeal 585 526 Pa. hereby reversed insofar as it dismisses (1990). Here, Yocca; Ronald A. Paul Serwonski and Pat- purchased have right buy season Serwonski, ty wife; his P. Ronald in a tickets certain Section of the stadium (Plaintiffs) Carmassi’s claim for breach of for many consecutive seasons as they contract, Plaintiffs’ requests for declarato- words, wish. other by purchasing relief, ry claim Plaintiffs’ for violation SBLs, the paid Defendants to of the Unfair Trade Practices and Con- keep open an offer to sell them season Defendants, sumer Protection Law. tickets; entirely this is an different trans- Inc., Pittsburgh Sports, Steelers a Nation- action than purchase of season tickets. Franchise, League al Football The t/d/b/a proper question Pittsburgh Steelers Football before the trial Club and the court Sports should have & option Authority been whether an Exhibition of Pitts- burgh conceivably Allegheny County, contract & shall file a scope falls within the timely of “goods portions or services” answer to the above purposes of the Complaint. UTPCPL. Goods are Plaintiffs’ The decision of the “tangible defined as court, trial or movable insofar as it dismisses Plain- personal property other than (7th money.” negligent misrepresenta- Blacks tiffs’ claims for Dictionary Law Ed.1999). relief, injunctive tion and fraud and af- option purchase Because the is firmed. tangible season tickets is not or movable
property, clearly the SBLs are not Concurring Dissenting Opinion by service, “goods.” hand, A on the other Judge COHN. defined as act doing something “the a person company useful for for a I reasoning parts fee.” concur with the II (7th Ed.1999). Dictionary Blacks Law majority opinion. I dissent IV definition, I, In light say majority of this we cannot parts III and V certainty option opinion. contracts *12 (Plaintiffs claim, the Third Regarding Complaint, breach of contract Amended 16) added). I, disagree majority Part I the (emphasis with Para. may have a of contract plaintiffs breach requires promise. Ring A contract a trial claim. The court was faced with a Abramski, gold District v. 57 School Pa. A may only be sus demurrer. demurrer (1981). 33, 426 Accord Cmwlth. when, complaint, on tained the face of Contracts, (1993), § on 1.15 ing to Corbin permit recovery. the law will not Stone person may express an intention to do “[a] Agency, and Edwards Insurance Inc. v. something promising future without Insurance,
Department 151 Pa.Cmwlth. of Further, ex promise to do it.” “A is an 266, (1992), affirmed, A.2d 616 1060 538 intention, every of but it is not pression (1994). 276, well-pled Pa. All expression of can properly intention that must as true. Id. allegations accepted be promise. called a An expression be of considering objections preliminary When promise not a it intention is unless is comr demurrer, scope in the nature of a our of municated to one or under persons more whether, to on review is determine expect circumstances such will alleged, certainty facts law with states performance may reasonably act in recovery that no Rouse possible. is & Here, upon the Id. expression.” reliance Associates-Ship Limited Part Road Land the trial court that as a matter concluded Pennsylvania nership v. Environmental language plaintiffs’ of law reliance on Board, Quality 642 164 Pa.Cmwlth. dia accompanying of the brochure and the 642 A.2d First, agree. was not I gram reasonable. examining plaintiffs’ third amended did nothing promise defendants more than complaint, allegation it is clear that their is try people seat wished to to to where regarded that the brochure be should Second, diagram, the accompanying be. the contract. The brochure stated brochure, when tandem with the viewed be as close to seating indicates would apply season holders who Current ticket original seating as the new patron’s [Stadium License] Builder allow, making it clear configuration would cur- with their corresponds Section car configuration not be a that the would rent seat location in Three Rivers Stadi- Third, the old copy bon stadium. since assigned um will be the first to that building had not new stadium choice, If that we will your Section. begun, diagram a general even reliance on try assign your cur- seats as close objective compo that contained no clear rent seat location the new stadium ex nents from which one could construe All oth- seating configuration will allow. end, begin a section actly where would given in a will er seats SBL Section be be, where would much less individual seats using num- assigned priority the random view, is, reliance as my unreasonable Assignment your prefer- first ber. Thus, law.1 hold that no guaranteed. ence is not matter of I would Olson, 483, 488, Further, view, my by ignoring the corre- 447 Pa. 291 A.2d (1972), (quoting Phillips spondence they August, with Orner v. Gas & received in T.W. Co., plaintiffs corresponding diagram, Oil 401 Pa. modified (1960)). plaintiffs, additionally principle afoul that "fail- I note that seem to run upon receiving diagram, unavailing had at least one ure to read is an [the contract] proceed avoid- month to consider justify defense cannot whether excuse or ance, inquiry agreement as to of the con- to malte modification or nullification differing diagrams. any provision thereof.” Estate tract or cause of action in pled.2 authorization, contract has been endeavors without such contrast, illegal engage would be in. In Regarding the related count for declara- the SBLs are more akin to real property tory judgment discussed Part III of the licenses. majority opinion, plaintiffs wherein sought *13 a ruling that original brochure and property, In terms of real have licenses diagram integrated should be with the la- long by Pennsylvania been defined law to signed ter agreement, I because conclude authority be “an to do a act particular or that the brochure promise contained no as land, upon series of acts another’s without law, a matter of integrating it would not be possessing any estate therein.” Baldwin Therefore, helpful plaintiffs’ case. while 250, Taylor, v. Pa. 166 31 A. 251 I agree majority with the the trial (1895); accord Kovach v. General Tele- court should have ruled on this alternative phone Pennsylvania, Co. Pa.Super. 340 of request, its failure to do so was harmless 144, (1985). 489 An example of error. such a license a person buys is when a ticket for an event. Tickets for events V,
Regarding Part I respectfully dis- provide “purchaser a a ‘general in- agree [with] with the majority’s conclusion as to tangible’ the nature of a the unfair trade license to come practices claim. The ma- premises onto the ... jority right and a to view a concludes that “SBLs are not ‘licens- performance.” and, Klingner es’ the true v. Pocono Inter- sense of the word therefore, Inc., 484, Raceway, Pa.Super. national 289 should be considered ‘goods 1357, or services’ within 433 A.2d 1362 li- meaning Although of UTPCPL orally [Unfair Trade censes are sometimes im- Practices and formed or Consumer plicitly, they may Protection also (Majority through Law].”3 arise writ- 16-17.) Opinion ten, I disagree. explicit I arrangements. believe As noted Pennsylvania law, court, under SBLs are our sister “[a] license based on a such, indeed licenses and contract, fall valuable consideration is a outside the ambit of the UTPCPL. rights obligations The majority’s license, definition of taken from a agreement depend under such license on Black’s Law Dictionary, is akin provisions more to the Sparrow thereof.” v. Air- professional occupational America, posi- port Parking Co. 221 Pa.Su- licenses— of tions 32, (1972) where granted 87, individuals are per. autho- (defining engage rization to in specific professional “purely license as the personal privilege Although 2. application I believe the intangibles and bro- securities because securities are not, law, chure did as a matter services). lead to goods and are not or In the case contract, formation of a there is no doubt that judice, analysis majority’s implicitly sub agreement execution of the SBL did create recognizes majority this. The concludes that contract. goods, the SBLs are neither licenses nor but service, may that an SBL be a service. As 17, 1224, 3. Act of December 1968 P.L. plaintiff's cogniza- UTPCPL claim would be amended, §§ 73 P.S. 201-1-201-9.2. majority conclusively ble. The does not indi- Appellee correctly private notes that causes cognizable, cate that the UTPCPL claim is but require, of action under the UTPCPL as a leaves issue be determined the trial matter, plaintiffs pur- threshold have court, presumably discovery after additional goods. chased or leased a sale See 73 P.S. majority guid- has occurred. The no offers 201-9.2(a); generally § Algrant see v. Ever- ance as to the factual factors the trial court green Valley Partnership, Nurseries Limited assessing should consider in whether the SBL (E.D.Pa.1996), F.Supp. 499-501 af- is indeed a service. firmed, (3rd Cir.1997) 126 F.3d 186-88 (finding that UTPCPL does not cover sale of land
... certain acts [on do JOHNAKIN, Petitioner, Ronald question], but not to exercise exclusive possession enjoyment speci- for a term v. fied.”) omitted). (citation AP WORKERS’ COMPENSATION In the judice, case sub as noted (CITY PHIL PEAL OF BOARD 7(a) court, “Addi- Paragraph trial ADELPHIA), Respondent. of the SBL tional Terms Conditions” that: agreement provides Pennsylvania. Commonwealth Court grant Li- provide SBL does not Submitted June eq- any ownership censee with or other *14 uity Aug. interest Stadium or Steel- Decided right ers. The SBL is revocable
personal privilege does not confer in real
upon any prop- Licensee interest
erty leasehold interest Stadi- relationship
um Licensee’s seats. li- is that of licensee and Licensor
censor.
(SBL Agreement.) agree
I that we majority with the are
not the nomenclature used bound my Penn- parties, reading but from law, accurately
sylvania the nomenclature legal relationship
describes the between Licenses, parties. in terms of used or personal property,
real are neither services, intangible nor but are
goods licenses available
property. The made themselves,
SBLs, as well as the SBLs are subject
intangible private to a items Accordingly, I cause of action.
UTPCPL ruling affirm the trial court as to
would issue. reasons, I af- foregoing
For would
firm the trial court in toto.