Rigante, C. & Roth, A. v. Rockford Homes, LLC ( 2022 )

J-A14004-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
CORA RIGANTE AND ADAM S. ROTH : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
ROCKFORD HOMES, LLC : No. 1078 MDA 2021
Appeal from the Judgment Entered August 4, 2021
In the Court of Common Pleas of Lancaster County Civil Division at
No(s): CI-19-02592
BEFORE: BENDER, P.J.E., STABILE, J., and STEVENS, P.J.E.*
MEMORANDUM BY BENDER, P.J.E.: FILED JULY 22, 2022
Cora Rigante (“Rigante”) and Adam S. Roth (“Roth”) (collectively
“Appellants”) appeal from the August 4, 2021 judgment entered in the Court
of Common Pleas of Lancaster County, in favor of Rockford Homes, LLC
(“Rockford”), after the trial court’s partial granting of Rockford’s motion for
judgment on the pleadings and the parties’ resolution of the remaining claim
by joint stipulation. After careful review, we affirm.
The trial court provided the following summary of relevant facts and
procedural history in this matter:
On May 23, 2015, Roth entered into a real estate agreement …
with Rockford, a builder-vendor, for the sale of a newly
constructed home (“Property”).[1] Although Roth was married to
____________________________________________
* Former Justice specially assigned to the Superior Court.
1See Rockford’s Motion for Judgment on the Pleadings, 7/23/20, at Exhibit A
(Standard Agreement for the Sale of Real Estate) (“Agreement”).
J-A14004-22
Rigante at the time he executed the Agreement, Rigante was not
a party to the Agreement and is not listed on the deed that
Rockford subsequently delivered to Roth.
[Appellants] allege that approximately two months after they
moved into the Property, Rigante began to experience “various
symptoms such as cluster headaches, congestion, burning skin
and trouble breathing due to chest pain.” Although [Appellants]
do not allege that, at any time, they had the Property tested for
radon, [Appellants] aver that the “area where the home was
constructed had a high percentage of homes that had high
exposure to radon” and that Rigante has experienced and will
continue to experience pain and suffering because of her
purported exposure to high levels of radon.
The Agreement between Roth and Rockford expressly addresses
the issue of radon. Under the article titled “BUYER’S DUE
DILIGENCE/INSPECTIONS,” the Agreement provides:
RADON: Buyer may obtain a radon test of the Property from
a certified inspector. The U.S. Environmental Protection
Agency (EPA) advises corrective action if the average annual
exposure to radon is equal to or higher than 0.02 working
levels or 4 picoCuries/liter (4pCi/L). Radon is a natural,
radioactive gas that is produced in the ground by the normal
decay of uranium and radium. Studies indicate that
extended exposure to high levels of radon gas can increase
the risk of lung cancer. Radon can find its way into any air-
space and can permeate a structure. If a house has a radon
problem, it usually can be cured by increased ventilation
and/or by preventing radon entry. Any person who tests,
mitigates[,] or safeguards a building for radon in
Pennsylvania must be certified by the Department of
Environmental Protection.
[Agreement at ¶ 12.] Roth expressly waived the right to inspect
for radon by signing his initials under the “waived” column. The
Agreement further states:
RELEASE: Roth releases … and forever discharges Rockford
… from any and all claims, losses or demands, including, but
not limited to, personal injury and property damage and all
of the consequences thereof, whether known or not, which
may arise from … radon … or indoor air quality,
environmental hazards … or any defects or conditions on the
Property.
-2-
J-A14004-22
[Id. at ¶ 28.] Finally, the Agreement establishes that:
All representations … of any kind made by Rockford … are
not a part of this Agreement unless expressly incorporated
or stated in this Agreement. This Agreement contains the
whole agreement between Roth and Rockford, and there are
no other terms, obligations, covenants, representations,
statement[s] or conditions[,] oral or otherwise, of any kind
whatsoever concerning this sale. … Unless otherwise stated
in this Agreement, Roth has inspected the property … before
signing this Agreement or has waived the right to do so, and
agrees to purchase the Property IN ITS PRESENT
CONDITION…. Roth acknowledges that Brokers, their
licensees, employees, officers[,] or partners have not made
an independent examination or determination of the …
environmental conditions … nor of conditions existing in the
locale where the [P]roperty is situated.
[Id. at ¶ 25(A), (B).]
The three-count complaint presently before this court is premised
on [Appellants’] contention that Rockford had knowledge that the
“area” in which the house is located “produced high levels of
radon,” that Rockford nonetheless installed only a “passive radon
system without a fan,” that Rockford represented that “everything
was … in good order in the home,” and that, consequently,
Rockford created “an illusion … that any radon gas was being
vented from the property.” Specifically, [Appellants] allege that:
(1) Rockford breached the implied warranty of habitability by
providing an uninhabitable home; (2) Rockford negligently
misrepresented that the Property was safe and habitable by failing
to disclose that homes in the area were subject to high levels of
radon; and (3) that Rockford violated Pennsylvania’s Unfair Trade
Practices and Consumer Protection Law [(UTPCPL), 73 P.S. §§
201-1 - 201-10,] by making willful and knowing
misrepresentations to induce [Appellants] to contract for the sale
of the Property. On July 23, 2020, Rockford moved for judgment
on the pleadings on all of [Appellants’] claims.
Trial Court Opinion (“TCO”), 1/21/21, at 1-4 (citations to record, unnecessary
capitalization, and some brackets omitted).
-3-
J-A14004-22
After oral argument on Rockford’s motion for judgment on the
pleadings, which was held on October 4, 2020, the trial court directed the
parties to submit supplemental briefs as to: 1) whether Rigante had standing
to bring the asserted claims against Rockford; and 2) whether Appellants had
waived their right to bring a breach of implied warranty of habitability claim
against Rockford. The parties complied. On January 21, 2021, the trial court
issued an opinion and order in which it granted Rockford’s motion as to
Rigante, dismissed all Rigante’s claims, and granted in part and denied in part
the motion as to Roth. Specifically, the trial court granted the motion as to
Roth’s negligent misrepresentation (Count II) and UTPCPL (Count III) claims
and dismissed those counts accordingly. The trial court denied Rockford’s
motion as it related to Roth’s breach of implied warranty (Count I) claim. See
Trial Court Order, 1/21/21 (single page). The parties subsequently entered
into a joint stipulation to resolve the remaining breach of implied warranty
claim (Roth’s Count I) against Rockford. See Joint Stipulation, 7/1/21 (single
page). On August 4, 2021, the trial court issued an order for entry of final
judgment against Roth and in favor of Rockford, in accordance with the
stipulation. See Trial Court Order, 8/4/21 (single page).2
____________________________________________
2 The trial court’s order further stated: “This entry of judgment is a final
judgment that disposes of the entire lawsuit, and any appeal deadlines
commence from the date of this final judgment’s entry on the court docket.”
Id. See Pa.R.A.P. 341(b)(1) (defining a final order as, inter alia, any order
that disposes of all claims and all parties).
-4-
J-A14004-22
On August 16, 2021, Appellants filed a timely notice of appeal, followed
by a timely, court-ordered Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. On September 16, 2021, the trial court issued a
statement, in which it adopted its January 21, 2021 opinion and order as its
Rule 1925(a) opinion. Herein, Appellants present the following issues for our
review:
A. Was the trial court correct to grant … [Rockford’s] motion for
judgment on the pleadings as to Rigante’s claims in Counts I-
III of the complaint for her purported lack of standing in that
she did not sign and was not a party to the real estate sales
contract, when case law from this Court and the Pennsylvania
Supreme Court has found standing in similar if not identical
circumstances?
B. Was the trial court correct to hold that standard, pre-printed
language in the real estate sales contract, a pre-printed form
used universally for residential real estate sales in
Pennsylvania, bars both Appellants’ claims because of language
purportedly releasing [Rockford] … from liability for radon-
related injuries or because of an integration clause found in
that same standard, universally used contract?
Appellants’ Brief at 4 (unnecessary capitalization omitted).3
____________________________________________
3 While we recognize that Appellants’ claims relate to the trial court’s January
21, 2021 order, we note that this appeal properly lies from the trial court’s
August 4, 2021 order. As indicated supra, the August 4, 2021 order reduced
the parties’ joint stipulation regarding the sole remaining claim to judgment
and, thus, constituted a final order. See Pa.R.A.P. 341(b)(1). Consequently,
the trial court’s January 21, 2021 interlocutory order merged into the August
4, 2021 final order and is now reviewable. See Commonwealth v. Fulmore,
25 A.3d 340, 345 (Pa. Super. 2011) (stating that “the merger rule merges
into a final judgment all prior non-final orders for purposes of appellate
review”); Quinn v. Bupp, 955 A.2d 1014, 1020 (Pa. Super. 2008)
(“[I]nterlocutory orders that are not subject to immediate appeal as of right
… become reviewable on appeal upon the trial court’s entry of a final order.”)
(citations and brackets omitted).
-5-
J-A14004-22
We review Appellants’ claims mindful of the following well-settled
principles:
The standard to be applied upon review of a motion for
judgment on the pleadings accepts all well-pleaded
allegations of the complaint as true. The question presented
by the demurrer is whether, on the facts averred, the 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.
Tucker v. Philadelphia Daily News, … 848 A.2d 113, 131 ([Pa.]
2004) (citation and internal quotation marks omitted).
Entry of judgment on the pleadings is permitted under
Pa.R.C[iv].P. 1034[,] which provides for such judgment
after the pleadings are closed, but within such time as not
to delay trial. A motion for judgment on the pleadings is
similar to a demurrer. It may be entered when there are no
disputed issues of fact and the moving party is entitled to
judgment as a matter of law. In determining if there is a
dispute as to facts, the court must confine its consideration
to the pleadings and relevant documents. The scope of
review on an appeal from the grant of judgment on the
pleadings is plenary. We must determine if the action of the
court below was based on clear error of law or whether there
[were] facts disclosed by the pleadings which should
properly go to the jury.
Citicorp North America, Inc. v. Thornton, 707 A.2d 536, 538
(Pa. Super. 1998) (citations omitted). Likewise,
[o]ur scope and standard of review in appeals of a grant or
denial of a motion for judgment on the pleadings is well-
settled. This Court applies the same standard as the trial
court and confines its consideration to the pleadings and
documents properly attached thereto. We review to
determine whether the trial court’s action respecting the
motion for judgment on the pleadings was based on a clear
error of law or whether there were facts disclosed by the
pleadings which should properly go to the jury. We will
affirm the grant of judgment on the pleadings only if the
moving party’s right to succeed is certain and the case is so
-6-
J-A14004-22
free from doubt that trial would clearly be a fruitless
exercise.
Municipality of Mt. Lebanon v. Reliance Ins. Co., 778 A.2d
1228, 1231 (Pa. Super. 2001) (citations and quotation marks
omitted).
Donaldson v. Davidson Bros., Inc., 144 A.3d 93, 100-01 (Pa. Super.
2016).
Here, Appellants claim the trial court erred in ruling that Rigante lacked
standing to bring any of her claims against Rockford, because she was not a
party to the Agreement. Appellants’ Brief at 8. With respect to her breach of
implied warranty of habitability claim, Appellants aver that the right to bring
such a claim does not arise from a contract. Rather, they assert that the
implied warranty is operational by law and that it applies even in the complete
absence of a contract. Id. at 10 (citing Tyus v. Resta, 476 A.2d 427 (Pa.
Super. 1984); Elderkin v. Gaster, 288 A.2d 771 (Pa. 1972)). As a purported
“interested party who was known to Rockford[,]” they argue that Rigante’s
claim for breach of the implied warranty of habitability was valid. Id.Similarly, Appellants assert that one does not need to sign a contract to avail
herself of the protections of the UTPCPL, as the UTPCPL is applicable not only
to a purchaser, but also to a “foreseeable user.” Id. at 10-11 (citing Johnson
v. MetLife Bank, 883 F.Supp.2d 542 (E.D.Pa. 2012)).4 They state that
____________________________________________
4 “While we recognize that federal district court cases are not binding on this
[C]ourt, Pennsylvania appellate courts may utilize the analysis in those cases
to the extent we find them persuasive.” Umbelina v. Adams, 34 A.3d 151,
159 n.2 (Pa .Super. 2011) (citations omitted).
-7-
J-A14004-22
Rigante was a foreseeable user of the Property because she is married to Roth
and lives with him. Id. at 11.
Additionally, Appellants aver that Rigante stated a valid claim for
negligent misrepresentation. Id. They allege that deception can be effected
by action or inaction, and that “Rockford knew or had reason to know of the
radon problems in the house it had built for [Appellants, yet it] failed to
disclose those problems.” Id. They further aver that a spouse who intends
to live in a new home is just as vulnerable to negligent misrepresentation as
is the spouse who actually signed the contract. Instantly, they claim “it is []
Rigante who suffered the debilitating effects of the radon present in the house,
a house that Rockford knew she was going to occupy.” Id. Appellants
conclude that the absence of Rigante’s signature on the Agreement “is a
legally insignificant fact.” Id. No relief is due on this claim.
First, as the trial court so aptly explained with respect to Appellants’
breach of implied warranty claim:
An implied warranty of habitability (“Warranty”) exists in every
contract for the sale of a new home from a builder-vendor to a
residential purchaser. Pontiere v. James Dinert, Inc., 627 A.2d
1204, 1206 (Pa. Super. 1993) (citing Elderkin[, supra]). This
well-settled principle gives rise to the equally well-established rule
that “an action for breach of the [Warranty] requires
contractual privity between the parties.” Conway v. Cutler
Group, Inc., 99 A.3d 67, 73 (Pa. 2014).[5] The Warranty’s
____________________________________________
5 In the case sub judice, Appellants’ reliance on Tyus, supra, and Elderkin,
supra, in support of their position that Rigante had standing to bring a breach
of Warranty claim, as the implied warranty of habitability applies even in the
(Footnote Continued Next Page)
-8-
J-A14004-22
mooring to contractual privity is further evidenced by the
limitation on the type of damages that can be sought under a[]
breach of Warranty theory: “a breach of the implied warranty of
habitability represents a contract claim for which only contract
remedies are available and not a tort claim for which personal
injury damages are available.” Echeverria v. Holley, 142 A.3d
29, 35 (Pa. Super. 2016); see also Gadbois v. Leb-Co.
Builders, Inc., 458 A.2d 555, 557 (Pa. Super. 1987) (noting that
the proper measure of damages “in cases where a homeowner
sues for defective construction,” including in a breach of Warranty
case, is generally “the difference between the market value of the
house as contracted and the market value that the house would
have had if constructed as promised”)….
[Appellants] admit that Roth was the sole purchaser of the
Property and that Rigante has no contractual privity with
Rockford.[6] Rigante consequently lacks any basis to recover the
contract damages—specifically, the cost of repairs occasioned by
Rockford’s purported breach—that are available under a breach of
Warranty theory. The [c]omplaint makes it clear that Rigante is
instead seeking personal injury damages even though, as noted
above, personal injury damages cannot be recovered under a
breach of Warranty theory. For these reasons, Rigante is an
improper party to assert a breach of Warranty claim against
Rockford….
____________________________________________
complete absence of a contract, is misplaced. See Appellants’ Brief at 10. In
Elderkin, the Court acknowledged an implied warranty of habitability in
contracts whereby builder-vendors sold newly constructed houses. Elderkin,
288 A.2d at 777. Subsequently, in Tyus, we considered whether the implied
warranty can be limited or disclaimed by builder-vendors selling new homes.
Tyus, 476 A.2d at 431-32. In each of these cases, the parties had entered
into a contract for the purchase of a new home, and neither case discussed
the issue of standing. See also Conway, 99 A.3d at 70 (emphasizing that
the holding in Elderkin “was rooted in the existence of a contract—an
agreement of sale—between the builder-vendor of a residence and the
purchaser-resident”).
6 See Appellants’ Answer to Motion for Judgment on the Pleadings, 8/21/20,
at 1 ¶¶ 2-3.
-9-
J-A14004-22
TCO at 5-7 (emphasis added; citations to record omitted). We agree. Hence,
we conclude that the trial court properly granted judgment on the pleadings
with respect to Rigante’s breach of Warranty claim. Id. at 7.
Regarding Appellants’ UTPCPL claim, the trial court opined:
Pennsylvania’s [UTPCPL] “seeks to prevent ‘unfair methods of
competition and unfair or deceptive acts or practices in the
conduct of any trade or commerce.’” Bennnett v. A.T.
Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145, 151
(Pa. Super. 2012) (quoting 73 P.S. § 201-3). The UTPCPL
provides a private right of action for “[a]ny person who purchases
… goods … primarily for personal, family or household purposes
and thereby suffers any ascertainable loss” from unlawful trade
practices. 73 P.S. § 201-9.2(a).
The statutory language is clear: [T]o have standing to bring a
UTPCPL claim, the plaintiff must be a purchaser. Id. Although
“strict” or “direct technical privity” of contract between the plaintiff
and defendant is not required to assert a UTPCPL claim, the
defendant must have specifically intended the plaintiff to rely on
its fraudulent conduct or must have specifically foreseen the
plaintiff’s reasonable reliance on such conduct. Valley Forge
Towers S. Condominium v. Ron-Ike Foam Insulators, Inc.,
574 A.2d 641, 647 (Pa. Super. 1990). Functionally, therefore, the
plaintiff must, at a minimum, have had commercial dealings with
the defendant. Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 57
(3d. Cir. 1992);[7] Johnson v. MetLife Bank, N.A., 883 F.Supp.
2d 542, 547-48 (E.D. Pa. 2012).
Instantly, [Appellants] frame Rigante as an “interested party who
was known to Rockford” and who was a “foreseeable user” of the
home. Both assertions are irrelevant to the standing rules set
forth above[. I]nstead, the record is clear that Rigante neither
purchased anything from nor had any commercial dealings with
Rockford. Rigante has, therefore, failed to plausibly argue that
Rockford specifically intended her to rely on its purportedly
____________________________________________
7 See Katz, 972 F.2d at 57 (noting that “although strict privity is not always
an element of the private cause of action,” standing does not extend to “a
plaintiff lacking any commercial dealings with the defendant”).
- 10 -
J-A14004-22
fraudulent conduct or that Rockford specifically foresaw her
reliance on its allegedly fraudulent conduct.
Id. at 13-14 (emphasis in original). Moreover, we note that Appellants’
reliance on Johnson v. MetLife Bank, N.A., supra, ignores the fact that the
plaintiff in that case purported to be heavily involved in the transaction with
MetLife and averred that he was led to believe he was a borrower on the loan.
Johnson, 883 F.Supp.2d at 547. See also id. at 548 (noting that where no
direct privity exists, the plaintiff can establish standing by putting forth
evidence that he had commercial dealings with the defendant, that the
defendant misled him during those commercial dealings knowing that he
might rely on the misrepresentations, and that he ultimately made a purchase
as a result of the misrepresentations). The pleadings in the instant matter
contain no such allegations, and Appellants have failed to provide any
evidence to establish that Rigante was involved in commercial dealings with
Rockford. Hence, we agree with the trial court that Rigante lacked standing
under the UTPCPL.
As to Appellants’ negligent misrepresentation claim, the trial court
opined:
A common law negligent misrepresentation claim “requires proof
of: (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 another party acting in justifiable
reliance on the misrepresentation.” Bortz v. [N]oon, 729 A.2d
555, 561 (Pa. 1999) (emphasis supplied). It is axiomatic that to
bring a viable negligent misrepresentation claim, Rigante must
aver that she personally acted in reliance on the alleged
misrepresentation. However, the record is clear that Roth alone
- 11 -
J-A14004-22
purchased the Property from Rockford. Rigante fails to allege that
she took any legally cognizable action in reliance upon Rockford’s
alleged misrepresentations.
TCO at 9-10 (emphasis in original). Thus, we agree that Rigante’s negligent
misrepresentation claim against Rockford “plainly fails.” Id. at 10. Based on
the foregoing, we determine that the trial court properly dismissed all of
Rigante’s claims due to lack of standing.
In their second claim, Appellants aver that the trial court erred in
determining their claims were barred by language in the Agreement—namely,
the language releasing Rockford from liability for radon-related injuries and
the integration clause. Appellants’ Brief at 8-9. They argue that such
language is “legally irrelevant[,]” based once again on the faulty premise that
the implied warranty of habitability does not arise from a contract. Id. at 12.
Additionally, Appellants assert that the viability of their breach of Warranty
claim depends on whether the defect at issue was readily visible to them at
the pre-purchase phase. Id. at 8. They state that “if the defects in the home
cannot be detected by reasonable inspection, those defects are considered
latent, bringing the implied warranty of habitability … into play…. [L]atent
defects render release language and integration language unenforceable.” Id.
at 13. Appellants note that the issue in the present matter is radon, asserting
that radon is “[o]bviously … not visible” and that one cannot detect an
unhealthy concentration of radon by reasonable inspection. Id. Thus, they
conclude that Rockford’s motion for judgment on the pleadings should have
been denied. Id.
- 12 -
J-A14004-22
First, given our disposition on the trial court’s dismissal of Rigante’s
claims, we need not address this issue as it relates to Rigante. See Orfield
v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012) (“Our courts cannot decide
moot or abstract questions….”) (internal quotation marks and citation
omitted). Therefore, we consider Appellants’ claim only as it relates to the
causes of action raised by Roth.
Next, we observe that Appellants’ argument focuses solely on the trial
court’s determination that their breach of Warranty claim was barred by
the release language and integration clause in the Agreement and contains no
mention of the trial court’s decision as it relates to Roth’s negligent
misrepresentation and UTPCPL claims. This is puzzling, as the trial court
denied Rockford’s motion for judgment on the pleadings as to Roth’s
breach of Warranty claim. It is Roth’s negligent misrepresentation and
UTPCPL claims that were dismissed by the trial court and should therefore be
the subject of their argument on appeal. Notwithstanding, Appellants aver
that the trial court’s interpretation of the radon release and integration clause
led it to dismiss Roth’s breach of Warranty claim. Appellants’ Brief at 8. This
is a bald, misstatement of fact. In fact, the record reflects that the trial court
agreed with Appellants and construed radon, for the purposes of deciding the
motion for judgment on the pleadings, as a “latent defect that falls within the
ambit of the implied warranty’s protections.” TCO at 7 n.2. Accordingly, the
trial court determined that Roth’s breach of Warranty claim would survive
judgment on the pleadings. Hence, we deem this claim as it relates to Roth’s
- 13 -
J-A14004-22
breach of Warranty claim to be moot. See Orfield, 52 A.3d at 277 (“Our
courts cannot decide moot or abstract questions….”) (internal quotation marks
and citation omitted).
To the extent that Appellants’ second issue implies the trial court erred
in concluding that the Agreement barred Roth’s negligent misrepresentation
and UTPCPL claims, we deem this claim waived due to Appellants’ failure to
develop their argument. See Estate of Haiko v. McGinley, 799 A.2d 155,
161 (Pa. Super. 2002) (“The Rules of Appellate Procedure state unequivocally
that each question an appellant raises is to be supported by discussion and
analysis of pertinent authority.”); Pa.R.A.P. 2119(a). “Appellate arguments
which fail to adhere to these rules may be considered waived, and arguments
which are not appropriately developed are waived. Arguments not
appropriately developed include those where the party has failed to cite any
authority in support of a contention.” Lackner v. Glosser, 892 A.2d 21, 29-
30 (Pa. Super. 2006) (citations omitted). Instantly, Roth does not explain
how the trial court erred in determining that these two claims were barred by
the release language and/or the integration clause in the Agreement. In fact,
Roth does not even mention either of these causes of action in the argument
section of his brief, and we decline to craft the argument for him. Coulter v.
Ramsden, 94 A.3d 1080, 1088 (Pa. Super. 2014).
Nonetheless, even if the second issue as it pertains to Roth’s Counts II and
III had not been waived, we would conclude that Appellants’ argument is
meritless. As the trial court opined:
- 14 -
J-A14004-22
To recover under a negligent misrepresentation theory, Roth must
be able to show, inter alia, that he justifiably relied on Rockford’s
purported misrepresentations. [Bortz, 729 A.2d at 561.] Well-
settled Pennsylvania precedent clearly establishes, however, that
to the extent Roth relied upon any representations made by
Rockford, his reliance was unjustifiable such that no recovery on
a negligent misrepresentation claim is possible.
Pennsylvania’s growing body of “real estate inspection”
jurisprudence governs matters that, like the instant action,
involve residential buyers who sign integrated real estate
agreements and later allege that the sellers made oral
representations about the property that “proved to be untrue.”
1726 Cherry Street Partnership by 1726 Cherry Street
Corp. v. Bell Atlantic Properties, Inc., 653 A.2d 663, 670 n.6
(Pa. Super. 1995). These cases call for a “somewhat different
approach” to a strict application of the [p]arol [e]vidence [r]ule
and abandon blind adherence to the maxim that “a party cannot
justifiably rely upon prior oral representations yet sign a contract
denying the existence of those representations.” 1726 Cherry
Street, 653 A.2d at 670 n.6; Blumenstock v. Gibson, 811 A.2d
1029, 1036 (Pa. Super. 2002).5 Instead, the relevant rule
governing the admissibility of alleged pre-contractual
representations—and thus defining the ultimate viability of a
misrepresentation claim—is as follows: in a “real estate
inspection” case, the court must
balance the extent of the residential purchaser’s knowledge
of objectionable conditions derived from a reasonable
inspection against the extent of coverage of the contract’s
integration clause in order to determine whether the
residential purchaser could justifiably rely upon oral
representations without insisting upon further contractual
protection or the deletion of an overly broad integration
clause.
LeDonne v. Kessler, 389 A.2d 1123, 1130 (Pa. Super. 1978).
5 The Superior Court has indicated that this “somewhat
different approach” was “crafted because the court realizes
that … unsophisticated buyers of residential real estate[] are
pragmatically incapable of fully ascertaining the physical
condition of the property they are buying” such that the
court has refused to strictly enforce the parol evidence rule.
1726 Cherry Street…, 653 A.2d [at] 670 n.6….
- 15 -
J-A14004-22
[We] can imagine a case where the facts relevant to making a
determination of “justifiable reliance” are simply too close to call
at the judgment on the pleadings stage. That case, however, is
not presently before [the court]. The Agreement plainly disclosed
that radon can find its way into any air-space and can permeate a
structure[;] it allowed Roth to inspect the Property for its
presence[;] and it permitted Roth to terminate the Agreement if
the inspection yielded problematic results. There is no dispute
that Roth was fully knowledgeable about the potential existence
of radon in the Property and that he chose to waive the right to
confirm or deny its existence by performing a radon test.
Further, the Agreement contains a release of all claims provision
specifically discharging Rockford from any liability for radon-
related personal injury or property damage and sets forth a
comprehensive integration clause that makes it patently clear
that: the Agreement contains the entire agreement between Roth
and Rockford; Roth inspected the [P]roperty or waived his right to
do so; Roth purchased the Property in its present condition; and
Roth acknowledged that no party made an independent
examination of the environmental conditions or conditions in the
locale where the Property is situated.
The “real estate inspection” cases seek to offer heightened
protection to residential purchasers who “simply could not entirely
protect themselves from the harm they eventually suffer.” 1726
Cherry Street, 653 A.2d at 670 n.6. The cases do not excuse
residential purchasers from being held to “the reasonable meaning
of their … words” or allow residential purchasers to seek relief that
would “render the words of the contract meaningless.” Lenihan
v. Howe, 674 A.2d 273, 276 (Pa. Super. 1996). Balancing the
applicable factors, the law states with certainty that Roth did not
reasonably rely on any purported radon-related misrepresentation
of Rockford and that Roth cannot recover under a negligent
misrepresentation theory.
TCO at 10-12 (some brackets omitted; emphasis in original).
Regarding Roth’s UTPCPL claim, the trial court opined:
“Justifiable reliance is an element of all private claims under the
UTPCPL.” Kern v. Lehigh Valley Hosp., Inc., 108 A.3d 1281,
1287 (Pa. Super. 2015). Accordingly, a plaintiff asserting a
private action under the UTPCPL must show that “he justifiably
relied on the defendant’s wrongful conduct or representation and
- 16 -
J-A14004-22
that he suffered harm because of the reliance.” Yocca v.
Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 438 (Pa.
2004). As fully analyzed above, the law is clear that Roth cannot
prove that he justifiably relied upon any pre-contractual
representations made by Rockford. Roth cannot, therefore,
recover on his UTPCPL claim….
TCO at 14. We would discern no error of law in the trial court’s decision to
grant judgment on the pleadings regarding Roth’s Counts II and III.
In conclusion, we affirm the trial court’s January 21, 2021 order,
granting Rockford’s motion for judgment on the pleadings as to Rigante and
granting in part and denying in part Rockford’s motion for judgment on the
pleadings as to Roth. Additionally, we affirm the judgment entered on August
4, 2021, in favor of Rockford.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 07/22/2022
- 17 -