HomeMy WebLinkAbout98-5716 civilMICHAEL D. ROMO, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
V. :
: NO. 98-5716 CIVIL
ROSEMARY STONER, DENNIS :
DWAYNE WERNER, STEPHEN :
McBRIDE, and ReMAX REALTY :
ASSOCIATES,
Defendants
IN RE: PRELIMINARY OBJECTIONS OF McBRIDE AND ReMAX
ORDER OF COURT
AND NOW, June 8, 1999, after careful consideration of the parties' briefs,
defendants' Preliminary Objections are denied,
By the Court,
Kenneth A. Wise, Esquire Craig A. Diehl, Esquire
126 Locust Street 3464 Trindle Road
P.O. Box 11489 Camp Hill, PA 17011
Harrisburg, PA 17108-1489 For Defendant Rosemary Stoner
For the Plaintiff
Douglas K. Marsico, Esquire
Caldwell & Kearns
3631 North Front Street
Harrisburg, PA 17110-1533
For Defendants Stephen McBride
and ReMax Realty Associates
MICHAEL D. ROMO, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
V,
: NO. 98-5716 CIVIL
ROSEMARY STONER, DENNIS :
DWAYNE WERNER, STEPHEN :
McBRIDE, and ReMAX REALTY
ASSOCIATES, :
Defendants :
IN RE: PRELIMINARY OBJECTIONS OF McBRIDE and ReMAX
OPINION
HOFFER, P.J.:
This dispute arose from a residential real estate sale. Plaintiff Michael D.
Romo, as the buyer, entered into an agreement of sale for a property located at
108 North Market Street with defendants Rosemary Stoner and Dennis Dwayne
Werner, as the sellers. Defendant Stephen McBride, affiliated with defendant
ReMax Realty Associates, acted as buyer's agent during the sale. Prior to
settlement, a building inspection revealed defects in the structure. These defects
had not been disclosed by the seller. Although plaintiff contracted for the
inspection, he claims that defendant McBride withheld the report from him until
after settlement occurred.
Plaintiff filed his complaint alleging that defendants violated both the
Pennsylvania Real Estate Seller Disclosure Act, 68 P.S. §1021 et seq., and the
Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-
98-5716 CIVIL
1 et seq., by failing to disclose the defects and the inspection report. Defendants
McBride and ReMax filed preliminary objections. Defendants' preliminary
objections assert that the agreement of sale contained only a mortgage
contingency clause, not a clause that would excuse plaintiff from completing the
sale if defects were found and therefore defendants' failure to disclose is not
actionable. The agreement of sale is not a part of the record before the Court.
Preliminary objections, in the form of a demurrer, may be sustained only if,
after admitting as true all well pleaded, relevant facts and any inferences fairly
deduced therefrom, it is clear that there is no theory of law that could provide relief
for the claimant. Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa.
613, 619, 702 A.2d 850, 853 (1997). The grant of a demurrer is proper if it is clear
and free from doubt that the moving party has failed to state a claim upon which
relief can be granted. Id.
After examining the record before the Court, this is not a case that is clear
and free from doubt. Therefore, defendants' Preliminary Objections are denied.
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