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 ...