Arbiv, M. v. Evron, Y.

• Court: Superior Court of Pennsylvania
• Decided: July 7, 2021
• Docket: 340 EDA 2020
• Status: Unpublished

Opinion

J-A23016-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MOSHE ARBIV, ZURIEL NAGAR AND : IN THE SUPERIOR COURT OF DAVID LACKNER : PENNSYLVANIA : Appellants : : : v. : : : No. 340 EDA 2020 YEHUDA EVRON, DIANE HART, PAUL : PINSKI, ABILO COSTERIA, CARMINE : FAZZOLARI, KENNETH HOLLAND : AND SEAN P. MAYS, ESQUIRE :

Appeal from the Judgment Entered December 16, 2019 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): 180300011

BEFORE: KUNSELMAN, J., NICHOLS, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED JULY 07, 2021

Appellants Moshe Arbiv, Zuriel Nagar, and David Lackner (Buyers)

appeal from the judgment entered in favor of Appellees Yehuda Evron, Diane

Hart, Paul Pinski, Abilo Costeria, Carmine Fazzolari, and Kenneth Holland

(Sellers), following a bench trial.1 Buyers raise several challenges to the trial

court’s interpretation of the commercial real estate agreement at issue. For

the reasons that follow, we vacate the judgment and remand for further

proceedings.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 By agreement of the parties, Sean P. Mays, Esquire, was dismissed from the

suit and therefore is not a party to this appeal. J-A23016-20

We adopt the facts and procedural history set forth in the trial court’s

opinion. See Trial Ct. Op., 3/9/20, at 1-6. Briefly, this case involves a breach

of a commercial real estate purchase agreement and the application of an “as

is” addendum to the agreement. Id. at 1. Specifically, Buyers claimed they

properly declared the agreement void because of an incorrect zoning

classification. Am. Compl. at ¶ 19. As a result, Buyers requested return of

their deposit, and asserted Sellers breached the agreement by refusing to

return the deposit. Id. at ¶¶ 20, 22. We add that no broker was involved

and although the parties signed the agreement, ultimately no property

changed hands. Trial Ct. Op. at 3; see also Ex. A to Am. Compl. (titled

“Agreement for the Sale of Commercial Real Estate,” which has a handwritten

“X” through the section for listing the identities of any Pennsylvania licensed

broker participating in the transaction). We quote the relevant part of the “as

is” addendum below.2

2 Although not discussed by the parties or the trial court, the agreement provides that Buyers must exercise due diligence: “It is Buyer’s responsibility to determine that the condition and permitted use of the property is satisfactory within 0 days (30 if not specified) from the Execution Date to conduct due diligence (Due Diligence Period), including verifying the . . . zoning classifications . . . .” Ex. A. to Am. Compl. “Buyer may, prior to the expiration of the Due Diligence Period, terminate this Agreement . . . .” Id. Also attached to the complaint was an exhibit purporting to be a printout from a government website listing the correct zoning classification for the property at issue. Ex. C. to Am. Compl. No party explained why the agreement was executed if the correct zoning designation was apparently publicly available.

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After a bench trial, on April 17, 2019, the trial court ruled in favor of

Sellers and against Buyers. On April 24, 2019, Buyers timely filed a post-trial

motion and an amended post-trial motion on April 26, 2019, which requested

judgment notwithstanding the verdict (JNOV). Buyers raised several issues

in their post-trial motion, but did not cite, discuss, or otherwise reference 21

P.S. § 613.1.3 It was in Buyers’ brief in support of their post-trial motion,

however, that Buyers first mentioned Section 613.1, and argued that Section

613.1 supported their claim for post-trial relief. Buyers’ Post-Trial Brief,

6/19/19, at 3-4, 11-13. On December 16, 2019, the trial court denied Buyers’

amended post-trial motion. Trial Ct. Op., 12/13/19.

Buyers timely appealed and timely filed a court-ordered Pa.R.A.P.

1925(b) statement. On March 9, 2020, the trial court filed a Rule 1925(a)

opinion, which asserted error and requested that this Court should reverse

and remand for entry of JNOV in favor of Buyers and against Sellers.

Buyers raise the following issues:

1. Whether this Court should remand this case to the [trial court] to allow entry of an order consistent with the trial court’s Pa.R.A.P. 1925(a) opinion dated March 9, 2020, in which the trial court judge acknowledged that she had erred in finding in favor of [Sellers] and should have granted [Buyers’] post-trial motion and entered judgment notwithstanding the verdict in favor of [Buyers].

2. Whether this Court should adopt the trial court’s reasoning in its Rule 1925(a) opinion that the agreement and addendum

3 Buyers did not raise Section 613.1 at trial.

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should be interpreted to permit the Buyers to declare the agreement void for failure to state the correct zoning classification for the property in paragraph 6 of the agreement.

3. Whether the [c]ourt erred, as a matter of law, in finding that an “as is” addendum to the agreement of sale excused the misstatement of [Sellers] of the zoning classification in paragraph 6, which contains language mandated by statute 63 P.S. § 455.608(b) allowing the Buyer[s] to terminate the agreement and receive back all deposit monies without the requirement of further court action if the zoning classification is not stated.

4. Whether the [c]ourt erred, as a matter of law, in refusing rescission of the agreement and return of the deposit where 21 P.S. § 613.1 requires that, in cities of the first class, all agreements for sale of real property contain the correct zoning classification and conclusively presumes that the owners represented and warranted that the zoning classification was correct.

5. Whether the [c]ourt erred when it construed the “as is” addendum to supersede and negate the express warranty as to the zoning classification and remedy of rescission set forth in Paragraph 6 of the agreement.

6. Whether the [c]ourt erred in finding in favor of [Sellers] based upon the evidence at trial and applicable law.

Buyers’ Brief at 6 (some formatting altered).

Granting Relief Based Solely on the Trial Court’s Reasoning

In support of their first two issues, Buyers request that we adopt the

trial court’s reasoning in its Rule 1925(a) opinion and remand for further

proceedings. In support of their first issue, Buyers argue that this Court

should remand the case for the trial court to enter an order consistent with its

Rule 1925(a) opinion, in which the trial court asserted error in finding for

Sellers and against Buyers. Id. at 18. Buyers quote the trial court’s reasoning

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in its Rule 1925(a) opinion and argue that remand would promote judicial

efficiency by mooting the Buyers’ appeal. Id. at 20. Buyers claim that no

party would be prejudiced because, among other reasons, the damages at

issue are presently held in escrow. Id. at 20-21. For their second issue,

Buyers similarly argue that this Court should adopt the trial court’s reasoning

in its Rule 1925(a) opinion and reverse the trial court’s decision. Id. at 21.

Initially, we note that Appellant did not cite or discuss any legal

authorities permitting this Court to remand for entry of an order consistent

with the trial court’s Rule 1925(a) opinion. Nonetheless, it appears this Court

has the authority to remand for the trial court to enter an order reversing itself

and enter judgment in favor of Buyers, while retaining jurisdiction to resolve

the parties’ appeal. See Pa.R.A.P. 1701(a), (b)(5) (stating that after an

appeal has been taken, the trial court may no longer proceed, but may “[t]ake

any action directed or authorized by an appellate court”). However, under the

unique circumstances of this case, we conclude that remanding this matter for

the trial court to reverse itself and restart the appellate briefing process anew

for all of Buyers’ remaining issues would not “secure the just, speedy, and

inexpensive determination” of this appeal. See Pa.R.A.P. 105(a).

Pennsylvania Real Estate Licensing and Registration Act (RELRA)

Buyers’ third argument is that the “as is” addendum did not negate

Buyers’ right to void the real estate agreement under RELRA because the

agreement failed to state the correct zoning classification. Buyers’ Brief at

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22. In Buyers’ view, RELRA requires disclosure of the zoning classification.

Id. at 22-23. According to Buyers, Sellers’ failure to disclose the correct

zoning classification permitted Buyers to void the real estate contract. Id. at

23. In support, Buyers discuss Roddy, Inc. v. Thackray Crane Rental,

Inc., 2001 WL 1807953 (C.C.P. Phila. 2001), and Meyer v. Gwynedd Dev.

Grp., Inc., 756 A.2d 67 (Pa. Super. 2000). Id. at 24-25. Buyers reason that

although no brokers were involved in the instant transaction, “it is clear that

the legislature intended that the statutorily required language [of zoning

classification] be included in all agreements of sale of real property, not just

those transactions which involve” a broker. Id. at 27. Buyers conclude that

because the agreement did not disclose the “correct zoning classification” for

the property, Buyers had the right to void the agreement under RELRA

notwithstanding any “as is” addendum.4 Id. at 28.

We state the standard of review as follows:

Our appellate role in cases arising from non-jury trial verdicts is to determine whether the findings of the trial court are supported by competent evidence and whether the trial court committed error in any application of the law. The findings of fact of the trial judge must be given the same weight and effect on appeal as the verdict of a jury. We consider the evidence in a light most favorable to the verdict winner. We will reverse the trial court only if its findings of fact are not supported by competent evidence in the record or if its findings are premised on an error of law.

4 Sellers counter that RELRA does not apply because no broker was involved.

Sellers’ Brief at 11.

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Amerikohl Mining Co. v. Peoples Nat. Gas Co., 860 A.2d 547, 549-50 (Pa.

Super. 2004) (citations omitted and formatting altered).

When reviewing an order resolving a post-trial motion for JNOV, our

standard of review is as follows:

An appellate court will reverse a trial court’s grant or denial of a JNOV only when the appellate court finds an abuse of discretion or an error of law. Our scope of review with respect to whether [JNOV] is appropriate is plenary, as with any review of questions of law.

In reviewing a motion for [JNOV], the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a [JNOV] should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner.

* * *

Questions of credibility and conflicts in the evidence are for the fact-finder to resolve and the reviewing court should not reweigh the evidence. If there is any basis upon which the [fact-finder] could have properly made its award, the denial of the motion for [JNOV] must be affirmed.

Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011)

(per curiam) (citations omitted and formatting altered).

In Phelps v. Caperoon, 190 A.3d 1230 (Pa. Super. 2018), this Court

summarized the well-settled rules of statutory construction:

The Statutory Construction Act, 1 Pa.C.S. §§ 1901-1991, sets forth principles of statutory construction to guide a court’s efforts with respect to statutory interpretation. In so doing, however, the Act expressly limits the use of its construction principles. The purpose of statutory interpretation is to ascertain the General Assembly’s intent and to give it effect. In discerning that intent,

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courts first look to the language of the statute itself. If the language of the statute clearly and unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent and not look beyond the statutory language to ascertain its meaning. Courts may apply the rules of statutory construction only when the statutory language is not explicit or is ambiguous.

We must read all sections of a statute together and in conjunction with each other, construing them with reference to the entire statute. When construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections. Statutory language must be read in context, together and in conjunction with the remaining statutory language.

Every statute shall be construed, if possible, to give effect to all its provisions. We presume the legislature did not intend a result that is absurd, impossible, or unreasonable, and that it intends the entire statute to be effective and certain. When evaluating the interplay of several statutory provisions, we recognize that statutes that relate to the same class of persons are in pari materia and should be construed together, if possible, as one statute.

Also, when interpreting a statute we must listen attentively to what the statute says, but also to what it does not say.

Phelps, 190 A.3d at 1236 (quoting Retina Assocs. of Greater Phila., Ltd.

v. Retinovitreous Assocs., Ltd., 176 A.3d 263, 270 (Pa. Super. 2017)

(alteration omitted)).

In relevant part, Section 455.302 of RELRA states:

No action or suit shall be instituted, nor recovery be had, in any court of this Commonwealth by any person for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act by a person other than a licensed broker . . . unless such person was duly licensed and registered hereunder as broker or salesperson at the time of offering to perform any such act or service or procuring any promise or contract for the payment of compensation for any such contemplated act or service.

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63 P.S. § 455.302.

In Boland v. Mullen, 450 A.2d 749 (Pa. Super. 1982), this Court

construed the substantively identical clause in the statutory predecessor to

RELRA, which was known as the Real Estate Brokers License Act, 63 P.S. §§

431-448. Boland, 450 A.2d at 750. The Boland plaintiff, an unlicensed real

estate salesperson, referred a client to the defendant, a licensed real estate

broker, for the client’s purchase of a warehouse in exchange for a promise to

split the resulting commission. Id. The defendant did not split the

commission, and the plaintiff sued for breach of contract. Id. The case went

to trial, a jury found for the plaintiff, and the defendant appealed. Id.

The Boland Court held that the plaintiff’s lawsuit was barred by the

following clause of the Real Estate Brokers License Act:

[N]o action or suit shall be instituted, nor recovery therein be had, in any court of this Commonwealth by any person, copartnership, association or corporation for compensation for any act done or service rendered, the doing or rendering of which is prohibited under the provisions of this act to others than licensed real estate brokers, unless such person was duly licensed hereunder as real estate broker at the time of doing such act or the rendering of such service.[fn4]

Real Estate Brokers License Act of May 1, 1929, P.L. [fn4]

1216, § 16, as amended, 63 P.S. § 446. A similar prohibition is contained in Section 455.302 of the Real Estate Licensing Act of February 19, 1980, P.L. 15, No. 9, § 302, 63 P.S. § 455.302.

Id. at 751 & n.4 (formatting altered).

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More recently, in Meyer, the appellant claimed that the trial court erred

by holding that he could not obtain relief because he was not licensed under

RELRA. Meyer, 756 A.2d at 68. The Meyer Court affirmed the trial court,

reasoning that because the appellant was not licensed under RELRA,

“Pennsylvania law clearly precludes any person from [recovery] if that person

was required to be licensed pursuant to the Act, and was not so licensed at

the time of the transaction[.]” Id. at 72.

Here, as Sellers and the trial court’s opinion denying post-trial relief

correctly noted, there is no evidence in the record that any broker, let alone

a licensed broker, was involved in the agreement at issue. See Trial Ct. Op.,

12/13/19, at 14. Buyers, similar to the plaintiffs in Meyer and Boland,

cannot invoke RELRA for relief because no licensed broker was involved in the

instant transaction. See Meyer, 756 A.2d at 72; Boland, 450 A.2d at 751 &

n.4. Because no licensed broker was involved, Buyers cannot file a lawsuit,

or otherwise recover, for any violation of RELRA. See 63 P.S. § 455.302; see

Meyer, 756 A.2d at 72; Boland, 450 A.2d at 751 & n.4. Therefore, even

assuming Sellers violated RELRA by not stating the “correct” zoning

classification, the plain and unambiguous statutory language of Section

455.302 states Buyers cannot sue under RELRA. See 63 P.S. § 455.302;

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Phelps, 190 A.3d at 1236. Therefore, Buyers have no right to void the

agreement under RELRA.5 See 63 P.S. § 455.302.

Requirement for Accurate Zoning Classification

We briefly summarize Buyers’ fourth argument, which is that 21 P.S. §

613.1 requires that an accurate zoning classification be stated in the

agreement of sale. Buyers’ Brief at 29-30.

In Trigg v. Children’s Hosp. of Pittsburgh of UPMC, 229 A.3d 260

(Pa. 2020), our Supreme Court noted:

The issue of waiver presents a question of law, and, as such, our standard of review is de novo and our scope of review is plenary. As a general matter, it is axiomatic that issues not raised in lower courts are waived for purposes of appellate review, and they cannot be raised for the first time on appeal. This is because, as our Court has oft reminded, issue preservation is foundational to proper appellate review. Requiring issues to be properly raised first in the trial court ensures that trial judges have the opportunity to consider a potential appellate issue and correct any error at the first available opportunity. It also promotes the orderly and efficient use of judicial resources, ensures fundamental fairness to the parties, and accounts for the expense attendant to appellate litigation.

Trigg, 229 A.3d at 269 (citations omitted and formatting altered); see

generally Pa.R.C.P. 227.1; Pa.R.A.P. 302(a) (stating, issues “not raised in

the trial court are waived and cannot be raised for the first time on appeal”).

5 It is unnecessary to address the impact of the “as is” addendum for Buyers’

third issue because Buyers have no recourse under RELRA. Buyers also cannot rely on Roddy in support as trial court opinions are not binding precedence. See Coleman v. Wyeth Pharma., Inc., 6 A.3d 502, 522 n.11 (Pa. Super. 2010) (holding trial court decisions, with few exceptions, are not binding on this Court).

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Rule 227.1 provides:

(b) Except as otherwise provided by Pa.R.E. 103(a), post-trial relief may not be granted unless the grounds therefor,

(1) if then available, were raised in pre-trial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial; and

(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.

Pa.R.C.P. 227.1(b).

For example, in Moure v. Raeuchle, 604 A.2d 1003 (Pa. 1992), our

Supreme Court held that the plaintiff waived the issue of negligence by not

raising it in her post-trial motion. Moure, 604 A.2d at 1007-08. More

recently, in Brown v. Halpern, 202 A.3d 687 (Pa. Super. 2019), appeal

denied, 217 A.3d 207 (Pa. 2019), and appeal denied, 217 A.3d 809 (Pa.

2019), this Court similarly held that the appellants waived certain issues for

appellate review because they raised those issues for the first time in a post-

trial motion, rather than at trial. Brown, 202 A.3d at 697. Finally, raising an

issue in a post-trial brief that was not raised in the post-trial motion does not

preserve the issue for appellate review. See Siculietano v. K & B

Amusements Corp., 915 A.2d 130, 132 n.2 (Pa. Super. 2006).

Here, Buyers never raised 21 P.S. § 613.1 at trial. We agree with the

trial court that “Buyers waived this issue because they did not raise that

statute at trial.” See Trial Ct. Op., 12/13/19, at 7; Pa.R.C.P. 227.1(b)(1);

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Trigg, 229 A.3d at 269. Further, Buyers did not raise Section 613.1 in their

post-trial motion, which also results in waiver. See Moure, 604 A.2d at 1007-

08; Brown, 202 A.3d at 697. Finally, Buyers’ discussion of Section 613.1 in

their brief in support of their post-trial motion also did not preserve their claim

for appellate review, particularly since they never raised Section 613.1 at trial.

See Pa.R.C.P. 227.1; Siculietano, 915 A.2d at 132 n.2. For these reasons,

Buyers waived the issue for appellate review. See Pa.R.A.P. 302(a).

The “As Is” Addendum

Before summarizing Buyers’ fifth argument, we quote the relevant part

of the “as is” clause in the addendum:

Seller is selling and the Buyer is buying the property in an “AS IS” CONDITION WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE.[]

It is understood and agreed that the Property is being purchased in its “as is” condition. The Seller . . . make[s] no representations, warranties or guarantees of any kind whatsoever including, but not limited to: . . . zoning . . . . Buyer agrees to indemnify and hold harmless Seller . . . . Furthermore, Seller is not responsible for nor obligated to provide or perform any certifications and inspections. . . .

In the event any provision of this Addendum conflicts in whole or in part with the terms contained in the main body of the Agreement . . . the provisions of this Addendum shall control and the conflicting terms in the Agreement are hereby considered deleted and expressly waived by both Buyer and Seller.

Ex. A to Am. Compl. (emphasis in original). The entire addendum was

executed contemporaneously with the agreement at issue. Id.

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Buyers claim that the “as is” clause in the addendum does not supersede

or negate “the express warranty of the zoning classification” and Buyers’ right

to rescind the agreement. Buyers’ Brief at 31. Buyers assert that they were

“entitled to reply upon” Sellers’ representation of the zoning classification. Id.

at 32. In Buyers’ view, it was only because of Sellers’ representation that

Buyers agreed to the “as is” addendum and waived “the right to further

investigation” of the zoning classification. Id. Buyers maintain that the “as

is” addendum “did not negate the explicit representation of the zoning

classification” and “Buyers were entitled to rely upon it.” Id. at 33. In

support, Buyers rely on Juniata Valley Bank v. Martin Oil Co., 736 A.2d

650 (Pa. Super. 1999). Id. at 34.

Here, in concluding that the “as is” clause voided the agreement, the

trial court reasoned as follows:

Paragraph 6 did, in fact, state that the zoning classification was “W80 Apartment.” The clear language of the [“as is” clause], however, stated that Sellers were not making any representations or warranties of any kind or nature regarding zoning. Crucially, the conflicting zoning term in Paragraph 6 was “hereby considered deleted and expressly waived by both Buyer and Seller.” Although the “W80 Apartment” classification was deemed deleted by the [“as is” clause], the remaining text of Paragraph 6 remained in full force and effect. The end result of the [“as is” clause] was to remove the zoning classification in Paragraph 6, which triggered the voidable nature of the contract because of the “[f]ailure of this Agreement to contain the zoning classification.”

Trial Ct. Op., 3/9/20, at 7. In sum, the trial court held that because the “as

is” clause “deleted” a required term in the agreement, the entire agreement

was voidable. Id.

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Our review of the record confirms that although the trial court initially

denied Buyers’ post-trial motion, the trial court issued a Rule 1925(a) opinion

concluding that Buyers were entitled to relief. See id. Therefore, Sellers did

not have an opportunity to challenge the trial court’s reasoning before Buyers

appealed. Cf. DiGregorio v. Keystone Health Plan E., 840 A.2d 361, 367

(Pa. Super. 2003) (holding that if trial court’s order was construed as a grant

of an oral motion for summary judgment, the appellant did not waive its

arguments when it was not given opportunity to file a responsive brief in

opposition). Therefore, under the circumstances of this case, and to ensure

that the parties have the opportunity to properly raise and preserve any

arguments for appellate review, we vacate the judgment and order the trial

court to issue a new decision limited to the issue of whether the “as is” clause

“deleted” a required term in the agreement, rendering the entire agreement

voidable. See 42 Pa.C.S. § 706 (stating that “[a]n appellate court may affirm,

modify, vacate, set aside or reverse any order brought before it for review,

and may remand the matter and direct the entry of such appropriate order,

or require such further proceedings to be had as may be just under the

circumstances”). On remand, the parties may then file post-trial motions and

appeal, if necessary.6

6 In sum, although we vacate the judgment, we agree with the trial court’s

disposition of Buyers’ RELRA and Section 613.1 claims presented in their appellate issues, one through four. Further, because of our disposition of (Footnote Continued Next Page)

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Judgment vacated. Case and record remanded for further proceedings

as set forth above. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/7/2021

Buyers’ fifth issue, we need not address their sixth issue, which was that the trial court erred in finding for Sellers.

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