Pennsylvania Supreme Court to review ability of subsequent buyer to claim breach of implied warranty against construction contractor.

In Conway v. Cutler Group, Inc., 57 A.3d 155 (Pa. Super 2012), the Pennsylvania Superior Court held for the first time that a subsequent buyer of a home, who has no contractual privity with the contractor, can nonetheless assert claims against the contractor for beach of the implied warranty of habitability. The Superior Court found that the implied warranty is a creature of public policy, and accordingly no privity of contract is necessary. In response to concerns that such extension of the implied warranty beyond the initial purchaser to second or subsequent purchasers would lead to unlimited liability against contractors, the court found that any such claims would still be subject to the 12 year statute of repose set forth in 42 Pa.C.S.A. Section 5536(a), which is applicable to all proceedings involving the design, planning, supervision, or observation of construction, or construction of any improvement to real property

One must wonder whether such an extension of the implied warranty of habitability to subsequent purchasers sets the ground work for the extension of additional implied warranties against contractors and builders, such as the implied warranties of fitness for purpose, merchantability, workmanlike quality or title

The Pennsylvania Supreme Court has granted a Petition for Allowance of Appeal to decide the sole issue of whether the Superior Court wrongly decide an important question of first impression in Pennsylvania when it held that any subsequent purchaser of a used residence may recover contract damages for breach of the builder’s implied warranty of habitability to new home purchasers? Conway v. Cutler Group, 77 A.3d 1257 (2013).

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