Jalowiecki v. Leuc

• Decision Date: 09 December 1981
• Citation: 182 N.J.Super. 22,440 A.2d 21
• Parties: Edward JALOWIECKI and Sharon Jalowiecki, his wife, Plaintiffs-Appellants, v. Hugo LEUC and Dorothy Leuc, his wife, Defendants and Third-Party Plaintiffs-Respondents, v. BERMUDA POOL CO. and Monarch Pool Co., Inc., Third-Party Defendants.
• Court: New Jersey Superior Court — Appellate Division

Page 22

182 N.J.Super. 22

440 A.2d 21

Edward JALOWIECKI and Sharon Jalowiecki, his wife, Plaintiffs-Appellants, v. Hugo LEUC and Dorothy Leuc, his wife, Defendants and Third-Party Plaintiffs-Respondents, v. BERMUDA POOL CO. and Monarch Pool Co., Inc., Third-Party Defendants.

Superior Court of New Jersey, Appellate Division.

Submitted Oct. 27, 1981.

Decided Dec. 9, 1981.

Solomon & Ramer, Vernon for plaintiffs-appellants (Paul D. Solomon, Vernon, of counsel and on the brief).

Barry N. Chase, Newton, for defendants and third party plaintiffs-respondents.

Before Judges MICHELS, McELROY and J. H. COLEMAN.

The opinion of the court was delivered by

MICHELS, P. J. A. D.

Plaintiffs Edward Jalowiecki and Sharon Jalowiecki appeal from a judgment of the Law Division in favor of defendants Hugo Leuc and Dorothy Leuc, dismissing with prejudice plaintiffs' action to recover damages allegedly sustained when the septic system located on the property they purchased from defendants malfunctioned. Plaintiffs' action is based upon (1) an alleged violation of the "Standards for Construction of Individual Subsurface Sewage Disposal Systems" (N.J.A.C. 7:9-2.1 et seq.), promulgated by the Commissioner of Environmental Protection pursuant to the authority conferred by The Realty Improvement Sewerage and Facilities Act (1954), N.J.S.A. 58:11-23 et seq. (L.1954, c. 199, § 1 et seq.), and (2) an alleged knowing and intentional misrepresentation and concealment of material facts concerning the condition and functioning of the septic system.

The proofs at trial show that on August 4, 1977 plaintiffs purchased a one-family house in Highland Lakes, New Jersey, from defendants. In May 1977, prior to purchasing the house, plaintiffs visited the property on several occasions and on May 31, 1977 signed a contract to purchase. From their first visit to the house until the closing of title on August 4, 1977 plaintiffs were furnished information about the house and property in response to their various questions. In addition, plaintiffs were permitted to conduct whatever inspections of the house and property they chose. During the summer of 1977 plaintiffs visited the house several times to take measurements, get instructions on how the outdoor pool operated and, on one occasion, just to pay a social call. Plaintiffs never noticed any indication of a problem with the septic system or with flooding in the basement or backyard during any of their visits to the property. Plaintiff Edward Jalowiecki testified that he inspected the entire property, including the basement of the house, and was convinced that the basement was dry and had not had water in it. He also testified that he was satisfied that "(t)here was no evidence of any water leaking or any water problem" and that "(t)he house was soundly constructed and was dry." Plaintiffs testified that prior to closing they never felt that defendants were trying to hide or withhold anything from them. Defendant Hugo Leuc also indicated to plaintiffs where he believed the septic tank was located and gave them the original permit for the septic system, which contained a sketch of the system's layout and location.

On August 4, 1977 plaintiffs closed title and took possession. Ten days later plaintiffs began to experience problems with the septic system. The system backed up, causing the toilet and drainpipe in the ground level basement to overflow. In the early part of September plaintiffs called defendants to ask if they had ever had any problems with the septic system, to which defendants responded in the negative. Since plaintiffs were still unsure of the source of the problem, they fixed the seal on the basement toilet and capped the drainpipe. Although these measures alleviated the water in the house, the ground in the backyard in the area of the septic system began to be constantly wet. Water apparently was seeping up through the ground. At that time, however, plaintiffs thought that water might be coming from a leak in the above-ground pool located over one of the two seepage tanks which constituted the drainage area for the septic system. The location of the pool over that portion of the septic system drainage area violated N.J.A.C. 7:9-2.22 of the "Standards for Construction of Individual Subsurface Sewage Disposal Systems."

By late November 1977 the backyard was so wet that plaintiffs arranged to have the septic tank pumped out. This, however, did not cure the problem, and the backyard remained wet the entire winter. In the spring of 1978 plaintiffs drained the pool and patched several leaks. Thereafter, one of the pool's sides caved in when they attempted to refill it. By the time the pool was repaired, plaintiffs claimed that the backyard could not be used because the water on the ground was beginning to smell. They retained an engineering company to inspect the septic system and again arranged to have the tank pumped out. After various tests were run it was determined that a new disposal area for the septic system was needed, requiring the removal of the pool. Subsequently the pool was removed and sold, and a new disposal area, consisting of four leach pipes was connected to the existing septic tank. This finally remedied the problem.

Defendants testified that they never experienced any malfunctioning of the drainage system in the house; that the system was never in need of repairs, and that there was no septic odor in the house. Furthermore, they stated that from 1971 until 1977-the time they owned the house-they never noticed any surface water in the backyard, or detected any unusual odor, nor did they ever have a problem with the basement toilet and drainpipe or the septic system in general. They also testified that they had answered all of plaintiffs' questions to the best of their knowledge in an attempt to educate the buyers about the house. This included giving plaintiffs instructions on several occasions as to the way to care for the pool and turning over papers pertaining to the appliances in the house and the septic system in the backyard.

At the end of the presentation of plaintiffs' evidence the trial judge, ostensibly concluding that plaintiffs had an implied private cause of action for damages based on a violation of N.J.A.C. 7:9-2.22, nonetheless held that they had failed to prove that the violation proximately caused the malfunctioning of the septic system and resultant damage. At the close of all of the evidence the judge found that while the septic system was faulty, defendants did not knowingly and intentionally misrepresent or conceal its condition. Judgment was thereafter entered in favor of defendants, and this appeal followed.

Sufficiency of the Evidence

The principal thrust of plaintiffs' challenge to the adverse judgment entered with respect to the cause of action based upon misrepresentation and concealment is that it is contrary to the weight of the evidence. We disagree. We have studied the entire record in light of the contentions raised by plaintiffs and are entirely satisfied that the findings and conclusions of the trial judge are amply supported by the evidence, and we discern no good reason for disturbing them. Leimgruber v. Claridge Assoc., Ltd., 73 N.J. 450, 455-456, 375 A.2d 652 (1977); Rova Farms Resort v. Investors Ins. Co., 65 N.J. 474, 483-484, 323 A.2d 495 (1974); State v Johnson, 42 N.J. 146, 161-162, 199 A.2d 809 (1964). We simply add that plaintiffs' reliance upon Weintraub v. Krobatsch, 64 N.J. 445, 317 A.2d 68 (1974), is misplaced because here the trial judge specifically found that defendants did not knowingly and intentionally misrepresent or conceal information of a significant nature concerning the condition and operation of the septic system.

Plaintiffs Right to Maintain A Private Cause of Action for Damages Under N.J.A.C. 7:9-2.22

Plaintiffs also contend that they are entitled to a judgment for damages under N.J.A.C. 7:9-2.22. While not fully or clearly articulated, the issue raised by this contention is whether the regulation creates a private cause of action for damages in favor of plaintiffs.

The regulation, N.J.A.C. 7:9-2.22, which is contained in the "Standards For Construction of Individual Surface Sewage Disposal Systems" (N.J.A.C. 7:9-2.1 et seq.), provides:

The area to be used for sewage disposal shall be selected and maintained so that it is free from encroachments by driveways, accessory buildings, additions to the main building and trees or shrubbery whose roots may cause clogging of any part of the system. The area of sewage disposal shall not be located under driveways, parking lots (paved or otherwise), accessory buildings, additions to main buildings and so forth. (N.J.A.C. 7:9-2.22)

These standards constitute the rules of the Division of Water Resources and govern the design and installation of individual subsurface sewage disposal systems. N.J.A.C. 7:9-2.1. They were promulgated by the Commissioner of Environmental Protection (formerly the State Commissioner of Health) pursuant to N.J.S.A. 58:11-36 of the Realty Improvement Sewerage and Facilities Act (1954) (the act) which provides the statutory basis for regulating the effect of certain realty improvements, including individual sewerage facilities, upon the public health. N.J.S.A. 58:11-23 et seq. The standards which have been promulgated constitute the minimum requirements to be met by applicants for certifications under the act. N.J.S.A. 58:11-36. If these standards are not met and the proper application and certification not filed and received, a violator will be subject to penalties. N.J.S.A. 58:11-38. For noncompliance a violator may be fined for each offense or enjoined from further violations. See N.J.S.A. 58:11-39 to N.J.S.A. 58:11-41.

Here the proofs show that in 1972 defendants installed an above-ground swimming pool over one of the seepage tanks constituting the disposal area of the septic system. The installation of the swimming...