Opinion

HENA v. VANDEGRIFT

Court: District Court, W.D. Pennsylvania
Filed: Mar 10, 2020
Cited by: 0 cases
Authority: More cited than 29.2%

holding the parol evidence rule applied to bar admission of extraneous agreements about whether the property was fit for bottling because the parties agreed to a broad integration clause covering all conditions of the property

How later courts described this case

holding the parol evidence rule applied to bar admission of extraneous agreements about whether the property was fit for bottling because the parties agreed to a broad integration clause covering all conditions of the property
explaining that the plaintiff’s “speculation” and “broad conjecture” about what a party had knowledge of under the RESDL was insufficient to overcome a motion for summary judgment”
“Judges are not like pigs, hunting for truffles buried in briefs.”
recognizing the plaintiff at trial had the burden to establish the elements of a claim under the RESDL, including the defendants’ affirmative duty, their breach of the duty, causation, and damages

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ALLEN HENA, )

)

Plaintiff, ) Civil Action No. 18-762

v. )

)

RYAN VANDEGRIFT, )

)

Defendants. )

OPINION

CONTI, Senior District Judge.

I. Introduction

This diversity action arises out of a real estate transaction involving the purchase of 1645

Pegher Lane in Sewickley, Pennsylvania (the “Pegher-Lane property”), by plaintiff Allen Hena

(“Hena” or “plaintiff”) from pro se defendant Ryan Vandegrift (“Vandegrift” or “defendant”). Hena

in the complaint alleges that Vandegrift made untruthful statements in a Seller Disclosure Statement

(“SDS”) and attempted to conceal defective conditions in the Pegher-Lane property to deceive Hena

into purchasing the real property. (ECF No. 1.) Hena asserts three state-law claims against defendant

based upon those allegations: (A) count one—fraud under Pennsylvania tort law; (B) count two—

violations of the Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”),

73 PA. CONS. STAT. § 201-1, et seq; and (C) count three—violations of the Pennsylvania Residential

Real Estate Transfers Law , 68 PA. CONS. STAT. § 7101, et seq., specifically the Real Estate Seller

Disclosure Law (“RESDL”), 68 PA. CONS. STAT. §§ 7301-7315. (Id.)

Currently pending before the court is a motion for summary judgment filed by Vandegrift.

(ECF No. 30.) Vandegrift argues that he is entitled to summary judgment because the undisputed

evidence of record shows that plaintiff cannot prove that Vandegrift engaged in fraud with respect to

the sale of the Pegher-Lane property. (Id.) Vandegrift asserts, among other things, that the parol

evidence rule bars the introduction of the SDS into evidence at trial. For the reasons set forth below,

Vandegrift’s motion for summary judgment will be granted in part and denied in part.

The motion will be granted with respect to Hena’s fraudulent inducement claim because the

parties in the “Standard Agreement for the Sale of Real Estate” dated March 26, 2016 (the

“Agreement”), agreed to a broad integration clause, and, therefore, the parol evidence rule applies to

bar introduction of the SDS upon which Hena relies to prove the fraudulent inducement claims. The

motion will be granted with respect to Hena’s fraudulent concealment claim because Hena did not

adduce evidence upon which a reasonable jury could find that he justifiably relied upon Vandegrift’s

alleged concealment of the leaking roof at the Pehger-Lane property. The motion will be granted

with respect to Hena’s UTPCPL claim because he cannot prove as a matter of law that he justifiably

relied upon any representations made by Vandegrift in the SDS in light of the broad integration

clause in the Agreement. The motion will be granted with respect to the RESDL claim based upon

Vandegrift’s answers to paragraphs 3(c) (concerning the need for a certificate of occupancy), 5(f)

(concerning Vandegrift’s knowledge about water in the basement), and 20(F) (concerning

Vandegrift’s knowledge about material defects at the property not disclosed elsewhere) of the SDS

because Hena did not adduce evidence to show that Vandegrift willfully or negligently provided a

false answer to those paragraphs of the SDS. The motion for summary judgment will be denied in all

other respects because Hena—as set forth in this opinion—adduced evidence sufficient to create

triable issues of fact under the RESDL.

II. Procedural History

This case was initiated on June 11, 2018, when Hena filed the three-count complaint against

Vandegrift. (ECF No. 1.) On August 31, 2018, the court entered a default judgment against

Vandegrift in the amount of $530,580.00 “plus attorney’s fees and punitive damages…for his failure

to plead or otherwise defend.” (ECF No. 13 at 2.) On September 10, 2018, Vandegrift filed a motion

to set aside the default judgment. (ECF No. 14.) On November 2, 2018, Vandegrift—at the direction

of the court—filed an answer. (ECF No. 19.) On November 14, 2018, the court granted the motion to

set aside the default judgment. The parties proceeded to mediation, which was not successful, and to

conduct discovery.

On July 2, 2019, Vandegrift filed the pending motion for summary judgment, brief in

support, and concise statement of material facts. (ECF Nos. 30-32.) On July 29, 2019, Hena filed a

response in opposition to the motion for summary judgment, a brief in support, and concise statement

of material facts. (ECF Nos. 33-35.) On August 13, 2019, Vandegrift filed a reply brief in support of

his motion for summary judgment. (ECF No. 36.) On August 22, 2019, Vandegrift filed a combined

concise statement of material facts (“CCSMF”). (ECF No. 37.)

On November 20, 2019, the court ordered Hena to file an amended statement of material

facts and amended brief in opposition to Vandegrift’s motion for summary judgment that complied

with Local Rule 56(C).1 The court permitted Vandegrift to file a reply brief and reply statement of

1 Local Rule 56(C) provides:

C. Opposition Requirements. Within 30 days of service of the motion for

summary judgment, the opposing party shall file:

1. A Responsive Concise Statement. A separately filed concise

statement, which responds to each numbered paragraph in the moving

party's Concise Statement of Material Facts by:

a. admitting or denying whether each fact contained in the moving

party's Concise Statement of Material Facts is undisputed and/or

material;

b. setting forth the basis for the denial if any fact contained in the

moving party's Concise Statement of Material Facts is not admitted

in its entirety (as to whether it is undisputed or material), with

appropriate reference to the record (See LCvR 56.B.1 for

instructions regarding format and annotation); and

material facts to address Hena’s amended submissions. On December 3, 2019, Hena filed an

amended brief in opposition to the motion for summary judgment and attached an amended statement

of material facts and amended combined concise statement of material facts. (ECF No. 40.)

Vandegrift did not file a reply brief or reply statement of facts in response to Hena’s amended

submissions.

Vandegrift’s motion for summary judgment having been fully briefed is now ripe to be

decided by the court.

III. Factual Background

The factual background is derived from the undisputed evidence of record and notes the

disputed facts of record. Each disputed fact is to be viewed in the light most favorable to the

nonmoving part, i.e., plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“The

evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his

favor.”).

Vandegrift’s Ownership of the Pegher-Lane Property

Prior to June 15, 2016, Vandegrift, who is a licensed real estate agent, owned the Pegher-

Lane property, which is a “single-story, contemporary style, single-family dwelling…constructed in

c. setting forth in separately numbered paragraphs any other material

facts that are allegedly at issue, and/or that the opposing party asserts

are necessary for the Court to determine the motion for summary

judgment;

2. Memorandum in Opposition. The memorandum of law in opposition

to the motion for summary judgment must address applicable law and

explain why there are genuine issues of material fact to be tried and/or why

the moving party is not entitled to judgment as a matter of law; and

3. Appendix. Documents referenced in the Responsive Concise Statement

shall be included in an appendix. (See LCvR 56.B.3 for instructions

regarding the appendix).

LCvR 56(C).

1970.” (Def. Ex. F (ECF No. 32-7 at 2; Pl. Ex. N at 1.) Vandegrift never resided at the Pegher-Lane

property. (Pl. Ex. M at 2). During Vandegrift’s ownership of the Pegher-Lane property, he:

“performed extensive renovations to the exterior of the house, and…constructed an addition on the

rear side of the house[,]” (Pl. Ex. N at 1); constructed a deck on the rear of the house; relocated the

staircase inside the home; replaced windows and doors inside the house; replaced the garage doors;

replaced the siding; replaced the roof; and made various cosmetic updates throughout the home, (Pl.

Ex. M). The renovations and construction of the addition on the Pegher-Lane property

“were…performed without the required building permits, inspections, and approvals” by the Franklin

Park Borough (“Franklin Park”). (Id. at 5; Pl. Ex. N at 1.)

According to Vandegrift, he contracted with Amendola Remodeling, which is owned by

Anthony Amendola, Jr. (“Amendola”), to perform work on the Pegher-Lane property and “to secure

the permits.” (Id.; Pl. Ex. P at 4.) According to Amendola, however, he worked at Vandegrift’s

direction and was not the general contractor for the work performed on the Pegher-Lane property.

(Pl. Ex. P at 10, 16-17.) Amendola testified that Vandegrift did not ask him to procure any building

or construction permits for the work being performed, and it was Vandegrift’s responsibility to obtain

“inspections” of the work performed on the Pegher-Lane property. (Id. at 16-17.)

Vandegrift’s Listing of the Pegher-Lane Property and Signing of the SDS

On or around September 22, 2015, Vandegrift signed a “Standard Exclusive Listing

Contract” with RE/MAX Select, which provided RE/MAX Select with the exclusive right to sell the

Pegher-Lane property. (CCSMF (ECF No. 37) ¶ 1.) On the same day, Vandegrift completed the SDS.

(Id. ¶ 8.) The SDS included various notices to the buyer and seller, including, notice that the SDS “is

not a substitute for any inspections or warranties that the Buyer may wish to obtain” or “a warranty

of any kind by the Seller….” (Def. Ex. F (ECF No. 32-7) at 1.) Page nine of the SDS provided, in

pertinent part:

The Buyer acknowledges that this statement is not a warranty and that, unless stated

otherwise in the sales contract, the Buyer is purchasing this Property in its present

condition. It is the Buyer’s responsibility to satisfy himself or herself as to the condition

of the Property. The Buyer may request that the Property be inspected, at the Buyer’s

expense and by qualified professionals, to determine the condition of the structure or

its components.

(Id. at 9.)

In the SDS, Vandegrift answered “No” to the following questions of import to this

case:

- Will a Certificate of Occupancy be required by the municipality and/or government

unit?

- Has the roof ever leaked during your ownership?

- Do you know of any current or past problem with the roof, attic, gutters or

downspouts?

- Are you aware of any water leakage, accumulation or dampness within the

basement, garage, or crawl space?

- Do you know of any violations of federal, state, or local laws or regulations relating

to this Property?

- Are you aware of any material defects to the Property, dwelling, or fixtures which

are not disclosed elsewhere on this form?

(Def. Ex. F (ECF No. 32-7) at 1-8 ¶¶ 3(c), 4(c) and (d), 5(f), 20(B) and (F).) Vandegrift in his answer

filed in this case admitted that “there were leaks with the roof over the winter of 2015-16…during [his]

ownership” of the Pegher-Lane property. (ECF No. 19 at 4.)

In the SDS, Vandegrift answered “Yes” to the following questions:

- Has the roof been replaced, repaired or overlaid during your ownership?

- Are you aware of any past or present problems with the driveways, walkways,

patios, or retaining walls on the property?

- Have you made any additions, structural changes, or other alterations to the

property during your ownership?

- Did you obtain all necessary permits and approvals and was all work in compliance

with building codes?

(Def. Ex. F (ECF No. 32-7) at 1-8 ¶¶ 4(b), 7(c), 8(a) and (b).) Vandegrift in the SDS described the

“additions, structural changes, or other alterations” done to the Pegher-Lane property as a “Total

Rehabilitation.” (Def. Ex. F. (ECF No. 32-7 at 2.) The SDS provided:

Note to Buyer: The PA Construction Code Act, 35 P.S.§7210.101 et. Seq. (effective

2004), and local codes establish standards for building or allering [sic] properties.

Buyers should check with the municipality to determine if permits and/or approvals

were necessary for disclosed work and if they were obtained. Where required permits

were not obtained, the municipality might require the current owner to upgrade or

remove changes made by prior owners. Buyers can have the property inspected by

an expert in codes compliance to determine if issues exist. Expanded title insurance

may be available for Buyers to cover the risk of work done to the property by previous

owners without a permit or approval.

(Id.)

Hena’s Purchase of the Pegher-Lane Property

Hena identified the Pegher-Lane property as a potential home to purchase via Realtor.com

and Redfin.com. (CCSMF (ECF No. 37) ¶ 2.) On March 5, 2016, Hena toured the Pegher-Lane

property with his real estate agent, Sara Minshull. (Id. ¶ 3.) Hena chose to submit an offer to

purchase the Pegher-Lane property because it “was in a good area, had good styling, and a good

amount of land.” (Id. ¶ 4.) During the real estate transaction for the purchase of the Pegher-Lane

property, Hena was represented by real estate agent Keith Jimenez (“Jimenez”). (Id. ¶ 5.)

Hena and Vandegrift engaged in negotiations with respect to Hena’s purchase of the Pegher-

Lane property. (CCSMF (ECF No. 37) ¶ 1.) On March 26, 2016, they entered into the Agreement

pursuant to which Hena agreed to purchase the Pegher-Lane property for $457,500.00.2 (CCSMF

(ECF No. 37) ¶ 6.) Paragraph 13(B) of the Agreement provided that:

2 At all times during which the Pegher-Lane property was marketed by RE/MAX

Select, Vandegrift lived in Miami Beach, Florida. (CCSMF (ECF No. 37) ¶ 7.)

Vandegrift and Hena met in person for the first time after Hena purchased the Pegher-

Lane property. (Id.

Except as stated in Paragraph 13(C), if the result of any Inspection elected in Paragraph

12(C) is unsatisfactory to Buyer, Buyer will, within the stated Contingency Period[

of 15 days]:

1. Accept the Property within the information stated in the Report(s) and agree to the

RELEASE in Paragraph 28 of this Agreement….

(Def. Ex. E (ECF No. 32-6) at 8 ¶ 13(B)(1).) Paragraph 25 of the Agreement provided, in pertinent

part:

(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.

(B) Unless otherwise stated in this Agreement Buyer has inspected the Property

(including fixtures and any personal property specifically listed herein) before

signing this Agreement or has waived the right to do so, and agrees to

purchase the Property IN ITS PRESENT CONDITION, subject to inspection

contingencies elected in this Agreement. Buyer acknowledges that Brokers, their

licensees, employees, officers or partners have not made an independent

examination or determination of the structural soundness of the Property, the age

or condition of the components, environmental conditions, the permitted uses, nor

of condition existing in the locale where the Property is situated; not have they

made a mechanical inspection of any of the systems contained therein.

(Def. Ex. E (ECF No. 32-6) at 11 ¶ 25.)

Paragraph 28 of the Agreement provided:

RELEASE (9-05)

Buyer releases, quit claims and forever discharges SELLER, ALL BROKERS,

their LICENSEES, EMPLOYEES and any OFFICER or PARTNER of any one

of them and any other PERSON, FIRM or CORPORATION who may be liable

by or through them, from any and all claims, losses or demands, including, but not

limited to, personal injury and property damage and all of the consequences thereof,

whether known or not, which may arise from the presence of termites or other word-

boring insects, radon, lead-based paint hazards, mold, fungi or indoor air quality,

environmental hazards, any defects in the individual on-lot sewage disposal system or

deficiencies in the on-site water service system, or any defects or conditions on the

Property. Should Seller be in default under the terms of this Agreement or in violation

of any Seller disclosure law or regulation, this release does not deprive Buyer of any

right to pursue any remedies that may be available under law or equity. This release

will survive settlement.

(Def. Ex. E (ECF No. 32-6) at 12 ¶ 28 (emphasis in italics added).)

Hena received a copy of the SDS and reviewed it prior to executing the Agreement. (CCSMF

(ECF No. 37) ¶ 9.) On March 26, 2016, Hena executed the Agreement and acknowledged his receipt

of the SDS via his signature. (Id. ¶ 10.)

Pre-Purchase Inspection

In paragraph 12(c) of the Agreement, Hena waived his right to inspect or investigate two

matters: (A) deeds, restrictions, and zoning; and (B) property boundaries. (CCSMF (ECF No. 37) ¶

13.) Hena elected to complete “Home/Property Inspections and Environmental Hazards.” (Id. ¶ 14.)

Hena retained Clifford Ardinger (“Ardinger”) to perform an inspection of the Pegher-Lane property.

(Def. Ex. G (ECF No. 32-8) at 1; CCSMF (ECF No. 37) ¶ 15.) On April 5, 2016, Ardinger performed

the home inspection and thereafter completed a “Home Inspection Report[.]” (Def. Ex. G (ECF No.

32-8) at 1.) The “Report Summary” of the Home Inspection Report provides, in pertinent part, that

there were no “Major Concerns…Potential Safety Hazards….Improvement Items….[or] Items to

Monitor.” (ECF No. 32-8 at 3.) The section of the Home Inspection Report entitled “Roof” provides

that Ardinger viewed the entirety of the roof and inspected it from the roof. (Def. Ex. G (ECF No.

32-8 at 9.) Ardinger found the roof’s flashing, valleys, coverings, and plumbing vents to be

“[s]atisfactory[.]” (Id. at 9-10.) “Satisfactory” was the highest possible rating available on Ardinger’s

report. (Id.)

According to the Home Inspection Report, it had recently rained at the Pegher-Lane property.

(Def. Ex. G (ECF No. 32-8) at 4.) Ardinger found “Moisture Stains Present” on the “Fire Separation

Walls & Ceiling” in the “Garage/Carport[.]” (Def. Ex. G (ECF No. 32-8) at 18.) He included in the

report a picture of the “Garage/Carport” and described the picture as follows: “Appears to be past

moisture issues. Recommend using non toxic [sic] cleaner.” (Id. at 19.) In the “Basement” portion of

the Home Inspection Report, Ardinger indicated that he found “Indication of moisture” in the

basement and “Old stains.” (Id. at 40.) He included two photographs of the basement in the report,

which he captioned: (1) “Growth detected. Treatment recommend [sic][;]” and (2) “Possible growth

appears to be old. Would recommend treating with mold disinfectant and testing.” (Id.) Ardinger did

not find “Moisture stains” in the living room, dining room, bathrooms, bedrooms, or family room.

(Def. Ex. G (ECF No. 32-8) at 24-25,27-28, 30, 32-35, 37.)

After reviewing the Home Inspection Report, Hena requested a one-year home warranty “to

cover potential issues with the outdated air conditioner.” (CCSMF (ECF No. 37) ¶ 18.) Hena and

Vandegrift signed a “Change in Terms Addendum to Agreement of Sale” to include the one-year

home warranty. (Id.)

Hena’s Lease of the Pegher-Lane Property

Hena was unable to obtain financing for the purchase of the Pegher-Lane property on or before

the original agreed-upon closing date. (CCSMF (ECF No. 37) ¶ 20.) Hena, therefore, requested to lease

the Pegher-Lane property from Vandegrift from May 19, 2016, until June 16, 2016. (Id.) Vandegrift

agreed to lease Hena the property, and the parties executed a “Residential Lease[,]” which they singed

on May 18, 2016. (Id.) Hena was represented by Redfin, a tenant agent, and Vandegrift was represented

by RE/MAX Select Realty, a landlord agent with respect to the Residential Lease. (Id. ¶ 21.) Pursuant

to the Residential Lease, Hena paid Vandegrift $2,600.00 and resided in the Pegher-Lane property

from May 19, 2016, until June 16, 2016. (Id. ¶ 22.) Hena did not make any maintenance requests to

Vandegrift while he leased the Pegher-Lane property. (Id. ¶ 23.) The Residential Lease ended on June

16, 2019, which was the new date for the closing provided for in the Agreement. (Id. ¶ 24.)

Roof Issues and Citations Issued After Closing

After Hena closed on the Pegher-Lane property, a “heavy rain” occurred and he learned the

roof of the house leaked. (ECF No. 32-5 at 3.)

On November 23, 2016, Franklin Park issued Vandegrift a citation numbered MJ-05302-NT-

0000329-1916 (the “citation”) for “failure to obtain a Required Permit” at the Pegher-Lane property.

(CCSMF (ECF No. 37) ¶ 25.) Franklin Park emailed Vandegrift and raised various concerns with

respect to the Pegher-Lane property. (Pl. Ex. N at 2.) Franklin Park requested that Vandegrift obtain a

structural engineer to assess if (1) a required support beam and proper window headers were used at

the Pegher-Lane property, and (2) whether the general structure of the addition was “sound.” (Id.)

Franklin Park raised the following additional concerns:

· If addition is not structurally sound it all needs to be addressed.

· New steps inside need to be addressed from structure soundness[.]

· Roof needs attic access due to clearance above roofline being more than 30”[.]

· Windows in bedrooms do not have required 5 foot [sic] egress and need to be replaced.

· Electrical panel needs assessed and replaced because new work was done and there

are overloaded breakers and the required inspection was not done[.]

· New gutter system and drain pit need to be created in the yard for the portion that is

the addition to the house[.]

· Railings on stairway are not to code.

(Pl. Ex. N at 2.) Franklin Park required an “evaluation and report addressing these concerns.” (Id.)

On or about January 23, 2017, a summons was issued by the Magisterial District Court, which

was responsible for enforcing the citation. On February 2, 2017, Vandegrift accepted the summons.

(Id. ¶ 26.)

Post-Closing Investigation of the Pegher-Lane Property

In or about May 2017, counsel for Hena retained Randal L. Exley (“Exley”), a professional

engineer with Capstone Structural Engineering & Consulting P.C., “to perform an investigation into

the potential non-disclosure issues [related to renovations and the construction of an addition to the

Pegher-Lane property by Vandegrift] and to perform an inspection of the residence regarding the

concerns raised by…[Franklin Park] and to identify any other areas of concern.” (Pl. Ex. N. at 1.)

Exley also reviewed the SDS “to determine if…Vandegrift properly and accurately represented

modifications to the property and the construction of the property.” (Id. at 2.) Exley issued a report

detailing his findings. (Id.)

Exley, “[b]ased upon a reasonable degree of engineering certainty[,]” rendered the following

opinions with respect to his inspection of the Pegher-Lane property:

1. The addition on the east side of the Pegher-Lane property was constructed during

Vandegrift’s ownership of the property;

2. “[N]o inspections were performed and no approvals were obtained” for the construction

performed on the Pegher-Lane property, and, therefore, Vandegrift “falsely and

fraudulently represented that he had obtained all necessary permits and had secured all

necessary inspections and approvals in the Seller Disclosure Statement[;]”

3. Vandegrift “misrepresented the execution of the construction of the addition on the east

(rear) side of the house, the modifications to the existing structure and his role in this

work and misrepresented the condition of the property in the Seller Disclosure

Statement[;]”

4. “[S]ignificant deficiencies exist in the design and construction of…[the Pegher-Lane

property]….”

(Pl. Ex. N at 12-14.) With respect to Vandegrift’s alleged misrepresentations about the construction

on the Pegher-Lane property, Exley opined:

- Vandegrift “gave the false impression that the work was supervised or otherwise

monitored by some qualified person with knowledge of building codes and experience in

design and construction” because although he “designed, scoped, and supervised the

construction of the addition…and the modifications to the existing structure[,]” he

indicated on the SDS that he did not possess expertise in “contracting, engineering,

architecture, environmental assessment, or other areas related to the construction and

conditions of the property and its improvements” (Pl. Ex. N at 12);

- it is “inconceivable” that Vandegrift did not know that the roof leaked because Exley

found “patching with at least 3 different types of roofing materials and a piece of added

flashing at the transition between the roof over the north (left) end of the house and the

north (left) slope of the gable roof over the addition” (id. at 13); and

- it is “inconceivable” that Vandegrift “was not aware of water intrusion and dampness in

the basement of the house” because Exley found “water staining and suspected mold

growth on the east (rear) foundation wall of the garage, water staining and efflorescence

on the inside face of the east (rear) masonry foundation wall in the furnace room and

extensive water staining and efflorescence on the inside facts of the east (rear) and south

(right masonry foundation walls [in] the basement storage room” (id.)

With respect to the “significant deficiencies in the design and construction” of the Pegher-

Lane property, Exley referred to issues with the: (1) “Foundation, Grading and Egress Pads[;]” (2)

“Wall Envelope[;]” (3) “Roof[;]” (4) “Roof Venting[;]” (5) “Structural[;]” and (6) “Interior[.]” (Id. at

14-22.) With respect to the roof, Exley wrote:

There was an awkward transition between the roof over the north (left) end of the house

and the north (left) slope of the gable roof over the addition. It was evident that this

area of the roof had leaked and had been patched repeatedly with at least 3 different

types of roofing materials and a piece of added flashing. (See Photographs No. 39. And

No. 40.)

(ECF No. 33-5 at 4.) According to Exley, the following repairs, among others, must be performed to

remedy the issues with the roof where the leak took place in winter 2015-2016:

The roof shingles must be removed and replaced with a roof covering approved

for low slope applications. Such low slope roof coverings include rubber

membrane roofing, TPO (Thermoplastic olefun) roofing, standing seam metal

roofing or rolled mineral roofing. I generally do not recommend rolled mineral

roofing because of its poor long term performance.

(Id. at 17.)

The Building Permit for the Pegher-Lane Property

On August 22, 2017, Vandegrift—in effort to resolve the citation with Franklin Park—applied

for a Zoning and Building Permit to open a retroactive building permit for work that had been

completed during his ownership of the Pegher-Lane property. (CCSMF (ECF No. 37) ¶ 27.) On or

around August 29, 2017, Franklin Park approved Vandegrift’s application, (id. ¶ 27), and issued a

Building Permit, (id. ¶ 28). On September 19, 2016, the citation was withdrawn. (Id.)

Hena’s Work on the Pegher-Lane Property

Hena did no work on the Pegher-Lane property to address the permit, inspection, and code

violations. (ECF No. 32-5 at 7.) Hena explained:

A fence was erected partially around the home, trees removed away from the

home and land sculpted around the home. The only alterations to the home have been

done at the request of Tim Phillips (Franklin Park borough Zoning Director) to cut out

1X1 foot drywall cutouts in certain areas of the property to validate building code

violations and other damage and recommend the changes needed to mitigate the

building violations by a license structural engineer (Capstone Structural Engineering

and Consulting). Tim Phillips and the structural engineer have verified they will attest

to all this under subpoena. The cutouts are purely cosmetic and remain to this day. The

Plaintiff has no intention of doing any work or changes to the structure of the house

until this legal matter is resolved as it will only complicate liability.

(Id.)

IV. Standard of Review

In relevant part, Rule 56 provides:

A party may move for summary judgment, identifying each claim or defense...on which

summary judgment is sought. The court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant is entitled

to judgment as a matter of law.

...

A party asserting that a fact cannot be or is genuinely disputed must support the

assertion by…citing to particular parts of materials in the record…or…showing that

the materials cited do not establish the absence or presence of a genuine dispute, or that

an adverse party cannot produce admissible evidence to support the fact.

FED. R. CIV. P. 56(a), (c). After discovery and upon a motion, Rule 56 requires the entry of summary

judgment against a party who “‘fails to make a showing sufficient to establish the existence of an

element essential to that party’s case and on which that party will bear the burden of proof at trial.’”

Marten v. Godwin, 499 F.3d 290, 295 (3d Cir. 2007) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

322–23 (1986)).

An issue of material fact is in genuine dispute if the evidence is such that a reasonable jury

could decide it in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). “A genuine issue is present when a reasonable trier of fact, viewing all of the record

evidence, could rationally find in favor of the non-moving party in light of his burden of proof.” Doe

v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (citing Anderson, 477 U.S. at 248;

Celotex Corp., 477 U.S. at 322–23)).

“[W]hen the moving party has carried its burden under Rule 56(c), its opponent must

do more than simply show that there is some metaphysical doubt as to the material

facts….Where the record taken as a whole could not lead a rational trier of fact to find

for the nonmoving party, there is no ‘genuine issue for trial.’”

Scott v. Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586–87 (1986)).

In deciding a Rule 56 summary judgment motion, the court must view the facts in the light

most favorable to the nonmoving party and draw all reasonable inferences and resolve all doubts in

its favor. Woodside v. Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001). The court

must not engage in credibility determinations at the summary judgment stage. Simpson v. Kay

Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998).

In cases involving pro se litigants, the court must liberally construe submissions. Hodson v.

Alpine Manor, Inc., 512 F.Supp.2d 373, 384 (W.D. Pa. 2007) (citing Haines v. Kerner, 404 U.S. 519

(1972)). Submissions are read to “raise the strongest arguments suggested therein.” Id. (citing Burgos

v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)). Yet, “a forgiving interpretation does not render immune

from dismissal or summary judgment claims that lack procedural or factual viability.” Id. In other

words, “‘the same summary judgment standard applies to pro se litigants.’” Dinnerstein v. Burlington

Cty. Coll., No. 113CV5598NLHKMW, 2017 WL 5593776, at *4 (D.N.J. Nov. 21, 2017), aff'd, 764

F. App'x 214 (3d Cir. 2019) (quoting Bank of Nova Scotia v. Ross, No. 2010–118, 2012 WL

4854776, at *3 (D.V.I. Oct. 12, 2012)). “‘[B]ald assertions’” unsubstantiated by record evidence will

not defeat a well-supported motion for summary judgment. Id. (quoting Rodriguez v. Hahn, 209 F.

Supp. 2d 344, 348 (S.D.N.Y. 2002)).

V. Discussion

Hena asserts three claims against defendant in this case: (A) count one—fraud under

Pennsylvania tort law; (B) count two—violations of the UTPCPL; and (C) count three—violations of

the RESDL. Hena’s claims are based upon allegations that Vandegrift made various fraudulent or

deceptive statements in the SDS upon which Hena relied to purchase the Pegher-Lane property. Hena

also alleges that he purchased the Pegher-Lane property in reliance upon Vandegrift’s fraudulent

concealment of the leaking roof at the Pegher-Lane property. Vandegrift argues that Hena cannot

prove any of his claims because the parol evidence rule bars the introduction of the SDS into

evidence at trial, and, under those circumstances, Hena cannot prove that Vandegrift made any

fraudulent or deceptive statements, which is a necessary element for each of his claims. Vandegrift

also argues that the Agreement’s release is a legal bar to Hena’s claims, Hena cannot prove that any

of Vandegrift’s statements in the SDS were false, and, even if Hena can establish a right to relief in

this case, his damages should be limited because he failed to mitigate his damages. (ECF No. 31.)

Hena asserts various arguments in response to Vandegrift’s motion. The court will consider each of

Hena’s claims and Vandegrift’s arguments in support of his motion for summary judgment to

determine whether Hena adduced evidence sufficient with respect to each claim to defeat

Vandegrift’s motion for summary judgment.

A. Fraud Claims Under Pennsylvania Tort Law

The court discerns there are two kinds of fraud claims asserted by Hena: (1) fraudulent

inducement; and (2) fraudulent concealment. According to Hena, Vandegrift commited fraudulent

inducement when he provided false answers in the SDS to induce Hena into entering into the

Agreement, and he committed fraudulent concealment when he fixed the leaking roof at the Pegher-

Lane property without telling Hena that the roof leaked in the first instance.3 Each of those claims will

be addressed below.

1. Fraudulent Inducement

In Pennsylvania, the elements of common-law fraudulent misrepresentation are:

“(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

3 If Hena intended to base his fraudulent concealment claims on other defects, the briefing

and evidence adduced was not sufficient for the court to discern what other defects were

concealed. See infra Section 2.

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.”

Gibbs v. Ernst, 538 Pa. 193, 647 A.2d 882, 889 (1994).

Norfolk S. Ry. Co. v. Pittsburgh & W. Virginia R.R., 870 F.3d 244, 255 (3d Cir. 2017). Pennsylvania

state courts have recognized:

“In 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. 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.”

Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539, 545 (Pa. Super. Ct. 2005) (quoting

Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa.Super. Ct. 2002)).

Pennsylvania law recognizes two kinds of fraudulent misrepresentation claims that may be

asserted when the plaintiff and defendant entered into a contract: (1) fraud in the execution, i.e.,

where the plaintiff alleges that a contract term was fraudulently added to or omitted from a contract;

and (2) fraud in the inducement, i.e., where the plaintiff alleges the defendant made fraudulent

representations to induce the plaintiff into entering into the contract. Toy v. Metropolitan Life Ins.

Co.,928 A.2d 186, 204 (Pa. 2007) (citing Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425,

437 n.26 (Pa. 2004)). Here, Hena asserts a claim for fraud in the inducement, alleging that Vandegrift

made fraudulent statements in the SDS to induce Hena to enter into the Agreement. Vandegrift

argues, however, that Hena cannot prove his fraud in the inducement claims because the parol

evidence rule bars the introduction of the SDS at trial, and, under those circumstances, Hena could

not prove that Vandegrift made any fraudulent statements to induce him into entering into the

Agreement. (ECF No. 31 at 3-12.) Hena argues in response that the parol evidence rule does not

apply to his claims, which “sound in trespass and not in assumpsit.” (ECF No. 40 at 6.) The

applicable law and the parties’ arguments will be addressed below.

i. The Parol Evidence Rule

a. Applicable Law

The Pennsylvania Supreme Court has explained the parol evidence rule as follows:

“Where the parties, without any fraud or mistake, have deliberately put their

engagements in writing, the law declares the writing to be not only the best, but the

only, evidence of their agreement. All preliminary negotiations, conversations and

verbal agreements are merged in and superseded by the subsequent written contract ...

and unless fraud, accident or mistake be averred, the writing constitutes the agreement

between the parties, and its terms and agreements cannot be added to nor subtracted

from by parol evidence.”

Yocca, 854 A.2d at 497 (quoting Gianni v. Russell & Co., 126 A. 791, 792 (Pa. 1924)). Pennsylvania

law with respect to the parole evidence rule, however, “is not a model of clarity….” Sunquest Info.

Sys. v. Dean Witter Reynolds, 40 F.Supp.2d 644, 653 (W.D. Pa. 1999).4 Courts interpreting

Pennsylvania law have explained that the parol evidence rule applies when the following two

conditions are satisfied: “‘(1)…the written agreement “contains terms which directly deal with the

subject matter of the alleged oral [or written] representation; and (2) [the written agreement] represents

the entire contract between the parties, particularly where the written agreement also contains an

integration clause.’” Claude Worthington Benedum Found. v. Bank of New York Mellon Corp., Civ.

A. No. 19-132, 2019 WL 6330168, at *6 (W.D. Pa. Nov. 26, 2019) (quoting Palermo Gelato, LLC v.

4 In Betz Laboratories, Inc. v. Hines, 647 F.2d 402 (3d Cir. 1981), the Third Circuit

Court of Appeals attempted to predict whether the Pennsylvania Supreme Court would

recognize an exception to the parol evidence rule for claims of fraudulent inducement.

The court in Betz explained that “Pennsylvania decisions on the parol evidence rule are

neither clear nor consistent.” Id. at 405. It further explained that “[t]he recital of the

meanderings of Pennsylvania law, while regrettably lengthy, nevertheless demonstrates

why the district judge here found the parol evidence rule in Pennsylvania to be in an

uncertain state.” Id. at 406. The court of appeals concluded that if faced with the issue,

the Pennsylvania Supreme Court “would hold that evidence of fraud in the inducement is

outside the parol evidence rule, and consequently admissible.” Id. at 408. That prediction,

however, was later proven incorrect in HCB Contractors v. Liberty Place Hotel Assocs.,

652 A.2d 1278, 1280 (Pa. 1995), in which the Pennsylvania Supreme Court applied the

parol evidence rule to bar evidence of alleged false representations made to induce a

party to enter into a contract.

Pino Gelato, Inc., Civ. A. No. 2:12-CV-00931, 2013 WL 3147312, at *4 (W.D. Pa. June 19, 2013));

Yocca, 854 A.2d at 436–37.5 With respect to the second condition, the Pennsylvania Supreme Court

has explained:

To determine whether or not a writing is the parties’ entire contract, the writing must

be looked at and “if it appears to be a contract complete within itself, couched in such

terms as import a complete legal obligation without any uncertainty as to the object or

extent of the [parties'] engagement, it is conclusively presumed that [the writing

represents] the whole engagement of the parties....” Id.

Yocca, 854 A.2d at 436. “An integration clause which states that a writing is meant to represent the

parties’ entire agreement is…a clear sign that the writing is meant to be just that and thereby expresses

all of the parties' negotiations, conversations, and agreements made prior to its execution.” Id.

The Pennsylvania Supreme Court recognizes a “so-called exception” to the parol evidence

rule “when a party avers that the contract is ambiguous or that a term was omitted from the contract

because of fraud, accident, or mistake[,]” i.e., for claims of fraud in the execution. Toy, 928 A.2d at

204. The parol evidence rule generally applies, however, to claims based upon fraud in the

inducement. Id. In other words, evidence outside the four corners of a contract may not be introduced

into evidence when a contract covers the subject matter of the evidence, e.g., representations, even

though the plaintiff alleges that “‘an opposing party made false representations that induced the

complaining party to agree to the contract.’” Id. at 204-05 (quoting Yocca, 854 A.2d at 437 n.26).

Courts have explained that evidence of an oral or written representation made prior to the entry into a

contract that is inconsistent with the terms of a contract is not admissible to prove a fraud in the

5 The Pennsylvania Supreme Court in Yocca explained:

Once a writing is determined to be the parties' entire contract, the parol evidence

rule applies and evidence of any previous oral or written negotiations or agreements

involving the same subject matter as the contract is almost always inadmissible to

explain or vary the terms of the contract.

Yocca, 854 A.2d at 436–37.

inducement claim because “a party cannot justifiably rely upon prior oral representations yet sign a

contract denying the existence of those representations.” Blumenstock, 811 A.2d at 1036; Claude

Worthington, 2019 WL 6330168, at *5 (citing Techinomics, Inc. v. Forest Power & Energy Holding,

Inc., No. 16-1859, 2017 WL 2536969, at *3 (W.D. Pa. May 11, 2017)).

Some courts interpreting Pennsylvania law have recognized an “exception” to the general

rule that the parole evidence rule applies to claims fraud in the inducement in “the so-called ‘real

estate inspection cases,’ i.e., LeDonne v. Kessler, 256 Pa.Super. 280, 389 A.2d 1123 (1978), and its

progeny.”6 Id.; Scott v. LTS Builders LLC, No. 1:10-CV-0581, 2011 WL 6294490, at *7 (M.D. Pa.

Dec. 15, 2011); Lutzky v. Petcove, No. CIV A. 06-2229, 2006 WL 2456466, at *3 (E.D. Pa. Aug. 21,

2006). Some courts use language which appears to make the “exception” applicable to all claims of

fraudulent inducement in “real estate inspection cases.” See, e.g., Lutzky v. Petcove, No. CIV A. 06-

2229, 2006 WL 2456466, at *3 (E.D. Pa. Aug. 21, 2006); Blumenstock, 811 A.2d at 1036; Vaughn v.

Drab, Civ. A. No. AR04-2321, 2005 WL 3675350, at *554-55 (Pa. Ct. Com. Pl. May 25, 2005). In

HCB Contractors v. Liberty Place Hotel Associates, 652 A.2d 1278, 1280 (Pa. 1995), however, the

Supreme Court of Pennsylvania (albeit in dicta) noted that LeDonne dealt with “an exception to the

strict application of the parol evidence rule in sales and leases of real property where oral

representations regarding a lack of physical defects in the property were made and the purchaser or

lessee was not able to discover, through visual inspection, that the representations were false.”

Following HCB, some federal courts interpreting LeDonne determined it set forth a narrow

exception applying only in the circumstances described in HCB. See, e.g., Waldschmidt v. NVR,

6 Here, Vandegrift argues: “The LeDonne [sic] balancing test is generally regarded as the

accepted test for a court to decide if they should allow an exception to the parol evidence rule in

residential real estate sales involving an integration clause and claim of fraud in the inducement

by the buyer.” (ECF No. 31 at 4.) According to Vandegrift, application of the LeDonne

balancing test in this case shows that Hena could not justifiably rely upon any of the

representations in the SDS because of the broad integration clause set forth in the Agreement.

(Id. at 4-12.)

Inc., No. CV 18-1372, 2018 WL 6433910, at *8 n.6 (W.D. Pa. Dec. 7, 2018); AAMCO

Transmissions, Inc. v. Wirth, No. CIV.A. 11-4250, 2011 WL 6088671, at *6 (E.D. Pa. Dec. 7, 2011);

Sunquest, 40 F.Supp.2d at 655 (explaining that some courts apply LeDonne “in disputed residential

real estate sales, where defects were hidden and not readily discoverable by the buyers inspection”)

(collecting decisions).

A close reading of LeDonne, however, shows that the Pennsylvania Superior Court did not

establish an “exception”7 to the parol evidence rule for claims of fraud in the inducement applicable

only in real estate inspection cases. The court’s analysis focused upon whether the contract at issue in

that case was fully integrated with respect to the fraudulent representations alleged by the plaintiff. In

other words, the court analyzed whether the written agreement “contain[ed] terms which directly

deal[t] with the subject matter of the alleged oral representation[s].” Palermo Gelato, 2013 WL

3147312, at *4. As discussed below, the court in LeDonne concluded that the subject matter of the

pertinent clause in the contract was limited to the physical appearance of the property.

In LeDonne, the plaintiffs alleged that they purchased a home from the defendants based

upon the defendant’s fraudulent representations that the house “had no water or sewer problems.”

LeDonne, 389 A.2d at 1125. The defendants allegedly made the following representations to the

plaintiffs: “(a) the drainage problem in the septic system had been repaired, (b) the sundeck did not

leak water, and (c) the cellar did not leak water….” Id. Prior to executing an agreement of sale for the

property, one of the plaintiffs and a carpenter inspected the property and noticed “black spots

underneath the sundeck and on the plywood paneling in the garage directly beneath the sundeck….”

Id. According to the carpenter, “these spots…definitely suggested a water leakage problem.” Id. The

other plaintiff also testified that “an inspection of the cellar, which immediately adjoined the garage,

revealed damp conditions which again suggested a water leakage problem.” Id. When one of the

7 The word “exception” does not appear in the LeDonne opinion.

plaintiffs questioned one of the defendants about the black spots, the defendant responded that

“although there had been a leak around the chimney, the problem had been corrected.” LeDonne,

389A.2d at 1125.

The plaintiff also inspected the property outside the home and asked about the property’s

septic system. Id. The defendant “assured….[the plaintiff] that the septic system functioned properly,

despite a small problem during the previous summer.” Id. The defendant showed the plaintiff a small

plastic pipe protruding from the ground that was installed to correct the septic problem. Id. The

plaintiffs alleged that in reliance on the defendants’ representations that the property did not have

water-leakage or septic-system problems, they executed an agreement of sale with the defendant.

LeDonne, 89 A.2d at 1125. Paragraph six of the agreement of sale provided, in pertinent part: “The

parties have full knowledge of the physical appearance of the land and buildings and of the value

thereof and there are no verbal representations as to character or quality.’” Id. at 1126. Shortly after

the plaintiffs moved into the home, “the septic system backed up, and the sundeck and cellar started

to leak water.” Id. at 1125. As a result, the plaintiffs allegedly suffered damage in excess of

$10,000.00. Id.

The plaintiffs sued the defendants in trespass. LeDonne, 389 A.2d at 1125. The trial court

held that the parol evidence rule prohibited the plaintiffs’ introduction of “oral testimony in

contradiction of the statement in paragraph number six [of the agreement of sale] that ‘there are no

verbal representations as to character or quality.” Id. at 1126. Under those circumstances, the trial

court granted summary judgment in favor of defendants because the plaintiffs did not adduce any

other evidence to support their claim. Id. The plaintiffs appealed the decision to the Pennsylvania

Superior Court. Id. The Pennsylvania Superior Court explained the parol evidence rule as follows:

Where the alleged prior or contemporaneous oral representations or agreements

concern a subject which is specifically dealt with in the written contract, and the written

contract covers or purports to cover the entire agreement of the parties,…the law is

now clearly and well settled that in the absence of fraud, accident or mistake the alleged

oral representations or agreements are merged in or superseded by the subsequent

written contract, and parol evidence to vary, modify or supersede the written contract

is inadmissible in evidence.

Id. at 1126-27. While the court in LeDonne acknowledged that courts in Pennsylvania “applied the

parol evidence rule in a wide variety of contexts[,]” it focused its discussion of the history of the parol

evidence rule on “cases involving agreements of sale and similar property transactions…[to] expedite

analysis of the rule’s application” in that case. Id. (emphasis added). The court did not, however,

hold that its analysis in the case was specific to only real-estate transaction cases.

The court discussed three decisions from Pennsylvania appellate courts involving the

application of the parol evidence rule: Bardwell v. The Willis Co., 100 A.2d 102 (Pa. 1953); Berger v.

Pittsburgh Auto Equipment Co., 127 A.2d 334 (Pa. 1956); and National Building Leasing, Inc. v.

Byler, 381 A.2d 963 (Pa. Super. Ct. 1977). In Bardwell, the plaintiffs sued the defendants in trespass

based upon the defendants’ oral representations that the property the plaintiffs leased from the

defendants would be “fit for a bottling business.” LeDonne, 389 A.2d at 1127 (citing Bardwell, 100

A.2d at 505). The lease between the parties provided that the plaintiffs “had examined the premises

and found them to be in sound condition, that they had not received any warranty as to the condition

or repair of the premises for the intended use, and that the lease contained the entire agreement between

the parties.” Id. (citing Bardwell, 100 A.2d at 506). The premises, however, were not proper for the

plaintiffs’ bottling business. Id. (citing Bardwell, 100 A.2d at 505). On appeal, the Pennsylvania

Supreme Court held that evidence of the alleged oral representations was inadmissible under the parol

evidence rule because the representations “concerned matters fully and specifically covered in the

integration clause of [the parties’] written agreement.” Id. (citing Bardwell, 100 A.2d at 506-07). The

Pennsylvania Supreme Court explained:

There is not the slightest doubt that if plaintiffs had merely averred the falsity of the

alleged oral representations, parol evidence thereof would have been inadmissible.

Does the fact that plaintiffs furthere averred that these oral representations were

fraudulently made without averring that they were fraudulently or by accident or

mistake omitted from the subsequent complete written contract suffice to make the

testimony admissible? The answer to this question is ‘no’; if it were otherwise the parol

evidence rule would become a mockery, because all a party to the written contract

would have to do to avoid, modify or nullify it would be to aver (and prove) that the

false representations were fraudulently made.

Bardwell, 100 A.2d at 506.

The court in LeDonne analyzed Berger, which it noted presented “a factual pattern analogous

to Bardwell, but sufficiently distinguishable to permit a different result.” LeDonne, 389 A.2d at 1127-

28. In Berger, the defendant leased property from the plaintiff. Id. (citing Bardwell, 127 A.2d at 335).

The plaintiff knew the defendant leased the property to store automobile parts, “which weighed more

than 300 pounds per square foot of flooring.” LeDonne, 389 A.2d at 1128 (citing Berger, 127 A.2d at

335). The plaintiff assured the defendant that “the flooring had been recently strengthened and would

support the…[defendant’s] goods.” Id. The parties executed a lease and a contemporaneous written

agreement that provided “‘[t]he Tenant has inspected the premises and accepts the property in its

present condition.’” Id. (quoting Berger, 127 A.2d at 336). Once the defendant began leasing the

property, however, he learned that the floor was “incapable of withstanding a weight of 125 pounds

per square foot[,]” and he stopped paying rent. Id. (citing Berger, 127 A.2d at 336). The plaintiff sued

the defendant. Id. (citing Berger, 127A.2d at 335). The Supreme Court of Pennsylvania held the parol

evidence rule was inapplicable to the plaintiff’s claim. Id. (citing Berger, 127A.2d at 335). The court

in LeDonne explained the Pennsylvania Supreme Court’s reasoning as follows:

[T]he Supreme Court ruled that the collateral agreement concerning the inspection of

premises only bound the lessee as to any reasonably ascertainable conditions. Because

expert tests rather than visual inspection were necessary to determine the strength of

the flooring, the Court found the contractual integration clause inapplicable and,

therefore, the parol evidence rule inoperative.

LeDonne, 389 A.2d at 1128 (citing Berger, 127 A.2d at 335-36) (emphasis added).

The court in LeDonne discussed Byler, which it described as “the most recent link in the chain

of cases which commences with Bardwell.” LeDonne, 389 A.2d at 1128. In Byler, the defendants

entered into an agreement to sell property to the plaintiff “to construct a trucking terminal….” Id.

(citing Byler, 381 A.2d at 965). The defendants prior to closing, however, “allegedly demolished a

number of buildings and deposited the resulting debris and other waste materials in a large hole located

on the realty…[and] filled the hole with soil and covered it with vegetation.” Id. (citing Byler, 381

A.2d at 965). The defendants concealed the existence of the hole and told the plaintiff that it removed

the debris from the property. Id. (citing Byler, 381 A.2d at 965). The plaintiff and defendants entered

into an agreement of sale for the property, which provided, in pertinent part, that the plaintiff inspected

the property and agreed to purchase the property based upon the inspection and not based upon any

representations made by the defendants. Id. (citing Byler, 381 A.2d at 965). The agreement of sale also

provided it was “the complete understanding of the parties and that no other oral representations had

been made concerning the sale.” LeDonne, 389 A.2d at 1128 (citing Byler, 381 A.2d at 965). The

integration clause, however, applied specifically to the physical appearance of the property. After

closing, the plaintiff discovered the hole and sued the defendants for the costs of removing the debris

from the property. Id. (citing Byler, 381 A.2d at 965). The Pennsylvania Superior Court held that the

parol evidence rule did not apply to bar admission of the defendants’ representations. Id. The court in

LeDonne explained the rationale in Byler as follows:

In an attempt to reconcile Bardwell and Berger, we observed that as a general rule, an

allegation that fraud or misrepresentation induced the contract would enable a party to

escape the confines of the parol evidence rule. See Highmont, Supra; Berger, supra. If

a party failed to make such an allegation, but only averred that the contract did not

contain certain additional oral terms, then an allegation that the terms had been

fraudulently omitted from the contract would be necessary. See Bardwell, supra.

Because the buyer in Byler alleged that his sellers' oral misrepresentation induced it to

enter into the contract, we found the parol evidence rule inoperative.[8]

LeDonne, 389 A.2d at 1128-29.

Turning to the case before it, the Pennsylvania Superior Court found the trial court too broadly

interpreted the integration clause of the parties’ agreement. Id. at 1129. As discussed above, paragraph

8 As more fully discussed later, this rationale did not specifically refer to the need to

determine whether the contract contained terms about the subject matter of the representations.

According to the court in LeDonne, the contract terms in Byler only applied to representations

about the physical appearance of the property and not to concealed defects.

six of the parties’ agreement of sale provided: “The parties have full knowledge of the physical

appearance of the land and buildings and of the value thereof and there are no verbal representations

as to character or quality.” Id. (emphasis in original). The trial court interpreted the underlined portion

of paragraph six “as a complete integration clause which barred testimony of All [sic] oral

representations concerning the instant land transaction.” Id. The Superior Court disagreed. It explained

that the trial court’s

interpretation cuts too broadly and ignores the interrelationship between the first half

of paragraph number six and the subsequent underlined segment….Instead, reading the

clause as a whole, we believe that paragraph number six only denies the existence of

verbal representations as to the character or quality of land and building conditions

reasonably apparent from an inspection of the premises.

Id.

The court held that in light of paragraph six of the agreement of sale, the parol evidence rule

applied to bar introduction of representations made by the defendant with respect to the water leakage

occurring in and around the sundeck because the plaintiffs’ visual inspection of the sundeck and related

areas “strongly suggested the existence of water leakage problems.” Id. at 1130. The parol evidence

rule did not apply to bar admission of representations made with respect to the septic system, however,

“[b]ecause the septic system was underground,” and, therefore, the plaintiffs “could not have possessed

full knowledge of its physical appearance and adequacy and could not have readily ascertained whether

a drainage problem existed.” Id. at 1129. In other words, “[b]ecause…[plaintiffs] could not discern

through visual inspection alone the existence of the septic system problem of which they now

complain, the wording of paragraph six does not bar the admission of evidence of appellees’ alleged

misrepresentations concerning septic system problems.” Id. (emphasis added).

The plaintiffs in LeDonne argued that because they were asserting a fraud in the inducement

claim, the evidence of the defendants’ representation was not barred by the parol evidence rule.

LeDonne, 389 A.2d at 1130. The court in LeDonne acknowledged that in Byler the Superior Court

explained that “evidence that one of the parties was induced to enter the contract through fraud or

misrepresentation is not barred by the parol evidence rule.” Id. (citing Byler, 381 A.2d at 965). The

court in LeDonne explained, however, that pronouncement in Byler “made sense” based upon the facts

of that case. Id. The integration clause in Byler applied specifically to the physical appearance of the

property. The court in LeDonne, acknowledging that the facts of its case were “materially different”

from the facts in Byler, explained:

The removal of the debris from the premises constituted a basic precondition to the

agreement of sale. The buyer's inspection of the physical premises disclosed no reason

to suspect that the sellers had not removed the debris; indeed, the inspection seemingly

confirmed the veracity of the sellers' representations. Therefore, at the time the buyer

executed the agreement of sale, it reasonably assumed that the precondition had been

performed and that contractual protection on this matter would be superfluous. To

invoke the parol evidence rule to cover a situation which the buyer could not have

envisioned at the time of contracting would be manifestly unfair and would

affirmatively aid the perpetration of fraud against an unsuspecting buyer.

Id. at 1130 (emphasis in original). The court in LeDonne explained that the parol evidence must apply

“when a party knows about the existence of a substantial problem…yet contractually stipulates that he

has received no promises about these problems.” Id. The court instructed:

[W]e should balance the extent of the party's knowledge of objectionable conditions

derived from a reasonable inspection against the extent of the coverage of the contract's

integration clause in order to determine whether that party could justifiably rely upon

oral representations without insisting upon further contractual protection or the deletion

of an overly broad integration clause.

LeDonne, 389 A.2d at 1130. The court applied the foregoing “balancing test” to the facts of the case

before it and held:

[Plaintiffs] actually detected the existence of water problems in the sundeck and cellar,

but nevertheless signed a contract stipulating that they received no representations

concerning these ostensible defects. Consequently, appellants have failed our test.

Id. Most importantly, however, the court did not apply the “balancing test” to the septic system issues.

The court explained that the septic system issues, which were not discoverable by visual observation,

were not covered by the integration clause, which applied only to the physical appearance of the

property. Id. at 1129.

Based upon the foregoing, the court in LeDonne did not create an “exception” to the parol

evidence rule for all claims of fraudulent inducement in “real estate inspection cases;” rather, the court

rejected that approach. The import of LeDonne, which is applicable to this case, is the court’s emphasis

that to apply the parol evidence rule, a court must determine in the first instance the scope of the

integration clause. If an integration clause is limited to representations about the physical appearance

of the property based upon a visual inspection, which was the case in Berger, Byler, and LeDonne, the

court must balance the integration clause against “the party’s knowledge of objectionable conditions

derived from a reasonable inspection” of the property. LeDonne, 389 A.2d at 1130. If the alleged defect

is discoverable by a reasonable visual inspection of the property, that kind of limited integration clause

would bar the admission of parol evidence concerning the alleged defect. If the alleged defect is not

discoverable by a reasonable visual inspection of the property, the parol evidence rule would not apply

in the first instance because that limited integration clause would not include extraneous

representations about the alleged defect. See, e.g., Berger, 127 A.2d at 335-36 (holding the parol

evidence rule did not apply to bar admission of extraneous agreements about the strength of the flooring

because the parties’ agreement was limited to conditions reasonably ascertainable; the defects in issue

required expert tests rather than visual inspection to test the strength of the flooring).

On the other hand, if the integration clause broadly applies to all conditions of a property,

whether detectable by visual inspection or a more intrusive inspection, the “balancing test” does not

apply and the parol evidence rule may bar admission of parol evidence. See, e.g., Bardwell, 100 A.2d

at 506 (holding the parol evidence rule applied to bar admission of extraneous agreements about

whether the property was fit for bottling because the parties agreed to a broad integration clause

covering all conditions of the property). The teachings of LeDonne, therefore, are not counter to the

clear pronouncements of the Pennsylvania Supreme Court that the parol evidence rule does not apply

to claims of fraudulent inducement in the context of a fully integrated contract. Toy, 928 A.2d at 204-

05 (citing Yocca, 854 A.2d 437 n.26).

Here, Hena asserts a fraudulent inducement claim against Vandegrift. He alleges that

Vandegrift made materially false representations to him to induce him into entering into the Agreement

to purchase the Pegher-Lane property. Hena relies upon the SDS to prove his fraudulent inducement

claims. The court must, therefore, determine whether the parol evidence rule will apply to bar the

admission of the SDS into evidence at trial. In accordance with Pennsylvania law, this court will

determine if the parol evidence rule applies in this case to bar admission of the SDS by considering

whether: “‘(1)…the written agreement “contains terms which directly deal with the subject matter of

the alleged oral [or written] representation; and (2) [the written agreement] represents the entire

contract between the parties, particularly where the written agreement also contains an integration

clause.’” Claude Worthington, 2019 WL 6330168, at *6 (quoting Palermo Gelato, 2013 WL 3147312,

at *4).

b. Analysis

The court must first consider whether the Agreement contains terms that directly address the

defects alleged by Hena. Hena’s claims for fraudulent inducement are based upon the following

allegedly false representations made by Vandegrift in the SDS:

1. a Certificate of Occupancy was not required by the municipality (Def. Ex. F (ECF

No. 32-7) at 1 ¶ 3(c));

2. the roof never leaked during Vandegrift’s ownership (id. ¶ 4(c));

3. Vandegrift did not know of any current or past problems with the roof, attic,

gutters, or downspouts (id. ¶ 4(d));

4. Vandegrift was not aware of any water leakage, accumulation, or dampness

within the basement, garage or crawl space (id. ¶ 5(f));

5. Vandegrift obtained all necessary permits and approvals and the work was done

in compliance with building codes (id. ¶ 8(b));

6. Vandegrift was not aware of any violations of federal, state, or local laws or

regulations relating to the property (id. ¶ 20(B)); and

7. Vandegrift was not aware of any material defects to the property, dwelling, or

fixtures which were not disclosed elsewhere on the SDS (id. ¶ 20(F)).

Exley in his report opined that based upon Vandegrift’s failure to obtain the necessary

approvals and permits for the construction that took place at the Pegher-Lane property during his

ownership, “significant deficiencies exist in the design and construction of…[the Pegher-Lane

property]….” (Pl. Ex. N at 12-14.) Exley referred to issues with the: (1) “Foundation, Grading and

Egress Pads[;]” (2) “Wall Envelope[;]” (3) “Roof[;]” (4) “Roof Venting[;]” (5) “Structural[;]” and (6)

“Interior[.]” (Id. at 14-22.)

Paragraph 25 of the Agreement provided, in pertinent part:

(B) Unless otherwise stated in this Agreement Buyer has inspected the Property

(including fixtures and any personal property specifically listed herein) before signing

this Agreement or has waived the right to do so, and agrees to purchase the

Property IN ITS PRESENT CONDITION, subject to inspection contingencies

elected in this Agreement. Buyer acknowledges that Brokers, their licensees,

employees, officers or partners have not made an independent examination or

determination of the structural soundness of the Property, the age or condition of the

components, environmental conditions, the permitted uses, nor of condition existing in

the locale where the Property is situated; not have they made a mechanical inspection

of any of the systems contained therein.