*2 WICKERSHAM, Before OLSZEWSKI, HOFFMAN, and JJ.
HOFFMAN, Judge:
Appellants contend that the lower court erroneously granted appellees’ motion for compulsory nonsuit at the close of appellants’ agree and, case. We re- accordingly, verse thе order below. 6, 1978,
On September John and appellants, Patricia Long, entered into a sales agreement appellees, Garry and Nancy Long, for the purchase appellees’ residence located at 1100 Maple East in Street Palmyra. Appellee (hereinafter Real Estate Company “Brown- stone”) carried listing of the property. Settlement on the property 16, 1978, occurred on November and aрpellants took possession the same 24, 1979, On day. January follow- ing rain, a heavy flooded, basement of the house was causing damage to articles stored therein. Appellants thereafter discovered that the basement had been flooded on three prior occasions to the time they purchased the property. Appellants then filed against suit appellees Gar- ry and Nancy Long, appellee Brownstоne, and appellees Carl Adams and Brownstone), Jean Hoffman (agents for alleging negligence in failing to inform them problem, implied disclosure, breach of an duty of and willful the condition of
misrepresentation July On 1, 1980, complaint filed a and a com- equity trespass assumpsit against and On plaint appellees. 10, 1981, terminating September stipulated 1981, equity September their action with On prejudice. 17, 1981, September appel- trial commenced. On after jury court presented liability, lants their case as to the lower Appel- motion for nonsuit. granted appellees’ compulsory lants then filed a motion for removal of the en banc nonsuit, court denied which the lower Order appeal filed November 1982. This followed. Opinion nonsuit should be entered a clear “[A] the refusal to take off a non- appeal from suit, plaintiff given must be the benefit of all favorable every arising reasonable inference of fact testimony and all conflicts thereon must be resolved therefrom *3 Martino v. Great Atlantic & Pacific of plaintiff.” favor (1965). Accord, Co., 419 Pa. 229, 231, 608, Tea 213 A.2d 609 Easton, 520, 523, City Norton Pa.Superior 249 Ct. 378 417, (1977). a nonsuit is A.2d 418 “When entered, lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable dia Purcell, Scott v. 109, 112-13, 490 Pa. 415 greement.” 56, nonsuit en may A.2d be “[A] any tered the cannot recover under plаintiff when view evidence, against entry doubt resolved its every with favorably plaintiff.” and all inferences drawn most to the Id.
Here, evidence, in the most appellants’ viewed favorable facts: and light, following Appellees, Garry reveals the in question the home in 1970 and Nancy Long, purchased 1972, 1974, 1976, its first residents. In while were up the was flooded by appellees Long, owned ceiling, height seven-to-eight the feet. approximately In estate appellees Long signed March of real for the sale of listing agreement appellee In the “For property. August, the noticed in front of the residence and contacted sign Sale” Brown- stone. Prior to the executing agreement Septem- sales ber, 1978, appellants were the property, including shown basement, by appellee inspecting Adams. While property, appellants asked Adams if because, had, history damаge if it they were interested in purchasing replied Adams negative. Bowman, Richard appellants’ prospective mort- time, gagee inspected at the also compa- basement, ny appellee Hоffman. In the Bowman noticed a six-inch water line around the foundation on the cellar wall and asked Hoffman about it. Hoffman him informed that there had problem been water but did not mention anything Bowman, the previous floodings. about in subse- quently approving appellants’ mortgage, believed that the water problem had since Appellants been alleviated. com- pleted the purchase and moved into the residence in Novеm- 24, 1979, ber 1978. On January rain heavy caused water accumulate the backyard of the residence. The below- ground basement door quickly collapsed under the pressure basement, water flooded into the rising to the level of ceiling rafters, a height feet, of approximately eight damaging the Thereafter, basement’s contents.
first learned previous about the three floodings.
The granted lower court the nonsuit primarily on the basis of Bowman’s testimony regarding the water line in basemеnt, reasoning that appellants, upon reasonable inspection of the premises, should have noticed the water line and recognized that the house had problem. *4 Therefore, the court concludеd appellees that had no disclose such a patent defect to appellants. First,
We disagree. there is no evidence ap that pellants ever and, noticed water line if even they had or it, should hаve noticed we believe that a six-inch water line
is not such an obvious defect as to constitute notice of eight-foot high floodings. A water line around the bottom wall the basement is more indicative of seepаge water dampness from its foundation than of complete inundation of ground basement from Moreover, level. appellants
had falsely by agent been informed sales that the house rea- experiencеd flooding appellants never had no son to him. Additionally, although disbelieve there was basement, sump pump believed reasonably that such a used in the automatic pump was event the circumstances, washer overflowed. Under these we find presented that sufficient support evidence appellees prior their claim that to disclose the and, therefore, floodings hold that the nonsuit was unwar- ranted.
Accordingly, denying we rеverse the lower court’s order appellants’ motion for removal of the nonsuit and remand for a trial.* new and remanded. is relinquished.
Reversed Jurisdiction WICKERSHAM, J., files a dissenting opinion. WICKERSHAM, Judge, dissenting: I respectfully dissent.
I affirm the County would decision of the Lebanon Court Judge en President Thomas (per Judge banc G. Gates Walter) John petition where remove Judge nonsuit was denied. As Walter out in his pointed opinion dated 1982: November allegations by testimony Plaintiffs’ аre refuted that As put was forward themselves. a basis claims, for a of their majority they assert nothing flooding problem Palmy- about the knew they ra Plaintiffs claim never observed in- flooding problems indication of nor did ever anyone However, form problem. plaintiffs’ them of the water witness, Bowman, own Mr. testified that there was a line along water wall basement which was (N.T. 252) The mark clearly visible. was concealed in any way easily recognizablе what it was—a water mark. disposition appellants’
* Becauseof our of this we need not address remain ing contentions. *5 imperfection When an in a property open is and obvious is patent patent it considered a And defect. defect imposes no or duty the owner to warn A declare. flooding problem may always patent be considered a defect on the depending surrounding circumstances. However, in the instаnt case there is no question that the flooding problem was open and obvious. By making a house, inspection reasonable including the base- ment, readily it was discernable that the property problem flooding аlong at least once. For there wall, six inches above the floor was the water look, all mark for who would to A person see. reasonable it seeking recognize “signature” would of the basement toup that lеvel.
The presence of water marks in a basement as evidence defect the home from some cause can be distin- from guished a situation where there are mud channels made by present termites the rafters a basement. The latter not be may recognizable to a reasonably pru- person; Quashnock dent the former are. Frost, See [299] Pa.Super. [9], Thus, because imperfection problem so obvious —the —was is pаtent it defect.
A seller’s disclose a in defect arises when: (a)
“... the vendee does not know or have reason to involved, know of the condition or the risk “(b) the vendor or reason to knows has know the condition, and realizes should realize the risk in- volved, and has reason to believe that vendee will not discover the condition or realize the risk.” In Restatement, Section 353 2d Torts. the present case the condition such Long had reason to know the defect since was so it conspicuous. Therefore, vendors, neither the defendants Long, agents nor their disclose the condi- tion Long. *6 disclose, no claim duty plaintiffs
Even if there was made the of the on condition misrepresentations were asked defendant Ad they Plaintiffs contеnd damage and if of water property history ams the previous he the had no responded property that that testimony flooding An examination the problems. not Mr. Adams did fact it is clear whether shows that flooding. had property problems that no state Mr. did However, assuming say that Adams arguendo damage property, with the history no of water there was on the as a property he since was aware statement and of Agnes2, that result Hurriсane to remove the grounds not be sufficient itself would expected to be an agent is not nonsuit. A real estate property. Henry of the expert physical quality on the D The [Babecki], 65 & C2d 15 Babekci [Pa.] obvious, therе wall was was mark on basement of the part backyard in the sump pump a undisputed in. These facts would been filled recently a on notice that there was water person a reasonable put past. It sometime problem with by misled contended that were validly cannot be right The was by made Mr. Adams. evidence statements plaintiffs’ eyes. before
[*] [*] [*] [*] [*] Sic in the testimony presented There no conflict inferences in making all reasonаble instant plaintiffs failed to apparent it is that favor cause of action. Plain- to sustain a establish elements mark that was water on testified there mortgagee tiffs’ testimony no that There was the wall in the basement. indiсated an of the mark presence refuted the plaintiffs Long. Be- the mark from attempt to conceal to see and anyone mark for cause the was obvious the mark would have seeing person upon rеasonable flooding problem, indication of perceived it to be an had no to disclose condition defendants An concealment of condi- active plaintiffs. condition, tion or a disclose a the еlements neces- sary to negligence, fraud, establish breach of contract or breach of fiduciary duty part defendants, were plaintiffs. established
The nonsuit was properly granted. The motion removal of compulsory nonsuit will be denied. yielded meteorologists year Which what call “100 rain”. op. Lower ct. at 4-8. *7 Pennsylvania
COMMONWEALTH BEBOUT, Appellant. Robert Superior of Pennsylvania. Court March 1984.
Submitted Filed Nov. 1984.