Photo: Flickr user hyku via Wikimedia Commons.

The clock has run out on a Florida lawyer’s long-running Pennsylvania lawsuit against the National Football League over a seat snafu at Super Bowl XLV.

Brandon, Florida-based attorney Paul L. Kutcher sued the NFL in 2013 after he and his wife found themselves among a group of Super Bowl ticketholders who were assigned temporary seats for Super Bowl XLV in Arlington, Texas, that ultimately were not approved by the city’s safety authorities. The plaintiffs were therefore unable to watch the game from the seats designated on their tickets and allegedly not provided with an adequate alternative.

The Pennsylvania Supreme Court denied allocatur in the case Feb. 8, leaving in place a Superior Court ruling from last June that dismissed the plaintiffs’ breach of contract claims as time-barred and their tort claims as precluded by the doctrines of res judicata and collateral estoppel.

The original complaint was filed by Kutcher in the U.S. District Court for the Western District of Pennsylvania on behalf of himself, his wife and co-plaintiffs Richard and Cheryl Pollock, a father and daughter from Allegheny County who were also shut out of the Super Bowl seats they purchased. That complaint included tort claims for negligent misrepresentation, fraudulent inducement and violations of the Unfair Trade Practices and Consumer Protection Law (UTPCPL) along with breach of contract claims. But after the NFL moved to dismiss the tort claims under Pennsylvania’s economic loss and gist of the action doctrines, the plaintiffs filed an amended complaint with the breach of contract claims removed.

A federal district judge tossed the case, finding that the plaintiffs failed to put forth any viable tort claims because the case sounded in contract, therefore requiring dismissal for failure to state a claim. In addition, because the damages fell far below the $75,000 threshold for diversity jurisdiction in federal court, the judge also granted the defendants’ motion to dismiss for lack of jurisdiction but did so without prejudice so that the plaintiffs would have the option to pursue a remedy in state court.

In 2014, after the U.S. Court of Appeals for the Third Circuit affirmed the lower court’s decision, the plaintiffs transferred the action to the Allegheny County Court of Common Pleas. In 2016, they filed a second amended complaint alleging fraudulent or negligent inducement, violation of the UTPCPL and breach of contract.

But Allegheny County Senior Judge R. Stanton Wettick Jr. dismissed the case in its entirety in September 2016, finding the tort claims barred by collateral estoppel and res judicata and the breach of contract claims barred by the statute of limitations. The Superior Court affirmed Wettick’s ruling last June.

While the plaintiffs argued that 42 Pa.C.S. Section 5103 entitled them to refile their tort claims in state court because their federal suit was dismissed for lack of jurisdiction, Wettick and the Superior Court rejected this notion, finding that the tort claims were actually disposed of on the merits by the federal courts.

In support of this finding, the Superior Court pointed to a passage from the Third Circuit’s opinion that stated, in part, “‘[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. … 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 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.’”

Superior Court Senior Judge Eugene B. Strassburger III, writing for a three-judge panel, said that passage summarizing the Third Circuit’s ruling made it “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.”

The appellate panel, which also included Judges Judith Ference Olson and Victor P. Stabile, further affirmed Wettick’s dismissal of the contract claims as time-barred because the “plaintiffs abandoned their contract claims in federal court by filing an amended complaint omitting the contract claims.”

“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,’” Strassburger said.

Kutcher, reached Monday, said he was still considering whether to ask the state Supreme Court to reconsider taking up his appeal.

“I don’t understand how the court can go ahead and say that res judicata and collateral estoppel principles allow federal courts to interpret state court law,” he said. “That’s essentially what they’ve done here.”

Counsel for the NFL, Daniel H. Gold of Haynes and Boone in Dallas, declined to comment.