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ALEXANDER D. PERSON AND SHARON D. LONDON PERSON v. C.R. BAXTER REALTY COMPANY V. EDWARD P. CARROLL CONSTRUCTION COMPANY (03/29/85)

filed: March 29, 1985.

ALEXANDER D. PERSON AND SHARON D. LONDON PERSON, HIS WIFE, APPELLANTS,
v.
C.R. BAXTER REALTY COMPANY V. EDWARD P. CARROLL CONSTRUCTION COMPANY, LTD.; ALEXANDER D. PERSON AND SHARON D. LONDON PERSON, HIS WIFE, APPELLANTS, V. THOMAS R. SMITH AND MARGARET E. SMITH, HIS WIFE, APPELLEES



No. 823 Philadelphia, 1984, Appeal from Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 345 January, 1978. No. 824 Philadelphia, 1984, Appeal from Order of the Court of Common Pleas, Civil Division, of Monroe County, No. 346 January, 1978.

COUNSEL

John P. Lawler, Stroudsburg, for appellants.

Harry A. Vican, Stroudsburg, for appellee.

Wieand, Del Sole and Popovich, JJ.

Author: Wieand

[ 340 Pa. Super. Page 539]

Alexander Person and Sharon Person, husband and wife, purchased from Thomas Smith and Margaret Smith, husband and wife, a residential dwelling in Monroe County. After the Persons had taken title and moved into the property, they discovered that the dwelling was structurally unsound. Not only was there an inadequate foundation, but there had also been extensive rotting of floor joists, wall studs and exterior sheathing. The roof also leaked. They commenced an action against the sellers alleging fraud and deceit for having failed to disclose the existence of structural defects. They also brought an action in assumpsit against Edward P. Carroll Construction, Co., Ltd., alleging that it had negligently performed a contract to inspect the structural condition of the dwelling prior to

[ 340 Pa. Super. Page 540]

    closing.*fn1 The actions were consolidated for trial before a jury. At the close of the evidence, the trial court entered directed verdicts in favor of all defendants. This appeal followed. We reverse.

In Quashnock v. Frost, 299 Pa. Super. 9, 445 A.2d 121 (1982), this Court adopted the modern view "that where there is a serious and dangerous latent defect known to exist by the seller, then he must disclose such defect to the unknowing buyer or suffer liability for his failure to do so." Id., 299 Pa. Superior Ct. at 17-19, 445 A.2d at 125 (footnotes omitted).

The plaintiff-appellants introduced evidence that the house was in danger of collapse. Mrs. Person, in fact, had fallen when a floor board broke under her foot. There was also evidence that the sellers had been aware of the defective condition of the home and had been attempting to "unload" it. The evidence showed that the sellers had not disclosed to the buyers that the home was structurally unsound.

A directed verdict can properly be granted by a court only if the facts are clear and free from doubt. Correll v. Werner, 293 Pa. Super. 88, 90, 437 A.2d 1004, 1005 (1981). In ruling on a motion for directed verdict, a court must "accept as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made and must reject all testimony and inferences to the contrary." Thomas v. Allegheny & Eastern Coal Co., 309 Pa. Super. 333, 339, 455 A.2d 637, 639 (1982). Accord: Correll v. Werner, supra.

When we review the record in this case and apply thereto the law existing in this Commonwealth, we are led inexorably to the conclusion that appellants' evidence of fraud and deceit by the sellers was sufficient to create a ...


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