J-A29024-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CAMERON BOBBETT AND DENA                        IN THE SUPERIOR COURT OF
BOBBETT,                                              PENNSYLVANIA

                          Appellants

                     v.

ALFONSO A. FOSCO AND JUDITH L.
FOSCO,

                          Appellee                   No. 320 WDA 2014


              Appeal from the Order entered January 23, 2014,
             in the Court of Common Pleas of Allegheny County,
                  Civil Division, at No(s): GD 12-02-021868


BEFORE: FORD ELLIOTT, P.J.E., ALLEN, and STRASSBURGER*, JJ.

MEMORANDUM BY ALLEN, J.:                        FILED DECEMBER 03, 2014

      Husband and wife, Cameron and Dena Bobbett, (“Appellants”), appeal

from the trial court’s grant of judgment on the pleadings in favor of Alfonso

A. and Judith L. Fosco, husband and wife, (“Sellers”). We affirm.

      The trial court detailed the posture and factual background relative to

this action as follows:

             In this case, [Sellers] seek Judgment on the Pleadings
      against [Appellants], on the basis of the running of the statute of
      limitation.

            The issue arises in a context in which [Appellants] bought
      a residential dwelling from [Sellers]. [Sellers] in the required
      real estate sale disclosure form said that there were no problems
      with the sewer system. The sale then closed on July 11, 2005.
      [Appellants] suffered sewer back ups in December 2005 and July



*Retired Senior Judge assigned to the Superior Court.
J-A29024-14


     2009. [Appellants] characterize[] these back ups as “isolated”, a
     careful lawyer-like way of pleading. Whether “isolated” or not,
     such an occurrence should have given cause for them to check
     further.

           Indeed, no further back ups occurred and [Appellants]
     brought this suit only after a plumber, in September 2011, told
     them that [Sellers], while owning the property, had experienced
     back ups between July 2004 and March 2005. It is on this basis
     that [Appellants] filed suit on November 19, 2012.

           Part of the claim includes a demand for $19,400 for repair
     of the alleged blockage. Interestingly, included is the installation
     of a new 3/4" copper water line. I see nothing in the complaint
     or the disclosure form that warrants any water line repair. While
     it may be cost effective to use the same trench for sewer and
     water, the same has not been disclosed or the appropriate
     reduction made.

           [Sellers] ha[ve] filed an Answer and New Matter to the
     Complaint, quoting exculpatory language in the sales agreement,
     to wit, Section 1-02 with regard to Representation and Release,
     Para. 55 through 58. [Sellers] ha[ve] also raised the two year
     statute of limitations applicable to Real Estate Disclosures. (Para
     62 through 66)[.]

           At Argument, [Appellants] asserted that the two year
     statute of limitations has been tolled by the “discovery rule”. In
     essence they discovered the non-disclosure only in September
     2011 when a plumber told them he had serviced the sewer line
     on multiple occasions in 2004 and 2005. Therefore, they filed
     timely with the two year statute.

           In support of their argument, [Appellants] cite[] Fine v.
     Checcio, 870 A.2d 850 at 861, for the proposition that a Statute
     of Limitations tolled by Fraud “...begins to run when the injured
     party knows or reasonably should know of his injury and its
     cause.”

Trial Court Memorandum Order, 1/23/14, at 1-2.

     On June 13, 2013, Appellants filed a reply to Sellers’ answer and new

matter.   On September 13, 2013, Sellers moved for judgment on the



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pleadings. On December 9, 2013, Appellants filed their response to Sellers’

motion on the pleadings.     On January 22, 2014, the trial court issued a

memorandum order, which was docketed on January 23, 2014, granting

judgment on the pleadings in Sellers’ favor and against Appellants.          On

February 20, 2014, Appellants filed a notice of appeal. The trial court did

not enter an order directing Appellants to file a concise statement of errors

complained of on appeal.     On February 27, 2014, the trial court indicated

that “having previously authored a Memorandum Order … no additional or

supplemental opinion will be filed.” Rule 1925(a) Statement, 2/27/14, at 1.

      Appellants present the following issues for our review:

      A. The Court committed an error of law and/or abused its
      discretion in granting the Motion for Judgment on the Pleadings.
      The question of whether Appellants failed to exercise reasonable
      diligence in ascertaining their injury and the cause of their injury
      is not free and clear from doubt, therefore further discovery and
      determination by a jury of whether reasonable diligence was
      exercised are necessary.

      B. The Court committed an error of law and/or abused its
      discretion in granting the Motion for Judgment on the Pleadings.
      The Court should have directed Appellants to file an amended
      pleading or, in the alternative, the Court should have awaited
      completion of discovery and decided whether Appellants claims
      were time barred on a motion for summary judgment.

Appellant’s Brief at 4.

      Both of Appellants’ issues challenge the trial court’s grant of judgment

on the pleadings in favor of Sellers, and therefore, we address them

together. We recognize:




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      [A]ppellate review of a trial court’s decision to grant or deny
      judgment on the pleadings is limited to determining whether the
      trial court committed an error of law or whether there were facts
      presented which warrant a jury trial. In conducting this review,
      we look only to the pleadings and any documents properly
      attached thereto. Judgment on the pleadings is proper only
      where the pleadings evidence that there are no material facts in
      dispute such that a trial by jury would be unnecessary.

      In passing on a challenge to the sustaining of a motion for
      judgment on the pleadings, our standard of review is limited.
      We must accept as true all well pleaded statements of fact of the
      party against whom the motion is granted and consider against
      him only those facts that he specifically admits. We will affirm
      the grant of such a motion only when the moving party’s right to
      succeed is certain and the case is so free from doubt that the
      trial would clearly be a fruitless exercise.

Erie Ins. Exchange v. Conley, 29 A.3d 389, 391-391 (Pa. Super. 2011)

(internal citation omitted).

      Instantly, in granting judgment on the pleadings in favor of Sellers,

the trial court reasoned:

             [Appellants] first had knowledge in December 2005 that
      there was something in the sewer line that caused it to back up.
      That cause was never explored. Similarly, in July 2009, three
      and a half years later there was a back up. But no cause
      determined, and no investigation. Two years later a plumber
      told them of a history of back ups in 2004 and 2005, but they
      were experiencing no back up then. He, the plumber, was there
      for installation of a sink disposal. There was no back up at that
      time. Thereafter, [Appellants] made no investigation of the
      cause of the back up in July 2009 or in September 2011. [They]
      merely assumed it was the same cause that had brought the
      plumber there in 2004 and 2005.

             While counsel has tried to avoid the implications of the
      2005 and 2009 back ups, they cannot be written off as
      “isolated”. What could be less isolated than backed up sewage
      in your basement? What also is unanswered is what is the
      present cause, if any. The plumber who disclosed the history is


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      NOT the entity seeking to install the new sewer and water line.
      Further, based on the pleadings, the sewer line continues to run
      free.

             I believe the failure to show the cause of the back up is
      fatal to [Appellants’] claim. The sewer problem last occurred in
      July 2009 and we do not know the cause. Is it a cracked or
      collapsed line, or one filled with tree roots, or clogged due to
      diapers, a child's toys, excess paper or the like? I do not believe
      [Appellants] ha[ve] alleged enough to meet the discovery
      standard. Thus, the Motion for Judgment on the Pleadings for
      [Sellers] is granted.

Trial Court Memorandum Order, 1/23/14, at 2-3 (underline in original).

      Based on our careful scrutiny of the pleadings and applicable

jurisprudence, we affirm the trial court’s order granting judgment on the

pleadings in favor of Sellers and against Appellants.

      On November 16, 2012, Appellants filed a complaint against the

Sellers pleading the following causes of action:    1) breach of contract, 2)

fraud, misrepresentation, and negligent misrepresentation, and 3) violation

of the Unfair Trade Practices and Consumer Protection Law. See generally,

Appellants’ Complaint, 11/16/12.

      Appellants’ complaint “ar[ose] out of the purchase and sale of real

property located at 4904 Bayard Street, Pittsburgh, Allegheny County,

Pennsylvania 15213 (the “Property”)[.]” Id. at 1 (unnumbered). Appellants

averred that “[o]n or about April 21, 2005, [Appellants] and [Sellers]

entered into a written Standard Agreement for the Sale of Real Estate for

the purchase and sale of the Property (“Sales Agreement”).” Id. Appellants

further averred that on the same date, “[Sellers] provided [Appellants] with



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a West Penn Multi-List Seller Disclosure Statement[,] which appears to have

been prepared and signed by [Sellers] on August 19, 2004.”          Id. at 1-2

(unnumbered).     Appellants stated that the Seller Disclosure Statement

provides in pertinent part that “[Sellers] were not aware of any water

leakage, accumulation or dampness within the basement, garage or crawl

space.”    Id. at 2 (unnumbered), citing Exhibit B- Seller Disclosure

Statement,    Paragraph   4(b),   Basements,   Garages    and   Crawl   Spaces.

Appellants additionally stated that the Seller Disclosure Agreement provided

that “[Sellers] were not aware of any leaks, backups or other problems

relating to any of the plumbing, water and sewage-related items.” Id. citing

Exhibit B- Seller Disclosure Statement, Paragraph 8(h), Water and Sewage.

Appellants averred, “[o]n July 11, 2005, the parties closed on the

transaction for the purchase and sale of the Property.”

      Appellants’ complaint additionally averred:

      12. [Appellants] experienced an isolated sewage back up in
      December 2005 and then again in July 2009. [Appellants] have
      not altered the landscaping or caused any change in the
      conditions which would affect the Property’s main sewer line.

      13. [Appellants] have recently experienced significant problems
      with the sewage discharge system at the Property resulting in an
      extremely unpleasant odor[,] and sewage water backing up into
      the basement laundry room.

      14. In September 2011, [Appellants] required the services of a
      plumber to install a garbage disposal. The plumber, who worked
      for F.E. Johanssen & Sons, Inc. during the period July 2004 and
      March 2005, stated that he had been familiar with the Property
      and … he had been to the Property many times to snake out the
      main sewer line in the basement for [Sellers].


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     15. [Appellants] w[ere] thereafter provided with copies of F.E.
     Johanssen & Sons, Inc. work orders dated July 28, 2004 (2),
     September 21, 2004, February 24, 2005 and March 29, 2005.

     16. The … work orders are for clearing the main sewer line.

                                    ***

     20. On February 16, 2012, [Appellants] were informed by Lerco
     Building Contractors that they were going to have to have … a
     new 4” PVC sewer pipe and ¾” copper water pipe installed from
     the street to the connection point in their basement. This
     corrective measure will repair the damage to their sewer lines
     which has been present since the time [Sellers] sold the Property
     to [Appellants]. This condition is hereinafter called a Material
     Defective Condition.

Appellants’ Complaint, 11/16/12, at 2-3 (unnumbered).

     Appellants’ breach of contract claim against Sellers alleged that “[t]he

Sales Agreement, as well as the representations relied upon [by Appellants,]

which were made in the Seller Disclosure Statement, created a contractual

duty, owed by [Sellers], to sell the Property in conformity with the Sales

Agreement     and   the   representations    made   in   the   Seller   Disclosure

Statement.”   Id. at 4 (unnumbered).        Appellants additionally alleged that

Sellers “materially breached the Sales Agreement and Seller Disclosure

Statement” in “a wrongful, untruthful and negligent manner,” by failing to

“disclose [the Property’s] Material Defective Condition.”               Id. at 5

(unnumbered).

     Appellants’ cause of action for fraud, misrepresentation, and negligent

misrepresentation against Sellers was based on Sellers “fail[ure] to disclose

the known Material Defective Condition on the Seller Disclosure Statement,”



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and Sellers’ “affirmative[] represent[ation] that [Sellers] were not aware of

any leaks, backups or other problems relating to any plumbing, water and

sewage related items.” See id. at 5-7 (unnumbered).

      Appellants’ claim against Sellers for violating the Unfair Trade Practices

and Consumer Protection Law, (“UTPCPL”), alleged that Sellers “engaged in

fraudulent and deceptive conduct which created a likelihood of confusion or

of misunderstanding regarding the Material Defective Condition involving the

Property in general, [inter alia.] See id. at 7-8 (unnumbered).

      The Seller Disclosure Agreement provides in pertinent part:

            A Seller must disclose to a Buyer all known material
      defects about the Property being sold that are not readily
      observable. []

             This statement discloses the Seller's knowledge of the
      condition of the Property as of the date signed by the Seller and
      is not a substitute for any inspections or warranties that the
      Buyer may wish to obtain. This statement is not a warranty of
      any kind by the Seller or a warranty or representation by any
      listing real estate broker, any selling real estate broker or their
      agents. [] This statement does not relieve the Seller of the
      obligation to disclose a material defect that may not be
      addressed on this form.

                                    ***

            A material defect is a problem with the Property or any
      portion of it that would have a significant adverse impact on the
      value of the residential real Property or that INVOLVES AN
      UNREASONABLE RISK TO PEOPLE ON THE LAND.

Id., Exhibit B-Seller Disclosure Statement, at 1 (emphasis in original).

      The   Pennsylvania   Real   Estate   Disclosure   Law,   which   governs

Appellants’ claims concerning Sellers’ failure to disclose a materially


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defective condition within the Seller Disclosure Statement, provides in

pertinent part as follows:

      § 7309. Nonliability of seller

      (a) General rule.--A seller shall not be liable for any error,
      inaccuracy or omission of any information delivered pursuant to
      this chapter if:

      (1) the seller had no knowledge of the error, inaccuracy or
      omission;

      (2) the error, inaccuracy or omission was based on a reasonable
      belief that a material defect or other matter not disclosed had
      been corrected[.]

                                    ***

      § 7311. Failure to comply

      (a) General rule.--A residential real estate transfer subject to
      this chapter shall not be invalidated solely because of the failure
      of any person to comply with any provision of this chapter.
      However, any person who willfully or negligently violates or fails
      to perform any duty prescribed by any provision of this chapter
      shall be liable in the amount of actual damages suffered by the
      buyer as a result of a violation of this chapter. This subsection
      shall not be construed so as to restrict or expand the authority of
      a court to impose punitive damages or apply other remedies
      applicable under any other provision of law.

      (b) Statute of limitations.--An action for damages as a result
      of a violation of this chapter must be commenced within two
      years after the date of final settlement.

68 Pa.C.S.A. §§ 7309(a)(1)-(2) and 7311(a)-(b).

      Appellants’ additional claims against Sellers concerning breach of

contract, fraud, misrepresentation, negligent misrepresentation, and for

violating the UTPCPL, are subject to the following statutes of limitations:




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      § 5524. Two year limitation

      The following actions and proceedings must be commenced
      within two years:

                                     ***

      (7) Any other action or proceeding to recover damages for injury
      to person or property which is founded on negligent, intentional,
      or otherwise tortious conduct or any other action or proceeding
      sounding in trespass, including deceit or fraud, except an action
      or proceeding subject to another limitation specified in this
      subchapter.

                              ************

      § 5525. Four year limitation

      (a) General rule. Except as provided for in subsection (b), the
      following actions and proceedings must be commenced within
      four years:

      (1) An action upon a contract, under seal or otherwise, for the
      sale, construction or furnishing of tangible personal property or
      fixtures.

                              ************

      § 5527. Six year limitation

      (b) Other civil action or proceeding.--Any civil action or
      proceeding which is neither subject to another limitation
      specified in this subchapter nor excluded from the application of
      a period of limitation by section 5531 (relating to no limitation)
      must be commenced within six years.

42 Pa.C.S. §§ 5524(7), 5525(a)(1), and 5527(b); see also Gabriel v.

O’Hara, 534 A.2d 488, 496 (Pa. Super. 1987) (six year statute of limitation

under 42 Pa.C.S. § 5527(b) applicable to UTPCPL claims for failure to

disclose defects pertaining to real property).

      Our Supreme Court has opined:




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      [T]o excuse delay of the injured party in asserting his rights
      there must be an independent act of fraud or concealment which
      misled or prevented discovery. In determining whether the
      rights claimed should have been more promptly asserted,
      plaintiff is chargeable not only with what he knew but also with
      what he could have discovered with reasonable diligence.

Turtzo v. Boyer, 88 A.2d 884, 885-886 (Pa. 1952).            Moreover, “[m]ere

mistake, misunderstanding or lack of knowledge is not sufficient to toll the

running of the statute.”       Schaffer v. Larzelere, 189 A.2d 267, 269 (Pa.

1963)

      We have explained:

      The purpose of [statute of] limitation periods is to expedite
      litigation and thus discourage delay and the presentation of stale
      claims which may greatly prejudice the defense of such claims.
      In light of the important purpose served by limitation periods,
      this Court has held that statutes of limitation are to be strictly
      construed.

Wachovia Bank, N.A. v. Ferretti, 935 A.2d 565, 575 (Pa. Super. 2007)

(internal citation omitted).

      Moreover, it is well-settled:

      If by diligence a fact can be ascertained the want of knowledge
      so caused is no excuse for a stale claim. The test is not what
      the plaintiff knows, ‘but what he might have known, by
      the use of the means of information within his reach, with
      the vigilance the law requires of him.’

Patton v. Com. Trust Co., 119 A. 834, 836 (Pa. 1923) (internal citation

omitted) (emphasis supplied).         Significantly, the Patton Court expressed

that “[k]nowledge of facts which would put a person of ordinary prudence

and diligence on inquiry is, in the eyes of the law, equivalent to a knowledge


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of all the facts which a reasonably diligent inquiry would disclose.”      Id.

(internal citation omitted).

      Citing Patton, inter alia, our Court subsequently expressed:

            [A]s a general rule the start of the statutory limitation on
      an action in tort may be delayed by plaintiff's ignorance of his
      injury and its cause, until such time as he could or should have
      discovered it by the exercise of reasonable diligence. Lewey v.
      Fricke Coke Co., 166 Pa. 536, 31 A. 261 (1895); Anthony v.
      Koppers Co., Inc., —-Pa.Super. —-, 425 A.2d 428, 431-435
      (1981) (and cases cited therein); Gee v. CBS, Inc., 471 F.Supp.
      600, 617 (E.D.Pa., 1979).

            The plaintiff has the burden of justifying any delay beyond
      the date on which the limitation would have expired if computed
      from the date on which the acts giving rise to the cause of action
      allegedly occurred. He must allege and prove facts which show
      that he made reasonable efforts to protect his interests and
      which explain why he was unable to discover the operative facts
      for his cause of action sooner than he did.             Patton v.
      Commonwealth Trust Co., 276 Pa. 95, 99, 119 A. 834 (1923).
      Where the facts are neither disputed nor close, the
      decision on reasonableness is made by the court as a
      matter of law, instead of by the jury as a matter of fact.
      A. J. Aberman, Inc. v. Funk Building Corp., 278 Pa.Super. 385,
      420 A.2d 594 (1980).

Bickell v. Stein, 435 A.2d 610, 612 (Pa. Super. 1981) (footnote omitted)

(emphasis supplied).

      Here, accepting all of the factual allegations within Appellants’

pleadings as true, and considering against Appellants only those facts which

Appellants admit, we find that the trial court did not err in granting

judgment on the pleadings in favor of Sellers and against Appellants. It is

clear and free from doubt that Appellants’ action is untimely and that



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amendments would not cure the untimeliness.         Accordingly, Sellers are

entitled to judgment.

      Appellants’ complaint avers, and attaches as exhibits, completed work

orders which reflect that Sellers experienced multiple problems with the

property’s sewer line on July 26-27, 2004, September 17, 2004, February

22, 2005, and on March 25, 2005.         Accepting the work orders as true,

Sellers may not have been required to disclose the sewer line issues because

they had been repaired prior to the April 21, 2005 execution of the Seller

Disclosure Statement. See 68 Pa.C.S.A. § 7309(2).

      Even assuming that Sellers were obligated to disclose the prior sewer

line problems, Appellants would have been required to file an action for

Sellers’ failure to disclose said issues within two years of July 5, 2005, the

date of final settlement regarding the property.        See id. at § 7311(b).

Likewise, Appellants had until July 11, 2007 to initiate an action concerning

their claims of fraud, misrepresentation, and negligent misrepresentation.

See id. at § 5524(7).     Moreover, Appellants’ breach of contract claims

became time barred on July 11, 2009. See id. at § 5525(a)(1). Appellants’

UTPCPL claims against Sellers were time barred effective July 11, 2011.

Therefore, Appellants’ November 16, 2012 action was untimely.

      Appellants contend that the Sellers’ failure to disclose the sewer line

problems, which Appellants did not discover until September 2011, tolls the

foregoing statutes of limitations.   We cannot agree.    Appellants’ complaint

specifically avers that in December 2005, Sellers experienced a sewer

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backup. We agree with the trial court that this event, five months following

the final settlement regarding the property, “[w]hether ‘isolated’ or

not,…should have given cause for [Appellants] to check further.” Trial Court

Memorandum Order, 1/23/14, at 2. Therefore, consonant with the rationale

espoused in Turtzo, Schaffer, Ferretti, Patton, and Bickell, supra, we

find that Appellants’ action was untimely, and affirm the trial court’s grant of

judgment on the pleadings in favor of Sellers and against Appellants because

it is clear and free from doubt that Sellers are entitled to judgment.

      Order affirmed.

      Ford Elliott, P.J.E., joins the memorandum.

      Judge Strassburger files a dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/2014




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