Adams v. Euliano

• Citation: 299 Pa.Super. 348,445 A.2d 788
• Parties: Dolores Y. ADAMS, Polly Feidler and Sally Bojarski, Appellants, v. Adeline EULIANO.
• Decision Date: 14 May 1982
• Court: Superior Court of Pennsylvania

Page 788

445 A.2d 788 299 Pa.Super. 348 Dolores Y. ADAMS, Polly Feidler and Sally Bojarski, Appellants,
v.
Adeline EULIANO. Superior Court of Pennsylvania. Argued Feb. 8, 1982.
Filed May 14, 1982.

Page 789

[299 Pa.Super. 349] Richard T. Ruth, Erie, for appellants.

Dennis V. Williams, Erie, for appellee.

Before BROSKY, CIRILLO and POPOVICH, JJ.

BROSKY, Judge.

Appellants, Adams, Feidler and Bojarski, appeal from the order of the trial court denying their motion to take off a compulsory nonsuit. We reverse and remand for trial.

In PeAir v. Home Ass'n of Enola Legion No. 751, 287 Pa.Super. 400, 403-404, 430 A.2d 665, 666-667 (1981), we said:

A nonsuit should be entered only in a clear case. McMillan v. Mountain Laurel Racing Inc., 240 Pa.Super. 248, 367 A.2d 1106 (1976); DiGiannantonio v. Pittsburgh R. Co., 402 Pa. 27, 166 A.2d 28 (1960); Dunmore v. McMillan, 396 Pa. 472, 152 A.2d 708 (1959). In describing how clear the case must be, it has been said that a nonsuit can be entered

299 Pa.Super. 350] only when it is inconceivable, on any reasonable hypothesis, that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved. Borisoff v. Penn Fruit Company, Inc., 165 Pa.Super. 572, 574, 69 A.2d 167 (1949)

Also, it has been said that a nonsuit should be entered only where the facts and circumstances lead unerringly to the conclusion that the plaintiff has failed to prove his case. Korpa v. Stuyvestant Life Ins. Co., 236 Pa.Super. 581, 351 A.2d 682 (1975).

When so viewed, the evidence is as follows:

On January 27, 1979, appellant, Dolores Adams, visited appellee, Adeline Euliano's house with a possible aim of purchasing it. ¹ A tour of the building disclosed, upon inspection, several holes in floors. Euliano explained to Adams that the holes were in one situation caused by a leaking garbage

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disposal or water leaks, and in another circumstance was caused by faulty wiring. A real estate appraiser who detected some of the holes was told that they were caused by a dishwasher which overflowed. Appellants purchased the house and one month after moving in they discovered, when they engaged a repairman to fix the holes in the floor, that the house was infested with termites. An exterminator was then employed to inspect the house for termites. He determined the house was infested. He stated also that in his opinion an untrained person would not have been able to determine that there was a termite problem.

Adams claimed, below, that Euliano fraudulently misrepresented to her the condition of her house. Our courts have consistently held that a false representation is fraudulent only when by clear and convincing evidence it is demonstrated that the representation was made knowingly with the intent to deceive or in reckless disregard for the truth or [299 Pa.Super. 351] falsity of the matter. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981); Brentwater Homes, Inc. v. Weibly, 471 Pa. 17, 369 A.2d 1172 (1977); Thomas v. Seaman, 451 Pa. 347, 304 A.2d 134 (1973); Bachman v. Artinger, 285 Pa.Super. 57, 426 A.2d 702 (1981); Glanski v. Ervine, 269 Pa.Super. 182, 409 A.2d 425 (1979); Baker v. Rangos, 229 Pa.Super. 333, 324 A.2d 498 (1974); Shane v. Hoffmann, 227 Pa.Super. 176, 324 A.2d 532 (1974). The lower court granted the compulsory nonsuit because it held that the appellants had failed to establish the requisite scienter to prove that a fraudulent misrepresentation had occurred.

The appellants submitted the following evidence, which the record supports, to the trial court concerning Euliano's intent to deceive. First, after the appellants purchased the house and...