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Judge Nixes Super Bowl Seating Fiasco Suit

(CN) - Football fans who were denied entry to the 2011 Super Bowl because a fire marshal nixed a section of temporary seats cannot sue, a federal judge ruled.

As hosts of the 2011 Super Bowl XLV, the NFL and Dallas Cowboys decided to temporarily expand the seating capacity of Cowboys Stadium in Arlington, Texas, from 80,000 to more than 100,000.

Arlington allegedly permitted the league to begin the three-week construction project prior to submitting complete construction documents, on the condition that the stadium obtain occupancy permits prior to game day - Feb. 6, 2011.

In early January, the NFL issued four $800 Super Bowl tickets to Pittsburgh Steelers fans Richard and Cheryl Pollock and Paul and Cynthia Kutcher.

Although the league allegedly knew that many construction defects needed to be addressed before the new seats would be deemed safe, it had neither obtained the necessary occupancy permits by game day nor had it finished building at least 2,400 seats.

As a result, stadium workers initially denied the Pollocks and Kutchers entry into Cowboys Stadium.

After spending hours "traversing about" to gain admission, the couples said they were ultimately brought to a section with no seats, "an obstructed view," and monitors for viewing the game.

They sued the NFL and the Cowboys for failing to provide the seats designated on their tickets, alleging breach of contract. The complaint, filed in the Western District of Pennsylvania, referenced such losses as the costs of the tickets, airfare, car rental, lodging, food and beverages, and vacation time - totaling nearly $7,000 - plus punitive and exemplary damages, treble damages, attorneys' fees and costs, pre- and post-judgment interest, and the "loss of a once-in-a-lifetime opportunity."

Citing Pennsylvania doctrine on "economic loss" or "gist of the action," the defendants moved to dismiss the Pollocks and Kutchers' tort claims and the plaintiffs amended their complaint. They abandoned their breach of contract claim, but reasserted four tort claims: fraudulent and negligent/gross negligent misrepresentation by concealment, Pennsylvania's Unfair Trade Practices and Consumer Protection Law (UTPCPL), and fraudulent inducement.

U.S. District Judge David Cercone dismissed the action on March 15, holding that the fans' claims are barred by the gist of the action doctrine, which distinguishes breach of contract and tort claims.

"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," Cercone wrote. "At its base, plaintiffs simply complain that defendants were unable to live up to the contractual agreement. There is not one alleged fact to support the proposition that defendants had the intent to sell worthless tickets or did not have the intent at the time of contracting to perform as reflected in the agreement. To the contrary, plaintiffs merely point to defendants' asserted inability to know with certainty that they would be able to guarantee admission and a seat. And they highlight what at best can be viewed as negligent efforts by defendants and their contractors to commit sufficient resources to follow through with the contractual undertaking.

"Making boiler plate allegations that a defendant's failure to live up to its contractual obligations proves that the statements concerning its ability to perform were false, fraudulent or misleading reflects nothing more than the epitome of a self-serving attempt to bootstrap a contract claim into one for fraud," he added.

In a separate February 2011 class action, 1,200 ticketholders claimed they were either turned away from the Super Bowl or given subpar seats. Named plaintiff Mike Dolabi, who allegedly paid $100,000 for "Founders of Cowboys Stadium" status and the "best sightlines in the stadium," sought class damages of more than $5 million for fraud, breach of contract, deceit, deceptive trade practices and concealment.

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