Products Liability Law Daily Wrap Up, DESIGN AND MANUFACTURING DEFECTS—BUILDING AND CONSTRUCTION—E.D. Pa.: Window suppliers denied dismissal of property developer’s claims in apartment glass shatter case, (Aug 31, 2026)

By Pankhuri Bhatnagar, B.A. LL.B.

The developer’s allegations of the window glass being contaminated allowed its manufacturing defect claim to survive, while the implied-warranty claims failed due to a supplier’s disclaimer.

In an action brought by a property developer against a window-system supplier, a glass manufacturer, and their corporate parent, a federal district court in Pennsylvania partly granted and partly denied the companies’ motion to dismiss. The court found that the parent lacked sufficient Pennsylvania contacts and was not shown to be an alter ego of its subsidiaries, that claim-splitting and abstention did not warrant dismissal of this parallel federal action, that the express contract barred unjust enrichment against the supplier but indirect conferral of a benefit could support the claim against the manufacturer, and that the consumer protection claim failed for lack of an adequately alleged duty to disclose but could be amended (PMC Property Group, Inc. v. Viracon, LLC, No. 26-3345 (E.D. Pa. Aug. 20, 2026)).

Background. PMC Property Group, Inc. was a property developer who converted commercial buildings into apartment complexes. It contracted with Wausau Window and Wall Systems (supplier) to supply the window systems for its Philadelphia properties. The glass panels incorporated into Wausau’s systems were manufactured by Viracon, LLC (manufacturer). Apogee Enterprises, Inc. was the corporate parent of both Wausau and Viracon. After the buildings opened, portions of the window glass broke, with windows in dozens of apartments allegedly shattering and glass falling onto sidewalks, balconies, and other areas. The developer alleged that nickel sulfide, a byproduct of Viracon’s manufacturing process, contaminated the glass and caused the breakage. It sued Wausau, Viracon, and Apogee for strict products liability, breach of implied warranties of merchantability and fitness, unjust enrichment, and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL), and sought declarations that Wausau and Viracon were Apogee’s alter egos. The companies moved to dismiss.

Personal jurisdiction. Apogee argued that the court lacked personal jurisdiction. Specific jurisdiction requires purposeful availment, a connection between the forum contacts and the alleged injury, and an exercise of jurisdiction consistent with fair play and substantial justice. Hanson v. Denckla, 357 U.S. 235, 253 (1958). Purposeful availment requires minimum contacts and deliberate targeting of the forum, World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980), but the developer alleged no facts showing Apogee deliberately targeted Pennsylvania. The parent company did not solicit its business, advertise toward Pennsylvania, manufacture, distribute or sell products or services there, or contract to provide services to Pennsylvania entities. Accordingly, the jurisdictional requirement was not satisfied. The developer invoked an alter-ego theory, under which a parent may be subject to jurisdiction when it controls a subsidiary over which jurisdiction exists. Shuker v. Smith & Nephew, PLC, 885 F.3d 760, 781 (3d Cir. 2018). Such control must extend to the subsidiary’s day-to-day operations. Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 300–01 (3d Cir. 2008). PMC Property cited Apogee’s benefit from its business with Wausau, representation of Wausau in litigation, receipt of warranty notices and direction of language in Wausau’s quotes, but did not apply the relevant factors or plausibly allege day-to-day control. The court therefore dismissed the claims against Apogee for lack of personal jurisdiction.

Claim splitting and abstention. Wausau and Viracon invoked Walton v. Eaton Corp., 563 F.2d 66, 70 (3d Cir. 1977), which bars two actions involving the same subject matter in one court against the same party. The court denied dismissal on that ground because the two actions filed by the developer were pending in different courts of different sovereigns. The court also rejected abstention under Colorado River Water Conservation District v. United States, 424 U.S. 800, 817–20 (1976), which requires parallel proceedings and extraordinary circumstances, because the state action named only Wausau while the federal action also named Viracon and Apogee. No extraordinary circumstances existed: the state court had not assumed in rem jurisdiction, the federal forum was not inconvenient, no congressional policy favored abstention, and the state case’s progress to summary judgment did not independently justify abstention.

Manufacturing defect. Wausau and Viracon argued that the manufacturing defect claim was barred by the economic-loss doctrine, which bars recovery for damage to the product itself but permits recovery where the malfunction also damages other property. REM Coal Co., Inc. v. Clark Equipment Co., 563 A.2d 128, 129, 133 (Pa. Super. Ct. 1989). Since the developer alleged shattered glass damaged balconies, tenant patios, interiors, and building areas, the doctrine did not apply. The two-year limitations period also did not support dismissal because the companies did not establish when the claim accrued. Pa. Stat. and Cons. Stat. § 5524. Finally, the nickel-sulfide contamination plausibly suggested the “product’s departure from its intended design” because properly manufactured high-rise glass allegedly should not contain a substance capable of causing breakage during normal use. The companies did not cite any Pennsylvania authority holding that a latent defect cannot constitute a manufacturing defect, thus allowing the claim to proceed.

Implied warranties. Merchantability requires goods to be fit for their ordinary purposes, while fitness concerns a specific use contemplated and communicated by the buyer. Borden, Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa. Super. Ct. 1997). A disclaimer must be written and conspicuous, with courts considering its placement, size, and whether it is highlighted. The “Wausau Standard Limited Warranty” expressly disclaimed implied warranties in capital letters on its second page. Unlike the tiny print in Borden, the provision here used normal-sized print and stood out from the surrounding text. Allen-Myland, Inc. v. Garmin International, Inc., 140 A.3d 677, 689 (Pa. Super. Ct. 2016). The implied-warranty claims were therefore dismissed with prejudice.

Unjust enrichment. Unjust enrichment requires a benefit conferred on the claimant, appreciation of that benefit, and circumstances making retention without payment inequitable. Mitchell v. Moore, 729 A.2d 1200, 1203 (Pa. Super. Ct. 1999). Because the doctrine applies only when a transaction lacks a written or express contract, the developer could not pursue unjust enrichment against Wausau, with whom it had contracted. Northeast Fence & Iron Works, Inc. v. Murphy Quigley Co., Inc., 933 A.2d 664, 669 (Pa. Super. Ct. 2007). Viracon, however, could not obtain dismissal merely because the developer did not directly confer the benefit: Pennsylvania permits indirect conferral where a third party benefits from a contract between other parties. The claim was thus dismissed against Wausau but proceeded against Viracon.

UTPCPL and amendment. The developer alleged that Wausau and Viracon violated the UTPCPL by failing to disclose that their glass could contain nickel sulfide. The developer cited no authority establishing a duty to disclose and relied only on the companies’ alleged “superior knowledge.” The court dismissed the claim but allowed amendment because it could not conclude that no facts or law could support a duty to disclose. Amendment was futile as to Apogee as no pleaded facts could establish corporate control. Amendment was also futile as to the implied-warranty claims against Wausau and Viracon and the unjust enrichment claim against Wausau. However, the developer could amend its UTPCPL claim to allege a legal basis for a disclosure duty.

The case is No. 26-3345.

Judge: Pappert, G.

Attorneys: Daniel E. Rhynhart (Blank Rome LLP) for PMC Property Group, Inc., 200 North 16th Street Associates, LP f/k/a 2301 JFK Owner LP, 30 North 23rd Street Associates, LP f/k/a 2301 JFK Owner LP and 30 North 23rd Street Associates, LLC f/k/a 23rd Street Lot B Owner, LLC. Alberto M. Longo (Fox Rothschild LLP) for Apogee Enterprises, Inc., Apogee Wausau Group, Inc. d/b/a Wausau Window and Wall Systems and Viracon, LLC f/k/a Viracon, Inc.

Companies: PMC Property Group, Inc.; 200 North 16th Street Associates, LP f/k/a 2301 JFK Owner LP; 30 North 23rd Street Associates, LP f/k/a 2301 JFK Owner LP; 30 North 23rd Street Associates, LLC f/k/a 23rd Street Lot B Owner, LLC; Apogee Enterprises, Inc., Apogee Wausau Group, Inc. d/b/a Wausau Window and Wall Systems; Viracon, LLC f/k/a Viracon, Inc.

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