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07/14/97 ALBERT M. BORTZ v. PATRICK J. NOON AND

July 14, 1997

ALBERT M. BORTZ,
v.
PATRICK J. NOON AND VIRGINIA R. NOON, COLDWELL BANKER REAL ESTATE, A PROFESSIONAL CORPORATION AND SUBURBAN SETTLEMENT SERVICES, INC., A PENNSYLVANIA CORPORATION, V. J.J. NOLTE, AN INDIVIDUAL; APPEAL OF: COLDWELL BANKER REAL ESTATE, INC.



Appeal from the Decree dated October 15, 1996 and docketed September 6, 1996, in the Court of Common Pleas, Civil Division, Allegheny County, at No. GD88-12569. Before MCFALLS, J.

Before: Cirillo, P.j.e., Johnson, J. and Cercone, P.j.e. Opinion BY Cirillo, P.j.e.

The opinion of the court was delivered by: Cirillo

OPINION BY CIRILLO, P.J.E.

Filed July 14, 1997

Coldwell Banker Real Estate, Inc. ("Coldwell Banker") appeals from a final decree entered in the Court of Common Pleas of Allegheny County in favor of Appellee Albert Bortz. We affirm in part and reverse in part.

On July 22, 1988, Albert Bortz filed a complaint in equity *fn1 against Defendants Patrick J. Noon, Virginia Noon, Coldwell Banker, and Suburban Settlement Services, Inc. ("Suburban Settlement"), *fn2 alleging false representation in connection with his purchase of a residential property located in Pittsburgh. *fn3 Albert Bortz and his former wife, Cindy Bortz, entered into an Agreement of Sale with the Noons to purchase their home located at 479 Woodland Road in Pittsburgh, Pennsylvania. Coldwell Banker, through its agent, Renee Valent, acted as the selling agent for the property. In order to receive a commitment from the mortgage lender, Coldwell Banker Residential Mortgage Services, Inc. ("Lender"), *fn4 the property's on-site septic system *fn5 had to pass a dye test *fn6 prior to closing. A dye test was performed by Russ Plumbing and Heating in mid-August, prior to the parties' September settlement. The dye test failed and Valent informed the Bortzes that the septic system had been tested, was not working properly, and that settlement would be delayed until a clean septic dye test was received.

The Noons hired J.J. Nolte, a contractor, to make the necessary repairs to the septic system. Ten days prior to closing, the Lender notified the title company conducting the closing, Suburban Settlement, that the property had passed the dye test. At closing, the settlement officer, Christopher Abernathy, advised Bortz that he had received a dye test from Nolte indicating that the septic system had passed the test. Subsequent to settlement, A.J. Kramer performed another dye test on the septic system, at Suburban Settlement's request, and the septic system failed. The test concluded that the on-site sewage disposal system could not be repaired and the only alternative was to connect into the public sewer system which would cost over $15,000.00.

After an equity trial, the parties submitted proposed findings of fact and Conclusions of law. The court, thereafter, entered a decree in favor of Bortz in the amount of $15,300.00, plus pre-judgment interest at the legal rate. Coldwell Banker filed post-trial motions which the court denied. After filing a petition to amend its notice of appeal, the court entered a final decree *fn7 from which Coldwell Banker appealed, raising the following issues for our review:

(1) Whether the trial court erred in concluding that Coldwell Banker made fraudulent misrepresentations concerning the results of the dye test;

(2) Whether the trial court erred in concluding that Coldwell Banker committed fraud by concealing the results of an earlier dye test; *fn8 and

(3) Whether the trial court erred in dismissing Coldwell Bankers' cross-claim for indemnity and/or contribution against Defendants Nolte and Suburban Settlement.

Our scope of review of an adjudication in equity is well established: the findings of fact supported by the evidence of record are to be accorded the same weight as a jury verdict, and the findings must be sustained unless the court abused its discretion or committed an error of law. Delahanty v. First Pennsylvania Bank, 318 Pa. Super. 90, 464 A.2d 1243 (1983) (citing Eddystone Fire Co. No. 1 v. Continental Insurance Cos., 284 Pa. Super. 260, 425 A.2d 803 (1981)). In reviewing the trial Judge's findings, the test is not whether the appellate court would have reached the same result on the evidence presented, but rather, after due consideration of the evidence, a Judge could reasonably have reached the Conclusion of the trial Judge. School District of City of Harrisburg v. Pennsylvania Interscholastic Athletic Assn., 453 Pa. 495, 309 A.2d 353 (1973). The evidence must be viewed in the light most favorable to the prevailing party below. Krobot v. Ganzak, 194 Pa. Super. 49, 166 A.2d 311 (1960). Additionally, when we examine the evidence of record and the trial Judge's Conclusions based on the evidence, we must accept the trial Judge's findings with respect to the credibility of the witnesses and the weight to be accorded their testimony. Delahanty, 318 Pa. Super. at 114, 464 A.2d at 1255 (citations omitted).

With these standards in mind, we now look to the elements of fraud to determine whether the trial court erred in concluding that Coldwell Banker made fraudulent misrepresentations concerning the results of a dye test. *fn9 It is well settled that one who fraudulently makes a misrepresentation of fact or law for the purpose of inducing another to act or refrain from acting in reliance in a transaction is liable to the other for the harm caused by the justifiable reliance upon the misrepresentation. Smith v. Renaut, 387 Pa. Super. 299, 564 A.2d 188 (1989) (citing Shane v. Hoffmann, 227 Pa. Super. 176, 324 A.2d 532 (1974), overruled in part on other grounds by, 508 Pa. 553, 560, 499 A.2d 282, 286 (1985)). *fn10 To state a cause of action for fraud, the plaintiff is required to establish: (1) misrepresentation; (2) a fraudulent utterance thereof; (3) an intention by the maker that the recipient will thereby be induced to act; (4) justifiable reliance by the recipient upon the misrepresentation; and (5) damage to the recipient as the proximate cause. Woodward v. Dietrich, 378 Pa. Super. 111, 548 A.2d 301 (1988) (quoting Delahanty, (supra) ).

Before considering Appellant's first contention, we note that fraud can take many forms. See Delahanty, 318 Pa. Super. at 107, 464 A.2d at 1251. To be actionable, the misrepresentation need not be in the form of a positive assertion. As the supreme court stated in McClellan Estate, 365 Pa. 401, 75 A.2d 595 (1950), fraud consists in anything calculated to deceive, whether by single act or combination, or by suppression of truth, or a suggestion of what is false, whether it be direct falsehood or by ...


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