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HomeMy WebLinkAbout98-2820 CivilROBERT QUIGLEY and SUSAN QUIGLEY, husband and wife, Plaintiffs Vo JO-CLAYREE MILLER and ROLLA LEHMAN, Defendants IN TIlE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 98-2820 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT ROLLA LEHMAN BEFORE HOFFER, P.J., HESS and OLER, JJ. ORDER OF COURT ORDER OF COURT AND NOW, this i1~4 day of January, 2000, after careful consideration of the motion of defendant Rolla Lehman for summary judgment on plaintiffs' claims against him, and for the reasons stated in the accompanying opinion, defendant's motion for summary judgment is granted. John R. Fenstermacher, Esq. David A. Jones, II, Esq. 5115 East Trindle Road Mechanicsburg, PA 17055 Attorneys for Plaintiffs BY THE COURT, - ( JWesley O1 ~et~r.~ J. o C. Roy Weidner, Jr., Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Attorney for Defendant Jo-Clayree Miller James D. Goldsmith, Esq. Brent M. Woodburn, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorneys for Defendant Rolla Lehman ROBERT QUIGLEY and SUSAN QUIGLEY, husband and wife, Plaintiffs Vo JO-CLAYREE MILLER and ROLLA LEHMAN, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 98-2820 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANT ROLLA LEHMAN BEFORE HOFFER, P.J., HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, J., January 11, 2000. This civil case arises out of the sale of a home. Plaintiffs, purchasers of the home, have sued the seller of the home for fraud, negligent misrepresentation, violation of the Real Estate Seller Disclosure Act, and violation of the Unfair Trade Practices and Consumer Protection Law, and the seller's real estate agent for fraud, negligent misrepresentation, and violation of the Unfair Trade Practices and Consumer Protection Law. The suit is based upon Plaintiffs' alleged discovery after settlement of pet damage and a heating pump malfunction. ~ For disposition at this time is a motion for summary judgment filed by the defendant real estate agent. For the reasons stated in this opinion, the motion will be granted. ~ With respect to alleged violations of the Unfair Trade Practices and Consumer Protection Law by defendant realtor, plaintiffs' complaint avers that the realtor "represented that the home was free of the material defects of pet urine stains, that the heat pump was free of problems, and that the home was suitable for its intended use" (,see 73 P.S. §201-214][vii]) and engaged in "fraudulent and deceptive conduct" (see 73 P.S. §201-2[4][xxii]). Plaintiffs' complaint, paragraph 54. STATEMENT OF FACTS For present purposes,2 the record in this case consists of plaintiffs' con:p!ai~,t, defendants' answers with new matter and counterclaims,3 the motion ['or judgment filed by defendant realtor, plaintiffs' answer to the motion tbr summary judgment, a deposition of plaintiffs (with an exhibit), parts of a deposition of defendant realtor, and plaintiffs' answers to interrogatories propounded by defendant seller.4 The record must be examined in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 93-94, 674 A.2d 1038, 1041 (1996); see Moll v. Ambrose, 96-4053 Civil Term (Cumberland Co. December 3, 1999) (Bayley, J.). Viewed in this light, the record can be read to support an inference that the seller of the home purchased by plaintiffs was aware that her home contained damage from a cat and two dogs in the form of stains and odors, and that these conditions had been concealed by withdrawing the pets from showings of the property, professional cleaning of the carpeting, and masking of odors. The record can also be read to support an inference that the seller did not disclose malfunction(s) in connection with the heat pump.s 2 See Pa. R.C.P. 1035.1 (record for purposes of motion for summary judgment). 3 Replies have not yet been filed to defendants' new matter (and counterclaims), because preliminary objections have been filed by plaintiffs' to these pleadings. Although a motion for summary judgment is premature until "the relevant pleadings are closed," plaintiffs have not suggested that the relevant pleadings are not closed with respect to defendant realtor's motion for summary judgment, presumably on the theory that the new matter represented a conclusion of law as to which no response was required. See Pa. R.C.P. 1035.2 (time for filing motion for judgment on pleadings). 4 Attachments to briefs on a motion for summary judgment are not properly considered part of the record. Scolvel v. Donegal Mutual Ins. Co., 698 A.2d 602 (Pa. Super. 1997). 5 In making these observations, the court is in no way expressing an opinion that these inferences would be correct. 2 However, an examination of the record does not support the proposition that defendant realtor was aware, actually or constructively, of any such conditions, or made any misrepresentations as to either. The record, viewed in the light most favorable to thc~ plaintiffs, tends to show only that the realtor was knowledgeable about some aspects of the house,6 that he knew that the seller had three house pets--two dogs and a cat,7 that he so advised the purchasers,8 that in response to a question he said that he was not axvare of any damage from the pets,9 that on one occasion in the summer when the prospective purchasers visited the home with the realtor the air-conditioning was turned up high,~° that a valve in the heat pump system had been replaced in the past due to a malfunction,TM and that in response to a written question by the purchasers as to whether the seller could make available service records of the heat pump the realtor conveyed the seller's position that they "didn't need to be," because the pump was to be "[s]erviced next week.''~2 6 N.T. 140, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). 7 N.T. 19-20, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). 8 N.T. 19-20, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). 9 N.T. 19-20, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). l0 N.T. 147, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). ~ N.T. 102, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). 12 N.T. 54-55, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). 3 Plaintiffs do not claim that the seller did not have the heat pump serviced as indicated the following week,~3 nor that an it~sp,zction of the house performed on behalf of the sellers did not confirm that the ':-vstcln ~;as operating properly.~4 About six months after settlement, according to plaintiffs, the heat pump malfunctioned,~5 the aforesaid valve was again replaced, at a cost of between three and tbur hundred dollars,~6 and no further problems were experienced.17 The deposition testimony of one of the purchasers xvith respect to the realtor's conduct as to pet damage included the following: Q When did you first conclude that [the realtor] had covered up things? A Well, my conclusion is based on the fact that we never went to that house unless he escorted us there and had enough warning I guess you could say or enough motivation to make sure that the house was in excellent condition prior to our coming into the home. Q This is in addition to what you previously told us was your factual basis for including [the realtor in the litigation] which was that the air conditioning was turned up high on June 27, 1997? A Yes, that's right. Q So if I can take the liberty of paraphrasing, would it be fair to state then also a factual basis for you is that [the realtor] had some familiarity of the property and took you to a property that seemed to be clean and in good smelling condition? 1999 (testimony of plaintiff Susan 13 N.T. 55-57, Deposition of plaintiffs, April 27, Quigley). 14 N.T. 55, 57, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). ~5 N.T. 97, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). 1999 (testimony of plaintiff Susan 1999 (testimony of plaintiff Susan 16 N.T. 100, Deposition of plaintiffs, April 27, Quigley). ~? N.T. 100, Deposition of plaintiffs, April 27, Quigley). 4 A The times we visited the home, yes. Q And simply the fact that vou later determined that there were urine stains and pet damage would I:,: s~mc indication to you that he had to have had knowledge, am I paraphrasing your complaint correctly? A Yes. I--yes. Q. Is there any other factual basis? A I have no factual basis other than what I have just discussed. The deposition testimony of one of the purchasers with respect to the realtor's conduct concerning the heat pump included the following: Q Are you aware of any fact which for~ns the basis that Mr, Lehman knew of any condition of malfunction with respect to the heat pump? A No? Deposition testimony of the defendant realtor, to the extent that it has been made part of the record, does not support the proposition that he engaged in tortious or statutorily prohibited conduct in connection with the sale.~9 Finally, in an answer to interrogatories propounded by defendant seller, plaintiffs have stated that "Plaintiffs do not foresee using admissions of any party.''2° DISCUSSION Pennsylvania Rule of Civil Procedure 1035.2 provides as follows: After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law ~8 N.T. 54, Deposition of plaintiffs, April 27, 1999 (testimony of plaintiff Susan Quigley). ~9 See Deposition of defendant Rolla Lehman, April 27, 1999 (portions of deposition attached to Plaintiff's Response to Defendant Rolla Lehman's Motion for Summary Judgment). 20 Plaintiffs Robert and Susan Quigley's Answers to Defendant Jo-Clayree Miller's First Set of Written Interrogatories, paragraph 11. 5 (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. "[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial." Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1042 (1996). "The purpose of [the second provision in the Rule] is obviously to protect a party against whom an essential allegation cannot be supported with evidence from the burden of going to trial in order to secure a resolution of the matter." Moritz v. Gluck, 48 Cumberland L.J. 1, 3 (1998), citing Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997). Thus, on a motion for summary judgment, "a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor." Ertel v. Patriot News Co., 544 Pa. 93, 101-02, 674 A.2d 1038, 1042 (1996). Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 102, 674 A.2d at 1042. "Where the only facts in evidence in support of [a] theory of recovery would require speculation and conjecture to find in the plaintiff's favor, the evidence [will be considered] insufficient to support [a] verdict [in favor of the plaintiff]." Williams v. A- Treat Bottling Co., Inc., 380 Pa. Super. 195,205, 551 A.2d 297, 302 (1988). A plaintiff's burden with respect to fraud in the present context has been described by the Pennsylvania Superior Court as follows: To recover on a claim of fraud, a plaintiff must prove by clear and convincing evidence six elements: (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with 6 the intent of misleading another into relying on it; (5)justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Concealment of a material fact can amount to actionable fraud if the [actor] intentionally concealed a material fact to deceive the [victim] .... However, mere silence without a duty to speak will not constitute fraud. Se~vak v. Lockhart, 699 A.2d 755,759 (Pa. Super. Ct. 1997) (citations omitted). A plaintiff's burden with respect to negligent misrepresentation has been described by the i~ennsylvania Supreme Court as follows: The elements which must be proven for [negligent misrepresentation] to be shown are: (1) a misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under circumstances in which he ought to have known of its falsity; (3) the representor must intend the representation to induce another to act on it; and (4) injury must result to the party acting in justifiable reliance on the misrepresentation. Gibbs v. Ernst, 538 Pa. 193,210, 647 A.2d 882, 890 (1994). Under Pennsylvania's Unfair Trade Practices and Consumer Protection Law, the following are listed as unfair or deceptive acts or practices, inter alia: Representing that goods or services are of a particular standard, quality or grade, or that goods are of a particular style or model, if they are of another2~ Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding22 In the present case, plaintiffs have not placed the court in a position to hold that they have adduced evidence that would support a verdict in favor of plaintiffs and against defendant realtor on a claim of fraud, negligent misrepresentation or violation of the Unfair Trade Practices and Consumer Protection Law. Given the record upon which defendant's motion for summary judgment must be considered, the court is of the view 21 Act of December 17, 1968, P.L. 1224, §2(4)(vii), as amended, 73 P.S. §201-2(4)(vii) (1999 Supp.). 22 Act of December 17, 1968, P.L. 1224, §2(4)(xvii), as amended, 73 P.S. §201-2(4)(xxi). 7 that findings of willful or negligent misrepresentation, by omission or otherxvise, on the part of the realtor would require an exercise of conjecture and speculation on the part the trier of fact, as would a finding that the realtor had either misrepresented theft house was of a particular standard, quality or grade, or engaged in fraudulent or deceptive conduct creating a likelihood of confusion or of misunderstanding on the part of plaintiffs. Accordingly, the following order will be entered: ORDER OF COURT AND NOW, this 11th day of January, 2000, after careful consideration of the motion of defendant Rolla Lehman for summary judgment on plaintiffs' claims against him, and for the reasons stated in the accompanying opinion, defendant's motion for summary judgment is granted. BY THE COURT, John R. Fenstermacher, Esq. David A. Jones, II, Esq. 5115 East Trindle Road Mechanicsburg, PA 17055 Attorneys for Plaintiffs C. Roy Weidner, Jr., Esq. 301 Market Street P.O. Box 109 Lemoyne, PA 17043 Attorney for Defendant Jo-Clayree Miller James D. Goldsmith, Esq. Brent M. Woodburn, Esq. 3631 North Front Street Harrisburg, PA 17110 Attorneys for Defendant Rolla Lehman /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 8