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NELSON G. TYUS v. RICHARD RESTA AND PATRICIA RESTA (04/19/84)

filed: April 19, 1984.

NELSON G. TYUS, JR. AND FRANCES A. TYUS
v.
RICHARD RESTA AND PATRICIA RESTA, APPELLANTS, V. NELSON G. TYUS, JR., AND FRANCES A. TYUS



NO. 75 PITTSBURGH, 1981, Appeal from the Order of December 15, 1980, in the Court of Common Pleas of Beaver County, Civil Action, Law, at No. 806 of 1978.

COUNSEL

Robert R. Stone, Pittsburgh, for appellants.

Craig E. Wynn, Aliquippa, for appellees.

Hester, Beck and Van der Voort, JJ. Hester, J., concurred in the result.

Author: Beck

[ 328 Pa. Super. Page 16]

Appellant/Builder-Vendors*fn1 Richard and Patricia Resta ("Vendors") appeal an order of the Court of Common Pleas of Beaver County which denied their post-trial motions for a judgment n.o.v. or a new trial. We affirm the order of the trial court.

On August 23, 1976, the Vendors entered into a contract with Appellee/Buyers Nelson and Frances Tyus ("Buyers") for the sale of a newly constructed house. As a corollary to the contract, the parties agreed that pending the sale of the Buyers' former house in Arkansas, the Buyers would initially occupy their new house as lessees. The Buyers leased their new home from August of 1976 until March 7, 1977, on which date the Vendors executed a general warranty deed conveying the house and its lot to the Buyers.

On May 12, 1978, the Buyers filed a complaint in assumpsit which alleged, inter alia, that "various defects . . .

[ 328 Pa. Super. Page 17]

    occurred in [their] house which were the direct cause of [the Vendors'] poor workmanship in building said premises, the selection of substandard materials with which to build said premises, or both."

The matter proceeded to trial before a jury. Following the presentation of the Buyers' case, the Vendors moved for a non-suit in favor of Vendors Richard and Patricia Resta, jointly, and alternatively, for a non-suit in favor of Vendor Patricia Resta, singly. Both motions for non-suit were denied.

At the conclusion of the trial the Vendors filed a motion for a directed verdict which the court denied. The jury then rendered a verdict for the Buyers in the amount of $6,750. Pursuant to Pa.R.C.P. No. 227.1, the Vendors filed timely post-trial motions seeking a judgment n.o.v. or a new trial. Subsequently, the Vendors' motions were denied after a hearing and a rehearing at which the Vendors were represented by new counsel.

On appeal the Vendors contend (1) that the implied warranties of habitability and reasonable workmanship were excluded by the terms of the parties' contract of sale; (2) that the Buyers' witness was not properly qualified as an expert; (3) that the testimony of the Buyers' witness constituted hearsay; (4) that the proof of damages was insufficiently exact to prevent jury speculation; (5) that the trial court incorrectly charged the jury as to the measure of damages, and (6) that the trial court improperly instructed the jury as to the liability of Vendor Patricia Resta and wrongly molded the verdict against said Vendor. We shall address these contentions seriatim.

[ 328 Pa. Super. Page 18]

Our scope of review in such cases is well settled. In reviewing a motion for a judgment n.o.v., we must consider the evidence most favorable to the verdict winner and all reasonable inferences therefrom. Ditz v. Marshall, 259 Pa. Super.Ct. 31, 35, 393 A.2d 701, 703 (1978). "A judgment n.o.v. should be entered only in a clear case, and any doubts should be resolved in favor of the verdict." Atkins v. Page 18} Urban Redevelopment Authority of Pittsburgh, 489 Pa. 344, 351, 414 A.2d 100, 103 (1980).

In reviewing a motion for a new trial, we must consider all the evidence adduced at the trial to ascertain whether the verdict was manifestly against the weight of the evidence. Ditz, 259 Pa. Super. at 35, 393 A.2d at 703. "[T]he decision to either grant or deny a motion for new trial is within the sound discretion of the trial court and will be reversed on appeal only if the appellate court determines the trial court palpably abused its discretion," Myers v. Gold, 277 Pa. Super.Ct. 66, 69, 419 A.2d 663, 664 (1980), or committed "a clear error of law." Eldridge v. Melcher, 226 Pa. Super.Ct. 381, 387, 313 A.2d 750, 754 (1973), allocatur denied.

I. Implied Warranties

In Elderkin v. Gaster, 447 Pa. 118, 288 A.2d 771 (1972), Pennsylvania numbered among the first jurisdictions acknowledging an implied warranty of habitability, as well as an implied warranty of reasonable workmanship, in contracts whereby builder-vendors sold newly constructed houses.*fn2 We are now asked to decide whether in selling new homes builder-vendors can limit or disclaim the implied warranties.

Compared to the ordinary home purchaser, the builder-vendor possesses "superior knowledge and expertise in all aspects of building, including its legal aspects." Contractor Industries v. Zerr, 241 Pa. Super.Ct. 92, 106, 359 A.2d 803, 810 (1976) (Cercone, J., dissenting). "In the vast majority of cases the vendor . . . enjoys superior bargaining position . . . . Standard form contracts are generally utilized and '[e]xpress warranties are rarely given, expensive, and impractical for most buyers to negotiate. Inevitably the buyer is forced to rely on the skills of the seller.'"

[ 328 Pa. Super. Page 19]

    generally Zimmer v. Mitchel and Ness, 253 Pa. Super.Ct. 474, 385 A.2d 437 (1978), aff'd, 490 Pa. 428, 416 A.2d 1010 (1980).

To create clear and unambiguous language of disclaimer, the parties' contract must contain language which is both understandable and sufficiently particular to provide the new home purchaser adequate notice of the implied warranty protections that he is waiving by signing the contract. G-W-L, Inc.; accord, Casavant; Herlihy; Sallinger v. Mayer, 304 So.2d 730 (La.App. 1974); see generally Zimmer. To supply proper notice, language of disclaimer must refer to its effect on specifically designated, potential latent defects. See discussion of latent defects, infra. Evidence that the purchaser and the builder-vendor actually negotiated the waiver language in the parties' contract will tend to indicate that the purchaser was aware of the contract's waiver language and its import and accordingly, will tend to substantiate a valid waiver. See Herlihy; Conyers; accord, Sallinger.

In the present case paragraph thirteen of the Vendors' contract with the Buyers states that the

Buyer has inspected the property or hereby waives the right to do so and he has agreed to purchase it as a result of such inspection and not because of or in reliance upon any representation made by the Seller . . . and that he has agreed to purchase it in its present condition unless otherwise specified herein. It is further understood that this agreement contains the whole agreement between the Seller and the Buyer and there are no other terms, obligations, covenants, representations, statements or conditions, oral or otherwise of any kind whatsoever concerning this sale.

The Vendors argue that paragraph thirteen of the parties' contract "negate[s] any and all warranties." We do not agree and shall proceed to analyze each of the component clauses of paragraph thirteen.

[ 328 Pa. Super. Page 22]

The inspection clause introducing paragraph thirteen refutes the existence of Vendors' representations as to defects which would be apparent to the Buyers upon a reasonable inspection of the property being sold. See LeDonne v. Kessler, 256 Pa. Super.Ct. 280, 389 A.2d 1123 (1978); Griffin; see also Quashnock v. Frost, 299 Pa. Super.Ct. 9, 445 A.2d 121 (1982); Glanski v. Ervine, 269 Pa. Super.Ct. 182, 409 A.2d 425 (1979). However, the warranties of habitability and reasonable workmanship are not created by representations of a builder-vendor but rather are implied in law and as such, exist independently of any representations of a builder-vendor. Griffin.

Moreover, the implied warranties of a builder-vendor do not "extend to defects of which the purchaser had actual notice or which are or should be visible to a reasonably prudent man upon an inspection of the dwelling."*fn4 Griffin, 290 N.C. at 200, 225 S.E.2d at 567; accord, Herlihy; see Raab v. Beatty, 96 Pa. Super.Ct. 574 (1929); Stewart v. Trimble, 15 Pa. Super.Ct. 513 (1901); Hermes v. Staiano, 181 N.J.Super. 424, 437 A.2d 925 (1981); Duncan v. Schuster-Graham Homes, Inc., 194 Colo. 441, 578 P.2d 637 (1978); Casavant; Wawak v. Stewart, 247 Ark. 1093, 449 S.W.2d 922 (1970); see also Quashnock; LeDonne; Elfant v. Clauss, 197 Pa. Super.Ct. 201, 177 A.2d 153 (1962).

A reasonable pre-purchase inspection requires examination of the premises by the intended purchaser -- not by an expert. Defects which would not be apparent to an ordinary purchaser as a result of a reasonable inspection constitute latent defects covered by the implied warranties. Raab; Trimble; accord, Park; Sallinger; Casavant; Wawak; see also Quashnock; LeDonne.

[ 328 Pa. Super. Page 23]

Furthermore, a reasonable inspection does not necessitate "'a minute inspection of every nook and cranny.'" Abrams, Inc. v. Wolkov, 371 Pa. 44, 47, 89 A.2d 359, 361 (1952); Quashnock; see LeDonne; Elfant. To the contrary, the requisites of a reasonable inspection vary with the circumstances of the individual case. In Quashnock, for example, this Court held that "a 'reasonable inspection' of [a] house by prospective buyers would not require investigation of the crawl space beneath the house in question since the crawl space lacked lighting and had an entry measuring only one foot by two feet. Id. 299 Pa. Super. at 22, 445 A.2d at 127. Similarly, in LeDonne we excused the purchasers' non-examination of a septic system which was underground and hence, virtually inaccessible. Accord, Sallinger (purchaser not expected to climb onto roof to evaluate soundness of roof structure when purchaser's view of roof was obscured by trees); Casavant (reasonable inspection did not mandate investigation of roof construction where there was no access to the open space under the roof).

In the case sub judice the Buyers principally complained of pervasive dampness in their newly built home which caused mold and mildew throughout the house and produced a constant malodor. Record at 40-44. The expert witness whom the Buyers retained in preparation for the trial of this case,*fn5 testified that the excessive moisture inside the Buyers' house resulted from an improper crawl space drainage system underneath the house. Record at 143-44, 148, 150.

Consequently, our inquiry becomes whether a reasonable pre-purchase inspection of the house by the Buyers should have included the Buyers' exploration of the crawl space under the house. At trial the Buyers' expert gave the following description of the crawl space ...


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