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CYNTHIA L. SMITH v. DALE F. RENAUT (08/21/89)

filed: August 21, 1989.

CYNTHIA L. SMITH
v.
DALE F. RENAUT, RICHARD HUFF AND KEY REAL ESTATE, INC. APPEAL OF RICHARD HUFF AND KEY REAL ESTATE, INC.



Appeal from Judgment of the Court of Common Pleas, Civil Division, of York County, No. 86-SU-4132-01.

COUNSEL

Stephen L. Banko, Harrisburg, for Huff and Key Real Estate, appellants.

Daniel W. Shoemaker, York, for Smith, appellee.

Wieand, Popovich and Hester, JJ.

Author: Wieand

[ 387 Pa. Super. Page 302]

This appeal is from a judgment entered on the verdict of a jury awarding damages to a purchaser of real estate against the seller, the real estate brokering agency, and the real estate salesman who made the sale because of their failure to disclose (1) the full extent of termite damage and (2) the presence of chlordane, a carcinogen, in the well water. Although all defendants appealed, the seller's appeal was dismissed for failure to file a brief. The appeals presently before this Court, therefore, are the appeals of the brokering agency and salesman. Their principal contentions are that the evidence failed to establish that they were guilty of fraud or otherwise liable to the purchaser for either compensatory or punitive damages.

It was in 1976 when Dale F. Renaut purchased a residence located at R.D. # 1, Route 30, Abbottstown, York County. It was then discovered that the property was infested with termites. Therefore, Renaut hired a professional exterminator to rid the property of the termites. The extermination was successful; and the exterminator returned

[ 387 Pa. Super. Page 303]

    annually thereafter to inspect the property for termites, but found none. Renaut resided in the home for ten years before deciding to sell.

In May, 1986, he listed the property for sale with Key Real Estate, Inc. Its agent, Donna Hurfel, inspected the premises, and Renaut pointed out to her the areas of the home which he knew to have been damaged by termites. These included small, visible perforations in the living room floor and damage to the joists beneath the first floor, which could be seen from the basement.

Cynthia Smith, who was accompanied by her mother and two sisters, was shown the property on May 21, 1986, by Richard Huff, a real estate salesman employed by Key Real Estate. At that time, Renaut told her that there had been termite damage. According to Smith's testimony, however, Huff, the salesman, told her that "the property has minor termite damage, but it had been repaired, so you don't need to worry about it." After viewing the house, Smith agreed to purchase it for $45,000. Approximately a month later, Smith again visited the house with Huff, observed the perforations in the living room floor and was told that it was termite damage. Smith visited the premises a third time, three days before closing, when she spent several hours there. Although Renaut was at home on this occasion, Smith did not ask him about termite damage, and the matter of termite damage was not discussed.

Prior to the closing, Key Real Estate arranged for an inspection of the property and the issuance of a pest-free certificate as required by the bank which was financing a part of the transaction. At closing, the purchaser was given a copy of a termite certification which recited that there was no live infestation of termites, but she did not request or receive a copy of the pest-free certificate required by ...


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