Appeal from the Order Entered August 9, 2010 In the Court of Common Pleas of Delaware County Civil Division at No. 08-15684
The opinion of the court was delivered by: Bender, J
BEFORE: FORD ELLIOTT, P.J.E., BENDER and MUNDY, JJ.
Janet S. Milliken (Buyer) appeals from the order granting summary judgment in favor of Kathleen and Joseph Jacono (Sellers) and their agents, Fran Day and Thomas O'Neil, employed by the Cascia Corporation, trading as RE/MAX Town & Country (Agents). Buyer claims that the trial court erred in granting Sellers' and Agents' motions for summary judgment on several claims arising from the 2007 sale of a house to Buyer without Sellers or Agents disclosing to Buyer that a murder/suicide of a husband and wife had occurred in the house in 2006. For the reasons that follow, we reverse and remand.
The trial court set forth the procedural and factual history of this case as follows:
On November 24, 2008, Plaintiff Janet S. Milliken filed a Complaint against Defendants Kathleen Jacono and Joseph Jacono (hereinafter the "Jacono Defendants"), as well as the two real estate firms in the underlying transaction. The Jacono Defendants were the prior owners and sellers of the property to the Plaintiff Milliken. Defendants, Cascia Corporation, trading as Re/Max Town & Country, Fran Day and Thomas O'Neill (hereinafter, the "Re/Max Defendants") were the listing agents that represented the Jacono Defendants for the sale of the property. Defendants, Fox & Roach, LP, trading as Prudential Fox & Roach Realtors, John Restrepo (hereinafter "Fox & Roach Defendants"), represented the Plaintiff in the purchase of the property as her broker and agent.
Plaintiff's Complaint alleges fraud and misrepresentation regarding the sale of the property without disclosing the death of the individuals who owned the property prior to the Jacono Defendants owning it. The Complaint sets forth four (4) counts against the Jacono Defendants: Count I - Breach of Real Estate Seller Disclosure Law, Count III - Negligent Representation,
Count V - Fraud, and Count VII - violation of the Unfair Trade Practices and Consumer Protection Law. The Jacono Defendants filed an Answer with New Matter and Crossclaims on May 18, 2009. On June 10, 2010, the Jacono Defendants filed [motions] for Summary Judgment, which this Court granted. Plaintiff appealed.
1. On February 11, 2006, the owner of the property prior to the Jacono Defendants, Konstantinos Doumboulis, allegedly shot his wife and himself at that property.
2. The Jacono Defendants purchased the property from the Koumboulis Estate at a real estate auction on September 23, 2006.
3. On May 1, 2007, a Consumer Notice was signed by Plaintiff Milliken and Mr. Restrepo regarding duties of real estate professionals which notes that buyer's agents have a duty of confidentiality except for the disclosure of known material defects about the property.
4. Defendant, Mr. Jacono, spoke with Brian Collins and Judith Schulder, representatives of the Pennsylvania Real Estate Commission, who confirmed that the murder/suicide was not a material defect that needed to be disclosed.
5. Mr. Jacono's conversation with Ms. Schulder of the Pennsylvania Real Estate Commission was later memorialized in electronic correspondence.
6. After Mr. Jacono's conversations with the representatives of the Pennsylvania Real Estate Commission, the Jacono Defendants entered into a Listing Agreement for sale of the property with the Re/Max Defendants on June 4, 2007.
7. After entering into the Listing Agreement with the Jacono Defendants, the Re/Max Defendants called the Pennsylvania Association of Realtors Legal Hotline and were told that the murder/suicide was not a material defect which required disclosure.
8. The Re/Max Defendants also performed internet research to confirm these findings and produced an article regarding disclosure of material defects.
9. On June 17, 2007, an Agreement of Sale for 12 Pickering Trail was signed by Plaintiff and the Jacono Defendants.
10. The Seller Property Disclosure Statement dated June 17, 2007 does not disclose the murder/suicide as a known material defect.
11. The Seller Property Disclosure Statement indicates that the property was last occupied in March 2006, and that the Jaconos have owned the property for seven months.
12. Plaintiff alleges that she was unaware of the murder/suicide until three weeks after she moved into the property, allegedly sometime in September 2007.
13. Plaintiff also alleges that she proceeded with the transaction under the presumption that there was a foreclosure involved with the Jacono Defendants' purchase of the property.
14. On June 20, 2007, the Re/Max Defendants mailed the Thornbury Hunt Owners' Association Documents to Plaintiff Milliken which listed Konstantinos Koumboulis as the owner of the Property.
15. On July 6, 2007, Plaintiff Milliken signed an acknowledgement of receipt of the Thornbury Hunt Owners' Association Documents.
16. Despite receiving the Thornbury Hunt Owners' Association Documents before closing, Plaintiff did not review them or investigate Mr. Koumboulis' ownership.
17. Plaintiff admits at her deposition that she reviewed the Title Report from Trident dated July 18, 2007 before closing.
18. The Title Report included a statement that this property was conveyed by the Estate of Kostantinos Koumboulis and Estate of Georgia Koumboulis to the Jaconos by Deed dated October 31, 2006 and recorded January 19, 2007.
19. The Title report, Schedule C, Description and Recital, states as follows:
Being the same premises which Estate of Kostantinos Koumboulis and Estate of George Koumboulis, William C. Mackrides, Esq. and Constantine Economides, Esq., CoAdministrators of Estates by Deed dated 10/31/2006 and recorded 1/19/2007 in Delaware County in Volume 4008 Page 630 conveyed unto Joseph Jacono and Kathleen M. Jacono, husband and wife, in fee.
20. Plaintiff testified that she read the Title Report and recognized that the Jacono Defendants had purchased the property from the Koumboulis Estate, but proceeded with the transaction.
21. On August 10, 2007, Plaintiff closed on the property for $610,000,00, but was not present at the closing.
Trial Court Opinion (T.C.O.), 4/6/11, at 1-4. In this appeal, Buyer presents the following four ...