Court hears murder-suicide case

The Supreme Court of Pennsylvania heard oral arguments in Milliken v. Jacono on Tuesday, Nov. 19, 2013. Before a Harrisburg gallery, packed to standing room only, the court’s seven Justices questioned the parties’ attorneys for nearly an hour as to whether Pennsylvania’s common law requires home sellers and their agents to disclose a past murder/suicide on the property.

The case involves a 2006 murder/suicide that took place in the master bedroom of a home in suburban Philadelphia. The home was then sold at auction for $450,000 to Joseph and Kathleen Jacono, who learned of the murder/suicide from another attendee at the auction. After repairs and maintenance to the property, they sold it nine months later to Janet Milliken for $610,000, who was moving to Pennsylvania from California with her two children. At issue is that the murder/suicide was not disclosed to Milliken, who found out from a neighbor several weeks later.

In 2012, the Superior Court ruled that “psychological defects” such as murder/suicide are not “material defects” under the Seller Disclosure Law and therefore sellers are not required to disclose such events. In July of this year, however, the Supreme Court granted further review to determine whether the common law still requires such disclosure to avoid fraud or misrepresentation.

During oral arguments, the Justices grilled plaintiff’s counsel as to where to draw the line between events that must be disclosed and those that do not. Justice Todd stopped counsel almost immediately, stating that there was no concealment in this case. She added that many stigma may decrease the value of a property without constituting material defects. Justice Stevens, sitting with the court in Harrisburg for the first time, questioned if various diseases must be disclosed to buyers. Justice Baer suggested that material defects should be limited only to problems with the property and pressed counsel to suggest a rule which extends beyond the facts of this particular case, a suggestion reaffirmed by a number of the Justices.

Plaintiff’s counsel described Milliken as the “perfect mark” coming from California without the knowledge of a local buyer. Chief Justice Castille, however, said that the murder/suicide wasn’t hidden information and asked whether the “perfect mark” had looked up the home on Google. (No.) Justice Castille then inquired into slippery slope implications of requiring such disclosure and asked whether a murder a hundred years ago requires disclosure. (Again, no.) Counsel stated that cases must be decided by courts on a case-by-case basis according to what a “reasonable buyer” would want disclosed.

The listing agents’ attorney reaffirmed that the Superior Court had already determined that disclosure of murder/suicide is not required under the Seller Disclosure Law and that the statute was not at issue currently. He went on to argue that the sellers could not have committed fraud if they had followed the mandates of the Seller Disclosure Law. The Justices, however, did not let the listing agents’ attorney off easily. Justice McCaffery said that he wouldn’t want his family to purchase a home where there had been a mass murder. Others picked up on the theme asking whether some events are so heinous that they must be disclosed to potential buyers. Counsel for the listing agents responded that under the modern view of caveat emptor, sellers and their agents only have a duty only to reveal latent or hidden defects with the property that create a dangerous condition. Here the agents made no affirmative representations, and the mere history of the event created no present danger. Moreover, if Milliken had wanted to know about such history, she could have asked – but she did not.

The Pennsylvania Association of Realtors® has submitted an amicus curiae brief supporting the real estate agents involved in this matter and arguing that disclosure of a murder/suicide should not be required under the common law, absent the direct inquiry of a buyer. A decision in the case is expected in the coming months.