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Superior Court of New Jersey, Appellate Division
July 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,v.ANHEL CARRILLO, Defendant-Appellant.
Submitted December 18, 2012
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-02-0077.
Joseph Krakora, Public Defender, attorney for appellant (M. Virginia Barta, Designated Counsel, on the brief)
Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).
Before Judges Waugh and St. John.
Defendant Anhel Carrillo appeals from the denial of his application for entry into a Pre-Trial Intervention (PTI) program. We affirm.
The record discloses the following facts and procedural history leading to the determination under review.
On February 26, 2008, Hunterdon County Indictment No. 09-02-0077 was filed charging defendant with one count of third-degree causing death while driving unlicensed, contrary to N.J.S.A. 2C:40-22; two counts of third-degree tampering with public records or information, contrary to N.J.S.A. 2C:28-7(a)(1) or (2); and two counts of fourth-degree falsifying or tampering with records, contrary to N.J.S.A. 2C:21-4(a).
On April 2, 2008, the Criminal Division Manager of Hunterdon County PTI did not recommend defendant's application to PTI. On January 8, 2009, Judge Mahon granted defendant's motion to dismiss the causing death while driving unlicensed count, and also defendant's motion for a change of venue, transferring venue to Mercer County. As a result of the dismissal, defendant was permitted to reapply to PTI. However, the Mercer County Assistant Division Manager rejected defendant's application. The reasons given for the rejection included that even though the charge was dismissed, "we can not overlook the fact that a death did occur and it is a factor to consider. Your decision and affirmative actions to fraudulently obtain driving credentials enabled you to drive on the road which had fatal results."
Defendant appealed. He argued that State v. Brooks, 175 N.J. 215 (2002), allowed consideration of dismissed charges solely for the limited purpose of determining whether those charges should have deterred him from committing a subsequent offense, and should not have been considered in rejecting his application. The State contended that Brooks permitted it to consider the fatality as part of the case, and but for defendant's fraudulent license, the fatality would not have occurred.
Judge Gerald Council denied defendant's appeal setting forth his reasons in an oral opinion. The judge determined that the PTI coordinator "appropriately considered the total circumstances in arriving at the conclusion. That the defendant lacks the rehabilitative qualities that suggested he would be amenable to pretrial intervention treatment." The judge noted that the record demonstrated defendant's lack of truthfulness on numerous occasions. He concluded by stating, "[a]nd quite frankly, I'm satisfied that the coordinator and the State have legitimate and sufficient reasons to deny defendant's application to PTI."
Thereafter, before Judge Robert Billmeier, defendant entered a conditional plea of guilty pursuant to Rule 3:9-3(f), to two counts of third-degree tampering with public records, N.J.S.A. 2C:28-7(a)(1); the motor vehicle offenses of unlicensed driver, N.J.S.A. 39:3-10; and failure to keep right, N.J.S.A. 39:4-82. Defendant was sentenced to two concurrent terms of probation, and community service. Appropriate fines and penalties were also imposed. Defendant appealed.
Defendant submits a single point for our consideration.
Defendant argues the prosecutor abused his discretion when he denied his application to participate in the PTI program. He contends the prosecutor's decision was based primarily on inappropriate factors and failure to consider all relevant factors. Further, he asserts that Judge Council misapplied the Court's guidance in Brooks. We disagree.
PTI is "a discretionary program diverting criminal defendants from formal prosecution." State v. Caliguiri, 158 N.J. 28, 35 (1999). "The purposes, goals, and considerations relevant to PTI are found at N.J.S.A. 2C:43-12, and in Rule 3:28." Brooks, supra, 175 N.J. at 223. The Supreme Court formally adopted Guidelines For Operation of Pretrial Intervention in New Jersey (Guidelines) on September 8, 1976. Pressler & Verniero, Current N.J. Court Rules, comments on R. 3:28 (2012). The Guidelines are not mandatory. State v. Leonardis (Leonardis I), 71 N.J. 85, 111 (1976). Rather, they embody the considerations delineated in N.J.S.A. 2C:43-12(e). Brooks, supra, 175 N.J. at 224.
A prosecutor's review of an offender's application for PTI must be informed by certain principles. First, "PTI decisions are 'primarily individualistic in nature' and a prosecutor must consider an individual defendant's features that bear on his or her amenability to rehabilitation." State v. Nwobu, 139 N.J. 236, 255 (1995) (quoting State v. Sutton, 80 N.J. 110, 119 (1979)); see also N.J.S.A. 2C:43-12(b) ("Admission of an applicant into a program of supervisory treatment shall be measured according to the applicant's amenability to correction, responsiveness to rehabilitation and the nature of the offense."). Second, the State's determination, grounded on the specific facts presented, must be guided by the relevant factors set forth in the statute, N.J.S.A. 2C:43-12(e), and described in the Guidelines accompanying Rule 3:28. Pressler & Verniero, supra, Current N.J. Court Rules, comments on R. 3:28 Guideline 3.
Generally, the scope of a trial court's review of the State's decision to reject a PTI application is "'severely limited, '" Nwobu, supra, 139 N.J. at 246 (quoting State v. Kraft, 265 N.J.Super. 106, 111 (App. Div. 1993)), as the initial decision to accept or reject a defendant's PTI application lies within the scope of the prosecutor's discretion in selecting "whom to prosecute and whom to divert to an alternative program, such as PTI." State v. Wallace, 146 N.J. 576, 582 (1996) (citing State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977)). This decision is entitled to considerable deference. Id. at 582-83; State v. DeMarco, 107 N.J. 562, 566 (1987). "In fact, the level of deference which is required is so high that it has been categorized as 'enhanced deference' or 'extra deference.'" Kraft, supra, 265 N.J.Super. at 111 (quoting DeMarco, supra, 107 N.J. at 566; State v. Dalglish, 86 N.J. 503, 513-14 n.1 (1981)).
"Against this backdrop, it is quite clear that 'a trial [court] does not have the authority in PTI matters to substitute [its own] discretion for that of the prosecutor.'" Id. at 112 (quoting State v. Von Smith, 177 N.J.Super. 203, 208 (App. Div. 1980) (alterations in original)). This applies even where the trial court disagrees with the prosecutor's decision, or finds it to be harsh. See DeMarco, supra, 107 N.J. at 567. Judicial interference must be reserved only for those cases where it is necessary to correct "the 'most egregious examples of injustice and unfairness.'" State v. Negran, 178 N.J. 73, 82, (2003) (quoting Leonardis II, supra, 73 N.J. at 384).
Even so, a prosecutor's discretion in such a matter is not "unbridled." Wallace, supra, 146 N.J. at 582. A defendant attempting to overcome a prosecutorial veto must "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J. at 382.
If a rejected defendant can prove the State's decision: "(a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment, " then an abuse of discretion would "[o]rdinarily ... be manifest." State v. Bender, 80 N.J. 84, 93 (1979). Thus, the State's decision must be "'clearly unreasonable so as to shock the judicial conscience'" or "'could not have reasonably been made upon a weighing of the relevant factors.'" Nwobu, supra, 139 N.J. at 254 (quoting State v. Roth, 95 N.J. 334, 365-66 (1984)).
In the present appeal, defendant argues that the prosecutor improperly considered facts that formed the basis for the third-degree causing death while driving unlicensed charge even though that charge was dismissed prior to defendant's plea. A similar issue arose in Brooks. In that case, the police conducted a traffic stop of the defendant, a bail bondsman and private investigator. During the course of that stop, the defendant was found to be carrying a loaded and unsecured .380 9mm handgun in his car. Additionally, the remains of a marijuana cigar were discovered, along with an open can of beer. The defendant was charged with unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5(b), and possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10(a)(4). He was also issued a summons for speeding and for driving with an open container of alcohol in his car. Brooks, supra, 175 N.J. at 220.
The defendant sought PTI, which was denied. The prosecutor noted that defendant's juvenile history included five arrests between 1987 and 1988 on various charges including receipt of stolen property, truancy, burglary, and theft, which were eventually dismissed. Additionally, the defendant's juvenile history disclosed the imposition of two probationary terms. The first stemmed from charges of eluding, possession of a stolen vehicle, and motor vehicle theft. The second was for trespass. As an adult, the defendant had been arrested on two occasions, one of which involved possession of a weapon. However, all charges had been dismissed. Id. at 222. Following denial of PTI, the defendant entered into a plea agreement pursuant to which he pleaded guilty to the handgun charge, and the prosecutor dropped the drug possession and open-container charges. The right to appeal the denial of PTI was preserved. Id. at 222.
An issue on appeal was the extent to which the prosecutor could consider the dismissed charge stemming from prior arrests in denying PTI. With respect to those charges, the Supreme Court held that it was proper for the prosecutor to consider those charges in the same fashion as a trial judge would when considering a record of arrests when sentencing a defendant. Id. at 228-29. Nonetheless, the Court limited the consideration given to such charges, holding:
Under no circumstances may a court, prosecutor, or PTI director infer guilt in respect of any dismissed charge or count of an indictment contained in an applicant's record. Those aspects of a defendant's history, if considered at all, may be reviewed solely from the perspective of whether the arrest or dismissed charge should have deterred the defendant from committing a subsequent offense. Moreover, a prosecutor's or program director's written rejection of a given application must reflect only a proper consideration of such information.
[Id. at 229.]
In the present matter, defendant relies on this language in support of his position; however, it is inapplicable because defendant had no prior record and there was no evidence from which to draw an inference as to whether prior arrests had operated to deter defendant from future criminal conduct.
In Brooks, in evaluating the denial of PTI, the Court also addressed the charges filed against the defendant in the matter on appeal and the extent to which the dismissed charges could be considered. This analysis directly bears upon the current case. The Court held:
The facts surrounding the gun, drug, and open-container charges formed an adequate basis to support the prosecutor's decision when considered in concert with other relevant factors found under the statue and Guidelines. In that respect, we note that in evaluating an application a prosecutor or PTI director is not limited to the offenses formally contained in a plea agreement. In that connection, those officials "may look beyond the plea to the actual facts when they are not in dispute, as it is the conduct not the charge [that] governs."
[Id. at 230 (quoting State v. Imbriani, 280 N.J.Super. 304, 316 (Law Div. 1994), aff'd, 291 N.J.Super. 171 (App. Div. 1996)).]
Just as in Brooks, here, defendant did not contest his charge of driving with a fraudulent license and its fatal result. We agree with the State that it was proper for the prosecutor to rely on those allegations as a basis for his decision, and it was likewise proper for the trial judge to regard those allegations, together with the other considerations he found, as a sufficient foundation for the prosecutor's determination to deny PTI.
Defendant cannot overcome the enhanced deference that we must accord to the decision of a prosecutor to admit or reject a person for participation in this diversionary program. Although the serious nature of the fatality informed the decision of the prosecutor, the record does not suggest that he categorically denied the application due to that consideration. See Caliquiri, supra, 158 N.J, at 43-44. Rather, the record demonstrates that the prosecutor carefully evaluated all relevant factors, as well as defendant's role in the underlying events. We agree that defendant did not "clearly and convincingly establish that the prosecutor's refusal to sanction admission into [PTI] was based on a patent and gross abuse of his discretion." Leonardis II, supra, 73 N.J, at 382.
In short, we cannot hold that this is one of those rare "most egregious examples of injustice and unfairness." Negran, supra, 178 N.J, at 82.
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Abstract:The City of Phoenix operates two large WWTPs: the 23rd Avenue WWTP (63 MGD, owned by the City of Phoenix, Arizona), and the 91st Avenue Multi-Cities WWTP (180 MGD, owned by the Sub-Regional Operating Group (SROG) cities of Glendale, Mesa, Phoenix, Scottsdale and Tempe, Arizona). Both facilities employ centrifuges for thickening primary and secondary sludges, mesophilic anaerobic digestion, and centrifuges for dewatering digested sludge. Between the two facilities, roughly 650 wet tons/day of 20% total solids class B biosolids are produced, all of which is land applied locally (mileage from WWTPs is between 26 and 88 miles). No long-term biosolids storage is present at either WWTP. The 20% cake is removed daily from sludge hoppers by a contract hauler.
Except for molybdenum, biosolids from the two Phoenix facilities have consistently stayed well below 503 land application pollutant concentration limits, due in large part to effective industrial pretreatment and local limits efforts. Molybdenum concentration in biosolids has a seasonal variation in Phoenix, with the highest concentrations developing in late summer, linked to the use of molybdenum-containing products in cooling towers. During the summer of 2004, preliminary August biosolids molybdenum concentrations at both facilities (76 mg/kg at 23rd Avenue and 74 mg/kg at 91st Avenue) approached the 503 ceiling limit (75 mg/kg), prompting an intensified effort.
This case study will look at:
The multi-organization coordination efforts that are needed to help reduce the risk of land applying biosolids that do not meet 503 pollutant concentration limits, considering that no long-term biosolids storage is available at the WWTPs.
Coordination with local industries, commercial facilities, chemical suppliers, and chemical manufacturers to initiate pollution prevention measures such as product substitution or product reduction to minimize molybdenum discharges to the sewer system.
The progress to date in reducing future molybdenum concentrations.
Document Type: Research Article
DOI: https://doi.org/10.2175/193864706783797456
Publication date: 2006-01-01
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August 9, 2012
GREGORY J. STAR, ET AL.v.LAWRENCE J. ROSENTHAL, ET AL.
Plaintiffs Gregory J. and Luba Star (collectively, the "Stars") bring suit against defendants Lawrence J. and Phyllis B. Rosenthal*fn1 (collectively, the "Rosenthals"), asserting several Pennsylvania state-law claims arising out of the Stars' purchase of a house from the Rosenthals.
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*fn2 against the Rosenthals: (1) violation of Pennsylvania's Real Estate Seller Disclosure Law ("RESDL"), 68 Pa. Cons. Stat. Ann. §§ 7301, et seq.; (2) fraudulent misrepresentation; (3) violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 73 Pa. Stat. §§ 201-1, et seq.; (4) negligent misrepresentation; (5) breach of contract; and (6) unjust enrichment. The Stars plead their fifth and sixth counts in the alternative to the other claims they present.
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.
I. 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, 289 Fed. Appx. 553, 554 (3d Cir. 2008) (quoting Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993)). We may "'consider only allegations in the complaint, exhibits attached to the complaint, matters of public record, and documents that form the basis of a claim,'" Brown v. Daniels, 128 Fed. Appx. 910, 913 (3d Cir. 2005) (quoting Lum v. Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004)), where a document forms the basis of a claim if it is "integral to or explicitly relied upon in the complaint." In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)) (emphasis and internal quotation marks omitted). As our Court of Appeals has explained, this means that we may "consider an undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are based on the document." Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). Since the Stars' complaint relies in part on certain documents, we will review both the allegations of the complaint and the features of those documents that are material to the Rosenthals' motion to dismiss.
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. Pls.' 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 Pls.' Compl. ("Agreement") § 34; see also Pls.' 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 Pls.' 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 Pls.' 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 Pls.' 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." Pls.' 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 this infiltration. Id. ¶ 23. The Stars also aver that during that same summer they found photographs dated between 1990 and 1992 that the Rosenthals had taken of extensive water infiltration through the windows, front door, and basement of the house that mirrored the infiltration the Stars experienced. Id. ¶ 25.
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.*fn3 Id. ¶¶ 14, 26-30. The Stars claim that had they "been told the truth about the extensive and persistent water infiltration to which the House had been subjected for more than 20 years, they would not have purchased the House." Id. ¶ 31. They thus suggest that they have suffered damages that include: (1) the purchase price of the house; (2) all improvements to the house made since its purchase; (3) all other costs associated with purchasing and maintaining the house; (4) all costs associated with remediation efforts aimed at stemming the flow of water into the house; (5) diminution in the value of the house; (6) "mental anguish, anxiety, and emotional distress"; and (7) "such other further injuries and damages as will be demonstrated through discovery of this matter." Id. ¶ 35.
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, 129 S. Ct. 1937, 1950 (2009). To survive this inquiry, a pleading may not simply offer "labels and conclusions," Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S. Ct. at 1949.
Rather, a plaintiff must provide "enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]" of each cause of action. Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (internal quotation marks omitted). Moreover, a defendant may raise an affirmative defense "on a Rule 12(b)(6) motion if the predicate establishing the defense is apparent from the face of the complaint." Bethel v. Jendoco Constr'n Corp., 570 F.2d 1168, 1174 n.10 (3d Cir. 1978). Thus, a complaint may fail to survive a motion to dismiss either because (1) the plaintiff has failed to supply well-pled allegations in support of one or more elements of a cause of action, or (2) the allegations of the complaint themselves establish that the plaintiff cannot prevail.
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." Pls.' 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," Pls.' Resp. to Def.'s Mot. Dismiss ("Pls.' 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 liable 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., 80 F.3d 90, 93 (3d Cir. 1996) (citations omitted). Our research suggests, however, that no Pennsylvania state or federal court has considered whether § 7311(b) is subject to tolling. We therefore must interpret this provision from scratch, drawing on the plain language of the statute as well as Pennsylvania jurisprudence on tolling, limitations periods, and statutory interpretation.
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, 24 A.3d 421, 425 (Pa. Super. 2011) ("'In Pennsylvania, there are two well-recognized legal constructs that toll the running of the statute of limitations: the discovery rule and the doctrine of fraudulent concealment.'") (quoting Coleman v. Wyeth Pharmaceuticals, Inc., 6 A.3d 502, 510 (Pa. Super. 2010)). But as the Stars themselves recognize, see Pls.' Resp. at 8, Pennsylvania courts distinguish between "statutes of limitations" and "statutes of repose," explaining that
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., 804 A.2d 749, 752 (Pa. Commw. Ct. 2002) (quoting Altoona Area Sch. Dist. v. Campbell, 618 A.2d 1129, 1134 (Pa. Commw. Ct. 1992)) (brackets in Miller).
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), 883 A.2d 579, 588 n.11 (Pa. 2005) ("[A] statute of repose may also prevent the accrual of a cause of action where the final element necessary for its creation occurs beyond the time period established by the statute. At the end of the time period specified in the statute, the cause of action ceases to exist, unless the claimant can bring himself within any tolling provision enunciated in that statute."); Commw., Dept. of Transp., Bureau of Driver Licensing v. Grubb, 618 A.2d 1152, 1155 n.1 (Pa. Commw. Ct. 1992) ("By definition, statutes of repose set a designated event for the statutory period to start running and they provide that at the expiration of the period, any cause of action is barred regardless of the usual reasons for tolling.") (internal quotation marks omitted); DaimlerChrysler Corp. v. Commw., 885 A.2d 117, 121 (Pa. Cmwlth. 2005) ("Because it is a statute of repose, taxpayers' rights to a refund are extinguished and once quashed, due process demands nothing because there are no rights to 'process.' Therefore, Seller's due process rights are not subject to equitable tolling as Seller suggests.") (citation omitted).
As the Supreme Court of Pennsylvania has explained, "the critical distinction in classifying a statute as one of repose or one of limitations is the event or occurrence designated as the 'triggering' event," Westinghouse Elec. Corp., 883 A.2d at 588 n.11. While a statute of limitations has as its triggering event "the point at which all the elements of the action have coalesced, resulting in a legally cognizable claim," a statute of repose "typically sets the triggering event as something other than the point at which the cause of action arises." Id. See also Abrams v. Pneumo Abex Corp., 981 A.2d 198, 211 (Pa. 2009) ("'Unlike an ordinary statute of limitations which begins running upon accrual of the claim, the period contained in a statute of repose begins when a specific event occurs, regardless of whether a cause of action has accrued or whether any injury has resulted.'") (quoting City of McKeesport v. W.C.A.B. (Miletti), 746 A.2d 87, 91 (Pa. 2000)). The triggering event under § 7311 is clearly not the accrual of a cause of action since such a claim coalesces once (1) "any person . . . willfully or negligently violates or fails to perform any duty prescribed by any provision of this chapter," and (2) "actual damages [are] suffered by the buyer as a result of a violation of this chapter." 68 Pa. Cons. Stat. Ann. § 7311(a). Instead, § 7311(b) (emphasis added) provides that "[a]n action for damages as a result of a violation of this chapter must be commenced within two years after the date of final settlement," an event that will often fail to coincide with the occurrence of the two elements described above. Section 7311(b) thus appears to impose a statute of repose, not a statute of limitations.
The Stars note that § 7311(b) is entitled "Statute of limitations," not "Statute of repose." Pls.' 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., 625 A.2d 1172, 1174-75 (Pa. 1993) ("Section 2725 sets tender of delivery as the point at which the cause of action accrues . . . [I]n breach of warranty cases the four-year statute of limitations is essentially a statute of repose."); 77 Pa. Cons. Stat. Ann. § 602 ("[S]aid limitations shall not take effect until the expiration of two years from the time of making of the most recent payment prior to date of filing such petition.") (emphasis added) with Zafran v. W.C.A.B. (Empire Kosher Poultry, Inc.), 713 A.2d 698, 701 n.12 (Pa. Commw. Ct. 1998) ("The period of limitations set forth in section 315 of the Act, 77 P.S. § 602, like other statutes of limitations under the Act, is not a pure statute of limitations but is a statute of repose."); 42 Pa. Cons. Stat. Ann. § 5536(b)(2) (referring to "[t]he limitation prescribed by subsection (a)") (emphasis added) with Miller, 804 A.2d at 752 ("[S]section 5536 of the Judicial Code is a statute of repose.").
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.'" Pls.' 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 statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: . . . [t]he contemporaneous legislative history."
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," Pls.' 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, 534 A.2d 488, 494 (Pa. Super. 1987) ("[T]here being no express limitation on private actions under the UTPCPL, and since their claims fall within the ambit of that statute, the six-year 'catchall' limitations period of section 5527(6) of the Judicial Code, 42 Pa. Cons. Stat. Ann. § 5527(6), applies."); 42 Pa. Cons. Stat. Ann. § 5527 ("Any civil action or proceeding which is neither subject to another limitation specified in this subchapter nor excluded from the application of a period of limitation by section 5531 (relating to no limitation) must be commenced within six years.").
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 Rosenthals allegedly visited the Stars in the house*fn4 . But the Stars did not file their complaint in this action until November 22, 2011 -- more than two years later. Section 7311(b) thus bars the Stars from bringing suit under the RESDL, and we will grant the Rosenthals' motion to dismiss Count I of the complaint.*fn5
B. Counts II & IV: Misrepresentation
In support of their fraudulent misrepresentation claim, the Stars contend that "[d]efendants 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." Pls.' 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." Pls.' 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., 760 F. Supp. 2d 520, 527 n.1 (W.D. Pa. 2011). Judge Rambo described the gist of the action doctrine in Sarsfield v. Citimortgage, Inc., 707 F. Supp. 2d 546, 553 (M.D. Pa. 2010) (citations and internal quotations marks omitted), as follows:
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, 531 A.2d 1125, 1130-31 (Pa. Super. 1987), 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 non-privileged 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, 605 A.2d 1260, 1265 (Pa. Super. 1992) ("[I]f it is determined that a purchaser in a real estate transaction has suffered from fraud by the seller, even in the nature of an innocent misrepresentation of a material fact, a right of rescission is established. Moreover, the purchaser is given the election of remedies; he may seek to rescind the deed, or in the alternative, may sue for damages.") (citations omitted).
In Onconome, Inc. v. Univ. of Pittsburgh, 2009 WL 5064481, at *11 (W.D. Pa. 2009), Judge Schwab emphasized that "the focus of analysis under [the gist of the action] doctrine is whether actions lie from a breach of the duties imposed as a matter of social policy or from the breach of duties imposed by mutual consensus pursuant to contract." The Rosenthals' obligations to (1) disclose known, material defects to the Stars and (2) avoid innocent misrepresentations as to material facts arose independently of the Agreement and the Disclosure, though these obligations were to an extent codified in the parties' contract.*fn6 As a result, the gist of the action doctrine does not bar the Stars' misrepresentation claims, and we will deny the Rosenthals' motion to dismiss Counts II and IV of the complaint.
C. Count III: Violation Of The UTPCPL
Under Count III of the complaint, the Stars aver that "[u]nder 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." Pls.' 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." Pls.' Resp. at 20.
Under 73 Pa. Cons. 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."*fn7 Section 201-3 provides in relevant part that "[u]nfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce as defined by subclauses (i) through (xxi) of clause (4) of section 2 of this act and regulations promulgated under section 3.1 of this act are hereby declared unlawful," and Section 201-9.2(a) establishes a private cause of action for:
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 any person 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., 66 F.3d 604, 618 (3d Cir. 1995), "prohibits plaintiffs from recovering in tort economic losses to which their entitlement flows only from a contract." This doctrine "gained momentum," id., in our Courts of Appeals's estimation, in East River S.S. Corp. v. Transamerica Delaval, Inc., 476 U.S. 858, 871 (1986), where the United States Supreme Court held in the admiralty products liability context that "a manufacturer in a commercial relationship has no duty under either a negligence or strict products-liability theory to prevent a product from injuring itself."
The doctrine received another infusion of energy from Werwinski v. Ford Motor Co., 286 F.3d 661 (3d Cir. 2002), in which our Court of Appeals concluded that (1) "the doctrine applies to transactions between manufacturers and ordinary consumers," id. at 674; (2) "the district court correctly applied the economic loss doctrine to appellants' fraudulent concealment claims," id. at 681; and (3) "the same policy justifications for applying the doctrine to appellants' common law intentional fraud claims support the doctrine's application to appellants' UTPCPL claims." Id. En route to these conclusions, Werwinski noted that "[a]lthough the Supreme Court of Pennsylvania has not ruled on the viability of the economic loss doctrine, an en banc panel of the Pennsylvania Superior Court adopted the doctrine largely as set forth in East River." Id. at 671 (citing REM Coal Co. v. Clark Equipment Co., 563 A.2d 128, 134 (Pa. Super. 1989)).
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*fn8 does not "flow[] only from a contract," Duquesne Light, 66 F.3d at 618, but rather from Pennsylvania's broader policies against intentional concealment and innocent misrepresentation of material facts respecting sales of real property, see Section II.B, supra, it nonetheless appears true that the Rosenthals' alleged violations of the UTPCPL "'did not cause harm to the plaintiffs distinct from those caused by the breach of contract,'" Werwinski, 286 F.3d at 678 (quoting Pub. Serv. Enter. Group, Inc. v. Phila. Elec. Co., 722 F. Supp. 184, 201 (D.N.J. 1989)), and that the "'loss of the benefit of a bargain is the plaintiff's sole loss.'" Id. at 680 (quoting Duquesne Light, 66 F.3d at 619).
Notwithstanding these formulations and the expansion of the doctrine in Werwinski, the above-cited cases nonetheless make clear that the doctrine is not meant to apply to transactions in real property. Thus, as the Supreme Court explained in East River, 476 U.S. at 871 (emphasis added), "a manufacturer . . . has no duty . . . to prevent a product from injuring itself," and suggested that the need for a remedy in tort is reduced when "the product has not met the customer's expectations." Id. at 872 (emphasis added). In REM Coal, 563 A.2d at 134 (emphasis added), the Pennsylvania Superior Court explained that the doctrine applied in actions "involving a product that malfunctions where the only resulting damage is to the product itself." And in Werwinski, 286 F.3d at 681 (emphasis added), which concerned a products liability class action, our Court of Appeals suggested that the economic loss doctrine was needed to avoid "exposing manufacturers to substantially greater liability." Critically, Werwinski prefaced its conclusion that the economic loss doctrine applies to the UTPCPL by noting that "the Pennsylvania UTPCPL . . . only applies to products purchased for 'personal, family or household purposes,'" id. (quoting 73 Pa. Cons. Stat. Ann. § 201-9.2(a)), apparently unmindful that in Gabriel, 534 A.2d at 492-93, the Pennsylvania Superior Court concluded that "sales of real property [are] protected by the UTPCPL."
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, 932 A.2d at 887-88 ("This appeal involves a civil action initiated by home purchasers against the sellers for fraudulent non-disclosure and/or concealment of water infiltration. . . . Buyers pursued claims of common-law fraud and violations of the Unfair Trade Practices and Consumer Protection Law, initially seeking compensatory damages under both theories of relief, in addition to treble damages and attorneys' fees under the UTPCPL.") (remanding for Common Pleas Court to consider awarding treble damages under the UTPCPL); Metz v. Quaker Highlands, Inc., 714 A.2d 447, 450 (Pa. Super. 1998) ("[A]ware of the needs of the buyers, the seller failed to disclose and concealed the short-fall of the property, refused to rectify the matter when the problem was discovered and caused suit to be instituted to resolve the case. In light of such outrageous conduct, to allow the rescission merely of the sales agreement without imposing a corresponding penalty for fraudulent behavior in consumer-type cases would do violence to the intent and purpose of the law (UTPCPL) enacted specifically by the Legislature to curb and discourage such future behavior."); Baker v. Cambridge Chase, Inc., 725 A.2d 757, 759, 766 (Pa. Super. 1999) ("This case involves a fraudulent residential real estate transaction. . . .
[T]he Bakers bring their fraud claim under the UTPCPL; they may, therefore, be entitled to treble damages and attorney's fees in addition to restitution, and they make demands for the same.").
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., 654 F. Supp. 2d 285, 294 (E.D. Pa. 2009) ("[T]his Court is bound by a Third Circuit decision where that court has predicted how the Pennsylvania Supreme Court will decide an issue."), Werwinski does not apply to transactions in real property. The economic loss doctrine therefore does not bar the Stars' claim under the UTPCPL and we will deny the Rosenthals' motion to dismiss this claim.
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." Pls.' 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,*fn9 and we will deny the Rosenthals' motion to dismiss Count V of the complaint.
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." Pls.' 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., 259 A.2d 443, 448 (Pa. 1969). But as Judge Robreno explained in Philadelphia Housing Authority v. CedarCrestone, Inc., 562 F. Supp. 2d 653, 656 (E.D. Pa. 2008),
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., 2011 WL 5374515, at
*6 (M.D. Pa. 2011) ("[C]laims for unjust enrichment can be pled in the
alternative to breach of contract claims."). Moreover, as the Superior
Court of Pennsylvania has explained, "[t]he general rule is that where
a purchaser has been harmed by a real estate broker's*fn10
misrepresentations, the purchaser has a choice of remedies.
The purchaser may elect to rescind the deed and to seek a return of
the purchase money, or the purchaser may elect to sue for damages."
Roberts, 531 A.2d at 1132.
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.
Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
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Two teenage sisters from Collinsville were identified today as the victims in a fatal crash on Interstate 64 Friday.
Jessica Elaine Uhl, 18, and her sister, Kelli Christine Uhl, 13, died after an Illinois State Police trooper -- cut off by another motorist while en route to an earlier accident -- crossed the I-64 median and slammed into the Uhls' car near Scott Air Force Base.
Both Uhls were pronounced dead at the scene of the accident, which injured three other people involved in the accident, according to the Illinois State Police.
Autopsies were performed on both Uhls, who lived with their mother, Kimberly Dorsey, at their Collinsville home, said Bob Shay, the St. Clair County chief deputy coroner.
Trooper Matt Mitchell, 29, was airlifted to Barnes-Jewish Hospital in St. Louis, where he was hospitalized for serious but non-life threatening injuries. By this afternoon, Mitchell's condition had been upgraded to good, according to a hospital spokeswoman.
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Lauren Moshi Hollis I'm A Mess Cashmere Pullover Sweater as seen on Cara Delevingne
Product Details
Got A Question? Email Us
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00 Behn Road Warren, VT 05674
Listed by Bill Elliott of Sugarbush Real Estate
Call Four Seasons Sotheby's International Realty Real Estate for more information.
Lot Size: 4.3 acres
Price/Acre: $19,767
Property Description
Convenient wooded lot with small pond, wastewater permit, ready to build with your zoning permit. Minutes to Warren Village or the ski areas. Just far enough off the pavement to be secluded and quiet.
- Property Type: Land
- Zoning: Ag/Res
- Acreage: 4.3
- Lot description: Rolling, Wooded
- State: VT
- Street: Behn Road
- Building Number:
- Development/Subdivision: 0
- Zip Code: 05674
- County: VT-Washington
- Town: Warren
- Area Description: Near Skiing
- Elementary School: Warren Elementary School
- Junior High: Harwood Union Middle/High
- High School:
- Water: On-Site Well Needed
- Sewer: On-Site Septic Needed, Septic Design Available
- Electric: At Street
- Services: Cable - Available, High Speed Intrnt -Avail, Other, Telephone Available
- Land Restrictions: Land Use Permit
Water Body
- Water Body Type: Pond
- Taxes: $2,121
The New England Real Estate Network provides Multiple Listing Services (MLS) in the States of New Hampshire, Vermont, Massachusetts and Maine.
Copyright© 2016 The New England Real Estate Network. All rights reserved. This information is deemed reliable but not guaranteed. The data relating to real estate displayed on this Site comes in part from the IDX Program of NEREN. The information being provided is for consumers personal, non-commercial use and may not be used for any purpose other than to identify prospective properties consumers may be interested in purchasing. Data last updated on 12/07/2016.


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The Barack Obama administration's major transparency initiatives get a lukewarm – at best – review from the Government Accountability Office in a new report.
The Sept. 23 GAO audit of the Electronic Government Fund may be especially timely because the House and a Senate committee recently proposed reduced funding for the account in the fiscal 2012 spending bills.
The GAO examined the $34 million e-government fund administered by the General Services Administration that supported 16 projects in fiscal 2010. The fund pays for high-profile initiatives including Data.gov, which has released hundreds of thousands of datasets publicly on the Web; Apps.gov, which offers mobile and cloud solutions to federal agencies; USASpending.gov, which tracks spending; and Challenge.gov, which is a Web platform for agencies to hold innovation competitions.
Related coverage:
House panel would restore a small portion of transparency funding
The GAO assessed four major programs of the fund — Data.gov, FedSpace, Citizen Services Dashboard and FedRamp — and concluded they had made "varying progress toward their goals."
Specifically, FedSpace, which was a knowledge-sharing network for federal employees operating as a pilot project, was terminated in May 2011 following Congress' reduction of funding for the e-government account to $8 million for fiscal 2011. The program also had not fully developed all metrics, the GAO said.
Likewise, the citizen services dashboard, while operating as a pilot, faced funding uncertainties and incomplete metrics, and it was canceled in May 2011 as well following the reduction of funding, the GAO said.
The FedRamp initiative to share strategies on cloud security was "in development" and its implementation had been delayed due to difficulties in obtaining all interagency agreements, as well as incomplete metrics, the GAO said.
Data.gov was singled out as being the only one of the four programs that was fully launched, and had made progress, the GAO concluded.
"The projects we reviewed had made varying progress toward their goals and had begun to define metrics to measure success," the GAO report said. "Additionally, the projects could potentially lead to benefits including cost savings and efficiency, customer service, transparency, and governmentwide collaboration and information sharing. However, defining performance metrics and aligning these with project goals would help ensure that managers and stakeholders can assess project results and provide credible evidence of progress, which is particularly important in a resource-constrained environment."
The GAO recommended that the GSA ensure that performance metrics are developed that align with project goals, and the GSA agreed with the recommendation.
Earlier this year, the House voted to consolidate the e-government fund into a $50 million account. The full distribution of funds under the consolidation were not clear, but a Sunlight Foundation official estimated the e-gov fund would receive $13 million.
On Sept. 15, the Senate Appropriations Committee voted to reduce the consolidated funding to $39 million, the Sunlight Foundation said. While the exact impact on the e-government fund was not known, the foundation estimated a negative impact on transparency initiatives overall if the Senate cuts are made law.
"Many programs will be terminated. Data quality will suffer. No fixes or improvements to current programs are likely," the foundation said in its blog on Sept. 16.
About the Author
Alice Lipowicz is a staff writer covering government 2.0, homeland security and other IT policies for Federal Computer Week.
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The president-elect has selected another retired Marine general for his cabinet -- John F. Kelly to head the Department of Homeland Security.
The Congressional Budget Office estimates that implementation of the Modernizing Government Technology Act will cost $9 billion over five years.
The software whiz behind Pixar's movies Rob Cook surprised even himself by coming out of a "failed retirement" to take a top technology job at the General Services Administration.
FCW profiles 30 women and men who are doing great things in federal IT -- and who are poised to be the leaders of tomorrow.
The intelligence agency is shifting its collection of declassified documents from an offline National Archives workstation to the public-facing CIA.gov website.
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text:
The Challenge of Macular Degeneration
Researchers have begun to identify the causes of this dreaded eye disease that targets the elderly
Researchers have begun to identify the causes of this dreaded eye disease that targets the elderly
Only part of our galaxy . is fit for advanced life
Could the Internet crash? This summer's Code Red attacks could foreshadow destructive cyberwarfare between hacker groups or between governments
Molecular guided missiles called monoclonal antibodies were poised to shoot down cancer and a host of other diseases--until they crashed and burned. Now a new generation is soaring to market
The Internet has hit the road. Drivers can now access anything from custom traffic reports to spoken e-mail messages to video games. But is it safe?
A major hurricane could swamp New Orleans under 20 feet of water, killing thousands. Human activities along the Mississippi River have dramatically increased the risk, and now only massive reengineering of southeastern Louisiana can save the city


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Category page
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"An approximation for the average/mean radius of an ellipse's circumference, , is the elliptical...Ellipsoidal quadratic mean radius
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Discussion in 'iPhone' started by thechungster, May 14, 2008.
why is it that the iPhone's speaker is only one sided?
Because Apple designed it that way.....?
bit gay, coz on apple's website, they point both sides are the speakers, but thats incorrect
cuz apple is cheap
One side is the mic, one side is the speaker.
Separate names with a comma.


text:
Spilled candle wax can be scraped up by using a plastic coated, slick business card.
By pattysss from Overland Park, KS
Old credit card or gift card works as well.
A much more effective way is to place a paper towel over the wax and run an iron over it. It melts the wax, which is absorbed by the paper towel. Scraping will often leave some residue, though using a card would minimize that.
Add your voice! Click below to comment. ThriftyFun is powered by your wisdom!


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Create an Account - Increase your productivity, customize your experience, and engage in information you care about.
Access easily searchable meeting agendas and minutes for various boards, commissions, and committees.
Learn about the Board of Supervisors and find out who they are, what they do and when they meet.
Access information about all of the County Board or Commissions such as membership, agendas, meeting dates and more.
View a listing of all of the departments that make up the inter-workings of Caroline County, Virginia.
Financial Information for Caroline County, Virginia
Topics of Interest in Caroline County, Virginia
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Maps (Magnam Europae)
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This page lists all national, regional, and international maps used in the Magnam Europae timeline.
World Maps
Regional Maps
Country and Local Maps
Country locator maps
Reference maps
War maps
See Also


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Icebreaker Women's Oasis LS Hood Haf Zip Features:
The highly technical Women's Oasis Long Sleeve Hood comes from Icebreaker's Bodyfit collection and is made from lightweight, 200gm merino fabric for hiking, climbing and snow sports. This baselayer top features a half zip for easy temperature regulation, a shaped hood for wearing under a helmet and offset seams to eliminate pack rub. Icebreaker Merino wool is warm, breathable and odour resistant, making the Oasis LS Half Zip Hood the perfect baselayer for active use in cold conditions.


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News : 36 More Aberdeen Call Centre Workers to be Recruited by BT
Aberdeen, UK, March 9, 2016 -- BT is to recruit 36 more people in Aberdeen, as part of plans to employ 1,000 new contact centre staff across the UK.
The new recruits will work in mainly sales and customer service roles with recruiters looking for applicants from across Aberdeen and the North-east. They'll be based in BT's Aberdeen HQ, New Telecom House, in South College Street.
Libby Barr, managing director of customer care at BT Consumer, said: "This latest recruitment is part of our commitment to provide the best possible service for our customers. It is a great opportunity for people to develop a career with one of the UK's leading companies at a particularly exciting time.
Successful applicants will be answering calls and talking to customers from across the UK, providing them with information on the products and packages which best suit their needs.
Details of the new roles and how to apply can be found online. The interview process will include online tests, assessment centres and interviews so the best possible candidates can be matched to the roles.
BT's Consumer division has already filled an extra 1,000 roles in its UK contact centres to enable it to service more of its residential customers in the UK and is in the process of recruiting a further 1,000 before April 2017.
Brendan Dick, BT Scotland director, said: "BT already supports more than 450 jobs in Aberdeen through direct employment, its spending with contractors and the spending of employees. It's great news that we can add to that with today's announcement and increase BT's presence in the city.
"Across Scotland, we're investing hundreds of millions of pounds in major initiatives, such as the roll-out of high-speed fibre broadband, which is transforming online opportunities for households and businesses up and down the country."
BT Consumer has committed to improve customer service and is spending over two years to boost performance, in addition to the money it spends each year on service.
Every advisor will each receive an extra 100 hours of training. The company is also investing in new simpler systems for its advisors, improving service on bt.com and has launched the BT App that allows customers to do things like check their bill or track the progress of their engineer if they have booked a home appointment.
Posted by Veronica Silva Cusi, news correspondent
Source: http://www.aberdeenbusinessnews.co.uk
Related Editorial
More Editorial From BT
About BT:
BT is provider of communications services and solutions for everybody in the UK and for corporate customers in the rest of Europe, with global reach through partnerships. BT provides services for all UK customers, network services and solutions for communication companies, worldwide business solutions, internet services, and advanced research and technology.
Published: Friday, March 11, 2016


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This is just a quick demonstration on how to press and play the C#m (C sharp minor) bar chord. This chord is also known as Dbm (D flat minor).
How to press and play C#m (C sharp minor) or Dbm (D flat minor) bar chord
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Hello Guest! You are browsing the forums as a guest; you will have limited permissions as a guest so we advise registering to enjoy the forums fully. Remember: we are a Christian ONLY site - any user who is not Christian will not be approved. Blessings, Christian Forum Site StaffDismiss Notice
I shall see Him, but not now. I shall behold Him, but not yet....
Discussion in 'Bible Study' started by Wheelz, Apr 12, 2015.


text:
At UFC 197 media day, Jon Jones discussed if he's bummed not to fight Daniel Cormier, if his beef with Rashad Evans is over, Ovince Saint Preux, the Conor McGregor situation, and much more. Subscrib watch video >>
Cain Velasquez and Travis Browne at UFC 200; Jon Jones training for Daniel Cormier At UFC 197; Junior Dos Santos training for Ben Rothwell; Thiago Silva working on striking, Daniel Cormier training f watch video >>
Jon Jones goes into why he doesn't want Big John McCarthy reffing his fight against Daniel Cormier at UFC 200. He went so far as to say he'd rather have anyone other than McCarthy referee his fights watch video >>
Cormier and Jones rematch at UFC 200 on July 9th in Las Vegas. watch video >>
Daniel Cormier rematches Jon Jones at UFC 200 on July 9th. In their first fight at UFC 182, Jones outstruck Cormier 92 to 58 in significant strikes. But Cormier doesn't feel Jones has punching power watch video >>
Rashad Evans and Brian Stann break down the upcoming rematch between Jon Jones and Daniel Cormier at UFC 200 in Las Vegas. watch video >>
UFC Light Heavyweight Champion Daniel Cormier and former UFC Heavyweight Champ Cain Velazquez discussed preparing for UFC 200. AXS TV is Your Home for MMA every Friday Night! Find AXS TV HERE: http: watch video >>
Forrest Griffin and Matt Parrino preview the massive fights at UFC 200 including Daniel Cormier vs Jon Jones 2, Brock Lesnar vs Mark Hunt, Jose Aldo vs Frankie Edgar, Miesha Tate vs Amanda Nunes and watch video >>
It's safe to say Jon Jones is feeling very confident ahead of his fight with Daniel Cormier at UFC 200. Hear the best from the UFC 200 press conference. @metropcs #closerthanever Watch the latest UF watch video >>
UFC light heavyweight champion Daniel Cormier discusses his upcoming fight against Jon Jones at UFC 200. watch video >>


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Withstood THE GREAT FLOOD 2016! Absolutely no water!! This gorgeous estate sits on over 3 acres of land, amidst the tranquility of two fully stocked ponds. 5 bedrooms, 4.5 baths, gourmet kitchen with a large breakfast island that seats 5 and has its own sink! Giant washroom with ample cabinets, counter space, wash sink, deep freezer space and a window that overlooks the enormous back yard. Marbled floors in the grand foyer to include a dazzling chandelier and front stairs. This home also has a trophy room that can be used as a movie / theater room, library or as an additional office. The King and Queen of this mansion, will enjoy the over-sized master bedroom which includes a sitting area and cozy fireplace. The walk-around closet in the master bathroom has built-in shelving and drawers for storage. Exterior security cameras installed. All appliances (refrigerator, range stove, dishwasher, and microwave) are 2 years old.
MLS Data Courtesy of Gulf South Real Estate Information Network. Copyright 2016, New Orleans Metropolitan Association of REALTORS®, Inc. All rights reserved. Information deemed reliable, but not verified or guaranteed. Users are responsible for checking the accuracy, completeness, currency, and status of all information. Neither the New Orleans Metropolitan Association of REALTORS®, Inc. nor the Gulf South Real Estate Information Network, Inc. makes any representation, guarantees, or warranties as to the accuracy, completeness, currency, or suitability of the information provided. They specifically disclaim any and all liability for all claims or damages that may result from providing information to be used on the web site, or the information which it contains, including any web sites maintained by third parties, which may be linked to this web site. By using this site, you signify your agreement with and acceptance of these terms and conditions. If you do not accept this policy, you may not use this site in any way. Your continued use of this site, and/or its affiliate' sites, following the posting of changes to these terms will mean you accept those changes, regardless of whether you are provided with additional notice of such changes.
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Is McCarthy Ford and Mazda Pretoria East. incorrect or missing key business information? Update your Hotfrog listing today.
Contact details
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Hotfrog SouthAfrica provides information regarding McCarthy Ford and Mazda Pretoria East. in Pretoria Gauteng. McCarthy Ford and Mazda Pretoria East. is located at 1 Ettienne Rd, Cnr Hans Strydom And Lynnwood Rd, Pretoria Gauteng 0001 and provides Automotive services. Contact them on 012 809 6664 or by visiting them on their website http://www.mccarthyford.co.za/.
Opening hours
Mon-Fri 7:00-17:30; Sat 8:00-12:00
Is McCarthy Ford and Mazda Pretoria East. in 1 Ettienne Rd, Cnr Hans Strydom And Lynnwood Rd, Pretoria Gauteng 0001 your business? Claim your listing and attract more leads by adding more content, photos and other business details.
We have more Automotive services in Pretoria Gauteng available on Hotfrog SouthAfrica. You can update your search for Pretoria Automotive by location, keyword or service options.
74 Prinsloo Street Pretoria Gauteng 0002
Unit 11, Jacqueline Drive Pretoria Gauteng 0042
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Wanted technical writer for VLSI DFT
This project received 8 bids from talented freelancers with an average bid price of ₹64132 INR.Get free quotes for a project like this
Project Budget₹37500 - ₹75000 INR
Total Bids8
Project Description
Wanted technical writers who has knowledge in VLSI semiconductor DFT domain .
Main requirement is, given the lead, guidance and the basic outline of the concepts to be followed in book , the writer should be able to explore, formulate and ready the content on his own with practical examples, for my further review & correction, since for me time is a strict constraint .
Design For Testability
A Practical Approach
[url removed, login to view]
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[url removed, login to view] Built-In Self-Test
[url removed, login to view] Testing and Built-In Self-Test
11. Core-Based Testing
12. Test mode timing closure
13. High Speed IO Testing
14. Analog DFT
15. Chip & Wafer level Testing
Skills Required
Browse Related Skills
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Crusade: Knights War Gameplay Tips and Strategies
- App name: Crusade: Knights War
- Developer: iKnights
- Genre: Role Playing
- Release: Nov 28, 2012
Let's play Crusade: Knights War on iOS. In this part of the walkthrough, you will learn more tips and tricks while playing the Crusade: Knights War game on the iPhone.
Gameplay Walkthrough
This page contains Crusade: Knights War video walkthroughs for iOS (iPhone/iPad) called "- iphone video" and has been uploaded on Admin official channel at Dec 12, 2012.
Still need help with this level? Here you can ask questions and discuss with other Crusade: Knights War users.
Hit like if this helped you!
Stuck on some levels in Crusade: Knights War? This walkthrough can help you finish the game.


text: Submit Your Website for Kentico Site of the Year 2016 Jana Repáková — Dec 6, 2016 — Featured Article site of the year It's that time again! In keeping with our tradition, we are announcing the launch of Kentico Site of the Year 2016 submissions. Have you developed an extraordinary Kentico website? Then don't keep it from the world! Get the recognition for your brilliant work you deserve by submitting it for Kentico Site of the Year 2016 now.


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SSP73 - Safety Spectacles - Anti-Glare Lens
Supplier: Jack Sealey Ltd | Brand: SEALEY | Product: SSP73
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"This statue is along the..." Top 5 Page for this destination Escondido Off The Beaten Path Tip by brdwtchr
Escondido Off The Beaten Path: 2 reviews and 2 photos
This statue is along the nature trail at the Battlefield Park. Hiking in the 'scrub' here I saw some lizzards and birds. A few pictures of them are in my travelogue.
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Aster Seeds (Dwarf) - Colour Carpet White Callistephus dwarf Colour Carpet
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Product Description:
Aster Seeds - Colour Carpet White
This lovely dwarf aster is the perfect compliment to taller varieties. Measuring up at a diminutive, yet versatile 8 inches, this crisp white bloom is perfectly at home in any style of garden.
- Fast Facts
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Name: Aster Colour Carpet White Botanical Name: Callistephus dwarf Colour Carpet Life Cycle: Annual Color: White Bloom Season: Summer/Fall Height: Up to 8" Light Requirement: Full Sun Sowing Method: Direct Sow or Indoor Sow Hardiness Zones: 3-9 Ships: Year Around Amount Recommended Coverage Packet Up to 20 Sq. Ft Ounce Package Up to 75 Sq. Ft 1/4 Pound Package Up to 300 Sq. Ft 1 Pound Sack Up to 1,200 Sq. Ft 5 Pound Sack Up to 6,000 Sq. Ft
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