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HomeMy WebLinkAbout94-3099 CivilKATHLEEN M. NYE, Plaintiff Ve STEPHEN L. HESS, GAIL F. : HESS, BEN BRENEMAN & : ASSOCIATES, BEN L. BRENEMAN, : LYLE FORER, JOHN GLISE, INC., : JOHN E. GLISE, HARRIET : JENAKOVICH, THE TERMINIX : INTERNATIONAL CO. LIMITED : PARTNERSHIP, JOE HOLTZINGER, : WILLIAM D. SCHRACK, III, ESQ.,: Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-3099 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS JOSEPH P. HOLTZINGER AND THE TERMINIX INTERNATIONAL CO. LIMITED PARTNERSHIP BEFORE SHEELY, P.J., and OLER, J. ORDER OF COURT AND NOW, this 2~f~ day of August, 1996, after careful consideration of the Motion for Summary Judgment of Defendants Joseph P. Holtfinger and the Terminix International Co. Limited Partnership, and for the reasons stated in the accompanying opinion, the motion is DENIED. Taylor P. Andrews, Esq. 78 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff BY THE COURT, James L. Goldsmith, Esq. 3631N. Front Street Harrisburg, PA 17110-1533 Attorney for Defendants Stephen L. & Gail F. Hess Charles E. Haddick, Jr., Esq. Atrium West, Suite 304 3461 Market Street Camp Hill, PA 17011 Attorney for Defendants Ben Breneman & Associates, Inc., Ben L. Breneman and Lyle Forer David Mills, Esq. P. O. Box 2588 York, PA 17405 Attorney for Defendants John Glise, Inc., John E. Glise, and Harriet Jenakovich Timothy J. McCuen, Esq. The Curtis Center, 4th Floor Independence Square West Philadelphia, PA 19106-3304 Attorney for Defendants Terminix International Co. Limited Partnership, and Joseph P. Holtzinger C~rol A~ Steinour, Esq. P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant William D. Schrack, III, E~q. : rc KATHLEEN M. NYE, Plaintiff V® STEPHEN L. HESS, GAIL F. HESS, BEN BRENEMAN & ASSOCIATES, BEN L. BRENEMAN, : LYLE FORER, JOHN GLISE, INC., : JOHN E. GLISE, HARRIET : JENAKOVICH, THE TERMINIX : INTERNATIONAL CO. LIMITED : PARTNERSHIP, JOE HOLTZINGER, : WILLIAM D. SCHRACK, III, ESQ.,: Defendants : IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW NO. 94-3099 CIVIL TERM IN RE: MOTION FOR SUMMARY JUDGMENT OF DEFENDANTS JOSEPH P. HOLTZINGER AND THE TERMINIX INTERNATIONAL CO. LIMITED PARTNERSHIP BEFORE SHEELY, P.J., and OLER, J. OPINION and ORDER OF COURT This civil action for damages arises out of the purchase by Plaintiff, Kath%een M. Nye, of an allegedly termite-infested house which, she claims, was falsely represented to her as being free of termites. Presently before the court is a motion for summary judgment of Defendants Joseph P. Holtzinger and Terminix International Co. Limited Partnership. For the reasons stated in this opinion, Defendants' motion for summary judgment will be denied. STATEMENT OF FACTS In reciting the following facts, the court has viewed "the record and any inferences therefrom ... in the light most favorable to the nonmoving party." Drapeau v. Joy Technologies, Inc., Pa. Super. __, __, 670 A.2d 165, 167 (1996) (standard for review of record on summary judgment motion). This recitation is not NO. 94-3099 CIVIL TERM intended to represent an endorsement by the court of the version of events stated hereafter. Plaintiff is an adult individual residing at 1937 Chatham Drive, Camp Hill, Cumberland County, Pennsylvania.~ Defendant Joseph P. Holtzinger is an adult individual employed by the Terminix International Co. Limited Partnership (hereinafter, Terminix) and residing at 3036 Mayferd Lane, Camp Hill, Cumberland County, Pennsylvania.2 Defendant Terminix is a limited partnership with a place of business located at Suite 508, 3905 Hartzdale Drive, Camp Hill, Cumberland County, Pennsylvania.3 In April of 1986, a Termite Service Plan was generated for a house located at 1937 Chatham Drive, Camp Hill, Cumberland County, Pennsylvania by~Terminix, after the owner of the premises, a Ronald Y. Eyler, contacted Terminix to have his home treated for subterranean termites.4 The termite service plan provided, in part, that, "[d]ue to the nature of the construction and/or the extent of existing damage of the identified property, this agreement does not guarantee for the control of present or future Plaintiff's Complaint, paragraph 1. Plaintiff's Complaint, paragraphs 10, 85, 91. Plaintiff's Complaint, paragraph 9. 4 Response of Plaintiff to First Request of Defendants Ben Breneman & Associates, Ben L. Breneman, and Lyle Forer for Production of Documents, Documents for Request No. 2, Report of Dr. Thomas A. Parker, at 2, Exhibits A (Termite Service Plan), E (Guarantee No. SR 864100116). 2 NO. 94-3099 CIVIL TERM damage to property or contents, nor provide for repairs or compensation thereof."$ The effort to treat the subterranean termite infestation at the house began with the application of fifty gallons of a product called Aldrinon to the home on April 2, 1986.6 The initial treatment was followed by the application of unspecified chemicals on April 19, 1986, Dursban PT 270 (an aerosol form of Chlorpyrifos) on April 21, 1986, and Dursban TC on August 29, 1986.7 A "Wood- Destroying Organism Pesticide Application Record" (referred to in the record as a "PAR") was generated following the August 29th re- treatment.8 The house, however, continued to experience termite problems, and in 1987 T~rminix applied one gallon of Dursban TC to the premises in March and another in August.9 In the spring of 1988, termites were again found in and around the home.~° This time the Report of Dr. Thomas A. Parker, Exhibit A. 6 Report of Dr. Thomas A. Parker at 3, Exhibit D (Completion Certificate dated April 2, 1986). 7 Report of Dr. Thomas A. Parker at 3-4, Exhibits F (Completion Certificate dated April 19, 1986), G (Completion Certificate dated August 29, 1986), I (Completion Certificate dated August 29, 1986). 8 Report of Dr. Thomas A. Parker at 4, Exhibits J (PAR dated August 30, 1986), K (PAR dated March 21, 1987). 9 Report of Dr. Thomas A. Parker at 4, Exhibit K (PAR dated March 21, 1987). Report of Dr. Thomas A. Parker at 5. NO. 94-3099 CIVIL TERM house was treated with thirty gallons of Pryfon 6.~ There are no records regarding Terminix involvement with the house in 1989. In 1990, the house was owned by Stephen L. Hess and Gail F. Hess, defendants in the present action.~2 The original termite service plan with Terminix was transferred to the Hesses.~3 During a 1990 re-inspection, termites were found in an oak support post in the kitchen.TM Terminix re-treated the premises with Dursban TC in May of 1990.~s In the spring of 1991, Terminix was once again called on to treat the termite problem at the house. This time, Terminix applied four ounces of Dursban PT 270.~6 On March 3, 1992, Terminix inspected the home and found termite swarmers in the interior of the home and termite workers on the exterior of the house.~7 .. ~ Report of Dr. Thomas A. Parker at 5, Exhibit M (PAR dated April 4, 1988). ~4 Report of Dr. Thomas A. Parker at 5, Exhibit P (Re- Inspection Report covering April 1989 to April 1990). ~s Report of Dr. Thomas A. Parker, at 5, Exhibit Q (PAR dated May 8, 1990). ~6 Report of Dr. Thomas A. Parker at 6, Exhibit R (PAR dated April 16, 1991). ~7 Report of Dr. Thomas A. Parker at 6, Exhibit S (Re- Inspection Service Receipt covering April 1992 to April 1993). 4 NO. 94-3099 CIVIL TERM Three days later, on March 6, 1992, Plaintiff contracted to purchase the house from the Hesses.~8 The Agreement of Sale for the premises included a provision regarding wood infestation.~9 According to that provision, prior to settlement the sellers were responsible, at their expense, to have a pest control operator conduct an inspection of the premises and provide a written "Wood Destroying Insect Infestation and Resultant Damage Report" to all parties to the Agreement.2° This report was to confirm that an inspection of the readily visible and accessible area of all the structures had been made satisfactory to and in compliance with applicable laws, mortgage and lending institutions, and/or Federal Insuring and Guaranteeing Agency requirements, if any.2~ If this inspection reve~led any evidence of active infestation or previous infestations not previously corrected, sellers agreed to have the structure treated for such infestation.22 In the alternative, the buyer could take the property as is, or, have all monies paid to the sellers, together with the buyer's expenses, returned.23 ~8 Plaintiff's Complaint, paragraph 22, Exhibit 1 (Agreement of Sale) . ~9 Plaintiff's Complaint, Exhibit 1. 2o Id. ~ Id. 2~ Id. ~ Id. 5 NO. 94-3099 CIVIL TERM Plaintiff relied upon the protection afforded by this provision in executing the Agreement.24 On March 7, 1992, one day after the Agreement of Sale was signed, Terminix applied twenty-five gallons of Pryfon 6 and ten ounces of Dursban PT 270 to the premises.2s However, by the end of the month swarmer termites were once again found in the house and Terminix had to re-treat the property for subterranean termites, this time with an aerosol of Dursban pT 270.26 Despite this treatment, during an annual re-inspection conducted on April 8, 1992, termite swarmers were found in the kitchen and the bathroom.27 Consequently, on April 13, 1992 an aerosol form of Baygon was applied to the inside of the house.28 PT 250 was also applied during this reitreatment.29 In a further effort to bring the Plaintiff's Complaint, paragraph 25, Exhibit 1. 2s Report of Dr. Thomas A. Parker at 7, Exhibit U (PAR dated March 7, 1992). 26 Report of Dr. Thomas A. Parker at 7, Exhibit V (PAR dated March 26, 1992). 27 Report of Dr. Thomas A. Parker at 7, Exhibit W (Re- Inspection Report covering April 1991 to April 1992). 28 Report of Dr. Thomas A. Parker at 7, Exhibit X (PAR dated April 13, 1992). Id. NO. 94-3099 CIVIL TERM termite problem under control, ten gallons of Pryfon 6 were applied to the home on April 21, 1992.3° Terminix was requested to fill out a wood-destroying insect information form for use in the wood-destroying insect report called for in the Agreement of Sale.3~ The form specifically stated that "[t]he information requested on this form will be used in evaluating the property for a VA or HUD insured loan."32 On the form, Terminix was asked to indicate, based on a careful visual inspection of the readily accessible areas of the property, whether there was visible evidence of wood-destroying insects, whether there was visible evidence of any previously treated infestation which was now inactive, and whether there was any damage that could be observed from~any wood-destroying insect infestation.33 Further, if Terminix indicated that there was visible evidence of a past infestation, it was directed to submit an explanation of this in item 10 of the form.34 30 Report of Dr. Thomas A. Parker at 8, Exhibit Y (PAR dated April 21, 1992). ~ Plaintiff's Complaint, Exhibit 2 (Wood Destroying Insect Report). 32 Id. Id. Id. NO. 94-3099 CIVIL TERM Terminix completed the form on April 28, 1992.3~ In it, Terminix indicated that "visible evidence of a previously treated infestation which is now inactive, was observed.''36 By way of further explanation, Terminix stated in item 10 of the form that "[p]ossible hidden damage may exist behind enclosed walls, ceilings, and floors" and that the "[h]ouse was treated by Terminix on 4/2/86.'.37 Terminix did not explain in item 10 that the previous, allegedly inactive, termite infestation had also been treated by Terminix on numerous occasions since April 2, 1986. Terminix did not indicate that there was any sign of present termite problems on the premises. Nor did Terminix indicate that there was termite damage on the premises. It was also stated on the wood-destroying insect form that the form was not a "warranty as to absence of wood-destroying insects" and that it was "indicative of the condition of the structure(s) on the date of the inspection and [was] not to be construed as a guarantee or warranty against future infestation or damage.''38 A form designated "Inspection Report for Real Estate Transfers" was also prepared by Terminix for use in the wood- Id. Plaintiff's Complaint, Exhibit 2. Id. Id. NO. 94-3099 CIVIL TERM destroying insect report.39 The inspection report indicated that there were "no visible signs of damage at [the] time of inspection" and that there might be "possible hidden damage."4° The inspection report also provided, in part, as follows: Terminix cannot guarantee that the damage disclosed by visual inspection of the premises shown above represents the entirety of the damage which may exist as of the date of the inspection. Terminix shall not be responsible for repair of any existing damage, including without limitation an[y] damage which existed in areas or in structural members which were not accessible for visual inspection as of the date of this report.4~ Settlement on the house occurred on June 6, 1992; at that time, the wood-destroying insect form and the inspection report were provided to Plaintiff as part of the wood-destroying insect report called ~or in the Agreement of Sale.~2 Plaintiff read the report with some concern that there might be termites on the property.43 However, in reliance on the fact that the documents included in the report indicated that there was presently no problem with termites on the premises, and that, although there had been a previous infestation, it had been treated once, six years Id. Id. Plaintiff's Complaint, Exhibit 2. Plaintiff's Complaint, paragraphs 28, 30, Exhibit 2. Plaintiff's Complaint, paragraph 32. 9 NO. 94-3099 CIVIL TERM before, Plaintiff completed settlement by paying the Hesses $75,150.00, in exchange for a deed to the property.44 Soon after obtaining possession of the premises in mid-June of 1992, Plaintiff discovered that the house was infested with termites.4s Moreover, Plaintiff discovered that the property was the subject of a treatment contract with Terminix and that the premises had recently been treated by Terminix for active termites.4~ Plaintiff contacted Terminix regarding these discoveries ahd was informed, at that time, that the termite service plan would be transferred to her automatically.47 Plaintiff never signed a treatment agreement with Terminix.~8 ~ Plaintiff's Complaint, paragraph 34; Plaintiff's Affidavit Regarding Motion for Summary Judgment, paragraph 3. Plaintiff also avers that she relied on oral assurances made at that time by Plaintiff's attorney, William D. Schrack III, Esq., the listing agent, Lyle Forer, and the real estate agent, Harriet Jenakovich, all of whom are named as defendants in the present complaint, that the treatment was six years prior to the inspection, that the disclaimer with regard to possible hidden damage was standard, and that there was no problem with termites on the premises. Plaintiff's Complaint, paragraph 33. Plaintiff's Complaint, paragraph 38. Plaintiff's Complaint, paragraph 39. "7 Plaintiff's Affidavit Regarding Motion for Summary Judgment, paragraph 4. Id. 10 NO. 94-3099 CIVIL TERM In early 1993 Terminix performed an annual re-inspection.49 Swarmer termites were found inside the home.So Termite damage was discovered in the flooring of one of two second-story rooms, and, notwithstanding ongoing efforts to control them, termites remain active on the premises and continue to cause damage.5~ Because of · this damage and the persisting infestation of the premises, "[s]ubstantial future damage of the premises by termites cannot be prevented and the premises has been rendered unmarketable and of no economic value to the Plaintiff."52 With regard to Defendant Holtzinger, Plaintiff avers that he conducted the termite inspection of the premises and prepared, signed and submitted the inspection report.53 Plaintiff also claims that Holtzinger~knew that his report would be transmitted to the purchaser of the house and that, as the purchaser, Plaintiff would rely upon the information.54 representations made in misrepresentations in that Plaintiff further avers that the the inspection report were they failed to fully disclose the ~9 Report of Dr. Thomas A. Parker at 10. 50 Report of Dr. Thomas A. Parker at 10, Exhibit BB Inspection Report). s~ Plaintiff's Complaint, paragraphs, 40, 41. s2 Plaintiff's Complaint, paragraph 43. ~3 Plaintiff's Complaint, paragraph 85. ~4 Plaintiff's Complaint, paragraph 86. 11 ( Re- NO. 94-3099 CIVIL TERM previous treatments and on-going termite activity on the premises,ss Additionally, Plaintiff avers that these misrepresentations were "knowingly" and "intentionally" made by Holtzinger "in bad faith and constitute[d] outrageous conduct."s6 Plaintiff seeks compensatory and punitive damages against Holtzinger. With regard to Defendant Terminix, Plaintiff avers that Holtzinger was an agent of Terminix and was acting in furtherance of the business of Terminix.~7 The conduct of Holtzinger, according to Plaintiff, was "authorized or approved by," and was "foreseeable by," Terminix.~8 Accordingly, Plaintiff also seeks punitive and compensatory damages against Defendant Terminix. Defendants Holtzinger and Terminix have filed a motion for summary judgment contending that (1) neither Holtzinger nor Terminix can be held liable to Plaintiff on her misrepresentation claim because neither had a duty to disclose their knowledge of the termite infestation or treatment history of the house to Plaintiff;~9 and (2) even if Holtzinger or Terminix could be found liable, Plaintiff's sole remedy is re-treatment of the property due to limitations of liability contained in the termite service plan, Plaintiff's Complaint, paragraphs 87, 88. Plaintiff's Complaint, paragraphs 87, 89. Plaintiff's Complaint, paragraphs 85, 91. Plaintiff's Complaint, paragraphs 92, 93. Defendants' Motion for Summary Judgment, paragraphs 10,11. 12 NO. 94-3099 CIVIL TERM wood-destroying insect estate transfers.6° form and the inspection report for real DISCUSSION A motion for summary judgment as a matter of law is properly granted "(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 ... 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." Pa. R.C.P. 1035.2. As noted previously, in the consideration of a motion for summary judgmeN% "the record and any inferences therefrom must be viewed in the light most favorable to the nonmoving party and any doubt must be resolved against the moving party." Drapeau v. Joy Technologies, Inc., Pa. Super. , , 670 A.2d 165, 167 (1996). With respect to the contention of Defendants Holtzinger and Terminix that they cannot be held liable to Plaintiff on her misrepresentation claim because they had no duty to disclose their knowledge of the termite problems affecting the house, it may be noted that the tort of fraud consists of five elements: (1) a misrepresentation; (2) a fraudulent utterance thereof; (3) an 60 Defendants' Motion for Summary Judgment, paragraphs 12, 13. 13 NO. 94-3099 CIVIL TERM intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damages to the recipient as the proximate result. Woodward v. Dietrich, 378 Pa. Super. 111, 124, 548 A.2d 301, 307 (1988). Implicit within the second element is the presence of an intent or scienter necessary for an utterance to be fraudulent - i.e., knowledge or belief on the part of the maker of the utterance that the matter was not as he or she represented it to be, or a lack of confidence ~in the accuracy of the representation that was stated or implied, or an awareness that there was not a basis for the representation that was stated or implied. B.O.v.C. 0., 404 Pa. Super. 127, 132 n.1, 590 A.2d 313, 315 n.1 (1991),~ Moreover, it has been said that "a party may be held liable for damages proximately resulting from a person's reasonable reliance on fraudulent misrepresentations, despite the fact that such a person had no privity with the party making the misrepresentations and was not specifically intended to rely on the misrepresentations, when the reliance was nonetheless specially foreseeable ... so long as under the particular circumstances of the case presented the liability to be recognized is not indefinite as to amount, duration, or class of prospective plaintiffs." Woodward v. Dietrich, 378 Pa. Super. 111, 115, 548 A.2d 301, 303 (1988). 14 NO. 94-3099 CIVIL TERM "Where the means of obtaining information are not equal, the positive representations of the person who is supposed to possess superior means of information may be relied on." Siskin v. Cohen, 363 Pa. 580, 584, 70 A.2d 293, 295 (1950), quoting Emery v. Third Nat. Bank of Pittsburgh, 314 Pa. 544, 548, 171 A. 881, 882 (1934). First, as to the misrepresentation and fraudulent utterance elements of fraud, Plaintiff claims that the representations made by Holtzinger and Terminix in the wood-destroying insect report misrepresented the extent of the termite problems affecting the house. In the report, Holtzinger and Terminix allegedly stated that a previous termite problem was noted, but that there was no sign of current infestation. The report allegedly further explained that~the previous infestation was inactive and had been treated on April 2, 1986. In contrast to the wood-destroying insect report, the record, read in the light most favorable to Plaintiff, could be considered to show that Holtzinger and Terminix had reason to believe that there was an active termite infestation on the premises or that the previous termite problem had not been solved by means of the April 2, 1986 treatment. In fact, the record could be read to demonstrate that not only had Terminix unsuccessfully attempted to control the termite problem on the premises on numerous other occasions since 1986, but that Terminix had treated the house for termites just seven days before it completed the wood-destroying 15 NO. 94-3099 CIVIL TERM insect form. A trier of fact could, thus, find that the information which Holtzinger and Terminix allegedly reported in the wood-destroying insect report was contrary to the true information known to them, and that they had intentionally misrepresented the extent of the termite problems facing the house. As to the intent-to-induce-reliance element of fraud, the record, read in the light most favorable to Plaintiff, could be seen to indicate that Holtzinger and Terminix had reason to expect that the wood-destroying insect report, although ostensibly prepared at the request of the Hesses, would induce action by Plaintiff. From the nature of the forms allegedly prepared by Terminix for the wood-destroying insect report, it could be concluded that. the report was intended to affect a decision to finance and purchase the house. According to Plaintiff's version of the facts, the wood-destroying insect form specifically stated that the form was to be used in evaluating the property for a home loan, while the inspection report was specifically designated as being for real estate transfers. Under these circumstances, a trier of fact could find that the reliance of Plaintiff, as the purchaser of the home, on misrepresentations of Holtzinger and Terminix was "specially foreseeable." In that case, there would be no need for Plaintiff to have been in privity with Holtzinger and Terminix, or specifically intended to rely upon their 16 NO. 94-3099 CIVIL TERM representations for Holtzinger and Terminix to be held liable to Plaintiff for the misrepresentations.6~ As to the justifiable reliance element of fraud, a trier of fact could find that Plaintiff was justified in relying on the alleged misrepresentations made in the wood-destroying insect report by Holtzinger and Terminix, despite the limiting language found in the wood-destroying insect report to the effect that the report was not a guarantee that no termite infestations or damage existed in the house at that time. The record could be seen to indicate that Holtzinger and Terminix were professionals in the field of termite control, while Plaintiff was not. If this was the case, Holtzinger and Terminix could be said to have had a significant adyantage over Plaintiff in their knowledge of termite infestations. A trier of fact could find, therefore, that Plaintiff had reason to expect that Holtzinger and Terminix would make a professional, good faith effort to accurately report on the termite status of the house, without intentionally misrepresenting the nature or the extent of the problem, and to rely on that expectation when deciding whether or not to purchase the home.62 As to the final element of fraud - damages - a trier of fact could find that the wood-destroying insect report allegedly ~ Woodward v. Dietrich, 378 Pa. Super. 111, 548 A.2d 301 (1988). ~ See Siskin v. Cohen, 363 Pa. 580, 70 A.2d 293 (1950). 17 NO. 94-3099 CIVIL TERM prepared by Holtzinger and Terminix fraudulently misrepresented the nature and the extent of the termite problem affecting the house, and that, in reliance on the misrepresentations found in the report, Plaintiff suffered damages when she purchased a house which turned out to be unmarketable and of no economic value due to a termite infestation. With respect to the contention of Holtzinger and Terminix that Plaintiff's sole remedy in this case would be re-treatment of the property due to the limiting language contained in the termite service plan, wood-destroying insect form, and the inspection report, the Court does not believe it can hold, as a matter of law, that such limiting language would shield Holtzinger and Terminix from liability ~for commission of fraud.63 In cases involving commercial disputes between sophisticated enterprises that have established their rights and liabilities by contract,'"contractual provisions limiting warranties, establishing repair or replacement as the exclusive remedy for breach of warranty and excluding liability for special, indirect and 63 Holtzinger and Terminix claim that the termite service plan contains a provision which provides, in part, that "Terminix's liability under its Guaranty is limited to re-treatment only." Defendants' Motion for Summary Judgment, paragraph 5. In support of their claim Defendants rely on admissions by Plaintiff contained in "Defendants, the Terminix International Company L.P. and Joseph P. Holtzinger's Requests for Admission Addressed to Plaintiff." However, this document was not filed with the court and therefore does not form part of the record. The copy of the termite service plan filed with the court does not contain this provision. Report of Dr. Thomas A. Parker, Exhibits A, E. 18 NO. 94-3099 CIVIL TERM consequential damages in a commercial setting are generally valid and enforceable." New York State Elec. & Gas Corp. v. Westinghouse Elec. Corp., 387 Pa. Super. 537, 548, 564 A.2d 919, 924 (1989). However, the record in this case does not compel a conclusion that Plaintiff is a sophisticated commercial entity. Instead, from the record it could be concluded that Plaintiff was simply an individual who decided to purchase a home for her own personal use. Moreover, Plaintiff is not claiming that she was damaged by a failure of Holtzinger and Terminix to perform a contract which she entered into with them. Plaintiff alleges that the termite service plan generated for the house in 1986 was transferred to her automatically sometime after Plaintiff obtained possession of the house in 1992.~ ~ccording to Plaintiff, she did not know about the existence of the termite service plan at the time she received the wood-destroying insect report of Holtzinger and Terminix and decided to purchase her home. Furthermore, even in cases involving contract claims, "[a]n allegation of fraud opens the door not only to recovery on an independent tort theory of deceit ... but may also provide a defense to enforcement of an otherwise binding contract or a ground for rescission thereof." Id. at 553, 564 A.2d at 927. Here, Plaintiff has stated an independent claim for fraud sufficient to allow a trier of fact to pass upon the question of whether the alleged representations of Holtzinger and Terminix were fraudulent. 19 NO. 94-3099 CIVIL TERM Thus, for the reasons stated above, Defendants' motion for summary judgment must be denied. ORDER OF THE COURT: AND NOW, this 23rd day of August, 1996, after careful consideration of the Motion for Summary Judgment of Defendants Joseph P. Holtzinger and the Terminix International Co. Limited Partnership, and for the reasons stated in the accompanying opinion, the motion is DENIED. BY THE COURT, s/ J. Wesley Oler,Jr. J. Wesley Oler, Jr., J. Taylor P. Andrgws, Esq. 78 West Pomfret Street Carlisle, PA 17013 Attorney for Plaintiff James L. Goldsmith, Esq. 3631N. Front Street Harrisburg, PA 17110-1533 Attorney for Defendants Stephen L. and Gail F. Hess Charles E. Haddick, Jr., Esq. Atrium West, Suite 304 3461 Market Street Camp Hill, PA 17011 Attorney for Defendants Ben Breneman & Associates, Inc., Ben L. Breneman and Lyle Forer David Mills, Esq. P. O. Box 2588 York, PA 17405 Attorney for Defendants John Glise, Inc., John E. Glise, and Harriet Jenakovich 20 NO. 94-3099 CIVIL TERM Timothy J. McCuen, Esq. The Curtis Center, 4th Floor Independence Square West Philadelphia, PA 19106-3304 Attorney for Defendants Terminix International Co. Limited Partnership, and Joseph P. Holtzinger Carol A. Steinour, Esq. P.O. Box 1166 Harrisburg, PA 17108-1166 Attorney for Defendant William D. Schrack, III, Esq. : rc 21