when we're when ski verse ford was rendered in two thousand and two the law in pennsylvania involving the consumer protection law was quite different in that's why respectfully that court looked to forward jurist dictions for guidance as to how pennsylvania would rule on the gist of the action and economic loss doctrine as it applies to the unfair trade practices cl now however not only is there a persuasive authority the prediction was off the mark i respectfully submit that there is compelling authority and that comes in the form of the binding precedence of knight in dickson as well as the vast body of appellate decisions in pennsylvania that have ruled on consumer transactions involving contracts reason is found in robinson's st fifty where there is persuasive authority that the law pennsylvania is has changed then intermediate courts should be provided significant deference and we know that from the case of us vs underwriters and so yes the intermediate courts are able to permit this court to revisit a prior published opinion without going and b one of these real estate transaction cases where the gist of the action economic loss doctors aren't even mentions it is beyond dispute that the consumer protection law was promulgated by the general assembly to provide relief to consumers and the provisions are to be construed liberally that's why in rocky the supreme court of pennsylvania ruled that the common law standard for assessing punitive damages did not apply to the consumer protection law all you had to do was convince the court that you were entitled to trouble damages and finally we know that the supreme court of pennsylvania has an even addressed this issue in the reason it has addressed this issue is because number one night and dixon are binding in number two it's always been beyond dispute that this act by the general assembly supplements the common law it supplements it so the economic loss doctrine the gist of the act doctrine really had no business when it comes to the consumer protection law and i'd like to draw the court's attention to a case that is currently under review by the supreme court of pennsylvania it is case is on appeal from the superior court where the superior court held that when analyzing the kettle provision of the consumer protection law a court can apply a strict liability standard ok not not just negligence but strict liability which is a far cry from an intentional tort and that is consistent with all of the cases that follow the supreme court's direction to literally construe the statute in on appeal like every other case in pennsylvania that has dealt with these issues the gist of the action in the economic loss doctrine aren't even on the table this supreme court of pennsylvania is simply going to decide whether there is a negligence standard or a strict liability standard and they're never going to decide whether or not the gist of the action rick nomic last doctor in applies because nobody's probably going to raise all of these cases that have been litigated involving this statute and been litigated by the very able counsel don't you think that if these doctrines applied in pennsylvania somebody would raise them they haven't raised them because these doctrines don't apply this is an act of the general assembly that supplements common law remedies it is a clear statement by the general assembly that consumers need protected and wrongdoers need to be deterred so mr all respectfully request that this court revisit wednesday and overrule it as it did in robinson following the intermediate decisions of the new jersey courts and remand the case for further proceedings thank you law i understand and i had knowledge that they went through the facts but those cases were still decided on the law and we know from dixon the fall of night that that court consumer protection claim then the statute is totally eviscerated all of the protections that the general assembly have promulgated go away if and we know from the supreme court of pennsylvania the nick what we have here is a claim where ms earle signed a contract and six years later pursued an action saying basically you not get the benefit of her bargain that she didn't get what she was promised under that contract this court is held in were linsky end and subsequent decisions but the subsequent decisions were not post decisions correct that's inconsistent with pennsylvania will with respect to the economic loss doctrine it said nothing about the gist of the action doctrine and in fact it went through an analysis determining what the gist of that action was whether it advertising of the way you advertise the home and says you had an intent to sell them as advertised is that is that actionable under the consumer protection advertising goods or services with intent to sell them as advertised if this is not actionable is there anything that's going to be actionable under that section what does that section mean if it doesn't cover you didn't get what was advertised it doesn't cover this case give me an example of what it would cover your honor i would argue that it would be for example in night in night you had a weeknight was the case where you had a used car  and d this was it this was an existing car in a fundamentally light effectively so yours you say you're drawing a distinction that lying about existing goods would be covered even though that's also covered by the contract allowing about future goods wouldn't be covered i don't see how that makes a difference i also don't see a textual difference but in this that says it has to be a present present thing but if you had devaney your basis is night already goes that far but it would cover up present a lot about a present good and not about a future breach or missed a livery i believe that's part of the issue i think there's also the issue your honor simply or he she she contracted it she contracted to purchase a house and she got a housekeeper to see it as she contracted to purchase a new house and she got a new house broad strokes or she argues she didn't get what was represented  specifically in the complaint the complaint says she didn't get roof shingles that she was supposed to get she didn't get the wires all right let's talk about that the next of the claims she also  claimed so there's is the advertising claim after the advertising is a failure to follow warranties claim right now your argument is well the warranty is were part of leading up to the contract but the contract specifically disclaims all warranties that are beyond that contract if if this if this warranty claim isn't covered what is going to be covered by failing to comply with the terms of a written guarantee or warranty this is section subsection fourteen x i v given to the buyer at prior to or after a contract for the purchase of goods or services that section specific contemplates that there is a contract that the warranty can be given beforehand and this contract by the way disclaims it so contract that shows there isn't the warranty but so you're saying because the contract says no warranty you can't make a non contractual warranty claim but i'm not sure what's left of the subsection fourteen when would it ever kick him it kind of the opposite of the logic of the gist of the action doctrine that this is supposed to be for some non contract thin it would the gist of the action doctrine provides really that only that the what does the claim sound claim is sounding in contract because it is saying i have a agreement does provide for warranties there are limited warranties that are provided with the purchase agreements it is not it disclaims employed warranties disclaims warranties that ar the finishes calling architecture timeless design beautiful finish some doctor was going to be quality she alleges a failure to repair you failed to fix many of the problems in the house and said made things worse me deeply this is complaint thirty two dollars fifty four cents how does that not qualify under subsection the roman sixteen making repairs improvements or replacements on tangible real of personal property of a nature or quality inferior to or below the standard that agreed to in wri g i believe part of the issue is that these are these are subjective claims affectively that are subjective so it's all puffery and there's nothing object have to a standard of how of that you'll make a repair or they'll make the repair that the sales agreement of the wording of his warranty it's based on afterwards she complained you agreed to make repairs and there's a series emails back and forth about the repairs if she wants to sue based on those emails why is that not a challenge to not making making repairs of a nature quality inferior to a below the standard that agreed to in writing repair i would posit that this is a negotiation of a good faith dispute about whether something is or isn't warranted consideration is she providing to the extent that she is arguing that something more is covered things like that it's not a specific as the others but if you did make some deceptive representations of alcohol you're about repair etc why wouldn't that be covered we could just be actually where that happened but at that at this stage in the litigation plaintiff's if we agree that she's not relying on anything else you have a justifiable reliance issue with respect to the unfair trade as to any representations made before or during perhaps but how about representations made after the agreement in the integration c are those no but it's not quite clear from the complaint what post agreement representations are so here you have an argument or a specificity we can hear from your friend on the other side and reply about what specifically satisfies that that i'm done with this line of questioning thanks for for walking me through it thank you or just quarter anything else there the standard is whether it's persuasive as explore us expressed already both night and x then don't categorically say just the action is a nonstarter with respect to  economic ok so i understand your argument about more wins but let's assume one ski still good law all right is accurately represents the state of pennsylvania law or we are bound to fall doesn't  property damage here is that her property is defective poorly constructed created i'm safe environment a violation of building codes that's all paragraph eighteen of a complaint that's not just monetary damage it's not i i don't read the complaint to say that her property is damaged it is just not to her satisfaction effectively is she needs to spend money to make it the way that she wants the house to be so you do you have any  defective leaky poorly constructed house does not amount to property damage that's just economic loss within the economic loss we did not say on your honor if you'd like you'd be happy to submit a property they just doesn't like the way that  of those precedents when it issued that decision it's still hell just to the actually end up in the last doctrine both of those doctrines or the unfair trade practices claims in circumstances such as this and candidly even if the that's why we think that  thank you thank you counsel before we sign off you folks would be good enough to submit some short letter briefs and maybe a week from today on whether the condition of the house is a war counts as property damage i believe that's the the issue that should be this was discussed in this huge in cola who offered to submit some authority for us so if you could submit that those documents to us me a week from today no more than five pages