J-A07044-17

2017 PA Super 192

*Retired Senior Judge assigned to the Superior Court.

RICHARD POLLOCK, AN ADULT 

INDIVIDUAL, CHERYL POLLOCK, AN 

ADULT INDIVIDUAL, PAUL L. KUTCHER, 

AN ADULT INDIVIDUAL, AND CYNTHIA 

P. KUTCHER, AN ADULT INDIVIDUAL,

 Appellants

 

v.

NATIONAL FOOTBALL LEAGUE AND 

DALLAS COWBOYS FOOTBALL CLUB, 

LTD.

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

 No. 1611 WDA 2016

Appeal from the Order Entered September 27, 2016

in the Court of Common Pleas of Allegheny County 

Civil Division at No(s): GD-14-004867

BEFORE: OLSON, STABILE, and STRASSBURGER,* JJ.

OPINION BY STRASSBURGER, J.: FILED JUNE 21, 2017

Richard Pollock, Cheryl Pollock, Paul L. Kutcher, and Cynthia P. 

Kutcher (Plaintiffs, collectively) appeal from the September 27, 2016 order 

that denied Plaintiffs’ motion for leave to file a second amended complaint 

against the National Football League (the NFL).1 We affirm. 

The trial court summarized the history of the case as follows. 

Plaintiffs are four ticketholders for Super Bowl XLV held in 

Arlington, Texas, on February 6, 2011. Plaintiffs were among 

the group of ticketholders who were unable to watch the game 

from the seats designated on their tickets because these were 

temporary seats not approved by safety authorities in time for 

 

1 The order also granted Plaintiffs’ request to discontinue their claims against 

the Dallas Cowboys Football Club, Ltd. Hence, although quotations in this 

memorandum reference “defendants” in this action, the NFL is the only 

defendant involved in this appeal. 
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use at the game. No adequate seats were offered to Plaintiffs. 

This lawsuit arises out of Plaintiffs’ being denied access to the 

seats designated on the tickets and defendants’ failure to advise 

Plaintiffs when they purchased the tickets that they would be 

receiving temporary seats that did not yet exist and that there 

was no guarantee that an occupancy permit would be issued by 

the City of Arlington for these seats prior to the game.

Initially, this lawsuit was commenced in proceedings at 

Pollock v. National Football League and Dallas Cowboys 

Football Club, Ltd., [2013 WL 1102823 (W.D.Pa. March 15, 

2013),] filed in the United States District Court for the Western 

District of Pennsylvania (2:12-cv-130). The initial complaint 

raised tort claims, including claims based upon the [Unfair Trade 

Practices and] Consumer Protection Law [(UTPCPL), which allows 

recovery of treble damages, costs, and attorney fees, 73 P.S. 

§ 201-9.2(a)]. In the initial complaint, Plaintiffs also alleged 

that their Super Bowl tickets constituted valid, enforceable 

contracts against the NFL and asserted a claim for a breach of 

contract based on the NFL’s failure to provide the seats 

designated on the face of the tickets.

Defendants filed a motion to dismiss all of Plaintiffs’ tort 

claims under the Pennsylvania economic loss/gist of the action 

doctrines. In response to this motion, Plaintiffs amended their 

complaint to abandon their claim for breach of contract while 

reasserting their tort claims arising out of the NFL’s failure to 

provide the seating reflected by the tickets. Defendants then 

filed a motion to dismiss in which defendants contended that all 

of plaintiffs’ claims in their amended complaint (which no longer 

included breach of contract claims) were barred by the gist of 

the action/economic loss doctrine notwithstanding Plaintiffs’ 

decision not [to] reassert a breach of contract claim. The district 

court agreed.

At page 6 of a memorandum order dated March 15, 2013, 

the district court ruled: “Plaintiffs’ claims for negligent 

misrepresentation (Count II and III) are barred by the gist of the

action doctrine because the tort claims are nothing more than a 

breach of the contractual obligations created by the purchase of 

the Super Bowl tickets.” At page 11, the court ruled: “Plaintiffs’ 

[UTPCPL] and fraudulent inducement claims are barred by the 

gist of the action doctrine.” The court also stated at page 11 
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that the economic loss doctrine prohibits Plaintiffs from 

recovering in tort economic losses to which their entitlement 

flows only from contract.[2]

Defendants also moved for dismissal of the entire action 

because of Plaintiffs’ failure to satisfy the amount in controversy 

requirement, and the district court ruled that the action must be 

dismissed for want of jurisdiction given the lack of viable claims 

to support awards for punitive damages, attorney fees, and 

triple damages. On appeal, the [Third Circuit] court of appeals 

agreed that the district court did not err in granting defendants’ 

motion to dismiss for failure to state a claim and defendants’ 

motion to dismiss for lack of jurisdiction. [Pollock v. Nat’l 

Football League, 553 F. App’x 270 (3rd Cir. 2014).]

Trial Court Opinion, 9/27/2016, at 1-2 (some capitalization altered).

 

2

“The gist of the action doctrine prohibits a plaintiff from re-casting ordinary 

breach of contract claims into tort claims.” B.G. Balmer & Co. v. Frank 

Crystal & Co., Inc., 148 A.3d 454, 468 (Pa. Super. 2016), appeal denied, 

No. 725 MAL 2016, 2017 WL 1015542 (Pa. Mar. 14, 2017).

Under Pennsylvania law, a cause of action framed as a tort but 

reliant upon contractual obligations will be analyzed to determine 

whether the cause of action properly lies in tort or contract. In 

general, courts are cautious about permitting tort recovery

based on contractual breaches. In keeping with this principle, 

this Court has recognized the gist of the action doctrine, which 

operates to preclude a plaintiff from re-casting ordinary breach 

of contract claims into tort claims. Where fraud claims are 

intertwined with breach of contract claims and the duties 

allegedly breached are created and grounded in the contract 

itself, the gist of the action is breach of contract. Thus, claims of 

fraud in the performance of a contract are generally barred 

under the gist of the action doctrine.

Autochoice Unlimited, Inc. v. Avangard Auto Fin., Inc., 9 A.3d 1207, 

1212 (Pa. Super. 2010) (citation and quotation marks omitted; emphasis in 

original). Similarly, “Pennsylvania law generally bars claims brought in 

negligence that result solely in economic loss.” Gongloff Contracting, 

L.L.C. v. L. Robert Kimball & Assocs., Architects & Engineers, Inc., 

119 A.3d 1070, 1076 (Pa. Super. 2015). 
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On March 20, 2014, Plaintiffs transferred the action from federal to 

state court pursuant to 42 Pa.C.S. § 5103. More than two years passed with 

no docket activity until Plaintiffs filed a motion for leave to file a second 

amended complaint. The proposed complaint included three counts: (1) 

fraudulent or negligent inducement, (2) violation of the UTPCPL, and (3) 

breach of contract. Motion, 4/4/2016, at Exhibit A. The NFL opposed the 

motion, claiming that the tort claims were barred by the doctrines of res 

judicata and collateral estoppel, and that the contract claim was barred by 

the statute of limitations. Brief in Opposition, 5/17/2016, at 6-13. The trial 

court denied Plaintiffs’ motion by memorandum and order of September 27, 

2016. Plaintiffs thereafter timely filed a notice of appeal.

Plaintiffs present the following questions for this Court’s review. 

1. Whether a federal district court order, dismissing 

[Plaintiffs’] tort claims under Fed.R.Civ.P. 12(b)(6) and 

dismissing the federal court action for want of subject matter 

jurisdiction and without prejudice to Plaintiffs[’] refiling the 

action in state court as authorized by 42 Pa.C.S. § 5103(b), 

prohibits [Plaintiffs] from re-filing tort actions and an action for 

violation of the [UTPCPL] against [the] NFL in state court based 

on res judicata or collateral estoppel principles? 

2. Whether 42 Pa.C.S. § 5103(b) preserves [Plaintiffs’] 

right to raise the tort claims, claim for violation of the UTPCPL 

and breach of contract claim against [the] NFL alleged in 

[Plaintiffs’] proposed second amended complaint after 

[Plaintiffs’] action has been dismissed by a federal district court 

for want of subject matter jurisdiction and without prejudice to 

Plaintiffs refiling the action in state court as authorized by 42 

Pa.C.S. § 5103(b)?
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3. Whether 42 Pa.C.S. § 5103 is unconstitutionally 

vague and ambiguous?

4. In the alternative, whether the averments stated in 

[Plaintiffs’] proposed second amended complaint merely amplify 

those stated in [their] first amended complaint so as to permit 

[them] to plead a breach of contract action in [the] proposed 

second amended complaint?

Plaintiffs’ Brief at 3-4 (trial court answers omitted; some capitalization 

altered). 

We begin our consideration of Plaintiffs’ questions with our standard of 

review.

Our standard of review of a trial court’s order denying a plaintiff 

leave to amend its complaint ... permits us to overturn the order 

only if the trial court erred as a matter of law or abused its 

discretion. The trial court enjoys broad discretion to grant or 

deny a petition to amend. Although the court generally should 

exercise its discretion to permit amendment, where a party will 

be unable to state a claim on which relief could be granted, leave 

to amend should be denied.

Schwarzwaelder v. Fox, 895 A.2d 614, 621 (Pa. Super. 2006) (citations 

and quotation marks omitted). 

Here, the trial court denied Plaintiffs leave to amend their complaint to 

plead the tort claims stated in counts I and II of Plaintiffs’ proposed second 

amended complaint because it held that those claims were barred by res 

judicata and/or collateral estoppel. Trial Court Opinion, 9/27/2016, at 3. 

Plaintiffs argue that the trial court’s ruling is contrary to 42 Pa.C.S. § 5103. 

Section 5103 provides as follows, in relevant part.
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(a) General rule.--[] A matter which is within the exclusive 

jurisdiction of a court or magisterial district judge of this 

Commonwealth but which is commenced in any other tribunal of 

this Commonwealth shall be transferred by the other tribunal to 

the proper court or magisterial district of this Commonwealth 

where it shall be treated as if originally filed in the transferee 

court or magisterial district of this Commonwealth on the date 

when first filed in the other tribunal.

(b) Federal cases.--

(1) Subsection (a) shall also apply to any matter 

transferred or remanded by any United States court for a 

district embracing any part of this Commonwealth. In 

order to preserve a claim under Chapter 55 (relating to 

limitation of time), a litigant who timely commences an 

action or proceeding in any United States court for a 

district embracing any part of this Commonwealth is not 

required to commence a protective action in a court or 

before a magisterial district judge of this Commonwealth. 

Where a matter is filed in any United States court for a 

district embracing any part of this Commonwealth and the 

matter is dismissed by the United States court for lack of 

jurisdiction, any litigant in the matter filed may transfer 

the matter to a court or magisterial district of this 

Commonwealth by complying with the [requisite] transfer 

provisions....[3] 

42 Pa.C.S. § 5103.

As Plaintiffs properly note, the “policy behind 42 Pa.C.S. § 5103 is to 

preserve a claim or cause of action timely filed in federal court on the 

ground that the claimant should not lose the opportunity to litigate the 

merits of the claim simply because the claimant erred regarding 

federal jurisdiction.” Plaintiffs’ Brief at 23 (emphasis added) (citing 

 

3

Plaintiffs’ compliance with the transfer provisions of the statute is not 

disputed. 
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Commonwealth v. Lambert, 765 A.2d 306, 320 (Pa. Super. 2000)). 

However, Plaintiffs go on to contend that this statute preserved their right to 

litigate their tort claims in state court after the federal court dismissed the 

complaint for lack of jurisdiction. Id. at 25. This latter contention ignores 

the fact that the federal court’s rulings were based upon the merits of the 

tort claims. 

Plaintiffs stated both tort and contract claims in their initial complaint 

filed in federal court. Pollock, 2013 WL 1102823, at *2. After the NFL 

moved to dismiss the tort claims under the gist-of-the-action and economic 

loss doctrines, Plaintiffs amended their complaint to state only tort claims, 

and expressly disavowed that they had any contractual relationship with the 

NFL. Id. The NFL sought to have Plaintiffs’ amended complaint dismissed 

based upon the gist of the action sounding in contract. Id. The district 

court agreed with the NFL:

Here, the parties’ obligations arise solely from [P]laintiff[s’] 

purchase and the NFL’s sales of the Super Bowl tickets. Any 

duties imposed on defendants were created as a result of those 

transactions. And the alleged breach was the failure to provide 

the very essence of what the parties’ contract obligated 

defendants to provide: admission to and a spectator seat for the 

game. The asserted breach gives rise to liability grounded in the 

contract and [P]laintiffs’ damages result from defendants’ failure 

to provide what was promised by sales of the tickets.

Id. at *5. See also id. at *7 (“[P]laintiffs’ intentional fraud claims are 

barred by the economic loss doctrine.”). 
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Having determined that Plaintiffs failed to state viable tort claims, the 

district court considered whether Plaintiffs could recover “under any viable 

theory” the requisite $75,000 necessary to satisfy the threshold for diversity 

jurisdiction in federal court under 28 U.S.C. § 1332. Id. at *9. The district 

court examined the amounts of economic losses sustained by Plaintiffs and 

found that the allegations amounted to “actual losses of $2,384.50 each for 

the Pollocks and $954.21 for each of the Kutchers.” Id. Thus, rather than 

allowing Plaintiffs to amend the complaint to raise the contract claims that 

were supported by the facts alleged, the district court dismissed the action 

for lack of jurisdiction. Id. The order effectuating the dismissal indicated 

that it was without prejudice for Plaintiffs to refile the action in state court 

under section 5103. Id. at *1. 

Plaintiffs unsuccessfully appealed the district court’s decision. The 

Third Circuit Court of Appeals held as follows. 

[Plaintiffs] have exercised a great deal of creativity in 

construing their claims as sounding in tort and statutory fraud. 

Yet, the inescapable fact is that the entire suit is grounded in 

their purchase of tickets, commonly regarded as revocable 

licenses, to a sporting event. The tickets created all of the 

obligations and duties owed by the [NFL] to [Plaintiffs].... The 

essence of the suit is that [Plaintiffs] suffered damages because 

the [NFL] did not fulfill its obligation to give them access to 

particular seats during the 2011 Super Bowl game, as specified 

on their tickets. The contracts are inseparable from their claims.

We conclude that, in spite of [Plaintiffs’] efforts to express 

their claims as negligent misrepresentation against the [NFL]..., 

these disputes sound in contract. Moreover, their contention 

that the [NFL] engaged in fraudulent misrepresentation and 
J-A07044-17

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fraudulent inducement are based upon, essentially, the same 

acts as the negligence counts, and their assertions of injury and 

pleas for relief inextricably arise from the alleged breach of the 

contracts at issue. The district court ruled that [Plaintiffs] had a 

remedy in contract law for any actual and consequential 

monetary losses. We agree. The district court properly 

dismissed all of these claims. 

* * *

Finally, without any legitimate basis to assert punitive 

damages, attorney’s fees, treble damages, or additional 

compensation for losing a “once in a lifetime opportunity” to 

view the sporting event from their promised seats, the pleadings 

do not provide any reasonable means for each [Plaintiff] to plead 

contractual damages that meet the jurisdictional threshold. 28 

U.S.C. § 1332(a). The district court appropriately assessed 

[Plaintiffs’] losses to be far below the statutory minimum and 

this reasonably grounded its decision to dismiss.

Pollock, 553 F. App’x at 270-71 (footnotes and unnecessary capitalization 

omitted).

From the above it is abundantly clear that Plaintiffs fully litigated their 

tort claims in federal court and lost, not because the federal court 

determined that it lacked jurisdiction over the tort claims, but because those 

claims were not viable on their merits. As Plaintiffs’ tort claims were not 

dismissed because they filed them in the wrong court, section 5103 did not 

preserve those claims for litigation in state court.4 

 

4 See, e.g., Lambert, 765 A.2d at 320 (“Section 5103 allows the federal 

court to transfer an erroneously filed case to the Court of Common Pleas, 

rather than dismissing it outright. The stated policy behind this section is to 

preserve a claim or cause of action timely filed in federal court on the 

ground that the claimant should not lose her opportunity to litigate the 

merits of the claim simply because she erred regarding federal jurisdiction. 
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Rather, after transfer of the action to state court, Plaintiffs’ tort claims 

were barred under the doctrines of res judicata, collateral estoppel, and/or 

law of the case.5

Under the doctrine of res judicata, or claim preclusion, a 

final judgment on the merits by a court of competent jurisdiction 

will bar any future action on the same cause of action between 

the parties and their privies. The doctrine therefore forbids 

further litigation on all matters which might have been raised 

and decided in the former suit, as well as those which were 

actually raised therein. Similarly, [t]he doctrine of collateral 

estoppel or issue preclusion prevents a question of law or an 

issue of fact that has once been litigated and fully adjudicated in 

a court of competent jurisdiction from being relitigated in a 

subsequent suit.

Mariner Chestnut Partners, L.P. v. Lenfest, 152 A.3d 265, 286 (Pa. 

Super. 2016) (internal citations and quotation marks omitted).

While res judicata and collateral estoppel apply to bar relitigation of 

claims or issues in a subsequent action that were subject to a final judgment 

in a prior action, the law of the case doctrine exists to prevent a party from 

relitigating claims or issues that have been resolved previously within the 

 

Thus, the transfer statute ameliorates the hardship on litigants who 

inadvertently file their action in the wrong place.”) (internal citations and 

quotation marks omitted). 

5 The NFL argued, and the trial court agreed, that res judicata was applicable 

to Plaintiffs’ proposed claims. However, given that this instant action is a 

continuation of the federal action, rather than a second, subsequent action 

initiated after the federal action was concluded, it is not clear that the 

technical requirements of res judicata have been met. Therefore, we also 

consider whether law-of-the-case doctrine supports the trial court’s exercise 

of discretion in ruling upon Plaintiffs’ motion to amend. Plasticert, Inc. v. 

Westfield Ins. Co., 923 A.2d 489, 492 (Pa. Super. 2007) (noting that this 

Court may affirm the trial court on any valid basis).
J-A07044-17

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same action, either in a prior appeal or by a judge of coordinate jurisdiction. 

Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003) (“Among rules that 

comprise the law of the case doctrine are that: (1) upon remand for further 

proceedings, a trial court may not alter the resolution of a legal question 

previously decided by the appellate court in the matter; (2) upon a second 

appeal, an appellate court may not alter the resolution of a legal question 

previously decided by the same appellate court; and (3) upon transfer of a 

matter between trial judges of coordinate jurisdiction, the transferee trial 

court may not alter the resolution of a legal question previously decided by 

the transferor trial court.” (internal quotation marks and citation omitted)). 

All three doctrines are based upon similar policy determinations, 

including the idea that a party should not get a second bite at the apple 

when he or she had a full and fair opportunity the first time. See, e.g., 

Lebeau v. Lebeau, 393 A.2d 480, 482 (Pa. Super. 1978) (“The policies 

underlying both [res judicata and collateral estoppel] are the same: to 

minimize the judicial energy devoted to individual cases, establish certainty 

and respect for court judgments, and protect the party relying on the prior 

adjudication from vexatious litigation.”); Plaxton v. Lycoming Cty. Zoning 

Hearing Bd., 986 A.2d 199, 208 (Pa. Cmwlth. 2009) (“Collateral estoppel is 

based on the policy that a losing litigant deserves no rematch after a defeat 

fairly suffered, in adversarial proceedings, on an issue identical in substance 

to the one he subsequently seeks to raise.”) (citation and internal quotation 
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marks omitted); Commonwealth v. Gacobano, 65 A.3d 416, 419–20 (Pa. 

Super. 2013) (“The various rules which make up the law of the case doctrine 

serve not only to promote the goal of judicial economy ... but also operate 

(1) to protect the settled expectations of the parties; (2) to insure uniformity 

of decisions; (3) to maintain consistency during the course of a single case; 

(4) to effectuate the proper and streamlined administration of justice; and 

(5) to bring litigation to an end.”).

Pursuant to the policies underlying the doctrines of res judicata, 

collateral estoppel, and law of the case, Plaintiffs should not now be entitled 

to a second chance to litigate their tort claims before a different tribunal. 

Therefore, we hold that the trial court did not abuse its discretion in denying 

Plaintiffs’ leave to reassert their tort claims in their second amended 

complaint.6 

Having determined that the trial court did not err in refusing to allow 

Plaintiffs to relitigate their tort claims, we consider whether the trial court 

abused its discretion in denying Plaintiffs leave to amend their complaint to 

state contract claims. As noted, the federal court dismissed Plaintiffs’ action 

without prejudice for them to seek a remedy in state court for the NFL’s 

 

6 Our decision is not altered by the fact that the federal court dismissed the 

action without prejudice for Plaintiffs to transfer the case to state court. It is 

clear from the federal court opinions that the “without prejudice” language 

referred to contract recovery, not the tort claims. See, e.g., Pollock, 553 

F. App’x at 271 (“[T]he pleadings do not provide any reasonable means for 

each [Plaintiff] to plead contractual damages that meet the jurisdictional 

threshold.”). 
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breach of its contracts with Plaintiffs. However, the trial court ruled that the 

statute of limitations barred the breach of contract claims. Trial Court 

Opinion, 9/27/2016, at 4.

Plaintiffs contend that they are entitled to relief from this Court under 

one of the following theories: (1) the statute of limitations does not bar the 

contract claims by virtue of the application of section 5103 because they 

pled them in their original complaint in federal court, Plaintiffs’ Brief at 26; 

or, in the alternative, (2) the addition of contract claims merely amplifies the 

timely-filed allegations, id. at 33-34.

We disagree. Plaintiffs abandoned their contract claims in federal 

court by filing an amended complaint omitting the contract claims. Hionis 

v. Concord Twp., 973 A.2d 1030, 1036 (Pa. Cmwlth. 2009) (citing Freeze 

v. Donegal Mut. Ins. Co., 470 A.2d 958, 960 n.5 (Pa. 1983)) (“An 

amended complaint has the effect of eliminating the prior complaint.”). 

Thus, there was no contract claim pending when the federal court dismissed 

the action for lack of jurisdiction and Plaintiffs transferred the action from 

federal court to state court in March 2014. Plaintiffs consciously chose to 

forego their contract claims in pursuit of higher-damage tort claims; they did 

not lose the chance to seek a remedy for breach of contract “simply because 

[they] erred regarding federal jurisdiction.” Lambert, 765 A.2d at 320. As 

such, no contract claim transferred to state court when Plaintiffs effectuated 

the transfer through section 5103.
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The import of section 5103 to this case is that Plaintiffs’ original 

complaint and amended complaint must be treated as if the action had been 

litigated in state court from day one. Under section 5103, no claims stated 

in the complaint but dismissed for lack of jurisdiction are barred by the 

statute of limitations. In other words, Plaintiffs’ motion for leave to file a 

second amended complaint is subject to the same analysis as it would have 

been had Plaintiffs filed the original complaint in the Allegheny County Court 

of Common Pleas in February 2012, filed the amended complaint there in 

June 2012 omitting the contract claims, and then sought to file another 

amended complaint in April 2016, well beyond four years after Superbowl 

XLV. 

Leave to amend a complaint is to be liberally granted; however, 

“amendment is not permitted to present a new cause of action where the 

statute of limitations has expired.” Blackwood, Inc. v. Reading Blue 

Mountain & N. R. Co., 147 A.3d 594, 598 (Pa. Super. 2016). “An 

amendment states a new cause of action where the amendment rests on a 

different legal theory, basis for recovery or relationship between the parties 

than did the original pleading.” Am. Motorists Ins. Co. v. Farmers Bank 

& Trust Co. of Hanover, 644 A.2d 1232, 1235 (Pa. Super. 1994).

It is beyond cavil that breach of contract is a different legal theory 

than a tort claim. See, e.g., B.G. Balmer & Co, 148 A.3d at 469 (“The 

critical conceptual distinction between a breach of contract claim and a tort 
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claim is that the former arises out of breaches of duties imposed by mutual 

consensus agreements between particular individuals, while the latter arises 

out of breaches of duties imposed by law as a matter of social policy.”). It is 

also clear that the facts pled in Plaintiffs’ amended complaint filed in federal 

court supported a breach of contract claim. Based upon this, Plaintiffs argue 

that “it would be disingenuous for [the] NFL to claim the averments stated in 

the last pleading filed in the federal court action ... were insufficient to place 

them on notice of the existence of the claim or that they would somehow be 

prejudiced” by Plaintiffs’ pursuing the contract claim proposed in the second 

amended complaint. Plaintiffs’ Brief at 31 n.5. 

What this Court finds disingenuous is Plaintiffs’ arguing that the NFL 

should have expected to defend a claim for breach of contract after Plaintiffs 

represented over and over again, in at least ten different filings in the 

federal district and appellate courts, that there was no contractual 

relationship between Plaintiffs and the NFL, that the operative complaint 

stated no allegations of a contract, and that it would be impossible for 

Plaintiffs to state any contract claim. See Trial Court Opinion, 9/27/2016, at 

Attachment 1 (quoting four pages of Plaintiffs’ denials of a contract with the 

NFL). Plaintiffs had ample opportunity to seek recovery from the NFL for its 

failure to deliver the seats it agreed to provide to Plaintiffs. They chose and 

persisted in pursuing an unviable path for recovery, and ultimately waited 

too long to follow the proper one. 
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Upon this record, we conclude that the trial court acted within its 

discretion in denying Plaintiffs’ leave to amend their complaint to state a 

breach of contract claim.7

Order affirmed. 

 

7 As an alternative argument, Plaintiffs contend that 42 Pa.C.S. § 5103 is 

unconstitutionally vague in that it fails “to give fair notice of what a litigant 

must do” to avoid the bar of the statute of limitations on cases transferred 

from federal court. Plaintiffs’ Brief at 32. Because the record does not 

indicate that Plaintiffs notified the attorney general of their constitutional 

challenge to the statute as required by Pa.R.C.P. 235 and Pa.R.A.P. 521(a), 

the claim is waived. See, e.g., In re A.H., 763 A.2d 873, 880 (Pa. Super. 

2000). Plaintiffs argue that notice to the Attorney General was not required 

because theirs is an as-applied rather than a facial challenge to the 

constitutionality of the statute. Plaintiffs’ Reply Brief at 15-16. Even if we 

were convinced that that is an accurate portrayal of Plaintiffs’ challenge, we 

would still find waiver. Plaintiffs’ argument regarding the constitutionality of 

section 5103 is woefully underdeveloped, failing to offer any discussion of 

the applicable constitutional standards, let alone citation to compelling 

authority to overcome the “strong presumption in the law that legislative 

enactments do not violate the Constitution.” Commonwealth v. Packer, 

798 A.2d 192, 199-200 (Pa. 2002). See also Wirth v. Commonwealth, 

95 A.3d 822, 837 (Pa. 2014) (holding claim was waived for 

underdevelopment). 

 Moreover, Plaintiffs’ claim is patently meritless. Section 5103 operated to 

give Plaintiffs precisely what its language indicated: treatment of the action 

as if it had been filed in state court initially. Had Plaintiffs sought to amend 

their complaint to state contract claims at the time the case was transferred 

to state court, or at any time before February 2015, the statute of 

limitations would not have expired. See 42 Pa.C.S. § 5525(a) (providing a 

four-year statute of limitations for actions upon a contract). However, 

Plaintiffs waited more than two years after the transfer before they sought 

leave in April 2016 to add a contract claim. It was not any ambiguity in 

section 5103 that deprived Plaintiffs of their right to pursue a remedy in 

contract; rather, it was a lack of diligence in observing the deadline imposed 

by the statute of limitations. That lack of diligence would have led to the 

same result had the entirety of the litigation of the case taken place in state 

court.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/21/2017