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HomeMy WebLinkAbout98-0410 civilLEE KIMMEL, Plaintiff VS. JAMES R. DORN and BERNICE M. DORN, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- EQUITY 98-0410 CIVIL IN RE: EQUITY TRIAL BEFORE HESS, J,. DECREE NISI AND NOW, this day of March, 2001, following trial, the court sitting as chancellor in equity, we find in favor of the defendants and against the plaintiff. This decree shall become final unless exceptions hereto are filed within ten (10) days hereof. BY THE COURT, David Greene, Esquire For the Plaintiff K~A. Hess, J. Mark A. Denlinger, Esquire For the Defendants :rlm LEE KIMMEL, Plaintiff VS. JAMES R. DORN and BERNICE M. DORN, his wife, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION- EQUITY 98-0410 CIVIL IN RE' EQUITY TRIAL BEFORE HESS, J. OPINION AND DECREE NISI This action in equity seeks the rescission of an agreement for the sale and purchase of real estate or, in the alternative, damages. The plaintiff claims that the defendants committed fraud against him with regard to the operable condition of the on-site septic system servicing the property. The plaintiff claims that the septic system was not and is not operable and that they knew or should have known that this was so when they entered into an agreement for the sale of their property. On September 18, 1996, Lee A. Kimmel and James R. Dom and Bernice M. Dorn entered into an agreement of sale for the sale and purchase of the property located at 4207 Carlisle Road, Gardners, PA 17324. The agreement of sale required the Doms to have the septic system inspected by a reputable septic service company. The D0ms approached Peck's Septic Service, owned and operated by Kenneth L. Peck, concerning certification of the system. Mr. Peck expressed some reservations concerning the system and suggested that the Dorns get a second opinion. The Doms then contacted Jeffrey A. Danner, sewage enforcement officer of Dickinson Township, who made some suggestions concerning improvements in the system. One suggestion was the installation of a new tank. Mr. and Mrs. Dom then hired Wesley A. Tate of 98-0410 CIVIL Lloyd's Septic System to install a new tank in their septic system pursuant to a permit issued by the sewage enforcement officer. Ultimately, it became apparent that a new tank was not necessary but it was installed, in any event, and connected to the old tank thus upgrading the system. Mr. Tate found the septic system to be in satisfactory working condition and issued a certification to that effect. At that point, we are satisfied, the Doms believed that their septic system was in good working order and that they had complied with their obligations under the agreement of sale. The Doms had been careful to regularly maintain the septic system over the years. They used Peck's Septic Service in connection with this regular maintenance. Their only prior difficulty with the septic system had occurred in 1993 when they were informed that there was ponding in the septic field. At that time, Mr. Peck explained that Mrs. Dom's dog grooming business was using too much water and that the drain field was being inundated. Mrs. Dom ceased her operation of the dog grooming business at the residence and, thereafter, there were no further problems with the drain field. Mr. Kimmel moved into the residence around Thanksgiving of 1996. Shortly after Christmas, there was a back flow into the home of raw sewage. This back flow resulted from a blockage that occurred between the house and the tank. There was no evidence adduced at the hearing that this blockage had anything to do with a defect in the septic system. In fact, a more likely explanation is that the blockage resulted from material which was carelessly allowed to enter the waste pipes from inside the house. There was no testimony at the trial of this case of any further difficulty with the septic system from and after Christmas of 1996. The elements of intentional misrepresentation are: 98-0410 CIVIL a. A representation; b. which is material to the transaction at hand; c. made falsely with knowledge of its falsity or recklessness as to whether it is true or false; d. with the intent of misleading another into relying on it; e. justifiable reliance on the misrepresentation; and f. the resulting injury was proximately caused by the reliance. See, Borts v. Noon, 556 Pa. 489, 729 A.2d 555 at 560 (1999). The tort of intentional nondisclosure has the same elements as intentional misrepresentation except that in the case of intentional nondisclosure, "the party intentionally concealed a material fact rather than making an affirmative misrepresentation." Id. ,, Here there is simply no evidence supporting a conclusion that the defendants intentionally misrepresented any facts to the buyer nor intended to deceive the buyer by failing to give him information concerning the operation of the septic system. To the contrary, when alerted to a possible problem by Mr. Peck, the defendants contacted the sewage enforcement officer for advice concerning the steps necessary to remedy any deficiency. A second tank was installed and the system was certified as operable by a reputable septic service. In the meantime, the defendants had no reason to know or even suspect that their septic system was not in good working order. In addition, we fail to find any connection between any alleged defect in the septic system and the sewage backup which occurred at Christmas of 1996. All of the evidence suggests, in fact, that the opposite is true. The plaintiff admits that the obstruction which caused 98-O410 CIVIL the backup did not occur in the septic system but rather in the pipe leading from the house to it. We have, therefore, no hesitation in entering the following decree. DECREE NISI AND NOW, this day of March, 2001, following trial, the court sitting as chancellor in equity, we find in favor of the defendants and against the plaintiff. This decree shall become final unless exceptions hereto are filed within ten (10) days hereof. BY THE COURT, David Greene, Esquire For the Plaintiff · Hess, J. Mark A. Denlinger, Esquire For the Defendants :rhn