Matatall v. Bouch

26 Pa. D. & C.5th 154
CourtPennsylvania Court of Common Pleas, Clearfield County
DecidedSeptember 18, 2012
DocketNo. 2012-481-CD
StatusPublished

This text of 26 Pa. D. & C.5th 154 (Matatall v. Bouch) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Clearfield County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Matatall v. Bouch, 26 Pa. D. & C.5th 154 (Pa. Super. Ct. 2012).

Opinion

AMMERMAN, J.,

I. Statement of the Facts

The plaintiffs, Robert and Janice Matatall (Matatalls), purchased a home located at 7073 Main Street, Burnside, PA from defendant Kathy Bouch (Bouch). Bouch is a realtor employed by Powell & Associates Real Estate, LLC (Powell) who is joined as a codefendant in this case, Bouch acted as the realtor/owner/seller, and Powell acted as the listing agency for the home. Codefendant Fred Day (Day) was the building contractor who built the home. Construction was inspected by codefendant Guardian Inspection Services (guardian) to determine whether construction was within applicable construction codes. Codefendant Lawrence J. Spritz (Spritz) was the sole employee and, together with his wife, the owner of named codefendant ACI Services, Inc. (ACI). ACI/Spritz [156]*156performed an appraisal on the home in question.

Bouch had an existing house on the lot located at 7073 Main Street torn down and replaced with a new house. The new house was constructed by day. Guardian conducted inspections of the construction and issued permits and certifications on behalf of the borough of Burnside to Day. Guardian also inspected the house at various stages of construction to confirm compliance with various codes and ordinances. Construction was completed in 2009 and the home was listed for sale on May 18, 2010 by Ouch through Powell as the listing agency.1 Ouch signed a seller disclosure statement on the property on May 18, 2010.2 The Matatalls made an offer on the new house on June 24, 2010. Bouch made a counter offer on the same day which the Matatalls accepted by their signature on June 26, 2010.3 ACI/Spritz performed an appraisal on the property with an effective date of July 21, 2010.4

The plaintiffs assert that immediately after moving into the home they experienced problems with the house. These problems include leaking pipes in the bathroom and kitchen, improper electrical work, wetness and leaking in the basement which caused black mold and ice buildup. They also allege that the insulation was improperly installed around the windows and that there were openings in the outside walls. Plaintiffs say that cracks developed in the basement floor through which water seeped. The [157]*157Plaintiffs further claim numerous plumbing problems with the home causing damage necessitating repairs.

The Plaintiffs claim that aspects of the house were not incompliance with applicable building codes regulating the various requirements for stairs and the required dimensions of support posts. They also claim that the fill around the basement wall consisted of dirt, broken glass and plastic. They claim that this is substandard fill and was in part responsible for settling and sinking of the house causing the drywall to crack.

In their amended complaint the plaintiffs indicate that the property was constructed on a flood hazard area as determined by the Federal Emergency Management Agency (FEMA). Theplaintiffs claim that FEMA contacted Burnside Borough regarding the house being within a flood hazard area and that consequently the borough advised the Matatalls to fill in the basement leaving only a crawl space beneath the first floor to be compliant with FEMA’s recommendation and the borough’s flood plain ordinance. The plaintiffs contend that filling in the basement will significantly reduce the value of the house and contend that the absence of a usable basement substantially alters the character of the house they agreed to purchase in the above referenced sales agreement.

In their original and amended complaint the plaintiffs contend that after purchasing the home they learned that Bouch was aware water leaking into the basement. The plaintiffs assert that water had been running through the basement walls, and that this had occurred during an open house while the property was being offered for sale. They claim that though Bouch was aware of this, it was [158]*158disclosed by neither Bouch, nor Powell, nor Day.

The Matatalls complain that the Real Estate Sellers’ Disclosure Law (RESDL) 68 P.S. §7301, et seq, imposed a statutoiy duty on defendants Bouch and Powell to disclose any known material defect in the property to the buyers in a disclosure statement. The Matatalls claim that the defects in the complaint were known to Bouch and Powell and their failure to disclose them was willful, wanton intentional and thus outrageous conduct in violation of the RESDL. For this they seek damages compensating them for their loss as well as punitive damages.

The Matatalls also claim that they were the victims of fraudulent misrepresentation by Bouch and Powell. The plaintiffs seek damages to compensate them for their loss including rescission of the sales contract, consequential damages, and punitive damages. They also claim that Bouch and Powell made negligent misrepresentations in the seller disclosure statement upon which the plaintiffs placed reasonable reliance when entering into the agreement purchase the property. For this they seek compensatory damages and any relief that the court finds appropriate. The Matatalls also claim that Bouch and Powell violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq (UTPCPL). For violating this act the plaintiffs are seeking three times their actual damages plus attorney’s fees as provided for in the UTPCPL.

The plaintiffs claim negligence against guardian. Guardian was responsible for issuing the building permit authorizing Bouch to build the house, and responsible for inspecting the house through various stages of construction to insure compliance with applicable codes and regulations. [159]*159The Matatalls assert that by approving preliminary stages of construction and approving final construction of the house despite the alleged code and regulation violations, Guardian breached its duty to the plaintiffs as the final purchasers of the house. The plaintiffs claim that this was a direct and proximate cause of their damages and they seek compensatory relief and any damages that the court deems appropriate.

The plaintiffs claim negligence against ACI/Spritz for failing to indicate that the house was located in a FEMA designated flood hazard zone in the appraisal. The plaintiffs claim a breach of the implied warranty of habitability against Bouch and Day because the plaintiffs claim that the defects in the construction made the home uninhabitable.

The following opinion and order are limited to the preliminary objections raised by Bouch.

II. Preliminary Objections by Bouch

Defendant, Kathy Bouch has filed preliminary objections to the plaintiffs’ amended complaint based on rule 1028(a)(3) and 1028(a)(5) claiming that the plaintiffs’ complaint lacked sufficient specificity and the that plaintiff failed to join a necessary party. However, the defendant’s preliminary objection should be dismissed because the plaintiffs’ compliant is not deficient in either respect.

A. Failure to Join a Necessary Party

The first issue raised in the defendant’s preliminary objection is that the plaintiffs failed to join their seller agent, Richard Ellenberger (Ellenberger) and Howard Hanna Realty (Howard Hanna) as defendants in this suit. [160]

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Bluebook (online)
26 Pa. D. & C.5th 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/matatall-v-bouch-pactcomplclearf-2012.