Freaky Friday: Murders are not Defects – The Case of Milliken v. Jacono, et. al.

Welcome to yet another Freaky Friday here on Lawyers & Liquor, where we explore the creepy, macabre, paranormal, or just plain strange shadows of the justice system.  I’m you ghost host, the BOOzy Barrister, and today we’re going to deal with something more frightening than any possible ghostie or ghoulie out there.  That’s right, today we’re going to talk about the required disclosures that a person must give when they’re trying to sell you a house, and what they may not have to tell you at all under the current law.  Specifically, we’re going to talk about the Pennsylvania case of Milliken v. Jacono, and how the highest court of the Keystone State has ruled that a murder in your new starter home (and the subsequent haunting that followed) isn’t something you need to be told about.

Fucking comforting, isn’t it?

Home Sweet Homicide – The Story

Konstantinos and Georgia Koumboulis had bought the house at 12 Pickering Trail in the unincorporated township of Thornton, Pennsylvania in 1993, right after it was built.  Thornton, a bedroom community of Philadelphia located in Delaware County, was certainly quieter than the hustle and bustle of the city, and with the community springing up around the Koumboulis family it was the perfect place for this restaurant owner and his wife to settle in and raise a family.  And a family they did raise over the next 13 years: two sons, a daughter, nine cats, and three dogs – a huge Greek Orthodox clan that, though neighbors said they kept to themselves, always seemed friendly enough.

That is until Konstantinos and Georgia began to suffer marital issues in 2005 and Konstantinos decided to go a little overboard to win his wife back.  That’s right, chocolates, flowers, love poems, all those things we do when we realize that maybe we’ve neglected the ones we love for too long.

Just kidding.  He murdered his wife in 2006. 

Shot her multiple times in the bedroom as she was getting dressed one morning, then sat on the bed and turned the gun on himself. Luckily, the police were able to show up almost immediately, considering their 11 year old son walked in shortly after to discover the site of both parents dead by the hands of the father. Police, rightfully, ruled the whole thing as a murder suicide, and, you know, because no fucking story is complete without becoming more horrible, the children were reportedly bundled off to live in a fucking orphanage because there were no relatives that could take them.  Because this whole story up to this point is a Dickensian nightmare.  Oh, and if the murder-suicide, son finding the bodies, and children being sent to an orphanage isn’t enough, remember the nine cats and three dogs?  Yeah, through some fuck up they were reportedly left in the house for several days before being removed. Neighbors reported hearing the animals howling mournfully throughout the night in the empty and blood-stained halls of the home.

Blessed Are The Profitable.

This is some fucking Amityville shit right here, folks.  And it’s about to get more so because, in case you may not recall, in 2006 property was at a fucking premium, so there was absolutely no goddamn way  little things like a tragic murder suicide, blood on the carpet, and brains seeping into the drywall were going to keep a 4 bedroom, 2.5  bath house off the fucking market.  I mean, just go look at this shit.  That, in the paraphrased words of Bubbles, is a nice fucking kitty right there, boys.

Naturally, then, the house went up for sale in an estate auction because, you know, it was a house linked to a murder suicide in a small community later in 2006, with the shock still new, by Kathleen and Joseph Jacono for $450,000.  The Jaconos, never ones to be turned off by the minor fact that a little death stalked the halls of the home, proceeded to consult with realtors, attorneys, and ethics commissions to determine the limits of their legal liability when it came to sticking the place back on the market.  The resounding determination of all of those folks was that, while they were required to disclose material defects related to the house, and, in Pennsylvania, to provide seller’s disclosures that identified such defects, a murder-suicide, kids getting sent to an orphanage, and animals howling mournfully in the night did not qualify as a “material defect” within the meaning of the law.

However, at least one of the many consultants suggested that the Jaconos disclose the existence of a murder-suicide in the same place a new family looking for a fresh start would lay their weary heads.  “Just get it out there,” stated one of the real estate agents consulting with the buyers.  At which point the Jaconos, I imagine backed by a particularly ruthless attorney who had intensively studied the minutia of real estate disclosure law, promptly responded “LOL, no!” and put the house on the market (after, thankfully, extensive renovations and updating that probably removed the trickles of grey matter from the ceiling) for an asking price of around $610 ,000.

All of this, by the way, occurred within a year of the initial murder-suicide, one that was the talk of the sleepy little unincorporated township of Thornton and the surrounding area.  It wasn’t like this shit happened back in the 1700’s or shit.  This was 2006-2007.  The internet was a fucking thing, and folks still read newspapers on a semi-regular basis.  The information and news regarding the fact Konstantinos had won the award for “World’s Worst Spouse and Father” was well known in the area.  So it should come as no surprise that when an agreement of sale was reached relating to the property, the prospective buyer was from the other side of the goddamn country and not really familiar with the small town murders that may haunt the home’s halls.

Enter the Witless Purchaser

Janet Milliken was a fairly recent widow with two children.  Her husband, Frank, died in the spring of 2006, just a few months after Konstantinos went on a matrimonial murder spree in the bedroom of the home on 12 Pickering Trail. Seeking to be closer to family, she reached out from her home in California to look for property on the east coast, stumbling across, then coming to view, the murder house from hell in Thornton.  She, to say the least, liked what she saw at that point, deciding to buy the place without so much as a Google search to reveal the hidden history.  The Jaconos, who, remember, had been told they had absolutely no legal duty to disclose deaths in the home, obviously didn’t inform her of these little facts, and happily handed over the keys once Milliken ponied up the $610,000.00 asked as the purchase price.

And then Milliken and her kids moved in and every lived happily ever after!  Until a year later in 2008 when her neighbor let it slip that the new owner’s bedroom was located in a murder scene.  But even before that, as Milliken would later testify in her deposition, her family had begun hearing noises, feeling disturbing entities, and seeing shadows throughout the home.  Note, this shit is all in a deposition, which is a document that can be (and in this case was) filed with the court to support a legal determination. That’s right.  Somewhere in the archives of the Delaware County Court of Common Pleas, there’s a motion which attached testimony of a haunting to it for evidence.  Weird world, man, weird world.

And, so that we could all be certain to call this whole situation Amityville Light, Milliken even called in an exorcist to play the tubular bells and bless the house in an attempt to drive away the evil spirits that apparently haunted the place.  And, you know, when that didn’t exactly resolve things she turned to a darker, more chaotic power to assist with her spectral residents: lawyers.

Talk about fighting fire with fire.

The Lawsuit 

Milliken sued the spirit out of the Jaconos, alleging that they were under an affirmative obligation to disclose the murderous history of the house to any potential buyers, that they had failed to do so, and that what Milliken had therefore been left with was a stigmatized property.  That is, a home with such a history of events that the very fact it’s that house is enough to decrease the value of the place and make it hard to offload.  According to Milliken, the murder-suicide that occurred was enough that the Jacono’s had failed to disclose a material defect, and therefore should be held responsible in court and…well…it’s not the worst argument in the world.

Alright, you may remember not too long ago I talked about the case of the Westfield Watcher, in which I summarized the law of real estate disclosures as follows:

[S]ellers of real estate are only required to disclose material conditions that affect the value of the home to the buyers.  Even then, they’re limited to being required to disclose, at common law, only those material defects that they actually know about or, by virtue of their ownership should have known about, and are not required to disclose defects they don’t know about that could have been discovered by the buyer doing some due diligence. . . . [E]ach state will also determine what is and is not a material condition that rises to the level of a seller having to disclose the information if they have it but aren’t asked about it. 

In some states, like California for instance, a death in the house within the last three years is a material condition and requires that both the death and the cause of death be disclosed.  In others, it isn’t.  So you can see that each state, over time, has developed their own law, both court made and statutory, as to what a material condition is.

So, California, where Milliken was from, had a law that required all sellers to disclose any death in a house that occurred within the three years preceding the sale, specifically stating that they were a material condition that potential buyers of residential homes were entitled to know about.  But, in case the 2016 election taught you nothing, Pennsylvania ain’t California, and Pennsylvania has never held that deaths on the premises of a house are material information that need to be disclosed to the public.  In fact, in Pennsylvania, there’s already a law that states what material conditions must be disclosed and actually provides that no sale of residential real estate is final until the disclosures are provided in writing.  This law, found at 68 Pa. C.S. 7303-7304, sets for a minimum of 16 required disclosures that must be made because they are definitely material defects.  Death in the house isn’t one of those defects, unfortunately for Milliken.

See, the form that is designed for these disclosures under the law, found at 49 Pa. Code 35.335a, actually has what appears to be a catch-all provision in addition to the 16 specifically enumerated “definitely material conditions” that it  states, which reads as follows:

Are you aware of any material defects to the property, dwelling or fixtures which are not disclosed elsewhere on this form?

A material defect is a problem with the property or any portion of it that would have a significant adverse impact on the value of the residential real property or that involves an unreasonable risk to people on the land.

In Pennsylvania, Sellers Have A Duty to Disclose

Here’s the thing you need to understand about Pennsylvania law to really understand Milliken’s theory of the case: in real estate transactions, there are situations where a seller is required to disclose shit without being asked and then there are situations where you actually have to ask the question before anyone’s required to answer you.  This is the difference between an affirmative duty to disclose and a conditional duty to disclose.  An “affirmative duty to disclose” is one that exists no matter whether someone asks you the right question or not, and in Pennsylvania would include shit like “This place has well water, and the well is contaminated.”  A conditional duty to disclose, though, means that unless the person asks what contaminated the well, the seller arguably wouldn’t have to inform them it’s the small pile of bodies at the bottom of it from Sam the Serial Killer’s tenancy in the residence. 

In other words, Pennsylvania is willing to say “only things that are material to the nature of the property itself, and which would reasonably be material to any buyer as they always affect the usability of the property and its value, are going to be treated as material defects.”  Because, see, the law cannot be written in such a way that it covers every possible situation.  For instance, there’s plenty of shit that I don’t like that would turn me off of buying a property, but everyone else would be perfectly fine with.  The test for what is and isn’t a material defect, and therefore subject to an affirmative duty to disclose, is an objective one, looking at what matters to society as a whole, and not a  subjective one that looks at what matters to the specific potential purchaser.

And, you know, this makes a certain amount of sense because if something isn’t mentioned on the form documents used for a disclosure, and it means that much to the purchaser, they should specifically ask about that thing. That’s sort of where the law is hanging its hat: “If you cared so much, why didn’t you say anything about it?”  And sure, the seller can just lie to you about that shit but that’s called fraud, and it’ll get you the same fucking relief as a failure to disclose in general would.

However, despite that, this didn’t mean that Milliken was an idiot to bring the suit.  The language in the disclosure code, according to Milliken, was vague enough that it could possibly be read to encompass a situation such as this: where the house has a stigma that will never leave it, and that stigma has a direct impact on the value of the house not just to the current owner but to any potential future buyer.  In short, it was the position of Milliken that the law had written in a catch-all provision, and that, in this case at least, the material nature of a husband murdering his wife and blowing his brains out in the bedroom was so blatant that the Jaconos must have known it would affect the home value and matter to any potential buyer.  Therefore, according to the Milliken theory, the Jaconos were in the wrong not just for failing to disclose, but for actively refusing to tell people about the murder/suicide double header unless they specifically were asked about it.

Again, Pennsylvania Ain’t California.

Believe it or not, this ended up winding its way all the way up to the Supreme Court of Pennsylvania in 2013, and was argued hotly between the two sides.  After hearing the argument, the opinion was finally issued by [bragging point] a justice that I knew and it came out…about as you’d expect it.

Justice Eakin, writing for the court, determined that while a murder/suicide in a home is certainly disturbing, and the effect of such a thing is not only visceral but financial, it did not warrant a material defect in the nature of the property.  The reasoning applied was pretty good:  1) the law is clearly concerned with structural defects and not psychological trauma; 2) if the law was to be concerned with the psychological impact of these events where does one draw the line for the disclosure?  Is it with every death or just particularly violent ones?  What about other crimes that don’t result in death but can be upsetting?; and 3) if someone is going to make psychological trauma from a stigmatized property a material defect, it needs to be the legislature.  By the way, that last one is the judicial punt of the the appellate world.  “Not our fucking problem, call your Representative! Wheeee!”

Plus, The Times Are A-Changing.

Further, as the court points out it wasn’t like the murder/suicide was a secret.  It was a relatively well known event at the time and everyone in 2006 and 2007 had the fucking internet already, it wasn’t like this was some hidden thing that nobody would ever locate it.  See, while a seller has a duty to disclose latent defects that they know about, being the ones that aren’t obvious, the seller’s duty is lessened to abolished under Pennsylvania law when the defect is patent, or so fucking obvious you can’t miss it.  It’s the difference between having to tell someone the roof leaks when it rains versus someone noticing there is no goddamn roof on the building.  The Pennsylvania court, then, determined that because the murder was well-publicized any defect that may exist was patent and therefore not required to be disclosed.

Which, if you are a long time reader, you may realize is a bit of a shift from the logic espoused in Stambovsky v. Ackley, the infamous “haunted house” case.  While you can read the article I did way back in one of the first Freaky Friday’s, the summary of that case is as follows: guy buys house, house was known locally and in Reader’s Digest as being haunted, guy finds out after buying it, court undoes the sale because the guy could not have known without searching newspaper archives.  In Stambovsky the determination was that, since a buyer couldn’t readily know about a haunting that had been in newspapers and such, it was a latent defect.  Accordingly, the seller should have disclosed it.  Which is similar, but not the same, as the situation in Milliken for one reason:

Stambovsky was related to a 1989 purchase, before the Internet, Google, and Yahoo were things that existed in every home.  Milliken was a 2007 purchase, when the ease of locating all of the necessary information was at the fingertips of the buyer.  In other words, what was a latent defect in 1989 (a reputation that had been advertised in newspapers and national publications) because of the hardship of going through the actual physical archives of those publications was, by 2006, a patent defect because it was easily searchable.

Neat, huh?

Closing Statements

I guess the question is…what happened to the house?

Well.  Nothing.  According to Trulia, the last sale of 12 Pickering Trail was in 2007 still, with no subsequent sales.  So Milliken presumably still lives in the home.  The Jaconos kept their money.  The parties, for all intents and purposes, are in the same positions they were in right after Milliken bought the house.

And, to prove that stigmatized properties can be rehabbed, when you search on Google for “Konstantinos Koumboulos” or “Thornton, PA Murder Suicide” or any variation of it, the only news articles out there are…

…regarding this case, not the murder itself.

So, eventually, and maybe even now, the memories of the horrible past have faded away enough for the home to be available for sale.

-BB

HEY!  I’ll be appearing at TinyPaws, and Indy Fur Con coming up!  I hope you’ll come out and watch me be an asshole on stage for those sweet, sweet charity dollars with folks like Alkali Bismuth and the rest of the Dragget Show crew, Uncle Kage, and others!

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