J-A05037-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

PATRICIA STREINER, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

BAKER RESIDENTIAL OF PENNSYLVANIA, 

LLC.,

Appellee No. 1253 EDA 2015

Appeal from the Order Dated April 2, 2015

In the Court of Common Pleas of Chester County

Civil Division at No(s): No. 2013-08762

BEFORE: OLSON, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED JUNE 09, 2016

Appellant Patricia Streiner appeals from the order entered in the Court 

of Common Pleas of Chester County granting summary judgment in favor of 

Appellee Baker Residential of Pennsylvania, LLC. We affirm.

The lower court provides an apt summary of case history as follows:

PROCEDURAL HISTORY

[Appellant] filed her Complaint on December 12, 2013 alleging: 

Count I – Negligent Misrepresentation and Failure to Disclose 

Material Defects; and Count II – Breach of Implied Warranty of 

Habitability, Reasonable Workmanship and Fitness for Particular 

Purpose based on alleged defects in the construction of her 

home.[1] Baker filed its Answer and New Matter on June 6, 2014. 

____________________________________________

1 Specifically, Appellant averred “[s]ince the time of construction, [Appellant] 

has become aware of certain structural defects in the Property existing at 

the time of settlement including, inter alia, [twelve alleged defects involving 

(Footnote Continued Next Page)
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[Appellant] filed her Answer to Baker’s New Matter on 

September 4, 2014. Baker’s Motion for Summary Judgment 

[attaching its written disclaimer of all implied warranties as 

contained within the parties’ Agreement of Sale] was filed 

November 3, 2014 and [Appellant]’s response was filed on 

December 18, 2014. Both parties filed reply briefs and the Court 

issued the Order which is the subject of this appeal on April 2, 

2015. [Appellant] timely filed her appeal on May 1, 2015.

DISCUSSION

[Appellant]’s complaint alleges the following: On or about July 

24, 2003, [Appellant] signed an Agreement of Sale (Agreement) 

for the construction of a single-family residence. Settlement on 

the property occurred on or about October 1, 2003. Baker 

(along with co-Defendant Iacoabucci Fortress, LLC) are alleged 

to be the builders. According to the Complaint “[s]ince the time 

of construction, [Appellant]s [sic] have [sic] become aware of 

certain structural defects in the Property existing at the time of 

settlement . . .” The Complaint then proceeds to list various 

alleged defects. In support of her claim for Negligent 

Misrepresentation, [Appellant] merely asserts that: “[d]espite 

actual knowledge of the failures and omissions of construction 

stated hereinabove and the material defects which such failures 

and omissions constituted, defendants failed to disclose the 

material defects in the Property to [Appellant]s.” [Appellant] 

further alleges that she justifiably relied upon the nondisclosure. In support of her claim for Breach of Implied 

Warranties, [Appellant] merely alleges that the aforementioned 

alleged defects breach the implied warranties of habitability, 

reasonable workmanship and fitness for a particular purpose.

Paragraph 21 of the Agreement states: “All warranty provisions 

are set forth in the Customer Care Manual delivered to 

[[Appellant]] prior to execution of this Agreement; by execution 

of this Agreement, [[Appellant]] acknowledges receipt, review 

(Footnote Continued) _______________________

substandard materials, construction methods and/or application of sealants 

that impaired the Property’s ability to repel water properly and, 

consequently, caused regular and persistent water infiltration damage to the 

Property of at least $90,000.]” Complaint, filed November 8, 2013, at ¶¶ 

17-20.
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and acceptance of the terms of said Customer Care Manual. ALL 

OTHER EXPRESS OR IMPLIED WARRANTIES ARE EXCLUDED, 

INCLUDING SPECIFICALLY ANY IMPLIED WARRANTIES OF 

MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, 

REASONABLE WORKMANSHIP, OR HABITABILITY.” (emphasis in

original). In addition, [Appellant] applied for and was provided a 

ten year written warranty (“Home Owner’s Warranty”) from 

Western Pacific Mutual Insurance Company [pursuant to the 

Agreement of Sale]. The application specifically states that 

[Appellant] understands and agrees that this warranty is 

provided by Baker in lieu of all other warranties and that Baker 

“makes no warranty, express or implied as to quality, fitness for 

a particular purpose, merchantability, habitability, or otherwise . 

. . .”[2] 

Lower Court Opinion, filed June 29, 2015, at 1-2.3

____________________________________________

2 Specifically, the Home Owner’s Warranty provides:

1. One Year Coverage: Your Builder warrants that for a period 

of one (1) year after the Effective Date of Warranty, 

warranted items will function and operate as presented in the 

Warrant Standards of Year 1, Section III. A. Coverage is 

ONLY available where specific Standards and Actions are 

represented in this Limited Warranty. . . .

2. Two Year Coverage: Your Builder warrants that for a period 

of two (2) years from the Effective Date Of Warranty, specific 

portion of the heating, cooling, ventilating, electrical and 

plumbing systems, as defined in this Limited Warranty, will 

function and operate as presented in the Warranty Standards 

of Years 1 and 2 only, Section III. B. . . .

3. Ten Year Coverage: Major Structural Defects (MSD) are 

warranted for ten (10) years from the Effective Date of 

Warranty. Your Builder is the Warrantor during Years 1 and 2 

of this Limited Warranty and the Insurer is the Warrantor in 

Years 3 through 10.

The effective date of the Home Owner’s Warranty was October 1, 2003, and 

the warranty ran for ten years until September 30, 2013, when it expired. 

Appellant filed the present action on December 12, 2013.

3 Additionally, Paragraph 22 of the Agreement of Sale provides:

Entire Agreement. This writing contains the entire agreement 

between the parties. No representation, claim, statement, 

(Footnote Continued Next Page)
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In granting Baker’s motion for summary judgment, the lower court 

determined that Appellant filed a response resting upon the mere allegations 

of her pleadings and had otherwise disclaimed all implied warranties by 

virtue of clear and specific language contained in the agreement of sale. The 

court opined:

With regard to Count I, [Appellant], who bears the burden of 

proof, has failed to come forward with any factual evidence to 

support her claim. She has put forth nothing other than the bald 

assertions in the Complaint which have been referenced above. 

With regard to Count II, the clauses waiving the implied 

warranties have been fully set forth above and, despite 

[Appellant]’s arguments to the contrary, do comply with the 

criteria set forth in Tyus v. Resta, 476 A.2d 427 (Pa.Super. 

1984).

Opinion at 4. This timely appeal followed.

We set forth our standard of review from the grant of summary 

judgment:

A motion for summary judgment should only be granted if there 

is no genuine issue regarding any material fact, and the moving 

party is entitled to judgment as a matter of law. An appellate 

(Footnote Continued) _______________________

advertising, promotional activity, brochure or plan of any kind 

made prior to the date of this Agreement or contemporaneously 

herewith by the Seller or Seller’s agent, representative, 

salesman or officer shall be binding upon the Seller unless fully 

set forth herein. No agent, representative, salesman or officer of 

the parties hereto has the authority to make or has made any 

statement, agreement, representation or contemporaneous 

agreement, oral or written , in connection therewith modifying, 

adding to or changing the terms and conditions set forth herein. 

No dealing between the parties or customers shall be permitted 

to delete, contradict, vary or add to the terms thereof. . . . 
J-A05037-16

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court may reverse an order granting summary judgment where 

there is an error of law or an abuse of discretion. Because the 

question of whether a genuine issue of material fact exists is one 

of law, appellate review is de novo. In undertaking such review, 

the record is viewed in the light most favorable to the nonmoving party, and all doubts as to whether a genuine issue

exists are resolved against the moving party.

Smith v. Township of Richmond, 82 A.3d 407, (Pa. 2013) (citation 

omitted).

Appellant first argues that the lower court erred in granting summary 

judgment in favor of Baker as to the implied warranty claims because the 

latent defects present in her home were not “terms, conditions or features of 

the Agreement of Sale between the parties.” Appellant’s brief at 9. Such 

latent defects, Appellant maintains, are not the kind that a consumer would 

expect in newly constructed home, and they cannot fairly be said, therefore, 

to have been contemplated in the implied warranty waiver language present 

in the agreement. We disagree.

Pennsylvania law recognizes an implied warranty of 

habitability in contracts where builders-vendors sell new homes 

to residential purchasers. The implied warranty requires that a 

builder, typically more skilled and experienced in the 

construction field than the purchaser, bear the risk that a home 

he built will be functional and habitable in accordance with 

contemporary and community standards. Although the implied 

warranty may be waived by clear and unambiguous contract 

language, such language must be sufficiently particular to inform 

the home purchaser of the right he or she is waiving. 

Furthermore, the contract must always be construed against the 

builder and in order to exclude warranty coverage for latent 

defects, language of disclaimer must refer to its effect on 

specifically designated, potential latent defects.
J-A05037-16

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Pontiere v. Dinert, 627 A.2d 1204, 1206 (Pa.Super. 1993) (internal 

quotations and citations omitted).

In concluding the parties’ contract sufficiently excluded all implied 

warranties covering the home, the lower court relied on this Court’s decision 

in Tyus, supra, in which we recognized that builder-vendors could 

contractually limit or disclaim implied warranties. The very nature of implied 

warranties, Tyus clarified, is that they pertain only to latent defects, as they 

do not “extend to defects of which the purchaser had actual notice or which 

are or should be visible to a reasonably prudent man upon an inspection of 

the dwelling.” Id. at 433 (citations omitted). Moreover, “the warranties of 

habitability and reasonable workmanship are not created by representations 

of a builder-vendor but rather are implied in law and as such, exist 

independently of any representations of a builder-vendor[,] Tyus explained. 

Id. 

Because the contractual clause at issue in Tyus was predicated upon 

representations made by the builder-vendor and made no clear and specific 

reference to its effect upon implied warranties,4 we determined that it failed 

____________________________________________

4

In Tyus, paragraph thirteen of the vendors' contract with the buyers 

stated in pertinent part: 

Buyer has inspected the property or hereby waives the right to 

do so and he has agreed to purchase it as a result of such 

inspection and not because of or in reliance upon any 

representation made by the Seller ... and that he has agreed to 

purchase it in its present condition unless otherwise specified 

(Footnote Continued Next Page)
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to disclaim the warranties of habitability and reasonable workmanship 

implied in the law:

Thus, the integration clause of paragraph thirteen may be 

regarded as sufficient to exclude a matter which one of the 

parties might contend was in fact agreed to prior to the signing 

of the contract. . . . [S]tanding alone, these words are not 

sufficient to exclude an implied warranty, which is applicable 

only by operation of law. Such an exclusion, if desired by the 

parties to a contract for the purchase of a residence, should be 

accompanied by clear, unambiguous language, reflecting the fact 

that the parties fully intended such result. . . . That is, the 

integration clause of paragraph thirteen does not constitute a 

valid limitation of the implied warranties because it fails to 

explain with particularity its purported effect on implied 

warranties.

Therefore, we hold that when the alleged disclaimer of 

implied warranties in paragraph thirteen of the parties' contract 

is strictly construed against the Vendors, the alleged disclaimer

fails because it does not refer to its impact on specific, potential 

latent defects and so does not notify the Buyers of the implied 

warranty protection they are waiving by signing the contract 

supplied by the Vendors.

Id. at 434-35. (internal citation and quotation marks omitted).

In the case sub judice, the disclaimer appearing in Paragraph 21 of the 

Agreement of Sale, supra, clearly, specifically, and, therefore, sufficiently 

notified Appellant that she was waiving all implied warranty protections by 

(Footnote Continued) _______________________

herein. It is further understood that this agreement contains the 

whole agreement between the Seller and the Buyer and there 

are no other terms, obligations, covenants, representations, 

statements or conditions, oral or otherwise of any kind 

whatsoever concerning this sale.

Id. at 432.
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signing the contract supplied by Baker. By definition, the latent defects of 

which she now complains are implicitly covered by implied warranties of 

habitability, workmanship, fitness for a particular purpose, and 

merchantability, all of which Baker conspicuously disclaimed under the 

parties’ agreement. Therefore, we discern no error in the lower court’s 

pronouncement that Appellant is entitled to no relief on this claim.

Our determination in this regard also defeats Appellant’s negligent 

misrepresentation claim as she presents it on appeal. Appellant predicates 

this claim on the argument that Baker induced her purchase through both 

affirmative statements on the quality of the home combined with failures to 

disclose home quality-compromising material defects of which it should have 

been aware. Effectively acknowledging, however, that the alleged defects 

are identical to the those that would be subject to Baker’s disclaimer of all 

implied warranties in the parties’ agreement of sale if deemed valid, 

Appellant argues that she may prevail on the claim because Baker “did not 

limit or disclaim the implied warranties of workmanship or habitability, and 

that the aspect of latent defects and specific features of workmanship were 

neither waived nor excluded.” Appellant’s brief at 12. Our validation of 

Baker’s disclaimer of all implied warranties undercuts the predicate of 

Appellant’s negligent misrepresentation claim, rendering it devoid of merit.5 

____________________________________________

5 There exist other bases upon which to affirm summary judgment with 

respect to Appellant’s negligent misrepresentation claim. First, the claim, 

(Footnote Continued Next Page)
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(Footnote Continued) _______________________

based as it is on pre-contractual statements and nondisclosures allegedly 

made by Baker, would fail under the parole evidence rule, which provides as 

follows:

where the parties, without any fraud or mistake, have 

deliberately put their engagements in writing, the law declares 

the writing to be not only the best, but the only evidence of their 

agreement; that all preliminary negotiations, conversations and 

verbal agreements are merged in and superseded by the 

subsequent written contract; and that unless fraud, accident, or 

mistake be averred, the writing constitutes the agreement 

between the parties, and its terms cannot be added to nor 

subtracted from by parol evidence.

Toy v. Metropolitan Life Ins. Co., 928 A.2d 186, 204 (Pa. 2007) 

(quotation marks and citation omitted). “Once a writing is determined to be 

the parties' entire contract, the parol evidence rule applies and evidence of 

any previous oral or written negotiations or agreements involving the same 

subject matter as the contract is almost always inadmissible to explain or 

vary the terms of the contract.” Youndt v. First Nat. Bank of Port 

Allegany, 868 A.2d 539, 546 (Pa.Super. 2005) (quoting Yocca v. 

Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004)). 

The parties’ written contract makes plain that no implied warranty 

applied to the home. Accordingly, the parole evidence rule bars Appellant’s 

attempt to avoid the disclaimer through invocation of pre-contractual 

conversations, during which Baker’s agents allegedly misrepresented 

through statement and omission the construction quality of the home. 

Relatedly, Appellant fails to direct us to any other language in the contract 

amounting to an express warranty that would contradict or undermine the 

disclaimer of implied warranties, and so she may not prevail on this ground, 

either. See, e.g., Morningstar v. Hallett, 858 A.2d 125, 131 (Pa.Super. 

2004) (holding where contract contained terms creating express warranty as 

to age of horse to be delivered, “as is” clause elsewhere in contract could 

not disclaim that express warranty). 

Second, Appellant posits that she adequately supported her claim with 

allegations that Baker failed to disclose material defects within the home it 

built and, ultimately, sold to her. We disagree. In her complaint, she 

averred Baker “failed to disclose the material defects in the Property to 

plaintiffs . . . despite actual knowledge of the failures and omissions of 

construction . . . [and] under circumstances in which such defendants ought 

to have known the existence of such defects and yet failed to disclose the 

same recklessly or for failure to make a reasonable investigation concerning 

the nature of the Property they were selling.” Complaint, at ¶¶ 22 and 23. 

(Footnote Continued Next Page)
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In her final claim, Appellant asserts the disclaimer of warranties and 

accompanying warranty application she opted to complete as part of the 

Agreement of Sale together formed an unconscionable contract of adhesion. 

She contends she was given no opportunity to challenge or change the 

operative terms of the referenced documents, which, she insists, were 

(Footnote Continued) _______________________

Appellant echoed a similar boilerplate averment, without providing specific 

evidence of fact, in her Response to Baker’s motion for summary judgment, 

which averred Appellant failed to provide any specific facts to establish her 

claim of negligent misrepresentation. Specifically, in her Response Appellant 

asserted she “justifiably relied upon and reasonably believed the 

representations of the Defendant and their agents with regard to the quality 

of the new house being sold to her.” Response, filed December 18, 2014, at 

15. 

Where a motion for summary judgment is based upon 

insufficient evidence of facts, the adverse party must come 

forward with evidence essential to preserve the cause of action. 

If the non-moving party fails to come forward with sufficient 

evidence to establish or contest a material issue to the case, the 

moving party is entitled to judgment as a matter of law. The 

non-moving party must adduce sufficient evidence on an issue 

essential to its case and on which it bears the burden of proof 

such that a jury could return a verdict favorable to the nonmoving party. 

McCarthy v. Dan Lepore & Sons Co., 724 A.2d 938, 940 (Pa.Super. 1998) 

(citation omitted). Accord Swarner v. Mut. Ben. Grp., 72 A.3d 641, 651 

(Pa.Super. 2013) (recognizing Rule 1035.2 obligation placed on non-movant 

plaintiff to offer proof of injuries to avoid entry of summary judgment where 

defendant’s motion for summary judgment alleged failure to produce any 

evidence). Consistent with this authority, we would find Appellant failed to 

produce essential, specific factual support for her claim to avoid summary 

judgment, as Baker’s motion presented documentary support in opposition 

to the negligent misrepresentation claim and otherwise challenged Appellant 

to support her claim with evidence of fact. 
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presented in a “take it or leave it” fashion by a party more sophisticated in 

such matters than she. Her choice, she maintains, was to either accept the 

contractual terms and conditions—which, she claims consisted of uncommon 

language—or, instead, to walk away from the transaction.

“An adhesion contract is a ‘standard-form contract prepared by one 

party, to be signed by the party in a weaker position, usu[ally] a consumer, 

who adheres to the contract with little choice about the terms.’” 

Chepkevich v. Hidden Valley Resort, L.P., 2 A.3d 1174, 1190 (Pa. 2010) 

(quoting Black's Law Dictionary (8th Ed.2004), p. 342). “[T]he 

determination that an adhesion contract is at issue, by definition fulfills the 

second prong of the unconscionability test.” McNulty v. H & R Block, Inc.,

843 A.2d 1267, 1273 n.6 (Pa.Super. 2004) (”[a] determination of 

unconscionability requires a two-fold determination: 1) that the contractual 

terms are unreasonably favorable to the drafter, and 2) that there is no 

meaningful choice on the part of the other party regarding the acceptance of 

the provisions.”).

We discern nothing unconscionable about the warranty disclaimer and 

accompanying warranty in the Agreement of Sale. Both types of 

instruments are fairly commonplace, the disclaimer and warranty at issue 

contain standard language for instruments of their respective kind, and they 

contain no unusual or unexpected terms or conditions that would prove 

difficult to understand. Nor do we find the contract unreasonably favorable 

to Baker as the seller/drafter, as the warranty supplied to Appellant as part 
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of the agreement afforded her substantive protections against various 

malfunctions and defects to her home over the course of ten years. Because 

the parties’ contract was not unconscionable, this claim fails.

Order is affirmed.

Judge Ott joins the memorandum.

Judge Olson concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2016