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BORELLI ET UX. v. BARTHEL (06/17/65)

decided: June 17, 1965.

BORELLI ET UX., APPELLANTS,
v.
BARTHEL



Appeal from order and judgment of Court of Common Pleas of Allegheny County, July T., 1963, No. 2262, in case of Angelo Borelli et ux. v. Theodore N. Barthel et ux.

COUNSEL

David McNeil Olds, with him Elder W. Marshall, and Reed, Smith, Shaw & McClay, for appellants.

William H. Marcus, with him Howard R. Eulenstein, for appellees.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 205 Pa. Super. Page 443]

In this case the plaintiffs, appellants herein, brought an action in trespass for deceit in connection with the sale of a house to them by defendants, appellees herein. The complaint alleged that the purchase was made in reliance on fraudulent misrepresentations made by the defendants and sought damages because the house was not as represented. The defendants demurred

[ 205 Pa. Super. Page 444]

    to the complaint which the plaintiffs were then permitted to amend. The court below sustained the demurrer and dismissed the complaint as amended. Plaintiffs appeal from this order.

For the purposes of a demurrer all the facts pleaded by the plaintiffs in their complaint and the amendments thereto must be taken as true. Savitz v. Weinstein, 395 Pa. 173. An examination of the complaint as amended reveals that the following facts were alleged:

The defendants lived at 4801 Interboro Avenue, Pittsburgh, Pennsylvania. They owned the house there and on March 12, 1963, sold the same to the plaintiffs. Either on the day of the sale or the day before, the plaintiffs visited the defendants at the premises and were told by the defendants "that the house was in A-1 condition and needed no repairs, and that the plaintiffs could move right in, and that they would not have to spend one cent for repairs." At that time the plaintiffs made an inspection of the basement and observed that the ceiling of the basement was covered with plaster board which concealed the floor joists. At that time the defendants told the plaintiffs that "the plaster board which covered the floor joists was installed to improve the appearance and looks." The representations were untrue and were known to the defendants, who made them, to be untrue. The plaintiffs purchased the property in reliance on these representations. Furthermore, at the time that the plaintiffs inspected the house there were three floor posts in the basement helping to support the upper floors. On April 29, 1963, the plaintiffs settled for the property and received the deed. On May 8, 1963, when the plaintiffs next went to the house they found six supporting floor posts in the basement instead of three. They removed the plaster board from the basement ceiling and found that the floor joists were pulling away from the main

[ 205 Pa. Super. Page 445]

    sill and that termites had infested the joists. The defendants concealed from the plaintiffs the fact that there were six floor posts in the basement to help support the upper floors and by means of the plaster board concealed the condition of the joists from the plaintiffs. On May 8, 1963, the plaintiffs also observed many other defects in the house which we need not recount because they are not material to the decision of this case.

The elements of a cause of action such as the one now before this court are clearly set forth in Neuman v. Corn Exchange National Bank and Trust Company, 356 ...


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