Quashnock v. Frost

445 A.2d 121, 299 Pa. Super. 9, 1982 Pa. Super. LEXIS 4053

• Court: Superior Court of Pennsylvania
• Decided: April 30, 1982
• Docket: 8
• Status: Published

Opinions

CERCONE, President Judge:

This appeal involves the question of whether or not a vendor of real estate is liable for failing to disclose his knowledge of a termite infestation to an unknowing purchaser.

In May of 1973, Eldred and Jean Frost, appellants herein, sold their residence to the appellees, Theodore and Joanne Quashnock. The appellants put their house up for sale because Mr. Frost was about to be transferred to a different location by his employer. The Quashnocks expressed an interest in purchasing the residence and asked to be the first to look at it. After examining the house one evening in May of 1973, the Quashnocks advised the Frosts on the next day that they had decided to purchase the property. The Frosts made no representations with respect to the presence of termites, nor did the Quashnocks specifically inquire as to this fact. Moreover, two representatives of the bank which extended the mortgage to the Quashnocks inspected the house and they were neither informed of, nor did they independently discover, the termite infestation. The house was accordingly conveyed on May 28, 1973.

At trial, the Frosts themselves admitted that they had discovered the termite infestation in January of 1971. Around this time when a neighbor and friend, Mrs. Hughes, was visiting, Mrs. Frost showed her a baseboard in the livingroom which was eaten through. Also, there was sawdust on the floor, the rug was frayed, and the floor had weakened. A few weeks later, a termite exterminator was at the home of one of Mrs. Hughes’ other neighbors. Mrs. Hughes asked him if he would take a look at Mrs. Frost’s house to determine if she also had termites. When the exterminator agreed, he accompanied Mrs. Hughes to the Frost home, confirmed the fact that the house was, indeed, infested with termites, told them that the floor had weakened and showed them all of the places in the basement where the termites had left their mark. Although the exterminator offered his services, the Frosts declined to expend the sum of $240.00 to rectify the situation. Instead, they attempted to rid themselves of the pests by spreading powder in the basement area of their home. It was adduced at trial, however, that they knew this preventive action was not successful. Thus, the Frosts admit that they were aware of the termite infestation at the time of the sale.

In January of 1977, as Mr. Quashnock came up the back stairs of the house, he noticed that some paint chips had fallen from the back of a step. When he looked more closely he saw grooves in the wood underneath where the paint had been. The very next day, Mrs. Quashnock had her son remove some old wood that was in the crawl space of the home adjacent to the regular basement. This dirt bottomed area was located under the dining room of the house and access was gained from the basement through a small window on hinges. When they attempted to saw the wood into smaller pieces to burn in the fireplace, the Quashnocks discovered that it was eaten through and that there were “all kinds of grooves” in it. After calling an expert to confirm their suspicion that the dwelling was infested by termites, the Quashnocks arranged to have the place exterminated at the earliest feasible time. This, however, could not be done properly until springtime when the ground had thawed. Sometime thereafter, the task was completed and the Quashnocks undertook to repair the damaged areas.

After the Quashnocks discovered the infestation, but before the actual extermination, Mrs. Hughes was visiting with Mrs. Quashnock for the first time. When Mrs. Quashnock mentioned that they were going to have the house exterminated for ants, Mrs. Hughes indicated that there were more than ants and proceeded to show Mrs. Quashnock the crawl space, the sills, the beams and all of the other areas in the basement which the exterminator had previously indicated were infested with termites. Mrs. Hughes testified at trial that the exterminator had informed her and Mrs. Frost that the “mud channels” which were present on the beams in the basement were one of the visible signs of termites being present. However, when Mrs. Hughes went to show Mrs. Quashnock where these mud channels were, she discovered that the channels had been scraped down and the basement painted. The Frosts admit that they painted the basement but claim that the beams were not painted and that, in any event, their motive was not to conceal. Nevertheless, Mr. Beish, an expert produced by the Quashnocks testified that painting the beams would cover the mud channels and cause them to cave in, thus making them hard to detect:

REDIRECT EXAMINATION

BY [PLAINTIFFS’ ATTORNEY]:

Q. Mr. Beish, I have just a couple questions. There was some talk in Cross-Examination about mud channels and paint. All right. What effect would painting have with mud channels, or on the mud channels?

A. It covers them up and also caves [them] in. Once they are caved in and covered up like that, normally the termite will go in another direction because they have caved in their access area and go to another area that is darker. And they won’t come back.

They don’t like to surface. When they surface they build them [sic] mud channels. Once you knock the channels off and paint over, there is something about the pigment in the paint they don’t care for. They seem to go in another direction. They can still come back out on the paint, not normally, but they can.

Q. Did they in this case?

A. When I seen [sic] the area they was [sic] back out on it at the time, this was back when I inspected it.

Q. Okay, did the paint—would painting have any—

A. If you are asking about killing power, no.

Q. No, would it conceal the presence of termites?

A. For a limited time. Just like anything else. If you have an old rusted car, paint over it, looks good for a while.

Q. It would for a time being.

A. Yes, it would just be a matter of time before—

Q. Until they—

A. After some swarm they come right back out again.

[PLAINTIFFS’ ATTORNEY]: I have no further questions.

RECROSS EXAMINATION

BY [DEFENDANTS’ ATTORNEY]

Q. Mr. Beish, you say the average person does not recognize mud channels as being [evidence of the presence of] termites.

A. That is correct.

Q. They just think some mud [is] on the beam, is that correct?

A. That is correct, because it can come in different sizes.

Q. Pardon me?

A. I say, that is correct, because it can come in different sizes.

Q. And how long would paint conceal the termite[s], for example?

A. That is another hard question, that depends on how bad your infestation is in the area you paint. That could go for a couple years, three years, four years, or could even go a year and come back out.

The Quashnocks instituted this action in trespass in the Court of Common Pleas of Clearfield County claiming as damages the cost of exterminating and repairing their home. After a nonjury trial, the court held the Frosts liable and stated in its opinion:

In this case, the [Frosts] sold certain premises to the [Quashnocks] which they knew to be infested with termites, and although they did not actively conceal said infestation or certify to the nonexistence of said termites, nevertheless, the condition was such that to the casual inexperienced inspector their presence would not be revealed. This court is of the opinion that there was a duty in the sellers to disclose this condition to the buyers regardless of the buyers’ failure to specifically inquire as to the existence of termites.

Damages were, therefore, awarded in the amount of $8,836.00, but were later reduced to $5,192.74 as a result of appellants’ exceptions. This appeal followed.

In Pennsylvania, there is binding and persuasive authority which extends a seller’s liability to a failure to disclose a termite infestation of which he has knowledge. See Glanski v. Ervine, 269 Pa.Superior Ct. 182, 409 A.2d 425 (1979). The dissenting opinion herein characterizes the Glanski decision as one involving material misrepresentation, and so distinguishes the case from the instant matter. This reading by the dissent, however, is only partially correct. In Glanski there were two defendants: (1) the real estate broker who misrepresented the true facts, and (2) the silent seller of the house.¹ Clearly, the broker, Graff, was held liable due to his misrepresentations. However, the silent seller of the property, Ervine, was also held responsible for his failure to disclose. With regard to the seller’s liability, the Glanski court wrote:

Here, there was sufficient evidence to support the verdict against appellant Ervine, for he admitted he had known about the termites. A seller has a duty to disclose conditions that are dangerous to the purchaser. Shane v. Hoffman, supra [227 Pa. Superior Ct. 176, 324 A.2d 532]; Restatement, Torts (Second), § 353. In particular, a seller must disclose a termite infestation. DeJoseph v. Zambelli, 392 Pa. 24, 139 A.2d 644 (1958) (per curiam affirmance of finding of liability of seller who did not disclose termite infestation); Shane v. Hoffman, supra (citing DeJoseph v. Zambelli, supra).

269 Pa.Superior Ct. at 191-92, 409 A.2d at 430.

The Glanski decision cited Shane v. Hoffman, 227 Pa.Superior Ct. 176, 324 A.2d 532 (1974) and DeJoseph v. Zambelli, 11 D.&C.2d 447 (1957) aff’d per curiam 392 Pa. 24, 139 A.2d 644 (1958) as authority for its holding. It is true that those cases factually involved acts of concealment or material misrepresentations. Nevertheless, the general principle of law which the Glanski court gleaned from those cases is accurate and the factual differences are of no import with respect to the applicability of the general rule requiring disclosure.² In DeJoseph it was stated:

Where a party is induced to enter into a transaction with another by means of the latter’s fraud or material misrepresentation, such a transaction can be avoided by the innocent party. Fraud arises where the misrepresentation is knowingly false, where there is any intentional concealment calculated to deceive or where there is a nonprivileged failure to disclose.

Id. at 452. See also Clarke v. Assurance Co., 146 Pa. 561, 23 A. 248 (1892) (per curiam decisions have the binding force and effect of law).

Likewise, the Shane v. Hoffman decision quoted similar language to the effect that “... fraud consists in anything calculated to deceive, whether by single act or combination, or by suppression of truth, or a suggestion of what is false, whether it be direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture. It is any artifice by which a person is deceived to his disadvantage.” 227 Pa.Superior Ct. at 181-82, 324 A.2d at 536. (Emphasis added) (quoting McClellan Estate, 365 Pa. 401, 407, 75 A.2d 595, 598 (1950). Moreover, in Shane, this court held the vendor liable not only on principles of respondeat superior but also because she was a silent seller who breached a duty to disclose:

. . . [I]n response to a question at the closing concerning the draining capacity throughout the house, [the seller] said nothing about a problem, which . . . was known to exist. While mere silence is not usually actionable, and while the doctrine of caveat emptor may sometimes apply to prevent action on an undisclosed problem existing at the time of a sale or transaction, such is not the case where the law recognizes a duty to disclose.

... In this jurisdiction, the courts have long recognized a duty to disclose conditions which are dangerous to the purchaser or other persons using the property of another.

227 Pa.Superior Ct. at 184-85, 324 A.2d at 537-38.

Therefore, while DeJoseph and Shane may be read narrowly as being factually distinguishable from Glanski and the case at hand, the general principles of law they articulated are equally applicable to both factual scenarios. Regardless of DeJoseph and Shane, however, the question presented in this appeal was squarely presented and determined in the purchaser’s favor by this Court in Glanski. Thus, there is Pennsylvania authority directly on point that a seller has an affirmative duty to disclose a termite infestation of which he has knowledge. See Annotation, 22 A.L.R.3d 972 (Supp. 1981) (citing Glanski in support of the proposition that Pennsylvania subscribes to the view that a duty to disclose exists).

In seeking enlightenment from other jurisdictions, one will uncover two opposing views in the area of nondisclosure. Absent active concealment or material misrepresentations, the traditional view holds that there is no duty to disclose no matter how unfair—caveat emptor. See Swinton v. Whitinsville Sav. Bank, 311 Mass. 677, 42 N.E.2d 808 (1942); Fegeas v. Sherrill, 218 Md. 472, 147 A.2d 223 (1958); Hendrick v. Lynn, 37 Del.Ch. 402, 144 A.2d 147 (1958). The modern view,³ however, holds that where there is a serious and dangerous⁴ latent⁵ defect known to exist by the seller⁶, then he must disclose such defect to the unknowing buyer or suffer liability for his failure to do so. See Miles v. McSwegin, 58 Ohio St.2d 97, 388 N.E.2d 1367 (1979); Cohen v. Blessing, 259 S.C. 400, 192 S.E.2d 204 (1972); Obde v. Schlemeyer, 56 Wash.2d 449, 353 P.2d 672 (1960). See also note 8 supra. Thus, the state of law can be adequately summarized as follows:

Although it is generally recognized that termite infestation of real estate materially reduces its value, the courts are divided as to the duty of the vendor to give the purchaser information as to the infestation. Thus, it has been held that unless the vendor stands in a fiduciary or other similar relation of trust with respect to the purchaser or the sale is not one at arm’s length, he has no duty to disclose termite infestation in the real estate sold. In support of this rule, it has been said that the law has not yet reached the point of imposing upon the frailties of human nature a standard so idealistic as to hold every seller liable who fails to disclose any nonapparent defect known to him in the subject of sale which materially reduces its value and which the buyer fails to discover. In a few recent decisions, however, the courts held that termite infestation can obviously become a serious and dangerous condition and, if known to the vendor, must in good faith be disclosed to the purchaser, since caveat emptor is no longer rigidly applied to the complete exclusion of any moral or legal obligation to disclose material facts not readily observable upon reasonable inspection by the purchaser, and that the object of the law is to impose on parties to the transaction a duty to speak whenever justice, equity, and fair dealing demand it.

Annotation, 22 A.L.R.3d 972, 975 (1968) (footnotes omitted).

The modem judicial trend is away from a strict application of the caveat emptor doctrine and towards the more fair and equitable doctrine requiring disclosure of latent defects which are of a serious and dangerous nature:

It is of course apparent that the content of the maxim ‘caveat emptor’, used in its broader meaning of imposing risks on both parties to a transaction, has been greatly limited since its origin. When Lord Cairns stated in Peek v. Gurney that there was no duty to disclose facts, however morally censurable their non-disclosure may be, he was stating the law as shaped by an individualistic philosophy based upon freedom of contract. It was not concerned with the morals. In the present stage of the law, the decisions show a drawing away from this idea, and there can be seen an attempt by many courts to reach a just result in so far as possible, but yet maintaining the degree of certainty which the law must have. The statement may often be found that if either party to a contract of sale conceals or suppresses a material fact which he is in good faith bound to disclose then his silence is fraudulent.

The attitude of the courts toward non-disclosure is undergoing a change and contrary to Lord Cairns’ famous remark it would seem that the object of the law in these cases should be to impose on parties to the transaction a duty to speak whenever justice, equity, and fair dealing demand it.

Keeton, Fraud—Concealment and Non-Disclosure, 15 Tex.L. Rev. 1, 31 (1936).

In Obde v. Schlemeyer, supra, the Supreme Court of Washington State quoted the above passage with approval and made a pertinent comparison to that state’s modernized landlord-tenant law which holds a landlord liable for failing to disclose concealed defects known to him at the time the lease is made, and dangerous to the unknowing tenant. 56 Wash.2d at 451-53, 353 P.2d at 674-75 (quoting Perkins v. Marsh, 179 Wash. 362, 37 P.2d 689 (1934)⁷). The court deemed this rule to be equally applicable in the vendorvendee situation. Bringing this comparison home to Pennsylvania law, it is apparent that our recent developments in the landlord-tenant area would dictate a more modern and equitable approach than that of caveat emptor. See, e.g., Pugh v. Holmes, 253 Pa.Superior Ct. 76, 384 A.2d 1234 (1978) aff’d 486 Pa. 272, 405 A.2d 897 (1979).

The dissenters to our opinion today would not hold the sellers liable because they do not view the defect in the instant case as a latent one. In support of this conclusion it is argued that the termite infestation was readily apparent in the crawl space of the house. The record, however, does not bear this out. Mrs. Frost herself admitted at trial that the condition was “not readily noticeable.” Also, Mr. Beish, the expert who testified in this regard, indicated that even if the Quashnocks had seen the mud channels in the crawl space, they nevertheless would not have known what they were:

CROSS EXAMINATION

BY [DEFENDANTS’ ATTORNEY]:

Q. Mr. Beish, you are saying if I gather what you are saying, it is very difficult for a layman to ascertain whether a home is infested with termites, is that correct?

A. The average person, yes, that is correct.

Q. What I’m saying is a person looking at a home, a person looking at a home in order to—you have been here when Mrs. Quashnock testified.

A. Yes, I was here.

Q. And you heard the examination she made of the home.

A. Right.

Q. That type of examination would be very difficult for her to ascertain termites.

A. Yes, sir, unless she would see damage in the crawl space.

Q. Unless she would have gone into the crawl space, otherwise she wouldn’t have seen it.

A. Yes, she could see it, but she wouldn't know what she was looking at.

Thus, the channels were not readily seen in the basement due in no small part to appellants’ recent painting of that area, and, although the channels were more visible in the crawl space, an ordinary inexperienced person would, nevertheless, not have recognized them as signaling a termite infestation.

Moreover, there also was testimony that Mr. Frost himself had never gone into the crawl space even after he discovered he had termites, that he did not think he could fit into the 12" X 24" opening which was approximately three to four feet off of the basement floor, and that the crawl space was closed off by a hinged window, dark and without its own source of light. It is, therefore, our opinion that a “reasonable inspection” of the house by prospective buyers would not require investigation of this particular area of the basement, and the testimony of the expert at trial was clear that any other evidence of termite infestation would not have been readily apparent to an untrained observer of the basement or the rest of the house. Also, it is interesting to note that the infestation was not discovered by the Frosts until after they resided in the house for four years. Nor was it discovered by the Quashnocks until after they resided there for three years and nine months. Nor was it discovered by the two individuals who inspected the property for the bank which financed the Quashnock’s purchase. Thus, on this record we are not inclined to hold that the condition of the house at the time of the sale was such that the infestation would have been discovered upon a reasonable inspection.

More importantly, however, the findings of fact made by the trial judge as evidenced by his written opinion, which was quoted in pertinent part at the outset of this opinion, indicate that the termite infestation would not have been ascertainable by an untrained buyer. Thus, the court below found that the defect was latent and this factual determination should not be disturbed on appeal since it is supported by competent evidence in the record. See First Pennsylvania Banking and Trust Co. v. Liberati, 282 Pa.Superior Ct. 198, 422 A.2d 1074 (1980); Denby v. North Side Carpet Cleaning Co., 257 Pa.Superior Ct. 73, 390 A.2d 252 (1978); Courts v. Campbell, 245 Pa.Superior Ct. 326, 369 A.2d 425 (1976). See also Stauffer v. Stauffer, 465 Pa. 558, 351 A.2d 236 (1976). To permit an appellate court to sift through notes of testimony and make its own independent factual determinations is against our basic notions of appellate review, and would lead to chaos and confusion. For instance, in the present case, one could easily find support in the record for the factual determination that the sellers actively concealed the termite infestation by scraping and painting the beams in the basement. The lower court, however, made a contrary finding based on competent evidence and this determination likewise should not be disturbed on appeal. Therefore, while the facts of this case do not consist of either active concealment or material misrepresentations, they do involve nondisclosure of a serious and dangerous latent defect. As such, application of the modern view as articulated in the Glanski decision would render the Frosts liable for failing to disclose the presence of termites to the unknowing buyers, the Quashnocks.

In conclusion, a termite infestation of a residential house is manifestly a serious and dangerous condition and where as here, its existence is not readily observable upon reasonable inspection, then justice, equity, and fair dealing require the vendor to speak regardless of the buyer’s failure to inquire of the possibility that termites are present. Obde v. Schlemeyer, 56 Wash.2d at 452, 353 P.2d at 675. Therefore, if there were no precedent on the topic, the courts of this Commonwealth would do well to follow the modern trend espoused by the “better reasoned recent decisions.” Cohen v. Blessing, 259 S.C. at 403, 192 S.E.2d at 205-06.⁸ In point of fact, however, this Court has already adopted the modern view in the case of Glanski v. Ervine, supra. Due to principles of stare decisis, therefore, we are constrained to follow the recent and persuasive Pennsylvania authority which is directly on point.

For all of the foregoing reasons, the judgment of $5,192.74 in favor of the buyers in the instant case is affirmed.

SPAETH, J., files a concurring opinion. JOHNSON, J., files a dissenting opinion in which PRICE, CAVANAUGH and POPOVICH, JJ., join. BROSKY, J., files a dissenting opinion. The case was decided prior to the expiration of commission of office of DiSALLE and SHERTZ, JJ.

1 . In fact, the seller therein directed the broker to inform potential buyers of the termite infestation. Instead, the broker told the buyers not to converse with the seller concerning the sale of the house as he was a little eccentric! Nevertheless, the silent seller was held liable on those facts which makes the argument a fortiori in the instant case.

2 . In O’Callahan v. Weitzman, 291 Pa.Superior Ct. 471, 475, 436 A.2d 212, 214 (1981), Judge Hoffman, writing for a panel of this Court which included Judges Spaeth and Brosky, articulated a time tested general principle of law with respect to nondisclosure as it arose in a different context: “It is well settled that ‘the deliberate nondisclosure of a material fact amounts to a culpable misrepresentation no less than does an intentional affirmation of a material falsity,’ Neuman v. Corn Exchange National Bank & Trust Co., 356 Pa. 442, 451, 51 A.2d 759, 764 (1947).”

3 . See Prosser, Law of Torts, § 106 at 697-98 (4th ed. 1971) (footnotes omitted):

[T]here has been a rather amorphous tendency on the part of most courts to find a duty of disclosure in cases where the defendant has special knowledge, or means of knowledge, not open to the plaintiff, and is aware that the plaintiff is acting under a misapprehension as to facts which would be of importance to him, and would probably affect his decision. This tendency, which has gone far to whittle away the “general rule,” has been most manifest in cases involving latent dangerous physical conditions of land or chattels, or defects in the title where the plaintiff has acted upon the reasonable assumption that such conditions do not exist. This has now generally been extended to any facts or conditions basic to the transaction, even though they are of a kind likely to cause only pecuniary loss. Thus when the seller of a house fails to disclose to the buyer the fact that it is infested with termites, or built on improperly compacted filled ground, the modem law is definitely that he will be liable for the pecuniary loss sustained...

... The law appears to be working toward the ultimate conclusion that full disclosure of all material facts must be made whenever elementary fair conduct demands it.

4 . It is important to remember that the defect has to be dangerous in order for the duty of disclosure to exist. For example, termite infestations are dangerous because the structural soundness of the building is affected. See Obde v. Schlemeyer, 56 Wash.2d 449, 353 P.2d 672 (1960). Roach infestations and defective waterwells are not. See Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974) (roach case); Klott v. Associates Real Estate, 41 Ohio App.2d 118, 322 N.E.2d 690 (1974) (waterwell case).

It should be noted that in the instant case supporting beams had been eaten away and that the floor had weakened.

5 . In 37 Am.Jur.2d Fraud and Deceit § 158 (1968), it was stated that:

when there exists in the property which is the subject of a sale latent defects or hidden conditions not discoverable on a reasonable examination of the property, the seller, if he has knowledge thereof, is bound to disclose such latent defects or conditions to the buyer, and his failure to do so may be made the basis of a charge of fraud. (Emphasis added).

Thus, if the condition is readily ascertainable upon a reasonable examination, then the seller is not under a duty to disclose. This was, in fact, the situation in Harrison v. Welsh, 295 Pa. 501, 145 A. 507 (1929) where the Supreme Court stated:

Ordinarily, the seller is not obliged to disclose facts of which he is aware when the vendee can in the exercise of his ordinary activities, discover the truth for himself, though he is responsible for loss if shown guilty of fraud or intentional concealment of essential matters: Rothermel v. Phillips, 292 Pa. 371, 141 A. 241.

Although the Court there recognized a vendor’s duty to disclose latent defects that concern “essential matters,” no liability was found because the court determined that the true facts about the stock transaction in question could have been easily ascertained by the plaintiff in that case through a reasonable investigation of the market with which the plaintiff was familiar. Likewise, Ray et ux. v. Montgomery, et al, Ala., 399 So.2d 230 (1980), is similar in this respect because in that case there was no inspection made and the termite damage therein would easily have been discovered with ordinary diligence.

6 . In Hughes v. Stusser, 68 Wash.2d 707, 415 P.2d 89 (1966), the silent seller was not held liable only because the trial judge made a factual finding that the seller did not know of the termite’s presence at the property in question. Cf. Pyweil v. Haldane, D.C.Mun.App., 186 A.2d 623 (1962).

7 . Where there are concealed defects in demised premises, dangerous to the property, health, or life of the tenant, which defects are known to the landlord when the lease is made, but unknown to the tenant, and which a careful examination on his part would not disclose, it is the landlord’s duty to disclose them to the tenant before leasing, and his failure to do so amounts to a fraud.

179 Wash. at 365, 37 P.2d at 690.

8 . The Cohen case cited and quoted 37 Am.Jur.2d, Fraud and Deceit § 158 (1968) (quoted in note 9 herein, infra) and Annotation, 22 A.L.R.3d 972, § 3 at 977 (1968) (quoted in text herein, supra) in support of its conclusion to follow “the better reasoned recent decisions” which adopt the modem view).