Rizzo v. Michener

• Decision Date: 28 December 1990
• Docket Number: Nos. 1464,s. 1464
• Citation: 584 A.2d 973,401 Pa.Super. 47
• Parties: Gary M. RIZZO and Colleen P. Rizzo, H/W v. Andrianna Becker MICHENER and J.C. Ehrlich Co., Inc. d/b/a Taylor Exterminating. Appeal of J.C. EHRLICH CO., INC. d/b/a Taylor Exterminating. Gary M. RIZZO and Colleen P. Rizzo, H/W, Appellants, v. Andrianna Becker MICHENER and J.C. Ehrlich Co., Inc., d/b/a Taylor Exterminating. Phila. 1990 and 1558 Phila. 1990.
• Court: Pennsylvania Superior Court

Page 973

584 A.2d 973

401 Pa.Super. 47

Gary M. RIZZO and Colleen P. Rizzo, H/W v. Andrianna Becker MICHENER and J.C. Ehrlich Co., Inc. d/b/a

Taylor Exterminating.

Appeal of J.C. EHRLICH CO., INC. d/b/a Taylor Exterminating.

Gary M. RIZZO and Colleen P. Rizzo, H/W, Appellants, v. Andrianna Becker MICHENER and J.C. Ehrlich Co., Inc., d/b/a

Taylor Exterminating.

Nos. 1464 Phila. 1990 and 1558 Phila. 1990.

Superior Court of Pennsylvania.

Argued Oct. 28, 1990.

Filed Dec. 28, 1990.

Randolph A. Scott, Warrington, for Ehrlich, appellants (at 1464) and appellees (at 1558).

Peter M. Hileman, Doylestown, for Rizzo, appellants (at 1558) and appellees (at 1464).

Stephen G. Maliszewski, Quakertown, for Michner, appellees (at 1464 and 1558).

Before CAVANAUGH, TAMILIA and HESTER, JJ.

CAVANAUGH, Judge:

Gary M. Rizzo and his wife, Colleen P. Rizzo, purchased real estate in Bucks County, Pennsylvania. The Agreement of Sale was signed in January, 1987 and settlement took place in April, 1987, at which time the buyers were represented by an attorney. The purchase price of the real estate was $115,000.00 and it included a one-story ranch house and four and one-half acres of land. The Agreement of Sale had a termite inspection clause, and the seller, Andrianna Becker Michener, hired J.C. Ehrlich Company, Inc., which did business as the Taylor Exterminating Company, to perform the termite inspection. The report stated "no visible evidence of infestation from wood destroying insects was observed." It also noted that areas of the property were "obstructed or inaccessible" and the "rear crawlspace was inaccessible." Shortly after settlement, Mr. Rizzo, who worked as a carpenter, was about to embark on extensive renovations to the property when he noticed flying insects. Subsequent investigation disclosed extensive termite damage to the house. ¹ The damage was so great that the Rizzos decided to demolish the house and build a new structure.

The Rizzos commenced an action against Andrianna Becker Michener and J.C. Ehrlich Company, Inc., d/b/a Taylor Exterminating Company. The action against J.C. Ehrlich Company set forth four causes of action for negligence, breach of contract, violation of the Unfair Trade Practices and Consumer Protection Law, and interference with the possession of real estate. The action against Ms. Michener alleged interference with the possession of real estate, fraud, and intentional infliction of emotional distress.

The matter was tried before Kelton, J. and a jury in September, 1989. At the conclusion of the plaintiff's case, J.C. Ehrlich Company moved for a nonsuit as to three of the four causes of action against it. The motion for nonsuit on the theory of breach of contract and violation of the Consumer Protection Act was denied but the court refused to charge the jury on alleged violations of the Consumer Protection Law. A nonsuit was granted as to the count claiming interference with the possession of real estate. A nonsuit was also entered in favor of Ms. Michener on the counts alleging interference with the possession of real estate and intentional infliction of emotional distress. A verdict was entered in favor of the Rizzos against J.C. Ehrlich Company, only, in the amount of $100,696.00. ²

J.C. Ehrlich Company filed a motion for new trial. The Rizzos filed a petition to mold the jury verdict, requesting damages under Pa.R.C.P. 238, and also triple damages and attorney's fees under the Consumer Protection Law. The court below denied the motion of J.C. Ehrlich Company, Inc. for a new trial and the Rizzos' request for damages under the Consumer Protection Law. However, delay damages were granted under Pa.R.C.P. 238 in the amount of $13,071.91. Cross appeals were subsequently filed by the Rizzos and J.C. Ehrlich Company with this court, and they have been consolidated.

The first issue is whether the court below erred in refusing to submit the question of contributory or comparative negligence on the part of the plaintiffs, the Rizzos, to the jury. Counsel for J.C. Ehrlich Company objected to the charge, as it did not refer to the issue of comparative or contributory negligence. The court, in its opinion, concluded that since there was no evidence of contributory negligence the trial court was not required to instruct the jury on the issues of comparative or contributory negligence. ³

The court properly refused to charge on the issue of comparative negligence. ⁴ The Pennsylvania Comparative Negligence Act only applies to negligence resulting in death or injuries to persons or damage to property. There must be a tortious episode which causes damage to tangible real or personal property. Wescoat v. Northwest Savings Association, 378 Pa.Super. 295, 548 A.2d 619 (1988). See also, Butler v. Flo-Ron Vending Co., 383 Pa.Super. 633, 557 A.2d 730 (1989). In Wescoat, supra, we held that the comparative negligence statute did not apply to a negligence action wherein the defendant failed to procure an insurance policy for the plaintiff and failed to notify the plaintiff that the insurance was not obtained. We determined that while the plaintiff had suffered a financial loss since he could not receive reimbursement from a non-existent disability insurance policy, this was not the type of injury to property contemplated in the act. We further held in Wescoat, supra, that since the comparative negligence statute did not apply, we must revert to the doctrine of contributory negligence which completely bars the plaintiff from recovery, if his negligence contributed to the result.

In the instant case, the alleged negligence by the defendant in not discovering the termites did not in any way result in the termite damage. The damage was done prior to the inspection as the evidence pointed to long existent termite damage. The negligence complained of by J.C. Ehrlich Company was that it failed to "discover the extensive evidence of termite damage." The failure to charge on the comparative negligence statute was proper as it was not applicable.

The error by the court below was in failing to charge on the issue of plaintiffs' contributory negligence. The existence of negligence is usually a question to be submitted to the jury upon proper instructions and the trial court should not remove the issue unless the facts leave no room for doubt. East Texas Motor Freight, Diamond Division v. Lloyd, 335 Pa.Super. 464, 484 A.2d 797 (1984). The charge of the trial court should not exclude any theory or defense that has support in the evidence. Gallo v. Yamaha Motor Corp. USA, 363 Pa.Super. 308, 526 A.2d 359 (1987). As noted in Robinson v. City of Philadelphia, 329 Pa.Super. 139, 148, 478 A.2d 1, 5 (1984): "If there is any evidence of contributory negligence, it would be an error not to charge the jury on the issue."

There was evidence that the plaintiffs' own lack of care in examining the house they purchased, coupled with the fact that the termite inspector allegedly did not have access to the rear crawlspace when he made the inspection, contributed to their loss. While there was evidence of negligence on the part of the termite exterminating company, there was also evidence of negligence on the part of the purchasers.

Mr. Rasbold, the representative of J.C. Ehrlich Company who made the inspection in connection with the termite certification required in the agreement of sale, testified that on the date of the inspection Mrs. Michener, who was then known by the name of Andrianna Becker, would not allow him access to the rear crawlspace space, which had a door approximately 30"' X 30"' '. According to Mr. Rasbold, the door had a padlock on it, which was locked, and Ms. Becker did not know if she had a key. When Mr. Rasbold told her that he had to gain access for the inspection, she said, "There is no way. It is winterized. It is all sealed up." Since Mr. Rasbold could not inspect the rear crawlspace, he noted in his report that the "rear crawlspace was inaccessible." The report also noted that there was an area of the property that was obstructed or inaccessible. The house was a one-story building and the principal termite damage appears to have originated from a rotted tree stump located in the rear crawlspace over which the back part of the house was built.

Mr. Rasbold did not suspect that termites were present in the rear crawlspace. He testified as follows:

A. I wasn't suspicious but what I wanted to cover was getting the inspection form to be aware that that crawlspace hadn't been inspected. That would turn the yellow light on for them to proceed further. (Emphasis added.) ⁵

The Rizzos made five trips to Ms. Michener's home before the settlement. Mr. Rizzo was aware of the door to the rear crawlspace and testified at trial that although the door had padlock on it, it was not locked. He noticed the door to the crawlspace on his first visit to the property. Nothing prevented Mr. Rizzo from opening the door to the rear crawlspace and looking in. Ms. Michener stored wine in the crawlspace so that access to it would have been possible. The joists over the crawlspace were badly deteriorated. Mr. Parker, an entomologist, testified at trial as an expert on behalf of the Rizzos. He was questioned whether a layman would have discovered the presence of termites if he had looked in the crawlspace. His testimony was as follows:

Q. Did it require, in your opinion, an expert to determine that those joists were damaged or is it something that any lay person could have seen?

A. I believe a lay person could have seen that there was something wrong with those wooden elements of the house.

Mr. Parker testified that the rear crawlspace was about three feet high, and "it's pretty easy to get around in there." Mr. Rizzo observed the door to the rear crawlspace on the occasion of his first visit to the property. At that time it was covered in plastic and although there was a padlock on the door, it was not locked. He never...