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[U] Vitanovich v. Grubb

Superior Court of Pennsylvania

February 11, 2014

EVELYN VITANOVICH Appellant
v.
JOHN GRUBB AND PATRICIA GRUBB, HUSBAND AND WIFE, AND COLDWELL BANKER REAL ESTATE SERVICES, INC. Appellees EVELYN VITANOVICH Appellant
v.
JOHN GRUBB AND PATRICIA GRUBB, HUSBAND AND WIFE, AND COLDWELL BANKER REAL ESTATE SERVICES, INC. Appellees

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered October 29, 2012 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD- 11-23786

Joseph D. Seletyn, Esq.

BEFORE: PANELLA, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM

PANELLA, J.

Appellant, Evelyn Vitanovich, appeals from the orders entered October 29, 2012, in the Court of Common Pleas of Allegheny County, which granted the preliminary objections of Appellees, John and Patricia Grubb and Coldwell Banker Real Estate Services, Inc. (collectively, "Appellees"), to Vitanovich's Second Amended Complaint. After review, we affirm in part, reverse in part, and remand.

This case centers upon a residential home purchase. The facts alleged in Vitanovich's Second Amended Complaint filed August 10, 2012, are as follows. On December 29, 2010, Appellees John and Patricia Grubb sold their hom e located in Pittsburgh, Pennsylvania, to Vitanovich. Prior to entering into an agreement of sale, the Grubbs provided Vitanovich with a Seller Disclosure Statement, completed October 12, 2010, which stated that the only areas of the house that were not air conditioned or heated were the master bedroom and the garage. In reliance upon the Seller Disclosure Statement, Vitanovich signed the Agreement of Sale on November 15, 2010.

Thereafter, on December 15, 2010, Vitanovich, through her son, Michael Vitanovich, met with the Grubbs and their real estate agent, Jackie Gerkey of Coldwell Banker. In that meeting the Grubbs and Jackie Gerkey reiterated that the cooling and heating systems did not extend to the master bedroom and the garage. When Vitanovich moved into the house, however, she discovered that the heating system did not heat the kitchen and family room, and the cooling system did not cool the entire second floor of the house. Vitanovich estimated the cost to heat the kitchen and family room and to cool the second floor to be $12, 541.00.

On November 17, 2011, Vitanovich filed a Civil Complaint alleging m isrepresentation and violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa.Stat. § 201-1 et seq. An Amended Complaint was filed on March 9, 2012, and a Second Am ended Complaint followed on August 10, 2012.[1] Appellees filed Preliminary Objections to Vitanovich's Second Amended Complaint on August 20, 2012, alleging that the Complaint failed to state a cause of action. On October 29, 2012, the trial court granted Appellees' Preliminary Objections and dismissed Vitanovich's Second Amended Complaint with prejudice. This timely appeal followed.

On appeal, Vitanovich raises the following issues for our review:

I. Whether the Plaintiff's Second Amended Complaint states a cause of action against the sellers for m isrepresentation?
II. Whether the Plaintiff's Second Amended Complaint states a cause of action against the agent for m isrepresentation?

Appellant's Brief at 2.

Our standard when reviewing a trial court's decision to sustain preliminary objections in the nature of a demurrer is as follows:

The material facts set forth in the com plaint and all inferences reasonably deducible therefrom are admitted as true. The question presented by the demurrer is whether, on the facts averred, t he law says with certainty that no recovery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Toney v. Chester County Hospital, 961 A.2d 192, 197 (Pa.Super. 2008) (internal citations and quotes omitted). " The scope of review in determining whether a trial court erred in sustaining preliminary objections and dismissing a complaint is plenary." Sulkava v. Glaston Finland Oy, 54 A.3d 884, 889 (Pa.Super. 2012) (citation omitted).

Vitanovich argues that the trial court erred when it determined her Second Amended Complaint failed to state a cause of action for fraudulent or negligent misrepresentation against the Grubbs and Coldwell Banker. In order to support a cause of action for fraudulent misrepresentation, a party must establish:

(1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the m isrepresentation; and (6) the resulting injury was proximately caused by the reliance.

Kit v. Mitchell, 771 A.2d 814, 819 (Pa.Super. 2001) (citations omitted). Negligent misrepresentation, on the other hand, requires:

(1) a misrepresentation of a material fact; (2) made under circumstances in which the misrepresenter ought to have known its falsity; (3) with an intent to induce another to act on it; and (4) which results in injury to a party acting in justifiable reliance on the misrepresentation. The elements of negligent misrepresentation differ from intentional misrepresentation in that the misrepresentation must concern a material fact and the speaker need not know his or her words are untrue, but must have failed to make a reasonable investigation of the truth of these words.

Milliken v. Jacono, 60 A.3d 133, 141 (Pa.Super. 2012) (citation omitted).

Accepting all of Vitanovich's factual allegations as true and drawing the reasonable inferences therefrom, we cannot agree with the trial court's entry of a demurrer on the misrepresentation claims. Vitanovich alleges that "Grubbs[ '] statement in Paragraph 13 of the Disclosure Statement [ that the only area of the house that was not heated was the master bedroom] is false because not only is the master bedroom not heated but the heating system does not heat the kitchen or the family room." Second Amended Complaint, 8/ 10/ 12, at ¶ 26. Vitanovich further alleges that she relied upon the Grubbs' Disclosure Statement and the oral statements made at the meeting with the Coldwell Banker representative regarding the capacity of the heating and cooling system when she decided to purchase the house, and that both the Grubbs and Coldwell Banker's representative made the representation that only the master bedroom was not heated, either negligently or knowing that it was false, with the intent to induce Vitanovich to purchase the home. Id. at ¶¶ 28-34; 62-68. Vitanovich avers that as a result of her reliance upon Appellees' representations, she suffered damages in the amount of $12, 541.00. Id. at ¶ 48. These allegations satisfy the pleading requirements of both fraudulent and negligent misrepresentation.[2]

Vitanovich also argues in her brief that the trial court erred when it dismissed her claim that Appellees violated the Pennsylvania Unfair Trade Practices and Consumer Protection Act, 73 Pa.Stat. § 201-1 et seq. The Statement of Questions Involved contained in Vitanovich's brief, however, challenges only the trial court's dismissal of her misrepresentation claim . Rule 2116(a) mandates that all issues raised on appeal must be contained in the Statement of Questions Involved section of the brief. "This rule is to be considered in the highest degree mandatory, admitting of no exception; ordinarily, no point will be considered which is not set forth in the statement of questions involved or suggested thereby." Thomas v. Elash, 781 A.2d 170, 177 (Pa.Super. 2001) (quoting Pa.R.A.P., Rule 2116(a)). Additionally, Vitanovich provides scant argument in support of this claim . Having failed to properly raise and address this claim in her brief, we are precluded from reviewing this claim.

Accordingly, as we conclude that the pleading requirements for all elements of misrepresentation have been satisfied, the trial court erred in dismissing with prejudice the fraudulent and negligent misrepresentation claims against the Grubbs and Coldwell Banker in Vitanovich's Second Amended Complaint. To the extent the trial court's order dismissed Vitanovich's claims under the Pennsylvania Unfair Trade Practices and Consumer Protection Act, we affirm.

Order affirmed in part and reversed in part.

Case Judgment Entered.


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