J-A04021-26
2026 PA Super 133
KEVIN & LISA HOLLINGER : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellants :
:
:
v. :
:
:
JENNIFER DIETRICH, MICHELE : No. 740 MDA 2025
MCCARTNEY, COLDWELL BANKER
RESIDENTIAL BROKERAGE, LISA
TIGER, ADVANCE REALTY, INC.
D/B/A CENTURY 21 GOLD AND JOHN
DOES 1-10, JOHN DOE CORP. 1-10
Appeal from the Order Entered May 7, 2025
In the Court of Common Pleas of Berks County Civil Division at No(s):
20-3489
BEFORE: PANELLA, P.J.E., KING, J., and LANE, J.
OPINION BY KING, J.: FILED JUNE 23, 2026
Appellants, Kevin and Lisa Hollinger, appeal from the final order of the
Berks County Court of Common Pleas, entered on May 7, 2025, which granted
the motion for summary judgment and motion for judgment on the pleadings
filed by Appellee, Jennifer Dietrich (“Dietrich”).1 Appellants challenge the trial
court’s November 16, 2020 order sustaining the preliminary objections of
Appellees Lisa Tiger (“Tiger”) and Advance Realty, Inc. d/b/a Century 21 Gold
(“Advance Realty”) (collectively “Buyers’ Agents”); the July 19, 2021 order
granting the motion for judgment on the pleadings filed by Appellees Michele
McCartney (“McCartney”) and Coldwell Banker (“Coldwell Banker”)
1 We have amended the caption to include all defendants listed in Appellants’
complaint.
J-A04021-26
(collectively “Seller’s Agents”); the April 13, 2022 orders of the trial court
which granted the motion for summary judgment filed by Buyers’ Agents and
granted the motion for summary judgment filed by Seller’s Agents; the order
entered September 27, 2022, which granted Dietrich’s motions in limine; and
the orders entered May 7, 2025, that granted Dietrich’s motion for summary
judgment and motion for judgment on the pleadings. We affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
On April 24, 2017, [Appellants] entered into an agreement
[(“Agreement of Sale”)] to purchase the real property
located at 1413 Old Mill Road, Wyomissing, Pennsylvania
(“the Property”) from [Dietrich] with settlement to occur on
June 29, 2017. [Appellants] were represented by [Buyers’
Agents], while Dietrich was represented by [Seller’s Agents]
(collectively “Agent Defendants”). [Appellants] first
discovered the Property on the market in 2017 and, after
viewing the Property, were impressed with the high-end,
quality finishes and construction of the Property. Prior to
the transaction, [Appellants] reviewed the Sellers Disclosure
Statement (“SDS”), as required pursuant to the Real Estate
Seller Disclosure Law (“RESDL”), [68 Pa.C.S.A. §§ 7301-7315], provided by Dietrich, which indicated that the
Property had a sump pump in working order and a sump pit,
and that she was not aware of any water infiltration into the
basement or of any repairs to control water or dampness
issues, or other drainage or flooding issues. Dietrich did
disclose in the SDS that a rehab and addition of the Property
had been completed in 2006, which occurred prior to her
marriage to her late husband and subsequent habitation of
the Property. Further, Dietrich disclosed that a sewage
backup in 2016 had necessitated new carpet, tile, and dry
wall to be installed, as well as that the backup was
“professionally blew out.” [(Complaint, at Ex. A, p. 5)].
[Appellants] filed suit against all Defendants on March 23,
2020, setting forth causes of action for violation of the
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RESDL, civil conspiracy, fraud, breach of contract,
negligence, and violations of the Pennsylvania Unfair Trade
Practices and Consumer Protection Law (“UTPCPL”). [73
P.S. §§ 201-1 – 201-10]. [Appellants’] Complaint alleged
that prior to the [A]greement of [S]ale, [Appellants]
reviewed the SDS that Dietrich [had submitted], which did
not disclose any water damage. Likewise, [Appellants]
noted that they specifically sought assurances from Dietrich,
through the Agent Defendants, that no water infiltration had
occurred at the Property.
However, [Appellants] claimed that shortly after settlement
and closing, they noticed flooding in the basement of the
Property. Further investigation prompted by concern led
[Appellants] to discover, according to them, that the
Property had experienced previous flooding in the basement
over a long period of time. [Appellants] also alleged that a
waterproofing system had been installed after an addition
had been completed by Dietrich, which demonstrated that
Dietrich knew that water infiltration into the basement was
an issue. [Appellants] claimed that they engaged the
services of a remediation expert who informed [Appellants]
that the cause of the water infiltration was the improperly
constructed addition to the Property and the landscape
grading performed after the addition was completed.
[Appellants] additionally asserted that “many of their
neighbors were experiencing similar water infiltration
issues, and that the community in general routinely dealt
with flooded basements.” [(Complaint at ¶ 44)].
[Appellants] further alleged that [Tiger and McCartney] both
lived in the area of the Property and, as such, coupled with
their knowledge as real estate agents, they knew or should
have known that water infiltration was a problem
throughout the neighborhood.
(Trial Court Opinion, entered 5/7/25, at 1-3).
On August 5, 2020, Buyers’ Agents filed preliminary objections to the
complaint, arguing that the complaint failed to state a claim for count II-civil
conspiracy, count III-fraud, count V-negligence, and count VI-UTPCPL
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violations. On November 16, 2020, the trial court sustained Buyers’ Agents’
preliminary objections to Appellants’ complaint in part and struck count II-civil
conspiracy and count III-fraud from the complaint.2
On October 14, 2020, Dietrich filed preliminary objections challenging
the sufficiency of the damages claimed and objecting in the nature of a
demurrer to count II-civil conspiracy, count III-fraud, count V-negligence, and
count VI-UTPCPL violation. On November 16, 2020, the trial court sustained
Dietrich’s objections in part, dismissing count II-civil conspiracy and count IIIfraud. The court ordered Dietrich to file an answer to the remaining counts.
On May 20, 2021, Seller’s Agents filed a motion for judgment on the
pleading seeking to dismiss Appellants’ claims for count II-civil conspiracy,
count III-fraud, and count V-negligence. On July 19, 2021, the court granted
Seller’s Agents’ motion for judgment on the pleadings. (Trial Court Order,
entered 7/19/21).
On January 10, 2022, Buyers’ Agents filed a motion for judgment on the
pleadings as to the claims of count III-fraud, count V-negligence, and count
2 Despite the trial court’s striking of count-III, fraud, from the complaint, the
Buyers’ Agents and Appellants proceeded as if the fraud claim remained viable; Buyers’ Agents later moved for summary judgment as to count IIIfraud, and obtained summary judgment in their favor. (See Buyers’ Agents’ Motion for Summary Judgment, 3/11/22; Trial Court Order, entered 4/13/22). However, because there is no indication that the trial court’s November 16, 2020 order sustaining preliminary objections was ever vacated or amended, the record reflects that order as the operative order disposing of Appellants’ claim for count III-fraud, as to the Buyers’ Agents.
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VII-UTPCPL violations, arguing that Appellants failed to allege sufficient facts
to support their claims. Specifically, Buyers’ Agents argued that Appellants
failed to allege that they made any false or reckless representations, or that
they knew that any representations made by Dietrich were false or reckless.
Buyers’ Agents also asserted that the UTPCPL claims against them could not
be supported because the UTPCPL did not regulate the behavior of the buyers–
Appellants–whom Buyers’ Agents represented in the transaction; and further,
Appellants failed to allege any factual support for their claims that Buyers’
Agents engaged in any deceptive or unfair acts.
On January 13, 2022, Seller’s Agents filed a second motion for judgment
on the pleadings, arguing that Appellants had failed to adduce factual support
for count I-RESDL violation because the RESDL requires that an agent have
actual knowledge of the material defect to impose liability and Seller’s Agents
did not have a duty to complete an independent inspection of the Property.
Seller’s Agents further maintained that Appellants failed to identify any specific
oral or written misrepresentation to support a violation of the RESDL. Finally,
Seller’s Agents insisted that Appellants were further barred from pursuing this
claim based on the two-year statute of repose contained in 68 Pa.C.S.A. §
7311(b). Seller’s Agents argued that even though the statute is titled as a
“statute of limitations,” it operates as a statute of repose because the viability
of an action is extinguished two years after the date of settlement.
Subsequently, on March 7, 2022, Dietrich filed a motion for
judgment on the pleadings seeking judgment in her favor as
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to the claims for violations of the RESDL and UTPCPL, breach
of contract, and negligence. Dietrich first claimed that the
RESDL and negligence claims were barred by the applicable
statute of limitations or repose. Dietrich argued that the
only contract between [Appellants] and Dietrich was the
Agreement of Sale (“the Agreement [of Sale]”), which
included that all representations and claims by Dietrich were
not part of the Agreement [of Sale] unless expressly
incorporated therein. Because the SDS was not expressly
incorporated into the Agreement [of Sale], Dietrich
contended, [Appellants] could not use the SDS as a basis
for a breach of contract claim. Other terms of the
Agreement [of Sale], according to Dietrich, included
[Appellants’] inspection requirements, [Appellants’]
acceptance of the Property “IN ITS PRESENT CONDITION…,”
and a release of Dietrich for defects or conditions of the
Property. Finally, Dietrich claims that because the RESDL
cause of action is barred by the statute of repose, and
because the Agreement [of Sale] released Dietrich of
liability for defects or conditions of the [P]roperty,
[Appellants] also fail to sustain their cause of action for
violations of the UTPCPL.
(Trial Court Opinion, entered 5/7/25, at 4-5) (unnecessary capitalization
omitted). Dietrich filed a motion for summary judgment on March 10, 2022,
seeking relief on the same basis as set forth in her motion for judgment on
the pleadings.
On March 11, 2022, Buyers’ Agents and Seller’s Agents filed motions for
summary judgment. On April 13, 2022, the trial court granted the motion for
summary judgment of Buyers’ Agents, entering judgment in favor of Buyers’
Agents on the remaining claims against them: count V-negligence, and count
VII-UTPCPL violation. That same day, the trial court granted the motion for
summary judgment of Seller’s Agents and entered judgment in their favor on
the remaining claim against them, count I-RESDL violation. In both orders,
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the trial court explained that the prior motions for judgment on the pleadings
filed by Agent Defendants were moot pursuant to the grant of summary
judgment relief.
Also on April 13, 2022, the trial court denied Dietrich’s motion for
summary judgment and granted, in part, Dietrich’s motion for judgment on
the pleadings dismissing count III-fraud based on Appellants’ concession that
no specific evidence of fraud, sufficient to meet the legal standard, had been
offered. The court thereafter scheduled the case for a jury trial to begin on
October 4, 2022.
On August 8, 2022, Dietrich filed motions in limine. In the first motion,
she sought exclusion of any agreement, including the SDS, that was outside
of the Agreement of Sale. Dietrich argued that pursuant to the terms of the
Agreement of Sale, Appellants accepted the Property “as is,” and specified
that the Agreement of Sale was all-inclusive as to the terms of sale and did
not include the SDS. Dietrich next sought to exclude the testimony of
Appellants’ expert, arguing that Appellants failed to provide any expert reports
pursuant to the deadlines set forth in the case management order. Finally,
Dietrich sought to exclude any testimony regarding the SDS based on her
continued argument that the count I-RESDL violation claim was barred due to
the statute of repose, and thus, admission of the SDS was also barred.
The court heard argument on the motions in limine and, on September
27, 2022, the court granted Dietrich relief. Specifically, the court excluded
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Appellants’ expert testimony, any testimony regarding the SDS, and
testimony to any agreement other than the Agreement of Sale.
Appellants initially purported to appeal from the trial court’s orders
granting the Agent Defendants’ motions for summary judgment and the order
granting Dietrich’s motions in limine. However, this Court quashed the appeal
as interlocutory and remanded to the trial court for further proceedings. See
Hollinger v. Dietrich, No. 1623 MDA 2022, No. 1624 MDA 2022, No. 1625
MDA 2022, No. 1626 MDA 2022, No. 1629 MDA 2022 (Pa.Super. filed Jan. 3,
2024) (unpublished memorandum). Upon remand, the trial court held a
status conference during which Dietrich asked the trial court to reconsider
Dietrich’s motion for summary judgment.
On May 7, 2025, the trial court granted Dietrich’s motion for summary
judgment as to count I-RESDL violation, and granted Dietrich’s motion for
judgment on the pleadings as to count IV-breach of contract, count Vnegligence, and count VI-UTPCPL violation. (Trial Court Order, entered
5/7/25). In its accompanying opinion, the trial court explained that it
interpreted the RESDL as a statute of repose, rather than a statute of
limitations; hence, Appellants had two years from the date of sale to
commence an action. The court further found that the statute of repose
applicable to the RESDL extinguishes the claims thereto and excludes the SDS.
Because Appellants had relied solely on the SDS in support of the remaining
claims, the court found that Appellants had failed to aver relevant allegations
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to support the causes of action for breach of contract, negligence, or violations
of the UTPCPL. Appellants filed a timely notice of appeal, and pursuant to the
court’s order, Appellants filed their concise statements of errors complained
of on appeal.3
Appellants raise the following issues on appeal.
1. Whether the trial court erred as a matter of law and/or
abused its discretion in its November 16, 2020 order
3 On August 19, 2025, this Court entered a rule to show cause why the appeal
should not be quashed, because it was unclear whether the May 7, 2025 order was final where it left unresolved the claims against John Doe 1-10 and John Doe Corp. 1-10. Appellants responded arguing that the inclusion of John Doe defendants did not mean that there were outstanding claims remaining. Rather, Appellants maintained that the issue of whether claims remained depended on whether the John Doe defendants constituted “legal parties” to the action. Appellants asserted that because no claims were affirmatively pled against the John Doe defendants, their presence in the pleadings did not prevent the order from being final.
Generally, appeals may be taken only from final orders. See Pa.R.A.P. 341(a). A final order is one that disposes of all claims and all parties. Reason v. Kathryn’s Korner Thrift Shop, 169 A.3d 96, 100 (Pa.Super. 2017) (reiterating that orders which do not dispose of all claims and all parties are interlocutory and unappealable). In Zane v. Friends Hospital, 770 A.2d 339 (Pa.Super. 2001), reversed on other grounds, 575 Pa. 236, 836 A.2d 25 (2003), this Court held that an order was final, despite the presence of “Dr. John Doe” on the caption, because Dr. John Doe was not a legal party as he had never been identified, never been served, and had never entered an appearance in the action. Id. at 340 n.1. Similarly, in Weiley v. Albert Einstein Med. Ctr., 51 A.3d 202 (Pa.Super. 2012), this Court held that where a John Doe defendant was never identified, and had never entered an appearance, he was not a legal party. Id. at 215.
Here, we note that the John Doe 1-10 and John Doe Corp. 1-10 defendants were never identified, never served, and had never entered an appearance in the action. Thus, we agree with Appellants that the John Doe defendants did not constitute legal parties to the action, and their presence in the pleadings does not prevent the May 7, 2025 order from being a final order.
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[sustaining Buyers’ Agents’] preliminary objections to
[Appellants’] claim for fraud where there was substantial
factual evidence demonstrating that … Tiger was aware of
water infiltration in [Appellants’] home and failed to inform
[Appellants] of such water infiltration, despite [Appellants’]
specific requests that the home not be subject to water
infiltration, and where such non-disclosure of a material fact
is tantamount to a material misrepresentation?
2. Whether the trial court erred as a matter of law and/or
abused its discretion in its April 13, 2022 order granting
[Buyers’ Agents’] motion for summary judgment where
there was substantial factual evidence demonstrating that
… Tiger knew or should have known of water infiltration in
[Appellants’] home and failed to inform [Appellants] of such
water infiltration in violation of her duties, as well as in
violation of the [UTPCPL], and where the Supreme Court and
the Superior Court have routinely found that where a
buyer’s agent knew or should have known about latent
defects in a home, and where the plaintiffs made clear that
they were relying on representations relating to the
presence of such latent defects, a realtor has a duty to
ensure that the representations made are correct[?]
3. Whether the trial court erred as a matter of law and/or
abused its discretion in its July 19, 2021 order granting
[Seller’s Agents’] motion for judgment on the pleadings as
to [Appellants’] claims for fraud and negligence where there
was substantial factual evidence demonstrating that …
McCartney was aware of water infiltration in the
[Appellants’] home, had an affirmative duty to disclose it,
and failed to inform [Appellants] of such water infiltration,
despite [Appellants’] specific requests that the home not be
subject to water infiltration[?]
4. Whether the trial court erred as a matter of law and/or
abused its discretion in its April 13, 2022 Order granting
[Seller’s Agents’] motion for summary judgment where
there was substantial factual evidence demonstrating that
… McCartney knew or should have known of water
infiltration in the [Appellants’] home and failed to inform
[Appellants] of such water infiltration in violation of her
duties under the [RESDL]?
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5. Whether the trial court erred as a matter of law and/or
abused its discretion in its May [7], 2025 order granting …
Dietrich’s motion for summary judgment and to exclude
testimony regarding the [SDS] on the basis that it is subject
to the principles of a statute of repose where there is no
controlling law applying the principles of a statute of repose
to the statute, and the fact that the statute itself is
specifically identified as a statute of limitation, thus
compelling the conclusion that the RESDL is not a statute of
repose, and is subject to the discovery rule and the
equitable tolling doctrine?
6. Whether the trial court erred as a matter of law and/or
abused its discretion in its May [7], 2025 order granting …
Dietrich’s motion for summary judgment and to exclude
testimony regarding the [SDS] on the basis that it is subject
to the principles of a statute of repose where such preclusion
excluded affirmative statements that were relevant to
[Appellants’] claims for violation of the [UTPCPL], as well as
[Appellants’] claims for breach of contract, and where the
mere fact that [Appellants’] claim for violation of the
[RESDL] may have lapsed did not render such statements
irrelevant or prejudicial?
7. Whether the trial court erred as a matter of law and/or
abused its discretion in its May [7], 2025 order granting …
Dietrich’s motion for summary judgment seeking to exclude
any agreement other than the Agreement of Sale where the
Agreement of Sale specifically references the [RESDL] and
states that “the [RESDL] requires that before an agreement
of sale is signed, the seller in a residential real estate
transfer must make certain disclosures regarding the
property to potential buyers in a form defined by law” and
therefore any documents and testimony demonstrating such
attempts to either to comply with the law by providing a
[SDS], (given that such a requirement is specifically
referenced within the Agreement of Sale) by providing her
disclosures must be allowed?
8. Whether the trial court erred as a matter of law and/or
abused its discretion in its May [7], 2025 order granting …
Dietrich’s motion for summary judgment ostensibly on the
basis that [Appellants] did not submit expert reports where
[Appellants] identified John Hoeffert as a witness in their
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pre-trial memorandum, and produced his report in discovery
well prior to the July 1, 2022 deadline on March 1, 2022,
and identified Construction Master Services in their pre-trial
memorandum and submitted its proposal to repair the
defects in discovery on March 1, 2022, and submitted
opposition both filed and at oral argument[?]
(Appellants’ Brief at 11-15) (unnecessary capitalization omitted).
In their first issue, Appellants contend that the trial court erred when it
granted Buyers’ Agents’ preliminary objections to Appellants’ claim for fraud.
Specifically, they assert that Buyers’ Agents failed to inform them of water
infiltration in the home despite Appellants’ specific requests to purchase a
home without water damage. Appellants further maintain that there was
substantial evidence that Buyers’ Agents were aware of water infiltration in
the home. Appellants insist that at the preliminary objections stage of the
proceedings, the trial court was required to accept as true Appellants’
averments that Tiger, who lived in the neighborhood, had knowledge about a
history of water infiltration throughout the community. Likewise, Appellants
assert that the trial court was obligated to accept as true their pleading that
“all Defendants expressly assured Plaintiffs that no such water damage or
infiltration had ever occurred. These representations were reflected in the
legally-obligated disclosures provided by the seller and the seller’s agent.”
(Complaint at ¶ 9). Appellants argue that Buyers’ Agents had a fiduciary duty
to disclose the prior water infiltration and yet concealed these facts for their
own benefit to earn the commission from the sale of the home. Accordingly,
Appellants insist that they pled sufficient facts to support their claim for fraud
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against Buyers’ Agents, and the trial court erred in sustaining the preliminary
objections. We disagree.
The relevant scope and standard of review in examining a challenge to
an order sustaining preliminary objections are as follows:
Our review of a trial court’s sustaining of preliminary
objections in the nature of a demurrer is plenary. Such
preliminary objections should be sustained only if, assuming
the averments of the complaint to be true, the plaintiff has
failed to assert a legally cognizable cause of action. We will
reverse a trial court’s decision to sustain preliminary
objections only if the trial court has committed an error of
law or an abuse of discretion.
All material facts set forth in the complaint as well as all
inferences reasonably [deducible] therefrom are admitted as
true for [the purpose of this review]. 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.
Lerner v. Lerner, 954 A.2d 1229, 1234 (Pa.Super. 2008) (emphasis in
original) (internal citations omitted). See Burgoyne v. Pinecrest
Community Ass’n, 924 A.2d 675, 679 (Pa.Super. 2007) (stating: “To be
clear and free from doubt that dismissal is appropriate, it must appear with
certainty that the law would not permit recovery by the plaintiff upon the facts
averred”) (citation omitted).
In order to prove fraud the following elements must be
shown: (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 misrepresentation; and (6) the
resulting injury was proximately caused by the reliance.
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Milliken v. Jacono, 60 A.3d 133, 140 (Pa.Super. 2012), aff’d, 628 Pa. 62,
103 A.3d 806 (2014) (citing Youndt v. First National Bank of Port
Allegany, 868 A.2d 539, 545 (Pa.Super. 2005)). “Concealment of a material
fact can amount to actionable fraud if the seller intentionally concealed a
material fact to deceive the purchaser; however, mere silence without a duty
to speak will not constitute fraud.” Viguers v. Philip Morris USA, Inc., 837
A.2d 534, 540 (Pa.Super. 2003), aff’d, 584 Pa. 120, 881 A.2d 1262 (2005).
“[I]n real estate transactions, fraud arises when a seller knowingly
makes a misrepresentation, undertakes a concealment calculated to deceive,
or commits non-privileged failure to disclose.” Milliken, supra at 140
(quoting Youndt, supra at 545). “Fraud is a generic term used to describe
anything calculated to deceive, whether by single act or combination, or by
suppression of truth, or suggestion of what is false, whether it be by direct
falsehood or by innuendo, by speech or silence, word of mouth, or look or
gesture.” Id. (quoting Youndt, supra at 545).
“In Pennsylvania, fraud of any kind must be pleaded in a
complaint with particularity.” Kern v. Kern, 892 A.2d 1, 8
(Pa.Super. 2005) (citing Pa.R.Civ.P. 1019(b)). While it is
impossible to establish precisely what degree of particularity
is required to sufficiently allege fraud, it is well-settled that
the following two conditions must always be met: “The
pleadings must adequately explain the nature of the claim
to the opposing party so as to permit him to prepare a
defense[,] and they must be sufficient to convince the court
that the averments are not merely subterfuge.” Youndt[,
supra at 544-45].
Rudy v. Lesniak, 343 A.3d 1261, 1267-68 (Pa.Super. 2025), appeal denied,
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___ Pa. ___, 355 A.3d 800 (2026).
Instantly, Appellants alleged in their complaint that they had expressly
requested confirmation that the Property was not subject to any water damage
and that “all Defendants expressly assured Plaintiffs that no such water
damage or infiltration had ever occurred. These representations were
reflected in the legally-obligated disclosures provided by the seller and the
seller’s agent.” (Complaint at ¶¶ 9, 34). Appellants averred that they retained
Buyers’ Agents as their realtors because they had “represented that they were
experts in the area” and that Tiger “resided in a home in the same
neighborhood” as the Property. (Id. at ¶¶ 26, 27). Appellants claimed that
because they had learned from neighbors that flooding was common in the
neighborhood, Tiger knew or should have known of water infiltration in the
basement. (Id. at ¶ 45). With respect to count III-fraud, Appellants further
pled:
68. Plaintiffs hereby incorporate the preceding paragraphs
contained in this pleading as though fully set forth herein.
69. At all times material, Defendants represented that the
Home was in compliance with the applicable building codes
and industry standards, was in excellent condition, did not
contain material defects and was not subject to water
infiltration.
70. These statements were misrepresentations as the Home
and the surrounding property were improperly constructed
and graded, leading to significant and substantial water
infiltration.
71. Moreover, as set forth above, Defendants knew or
should have known of the water infiltration and grading
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defects.
72. Plaintiffs relied on these misrepresentations in deciding
to purchase a home from Defendants.
73. As a result of Defendants’, and its agents,
misrepresentations, Plaintiffs purchased the Home that was
subject to water infiltration and flooding.
74. As a result of Defendants’ deceptive and intentionally
fraudulent conduct, Plaintiffs have been significantly
damaged.
75. Moreover, Defendants’ conduct has diminished the
resale value of Plaintiffs’ Home, as these defects and
damages must be disclosed when the Home is sold.
76. Defendants’ actions were outrageous in that they were
committed wrongfully, knowingly, oppressively,
intentionally, with an evil motive, actual malice, wanton and
reckless disregard for the law, gross negligence and/or
reckless indifference to the rights of Plaintiffs. Therefore,
Plaintiffs are entitled to recover punitive damages.
(Complaint at ¶¶ 68-76).
In its Rule 1925(a) opinion, the trial court explained its order sustaining
the preliminary objections filed by Buyers’ Agents as follows:
Instantly, Appellants contend that [Buyers’ Agents]
concealed the existence of prior water infiltration.
Nevertheless, Appellants did not allege that [Buyers’
Agents] knew of any specific defect or water infiltration at
the Property. Likewise, Appellants make no allegation that
[Buyers’ Agents] were informed of any previous water
infiltration or of defects at the Property and failed to disclose
the same to Appellants. Instead, Appellants merely claim
that Tiger lived in the same neighborhood and should have
known that the Property would be subject to the same
flooding issues that other homes in the neighborhood
allegedly experienced.
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Even accepting as true all well-pleaded facts, we fail to see
how [Buyers’ Agents’] alleged knowledge of the
neighborhood in general would be material to the specific
transaction. Again, there was no allegation that [Buyers’
Agents] knew of any water infiltration at the Property. Nor
is there an independent duty to investigate the contents of
the SDS.
Moreover, Appellants failed to present a prima facie case
that [Buyers’ Agents] made any knowing misrepresentation
regarding the Property, concealed any information
regarding the Property in order to deceive, or that they
failed to disclose any non-privileged information regarding
the Property. Again, Appellants alleged that [Tiger] lived in
the same neighborhood and [was an] expert realtor … and
thus, imputed knowledge of some neighborhood properties
experience flooding to [Buyers’ Agents]. Notwithstanding
such an inference, it does not transmute any of such alleged
knowledge to material information for the Property.
Appellants do not assert that Tiger knew of any water
infiltration or flooding at the Property, which would have
been material. As such, [the trial court found] no error in
sustaining [Buyers’ Agents’ preliminary] objection and
dismissing Appellants’ cause of action in fraud against
[Buyers’ Agents].
(Trial Court Opinion, entered 8/19/25, at 12-13) (emphasis in original).
Accepting all the material facts set forth in the complaint as true, the
record supports the trial court’s finding that Appellants failed to assert a legally
cognizable cause of action for fraud against Buyers’ Agents. As the trial court
acknowledged, Appellants did not aver that Buyers’ Agents had any specific
knowledge of water infiltration at the Property. The general averments that
because Tiger lived in the area she should have known of water infiltration in
the basement of the Property are no more than conclusory statements and,
without specific facts from which Tiger’s specific knowledge about the Property
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can be reasonably inferred, are insufficient to survive preliminary objections.
See Lerner, supra. Accordingly, we discern no error or abuse of discretion
in the trial court’s determination that Appellants failed to plead fraud with
sufficient particularity against Buyers’ Agents to convince the court that such
averments are not merely subterfuge. See Rudy, supra. Appellants’ first
issue is meritless.
In their second issue, Appellants argue that the trial court erred when it
granted Buyers’ Agents’ motion for summary judgment and dismissed
Appellants’ claims for count V-negligence and count VII-UTPCPL violation. For
purposes of disposition, because this issue encompasses two distinct
questions, we first address the court’s grant of summary judgment for count
V-negligence and then will proceed to address the grant of summary judgment
for count VII-UTPCPL violation.
First, Appellants argue that Buyers’ Agents had a duty of care both to
know about latent defects in the home and to ensure that any representations
concerning the purchase of the Property were correct. Specifically, they assert
that even assuming that Buyers’ Agents were not aware of the water
infiltration “the circumstances surrounding the transaction bound [Tiger] to
ascertain the truth prior to assuring [Appellants] that no water infiltration had
occurred.” (Appellants’ Brief at 46). Hence, Appellants argue that a real
estate agent has a duty to investigate the truth of any representations made.
(Appellants’ Brief at 45-46) (citing Antatis v. Kolarosky, No. 1311 WDA
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2019, 2020 WL 1174500 (Pa.Super. filed Mar. 11, 2020) (unpublished
memorandum)).4 Alternatively, Appellants suggest that even if this Court has
not recognized such a duty in the past, this Court should find a duty in this
instance based on the relationship between the parties, the inequity of placing
the duty to investigate for water damage on buyers themselves, and a public
interest in realtors being required to disclose any knowledge they have about
water infiltration. (Id. at 51-53). On these grounds, Appellants conclude that
the trial court erred in granting Buyers’ Agents’ motion for summary judgment
on their claim of negligence.5 We disagree.
Our standard of review of an order granting summary judgment is well
settled:
We view the record in the light most favorable to the
4 Appellants rely on Antatis in support of their claim that Buyers’ Agents had
a duty to investigate the representations made in the SDS. However, we note that Antatis concerned a claim for fraud, not negligence. See id. (wherein buyers’ agent misinformed buyers there was no point in having home inspection and that getting one done prior to closing was waste of time even though agent know of prior water intrusions into home and yet made those comments). Furthermore, Antatis is readily distinguishable from the instant case because the agent in that case had knowledge of prior water intrusion into the home; whereas, here there is no evidence that Buyers’ Agents had any knowledge of prior water intrusion in the Property. Id. Thus, Appellants’ reliance on Antatis affords them no relief.
5 In our discussion of the first issue raised, we affirmed the trial court’s order
sustaining the preliminary objections and dismissal of Appellants’ Count IIIfraud, against Buyers’ Agents. Although Appellants again have argued that Tiger and Advance Realty’s failure to ascertain the truth about water infiltration amounted to actionable fraud (see Appellants’ Brief at 41-45), we decline to readdress that claim here, where the trial court dismissed the claim of fraud at the preliminary objections stage. (See supra at 4, n.2).
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nonmoving party, and all doubts as to the existence of a
genuine issue of material fact must be resolved against the
moving party. Only where there is no material fact and it is
clear that the moving party is entitled to judgment as a
matter of law will summary judgment be entered. Our
scope of review of a trial court’s order granting or denying
summary judgment is plenary, and our standard of review
is clear: the trial court’s order will be reversed only where it
is established that the court committed an error of law or
abused its discretion.
Shellenberger v. Kreider Farms, 288 A.3d 898, 905 (Pa.Super. 2023)
(internal citations and quotation marks omitted). Further:
Where the non-moving party bears the burden of proof on
an issue, he may not merely rely on his pleadings or
answers in order to survive summary judgment. Further,
failure of a nonmoving party to adduce sufficient evidence
on an issue essential to his case and on which he bears the
burden of proof establishes the entitlement of the moving
party to judgment as a matter of law.
Thus, our responsibility as an appellate court is to determine
whether the record either establishes that the material facts
are undisputed or contains insufficient evidence of facts to
make out a prima facie cause of action, such that there is
no issue to be decided by the fact-finder. If there is
evidence that would allow a fact-finder to render a verdict
in favor of the non-moving party, then summary judgment
should be denied.
Id. at 905-06 (internal citations and quotation marks omitted).
To establish a claim of negligence against a real estate agent, a plaintiff
must prove that the agent owed a duty to the plaintiff, breached that duty,
that the breach proximately caused damages, and actual loss suffered by the
plaintiff. Ramalingam v. Keller Williams Realty Grp., Inc., 121 A.3d
1034, 1042 (Pa.Super. 2015). Notably, “unless there is a duty upon the
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defendant in favor of the plaintiff which has been breached, there can be no
cause of action based upon negligence.” Minnich v. Yost, 817 A.2d 538, 541
(Pa.Super. 2003), appeal denied, 573 Pa. 710, 827 A.2d 1202 (2003) (citation
omitted).
In Bortz v. Noon, 556 Pa. 489, 729 A.2d 555 (1999), the Pennsylvania
Supreme Court considered whether an agent had a duty to buyers in the
context of a negligent misrepresentation claim, for failing to use reasonable
care in ascertaining the truth of representations passed along to buyers, when
the realtor passed along information that she had received from the title
company, that the property had a clean septic dye test. There, our Supreme
Court decided that the record did not support a conclusion that the agent had
an independent duty to investigate the accuracy of the septic dye test,
explaining that “[t]here is no record evidence that the Agent had specialized
knowledge of septic systems, that she pretended to have such knowledge, or
that she assumed the obligation of guaranteeing or providing this information
to the Buyer.” Id. at 504-05, 729 A.2d at 563. The Court further explained:
We believe that imposing upon the Agent the duty to
investigate, in the unique circumstance of this case, would
place too high a burden on real estate agents. It would be
an unreasonable burden on them because it would make it
their responsibility to guarantee the accuracy of pre-closing
tests done by persons with whom they have no
relationship. Thus, we hold that a real estate broker has
no duty to make an independent investigation of a
contractor’s report, where the real estate broker did not
have any agency or contractual relationship with the third
party.
- 21 -J-A04021-26
Id. at 505, 729 A.2d at 563. Indeed, the Real Estate Licensing and
Registration Act explicitly provides that “[u]nless otherwise agreed, a licensee
owes no duty to conduct an independent inspection of the property and owes
no duty to independently verify the accuracy or completeness of any
representation made by a consumer to a transaction reasonably believed by
the licensee to be accurate and reliable.” 63 P.S. § 455.606a(i).
Nevertheless, as this Court has noted, there is a distinction between
agents having no duty to investigate, and agents having actual knowledge
about defects. In the context of failure to disclose material defects, a duty
arises from an agent’s knowledge of defects and the materiality of the
undisclosed information. See Roberts v. Est. of Barbagallo, 531 A.2d 1125,
1130 (Pa.Super. 1987) (holding that agent of estate may be liable to third
party for its own deceit in not disclosing that property contained banned urea
formaldehyde foam insulation (“UFFI”) despite agent knowing of UFFI and
knowing that its presence was material).
Instantly, the trial court found that Appellants’ negligence claim against
Buyers’ Agents failed because Appellants failed to show that Buyers’ Agents
breached a duty owed to Appellants. The court explained that “[t]he record
is devoid of any facts alleged by [Appellants] to support the claims that [the
Agent Defendants] were aware of any construction and/or grading defects,
water infiltration issues, or drainage/flooding problems at the Property.” (Trial
Court Opinion, entered 10/11/22, at 5-6). The court went on to state:
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[Appellants] have not identified a breach of any duty owed
to them by the Agent Defendants. Again, [Appellants] make
only general averments that all Defendants owed
[Appellants] a duty of care to ensure that all water
infiltration problems were properly disclosed. These general
averments coupled with failure of [Appellants] to allege any
credible facts to show knowledge held by the Agent
Defendants of water infiltration at the Property which could
plausibly support a claim against them leads to the
inescapable conclusion that Count V (negligence) cannot
survive.
(Trial Court Opinion, entered 10/11/22, at 7).
The record supports the trial court’s determination that Appellants failed
to establish that Buyers’ Agents breached a duty owed to Appellants. In the
context of a negligence claim, a duty arises from the agent’s knowledge of
defects and the materiality of the undisclosed information, yet here there is
no evidence that Buyers’ Agents had any actual knowledge of any prior water
infiltration in the Property. See Roberts, supra. Although Appellants are
correct that there is a duty on agents to disclose known instances of water
intrusion in a house, their argument ignores the fact that they have produced
no evidence that Buyers’ Agents knew about water intrusion at the Property.
Likewise, Buyers’ Agents did not have a duty to independently investigate the
veracity of the statements made in the SDS that there was no water infiltration
in the Property. See 63 P.S. § 455.606a(i). Accordingly, because Buyers’
Agents had no knowledge of prior water intrusion and did not have a duty to
independently investigate whether there was water intrusion at the Property,
they did not make a representation that they knew to be false. As such, the
- 23 -J-A04021-26
trial court did not abuse its discretion or commit an error of law in granting
Buyers’ Agents’ motion for summary judgment on count V-negligence.
In the second part of Appellants’ issue, they claim that the trial court
erred in granting summary judgment in favor of Buyers’ Agents on count VIIUTPCPL violation. Appellants argue that Buyers’ Agents engaged in deceptive
conduct that created a likelihood of confusion or misunderstanding, and that
Appellants justifiably relied on this deceptive conduct to their financial
detriment when they purchased the Property. Specifically, the deceptive
conduct alleged is that Buyers’ Agents failed to disclose information about
water intrusion at the Property. Appellants insist that whether they justifiably
relied on the deceptive conduct was a question of fact for the fact-finder to
decide, and therefore the trial court erred in granting summary judgment on
this claim. We disagree.
“To bring a private cause of action under the UTPCPL, a plaintiff must
show that he justifiably relied on the defendant’s wrongful conduct or
representation and that he suffered harm as a result of that reliance.” Yocca
v. Pittsburgh Steelers Sports, Inc., 578 Pa. 479, 501, 854 A.2d 425, 438
(2004) (citing Weinberg v. Sun Co., 565 Pa. 612, 777 A.2d 442, 446
(2001)). As this Court has explained:
The UTPCPL is Pennsylvania’s consumer protection law and
seeks to prevent “[u]nfair methods of competition and
unfair or deceptive acts or practices in the conduct of any
trade or commerce....” The purpose of the UTPCPL is to
protect the public from unfair or deceptive business
practices. Our Supreme Court has stated courts should
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liberally construe the UTPCPL in order to effect the
legislative goal of consumer protection.
The UTPCPL provides a private right of action for anyone
who “suffers any ascertainable loss of money or property”
as a result of “an unlawful method, act or practice.” Upon
a finding of liability, the court has the discretion to award
“up to three times the actual damages sustained” and
provide any additional relief the court deems proper.
Section 201–2(4) lists twenty enumerated practices which
constitute actionable “unfair methods of competition” or
“unfair or deceptive acts or practices.” The UTPCPL also
contains a catchall provision at 73 P.S. § 201–2(4)(xxi).
Bennett v. A.T. Masterpiece Homes at Broadsprings, LLC, 40 A.3d 145,
151-52 (Pa.Super. 2012) (emphasis omitted).
Under the UTPCPL’s catchall provision, “unfair or deceptive acts or
practices” include “engaging in any … fraudulent or deceptive conduct which
creates a likelihood of confusion or misunderstanding.” 73 P.S. 201–2(4)(xxi).
“[A]ny deceptive conduct, ‘which creates a likelihood of confusion or of
misunderstanding,’ is actionable under 73 P.S. § 201-2(4)(xxi), whether
committed intentionally (as in a fraudulent misrepresentation), carelessly (as
in a negligent misrepresentation), or with the utmost care (as in strict
liability).” Gregg v. Ameriprise Fin., Inc., 195 A.3d 930, 939 (Pa.Super.
2018), aff’d, 664 Pa. 567, 245 A.3d 637 (2021).
Instantly, the trial court explained:
There are no factual allegations in the complaint to support
the claim that [Buyers’ Agents] engaged in any unfair or
deceptive acts or practices or that they made any
misrepresentations regarding water infiltration at the
Property. The alleged misrepresentations at issue were
contained in the SDS. The conclusory allegation that
- 25 -J-A04021-26
[Buyers’ Agents] knew or improperly failed to discover that
the [P]roperty had water issues is unsupported both legally
and factually. [Appellants] rely only upon general
allegations regarding water infiltration at other properties in
the community thus deducing that the Agent Defendants
knew or should have known that there was such a condition
at the [P]roperty. [Appellants] cannot cite to any legal duty
of the Agent Defendants to have inspected or discovered
any such condition or that they had any knowledge that such
a condition existed at the [P]roperty.
(Trial Court Opinion, 12/8/22, at 10-11). The trial court continued:
[Appellants] do not identify with any degree of specificity
whatsoever any representations attributable to the Agent
Defendants about the condition of the Property, specifically
the presence or extent of water infiltration at or before the
time of settlement. [Appellants] allege that the Agent[]
Defendants had actual knowledge of construction defects
but remained unable to identify individuals who had that
knowledge and specifically what that knowledge was.
(Id. at 12).
We agree with the trial court’s reasoning. Appellants alleged that
Buyers’ Agents engaged in fraudulent or deceptive conduct upon which
Appellants justifiably relied to their financial detriment. However, other than
general allegations that Buyers’ Agents did not inform Appellants about water
intrusion, Appellants have not identified any specific fraudulent or deceptive
conduct attributable to Buyers’ Agents. As discussed, Appellants have
presented no evidence that Buyers’ Agents knew of water infiltration in the
Property and made any statements to either deceive Appellants about their
knowledge of water infiltration or to mislead Appellants as to the same.
Although justifiable reliance is typically a question of fact for the jury, as the
- 26 -J-A04021-26
trial court explained, Appellants’ UTPCPL claim does not reach the justifiable
reliance issue where they did not present any evidence in support of the
deceptive conduct element of their claim. On this record, we cannot say that
the trial court erred in granting Buyers’ Agents’ motion for summary judgment
at count VII-UTPCPL violation. Appellants’ second issue is meritless.
In their third issue, Appellants argue that the trial court erred when it
granted Seller’s Agents’ motion for judgment on the pleadings as to
Appellants’ claims count III-fraud and count V-negligence. For purposes of
disposition, we address each claim separately.
This Court has set forth our well-settled standard of review of a ruling
on a motion for judgment on the pleadings as follows:
Our standard of review of a ruling on a motion for judgment
on the pleadings is de novo, and our scope of review is
plenary. See SpiriTrust Lutheran v. Wagman Constr.,
Inc., 314 A.3d 894, 904 (Pa.Super. 2024). A motion for
judgment on the pleadings is similar to a demurrer. See
Washabaugh v. Gaudenzia, Inc., 316 A.3d 1008, 1011
(Pa.Super. 2024)[, appeal denied, ___ Pa. ___, 333 A.3d
1267 (2025)]. “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.” Five Star Bank v. Chipego, 312 A.3d 910,
918 (Pa.Super. 2024) (citation omitted).
Like the trial court, we “must accept as true all well pleaded
statements of fact, admissions, and any documents properly
attached to the pleadings presented by the party against
whom the motion is filed, considering only those facts which
were specifically admitted.” Washabaugh[, supra] at
1011. Grant of a motion for judgment on the pleadings is
proper “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.” Id. (citation omitted).
- 27 -J-A04021-26
Boyle v. Meyer, 344 A.3d 839, 844 (Pa.Super. 2025).
Appellants argue that Seller’s Agents’ act of concealing the material fact
of water infiltration amounts to actionable fraud. Appellants maintain that the
specific pleadings in the complaint, that “all Defendants expressly assured
Plaintiffs that no such water damage or infiltration had ever occurred,” and
that “McCartney was the agent for Defendant Dietrich and knew about and
was involved in the misrepresentations of quality,” sufficiently pled the
intentional misrepresentation necessary for a claim of fraud. (Complaint at
¶¶ 9, 14). Appellants further pled that because McCartney lived in the same
neighborhood as the home, she was a member of the community and was
aware that flooding was common in the community generally. (Id. at ¶¶ 36,
44). Appellants insist that these pleadings sufficiently set forth material facts
to support their claim of fraud against Seller’s Agents and, therefore, the trial
court erred in granting Seller’s Agents’ motion for judgment on the pleadings
on Appellants’ fraud claim.
We reiterate that to prove fraud, plaintiffs must establish the following
elements by clear and convincing evidence: “(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
misrepresentation; and (6) the resulting injury was proximately caused by the
reliance.” Weissberger v. Myers, 90 A.3d 730, 731 (Pa.Super. 2014). See
- 28 -J-A04021-26
also Milliken, supra at 140.
Here, the trial court explained that “count III of [Appellants’] Complaint
was dismissed … because [Appellants] failed to identify any credible written
or oral representation with the specificity required of a fraud claim.” (Trial
Court Opinion, entered 12/8/22, at 7). The court further elaborated its
reasons for granting Seller’s Agents’ motion for judgment on the pleadings on
count III-fraud as follows:
[Appellants] allege the Agent Defendants made oral and
written representations, but [Appellants] were unable to
produce any such writings or identify with any degree of
specificity what the representations were, how they were
made, or who made them. Rather, [Appellants] rely upon
assertions that Defendants McCartney and Tiger live in the
same general neighborhood and knew or should have known
that the homes in the area are subject to water infiltration.
[Appellants] further allege that neighbors experience similar
water infiltration issues, but do not identify the identity of
any such neighbors or the source of that information
sufficient to support a fraud claim. This failure is fatal to
[Appellants’] claims for fraud. … These vague and factually
unsupported allegations by [Appellants] simply and clearly
do not meet the legal threshold. [Appellants’] persistent
failure to properly plead facts sufficiently specific to support
a claim for fraud make it clear that Count III was properly
dismissed.
(Id. at 7-8).
Based on our review, we see no error in the trial court’s order granting
Seller’s Agents’ motion for judgment on the pleadings. See SpiriTrust
Lutheran, supra. Accepting as true all well pleaded statements of fact and
admissions, the pleadings fail to establish that Seller’s Agents made a knowing
or reckless misrepresentation concerning water infiltration at the Property.
- 29 -J-A04021-26
See Weissberger, supra. Appellants’ general assertion that “all Defendants
expressly assured Plaintiffs that no such water damage or infiltration had ever
occurred” refers to those “representations [that] were reflected in the legallyobligated disclosures provided by the seller and the seller’s agent,” (see
Complaint at ¶ 9), and does not in itself contain a specific averment of a
representation, material to the transaction, that was made falsely with
knowledge of its falsity or recklessness as to whether it is true or false. See
Milliken, supra. This generalized averment does not comply with our Rules
of Civil Procedure, which require “averments of fraud or mistake [to] be
averred with particularity.” Pa.R.C.P. 1019(b). Additionally, Appellants’
inference that Seller’s Agents must have known of water infiltration at the
Property because flooding was common in the neighborhood and, therefore,
McCartney, who lived in the neighborhood, likely knew about water infiltration,
is not sufficient to establish knowledge of water infiltration at the Property
itself. Accordingly, Appellants did not adequately set forth factual allegations
in the complaint to support their assertion that Seller’s Agents made any
misrepresentations about water infiltration at the Property. Therefore, the
trial court did not err in granting Seller’s Agents’ motion for judgment on the
pleadings for count III-fraud. See Boyle, supra.
With respect to the trial court’s grant of judgment on the pleadings for
count V-negligence, Appellants argue that the complaint set forth allegations
necessary to establish that Seller’s Agents had a duty to disclose material
- 30 -J-A04021-26
defects of which they had knowledge and breached that duty. Specifically,
Appellants maintain that Seller’s Agents had a duty to inform them about
water infiltration and failed to do so, and Appellants relied on Seller’s Agents’
failure to disclose the water infiltration and were damaged as a result.
Appellants argue that because there was clearly a duty owed, the trial court
similarly erred in granting the Seller’s Agents’ motion for judgment on the
pleadings on Appellants’ negligence claim. We disagree.
It is well established that, “[a] cause of action in negligence requires
allegations that establish the breach of a legally recognized duty or obligation
that is causally connected to the damages suffered by the complainant.” BiltRite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454, 470-71,
866 A.2d 270, 280 (2005) (quoting Sharpe v. St. Luke’s Hospital, 573 Pa.
90, 95, 821 A.2d 1215, 1218 (2003)) (citation omitted). “The primary
element in any negligence cause of action is that the defendant owes a duty
of care to the plaintiff.” Id. (quoting Althaus ex rel. Althaus v. Cohen, 562
Pa. 547, 552, 756 A.2d 1166, 1168 (2000)).
Here, the trial court explained that it granted Seller’s Agents’ motion for
judgment on the pleadings because Appellants failed to identify a breach of
any duty owed to them. The court pointed out that Appellants
make only general averments that all Defendants owed
Plaintiffs a duty of care to ensure that all water infiltration
problems were properly disclosed. These general
averments coupled with failure of the Plaintiffs to allege any
credible facts to show knowledge held by the Agent
Defendants of water infiltration at the Property which could
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plausibly support a claim against them leads to the
inescapable conclusion that Count V negligence claim
cannot survive, thus it was properly dismissed.
(Trial Court Opinion, entered 12/8/22, at 9).
Although Appellants insist that Seller’s Agents were aware of the water
infiltration in the Property, our review of the complaint reveals that Appellants
do not plead any specific allegations that would establish that Seller’s Agents
had any knowledge of water intrusion at the Property. The general averments
that Seller’s Agents must have known about water infiltration based on the
fact that McCartney lived in the neighborhood is insufficient to establish that
Seller’s Agents breached a specific duty owed to Appellants. Accordingly, the
trial court did not err when it granted Seller’s Agents’ motion for judgment on
the pleadings with respect to count V-negligence.
We next turn to Appellants’ fifth and sixth issues, wherein they claim
that the trial court erred in granting the motions for summary judgment filed
by Seller’s Agents and Dietrich and dismissed count I-RESDL violation.6
Specifically, Appellants insist that the trial court erred when the court
interpreted the RESDL as being a statute of repose rather than operating
under a statute of limitations. Therefore, they claim the court erred when it
6 Based on our determination that the RESDL operates as a statute of repose
such that Appellants’ claims under the RESDL were barred, we need not reach Appellants’ fourth issue arguing that the court erred in granting summary judgment on the RESDL claim because of an alleged genuine issue of material fact as to the credibility of Seller’s Agents in their denial of knowledge of water intrusion at the Property.
- 32 -J-A04021-26
dismissed the RESDL claim based on the statute of repose violation.
Appellants maintain that Section 7311(b) of the RESDL is specifically identified
as a statute of limitations, and there is no controlling precedent applying it as
a statute of repose. Construed as a statute of limitations, Appellants argue
the RESDL is subject to both the discovery rule and the equitable tolling
doctrine. Appellants acknowledge that the trial court and Seller’s Agents rely
on a federal case, Star v. Rosenthal, 884 F.Supp. 2d 319 (E.D.Pa. 2012),
for its determination that the RESDL operates as a statute of repose; however,
they argue that the federal case is not precedential and therefore this Court
should base our determination on the words of the RESDL identifying it as a
statute of limitations. We disagree.
This issue presents a pure legal question of statutory interpretation and
as such, our standard of review is de novo and our scope of review is plenary.
Kornfeind v. New Werner Holding Co., 674 Pa. 115, 126, 280 A.3d 918,
925 (2022). “In construing a statute, a court must give effect to the
legislature’s intent and to all the statute’s provisions. 1 Pa.C.S. § 1921(a).
The statute’s plain language is the best indicator of the legislature’s intent.”
Id. (case citation omitted).
To ascertain the plain meaning, we consider the operative
statutory language in context and give words and phrases
their common and approved usage. Courts must give effect
to a clear and unambiguous statute and cannot disregard
the statute’s plain meaning to implement its objectives. A
statute is ambiguous when there are at least two reasonable
interpretations of the text. Only if the statute is ambiguous,
and not explicit, do we resort to other means of discerning
- 33 -J-A04021-26
legislative intent. When a statute is ambiguous, courts
apply the factors in the Statutory Construction Act to discern
the legislature’s intent.
Kornfeind, supra at 126-27, 280 A.3d at 925 (citations and internal
quotation marks omitted).
A statute of limitations limits the time for a plaintiff to bring suit based
on when a cause of action accrues. Vargo v. Koppers Co., Inc., 552 Pa.
371, 715 A.2d 423 (1998). Statutes of repose similarly limit the time for a
plaintiff to bring suit; however, a statute of repose is not related to the accrual
of any cause of action. Gidor v. Mangus, ___ Pa. ___, ___, 345 A.3d 629,
640 (2025). Thus, “statutes of repose begin to run at the time of the negligent
act, while statutes of limitations do not begin to run until the cause of action
accrues.” Matharu v. Muir, 86 A.3d 250, 263 (Pa.Super. 2014). See also
Abrams v. Pneumo Abex Corp., 602 Pa. 627, 648, 981 A.2d 198, 211
(2009) (stating: “A statute of repose is defined as a ‘statute barring any suit
that is brought after a specified time since the defendant acted ..., even if this
period ends before the plaintiff has suffered a resulting injury’”). As our
Supreme Court has explained:
A statute of limitations limits the time for a plaintiff to bring
suit based on when a cause of action accrues. Vargo, 715
A.2d at 425. A cause of action accrues “when an injury is
inflicted and the corresponding right to institute a suit for
damages arises.” Gleason v. Borough of Moosic, 609 Pa.
353, 15 A.3d 479, 484 (2011). While a statute of repose
also limits the time for a plaintiff to bring suit, unlike a
statute of limitations, a statute of repose “‘is not related to
the accrual of any cause of action’” because “the injury need
not have occurred, much less have been discovered.”
- 34 -J-A04021-26
Abrams, 981 A.2d at 211 (internal quotations and citations
omitted). “Where a limitations period begins with a
definitely established event that is independent of an
injurious occurrence or discovery thereof, the statute is
considered to be one of repose.” [City of Phila. v. City of
Phila. Tax Rev. Bd. ex rel. Keystone Health Plan E.,
Inc., 635 Pa. 108, 132 A.3d 946, 952 (2015)] (citing
Abrams, 981 A.2d at 211 (explaining that “the period
contained in a statute of repose begins when a specific event
occurs, regardless of whether a cause of action has accrued
or whether any injury has resulted”)); see also Altoona
Area Sch. Dist. v. Campbell, 152 Pa.Cmwlth. 131, 618
A.2d 1129, 1134 (1992) (noting that “statutes of limitation
begin to run from the time of an injurious occurrence or
discovery of the same, ... whereas statutes of repose run
for a statutorily determined period of time after a definitively
established event independent of an injurious occurrence or
discovery of the same”). Importantly, a statute of repose
“completely abolishes and eliminates [a] cause of action”
regardless of when the claim accrues and, in some cases,
even before the claim accrues. Vargo, 715 A.2d at 425
(citing Noll [by Noll v. Harrisburg Area YMCA, 537 Pa.
274, 643 A.2d 81, 84 (1994)]).
* * *
We have explained that when the General Assembly drafts
statutes of repose, it includes “‘wording describing a
definitely established event which commences the
statutorily determined [repose] period[.]’” Vargo, 715
A.2d at 426 (quoting Altoona Area Sch. Dist., 618 A.2d at
1134). Importantly, the General Assembly does not tie the
repose period to “whether a cause of action has accrued or
whether any injury has resulted.” Abrams, 981 A.2d at
211. Rather, the focus is on whether the “limitations period
begins with a definitely established event that is
independent of an injurious occurrence or discovery
thereof[.]” City of Phila., 132 A.3d at 952. If so, “the
statute is considered to be one of repose.” Id.
Gidor, supra at ___, 345 A.3d at 640-41. Furthermore, “because statutes of
repose not only bar a party’s right to a remedy, but abolish and eliminate a
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cause of action entirely, a plaintiff may not invoke the discovery rule or other
equitable tolling considerations.” Id. at ___, 345 A.3d at 641.
Section 7311(b) of the RESDL provides the following:
Section 7311. Failure to comply
* * *
(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. § 7311(b). While the heading of section 7311(b) is “Statute of
limitations,” it is well settled “that we only look to the title of a statute if the
text of the statute is ambiguous.” Gidor, supra at ___, 345 A.3d at 639
(citing Commonwealth v. Magwood, 503 Pa. 169, 177, 469 A.2d 115, 119
(1983)). See also 1 Pa.C.S.A. § 1924 (providing that “[t]he headings
prefixed to titles, parts, articles, chapters, sections and other divisions of a
statute shall not be considered to control[,] but may be used to aid in the
construction thereof”). In other words, “the title cannot control the plain
words of a statute and … even if a statute is ambiguous, the title may only be
considered to resolve the uncertainty.” Gidor, supra at ___, 345 A.3d at 639
(brackets and internal quotation marks omitted).
In Gidor, our Supreme Court evaluated whether section 7512 of the
Home Inspection Law operated as a statute of limitations or a statute of
repose. There, our Supreme Court held that despite section 7512 being titled
as a statute of limitations, the text of section 7512 was “plain and
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unambiguous in commanding that ‘[a]n action to recover damages arising
from a home inspection report must be commenced within one year after the
date the report is delivered.’ 68 Pa.C.S.A. § 7512.” Id. at ___, 345 A.3d at
640. The High Court explained that “when the General Assembly drafts
statutes of repose, it includes ‘wording describing a definitely established
event which commences the statutorily determined [repose] period[.]’” Id.
at 641 (citing Vargo, supra at 426). The Gidor Court recognized that section
7512 was similar to the construction statute of repose, explaining that both
statutes command that an “action ... must be commenced within [a certain
amount of time] after [the occurrence of a definitely established event that is
independent of an injurious occurrence or discovery thereof].” Id. at ___,
345 A.3d at 642. Ultimately, concluding that section 7512 followed the
established framework of setting forth an established event triggering the
commencement of a repose period, the Court held that section 7512 was a
statute of repose. Id.
Here, the trial court offered the following explanation of its order
granting summary judgment in favor of Dietrich and Seller’s Agents with
respect to Appellants’ claim brought under the RESDL:
The statute provides that claims brought under the [RESDL]
must be brought within two years from the date of
settlement. Although the statute is titled as one of
limitation, it does not run from a subjective event, rather
from a firm, objective date and contains no tolling provision.
Therefore, it operates as a statute of repose which
extinguishes all causes of action at the end of a time certain.
The [RESDL] states: “an action for damages as a result of a
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violation of this chapter must be commenced within two
years after the date of final settlement.” 68 Pa.C.S.A. §
7311(b). Although labeled as a statute of limitations, its
interpretation and application as a statute of repose by a
Pennsylvania federal court is instructive here: “… a title has
minimal probative value regarding the actual character of
this provision given that other Pennsylvania statutory
provisions that indisputably impose statutes of repose are
nonetheless sometimes identified by the General Assembly
as statutes of limitations.” [Star, supra at 325]. … The
settlement date in this transaction occurred on July 14,
2017, and [Appellants] commenced this litigation on March
23, 2020, two years and eight months after the final
settlement date.
(Trial Court Opinion, entered 12/8/22, at 13-14).
Based upon the clear and unambiguous language of section 7311(b), we
agree with the trial court and conclude that the statute is intended to be a
statute of repose, and not a statute limitations, because the action
commences on the date of “the occurrence of a definitely established event
that is independent of an injurious occurrence or discovery thereof” — in this
case, the date of final settlement. See Gidor, supra. We note the similarities
between section 7311(b) and section 7512, with both sections commanding
that an action for damages pursuant to that chapter must be commenced
within a certain time after a definitely established event, and independent of
any injury or discovery of any injury. Section 7311(b) follows the established
framework of a statute of repose and specifies that actions for damages must
be commenced within two years after the date of final settlement. Thus,
notwithstanding its title, it is a statute of repose. Accordingly, we agree with
the trial court that because the instant litigation was commenced on March
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23, 2020, two years and eight months after the final settlement date,
Appellants’ claims under the RESDL are barred by the statute of repose.
Therefore, the trial court did not err in granting the motions for summary
judgment filed by Dietrich or Seller’s Agents with respect to count I-RESDL
violation.
Appellant’s final issues concern the trial court’s grant of Dietrich’s
motions in limine.7 We review a trial court’s decision to grant or deny a motion
in limine for an abuse of discretion. Parr v. Ford Motor Co., 109 A.3d 682,
690 (Pa.Super. 2014).
Questions concerning the admissibility of evidence lie within
the sound discretion of the trial court, and we will not
reverse the court’s decision absent a clear abuse of
discretion. Commonwealth Financial Systems, Inc. v.
Smith, 15 A.3d 492, 496 (Pa.Super. 2011) (citing Stumpf
v. Nye, 950 A.2d 1032, 1035-1036 (Pa.Super. 2008)[,
appeal denied, 599 Pa. 711, 962 A.2d 1198 (2008)]). “An
abuse of discretion may not be found merely because an
appellate court might have reached a different conclusion,
but requires a manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be ____________________________________________
7 The discussion portion of Appellants’ brief does not align with the questions
presented. Appellants combine their final questions into a separate section “E” in the discussion portion of their brief, which is divided into three segments. The first concerns both the trial court’s classification of the RESDL as a statute of repose and the court’s decision to exclude the SDS as evidence for other claims. (See Appellants’ Brief at 65-70). The second subsection also concerns the trial court’s exclusion of any agreement other than the Agreement of Sale, specifically arguing that the trial court erred in precluding the SDS under the parol evidence rule. Finally, the third subsection concerns whether the court erred in precluding the testimony of Appellants’ expert. For clarity of disposition, we will first address the arguments concerning the trial court’s preclusion of the SDS, and then separately will address the preclusion of Appellants’ expert witnesses.
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clearly erroneous.” Grady v. Frito–Lay, Inc., 576 Pa. 546,
839 A.2d 1038, 1046 (2003).
Keystone Dedicated Logistics, LLC v. JGB Enters., Inc., 77 A.3d 1, 11
(Pa.Super. 2013).
First, Appellants assert that the trial court excluded admission of the
SDS based on the court’s finding that the RESDL claims were barred by the
statute of repose. Appellants argue that the trial court’s conclusion that the
RESDL claims were barred by the statute of repose did not require the court
to exclude the SDS as evidence in support of Appellants’ other claims.
Appellants claim that in enacting the RESDL, the General Assembly did not
intend to restrict other remedies; therefore, Appellants insist that the court’s
preclusion of the SDS based on the statute of repose barring the RESDL
claims, constitutes an error of law where the preclusion had the effect of
extinguishing Appellants’ claims under the UTPCPL. We disagree.
It appears to be an issue of first impression for this Court whether an
SDS made pursuant to the RESDL, should remain admissible in support of
other claims where any claims under the RESDL itself are barred by the twoyear statute of repose. Accordingly, we look to the language of the RESDL
itself.
The RESDL applies to all residential real estate transfers and mandates
certain disclosures:
Any seller who intends to transfer any interest in real
property shall disclose to the buyer any material defects
with the property known to the seller by completing all
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applicable items in a property disclosure statement which
satisfies the requirements of [§] 7304 (relating to disclosure
form). A signed and dated copy of the property disclosure
statement shall be delivered to the buyer in accordance with
[§] 7305 (relating to delivery of disclosure form) prior to the
signing of an agreement of transfer by the seller and buyer
with respect to the property.
68 Pa.C.S.A. § 7303. See also Wentworth v. Steinmetz, 349 A.3d 189,
198 (Pa.Super. 2025) (explaining: “A basement that floods, a roof that leaks,
beams that were damaged by termites, an asbestos-tile kitchen floor: these
are the conditions our legislature requires sellers to disclose if they are
known”).
The legislative history of the RESDL indicates “that the RESDL ‘is
intended to protect the purchaser of real property, and the method of
protection is a disclosure statement that is included within the bill that the
seller has to complete so that presumably the buyer accurately knows what
the seller knows about the property when the sale occurs.’” Phelps v.
Caperoon, 190 A.3d 1230, 1245 (Pa.Super. 2018) (quoting Pa. Senate
Journal 2138, June 18, 1996 (statement of Sen. David J. Brightbill)). The
legislature emphasized the consumer protection purpose of the RESDL,
explaining:
It says if you know there is a problem, then tell us there is
a problem so that when we buy your house we know what
that is, and if we know upfront and still agree to your price,
then we know that the price was worth whatever it is we are
willing to pay…
Id. (quoting Pa. Senate Journal 2138-39, June 18, 1996 (statement of Sen.
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Jake Corman)).
This Court has also explained that the RESDL does not foreclose
independent common law tort and contract claims, and this Court has held
that SDS’s made in compliance with the RESDL are admissible in support of
those common law claims. See, e.g., Hosler v. Tweedlie, 306 A.3d 361,
374 (Pa.Super. 2023), appeal denied, ___ Pa. ___, 318 A.3d 96 (2024)
(affirming finding of fraud based on seller’s representations contained within
RESDL form). As previously discussed, the RESDL also contains a two-year
statute of repose, limiting the timeframe in which sellers remain liable after
the sale of a property. See 68 Pa.C.S.A. § 7311(b) (requiring that “[a]n action
for damages as a result of a violation of this chapter must be commenced
within two years after the date of final settlement”).
The legislative history of the RESDL discussed above demonstrates that
in its enactment of the RESDL, the General Assembly sought to protect
consumers in real estate transactions, and therefore mandated disclosure of
such defects in the SDS. The General Assembly also limited actions brought
under the RESDL based on the SDS by a two-year statute of repose. We note
that the RESDL did not foreclose common law tort or breach of contract claims,
nor did the RESDL foreclose claims under the UTPCPL. However, the RESDL
neither expands nor restricts these existing common law remedies. See 68
Pa.C.S.A. § 7311(a) (stating: “This subsection shall not be construed so as to
restrict or expand the authority of a court to impose punitive damages or apply
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other remedies applicable under any other provision of law”).
In our view, extending a seller’s liability for such mandatorily disclosed
statements beyond the two-year statute of repose would run afoul of the
express statement declining to expand remedies applicable under other
provisions of law. In other words, if a buyer were able to use the mandatory
disclosure statement in support of common law claims of fraud or tort against
the seller beyond the two-year statute of repose, the RESDL and its mandatory
disclosure requirements would be used to expand remedies available under
other provisions of law. See 68 Pa.C.S.A. § 7311. Accordingly, we conclude
that the trial court did not abuse its discretion when it granted Dietrich’s
motion in limine and precluded Appellants from using the SDS in support of
their breach of contract, negligence, and UTPCPL claims, because the statute
of repose for the RESDL had passed.
Next, Appellants argue that the trial court erred when it granted
Dietrich’s motion in limine to exclude any agreement other than the
Agreement of Sale. Specifically, Appellants maintain that the SDS was
effectively incorporated into the Agreement of Sale, where the Agreement of
Sale provided that “the [RESDL] requires that before an agreement of sale is
signed, the seller in a residential real estate transfer must make certain
disclosures regarding the property to potential buyers in a form defined by
law.” (Appellants’ Brief at 70-71). Appellants claim that this phrasing
effectively incorporated the SDS into the Agreement of Sale, and therefore
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the trial court erred in granting Dietrich’s motion in limine to exclude any
agreement other than the Agreement of Sale. Appellants also contend that
the parol evidence rule does not bar evidence of seller disclosure statements
generally.8 We disagree.
Appellants’ issue concerns the trial court’s application of the parol
evidence rule. The parol evidence rule provides that when parties have
reduced an agreement to a final and fully integrated writing, the law declares
the writing to be the best and only evidence of the agreement and all
preliminary agreements are superseded by the written contract. Rudy, supra
at 1268.
In Hosler, supra, this Court held that “absent express incorporation of
the RESDL form into an agreement of sale, which is not present in the case
sub judice, representations made in the RESDL form cannot be found to exist
within the four corners of an agreement of sale.” Hosler, supra at 374 n.11
(explaining there is “no provision in RESDL that expressly states that
representations made pursuant to this law are incorporated into an agreement
of sale”).
Notably, Pennsylvania case law has recognized an exception to the parol
8 Appellants’ argument is based on a trial court decision from the Allegheny
County Court of Common Pleas, Vaughn v. Drab, 73 Pa. D. & C.4th 550, 558 (Com. Pl. 2005). We remind Appellants that we are not bound by decisions of a Court of Common Pleas, even if they are directly on point. Keller v. Mey, 67 A.3d 1, 5 n.6 (Pa.Super. 2013).
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evidence rule concerning fraud claims. Specifically, when a party alleges that
they were fraudulently induced into an agreement, “no valid agreement came
into being and parol evidence is admissible to show that the alleged agreement
is void.” Blumenstock v. Gibson, 811 A.2d 1029, 1036 (Pa.Super. 2002),
appeal denied, 573 Pa. 714, 828 A.2d 349 (2003) (citing 1726 Cherry Street
Partnership v. Bell Atlantic Properties, Inc., 653 A.2d 663, 666
(Pa.Super. 1995), appeal denied, 544 Pa. 647, 664 A.2d 976 (1995)).
Instantly, the parties agree that the Agreement of Sale constitutes the
parties’ written contract for the sale of the Property. The Agreement of Sale
specifically contains an integration clause limiting the agreement to the
written document, and provides:
(A) All representations, claims, advertising, promotional
activities, brochures or plans of any kind made by Seller,
Brokers, their licensees, employees, officers or partners are
not a part of this Agreement unless expressly incorporated
or stated in this Agreement. This Agreement contains the
whole agreement between Seller and Buyer, and there are
no other terms, obligations, covenants, representations,
statements or conditions, oral or otherwise, of any kind
whatsoever concerning this sale. This Agreement will not
be altered, amended, changed or modified except in writing
executed by the parties.
(Agreement of Sale at 11). Significantly, the Agreement of Sale does not
expressly incorporate the SDS as part of the agreement.
Upon review, we agree with the trial court that because there is no
language in the Agreement of Sale that expressly incorporated the SDS into
the Agreement of Sale, the representations in the SDS are not a part of that
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written agreement. See Holser, supra. Although Appellants generally assert
that the parol evidence rule does not bar evidence of a seller disclosure
statement, they have not set forth an argument of fraudulent inducement into
the contract and have not established that the fraudulent inducement
exception to the parol evidence rule applies.9 See Blumenstock, supra.
Therefore, the trial court did not abuse its discretion when it granted Dietrich’s
motion in limine and excluded evidence of other agreements as part of the
Agreement of Sale.
Finally, we turn to Appellants’ last claim, that the trial court erred in
granting Dietrich’s motion in limine to preclude the testimony of Appellants’
experts. However, before we address the merits of this issue, we must
consider whether Appellants have preserved this claim on appeal.
Our Rules of Appellate Procedure make clear that appellate briefs must
conform in all material respects to the briefing requirements set forth in the
Rules. Pa.R.A.P. 2101. Arguments must be followed by an appropriate
discussion and citation of pertinent authorities. See Pa.R.A.P. 2119(a).
Where an appellant fails to properly raise or develop issues on appeal, or
where a brief is wholly inadequate to present specific issues for review, a court
9 We note that even if this exception applied, it would permit evidence establishing the fraudulent inducement for the purpose of invalidating the sales contract. It would not permit evidence of a secondary document as part of the Agreement of Sale to attempt to establish a claim for breach of contract or a UTPCPL violation.
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will not consider the merits of the claims raised on appeal. Butler v. Illes,
747 A.2d 943, 944 (Pa.Super. 2000) (holding appellant waived claim where
she failed to set forth adequate argument concerning her claim on appeal;
appellant’s argument lacked meaningful substance and consisted of mere
conclusory statements; appellant failed to cogently explain or even tenuously
assert why trial court abused its discretion or made error of law). See also
Lackner v. Glosser, 892 A.2d 21 (Pa.Super. 2006) (explaining appellant’s
arguments must adhere to rules of appellate procedure, and arguments which
are not appropriately developed are waived; arguments not appropriately
developed include those where party has failed to cite relevant authority in
support of contention). Indeed, “[t]his Court will not act as counsel and will
not develop arguments on behalf of an appellant.” Coulter v. Ramsden, 94
A.3d 1080, 1088 (Pa.Super. 2014), appeal denied, 631 Pa. 719, 110 A.3d 998
(2014).
Instantly, Appellants’ one paragraph discussion of their final claim does
not contain any citation to or discussion of pertinent authority and does not
make any attempt to apply the facts of record to controlling authority in
support of their claim. Appellants’ conclusory argument section, lacking any
citation to relevant case law, is woefully inadequate. We will not act as
Appellants’ counsel and develop their arguments. See Coulter, supra. Thus,
Appellants’ final issue is waived. Accordingly, we affirm.
Order affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq.
Prothonotary
Date: 06/23/2026
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