In the world of sports there is an old adage: "If you're not first, you're last." While there has never been a doubt that purchasers of new construction are afforded various protections under Pennsylvania law, when it comes to subsequent purchasers, the law has been less than clear. Recent case law, however, out of the Superior Court of Pennsylvania and the U.S. District Court for the Western District of Pennsylvania clarifies the rights of subsequent purchasers against builders. This case law establishes that a subsequent purchaser of residential property may bring a claim against a builder for breach of implied warranty of habitability and that a contractor owes a duty to subsequent purchasers of commercial property. As such, while it may still be necessary to be first to succeed in the sports arena, courts in Pennsylvania are making it clear, as a matter of public policy, that being second in the construction industry is good enough.
In June 2006, according to Conway v. Cutler Group, 57 A.3d 155 (Pa. Super. Ct. 2012), three years after the Cutler Group constructed and delivered a property to David and Holly Fields, Michael and Deborah Conway purchased the property. In April 2008, the Conways discovered water infiltration at the property. A subsequent evaluation by an engineering and architecture firm revealed that the property had several latent construction defects, including improper flashing, insufficient sealed expansion joints, a lack of expansion or control joints, lack of weep screed and improperly installed stucco.
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