Judges Opinions Public Notices, — March 17, 2020 10:45 — 0 Comments

Public Notices – February , 19, 2020

Volume 57, No. 29

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

TRUST NOTICE

CHANGE OF NAMES

 

TABLE OF CONTENTS

Berks County Public Defender Job Opening

  1. Henry and Clare Yingst, v. Richard and Anna Mae Grimes, Brenda Miller, and Re/Max Cornerstone

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF RUTH N. FISHER, late of West Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Eugene F. Fisher, Jr., Executor

190 South Aspen Drive

Mount Joy, PA 17552

 

Karl Kreiser, Esquire

553 Locust Street

Columbia, PA 17512

 

ESTATE OF BONNIE L. WEST, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

John M. Gruber, Esquire, Executor

Russell, Krafft & Gruber, LLP

930 Red Rose Court, Suite 300

Lancaster, PA 17601

 

ESTATE OF FRANCES M. REINHARD, late of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Cynthia A. Felty, Co-Executrix

Marc A. Reinhard, Co-Executor

Loreen M. Burkett, Esquire

Weiss Burkett

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF DAVID M. ENGLEHART, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Malisa J. Rutt

1401 W. Main Street

Newmanstown, PA

 

Donna Long Brightbill, Attorney

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF RICHARD H. HEVERLING, JR., a/k/a RISHARD H. HEVERLING, late of Lebanon, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administratrix.

 

Renee Heverling, Administratrix

Loreen M. Burkett, Esquire

802 Walnut Street

Lebanon, PA 17042

 

ESTATE OF MILDRED M. HOUSER, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Marlene E. Deiss, Executrix

2 Laurel Drive

Myerstown, PA 17067

 

Kenneth C. Sandoe, Esquire

Steinder & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF DORIS M. HORST, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

JoAnn L. Roschel, Executrix

4 Fisher Terrace

Willow Street, PA 17584

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF HELEN G. SHAAK, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Shirley Hains, Executrix

Estate of Helen G. Shaak

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF PAULINE M. POPP, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Donald Popp, Executor

 

Keith D. Wagner, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF MANLEY L. LAYMAN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Larry Layman, Executor

133 East Patrick Road

Palmyra, PA 17078

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 East Main Street

Palmyra, PA 17078

 

ESTATE OF PATRICIA A. SCHOOLS, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Douglas G. Brandt, Co-Executor

1289 Mt. Wilson Road

Lebanon, PA 17042

 

Joan E. Smith, Co-Executrix

7 Ladderback Lane

Palmyra, PA 17078

 

Daryl J. Gerber, Esquire

The Law Office of Daryl J. Gerber

46 East Main Street

Palmyra, PA 17078

ESTATE OF JOYCE I. GRIMES, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lisa A. Filter, Executrix

Estate of Joyce I. Grimes

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF WALTER H. SPERAW, JR., late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Daniel J. Speraw, Executor

474 E. Main Street

Annville, PA 17003

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GLADYS L. LAUDERMILCH, a/k/a GLADYS LOCKWOOD LAUDERMILCH, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Glenn C. Laudermilch, Administrator

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF AUDREY FERN LENTZ, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Natalie Scicchitano, Executrix

Sean M. Pierson, Esquire

105 East Oregon Road

Lititz, PA 17543

 

 

 

 

 

 

ESTATE OF KENNETH R. OXENREIDER a/k/a KENNETH OXENREIDER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Dianna Schlegal, Executrix

Neal A. Rice, Esquire

Legacy Law, PLLC

15 N. Spruce Street

Lititz, PA 17543

 

ESTATE OF STARR M. SKISHALLEY, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Steven M. Skishalley, Administrator

Keith D. Wagner, Esquire

P.O. Box 323

Palmyra, PA 17078

 

ESTATE OF LINDA M. MARTZ, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Michael T. Heffelfinger, Co-Executor

Becky J. Diaz, Co-Executrix

Joseph J. Plunkett, Esquire

Plunkett & Graver, P.C.

2030 Tilgham Street

Suite 202

Allentown, PA 18104

 

SECOND PUBLICATION

 

ESTATE OF GEORGE W. FISHER, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David R. Fisher, Executor

Keith D. Wagner, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF VERNA V. SCHWARTZ, late of South Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David L. Schwartz, Executor

Keith D. Wagner, Esquire

PO Box 323

Palmyra, PA 17078

 

ESTATE OF VERNA M. KLAHR, late of North Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

Darvin N. Klahr, Co-Executor

Lonnie K. Klahr, Co-Executor

Melody R. Klahr, Co-Executor

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF JEANETTE LILLIAN EISENHAUER, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

William Eisenhauer, Executor

439 North 6th Street

Lebanon, PA 17046

 

Thomas S. Long, Esquire

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF GEORGE J. PITT, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Duane A. Pitt, Executor

George E, Christianson, Esquire

411 Chestnut Street

Lebanon, PA  17042

 

ESTATE OF GARY S. STAGER, late of the Township of Jackson, County of Lebanon and Commonwealth of Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Lori A. Breisch, Executrix

11 S. Butterfly Drive

Myerstown, PA  17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA  17067

 

THIRD PUBLICATION

 

ESTATE OF RICHARD A. GIBSON, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Executrix.

 

Inez R. Goldberg, Executrix

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF PETER WEATHERBY, late of the Borough of Palmyra, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Sandra D. Weatherby, Executrix

19 Juniper Street

Palmyra, PA 17078

 

John W. Purcell, Jr., Esquire

Purcell, Krug, & Haller

1719 North Front Street

Harrisburg, PA 17102

 

 

ESTATE OF LUCY A. PIETSCH a/k/a LUCY ANNA PIETSCH, late of Jackson Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David A. DiNunzio, Executor

907 Kiner Avenue

Lebanon, PA 17042

 

John D. Enck, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA   17042

 

ESTATE OF RONDA L. YINGST, late of North Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Charles M. Vonada, Executor

Kevin M. Richards, Esquire

PO Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF JUDITH MARIE HERMAN, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Earl W. Herman, Jr., Executor

308 Timber Blvd

Lebanon, PA 17042

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF MARY H. KRAUSE, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors.

 

John E. Krause, Co-Executor

14 Houston Drive

Mechanicsburg, PA 17050

 

Jean L. Bragg, Co-Executrix

28 Racehorse Drive

Jonestown, PA 17038

 

Paul W. Kilgore, Esquire

Spitler, Kilgore & Enck, PC

522 South 8th Street

Lebanon, PA 17042

 

ESTATE OF SAMUEL SELDOMRIDGE, late of the Borough of Richland, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Dennis J. Seldomridge, Executor

  1. O. Box 187

Richland, PA  17087

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF ALICE DARQUENNE HERBERT, late of Cornwall Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Elizabeth H. Hayward, Executrix

 

Estate of Alice Darquenne Herbert

Reilly Wolfson Law Office

1601 Cornwall Road

Lebanon, PA 17042

 

ESTATE OF GALEN L. BOYD, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executors

 

Mardell L. Knepper, Co-Executor

Brian L. Boyd, Co-Executor

 

Justin J. Bollinger, Esquire

Gibbel, Kraybill & Hess

PO Box 5349

Lancaster, PA 17606

 

TRUST NOTICE

 

Notice of the death of Rena Faye Kreiser, late of North Londonderry Township, Lebanon County, Pennsylvania, Settlor of the Wilbur C. Kreiser and Rena Faye Kreiser Revocable Living Trust, dates 10/5/01 and amended 8/24/13, is hereby given. All persons indebted to said Trust are requested to make prompt payment and those having claims to present the same, without delay to:

 

Successor Trustees: Daniel W. Kreiser, David W. Kreiser, & Diane K. Zorn

Care of David A. Peckman, Esquire

Peckman Chait LLP

29 Mainland Road

Harleysville, PA 19438

 

CHANGE OF NAMES

 

In the Court of Common Pleas of Lebanon County Pennsylvania, Civil Action – Law

No. 2020-00245 – Kevin Soviak Flagg and Katie Kennedy Flagg

No. 2020-00243 – E.K.F. A Minor

No. 2020-00244 – L.K.F. A Minor

 

NOTICE IS HEREBY GIVEN that on the 29th day of January, 2020, the Petitions for Change of Names of Kevin Soviak Flagg and Katie Kennedy Flagg, husband and wife, and by Petitions of Kevin Soviak Flagg and Katie Kennedy Flagg to change the names of minors L.K.F. and E.K.F. were filed in the above Court requesting an Order to change the names of: Kevin Soviak Flagg to

Kevin Flagg Kennedy;

Katie Kennedy Flagg to

Katie Brianne Kennedy;

L.K.F. to L.T.K; and

E.K.F. to E.M.K.

The Court has fixed the 2nd day of March, 2020, at 10:00 o’clock, a.m. before The Honorable Charles T. Jones, Jr. in Courtroom No. 4  of the Lebanon County Municipal Building, 400 South 8th Street, Lebanon, Pennsylvania, as the time and place for the Hearing of said Petitions, where any and all interested parties may appear and show cause, if any they have, why the request of Petitioner should not be granted.

 

Loren A. Schrum, Esq.

Michael C. Padasak, Esq.

Reilly Wolfson – 1601 Cornwall Road Lebanon, PA 17042

 

Berks County Public Defender Job Opening

 

 

Judges Opinion

 

  1. Henry and Clare Yingst, v. Richard and Anna Mae Grimes, Brenda Miller, and Re/Max Cornerstone

 

Civil Action-Law-Residential Real Estate-Sale-Fraudulent Misrepresentation-Mold-Motion for Summary Judgment-Integration Clause-Parole Evidence Rule

 

Plaintiffs (“Buyers”) purchased property owned by Defendants Richard and Anna Mae Grimes (“Sellers”) under an Agreement whereby Defendant Brenda Miller who was employed by Defendant Re/Max Cornerstone served as dual agent for Buyers and Sellers.  Buyers brought causes of action against Defendants based upon alleged failure to disclose knowledge of mold problems with regard to the property purchased.  Judgment on the Pleadings was granted on behalf of Sellers dismissing all causes of action against them.  Remaining Defendants filed a Motion for Summary Judgment against Buyers on the basis that Buyers cannot establish failure to disclose issues with mold based upon integration and release clauses in the Agreement of Sale.

 

  1. Any party may move for summary judgment whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense for trial.

 

  1. The elements of a cause of action in fraudulent misrepresentation are: (1) a representation; (2) that 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 upon it; (5) justifiable reliance upon the misrepresentation; and (6) the resulting injury proximately was caused by the reliance.

 

  1. In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive or commits a non-privileged failure to disclose.

 

  1. Where the parties to an agreement adopt a writing as the final and complete expression of their agreement, alleged prior or contemporaneous oral representations or agreements concerning subjects that specifically are covered by the written contract are merged in or superseded by that contract.

 

  1. An integration clause that states that a writing is meant to represent the parties’ entire agreement is a clear sign that the writing is meant to be just that and thereby expresses all of the parties’ negotiations, conversations and agreements made prior to its execution with the parole evidence rule rendering evidence of previous negotiations or agreements involving the same subject matter almost always inadmissible to explain or to alter the terms of the agreement.

 

  1. In LeDonne v. Kessler, 389 A.2d 1123 (Pa.Super. 1978), the Pennsylvania Superior Court found that in cases involving real estate inspections, the Court must balance the extent of the parties’ knowledge of objectionable conditions derived from a reasonable inspection of the property against the extent of coverage of the contract’s integration clause in order to determine whether that party justifiably could rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.

 

  1. A seller’s agent may enforce an integration clause and any other exculpatory provision in the written agreement between a seller and a buyer.

 

  1. In light of the fact that the Sellers’ Disclosure Statement indicated that a previous water intrusion had occurred and remediation work had been performed regarding the same, a home inspection report was provided to Buyers indicating that a substance appearing to be mold or mildew was observed and advising that a mold professional should be contacted to remove the substance and the Agreement of Sale included both integration and release clauses, Buyers had notice of the objectionable condition and the opportunity prior to execution of the Agreement to have their own inspection to include protective terms in the Agreement such that Buyers are precluded from introducing evidence of alleged representations outside of the Agreement to establish their causes of action.

 

L.C.C.C.P. No. 2015-02142, Opinion by Samuel A. Kline, Judge, May 28, 2019.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

P. HENRY AND CLARE YINGST,

 

Plaintiffs,

vs.

 

RICHARD AND ANNA MAE GRIMES, BRENDA MILLER, and RE/MAX CORNERSTONE,

 

Defendants.

:
:
:
:
:
:
:
:
:
:
 

 

 

 

 

No. 2015-02142

 

 

 

 

 

AND NOW, to wit, this 28th day of May, 2019, upon consideration of Defendants, Brenda Miller and Re/Max Cornerstone’s Motion for Summary Judgment, the parties’ briefs in support of their respective positions and the record of the case, the Motion is hereby GRANTED.  The case is hereby dismissed with prejudice.

 

 

BY THE COURT

 

_________________J.

SAMUEL A. KLINE

 

cc:           Robert N. Wilkey, Esq.

Eugene J. Maginnis, Jr., Esq.

Court Administration (order  only)

Law Clerk (order only)

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL DIVISION

P. HENRY AND CLARE YINGST,

 

Plaintiffs,

vs.

 

RICHARD AND ANNA MAE GRIMES, BRENDA MILLER, and RE/MAX CORNERSTONE,

 

Defendants.

:
:
:
:
:
:
:
:
:
:
 

 

 

 

 

No. 2015-02142

 

 

 

 

APPEARANCES:

Eugene J. Maginnis, Jr., Esquire  for Moving Defendants

Robert N. Wilkey, Esquire                             for Plaintiffs

OPINION, KLINE, J., MAY 28, 2019

Before the Court is Moving Defendants, Brenda Miller and Re/Max Cornerstone’s Motion for Summary Judgment.  For the reasons set forth herein, the Motion is hereby granted.

FACTS AND PROCEDURAL BACKGROUND

This matter arises out of the sale of the property located at 154 Stone Hedge Court, Lebanon, Pennsylvania 17042 (“the Property”).   Plaintiffs, P. Henry and Clare Yingst (“Buyers”) purchased the Property from Defendants, Richard and Anna Mae Grimes (“Sellers”), through Defendants, Brenda Miller and her then employer Re/Max Cornerstone (“Re/Max”) agency (collectively “Moving Defendants”).

Buyers first saw an advertisement for the Property in the summer of 2013 and contacted Miller as the agent listed for the property.  After subsequently viewing the Property with Miller, Buyers expressed interest in retaining their own agent.  Miller informed Buyers that she could act as a dual-agent for both Buyers and Sellers.  Thereafter, Buyers entered into a Buyer Agency Contract (“the Contract”) with Miller and Re/Max, acting as dual-agent for both Buyers and Sellers.

Upon a subsequent visit to the Property, Buyers discussed with Miller having a home inspection performed.  Buyers claim that Miller informed them that Sellers had recently had a home inspection performed and that they should not have their own home inspection completed.

Buyers received a Seller’s Disclosure Statement (“the Disclosure”), which was dated June 14, 2013 and signed by Sellers.  In the Disclosure, Sellers indicated that they were not aware of any mold in the property, but did disclose that in September of 2011, one foot of water had infiltrated the Property because the sump pump was not connected.  The Disclosure further provided that the water intrusion had been professionally repaired and a new sump pump was installed.

Sellers also provided to Buyers the Home Inspection Report dated July 19, 2013 (“the Home Inspection Report”), which indicated that “[a] substance that appears to be mold or mildew was observed” in the basement, and that a mold professional should be contacted.  Buyers contend that Miller made representations to them that the water intrusion problem had been properly repaired and that all problems identified in the Home Inspection Report had been fixed.  Furthermore, Buyers claim that they purchased the home based on the representations made by Miller to them.

The Buyers entered into an Agreement of Sale for the Property (“the Agreement”) on August 9, 2013.  Thereafter, Buyers took possession of the Property on November 19, 2013.  Buyers allege that they have suffered damages due to a mold issue that was not properly remediated by Sellers and the failure to properly remediate was not disclosed by Sellers, Miller or Re/max.

Two days after purchasing and taking possession the Property, Clare began experiencing breathing problems, upon which Buyers contacted Miller to inquire as to any cleaning solutions used on the carpets that might cause her symptoms.  Miller denied that Buyers had used any such cleaning solution.  Clare then sought emergency care.  After occupying the home for two weeks, Buyers relocated to Florida for the winter.  When they returned in March of 2014, Clare’s symptoms returned.  Buyers went to Clare’s PCP for diagnosis, but they were sent to a specialist who then diagnosed Clare with certain maladies attributed to mold exposure.  Buyers then contracted for mold and mildew remediation at the Property.

Buyers allege that Sellers and Moving Defendants failed to disclose material defects and negligently and/or fraudulently misrepresented problems with the Property.  Specifically, Buyers claim that Sellers failed to disclose their knowledge of any mold problem and that they failed to disclose that a water intrusion (which had been disclosed) was not properly repaired.

Buyers commenced this matter through Writ of Summons against all Defendants on December 3, 2015.  On December 7, 2016, Buyers filed their Complaint containing the following counts: Count I – Breach of Contract; Count II – Breach of Warranty of Fitness for a Particular Purpose; Count II – Negligent Misrepresentation; and Count IV – Fraudulent Misrepresentation.  After several Amended Complaints, Answers and New Matters and Preliminary Objections, we are now brought to the present position of the matter.  Buyers’ Second Amended Complaint, filed May 24, 2017, contains the following counts: Count I –Breach of Contract; Count II – Deceptive Conduct/Failure to Disclose Material Defects; Count III – Negligent Misrepresentation; and Count IV – Fraudulent Misrepresentation.  The claims set forth by Buyers are brought under the Real Estate Seller Disclosure Law, 68 Pa.C.S. § 7301 et seq. (“RESDL”) and the Pennsylvania Unfair Trade Practices and Consumer Protection Law, 73 P.S. § 201-1 et seq. (“UTPCPL”).  Included as exhibits to the Second Amended Complaint were the Seller’s Disclosure Statement and the Home Inspection Report.  Buyers are seeking $100,305.59 in damages, representing the cost for remediation efforts, as well as costs of suit.

On September 6, 2017, Sellers filed a Motion for Judgment on the Pleadings citing several grounds for judgment in their favor including the expiration of the statute of limitations applicable to Buyers’ action and a failure on the Buyers to state a claim upon which relief may be granted.  On March 21, 2018, we entered an Order and Opinion granting Sellers’ Motion for Judgment on the Pleadings and dismissed all causes of action against Sellers with prejudice.

On February 13, 2019, Moving Defendants filed a Motion for Summary Judgment contending that there are no genuine issues of material fact and that they are entitled to judgment as a matter of law.  Specifically, Moving Defendants refer to the integration clause, provisions regarding inspection and representations and the release clause included in the Agreement, which would preclude Buyers’ claims as waived.

The case was originally scheduled for the April 2019 Term of Argument Court, but upon motion, the matter was continued to the May 2019 Term of Argument Court.  Moving Defendants filed a brief with the Motion.  On May 6, 2019, Buyers filed their memorandum of law in opposition to the Motion.  The parties presented oral arguments before this court on May 10, 2019.  The matter is thus before this court and ripe for disposition.

 

 

 

DISCUSSION

The Pennsylvania Rules of Civil Procedure address motions for summary judgment and provide the following:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

 

(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.

Pa.R.C.P. No. 1035.2.  In considering a motion for summary judgment:

We view the record in the light most favorable to the nonmoving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law will summary judgment be entered.

Weber v. Weber, ___A.3d ___, No. 1095 WDA 2018 (Pa.Super. Apr. 26, 2019)(citation omitted).

Motions for summary judgment necessarily and directly implicate the plaintiff’s proof of the elements of [its] cause of action. Summary judgment is proper 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. Thus, a record that supports summary judgment will either (1) show the material facts are undisputed or (2) contain insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.

Renna v. PPL Elec. Utilities, Inc., ___A.3d___, No. 2040 EDA 2018 (Pa.Super. Mar. 29, 2019)(citation omitted).

Moving Defendants first argue that the integration clause contained in Section 22A of the Agreement precludes Buyers’ claims.  The integration clause provides;

All representations, claims, advertising, promotional activities, brochures or plans of any kind made by Seller, Brokers, their licensees, employees, officers or partners are not a part of this Agreement unless expressly incorporated or stated in this Agreement. This Agreement contains the whole agreement between Seller and Buyer, and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever concerning this sale. This Agreement will not be altered, amended, changed or modified except by writing executed by the parties.

Moving Defendants contend that if there were any representations that were material to the sale, then they would have been included in the Agreement as required.

Moving Defendants cite to the Pennsylvania Supreme Court’s decision in Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425 (Pa. 2004) for the principle that an integration clause precludes “evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract Id. at 498.  Relying on the Superior Court’s decision in Blumenstock v. Gibson, 811 A.2d 1029, 1032 (Pa.Super. 2002), Moving Defendants argue that because Buyers were aware of the prior water intrusion and the potential mold issues prior to execution of the Agreement, they cannot now justifiably rely on any prior alleged representations to vary the Agreement through parol evidence.

Moving Defendants next argue that the Agreement provided Buyers the opportunity to have an inspection performed prior to the execution of the Agreement, but they failed to do so.  Paragraph 22B of the Agreement provides that:

Unless otherwise stated in this Agreement, Buyer has inspected the Property (including fixtures and any personal property specifically listed herein) before signing this Agreement or has waived the right to do so, and agrees to purchase the Property IN ITS PRESENT CONDITION, subject to inspection contingencies elected in this Agreement. Buyer acknowledges that Brokers, their licenses, employees, officers or partners have not made an independent examination or determination of the structural soundness of the Property, the age or condition of the components, environmental conditions, the permitted uses, nor of conditions existing in the locale where the Property is situated; nor have they made a mechanical inspection of any of the systems contained therein.

Moving Defendants argue that Buyers had notice of prior water intrusion from the Seller’s Disclosure and knowledge of a potential mold issue from the Home Inspection Report, but yet proceeded without any further inspections or requiring that any purported assurances be added to the Agreement.  Moving Defendants maintain that Buyers now seek to hold other parties responsible for their own decisions.

Finally, Moving Defendants maintain that the Agreement provides a release to Moving Defendants for any personal injury arising from conditions of the Property.  Paragraph 25 of the Agreement provides that:

Buyer release, quit claims and forever discharges SELLER, ALL BROKERS, their LICENSEES, EMPLOYEES, and any OFFICER or PARTNER of any one of them and any other PERSON, FIRM or CORPORATION who may be liable by and through them, from any and all claims, losses or demands, including, but not limited to, personal injury and property damage . . .  or any defects or conditions of the Property. . . .  This release will survive settlement.

 

 

Buyers respond that they have adequately raised an issue of material fact.  Buyers again allege that Moving Defendants “fraudulently and falsely represented their ability to effectuate the sell [sic] of the subject property in good fair [sic] and in a fair, open, and transparent manner.” (Plt.’s Memo. at 9).

Buyers again refer to the Seller’s Disclosure, alleging that the Disclosure was “blatantly false, misleading, and otherwise wrought with fraud. (Plt.’s Memo. at 9).  Buyers contend that the Seller’s Disclosure failed to identify any past drainage or flooding problems, mold issues or any efforts to remediate mold issues at the Property and only acknowledged a single water infiltration incident.  Insomuch as the Seller’s Disclosure lacked mention of any such issues, Buyers argue that Moving Defendants failed to provide reasonable notice, disclosure or information of “the presence of chronic, persistent and toxic mold” on the Property. Id.

Buyers then claim that, upon obtaining the Home Inspection Report, and the information regarding possible mold issues contained therein, Moving Defendants had a duty to modify the Seller’s Disclosure in order to include the newly discovered information.  Buyers further allege that in response to the Home Inspection Report, Moving Defendants continued to perpetuate fraud by falsely misrepresenting that the mold/mildew issues had been remediated and that Sellers had made repairs to the basement, installed a new sump pump and dehumidifiers.  Buyers insist that they purchased the Property in reliance upon Moving Defendants’ misrepresentations and that because of such fraudulent inducement.

In relation to their claims sounding in breach of contract, Buyers argue that Moving Defendants failed to contractually act in good faith and fair dealing through the lack of transparency as to the mold issues present on the Property.  Buyers claim that the Agency Contract, which they entered into with Moving Defendants, prohibited Miller to continue her role as a dual-agent when a conflict of interest exists.  Buyers contend that such a conflict of interest existed when Miller could not act with transparency in disclosing the mold issue and in misrepresenting that any issues of mold or water infiltration had been properly remediated.

The underlying allegation serving as the basis for all of Buyers’ causes of action is the claim that they were induced into purchasing the Property through the fraudulent misrepresentations of Moving Defendants and Sellers.  The elements of a cause of action in fraudulent misrepresentation are: “(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.” Gibbs v. Ernst, 538 Pa. 193, 207, 647 A.2d 882, 889 (Pa. 1994)(citing Restatement (Second) of Torts § 525 (1977)).

“Under Pennsylvania law, claims of fraud require proof by clear and convincing evidence.” Ries v. Curtis, CIV.A. 13-1400, 2014 WL 5364972, at *12 (E.D. Pa. Oct. 22, 2014), aff’d, 664 Fed.Appx. 206 (3d Cir. 2016).  Additionally, “[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.” Sevin v. Kelshaw, 611 A.2d 1232, 1237 (Pa.Super. 1992)

Merely asserting that a statement was “fraudulent” and that reliance on the statement induced some action of the party’s behalf is insufficient. Blumenstock v. Gibson, 811 A.2d 1029, 1038 (Pa.Super. 2002).  It is likewise insufficient “to aver that a knowingly false statement was made for the purpose of misleading another into reliance upon it.” Id.  In order for fraud to be found, the party must demonstrate that they “justifiably relied on the false statement.” Id.  Absent such a showing, Buyers cannot prove fraud.

In real estate transactions, fraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.

Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539, 545 (Pa.Super. 2005).

Fraud may be alleged in two distinct situations.  The first, fraud in the execution, alleges that certain prior or contemporaneous representations regarding the terms of an agreement to which the parties agreed would be included in the agreement are thereafter omitted from the executed agreement by fraud, accident or mistake. 1726 Cherry St. P’ship by 1726 Cherry St. Corp. v. Bell Atl. Properties, Inc., 653 A.2d 663, 666 (Pa.Super. 1995).  Fraud in the inducement, however, is alleged “where the party proffering evidence of additional prior representations does not contend that the parties agreed that the additional representations would be in the written agreement, but rather claims that the representations were fraudulently made and that but for them, he or she never would have entered into the agreement.” Id.

Where, as in the instant matter, “the parties to an agreement adopt a writing as the final and complete expression of their agreement, alleged prior or contemporaneous oral representations or agreements concerning subjects that are specifically covered by the written contract are merged in or superseded by that contract.” Blumenstock, 811 A.2d at 1035.  In order to make such a determination:

the writing must be looked at and if it appears to be a contract complete within itself, couched in such terms as import a complete legal obligation without any uncertainty as to the object or extent of the [parties’] engagement, it is conclusively presumed that [the writing represents] the whole engagement of the parties. An integration clause which states that a writing is meant to represent the parties’ entire agreement is also a clear sign that the writing is meant to be just that and thereby expresses all of the parties’ negotiations, conversations, and agreements made prior to its execution.

Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004).  Upon such a finding, “the parol evidence rule applies and evidence of any previous oral or written negotiations or agreements involving the same subject matter as the contract is almost always inadmissible to explain or vary the terms of the contract.” Id. at 436-437.

The Superior Court in Blumenstock addressed an issue very similar to that of the matter sub judice.  In that matter the buyers allege that they voiced concern regarding the fact that the property had two sum pumps and that the real estate agent informed the buyers that the two sump pumps were installed merely as  a precaution. Blumenstock, 811 A.2d at 1032.  Buyers understood the statement to mean that the sump pumps “were unnecessary and never ran” and alleged that they relied on the agent’s statement in the subsequent purchase of the property. Id.  The agreement of sale included an integration clause, a specific release clause and an exculpatory clause. Id. at 1035.  After moving into the property, the circuit breaker to the sump pumps shut off and the basement flooded causing damage to personal property. Id. at 1032-1033.

The buyers filed a complaint alleging causes of action in breach of contract, fraud and fraud-based violations of the RESDL and UTPCPL against the sellers, as well as fraud and fraud-based violations of the RESDL and UTPCPL against the real estate agent. Id. at 1033.  Both the sellers and the real estate agent filed motions for summary judgment, which the trial court granted. Id.  The buyers appealed the trial court’s decision.

In reviewing the matter, the Superior Court first examined the distinction between fraud in the execution and fraud in the inducement.  The Court then reiterated that “[t]he general rule is that where the alleged oral representations concern a subject which is specifically addressed in the written contract, and the written contract covers or purports to cover the entire agreement of the parties, mere allegations of falsity or fraud will not make parol evidence admissible.” Id. at 1036.  The Court further set forth that:

Pennsylvania case law makes a distinction between barring parol evidence to vary the terms of the agreement and admitting parol evidence to prove fraud in the inducement. In the latter case, the theory holds that since fraud induced the agreement, no valid agreement came into being and parol evidence is admissible to show that the alleged agreement is void. Nevertheless, the case law clearly holds that a party cannot justifiably rely upon prior oral representations yet sign a contract denying the existence of those representations. An exception to this general formulation of the impact of the parol evidence rule has been created and followed by the so-called “real estate inspection cases,” i.e., LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978), and its progeny.

Id.  The LeDonne test “requires a balancing of the extent of the parties’ 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 that party could justifiably rely upon oral representations without insisting upon further contractual protection or the deletion of an overly broad integration clause.” Id. at 1037.

The buyers alleged that the trial court failed to perform the appropriate balancing test pursuant to LeDonne to determine whether a reasonable inspection of the property would have placed the buyers on notice of the objectionable condition.  The Superior Court found that the trial court had indeed properly utilized the balancing test when it weighed the buyers’ opportunity to observe the physical conditions of the property, including the sump pumps, against the terms of the integrations and release clauses of the agreement of sale and deemed evidence of any oral representations impermissible. Id. at 1037-1038.

The buyers also argued that the trial court improperly allowed the real estate   agent to avail themselves of provisions of the agreement of sale because they were not a party to the agreement.  The Superior Court, relying on the decision in Bowman v. Meadow Ridge, Inc., 516, 615 A.2d 755 (Pa.Super. 1992), rejected the buyers’ claim stating that “[t]he law of Pennsylvania presently holds that a seller’s agent may enforce the integration clause and any other exculpatory provision in the written agreement between a seller and a buyer.” Id. at 1038.

As we stated, the Blumenstock case is very similar to the present matter.  Buyers have alleged that they justifiably relied upon the alleged fraudulent statements of Miller in the purchase of the Property.  Therefore, we must likewise engage the LeDonne balancing test in order to determine whether evidence of any alleged prior representations of Miller may be introduced or whether such is prohibited by the parol evidence rule.

While the Seller’s Disclosure Statement denied that Sellers had any knowledge of a mold or mildew issue, it did indicate that a previous water intrusion had occurred and remediation work was performed following the incident.  After Buyers received the Seller’s Disclosure Statement, they were provided a copy of the Home Inspection Report, which provided that a substance appearing to be mold or mildew was observed and that a mold professional should be contacted and the suspected substance should be removed.  Buyers allege that Miller stated that remediation had been made.

We find Buyers’ arguments to be unavailing.  Though they did not personally observe the mold, the Home Inspection Report provided Buyers sufficient notice of the objectionable condition in order to either have their own inspection performed (despite whether Miller told them they didn’t need to) or to insist that the Agreement provide contractual protection against the potential mold problem.

The Agreement includes both an integration clause and a release clause.  The integration clause provides that “[a]ll representations, claims . . . made by Seller, Brokers . . . are not part of this Agreement unless expressly incorporated or stated” and that “there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise, of any kind whatsoever concerning this sale.” (Def.’s Mot. for Summ. J., Appendix at 32a).  The release clause “discharges SELLER [and] ALL BROKERS . . . who may be liable . . . from any and all claims, losses or demands, including, but not limited to, personal injury and property damage . . . whether known or not, which may arise from the presence of . . . mold, fungi or indoor air quality . .  or any defects or conditions on the Property.” (Def.’s Mot. for Summ. J., Appendix at 33a).  Finally, the Agreement provided that “Unless otherwise stated in this Agreement, Buyer has inspected the Property . . . before signing this Agreement or has waived the right to do so, and agrees to purchase the Property IN ITS PRESENT CONDITION, subject to inspection contingencies elected in this Agreement.” (Def.’s Mot. for Summ. J., Appendix at 32a).  The language of the Agreement is clear and unambiguous.

The balancing test tilts in favor of Moving Defendants and therefore, Buyers are precluded from pushing our view beyond the terms of the Agreement in order to introduce alleged representations of Miller.  Buyers had notice of the objectionable condition and the opportunity prior to execution of the Agreement to have their own inspection performed, to include protective terms in the Agreement or to simply walk away from the Property.  Viewing the record in the light most favorable to Buyers as the non-moving party, we find that Buyers have failed to adduce sufficient facts essential to their causes of action.  Therefore, we conclude that summary judgment in Moving Defendants’ favor is appropriate.  We will enter an order consistent with the foregoing.

 

About the author

Lebanon County Legal Journal has written 669 articles for Lebanon County Legal Journal

Search