Pennsylvania Superior Court Rules Second Purchasers Can Sue The David Cutler Group for Defective Stucco Home in Case of First Impression

Filed under: Stucco Home Litigation by Steven F. Fairlie @ November 7, 2012

Fairlie & Lippy, P.C. won a major victory against The Cutler Group, Inc. d/b/a The David Cutler Group, Inc. (“Cutler”) in the Pennsylvania Superior Court. Cutler built a stucco home that leaked, among other problems. Pennsylvania law is clear that the builder of a new home extends an implied warranty of habitability to the initial purchaser of the home. We have handled many suits against builders for defective stucco construction in Montgomery County, Bucks County, Chester County, and Delaware County. In this suit, however, Cutler argued that since the homeowners were subsequent purchasers, that is, they bought their home from the original homeowners, they were barred from suing for the defective construction. No Pennsylvania court had addressed this issue in the past. The problem with Cutler’s argument is that the implied warranty of habitability was adopted in Pennsylvania based on a public policy consideration – that builders, as opposed to homeowners, have more knowledge and control about the building process than the consumer, and therefore should be held accountable for building a product that is not habitable. Further, the Pennsylvania Supreme Court did not want to see Pennsylvania littered with homes that could not be lived in. As a result, the implied warranty of habitability was extended to the construction and sale of all new homes in Pennsylvania. In the case we just won, the Superior Court held that it would make no sense to extend that protection to the first purchaser, but then to let the builder of the defective home off the hook if another family bought the home. Homes are regularly bought and sold, and the Superior Court held that such sales should not create a windfall for the builder – the builder should have to stand behind the product. Builders are protected by the statute of limitations (four years, but tempered by the discovery rule, which holds that the statute of limitations is tolled until the homeowner knew or should have known of the existence of a substantial defect – and further tempered by the repair doctrine, which tolls the statute when a builder says he has repaired a defect) and the statute of repose, which bars a suit against the builder of a home beyond twelve years from the sale regardless of the circumstances. The upshot of this landmark holding is that, for the first time in Pennsylvania, subsequent purchasers of residential homes have a clear right to sue the builder for breaches of the implied warranty of habitability. If this situation applies to you, contact Fairlie & Lippy to discuss your case.


  1. Donna Brun says:

    Hi Steve,
    This is remarkable… congratulations!!
    Hope you are doing well…
    Very Best,

  2. Bob says:

    Wasn’t this overturned in 2014?

  3. Yes, the decision was just recently reversed by the Pennsylvania Supreme Court, which held that allowing subsequent purchasers to recover under the implied warranty of habitability would be tantamount to judicial legislation. Curiously, they did not explain why it was not judicial legislation when the same Pennsylvania Supreme Court created the Implied Warranty of Habitability from the Bench in Elderkin v. Gaskin back in the 1970’s.

  4. Lee says:

    My David cutler stucco house has been 12 years and 1 month. Can I sue builder? since it is more than 12 years.

  5. It would appear not, but you should really sit down for a consultation with a good lawyer, ASAP, and review all of the circumstances of your case to see if there is some way to get past the statute of repose issue. I don’t know of one so I would not let you pay me to take this case.

  6. Jason says:

    What are the implications for first homeowners that file their breach in warranty under the 12 year window (of the statute of repose)? How guaranteed of a settlement, in your opinion, is in order for suits such as Unfair Trade Practice? (assuming that this is probably the best compensation?)

  7. This decision was ultimately reversed by the Pennsylvania Supreme Court, but it had no bearing on the cases of first homeowners. I can’t make any blanket statements about any category of case as these cases are very complex and should be evaluated on a case by case basis by an experienced lawyer who regularly handles construction defect litigation. I can tell you that anyone who owns a stucco home that is experiencing leaking or mold issues should speak immediately with a lawyer about the best steps to take.

  8. Cathleen says:

    We are 2nd owners of a Wilkinson built home in Chester County (built in 2003, purchased by us at the end of 2009). Please can you clarify if there is any recourse for stucco and/or window repairs? We believe that some (if not all) of the windows in our home were not installed properly, resulting in some leaking during heavy storms. We recently had a moisture intrusion study done of the entire house … all but one spot was within normal range but we are concerned about damage as a result of storms.

  9. Please read through my prior postings about the statute of repose.

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