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HomeMy WebLinkAbout2001-4866 Civil JOHN DAINES and BECKY DAINES Plaintiffs v. IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION-LAW DONALD E. MENTZER and SHIRLEY M. MENTZER, and RE/MAX REALTY ASSOCIATES: Defendants : NO. 01-4866 CIVIL TERM IN RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. ORDER OF COURT AND NOW, this 17th day of October, 2005, upon consideration of Defendants motions for summary judgment, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1) The Motion for Summary Judgment filed on behalf of Defendants Mentzer is denied; and 2) The Motion for Summary Judgment filed on behalf of Defendant RE/MAX Realty Associates is granted. BY THE COURT, 1. Wesley Oler, Jr., 1. Gregory B. Abeln, Esq. 37 E. Pomfret Street Carlisle, P A 17013 Attorney for Plaintiffs John and Becky Daines James Goldsmith, Esq. 3631 North Front Street Harrisburg, P A 17110 Attorney for Defendant RE/MAX William A. Addams, Esq. 27 West High Street Carlisle, P A 17013 Attorney for Defendants Donald E. and Shirley M. Mentzer 2 JOHN DAINES and BECKY DAINES Plaintiffs IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. CIVIL ACTION-LAW DONALD E. MENTZER and SHIRLEY M. MENTZER, and RE/MAX REALTY ASSOCIATES: Defendants NO. 01-4866 CIVIL TERM IN RE: DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT BEFORE HESS and OLER, JJ. OPINION and ORDER OF COURT OLER, 1., October 17,2005. This case arises out of a sale of residential real estate to Plaintiffs John and Becky Daines. Defendants Donald E. and Shirley M. Mentzer and RE/MAX Realty Associates allegedly misrepresented a water damage condition resulting in mold on the premises. Defendants Mentzer and RE/MAX have moved for summary judgment. 1 Three depositions have been filed of record: the deposition of John Daines, that of Becky Daines, and that of Stephen Bickford (alleged real estate agent for Plaintiffs). Plaintiffs also filed five expert reports of record: the report of Steven M. Yingst, P.E. (who tested the house for water entry),2 that of Robert A. Pfromm, C.I.H. (project manager for Advance Applied Science, Inc., which performed environmental testing on the house),3 that of Jonathan Fellows, D.O. (who performed a neurological exam on/consulted with Becky Daines),4 that of Valentine M. Osborne, D.O. (primary care practitioner for John 1 Motion for Summary Judgment of Defendants Mentzer, filed June 30, 2005; Motion for Summary Judgment of Defendant RE/MAX Realty Associates, filed July 5,2005. 2 See Steven M. Yingst, P.E., August 3, 2001 Report. 3 See Robert A. Pfromm, C.I.H., March 5,2001 Report and September 24,2001 Report. 4 See Jonathan Fellows, D.O., October 17,2001 Report. and Becky Daines),5 and that of Eckardt Johanning, M.D., M.Sc. (who examined Becky Daines).6 For the reasons stated in this opinion, the Motion for Summary Judgment filed on behalf of Defendants Mentzer will be denied and the Motion for Summary Judgment filed on behalf of Defendant RE/MAX Realty Associates will be granted. STATEMENT OF FACTS Plaintiffs are John and Becky Daines, who purchased a house at 178 North Middlesex Road, Carlisle, Cumberland County, Pennsylvania. 7 Stephen Bickford allegedly acted as the real estate agent for Plaintiffs. 8 Defendants are Donald E. and Shirley M. Mentzer,9 who sold the property in question,lO and RE/MAX Realty Associates ("RE/MAX"),l1 which acted as the Mentzers' listing broker. Steve Hawbecker, employed by RE/MAX, acted as the real estate agent for Defendants Donald E. and Shirley M. Mentzer.12 John Daines made an offer on the house on November 7, 2000, at which time he received a Sellers Property Disclosure Statement. 13 The disclosure statement contained information on the presence of water on the basement floor to the effect that "when water table rises that creek over flows sometimes you get very little on floor not all the floor 5 See Valentine M. Osborne, D.O., September 17,2001 Report. 6 See Eckardt Johanning, M.D., M.Sc., October 23,2001 Report. 7 Plaintiffs' Complaint, ~ 21, filed August 17, 2001 (hereinafter PI. CompI. ~; Defendant RE/MAX's Realty Associates' Answer with New Matter and Cross-Claim, ~ 21, filed September 20, 2001 (hereinafter Def. RE/MAX's Answer and New Matter ~; Defendants Mentzers' Answer, ~ 21, filed September 7,2001 (hereinafter Def. Mentzers' Answer ~. 8 PI. CompI. ~ 10; Def. Mentzers' Answer ~ 10. 9 PI. CompI. ~~ 3-4; Def. Mentzers' Answer ~~ 3-4; Def. REIMAX's Answer and New Matter ~~ 3-4. 10 Plaintiffs allege, and Defendants Mentzer admit, that Donald E. Mentzer was the "General Contractor in charge of the construction of the house." PI. CompI. ~ 8; Def. Mentzers' Answer ~ 8. 11 PI. CompI. ~ 5; Def. Mentzers' Answer ~ 5; Def. RE/MAX's Answer and New Matter ~ 5. 12 PI. CompI. ~ 25; Def. Mentzers' Answer ~ 25; Def. RE/MAX's Answer and New Matter ~ 25. 13 PI. CompI. ~~ 7-11, 13-17; Def. Mentzers' Answer ~ 7-10, 13-17; Def. RE/MAX's Answer and New Matter ~~ 12-17; see also Defendant Mentzers' Motion for Summary Judgment, filed June 30, 2005. 2 will be covered,,14 and that a sump pump was present.15 Plaintiffs and Defendants executed an agreement of sale on November 15, 2000.16 Settlement occurred on December 28, 2000.17 Plaintiffs initiated this lawsuit on August 17, 2001, asserting claims for negligent misrepresentation, fraud, breach of contract, violation of the Real Estate Seller Disclosure Act (68 Pa. C.S. 97301), negligence, and breach of an implied warranty of habitability against the Mentzers, and misrepresentation and violation of the Real Estate Seller Disclosure Act (68 Pa. C.S. 97301) against RE/MAX. Plaintiffs alleged the following through their complaint, deposition testimony, and expert reports: 1. Mr. Daines moved into the house on November 20, 2000,18 and on December 9, 2000, Mrs. Daines and her daughter moved into the house.19 Prior to the Daines' arrival, the house had been vacant for 12- 18 months?O 2. Shortly after moving in, on January 3, 2001, Mrs. Daines suffered from an allergic reaction and developed hives.21 Mrs. Daines experienced two 14 PI. CompI. ~ 16; Def. Mentzers' Answer ~ 16; Def. RE/MAX's Answer and New Matter ~ 16. 15Id. 16 PI. CompI. ~ 21; Def. Mentzers' Answer ~ 21; Def. RE/MAX's Answer and New Matter ~ 21. At or around this time, Mr. Daines elected to execute a radon and wood infestation inspection and declined a home inspection and environmental audit of the property. See Deposition of Plaintiff John L. Daines, at 29-31, October 28,2002 (hereinafter Dep. of John Daines, at~; Deposition of Stephen Bickford, at 21- 25, April 4, 2003 (hereinafter Dep. of Stephen Bickford, at~; Def. Mentzers' Answer ~~ 146-147; Def. RE/MAX's Answer and New Matter ~~ 146-148; Plaintiffs' Reply to Defendant Mentzers' Claim of a New Matter, ~ 146-147, filed October 10, 2001; Plaintiffs' Reply to Defendant RE/MAX's Claim of a New Matter, ~ 147, filed October 10,2001. 17 PI. CompI. ~ 28; Def. Mentzers' Answer ~ 28; Def. RE/MAX's Answer and New Matter ~ 28. 18 PI. CompI. ~ 26; Dep. of John Daines, at 32. 19 PI. CompI. ~ 27; Def. Mentzers' Answer ~ 27; see Dep. of John Daines, at 32-33; Deposition of Plaintiff Rebecca L. Daines, at 7-8, October 28,2002 (hereinafter Dep. of Becky Daines, at~. 20 PI. CompI. ~ 9; Def. Mentzers' Answer ~ 9; Dep. of John Daines, at 25,42. 21 PI. CompI. ~ 29; Dep. of John Daines, at 19, 34; Dep. of Becky Daines, at 9-10. 3 subsequent allergic reactions on January 20 and January 21 of 2001.22 On January 27,2001, Mrs. Daines moved out of the house?3 3. Following Mrs. Daines' allergic reaction, Plaintiffs hired Advance Applied Sciences, Inc. ("Advance"), an environmental testing company, to evaluate the house?4 Robert A. Pfromm, C.I.H., project manager from Advance issued a report stating that several contaminants were found in the house including Cladosporium, Aspergillus, Penicillium, Dust Mites, and Stachybotrys?5 The report also stated that "there was sufficient water damage throughout the basement as evidenced by the bubbled waterproofing paint, the rotted bottom wooden step, and the rusted steel fittings and or screws.,,26 Finally, the report noted that a "chlorine disinfectant was sprayed throughout the basement to cover the mold and mildew smell. ,,27 4. On March 14, 2001, Plaintiffs hired Indoor Environmental Solutions ("Indoor") to clean the house?8 Indoor found "water damage stains" under the carpet in the first floor rooms.29 After Indoors cleaned the property Plaintiffs moved back into the house.3o Shortly after moving in, Mrs. Daines again developed an allergic reaction and hives.31 On April 15, 2001, Mr. Daines also developed an allergic reaction.32 22 PI. CompI. ~~ 32,33; Dep. of Becky Daines, at 10. 23 PI. CompI. ~ 35; Dep. ofJohn Daines, at 25; Dep. of Becky Daines, at 13-14. 24 PI. CompI. ~ 36; see Dep. of John Daines, at 25; Dep. of Becky Daines, at 13. 25 PI. CompI. ~~ 36,42; see Robert A. Pfromm, C.I.H., March 5,2001 Report. 26 PI. CompI. ~ 45; see Dep. of John Daines, at 26-28; Robert A. Pfromm, C.I.H., March 5,2001 Report. 27 PI. CompI. ~ 46; see Dep. of John Daines, at 36; Robert A. Pfromm, C.I.H., March 5, 2001 Report. 28 PI. CompI. ~ 47. 29 PI. CompI. ~ 48; Dep. of John Daines, at 35-36. 30 PI. CompI. ~ 50; Dep. of John Daines, at 38. 31 PI. CompI. ~ 54; see Dep. of Becky Daines, at 18. 32 PI. CompI. ~ 60; Valentine M. Osborne, D.O., September 17,2001 Report. 4 5. Becky Daines contends that her allergic reaction was the result of "mold sensitization with possible toxic polyneuropathy and toxic encephalopathy. ,,33 Mrs. Daines was examined by her primary care physician, Valentine M. Osborne, D.O., neurologist Jonathan Fellows, D.O., and Eckardt Johanning, M.D., M.Sc., of the Occupational and Environmental Life Science-Fungal Research Group, Inc. 6. Plaintiffs maintain that, in addition to hiring Indoor, on July 19, 2001, they hired Steve Yingst, a professional engineer, to test the walls of the house for moisture problems. 34 Mr. Yingst concluded in his inspection report that significant water entry infiltrated the foundation walls and exterior walls of the house.35 7. Post-settlement, Plaintiffs contacted the Mentzers and RE/MAX regarding the water damage.36 On March 15, 2001, Plaintiffs had a meeting with the Mentzers. According to Mr. Daines, Mr. Mentzer acknowledged that he knew about some of the water damage which he did not disclose due to his belief that the leak had been repaired.37 Mr. Daines also recalled overhearing a conversation, post-settlement, between Stephen Bickford and Steve Hawbecker, the RE/MAX agent,38 in which Hawbecker stated that it was the usual practice in California to 33 See Dep. of Becky Daines, at 9-10, 13,20-21,23. Becky Daines statement of Dr. Eckardt Johanning, M.D., diagnosis. Id. at 23. See Eckardt Johanning, M.D., M.Sc., October 23,2001 Report; see generally Valentine M. Osborne, D.O., September 17,2001 Report. 34 PI. CompI. ~~ 74, 76; Steven M. Yingst, P.E., August 3,2001 Report; Dep. of John Daines, at 41. 35 Steven M. Yingst, P.E., August 3, 2001 Report; Dep. ofJohn Daines, at 41. 36 PI. CompI. ~ 49; Def. Mentzers' Answer ~ 49; see Dep. of Stephen Bickford, at 39. 37 PI. CompI. ~~ 52-53; Dep. of John Daines, at 19-25. See also Def. Mentzers' Answer ~ 52. "There was no 'water damage' or 'leak.' The 'stains' occurred as the result of rain on the subfloor before the roof was completed during construction of the house in 1984. Also, the chimney dripped onto the wood stove during a heavy rain. This was promptly sealed by Mr. Mentzer also in 1984." Id. at 53. 38 Dep. of John Daines, at 60-63; see also Dep. of Stephen Bickford, at 46-48. 5 test for mold if a house had been unoccupied for a substantial period of . 39 tIme. Also relevant is deposition testimony relating to the conduct of RE/MAX agent Hawbecker. First, when John Daines was asked whether Mr. Hawbecker made any representations to Plaintiffs, Mr. Daines responded "Not prior, no.,,40 Similarly, when asked, "Did Mr. Hawbecker make any statements that he knew there was mold in the property?" John Daines answered "No, he did not.,,41 Second, Becky Daines stated that the only time she met with a RE/MAX agent was during closing and affirmed that "[she] didn't buy this home or choose to buy this home to the extent that [she] participated in the decision on the basis of any representations, either in writing or oral, that was made by Mr. Hawbecker."42 Finally, Plaintiffs' purported real estate agent Stephen Bickford could not recall Mr. Hawbecker as ever stating that he should have known about the possibility of mold contamination. According to Stephen Bickford's recollection of his conversation with Steve Hawbecker, Hawbecker was referring to a process in California where a bag is placed over a house to eliminate "bugs in general. ,,43 Bickford stated that Hawbecker was not referring to mold in this conversation.44 Following the filing of the complaint, answers, replies, and depositions, all Defendants moved for summary judgment and Plaintiffs responded to the motions. Defendants Mentzer have moved for summary judgment as to the allegations of negligent misrepresentation, fraud, breach of contract, violation of the Real Estate Seller Disclosure Act, negligence, and breach of an implied warranty of habitability. The Mentzers argue that Plaintiffs have not established that: 1) "any of the 'alleged water 39 Id. 40 Dep. of John Daines, at 48. 41 Dep. of John Daines, at 61. 42 Dep. of Becky Daines, at 28-29. 43 Dep. of Stephen Bickford, at 46-47. 44 Dep. of Stephen Bickford, at 47-48. 6 damage problems' caused the presence of mold in the home,,;45 2) the "defendants knew of the alleged 'water damage problems",;46 or 3) the "mold was the cause of the plaintiffs' allergic reactions or other alleged medical symptoms.,,47 The Mentzers' brief focuses on the alleged fraudulent misrepresentation, stating that this claim is the "fundamental basis for all of the plaintiffs' claims. ,,48 Defendant RE/MAX has moved for summary judgment as to the claims of misrepresentation and violation of the Real Estate Seller Disclosure Act. RE/MAX argues that Plaintiffs have not established that: 1) "any of the 'alleged water damage problems' caused the presence of mold in the home,,;49 2) the "Defendant Re/Max knew of the alleged 'water damage problems",;50 or 3) the "mold was the cause of the Plaintiffs' claimed allergic reactions or other alleged medical symptoms and conditions."51 Finally, RE/MAX contends that it "was not a party to the sale and cannot grant a recission [sic] as requested by Plaintiffs. ,,52 DISCUSSION Statement of Law Motion for Summary Judgment. Pennsylvania Rule of Civil Procedure 1035.2 provides: After the relevant pleadings are closed, but within such time as not to umeasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law 45 Motion for Summary Judgment of Defendants Mentzer, ~ 9, filed June 30, 2005 (hereinafter Def. Mentzers' Motion for Summary Judgment). 46 Def. Mentzers' Motion for Summary Judgment, ~ 10. 47 Def. Mentzers' Motion for Summary Judgment, ~ 11. 48 Def. Mentzers' Brief in Support of their Motion for Summary Judgment, 3. 49 Defendant RE/MAX's Motion for Summary Judgment, ~ 9, filed July 5, 2005 (hereinafter Def. RE/MAX's Motion for Summary Judgment). 50 Def. RE/MAX's Motion for Summary Judgment, ~ 10. 51 Def. RE/MAX's Motion for Summary Judgment, ~ 11. 52 Def. RE/MAX's Motion for Summary Judgment, ~ 12. 7 (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. 53 In evaluating a motion for summary judgment the court must look at the record in the light most favorable to the non-moving party. Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 430, 671 A.2d 1151, 1153 (1996). Summary judgment "may be granted only in cases where the right is clear and free of doubt." Musser v. Vilsmeier Auction Co., Inc., 522 Pa. 367, 370, 562 A.2d 279, 280 (1989) (citing Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198,412 A.2d 466 (1979)). Misrepresentation. Misrepresentation can be either negligent or intentional. Negligent misrepresentation is: (1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and; (4) which results in injury to a party acting in justifiable reliance on the misrepresentation. 54 Intentional misrepresentation, or fraud, is: (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 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. 55 53 Pa. R.c.P. 1035.2. 54 Bortz v. Noon, 556 Pa. 489, 500-501, 729 A.2d 555, 561 (1999) (citing Gibbs v. Ernst, 538 Pa. 193, 210,647 A.2d 882,890 (1994)). 55 Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999) (citing Gibbs v. Ernst, 538 Pa. 193, 207- 208, 647 A.2d 882, 889 (1994), Restatement (Second) of Torts ~ 525 (1977)). Intentional 8 Regarding the third element of intentional misrepresentation, recklessness "may be described as the deliberate closing of one's eyes to facts that one had a duty to see or stating as fact, things of which one was ignorant." Office of Disciplinary Counsel v. Anonymous Attorney A, 552 Pa. 223, 233, 714 A.2d 402, 407 (1998). Real Estate Seller Disclosure Act. According to 68 Pa. C.S. 97303, regarding disclosure of material defects: Any seller who intends to transfer any interest in real property shall disclose to the buyer any material defects with the property known to the seller by completing all applicable items in a property disclosure statement which satisfies the requirements of section 7304 (relating to disclosure form). A signed and dated copy of the property disclosure statement shall be delivered to the buyer in accordance with section 7305 (relating to delivery of disclosure form) prior to the signing of an agreement of transfer by the seller and buyer with respect to the property. Under 68 Pa. c.s. 97308, regarding sellers' affirmative duty: The seller is not obligated by this chapter to make any specific investigation or inquiry in an effort to complete the property disclosure statement. In completing the property disclosure statement, the seller shall not make any representations that the seller or the agent for the seller knows or has reason to know are false, deceptive or misleading and shall not fail to disclose a known material defect. Also relevant under the Real Estate Seller Disclosure Act are sections 7314 and 7310. Under 68 Pa. c.s. 97314: A buyer shall not have a cause of action under this chapter against the seller or the agent for either or both of the seller or the buyer for: (1) material defects to the property disclosed to the buyer prior to the signing of an agreement of transfer by the seller and buyer; misrepresentation is analogous to fraud. See Blumenstock v. Gibson, 2002 PA Super. 339, ~ 10-11, 811 A.2d 1029, 1034 (2002). 9 (2) material defects that develop after the signing of the agreement of transfer by the seller and buyer; or (3) material defects that occur after final settlement. Finally, according to 68 Pa. C.S. 97310, "[a]n agent of a seller or a buyer shall not be liable for any violation of this chapter unless the agent had actual knowledge of a material defect that was not disclosed to the buyer or of a misrepresentation relating to a material defect." Application of Law to Facts Defendants Mentzer. There exists a genuine issue of material fact as to whether or not the Mentzers negligently and/or intentionally misrepresented the water situation on the property. Viewing the record in the light most favorable to the Plaintiffs, evidence has been filed to support Plaintiffs' allegations of misrepresentation by the Mentzers. First, Plaintiffs presented evidence tending to show that the alleged water damage problems caused the presence of mold in the home through the deposition of John Daines and the report by Steven Yingst. Second, Plaintiffs presented evidence tending to show that Defendants knew of the alleged water damage problems through the Deposition of John Daines (referencing a post-settlement conversation with Mr. Mentzer, in which Mr. Mentzer referred to a leak in the house which had not been disclosed). Also, the reports of Steve Yingst, professional engineer, and Robert A, Pfromm, C.I.H., for Advance Applied Sciences, Inc., which were filed of record, provide evidence to support the presence of a water problem on the property. Finally, Plaintiffs presented evidence tending to show that mold caused Plaintiffs' allergic reactions or other alleged medical symptoms through the deposition of Becky Daines and reports from her doctors, Valentine M. Osborne, D.O., and Eckardt Johanning, M.D., M.Sc. Defendants RE/MAX Realty Associates. As to the alleged misrepresentation and violation of the Real Estate Seller Disclosure Act by RE/MAX the Plaintiffs, who bear the burden of proof at trial, have failed to produce evidence of facts essential to these causes of action and summary judgment should be granted as a matter of law. Although Plaintiffs have produced evidence of facts through deposition testimony and expert 10 reports that the alleged water damage problems caused the presence of mold in the home and that the mold caused Plaintiffs' allergic reaction, Plaintiffs have not produced evidence of facts tending to show that Defendant RE/MAX actually knew of the alleged water damage problems. N or have Plaintiffs produced evidence from which a trier of fact could reasonably conclude that RE/MAX should have been aware of the alleged state of the home. The depositions of John and Becky Daines acknowledge that the RE/MAX agent did not make any representations or statements suggesting knowledge of mold on the property. The only evidence that Plaintiffs offer is an overheard conversation in which aRE/MAX agent allegedly stated that it was standard practice in California to test for mold when a house was unoccupied for several months. Examining the record regarding the three causes of action against RE/MAX, violation of the Real Estate Seller Disclosure Act, intentional misrepresentation, and negligent misrepresentation, in the light most favorable to Plaintiffs; Plaintiffs have failed to produce evidence of facts essential to all three causes of action. First, according to the Real Estate Seller Disclosure Act Section 7310, "[a]n agent of a seller ... shall not be liable for any violation of [the Real Estate Seller Disclosure Act] unless the agent had actual knowledge of a material defect that was not disclosed to the buyer or of a misrepresentation relating to a material defect." Act of December 20, 2000, P.L. 815, 91, as amended, 68 Pa. C.S. 97310 (emphasis added). Plaintiffs have not produced any evidence that RE/MAX possessed actual knowledge of the Mentzers' alleged misrepresentations, or of any water damage or mold infestation on the premises. The depositions of John and Becky Daines support the lack of knowledge by Defendant RE/MAX. Second, in a claim for intentional misrepresentation the representation must be "made falsely, with knowledge of its falsity or recklessness as to whether it is true or false." Bortz v. Noon, 556 Pa. 489, 499, 729 A.2d 555, 560 (1999) (citations omitted). Plaintiffs have not produced any evidence that RE/MAX made false statements with knowledge of the falsity. Plaintiffs have not shown that RE/MAX knew of the mold or 11 water damage or made any representations regarding the mold or water damage, as evidenced by the depositions of John and Becky Daines. Similarly, Plaintiffs have not produced any evidence that RE/MAX recklessly made false statements. Third, in a claim for negligent misrepresentation the misrepresentation must be "made under circumstances in which the misrepresenter ought to have known its falsity." Bortz v. Noon, 556 Pa. 489, 500-501, 729 A.2d 555, 561 (1999) (citations omitted). Plaintiffs offered evidence of an overheard conversation in which a RE/MAX agent allegedly stated that it was standard practice in California to test for mold when a house was unoccupied for several months. However, Plaintiffs offered no evidence of the standard practice in Pennsylvania or that RE/MAX ought to have known of the alleged water damage and resulting mold. In the court's view, the record in this case is sufficient to establish a genuine issue of material fact with respect to the question of whether Defendants Mentzer misrepresented the situation in question. Therefore, the Motion for Summary Judgment filed on behalf of Defendants Mentzer will be denied. However, the Motion for Summary Judgment filed on behalf of Defendant RE/MAX Realty Associates as to the alleged violation of the Real Estate Seller Disclosure Act and misrepresentation RE/MAX is entitled to judgment as a matter of law, and the summary judgment motion must be granted. The following order will therefore be entered: ORDER OF COURT AND NOW, this 17th day of October, 2005, upon consideration of Defendants motions for summary judgment, and for the reasons stated in the accompanying opinion, it is ordered and directed as follows: 1) The Motion for Summary Judgment filed on behalf of Defendants Mentzer is denied; and 2) The Motion for Summary Judgment filed on behalf of Defendant RE/MAX Realty Associates is granted. 12 BY THE COURT, s/ 1. Wesley Oler, Jr. 1. Wesley Oler, Jr., 1. Gregory B. Abeln, Esq. 37 East Pomfret Street Carlisle, P A 17013 Attorney for Plaintiffs John and Becky Daines James Goldsmith, Esq. 3631 North Front Street Harrisburg, P A 17110 Attorney for Defendant RE/MAX William A. Addams, Esq. 27 West High Street Carlisle, P A 17013 Attorney for Defendants Donald E. and Shirley M. Mentzer 13