The Lawletter Vol 39 No 4
In a case involving the four plaintiffs' purchase of tickets to Super Bowl XLV (played on February 6, 2011; Packers 31, Steelers 25), the U.S. District Court for the Western District of Pennsylvania examined the causes of action asserted by the plaintiffs based upon the alleged failure of the National Football League ("NFL") and the Dallas Cowboys Football Club, Ltd., to provide a suitable facility for viewing the game. Pollock v. Nat'l Football League, No. 2:12cv130, 2013 WL 1102823 (W.D. Pa. Mar. 15, 2013), aff'd, No. 13-1987, 2014 WL 503640 (3d Cir. Feb. 10, 2014).
In early January 2011, the plaintiffs submitted applications for Super Bowl XLV tickets through a ticket lottery with the Pittsburgh Steelers Sports, Inc., an agent of the NFL. Each application was accompanied by $800, and the NFL issued four tickets, with each ticket designating a specific seat in Dallas Cowboys Stadium in Arlington, Texas, and stating that it "'grants entry in the stadium and a spectator seat for the game.'" Id. at *1. The stadium's normal seating capacity was 80,000, and the defendant Dallas Cowboys Football Club, Ltd., desired to construct temporary seating to increase the stadium's seating capacity for the Super Bowl to more than 100,000. Construction of the temporary seating commenced prior to the submission of complete construction documents and the acquisition of occupancy permits (a permit was conditionally issued). Construction problems arose, and a number of issues remained unresolved as of the night before game day. Additionally, the defendants failed to commit sufficient resources to the undertaking so that an occupancy permit could be issued for every seat by game day, and the seating contractor failed to have adequate manpower available. As a result, the defendants failed to complete the construction of at least 2,400 seats.
The plaintiffs were
(1) initially denied entry into the stadium, (2) required to spend hours traversing about and around the stadium in an effort to gain admission, (3) unable to obtain information about why they were unable to get in, (4) relocated to a section within the stadium that did not have seats and had an obstructed view, and (5) only able to watch the game without a seat either on monitors or with an obstructed view of the field.
In their initial complaint, the plaintiffs alleged breach of contract, based upon the defendants' alleged failure to provide the seats designated on the face of the tickets, and four tort claims: fraudulent misrepresentation by concealment, negligent/gross negligent misrepresentation by concealment, violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law, and fraudulent inducement. The defendants moved to dismiss all of the causes of action. The plaintiffs amended their complaint, dropping the cause of action for breach of contract but reasserting all four tort claims. The defendants moved to dismiss the amended complaint on the basis of Pennsylvania's "economic loss"/"gist of the action" doctrine. (Under the economic loss doctrine, where the plaintiff's loss is solely economic, recovery is limited to an action in contract; the gist-of-the-action doctrine precludes recovery in tort where the tort claim is only collateral to, and is interwoven with, a claim sounding in contract.) As the court stated:
In general, the difference between contract claims and tort claims depends upon the origin of the duties alleged to have been breached by the defendant's conduct. "Tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions lie only for breaches of duties imposed by mutual consensus agreements between particular individuals." [eToll, Inc. v. Ellias/Savion Advertising, Inc., 811 A.2d 10, 14 (Pa. Super. 2002)] (quoting Bash v. Bell Tel. Co., 411 Pa. Super. 347, 601 A.2d 825, 829 (Pa. Super.1992)).
Id. at *4.
The defendants contended that all of the tort claims failed under the gist-of-the-action doctrine because the plaintiffs were hiding what was essentially a claim in contract behind tort allegations and because the NFL did not make any misstatement of fact and had no duty to disclose the allegedly concealed information. The court agreed with the defendants:
Here, the parties' obligations arise solely from plaintiff'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 plaintiffs' damages result from defendants' failure to provide what was promised by sales of the tickets.
Plaintiff's effort to convert the gravamen of the complaint into a tort action by referencing defendants' inability to know with certainty that occupancy permits would be obtained for all ticket sales falls short of the mark. At its base, plaintiffs simply complain that defendants were unable to live up to the contractual agreement.
Id. at *5.
The court also ruled that under the Pennsylvania economic loss doctrine, the causes of action in tort could not survive:
In Pennsylvania, the economic loss doctrine precludes recovery for economic losses in a negligence action where the plaintiff has suffered no physical injury or property damage. Aikens v. Baltimore & Ohio R.R. Co., 348 Pa.Super. 17, 501 A.2d 277, 279 (Pa. Super.1985) (no cause of action lies for negligence that causes only economic loss[.]
Id. at *5 n.1.
Finally, the court agreed with the defendants' contention that the entire case had to be dismissed for lack of subject-matter jurisdiction in that even if the causes of action in tort were viable, the damages alleged, whether in tort or contract, by each plaintiff could not meet the minimum $75,000 amount in controversy required by 28 U.S.C. § 1332(a). While the plaintiffs were seriously inconvenienced, they simply failed to allege an actionable wrong on the part of the defendants.