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Bortz v. Noon

Pennsylvania Supreme Court
729 A.2d 555 (1999)


In July 1986, Albert Bortz (plaintiff) and his wife entered into an agreement to buy the home of Patrick and Virginia Noon (defendants). The Noons used real estate agent Renee Valent to represent them in the sale. Valent worked for Coldwell Banker (defendant). The mortgage that the Bortzes tried to obtain was contingent on the home’s septic system passing a dye test. The septic system failed the dye test, forcing the parties to put the closing on hold. The Noons hired a contractor to repair the septic system. In September, a representative from the title company involved with the sale told Valent that the septic system had passed the dye test. Valent told the Bortzes this information, and the parties closed at the end of the month. At the closing, a representative from the title company stated that the dye test on the septic system had passed. None of the parties to the sale saw or asked to see contractor’s report. After purchasing the home, the Bortzes received a call from the title company telling them that it had forgotten to perform the dye test on the septic system. The title company ordered a dye test, and the system failed the test. The septic system was irreparable, and the Bortzes were forced to connect to the public sewer system at a cost of $15,000. Albert Bortz sued Coldwell Banker, the Noons, and the title company for damages and seeking to rescind the sale. The Noons joined the contractor. Bortz argued that the defendants made affirmative misstatements relating to his home’s septic system. The trial court found in favor of Bortz, holding that Coldwell Banker, through Valent, its agent, had made material representations. The trial court did not rescind the sale, but awarded Bortz damages of $15,300. Additionally, it held that neither the title company nor the contractor could be liable for misrepresentation because they did not owe a duty of care to Bortz. Coldwell Banker appealed. On appeal, the court held that Coldwell Banker, the contractor, and the title company all had a duty to verify that the septic system had passed the dye test, making all three potentially liable for misrepresentation. The supreme court granted allocator regarding the issue of whether Coldwell Banker’s agent had a duty to ascertain whether the septic tank had actually passed the dye test.

Rule of Law


Holding and Reasoning (Newman, J.)

Dissent (Saylor, J.)

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