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HomeMy WebLinkAbout94-2988 EquityEDWARD B. KROMER and CAROLYN M. KROMER, Plaintiffs Ve ROBERT E. GOODLING and JUDY S. GOODLING, and WOLFE & SHEARER REALTORS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 94-2988 EQUITY TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' THIRD AMENDED COMPLAINT BEFORE BAYLEY* and OLER, JJ. ORDER OF COURT AND NOW, this ~ day of June, 1996, after careful consideration of the preliminary objections of the various Defendants, and for the reasons stated in the accompanying opinion, the preliminary objections are DENIED. Arthur T. McDermott, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Plaintiffs BY THE COURT, I. Wesley Ole~r~, 'J. Taylor P. Andrews, Esq. 78 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant Robert E. Goodling * Judge Bayley did not participate in the consideration or disposition of this case. Robert R. Black, Esq. 36 S. Hanover Street Carlisle, PA 17013 Attorney for Defendant Judy S. Goodling Hubert X. Gilroy, Esq. 4 North Hanover Street Carlisle, PA 17013 Attorney for Defendant Wolfe & Shearer Realtors : rc EDWARD B. KROMER and CAROLYN M. KROMER, Plaintiffs ROBERT E. GOODLING and JUDY S. GOODLING, and WOLFE & SHEARER REALTORS, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - EQUITY NO. 94-2988 EQUITY TERM IN RE: DEFENDANTS' PRELIMINARY OBJECTIONS TO PLAINTIFFS' THIRD AMENDED COMPLAINT BEFORE BAYLEY~ and OLER, JJ. OPINION and ORDER OF COURT Oler, J. This is a case involving a residential sale. The buyers, Edward B. Kromer and Carolyn M. Kromer, seek to rescind the sale, and to recover costs and attorney's fees, on the ground that the sellers, Robert E. Goodling and Judy S. Goodling, and the listing agent, Wolfe & Shearer Realtors, misrepresented the condition of, and failed to disclose certain defects in, the property. Currently before the court are various preliminary objections of the Defendants to Plaintiffs' third amended complaint. PROCEDURAL HISTORY; STATEMENT OF FACTS Plaintiffs' third amended complaint, which consists of a single count, contains the following averments of fact: Plaintiffs are Edward B. Kromer and Carolyn M. Kromer, husband and wife, residing at 150 Crain's Gap Road, Carlisle, Cumberland County, Pennsylvania. Defendants are Robert E. Goodling, residing at 258 West Baltimore Avenue, Carlisle, Cumberland County, Pennsylvania; ~ Judge Bayley did not participate in the consideration or disposition of this case. NO. 94-2988 EQUITY TERM Judy S. Goodling, residing at 505 South College Street, Carlisle, Cumberland County, Pennsylvania; and Wolfe & Shearer Realtors, with a place of business at 33 South Pitt Street, Carlisle, Cumberland County, Pennsylvania. On July 23, 1992, Plaintiffs purchased the residence at 150 Crain's Gap Road from Defendants Goodling. Wolfe & Shearer Realtors had served as the listing agent. The house had been advertised as "virtually a new home." However, the structure had a history of litigation and had been built on a "faulty foundation." The Goodlings "knew or should have known" of the history of the home and "willfully failed to disclose the known defective condition of the home." Wolfe & Shearer Realtors "knew or should have known the defective nature of the home, and failed to disclose the faulty construction to the Plaintiffs." By June of 1994, various specified "defects [were] ... being experienced." A "majority, if not all of the ... defects [were] caused by initial building defects, and settling due to an unsatisfactory foundation." On June 3, 1994, Plaintiffs commenced the instant action to rescind the sale of the property, and to recover costs and attorney's fees, on the basis of misrepresentation and nondisclosure. To Plaintiffs' third amended complaint, Defendants have filed a number of preliminary objections. 2 NO. 94-2988 EQUITY TERM Defendants Robert E. Goodling and Judy S. Goodling have filed preliminary objections in the nature of a demurrer and in the form of a motion for a more specific pleading. Defendant Wolfe & Shearer Realtors has filed a preliminary objection in the nature of a demurrer. The Goodling preliminary objections in the nature of a demurrer are based upon an absence of a specific allegation as to defects existing at the time of the sale, and upon a lack of duty on the part of a seller of real estate to warn a purchaser of unknown defects. The Goodling preliminary objections in the form of a motion for a more specific complaint are based upon the aforesaid absence of a specific allegation as to defects existing at the time of the sale and the absence of details as to the advertisement. The Wolfe & Shearer Realtors preliminary objections in the nature of a demurrer are based upon an absence of privity between Plaintiffs and the realtor, and the unfeasibility of relief in the form of rescission from one not a party to the contract to be rescinded. These preliminary objections will be discussed STATEMENT OF LAW Demurrer. "In order to sustain a demurrer, it is essential that an opponent's pleading indicate on its face that his claim ... cannot be sustained. The question to be decided is ... whether, hereafter. NO. 94-2988 EQUITY TERM upon the facts averred, it shows with certainty that the law will not uphold the pleading." 2 Goodrich Amram 2d §1017(b):27, at 271 (1991). "Since sustaining a demurrer [to a complaint] results in a denial of a pleader's claim ... a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without a doubt fail to state a claim for which relief may be granted. If the facts as pleaded state a claim for which relief may be granted ... under any theory of law, then there is sufficient doubt to require that a preliminary objection in the nature of a demurrer be rejected." Id., at 271-72. "[A] demurrer will not be sustained on the ground that a pleading is not sufficiently specific, because in such an instance, there is no certainty that the pleading will not prevail." 2 Goodrich Amram 2d §1017(b):27, at 272 (1991). Motion for a more specific pleading. "The question to be decided when a preliminary objection in the form of a motion for a more specific pleading is interposed ... is whether [the] pleading is sufficiently clear to enable an opposing party to prepare a response .... " 2 Goodrich Amram 2d §1017(b):21, at 265 (1991). "Pennsylvania is a fact-pleading jurisdiction. A complaint must therefore not only give the defendant notice of what the plaintiff['s] claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential 4 NO. 94-2988 EQUITY TERM to support the claim .... While it is impossible to establish precise standards as to the degree of particularity required in a given situation, two conditions must always be met. The pleadings must adequately explain the nature of the claim to the opposing party so as to permit him to prepare a defense and they must be sufficient to convince the court that the averments are not merely subterfuge." Sevin v. Kelshaw, 417 Pa. Super. 1, 7, 611A.2d 1232, 1235 (1992). "It has been held that [a] preliminary objection in the nature of a motion for a more specific pleading will be denied ... where the objecting party may be presumed to have at least as much knowledge of the information sought as does the pleader ... [or] where the objecting party seeks the pleading of evidence." Stone v. Dauphin Deposit Bank, No. 3933 Civil 1991, slip. op. at 4 (Cumberland Co. Feb. 24, 1992). "In general, when a party states a case in a manner that fully advises an opponent of the nature of the case and of the matters with which the opponent will be confronted at trial, there is no need for a motion for a more specific pleading; the opponent should seek discovery if he or she needs more information .... " 2 Goodrich-Amram 2d ~1017(b):24, at 268 (1991). Fraud. "Fraud must be averred with particularity as to the following elements: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) the maker's intent that the recipient be 5 NO. 94-2988 EQUITY TERM induced thereby to act; (4) the recipient's justifiable reliance on the misrepresentation; and (5) damage to the recipient as the proximate result." 3 Standard Pennsylvania Practice ~16:59, at 550 (1994). With regard to holding a person liable for fraudulent concealment, the following language from a Superior Court opinion is instructive: One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering. Sevin v. Kelshaw, 417 Pa. Super. 1, 9, 611A.2d 1232, 1236 (1992), quoting Restatement (Second) of Torts §550 (1977). Furthermore, "fraud may arise from the making of a knowingly false representation of fact, from an intentional concealment of true facts which is calculated to deceive the other party, or from a nonprivileged failure to disclose facts to the other party. The concealment must be intentional and it must relate to material information. Mere silence in the absence of a duty to speak, however, cannot suffice to prove fraudulent concealment." Sevin v. Kelshaw, 417 Pa. Super. 1, 9, 611 A.2d 1232, 1236 (1992). "A misrepresentation is material if it is of such character that had it not been made, or in the present case, had it been made, the transaction would not have been consummated." Id. at 10, 611A.2d 6 NO. 94-2988 EQUITY TERM at 1237. Negliqent misrepresentation. A person may be found liable for negligent misrepresentation under the following circumstances: One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Restatement (Second) of Torts S552 (1977); Sevin v. Kelshaw, 417 Pa. Super. 1, 13, 611 A.2d 1232, 1238 (1992). APPLICATION OF LAW TO FACTS With respect to the preliminary objections of Defendants Goodling in the nature of a demurrer, it appears to be one of Plaintiffs' allegations that the Goodlings failed to disclose known defects in a house with a history of litigation while the structure was being offered for sale as "virtually a new home." Although the complaint is somewhat ambiguous at certain points, it cannot be said that "clearly and without a doubt" the facts as pleaded fail to state a claim sounding in tort or contract upon which relief could be granted. With respect to the preliminary objections of Defendants Goodling in the form of a motion for a more specific pleading, the NO. 94-2988 EQUITY TERM advertisement(s) utilized by the sellers and their agent in the sale of the home would be as much within the knowledge of the sellers as the buyers. In addition, the causal connection between allegedly existing defects in the home as enumerated in Plaintiffs' complaint and underlying conditions allegedly known by, and concealed, by the sellers at the time of sale can be more fully examined during the discovery process; in this regard, it is believed that Plaintiffs' pleading sets forth the nature of the claim in sufficient detail to permit the sellers to formulate a basic defense. For these reasons, the motion of Defendants Goodling for a more specific pleading will not be granted. With respect to the preliminary objections of Defendant Wolfe & Shearer Realtors in the form of a demurrer, it appears that Plaintiffs are requesting certain incidental expenses in addition to the remedy of rescission. For this reason, it would not be appropriate to dismiss Plaintiffs' action against the realtor on the ground that no relief requested could be provided by that Defendant. Based upon the foregoing, the following Order will be entered: ORDER OF COURT AND NOW, this /~/~ day of June, 1996, after careful consideration of the preliminary objections of the various Defendants, and for the reasons stated in the accompanying opinion, 8 NO. 94-2988 EQUITY TERM the preliminary objections are DENIED. BY THE COURT, J~ W-esley O1~, Jr., J. ~ Arthur T. McDermott, Esq. 50 East High Street Carlisle, PA 17013 Attorney for Plaintiffs Taylor P. Andrews, Esq. 78 West Pomfret Street Carlisle, PA 17013 Attorney for Defendant Robert E. Goodling Robert R. Black, Esq. 36 S. Hanover Street Carlisle, PA 17013 Attorney for Defendant Judy S. Goodling Hubert X. Gilroy, Esq. 4 North Hanover Street Carlisle, PA 17013 Attorney for Defendant Wolfe & Shearer Realtors : rc