.

Co-Chair, Special Education Law Practice Group

Portrait of Christopher J. Conrad

Legal Updates for Real Estate E&O Liability

When Is a Symbol of Hate Not a Material Defect in Property?

Legal Updates for Real Estate E&O – February 2026

February 1, 2026

by Christopher J. Conrad

Daniel and Lynn Rae Wentworth purchased a home in Beaver County, Pennsylvania from Juergen Steinmetz. According to their complaint, after moving into the home, the Wentworths discovered a swastika under rugs in the basement and what they perceived to be a Nazi eagle incorporated into the floor tile pattern.

The Wentworths claimed that had they previously known about the symbols in the floor tile, they would not have purchased the home. They also alleged that they could not be expected to live in the home in that condition, nor could they sell the home, and that it would cost $30,000.00 to remove the symbols and replace the floor tile. The Wentworths filed suit against Steinmetz under the Pennsylvania Real Estate Seller Disclosure Law (RESDL), alleging he failed to disclose a “material defect” in the property prior to closing, seeking compensatory and punitive damages.

Steinmetz filed preliminary objections in response to the complaint denying creating the floor pattern in support of Nazism. Steinmetz argued that the swastika is an ancient symbol embraced by various world cultures, and that its existence predates use by the Nazis. Yet, the Wentworths argued that since the swastika in the floor, “styled in the fashion that [was] used by the Nazis,” was situated in such close proximity to the German eagle, no reasonable person could believe the symbols were intended to be imagery referencing any other culture. For purposes of resolving the preliminary objections, the court set aside Steinmetz’s “subjective intent” and accepted the Wentworths’ allegations that these were indeed pro-Nazi symbols, and would be viewed as such to guests in the home or to prospective buyers.

Steinmetz also argued that even accepting the Wentworths’ allegations as true, the symbols in the floor tile were not a “material defect” that he was required to disclose to prospective buyers. Relying in part on Milliken v. Jacono, 103 A. 3d 806 (Pa. 2014), he argued that attributes of a property giving rise to a psychological stigma, like the alleged Nazi symbols in the floor, are not material defects required to be disclosed under the RESDL. The trial court agreed, and found that Milliken foreclosed the Wentworths’ claims. Although the trial court recognized the imagery in the floor was “disturbing,” it was still merely a cosmetic flaw that could be covered up, and it was not a physical or structural property that posed an unreasonable risk or an impediment to the use and enjoyment of the property. The trial court sustained the preliminary objections and dismissed the complaint.

On appeal, the Pennsylvania Superior Court revisited Milliken, considering whether the occurrence of a murder and suicide in a home was an undisclosed material defect justifying a cause of action. The Supreme Court in Milliken concluded it was not, reasoning the deaths did “not constitute an actionable material defect,” and in so holding noted the myriad “traumatizing events that could occur on a property” and that “[e]fforts to define those that warrant mandatory disclosure would be a Sisyphean task.” Milliken, 103 A. 3d at 807, 810.

The Superior Court agreed and concluded the Wentworths’ claims failed “because they suffer from the same lack of an objectively-quantifiable flaw as the one alleged in Milliken.” The Superior Court further reasoned:

In each scenario, the existence, and degree, of the defect is in the eye of the beholder. Certainly, a significant portion of homebuyers would eschew a house with a crude mosaic of Nazi iconography in its basement. Yet there is, sadly but undeniably, a segment of the population who would deem it an asset to the property. Further, even among the majority of prospective buyers who would not welcome having hate symbols adorning their basement floor, the degree to which the images impacted the value of the property would inevitably vary from person to person.

Relying on Milliken, the Superior Court noted, “that condition of the property constituting a material defect must be one that not only substantially impacts the value of the real estate, but lends itself to recognition and quantification by objective standards.” Although the Superior Court was sensitive to “the Wentworths’ outrage [and] their concern that the existence of the images could taint them as Nazi supporters,” still the court found “that that the symbols on the Wentworths’ otherwise sound and functional tile floor do not constitute a material defect that Steinmetz had a duty to disclose.” The decision of the trial court was affirmed.

 Although the seller in Wentworth was successful in defending the lawsuit, real estate professionals should still discuss with their seller clients whether there may be a hidden aesthetic characteristic in the home that a potential buyer might find to be offensive, particularly if it is not discovered until after closing. While such a characteristic ultimately may not arise to a “material defect” under the RESDL, it still could lead to costly litigation that the seller (and perhaps the seller’s agent and broker) might have to defend.  Real estate professionals may wish to advise their seller clients to remove any such hidden characteristic even before the property is listed for sale. This will help to avoid needless litigation down the road and also likely will expand the pool of potential buyers.

For further reading, see: Wentworth v. Steinmetz, 2025 PA Super 253, --- A. 3d --- (2025).

Firm Highlights

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

Thought Leadership

Featured Conversations... Key Takeaways from A.M. Best’s Webinar on the Misuse Defense in Product Liability Claims, Featuring Michael Salvati

Michael Salvati, shareholder in our Philadelphia office, was a panelist for the April A.M. Best webinar, “The Misuse Defense: Strategic Approaches to Defending Product Liability Claims for Insurers.” During the program, Michael and his fellow panelists offered practical, jurisdiction‑specific guidance on how misuse and failure‑to‑warn theories intersect in modern product liability litigation. Michael emphasized the unique challenges these claims present—particularly in states like Pennsylvania, where evidentiary rules diverge sharply from those applied in many other jurisdictions. Failure to Warn as the “Flip Side” of Misuse Salvati explained that failure‑to‑warn allegations often arise as a direct counter to a misuse defense. As he noted, “If our misuse defense is that the plaintiff didn't use a product properly or safely, then the failure to warn claim is that we didn't tell them how to use it properly.” He emphasized that these claims can stem from either the absence of warnings or criticisms of existing warnings, such as insufficient specificity or lack of clarity about risks. Pennsylvania’s Unique Evidentiary Landscape One of Salvati’s most notable points was the stark difference in how Pennsylvania treats evidence of compliance with industry standards. He highlighted that Pennsylvania is “one of the only states…where that evidence is not admissible” in strict liability cases. Manufacturers cannot rely on compliance with ANSI, UL, ISO, or even federal safety standards to defend the product against a strict liability claim—because the focus is solely on the product itself, not the manufacturer’s conduct. Salvati acknowledged the challenge this creates for defense counsel and clients who expect such compliance to carry weight. Understanding the Three Defect Theories Salvati also walked through the three primary defect theories recognized in many jurisdictions: - Design defect – a flaw in the product’s intended design - Manufacturing defect – a deviation affecting a specific unit - Failure to warn – inadequate instructions or warnings He noted that warnings claims are increasingly significant and sometimes stand alone when design or manufacturing theories are weak. As he put it, plaintiffs often default to warnings claims because “the default position seems to be, ‘If I got hurt, there must be something wrong.’” Warranties and State‑by‑State Variations Salvati addressed how breach‑of‑warranty claims fit into the broader framework, explaining that implied warranties—such as merchantability—often overlap with strict liability in Pennsylvania. He emphasized the importance of understanding local nuances, as warranty law and admissibility rules vary widely across states. Looking Ahead: The Growing Importance of Warnings In his closing remarks, Salvati stressed that warnings should never be treated as an afterthought in product liability defense. He observed that warnings‑only claims are becoming more common and urged manufacturers and insurers to continually evaluate the clarity and completeness of their instructions and warnings. His takeaway: “We should always be talking about what are the instructions that come with our products…to bolster a misuse defense.” Listen to the complete webinar here: https://www3.ambest.com/conferences/events/eventregister.aspx?event_id=WEB1074.

Thought Leadership

Legal Update for Special Education Law: Recent Positive Outcomes From the Group

Hearing Officer Confirms District Acted Appropriately Under IDEA and Section 504 Atty. William J. McPartland (Scranton) obtained a finding in favor of our client, a school district, on all issues following a due process hearing. The parent had filed a due process complaint alleging that the school district had breached its child find duty under the IDEA and Section 504, that the school district had discriminated against the student on the basis of disability in violation of Section 504, and that the school district had denied a free and appropriate public education to the student both by developing inadequate IEPs and via an actionable procedural violation.  Specifically, the student had received a Section 504 evaluation in October 2023, after a number of behavioral infractions culminating in a fight in September 2023, was identified as having anxiety and a sleep disorder, and received appropriate Section 504 accommodations. The student had never previously demonstrated signs of a learning disability, and the parent denied the school district permission to evaluate the student for special education needs in November 2023, and January 2024. The parent granted the district permission to evaluate the student in October 2024, after a private psychologist diagnosed the student with Attention Deficit Hyperactivity Disorder, possible Oppositional Defiance Disorder, a learning disorder, and anxiety. The school district issued a special education evaluation report in December 2024, finding that the student had an emotional disturbance and other health impairment, and an IEP providing an itinerant level of emotional support, as well as instruction in academics and social skills, was issued in January 2025, and amended in February, March, and April 2025. The student withdrew from the school district in April 2025, to attend a cyber charter school. The hearing officer determined that the school district had not violated its child find duty to the student in violation of either the IDEA or Section 504 where the district developed a Section 504 plan for the student within a month and a half of the parent’s first request for a Section 504 evaluation and where the parent repeatedly denied consent to conduct an IDEA evaluation of the student. The hearing officer noted that the student’s sporadic record of behavioral infractions prior to September 2023, did not suggest that the student had a disability prior to the parent’s initial request for an evaluation. The hearing officer further determined that no evidence had been produced to suggest that the student was discriminated against on the basis of disability in violation of Section 504. Additionally, the hearing officer determined that the IEP offered to the student was substantively adequate and that, to the extent the social and emotional programming offered by the school district was not received by the student, this resulted from the parent’s refusal to accept the same. The hearing officer finally determined that the school district did not commit an actionable procedural violation by delaying development of an IEP for the student where the parent repeatedly denied consent to evaluate the student. Court Dismisses Three of Four Claims Against School District Attys. Christopher J. Conrad and Daniel P. McGannon (Harrisburg) achieved a significant early victory on behalf of a school district client in. The team successfully obtained dismissal of three of the four claims asserted in the plaintiff’s amended complaint. The former district superintendent brought multiple claims arising out of his alleged “forced resignation,” including age discrimination under the ADEA, a Section 1983 Equal Protection claim, a Pennsylvania Whistleblower claim, and breach of contract. On behalf of the district, the defense team moved to dismiss the complaint in part, arguing: The plaintiff failed to plead sufficient facts to support a prima facie case of age discrimination. The equal protection claim was barred because the ADEA provides the exclusive federal remedy for age-based employment claims. The breach of contract claim could not stand because the underlying employment agreement had expired prior to the alleged breach. The court agreed, dismissing the ADEA, equal protection, and breach of contract claims in their entirety. As a result, only a single claim under the Pennsylvania Whistleblower Law remains pending. This outcome substantially narrows the scope of the litigation and positions the client for a more efficient defense moving forward.