United States District Court, E.D. Pennsylvania
JONATHAN H. BARI and LESLIE S. BARI, H/W, Plaintiffs,
ROBERT SAEID FARIVAR and FIROOZEH MOSTASHARI, H/W, Defendants.
TIMOTHY R. RICE U.S. MAGISTRATE JUDGE
Leslie and Jonathan H. Bari (“the Baris”) allege
Defendants Robert Saeid Farivar and Firoozeh Mostashari
(“the Farivars”) defrauded them and violated the
Pennsylvania Unfair Trade Practices and Consumer Protection
Law (“UTPCPL”) by failing to disclose defects in
a home (“the Home” or “the Property”)
the Baris purchased from them in 2014. They seek compensatory
damages totaling approximately $594, 000, along with treble
and punitive damages and legal fees. As explained below, I
conclude that the Baris have failed to prove their claims and
I will enter judgment in favor of the Farivars.
an unfortunate case of buyers who coveted an elegant and
historic home, but ignored or failed to fully investigate
warnings and disclosures of potential defects in the
Property. After realizing the scope of the problems upon
purchase, the buyers desperately sought to depict the sellers
as frauds who lured them to purchase the Home through lies,
half-truths, and trickery. Sadly, the evidence portrays two
sophisticated, detail-oriented, and well-educated buyers, who
now suffer from buyers' remorse, not fraud.
Home, which is located along the Main Line of suburban
Philadelphia, was constructed in 1807, shortly after our
nation was founded, with additions built in 1941 and 1985.
After an unsuccessful attempt to purchase the Home from a
previous owner in 2012, the Baris purchased the Home from the
Farivars just two years later. Despite having benefited from
two comprehensive inspections of the Home, the Baris now
report problems with the heat, air conditioning, drainage and
water infiltration, tennis court, pool, and Internet
wiring. The Baris contend the Farivars knew about
those problems and unlawfully hid them. The Farivars assert
they either disclosed, adequately remedied, or did not know
about the problems.
on my observations of the parties' demeanor and review of
the evidence, I find Mr. and Mrs. Bari's testimony mostly
sincere, but often exaggerated and embellished. I instead
credit the testimony of Dr. Farivar and Mrs. Mostashari.
Although the Baris blame the Farivars for multiple problems
in the Home, I conclude that the Farivars disclosed what they
knew to the Baris. To the extent they omitted information, or
did not update their disclosure statement, the Baris have
failed to show that such information needed to be disclosed
or that they suffered damages as a result of the
Baris' main allegation, concerning the defective heating
system, was disclosed by the Farivars before the Baris
purchased the Home. The disclosure gave the Baris ample
opportunity to explore potential causes of the heating
problems. They did so, even enlisting a plumbing and heating
contractor to supplement the standard home inspection. The
Baris likewise had notice of the drainage and water
infiltration issues based on disclosures made by the Farivars
and the Home's previous owner, as well as candid warnings
provided during their two inspections of the Home.
Recognizing this, the Baris base their claim on the
Farivars' failure to tell them of the need to keep the
drains clear during rainstorms, which was not a defect and
did not trigger disclosure.
the Baris also charge the Farivars with failing to disclose
issues related to the air conditioning, damage to the tennis
court following a winter storm, and a water line leak, not
all of this information constituted defects that required
disclosure. Indeed, the Farivars timely remedied much of the
damage - conduct that the Baris claim shows the Farivars'
attempts to mislead them. Instead, I find the Farivars acted
in good faith to maintain the Property and transfer it in
on the evidence presented at trial, and pursuant to Federal
Rule of Civil Procedure 52, I make the following findings of
fact and conclusions of law by a preponderance of the
Home sits at the bottom of a long downhill driveway and
consists of three main parts. N.T. 8/3/2017-II at 118; N.T.
8/4/2017 at 89. The center section, which includes a kitchen,
living room, dining room, and several upstairs bedrooms,
dates back to 1807, although some parts have been recently
modernized. N.T. 8/3/2017-II at 117-18; Plaintiff Exhibit
(“P”) 1121. The right side, which includes a
family room, bar room, and guest room, was built in 1941.
N.T. 8/3/2017-II at 117-18; P1121. The left side, which
includes a garage and upstairs master bedroom, was built in
1985. N.T. 8/3/2017-II at 117-18; P1121.
Property also features a pool, pool house, tennis court, and
gym situated on five acres of land with several hundred
trees. N.T. 8/4/2017 at 87-88.
July 2012, the Baris entered into an Agreement of Sale for
the Property with Todd and Barbara Albert, who had owned the
Home since 2000. N.T. 8/3/2017-II at 84; P1083; Defendant
Exhibit (“D”) 7 at Bari3158.
During that transaction, the Alberts provided the Baris with
a Seller's Property Disclosure Statement (“Albert
SPD”), in which they stated that they did not know of
any problems related to the nine-year-old heating system.
N.T. 8/3/2017-II at 84; D7 at Bari3160.
Alberts also stated there were no problems with the air
conditioning system, which was upgraded with a new unit in
2006 and completely rezoned in 2010. D7 at Bari3053; D8 at
Alberts reported that the Property had two sump pumps, and
noted “water leakage, accumulation, or dampness within
the basement or crawl space.” D7 at Bari3158. In an
addendum, the Alberts explained that water had damaged the
basement in the summer of 2004 after a substantial rainfall.
Id. at Bari3164. The damage was repaired and
remediated. Id. Three drains were installed on the
driveway and a “rubber membrane” was placed along
the front portion of the Home to prevent water from entering
the basement. Id.
Alberts additionally stated they knew of “past or
present drainage or flooding problems affecting the
property.” Id. at Bari3161. They explained
that “[i]n the summer of 2011, the finished center
section of the basement received approximately ¼ to
½ inch of water during a hurricane in which an
estimated 8 inches of rainfall was recorded in a 24-hour
period in the southeastern portion of Pennsylvania. Water was
cleaned up and mold prevention measures were taken.”
Id. at Bari3165.
mid-July 2012, the Baris had various inspections performed at
the Home, including a general inspection of all the
Home's major systems and components, and inspections of
the tennis court, pool, and trees. N.T. 8/7/2017-II at 17-18;
D10; D13; D14 at Farivar4368-70.
Inspector Michael Baltrush of ValueGuard Home Inspections
completed the general inspection and reported that the
heating system, which consisted of two boilers,
“functioned properly when tested and appear[ed] in
generally good condition.” D10 at Farivar3016. Baltrush
used an infrared thermometer to determine that the radiators
and baseboards were getting hot, and found no lack of heat at
any of the radiators or baseboards in his report. N.T.
8/7/2017-I at 43. Baltrush cautioned that “[t]he
adequacy of heat distribution is difficult to determine
during a one-time visit to the home.” D10 at
Baltrush noted that the two air conditioning compressors
responded properly to operating controls. Id. at
Farivar3017. Observing condensation on ductwork and water
stains on the floor, Baltrush recommended further evaluation
by a qualified HVAC technician. Id.
Baltrush warned the Baris that basement leakage during rainy
periods or spring “is a way of life” for owners
of older homes. Id. at Farivar3008. He explained
that such leakage rarely influences the structural integrity
of the home, but precautions must be taken to avoid damage to
storage and personal belongings. Id. Baltrush noted
that a waterproofing system had been installed in the front
wall of the basement, and recommended the Baris consult the
Alberts to obtain additional information. Id.
Baltrush also warned that the “front porch and grading
were lower/sloped toward the house, ” and the driveway
“slopes toward the house/garage, ” which could
allow water to enter the Home. Id. at Farivar3012.
He explained that surface drains had been installed to
control the drainage, and again urged that the Baris consult
the Alberts for more information. Id.
tennis court inspector reported that although 90 percent of
courts older than 15 years contain some structural cracks,
the Alberts' court had none. D13 at Bari3248. He also
recommended that the court be resurfaced because it showed
signs of wear. Id.
tree inspection report noted approximately eight trees
surrounding the tennis court that needed to be removed, as
well as “hanging broken limbs” that were
“damaging light fixtures.” D14 at Farivar4370;
N.T. 8/7/2017-II at 39-40.
After the inspections were completed, the Baris sent the
Alberts a 10-page spreadsheet outlining the problems found
during the inspections and asked the Alberts to remedy some
of the problems, including removing the trees around the
tennis court that had “damaged lighting fixtures and
could continue to damage lighting fixtures, [the] court, and
fencing.” D14 at Farivar4364-80; N.T. 8/7/2017-II at
When the Alberts and Baris failed to agree on those issues,
the Baris terminated the agreement of sale. N.T. 8/3/2017-I
August 3, 2012, the Farivars agreed to purchase the Property
from the Alberts. P653.
Farivars arranged for an inspection of the Home on August 9,
2012. N.T. 8/7/2017-II at 176-80; P24; P25. A few days later,
the inspector emailed the Farivars a report outlining several
defects, including uninsulated air conditioning ducts. P25,
P24 at Farivar4047-4049; N.T. 8/7/2017-II at 183-84. The
inspector recommended cleaning and insulating the ducts. P24
at Farivar4046-4049. The inspector testified that the
uninsulated ducts did not impact the effectiveness of the air
conditioning system; rather, the lack of insulation could
cause condensation, dripping water, and possible mold. N.T.
8/7/2017-II at 183-85.
Farivars' inspection report cited no other defects
related to the air conditioning, heating, water infiltration
and drainage, tennis court, pool, or Internet wiring. P24;
N.T. 8/7/2017-II at 187-88.
Farivars never read the report. N.T. 8/8/2017-II at 62-62;
N.T. 8/9/2017 at 67. Instead, Dr. Farivar talked briefly with
the inspector about whether the House had any major
defects. N.T. 8/9/2017 at 67; see also
September 2012, the Farivars purchased the Home from the
Alberts for $1, 700, 000. P653 at Farivar6182.
of the first improvements made by the Farivars, based on Mrs.
Albert's recommendation, was to enlarge the drain in the
front of the Home to make it more effective. N.T. 8/8/2017-II
at 38; P9A at Bari3002.
Because Mrs. Albert advised the Farivars to make sure the
driveway drains were clear during storms, Mrs. Mostashari was
vigilant about clearing the drains pursuant to a bi-yearly
maintenance schedule, and before and during
storms. N.T. 8/8/2017-II at 37-39; N.T. 8/9/2017
at 62; P35 at 222.
Farivars noticed the basement was moist after one storm and
installed a second dehumidifier to help remedy this
situation. N.T. 8/9/2017 at 61-62, 65; P34 at 201-11; P9A at
Farivars testified that they did not otherwise experience
water in the basement or any other area of the Home. N.T.
8/8/2017-II at 39; N.T. 8/9/2017 at 61-62, 64. I credit their
testimony because it is corroborated by the Alberts, who
reported experiencing water infiltration only twice, after
substantial storms. Moreover, the Farivars were in the Home
for just 22 months and there was no evidence of a rainfall
during that time sufficient to cause water
infiltration. To the extent there was such a rainfall,
the Farivars took precautionary measures to avoid water
December 28, 2012, the Farivars called Oliver Heating and
Cooling, pursuant to their maintenance contract, about the
heat. See N.T. 8/3/2017-I at 15; D109. The
technician reported the issue on the service ticket as
“insufficient heat [in] one wing.” See
N.T. 8/3/2017-I at 16; D109. The technician determined that a
thermostat was miswired, corrected the problem, and reported
the heat as working when he left. D109. This service call
does not show that the Farivars knew about a material defect
with the heat because Oliver remedied the problem.
Approximately one week later, the Farivars called Oliver
again. See N.T. 8/3/2017-I at 16; D110. The
technician reported the issue as a “call back”
for “insufficient heat.” D110; see also
8/3/3017 I at 16-17. The technician determined further
investigation was needed because “3 zone valves under
the crawl space are opened, and yet the baseboards on that
zone are not getting hot.” D110. Those valves went to
the bar area in the right wing of the Home. N.T. 8/3/2017-I
at 17. The technician noted the Farivars had an upcoming
appointment with a different Oliver technician, Roger Mauger.
D110. This service call alerted the Farivars to an unresolved
problem with the heat in the right wing.
few weeks later, on January 26, 2013, Dr. Farivar emailed the
Baris, asking if they were still interested in the Home
because he may be putting it back on the market. P632,
Bari0006; N.T. 8/3/2017-II at 94-95.
Later that day, Mr. Bari spoke with Dr. Farivar, who
explained that he was considering selling the Home because he
still owned a home in Iowa, he wanted to live closer to his
job in Philadelphia, and he wanted a more open and modern
home. N.T. 8/3/2017-II at 95. Mr. Bari followed up with an
email to Dr. Farivar, seeking an opportunity to meet the
Farivars to discuss a possible private sale of the Property.
days later, on January 28, 2013, the Farivars called Oliver
again about the heat. D113. Mauger went to the Home and noted
the reason for the call as “insufficient heat.”
Id.; see also N.T. 8/3/2017-I at 20. Mauger
determined a pressure temperature valve and a relief valve
for the boiler were leaking and ordered new parts. D113;
see also N.T. 8/3/2017-I at 20.
Mauger also explained on the service ticket that he
“educated [Mrs. Mostashari] on the heating and A/C
troubles of [the] home that are preexisting to the purchase
of the home.” D113; see also N.T. 8/3/2017-I
at 20, 58-59. Mauger testified that he discussed the heat in
the right wing because that was the “only area”
he knew had an issue. N.T. 8/3/2017-I at 21. Mrs. Mostashari
also said that Mauger spoke to her only about the heat in the
right wing. N.T. 8/8/2017-II at 20 (“he said that this
wing of the house has always had issues with unreliable
heat”). Based on their credible testimony, I find that
Mrs. Mostashari knew about an unresolved heat problem in the
right wing as a result of this service call.
Mauger characterized the right wing heat as
“intermittent” because it worked unless it was
freezing cold outside. N.T. 8/3/2017-I at 5, 6, 63.
Mauger could not recall what he told Mrs. Mostashari about
the air conditioning other than recommending that the right
wing air conditioning unit be replaced with a heat pump. N.T.
8/3/2017-I at 22; N.T. 8/8/2017-II at 16.
Farivars did not call Oliver for heating issues during the
remainder of the 2013 winter. See P1;
Plaintiffs' Proposed Findings of Fact and Conclusions of
Law (doc. 149) (“Pl. Findings”) ¶
Farivars, however, used portable space heaters in the right
wing to help warm that area. N.T. 8/8/2017 at 33; N.T.
8/9/2017 at 59-60; P34 at 169.
early February, the Farivars informed the Baris that they had
decided not to sell the Home. N.T. 8/3/2017-II at 96. The
Baris emailed the Farivars several times after that to see if
they had changed their minds. Id. at 96-97.
late April 2013, Oliver returned to the Home to check the
three air conditioning units. D116; N.T. 8/3/2017-I at 23.
After replacing the air filters, flushing the drains and
traps, and performing other checks, the technician reported
that all three systems were “operational.” D116.
The technician also recommended upgrading the air filters and
obtaining a new unit in the right wing because it was 28
years old and in poor condition. Id.; N.T.
8/3/2017-I at 23-24.
Farivars did not call Oliver about air conditioning issues
during the summer of 2013. See P1; Pl. Findings ¶
October 2013, Oliver performed an annual service check on the
Home's heating system and determined that it was
operating properly. D118; N.T. 8/3/2017-I at 24-25.
the fall of 2013, the Farivars informed the Baris that they
were moving because Dr. Farivar had obtained a new job in
Minnesota. N.T. 8/3/2017-II at 97. They inquired whether the
Baris were interested in purchasing the Home. See
December 9, 2013, the Farivars called Oliver about the heat.
D119; N.T. 8/3/2017-I at 25. Mauger went to the Home and
noted “no heat right wing” as the reason for the
call on the service ticket. D119; see also N.T.
8/3/2017-I at 25. He stated a “purge” did not
work, three zones in the crawlspace were open, and the main
pipe and radiator on the second floor were hot. D119; see
also N.T. 8/3/2017-I at 25. Mauger said there was either
an “airbound or flow issue” that required an
investigation by the plumbing department and noted that
“this has been an issue dating back before Oliver and
prior owners.” D119; see also N.T. 8/3/2017-I
at 25-26. The service ticket was signed by Dr. Farivar. N.T.
8/8/2017-II at 21. Based on this service call, I find that
Dr. Farivar knew that either an airbound or flow issue
related to the heat in the right wing still needed to be
approximately 4:00 p.m. on December 11, 2013, the Baris met
the Farivars at the Home. P1; N.T. 8/7/2017-II at 42.
Although it was approximately 32-34 degrees Fahrenheit
outside, Mr. Bari did not notice any issues with the heat in
the Home. N.T. 8/7/2017-II at 41-44; D80; D81.
following day, the Farivars provided the Baris with a list of
additions and improvements. N.T. 8/7/2017-I at 44-45; D21.
The list did not note any improvements to the tennis court
lights or the air conditioning ductwork. Id.; N.T.
8/7/2017-I at 46.
December 13, 2013, the Farivars again called Oliver. D120.
Mauger noted on the service ticket that “one boiler
[was] not coming on” because a wire on the relays
attached to the boiler was not connected. D120; N.T.
8/3/2017-I at 28. After he reconnected the wire, both boilers
came on during a cycle. D120. Because Oliver resolved the
heat issue, I find that this service call did not further
alert the Farivars to a defect with the heat.
December 18, 2013, the Farivars provided the Baris a
Sellers' Property Disclosure Statement (“Farivar
SPD”). N.T. 8/3/2017-II at 97; P9A.
Farivar SPD noted the Farivars were required by the
Pennsylvania Real Estate Seller Disclosure Law, 68 Pa. C.S.
§ 7301 et seq. (“RESDL”), to “disclose
to a buyer all known material defects about the property that
are being sold that are not readily observable.” P9A at
Bari3000. It defined material defects as problems “with
a residential real property or any portion of it that would
have a significant adverse impact on the value of the
property or that involves an unreasonable risk to people on
the property.” Id.; see also 68 Pa.
C.S. § 7102. However, “[t]he fact that a
structural element, system or subsystem is beyond the end of
[its] normal useful life . . . is not by itself a material
defect.” P9A at Bari3000; 68 Pa. C.S. § 7102.
Farivar SPD further stated it included “disclosures
beyond the basic requirements of the law in an effort to
assist buyers in evaluating the property” and did not
relieve the Farivars of their “obligation to disclose a
material defect . . . not addressed on [the] form.” P9A
at Bari3000. The SPD, however, “was not a substitute
for any inspection or warranties that [the Baris] may wish to
Farivars stated on the SPD that the Property had one sump
pump, which was in good working order. Id. at
Bari3001. They also were aware of “water leakage,
accumulation, or dampness within the basement or crawl
space” and knew about “repairs or other attempts
to control any water or dampness problem in the basement or
crawl space.” Id. The Farivars explained that
the “basement [was] moist during rain storm [and they]
installed [a] dehumidifier to [the] sump pump.”
Farivars stated they were not aware of any “fire,
storm, water or ice damage to the property.”
Id. They did know about floor damage, and noted the
living room had a 2x3 foot area of warped floorboard.
Farivars said that the heating system was serviced
“under contract” and “fireplaces”
were “an additional and/or backup heating
system.” Id. at Bari3004. The Farivars did not
mention their use of space heaters as an additional and/or
backup heating system. Id.
Farivars stated that they were aware of “problems or
repairs needed” for the heating system, explaining the
“family room heat is intermittent, predates our
purchase, bar room heat is intermittent, guest room above
family room heat [is] cool if very cold.” Id.
Farivars stated that they were not aware of any problems with
the air conditioning. Id. at Bari3005.
Farivars also said they did not know of “any past or
present drainage or flooding problems affecting the property,
” or “any past or present drainage or flooding
mitigation on the property.” Id. at Bari3006.
Farivars stated they were not aware of any other material
defects to the Property. Id. at Bari3008. They
agreed to update the SPD if they learned of “additional
information about the property, including through inspection
reports from a buyer.” Id.
early January 2014, the Farivars spoke with Oliver about
replacing the air conditioning unit with a heat pump, as
Mauger had recommended. N.T. 8/8/2017-II at 16. Oliver
informed the Farivars that it did not carry the appropriate
size heat pump and they should contact another company, such
as Sila Heat and Air Conditioning. Id.
January 16, 2014, Matthew Migliore at Sila provided the
Farivars a work order for a heat pump/air handler
(“heat pump”) for $7, 396. N.T. 8/7/2017- I at
6-7; N.T. 8/8/2017-II at 24-25; P464 at Farivar3404; P472.
few weeks later, on February 4, 2014, the Farivars and Baris,
with the assistance of counsel, entered into an agreement of
sale (“Sale Agreement”) for the Property for $1,
835, 000. N.T. 8/7/2017-II at 67-68, 89-90; D24. Settlement
was scheduled for June 23, 2014. D24 at Bari372.
the Sale Agreement, the Baris elected to undertake several
types of inspections of the Property between March 4 and
March 13, 2017. D24 at Bari376. Within this same period, the
Baris could: (a) accept the Property with the information
stated in the inspection reports and agree to the release in
the Sale Agreement; (b) terminate the Sale Agreement and
obtain a refund of their deposit; or (c) present the
inspection reports to the Farivars with a proposal for
corrections and/or credits. Id.
Farivars agreed to “maintain the Property, grounds,
fixtures and personal property specifically listed in [the]
Agreement in its present condition, normal wear and tear
excepted.” Id. at Bari378. “If any
system or appliance included in the sale of Property [were
to] fail before settlement, ” the Farivars agreed to:
(a) repair or replace the failed system or appliance before
settlement; or (b) provide prompt written notice to the Baris
of their decision to: (i) credit the Baris at settlement for
the fair market value of the failed system or appliance; or
(ii) not repair or replace the failed system or appliance,
and not credit the Baris at settlement. Id. at
Sale Agreement stated that it contained “the whole
agreement between [the parties], and there are no other
terms, obligations, covenants, representations, statements or
conditions, oral or otherwise, of any kind whatsoever
concerning this sale.” Id. at Bari379. It
explained that any representations and claims made by the
Farivars were not part of the Agreement “unless
expressly incorporated or stated in [the] Agreement.”