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MILL-MAR v. FRANK AND ALMA STATHAM (05/23/80)

filed: May 23, 1980.

MILL-MAR, INC.
v.
FRANK AND ALMA STATHAM, JAMES E. AND HARRIET J. KEENA, RONALD V. AND BONITA L. KALWARA, JOHN C. AND ANNA M. MYERS, WALTER T. AND HENRIETTA J. HYNICKA, GEORGE P. AND SHARON J. OLSEN, RICHARD D. AND PATRICIA A. CLAFFEY, MARY LORENE FOX, DANIEL J. AND MADELYN E. WARD, RICHMOND HILLS SAVINGS BANK, CROCKETT MORTGAGE CO., FEDERAL MORTGAGE ASSOC., FULTON NATIONAL BANK, COMMONWEALTH NATIONAL BANK AND FIRST FEDERAL SAVINGS AND LOAN ASSOC., THEIR HEIRS AND ASSIGNS AND ALL SUCCESSORS IN TITLE TO A PARCEL OF REAL ESTATE SITUATE IN EAST HEMPFIELD TOWNSHIP, LANCASTER COUNTY, PENNSYLVANIA. APPEAL OF FRANK AND ALMA STATHAM AND JAMES E. AND HARRIET J. KEENA



No. 2174 October Term 1978, Appeal from the order of the Court of Common Pleas of Lancaster County, Civil Division, No. 12 September Term 1975.

COUNSEL

Menno B. Rohrer, Lancaster, for Frank Statham and Alma Statham, appellants.

D. Patrick Zimmerman, Lancaster, for James E. Keena and Harriet J. Keena, appellants.

David E. Wagenseller, III, Lancaster, for Mill-Mar Inc., appellee.

Price, Spaeth and Lipez, JJ. Spaeth, J., files a dissenting opinion.

Author: Lipez

[ 278 Pa. Super. Page 298]

Appellee Mill-Mar, Inc. (Mill-Mar), a land developer, hired*fn1 a surveyor to survey its property and prepare a subdivision plan for recording, as required by Lancaster County ordinance.*fn2 The surveyor's negligence in executing the plan resulted in the incorrect plotting of a road constructed by Mill-Mar through the subdivision. Mill-Mar then conveyed various parcels of land fronting on the road to one John C. Myers, a builder. Myers, after constructing a house on each lot, sold one to appellants Statham and another to appellants Keena. Some time after appellants had settled with Myers and moved into their new homes, they discovered that the descriptions of the lots in the deeds from the builder did not agree with the boundaries of the properties as actually occupied.

In order to clear the way for dedication of the road to the municipality, Mill-Mar brought an action to quiet title against the appellants (and numerous other purchasers and mortgagees). Appellants counterclaimed, seeking money damages. They alleged that 1) the deeds overstated the area of their respective lots; 2) as a result of the faulty

[ 278 Pa. Super. Page 299]

    survey, the Statham's house encroached upon a pipeline company's right-of-way; and 3) that the "confusion and uncertainty" engendered by the incorrect descriptions of the properties left appellants unable to convey good and marketable title thereto. The court below granted summary judgment in Mill-Mar's favor on its complaint and on appellants' counterclaims.

Summary judgment may be granted only when there be no issue of material fact. Granthum v. Textile Machine Works, 230 Pa. Super. 199, 326 A.2d 449 (1974). All inferences must be drawn against the moving party. Husak v. Berkel, Inc., 234 Pa. Super. 452, 458, 341 A.2d 174, 177 (1975).

The trial court held that appellants had no cause of action against Mill-Mar because the parties had not been in contractual privity inter se. The record clearly shows, and appellants admit in their brief, that no contractual privity between Mill-Mar and them existed. However, appellants claim, on this appeal, that Mill-Mar is liable to them under Restatement of Torts 2d ยง 552, which provides:

(1) One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Except as stated in Subsection (3), the liability stated in Subsection (1) is limited to loss suffered

(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and

(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in ...


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