MEMORANDUM
Plaintiffs Gregory J. and Luba Star (collectively, the “Stars”) bring suit against defendants Lawrence J. and Phyllis B. Rosenthal
The Stars allege that this home proved subject to water infiltration. They further claim that though the Rosenthals knew the house had this defect, the Rosenthals nonetheless made false representations to the Stars in order to induce them to buy the house and later to refrain from bringing suit.
Specifically, the Stars allege six claims
The Rosenthals have filed a motion to dismiss all claims in the complaint, to which the Stars have responded. For the reasons we discuss below, we will grant the Rosenthals’ motion to dismiss in part, as to Count I of the complaint, and will direct them to file an answer to the remaining allegations of the complaint.
1. Factual Background
In ruling on a motion to dismiss for failure to state a claim pursuant to Fed. R.Civ.P. 12(b)(6), we must “ ‘accept all factual allegations in the complaint as true and give the pleader the benefit of all reasonable inferences that can be fairly drawn therefrom.’ ” Ordonez v. Yost,
According to the Stars, they are husband and wife living at 1708 Brittany Drive in Ambler, Pennsylvania, while the Rosenthals are husband and wife living in West Palm Beach, Florida. Pis.’ Compl. ¶¶ 2-3. The Stars aver that on August 21, 2008 they entered into an Agreement of Sale (the “Agreement”) with the Rosenthals to purchase the Rosenthals’ residential property (the “house”) located at 1708 Brittany Drive in Ambler. The Rosenthals had lived in the house continuously from its construction in 1987 until its sale to the Stars. Id. ¶¶ 4-6.
The Agreement provided that “[t]he following are part of this Agreement if checked: ... Seller’s Property Disclosure [checked].” Ex. A to Pis.’ Compl. (“Agreement”) § 34; see also Pis.’ Compl. ¶ 7. The Seller’s Property Disclosure Statement (the “Disclosure”) that the Rosenthals provided to the Stars included the following questions: (1) “Are you aware of any water leakage, accumulation, or dampness within the basement or crawl space?,” Ex. B to Pis.’ Compl. (“Disclosure”) § 4(b); (2) “Are you aware of any fire, storm, water, or ice damage to the property?,” id. § 6(f); (3) “Do you know of any past or present drainage or flooding problems affecting the property?,” id. § 16(b)(2); (4) “Are you aware of any insurance claims filed relating to the property?,” id. § 19(g); and (5) “Are you aware of any material defects to the property, dwelling, or fixtures which are not disclosed elsewhere on this form?” Id. § 19(h). The Rosenthals checked “No” in response to each of these questions. Id. §§ 4(b), 6(f), 16(b)(2), 19(g)-(h); see also Pis.’ Compl. ¶¶ 8, 10-13. The Disclosure also included the question, “Are you aware of any past or present water leakage in the house or other structures?”, and in response the Rosenthals checked “Yes” and wrote “upstairs hall bathroom windows leaked, replaced in 1993.” Disclosure § 6(a); see also Pis.’ Compl. ¶ 9.
The Stars further allege that during a September 3, 2008 home inspection they attended with an (unnamed) inspector they had hired, Lawrence Rosenthal “specifically denied any water infiltration in the basement of the House.” Pis.’ Compl. ¶ 19. During the same inspection, when Lawrence heard the inspector say that “any signs of water penetration in the basement occurred while the House was being built and before it was fully enclosed,” he did not correct this statement. Id. ¶ 20.
According to the Stars, in the summer of 2009 “the area experienced heavy directional rain and wind which pounded against the front of the House,” causing “water to literally flow over the front wall of the basement of the House,” Id. ¶ 15. During each subsequent storm involving heavy directional rain, water flowed in and through the living room windows, in and around the front door, and over and through the front wall of the basement of the house. Id. ¶¶ 16-17. Nonetheless, during an October, 2009 visit by the Rosenthals at which the Stars recounted their recent experience of basement water infiltration, the Rosenthals denied having had any prior water infiltration. Id. ¶ 18.
The Stars claim that in the summer of 2011 they discovered files in the house’s basement — titled “Lib. Mut. — Claim—90-91” and “LM/Cutler Lawsuit 91-92” — that the Rosenthals had left behind. Id. ¶¶ 21-22. The Stars allege that these files demonstrate that the Rosenthals experienced significant and persistent water infiltration throughout the house and that they filed an insurance claim and lawsuit related to
The Stars allege that each of the Rosenthals’ answers on the Disclosure was false, and that the Rosenthals knew them to be false at the time they made them.
Notably, the Agreement contains the following release language at § 27:
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 wood-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.
II. Analysis
The Supreme Court has explained that “only a complaint that states a plausible claim for relief survives a motion to dismiss” pursuant to Rule 12(b)(6), leading a reviewing court to engage in a “context-specific” inquiry that “requires [it] to draw on its judicial experience and common sense.” Ashcroft v. Iqbal,
Rather, a plaintiff must provide “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary elements]” of each cause of action. Phillips v. County of Allegheny, 515 F.3d
We will take up each of the Stars’ claims in turn.
A. Count I: Violation Of Pennsylvania’s RESDL
The Stars aver that “[p]ursuant to 68 Pa. Con. Stat. Ann. § 7301(11), Defendants are liable to Plaintiffs for any and all actual damages suffered as a result of Defendants’ violation of the Real Estate Seller’s Disclosure Law, and the damages alleged in this complaint were proximately caused by Defendants’ intentional concealment of known defects.” Pis.’ Compl. ¶43. The Rosenthals respond that “the Plaintiffs failed to file their RESDL claim within the applicable two-year statute of limitations and, in fact, missed the statutory deadline by more than a year,” so that “Count I of Plaintiffs’ Complaint is time-barred and should be dismissed.” Defs.’ Mem. in Supp. of Mot. Dismiss (“Defs.’ Mem.”) at 6.
The Stars retort that “there is no doubt that [they] have alleged facts sufficient to trigger Pennsylvania’s tolling principles. The only issue is whether tolling principles apply to claims under the RESDL, which is a question of first impression,” Pis.’ Resp. to Def.’s Mot. Dismiss (“Pis.’ Resp.”) at 8. The Stars suggest that we should answer this question in the affirmative (1) based on the legislative history of the RESDL, id. at 8-9; and (2) by analogy to other consumer protection statutes and common law claims. Id. at 9-11.
Under 68 Pa. Cons.Stat. Ann. § 7303,
Any seller who intends to transfer any interest in real property shall disclose to the buyer any material defects with the property known to the seller by completing all applicable items in a property disclosure statement which satisfies the requirements of section 7304 (relating to disclosure form). A signed and dated copy of the property disclosure statement shall be delivered to the buyer in accordance with section 7305 (relating to delivery of disclosure form) prior to the signing of an agreement of transfer by the seller and buyer with respect to the property.
Section 7308 adds that “[i]n completing the property disclosure statement, the seller shall not make any representations that the seller or the agent for the seller knows or has reason to know are false, deceptive or misleading and shall not fail to disclose a known material defect.” Section § 7311 provides that
(a) General rule. — A residential real estate transfer subject to this chapter shall not be invalidated solely because of the failure of any person to comply with any provision of this chapter. However, any person who willfully or negligently violates or fails to perform any duty prescribed by any provision of this chapter shall be hable in the amount of actual damages suffered by the buyer as a result of a violation of this chapter. This subsection shall not be construed so as to restrict or expand the authority of a court to impose punitive damages or apply other remedies applicable under any other provision of law.
(b) Statute of limitations. — An action for damages as a result of a violation of this chapter must be commenced within two years after the date of final settlement.
As our Court of Appeals has explained, “[w]hen a state’s highest court has not spoken on a subject, we must attempt to predict how that tribunal would rule. In making such determinations, we give due deference to the decisions of lower Pennsylvania courts.” U.S. Underwriters Ins. Co. v. Liberty Mut. Ins. Co.,
The Stars correctly note that “Pennsylvania courts apply both the discovery rule and the doctrine of fraudulent concealment to toll a statute of limitations,” Pls.’ Resp. at 7. See, e.g., Pulli v. Ustin,
The difference between statutes of repose and statutes of limitations is that statutes of limitation[s] are procedural devices which bar recovery on a viable cause of action, where statutes of repose are substantive in nature because they extinguish a cause of action and preclude its revival. In addition, statutes of limitation[s] begin to run from the time of an injurious occurrence or discovery of the same, whereas statutes of repose run for a statutorily determined period of time after a definitely established event independent of an injurious occurrence or discovery of the same.
Miller v. Stroud Twp.,
Critically, tolling doctrines are inapplicable to statutes of repose unless such doctrines are explicitly incorporated into the given statute. See, e.g., Westinghouse Elec. Corp./CBS v. W.C.A.B. (Korach), 584 Pa.411,
The Stars note that § 7311(b) is entitled “Statute of limitations,” not “Statute of repose.” Pis.’ Resp. at 8. But a title has minimal probative value regarding the actual character of this provision given that other Pennsylvania statutory provisions that indisputably impose statutes of repose are nonetheless sometimes identified by the General Assembly as statutes of limitations. Compare, e.g., 13 Pa. Cons. Stat. Ann. § 2725 (defining “Statute of limitations in contracts for sale”) with Nationwide Ins. Co. v. General Motors Corp./Chevrolet Motor Div.,
The Stars also suggest that when the RESDL was enacted, “[t]he legislature reasoned that the two-year period would typically be adequate time to bring a claim because most ‘problem[s] with [a] property [are] discovered within the first several weeks of occupancy,’ and the statute ‘gives the buyer two years to discover what the problems may be.’ ” Pis.’ Resp. at 9 (quoting 1996 Pa. Leg. J. — Senate 2139 (Jun. 18, 1996) (statement of Sen. Corman)) (brackets in Pl.’s Resp. and emphasis omitted). 1 Pa. Cons.Stat. Ann. § 1921(c)(7) provides that “[w]hen the words of the
While we believe that the language of § 7311 unambiguously demonstrates that it imposes a statute of repose, to the extent this remains open to debate the legislative history that the Stars cite only fortifies our, conclusion that this provision does not impose a statute of limitations. After all, if the tolling principles normally applicable to statutes of limitations — including the discovery rule — were meant to apply to the RESDL, there would have been no need for Senator Corman to explain that “if there is a problem with the property it is discovered within the first several weeks of occupancy, and here it gives the buyer 2 years to - discover what the problems may be.” 1996 Pa. Leg. J. — Senate 2139 (June 18,1996) (statement of Sen. Corman). See also 1996 Pa. Leg. J. — Senate 2138 (June 18, 1996) (statement of Sen. Brightbill) (“What this does is shortens the time period from 6 years to 2 years. What that means is that unless a consumer quickly and accurately determines what the problems are with a property, they lose their cause of action.”). The suggestion by Senators Corman and Brightbill that a plaintiff might lose a cause of action under the RESDL if a problem or defect is not discovered within two years of final settlement underscores that tolling principles do not apply to § 7311.
Finally, the Stars contend that “[g]iven Pennsylvania’s concern for protecting consumers from fraud and misrepresentation, and the Commonwealth’s broad application of tolling principles in general, the Pennsylvania Supreme Court would almost certainly find that tolling principles are to be applied to claims under the RESDL,” Pis.’ Resp. at 11. In support of this argument the Stars point to the applicability of tolling .to claims under the UTPCPL, negligence and fraud claims, and certain federal claims. Id. at 9-11. Of course, whether tolling applies to common law and federal causes of action is an inquiry that sheds little light upon whether it similarly applies to the RESDL. As for the UTPCPL, our capacity to analogize this statute to the RESDL is hampered by the wholly different language the Pennsylvania General Assembly used to impose temporal limits upon claims under the UTPCPL. See, e.g., Gabriel v. O’Hara,
We further note that, as Judge Wettrick of the Allegheny County Court of Common Pleas has observed, the “Disclosure Law expands the seller’s obligations and the buyer’s remedies” as compared to the common law. Vaughn v. Drab, 73 Pa. D. & C.4th 550, 556 (Pa.Com.Pl.2005). Given the potency of the RESDL, it should not be surprising that the Pennsylvania General Assembly chose to impose strict limits on when claims under this statute could be brought.
In the end, the language of Section 7311(b) makes plain that this statute is one of repose not amenable to tolling, and thus the Stars’ arguments against this conclusion do not persuade. The complaint makes clear that the date of final settlement preceded October of 2009 — when the
B. Counts II & TV: Misrepresentation
In support of their fraudulent misrepresentation claim, the Stars contend "that “[defendants made their representations, both prior to and after the sale, intending that the Plaintiffs would rely upon their representations, and the Plaintiffs did, in fact, justifiably rely to their detriment on the Defendants’ misrepresentations.” Pis.’ Compl. ¶ 48. As for their negligent misrepresentation claim, the Stars claim that “misrepresentations were made by the Defendants under circumstances in which the Defendants ought to have known of their falsity” and “with the intent to induce Plaintiffs to purchase the House,” id. ¶¶ 58-59, causing damages to the Stars. Id. ¶ 60. The Rosenthals respond that “Plaintiffs’ fraudulent and negligent misrepresentation claims are barred by the gist of the action doctrine because they are nothing more than contract claims masquerading as tort claims.” Defs.’ Mem. at 7. The Stars retort that “Defendants’ misrepresentations and omissions occurred prior to signing the AOS and were violations of duties imposed by common law and statute, and not by the AOS. Thus, the gist of the action doctrine has no application.” Pis.’ Resp. at 16.
As Judge McVerry noted last year, “[t]he Pennsylvania Supreme Court has not expressly adopted the gist of the action doctrine,” though “both the United States Court of Appeals for the Third Circuit and the Pennsylvania Superior Court have predicted it would do so.” PPG Indus., Inc. v. Generon IGS, Inc.,
Tort actions lie for breaches of duties imposed by law as a matter of social policy, whereas contract actions lie only for breaches of duties imposed by consensual agreements between particular individuals. Thus, a claim is limited to a contract claim when the parties!’] obligations are defined by the terms of the contracts, and not by the larger social policies embodied by the law of torts. On the other hand, if the contract is merely collateral to the wrong described, the existence of a contract does not prevent recovery in tort. Pennsylvania courts'have recognized four areas where the gist of the action doctrine precludes recovery in tort: (1) where liability arises solely from the contractual relationship between the parties; (2)when the alleged duties breached were grounded in the contract itself; (3) where any liability stems from the contract; and (4) when the tort claim essentially duplicates the breach of contract claim or where the success of the tort claim is dependent on the success of the breach of contract claim.
The gravamen of the Rosenthals’ argument is that “absent the Agreement and the Seller Disclosure, the Rosenthals’ purported obligation to reveal known, material defects to the Plaintiffs would not have materialized.” Defs.’ Mem. at 8. This is plainly untrue under Pennsylvania law. As the Superior Court of Pennsylvania explained in Roberts v. Estate of Barbagallo,
a vendor or his agent may be liable not only for failure to disclose a dangerous condition but also for failure to disclose material information. Section 550, Restatement, Second, of Torts provides:
§ 550[.] Liability for Fraudulent Concealment
One party to a transaction who by concealment or other action intentionally prevents the other from acquiring material information is subject to the same liability to the other, for pecuniary loss as though he had stated the nonexistence of the matter that the other was thus prevented from discovering.
Liability under this section is encompassed by the Supreme Court’s rule that fraud may arise by: 1) the making of a knowingly false representation of fact; 2) an intentional concealment of true facts which is calculated to deceive the other party; or 3) a nonprivileged failure to disclose certain facts to the other party.... Under § 550, the concealment must be intentional and it must relate to material information.
In the context of sales of real property, a seller not only has an obligation not to intentionally conceal material information, but must also avoid innocent misrepresentations of material facts. See Boyle v. Odell,
In Onconome, Inc. v. Univ. of Pittsburgh,
Under Count III of the complaint, the Stars aver that “[ujnder the UTPCPL, 73 P.S. § 201 — 2(4)(xii), it is unlawful for one to engage in any deceptive or fraudulent conduct which creates confusion or misunderstanding in the sale of real estate” and that “[t]he fraudulent misrepresentations of Defendants were intentionally false and deceptive and created a misunderstanding on the part of Plaintiffs with respect to their purchase of the House.” Pis.’ Compl. ¶¶ 52-53. The Rosenthals counter that (1) “[t]he language of that section [§ 201-2(4)(xii) ] does not pertain to real estate transactions as Plaintiffs allege and is wholly inapplicable to the case at bar,” Defs.’ Mem. at 9-10, and (2) “[t]o the extent the Plaintiffs argue that their claim is based upon [73 Pa. Cons.Stat. Ann. § 201-2(4)(xxi) ] of the UTPCPL, Count III of Plaintiffs’ Complaint should still be dismissed because Plaintiffs’ claim is barred by the economic loss doctrine.” Id. at 10. The Stars respond that “the economic loss rule cannot be applied to allow Defendants — who are clearly guilty of fraud — to escape statutory liability.” Pis.’ Resp. at 20.
Under 73 Pa. Stat. Ann. § 201-2(4),
“Unfair methods of competition” and “unfair or deceptive acts or practices” mean any one or more of the following:
(xii) Promising or offering prior to time of sale to pay, credit or allow to any buyer, any compensation or reward for the procurement of a contract for purchase of goods or services with another or others, or for the referral of the name or names of another or others for the purpose of attempting to procure or procuring such a contract of purchase with such other person or persons when such payment, credit, compensation or reward is contingent upon the occurrence of an event subsequent to the time of the signing of a contract to purchase;
(xxi) Engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding.
The Rosenthals are thus correct in their assertion that § 201-2(4)(xii) has no relevance to the facts of this case, and we will presume that the Stars bring Count IV pursuant to § 201-2(4)(xxi) — also known as the “catchall provision.”
Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real or personal, as a result of the use or employment by anyperson of a method, act or practice declared unlawful by section 3 of this act, may bring a private action to recover actual damages or one hundred dollars ($100), whichever is greater. The court may, in its discretion, award up to three times the actual damages sustained, but not less than one hundred dollars ($100), and may provide such additional relief as it deems necessary or proper. The court may award to the plaintiff, in addition to other relief provided in this section, costs and reasonable attorney fees.
The Rosenthals challenge the Stars’ assertion of a UTPCPL claim pursuant to the economic loss doctrine, which, as our Court of Appeals explained in Duquesne Light Co. v. Westinghouse Elec. Corp.,
The doctrine received another infusion of energy from Werwinski v. Ford Motor Co.,
On the one hand, several formulations of the economic loss doctrine appear to suggest that it bars the Stars’ UTPCPL claim. While the Stars’ entitlement to economic losses
Pennsylvania courts have not hesitated to permit claims under the UTPCPL involving transactions in real property— even where plaintiffs claimed only economic losses. See, e.g., Schwartz,
We therefore conclude that to the extent we are bound by our Court of Appeals’s prediction as to how the Supreme Court of Pennsylvania would apply the economic loss doctrine to UTPCPL claims, see, e.g., DeFebo v. Andersen Windows, Inc.,
D. Count V: Breach of Contract
The Stars plead their breach of contract claim in the alternative, averring that “Defendants materially breached the Agreement of Sale by making the misrepresentations and omissions described above.” Pis.’ Compl. ¶ 63. The Rosenthals respond that “the Agreement which ostensibly forms the basis of Plaintiffs’ breach of contract claim contains a release which effectively bars claims by the Plaintiffs arising out of the condition of the property at the time of sale.” Defs.’ Mem. at 15. In fact, the release notes that “[s]hould 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.” Agreement § 27. Thus, to the extent the Rosenthals’ alleged misrepresentations breached the Agreement, the Stars retain the right to bring a claim based upon this breach,
E. Count VI: Unjust Enrichment
Finally, the Stars also assert an unjust enrichment claim in the alternative, alleging that “[t]he Defendants’ retention of the full sale price of the House is wrongful because said money was obtained as the direct result of the defendants’ intentional and knowing misrepresentations.” Pis.’ Compl. ¶ 66. The Rosenthals suggest that “Plaintiffs’ unjust enrichment claim must be dismissed because there is an express contract which governs the parties’ relationship.” Defs.’ Mem. at 15.
It is true that the Pennsylvania Supreme Court has “found the quasi-contractual doctrine of unjust enrichment inapplicable when the relationship between parties is founded on a written agreement or express contract.” Schott v. Westinghouse Elec. Corp.,
This does not mean ... that the existence of an express contract between the parties will always preclude a quantum meruit claim. Rather, the Court must inquire at the motion to dismiss stage whether there is any dispute as to the existence of the express contract, and whether the scope of the contract includes the transaction that is the basis for the quantum meruit claim.
See also 18 KT.TV, LLC v. Entest Biomedical, Inc.,
Thus, though the Rosenthals apparently concede that a contract exists between them and the Stars, the Stars may nonetheless opt to rescind this contract. Should they so elect, they would be entitled to sue for unjust enrichment on the basis of any improvements they have made to the house. Because the Stars have not yet chosen which remedy they will seek, we will permit them to plead an unjust enrichment claim in the alternative to the contract claim asserted in Count V of the complaint.
ORDER
AND NOW, this 9th day of August, 2012, upon consideration of plaintiffs Gregory J. and Luba Star’s (collectively, the “Stars’ ”) complaint (docket entry # 1), defendants Lawrence J. and Phyllis B. Rosenthal’s (collectively, the “Rosenthals”) motion to dismiss the complaint (docket entry # 4), and the Stars’ response in opposition thereto (docket entry # 6), and upon the analysis set forth in the accompanying Memorandum, it is hereby ORDERED that:
1. The Rosenthals’ motion to dismiss the complaint (docket entry # 4) is GRANTED IN PART;
2. Count I of the Stars’ complaint (docket entry # 1) is DISMISSED WITH PREJUDICE; and
3. By August 23, 2012, the Rosenthals shall FILE an answer to the surviving counts of the complaint.
Notes
. The docket lists the latter defendant’s name as “Phyllis B. Rosenthal,” in obvious error.
. Because the amount in controversy exceeds $75,000 and the parties are completely diverse, we have jurisdiction over this matter pursuant to 28 U.S.C. § 1332.
. The Stars elaborate that the Rosenthals' response to Disclosure § 6(a) was "purposefully incomplete” and designed to "create!] the appearance of candor as a means to gain the Stars' trust and confidence.” Id. ¶ 30.
. The Stars allege that the Rosenthals made representations during this visit that "were consistent with representations made ... pri- or to the sale,” Pis.’ Compl. ¶ 18, and the only logical inference from this averment is that the Rosenthals’ October, 2009 visit postdated the final settlement.
. The extinguishment of the Stars' RESDL claim does not, however, mean that the Stars cannot bring a breach of contract claim predicated upon allegedly false disclosures the RESDL mandates and which were incorporated into the agreement of sale. See Rendon v. Ragans,
. In a sense, the Stars' breach of contract claim duplicates their misrepresentation claims-not vice versa, as commonly seen when the gist of the action doctrine is invoked. Cf. Sarsfield,
. We note that while there is some question as to whether the UTPCPL applies to transactions in real property, those Pennsylvania courts to consider the question have thus far concluded that it does. See Schwartz v. Rockey,
. The Stars argue that "Defendants improperly categorize the Stars’ damages as being limited to solely economic losses,” since "certain of their damages are presently unknown and, given that their harm relates to long-term water infiltration issues, further investigation may reveal a mold problem.” Pis.’ Resp. at 18. Given that the Stars do not allege that they have suffered such injury in their complaint, we will not consider this allegation in ruling on the Rosenthals’ motion. As for the Stars' claimed damages for emotional distress, "because claims for emotional distress are not compensable under the UTPCPL the fact that Plaintiffs have [pled] them is immaterial.” Sarsfield,
. The Stars’ misrepresentation claims would also appear to survive the release clause, since such "clauses do not defeat a misrepresentation claim recognized under the LeDonne [v. Kessler,
. While the language of Roberts expressly concerns a real estate broker’s misrepresentations, the logic of the decision makes clear that this general rule applies to a seller’s misrepresentations as to real property as well.