filed: November 2, 1984.
JOHN LONG AND PATRICIA LONG, HIS WIFE, APPELLANTS
BROWNSTONE REAL ESTATE CO.; LAWRENCE PETERS AND DONALD LECHLEITNER, INDIVIDUALLY AND T/D/B/A BROWNSTONE REAL ESTATE CO.; CARL ADAMS, INDIVIDUALLY AND AS REPRESENTATIVE FOR BROWNSTONE REAL ESTATE CO.; JEAN HOFFMAN, INDIVIDUALLY AND AS REPRESENTATIVE FOR BROWNSTONE REAL ESTATE CO.; AND GARRY LONG AND NANCY LONG, HIS WIFE, APPELLEES
No. 00410 HBG 82, Appeal from the Order of November 2, 1982 in the Court of Common Pleas of Lebanon County, Civil Division, at No. 3029, Year 1979.
Joseph M. Farrell, Palmyra, for appellants.
Thomas A. Ehrgood, Lebanon, for Brownstone, appellees.
George E. Christianson, Lebanon, for Long, appellees.
Wickersham, Olszewski, and Hoffman, JJ. Wickersham, J., files a dissenting opinion.
[ 335 Pa. Super. Page 269]
Appellants contend that the lower court erroneously granted appellees' motion for compulsory non-suit at the close of appellants' case. We agree and, accordingly, reverse the order below.
On September 6, 1978, appellants, John and Patricia Long, entered into a sales agreement with appellees, Garry and Nancy Long, for the purchase of appellees' residence located at 1100 East Maple Street in Palmyra. Appellee Brownstone Real Estate Company (hereinafter "Brownstone") carried the listing of the property. Settlement on the property occurred on November 16, 1978, and appellants took possession the same day. On January 24, 1979, following a heavy rain, the basement of the house was flooded, causing damage to articles stored therein. Appellants thereafter discovered that the basement had been flooded on three occasions prior to the time they purchased the property. Appellants then filed suit against appellees Garry and Nancy Long, appellee Brownstone, and appellees Carl Adams and Jean Hoffman (agents for Brownstone), alleging negligence in failing to inform them of the flooding problem, breach of an implied duty of disclosure, and willful
[ 335 Pa. Super. Page 270]
misrepresentation of the condition of the property. On July 1, 1980, appellants filed a complaint in equity and a complaint in trespass and assumpsit against appellees. On September 10, 1981, appellants stipulated to terminating their equity action with prejudice. On September 14, 1981, jury trial commenced. On September 17, 1981, after appellants presented their case as to liability, the lower court granted appellees' motion for compulsory non-suit. Appellants then filed a motion for removal of the compulsory non-suit, which the lower court en banc denied by Order and Opinion filed November 3, 1982. This appeal followed.
"[A] non-suit should be entered only in a clear case, and on appeal from the refusal to take off a compulsory non-suit, the plaintiff must be given the benefit of all favorable testimony and every reasonable inference of fact arising therefrom and all conflicts thereon must be resolved in favor of plaintiff." Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 231, 213 A.2d 608, 609 (1965). Accord, Norton v. City of Easton, 249 Pa. Superior Ct. 520, 523, 378 A.2d 417, 418 (1977). "When a compulsory non-suit is entered, lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement." Scott v. Purcell, 490 Pa. 109, 112-13, 415 A.2d 56, 58 (1980). "[A] compulsory non-suit may be entered only when the plaintiff cannot recover under any view of the evidence, with every doubt resolved against its entry and all inferences drawn most favorably to the plaintiff." Id.
Here, appellants' evidence, viewed in the most favorable light, reveals the following facts: Appellees, Garry and Nancy Long, purchased the home in question in 1970 and were its first residents. In 1972, 1974, and 1976, while owned by appellees Long, the basement was flooded up to the ceiling, a height of approximately seven-to-eight feet. In March of 1978, appellees Long signed a real estate listing agreement with appellee Brownstone for the sale of the property. In August, 1978, appellants noticed the "For Sale" sign in front of the residence and contacted Brownstone.
[ 335 Pa. Super. Page 271]
Prior to executing the sales agreement in September, 1978, appellants were shown the property, including the basement, by appellee Adams. While inspecting the property, appellants asked Adams if the property had any history of water damage because, if it had, they were not interested in purchasing the property. Adams replied in the negative. Richard Bowman, appellants' prospective mortgagee at the time, also inspected the property in the company of appellee Hoffman. In the basement, Bowman noticed a six-inch water line around the foundation on the cellar wall and asked Hoffman about it. Hoffman informed him that there had been a water problem but did not mention anything about the previous floodings. Bowman, in subsequently approving appellants' mortgage, believed that the water problem had since been alleviated. Appellants completed the purchase and moved into the residence in November of 1978. On January 24, 1979, heavy rain caused water to accumulate in the backyard of the residence. The below-ground basement door quickly collapsed under the pressure and water flooded into the basement, rising to the level of the ceiling rafters, a height of approximately eight feet, and damaging the basement's contents. Thereafter, appellants first learned about the three previous floodings.
The lower court granted the non-suit primarily on the basis of Bowman's testimony regarding the water line in the basement, reasoning that appellants, upon reasonable inspection of the premises, should have noticed the water line and recognized that the house had a flooding problem. Therefore, the court concluded that appellees had no duty to disclose such a patent defect to appellants.
We disagree. First, there is no evidence that appellants ever noticed the water line and, even if they had or should have noticed it, we believe that a six-inch water line is not such an obvious defect as to constitute notice of eight-foot high floodings. A water line around the bottom wall of the basement is more indicative of water seepage or dampness from its foundation than of complete inundation of the basement from ground level. Moreover, appellants
[ 335 Pa. Super. Page 272]
had been falsely informed by the sales agent that the house had never experienced flooding and appellants had no reason to disbelieve him. Additionally, although there was a sump pump in the basement, appellants reasonably believed that such a pump was used in the event the automatic washer overflowed. Under these circumstances, we find that appellants presented sufficient evidence to support their claim that appellees had a duty to disclose the prior floodings and, therefore, hold that the non-suit was unwarranted.
Accordingly, we reverse the lower court's order denying appellants' motion for removal of the compulsory non-suit and remand for a new trial.*fn*
Reversed and remanded. Jurisdiction is relinquished.
WICKERSHAM, Judge, dissenting:
I respectfully dissent.
I would affirm the decision of the Lebanon County Court en banc (per President Judge G. Thomas Gates and Judge John Walter) where the petition to remove a compulsory non-suit was denied. As Judge Walter pointed out in his opinion dated November 2, 1982: