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JOSEPH LEDONNE AND BARBARA LEDONNE v. GEORGE KESSLER AND EMILY L. KESSLER (07/12/78)

decided: July 12, 1978.

JOSEPH LEDONNE AND BARBARA LEDONNE, HIS WIFE, APPELLANTS,
v.
GEORGE KESSLER AND EMILY L. KESSLER, HIS WIFE, APPELLEES



No. 1924 October Term, 1977, Appeal from the Decision of the Court of Common Pleas of the 43rd Judicial District, Monroe County, at No. 194 October Term, 1974., Civil Action, Law.

COUNSEL

David A. Martino, Bangor, for appellants.

Charles P. Eyer, Assistant District Attorney, Stroudsburg, for appellees.

Hoffman, Cercone, Price, Van der Voort and Hester, JJ. Price, J., concurs in the result. Jacobs, President Judge, and Spaeth, J., did not participate in the consideration or decision of this case.

Author: Hoffman

[ 256 Pa. Super. Page 283]

Appellants contend that the lower court erred in entering summary judgment because it believed the parol evidence rule removed all material factual issues from their trespass suit. We agree and reverse the order of the lower court.

On August 31, 1976, appellants, Joseph and Barbara LeDonne, filed a second amended complaint*fn1 in trespass against appellees, George and Emily Kessler, in the Monroe County Court of Common Pleas. Appellants made the following pertinent allegations: On October 1, 1973, they purchased appellees' house and surrounding property in Ross Township, Monroe County, in reliance on appellees' fraudulent misrepresentations that the property had no water or sewer problems. In particular, appellees responded to specific questions by informing appellants that (a) the drainage problem in the septic system had been repaired, (b) the sundeck did not leak water, and (c) the cellar did not leak water; appellees deliberately made these false statements in order to induce appellants to execute the agreement of sale. Moreover, because appellees knew that appellants could not discover the defects through visual inspection of the premises, appellants depended upon appellees' good faith in making these assurances. When appellees prepared the agreement

[ 256 Pa. Super. Page 284]

    of sale, they fraudulently and intentionally omitted the representations concerning water and sewer problems. In reliance on appellees' representations, appellants executed the agreement of sale and a deed. Shortly after appellants moved into their new house, the septic system backed up, and the sundeck and cellar started to leak water. As a result, appellants sustained serious damage to their rugs, sewing machine, and other unspecified personalty as well as the loss of the use of the sundeck and cellar. Appellants asked for damages in excess of $10,000.

Appellants also filed depositions in support of their complaint. Joseph LeDonne described in detail his inspections of appellees' premises prior to execution of the agreement of sale. On one occasion, his wife's father, a carpenter, accompanied him. Both LeDonne and the carpenter noticed black spots underneath the sundeck and on the plywood paneling in the garage directly beneath the sundeck; these spots, in the carpenter's estimation, definitely suggested a water leakage problem. Joseph LeDonne questioned appellee, George Kessler, about the black spots; Kessler responded that although there had been a leak around the chimney, the problem had been corrected. When Joseph LeDonne, his father-in-law, and George Kessler inspected the premises outside the house, LeDonne specifically asked about the septic system. Kessler assured him that the septic system functioned properly, despite a small problem during the previous summer. Kessler showed LeDonne a four inch plastic pipe protruding from the ground; this pipe constituted part of the septic system. Kessler also pointed out a purported drainage field which had been installed to correct the prior septic system problem. LeDonne observed that a portion of the ground had been backfilled and was now fairly smooth; instead of grass, shale covered this segment. LeDonne's observations, coupled with Kessler's representations, satisfied his apprehensions.

In her deposition, Barbara LeDonne confirmed the presence of black spots underneath the sundeck and on the plywood paneling in the garage; these spots made both

[ 256 Pa. Super. Page 285]

LeDonnes and her father suspicious of water leakage problems and prompted their inquiries to appellees. Mrs. LeDonne also stated that an inspection of the cellar, which immediately adjoined the garage, revealed damp conditions which again suggested a water leakage problem. These wet conditions triggered questions concerning possible water leakage problems; appellees again proffered reassuring answers.

On September 10, 1976, appellees filed preliminary objections in the nature of a demurrer to the second amended complaint as well as a motion for summary judgment. Both documents asserted that the parol evidence rule barred prosecution of appellants' trespass suit.*fn2 In particular, appellees relied upon paragraph number six of the agreement of sale: "The parties have full knowledge of the physical appearance of the land and buildings and of the value thereof and there are no verbal ...


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