Broeg v. Pivovar

80 Pa. D. & C.4th 569
Pennsylvania Court of Common Pleas, Monroe County·Decided June 9, 2006·No. no. 9022 Civil 2005·Published

Opinion

CHESLOCK, J.

This matter once again comes to the court on defendant Wilkins and Associates Real Estate Inc.’s preliminary objections. Defendant objects to plaintiff James Broeg’s amended complaint. On November 14, 2005, the plaintiff filed a complaint against the defendants, Peter Pivovar (seller), Wilkins and Associates Real Estate Inc. and Anderson and Associates LLC, concerning a real estate transaction. The plaintiff averred that the seller failed to answer questions on whether the property sold to him was located in a flood zone or had flooding or drainage problems which affected the property. On February 22,2006, we sustained the defendant’s preliminary objections and granted plain[571]*571tiff leave to amend the complaint in a manner consistent with that opinion. Thereafter, on March 10, 2006, the plaintiff filed an amended complaint. On April 11,2006, the defendant filed preliminary objections to the amended complaint as well as a praecipe for oral argument. This court heard oral argument June 5,2006 and we are now prepared to rule on this matter.

Pennsylvania Rules of Civil Procedure 1028(a)(3)(4) state in pertinent part as follows:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

“(3) insufficient specificity in a pleading;

“(4) legal insufficiency of a pleading (demurrer);...

“(b) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading.”

Preliminary objections asserting that a complaint fails to state a cause of action upon which relief can be granted is in the nature of a demurrer. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). It is well established that preliminary objections in the nature of a demurrer admit as true all facts that are well pleaded allegations, including reasonable inferences deducible therefrom. Sweatt v. Department of Corrections, 769 A.2d 574 (Pa. Commw. 2001). In assessing preliminary objections in the nature of a demurrer, the court should sustain a dermurrer and dismiss a complaint only in cases which are free and clear from doubt. Leach v. Hough, 352 Pa. Super. 213, 507 A.2d 848 (1986). Where a doubt exists [572]*572as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Emerich v. Philadelphia Center for Human Development, 554 Pa. 209, 720 A.2d 1032(1998).

In its preliminary objections, defendant alleges that plaintiff’s claim for negligent misrepresentation is legally insufficient in that it fails to set forth the necessary elements for a cause of action. In order to successfully allege negligent misrepresentation, the following elements must be satisfied:

“(1) a misrepresentation of a material fact;

“(2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under the circumstances in which he ought to have known of its falsity;

“(3) the representor must intend the representation to induce another to act on it; and

“(4) injury must result to the party acting in justifiable reliance on the misrepresentation.” Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 890 (1994). (citation omitted)

In this matter, the defendant claims that the plaintiff has failed to state a cause of action for negligence and/or negligent misrepresentation against it in his amended complaint. In reviewing the plaintiff’s amended complaint, we find that the plaintiff avers that the seller utilized the services of the defendant as his agent in the real estate transaction. The plaintiff avers that the defendant assisted the seller in preparing the seller’s disclosure statement and as such had a duty to deal fairly with the pur[573]*573chasers and insure that the seller fulfilled his duty under the Real Estate Seller’s Disclosure Law by disclosing material defects in the property. Furthermore, the plaintiff alleges that defendant breached its duty by leaving substantial obvious and material portions of the document unanswered or blank, which it knew or should have known of the falsity of the incomplete, incorrect or misleading information.

As stated above, in order to successfully allege a negligent misrepresentation, there must first be a misrepresentation of a material fact. Instantly, the plaintiff alleges that as the agent of the seller, the defendant presumably visited the property prior to listing it and failed to require the seller to provide full, fair, consistent and complete answers on the seller disclosure statement. In essence, plaintiff alleges defendants assisted seller in the water misrepresentation contained in the seller’s disclosure form. The second element requires that the representor know either that the representation was false or that he should have known of its falsity. The amended complaint alleges that the seller avoided answering water related questions and that the defendant breached its duty as the agent for the seller or the Real Estate Seller’s Disclosure Law by allowing the false, incomplete, incorrect or misleading information. Again, plaintiff alleges defendant’s assistance in seller’s misrepresentation of a material fact. Further, plaintiff alleges that he relied on the disclosure statement in purchasing the property and would not have purchased the property had disclosure of the defect been made to him. Finally, as to the fourth element, the plaintiff alleges injuries as a result thereof.

[574]*574While the general rule is that a principal is responsible for the misrepresentation of his agent, plaintiff here asserts that the defendant be held liable for permitting the seller to misrepresent the condition of the premises sold to him. Plaintiff makes the argument that a real estate broker can be held liable to third parties for damages, especially when the third party is a buyer. Citing Slaybaugh v. Newman, 330 Pa. Super. 216, 479 A.2d 517 (1984). We find that this is an accurate statement of the law in that real estate brokers and salesman can be held accountable for damages by third parties for misrepresentation including the failure to disclose material facts. Moreover, it is well settled that a deliberate disclosure of a material fact amounts to culpable misrepresentation no less than an intentional affirmation of a material falsity. O’Callaghan v. Weitzman, 291 Pa. Super. 471, 436 A.2d 212 (1981).

In viewing the well-pleaded allegations as true, including all reasonable inferences deducible therefrom, we believe that plaintiff has alleged a cause of action against defendants.

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Broeg v. Pivovar, 80 Pa. D. & C.4th 569 (Pa. Super. Ct. 2006).

80 Pa. D. & C.4th 569 (Broeg v. Pivovar) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

BAKER v. RANGOS
324 A.2d 498 (Superior Court of Pennsylvania, 1974)
O'CALLAGHAN v. Weitzman
436 A.2d 212 (Superior Court of Pennsylvania, 1981)
Gibbs v. Ernst
647 A.2d 882 (Supreme Court of Pennsylvania, 1994)
Krajsa v. Keypunch, Inc.
622 A.2d 355 (Superior Court of Pennsylvania, 1993)
Emerich v. Philadelphia Center for Human Development, Inc.
720 A.2d 1032 (Supreme Court of Pennsylvania, 1998)
Sutton v. Miller
592 A.2d 83 (Superior Court of Pennsylvania, 1991)
Sweatt v. Department of Corrections
769 A.2d 574 (Commonwealth Court of Pennsylvania, 2001)
Leach v. Hough
507 A.2d 848 (Supreme Court of Pennsylvania, 1986)
Slaybaugh v. Newman
479 A.2d 517 (Supreme Court of Pennsylvania, 1984)
Landau v. Western Pennsylvania National Bank
282 A.2d 335 (Supreme Court of Pennsylvania, 1971)