dissenting:
I respectfully dissent. Fraud, or the intent to defraud is never presumed, and must be proved by evidence that is clear, precise and convincing. Snell v. Commonwealth, State Examining Board, 490 Pa. 277, 416 A.2d 468 (1980). The appellants argue that the evidence demonstrates knowledge of the termite condition and intent to deceive. Yet, there is no indication by the evidence presented that the appellants did indeed establish the requisite scienter necessary to prove fraudulent misrepresentation on the part of the appellee.
The expert testimony of an exterminator who was hired by the appellants, revealed that only a specially trained person could detect the presence of termites in a house. A real estate appraiser, upon seeing the holes, was unable to determine that they were caused by termites. Even the appellants, who had dealt extensively in the real estate field, had no reason to suspect the presence of termites in the house. Therefore, to expect the appellee to have such knowledge would be beyond the boundaries of reasonableness as it would hold the appellee liable for knowledge she could not have.
The appellee explained upon inquiry that the floor damage had been caused by leakage from a garbage disposal, water leakage from a dishwasher and burns from faulty wiring. These explanations are plausible, they certainly seemed believable to the appellants and an independant real estate appraiser, and there is no evidence which supports the contention that the appellee did not believe these explanations to be correct.
Even if a misrepresentation is innocent, a material misrepresentation could be found where one is bound to ascertain the truth before making the representation. Glanski v. *354Ervine, supra. In the case of Highmont Music Corporation v. J. M. Hoffmann Company, supra., the plaintiff stated, prior to leasing the building, that the storeroom must have a strong floor and the tenant had a limited amount of money to spend for any necessary improvements. The landlord represented that the floors were strong, that they would support any weight, and that the building was in excellant condition and would not need much money to improve it so that it could be used. The tenant subsequently discovered that the floors of the building were not capable of supporting any kind of business permitted under the City Code and that at some places the floor was not sufficiently safe even for persons to stand upon it. The Court held that the landlord had knowledge of these conditions and the tenant did not. The representation of conditions, which required no expertise to discover, were of material facts, were fraudulent, and were justifiably relied upon by the tenants.
In the present case, there is no evidence that the appellee ever knew the premises were infested with termites. The appellants never made any inquires as to the presence of termites on the property and testified that the various holes found on the premises were “no big deal” and really did not matter. Presumably, had the appellants asked if there were termites in the house or had stated that the deal was off if there were termites on the premises, then the appellee would have been bound to have the premises inspected to ascertain whether or not there was a termite problem. However, this is not the case.
In termite cases, for there to be fraudulent misrepresentation, a statement or representation must be made with the intention to deceive another, or there must be a failure to disclose a latent defect which was known to the seller, or there must be an intentional hiding of the defect by covering over the damage so that the purchaser cannot discover it. See: Glanski v. Ervine, supra; Shane v. Hoffmann, supra; National Building Leasing, Inc. v. Byler, 252 Pa.Super. 370, 381 A.2d 963 (1977). Any of the above are lacking in this case. To hold otherwise would bring about the total abandonment of the doctrine of Caveat Emptor and create *355absolute liability in all cases of after-discovered termite damage.
The large number of termite exterminating companies in Pennsylvania is an indication of the high incidence of termite infestation in the Commonwealth. A buyer can protect himself by demanding from the seller a certificate from a reputable exterminating company that the premises are free from infestation. Such a provision is common today in agreements of sale.
Although the damage to the property was readily observable, none of the parties apparently even suspected that termites were on the property. To say that these circumstances create a duty to know that which cannot be reasonably determined, would be to say that a homeowner is required to know everything about his home and to say nothing when asked. Such a burden cannot be placed on the appellee in this case.
I respectfully dissent.