HomeMy WebLinkAbout94-3099 CivilKATHLEEN M. NYE, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
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 : NO. 94-3099 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS BEN BRENEMAN &
ASSOCIATES, BEN L. BRENEMAN, and LYLE FORER; PRELIMINARY
OBJECTIONS OF DEFENDANTS JOHN GLISE, INC., JOHN E. GLISE,
and HARRIET JENAKOVICH; and PRELIMINARY OBJECTIONS OF
DEFENDANTS STEPHEN L. HESS and GAIL F. HESS
BEFORE HESS and OLER, JJ.
ORDE OF COURT
AND NOW, this ~ ~L day of April, 1995, after careful
consideration of Defendants' Preliminary Objections, as well as
briefs and oral arguments presented on the matter, it is ORDERED as
follows:
1. The Preliminary Objections of Defendants Ben Breneman &
Associates, Ben L. Breneman, and Lyle Forer are DENIED.
2. The Preliminary Objections of Defendants John Glise, Inc.,
John E. Glise, and Harriet Jenakovich are DENIED.
3. The Preliminary Objections of Defendants Stephen L. Hess
and Gail F. Hess are DENIED.
BY THE COURT,
JU ~esley Ole~t~j, .~ ~
Taylor P. Andrews, Esq.
78 West Pomfret Street
Carlisle, PA 17013
Attorney for Plaintiff
James L. Goldsmith, Esq.
3631 N. 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
Joe Holtzinger
Carol A. Steinour, Esq.
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Defendant William D.
Schrack, III, Esq.
: rc
KATHLEEN M. NYE, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
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 : NO. 94-3099 CIVIL TERM
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANTS BEN BRENEMAN &
ASSOCIATES, BEN L. BRENEMAN, and LYLE FORER; PRELIMINARY
OBJECTIONS OF DEFENDANTS JOHN GLISE, INC., JOHN E. GLISE,
and HARRIET JENAKOVICH; and PRELIMINARY OBJECTIONS OF
DEFENDANTS STEPHEN L. HESS and GAIL F. HESS
BEFORE HESS and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
This action for damages arises out of the purchase by Kathleen
M. Nye (Plaintiff) of an allegedly termite-infested house which,
she claims, was falsely represented to her as being free of
termites. Presently before the Court are preliminary objections of
several Defendants to Plaintiff's complaint. For the reasons
stated in this Opinion, all of Defendants' preliminary objections
will be DENIED.
STATEMENT OF FACTS
The allegations in Plaintiff's complaint are summarized in the
following paragraphs. In relating these allegations, the Court is
not, of course, expressing any opinion as to their accuracy.
NO. 94-3099 CIVIL TERM
Plaintiff is an adult individual residing at 1937 Chatham
Drive, Camp Hill, Cumberland County, Pennsylvania.~ Defendants
Stephen L. Hess and Gail F. Hess (Defendants-Hess) are adult
individuals residing at 1045 Orrs Bridge Road, Mechanicsburg,
Cumberland County, Pennsylvania.2 Defendant Harriet Jenakovich is
an adult individual who is associated with the real estate office
of John Glise, Inc., and who conducts business at 3820 Market
Street, Camp Hill, Cumberland County, Pennsylvania.3 Defendant
John E. Glise is a registered real estate broker conducting
business with the real estate office of Defendant John Glise, Inc.,
a Pennsylvania corporation with offices at 3820 Market Street, Camp
Hill, Cumberland County, Pennsylvania.4
Defendant Lyle Forer is an adult individual associated with
the real estate office of Ben L. Breneman & Associates, and
conducts business at 5001 Carlisle Pike, Mechanicsburg, Cumberland
County, Pennsylvania.s Defendant Ben L. Breneman is a registered
real estate broker conducting business with the real estate office
of Defendant Ben Breneman & Associates, a Pennsylvania corporation
with offices at 5001 Carlisle Pike, Mechanicsburg, Cumberland
Plaintiff's Complaint, paragraph 1.
Plaintiff's Complaint, paragraph 2.
Plaintiff's Complaint, paragraphs 8, 12.
Plaintiff's Complaint, paragraphs 6, 7, 12.
Plaintiff's Complaint, paragraphs 5, 20.
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NO. 94-3099 CIVIL TERM
County, Pennsylvania.6
In January or February of 1992, Plaintiff contacted Defendant-
Jenakovich to provide assistance in finding a house to buy.7
Plaintiff told Defendant-Jenakovich that she wanted to avoid any
house with a history of termite problems.8
In late February or early March 1992, Defendant-Jenakovich
showed Plaintiff a residence at 1937 Chatham Drive, Camp Hill,
Cumberland County, Pennsylvania (the premises).9 Defendants-Hess
were the owners and occupiers of the premises at this time.~8
Defendants-Hess had engaged the real estate office of Defendant-Ben
Breneman & Associates to list the premises for sale, and Defendant-
Forer served as the listing agent and selling agent for Defendants-
Hess.~ According to Plaintiff, the premises were infested with
termites at this time and were being treated by Terminex, and there
was termite damage within the property.~2 Nevertheless, it is
alleged, no disclosure with regard to the infestation was made to
Plaintiff's Complaint, paragraphs 3, 4, 20.
Plaintiff's Complaint, paragraph 13.
Plaintiff's Complaint, paragraph 15.
Plaintiff's Complaint, paragraph 16.
Plaintiff's Complaint, paragraph 17.
Plaintiff's Complaint, paragraph 18, 19.
Plaintiff's Complaint, paragraph 21.
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NO. 94-3099 CIVIL TERM
Plaintiff.~3
Secure in the fact that she had made known to Defendant-
Jenakovich her aversion to any home with termite problems,
Plaintiff executed an Agreement of Sale for the premises on March
6, 1992.TM This Agreement included a provision regarding wood
infestation.~s According to that provision, prior to settlement,
the seller was responsible, at the seller's 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.~6 This report was to
provide that an inspection of the readily visible and accessible
area of all the structures was made satisfactory to and in
compliance with applicable laws, mortgage and lending institutions,
and/or Federal Insuring and Guaranteeing Agency requirements, if
any.~7 If this inspection revealed any evidence of active
infestation or previous infestations not previously corrected,
sellers agreed to have the structure treated for such infestation.~8
In the alternative, the buyer could take the property as is, or,
Plaintiff's Complaint, paragraph 23.
Plaintiff's Complaint, paragraphs 23, 24; Exhibit 1.
Plaintiff's Complaint, Exhibit 1.
Id.
Id.
Id.
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NO. 94-3099 CIVIL TERM
have all monies paid to the sellers, together with the buyer's
expenses, returned.~9 Plaintiff relied upon the protection afforded
by this provision in executing the Agreement.2°
Settlement on the premises occurred on June 6, 1992.2~ Until
this time, no mention had been made of termite problems on the
premises.22 At settlement, in the office of William D. Schrack,
III, Esq., (Defendant-Schrack), who represented Plaintiff, an
inspection report from Terminex was produced by either Defendant-
Forer, Defendant-Jenakovich, or the settlement agent for Ben
Breneman & Associates.23 After reviewing the report,~4 Plaintiff
expressed concern regarding termite damage and the possibility of
an on-going infestation.~5 In reliance on the oral assurances of
Defendant-Schrack, Defendant-Forer, and Defendant-Jenakovich that
the treatment was six years prior to the inspection, that the
disclaimer with regard to possible hidden damage was standard, and
Id.
Plaintiff's Complaint, paragraph 25, Exhibit 1.
Plaintiff's Complaint, paragraph 28.
Plaintiff's Complaint, paragraph 27.
Plaintiff's Complaint, paragraph 30; Exhibit 1.
Block 10 of the report stated: "Possible hidden damage may
exist behind enclosed walls, ceilings, and floors[.] House was
treated by Terminex on 4/2/86[.]" Plaintiff's Complaint, Exhibit
2.
2s Plaintiff's Complaint, paragraph 32.
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NO. 94-3099 CIVIL TERM
that there was no problem with termites on the premises, Plaintiff
completed settlement by paying Defendants-Hess $75,150.00, in
exchange for a deed to the property.26 Defendants-Hess remained
silent during the exchange with regard to any potential termite
problems.27
Soon after obtaining possession of the premises in mid-June of
1992, Plaintiff discovered that the house was infested with
termites.28 Moreover, Plaintiff discovered that the premises were
the subject of a treatment contract with Terminex and that the
premises had been treated for termite control on March 3, 1992,
three days before the execution of the Agreement.29 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.3°
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."3~
Plaintiff's Complaint, paragraphs 33, 34.
Plaintiff's Complaint, paragraph 33.
Plaintiff's Complaint, paragraph 38.
Plaintiff's Complaint, paragraph 39.
Plaintiff's Complaint, paragraphs 40, 41.
Plaintiff's Complaint, paragraph 43.
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NO. 94-3099 CIVIL TERM
Plaintiff commenced this action by filing a praecipe for a
writ of summons on June 9, 1994. Following issuance of a rule upon
Plaintiff to file a complaint, a complaint was filed on November
18, 1994.
With regard to Defendants-Hess, Plaintiff avers that "[t]he
concealment [of termite infestation and damage] and fraudulent
misrepresentation [as to the condition of the premises] by failure
to disclose ... was done intentionally and in bad faith and
constitutes outrageous conduct."32 Therefore, Plaintiff seeks
compensatory and punitive damages against Defendants-Hess.
With regard to Defendant-Forer, Plaintiff avers that he knew
or had reason to know of the on-going termite problems on the
premises and that he knew the inspection report from Terminex
produced at settlement was a misrepresentation.TM Therefore,
Plaintiff avers that "[t]he fraudulent misrepresentation by failure
to disclose ... was done intentionally and in bad faith and
constitutes outrageous conduct."~4 Plaintiff seeks compensatory and
punitive damages against Defendant-Forer.
With regard to Defendant-Breneman and Defendant-Breneman &
Associates, Plaintiff avers that Defendant-Forer was an agent of
Defendant-Breneman & Associates and was acting in furtherance of
Plaintiff's Complaint, paragraph 50.
See Plaintiff's Complaint, Count II.
Plaintiff's Complaint, paragraph 56.
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NO. 94-3099 CIVIL TERM
the business of Defendant-Breneman & Associates and Defendant-
Breneman.3s The conduct of Defendant-Forer, according to Plaintiff,
was "authorized by or ratified and approved by," and was
foreseeable to, Defendant-Breneman & Associates and Defendant-
Breneman.36 Plaintiff seeks compensatory and punitive damages
against these defendants as well.
With regard to Defendant-Jenakovich, Plaintiff avers that
Defendant-Jenakovich served as Plaintiff's agent with regard to the
purchase of the premises.37 According to Plaintiff, Defendant-
Jenakovich violated her duty as Plaintiff's agent in several
respects with regard to the alleged termite infestation of the
premises.38 Additionally, Plaintiff claims Defendant-Jenakovich
knew or had reason to know of the termite problem on the premises,
and that she knew that the report by Terminex produced at
settlement was a misrepresentation.TM Because of her failure to
inform Plaintiff of this, Plaintiff claims that "[t]he fraudulent
misrepresentation by failure to disclose ... was done intentionally
and in bad faith and constitutes outrageous conduct.-48 Plaintiff
Plaintiff's complaint, Counts III and IV.
Plaintiff's Complaint, paragraphs 59-60 and 63-64.
Plaintiff's Complaint, paragraph 66.
Plaintiff's Complaint, Count V.
Plaintiff's Complaint, paragraphs 71-74.
Plaintiff's Complaint, paragraph 75.
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NO. 94-3099 CIVIL TERM
also seeks compensatory and punitive damages against Defendant-
Jenakovich.
With regard to Defendant-Glise and Defendant-Glise, Inc.,
Plaintiff avers that Defendant-Jenakovich was an agent of
Defendant-Glise, Inc., and was acting in furtherance of her
employment and the business of Defendant-Glise, Inc., and of
Defendant-Glise.4~ The conduct of Defendant-Jenakovich, according
to Plaintiff, was "authorized by or ratified and approved by," and
was foreseeable to, Defendant-Glise, Inc., and Defendant-Glise.42
Therefore, Plaintiff seeks punitive and compensatory damages
against Defendant-Glise, Inc., and Defendant Glise.
Preliminary Objections were filed by Defendants Ben Breneman
& Associates, Ben L. Breneman, and Lyle Forer on December 12, 1994,
seeking to have stricken the claims for punitive damages in Counts
II, III, and IV of Plaintiff's complaint on the ground that
Plaintiff failed to plead facts sufficient to state a claim for
punitive damages.43 In the alternative, these Defendants have moved
for a more specific pleading, maintaining that Plaintiff's
complaint fails to set forth specific factual allegations upon
Plaintiff's Complaint, Counts VII and VIII.
Plaintiff's Complaint, paragraphs 78, 79, 82, 83.
Preliminary Objections of Defendants Ben Breneman &
Associates, Ben L. Breneman, and Lyle Forer, paragraph 9.
9
NO. 94-3099 CIVIL TERM
which the answering Defendants can prepare a meaningful response.44
Defendants Jenakovich, Glise, Inc., and Glise filed
preliminary objections on December 8, 1994, seeking to strike the
claims for punitive damages in Counts V, VI, and VII of Plaintiff's
complaint for legal insufficiency.45 Additionally, these Defendants
have also moved for a more specific pleading, requesting an Order
that Plaintiff state more specifically the facts creating the
agency relationship between Plaintiff and Defendant-Jenakovich.~6
Defendants-Hess filed Preliminary Objections on December 19,
1994, seeking a more specific pleading. According to Defendants-
Hess, Plaintiff has failed to plead items of special damage with
the requisite specificity.~7
Argument was held on all of the Defendants' preliminary
objections on February 1, 1995.
STATEMENT OF LAW
Motion to strike for leqal insufficiency or dismiss. It is
well settled in Pennsylvania that "[t]he test on preliminary
~ Preliminary Objections of Defendants Ben Breneman &
Associates, Ben L. Breneman, and Lyle Forer, paragraph 13.
45 See Preliminary Objections of Defendants John Glise, Inc.,
John E. Glise, and Harriet Jenakovich.
46 Preliminary Objections of Defendants John Glise, Inc., John
E. Glise, and Harriet Jenakovich; Motion for More Specific
Pleading.
~7 Preliminary Objections of Defendants Stephen L. Hess and
Gail F. Hess, paragraph 1.
10
NO. 94-3099 CIVIL TERM
objections [which would result in dismissal of a cause of action]
is whether it is clear and free from doubt from all of the facts
pleaded that the pleader will be unable to prove facts legally
sufficient to establish his right to relief." Bower v. Bower, 531
Pa. 54, 57, 611 A.2d 181, 182 (1992). In determining whether to
grant such a preliminary objection, the "Court must consider as
true all of the well-pleaded material facts set forth in [the]
complaint and all reasonable inferences that may be drawn from
these facts." Id. Moreover, "preliminary objections will only be
sustained if clear and free from doubt." Triage, Inc. v.
Commonwealth of Pennsylvania, Dept. of Transportation, 113 Pa.
Commw. 348, 354 n.7, 537 A.2d 903, 907 n.7 (1988).
In order to sustain a preliminary objection claiming that the
pleadings are legally insufficient,48 "it is essential that an
opponent's pleading indicate on its face that his claim or defense
cannot be sustained." 2 Goodrich-Amram 2d §1017(b):27, at 271
(1991).
The question to be decided is not whether the
statement of an opponent's claim or defense is
so clear in both form and specification as to
entitle the opponent to proceed to trial
without amending it, but whether, upon the
facts averred, it shows with certainty that
the law will not uphold the pleading.
Id.
Motion for a more specific pleading. With respect to a
48 Pa. R.C.P. 1028 (a)(4).
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NO. 94-3099 CIVIL TERM
preliminary objection in the form of a motion for a more specific
pleading,49 it has been stated that its purpose is "to insure that
an adverse party's right and ability to answer and defend will not
be unduly impaired by a pleader's vagueness in stating the grounds
of his or her suit." 5 Standard Pennsylvania Practice S25:57, at
167 (1993). Moreover, "[a] more specific pleading should not be
required as to matters about which the objecting party has, or
should have, as much or better knowledge than the pleader." Daz v.
Commonwealth, Dep't of Corrections, 135 Pa. Commw. 162, 171, 580
A.2d 452, 456 (1990).
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 to prepare a response.
2 Goodrich-Amram 2d §1017(b):24, at 268 (1991).
Punitive damaqes. The Supreme Court of Pennsylvania, in
addressing the issue of the propriety of assessing punitive damages
against a party, has said that
Pa. R.C.P. 1028(a)(3).
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NO. 94-3099 CIVIL TERM
[p]unitive damages may be awarded for conduct
that is outrageous, because of the defendant's
evil motive or his reckless indifference to
the rights of others. In assessing punitive
damages, the trier of fact can properly
consider the character of the defendant's act,
the nature and extent of the harm to the
plaintiff that defendant caused or intended to
cause and the wealth of the defendant.
Martin v. Johns-Manville Corp., 508 Pa. 154, 169-70, 494 A.2d 1088,
1096 (1985), quoting Restatement (Second) of Torts S908(2) (1965).
In a determination of whether punitive damages are appropriate,
"[t]he state of mind of the actor is vital." Feld v. Merrian, 506
Pa. 383, 396, 485 A.2d 742, 748 (1984). Assessing such damages is
"proper when a person's actions are of such an outrageous nature as
to demonstrate intentional, willful, wanton or reckless conduct."
SHV Coal, Inc. v. Continental Grain Co., 526 Pa. 489, 493, 587 A.2d
702, 704 (1991).
On the issue of whether a complaint sufficiently alleges that
a defendant's conduct rises to the level of displaying a reckless
indifference to the rights of others, it is necessary to "analyze
whether the complaint's allegations establish that the actor
actually knew or had reason to know of facts which created a high
risk of ... harm to [the] plaintiff." Field v. Philadelphia
Electric Co., 388 Pa. Super. 400, 425, 565 A.2d 1170, 1182 (1989).
"Furthermore, the defendant must have proceeded to act in conscious
disregard of or indifference to that risk." Id. If the complaint
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NO. 94-3099 CIVIL TERM
alleges that the defendant realized the high degree of risk
involved and consciously disregarded or exhibited indifference to
this risk, "a jury question on the issue of punitive damages
exists." Id. at 425-26, 565 A.2d at 1182.
With regard to the necessity of pleading facts evincing
malice, wantonness, or evil motive on the part of a defendant, it
is noted that Pennsylvania Rule of Civil Procedure 1019(a) sets
forth a general requirement for the pleading of material facts.
Rule 1019(b), however, provides that "[m]alice, intent, knowledge,
and other conditions of mind may be averred generally.-s°
Pleadinq special damages. Pennsylvania Rule of Civil
Procedure 1019(f) requires that "[a]verments of ... items of
special damage shall be specifically stated." With regard to this
specificity, it has been said that
[d]amages should be stated so that defendants
are reasonably advised of their nature.
General allegations of indebtedness, lumped
charges and gross sums intended to cover and
include different kinds and amounts of losses
and damages, are not sufficient, and the
complaint should, whenever possible, show how
the items of damage claimed are ascertained,
so that defendant may file a responsive
answer.
4 Standard Pennsylvania Practice 2d 221:63, at 74 (1993).
Existence of an aqency relationship. With regard to the
necessity of pleading specifically the facts on which an agency
Pa. R.C.P. 1019(b).
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NO. 94-3099 CIVIL TERM
relationship is based, it has been stated that "[w]hile it is
unnecessary to plead all the various details of an alleged agency
relationship, a complaint must allege, as a minimum, facts which:
(1) identify the agent by name or appropriate description; and (2)
set forth the agent's authority, and how the tortious acts of the
agent either fall within the scope of that authority, or, if
unauthorized, were ratified by the principal." Alumni Association,
Delta Zeta Zeta of Lambda Chi Alpha Fraternity v. Sullivan, 369 Pa.
Super. 596, 605 n.2, 535 A.2d 1095, 1100 (1987), aff'd, 524 Pa.
356, 572 A.2d 1209 (1990).
It has also been noted that
[i]t is not necessary to plead the details on
which the authorization or ratification or use
· .. is based. To require this would be to
require the pleading of evidence in violation
of the implicit limitation on Rule 1019(a) and
would depart from the express command of Rule
1019(a) that the material facts ... be stated
in a concise and summary form.
Earley v. Aetna Casualty & Surety Company, 59 D. & C.2d 623, 633
(Luzerne County 1971), quoting 2A Anderson, Pennsylvania Civil
Practice, §1019.35, at 171 (1969).
APPLICATION OF LAW TO FACTS
With regard to the motion of Defendants Breneman & Associates,
Breneman, and Forer to strike punitive damage claims in Counts II,
III, and IV of Plaintiff's complaint, premised upon legal
insufficiency of the pleading, the Court does not believe the
motion should be granted. Plaintiff alleges that Defendant-Forer
15
NO. 94-3099 CIVIL TERM
knew or had reason to know of the on-going infestation at the
premises, the damage already done, and the continued treatment of
the premises for termite control; that Defendant-Forer knew that
the termite inspection report from Terminex was a
misrepresentation; and that the conduct of Defendant-Forer was
authorized by, ratified and approved by, and foreseeable to,
Defendants Breneman & Associates and Breneman. It can not be said
that, if proven, such conduct could never be found by a trier of
fact to rise to the level of intentional, willful, wanton or
reckless behavior sufficient to support an award of punitive
damages.
With respect to the preliminary objection of Defendants
Breneman & Associates, Breneman, and Forer seeking a more specific
pleading with regard to facts supporting an award of punitive
damages, it appears to the Court that the allegations are
sufficiently clear to allow Defendants to prepare a proper defense.
Plaintiff has alleged that Defendant-Forer had knowledge, or reason
to know, of the termite infestation and was aware of the falsity of
the report prepared by Terminex, and that his failure to disclose
these items to Plaintiff was intentional and in bad faith.
Moreover, Plaintiff has alleged that Defendants-Breneman &
Associates and Breneman authorized, ratified, and approved of this
conduct. The process of discovery is an available resource for the
acquisition of more detailed information.
16
NO. 94-3099 CIVIL TERM
With respect to the preliminary objection of Defendants Glise,
Inc., Glise, and Jenakovich in the form of a motion to strike the
claims for punitive damages in Counts V, VI, and VII of Plaintiff's
Complaint for their legal insufficiency, the motion will be denied
on the same basis as the motion to strike of Defendants Breneman &
Associates, Breneman, and Forer. With regard to the motion of
Defendant Glise, Inc., Glise, and Jenakovich for a more specific
pleading with respect to the agency relationship between Plaintiff
and Defendant-Jenakovich, the Court believes that the allegations
in Plaintiff's complaint are sufficient. Plaintiff has averred
that Defendant-Jenakovich agreed to assist Plaintiff in finding and
purchasing a house, and that she showed Plaintiff the premises in
question, serving as Plaintiff's agent. It has been alleged that
she breached her duty to Plaintiff in failing to inquire of the
owners of the premises with regard to termite problems, failing to
disclose the termite problems with respect to the premises to
Plaintiff, and failing to recommend a home warranty plan to
Plaintiff. The Court is satisfied that these allegations are
sufficient to permit Defendants to prepare a proper defense. Any
further information required by Defendants can be obtained through
discovery.
With regard to the preliminary objections of Defendants-Hess
seeking a more specific pleading, based on the contention that
Plaintiff failed to plead special damages with sufficient
17
NO. 94-3099 CIVIL TERM
specificity, the Court does not believe that the contention is
meritorious. Plaintiff has averred that she paid $75,150.00 for
the property, and that, because of the damage caused by the on-
going infestation, the property no longer has any market value.
With regard to the expenses thus far incurred in attempting to
control the infestation and future expenses along those lines,
discovery should be sufficient to inform Defendants of the
potential liability involved. Therefore, the motion of Defendants-
Hess for a more specific pleading will be denied.
For the foregoing reasons, the following Order will be
entered:
ORDER OF COURT
AND NOW, this /~ day of April, 1995, after careful
consideration of Defendants' Preliminary Objections, as well as
briefs and oral arguments presented on the matter, it is ORDERED as
follows:
1. The Preliminary Objections of Defendants Ben Breneman &
Associates, Ben L. Breneman, and Lyle Forer are DENIED.
2. The Preliminary Objections of Defendants John Glise, Inc.,
John E. Glise, and Harriet Jenakovich are DENIED.
18
NO. 94-3099 CIVIL TERM
3. The Preliminary Objections of Defendants Stephen L. Hess
and Gail F. Hess are DENIED.
BY THE COURT,
J. Wesley Oler~Jr., J. "~/ ~
Taylor P. Andrews, Esq.
78 West Pomfret Street
Carlisle, PA 17013
Attorney for Plaintiff
James L. Goldsmith, Esq.
3631 N. 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
Joe Holtzinger
19
NO. 94-3099 CIVIL TERM
Carol A. Steinour, Esq.
P.O. Box 1166
Harrisburg, PA 17108-1166
Attorney for Defendant William D.
Schrack, III, Esq.
: rc
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