|September 22, 2010||VOLUME 9 ISSUE 38|
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Daniel S. Strick
The Pennsylvania Superior Court affirmed the grant of defendants’ motion for summary judgment obtained by DRI member Daniel S. Strick) of Lucas and Cavalier, LLC in Philadelphia in the matter of Samia v. Walker, et al. The plaintiff sued sellers Walker and Garcia and real estate agents from Miles & Generalis, Inc. and Go Real Estate, alleging negligent misrepresentation, breach of contract and violations of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law relating to the plaintiff’s purchase of a loft condominium. Lucas and Cavalier, LLC represented all of the defendants, including Miles & Generalis who served as a dual agent for the buyer and the sellers. The plaintiff alleged all defendants failed to disclose that the building and condominium were not adequately insulated to prevent sound transmission. The 100-year-old building was previously a sewing machine factory with long-planked hard wood floors and ceilings before it was converted into condominiums in 2001.
The plaintiff asserted if he had been aware of the lack of sound proofing in the building, which allowed the buyer to constantly hear his neighbors walking around and having s*xual relations, he would not have purchased the unit. The plaintiff asserted each of the defendants had an independent obligation to disclose this alleged defective condition to him before the purchase. The plaintiff purchased a unit in the building in 2005 for $265,000.00 and sold the unit at a short sale for $220,000.00 in 2007. He sought recovery of $795,000.00 (treble the purchase price), plus costs and attorneys’ fees.
After the close of discovery, defense counsel filed a motion for summary judgment, asserting the parol evidence rule precluded plaintiff’s claims for negligent misrepresentation, violations of the UTPCPL and negligence, as the alleged objectionable condition (sound transmission) was open and obvious and would have been discovered with reasonable inspection of the property. In his deposition, the plaintiff testified he “started hearing [the noise conditions] just as soon as he moved in.” Collectively, he heard these noises “morning, noon, and night, every day of the week.” Additionally, the defense further asserted the plaintiff was unable to prove he sustained damages, because his mortgage company agreed to a short sale satisfying his mortgage obligations. The trial court granted defendants’ motion for summary judgment, finding the parol evidence rule applied precluding any evidence of the alleged misrepresentations. Additionally, the trial court found the alleged defects were open and obvious and could have been discovered upon reasonable inspection. Finally, the trial court held the plaintiff could not establish he suffered any damages.
The superior court affirmed, although on different grounds. The superior court found the claims against the defendants were for concealment of the alleged defect – lack of sound proofing – rather than misrepresentation. The superior court reasoned that the defendants did not actively conceal the sound transmission characteristics of the property, as no carpets or other sound deafening devices were temporarily used when the plaintiff viewed the property. As a result of the no liability findings, the superior court did not address whether the plaintiff sustained damages. The superior court also agreed with the defendants that there were no structural defects that needed to be disclosed, pursuant to the Pennsylvania Real Estate Seller Disclosure Law.