Calisto, M. v. Rodgers, M.

• Court: Superior Court of Pennsylvania
• Decided: August 6, 2020
• Docket: 2834 EDA 2018
• Status: Unpublished

Opinion

J-S37016-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MICHAEL CALISTO, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : MICHAEL RODGERS : No. 2834 EDA 2018

Appeal from the Judgment Entered, November 2, 2018, in the Court of Common Pleas of Philadelphia County, Civil Division at No(s): 160801903.

BEFORE: BOWES, J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.: Filed: August 6, 2020

I. Introduction

In this quiet title action involving the ownership of three townhouses in

Philadelphia, the Plaintiff, Michael Calisto, appeals from the judgment entered

in favor of the Defendant, Michael Rodgers, following a non-jury trial. Upon

review, we conclude that, under the statute of frauds and the parol-evidence

rule, the trial court improperly denied Calisto relief. We vacate the judgment

and remand for entry of a proper, equitable decree, granting Calisto quiet title

to the townhouses but requiring him to return the purchase money to Rodgers.

II. Factual & Procedural Background

Michael Calisto inherited three townhouses when his mother, Joan

Calisto, passed away in 2001. A dispute between Calisto and Rodgers began

15 years later, in 2016, and resulted in this litigation. As the record indicates, J-S37016-19

the parties have drastically different stories regarding their claims of

ownership to the properties.

Calisto claims that, in July of 2016, he awoke to find a locksmith

attempting to remove the lock from the front door of one of the townhouses.

When Calisto asked the locksmith what he was doing, he said that Rodgers’

realty company sent him to change the locks. He pointed down at Rodgers,

who was sitting in his car in front of Calisto’s house. Calisto yelled that he

was calling the police, and Rodgers sped away.

A few days later, Joshua Weidman knocked on Calisto’s door asking to

view the three properties. Weidman claimed he had equitable title to the

townhouses under a written contract between him and Rodgers. A week

before, Rodgers had contacted Weidman to see if his company, Turn Key

Philly, LLC, was interested in flipping three properties that Rodgers just

acquired. Weidman left Calisto his card and gave him a phone number for

Rodgers.

Calisto soon instituted legal action by filing a writ of summons against

Weidman and Turn Key Philly, LLC. On August 16, 2016, he also filed lis

pendens notices for all three properties.

In a pre-complaint deposition, Weidman shared more details about his

interaction with Rodgers. He said Rodgers claimed to have recently heard of

the three properties from someone named “Ed” at a casino. Ed (last name

unknown) told Rodgers he represented Joan Calisto, who wished to sell some

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real estate. Weidman attempted to reach Ed at a phone number Rodgers

provided, but the line was not in service.

After Weidman discovered Calisto was living in one of the homes, he

searched online for Joan Calisto and realized she was deceased. He therefore

concluded the underlying transfer was likely fraudulent (something Weidman

said was common in the Philadelphia market) and abandoned hope of

purchasing the properties from Rodgers. Weidman stopped returning any calls

or texts from Rodgers. Based on this information, Calisto substituted Rodgers

as the defendant and dismissed Weidman and his company from the lawsuit.

In his complaint, Calisto asserted that Rodgers recorded forged deeds

to the three homes and attempted to steal his properties. Among the several

counts in his complaint, Calisto brought an action for quiet title seeking

declaratory judgment of ownership and specific performance to correct the

official property records in Philadelphia County.

Rodgers presented a much different version of events. Rodgers testified

that someone named “Eddy” had told him about Calisto’s properties at a

casino while they were playing blackjack together, in the summer 2016. He

said that he followed up on that lead on July 13, 2016 by going to inspect the

homes. Rodgers found them in utter disrepair, although they were structurally

sound. In one of the properties, he met a man named John Callaway, who at

first appeared to be a squatter, but turned out to be a tenant. After a brief

discussion, Callaway acknowledged that he and Calisto had sent Eddy to find

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potential buyers. Shortly thereafter, Calisto came to Callaway’s apartment

and confirmed that he was looking to sell.

Calisto told Rodgers that his mother, Joan, was dead and, through their

family realty company, Calisto had authority to sell the homes. Rodgers

returned to the residences on July 14, 2016 and the parties resumed

negotiations. Calisto originally offered the homes for $250,000 to Rodgers.

They settled on $150,000 in cash for all three.

Rodgers retuned on July 15, 2016 with a $10,000 down payment. Next,

he and Calisto executed a written Sales Agreement in Joan Calisto’s name,

which Rodgers testified was a contract for the transfer of the three properties.

Rodgers did not, however, know or ask whether an estate for Joan Calisto

existed at that point. He testified that he was ignorant of the law of estates

and land transactions.1 The Sales Agreement, which Calisto admitted into

evidence during his cross-examination of Rodgers, indicates that Joan Calisto

and Rodgers executed it on July 7, 2016 – i.e., a week before Rodgers’ initial

meeting with Calisto and fifteen years after Joan Calisto’s death.

The Sales Agreement has the seal and signature of Celeste Cerino, a

notary public. See Calisto’s Exhibit - 4 at 3. According to Rodgers’ testimony,

the “X” typed next to the word “ACCEPTED” in the Sales Agreement was

Rodgers’ indication that he agreed to buy the properties, that Calisto initialed ____________________________________________

1 Of course, as we explain below, under the Supreme Court of Pennsylvania’s explicit teachings in Kurland v. Stolker, 533 A.2d 1370, 1372 (Pa. 1987), ignorance of the law of property is no excuse for commencing a legally deficient land transaction.

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it on behalf of his dead mother as “J.C.,” and that an illegible signature above

the words “Selling Company” was Calisto’s signature on behalf of “Prime Real

Estate, LLC.” See N.T., 3/27/18, at 165. Rodgers further testified that Calisto

assured him that “Prime Real Estate” was Calisto’s family realty company and

he could sell the homes in his corporate role. Nothing within the four-corners

of the Sale Agreement reflects that such a representation occurred, however,

nor does the contract itself evidence that Calisto, in fact, signed on behalf of

the corporation. Indeed, Calisto’s name does not appear anywhere in the

Sales Agreement. We examine the Sales Agreement in detail below. See this

Opinion infra, Section III, B-1.

Rodgers spent the next two weeks withdrawing the additional $140,000

to purchase the properties from his bank’s ATMs and a local casino. Rodgers

produced his bank statements evidencing these withdrawals, but no writing

indicated that Calisto ever received those payments.

Instead, Rodgers testified that he paid cash to Calisto, who then gave

him three deeds with the signatures of Joan Calisto, as the grantor. Absent

from Rodgers’ testimony, though, is any indication of how those deeds were

notarized or any mention of a notary being present to authenticate the

documents at the closing.

Someone dated the deeds for July 7, 2016, although Rodgers testified

that this exchange occurred near the end of the month – around July 26, 2016.

Rodgers testified that he then recorded the deeds as Calisto had instructed.

However, when Rodgers sent a locksmith to take possession of the homes, he

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learned that Calisto lived in one of the properties. To Rodgers’ dismay, Calisto

refused to surrender possession of the properties.

Rodgers sought help from the District Attorney of Philadelphia County,

but the staff informed him that this was a civil (as opposed to a criminal)

matter, so they did not have jurisdiction. Learning this, Rodgers initiated his

own lawsuit against Calisto seeking quiet title to the same three properties.

See Rodgers v. Calisto, No. 160901119 (C.C.P. Philadelphia 2016).2

Rodgers eventually moved to consolidate that case with this one before trial,

but the Court of Common Pleas of Philadelphia County, per the Honorable

Denis P. Cohen, denied the motion without explanation. Id., March 12, 2018

Order.

The instant case (Calisto v. Rodgers) proceeded to trial before the

Honorable Karen Shreeves-Johns at the end of March 2018. The trial judge

heard the conflicting stories from the parties. Rodgers also called Hattisha ____________________________________________

2 We take judicial notice of the trial court’s record in Rodgers v. Calisto, No. 160901119 (C.C.P. Philadelphia 2019), which we discuss in detail below. See Pennsylvania Rule of Evidence 201. As a now-final judgment on the merits, it has legal force and effect under the doctrine of res judicata.

“Res judicata” means ‘a thing adjudged’ or a matter settled by judgment. Traditionally, American courts have used the term res judicata to indicate claim preclusion, i.e., the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and constitutes for them an absolute bar to a subsequent action involving the same claim, demand or cause of action.

Stoeckinger v. Presidential Fin. Corp. of Delaware Valley, 948 A.2d 828, 832 (Pa. Super. 2008).

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Rogers (no relation) to testify about what she witnessed regarding the parties’

execution of their oral agreement. Hattisha rode with Rodgers to one of the

properties on the day that Rodgers and Calisto consummated their

transaction. According to Hattisha, she saw Rodgers give a bag full of large

bills to Calisto and another tall man, on the sidewalk near one of the

properties. Rodgers handed over the cash and returned to the car with a

folder full of deeds and other papers.

Judge Shreeves-Johns found that Rodgers and Hattisha were “more

credible than [Calisto] regarding the alleged fraudulent transaction for the

deeds to the properties.” Trial Court Opinion, 11/28/18, at 6-7. Based upon

their testimony, the court determined that Rodgers “received the deeds from

[Calisto] without reason to question the validity of the signatures, as they

were received from [Calisto] as executor and beneficiary of his mother’s

estate.” Id. at 11. The trial court therefore refused to quiet title for Calisto

and returned a non-jury decision in favor of Rodgers.

Calisto filed post-trial motions, seeking judgment as a matter of law or,

in the alternative, a new trial. As error, he claimed that the court refused to

admit evidence of Rodgers’ criminal conviction for crimes of falsehood and

failed to give effect to the statute of frauds. The trial court denied those

requests, and this timely appeal followed.

While this appeal was pending, the other lawsuit involving these parties

and these properties, Rodgers v. Calisto, went to trial on February 12, 2019.

For reasons unclear on either record, the common pleas court assigned that

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case to the Honorable Lillian H. Ransom, instead of the judge who had already

tried and decided this matter. At the beginning of trial, Rodgers moved for

judgment as a matter of law, because he believed that Judge Shreeves-Johns’

decree in Calisto v. Rodgers was res judicata and barred recovery by Calisto.

Rodgers v. Calisto, N.T., 2/12/19, at 8-12.3 Judge Ransom denied that

motion. See id. at 15.

____________________________________________

3 Upon reviewing the parties’ initial appellate briefs, we:

observe[d] that [Calisto’s] Brief at footnote 4 indicates that the Honorable Lillian H. Ransom rendered a non-jury decision in Rodgers v. Calisto (Court of Common of Philadelphia County Civil Docket No. 160901119) in favor of Calisto that may affect the disposition of this appeal. Thus, both parties [were] ORDERED to file supplemental briefs to explain what impact, if any, that now-final judgment has upon the instant appeal and why.

Superior Court Order, 9/3/19. Calisto and Rodgers complied with that order.

Calisto’s Supplemental Brief includes a transcript from the trial in Rodgers v. Calisto. That transcript contains the certification of Kimberly A. Wilson, Court Reporter for the Court of Common Pleas of Philadelphia County. See N.T., 2/12/19, at 32. Moreover, Rodgers did not contest the authenticity or reliability of Reporter Wilson’s transcript. In fact, Rodgers cites to and relies upon it, as well. See Rodger’s Supplemental Brief at 2.

As mentioned above, we judicially notice Rodgers v. Calisto (Court of Common of Philadelphia County Civil Docket No. 160901119) under Rule of Evidence 201, and that case’s record includes the certified transcript from Reporter Wilson. Under Rule 201, any court “may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Pa.R.E. 201(b). We may take judicial notice sua sponte and for the first time on appeal. See Pa.R.E. 201(c),(d).

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Due to that ruling, Rodgers found himself in a quandary. He tried to

submit the recorded deeds, but the pages with Joan Calisto’s signature were

missing. Calisto objected to the admission of the deeds based upon the

statute of frauds and moved for dismissal of Rodgers’ action. See Id. at 26.

Counsel for Rodgers conceded he did not have full copies of the deeds.

Nevertheless, he argued that Rodgers could testify about receiving the deeds,

recording them, and about certain information that was on the documents,

even if the trial court would not admit the deeds into evidence. Judge Ransom

rejected his proffer of parol evidence. She explained:

this is highly irregular . . . the proof of your client’s claim that he is the rightful owner of the property is not based on any testimony that he might give, if I were to allow him to ____________________________________________

Thus, Rule of Evidence 201(d) is an exception to the general rule that we must limit our scope of review to “only the materials in the certified [appellate] record when resolving an issue.” Ruspi v. Glatz, 69 A.3d 680, 691 (Pa. Super. 2013). The Ruspi Rule prevents undue surprise on appeal and ensures that the appellate court is not relying upon unsubstantiated facts. “The emphasis on the certified record is necessary because, unless the trial court certifies a document as part of the official record, the appellate judiciary has no way of knowing whether that piece of evidence was duly presented to the trial court or whether it was produced for the first time on appeal and improperly inserted into the reproduced record.” Id.

Unlike Ruspi, where an appellant relied upon an extra-judicial “chain of e-mails from a year before the accident,” id. at 690, the transcript that Calisto included with his supplemental brief carries the certification of the trial court’s reporter, and we have no reason to doubt its validity. Moreover, Rodgers does not contest the authenticity or accuracy of that transcript. Thus, we are satisfied that the transcript Calisto provided us is a true and authentic record of the in-court proceeding of Rodgers v. Calisto (Court of Common of Philadelphia County Civil Docket No. 160901119), derived “from sources whose accuracy cannot reasonably be questioned,” Pa.R.E. 201(b), i.e., the Court of Common Pleas of Philadelphia County.

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testify. The proof would be the fully recorded deeds, to which [Calisto] then could raise a defense or challenge it, if [he] wanted to [do so].

Id. at 25.

The trial court took a 30-minute recess to allow Rodgers time to get the

full deeds from the Office of Records of Philadelphia County. He never

returned. Judge Ransom dismissed his case with prejudice, because she

concluded that Rodgers’ testimony regarding transfer of property was

insufficient as a matter of law. See id. at 27.

Thus, in the same dispute, between the same parties, on the issue of

ownership of the same three properties, two judges of the same court,

reached diametrically opposite conclusions. Rodgers did not appeal Judge

Ransom’s decision; therefore, it became a final judgment on February 25,

2019. As the conflicting judgments currently stand, neither Calisto nor

Rodgers obtained quiet title to these properties.

Although he has defeated Rodgers’ claim to ownership before Judge

Ransom, Calisto challenges Judge Shreves-Johns’ refusal to grant him quiet

title in this matter.

III. Analysis

Calisto raises three claims of error, which we reorder as follows:

1. Did the lower court err, as a matter of law, by not allowing evidence of [Rodgers’] criminal conviction?

2. Did the lower court err, as a matter of law, in misapplying the statute of frauds?

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3. Did the lower court commit errors of law by treating this case as competing claims of fraud, where none was pleaded by [Rodgers] and also by finding in [Rodgers’] favor when it did not require him to meet a burden of proof of clear and convincing evidence?

Calisto’s Brief at 4.

A. Evidence of Criminal History

First, Calisto seeks a new trial, because the trial court prohibited him

from impeaching Rodgers based on his prior conviction of robbery. While

cross-examining Rodgers, Calisto’s attorney asked, “Can you tell me if you’ve

ever been convicted of any crime that involves dishonesty?” N.T., 3/27/18,

at 141-42. Believing that Calisto needed to introduce certified records of a

conviction to impeach a witness, counsel for Rodgers objected. Calisto’s

lawyer had only a printout of a court docket. See id. at 141-46. He argued

that the printout showed Rodgers was convicted of robbery and had a

minimum sentence of three years; because Rodgers should have been

released in 2009, the release date was within the ten-year period allowed for

admission of the conviction under Pennsylvania Rule of Evidence 609.

Judge Shreeves-Johns sustained the objection, because Calisto’s

attorney did not have a certified copy of the court record. In her opinion, she

noted:

the court determined that [Calisto’s] counsel failed to present credible documentation of [Rodgers’] conviction. Instead of a certified record, [Calisto] presented an uncertified computer printout. N.T., 3/27/2018 at 142-46. Assuming, arguendo, [Rodgers’] conviction could have been properly admitted into evidence, this court does not believe that failing to admit it into evidence constitutes reversible

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error, as the court was aware that [Rodgers] had a criminal history. Despite having considered [Rodgers’] criminal past, this court made its determination based on the credibility of the parties’ testimony with regards to the subject transaction. The court’s decision would have remained the same even if [Rodgers’] past criminal conviction was admitted into evidence.

Trial Court Opinion, 11/28/18, at 9.

On appeal, Calisto argues Rodgers’ conviction in 2006 for robbery

(infliction of serious bodily injury)4 is crimen falsi. In his view, the trial court

should have admitted the evidence for impeachment purposes, under Rule

609. Calisto further asserts the misapplication of this rule was harmful error,

because the court ruled in favor of Rodgers based on his credibility.

When reviewing an evidentiary ruling, this Court defers to the trial court,

and we reverse in limited circumstances. As we have said:

Admission of evidence is within the sound discretion of the trial court, and we review the trial court’s determinations regarding the admissibility of evidence for an abuse of discretion. To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Czimmer v. Janssen Pharm., Inc., 122 A.3d 1043, 1058 (Pa. Super. 2015)

(quoting Conroy v. Rosenwald, 940 A.2d 409, 417 (Pa. Super. 2007)). An

“abuse of discretion” is not merely an error of judgment. Paden v. Baker

Concrete Constr., Inc., 658 A.2d 341, 343 (Pa. 1995). A trial court abuses

its discretion by making a manifestly unreasonable, arbitrary, or capricious ____________________________________________

4 18 Pa.C.S.A. § 3701(a)(1)(i).

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decision; by failing to apply the law; or by allowing prejudice, bias, or ill will

to influence its decision. See, e.g., Harman v. Borah, 756 A.2d 1116, 1123

(Pa. 2000).

Pennsylvania Rule of Evidence 609 provides:

(a) In General. For the purpose of attacking the credibility of any witness, evidence that the witness has been convicted of a crime, whether by verdict or by plea of guilty or nolo contendere, must be admitted if it involved dishonesty or false statement.

(b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

Pa.R.E. 609. Pursuant to subsection (a), when the conviction is less than ten-

years-old, its admission is mandatory – the evidence of the conviction “must

be admitted.” Id. (emphasis added). See also Pa.R.E. 609 Comment

(stating, “Where the date or conviction or last date of confinement is within

ten years of the trial, evidence of the conviction of a crimen falsi is per se

admissible.”).

“Robbery and burglary are considered crimen falsi and convictions for

these offenses are admissible for impeachment purposes.” Commonwealth

v. Trippett, 932 A.2d 188, 199–200 (Pa. Super. 2007). Rodgers does not

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dispute this. Instead, he relies on his argument below – which the trial court

adopted – that Calisto needed to produce the certified record of the conviction.

Rodgers’ contention has no support in either the language of the Rule or case

law. Indeed, neither the trial court nor Rodgers cited any authority for the

proposition that Calisto needed a certified record to impeach Rodgers’

credibility.

The trial court grafted a certified-record requirement onto Rule 609,

where none exists.5 Thus, the court, by refusing to allow Calisto’s attorney

to cross-examine Rodgers regarding his prior conviction of robbery, failed to

apply Rule 609 as written. It also overrode the comment to that Rule, which

made evidence of Rodgers’ robbery conviction “per se admissible.” Pa.R.E.

609 Comment. This was an abuse of discretion, because Rule 609 and its

comment leave no room for discretion in this scenario.6

However, erroneously barring evidence of a prior conviction to impeach

a witness does not automatically result in a new trial. As mentioned, an

5It appears that the trial court confused impeachment by prior conviction with authentication of evidence under Pennsylvania Rule of Evidence 902. We also note that trial courts may generally take judicial notice of prior violations and convictions under Pennsylvania Rule of Evidence 201. See Commonwealth v. Taylor, 137 A.3d 611, 617 n.1 (Pa. Super. 2016) (en banc). 6 The only legitimate basis for excluding such convictions is under subsection (b) of Pennsylvania Rule of Evidence 609 – i.e., if the prejudicial effect substantially outweighs the conviction’s probative value or if the party seeking to impeach the witness did not provide timely notice. The trial court did not base its exclusion on either of these grounds, nor does Rodgers contend that either applies.

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evidentiary error only warrants a retrial if the mistake harmed the appellant.

See Czimmer, supra.

The trial court stated that it knew of Rodgers’ prior conviction and, even

if it had received the impeaching evidence, its credibility determination would

not have changed. “[Calisto’s] attempt to impeach the credibility of [Rodgers]

would not alter the court’s determination of [Rodgers’] credibility on this issue

of the property transfer in the face of the entirety of what was presented at

trial.” Trial Court Opinion, 11/12/18, at 9. Because the trial court, who viewed

the witnesses’ body language and heard their testimony, was greatly

convinced of Rodgers’ honesty, its refusal to admit his conviction for purposes

of impeachment was harmless error in this bench trial.

This issue affords Calisto no appellate relief.

B. The Statute of Frauds

Next, Calisto asserts the trial court misapplied the statute of frauds

regarding oral contracts for the transfer of realty. He claims his mother’s will

gave him title to the three townhomes, and no evidence proved, as a matter

that of law, he granted those titles to anyone. See Calisto’s Brief at 32. Thus,

Calisto requested that the court, inter alia, enter judgment in his favor and

direct the Clerk of Records in Philadelphia County to convey the properties to

him. See Amended Complaint at 5.

In reply, Rodgers argues that, although the deeds identified the grantor

as Joan Calisto (as opposed to Michael Calisto), this does not invalidate the

transfer based on the totality of the facts surrounding the agreement. See

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Rodgers’ Brief at 4. “That the deeds bore [Joan Calisto’s] name was not a

technicality sufficient to dissolve the transaction.” Rodgers’ Brief at 5.

He further indicates that the trial court found, as a fact, that the parties

entered a contract to sell the land and completed the transaction by

exchanging the deeds for cash. Because the trial court found Rodgers’ version

of events was “credible, the facts support a finding that Calisto delivered a

purchase agreement to [Rodgers], see trial exhibit P-4.” Id. at 4. “The fact

that the seller is identified as Joan Calisto, not Michael Calisto, does not

invalidate the purchase agreement in light of the totality of the facts

surrounding the agreement.” Id. Moreover, he believes that the errors and

irregularities within the Sales Agreement were only technical violations of the

statute of frauds that we should overlook, because “the parties in fact entered

into a valid agreement for the sale of real estate.” Id. at 5.

The trial court, however, did not enforce this transaction based upon the

Sales Agreement. Instead, it only held that the three deeds were “sufficient

proof to satisfy the Statute of Frauds.” Trial Court Opinion, 11/28/18, at 10.

The trial court opined as follows:

[T]here was no conclusive proof at trial that the deeds for the properties, presented by and included in [Calisto’s] case-in-chief, were forged. In fact, [Calisto] had every opportunity to submit into evidence copies of the deeds that he believed were the true and original deeds. Instead, [Calisto] submitted into evidence copies of deeds that were allegedly forged by [Rodgers] without any other proof of their falsity. It would seem logical that [Calisto], the executor and sole beneficiary of his mother’s estate, would have access to the purported true deeds. [Calisto] argued

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that [Rodgers] should have known that the deeds could not be transferred by a decedent. However, [Rodgers] received the deeds from [Calisto] without reason to question the validity of the signatures as they were received from [Rodgers] as executor and beneficiary of his mother’s property. Again, the testimony and evidence presented at trial tipped the scales in favor of [Rodgers] based on the weight of the evidence presented by both parties.

This court, having no concrete evidence to contradict the validity of the deeds, finds that the Statute of Frauds has been satisfied . . . The court has seen no evidence to contradict the validity of the deeds themselves.

Trial Court Opinion, 11/28/18, at 10-11 (citation to transcript omitted).

The trial court therefore concluded that the deeds satisfied the statute

of frauds by a preponderance of the evidence; it did not consider or rely upon

the Sales Agreement to deny Calisto quiet title. Even so, we may sustain the

ruling below if the deeds are invalid but the Sales Agreement is enforceable,

because “this Court may affirm the decision of the trial court if it is correct on

any grounds.” Liberty Mutual Ins. v. Domtar Paper Co., 77 A.3d 1282,

1286 (Pa. Super. 2013), affirmed, 113 A.3d 1230 (Pa. 2015). We therefore

consider Rodgers’ suggestion that the Sales Agreement serves as an

alternative basis to affirm the trial court’s decision in detail below.

Initially, we recognize that this appeal arises from the trial court’s decree

in Calisto’s action to quiet title, in which Calisto invoked the equitable power

of the courts to amend the property records of Philadelphia County. When

reviewing equitable matters, our scope and standard of review is generally

deferential to the trial court.

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We will reverse only where the trial court was palpably erroneous, misapplied the law, or committed a manifest abuse of discretion. Where there are any apparently reasonable grounds for the trial court’s decision, we must affirm it. Moreover, the function of this Court on an appeal from an adjudication in equity is not to substitute our view for that of the lower tribunal; our task is rather to determine whether a judicial mind, on due consideration of all the evidence, as a whole, could reasonably have reached the conclusion of that tribunal. Additionally, we note that when reviewing the results of a non-jury trial, we are bound by the trial court’s findings of fact, unless those findings are not based on competent evidence.

Nebesho v. Brown, 846 A.2d 721, 725-726 (Pa. Super. 2004) (citations and

some punctuation omitted).

Significantly, Calisto has not challenged the factual findings of the trial

court; thus, we must accept them as true. Here, the trial court found that, by

a preponderance of the evidence, Rodgers and Calisto orally agreed that

Calisto would sell the three properties for $150,000 cash and memorialized

their understanding as the Sales Agreement. Hence, we accept that Rodgers

likely paid Calisto the full purchase price, and Calisto likely gave Rodgers three

deeds, bearing Joan Calisto’s signatures. Thus, we must determine whether

those deeds, which Calisto probably signed on behalf of his late mother and

for which Rodgers probably paid $150,000 cash, satisfy the statute of frauds,

as a matter of law.7 As we explain, the deeds do not satisfy the statute of

frauds, and the Sales Agreement is equally void under that statute. ____________________________________________

7This issue correlates to the now-final judgment of Judge Ransom in Rodgers v. Calisto, supra. Neither party suggested that the other decision obstructs

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1. The Will and the Invalid Deeds

We begin our analysis by reviewing the statute of frauds, the will of Joan

Calisto, and the three deeds in question.

The statute of frauds provides, in relevant part, “no . . . lands . . . shall

. . . be . . . granted . . . unless it be by deed or note, in writing, signed by

our appellate review here. Calisto asserts Judge Ransom’s decree was proper and should persuade us that “the decision [on appeal] should be reversed.” Calisto’s Supplemental Brief at 3. Rodgers contends that Rodgers v. Calisto was not a judgment on the merits. See Rodgers’ Supplemental Brief at 2.

A judgment on the merits is one “based on the evidence rather than on technical or procedural grounds.” BLACK’S LAW DICTIONARY 972 (10th ed. 2014). Judge Ransom ruled Rodgers had no competent evidence to prove ownership under the statute of frauds. Rodgers, therefore, failed to make his prima facia case. Thus, contrary to Rogers’ argument, this was an evidentiary-based decision – i.e., a judgment on the merits.

We also note that Calisto did not object to Rodgers’ parol testimony before Judge Shreeves-Johns, as he did before Judge Ransom. Indeed, Calisto nearly waived the statute-of-frauds issue in this appeal. A party waives the statute-of-frauds defense:

if he does not [raise it] by pleading specially or interposing a timely objection to testimony in support of the oral agreement, or by claiming its protection in some other manner that gives the opposition opportunity to meet the objection. . . . To permit a party to invoke the statute of frauds for the first time on appeal would be manifestly unfair.

Sferra v. Urling, 195 A. 422, 426 (Pa. 1937). Calisto did not plead the statute of frauds or object to Rodgers’ testimony regarding the oral agreement. In fact, his attorney never even mentioned the statute of frauds during the two-day trial. He did, however, raise it in a motion for summary judgment (albeit it in front of a different judge) and in his pretrial statement. Because Judge Shreeves-Johns had the benefit of the pretrial statement and the filings gave Rodgers notice of the statute-of-frauds theory, we find this issue preserved.

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the party . . . granting . . . the same . . . .” 33 P.S. § 1 (emphasis added).

It mandates “in effect that no agreement for the sale of real estate will be

enforced unless it is in writing and signed by the party to be charged.” Fannin

v. Cratty, 480 A.2d 1056, 1058 (Pa. Super. 1984).

Here, the trial court found that the three deeds satisfied the statute,

because Calisto probably delivered them to Rodgers in exchange for $150,000

cash. However, Rodgers’ and Hattisha’s testimony constitutes parol evidence.

Under the statute of frauds, their testimony was outside the trial court’s scope

of review when deciding the issue of legal title, because the deeds were facially

invalid and Rodgers did not raise or satisfy the doctrine of part performance.

See Note 8, infra. Additionally, the trial court criticized Calisto for not

producing “the deeds that he believed were the true and original deeds.” Trial

Court Opinion, 11/28/18 at 10. Faulting him in this manner ignores the

undisputed fact that Calisto produced his mother’s will as written evidence of

his title.

As a matter of law, the trial court should have limited its inquiry to Joan

Calisto’s will and the four corners of the deeds, because the only valid manner

for transferring an interest in land is “by deed or note, in writing . . . .” 33

P.S. § 1. According to the deeds, Joan Calisto transferred title to these three

properties, not Michael Calisto. Rodgers, however, conceded that Joan

Calisto had been dead for 15 years when he claimed to receive title and that

he was fully aware of that fact before he accepted deeds listing her as grantor.

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At Joan’s death, title to the properties passed to Calisto in her will. See

20 Pa.C.S.A. § 301(b) (directing that title to land immediately transfers at an

owner’s death to her heirs by operation of law). Hence, Joan Calisto had no

title to grant in July 2016. The statute of frauds required the signatures of

Michael Calisto (the current owner) in order for the deeds to have any legal

effect.

Granted, courts liberally construe the statute of frauds when deciding

what constitutes a valid signature. “The signature to a memorandum may be

any symbol made or adopted with an intention, actual or apparent, to

authenticate the writing as that of the signer.” R ESTATEMENT (SECOND) OF

CONTRACTS § 134. “[T]here is no requirement in the statute [of frauds] or the

decisional law that a signature be in any particular form. Instead, the focus

has been on whether there is some reliable indication that the person to be

charged with performing under the writing intended to authenticate it.”

Hessenthaler v. Farzin, 564 A.2d 990, 993 (Pa. Super. 1989) (emphasis in

original).

Even given liberal construction, the signatures on these deeds give no

indication — much less a reliable one — that Michael Calisto authored them.

The three signatures are identical, and they appear to match the signatures

of Joan Calisto on a mortgage that she signed during her lifetime. See N.T.,

3/26/18, 41-42. As such, no reasonable person could conclude from the face

of the deeds alone that Michael Calisto signed those writings. Because the

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deeds were not “signed by the party [allegedly] granting” title, the deeds do

not satisfy the statute of frauds. 33 P.S. § 1.

The trial court concluded Calisto signed his mother’s name as her

executor, but the writings themselves contradict that holding.8 If the

signature line on the deeds had read “Joan Calisto, by the Executor of her

Estate, Michael Calisto” (or something similar), the writings themselves would

support the trial court’s conclusion. They do not.

Historically, when, as here, a supposed grantor’s signature stands alone

and another allegedly signed for her, such a signing can be valid only “if the

grantor’s name be affixed by another in the grantor’s presence and by [her]

oral direction . . . .” Browne, A TREATISE ON THE CONSTRUCTION OF THE STATUTE

OF FRAUDS AS IN FORCE IN ENGLAND AND THE UNITED STATES § 12(b) (5th ed. 1895)

(emphasis in original). Obviously, no one signed Joan Calisto’s name in her

8 While we may affirm the trial court’s decision on any grounds, such as the equitable doctrine of part performance, Rodgers’ tendering of the full purchase price, without more, is insufficient to invoke that doctrine. The part- performance doctrine applies if a purchaser proves that he “paid consideration for the land; that the buyer took possession of the land; that the buyer’s harm could not be compensated in damages; and that a rescission would be manifestly unfair.” Firetree, Ltd. v. Dep’t of Gen. Servs., 978 A.2d 1067, 1074 (Pa. Cmwlth. 2009) (citing Greenwich Coal & Coke Co. v. Learn, 83 A. 74 (Pa. 1912)). See also Zuk v. Zuk, 55 A.3d 102 (Pa. Super. 2012) (affirming an equitable decree for the specific performance of an oral contract for land, because the purchasers produced a canceled check for the down payment, entered the property, and made substantial improvements to the previously undeveloped lot). Here, Rodgers has not entered into possession of the townhouses, nor has he made any improvements. Thus, equity may not specifically compel Calisto to perform the oral contract and transfer title to Rodgers on these facts.

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presence, at her oral direction, in 2016. The deeds, on their face, do not

support the trial court’s factual finding that Calisto likely signed them on behalf

of his mother or her estate, and the statute of frauds bars a trial court from

finding that the parties transferred an interest in real estate by a simple

preponderance of the parol evidence.

In Kurland v. Stolker, 533 A.2d 1370, 1372 (Pa. 1987), the Supreme

Court of the Pennsylvania, when faced with a real-estate transaction that the

alleged seller argued violated the statute of frauds, rejected the chancellor’s

application of the more-likely-than-not standard for fact finding as legally

insufficient. There, as here, the parties presented competing stories regarding

a sale of land, and the person asserting that he purchased the property failed

to produce legally sufficient writings. He therefore asked the court of equity

to enforce the parties’ agreement based on parol evidence. The chancellor

found the buyer’s testimony and other parol evidence more credible than the

record titleholder’s evidence and testimony disproving the sale. The court of

common pleas therefore entered a decree favoring the buyer.

On appeal, this Court affirmed in a per curiam order adopting the decree

of the chancellor. The Supreme Court reversed and held that the buyer’s parol

evidence was legally insufficient to prove that a sale had occurred, such that

equity could force the alleged seller to relinquish his title.

The Kurland Court explained that, given the heightened risk of perjury

on both sides of a land transaction, the General Assembly has dictated through

the statute of frauds that parol evidence is at its weakest in cases where the

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buyer cannot produce a legally enforceable writing. Moreover, the party

seeking to prove a transfer of land by parol evidence must satisfy a burden of

proof even greater than the “beyond reasonable doubt” standard of criminal

cases. “Land is the most important and valuable kind of property . . . there

is no other stake for which man will play so desperately. In men and nations,

there is an insatiable appetite for lands, for the defense or acquisitions of

which money and even blood sometimes are poured out like water. The

evidence of land-title ought to be as sure as human ingenuity can make it.”

Kurland v, 533 A.2d at 1372 (quoting Moore v. Small, 19 Pa. 461 (1852)).

“But, if left in parol, nothing is more uncertain, whilst the temptations to

perjury are proportioned to the magnitude of the interest.” Id.

“The object of the statute [of frauds] is to prevent the assertion of verbal

understandings in the creation of interests or estates in land and to obviate

the opportunity for fraud and perjury.” Id. Moreover, we presume a would-

be buyer knew the statute of frauds and its demands prior to commencing a

land transaction. See id. Where, as here, a person pays for land without

taking a legally sufficient deed, that person “has acted with great negligence

and folly . . . .” Id. at 1373 (quoting Hart v. Carrol, 85 Pa. 508, 511 (1877)).

If he later “requests a court to interfere for him, and save him from the

consequences of his own disregard of the law, when he asks the court to

decree in his favor, in the face of the letter of the law, he should be held rigidly

to full, complete, satisfactory, and indubitable proof.” Id.

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Therefore, the Kurland Court held that the level of “indubitable proof”

necessary for parol evidence to satisfy the statute of frauds “is evidence that

should not only be found credible, but of such weight and directness as to

make out the facts alleged beyond a doubt.” Kurland, 533 A.2d at 1373

(emphasis in original). Furthermore, the party seeking to avoid the statute of

frauds has the burden of proof. See id. at 1376. Thus, in the instant case,

the trial court erred by placing the burden of proof upon Calisto to show that

the statute of frauds applied, rather than placing it upon Rodgers to prove

satisfaction of the statute by “such clearness and directness as will leave no

doubt as to [the evidence’s] meaning and purpose.” Id. at 1373. As a matter

of law, Rodgers’ parol evidence was legally insufficient to meet the “beyond a

doubt” standard of Kurland to take a transaction outside the statute of frauds.

First, the deeds’ dates cast doubt upon Rodgers’ story. He testified that

he met Calisto on July 13, 2016 and that they consummated the sale on or

around July 26, 2016, but the deeds bear an execution date of July 7, 2016.

Second, Rodgers only offered his word against Calisto’s to prove that

Calisto signed his mother’s name and vouched that this would legitimatize the

transaction. While the trial court found Rodgers more credible than Calisto

and that his story was probably true, the preponderance-of-the-evidence

standard of proof and Rogers’ uncorroborated testimony leave room for doubt,

in violation of Kurland.

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Third, the testimony of Rodgers and Hattisha regarding the transfer of

the deeds and the cash do not coincide. Under Rodgers’ version, the exchange

occurred inside one of the properties and lasted about 15 minutes:

It didn’t just happen just that fast. We went inside the house. We went inside the house. The money was in denominations. It was all in hundreds so there wasn’t no need to really count it up. They were band up as far as, you know, bands and sort of denominations. It wasn’t no need to really, you know, count, so we was in there for about ten, 15 minutes.

N.T., 3/27/18, at 58. However, Hattisha recounted that the whole transaction

occurred outside; “they was standing on the sidewalk [and] . . . I seen that

Mr. Calisto had a folder in his hand. I've seen him do a transaction,” she said.

Id. at 17, 19. Even though the trial court found Rodgers and Hattisha credible,

their contradictory testimony “is not the full, complete, satisfactory, and

indubitable proof required by our law.” Kurland, 533 A.2d at 1375.

Lastly, Rodgers’ bank statements, although a writing, do not satisfy the

statute of frauds. Bank statements, unlike a cancelled check, do not prove

beyond doubt that Calisto received any money from Rodgers. Without

Rodgers’ parol evidence to explain where he spent the withdrawn cash, his

bank statements prove only that he withdrew money, when, and where those

withdraws occurred.

Hence, even though the trial court found Rodgers’ testimony more

credible and that Rodgers and Hattisha “tipped the scales,” Trial Court

Opinion, 11/28/18, at 11, tipping the scales is not enough proof to satisfy the

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statute of frauds. Rodgers therefore provided legally insufficient proof to

enforce the facially invalid deeds by parol evidence. Rodgers’ parol evidence

to revise the deeds is “of an equivocal character; [it does not] have such

clearness and directness as will leave no doubt as to [the parties’] meaning

and purpose.” Kurland at 1373. “If titles to land are to be proved in the

manner that this record presents and if [trial judges and this Court] are to act

on doubtful parol proof . . . they would annul the wholesome provisions of the

statute in search of a visionary equity and introduce into the community the

very evils which the legislature intended to remedy.” Id. at 1375.

Under Kurland, the trial court needed to find beyond a doubt that this

land transaction occurred. It did not. If more-likely-than-not credibility

determinations may reform facially invalid deeds, then the statute of frauds is

dead. Because Rodgers lacked valid deeds and parol evidence of proving the

transaction beyond a doubt, the trial court should have quieted title in Calisto

under the only valid evidence of title – the will of Joan Calisto.

2. The Sales Agreement

Having explained the trial court’s misplaced reliance upon the facially

invalid deeds to defeat the statute of frauds, we turn to Rodgers’ suggestion

that we may alternatively affirm based on the Sales Agreement.9 ____________________________________________

9 The Sales Agreement reads, in pertinent part, as follows:

I. PARTIES TO CONTRACT – PROPERTY. Purchaser and Seller acknowledge that Broker is PRIME TIME

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REALTY . . . as authorized by Purchaser and Seller, MICHAEL RODGERS hereinafter referred to as

Purchaser, offers and agrees to purchase from JOAN CALISTO hereinafter referred to as Seller . . . the property legally described as:

BELOW LISTED PROPERTIES

EARNEST MONEY DEPOSIT. Earnest Money in the amount of ($ 150,00) [sic] ONE HUNDRED AND FIFTY THOUSAND DOLLARS Cash X Check______, Unless otherwise noted herein, shall be deposited into the trust account of the listing broker, PRIME TIME REALTY on the next legal banking day after acceptance of this offer.

Other earnest money provisions: $10,000 Down Payment to be credited toward purchase price.

2. PURCHASE PRICE. The total purchase price is to be ($ 150,000), ONE HUNDRED AND FIFTY THOUSAND DOLLARS _______________________________________________________________

After earnest money herein is credited, the remaining balance is to be paid by Purchaser at closing.

SALE OF PURCASER’S PROPERTY

A. This offer is not contingent upon the sale or close of property owned by Purchaser.

B. This offer is contingent upon the sale and close of Purchaser’s property located at

1. 424 n. 32nd Street 2. 647 n. 16th Street 3. 651 n. 16th Street

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* * * * * *

This Sale of the Properties is, As-Is because of the Dilapidated and needed Repairs of each of the Following Properties. The Buyer will assume all Liens and L&I Violations. 4. 424 n. 32nd Street 5. 647 n. 16th Street 6. 651 n. 16th Street

INITIALS: PURCHASER ____/ ____ SELLER ____/

TIME IS OF THE ESSENCE OF THIS CONTRACT.

Dated this 7 day of July 2016 at 3 a.m./p.m.

____________________________

Purchaser

On this 7 day of July, 2016 the foregoing offer is:

(Initial) ACCEPTED X

NOT ACCEPTED ___________

COUNTERED _________

Seller ____J.C.______ *********************************************** THE FOLLOWING IS FOR INFORMATIONAL PURPOSES ONLY:

PRIME REAL ESTATE, LLC

______[Illegible Signature]_________ Selling Company

Calisto’s Exhibit – 4 (italics indicates handwritten portions of contract).

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Initially, we observe that, like the deeds, the Sales Agreement indicates

that Joan Calisto and Rodgers executed it a week prior to Rodgers’ initial

meeting with Calisto. The Sales Agreement also contains many internal

inconsistences. For example, the identity of the “Seller” in the contract’s

terms and the so-called “Selling Company” do not match. Also, the earnest

money lists two amounts — $150,000, which is the full, purchase price, and

$10,000 as a down payment. Hence, this provision is internally inconsistent.

Additionally, the contingency provisions can never be fulfilled. The Sales

Agreement is conditioned on Rodgers’ sale and close of these same properties.

On July 7, 2016, Rodgers did not yet own these three properties, so, on its

face, Rodgers could never fulfill the condition precedent for this sale.

Moreover, several of the form contract’s terms – such as survey costs, building

inspections, and seller’s disclosures – remained incomplete. The author of the

contract also failed to identify the properties at issue by referencing any deed

books or parcel-identification numbers. In fact, the author only listed three

addresses and did not indicate in which city, county, or state those addresses

are located.

Finally, and, most importantly, the Sales Agreement is not a contract

between the parties at bar.

“The meaning of an unambiguous contract presents a question of law

for which our review is de novo.” Lesko v. Frankford Hosp.-Bucks Cty.,

15 A.3d 337, 342 (Pa. 2011).

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When interpreting contract language, we are to ascertain the intent of

the parties. “If the contractual terms are clear and unambiguous on their

face, then such terms are deemed to be the best reflection of the intent of the

parties.” Commonwealth by Shapiro v. UPMC, 208 A.3d 898, 909 (Pa.

2019). “A contract’s terms are considered ambiguous if they are subject to

more than one reasonable interpretation when applied to a particular set of

facts.” Id. (quotation marks omitted).

Also, if “an unconditional agreement has been made for the sale of land,

such as equity will specifically enforce, [the land] may properly be referred to

and treated as sold. Then the [buyer] becomes the equitable owner, and the

[seller] holds the legal title as trustee.” Byrne v. Kanig, 332 A.2d 472, 474

(Pa. Super. 1974). Thus, if this Sales Agreement were valid, we would have

no trouble concluding that an equitable conversion had occurred, assuming

Rodgers had argued for such a conversion. He did not. In that case, Calisto

would have only held legal title in trust until the day that Rodgers paid the

purchase price in full. See id. Here, however, the Sales Agreement is, by its

plain and unambiguous terms, conditional.

The parties to this Sales Agreement unambiguously conditioned its

becoming executory upon Rodgers successful transferring title to the very

properties he had yet to acquire under this Sales Agreement – a factual

and legal impossibility. See Calisto’s Exhibit – 4 at 2. By its own, clear terms

then, the Sales Agreement is perpetually conditional.

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Therefore, equity can only deem this Sales Agreement unconditional and

find an equitable conversion by overriding the fundamentals of contract law.

This, of course, equity may not do, because “equity follows the law.” First

Fed. Sav. & Loan Ass'n of Lancaster v. Swift, 321 A.2d 895, 898 (1974).

For it has been said, “Equity had come not to destroy the law, but to fulfill it.”

F.W. Maitland, LECTURES ON EQUITY at 17 (1909). Equitable enforcement of

this Sale Agreement to find an equitable conversion would destroy, rather than

fulfill, the law of contracts. Accordingly, because this Sales Agreement is, as

a matter of contract law, forever conditional, equity may not manufacture an

equitable conversion in favor of Rodgers pursuant to the plain language of this

Sales Agreement.

Furthermore, because a sales agreement has the same effect in equity

as a deed has at law, such a contract, under the statute of frauds and the

parol-evidence rule, is subject to the same degree of judicial scrutiny as a

deed. Like the Joan-Calisto-to-Rodgers deeds, this Sales Agreement must

also stand upon the contents of its own four corners, without recourse to parol

evidence.

As this Court has explained, “Where the parties, without any fraud or

mistake, have deliberately put their engagements in writing, the law declares

the writing to be not only the best, but the only, evidence of their

agreement.” PNC Bank, Nat. Ass'n v. Bluestream Tech., Inc., 14 A.3d

831, 841 (Pa. Super. 2010) (emphasis added). This rule mandates that the

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parties’ written “terms and agreements cannot be added to . . . by parol

evidence.” Id. (emphasis added).

“One exception to the parol-evidence rule applies for cases of fraud in

the execution in which the party proffering the evidence contends that he

executed the agreement because he was defrauded by being led to believe

that the document contained terms that actually were omitted therefrom.”

Youndt v. First Nat. Bank of Port Allegany, 868 A.2d 539, 546 (Pa. Super.

2005). Rodgers did not claim Calisto made him believe the Sales Agreement

contained terms that it does not. In fact, Rodgers’ Answer and New Matter

did not allege fraud at all.

Rodgers also does not ask this Court to find fraud in the inducement of

this contract, even though the trial court’s factual findings may support such

a theory. See id. Fraud in the inducement simply does not fit Rodgers’ ends

of acquiring title, because, if we were to find fraud in the inducement, the

remedy is the same as the statute of frauds. Fraud-in-the-inducement “theory

holds that, since fraud induced the agreement, no valid agreement came into

being and parol evidence is admissible to show that the alleged agreement

is void.” Youndt, 868 A.2d at 546 (2005) (emphasis added). Thus, even

accepting the trial court’s findings as true – i.e., that Calisto fraudulently

induced Rodgers to pay the $150,000 for deficient deeds – title still cannot

transfer to Rodgers under this void contract.

In addition, the parol-evidence rule carries considerably more force

when a court is reviewing a writing for the sale of land. In such cases, the

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parol-evidence rule unites with the statute of frauds; together, they forbid a

court from enforcing any writing that parol evidence has altered. The

Supreme Court of Pennsylvania, more than a century ago held that a “court

of equity cannot vary or rectify by parol an executory agreement in writing for

the sale of lands, and as thus varied, in the absence of an estoppel, specifically

enforce performance of it. . . . [W]here a written agreement is varied by oral

testimony, the whole contract in legal contemplation becomes parol.” Safe

Deposit & Tr. Co. of Pittsburg v. Diamond Coal & Coke Co., 83 A. 54, 58

(Pa. 1912) (emphasis added). “When, therefore, a party to an executory

agreement in writing for the sale of lands succeeds in reforming it by oral

testimony, he reduces the whole agreement to a parol contract.” Id. “He

pulls down the house on his own head. When he converts the writing into an

oral agreement, the statute [of frauds] declares it to ‘be void.’” Id.10

The statute of frauds demands that a writing for the sale of land “contain

a sufficient statement of the terms of the agreement and the signature of the

grantor.” In re Estate of Dotterrer, 579 A.2d 952, 954 (Pa. Super. 1990).

Here, the Sales Agreement, by its plain and unambiguous language, fails to

10 We note that, when “a written instrument fails to express the intention of the parties by reason of fraud, accident, or mistake, the injured party may invoke the equitable jurisdiction of the court which, by the aid of parol testimony, may reform it.” Safe Deposit & Tr. Co. of Pittsburg v. Diamond Coal & Coke Co., 83 A. 54, 57 (Pa. 1912). Here, unlike in Safe Deposit, Rodgers did not aver a count of fraud against Calisto. Nor did Rodgers allege an accident or mistake in the contract’s formation. Thus, those issues are not present in this case.

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do either. This contract fails to identify the parties, the properties it governs,

and does not contain a signature of the grantor.

The Sales Agreement indicates that it is a contract between Joan Calisto

and Rogers. As such, on its face, this contract does not govern the

relationship of these parties. Only by resorting to Rodgers’ parol testimony

regarding negotiations, formation, and the signing of this Sales Agreement

can he convert the contract from what it is (a contract between Joan Calisto

and Rodgers) into something it is not (a contract between Michael Calisto and

Rodgers).

The Sales Agreement also lacks the most essential term, because it does

not state with any degree of reliability which properties it transfer. The

agreement lists three addresses, without reference to a deed book, parcel-

identification numbers, a city, a county, or a state. Thus, it cannot be

determined within the four corners of the contract where one may locate them

or their metes and bounds. A writing “which omits or incompletely states the

essential terms . . . is insufficient.” Target Sportswear, Inc. v. Clearfield

Foundation, 474 A.2d 1142, 1148 (Pa. Super. 1984).

The only way that this Sales Agreement has any meaning at all is if we

rely upon Rodgers’ legally insufficient, parol evidence to identify which

properties the agreement governs and to conclude that the names “Joan

Calisto” and “Prime Real Estate, LLC” actually mean “Michael Calisto.” If we,

in equity, were to allow such parol testimony to alter the Sales Agreement,

based upon the trial court’s findings, then we would be reforming the contract

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from one between Joan Calisto and Rodgers to one between Michael Calisto

and Rodgers. We would likewise need to reform it from one that governs the

sale of no properties in particular – i.e., three, indeterminate address in some,

unidentified city or town – into a contract specifically for the sale of Calisto’s

three townhomes. Without parol evidence, it is impossible to know which

properties this contract is purporting to sell. This Sales Agreement epitomizes

uncertainty in land transactions, the very ill that the General Assembly sought

to curtail with the statute of frauds. See Kurland, supra.

In essence, Rodgers asks us to use the equitable powers of this Court

to transform the Sales Agreement from a writing into a parol agreement. As

Safe Deposit establishes, if we were to reform the Sales Agreement and

thereby convert it from a writing to a parol agreement, the statute of frauds

blocks us from enforcing it, as surely as the statute blocked our enforcement

of the facially invalid deeds that Rodgers recorded. In the end, Judge Ransom

correctly opined, “the proof of [Rogers’] claim that he is the rightful owner of

the property is not based on any testimony that he might give . . . .” Rodgers

v. Calisto, N.T., 2/12/19, at 25. For when Rodgers gives such testimony to

reform the Sales Agreement or to edit the facially invalid deeds, he “pulls

down the house on his own head.” Safe Deposit, 83 A. at 58.

With or without out equitable reformation, Rodgers’ alternative theory

that he may take title to the townhomes under the Sales Agreement fails.

Without reformation, the contract hangs in legal limbo. It is a perpetually

conditional, non-executory, contract with a woman who was deceased when

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he typed his “X” onto it, for the sale of three, unidentified properties. With

reformation, Rodgers has only a parol agreement, which the statute of frauds

renders unenforceable as a matter of law. Either way, the July 7, 2016 Sales

Agreement, between the late Joan Calisto and Rodgers, is an insufficient basis

to affirm Judge Shreves-Johns’ decision.

While we understand that this result likely appears harsh from Rodgers’

perspective, the Supreme Court said, a buyer of real estate “is presumed to

know that the law requires, as evidence of the title to land, that the contract

must be made in writing.” Kurland, 533 A.2d at 1373. This writing only

applies to these parties if Rodgers resorts to parol evidence and thereby

converts it to an unenforceable parol, agreement. Thus, he has not taken the

proper and legal evidence that the law requires to transfer title to land. A for-

cash buyer “has acted with great negligence and folly [if he has] paid his

money without taking the proper and legal evidence.” Id. (quoting Hart at

511).

Calisto’s second claim of error is meritorious. The statute of frauds

invalidates Rodgers’ deeds and renders the Sales Agreement void. However,

our analysis does not end here.11

C. Balancing the Equities

11Because Calisto proved he deserves an equitable decree quieting title to the three properties, we dismiss his third claim of error, regarding how the trial court viewed the procedural posture, as moot.

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Turing to the equities at issue in this case, the heightened scrutiny of

Kurland, supra, no longer applies, and, therefore, the factual findings of the

trial court by a preponderance of the evidence once again carry their usual,

binding authority upon this Court. As mentioned, Calisto did not appeal the

basic premise of the trial court’s factual findings — i.e., that he more-likely-

than-not took $150,000 from Rodgers by giving him invalid deeds. Thus,

equity will not sit idly by while Calisto unjustly enriches himself with Rodgers’

purchase money.

The jurisprudence of this Commonwealth has long recognized important

principles of equity. Nearly a century ago, we held that when one requests

equity from the court, he must do equity. Smith v. Yellow Cab Co., 135 A.

858, 860 (Pa. 1927) (“he who would have equity must do equity.”) An

equitable decree in one’s favor must not harm those who are, or may be,

affected thereby. Id. Consequently, when a party invokes the equitable

powers of a court, equity may do justice for all of the litigants and vindicate

their legal rights simultaneously. See Ezy Parks v. Larson, 454 A.2d 928,

936 (Pa. 1982).

In granting Calisto the equitable relief he sought, this Court is therefore

empowered to return both parties to the positions they occupied before this

unenforceable transaction for the sale of land. Under the facts as found by

the trial court, Rodgers is entitled to restitution damages. Such damages may

“be imposed for breach of an oral agreement . . . notwithstanding the fact that

the statute of frauds rendered the oral agreement unenforceable for specific

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performance.” Fannin, 480 A.2d at 1059. “A party who would otherwise

have a claim in restitution under a contract is not barred from restitution for

the reason that the contract is unenforceable by him because of the Statute

of Frauds.” Wilson v. Parker, ___ A.3d ___, ____, 2020 WL 400240 *9 (Pa.

Super. 2020) (quoting RESTATEMENT (SECOND) OF CONTRACTS § 375).

Consistent with the purpose of the statute of frauds, the award of such

damages does not enforce the oral contract, but rather nullifies it. See

Wilson. Having set aside the oral contract between Calisto and Rodgers to

purchase the townhouses, equity requires Calisto to return the $150,000 he

received from Rodgers for these properties.

IV. Conclusion

In sum, we vacate the order denying Calisto’s motion for post-trial relief

and remand for the entry of a decree that Calisto, under his mother’s will, has

good and legal title to the three townhouses, as against the whole world (i.e.,

an award of quiet title in favor of Calisto). In addition, as Calisto requested

in his complaint, the trial court shall direct the Department of Records in

Philadelphia to ensure that the chain of title for the three properties comports

with this decision. Lastly, the trial court shall order Calisto to pay Rodgers

$150,000 (plus interest since the date of the invalid deeds’ recording)12 in

12See Wilson v. Parker, ___ A.3d ___, 2020 WL 400240 (Pa. Super. 2020) (awarding interest on the purchase price when the statute of frauds nullifies a sale of land).

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restitution and enter a judgment to that effect in favor of Rodgers. The trial

court shall retain jurisdiction over the parties until they carry out its order.

Judgment and order denying post-trial relief vacated. Case remanded

for further proceedings consistent with this decision.

Jurisdiction relinquished.

President Judge Emeritus Ford Elliott joins the memorandum.

Judge Bowes files a dissenting memorandum.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/6/20

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