HomeMy WebLinkAbout93-2714 Civil DAVID MELVILLE HUTTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
v. : CIVIL ACTION - LAW
:
RUTH W. McELWEE and :
CENTURY 21 BRENEMAN & ASSOC., :
Defendants : NO. 2714 CIVIL 1993
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
CENTURY 21 BRENEMAN & ASSOC.
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
ORDER OF COURT
AND NOW, this ~%%ay of January, 1994, upon consideration of
the preliminary objections of Defendant Century 21 Breneman &
Assoc. to Plaintiff's complaint, and for the reasons stated in the
accompanying Opinion, the preliminary objections are DENIED.
Defendant is GRANTED 20 days within which to file an answer to
Plaintiff's complaint.
BY THE COURT,
Wesley O~e .
Theodore A. Adler, Esq.
John J. McNally, III, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Plaintiff
Francis E. Marshall, Jr., Esq.
Charles E. Haddick, Jr., Esq.
10 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendant Century 21
Breneman & Associates
: rc
DAVID MELVILLE HUTTON, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION - LAW
:
RUTH W. McELWEE and :
CENTURY 21 BRENEMAN & ASSOC., :
Defendants : NO. 2714 CIVIL 1993
IN RE: PRELIMINARY OBJECTIONS OF DEFENDANT
CENTURY 21 BRENEMAN & ASSOC.
BEFORE SHEELY, P.J., HOFFER and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J.
This case arises out of Plaintiff's purchase of a lot from
Defendant McElwee, whose realtor was Defendant Century 21 Breneman
Assoc., and Plaintiff's subsequent discovery that the lot could not
pass a perk test. For disposition at this time are preliminary
objections of Defendant Century 21 to Plaintiff's complaint. For
the reasons stated in this Opinion, the preliminary objections will
be denied.
Statement of Facts
According to Plaintiff's complaint, Plaintiff as buyer and
Defendant McElwee as seller entered into an agreement of sale with
respect to a certain unimproved lot in West Pennsboro Township,
Cumberland County, Pennsylvania.~ The agreement was dated December
16, 1991;2 the purchase price was $25,000;3 and Defendant Century
~ Plaintiff's Complaint, paragraph 5.
2 Plaintiff's Complaint, paragraph 5. Seller's approval of
the contract, however, is dated December 17, 1991. Id.
3 Plaintiff's Complaint, Exhibit A.
No. 2714 Civil 1993
21 served as seller's agent in the transaction and drafted the
agreement.4
Plaintiff further alleges that the agreement provided that the
sale was "contingent upon approval of existing perk test results,"5
that both defendants knew of Plaintiff's intention to build a home
upon the lot,~ and that "[a]t all times prior to settlement,
McElwee, through her agent Breneman, represented that a valid on-
lot septic permit for the lot had been issued and was 'ready to be
picked up' at the township office."? It is also alleged that "[o]n
December 17, 1991, McElwee, through her agent [Century 21]
Breneman, unilaterally changed the terms of [the written agreement]
to provide, inter alia, 'This sale (is) contingent upon satisfac-
tory perk test to be paid by buyer.'''8
Settlement, according to Plaintiff, took place on January 13,
1992.9 He obtained a construction loan on March 3, 1992,~° but when
he and the builder attempted to secure a building permit it
Plaintiff's Complaint, paragraphs 6, 37.
Plaintiff's Complaint, paragraph 8.
Plaintiff's Complaint, paragraph 10.
Plaintiff's Complaint, paragraph 13.
Plaintiff's Complaint, paragraph 9.
Plaintiff's Complaint, paragraph 11.
Plaintiff's Complaint, paragraph 14.
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No. 2714 Civil 1993
developed that no valid on-lot septic permit existed.~ Such a
permit, it is averred, has proven unobtainable because the lot
"will not 'perk' in accord with the regulations under the Sewage
Facilities Act. "~2
Plaintiff alleges that the lot in question is not served by
public water or sewer.~3 The agreement of sale attached to the
complaint includes the following provisions:
7. STATUS OF WATER AND SEWER: Seller warrants that this property
is serviced by water and sewer. Further, Seller
warrants that these systems are fully paid for and, as of the date
of this agreement are in satisfactory operating condition. If
aforesaid systems are private, Seller warrants that he/she has no
information that public water and/or sewer will be assessed or
installed for at least six (6) months after the date of settlement
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16. REPRESENTATIONS: It is understood that Buyer has inspected
the property, or hereby waives the right to do so and he/she has
agreed to purchase it as a result of such inspection and not
because of or in reliance upon any representation made by the
Seller or any other officer, partner or employee of Seller, or by
the agent of Seller or any of the latter's salespersons and
employees, ... and that he/she has agreed to purchase it in its
present condition unless otherwise specified herein and further
acknowledges that the aforementioned parties are not qualified to
render an opinion on construction, engineering, or environmental
matters and that the buyer has been advised that he/she may require
or wish to seek the assistance of experts in those fields. It is
further understood that this Agreement contains the whole agreement
between the Seller and Buyer and there are no other terms,
obligations, covenants, representations, statements or conditions,
Plaintiff's Complaint, paragraph 15.
Plaintiff's Complaint, paragraph 17.
Plaintiff's Complaint, paragraph 16.
Plaintiff's Complaint, Exhibit A.
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No. 2714 Civil 1993
oral or otherwise of any kind whatsoever concerning this sale .... ~s
23. AGREEMENT: THIS AGREEMENT CONTAINS THE WHOLE AGREEMENT
BETWEEN THE SELLER AND BUYER. THERE ARE NO OTHER TERMS,
OBLIGATIONS, COVENANTS, REPRESENTATIONS, STATEMENTS OR CONDITIONS,
ORAL OR OTHERWISE, OF ANY KIND WHATSOEVER CONCERNING THIS SALE,
EXCEPT AS ATTACHED TO THIS CONTRACT.~6
Among the averments of Plaintiff's complaint are allegations
that the agreement failed to include information as to the lot's
sewage status as mandated by the Pennsylvania Sewage Facilities
Act.~? It is further averred that Defendant Century 21 drafted the
aforesaid unilateral change in the agreement, regarding a perk
test,~8 and then compounded Plaintiff's confusion on the subject by
reiterating at settlement its representation that an on-lot septic
permit was available.~9
Plaintiff seeks damages from Defendant Century 21 on the basis
of misrepresentation2° and violation of Pennsylvania's Unfair Trade
Practices and Consumer Protection Law.2z Defendant Century 21 has
interposed preliminary objections to the complaint in the form of
Plaintiff's Complaint, Exhibit A.
Plaintiff's Complaint, Exhibit A.
Act of January 24, 1966, P.L. (1965) 1535, 35 P.S. §§750.1
et seq.; Plaintiff's Complaint, paragraphs 39-41.
Plaintiff's Complaint, paragraph 46.
Plaintiff's Complaint, paragraph 48.
20 Plaintiff's Complaint, Count IV.
Plaintiff's Complaint, Count V; see Act of December 17,
1968, P.L. 1224, as reenacted and amended, 73 P.S. S§201-1 et seq.
4
No. 2714 Civil 1993
(a) a demurrer to both claims based upon a theory of contractual
22
waiver, (b) a motion to strike the paragraph of the complaint
alleging a unilateral alteration of the agreement, based upon a
version of the agreement differing from that appended to
Plaintiff's complaint, displaying Plaintiff's initials next to the
change,23 (c) a demurrer to the claim of violation of the Unfair
Trade Practices and Consumer Protection Law, premised upon the
striking of the aforesaid paragraph,24 (d) a motion to strike
certain paragraphs of the complaint referring to the agreement's
alleged noncompliance with disclosure requirements under the
Pennsylvania Sewage Facilities Act, based upon the theory that a
private right of action against a realtor is not provided for in
the act,2s (e) a demurrer to the claim of misrepresentation,
premised upon the striking of the said paragraphs,26 and (f) a
motion for a more specific pleading as to the said paragraphs.27
Preliminary Objections of Defendant Century 21, paragraphs
7-12.
23 Preliminary Objections of Defendant Century 21, paragraphs
13-20.
24 Preliminary Objections of Defendant Century 21, paragraphs
13-20.
2s Preliminary Objections of Defendant Century 21, paragraphs
21-25.
2~ Preliminary Objections of Defendant Century 21, paragraphs
21-25.
27 Preliminary Objections of Defendant Century 21, paragraphs
26-32.
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No. 2714 Civil 1993
Statement of Law
Demurrers. With respect to a demurrer, it has been said that
"[a] demurrer admits all well-pleaded material facts in the
pleading which it attacks, as well as all inferences which may
reasonably be deduced therefrom." International Association of
Firefighters v. Loftus, 80 Pa. Commw. 329, 333, 471 A.2d 605, 607
(1984). "Preliminary objections in the nature of a demurrer ...
will be sustained only when it appears with certainty that the law
permits no recovery under the facts pled, and any doubts in the
determination should be resolved by overruling the objections."
Paone v. City of Scranton, 9 Pa. C. & C.4th 115, 117 (Montgomery
Co. 1991); see Department of Transportation v. Bethlehem Steel
Corp., 33 Pa. Commw. 1, 11, 380 A.2d 1308, 1313 (1977).
"If any part of a pleading states a sufficient cause of
action, the demurrer to the pleading must be overruled." 2
Anderson, Pennsylvania Civil Practice §1017.180, at 579 (1976).
In ruling on a demurrer, a court may consider "[o]nly such
matters as arise out of [the challenged] pleading itself ..., and
the decision must be on the pleading alone. Therefore collateral
matters may not be considered in ruling on a demurrer." 2 Goodrich
Amram 2d ~1017(b):29, at 276 (1991); see Pa. R.C.P. 1028, Committee
note. "A demurrer which supplies facts not in the record is known
as a 'speaking demurrer,' which is condemned." 2 Goodrich Amram 2d
§1017(b):29, at 275 (1991).
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No. 2714 Civil 1993
Motions to strike. With respect to a motion to strike, it has
been said that such a motion is limited to errors of form, and "may
be based on ... a pleading's failure to conform to law or a rule of
court, or on the inclusion ... of scandalous or impertinent
matter." 2 Goodrich Amram 2d ~1017(b):ll, at 253-54 (1991); see
Pa. R.C.P. 126. Consistent with this general rule, impertinent
matter that is not prejudicial may be treated as "mere surplusage
and ignored." 2 Goodrich Amram 2d ~1017(b):16, at 261 (1991).
Motions for a more specific pleadinq. With respect to a
motion for a more specific pleading, it has been said that such a
motion is designed "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 2d §25:57, at 167 (1993). The
motion 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 ... [and where] the objecting party seeks the pleading
of evidence .... ,,28 "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
28 5 Standard Pennsylvania Practice 2d ~25:60, at 170-71
(1993).
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No. 2714 Civil 1993
.... " 2 Goodrich Amram 2d ~1017(b):24, at 268 (1991).
Waiver of claim due to inteqration clause in contract. With
respect to waiver of an issue as to misrepresentation by a seller's
realtor by means of a buyer's disclaimer in an integration clause
in a sales agreement, several principles of law are pertinent.
First, as a general rule "[a]n agent ... may be liable to an
injured third party for his own deceit in a transaction on behalf
of his principal." Roberts v. Estate of Barbagallo, 366 Pa. Super.
559, 569, 531 A.2d 1125, 1130 (1987). A seller's realtor who
intentionally fails to disclose material information to a buyer
with respect to the transaction may be found liable to the buyer
following settlement. Id.
Second, under certain circumstances an integration clause in
an agreement of sale will serve to insulate a seller's realtor from
liability upon a claim of misrepresentation. Bowman v. Meadow
Ridge, Inc., 419 Pa. Super. 511, 615 A.2d 755 (1992). Thus, in
Bowman a clause in an agreement of sale providing that "Buyer has
not relied upon any representation ... of any kind made by Seller
or Seller's agent [or] employees unless expressly incorporated or
stated in this Agreement" was held to warrant dismissal of the
buyer's complaint against seller's realtor for an alleged
misrepresentation as to the prices involved in comparable sales.
Id.
Third, under other circumstances such a clause will not defeat
No. 2714 Civil 1993
such an action. Myers v. McHenry, 398 Pa. Super. 100, 580 A.2d 860
(1990). Thus, in Myers a similar clause was held not to warrant
entry of summary judgment in favor of sellers' realtor on a claim
by buyers based upon an alleged misrepresentation as to the
availability of a water flow test. The issue in such cases was
expressed by the Court as follows:
Where buyers allege that they were
fraudulently induced to purchase a property
through fraud or misrepresentation, the
applicability of the parol evidence rule is
determined by balancing "the extent of the
party's knowledge of objectionable conditions
derived from a reasonable inspection against
the extent of the coverage of the contract's
integration clause in order to determine
whether the party could justifiably rely upon
oral representations without insisting upon
further contractual protection or the deletion
of an overly broad integration clause."
LeDonne [v. Kessler], 256 Pa. Super. [280,]
294, 389 A.2d [1123,] 1130 [1978].
Myers v. McHenry, 398 Pa. Super. 100, 107, 580 A.2d 860, 864
(1990).
Fourth, the parol evidence rule, upon which these cases turn,
"makes prior or contemporaneous representations ... inadmissible to
vary a complete, written agreement." Jenkins, Pennsylvania Trial
Evidence Handbook ~11.1, at 211 (1974). It does not apply to
representations made subsequent to the written agreement. McBride
v. Davis, 266 Pa. Super. 125, 403 A.2d 125 (1979); see Myers v.
McHenry, 398 Pa. Super. 100, 580 A.2d 860 (1990).
Pennsylvania Sewaqe Facilities Act. With respect to the
No. 2714 Civil 1993
Pennsylvania Sewage Facilities Act, it is provided in the statute
as follows:
Every contract for the sale of a lot as
defined in [the act] for which there is no
currently existing community sewage system
available shall contain a statement in the
contract clearly indicating to the buyer that
there is no community sewage system available
and that a permit for an individual sewage
system will have to be obtained pursuant to
[the act]. The contract shall also clearly
state that the buyer should contact the local
agency charged with administering this act
before signing the contract to determine the
procedure and requirements for obtaining a
permit for an individual sewage system if one
has not already been obtained.
Act of January 24, 1966, P.L. (1965) 1535, §7.1(a), as added, 35
P.S. ~750.7a(a). Under the act, "[a]ny contract for the sale of a
lot which does not conform to [the above-quoted provision] shall
not be enforceable by the seller against the buyer." Id., ~7.1(b),
as added, 35 P.S. ~750.7a(b).
Unfair Trade Practices and Consumer Protection Law. Finally,
with respect to conduct constituting a violation of Pennsylvania's
Unfair Trade Practices and Consumer Protection Law, it may be noted
that among the types of conduct classified as unfair or deceptive
acts or practices are "[c]ausing likelihood of confusion or of
misunderstanding as to the ... approval or certification of goods
or services, .... [c]ausing likelihood of confusion or of misunder-
standing as to ... certification by ... another," and
"[r]epresenting that goods or services have ... approval ... that
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No. 2714 Civil 1993
they do not have .... " Act of December 17, 1968, P.L. 1224,
~2(4)(ii), (iii), (v), as reenacted and amended, 73 P.S. §201-
2(4)(ii), (iii), (v).
Application of Law to Facts
An application of the foregoing principles of law to the facts
of the present case leads to a conclusion that the preliminary
objections of Defendant Century 21 can not be sustained. First, as
to Defendant's demurrer to both claims on the theory of contractual
waiver, the record is not sufficiently complete to permit a
balancing of the extent of Plaintiff's knowledge against the extent
of the coverage of the agreement's integration clause in order to
determine whether Plaintiff could have justifiably relied upon the
realtor's alleged oral representation. In addition, the
representation is alleged to have been repeated at settlement -
i.e., subsequent to the written agreement in question - rendering
the parol evidence rule at least partly inapplicable.
Second, as to Defendant's motion to strike the paragraph of
Plaintiff's complaint alleging a unilateral alteration of the
agreement of sale, and the associated demurrer to Plaintiff's claim
under the Unfair Trade Practices and Consumer Protection Law -- both
premised upon a version of the agreement of sale different from
that appended to Plaintiff's complaint - the motion is not being
utilized properly and the demurrer is a speaking demurrer.
Third, as to Defendant's motion to strike certain paragraphs
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No. 2714 Civil 1993
of Plaintiff's complaint referring to the Pennsylvania Sewage
Facilities Act, and the associated demurrer to Plaintiff's claim
for misrepresentation, a review of the complaint indicates that the
references are merely supportive of, and incidental to, the
allegedly misleading nature of the realtor's conduct. They do not
represent an independent cause of action against a realtor under
the Sewage Facilities Act, and a dismissal of Plaintiff's
misrepresentation claim based upon a deletion of these references
would violate the rule that if any part of a pleading states a
sufficient cause of action a demurrer to the pleading must be
overruled.
Finally, as to Defendant's motion for a more specific
pleading, it is believed that the Defendant has at least as much
knowledge of the subject matter of the paragraphs complained of as
has Plaintiff, and that if more information is needed it can be
obtained through the discovery process.
For these reasons, the following Order will be entered:TM
ORDER OF COURT
AND NOW, this ~day of January, 1994, upon consideration of
the preliminary objections of Defendant Century 21 Breneman &
Assoc. to Plaintiff's complaint, and for the reasons stated in the
accompanying Opinion, the preliminary objections are DENIED.
29 Nothing in this Order or Opinion is intended to indicate
an opinion of the Court as to the factual merits of Plaintiff's
claims.
12
No. 2714 Civil 1993
Defendant is GRANTED 20 days within which to file an answer to
Plaintiff's complaint.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Theodore A. Adler, Esq.
John J. McNally, III, Esq.
2331 Market Street
Camp Hill, PA 17011
Attorney for Plaintiff
Francis E. Marshall, Jr., Esq.
Charles E. Haddick, Jr., Esq.
10 West Pomfret Street
Carlisle, PA 17013
Attorney for Defendant Century 21
Breneman & Associates
:rc
13